Connecting Minimum Age Restrictions in NBA/NFL with Jim Tressel and Ohio State mess
Message posted on : 2011-05-31 - 17:00:00
Sports Illustrated's Zach Lowe makes the connection in this piece, in which he interviews Alan Milstein, a contributor to this blog who litigated on behalf of former Ohio State running back Maurice Clarett in his antitrust challenge to the NFL's age limit in 2004 [I provided Alan with legal analysis during the litigation].
Here are a couple of excerpts of Zach's piece:
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As I devoured SI's fantastic Jim Tressel reporting and the avalanche of stories covering Tressel's resignation from Ohio State University, I kept thinking back to the concept of age limits in the NBA and other leagues, even though the age limit issue is not precisely implicated in the Tressel case.
Amid all the alleged details of no-show jobs, tattoos-for-memorabilia, small cash gifts and cars (oh so many cars), I asked myself two questions:
1) Why do we care about this?
2) Why are these players in college?
* * *
The [NBA] has made noise about upping it to 20, a move the players' union has said it opposes, even though the union does not represent players outside the league. Some members of that union — marginal veterans — have at least a slight interest in keeping the best 18-year-olds out of the league, right? Sources close to both sides have said the age limit is a very minor issue amid the collective bargaining talks, so it's unclear exactly what the rule will look like a year from now.
Alan Milstein is a lawyer who represented Maurice Clarett in the Ohio State running back's suit against the NFL's age limit, and he has said before that he is looking around for the right player to challenge the NBA's rule. Milstein told me today that any move to increase the age limit will accelerate his fight against it. “If they add another year, I have absolutely no doubt that somebody will be ready to challenge it,” Milstein said. “It will certainly make the pool of potential litigants bigger.”
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To read the rest, click here. Posted By : Michael McCann
Down Go the Dodgers: the Stow Suit Deepens the Debacle
Message posted on : 2011-05-31 - 00:00:00
The legal web cast over the storied Los Angeles Dodgers franchise just keeps getting more tangled. The family of injured San Francisco Giants fan, Bryan Stow, filed a nine-count Complaint against the Dodgers, its various holdings, and owner Frank McCourt. Stow was severely beaten in the parking lot following the opening day game between the Dodgers and Giants and remains in a coma in a San Francisco hospital. The much publicized incident has occasioned harsh criticisms on Dodgers management, but has also inspired generous charitable contributions from many parties, including much maligned former Giant, Barry Bonds. The Complaint includes various counts ranging from negligence, infliction of emotional distress, loss of consortium, and assault and battery. The full Complaint can be read here.
The allegations paint a picture of gross mismanagement of funds and resources attributable to the McCourts. The public picture already painted by the much publicized divorce proceedings between McCourt and his wife, Jamie, and their insistence on maintaining their posh lifestyle despite financial misfortune would seem to support the allegations. The complaint focuses on a myriad of inadequate security measures in place as a result of McCourt's lapses in judgment and spending. Dodger stadium was built in 1962, and the Stows partially attribute the incident to inadequate and antiquated parking lot lighting where the beating occurred. A further contributing factor cited is the “half-off” alcohol promotion for day games at Dodgers Stadium. The most obvious danger, however, is the vastly insufficient quantity and quality of security personnel. McCourt subsequently acknowledged the shortcomings in security (including a drop in the number of uniformed police utilized and no chief of security) and took remedial measures, but that is of little consequence to Stow and his family.
Following, but presumably unrelated to, this heinous incident, Major League Baseball assumed control of the Dodgers. By all counts, MLB was compelled to this move by an apparent lack of financial management. The Commissioner can assume control of teams under his broad power to act in the best interest of baseball and clearly it is his prerogative to prevent further embarrassment to a once proud franchise and ensure the safety of patrons. Mike discussed the full legal ramifications of the takeover in his Sports Illustrated column last month.
Generally, spectators assume the risks associated with attending a live sporting event (e.g. foul balls), but that does not preclude an owner's liability when certain actions or omissions exceed the spectator's reasonable expectations, like assault and battery. Fortunately for the Dodgers Defendants, the general rule is that premises owners are not liable in tort for the intervening criminal acts of third-parties. However, a question for consideration that may allow the Plaintiffs here to survive dispositive motions are what level of security was provided by the Dodgers to patrons in the parking lots and at the taxi stands prior to the incident, as the same may show that the Dodgers assumed a level of control that removed the organization from claiming shelter from liability for the intervening criminal acts of third-parties. Remember that actions taken by the Dodgers, under MLB control and otherwise, since the incident
would likely not be allowed as evidence in a liability action against the Dodgers as the same would be regarded as a post-remedial measure.
It will be interesting to see what, if any, say MLB has with regard to the named Dodgers Defendants as the same are now under some level of control by the League; a control that McCourt has been fighting against. Certainly the filing of this lawsuit is not helping the League's efforts to reverse the downward spiral the Dodgers organization finds itself in. Posted By : Tim Epstein
Changing rules
Message posted on : 2011-05-30 - 10:33:00
MLB, team officials, and the media are talking about the rules governing collisions at home plate, following the pretty gruesome injury Giants Catcher Buster Posey suffered in this collision last week.
ESPN's Jayson Stark inadvertently touched on two significant jurisprudential issues and how sports reveals them. First, Stark decries that it took this injury to get people talking about changing these rules:
It always takes something like this -- something like the horrifying sight of Buster Posey lying there, face in the dirt, writhing in pain -- to get folks talking. Why is that, anyway? Now, after the fact, people are asking what we can do to protect both catchers and baserunners from these scary two-vehicle pileups at home plate. NOW, in retrospect, people wonder if there's a way to tweak the rulebook in the name of safety. So here's a question: How come, in baseball, we never seem to have conversations about what we can do to prevent these moments BEFORE they happen? Why is it always after the fact?
Why? Because law is almost always reactive. Legislators (and, as I have argued before, the Commissioner and MLB are, at bottom, legislative actors) make legal rules in response to a problem, usually after the problem has been demonstrated by one fairly horrific or problematic example. But that is in the basic nature of legislation. We usually do not know we need to change a legal rule to prevent X until X occurs and we see the full consequences of X. Or at least to see the full consequences of X to know that the cost of allowing X to continue outweighs whatever benefits from it.
Moreover, law responds to individual stories, which are what overcomes the stasis needed to change rules, even in a relatively simple system such as a sports league. Collisions at home were not considered a problem in need of a solution; the occasional high-profile injury (Ray Fosse, anyone?), while known and unfortunate, did not outweigh these collisions as a long-standing part of the game. Now, everyone is rushing to act because this one set of facts put the issue on the legislative table.
Second, Stark points out that: 1) No one can figure out what the best rule should look like and 2) Catchers were the group most opposed to changing the rules. This demonstrates the problem of legislating off of single, rare, especially horrific stories or sets of facts. Rulemakers tend to ignore the uniqueness of the one story or its outlier nature and rush to change the rule to make sure this unique event does not happen again. But in doing so, they risk eliminating the positive aspects of the old rule and creating a new regime that, while eliminating the targeted problem, creates a host of new ones. In a rush to act, they also risk misweighing the costs/benefits of the old rule, ignoring that the unique story is "part of the game" and outweighed by its benefits. This is why it is so telling that the players most affected by the situation oppose the change--they understand that injuries happen and accept that as the risk. The question is
how much rulemakers will consider that "expertise." On the other hand, I am surprised no one has mentioned concussions and head injuries. Although there is no evidence of a problem based on diagnoses, it is logical that some head injuries are involved with the sorts of collisions involved. If so, it gives legislators something to act on beyond this one particularly gruesome case. Posted By : Howard Wasserman
Good piece by National Law Journal on 8th Circuit and NFL Lockout
Message posted on : 2011-05-27 - 19:22:00
Marcia Coyle interviews Robert Boland, Michael LeRoy, and me for this story, which is a good read. The online version of the story is available at this link. Posted By : Michael McCann
Upcoming Sports Law Seminar in Minneapolis
Message posted on : 2011-05-27 - 07:20:00
Steven Silton, a partner at Hinshaw & Culbertson in Minneapolis, has let me know of what should be an excellent sports law seminar on Friday, June 17. The event is hosted by Hinshaw & Culbertson and Brewer Sports International. Drew and Jason Rosenhaus will be speaking, along a number of other prominent persons in the industry - click on the image to the left for more info.
While the event is invite only, Sports Law Blog readers will be given preference if they are interested in attending.
Here is the invitation:
On behalf of Hinshaw & Culbertson LLP and Brewer Sports International, we are pleased to invite you to the Sports Law for Rookies and Veterans seminar on Friday, June 17, 2011, located in downtown Minneapolis. This unique program represents the intersection of issues in professional and amateur sports, media, and the law. We have assembled a panel of industry leaders from across the country including Superagents Drew and Jason Rosenhaus, Minnesota Timberwolves Chief Marketing Officer Ted Johnson, sports radio host Henry Lake and representatives of the NFLPA. The program will include a special lunchtime presentation of the “Champion's Code” from best-selling sports author Ross Bernstein.
We are pleased to offer this complimentary seminar, with lunch provided, to you and another guest within your organization. Attached please find additional details regarding the program. To RSVP, please use the link on the attached or contact Marie Pocock of Hinshaw & Culbertson LLP at mpocock@hinshawlaw.com or 612-334-2512.
Please note, this exclusive program is by invitation only and space is limited. Should you have more than one person from your organization that would benefit from this event, please contact Marie.
Finally, this seminar is the official kick-off for the 6th Annual JBF Worldwide Blue Carpet Celebrity Weekend. Please visit www.jbfworldwide.org for more details (or the event's Facebook page). We welcome you to stay the weekend and support the great things that JBF is doing around the world. For your convenience, a block of guest rooms has been reserved at Le Meridien Chambers. Reservations must be made by Friday, May 27. Please be sure to reference the Brewer Sports International room block to receive the discounted rate.
We hope you will consider taking time out of your busy schedule to join us for this exciting program. Please feel free to contact either of us with any questions.
Truly,
Steven H. Silton Hinshaw & Culbertson LLP
Jack Brewer Brewer Sports International
Posted By : Michael McCann
European Soccer Adopts Salary Cap without Collective Bargaining: Antitrust Implications
Message posted on : 2011-05-26 - 14:34:00
Over on The Conglomerate, Wharton professor David Zaring writes about the antitrust implications of European Soccer adopting a salary cap (Part 1, Part 2). As there is no players association with which to bargain, the cap has been unilaterally imposed.
I talk to David about the antitrust implications and to what extent extraterritorial reach of federal antitrust law, along with EC Treaty antitrust provisions, could pose hurdles. Posted By : Michael McCann
Sports and politics, mixed
Message posted on : 2011-05-26 - 09:01:00
Let no one say sports and politics do not mix all the time. In DC's Congressional Softball League, the team from the Office of National Drug Control Policy (the "Czardinals") pulled out of a scheduled game with a team of people from various drug-policy reform groups (the "Capitol Hemp One Hitters") (H/T: Deadspin). According to a press release from the One Hitters, this is the sixth time that the Czardinals have backed out of a game with them--reflecting on the softball field that office's attitude "on the national stage" towards those who even propose or want to discuss legalization as a policy option. Posted By : Howard Wasserman
"South Park" nails the NCAA
Message posted on : 2011-05-26 - 08:47:00
Last night, South Park aimed its satire at the NCAA, in an episode titled Crack Baby Athletic Association. Cartman videos sessions of crack-addicted newborns playing with a ball filled with crack and posts them on the internet, where it become a viral sensation. The kids are making tons of money and even begin negotiating with EA Sports to make a crack-baby basketball video game. But Kyle feels guilty that the babies are not receiving anything from the arrangement; in a series of one-sided conversations with Stan, Kyle throws out every justification/rationalization for why the babies still benefit and why the system is fair and works for them, even if they do not get the money they are generating. There also is a scene of Cartman doing a home visit with a pregnant addict, "signing" her soon-to-be-born son to play for St. Mary's Hospital and explaining to the mother that they will not receive money because "benefits to players would be detrementalizing to their well-being" (although he does offer the mother crack). Posted By : Howard Wasserman
Sports Law Analytics
Message posted on : 2011-05-25 - 14:00:00
As a prequel to a longer/technical article that is currently under review at a journal, Tassos Kaburakis and I recently published an essay in Analytics entitled "Sports Law Analytics." Analytics is a quasi-academic publication published by the Institute for Operations Research and the Management Sciences ("INFORMS"). There is an accompanying INFORMS podcast too. Our essay outlines the parameters for expert witness testimony and alludes to some of the quantitative methods often used in sports-related disputes. We specifically highlight the potential role of analytics in American Needle v. NFL, et al and the Keller/O'Bannon litigation. Our sequel includes a empirically-driven discussion of the issues highlighted by Mike McCann in a recent Chronicle article by Brad Wolverton. With the sports industry increasingly turning to analytics for insight, we have found the application of statistical tools to real-world sports law issues (e.g. the efficacy of age eligibility rules) to be a fascinating research line. Posted By : Ryan M. Rodenberg
New Sports Illustrated Column: NBA Players' Union files Unfair Labor Practices Charge
Message posted on : 2011-05-24 - 22:28:00
I have a new SI column on the NBA players' union makes the first move in a potentially protracted labor dispute with NBA. Here's an excerpt:
* * *
Tactically, the NBA players' union may have learned from its NFL counterparts' struggles before the U.S. Court of Appeals for the Eighth Circuit. The NBA players' union may believe that its legal claims would fare better before the NLRB than they would before federal judges, even federal judges who preside over a different federal circuit than the Eight Circuit. As a result, the players' union may be trying to accelerate the NLRB's review process and to put the league on the defensive.
The NBA players' union is also in a different situation than the NFLPA, which by virtue of its collective bargaining agreement with the NFL, had to decertify before the CBA expired in March or wait until September to do so. By decertifying, a players' union can bring antitrust claims against the league and more readily get courts involved. The NBA players' union is not under the same pressure to decertify and thus may prefer to first seek redress before the NLRB.
* * *
To read the rest, click here. Posted By : Michael McCann
On league integrity and the nature of sports
Message posted on : 2011-05-19 - 13:18:00
At halftime of Tuesday night's Western Conference Final, the NBA held the draft lottery, in which Cleveland won the first pick and Minnesota won the second. Cleveland was represented on stage by Nick Gilbert, the 14-year-old son of owner Dan Gilbert; Nick suffers from Neurofibromatosis, a nerve disorder that causes tumors to grow in his body anywhere and anytime. Afterwards, Minnesota GM David Kahn said the following:
This league has a habit, and I am just going to say habit, of producing some pretty incredible story lines. Last year it was Abe Pollin's widow and this year it was a 14-year-old boy and the only thing we have in common is we have both been bar mitzvahed. We were done. I told Kevin: 'We're toast.' This is not happening for us and I was right.
On PTI Wednesday, Tony Kornheiser said the following (the whole discussion starts around the 3:00 mark): "I have no idea if the lottery is fixed. . . . But if it's fixed, I'm 100 % for that. This is a closed corporation. If they want to go around and improve certain teams in certain way, I'm OK with that." Kornheiser viewed this as, essentially, a make-up call for Cleveland after "The Decision." Similarly, it was OK to reward the Wizards last year after the death of long-serving owner Abe Pollin. And, by implication, it was OK to reward the Knicks with Patrick Ewing in 1985, which lifted one of the league's signature franchises.
That cannot be right. The league sells itself as being engaged in open competition, results determined by luck (the lottery) or a combination of skill and luck (games and just about everything else). That, in truth, is the essence of sports and sports leagues. The league cannot surreptitiously control or manipulate that competition in any way. To do so flies in the face of what the league is promoting and what professional sport is supposed to be about. Plus, the logic of the argument cannot be limited to the lottery, but must extend to play on the court. Can the league now directly dictate game and playoff series outcomes (as opposed to indirectly, which the NBA already does, by controlling officiating assignments and giving officials "guidance" of how to call games)?
The notion of games and players being played completely above board is essential to the idea of sport and to getting fans to take sports seriously. And it was not always so. Prior to 1920, baseball was perceived as a step up from professional wrestling. The big shock in the Black Sox Scandal was not that the players had thrown the Series, but that it was the first time anyone had been caught. There were suspicions and rumors of a fix as early as the 1903 Series. And the NBA faced a genuine crisis following the officiating debacle that was the 2006 Finals, when fans raised genuine concerns about league manipulation.
I agree with Kornheiser in one respect--the NBA could dump the lottery altogether and establish a draft order based on arbitrary favoritism or a desire to help one team or another (the Chicago Bulls were assigned the first pick in the ABA Dispersal Draft in 1976 so they could draft Artis Gilmore). Just as the league could start pre-determining winners. But it has to be transparent and above board that this is how things are being done and this is why. And it no longer can sell itself as sport. Posted By : Howard Wasserman
The NCAA Responds to the DOJ's Letter Regarding the BCS
Message posted on : 2011-05-19 - 10:00:00
The NCAA formally responded on Wednesday to the letter it received earlier this month from the U.S. Department of Justice regarding the legality of the Bowl Championship Series. In the response, NCAA President Mark Emmert largely deferred to the BCS to answer the Justice Department's inquiry, stating that "because the BCS system does not fall under the purview of the NCAA, it is not appropriate for me to provide views on the system."
37th Annual Sports Lawyers Association Conference in DC
Message posted on : 2011-05-18 - 09:00:00
This week the Sports Lawyers Association will hold their 37th Annual Conference in Washington DC. This annual event is the premier gathering of sports lawyers from around the country and this year's conference once again brings some of the industry's leading practitioners, academy scholars, and students together. Scheduled topics for this conference include the following:
° The General Counsels' Forum—including general counsels from all four major leagues ° The Executive Directors' Forum—including the heads of each leagues players association. ° Media, Publicity, Fantasy Sports & Privacy Rights for Athletes ° Legal Impact of Agent Interference in Intercollegiate Athletics ° The Current State & Legality of the College BCS System ° Ethics for Sports Lawyers ° Latest Developments in Professional Sports Collective Bargaining ° Structuring & Negotiating Complex Transactions in Professional Sports ° Legal Ramifications of Head Trauma in Sports ° Arbitration & Mediation Update in Professional Sports
For more details on this tremendous event you can access the conference brochure here. If you can't attend this week but want to learn more about this association, the SLA website can be found here. Posted By : Warren K. Zola
Roger Clemens at SCOTUS
Message posted on : 2011-05-17 - 18:53:00
Roger Clemens is still hanging around the Supreme Court. Clemens sought cert from the Fifth Circuit decision holding that Texas courts lacked personal jurisdiction over Brian McNamee in Clemens' defamation actions arising from McNamee's various statements to the Mitchell Commission and the media about Clemens' alleged steroid and HGH use. The case was listed for consideration at last Friday's conference, but the Court took no action. Speculation is that the Court is waiting to act on the petition until it decides two pending personal-jurisdiction cases.
I used the Fifth Circuit decision in my Civ Pro class; it is a pretty effective teaching case, if only for the somewhat stunted view that the majority took. Posted By : Howard Wasserman
New Sports Illustrated Column: Burning Questions from Eighth Circuit's Ruling Tonight in Favor of NFL
Message posted on : 2011-05-16 - 23:52:00
A three-judge panel on the U.S. Court of Appeals for the Eighth Circuit has extended its stay of Judge Susan Nelson's order to enjoin the NFL lockout. The stay will continue into June, when the panel will decide the matter on the merits. I have a new column for SI on the ruling and what it means. Here's an excerpt:
7. Will the players stay unified during the lockout? If the players lose before the Eighth Circuit next month, the unified players' front may splinter into factions. Here's why:
The major advantage for players to decertify was that it empowered them to bring a very threatening antitrust case against the league. Decertification meant that the NFLPA no longer represented NFL players in negotiations with the NFL over employment conditions. As a result, the federal labor exemption, which immunizes collectively bargained rules from antitrust scrutiny, was taken off the table, thus exposing core parts of NFL football -- the draft, the salary cap, restricted free agency, etc. -- to antitrust review. The NFL is very vulnerable to losing an antitrust case, and a loss would command that the owners pay treble damages, likely in the billions of dollars.
The decertification strategy seemed successful on April 25, when Judge Nelson issued a preliminary injunction against the NFL lockout. The injunction meant the lockout was lifted, the league had to figure out new employment rules which would prove compatible with federal antitrust law and players were positioned to eventually win their antitrust litigation. The players, in other words, had all the leverage.
Everything changed April 29, when the Eighth Circuit granted the temporary stay of the preliminary injunction. If the Eighth Circuit rules in favor of the league next month, and assuming neither the Eighth Circuit grants an en banc rehearing nor the Supreme Court favorably intervenes on behalf of players, the antitrust litigation path would essentially be punted to 2012 or beyond, when a trial on Brady v. NFL might happen. By that time, some current players will be too old to play; others might fail to stay in top condition and not be able to get it back.
Such a situation could cause the players to rethink the decertification strategy and possibly contemplate recertification.
One leading reason to remain decertified is that recertification would support the NFL's argument that decertification was a sham. The NFL has filed an unfair labor practices charge with the NLRB on such a ground; the NLRB will likely decide on the charge by early next year. If NFL players recertify soon after their antitrust strategy failed, it would imply that decertification was only pursued to bring an antitrust case. That would play right into the owners' wheelhouse for the NLRB charge.
But there are downsides to remaining decertified. Foremost, players have abandoned the collective bargaining framework and are essentially acting on their own or, if they so choose, as factions of players. There is already discussion of players abandoning the NFLPA/Brady litigation and pursuing their own strategies, with their own attorneys and advisors. Expect that discussion to only amplify should the Eighth Circuit rule against the players in June. The NFLPA cannot prevent any players from negotiating with teams or the league; recertification would be required to do so. The NFL could take advantage of that situation by
reaching a deal with one group of players and those players then convincing others to recertify, but perhaps with different NFLPA leadership in place.
This situation is unique and could place the NFLPA in a difficult position. Normally when there are splinter groups of employees, the employer takes a major risk by speaking with them, because Section 9(a) of the National Labor Relations Act commands that the employer speak to the duly-elected union representatives. Here, however, the NFLPA maintains that it has disclaimed interest in representing NFL players. In fact, if the NFLPA now tries to deny a splinter group a seat at the table, the NFL could argue this supports its position that the NFLPA's disclaimer was a sham.
Then again, the NFL may be wary of meeting with the splinter group. If the league does so, it could signal that the NFL acknowledges that the NFLPA has disclaimed interest in representing NFL players. Such a signal would undercut the league's argument to the NLRB that the decertification was a sham and that the NFLPA only decertified for purposes of bringing an antitrust case.
In short, if the players lose before the Eighth Circuit next month, the players and the league will have to think long and hard, not only about what to offer in a negotiation, but with whom to negotiate.
Brian Porto and I are excited to announce the creation of the Sports Law Institute at Vermont Law School. It's an exciting venture that will focus on the intersection between sports, law and business and on getting students jobs and internships in the industry.
The Institute's website can be seen at this link. Here is the news release:
VLS's New Sports Law Institute Gives Students Opportunities in Sports, Law and Business
SOUTH ROYALTON, VT -- Vermont Law School has established a Sports Law Institute (SLI) to prepare students for the growing opportunities at the intersection of sports, law and business.
The SLI's launching further broadens the curriculum and experiential learning opportunities at VLS, whose environmental law, international law, dispute resolution and other public-service oriented programs are nationally recognized for excellence.
The SLI serves as an educational, research and professional vehicle for exploring connections between law and sports. The institute engages in original research, promotes experiential learning and employment opportunities for VLS students and alumni and connects the VLS community with academic and professional sports law activities. The SLI also provides cutting-edge commentary on some of the biggest controversies in sports law.
"Sports law has an emerging role in legal education and will continue to gain importance," McCann said. "It encompasses a wide range of legal topics, including antitrust law, labor law, intellectual property/licensing,
contracts, commercial law, business law, immigration law, property, torts and criminal law. That breadth makes sports law an excellent device for studying the law. Sports law is also a valuable learning tool because it presents complex legal issues in fact-patterns that students generally find approachable and understandable. Our focus ranges from the ski and snowboard slopes in Vermont to the parks, courts, rinks and fields found in the big leagues and minor leagues all over the country."
CONTACT: John Cramer, Associate Director of Media Relations Office: 802.831.1106, cell: 540.798.7099, jcramer@vermontlaw.edu Posted By : Michael McCann
Slotting for MLB Draft?
Message posted on : 2011-05-14 - 13:58:00
Good piece by Jeff Passan on slotting for the MLB draft being a divisive issue for a new MLB CBA. We've discussed slotting for the MLB draft a number of times on the blog. Posted By : Michael McCann
First Amendment and the Bird
Message posted on : 2011-05-12 - 11:37:00
Yesterday, battery charges were dropped against a Kansas City Chiefs fan who in 2009 flipped off the surrounding fans at San Diego's Qualcomm Stadium then got into a scuffle with security who intervened. The trial court ruled that the fan, Jason Ensign, was exercising his free speech rights in flipping the bird, thus giving him the right to defend himself against the security guards who tackled him.
Deadspin is having some fun with this, but this seems like precisely the right result. Note, however, that it does not necessarily speak to the full question of fan speech at stadiums, but only of whether a fan can be arrested and charged criminally for speech at a stadium. It is not clear the result if, for example, security simply had removed Ensign from the stadium. And it does not speak to the continued validity of the league's fan-conduct policies (although I long have argued that most are constitutionally suspect). Posted By : Howard Wasserman
Bartolo Colon's Stem Cell Surgery: Sports Medicine or Cheating?
Message posted on : 2011-05-12 - 09:23:00
37-year-old Bartolo Colon has been an excellent surprise this season for the Yankees. Signed to a minor league contract in the off-season, Colon, who struggled in recent seasons with inconsistency and injuries, is 2-1 with a 3.86 ERA. His strikeouts per 9 innings are up considerably from the previous few seasons - he's striking out a batter per inning, something he hasn't done in years. Why are his Ks up? One reason is that he's throwing the ball 95 miles per hour again. And why is that? Here's one strong explanation:
* * *
Major League Baseball is examining a procedure performed on Yankees right-hander Bartolo Colon last year that involved stem cells being injected into his painful shoulder and elbow, according to The New York Times.
Joseph R. Purita, an orthopedic surgeon in Boca Raton, Fla., told the newspaper he flew to Colon's native Dominican Republic and helped a team of doctors there with the treatment on the 2005 AL Cy Young Award winner. He said he has used Human Growth Hormone in the procedure before, but not in this case with Colon.
HGH is banned by Major League Baseball.
* * *
Purita told the Times he took fat and bone marrow stem cells from Colon and injected them back into his elbow and shoulder.
"This is the future of sports medicine, in particular," he said. "Here it is that I got a guy back playing baseball and throwing pitches at 95 miles an hour."
* * *
Let's assume that Colon did not receive HGH. Is the stem cell surgery itself a source of concern?
There is no question that stem cell surgery has done wonders for a lot of people with serious injuries or disabilities and holds great promise for medicine. And like the innovation of Tommy John Surgery 35 years ago, stem cell surgery might allow pitchers and eventually batters to continue careers that would otherwise be shut down due to injuries, wear and tear or old age. Maybe we'll see more guys playing at a high level into their late 30s and even 40s. More Julio Francos wouldn't be a bad thing. Fans would get to see their favorite players play longer. And players, knowing that they could have 15 to 20 year careers, would likely take longer-term perspectives in how they view issues in collective bargaining.
Of course, steroids can also do wonders for people with various ailments. The same is true of HGH, which helps people recover faster from injuries. Steroids/HGH can also prolong big league careers that would have otherwise ended. But that hasn't stopped Baseball from viewing them as means of cheating.
Does the authoritative moniker "surgery" for stem cell surgery make it more acceptable than injecting someone with a steroid? Or are we okay with stem cell surgery because it takes cells from one part of the body and merely relocates them to another part (as opposed to a steroid which uses as an external substance to change the body chemistry)? Are the lines between medicine and cheating really clear?
Mitchell Berman (Texas) has written the piece I wish I could have: Replay (forthcoming in California Law Review). I read an early draft of the paper and it does a terrific job of applying legal theory to the seemingly trivial issue of replay in football and the standard of review, as well as drawing lessons from replay to apply to the legal system.
Here is the abstract:
This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer's FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.
A lengthy investigation into the optimal standard of review for instant replay in sports might seem frivolous. But it serves a deeper ambition. We are in the early years of sports' colonization by econometricians, as legal theorists remain watching from the sidelines. That is unfortunate. Formal organized sports are, in effect, legal systems, and legal theorists might find much both to teach and to learn by paying closer attention to competitive athletics. In short, legal theorists would benefit from a sustained engagement with what I have termed, in previous work, "the jurisprudence of sport" As a case study in this nascent field, this essay reveals that the problem of appellate review in sports is surprisingly rich and complex. But it shows more than that. The jurisprudence of sport maintains that sporting practices and norms can teach lessons for ordinary legal systems as surely as the other way around. Illustrating that claim, this essay draws from football replay practices an argument to reform the criminal trial system to accommodate two verdicts of acquittal, not one.
* Possible misstep by Major League Baseball in its taking over of the Dodgers from Frank and Jamie McCourt (the two are embroiled in a nasty divorce): According to attorneys for Frank McCourt, one of the persons assigned to run the Dodgers did not disclose that he used to work for Jamie McCourt until after reviewing confidential financial information about the team. If that's true, expect this to emerge as a key issue should MLB try to sell the Dodgers without Frank McCourt's approval.
* The federal government, apparently not deterred by the disappointing result in the Barry Bonds trial (a conviction on just one count - obstruction of justice - which was the least important count), is stepping up its investigation of Lance Armstrong and his possible use and sale of illegal performance-enhancers. As I explained in an SI column, Armstrong, if charged, could face a wide range of charges, including fraud and racketeering. His case, in other words, would be structured differently than those against Bonds and Roger Clemens, both of whom have faced prosecutions for knowingly lying under oath.
* Brian Baxter of American Lawyer has a great sports law column called The Score. Check it out - tons of great info and insight.
* Sports attorney Jim Juliano has a good sports law newsletter called Legally Speaking.
* Mostly not sports law, but if you're a member or prospective member of the Massachusetts Bar, I strongly recommend reading Mass Lawyers Weekly, The Docket blog. Really good stuff there. Posted By : Michael McCann
An Antitrust Economist's Take on the Potential BCS Litigation
Kansas State University reaches settlement with former football coach Ron Prince
Message posted on : 2011-05-09 - 23:57:00
It made for an interesting fact-pattern: 1) the athletic director signs the coach to a lucrative contract (or "memorandum of understanding") that contains a $3.2 million buyout; 2) the athletic director quits; and 3) the school fires the coach and says it won't pay him the buyout because, in its view, the athletic director did not have the authority to sign the coach (even though the relevant by-laws suggested he did).
Now the dispute has settled in a way that clearly favors the coach. Here's more:
* * *
Neil Cornrich, Prince's agent, said in a statement that Prince was “appreciative of KSU's willingness to structure the settlement in such a favorable manner.”
Cornrich contends the settlement is a “significant financial advantage” for Prince compared to the $3.2 million buyout. Those payments were not scheduled to start for almost five years and would not be fully paid until Dec. 31, 2020.
“Discounted to present value, the $1.65 million settlement figure essentially represents an agreement to pay Coach Prince almost the entire $3.2 million termination payment,” Cornrich said. “Coach Prince will receive these funds upfront and almost nine years earlier than they were originally due.”
* * *
“I think it's a favorable outcome for Prince,” said Michael McCann, a Vermont law professor who also works as a legal analyst for Sports Illustrated. “For the school, there is a benefit to having closure to litigation. I don't know what the value of that is, because it's hard to quantify, but this lawsuit has attracted a lot of publicity that the school doesn't want.
“It will provide closure, whereas if it goes through litigation, regardless of who wins and loses, you still have the possibility of appeals and public statements. You can certainly see why the school wants to settle it and have some closure even if it means paying Prince a substantial amount of money.”
McCann said the arguments made during a hearing for summary judgment last fall in Riley County District Court appeared to give Prince the advantage.
“It seemed that the athletic director either had authority (to negotiate a coaching contract) or one could presume he had authority, and in either case Prince would likely win,” McCann said.
“I think Prince had the stronger legal argument heading into the case, but there is still a benefit to Prince for settling. It ends all risk of losing.”
New Sports Illustrated on whether Bud Selig can punish players for alcohol & DUI related issues
Message posted on : 2011-05-06 - 19:11:00
I speak with Maggie Gray of Sports Illustrated Video to discuss whether Baseball Commissioner Bud Selig can sanction players for alcohol/DUI related offenses.
To summarize and elaborate on my video remarks:
1) GENERAL COMPARISON WITH STEROIDS Driving under the influence, as a form of human conduct, is much worse than using, buying or even selling illegal steroids or other illegal performance-enhancers. If you drive drunk, you directly can kill or maim others, along with directly cause substantial property damage; if you use steroids, in the vast majority of cases you can only directly hurt yourself (if in fact steroids are really harmful, a point that has drawn debate).
Now, some have written about "roid rage" and people on steroids acting violently, and families/employers of those who commit DUI or use steroids are indirectly impacted by the abusers' conduct.
But I think it's pretty clear that driving under the influence is way worse than using steroids.
2) BASEBALL COMPARISON WITH STEROIDS But when viewed purely from the lens of baseball, are steroids worse than DUI? Steroids are about cheating, DUIs are about off-field conduct. There's some merit to that. But that logic hasn't stopped the NFL, armed with its Personal Conduct Policy, from strictly regulating off-field conduct on grounds that certain misbehavior harms the league image.
3) DO NUMBERS ACTUALLY INDICATE A PROBLEM? While 6 players committing DUIs in the first five weeks of the season is alarming in some media-noteworthy way, keep in mind that a) the 6 DUIs are not connected to each other and occurred in different circumstances; and b) at any given time, there are 750 players on the 30 MLB rosters - 6 out 750 is less than 1%. Is there really an epidemic of MLB players committing DUIs? Could the level of misconduct be the same as previous years, but only this time a few more players than normal were caught for an offense that culprits often get away with?
4) THEORY AND BEST INTERESTS OF THE GAME CLAUSE In theory, Bud Selig invoke his Best Interests of the Game authority to sanction players for the DUIs. The DUIs have clearly embarrassed the game and the collectively-bargained Joint Drug Prevention and Treatment does not mention alcohol, an omission which he could interpret to mean he is not limited by the Policy.
5) REALITY AND COLLECTIVE BARGAINING In reality there are at least 3 reasons why Selig will wait on sanctioning until there is collectively bargained language:
i) The Players Association would greatly resent him acting unilaterally and that could cause labor negotiation problems for Selig and the owners in their discussions with the PA on a new CBA (the current one will expire on December 11, 2011), or at least in terms of developing an alcohol/DUI policy.
ii) The Players Association could file a grievance with an independent arbitrator (under the terms of the CBA), arguing that Selig has overstepped his authority and that alcohol and related arrests need to be mentioned in the Policy.
iii) Selig has to be careful not to violate the Americans with Disabilities Act, which regards alcoholism as
an impairment and, in certain situations, can empower an employee for seeking redress when an employer punishes him/her for matters related to alcoholism. See our discussion on Roy Tarpley for more. Posted By : Michael McCann
Catching up with Links
Message posted on : 2011-05-06 - 13:30:00
* Dan Fitzgerald of Connecticut Sports Law has an excellent piece on the difficult choice undrafted free agents have in choosing between certain opportunities in the United Football League and potential/lockout-uncertain ones in the National Football League.
* Over on The Blackbook Legal Blog, Goutman Jois has some terrific commentaries on the NFL lockout (see here and here for example)
* I speak with the Associated Press about an ethics investigation into the potential conflict of interest of members of an NCAA panel who are looking into the Fiesta Bowl also attending a Fiesta Bowl-sponsored retreat. Posted By : Michael McCann
NCAA Rule Change Ignores Players' Best Interests
Message posted on : 2011-05-05 - 17:00:00
A few weeks ago I wrote an article taking the NCAA to task for failure to provide an adequate amount of time for underclassmen in men's basketball to “test the waters” before having to remove their name from the NBA draft if they wished to retain their college eligibility. It is obvious that the constraints this rule provides on the amount of time individuals have in making this decision are intended to benefit colleges yet do not reflect a modicum of interest in what's right for the student-athlete.
Just recently the NCAA, in their infinite wisdom behind the lobby of the ACC basketball coaches, made a rule change for 2012 further restricting the date by which student-athletes must renounce their NBA aspirations if they intend to return to school from May 8th (currently) to April 10th (new rules)—not surprisingly the day before the NCAA's spring basketball signing period.
The rationale for this policy change, as described by the coaches who sponsored this rule, was to make sure that student-athletes could focus on academics during the spring while also giving coaches a better idea of their roster for the coming season before the recruiting period closes. While I would always applaud a commitment to academics, coaches and the NCAA don't seem to have any concern about missing class time for conference and NCAA Tournament games as schools take teams on the road for much of the month of March.
What I glean from this rule change is that making a bad career decision is fine, just do it quickly so that a school knows whether or not they need to recruit your replacement.
Anyways, for a wonderful opinion piece on this topic, read the article that fellow advocate for student-athletes Marc Isenberg has posted on his Money Player blog here. Posted By : Warren K. Zola
First, the Honolulu Star-Advertiser reported on Tuesday that the State of Hawaii is considering whether to join the forthcoming antitrust suit that Utah Attorney General Mark Shurtleff intends to file against the BCS. Hawaii AG David Louie reportedly discussed the issue at length with Shurtleff during a recent meeting of state attorneys general, and his office is working on an agreement with Utah to share related materials. Hawaii would be a logical state to join in such a suit, given that its flagship university is in a non-BCS conference, and received a disproportionately small share of revenue for its 2008 Sugar Bowl appearance.
Second, Christine Varney, an Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, sent a letter on Tuesday to NCAA President Mark Emmert, inquiring as to the NCAA's position on the BCS. Varney's letter began by stating that "serious questions continue to arise suggesting that the current [BCS] system may not be conducted consistent with the competition principles expressed in federal antitrust laws." The letter then went on to ask the NCAA to explain why it does not offer a playoff for the Football Bowl Subdivision, and whether the NCAA believes the BCS currently serves the best interests of "fans, colleges, universities, and players." The letter closes by stating that the NCAA's views on these issues will help the Justice Department determine how to proceed with respect to the BCS, a clear signal that the federal government continues to investigate the legality of the system.
It will be interesting to see how the NCAA responds to the Justice Department's letter. The six BCS conferences possess an inordinate amount of power within the NCAA, and will presumably pressure the organization to remain agnostic regarding a playoff in its response. However, the NCAA membership at large would stand to benefit significantly if a playoff were implemented in the Football Bowl Subdivision, given that the NCAA would undoubtedly retain a share of the revenues it generates (as it does for the NCAA Division I men's basketball tournament). In the unlikely event the NCAA came out in favor of a playoff, pinning the blame for the lack of a playoff on the obstinate leadership of the six power conferences, it could inflict a significant blow to the BCS's chances of surviving this latest round of political pressure.
Finally, CNN is reporting that Utah Senator Orrin Hatch "demanded" the Justice Department further consider a potential lawsuit against the BCS during Attorney General Eric Holder's appearance before the Senate Judiciary Committee on Wednesday. AG Holder reported stated that he did "not disagree" with Senator Hatch's characterization of the BCS as a "mess" that provides distinct advantages to certain "privileged conferences."
All in all, one has to wonder how much longer the BCS leadership will continue to defend the system in the face of increasing political pressure, especially given the fact that the six BCS conferences would stand to earn hundreds of millions of dollars more per year under a playoff system.
Update #2: The PlayoffPac blog discusses the relevance of the NCAA's views on the playoff matter, noting that NCAA bylaws prohibit any outside entity from establishing its own championship tournament. Posted By : Nathaniel Grow
A Primer on Referee/Umpire/Sports Official Bias
Message posted on : 2011-05-04 - 08:00:00
The issue of possible bias among referees, umpires, and sports officials is timely. Late last month, ESPN Dallas/Fort Worth ran a story highlighting how the Dallas Mavericks have fared in the playoffs when NBA referee Danny Crawford was part of a three-person crew. While the numbers set forth in the ESPN article were eye-catching, they were far from conclusive. In a 2009 article (here or here), I analyzed every Dallas Mavericks game during a seven year period, not merely the team's playoff games. I did not find any NBA referee to exhibit bias against the Mavericks when considering all games.
In the second of a trilogy of micro-level NBA referee bias-related journal articles, I investigated allegations made by former Miami Heat coach Pat Riley against two NBA referees (and found no bias on the part of the referees). The resulting paper was published yesterday in the Journal of Quantitative Analysis of Sports. Below is an excerpt that highlights some of the research being done on the issue:
"The presence of bias among referees, umpires, and judges in sports has been part of a growing body of research. Among basketball referees, the analysis of bias has been conducted on the basis of omissions (Moskowitz and Wertheim, 2011), race (Price and Wolfers, 2010), profit-maximizing motives (Price, et al., 2010), point spreads and home court advantage (Shmanske, 2008), aggressive play (Anderson and Pierce, 2009), spectator influence (Lehman and Reifman, 1987), and personal animosity (Winston, 2009; Rodenberg and Lim, 2009). Outside of basketball, Parsons et al. (2011) found evidence of racial bias by baseball umpires, Brimberg and Hurley (2009) pinpointed a home bias among ice hockey referees, Emerson, et al. (2009) focused on judging bias in Olympic diving, and Morgan and Rotthoff (2010) unearthed some evidence of sequential order bias among gymnastics judges. In soccer, referee decision making has been investigated as a function of crowd noise (Nevill, et al., 2002) and social pressure (Garcicano, et al., 2005; Dohmen, 2008). Evidence of referee bias on the basis of nationalism has been investigated in rugby (Page and Page, 2010) and figure skating (Zitzewitz, 2006; Fenwick and Chatterjee, 1981)."
NOTE - If there are any like-minded researchers looking to collaborate, please drop me an email or touch base at the upcoming Sports Lawyers Association conference in Washington, DC. I have found this quasi-legal research line to be fascinating and, in turn, fertile for extensions. Posted By : Ryan M. Rodenberg
Frank McCourt sued by former law firm for unpaid bills
Message posted on : 2011-05-03 - 18:00:00
I recently examined Major League Baseball's decision to take over the Dodgers from Frank McCourt, who has encountered a number of problems. David Frank of Massachusetts Lawyers Weekly now looks at Bingham McCutchen, a Boston law firm that used to represent McCourt, suing McCourt to collect hundreds of thousands of dollars in unpaid legal fees. Bingham McCutchen wants a Massachusetts state court to declare that the firm met its standard of care in representing McCourt. Bill Shaikin of the Los Angeles Times has additional coverage. Posted By : Michael McCann
Men's sports and Title IX
Message posted on : 2011-05-03 - 12:00:00
Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get put in a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).
But it is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory.
I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it. Posted By : Howard Wasserman
Miami Book Presentation
Message posted on : 2011-05-02 - 14:17:00
Forgive me a bit of shameless self-promotion:
This Tuesday, May 3, at 8 p.m., I will be doing a talk on my book, Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, at Books & Books, the wonderful independent bookstore in Coral Gables. This is part of the book series sponsored by FIU's School of International and Public Affairs. Recent events--namely the district court'sdecisions allowing some of the players' civil claims to go forward against Duke and the City of Durham and the indictment of Crystal Mangum for murder in her boyfriend's stabbing death--have suddenly put this case back in the news.
If you are in Miami Tuesday, I hope you can stop by. Posted By : Howard Wasserman
When Somebody's “0” Does Go
Message posted on : 2011-05-01 - 20:00:00
In one of the most sensational months of professional boxing in recent history, the undefeated records of two of boxing's hottest young contenders, middleweights James (Stone Cold) Kirkland and David LeMieux, and those of two of its mostly highly regarded young champions, Andre Berto and Juan Manuel (Juanma) Lopez, all came to an end in dramatic fashion.
While it is widely perceived that a boxer's “0” makes them that much more marketable, the way in which the first loss is suffered and the implications of same are ultimately what makes the difference in the eyes of a boxer's promoter or manager and the boxing public.
What kind of protections do boxing's promoters and managers create for themselves in the event that the first loss makes them lose faith in their previously undefeated charges or alters their plans for them?
A quick look at the most standard types of contractual provisions to address a boxer's first loss, and all other losses, follows.
The Right to Terminate Following a Loss or Draw
Is it not uncommon to see language in a boxing promotional or management agreement that empowers a manager or promoter to terminate the agreement, at his sole discretion, in the event that the boxer “shall fail to have been declared the winner” of one or two matches during the term of the agreement. As it sounds, this provision means that if a boxer is either the recipient of a loss or a draw, he may soon be a free agent if his manager or promoter so decide. While a boxer may view this provision as a right for manager or promoter to kick him when he is down, think of it from a manager or promoter's point of view; do they want to continue to be contractually and financially obligated to someone that might reveal themselves as a dog in a given loss. With the possible exception of Kirkland, who was steamrolled in one round by the underrated Nobuhiro Ishida, it would not appear that any of this month's losers truly showed themselves to be unworthy of a continued relationship with their promoter or manager. Each of them lost after spirited efforts, and each of them is either a big enough draw or a proven enough entity to jump right back into the mix. LeMieux may need some rehabilitation and confidence building fights, as he is young and was previously unproven at the top level of the sport, but he is a draw in his native Quebec and an explosive, TV-friendly puncher. Berto and Lopez were both top level young champions who had proven themselves and
their worth on several occasions prior to their respective losses, and during their losing efforts themselves, and could jump right back into important bouts. Even Kirkland was a popular, TV-friendly attraction who had blown through the middle and upper-middle echelon of the middleweight division in an explosive, Tyson-esque manner before being chinned by Ishida. Therefore, provided that the aforementioned boxers' teams all had termination provisions that could be activated by a boxer failing “to have been declared the winner” in their agreements, they all have to think long and hard before releasing such talent.
The Right to Re-Negotiate Terms Following a Loss or Draw
A promoter or manager who aware that he either may be taking on damaged, but marketable, goods at the start of a given agreement, or is simply cognizant of the fact that no one is unbeatable but believes every boxer deserves the chance to redeem themselves, may reserve the right to renegotiate certain terms of their agreements, such as the minimum number of guaranteed bouts, the amount of a monthly stipend, or the minimum purses, in the event that a boxer “failed to have been declared the winner” of a bout or two during the term. While such a provision may result in the boxer having less activity or less income generated under a given management or promotional agreement going forward, it also means that they are not left out in the cold as a free agent after a loss or draw and will be given the opportunity to come back from their setback without a drastic change in the make-up of their team. In sum, a renegotiation could be far better than nothing for a boxer who may otherwise have nowhere else to turn following the loss of his “0.”
The Right to Toll the Term of the Agreement
Perhaps a boxer is unable to fight for several months due to a medical suspension or decides he needs some time to re-evaluate his career and thus takes a year or two off following a loss or a draw. Indeed, Kirkland, Lopez, and LeMieux were all likely placed on medical suspensions since they lost by knockout. One or all of them may wish to take some time off to reevaluate their careers and take inventory. A tolling provision in a promotional or management agreement would cover such scenarios and allow a boxer's team to continue to benefit from its agreements with him in times of uncertainty. As previously detailed in “Toll Road Back to Ghost Town?,” a typical tolling provision allows a promoter or manager to extend the term of their agreement with a boxer in the event of a postponement of a given fight, or in the event that the boxer becomes injured, suspended, or permanently/ partially disabled. This provision is placed in an agreement to help ensure that the promoter or manager has every opportunity to get a return on his investment in a boxer no matter what happens during the term of their relationship. It can have advantages for the boxer too, as it makes certain that he has a promoter and/or manager to continue his career with following injuries, personal troubles, suspensions, and other events that keep him out of the ring for appreciable lengths of time.
Sore Losers andthe Morals Clause
What if, for example, Kirkland decided to go on an anti-Japanese diatribe, including derogatory remarks about the Japanese tsunami victims, following his loss to Ishida rather than just complaint about the stoppage? Or, per actual events, what if the promoter or manager of super middleweight contender Khoren Gevor decide that his attack of referee Manfred Kuechler following his tenth round disqualification loss to Robert Stieglitz on April 9, 2011 makes him more difficult to promote and was generally bad for business? Well, if there was a morals clause in any of Kirkland's or Gevor's agreements, the aforementioned antics following their losses could provide another reason for a promoter or manager to unload them. As previously detailed in “Throwing Stones When Living with a Glass Jaw?,” a typical morals clause allows one or both parties to a given agreement the option of terminating the agreement in the event that the other party does something to either bring ill-repute to himself or otherwise does something to sully the other party's name or image. Anti-Japanese slurs and assaults on referees theoretically qualify as occurrences that would bring ill-repute to someone or sully a party's name or image. A word to boxers who are virulently disappointed following a loss and cannot think of anything appropriate to either say or do: do your best to keep it to yourself until the press is outside of an earshot. There is no need to put your contractual relationships at risk because of inappropriate words or actions in the ring following a loss.
A smart manager would do his part to both negotiate these protections into his own agreement with a boxer and lessen the impact of any such protections when negotiating a boxer's promotional agreement. Likewise, a smart promoter would be smart to make the aforementioned protections as strong as he feels a particular situation warrants so that he is not compelled to carry any boxer perceived as dead weight following a bad loss or draw. With these protections available for both their management and promotional agreements, the boxers themselves are best served to simply do their part to show up for each of their bouts in the best mental and physical condition that they can be and give the best effort that can be expected of them. Otherwise, when the 0, 1, or 2 goes, they will increasingly be at the mercy of the whims of those in charge of handling their professional careers.
This article can also be found on http://www.8countnews.com. Since this article was originally written, another hot undefeated prospect, 2008 U.S. Olympic alternate Roberto Marroquin, lost his "0" in a split decision loss to tough Mexican journeyman Francisco Leal. Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court.
Posted By : Paul Stuart Haberman
New Sports Illustrated Column: Eighth Circuit grants temporary stay -- NFL Lockout is Back On
Message posted on : 2011-04-29 - 21:37:00
Here's my new SI column on tonight's big news from the Eighth Circuit: Judge Nelson's preliminary injunction order has been temporarily stayed and the tea leaves suggest the order will be made permanent. Posted By : Michael McCann
Tomorrow in Boston: A Discussion on NFL Labor Negotiations
Message posted on : 2011-04-28 - 22:43:00
My Vermont Law School colleague and good friend
Professor Sean Nolon,
who is Director of the Dispute Resolution Center at our school, and I will give a joint presentation the NFL labor crisis tomorrow at the Boston office of Bulkley, Richardson and Gelinas. While the event is primarily geared for Vermont Law School alumns, please
contact me
if you would like to attend as I can secure you an invitation.
You are cordially invited to a
Boston Vermont Law School Alumni Association
Brown Bag Lunch NFL Labor Negotiations
with guest speakers
VLS Professors Sean Nolon and Michael McCann< Friday, April 29, 2011
12:00pm
at Bulkley, Richardson and Gelinas, LLP
125 High Street
Oliver Street Tower, 16th Floor
Boston, MA
RSVP to
Kim Evans at alumni@vermontlaw.edu
or 802-831-1347
Please remember to RSVP so that we can add your name to the list for security clearance at Bulkley, Richardson and Gelinas.
Posted By : Michael McCann
Reminder: SLA and Sullivan and Worcester Panel tonight
Message posted on : 2011-04-28 - 12:38:00
If you're in the Boston and are looking for a timely sports law discussion - it should be fun and I strongly suspect the NFL legal chaos will work itself into the discussion:
The Sports Lawyers Association and Sullivan & Worcester LLP present
Boom Goes The Dynamite! Top Sports Transactions of 2010
Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 MAP
The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC. Speakers:
First, NFL teams should re-open business without any physical or other obstructions to players. A court has told the league to resume operations. It should do just that and not pull any gimmicks. It may be an awkward time for teams and players, but only if they let it be.
Second, the NFL should -- for the time being -- not employ a salary cap, meaning teams should be able to sign free agents without restriction. Teams would still be deterred in their spending because a new CBA will eventually be reached and it will contain a salary cap -- no team wants to be way over the cap when the new CBA is put in place.
Third, teams should remove franchise tag designations and other restrictions on players' free agency rights. History should convince the league of this point: the NFL has lost antitrust cases involving unilaterally imposed restrictions on movement of free agents between teams. Judge Nelson notably stipulated that teams are not obligated to sign free agents. In one respect, that stipulation benefits teams since they cannot be alleged to have engaged in a group boycott under federal antitrust law by not signing free agents. But as a matter of practice, the stipulation may not prove meaningful: teams may not be legally obligated to sign free agents, but if they don't, their competitors will. . . .
Boston Marathon concedes its course is ineligible for world, American records
Message posted on : 2011-04-27 - 19:30:00
The organizers of the Boston Marathon decided today not to contest IAAF rules that make the course ineligible for a world record. (The Boston route ends 459 feet of elevation below the start, and it is a point-to-point course that is susceptible to a tailwind such as the one last Monday that helped Geoffrey Mutai finish in 2 hours, 3 minutes, 2 seconds _ 57 seconds faster than Haile Gebrselassie's world record.) B.A.A. officials had said they would file the paperwork to have the record certified, even though the IAAF language is clear and Boston has long been known to be ineligible. Today the B.A.A. decided not to force a confrontation over the issue. Instead, it said it would "engage members of Boston's scientific and medical communities" to see if they can't come up with new rules that would better recognize the challenges of the course, notwithstanding its net downhill layout. Posted By : Jimmy Golen
SBJ Sports Law Article
Message posted on : 2011-04-27 - 14:00:00
The April 25, 2011 issue of Sports Business Journalincludes an insightful article by Bill King about several lawyers who work where the law and the sports industry overlap. Lawyers at Proskauer, Weil Gotshal & Manges, O'Melveny & Myers, and other law firms are profiled. The article appears to be gated online, but is worth a read if you can get access to a hard copy or if you have a subscription to the web-based companion publication. Posted By : Ryan M. Rodenberg
Josh Luchs to speak at New York Law School tomorrow
Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!
Here's the info: Thursday, April 28, 2011 1:00 p.m. – 2:00 p.m. Room WA10
About our speaker:
Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents. Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.
Notable former clients of Josh Luchs include:
Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).
Please RSVP to nylawsports@gmail.com.
Posted By : Michael McCann
New Sports Illustrated Column: How does NFL Ruling Impact the NBA and NBA Players?
Message posted on : 2011-04-26 - 19:17:00
In a new SI column, I write the potential impact of Judge Nelson's order in favor of NFL players on the NBA and NBA players, two groups which are headed for a similar labor crisis this summer and possibly into next season.
Here's an excerpt:
• NBA players may be less able to show irreparable harm caused by a lockout.
Another factor in a trial judge's decision to grant a preliminary injunction is whether the plaintiffs -- be they NFL players or NBA players -- would suffer irreparable harm if the injunction is denied. Irreparable harm refers to a harm that cannot be adequately remedied by money damages.
Nelson, in relying on numerous affidavits, including from such prominent player agents as Neil Cornich and Tom Condon, determined that NFL players would suffer irreparable harm if they missed the 2011 season. During that time, players would age, and given that NFL players are usually in their 20s or early 30s and usually only play a few seasons, missing just one year of football might be akin to the typical person, who normally works decades in his/her lifetime, missing many years of work. Players would also lose out on conditioning and training opportunities. And as Nelson ruled, free agents are hurt even before a missed 2011 season since they cannot sign with teams during a locked out off season. She also found that 2011 rookies would be particularly hurt by a lockout since they would return in 2012 after missing a year of football -- in both the pros and college -- and then be expected to compete with 2012 rookies, who would be fresh off playing in college.
Most of Nelson's logic holds true for NBA players, as well. In fact, to advance her reasoning on irreparable harm, she cited Spencer Haywood's successful antitrust suit against the NBA in 1971. Haywood, one of the best players in the rival American Basketball Association and then a signee of the Seattle SuperSonics, was barred from entering the NBA until four years after his high-school graduation. The NBA's restriction had not been collectively bargained and was thus subject to antitrust law. A court found that he would suffer irreparable harm by missing four years of playing in the NBA.
The presence of alternative employment opportunities in pro basketball, however, could sway a different judge, particularly one who is more inclined than Nelson to favor the league's views. Indeed, if the NBA instituted a lockout, some players would likely seek and obtain comparable employment in Europe and elsewhere. While those leagues impose restrictions on the number of U.S. players allowed on rosters, the restrictions could be changed in the event of the supply of available NBA players suddenly surges on July 1. The NBA would argue that irreparable harm should not be found if players can pursue comparable opportunities elsewhere.
In response, however, NBA players would likely cite the Haywood case: even though Haywood could play professionally in the ABA, a court nonetheless found that he suffered irreparable harm by not being able to play in the NBA. NBA players would probably also charge that playing and living abroad should not constitute an equivalent employment opportunity to playing in the NBA and living in one's home country.
New Sports Illustrated Column: NFL Players Secure Big Victory before Judge Nelson
Message posted on : 2011-04-25 - 23:01:00
Judge Nelson granted the players the injunctive relief they were seeking -- but an appeal may make it a short-term success. I have an SI column on the ruling and what it means. Here's an excerpt:
8. What effect, if any, does Judge Nelson's ruling have on the NBA?
The collective bargaining agreement between the NBA and the National Basketball Players' Association (NBPA) will expire on June 30. Just like we saw last month with the NFLPA and the NFL, the NBPA is poised to decertify and the NBA is poised to institute a lockout.
On one hand, Judge Nelson's ruling sends a warning to the NBA and its owners that, at least in her view, antitrust law holds a dim view of lockouts and that judges should not wait for the NLRB to decide on unfair labor complaints.
On the other hand, the NBA is in a very different situation.
For one, the NFL's legal argument has been hampered by the fact that not one NFL team can show that it is losing money. The inability of a team to do so suggests that enjoining the NFL lockout would not force an NFL team to lose money. The NBA, in contrast, asserts that 22 of its 30 teams will lose money in the 2010-11 season, and the league is willing to open the books to prove it. A court decision to lift a lockout instituted by the NBA would therefore subject NBA teams to losing money in the 2011-12 season. Such a consequence could motivate a judge reviewing an NBA lockout to be less willing than Judge Nelson to lift the lockout.
Second, irreparable harm may be more difficult for NBA players to show, since unlike NFL players who can play nowhere else and earn an NFL-quality income, some NBA players would be able to secure lucrative contracts in Europe and elsewhere during a lockout. If NBA players can't show irreparable harm, they would not be able to convince a judge to enjoin an NBA lockout.
Third, Judge Nelson's decision would not bind a court that reviews the NBA lockout. In fact, it is likely that such a court would be in New York, where both the NBA and NBPA are located. The NFL and NFLPA are litigating the lockout in Minnesota because the parties choose to do so in their collective bargaining agreement.
Bottom line: while Judge Nelson's ruling likely caused some concern for NBA teams, the NBA is in a very different situation and a lockout may be viewed more favorably by a court.
After months of speculations and predictions the NFL draft will finally begin on Thursday, April 28th. Commissioner Roger Goodell will host the festivities—expect plenty of boos from New York's finest—and call out the names of first round picks. While sports fans will argue over selections and trades, it's important to give a nod to the man who conceived of professional league drafts—Bert Bell.
Tired of watching the NFL power brokers of the day—Bears, Packers, Redskins, and Giants—sign all the college stars, Bell proposed a new system to distribute talent. As president of the Philadelphia Eagles, Bell proposed the concept of an NFL draft at a league meeting on May 18, 1935. The goal was competitive parity and after some discussion the league voted unanimously to support this new initiative.
The Boston Globe's Greg A. Bedard has a wonderful story about Bell in the April 24, 2011 edition, noting this year serves as the 75th Anniversary of the NFL Draft. Here's a link to the story.
It is no disrespect to Bell as a pioneer if agree with Alan C. Milstein's argument, as presented in this article, that having a college draft at all is illegal.
* * * *
While the press and talking heads (quick nod of respect to personal favorite NFL Network and Boston College alumnus Mike Mayock) analyze and grade the teams' efforts over seven rounds, don't forget about how this year is unique. Traditionally, as soon as the name of Mr. Irrelevant (the last pick of the draft) is called, the phone lines begin heating up between teams and the agents of those representing “priority free agents” (PFAs).
Often it is better to be a free agent than a late round draft selection as you can choose the team with the best opportunity for someone playing your position. This year, priority free agents waiting for their cell phones to ring will hear only deafening silence. Why? Because the NFL lockout forbids any contact with free agents and that covers not only those NFL players whose contracts have ended but also those hoping to enter the league.
For many of us in the field of “sports law,” professional league drafts are fascinating symbols. As sports fans they hold that special aura of future promise for our favorite teams. However, we also understand the unique laws that forbid MBA graduates to be forced to work in a city that selects them “congratulations you're now assigned to a consulting firm in Vancouver!!” yet allows a football player to have his rights assigned and told where to report for work.
While you enjoy the pomp and circumstance of this yearly spectacle, don't forget to tip your cap to Bert Bell and give thought to those PFAs who will be waiting by the phone as brighter minds than mine try to figure out how to get the business of football back up and running.
[Note: A longer version of this article can be found at the Huffington Post here.] Posted By : Warren K. Zola
NFL and Law Panel at New York Law School this Tuesday
Message posted on : 2011-04-25 - 00:01:00
Alycia Huckabey - the President of the New York Law School Sports Law Society - lets me know about a great event tomorrow:
* * *
Please join the New York Law School Sports Law Society for an exciting event this Tuesday April 26th from 3:30- 5:30 pm. Representatives from the NFL Players Association and a current NFL player (name to be announced soon) will discuss the current NFL lockout and answer questions.The event will be held at New York Law School, in the Auditorium (A014).
Representatives from the NFL Players Association and a player from the NFL will hold a session at New York Law School, and is open to students, the public and media.
The program titled, “The NFL Lockout: How We Got Here and What Comes Next” is part of a series of appearances held at higher education institutions.
WHO:
·George Atallah, NFLPA Assistant Executive Director of External Affairs
·A Player from the National Football League (name to be released closer to
date)
·Moderated by the New York Law School Sports Law Society
MORE:
March 12, NFL owners locked out their players, ending more than 20 years of labor peace in America's most popular sport. April 19, George Atallah and a player from the NFL will host a presentation on the state of football.
Topics such as success of the game, the lockout and how the sides reached this point will be discussed. A full question-answer session will follow.
Media availability will be conducted at the conclusion of the event.
Toreros and Black Sox: Point-Shaving in Southern CA Sparks Reflection on the Recurring (Underreported?) Problem of Fixing Games
Message posted on : 2011-04-24 - 08:00:00
On April 11, 2010 a Grand Jury in the Southern District of California handed down an indictmentagainst two former University of San Diego basketball players, a former assistant coach, and seven others, for Conspiracy to Commit Sports Bribery, Conduct an Illegal Gambling Business, and Distribute Marijuana in violation of 18 U.S.C. 371. The indictment does not specify what games were fixed, but it alleges that San Diego players influenced the outcome of multiple games for monetary bribes. One of the players implicated in the scandal is Brandon Johnson, San Diego's all time leader in points and assists.
While opinions vary on the prevalence of teams “throwing” games, it has undoubtedly been going on for a long time. In fact, new evidence suggests that it may have been more common in baseball during the early twentieth century than once thought. The infamous Black Sox scandal from the 1919 World Series has been well documented, but a recent Associated Press story indicates that their cross-town rival may have done it first. A 1920 deposition of one of the banned White Sox fixers, Eddie Cicotte, stops short of accusing the Cubs of throwing the 1918 World Series against Boston, but strong inferences are made that members of the Cubs were offered $10,000 to throw the World Series and that the White Sox actually got the idea from the Cubs. Historians' note that players during this time were grossly underpaid and the bribe represented a substantial sum. The motive, coupled with a few suspicious plays during the 1918 Series, suggests that the Cubs' drought could have been at least a few years shorter than it currently stands.
While this anecdote offers an interesting insight into the influence of organized crime during that era, it is (presumably) of little consequence, considering the salaries of today's professional athletes. It would be naïve to think gambling does not play a role in professional sports (think recently paroled NBA referee Tim Donaghy), but “fixing” is much less common in the professional realm because the players have too much at stake. The question is, just how common is it at the collegiate level where NCAA amateurism standards strictly prohibit the paying of players. Like the underpaid baseball players of yesteryear, the latent motive exists.
High profile point shaving scandals have marred college basketball for decades. Point shaving at CCNY during the 1950-1951 season proved disastrous for the once prominent program. In 1978-1979, Boston College was embroiled in a scandal that involved infamous gangsters Henry Hill and Jimmy Burke. Prior to the San Diego indictments, the last major point-shaving scandal occurred at Arizona State in the mid 1990's. So are these merely isolated incidents? A 2008studyon wagering in NCAA athletics suggests probably not. The study revealed that 1.6 percent of men's basketball student athletes were asked to affect the outcome of a game and 2 percent admitted to betting on their own team.
While this percentage is not insignificant, it is difficult to predict just how pervasive the problem really is. First, the NCAA, burdened by a consistent array of compliance issues, does not have the staff to adequately monitor illegal gambling, and furthermore, the involvement of organized crime often takes investigations out of the NCAA's hands. Second, games fixing like point-shaving is difficult to prove. It usually involves minimal differences in point spreads and a player's efforts to impact a game undoubtedly go unnoticed more often than not. Finally, the best players are the ones with the most opportunity to impact games, but also the most at stake. The involvement of Brandon Johnson at San Diego proves that the star players are not immune, but a player with significant professional prospects has less incentive to risk his life and his career. The San Diego scandal may induce the NCAA to ramp up its enforcement efforts, but this incident will unfortunately not be the last.
See other writing on this Blog related to point shaving from Geoff, Howard, and Greg. HT to law clerk, Brian Konkel, for his work on this piece.
Posted By : Tim Epstein
Scocca on the expanded wild card
Message posted on : 2011-04-23 - 17:34:00
Tom Scocca at Slate, who shares my antipathy for the baseball wild card for most of the samereasons (as well as a couple I had not thought of), argues that the new proposal to add a second wild card actually turns out to be a good second-best option (the best option being eliminating the wild card altogether, which, unfortunately, is not going to happen).
As Scocca explains, the already-overstuffed schedule, along with MLB's recognition that things cannot go any deeper into November or earlier into March, means that the addition "wild-card round" must be short--one game or at most two-out-of-three. Weird things can happen in a short series. So this creates a meaningful incentive--currently missing--for a top team to win the division rather than settling for the wild card--avoid that short series. It also means that the two best second-place teams go head-to-head, rather than "battling" one another by proxy against very different (particularly in difficulty) schedules.
True, it also may mean more 87-win teams in the playoff race every year. But again, this is just a second-best option. Posted By : Howard Wasserman
Utah AG Announces He Intends to File an Antitrust Suit Against the BCS
Message posted on : 2011-04-23 - 06:00:00
USA Today reported on Wednesday that Utah Attorney General Mark Shurtleff intends to file a federal antitrust suit against the Bowl Championship Series within "the next couple of months." Shurtleff reportedly told the paper that the attorneys general of at least two other, unnamed states would join him in the suit. The story also reports that Shurtleff stated the U.S. Department of Justice has indicated it would consider following on with its own formal investigation should the state AGs take the lead by filing a suit. Shurtleff is seeking to enlist the help of an antitrust law firm to assist with the case.
This is not the first time that Shurtleff has spoken out against the BCS. A vocal critic of the BCS dating as far back as 2003, Shurtleff announced that he was formally investigating a potential antitrust claim against the BCS in 2009. Meanwhile, Shurtleff stated last October that his office had finished a draft complaint for the case. It will be interesting to see if Shurtleff follows through on this latest threat, or if he is just trying to increase the pressure on the BCS heading into its annual meeting next week in New Orleans. Given Shurtleff's previous stated desire for the U.S. Department of Justice to take the lead on an antitrust suit against the BCS, this latest announcement may also provide an indication that the federal government is unwilling to initiate a suit itself.
While the merits of such a suit can, of course, be debated (see here and here), ultimately I'd be surprised if Shurtleff's suit ever proceeded all the way to trial. There is little incentive for the BCS conferences to spend millions of dollars (and risk treble damages) defending a system that generates hundreds of millions of dollars less per year than would a playoff system.
Meanwhile, although BCS officials have previously threatened to return to the pre-Bowl Alliance post-season model should the BCS system be challenged legally, this threat rings hollow for several reasons. First, the BCS conference
schools would be leaving too much money on the table -- money they have grown to depend on during the lifespan of the BCS -- to ever seriously consider a return to the old system. Second, as Sports Illustrated's Andy Staples notes, even if college football initially did go back to the pre-Bowl Alliance days, several of the current BCS conferences (in particular the Big East and ACC) would likely fare much worse than they would under a playoff system. Therefore, even if the SEC, Big 10, Pac 12, and Big 12 were all content to return to the old system, the ACC and Big East would likely join with the current non-BCS schools to give the "have-nots" a significant majority within the Football Bowl Subdivision, dramatically increasing the pressure on the NCAA to finally implement a playoff system.
Therefore, although an antitrust suit against the BCS is itself unlikely to directly lead to a court order mandating that the NCAA adopt a playoff system, I strongly suspect that a playoff system would ultimately result should AG Shurtleff files suit. It simply doesn't make sense for the BCS conferences to expend the resources necessary to defend the current system, and in lieu of the current arrangement, a playoff system is the most practical option.
Update #1: A new report out states that AG Shurtleff will be meeting with officials from the U.S. Justice Department this week, so my assumption above that the federal government may be unwilling to be involved in the case might be premature.
Update #2: AG Shurtleff discussed his decision to file suit against the BCS with a local radio station yesterday. The interview is available here.
Posted By : Nathaniel Grow
New Sports Illustrated Column: Can Bud Selig legally take Dodgers away from Frank McCourt?
Message posted on : 2011-04-22 - 16:00:00
I have a new SI column on Bud Selig's decision to remove operations power from embattled Dodgers owner Frank McCourt, who will retain his equity interest but effectively be barred from any decision-making. Here are excerpts from the column:
* * *
. . . McCourt could argue that Selig and Major League Baseball have violated the terms of the franchise agreement and have consequently caused him financial harm. To advance that claim, McCourt would insist that Selig lacks the specific authority to take over a franchise, particularly a franchise that is allegedly in compliance with MLB's financial guidelines.
McCourt could also emphasize that other ownership groups have demonstrated numerous failings -- be they professional or personal -- and yet Selig has not exiled those owners from their teams. For instance, Selig has allowed Mets owner Fred Wilpon to remain in charge despite his exposure to lawsuits brought by victims of Bernie Madoff. McCourt could probably find other instances of owners having some combination of financial, legal or family troubles, or instances of fans outside other clubs' stadiums who have been hurt due to inadequate security. His goal would not be to slander other owners, but rather to portray his problems as far from extreme and certainly not worthy of expulsion from MLB.
* * *
In addition to the "best interests of the game" clause, MLB could also highlight the "waiver of recourse" clause found in the MLB constitution. The waiver of recourse clause prevents clubs from engaging in litigation against the commissioner, the league or other owners. Indeed, by virtue of becoming a franchise owner, an owner waives away the right to seek remedies that would normally be available through the legal system. The clause also compels owners to resolve their differences internally and to accept the commissioner's judgment as binding.
Waiver of recourse clauses can be found in a wide range of business contexts. Generally, it is difficult for purportedly aggrieved parties to overcome these clauses, especially if the clauses were freely and voluntary negotiated by sophisticated business parties (all of which would hold true with McCourt in his purchase of the Dodgers).
A waiver of recourse clause helped MLB prevail over Finley. The court held Finley could only overcome the clause if he could show that commissioner Bowie failed to follow baseball's internal rules or violated basic due process. Basic due process requires the commissioner to act fairly and not arbitrarily or with bias; the furnishing of fair notice, use of substantive hearings, reliance on neutral experts and uniform application of consistent rules all help the commissioner show that a fair and substantive process was used.
In track, the record isn't always the fastest time
Message posted on : 2011-04-21 - 22:33:00
[The following post is authored by Associated Press sports writer Jimmy Golen, who is a graduate of Yale Law School and an adjunct professor at Boston College - we look forward to more of Jimmy's excellent commentary on our blog -- MM]:
* * *
If you shoot a 58 in a PGA Tour event, that's a new record. It's less impressive if it happens in CVS Charity Classic than the U.S. Open, but it's still a record.
Home runs in the thin air of Denver's Coors Field still count the same as the ones hit at sea level in Boston. And records set by Barry Bonds, Mark McGwire and Roger Clemens still stand (see Bud Selig's comments from today about Bonds and his records), even though there's reason to doubt that they were achieved honestly.
In track and field, though, the fastest time is not always the record time, as those who followed the Boston Marathon this week learned when Geoffrey Mutai of Kenya ran the fastest 26.2 miles in history.
Mutai's time of 2 hours, 3 minutes, 2 seconds was almost a minute faster than what had been – and likely will remain -- the world record: a 2:03:59 run by Haile Gebrselassie in Berlin in 2008. Likewise, Ryan Hall's 2:04:58 was 40 seconds faster than the American record set by Khalid Khannouchi nine years ago. But because the finish line in Boston is 459 feet of elevation below the starting line in Hopkinton, times set on the historic course are ineligible for records – no matter much uphill running there is between them. Boston is also a point-to-point course; the international and U.S. governing bodies prefer loops, because if you finish near where you start it doesn't matter how much time you run with the wind at your back, you have to go about the same distance with it in your face. It's like “What goes up, must come down,” except horizontal.
Those who follow running say this is an accepted part of the culture. When someone breaks the record in the 100 meters, for example, the first thing the crowd will do is look to the anemometer to see if it was wind-aided, much like a football fan looks for a penalty flag before celebrating a touchdown. So it is not uncommon for a world record to be different – slower -- than the “world best,” and the running community has accepted this.
The goal of these rules is to certify only records set in regular competition, not “tricked-up” courses designed specially for fast times. It's possible, as a scientific exercise, to pick a 26.2-mile section of the interstate that runs slightly downhill, wait until the wind is blowing in the right direction, and fire the starting gun. It is likely that the 2 hour
barrier could be broken, but that would put the record out of reach of future, real marathons. And that is what the IAAF is trying to avoid.
It's hard to argue that wind wasn't a factor in Mutai's run. The tailwind at the start was announced at 21 mph. Anyone who's run Boston when the wind comes in from the Atlantic Ocean knows that it's a time-killer. And the fact that another runner, Moses Mosop, also beat Gebrselassie's time – and two more men broke the Boston course record – gives a sense of how much the wind might have affected the race. That doesn't taint the competition because it affects all competitors equally. But when you start measuring one race against another, which is the goal of a record book, it can be like comparing apples and herring.
Still, there is some inconsistency in the governing bodies' position. They will certify races run with “rabbits,” who are hired to run a fast and steady pace and even shield the top runners from the wind. Gebrselassie's Berlin win in 2008 was set up for him to break the record, and he did. Runners insist that this is a much bigger advantage than a tailwind, or a 459-foot drop in elevation. The IAAF also allows Boston times to be used to meet Olympic qualification standards, and USA Track and Field will let Hall into the Olympic trials based on Monday's run.
In the end, there's something just plain odd about saying that the Boston Marathon, long considered one of the toughest races in the world, is too easy to be eligible for a world record. Only three times before in history had a world record been established in Boston, all of them before the IAAF refined the rules about eligible courses. So while it has long been known that a time run in Boston would not count for a record, no one seems to have worried much about it because it was unlikely to come up. Then Mutai blistered the course on Monday. B.A.A. officials said they would apply to have the record certified, even though it's clear the IAAF can't do that without changing its rules. Rob de Castella, who won Boston in 1986, called on the governing bodies to recognize the record; this could be done either by grandfathering Boston in or by refining the rules to allow courses that go both up and down to have a larger drop in elevation.
In the meantime, we are likely to see a repeat of the debate that surfaces whenever the bright-line rules of a sport conflict with what we might more intuitively consider the right outcome. We saw it with the Tuck Rule, and with Armando Galarraga's near-perfect game. A lot could depend on which feat the running community views as the real record and how the times are described in common parlance.
One thing is clear: the B.A.A. isn't going to change its 115-year-old course to suit the IAAF. As executive director Tom Grilk told the AP the day after the race: "If somebody wants to put up a dome and chase Swifty, the rabbit from Wonderland (dog track), around, God bless them. We'll keep doing what we've been doing for 100 years: Firing off a gun and saying, 'Go.'"
Posted By : Jimmy Golen
San Fran Giants owner Bill Neukom to speak at Vermont Law School on Wednesday April 27
A World Series Legal Career: San Francisco Giants' Boss Bill Neukom to Discuss Law, Sports, Business
April 20, 2011
SOUTH ROYALTON, VT -- Bill Neukom, who became the San Francisco Giants' boss after serving as Microsoft's lead lawyer and head of the American Bar Association, will discuss law, sports and business at noon, Wednesday, April 27 in the Chase Community Center at Vermont Law School. The event is free and open to the public. "In drawing on his extraordinary career, Bill Neukom will offer our students invaluable insights into opportunities that can be pursued with a legal education and the emerging role of sports law as part of that education," said Professor Michael McCann, director of the VLS Sports Law Institute, which is hosting Neukom's talk. "He will reveal how his legal education has advanced his business, management and sports careers." Neukom, who has been managing general partner of the Giants since 2008, was named one of the "100 Most Influential Lawyers" by National Law Journal. He served as the lead lawyer for Microsoft for nearly 25 years, including 17 years as general counsel and head of the company's legal, government affairs and philanthropic activities. His duties included protecting Microsoft's intellectual property rights, most prominently in Apple Computer v. Microsoft Corp., and defending Microsoft from antitrust suits. As president of the ABA in 2007-2008, he championed access to legal services for the poor and promoted the rule of law in the U.S. and abroad. He is founder of the World Justice Project, an initiative to strengthen the rule of law worldwide, and the Neukom Family Foundation, which supports nonprofit groups in health and human services, education, justice and the environment. His interests include human rights, intellectual property rights, ethics and legal responsibility, global rule of law issues, and antitrust and consumer protection. He graduated from Stanford Law School and received a B.A. degree from Dartmouth, where he is a former chairman of the board of trustees. CONTACT: John Cramer, Associate Director of Media Relations Office: 802.831.1106, cell: 540.798.7099, jcramer@vermontlaw.edu Posted By : Michael McCann
Transitioning from the NCAA to the NBA: A Time for a Change in Rules
Message posted on : 2011-04-19 - 20:45:00
New article from the Huffington Post by Boston College's Warren K. Zola on the challenges student-athletes have in transitioning from the NCAA to the NBA under current rules.
The article starts:
"The recently concluded NCAA men's basketball tournament has once again highlighted some of the very best amateur basketball talent in the country. While some players continued to showcase their exceptional talents, new stars also emerged in the considerable spotlight of the most watched basketball tournament in the world. Many of the college basketball fans, whose sheer size enabled the not-for-profit NCAA to recently sign a 14 year, $ 10.8 billion dollar rights agreement with CBS and Turner Broadcasting, now turn their attention to the 2011 NBA Draft which will be held on June 23rd.
This article calls attention to the challenges that student-athletes in the sport of college basketball have when trying to make a fully informed decision as they evaluate whether or not they should enter the NBA draft and forgo remaining college eligibility. While unique to men's basketball, this precise situation highlights a more global trend in which colleges, conferences and the NCAA have done shockingly little to provide guidance and counsel as student-athletes across the country navigate the process of transitioning from college to professional leagues; an analysis put forth in a recently published law review article this past winter.
As is the case for every sport the process of entering the NBA is distinct and often confusing to those that have this opportunity."
To read the article in its entirety you may download it here. Posted By : Warren K. Zola
Would Appeal by Barry Bonds succeed?
Message posted on : 2011-04-16 - 14:36:00
I talk to Paul Elias of the Associated Press about this topic. Bonds plans to appeal and argue that the jury instructions for Count Five constituted a legal error by Judge Illston. While the standard of review would be de novo, I don't think the appeal would work. Elias interviews several other persons, including Stanford Law Professor Bill Gould. Here are our comments excerpted:
* * *
"Appeals are hard,'' said Vermont Law School professor Michael McCann, who specializes in sports law.
McCann and many other legal analysts said the Bonds defense team has its work cut out in flipping the jury's verdict. U.S. District Judge Susan Illston, who presided over the trial, is rarely overturned on appeal and observers said she deftly handled Bonds' three-week trial.
"An appellate court is always reluctant to overturn a trial judge with a good reputation who ran a good trial,'' McCann said. "Judge Illston was really deliberate on everything she did and the appellate court will recognize that.''
* * *
Stanford Law School professor William Gould said it will be difficult to say persuasively that the obstruction conviction is incompatible with the other charges just because the other lack verdicts.
"It's hard to argue there are mutually exclusive charges when you have only a verdict on a single charge,'' Gould said.
* * *
To read the rest, click here. Posted By : Michael McCann
Legal Play in the NFL Lockout
Message posted on : 2011-04-16 - 08:48:00
Clay Travis and I speak with J. Craig Williams about the NFL lockout for the Lawyer 2 Lawyer Show on the Legal Talk Network.
New Jersey State Bar Association Symposium: Who You Calling an Amateur? Legal Perspectives on the NCAA's Amateurism Rules
Message posted on : 2011-04-15 - 12:02:00
This looks like an excellent event:
Wednesday, April 20, 2011 – 6 p.m. Seton Hall Law School – One Newark Center, Room 373, Newark, NJ Who You Calling an Amateur? Legal Perspectives on the NCAA's Amateurism Rules
Hosted by the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association co-sponsored by the Sports Lawyers Association
This program will discuss the NCAA's current amateurism rules, proposed changes to those rules, and the recent litigation relating to the use of a student athlete's name and likeness.
This program has been approved for the following CLE credits: 1.8 NJ, 1.0 PA, 1.5 NY
$32 per person for EASL Section members, includes program, CLE credits and dinner. For those wishing to attend only the program and dinner without receiving CLE credits, the cost is $17 per person.
Individuals interested in attending can register online at the NJSBA website.
Speakers include:
Rich Ensor, Esq. (MAAC Commissioner)
Chris Monasch, Esq. (St. John's Athletic Director)
Kim Keenan-Kirkpatrick, Esq. (Seton Hall Associate Athletic Director for Compliance)
Bruce Rosen, Esq. (McCusker, Anselmi, Rosen & Carvelli)
Daniel Brown (Sheppard, Mullin, Richter & Hampton)
Kerry Cahill (former student-athlete)
Posted By : Michael McCann
Cleveland-Marshall College of Law Sports Law Symposium today
Message posted on : 2011-04-15 - 10:00:00
Sorry for the late notice, but if you're in the Cleveland area, there is an outstanding sports law symposium this afternoon at Cleveland-Marshall College of Law:
Cleveland-Marshall College of Law
Entertainment and Sports Law Symposium
The Legal Evolution of Professional Golf and Tennis
Friday, April 15, 12 p.m.- 5 p.m.
C Posted By : Michael McCann
New Sports Illustrated column: Barry Bonds Verdict: Who Won?
Message posted on : 2011-04-14 - 01:00:00
I have a new SI colum on the Barry Bonds verdict. Bonds was convicted on obstruction of justice, but Judge Illston declared a mistrial on the three perjury counts. Here's an excerpt of my column:
* * *
But federal prosecutors convict 90 percent of indicted defendants. Shouldn't they have done better here?
This question begets big picture and small picture responses.
Big picture first. While the 90 percent statistic has received a good amount of attention, it does not speak to considerable differences in wealth among indicted defendants and the possible impact of those differences on trial outcomes. Bonds possessed the wherewithal to assemble a team of leading defense attorneys, from different law firms and with complementary skills. The vast majority of indicted defendants, in contrast, cannot afford a "team" of lawyers. In fact, according to statistics provided by Department of Justice in 2000, 66 percent of federal felony defendants are represented by court-appointed counsel. Also, and less important, the 90 percent conviction rate is for all crimes; the federal government's success rate in perjury trials is slightly lower, at about 85 percent. . . .
* * *
When will Bonds be sentenced and how long will he be sentenced?
First, the defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so, as she would have to conclude that the jury was unreasonable in finding Bonds guilty.
Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.
During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.
Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.
Even if "only sentenced" to home confinement, Bonds would still experience substantial
restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.
If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.
Academics and Practitioners Ask Dept. of Justice to Investigate the BCS
Message posted on : 2011-04-13 - 21:00:00
The Wall Street Journal is reporting that a group of 21 law and economics professors and practitioners have submitted a letter to the United States Department of Justice, urging the DoJ to launch a formal antitrust investigation of the Bowl Championship Series. The letter (which is available here) argues that the BCS violates antitrust law both by unfairly restricting schools in the so-called non-automatically qualifying conferences from competing in the BCS National Championship Game and other BCS sponsored bowl games, as well as by disproportionately distributing its revenue in favor of the six automatically qualifying conferences. Signatories to the letter include economists Andrew Zimbalist (Smith College) and Richard Thaler (Univ. of Chicago), as well as law professors Roger Abrams (Northeastern Univ.) and Raymond Yasser (Univ. of Tulsa).
Division by Multiplication: Illinois Once Again Heats up the Public v. Private Debate in HS Sports
Message posted on : 2011-04-13 - 07:00:00
In 2005, the Illinois High School Association (the “IHSA”), which governs both public and private high school sports in Illinois, implemented an enrollment multiplier that requires actual enrollments of non-boundaried schools be multiplied by 1.65 in determination of classification for athletics competition. This multiplier pits smaller private schools against much larger public schools, the effectiveness of which has been hotly debated, in Illinois and other states throughout the country that have implemented mechanisms like a multiplier in an effort bring the number of state championships won by private schools more in line with their smaller numbers relative to public schools.
The multiplier has been in effect in Illinois for five years now, and last week, Illinois State Representative Michael Connelly of the Illinois House of Representatives has reignited the bitter debate over the IHSA's use of an enrollment multiplier for high school athletics competition.Representative Connelly has proposed an Amendment to House Bill 2392, which forbids the use of multiplier or multiplier-like devices in the determination of classification for athletics competition.The amendment has
gained twenty-five co-sponsors thus far.The amendment requires that competition classes be established based solely upon actual enrollments of boys and girls for respective sports (e.g. boys' enrollment determines football class).An identical form of the bill is making its way through the Illinois Senate in the form of Amendment to Senate Bill 624.
Historically, both proponents and opponents of the enrollment multiplier have sought a level playing field, but the arguments are strikingly adverse.Proponents of the multiplier denote that because parochial, private, charter and magnet schools are not bound by pre-determined school districts, these non-boundaried schools draw from a larger pool of students, and, as a result, gain a competitive advantage.Opponents argue that enrollment multipliers create unfair “David vs. Goliath” matchups that are inherently prejudicial.
The arguments being advanced in Illinois this time around are essentially the same. In a letter directed to high school principals, the Executive Director for the IHSA, Dr. Marty Hickman, stressed that a number of non-boundaried schools have won championships since the implementation of the multiplier.Thus if the goal of the multiplier was to lessen the amount of championships won by non-boundaries schools, thereby bringing the numbers of non-boundaried schools winning championships more in line with the proportion of non-boundaried schools in the IHSA, Dr. Hickman is admitting that the multiplier has failed.
Dr. Hickman also urged opposition to the Amendment on the basis that it usurps principals' governance and oversight power of the operations of the Association. The IHSA, as the governing body for high school athletics in Illinois, clearly sides with public institutions here.
Representative Connelly and his co-sponsors will argue that Dr. Hickman's contentions ignore the other end of the spectrum.While it is true that large parochial schools enjoy significant athletic success in Illinois, smaller private institutions with no history of athletic prowess are often forced to compete against public school powerhouses, leading to lopsided results that benefit no one.Also, the fact that large private schools are still achieving exemplary results indicates that the multiplier is disproportionately affecting the schools with small student bodies and even smaller budgets.
The Amendment was proposed by Representative Connelly on April 1, 2011 and has yet to be debated by the General Assembly.The rhetoric already emanated suggests that it will be furiously contested. With staunch bipartisan support on both sides of the fence, it will be interesting to see if this proposed legislation will be implemented.
Posted By : Tim Epstein
Sports Lawyers Association and Sullivan and Worcester Panel: Boom Goes the Dynamite!
Message posted on : 2011-04-12 - 12:00:00
I'm looking forward to speaking on this Sports Lawyers Association and Sullivan & Worcester panel in Boston on Thursday, April 28,2011 -- you are interested in attending, please RSVP.
The Sports Lawyers Association and Sullivan & Worcester LLP present
Boom Goes The Dynamite! Top Sports Transactions of 2010
Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 MAP
The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC. Speakers:
Saint Louis University Sports Law/Business Conference
Message posted on : 2011-04-11 - 14:00:00
Saint Louis University's John Cook School of Business is hosting a sports law/business conference April 15-16. The schedule for the event includes panels devoted to sports agents, intellectual property, gambling, and a host of other topics. Speaker bios can be found here. For practicing attorneys, CLE credit is also available. Posted By : Ryan M. Rodenberg
Fan speech and fan violence
Message posted on : 2011-04-11 - 00:04:00
The Dodgers begin a three-day series against the Giants in San Francisco tonight, with all thoughts on Bryan Stow, the Giants fan who remains in a coma after being assaulted by two as-yet-unidentified Dodgers fans following a March 31 Giants-Dodgers game in Los Angeles. The Giants have announced "World Series-level" security measures for the games. Meanwhile the Dodgers have been publicizing heightened measures (including using uniformed and armed off-duty police offers for security) when the team returns to LA on Thursday. This apparently includes reconsideration of a plan to offer (and to publicize) half-price alcohol at several weekend games, after media outlets and others lambasted the team.
My concern is that efforts to crack down on fan violence require cracking down on fan conflict. And that may, inadvertently or otherwise, lead to a crackdown on fan speech. Consider the statement from LAPD Chief Charlie Beck threatening the removal and arrest of fans who come to "antagonize" other fans or fans of the other team. But a lot of things may antagonize other fans--including my cheering too loudly for or against a team or cheering in a way that some fans do not like of wearing t-shirts or carrying signs critical of the other team. Even something as seemingly innocuous as "Remember Bryan Stow" could be seen as antagonizing or intimidating Dodger fans in the Giants' ballpark. After all, by all reports the only thing Stow did was wear Giants gear and root for them during the game. It is just too easy, in the name of preventing the outlying and unusual instance of violence, cut potential problems off at the start by steering the widest possible path and exercising a quick trigger against speech before any greater problems can occur. While that is a laudable goal, it likely will entail exercising a quick trigger against so-called "antagonistic" speech that is fully protected, in no way fighting words, and highly unlikely to lead to any actual violence.
But teams recognize that they will be criticized far more harshly if there is another instance of fan-on-fan violence than if they preemptively cut off the expression of some obnoxious fans. Posted By : Howard Wasserman
No
Message posted on : 2011-04-10 - 22:49:00
That is my simplest answer to the question that Mike and others answered for a Cincinnati Enquirer piece on whether Pete Rose should be in the Hall of Fame.
Mike argues (at least in the excerpt presented in the article) that the problem is that MLB, not a court order, imposed the lifetime ban. and Rose did not receive due process. First, I just do not place the same emphasis on Due Process that Mike does. MLB is a private entity, not a state actor, and it can give as much or as little process as it wants to give.Second, MLB was in the process of providing process--an investigation by a third party presented to a decisionmaker (Giamatti); whether that would have satisfied the Fourteenth Amendment is beside the point (although I believe it would have).(Ed: I misunderstood Mike's quotation; as he explained in an e-mail, he was not speaking of whether Rose received process, but of the process that would be necessary to reinstate Rose so as to ensure fairness to and equitable treatment of other players who have received similar bans. Not sure I agree with this point, but I withdraw the above comments).
I still disagree that the decision coming from MLB rather than following a judicial decision holds any weight. Most notably, of course, the Black Sox were acquitted, an acquittal that Commissioner Landis ignored. Again, private actor working with a lesser standard of persuasion--I have no problem with that. Finally, and most importantly, MLB did not impose the ban based on a finding that Rose had bet on baseball. Rose willingly accepted the ban as part of an agreement that halted the investigation (a consent decree or plea agreement, if you will), no doubt to avoid a formal finding that he had bet on baseball. This left Rose with plausible deniability, which he rode for fifteen years until the publication of his book.
I do agree with Mike on one point--that Rose killed his chances with his admission in the book. The problem with this truth is that people (particularly media types--I never took this view) had been pleading with Rose for fifteen years to come clean (remember the Jim Gray interview during the 1999 World Series), with the argument of "if he just comes clean, all will be forgiven." Well, he came clean and, as Mike notes, things just got worse. Maybe he waited too long.
Lastly, a quick response to George Will's point in this same article, that MLB has a problem that three all-time greats--Rose, Barry Bonds, and Roger Clemens--will not be in the Hall of Fame. Will makes the category error of lumping them together--a position I arguedagainst previously. Bonds and Clemens (and we can throw Mark McGwire in here) will not get into the Hall because of morality-tinged votes by the Hall voters, otherwise left to their own consciences and preferences. Neither Bonds nor Clemens has been banned or otherwise sanctioned by MLB. Nor is it clear that either has done anything to warrant such a sanction; whether either broke any rule of MLB is, at best, murky. Any MLB punishment would have to come under the Best Interests power, rather than on a finding of a violation of a specific rule. And a judicial decision against either one (in their perjury prosecutions or in the various defamation cases involving Clemens) is not likely to change that. We can question whether voters should make such moral choices in their Hall votes.
But that has nothing to do with Rose. Voters are not judging his morality or ethics. Rose appears to have violated a specific rule and accepted punishment for that; that punishment carried the collateral consequence of Hall ineligibility.
If all three being out of the Hall is a problem for MLB and the Hall,
the sources of the problem are very different. Posted By : Howard Wasserman
Enforcement and Infractions: The NCAA Governing Process
Message posted on : 2011-04-10 - 21:00:00
The West Virginia University College of Law Sports and Entertainment Law Society will host a special panel presentation on Tuesday, April 12th at 12 noon entitled "Enforcement and Infractions: The NCAA Governing Process." This panel will feature:
(a) Oliver Luck, Athletic Director at WVU, former NFL quarterback, former president MLS Houston Dynamos, and father of Stanford QB Andrew Luck;
(b) Ralph Cindrich, prominent football agent, attorney and owner of Cindrich & Co;
(c) Keli Cunningham, current Director of Compliance at WVU and former compliance assistant for the Big East Conference; and
(d) andre douglas pond cummings, Professor of Law at the West Virginia University College of Law and former sports agent to NFL athletes.
This panel will tackle the thorny issues that attend complying with and enforcing NCAA regulations in a modern and evolving sports culture in the United States, from a variety of perspectives. With NCAA infractions news constantly being reported, and in light of HBO's recent "Real Sports with Bryant Gumbel" where "pay for play" was debated and booster payments to football recruits, including "the money handshake" was exposed, this timely panel will undoubtedly shed light on the NCAA's successes and failures in enforcement and its infractions policymaking.
The panel is free and open to the public and will be webcast live. Posted By : dre cummings
Should Pete Rose be Eligible for the Hall of Fame?
Message posted on : 2011-04-10 - 12:00:00
With Pete Rose turning 70 this week, John Eradi of the Cincinnati Enquirer interviews several persons, including George Will, James Reston, Jr., and me, about whether Rose's lifetime ban should be lifted, which would make him eligible to be voted into the Hall of Fame. I'm generally of the view that he should be made eligible for a vote -- let the hall of fame voters have the choice -- and then he would almost certainly be rejected. I don't, however, see Baseball doing anything here -- Rose's book, My Prison without Bars, was probably the last straw.
Here is an excerpt:
* * *
Here are some of the comments of the three national commentators:
Law professor Michael McCann, who is sports law institute director at Vermont Law School, SI.com columnist at Sports Illustrated and co-founder of Harvard Law School's "Project on Law and Mind Sciences," believes that Hall of Fame voters should have a chance to consider Rose on their ballots.
He said an exception could be carved out for Rose to be removed from the permamently ineligible list, because it was Baseball -- not some court order or decision -- that placed him on the list to begin with. If Baseball approached it in a deliberate way, and was mindful of all parties' due process in the matter, the exception could be made.
But McCann doesn't think Rose will make it.
"The (2004) book ('My Prison Without Bars,' in which Rose admitted he bet on baseball), "may have cost him that shot," McCann said. "He did himself a disservice. ... Like all things in sports and in life, it's the coverup that really upsets people."
National editorial-page columnist George Will: "Gambling is the scarlet sin in baseball, (going back to 1919). ... Forgiveness is a virtue, but there's a difference between people forgiving him in their hearts and Baseball forgiving him (for the purpose of clearing his way to the Hall of Fame). Clearly, Baseball is in a pickle. The all-time home run leader (Barry Bonds) and one of the greatest pitchers ever (Roger Clemens) and the all-time hit leader (Rose) are not going to make it. It is a blow to the Hall of Fame ... To get Rose in (posthumously), you'd have to pair him with Shoelesss Joe, and even then it would take a Solomonic commissioner (to explain it)."
Historian James Reston Jr., author of "Collision at Home Plate: The Lives of Pete Rose and Bart Giamatti."
"I think Rose dishonored the game and himself. I don't think he should be in (the Hall of Fame Gallery, where the plaques are displayed), but I think Cooperstown is one of the most important museums in America, and that the whole Pete Rose thing of performance on the field and the scandal ... should be prominently displayed. It's a great way to (give exposure) to why betting on baseball is such a cardinal sin."
Reston said he agreed with the original drafting and enforcing of baseball's rule on betting that there is no distinction to be drawn between betting on ones team or against it.
"The central point is that when I buy a ticket am I seeing an authentic display of skill?," he said. "There can't be any hidden factors, whether it's (steroids) or somebody with a bet on the outcome."
He had harsh words for Baseball's higher-ups and the Hall of Fame, however, for treating Rose as a "persona non grata."
One can give Rose the full treatment in Cooperstown without having to issue a formal forgiveness for purposes of giving him a plaque, Reston said.
* * *
To read the rest, click here. Posted By : Michael McCann
Panel Discussion: Ethics in Athlete Representation
Message posted on : 2011-04-09 - 14:17:00
On Friday, April 15th at 6:00 pm Suffolk Law School will be hosting a panel discussion entitled "Ethics in Athlete Representation” and will focus on the ethical dilemmas amateur athletes, agents, and Universities face in today's society.
If you're able to attend this free event, RSVP at this link.
The panel will feature:
Greg Bedard (Moderator): NFL Columnist for the Boston Globe.
Josh Luchs: Former NFL Agent who was the subject of the Sports Illustrated Cover Story in October 2010. “Confessions of a Former Agent” revealed the dishonest practices between Agents and soon-to-be professional athletes.
Darren Heitner: CEO of Dynasty Athlete Representation and Creator of SportsAgentBlog.com. Mr. Heitner just recently became a certified agent and his website is well respected amongst the Sport Law Community.
Michael “Mook” Williams: Current Consultant/Agent for National Sports Management and Certified NFLPA Agent.
Warren K. Zola: Professional Sports Counseling Panel Chair at Boston College. Mr. Zola's primary responsibility in this job is assisting Boston College student-athletes in their transition from college to the professional ranks. Posted By : Warren K. Zola
New Sports Illustrated Column: Closing Arguments in Barry Bonds Trial
3. What are the prosecution's chances for landing a conviction?
The odds are stacked against the prosecution. Despite the years they have had to prepare for this trial, prosecutors struggled to make the case that jurors should believe -- beyond any reasonable doubt -- that Bonds knowingly lied under oath.
Most damming, purportedly compelling government witnesses -- Kimberly Bell, Steve Hoskins and Ting -- contradicted one another and collectively gave the impression of a case built on unreliable memory, uncertain credibility and indirect evidence.
Should Bonds be found not guilty, the prosecution's decision to call Ting to the stand will be second-guessed for a long time. If prosecutors knew that Ting would blatantly contradict other witnesses, including in regards to conversations with Steve Hoskins and whether purported changes to Bonds' body were caused by steroids, why did they put him on the stand? If they didn't know of his testimony, why didn't they know? If Ting knowingly lied on the stand, then he should be charged with perjury. We'll see if that happens.
The jury also received mixed testimony regarding whether Bonds fully understood that Anderson provided him with substances that were classified as "steroids" under the law and Major League Baseball rules. If Bonds did not know that he was taking "steroids," then he did not commit perjury in saying that he never used steroids. A better characterization of the operative definition of "steroids" may have aided the prosecution.
Also, while jurors heard a recording that featured Anderson and Steve Hoskins discussing steroids and Bonds, the recording, limited by inferior sound quality, lacked the impact that was suggested by its transcript. A reading of the transcript may have proved more persuasive.
The government can still secure a conviction. Kathy Hoskins was a believable witness. The defense, moreover, declined to offer any witnesses or evidence to rebut her incriminating statements. If the jury reasons that Kathy Hoskins was telling the truth about Anderson injecting Bonds, it could decide to convict Bonds on Count Two.
But jurors may be wary of convicting Bonds based on the lone testimony of one, albeit credible, witness. They may also conclude that given the totality of limitations in the government's case, no conviction is warranted. In light of its decision to not call one witness, the defense seems to be banking on the jury viewing the case against Bonds on the whole rather than on the specific pros and cons of each count.
4. So couldn't the defense's decision to not attack Kathy Hoskins's testimony backfire?
Sure. Kathy Hoskins gave jurors every reason to believe her. Plus, during cross-examination, Bonds's attorney Cristina Arguedas was largely unable to connect Kathy with her less credible brother, Steve. Along those lines, jurors may have been expecting the defense to call at least one witness to the stand who would cast doubt on Kathy Hoskins. Without such a witness, jurors might reason that the defense simply had no one to challenge Hoskins. If so, they might find Bonds guilty on Count Two.
But the defense had a difficult decision to make. If they went
after Kathy Hoskins, then the trial's focus could have become a referendum on Count Two and Hoskins's credibility. Such a development would have worked in the prosecution's advantage. Kathy Hoskins was prosecutors' best witness and Count Two was their strongest charge. By declining to call any witnesses, the defense instead hoped that jurors will find overall weakness in the government's case and thus find Bonds not guilty on all counts.
* Dodgers Ownership Divorce, Fox TV Contract, and Frank McCourt Suing Major League Baseball? Bill Shaikin of the Los Angeles Times discusses how Frank McCourt could sue Major League Baseball and commissioner Bud Selig if Selig rejects a TV deal between the Dodgers and Fox. The prospective TV deal between the Dodgers and Fox would potentially end the thorny divorce proceedings between Frank and Jamie McCourt, as both would get a substantial amount of money in the deal.
But Selig allegedly wants McCourt to sell the team and may reject the TV deal. That could lead to McCourt suing MLB. As I discuss in the story, I don't think the lawsuit would succeed - in the franchise agreement between an owner and MLB, the owner contractually agrees to not sue MLB. However, if a court found that Selig was somehow arbitrary and capricious in rejecting the TV deal, perhaps there would be some running ground with the lawsuit. Click here to read the story.
* Is the NFL Lockout comparable to the NHL Lockout? Not really. John Glennon of The Tennessean explains why the NFL's decision to impose a lockout is very different from NHL's decision to do so in 2004. Here's an excerpt: " The NHL appeared to be moving toward financial crisis prior to its lockout, as a majority of the teams — especially those in smaller markets such as Nashville — were losing money. NHL salaries had jumped dramatically in the preceding decade, as player costs increased from 56.6 percent of total league revenue in 1994 to 75.6 percent in 2003, according to John Vrooman, a sports economist at Vanderbilt University.There was no salary cap in place at the time. . . " Click here for the story.
* Will a Connecticut bill that requires colleges and universities to more fully close terms of athletic scholarships pass? Dan Fitzgerald explores this topic over on Connecticut Sports Law Blog. Click here for the story.
Bonus link from Dan: Should the Hartford Whalers return to the NHL? As a Bruins fan growing up, I recall some great match-ups against Kevin Dineen, Ron Francis and others on the Whale. Would love to see the Whalers return and more NHL hockey for New England.
* File and Trial strategy for Pre-Arbitration players Darren Heitner of Sports Agent Blogexplores that strategy for MLB teams in the Rays signing Wade Davis.
* What does the Defense need to do in Barry Bonds trial? Paul Elias of the Associated Press explains what needs to be done -- namely, figure out how to rebut Kathy Hoskins's damaging testimony. Click here for the story.
* Coverage of Harvard Law School Sports Law Symposium and Sonny Vaccaro's Keynote Address I was honored to participate in last Friday's outstanding symposium.
If you would like to watch Sonny Vaccaro's keynote address in its entirety, click here (the link also takes you to an excellent story by Lewis Rice on Vaccaro's address).
* Sports Law Panel at New York University School of Law on Wednesday, April 13
From Bird to Brady: Collective Bargaining in American Sports
Brought to you by The NYU School of Law IPELS Sports Law Committee
April 13, 2011, 12:30 - 1:45 pm Greenberg Lounge, Vanderbilt Hall 40 Washington Square South, New York, New York
The biggest and most challenging issue facing American sports leagues today isn't criminality, career-threatening injuries, or even performance-enhancing drugs - it's collective bargaining. The stakes are high - for players, franchises and most of all fans. These issues have caused shortened seasons in the NBA and MLB, an entirely cancelled season in the NHL, and now threaten to delay the most profitable sport in the world - the NFL.
What will become of our beloved national pastimes? Hear from the professionals at the negotiating table and on the sidelines who are making these tough decisions, and ask the questions that America wants to know.
PANELISTS James Quinn, Partner, Weil, Gotshal & Manges LLP and outside counsel for NFL players in the Brady v. NFL lawsuit L. Robert Batterman, Partner,
Proskauer Rose LLP and outside counsel for the NFL and NBA Russ Granik, former NBA Deputy Commissioner Jon Wertheim, Senior Writer, Sports Illustrated Robert Boland, clinical associate professor of Sports Management, NYU Preston Robert Tisch Center for Hospitality, Tourism, and Sports Management
* Sports Law Panel at Nationals Park in Washington D.C. on Monday, May 2
Valuing Professional Sports Franchises: An Inside View of the Purchase and Sale Process Time:
Monday, May 2, 2011 from 5:45 pm to 7:00 pm
Description
Why are professional sports franchises such highly valued assets? Join us and hear industry experts explain 1) the metrics for determining such valuations, and 2) the legal and business issues that arise in the purchase and sale process. Then stick around for the Washington Nationals game against the reigning World Series champion San Francisco Giants!
The AEMS - Washington Nationals event has sold out the past two years. Limited seating is available, so do not delay. D.C. Bar staff will distribute the game tickets at Nationals Park the night of the event. Tickets must be picked up prior to the start of the panel discussion. ID is required for pickup.
Please Note: The program will be held in Conference Center Room #6 (behind section 201 on mezzanine level - left field side).
This Off the Record Evening Program is sponsored by the Arts, Entertainment and Sports Law Section.
Location
Nationals Park 1500 South Capital Street, SE, Navy Yard Metro Conference Center Room #6 Washington DC 20003
I wanted to let you know about a charity event I am hosting and running for Rutgers football star and Woodbridge, NJ resident Eric LeGrand. The event will be held on July 23 between 1pm-8pm and will feature a list of musical talents and influential sponsors.
Details on the event:
www.52Fest.com ABOUT 52 FEST DATE: Saturday, July 23rd 2011 TIME: 1pm - 8pm LOCATION: THE FIELD BEHIND: WOODBRIDGE HIGH SCHOOL / LIBRARY / HEALTH CENTER 1 Samuel Lupo Place Woodbridge, NJ 07095
52 FEST is a benefit dedicated towards Eric LeGrand, Woodbridge Township Resident (NJ) and Rutgers University Football Star.
The benefit will feature an array of musical talents and a list of
influential sponsors. Proceeds will go towards renovations to Eric's house including a handicapped ramp, bathroom, and an additional room.
52 Fest is about progress, hope, growth, positivity, selflessness, love, and the ability to envision a brighter future. Through Eric's journey of perseverance, he has influenced the hearts, minds, and souls of many. Our only goal for 52 Fest is to impact Eric's life the same way he has ours.
New Sports Illustrated Column on Tom Brady v. NFL: What to Expect
Message posted on : 2011-04-04 - 13:15:00
I have new, a nearly 4,000 word, 12-point column on SI.com on what to expect in Wednesday's preliminary injunction hearing in Tom Brady v. NFL and how the case will impact NFL football.
Here is point 9:
9. What about Eller v. NFL, the other antitrust lawsuit that was just filed?
Late last month, a class of retired and prospective NFL players filed a lawsuit, Carl Eller et al. v. NFL, with similar antitrust claims as found in Brady v. NFL. The lawsuit was filed in the same court as Brady v. NFL: the U.S. District Court for the District of Minnesota.
Eller v. NFL is different from, and potentially more threatening, than Brady v. NFL because neither retired players nor prospective players -- the plaintiffs in Eller v. NFL -- are bargaining members of the NFLPA. With the NFLPA decertified, moreover, it cannot represent the interests of the Eller plaintiffs. Put more basically, the NFLPA may be removed from the picture in Eller v. NFL, a point which would take away a key defense the NFL enjoys in Brady v. NFL.
In Brady v. NFL, the NFL contends that the plaintiffs, while members of the NFLPA, engaged in bad faith during the collective bargaining discussions to bring an antitrust lawsuit. But in Eller v. NFL, the NFL cannot argue that the plaintiffs engaged in bad faith to bring an antitrust lawsuit, since neither prospective nor retired players were among those who collectively bargained with the NFL.
Retired players, moreover, are arguably harmed by the lockout because NFL-sponsored programs that address the needs of retired players are partly financed by fines of NFL players. During a lockout, no NFL player will be fined, thus removing a funding source for these programs.
For their part, prospective players claim to be harmed by the NFL lockout because they are "boycotted" by competing NFL teams from using their football talents for compensation. They also emphasize that there is no substitute league for the NFL that would significantly mitigate their harm.
The NFL, however, will likely highlight decisions by courts which express that players' associations bargain not only on behalf of current players, but also on behalf of those not yet in the league and those who were already in the league. As a result, the NFL will maintain that neither college players nor retired NFL players have standing to bring a lawsuit: although the Eller plaintiffs are not formal members of the NFLPA, their interests are represented by those formal members.
In response, expect the Eller plaintiffs to insist that because the NFLPA is decertified, it cannot represent any players, be they prospective, current or past.
Eller v. NFL could become extremely important should Judge Nelson deny the Brady plaintiffs' motion for a preliminary injunction on Wednesday. The Eller lawsuit also asks for a preliminary injunction against the lockout, and depending on Judge Nelson's reasoning should she reject one in Brady v. NFL, it is possible that Eller v. NFL could open the door for a second bite at the lockout apple.
Thoughts on the Duke lacrosse decisions--Substance
Message posted on : 2011-04-04 - 00:30:00
Upon actually reading the opinions in Evans (the indicted players) and Carrington (the unindicted players), it appears (contrary to what news reports and self-interested bloggers suggested) that the indicted players kept most of their case, while the unindicted players have much less left in theirs. Still, there is something left in both cases, particularly in their constitutional claims.
By the way, the opinions were released just over five years to the day of the team party, the false charges, and the early steps in this mess. And just to make the timing of things really strange, Crystal Mangum, the exotic dancer whose allegations really started it all, was arrested early Sunday morning in connection with the stabbing of an unidentified man (believed to be her boyfriend).
1) In both cases, the court denied dismissal of Fourth Amendment claims based on the intentional or reckless suppression and withholding of evidence and the fabrication or manufacture of false evidence for use in pretrial proceedings (magistrate proceedings producing warrants and grand jury) resulting in a search or seizure--the indictment and arrest of Evans, Finnerty and Seligmann; the photographing and DNA testing of the unindicted players; and the issuance of various warrants. As to the indicted players, the court further predicted that the Fourth Circuit would recognize a Fourth Amendment claim by a person arrested pursuant to a process (including a grand jury indictment) that lacked probable cause, where officials intentionally or recklessly lied or hid facts or fabriacted the evidence used in that process. In addition, the court recognized overlapping Fourteenth Amendment claims for the same conduct (acknowledging the gray area and uncertainty in which various constitutional rights and liberties interact).
The problem I had seen with the Fourth Amendment claims was that the indicted players never went to trial and the unindicted players never were involved in any formal processes. But this potentially meant that police and prosecutors could fabricate or withhold evidence at will, as long as the material never was used in any formal proceeding. (Or, at the very least, such a claim would have had to run through catch-all substantive due process and City of Sacramento v. Lewis's shocks-the-conscience test). But if such a claim can stand as to any deprivation of liberty at any stage of the criminal process, it may have some legs. It also may go along way to allowing § 1983 to provide some check on abuses within the criminal-justice process.
2) The court also denied dismissal of Fourteenth Amendment claims by both sets of plaintiffs based on the various false and incriminating media statements by Nifong and the police. This again was a claim that I believed lacked merit, because the making of the statements did not violate any right beyond the players' reputation and the stigma associated with loss of reputation--which does not violate the Fourteenth Amendment under Paul v.
Davis. But the court adopted (from other circuits) the "stigma-plus" theory of the Fourteenth Amendment, under which the Fourteenth Amendment is violated by statements that impose a stigma in connection with unlawful arrests, searches, or seizures that violate the Fourth (or, I suppose, the Fourteenth) Amendments.
3) The court rejected in both cases allegations that Duke or its top administrators was a state actor as to the constitutional claims. The only constitutional claim against a Duke person that survived (shockingly) were the claims against Tara Levicy, the ER nurse who examined Crystal Mangum and told officers that Mangum had suffered injuries "consistent with" sexual assault, which lead to the warrants and other investigations. The court accepted that these allegations sufficiently alleged a conspiracy and joint action between Levicy and the police, in part because the officers had tried to shift the blame to Levicy.
This one seems wrong to me, at least as alleged. Conspiracy as a test for state action usually requires far more conscious agreement to engage in obviously unlawful conduct. Levicy is alleged to have given the police inaccurate information about the rape-kit exam, information she was neither qualified nor authorized to provide. There are no allegations that she knew this information was wrong or that she did this intended to help the police frame the players. It thus seems a stretch to say that her conduct in speaking with and cooperating with the officers (however much in error) is atrributable to the state. I also thought it odd that the court pointed to the officers' attempts to blame Levicy as somehow relevant to whether she is a state actor.
By contrast, the court seems on stronger footing in the indicted players' case in finding thet DNA Security, Inc. (DSI) and its president and lab director were state actors, where they explicitly agreed with Nifong not to fully disclose information from the DNA tests, conduct that is facially and obviously wrongful.
4) The court rejected defenses of prosecutorial immunity by Nifong and his chief investigator and of qualfiied immunity by all public officials. Prosecutorial immunity was not in play because the conduct at issue was investigative, involving the suppression and manufacture of evidence during an investigation, rather than anything as prosecutorial advocate for the state. Qualified immunity was denied because the Fourth and Fourteenth Amendment rights at issue were clearly established.
The prosecutorial immunity decision seems right, since most of Nifong's misconduct involved his leadership of the investigation in the case, apart from anything that happened in judicial proceedings.
The qualified immunity decision is weaker, I think. The court was very cursory in its analysis, usually simply declaring that the right at issue was clearly established without explaining how it reached that conclusion or analyzing the state of the law to show that the right was clearly established. For example, the court held that the Fourteenth Amendment liberty from false government statements was clearly established, even though the Fourth Circuit never had adopted the stigma-plus theory. Similarly, the court was explicitly predictive in stating its view that "the Fourth Circuit would recognize a potential § 1983 claim for violation of the Fourth Amendment when an individual is arrested pursuant to legal process that was not supported by probable cause." The court used similarly predictive language about a claim based on an official's intentional or reckless fabrication of evidence to present before a magistrate (in seeking a warrant) or a grand jury (in seeking an indictment). But predicting that the Fourth Circuit would recognize such a claim is not the same as saying the Court has recognized such a claim and the latter is necessary to say a right has been clearly established. And the court never tried to classify these claims
as "so obviously violative that analogous cases are not required"--although if there is such a claim, suppressing/fabricating evidence would seem to fit.
It will be interesting to see what the officer defednants do next. Denial of qualified immuniy is immediately appealable, at least where the denial is based on the purely legal question of whether a right was clearly established. So the government defendants could preempt much of discovery, at least for now (in the face of the crowing of plaintiffs' counsel and PR team in both cases about how they are going to wade hard into discovery) and at least as to the constitutional claims by seeking immediate review as to the legal issue of clearly established. On the other hand, the court took great pains to make clear that it was taking only a preliminary look at the qualified immunity issue and that it fully expected to take another, closer look on subsequent summary judgment motions.
5) The unindicted players brought a number of tort and contract claims against Duke, Duke President Richard Brodhead, a university vice president, and the dean of students, based on interactions the players immediately after the rape charges came out. The upshot of all the claims is that Duke and the administrators sold the players old--they tried to get the players to talk to them in detail about the events; disclosed details of purportedly confidential meetings to the police and DA; tried to strong-arm the players into talking with them and not seeking support from parents or outside counsel; failed to support the players publicly and in fact undermined them by canceling the season and firing Coach Mike Pressler; and failed to protect the players from harassment and criticism.
Of these, the one that survived dismissal was a claim for constructive fraud, but based only on the narrow theory that university officials created a confidential relationship with the players by encouraging them to talk openly with university officials once the controversy broke and by trying to close them off from outside assistance from their parents or non-university counsel. The court rejected broader theories of a general special or fiduciary relationship between a university and its students or its student-athletes or of a general duty to protect its students/student-athletes from criticism by other students or faculty. The court also rejected the theory that the anti-harassment policies in the student handbook create a contractual obligation between the university and its students.
All in all, a mixed bag. The players are declaring victory here and it is somewhat deserved--not-insignfiicant portions of both cases live another day, although they may run into a new roadblock at summary judgment. In fact, even while denying dismissal of numerous claims, the court used language suggesting his view that this analysis was very temporary and preliminary, that the players continued to beat a weighty burden (with even stronger hints that he questioned whether the unindicted players could show damages), and that most of these legal and factual issues would be revisited, probably more rigorously and strictly, at summary judgment. Posted By : Howard Wasserman
Sports Law Blog Sparring Session Round 2
Message posted on : 2011-04-03 - 22:30:00
A Quick Review of Legal, Regulatory, and Contractual Issues in Boxing and MMA from the Past Several Weeks
Arbitrator Sends Donaire Back to Top Rank in a Flash: Unified bantamweight titlist and pound-for-pound entrant Nonito (The Filipino Flash) Donaire, fresh off of his crushing February 19, 2011 stoppage of Fernando Montiel, found himself at the center of the latest legal battle between Top Rank and Golden Boy Promotions in mid-March when he signed a multi-year promotional agreement with Golden Boy Promotions and filed a lawsuit against Top Rank seeking a declaratory judgment stating that he had no further obligations to Top Rank due to alleged breaches of contract.At the time, Top Rank felt that it still had a valid contract with Donaire and indicated that it would enforce its rights under the agreement.Sure enough, Top Rank did, and by the end of March, an arbitrator enjoined Golden Boy from promoting Donaire during the time remaining on his agreement with Top Rank.A message to all professional boxers in promotional agreements who wish to go elsewhere:Be very certain that your promotional agreement has either expired, or has been materially breached, under its terms before making any drastic moves.We'll find out in the coming months if WBA Light Heavyweight Champion Beibut Shumenov did just that, as he recently announced that he was severing ties with his promoter, Goossen-Tutor, and is seeking a declaratory judgment in a Nevada court to support his position.
Could Solis be a Loser Again in His Own Personal Battle of Wounded Knee?:It was widely rumored after his suspect first round stoppage loss to Vitali Klitschko on March 19, 2011 that Odlanier (La Sombra) Solis had covered up a pre-existing knee injury so that he would be permitted to fight.While his handlers vociferously rejected any such notions, the controversy begs the question of what could happen if an athletic commission suspended a boxer for failure to disclose an injury?In New York, Solis could be denied a license on three separate grounds if such a finding were made elsewhere.First, the New York State Athletic Commission is empowered to deny a license to anyone for “medical reasons.”Secondly, the Commission is empowered to revoke or suspend a license (though not expressly deny one) on the grounds that a boxer “has been guilty of or attempted any fraud or misrepresentation in connection with boxing[.]”Finally, New York could simply decide to recognize another commission's suspension and decline a license for that reason as well.In sum, if an adverse finding were to
come out of Germany as to the outcome of the Solis-Klitschko fight, Solis may lose another battle or two because of his wounded knee.
Nevada Debating Bill That Will Hopefully Not Stay in Just Las Vegas:A bill was introduced in the Nevada State Legislature in late March that would attach fees to boxing tickets and funnel the money earned from same to the medical expenses for retired boxers.An amendment to the proposed bill also provides that promoters would have to carry $200,000 in catastrophic injury insurance, an increase of $150,000 from the current mandate.The proposed bill faces opposition from the Nevada State Athletic Commission, as Executive Director Keith Kizer reportedly believes that the additional fees and insurance coverage are both unrealistic and could have a chilling effect on professional boxing in Nevada.Whether the bill is successful or not, here's hoping it will lead to renewed dialogue about how to care for boxing's wounded warriors once their careers are over.
West Virginia Joins the MMAdness, Forest Lake Stops It:While West Virginia became the latest state to regulate MMA this past month, Forest Lake, Minnesota recently did its part to remain part of the nation's dwindling opposition to it.Following a several day showdown that pitted Forest Lake city officials against MMA promoter Vivid MMA, an amateur mixed martial arts event scheduled for April 2, 2011 was canceled pursuant to a local ordinance that makes it a misdemeanor offense to “permit or participate in the practice or promotion of ultimate fighting.”Between the vagueness of the ordinance as to what constitutes “ultimate fighting” and the Minnesota Combative Sports Commission's power to regulate MMA statewide, it would not surprise Standing 8 Court to ultimately see a legal challenge to the ordinance, which places Forest Lake distinctly out of sync with the rest of Minnesota.
New York Will Not Be Out of Commission After All: As first reported on “The Fight Lawyer Blog” on March 29, 2011, a provision in New York Governor Andrew Cuomo's proposed budget that would have resulted in the elimination of the salary of New York State Athletic Commission Chairperson Melvina Lathan was itself eliminated from the budget.The result is that the New York Athletic Commission will not lose Lathan as its Chairperson, at least not during the upcoming budget cycle.For more on the risks of cutting Lathan's salary and the New York State Athletic Commission's budget as a whole, please see “The Risks of Putting New York Out of Commission” at http://www.8countnews.com/news/125/ARTICLE/3401/2011-03-06.html.
“Forged Fight” Results in Two Early Casualties:The lawsuit between heavyweight contender Shannon Briggs and The Empire Sports and Entertainment Company has already resulted in two casualties before the pending motion to dismiss Briggs' complaint was even decided by the New York County Supreme Court.On March 21, 2011, it was reported that The Empire was withdrawing from the boxing business, leaving its former president, Greg Cohen, to form his own promotional company.The following day, it was reported
in The Sun, a London newspaper, that Briggs announced his retirement from boxing via Twitter due, in part, to his disgust with the business of boxing. While The Empire's hasty withdrawal from the boxing world left the boxers it had under contract in limbo as promotional free agents, Briggs' departure from boxing marks the end of the career of one of the most explosive and charismatic heavyweights of the past 15 years.For more on the lawsuit that likely helped spark these recent events, please see “Briggs-Klitschko; A Forged Fight?” at http://www.8countnews.com/news/125/ARTICLE/3432/2011-03-12.html.
And Speaking of “Night of the Young Heavyweights” Alum Involved in Late Career Controversies: HBO's March 16, 1995 “Night of the Young Heavyweights” was supposed to introduce the world to both the undefeated Shannon Briggs and his similarly undefeated New Zealand counterpart David Tua.At the time, Briggs was regarded as such an uber-prospect by boxing cognoscenti that HBO did even both bother profiling his opponent, Darroll (Doin' Damage) Wilson, in its pre-fight review of the young heavyweights featured that night.However, while Tua did his part to say hello to boxing fans around the world that night by savaging future world titleholder John (The Quiet Man) Ruiz in perhaps the most explosive 19 seconds in heavyweight history, Briggs' momentum hit a massive pothole when he was shockingly stopped by the unheralded Wilson in three rounds.Fast forward to March 2011, and Briggs and Tua were again the talk of the boxing world this past month, although this time, both for negative reasons.As noted above, Briggs tweeted his retirement from boxing just a short period of time after filing a lawsuit against his old promoters/ business partners.Meanwhile, Tua was involved in a controversy of a different kind as his latest opponent, Demetrice King, was not paid for several days following his 10-round decision loss to Tua on March 19, 2011.The origin of the dispute was reportedly confusion as to who was responsible for King's purse and has since been resolved.Tua's opponents going forward, however, will likely be wary of committing to a fight with him if not provided with written upfront assurances that they will be paid in a timely manner.As a side note, while Tua went the distance with King, Briggs laid waste to King in two rounds back in 2005.
Team Mayweather Fails to Weather the Defamation Storm: United States District Judge Larry Hicks recently denied Team Mayweather's motion to dismiss the defamation suit brought by Manny Pacquiao on December 30 2009.The lawsuit, which was the result of a host of allegations concerning Pacquiao's alleged use of performance enhancing drugs, was kept alive after Judge Hicks found that Pacquiao “sufficiently pled malice[,]” the key element in a defamation suit filed by a public figure.For Standing 8 Court's initial thoughts and commentary on this lawsuit, please see “How Team Mayweather May be Able to Weather the Defamation Storm” at http://www.8countnews.com/news/138/ARTICLE/2192/2010-01-01.html.
Pac Man Allows Fans and Skeptics to Gobble Up His Supplements:In an apparent
response to lingering questions as to Manny Pacquiao's use of dietary supplements and/or performance enhancing drugs, Pacquiao's conditioning coach Alex Ariza told FIghthype.com in mid-March that he would begin providing information on all of the supplements provided to Pacquiao on Team Pacquiao's official website.Sure enough, a quick look at “Ariza's Training & Diet” blog on the “Official Manny Pacquiao Website” reveals several postings by Ariza detailing exactly what supplements he has been providing to Pacquiao.Whether Ariza's blog provides full disclosure will be revealed by the Nevada State Athletic Commission and the drug testing it will administer to Pacquiao in advance of, and immediately after, his May 7, 2011 bout with “Sugar” Shane Mosley.For more on drug testing in professional boxing, please see “The Rules Regarding Blood That May Put Mayweather-Pacquiao in the Crypt” at http://www.8countnews.com/news/125/ARTICLE/2169/2009-12-23.html and “Has the Mayweather-Pacquiao Drug Controversy Touched on The Cure for a Lack of Uniform Rules?” at http://www.8countnews.com/news/138/ARTICLE/2209/2010-01-07.html.
Can UFC's Acquisition of Strikeforce Create Trust Issues with the U.S. Government?:The UFC made another substantial step towards assuring its continued supremacy on the U.S. MMA scene in early March when it acquired rival promoter Strikeforce.After UFC's announcement of the merger, internet chat boards were abuzz about its implications.At least some of those chat boards also hosted debate as to whether UFC's acquisition raises any anti-trust concerns.While it may be premature to suggest UFC has an actual monopoly on the promotion of MMA in the United States, the Clayton Anti-Trust Act makes it illegal to partake in mergers and acquisitions that substantially reduce market competition.In the event that MMA becomes a priority for the U.S. government, therefore, an anti-trust claim may be one way they can endeavor to go after the UFC.Given the proliferation of MMA promoters throughout the country and the nation's increasing appetite for MMA, however, such a claim would likely face a difficult battle in court.
Morals Clause Alert Turns Out to be False Alarm in Germany:In late March, a German court overturned the assault conviction of WBO Light Heavyweight Champion Jurgen Brahmer on appeal citing a lack of evidence.The reversal means that Brahmer will not be facing a 16 month prison term any longer for purportedly hitting a woman during a bar fight, and clears him to focus solely on his upcoming title May 21 title defense against Nathan Cleverly.It also means that his management and promotional teams need not spend any more time reviewing any morals clauses or tolling provisions that might have in their respective agreements to evaluate how to protect their interests during, or as a result of, Brahmer's incarceration.For more on the use of morals clauses and tolling provisions in boxing contracts, please see “Throwing Stones When Living With a Glass Jaw?”at http://www.8countnews.com/news/138/ARTICLE/1872/2009-08-31.html and “Toll Road Back to Ghost Town?” at http://www.8countnews.com/news/138/ARTICLE/1968/2009-10-05.html.
Nevada Believes Silva Took a Leak on Their Drug Testing Protocols: UFC light heavyweight contender Thiago Silva is scheduled to appear at a suspension hearing before the Nevada State Athletic Commission on April 7, 2011 after allegedly submitting a urine sample “inconsistent with human urine” following his January 1, 2011 victory over Brandon Vera at UFC 125.Silva has not yet been suspended, and has 20 days after his receipt of any complaint to answer same.If it turns out that the urine actually came from a rooster and not Silva, Standing 8 Court will consider his actions a step backward in the battle to stop comparisons between MMA and cockfighting.
Reverse Sanctioned Offenses Alert in Germany:Back in January, the British Boxing Board of Control (the “BBBC”) advised that it would not approve WBA Heavyweight Champion David (The Hayemaker) Haye's mandatory challenger Ruslan Chagaev for a license due to his history of hepatitis B.Not satisfied with the BBBC's decision and its implications, Chagaev's promoter, Klaus-Peter Kohl, is now threatening the WBA with a lawsuit if it does not compel the bout to take place.Kohl notes that Chagaev participated in a sanctioned WBA eliminator and paid the fees for same in support of his position, but fails to acknowledge the weight that the BBBC's decision may have placed on the WBA's own decision making process since the eliminator.
DidJose Canseco Find a Way to Scandalize a Second Sport?: In 2005, would be Hall-of-Fame baseball player Jose Canseco sent shockwaves through Major League Baseball with his tell-all account of steroid use in professional baseball.He now may have found a way to scandalize the next sport he decided to try out, celebrity boxing.It was widely reported in late March that Canseco quietly sent his twin brother, Ozzie, to participate in a celebrity boxing match at the Seminole Hard Rock Hotel & Casino in Hollywood, Florida in place of him.Canseco purportedly denied the allegations in a telephone call with the New York Post and placed the blame squarely on the card's promoter, Damon Feldman.He allegedly stated that Feldman tried to pawn off Ozzie Canseco as Jose at the last minute, though Ozzie himself was a former professional ball player and thus worthy of being a celebrity boxer in his own right.If Canseco told the truth to the New York Post, it would not be the biggest surprise, as Feldman recently pleaded no contest to fight fixing and promoting fights without a license in Pennsylvania.
Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court. This article is also available on http://www.8countnews.com.
Posted By : Paul Stuart Haberman
Duke lacrosse lawsuits going forward, at least in part
Message posted on : 2011-04-01 - 15:49:00
Judge James Beaty of the United States District Court for the Middle District of North Carolina has denied, at least in part, the motions to dismiss in Evans v. City of Durham, the action by the three indicted Duke lacrosse players (they previously settled with Duke University) and the motions for summary judgment in Carrington v. Duke University, the actions by the 39 unindicted lacrosse players.
This is a shock, I must admit. These motions have been pending for almost two years now. And I--and Sam Kamin, who wrote a terrific essay on the constitutional claims for my book on the case--really believed that at least the constitutional claims were non-starters.
I will have more to say once I have a chance to read the lengthy opinions. Posted By : Howard Wasserman
Happy April Fool's Day
Message posted on : 2011-04-01 - 15:44:00
Since it's April 1, a number of hoaxes have emerged concening sports. None perhaps compares to the great Siddartha Finch hoax of 1985, which is still a subject of conversation today. Still, for your amusement only, some of today's hoaxlines:
As I keep an eye and ear toward that Great American Sports Law Extravaganza known as The United States of America v. Barry Bonds, I happen to also be reading that Great American Novel Moby Dick. Their similarities are remarkable.
Bonds, the all-time greatest in that most American of all sports, is that Great White Whale, larger than life, mysterious, unknowable, “all that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy . . . visibly personified, and made practically assailable.”
Jeff Novitzky, of course is Ahab. He has pursued Bonds for seven long years. The quest began with the former IRS agent trolling in the trash bins of BALCO, looking for scraps of paper to make his case. Ultimately, his mates at the prosecutor's office impaneled a grand jury at which Barry Bonds was called to testify and swore he did not know what BALCO products his trainer Greg Anderson had given him and that, to his recollection, no one other than a doctor had ever injected him with anything. Of the 42 counts in the indictment returned against BALCO's owner, Victor Conte, 40 were dismissed. In the end, Conte was convicted of money laundering about $400 and spent three months in a federal summer camp. Yet Novitzky and the prosecutors carried on, consumed and obsessed with Bonds. “They piled upon him the sum of all the general rage and hate felt from Adam down. . .” Towards Bonds they “roll, thou all-destroying but unconquering . . . to the last they grapple with thee; from hell's heart they stab at thee; for hate's sake they spit their last breath at thee,” and waste millions of tax-payer dollars.
What the judge and jury, presumably nay all San Francisco Giant fans, will make of this mad pursuit is not yet known. “Who's to doom, when the judge himself is dragged to the bar?” Posted By : Alan C. Milstein
5 Thoughts on David Ferrer's Infamous Lob and Losing One's Temper over a Crying Baby
Message posted on : 2011-04-01 - 09:00:00
28-year-old Spanish tennis player David Ferrer, who is ranked sixth on the ATP World Tour, became frustrated at a crying baby during the quarterfinals of the Sony Ericcson Open on Wednesday. Crowds in tennis matches are supposed to be quiet during play, but obviously -- and as we know from flying on air planes, eating out at restaurants, or attending religious services, among many other activities where we may encounter crying babies -- a baby doesn't have the same ability as an adult to "choose" to be quiet. And while we may become annoyed with a crying baby in a public setting -- or at least annoyed with the baby's parent/guardian -- we are generally supposed to accept the crying and not complain. Otherwise, we might look like jerks.
And yet during a tennis match, a crying baby is perhaps even more distracting than on a flight or at restaurant. Matches are played before thousands of people who become very quiet during match play. A baby crying loudly in this setting will stand out and likely annoy players on the court.
And annoyed is what happened to Ferrer on Wednesday. After he lost his serve to American Mardy Fish midway through the second set in the midst of the crying baby, Ferrer let his temper get to him and directed a forehand lob toward the crying baby:
Thankfully, the lob did not come close to hitting the baby, who nonetheless became quiet after the lob. Ferrer would go on to lose the match, 7-5, 6-2. Ferrer later blamed "indigestion" on the loss and did not address the lob.
I have 5 thoughts:
1) Tort Implications. If Ferrer's lob had hit the baby, he probably would have committed the tort of battery: intentionally causing harmful contact on another. If the man holding the baby was the baby's father (as has been reported), he may have also had a claim for negligent infliction of emotional distress because he would have witnessed the injury of his child and perhaps suffered emotional shock as a result. Even without hitting the baby, Ferrer may have committed assault - intentionally causing reasonable apprehension of imminent harm -- if the lob had come close to hitting the baby (assuming the baby knew what was going on).
2) Probably no Assumption of Risk. I don't think attendees of tennis matches assume the risk of tennis players intentionally hitting balls at them. Also, while tickets for admission to tennis matches probably contain various waivers of liability for the stadium operator -- just like tickets to baseball games contain waivers of liability if a fan is hit by a foul ball -- I'm not sure if those waivers extend to the players. And even if they do, I doubt they cover intentional torts committed by those players, especially since good players should be able to block out the noise.
3)
Unlike players employed by NFL/NBA/MLB/NHL teams, Ferrer's independent contractor status likely means he cannot be punished by the ATP Tour. Think about it: if Ferrer had been an NFL player who intentionally threw an object at a fan, commissioner Roger Goodell would be empowered to sanction him under the NFL's Personal Conduct Policy, as any behavior that the commissioner finds detrimental to the league is subject to discipline. And if the commissioner declined to act, the NFL team employing Ferrer could have take action against him.
But the ATP Tour doesn't work in the same way as the NFL or any pro league. It's an association of tennis players who are independent contractors and the individual tournaments they play in, as opposed to a league of competing teams and the players employed by those teams (see previous coverage on our blog regarding structure of ATP).
Still, individual tennis tournaments could decide to prohibit a player from playing in their tournaments. To illustrate, last year organizers of the Swedish Open thought about, but ultimately declined to prohibit two players who were arrested for soliciting prostitutes in Sweden. Given that no one was injured by Ferrer, it seems unlikely that any tournament would boycott Ferrer.
4) Parents bringing infants to tennis matches is not a good idea. A person attending a tennis match should know that people are expected to be quiet during match play. Bringing an infant to the match doesn't seem like a particularly good idea. Maybe it was not possible to get a baby-sitter, but it seems like the parent here was asking for trouble -- especially when he did not take his baby to another area of the stadium after the baby cried loudly, apparently for most of the match.
5) Why didn't an official from the stadium ask the father to go inside with his child for a bit? Sure, it's an awkward thing to ask of a parent, but if the baby was truly disrupting play, why not just politely ask the father to go inside until the baby stops crying? Refund the father's ticket if you have to. It seems like taking no action only made the situation here worse. Posted By : Michael McCann
New Sports Illustrated Column on Barry Bonds Trial: Has Bonds Already Won?
Message posted on : 2011-04-01 - 00:01:00
With the prosecution's case-in-chief nearly over, I have a new column for SI -- in it, I take a look at where things stand in the Bonds trial and what to expect going forward. Bonds should feel good about 4 of the 5 counts, but he's still very vulnerable to a conviction on Count Two. Here are excerpts from the column:
* * *
What worked for the prosecution?
1. Kathy Hoskins's believable recollection will help to prove Count Two
Kathy Hoskins, the former personal shopper of Bonds and the sister of Steve Hoskins, carefully explained how she watched Anderson inject Bonds in the navel during the 2002 season. She came across as believable, normal and someone with whom jurors could likely identify. Her memory also appeared strong, especially when she recalled specific comments purportedly made by Bonds. While prosecutors tried to link her with Steve Hoskins, whose business relationship with Bonds soured and who struggled on the stand earlier in the week, Kathy Hoskins emerged from cross examination as credible and without apparent ill-motive.
If the jury believes Kathy Hoskins with absolute certainty, it would be poised to find Bonds guilty on Count Two of the government's indictment. As explained in our previous coverage, Count Two simply requires prosecutors to prove that Bonds was injected by Anderson and that Bonds knowingly lied in 2003 when stating, under oath, that no such injection ever took place.
Then again, prosecutors were unable to corroborate Kathy Hoskins's testimony with other witnesses who could credibly claim they too saw Bonds injected by Anderson. Along those lines, some on the jury may be uncomfortable with finding Bonds guilty based on the testimony of just one witness, albeit a very believable one. They might also reason that Bonds could have simply -- to borrow a favorite word of fellow alleged perjurer Roger Clemens -- "misremembered" everything that Anderson did to him, including injections. Given that perjury requires that the defendant knowingly lied, as opposed to merely being mistaken or confused, any possibility of doubt would work to Bonds's defense.
* * *
What worked for the defense?
1. Steve Hoskins and Dr. Arthur Ting failed as witnesses for the prosecution
Though he initially seemed to possess intimate knowledge of Bonds' personal and professional life and though he portrayed Bonds as keenly interested in steroids, Steve Hoskins proved highly vulnerable under cross-examination, particularly in regards to his credibility and motivations. His rationale for secretly taping a conversation with Anderson drew intense fire, as Hoskins made the recording after Bonds had largely terminated his business relationship with him. Jurors will likely have doubts about relying on comments by Steve Hoskins to convict Bonds.
Ting proved to be the worst witness for the government, by far. For at least three reasons, Ting seemed more like a witness for the defense than for the prosecution:
he emphasized that he never spoke with Bonds about steroids; he highlighted non-steroid explanations for possible changes in Bonds' body; and he adamantly denied testimony by fellow prosecution witness Steve Hoskins, who had claimed that he and Ting discussed steroids. By the end of his testimony, Ting probably left jurors with serious doubts about the government's case against Bonds and about prosecutors' wisdom in calling him to the stand.
* * *
What to expect next week?
The prosecution is nearly finished and the defense will begin its case-in-chief on Monday. Expect three major defense strategies:
1. Refute Kathy Hoskins's assertion that Anderson injected Bonds
While the government struggled to show that Bonds knowingly lied under oath about steroids, it scored a victory in Kathy Hoskins's persuasive testimony. Keep in mind, if Bonds is convicted only on Count Two, he will still be a convicted felon and still face prison time.
Expect defense attorneys to portray Kathy Hoskins as linked more closely to her brother, Steve, than she led the court to believe. The stronger she is linked to her less credible brother, the more doubt the jury may have of her testimony. While the defense has to be careful to not so fervently slander Kathy Hoskins that it backfires -- and that she is called again to the stand -- it has to address her damming testimony.
ESPN is reporting that it has filed a lawsuit against Conference USA, accusing the conference of breach of contract. Specifically, ESPN alleges that the conference breached a 2005 agreement by failing to provide the network with an opportunity to match the $42 million television broadcast agreement that C-USA recently signed with the Fox network. ESPN is requesting either $21 million in damages, or specific performance of an alleged contract extension it asserts the parties had reached in principle prior to C-USA signing its deal with Fox. Meanwhile, C-USA denies that it breached any agreement with ESPN.
Posted By : Nathaniel Grow
Sports Law Blog on the Rise
Message posted on : 2011-03-31 - 08:31:00
Over on TaxProf Blog, Paul Caron has his annual traffic rankings for law professor blogs, and Sports Law Blog is #22 among them in terms of visitors and #23 in terms of page views. His numbers also show a 9% increase in visitors to our blog, and an 8% increase in page views on our blog, from 2009 to 2010. As always, we appreciate you checking our blog out and seeing what we have to say. Posted By : Michael McCann
New Sports Illustrated Video on Eller v. NFL
Message posted on : 2011-03-30 - 15:09:00
I was interviewed by Maggie Gray of Sports Illustrated/CNN video to discuss a new lawsuit filed by Carl Eller, Priest Holmes and others on behalf of retired and prospective NFL players. Their core argument is that the NFL lockout and various NFL restrictions on trade, including the draft, are illegal under federal antitrust law -- an argument also made in Brady v. NFL -- but unlike current NFL players, retired and prospective players are not members of the NFLPA bargaining unit. These players believe they too will be harmed by the lockout (for instance, various health-related programs for retired NFL players are funded in part by fines imposed on current players; with no football, no fines will be levied, and retired players' programs will lose funding). In response, the NFL will likely argue that while they are not bargaining members of the NFLPA, the NFLPA nonetheless represents their interests.
Posted By : Michael McCann
My interview for PBS Frontline on O'Bannon v. NCAA
Message posted on : 2011-03-29 - 21:30:00
Here's a link to a transcript of my interview with Lloyd Bergman of PBS. The transcript is admittedly long - the interview was for over an hour and we covered a TON of ground for PBS' March Madness and Money feature.
Here's an excerpt from the transcript:
PBS: How significant is this case?
McCann: It's a very significant case, particularly because it's past the motion-to-dismiss stage. A motion to dismiss is an argument by the defendant that, even if all of the facts are true, there's no viable legal claim. Well, the NCAA lost the motion to dismiss, and it's now going to trial. Normally, cases against the NCAA have not succeeded, either because of motions to dismiss or because they're settled. O'Bannon, though, seems to signal that he isn't going to settle, that he's actually going to go forward with this case, and he's going to try to win it.
And if he wins it, it would mean that retired players, including those who have been retired for a while, should be compensated for their use and image and likeness that the NCAA contracted away.
PBS: Well, you said something called the "right of publicity." What is that?
McCann: The right of publicity is that we have certain proprietary interests in our identity, that if somebody is going to try to make money off our image, our likeness, our name, that we should be compensated for that. Now, there are exceptions to that. There's a newsworthiness exception, for instance. If we're in the public news because of something we did or because we happen to be there, we're not going to be compensated. There's also an exception for parody. In other words, if we went on a television show and somebody parodied our appearance, we wouldn't be compensated for that.
But if somebody is just trying to make money off our image or likeness, we have a legal right, under state laws, to be compensated for that.
PBS: Let me put it a different way. O'Bannon, all the college athletes today, student-athletes, they all sign this form, right? And it's our understanding that this form has a clause in it that says you're signing away all your rights, basically, to the NCAA and to the school that you went to. So what's this litigation all about?
McCann: O'Bannon would argue that the Student-Athlete Statement, which, as you noted, Lowell, is required of students to sign if they want to play college sports -- students who may be 17 or 18 years old know that if they don't sign that statement, they will not be able to play sports. And if they can't play sports, they may not get their scholarship. And if they don't get their scholarship, they may not be able to afford school. So O'Bannon is saying, well, that's not really much of a choice, is it, because you're required to sign
this form.
Not only does it seem as if we don't have a choice, but the form itself shouldn't have the meaning that the NCAA seems to perceive. The form means that players give up their proprietary interest while they're in college, so the NCAA can use their likeness and image while they're in college to promote the NCAA and to promote the colleges that the players are associated with.
O'Bannon is saying, even if that's OK, which he doesn't seem to concede, but even if that's OK, it shouldn't continue after I've left school, because the NCAA, as it's argued, is concerned about the exploitation of student-athletes; that if they were to be able to do their own deals while in college, there would be charlatans who exploit players and the like. But O'Bannon is saying: "I'm 39 years old. Why is it that I need to be protected by the NCAA nearly 20 years after I played college basketball? I should have a right to get paid. That form shouldn't take the effect that the NCAA seems to interpret."
* * *
PBS: Yeah. But I mean, the players who make the money, because there's a very small group of players who bring in that revenue, right?
McCann: Sure. I think you could say that the superstar player generates a disproportionate share of the fan's interest of the commercialization of sports. When O.J. Mayo plays one year [of basketball] at the University of Southern California, and he's put on the cover of the brochure, and he's highlighted, he clearly is generating revenue for the University of Southern California. This is somebody who is attracting renewed interest in a program that had not attracted a lot of interest in years prior.
I don't know if the 11th and 12th persons on the bench are generating that same value. They're clearly not. You know, the random offensive linemen on a top college football team, whom we don't know the name of, how much value is that player contributing? Well, in the sense that he's playing on a team that's doing really well, he's contributing value. But independently, how much value is he contributing? I think that's a harder call. And I think that's what is going to make compensating athletes a difficult challenge, certainly not an impossible challenge, but it's figuring out who gets what ... If it were a professional league, then we would know what they get, because there's a market for services.
* * *
PBS: But this is the only country that I know of that has sports teams associated with universities and institutions of higher learning in a billion-dollar industry, and is tied that way. I mean, this is a pretty unusual situation, isn't it?
McCann: It is, and in other countries, for instance in Europe, we don't see the same college sports system. We see a professionalization of youth sports. We see if you're a 13- or 14-year-old star basketball player, you don't have to wait until you're 19 years old and one year removed from high school to play in the NBA. You can sell your services as a teenager and make money at that point, or you can join some other kind of pro league in another part of the world.
Only in the United States do we have this very extensive and popular system of college sports that has had the effect of reducing the compensation and, in some cases, eliminating compensation for those who are playing the sports. When you couple that with age restrictions in order to enter the NFL and the NBA -- and, of course, in college sports, at least 90 percent of the revenue is generated by football and men's basketball -- then you could see a real injustice.
You have players who can't turn pro because of an age restriction. Then they have to go to college, if you will, to play maybe for a school that they have no interest [in] being a student at. Where do they go? Well, they can go to Europe if
they're a basketball player, perhaps, but not many have done so. They're in a difficult situation. I think the ones who are generating so much of the wealth, the star players, are the ones who are so clearly disadvantaged by this system.
PBS: So it's an antitrust case.
McCann: It is an antitrust case, because the current system is set up in a way that boycotts players who would otherwise be commercially viable from being able to use their services. And that, arguably, makes the market less competitive.
Now, the question is, who gets sued there? Do you sue the professional sports leagues and the players' associations that have created barriers to entry? Well, that's been done in the past. The difficulty is that courts say, if the owners and the players get together and negotiate a rule, it's largely immune from federal antitrust law. And of course, you could say, well, that doesn't seem fair, because the players' association is looking out for current players. Why should they create a barrier that prevents prospective players from entering the league, because if they could enter, they're going to take jobs away from the 12th guy on the bench. That doesn't seem like a fair system. But that's how federal labor and antitrust laws are set up. Current employees can negotiate on behalf of prospective employees. It may seem fair in some contexts, but I think in professional sports it really isn't.
2) Tomorrow night at 10 p.m. HBO Real Sports will air a 1-hour feature on College Sports in America (Part I can be seen here; Part II here). Here is more info on the HBO feature:
Two long-form segments anchor the program, setting the stage for an extended roundtable panel hosted by Bryant Gumbel and featuring former University of Michigan head football coach Rich Rodriguez, outspoken college basketball commentator Billy Packer and print journalist Jason Whitlock of FoxSports.com. The group will address a host of issues relating to the NCAA and the regulation of its 1,055 member schools.
Segments include: *The Money Trail. Every year, thousands of talented young student-athletes sign letters of intent and obtain full-ride athletic scholarships (tuition and board) from the biggest, wealthiest programs in America, effectively giving up all rights to revenue generated by their participation, including TV rights fees, merchandising and ticket sales. But with a dramatic increase in revenue from top programs and athletes' growing awareness of their contribution, many are starting to ask if there should be financial compensation. REAL SPORTS correspondent Bernard Goldberg examines the notion of student-athletes remaining untainted amateurs while generating pro-type revenue for their schools. Are they getting a fair shake?
*Pay to Play. Should athletes at Division I programs be financially compensated? And would that curb the headline-grabbing stories of inappropriate payments and benefits? More and more standout athletes in top programs are seemingly putting their education on the back burner to focus on what's really important – the money. Those destined for the NBA and NFL face the moral dilemma of dealing with “advisors” and “street agents” who can deliver the funds and material items they desire while in school in exchange for a promise of future reciprocation when they reach the pros. REAL SPORTS correspondent Andrea Kremer delves into the controversial and complex subject of premium college-bound athletes receiving benefits that are prohibited by the NCAA.
Posted By : Michael McCann
New sports law scholarship
Message posted on : 2011-03-29 - 09:39:00
Recently published scholarship includes:
Rachel Blumenfeld, Dog baiting abatement: using nuisance abatement to regulate dogfighting, 17 SPORTS LAWYERS JOURNAL 1 (2010)
Victor S. Broccoli, Williams v. NFL: the Eighth Circuit flags the NFL for interference with state drug testing laws, 17 SPORTS LAWYERS JOURNAL 283 (2010)
Bradley R. Bultman, Comment, Drafted player compensation: incorrectly hidden in the afternoon shadow of the nonstatutory labor exemption, 11 FLORDIA COASTAL LAW REVIEW 687 (2010)
Ashlee A. Cassman, Bring it on! Cheerleading vs. Title IX: could cheerleading ever be considered an athletic opportunity under Title IX, and if so, what implications would that have on university compliance?, 17 SPORTS LAWYERS JOURNAL 245 (2010)
Sonali Chitre, Technology and copyright law—illuminating the NFL's ‘blackout' rule in game broadcasting, 33 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 97 (2010)
Marielle Elisabet Dirkx, Comment, Calling an audible: the Equal Protection Clause, cross-over cases, and the need to change Title IX regulations, 80 MISSISSIPPI LAW JOURNAL 411 (2010)
Nathaniel Grow, Defining the “business of baseball”: a proposed framework for determining the scope of professional baseball's antitrust exemption, 44 UC DAVIS LAW REVIEW 557 (2010)
Benjamin B. Hanson, Comment, Defend the Williams Wall, leave professional sports drug testing policies in shambles: the decision and consequences of Williams v. NFL, 33 HAMLINE LAW REVIEW 327 (2010)
Casinova O. Henderson, How much discretion is too much for the NFL Commissioner to have over the players' off-the-field conduct?, 17 SPORTS LAWYERS JOURNAL 167 (2010)
Robert S. Jeffrey, Note, Beyond the hype: the legal and practical consequences of American Needle, 11 FLORIDA COASTAL LAW REVIEW 667 (2010)
Brandon Johansson, Note, Pause the game: are video game producers punting away the publicity rights of retired athletes?, 10 NEVADA LAW JOURNAL 784 (2010)
Richard G. Johnson,
Submarining due process: how the NCAA uses its restitution rule to deprive college athletes of their right of access to the courts...until Oliver v. NCAA, 11 FLORIDA COASTAL LAW REVIEW 459 (2010)
Michael Kim, Mixed martial arts: the evolution of a combat sport and its laws and regulations, 17 SPORTS LAWYERS JOURNAL 49 (2010)
Camalla M. Kimbrough, Comment, Upon further review: how the NFL's exclusive licensing agreement with Reebok survives antitrust scrutiny despite the League's flawed single-entity defense, 13 TULANE JOURNAL OF TECHNOLOGY & INTELLECTUAL PROPERTY 235 (2010)
Jeffrey F. Levine & Bram A. Maravent, Fumbling away the season: will the expiration of the NFL-NFLPA CBA result in the loss of the 2011 season?, 20 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1419 (2010)
Joseph A. Litman, Note, Tremendous upside potential: how a high-school basketball player might challenge the National Basketball Association's eligibility requirements, 88 WASHINGTON UNIVERSITY LAW REVIEW 261 (2010)
Robert A. McCormick & Amy Christian McCormick, A trail of tears: the exploitation of the college athlete, 11 FLORIDA COASTAL LAW REVIEW 639 (2010)
Frank P. McQuillan, Minnesota's miracle...on ice: the transfer-mation of student-athletes into free agents, 17 SPORTS LAWYERS JOURNAL 135 (2010)
Brandon D. Morgan, Oliver v. NCAA: NCAA's no agent rule called out, but remains safe, 17 SPORTS LAWYERS JOURNAL 303 (2010)
Anna Peterson, Comment, But she doesn't run like a girl...: the ethic of fair play and the flexibility of the binary conception of sex, 19 TULANE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 315 (2010)
Adam Primm, Salary arbitration induced settlement in Major League Baseball: the new trend, 17 SPORTS LAWYERS JOURNAL 73 (2010)
J. Chadwick Schnee, Wrestling with retaliation: pinning down the Burlington “dissuading” standard under Title IX, 17 SPORTS LAWYERS JOURNAL 223 (2010)
Aaron Shepard, Note, Football's stormy future: forecasting the upcoming National Football League labor negotiations, 33 COLUMBIA JOURNAL OF LAW & ARTS 527 (2010)
Patrick Donohue Sheridan, An Olympic solution to ambush marketing: how the London Olympics show the way to more effective trademark law, 17 SPORTS LAWYERS JOURNAL 27 (2010)
Brett T. Smith, The tax-exempt status of the NCAA: has the IRS fumbled the ball?, 17 SPORTS LAWYERS JOURNAL 117 (2010)
Jeffrey J.R. Sundram, Comment, The downside of success: how increased commercialism could cost the NCAA its biggest antitrust defense, 85 TULANE LAW REVIEW 543 (2010)
Robert J. Thorpe, Way out in left field: Crespin v. Albuquerque Baseball Club rejects nearly one hundred years of American jurisprudence by declining to adopt the baseball rule in New Mexico, 17 SPORTS LAWYERS JOURNAL 267 (2010)
MIT Sloan Sports Analytics Panel on "The Coming War: Sports Labor Relations"
Message posted on : 2011-03-27 - 09:00:00
Earlier, this month I joined several panelists -- Russ Granik (former NBA Deputy Commissioner), Tom Penn (ESPN analyst and former Blazers Assistant GM), George Postolos (former President and CEO of the Rockets), and Andrew Zimbalist (noted sports economist at Smith College) - at the 2011 MIT Sloan Sports Analytics conference to discuss labor wars in the NBA and NFL. The panel was moderated by Jackie MacMullan, an ESPN columnist and author of several books, including a forthcoming one on Shaquille O'Neal.
Here is the video of our panel discussion:
Posted By : Michael McCann
Dr. John Carlos to Speak at the West Virginia University College of Law
Message posted on : 2011-03-25 - 21:00:00
Dr. John Carlos, who along with Olympic teammate Tommie Smith were criticized for protesting on the medal stand at the 1968 Mexico City Games, will discuss the evolving role of African American athletes in American culture and politics in a speech sponsored by the West Virginia UniversityCollege of LawSports and Entertainment Law Society.
Carlos will speak at noon on Thursday, March 31, 2011 at the Marlyn E. Lugar Courtroom in the WVU Law Center.
Specifically, Dr. Carlos will discuss the national platform athletes are given, as the American public has become more and more enthralled in the commercialized sports industries. He will discuss how and if African American athletes utilize this platform as he and Smith did in 1968. Carlos won the bronze medal in the 200-meter dash behind Smith and Australian Peter Norman. While receiving their medals, Smith and Carlos raised gloved fists as a silent protest of racism and economic depression among oppressed people in America. In response, International Olympic Committee president Avery Brundage banned the two men from the Olympic Village and forced them from the United States Olympic team. Carlos and Smith were embattled for years following their bold and meaningful protest.
Although legal disputes involving boxing do not occupy a large portion of my class time, there have been cases, notably involving breaches of contracts among boxers and promoters, that make for interesting reading and discussion. I use one or two to prove breach, damages and remedies. One of my favorites is Lewis v. Rahman, a courtroom brawl (if you will) that involved heavyweights Lennox Lewis and Hasim Rahman, where the court enjoin Rahman from engaging in any other fights over a 18-month period under he fight Lewis for the championship. For those teaching, it merits discussion of the outer limits of a "negative" injunction.
Here's another potential case. One of my MBA students pointed to potential controversy involving the promoters Top Rank (of Bob Arum fame) and Golden Boy Promotions (founded by Oscar de la Hoya about 10 year ago). The dispute involves the signing of highly-touted Philippine bantamweight champion Nonito Donaire by Golden Boy this week. Reports state that Golden Boy offered Donaire a bigger purse for an upcoming fight for the WBA bantamweight championship. However, Top Rank claimed he is presently under contract and is considering legal action.
According to the article, the issue involves the expiration date of Donaire's present contract with Top Rank. Signed in June 2008, it would normally expires this June, but Top Rank is claiming that the expiration date tolled due to two "medical suspensions" of six and four months of Donaire during the contract period. Top Rank was quoted as saying that such a tolling provision was in Donaire's contract.
The stakes are high because Donaire already won the bantamweight championship of two of boxing's myriad governing bodies last month, the World Boxing Council and World Boxing Organization, raising his profile and market value. Yet, the case is reminiscent of a similar dispute about five years between the same parties of the fate of another Philippine boxer, Manny Pacquiao. That case was settled by arbitration in 2007, although there is subsequent litigation over claims that Top Rank underpaid Pacquiao.
The Donaire - Top Rank dispute will also likely go to arbitration. Issues would involve the meaning of a "medical suspension," whether Donaire's injury constituted such a suspension (difficult to prove to the contrary since he was suspended by one or more boxing bodies) and what remedy or remedies may apply if the arbitrator concludes a breach occurred.
Since both contracts are promising to arrange the same bout, injunction is not a practical remedy. But, just to hypothesize, what is the Golden Boy deal offered a different fight in June? Would Donaire be determined "unique" to stop him from boxing? My guess would be yes -- as a boxing champion and a potential moneymaker.
[Thanks to Hermogenes Perez for alerting me to the case] Posted By : Mark Conrad
2011 Southwestern Law School Sports Law Symposium
Message posted on : 2011-03-24 - 10:21:00
Darren Heitner has the story over on Sports Agent Blog (one of my favorite blogs, by the way) on this excellent upcoming symposium at Southewestern Law School in Los Angeles. Sports Law Blog contributor Warren Zola is one of the panelists and there are many other great panelists, too:
* * *
What: Business of Amateur Sports Symposium at Southwestern Law School
The Business of Amateur Sports is a one-day symposium featuring leading experts exploring some of the most timely and important questions facing collegiate sports today: regulation of agents and discipline of student athletes; the latest medical science on sports-related concussions, and how it may impact safety rules and legal liability; media deals and marketing in college sports, including the use of student-athlete names and likenesses; and the federal antitrust implications of college football's Bowl Championship Series.
Schedule
9:15 - 10:00 a.m.: Check-in/Coffee
10:00 - 11:30 a.m.: Pre-Professional Athletes in an Amateur World: NCAA Rules, State Laws, Agents and Extra Benefits
Bob Myers, NBA Agent, Wasserman Media Group
Warren K. Zola, Assistant Dean for Graduate Programs, Boston College's Carroll School of Management
Marc Isenberg, Principal, INsight Sports Business and Author, Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes and Go Pro Like A Pro
Moderator: Darren Heitner, CEO, Dynasty Athlete Representation and Associate, Koch Parafinczuk & Wolf
11:30 - 11:45 a.m.: Break
11:45 a.m. - 12:45 p.m.: Concussions, Law and Amateur Sports: Implications of Emerging Medical Science for the Regulation of Student Athlete Safety
Dr. Jason P. Mihalik, Assistant Professor, Department of Exercise and Sport Science, University of North Carolina at Chapel Hill
Daniel E. Lazaroff, Director, Loyola Law Sports Institute, Professor of Law and Leonard Cohen Chair in Law and Economics, Loyola Law School
Moderator: David Fagundes, Associate Professor of Law, Southwestern Law School
1:00 - 2:30 p.m.: Lunch and Special Guest Conversation
Jim Harrick, Former NCAA Basketball Head Coach and Broadcaster, in conversation with Jeff Fellenzer, Adjunct Professor, USC's Annenberg School for Communication & Journalism
2:45 - 4:15 p.m.: Big Brands and Bigger Budgets: Marketing, Merchandising and Media Rights in College Sports
Alonzo (“Al”) Wickers, IV, Partner, Davis Wright Tremaine
Stuart M. Paynter, The Paynter Law Firm
Jeremy Langer, Vice President Collegiate Sports and Rights Acquisitions, Fox Sports
Moderator: Debbie Spander, Vice President, Business Affairs, MTV Entertainment and Director, Sports Lawyers Association
4:15 - 4:30 p.m.: Break
4:30 - 5:30 p.m.: The BCS and Competition: An Antitrust Analysis of College Football's Bowl Championship Series
Gary R. Roberts, Dean and Gerald L. Bepko Professor of Law, Indiana University School of Law – Indianapolis
Alan G. Fishel, Partner, Arent Fox
William
(“Tripp”) L. Monts, III, Partner, Hogan Lovells
Moderator: Vered Yakovee, Law Offices of Vered N. Yakovee and Adjunct Associate Professor of Law, Southwestern Law School
Join us for an evening with a distinguished group of sports law industry professionals.
Monday, March 28th, 7pm - 9pm Rutgers School of Law Camden Rutgers Camden Campus Center – Multi Purpose Room 326 Penn Street, Camden NJ
Prior to the panel, all guests are invited to attend a reception and dedication of the Clark Commons at 5:30 pm on the law school Bridge (the Clark Commons).
Panelists include:
George Atallah NFL Players Association Assistant Executive Director of External Affairs
Domonique Foxworth Baltimore Ravens, NFL Players Association Executive Committee Member
James Ivler Registered NFL Agent, Sportstars, Inc.
Adam Taliaferro Associate at Duane Morris, former Penn State football player
Please RSVP to Terry Moffett (tmoffett@camden.rutgers.edu or 856.225.6430).
Sponsored by the Rutgers School of Law Camden Sports & Entertainment Law Society, Rutgers Camden Law Recent Graduate Council, the Rutgers School of Law Camden Office of Career Planning and the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association.
Posted By : Michael McCann
On Creeping Underwear, Drooping Pants, and the NFL Personal Conduct Policy during the Lockout
Message posted on : 2011-03-23 - 09:30:00
Dress codes often generate controversy. Consider the debate following the NBA adopting an off-court dress code 5 years ago. Dress codes attract critique because they normally limit attire choices to those considered mainstream, while disallowing dissenting styles, typically on grounds that unconventional attire can be "unprofessional" or "inappropriate." From time-to-time, dress codes have also been viewed as insensitive to various race, ethnic, gender, and religious concerns. Nonetheless, dress codes are usually legal, and that is true of those imposed by malls, which want to ensure a positive shopping experience for customers.
Would a rule that doesn't let a mall patron show his/her underwear be a rule that you support or find offensive? Count me in the support category.
Dallas Cowboys wide receiver Dez Bryant may not agree. He learned about such a rule this past weekend when he and three friends were kicked out of NorthPark Center, an upscale Dallas shopping mall.
Their mistake? Wearing "drooping pants", which apparently is another description of sagging pants, the effect of which is to expose one's underwear, a violation of the mall dress code. To compound Bryant's problem, he got into an argument with police officers who were working off-duty as security officers at the mall and was issued a criminal trespass warning:
According to the official police report, Bryant and three friends were stopped by the uniformed, off-duty officers working security shortly before 8 p.m. at the popular shopping center after they were observed "wearing their pants halfway down their hips exposing their underwear."
The police asked the men to pull their pants up.
"Mr. Bryant's response to the request was profanity laced and [NorthPark] center representatives felt the outburst merited a request for Mr. Bryant to leave the premises," according to a Dallas police statement issued Tuesday evening.
"What the [expletive] are you stopping me, like I stole something," Bryant was quoted as saying by a News 8 source. "I'm not leaving until my attorney and my representative get here."
Police said Bryant continued cursing as the off-duty officers escorted him to his vehicle.
"Mr. Bryant entered his vehicle but parked in a fire lane still refusing to leave, necessitating a request for on-duty officers to respond to the location," the Dallas police statement said.
While the facts of the incident are in question, the incident is clearly embarrassing for Bryant and the Cowboys, and maybe the NFL, too. And under the NFL's Personal Conduct Policy, commissioner Roger Goodell can issue a sanction for any behavior that he deems detrimental to the league's image.
But is the league's personal conduct policy still in effect during the lockout? The league says yes and that it will assign penalties for misbehavior during the lockout after the lockout ends. The NFLPA has chosen not to opine on whether the policy is still in effect.
I'm not sure the league is right. During a lockout, a player is completely separated from his employment with the team and the league as a whole - and, unlike with a player strike, the only way for that separation to end is for the league to end the lockout. The player can sign with a team in another pro football league or take on some other employment; he's not getting paid any salary or receiving any benefits from his NFL team, so why should he be obligated to follow the NFL's personal conduct policy? Posted By : Michael McCann
How I got into sports law and the NFL Lockout
Message posted on : 2011-03-22 - 14:47:00
Jared Pendak of the Valley News (serving Hanover New Hampshire and surrounding community) interviews me about how I got into sports law and also about the NFL lockout. Here's an excerpt:
Valley News: Overall, how much leverage do you feel like the players have?
Michael McCann: I think they have a lot of leverage until they start missing game checks. When the fall comes, if they're not getting paid their normal salaries like they would during the season, it will be interesting to see how unified they are. Right now, they're unified in the offseason, but when the game checks are missed, the players will be relying on $60,000 lockout insurance from the Players Association. For us, that sounds good, but if you're making $1.9 million, which is the average salary in the NFL, I don't know how that's gong to play out. Will players have enough savings?
They've been encouraged to save, particularly during the last several years with the future of the CBA unclear, but I think a lot of players live lifestyles that are very expensive and don't lend themselves to going a long stretch of time without getting paid.
Owners generally have the leverage there, because they have more wealth, their pockets are deeper and they have other businesses that generate income for them. Some of the owners would suffer, yes, especially the ones who need to pay off debt for their stadiums, but the owners generally are more equipped to withstand a long period of no football than the players.
To read the rest, click here. Posted By : Michael McCann
Legality of NFL Lockout
Message posted on : 2011-03-22 - 11:27:00
Posted By : Michael McCann
Barry Bonds Trial Begins
Message posted on : 2011-03-21 - 10:53:00
Jury selection in the Barry Bonds perjury trial takes place today, with opening statements by the prosecution and defense set for tomorrow. I discuss the trial with NPR today on the Morning Edition program.
This is the first post in a series of posts that will review of legal, regulatory, and contractual Issues in Boxing and MMA from the past several months. These posts are largely taken from a longer article I wrote for 8 Count News.
Could Tyson Get Crapped on for Keeping Pigeons in New York?
In honor of the debut of Animal Planet's “Taking on Tyson,”I took a moment to research whether it is illegal to raise pigeons in New York, Mike Tyson's home state. The answer, in short, is no, unless he does so without a permit or in contravention of local law, or the government or administrative body in question finds the subject pigeon coop to be a “menace to public health” or a “public nuisance.”Pigeons are also not permitted to be taken “in a manner which will endanger other animal life, persons or property.”As far as other legal rights and issues facing “Taking on Tyson,” PETA has, of course, exercised its rights under the First Amendment to oppose the show since they believe that Tyson's housing of pigeons and use of them for sport constitutes cruelty to animals. This author, for one, would not want to be the person to throw animal's blood on Tyson in any protest.
Not Everything is Coming Up Sweet for “Kid Cinnamon” This Year
He might have laid waste to Matthew (Magic) Hatton this past weekend, but there is one opponent on the horizon that may score a knockout over surging junior middleweight contender Saul (Canelo) Alvarez:All- Star Boxing.Back in late January, All-Star Boxing filed a lawsuit against Canelo (Spanish for “cinnamon tree”) and his promoter, Golden Boy Promotions, in Florida alleging breach of contract as to Alvarez and tortious interference in contractual relations against Golden Boy.Here's assuming that Golden Boy will find some sugar to sprinkle on All-Star Boxing (or bury it in dispositive motion papers) to make sure that Canelo will be free and clear to add a jolt of flavor to their events for many years to come.
Daniel Podiatrist de Leon?
The co-main event of Alvarez-Hatton featured one of the more novel corner instructions that the author can recall: step on his foot.As translated by HBO, that is exactly what Daniel Ponce de Leon was told to do early in his mysteriously unsuccessful bout against undefeated super featherweight prospect Adrien (The Problem) Broner.And that is exactly what Ponce de Leon did, quite conspicuously, over the next several rounds. Should the referee have admonished Ponce de Leon, or have taken away a point for his repeatedly stepping on, or trying to step on, Broner's foot? Under New York law at least, deliberately stepping on your opponent's feet is not listed as either a major or a minor foul.Stomp on then, young warriors!
Michigan Leaves No Room for Mishegas in its Enforcement of Its MMA Regulations
Michigan, which began regulating mixed martial arts last year, made headlines back in late January when it was reported that it has now filed its inaugural complaint for violations of its new regulations.The respondent to this complaint was Stephen George Daher, a licensed timekeeper in the employ of the Michigan Unarmed Combat Commission, who was accused of not timely stopping the first round of the middleweight bout between Maiquel Falcao and Gerald Harris during UFC 123. The author will keep an eye on this matter to see if Michigan gets to successfully send a message to stay in strict compliance with its new rules.
Will 2011 Be the Year That Jack Johnson Scores His Final Knockout?
Arizona Senator John McCain and New York Representative Peter King announced recently that they plan to reintroduce a Congressional resolution urging a pardon of former heavyweight champion Jack Johnson, who was convicted in 1913 of violating the Mann Act for allegedly transporting a woman across state lines for immoral purposes by an all-white jury.A racially polarizing case for generations and blot on the history of the American jury system, here's hoping the resolution finally passes after several previous efforts and President Barack Obama, the first African-American president, takes the opportunity to pardon Johnson, the first African-American to win world heavyweight championship.
Posted By : Paul Stuart Haberman
Haberman Post 2
Message posted on : 2011-03-20 - 10:53:00
Santore Gets Frank with Norwood Over Rabbit Punch
Freddie Norwood, no stranger to unusual refereeing, lost two points as the result of a seemingly intentional rabbit punch in the ninth round of his bout with junior welterweight contender “Sugar” Ray Narh on ESPN2 Friday Night Fights this past week. Why two points? Well, as referee Frank Santore, Jr. barked at him, because he was a veteran and should have known better. Should veterans be held to a higher standard in boxing? Maybe so, especially as a few of them, including Joel Casamayor, Evander Holyfield, and Bernard Hopkins, are recognized as some of the best subtle employers of foul tactics in the game. Regardless, the two point deduction was the latest chapter in Norwood's suspect treatment by referees. One of the most awful stoppages the author ever recalls seeing in the history of boxing is Derrick (Smoke) Gainer's 11th round TKO of Norwood for the WBA Featherweight Title on September 9, 2000. What made the stoppage so awful? Referee Paul Sita was holding Norwood from behind at some point during the final sequence, rendering him unable to defend himself or punch back at Gainer.
Long Count Hinders Sillakh From Bringing the Despaigne: In the main event of the same card that gave us Norwood's veteran penalty, rising light heavyweight contender Ismayl Silakh, 15-0 (12 KOs), may have missed his chance to stop undefeated Cuban Yordanis Despaigne, now 8-1 (4 KOs), in the second round of their bout because, in contravention of one of boxing's oldest rules, the excited Silakh failed to timely go to a neutral corner. Silakh's overzealousness may have cost him the knockout, as Despaigne ultimately had several additional seconds to recover, but did not cost him the fight, as he went on to score a well-earned unanimous decision. One further note on this the Silakh-Despaigne fight; when was the last time you saw a boxer with only eight professional bouts have as many sponsors on his trunks as Despaigne? Managers take note, Team Despaigne is apparently doing something right, even if matching him with Silakh did not turn out to be the wisest move.
The Quebecois Decide Not to Play Roulette: The Quebec Boxing and Gaming Commission kept its credibility intact in its local golden era of boxing by benching heavyweight contender Tommy (The Duke) Morrison after he refused to submit to HIV and hepatitis testing in advance of his scheduled February 25, 2011 bout with journeyman Erik Barrak. Barrak instead went on to knock out former Morrison victim Matt Weishaar, a late replacement, in the first round. For more on the controversy leading up to Barrak's knockout, please go to: http://www.8countnews.com/news/125/ARTICLE/3250/2011-01-25.html.
Recent Battle of the Bulge Reveals Another Alternative to Making Weight: Many times, if a boxer's opponent fails to make weight, he is fined and the fight goes on. Such was the case this past weekend, when hot junior middleweight contender Saul (Canelo) Alvarez came in 1.8 pounds overweight and wound up giving his soon-to-be whipping post Matthew (Magic) Hatton and the California State Athletic Commission $35,000 a piece for his failure at the scales. But what happens when both boxers come in overweight? Well, one option is to pretend like nothing happened and go on
with the fight. Such was the case on February 25, 2011 when former IBF Minimumweight Champion Roberto (Mako) Leyva took on South African prospect Simpiwe Vetyeka in a bantamweight match in which neither made weight on ESPN2's Friday Night Fights. Leyva might have learned his lesson about coming in heavy even without a monetary fine another way, however, as Vetyeka stopped him with a shot to his doughier-than-contracted-for body in the third round.
La Heina Facing Yet Another Matter Not Worthy of Laughter: It was reported earlier this week that the entertaining, but troubled, former WBO Super-Featherweight Champion Jorge Rodrigo (La Heina) Barrios was arrested for beating and sexually assaulting a 29-year-old woman in his native Argentina. Barrios still has legal actions pending against him related to both a January 2010 car accident which resulted in the death of a pregnant woman, and the alleged Christmastime beating of his son. If Barrios currently has a promoter, manager, or sponsor, it would not surprise the author to find out that they are looking for ways out of their agreements with the troubled boxer as we speak.
IsGuzman's Career Down for the Count Following Three Out-of-the-Ring Knockdowns?: It was reported back in January that former two-division world champion Joan Guzman was suspended, fined, and released from his promotional agreement with Golden Boy Promotions after testing positive for Furosemide, a diuretic banned by the Nevada State Athletic Commission, following his second round knockout of Jason Davis on December 11, 2010. Guzman's release by Golden Boy was the well-deserved culmination of a recent history of infractions that have plagued Guzman's career. Does this latest series of setbacks spell the end for him though? Don't bet on it, as Guzman can always retreat to his native Dominican Republic where, as a free agent, he could theoretically be licensed to box, as his homeland need not recognize Nevada's suspension.
Briggs' Lawsuit Against Empire Sports & Entertainment Provides for a Nice Hypothetical for First Year Contract Law Students: Long-time heavyweight contender Shannon Briggs, only a few months displaced from his shellacking against Vitali Klitschko, filed a lawsuit in January against his management/ promotional company Empire Sports & Entertainment and its officers on a variety of grounds, including their alleged failure to pay him the $750,000 that he was orally promised for the Klitschko bout. While the author has reviewed the complaint, and finds some causes of action more plausible than others, a word to the wise when negotiating boxing matches both big and small: Get the full purse value in writing before you go in the ring. Briggs' contract for the Klitschko bout allegedly stated that he was to only receive $100,000. With $650,000 more purportedly in the hopper, it was likely not the best decision Briggs ever made to not compel Empire to reduce his full compensation to writing. A bottom 10% student who has completed a single year of education at one of nation's worst law schools knows better than to accept and rely on anyone's oral changes to an agreement. Perhaps Briggs does now too.
Duel of the Iron Mikes? Law Student Lesson # 2: 1980s journeyman junior middleweight contender “Iron” Mike Landrum, 0-2 (0 KOs), recently filed a trademark infringement
lawsuit against the slightly more accomplished “Iron” Mike Tyson, 50-6 (44 KOs), for allegedly stealing his nickname. Lesson number two for law students reading the column today: the standard by which trademark infringement claims are evaluated is “likelihood of confusion,” or how likely the “consuming public will likely be confused or mistaken about the source of a product or service sold using the mark in question (seehttp://marklaw.com/trademark-glossary/confuse.htm).” Now ask yourselves, how likely is it that anyone who knows anything about boxing would confuse these two individuals with each other because of their nickname? FYI, Boxrec.com does not even reflect that Landrum used the “Iron” moniker.
Debuting Heavyweight Perishes in Arkansas: The boxing world was rocked on January 29, 2011 by the untimely death of debuting heavyweight Anthony Jones following his second round knockout loss to Quincey Palmer in Arkansas. While the commissioner was reportedly at ringside, proper procedures were allegedly followed, and Jones was examined by a ringside physician before entering the ring, the author will keep an eye on this matter to see if a lawsuit is ultimately filed against the Arkansas Athletic Commission and/or its ringside physicians alleging negligence or medical malpractice. In the meantime, rest in peace young warrior, we appreciate your brief entrance into the sweepstakes to find America's next great heavyweight. Here's hoping other young American heavyweight hopefuls, such as Deontay Wilder, Seth Mitchell, and Maurice Byarm, carry on proudly in your absence.
BBBC Declines to Do Any Hustlin' for Ruslan: It was reported by Boxing Scene.com back in January that the British Boxing Board of Control advised that it would not approve WBA Heavyweight Champion David (Hayemaker) Haye's mandatory challenger Ruslan Chagaev due to his history of hepatitis B. Although the article breaking the story suggested that the situation was problematic for Haye, who is reportedly just signed to face Wladimir Klitschko, it is also quite problematic for Chagaev, as other governing bodies and athletic commissions could adopt the BBBC's position and opt not to license him going forward. For more on the potential implications of recent problems facing internationally-based boxers, please see: http://www.8countnews.com/news/125/ARTICLE/3200/2011-01-12.html.
BBBC Decides Not to Use the Force on A-Force: The same week that it was reported the BBBC slammed the door on David Haye's prospective future opponent Ruslan Chagaev, it also decided that it would let his most recent opponent off the hook. Following an investigation of his apparent non-effort against Haye on November 13, 2010, the BBBC decided to give former Olympic gold medalist Audley (A-Force) Harrison his entire £ 1.5 million purse. Harrison apparently offered a reasonable explanation for his showing that the BBBC accepted in reaching their decision. The boxing public will probably not prove as forgiving to Harrison going forward. For more on Harrison's recent image troubles, please see this link.
Posted By : Michael McCann
Ranking college sports loyalties
Message posted on : 2011-03-18 - 17:25:00
My Prawfs co-blawger Matt Bodie offers a ranking of college sports loyalties--covering everything from undergrad institution to law school to current employer to spouse's teams to hometown team. Offer your comments here or at Matt's post. Posted By : Howard Wasserman
2011 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition
Message posted on : 2011-03-18 - 15:00:00
Congratulations to the all of the participants in the 2011 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras. Special thanks to Mary Jones and the Tulane Moot Court and Diana Taylor and the members of the Sports Lawyers Journal for the help in putting together the competition. Thanks also to Stan Kasten for serving as our celebrity guest judge in the finals.
Finally, congratulations to the winners of this year's competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:
The Winner of the 2010 Competition was: Florida Coastal School of Law (Drew Parrish-Bennett and Dazi Lenoir Williams)
The Runner-Up: Loyola New Orleans (Matt Cutrer and Luke Larocca)
Semi-finalists: Southwestern School of Law and Emory Law School
The best brief was submitted by: University of Arizona College of Law.
Best Oralist: Sarah Gale-Barbantini (Wayne State University Law School)
2nd Best Oralist: Drew Parrish-Bennett (Florida Coastal School of Law)
3rd Best Oralist: Mark Ellinghouse (UC Davis School of Law)
Competitor of the Year: Drew Parrish-Bennett from Florida Coastal
Posted By : Gabe Feldman
2011 Yale Law School Panel on Sports and the Law: Current Issues
Message posted on : 2011-03-17 - 17:00:00
On Monday, April 4, from 6:30 to 8:00 p.m., the Yale Law School Sports and Entertainment Law Society will be hosting a panel on contemporary sports law issues. The panel will be open to the public.
Topics will include the NFL lockout, the possible NBA lockout, age and autonomy restrictions on professional athletes, digital media and the law, antitrust and sports, and many other topics.
Yale Law School
Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports and the Law: Current Issues
April 4 2011 6:00 to 8:00 p.m. Room 120
Moderator:
MICHAEL MCCANN (Vermont Law School Professor of Law/Director of Sports Law Institute & Sports Illustrated Legal Analyst)
Panelists:
ALAN MILSTEIN (Sherman Silverstein Co-Managing Shareholder; has represented Carmelo Anthony, Allen Iverson, Eddy Curry, Maurice Clarett, and many other star athletes in litigation and other matters)
ERIC NYQUIST (NASCAR Vice President of Strategic Development)
CHRIS PARK (Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball)
JAY REISINGER (Farrell & Reisinger partner; manages firm's sports law practice; has represented Josh Hamilton, Alex Rodriguez, K-Rod, Andy Pettite, Sammy Sosa and many other star players, either before Congress, the media, or in arbitration)
BRAD RUSKIN (Proskauer partner; head of the litigation section of firm's Sports Law Group; represented ATP in Deutscher Tennis Bund, et al vs.
ATP World Tour)
MIKE ZARREN, Boston Celtics Assistant General Manager and Associate Counsel (plays key role in talent evaluation and salary cap management for the team, including in the famed deal for Kevin Garnett)
Excellent work by Benjamin Aronson and Javier Zapata, the Yale Entertainment and Sports Law Association Co-Chairs, in putting this event together. Posted By : Michael McCann
Sports Law Career Opportunity
Message posted on : 2011-03-17 - 12:00:00
The Oakland Athletics are currently looking to hire an assistant legal counsel with at least 4 years of experience in a corporate/transactional practice. For more information regarding the position, check out the job ad available here.
Posted By : Nathaniel Grow
Indiana Finds Fault in Death of Notre Dame Student Declan Sullivan
Message posted on : 2011-03-16 - 21:39:00
On Sports Illustrated Video I discuss the implications of yesterday's findings in the death of a Notre Dame student who was killed when the hydraulic lift he was on while taping a team football practice fell over in 53 mph winds.
Posted By : Michael McCann
The prospect of Vegas-style sports gambling in New Jersey took a hit on March 7, 2011 when Chief Judge Garrett E. Brown of the United States District Court of New Jersey dismissed a long-percolating federal lawsuit challenging the constitutionality of the Professional & Amateur Sports Protection Act (“PASPA”).The 19 page opinion has yet to be posted on the court's website, but the decision is available via PACER.Passed in 1992, PASPA prohibits sports betting in all states except for Nevada, Delaware, Montana, and Oregon.New Jersey State Senator Raymond J. Lesniak and Stephen M. Sweeney, along with a number of pro-gambling trade associations, sought to invalidate PASPA on constitutional grounds, thereby allowing New Jersey (and, presumably, other states) to offer state-regulated sports wagering.New Jersey Governor Chris Christie declined the opportunity to intervene in the lawsuit as an additional plaintiff.The lawsuit suit was filed in 2009.U.S. Attorney General Eric H. Holder, the U.S. Attorney for the District of New Jersey, and unnamed sports organizations were listed as defendants.
The plaintiffs put forth a multi-pronged argument based on the U.S. Constitution.Specifically, they claimed that PASPA violates the following constitutional provisions: (i) the Commerce Clause; (ii) the First Amendment's protection of expression and assembly; (iii) the Tenth Amendment; (iv) the Eleventh Amendment; (v) the Due Process Clause; and (vi) the Equal Protection Clause.Instead of contesting the lawsuit on substantive grounds, the U.S. government moved to dismiss the lawsuit procedurally for lack of standing and failure to state a claim.
Citing Supreme Court cases familiar to every first year law student, Chief Judge Brown addressed the standing issue.The judge cited Lujan v. Defenders of Wildlife for Article III's requirement that federal judicial review be limited to actual cases and controversies.Likewise, Chief Judge Brown quoted FW/PBS, Inc. v. City of Dallas for the proposition that the plaintiff must “clearly…allege facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute” (p. 6).The plaintiff trade associations were found to have no standing on this basis.
In connection with New Jersey Senators Lesniak and Sweeney, the judge provided additional reasoning and specifically addressed the fact that the New Jersey legislature recently passed Senate Concurrent Resolution No. 132 (“SCR 132”).If approved by popular vote in November 2011, SCR 132 would amend the New Jersey constitution “to permit the legislature to authorize sports wagering at Atlantic City casinos and certain horse racetracks, so long as the gambling did not extend to sporting events taking place in New Jersey or involving New Jersey collegiate teams” (p. 4). The judge posited that the Senators' SCR 132-related argument for standing “puts the cart before the horse” given that SCR 132 has yet to be voted on, let alone approved.Accordingly, Chief Judge Brown found Senators Lesniak and Sweeney to lack standing to challenge PASPA's constitutionality.Under New Jersey law, “the proper party to bring such a claim would be New Jersey's attorney general, but the governor and attorney general have not intervened in this lawsuit” (p. 18).
It isn't particularly surprising that certain New Jersey lawmakers are looking to sports-based gambling as a way to increase state revenue.According to a recent Pew Research report, 33% of American men gamble of sporting events.In 2009, $2.57 billion was wagered legally in Nevada, although the amount of action in Nevada-based sports books probably only represents 1% of all sports bets made nationwide.The illicit nature of some gambling, coupled with the availability of the Internet, has caused the popularity of off-shore sports wagering to explode during the past fifteen years.The passage of the federal Unlawful Internet Gambling Enforcement Act in 2006 has done little to diminish online/offshore sports gambling.As a result, internet sports wagering is largely unregulated, potentially depriving certain states and municipalities of tax revenue.A 2011 Contemporary Economic Policy by Douglas M. Walker and John D. Jackson article investigated whether state-sponsored gambling increases revenue.The authors found that lotteries and horse racing did contribute to the bottom line, but casinos and greyhound racing did not.
The future viability of sports betting in New Jersey now seemingly rests with the state's
voters. If SCR 132 is approved, it is possible (probable?) that Governor Christie and the New Jersey Attorney General will feel compelled to re-institute the lawsuit. Given that Chief Judge Brown decided the case on procedural, not substantive, grounds, such a reincarnation would not have the hurdle of any adverse precedent, as the constitutional claims promulgated by the plaintiffs in the just-dismissed case were not at issue.
Posted By : Ryan M. Rodenberg
Another take on NBA Referee Bill Spooner's Twitter-based Defamation Lawsuit
Message posted on : 2011-03-15 - 17:00:00
Howard has a great post on Bill Spooner's defamation lawsuit against the Associated Press and AP reporter Jon Krawczynski. Zach Lowe of Sports Illustrated has also written about the lawsuit and I offered him my thoughts on it. To read Zach's SI article, click here. Posted By : Michael McCann
NBA ref sues for defamation
Message posted on : 2011-03-15 - 14:30:00
NBA Ref Bill Spooner has filed a defamation action in federal court against the Associate Press and AP reporter Jon Krawczynski, based on a tweet that Krawczynski sent during a Timberwolves-Rockets game in January. Following a foul call on the Wolves, Wolves Coach Kurt Rambis disputed the call in a conversation with Spooner. According to the complaint, Spooner told Rambis he would review the call (on video) at halftime and get back to him about it. Rambis then said, "'that's fine, but how do I get those points back.'" Krawczynski later tweeted "Ref Bill Spooner told Rambis he'd "get it back" after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks." In the complaint, Spooner denies responding to Rambis' comment or to making any make-up call. The complaint asks for damages and an injunction ordering the removal of the tweet and/or a retraction.
The key will be Spooner's status as a public figure. He spends four paragraphs obviously designed to establish himself as a non-public figure. This is important, because it seems to me the most likely explanation for the whole thing is that Krawczynski misheard the conversation between Spooner and Rambis, then speculated that a subsequent bad call was a make-up call. Which would be negligent, but not reckless. But it seems to me that within the confines of a story or comment about a basketball game and the officiating at a game, a referee should be a public figure. So he would have to show recklessness by Krawczysnki in order to recover.
There are some other procedurally strange allegations in the complaint. For example, the last paragraph "reserves" the right to amend the complaint, which is entirely unnecessary because FRCP 15 does that on its own. It also uses really strange language in alleging personal jurisdiction over Krawczynski, which should have been easy, since he lives in the forum state and thus is suable in his domicile. Posted By : Howard Wasserman
College Football Pro Days
Message posted on : 2011-03-15 - 09:00:00
While much of the country watches the labor negotiations between the NFL and NFLPA (now the professional trade association) and figures that this will get resolved at some point before it impacts the season, it is having a direct impact on some pro prospects right now. Colleges typically host “Pro Days” which afford all of a school's players interested in pursuing a career in professional football—not just the NFL but the CFL, Arena League, etc.—an opportunity to display their skills in front of scouts.
Some of a school's stars may have already participated in the NFL Scouting Combine in Indianapolis in February, but for those who aren't as highly touted their school's Pro Day is their only real post-season tryout. The individuals who were at the NFL Combine may elect to run through specific drills again depending upon their performance previously; if a player ran a “slow” 40 yard sprint in Indianapolis, he would have the option of running this test again. It is not uncommon for an individual to skip certain tests in Indianapolis because of an injury and thereby elect to participate at their college's Pro Day.
So who is getting hurt? Well it now appears that because of the labor impasse the NFL will only allow those individuals who are eligible for the 2011 NFL draft to participate. However, often schools will allow their players, who for whatever reason were not selected in the previous year's draft, to return to campus and participate in Pro Day. If a player was injured, or made it to a training camp without being drafted and didn't make a roster, a school's Pro Day gives them one more chance to tryout in front of NFL scouts.
However, since these players were not drafted in previous years, through the NFL's eyes they are free agents. As such, contact is now forbidden and these players will be unable to participate in their school's Pro Day. Posted By : Warren K. Zola
* Mike Sando of ESPN: a number of great pieces on the NFL labor crisis. Posted By : Michael McCann
Rethinking the Role of Decertification in Sports Labor Disputes
Message posted on : 2011-03-14 - 19:30:00
One aspect of the recent decertification by the NFL Players' Association that I believe has (understandably) been somewhat overlooked is what the NFLPA's decision tells us about the role that the threat of decertification plays in labor disputes between sports leagues and players' unions generally. Up until now, the general scholarly consensus has been that players' unions are quite hesitant to decertify during a labor dispute given the potential rights they risk losing (such as previously negotiated insurance and pension benefits), and as a result decertification is only a weapon of last resort.
In the current NFL labor dispute, however, that wasn't the case. If anything, it appears that the union may actually have been eager to decertify, recognizing that decertification would place additional pressure on the NFL owners by allowing the players to assert a variety of antitrust claims against the league. Admittedly, some of the motivation for the NFLPA to decertify sooner rather than later may have come from a provision in the most recent collective bargaining agreement providing that if the union waited to decertify until after the CBA formally expired, then it could not file an antitrust suit against the league for a period of 6 months. Nevertheless, the speed with which the NFLPA was willing to decertify in this case runs counter to the conventional wisdom on such matters.
New Sports Illustrated Piece on NFL - NFLPA talks Collapsing, NFLPA Decertifiying, and What's Next
Message posted on : 2011-03-11 - 17:19:00
Unfortunately, the NFL - NFLPA negotiations have just ended in failure and the NFLPA filed for decertification minutes ago. The future for the two sides and NFL football is hazy, but on SI.com I offer one possible road map of what we might expect. Posted By : Michael McCann
Should Zdeno Chara be Charged with a Crime?
Message posted on : 2011-03-11 - 10:30:00
If you haven't seen Boston Bruins defenseman and captain Zdeno Chara's hit on Montreal Canadian left wing Max Pacioretty from earlier this week in Montreal,
here it is
Pacioretty, who was taken off the ice on a stretcher, suffered a fracture to the 4th cervical vertebra (which is in the middle of the neck) and a severe concussion. Doctors have said that there is no timetable for Pacioretty's return. Given the severity and location of his injuries, it seems likely that the 22-year-old Pacioretty will be out for quite a while and his career may be in jeopardy.
While Chara received a five-minute major penalty and a game misconduct, the NHL, after reviewing the incident, declined to impose an additional penalty. Here was NHL's vice president of operations, Mike Murphy, on the league's decision:
After a thorough review of the video, I can find no basis to impose supplemental discipline. This hit resulted from a play that evolved and then happened very quickly -- with both players skating in the same direction and with Chara attempting to angle his opponent into the boards. I could not find any evidence to suggest that, beyond this being a correct call for interference, that Chara targeted the head of his opponent, left his feet or delivered the check in any other manner that could be deemed to be dangerous.
This was a hockey play that resulted in an injury because of the player colliding with the stanchion and then the ice surface. In reviewing this play, I also took into consideration that Chara has not been involved in a supplemental discipline incident during his 13-year NHL career.
The league's decision to not impose an additional sanction on Chara has prompted sharp disagreement from one of its sponsors, Air Canada, which is threatening to pull its sponsorship of the league.
Richard Weir of the Boston Herald interviews several persons for a story today on whether Chara should be charged with a crime. Here is an excerpt:
“As long as there's a sense that it's part of what happened in a hockey game — it is a violent game, like a football game, terrible things happen — it's highly unlikely a prosecutor would choose to intervene,” said Alfred Yen, who teaches sports law at Boston College School of Law. “I think only the situation where a prosecutor would be likely to intervene is if somebody, after the whistle blows and play is stopped, and runs up to somebody and just whacks them. That would be different.”
Mike McCann, who is also director of the Sports Law Institute at Vermont Law School and is the legal analyst for Sports Illustrated, said prosecutors in the States usually defer to professional sports leagues like the NHL to mete out punishments in cases that leave athletes marred with concussions or other potential career-ending injuries.
“If you look at Matt Cook and the hit he put on (Bruin) Marc Savard, that was worse,” McCann said, adding that Pittsburgh police passed on charging the Penguins forward. . . .
Noting that Canadian law requires intentional conduct as the basis of an assault charge, McCann commented, “You could argue that a fight is more intentional.”
To expand on my comments, I do think there are some hockey hits/slashes that are so dangerous and intentional that they warrant criminal sanction. The slash by Marty McSolrey on Donald Brashear from back in 2000 is a good example.
But as I see it, Chara's hit seems awful not for its dangerousness or intent, but rather because of the unexpectedly awful injuries that resulted from it - almost like a egg-shell case.
I think if Chara can be prosecuted for what he did, then the NHL might have to change their rules on physical contact -- and maybe that would be a good thing, but that would have to be debated. We might also see NHL players, cognizant of legal consequences for inflicting physical contact on other players, adopting a less physical style of play, with less checking and less fighting.
Update: My research assistant Adam Zebryk makes a very good point: Could the Belle Centre's design have in any way contributed to Pacioretty's injury? All NHL rinks have the same ice surface dimensions - 200 feet long by 85 feet wide - but they vary in other ways, including the type of glass and curvature of glass. I have no idea if the glass type/curvature mattered here, but maybe it played a role as Pacioretty did crash into the glass. Posted By : Michael McCann
Clock is ticking on NFL and NFLPA and Signs are Ominious
Message posted on : 2011-03-10 - 20:18:00
Things don't look good for the NFL and NFLPA with 28 hours to go till their deadline. They didn't even talk today, due to apparent misunderstandings about whether they were supposed to meet with federal mediator George Cohen. You would think they would approach these negotiations with a greater sense of urgency and would have found a way and time to bargain at some point today, but instead they apparently lost the day. Perhaps the gap between them is too far to bridge and they are resigned to the legal consequences that will follow. Posted By : Michael McCann
Sports Lawyers Association Conference Program
Message posted on : 2011-03-10 - 10:00:00
The program for the 37th Annual Sports Lawyers Association ("SLA") conference at the Renaissance Hotel in Washington, DC is now posted. In addition to a number of interesting panels and breakout sessions, the SLA conference offers an ample amount of CLE credits for licensed/practicing attorneys. One panel that may be of particular note to Sports Law Blog readers is the "town hall debate" moderated by Gabe Feldman pertaining to the legality of the BCS. For related coverage on the legality of the BCS, check out the following two law review articles by our Sports Law Blog colleagues:
New Sports Illustrated video on Evidence implicating Barry Bonds
Message posted on : 2011-03-09 - 14:00:00
Do rather significant body changes experienced by Barry Bonds over the years prove that he used steroids? Is the testimony of non-medical people, like Bonds's former personal shopper, about medicines Bonds was using less persuasive because they lack scientific background or more persuasive because they speak in plain-spoken language? I talk about those and other issues with Maggie Gray of Sports Illustrated Video.
Posted By : Michael McCann
Harvard Law School -- 2011 Sports Law Symposium
Message posted on : 2011-03-09 - 09:30:00
Harvard's Committee on Sports and Entertainment Law, with the leadership of Peter Carfagna, will host its 2011 Sports Law Symposium on Friday, March 25th on the campus of Harvard Law School.
The symposium, free and open to the public, will focus on the legal and business issues surrounding intercollegiate athletics, and the overarching theme of the symposium is “The Changing Face of Intercollegiate Athletics: Amateurs, Academics, and the Athletic Arms Race.”
The symposium will feature five panels, a lunch presentation from the Sports Legacy Institute, and a Keynote Speech from Sonny Vaccaro, “The Godfather of Grassroots Basketball”. Vaccaro is a former sports marketing executive (he signed Michael Jordan and Kobe Bryant to their first shoe deals) and pioneer on the summer basketball circuit (he founded the ABCD Summer Camp). In his second career, Vaccaro has become an advocate for student-athletes in an effort to change the NCAA's treatment of student-athletes. Vaccaro currently serves as a consultant for the plaintiffs in O'Bannon v. NCAA, a class action lawsuit with the potential to radically alter the college sports landscape.
The distinguished speakers include five contributors to the Sports Law Blog – Marc Edelman, Gabe Feldman, Nathanial Grow, Michael McCann and Warren Zola. There will be panels on the following topics: amateurism, conference realignment, athlete-agent relationships, litigating against the NCAA, and the legality BCS.
To see the symposium's website (with a complete list of speakers), click here. To RSVP, click here. Posted By : Warren K. Zola
The Risks of Putting New York Out of Commission
Message posted on : 2011-03-08 - 09:30:00
Early last month, Michael Marley reported on Boxing Scene.com that Melvina Lathan, the distinguished Chairperson of the New York State Athletic Commission (the “Commission”), is likely on her way out as a result of Governor Andrew Cuomo's need to address New York State's $10 billion budget deficit.Marley reported that Lathan is but one of up to 10,000 state employees that may or will find themselves without a job in the coming months, unless she opts to offer her services on a pro bono basis. While cutting Lathan loose may make sense to some in the context of New York's bigger problems, the question is begged as to what happens to the Commission, and the New York boxing scene as a whole, if both Lathan departs and the Commission is no longer provided the budget it needs to stay fully and capably staffed.A quick look at some of the potential issues and fall-out follows.
Who Will Step Up to be the Chief ?
Lathan's salary is/was allegedly in the low six figure range, a respectable salary for someone who is charged with making certain that everything runs smoothly at every boxing event staged in New York State in a given year.If New York State is now unable or unwilling to pay a similar (or any) salary to her replacement in the midst of its budget crisis, who would step up and accept the throne? Marley suggested that someone such as retired heavyweight contender “Baby” Joe Mesi may be in the running.As articulate and well-liked as Mesi is in New York boxing circles, one has to believe that he does not have the grasp on boxing's legal and regulatory niceties that either Lathan, or a veteran from boxing's legal community in New York, would have if a respectable salary could be guaranteed.Without a strong Chairperson, the Commission is at risk of losing its edge in terms of continuing to take decisive steps to keep the bouts under its jurisdiction fair and safe, and doing its part to take the lead in suspending boxers it feels should not be participating in the Sweet Science any longer.
Lose the Battle, Lose the Wars?
If the Commission finds itself wholly unable to budget for a solid Chairperson or staff, will New York State as a whole begin to fall out of the running for major fight cards? In the past year, several notable boxing cards took place at Madison Square Garden, boxing made its reemergence at (the new) Yankees Stadium with a tremendous action bout between Miguel Cotto and Yuri Foreman, and Oscar De La Hoya's Golden Boy Promotions entered into an agreement to stage monthly cards at Brooklyn's Barclays Center.With a fractured Commission, does the annual number of bouts dwindle at the Garden and its smaller counterpart, the Wamu Theater? Does boxing become a one-off event at the new Yankees Stadium? Does Golden Boy decide that New York's house is in too much disarray to make the Barclays Center deal worthwhile? Probably not, as New York can house major events like few other states, but the undercurrent of uncertainty may be create concern for some.
No Addition Given the Subtraction?
The Chief Justice of Standing 8 Court recently moderated a forum at the headquarters of the New York County Lawyers Association during which the panelists discussed and debated the legal and regulatory issues
surrounding the legalization of mixed martial arts in New York.Given the recentness of Marley's report at that time, the inevitable question came up: how would the Commission be able to handle the increase in the number of combat sports events if MMA were legalized, yet the budget cuts made as to the Commission continued?One answer is that with the estimated $1.3 million in direct revenue and $23 million in economic impact that MMA events can bring to New York State in a given year, the windfall alone could help pay for the upkeep of a respectable Commission.Indeed, it is beyond question that venues from Nassau Coliseum, to Madison Square Garden, to University at Buffalo Stadium would sell out in a matter of minutes in the face of a UFC or Strike Force card.Unfortunately, however, any direct revenue generated would likely go straight into the more general budget pool, and likely not be earmarked exclusively for the Commission.In sum, the recent subtraction could make the addition of more combat sporting events a daunting prospect for the Commission unless MMA's legalization was attached to a revamped budget for the Commission. As an aside, here's hoping that the day is near where East Meadow, Long Island's own Matt Serra and other New York-raised MMA talent will finally get the opportunity to dazzle their hometown fans without having to place them all on a bus back from Atlantic City or Newark afterwards.
Who'd be There to Keep the Foxes Out of the Hen House?
One strong feature of the Commission is the arbitration/ mediation mechanism that it has been in place to handle the contractual disputes that arise between boxers and their management. The result is an economical way to avoid costly litigation in New York State, a tremendous benefit to the many boxers whom toil away at their craft for minimal pay in New York's gyms while awaiting their breakthrough opportunities.Many of these boxers already rely on the goodwill of area attorneys/ boxing enthusiasts to look over their agreements on the arm and make sure they are not being robbed by their prospective manager or promoter.Many of those same enthusiasts, however, may be not be as generous with their otherwise billable time if it meant having to stage a full-blown litigation if the Commission one day did not have the budget to stay up to speed with its arbitrations and mediations.Perhaps New York law firms could handle such disputes on a per diem or pro bono basis for the Commission if it came to that, or perhaps a law school's sports law clinic, such as those at Valparaiso or University of Vermont, could step in.Without the Commission staying on top of such dispute resolution itself, however, it is very likely that some New York-based boxers would fall through the cracks and be subject to abuse without any economical source of recourse if the Commission could one day no longer attend to their needs due to budget cuts.
Standing 8 Court could probably continue on for a long time with the unsettling potential implications of the recent budget cuts on the future of boxing in New York State.These above issues, however, should be enough of a contribution for one night to the healthy debate as to why New York State should give some thought to not putting Lathan, and the Commission as a whole, out of commission. On behalf of the New York State combat sports community, Standing 8 Court asks that New York State find a way to keep the Mecca of Boxing, Madison Square Garden, and boxing's smaller houses of worship throughout
New York, flush with events, fans, and Commission employees capable of making sure everything runs smoothly.Maybe boxing and MMA will not knock out the budget deficit themselves, but at least they can be given the opportunity to do their small part to provide an escape to the New York taxpayers who look forward to attending their events.
This article is also available at this link. Posted By : Paul Stuart Haberman
U.S. Supreme Court Declines to Hear Spygate Case
Message posted on : 2011-03-07 - 13:30:00
ESPN.com is reporting that the U.S. Supreme Court declined to grant certiorari today in Mayer v. Belichick, the class action lawsuit resulting from the New England Patriots' 2007 "Spygate" controversy. The lawsuit alleged that by videotaping signals from the New York Jets' coaches, the Patriots had essentially rigged their contests versus the Jets and thus cheated fans out of millions of dollars. Both the district and appellate courts had previously dismissed the case.
With only five minutes to go before the union's deadline to decertify last Thursday -- a move that might have obliterated the NFL as we know it today -- a player walked into the negotiating room that included commissioner Roger Goodell, league attorney Jeff Pash, NFLPA executive director DeMaurice Smith and union president Kevin Mawae and declared: "We're done! We're decertifying."
As noted in this space recently, the 5th Annual MIT Sloan Sports Analytics Conference was held in Boston this weekend. The conference's mission is “to provide a forum for industry professionals (executives and leading researchers) and students to discuss the increasing role of analytics in the sports industry.”
A sold out conference found 1,500 attendees listening to an astounding array of panelists—including our own Michael McCann sitting on a panel discussing Sports Labor Issues. Some of the more interesting speakers included Malcolm Gladwell, Mark Cuban (sporting a “talk nerdy to me” t-shirt), ESPN's Bill “The Sports Guy” Simmons, and Brian Burke of the Toronto Maple Leafs.
To get a sense of the conference, which not surprisingly did a wonderful job using social media, you can check out the Twitter feeds at this link.
Serving an academic purpose, the conference had a MBA Sports Case Competition (MIT was just announced as the winner so several attendees and I will be asking for a recount) and accepted over 100 research papers. The authors of these papers were around to share their insights but the papers themselves can be accessed online at this link. Posted By : Warren K. Zola
If the NFLPA ends up suing the NFL, should Tom Brady be the named plaintiff?
New Sports Illustrated Column: 10 Answers to 10 Big Questions on NFL Labor Crisis
Message posted on : 2011-03-03 - 15:46:00
I have a new SI column that answers 10 key questions about what will happen if we see decertification/lockout in the NFLPA-NFL labor dispute. Here are two of the answers:
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7) With the NFLPA decertified, could college players skip the NFL draft and sign with NFL teams?
No, at least not yet. First off, if the league, as expected, shuts down operations, it could cancel the 2011 NFL Draft, which is scheduled to take place between April 28 and 30. The NFL is unlikely to cancel the draft, however, due to language in Article XVI of the collective bargaining agreement and since teams have prepared for it and doing so would only elevate the chaos of the labor crisis. Therefore, absent a legal challenge, the draft will likely remain the exclusive process by which amateur players join the NFL.
Once the NFLPA decertifies, however, a college player or a group of college players could bring an antitrust challenge against the NFL over the draft. The lawsuit would likely argue that the draft harms them economically, and harms competition in general, since college players could earn more income and play on their preferred teams if they were free agents and not subject to the draft. If a court were sympathetic to the argument, it could issue an injunction postponing the draft until after an evaluation of the antitrust challenge.
Alternatively, star freshman or sophomore players could challenge the NFL's draft eligibility restriction that players be three years removed from high school before they are draft eligible. Without the labor exemption protecting the eligibility restriction, a court may reason that certain players are good enough to attract NFL teams before they are three years removed from high school and thus the restriction against them harms competition for players, since players "good enough" to turn pro are denied the chance.
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10) Following a lockout, can players join teams in other leagues like the United Football League, the Arena Football League or the Canadian Football League?
Yes. Players could join such leagues because their NFL contracts would be suspended and the NFLPA assures that they would continue to receive their $60,000 lockout compensation regardless of other income.
However, there would not be enough roster spots in those leagues for all NFL players. Most NFL players, moreover, would probably resist the temptation of joining a league that does not pay nearly as well as the NFL.
For example, the salary cap is about $4.25 million for each team in the CFL, whose season runs from June 30 to Nov. 27. To put that number in perspective, the salary cap for each NFL team in the last capped season -- 2009 -- was $130 million. Also, the average CFL salary is about $50,000; the average NFL salary is $1.9 million and the minimum NFL salary is $325,000 (NFL practice squad players normally earn $88,400). While $50,000 would be a good salary for many employees, it would probably seem low for someone who is exposing his body to potentially catastrophic injury on every play, particularly for someone who is accustomed to earning much more for that risk.
The lack of viable alternatives for NFL players to play professional football highlights a key difference in bargaining leverage between them and NBA players, who may also be subject to a lengthy work stoppage later this year. Some NBA players, particularly stars, would be able to recoup a substantial portion of their lost NBA income by playing in Europe, whereas few NFL players can recoup a substantial portion by playing pro football elsewhere.
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To read the other eight question/answers, click here. Posted By : Michael McCann
New Joint Sports Illustrated and CBS News Investigation into Crime and College Football
Message posted on : 2011-03-02 - 15:00:00
Our cover story in this week's Sports Illustrated concerns a joint investigation by SI and CBS News on crime and college football. I had the honor of being part of this investigation, which we've conducted over the last 6 months.
• Seven percent of the players in the preseason Top 25 -- 204 in all (1 of every 14) -- had been charged with or cited for a crime, including dozens of players with multiple arrests.
• Of the 277 incidents uncovered, nearly 40 percent involved serious offenses, including 56 violent crimes such as assault and battery (25 cases), domestic violence (6), aggravated assault (4), robbery (4) and sex offenses (3). In addition there were 41 charges for property crimes, including burglary and theft and larceny.
• There were more than 105 drug and alcohol offenses, including DUI, drug possession and intent to distribute cocaine.
• Race was not a major factor. In the overall sample, 48 percent of the players were black and 44.5 percent were white. Sixty percent of the players with a criminal history were black and 38 percent were white.
• In cases in which the outcome was known, players were guilty or paid some penalty in nearly 60 percent of the 277 total incidents.
Should schools be allowed to recruit students who have had criminal histories?
Posted By : Michael McCann
New Sports Illustrated Column on Greg Anderson Going Back to Prison for Barry Bonds
Message posted on : 2011-03-02 - 08:00:00
I have a new SI column on Barry Bonds and yesterday's ruling that Greg Anderson -- the former trainer and incredibly/almost unbelievably loyal friend of Bonds -- will be going back to prison.
Here's an excerpt:
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Anderson is already familiar with the consequences of disregarding a court order. He spent a year in prison between 2006 and 2007 for refusing to testify in related proceedings against Bonds. Assuming Anderson does not have a change of heart -- and his lawyer, Mark Geragos insists that he won't -- he could spend as much as a month in this prison this time around. While the penalty may seem duplicative and unnecessary, since Anderson has already spent considerable time in prison for Bonds and it appears that additional prison time will not change his thinking, Judge Illston does not want to reward Anderson for choosing his loyalty to Bonds over his civic obligation to a court.
Even without Anderson's live cooperation, prosecutors can still use Anderson's voice to implicate Bonds. In a taped conversation of Anderson and Bonds' former business partner, Steve Hoskins, from 2003, Anderson boasts that he provided Bonds with "the Clear" (tetrahydrogestrinone or THT). Also in the conversation, Hoskins characterizes Bonds as "taking those shots." . . . .
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Bonds' attorneys will also have their work cut out for them in explaining why their client would decline an offer of immunity when appearing before the grand jury. Bonds had to agree to testify truthfully about drugs; he refused. Judge Illston ruled that such a piece of evidence is admissible. During the trial, Bonds' attorneys will probably reason that their client did not need immunity since, in their view, he was already telling the truth when stating he did not use steroids. A jury may conclude, however, that Bonds was worried more about how accepting the immunity offer would have harmed his baseball legacy than about how declining the offer would have harmed his legal standing.
With NFLPA decertification a strong possibility before the March 3rd deadline, most of our attention to the ramifications of this labor impasse has been directed towards owners and players. However, there is another segment of union representatives who also will be affected—agents. Under the current (but not for long) CBA, the NFLPA is recognized as “the sole and exclusive bargaining representative of present and future employees players in the NFL.” Thus, while unions are vested with the legal right to negotiate on behalf of their members, the NFLPA—along with the NBPA, MLBPA, and NHLPA—grant those rights to individual agents.
The NFLPA has developed regulations that govern all contract advisors which include certification, conduct, agreements between advisors and players, and discipline and oversight among others. If the NFLPA decertifies, agents will no longer be legally bound to a union because there will be no union. While it is likely that the agents will be asked to “voluntarily” register and comply with NFLPA guidelines there is no legal requirement that they do so.
What does this mean? To start, the NFLPA's “Junior Rule” would no longer be in effect. The “Junior Rule”—found in Section 3 B (30) (a) of the NFLPA's Regulations governing contract advisors—prohibits contact with a college player until:
“after a prospective player's last regular season college or conference championship game (excluding any post-season bowl game) or December 1, whichever is later, of the college football season immediately prior to the year in which such prospective player would be eligible to apply for the NFL Draft.”
Thus, while the NCAA does not make such contact illegal, agents are not allowed to contact freshman, sophomores, or juniors under NFLPA guidelines. Without these regulations it is entirely likely that we will see agents reaching out to those highly desirable underclassmen if decertification comes to pass. Furthermore, it is also entirely possible that after the dust settles the “Junior Rule” does not return.
What other NFLPA rules relative to agents will lose their legal imprimatur? What about the requirement that a contract advisor be certified by the NFLPA? How about the cap on commissions set at 3%? What about the Standard Representation Agreement (SRA) that every player signs when they select an agent—will agents be able to sign new clients to different terms? Certainly arbitration rules that govern disputes between agents and the NFLPA will be on hold.
The bottom line is that decertification may bring changes that are ancillary to the labor impasse but meaningful in unintended ways. Posted By : Warren K. Zola
DePaul's Friday Symposium on Compliance in Chicago
The DePaul Journal of Sports Law & Contemporary Problems will host its annual sports law symposium, A Rule is a Rule: Compliance in the World of Sports, on March 4th, 2011. During this event, panelists will discuss a variety of legal issues currently arising in the world of sports. In line with our organization's mission statement, the symposium will investigate the intersection between law and sports with a focus on today's most important sports law issues, and discuss the contemporary problems that result.
Last year, our symposium was a great success. In fact, our symposium was recently acknowledged at the prestigious National Sports Law Institute Conference as being “an excellent Conference.” Panelists at our previous conference included representatives from the National Football League, the Big Ten Conference, the Chicago Cubs, and notable professors from Sports Law academia.
This year we are striving to hold another highly successful symposium to uphold the tradition. Our panelists will include compliance experts from universities, as well as scholars who have written and taught on the subject.
Compliance is a very broad topic. In the legal field, our entire careers focus on compliance with rules, whether they be federal law, state law, or bylaws within an organization. This symposium will explore issues of compliance that are particularly relevant in sports. We will have two panels: the first panel will focus on compliance in college sports, while the second panel will address compliance in professional sports
The event is being held at the University Center (525 S. State), a few blocks south of DePaul's law school. Posted By : Geoffrey Rapp
More Sports Law Links
Message posted on : 2011-02-28 - 10:30:00
As a follow-up to Mike's recent post with a number of sports law links, I wanted to provide a few more, as there have been a number of interesting developments in our field.
1. 60 Minutes ran a story on legendary Vegas-based sports gambler Billy Walters last month. The video clips provide a fascinating look into the world of high stakes "white collar" sports gambling.
2. Did Jose Canseco's admitted steroid use rub off on other MLB players? Eric Gould and Todd Kaplan analyze Canseco's "peer effects" in a forthcoming issueof Labour Economics.
3. Patrick Hruby of ESPN.com explains why lawyers "always get [the] last laugh in sports, as in life."
4. Ben McGrath of The New Yorker asks - "Does football have a future?" McGrath's article looks at the "concussion crisis" in the NFL. In the latter part of the article, he mentions the possibility of imminent class action lawsuits.
5. The conventional wisdom in sports gambling is that sports books try to set their poinspreads (sides) and totals (over/unders) as a conservative/guaranteed way to profit. Steve Levitt (co-author of Freakonomics) cast doubt on such strategy in an oft-cited 2004 paper published in The Economic Journal. Rodney Paul and Andy Weinbach provide empirical support for the "Levitt hypothesis" in a new article in Applied Economics Letters.
6. Was Congress complicit in connection with baseball's antitrust exemption? Neil Longley examines Senate voting patters in a forthcoming Applied Economics Letterspiece.
Posted By : Ryan M. Rodenberg
Sunday Sports Law Links
Message posted on : 2011-02-27 - 12:00:00
*Mark Cuban wonders why more superstar U.S. teenage basketball players don't go play professionally in Europe, where players can be as young as 14 and earn lucrative contracts. The NBA, as we know, requires that U.S. players be 19-years-old and one-year removed from high school before they are eligible to play.
The European route was clearly successful for Brandon Jennings, who played professionally in Italy for one-year before becoming eligible for the 2009 NBA draft. Jennings earned about $1.2 million in Italy between salary and endorsement income -- obviously more than he would have "earned" while playing as a freshman in college, assuming he had overcome his eligibility issues.
The international experience has been much less successful for 6'11 power forward Jeremy Tyler, however. Tyler skipped his senior year of high school and struggled playing professionally in Israel in 09-10. Then again, Tyler has been much more impressive this season while playing in Japan's pro basketball league--a league which has former NBA players in it, including Bruce Bowen and Jerold Honeycutt. Tyler is averaging an efficient 9 points, 6 rebounds and 14 minutes per game while drawing consistent praise from his coach. Tyler is eligible for this year's NBA draft -- his recent improvement in play, not to mention impressive size and athletic ability, probably will land him on an NBA roster next season.
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*Shira Springer of the Boston Globe has an excellent preview of this week's MIT Sloan Sports Analytics conference (hat tip to Warren Zola). I will be speaking at the conference on the Sports Labor Relations panel.
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*How would you like to study international sports law in Florence, Italy over the summer and get law school credit for it? The South Texas College of Law is sponsoring a study abroad program in Florence between June 3 and June 25 that will focus on two courses: international amateur sports law and international professional sports law. NFL agent/attorney and former NFL player Ralph Cindrich is one of the instructors, as is South Texas College of Law prof James Musselman.
Sounds like an awesome experience to me.
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*Last year I wrote a guest column on Torts Prof Blog on the tort implications of "game presentation" -- the various things stadium operators do to keep fans interested during games, including on-court and on-field promotions -- in the context of Coomer v. Kansas City Royals, a lawsuit filed by a guy who while attending a Royals game was injured by a hot dog that had been propelled by the Royals Mascot as part of a promotion. A couple of weeks ago, the Royals lost a motion for summary judgment in the case. Carla Varriale of Athletic Business Networkhas the story on the Royals' inability to get rid of the case and what it means for game presentation.
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*I was interviewed on the Dennis and Callahan Show on WEEI Boston last week to talk about legal issues involving Barry Bonds, Roger Clemens, and DJ Henry (a Pace football player who was shot and killed by a police officer in a terrible misunderstanding of a situation). I also spoke with Drew Forresster of WNST Baltimore about Bonds, Clemens and the NFL labor crisis, and how NBA players might be in a better position than NFL players when it comes to being locked out: some NBA players, particularly the stars, will have opportunities to go play in Europe and earn considerable $$, while playing with and against legitimate talent (while European basketball may not be as "good" as the NBA, it's far better than the D League or some other minor league).
* * *
* NBA Deputy commissioner Adam Silver claims that three-quarters of NBA teams are losing money, even though NBA television ratings are way up this season.
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* UConn men's basketball coach has been suspended by the NCAA for the first three games of next season.
The Hartford Courant's Paul Doyle has the story and interviews, among others, Connecticut Sports Law's Dan Fitzgerald.
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*Do Male Athletes have Body-Image Problems? Admittedly, that's not a question I've thought much about, or maybe at all, but Libby Sander of The Chronicle of Higher Education explains why it's an interesting topic and why new research on the topic may shed light on behavior issues with male athletes.
* * *
* Before the Red Sox offered 29-year-old outfielder Carl Crawford a 7-year, $142 million contract this past off season, they obviously did their due diligence on him. After-all, the contract is fully guaranteed and the financial commitment being made is enormous, especially for a player who will turn 30 this season and whose game is based to a large extent on his speed. As Gordon Edes of ESPN.boston points out, the Red Sox took due diligence to a such a point that it creeped out Crawford:
[Red Sox Assistant GM] Allard Baird, who oversees the club's pro scouting department, was assigned to scout Crawford for most of the second half of the 2010 season.
"I knew they were scouting me," Crawford said. "Coaches would tell me this guy asked about you, or that guy."
But he said he had no inkling they were monitoring him off the field, too.
"I definitely look over my shoulder now a lot more than what I did before," he said. "Just when he told me that, the idea of him following me everywhere I go, was kind of, I wasn't comfortable with that at all.
"I don't know how they do it, how much distance they keep from you when they watch you the whole time. I definitely check my back now, at least 100 yard radius. I'm always looking over my shoulder now. Now I look before I go in my house. I'd better not see anything suspicious now."
Kind of reminds of me when the NBA "ordered its security forces" to more closely follow NBA players off-the-court. Posted By : Michael McCann
Peter Carfagna's Negotiating and Drafting Sports Venue Agreements
Peter's new book provides outstanding insight on the drafting of sports venue agreements, including naming rights agreements, media rights contracts, food and beverage agreements, and sponsorship deals with state-operated entities. It also includes complete model agreements of these types of contracts. I very much enjoyed reading the book and will no doubt be referring to it.
In addition to being an engaging teaching tool for instructors teaching drafting practices for sports venue agreements, this book is valuable to any sports law practitioner wanting to learn more about these state-of-the-art drafting practices. Beginning with the drafting of the seminal lease agreement, the book leads the reader through a series of best-practices drafting techniques for every major sports venue–related agreement, including naming rights agreements; presenting sponsorship agreements; media rights and concessions agreements; and agreements with state-operated entities. Hypothetical drafting exercises are included in each chapter for classroom use.
Posted By : Michael McCann
Traveling Violations
Message posted on : 2011-02-24 - 19:22:00
This week the University of Tennessee released the NCAA's “Notice of Allegations” against its football and men's basketball team, outlining eleven violations. Both current men's basketball coach Bruce Pearl and former (albeit brief) football coach Lane Kiffin were cited for multiple violations. While many are predicting sanctions against the University of Tennessee, Bruce Pearl, and possibly the Director of Athletics Mike Hamilton, what is interesting is whether the NCAA will impose further sanctions on Lane Kiffin now that he is the head football coach at USC.
Historically, coaches have left town before the NCAA hammer comes down, often resulting in infractions on the school and players left behind but not on the coach himself—John Calipari anyone? However, on occasion the NCAA has imposed penalties on coaches themselves even if they are employed at a new school. In the NCAA's Manual, Bylaw 19.5 gives the NCAA the right to impose penalties on either an institution or individual—with no restrictions on whether that individual is still at the institution at which they committed the infraction.
This has happened at least twice within the last decade. Specifically, Rick Neuheisel was punished in 2002 while at the University of Washington for violations he was deemed to have made at the University of Colorado. More recently, in 2008 Kelvin Sampson was punished while at Indiana University for conduct he engaged in while at the University of Oklahoma.
It will be interesting to follow whether or not the NCAA will impose some form of punishment on Lane Kiffin now that he is in charge of the football program at USC. If this does happen, does USC have a claim against Kiffin and/or the University of Tennessee?
Posted By : Warren K. Zola
Sports Law Career Opportunity
Message posted on : 2011-02-23 - 12:00:00
The San Diego Padres are currently looking to hire an Associate General Counsel with 3-5 years of general corporate and transactional legal experience. For more information about the position, check out this post at AboveTheLaw, or view Position # 7921 at the recruiting website Lateral Link.
Posted By : Nathaniel Grow
Circumventing MLB's Waiver Rules
Message posted on : 2011-02-22 - 17:02:00
As several media outletsare reporting, the Boston Red Sox included an unusual provision in their recent contract with left handed pitcher Andrew Miller (pictured), in an apparent, creative attempt to circumvent Major League Baseball's complex waiver rules. Specifically, the Red Sox signed Miller to a minor league deal for 2011, with a $3 million club option for the 2012 season. However, the contract stipulates that the $3 million option will immediately vest should Miller be claimed on waivers by another team.
Because Miller signed a minor league contract, the Red Sox can assign him to one of their minor league affiliates to begin the season (most likely their AAA team in Pawtucket). However, if Boston recalls Miller to the majors at some point this year, the Red Sox can only reassign him to the minor leagues if Miller first clears waivers, giving the other 29 MLB teams the chance to claim him for their own major league roster. By giving Miller a relatively expensive vesting option in the event that he is claimed on waivers, the Red Sox appear to hope that other clubs will be deterred from claiming Miller should he end up on the waiver wire.
While Miller's contract may not violate the letter of the MLB rules, it does appear to violate at least the spirit of the waiver system. MLB's waiver process serves two general purposes: first, the rules are intended to protect minor league players by providing them with an opportunity to play for another major league team should their current franchise fail to offer them a major league roster spot; second, the waiver system also helps to enhance competitive balance across the league by preventing major league teams from stockpiling young talent in their minor league systems.
As Dave Cameron over at FanGraphs notes, Miller's specific case does not seem to be at odds with the waiver system's first purpose, as Miller willingly signed off on the provision in order to increase his chances of remaining in the Red Sox's organization for the entire season. However, should this strategy catch on with other teams, it is possible that future minor league players will be coerced into signing similar contracts even though they would prefer to retain an unencumbered chance of being claimed on waivers by another team.
Moreover, Miller's contract appears to be inconsistent with the second purpose of the waiver system, as the Red Sox have created a disincentive for other teams to claim Miller off waivers, increasing the chances that Boston will maintain control over a player that they cannot presently use, but one who another team might need for the 2011 season.
Accordingly, I suspect that MLB will consider revising its rules in order to close this loophole in the future. Posted By : Nathaniel Grow
NFL Labor Negotiations: Are We Headed for the Doomsday Scenario?
Message posted on : 2011-02-21 - 13:14:00
I have a new column up over at the Huffington Post that takes a closer look at what might happen as we get closer to a lockout in the NFL.Here is an excerpt. You can find the full column here… And, if you are looking for a summary of the major work stoppages in pro sports history, you can click here…
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It's all a guessing game at this point, but what is the likelihood of an extended work stoppage?
As we get closer to the expiration of the NFL Collective Bargaining Agreement, the great unanswered questions remain: Will there be a work stoppage? And, if so, how long will it last? It's anyone's guess as to when the two sides will reach an agreement (and everyone is guessing), but looking back at the past is often a good way to predict the future. And, a closer look at the "doomsday" work stoppages of the past -- where at least one regular season game was canceled -- reveals a fairly clear trend. Significant work stoppages occurred when one side was looking for a sea change--some radical transformation of the relationship between the parties. For example, in 1998-99, the NBA owners insisted on (and got) a cap on maximum player salaries. The owners locked out the players and 464 total games were canceled, including the NBA All-Star Game. In 1994-95, the MLB owner insisted on (and did not get) a salary cap. The players went on strike and 920 games were canceled, including the postseason and the World Series. In the best professional sports work stoppage movie of all time, the 2000 movie The Replacements (the Detroit News raved, "it's better than average"), professional football players went on strike late in the season, apparently because of "salary disputes" (it's not clear who got what, but Shane Falco did save the day).
And, most recently, in 2004-2005, the NHL owners insisted on (and got) a salary cap. The owners locked out the players and the entire season was cancelled, including the playoffs and the Stanley Cup. Other lengthy work stoppages were caused by fights regarding basic rights of free agency for the players. In each of these cases, one side claimed that the current system was broken (see the chart here for more details).
In the current negotiations, we're not dealing with fights over the creation of free agency or the implementation of a salary cap. The players have free agency and the owners
have a cap. But, are the owners asking for a sea change? That's a difficult question. One could make an argument that the NFL's latest proposal for a rookie wage scale--which could actually impact a majority of NFL players--would represent something close to a sea change. But, despite the NFL's proposal, it's difficult for anyone to argue--even the owners--that the system is broken. The NHL owners were willing to cancel an entire season because they believed they lost less money by not playing games than by playing games. That is certainly not the situation facing the owners and their multi-billion dollar television deals.
So, if the past is any guide, we may not be looking at a major work stoppage for the NFL...
Posted By : Gabe Feldman
Hunter Pence in the Final Arbitration Hearing of the Year
Message posted on : 2011-02-19 - 11:30:00
The Astros have won their past four arbitration hearings prior to Friday's hearing with Hunter Pence. The Astros defeated Wandy Rodriguez last year and Mark Loretta and Jose Valverde in 2008. In 1997 they won against Darryl Kile. They last lost a hearing against Rick Wilkins in 1996. Both the Wilkins and Kile hearings were decided by arbitrator Morton Mitchnick back before all of the hearings were handled by three arbitrators.
With a midpoint between the two exchanged figures in the Pence case of $6,025,000 (Astros offered $5,150,000, and Pence requested $6,900,000), the difference is $1,750,000. The Astros were represented at the Pence hearing by David Gottfried (assistant general manager), Tal Smith (president of baseball operation), and Ed Wade (general manager). Smith has an impressive career representing management in hearings.
Margaret Brogan, Robert Herzog, and Fredric Horowitz will decide the case. Herzog was a panelist on all three hearings this year, and his career panel record is 2-1. Brogan has the most experience with ten, and she has a 5-4 record favoring the teams. Horowitz is 3-3.
With the gap this large and Smith's track record, I am inclined to give the nod to the Astros again.
Here is a complete list of the Astros in arbitration according to my research -
Team Wins (8) - Bill Dawley (1986), Frank DiPino (1986), Bill Doran (1987), Darryl Kile (1997), Mark Loretta (2008), Al Osuna (1994), Wandy Rodriguez (2010), and Jose Valverde (2008).
Player Wins (6) - Joaquin Andujar (1980), Kevin Bass (1987), Glenn Davis (1989), Joe Sambito (1980), Denny Walling (1987), and Rick Wilkins (1996). Posted By : Ed Edmonds
The 2011 MIT Sloan Sports Analytics Conference
Message posted on : 2011-02-18 - 17:00:00
The premier sports business and sports industry event each year is the MIT Sloan Sports Analytics Conference, which is held in the Boston Convention and Exhibition Center.
The event this year will be held on two days - March 4 and 5 -- and will feature such speakers as author Malcolm Gladwell, Mavericks owner Mark Cuban, Patriots CEO Jonathan Kraft, Maple Leafs President Brian Burke, and ESPN NBA analyst and former head coach Jeff Van Gundy, among many others. The lead organizers of the event are Houston Rockets GM (and former MIT Sloan professor) Daryl Morey and Krafts Sports Group VP of Customer Marketing and Strategy Jessica Gelman. There are many student organizers as well. They really put together a first rate event.
I'll be a panelist on the The Coming War: Sports Labor Relations panel. We'll be discussing the NFL and NBA labor crises. Here is more information on the panel:
The Coming War: Sports Labor Relations
With looming lockouts in both the NBA and NFL, panelists will discuss the legal implications of reaching a deal. With the changing economics of the game, these CBAs will have to be more creative from a legal sense than ever before. How can both sides reach an agreement to avoid missing an entire season?
Russ Granik, former Deputy Commissioner and Chief Operating Officer of the National Basketball Association, joined Galatioto Sports Partners, one of the leading firms in the sports finance and advisory business, as Vice Chairman in October 2006. He was a guiding force in helping to establish the National Basketball Association as the most popular sports league in the world. Mr. Granik represented the league in a wide range of successful projects, such as collective bargaining agreements, television contracts and the NBA's involvement in international competition, including the last five Olympics, as a member of USA Basketball.
Mr. Granik joined the NBA in 1976 as a staff attorney. He became Assistant General Counsel in 1978 and General
Counsel in 1980. When David J. Stern was elected NBA Commissioner in 1984, he named Mr. Granik to succeed him as Executive Vice President. In 1990, Mr. Granik was elected Deputy Commissioner by the NBA Board of Governors.
During his tenure, Mr. Granik participated in every major business negotiation on behalf of the NBA and was also the chief negotiator for the league in collective bargaining that resulted in agreements with the National Basketball Players Association in 1988, 1995, 1999 and 2005.
From 1996-2000, he served as the President of USA Basketball, the United States' national governing body for international basketball competition. From 1989-96, he was a Vice President of USA Basketball and, in that role, was instrumental in working out the details of the participation of NBA players beginning with the 1992 Olympics. In November 2005, Mr. Granik received USA Basketball's Edward S. Steitz Award, which recognizes individuals for their outstanding contributions to international basketball.
Mr. Granik served two terms (2003-2007) as Chairman of the Board of the Naismith Memorial Basketball Hall of Fame, where he has been a Trustee and member of the Executive Committee since 1984, and he is also a member of the Board of Athletes for Hope.
Effective November 1, 2010, Mr. Granik was retained by ESPN as its Labor Analyst, providing on-air commentary on current collective bargaining issues in professional sports.
Mr. Granik graduated Magna Cum Laude in 1969 from Dartmouth College, where he was elected to Phi Beta Kappa, and Cum Laude from Harvard Law School in 1973. He was associated with the law firm of Breed, Abbott & Morgan in New York before joining the NBA.
Jackie MacMullan - Moderator Columnist - ESPN
Jackie MacMullan is an ESPN analyst who spent nearly 20 years as a beat writer and columnist for the Boston Globe. She worked on Sports Illustrated's staff from 1995-2000 and has written three books, including “When the Game Was Ours”, which chronicled the rivalry of Larry Bird and Earvin “Magic” Johnson. MacMullan was recently named the first female recipient of the Curt Gowdy Media Award, given by the Naismith Basketball Hallof Fame for “outstanding career achievement in writing basketball.”
MacMullan is a cum laude graduate of the University of New Hampshire, where she played four years of basketball, leading the team in scoring as a sophomore, and serving as a team captain in her senior year. She was chosen as a recipient of both the Robert Perry Student-Athlete Award and the Dean Williamson Award, given to the student who “excels in scholarship, athletics and loyalty to the University.”
Mike McCann Legal Analyst - Sports Ilustrated
Michael McCann is an Associate Professor of Law at Vermont Law School, where he teaches sports law, business law, and administrative law courses. He is also a Legal Analyst for Sports Illustrated and the “Sports and the Law” Columnist on SI.com. Professor McCann is also co-founder of the Harvard Law School Project on Law and Mind Sciences and the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where he was an Assistant Professor of Law between 2005 and 2008 and where he now teaches a sports law class every summer. During his three-year tenure at Mississippi, Professor McCann was twice honored with the Professor of the Year Award and he received the Professor of the Year for First-Year Courses Award in all three years. He was also honored by his colleagues with the Shirley Norwood Jones Faculty Award in 2008.
In the fall 2008 semester, Professor McCann was a Visiting Associate Professor of Law at Boston College Law School. He also served as Chair of the Association of American Law School's Section on Sports and the Law in 2008.
Prior to becoming a law professor in 2005, Professor McCann served as counsel to college football star Maurice Clarett in his lawsuit against the National Football League and its age eligibility rule. He also served as a Visiting Researcher at Harvard Law School and Legal Counsel to U.S. Congressman Marty Meehan.
A Massachusetts native, Professor McCann received his LL.M. from Harvard Law School (2005), his J.D. from the University of Virginia School of Law (2002), and his B.A. from Georgetown University (1998). Professor McCann has been interviewed on HBO's “Bob Costas Now”; CNN's “The Glenn Beck Show”, “American Morning”, and “Headline News”; CNBC's “Morning Call” and “Power Lunch”; and the Jim Rome Show. He has also been interviewed on NPR, BBC, the Dan Patrick Show, and by the New York Times, Washington Post, The New Republic, and Business Week.
Tom Penn NBA Analyst - ESPN
Tom Penn is an NBA Analyst on ESPN where he is regularly featured as a basketball operations expert focussing on advanced analytics, salary capology, NBA Draft, player trades and collective bargaining issues. During the free agency frenzy of 2010, Penn operated ESPN's cutting edge “cap machine” on SportsCenter where he manipulated a one-of-a-kind touchscreen to illustrate potential destinations for LeBron James and other marquee free agents.
Prior to joining ESPN, Penn spent four seasons in Portland as Vice President of Basketball Operations and Assistant General Manager of the Trail Blazers. Penn is widely known as a top expert on the NBA salary cap and Collective Bargaining Agreement. Penn worked with general manager Kevin Pritchard on negotiating player contracts, structuring player trades, evaluating talent and managing day-to-day basketball operations.
Penn came to Portland from the Memphis Grizzlies, where he served as assistant general manager/legal counsel from 2000-07. For more than five NBA seasons in Memphis, Penn worked closely with legendary NBA executive Jerry West in player and team related matters, as West built the Grizzlies into a perennial playoff team.
In 1999, Penn began his work with the Grizzlies when he joined owner Michael Heisley's NBA acquisition team. Penn helped advise and guide Heisley through the complicated acquisition process until Heisley ultimately purchased the Vancouver Grizzlies in May 2000.
After graduating from the University of Illinois law school in 1993, Penn worked as a criminal defense attorney. Six weeks after being admitted to the Illinois bar, Penn defended back-to-back jury trials of felony armed robbery and felony drug possession cases. Within two days both juries returned not guilty verdicts, and Penn's courtroom legal career was underway. Over the next five years, Penn successfully litigated over 20 other criminal jury trials.
From 1994-1999 Penn simultaneously developed his expertise in professional basketball. Penn began representing basketball players as a player agent in 1994, and in 1995 he founded a company that organized and performed professional basketball tours of Europe designed to help American players showcase their skills for European teams. The Upper Deck trading card company sponsored two European tours in 1997 and 1998. Fox Sports television filmed and broadcast a documentary of the 1998 tour.
Penn graduated with honors from the University of Notre Dame in 1990. He and his wife, Melissa, are the proud parents of their daughter, Grace, and son, TJ.
George Postolos President & CEO - The Postolos Group
George Postolos, President &
CEO of The Postolos Group LP, has a distinguished history in the sports business. His firm has advised numerous bidders for NBA, MLB and NFL teams and other sports properties. As the President and CEO of the Houston Rockets, Postolos spearheaded development of Toyota Center, conceived and negotiated the television partnership with the Houston Astros and sublicense to Fox Sports Net, and led the growth in the Rockets business that more than tripled the value of the franchise.
As Special Assistant to NBA Commissioner David Stern, Postolos assisted with matters pertaining to administration and management of the league including collective bargaining, efficient operation of league offices, national television, international expansion, and retail brand extensions.
Postolos is a graduate of Harvard College and Harvard Law School, and a former associate of Wachtell, Lipton, Rosen & Katz.
Andrew Zimbalist Robert A. Woods professor of economics - Smith College
For more information on the conference, click here. Posted By : Michael McCann
Salary Arbitration Nearing the End for 2011
Message posted on : 2011-02-18 - 14:33:00
With the Hunter Pence-Astros hearing set for today, the last day for hearings, and the two recent multiyear deals signed by Rickie Weeks and Jose Bautista, the 2011 arbitration season is nearly over. Thirty-four teams and players exchanged figures according to my research. (See my earlier post regarding including Santiago Casilla). Thirty-one settled with their teams and avoided hearings. I already posted a discussion of the other two hearings involving Ross Ohlendorf of the Pirates (he won) and Jered Weaver of the Angels (he lost). The thirty-one settlements before hearings are the fewest since 2004 when there were twenty. According to my research, there were nine multiyear deals, seven settlements above the midpoint, four settlements at the midpoint, and eleven settlements below the midpoint. Here is my list of players in each category:
Multiyear deals (9) - Jose Bautista (Blue Jays), Billy Butler (Royals), Johnny Cueto (Reds), R. A. Dickey (Mets), Josh Hamilton (Rangers), Jason Hammel (Rockies), Carlos Marmol (Cubs), Wandy Rodriguez (Astros), and Rickie Weeks (Brewers)
Above the midpoint (7) - Craig Breslow (A's), Jason Frasor (Blue Jays), Kelly Johnson (Diamondbacks), Miguel Montero (Diamondbacks), Mike Napoli (Rangers), Darren O'Day (Rangers), and Luke Scott (Orioles)
At the midpoint (4) - Jeremy Guthrie (Orioles), Francisco Liriano (Twins), Kevin Slowey (Twins), and Andres Torres (Giants)
Below the midpoint (11) - Santiago Casilla (Giants), Frank Francisco (Rangers), Hong-Chih Kuo (Dodgers), Kameron Loe (Brewers), James Loney (Dodgers), Javier Lopez (Giants), Shaun Marcum (Brewers), Angel Pagan (Mets), Ian Stewart (Rockies), Edison Volquez (Reds), and Delmon Young (Twins)
I will post something more about the Pence hearing. Posted By : Ed Edmonds
What to do about accused athletes
Message posted on : 2011-02-17 - 23:09:00
FIU has decided to allow Garrett Wittels, its star baseball player who enters this season riding a 56-game hitting streak (three shy of breaking the college record), to play to start the season, despite Wittels facing sexual assault allegations in the Bahamas. The next hearing in the case is not until April 18 and, citing the presumption of innocence, the university decided he should be allowed to continue playing, at least until further developments in his case. This raises the broader question of what to do about athletes (pro and college) who are arrested/accusd/charged with crimes but have not yet been convicted. I genuinely am not sure of the answer.
On the one hand, we do have a presumption of innocence. And if the Duke lacrosse case taught us anything, it is that schools look very bad if they move quickly to suspend student-athletes only to have the allegations and the legal case prove to be a complete fantasy (put aside whether the players did anything inappropriate-although-not-illegal). Is it fair to the player to lose a big chunk of his season because of charges that could prove unfounded? Should we place it in non-athletic terms--would a non-athlete-student in the same position as Wittels be suspended from school? If not, perhaps the athlete should not be suspended from the team. (I feel the same way about professional leagues getting all worked up about players' off-field misconduct).
On the other hand, playing for the school's baseball team is different than being one of 42,000 students. How does it look to have a player representing your institution of higher learning who is facing a charge of sexual assault? And there is a certain degree of fame and prestige enjoyed by a star athlete that is not enjoyed by an ordinary student. How does the alleged victim feel to see Wittels continuing on with his educational and athletic career, including games on ESPN? (Similar issues were raised in the controversy over an alleged sexual assault by a Notre Dame football player, who continued playing while the school dragged its feet and the student ultimately took her own life). The accusation of a crime does place the accused in a different legal position than someone who has not been accused of a crime (even if he has not been convicted). So perhaps a school/team should take action against the player who occupies that different legal position. Or should it depend on the school's assessment of Wittel's culpability--and how does the school make that assessment?
I genuinely do not know where I fall on these questions, so I throw them out there for consideration. Posted By : Howard Wasserman
The NFL's Unfair Labor Practice Claim & Article LVIII(3)(A) of the CBA
Message posted on : 2011-02-17 - 08:00:00
By now, most football fans know that the NFL has filed an unfair labor practice claim against the NFLPA, alleging that the NFLPA has consistently failed to negotiate with the league in good faith. Most media reports, however, fail to offer a meaningful explanation about what the NFL stands to gain by filing this grievance.
Here's my hunch: The NFL grievance is about trying to delay the NFL players' right, without decertifying prior to the expiration of the CBA, to bring an antitrust challenge against certain NFL practices. This is based my reading of a particular provision buried on p. 238 of the NFL Collective Bargaining Agreement: Article LVII(3)(A).
Following the expiration of the express term of this Agreement ... if the NFLPA is in existence as a union, the Parties agree that none of the Class Members ... nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and the NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later.
Thus, pursuant to Article LVII, Section 3(A), the event of impasse would trigger the start to a six month waiting period before the NFLPA, if it is in existence, could attempt to challenge the NFL salary cap, draft and other labor-side restraints under Section 1 of the Sherman Act.
As a matter of law, however, impasse cannot occur where the party seeking to benefit from declaring impasse has bargained in bad faith. Therefore, if the NFL can show that the union is engaged in some sort of "bad faith" bargaining, impasse would be delayed, and so too would be the players rights under the collective bargaining agreement to bring an antitrust suit against the league's draft, salary cap and other restraints.
Of course, the thought of the NFLPA bringing an antitrust challenge against certain league-wide practices is a real fear for NFL team owners. Indeed, the NFL players, after a failed strike, implemented this strategy successfully in the case McNeil v. Nat'l Football League, 790 F.Supp. 871 (D. Minn. 1992).
Posted By : Marc Edelman
New Sports Illustrated Column: Could Michael Jordan become Player/Coach?
Message posted on : 2011-02-16 - 14:18:00
Recently, Henry Abbott of True Hoop had a terrific piece looking at the on-court challenges a soon-to-be 48-year old Michael Jordan -- who is now practicing with the Charlotte Bobcats, which he owns -- would have if he sought to return to the NBA, as has some have speculated he might want to do.
In a new SI column, I write about the legal obstacles of there being an owner/coach in the NBA. Here are a couple of excerpts:
* * *
There are a variety of reasons why a player/owner would prove problematic.
For one, Jordan would hold membership in the two groups that are negotiating a new collective bargaining agreement. While owners and players are not necessarily competitors, since they need each other for the NBA to exist, they do hold differing views about various matters that are subject to collective bargaining. Those matters include limits on player salaries, access to unrestricted free agency and distribution of league revenue. Jordan, as player/owner, would represent both players and owners, each perhaps skeptical of his loyalty and stance on issues -- would he be "labor" or "management"?
* * * A second concern would arise when Jordan the owner "negotiates" a contract with Jordan the player, with Jordan the owner paying Jordan the player. A negotiation between one's right and left arm normally doesn't qualify as "arms-length" bargaining. To be sure, Bobcats general manager Rod Higgins would play a key role in the Jordan-Jordan negotiation and Jordan could simplify the situation by agreeing to take the league minimum for veteran players ($1.2 million). Still, the players' association, which has a stake in seeing player salaries go up, may disfavor a player taking less than his market value.
A third concern would center on game-related decisions that might awkwardly amplify Jordan's dual role as owner/player. For instance, what happens if Bobcats coach Paul Silas doesn't play Jordan as much as Jordan believes he should play? Would it be appropriate for Jordan the owner to fire the coach? Or how about if Jordan's teammates don't pass him the ball enough -- would those players soon find themselves on the bench or on other teams?
A fourth concern would relate to precedent: If the NBA allows Jordan to be owner/player, would that set the table for other super rich players, such as LeBron James or Kobe Bryant, to buy equity stakes in their teams? . . .
* * *
The NBA and players' association have contemplated these concerns and include in the current CBA language that would generally prevent an owner from being a player and vice versa. Under Article XXIX, Section 8, "no NBA player may acquire or hold a direct or indirect interest in the ownership of any NBA team." However, the
clause allows a player to own shares in any publicly traded company that directly or indirectly owns an NBA team. As a result, for Jordan to own and play for the Bobcats, he would have to convert his ownership interest to that of owning a publicly traded company that owns the Bobcats. While that type of transaction is possible, it is also complicated and would require, among other steps, registration with the Securities and Exchange Commission, an initial public offering and NBA approval of the Bobcats' new ownership structure.
Congratulations to the all of the students who competed in the 4th Annual National Baseball Arbitration Competition at Tulane Law School.We had an incredible competition this year, featuring teams from law schools across the country, including Harvard, Duke, UVA, Fordham, William & Mary, Cardozo, Notre Dame, and Georgia.Following the competition, we also had a mini-symposium featuring (as one commenter to my previous post put it) "a monster assembly of baseball guys." A special thanks to Armando Velasco, T.J. Henry, and the members of the Tulane Sports Law Society for all of your hard work in putting this competition together.
And, a special congratulations go out to the winners of the competition.Here they are…
Semifinalists:William & MaryLaw School (R.C. Rasmus, Laura Brymer and Mike Bagel) and Arizona StateUniversity College of Law (Taylor Alberstadt and Nick Forner)
Second Place:University of Denver College of Law (Scott Neckers and Matt Hofmeister)
Winner: University of Miami School of Law (Jason Sosnovsky and Mark Lesorgen)
Look forward to seeing many of you down in New Orleans for next year's competition…. Posted By : Gabe Feldman
What's Next in American Needle v. National Football League?
Message posted on : 2011-02-14 - 14:18:00
For those following the American Needle case, I just posted on SSRN a draft of my newest law review article, discussing the challenges that American Needle will likely face on remand. A draft of the article is available here. Posted By : Marc Edelman
Clotfelter on Big Time College Sports
Message posted on : 2011-02-13 - 17:38:00
Here is a nice synopsis of Big-Time Sports in American Universities, by Charles Clotfelter of Duke University, newly published by Cambridge University Press. The book takes a serious, empirical examination of the value, benefits, and defects in big-time American college sports. Posted By : Howard Wasserman
Sunday Sports Law Links
Message posted on : 2011-02-13 - 07:00:00
* Washington Redskins owner Daniel Snyder is suing the Washington City Paper for libel, claiming that the paper used "anti-Semitic imagery, half-truths, and innuendo to smear or defame him." Andrew Beaujon and Erik Wemple of TBD have a good analysis of the lawsuit. Libel is frequently hard to prove given that libelous statements can't be mere opinions and truth is always a defense; the hurdle is only elevated for public figures (like Snyder) who have to show actual malice, which means intentionally trying to defame as opposed to merely doing so. With these hurdles, Beaujon and Wemple conclude that Synder's claim is unlikely to prevail. The original Washington City Paper article that sprung this litigation was titled The Cranky Redskins Fan's Guide to Dan Snyder. My thanks to Alan Milstein and Bill McCann for these links.
* I recently blogged about Robert Burton, the UConn donor who wanted his $3 million back because he felt ignored by UConn's athletic director as the school interviewed prospective football coaches. After meeting with UConn athletic officials, Burton has decided to let UConn keep the money without a fight (and it was a fight that he likely would have lost, since the $3 million donation was apparently made without conditions). Marc Isenberg had a funny line about this: "Good move by UConn to repair some of the fallout. In related news Burton will call the offensive plays from a headset installed his suite."
* Daniel Fitzgerald of Connecticut Sports Law has a terrific article on sports car law in Connecticut. I also think Dan gets credit for coming up with the phrase, and possibly new section of sports law, now to be known as "sports car law".
* The U.S. Court of Appeals for the 11th Circuit recently dealt a defeat to a group of retired NFL players who had sued the league and the National Football League Players Association, for negligence, negligent misrepresentation and breach of fiduciary duty. Ashley Trent of Inside Counselhas the story on Atwater v. NFLPA.
* The College Sports Council is challenging the National Women's Law Center over a more rigorous--or more exclusionary, depending upon how you see it--application of Title IX to high school sports.
* Elliot Solop of the The Sports Tomato has an excellent piece on
whether an NFL lockout would impact the publishing of Electronic Arts' John Madden Football, which has an exclusive deal with the NFL and NFLPA.
* Zak Kurtz of Sports Agent Blogexplains why the NFL seems to have won a mediation decision by University of Pennsylvania Law Professor and NFL special master Stephen Burbank on whether the league can keep television revenue during a lockout. Both the NFLPA and NFL are claiming victory, but the numbers suggest that the NFL largely won.
* A reminder that Seton Hall Law School's sports law symposium is on Tuesday. I'm looking forward to it. Posted By : Michael McCann
Update on White Sox Kickback Scandal
Message posted on : 2011-02-12 - 13:20:00
As I first discussed here back in November and Mike followed-up with in December, the White Sox organization suffered a PR blow when a Federal grand jury indicted a former Chicago White Sox executive and two team scoutson charges that they took kickbacks totaling approximately $400,000 from signing bonuses and contract buyouts paid to secure 23 prospective players between December 2004 and February 2008.
Yesterday, David Wilder, most recently the White Sox Director of Player Personnel, pleaded guilty to one count of mail fraud. To generate the payoffs in the form of kickbacks, Wilder, along with two White Sox scouts (also indicted) would misrepresent the amount of money needed to sign Mexican and Latin American prospects. As a result, the White Sox paid artificially high amounts for players' rights as well as inflated signing bonuses. Federal sentencing guidelines could result in up to four years in prison for Wilder, but his plea agreement allegedly contains a recommendation from the prosecution for only two years in prison. Posted By : Tim Epstein
Gaming the Super Bowl Litigation
Message posted on : 2011-02-12 - 08:27:00
Slate has a nice piece (including an interview with SCOTUSBlog's Tom Goldstein) gaming out the options for fans seeking some sort of compensation over Super Bowlseating. It now appears that there are three groups of disgruntled fans: 1) Those denied seats altogether; 2) Those moved into nose-bleed seats; and 3) a group of about 1100 fans who were delayed coming in because several gates were not available because of weather problems. And there are three options: 1) $ 2400 and a transferable ticket to next year's Super Bowl; 2) a non-transferable ticket to any future Super Bowl; and 3) Join the lawsuit (which Goldstein believes will settle for about what the NFL is already offering). The piece then goes on to suggest the best option for various groups of fans.
It also includes an interview with Michael Aventatti, the attorney representing the class-action litigants. He explains that the $2400 offer was not a good deal, since tickets were going for far more than face value (and the NFL knew this), so tickets and accommodations ran more than $ 2400. We knew that, which is why the unseated fans have a good claim for breach of contract. The nosebleed fans less so--their only damages would seem to be the difference in the value of where they were seated as opposed to what they expected to get. And the fraud claim appears to be based on the NFL knowing before Sunday that the seats would not be available--although it is not clear that the league could have done anything about that before then (a key element to the fraud claim). Posted By : Howard Wasserman
Leverage in Negotiations
Message posted on : 2011-02-11 - 21:06:00
Kobe Bryant's comments this week about playing in Italy if the NBA has a lockout highlight a key difference between bargaining leverage for NBA players and NFL players: some NBA players, including stars, will be able to recoup a substantial portion of their lost NBA income during a lockout by doing what they do best -- playing pro basketball -- whereas few NFL players will be able to recoup a substantial portion their lost NFL income by playing in the Canadian Football League, United Football League or Arena Football League.
The CFL is not likely to pay too well. The salary cap for each CFL team is $4.25 million (to put that number in perspective, the salary cap for each NFL team in the last capped season -- 2009 -- was $130 million). The average CFL salary is $50,000, in contrast to the average NFL salary of $1.9 million and minimum NFL salary of $325,000 (NFL practice squad players normally earn $88,400). While $50,000 would be a decent salary for the average person, it seems pretty low for someone who is exposing his body to potentially catastrophic injury on every play, particularly for someone who is accustomed to earning much more for that risk. Also, there would be a bit of a learning curve for NFL players in the CFL, which has different rules, such as 3 downs instead of 4 downs and 20 yard end zones instead of 10 yard end zones.
UFL salaries are a little bit better:
Also, for a terrific piece on see Posted By : Michael McCann
New Sports Illustrated Column on Barry Bonds Case and Impact of Greg Anderson Recording
Message posted on : 2011-02-11 - 16:03:00
I have a new SI column on the Barry Bonds trial and how a hearing today will determine whether a recording of a pivotal conversation between Bonds's former trainer, Greg Anderson, and business partner, Steve Hoskins, is deemed admissible or hearsay. In the conversation, Anderson talks about providing Bonds with The Clear (THG).
Here is an excerpt of the column:
* * *
Even if the recording is admissible, Bonds's lawyers could scrutinize the quality and authenticity of the recording as well as the specificity of Anderson and Hoskins's remarks. They are also likely to fuel skepticism as to Bonds possessing any knowledge of the conversation.
Bonds's lawyers could also question whether Bonds understood that the Clear was in fact a "steroid", since it was not specifically banned by Major League Baseball at the time, nor was it specifically classified by the federal government as an illegal steroid. While such a strategy may seem like opportunistic word parsing, keep in mind the wording of the criminal counts in the Bonds indictment (which earlier this week was condensed to five counts, though the exact same penalties remain -- if convicted on all counts, Bonds, as a first time offender, would likely serve between 15 and 21 months in prison). Count One claims that Bonds knowingly lied under oath during grand jury questioning and specifically during this exchange:
Government lawyer: "Let me be real clear about this. Did he [Anderson] ever give you anything that you knew to be a steroid?"
Bonds: "I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that."
Government lawyer: "Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroids that he gave you?"
Bonds: "Not that I know of."
With those statements in mind, Bonds could insist that he did not know the Clear was a steroid. Indeed, Bonds could argue, why should he have presumed that the definition of a steroid in a grand jury proceeding automatically included the Clear or any substance that evades detection in a urine test? Put another way, Bonds and his lawyers could portray "steroid" as an ambiguous word in the context of a new cocktail substance like the Clear and thus vulnerable to incompatible interpretations. Following that logic, Bonds may not have knowingly lied in response to questions about steroids when the questioner (government prosecutor) and answerer (Bonds) assumed different meanings of the operative word: "steroids".
As a follow-up to Mark's post last month, the Sport and & Recreation Law Association ("SRLA") conference program has now been posted. There are a number of interesting topics on the SRLA schedule. As a first-time attendee, I am looking forward to it. I will provide a re-cap after the conference, highlighting some of the presentations I found most interesting. Posted By : Ryan M. Rodenberg
New Sports Illustrated video on Super Bowl ticket lawsuit agianst the NFL and Cowboys
Message posted on : 2011-02-11 - 09:00:00
Here's my Sports Illustrated take on the Super Bowl ticket lawsuit against the NFL and the Cowboys:
Posted By : Michael McCann
4th Annual National Baseball Arbitration Competition
Message posted on : 2011-02-10 - 21:00:00
The 4th Annual National Baseball Arbitration Competition, hosted by the Tulane Sports Law Society, began this morning. We have an incredible group of competitors this year, featuring law schools from across the country. We also have a great group of guest arbitrators, including the following:
Michael Weiner, Executive Director and General Counsel, Major League Baseball Players Association.
Jon Fetterolf, Partner, Williams & Connolly LLP in Washington D.C.
Larry Silverman, Senior Vice President and General Counsel, Pittsburgh Pirates.
Carter DeLorme, Partner, Jones Day in Washington D.C.; performs salary arbitration work for the Boston Red Sox and Texas Rangers.
Clark Griffith, Attorney; AAA Arbitrator; former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties.
Fernando Tamayo, former International Scouting Coordinator for the Boston Red Sox.
Darren Heitner, CEO, Dynasty Athlete Representation; Chief Editor, SportsAgentBlog.com.
Jorge Arangure Jr., Senior Writer, ESPN The Magazine.
Josh Byrnes, Vice President of Baseball Operations, San Diego Padres.
David P. Fidler, Co-author, Stealing Lives: The Globalization of Baseball and the Tragic Story of Alexis Quiroz.
Following the competition, we will be hosting a half-day symposium at Tulane Law School featuring our guest arbitrators. The symposium is open to the public, so feel free to stop by if you are in the area. Here is the schedule of events:
Friday, February 11th, Tulane Law School Baseball Symposium
2:00-2:05pm Trophy Presentation and Opening Remarks
2:05-2:55pm Mock Salary Arbitration
Representing the Team: Jon Fetterolf Representing the Player: Josh Byrnes Arbitrator: Larry Silverman
3:00-4:00pm MLB in the Dominican Republic: Taming the Wild West of Professional Baseball
Panelists: Jorge Arangure, David P. Fidler, and Fernando Tamayo Moderator: Darren Heitner
4:10-5:10pm The Upcoming CBA: 16 Years of Labor Peace and Counting? P anelists: Josh Byrnes, Clark Griffith, Larry Silverman, and Michael Weiner Moderator: Professor Gabe Feldman
5:10-5:15pm Closing Remarks by Professor Gabe Feldman Posted By : Gabe Feldman
Roger Goodell's Recruitment of College Players in 1984 and Tortious Interference with Contractual Relations
Message posted on : 2011-02-10 - 14:12:00
Jimmy Golen and I recently discussed a very interesting passage from Peter King's Sports Illustrated cover story on Roger Goodell titled The Man of the Hour:
* * *
Goodell's first project upon being hired full-time by Rozelle in 1984 was to persuade college players not to sign with the rival United States Football League.
Goodell and longtime Cowboys executive Gil Brandt traveled to bowl games and All-America gatherings to argue that the USFL's money was fool's gold. "We had an 800 number set up to ring into Roger's office, and gave it to all the players," Brandt says. "He'd never lie to 'em. He'd never tell a fourth-round guy he was going in the first round. But I think we saved some guys from signing in the USFL."
At a black-college all-star game in 1985, Goodell laid a pro-NFL pitch on a little-known receiver out of Mississippi Valley State-Jerry Rice. He signed with the 49ers.
* * *
Like Jimmy, I wonder whether the USFL might have entertained the notion of challenging the legality of Goodell and Brandt's actions (which I assume other NFL employees were engaged in as well).
The specific claim I'm thinking of is tortious interference with contractual relations. That claim refers generally to when one business economically harms a competing businesses' contractual or customer relationships, and engages in that harmful behavior on purpose.
Tortious interference obviously doesn't mean that two companies can't compete with each other -- the absence of competition would be harmful to consumers and inconsistent with federal and state antitrust laws. But tortious interference does mean that when one company intentionally induces customers of a competing company to breach a contract, or when that company intentionally makes false statements about a competing company, that can cross the line into tortious inference.
But here the NFL could have argued a number of points against a tortious interference claim and I think would have prevailed. For one, the amateur players in question were not yet in the league (and thus had not yet signed contracts with USFL teams or even negotiated a prospective contract with a USFL team). The NFL could have also maintained that it was merely recruiting the available labor population in colleges -- much like investment banks compete with each other, rather than coordinate with each other, in recruiting college business students and MBA students, and physicians' groups compete with each other in recruiting prospective physicians and so on. In fact, had the NFL not competed with the USFL in the recruitment of college players, some commentators might have surmised there was collusion between the two leagues in the recruitment of college players (which they may have accomplished in another way through age/experience eligibility restrictions, but that's a topic for another day). I also suspect the USFL probably tried the very same tactic in attempting to dissuade the very same college players from signing with NFL teams.
Still, there's that gray area of wrongly undercutting a rival's business that can be hard to distinguish from appropriate
-- and socially desirably -- competitive conduct.
What's Next in American Needle v. Nat'l Football League
Message posted on : 2011-02-10 - 11:00:00
As most blog readers know, the Supreme Court ruled on May 24, 2010 that the National Football League's trademark licensing practices are subject to review under Section 1 of the Sherman Act. This ruling reversed an earlier decision by the U.S. Court of Appeals for the Seventh Circuit, which had held that the National Football League's trademark licensing practices are exempt from Section 1 scrutiny. r
Posted By : Marc Edelman
Jered Weaver and the Angels
Message posted on : 2011-02-10 - 07:39:00
Jered Weaver and the Los Angeles Angels of Anaheim conducted their arbitration hearing yesterday before the arbitration panel of Margaret Brogan, Robert Herzog, and James Oldham. Weaver requested $8,800,000, and the Angels offered $7,375,000. Although Weaver only won one more game than he lost last year, he did lead the Major Leagues in strikeouts with 233. He also posted a strong 3.01 ERA. Because I have not had time to really considered his comparables, I will have to add that in the comments later. Margaret Brogan is 4-4 as a panel member, and James Oldham is 1-1. Herzog is also 1-1 after his panel gave the nod to Ross Ohlendorf. Weaver made $4,625,000. I am going to lean towards the Angels here, but as I mentioned above I have not yet looked carefully at the case. Posted By : Ed Edmonds
The Legal Issues Behind the NFL CBA Negotiations
Message posted on : 2011-02-09 - 15:45:00
I have a new column up at the Huffington Post that analyzes the key legal issues behind the NFL-NFLPA collective bargaining negotiations. Here's an excerpt. You can find the complete column here.
Have professional athletes decertified their union in the past?
Yes. On November 6, 1989, the Executive Committee of the NFLPA notified the NFL Management Council that it was abandoning all collective bargaining rights. On December 5, 1989, player representatives from the then-24 NFL teams met and unanimously voted to decertify, thus ending the NFLPA's status as the players' collective bargaining representative. The NFLPA then re-formed as a voluntary professional association. The "new" NFLPA enacted new by-laws which prohibited the NFLPA or its members from engaging in collective bargaining with the NFL.
Was the 1989 decertification successful for the NFLPA?
Very. Following decertification, a small group of players filed an antitrust suit challenging the restrictive "Plan B Free Agency" rules that the owners unilaterally implemented (as their last, best offer) after the expiration of the CBA (McNeil v. NFL). A jury found that Plan B was an unreasonable restraint of trade and awarded damages to four of the players, ranging from $50,000 to $240,000. Players then filed a class action suit (White v. NFL) challenging Plan B and all free agency restrictions (including the draft). At that point, the players had tremendous leverage, and the parties agreed to settle the litigation. The settlement -- which included the creation of real free agency for the players -- was then embodied in the new CBA.
How long did it take for the NFLPA to achieve their victory when they decertified in 1989?
The players decertified in December of 1989 and the jury reached its verdict in the McNeil case in September of 1992. A new CBA was signed in February of 1993.
Decertification has been referred to as the "nuclear option," the "silver bullet," the "doomsday weapon," and a "tender contemplation on duty and the crippling weight of expectancy" (that last one may have been about The King's Speech). Is decertification really that powerful?
Yes and no. Yes, because it subjects the owners to antitrust attack and treble damages. Even the mere threat of decertification can help shift collective bargaining leverage in favor of the union.
No, for two reasons: First, depending on the timing of the decertification, the NFL will try to challenge the decertification as a "sham." In essence, this argument is that the decertification is not "real" -- it is being done merely to improve the players' bargaining position, and in reality the NFLPA is still acting as a union behind the scenes (and, they will point to the decertification and re-certification in 1989 as further proof that it is being used as a bargaining tactic rather than for any genuine reason). The NFL will argue that the union is still representing the players and still bargaining on behalf of the players, and therefore the labor exemption should continue to apply.
Second, the NFL will argue that the NFLPA's sham decertification violates its duty to bargain with the NFL in good faith.
(The NFL made both of these arguments in 1989, and was unsuccessful on both counts.)
And, even if decertification is successful, it is only the first step in a lengthy process. Decertification merely opens the door for the players to bring an antitrust suit against the NFL and its teams. The players will then have to fund a potentially long and expensive antitrust suit -- an antitrust suit they could lose.
Posted By : Gabe Feldman
Lawsuit in Super Bowl ticket debacle
Message posted on : 2011-02-09 - 14:26:00
As one of the commenters on my earlier post noted, a class action has been filed in federal court by more than 1000 Super Bowl ticket holders against the NFL and Cowboys owner Jerry Jones, among others. The action is in federal court under the Class Action Fairness Act, which allows for federal jurisdiction on minimal diversity (one of the named plaintiffs is from Texas). There actually are two groups of plaintiffs: 1) A group of about 400 or soticket holders who had tickets for what would have been temporary seating that could not be completed because of weather and safety concerns and 2) A group of Cowboys personal seat license holders who, as part of the license, were promised the chance to purchase tickets for the Super Bowl, but were assigned inferior seats with poor sight lines and no "reasonable" view of the famed overhead scoreboard. The claims are for breach of contract, breach of covenant of fair dealing, fraud, and violations of the Texas Deceptive Trade Practices Act; they seek damages, punitive damages, and treble damages under the statute.
The lawsuit comes despite the NFL's escalating efforts to settle by offering tickets to future games, as well as special benefits following Sunday's game, including the chance to go onto the field. My contracts colleagues suggest that, beyond reliance damages actually expended and maybe the difference in ticket value between the expected seat and what they received, plaintiffs are going to have a hard time quantifying actual monetary harm from "loss of enjoyment" of the game. Plus, how does the court consider that these fans also got to go onto the field? Plus, I am pretty certain the fraud claims are not sufficiently pled under FRCP 9(b). And the whole thing may not work as a single class, since the plaintiffs seem to fall in two very distinct groups with very different facts and very different damages.
Is this why people hate lawyers? Posted By : Howard Wasserman
Hearing Number 1 - Ross Ohlendorf and the Pirates
Message posted on : 2011-02-09 - 09:48:00
Ross Ohlendorf and the Pittsburgh Pirates grabbed the honor for participating in the first arbitration hearing in 2011 yesterday in Phoenix. Ohlendorf is seeking a raise from $439,000 to $2,025,000. The Pirates countered with an offer of $1,400,000 establishing a midpoint of $1,712,500. The arbitration panel consisted of three veteran arbitrators, Robert Herzog, Fredric Horowitz, and Steven Wolf.
The Pirates' pitcher is a Super Two and a graduate of Princeton. While at Princeton, Ohlendorf wrote a thesis titled “Investing in Prospects: A Look at the Financial Successes of Major League Baseball Rule IV Drafts from 1989 to 1993.” Ohlendorf finished 2010 with two years and 139 days of service time. The cutoff this year was two years and 122 days.
Ohlendorf was 1-11 last year in his 21 starts for Pittsburgh. The lone win was against the Philadelphia Phillies on July 2 at PNC Park. Ohlendorf pitched a total of seven innings, giving up five hits with eight strikeouts and one walk. Joel Hanrahan pitched the eighth inning and Octavio Dotel picked up his 18th save with a spotless ninth inning. Ohlendorf did not pitch after August 23 when the Pirates decided to shut him down after he strained a muscle in his throwing shoulder. Ohlendorf also missed some time in April due to a back injury.
Ohlendorf was drafted by the Arizona Diamondbacks in the fourth round of the 2004 draft. He was traded by the Diamondbacks on January 9, 2007, along with Alberto Gonzalez, Steven Jackson and Luis Vizcaino to the Yankees for Randy Johnson and cash. He made his debut with the Yankees later that year and pitched in six games. After pitching in 25 games with a 1-1 record and a 6.53 ERA, he was sent on July 26, 2008, by the Yankees along with Jeff Karstens, Daniel McCutchen, and Jose Tabata to the Pirates for Damaso Marte and Xavier Nady. Ohlendorf lost three games with no wins in five games for the Pirates. He managed to give up 36 hits in 22 and 2/3 innings while walking 12 and striking out 13. He ended up with a 2.118 WHIP! In 2009, however, he had an 11-10 record with a 3.92 ERA in 29 games started with 176 2/3 innings pitched and 109 strikeouts compared to 53 walks. His WHIP was 1.234.
His career statistics are 13 wins and 25 losses, 4.40 ERA, 86 games, 55 games started, 354 innings pitched, 362 hits allowed, 48 home runs allowed, 130 walks, 246 strikeouts, and a 1.390 WHIP.
Here is a list of the other Super Two pitchers for this year - Burke Badenhop, Florida Marlins (RHP-RP), Dana Eveland, Los Angeles Dodgers after the Pittsburgh Pirates failed to tender him (LHP-SP), Armando Galarraga, Arizona Diamondbacks via trade from the Detroit Tigers (RHP-SP), Luke Hochevar, Kansas City Royals (RHP-SP), Jim Johnson, Baltimore Orioles (RHP-RP), Kyle Kendrick, Philadelphia Phillies (RHP-SP), Jensen Lewis, Cleveland Indians (RHP-RP), Darren O'Day, Texas Rangers (RHP-RP), Felipe Paulino, Houston Astros (RHP-SP), Chris Perez, Cleveland Indians (RHP-CL), Sean White, Colorado Rockies after the Seattle Mariners failed to tender him (RHP-RP), and Brad Ziegler, Oakland A's(RHP-RP).
The one name on the list that jumps off the page to me as a comparable is Felipe Paulino. In 14 starts last year, Paulino had a 5.11 ERA and a 1-9 record. He was traded by the Astros to Colorado for Clint Barmes on November 18, 2010. He signed with the Rockies for $790,000 on January 18, 2011. His career statistics are 6 wins and 21 losses, 5.83 ERA, 47 games, 34 games started, 208 1/3 innings pitched, 243 hits allowed, 29 home runs
allowed, 90 walks, 187 strikeouts, and a 1.598 WHIP. So, his career statistics are generally below those of Ohlendorf because he has pitched less. However, the Pirates could use Paulino to support their figure.
I will detail a bit more in the comments section including the historical figures for the three arbitrators. I think that they will have a hard time choosing Ohlendorf's figure because of the win-loss record last year and the injuries. Posted By : Ed Edmonds
Baseball Salary Arbitration
Message posted on : 2011-02-08 - 13:51:00
Thirty-four players and teams exchanged numbers this year in salary arbitration if you include Santiago Casilla and the San Francisco Giants, who announced a settlement on the day of the exchange of figures. Apparently, Casilla and the Giants had an agreement in place two days earlier, but needed to finalize the deal. They seem to have exchanged numbers just to be sure that they preserved their rights until everything was final.
According to my research to date, 21 of the 34 have reached an agreement leaving 13 cases still active. Of the 21, five are multiyear deals; five settled above the midpoint; three settled at the midpoint; and eight settled below the midpoint. The five multiyear deals are Billy Butler and the Royals, Johnny Cueto and the Reds, R. A. Dickey and the Mets, Jason Hammel and the Rockies, and Wandy Rodriguez and the Astros. Settlements above the midpoint include Craig Breslow and the A's, Jason Frasor and the Blue Jays, Miguel Montero and the Diamondbacks, Mike Napoli and the Rangers, and Darren O'Day and the Rangers. The three midpoint settlements are Francisco Liriano and Kevin Slowey with the Twins and Andres Torres and the Giants. The settlements that are below the midpoint include Casilla, Frank Francisco and the Rangers, Hong-Chih Kuo and the Dodgers, Kameron Loe and the Brewers, Javier Lopez and the Giants, Angel Pagan and the Mets, Ian Stewart and the Rockies, and Edison Volquez and the Reds.
Napoli's situation is interesting because he was traded twice after exchanging figures with the Los Angeles Angels of Anaheim. The Angels traded Napoli to the Blue Jays who packaged him in a deal to the Rangers. That deal is part of what is triggering Michael Young to ask out of Texas.
Jon Heyman of Sports Illustrated has tweeted that Ross Ohlendorf and the Pittsburgh Pirates have the first hearing of 2011 today. I will be posting something later about Ohlendorf, who is a Super Two. Posted By : Ed Edmonds
Missing seats, Super Bowl tickets, and contract damages
Message posted on : 2011-02-06 - 22:36:00
The NFL and the people who run Cowboys Stadium built a lot of temporary seating for the Super Bowl (apparently to set an attendance record by exceeding 105,000), but approximately 1250 seats could not be installed. The league found alternative seating for 850 of those fans, but not for the remaining 400, who were turned away with a refund of triple their ticket's face value--$2400.
Here is a contract remedy question: Are these fans entitled to more and could they successfully sue the NFL for it? Suppose Fan A spent more than $1600 on travel, hotel, etc. He likely spent that money only because he had a ticket to the game and expected to be able to attend, and the NFL knew he will and must make those expenditures to attend the game. So are those recoverable reliance damages? Suppose Fan B paid more than the $ 800 face value because he had to buy the ticket through a broker/scalper. The league controls who purchases tickets and must be aware that many publicly available seats are sold to people who are going to resell them at at least a small profit. I suppose a court might deny recovery there because the beyond-cost resale is against public policy. Still, could Fan B make that case?
Contracts/Remedies people, help me out.
Update: The league is now offering fans one of two packages: 1) $ 2400 (triple face value) plus tickets to next years' Super Bowl, including air fare and accommodations or 2) Tickets, including air fare and accommodations, to any future Super Bowl. Apparently fans balked at the initial offer made Sunday oif triple face value because most spent more than that on tickets, travel, and accommodations.
So a different remedy question: Did the NFL actually go beyond what it would have been on the hook for in litigation? It seems clear Fan A could have sued for all reliance damages (ticket cost, accommodations, etc.). Could Fan A also have gotten tickets to a future Super Bowl, arguing that he was denied the unique experience of attending the game?
Further Update: The lawsuit (mentioned in the Comments) is a class action in California on behalf of more than 1000 fans. But this must include some of the fans who were given new seats. What more could the fans possibly get, especially the fans who were given alternate seating? They have not been damaged. And, just to get procedural: Is there jurisdiction in California? Is there a good forum non conveniens argument? And should California law (which allows for treble damages) apply? This one could get interesting. Posted By : Howard Wasserman
Did Lou Gehrig not die from Lou Gehrig's Disease?
Message posted on : 2011-02-06 - 15:41:00
Last August, The New York Times reported on a study in the Journal of Neuropathology and Experimental Neurology that suggested that brain trauma, particularly from repeated concussions, can cause a fatal neuro-muscular disease different from, although similar to, Amyotrophic Lateral Sclerosis ("ALS," commonly known as Lou Gehrig's disease). The study was based on studies of tissues from two football players and a boxer who had been diagnosed with ALS, but who had protein markings not associated with ALS.
Part of the new debate over concussions in football has touched on higher incidence of ALS in former NFL players, with the
Now comes word that Minnesota state Rep. Phyllis Kahn has introduced a bill
http://www.minnpost.com/braublog/2011/02/04/25491/gehrig_bill_would_free_yankee_stars_medical_data_for_als-concussion_probe Posted By : Howard Wasserman
Revisiting Electronic Arts' Exclusive Contract with the NFL and NFLPA
Message posted on : 2011-02-05 - 18:31:00
Back in 2004, I wrote about Electronic Arts snagging an exclusive licensing contract with the NFL and NFLPAto develop, publish, and distribute football video games featuring NFL players and teams. The 5-year, $400 million contract--the exclusivity of which resembles the exclusive NFL-Reebok contract that precipitated American Needle v. NFL--meant the end of other third-party publishers making NFL video games. Most notably, it meant that Sega's popular/arguably better and substantially cheaper NFL 2K series would be discontinued while Electronic Arts' John Madden Football would become the only NFL game in town.
Since then, the exclusive contract has been extended to 2012 and John Madden Football has been published each year, with annual updates to player rosters and, some would argue, only modest enhancements to game play. Nonetheless, each year's iteration of Madden Football tends to attract reasonably favorable reviews and sell quite well.
I wrote about this topic and related litigation in my Yale Law Journal article "American Needle. v. NFL: An Opportunity to Reshape Sports Law":
Although Electronic Arts' NFL games have sold well since 2004, they have attracted criticism for lacking innovation. Prices for Madden NFL games have also risen in the absence of competition from other NFL games. Those and other consequences underscore a central concern of section 1: an absence of competition will lead to an inferior market. The exclusive Madden contract is also the subject of Pecover v. Electronic Arts, a class action lawsuit recently brought by disenchanted video game players. The suit contains a number of claims, including those based on the Sherman Act. While neither the NFL nor the NFLPA is a party to the litigation, their exclusive contract with Electronic Arts could eventually face a section 1 challenge similar to the one confronted by the NFL in American Needle. Plaintiffs in such a claim would likely assert that interactive football video game software is a sufficiently discrete product market - a proposition supported by the U.S. District Court for the Northern District of California in Pecover. With some level of persuasion in light of the aforementioned data on prices and commentary on innovation, the plaintiffs could also maintain that Electronic Arts's exclusive contract for NFL video games produces more anticompetitive injury than procompetitive benefit.
In an interview with RipTen, Marc Eldeman also discusses these issues. Also, Pecover v. Electronic Arts remains in litigation, with its lead attorney confident that the plaintiffs will prevail.
I have little doubt the Madden series would be considerably better if [Electronic Arts] developer Tiburon had a competitor threatening it each year . . . Does Madden NFL 11 play better than Madden NFL 2005? Yes. There's no question that, over time, the gameplay has seen improvements thanks to better animations and smarter AI. But because there is no one else to stand up against it, Tiburon can schedule its innovations at its leisure. . . .
I don't expect Tiburon to start taking big chances and making more exciting and more substantial improvements. Why would they? And that's what sets the Madden series apart from the majority of other games. No one can rightly compete, because the NFL license is football and EA holds onto it tightly.
Sure, Microsoft owns the Halo license, but anyone has a right to make a first-person shooter and it can legitimately stand on its own. You can't make a football game without the NFL teams and players. It's an automatic fail.
To read the rest of Goldstein's article, click here. Posted By : Michael McCann
New Sports Illustrated Column: Will Mets Owner Fred Wilpon Settle Complaint from Madoff Victims?
Message posted on : 2011-02-04 - 19:08:00
I have a new SI column on the complaint filed by victims of Bernie Madoff against Mets owner Fred Wilpon, and what it means for the future of the Mets. The complaint was unsealed today. Here is an excerpt from the column:
* * *
A settlement might also benefit Wilpon from the standpoint of his coveted position as an owner of a major league franchise. For one, his team would likely be handicapped by a drawn-out litigation. There would be resulting uncertainties as to how much the team could spend, especially on players. For instance, how would the team approach contract discussions with prized shortstop Jose Reyes, who is scheduled to become a free agent after the 2011 season, if the team's owner might be forced to pay hundreds of millions of dollars in the Madoff fallout? Or how would the Mets approach trade offers for ace Johan Santana, who is due a guaranteed $72 million over the next three seasons? And would the team be forced to change its draft strategy to one that involves drafting a larger percentage of amateur players who would be cheaper to sign over more talented, but expensive prospects?
A settlement might also prove beneficial to Wilpon as a big league owner because of Picard's assertion that $90 million from Madoff's fund was used to finance the Mets. If true, such an assertion could cause substantial problems for Wilpon in his relationship with other big league owners and with the commissioner's office. It would mean that Madoff's victims -- many of whom lost their life savings to Madoff's Ponzi scheme -- effectively paid the salaries of million-dollar Mets players.
Empowered with his "best interests of the game" authority, and also with language from the franchise agreement Wilpon signed with Major League Baseball when he purchased the Mets, Selig could potentially discipline Wilpon and encourage him to leave the fraternity of big league owners -- a move that could be facilitated if other big league owners shared the view that Wilpon should not be among them. . . .
* * *
To read the rest, click here. Posted By : Michael McCann
NBA Legend Oscar Robertson Joins Ed O'Bannon Lawsuit against NCAA
Message posted on : 2011-02-03 - 23:39:00
Ed O'Bannon's class action lawsuit against the NCAA, which centers on the NCAA's use and licensing of former college players' images and other identifying characteristics, received a boost last week, when Hall of Fame guard Oscar Robertson - the only player in NBA history to average a triple-double (30.8 ppg, 12.5 rpg, 11.4 apg in 1961-62) -- joined O'Bannon as a plaintiff.
As Libby Sander's discusses in her Chronicles of Higher Educationarticle, the 72-year-old Robertson, who played at the University of Cincinnati until 1960, objects to the NCAA and his alma mater still licensing his image for their financial gain, without his permission, after all these years.
Just check out the Amazon page for his Donruss "American Legends" basketball card, depicting Robertson's days as a college player. Robertson receives no compensation for the cards (unlike his NBA cards).
Dan Wetzel of Yahoo! Sports has more on the Robertson addition and other new co-plaintiffs:
* * *
“The arrogance of the NCAA to say, ‘we have the right to do this,' … is what troubles me the most,” Robertson told Yahoo! Sports on Wednesday. “The University of Cincinnati gets a fee each time my picture is used on a card. I don't. When I played there, there was nothing like this ever agreed to.”
Robertson put his considerable reputation on the line Wednesday and joined a 2009 class action suit against the NCAA, first championed by former UCLA Bruin star Ed O'Bannon, as a name plaintiff.
* * *
Joining Robertson in the additional complaint is former Connecticut player Tate George, whose buzzer-beating shot over Clemson in the 1990 NCAA tournament has been resold in DVDs and featured in advertising campaigns for Vitamin Water, McDonald's, Burger King, Buick, Chrysler, and Cadillac. It was recently used in an online advertising campaign to sell Egg McMuffins.
Also now on board is former Ohio State football player Ray Ellis, who starred in the 1980 Rose Bowl. A number of games he participated in are being sold on commemorative DVDs or rebroadcast on the Big Ten Network.
* * *
To read the current complaint, click here. To read an SI.com column I wrote on the case, click here. Posted By : Michael McCann
Public Forum: MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY : Rescheduled
Message posted on : 2011-02-02 - 20:35:00
Wednesday, February 09, 2011
Location: 14 Vesey Street Time: 6:00pm Speakers:
* Joseph M. DeGuardia, Esq., Owner of Star Boxing, a boxing promotional company, and President of the Boxing Promoters Association;
* Michael DiMaggio, Esq., Associate, Collins, McDonald & Gann, P.C., dietary supplements and sports drug defense;
* Kurt Emhoff, Esq., Attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager;
* Paul Stuart Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee of the New York County Lawyers Association; and
* David N. Weinraub, Managing Partner, Brown & Weinraub, PLLC, New York UFC Lobbyist.
Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.
Sponsor: EMIPS Committee
FREE/RSVP: dlamb@nycla.org
Posted By : Paul Stuart Haberman
New Sports Illustrated Column on Lawsuits filed against New York Mets Owner
Message posted on : 2011-02-01 - 19:07:00
I have a new SI.com column on two significant lawsuits filed against Mets owner Fred Wilpon and others connected to the team. Here are some excerpts from the column:
* * *
The lawsuits center on Wilpon and his companies' investments with imprisoned Ponzi scheme artist Bernard Madoff and whether Wilpon and his associates knew, or should have known, of Madoff's fraudulent actions. If successful, the lawsuits could require Wilpon and other defendants to pay hundreds of millions in damages. Payment of those damages could threaten Wilpon's ability to own the Mets or at least to sustain a high team payroll. (The Mets had the fifth-highest payroll in 2010 at $133 million.)
* * *
Goldweber v. Sterling Equities is a class action lawsuit filed last July in the U.S. District Court for the Southern District of New York. The named plaintiff, Elyse Goldweber, is the widow of a former employee of Sterling Securities, a real estate investment firm that owns the New York Mets, among other businesses. Sterling Securities maintained a 401(k) retirement plan worth about $17 million, 92 percent of which was invested with Madoff, whose fraudulent actions wiped out most of the plan.
* * *
Goldweber's primary claim boils down to a "hear no evil, see no evil" charge: Wilpon and his associates should have questioned Madoff's investment strategy, especially given the numerous commentaries that had raised questions about Madoff's almost unbelievable returns. Had Wilpon inquired seriously into Madoff's remarkable track record, he would have developed suspicions that Madoff was not investing, but rather ripping off investors. . . .
* * * [Picard v. Katz & Wilpon} is known as a "clawback" lawsuit: If an investor "earned" any profits in a fraudulent enterprise up to six years prior to discovery of the fraud, those profits themselves can be deemed fraudulent. The underlying logic is that those profits were generated from fabricated numbers and from money that was stolen from other investors, many of whom are left with nothing in the Ponzi scheme. If deemed fraudulent, profits are then disgorged from the investor and re-distributed to victims of the fraud. Even an investor's principal investment can be "clawed back" if it was recovered in bad faith, such as recovering the principal within 90 days of a hedge fund filing bankruptcy (in the case of Madoff's fund, the bankruptcy filing date was Dec. 11, 2008, meaning that Katz and Wilpon needed to have recovered their principal no later than Sept. 11, 2008). The potential damages in a successful clawback lawsuit against Wilpon could go into the hundreds of millions.
* * *
While Major League Baseball has not weighed in on Wilpon's woes, it is in the best interest of the league and Wilpon's fellow owners that lawsuits do not become sources of league-wide embarrassment. To the extent that commissioner Bud Selig and the owners can encourage Wilpon to reach private settlements, they will likely do so.
The Major League Baseball Players' Association also has a stake in the matter. Considering that Wilpon pays the Mets' salaries, his financial wherewithal, and that of any
other Mets' owners, are matters of great significance for Mets players. While the league could provide the Mets with financial assistance if need be (or go a step further and take over control of the franchise, as occurred with the Texas Rangers last season), a financially-capable Mets ownership would prove the best outcome for all considered.
* * *
To read the rest of the column, click here. On Thursday, at 10:35 A.M. Eastern, I'll be on Sirius XM MLB Network Radio (XM Channel 175) to discuss the column with former Red Sox manager Kevin Kennedy and former Mets GM Jim Duquette. Hope you can tune in.
Posted By : Michael McCann
No Listen, No Money: Disenchanted Donor to UConn Athletics wants his $3 Million Back
Message posted on : 2011-01-28 - 00:00:00
Everyone knows that big money boosters influence athletic departments at big-time sports schools.
But what happens if a booster who gives a combined $7 million to a school feels as if his "suggestions" are being ignored by the school's athletic director?
Meet Robert Burton, a Greenwich CT-based printing industry executive who wants a $3 million donation returned from UConn. A leading reason for his demand is that he feels that he was denied an opportunity to comment on the school's football coaching search. He claims that he was blown off by the school's Athletic Director, Jeff Hathaway. Paul Caron of Tax Prof Blog has more and so does Dan Fitzgerald of Connecticut Sports Law.
I have 3 thoughts on this controversy:
1) To answer a question that some people are asking: unless Burton attached stipulations to his gift to the school, it's unlikely that he'll be able to get the money back. He probably already knows that. I suspect an alternate "victory" for him would be to embarrass the school and Athletic Director Hathaway, and to discourage other boosters and prospective boosters from contributing money to UConn (especially those boosters who would contribute with an expectation of gaining access in exchange).
2) Marc Isenberg had a good line about this dispute: "The unstated rules of boostering are now written."
3) While Burton is being criticized for claiming a bargained-for exchange between his donation and his ability to influence UConn athletics, and for trying to now take his gift back, I wonder if UConn and particularly Athletic Director Hathaway bear some responsibility, too.
After-all, if a school is going to accept an enormous gift from a donor whom the school presumably knows is only donating to have influence over the school's athletic program, then the school shouldn't later deny that donor a chance to share his thoughts. It wasn't like Burton was donating to help fund a new science building while having a passing interest in the sports program; he was donating to be a major player in UConn athletics. Don't take his money if that isn't going to happen.
Burton says in his letter that he wasn't looking for veto power over the hiring decision (which would have been an unreasonable request), only a chance to provide comments on the candidates. Would it have been that hard to let him comment and then give him the courtesy of listening?
Along those lines, isn't an informal duty of an athletic director to ensure that significant alums and boosters are treated well? It seems that if Hathaway had granted Burton a half hour meeting or even just a good phone conversation, it might have satisfied Burton's craving for influence, avoided this controversy, and preserved good relations with a generous donor. Posted By : Michael McCann
Sonny Vaccaro to speak at the University of San Francisco School of Law
Message posted on : 2011-01-27 - 21:00:00
Giuliana Garcia, Co-President of the University of San Francisco Sports & Entertainment Law Association, has let me know of an event next week that will surely be of interest to those in the Bay area: Sonny Vaccaro will be speaking at USF Law School on college sports and how college athletes are treated by the NCAA.
Here is Giuliana's message:
My student group, the USF Sports & Entertainment Law Association (SELA) is having Mr. Vaccaro come speak on the "business" of college sports on Tuesday February 1 at 5pm. As Mr. Vaccaro is prominently involved in recent lawsuits between student-athletes and the NCAA, such as the O'Bannon case, he will be coming to USF to speak about his experiences in these lawsuits, and talk about his viewpoints on how the NCAA needs to be transformed to better support student-athletes.
This event is being organized both by the Sports & Entertainment Law Association, as well as the graduate Sport Management Program at USF.
Should be a great event. More information, click on the flyer image above or contact Giuliana at giuliana.r.garcia[at]gmail.com.
Posted By : Michael McCann
Networking Event
Message posted on : 2011-01-27 - 19:26:00
The Sports Lawyers Association is hosting a great networking event on February 2, 2011 at 6pm at the Prudential Center before and during the Nets-76ers game. Jeff Gewirtz, the CLO of the NETs, and Charles Mierswa, the CFO of the Nets, will be giving a brief lecture during the event. This is a great opportunity for people in the New York area to meet Jeff and Charles and a variety of other people working in the sports industry.
Here are the details:
Posted By : Gabe Feldman
Shaquille O'Neal Delivers Sports Law Lecture at Harvard Law School
Message posted on : 2011-01-27 - 17:21:00
Boston Celtics center and future Hall of Famer Shaquille O'Neal recently spoke at Harvard Law School Professor Peter Carfagna's sports law class. He was accompanied by his agent, Perry Rogers, and by Celtics Assistant General Manager & Associate Counsel Mike Zarren.
Shaq is no stranger to higher education. After playing 8 seasons in the NBA, he completed his college degree from Louisiana State University in 2000 (and, in doing so, helped to show that players who leave school early can always go back and earn a degree). Five years later, Shaq earned his MBA from the University of Phoenix. He is now a handful of credits away from earning a Ph.D. in Human Resource Development, with aspirations for running for Sheriff in Central Florida once he retires from the league.
Shaq spoke to the law students about managing his brand and publicity rights issues, among other topics. Jill Greenfield of Harvard Law School's communications office has the story on Shaq's visit. Here are some excerpts:
* * *
In fact, O'Neal's management of his brand began well before he signed an NBA contract or any endorsement deals. When he was in high school, he created his own emblem based on his dunk style and trademarked it as the DUNKMAN, in case he ever got a shoe deal in the future.
* * *
In response to Carfagna's question about how his decisions have changed as he nears the end of his playing career, O'Neal discussed his evolving approach to basketball and how it affects his role on the Boston Celtics.
“When I first started playing basketball, I got all the blame when we lost, like a CEO. So I had to put myself in CEO mode and say, ‘If I'm going to get blamed, this is how we have to do things,'” O'Neal said.
“Now I'm in a consultant role. It would not have been advantageous for me to come here and try to take over the team at age 38 when we already have these good players. I already took care of my “me time.” I've been healthy and have done a lot. I have my championships. I'm retired as a CEO. Now I'm a consultant – my teammates know that if they need me, I'm right over here.”
* * *
To read the rest, click here. To read Geoff and my previous posts about Shaq being a deputy sheriff, click here. Posted By : Michael McCann
Sports Law Career Opportunity
Message posted on : 2011-01-27 - 16:31:00
For those looking to break into the sports law industry, the NBA is currently hiring an in-house legal counsel to work on matters relating to the WNBA and NBA D-League. In addition to traditional legal duties, the position would also entail some basketball-related functions such as managing each league's player draft. For more information, check out the job ad available here. Posted By : Nathaniel Grow
MMAdness Postponed...
Message posted on : 2011-01-26 - 13:55:00
Due to inclement weather in New York City, tonight's scheduled "MMAdness-Issues Surrounding the Legalization of Mixed Martial Arts in NY" forum at the New York County Lawyers Association building is postponed. Please check back for the new date. Posted By : Paul Stuart Haberman
Quebecois Roulette?
Message posted on : 2011-01-25 - 21:36:00
Should Tommy Morrison be Licensed to Box in Quebec if He Continues to Refuse HIV Testing?
Tommy (The Duke) Morrison, 48-3 (42 KOs), once one of the most exciting heavyweight contenders in the world between his all-American looks, explosive punch, and questionable chin, made headlines this past week when he announced that he will not submit to HIV and hepatitis testing in advance of a possible February 25, 2011 bout in Montreal against journeyman Eric Barrak. The reason that Morrison's position is troublesome is plain to anyone who is familiar with Morrison's history.Starting in 1996, Morrison was out of the ring for nearly 11 years after reportedly testing HIV positive in advance of a scheduled match in Nevada against Arthur (Stormy) Weathers.Some probably anticipated that the next time the boxing world would hear anything about Morrison would be after he eventually succumbed to AIDS.
Morrison, however, miraculously persevered and returned to ring on February 22, 2007 with a second round TKO of John Castle after West Virginia granted him a boxing license.He fought again nearly a year later, this time in Mexico, and scored a third-round TKO of Matt Weishaar.In the second incarnation of his career, Morrison has alleged that he is not, in fact, HIV positive, and may have never been.Indeed, Morrison is quoted as saying “I'm not going to submit to a test that's not going to tell me anything[]” in connection with the testing order by the Quebec Boxing and Gaming Commission. The implication of that quote is that Morrison is 100% confident that he is free of HIV.But whether or not any such test would “tell [him] anything” about his HIV status is beside the point. When a commission mandates a testing regimen, it is acting on behalf of, and in furtherance of the objectives of, the government that created it.One can imagine, therefore, the precedent that would be created if someone such as Morrison were empowered by a commission to pick and choose which pre-licensing requirements he wished to comply with before boxing in a given jurisdiction.A quick look at the potential confusion that could ensue in Quebec follows...
For the full article, please go to this link. Posted By : Paul Stuart Haberman
Seton Hall University School of Law's Annual Sports & Entertainment Law Symposium
Message posted on : 2011-01-25 - 15:25:00
On Tuesday, February 15, 2011, Seton Hall University School of Law and the Seton Hall Journal of Sports and Entertainment Law will be hosting its Annual Sports and Entertainment Law Symposium. The symposium will address current sports and entertainment issues, with a specific focus on the professional and ethical dilemmas confronting attorneys representing athletes and entertainers. 3 CLE credits will be awarded for full day attendance (the symposium will be from 4:30 to 9:00 p.m.). I look forward to joining Alan Milstein, Marc Edelman, and other speakers there.
Here are the details:
KEYNOTE ADDRESS
Time/Location
Description/Information
TBA
Jeffrey B. Gewirtz Executive Vice President & Chief Legal Officer New Jersey Nets Basketball/Brooklyn Sports & Entertainment
PANEL 1 — TRIAL PUBLICITY This panel will focus on Rule 3.6 of the ABA's Model Rules of Professional Conduct.
Time/Location
Description/Information
TBA
Christopher D. Adams, Esq. Member — Walder, Hayden & Brogan, P.A.
TBA
Darren Del Sardo, Esq. Partner — Damico, Del Sardo & Montanari, L.L.C.
TBA
Ellen C. Marshall, Esq. Of Counsel — Greenbaum, Rowe, Smith & Davis L.L.P.
TBA
Michael McCann, Esq. Professor — Vermont Law School
PANEL 2 — LABOR CONCERNS IN SPORTS & ENTERTAINMENT This panel will concentrate on the labor concerns surrounding sports leagues and the entertainment industry.
Time/Location
Description/Information
TBA
Jessica Berman, Esq. Associate Counsel — National Hockey League
TBA
Ann Burdick, Esq. Senior Legal Counsel — Writers Guild of America East
TBA
Marc Edelman, Esq. Assistant Professor — Barry University's Dwayne O. Andreas School of Law
TBA
Alan C. Milstein, Esq. Member/Shareholder — Sherman, Silverstein, Kohl, Rose & Podolsky, P.A.
For
information on attending, click here. Excellent work by Elizabeth Blakely & Emily Battersby, the Symposium Editors, on putting the event together. Posted By : Michael McCann
A Few Good Links
Message posted on : 2011-01-25 - 00:04:00
* Barry Bonds received some bad news last Friday, as Judge Susan Illston ruled that other big league players who were clients of Greg Anderson will be able to testify for the prosecution in Bonds's case. I write about Judge Illston's ruling in a column for SI.com. In the column, I predict that other players testifying will increase the chances of Bonds testifying in his own defense. Paul Elias also writes about Judge Illston's decision in a piece for the Associated Press.
* In looking at the concussion issue in the NFL, Ben McGrath of The New Yorker asks the most important question: Does Football Have a Future?
* One person who seems to be banking on football having a future--at least in the near future--is 48-year-old running back Hershel Walker, who is pondering a comeback. There is no "age ceiling" in the NFL (and the Age Discrimination in Employment Act bars discrimination of persons over 40), so if Walker proves good enough, he'll have a chance to play again.
* Are NFL players really united as March 4, the day the CBA expires, approaches? Not so if we look to Jets cornerback Antonio Cromartie, who had some choice words about the negotiation tactics of NFLPA executive director DeMaurice Smith.
* Interesting article from the Associated Press on Kwame Brown, the much ridiculed number 1 overall pick of the 2001 NBA Draft. While Brown has been a disappointment throughout most of his career and is now on his fifth NBA team, he seems to have turned a corner this season on the Charlotte Bobcats, with better numbers and playing with much more confidence. It's worth noting that while Brown has clearly not lived up to the hype of being the number one overall pick, he's still only 28 years old and, particularly given the dearth of quality NBA centers, he presumably could play another 6 or 7 seasons, perhaps at a relatively high level, too. Also, going into the season, Brown had earned $50 million over his NBA career. Not too shabby for a 28-year-old supposed "failure". Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2011-01-22 - 12:37:00
Recently published scholarship includes:
Parker Allred, Note, From the BCS to the BS: why “championship” must be removed from the Bowl Championship Series, 2010 UTAH LAW REVIEW 183
Jessica K. Baranko, Comment, It's my name and mine alone: how Chad Ocho Cinco affects the right of publicity, 20 MARQUETTE SPORTS LAW REVIEW 463 (2010)
Luke P. Breslin, Comment, Reclaiming the glory in the ‘sport of kings' — uniformity is the answer, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 297 (2010)
John Frega, Comment, The Performance Rights Act of 2009 and the Local Radio Freedom Act: will performance kill the radio star?, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 333-369 (2010).
Jonathan D. Gillerman, Comment, Calling their shots: miffed Minor Leaguers, the steroid scandal, and examining the use of section 1 of the Sherman Act to hold MLB accountable, 73 ALBANY LAW REVIEW 541-573 (2010)
B. Glenn George, Forfeit: opportunity, choice, and discrimination theory under Title IX, 22 YALE JOURNAL OF LAW AND FEMINISM 1 (2010)
Timothy Patrick Hayden, Can summer training camp practices land NFL head coaches in hot water?, 20 MARQUETTE SPORTS LAW REVIEW 441 (2010)
Noel H. Johnson, Book Note, Reviewing John H. Minan and Kevin Cole, The Little White Book of Baseball Law, 20 MARQUETTE SPORTS LAW REVIEW 657 (2010)
Lance C. Kearns, Book Note, Reviewing Kenneth L. Shropshire, Negotiate Like the Pros, 20 MARQUETTE SPORTS LAW REVIEW 663 (2010)
Kristen E. Knauf, Comment, If you build it, will they stay? An examination of state-of-the-art clauses in NFL stadium leases, 20 MARQUETTE SPORTS LAW REVIEW 479 (2010)
Robert H. Lattinville, Robert A. Boland and Bennett Speyer, Labor pains: the effect of a work stoppage in the NFL on its coaches, 20 MARQUETTE SPORTS LAW REVIEW 335 (2010)
Michael Levinson, (F)linging (I)ndispensable (F)reedoms (A)side: why FIFA's “6+5” will not survive, 17 INTERNTATIONAL & COMPARATIVE LAW QUARTERLY 191 (2010)
Christina M. Locke, Does anti-paparazzi mean anti-press?: First Amendment implications of privacy legislation for the newsroom, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 227 (2010)
Richard H. McLaren, Twenty-five years of the Court of Arbitration for Sport: a look in the rear-view mirror, 20 MARQUETTE SPORTS LAW REVIEW 305 (2010)
Susan McAleavey, Note, Spendthrift trust: an alternative
to the NBA age rule, 84 ST. JOHN'S LAW REVIEW 279 (2010)
Matt Mullarkey, Note, For the love of the game: a historical analysis and defense of final offer arbitration in Major League Baseball, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 234 (2010)
David Tan, Affective transfer and the appropriation of commercial value: a cultural analysis of the right of publicity, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 272 (2010)
Amy Tracy, Note, Athletic discipline for non-sport player misconduct: the role of college athletic department and professional league discipline and the legal system's penalties and remedies, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 254 (2010)
Leslie E. Wong, Comment, Our blood, our sweat, their profit: Ed O'Bannon takes on the NCAA for infringing on the former student-athlete's right of publicity, 42 TEXAS TECH LAW REVIEW 1069 (2010)
Kate Zdrojeski, International ice hockey: player poaching and contract dispute, 42 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 775 (2010)
2009 Annual Survey: Recent Developments in Sports Law, 20 MARQUETTE SPORTS LAW REVIEW 497 (2010)
Posted By : Geoffrey Rapp
Public Forum: MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY : Update
Message posted on : 2011-01-21 - 21:40:00
Wednesday, January 26, 2011Location: 14 Vesey Street, New York, New York Time: 6:00pm
Speakers:
* Joseph M. DeGuardia, Esq., owner of Star Boxing, a boxing promotional company, and president of the Boxing Promoters Association;
* Michael DiMaggio, Esq., Collins, McDonald & Gann, P.C.;
* Kurt Emhoff, Esq., attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager;
* Paul Stuart Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee of NYCLA; and
* David N. Weinraub, Esq., managing partner, Brown & Weinraub, PLLC, lobbyist for the UFC.
Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.
* I have a Question/Answer for Sports Illustrated on collusion charges filed by the NFLPA against the NFL. I talk about the quality of NFLPA evidence showing collusion and how the NFL can defend against that evidence.
* Brian Baxter of American Lawyeralso writes about the collusion charges and has some interesting insights on the law firms and lawyers involved.
* What's going to happen in today's Barry Bonds hearing on the admissibility of various pieces of evidence? Paul Elias of the Associated Pressexamines the key issues at stake.
* Should the University of Texas have its own cable channel, which ESPN is paying Texas $300 million over the next 20 years to distribute, when the channel will primarily feature sports played in an "amateur" sports association? The channel will also show high school sports. Michael Rosenberg of Sports Illustratedwonders about the potential conflicts of interest, including the recruiting advantages it gives UT over Texas high school players who are featured on the UT channel.
* There's a lot of good stuff over at Sports Agent Blog. If you haven't read that blog, I strongly recommend you check it out.
* The NFL's Personal Conduct Policy empowers Commissioner Roger Goodell to regulate any concduct that he deems detrimental to the league. Should thrash-talking that doesn't have any obscenities or discriminatory language really be within his purview, though? Joe Henderson of the Tampa Tribunewonders about that. Posted By : Michael McCann
Does lack of real insurance drive players to NFL?
Message posted on : 2011-01-20 - 11:55:00
With a record number 56 juniors declaring for the NFL draft this week people begin the debate of who made a good decision and who made a mistake in giving up their collegiate eligibility.Further confusing the situation is the uncertain labor future given the expiring CBA making some form of work stoppage a distinct possibility.
What isn't discussed is the lack of true insurance for many student-athletes to protect their financial futures should they return for another year of college football.While the NCAA created the Exceptional Student Disability Insurance (ESDI) Program in 1990 to allow student-athletes with pro potential in football, baseball, ice hockey, and men's and women's basketball, an opportunity to obtain insurance the program is far less valuable than meets the eye.
In football a student-athlete must be predicted to be a first or second round draft pick and the maximum coverage allowed under this policy is $ 5 million.Furthermore this policy, and only under certain conditions, allows the student-athletes to obtain a loan against their future earnings to cover the premium (about $ 8,000 per million of coverage).
While the aforementioned requirements may be reasonable, what is of major concern is that the policy only covers “permanent total disability.”Thus under this policy a star player who is seriously injured during a game and sees their draft prospects plummet from a top 5 pick to free agent stats because they aren't “permanently disabled” collects nothing.
True “loss of value” coverage is offered by insurance carriers whereby a player projected to be a top ten pick that suffers an injury but manages to continue playing at a slightly lower level and gets drafted in the fourth round collects on the gap in compensation between their anticipated early first round and their actual fourth round salaries.As one would expect the premiums for such coverage are tremendously high.After much debate in the fall of 2010 the NCAA finally relented and allows student-athletes the ability to obtain such coverage, where they miss the boat is that they prohibit student-athletes and their families the ability to get loans based on future earnings to pay for these premiums.
As a result, the ability for an elite college football player to insure against an injury that doesn't qualify as
total disability but does hamper their pro potential are priced outside of their means.Something the NCAA could and should permit.Thus, it is not surprising to continue to see the flow of college players making the jump to the NFL earlier than they may otherwise.
New Sports Illustrated Column Previewing Barry Bonds Trial
Message posted on : 2011-01-18 - 17:08:00
I have a new SI.com column that previews the upcoming Barry Bonds trial, which is scheduled to begin on March 21. Here's an excerpt:
* * *
. . . [P]rosecutors have signaled an interest in calling [Greg] Anderson to the stand, knowing that he would once again refuse to testify and therefore be placed in contempt of court. Prosecutors believe that a jury would interpret Anderson's refusal as a sign that Bonds knowingly lied under oath. Attorneys for Bonds are seeking to prevent prosecutors from deploying that strategy, and Judge Illston will have to determine whether prosecutors' calling Anderson to the stand with no expectation of him appearing would be more probative of Bonds's guilt or innocence or more prejudicial to Bonds, and disruptive of the proceedings.
Prosecutors also intend to call to the stand witnesses who are expected to testify that either Bonds told them of using steroids or that they saw him receive injections at the hands of Anderson. Kimberly Bell, Bonds' former girlfriend, and Bonds' former Giants teammate Bobby Estalella, are expected to claim that Bonds admitted in conversations that he used illegal performance-enhancers. Kathy Hoskins, Bonds' former assistant and the sister of Bonds' longtime friend/business manager Steve Hoskins, is apparently willing to testify that she saw Anderson inject Bonds. Such a statement would contradict Bonds' sworn testimony that no one except his doctor ever injected him with anything.
Also admissible, at least as of now, would be a portion of a recorded conversation purportedly between Steve Hoskins and Anderson, in which Anderson tells Hoskins that he injected Bonds with a performance-enhancing substance. Bonds' attorneys have requested that Judge Illston exclude the entire conversation, on grounds that Judge Illston's previous ruling requires that Anderson testify in order for him to be referenced.
Even if admissible, witness testimonies and recorded conversations would be subject to intense cross-examination by Bonds' attorneys, who would likely question witnesses' financial and legal motivations as well as their consistency of facts and recollection of specific detail from events that occurred a decade ago. Bonds's attorneys would also emphasize that conviction of perjury requires that the jury conclude, beyond any reasonable doubt, that Bonds knowingly lied under oath. If the government's case boils down to Bonds's words against those of witnesses about conversations and observances from years ago, it may prove difficult for jurors to lack any reasonable doubt.
We spent a lot of time debating the legality and merits of the BCS on our blog, but is the BCS actually better than the NFL playoffs as a mechanism for determining which is the best team?
Joe Posnanski of Sports Illustrated asks that question. Here is an excerpt:
Is a playoff really MORE FAIR? What does fair even mean? This year in college football, the BCS system had Oregon play Auburn for a trophy they called the national championship trophy. This left out other very good teams, particularly undefeated TCU. This wasn't fair. There was much griping about it, and rightfully so. It is absurd and somewhat arrogant to believe that we can use our eyes and our computer systems and our innate sense of the game to look at more than 100 Division I football teams playing somewhat self-determined schedules and simply pick the two best teams. The flaws in the system are obvious.
But aren't the playoff flaws obvious too? This year in the NFL, the playoff system included a seven-win team and took one 10-6 wild-card team while leaving two other 10-6 teams at home. The system made a 12-win team and two 11-win teams go on the road for their first game while three teams with 10 or fewer wins (including the NFL's first seven-win playoff team) played home games. This year, the NFL rewarded New England and Atlanta for their 14- and 13-win seasons by giving them an extra week to heal and homefield advantage. This seems like a seismic advantage. But is it really? We cannot argue that they promptly lost convincingly — making that one loss much more important than their stellar 16-game seasons. We cannot argue that 12 of the last 24 bye teams have lost their first week.
To read the rest, click here. Posted By : Michael McCann
Scorecasting: The Hidden Influcnes Behind How Sports and Played and Games are Won
Message posted on : 2011-01-18 - 12:34:00
Howard had a good post a few days ago on a Sports Illustrated article by Jon Wertheim and Tobias Moskowitz on the causes of home-field advantages in sports. Howard relates their article to the umpire-judge analogy, a favorite topic on this blog.
If you're interested in reading more about Jon and Tobias's work, you can now purchase their book on Amazon: Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won. I haven't read it yet, but I saw Jon and Tobias present on their book while it was a work-in-progress at last year's MIT Sloan Sports Analytics Conference, and it sounded awesome.
I also noticed these very encouraging reader reviews on Amazon:
This latest addition in the Freakonomics-driven behavioral economics genre is probably the best. It is Scorecasting and to a sports fan it is a can't-put-down type of book. The book is written extremely well with a mixture of famous sporting anecdotes and hard statistics that include research of the authors and others.
Some of the eye-opening subject include:
1. very solid evidence that umpires bias games - however what is interesting is the bias is not random. The bias tells a story. 2. the subject of home-field advantage was mesmerizing. Turns out not at all what sports pundits tells us are true or at least not in the way you might think so. 3. incentives lie at the heart of the Chicago Cubs dismal century. 4. great use of numbers to show how desperate baseball players are to have a batting average of at least 0.300. 5. a look into why some stats are not telling us all we need to know (i.e. blocked shot stats in basketball). 6. why don't football coaches go for it on 4th down when it is a statistically correct move?
Turns out that psychology (namely loss aversion) and incentives dictate a lot of sports decision making . . . Great, fast read. Highly recommended.
* * *
[From another customer review]:
Some quick examples from chapters I enjoyed:
Why you should (almost) never punt in football, including an example of a coach who followed the philosophy to a state title. Also, why most coaches still punt, in spite of the evidence.
Why Tim Duncan's 149 blocked shots are more valuable than Dwight Howard's 232 (Answer: Duncan tends to block the ball to his teammates, Howard tends toward the spectacular swat that goes into the 4th row...then back to the other team.)
The incredible differences in strike zones when comparing a 3-0 count to a 0-2 count. (Hint: umps expand the zone in the former, shrink the zone in the latter, allowing the hitter to determine the outcome)
Posted By : Michael McCann
Sports and Recretional Law Association Conference March 3-5 in Savannah, Georgia
Message posted on : 2011-01-17 - 21:33:00
The Sport and Recreation Law Association will be holding its 24th annual conference from March 3rd to 5th in Savannah Georgia. The conference features peer-reviewed presentations on many salient topics involving sports and recreation law. Topics include issues involving personal injury liability, risk management, high school and collegiate athletics, products liability, Title IX, First Amendment, intellectual property. Attendees include professors, attorneys, athletic directors, risk management specialists and students.
Conference registration is available online. The website is srlaweb.org.
I have attended SRLA conferences for the last decade and found the topics presented involved subjects not always discussed in law school settings. And, socially, SRLA members are a great group of people.
Two days before Super Bowl XLI in 2007, the game's two opposing head coaches posed with the trophy one of them would hoist after the contest. It was a fairly unremarkable event, except that both coaches were African American--a fact that was as much of a story as the game itself.
As Jeremi Duru reveals in Advancing the Ball, this unique milestone resulted from the work of a determined group of people whose struggles to expand head coaching opportunities for African Americans ultimately changed the National Football League. Since the league's desegregation in 1946, opportunities had grown plentiful for African Americans as players but not as head coaches--the byproduct of the NFL's old-boy network and lingering stereotypes of blacks' intellectual inferiority. Although Major League Baseball and the NBA had, over the years, made progress in this regard, the NFL's head coaches were almost exclusively white up until the mid-1990s.
Advancing the Ball chronicles the campaign of former Cleveland Browns offensive lineman John Wooten to right this wrong and undo decades of discriminatory head coach hiring practices--an initiative that finally bore fruit when he joined forces with attorneys Cyrus Mehri and Johnnie Cochran. Together with a few allies, the triumvirate galvanized the NFL's African American assistant coaches to stand together for equal opportunity and convinced the league to enact the "Rooney Rule," which stipulates that every team must interview at least one minority candidate when searching for a new head coach. In doing so, they spurred a movement that would substantially impact the NFL and, potentially, the nation.
Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America's most popular sport and added an extraordinary new chapter to the civil rights story.
I had the chance to review Jeremi's book, and was extremely impressed. My comments, along those of several others, are on the book cover:
"My personal journey of success would have been much more difficult if not for the sacrifices of many that blazed my trail. The Fritz Pollard Alliance created a highway for expanded opportunities for African Americans, which are chronicled in this fascinating and historic book."--Warren Moon, NFL Hall of Fame Quarterback
"An incredibly interesting and enlightening read. This book should be required reading for any level of sports enthusiast, as it explains so much about the complex intersection of sport and race. Without knowing this story, you simply cannot understand the evolution of sport over the past 50 years."--Woodie Dixon, Jr., General Counsel to the Pac-10 Conference and former General Counsel to the Kansas City Chiefs
"Advancing the Ball provides a hopeful
message, with engaging discussion of how policies can be instituted to correct patterns of unfairness and injustice."--Michael McCann, Sports Illustrated Legal Analyst, and Director of the Vermont Law School Sports Law Institute
"This excellent book is a must for fans of football and other sports, as well as for those with a passion for racial justice. Professor Duru offers us a thoughtful and engaging perspective on the evolution of equal treatment in professional football."--Paul C. Weiler, Professor, Harvard Law School, and Creator of Harvard's Sports and the Law
Advancing The Ball can be purchased on Amazon and Oxford University Press's website. Whether you agree or disagree with book, you'll find it to be a provocative and thoughtful read. Posted By : Michael McCann
Home-field advantage and the umpire analogy
Message posted on : 2011-01-15 - 23:32:00
An article by Tobias Moskowitz and L. Jon Wertheim in the new Sports Illustrated (I cannot find it on-line for some reason) examines the cause of home-field advantage in sports. If the study is empirically sound (and I want to down with some empiricists to help me figure out if it is), the results are groundbreaking. Moskowitz and Wertheim argue that home-field advantage is mostly explained by official bias, influenced by a combination of the closeness of the game and the game situation; the home crowd (size, loudness, proximity, and intensity); and limited attention to, or accountabiltiy for, particular decisions. Read the whole thing if you can get it (or it eventually comes on-line).
Briefly, officials conform their calls to social pressure created by the home crowd. Officials use crowd noise to help them resolve uncertainty in making a call, resulting in more calls going the way the home crowd wants them to go. Studies done for or discussed in the the story showed a range of calls in a range of sports that systematically favor home teams--extra time, fouls, and yellow and red cards in soccer; called (non-swinging) balls and strikes in baseball; close plays on the bases in baseball; traveling in basketball; and penalties and fumbles in football. The psychological effect is more pronounced in well-attended games (according to the story, in 2007, the Italian government ordered teams with deficient security to play games without spectators; 21 games were played in empty stadiums and a study by two economists found dramatic decreases in home-team benefits in fouls, yellow cards, and red cards).
The bias is revealed, in part, by the rise of technology, particularly in football. Visiting teams are more successful in overturning calls favoring the home team, especially where the home team is trailing. In other words officials make mistakes in the home teams' favor more often than they do in visiting teams' favor (although the difference is small). Replay thus has resulted in the narrowing or elimination of the home-team advantage, at least as to turnovers, because some of those erroneous calls are corrected (so maybe I need to rethink my opposition to replay in football). Technology also reveals that officials get it right most of the time (about 85 % on balls and strikes). But the mistakes they make are not random--they tend to favor the home teams. And, of course, most mistakes are not discoverable or reversible--thus the home-field advantage continues.
I am not sure what to do with the story, which I find fascinating. For starters, I wonder what this tells us about the much-despised umpireanalogy. One of my objections has been that the analogy, as used, misrepresents what umpires do. This study supports that thought. Umpires clearly do not just call balls and strikes as a simple, clear, robotic exercise--umpires (and other officials) are human and they and their decisions are subject to outside pressures and influences, such as, essentially, public opinion. Similarly, critics of the umpire analogy have focused on the outside influences that (everyone who is being honest recognizes) affect judicial decisionmaking--life experience, ideology, politics, empathy, public opinion and pressure--just as outside
influences affect umpires. But is there a still more-precise comparison between judicial decisionmaking and officiating, given what this new study shows? Is there a litigation "home team" that systematically gets the benefit of judicial decisions? Perhaps the government (especially in criminal cases) or any other repeat player in litigation? Are judges affected by the (unconscious) need/desire to make the populace happy, just as umpires are similarly affected, and does that affect decisions?
What else can this study tell us about judicial decisionmaking? Posted By : Howard Wasserman
You Can't Sit There! UVA's Ticket and Seating Policy for Men's Basketball Games Called into Question
Message posted on : 2011-01-15 - 18:25:00
Jeff Eisenberg of Yahoo! Sports has a great piece on a UNC hoops fan who bought a $100, 2nd row seat at a UNC-UVA game played in Charlottesville VA, but because he was wearing a Carolina blue coat and because the section was primarily intended for UVA fans and athletic staff, he was told he could not sit in the seat he purchased.
He was escorted out of the section -- which I imagine could have been embarrassing -- and dispatched to a different and not as good seat, where his school's colors were apparently less offensive.
Should he have been forced to change seats merely because he was supporting the opposing team? Even as a UVA alumn, I say no.
Here's an excerpt from Eisenberg's story:
* * *
Before the 46-year-old Arlington, Va. resident had time to remove his Carolina blue coat, a security guard approached and told Demery he couldn't sit in that section of John Paul Jones Arena wearing Tar Heels colors. Soon afterward, another Virginia staffer asked to see his ticket to verify that it was legitimate. And finally, associate athletic director Jason Bauman escorted Demery from his seat and relocated him to another seat 17 rows higher in the lower bowl.
"I couldn't believe it," Demery said. "I'm sitting there hoping to enjoy the game courtside and I thought it was going to work out great and in a matter of 15 minutes, it changed. I just was shaking my head thinking, 'How is this possible? How are they allowed to get away with this?'"
* * *
Michael McCann, director of the Sports Law Institute at Vermont Law School, said that Demery's contractual rights may have been breached if the ticket he purchased didn't stipulate that he could not sit in the seat unless he was a Virginia fan. McCann also said relocating Demery may have been a First Amendment violation since Virginia is a public school and has less authority to regulate speech than a private institution.
"A fan who wears the 'wrong' team's shirt should probably not be excluded from a particular seat that he has legally purchased," McCann wrote via e-mail. "Sure, schools can encourage fans of one team to sit in certain sections, but they probably can't sell a ticket and then revoke its conditions because the ticket-buyer happens to be a fan of the other team."
To expand my comments, while colleges clearly have "some" authority to regulate the conduct of fans and what's known as fans' "cheering speech" (i.e., how fans cheer, either for or against a team/player - a topic which Howard has written about), their use of that authority has to be carefully drafted. For instance, if fans excessively and loudly spew out profanities at games, and there are kids around, their First Amendment rights may be trumped by various concerns, including those based on security. Plus, those fans would likely have
violated the terms of their ticket admission by being so disruptive.
But merely wearing the opposing team's colors? Come on. Hard to see how that can be regulated without providing notice to ticket buyers in advance.
It's disappointing that a school founded by Thomas Jefferson, of all people, would take this approach. Posted By : Michael McCann
F.T.C. to Investigate Football Helmet Manufacturer Riddell
Message posted on : 2011-01-15 - 10:00:00
The Associated Press reported on Friday that the United States Federal Trade Commission is looking into potentially misleading and deceptive trade practices by football helmet manufacturer Riddell. Riddell is the official helmet manufacturer of the National Football League.
According to the AP article, the F.T.C. is concerned about statements on Riddell's website stating that "research shows a 31 percent reduction in the risk of concussion in players wearing a Riddell Revolution football helmet when compared to traditional helmets." According to United States Senator Tom Udall (New Mexico) -- who wrote to the F.T.C. requesting an investigation -- there is little evidence supporting Riddell's safety claims. For its part, Riddell released a statement calling the allegations "unfounded and unfair," and welcoming any scrutiny.
The AP interviewed Professor Stephen Ross, director of Penn State's Institute for Sports Law, Policy and Research, for its story, who noted that "the commission has several options if it decides to pursue action against companies, including a cease-and-desist order."
For more on this story, see the Associated Press's report here.
Posted By : Nathaniel Grow
Show Myself The Money? NFL agent Bob LaMonte and Representing Both Sides of Cleveland Browns Negotiation
Message posted on : 2011-01-14 - 15:00:00
Is there a conflict of interest when the same NFL agent represents a team's president, executive VP, general manager and the person whom the team is hiring as coach?
Welcome to the world of the Cleveland Browns!
Bill Lubinger of the Cleveland Plain Dealerhas the story and interviews several persons, including Rick and me:
* * *
The middle man in the Browns' 10-day coaching search was Bob LaMonte, whose influence in Berea now stretches from the team's boardroom to the coach's office.
The seasoned NFL agent represents the Browns' executive team of President Mike Holmgren, General Manager Tom Heckert and Executive Vice President Bryan Wiedmeier. He also represents Browns coach Pat Shurmur, who will be introduced today.
How is it that an agent can sit on both sides of the table without a conflict of interest?
* * *
NFL spokesman Greg Aiello said the players union regulates agents, not the league. And, according to union rules, dual representation is not prohibited as long as an agent discloses the names of any coaches, general managers or other management types he or she represents.
* * * "My expectation," said Scott Rosner, associate director of the Wharton Sports Business Initiative at the University of Pennsylvania, "is that it would be an arm's-length negotiation."
* * *
Sports lawyer Rick Karcher, who directs the Center for Law and Sports at the Florida Coastal School of Law, said agents would suggest such representation is an advantage because it provides valuable connections, allows for insight other agents wouldn't have and allows them to serve as a helpful mediator when two clients clash.
* * *
Michael McCann, director of the Sports Law Institute at the Vermont Law School, said the remedy is just that simple.
"The fix is easy, at least in theory," McCann said. "Get a new agent."
To read the rest, click here. Posted By : Michael McCann
Even More on Antitrust Law and the BCS
Message posted on : 2011-01-14 - 08:30:00
While Monday evening's BCS National Championship Game commanded much of the college football world's attention this week, the antitrust implications of the Bowl Championship Series continued to make news as well. Specifically, as reported by several mediaoutlets, the law firm of Arent Fox -- legal counsel to Boise State University and the Mountain West Conference on matters relating to antitrust law and the BCS -- recently submitted a report to the United States Department of Justice arguing that the BCS violates federal antitrust law. The Justice Department is presently deciding whether to launch a formal antitrust investigation of the BCS.
The Arent Fox report sets out to debunk 22 common arguments advanced in support of the BCS, ranging from the assertion that a playoff would damage college football's regular season, to the issue of whether consumer welfare is sufficiently implicated by the BCS to warrant an antitrust lawsuit. The report concludes that the BCS does in fact violate antitrust law, and urges the Justice Department to launch a formal investigation.
Could the Alleged Misdeeds of Internationally Based Boxers Put Them Down for the Count with U.S. Commissions?
Message posted on : 2011-01-13 - 20:10:00
Back in September, hot junior middleweight contender Alfredo (El Perro) Angulo, 19-1 (16 KOs), provided the boxing world with an explicit example of what it takes to be banned from United States boxing venues, United States television, and the United States as a whole. Angulo, then a favorite son of HBO Sports, was deported back to Mexico in September after it was discovered that he had illegally entered the United States, got deported back to Mexico, and illegally entered the United States for a second time over the course of several years. In one fell swoop, Angulo burned not only U.S. Immigration and Customs Enforcement (“ICE”), but also HBO and his entire U.S. team. While Angulo may ultimately be able to salvage his career in his native Mexico, his situation begs the question of what it takes, other than a serious medical condition or an immigration infraction, for an internationally-born or based boxer to be banned from boxing in the United States. Angulo was an easy call, indeed the federal government did not even leave it to any athletic commissions' discretion, but the legal and regulatory issues facing other notable boxers based outside of the United States today, who could otherwise be granted visas to fight and train over here, may not provide similarly clear outcomes. Indeed, boxers like the late Edwin (El Inca) Valero have been allowed to enter the United States only to be banned by specific commissions. Using New York law as a backdrop, an analysis of whether the recent legal and regulatory problems of several notable overseas boxers could result in their inability to be licensed in the United States follows...
For the complete article, please click on this link. Posted By : Paul Stuart Haberman
Polygraph = Anti-Corruption Tool?
Message posted on : 2011-01-13 - 10:43:00
Does the polygraph (aka lie detector machine) have to potential to be used as an anti-corruption tool in sports? According to a recent Guardian article by Andy Wilson and Rob Bagchi, the answer appears to be "yes." The plan was hatched after reports of match-fixing in the sport of cricket.
The news column caught my eye because I suggested something similar in a recent paper regarding possible bias by NBA referees. In relevant part, I wrote the following:
In the absence of collaboration in the form of direct evidence, the prima facie showing could be rebutted by an innocuous explanation. The analysis here merely lends itself to the formation of a rebuttable presumption. Without more, such analysis is uncorroborated. A subsequent investigation that includes personal interviews, polygraph tests, or the like would be necessary to conclusively ascertain whether any insidious conduct occurred.
Including such a "polygraph provision" in any league-union CBA would be unlikely, but may be an option if corruption ever reaches this level, as reported by Eric Pfanner of the New York Times in the context of European soccer.
Posted By : Ryan M. Rodenberg
Mark Conrad's The Business of Sports (second edition)
Message posted on : 2011-01-12 - 17:07:00
Congratulations to Sports Law Blog contributor Mark Conrad on publication of the second edition of his book, The Business of Sports.
This second edition is 100 pages longer, with added discussion on contemporary issues on labor, international sports and intellectual property and media. Mark's book is excellent - it's clear, organized, and has a ton of useful information. I've used it in a number of my writings.
Check out the Amazon page for The Business of Sports. Posted By : Michael McCann
Should MLB adopt a Rule that Limits Innings Pitched by Young Pitchers?
Message posted on : 2011-01-11 - 15:42:00
Sports Illustrated's Tom Verducci has a good column on the relationship between an increase in innings pitched from season-to-season and injuries suffered by young pitchers. Here's an excerpt:
One small part of such understanding is monitoring the innings of young pitchers from one year to the next. More than a decade ago, drawing on the advice of pitching coach Rick Peterson, I developed a rule of thumb that pitchers 25 and younger should not increase their workload by more than 30 innings. It's the same theory as training for a marathon: you risk injury by jumping from a 10K to the marathon instead of incremental increases. I called it the Year After Effect because the wear and tear often was followed by regression or injury the next year.
* * *
In recent years a new term has come into the game to prevent injuries, not just treat them: prehabilitation. Governing the workload of young pitchers has become standard procedure. Shutting down healthy pitchers in September, for instance, is a common occurrence.
* * *
Personally, I think one of the benefits of teams shutting down a young pitcher after he throws a certain number of innings is that it is a bright-line rule and takes the matter out-of-the-hands of the pitcher's manager, whose incentives may be short term and thus not always match those of the pitcher or general manager. Of course, the decision to shut down a pitcher is a team-based and not league-based decision, with some teams--and their managers--more protective of their pitchers than others.
So a thought: should the MLBPA try to collectively bargain a bright-line rule with the owners that would institute a league-wide limit on the number of innings thrown by a young pitcher, depending on his age?
Such a rule would surely attract criticism, especially since young pitchers, like all pitchers, are not equally susceptible to injury. For example, physically larger pitchers seem to be more durable than smaller guys, while pitchers with certain kinds of windups cause their arm more tension. A bright-line could consider a player's height/weight, but more likely it would only consider his age and number of innings pitched. Alternatively, instead of innings pitched, the rule could be based on pitches thrown - the same idea (and drawbacks) would be there.
Whatever a bright-line rule on innings pitched lacks in nuance and player-specific accuracy, it might still save some careers. It would also ensure that young pitchers don't fret about criticisms that they're more worried about their arms' health than their teams' success -- it wouldn't be the pitchers' choice, after-all, they would have to shut down after throwing a certain number of innings.
Posted By : Michael McCann
Jets and Brett Favre hit with Sexual Harassment Lawsuit
Message posted on : 2011-01-05 - 22:44:00
The troubles of the Jets continue. Two massage therapists have filed a lawsuit claiming that they lost their jobs after complaining about "sexually suggestive text messages" from Farve while he was on the Jets in 2008.
I was interviewed yesterday by Maggie Gray of Sports Illustrated Video to discuss:
Posted By : Michael McCann
Special Master Hearing on whether NFL breached Collective Bargaining Agreement in TV Contracts
Message posted on : 2011-01-04 - 17:29:00
University of Pennsylvania Law Professor Stephen Burbank, the Special Master of the NFL for grievances with the NFLPA, began a hearing today in New York City for a grievance filed by the NFLPA. The NFLPA alleges that the NFL breached its fiduciary duties under the CBA by -- according to the NFLPA -- taking less from TV networks for broadcast contracts in exchange for the guarantee that the NFL would be paid by those networks in 2011, regardless of whether there is a league lockout. The NFLPA characterizes the NFL's contract strategy as "lockout insurance" and claim that it contradicts the CBA. The NFL, in contrast, argues that it did not breach any duties and, moreover, that it has discretion in its business decisions for broadcast contracts. If the NFLPA wins, it would provide added motivation to NFL owners to agree on a new CBA before the current one expires on March 4.
I was interviewed by Public Radio's Marketplace show this morning to discuss the hearing - for an interview transcript and link to audio, click here. Posted By : Michael McCann
Sugar is Sweet
Message posted on : 2011-01-02 - 19:04:00
A few facts to follow up on the post by Michael on the suspension of five Ohio State Football players. Thankfully, the Coach did allow the players to participate in the Sugar Bowl on the condition that the juniors agreed to return to the school for their senior year rather than throw their hats in the NFL lottery ring. How charitable.
That Coach Jim Tressel recently had his contract extended for two years so he can continue to earn $3.5 million annually from The Ohio State University, a tax-exempt state university and recipient of millions of dollars in state and federal funds.
Speaking of tax exempt status, I am glad to report that the Sugar Bowl Foundation is a 501(c)(3) organization, making your contributions tax deductible. The CEO of the foundation, Paul Hoolahan, receives annual compensation of $645,386 for his fine work.
For playing in this great game, Ohio State receives about 17 million dollars.
Now you know why the NCAA was so upset about these kids besmirching such charitable endeavors by accepting those free tattoos. Posted By : Alan C. Milstein
Red Sox Re-Sign Hideki Okajima, client of Sports Law Blog's Joe Rosen
Congrats to Joe on negotiating the contract for Okajima, who was an all-star in 2007 but who struggled at times last year. Given the Sox's recent acquisitions of Carl Crawford and Adrian Gonzalez, along with an improved bullpen, Okajima has a legitimate chance of winning another World Series ring. Posted By : Michael McCann
Was Suspended Ohio State's QB Terrelle Pryor in the Right or Wrong?
Message posted on : 2011-01-01 - 12:29:00
Stefanie Loh of the Patriot News examines the five game suspension of Ohio State quarterback Terrelle Pryor and several other players for selling their championship gear and pocketing the profits - a violation of NCAA rules but, from the players' standpoint, a way of obtaining the fruits of their otherwise unpaid labor.
She interviews Geoff and me for the story. Here's an excerpt:
All season, the waters of college football have been muddied by stories of student-athletes breaking rules by trying to make money or receive benefits that, per NCAA rules, they are not eligible for due to their amateur status.
But as a 2009 ESPN.com story showed, a bona fide football star can be a multi-million dollar asset to his university. The University of Florida's football revenues totaled $132 million in Tim Tebow's sophomore and junior seasons combined. In exchange, the only monetary compensation the quarterback received was his scholarship worth $13,160 per year, and a minimal monthly stipend.
* * *
Patriot News: Is there any feasible way we can find a happy medium and compensate the student-athletes while not creating dissension?
Rapp: You could allow for a fairly modest stipend. Like what grad students make teaching introductory English in exchange for $20,000 a year. Then, if you're Terrelle, you have something in your pocket, and it reduces temptation. The real problem is that most universities couldn't afford to give their student-athletes $10-20,000. For most universities, it would mean the end of their programs.
McCann: How would other athletes be compensated? And how would Title IX work into it? If you're only paying the players from programs that make money — at most schools that is men's basketball and football — other players would say “I should be paid too” and the school would say, “You're not contributing enough to the market.” It would certainly complicate college sports, and I imagine some schools would have to cut programs to pay for this.
I went on to say that another response -- though not a complete solution -- would be for the NFL, NBA, and WNBA, and their respective players' associations, to collectively-bargain a lowering of their age/experience eligibility restrictions. Here are the current rules:
The NBA requires that U.S. players be 19-years-old and one-year removed from high school.
The WNBA requires that U.S. players be four-years removed from high school or at least 22-years old.
The NFL requires that players be three-years removed from high school.
Those rules are applied in all cases and make no exceptions for a young player's extraordinary talents (i.e., there is no Lebron exception) or his/her financial hardships.
Lowered eligibility would mean that college football and basketball players who would be drafted if they were eligible could then leave college (or not go to college) and pursue those leagues and thereby earn income for their labor. These are the same players who, because they are the best, presumably generate the most fan interest and are thus the most deserving of gaining compensation for their services. To be sure, some of these players would prefer to attend/remain in college, develop their games, and obtain a college education - the choice, though, would be theirs.
None of this is to say that other college student-athletes don't deserve to be paid for their athletic achievements, but if only some can be paid, it would seem that players who are 1) good enough to turn pro and 2) would turn pro but can't because of arbitrary age limits should be first in line. Posted By : Michael McCann
A Lesson Learned
Message posted on : 2010-12-30 - 11:49:00
In what is usually one of the slowest news weeks, a controversy rages over President Obama's reported conversation with Jeffrey Lurie, the owner of the Philadelphia Eagles, praising the franchise for giving Michael Vick a chance to perform after serving a twenty-three month prison sentence for dog fighting and related charges.
Peter King of Sports Illustrated, who had reported the conversation, is amazed at the reaction, tweeting recently (and inappropriately hilarious) that “this story has longer legs than Giselle,” referring to Giselle Bundeschen, the wife of Tom Brady, Vick's main rival for this year's MVP vote.
Fox News, the new standard-bearer for right wing craziness, spent much of Tuesday berating the President for his support of Vick. Tucker Carlson, filling in for Sean Hannity, actually opined that Vick “should have been executed” for his crimes. This from the Sarah Palin Network in love with the candidate who gloried in the shooting of a caribou for no other purpose than higher television ratings.
Michael Vick's story is well known. Perhaps less publicized are the appalling facts about imprisonment in America. Currently, more than 7 million people are either in prison, on probation or on parole in the United States, which amounts to 1 in 18 adult males, more than four times the per capita rate in England, eleven times in a country like Norway. Of these, 70 % are people of color. Of those released from prison, about one third end up accused of another crime within three years.
Whatever one thinks of Michael Vick's crime and punishment, his rehabilitation and maturation following his release can be a lesson in ethics. It should be a source of inspiration for the idea that people can change for the better and make much of their lives even after serving time. As a society, we can learn how to forgive those who have confronted their past and paid for their sins. The President was right to applaud the Eagles for their offer to Michael Vick and those who have criticized the President are wrong. Posted By : Alan C. Milstein
FIU wins Sports Law Blog Bowl
Message posted on : 2010-12-27 - 07:24:00
That was quite a game, with a lot of everything--multiple comebacks and apparent game-changing plays by all units on both teams, gutsy coaching (major props to Toledo Coach Tim Beckman for going for two and the win rather than playing for overtime), a hook-and-ladder to convert a 4th-and-17, and a game-winning-as-time-expired field goal. Oh, and too much instant-replay. I still am not sure that a commitment to an FBS football program is the best use of resources for a small, cash-strapped public university. But I watched the game very much as a fan--frustrated and mumbling about what-if when I thought we had blown the game, exultant when the kick split the uprights.
And again, I love Tony Packo's. Posted By : Howard Wasserman
Golf and the Law
Message posted on : 2010-12-24 - 10:30:00
The New York Times published an interesting story a couple of days ago exploring the relationship between golf and the law. The story comes on the heels of a recent decision by the New York Court of Appeals holding that golfers assume the risk of injury from errant golf shots. Here is a snippet:
Ever since people have trod meadows and moors intent on striking hard white balls with bottom-weighted clubs, people have been suing one another for shots gone awry. Golf has evolved into the perfect litigation machine, beloved by lawyers, perhaps because so many are making a good living filing suits, defending suits and providing advice on injuries, course and product design, environmental damage, discrimination and almost anything that could conceivably find its way into a courtroom.
I would have gone with "F-E-E-T, Feet, Feet, Feet"
Message posted on : 2010-12-22 - 22:50:00
Alan beat me to the punch. What struck me was the potential for some very interesting cheering-speech issues at this game; this is the sort of thing that fans will be unable to resist. How are the Bears and the NFL going to handle the inevitable signs, t-shirts, chants, etc. that are going to be about feet, foot fetishes, FOOTball, "Can I smell them," and everything else that this type makes possible for obnoxious and possibly drunk fans? What if (as one blogger suggested) the PA folks plays "Footloose" when the Jets take the field? Posted By : Howard Wasserman
Is getting a tattoo a "benefit"?
Message posted on : 2010-12-22 - 22:10:00
As if 10% unemployment and the loss of two Congressional seats weren't enough, Ohio-ans now have to deal with the news that some of "the" Ohio State University's star football players, including last year's Rose Bowl MVP Terrelle Pryor, may miss this year's bowl showdown with Arkansas. According to the Columbus Dispatch, a number of players, including Pryor, are under investigation for receiving free tattoos.
NCAA Bylaw 16.02.3 prohibits student-athletes from receiving "extra benefits" not offered to the general public from university employees and boosters:
“An extra benefit is any special arrangement by an institutional employee or a representative of the institution's athletic interests to provide a student-athlete...a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes...is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution's students...on a basis unrelated to athletics ability."
Here, the athletes' tattoos were supposedly provided by Columbus parlor "Fine Line Ink." Presumably, the expansive definition of booster would sweep in the shop in question.
Although it seems these players will get to watch the game from the hotel, there are two possible lines of defense. First, is getting a tattoo, which one will surely regret years from now, really a benefit? (OK, probably). But is it a benefit not available to the general public. According to Fine Line Ink's myspace page, free tattoos are available to anyone willing to host a tattoo party:
Call and ask us how you can get a free tattoo for hosting a party at our place or yours! Invite all your friends, for food, drinks, and Tattoos & Piercings! Some restrictions apply call shop for details.
Let me first confess I am an old Baltimore Colts fan (Diner era) and still hate the Jets for embarrassing us in 1969. But this is just too much to hold in.
First we saw Strength Team Coach Sal Alosi and the Gang of Four, standing toe to toe, trying to keep the Punt team's gunner from returning to the field of play and then tripping him. Such behavior eclipsed Spygate as the worst case of sportsmanship in recent NFL history.
Now we have Toegate with the Head Coach of those same Jets supposedly starring in a series of YouTube videos demonstrating deep admiration for his wife's extremities. What next? I know I always write about the need to judge professional athletes by their work on the field, accepting that they are as flawed as the rest of us outside the lines. But for the life of me, I never expected to see something like this. It's not exactly unethical. In fact, I don't know what to call it. Let's just say it gives new meaning to what Football is all about.
Posted By : Alan C. Milstein
No Country For Old Football Coaches?
Message posted on : 2010-12-22 - 14:07:00
Are older college football coaches being fired, or not hired, in part because of age? This is a topic that Stewart Mandel writes about in an SI.com column. Here is an excerpt:
* * *
Over the past week, new athletic directors at West Virginia and Maryland forced out incumbent coaches who, by most reasonable standards, had been relatively successful. Mountaineers coach Bill Stewart, 58, has won nine games in each of his first three seasons. Terrapins coach Ralph Friedgen, 63, has taken his team to seven bowl games in 10 years and was named the ACC's Coach of the Year this season.
* * *
In that respect, Maryland and West Virginia are merely following the national trend in coaching hires: Youth and energy trump age and experience. Pittsburgh recently replaced 58-year-old Dave Wannstedt, an NFL and college head coach for 17 seasons, with 46-year-old Michael Haywood, a head coach for two seasons at Miami (Ohio). Colorado axed Dan Hawkins, 50, who's been a head coach for 15 seasons, and hired Redskins tight ends coach Jon Embree, 45, a CU alum who'd never previously served as even an offensive coordinator.
New Florida coach Will Muschamp is a 39-year-old first time head coach. Indiana (Kevin Wilson) and Vanderbilt (Franklin) went with first-time head coaches, too. Franklin, 38, is 18 years younger than Robbie Caldwell, the man he replaced. In fact, all eight BCS-conference hires to date are younger than the coaches they're replacing.
* * *
To add to Stewart's discussion, the Age Discrimination in Employment Act protects people 40 and up from discrimination due to age. I would be interesting in knowing 1) if coaches' termination settlements (fired coaches usually get about half of their remaining salary) include release of age discrimination claims in exchange for payment; 2) whether there is any empirical support for a finding of age discrimination; and 3) whether the EEOC has looked into this subject. Might not be a bad topic for a student looking for a law review/journal note topic. Posted By : Michael McCann
AALS Section on Law and Sports Panel Discussion
Message posted on : 2010-12-21 - 16:22:00
For those attending the 2011 Association of American Law Schools (AALS) Annual Conference in San Francisco next month, the Chair of the Section on Law and Sports, Ed Edmonds, has announced this year's panel discussion:
American Needle v. NFL and the Single Entity Defense: A New Frontier for Sports and Antitrust Law
January 8, 2011 3:30-5:15 PM
Section on Law and Sports Yosemite C, Ballroom Level, Hilton San Francisco Union Square
Moderator: Edmund P. Edmonds, Notre Dame Law School
Speakers:
Gabriel A. Feldman, Tulane University School of Law
On May 24, 2010, the United States Supreme Court issued its eagerly anticipated decision in American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010). In a unanimous decision authored by Justice Stevens, the Court reversed and remanded the Seventh Circuit's opinion regarding the licensing of the NFL's intellectual property. The case involves a fundamental question of whether or not the National Football League is a single entity, and, as such, exempt from attack under Section 1 of the Sherman Antitrust Act. The Court held that the league, through its separate corporation NFL Properties, was involved in concerted action when it granted an exclusive license to one vendor, and, thus, not categorically insulated from a Section 1 challenge. The case presented the Supreme Court with an opportunity to clarify its decision in Copperweld Corp. v. Independence Tube Corporation, 467 U.S. 752 (1984). Posted By : Michael McCann
Sports Law Blog honored as Top 50 Business Professor Blog
Message posted on : 2010-12-21 - 13:38:00
Bschool.com, a leading online resource for MBA programs, has named Sports Law Blog one of the 50 Best Business Professor Blogs. We appreciate the recognition! Posted By : Michael McCann
IsTonight's Bears-Vikings Game Too Dangerous?
Message posted on : 2010-12-20 - 12:03:00
Posted By : Michael McCann
Catching up with Links
Message posted on : 2010-12-20 - 09:01:00
* Ropes and Gray's Fall/Winter issue of Sports Law Today has an excellent feature article by Andrew Hohenstein on the recent Boston College Law Review symposium that delved into legal issues as the NCAA turns 100 years old. The issue has similarly impressive articles by David Mindell and Joseph Polniak on California's Student-Athletes' Right to Know Act; Daniel Adams and Matthew Bryon on rouge agents; and Christopher Conniff and Ned Sebelius on minimizing the impact of off-field activities.
* I also recommend reading Proskauer and Rose's recent issue of Three Point Shot, which includes an article on Jim Brown suing Electronic Arts for misappropriation in the Madden football game, which features "historic" teams. Rick Karcher has blogged about the Jim Brown litigation.
* Jimmy Golen of the Associated Press has an interesting piece on the NFLPA telling its members to save payments because a lockout seems likely. Jimmy raises a particularly compelling point that hasn't received a lot of attention, but could becoome hugely important considering how many injuries NFL players suffer: NFL owners are threatening to discontinue the players' health care during a lockout. Keep in mind, though, Article XLIX of the league-union's CBA says that benefits should be continued through the plan year. "Period of Benefits: Subject to the extension provided in Section 2, players will continue to receive the benefits provided in this article through the end of the Plan Year in which they are released or otherwise sever employment."
* Brian Baxter of AM Law Daily has an insightful read on various sports law issues, including a lawsuit over ownership of the phrase "ultimate fighting":
Enter Ubisoft Entertainment, one of the world's largest video game companies. In November, the French company stepped into the octagon with its latest offering--Fighters Uncaged, which allows players to become the "ultimate fighting weapon" in a world of underground street fighting. Ubisoft now faces a lawsuit filed by UFC over the use of the words "ultimate fighting," . . .
* Justin Ross (Indiana University) and Robert Dunn (West Virginia University) have posted on SSRN a piece from a few years back that is still quite relevant and interesting: "The Income Tax Responsiveness of the Rich: Evidence from Free Agent Major League Baseball All-Stars". Their key conclusion: there is "evidence that the wages of this subset of players do adjust to offset the burden of state income taxes, specifically a 1% decrease in net-of-tax rate leads to a 3.3% increase in salary."
* Libby Sander of the Chronicle of Higher Education has a good piece on the NCAA considering a national pro-sports counseling panel. The NCAA is drawing heavily on research and analysis found in"Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment ", an article recently published in the Cardozo Arts and Entertainment Law Journal and authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).
* Not sports law, but if I'm an NFLPA agent, I think I'd be less inclined to direct one of my clients to play for Tom Coughlin after he berated his punter, Matt Dodge -- who admittedly made a terrible mistake by not kicking the ball out of bounds -- at mid-field following yesterday's Giants historic collapse at the hands of DeSean Jackson, Michael Vick and the Eagles.
Obviously, Dodge made a mistake, but there were many mistakes by other Giants players and Giants coaches that contributed to yesterday's loss (for instance, why did no one tackle Jackson?). I think coaches should try to avoid further embarrassing players who are already very embarrassed - the game was over and everything Coughlin said to Dodge could have been said in the locker room. Lecturing an NFL player like he's 12-years old, in front of tens of thousands of people, just makes a coach look bad.
Posted By : Michael McCann
Sports Lawyers in Action: How Katten Muchin Rosenmann Counsel Assisted White Sox in Internal Kickback Probe
Message posted on : 2010-12-18 - 13:11:00
My good friend and former law school classmate, Bryan Stroh, is among several Katten Muchin Rosenmann lawyers profiled by the American Lawyer and Law.com for their legal counsel to an internal investigation by the Chicago White Sox into kickbacks for Latin American agents who directed clients to the White Sox. Tim Epstein blogged about this emerging scandal last month.
The ChiSox probably hope the splashy signings overshadow some less-positive recent news about the franchise: the decision by federal prosecutors in the Windy City to charge former senior director of player personnel Dave Wilder and two scouts with fraud.
Wilder and scouts Jorge Oquendo Rivera and Victor Mateo are alleged to have taken kickbacks from young Latin American players in the team's minor league system. A 17-page indictment accuses the trio of illegally defrauding 23 prospects out of $400,000 between December 2004 and February 2008.
It was in the summer of 2008 — after the White Sox fired Wilder, Mateo, and another scout in the wake of an internal investigation into the team's Latin American operations — that reports first surfaced of possible fraud in the signing of Dominican players.
* * *
Assisting [Sheldon Zenner, the co-chair of Katten Muchin Rosenman's white-collar criminal and civil litigation practice] was Katten litigation associate Bryan Stroh, a former baseball player at Princeton. The two worked closely with White Sox executive vice president and Katten alum Howard Pizer, team general counsel John Corvino, and staff on the baseball side in arranging interviews at the team's home at U.S. Cellular Field.
"It seemed a lot easier to do those interviews here rather than [in the Dominican]," Zenner said. "To be frank, lawyers' time can be expensive, and that doesn't even include travel time and translation issues. One major challenge was getting them in an environment where they felt comfortable."
Given that most of those being interviewed were low-level minor league players — some of whom had been in the U.S. for only a short time — Zenner said that being questioned in a major league ballpark by many of the team's top brass left the young Dominican players terrified.
"A lot of these kids were scared stiff and had no idea why there were being called in," Zenner said. "It took a little while to assure them that there weren't being fired and had not done anything wrong, but that we needed them to be truthful with us. Like low-level folks in any organization, they were worried about the potential ramifications of
implicating someone higher up in that organization."
Stroh added that many of the players had no idea that something was even wrong until they started talking with their colleagues elsewhere in the White Sox organization.
"They were just going about their business of playing baseball," he said. "It took awhile for some of them to realize that they weren't the only ones that didn't have all their money. Many of these guys were largely uneducated because they had spent most of their lives training to play baseball because that's the best chance to make money and provide for their families."
To read the rest of this excellent article, click here. Posted By : Michael McCann
More on the Legality of the BCS: The Consumer Welfare Issue
Message posted on : 2010-12-17 - 09:45:00
Following up on last week's discussion regardingthe legality of the BCS under antitrust law, there is one additional defense that can be asserted by the BCS that warrants some consideration. Specifically, in recent weeks BCS Executive Director Bill Hancock has argued that the BCS does not violate antitrust law because it does not harm consumers. In other words, the BCS alleges that it, at most, results in the six major BCS Conferences harming their rivals (i.e., the non-automatically qualifying, so-called non-BCS Conferences), but does not diminish competition overall. As a result, because consumers have not themselves been harmed, the BCS argues that it does not violate federal antitrust law.
This defense draws on a line of antitrust precedent dating back to the Supreme Court's 1962 decision in Brown Shoe Co. v. United States, in which the Court famously stated "it is competition, not competitors, which the [Sherman] Act protects." Following Brown Shoe, courts have increasingly required antitrust plaintiffs to establish that a challenged restraint harm consumers, rather than simply hurt a competing firm in the larger competitive marketplace.
This consumer welfare argument is probably the BCS's strongest defense in response to a group boycott claim focusing on harm to the non-BCS Conferences. While the BCS's ultimate chances of success on this argument are uncertain, the defense is not as foolproof as the BCS would have people believe. Indeed, as I discuss in my forthcoming article "Antitrust & The Bowl Championship Series," there are several significant counter-arguments that can be asserted against the BCS on the consumer welfare issue.
As an initial matter, the Supreme Court has never considered whether a showing of harm to consumer welfare is necessary in a group boycott claim. While the Court could of course ultimately hold that consumer welfare must be implicated in group boycott cases, that outcome is not necessarily certain, given that a classic group boycott claim is - at its root - premised on harm to a competing firm.
More significantly, though, a plaintiff challenging the BCS under antitrust law can point to analogous case precedent to argue that the BCS does in fact harm consumers in a way that is cognizable under antitrust law. Specifically, in the 2004 case of Metropolitan Intercollegiate Basketball Ass'n v. National Collegiate Athletic Ass'n, 339 F.Supp.2d 545 (S.D.N.Y. 2004), the promoters of college basketball's National Invitational Tournament (NIT) sued the NCAA, alleging that an NCAA rule requiring that all teams selected for the NCAA's post-season college basketball tournament exclusively play in that tournament unfairly harmed the competing NIT, preventing the NIT from assembling the best possible field of teams for its own tournament. In response, the NCAA -- like the BCS -- argued that its regulation did not harm consumers, but instead at most only harmed a competitor to the NCAA, and therefore did not violate antitrust law. The Southern District of New York rejected this argument, finding that it could not distinguish harm to the competing NIT from harm to competition itself. Specifically, the court held that because the NCAA's rule prevented the NIT from offering consumers the most competitive basketball possible, consumer welfare had been sufficiently implicated to allow the NIT to proceed with its antitrust case.
A plaintiff challenging the BCS can rely on this precedent to argue that the BCS similarly implicates consumer welfare. For example, this year both Virginia Tech and UConn
received automatic bids to BCS bowl games by virtue of winning the ACC and Big East, respectively. Those invitations came at the expense of higher-ranked teams left out of BCS bowl games, such as tenth-ranked Boise State, who was relegated to the MAACO Bowl Las Vegas. As a result, one could argue that football fans have been harmed by not being able to watch the most competitive BCS games possible, such as one featuring Boise State against ninth-ranked Michigan State, another highly regarded team left without a BCS bid. Similarly, a plaintiff could also argue that the BCS harms consumer welfare when it distributes a disproportionately lower share of revenue to participating non-BCS Conference schools, insofar as these financial discrepancies help foster competitive disparities throughout college athletics. In other words, because the six BCS Conferences receive twice as much revenue for their participation in a BCS bowl game as does a participating, non-BCS Conference, the BCS schools are able to use this revenue advantage to field stronger teams not only on the gridiron, but across a number of different sports. As a result, consumers are thus deprived of the most competitive college athletics events possible at the non-BCS Conference level.
Third, a plaintiff could also point to recent surveys showing that anywhere from 63 percent to 90 percent of college football fans have an unfavorable opinion of the BCS as further evidence that the BCS generally harms consumer welfare.
Finally, the consumer welfare defense likely would not protect the BCS from a potential price fixing claim, which could be alleged insofar as the BCS enables (i) formerly independent, competing entities (the participating conferences and bowl games) to collectively determine the amount of revenue to be distributed to BCS participants, and (ii) various BCS bowls to forgo competition by collectively selling their broadcast rights to television networks. In either case, harm to consumers could be established by pointing to the fact that both ticket prices and television fees rose significantly following the formation of the BCS, costs that have ultimately been shouldered by consumers. While some of these increases can undoubtedly be attributed to higher demand resulting from the BCS's creation of a national championship game, at least some portion is almost certainly the result of the elimination of competition between the formerly competing entities.
Therefore, contrary to the recent statements of the BCS's Executive Director, I do not believe that the consumer welfare defense would necessarily save the BCS from an antitrust suit. While the defense may ultimately enable the BCS to prevail in a group boycott case, there are strong arguments to the contrary available to a plaintiff challenging the system under such a theory. Even then, the defense likely would not offer the BCS protection against a possible price fixing claim. As a result, I believe that the BCS currently remains vulnerable to an antitrust attack.
Posted By : Nathaniel Grow
Institutional Failures: Duke Lacrosse
Message posted on : 2010-12-16 - 13:10:00
I am happy to announce publication of Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, a collection of essays on the Duke controversy just published by Ashgate (and available on Amazon and in supermarket check-out aisles). Contributors include Angela Davis (American), Sam Kamin (Denver and a former GuestPrawf), Robert O'Neil (Virginia), KC Johnson (Brooklyn College, History), Ellen Staurowsky (Ithaca College, Sports Management and Media), Jane Kirtley (Minnesota, Journalism and Law), Craig LaMay (Northwestern, Journalism), and Rachel Smolkin (USA Today).
Doing this book was a great experience, as well as an educational one. I learned that editing chapters is, in some ways, harder than writing things yourself, because you have to balance and preserve multiple voices. I also learned a lot about organizing an edited volume, in particular the need to over-solicit chapters and to see the big picture in advance when finding contributors and seeking chapters on particular issues. I do think the final product tells the full story of the Duke mess from a number of different perspectives and a number of different disciplines, which is what I was hoping to do.
And hey, just in time for holiday shopping. Posted By : Howard Wasserman
Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.
I contributed a chapter to the book and it was titled Using Social Psychology to Evaluate Race and Law in Sports. Other contributors include: Ronald Althouse, Dr. Julian Bailes, Deborah Brake, Dana D. Brooks, Sherri Burr, Todd J. Clark, David Cornwell, andre douglas pond cummings, Timothy Davis, N. Jeremi Duru, Leonard J. Elmore, Stacey B. Evans, John Fisher, Bernard Franklin, William B. Gould IV, David C. Hardesty Jr., Jeffrey Hirsch, Floyd Keith, Marlon LeBlanc, Anne Marie Lofaso, Alfred Mathewson, Cyrus Mehri, Barbara Osborne, Andre L. Smith, Bethany Swaton, Kenneth Shropshire, and Dennis Walsh.
Here are some additional related links:
Watch the 2007 Symposium that inspired this book. Watch a Vidcast about this book. Watch an Interview with andre douglas pond cummings about this book. Watch an Interview with Anne Marie Lofaso about this book.
Congrats again to dre and Anne Marie! Posted By : Michael McCann
Sports Ethics
Message posted on : 2010-12-14 - 19:04:00
In the flotsam and jetsam of the world of sports, and sports law, ethical issues arise more and more frequently. Any particular sport is by definition governed by the rule of law or, more precisely, the rules of the game. But we know as lawyers that ethics -- a moral code of what is right or permitted and what is wrong or forbidden -- and rules or laws are not always the same thing. While our system of laws is ideally based on what we as a society believe is right and just, not all moral precepts find their way into statute books. To cite but one example: only three of the Ten Commandments are actually against the law.
Similarly, the rules in our games don't always include what we know to be moral or righteous behavior, or good sportsmanship. Competitive sports at the highest level seem to favor the Lombardian view that “winning is the only thing” throwing aside the old adage that what matters is “how you play the game.”
In just the last few year or so, we have borne witness to a variety of events tinged with ethical implications: the life stories and travails of Reggie Bush, Michael Vick, Maurice Clarett, Marion Jones, Ben Johnson, Cam Newton, Barry Bonds, and Roger Clemmons, the whole performance enhancing drug mess, Tim Donaghy's confessions about reffing in the NBA, Derek Jeter's overly dramatic tomfoolery at the plate, Belicheck's spygate, Armando Galarraga's perfect behavior in the perfect game that wasn't, the feigning injury ploy used by more than one opponent of the fast moving Ducks of Oregon, Jason Werth's money is all that matters choice to play for the lowly Nationals, Cliff Lee's money is not everything choice to come home to the Phils, and most recently the outrageous behavior of Sal Alosi on the sideline of the J E T S Jets.
In some sports like baseball, a certain amount of cheating is tolerated, even encouraged, in basketball athletes seemingly on every play claim they were fouled or never fouled. In golf, of course, sportsmen still police themselves, readily admit to wrongdoing, keep their own score and assess penalties on themselves when the rules require it. Yet only in football, sometimes the most brutal of games, is there actually a penalty for “unsportsmanlike conduct.”
What do we want to see from these folks inside and outside the lines? Must they show us honor and integrity or should they “just win, baby”? Most professional athletes, after all, fit the description Rick Blaine gave in Casablanca when asked what kind of man Captain Renault was: “Just like any other man, only more so.” All as human as humans can be. Posted By : Alan C. Milstein
Professor Edward Zelinsky on Tax Considerations and Cliff Lee's deal with the Phillies
Message posted on : 2010-12-14 - 11:10:00
Professor Edward Zelinsky, a distinguished tax law expert at Cardozo Law School, checks in with some thoughts on Cliff Lee's decision to sign with the Phillies for 5-year, guaranteed $120 million (instead of signing with the Yankees for 6-years, guaranteed $132 million, or the Rangers for 6-years, guaranteed $138 million -- both the Yankees and Rangers offered 7th year vesting options, too):
* * *
Cliff Lee's decision to go to Philadelphia is interesting from a state and local tax perspective. It had appeared that Lee's choice was between the Yankees (in a state with some of the nation's highest state income tax rates) and the Rangers (in a state with no state income tax). Presumably, the Yankees' bid was designed to offset some or all of the tax disadvantages of playing in New York.
The Phillies confronted essentially the same tax competition with the Rangers as did the Yankees. Pennsylvania is a high tax state in which to live and work. The City of Philadelphia has been among the most aggressive municipalities taxing nonresident athletes for the days they play in Philadelphia.
The obvious lesson is that taxes aren't everything. The sublter lesson is that the Phillies likely paid more for Lee than they would have had they been located in a low tax state and think they will recoup in ticket sales or other revenue streams the extra amounts they pay Lee because of the Pennsylvania tax burden. Thus, in the final analysis, that burden likely falls on the fans. Posted By : Michael McCann
Legal Consequences of Jets assistant coach Sal Alosi tripping Miami Dolphins DB Nolan Carroll
Message posted on : 2010-12-13 - 00:24:00
If you were watching the Jets-Dolphins game this afternoon with 3:11 left in the 3rd quarter, you witnessed a disturbing incident that speaks terribly of the Jets organization and could lead to fines and possibly even legal action. While on punt coverage, Dolphins rookie corner back Nolan Carroll was intentionally tripped by Jets strength and conditioning coach Sal Alosi.
After the game, the 33-year-old Alosi owned up to intentionally tripping Carroll: "I made a mistake that showed a total lapse in judgment. My conduct was inexcusable and unsportsmanlike and does not reflect what this organization stands for."
What will happen? A few things:
1) Alosi will likely be fined and suspended by the NFL under the league's Personal Conduct Policy, which though normally associated with NFL players, actually covers NFL team employees, as well. Expect the suspension to last the remainder of the season. Not only was Alosi's move a complete cheap shot, it was also dangerous: he could have seriously injured Carroll, who seemingly had no way of knowing that a Jets coach would try to trip him. Sure, Carroll was on notice that he might be tackled by a Jets player on the field, but since when do assistant coaches try to trip you while you're running near the sideline? Alosi was also really cowardly - it would be one thing if a Jets player dished out a cheap shot, because he would do so knowing that there could be retribution. But a Jets coach who does so is safely on the sideline, away from any harm.
2) The Jets may also be fined by the NFL. Like respondeat superior/vicarious liablity with an employer and employee, the Jets are responsible for their coaches. Was this a one-time stupid decision by an assistant coach, or was head coach Rex Ryan aware that Alosi might do something like this?
3) Alosi could be fired by the Jets, though his apology probably helps him there. If he has a pattern of misconduct, though, then a firing may be more justifiable.
4) Carroll suffered a knee injury from the tripping; he limped off the field. If the injury proves serious, he could sue Alosi for battery (intentional harmful contact) and also the Jets under a vicarious liability claim. There's a famous case usually taught in sports law classes called Hackbart v. Cincinnati Bengals, the take-away from which is that while NFL players assume the risk of on-field injuries by playing NFL football, they don't assume all risks, including those for clear cheap shots. If Alosi's move wasn't a cheap shot, I don't know what is.
I heard a WFAN caller (the infamous incarcerated bob) claim that two Jets players said that the Jets
were angry that the Dolphins gunner had been going out of bounds during kickoffs, and that this formation was done to stop that. . . .
So, Jets strength coach Sal Alosi and [practice squad players] were standing the zone marked for “Coaches and substitution players only” and they were lined up as close to the edge – both to the playing field and edge of the bench area zone as humanly possible.
Definitely a planned lineup, no? Who had them do this?
I don't think the plan was for Alosi to stick his knee out and knock the player down, but he was put into that position. By whom?
After the game, Rex Ryan professed to be unaware of the situationuntil the team's director of media operations informed him.
Bruce may be on to something and I have a feeling this controversy won't be going away quickly. Keep in mind, if the Jets broke rules in ways that endangered the safety of opposing players, the penalty could be worse than what the Patriots received for "Spygate" (where they engaged in some videotaping that broke rules -- Bill Belichick was fined $500,000 and the Patriots had to forfeit a 1st round pick). Endangering player safety seems worse than taping other team's signals. Posted By : Michael McCann
To begin, though, I agree with a lot of what Mike wrote. For instance, I agree that the BCS can credibly argue that it has created several pro-competitive benefits, such as the creation of a national championship game. I also agree that an antitrust suit against the BCS would itself be unlikely to directly result in the creation of a playoff (although I do believe that a verdict against the BCS would ultimately pave the way to the NCAA adopting a playoff).
However, where I differ from Mike is that I do not think that the pro-competitive benefits created by the BCS would necessarily save the system under antitrust law. Specifically, as Gabe Feldman's excellent 2009 law review article illustrates, when applying the rule of reason most courts would not only balance the system's pro- and anti-competitive effects, but would also (for better or worse) consider whether the BCS's pro-competitive benefits could be similarly achieved via less restrictive, alternative means. In other words, courts would ask whether the BCS could create the same pro-competitive benefits in another way, one that doesn't carry the same anti-competitive ramifications.
For example, I have previouslyargued that the BCS can be accused of violating antitrust law by unequally distributing its revenue to the disadvantage of the non-automatically qualifying, so-called "non-BCS Conferences." Notably, following last season, the BCS distributed at least $18 million in revenues to each of the six BCS Conferences, while the five non-BCS Conferences collectively received a total of only $24 million, despite two non-BCS schools (Boise State and TCU) having been selected to participate in BCS bowl games. Should a group boycott claim be asserted against the BCS on this basis, the creation of a national championship game is unlikely to save the BCS under the rule of reason, because a plaintiff could easily argue that this same pro-competitive benefit could be obtained in a less restrictive system, one where all BCS participants are rewarded equally (or, at least, more fairly) for their participation, regardless of their membership in a BCS Conference. Therefore, because I believe that the BCS is unable to point to a pro-competitive benefit that could not likewise be obtained via less restrictive, alternative means, I believe that it fails to satisfy the rule of reason.
Also, while I agree with Mike that the use of computer ranking systems in the BCS would normally support the legality of the current system, in this case I think that that benefit is mitigated by the questionable reliability of the BCS's computer systems. In particular, as Jeff Passan and Dan Wetzel (authors of the must-read "Death to the BCS") have pointed out, the BCS's computer rankings fail to account for margin of victory, an omission that renders them of highly questionable merit, and has actually resulted in several prominent statisticians calling for a formal boycott of the BCS. The omission of margin of victory most directly impacts schools from the non-BCS Conferences, who generally have to rely on beating lesser competition by significant margins as evidence of their competitive strength. Moreover, just this week several errors resulting from computer miscalculations were discovered in the final BCS Standings, highlighting the lack of safeguards and transparency in the present system.
Similarly, while I also agree that maintaining the significance of the regular season in theory provides a strong pro-competitive argument in favor of the BCS, one can argue that the BCS on balance actually detracts from the regular season for several reasons. First, in the BCS-era major conference teams have become increasingly less likely to schedule challenging regular season, non-conference games, for fear of sustaining a crippling early season defeat. More significantly, though, the BCS renders the vast majority of Division I football games irrelevant to the national championship race, including any late-season games not featuring one of the handful of teams still in the title race.
Finally, Mike also notes that the BCS could defend itself from a claim that it unfairly discriminates against the non-BCS Conference teams by arguing that the current selection process and revenue distribution policies simply reflect the current competitive landscape, in which demand is higher for games involving BCS Conference schools. Indeed, University of Nebraska chancellor Harvey Perlman has himself made this very argument in defense of the BCS. The problem with this argument is that over the last few years BCS bowl games involving schools from non-BCS conferences have actually generated higher television ratings and stadium attendance than some BCS games involving only BCS Conference schools. Most notably, the TV ratings for last year's showdown between non-BCS schools Boise State and TCU in the Fiesta Bowl outdrew the Orange Bowl (featuring two BCS Conference schools) by a significant margin. In any event, this defense by the BCS would also likely succumb to the less restrictive alternatives inquiry, in that the BCS could obtain all of its current pro-competitive benefits under a system in which each conference is rewarded for its own individual contributions. In other words, rather than categorically awarding each of the six BCS Conferences one large sum of money, while giving the non-BCS Conferences a significantly smaller sum, the BCS could instead individually assess the respective contributions of the various participating conferences when deciding how to distribute its revenue. This year, such a system would undoubtedly award a greater share of the pie to third-ranked TCU and its Mountain West Conference than unrankedUConn and the Big East Conference. Under the BCS's current revenue distribution policies, though, the Big East will likely take home more than twice as much revenue from the BCS as will the Mountain West Conference.
Therefore, while reasonable minds can of course differ, I believe that on balance the current BCS does in fact violate antitrust law. That having been said, given the unpredictable nature of the jury trial process, I admit that the outcome of an antitrust suit against the BCS would be far from certain.
The BCS also arguably enhances competition through its use of empirically-influenced rankings. Each team's BCS ranking is a composite of three equally-weighted components -- the USA Today Coaches Poll, Harris Interactive College Football Poll (which comprises 114 voters, including former coaches, players, and journalists) and an average of six computer-based rankings that incorporate largely objective measurements, such as won-loss record and strength of schedule. To be sure, this arrangement is complex and partially opaque -- private companies that run each computer rating can shield their formulas from public scrutiny. Nonetheless, the use of factual criteria to complement the subjective impressions of coaches and journalists can be viewed as a positive: they are designed to improve accuracy and fairness.
* * *
The best antitrust argument against the BCS is its blatant limitation of automatic bowl bids to the six BCS-affiliated conferences (and Notre Dame, which is not a member of any conference). Champions from the five non-affiliated conferences can only earn bids in very limited conditions and lack guarantees of bowl appearances and accompanying revenue and publicity. The BCS, however, could respond that this arrangement is designed to most efficiently maximize overall fan interest, since the BCS-affiliated conferences tend to be larger and with wider fan bases.
MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY
Message posted on : 2010-12-08 - 23:51:00
Wednesday, January 26, 2011
Location: New York County Lawyers Association Building, 14 Vesey Street, New York, New York
Time: 6:00pm
Confirmed Speakers: Kurt Emhoff, Esq., attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager, and Paul Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee. More speakers to come from both sides of the debate, stay tuned!
Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.
Sponsor: EMIPS Committee of the New York County Lawyers Association FREE
RSVP: dlamb@nycla.org Posted By : Paul Stuart Haberman
First, as we know from the case Clarett v. Nat'l Football League, some courts have found that sports leagues' age requirements are immune to antitrust challenge as long as they are collectively bargained with the union. Thus, if the NBPA no longer consents to an age requirement, it will become easier for a prospective NBA player to challenge the age requirement under Section 1 of the Sherman Act. (For more on this point, see Michael McCann's article on the legality of age restrictions in the NBA and NFL, and my article on the same general point under both U.S. and EU law).
Finally, the NBPA's change of position on an age requirement signals it may play hardball in the upcoming round of labor negotiations with the league. Posted By : Marc Edelman
Bowl Battle for Sports Law Blog
Message posted on : 2010-12-05 - 22:14:00
The Golden Panthers of FIU, Sun Belt Conference champions, will play the University of Toledo Rockets in the Little Caesars Bowl in Detroit on December 26. As you know, I teach at FIU; my co-editor, Geoff Rapp, teaches at Toledo.
Is another food wager in the offing? May I propose stone crabs and key lime pie as the food of South Florida. Posted By : Howard Wasserman
Qatar? Is FIFA for Real?
Message posted on : 2010-12-04 - 10:18:00
My thoughts about FIFA's decision to award the 2022 World Cup tournament to Qatar range from the quixotic to the outright illogal. Would any business setup up operations in a place where there are excessive temperatures, little infrastructure, small population and which was criticized in a technical report questioning the feasibility of 12 stadiums in a 20 mile radius? FIFA sue did.
Not to mention the allegations of corruption exposed by undercover reporters from the Times of London accusing two members of the organization's Executive Committee who allegedly offered to sell votes. And the allegations of good old-fashioned horse-trading whereby Qatar would vote for Spain-Portugal (who lost the 2018 bid to Russia) it those countries would vote for Qatar in 2022. Although suspended by FIFA's "ethics panel" (yes, the organization has such a body), no other actions were taken.
Let's think of the logistics. How will hundreds of thousands of fans tranverse this small country. The presentation (found on YouTube here) boasts of water taxis taking fans to the stadiums. It speaks of air conditioning in the stadiums (but what about getting to the facilities?). The computerized designs look impressive, and with the billions of petrodollars at hand, Qatar will no doubt engage in a spending spree to produce a lavish event.
Yet, rejecting the U.S. bid so resoundingly, with a 14-6 vote, makes one wonder about governance and transparency. FIFA's governing statutes (found here) make for interesting reading for what they do not say rather than what they say. Surprisingly general, the statutes and accompanying disciplinary regulations
Posted By : Mark Conrad
Gender Eligibility Rules in Golf
Message posted on : 2010-12-02 - 14:00:00
Earlier this week, LPGA members voted to remove the "female at birth" eligibility rule from its bylaws. The rule change comes on the heels of a federal lawsuit filed in October 2010 by Lana Lawless. Doug Robson provides a comprehensive overview of the Lawless case and other gender-related issues in his latest USA Today article. As sports law historians will remember, there is some precedent on the issue of gender eligibility in sports - Renee Richards v. United States Tennis Association, 93 Misc.2d 713 (1977). In the case, plaintiff Richards prevailed and earned the right to compete as a female in professional tennis tournaments, including the U.S. Open. Posted By : Ryan M. Rodenberg
Cam Update
Message posted on : 2010-12-01 - 22:57:00
Well, the verdict is in and the NCAA agreed with my earlier post that it should not punish the son because the father may have broken some rather serious rules. Not everyone is pleased. Gene Wojciechowski of ESPN writes in an article titled “NCAA spins fairytale fodder” that this has opened up “loophole chaos” and that “The NCAA, for all its countless, mind-boggling rules, is apparently useless when it comes to a father trying to sell his son.”
Come on, now. The NCAA is no slouch when it comes to enforcing its endless set of hypocritical regulations. But it simply found no evidence that either Cam Newton or anyone at Auburn knew anything about the alleged scheme or did anything wrong.
We still know precious little about what went down here. Supposedly, a pastor at a poor church in disrepair through a former player at Mississippi State offered to steer his son to that program in exchange for $180,000. The school didn't bite. The son enrolled at Auburn, which was never asked to contribute to the ailing church, and he became the leading candidate for the Heisman while leading the team to the BCS Championship Game where he will earn Auburn millions of dollars. Now that's a story.
I still say the NCAA did the right thing here. Amazingly. But why? Was it to follow the wisdom of Ezekiel—and me—about not punishing the child for the sins of the father? Or was it to protect the product which at this late date needs Auburn and the best player in the country in its showcase title game? Maybe Wojciechowski knows. Posted By : Alan C. Milstein
Should Bud Selig be Fired? *(by Marquette Law School)*
Message posted on : 2010-11-29 - 08:48:00
At the Adjunct Professor Blog, Mitchell Rubenstein (St. John's) rebukes the Marquette School of Law for retaining MLB Commissioner Selig as an Adjunct Professor. The Marquette press release is here. Prof. Rubenstein writes:
I think this is a total disgrace to law professors and am disappointed in Marquette Law School. No doubt Mr. Selig is an accomplished professional and no doubt that he can be an asset to any school by an occasional lecture about some of his experiences. But it is quite another thing to teach a class to students learning to be lawyers and to evaluate students, i.e., grade them. Law school is not business school and I am sorry to say that this appears to be a publicity stunt by Marquette Law School.
The position of an adjunct professor is certainly the most precarious at most law schools (other than that of the dean), so some angst at this hire is understandable. Adjunct professors -- practicing lawyers, typically, who join the faculty to teach one class (or two) -- serve at the pleasure of the Associate Dean for Academic Affairs, without the security of tenure or a long-term contract. They are relatively poorly compensated (rarely, I would guess, earning their hourly billing rate for time spent), yet engage in heavy-lifting activities like writing exams and grading student papers. Yet because they also have full time jobs in practice, they miss out on many of the speakers, workshops, and other activities that add to the joy of law teaching. To the extent that Prof. Rubenstein's blog speaks for adjuncts, his chagrin at any reduction in the qualifications for such teachers is possible to understand.
Yet the degree of criticism here seems extreme. First, to the extent that the critique is based on Selig's lack of qualification to grade students, it seems that he will be co-teaching a class with full-time Professor Matt Mitten. My guess is that Prof. Mitten, certainly qualified to do so, will be doing most (if not all) of the actual grading in the course.
Prof. Rubenstein also objects to a non-lawyer teaching legal classes. My personal view on this is that diversity in instruction is beneficial to all kinds of students, including law students. While bar exam courses should probably be taught only by faculty with legal experience and education, upper level electives like Sports Law may give students a better educational experience if those with real industry experience are involved. Selig has supervised labor negotiations, imposed discipline under a CBA, and no doubt hired hundreds of thousands of dollars worth of legal services. Would there be any objection to an accountant teaching a class on accounting to JD students? Or an M.D. teaching a class on medicine for lawyers? In my view students can learn a lot from someone who has hired lawyers. Posted By : Geoffrey Rapp
More on Cameron Newton
Message posted on : 2010-11-27 - 13:43:00
Isaac Newton's Law of Gravitation holds that every massive particle of the universe attracts every other massive particle. To state it another way, or according to Cam Newton (no relation), “When God be blessin', the devil be messin'.”
For perhaps the most gifted quarterback to come out of the NFL farm system in a decade, both of these principles mean that success breeds a flurry of rumor mongerers, two-bit accusers looking for their five minutes of fame, and former coaches with axes to grind all intent on bringing down the latest star in the mythically pristine world of college athletics. And one other unlikely culprit: the vaunted New York Times.
It was the Times that first published the attack piece on Maurice Clarett in the off season after Clarett helped Ohio State win the National Championship. It was this article that snowballed into the NCAA investigation, culminating in Clarett's suspension from Buckeyes football, his need to try to enter the NFL early, and his ultimate downfall. In that article, the Times was outraged that freshman Clarett was allowed to retake a midterm when his African American history professor insisted that he do more than skate through classes without learning the material.
Six months ago, the Times wrote no less than three major articles exploring whether Kentucky basketballer and first round draft pick Eric Bledsoe had really deserved a good grade in his Birmingham, Alabama high school Algebra II class. This article also prompted an NCAA investigation as well as one conducted and paid for by the Birmingham School Board, both of which cleared Bledsoe of any shenanigans.
Now the New York Times claims “credit,” along with ESPN, for “breaking” the Cam Newton story in which, so far, no one has proven anything resembling the alleged impropriety had actually happened. Indeed, the Times has already been taken to task for reporting that one of the key whistleblowers in the case had talked to one of the accused principals when at least one of the parties now denies that took place.
I don't know what happened to cause Newton, Cam not Isaac, to attend Auburn as opposed to Mississippi State. I do know the story reported by the Times makes no logical sense though I recognize people sometimes act illogically against their best interests. Mainly, I am troubled by an institution like the New York Times spending its resources and energy in trying to out college athletes, kids really, toiling in a system we all know to be the pinnacle of hypocrisy. Posted By : Alan C. Milstein
Sins Of The Father
Message posted on : 2010-11-26 - 12:55:00
The sports-law world may be about to undergo a debate of biblical proportions.
Auburn, the number two team in the land and, Cameron Newton, its Heisman leading quarterback are, as most of you know, the subjects of investigations both within and outside the NCAA. Cameron Newton's father, a pastor at Newton, Georgia's The Holy Zion Center of Deliverance, is accused of possibly conspiring with a former Mississippi State football player to solicit a $180,000 payoff in exchange for delivering his son unto the Mississippi State football program. Pastor Newton, whose congregation supposedly was in desperate need of funds to refurbish its time-worn church, denies the charges as does a former football player. No one suggests either Auburn or Cam Newton knew anything about these alleged acts, even if they prove to be true.
Current NCAA Commandments hold such conduct to be mortal sins justifying excommunication or worse for everyone involved.
The question is an old one: should the sins of the father be held against the son. The bible itself is split on the issue. Exodus 20:5 speaks of “a jealous God, punishing the children for sin of the fathers . . .” Three books later, at Deuteronomy 24:16, we learn: “Fathers shall not be put to death for their children, nor children for their fathers.”
What shall it be then? Even if the allegations prove true, and those who know Pastor Newton say he is a good man who would never participate in such unholy activities, do we punish the gifted son, if he was indeed an innocent, for the acts of the wayward dad? I think not. We should listen to the Prophet Ezekiel at 18:20: “The son will not bear the punishment for the father's iniquity.” Posted By : Alan C. Milstein
Cheering speech, again
Message posted on : 2010-11-24 - 20:52:00
The Cavs, the NBA, and the Cleveland Police Department are taking steps in preparation for LeBron James' return to Cleveland on December 2. These include trying to limit the anti-LeBron messages fans chant, wear, and display:
The team has done research on the various crude and offensive James T-shirts in circulation locally, and officials will be stationed at entrances to make sure no fans enter with such shirts or signs that disrespect James or his family members. They'll also be in the stands, authorized to take away inappropriate apparel. Fans who have such shirts will be required to remove them and then will be given a Cavaliers-branded T-shirt to wear instead. All inappropriate signs also will be confiscated and officials will be on the lookout throughout the game for inebriated fans or fans who are preparing to throw things onto the court.
"We don't want to create a police state," said Tad Carper, the Cavaliers' senior vice president of communications. "We've always had a real energetic, super-charged home crowd and we want to encourage that for every game, including Dec. 2. We want people to enjoy themselves and express themselves, but we don't want fans to cross the boundaries of decency. We're not going to allow profanity and things like that. We'll have no tolerance for anyone trying to cross those boundaries."
Note the imprecision in this all--is it about profanity and decency or is it about disrespect (and what constitutes disrespect for James and his family? What makes something "inappropriate"? Why shouldn't fans have some leeway to harshly criticize a person they see as a traitor to the city? I am not sure who owns/operates the Cavs' arena, so this may be a moot point as far as the First Amendment is concerned. But I will be interested in hearing how this plays out. Posted By : Howard Wasserman
Sportsmanship, ethics, and cheating
Message posted on : 2010-11-21 - 21:27:00
I generally do not care for the work of Selena Roberts (formerly of The Times, now of Sports Illustrated). She was one of the worst of the Mike Nifong apologists during the Duke lacrosse case and she pushed the "maybe-they-didn't-commit-rape-but-it-doesn't-matter-because-they-hired-a-stripper-so-they-deserved-what-happened-to-them" line even after. Her SI columns see few shades of gray in the world.
Her latest morality play comes from Connecticut high school football. The coach at Southington High got hold of the opposing team's coded play list, which had fallen off a player's armband during first half. The coach used the play list (how many times seems to be in dispute) during the second half to alert his players to what the opposing team was going to run. Southington won 28-14 (the game had been tied at the half). The coach is D.J. Hernandez, a former UConn captain and the brother of Aaron, who plays tight end for the New England Patriots. Hernandez was suspended for one game. The Connecticut Interscholastic Athletic Conference is reviewing the case. Roberts insists that a forfeit is required. And she takes a parting shot at one CIAC member, who is quoted as saying "It's what we call ethics between coaches and good sportsmanship; I don't believe it's cheating per se."
But did Hernandez cheat? First, I am not sure how much of a role it really plays. Teams often know what the other team is going to run or what their plays are--sometimes through good scouting and game preparation, sometimes because of movement between coaching staffs. Recall the Bucs players claims that they knew exactly what the Raiders were going to run during Super Bowl XXXVII--Tampa coach Jon Gruden previously had coached the Raiders. And, of course, "stealing signs" is part of baseball. This is not precisely the same, obviously. But the "advantage" Hernandez's team gained (knowing what plays were being called) is one that often is sought and gained within the rules of the game.
Cheating to me implies breaking rules. In the absence of a prohibition on using the other team's found play list, this does not seem like cheating. Yes, it is bad sportsmanship and probably unethical--not the kind of behavior we would like coaches to engage in. Roberts compares this to NBA players flopping on charges, or Derek Jeter pretending to be hit by a pitch, or Reggie Bush pushing Matt Leinert across the goal line--all of which Roberts sees as examples of society's (and sport's) moral decline. Actually, I find what Hernandez did worse than any of these, as a matter of sportsmanship. Not sure why--maybe because players cannot get away with any of that if the officials are doing a decent job of calling games in the moment. Hernandez was not going to be caught at this by an official on the ground. So, Roberts is right that we should hope for better from coaches, especially at the high school level. And we could have fun with this question in a game of Scruples. On the other hand, this is far from the greatest ethical/sportsmanship breach in history.
But Roberts wants Southington to forfeit its win, a punishment that seems excessive, because it suggests a level of wrongdoing that, absent a clear prohibition on the conduct at issue, is not present here. Posted By : Howard Wasserman
"Law and Economics" - Sports Edition
Message posted on : 2010-11-19 - 14:39:00
The Southern Economic Association ("SEA") annual conference starts tomorrow in Atlanta. Of the 100+ sessions being held during the three day event, four sessions are devoted to sports. In the course of preparing for my own presentation, I perused the other sports-related papers and was struck by the relatively large number with legal overtones. Legal and quasi-legal topics to be examined using an economic lens include: (i) gambling; (ii) Title IX; (iii) minimum age rules; (iv) crime; and (v) referee-decision making. Such prevalence evidences the strength of both disciplines (law and economics) when analyzing important sports issues. Several papers being presented at the SEA conference are available for download now on SSRN. Posted By : Ryan M. Rodenberg
My new Boston College Law Review Article on the BCS and Postseason College Football
This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.
Hope you have a chance to check it out. For another take on this topic, be sure to read Nathaniel Grow's excellent forthcoming article in the Harvard Journal of Sports and Entertainment Law titled "Antitrust and the Bowl Championship Series." Posted By : Michael McCann
A New Perspective on the NBA Age Rule
Message posted on : 2010-11-17 - 06:32:00
In the course of updating my research file and wrapping up a statistical sequel to my 2008 paper about the NBA age rule, I came across a new law review article in the St. John's Law Review by Susan McAleavey. In the article, McAleavey introduces an "alternative" to the NBA current rule - a spendthrift trust system. It has been over a decade since I took Wills, Trusts, and Estates as a 2L, so I had to dust off my Black's Law Dictionary and refresh my memory about the special characteristics of spendthrift trusts. Such trusts are defined as follows:
A trust that prohibits the beneficiary's interest from being assigned and also prevents a creditor from attaching that interest.
McAleavey has a multi-pronged argument supporting her position. I recommend reading her work, especially Section III of the article, which is novel and clever. I plan on citing her article moving forward.
There is a lot of academic research on the topic of minimum age rules in sports (links to several such articles here). The issue will be one of several hot-button topics negotiated by the NBA and NBPA in their upcoming collective bargaining sessions.
For micro-updates on the legality and efficacy of age eligibility rules in sports over the course of the next few months as I work on several papers in this research line, feel free to follow me on Twitter at (@sportslawprof). I am presenting a quantitative analysis of the WTA age rule at the Southern Economic Association conference this weekend in Atlanta and look forward to feedback and constructive criticism as the paper is vetted. Posted By : Ryan M. Rodenberg
Reverse Engineering a Doping Allegation
Message posted on : 2010-11-13 - 06:26:00
In a wide-ranging interview last week, recently retired tennis pro Christophe Rochus made a number of statements about doping. Such commentary is nothing new. Athletes and others affiliated with sports often make vague, generalized statements about doping without implicating anyone specific. In rare cases, athletes such as Jose Canseco and Floyd Landis actually name names. In an op-ed that was published in the Los Angeles Times, Michael Shermer explains the "game theory" reasons for such specificity.
Rochus's allegation falls somewhere in between the two extremes. In relevant part below, here is what Rochus said:
"I remember a match against a guy whose name I will not say. I won the first set 6-1, very easily. He went to the bathroom and came back metamorphisised. He led 5-3 in the second set and when I came back to 5-5...his nose began bleeding. I told myself it was all very strange."
Rochus makes a point of not naming names, but his insinuation is detailed enough to allow one to attempt to "reverse engineer" his statement and pinpoint specific matches (and opponents) that meet his parameters. Interestingly, Rochus doesn't state whether he eventually won or lost the match in question. In addition, he doesn't state whether the match was two, three, four, or five sets long (Grand Slam tournaments and Davis Cup matches use a "best of five" format while all other pro-level tournaments use a "best of three" format). Nevertheless, a perusal of his playing record from 1993 to 2010 reveals 11 matches that possibly match his description. Of the 11 matches, he won seven and lost four. All four losses took place in the past three years. However, publicly-available online match records do not include details on the sequence of individual games within each set, making it impossible to pinpoint the match(es) in which Rochus was trailing 3-5 in the second set before recoving to 5-5. As such, this attempt at reverse engineering Rochus's statement failed to result in anything definitive. However, with tennis and a majority of other sports spending a lot of resources on their anti-doping efforts, such methodology could be helpful the next time someone makes a "partial" allegation pertaining to drug use and doping authorities proceed to conduct a due diligence follow-up in an attempt to find some actual evidence in support of the claim. Posted By : Ryan M. Rodenberg
3 K's for Kickbacks: White Sox are Latest Team with Troubles in Latin America
Message posted on : 2010-11-12 - 11:47:00
In another chapter in MLB's simmering baseball kickback scandal, a Federal grand jury hasindicted a former Chicago White Sox executive and two team scoutson charges that they took kickbacks totaling approximately $400,000 from signing bonuses and contract buyouts paid to secure 23 prospective players between December 2004 and February 2008. A seven-count indictment returned at the United States District Court in Chicago alleges that the White Sox baseball team was defrauded of money, as well as the honest services of the Defendants, who allegedly concealed the kickbacks from the team and its more senior officials.
This scandal first became public after White Sox executive David Wilder was discovered returning from the Dominican Republic in March 2008 with $40,000 in cash.
David Wilder was the White Sox farm system director from 2003 to 2006 and Director of Player Personnel until May 2008. He was responsible for overseeing the Sox scouts in Latin America, including Co-Defendants Jorge Oquendo Rivera and Victor Mateo. Rivera served as Latin American Scout and was directly responsible for overseeing Mateo.
The White Sox authorized scouts to conduct preliminary
negotiations, and Wilder was authorized to permit a player's signing if the payment was under $100,000. If it was more, he obtained authorization from the White Sox GM Kenny Williams. After the signings, MLB conducted background checks, a written contract was sent, and checks were drawn from the White Sox's bank in Chicago. Checks were paid to the player (if Dominican) or to a Mexican team if the signing involved a contract purchase.
The Defendants' written contracts with the team required them to serve “diligently and faithfully” and to provide services with “diligence and fidelity.” The White Sox relied on Defendants to recommend/approve recommendation of signings that were (i) commensurate with the player's skill level; (ii) in an amount that was no greater than necessary to induce a player to sign with the team or to induce a Mexican team to release the player; and (iii) not artificially inflated by inclusion of kickback payments.
The Defendants allegedly misrepresented the amount necessary to sign certain players and omitted material information about the payments which caused the White Sox to pay artificially inflated signing bonuses and artificially inflated prices for players' contract rights. Rivera and Mateo allegedly scouted players that they knew they could secure kickbacks from, and Rivera sought players already affiliated with Mexican teams. Rivera and Mateo directly and indirectly informed Wilder as to whether kickbacks could be obtained.
This indictment could be part of a much more expansive scheme of fraud with regard to MLB scouts in Latin America. Statistics provided by MLB show that signing bonuses of Latino players have gone up drastically in the last decade. The average signing bonus was approximately $29,000 in 2004, but had risen over $100,000 by 2008. ESPN's Outside the Lines conducted a report in September of 2008 that described a “lawlessness” to baseball in the Dominican Republic. MLB claimed in the report that it was unaware of the problem of skimming.
The “White Sox Three” may be the first to be charged, but there are others, even bigger fish, that could face similar charges.
Jim Bowden, erstwhile GM of the Washington Nationals, stepped down in March 2009 amidst baseball's investigation of his alleged skimming activity going as far back as his days as Reds GM in 1994. Bowden has denied any involvement. In August of 2008, the Yankees fired Carlos Rios, their director of Latin American scouting, and Ramon Valdivia, their Dominican Republic scouting director, for their alleged involvement in a kickback scheme. This came after the Boston Red Sox fired one of their own Dominican scouts, Pablo Lantigua, as a result of his alleged acceptance of a gift from a talent hunter, or a “buscone” who represented a Sox prospect that the team had signed. As this article details, the problem is not just a matter of MLB supervision, but also the fact that the system of buscones in the Dominican in deeply ingrained and is tied to the country's crushing poverty.
Worth noting is the fact that the White Sox scandal was the first to break back in May 2008. It will be interesting to see whether this initial indictment is a prelude to further charges in Boston,
New York or D.C.
At a time when MLB is still dealing with the lingering effects of the steroid era, this scandal is certainly unwelcome, but far from reaching a crisis level. The MLB-initiated investigation, carried out by the FBI and culminating in this week's charges, demonstrates the League's commitment to rooting out this problem. While the situation in the Dominican likely won't change any time soon, the League and team officials can keep this type of scandal from escalating by more vigilantly monitoring how their scouts interact with players and player representatives.
The scandal has further elicited discussion about subjecting international players to MLB's June draft for U.S. and Canadian players. Under the current system, the only restriction on a team's acquisition of international players is that they be signed after their seventeenth birthday. But as Rick Karcher point out in this space a short while back, implementation of a draft would have to be collectively bargained and even then, the effect it could have on the entire player acquisition process is unclear.
Hat tip to law clerks, Luke LeSaffre and Brian Konkel, for their excellent work on this piece.
Update 11/20/10: White Sox scout, Rivera, entered a not guilty plea at his arraignment yesterday. His Co-Defendants, Wilder and Mateo, will be arraigned next month.
Posted By : Tim Epstein
Are NBA fines tax deductible? Lamar Odom takes on the IRS
Lamar Odom has sued the Internal Revenue Service, which said he couldn't take tax deductions for $12,000 in sports fines and another $178,000 spent getting himself in shape.
The 6-foot-10 Odom . . . filed suit in U.S. Tax Court to fight an IRS bill for $87,000 over his taxes for 2007. That includes $9,000 in interest. However, unlike many IRS efforts to collect money, the bill did not include a claim for accuracy-related penalties. This might mean the agency sees his case somewhat less harshly than others it duns.
A college dropout, Odom is representing himself without a lawyer. In his personally signed pleading, filed at the court's Washington, D.C. office on October 25, Odom disputed a bill that the IRS sent him in August. “The taxpayer claimed $12,000 of employee business expenses for fines that were assessed by the National Basketball Association,” he declared, writing in the third person. “These fines are commonly assessed on professional athletes and are work related. Therefore the fines incurred are ordinary and necessary employee business expense.” The petition, which listed his address as an agent's office in Los Angeles, offered no details about the nature of transgressions leading to the fines.
Federal law generally prohibits tax deductions for financial sanctions resulting from criminal cases and matters like traffic violations. But Odom wrote, “The fines imposed by the team and the NBA are not imposed for the violation of any government law and are therefore not specifically excluded.”
To read the rest, click here. Thanks to my colleague Stephanie Willbanks, Vermont Law School's tax guru, for the heads up on this story.
Posted By : Michael McCann
Top Five Sports Lawsuits
Message posted on : 2010-11-08 - 17:19:00
Shaun Assael of ESPN has a good article (subscription required) highlighting "five lawsuits that will change sports." Sports Law Blog's Mike McCann and Gabe Feldman are both quoted. The article also has links to actual court documents in each case. Recommended reading! Posted By : Ryan M. Rodenberg
U.S. Department of Justice Weighing Antitrust Suit Against the BCS
Message posted on : 2010-11-04 - 12:00:00
The Salt Lake Tribune is reporting that Utah Attorney General Mark Shurtleff, a long-time critic of the Bowl Championship Series, met yesterday with officials from the U.S. Department of Justice regarding a potential antitrust suit against the BCS. Following the meeting, Shurtleff said he was "blown away" by the government's due diligence on the issue, and found it hard to imagine a scenario where either the state or federal government did not file suit against the BCS. He noted however that he believed the DOJ would be best positioned to challenge the BCS in court, not only due to the likely cost of such a suit, but "because AGs from around the nation often represent the major universities in their states and it is the college presidents who make up the BCS."
For more on Shurtleff's meeting with the Justice Department, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article. Posted By : Nathaniel Grow
New York Law School Second Annual Sports Law Symposium
Message posted on : 2010-11-03 - 17:00:00
I look forward to being a part of next week's sports law symposium at New York Law School. Here are the details (and outstanding work by 3L Alycia Huckabey, the founder and president of the New York Law School Sports Law Society, in putting this event together):
The New York Law School Institute for Information Law and Policy and the
New York Law School Sports Law Society proudly present:
The Second Annual Sports Law Symposium
Date: Friday, November 12, 2010
Location: New York Law School, 185 West Broadway, Events Center, 2nd Floor
CLE Credits:1 CLE credit per panel (no charge). Available to transitional and experienced attorneys.
1:15 p.m. – 2:15 p.m. – Hot Topics in Sports
Moderator: Mark Conrad
– Associate Professor, Law and Ethics, School of Business, Fordham University and New York Law School Adjunct Professor
Lisa Stancati – Assistant General Counsel, ESPN
Chris Park– Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball
Andrew Bondarowicz– President, Aregatta Group, Inc.
2:30 p.m.–3:30 p.m. - From American Needle to Age Limits to Dress Codes: Key Labor and Antitrust Issues in the NBA and NFL
Moderator: Michael McCann– Sports Illustrated Legal Analyst, Professor of Law, Vermont Law School
Mike Zarren - Assistant General Manager and Associate Team Counsel, Boston Celtics
Marc Edelman– Assistant Professor of Law at Barry University's Dwayne O. Andreas School of Law
Alan Milstein– Counsel, Sherman Silverstein
4:00 p.m.–5:15 p.m.- Breaking Into the Sports Industry
Moderator:David Soskin – Assistant Counsel, ESPN
Andrew Fine– Director of Marketing and Broadcasting, RLR Associates
Sarah Stuart– Senior Counsel, Reebok
Bobby Marks – Assistant General Manager, New Jersey Nets
Video of Boston College Law Review Sympsoium on the NCAA at 100 Years
Message posted on : 2010-11-03 - 12:00:00
Video of the panels below can be found at this link.
The NCAA at 100 Years:
perspectives on its past, present, and future
Sponsored by the Boston College Law Review
and by:
On October 15, 2010, Boston College Law School and the BC Law Review hosted an all-day symposium examining the legal issues surrounding the unprecedented growth of the NCAA over the last 100 years and the impact on amateurism, academic standards, and student rights.
The symposium featured a special lunchtime program during which Roy Kramer, Former Commissioner of the SEC and Founder of the BCS and Matthew Sanderson, Executive Director of PlayoffPAC, a federal political action committee dedicated to the establishment of postseason championship for college football, discussed postseason football, the BCS and the National Championship. Jeremy Schaap of ESPN moderated the session.
Video from the event is below.
NCAA Lunchtime Panel: Postseason College Football, the BCS, and the National Championship
Roy Kramer, Former Commissioner of the SEC and Founder of the BCS Matthew Sanderson, Executive Director, PlayoffPAC Jeremy Schaap, ESPN (Moderator)
Nancy Hogshead-Makar, Professor, Florida Coastal Law School Erin Buzuvis, Professor, Western New England Law School Deborah Corum, Associate Commissioner, SEC (Commentator)
Maureen Weston, Professor, Pepperdine Law School Alfred Yen, Professor, Boston College Law School Petrina Long, Senior Associate Athletic Director, UCLA (Commentator)
Michael McCann, Professor, Vermont Law School Joseph Liu, Professor, Boston College Law School Jon Wertheim, Senior Writer, Sports Illustrated (Commentator)
Vikram Amar, Professor, U.C. Davis School of Law Richard Albert, Professor, Boston College Law School Gordon Hylton, Professor, Marquette Law School (Commentator)
Posted By : Michael McCann
Unique role (and problem) of faculty athletics representatives
Message posted on : 2010-11-02 - 22:53:00
Interesting story in this week's Chronicle of High Education. One of the contributors to my forthcoming book on the Duke Lacrosse scandal wrote about faculty oversight of athletics (or lack thereof), particularly the conflicts-of-interest that the athletics reps face. These problems contribute to the perception (if not reality) that college sports (and athletes) are out-of-control and unregulated. It was not an issue in the Duke situation, although it arguably is in many other situations of athlete misbehavior. Posted By : Howard Wasserman
Is Notre Dame Responsible for Student's Death?
Message posted on : 2010-10-30 - 06:24:00
I was interviewed by Maggie Gray of Sports Illustrated Video on Notre Dame student Declan Sullivan, a 20-year-old junior, dying in a tragic accident while filming an Irish football practice earlier this week.
Posted By : Michael McCann
Antitrust Lawsuit Filed Against the NCAA
Message posted on : 2010-10-28 - 12:30:00
As noted by a commenter to an earlier post, a class action antitrust lawsuit was filed against the NCAA on Monday in United States District Court in San Francisco by former Rice University football player Joseph Agnew. Specifically, the suit alleges that NCAA rules prohibiting universities from offering guaranteed multi-year athletic scholarships, as well as rules limiting the number of scholarships a university can offer in a particular sport, violate federal antitrust law.
Agnew started at defensive back for the Owls as a freshman in 2006, before seeing reduced playing time as a sophomore due to shoulder and ankle injuries. Rice then elected not to renew his scholarship for either his junior or senior years. Agnew asserts that but for the NCAA rules, he would have received multi-year scholarship offers when he was recruited out of high school. The suit seeks to represent a class of athletes who, like Agnew, had their one-year scholarships reduced or non-renewed. In its defense, the NCAA immediately noted that one-year renewable scholarships are the norm in higher education not only for athletic scholarships, but also talent-based and academic scholarships in general.
Agnew's lawsuit comes on the heels of news this summer that the United States Justice Department was itself investigating potential antitrust concerns arising from the NCAA's prohibition of multi-year scholarships (previously discussed by Michael McCannhere and here). Moreover, as ESPN.com notes, although courts have historically granted the NCAA some leniency when it comes to rules deemed necessary to preserve amateurism, the NCAA settled a case in 2008 brought by former student-athletes alleging that NCAA rules prohibiting colleges from offering to cover the full cost of attendance violated antitrust law.
One interesting tidbit reported by the New York Times is that Agnew is being represented by Steve Berman of the HagensBermanSobol Shapiro firm. Berman's firm also represents former Nebraska and Arizona State quarterback Sam Keller in his class action lawsuit against the NCAA and E.A. Sports, alleging that the two entities illegally use college athletes' likenesses without their permission in video games. Posted By : Nathaniel Grow
An Update on the WAC v. Mountain West Lawsuit
Message posted on : 2010-10-28 - 09:55:00
Last month the Western Athletic Conference filed a lawsuit against the Mountain West Conference, Fresno State, and the University of Nevada, seeking to prevent the two schools from leaving the WAC to join the Mountain West until after the 2011-12 school year. The schools had stated an intent to join their new conference at the end of the current school year, a move that the WAC contended would have violated its conference bylaws, and would inflict significant damage on the remaining WAC schools.
It now appears that the sides have reached an amicable resolution to their dispute. According to reports, the WAC will announce today that it has reached an agreement with Fresno State and Nevada, under which the two schools will wait until the summer of 2012 to join the Mountain West Conference. In exchange, the WAC has reportedly agreed to accept reduced exit fees from the schools upon their departure, lowering the $5 million exit fee down to around $2 million per school. Posted By : Nathaniel Grow
NY Times on the Sports Fans Coalition
Message posted on : 2010-10-23 - 12:29:00
Today's New York Times features a story on the Sports Fans Coalition, a nonprofit interest group in Washington D.C. formed for the purpose of organizing sports fans and representing their interests in public policy issues. Led by executive director Brian Frederick, the group has initially focused its attention on several issues affecting sports fans, including: "television blackouts (especially at taxpayer-funded stadiums), the Bowl Championship Series and the ballooning cost of attending games. Looming is the possibility of a lockout in the N.F.L. next year." For more on the Sports Fans Coalition, check out its website. Posted By : Nathaniel Grow
More Antitrust and the BCS
Message posted on : 2010-10-21 - 11:30:00
In a recent interview with Salt Lake City's ABC affiliate KTVX, Utah Attorney General Mark Shurtleff announced that his office has completed a draft antitrust complaint to be filed against the Bowl Championship Series. The article indicates that the lawsuit would allege both illegal monopolization and price fixing claims against the BCS. Shurtleff stated that he will be meeting again shortly with antitrust officials in the U.S. Department of Justice, but maintains that he will file the suit alone if the DOJ elects not to pursue the matter. For more of Shurtleff's interview, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article. Posted By : Nathaniel Grow
Agents recouping illegal payments?
Message posted on : 2010-10-16 - 22:40:00
People have been talking about this week's Sports Illustrated, featuring a confessional article by former NFL agent Josh Luchs, who admits to paying numerous college players over the years to induce them to sign with him.
One interesting tidbit: Luchs mentions that prior to 1999, the NFLPA had a rule that required a player who had taken money from an agent to repay that money; the rule was changed in 1999. Thus, Luchs says, agents formerly had "the threat of litigation" as an additional incentive for a player to retain that agent for the rookie contract; after 1999, that incentive was gone, making it more likely that an agent might pay college players and have nothing to show for it.
Here is my question (assuming Fuchs' version is accurate): On what legal theory was the agent able to sue that player? There is no contract, so it can't be breach of contract. Plus, any contract would seem to be void as against public policy (of not paying amateur athletes). Maybe unjust enrichment--the players have received (and retained) something to which they are not entitled? But does some idea of unclean hands kick in--the agent is claiming that the player was unjustly enriched by money the agent unlawfully gave him? Is the claim for a breach of NFLPA rules, made enforceable in court?
Does anyone know the details of this old regime? And does anyone know why the NFLPA changed the rule? Posted By : Howard Wasserman
New Sports Illustrated Column on Tom Hicks post Liverpool Sale to Red Sox owner John Henry
The prospect of Hicks and Gillett pursuing a successful litigation strategy against RBS and NESV in Great Britain is dim. The London High Court unequivocally found nothing wrong in the RBS-NESV sale and in fact admonished Hicks and Gillett to accept it. While Hicks and Gillett profess a desire to return to the British courts, and while they might obtain new evidence that more favorably portrays their legal arguments, they would still have to overcome two adverse decisions from the London High Court. The odds would be stacked against them.
It is more likely that Hicks and Gillett would turn to courts in Texas, where Hicks resides, and Massachusetts, where NESV is based, to remedy any purported grievances. Both states offer laws that prohibit fraud, breach of contract and similar claims that Hicks and Gillett could allege invalidate actions taken by RBS and NESV. If in fact Hicks and Gillett were denied adequate input in the sale of Liverpool under Massachusetts or Texas law, they could obtain a judgment that contradicts that of the London High Court, thereby leading to a second round of conflicting judgments and choice of law uncertainties. The statutes of limitation for such claims under Massachusetts and Texas laws, moreover, are two to three years, meaning Hicks and Gillett could wait some time to collect evidence and build a case before filing a massive lawsuit in one of those states.
On the other hand, courts in Massachusetts or Texas may be disinclined to interfere with the RBS-NESV transaction now that it has occurred. Generally, courts are more likely to prevent a prospective sales transaction than to reject it ex post facto. Such a rejection in this matter would throw Liverpool into a legal quandary. Then again, Hicks and Gillett could insist that, irrespective of consequences to Liverpool, they are plainly entitled to recovery if they were illegally wronged.
Hicks and Gillett may have another goal in mind by threatening or insinuating a lawsuit: motivating RBS and NESV to agree to a financial settlement that would pay Hicks and Gillett millions to go away and to give up any potential legal claims against RBS and NESV. Keep in mind, even if NESV and RSB are confident in the legality of their actions, they could perceive significant value in gaining a clean and permanent break from Hicks and Gillett; a settlement could also save them millions of dollars in potential legal fees -- millions of dollars that could perhaps be used to sign Liverpool and Red Sox players or otherwise improve those teams.
Specifically, last month PlayoffPAC, a political action committee formed in 2009 to advocate for the adoption of a playoff in college football, submitted a report to the Internal Revenue Service challenging the tax-exempt status of the Fiesta, Orange, and Sugar Bowls. The report effectively argues that the three BCS bowls should not be considered Section 501(c)(3) charities in light of the (allegedly) excessive compensation and benefits they give to their executives, as well as their various (and sometimes undisclosed) political lobbying efforts. BCS opponents in Congress have taken notice of the report, urging the IRS to review the allegations. In response, the Fiesta Bowl announced last week that it was undertaking an investigation to determine whether its employees were reimbursed for political donations, a potential felony.
Meanwhile, the BCS is also facing criticism on another front, as Yahoo! Sports columnists Dan Wetzel, Josh Peter, and Jeff Passan have taken aim at many of the common defenses asserted in support of the BCS in their new book Death to the BCS: The Definitive Case Against the Bowl Championship Series. Based on some of the initial reviews, the book is likely to be of interest to anyone following the BCS debate.
Posted By : Nathaniel Grow
New Sports Illustrated Column on Liverpool Sale and Tom Hicks
Message posted on : 2010-10-14 - 20:20:00
I have a new SI.com column on how the Red Sox ownership group is trying to buy Liverpool from a bank that loaned money to former Texas Rangers owners and Liverpool owner Tom Hicks. British and Texas courts have reached contradictory decisions on whether this sale should go through. Which country's courts should trump? Please read the column to find out. Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2010-10-13 - 17:04:00
Recently published scholarship includes:
Erin Abbey-Pinegar, Note, The need for a global amateurism standard: international student athlete issues and controversies, 17 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 341 (2010)
Constantine J. Avgiris, Comment, Huddle up: surveying the playing field on the single entity status of the National Football League in anticipation of American Needle v. NFL, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 529 (2010)
Jillian Bluestone, Comment, La Russa's loophole: trademark infringement lawsuits and social networks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 573-604 (2010).
Anthony Cabot, The absence of a comprehensive federal policy toward Internet and sports wagering and a proposal for change, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 271 (2010)
Matthew Hard, Note, Caught in the net: athlete's rights and the World Anti-Doping Agency, 19 SOUTHERN CALIFORNIA INTERDISCIPLINARY LAW JOURNAL 533 (2010)
Victoria Hayes, Note, Human trafficking for sexual exploitation at world sporting events, 85 CHICAGO-KENT LAW REVIEW 1105 (2010)
Daniel Hauptman, Comment, The need for a worldwide draft to level the playing field and strike out the national origin discrimination in Major League Baseball, 30 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 263 (2009-2010)
Joseph M. Kelly U.S. land-based and Internet gambling; would you bet on a rosy future?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 339 (2010)
Bennett Liebman, The Supreme Court and exclusions by racetracks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 421 (2010)
Jamie Y. Nomura, Note, Refereeing the recruiting game: applying contract law to make the intercollegiate recruitment process fair, 32 UNIVERSITY OF HAWAI`I LAW REVIEW 275 (2009)
I. Nelson Rose, Gambling and the law®: the third wave of legal gambling, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 361 (2010)
Jason Richard Sheppard, Note, The thrill of victory, and the agony of the tweet: online social media, the non-copyrightability of events, and how to avoid a looming crisis by changing norms, 17 JOURNAL OF INTELLECTUAL PROPERTY LAW 445 (2010)
William N. Thompson, Gambling taxes: the philosophy, the Constitution and horizontal equity, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 389 (2010)
Sarah J. Wild, Comment, On equal footing: does accommodating athletes with disabilities destroy the competitive playing field or level it?, 37 PEPPERDINE LAW REVIEW 1347 (2010)
Posted By : Geoffrey Rapp
Favre, Wrangler, and athletes behaving badly
Message posted on : 2010-10-12 - 08:45:00
Michael links to Darren Rovel's column yesterday arguing why Brett Favre's Wrangler ads are still running in the face of the current investigation into his behavior towards a Jets employee when he played for New York two years ago. I am not a Favre fan (and I am really not a fan of fawning media). I really don't care whether Wrangler drops him or not, nor would I be surprised if it doesn't drop him, since athletes have to really misbehave before sponsors begin bailing.
I want to push on the following point, where Rovell says: "But you don't have evidence of adultery and no crime was committed." This, Rovell argues, distinguishes Favre from Kobe Bryant (charged with a crime) and Tiger Woods ("adultery to the hilt," in Rovell's words).
First, by dismissing what Favre allegedly did as "no crime," he overlooks the seriousness of these actions. Assuming Jenn Sterger was unwilling, this is flat-out sexual harassment. Which, while not criminal, is unlawful conduct and a breach of serious federal civil rights rules. Rovell makes the same mistake that I argue David Stern made in the wake of the Isaiah Thomas sexual-harassment verdict--simply writing-off all non-criminal misconduct as not serious and not worthy of league (or sponsor) action. But some social rules are enforced through criminal law and some through civil law; the use of the latter does not necessarily make that rule less important or the breach of that rule less problematic. In fact, I would argue that a player sexually harassing a team employee is more of a problem, and reflects worse on Favre, than getting into a bar fight or being drunk in public (both of which are crimes).
Second, let's be clear about the allegations against Favre. He allegedly propositioned a woman, begged her multiple times to come to his hotel room, and sent her (presumably unwanted) photos of his genitals. And it sounds like the only reason he did not have sex with Sterger is because Sterger was unwilling. I have to say, while technically not adultery, I probably would not still be married if I did that. And I doubt my wife would accept "oh, but there's no evidence of adultery" as an excuse. Rovell draws a line between adultery (Woods) and this non-adultery. But completing the act of cheating on your spouse is not dramatically worse (from a moral or "family man" standpoint) than attempting to cheat on your spouse and failing only because your target was unwilling. Mind you, I don't actually view adultery as an offense against society that warrants league/team punishment or sponsor abandonment. But if you believe that sponsors were justified in dropping Woods, the argument that Favre "never actually had sex with someone other than his wife" does not work as a justification for treating Favre differently (again, assuming the allegations are true). Posted By : Howard Wasserman
Fallout for Brett Favre's Endorsement Deal with Wrangler
Message posted on : 2010-10-11 - 14:09:00
CNBC's Darren Rovell looks at how Wrangler, which has paid Brett Favre millions for his endorsement and for his appearances in a wide-range of All-American type ads, often with footballs and dogs and pick-up trucks, might respond to allegations indicating that Favre, who has been married for 14 years with two children, may have sent inappropriate messages and photos to another woman.
Here is Rovell:
* * *
I spoke to a couple people yesterday who were surprised that Brett Favre's Wrangler jeans spots were still running. Surprised that he was still on their Web site. They were surprised that Wrangler had no comment.
Well, I'm not. Put yourself in their shoes, or jeans. You have an athlete who you've worked hard to connect to your brand. And, unlike many of the endorsement deals out there, it fits.
Then this story comes along, where Favre might have strongly come on to a woman who was paid to do in-stadium sideline and Jumbotron reporting for the Jets when he played there. There are voicemails and pictures of private parts, allegedly his.
Partly as a result of the media age we live in, these pictures are released to the public. The NFL has to look into it because Favre and the woman he approached, Jenn Sterger, were both paid by the Jets.
But where does that leave Wrangler?
Well, let's say worst-case scenario the voicemails are from Favre and so are the pictures. Maybe Favre's not the clean family man we pictured him to be, but there's nothing there that makes it a natural for Wrangler to sever its deal with him.
If all this is true, is it a put off to his reputation? Sure it is. But you don't have evidence of adultery and no crime was committed. Kobe Bryant lost his endorsement deals because he was charged with a crime (the criminal case was later dropped and the civil case was settled). Tiger Woods lost endorsement deals because he was unfaithful to the hilt. . . .
Quick legal point: Should Wrangler seek to get out of its endorsement contract with Favre, the wording of the morals clause in that contract will likely play a major factor. If it is expansively worded--such as covering all types of conduct that is publicly reprehensible, at least as deemed by Wrangler--that helps Wrangler; if it is narrowly worded--such as requiring that the Favre commit a crime--that helps to protect Favre. Posted By : Michael McCann
University of Baltimore School of Law Symposium "The Death of Amateurism: Implications for Sport and Health"
This is the first year for the Sports and Entertainment Law Journal at ASU College of Law. This Journal will be launched at a Conference on Saturday, October 30, 2010, entitled, "A-Rod to Jay-Z: Sports and Entertainment Law in the 21st Century." The inaugural edition of the journal will feature articles from Sports and Entertainment Law professionals from across the nation. For more information about this conference, please contact asulaw.selsa@gmail.com.
The Conference will consist of breakout sessions in which speakers will present topics to smaller audiences. Question and answer periods will follow each presentation so that the event is a much more engaging and dynamic experience for our guests.
We will also be holding a silent auction throughout the day, with items such as suite seats to a Phoenix Suns game, signed sports and entertainment memorabilia from stars such as Beanie Wells and Mike Tyson, tickets to various other sporting events and concerts, and much more! Proceeds from the auction will be put back in to the Conference and the inaugural publication of the Journal.
Confirmed speakers and/or authors for the conference include:
Betsy Goff, the former VP of Business and Legal Affairs at IMG, SVP of Business Affairs at ESPN, and Professor of Sports Management at UMass Amherst Isenberg School of Management
Posted By : Michael McCann
Everything Duke and lacrosse is not "Duke Lacrosse"
Message posted on : 2010-10-08 - 10:06:00
By now, everyone has heard about the "senior thesis" in "horizontal academics" that a 2010 Duke grad wrote as joke, a spoof thesis presentation describing the performance of thirteen Duke student-athletes (seven of them happened to be lacrosse players) with whom she had sex during her time in school. The New York Times got in on the story today, talking about embarrassed and weary the campus is over another scandal.
I have Duke lacrosse on the brain right now. So I was disappointed, although not surprised, that The Times mentioned the now-almost-five-year-old scandal involving false sexual-assault accusations against the lacrosse players. Much as I was not surprised that everyone talked about the Duke lacrosse scandal in covering the murder of Yeardley Love, a UVa lacrosse player, allegedly by her UVa lacrosse-player former boyfriend.
Will Duke lacrosse ever cease to be a reference point for salacious behavior (I cannot call this 'bad' behavior, because having consensual sex with a number of different people is not implicitly bad behavior and, frankly, neither is talking about it) involving Duke University and/or lacrosse? The seven lacrosse players mentioned in the "thesis" certainly did nothing close to bad or even inappropriate (I'm shocked, shocked, to find that male college students have consensual sex with women, often after an evening of drinking). Why would the paper even mention, in connection with them, an old scandal (none of the current players even were on campus in 2006) involving false accusations of criminal misconduct by a corrupt prosecutor and angry faculty? Even if you believe (as some do) that the lacrosse players five years ago were in the wrong for hiring a stripper, the current still situation still does not come close to that. Posted By : Howard Wasserman
The McCourt/Divorce Saga: Was a Key Document Altered?
Message posted on : 2010-10-06 - 09:18:00
Over on M & A Law Prof Blog, Boston College Law Professor Brian Quinn takes a look at the divorce between Frank and Jamie McCourt and specifically how a document from six years ago -- three copies of which use the word "exclusive" in it; three use "inclusive" -- could impact whether Frank is the sole or joint owner:
What with clients sending you only signature pages, it becomes very tempting to make a quick little change in a document that no one will notice. They don't notice ... until they do ...
Posted By : Michael McCann
Changes in Free Agency, Tender/Non-tender, and Arbitration Deadlines
Message posted on : 2010-10-04 - 09:55:00
Last Thursday, Major League Baseball and the Major League Baseball Players Association reached an agreement to alter some of the deadlines regarding free agency, tender/non-tender, and arbitration for upcoming negotiations in 2010 and 2011. The agreement grew out of concerns raised by the Players Association about the 2008 and 2009 off-season negotiation periods. Barry Bloom reported on the changes in an article posted on MLB.com, and the Players Association distributed a press release.
Here are some of the changes as gleaned from those two sources:
1. Currently teams have a 15-day period after the end of the World Series to negotiate exclusively with their current players who are eligible for free agency. That period of exclusivity has been reduced to five days.
2. Contracts must now be offered by December 2. The deadline is now before the Winter Meetings instead of the older deadline that feel after the Winter Meetings.
3. Arbitration must now be offered to free agents by November 23 at midnight. This allows a team to maintain its rights to compensation if a player declines by the new November 30 deadline. If a player accepts arbitration, their salary is decided either by salary arbitration or continued negotiations with just that one team. For instance, last year the Twins offered arbitration to Carl Pavano, and he accepted. Pavano has been a key member of the Twins' rotation this year.
4. Players who are eligible for free agency because they have six years of credited service no longer need to apply within a 15-day window. Instead, they will become free agents automatically at the conclusion of the World Series.
The agreement resolves a number of problems that were slated for the grievance and arbitration process that is part of the current Collective Bargaining Agreement. It also seems to signal a positive approach between the two sides prior to the December 11, 2011, expiration of the current CBA. Posted By : Ed Edmonds
More on choking
Message posted on : 2010-10-03 - 11:13:00
Following on Mike's post about the new book on the science of choking: Prof. Bielock was on Diane Rehm two weeks ago (my wife had told me about the show, but I had not gotten around to the podcast; my plan for this week). Also, the New Yorker covered similar ground in 2000 in a piece called "The Art of Failure" (abstract and registration required). That piece discussed the difference between "choking" and "panicking." The former is what happens when skilled, prepared people lose the ability to perform, in part because they start thinking (and overthinking) about otherwise learned steps. Panicking is what an unprepared or unskilled person does, often involving moving too quickly.
[Update]: I just read an excerpt from Bielock's book; she mentions to New Yorker piece (written, it turns out, by Malcolm Gladwell), but rejects the distinction between panicking and choking. She also offers a definition of choking:
Choking under pressure is poor performance that occurs in response to the perceived stress of a situation. Choking is not simply poor performance, however. Choking is suboptimal performance. It's when you—or an individual athlete, actor, musician, or student—perform worse than expected given what you are capable of doing, and worse than what you have done in the past. This less-than-optimal performance doesn't merely reflect a random fluctuation in skill level—we all have performance ups and downs. This choke occurs in response to a highly stressful situation.
I know Mike is a Sox fan, but I have to let Buckner off the hook as an all-time choke. That was an error. But Buckner was a bad fielder who could not walk and should not have been in the game at that point. The definition above further exonerates Buckner--I am not sure that error was so suboptimal for him. If anything, the bigger choke was by the Sox relievers in the eleven pitches leading up to Buckner's error.
Choking to me requires someone falling from heights and it typically is more than one single play. I would point to Jana Novotna's meltdown in the Wimbledon Women's Final in 1993 or Greg Norman at the 1996 Master's--on the verge of prevailing, their entire games fell apart over a series of plays. Posted By : Howard Wasserman
What is the most infamous example of choking in sports?
I'd have to say it's Bill Buckner in Game 6 of the 1986 World Series between the Red Sox and Mets, when a routine ground ball hit by Mookie Wilson in the 11th inning went through Buckner's legs, leading the winning run to score (the Mets would go on to win Game 7).
The Buckner video can't be embedded in this post, but you can watch it here at MLB.com. Posted By : Michael McCann
New Article: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment
The article is authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).
Here is the article's abstract:
In 2008 the National Collegiate Athletic Association (NCAA) launched its national advertising campaign titled “Going Pro in Something Other than Sports.” As a major strategic and branding initiative by the NCAA years in development, this effort seeks to emphasize the academic rather than athletic abilities of collegiate student-athletes. Humor captivates the audience yet it is the campaign's tagline that the NCAA has “over 380,000 student-athletes and just about every one of them will turn professional in something other than sports” that resonates with the viewer. While this declaration is true, and the promotion's purpose is clearly aimed at calling attention to the core purpose of the NCAA, thousands of student-athletes begin professional sports careers every year. Given the complexities of the amateur to professional transition process, coupled with the fact that student-athletes and their families are woefully unsophisticated and unprepared, colleges and universities have done shockingly little to assist student-athletes through this process.
Many of these student-athletes do not make optimal decisions during this process for a variety of reasons, including conflicting and poor sources of information, the lure of professional money and an inability to understand the many complex legal and regulatory issues surrounding the amateur to professional transition. The results of these poor decisions can be dramatic and affect a long list of stakeholders, including student-athletes and their families, colleges and universities, the NCAA, professional sports leagues and players associations and professional advisors.
Although fans are most familiar with the riches and fame of professional athletes, the reality is that such a lofty status is the exception and not the rule. Far more student-athletes end up as hidden victims of this flawed process. The athlete may suffer permanent career and financial harm while his former school may suffer penalties and embarrassment for any misconduct that occurred while the athlete attended the school. Furthermore, the NCAA and/or the professional league with which the athlete is now involved may have to deal with a paying public critical of their operations and constituents.
This article will discuss the existing process for this transition, the problems therein and the urgency with which these problems need to be addressed. Then we will explain why it is in the best interests of all interested parties to improve the system and make recommendations for doing so.
Among our most meaningful recommendations: • Colleges must enhance their use of Professional Sports Counseling Panels • Colleges must increase funding for Compliance Offices. • Colleges must actively participate in the enforcement of the Uniform Athlete Agents Act. • The NCAA must consider increasing its loan options to student-athletes. The loans can be forgiven if the student-athlete does not break any NCAA rules. • The NCAA must reconsider its Bylaws as they relate to permissible advisors and prohibited agents. • The NCAA should create and fund seminars, conferences, and webcasts for student-athletes on the amateur to professional transition. • The NCAA should consider applying a strict liability standard to Lack of Institutional Control findings in Infractions cases. • Colleges and the NCAA should develop a for-credit course that educates student-athletes in this process. • Professional leagues and unions should consider allowing for the punishment of athletes found to have broken NCAA rules. • Agents and other professional advisors must police their own industry.
To download a free copy of the article, click here. Posted By : Michael McCann
Andrew Weber Profile
Message posted on : 2010-09-28 - 23:35:00
http://www.norwichbulletin.com/carousel/x1129170086/Tigers-GM-loves-striking-out-naysayers Posted By : Michael McCann
New article
Message posted on : 2010-09-28 - 23:30:00
New article by Warren Zola
Posted By : Michael McCann
The 4th Annual Tulane Law School National Baseball Arbitration Competition
Message posted on : 2010-09-27 - 16:06:00
I am pleased to announce that the 4th Annual Tulane Law School National Baseball Arbitration Competition will take place in New Orleans on February 10-11, 2011. The event is a great opportunity for students interested in sports law to compete in a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball.
In addition to the arbitration competition, this year's event will feature a mini-symposium where a number of our “celebrity” guest arbitrators will discuss issues impacting Major League Baseball and the sports industry. The lineup of panelists/arbitrators includes (with more to come):
Josh Byrnes, Former General Manager of the Arizona Diamondbacks.
Carter DeLorme, Partner at Jones Day in Washington D.C., performs salary arbitration work for the Boston Red Sox and Texas Rangers.
Jon Fetterolf, Partner at Williams & Connolly in Washington D.C. and baseball agent.
Clark Griffith, Attorney and AAA Arbitrator, Former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties
Michael Weiner, Executive Director of the Major League Baseball Players Association.
The competition will be capped at 24 teams, so students interested in competing should submit their registration form and entry fee as soon as possible.For more information, official rules, and registration materials, please visit the competition's website.
See you in New Orleans! Posted By : Gabe Feldman
Adding wildcards to make divisions meaningful?
Message posted on : 2010-09-24 - 15:46:00
It turns out I have even more company in my wildcard-makes-division-races meaningful crusade: JaysonStark (and apparently Elias and SI's Tom Verducci). Stark, and everyone else, now recognize that when the two best teams play in the same division (Yanks-Rays this year) and both are guaranteed to make the play-offs, the incentive to win the division all but disappears, because the single benefit of home-field advantage is minimally important (Stark points out that the team without home-field advantage wins 50 % of post-season series).
The solution, according to Stark, Verducci, et al., is not to eliminate the wild card, but to add a second wild-card in each league. Now the two wild-cards play some type of play-off (he debates whether it should be a one-game winner-take-all or best-of-three and how it should be structured [Update:Tom Verducci insists it has to be a one-game playoff, not a series]) for the right to move on and play, presumably, the division winner with the best record. Now there is a genuine incentive to win the division--avoiding having to play anywhere from one to three additional games, perhaps without off-days and perhaps without a break between the wild-card series and the Division Series. And, according to Stark, people close to Bud Selig reportedly say he likes the idea.
I am not quite convinced, because it still devalues the division in non-close races. If a second-place team falls far enough behind the first-place team in its division, it turns its attention to teams in other divisions and just has to focus on staying ahead of the non-first-place teams in those divisions. So the "race" is between # 2 in the East and # 2 in the Central--although those teams will not play one another regularly in September, since the schedule is weighted towards intra-division games late in the season, for obvious reasons. Still, anything that gives a real incentive to finish first is a vast improvement. Posted By : Howard Wasserman
On rewriting history
Message posted on : 2010-09-24 - 15:25:00
Phil Taylor has a piece in this week's Sports Illustrated (I cannot find it on-line) criticizing the NCAA's recent over-reliance on stripping teams and players of wins, records, and awards as punishment for rules violations. He derides the punishment as meaningless and ultimately ineffective symbolism. It is incoherent, because it asks us to disregard our own memories and experiences. We remember Kentucky Memphis losing in overtime in the NCAA Finals in 2008 or Massachusetts making the Final Four in 1996 or Reggie Bush running wild and winning the Heisman in 2005. Yet the NCAA tells us this never happened, even though we know it did. Actually, Taylor points out something that makes this a total farce: The NCAA cannot or will not enforce this penalty beyond its own record books. So while Massachusetts officially did not make the Final Four in 1996, a Final Four banner hangs from the rafters at the UMass arena (the NCAA asked the school to take it down and the school refused). So UMass can, in its physical space, present its own official history, NCAA be damned.
Of course, the problem with this punishment is not that the written record conflicts with our memories. The problem is that the written record becomes our memories over time. As I argued previously, this is an attempt to create an "official" but not "true" or "accurate" historical record, knowing that when collective memories fade (or people die), the official record becomes the true record. One hundred years from now, everyone will "know" that Kentucky Memphis did not play in the 2008 Finals--because that is what the NCAA says. This smacks too much of what totalitarian societies do--creating an "official," government-approved history by formally altering the documentary record and expecting everyone to fall in line with that record.
Yes, this is just sports. But as a matter of intellectual honesty and truth over the course of time, is the NCAA telling us that Kentucky Memphis did not play in the finals in 2008 or that USC did not win all those games in 2005 any different than the Soviet Union telling us that Nikolai Yezhov never stood right next to Stalin in a group picture on the Moscow Canal?
Posted By : Howard Wasserman
Mascot Violence in Ohio: Vicarious Liability?
Message posted on : 2010-09-20 - 15:02:00
On Saturday, the nation's #2 ranked team, Ohio State University, and the non-ranked Ohio University played one another in a clear mismatch. Not surprisingly, Ohio State pummeled Ohio University, at least during the game (Ohio State won 43-7).
Ohio University, however, got some hits in before the game. That was when Ohio University's mascot, Bobcat, twice attacked Ohio State's University, Brutus Buckeye, including during a team prayer. Here's the video
Ohio University has apologized to Ohio State for the incident and also fired the student who was dressed as Bobcat. The student has even been "banned from any further affiliation with Ohio University athletics."
Fair enough; it doesn't appear that anyone was hurt and I'm not sure what else Ohio University could do at this point.
But let's look backward and wonder what could have happened had the student playing Brutus Buckeye been hurt. While he was presumably protected somewhat by his mascot costume, I'm sure he could have been hurt, especially when sucker punched by the other mascot.
If the student was injured, it would seem that Ohio University could have been sued under a vicarious liability theory. After-all, why did Ohio University pick the attacking student to play the mascot? What kind of selection process was used -- were there tryouts, were they other candidates, were any qualifications considered? Also, has this particular student ever shown violent or reckless tendencies? Are there NCAA or individual conference rules or suggestions on selection of mascots, or is that process left entirely to schools? Should it be regulated? Should it be professionalized, like mascots are for pro teams, which hire persons to play mascots?
On the other hand, does a student playing a mascot--like the student dressed as Brutus Buckeye--assume certain risks of injury? But even if he or she does assume some risks, would getting attacked by a fellow mascot really be one of them?
One last point: where was stadium security? Should they have intervened?
Update: in the comments section, Tim and Nathaniel--both, admittedly, grads of Ohio University--point out that mascot fights are not exceptionally unusual so perhaps an assumption of risk defense on the part of their alma mater would have some merit.
Update 2: While none of these are necessarily on-point, we've blogged about mascot and tort issues before. For example, in December 2006, Rick wrote about a lawsuit filed against the New Orleans Saints because its mascot was allegedly negligent in crashing a golf cart into a fourth-string quarterback. In April 2008, Geoff wrote about the Chicago Bulls' mascot, Benny, possibly being negligent in how it high-fived fans. Last but not least (or maybe least), in March 2010, I wrote about the tort implications of flying hotdogs that originate with mascots. Posted By : Michael McCann
New Sports Illustrated Column on Floyd Mayweather, Jr. Domestic Violence Charges
Message posted on : 2010-09-20 - 09:00:00
I have a new SI.com column on Floyd Mayweather Jr.--who earned $60 million last year in boxing winnings and endorsements--being charged with beating up his ex-girlfriend and threatening to beat up his kids if they called the police. Here are some excerpts:
* * *
According to those authorities, Mayweather did much more than steal a phone during his argument with Harris. He also allegedly pulled her hair, threw her to the floor and threatened to kill her. Just as troubling, prosecutors claim that Mayweather warned his children, Koraun and Zion, that he would beat them if they called the police.
* * *
Mayweather, who has a history of legal woes, would be classified as a repeat offender. In 2002, he pleaded guilty to two domestic violence counts and one battery count. Those counts stemmed from multiple incidents evidencing Mayweather's questionable judgment and violent acts. The primary incident involved Mayweather physically assaulting Melissa Brim, who is the mother of Mayweather's daughter, Ayanna. While Mayweather dodged prison time on that occasion, his guilty plea can certainly be used against him for purposes of sentencing. The fact that Mayweather's alleged offenses include crimes against his children, could also work against him. Acts deemed particularly egregious may be considered aggravating circumstances that compel an elongated sentence.
* * *
To read the rest, click here Posted By : Michael McCann
What Impact will Ed O'Bannon and Sam Keller claims have on NCAA?
Message posted on : 2010-09-20 - 00:05:00
Paul Ellias of the Associated Press tackles that question in a new article. He interviews Rick and me for the piece. Here are some excerpts:
* * *
A judge earlier this year refused the NCAA's request to toss out the eight lawsuits filed across the country by former student-athletes. They are now consolidated into a single federal action in San Francisco. The former collegiate athletes accuse the NCAA of antitrust violations, alleging they are prevented from marketing their images because the NCAA locked up their commercial rights forever during their college days.
* * *
U.S. District Court Judge Claudia Wilken said the lawsuits, at first glance, appeared to show the NCAA's "conduct constitutes an unreasonable restraint of trade."
Legal analysts said that ruling will compel the NCAA to turn over many of its business secrets to the players' lawyers. No previous lawsuit has advanced to this stage, said Vermont Law School professor Michael McCann, who specializes in sports law. He said even if the players ultimately lose their cases the documents could add further fuel to the debate over compensating student athletes.
"When we see what kind of money is being tossed around and how much money is made off players," McCann said, "it could invigorate this debate. It will hit at the core issues of amateurism."
* * *
All the lawsuits are seeking class action status to represent untold housands of current and former athletes. Antitrust verdicts are tripled.
"If they are successful, it could mean a lot economically in terms of damages," said Rick Karcher, who directs the Center for Law and Sports at Florida Coastal School of Law.
* * *
To read the rest, click here. To read more on O'Bannon's claims, click here; to read more on Keller's claims, click here.
Posted By : Michael McCann
I have company in disliking the wildcard
Message posted on : 2010-09-16 - 21:47:00
In both 2009 and 2007, I criticized the baseball wild card, arguing that it eliminates close races among the top teams in the league, since both will end up in the post-season, in favor of close races among a lot of lesser teams. Turns out I am not alone in this view. Tom Scocca of Slate makes the same argument, pointing out that the intense back-and-forth between the Yankees and Rays (Rays currently 1/2-game up, following a recent Yankees slide) is nearly meaningless, since the loser makes the play-offs as the wild card.
Scocca does something cute here: He shows the would-have-been standings in the pre-1994 two-division set-up. The result: The Yankees and Rays in the AL East fighting for one play-off spot and separated by 1/2-game with 17 left to play and five teams in the NL West fighting for one spot and separated by three games. And both races would be truly do-or-die: Only one team in each division can make the post-season.
Scocca ultimately reaches the same conclusion as me: More teams (and their fans) get into the post-season, but at the loss of truly winner-take-all competition. Posted By : Howard Wasserman
Marquette University Law School - Sports Law Conference
Message posted on : 2010-09-15 - 15:40:00
Marquette University Law School is hosting its annual conference on October 22, 2010. The title of the event is "The Increasing Regulation of Sports in a Declining Economy." I have attended in the past and highly recommend it. CLE credits are available. The conference website can be found here. Conference panelists include the following:
Matt Banker (L'01), Assistant Commissioner for Institutional Services, Ohio Valley Conference, Nashville, TN
Mary K. Braza, Partner and Chair, Sports Industry Team, Foley & Lardner LLP, Milwaukee, WI
Steve Cottingham, Director of Athletics, Marquette University, Milwaukee, WI
Rodney Fort, Professor, Sport Management and Associate Dean for Graduate and Faculty Affairs, School of Kinesiology, University of Michigan, Ann Arbor, MI
Jeff Gewirtz, Senior Vice President & General Counsel, NETS BASKETBALL/Brooklyn Sports & Entertainment, East Rutherford, NJ
Martin Greenberg (L'71), Managing Member, Law Office of Martin J. Greenberg, LLC, and Member, Southeast Wisconsin Professional Baseball Park District, Milwaukee, WI
Greg Heller (L'96), Senior Vice President & General Counsel, Atlanta Braves, Atlanta, GA (Class of 1996)
Nancy Hogshead-Makar, Professor of Law, Florida Coastal School of Law, and Senior Director of Advocacy, Women's Sports Foundation, Jacksonville, FL
Robert Kaler, Chief Operating Officer & General Counsel, United States Soccer Federation Foundation Inc., Washington, D.C.
Robert H. Lattinville, Partner, Stinson Morrison Hecker LLP, Saint Louis, MO
Ilhyung Lee, Edward W. Hinton Professor of Law & Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri, Columbia, MO
Jim McKeown, Antitrust Practice Chair, Foley & Lardner LLP, Milwaukee, WI
Richard H. McLaren, Professor of Law, University of Western Ontario, London, Ontario, Canada, Counsel to McKenzie Lake Lawyers LLP, and Member, Court of Arbitration for Sport, Lausanne, Switzerland
William Miller (L'96), Assistant Professor, Health, Exercise Science & Sport Management, University of Wisconsin - Parkside, Kenosha, WI
Matthew Mitten, Professor of Law and Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers, Marquette University Law School, and Member, Court of Arbitration for Sport, Lausanne, Switzerland
Matt Parlow, Associate Dean for Academic Affairs and Associate Professor, Marquette University Law School, Milwaukee, WI
Jill Pilgrim, Principal & Business Counsel, Precise Advisory Group; Chairperson-Arbitrator, Financial Industry Regulatory Authority; President, The Center for The Protection of Athletes Rights, Inc.; Principal, Pilgrim & Associates Law Office (New York, NY and Miami, FL)
Marti Wronski, Vice President and General Counsel, Milwaukee Brewers Baseball Club, Milwaukee, WI
Posted By : Ryan M. Rodenberg
WAC v. Mountain West Conference
Message posted on : 2010-09-15 - 08:00:00
ESPN reported yesterday that the Western Athletic Conference has initiated a lawsuit against the Mountain West Conference, California State University-Fresno, and the University of Nevada. The lawsuit relates to this summer's announcement that the two schools were leaving the WAC to join the Mountain West. Fresno State and Nevada both seek to enter the Mountain West starting with the 2011-12 school year. Meanwhile, the WAC contends that the schools are contractually obligated to remain in their current conference until the start of the 2012-13 year.
Specifically, under the WAC's bylaws, schools are supposed to notify the conference by July 1st if they intend to depart the conference the following summer. Both Fresno State and Nevada announced their intended departure on August 18th, but have indicated they would nevertheless like to join their new conference beginning in July 2011. The WAC contends that it would be irreparably harmed if the schools were permitted to leave before July 2012. As stated by WAC Commission Karl Benson:
"We've declared pretty consistently that the football schedule for 2011 would be drastically challenging for the six remaining members if they lost two footballs games in the 2011 season less than a year away," Benson said Tuesday. "We also have obligations and contracts with our bowl partners that would be damaged without Fresno State and Nevada in the WAC in 2011. A contract with our television partner that would be affected. WAC basketball tournament implications, BCS implications, there's a myriad of reasons why Fresno State and Nevada need to fulfill their obligations."
Indeed, if Fresno State and Nevada are permitted to leave the conference in 2011, the remaining members of the WAC will likely have a difficult time replacing games against the two schools on their 2011 football schedules, given the current trend of scheduling non-conference college football games years in advance (as discussed in my forthcoming law review article).
The WAC filed the suit in Colorado state court, and ultimately asks that the court issue an injunction requiring the two schools to remain in the WAC through the 2011-12 school year. A copy of the complaint is available here. Posted By : Nathaniel Grow
Boston College Law Review Symposium on NCAA
Message posted on : 2010-09-14 - 14:00:00
I'm thrilled to be a panelist at Boston College Law Review's forthcoming symposium titled, "Legal Perspectives on the NCAA." Here is information on the symposium, which will be held on Friday, October 15:
One hundred years ago, in 1910, the Intercollegiate Athletic Association of the United States was rechristened as the National Collegiate Athletic Association, or NCAA as it is known today. Since then, the scope and popularity of college sports has grown dramatically. The NCAA and its member institutions hold competitions involving 400,000 student athletes in 23 sports. These events have in many cases become big business. Some universities reap over $100,000,000 in gross revenue from their athletic programs.
The growth of NCAA sponsored sports has created tension between important values like amateurism, academic standards, student rights, and equal access on the one hand and practical realities like competitive pressure and fiscal imperatives on the other. This tension has not always been easy to resolve. Not surprisingly, the NCAA, its institutions, and student athletes have sometimes turned to the legal system to resolve conflicts.
On October 15, 2010, Boston College Law School and the Boston College Law Review will hold an all-day symposium that examines some of the legal issues raised by the NCAA's growth. The symposium will feature four panels during which distinguished law faculty will present academic papers that will be published by the Boston College Law Review. A commentator will then give us his or her thoughts about the paper with an eye to fostering an open give and take about the ideas presented.
The symposium will also feature a special lunchtime program during which William Hancock, executive director of the BCS, and Matthew Sanderson, executive director of PlayoffPac, will discuss postseason college football, the BCS, and the National Championship. Jeremy Schaap of ESPN will moderate.
PROGRAM
Lunchtime Program: Postseason College Football, the BCS, and the National Championship
Roy Kramer, Former Commissioner of the SEC and Founder of the BCS
Gordon Hylton, Professor, Marquette Law School (Commentator)
Posted By : Michael McCann
Floyd Landis as Whistleblower?
Message posted on : 2010-09-13 - 15:49:00
As Mike noted in his SI column last spring, the Landis-Armstrong doping drama has some interesting legal consequences. Mike drew attention to "...the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement."
Under the FCA, whistleblowers can bring "qui tam" actions in the name of the United States to recover monies paid out by the federal government based on false claims. Known as "Lincoln's Law," because of its origins in fraudulent defense contracting during the Civil War, the FCA has been a powerful tool for uncovering fraud and rewarding whistleblowers (known as "relators") for bringing original information to the government's attention. I argued for extension of the FCA model to financial fraud whistleblowers in a 2007 article, "Beyond Protection."
Under the statue, plaintiff whistleblowers can recover a portion -- up to 30% -- of the government's losses due to false claims. The statute also requires that the complaint be filed under seal with the court and delivered to the DOJ. The DOJ's Civil Division lawyers review the allegations and decide whether or not to pursue the case themselves; if they decline to intervene, the whistleblower can still bring the case on behalf of the government. But the fact that the complaint is under seal means that the defendant here, Lance Armstrong, the public and the media have yet to have access to the details of the allegations.
So at this point any analysis of the strength of the complaint is mere speculation (or character attack). Still, it seems like Landis will face some significant obstacles. For one, he will need to establish a false claim to the government -- that Armstrong made some false statement in a request for money. Here, presumably, we're talking about sponsorship money paid out to Armstrong's team by the US Postal Service. Landis will need to prove that, prior to getting the money, Armstrong made false statements regarding his alleged doping. If he made no such statements, or if the USPS funds weren't actually conditioned on any promise of being dope-free, then it would be hard to establish a false claim for payment.
More fundamentally, FCA relators only get paid if they are the "original source" of information not yet in the public domain. This may be the bigger challenge for Landis. What original information about Armstrong has he offered? Was the information he offered already in the hands of government investigators, or already in the public domain, before he supposedly brought it to the government's attention? Posted By : Geoffrey Rapp
Will Donald Fehr take over the NHLPA?
Message posted on : 2010-09-13 - 11:00:00
It's been rumored for a few weeks that former MLBPA executive director Donald Fehr, 62, is set to become the next executive director of the NHLPA. The latest is that he will indeed become director. Over on his blog, baseball attorney Jay Reisinger wonders why is it taking so long:
* * *
The NHLPA has been a rudderless ship since Bob Goodenow resigned in 2005, and in my opinion, the only person that can right the NHLPA is Don Fehr.
Fehr was the executive director of the Major League Baseball Players Association for 27 years before he stepped down in 2009. Fehr was instrumental in making the MLBPA the most powerful union in sports. He guided the players through the collusion grievances of the late 1980's (which resulted in an award of $280M to players) and the 1994-1995 strike. He also guided the players through CBA negotiations in 2002 and 2006, the first negotiations since 1970 that were achieved without a work stoppage.
More importantly, however, he built a union that was in touch with its members. He brought cohesion to the membership, and this cohesion enabled the MLBPA's to successfully navigate their labor negotiations with MLB. Without the support of its members (support which Fehr and his protegees fostered), the MLBPA would not have fared as well as it did.
Fehr left the MLBPA in more than capable hands. This exemplifies another one of his skills; the ability to find, train and keep talented staff members that share his vision . . . the NHLPA has never had this kind of continuity. Its membership has never been as cohesive as the MLBPA's, and its staff has never been as stable as the MLBPA's. The current CBA, which is almost unconscionable from the players' perspective, is a product of the NHLPA's sustained instability, which has been exacerbated by the revolving door at the NHLPA's offices.
It should be clear to the membership of the NHLPA that Fehr is not in this for the money. Fehr never took a salary of more than $1M during his tenure at the MLBPA, while other union leaders such as Billy Hunter (NBAPA) and Gene Upshaw (NFLPA), and even Ted Saskin, were making in excess of $2M. Fehr certainly earned a salary equal to or in excess of his peers, but he never took it. It should also be clear to the membership of the NHLPA that Fehr's success was earned, not serendipitous, which means it can be recreated.
Personally, I do not think that Fehr's request for $3M is representative of any financial desire or vanity. He has made his money. Rather, I think he believes that it is the only mechanism to ensure continuity at the NHLPA. With a higher salary (which is contractually guaranteed), the less likely he will be subject to the midnight coups that have felled some of his predecessors. . . .
To read the rest of this insightful piece, click here. Posted By : Michael McCann
Sports Justice by Roger Abrams
Message posted on : 2010-09-12 - 14:55:00
Our friend Roger Abrams, a professor and former dean of Northeastern University School of Law, has published a terrific book sure to be of interest to many readers on this blog: Sports Justice: the Law and the Business of Sports (University of New England Press, $35). Here's information on the book and endorsements from Harvard Business School Professor Stephen Greyser and me:
* * *
An accessible guide to sports law highlighting landmark cases and personalities
Americans, brought up playing or watching sports, absorb the notions of fair play not simply as integral themes of sportsmanship on the field, but also as values they try to carry into their everyday lives. In this accessible and fascinating look at law and sports, Roger I. Abrams shines the lights on the uniquely complex and important legal issues that face both amateur and professional athletes. From cases involving Title IX, transgendered athletes, rights of the disabled, violence on the playing field, individual and franchise free-agency, amateurism and college sports, and responsibility of leagues for the safety and lifelong health of injured players, Abrams weaves a profoundly moving and immediately relevant story of ever broadening access to, and expanding rights within, the field of sports.
Abrams illuminates these legal cases through compelling storytelling and personal explorations of those involved, such as Jeremy Bloom, the world champion mogul skier who was barred from playing college football because he had modeled clothes for Tommy Hilfiger, and Casey Martin, Renee Richards, and the young gymnasts from Brown University who sought access to the sports they loved, but found that their quest to achieve justice required judicial intervention. There is also one non-athlete: Al Davis, the renegade owner of the Oakland–Los Angeles–Oakland Raiders, who beat the National Football League cartel using the antitrust laws in his effort to gain the respect he was always denied.
Written for sports fans and legal scholars alike, this is an engrossing and surprising story of people battling for their careers and lives, and in the process changing the very nature of sports and society.
Endorsements:
“In Sports Justice, Roger Abrams offers a compelling and dynamic analysis of major sports law controversies over the last century. Abrams reveals how these controversies underscore broader conceptions of justice and how those conceptions, like sports, evolve over time. Through an interdisciplinary approach, Sports Justice offers readers invaluable insight into the relationship between sports disputes and fundamental notions of fairness. Sports, as Abrams convincingly details, reflect as much about social attitudes as they do about the games that are played.”—Michael McCann, professor, Vermont Law School; legal analyst and SI.com columnist, Sports Illustrated
“Both students and practitioners in the legal and business areas of sports can enjoy and learn from Sports Justice. Deeply grounded in law and relevant to the business of sports, it combines insights and information about issues across the realm of sports—from gender equality in sports competition to franchise relocation to player free agency—that will interest those who manage, participate in, and follow sports.”—Professor Stephen A. Greyser, Harvard Business School, creator of Harvard's Business of Sports course
For more information on Sports Justice, click here. Posted By : Michael McCann
The NBA and Weight Clauses: Derrick Caracter joins Glen "Big Baby" Davis as Weighted Players
Message posted on : 2010-09-08 - 11:20:00
Last year I wrote about Glen "Big Baby" Davis's weight clause with the Boston Celtics. Davis, who is in the middle of a 2-year, guaranteed $5 million contract, can earn an additional $500,000 each year if he avoids exceeding a certain weight (he earned it in his first season).
The Lakers are now using the same device with rookie Derrick Caracter, a power forward/center who was the Lakers second round pick (#58 overall) in the 2010 Draft and whose commitment to conditioning has been questioned in the past:
The Lakers signed rookie Derrick Caracter to a $473,000 contract for the 2010-11 season that will become fully guaranteed if he weighs 275 pounds or less on Sept. 10.
Currently, Caracter is only guaranteed $250,000.
3 things about Caracter's weight clause stand out to me:
1) The high value of Caracter's weight clause relative to the guaranteed portion of his contract: Caracter can nearly double his salary if he avoids weighing too much. Talk about an incentive to stay in shape! Think about your income and the opportunity to nearly double it if you merely stay in shape. I doubt our country would have the obesity epidemic it currently suffers from if weight had such a direct impact on our earnings.
2) Unlike with Davis, whose contract is worth between $5 and $6 million depending on his weight, Caracter will not become a millionaire through his deal. To be sure, $250,000 is great money for 98% or 99% of the U.S. population--according to the 2005 census, only 1.5% of American households earn $250,000 or more per year--but he's far from being considered a "rich" pro athlete. I think it's also safe to assume that as a player who will have to fight to keep an NBA roster spot, his future income as a professional basketball player is uncertain and his endorsement potential is pretty low, if not 0, at this point. So the difference in Caracter earning $250,000 and $473,000 this year may be more meaningful for his life than the life difference for Davis--who is poised to have a fairly long NBA career--in earning $5 million, $5.5 million, or $6 million in 2009-10 and 2010-11.
3) Is weight an accurate measure for determining whether an NBA player is in good shape, when pro athletes with a lot of muscle may technically be "overweight"? As I note in my Wisconsin Law Reviewarticle on nutritional labeling, 43 out of the 50 baseball Red Sox and Cardinals players who played in the 2004 World Series were technically overweight. Some advocate using Body Mass Index (BMI) instead of weight, as it considers body fat. But NBA teams apparently view weight as an adequate measure.
Update 2: An agent emails me some interesting thoughts that tie in the role of collective bargaining:
Setting aside the initial issue of whether an all-or-nothing weight clause is even fair, I agree that the use of weight as the deciding factor is less than ideal. What I find interesting is that BMI is probably not any better -- especially in the NBA, where players are far taller than average. Apparently the taller you are, the less accurate BMI becomes:
"the standard Body Mass Index (BMI) is inherently flawed because it assumes that a body's mass increases as the square of the height. Generally mass increases with the cube of the linear dimensions, so a formula using the square will skew to higher BMI's for tall people."
I'm a lawyer, not a scientist, so I can't say how true that is, but it highlights one of the challenges I've found with drafting player contracts, even in this sabermetric era: flawed metrics are often the only ones that can be included in a contract. More accurate measures tend to resemble a pay-for-play situation that neither side has an interest in promoting, thanks to the incentive problems it would create.
I suspect that with Caracter's contract, both sides know that measures other than mere weight would more accurately assess the underlying concern -- whether that's BMI, body fat percentage, or something else -- but weight is the metric that they can get approved under the CBA, so it's what they use.
Update 3: Jimmy Golen of the Associated Press offers some thoughtful comments:
I think the point is that, whether or not weight is the ideal metric for deciding players generally are in shape, you could certainly come up with an ideal weight, or a reasonable playing weight, for an individual that could be used to judge his conditioning. In other words, the team could be saying that Caracter is in better shape at 275 than whatever he weighed when he signed the deal, so they wanted to entice him to lose weight (or, theoretically, gain some).
More to the point: Your suggestion of BMI is moot, because it measures weight as related to height, so unless we think Caracter is still growing (or shrinking), asking him to make weight is the same thing as setting a certain BMI as a goal.
Posted By : Michael McCann
Legal Aftermath of Brawl in Stands at US Open
Message posted on : 2010-09-06 - 10:02:00
We've seen plenty of fights in the stands of baseball, basketball, hockey, and football games, but people who attend tennis matches are often stereotyped as civil or "proper", at least while they are in the tennis stadium (e.g., patrons are expected to be quiet while the match is in play).
That stereotype didn't seem to hold up in the grandstands of Arthur Ashe Stadium (Flushing Meadows, New York) at the U.S. Open last Thursday night, when a male fan insisted on being able to say the "f" word because he paid for a ticket and because he had "a lot of money on the game", while a female fan told him to "shut up" and threatened to have him thrown out of the stadium because of his language, which she deemed inappropriate or abusive. He responded that he wasn't using the "f" word during the actual play, only after each play had ended. She apparently slapped him or tapped him in the face as a way of encouraging him to stop. The argument, which would eventually cause a match between Novak Djokovic and Phillip Petzschner to stop, escalated into a fight between the man and a person described as the woman's father.
Here is a video of the argument and the fight, which starts at about 1:13 -- please note, the "f" word is used about 50 times in 2 minutes, so if you are offended by it, don't watch the video:
Here is the aftermath, courtesy of Robert Dougherty of Associated Content:
Eventually, the US Open fight ended with all three participants being led off in handcuffs. They were not actually arrested, but they were banned from attending any tennis matches in Flushing Meadows for three years.
Although they are not in any trouble from the police, the participants are now out to hurt each other in court. The three are filing civil harassment lawsuits against each other, not long after the evidence of their US Open fight hit YouTube.
Here are a few thoughts of mine:
1) I wonder if the participants might eventually face criminal charges, given the rather compelling Youtube evidence suggesting they committed battery; their physical contact was clearly neither accidental nor necessary and it probably endangered the safety of people seated around them. The video of the fight was not, from what I can tell, immediately available to police -- if the police had the video at the time they detained the participants, the participants probably would have been arrested.
2) I wonder about how crowd control measures during tennis matches differ from those taken to monitor the crowds of other sporting events. Along those lines, could the U.S. Open end up a party to civil litigation for arguably not providing adequate safety? Why didn't security officers show up? How physically close were they? How close should they have been?
3) Not to "blame the victim" and hindsight is of course 20/20, but instead of confronting this belligerent guy, might the female fan and her father, and probably others around them, have been better off alerting stadium security? Getting in his face, and possibly slapping/tapping him, probably weren't the best ways of encouraging him to stop swearing. Then again, maybe they tried to find security and couldn't.
4) If he was truthful in claiming that he was not swearing during the actual play, but only between plays, was he necessarily breaking any stadium rules? Does the volume of his swearing
matter? Posted By : Michael McCann
Possible Collusion and the 85 Percent Rule: Are NFL Teams trading and cutting rookies to avoid paying into collectively-bargained pool?
Message posted on : 2010-09-01 - 20:29:00
The National Football League Players' Association is reportedly looking into whether teams are trading rookie players who would be cut in order to avoid cutting them themselves and having to pay 85% of the player's salary. If they are doing that, they could be deemed to be colluding, which generally means two or more teams acting in a way to deprive players of collectively-bargained rights. The NFL-NFLPA collective bargaining agreement contains anti-collusive language under Article XXVIII. Here's more on the allegation:
In a pair trades on Monday, Washington sent 6th round draft pick tight end Dennis Morris to St. Louis for a conditional pick and the Rams sent 5th round pick defensive end Hall Davis to the Redskins for a conditional pick. On the same day, Philadelphia traded 6th round pick running back Charles Scott to Arizona for 6th round pick cornerback Jorrick Calvin.
Under collective bargaining rules, if a player is cut by the team that drafted him, that team is required to pay 85 percent of that player's salary into a pool that is distributed at the end of the season.
The Washington Redskins may have gotten up to some hijinks with their trade involving recently-cut defensive lineman Hall Davis and a prior trade involving tight end Dennis Morris. According to Chris Mortensen of ESPN, both the Redskins and the St. Louis Rams are under investigation by the NFLPA for attempting to circumvent the little-known "85 percent" rule.
In layman's terms - any rookie that is drafted by an NFL team is owed 85 percent of his salary if subsequently cut by the team which drafted him. By trading Davis to the Redskins, and having him cut by Washington rather than St. Louis, the Rams save $272,00. Further, the Redskins will save the same $272,000 dollars owed to Morris, who was traded to the Rams earlier in the week and is also expected to be cut.
Might this be collusion by NFL teams to avoid paying salaries -- and salaries of obscure rookie players who when cut attract minimal media attention and who individually may not have much influence on the Players' Association? Or is it just a case of a bunch of late round picks -- whose chances for making any team are likely low -- simply not being good enough to make an NFL team?
Posted By : Michael McCann
The Impact of Tiger Woods Scandal on Morals Clauses in Endorsement Contracts
Message posted on : 2010-09-01 - 15:31:00
John Gibeaut of the American Bar Association Journal examines how the scandal involving Tiger Woods and infidelity will impact the use and enforcement of morals clauses in endorsement contracts. Below are excerpts from his piece, which includes comments from Peter Carfagna, Brian Socolow, and me, as well as from Porcher Taylor III and Fernando Pinguelo, both of whom recently authored the excellent article The Reverse-Morals Clause: The Unique Way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals, Cardozo School of Law's Arts & Entertainment Law Journal (2010).
* * *
Morals clauses went largely unquestioned for decades, even during the McCarthy era, when studios used them to fire writers accused of being Communists. Nearly a century later, morals clauses have become ubiquitous in the sports and entertainment industries, as sponsors continue to use them to alter or sever relationships with errant celebrities they hire to hawk everything from breakfast cereal to razor blades.
* * *
Woods isn't the first celebrity whose personal behavior has landed him crosswise with sponsors, and he's unlikely to be the last. Others recently caught up in their own conduct and who paid varying prices for it include Los Angeles Lakers guard Kobe Bryant, charged in a rape case that was later dismissed; Philadelphia Eagles backup quarterback Michael Vick, convicted and sent to prison for running a dogfighting ring; British supermodel Kate Moss, caught snorting cocaine on camera; and Olympic swimmer Michael Phelps, also caught on film—hitting a marijuana bong. Nevertheless, Woods' major-league cheating really scratched some raw nerves.
"It's the image of perfection that's not true," says Vermont Law School professor Michael McCann, also a legal analyst for the magazine Sports Illustrated.
Early morals clauses essentially were non-negotiable adhesion terms that left celebrities no wiggle room. But they may have contained as much bark as bite.
"These clauses would be standard, but very little attention was paid to them," says Bridgewater, N.J., practitioner Fernando M. Pinguelo. "Now I'm finding that they're not only negotiated more but being drafted more carefully in favor of the company."
* * *
The presumption of innocent until proven guilty almost has been reversed, and sponsors almost assume something is going to happen," says Cleveland lawyer Peter A. Carfagna, who represents athletes. "And what is disrepute? They want it to be in the eye of the beholder. And they want to be able to cancel the next day, without benefit of a court proceeding."
The more specific the clause, practitioners say, the better off each side comes out. For example, a sponsor may insist on cancellation in the event of any arrest, while a celebrity may try to push the line back to, say, an indictment or conviction for a felony. Noncriminal conduct,
such as marital infidelity, is an especially touchy issue.
* * *
To read the rest of this extensive article, click here. This topic was the subject of a symposium at Cardozo Law School in March titled The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses.
Posted By : Michael McCann
"Let ‘em Play"
Message posted on : 2010-09-01 - 07:00:00
Professor Mitchell N. Berman of the University of Texas School of Law has posted a new essay that may be of interest to some readers. ‘Let ‘em Play': A Study in Sports and Law considers the potential arguments regarding whether officials should call infractions less strictly during the end of a close match than throughout the rest of the game.
The abstract for the essay is below:
Serena Williams was eliminated in the semifinals of last year's U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium's Kim Clijsters. Williams's explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams's outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport's rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.
Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.
This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law's “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.
If you'd like to read the essay in its entirety, it is available to be downloaded here. Posted By : Nathaniel Grow
New Sports Illustrated Column on Roger Clemens Arraignment
In the months ahead, Clemens' legal team will also consider whether to accept a trial by jury, as is Clemens' right under the Sixth Amendment, or to request a bench trial, which would leave the question of Clemens' guilt or innocence to Walton. Clemens is likely to accept a jury trial, as he could avoid a conviction if just one of 12 jurors does not find guilt beyond a reasonable doubt. That very scenario played out in the trial of former Illinois governor Rod Blagojevich, who earlier this month avoided conviction on 23 of 24 counts of lying to the FBI because one of 12 jurors dissented. On the other hand, if Clemens' legal team believes that jurors are likely going to regard Clemens with the same disfavor expressed by many Americans, a bench trial may become a more viable option.
Another key consideration for Clemens' legal team will be whether the former pitcher testifies in the trial. Clemens is not required to testify, and should he decline, the jury will be instructed to not infer guilt from Clemens' choice. There are practical consequences, however, to a defendant not testifying. If Clemens' case boils down to dismissing various prosecution witnesses as liars or persons with flawed memories, a jury may want to see Clemens himself take the stand, look people in the eye and capably respond to questions raised in cross-examination. Clemens' lawyers, however, may not be comfortable with their client answering carefully-crafted questions asked by seasoned and talented prosecutors. After all, federal prosecutors do not enjoy a conviction rate of approximately 90 percent by accident; they are often among the best trial lawyers around. Clemens cannot testify unless he is willing to face prosecutors' questions.
* * *
Still, a number of attorneys remain perplexed by the logic of Clemens to seek a public Congressional hearing to repudiate allegations found in the Mitchell Report and then to testify without obtaining immunity, which would have precluded the charges he now faces. According to the attorney mentioned above, "The decision to have Clemens actually ask to testify before Congress, and then to testify without immunity, was idiotic. No good lawyer would have agreed to that without first obtaining immunity for the witness. That kind of decision-making doesn't bode well for Clemens in this trial. Even if Clemens insisted on testifying, a lawyer is useless if he or she only goes along with the client's wishes."
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To read the rest, click here. For a related video on SI.com, see
Posted By : Michael McCann
MLB financials and stadium funding
Message posted on : 2010-08-28 - 00:27:00
I don't understand finances enough to say much about Deadspin's (leaked)disclosure of the financial statements for a number of major league teams, which show that a number of the poorer small-market teams (including the Pirates, Marlins, and Mariners) actually have turned pretty good profits by keeping player payrolls way down and raking in (but not spending) revenue-sharing dollars. Several issues seem to be brewing here.
First, some are questioning revenue sharing as a workable means of leveling the economic playing field (at least without some other cost-and-spending measures, such as a salary cap or salary minimums) because of the incentives built into the system. Second, and relatedly, some are suggesting that teams (at least small-market teams) have no economic incentive to win because it is difficult to both win and turn a profit.
Third, and most interesting in these parts, is what this means for the future of stadium funding. The ridiculously advantageous deals that teams have been able to extort from communities have depended on cries of poverty from teams, which insist that they need the stadium to be economically competitive and that they currently lack the resources to pay for the stadium themselves and need substantial public funding. Certainly that was true for the Marlins, who are getting a roughly-$600 million ballpark for only $155 million ($35 million of which is a loan from the county) and keeping big chunks of stadium-generated revenue, with the city paying $125 million and the county about $360 million. But the Deadspin docs showed that the Marlins turned a $49 million profit in 2009. Several cityofficials would like to reopen the stadium deal and require the Marlins to contribute more towards the project.
The Marlins's response has been that "a contract is a contract." Which probably is true, if a bit arrogant. My contracts-professor colleague says it would take some showing that the city/county would not have entered the deal on these terms but for the Marlins' claims of poverty and that the Marlins either affirmatively lied about or withheld their true financial information--tough things to show. But this could have an effect on the deals that other small-market teams (notably the A's) are able to swing in the coming years.
The boondoggle nature of the public-stadium game is becoming clearer. But since it shows no sign of changing, I go back to my First Amendment interests. If public funds are going to continue pay for these cathedrals--which really only benefit the teams themselves--on largely false pretenses, then I should be able to wear whatever t-shirt I want, chant whatever I want, and decide whether or not I want to stand during coerced patriotic rituals. So there. Posted By : Howard Wasserman
Another Potential Legal Dispute Over a Breached College Football Scheduling Ageement
Message posted on : 2010-08-27 - 09:00:00
The SportsLawTalk blog has identified a potential legal dispute brewing between Indiana University and Central Michigan University regarding a breached college football scheduling agreement. Several years ago, IU and CMU entered into an agreement calling for their football teams to play three games against one another, with the first and third games to be held at IU, while the middle game was scheduled to be played this fall at CMU. CMU won the first game in Bloomington37-34 in 2008.
IU subsequently backed out of its scheduled road game at CMU, while maintaining its desire to host CMU for the final game under the agreement. CMU objected, arguing that by cancelling the middle game, IU had breached the entire contract, effectively cancelling all remaining games. The parties now dispute the amount of liquidated damages owed under the contract.
Specifically, the contract's liquidated damage provision provides: "If either party breaches this contract, the party causing the breach shall pay to the other party a liquidated sum of $150,000 for games #1 and #2, and $200,000 for game #3, which shall represent liquidated damages to the, non-breaching damaged party" (courtesy of Central Michigan Life). Under IU's interpretation of the provision, it is only required to pay CMU $150,000 for cancelling the second game, while CMU owes it $200,000 for cancelling the third game. Not surprisingly, CMU disagrees with that interpretation, and argues that IU owes it $350,000 for its breach of the contract resulting in the cancellation of the final two games under the agreement.
This is the second time in the last two years that a contractual dispute over a breached football scheduling agreement has become public, following the 2008 litigation between the University of Louisville and Duke University (discussed here and here). As I argue in a forthcoming law review article, these disputes are likely to continue to arise in the future. Specifically, many scheduling agreements signed back in the early 2000s (like the IU-CMU agreement) provide for relatively small liquidated damages
amounts. Meanwhile, following the advent of the 12-game schedule in Football Bowl Subdivision college football, the price that major programs are willing to pay to host a single non-conference home game has skyrocketed, now regularly eclipsing $1 million per game. As a result, many schools find themselves in a situation where it is most economically efficient to simply pay the liquidated damages amount provided for in the older contract, in order to enter a much more valuable contract negotiated in today's market. However, because these scheduling agreements are not always clearly written, and do not always anticipate certain eventualities, disputes such as the one between IU and CMU are all but inevitable. Therefore, this is unlikely to be the last legal skirmish between two college football programs over a breached scheduling agreement. Posted By : Nathaniel Grow
NFL Sunday Ticket and American Needle
Message posted on : 2010-08-26 - 11:16:00
Elliot Turner at Wallstcheatsheet.com has written an interesting post speculating on the effect that the Supreme Court's opinion in American Needle v. National Football League had on the NFL's recent decision to make the NFL Sunday Ticket package available via the Internet. Previously, fans had to subscribe to DirecTV's satellite television service in order to receive the Sunday Ticket package.
Specifically, Turner concludes: "With the league's practices called into question with regard to apparel [in American Needle], it appears that the powers that be smartened up in order to preempt what could have become another strong legal challenge to the NFL's ability to negotiate contracts as a single entity."
Turner's piece is available in its entirety here. Posted By : Nathaniel Grow
Watching your favorite NFL Team Lose and Resulting Family Violence
The National Institutes of Health spent $314,613 over two years on a study that determined that family violence increases about three times as much on the Fourth of July as it does after the local NFL team suffers an “upset” loss.
“Taken together our findings suggest that emotional cues based on the outcomes of professional football games exert a relatively strong effect on the occurrence of family violence,” the authors of the study concluded. “The estimated impact of an upset loss, for example, is about one-third as large as the jump in violence on a major holiday like the Fourth of July.”
The researchers also determined that an “upset” loss by the local NFL home team was not linked to nearly as great an increase in family violence as were Christmas Day, Thanksgiving Day, Memorial Day, New Year's Day, and New Year's Eve.
By a vote of 5-1, the California State Athletic Commission decided this week that Antonio Margarito need not be reissued a professional boxing license on its watch following the revocation of his license after a Plaster of Paris-like substance was found on Margarito's hand wraps before his bout with “Sugar” Shane Mosley on January 24, 2009. Subsequently, all eyes in the boxing world immediately turned toward Texas, where Margarito could face Manny (Pac Man) Pacquiao in a potentially explosive welterweight showdown at Cowboys Stadium on November 13, 2010. Texas has a decorated history of issuing licenses to boxers that have otherwise been banned in the U.S.A., including Evander Holyfield following his administrative suspension in New York several years back, and the late Edwin (El Inca) Valero. While Holyfield, Valero, and others were all suspended elsewhere for reasons pertaining to own their health and well being, Margarito had his license revoked for endangering the health and well being of someone else. Will such a distinction make a difference to the Texas Department of Licensing and Regulation? We shall soon find out. But what we know right now are the rules and regulations that govern Texas' decision. A quick review of those rules and regulations, as well as an intangible or two that may play into Texas' decision, follows...
For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2825/2010-08-20.html. Posted By : Paul Stuart Haberman
Clemens, though, is not an ordinary person. For starters, he will be able to afford the kind of legal representation that few defendants could imagine. Being able to assemble a "legal team" is itself often a marker of wealth. Clemens will likely retain seasoned and prominent defense lawyers who have tried and won perjury cases and also those who will adroitly attack the DNA evidence offered by the government. Given that a conviction could carry a prison sentence, expect Clemens to spare no expense.
* * *
Attorneys for Clemens will also attack the testimony and purported evidence of McNamee.
They will criticize his background, question his truthfulness, and through retained DNA experts, challenge the admissibility and reliability of the syringes and other paraphernalia purportedly containing Clemens's DNA. If there is even a shred of doubt as to how McNamee stored and handled the allegedly incriminating materials, DNA experts retained by Clemens will probably be able to paint a story that leaves the jury with serious doubt. Clemens' lawyers will also portray McNamee as throwing Clemens under the bus to avoid a government prosecution of his own.
The government's best evidence against Clemens may have nothing to do with DNA evidence. Instead, it may be the likely testimony of Pettitte, whom prosecutors will probably call as a witness. Pettitte told Congress in 2008 that Clemens admitted to him that he used Human Growth Hormone. Clemens' lawyers will have to show that Pettitte somehow misremembered the conversation he had with Clemens, or that Clemens may have made the comment in jest. Whether a jury will convict Clemens based alone on a disputed conversation with Pettitte or possibly conversations with other players -- but in the absence of credible physical evidence -- remains to be seen. Juries are not always predictable. And that itself may be Clemens' greatest worry.
Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee
Message posted on : 2010-08-17 - 22:30:00
A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog).
The panel divided on two aspects of personal jurisdiction analysis (warning: This post of interest to civ pro geeks only).
First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee's allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits "related to" the defamatory statements and thus the defamation claim; contacts "relating to" a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.
Second, the panel divided over the proper understanding of the "effects test" of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be "directed at" the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens' reputation would be felt in Texas. Moreover, the "sources" idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.
This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction--the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York. Posted By : Howard Wasserman
New SI.com Column on whether Mets can Void Contract of Francisco Rodriguez
Message posted on : 2010-08-17 - 15:01:00
I have a new column on SI.com on the possibility of the Mets voiding the contract of closer Francisco Rodriguez ("K-Rod"), who was charged with assault by law enforcement officials and also suspended two games by the Mets for a post-game fight with his girlfriend's father that led to Rodriguez tearing a ligament in the thumb of his pitching hand. Here's an excerpt:
* * *
Players have enjoyed success in grievance proceedings when they concern contractual terminations. In 1987, for instance, the San Diego Padres voided the contract of pitcherLamarr Hoyt for what appeared to be solid grounds: Hoyt had been sentenced to jail time because of multiple drug charges, including intent to distribute cocaine and attempting to smuggle drugs from Mexico into the U.S. As a drug smuggler, it would seem that Hoyt did not "conform his personal conduct to the standards of good citizenship and good sportsmanship." Nonetheless, the Players' Association filed a grievance and an arbitrator,George Nicolau, deemed the punishment excessive and restored Hoyt's contract.
Keep in mind, the Players' Association has a duty to protect the fiduciary interests of all players. It must therefore protect against precedent-setting outcomes, such as the voiding of a guaranteed contract. In the context of Rodriguez, if his guaranteed contract can be voided for getting injured in a fist fight, what else could trigger a voidance? Could the very essence of guaranteed contracts be jeopardized? The fear of the so called "slippery slope" often supplies motivation to the Players' Association to fight a team, even if the public finds a particular player's behavior reprehensible.
Instead of voiding Rodriguez's contract, the Mets could try to reach a financial settlement that ends Rodriguez's affiliation with the team. A settlement, which would necessitate approval from Rodriguez and the Mets, along with support from commissioner Bud Selig and the Players' Association, could work to everyone's advantage. Rodriguez would likely obtain a significant portion of the remainder of his contract and become a free agent. Given that he is one of the best closers in the game and still only 28 years old, he would probably attract significant interest from other clubs. For their part, the Mets would rid themselves of a controversial and injured player who let his team down. The team would also save significant money in the process.
A settlement, however, may prove complicated and acrimonious, and also be skewed in favor of Rodriguez. That is because contract-ending settlements between big league teams and players are usually preceded by a grievance filing and also end up being tilted in favor of the player.
* * *
To read the rest, click here. Posted By : Michael McCann
Dustin Johnson and the Fairness of Punishing Him: Lessons from the Law
Message posted on : 2010-08-17 - 09:45:00
If you watched the final round of the PGA Championship this past weekend, you probably feel bad for Dustin Johnson. He held a one-shot lead entering the final hole and bogeyed that last hole, leading--so it seemed--to a three-way tie with Bubba Watson and Martin Kaymer.
Losing a lead on the last hole and having to enter into a playoff would probably be disappointing to any golfer. Especially in a championship.
As it turns out, though, Johnson was about to experience a profound and unique kind of disappointment. Instead of entering into a playoff, Johnson received a two-stroke penalty for grounding his club (meaning the club touched the earth behind the ball prior to the swing) in a bunker, which is against PGA rules, though is allowed on most places on a golf course. Johnson, like other golfers, had been briefed on the rules of the course before the tournament and warned that it had many sandy areas which would be considered bunkers. Here is a video of what happened from SI.com:
Ashby Jones of the Wall Street Journalwonders whether the penalty fits the crime, since Johnson's mistake gave him no apparent advantage. Jones interviews me for his story, which is excerpted below:
But is it fair to penalize someone when the rationale behind a rule isn't triggered? Golfers are prohibited from grounding their clubs in sand traps because such a move could disrupt the lie of the ball — or, by dislodging just a bit of sand, clear the club's path to the ball ever so slightly.
But in the case of Johnson, it was fairly clear that neither happened. His grounding of the club appeared so slight — it was hard to imagine the move had given him an advantage.
In such a case, should the penalty still be enforced?
Writing at the WSJ, Jason Gay has his doubts: “Instead of a rollicking three-way finish, the 2010 PGA will be remembered for a cold-blooded, by-the-book decision — enforcing the rules of a bunker that nobody outside of a few officials knew was a bunker.”
“It's an interesting question: what should the PGA do when applying a law when the rationale behind the law isn't really being promoted?” asked Michael McCann, a sports law expert at Vermont Law School. “Should the PGA start taking appeals?”
In law, said McCann, a sanction can often be reduced post hoc. If you're given a stop-sign violation for coming to a rolling stop at a deserted intersection, a judge can bump cut your fine in half, let you off with a warning, etc.
But in sports, said McCann, there often isn't time to take an appeal, especially in this instance, when darkness is
settling in and other golfers (not to mention thousands of spectators and millions of television viewers) are waiting for play to continue. “It's just not practical,” said McCann.
McCann said that that's why rules in sports are often applied so formalistically — for the sake of efficiency.”It's the old debate about brightline rules versus flexible standards,” he said. “Neither is perfect. Bright line rules are good for predictability, but sometimes lead to unfair outcomes. More flexible standards can lead to more fair outcomes in some situations, but lack predictability and sometimes efficiency.”
To read the rest, click here. For a couple of good comments from other folks on my Facebook page:
Jordan Ablon: My take is that the PGA did nothing wrong. As bad as the rule may be, it was a rule and he had plenty of notice. He chose not to take 2 minutes to read the rule. It was a MAJOR event and he didn't read the rules of an unusual course.
Marc Isenberg: On the face, the rule is sensible (it was, after all, designed as a bunker) and once it was violated, you knew the PGA was going to mete out "justice" like Inspector Javert. But, if the PGA wanted those bunkers to be treated as such, then the galleries should not have been allowed in the "field of play." For four straight days, until the 72nd hole of a major championship, the PGA did not do their job. This was entrapment. Literally (bunkers = traps, for those who don't follow golf).
Posted By : Michael McCann
Signing with a Big League Team out of High School: College and Law School are still reachable goals
Multiple industry sources have indicated to WEEI.com that the Red Sox and fourth-round pick Garin Cecchini are closing in on a deal that should be completed prior to midnight's deadline for signing draft choices.
Cecchini, a shortstop out of Barbe High School in Lake Charles, LA, who is expected to play third base as a professional, is verbally committed to play at LSU next season. A committed student and aspiring lawyer, Cecchini wanted to go to college and told major league teams that he would indeed do so if he wasn't given a $1.75 million signing bonus.
To add to Bean's story, I think it's always worth noting that college and law school/other graduate school are not "one-shot" deals in life. I often point that out in regards to NBA players who skipped college to take guaranteed income. People can always go back to college later in life, and that is certainly true of law school as well, as many law students are in their 30s or older (and, for what it's worth, I've found that law students with life experience are often among the better or even best students).
So if baseball doesn't work out for Cecchini after a few years in the minors, he'd still only be 21 years old. And while, as a former pro baseball player, he would no longer be eligible to play NCAA college baseball and thus could not get a baseball scholarship, he could still afford college tuition and law school thereafter courtesy of a $1.75 million signing bonus from the Red Sox (assuming, of course, he's not irresponsible with his money -- if he is, he probably shouldn't be going to law school anyway).
In fact, MLB teams often guarantee college tuition for high school players if they end up not making it (see this article on former Red Sox draft pick Steve Lomansey, whom the Red Sox lured away from a scholarship to Boston College). Players can also try what's probably a very difficult route of going to law school while playing in a pro league. Minnesota Supreme Court Justice and former Minnesota Viking Alan Page did just that and has done extremely well. Posted By : Michael McCann
Why to care about cheering speech
Message posted on : 2010-08-16 - 14:45:00
I spend a lot of time writing and talking (here and in my scholarship) about the free speech rights of fans at sporting events. At times, this has me defendingyo-yo's who are just trying to piss people off.
But every so often some meaningful speech can, does, and should occur at sporting events. Case in point is yesterday's protest against MLB and Commissioner Bud Selig allowing the 2011 All-Star Game to be played in Arizona. Now, the fans who ran onto the field were wrong and should have been arrested. Similarly, the fans who hung a banner in the center-field batting eye (a place that banners are not allowed) were wrong, although they should have been allowed to hang or display the banner any other place that banners and signs are permitted.
The point is that there is no place more appropriate for a protest of MLB policies, and the politics of those policies, than in the stands at a baseball game. It is an appropriate subject for baseball fans to talk about. And players and other fans are the appropriate audience for the speech. In other words, we need to protect cheering speech at sporting events because that speech often has a real and significant political core. And if protecting a genuine political protest means also having to tolerate some "Yankees Suck" t-shirts or some profanity-laced fan tirades, well, that is the cost of living in a society with free speech. Posted By : Howard Wasserman
The Impact of a Slotting System in the MLB Draft on Teams and Agents
Message posted on : 2010-08-16 - 11:04:00
Interesting note from ESPN.com's Mike Andrews, the President and Executive Editor of SoxProspects:
. . . the deadline for major league teams to lock up their remaining unsigned picks from the 2010 draft is tonight at 11:59 pm ET. Entering Monday, the Red Sox have signed sixteen of their fifty-two picks. Since 2005, Boston has signed, on average, about twenty-eight picks per season. This year, the Sox selected several players that were expected to be “tough signs” from the get go, and as such it's expected that the team will be signing another crop of draftees before the clock strikes midnight tonight.
One other consideration is that MLB's Basic Agreement (the CBA) expires after the 2011 season, and there have been rumblings that a mandatory draft slotting system could be put in place with a new CBA – so some big market teams may be pondering spending the cash on draftees this season and next while the getting is good. . . .
As I wrote in my piece on why MLB teams can't trade draft picks, the MLB Draft doesn't work like the NFL, NBA, or NHL drafts, where, generally speaking, the best players are drafted first.
In the case of the NBA and NHL drafts, salaries for drafted players (at least those taken in the first round) are "slotted" in their respective collective bargaining agreements. So if you're drafted 15th in the NBA Draft or the NHL Draft, your salary is largely pre-determined and can't be negotiated to a significantly different amount than the amount slotted for the 15th pick (see the NBA's CBA, Exhibit B for actual numbers). And you're better off being drafted 15th instead of 16th, because the slotting values descend from the first pick down, so the 15th pick always earns more in his contract than the 16th pick. The NFL doesn't slot salaries for draft picks, though there is a salary cap for the amount each teams can spend on all of their draft picks and a slotting system seems likely to be found in the next NFL CBA.
Baseball is different. Because there is no slotting of salaries for MLB draft picks (though salaries for each draft slot are "recommended" by the commissioner in an non-binding way) and because there is no rookie salary cap for MLB draft picks, some very talented prospective draft picks' whose salary demands are too high for small market teams, and who have the leverage of being able to play college baseball, are not drafted by small market teams with high draft picks. Instead, they fall in the draft to big market, more successful teams like the Yankees, Red Sox, and a few others which have lower draft picks but can meet those players' salary demands. So players whose talent, absent salary demands, would make them high draft picks fall to lower selections and are financially rewarded for that happening -- and in a 50-round draft, it happens quite a bit. To illustrate, here is New Orleans.com's Ken Trahan, who reports today on the
Red Sox essentially raiding LSU's baseball team through the draft:
LSU's baseball recruiting class has taken yet another major hit. Delgado Community College outfielder Lucas LeBlanc has opted to sign with the Boston Red Sox.
On a flight to Boston this morning. Just last Monday, LeBlanc turned down a signing bonus of $325,000 and he told many that he would be attending LSU. The Red Sox upped their offer and got their man, reaching an agreement over the weekend. Sources tell NewOrleans.Com/Sports that LeBlanc may have gotten close to $500,000 to sign. . . . LeBlanc was an 11th-round draft pick of the Red Sox in the Major League Baseball draft.
---
Meanwhile, Boston may continue taking a chunk out of the LSU baseball talent pool.
The Red Sox are expected to offer 'top ten' money to compensatory first round selection [and LSU rising senior] Anthony Ranaudo (38th overall pick), according to one source.
Also, Barbe Louisiana [high school] infielder Gavin Cecchini (4th round selection) will reportedly be offered mid-first round money to sign with Boston.
Players dropping for financial gain also occasionally happens in the NBA draft, where there is no slotting for players selected in the second round -- those players usually receive the league minimum, but sometimes an international player falls to the second round because it doesn't make financial sense for him to join the NBA if he is going to be subject to first round slotting when he could stay in Europe making millions. But that is uncommon and doesn't happen nearly as often as it happens in baseball.
If a slotting system is adopted in MLB effective for the 2012 draft, we could see some big spending from MLB teams in this year's and next year's drafts. This will be their swan song for using non-top draft picks to draft top players with big signing demands.
Also, beginning in 2012, the work of baseball agents (or in some cases a relative or "family friend" acting as a de facto agent) would seem poised to change.
While baseball agents presumably want their clients to get drafted as high as possible even in today's draft system, I suspect seeing a client "fall" to a team like the Yankees or Red Sox might actually be preferred over seeing that client taken earlier by the Pirates or Marlins or a similar small market team. That would change, though, in a draft where salaries are predetermined, regardless of a drafting team's resources. In that setting, the goal of the agent would clearly be to have his or her player drafted as high as possible. So agents could still play a role -- they could tell teams that unless a represented player who has remaining college eligibility is drafted in the first round (or by whatever threshold), teams would be better off drafting other players since the represented player will attend college or in some cases continue to play college baseball. The slotted money has to be good enough to turn pro. Posted By : Michael McCann
NHL 2011, Electronic Arts, and the Licensing of Junior Hockey Players
Message posted on : 2010-08-14 - 12:47:00
I noticed that in the upcoming video game NHL 2011, which is the latest game in a very popular series published by Electronic Arts, video game players can play as junior hockey league players:
For the first time ever, begin your career playing for the Canadian Hockey League's Memorial Cup. Playing with and against licensed CHL players from the Western Hockey League, Quebec Major Junior Hockey League, and Ontario Hockey League, experience both highs and lows of junior league hockey action. Get scouted, enter the NHL entry draft, and see if you can become the greatest player of all time.
I assume that the licensed junior hockey players are being compensated for their names, images, and likenesses being used in the game. Are junior players professional athletes, though? It would seem they are. While compensation for junior players is a
sf
version of NHL
Posted By : Michael McCann
More on Title IX: When Gregg Easterbrook Attacks
Message posted on : 2010-08-12 - 16:42:00
Over at ESPN.com, Nancy Hogshead-Makar, the senior director of advocacy for the Women's Sports Foundation and professor at Florida Coastal School of Law, has a good article up defending the recent decision in the competitive cheerleading-Quinnipiac Title IX case. Hogshead-Makar does a particularly strong job of responding to Gregg Easterbrook's attack—also posted on ESPN.com—of the decision and of Title IX itself. For those of you who missed it, Easterbrook's column focuses on two arguments: First, he essentially concludes that Title IX is no longer needed, has descended into “absurdity,” and “slog[s] on, causing asinine intrusions.” Second, he challenges the court's conclusion that competitive cheerleading is not a sport for purposes of Title IX. As Easterbrook puts it, “where does a federal judge get off saying it is not athletics athletics yet a volleyball bouncing back and forth across a net is?.... Courts have no business sticking their noses into such issues.”
I respect and enjoy Easterbrook's work (both sports and non-sports related), but he misses the mark on both arguments. Let's take his attack on Title IX first. Easterbrook relies largely on anecdotal evidence and a loose (or mis)reading of the opinion to draw the sweeping conclusion that Title IX is unnecessary, if not destructive. For example, Easterbrook asserts that “[g]irls' and women's sports are now successful, popular and in some cases even self-sustaining. You can find the proof of that at almost any high school in the United States. My kids' high school fields 15 girls' or coed athletic teams.” Of course, Easterbook's kid goes to Winston Churchill High School (Easterbrook links to that fact in his column—I didn't track it down on my own), which happens to be ranked as one of the top 100 high schools in America, and is located in Potomac, Maryland, which happens to be one of the wealthiest and most well-educated towns in America.
Easterbook can't really believe that the opportunities for female athletes at Churchill High School prove that women have equal opportunities across the country and that Title IX is unnecessary--that's like arguing that we no longer need Title VII because we have a black president--and Hogshead-Makar takes him to task for ignoring the evidence. She notes that the “simple facts are incontestable. Women still lag substantially behind men overall nationwide in every measure of equality in athletic departments, including scholarships, budgets, coaching salaries, facilities and competitive opportunities. In 2005-2006, male athletes received approximately $162 million more than female athletes in college athletic scholarships at NCAA member institutions.” Significantly, the impact of this inequality extends well beyond sports. Earlier this year, a column in the New York Times detailed two studies that showed that increasing girls' sports participation had a direct effect on women's education and employment and on long-term health.
Has Title IX helped women achieve more athletic opportunities? Yes. But, as Hogshead-Makar points out, there is more work to be done, and Title IX is an important tool for ensuring that women get equal access and opportunity to athletics (and for maintaining the access and opportunities they eventually achieve).
Easterbrook's second criticism—that a judge should not be responsible for defining what activities constitute a “sport”—simply misses the point. The Quinnipiac case did not ask the judge to decide if competitive
cheerleading constitutes a sport. Instead, the case asked if competitive cheerleading constitutes a sport for purposes of Title IX. That's not just a semantic distinction. As Judge Underhill explained, for an athletic opportunity to count as a sport under Title IX, “it must be genuine, meaning that it must take place in the course of playing an actual ‘sport' and it must allow an athlete to receive the same benefits and experience that she would receive if she played on another established varsity squad.”
Judge Underhill did not conclude that competitive cheerleading was unworthy of being called a “sport,” and was somehow inferior to other sports. Instead, he concluded that it was unworthy of constituting a sport for purposes of Title IX because it did not provide athletes with the same experience they would receive if they played on an established varsity squad. Why? First, the team competed against varsity cheer teams, club cheer teams, sideline cheer teams, all-star teams, and even high school cheerleaders. As Judge Underhill wrote, “no other Quinnipiac varsity team is forced to play such a motley assortment of competitors…If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.” Second, there was no uniform set of rules for the cheerleading competitions—the team competed in 10 events with at least 5 different sets of rules. Third, no members of the cheer team were recruited off campus. Instead, every cheerleader was selected from students already enrolled at Quinnipiac. Fourth, there was no genuine postseason competition—the “national championship” for competitive cheerleading was open to all schools' cheerleading teams, even non-competitive cheerleading teams. And, the championship included an element never used during the regular season competitions (a “spirit” segment, where teams were judged based on the reaction their routine elicited from the crowd).
In other words, Judge Underhill's decision had nothing to do with competitive cheerleading's status as a “sport.” If any college had a team—whether it be cheerleading, volleyball, or baseball—that competed against a “motley assortment” of teams without a uniform set of rules, recruiting, or a real postseason, it would not be considered a sport for purposes of Title IX because it would not provide student athletes with a genuine, real opportunity to participate in varsity athletics.
Reasonable minds will continue to disagree about the methods and impact of Title IX, but if we can agree that gender equality in athletic participation is a goal, we still have a long way to go, and the Quinnipiac decision is a step in the right direction. The case did not sound the death knell for competitive cheerleading. Instead, it will force schools to improve the sport so that it can provide a genuine athletic opportunity for student-athletes. As Hogshead-Makar wrote, “[c]heerleading has long been part of athletic events and will continue to be part of athletic departments. The opinion will not change that fact. Instead, the opinion assures that Quinnipiac will provide all female athletes…with the full range of varsity benefits.”
[For an interesting perspective on competitive cheerleading, please check out this new post from Howard Jacobs over at the Athletes Lawyer blog.]
Update: The College Sports Council, a national coalition of coaches, athletes, parents, and fans who are devoted to preserving and promoting the student athlete experience, has posted a response to Hogshead-Makar's piece. It is definitely worth a
read. Posted By : Gabe Feldman
But for the vast majority of players, unless there is reasonable cause, the collective bargaining agreement mandates no testing for the likes of cocaine, marijuana, amphetamine, opiates (morphine and codeine) and phencyclidine (PCP) until April. Over-the-counter pain medicines, such as Tylenol or Aleve, are not tested, nor are prescription pain medicines such as Vicodin, Demerol, Percocet or OxyContin.
By contrast, testing for steroids and illegal performance enhancers occurs throughout the year.
* * *
Given that NFL players are tested for substances of abuse only during the offseason and for steroids throughout the year, while the other two "physical" pro leagues -- the NBA and NHL -- test for substances of abuse throughout their seasons, a cynic might infer that the NFL and NFLPA are more worried about players using steroids to get bigger and stronger than those same players using illegal drugs for treating pain or getting high.
* * *
. . . As NFL players become bigger and stronger, and as their hits and tackles become harder and more injurious, do the NFLPA and the league have an increased responsibility to monitor pain relief? And how can the two determine if players are using painkillers to treat pain or merely to get high?
These won't be easy questions to answer in a sport that requires physical collisions at high speeds and a league that cannot -- and should not -- monitor the lives of its players 24 hours a day, seven days a week.
But they are important to ask because pain is a sensory response to bodily damage. If pain is muted, a person may not appreciate the damage inflicted. If that person endures the violence of NFL games week after week, not adequately comprehending bodily damage could cause serious and long-term health problems. These questions are also important to ask because NFL player contracts usually contain more non-guaranteed money than guaranteed, and NFL players are expected to "be tough" and "play hurt." One could easily imagine them feeling pressured to use whatever it takes to stay on the field.
Some in the medical community believe that a rise in painkiller abuse among NFL players could prove uniquely telling. Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania and a noted expert on the intersection between sports, medicine and ethics, believes there is a potential and understudied link between painkillers and other controversial injury issues for the NFL, mainly concussions. "Painkillers are one kind of a marker of a level of injury suffered by NFL players," said Caplan. "Their level of use can indicate the toll of the game on players."
The Impact of American Needle v. NFL on Sports Apparel Industry
Message posted on : 2010-08-09 - 12:00:00
Daniel Walsh of the Advertising Specialty Institute has a very thoughtful and comprehensive article on the litigation background of American Needle v. NFL and the impact of the decision on the sports apparel industry. The nearly 2,000 word article titled, "Reversing Field," is unique because it looks at the decision partly from the vantage point of the sports apparel industry, as opposed to offering solely an antitrust or sports business perspective. Here is an excerpt:
* * *
Then came the 1980s and a fashion explosion. Sports caps and jerseys became hugely popular, thanks to fashion tastes and the rise of sports on cable television. “It just became a major, major thing,” [Jeff] Carey [American Needle's in-house counsel] says. “Sales went through the roof. We grew accordingly.”
So did others. New businesses jumped into the mix, and the sports leagues gave out licenses to more and more producers. Licensed merchandise flooded the market. The increased supply and competition drove down prices. In turn, that decreased NFL royalties from the sales, Carey says.
It also created “chaos,” according to Matt Powell, an analyst with SportsOneSource, which follows the sporting goods industry. Different firms would make products of varying quality, some better than others, Powell says. “The league really realized that this was a failed business concept,” he says. “Let's put aside the legal side for a moment. This just wasn't working, and the league had to do something about it.”
NFL owners voted in 2000 to move toward exclusive licenses, an increasingly common trend in licensing. Among the exclusive licensees was Reebok, which claimed the hat contract at American Needle's expense After that move, NFL hat prices rose $10. “I remember American Needle had this huge catalog in like 2000,” says Dave Weintraub, chief operating officer of Pinnacle Promotions in Atlanta. “It was just beautiful. It was like 150 pages. Then they just fell off the map.”
License to Succeed?
Licensing is often the first and last word when it comes to professional sports merchandise. “You're in with a license situation, or you're not,” says Bob DeMasse, co-owner of Colorado-based APC, which once held exclusive promotional product licenses for the NBA's Denver Nuggets, NHL's Colorado Avalanche and Colorado Rapids of Major League Soccer. “You're obviously a major player if you're in, but if you're not, there obviously are no options.”
But, while licensing may seem like a golden ticket for a few lucky distributors, it can also be a millstone. For one, some leagues offer preferred-bidder status to companies that make up-front payments. Preferred status allows distributors, for example, to be 5% higher than the next closest bid and still win the contract. The problem is those up-front fees can run into the tens or hundreds of thousands of dollars, depending on the size of the contract being pursued. These fees and licenses can outweigh almost everything else.
Tim Lavin thought his NFL ties would help secure business for his company, Mad Dog Promotional Products. The former University of Southern California starting fullback had handled security for the NFL's San Francisco 49ers and Oakland Raiders, as well as the Golden State Warriors of the National Basketball Association, so he had the contacts. As it turns out, it wasn't enough.
“The tricky part is, even if you had $200,000 to shell out, I find with so many people involved, there's heavy bidding,” Lavin says. “Your profit margin is so low to begin with that we'd be lucky to get a 10% to 15% markup. Then if you're paying 8% to 9% to the NFL, the profit margin is very low.”
* * *
To read the rest, click here. Posted By : Michael McCann
This Day in Sports Law: The Cubs say "Let There Be Light"
Message posted on : 2010-08-08 - 16:58:00
Today, August 8, is the 22d anniversary of the first night game at Wrigley Field, between the Cubs and the Phillies. Or at least the first attempted night game. Play was called because of rain after 3 1/2 innings--which many took as a sign from God--and the first official game was played the following evening, against the Mets. So the date still is appropriate, even if you do not read this until tomorrow.
This is an appropriate part of our "This Day in Sports Law" series, since the whole thing occurred in the shadow of zoning and land-use wrangling, primarily between the residents of Wrigleyville (supported by state and local government) and the Cubs and Major League Baseball. The Cubs began pushing for lights in the early 1980s, even threatening to leave Wrigley. In 1984, MLB Commissioner Peter Uebberoth threatened that if the Cubs made the World Series, their home games would be move to Busch Stadium (a threat that became moot when the Cubs gagged a 2-0 NLCS lead to San Diego). The City Council dug in, initially passing an ordinance that effectively banned night baseball in Chicago (grandfathering in Comiskey Park); the Illinois General Assembly did the same. The controversy even worked its way into an underrated Chicago movie, Nothing in Common, where Tom Hanks is approached to sign a "No Lights at Wrigley" petition and Hanks says he already signed.
The City finally relented, agreeing to a maximum of 18 night games each season, none on Fridays or Saturdays, with sharp restrictions on street parking to push people into paid lots or onto the El. The numerical limit has been played with--the Cubs play 28 night home games this year, although the Friday/Saturday restriction remains in place (most of the night games are Mondays and Tuesdays, when the team returns from a road trip).
I began going to Wrigley regularly during college, after lights had been installed, so I missed the great debate. But I always have enjoyed night games there (I should add that I have an aerial photograph from this night hanging in my office). They did a wonderful job in designing the lighting system. They used wide, low rows of lights rather than tall towers. And the lights sit atop the park roof, which only extends (basically) foul line to foul line, so there are no lights behind the outfield or directly behind home plate. This gives the place a unique glow--almost like a municipal park.
The park also plays very differently at night, especially in spring and fall--the cold weather means the wind blows in and it plays like a pitcher's ballpark. Posted By : Howard Wasserman
Should NCAA Allow Isiah Thomas to be a college head coach and a consultant to an NBA team?
Message posted on : 2010-08-08 - 10:49:00
Jeff Eisenberg of Rivals.com has a very interesting piece on the New York Knicks hiring of its former head coach and president of basketball operations, Isiah Thomas, to be a consultant to the team. Thomas, who was fired by the Knicks in 2008, is currently the head coach of Florida International University's men's basketball team.
Here are some excerpts from Eisenberg's piece, which details the potential conflicts of interest:
* * *
At a time when Boise State coaches can't even offer condolences to the family of a deceased recruit without facing NCAA punishment, the organization apparently sees no competitive advantage in a coach receiving a paycheck from an NBA team. The NCAA says it won't step in to prevent Thomas from working for the Knicks even though the franchise admitted in a press release on Friday that one of Thomas' duties will be "player recruitment."
Under this unique arrangement, Thomas would be in position to promise potential top recruits that he'll recommend them to the Knicks if they agree to play for him at FIU. Furthermore, he'll have the chance to advise FIU players whether or not to leave school early, a potential violation of NBA rules that forbid league personnel from having contact with players who haven't formally entered the draft.
* * *
NCAA spokeswoman Jennifer Royer e-mailed the following statement on Friday when asked whether her organization had any concerns about Thomas' arrangement.
"According to an official interpretation on June 6, 2001, NCAA member institutions are provided the discretion to establish their own policies regarding employment and income arrangements between their athletics department staff members and professional sports organizations. An NCAA coach must, however, still comply with NCAA bylaws as they relate to the recruitment of prospects and the scouting of opponents."
What the NCAA may be doing by taking that stance is opening another loophole for coaches to exploit. If Thomas' consulting role with the Knicks helps FIU secure an extra recruit or two, how long will it take Bruce Pearl to ask for a similar role with the Memphis Grizzlies or Billy Donovan to hire a Miami Heat scout as his director of basketball operations?
Amazingly enough, the NBA may end up being the organization that forces Thomas to choose between FIU and the Knicks. Since the hire could violate league rules that forbid college coaches from having jobs with NBA teams, spokesman Tim Frank told the Associated Press that the league is looking into it.
"We are reviewing the agreement, in consultation with the Knicks, for compliance with league rules," he said.
To
read the rest of Eisenberg's article, click here. To read our blog's previous coverage of Isiah Thomas, who has generated a number of sports law topics over the years, click here. Posted By : Michael McCann
The Yow Plan: Universities Sanctioned by the NCAA Should Sue Agents who broke NCAA Rules
Message posted on : 2010-08-07 - 10:49:00
The new Athletic Director of N.C. State, Debbie Yow, has a message for agents who intend to break NCAA recruiting rules while on the N.C. campus: if you do, and the NCAA punishes us with sanctions, we'll be suing you. Ken Tysiac of the News and Observer has the story, which is excerpted below.
* * *
. . . Yow said the letter will warn agents that if they violate the law while dealing with N.C. State athletes, the school will sue them. "I'm going to protect N.C. State University from any agent abuse," Yow said.
North Carolina's Uniform Athlete Agent Act requires agents to register with the state and refrain from promising anything of value to athletes while they're in school.
* * *
Violations of the law are a Class I felony in North Carolina. The law allows a civil fine of up to $25,000, but ACC commissioner John Swofford would like unscrupulous agents to face more substantial penalties.
Yow hopes the potential of a lawsuit that could extract greater damages will be an additional deterrent. The Uniform Athlete Agents Acts in North Carolina and Maryland specifically mention that an educational institution can seek damages, including lawyers' fees, from an agent (or former athlete) who injures the school.
It's difficult, however, to assign a potential dollar amount for those damages in court. It's conceivable that serious NCAA violations could, for example, force a school to give back hundreds of thousands of dollars in NCAA tournament money. If a school is banned from bowl participation, violations could cost a school more than $1 million.
But legal experts say it would be difficult to hold an agent responsible for such large amounts, because such serious penalties usually are levied only when a lack of institutional control on the part of the school accompanies the violations.
"You're going to have this question about whether the harm was caused by the action [of the agent] or by the failure of the institution effectively to control," said Paul Haagen, a Duke professor and co-director of the university's Center for Sports Law and Policy. "There would be a contributory negligence kind of thing there. That would be a difficulty [in court]."
* * *
Vermont Law School professor Michael McCann said there's a public relations advantage, though, in sending the letter, even if it doesn't have a big legal impact.
"Is it a good idea to send a letter?" said McCann, who specializes in sports law. "In some ways it's a deterrent. It also shows that the school cares."
* * *
Two Additional Thoughts:
1) As raised by ESPN's Seth Wickersham in a Facebook conversation: "It seems like she put her own coaches on notice as well, right? I mean, a lot could come out in a possible court case, if it ever went that far." I agree with Seth. If NC State were to sue an agent for damages resulting from an NCAA sanction, the NCAA States coaches who breached NCAA rules would be subject to the discovery process and possibly have to testify.
2) Another form of sanction for unscrupulous agents is for the Players' Associations that license the
agents to sanction them, including through a suspension or license forfeiture. That type of sanction, though, would not directly benefit a university sanctioned by the NCAA. Posted By : Michael McCann
Join the "What is Sport" Conversation
Message posted on : 2010-08-03 - 14:47:00
ESPN's Page 2 is seeking opinions, in the wake of the Title IX/cheerleader case, on what is not a sport and why. Join the conversation. Posted By : Howard Wasserman
USA Swimming's Attempts to Ban Technologies
Message posted on : 2010-08-03 - 07:20:00
Tara Bhupathi, a rising 3L at the University of North Carolina School of Law and an Editor on the North Carolina Journal of Law and Technology, has posted on SSRN a copy of her article in the New York State Bar Association's Art, Entertainment and Sports Law Journal on USA Swimming's attempts to ban certain technologies and the antitrust implications of those attempts. USA Swimming is the national governing body of competitive swimming in the United States. Tara was a member of the women's crew team at Georgetown University, from where she graduated in 2006.
Here's an abstract of her article:
This article argues that the Ninth Circuit acknowledged the risk of financial interests influencing decisions to ban certain equipment because of the broad economic scope of the sports industry, governing bodies' unchecked authority over said market, and the sentiment that, in light of each governing body's heavy reliance on sponsorships, complete disregard of financial motives in governance is no longer appropriate.
Further, courts should continue to implement the Ninth Circuit's policy of increasing scrutiny of governing body financial interests in rule-making for two reasons. First, shedding light on the complex and competing financial interests among industry players, including fans, athletes, teams, leagues, communities, media, and sponsors, should enhance confidence in the purity of a governing body's decisions. Second, abandoning complete deference in governing bodies could ease manufacturers' fears of investing in technology only to be subsequently banned due to collusion between market competitors and the governing bodies. This in turn would mitigate the stifling effect the latter have had on technological developments in sports equipment.
This is a very informative and interesting article. I recommend checking it out. Posted By : Michael McCann
Criticism of Biediger v. Quinnipiac University and the Rejection of Competitive Cheer as a Title IX Eligible Sport
Message posted on : 2010-08-01 - 10:38:00
Over on Saving Sports, the official blog of the College Sports Council which advocates reform of Title IX, Eric McErlain argues on behalf of competitive cheer qualifying as a Title IX sport. He also takes issue with U.S. District Judge Stefan Underhill's recent opinion in Biediger v. Quinnipiac University, where Quinnipiac was ordered to keep it's women's volleyball team in order to comply with Title IX. McErlain contends that the lack of international and professional competitions for competitive cheer should not impair competitive cheer's chances for Title IX recognition since similar opportunties for softball are on the decline as well (and Eric cites Holly Vietzke post on our blog titled Is Softball on Life Support?). Eric also notes:
Despite Judge Underhill's ruling, female student athletes have already decided on their own that competitive cheer is a sport. As of the 2008-09 academic year, competitive cheer was more popular with female student athletes in the nation's high schools than golf, field hockey, lacrosse or gymnastics. Overall, it is the ninth most popular sport for female high school students.
For an additional reading critical of Judge Underhill's analysis, see this column from Gregg Easterbrook on ESPN.com. Posted By : Michael McCann
Bedeviled by conflict among your team?
Message posted on : 2010-07-30 - 11:10:00
I think it's safe to say that organizational conflicts can distract athletic institutions from being their most effective. That was clearly the case at the University of Southern California, with Pete Carroll locking heads with compliance officers and other USC administrators, and it probably happens in less dramatic ways in other athletic departments and in sports agencies and front offices.
I learned about the course from one of the instructors, Sean Nolon, who's a friend and colleague here at Vermont Law School. After hearing about it over lunch, I thought it would be valuable for a lot of folks in athletic organizations. It should be a very interactive program and sounds like a lot of fun. I'm looking forward to attending.
Click here for more details and registration information. Posted By : Michael McCann
Can you say heckler's veto?
Message posted on : 2010-07-29 - 09:26:00
I need to find a better explanation behind this: A fan wore a LeBron James Miami Heat jersey to a Cleveland Indians game at Progressive (ne Jacobs) Field last night and, when fans in the area began chanting shouting profanities and throwing debris at him, he was escorted from the stadium. Fortunately, in the days of pervasive video, we can watch it happen (although I did not see any debris being thrown).
If there is a concern for violence, the police are supposed to halt the people who are threatening violence, not the guy who is doing nothing more than engaging in speech that pisses them off. And, yes, this guy was no doubt being deliberately provocative; free speech exists so people can be provocative. Unless there was something going on (and I cannot find more-detailed accounts explaining security's decision or action), this looks like a living example of a heckler's veto.
Update: A report from a Cleveland sports blogger about the incident, including a conversation he had with the fan (a Florida-born, Sandusky-residing factory worker named Matt Bellamy). Posted By : Howard Wasserman
Remembering Reggie Lewis and the Sports Law Issues that Followed his Death
Message posted on : 2010-07-28 - 12:15:00
Please Note: for an updated and expanded version of this post, see July 27, 2013 post: 20th Anniversary of Reggie Lewis Death & Its Sports Law Legacy** Yesterday marked the 17th anniversary of the death of Reggie Lewis, an all-star Celtics guard/forward who died from a heart attack on July 27, 1993, at the age of 27.
Growing up right outside of Boston, I was a big Reggie Lewis fan. He's still one of my all-time favorite Celtics, maybe my favorite. In addition to terrific defense and all-out hustle, he averaged 21 points per game in each of his last two seasons (91-92 and 92-93) and in the 91-92 season did something that Larry Bird never accomplished -- he led his Celtics team in scoring, steals and blocked shots per game. As CelticsBlog highlights, Lewis, who was 6'7, also famously blocked Michael Jordan four times in one game.
Lewis had the unenviable task of following Bird as the next great Celtic. It was a task that, had Lenny Bias not died from a cocaine overdose the night the Celtics made him the 2nd overall pick in the 1986 NBA Draft, Lewis would have shared with another potential superstar and the Celtics probably would have gone on to be one of the best teams in the 90s.
But that didn't happen.
On April 29, 1993, Lewis collapsed during a playoff game in Boston against the Charlotte Hornets. A "dream team" of 12 Boston cardiologists concluded that Lewis had cardiomyopathy, also known as "athletes heart" and a potentially fatal condition whereby the heart becomes too thick and beats irregularly. I've written about cardiomyopathy in the context of Eddy Curry and Alan Milstein addressed it when he argued on behalf of Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of Curry's employment.
The doctors told Lewis that his basketball career was over.
Lewis then received a second opinion from Dr. Gilbert Mudge, a cardiologist who as Time Magazinereported, diagnosed Lewis with neurocardiogenic syncope, "a fairly benign fainting condition caused by nerve irregularities during or after peak periods of exertion." At a press conference, Mudge said, "I am confident that under medical supervision Mr. Reggie Lewis will be able to return to professional basketball without limitations." Mudge's opinion was later supported by other cardiologists, though some disagreed and supported the original diagnosis instead.
Lewis did not return to play for the Celtics, whose playoff appearance ended with a 3-1 first round loss against the Hornets, but he did resume a limited amount of practicing. Less than three months later, he would collapse and die while
practicing his jump shot.
The death of Lewis raised two legal disputes.
First was a malpractice case against Mudge. The lawsuit was filed by Lewis's widow, Donna Harris Lewis, in 1996, shortly before the statute of limitations would expire. The case took three years to litigate and with a jury unable to reach a verdict, was ultimately declared a mistrial. Mudge's key line of defense was that Lewis admitted to Mudge that he used cocaine, but the admission came months after Mudge's diagnosis:
Mudge had testified that Lewis admitted shortly before his death that he had used cocaine, making an accurate diagnosis impossible. Harris-Lewis adamantly denied the charge.
Second was a threat by then Celtics owner Paul Gaston to sue the Wall Street Journal for $100 million for a front-page story it ran on Lewis in 1995. The story, which Gaston called libelous, suggested that the Celtics deliberately misled their insurance company as to the cause of Lewis' heart condition and that Lewis may have used cocaine. An autopsy of Lewis did not find any evidence linking Lewis with cocaine use.
Here is what Peter May of the Boston Globe wrote on March 18, 1998:
It has been a shade more than three years since Celtics chairman of the board Paul Gaston threatened to sue the Wall Street Journal after the newspaper suggested drug abuse and team negligence may have contributed to the death of Reggie Lewis.
At the time, legal experts said the threat sounded more like bluster than substance and predicted it would never be filed. They turned out to be correct.
The statute of limitations for libel in Massachusetts is three years - and the three-year anniversary of the Journal article passed quietly last week without so much as a piece of paper emanating from the Celtics' legal team.
"We spent quite a bit of time with a libel litigator, and as much as I hate the fact that some injustices go unpunished, I decided that this was one that was going to get away," Gaston said yesterday. "I don't see my job to go on a personal crusade against one of the foremost newspapers in the country. My job is to help rebuild the Boston Celtics and run the company which oversees them."
The Journal article appeared on March 9, 1995. It suggested, among other things, that the Celtics may have withheld medical information to collect on Lewis's insurance policy. There also was the suggestion that Lewis abused drugs.
Gaston immediately threatened to sue for $ 100 million, calling the article "defamatory and libelous." He said any proceeds from the lawsuit would go to the Reggie Lewis Foundation.
Several libel specialists contacted by the Globe expressed doubt that a suit would be filed. One said it would be an "uphill battle," and another added, "The last thing the Celtics want to do is bring this to court."
Gaston said a suit would have cost millions of dollars to pursue and that he felt the money could be more efficiently spent. "But, personally," he added, "I am equally disgusted now as I ever was by what appeared. That bitter taste will never leave my mouth."
Dick Tofel, vice president for corporate communications at Dow Jones, the Journal's
publisher, said yesterday, "We said when we published the article that we were confident the article was fair and accurate, and we feel the same way three years later."
For a really good video about Lewis, here's this tribute I found on Youtube:
Posted By : Michael McCann
Tennessee Titans sue USC and Lane Kiffin for Inducement of Breach of Contract and Tortious Interference
Message posted on : 2010-07-27 - 09:03:00
Marcia Smith of the Orange County Register has the story on the lawsuit and interviews me and Lewis & Clark Law School professor Tung Yin about it.
The gist of the lawsuit: the Titans allege that USC and its new coach, Lane Kiffin, "maliciously" lured away running backs coach Kennedy Pola to become the Trojans' offensive coordinator.
The alleged malicious part is that Pola's contract with the Titans required written permission from both the Titans team president and its general counsel for him to take another job. He didn't get the permission, and the Titans claim USC and Kiffin knew about the permission requirement. Now the Titans don't have a running backs coach with a week to go before training cap.
Here is an excerpt from Smith's story:
* * *
"It's a funny lawsuit that could have been avoided if Kiffin had made the customary courtesy call before talking to Pola," said Lewis & Clark Law School professor Tung Yin. "The harm that they (the Titans) are also alleging also probably wouldn't have been an issue if the hiring happened two or three months ago and not left the Titans without a running backs coach a couple days before camp opens."
This is the latest controversy for Kiffin, who left his University of Tennessee head coach job and a trail of secondary NCAA violations and rubbed-the-wrong-way peers after the 2009 season to become the USC coach. Titans coach Jeff Fisher, a USC alumnus who hired Pola in February, expressed dissatisfaction with Kiffin's methods that neglected the terms of Pola contract, which ran at least through Feb. 14, 2011.
"There is a tradition of coaches changing teams for promotions, even when their employment contracts contain language that technically limits their ability to change teams,..." said Vermont Law School professor Michael McCann. "The Titans have to be careful here. If the Titans develop a reputation for not letting assistant coaches take on other jobs, it may hurt their chances for hiring top assistant coaches."
* * *
To read the rest of Smith's column, click here. To read the complaint, click here.
I have 5 other points:
1) I think it would be interesting to find out how common the alleged clause requiring Pola to obtain written permission is in the contracts of Titans' assistant coaches and, if it is common, whether the team has enforced it with other departing coaches. Or, if its unique to Pola's contract, why did the team insist on having it with him?
2) Although the facts of this case are different, there was the recent case in New York involving James Madison University engaging in tortious interference by hiring away basketball coach Matt Brady from Marist College without obtaining the proper permission from Marist. Marist won the case. While that case is in a different jurisdiction, does not concern a position promotion (as Pola, now an offensive coordinator as opposed to mere running backs coach, is getting with USC), and probably involves different contractual language, perhaps the Titans nonetheless feel emboldened by
the outcome of that case.
3) I assume Pola isn't being sued himself for breach of contract because the Titans do not believe it is financially worth it, or because they still like him as a person, or because they do not want to develop a reputation for suing departing employees who leave the team for a promotion.
4) While this lawsuit is unlikely to prevail, the Titans are sending a message that other teams probably agree with: don't poach coaches right before the start of training camp.
5) If this dispute were between the Titans and another NFL team, rather than with a college team, we wouldn't see a lawsuit -- we'd see Commissioner Goodell resolve it, internally (like when Commissioner Tagliabue resolved the dispute between the Jets and Patriots when the latter hired Bill Belichick away -- the Jets got a first round pick, the Patriots got what turned out to be one of the best coaches of all time). Posted By : Michael McCann
Chronicle of Higher Education Article on Sonny Vaccaro and O'Bannon v. NCAA
Message posted on : 2010-07-26 - 18:00:00
Libby Sander has an extensive and thoughtful article on Sonny Vaccaro and O'Bannon v. NCAA in this week's Chronicle of Higher Education. The article is titled The Gospel According to Sonny: Sonny Vaccaro helped commercialize college sports. Now he wants athletes to get their due. She interviewed many persons for this story, including me and Duke Law Professor Paul Haagen. Here are some excerpts:
* * *
Three years have passed since Mr. Vaccaro ended his decades-long career as a marketing executive with Nike, Adidas, and Reebok, for which he oversaw large-scale events for elite teenage players ... Now, in a new period of his long involvement with the game, Mr. Vaccaro, who is 70, has embarked on a personal quest of sorts. If he succeeds, he could fundamentally change college sports. He could also change his legacy.
* * *
One of [Vaccaro's] most consistent complaints is that the NCAA's rules governing athletes, especially that limit scholarships to one year and require athletes to sit out a year after transferring, treat players like commodities to be traded at convenience. He recently produced a list of more than 300 Division 1 basketball players who, by late June, had already transferred to other institutions--presumably in part because of recruiting promises left unfilled--where they will lose a year of eligibility.
* * * . . . Ramogi Huma, president of the National College Players Association, a group of 14,000 current and former Division I athletes that advocates for many of the same issues as Mr. Vaccaro, says the aggresive rhetoric (of Vaccaro) strikes exactly the right tone. The NCAA "doesn't respond to people asking nicely," he says. "It responses to force: lawsuits, new laws, public criticism through the media. I think he's doing exactly what he needs to do if he's going to inspire change.
"Look at who he's talking to. He's talking to the future lawyers. He knows where the power lies."
[Note from McCann: Vaccaro has spoken at a number of law schools and other academic institutions in the last couple of years, including Yale Law School, Harvard Law School, and Boston College Law School -- check out our coverage on Sports Law Blog]
* * * . . . Mr. O'Bannon's case in particular has brought more attention to a waiver that athletes sign when accepting a scholarship, which authorizes the NCAA to use their names and pictures to promote NCAA events, giving up all future rights in the association's licensing of those "images and likenesses."
Michael McCann, a professor at Vermont Law School who focuses on sports law and has written about the O'Bannon case, says Mr. Vaccaro's willingness to push the issue of whether athletes should receive compensation, even retroactively, forces people inside and outside intercollegiate athletics to confront a concept many feel is threatening.
"People love college sports. To suddenly change it to where college players are paid would change the way we look at college sports," Mr. McCann says.
To Mr. Vaccaro, however, the quandary is almost purely one of labor and compensation—with the wrong people benefiting from a distorted market.
"He really is trying to get at the questions of what's the appropriate interaction of education, athletic competition, and kids—particularly kids who come from fairly tough backgrounds," says Mr. Haagen, the law professor at Duke. "I think Sonny had this kind of intuitive sense that a lot of the amateurism talk was not correct. ... What he really understands is the beginnings of an effort to try to get dollars to people who are producing value."
* * *
To read the rest (subscription only), click here. It's a must read if you have a subscription.
Posted By : Michael McCann
Interested in Becoming a Law Professor?
Message posted on : 2010-07-26 - 13:32:00
I was recently named Chair of the Faculty Appointments Committee at Vermont Law School by the school's Dean and President, Jeff Shields. I'm excited and honored by this opportunity. Our committee has several other blogging professors, including Professors Jason Czarnezki of Czarnezki.com: Life, Law, and the Environment, Stephanie Farrior of IntLawGrrls, Oliver Goodenough of The Huffington Post, and Cheryl Hanna of Vermont Public Radio. If you think you might have interest in applying for a faculty position at our school, here is our appointments listing:
Vermont Law School is seeking several colleagues to join our dynamic and committed faculty.Our curricular needs are varied and include first-year and advanced subjects. We will consider experienced faculty, entry-level candidates, and candidates with significant experience in government, consulting, business, NGO management, or law firm administration and leadership.
Candidates should show a commitment to excellence in teaching, scholarship, and service. Vermont Law School is committed to establishing and maintaining a diverse faculty and encourages applications from members of historically underrepresented groups.
Faculty at Vermont Law School take seriously our mission to educate lawyers for the community and the world and believe that our scholarship, teaching, and service should be meaningful and relevant to the local, national, and international communities.VLS is unique among law schools. We are on the cutting edge of environmental and international law and social policy.We embody the spirit of Vermont -- independence and diversity in people and in politics.We have the good fortune to be located in a state and region that offer numerous opportunities for engaged participation in civic life as well as a life style found at few, if any, other law schools.
Applicants should provide a cover letter and resume.Electronic applications are preferred and should be e-mailed to: facultysearch@vermontlaw.edu.Hard copy applications should be sent to: Coordinator, Faculty Appointments Committee, Vermont Law School, P.O. Box 96, South Royalton, VT 05068.
Please feel free to apply for a position or contact me with any questions. To learn more about Vermont Law School, check out our website. It's a really dynamic institution and an incredible place to work. And I hear good things about the sports law program, too. Posted By : Michael McCann
When an Athletic Director is or is not an Athletic Director: The Strange Saga of Bob Krause, Ron Prince, and Kansas State
Krause's authority is another point of contention. K-State contends Krause was not authorized to negotiate on behalf of the university, though McCann considers that argument a tough sell.
"If it's absolutely clear that he didn't have authority, and everyone knew he didn't have authority, that's one thing," McCann said. "One would think that an athletic director has sufficient authority to represent the university in contractual negotiations for a coach."
When asked to document his authority during contract negotiations, Krause pointed to a provision in the by-laws of K-State's Intercollegiate Athletic Council authorizing him to "enter into any contract or execute and deliver any instrument in the name of and on the behalf of the Corporation" as CEO.
Even if Krause didn't have actual authority, Schwartz said, Prince's attorneys can claim he had apparent authority by virtue of his position.
"There are two ways a person can have authority," Schwartz said. "They can either have actual authority — someone said, 'You have power to do this' — or you can have apparent authority. Even if (Krause) wasn't actually given the authority to do it, his role at K-State made it look like he was in a position to make these kinds of decisions."
* * *
K-State has argued that Krause acted alone, though the former athletic director testified that he discussed the separate buyout agreement with aides Jim Epps and Bob Cavello. Epps and Cavello denied that claim in depositions.
Even if Krause was a rogue actor, McCann said, it doesn't absolve K-State of responsibility.
"Their argument might be, 'This was the renegade athletic director, and not only was he the renegade athletic director, but everyone knew that,'" McCann said. "That, of course, is kind of a weird argument. Why was there a renegade athletic director?"
* * *
In terms of the litigation's status, both sides have filed motions for partial summary judgment. It will be an interesting case to follow. To read the rest of the piece, click here.
Update: Sports attorney Don Jackson lets me know of a similar case that he litigated. The case was John L. Williams v. W. Curtis Williams and Alabama State University. Here are the details:
The KSU case is similar to a case that I tried against Alabama State University in 1999. The University isolated the Athletic Director. He, in turn, claimed that he did not have the authority to enter into a contract with my client, the Interim Head Men's Basketball Coach despite the fact that he made on formal offer on Athletic Department letterhead (which prompted my client to resign his job at another HBCU and accept the Alabama State University job). We sued the A.D. under a theory of promissory fraud and received at $350,000.00 jury verdict against the A.D.. It was clear that he did have authority to act on behalf of the University but he mistakenly assumed that he could escape liability under the doctrine of sovereign immunity or discretionary function immunity. He was mistaken. Ultimately, the A.D. wound up declaring bankruptcy (as a result of the verdict) and the university terminated him.
Good stuff, and my thanks to Don. Posted By : Michael McCann
Important Sports-and-the-Law Anniversary
Message posted on : 2010-07-24 - 15:16:00
Today, July 24, 2010, is the 27th anniversary of the Pine Tar Game, perhaps the Posted By : Howard Wasserman
Hall of Fame Inductee Andre Dawson Important in Fight Against Baseball Collusion
Message posted on : 2010-07-23 - 15:49:00
This Sunday, power-hitting outfielder Andre Dawson will earn his induction into the Major League Baseball Hall of Fame. To many, Dawson is best known for his 438 career home runs, 314 stolen bases, and 1987 MVP Award.
However, from a sports law perspective, Dawson is also important for having signed a blank contract with the Chicago Cubs during the 1986-87 off-season--an act that helped to expose Major League Baseball's collusive practices during that era.
After accepting this 50% pay cut, Dawson won the 1987 National League MVP for the last-place Cubs--becoming the first play in baseball history to win that award for a last place team.
(Cross-posted on SportsJudge Blog) Posted By : Marc Edelman
"That's Some Big Blood": Selig Implements HGH Testing in the Minor League
Message posted on : 2010-07-22 - 17:51:00
So, in light of the much publicized Human Growth Hormone (HGH) positive test result for rugby player, Terry Newton, earlier this year, Bud Selig has implemented HGH testing for minor league baseball players. Recall that the Commish can unilaterally impose such testing as Minor League baseball players are not represented by a collective bargaining group like their Major League counterparts, the MLBPA. The random testing will fall under the existing Minor League Drug Prevention and Treatment Program, under which forty-nine Minor League players have been suspended in 2010. None of these suspensions were made for HGH use.
Current penalties for performance enhancing substances (PEDS) will apply to HGH as well: fifty game ban for the first positive result, one hundred game ban for the second positive result, and, finally, a third positive result could mean a permanent suspension from both the Minor and Major Leagues.
(And, yes, the photo in the top left is from an actual website advertising HGH.)
Check Rick Karcher's open letter to Bud Selig regarding HGH posted back in 2006 on this Blog. Posted By : Tim Epstein
Should USC Sue Reggie Bush? No
Message posted on : 2010-07-22 - 08:29:00
That's what both Lewis and Clark law professor Tun Yin and I told Marcia Smith for her column in the Orange County Register on USC's potential legal claims against Reggie Bush, whose Heisman Trophy was taken down and whose No. 5 number was unretired by USC this week.
Here are some excerpts from her column:
* * *
Why not put Bush, who has made more than $23million in his four NFL seasons, on the hook for the all the damages: the crumbling of the USC dynasty, the 13 vacated victories from December 2004 to the end of the 2005 season, the erased 2005 BCS championship title won over Oklahoma, the $10 million losses of potential future BCS bowl revenue, the flight of blue-chip recruits, the setback to the program or the emotion distress of fans and boosters who have become accustomed to a certain winning style of Trojan life?
Sue! There seem to be so many victims, right?
"But USC can't sue because it doesn't have much of a case it can win," said Tun Yin, a Lewis & Clark Law School professor with a specialty in sports law. "It's hard to claim that USC was harmed by something that it didn't work too hard to prevent in the first place."
* * *
"If USC tries to sue Reggie Bush, it opens itself up to discovery and to any other ugly secrets that Bush's high-priced defense team might dig up, and that could lead to even more NCAA problems," said Michael McCann, a Vermont Law School professor and sports legal analyst.
"The first problem is that USC (through now-fired football assistant Todd McNair) had significant awareness of what Reggie Bush was doing," McCann said. "The contention that he breached a scholarship contract doesn't work because the school knew what was happening, failed to investigate it fully when it was going on and should have made a claim against Bush while he was playing."
* * *
To read the rest, click here. For an analysis of the relationship between the UAAA and USC and Reggie Bush, see this excellent Sports Law Blog piece from Tim Epstein.
Update: Gabe's comments were included in an updated version of the piece:
According to Tulane Law School associate professor Gabe Feldman, who also his school's associate provost for NCAA Compliance, California's Miller-Ayala Act permits schools to sue only the registered agents -- not the athletes -- in these situations. . . . "There's really nothing USC can do except what it has done (in recent days), which is beef up its compliance staff, hire an outside consultant to assess the culture of its student-athletes and put in additional protections to help police what goes on off the field," Feldman said. Posted By : Michael McCann
Competitive Cheerleading is Not a Title IX Eligible Sport
Message posted on : 2010-07-21 - 17:16:00
At least it isn't according to U.S. District Judge Stefan Underhill, who held today in Biediger v. Quinnipiac University that Quinnipiac must keep it's women's volleyball team in order to comply with Title IX, a federal law that commands gender equity in sports. The judge, who President Clinton nominated to the U.S. District Court for the District of Connecticut in 1999 and who teaches as an adjunct professor at the University of Connecticut School of Law, rejected Quinnipiac's attempt to count cheerleaders for purposes of Title IX. Like Juge Underhill, the NCAA does not recognize competitive cheer as a Title IX eligible sport.
Here's Judge Underhill:
"Competitive cheer may, some time in the future, qualify as a sport under Title IX. Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."
In Judge Underhill's view, a key witness in the case was Jeff Webb, CEO of the cheerleading organization Varsity Spirit and something of a pioneer in competitive cheerleading. Webb testified that competitive cheerleading is not a sport in part because of its original design: it was designed to generate publicity and to provide support to other groups (e.g., sports teams; companies); it was not designed for the engagement of authentic athletic competition. From Judge Underhill:
Jeff Webb, who testified at trial, is at the center of competitive cheer's history and maturation. Webb is the president of Varsity Brands, Inc., an athletic equipment manufacturer that caters to cheerleading teams. Through its subsidiary organizations . . . Varsity Brands also holds competitions among scholastic cheerleading teams and private, “all-star” cheerleading teams. Webb's involvement with the sport of cheerleading began in the early 1970s, when he was a student cheerleader at the University of Oklahoma. Shortly after graduating, he started UCA, which would eventually turn into Varsity Brands, with the intent of creating a business that would sell cheerleading equipment and offer training camps for cheerleaders. To help promote his business, Webb began holding competitions for cheerleaders, the first of which took place in 1980. Soon, those competitions began to be televised, and cheerleading began to be recognized as a form of competition. Webb testified, however, that he never imagined that his competitions would establish a new sport; rather, he understood his competitions as a publicity vehicle for his startup business.
Another factor hurting Quinnipiac, in Judge Underhill's view, is that cheerleading competitions vary widely in the institutional affiliations and types of opponents, as well as in the presence and types of scoring systems used in competitive cheer:
. . . over
the course of its season, the competitive cheer team competed against a variety of opponents and according to scoring systems promulgated by a host of organizations. Quinnipiac competed against other collegiate competitive cheer teams, including varsity and club teams; collegiate sideline cheer teams that competed occasionally; private allstar teams with players of varying ages; and even, at one event, high school teams. Only two of its meets were scored according to the NCSTA scoring rules. The rest of the events were subject to different scoring systems . . .
Judge Underhill's decision is important because it offers a first-impression opinion by a federal judge that cheerleading is not a sport. It means that schools using cheerleading for purposes of Title IX should reconsider their policies or, if in Connecticut, change them. Keep in mind, though, other judges in other jurisdictions could reach different determinations, and given the lack of other precedent on this issue and given that cheerleading could become more formalized in the years ahead, it is certainly possibly that other judges, if faced with the same question, will conclude that competitive cheer is a Title IX eligible sport. Update: For an excellent analysis of this decision, see Professor Erin Buzuvis's piece on Title IX Blog. See also Dan Fitzgerald's extensive and insightful commentary of the case on Connecticut Sports Law.
Posted By : Michael McCann
Is Softball on Life Support?
Message posted on : 2010-07-21 - 10:30:00
USA softball suffered another blow yesterday when Jennie Finch announced her retirement, effective at the end of this summer. The sport, which has already seen its Olympic hopes erased for the next two Games, is arguably losing its most visible star. Only 29, Finch is still at the top of her game, but what does she have to play for? Without the Olympics, her only meaningful tournaments are the World Championships and the World Cup of Softball. And the World Cup of Softball, which begins tomorrow night, has seen its level of competition dramatically decrease. Once a gathering of the best softball teams in the world, this year's tournament features just three countries: USA, Japan, and Canada. How is that 38 years after the passage of Title IX, only three countries a) can field competitive teams, or b) choose to compete in what has now become one of the highest levels of competition for the sport?
Even the National Pro Fastpitch league, the only professional outlet for female softball players, has seen its number of teams drop from eight at its height to just four this year. More girls are playing sports now than 20 or even 10 years ago. Since the enactment of Title IX, female participation in college sports has increased 456%. The interest in playing the sport is clearly there, so why are the powers-that-be pulling the plug on opportunities? In the case of the Olympics, speculation is that the US was too dominant, winning the first three gold medals (1996, 2000, 2004) since the sport's induction into the Games. But that wasn't the case in 2008, when the US lost to Japan in the gold medal game. And if being too dominant is a concern, then why is table tennis still included, when the Chinese have won 20 of 24 gold medals (and a Chinese woman has won every single gold) since the sport's entry into the Games in 1988? Another reason suggested for the sport's cancellation is that it is "too American" for the Olympic Committee. But there are 128 member countries in the International Softball Federation, almost twice as many members as the International Ice Hockey Federation, which has 69.
With the National Pro Fastpitch league, the issue seems to be money: teams folded because they couldn't sustain operations with low attendance. The New England Riptide, for example, folded before the 2009 season for economic reasons, with the hope and intention of returning in 2010. It didn't. And without the Olympics to generate the interest in the sport for spectators, the outlook does not look promising for growing the league.
So what does all of this mean for a sport that has given us such great athletes as Lisa Fernandez, Dot Richardson, Cat Osterman, Jessica Mendoza, and Jennie Finch? It means that after college, these women have few opportunities to play at an elite level, when they are at their athletic peak. It means that if given the choice between playing soccer and softball, young girls might choose the former because the stage is bigger. It means that the great college players right now will likely never get a chance to play in an Olympic Games. And it means that fans of the sport will be relegated to watching just the best players from three countries every July—for now.
Posted By : Holly Vietzke
Introducing Guest Blogger Holly Vietzke
Message posted on : 2010-07-21 - 10:27:00
We are pleased to announce that Professor Holly Vietzke of the Massachusetts School of Law will be guest blogging on Sports Law Blog. In addition to sports law, Professor Vietzke teaches courses in animal law and sophisticated speech. She is also Director of Writing and Legal Reasoning and has a law firm that specializes in estate planning, real estate law, and elder law. Posted By : Michael McCann
Message posted on : 2010-07-21 - 00:02:00
The
Posted By : Michael McCann
"Show me the Sanctions!": More Scandals, the Uniform Athlete Agent Act, and an Institution's Cause of Action Against Agents and Former Players
Just last week, Illinois became the 39th state to pass legislation based on the Uniform Athletes Agent Act, (the “Act” or the “UAAA”) a model law promulgated by the National Conference of Commissioners on Uniform State Law.The legislation is aimed at regulating the relationship between sports agents and student-athletes with professional prospects and educational institutions by providing for uniform registration, certification and background check of sports agents, as well as establishing criminal and civil penalties for agents who offer benefits to student-athletes.The Act also imposes certain disclosure requirements and specified contract terms on agreements between agents and student-athletes with remaining eligibility in order to protect institutions and their student-athletes.All agency contracts must include a conspicuous warning, in specified language, that a student-athlete who signs an agency agreement loses any remaining eligibility to participate in intercollegiate sport.
The UAAA is certainly a well-intentioned piece of legislation, and it could hardly be argued that the sports world would be better off without it.One of the more interesting aspects of the UAAA is a provision that gives an educational institution a right of action against an athlete agent or student athlete for damages sustained as a result of conduct that violates the act.Under this provision, a school would be able to sue for losses sustained as a result of penalties levied by the NCAA and/or athletic conference of which the school is a member, or penalties imposed by the school itself.
In light of the heavy sanctions imposed by the NCAA on USC as a result of the Reggie Bush scandal, as well as the self-imposed sanctions stemming from OJ Mayo's receipt of benefits from a sports agency, one has to wonder whether USC will pursue actions against the agents involved in these incidents.California has not yet adopted the UAAA (the adoption of the Act is pending in the California legislature), but has in place its own version of an athlete agent law, the Miller Ayala Act, which creates a presumption of damage if an athlete is suspended or disqualified, or if an educational institution is suspended or disqualified by the NCAA due to acts of an athlete. (The UAAA does not provide for the same presumption).The damage done by NCAA sanctions as a result of the Reggie Bush scandal are of a magnitude that it's a pretty safe bet that USC has at least kicked the tires on a lawsuit against Michael Michaels and Lloyd Lake, the two agents who are alleged to have funneled impermissible benefits to Bush while he was enrolled at USC.As for OJ Mayo, that scandal possibly implicates the highly successful Bill Duffy Agency.
It is worth noting that the UAAA in most states permit a school to sue the agent AND the student.It is also worth noting that the Miller Ayala Act in California, and Florida's version of the Act, do not permit a school to sue the former student-athlete whose conduct in concert with an athlete agent resulted in a violation under those states' respective laws.University of Southern California v. Reggie Bush, and the University of Florida v. Maurkice Pouncey are two cases that are unlikely to show up on the dockets.
But even if the UAAA is designed to protect educational institutions, why aren't the schools suing the agents?Perhaps the answer lies in the fact that student athletes such as Bush and Mayo create such a windfall of profits for their schools that the educational institutions cannot show any discernable damages. Another possible explanation may be that questionable athlete-agent interaction is simply not as prevalent an issue as it is portrayed in the media. Certainly the cases of Bush and Mayo have created a media firestorm, but most NCAA student athletes are not in line to make millions in professional leagues and are unlikely to even face such
temptation. Schools are probably satisfied to simply move on and repair their images rather than engage in drawn out litigation.This perhaps explains USC's heretofore reticence to sue, as the NCAA's sanctions were not just for Bush's contacts, but also for what the NCAA described as a “lack of institutional control.”
All of the examples mentioned herein manifest the intrinsic impossibility of fully policing the sports agent industry, and certainly invite skepticism with regard to the efficacy of the UAAA. There is simply too much money involved, and greed and immorality will at least occasionally trump honesty and integrity. To be sure, the UAAA is not a panacea for the problems that face the industry, and it certainly is not going to stop all corrupt behavior, but the Act at least represents a step in the right direction.What remains to be seen is if the threat of a suit by a NCAA school is a credible one that would give agents and student-athletes pause before making any agreements about future representation.
For more information about this topic, please check out Darren Heitner's entries about the Florida and UNC investigations at Sports Agent Blog.
Hat tip to my law clerks Luke LeSaffre and Brian Konkel for their work on this piece.
Posted By : Tim Epstein
Bryce Brentz and Teams Requesting that Players Use Medical Devices for Abnormally Good Health
Message posted on : 2010-07-20 - 09:00:00
In last month's Major League Baseball draft, the Boston Red Sox drafted Bryce Brentz, a 21-year-old outfielder from Middle Tennessee State University, as a supplementary first round pick. The Red Sox and Brentz quickly worked out a contract and Brentz is now playing for the Lowell Spinners in Class A (short season). He's off to a very slow start -- a .147 batting average after his first 109 at-bats -- but it's early and he's expected to hit well.
That expectation is based in part on Brentz's college career, during which he was considered one of the best amateur hitters around. Despite his college success, the Red Sox want Brentz to make some changes as he transitions from amateur to professional. That's to be expected, of course, especially with switching from aluminum bats to wooden bats and from playing several times a week to playing everyday for weeks on end.
One uncommon change the Red Sox expect Brentz to make concerns his eyes. After he was drafted, the Red Sox told Brentz -- whose vision is either 20/20 or very close to it -- that he needed to wear contact lenses so that his vision would improve to 20/15 or 20/12. Brentz accepted the Sox request and is now wearing contacts for the first time in his life. He tells Brian MacPherson of the Providence Journal that wearing contacts has impacted his hitting, both for good and bad, depending on the kind of pitch thrown:
I can see the edge of the contact on my eyes when I look around, like in the peripheral . . . Looking at something, it stands out more. It's more clear. It's more crisp. But on a fastball, it looks like it's closer than it really is. I've just got to get used to it.
Asking a player to wear contact lenses is not a very invasive request. Contacts, as those of us who wear them know, are relatively easy to wear once you get the hang of them, though they sometimes cause the eye to become dry and can occasionally be annoying for other reasons. But if a player doesn't like to wear contacts, he can simply take them off after the game; wearing contacts does not change a person's body, they only cause the person's eye to see better for as long as they worn.
But what about the fact that Brentz has normal or almost normal 20/20 vision? And say he had declined the Red Sox's request because he felt that his 20/20 vision -- which was good enough for him to become one of the best hitters in college baseball -- was just fine as it was?
After-all, Brentz wearing contacts is not about correcting an injury; it's about improving his vision to a level better than normal.
Should players be expected, upon team request, to use medical devices in order to alter their normal health in a non-corrective way?
Or take it a step further. What happens if teams begin to ask players with 20/20 vision to have Lasik surgery so their eyes are surgically altered to see 20/15 or 20/12 vision? The Braves reportedly encouraged Greg Maddux to have Lasik surgery, though his vision was not 20/20 at the time. Would a request that a 20/20 player have surgery to enhance his body -- as opposed to correct an injury -- raise any ethical worries?
Would surgery in that instance be more like a (legal) steroid except one made at the behest of the team?
To be sure, players, and not teams, decide whether players are going to have surgery. However, one could question how much "choice" a player believes he has if he wants to keep his job. But ultimately it's the player's call.
Teams, in fact, sometimes don't want players to have surgery, particularly if the player would be shelved for a long period of time. As I discussed in my SI column on Carlos Beltran and the Mets disagreement about the necessity and choice of doctor for a knee surgery, MLB's collective bargaining agreement is purposefully vague as to how to resolve disagreements about player health care:
Interestingly, and understandably, the collective bargaining agreement does not expressly resolve how teams and players should reconcile differences in opinions over the appropriate course of a player's treatment and who should perform a particular surgery. Instead, the agreement essentially encourages players and teams to work out their differences in good faith and with an appreciation for reasonableness, taking into consideration the desires of both parties.
Vagueness may be the best course of action for issues of this sort, but as new medical devices and surgeries emerge, perhaps leagues and players' associations will need more specificity. It could be a matter that receives more attention in collective bargaining in the years ahead.
NY Supreme Court Upholds Marist's "No-Contact-With-Recruits" Contract Clause
Message posted on : 2010-07-19 - 18:47:00
As you may recall, Marist University brought a lawsuit against its former men's basketball head coach, Matt Brady, and James Madison University (JMU). The suit centered on an interesting provision in Brady's contract with Marist. According to the contract, Brady was required to cease all contact with players being recruited by Marist if Brady were to leave during the terms of his contract. Brady, in the first year of a newly renegotiated 4-year deal, left to coach JMU. Interestingly, despite a provision precluding Brady from even discussing a job with another program during the term of his contract, Marist allowed Brady to leave for JMU, but Marist insisted that JMU and Brady honor the no-contact-with-recruits portion of the contract. In fact, Marist's Athletic Director wrote a letter to JMU identifying 19 basketball players who had been recruited by Brady while at Marist (“The List”), and were thus off limits to Brady and JMU.
In its complaint, Marist alleged that Brady, with JMU's full knowledge and encouragement, contacted Marist recruits in order to entice them to join JMU's basketball team. The complaint also alleged that JMU offered scholarships to four of the Marist basketball recruits who were on The List. One of those recruits had already committed to play for Marist.
JMU moved to dismiss the case on a number of grounds, including lack of subject matter jurisdiction and failure to state a claim. Earlier today, Judge Wood of the New York Supreme Court issued a default judgment against JMU, holding that, among other things, JMU tortuously interfered with the Marist-Brady contract by encouraging Brady to contact his Marist recruits (the ruling does not cover the claims against Brady). Judge Wood spent little time discussing the factual details of the dispute, but in ruling that a NY court had jurisdiction over the case, noted that “an out of state university [had] allegedly raid[ed] a New York college's prospective recruits, developed and cultivated by a head coach subject to a New York employment contract and funded by that college's New York resources.” Judge Wood has ordered JMU and Marist to appear in court on July 26th to determine the damages caused by JMU's interference.
A few quick thoughts on the decision:
1) To my knowledge, this is the first time a school has sued a coach, or another school, or anyone, for violating a “no recruitment” clause in a coaching contract.
2) Not surprisingly, to my knowledge, this is the first time a school has successfully sued another school for violating a “no recruitment” clause in a coaching contract.
3) Judge Wood is holding a hearing on July 26th to determine the damages caused by JMU's tortuous interference. Typically, in cases where a coach jumps to another school, damages are either too speculative to be awarded (and a negative injunction is awarded) or are covered by a liquidated damages provision or a buyout clause. Here, of course, Marist did not sue because Brady left. Instead, Marist sued because Brady (with JMU's encouragement) contacted his former Marist recruits after he left. This may be the first time a court determines the damages a school has suffered by having another school contact its recruits. How a court can possibly determine those damages with any degree of certainty is anyone's guess (though it is worth noting that Marist's basketball team finished with a 1-29 record this year)…
4) Assuming this decision holds up on appeal (or even if it does not), it will be interesting to see if these “no recruitment” clauses become more common in college coaching contracts, or if other courts find them to be unenforceable. While it may dissuade a coach from jumping ship to a new school, it's yet another instance where a student-athlete's rights are limited without his/her consent.
More
on this as the story continues to develop… Posted By : Gabe Feldman
Competition and Sports
Message posted on : 2010-07-17 - 08:00:00
Mike's post on the Quinnipiac University case raises the question of the link between competition and the definition of sports. I would argue that competition is a necessary but not sufficient condition to any definition. Failure to treat it as such creates problems in two directions. In Noffke v. Bakke (the Wisconsin Supreme Court decision holding that cheer is not a contact sport for state law purposes), the court said that competition is irrelevant to the definition of sport and that the Posted By : Howard Wasserman
Competition and Sport
Message posted on : 2010-07-17 - 07:45:00
Mike's post on the Quinnipiac University case and whether competitive cheer is a sport raises an interesting question about the connection between sport and competition. I would argue that competition is a necessary, but not sufficient condition for something to be a sport. Making it a suffi Posted By : Howard Wasserman
Iroqouis National lacrosse team at center of diplomatic dispute: Updated and Moved to Top
Message posted on : 2010-07-16 - 22:10:00
A lacrosse team representing the Iroquois Nations is trying to get to England to participate in the Lacrosse World Championships. Unfortunately, they are trying to travel under tribal (rather than United States) passports, which goes against State Department and U.K. directives. The U.K. is refusing to let the team into the country, concerned that the U.S. will not allow them back in without U.S. passports (despite a one-time waiver from Secretary of State Clinton). So the players remain stuck in a hotel near Kennedy Airport until the matter can be resolved. The team forfeited its opening-round game today (against, irony of ironies, England) and have been demoted to the lesser division for the tournament. The greater irony, of course, is that the Iroquois invented the damn game.
Read the full piece at Deadspin. Also, check out this lengthy article on the Iroquois team in the new Sports Illustrated.
Update, July 16, 10 p.m.: The team has given up on trying to get to England. Because the matter was not resolved by Friday afternoon, there was no way to get there in time for their Saturday game against Japan. Posted By : Howard Wasserman
Biediger v. Quinnipiac University: Can competitive women's cheerleading be considered a Title IX-eligible sport?
Message posted on : 2010-07-16 - 10:23:00
Whether cheerleading is a sport and whether it should count in Title IX analysis are subjects that we've periodically considered on the blog. In 2005, Greg Skidmore wrote about cheerleading and Title IX when the University of Maryland added cheerleading as a varsity sport. Tim Epstein addressed the tort implications of cheerleading in his 2006 post, From Poms to Pain, and more recently Tim, Marc Edelman, and Howard Wasserman have all considered Wisconsin courts' handling of cheerleading as a contact sport and the impact on Title IX, particularly in the Noffke v. Bakke decision.
As discussed a couple of weeks ago by Pat Eaton-Robb of the Associated Press, the future of the seven universities that currently offer competitive cheerleading may hinge on U.S. District Judge Stefan Underhill's view of competitive cheerleading in a class action case expected to be decided later this month. The case, Biediger v. Quinnipiac University, is before the U.S. District Court for Connecticut.
Here's the gist of the case: Although the NCAA does not recognize competitive cheerleading as a sport, Quinnipiac University argues that cheerleading is a sport and ought to be Title IX eligible. Indeed, Quinnipiac counted competitive varsity cheer squad members among the athletic opportunity allotments provided to women as mandated by Title IX. By counting their cheerleading team, the school reasoned that it could terminate the women's varsity volleyball program and still report equitable allotments of athletic opportunities to men and women.
When it learned of the school's plan to terminate the women's volleyball program, the volleyball team responded--in court. It filed a lawsuit claiming that if the school proceeds as planned, the school would be in violation of Title IX and the volleyball team members would suffer irreparable harm. The volleyball team also insists the school's roster management and EADA reporting practices are misleading. Namely, according to the volleyball team, the school sets artificial roster floors in order to generate inflated figures, which in turn gives a misleading appearance of Title IX compliance.
About a year ago, Judge Underhill issued a temporary injunction preventing Quinnipiac from cutting the women's volleyball program or any other female opportunities. The judge reserved ruling on whether competitive women's cheerleading is a Title IX-eligible sport. That ruling should arrive in days.
Closing arguments occurred three weeks ago, and in its closing statement, Quinnipiac argued that competitive cheerleading meets every requirement for consideration as an emerging sport: “Don't close the door to the thousands of women who intend to compete in this new sport and it is
a sport. If the court doesn't recognize it will be a death knell (to competitive cheerleading).” Quinnipiac intimates that if it could not count the competitive women's cheer team under Title IX, the sport may be economically unsustainable and abandoned.
Many thanks to research assistant Britney Turner for her assistance on this post. Posted By : Michael McCann
Triathletes Oppose Rule Changes
Message posted on : 2010-07-15 - 23:08:00
A new rule that mandates competitive visually-impaired triathletes wear blackout glasses on the run portion of the USA Triathlon (USAT)-sanctioned events takes effect this Sunday, July 18, 2010 in New York City for the 2010 USA Paratriathlon National Championship. The event is the only USA Paratriathlon World Championship Qualifier. The “blackout glasses” rule has been highly criticized among paratriathletes and some opponents say the rule violates the Americans with Disabilities Act.
Initially, the International Triathlon Union (ITU) implemented the rule as an effort to enhance the prospects for the paratriathlon to become a Paralympics Triathlon by 2016. As a member federation of ITU, USAT also cites inclusion in the Paralympic Games as a primary goal. To that end, USAT has adopted the International Paratriathlon Committee's classification code in an effort to provide consistent rules in international qualifier and world championship events.
In the past, athletes competed in separate categories according to the severity of their blindness. Recently, the ITU chose to lump all visually impaired athletes into a single category called TRI-6, in an effort to increase the apparent number of visually-impaired competitors. The ITU developed the “blackout glasses” rule as a method of leveling the playing field, due to the wide range and varying degrees of visual propensities of athletes all lumped into a single category.
After an outcry from the visually impaired triathlete community over the “blackout glasses” rule, the USAT announced the development of a new noncompetitive Physically Challenged Division that will not require participants to follow the new rule.
Opponents of the “blackout glasses” rule say it violates the Americans with Disabilities Act. According to competitive paratriathlete Aaron Schiedies, who is a four-time World Champion and a five-time National Champion in the Paratriathlon, the “blackout glasses” rule is certainly not an adaptive nor is it an accommodating measure on behalf of visually impaired or TRI-6 participants. Schiedies says the rule deters participation of visually impaired athletes.
Schiedies, who is partly blind, explained that when he first tried to train with the blackout glasses it made him feel intoxicated and unbalanced. He eventually ran off the road, into a fence and fell in a ditch.
Other opponents of the “blackout glasses” rule point out that it may be grounded in a false assumption- that all visually impaired triathletes are able to compete in the complete darkness of the blackout glasses.
Proponents of the new rule say it promotes the principle of fairness and equality, to enhance the opportunity to win based solely upon one's superior skill. The ITU asserts that the new rule is in line with the status quo and the International Paratriathlon Committee's mission to ensure that "winning is determined by skill, fitness, power, endurance, and tactical ability and mental focus" akin to the goal of sport for athletes who do not have disabilities.
Here's the gist of the proponent's rationale for the rule: It seems unfair for individuals who are partly blind or able to see shapes to compete against individuals who are completely blind or immersed in total darkness. Fairness and equality may be attained by minimizing those elements or factors that attribute to individual difference and diversity. And, to require everyone to wear blackout glasses for purposes of competition minimizes an element of individual difference. Thus, the rule increases the amount of fairness and equality so that individuals may win based upon skill.
Yet, opponents of the rule explain that their adaptations to their disabilities are precisely what have enabled them to compete in the first place. Opponents point out that for some TRI-6 participants the new rule will eliminate their ability to rely upon adaptations they have worked diligently to develop as a component of their overall athletic ability.
Even if the ITU's assumption that fairness and equality defined as sameness is valid and count as sufficient factors in considerations of a sport's governing rules and regulations, the ITU fails to consider the implications of the new rule based upon its own standard: Whether the new rule affords an unfair advantage to those individuals with complete blindness that have adapted to their condition and in turn creates an unfair disadvantage to individuals that have adapted to the ability to see shapes.
Opponents may object to the ITU's narrow conception of fairness and equality as sameness, particularly in an atmosphere characterized by participants competing together who share in common a characteristic of some physical trait that deviates from a concept of a physical norm. In this context, rather than to oppose equality to difference, the ITU may more aptly describe equality and fairness in terms of a deliberate indifference to specified differences.
Opponents say the rule humiliates visually-impaired athletes and insults their dignity. They point out individuals with complete blindness must wear the blackout glasses despite a functional necessity to do so. The non-profit organization, C Different has organized a protest by participation of vision-impaired athletes to participate in the NYC Triathlon. The group plans to run the last leg of the event sans blacked-out glasses, though the rule will be in full effect.
www.nytimes.com/2010/07/15/sports/15triathlon.html?_r=1&ref=todayspaperDisabled Triathletes Unhappy About Rule Changes
Variousnewsoutlets are reporting that the World Anti-Doping Agency ("WADA") is considering adding caffeine (back on) to the prohibited list. Reading the reports made me think of a tennis doping case I worked on back in 2003. The appeal involved Martin Rodriguez, a journeyman tennis player from Argentina.
After WADA dropped caffeine from the prohibited list on January 1, 2004, I thought I would be the last (only?) attorney ever to represent a player in such a caffeine-related appeal. A strict liability standard applies to most substances on the prohibited list. In other words, the presence of the prohibited substance, whatever the amount, can trigger a positive test. Caffeine, in contrast, is allowed up to a certain point. The cut-off for caffeine in 2003 was 12 micrograms per milliliter. Any amount of caffeine above such cut-off would trigger a positive test. Lesser amount were permitted.
Caffeine is a unique drug. Its use is pervasive, as it is found in coffee, soda pop, chocolate, and a number of other common food products. At low to moderate levels of consumption, the general consensus appears to be that caffeine can be helpful athletically and cognitively. At excessive levels, it is unlikely that caffeine would be a "performance enhancer" under WADA's guidelines. This is especially true in sports requiring a high degree of motor control. Perhaps this is the reason WADA dropped caffeine from the prohibited list a few months after the appeal in the Rodriguez case. If caffeine is re-introduced to the prohibited list, I will be curious to see what the threshold (if any) is for a positive test. Similarly, it will be interesting to see whether coffee manufacturers augment their sponsorship of sporting events. The loss of sponsorship revenue for certain sporting events may be one unintended result of caffeine regulation by the doping authorities. Stay tuned... Posted By : Ryan M. Rodenberg
New Sports Law Scholarship
Message posted on : 2010-07-15 - 10:06:00
Recently published scholarship includes:
Zachary Blumenthal, Note, The punishment of all athletes: the need for a new world anti-doping code in sports, 9 JOURNAL OF INTERNATIONAL BUSINESS & LAW 201 (2010)
Walter T. Champion, Jr., The Second Circuit takes a second look at the non-statutory labor exemption in professional sports: a review of Wood v. National Basketball Association, Caldwell v. American Basketball Association, National Basketball Association v. Williams, and Clarett v. National Football League, 27 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL 83 (2009)
Edmund Donnelly, Comment, What happens when student-athletes are the ones who blow the whistle?: how Lowrey v. Euverard exposes a deficiency in the First Amendment rights of student athletes, 43 NEW ENGLAND LAW REVIEW 943 (2009)
Andrew L.T. Green, Note, Spreading the blame: examining the relationship between DSHEA and the baseball steroid scandal, 90 BOSTON UNIVERSITY LAW REVIEW 399 (2010)
W. Chapman Hopkins, Procedural due process implications of Kentucky's thoroughbred medication regulations, 2 KENTUCKY JOURNAL OF EQUINE, AGRICULTURE, & NATURAL RESOURCES LAW 27 (2009-2010)
Daniel J. Kain, Note, “It's just a concussion:” the National Football League's denial of a casual link between multiple concussions and later-life cognitive decline, 40 RUTGERS LAW JOURNAL 697 (2009)
Matthew T. Lockhart, Comment, Oliver v. NCAA: throwing a contractual curveball at the NCCA's “veil of amateurism,” 35 UNIVERSITY OF DAYTON LAW REVIEW 175 (2010)
Peter R. Morrison, Shutting down the offense: why the Supreme Court should designate the NFL a single entity for antitrust purposes, 3 JOURNAL OF BUSINESS ENTREPRENEURSHIP & LAW 97 (2009)
John J. McDermott, Note, Direct v. indirect discrimination in European football: the legal differences between UEFA's homegrown player rule and FIFA's “6+5” proposal, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 267 (2010)
Danielle Moore, Note, The times they are a changing: secondary ticket market moves from taboo to mainstream, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 295 (2010)
Miguel A. Ramos, Comment, Game, set, match-fixing: will international anti-doping initiatives pave the way for similar reform for corrupt betting in tennis?, 32 HOUSTON JOURNAL OF INTERNATIONAL LAW 201 (2009)
Holly Rudolph, Horse sense and high competition: procedural concerns in equestrian doping arbitration, 2 KENTUCKY JOURNAL OF EQUINE, AGRICULTURE, & NATURAL RESOURCES LAW 47 (2009-2010)
Alexander M. Sanders, Jr. and Katie Fowler Monoc, William S. Stevens (1948-2008) and “The Common Law Origins of the Infield Fly Rule,” 4 CHARLESTON LAW REVIEW 423 (2010)
Wayne Schiess, Advice for drafting a new NFL collective bargaining agreement, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 205 (2010)
Steve Silverberg, Note, Safe at home? Assessing U.S. efforts to protect youths from the effects of performance-enhancing drugs in sports, 35 BROOKLYN JOURNAL OF INTERNATIONAL LAW 271 (2010)
Jonathan Singer, Comment, Keep it clean: how public universities may constitutionally enforce policies limiting student speech at college basketball games, 39 UNIVERSITY OF BALTIMORE LAW REVIEW 299 (2010)
Jordan T. Smith, Note, Fighting for regulation: mixed martial arts legislation in the United States, 58 DRAKE LAW REVIEW 617 (2010)
Andrea Marco Steingruber, Sports arbitration: how the structure and other features of competitive sports affect consent as it relates to waiving judicial control, 20 AMERICAN REVIEW OF INTERNATIONAL ARBITRATION 59 (2009)
Sara Young, Comment, PIAC (pee in a cup)--the new standardized test for student-athletes, 2010 BYU EDUCATION & LAW JOURNAL 163
Posted By : Geoffrey Rapp
Pete Carroll and NCAA Sanctions of USC
Message posted on : 2010-07-14 - 12:06:00
Last month, the NCAA imposed major sanctions on the University of Southern California football team because of a lack of institutional control. USC football will lose 30 scholarships, endure a 2-year postseason ban, and have some of its past wins vacated from the record books. USC is appealing the sanctions.
A key alleged wrongdoer for USC was its head football coach, Pete Carroll, who coached the Trojans from 2000 to 2009, during which time it was one of the best teams in college football. It was also during this time -- the NCAA has concluded -- that USC coaches and boosters gave out gifts to prospective recruits and their families and generally turned a blind eye to wrongdoing on campus. In January of this year, Carroll left USC to join the Seattle Seahawks as their head coach (Carroll reportedly received a 5-year, $33 million contract).
Among other infractions allegedly committed by Coach Carroll was his hiring of an extra coach -- former NFL special teams coach Pete Rodriguez -- above the number of coaches allowed by the NCAA. Carroll apparently did not list Rodriguez as a coach; instead he was listed as a consultant.
Paul Pringle of the Los Angeles Times has a story today on USC and Carroll, and interviews several persons for the story, including me. Here are some excerpts:
. . . But Carroll has been shy about mentioning that the NCAA found his quiet hiring of an extra coach, a big name from the NFL, was a major violation. The association also said that Carroll did not clear the hire with USC's compliance office, a finding that contradicts what he told The Times last year.
Now, as USC presses an appeal of the heavy sanctions the association imposed, Carroll's culpability could diminish the school's prospects of persuading the NCAA to ease the punishment, experts say.
"That's going to hurt USC on its appeal," said Michael Buckner, a Florida attorney and Trojan alumnus who specializes in sports law. "There are major rule violations found against not only his student athletes but against his coaching staff and a decision he made."
The decision, as The Times reported last July, was to hire Pete Rodriguez, a former NFL special teams guru, in violation of the association's cap on coaches. It gave USC "more than a limited competitive advantage" over other schools, the NCAA found. Carroll did not list Rodriguez on the coaches roster while he served as a "consultant" for the Trojan kicking squads during the entire 2008 regular season.
In its June report on the violations, the NCAA says USC's compliance office learned of Carroll's arrangement with Rodriguez only when an unidentified school complained about it in February 2009.
Carroll said last year that he could not give a "chronology" of his dealings with the compliance office, but "whenever we do anything, we go through all of the channels to figure out whether we can do it … whether it's OK, and we did that...." "We've tried to do this exactly the right way — compliance, all of that stuff, to the letter."
* * *
Vermont Law School professor Michael McCann, a sports law expert, said the Rodriguez affair goes to the heart of whether USC's administrators and its compliance staff had the will to rein in a marquee
coach like Carroll, who won two national championships for the Trojans.
"The NCAA will say that Pete Carroll and others connected to him were making wrong choices, and the institution should have been uncovering it," McCann said. "It was probably hard for a compliance officer to confront Pete Carroll … but that's the way it is. Schools have to do more to not let the coach be so powerful."
To read the rest of the story, click here. To read commentary from Bruins Nation blog, click here. Also, I posted this story on my Facebook page and have received some excellent comments that I'll excerpt here:
Marc Isenberg (Money Players): ". . . I would like agree with your sentiment that, 'Schools have to do more to not let the coach be so powerful.' However, schools who allow their football coaches to become all-powerful make a lot of money. On the other hand, reigning in these powerful coaches is a sure way to lose more games. The AD doesn't wake up thinking, How can I please the NCAA today? Especially when he's having lunch today with the boosters." [Incidentally, Marc has just penned an outstanding piece on the late John Wooden in the Basketball Times]
Long Westerlund (attorney and management consultant): ". . . And I concur. You can't exculpate yourself by claiming ignorance when there's an affirmative duty. That's the whole point of oversight and accountability. 'Hey... we're not at fault for losing billions of dollars because a few of our bankers came up with these bad debt products and sold them as great investments.'"
B. David Ridpath (Ohio University professor and expert on college sports): " . . . Marc is correct in that schools will not do anything to prevent their coaches from becoming all powerful. Even if someone had the will to confront Carroll all Carroll would do is tell the president and AD to have that person(s) back off because it inhibits his ability to win--which the vicious cycle continues because presidents and AD's are even weaker than most compliance people. The risk vs reward is at play here and the reward is much greater than any risk . . . " Posted By : Michael McCann
The passing of New York Yankees owner George Steinbrenner at the age of 80 today brings to mind how his life impacted sports law.
Posted By : Michael McCann
Five Thoughts on Dan Gilbert's Letter
Message posted on : 2010-07-09 - 09:32:00
After LeBron James announced that he will be signing with the Miami Heat, Cleveland Cavaliers owner Dan Gilbert responded by posting a furious letter on nba.com/cavaliers, an NBA website for the Cavaliers. Here are some excerpts from the letter, in its comic sans font:
Dear Cleveland, All Of Northeast Ohio and Cleveland Cavaliers Supporters Wherever You May Be Tonight;
As you now know, our former hero, who grew up in the very region that he deserted this evening, is no longer a Cleveland Cavalier. . . . You simply don't deserve this kind of cowardly betrayal. . . . In the meantime, I want to make one statement to you tonight:
"I PERSONALLY GUARANTEE THAT THE CLEVELAND CAVALIERS WILL WIN AN NBA CHAMPIONSHIP BEFORE THE SELF-TITLED FORMER ‘KING' WINS ONE"
. . . I can tell you that this shameful display of selfishness and betrayal by one of our very own has shifted our "motivation" to previously unknown and previously never experienced levels. Some people think they should go to heaven but NOT have to die to get there. Sorry, but that's simply not how it works.
This shocking act of disloyalty from our home grown "chosen one" sends the exact opposite lesson of what we would want our children to learn. And "who" we would want them to grow-up to become. . . ,
Dan Gilbert Majority Owner Cleveland Cavaliers
There's a lot to digest here. First, the letter reads more like a high school break-up letter, or a tongue-in-cheek diatribe found in pro wrestling, or maybe even a piece we'd find on The Onion, than one seriously penned by a 48-year-old attorney and successful businessperson whose actions and words reflect not only himself, but also his franchise and the NBA. Using inflammatory words like "cowardly" and "betrayal" to describe a contractual decision by a person who's unquestionably abiding by the law and following NBA rules is both amusing and odd. I recognize the letter is partly an attempt by Gilbert to direct blame away from himself for losing Lebron, and on some level I applaud Gilbert for not hiding his true feelings, but he clearly could have accomplished those goals more graciously and effectively. If anything, the letter is counterproductive, since it makes Lebron seem like the rational, deliberative one.
Second, Gilbert's emphasis on loyalty is misplaced and hypocritical. LeBron James was a free agent whose contract had expired with a team -- a team, by the way, that he had clearly invested his heart and soul in for the last 7 years. The days of the reserve clause, which enabled teams to re-sign players to one-year contracts for as long as teams wanted, have long since ended; Lebron had every right to sign with any team. If Gilbert doesn't like athletes taking advantage of free agency, he shouldn't have bought an NBA franchise.
Also, if Gilbert truly cared so much about loyalty, why did he just try to persuade Tom Izzo to leave Michigan State, which Izzo's coached for the last 14 years, to coach the Cavs? In fact, why would the Cavaliers pursue any coach or player whose associated with another organization when the Cavs would be causing a breach of loyalty, an act of "betrayal"? Or is loyalty only a one-way street with the Cavs?
Third, if Gilbert is going to badmouth Lebron -- he's apparently told the Associated Press that Lebron quit on the Cavs in the 2010 playoffs series against the Celtics -- don't be shocked to see him
hit with a slander lawsuit. Sure, slander is hard to show, especially with public figures and especially if the comments are more opinion than fact, but if Gilbert starts making specific claims that are exaggerations or fabrications, Lebron, like anyone in that situation, might be tempted to turn to the law.
Fourth, what NBA free agent is now going to want to sign with the Cavs when if they later leave they could be savaged by the owner (who only seems to care about loyalty when people leave, as opposed to join, the Cavs)?
Fifth, and lastly, where is the NBA on this? The Cavs' website is part of NBA.com. I understand that NBA teams have primary, though not exclusive, control over website content, but if the NBA is a single entity (as it claimed in its American Needle amicus brief), shouldn't it try to seize control over this situation, as the Cavs would just be a department of the NBA? Then again, maybe the league loves the drama and the fact that everyone's talking about it. But I could see at least some NBA owners finding the letter to be bad form, and we know from NHL v. MSG that leagues can exercise control over team pages on league websites. Posted By : Michael McCann
Lebron James and his Big Decision: Thoughts on Role of Endorsement Income Potential and State Income Taxes
Message posted on : 2010-07-08 - 08:41:00
At 9 p.m. tonight we'll find out where Lebron James – who at age 25 has already made $68 million in NBA salary and around $200 million in endorsement deals – will play for the next five or six years. It seems that he'll select from one of four teams: the Miami Heat, the New York Knicks, the Chicago Bulls or his current team, the Cleveland Cavaliers.
What factors could be motivating his decision? A supposedly leading reason for James to sign with the Knicks is that he would attract better endorsement opportunities there than if he stayed in Cleveland or signed with Chicago or Miami. Is that true? Even if it is, do differences in state income taxes prove more valuable than differences in potential endorsement income?
As a starting point, it's safe to say that endorsement income is not as geographically contingent as it used to be. In fact, with the bevy of technologically contingent ways that we now follow sports – TV, websites, blogs, PDAs, video games, fantasy sports, etc. – it may not even matter which city one plays in.
James seems to illustrate this point. He earns at least $28 million a year in endorsements while playing in Cleveland, the mere 18th largest media market. Despite what would seem like a geographic disadvantage, James earns more in endorsement income than any other NBA player. Also, his most lucrative deals are with “A List” companies, including Nike, Sprite, McDonald's, State Farm, and Upper Deck.
To be sure, he would have attracted that same caliber of endorsement opportunities had he been playing for the Knicks or Lakers for the last 7 years. You might also argue that he would have had more local endorsement opportunities in New York City or Los Angeles. Fair enough.
Then again, there's only so many endorsement deals that a player can enter into before the value of his endorsement becomes too non-exclusive or non-special. Besides, it isn't like we haven't been able to watch James whenever we want while he's been in Cleveland; we're not in 1980 anymore with no internet/cable etc.
Geography might matter more in another way: state income taxes, which vary a great deal. Some states, like Florida and Texas, have no state income tax, while others, like New York and California, impose relatively heavy tax burdens, especially on high-earners. Signing with a team that plays in an income-tax free state does not mean the player completely avoids paying state income taxes. Taxes are generally allocated based on where games are played, so when a player plays a road game in a state that has an income tax, he would be obligated to pay a state income tax for income related to that game. Still, he would not pay income taxes for all of his home games or games in other states which lack a state income tax.
While state income tax rates are probably not at the top of the list of deciding factors for James, they are meaningful in a financial sense. In Florida, James would not pay a state income tax for his home games; in Illinois, he would pay a 3.0% state income tax, in New York, he would pay an 8.97% state income tax. Assuming, for the sake of argument, that James earns about $16.8 million in 2010-11 in a max free agent contract, about half of that
income – the income for home games – would be subject to state income taxes should he sign with the Knicks or Bulls. More specifically, he would pay $753,480 to the New York state treasury if he signs with the Knicks or $252,000 to the Illinois state treasury if he signs with the Bulls. He would keep his money, at least from the hands of state government, if he instead signs with the Heat.
Or James could decide to stay with the Cavaliers. In that case, he would earn more in a contract (about $20 million in 2010-11) because teams can re-sign their players for more than other teams can sign them. He would, however, be subject to a 6.24% Ohio state income tax on about half of his income, meaning his state income tax burden would be about $624,000.
Actual income tax calculations would of course be much more complicated than depicted above, especially when factoring in playoff games, road games in states without an income tax, deductions and other forms of state and local taxes, which are on the rise in most states, most acutely in New York. And no matter where James plays, he'll be paying the federal government to the tune of a 35% marginal tax rate.
Nevertheless, the impact of state income taxes is real, and should James take less to sign with the Heat over the Knicks, a reduction in salary may be offset by the lack of Florida state income tax. It's also not clear that going to the biggest media market means better endorsement opportunities, at least not now-a-days. Plus, if James joins Dwayne Wade and Chris Bosh in Miami, and proceeds to win 75 regular season games and an NBA title possibly every year they're together, I'm sure there would be plenty of endorsement opportunities.
My thanks to my Vermont Law School colleague and good friend Jason Czarnezki, with whom I had a fun discussion about this topic the other day and whose comments were very insightful. Jason co-runs a great blog called Czarnezki.com. Update: Paul Caron at TaxProf Blog has a good post discussing detailed numbers compiled by Kyle Gillis of the Business & Media Institute for the likely tax consequences. The take-away from Professor Caron:
Here are the projected state and local taxes on a five-year, $96 million contract:
$12.34m: New York Knicks
$10.32m: New Jersey Nets
$5.69m: Cleveland Cavaliers
$2.85m: Chicago Bulls
0: Miami Heat
Interesting stuff, though the numbers don't tell the whole story for a few reasons.
First, James would be able to sign for about $25 million more with the Cavaliers on a 5-year contract because the NBA pay scale provides large financial incentives for free agents to stay with teams.
Second, if James, as expected, signs with the Heat, he'll have to sign for something of a discount in order for he, Wade, and Bosh to have contracts with the Heat that stay under the NBA's salary cap.
And third, the Florida tax break would only enable him to avoid paying taxes for Heat games played in Florida; road games in other states would still be taxed under those states' income taxes. Still, the Heat contract would likely be in the neighborhood of $90 million, and with the Florida tax break still partially benefiting him, he would probably still end up making more with the Heat than if he were to sign with the Knicks.
Update 2: Professor Edward Zelinsky, a tax law expert at Cardozo Law School and contributor to the Oxford University Press blog, lets me know of an added tax wrinkle to Lebron's Choice:
[It's] potentially even more complicated. Suppose that LeBron plays in Miami but maintains his residence in Ohio. In that case, Ohio still taxes his entire income, giving credit for taxes paid to other states. If, however, LeBron becomes a Florida resident, he also benefits from state tax-free treatment of his investment income.
If there's a law student out there looking for a law review/journal note topic, the dynamics of an NBA superstar free agent contract might be a good one. Between the coordination of individual free agents (Wade, Bosh, and James seemingly collaborating) and the tax and economic considerations, there would be a lot to write about and it would be new ground for sports law scholarship. Posted By : Michael McCann
Update on Kobayashi's Contract Issue
Message posted on : 2010-07-07 - 10:31:00
Calorielab.com has just posted a new piece on the contract issues between Kobayashi and Major League Eating (MLE). The article gives more details on the potential contract issues involved, raising issues that test the legality of the arrangements. To get a background, read my earlier piece here.
The article sums up the contracts signed between competitions and an MLE-related organization, the World League of Competitive Eating (WLOCE). They restricted any competitive eater from appearing in non-sanctioned events (no surprise there), but also requires that the sanctioning body be appointed the competitor's agent with regarding to any paid appearances, endorsements or merchandising, giving the WLOCE 20 percent of the gross for any such activities. Additionally his image can only be licensed by the WLOCE.
If this is true (and we do not know for sure), I would be counting the days before litigation begins. Posted By : Mark Conrad
NCAA APR data expected to identify coach.
Message posted on : 2010-07-06 - 14:59:00
The NCAA is expected to publish an internet database this summer with academic scores for teams in six sports-football, baseball, men's and women's basketball and men's and women's track and field. The internet database is also expected to identify the names of coaches with the APR data for their team. In the past, APR data was reported on a school-to-school basis. Past reports did not release coaches' names.
Some coaches criticize the APR formula and worry that they are being held accountable for situations where they exercise no genuine control. For instance, Duke Coach Mike Kryzewski thinks the APR formula expects too much of coaches when players depart early for the NBA.
The APR formula assigns one point per semester for academic eligibility, one point for remaining with the school or one point for graduating. A perfect team score is 1000 points. A team APR below 925 faces conditional scholarship losses and a team score consistently below 900 may face greater penalties. A school isn't penalized by early departure of eligible athletes or by student transfer with a grade point average of 2.6 or above. The score will indicate transition periods when a new staff may take an APR plunge. The internet database will not include reports of whether penalties were imposed on the program.
Walt Harrison, chairman of the NCAA's Committee on Academic Performance, said in the interest of transparency and accountability the APR data should be available and coaches should be held responsible.
Biediger v. Quinnipiac University: Can competitive women's cheerleading be considered a Title IX-eligible sport?
Message posted on : 2010-07-06 - 14:54:00
Whether cheerleading is a sport and whether it should count in Title IX analysis are subjects that we've periodically considered on the blog. In 2005, Greg Skidmore wrote about cheerleading and Title IX when the University of Maryland added cheerleading as a variety sport. Tim Epstein addressed the tort implications of cheerleading in his 2006 post, From Poms to Pain, and more recently both Tim and Howard Wasserman have considered Wisconsin courts' handling of cheerleading as a contact sport and the impact on Title IX, particularly in the Noffke v. Bakke decision.
As discussed a couple of weeks ago by Pat Eaton-Robb of the Associated Press, the future of the seven universities that currently offer competitive cheerleading may hinge on U.S. District Judge Stefan Underhill's view of competitive cheerleading in a class action case expected to be decided later this month. The case, Biediger v. Quinnipiac University, is before the U.S. District Court for Connecticut.
Here's the gist of the case: Although the NCAA does not recognize competitive cheerleading as a sport, Quinnipiac University argues that cheerleading is a sport and ought to be Title IX eligible. Indeed, Quinnipiac counted competitive varsity cheer squad members among the athletic opportunity allotments provided to women as mandated by Title IX. By counting their cheerleading team, the school reasoned that it could terminate the women's varsity volleyball program and still report equitable allotments of athletic opportunities to men and women.
When it learned of the school's plan to terminate the women's volleyball program, the volleyball team responded--in court. It filed a lawsuit claiming that if the school proceeds as planned the school will be in violation of Title IX and the volleyball team members will suffer irreparable harm. Additionally, the volleyball team criticizes the school's roster management and EADA reporting practices. Specifically, the volleyball team claims the school relies on a roster management policy of setting artificial roster floors to generate inflated figures, which in turn gives a misleading appearance of Title IX compliance.
About a year ago, Judge Underhill issued a temporary injunction preventing Quinnipiac from cutting the women's volleyball program or any other female opportunities. In his order, the judge reserved ruling on whether competitive women's cheerleading is a Title IX-eligible sport.
Closing arguments occurred three weeks ago, and in its closing statement, Quinnipiac argued that competitive cheerleading meets every requirement for consideration as an emerging sport: “Don't close the door to the thousands of women who intend to compete in this new sport and it is a sport. If
the court doesn't recognize it will be a death knell (to competitive cheerleading).” Quinnipiac University intimated that if they could not count the competitive women's cheer team under Title IX, the sport may be economically unsustainable and abandoned.
Many thanks to research assistant Britney Turner for her assistance on this post.
Posted By : Britney Turner
Competitive Eating and Uncompetitive Contracts
Message posted on : 2010-07-05 - 10:01:00
The arrest of competitive eater Takeru Kobayashi for apparently entering the stage after the conclusion of the annual July 4th Nathan's Hot Dog Eating Contest at Coney Island received considerable coverage in the mainstream press. Kobayashi, a world-class competitive eater and former Hot Dog Eating Champion was not eligible to compete because of a "contract dispute" between him and Major League Eating ("MLE"), the governing body of the sport.
I won't focus on the arrest and the charges filed, but the contract dispute intrigues me. Based on reports here and in Japan, Kobayashi claimed that the MLE sought to change its contract restrictions regarding out-of-competition income. According to CalorieLab.com, which has covered the story here and here, Kobayashi, who has earned endorsement income from deals with MasterCard, Coors Light and Western Canadian Lottery claimed that the revised contract prohibits him from earning any outside endorsement income, while prior agreements only limited his right to compete in non-MLE sanctioned earning contests in the United States and Canada.
Despite not having access to the particular contract terms [if anyone has a copy, please upload a link], Kobayashi has a legitimate argument that the agreement is anti-competitive if it strips him of the right to earn endorsement monies. The question is how restrictive it is. I think a court would allow a restriction on companies that directly compete with MLE sponsors, but if it precludes any endorsements because of the possibility of a conflict, then it is severely restrictive. I do not see how this would fall the rule of reason test, especially in a sport which does not pay winning contestants large amounts of money. Also, a good case can be made that the MLE is the "relevant market" for competitive eating (as the major league of the sport). If it would go to trial, I think it's a good bet that a court and a jury would look skeptically at such restrictions. In fact, another well-known competitive eater, Sonia Thomas, has to work as a manager at a Burger King because her earnings from competitions are not enough to sustain a living.
I would even find some question under traditional contract law. Given that Kobayashi popularized the hot dog eating event from a unknown localized stunt years ago to an ESPN-covered staple of July 4th, with tens of thousands braving the heat to attend, MLE may have utilized economic duress (threatening to prevent him from competing in the leading eating competitions) to force him to accept a one-sided restriction, thereby ending his claim to fame and much of his livelihood. Unconscionable perhaps? A tough order, I realize, but an argument that merits at least some consideration.
I'll be watching this case and if I find a copy of the proposed contract I will update the post.
Posted By : Mark Conrad
Ex-NBA Players and Their Financial Situation
Message posted on : 2010-07-03 - 12:46:00
http://www.boston.com/sports/basketball/celtics/articles/2010/07/02/desperate_times/ Posted By : Michael McCann
Theo Epstein, Juris Doctorate, Best GM in Baseball
Message posted on : 2010-07-02 - 15:56:00
Thirty years ago, Red Sox general manager Theo Epstein probably wouldn't have had the chance of becoming a big league GM. That may even have been true 20 years ago.
He never played or coached professional baseball, college baseball, or even high school baseball, was never an agent, and he got his break while an undergraduate student at Yale University (where he served as sports editor of the Yale Daily News) when he snagged a press internship with the Baltimore Orioles.
That doesn't seem like a likely path to becoming a big league GM, especially by the age of 29, but Epstein -- who also completed his law degree at the University of San Diego School of Law while simultaneously serving as Director of Baseball Operations for the San Diego Padres -- managed to pull it off.
In fact, not only did he become a GM, but two World Series championships later, he's emerged as one of the best. According to an anonymous poll of 12 GMs conducted by Buster Olney, Epstein is the best GM in baseball. Here's the excerpt:
IF YOU NEEDED A GM, WHOM WOULD YOU HIRE? - Epstein (8 out of 12 votes) "Theo's career has been helped by being in Boston, but I think that if you had put him in Kansas City five years ago, they'd be pretty good right now. If you were an owner, it would be hard to find someone better."
If its true that earning the respect of one's peers is the best measure of one's success, then Epstein's done extremely well. While it's hard to know if Epstein's legal training has helped him as a GM, I would venture a guess that it has. As anyone who attends or has attended law school knows, law school is extremely challenging and it forces people to be specific, use logic, and avoid reaching conclusions without explaining one's reasoning. I imagine when thinking about trades and player contracts, and drafting players, those are helpful attributes, even if they might make people occasionally seem less decisive.
Hopefully we'll see other law school grads who lack personal athletic achievement enter and excel in the professional sports world in management positions. Epstein of course isn't the only law school grad who's achieved success in team management -- Celtics Assistant GM Mike Zarren, a 2005 graduate of Harvard Law School, is one that immediately comes to mind, as does Sacramento Kings Assistant GM Jason Levien -- but he's probably had the most success, at least so far. Posted By : Michael McCann
Did Kagan bury the umpire analogy? Maybe
Message posted on : 2010-07-01 - 11:59:00
As Mike notes, Elena Kagan took on the judge-as-umpire/ball-and-strike meme yesterday in response to a question from Sen. Klobuchar and knocked it out almost as successfully as she could. No transcripts to be found, but here is the video and some thoughts after the jump.
1) Kagan said it was apt in saying that judges, like umpires, should not have a "team in the game," should not come onto the field rooting for one team over another.
OK answer, although she lost points for not using the Twins in her hypo in response to a question from a Senator from Minnesota.
As I have argued before, to the extent this is what the metaphor means, it does no work. No one believes a judge should be "rooting" for one party over another and we don't need an analogy to baseball to drive the point home. Besides, no one seriously believes an umpire "roots" for one team or that a judge "roots" for one party.
But there's more something going on here, tied to the complexity of law and the fact that different judges can reach different conclusions (which Kagan talks about later). An umpire may not be rooting for a particular team, but an umpire who interprets and enforces certain rules a certain way may benefit one team over another. An ump with a wider strike zone will make calls more to the benefit of a team with control pitchers who work the outside corner; an ump with a narrower zone benefits teams with patient hitters who work counts. Similarly, I would not say that Justice Scalia "roots" for the government in a challenge to abortion laws. But given that his reading of the relevant (far-less-determinate) rule is that Due Process does not provide a liberty to obtain an abortion, he is likely to find for the government in any challenge to a restriction on abortion. That does not mean Scalia is biased towards the government any more than it means Umpire X is biased towards the team with patient hitters. And it does not make their approach to law illegitimate. But the nature of the legal rules is such that one party always will benefit from that person's legal views. This is why you cannot evaluate anything solely based on outcomes.
2) Kagan also said the metaphor is right (and she believes this is what Roberts meant) in saying that judges must understand that they, like umpires, are not the most important people in the game. Policymakers (Congress and the Executive) are the more important players in the game, with judges playing the limited role of policing the constitutional boundaries of congressional and executive action and conduct.
I did not like this part of the answer, in part because it could give the metaphor new, different life. Neither courts nor umpires play a limited role. Umpires necessarily are involved in every single play--not one pitch is thrown in a baseball game that does not result in at least one pro forma call on the play. Moreover, I never read Roberts as using the analogy to say that judges should not vigorously exercise the power to police the constitutional boundaries; certainly his behavior on the Court does not indicate a belief in according great deference to the elected branches. So I hope the metaphor does not become a catchphrase for more constrained judicial review.
Plus, it's just
wrong. Umpires don't "decide" the game--who wins and loses. That is done by the players who throw the ball, catch the ball, and hit the ball. So, sure, umpires are secondary to the players on the field. But judges (at least in non-jury cases) do decide the case; it is their job to determine who wins and who loses in litigation that has been brought before the court. So judges, of necessity, are a major player in litigation. As I argued in my LSA panel on the metaphor: We could have a baseball game without umpires and we would understand it to be baseball, but we could not have litigation or adjudication without judges.
3) The metaphor fails at the task for which many Senators and others (not clear if Roberts falls in this group) have put it: Making judging appear simplistic and law clearly determinate such that any judgment is unnecessary and, in fact, bad. Quoting in full:
[T]he metaphor might suggest to some people that law is a kind of robotic enterprise. That there's a kind of automatic quality to it. That it's easy. That we just sort of stand there, and we go "ball" and "strike" and everything is clear cut, and . . . there's no judgment in the process. And I do think that that's not right, and it's especially not right at the Supreme Court level, where the hardest cases go, and the cases that have been the subject of the most dispute go. . . . Judges do in many of these cases have to exercise judgment. They're not easy calls. . . . But we do know that not every case is decided 9-0 and that's not because anyone is acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. . . . [L]aw does require a kind of judgment, a kind of wisdom.
It would have been nice if she also acknowledged that even umpires do not just go "'ball' and 'strike'" and that they exercise interpretation and judgment as well. Thus the broader point is that no decisionmaking is robotic or automatic and we should stop acting as if it ever is. Part of what always has bothered me about the metaphor is that it is based in the first instance on a misunderstanding of what umpires do.
Otherwise, this answer was spot-on in explaining why the metaphor does not work--rules always must be interpreted and judgment exercised. Stop pretending the rules are easy, mindless, or clear, obvious, and determinate. And stop acting as if a decision with which you disagree was illegitimate or based on person preferences (that accusation was a recurring theme towards any justice or decision with which a questioning Senator disagreed).
Is the metaphor gone forever? I doubt it. I expect to hear it repeated in the committee and floor debates on Kagan, as well as in the hearings on Obama's next nominee. But Kagan started to lay out a pretty good map of how to attack the analogy--certainly as much as is possible in the current (unfortunate) political context. Posted By : Howard Wasserman
Supreme Court nominee Elena Kagan says she agrees with Chief Justice John Roberts that justices basically act like baseball umpires in deciding complex legal issues.
But Kagan said the metaphor isn't quite that simple.
She said Wednesday that while judges should be strictly neutral, they also have to exercise difficult judgments. Said Kagan: "They are not easy calls."
At his confirmation hearings, Roberts said justices call balls and strikes. Kagan said the weakness of the metaphor is that it "might suggest to some people that law is a kind of robotic exercise, that there is a kind of automatic quality to it, that we just stand there and call balls and strikes."
Thanks to Associated Press writer and Boston College professor Jimmy Golen for referring me to the story. Posted By : Michael McCann
Justice Stevens and the Baseball Antitrust Exemption
Message posted on : 2010-06-30 - 12:30:00
Henry Fetter has written an interesting piece for The Atlantic, looking back at retiring Supreme Court Justice John Paul Stevens' work as associate counsel to the Monopoly Power Subcommittee of the House of Representatives' Judiciary Committee, and in particular the role he played during the 1951 Celler Hearings regarding the antitrust status of Major League Baseball. Here is an excerpt:
As curious crowds thronged the Capitol amidst a crush of reporters and newsreel cameras, a diverse lineup of baseball notables took the witness table, including major and minor league officials, team owners, ball players, even sports writers, and associate committee counsel Stevens was asking many of the questions. Not always with success in getting clear answers, as press accounts of his persistent pursuit of a characteristically elusive Branch Rickey show. And Stevens also had to confront a rather forthright rebuke from one witness: sports columnist Red Smith insisted "that in these times I think there are graver matters. I think there are more pressing matters to deal with." Perhaps relieving any frustration and sting from such encounters, Stevens did have the chance to engage in a more amicable interchange with Phil Wrigley, owner of his own beloved Cubs.
The full article is available here. Posted By : Nathaniel Grow
Message posted on : 2010-06-30 - 10:05:00
In last month's Major League Baseball draft, the Boston Red Sox drafted Bryce Brentz, a 21-year-old outfielder from Middle Tennessee State University, as a supplementary first round pick. The Red Sox and Brentz quickly worked out a contract and Brentz is now playing for the Lowell Spinners in Class A (short season). He's off to a very slow start -- a .152 batting average after his first 105 at-bats -- but it's early and he's expected to hit well.
That expectation is based in part on Brentz's college career, during which he was considered one of the best amateur hitters around. Despite his college success, the Red Sox want Brentz to make some changes as he transitions from amateur to professional. That's to be expected, of course, especially with switching from aluminum bats to wooden bats and from playing several times a week to playing everyday for weeks on end.
One uncommon change the Red Sox expect Brentz to make concerns his eyes. After he was drafted, the Red Sox told Brentz -- whose vision is either 20/20 or very close to it -- that he needed to wear contact lenses so that his vision would improve to 20/15 or 20/12. Brentz accepted the Sox request and is now wearing contacts for this first time in his life. He tells Brian McPherson of the Providence Journal that wearing contacts has impacted his hitting, both good and bad, depending on the kind of pitch thrown:
I can see the edge of the contact on my eyes when I look around, like in the peripheral . . . Looking at something, it stands out more. It's more clear. It's more crisp. But on a fastball, it looks like it's closer than it really is. I've just got to get used to it.
Asking a player to wear contact lenses is not a very invasive request. Contacts, as those of us who wear them know, are relatively easy to wear once you get the hang of them, though they sometimes cause the eye to become dry and can occasionally be annoying for other reasons. But if a player doesn't like to wear contacts, he can just take them off after the game; wearing contacts does not change a person's body, they only cause the person's eye to see better for as long as they worn.
But what about the fact that Brentz has normal or almost normal 20/20 vision? And say he had declined the Red Sox's request because he felt that his 20/20 vision -- which was good enough for him to become one of the best hitters in college baseball -- was just fine as it was?
After-all, Brentz wearing contacts is not about correcting an injury; it's about improving his vision to a level better than normal.
Should players be expected, upon team request, to use medical devices in order to alter their normal health in a non-corrective way?
Or take it a step further. What happens if teams begin to ask players with 20/20 vision to have Lasik surgery to go to 20/15 or 20/12 vision? The Braves reportedly encouraged Greg Maddux to have Lasik surgery, though his vision was not 20/20 at the time. Would a request that a 20/20 player have surgery to enhance his body -- as opposed to correct an injury -- raise any ethical worries?
Would surgery be more like a (legal) steroid in that instance?
To be sure, players, and not teams, decide whether players are going to have surgery. However, one could question how much "choice" a player believes he has if he wants to keep his job. But ultimately it's the player's call.
Teams, in fact, sometimes don't want players to have surgery, particularly if the player would be shelved for a long period of time. As I discussed in my SI column on Carlos Beltran and the Mets disagreement about the necessity and choice of doctor for a knee surgery, MLB's collective bargaining agreement is purposefully vague as to how to resolve disagreements about player health care:
Interestingly, and understandably, the collective bargaining agreement does not expressly resolve how teams and players should reconcile differences in opinions over the appropriate course of a player's treatment and who should perform a particular surgery. Instead, the agreement essentially encourages players and teams to work out their differences in good faith and with an appreciation for reasonableness, taking into consideration the desires of both parties.
Vagueness may be the best course of action for issues of this sort, but as new medical devices and surgeries emerge, perhaps leagues and players' associations will need more specificity. For a few related and terrific posts, see Alan's Clip, Clip, Baby! (from May 30, 2010), Howard's Why is Steroids Use Considered Cheating (Oct. 10, 2006) and Greg's Performance-Enhancing Surgery and Sports (April 21, 2005).
Posted By : Michael McCann
USC, Institutional Control, and Analogizing the NCAA and the Securities and Exchange Commission
Message posted on : 2010-06-30 - 08:50:00
Lewis & Clark law professor Tung Yin has a thoughtful post on his blog, The Yin Blog, that looks into the NCAA's sanctioning of the University of Southern California and draws parallels to SEC investigations. Here's an excerpt:
As virtually all college football fans must be aware, the NCAA has dropped a 2000 lb JDAM on USC for its failure of institutional control over its sports programs. If USC does not succeed in its appeal, it is facing a 2 year ban on postseason play, the vacating of 14 victories in late 2004 and all of 2005, which includes a victory in the BCS championship game over Oklahoma, the loss of 30 scholarships over 3 years, and 4 years of probation.
The NCAA faulted USC for violations in its football, men's basketball, and women's tennis teams. Football star Reggie Bush, who won the Heisman trophy in 2004, was found to have been essentially paid -- and hence ineligible for collegiate play. Basketball player O.J. Mayo was similarly paid by outsiders. (The tennis violations had to do with impermissible long-distance calls, seemingly of much smaller scope than the Bush and Mayo violations.)
What's of interest to me is the seventh infraction in the report: "Lack of Institutional Control" . . . The crux of USC's defense is that it did know of the Bush and Mayo violations and there was no reason it should have known of them; and that the NCAA should not have relied on statements by persons of questionable credibility.
"Lack of institutional control" sounds something like "failure to supervise" in the context of SEC investigations, which is something I dealt with a bit when I was in private practice. Whether one should be required to have compliance controls in place is debatable, I suppose, but that fight has been lost, before both the NCAA and the SEC.
"Failure to supervise" typically arises when you have a rogue employee who does something bad, such as engage in violations of the securities laws. Because corporations are liable for the acts of employees within the scope of employment with (at least partial) intent to benefit the corporation, the company may find itself responsible even though it did not condone the employee's actions and in fact may have been victimized in reality. (The intent to benefit prong is interpreted pretty broadly.) The SEC might slap the corporation for inadequate supervision of the rogue employee.
The important point here is that "we didn't know the employee was doing bad stuff" is not a defense to such a charge. If anything, it aggravates the charge. About the only way you can try to defend yourself against this kind of charge is to show that you had adequate compliance controls in place, which the rogue employee somehow ingeniously circumvented.
To read the rest, click here. Posted By : Michael McCann
Jennifer Capriati and the "Capriati Rule"
Message posted on : 2010-06-29 - 13:52:00
Yesterday, various media outlets reported that Jennifer Capriati was rushed to a hospitial for a possible overdose of prescription drugs.
At the age of 34, Capriati has not played professional tennis for 5+ years following shoulder surgery. However, she has yet to officially retire from the sport. Her career record is impressive. Among the numerous highlights - a gold medal in 1992, three Grand Slams titles, and a top ten world ranking at the age of 14.
Capriati's career is also tied to sports law. In 1995, the WTA Tour (the governing body for women's professional tennis worldwide) enacted a minimum age rule. The WTA Tour age eligibility rule is sometimes dubbed the "Capriati Rule" given that it was adopted shortly after Capriati burst onto the tennis scene as a prodigious 13-year-old. Numerouslawreviewarticleshavebeenwritten about the legality of minimum age rules under antitrust law. However, the number of actual legal challenges has been minimal. The most prominent case, of course, was Maurice Clarett's lawsuit against the NFL. In tennis, Mirjana Lucic filed a 1997 lawsuit in Australia, but did not find any success. In 1999, American teenager Monique Viele threatened to file an antitrust suit against the WTA Tour, but never made good on her threats.
In my research on the issue, I have generally found such age-based policies to pass antitrust muster. As such, I am not surprised by the dearth of actual litigation on the issue. However, I remain curious about the effects such policies have on the careers of players subject to the rule's requirements. Over the course of the past two years I undertook a research line that tests the impact of minimum age rules in various sports empirically. Using the tools of econometrics, I investigated the impact of such rules. Dan Stone and I recently finished the first stand-alone paper to come from this research line and are presenting our findings at the Western Economic Association's annual conference tomorrow. We look forward to receiving feedback from other researchers.
Next up is applying similar research methods to the NBA and building on Mike McCann's work. I recently finished compiling a data set that includes every first and second round NBA draft pick since 1975. In the case of women's tennis, we found the 1995 age rule to have very little impact on the labor market outcomes of players subject to the rule. I have yet to run the regressions for the NBA data, but look forward to seeing if there is any evidence to disprove the null hypothesis. Posted By : Ryan M. Rodenberg
Being Rasheed Wallace: Would you Walk Away from $12 Million Guaranteed?
Message posted on : 2010-06-28 - 12:56:00
In the wake of the Lakers defeating the Celtics in the NBA finals, Celtics center/power forward Rasheed Wallace surprisingly retired. Though he played in 79 of the 82 regular season games and all of the Celtics' playoff games, the 35-year-old Wallace has battled an assortment of injuries in recent years, including foot and ankle problems.
So he decided to call it a career.
In doing so, Wallace will walk away from more than $12 million in guaranteed salary over the next two years [note: there is a possibility, though not a certainty, that the Celtics will give Wallace a portion of the salary in a buyout]. With his playing career over, it seems unlikely he'll ever come to close to earning that kind of salary doing anything else.
Why would somebody walk away from so much money when there's probably no source of income that will ever come close to being a substitute? Hasn't Wallace seen the startling research by Sports Illustrated's Pablo Torre showing that "Within five years of retirement, an estimated 60% of former NBA players are broke"?
To be sure, Wallace could have bucked saving/spending trends of not only pro athletes but Americans in general. As has been reported for many years, we are really, really bad at saving money, but maybe Wallace proved to be an exception. It's also certainly possible that Wallace's agent, Bill Strickland (who's about to lose his 3 or 4% commission on the $12 million), and financial advisers gave him good advice during the 14 years he played and, according to Basketball Reference, earned $150 million in NBA salary.
Still, I find it surprising, and on some level admirable, that someone would walk away from such a huge amount of guaranteed salary. That's especially the case when you think about how easy it would have been for Wallace to get the money. He could have simply gone through the motions for a couple of years or lingered on the injured reserve while collecting paychecks that exceed what most earn in a year (NBA players are paid twice a month and only during the season).
Not sure how many people in Wallace's position would do the same thing, but I can't imagine it's a high percentage. I guess this shows that it's not always about the money.
Update: as Brian mentions in the comment section, former big league reliever Keith Foulke did a similar thing a few years ago, but it didn't work out so well, at least not money-wise. In January 2007, a then 34-year-old Foulke passed a physical with the Cleveland Indians and signed a guaranteed 1-year, $5 million contract with the team. A few weeks later, however, he decided to retire because of recurring elbow problems, thereby walking away from the $5 million. He would never pitch for the Indians. But a year later, Foulke changed
his mind, unretired, and signed a 1-year, $700,000 contract with the Oakland A's. That was his last big league contract. Hopefully Wallace isn't making the same mistake here. Posted By : Michael McCann
More Antitrust and the BCS
Message posted on : 2010-06-27 - 11:15:00
Following up on my post from last week, the Idaho Statesmen features an interesting article today regarding a potential antitrust lawsuit against the Bowl Championship Series. The article notes that Utah Attorney General Mark Shurtleff intends to continue his pursuit of an antitrust case against the BCS, despite Utah's recent admission into the Pac-10. The article reports that AG Shurtleff will be meeting with the U.S. Department of Justice in mid-July to discuss the possibility of the DOJ challenging the BCS under federal antitrust law, with a decision from the DOJ expected this fall.
The article also includes an interesting discussion regarding the effect that a possible appearance by Boise State in this season's BCS National Championship Game would have on a potential antitrust suit against the BCS. While other strong antitrust claims against the BCS would continue to exist, having a university from a non-BCS conference appear in the national title game would nevertheless weaken such a case, enabling the BCS to argue that its system is truly open to all Football Bowl Subdivision universities, regardless of conference affiliation. This is one of the reasons why I believe that claims based on price-fixing and unequal revenue distribution provide a stronger basis for an antitrust challenge to the BCS, shifting the focus of the case from one of access to the financial disparities inherent in the current system.
The first post-American Needle sports-related case was released by the U.S. Court of Appeals for the Third Circuit today. The case is Deutscher Tennis Bund, et al vs. ATP World Tour, et al, No. 08-4123. As of 6:oo PM PDT, the Third Circuit had yet to make the decision available on its website, but I will update this post as soon as it is available. In the interim, I have a copy that I can email to anyone as an attachment upon request. UPDATE - With a hat tip to Nathaniel Grow, the decision can now be found here.
Sports Illustrated's Jon Wertheim and I are collaborating on a law review article about the case (working draft will be posted on SSRN soon) and have been following its developments for the past several years. The case won't receive much attention vis-a-vis the Supreme Court's recent American Needle decision, but is important for a number of reasons. Most notably, it represents the most exhaustive discussion of the authority of an individual sport league to make rules, set schedules, determine player eligibility, etc.
The impetus for the case was the ATP's 2007 move to re-work its tournament calendar. Plaintiff's tournament was demoted as part of the schedule change. Rather than accept its new status as a lower tier tournament, Deutscher Tennis Bund filed suit alleging that the ATP and several individually-named members of the board of directors violated Section 1 and 2 of the Sherman Antitrust Act (allegations also included breach of fiduciary duty claims against the board members). After extensive discovery, the case went to trial in Delaware. At trial, both parties used expert witnesses. The District Court judge ruled for the ATP as a matter of law in connection with some of the plaintiff's claims. A jury verdict was returned for the ATP on the remaining claims.
Some observations and links about the 45 page Third Circuit decision are below:
1. Oral argument was revealing. Audio is available here (scroll down to #08-4123). Rob MacGill of Barnes & Thornburg argued on behalf of plaintiff. Brad Ruskin of Proskauer Rose represented the ATP during oral arguments. One of the three judges (I can't tell which one on audio) asked Brad Ruskin if the yet-to-be decided American Needle decision would be controlling. Listen to his insightful reply.
3. Judge Scirica wrote for a unanimous three-judge panel in favor of the ATP. He opened by making an important distinction that is probably only known by fairly hard-core tennis fans - the ATP does not control the four Grand Slam tournaments (Australian Open, Roland Garros, Wimbledon, and the US Open). Such tournaments (as well as the Davis Cup and minor league "Futures" tournaments) are under the International Tennis Federation's (ITF) jurisdiction. In contrast, the ATP oversees all remaining elite-level professional men's tournaments. Examples include the big US tournaments every year in Indian Wells, Key Biscayne, and Cincy as well as smaller US-based tournaments such as Atlanta, San Jose, and Washington, DC.
4. Judge Scirica's opinion followed a fairly standard analytical framework. Seminal cases such as Standard Oil, Continental TV, Dagher, and Nat'l Soc. Prof. Eng. were all cited.
This part of the opinion reminded me of American Needle.
5. Today's opinion, in contrast to American Needle, cited many more sports-related cases (many in footnotes). The most treatment was devoted to the Seventh Circuit's Chicago Bulls decision and Justice Stevens's SCOTUS NCAA vs. University of Oklahoma opinion from 1984. Of course, American Needle was also cited a number of times. With that said, Deutscher Tennis Bund vs. ATP World Tour was by no means a simple exercise of applying American Needle to the facts of the case.
6. Citing NCAA vs. Univ. of Oklahoma, Judge Scirica stated: "the per se rule does not apply for a tennis tour, like other sports leagues, where 'horizontal restraints on competition are essential if the product is to be available at all.'"
7. Judge Scirica dismissed the possibility of "quick look" treatment too. In sum, upon defendant's showing of procompetitive benefits stemming from the challenged conduct, the "quick look" possibility is "extinguished."
8. The most pointed analysis of American Needle was on pages 28 (for a discussion of the single entity issue) and 29 (reiterating that "substance, not form" controls the antitrust inquiry). There was nothing that extended, distinguished, or refuted American Needle.
9. At the end of Footnote 15, the judge concluded: "the District Court correctly instructed the jury to evaluate the alleged restraints under the full rule of reason." The jury did this, and found in favor of the ATP. On appeal, the Third Circuit found the plaintiff's failure to prove a relevant market for professional tennis player services fatal. Antitrust plaintiffs challenging aspects of sport industry governance would be well-served to read this footnote.
10. In addition to suing the ATP, the plaintiffs also sued a number of directors on the ATP's board. Judge Scirica concluded the decision with a lengthy discussion of the business judgment rule and found that defendant board members did not breach their fiduciary duty to plaintiffs.
Today's tennis case differs markedly from American Needle. The former resulted in a jury verdict that was validated on appeal. The latter is now on remand, with an upcoming trial on the merits if the parties don't settle. Tennis also differs from football. I was surprised the Deutscher Tennis Bund decision didn't spend more time highlighting the differences. In our upcoming article, Jon and I spend a substantial amount of time making the argument that such differences are important...and in some cases should be dispositive.
I will post more moving forward. With the case being released on a Friday during Wimbledon (see Howard Wasserman's post below about the longest match in the history of professional tennis), most mainstream news outlets probably won't write about the case until next week. When such articles do appear, I will link to them in an update.
UPDATE - Randall Chase of the Associated Press wrote a piece for USA Today that includes some quotes from the attorneys involved. Posted By : Ryan M. Rodenberg
Long tennis matches and case-based rulemaking
Message posted on : 2010-06-23 - 23:38:00
My interest in sports law always has been about sports-as-law; that is, what can sports tell us about law, legal rules, and legal systems. The latest example is the epic early-round match at Wimbledon between American John Isner (who at 6'9" also has the distinction of being the tallest player around) and Frenchman Nicolas Mahut. After ten hours of play, the two are tied 59-59 in the fifth set (which itself has lasted more than seven hours). Play was suspended because of darkness and will resume tomorrow. [Update: They played for about another hour today, with Isner finally prevailing 70-68, which means that just today's portion of the match was an extended no-tiebreak set]
Wimbledon (like the French and Australian Opens, but unlike the U.S. Open) does not allow for fifth-set tiebreakers, so the set continues until someone wins two straight games (with a break of service). This rule has provided some great historical moments--the 8-6 fifth set between Bjorn Borg and John McEnroe in the 1980 Men's Finals or the 16-14 fifth set between Roger Federer and Andy Roddick in last year's Final. But it also creates ridiculous moments such as this one. Neither player is close to breaking the other's serve (Isner has 98 aces, Mahut 95), so no one is close to winning two straight games. Actually, this match may highlight why many believe grass tennis is obsolete, at least for men--serves are just too overwhelming and breaks are extremely rare. Both players actually are playing well--lots of winners, few unforced errors. But that is because their serves are so dominant that service points tend to be short, with that dominance exaggerated by the speedy grass surface.
So here is my rule-based quesion: How likely is it that Wimbledon will move to a final-set tiebreaker in the wake of this match? And should the change be made? This illustrates the problem of case-based rulemaking, which is the norm in U.S. (and probably most) legal cultures.
Legal rules generally are made within a particular factual setting. This is obvious where courts make rules (common law or constitutional) in the course of resolving an actual case or controversy. But it also is true for legislative bodies making prospective rules of general applicability, because they usually act with a particular event, case, or situation in mind. The problem with case-based decisionmaking (as Fred Schauer and Richard Zeckhauser argue) is that the case which leads to the rule often is an outlier, an extreme, unusual, unrepresentative case; thus the legal rule that results, enacted in response to those unique outlier facts, may not be the optimal rule for the ordinary situation. This is particularly true for legislative rulemaking, because legislators tend to act, often too quickly and often in something of a moral panic, in response to, and to take care of, the latest high-interest, notorious story that captures media and public attention, even if that story is unusual and far from any norm, and even if the new rule has unintended consequences.
So what should the powers that be at Wimbledon do? Obviously, the Isner-Mahut match (or anything even close) is unprecedented. Should they change the rules to prevent something like it from happening again, since the chances of that have to be slim? We arguably don't need the rule change to keep this case from arising again; a match such as this is so unusual that it never will happen again on its own. So should a rulemaker make a change to prevent a highly unlikely repeat of this unrepresentative match, at the (unintended) loss of future memorable matches (a la Borg-McEnroe) that do not devolve into the current absurdity?
Note that this does not necessarily speak to the merits of the switch to a fifth-set tiebreaker; maybe that is the appropriate rule (certainly the U.S. Open folks believe it to be), especially in light of the modern grass game. But case-based rulemaking
is not only problematic because it may produce the wrong rule, but also because it may produce the right rule for the wrong reasons. In other words, Wimbledon officials must be conscious of all the policy issues and implications in deciding whether a final-set tiebreaker is the "best" rule as a whole. The arguments for change must be more than preventing a notorious-but-unlikely case such as Isner-Mahut from happening again. If that is all they have--if there are not other good reasons for adopting a new rule--they should not do it. Posted By : Howard Wasserman
Reggie Bush and the IRS
Message posted on : 2010-06-23 - 10:48:00
Paul Caron, who always has his eye out of a sports/tax link, reports on efforts by the IRS and California to recover back taxes on the benefits Reggie Bush received from an agent while at USC. The NCAA's infraction report found that Bush received about $300, 000 and may owe (with interest and penalties) as much as $ 200,000. Posted By : Howard Wasserman
It's not about the grades
Message posted on : 2010-06-22 - 07:26:00
The Times has a story today on the trend in law schools to change their grading systems to inflate student GPAs, often retroactively, and make students more marketable. At FIU, we just changed our system (although not retroactively) by eliminating the mean and reworking the distribution.
But grades aside, the end of the story captures what is really important in getting a job:
James Wagner, the hiring partner at the 29-lawyer Boston firm Conn Kavanaugh Rosenthal Peisch & Ford, said he hadn't noticed any grade inflation in the last couple of years. But he has noticed something else new from applicants.
“About a third to half of the resumes I've been getting now profess a love of the Red Sox,” he chuckles, wondering if the students had been coached by their schools.
“But I'll bet that if you compared resumes for those same candidates,” he says, “when they apply to New York firms they love the Yankees, and for Chicago firms, it's the Cubs.”
Posted By : Howard Wasserman
Conference Expansion and the BCS
Message posted on : 2010-06-21 - 13:15:00
Although the conference expansion frenzy has seemingly settled down for the time being (see earlier posts on the subject here and here), one of the questions that remains is what impact, if any, the minor reshuffling will have on the Bowl Championship Series. Specifically, following Utah's recent decision to join the Pac-10, the question arises of whether two of the most strident critics of the BCS, Utah Attorney General Mark Shurtleff and Utah Senator Orrin Hatch, will remain as interested in pursing antitrust claims against the BCS.
Both Attorney General Shurtleff and Senator Hatch have previously accused the BCS of violating federal antitrust law by granting preferential treatment to universities in the traditionally stronger "BCS Conferences," at the expense of teams from the historically less competitive "non-BCS Conferences." Both men became critical of the BCS following perceived snubs over the years to their home state schools, the University of Utah and Brigham Young University.
For his part, Senator Hatch has stated that he will continue his campaign against the BCS despite Utah's recent admittance into a BCS Conference. Indeed, Senator Hatch - a BYU alumnus - has a strong basis to argue that the BCS continues to violate antitrust law.
In a new paper, Antitrust & The Bowl Championship Series, I argue that the BCS remains quite vulnerable to attack under federal antitrust law. In particular, although recent modifications to the BCS have increased the access for non-BCS Conference teams, the BCS can still be challenged on several grounds.
First, I assert that the BCS can be attacked as an illicit group boycott, insofar as it distributes revenue unequally and without justification, to the detriment of universities in the non-BCS Conferences. For example, following the 2009-10 season, the BCS distributed at least $18 million in revenues to each of the six BCS Conferences, while the five non-BCS Conferences received a total of only $24 million, despite two non-BCS schools (Boise State and TCU) having been selected to participate in BCS bowl games. Thus, despite increased access to BCS games for the non-BCS schools, the non-BCS Conferences still face significant differential treatment with respect to the financial payouts accompanying an appearance in a BCS bowl game.
Second, and perhaps more significantly, the BCS can also be attacked as an illegal price fixing scheme, due to the fact that it enables formerly independent, competing entities (the participating BCS Conferences and bowl games) to collectively determine the amount of revenue to be distributed to BCS participants.
Given this continued antitrust vulnerability, combined with the fact that Senator Hatch seems intent to continue pushing for reform, and it appears that the legality of the BCS under federal antitrust law is an issue that will not be going away anytime soon. Posted By : Nathaniel Grow
DRI Panel: Licenses, Monopolies and the NFL: An Examination of the Supreme Court's Decision in American Needle v. NFL and Its Effects in Sports,
A webcast of the event is available. For DRI members, the webcast costs $150; for non-members, it's $180.
Here are more details:
On May 24, 2010, the Supreme Court decided 9-0 against the National Football League (NFL) in American Needle v. NFL, one of the most important legal decisions in U.S. sports.
The case stems from the NFL's decision to enter into an exclusive, long-term apparel license with Reebok and not to renew its license with American Needle. For antitrust counsel, the decision is important because the Court found that the NFL did not constitute a single entity under the Sherman Act because "the NFL teams do not possess either the unitary decision-making quality or the single aggregation of economic power characteristic of independent action." This decision also affects intellectual property counsel who need to direct clients to tread lightly with exclusive licensing deals. Labor or employment lawyers should take note of the potential effects that such decisions have on collective bargaining negotiations, notably the NFL's negotiations with its players for play beginning in 2011.
Who Should Attend
Attorneys representing product manufacturers and sports entities
Intellectual property attorneys
Antitrust counsel
Labor and employment lawyers
Any counsel with an interest in professional sports and the legal issues involved with the same
What You Will Learn
Background on the American Needle case
Licensing basics for merchandising and products, including the benefits and drawbacks for exclusive licenses
Current state of antitrust law
How the courts treat professional sports leagues
Collective bargaining basics as related to professional sports leagues
We hope you can watch our panel discussion. For more info, click here. Posted By : Michael McCann
Why can't MLB Teams trade draft picks?
Message posted on : 2010-06-20 - 09:41:00
Jimmy Golen of the Associated Pressconsiders that question. Here are a few excerpts from Jimmy's article:
* * *
Unlike their counterparts in other major pro sports, baseball teams cannot trade draft picks or even trade players for a year after they were drafted, like the Charlotte Hornets did shortly after picking Bryant or the Colts did with Elway. The rule is supposed to keep struggling teams from frittering away their ticket out of the cellar, but concerns that it might be hurting those it's designed to help have many asking whether it's time to finally lift the ban.
* * *
But while football, basketball and hockey teams can package players and picks to land a coveted star, move up in the draft order or even compensate another team for poaching its coach, baseball limits the market to current players and prospects so losing teams can't sell off their future along with their present.
* * *
"There are a lot of positives that could come from it, and then there's some potential danger that I know traditionally Major League Baseball has been worried about. It could hurt (teams) in the long run, because they'd be tempted to help themselves now, or they wouldn't want to spend the money on the draft picks so they trade them. It's a balancing act." [quoting Red Sox GM Theo Epstein]
* * *
This topic regularly comes up on sports law panels that delve into baseball, and it did when Jimmy moderated a baseball and law panel at Harvard Law School earlier this year.
While I understand MLB's collective interest in seeing that weaker teams rebuild through the draft, it seems odd that MLB, of all leagues, would take a protective view of weaker teams when it has neither a salary cap nor a salary floor, has a wide distribution of teams' payrolls (according to CBS Sports, this season the Yankees have a $206 million payroll while the Pirates have a $36 million payroll; in the NFL, in comparison, the Raiders have a $152 million payroll while the Chiefs have an $84 million payroll according to Altius -- though note Rick Karcher's research showing that salary disparities are not necessarily meaningful for MLB teams' on-field performance), and because there is no slotting of salaries for MLB draft picks, some prospective and very talented draft picks' salary demands are too high for small market teams, so those players drop in the draft to big market, successful teams like the Yankees, Red Sox, and a few others which can meet those players' salary demands. In addition, if MLB truly wanted weaker teams to rebuild, why wouldn't it (with assent from the MLBPA) institute a global draft instead of letting non U.S./non-Canadian players become eligible to sign with any team as unrestricted free agents at age 16?
Although the current MLB-MLBPA CBA won't expire until December 11, 2011, and although there are probably more significant issues on the table than the trading of
draft picks, perhaps the topic will come up when negotiations heat up in the months ahead. I suspect some MLB teams will push for a rookie wage scale similar to that used in the NBA Draft, where drafted players' salaries are slotted based on where in the draft a player is selected, though a rookie wage scale would probably be opposed vehemently by influential agents (e.g., Scott Boras) who tend to represent top MLB draft picks. Agents, of course, aren't members of a bargaining unit to a CBA, but they nevertheless tend to influence players' views. Still, whether there is the same passion for letting teams trade draft picks remains to be seen. Posted By : Michael McCann
Call for Papers for Fourth Annual Scholarly Colloquium on Intercollegiate Athletics
Message posted on : 2010-06-19 - 19:14:00
Our friend Matt Mitten, who's a law professor at Marquette University Law School and director of the National Sports Law Institute, passes along this call for papers for the NCAA annual convention:
A Call For Papers
“Social Justice in Intercollegiate Sport: A Critical Examination of Racialized, Gendered and Disabled Bodies”
The Fourth Annual Scholarly Colloquium on Intercollegiate Athletics In Conjunction with the NCAA Annual Convention January 12-13, 2011 San Antonio, Texas
The fourth annual Scholarly Colloquium on Intercollegiate Athletics will be held on January 12-13, 2011 in conjunction with the NCAA Annual Convention in San Antonio, Texas. The theme for this year's colloquium is “Social Justice in Intercollegiate Sport: A Critical Examination of Racialized, Gendered, and Disabled Bodies.” The conference will feature keynote speakers, two formal reactions to each keynote, and sessions of refereed papers.
Keynote speakers include: Harry Edwards [Professor Emeritus of Sociology, UC Berkeley], Susan Cahn [Professor of History, SUNY Buffalo], Ted Fay, [Professor of Sport Management, Center for Sport in Society, SUNY-Cortland], Allen Sack [Professor, Institute for Sports Management, University of New Haven].
Other invited speakers include: Pat Griffin [Professor Emerita in Social Justice Education, UMass Amherst], Louis Harrison [Professor, College of Education, UTexas Austin], Albert Mosley [Professor of Philosophy, Smith College], Ellen Staurowsky [Professor of Sport Management & Media, Ithaca College], Terry Todd [Lecturer, College of Education, UTexas Austin], David Wiggins [Professor & Director, School of Recreation, Health & Tourism, George Mason University].
Papers for the refereed papers session should deal closely with issues related to the conference theme of “Social Justice in Intercollegiate Sport.” They may relate to sport in general or to intercollegiate athletics specifically, as long as they are clearly connected to the conference theme of “Social Justice in Intercollegiate Sports.” Papers may highlight scholarship from the sciences, social sciences, economics, humanities, or any number of professional fields that are either directly or indirectly related to intercollegiate athletics. To be considered for the refereed paper sessions, authors most submit a 500-600 word abstract of the proposed paper via e-mail to David Wiggins, dwiggin1@gmu.edu, and copy the abstract submission to Ketra Armstrong, karmstr2@csulb.edu.
The deadline for proposal submission is October 1, 2010. Individuals will be notified of the results of the review process in early November 2010.
Posted By : Michael McCann
What Tiger Woods' Loss of Endorsement Income Means to his Agents
Message posted on : 2010-06-18 - 10:57:00
CNBC's Darren Rovell has a terrific piece looking at what Tiger's loss of endorsement deals has cost his agency, IMG. Unlike commissions on contracts between athletes and teams, which normally carry a 2 to 4% commission, commissions on endorsement deals normally run in the range of 15 to 20 %. Here's an excerpt of Darren's piece:
Tiger Woods' loss of endorsement income cost his management company IMG $4.6 million in fees, according to a confidential document reviewed by CNBC.
The document provides the most comprehensive financial look into the powerful, but private, sports management company in its 50-year history.
IMG, like other agencies, charges its clients between 15 and 20 percent on endorsement deals it secures, so if it lost $4.6 million on Tiger's endorsements, it would mean the golfer himself lost in between $23 million and $30 million in deals last year.
To read the rest, click here. Posted By : Michael McCann
Ray Allen and Whether Shots Hitting the Rim Should be Reviewed by Instant Replay
Message posted on : 2010-06-14 - 10:27:00
Watching the Celtics-Lakers game last night, the topic of instant replay came up. Some background: NBA referees can use instant replay in certain situations, as detailed here:
The NBA instituted instant replay before the start of the 2002-03 season, originally to review period-ending baskets and fouls, and a number of triggers have since been added.
Replay is used for officials to confirm a flagrant foul warranted an ejection, or that players left the bench during an altercation. Referees can now go to the monitor to see if shots or fouls came beyond the 3-point arc, whether they beat the shot clock, or if there was a clock malfunction.
The system was expanded this season to out of bounds possessions in the 2 minutes of regulation or overtime.
Replay wasn't available for a crucial play last night. With 1:05 left to play and the Celtics up 87-82, Ray Allen shot what appeared to be an air ball as the shot clock was about to expire. After Celtics' center Kendrick Perkins grabbed the rebound, the whistle was blown and it looked like the Lakers -- who seemed to have the momentum at that point -- would get the ball back.
Instead, the refs huddled together and determined, without instant replay but with plenty of advocacy from the Celtics and Lakers' respective benches and perhaps the Boston crowd, that the ball actually glanced the rim. The Celtics got the ball back with a fresh 24 seconds on the shot clock and would go on to win the game.
While it's not clear what would have happened had the Lakers gotten the ball back, there seems to be a real possibility that they would have won the game. Kobe was completely dominant in the second half, despite pretty tight defense by Tony Allen, Ray Allen, Paul Pierce, and anyone else the Celtics tried in vain to stop him. From the Lakers' perspective, going back to LA with a 3-2 advantage in the series would seem completely different from going back down 2-3. The call on whether the ball hit the rim, in other words, may have changed the outcome of the series.
One of the difficulties of adopting instant replay is figuring out when it should be used and when it shouldn't, and how to justify the lines of demarcation. If instant replay is allowable for determining whether someone got a shot off before the 24 second clock expired -- which it is under NBA rules -- why isn't it okay to use it to see if a ball hit the rim? Posted By : Michael McCann
Ninth Circuit Ruling in Barry Bonds Prosecution
Message posted on : 2010-06-13 - 16:45:00
Couple days late on this, but here goes. Last Friday, a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed the district court ruling that blood and urine samples seized from BALCO and purportedly belonging to Bonds were not admissible. I was interviewed by KCBS Radio in San Francisco on the ruling. The majority agreed that, absent evidence from Bonds trainer/friend/sycophant Greg Anderson (who refuses to testify) the government lacks admissible evidence linking the samples to Bonds; Anderson's statements to a BALCO employee were inadmissible hearsay. The court rejected arguments that Anderson was speaking as Bonds' agent on the matter of the samples or that Anderson had been given authority to speak about the source of the samples--either of which would have made the statements functionally Bonds' statements and therefore not hearsay. Alternatively, the court rejected the government's argument that the statements could come in under the residual exception to the rules. There was a sharp disagreement between the majority and dissent about how to understand independent contractor status and agency for purposes of the hearsay rules.
The ball is back in the government's court with three options: 1) Try to get en banc re-hearing in the Ninth Circuit, an option that might work, given the high-profile nature of the case; 2) Seek cert before the Supreme Court, incredibly unlikely because the Court does not take cases simply to correct one-off errors; or 3) Go back to the district court and determine whether it can win without the evidence. My guess is prosecutors believe the evidence is significant, which is why they appealed a pre-trial evidentiary ruling. What is not clear is whether they did this because the evidence is so central and essential to the case that they cannot prove the case without it or whether they appealed out of an excess of caution, recognizing that perjury prosecutions are hard to win in the first place, especially against a well-funded and well-represented defendant such as Bonds, thus they need all the evidence they can muster. I don't know the answer to that strategic question. Posted By : Howard Wasserman
MLB players and replay
Message posted on : 2010-06-13 - 14:11:00
According to a poll of 100 Major League players: 77% oppose the use of replay on the base paths, 62 % oppose it on fair/foul calls, and 86 % said Bud Selig was correct not to retroactively award ArmandoGalarraga a perfectgame.
What do we do with this information as we consider the increasing use of replay? Should the players' views receive some consideration and even a certain deference? After all, they have the most directly and immediately on the line with a blown call (despite what fans of the team may believe). My speculation, by the way, is that players accept umpire mistakes because they believe that, on average, the disadvantages from bad calls even out over the course of a long season or even series. In other words, just as many bad calls will go for us as against us, so why change. Posted By : Howard Wasserman
Thoughts on college conference realignment: The Basketball Effects
Message posted on : 2010-06-13 - 08:37:00
Matt Bodie, one of my colleagues at PrawfsBlawg, has some thoughts about conference realignment, arguing that it marks (or should mark, if we all were honest) the end of the pretense of amateurism in college football, the "crashing down" (finally) of the whole system. Worth a read.
An interesting side issue is the effect on, and role of, college basketball. Basketball clearly is in the same boat as football in terms of being essentially professional, but it does not drive the realignment bus and does not take in or spend nearly as much money. College basketball always has at least made a pretense (the loathed Billy Packer notwithstanding) to there being a place at the table for the smaller conferences. But does anyone want to be a basketball-centric conference when football (and its dollars) drives all this?
The school I feel bad for in this is Kansas, which has gotten shafted. It has the top basketball program in the country right now, but not a top football program, so no one wants it (because it also does not add a major television market). Because football and television markets drive the process, Kansas is not attractive to any of of the major conferences (Big ___, SEC, or Pac-___)*, so it is going to end up in the Mountain West, an inferior (at least right now) conference, with hopes and dreams of joining the big boys but having a ways to go. Instead of being a top team in what has been in some recent years the top basketball conference, Kansas risks becoming like Gonzaga or Butler (or, in football, its likely new conference rival, Boise State)--a big fish in a small pond, ripping through an inferior league, but a question mark nationally (unless it takes on some brutal non-conference games).
Any chance that basketball-first schools (the traditional Big East and ACC schools, perhaps) will give up the football money and try to do something to protect their unique basketball-centered interests? And how will that affect the perception of which basketball conferences are "big-time" for NCAA Tournament purposes. Recall that one scenario (not happening yet, but still possible) had the Big Ten raiding some Big East football schools (Pitt, Rutgers, Syracuse) and the SEC raiding some ACC football schools (Miami, Florida State, Virginia Tech).** But that would leave the ACC and Big East as second-tier football conferences, although still great basketball conferences. Is there room for such a thing anymore? Is there room for great basketball-first schools anymore?
* By law, conferences no longer may use numbers in conference names. We are academic institutions--if we form the Pac-10 or Big Ten, there should be only ten teams in each.
** If not swallowing the ACC whole, which now seems unlikely. Posted By : Howard Wasserman
Legal and Political Implications of College Football Conference Changes
Message posted on : 2010-06-11 - 14:55:00
It looks like we'll be seeing some movement with conferences, including the real possibility that Texas and Texas A&M will join the Pac 10 and SEC, respectively.
Some members of Congress are already talking about holding hearings to question and possibly block certain conference changes. The legal power of the federal government to stop changes in conferences is another matter. While they impact the economics (and admissions and fundraising efforts) of colleges, conferences are fundamentally voluntary associations of competing schools for scheduling and promoting games. And they are not etched in stone; their rosters have changed over the years, with schools joining and leaving conferences from time-to-time. The choice of competing schools to collude in a conference (and to not allow other competing schools to join and reap the economic benefits of conference membership) could in theory be seen as problematic with Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade, but it's likely a difficult argument to make (as is discussed by Joseph Morton in the Omaha World-Herald). But when coupled with the topic of the BCS and automatic bids -- a topic of interest to the Justice Department -- perhaps we'll still some hearings on conferences.
Anyway, what would be an ideal conference arrangement of schools? My Vermont Law School colleague and good friend Jason Czarnezki, who played football at the University of Chicago in the late 90s, offers these excellent thoughts in his post College Football & Big Ten Expansion:
The Big Ten wants to expand from 11 teams to 12-16 teams. The Big Ten last expanded in 1991 when Penn State joined. Football, and the revenue that comes with it, drives expansion. The Penn State addition proved very successful. From the beginning I have argued that Big Ten expansion from this point is driven by three schools that the Big Ten would like to add:
(1) Notre Dame
(2) Nebraska
(3) Texas
Notre Name was ironically denied admission to the Big Ten at the turn of the century, and now wants to remain an independent. ND will join the Big Ten only when the Big East dies; though joining the Big Ten, and the accompanying Association of American Universities, would greatly enhance its academic profile.
The Big Ten seems to have landed Nebraska and its storied football tradition. My guess is that the Big Ten still wants Texas. The question is whether continued bad blood between Nebraska and Texas will allow this to happen, and whether Texas can join the Big Ten without Texas A&M (something that Texas politics might forbid). My guess is that this can only occur if Texas A&M goes to the SEC as some reports suggest.
Jim Delaney, commissioner of the Big Ten, is in my guess hoping for a dream scenario where the Big 12 (Colorado, for the Pac-10, and Nebraska, for the Big Ten, have already left) and Big East fall apart, and Texas A&M goes to the SEC. Then the Big Ten will have 14 teams with Notre Dame, Nebraska, and Texas, to go along with national football powers Ohio State, Penn State, and Michigan. The revenue would pour in at that point for cable's Big Ten Network. I question whether the Big Ten can pull this off but I think it's their dream
scenario.
The divisions, setting up a conference championship game, would look like this:
West Division: Texas, Nebraska, Iowa, Minnesota, Wisconsin, Illinois, Northwestern
East Division: Notre Dame, Indiana, Purdue, Michigan, Ohio State, Penn State, Michigan State
Such a strong football conference might also argue to have two automatic BCS bowl qualifiers.
Posted By : Michael McCann
World Series of Boxing: A Strike Out or Home Run for Amateur Boxing?
Message posted on : 2010-06-10 - 21:17:00
Baseball's is the most famous, poker's is one of the most recent ones to gain traction with the viewing public. Now, in September 2010, the “World Series of Boxing” begins throughout the world. What is the “World Series of Boxing”? Well, if all goes according to plan, the World Series of Boxing (hereinafter the “WSB”) will be, according to its official web site, “an annually recurring, global competition featuring franchises in three regional conferences: ASIA, EUROPE, AND THE AMERICAS. Each region will initially be comprised of FOUR CITY-BASED FRANCHISES, and each franchise will field a SQUAD OF 10 BOXERS across FIVE WEIGHT CLASSES designated by AIBA.” Yes, AIBA, the hand that rocks the cradle of international amateur boxing, along with the international sports marketing agency IMG, is doing its part to bring a team element to professional boxing. But that is not the only twist that the WSB is bringing to professional boxing; the salaried participants in these professional boxing team competitions will not only be select professional boxers who competed in the 2008 Olympics, but also some of the top amateur boxers in the world. However, all of the participating amateurs will retain their eligibility to participate in the Olympics. Thus, if the WSB gains traction, it could eventually result in a sea change in the relationship between amateur and professional boxing. A quick analysis of the current rules concerning Olympic eligibility for professional boxing, and the potential implications of allowing amateur boxers jump between the amateur and professional boxing worlds follows...
For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2633/2010-06-10.html Posted By : Paul Stuart Haberman
Boston College's Professional Sports Counseling Panel: Helping Student-Athletes with the Decision to turn Pro
Message posted on : 2010-06-07 - 08:18:00
Good piece by Albert Breer in the Boston Globe on Boston College's Professional Sports Counseling Panel, a BC entity which helps its students-athletes with the challenges and opportunities related to turning pro. No other school has a panel like the one offered at BC; they instead use advisers for individual teams. Breer highlights the excellent work of BC Assistant Dean Warren Zola, who serves as Chairman of the Panel.
Here's an excerpt:
* * *
Boston College won't be mistaken for Southern Cal or Florida as an NFL pipeline. But in player development, the Eagles feel they have a chance to set the standard.
Warren Zola , an assistant dean in the Carroll School of Management at BC, helped organize the school's Professional Sports Counseling Panel five years ago and has served as chairman, a non-paying position, since then.
The idea? Give student-athletes with professional potential in all sports the training to prepare for the next level. Some schools have coaches or officials for specific sports to handle these matters. But Zola says that, to his knowledge, BC is the only one to have an overarching group separate from the individual programs.
“It may be cliche, but it feels like we're doing something good, helping young folks make good decisions, and this is a way for me to stay connected to athletics,'' said Zola, who also teaches sports business and sports law classes.
Zola graduated from Tulane's law school in 1992, and wanting to stay in athletics but not work as an agent, he got a job working in Athletic Operations at BC. With the blessing of then-football coach Tom Coughlin, he was soon helping Pete Kendall, Tom Nalen, Glenn Foley, and Mike Mamula prepare for the NFL.
When the panel launched in 2005, Zola's goals were to make sure athletes knew the rules and could navigate the process while preserving their eligibility, and to educate them on picking an agent.
Zola has helped big-timers like Matt Ryan, B.J. Raji, and Jared Dudley, but also sees his presence as vital to the rookie free agent or female basketball player looking to find a contract in Europe.
“Matt Ryan will have no problem getting the right agent,'' he said. “It's the others where you have to make sure they understand what's critical.''
* * *
To read the rest, click here. Posted By : Michael McCann
Is it just about perfection?
Message posted on : 2010-06-03 - 21:31:00
A question to those clambering for Bud Selig to reverse the call and award Galarraga a perfect game: Is it just about the perfect game, that unique historical rarity? What if it had been an ordinary no-hitter? A one-hitter? What about a shut-out (where the outcome was otherwise unaffected)?
I am trying to figure out why this would not have the commissioner reviewing all sorts of calls post hoc (although Mitch Berman's suggestion could limit this problem). I just am not exorcised about the "correctness" issue, at least where sports are concerned. I prefer finality and redoing all sorts of things once the game ends. Posted By : Howard Wasserman
Perfection is in the Eye of the Beholder
Message posted on : 2010-06-03 - 18:35:00
So what should MLB have done now that Bud Selig has ruled that the call cannot be changed? Umpire Jim Joyce admits he blew the call. The next batter grounded out. What's the harm in reversing what was clearly the wrong decision and giving Armando Gallarraga the perfect game he pitched on Wednesday night?
For those of you outside Chicago and Philadelphia who didn't realize the NHL Stanley Cup finals are being played magnificently, compare what happened in the last game almost at the same time as the goings on in Detroit. The Flyers shot the puck on net and a Blackhawk flicked it out before the officials could see if the puck had crossed the line. Play continued for ninety seconds until an icing call. Then after a look at the replay, the officials declared the goal counted. The ninety seconds were put back on the clock. Even if the Blackhawks had scored a goal during that time, it would have been erased.
Which result is more just, to use the legal term for the purposes of this Blog?
As someone who is Flyered Up, I was thrilled that the right call was made in the hockey game. Playoff hockey is such a brutal game and the players seem to give more of themselves in that sport than in any other, well past the point of exhaustion, performing feats on ice that on solid ground would be remarkable.
But baseball is the most human of games. Players don't commit penalties or make turnovers, they commit errors. The best hitters fail two thirds of the time. It is a sport that reflects the wonder of human frailty. As the biblical texts teach us, even the angels were jealous of humans because their free will allowed them to make wrong decisions, which made the right ones so much richer.
The way Gallarraga and Joyce have conducted themselves since the one hitter shows how perfect human beings, and baseball, can be. Posted By : Alan C. Milstein
Against replay and commissioner revision
Message posted on : 2010-06-03 - 15:33:00
OK, I guess I have to weigh-in in part on this. Mike captures some of the arguments in favor of replay and I have made my views known in the past. The WSJ Law Blog picked up our dispute. And here is a nice summary (with a bent towards opposing replay, I sense) from Ted Frank at Point of Law. Josh Levin goes farther to suggest ways that umpires can be eliminated in substantial part through some technology, including a system of making video responsible for the initial call rather than for review.
This game does not change my mind about replay generally and specifically in baseball. I still am not convinced that replay will across-the-board increase accuracy. And, in any event, I continue to believe that the efficiency and workability concerns outweigh any increased accuracy. And I just am not willing to give up on the human side of it. If that makes me old-fashioned or tradition-bound, so be it. In any event, I will hide behind the argument from Fred Schauer and Richard Zeckhauser about the danger to making rules (or, in this case, changing my mind about policy) based on a specific, unique case, which is necessarily skewing as to the larger problem. This is a classic example of that--one vivid story likely will drive major changes to replay.
Instead, let me talk about the question (mentioned in the WSJ post) of whether Bud Selig should step in to undo the call and award Galarraga a perfect game, to which I say no. The commissioner does not (and I believe should not) exercise power to overturn a particular call in a particular game and there is no instance of the commissioner (or a league president) ever overturning a particular call. The commissioner/league president review power always has been limited to matters of interpretation of the rule (such as the Pine Tar Game in 1983), not its application. And, as Ted Frank notes, MLB will not overturn an erroneous interpretation if it would not affect the outcome. [Update: Selig announced he will not reverse the call, but will look into the umpiring system and, oh no, expanded use of replay.]
There also is a danger to allowing this one unique case to over-determine the question of post-hoc revision of calls. Is it so different that the blown call occurred on the 27th out rather than the 26th? How about on the 1st out--Suppose (as I propose in a comment on Mike's post) the blown call had occurred with the lead-off hitter, Galarraga then picked him off and proceeded to retire the next 26 batters. Or suppose that Batter # 27 took what replays all showed unquestionably show (and the plate umpire later admits) was strike 3 but was called a ball, then got a base hit on the very next pitch--should the commissioner be able to go back and say the batter actually struck out? None of these situations are, it seems to me, different than what we actually have--there would have been a perfect game but for the blown call.
Finally, it is interesting that this has become the lightning rod for replay, because unlike other historically "wrong" calls (see Denkinger, Don) this one did not affect the outcome of the game, but only a historical footnote.
By the way, I would have been in favor of the umpires huddling on the play and overruling the call at the time. I am not sure if the rules allow it in that situation, but it seems appropriate there.
Further Update: Mitch Berman of Texas (a
co-panelist on my "Judges as Umpires panel who is working on a book about sports/law links) makes the following interesting point:
[I]t's rare that a call can be corrected without having either to make contestable counterfactual judgments or to replay the game forward from the point of correction. The latter, of course, is what had to happen in the pine tar game. But in this most recent fiasco, the miscall can be corrected and everything all wrapped up without further ado.
Indeed, I'm tempted by the following proposal: allow the C'mish to reverse mistaken factual determinations when (1) the call was clearly erroneous; and (2) correction would require neither counterfactual judgment nor re-play. Those two conditions are likely to obtain very rarely. But when they do, why not correct what's correctable?
Posted By : Howard Wasserman
Armando Galaragga and the Need for Instant Replay in Baseball
Message posted on : 2010-06-03 - 01:03:00
On Wednesday night, with just one out to go in the game, Tigers pitcher Armando Galarraga was wrongly denied a perfect game on a very bad call by umpire Jim Joyce. Here's Tom Verducci's account for SI.com:
Joyce happened to be working first base Wednesday night in Detroit for the game between the Tigers and the Indians when infamy did not just tap him on the shoulder, it slapped him upside the head. Tigers pitcher Armando Galarraga had just thrown the 21st perfect game in baseball history, and a ridiculous third perfecto inside of four weeks, when first baseman Miguel Cabrera threw to him covering first base on a grounder by Jason Donald for the 27th out. Cabrera celebrated. Only one thing was missing.
Jim Joyce called Donald safe.
There is no polite way to say this: Joyce blew the call. Galarraga caught the ball in plenty of time, even if it wedged precariously in the webbing of his glove, and scraped the base, even if inelegantly, with his foot. Immortal fame was his.
Jim Joyce took it away. He called Donald safe. No sign that Galarraga juggled the ball. No sign that he missed the base. Just safe. Pure and simple safe.
Umpires miss calls. It happens. Nobody feels worse when an umpire misses a call than the umpire himself. They are proud men who strive for a 100 percent success rate and are bound to be disappointed. Upon seeing a replay, Joyce was crushed.
"I just cost that kid a perfect game," the umpired admitted afterward. "I thought he beat the throw. I was convinced he beat the throw, until I saw the replay."
Give credit to Joyce for admitting that he made a bad call and taking responsibility. He also apologized personally to Galarraga.
It's encouraging when someone admits a mistake and owns up to it, but why should the mistake even stand? Why isn't there instant replay for extremely close calls, especially when fans get to watch those replays, in some cases over-and-over again? And especially when the person who made the mistake clearly would have corrected it had he been able?
Some might argue that instant replay would extend the time of already-too-long games. That is probably true, but if managers were limited to two or three replay challenges per game, presumably the impact on the time would not be too significant. Also, isn't accuracy and the fairness it promotes more important than whether games are five minutes longer?
Others place value in the tradition -- umpires haven't been able to use instant replay for calls and we should honor that tradition. First off, that isn't true, as in 2008, MLB umpires allowed for umpires to use instant replay to review whether fly balls are foul or home runs. But more important, who cares about a tradition if contemporary technology offers a better and fairer system? After-all, if instant replay technology had been around when baseball was created and developed, isn't there a good chance that it would have been adopted?
Opponents to instant replay have other reasons, and for a great defense of their position, check out Howard's 2007 piece
titled "Against Instant Replay". Maybe he'll change his mind after watching the video above, though.
So do you support MLB adopting instant replay? If so, how would it work?
Posted By : Michael McCann
American Needle v. NFL: The Broader Aftermath
Message posted on : 2010-06-02 - 17:42:00
With more than a week having passed since the Supreme Court's ruling in American Needle v. Nat'l Football League, discussion about the case has begun to shift from what the ruling means for American Needle Inc. to what it means for other sports-related businesses.
Here are four sources that begin to address that issue:
First, in an editorial published in this week's Sports Business Journal, I discuss the impact of the American Needle ruling on labor relations, ticket pricing, and the way that investors will likely structure new professional sports leagues (here).
Second, in an interview with Ripten Magazine, I discuss the impact of the American Needle ruling on the football video game market and the NFL's exclusive licensing deal with EA Sports (here).
Third, in traditional law review format, University of Iowa's esteemed Ben V. and Dorothy Willie Professor of Law Herbert J. Hovenkamp discusses the impact of American Needle on the credit card, hospital, and real estate industries (here).
Finally, over on the Legal Talk Network, attorneys and co-hosts J. Craig Williams and Bob Ambrogi interview both Michael McCann and me about the effects of the American Needle case, via podcast (here).
With the NBA's season at long last coming to an end some time soon, the buzz surrounding this year's free agent class grows louder. Miami star Dwyane Wade has turned up the heat by reportedly scheduling a "summit" of select free agents, including Lebron James, Chris Bosch, and Joe Johnson. Although the NBA apparently has no objections to such comments, some sports journalists have already called the planned meeting "collusion."
Is it legal for players to meet together to discuss their plans for free agency? It seems fairly obvious that were management to meet to discuss potential offers to free agents that would raise antitrust concerns. Should the law treat potential player "collusion" differently?
It likely depends on the nature of the conversations to be had at the meeting. If players discuss Posted By : Geoffrey Rapp
Clip, Clip, Baby!
Message posted on : 2010-05-30 - 18:42:00
The intersection between Sports and Bioethics has grown geometrically since I argued on behalf of Eddy Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of his employment. ESPN the Magazine recently devoted almost an entire issue to how genetic research might be changing the future of sports. Now Summer Johnson in Blog.Biothics.net reports on the rather uncomfortable link between March Madness and vasectomies. Apparently, there is a high incidence of men choosing to have this elective surgery during tournament time. What better excuse to sit for twelve hours on the couch than a doctor's orders to rest with a cold compress between your legs. Indeed, as Summer notes, some doctors at The Oregon Urology Clinic market the procedure with Dick Vitale advising prospective patients to "take care of the equipment and lower your seed for the tourney.” Ouch.
Next year, the NCAA plans to expand the tournament to 68 teams, maybe even to 96, adding perhaps another weekend to the event. We thought originally the motivation was money since that seems to be the driving force behind many of the decisions of the Tsars of amateur athletics. Now we know it's zero population growth. Posted By : Alan C. Milstein
Cooperstown Symposium on Baseball and American Culture
Message posted on : 2010-05-30 - 15:51:00
The 2010 Cooperstown Symposium on Baseball and American Culture will be held next week, June 2-4, at the National Baseball Hall of Fame in Cooperstown, for those of you who find yourselves in upstate New York. The program is here. I presented here a few years ago and may try to do it again next spring (maybe more on the judge/umpire thing); it is a great time. Because everyone speaks the common language of baseball, the conference is truly multi-disciplined; we all are able to talk to one another. Plus, the last night includes a barbecue and a game of town ball (an early predecessor of what we know as baseball). Posted By : Howard Wasserman
Baseball and Law in Chicago
Message posted on : 2010-05-30 - 15:18:00
That was a great couple days in Chicago for the Law and Society Association Annual Meeting. I wish I could have stayed an extra day or two, but family calls. Otherwise, I was able to run along the lake, eat Chicago-style pizza, and spend an almost-perfect afternoon at the Place Where God Intended Baseball To Be Played (even if the Cubs lost because, well, they suck).
Our roundtable, Judges as Umpires, Umpires as Judges: Rethinking the Metaphor, went very well. We had a very good audience (particularly considering it was at 8:15 a.m. the first day of the conference) and a good conversation about sports, the nature of rules, and the nature of judging and adjudication.
I hope we might publish an edited/annotated transcript of the conversation.
But I do need a judge's ruling on this one. At the game on Friday, I saw a number of t-shirts reading "[Opposing Latino player] does my lawn," with an outline of a person in a straw hat pushing a lawnmower. So, for example, I saw a shirt in Cardinals colors that said "Zambrano does my lawn" and one in Cubs colors that said "Ozzie Guillen does my lawn." Is there any way of understanding those shirts that is not obnoxious and insensitive, if not outright offensive? Posted By : Howard Wasserman
New Sports Illustrated Column on NFL Network and Cable Industry
Message posted on : 2010-05-30 - 08:13:00
I had the Viewpoint Column on SI.com a few days ago, and my piece centered on the consumer and antitrust implications of the legal and business battles between the NFL and major cable companies. Here's an excerpt:
* * *
Some of these fans can still watch those contests because every NFL Network game that sells out -- and all 32 previous ones were sold out -- is simultaneously broadcast on free, over-the-air TV in the primary market of the home and away teams. But those fans who live in non-primary markets (generally defined as those living outside a 75-mile radius of the team's stadium) are out of luck. Their only option, should it be available to them, would be to switch from a cable provider to a satellite provider that offers NFLN. For a variety of reasons, possibly including convenience, cost and reliability, those fans may prefer to keep their cable provider.
There are about 56.3 million households with NFLN, a significant but underwhelming number when considering that the two-year-old MLB Network already has 55.3 million households, while the three-year old NHL Network, which offers coverage of a considerably less popular league than the NFL, has approximately 34 million. The NFL, of course, would like more homes to have its channel, which the league spent in excess of $100 million developing. But the league has encountered difficulties in convincing cable companies to include NFLN in its channel packages, particularly basic packages. The major holdup has been over price.
* * *
The NFL can offer several responses to those lines of critique. For one, games aired on NFLN are broadcast nationally and thus have a wider viewership than regionally-televised games aired on free, over-the-air networks. The NFL can also highlight that while games aired on NFLN require payment to a cable or satellite provider, they are simultaneously broadcast on free, over-the-air networks (provided the games are sold out) in the home and away teams' primary media markets.
Had the Supreme Court decided American Needle v. NFL in favor of the NFL earlier this week, the league might have received antitrust immunity for NFLN. But the Supreme Court held that the NFL and its teams are not exempt from Section 1 for purposes of apparel sales and, by implication, other types of business endeavors. The NFL and its teams, along with the NBA, MLB and NHL and their respective teams, do enjoy a limited exemption from Section 1 for sports broadcasting, but it is similarly unhelpful to the NFL in this context. Through the Sports Broadcasting Act of 1961, leagues are exempt from Section 1 scrutiny of their national TV contracts with network providers of free, over-the-air games. Unfortunately for the NFL, the exemption does not extend to contracts between leagues and cable and satellite stations that are only available for a charge, meaning NFLN can be reviewed under Section 1.
New Sports Illustrated Column on Implications of Floyd Landis' Allegations against Lance Armstrong
Message posted on : 2010-05-27 - 13:16:00
I have a new column on SI.com on the potential legal impact of allegations by Floyd Landis that Lance Armstrong engaged in doping and possibly encouraged and facilitated other riders to dope. Here's an excerpt:
Why would law enforcement authorities listen to someone of questionable character like Landis?
For one, Landis would be breaking the law by knowingly lying to federal government officials.
Second, sometimes persons with checkered pasts and suspicious motivations are telling the truth and sometimes they are the only persons willing to tell the truth. Just recall when Jose Canseco was widely ridiculed for claims in his book, Juiced Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, that Mark McGwire, Jason Giambi and other players used steroids. While Canseco's colorful past and financial motivations for book sales gave legitimate reason to question the accusations, he appears to have been telling the truth. Perhaps if he had been taken more seriously earlier in time, the steroid scandal could have been addressed more effectively.
In addition, it is the job of law enforcement and other investigatory officials, including special agent Jeff Novitzky, to assess the credibility of Landis and how well his claims would withstand courtroom scrutiny. Clearly, if Landis is the central accuser of Armstrong, Armstrong could attack Landis on multiple grounds. But should the government conclude that Armstrong broke the law, it will try to find additional sources of evidence and testimony that support Landis's claims but lack his vulnerabilities.
* * *
What is the legal significance of USPS sponsoring Armstrong's team?
In all likelihood, the sponsorship by USPS, an independent agency within the Executive Branch of the federal government, will not impact the legal duties of Armstrong or the team. Sponsorship of a racing team probably does not convert the team into an entity that acts on behalf of the government, nor is it likely to turn decision-makers of the team into government agents. Therefore, even though Armstrong was a part-owner and principal decision-maker for Tailwind Sports, which managed the USPS team and received the sponsorship money, his main legal concerns probably center on accusations of illegal distribution.
It is worth noting, however, the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement, 18 U.S.C. §§ 648. The statute prohibits custodians of public funds from misusing those funds and carries up to a 10-year prison sentence. The fact that USPS does not draw from taxpayer funds may not help Armstrong, since the statute does not distinguish taxpayer public funds from non-taxpayer public funds.
Still, whether Armstrong's individual control of the funds would be sufficient to trigger scrutiny, and whether promotional public funds fall within the purview of the statute are complicating factors. At this stage, therefore, it seems unlikely that the USPS sponsorship will impact the legal analysis.
Law and Society: Judges as Umpires, Umpires as Judges
Message posted on : 2010-05-26 - 07:16:00
For those of you attending Law and Society this weekend: On Thursday morning at 8:15, I will be doing a roundtable discussion called Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. We will explore the silly judge-as-umpire metaphor, instant replay, the nature of judging and sports officiating, and other links between judging and sports. The panel includes moderator Mark Graber (Maryland), Mitchell Berman (Texas), Chad Oldfather (Marquette), Aaron Zelinksy (recent Yale grad and occasional guest blogger here), and me.
It should be a great discussion and I hope any early-risers will stop by. I hope to post the audio here next week.
Plus, don't forget Happy Hour on Thursday evening. And on Friday afternoon I can be found at Wrigley Field for the first time since 2001--far too long. Posted By : Howard Wasserman
Sports Illustrated column on American Needle v. NFL decision
Message posted on : 2010-05-24 - 15:56:00
I have an SI.com column on today's big decision. Here's an excerpt:
* * *
The NFL's argument encountered significant resistance during oral arguments on Jan. 13. Neither the conservative nor liberal justices seemed to buy the NFL's reasoning, which was inconsistent with precedent and also of questionable logic.
Bear in mind, NFL teams do not necessarily collaborate on licensing contracts; in fact, prior to 1963, they entered into their own licensing contracts. They have also sued each other over this very issue. During the 1990s, Dallas Cowboys merchandise sales far eclipsed those of other teams. Cowboys owner Jerry Jones, however, had to equally share that revenue with every other team owner. In 1995, Jones brought a lawsuit against his fellow owners seeking independence to enter into his own licensing contracts. In response, those owners countersued him. While they would eventually reach a settlement, Jones and other NFL owners certainly did not seem like a single entity at that time.
* * *
. . . the decision sends a message to similar professional sports leagues, namely the NBA and NHL, that their own aspirations for single entity recognition are just as unlikely to materialize -- at least through the legal system. Indeed, if leagues would like to avoid Section 1 scrutiny, they can still turn to Congress for Section 1 exemptions. They have a track record there of some success: the leagues persuaded Congress and President Kennedy in 1961 to receive a Section 1 exemption for their national TV contracts. Perhaps they can make their case in Congress for other types of Section 1 exemptions, but it's a case that won't go through the Supreme Court.
* * *
To read the rest, click here. To read Marc and Nathaniel's posts click here and here. I'm sure there will be plenty of other commentaries.
Posted By : Michael McCann
More on the Supreme Court's Ruling in American Needle v. NFL
Message posted on : 2010-05-24 - 14:37:00
As Nathaniel Grow just posted, the Supreme Court ruled today 9-0 to overturn the Seventh Circuit's ruling in American Needle v. Nat'l Football League, which had held that the single-entity status of a sports league should be viewed "one league at a time" and "one facet at a time."
In a concise, 23-page opinion (PDF), the Court explained that the NFL is not a single entity because “the NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action.”
This reasoning is similar to that advanced by Michael McCann, Gabe Feldman and myself in recent law review articles (see here, here, and here).
The court further stated that "[i]f the fact that potential competitors shared profits or losses from a venture meant the venture was immune from [Section 1 of the Sherman Act], then any cartel could avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing product."
I have posted a full discussion of this ruling and its implications on Above the Law, here.
As far as the case's likely outcome upon remand, I note:
[W]hether American Needle will ultimately prevail on the merits remains far from settled. As Rutgers School of Law-Camden professor Michael Carrier noted in a recent law review article, defendants have won 221 of the past 222 cases that have involved a court's final determination under the Rule of Reason (link to Professor Carrier's article)
In addition, even if the NFL clubs' licensing practices have led to some anti-competitive effects, league-wide trademark licensing might also produce some pro-competitive benefits by reducing the transaction costs of obtaining licenses to use all club logos on a single piece of merchandise (link to my law review article).
Posted By : Marc Edelman
Breaking News: Supreme Court Unanimously Reverses 7th Circuit in American Needle
Message posted on : 2010-05-24 - 10:28:00
The United States Supreme Court released a unanimous opinion this morning reversing the Seventh Circuit's decision in American Needle v. NFL. The opinion is available here. Posted By : Nathaniel Grow
On Floyd Landis: What Makes Sports and Sports Law Interesting
Message posted on : 2010-05-22 - 13:24:00
What makes Sports and Sports Law so interesting is how its controversies frequently serve as a microscope into the human condition. Take the case of Floyd Landis. The cyclist from Amish country in Pennsylvania's version of the Bible belt had won the 2006 Tour de France, returned as a small town hero, and then was stripped of his title after accusations of doping. Offering his roots as the best evidence of his integrity, Landis spent hundreds of thousands of dollars contesting the accusations, accusing the French officials of anti-American bias: “All day long I heard him shout so loud, crying out that he was framed.”
Now he admits everything, and accuses everyone else in the sport of doing the same.
I almost always get fooled by these folks. Whether it's Mark McGuire on Sixty Minutes or Bill Clinton pointing his finger denying he had sex with “that woman,” or Colin Powell showing us where the WMDs are hidden, or Justice Clarence Thomas claiming Anita Hill's accusations were a “high tech lynching.” I just can't imagine how someone has the chutzpah to look millions straight in the eye and flat out lie. (Larry Craig I never believed.) What kind of skill does it take to be so convincing when inside they must know they will eventually be hoisted by their proverbial own petards? And when will I learn that human beings are so talented at being deceitful? Posted By : Alan C. Milstein
New Sports Illustrated Column on Implications of Dr. Anthony Galea Prosecution
Message posted on : 2010-05-20 - 19:11:00
I have a new SI.com column on the charging in both U.S. and Canadian courts of Dr. Anthony Galea, a Canadian doctor who is alleged to have provided illegal performance-enhancing drugs to many star athletes in the U.S. Here is an excerpt:
* * *
In a way, though, Galea isn't the only person on trial. Athletes who have received treatment by Galea have reason to worry that their names will be publicly revealed. Implication in the case could prove disastrous. For one, it could trigger sanction by athletes' teams and leagues in the form of suspensions or fines. Companies with which athletes have lucrative marketing and endorsement deals could also void or suspend contracts based on those contracts' morals clauses.
Most concerning, implicated athletes could themselves be criminally charged with purchasing and using illegal drugs. Granted, such athletes might be able to minimize their exposure to criminal sanction through proffer agreements, which, if offered by prosecutors, would essentially entail the athletes telling the authorities what they know about Galea in exchange for not being prosecuted. Such agreements, however, would not protect those athletes from punishments by leagues and endorsed companies.
* * *
Athletes could also be exposed in the event that Galea enters into a plea deal with prosecutors. Such a deal would be more likely if the evidence against him proves overwhelming and airtight. Of additional concern to athletes, a high-profile case of this kind is susceptible to leaks. While prosecutors have a duty to keep protected information confidential, leaks have a way of happening.
'Spygate' Class Action Suit Dismissed as Third Circuit Rejects Ticketholders' Lack of 'Honesty' Claim
Message posted on : 2010-05-20 - 11:35:00
A group of New York Jets' season ticketholders lost their attempt to claim damages for the New England Patriots secret videotaping of the Jet's defensive calls during the 8 games played at Giants' Stadium from 2000-2007. Citing the fact that "honesty" is not a cause of action for a ticketholder who merely has a license to "enter" the stadium attend a game, the U.S. Court of Appeals for the Third Circuit, dismissed the claim, affirming the ruling of a lower court. For my prior article, click here.
The ruling in Mayer v. Belichick is not surprising, but the legal analysis provides some interesting insights. Although the panel, in a unanimous opinion by Judge Robert E. Cowan, ultimately concluded that no damages can be ascertained from the suit, the discussion focuses far more on the nature of a ticket license, rather than damages. Although he notes that the case is unusual and possibly an case of first impression, his opinion, joined by Judges D. Michael Fisher and Gene E. K. Pratter, weave a fascinating interplay with other suits by ticketholders and the nature of a sports ticket license.
Noting that the complaint failed to state a "legally cognizable protected right, interest or injury" warranting dismissal under FRCP 12(b), the court did display trepidations about unfettered powers of licensors in controlling and limiting rights of ticketholders. "Courts all over the country have struggled to deal with litigation arising out of the often complicated ticket arrangements between teams and their fans," the opinion noted, adding "ticketholders may have legitimate reasons to be upset at the manner in which they are treated." Judge Cowan cited a series of cases involving claims for poor performance and rules violations as closely analogous to this case. In two specific cases (one from the 7th Circuit and the other from a New York appellate court, the conclusions pointed to the limiting language of ticket as providing only entry to the race and nothing else. In a pithy quote, the panel used the language of the 7th circuit, stating that if fans are not happy with the [Chicago] Cubs, they can "head south to Comiskey Park" and watch the White Sox. Additionally, he added, with some justification, that permitting this lawsuit could permit suits by ticketholders over "blown calls" and "improper acts of teams, coaches, referees, and others."
Although the panel noted the lack of damages, it focused more on the scope of the license. I think that if Mayer et al were able to show damages (say, from contract fraud or business torts), the result would be the same. True, determining actual damages without a trial would be highly speculative, but I think that the lack of damages was a side issue.
That raises the question of the lawsuit's viability if the license was more open-ended. Say, it permitted entry to the facility and provided a "a professionally-played match" (of course, a team would never do this, but worth a thought). But what about legislation? What if a state passed a "Sportsticketholder Protection Act" prohibiting "unduly" limited licenses on tickets as unconscionable and mandates that the event must be of "reasonable quality commensurate in the sport." That would make some plaintiffs' lawyers salivate.
The Brian Cushing Revote: Defending the Associated Press
Message posted on : 2010-05-17 - 14:38:00
Last week, Brian Cushing became the first player in NFL history to win the Associated Press Defensive Rookie of the Year Award...twice. Cushing won the award back in January with 39 of the possible 50 votes, but the AP called for a revote after it was recently disclosed that Cushing had tested positive at the beginning of the NFL season for hCG, a fertility drug banned by NFL Policy on Anabolic Steroids and Related Substances (the same drug that led to Manny Ramirez's 50-game suspension by MLB). After the revote, Cushing won the award again, this time with a total of 18 votes.
The revote has caused quite a stir and raises a lot of interesting issues: Why was Cushing allowed to play for the entire season after he tested positive? Is the NFL drug policy ineffective? Was Cushing's defiant—and, at times, unusual— denial the best public relations move? What is http://profootballtalk.nbcsports.com/2010/05/16/the-last-word-possibly-on-the-cushing-case/? Should the AP have held a revote? Should Cushing have been disqualified from the revote? Why did 18 members of the media (the ”Cushing 18”) re-vote for Cushing? Why did one voter change his vote to Cushing in the revote? Did the Cushing 18 send the wrong message if they voted for Cushing as a protest against the AP's decision to hold a revote?
Much of the discussion has focused on criticizing Cushing, the NFL, the AP, and the Cushing 18, and I do not want to pile on these attacks. Instead, over at the Huffington Post, I have a new column up that defends the AP's decision to hold a revote. Later in the week, I will have a post up defending the NFL and its drug policy. Here's an excerpt of the defense of the AP:
Why the opposition to allowing a revote to strip a player of an award when we discover--well after the season has ended--that the player achieved the award while using a banned substance? Is this really any different than the International Olympic Committee ("IOC") stripping an athlete of a medal when it discovers--well after the games have ended--that the athlete was doping during the competition? Or the NCAA taking away wins or national championships from a team when it discovers--well after the season has ended--that one of the players on the team was ineligible? *********** Will this precedent open the door to re-votes in the future? Perhaps, but why is that a bad thing? If the concern is that we'll never have any finality, then we can institute a statute of limitations--all awards are final unless challenged within 3 years. But, don't we want the ability to strip athletes of awards and achievements if we later learn that they earned them while using performance-enhancing (or related) substances? The AP's process may not have been perfect, but we can protest an imperfect process in ways that don't honor those who use banned substances.
Nice interview by The Sports Commentary of sports lawyer Jay Reisinger, who has represented Andy Pettitte and Sammy Sosa, among other professional athletes, and who's recently started a new blog, with an emphasis on sports law.
Here's an excerpt of Jay's interview:
With respect to a contract dispute, it is important to convey a message of “fairness” with respect to an athlete's salary requests. In almost every case, athletes are only seeking to be paid fairly within a sport's salary structure. In this regard, athletes are just like anyone else in the job market. People in other professions want to be paid in line with similarly situated employees, just as athletes do. It is important for an athlete's representative to softly convey this message.
To read the rest, click here. Posted By : Michael McCann
Can Bud Selig invoke Best Interests o the Game Clause to Seize Control of Texas Rangers?
Message posted on : 2010-05-13 - 10:23:00
The basic issue here is that Major League Baseball seems to want a prospective ownership group led by Nolan Ryan and Attorney Chuck Greenberg to purchase the Rangers, which have been owned by Tom Hicks (who last year defaulted $525 million in loans) and a group of lenders, but Hicks et al., are opposed to the sale.
Could MLB sidestep Hicks and the lenders? Zach Lowe of The American Lawyer considers that in a new piece. Here's an excerpt:
* * *
If the Phoenix Coyotes bankruptcy was the first major test of whether business interests and courts can override the power of professional sports leagues, the sale of the Texas Rangers to a consortium headed by a Pepper Hamilton partner is shaping up to be an even more dramatic sequel.
* * *
The vote to reject the Greenberg deal has set up a possible mega-clash between the lenders and Major League Baseball, which is being advised by Jordan Yarett of Paul, Weiss, Rifkind, Wharton & Garrison. (Yarett declined to comment today). Selig recently sent a letter to the lenders in which he threatened to invoke a rarely-used rule allowing him to take extreme steps in the "best interests of baseball." Among the possible steps: Selig could seize the Rangers, invalidate the creditors' liens on Hicks and hand the team over to the Greenberg group for the agreed-upon price, the Sports Business Journal reports. Selig has used the "best interests" clause in an ownership transition before--in 2001, when MLB purchased the Montreal Expos as part of a complicated series of deals involving three teams. (The league eventually moved the Expos to Washington.)
And if Selig uses this option? The lenders are prepared to sue and file an involuntary bankruptcy on behalf of the Rangers, the SBJ reports. The documents are prepared already, the story says.
* * *
"I think Major League Baseball has a preferred set of owners, and that purchase price isn't the only consideration," says Michael McCann, a professor at Vermont Law School who specializes in sports law and contributes often to Sports Illustrated. McCann says he would expect creditors to pursue a court order temporarily barring any transfer of ownership if Selig does invoke the "best interests" clause.
* * *
To read the rest, click here. For additional coverage, see Daniel Kaplan's commentaries in the Sports Business Journal. Posted By : Michael McCann
DC Bar Hosts "Collective Bargaining in the Sports Industry in 2010"
Message posted on : 2010-05-13 - 09:36:00
If you're in the D.C. area, there will be a terrific sports law event on Thursday May 20 at the Nationals Park hosted by the D.C. Bar:
The Arts, Entertainment, Media, and Sports Law Section In Co-sponsorship with the Labor and Employment Law Section and the Litigation Section Presents an Evening Program
Collective Bargaining in the Sports Industry in 2010: An Evening to Appreciate, Debate, Discuss, and Enjoy All Things Baseball
A panel of experts from the Commissioner's Office, the Players' Association, and the World Umpires Association will discuss labor law and collective bargaining and the outlook for the national pastime as the players' collective bargaining agreement is set to expire in 2011. Afterwards, attendees and panel members are invited to attend the game between the Washington Nationals and the New York Mets.
Date: Thursday, May 20, 2010
Time: 5:15 p.m. - Panel ends at 7:00 p.m., game begins at 7:05 p.m.
Location: Nationals Park, 1500 South Capitol Street, SE, Washington, DC 20003 – Navy Yard Metro Station
Speakers:
Steve Gonzalez, Counsel – Labor Relations, Major League Baseball
Dan Halem, Senior Vice President and General Counsel, Labor – Major League Baseball
Brian Lam, General Counsel, World Umpires Association
Dave Prouty, Chief Labor Counsel, Major League Baseball Players Association
Moderator:
Dan Kaufman, Vice President & Counsel, Perennial Sports and Entertainment
Toregister for this program or for aprintable registration form,please Click Here
According to Black's Law Dictionary, causation can be defined as the act whereby an effect is produced.
Lebron is the best player in the NBA.
Posted By : Michael McCann
More on Justice Department's Inquiry into One-Year Renewable Athletic Scholarships
Message posted on : 2010-05-11 - 16:30:00
A couple of days ago, we blogged about the report by Libby Sander of Chronicle of Higher Ed on the Justice Department investigating the NCAA's rule on one-year renewable scholarships for student-athletes. Providing additional commentary and perspective, David Moltz and Doug Lederman of Insider Higher Ed have a story titled "Are Athletic Scholarships Fair?". They interviewed several persons including me for their story. Here are some excerpts:
* * *
Legal experts have relatively little to go on in interpreting what the Justice Department may be after. But to the extent they are looking at the NCAA's scholarship policies through an antitrust prism, the sorts of questions they are likely to be asking are the following: Do colleges, acting as a group, impede competition by forcing one another to offer athletic scholarships in this manner? To put it another (potentially more controversial) way, are colleges essentially fixing the price of what they give athletes for their services?
"Maybe if there was no NCAA rule for one-year scholarships, some colleges would offer four-year scholarships instead,” said Michael McCann, a professor at Vermont Law School and legal analyst for Sports Illustrated. “If a college is competing for a player, then that could be an appealing thing. From an athletic director's point of view, a college might not have the budget to do this. But, if it were a free market, then who knows what they would do.”
* * *
“Some of the government interest in college athletes has been in issues around the periphery,” said Ramogi Huma, president of the National College Players Association. “There's a laundry list of things that could show how the NCAA breaks antitrust laws, but this one-year scholarship rule is at the core of how players are taken advantage of. I'm pleased to see this issue be taken up by the Department of Justice.”
Most prospective athletes, Huma argues, are unaware that the athletically related scholarships being offered to them are only for one year and that renewal can be denied for any number of reasons, even if they remain in good academic standing.
* * *
“Most faculty also have the mis-impression that these athletic scholarships are for four years,” said Ken Struckmeyer, co-chair of the Coalition on Intercollegiate Athletics and a professor of horticulture and landscape architecture at Washington State University. “We all assume it would allow them to finish their academic degree, but that's not always the case.”
Sports Law and Elena Kagan's Nomination by President Obama to Supreme Court
Message posted on : 2010-05-10 - 09:30:00
Congratulations to Solicitor General and former Harvard Law School dean Elena Kagan on her forthcoming nomination by President Obama to become an associate justice of the United States Supreme Court. If confirmed by the U.S. Senate, she will fill the position of retiring Justice John Paul Stevens.
While there isn't a particularly compelling sports or sports law angle to this nomination (unlike with Justice Sotomayor), it is worth noting that Dean Kagan was supportive of sports law while at Harvard Law School--including by rightfully honoring Professor Paul Weiler for his extraordinary achievements in sports law, by bringing in distinguished sports lawyer and scholar Peter Carfagna to teach sports law, and by authorizing funding for excellent sports law symposia. Also while under her watch, the Harvard Journal of Sports and Entertainment Law made significant progress towards obtaining faculty and administrative approval. In addition, as Solicitor General, she co-authored the Justice Department's amicus brief in American Needle v. NFL. Last but not least, she's a Mets fan.
Sports Illustrated Column on Legality of Pre Draft Questions in NFL
Message posted on : 2010-05-08 - 06:00:00
I have a new SI.com column that looks at whether the legal implications of "offensive" questions asked of players eligible for the NFL draft. Here's an excerpt:
* * *
Can NFL teams legally ask prospective draft picks any question, no matter how offensive, during pre-draft interviews?
The last few weeks have revealed two interviews that strike many as objectionable. Namely, Miami Dolphins general manager Jeff Ireland asking Dez Bryant if his mother is a prostitute and an official from the Cincinnati Bengals reportedly asking Geno Atkins if he was straight or gay.
These and similar types of questions could pose legal consequences and possibly lead to reform of pre-draft interviews.
From the standpoint of federal law, Title VII of the Civil Rights Act of 1964 protects job applicants from answering pre-employment questions that are designed or used to discriminate on the basis of race, national origin and certain other protected categories (sexual orientation is not among them). While Title VI empowers employers to test job applicants in a wide-range of ways, questions posed during job interviews must relate to an applicant's ability to perform a job.
* * *
The Dolphins would likely raise several defenses.
First, a pre-draft interview may be legally distinguishable from a job or "pre-employment" interview. After all, the NFL draft is a procedure whereby teams obtain the exclusive negotiating rights to sign eligible football players; teams that draft players thus do not "hire" them for employment, they only obtain negotiating rights to hire them. While this argument may sound like semantics, it could be used to distance Title VII from questions raised during pre-draft interviews.
Second, a question related to a job applicant's socioeconomic class or family culture may be legally distinguishable from one related to his race or national origin. Unlike race or national origin, "class" or "culture" are not, strictly speaking, protected categories.
Third, Ireland's question, while insensitive and regrettable, was seemingly not discriminatory in a racial sense, since Bryant's race was already known prior to the question.
Fourth, the question should be viewed in the context of extensive pre-draft evaluations and the bevy of tests required of potential draft picks. . . .
* * *
As of a recent count, 21 states prohibit discrimination on the basis of sexual orientation. Some of these states are home to NFL teams: Colorado, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Washington and Wisconsin all feature such laws (Ohio does not).
A team sued for asking about a player's sexual orientation would likely raise similar arguments to those noted above, including that a pre-draft interview should be considered legally distinguishable from a pre-employment interview. A team may also assert that varying states' laws should not apply to internal NFL matters, since it could lead to confusion and inconsistencies among teams in different states. That argument, however,
has not yet succeeded in the StarCaps litigation (Williams v. NFL), which concerns whether the NFL can suspend players for failing steroids tests when those tests violated certain rights under Minnesota state law.
While lawsuits brought by Bryant, Atkins and other similarly situated players seem unlikely to materialize, the National Football League Players' Association, which represents the interests of players not yet in the league, could seek better safeguards for the questioning of potential draft picks . . .
The StarCaps saga took yet another turn on Thursday when Minnesota state court Judge Gary Larson finally answered the basic question of the case--can the NFL suspend Pat and Kevin Williams? It took almost 2 years to get there, but Judge Larson concluded that Minnesota law does not prevent the NFL from suspending the Williamses. So, in one sense, this was a victory for the NFL.
But, there is also a loss wrapped inside this victory. Since this case began, the NFL has been seeking a determination--first from the federal courts, then Congress, and now Minnesota state court--that the NFL's drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or from Judge Larson.
*************
Judge Larson made 4 key findings that led to his ultimate conclusion that the NFL may suspend the Williamses: 1. The NFL is the employer of the Williamses for purposes of DATWA; 2. The NFL violated DATWA's three-day notice requirement; 3. The Williamses were not harmed by the NFL's violation of the notice requirement; 4. The Williamses failed to prove that the NFL violated DATWA's confidentiality provision.
*************
Judge Larson also spent a surprising amount of time chastising the NFL throughout the opinion. For example, although Judge Larson could not determine that the NFL was responsible for leaking the results of the Williamses' positive tests, he noted that "the media leak was clearly of no importance to the NFL Commissioner, as he did nothing to determine that the NFL did not violate DATWA's confidentiality provision... Judge Larson also addressed the NFL's failure to notify the players that StarCaps contained bumetanide, despite the fact that the league became aware that StarCaps contained the banned substance as far back as 2006....Judge Larson added that the NFL directed the drug policy administrator "to report any future players for discipline who tested positive for Bumetanide, even though their use thereof was inadvertent." Judge Larson thus concluded that the NFL "was playing a game of 'gotcha.'"
Justice Department Scrutinizing One-Year Renewable Scholarships
Message posted on : 2010-05-07 - 11:15:00
Libby Sander of the Chronicle of Higher Education writes today about the Justice Department's interest in NCAA scholarship rules, particularly the one-year renewable rule for scholarships. Here's an excerpt:
* * *
Lawyers from the department's antitrust division recently met with officials from the National Collegiate Athletic Association to discuss the association's rules governing athletics scholarships, according to an e-mail message from the NCAA obtained by The Chronicle. The department appears to be looking at the limitations the NCAA places on scholarships. Currently, an institution is allowed to give an athletics scholarship for only one year at a time—a rule that has been on the books since 1973—and the scholarship may be renewed for no more than five years in all.
The message from Elsa Cole, the NCAA's general counsel, was sent this week to Division I athletic directors and conference commissioners, among others. Lawyers from the Justice Department, Ms. Cole said in the message, are now beginning to contact the general counsels of Division I colleges, as well as conference commissioners, to discuss "the purpose and effect of those rules."
* * *
The debate over whether financial aid for athletes should be renewable annually or represent a four-year commitment has never fully abated in the 37 years that the one-year rule has existed. Some athletes say the annual renewal leaves them vulnerable in cases of injury or misunderstandings with a coach, while many athletic directors and coaches say it is a necessary and logical practice.
To read the rest, click here. Posted By : Michael McCann
Recap of NBA Age Limit Panel at UNC Chapel Hill Scholarly Conference on College Sports
. . . [A]ll the panelists agreed that if players really don't want to be students, they shouldn't be on campus.
"If a young man doesn't want to be in college, you shouldn't be forcing that man to," said Shane Lyons, the ACC associate commissioner for compliance and governance. "What we have to do is make sure that one year is valuable for those young men, make sure they're going to class."
The NBA rule strikes a lot of people as unfair, said Vermont law professor Michael McCann, who also serves as a legal analyst for Sports Illustrated.
"The evidence is overwhelming that those who skip school have done very well as professionals, so why not let them all have the choice?" McCann said. "I'm not saying they should all not go to college. I'm saying they should be able to make the choice."
And even if the player makes the wrong choice, [Maryland coach Gary] Williams said he should be given a second chance.
"A player should have the right to make a mistake," he said. "You should be able to go back to college if you don't make it in the NBA. You should be allowed to get out and go back to school, with still having your eligibility."
It's difficult for student-athletes in financial need to stay in college when the NBA offers them multi-million dollar contracts, the Maryland coach said.
"They are frequently among the poorest students on campus," Williams said. "If there was a way to provide a stipend for them, because they're not like the other college students. It's a tough fight to keep people [at school] when there is so much money to be made."
Panelist Darryl Dawkins, the first player to jump directly from high school to the NBA, nevertheless supported the idea of spending at least a year at college.
"One year is getter than none," Dawkins said. "You at least have something to fall back on." But by going pro, Dawkins said, he was able to put six of his brothers and sisters through college.
Other players should have the opportunity Dawkins seized, McCann said. "Why not let them take advantage of that brief moment in their lives when they can make a lot of money?" McCann said. "Who cares about the effect on college basketball? What about the effect on the players?"
For additional commentary on the conference, be sure to see excellent commentary by Megan Kahn, Assistant Commissioner of the Atlantic 10 Conference, over on College Athletics Clips (subscription only). Posted By : Michael McCann
Star Caps Update: Minnesota Judge Upholds Suspension
Message posted on : 2010-05-06 - 11:41:00
The Star Tribune is reporting that Minnesota state court Judge Gary Larson has upheld the four-game NFL suspensions of Minnesota Vikings Kevin and Pat Williams. I have not seen the opinion, but the Tribune notes that Judge Larson found that the NFL (and not the Vikings) is the employer of the Williamses and that the suspensions violated Minnesota state law, but upheld the suspensions because the violations did not harm the Williamses. Judge Larson is holding a hearing later today to determine if the suspensions will be stayed pending their appeal within the Minnesota state court system.
For additional updates on this and other sports law stories, you can follow along here. Posted By : Gabe Feldman
The Next Step in the StarCaps Saga: Federal Legislation?
Message posted on : 2010-05-04 - 16:57:00
Over at sportsillustrated.cnn.com, Peter King is reporting that California Representative Henry Waxman is “close to introducing legislation in the U.S. House that would make drug policies negotiated as part of a national collective bargaining agreement – such as the one the NFL negotiates with players – override state drug-testing laws.” As King writes, “If Waxman's legislation –which will cover all sports, not just the NFL—is successful, it won't be retroactive. But it would prevent every player in a major sport from appealing to the laws of the state the team plays in if the player tests positive for a banned substance in his league.”
This proposed legislation, of course, stems from the Star Caps saga, when five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games after testing positive for bumetanide. After a series of legal maneuverings in state court, the players challenged their suspensions in federal court arguing, among other things, that the NFL breached its fiduciary duties under the NFL Policy by not warning the players that StarCaps contained bumetanide. The Williamses also argued that their suspensions violated their rights under Minnesota's statutory workplace drug laws—the Drug and Alcohol Testing in the Workplace Act and the Consumable Products Act. The NFL claimed that these state law claims were preempted by the terms of the collectively bargained NFL Policy on Anabolic Steroids and Related Substances. The United States Court of Appeals for the Eighth Circuit disagreed with the NFL, concluding that the NFL's drug policy does not trump state law and that the Williamses can challenge their suspensions under Minnesota state law in Minnesota state court. The suspensions of the Williamses (and the Saints players) were thus stayed pending resolution of the case in Minnesota state court— that trial took place earlier this year, and we are still waiting for a decision.
As you might recall, a Congressional subcommittee held a hearing to consider this type of legislation earlier this year. The NFL viewed the Eighth Circuit's decision as a major threat to its ability to maintain and enforce a strict and uniform performance enhancing drug policy, and appealed to Congress for a federal exemption that would allow the collectively bargained drug policies of sports leagues to trump state laws. The heart of the NFL's argument is that they have a unique need for a uniform drug testing policy, because disparate treatment of players on different teams can have a direct impact on the competitive balance of the league. Simply put—a team is put at a competitive disadvantage if its players are treated more harshly than players on a different team, merely because the players play for teams in different states.
Although the members of the Congressional subcommittee did not appear to be inclined to take any action at the conclusion of the hearing, Representative Waxman was clearly concerned. Here's what he said at the hearing: “The federal district court in Minnesota has ruled — and been upheld by the Court of Appeals — that the state laws governing workplace drug testing may trump the collectively bargained agreements of the NFL, Major League Baseball, and other sports leagues….This is a serious problem because some state laws undermine the stringent sanctions established by the sports leagues and their players associations.” Waxman concluded that the Eighth Circuit's ruling “could wreak havoc with policies to curb performance-enhancing drug use in professional sports.”
I have previously expressed the belief that federal legislation allowing the drug policies contained in league collective bargaining agreements to trump state law is premature at this point, for three primary reasons. First, the NFL can still win this case in Minnesota state court. Although Judge Larson determined that DATWA was technically violated because the Williamses were not informed of their positive test results within three days of the test (and that DATWA's confidentiality provision may have been violated), DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it persuaded Judge Larson that the Vikings, and not the league, are the employer of the Williamses. Second, even if the NFL loses the trial, it can seek an exemption from the Minnesota state legislature that makes it clear that the Minnesota state drug laws do not apply to the collectively bargained drug policies of professional sports leagues (in other words, they can get from the Minnesota legislature what they are they seeking from Congress). Such an exemption would not be unprecedented—Louisiana's workplace drug laws have precisely this type of carve-out for sports leagues. Third, at present, only three states (Minnesota, Maryland, and North Carolina) have drug testing laws that might conflict with the NFL policy (and many of these conflicts appear to be minor). Rather than ask Congress to pass a broad federal exemption, the more logical solution—or at least the more logical next step—would be to seek exemptions from the few state laws that may pose a problem for the league. Of course, the NFL might still win the case before the Minnesota state court, so no further action may be necessary at all…
I will have more on this once we get a look at Waxman's proposed legislation. Posted By : Gabe Feldman
Lacrosse and irony
Message posted on : 2010-05-04 - 08:48:00
I am interested in this story, given that I am in the process of finishing edits on a book of chapters on the Duke lacrosse scandal.
A member of the highly ranked men's lacrosse team at Virginia, George Huguely, has been arrested and charged with first degree murder in the death of a member of the similarly successful women's team, Yeardley Love. The irony is that the player attended Landon in Bethesda, Maryland--the same school as five members of the now-unfairly-infamous 2006 Duke team. In the early days of the Duke mess, the Washington Post did a story about Landon, including the following from Huguely: "I sympathize for the team. . . .They've been scrutinized so hard and no one knows what has happened yet. In this country, you're supposed to be innocent until proven guilty. I think that's the way it should be."
The Duke connection is going to become a major talking point on this story in the coming days and weeks, since Duke is the only public reference point for any story about lacrosse. That, no doubt, does not thrill officials at Duke, which is so close to putting this story behind it (all members of that team either have graduated or are about to graduate). It also is unfortunate to the extent any part of the story becomes a) Are lacrosse players somehow more likely to engage in violence (or at least misogynist or sexist behavior) against women; b) What is in the water at Landon and Landon's lacrosse program; or c) Look at Huguely's attitude, as reflected in that quotation about having sympathy for the accused players (a comment that turned out to be correct, both in the abstract and in that case.
Still, if we believe the Duke case has some "lessons," watch in the coming days how carefully both UVa and the police/prosecutors play things. All public comments from university officials have been about Love as a person, with no mention of Huguely. No details have emerged about the cause of death or type of injuries or about the nature of their relationship or its current status. Huguely became the investigative focus and was arrested very quickly, but the ex-boyfriend always is a first look.
We do not have the nasty race and class implications here (although one could find such implications in the outpouring of love and praise for the victim). And, unlike at Duke, a crime unquestionably did occur--the only question is who committed that crime. But the gender issue will be front-and-center to the extent this has hints of domestic violence on campus and involving athletes--primarily athlete as alleged perpetrator (not unusual, unfortunately), but unusually in this case also as victim. And this could trigger some conversations about the relationships between male and female athletes, particularly those playing the same sport. Posted By : Howard Wasserman
Catching up with Links
Message posted on : 2010-05-02 - 18:41:00
http://www.renzullilaw.com/articles-and-publications/85-articles-publications/123-sports-law-assumption-of-risk-and-judicial-review-of-torts-in-athletics. I recently put together a short article on the relationship between products liability law and the assumption of risk defense as applied in the sports context that I thought you might want to share with your other readers.
Posted By : Michael McCann
Sports Lawyers Association Annual Conference
Message posted on : 2010-04-30 - 06:50:00
The Sports Lawyers Association 36th Annual Conference will be held in Phoenix, Arizona on May 20-22. The three day annual conference is designed for attorneys, agents, representatives of professional athletes, professional sports teams and leagues, players associations, stadium and arena authorities, and companies tangentially involved with amateur sports; students and professors of sports law; educators; and all others generally interested in the field. The conference is also a great networking opportunity for those seeking to enter the field. The conference brochure contains the schedule of events and registration information, which can be accessed from the SLA's website. Posted By : Rick Karcher
Catching up with Links
Message posted on : 2010-04-25 - 11:17:00
Here are some commentaries that I've been meaning to blog about over the last week and today found time to do so:
* Over on Mergers and Acquisitions Law Prof Blog, Boston College Law Professor Brian JM Quinn has a terrific post on Stan Kroenke's bid to purchase the St. Louis Rams, a bid complicated by NFL rules that prevent cross-ownership across leagues and by attempts to buy the Arensal Football Club, which Kroenke partly owns. This is a great post on the role of corporate law in pro sports.
* Sports lawyer Jay Reisinger, who has represented Sammy Sosa, Andy Pettitte, and many other athletes, argues in his new post, "Goodell's Folly", that commissioner Roger Goodell abused his powers as commissioner in suspending Ben Roethlisberger, who was not charged with a crime. Marc blogged about this topic last week.
* A reminder that this Wednesday, the Sports Lawyers Association and Sullivan and Worcester will be hosting what should be an outstanding panel on American Needle v. NFL and a sports law networking event. I look forward to being a panelist with ESPN's Wendi Nix, former New England Patriots general counsel Jack Mula, Boston attorney Ryan Marth, and Ed Weiss of New England Sports VEntures. As mentioned, in addition to the panel, there will also be a networking event. If you're in the Boston area, I hope you have a chance to attend. Posted By : Michael McCann
Congratulations to the Harvard Journal of Sports and Entertainment Law: First Issue Now Published
Message posted on : 2010-04-22 - 21:52:00
The first issue of the Harvard Journal of Sports and Entertainment Law was just published today. We congratulate all of the folks who worked so hard to get an official sports and entertainment law journal at Harvard Law School. They include, among many others, our blog's founder, Greg Skidmore (a 2005 graduate of Harvard Law), Boston Celtics assistant general manager and associate counsel Mike Zarren (also a 2005 graduate), Professors Paul Weiler and Peter Carfagna, and current third-year student and Journal editor-in-chief Ashwin Krishnan, who recently received the Paul Weiler Award for excellence in sports and entertainment law.
Will Ben Roethlisberger's 6-Game Suspension Stand?
Message posted on : 2010-04-22 - 16:42:00
Yesterday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player suspended by Commissioner Roger Goodell who has not been charged or convicted of a crime. Whether this suspension will stand, however, depends upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement.
Second, presuming the NFL Personal Conduct Policy is not deemed part of the NFL Collective Bargaining Agreement, Commissioner Goodell may alternatively argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for "being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football." Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not altogether clear that Ben Roethlisberger has done anything "detrimental to the League or professional football," nor that he is in any way "guilty" as the term may be defined by that paragraph.
(Cross-posted on SportsJudge Blog) Posted By : Marc Edelman
New Sports Law Scholarship
Message posted on : 2010-04-20 - 11:10:00
Recently published scholarship includes:
Marc Bianchi, Comment, Guardian of amateurism or legal defiant? The dichotomous nature of NCAA men's ice hockey regulation, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 165 (2010)
Rhonda B. Evans, Recent development, “Striking out”: the Genetic Information Nondiscrimination Act of 2008 and Title II's impact on professional sports employers, 11 NORTH CAROLINA JOURNAL OF LAW AND TECHNOLOGY 205 (2009)
Megan Fuller, Note, Where's the penalty flag? The unauthorized practice of law, the NCAA, and athletic compliance directors, 54 NEW YORK LAW SCHOOL LAW REVIEW 495 (2009/10)
Christopher S. Groleau, Note, Weird science: a look at the World Anti-Doping Agency's questionable testing methods and the need for change to protect international athletes, 13 QUINNIPIAC HEALTH LAW JOURNAL 85 (2009)
Victoria Langton, Note, Stop the bleeding: Title IX and the disappearance of men's collegiate athletic teams, 12 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 183 (2009)
Scott R. Rosner & William T. Conroy, The impact of the flat world on player transfers in Major League Baseball, 12 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 79 (2009)
David Sirotkin, Note, Disciplining the disciplinary systems in professional sports: an attempt to fix the arbitrary and overreaching disciplinary powers of sports commissioners, 11 CARDOZO JOURNAL OF CONFLICT RESOLUTION 289 (2009)
Christine Snyder, Note, Perfect pitch: how U.S. sports financing and recruiting models can restore harmony between FIFA and the EU, 42 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 499 (2009)
Bethany Swaton, Girls can play, too: has the lack of female leadership in NCAA athletics become an afterthought?, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2010)
Benjamin A. Tulis, Final-offer “baseball” arbitration: contexts, mechanics & applications, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 85 (2010)
The panelists will discuss contemporary issues in regulating the use of PEDs and the resulting challenges facing sport leagues and governing bodies.
Posted By : Rick Karcher
New NCAA regs and free speech
Message posted on : 2010-04-16 - 00:07:00
The NCAA announced several new rules today, two of which raise interesting questions if one (say, me) were to try to develop a rigorous conception of athlete free speech. (H/T: Rick). First, the NCAA toughened the penalties for taunting by making it, in some situations, a live-ball foul that would bring the ball back to the spot of the foul and might even negate a score. Second, it banned players from putting messages on eye black (outlawing a practice made famous by Reggie Bush and then Tim Tebow).
There clearly is no First Amendment problem here. The NCAA is a private organization (even if some member schools are private), so not bound by the First Amendment. And even if you could find state action, my guess is that current doctrine would treat this as employee speech (ironic, given the controversy over how student-athletes should be perceived and the issue of who should make money off college athletics); the players represent the university on the field, thus their speech may be restricted to enable the university (as "employer") to carry out its functions without interference.
At a normative level, regulations such as these raise interesting issues of how much liberty of speech players ought to have within the team concept. Everyone must wear the same uniform--but is there (and should there be) some room for individual expression, particularly on matters of public concern (depending on what a player chose to write in the eye black)? Posted By : Howard Wasserman
City of Glendale Approves Reinsdorf Group's Ownership Bid for Coyotes – But Proposed Financing Scheme Creates Possibility of Legal Challenge
Message posted on : 2010-04-15 - 11:51:00
On Tuesday, the Glendale City Council approved a preliminary memorandum of understanding authored by the potential ownership group known as Glendale Hockey, LLC for the purchase of the Coyotes' assets from the National Hockey League.The group, headlined by sports magnate Jerry Reinsdorf, is supposedly viewed as the preferred ownership group to purchase the financially beleaguered franchise that the league bought out of bankruptcy in the latter part 2009.While the City Council ratified the Glendale Hockey, LLC memorandum of understanding, it rejected the proposed document submitted by Ice Edge Holdings, LLC, effectively ending the group's ownership bid.The City Council's approval of Glendale Hockey, LLC's proposed memorandum clears the way for the group to negotiate with the NHL in hopes of purchasing the team.
A reading of the Reinsdorf group's memorandum of understanding shows that Glendale Hockey, LLC plans on financing its bid through the sale of bonds and other revenue out of a newly created community-facilities district.This proposed district centers around Jobing.com Arena and the mixed use real estate development that surrounds the ice arena.The group also plans on raising funds through charging for parking, something that the previous ownership group had never done.However, this proposed method of fundraising has caught the attention of a local Arizona conservative watchdog, the Goldwater Institute.This is the same group that is considering challenging the constitutionality of a recently approved Arizona state tax that would assist in subsidizing the construction of the new Chicago Cubs spring training stadium.
The Goldwater Institute seems to believe that the Glendale Hockey, LLC bid places too much financial stress on the Glendale taxpayers and fails to put enough financial risk on the ownership group. Under the proposed financing scheme, the Goldwater Institute argues that the Reinsdorf ownership group “really seems to have insulated [itself] completely from any financial liability…” and that the brunt of the proposal's monetary burden is placed on the taxpayers.A reading of the memorandum illustrates this point:
under the proposed agreement with the City, after five years Reinsdorf's group can sell the team or force Glendale to cover the group's loses if the team is operating at a significant loss.This puts the new ownership group in a position to abandon its financial obligations to the Coyotes after five years and basically leaves the Glendale taxpayers holding the ball.
Recent Arizona court decisions state that a beneficiary of a governmental gift must provide back some sort of comparable benefit that is clear and reasonable.It is difficult to construe Glendale Hockey, LLC's currently written proposed memorandum of understanding as exhibiting a reasonable benefit to the taxpayers.What exactly is Glendale Hockey, LLC offering in exchange for public support?Perhaps the ownership group would argue that the benefit is keeping the Coyotes in Glendale.However it is unclear whether such an argument qualifies as benefit that meets the necessary threshold to entitle Glendale Hockey, LLC to receive such support.Until further demonstrated, this lack of a clear and reasonable benefit may lead to another lawsuit in the near future; more litigation for a hockey club that has seen its fair share of courtroom action over the last year.
You can read more about the Goldwater Institute, by clicking here.
Posted By : Jeffrey Levine
Jet Fans' Spygate Suit Heard by Third Circuit
Message posted on : 2010-04-14 - 09:13:00
Can a patron sue based on the lack of quality or fairness of a match? Maybe yes.
That question will be decided by the U.S. Court of Appeals for the Third Circuit in the latest twist to the infamous "spygate" affair. As many recall, this tempest concerned the actions of New England Patriots' employee who videotaped the Jet's defensive signals. The NFL, after fining the team and head coach Bill Belichick $500,000 and the team $250,000, thought the matter was over.
But not so fast. Two Jets fans (who are attorneys) pursued a novel legal claim. Carl Mayer and Bruce Afran, representing a class of Jets' season ticket holders, seek class action status and claim damages for the ticket price of the eight games played by the two teams in Giants' Stadium from 2000 to 2007. The trial court, in Mayer v. Belichick, 2009 U.S. Dist. Lexis 23052, concluded that none of the causes of action -- which included tortious interference with contract, deceptive business practices, breach of contract and quasi-contract -- resulted in any actual injury and thereby dismissed the claim. The appeals court, however, apparently considered the plaintiff-appellants' claims seriously enough to grant argument.
Imagine the potential effect of a positive ruling by the court. Could it open the door for groups of fans to sue for their money back based on one team reading the catcher's signals or surreptitiously seeing diagrams of basketball plays. A fascinating and (maybe horrifying)thought.
This Friday morning, the Sports Law Society at my law school is hosting a panel titled, Exploitation of the Student-Athlete? Evaluating Bloom, Oliver, O'Bannon and Keller. While the title of the event speaks for itself, the panelists are, or have been, involved in high profile cases on behalf of amateur athletes and consist of: Rick Johnson, attorney for Andy Oliver and James Paxton; Jon King, lead attorney in the O'Bannon/Keller case; and MSU Law Professors Bob and Amy McCormick, who have written extensively on the commercialization of student-athletes and Bob served as a consultant in Maurice Clarett's lawsuit against the NFL. The panel will be moderated by Michael Huyghue, Commissioner of the United Football League, who has extensive experience as both a player agent and league front office executive. The panelists will share their expertise and practical experiences representing athletes against the NCAA and its member institutions and other commercial entities. I am also pleased to announce that each of the panelists is writing an article on the topic that will be published in this summer's edition of the Florida Coastal Law Review.
Posted By : Rick Karcher
Steelers - Personal Conduct Policy Update
Message posted on : 2010-04-10 - 14:23:00
Upon further research, I learned that the NFL currently has in place an internal policy to police NFL clubs for situations involving player discipline. So now the question becomes, not whether Commissioner Goodell can punish the Steelers, but, whether Goodell WILL punish the Steelers, and whether such action will remain private. Posted By : Jeffrey Levine
Benedict Alexander?
Message posted on : 2010-04-09 - 20:21:00
On March 6, 2010, boxing fans around the world bore witness to one of the most impressive junior welterweight title fight victories in recent memory, as undefeated Devon Alexander unified the WBC and IBF titles in devastating fashion by stopping Juan Urango in the eighth round live on HBO.The victory appeared to be the coronation of Alexander, who looked the part of a future pound-for-pound entrant as he seamlessly mixed uncanny defense with an aggressive, fan friendly style and accurate punching.Alexander's rise, however, was quickly undermined by the bizarre ways of the WBC.Dan Rafael of ESPN.com reported this week that Jose Sulaiman, long-time head of the WBC, recently asked that Alexander resign as WBC junior welterweight champion.The reason: Alexander dared to express an interest in facing fellow titleholder Timothy (Desert Storm) Bradley, the undefeated WBO champion who many regard as the number one fighter in the junior welterweight division.To Sulaiman, Alexander's expression of interest was equivalent to treason.As patently absurd as Sulaiman's position appears to be, however, the question arises as to whether it is within the WBC's power to strip Alexander of his title if he does not voluntarily resign...
For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2476/2010-04-09.html.
Posted By : Paul Stuart Haberman
Fighting Sioux Retired
Message posted on : 2010-04-09 - 03:43:00
Following a North Dakota Supreme Court ruling yesterday, it appears that the University of North Dakota "Fighting Sioux" mascot/nickname/moniker is now officially retired. The North Dakota Board of Higher Education voted months ago to retire the highly controversial moniker, but had been blocked in its efforts to carry out its retirement decision by a lawsuit filed by members of the Spirit Lake Sioux Tribe. The ND Supreme Court ruling effectively permits the Board of Higher Education to make the retirement determination at any time despite separate and ongoing settlement negotiations with the NCAA in connection with its 2005 "hostile and abusive" mascot policy. Following the Supreme Court ruling, the Board reiterated its previous decision to once and for all retire the logo. The Board sent a letter to UND President Robert Kelley to begin the logo/mascot transition immediately.
The "Fighting Sioux" nickname/moniker has engendered deeply divided and passionate debate in North Dakota and amongst the two primary Sioux tribes in the area, the Spirit Lake Tribe and the Standing Rock Tribe. Under the NCAA's policy that outlaws hostile and offensive mascots, University leadership can, despite the policy, still secure approval from local tribes and continue to use American Indian mascots. Florida State University has secured approval from the Florida Seminole Tribe and continues to use "Seminoles" and "Chief Osceola" as its mascot and nickname. The University of Utah has secured approval from the local Ute Tribe and continues to use "Runnin' Utes" as its nickname.
Under a settlement reached nearly three years ago, the University of North Dakota was given three years by the NCAA to secure approval of both the Spirit Lake Sioux Tribe and the Standing Rock Sioux tribe in order to continue to use the "Fighting Sioux" as its logo and nickname. UND was successful in gaining the approval of the Spirit Lake Sioux Tribe but had not been able to gain support of the Standing Rock Sioux Tribe although it had until November 2010 to do so. Notwithstanding, the Board of Higher Education has ended the controversy simply by voting to retire the controversial mascot. This decision was motivated in part by UND's desire to join the Summit League for purposes of basketball league play and the Conference's refusal to admit UND until it had settled its mascot issues. Posted By : dre cummings
Should the NFL's Personal Conduct Policy Also Apply to Franchise?
Message posted on : 2010-04-08 - 23:14:00
Several recent events have placed the Pittsburgh Steelers' upcoming season in serious peril. Before even a single down of football is played, the Steelers, one of the NFL's most storied franchises, is facing the potential loss of two impact players: franchise quarterback Ben Roethlisberger and Super Bowl XLIII MVP SantonioHolmes.
Roethlisberger, who last year was accused of sexually assaulting an employee at a Nevada resort as part of a civil complaint, is now facing similar allegations stemming from a recent alleged restroom altercation with a 20-year-old college student in a Georgia nightclub. Holmes, who has established a well-documented arrest record since he entered the league in 2006, is currently linked to an alleged assault of a woman at an Orlando nightclub. While the Steelers will have to deal with the reality of both Roethlisberger and Holmes potentially facing some type of discipline from the Commissioner's Office and the resulting fan backlash, the franchise is lucky that the Steelers as an organization will not be subject to punishment as well.
One of the hallmarks of NFL Commissioner Roger Goodell's tenure is the high priority he places on protecting the league's public reputation. Goodell assumed the NFL's top position during a time when many of its players were constantly portraying the league in a negative light. To help change the public's perception of the NFL, Goodell spearheaded the creation of the NFL's Personal Conduct Policy.
The currently implemented Personal Conduct Policy explicitly applies to players, coaches and “all others privileged to work in the National Football League.” Pursuant to this policy, “[a]ll persons associated with the NFL are required to avoid conduct detrimental to the integrity of and public confidence in the National Football League.” The policy allows for Commissioner Goodell to discipline both Roethlisberger and Holmes even if neither is found guilty of their respective allegations. Both can be disciplined even if there are no convictions because, as Goodell asserts, playing in the NFL is a privilege, not a right; therefore anyone subject to the policy may face serious consequences if he or she engages in conduct that is perceived to be detrimental to the integrity of the league.
As the policy is now written, Goodell cannot discipline individual franchises for allowing its players to engage in impermissible conduct. This is because the policy on its face does not explicitly empower Goodell to penalize a franchise. However, directly punishing a team is
not unprecedented, as the Commissioner disciplined both head coach Bill Belichick and the New England Patriots in 2007 for spying on an opponent in an attempt to learn their signals. However the Patriots situation did not involve player discipline issues. Instead, the infraction committed by the Patriots was interfering with NFL rules; if the Commissioner attempted to take action against the Steelers, it would be punishment for the franchise's inability to control its players' off the field conduct, something that was never an issue when Dan Rooney oversaw the team. One characteristic that these situations do share, however, is that both deal with issues that perceivably impact the integrity of the game, something that the policy was implemented to protect.
While the current policy as written does not allow the Commissioner to discipline a franchise, implementing a new version that subjects franchises to the Personal Conduct Policy would easily fix this problem. If the league chooses to adopt such a new rule, the NFL will be empowering Goodell with sweeping authority similar to the power that was given to Judge Kenesaw Mountain Landis, Major League Baseball's first commissioner. However, such authority was only granted to Landis when baseball was marred in the Black Sox scandal, arguably baseball's darkest days. The only issue with providing Goodell this power is persuading franchises to go along with such a rule, and avoiding a challenge from the NFLPA through labor law and relevant provisions of the CBA.
Although it is highly unlikely that franchises would allow the Commissioner to possess such expansive power, this type of development would force franchises to become vastly more proactive and vigilant in keeping players out of troublesome situations. Franchises, now with more of a vested interest in supervising its players, would most likely step up preventive measures to avoid being subject to league discipline. Such measures may include routinely providing players with a personal security detail or heavily fining players for conduct that is adverse to the policy. However all of this must be done in the context of the current CBA to prevent a union challenge. While placing a responsibility on the franchise may sound like a good idea, Goodell most likely does not want to disturb league-owner solidarity with such a rule as the NFL prepares for a potentially prolonged negotiation with the NFLPA.
At this point most of Goodell's attention is probably focused on negotiating a new Collective Bargaining Agreement with the players association. However, this emerging trend of Steelers players garnering negative headlines may merit his concern, as player discipline issues seem to be a persisting problem in the NFL despite the Commissioner's best efforts.
At this point local authorities have turned over their
evidenceagainst Big Ben to the District Attorney's Office and Holmes' attorney maintains that the wide receiver will be exonerated. Goodell has already made it clear that he is dissatisfied with Roethlisberger's conduct and would meet with the star quarterback at a later time. Given Goodell's comment, one would not be surprised if the Commissioner punishes both Roethlisberger and Holmes under the policy. What is not clear is whether Goodell plans on attempting to also directly discipline the Steelers. Again, a reading of the policy does not lend itself to penalizing organizations, so it may be a stretch to punish an entire team. However Goodell prides himself on safeguarding the integrity of the NFL, so the notion of the league amending the Personal Conduct Policy to allow for team discipline may not be as farfetched a prediction as it sounds.
Posted By : Jeffrey Levine
More MLB Collusion in 2010? Unions' Claims Keep Coming
Message posted on : 2010-04-08 - 22:23:00
On Tuesday morning, the Associated Press reported that the Major League Baseball Players Association may file a grievance against Major League Baseball club-owners for allegedly colluding in the market to sign free-agent players during the 2009-2010 off-season. One reason why the MLB players union seems to believe that club-owners have engaged in collusion is because player salaries rose only by 1% last season, even though total league revenues have increased at an annual rate of 7.6% over the past three years .
Another reason why the MLBPA may be concerned about collusion is that MLB club-owners have a long history of colluding in the free-agent player market. For example, in my 2008 Wayne Law Review article, "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones," I discuss how three arbitration decisions from the 1980s found MLB club-owners to have colluded against players' rights. One esteemed labor arbitrator, George Nicolau, even found Commissioner Bud Selig to have been directly involved in collusion during the 1986-87 off-season (seepages 619-20).
With this week's newest collusion concerns, the MLBPA now has to decide whether to file a formal labor grievance over three separate, outstanding sets of claims:
Then, there are similar allegations from the 2008-09 off-season, over which the MLBPA, one year after announcing its concerns, still has not filed a grievance.
Yale Law School Panel on Sports and the Law: Current Issues
Message posted on : 2010-04-07 - 20:00:00
Next Tuesday, April 13th, Yale Law School will be hosting a panel discussion titled, "Sports and the Law: Current Issues."
I am honored to be moderating the event, which has some terrific speakers. A wide-range of topics will be covered, including compensation for ex-college athletes and retired athletes; American Needle v. NFL; new media and licensing issues; the effectiveness of revenue sharing, salary caps, and luxury taxes; age limits, drafts, and other restrictions on player eligibility; player safety and neurological issues; personal conduct policies and player discipline, and strategies employed by leagues and players' associations to lobby Congress and respond to Congressional inquiries/threats.
The panel will take place from 6:10 to 8:00 p.m. and is open to any student (please note: a student ID, from any school, is required; the event is off-the-record and closed to non-participating media).
Here are the details:
Yale Law School Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports and the Law: Current Issues
April 13 2010 6:10 to 8:00 p.m. Room 120
Moderator:
MICHAEL MCCANN (Professor at Vermont Law School; Legal Analyst at Sports Illustrated)
Panelists:
HENRY ABBOTT (Senior Writer, ESPN.com; Founder of TrueHoop, a blog dissecting the people, statistics, business, and bric-a-brac of the NBA)
KEN GORDON (Counsel, ESPN, Disney, and ESPN Media Networks)
JASON LEVIEN (General Counsel and Assistant General Manager, Sacramento Kings; Adjunct Professor of Sports Law, UC Berkeley Law School; former NBA and NFL agent)
TIFFANY MORRIS (Legal Counsel, The Kraft Group, New England Patriots, New England Revolution, Gillette Stadium, and Patriot Place)
CHRIS PARK (Vice President of Labor Economics and Labor Counsel, Major League Baseball)
Special thanks to Alex Kardon, Co-Chair of the Yale Sports and Entertainment Law Association, for putting this event together. For information on attending, please contact Alex at alex.kardon[at]yale.edu. For information on nearby public parking and how to get to Yale Law School, click here. Posted By : Michael McCann
New York High Court Limits Primary Assumption of Risk to Athletic Participation
Message posted on : 2010-04-07 - 13:57:00
Yesterday, the New York Court of Appeals (the state's highest court) published Trupia v. Lake George Central School District. The case involved a claim that of negligent supervision; plaintiff, a student, fell off a banister and sued his school district. The defense responded with primary assumption of risk, a doctrine that has continued to plague plaintiffs in negligence cases, particularly involving injuries sustained during athletic participation.
The Court narrowed the availability of primary assumption of risk significantly, suggesting that, in the aftermath of the state's move to comparative fault, it should only be available in athletic injury claims. According to the Court,
The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in "facilitat[ing] free and vigorous participation in athletic activities" ...
We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation...
No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances. The injury-producing activity here at issue, referred to by the parties as "horseplay," is not one that recommends itself as worthy of protection, particularly not in its "free and vigorous" incarnation...
This decision brings New York law in line with developments in other jurisdictions limiting the availability of primary assumption of risk in non-contact sport situations. See my post, "Is Potato Sack Racing a Contact Sport?", for further discussion. Posted By : Geoffrey Rapp
SLA and Sullivan & Worcester Panel: "American Needle, Case in Point: Is the NFL a single entity?"
Message posted on : 2010-04-07 - 12:31:00
I look forward to participating in this panel discussion on American Needle v. NFL and its potential impact on professional sports. The event, which will occur on Wednesday, April 28, is sponsored by the Sports Lawyers Association and Sullivan & Worcester, which will host the panel in its Boston office. The panel is open to the public, but be sure to click on the RSVP button to reserve a spot. Great work by Jordan Ablon, the Labor Counsel for the City of Boston and Mayor Menino, in putting this event together.
"American Needle, Case in Point: Is the NFL a single entity?"
April 28, 2010
Program: 6:00 - 7:00 pm Reception: 7:00 - 8:00 pm
Sullivan & Worcester LLP One Post Office Square, 21st Floor Boston, MA 02109 View Map
The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion of American Needle v. NFL and the potential impact the Supreme Court decision may have on the sports industry. Our panel will include:
Jack
Mula Of Counsel at Seyfarth Shaw; Formerly General Counsel, New England Patriots
The University of Baltimore School of Law and its Center for Sport and the Law is pleased to present Traumatic Brain Injury: Implications for Sport and Health on Thursday, April 22. This half-day event will examine the effect of traumatic brain injuries on athletes at all levels, from youth through professional. Dr. Ann McKee, noted expert on the issue of traumatic brain injury, will deliver a lunchtime keynote address. A tentative agenda is below.
There is no charge to attend the symposium, but pre-registration is suggested as seating is limited. Online registration is now available! Information about parking at the University of Baltimore is available on the University's Web site.
10-10:30 a.m. Welcome and Overview Student Athletes and Brain Injuries: The Legal Perspective Phillip J. Closius Dean, University of Baltimore School of Law
Dionne Koller Assistant professor and director, Center for Sport and the Law University of Baltimore School of Law
10:30 – 11:45 a.m. A Medical Perspective on Traumatic Brain Injury in Contact Sports Dr. Leigh Ann Curl (invited) Head orthopedic surgeon, Baltimore Ravens
Dr. Kenneth Fine Team physician, The George Washington University varsity sports teams and District of Columbia Public Schools
Dr. Thom Mayer Medical director, NFL Players' Association
Dr. Yvette L. Rooks Team physician, University of Maryland Terrapins
11:45 a.m. – 12 p.m. Lunch
12 – 1 p.m.Afternoon keynote remarks: The Data on Football Dr. Ann McKee Boston University School of Medicine
1 – 1:15 p.m. Break
1:15 – 2:30 p.m. Protecting Current and Former Athletes Benjamin Boscolo ChasenBoscolo
Darryl Conway Assistant athletic director for sports medicine, University of Maryland College Park
Mel Owens Namanny, Byrne & Owens Former linebacker, University of Michigan and Los Angeles Rams
Stan White Assistant football coach, Gilman High School Former linebacker, Ohio State University and Baltimore Colts
Posted By : Michael McCann
The NFL and Workers' Compensation
Message posted on : 2010-04-06 - 09:57:00
Alan Schwarz of the New York Times offers an interesting story today regarding a workers' compensation claim recently filed in California by the wife of former NFL lineman Ralph Wenzel, effectively asserting that Wenzel developed dementia as a result of his eight year career in the NFL. Schwarz reports that around 700 workers' compensation claims have been filed by former NFL players in California -- whose workers' compensation system is available to anyone that played a single game in the state -- with most of the claims to date relating to orthopedic injuries. If successful, Wenzel's claim would mark the first time that a player has received workers' compensation for the long-term effects of head trauma, and would open the door for hundreds of similar claims to be filed by other former players. Experts predict that the NFL could be facing $100 million or more in potential future liability should Wenzel's claim succeed. Posted By : Nathaniel Grow
A Different Take on the Expansion of the NCAA Tournament to 96 Teams
Message posted on : 2010-04-05 - 09:27:00
While most of the college basketball fans in the country have been finalizing their "why I hate Duke" speeches, the NCAA continues to move towards expanding the tournament from 64 to 96 teams. The proposed expansion has been met with an avalanche of criticism. Critics claim that a larger field will devalue the regular season and the conference tournaments, dilute the NCAA tournament field, destroy office brackets, and all but ruin March Madness. I'm not convinced that expanding the tournament is a good idea (though I do not think it will destroy the tournament), but I think the NCAA has a more subtle concern than the negative reaction from fans and journalists: Adding 32 teams to the tournament may have a real impact the NCAA's position in antitrust lawsuits, including the O'Bannon-class action suit currently pending in federal court.
I have a new column up in the Huffington Post that takes a closer look at the possible antitrust implications of a 96-team tournament. Here's an excerpt:
Judicial deference to the NCAA is not unconditional. While some commentators have been screaming for years that the NCAA cares about money, not amateurism, courts have continued to defer to the NCAA in antitrust cases when the NCAA makes rules governing student-athletes that are arguably related to maintaining amateurism and furthering academic ideals. That deference could fade if the NCAA makes decisions--like expanding the tournament-- that seem to put the "athlete" ahead of the "student" in student-athlete. At a minimum, it will give ammunition for plaintiffs to use in antitrust cases--and their quest to obtain treble damages-- and give judges and juries a reason to more strictly scrutinize NCAA rules.
NY Times Sell Portion of its Stake in Boston Red Sox
Message posted on : 2010-04-04 - 20:50:00
With the Red Sox playing the Yankees tonight at Fenway Park, it's a reminder that earlier this week, the New York Times sold a portion of its minority ownership stake in the Red Sox. Boston College Law Professor Brian Quinndiscusses the sale on M&A Law Prof Blog. Posted By : Michael McCann
International Sport Law & Business Conference (ISLBC) in Istanbul
Message posted on : 2010-04-04 - 20:28:00
Our friend Matt Mitten, a professor at Marquette University Law School and director of the National Sports Law Institute, will be speaking about American Needle v. NFL at the International Sport Law & Business Conference, to be held in Istanbul on September 6 and 7. The conference is being organized by a number of persons, including Tassos Kaburakis, director of the Southern Illinois and University Edwardsville Sport Management Graduate Program.
For more details, click here or see Geoff's earlier post on abstract submissions for the conference.
Update: My bad: there are two conferences, not one. Here's Tassos Kaburakis:
Hi Mike and everyone. Quick clarification, as there's a lot going on in our field and in Istanbul this year:
Matt Mitten, Jim Nafziger, and other good colleagues will be speaking in the May 13-14 international sports law symposium hosted by the Istanbul University Comparative Law Center and the Turkish National Committee of the International Association of Legal Science. For convenience, here is the May program: http://www.kaburakis.com/wp-content/uploads/2010/04/program-1.pdf
The broader scope and more involved/open to participation International Sport Law & Business Conference (ISLBC) we are organizing with our Turkish colleagues is set for September, and a new Call is available through the website: http://istanbul2010.islbc.org/
I have been truly amazed by the interest and the quality level as the weeks evolve, and so far we have had many esteemed colleagues from the US, Europe, and beyond submit abstracts and express their desire to attend. Over April and May we will progressively announce conference presenters and keynote panelists. The sneak preview is that the latter have been key in ADR, CAS, US/International sport governance, and shaping legal theory, research, and strategy over the past 30+ years. With everything Istanbul offers this year and especially in September, one needs to seriously consider this opportunity. Keep checking the website for more ISLBC updates and September events news. More soon. Keep enjoying good work and a fantastic spring season.
Posted By : Michael McCann
Introducing Guest Blogger Jeff Levine
Message posted on : 2010-04-02 - 09:19:00
We're pleased that Jeff Levine will be a guest blogger for the next two weeks. Along with his legal practice, Jeff currently serves as a staff writer for the Business of Sports Network. He is a graduate of Tulane University Law School, and previously served in legal positions with the Cleveland Cavaliers and the Phoenix Coyotes. We look forward to his contributions. Posted By : Michael McCann
Sports and politics, mixed
Message posted on : 2010-04-01 - 13:33:00
A recent study by National Media, Inc., a GOP firm (conducted by Scarborough USA, a joint project of Nielsen and Arbitron) found that dedicated sports fans tended to vote Republican than Democrat. The strongest Republican support was among fans of the PGA, college football, and NASCAR; strongest Democrat support was among fans of the NBA, WNBA, men's and women's tennis, and WWE (!). Fans of baseball, the NFL, and college basketball leaned Republican, but in somewhat closer numbers. The poll is based on 218,000 surveys conducted between August 2008 and September 2009.
Based in part on my interest in speech at sporting events, the connection between politics and sports (and sports fans) is of interest to me. The (likely) political make-up of the fan base at a game says a lot about what sorts of speech fans will tolerate from other fans at the game.
But I admit to being a bit surprised by the results, particularly the breakdown by individual sport. Although I probably should not be. Presumably white men make-up a big portion of sports fans and that group now tends to lean Republican. Conversely, perhaps women are more likely to self-identify as Democrats but less likely to be die-hard sports fans? There are presumptive geographic lines with some of the strongly GOP sports (NASCAR, bull riding) that map political lines. The college football and basketball numbers also are interesting. If (as I believe polling shows--I could be wrong) people with college degrees (or higher) lean Democrat, this poll suggests the people watching and rooting in those sports did not attend the colleges they are rooting for. Again, not a surprise, since the fan base for, say, Duke basketball or Florida football is broader than Duke student/alumni base. And a sport like college football again has geographic lines--it is probably most popular in the South and non-urban Midwest)--that map political lines. Finally, the size of the gap is surprising; if you look at the breakdown, Republicans enjoy a double-digit advantage among fans of most major sports (except baseball and pro basketball).
Maybe I just need a bigger circle. My closest friends and family all tend to be liberal Democrats who love sports. Posted By : Howard Wasserman
According to the Tampa Bay Online, MLB Commissioner Bud Selig might involve himself in the stadium negotiations between Rays ownership and their municipality. (Geoffrey Rapp, Michael McCann and I were cited in this article).
This would be nothing new for Selig, who just last year helped Florida Marlins owner Jeffrey Luria to obtain a new publicly funded stadium.
I have written extensively about how professional sports leagues maintain an under-supply of teams to ensure public stadium financing. For example, in my law review article Sports and the City: How to Curb Sports Teams' Demands for Free Public Stadiums, I explain how the Florida Marlins pressured their municipality into providing huge subsidies by threatening to otherwise move to Las Vegas.
It will be interesting to see what develops in Tampa Bay. Until now, Rays owner Stuart Sternberg has not threatened franchise relocation. It is not clear, however, that Selig would follow the same classy approach.
(Cross-posted on SportsJudge Blog) Posted By : Marc Edelman
NASCAR Continues to Go its own Way
Message posted on : 2010-03-31 - 12:42:00
Just as the NHL and the other big 3 professional sports leagues continue to crack down on athlete misconduct on and off the field, NASCAR seems to be headed in the opposite direction. The NHL now forbids blindside hits to the head, and the NFL forbids almost any hit to the quarterback, but NASCAR has decided that it is permissible for one driver to intentionally crash his car into another driver during a race. I have a new column up on the Huffington Post that compares NASCAR's new (or reborn) "have it and have a good time" policy with the safety/image-first policies of the big 4 pro sports leagues.
Here's an excerpt:
Of course, not everything is off limits. While it may soon be a fineable offense to cough on or near a quarterback in the NFL (we don't want Tom Brady getting a cold, do we?) the NHL still tolerates (if not embraces) fighting. We can quibble with the NHL's decision to allow the fights, but we can understood why they made it--hockey fans love to see fights, and it's not so bad if the players beat on each other every now and then....But, it is a little hard to understand the latest ruling by NASCAR.
Roger I. Abrams, Sports arbitration and enforcing promises: Brian Shaw and labor arbitration, 20 MARQUETTE SPORTS LAW REVIEW 223 (2009)
Timothy S. Bolen, Note, Singled out: application and defense of antitrust law and single entity status to non-team sports, 15 SUFFOLK JOURNAL OF TRIAL & APPELLATE ADVOCACY 80 (2010)
Christopher B. Carbot, Comment, The odd couple: stadium naming rights mitigating the public-private stadium finance debate, 4 FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW 515 (2009)
Walter T. Champion, Jr., “Mixed metaphors,” revisionist history and post-hypnotic suggestions on the interpretation of sports antitrust exemptions: the Second Circuit's use in Clarett of a Piazza-like “innovative reinterpretation of Supreme Court dogma,” 20 MARQUETTE SPORTS LAW REVIEW 55 (2009)
Josh Chetwynd, Play ball? An analysis of final-offer arbitration, its use in Major League Baseball and its potential applicability to European football wage and transfer disputes, 20 MARQUETTE SPORTS LAW REVIEW 109 (2009)
Ed Edmonds, A most interesting part of baseball's monetary structure - salary arbitration in its thirty-fifth year, 20 MARQUETTE SPORTS LAW REVIEW 1 (2009)
Stacey B. Evans, Sports agents: ethical representatives or overly aggressive adversaries?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 91 (2010)
MathieuFournier & Dominic Roux, Labor relations in the National Hockey League: a model of transnational collective bargaining?, 20 MARQUETTE SPORTS LAW REVIEW 147 (2009)
Lloyd Freeburn, European football's home-grown players rules and nationality discrimination under the European Community Treaty, 20 MARQUETTE SPORTS LAW REVIEW 177 (2009)
James Halt, Comment, Where is the privacy in WADA's “whereabouts” rule?, 20 MARQUETTE SPORTS LAW REVIEW 267 (2009)
Ron S. Hochbaum, Comment, “And it only took them 307 years”: ruminations on legal and non-legal approaches to diversifying head coaching in college football, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 161 (2010)
Kristen E. Knauf, Sports law in law reviews and journals (index), 20 MARQUETTE SPORTS LAW REVIEW 299 (2009)
Erick S. Lee, A perception of impropriety: the use of package deals in college basketball recruiting, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL59 (2010)
Alex B. Porteshawver, Comment, Green sports facilities: why adopting new green-building policies will improve the environment and the community, 20 MARQUETTE SPORTS LAW REVIEW 241 (2009)
Michael J. Redding & Daniel R. Peterson, Third and long: the issues facing the NFL collective bargaining agreement negotiations and the effects of an uncapped year, 20 MARQUETTE SPORTS LAW REVIEW 95 (2009)
Nicholas J. Rieder, Book note, reviewing Don Wollett, Getting on Base: Unionism in Baseball, 20 MARQUETTE SPORTS LAW REVIEW 291 (2009)
David L. Snyder, Automatic outs: salary arbitration in Nippon Professional Baseball, 20 MARQUETTE SPORTS LAW REVIEW. 79 (2009)
Jonathan Stensvaag, Note, English-only rules: Title VII, Title II, and the Ladies Professional Golf Association's proposed English-only rule, 13 JOURNAL OF GENDER, RACE & JUSTICE 241 (2009)
While baseball's exemption from antitrust law is generally well established, lower courts have struggled to define the boundaries of the exemption following the Supreme Court's 1972 decision in Flood v. Kuhn. As detailed in my article, the majority of courts considering the exemption's scope post-Flood have simply held that the "business of baseball" is exempt from antitrust law without providing any further guidance regarding which specific activities are within the exempted business. In contrast, some courts -- most notably the court in Piazza v. Major League Baseball, 831 F. Supp. 420, 436 (E.D. Pa. 1993) -- have adopted an extremely narrow view of the exemption, limiting it simply to MLB's historic reserve clause, the only restraint at issue in Flood. Finally, two courts -- Postema v. National League of Professional Baseball Clubs, 799 F.Supp. 1475 (S.D.N.Y.1992) and Henderson Broadcasting Corp. v. Houston Sports Assoc., Inc., 541 F.Supp. 263 (S.D.Tex. 1982) -- have taken a different approach by limiting the baseball exemption to only the sport's "unique characteristic and needs," based on a passage in the Flood majority opinion.
In my article, I set aside the general policy arguments supporting or (more commonly) opposing the baseball exemption, and instead examine the scope of the exemption from a purely doctrinal perspective. My article rejects all three of the existing judicial demarcations as being either too broad and vague (in the case of the majority rule), or inconsistent with the Supreme Court's precedent (in the case of the two minority approaches). Instead, I argue that the often overlooked focus of the Supreme Court's majority opinions in Federal Baseball Club of Baltimore and Toolson -- namely the specific business of providing baseball entertainment to the public -- provides a more appropriate standard for future courts to apply. My article concludes by applying this proposed standard to a variety of baseball-related commercial activities, differentiating between those activities which are and are not properly exempt from antitrust law under my interpretation of the baseball exemption.
The article is available here. Any comments or suggestions would be appreciated. Posted By : Nathaniel Grow
Taxing professional athletes
Message posted on : 2010-03-29 - 13:12:00
The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee. Proceeds from the tax apparently go to the municipality to fund various public parks/recreation projects. Interestingly, the NFL is exempted from the tax because the league had an existing rule that would penalize any state that attempted to impose such a tax. Minor league players are exempted as well (the original proposal covered only players making $ 50,000 or more).
It is easy to criticize this, as one commentator does, as a money grab targeting a vulnerable group. After all, no one is going to have sympathy for the group Rafalski is trying to protect--players making half-a-million dollars and having to pay $ 7500.
But dig deeper. The tax is expected to raise more than $ 1.1 million a year for municipal programs. The players are potentially playing in a publicly financed arena on which the state and local governments will not recoup their financial investments, so it is hard to blame the city for trying to get something.
I do wonder whether there is an Equal Protection problem here--not in singling out professional athletes, but in exempting the NFL. Is there a rational basis for taxing two leagues and not the third? Is avoiding a penalty from the NFL a rational basis? Posted By : Howard Wasserman
Institutional symbolic counter-speech
Message posted on : 2010-03-28 - 21:33:00
Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I havewritten a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message.
An interesting twist on symbolic speech and counter-speech is playing out at the institutional level at Goshen College, an Anabaptist-Mennonite liberal arts college that plays in NAIA. For years, Goshen has not played the national anthem before home sporting events, believing that the song conflicts with the Mennonite traditions of pacifism and anti-militarism (the lyrics celebrate a war and a military battle) and objections to excessive nationalism or pledging allegiance to anything other than God.
But the school has spent more than two years rethinking and debating that policy, ultimately which has drawn criticism from some visitors to the school. The schoolfinally decided to play an instrumental version before home games, beginning with a baseball and softball game played last week. The decision continues to provoke discussion, disagreement, and debate among college administration, alumni, and faculty.
This is an interesting resolution--in part because no one is quite happy. It seems to address the pacifism concerns, excluding the militaristic lyrics, but not necessarily the nationalism concerns, which would seem to reject any song honoring country, regardless of lyrics. I presume this is why playing an alternative song--America, the Beautiful (Ray Charles version)would be my preference--never has been an option and was not the chosen option now.
By agreeing to play the song at sporting events that it sponsors and hosts, Goshen as an institution is engaging in symbolic speech--promoting the symbol and its meaning through the pre-game ceremony. Goshen's message is slightly altered by using only the instrumental version and not associating itself with the lyrics. Now we see what (if any) symbolic counter-speech follows in response. Interestingly, in this case, it could come from both directions. Those who disagree with the new policy may refuse to participate in the symbolic ritual by refusing to stand during the song or by turning away from the flag. Those who believe the new policy does not go far enough may take it on themselves to sing the lyrics as a way of both giving a fuller endorsement to the complete patriotic message (whatever additional meaning comes from the lyrics) and of protesting Goshen's decision not to go farther with the anthem. Posted By : Howard Wasserman
Tomorrow is Sports Law Symposium Day
Message posted on : 2010-03-25 - 17:20:00
Like we blogged about before, tomorrow has a number of great sports law-related events scheduled, all of which are free and open to the public:
Harvard Law School: “Operating in the Shadow of Upcoming Collective Bargaining Negotiations”
Florida International: "Whither the Board? The National Labor Relations Board at 75"
Posted By : Michael McCann
2010 Scholarly Conference on College Sport at the University of North Carolina-Chapel Hill
Message posted on : 2010-03-25 - 09:00:00
I look forward to being a panelist at the 2010 Scholarly Conference on College Sport at UNC Chapel Hill. It will be a three-day event held from April 21 to 23 and is being hosted by the College Sport Research Institute and the UNC Exercise and Sport Science Department. This student-run conference features a one-day Issues in College Sport Symposium followed by two full days of academic research presentations by sport management faculty from across the nation. This annual conference is the creation of UNC Professor Richard Southall, the founder and director of the College Sports Research Institute.
I'll be on the NBA age limit panel and will be joined by Maryland basketball coach Gary Williams, Darryl Dawkins--the first player who jumped from high school to the NBA (drafted in the first round, 5th overall, in the 1975 NBA Draft by the 76ers out of Maynard Evans High School in Florida), ESPN's Doug Gottlieb, and Shane Lyons of the ACC. I'm looking forward to it.
Ethics of Elimination: Will Broad-Based Athletic Departments Survive
* Mr. Jeff Bourne -- Athletic Director, James Madison University * Mr. Mike Moyer -- Executive Director, Wrestling Coaches Association * Ms. Amy Perko -- Executive Director, Knight Commission * Dr. John Cheslock -- Professor, Penn State University * Mr. David Akinniyi -- Defensive End, NC State University
One and Done: What is the Effect of the NBA's Age Limit Rule on the College Game? * Mr. Gary Williams -- Men's basketball coach, University of Maryland * Mr. Doug Gottlieb -- College basketball analyst, ESPN * Mr. Michael McCann -- Professor, Vermont Law School * Mr. Shane Lyons -- Associate Commissioner Compliance, Atlantic Coast Conference * Mr. Darryl Dawkins -- Former NBA player
Thou Shalt Not Tweet: Athletes' Social Networking Legal Rights vs. Institutional Control
* Ms. Kathleen Hessert -- President, Sports Media Challenge * Mr. Lester Munson -- Legal Analyst, ESPN * Mr. Steve Kirschner -- Associate athletics director for athletic communications, University of North Carolina at Chapel Hill * Mr. Marvin Austin -- Defensive Tackle, University of North Carolina at Chapel Hill * Mr. Ronnie Ramos -- Director of New Media Strategies, NCAA
Keynote Speakers
* David Williams -- Vice Chancellor for University Affairs and Athletics, Vanderbilt University * Bernadette McGlade -- Commissioner, Atlantic 10 Conference
Academic keynote
* Michael Oriard -- Professor, Oregon State University
Banquet keynote
* Anson Dorrance -- Women's soccer coach, University of North Carolina
Bridging the Gap
* Craig Thompson -- Commissioner, Mountain West Conference
For information on registering, click here. For information on media, contact conference co-director Jack Daly. Posted By : Michael McCann
New York Law School's Sports Law Symposium
Message posted on : 2010-03-24 - 09:00:00
Paul Haberman and I will be panelists at this year's New York Law School Sports Law Symposium on Monday, April 5. It will be an all-day event and should be excellent. Matthew Corwin, Alycia Hucabey, and Lauren Friedberg have done a great job organizing it. Here are some details:
Location: Event Center (W201) New York Law School 185 W. Broadway New York, NY 10013
Panels for the day include:
12:45-1:45: Legal Issues in Running a Professional Sports League and Stadium
Jessica Berman (Associate Counsel, NHL) Mark Stefanacci (Chief Operating Officer & Legal Counsel, NJ Sports Exposition Authority) Sue Cohig (Senior Vice President, NHL Club Consulting & Services NHL, NYLS alum)
2:00-3:15: Hot Topics in Sports
Jon Wertheim (Senior Writer, Sports Illustrated) Michael McCann (SI Legal Analyst/Vermont Law School Professor) Matthew Pace – (Sports Lawyer, Herrick, Feinstein) Robert Boland (Professor of Sports Management at NYU, columnist at the National Football Post, and Counsel to the coaching representation firm Premier Stinson Sports)
3:30-4:45: Breaking into the Sports Industry
David Soskin (Assistant Counsel, ESPN, NYLS alum) Paul Haberman (Sports Lawyer and NYCLA Sports Committee Chair) Robert Boland (Professor of Sports Management at NYU, columnist at the National Football Post, and Counsel to the coaching representation firm Premier Stinson Sports) Luis Barragan (Director of Programming, HBO Sports) Gabe Feldman (Tulane Law School Professor)
5:00-6:15: Licensing and Endorsement Deals in Professional Sports
Michael McCann (SI Legal Analyst/Vermont Law School Professor) Betsy Goff (previously former executive ABC, VP of ESPN, and IMG legal) Robert Freeman (Sports Lawyer, Proskauer) Kenneth Gordon (Counsel, ESPN) David Mayer (Assistant Counsel, ESPN) Gabe Feldman (Tulane Law School Professor)
6:15-7:15: Networking Reception in the Event Space
Please RSVP to Naomi.Allen@nyls.edu by March 31st Posted By : Michael McCann
Florida International University College Of Law Labor Law Symposium
Message posted on : 2010-03-23 - 21:48:00
FIU Law will be hosting what looks to be an excellent labor law symposium this Friday (the same date that Harvard Law School and Fordham Law School will be hosting sports law symposium). There are some terrific panelists, including those with sports law backgrounds, such as Boston University Law Prof Michael Harper, Marquette Law Prof Paul Secunda, and WVU Law Prof Anne Lofaso. Here are the details:
Florida International University College Of Law, 2010 Law Review Symposium Whither the Board? The National Labor Relations Board at 75
9:15 - 11:45 a.m. Panel I Structural and Administrative Reform under the Existing NLRA Jennifer Hill, Esq., Florida Immigrant Advocacy Center Jeff Hirsch, Associate Professor of Law, University of Tennessee College of Law Anne Lofaso, Professor of Law, West Virginia University College of Law Jeffrey Lubbers, Professor of Practice in Administrative Law, American University College of Law John Sanchez, Professor of Law, Nova Southeastern University Law School
12:00 - 2:00 p.m. Lunch Speakers Dean R. Alexander Acosta, FIU College of Law & Former Member, NLRB Wilma Liebman, Chairman, NLRB
2:00 - 4: 30 p.m. Panel II Changes in Board Law under the Existing NLRA Matthew Bodie, Associate Professor of Law, Saint Louis University School of Law James Brudney, Newton D. Baker-Baker & Hostetler Chair in Law, Ohio State College of Law Catherine Fisk, Professor of Law, University of California-Irvine School of Law Michael Harper, Professor of Law, Barreca Labor Relations Scholar, Boston University
Saturday, March 27th 9:00 - 10:15 a.m. Panel III Structural and Legal Reform: The Discussion Continues Samuel Estreicher, Dwight Opperman Professor of Law, New York University School of Law Paul Secunda, Associate Professor of Law, Marquette University Law School Peter Schaumber, Member, NLRB Posted By : Michael McCann
Vermont Law School Panel on Age Limits in Pro Sports
Message posted on : 2010-03-17 - 18:15:00
On Friday, April 2, at noon, we'll have what should be an engaging panel discussion on the role of age limits in professional sports. We hope you can make it up here (Vermont in April is about as nice a place as you can find). Here is the press release:
The Vermont Law School's Sports and Entertainment Law Society will present a panel discussion on Friday, April 2, on age limits in professional sports.
The event, which is free and open to the public, will be from noon to 2 p.m. in the Chase Community Center.
Panelists will include:
Alan Milstein, a nationally-acclaimed sports litigator who represents NBA players Allen Iverson and Eddy Curry, among others, and who served as lead counsel for Maurice Clarett in Clarett v. NFL;
Mike Zarren, the Boston Celtics' assistant general manager and associate counsel;
Ryan Rodenberg, an assistant professor at Florida State University's Department of Sport Management, former counsel at Octagon sports agency, and author of articles on age limits in the NBA, professional tennis, and the LPGA; and
Chris Brown, President of the Basketball and Entertainment Divisions of the Boston-based Orpehus Sports and Entertainment, which he co-founded with Joe Rosen. Chris's clients include NBA players and music stars, such as Los Angeles Clippers center DeAndre Jordan and former Indiana Pacers point guard Travis Best. Chris is also an adjunct entertainment law professor at Boston College Law School, from where he graduated in 1998.
Professor Michael McCann, who is Sports Illustrated's Legal Expert and who worked for Mr. Milstein in the Clarett case, will moderate.
The debate over age limits in professional sports centers on lucrative contracts and marketing deals, anti-trust issues and labor laws, and whether young athletes have the physical and emotional maturity to compete with older players.
The NFL and NBA have age-based eligibility requirements, but professional baseball, golf, hockey, tennis and other sports leagues either have no minimum age requirement or allow players under age 18 under certain requirements. The NCAA declares players ineligible for collegiate sports once they declare themselves eligible for the pro draft and sign with agents.
Contact Andrew Delaney for more details. For directions to Vermont Law School (which is about 2 hours from Boston and 25 minutes from Dartmouth College), click here. For the panel's Facebook page, click here.
Update: Vermont CLE credit will be available for lawyers in attendance. We appreciate the Vermont Bar Association co-sponsoring this event. Posted By : Michael McCann
It is not nearly as clear as ""three simple things. Respect your teammates, respect your opponents and respect the game." Far more gray area, thus enough stories to support a book. Posted By : Howard Wasserman
Can Your Employer fire you for participating in a March Madness pool at work?
International Sports Law Conferece: Call for Abstracts
Message posted on : 2010-03-15 - 07:53:00
Dr. Anastasios Kaburakis, an Assistant Professor of Sports Management at Southern Illinois University, passed along the call for abstracts for the International Sports Law and Businss Conference in Istanbul, Turkey, this September.
Posted By : Geoffrey Rapp
14th Annual Fordham Sports Law Symposium
Message posted on : 2010-03-12 - 15:29:00
On March 26, 2010, Fordham Law School will host the 14th Annual Fordham Sports Law Symposium. Harvard will also be hosting its Symposium on that day, so for all of you sports law afficionados, TGIF! While Mike will be moderating a panel at Harvard on CBA issues in the NFL, I will be moderating a panel at Fordham on age restrictions in professional sports. Gabe Feldman will be moderating a panel on sports licensing that Marc Edelman is participating on. Hopefully, you can make one of these events. Both Harvard and Fordham's events are free and open to the public. The details for Fordham Law School's Symposium follows:
The Symposium will take place from 8:30am-4:35pm in the James B.M. McNally Amphitheatre. The event is sponsored by The Fordham Sports Law Forum and the New York State Bar Association.
8:30am-9:00am Registration
9:00am-9:30am Welcome and Opening Remarks
CASSIE MULLMAN - Managing Editor, Fordham Sports Law Forum
9:30am-11:10am
Panel 1: The Changing Face of Sports Licensing
Moderator: GABRIEL FELDMAN
Associate Professor of Law and Director, Sports Law Program, Tulane University Law School
Panelists:
JEFFREY CAREY
General Counsel, American Needle
MARC EDELMAN
Assistant Professor, Dwayne O. Andreas School of Law; Founder and CEO, SportsJudge.com
MEIR FEDER
Partner, Jones Day
IRWIN KISHNER
Partner, Herrick Feinstein LLP
11:10am-11:15am Break
11:15am-1:00pm
Panel 2: The Legality and Impact of Age Restrictions into Professional Sports
Moderator: TIMOTHY LIAM EPSTEIN
Chair, Sports Law Practice Group, Smith Amundsen LLC; Adjunct Professor of Sports Law, Loyola University Chicago School of Law
Panelists:
ROBERT MARKS
Vice President of Basketball Operations, New Jersey Nets
MATT PACE
Counsel, Herrick Feinstein LLP
FERNANDO TAMAYO
International Scouting Coordinator, Boston Red Sox
JOHN VOLPERIAN
Host, "Beyond the Game"
1:00pm-1:45pm - Lunch
1:45-2:45 - Keynote Address
JOHN P. McENROE
Of Counsel, Paul Weiss Rifkind Garrison and Wharton
2:45pm-2:50pm Break
2:50-4:35pm
Panel 3: The Future and Evolutions of Sports Salary Arbitration
Moderator: BETH SCHWARTZ
Clinical Associate Professor of Law, Director of Professional Skills
Panelists:
JESSICA BERMAN
Associate Counsel, National Hockey League
JON R. FETTEROLF
Partner, Williams and Connolly LLP
ADAM LUPION
Senior Associate, Proskauer Rose LLP
MEL SOUTHARD
Principal, Excalibur Sports, Inc.
The symposium is free and open to the public. 6 non-transitional, professional practice
NYS CLE credits are available for $85 ($50 for Fordham Law
alumni & public interest attorneys). CLE Credits: 6 non-transitional, professional practice
Practical Effects of American Needle v. NFL on a Minor League Baseball Team
Message posted on : 2010-03-11 - 17:30:00
American Needle v. NFL, which has been discussed in detail on Sports Law Blog, is currently under review by the Supreme Court. As a brief overview, the NFL signed a contract with Reebok International, making the company the official supplier of on-field caps, for all players and personnel. American Needle, out of Illinois, argued that this is a violation of anti-trust law because the NFL's member teams are acting in a concerted effort to eliminate any competition in the market. How this plays out for other sports remains to be seen, but one possible impact is discussed here.
Minor league baseball players, just like their Major League counterparts, dawn New Era caps on the field. It seems as though they always have, and perhaps they always will. However, if American Needle prevails in the Supreme Court, this long standing baseball tradition might just get turned upside down at our cozy little ballpark.
I work for the Single-A Visalia Rawhide, a Diamondbacks affiliate in the California League. A full stadium for us is 2,500 people, making it the smallest full-season ballpark in the country. So what does the American Needle case mean to us? Surprisingly more than you might think.
Like every other affiliated professional baseball team, we have to buy our on-filed caps from New Era. We are one of over 250 teams that are required to purchase caps from this supplier. Like any vendor, they have minimum order quantities; in our case it's 144 caps per order with a six to eight week lag time. Thus, if we run out of a size four weeks into our season, we have to place at least a minimum order, and wait up to eight weeks to receive it. From a practical standpoint, we would go over half of our season without a particular cap size or style in stock. Of course the reason for the long wait time is New Era has over 250 clients whose seasons all start and end at approximately the same time. It would take any company a fair amount of time to develop product for that many clients.
In addition to the long wait time, pricing has gone up about $.50 per cap over the last two years; and not just on fitted caps, but the adjustable and batting practice hats as well, which are made of lower quality materials. These hats now all cost us the same. Add on the fact that the caps are now made in two different countries which causes the sizes to be inconsistent and it becomes easy to see why a team like us would want a little more competition in the market place.
These comments are not meant to be an attack on New Era as a company or supplier to Major or Minor Leauge Baseball. The relationship between these entities is well established and has been from all accounts successful. Rather, this is meant to provide an example of how a landmark decision in the Supreme Court could have a lasting impact on daily operations at a small ballpark in California.
Posted By : Elizabeth Martin
Guest Blogger: Elizabeth Martin
Message posted on : 2010-03-11 - 15:00:00
We are pleased to announce that Elizabeth Martin will be guest blogging on Sports Law Blog for the next couple of weeks. Liz is the Assistant General Manager and Legal Counsel for the Visalia Rawhide, the Class "A" affiliate of the Arizona Diamondbacks. She is a graduate of DePaul University College of Law, where she was sports law symposium editor of the law school's Journal of Sports Law and Contemporary Problems. We look forward to her insights. Posted By : Michael McCann
Update on O'Bannon v. NCAA
Message posted on : 2010-03-11 - 14:31:00
Ed O'Bannon and Sam Keller's class action lawsuit against the NCAA grew yesterday, with the addition of 11 additional plaintiffs. They include former student-athletes who played in championship men's basketball games. Harry Flournoy, who was captain of the 1966 Texas Western team which defeated the University of Kentucky, and Eric Riley, who played at the University of Michigan with Chris Weber and the Fab 5 and later played for 5 NBA teams between 1993 and 1999, are among them.
To read the amended complaint in PDF, click here. Last year, I wrote about this case for Sports Illustrated in a column. Posted By : Michael McCann
Making More by Spending Less
Message posted on : 2010-03-11 - 09:25:00
Sports Business Daily (subscription only), citing Greg Johns of SEATTLEPI.com, reported yesterday that the Seattle Mariners posted "a $3.18M profit for '09, as opposed to a $4.53M deficit for '08." According to SBD: "That deficit was 'thanks in part to the team's highest payroll ever of $120M combined with a significant drop in attendance to 2.32 million fans from the previous year's 2.67 million.' Attendance declined another 6% this past season to 2.19 million last year, but the Mariners lowered their payroll to about $99M, meaning the club 'essentially made more by spending less.'" Bob Condotta of the Seattle Times attributes the '09 profit "largely to increased revenue due to a better team on the field as the Mariners won 85 games in 2009 after winning just 61 in 2008."
The club "made more by spending less." What an amazing concept! --And that's even with a significant drop in attendance. Also, the club won more games when they reduced their payroll by $21M. I wonder if college athletic departments might learn something from this when 95 of the 120 Football Bowl Subdivision schools are reporting deficits, yet they continue to justify the $2, $3, $4 and now $5 million head coaches' salaries (and $500k to $750K for assistant coaches) on the basis that it will lead to more wins. Posted By : Rick Karcher
More on Judges and Umpires
Message posted on : 2010-03-10 - 23:44:00
Mike's post flagging Aaron Zelinsky's excellent essay on the judge-umpire analogy gives me the chance for some shameless promotion:
At the Law and Society Association Annual Meeting in May in Chicago, I will be part of a roundtable on Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. Participants include myself and Aaron, along with Mark Graber (Maryland Law), Neil Siegel (Duke Law and Political Science), Mitchell Berman (Texas Law), and Bruce Weber (journalist and author of As They See 'Em: A Fan's Travels in the Land of Umpires). Topics will include the judge-umpire analogy (including discussion of Aaron's arguments), the nature of judging and sports officiating, and the adjudicative nature of instant replay--all issues near to my heart.
And, to answer Mike's question: I would argue that the President (alone or in conjunction with Congress) is the commissioner, while federal judges (including the SCOTUS Justices) are the umpires. Part of the problem I have come to have with the analogy is it conflates constitutional with statutory adjudication and decisionmaking. The President and Congress make statutory law that courts are expected to interpret and construe (consistent with congressional intent) and apply, just as the Commissioner makes the rules of baseball for the umpires to apply. Posted By : Howard Wasserman
McGill University Faculty of Law Discussion on American Needle v. NFL and Single Entity Issues
Message posted on : 2010-03-10 - 17:00:00
If you are in the Montreal area and are interested in sports and antitrust law, I'll be giving a talk on Tuesday, March 16, at 4 p.m. at the McGill University Faculty of Law. I'll be presenting on both my article, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 Yale Law Journal 726 (2010) and my forthcoming article, The NBA and the Single Entity Defense: A Better Case?, 1 Harvard Journal of Sports and Entertainment Law__ (forthcoming, 2010).
I'll also address related questions of antitrust, labor, and sports law, including the O'Bannon v. NCAA lawsuit and what we might expect in the next set of collective bargaining agreements.
I look forward to my trip to McGill law school and hope to get the chance to meet Sports Law Blog readers who are based in Montreal (I know we have some). Posted By : Michael McCann
The Justice as Commissioner: Benching the Judge-Umpire Analogy
Message posted on : 2010-03-10 - 10:30:00
Yale Law School third-year student Aaron Zelinsky's terrific article, The Justice as Commissioner: Benching the Judge-Umpire Analogy, has been published by The Yale Law Journal Online. It addresses a topic that has generated great discussion on this blog, including some excellent commentary by Howard.
Here's Aaron's intro:
The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices'” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire's passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.
This Essay is divided into three parts. The first Part traces the judicial history of the judge-umpire analogy from the late 1880s, finding that the analogy was originally intended for trial judges, and was expressly advanced as a model to be rejected. The second Part proposes a new paradigm for describing the role of Supreme Court Justices: the Justice as Commissioner. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power. This Essay concludes that Justices are not Umpires: they are Commissioners.
Aaron's article seems particularly timely given comments this week by Chief Justice John Roberts, who used the judge-umpire analogy in his 2005 confirmation hearings. Speaking at the University of Alabama School of Law a couple of days ago, Roberts criticized President Obama for his denouncement of the Supreme Court's decision in Citizens United v. Federal Elections Commission during the President's state of the union address in January. As you recall, the President's comments prompted Justice Samuel Alito to shake his head and mouth "not true". It was a very unusual, somewhat awkward exchange between a President and Supreme Court Justice -- both in terms of a President publicly criticizing the Supreme Court before the three branches of the federal government and of a Justice departing from the expected non-political disposition during state of union addresses.
Roberts said:
The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.
So who might the President be in the judge-umpire analogy? The Commissioner of Baseball? There probably isn't an analog in a federal judge-umpire analogy, given federal judges' lifetime appointment, but an elected state judge would seem to be in a different situation. Food for thought. Posted By : Michael McCann
Vermont Law School Panel on NBA Age Limit
Message posted on : 2010-03-10 - 00:22:00
On Friday, April 3 at 12 p.m., the National Sports and Entertainment Law Society and the Vermont Law School Sports and Entertainment Law Society are hosting a panel on the NBA age limit, which requires that players be 19 years old plus one year removed from high school. CLE credit will be available. Here are the panel participants:
* Alan Milstein (arguably the nation's leading sports litigator; has litigated on behalf of Allen Iverson, Eddy Curry, Maurice Clarett, and many other stars)
* Ryan Rodenberg
* Mike Zarren
* Michael McCann (moderator)
Posted By : Michael McCann
Williams v. NFL update
Message posted on : 2010-03-10 - 00:05:00
Bloomberg's Sophia Pearson, Beth Hawkins, and Aaron Kuriloff detail the latest in Minnesota Vikings defensive tackles Kevin and Pat Williams' lawsuit against the NFL, the trial for which began this week.
The lawsuit stems from December 2008, when the NFL suspended both Williams and four other players for testing positive for the diuretic bumetanide, a banned substance contained in the dietary supplement StarCups, the label of which omits mention of bumetanide. Simplifying the case quite a bit, Williams claims that the testing and subsequent suspension violate Minnesota law's protections for confidentiality and for failure to timely notify of drug test results. The NFL contends that Minnesota law should not govern a dispute that should arise under the agreed-upon terms and conditions of the NFL-NFLPA collective bargaining agreement. Last month, in a separate hearing, a Minnesota judge--Judge Gary Larson--partially rejected the NFL's arguments. Now the parties are in trial before Judge Larson.
Here's an excerpt of the Bloomberg piece -- it focuses on the NFL's arguments and it includes my comments regarding how the NFL views the case:
* * *
The NFL counters that it complied with Minnesota law and that the players' union agreed to the steroid monitoring program. The case was moved from federal to state court last year because it centers on questions of state laws governing workplace drug testing.
A federal judge in Minnesota blocked the league from punishing the tackles while the case makes its way through the state court. Judge Gary R. Larson must decide whether the league or the players' union qualifies as the players' employer to determine whether state labor law applies.
The outcome of the case could affect the “legal deference” the NFL and other leagues have enjoyed through collective bargaining on drug rules with players' associations, Michael McCann, an associate professor at Vermont Law School, said yesterday in an interview.
“It could provide incentives for players to file lawsuits in states which feature laws that are uniquely protective of individuals' privacy rights,” McCann said. “Players might use a particular state's laws to obtain benefits or protections that are not collectively bargained.”
* * *
To read the rest of the Bloomberg article, click here. I wrote a column on this topic back in December 2008. Gabe also has written about the case, most recently last month. Posted By : Michael McCann
Harvard Law School 2010 Spring Sports Law Symposium
Message posted on : 2010-03-09 - 10:00:00
I look forward to speaking at this year's Harvard Law School sports law symposium. It will be all-day event on Friday, March 26. Here is some information on the symposium, which is in honor of Harvard Law School professor (and sports law pioneer) Paul Weiler and is open to the public, free of charge:
* * *
The Harvard Committee on Sports and Entertainment Law and Harvard Journal of Sports and Entertainment Law are pleased to announce the 2010 Spring Sports Law Symposium at Harvard Law School. The event will take place on Friday, March 26, 2010, and is open to the public, free of charge.
The theme for the symposium is “Operating in the Shadow of Upcoming Collective Bargaining Negotiations.” Each of our panels and keynote address will shed light on the key issues facing each league as it approaches the expiration of its collective bargaining agreement. In addition to discussing the key issues that will need to be resolved to avoid a labor stoppage in each league, we will explore how the labor uncertainty is affecting current operations within each league, and how any sort of a labor stoppage might affect the short-term and long-term interests of each league. In exploring each of these issues, we will draw from our panelists' varied backgrounds to fully understand what is at stake for the leagues, teams, unions, players, and other entities close to the game.
Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)
Chris Nowinski, President and CEO, Sports Legacy Institute Sean Morey, NFL Player Pete Kendall, NFL Player Isaiah Kacyvenski, Retired NFL Player Christian Fauria, Retired NFL Player George Atallah, Assistant Executive Director for External Affairs, NFLPA Moderated by Professor Peter Carfagna, Harvard Law School
NFL Panel - 1:15 - 2:30 (Pound 101)
Adolpho Birch, Vice President of Law and Labor Policy, NFL David Feher, Partner, Dewey & LeBoeuf Woodie Dixon, General Counsel and Director of Salary Cap, Kansas City Chiefs Neil Cornrich, President, NC Sports Sarah Stuart, Senior Counsel, Reebok Moderated by Professor Michael McCann, Vermont Law School
NBA Panel - 2:45 - 4:00 (Pound 101)
Jeffrey Mishkin, Partner, Skadden, Arps, Slate, Meagher & Flom Hal Biagas, Executive Vice President of Management, Wasserman Media Group Michael Zarren, Assistant General Manager and Team Counsel, Boston Celtics Matthew Hong, Senior Vice President and General Manager, Turner Sports Robert Tilliss, CEO, Inner Circle Sports Moderated by Professor Peter Carfagna, Harvard Law School
Keynote Address - 4:15 - 4:45 (Pound 101)
Robert Manfred, Executive Vice President for Labor Relations, MLB
MLB Panel - 5:00 - 6:15 (Pound 101)
Daniel Halem, Senior Vice President, General Counsel for Labor, MLB Derek Jackson, Vice President and General Counsel, Florida Marlins David Prouty, Chief Labor Counsel, MLBPA Timothy Slavin, Assistant
General Counsel, MLBPA Joseph Rosen, Partner, Brown & Rosen Moderated by Jimmy Golen, Associated Press
Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda) Presentation of the Paul C. Weiler Award Posted By : Michael McCann
Highlights from MIT Sloan Sports Analytics Conference
Message posted on : 2010-03-08 - 17:00:00
On Saturday, I was a panelist at the 2010 MIT Sloan Sports Analytics Conference, which is hosted by ESPN and which has become (in my opinion) the biggest annual event for sports professionals. I spoke on the "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?" panel.
My panel included Phoenix Suns president of basketball operations and general manager Steve Kerr, ESPN The Magazine editor-in-chief Gary Belsky, and several other excellent panelists. It was an awesome discussion. I could detail points of our discussion and audience questions (which included a question asked by Indianapolis Colts team president Bill Polian), but ESPN's Kevin Arnovitz already does, and quite well, in his column on the panel.
For a review on the entire event, check out Henry Abbott's excellent recap.
Academic papers were presented at the event, and one will clearly attract a good deal of interest. University of Chicago Professor Tobias Moskowitz and Sports Illustrated senior writer Jon Wertheim have co-written a paper on the presence of omission bias among referees. The paper is titled, “Whistle Swallowing: Officiating & the Omission Bias”.
As Kevin Arnovitz details in his recap of the paper, an omission bias in this context refers to a referee's willingness to make an incorrect call rather than make an incorrect non-call. Brian Robb of ESPN's Celtics Hub also has an extensive piece on the paper, which will be part of a book that Moskowitz and Wertheim publish in the near future. Posted By : Michael McCann
The Flying Hotdog Lawsuit: Coomer v. Kansas City Royals
Message posted on : 2010-03-08 - 13:00:00
Over on Torts Prof Blog this morning, I have a guest post on the relationship between "game presentation", where teams and stadium operators try to keep fans entertained at every moment during the game (e.g., firing t-shirts up into the crowd during timeouts), and tort law.
I pay particular attention to Coomer v. Kansas City Royals, a lawsuit which centers on a Royals fan who was hit in the eye by a hotdog thrown by the Royals' mascot, Slugger.
Here's an excerpt from the post:
* * *
We all know the expression, “It's all fun and games till someone loses an eye.” Who would imagine that a hotdog could cause such an injury? According to Coomer, a hotdog indeed caused him a serious eye injury. He claims that he was a mere “few feet away” from Slugger when Slugger's errant, behind-the-back throw led to Coomer's left eye getting hit by a hot dog. Coomer suffered a detached retina and other eye damage. Coomer's complaint doesn't address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn't state so).
Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care. Coomer has also filed a battery claim.
The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur.
* * *
To read the rest, click here. Posted By : Michael McCann
The Washington Wizards Dumped Jamison, Butler, and Haywood. Can they Dump Arenas and his Contract?
Message posted on : 2010-03-07 - 23:25:00
I have a new column up at the Huffington Post that takes a close look at the question on the minds of the Washington Wizards and their fans: Can the team terminate Gilbert Arenas' contract? An excerpt is included below. You can find the full column here. Also, for those looking for quick sports law updates throughout the day, you can follow me on twitter here... (Note: Link is now fixed)
So, the $80 million question comes down to this -- was the "egregious nature" of Arenas' conduct "so lacking in justification as to warrant" a league-imposed 50 game suspension and the termination of his contract?...The closest precedent we have for this case is the infamous choking incident involving Latrell Sprewell.
For the Wizards to terminate Arenas' contract, they would likely have to convince David Stern (and perhaps an arbitrator) that Arenas' conduct was more egregious than Sprewell's. Would they have a compelling argument? Perhaps. Let's compare the two. Arenas violated a specific written NBA rule prohibiting the possession of guns on NBA property (on a team that changed its name from the Bullets to the Wizards to avoid an association with gun violence). Sprewell violated a rule that was so obvious ("don't choke your coach") the NBA did not feel the need to write it down. Arenas compounded the situation by joking about the incident on twitter and in a pre-game team huddle on the court. Sprewell, after being wrestled away from his coach by his teammates, retreated to the locker room to cool off, and then returned to the court 20 minutes later to throw a punch at Carlesimo (and was later charged with reckless driving and served three months under house arrest during his suspension). Arenas had a prior gun offense -- he was suspended in 2004 for failing to properly register a gun. Sprewell had a prior fighting offense -- two years before the choking incident, Sprewell fought with his teammate Jerome Kersey. After the fight, he threatened to return with a gun (fret not, he only returned with a two-by-four).
Posted By : Gabe Feldman
Fame and Infamy
Message posted on : 2010-03-04 - 11:54:00
In comments to my post about Roger Clemens, Ed Edmonds poses an interesting question:
Hasn't Jackson's banishment from baseball actually served to keep him in front of the baseball public for so many years? Does the average fan know as much about Tris Speaker, Nap Lajoie, Honus Wagner (if not for the baseball card) as they do about Jackson? Perhaps Rose can make more money selling his autograph because the controversy keeps his name before the public.
Ed is onto something about Rose remaining in the spotlight (and able to make money) because of his banishment--at least from 1989 until 2004, when he could play the aggrieved victim of unfair treatment (remember his Jim Gray interview at the 1999 World Series). That all ended when he published his book in 2004 and admitted (although without really apologizing for) what everyone already knew. He has rarely been heard from since.
Jackson remains relevant today because he is a singular figure, based on a combination of his greatness and his banishment. He remains more relevant than the other seven banned Black Sox because he was the best player and the only one unquestionably left out of the Hall of Fame because of the ban. He remains more relevant than his other Hall-worthy contempories (Lajoie, Wagner, et al.) because we still have something to talk, argue, and make movies about--whether he did anything wrong and whether the ban should be lifted and he should be redeemed with induction to the Hall (or at least a chance to play in an Iowa cornfield).
Will we remember Rose 90 years from now more because he has been banned than we will remember Hall contemporaries (say, Reggie Jackson or Tony Perez)? Maybe. Will we remember him more than if he just were let into the Hall? Maybe. One distinction could be between record-holders and "other" Hall-of-Famers. Rose was nowhere near the best player of his (or any other generation) or even the best hitter, but he does hold a significant career batting record. So perhaps, even without gambling, we would remember Rose more than we do Perez, just as we remember Ty Cobb more than we do Lajoie. Posted By : Howard Wasserman
Settlement between MLB Properties and Upper Deck
Message posted on : 2010-03-03 - 19:30:00
Maury Brown at the BizofBaseball blog is reporting that MLB Properties and Upper Deck have settled their recent trademark infringement lawsuit. The terms of the settlement are detailed here, but in short Upper Deck has effectively agreed to cease its accused conduct in the future, and agreed to pay MLB Properties "significant" damages for its unlicensed 2010 products. Ethan Orlinsky, Senior Vice President and General Counsel, Major League Baseball Properties declared the settlement to be a "clear and decisive victory" for MLB. Based on the initial details of the settlement, I would have to agree. Posted By : Nathaniel Grow
Some thoughts on Roger Clemens
Message posted on : 2010-03-02 - 16:37:00
Journalist Jon Pessah talks about the legacy and current limbo status of Roger Clemens, based in part on recent conversation Pessah had with the should-be future Hall-of-Famer. In a sidebar, Pessah gathered comments about Clemens from a range of baseball watchers, including Mike and me. Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2010-03-01 - 13:00:00
Recently published scholarship includes:
Sean W.L. Alford, Comment, Dusting off the AK-47: an examination of NFL players' most powerful weapon in an antitrust lawsuit against the NFL, 88 NORTH CAROLINA LAW REVIEW 212 (2009)
Jeffrey Benz, Common issues in international sports arbitration, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 165 (2009)
Kristan Bryant, Note, Take a knee: applying the First Amendment to locker room prayers and religion in college sports, 36 JOURNAL OF COLLEGE & UNIVERSITY LAW 329 (2009)
Christian Dennie, Tebow drops back to pass: videogames have crossed the line, but does the right of publicity protect a student-athlete's likeness when balanced against the First Amendment?, 62 ARKANSAS LAW REVIEW 645 (2009)
Virginia A. Fitt, Note, The NCAA's lost cause and the legal ease of redefining amateurism, 59 DUKE LAW JOURNAL 555 (2009)
Michael Gerton, Note, Kids' play: examining the impact of the CBC Distribution decision on college fantasy sports, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 153 (2009)
Michael Lenard, The future of sports dispute resolution, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 173 (2009)
Richard H. McLaren & Geoff Cowper-Smith, The Beijing Summer Olympic Games: decisions from the CAS and IOC, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 69 (2009)
Jennifer A. Mueller, Note, The best defense is a good offense: student-athlete amateurism should not become a fantasy, 2009 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 527-560
Christopher Pruitt, Debunking a popular antitrust myth: the single entity rule and why college football's Bowl Championship Series does not violate the Sherman Antitrust Act, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2009)
Scott Rosner & Deborah Low, The efficacy of Olympic bans and boycotts on effectuating international political and economic change, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 27 (2009)
John Ruger, From the trenches: the landscape of sports dispute resolution and athlete representation, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 157 (2009)
Michael S. Straubel, Lessons from USADA v. Jenkins: you can't win when you beat a monopoly, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 119 (2009)
Geoff Varney, Note, Fighting for respect: MMA's struggle for acceptance and how the Muhammad Ali Act would give it a sporting change, 112 WEST VIRGINIA LAW REVIEW 269 (2009)
Jeremy A. Wale, Adequate protection of professional athletes' publicity rights: a federal statute is the only answer, 11 THOMAS M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 245 (2009)
Adam Wasch, Children left behind: the effect of Major League Baseball on education in the
Dominican Republic, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 99 (2009)
Dr. Glenn M. Wong, Kyle Skillman & Chris Deubert, The NCAA's Infractions Appeals Committee: Recent Case History, Analysis and the Beginning of a New Chapter, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 47 (Fall 2009)
Brian P. Yates, Whether building a new sports arena will revitalize downtown and make the team a winner, 17 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 269 (2009)
* Steve Pagliuca, Managing Partner of the Boston Celtics
* Sunil Gulati, President, United States Soccer Federation & Kraft Soccer
* Michael Lewis, author of Money Ball
* Jonathan Kraft, President of the Kraft Group and executive at the New England Patriots
I'll be on the panel titled, "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?". Here are some details on it:
Athletes have progressively gotten bigger, faster, and stronger since the beginning of professional sports. This panel will delve into the science and technology that is producing better athletes. Is there a limit to athletic performance? What constitutes a "level" playing field and when is the line crossed? How are sports changing to deal with today's athletes?
For more information click here. Posted By : Michael McCann
The Star Caps Saga Continues
Message posted on : 2010-02-27 - 18:00:00
More than a year after the NFL attempted to suspend Pat and Kevin Williams of the Minnesota Vikings for violating the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”), litigation involving the case continues. The case took another turn last week when Judge Gary Larson, a Minnesota state court judge, handed down a 44 page opinion in response to the parties' motions for summary judgment.
Here are some questions raised by the fairly dense opinion, with some answers.
1. What was the ruling? Judge Larson spent most of the opinion rejecting the arguments of the NFL and the Williamses. He rejected the NFL's arguments that the league's drug policy should trump state law, and rejected most of the Williamses' arguments that the suspensions violated Minnesota state law.
2. Did the NFL Win? Yes and no. I'll start here with what they lost. The NFL was looking for a sweeping victory in this case. The league wants a court—or Congress—to make a determination that the NFL's drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or Judge Larson.
Instead, Judge Larson held that the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA) apply to professional sports leagues. Why? Well, most simply, because the statutes do not provide any explicit exception for the sports leagues. Although the legislative history of the statutes make it fairly clear that those laws were not created to govern the performance-enhancing drug testing of professional sports, Judge Larson was not willing to ignore the plain meaning of the statute to read in an exception for the NFL. In other words, if the NFL wants an exclusion from DATWA and CPA, it will have to obtain one from the Minnesota state legislature, not from Judge Larson.
3. Lost and 24 are having disappointing seasons. What can they do to improve? One word: crossover. Who wouldn't want to watch Jack Bauer shouting and torturing his way across the island? “The following takes place between, well, I have no idea when this is taking place.”
4. Did the NFL Violate Minnesota State Law? Judge Larson rejected most of the Williamses' arguments under DATWA (and all of the CPA claims), but held that the NFL violated DATWA by failing to inform the Williamses of their positive test results within three days of the test. Judge Larson also held that the NFL may have violated DATWA's confidentiality provision. The press allegedly found out about the positive test results before the players, but it's unclear if the results of the tests were disclosed by the NFL. That issue will have to be determined at trial.
5. If State Laws Apply to the NFL's Drug Testing Policies, How Can the NFL Maintain a Uniform Policy? Since the beginning of this dispute, the NFL has argued that application of state laws to the NFL's drug policies will destroy the ability of the NFL to maintain an effective,
uniform drug policy. Judge Larson, however, was unconvinced by the NFL's argument for two primary reasons. First, Judge Larson was not persuaded that the NFL had a special need to maintain a uniform policy. He wrote: “Despite varying state laws, corporations that participate in employee drug testing conduct business across state lines everyday in this country. Defendants fail to demonstrate why it would be more onerous for the NFL to comply with state laws, than for any other business engaged in interstate commerce.”
Second, even if the NFL did have a special need for uniformity, Judge Larson held that this need is outweighed by Minnesota's interest in protecting the health and safety of its employees.
Why the lack of deference given to the NFL? In part, it could simply be that Judge Larson does not believe that the NFL should be treated any differently than other interstate businesses and should not be able to bargain around state law. But, Judge Larson also made it clear that he did not see why application of DATWA would prevent the NFL from enforcing its drug policy. According to Judge Larson, DATWA only provides a floor, or minimum protections, for drug testing, and the NFL is free to provide more protection. Judge Larson did not see how notifying the players of their positive tests within three days and not (potentially) leaking the results of the test to the media (which would also violate the confidentiality provision of the NFL's own policy) would hurt the ability of the NFL to enforce its policy. The NFL, of course, is making a broader argument—they are concerned that a state would enact a law that is too lenient and would prevent the league from disciplining its players in a uniform manner. According to Judge Larson, however, DATWA does not present those concerns, so he did not need to respond to the NFL's broader argument.
6. Can the NFL Still Win this Case? Yes. It's not all bad news for the league. DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it can prove at trial that the Vikings, and not the league, are the employer of the Williamses. A ruling that the NFL is not the employer of the players would be a sweeping victory—it would immunize the league from Minnesota state employment law (and potentially from other similar state statutes). But, here's where it gets interesting. As Judge Larson explained, the Willamses can argue that the NFL is their employer under the “single employer doctrine,” which “looks at whether the commonality of the employers' operations, management, labor relations, and ownership or financial control, is sufficient to indicate that they should be treated as one whole.” In other words, if the court determines that the league and its teams should be treated as “one whole,” then the NFL is the employer of the Williamses and in violation of DATWA. So, for purposes of this case, it is in the best interests of the NFL to argue that the league and the teams should not be treated as a single entity.
Yet, earlier this year, the NFL argued before the Supreme Court in American Needle that NFL teams have no value without the league and thus the league and its teams should be considered one entity. Granted, the single employer doctrine in the Star Caps case and the single entity antitrust doctrine in the American Needle case are different legal theories that serve very different functions. So, it would not be entirely inconsistent for the NFL to argue that each of the individual teams employs their individual players for purposes of employment law, and that each of these teams and the league act as one entity for purposes of antitrust law. But, there is some overlap in the two doctrines, and the NFL might be walking a fine line here. At a minimum, the NFL's position in the Star Caps case (that there is a
distinction between the teams and the league for employment purposes) lends additional weight to the conclusion of nearly every court that sports leagues and their teams constitute multiple entities for antitrust purposes when acting in the labor market. Of course, this conclusion is not inconsistent with the Seventh Circuit's decision in American Needle, where the Seventh Circuit recognized that the NFL might be a single entity in some markets (e.g., licensing of intellectual property) and multiple entities in others (e.g., signing players).
7. What's next? A settlement conference is scheduled for March 1st, and the trial is set for March 8th. If the NFL loses the case and subsequent appeals, look for them to ask the Minnesota state legislature to exclude professional sports leagues (or at least those with collectively bargained drug policies) from DATWA. If that fails, we might see the NFL go back to Congress asking for help… Posted By : Gabe Feldman
* Sunil Gulati, President, United States Soccer Federation & Kraft Soccer
* Michael Lewis, author of Money Ball
* Jonathan Kraft, President of the Kraft Group and executive at the New England Patriots
I'll be the panel titled, "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?". Here are some details on it:
Athletes have progressively gotten bigger, faster, and stronger since the beginning of professional sports. This panel will delve into the science and technology that is producing better athletes. Is there a limit to athletic performance? What constitutes a "level" playing field and when is the line crossed? How are sports changing to deal with today's athletes?
New SI.com Column on NFL Teams Cutting Players with Post Concussion Symptoms
Message posted on : 2010-02-26 - 17:25:00
In the wake of the Eagles cutting Brian Westbrook, I have a new SI.com column on the legal, ethical, and political implications of NFL teams cutting players who suffer from concussions. Here's an excerpt:
* * *
The NFL's collective bargaining agreement does not distinguish concussions from other injuries for purposes of cutting a player. But should it?
After all, there is an arguable disconnect between the NFL's stated commitment to addressing the concussion problem and the ability of teams to cut players who were injured by concussions. In his testimony before the House Judiciary Committee last October, commissioner Roger Goodell said of the link between head injuries and brain ailments, "I can think of no issue to which I've devoted more time and attention than the health and well-being of our players, and particularly retired players."
If that is true, shouldn't players who suffer concussions receive heightened employment protections? In fact, if a player can be cut because of postconcussion symptoms, he may have an incentive to not reveal his injury, a decision that could undermine his health, particularly his long term neurological health.
* * *
NFL teams, for their part, could argue that their decision to cut players who suffer from postconcussion symptoms is neither heartless nor at odds with league efforts to curb concussions; rather, it is a necessity of a salary cap that ties teams' hands. Teams might also insist that it's not their fault if a player suffers concussions -- it's the sport's fault or an unfortunate materialization of risk that every NFL player assumes every down he plays.
Still, the NFL may want to think carefully about teams cutting players with postconcussion symptoms. Congress would seem poised to revisit the concussion topic if there were a pattern of players cut after suffering concussions. Congress has leverage over the NFL, including the threat that it can repeal the Sports Broadcasting Act, which provides antitrust immunity to the NFL and other leagues for their national TV deals. Congress might also re-evaluate the NFL's status as a 501(c)(6) nonprofit organization, which furnishes the league with favorable tax treatment.
* * *
Hope you have a chance to read the rest of the column. I'll be on ESPN Radio's John Clayton Show at 6 p.m. Saturday to discuss the column. Posted By : Michael McCann
An Update on MLB Properties v. Upper Deck
Message posted on : 2010-02-26 - 15:36:00
As discussed here earlier in the month, MLB Properties - MLB's trademark licensing and enforcement entity - recently filed a trademark infringement lawsuit against trading card manufacturer Upper Deck, alleging that Upper Deck was producing unauthorized sets of baseball cards featuring MLB uniforms and logos. On February 16th, Judge Sweet granted a motion by MLB Properties seeking to condense the hearing for a preliminary injunction along with an expedited trial on the merits, with a trial date now set for April 19th.
The Beckett Blog is closely following the litigation in a series of posts, including a recent interview with trademark attorney Miguel Danielson about the case. Meanwhile, most of the court papers are publicly available here. Posted By : Nathaniel Grow
What about curling?
Message posted on : 2010-02-25 - 23:10:00
As the Olympics wind down, I found myself thinking about the "What's a Sport?" question as applied to one of the darlings of these Games--curling. Curling seems to have been discovered in Vancouver, as the public has learned of the game's rhythms (somewhat comparable to baseball), its shot-making and strategy (comparable to golf, with collision physics thrown in), and the attractiveness of many of the female curlers (several European curlers even posed nude for a fund-raising calendar). And curling was a staple of NBC's afternoon live cable coverage during the first week (because the stuff people initially wanted to see was being held for tape-delay), so it was easy to find.
So, is it a sport? Looking at our narrow definition (borrowed from anthropologist John Jackson), no. Jackson requires: 1) a ball or ball-like object as the center of attention; 2) a sense of physical urgency when the ball is in play; and 3) the opponent taking steps to thwart one player's efforts as to the ball.
Curling is OK as to # 1 and # 3--the stone qualifies as a "ball-like object" and the purpose of the game is get your stone closest to the center, often by deliberately knocking the other team's stone away. But it runs into a problem on # 2--sense of physical urgency while the ball is in play. There are no periods of running after the ball--much like golf, which Jackson expressly excludes from his definition. Perhaps we could argue there is physical urgency for the sweepers who must follow the stone and often have to move (and sweep) quickly to get the stone where they want it. The physical movement in curling is arguably greater and more urgent than in golf. In golf, the ball is hit and everyone stands and waits to see where it lands; in curling, the stone is launched and there is some rapid movement to control its progress. So perhaps # 2 is satisfied; it's a close call.
What about the broader definition: 1) Large motor skills; 2) simple machines only; 3) objective scoring; and 4) competition.
Curling passes. The brooms qualify as simple machines and large motor skills in upper and lower body, as well as great balance, are necessary for both the person who launches the stone and the sweepers (putting aside whether sweeping should be part of any sport). Scoring is objective and immediately determined. There you go. Posted By : Howard Wasserman
Seton Hall Symposium Postponed
Message posted on : 2010-02-25 - 14:58:00
Due to weather, the Seton Hall sports symposium originally scheduled for tomorrow will be postponed. I'll update when a date gets set. Posted By : Geoffrey Rapp
New SI.com Column on Legal Implications of the Olympic Luger's Death
Message posted on : 2010-02-22 - 22:19:00
I have an SI.com column on the legal implications on the tragic death of Nodar Kumaritashvili. Here's an excerpt:
* * *
A related issue to the dangerousness of conditions is the type of legal duty owed by the parties to Olympic athletes. According to page 15 of the Olympic Charter, which furnishes the core set of guidelines for the Olympic Games, one of the IOC's roles is "to encourage and support measures protecting the health of athletes." Similarly, according to its own statutes, the International Luge Federation, which regulates luge competitions and works with the IOC, also adheres to the Olympic Charter. Parties involved in the design, construction and maintenance of the Whistler Track would also be expected to provide lugers with reasonable safety.
There are, however, a number of factors that would work against recovery for Kumaritashvili's parents. For one, Kumaritashvili, like other Olympic athletes, had to sign a waiver with the IOC to participate in the Games. The form states: "I acknowledge and agree that: a. I participate in the XXI Olympic Winter Games in Vancouver at my own risk and that I will take all reasonable measures to protect myself from the risks of participation." While waivers are powerful pieces of evidence and bar many forms of civil actions, they are not necessarily complete defenses. The precise wording of the waiver matters considerably; though the Olympic athlete clearly assents to assuming risk as a general matter, certain types risks may not be assumable. Along those lines, even when waivers expressly bar legal claims, they normally do not bar claims based on egregious or unforeseeable behavior. In addition, the IOC's waiver protections may not extend to a torts claim, such as one sounding in wrongful death or negligence, brought against VANOC or other parties.
Even without a waiver, assumption of risk would also be relevant. The fast conditions of the Whistler track were known to Kumaritashvili (and to other lugers) prior to his fatal run. Kumaritashvili, in fact, reportedly told his father that he was concerned about the track's safety. If Kumaritashvili appreciated the actual risk, his choice to nonetheless participate would suggest that he voluntary accepted the risk. Of course, one might wonder how much "choice" he really had: Declining to participate on safety grounds would likely have come with a reputational cost and embarrassment.
* * *
Hope you have a chance to check out the rest of the column. Also, Geoff Rapp and Ryan Rodenberg made some good comments to the Wall Street Journal on this topic.
Posted By : Michael McCann
Reaction to Tiger Woods Apology
Message posted on : 2010-02-22 - 01:46:00
Sports attorney Jay Reisinger has a thoughtful reaction to Tiger Woods's apology:
Some in the media have asked me whether Tiger took the correct path in handling this matter with respect to public relations given that I had represented Sammy Sosa, Andy Pettitte, and A-Rod (and others) in somewhat similar circumstances. To be candid, I would have provided different advice, and employed a different strategy, but that is not to say Tiger (and/or his advisors) chose the wrong path. At the end of the day, Tiger only had to apologize to his wife, his family, and his friends, which he did. He does not need to apologize to the American public or his sponsors. With his statement (and I'm sure well before then), he apologized to the only people he needed to apologize to. This was a personal failure, not a professional failure.
I agree with Jay that Tiger might have been better off employing a different apology strategy. A full press conference in which he answered questions, or a simple written apology could have served him better. The strategy he instead chose seemed like an attempt to get credit for being a public event or even press conference, but in many ways it was neither. It was Tiger Woods reading a statement that had been carefully written, probably by a number of folks, in a controlled environment without the possibility of questions.
On the other hand, a lot of people seemed to like the speech, so maybe it was the right move. When's the last time an apology generated this much attention? NY Daily News has a good list of 21 famous apologies, most of which are from the last 10 years. Posted By : Michael McCann
The Chicago Cubs and Salary Arbitration - Ryan Theriot's Hearing is the Last One of the Year
Message posted on : 2010-02-20 - 10:38:00
The Chicago Cubs have one of the most interesting team histories in salary arbitration. Their hearing yesterday with Ryan Theriot is only the sixth in the history of the franchise. It is also the first for general manager Jim Hendry. The Cubs hold a 3-2 edge over their players. The fact that they are one of the teams with the fewest hearings is interesting enough. To me, however, what is really fascinating is the list of the five players in the group that Theriot is joining: Andre Dawson, Shawon Dunston, Leon Durham, Mark Grace, and Bruce Sutter. What a group of players! Here is a list of the number of years that these five players spent in the major leagues: Dawson - 21; Dunston - 18; Durham - 10; Grace - 16; and Sutter - 12. The analysis could go on in so many directions.
Although Dawson's plaque in Cooperstown will depict him as a member of the Montreal Expos, “Hawk” will join Bruce Sutter who was inducted in 2006. Sutter's plaque shows the reliever with a St. Louis Cardinals cap. Dawson lost his hearing in 1988 ($1,850,000 - $2,000,000). Mark Grace, the most recent hearing before Theriot, lost his case in 1993 ($3,100,000 - $4,100,000). Shawon Dunston defeated the Cubs in 1990 ($925,000 - $1,250,000). Leon Durham lost his 1985 hearing ($800,000 - $1,100,000). Bruce Sutter defeated the Cubs in 1980 ($350,000 - $700,000). Stephen Goldberg, the most experienced of all salary arbitrators, decided three of the previous five hearings. He ruled for the Cubs in the Dawson and Durham cases and against Chicago in the Dunston case. Howard Block handled the Grace case, and Thomas Christenson decided the Sutter case.
The other general managers for the Cubs that have gone to hearings are Bob Kennedy (1980 - Sutter), Dallas Green (1985 - Durham), Jim Frey (1988 - Dawson, 1990 - Dunston), and Larry Himes (Grace - 1993). Jim Hendry became the general manager in July 2002.
Theriot is hoping to win his case today with a demand for $3,400,000. The Cubs offered $2,600,000. Stephen Drew's signing at $3,400,000 on January 19 should work against the Cubs. Drew is in the same service class as Theriot (3 years). Erick Aybar of the Angels, who agreed late this week to a $2,050,000 deal with $100,000 in possible incentives is also in this service group. Posted By : Ed Edmonds
The Good News is That Arbitration is Nearing the End - Jeff Mathis and the Angels
Message posted on : 2010-02-18 - 12:44:00
Mike DiGiovanna reported this morning on the Los Angeles Times Sports Blog that Jeff Mathis is in Tampa today for his hearing with the Angels. Mathis, who received $450,000 for his services last year, is seeking $1,300,000. The Angels offered $700,000. Those figures create a midpoint at $1,000,000. Mathis is in the three-four year service group, and his career batting average is right at the Mendoza line (.200). If you want a good explanation of the Mendoza Line, see Paul Dickson, The Dickson Baseball Dictionary, 540-541 (Third ed., 2009). Mathis split time last year with Mike Napoli, who played in 114 games to 84 for Mathis.
In his blog posting, DiGiovanna also reports that Erick Aybar, the other Angels' player who has not yet settled his case, is expected to avoid a hearing and reach an agreement. Aybar is also in the three-four year service group. Posted By : Ed Edmonds
WSJ Law Blog on Luge Accident Liability
Message posted on : 2010-02-18 - 11:53:00
Ashby Jones from the Wall Street Journal's Law Blog has posted a story on potential legal issues surrounding the tragic death of Georgia luge racer Nodar Kumaritashvili last week in Vancouver. Sports Law Blog former guest Ryan Roderberg, Duke Law Professor Doriane Coleman, and I are quoted in the story. Although the grieving family so far has not indicated interest in a lawsuit, any such claim would appear to face some obstacles due to the available defenses of express, primary, and secondary implied assumption of risk. Given apparent complaints about the track prior to the accident, however, a plaintiff might be able to overcome such obstacles. Posted By : Geoffrey Rapp
Figure-skating: Still fixed, still not a sport
Message posted on : 2010-02-18 - 08:47:00
If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges.
Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging. The theory was that if no one could know how anyone else voted, there was less likelihood that someone would bribe a judge or trade votes, since there was no way to ensure the other side held up their end of the bargain. But a new study by Dartmouth economist Eric Zitzewitz finds that anonymous scoring has had the opposite effect: Home-country bias is about 20 percent higher than under the old full disclosure system. Although backroom-dealmaking is riskier (and thus less likely), the loss of public and media accountability makes it easier for individual judges to bias for home skaters (or skaters from "friendly" nations).
Jon Siegel discusses a proposal from his GW colleague Michael Abramowicz. His solution is to evaluate judges based on how close their individual scores are to the average of all the scores for a skater (with the average reflecting, to some degree, the "right" score). After compiling each judge's scores over time, rewards such as compensation and choice assignments (which competitions, which events) could be determined by how close a judge is to the average over all each competitions.
Interesting idea. But I disagree with Jon that this could "solve the problem of subjectivity in figure skating judging." Nothing can solve that problem, because the judging is inherently subjective and nothing is going to change that. But that just goes to my bugaboo of why it is not a sport.
Let me leave on two questions. First, why don't we have similar problems in other judged Olymic events (similarly, not sport), such as moguls skiing (I watched this and still have no idea how the winner was determined) or half-pipe snowboarding (or whatever it is that Shaun White keeps winning)? Second, were we actually better off in the days of the hallowed-yet-infamous East German Judge, when we recognized that the thing was rigged along Cold War politics and just dealt with it? Posted By : Howard Wasserman
A Hearing a Day - Wandy Rodriguez
Message posted on : 2010-02-17 - 22:30:00
The Houston Astros and pitcher Wandy Rodriguez held baseball's fifth hearing of the year today. The Astros offered Rodriguez $5,000,000 while the pitcher requested $7,000,000. The gap of $2,000,000 demonstrates a significant disagreement between the two parties over the lefty's value. The midpoint is $6,000,000. Rodriguez was paid $2,600,000 in 2009 after exchanging figures with Houston ($3,000,000-$2,250,000), and he is in the service group of players between four and five years. Four of the strongest starters in this group signed multi-year contracts: Felix Hernandez (Seattle), Edwin Jackson (Arizona), Josh Johnson (and Justin Verlander (Detroit). The one-time star of this group, Chien-Ming Wang just signed a $2,000,000 deal with Washington this week. Joe Blanton (Philadelphia), who just barely made it into the service group with over five years, also signed a multi-year deal.
The panel was Richard Bloch, Elizabeth Neumeier and Fredric Horowitz. Bloch is a very experienced arbitrator with a significant pro-team record. Rodriguez was 14-12 last season with a fine 3.02 ERA and a career high strikeout total of 193. His career won-loss log is 51-52. Again, I will post more in the comments section. Posted By : Ed Edmonds
The 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition
Message posted on : 2010-02-17 - 18:30:00
Last week, Tulane Law School hosted the 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. This year's problem was based on the Star Caps case that has been discussed at great length on this site.
I want to take this opportunity to thank the students at Tulane Law School—in particular Nathan Prihoda, Marcus Edwards, Daniel Meyer, Julia Farinas, Andrew Miragliotta, Ashlee Cassman—for all of their hard work in putting this event together. I also want to thank our “celebrity” guest judges for joining me on the panel to judge the finals of the competition. The guest judges were: Andrew Brandt, the founder of the National Football Post and a former vice president for the Green Bay Packers (among many other things), Richard House, General Counsel of the New Orleans Hornets. Judge John Grout, Jr., and Joe Ettinger, Tulane Law class of 1956. And, of course, thanks to the students from the 40 different law schools from around the country for competing in this year's event. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras.
Finally, congratulations to the winners of this year's competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:
The Winner of the 2010 Competition was: Loyola University New Orleans School of Law.
The Runner-Up: Southwestern University School of Law.
The best brief was submitted by: UC Hastings College of the Law. Posted By : Gabe Feldman
University of Baltimore Law School of Law Sports Law Symposium
Message posted on : 2010-02-17 - 11:16:00
If you're in the Baltimore area, tomorrow from 10:30 a.m. to 3:30 p.m. the University of Baltimore will be hosting a symposium that will address three issues: (1) increasing coaches' compensation; (2) the status of the NFL's collective bargaining agreement; and (3) licensing the Ultimate Fighting Championship. The keynote speaker will be agent Tom Condon, who is an alum of the law school. For more details, click here. Posted By : Michael McCann
Not Another Post on Salary Arbitration - Oh, Yes - Brian Bruney
Message posted on : 2010-02-17 - 08:50:00
The Washington Nationals went to a hearing yesterday with Brian Bruney, the relief pitcher that they acquired from the New York Yankees in December. Bruney hopes to compete for the closer role with Matt Capps, another new acquisition for the Nationals, although the former closer for the Pirates certainly has more experience in that role.
The Nationals, a team that seems to enjoy going to hearings and may have another before the end of the week with Sean Burnett, offered Bruney $1,500,000. That figure is a modest increase over the $1,250,000 that Bruney made with the Yankees last year. Bruney is seeking $1,850,000 leaving a midpoint of $1,675,000. The panel that heard the case was Dan Brent, Sylvia Skratek, and Steven Wolf. The panel might be inclined to look at Bruney's numbers last year, a 5-0 won-loss record and a 3.92 ERA in his role as setup man, and feel that he should receive more than a modest increase. However, an early season injury and the fact that he was not on the Yankees' roster for both the Twins or the Angels playoff series and turned in a poor single game performance in the World Series might well be used favorably by his new team. This must have been an interesting hearing for the Bruney side of the table that listened to a presentation by a team he has never pitched for. Will Bruney get his number on his birthday? I will add more in the comments as usual this year. Posted By : Ed Edmonds
Cody Ross - Arbitration Hearing Three
Message posted on : 2010-02-15 - 16:59:00
Cody Ross and the Florida Marlins headed to their hearing this morning. According to reports that I have read, the arbitration panel for this case was Margaret Brogan, Howard Edelman, and James Oldham. The Marlins, like their counterpart in Tampa Bay, use a file-and-go philosophy with their salary-arbitration players. Ross played in 2009 for $2,225,000, and he is seeking a raise to $4,450,000. The Marlins responded with an offer of $4,200,000 leaving a midpoint of $4,325,000 and a gap of $250,000. Another similarity with the Rays is the relatively small gap in the two exchanged figures number. The gap in the Upton-Tampa Bay case was $300,000. The Rays won their case on Saturday to maintain the only perfect record in arbitration. The Philadelphia Phillies had a 7-0 record until they lost their case to Ryan Howard in 2008.
Ross's primary 2009 and career statistics are:
G - 151 - 483; PA - 559 - 1506; 2B - 37 - 99; SO - 122 - 354; HR - 24 - 72; BA - .270 - .264; OBP - .321 - .323; SLG - .469 - .484
Ross and Corey Hart are in the same service class. The Hart decision last week did not help the Marlins.
I will place additional analysis in the comments section related to this post. There is one more hearing that will most certainly happen this week because the Astros have a similar philosophy to the Marlins and Rays. That one is between Houston and Wandy Rodriguez on Wednesday. Other cases that have not settled yet are the Angels and Erick Aybar and Jeff Mathis, the Nationals and Brian Bruney and Sean Burnett, and the Chicago Cubs and Ryan Theriot. Posted By : Ed Edmonds
Cardozo Law Symposium: The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses
Message posted on : 2010-02-14 - 00:16:00
I look forward to delivering the keynote address and serving as the new media panelist at a symposium hosted by the Cardozo Arts and Entertainment Law Journal on Thursday, March 4. The symposium is titled "The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses". New York CLE credit is available for those who attend. Here are some more details:
AGENDA
7:00 p.m. to 7:05 p.m. - Introduction:Shira Siskind, Executive Editor
7:05 p.m. to 7:30 p.m. - Keynote Speaker: Michael McCann, Legal Analyst for Sports Illustrated; Associate Professor of Law, Vermont Law School 7:30 p.m. to 9:00 p.m. - Panel Discussion: The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses
9:00 p.m. to 10:00 p.m. - Cocktail Networking Reception
Distinguished Panelists
Symposium Chairs:
Shira Siskind Executive Editor, CardozoArts & Entertainment Law Journal
Porcher L. Taylor, III, J.D Associate Professor, University of Richmond
Moderator:
Fernando M. Pinguelo, Esq. Partner and Chair of the Entertainment Law Group at Norris McLaughlin & Marcus, P.A.
Panelists:
Michael McCann News Media Panelist Legal Analyst for Sports Illustrated; Associate Professor of Law, Vermont Law School Dorothy Crenshaw PR/Crisis Management Representative Panelist CEO and Creative Director, Crenshaw Communications
Ayala Deutsch Professional NBA Counsel Senior Vice President and Chief Intellectual Property Counsel, National Basketball Association (invited)
Stanley Kroenke Professional Team Owner Panelist Owner & Governor, Kroenke Sports Enterprises, LLC (invited)
For more details, including info on obtaining CLE credit, click here. The Journal will be publishing an article authored by Porcher Taylor and Fernando Pinguelo titled, "The Reverse-Morals Clause: The Unique way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals." Posted By : Michael McCann
B.J. Upton and Rays - Second Hearing This Year
Message posted on : 2010-02-13 - 09:09:00
B.J. Upton and the Tampa Bay Rays conducted the second hearing of this year's salary arbitration season yesterday. The case was heard by a veteran panel of Elizabeth Neumeier, Elliott Shriftman and Gil Vernon. The decision is due today. Tampa Bay's "file-and-go" philosophy forced the hearing once the two sides arrived at the filing deadline. Upton requested $3,300,000. The Rays countered with $3,000,000. That produced a midpoint of $3,150,000. The "file-and-go" system helped produce the short gap between the two parties. Either way, the Rays have only $300,000 at stake if they lose, something that they have never experienced in their four previous hearings including a win last year over Dioner Navarro. Will the Upton case produce the Rays' first loss? Upton's 2009 season was a disappointment when compared with 2007 and 2008. He had three-year lows in runs scored, batting average, on-base percentage, and slugging percentage. He has only a total of 20 home runs in those two years compared to his 24 in 2007.
This one is so close that it is difficult to predict. With teams owning a 57-43% edge over the history of arbitration, the Hart victory over the Brewers yesterday, and Upton plate decline last year, I am leaning towards the Rays on this one. Posted By : Ed Edmonds
Roger Goodell Given an Extension
Message posted on : 2010-02-12 - 11:53:00
Numerous news outlets are reporting that the NFL has given commissioner Roger Goodell a five-year extension. This extends his contract through March 1, 2015. The Commissioner is finishing his fourth year in office. This is an interesting development with the current labor situation in the NFL.
Commissioner Goodell presented his annual state-of-the-league address today. He was more upbeat about the negotiations compared to the comments earlier this week by DeMaurice Smith, the NFLPA's executive director. Posted By : Ed Edmonds
Corey Hart, the Brewers, and Baseball Salary Arbitration - Hart Wins
Message posted on : 2010-02-12 - 09:38:00
Corey Hart and the Milwaukee Brewers conducted the first arbitration hearing of the year yesterday. For the Brewers, this is only the fourth hearing in the history of the franchise, and it is the first for general manager Doug Melvin, who took over for Dean Taylor in 2002.
Hart has 4 years and 38 days of major league service. According to my research, there are 18 outfielders in the service group between 4 and 5 years. I would submit that this is the main starting point for setting up a list of comparable players. Perhaps the most interesting to consider from this list are the following players: Jeff Francoeur (New York Mets), Conor Jackson (Arizona), Jeremy Hermida (Boston), Ryan Ludwick (St. Louis), Cody Ross (Florida), and Josh Willingham (Washington). I will detail my analysis in the comments' section of this blog.
If the arbitration panel consisted of a representative group of Brewers' fans who have commented on this case, Hart would be in trouble. It seems to be that at least 67% of the comments that I have read are against Hart. Part of that, of course, is that many fans feel that all players make too much. The reported panel that heard the case is Elizabeth Neumeier, John Sands, and Sylvia Skratek. Neumeier is a veteran panel member. According to my research her panel record is 13-9 in favor of teams. Sands' record is 4-2 in favor of teams, and Skratek decided her first case in 2008 when she agreed with the Astros in their hearing against Jose Valverde.
I am going to lean slightly toward the Brewers in part in deference to their history of trying to settle all of their cases and an analysis of the numbers. However, if the panel thinks that Francoeur and Willingham are two strong comparable players, they could go with the outfielder.
I have added five comments detailing my analysis of the outfielders in the same service group, the panel of arbitrators, and the general managers involved in the previous four decisions by the Brewers. Posted By : Ed Edmonds
A Correction Regarding the Brewers
Message posted on : 2010-02-11 - 13:51:00
One of the great challenges with trying to have correct information about over 3,200 players who have filed for salary arbitration during the history of the process is tracking down the correct information for every single player. Plus, you want to check and recheck to debug your data set. After listing that the Brewers had four cases in their history instead of three, I sent emails to both Adam McCalvy of MLB.com and Tom Haudricourt of the Milwaukee Journal Sentinel. They rightfully asked me for my source information about Tim Johnson. Well, that started me on a check of my data that produced the following story -
The files of the late Doug Pappas that I originally found via SABR listed the player as T. Johnson of Mil. I figured that this was Tim Johnson of the Brewers. The Pappas file is based on the work of Thomas Timmerman for 1978. I had relied on it as pretty accurate for years while I was searching for multiple sources to verify "my" information. Anyway, Tim Johnson was with the Brewers from 1973 through the beginning of the 1978 season. However, I had not found an article that verified that he went to arbitration. I did know that he was traded to the Toronto Blue Jays for Tim Nordbrook on April 28, 1978. Another "highly reliable" source listed the Johnson as Cliff Johnson of the Yankees. However, a New York Times article listed Cliff Johnson as signing his contract on February 18, 1978. “Yankees Sign Johnson For Reported $100,000,” New York Times, Feb. 19, 1978, 28. There is no mention of salary arbitration.
Over this past summer I asked one of the research assistants working with me to go through the microfilm editions of The Sporting News to fill in gaps. In particular, I asked her to initially focus on 1978 and 1979. Those years are problems because it predates the LexisNexis and Westlaw databases that supported so much of my work over the years. So, today, I went to the data that was downloaded this summer, and I think I found a "more" credible source. In an article detailing the Twins by Bob Fowler (“Twins Seeking Strength in Numbers,” The Sporting News, March 11, 1978, 61, col 5), I found a discussion of the "four" Twins that went to arbitration that year, not the "three" listed in most sources. So, it appears that the "real" Johnson that year was Tom or Tommy Johnson. So, I have to correct my data and agree that the Brewers have only been to three hearings prior to this year. By the way, Tom Johnson was released by the Minnesota Twins on February 8, 1979. Griffith did not take kindly to player who took him to a hearing.
So, I have to change my data for the Twins and the Brewers, and I am going to return to my analysis of Corey Hart. I will post that for those of you who tolerate my salary arbitration postings on this blog. Posted By : Ed Edmonds
Court Rejects EA's First Amendment Defense
Message posted on : 2010-02-11 - 13:48:00
On Tuesday, Mike mentioned the federal district court's denial of the NCAA's motion to dismiss in the O'Bannon case. As part of that ruling, Keller v. EA, filed in the same court, was consolidated with the O'Bannon case. In a separate ruling, the court held that the First Amendment does not trump the right of publicity under California law in the context of video game use of players' identities.
First, the court correctly explained that EA's use does not meet the transformative use test:
Here, EA's depiction of Plaintiff in "NCAA Football" is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state....EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game's setting is identical to where the public found Plaintiff during his collegiate career: on the football field.
The court also properly rejected EA's assertion that use of players' identities in video games is a matter of public interest:
The game does not merely report or publish Plaintiff's statistics and abilities. On the contrary, EA enables the consumer to assume the identity of various student athletes and compete in simulated college football matches. EA is correct that products created for entertainment deserve constitutional protection. (citation omitted) But it does not follow that these protections are absolute and always trump the right of publicity. EA cites cases in which courts held that the public interest exception protected online fantasy baseball and football games. Although these games are more analogous to "NCAA Football," the cases are nonetheless distinguishable. In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, a declaratory judgment action, the plaintiff sold "fantasy baseball products" that included the names and statistics of major league baseball players.... C.B.C. Distribution is inapplicable here. Success in "NCAA Football" does not depend on updated reports of the real-life players' progress during the college football season. Further, EA's game provides more than just the players' names and statistics; it offers a depiction of the student athletes' physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field. EA's use of Plaintiff's likeness goes far beyond what the court considered in C.B.C. Distribution.
Posted By : Rick Karcher
Reminder: Sports Law Symposium in Chicago Tomorrow
Message posted on : 2010-02-11 - 12:22:00
Just a reminder that the Depaul Sports Law Symposium, "Sports and the Great Recession," is scheduled to kick off on Friday at 9 am. Although "Snowmageddon" may prevent some panelists from getting to Chicago in time, it should still be a great event. To register (free for Depaul law students, $20 for other law school students, and $60 for general attendees) visit this site. Illinois CLE credit has been requested. Posted By : Geoffrey Rapp
First Salary Arbitration Hearing Set For Tomorrow
Message posted on : 2010-02-10 - 22:32:00
It appears that the first salary arbitration hearing of the year will take place tomorrow between Corey Hart and the Milwaukee Brewers. Tom Haudricourt of the Milwaukee Journal Sentinel and Adam McCalvy, the Brewers' MLB.com contributing writer, have both been covering the Hart negotiations. Both writers reported that chief negotiator Teddy Werner imposed a January 29 deadline on Hart's agent Jeff Berry of Creative Artists Agency (CAA). The deadline passed without a settlement, so both sides have headed to Florida for the hearing. Werner and Assistant General Manager Gord Ash worked on the negotiations with Berry. Although they will both attend the hearing, the case will be presented by the New York law firm that they hired. Without a settlement, this will be the Brewers first hearing in twelve years.
The Brewers have only four previous hearings in their history marking them as one of the teams with the lowest total appearances. They have won two and lost two. The most recent hearing was in 1998 with Jose Mercedes. Mercedes won his arbitration decision before a panel of Roger Abrams, Jerome Ross, and Gil Vernon. Mercedes requested $1,050,000 and the Brewers offered $615,000. The other player to win a decision against the Brewers was Tim Johnson in 1978. Johnson received his figure of $92,500 instead of the Brewers offer of $62,000. J. Fred Holly was the arbitrator.
Mike Fetters lost to the Brewers in 1994, and he ended up with $400,000. Fetters had requested $825,000, but arbitrator Howard Block sided with Milwaukee. Jim Gantner lost his argument in front of Daniel Collins in 1991. The exchanged figures were $1,000,000 by the Brewers and $2,000,000 by Gantner.
Hart settled last season with the Brewers just before his hearing for the midpoint figure of $3,250,000. The Brewers offered $2,700,000, and Hart was seeking $3,800,000. In 2008, Hart earned $444,000. His salary in 2007 was $395,000, a raise from the $329,500 figure he received in 2006. He was drafted in the eleventh round in 2000.
In 2006, Hart played in 87 games for the Brewers with a .283 batting average, 9 home runs, and 33 RBIs. He became a regular the following season while slamming 24 home runs, knocking in 81, and batting .295. He also scored 86 runs while hitting 33 doubles. During his 2008 season, Hart's totals in batting average (.268) and home runs (20) dropped off, but he did improve his RBI totals (91) and doubles (45) while participating in 157 games. He was also selected for the National League All Star team. Based on the solid back-to-back performances, Hart saw his salary increase substantially because of his initial eligibility for salary arbitration. However, in 2009, Hart lost time due to a midyear appendectomy. In 115 games, Hart's batting average dropped to .260 although his on-base percentage of .335 was a solid improvement over his 2008 figure of .300. His power numbers of 24 doubles and 12 home runs were below his 2007-2008 totals while his RBIs fell to 48. His six season totals for stolen bases are 64, but he has been caught 28 times.
If there is a hearing tomorrow, I will post an analysis of Hart's case based on my research and the contributions of Notre Dame law students. Posted By : Ed Edmonds
New Law Review Article: The NBA and the Single Entity Defense: A Better Case?
This Article will explore the relationship between the National Basketball Association, its independently-owned teams, and associated corporate entities, including the Women's NBA, NBA Properties, NBA Developmental League, NBA China, and single entity analysis under section 1 of the Sherman Act. Section 1 chiefly aims to prevent competitors from combining their economic power in ways that unduly impair competition or harm consumers, be it in terms of raised prices, diminished quality, or limited choices. Single entities are exempt from section 1 because they are considered “one,” rather than competitors, and thus their collaboration does not implicate anticompetitive concerns.
In American Needle v. NFL, the Supreme Court will decide whether the National Football League, its teams, and associated corporate entities, constitute a single entity. Other leagues, including the NBA, may be impacted by the Court's decision. If the NBA were a single entity, it could potentially execute exclusive contracts with video game companies and apparel companies, restrain players' salaries and employment autonomy, and impose heightened age restrictions on amateur players who seek employment in the NBA, all without concern for section 1 scrutiny.
In a recent feature in the Yale Law Journal, I discourage the Court from recognizing the NFL as a single entity but recommend that Congress consider targeted, sports league-related exemptions from section 1. In this Article, I survey whether the NBA's globalized business agenda and the league's exposure to competition from foreign professional basketball leagues necessitate that NBA teams act in unison and with a “shared consciousness.” The necessity of cooperation, at least for certain international endeavors, may distinguish NBA teams from teams in NFL, which remain more anchored to domestic operations. To the extent Congress considers legislative exemptions for professional sports leagues, the experience of the NBA, a trailblazer in promoting a league product abroad, may lend insight on how antitrust law should regulate leagues in the years ahead.
* * *
To read the article, click here. As it is a draft, I would welcome comments and suggestions by e-mail (mmccann[at]vermontlaw.edu).
Posted By : Michael McCann
O'Bannon v. NCAA Moves to Discovery
Message posted on : 2010-02-09 - 10:30:00
Pete Thamel of the New York Times writes this morning about a federal judge denying the NCAA's motion for dismissal in O'Bannon v. NCAA, a lawsuit which concerns whether former NCAA student-athletes should receive compensation for the NCAA's use of their images and likenesses. The ruling means that the NCAA's licensing contracts, and many other types of documents, will be subject to discovery.
Pete interviews me for the story, which is excerpted below.
* * *
“This is a truly historic day — to our knowledge, no one has ever gotten behind the scenes to examine how student-athletes' current and future rights in their images are divided up and sold,” said Jon T. King of Hausfeld LLP, one of the lead lawyers representing O'Bannon.
The N.C.A.A.'s licensing deals are estimated at more than $4 billion, although all of those deals may not be made public in this case. The N.C.A.A. said in a statement that it was confident in its case. “We're pleased that the court recognized defects in some of the claims made by plaintiffs and dismissed those,” said a statement provided by the N.C.A.A. spokesman Erik Christianson. “The court's other rulings at this preliminary stage of the cases do not diminish the N.C.A.A.'s confidence that we will ultimately prevail on all of the claims.”
The significance of this case appears to transcend financial reward, as its cuts to the core of the N.C.A.A.'s amateurism ideals.
“We think the N.C.A.A. will defend this case saying they are protecting amateurism and trying to prevent excess commercialization,” King said. “That's their mantra in regard to the big-business aspect. We think their hypocrisy will be fully exposed once their numbers are put in the public eye.”
Michael McCann, a professor at Vermont Law School who specializes in sports law, called Monday's ruling a “setback” for the N.C.A.A. He said that the case would probably be followed closely by members of Congress who were interested in the N.C.A.A.'s tax-exempt status.
“I think it's an important case because it gets at the core of the student-athlete mission and the issue that new players have in terms of waiving away potential benefits they may enjoy when they're out of college,” McCann said.
* * *
To read the rest, click here (or turn to page B14 of today's New York Times). To read an SI.com column I wrote on O'Bannon v. NCAA, click here.
Posted By : Michael McCann
Seton Hall Sports and Entertainment Law Annual Symposium
Message posted on : 2010-02-09 - 08:52:00
On Friday 26, the Seton Hall Journal of Sports & Entertainment Law will be hosting its annual symposium. Here's some additional information:
The event will examine the National Football League's Rooney Rule, discuss financial and estate planning for athletes and entertainers, and consider the bankruptcy and relocation issues related to the Phoenix Coyotes bankruptcy litigation. The Symposium will address these topics in the form of three panels, moderated by Professor Timothy Glynn, Seton Hall University School of Law, Lance T. Eisenberg, Esq., Drinker Biddle & Reath, LLP, NFLPA Registered Player Financial Advisor, and Professor Geoffrey C. Rapp, University of Toledo College of Law, respectively. Additionally, Lou Lamoriello, CEO, President, and General Manager of the New Jersey Devils, will appear as the Symposium's keynote speaker. 5 CLE credits will be awarded for full day attendance.
Featured speakers include:
Professor Robert Boland, New York University Preston Robert Tisch Center for Hospitality, Tourism, and Sports Management
Robert Talley, Head Football Coach, Stonehill College
Rich Ensor, Commissioner, Metro Atlantic Athletic Conference
Charlotte Westerhaus, Vice President of Diversity and Inclusion, NCAA
Robert Raiola, CPA, Van Duyne, Behrens & Co., P.A., Co-Author, Winning Tax Strategies and Planning for Athletes and Entertainers
Justin McCarthy, RR Advisory Group, LLC
Jim Spanarkel, Financial Advisor and former Duke Basketball Player
Brian Leonard, Fullback, Cincinnati Bengals (Rutgers University)
Aaron Van Duyne III, Senior Principal, Van Duyne, Behrens & Co., P.A.,(Entertainment Industry Issues)
Professor Stephen J. Lubben, Seton Hall University School of Law
Professor Marc Edelman, Barry University School of Law and Sports Attorney
Andrew Sroka, Esq., Senior Associate, Brown Rudnick LLP Posted By : Michael McCann
Who Dat Days at Tulane
Message posted on : 2010-02-08 - 20:13:00
We don't get many snow days down here in New Orleans. We get Mardi Gras days (and hurricane evacuations). For the first time, though, Tulane is having a Who Dat day. Here's the official email from Scott Cowen, Tulane's President:
February 8, 2010
Good Morning, There are certain moments in life that are transcendent and transformative and are too wonderful for words. Sunday's Super Bowl victory was such a moment. It was a victory that went far beyond football, highlights, statistics or trophies. This world championship, coupled with the election of a new mayor by an overwhelming majority, is about the progress and future of our beloved city.
This was a moment for all New Orleanians. The way this city and this team, our team, have embraced one another is unique in all the world. While most professional athletes discuss themselves and their gifts at post-game press conferences, our Saints invariably talk about their city and what its recovery has meant to them and to the nation.
This is what I believe we will be celebrating when we welcome our hometown heroes at tomorrow's parade. In addition, we will be congratulating our new mayor, Mitch Landrieu, as he leads us into the future. So in recognition of New Orleans, our recovery, our revival and the unity we displayed in one incredible weekend at the polls and on the national stage, I am going to close the university (uptown, downtown and primate center) tomorrow at 1 p.m.
This will allow all New Orleans-area Tulanians time to gather with family, friends and neighbors (are there any other categories of people in New Orleans?) and celebrate what is truly a historic moment in the long life and new life of our city. Enjoy the parade but most of all enjoy the moment. It truly is our time!
Geaux New Orleans, Geaux Saints, Geaux Tulane,
Scott Posted By : Gabe Feldman
March Trademark Infringement Madness
Message posted on : 2010-02-04 - 10:36:00
With March just weeks away, attention will quickly move from the Superbowl to the NCAA basketball tournament.
Interestingly, the Illinois High School Athletic Association, which has used the term "March Madness" for its own basketball tournament since the 1940s, holds the federal trademark registration for the term. However, the 7th Circuit has excluded rights to the use of the term in connection with the NCAA tournament from the scope of IHSA's registered mark. IHSA v. GTE Vantage, 99 F.3d 244 (7th Cir. 1996).
This year, I've noticed once againt that many businesses are offering NCAA-themed products and services, some of which come close to using the NCAA's trademark. One of the more amusing offerings, via our local paper, comes from the medical group Genito-Urinary Surgeons Inc. The practice is offering "Vasectomy Madness" procedures in the days leading up to the Tournament. Surgery would include a doctor's note authorizing the patient to miss two days of work for recuperation, which would also facilitate some TV viewing. Similar services have been offered by other clinics in Oregon, Texas, and other states, as CNBC reported last year.
The practice group hasn't called its offering "Vasectomy March Madness", and its more limited use of only part of the NCAA's mark would likely be protected as parody. Since it's unlikely the NCAA itself will market such surgical services, the likelihood of consumer confusion seems low. See the "CHEWY VUITTON" case for guidance on the law. Posted By : Geoffrey Rapp
Who Dat and Other Links
Message posted on : 2010-02-03 - 18:15:00
A few quick links as Super Bowl Sunday approaches.
Finally, I have joined the twitter world. For those of you interested in getting sports law updates and information delivered to you 140 words or less at a time, you can follow me here. Posted By : Gabe Feldman
Jay Reisinger Blog
Message posted on : 2010-02-03 - 09:00:00
Sports lawyer Jay Reisinger [at left in photo], who has represented Andy Pettitte and Sammy Sosa, among other big league players, has started a new blog, with an emphasis on sports law. Here are a couple of his first posts:
Debunking Salary Arbitration Myths - Part I. Excerpt: "Even more beneficial to the clubs is the fact that salary arbitration contracts can be non-guaranteed. The guarantee is matter of negotiation, but the majority of salary arbitration contracts are non-guaranteed. Thus, if a player fails to perform in spring training (or engages in some prohibited activity which results in injury), the club has the right to terminate the contract and pay 1/6 of the value of the contract to the player."
Adrian Mutu (Romanian soccer player who allegedly failed a drug test and has been punished by FIFA). Excerpt: "Mutu was not party to the contract between Chelsea and Parma, yet the CAS held that Mutu, as a result of his testing positive for cocaine, was liable for the amount of the transfer fee (and other related damages)."
Is President Obama Serious about Taking on the BCS?
Message posted on : 2010-02-02 - 15:30:00
In a terrific column, Sports Illustrated's Andy Staples addresses President Obama's interest in replacing the BCS with a college football playoff. Andy interviews me for the column. Here's an excerpt:
* * *
Second, the federal deficit will not rise one penny if the Justice Department investigates the BCS. The Justice Department employs people, and those people must do something. If they are ordered to investigate the BCS, there is an opportunity cost exacted -- they could have investigated something else -- but not a monetary one. Also, it is the government's responsibility to monitor the activities of a multi-billion business that involves more than 100 publicly funded universities.
Third, [BCS executive director Bill] Hancock's response doesn't actually answer the question; it simply misdirects. So, as a public service for Hancock and the bowl lovers everywhere, I called Michael McCann, the Vermont Law School professor who writes about legal issues for SI.com, and asked him to explain how the BCS might defend itself against an antitrust challenge.
"The people that support the BCS would say that we wouldn't have a national championship without it," McCann said. "All it does is reflect the college football standings. It doesn't do anything other than that."
McCann also summarized what the Justice Department might argue in an antitrust proceeding against the BCS. "It's arguably a cartel," McCann said. "It's producers and sellers joining together to control a product's production, price and distribution. ... In terms of anticompetitive effect, it affects prices. It also creates financial and recruiting disadvantages for some schools. There are economic disparities between BCS members and non-BCS members . . . ."
* * *
Besides, even BCS leaders will admit that there's more money in a playoff. The NCAA basketball tournament brings in an estimated $545 million a year, and college football is exponentially more popular than college basketball. The BCS brings in only $150 million a year, but it funnels most of it to the most powerful conferences. Government intervention would strip those conferences of their power. After that, given a choice between less money and more money, here's betting college presidents forget about their arguments against a playoff and opt for more money.
There is another solution, and it probably will work. Compromise. Offer a plus-one -- a four-team, bracketed playoff -- and offer to split the revenue 11 ways. Then the president could declare victory, and the relationship with the most powerful bowls would be preserved. That could very well result in what Hancock calls "bracket creep," but one man's creep is another man's market correction.
MLB Properties v. Upper Deck Trademark Infringement Suit
Message posted on : 2010-02-02 - 08:30:00
Maury Brown of the Biz of Baseball blog reports that Major League Baseball Properties, MLB's trademark licensing and enforcement entity, filed a trademark infringement suit yesterday against trading card manufacturer Upper Deck. The suit was filed in the United States District Court for the Southern District of New York, and alleges that two new sets of trading cards produced by Upper Deck – the Ultimate Collection and Signature Stars sets – improperly use MLB trademarks without permission.
The issue arises out of MLB's decision last summer to name Topps as its exclusive licensee for official MLB sanctioned trading cards. At the time, Upper Deck threatened to file an antitrust lawsuit against MLB, but in lieu of a suit the company apparently elected instead to produce two sets of cards without MLB logos or trademarks, but featuring photos of players in their official MLB uniforms. MLB Properties's suit alleges that this unauthorized depiction of official MLB uniforms constitutes trademark infringement.
It will be interesting to see if Upper Deck now elects to assert an antitrust counterclaim challenging MLB's decision to grant Topps an exclusive license. Such a claim would be similar to the exclusive license at issue in American Needle v. NFL, and might also raise interesting issues regarding the scope of MLB's historic antitrust exemption (although MLB Properties notably elected not to rely on the antitrust exemption in another recent trademark related antitrust suit, Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290 (2d Cir. 2008)). Posted By : Nathaniel Grow
Recap of UF Sports Law Symposium on Collective Bargaining Agreements in MLB, NBA, and NFL
Message posted on : 2010-02-01 - 23:21:00
Last Friday, I had a terrific time at the University of Florida Levin College of Law participating in the law school's sports law symposium, which was headlined by former MLBPA executive director Donald Fehr and which concerned the collective bargaining agreements of Major League Baseball, the National Basketball. I was joined by a number of contributors to Sports Law Blog and other persons in sports law. Darren Heitner, Adam Bregman, Christie Sanders, Lourdes Cortizo and other members of the UF Sports and Entertainment Law Society did an excellent job organizing the event, a video for which will be available in the near future.
In the meantime, Zak Kurtz of Sports Agent Blog has a terrific recap and analysis of the symposium. Zak details comments raised and positions taken during the panels and also in Mr. Fehr's keynote address. For those interested in the upcoming CBA discussions in baseball, the NBA, and NFL, Zak's article is a must read. Posted By : Michael McCann
Cause and Effect Sports Law: Who Dat Style
Message posted on : 2010-01-28 - 11:51:00
As a trial lawyer who has seen any number of moves/reasons for a continuance of a trial, fellow members (and future members) of the trial bar take note: sporting events that enjoy the support of a community in which that team or school resides may provide a "basis" for a continuance.
HT: The Volokh Conspiracy.
Posted By : Tim Epstein
3rd Annual Tulane Law School National Baseball Arbitration Competition
Message posted on : 2010-01-27 - 13:24:00
The 3rd Annual Tulane Law School National Baseball Arbitration Competition took place this past weekend at Tulane Law School. The event was a huge success, with 38 teams from schools across the country participating in a simulated baseball salary arbitration competition. Special thanks to Professor Roger Abrams and Jon Fetterolf for serving as the judges for the final rounds of the competition on Sunday and for putting on an entertaining and educational presentation for all of the competitors on Saturday afternoon. Thanks also to Armando Velasco, Jeffrey Sundram, Blake Simon, Chris Weema, Melissa Desormeaux, Danielle Moore and the Tulane Sports Law Society for hosting a great event.
All of the judges raved about the quality of the presentations throughout the competition, and we are proud to announce the winning teams:
Semi-Finalists: Suffolk Law School; Ave Maria Law School
Runner-Up: Notre Dame Law School Winner: Denver Law School
And, to top it off, the Saints beat the Vikings on Sunday night. All in all, a good weekend in New Orleans… Posted By : Gabe Feldman
West Legal Education CLE on "Guns Up! Legal Issues Surrounding the Firing of Texas Tech Head Football Coach Mike Leach"
Message posted on : 2010-01-26 - 20:45:00
Rick and I are hosting an on-line 1-credit continuing legal education tomorrow (Wednesday January 27) from 12 p.m. to 1 p.m. Eastern Time with West Legal Center to discuss the assorted legal implications of Mike Leach's firing. A number of us on Sports Law Blog have discussed the Mike Leach firing. Here is West's description of the CLE:
On December 28, 2009, Leach was suspended indefinitely by Texas Tech pending investigation of alleged inappropriate treatment of a player. School officials gave Leach an ultimatum--apologize to James in writing by December 28 or Leach would be suspended. Leach refused to do so. Leach immediately sought an injunction that would allow him to coach in the 2010 Alamo Bowl. However, on December 30, Texas Tech fired Leach, calling his refusal to apologize to James "a defiant act of insubordination." On January 8, Leach formally filed suit against Texas Tech for wrongful termination. He claimed that school officials not only fired him without cause, but issued defamatory statements in a willful attempt to keep him from being hired elsewhere.
Rick Karcher and Michael McCann will take you into the world of high profile employment and sports contracts. They will provide an update on the controversy and offer analysis on the upcoming legal process.
For more on Wednesday's CLE, click here. It should be a good event and we hope to keep it interesting and informative. Posted By : Michael McCann
Mike Leach, football coaching, and law school
Message posted on : 2010-01-26 - 08:47:00
Geoff already commented on Mike Leach's new article in Texas Tech Law Review, talking about how law school prepared him to be a football coach. Geoff noted that Leach reports as an actual in-class event a version of a scene from The Paper Chase ("Go call your mother . . ."), so I wonder about that part of the paper. I also wonder about Leach's description of the Socratic-method-on-steroids class (civ pro, teaching Pennoyer); I went to law school for 3 years and have taught for 9 and have never actually seen anything remotely approaching what he described, either as a student or in observing my colleagues.
Paul Caron offers his comments, along with a link to Leach's paper. Caron highlights Leach's direct comparisons between coaching and law school, including his suggestion of a certain rugged individualism to law school and the "certain amount of treachery and adaptation it takes to be successful" in both.
I would echo Leach's wind-up to any students: A law degree is a degree in problem-solving, so go find problems that you are passionate about and help solve them. To me, that is the goal for lawyers. Posted By : Howard Wasserman
New SI.com Column on Impact of Javaris Crittenton's Plea Deal on NBA Career of Gilbert Arenas
Message posted on : 2010-01-25 - 21:55:00
I have a new SI.com column on the impact of Javaris Crittenton's plea deal on Gilbert Arenas. Here's an excerpt:
* * *
Crittenton will also meet with NBA commissioner David Stern, who has suspended Arenas indefinitely. Crittenton's comments during the meeting could damage Arenas' chances for reinstatement if he portrays Arenas as a dangerous bully or aggressor. The Wizards may also find that Crittenton's comments lend justification for a termination of Arenas' contract under Clause 16 of the Uniform Player Contract, a topic I detailed in a previous column.
What Mike Leach Learned (Oops) in Law School: Is the Socratic Method to Blame for his Treatment of Players?
Message posted on : 2010-01-25 - 10:48:00
The Texas Tech Law Review has published an article by now former coach Mike Leach, A Legal Education Applied to Coaching College Football, 42 TEXAS TECH LAW REVIEW 77 (2009). Read in light of how Leach's season ended, as discussed by Mike here, and Howard here and here, the article is a very interesting glance at Leach's coaching philosophy and how his law school experience at Pepperdine may have shaped his attitude towards players.
Leach writes,
Both law school and college football view it as important to harden and battle test your charges the best you can before you turn them out into the real world.
He then recalls a discussion from his first year contracts class:
In my class, the unlucky student called upon to recite Pennoyer [v. Neff] was brutalized from beginning to end. When the student finished, the professor said in a rather sinister tone, “Sit down, Mr. Smith. Call your parents and tell them that there is very little chance of you ever successfully becoming an attorney. However, I understand there are openings for assistant managers at McDonald's.” This was said in front of approximately ninety people. . . . Certain individuals could not deal with having to stand up in front of people to recite a case, not to mention handle the combative nature of the comments and questions from the professor and fellow students.
DePaul University College of Law Sports Law Sympsium on "Sports and the Great Recession"
Message posted on : 2010-01-25 - 09:00:00
Geoff and I look forward to joining others in what should be a great sports law symposium at DePaul University College of Law on Friday, February 12. The title of the symposium is "Sports and the Great Recession." Here are the details:
The 2010 DePaul Sports Law Symposium will explore how the recent economic downturn has affected sports leagues and teams, and how it will affect them going forward.
DATE: Friday, February 12, 2010 TIME: All Day, starting with check-in at 8-9 a.m. LOCATION: University Center, 525 South State Street, Chicago, IL 60605.
Sports and the Great Recession
9:00 A.M. – 10:20 A.M. – LEAGUES AND VENUES PANEL
Moderator: Michael Jacobs, Distinguished Research Professor, DePaul University College of Law
Panelists: Natara Holloway – Director of Corporate Development, National Football League Jon LeCrone - Commissioner, Horizon League Brad Traviolia – Deputy Commissioner, CFO and COO, Big Ten Conference
10:30 A.M. – 12:00 P.M. – TEAMS PANEL
Moderator: Howard Rubin, Associate Professor/Associate Dean, DePaul University College of Law
Panelists: Gabrielle Dow – Vice President of Marketing, Baltimore Ravens Martin Greenberg – Member, Greenberg & Hoeschen, LLC Mike Lufrano – Senior V.P., Community Affairs/General Counsel, Chicago Cubs John Mack – Senior Associate Athletic Director, Northwestern University Marti Wronski – Vice President, General Counsel, Milwaukee Brewers
1:00 – 2:30 P.M. – ACADEMIC PANEL
Moderator: Bill Savage, Senior Lecturer, Northwestern University
Panelists: Michael McCann - Associate Professor, Vermont Law School/Legal Analyst, Sports Illustrated Matthew Parlow – Associate Professor, Marquette University Law School Geoffrey Rapp – Associate Professor, University of Toledo Law School
To register please see the Registration Form. Posted By : Michael McCann
Is Bowl Swag Appropriate for Schools in Final BCS Standings?
Message posted on : 2010-01-24 - 14:32:00
David Grant of the Christian Science Monitor recently wondered why NCAA student-athletes can receive gifts worth up to $500 if they are able to play in Bowl Games, but during the season those same players are much more restricted in what they can receive because of their student-athlete status.
Here are some excerpts from David's story:
* * *
During the majority of their college football careers, players at the football powerhouses populating the final BCS standings have to eschew free stuff.
They do so because getting untoward benefits as student athletes can jeopardize their future eligibility to run, block, and tackle and, by extension, their opportunity to reap a bigger future payday in the NFL. (And forget sponsorships. College athletes lose their ability to take the field by entering into corporate pacts.)
But during bowl season, game organizers shower these same athletes with up to $500 in free merchandise that athletes then wear and use on campuses across the country, giving brand names a boost in the process. What happens at a bowl gift party that makes it any different from the other 364 days a year?
"When players come down to these bowl games, you don't want to just lock ‘em in the hotel room," says Geoffrey Rapp, a law professor at the University of Toledo who contributes to the Sports Law blog. "Part of the fun is going some place warmer, getting to to go Disney land, and if there was a strict ban on any contributions or any value given to players, you'd have to be very vigilant on your players. But that said, iPods and PlayStation 3's and other electronics seems to be a bit inconsistent with the spirit of the NCAA rules."
* * *
But the financial-aid restriction is a blanket one, whereas the prohibition on free gets lifted for a glimmering moment during bowl season.
"On one level, it's good that players are getting something for all they are contributing to the school," says Michael McCann, a law professor at Vermont Law School who studies sports law. "But it invites the question of why this is an exception and where should you draw the line. Should there even be a line?"
* * *
To read the rest, click here. Posted By : Michael McCann
The worst sports league idea ever?
Message posted on : 2010-01-22 - 16:44:00
The Wall Street Journal Law Blog asks, "Would an All-White Professional Basketball League be Legal?" Apparently, someone wants to start a professional basketball league limited to "players that are natural born United States citizens with both parents of Caucasian race . . . ."
Bearing in mind the possibility that this is nothing more than a joke, I'd say Title VII, not to mention various state anti-discrimination laws and a disastrously immoral business model, will likely make this league a no-go. Posted By : Geoffrey Rapp
University of Miami Symposium
Message posted on : 2010-01-21 - 14:56:00
The Entertainment and Sports Law Society at the University of Miami School of Law is hosting its 13th Annual Symposium on Friday, February 5. The registration form, containing a list of the speakers, may be accessed here. It looks to be an outstanding event! Posted By : Rick Karcher
FCC Ends Cable's 'Terrestrial Loophole' Used to Prevent Sports Programming Blockage
Message posted on : 2010-01-20 - 16:33:00
The Federal Communications Commission took a major step to curb the power of cable operators to block sports programming access to rival telephone and satellite operators, a practice that has long irritated sports viewers. This policy, known as the "terrestrial loophole" was permitted until this order. The FCC took the action, according to the Wall Street Journal, after firms like Verizon, Direct TV and Dish Network, complained that the cable operators improperly blocked their broadcasts of local teams they either own outright or have rights to broadcast) which the Commission, in its 4-1 decision, concluded violated anti-discrimination provisions of section 628 of the Communications Act. Section 628 requires cable operators to act in the public interest and engage in "unfair acts" against satellite operators, including discrimination in the prices, terms and sale of cable programming to those operators.
The FCC's order, all 87 pages in length, rejects the claims of exclusivity by cable operators of certain programming that gives them an competitive advantage over their rivals. Challenges are likely on both administrative law and constitutional grounds. In its report, the FCC, anticipating such litigation, took note that the restrictions are content-neutral and subject to intermediate scrutiny under Time-Warner v. FCC, 93 F. 3f 957 (D.C. Cir. 1996). Although I have only skimmed the order, it has all the makings of a repeat of the litigation over the must-carry rules that made two Supreme Court appearances in the 1990s. Stay tuned.
Posted By : Mark Conrad
Lincecum Asks for $13,000,000
Message posted on : 2010-01-19 - 19:16:00
Today was the exchange number day for salary arbitration-eligible players and their teams. As expected, Tim Lincecum asked for a record amount ($13,000,000). The Giants countered with $8,000,000 leaving a midpoint of $10,500,000. As is always the case in the final hours and minutes before the exchange deadline, a significant number of deals were completed. Last Friday, 128 players filed for arbitration. That is the largest number in more than one decade. When the dust settled today, a total of 46 exchanged numbers. I was a bit surprised that so many deals got completed because through Monday evening I had seen modest activity. I will be providing some more information after I have tracked down all the pre-exchange deals. Posted By : Ed Edmonds
U.S. Secretary of Education Arne Duncan Speaks out Against NBA Age Eligibility Rule
Message posted on : 2010-01-18 - 21:32:00
ESPN's Henry Abbott has a great interview with U.S. Secretary of Education Arne Duncan, who is a critic of the NBA's eligibility restriction, which requires that a player be 19 years old plus one year removed from high school in order to be eligible for the NBA Draft (the rule was negotiated in 2005; previously, players could join the NBA right after finishing high school). The NBA and the Players' Association will be negotiating a new CBA in the near future and the age limit will likely be a source of tension between the two bargaining units.
Here are some excerpts from Abbott's interview with Secretary Duncan:
* * *
Henry Abbott: The negotiations for the NBA's next collective bargaining agreement will be mainly about money. (Owners, who have been dipping into their own pockets to keep the fires burning through a frosty economy, want more of it.)
But perhaps the hottest issue will be about a different set of numbers: The age of NBA players. Kobe Bryant, Kevin Garnett, LeBron James, Dwight Howard and the like were once drafted straight out of high school. Four-and-a-half years ago, the NBA declared players had to be one year out of high school before going pro. The result has been a rash of "one-and-done" NCAA players. The NBA has expressed an interest in extending the ban for an additional year, which will be an issue in upcoming negotiations with the player's union.
On Thursday, the latter group appeared to gain an influential ally in U.S. Secretary of Education Arne Duncan. Once a star player at Harvard -- one of his coaches there was current Celtic assistant coach Tom Thibodeau -- and a former professional player in the Australian league, Duncan is passionate about basketball. Speaking to university and NCAA officials in Atlanta, the former chancellor of Chicago's public schools said that the higher education of some basketball players was a "farce."
* * * Henry Abbott: But you would let players go straight to the NBA from high school if they were LeBronesque.
Secretary Duncan: Yes. That tiny tiny percentage.
Henry Abbott: Who would determine if they're in that category or not?
Secretary Duncan: I think the market would determine that. If they want to do that, great. If it works out, great. But 99.99% of players don't fall in that category. I'm interested in better serving those guys. I want to give them the kind of quality experience, in the community, in the college, on the court
that's going to really help prepare them for whatever comes next, whether that's the pros or getting a good job. Being part of the rich cultural and social life of a university has incalculable benefits.
If folks are doing the wrong thing, you stain the university, you stain the programs, you stain the NCAA.
This has got to be about values. The vast majority of programs, I think, are instilling the right values. I am forever personally indebted for my experience to my coaches and my athletic director. Every day I think about the lessons that I learned playing. I want that to be the norm. I want every kid to have the kinds of opportunities that I was lucky enough to have.
* * *
To read the rest, click here. To read an op-ed by Secretary Duncan on The Hufington Post (hat tip to Ryan Rodenberg) click here. For a similarly provocative interview between Abbott and Sonny Vaccaro about the NBA's eligibility rule and Brandon Jennings, see Part I, Part II, and Part III.
Posted By : Michael McCann
UF Sports Law Symposium to Examine Legal Playbook as Collective Bargaining Agreements expire
Message posted on : 2010-01-17 - 18:45:00
Several of us will be speaking at the University of Florida Levin College of Law on January 29 at the 2010 UF Sports Law Symposium. The general topic is what to expect in the collective bargaining of new agreements in the NBA, NFL, and Major League Baseball. It should be a great event (and for attorneys near Gainesville, there will be CLE credit). Here's a press release:
GAINESVILLE, Fla. — On Jan. 29 sports agents, litigators, salary cap analyst and sports law students will huddle up at the University of Florida Levin College of Law to get ready for a whole new ball game.
In the next two years, time will expire on the Collective Bargaining Agreements affecting the negotiation of salaries and playing conditions for professional athletes. The 2010 UF Sports Law Symposium, “Discussion: Bargaining Collectively,” presented by UF's Entertainment & Sports Law Society, will bring together sports law experts and representatives from the National Football League, National Basketball Association and Major League Baseball to discuss why CBA's exist, how they help players and owners, and to identify contract terms that will likely be argued before the agreement expires. The free event, set to kick off at 11 a.m. at UF Law's Chesterfield Smith Ceremonial Classroom 180, will offer CLE credits.
“The 2010 UF Sports Law Symposium will be an excellent forum for students, athletes, professors and others interested in sports law to network and learn from the brightest minds in sports law,” said Darren Heitner, president of UF Entertainment & Sports Law Society.
The keynote speaker for this year's symposium will be Harvey W. Schiller, Ph.D., who has served as president of the International Baseball Federation since 2007 and is also chairman of the board and CEO of GlobalOptions Group, a multidisciplinary international risk management and business solutions company located in New York. Prior to joining GlobalOptions in 1994, Schiller held posts at Turner Broadcasting System, served as the executive director/secretary general of the United States Olympic Committee and was the commissioner of the Southeastern Conference.
“It's an honor to be able to address future sports-business leaders in Gainesville,” Schiller said. “We live in very challenging times where the changes in the way we conduct business occurs in minutes. Adapting and understanding those changes is critical to our success as professionals. It is my hope that forums like the one being held at the University of Florida, provide the framework for the growth of the industry and to inspire further discussion and opportunity.”
Closing the day-long symposium will be Donald Fehr who served as the general counsel of the Major League Baseball Players Association beginning in 1977, and as its executive director for 26 years from December, 1983. In his role as executive director, Fehr served as the players' chief negotiator in collective bargaining with major league owners and was responsible for contract administration, grievance arbitration and pension and health care matters. Fehr will address the role of collective bargaining in professional team sports, and discuss his experiences in his role with the players association.
“Interesting things are on the horizon for the four majorprofessional team sports in North America,” Don Fehr said.
For more information regarding the symposium, contact Darren Heitner at heitner@gmail.com
Posted By : Michael McCann
New SI.com Column on Carlos Beltran and his Dispute with the Mets over his Knee Surgery
Message posted on : 2010-01-16 - 09:49:00
I have a new SI.com column on Carlos Beltran and whether he needed permission for the Mets for knee surgery and what the Mets can do in response. Here's an excerpt:
* * *
Interestingly, and understandably, the collective bargaining agreement does not expressly resolve how teams and players should reconcile differences in opinions over the appropriate course of a player's treatment and who should perform a particular surgery. Instead, the agreement essentially encourages players and teams to work out their differences in good faith and with an appreciation for reasonableness, taking into consideration the desires of both parties.
One recommendation, as provided in an attachment to the agreement, is that players and teams in disagreement turn to a third physician expert. The attachment also states, clearly, that teams should not force a player to have surgery performed by a team doctor, but should instead designate another physician to perform the surgery.
Given the contradictions in accounts between Beltran and the Mets, it is unclear whether either side satisfied their duties. Still, we know that the Mets have known from some time about Beltran's knee trouble and about his physician-patient relationship with Steadman. Beltran, in fact, was evaluated by Steadman last June. Also, following the completion of the 2009 season, Beltran had three MRIs on his right knee, with the third MRI, conducted on Dec. 10, revealing a worsening osteoarthritis in his knee. Presumably Beltran and the Mets, including the team's own doctors, have been in communication about how to treat the condition. It thus seems unlikely that the Mets were completely caught off-guard that Beltran would have knee surgery, or that the surgery would be performed by Steadman.
On the other hand, if the respective doctors for the Mets and Beltran disagreed as to Beltran's treatment, a third physician expert may have been appropriate. It would be notable if the Mets requested that Beltran see a third physician or if they designated another physician to perform the knee surgery, and if Beltran declined to meet with a third physician or the physician designated to perform the surgery.
New SI.com Column and Washington Post Q/A on Gilbert Arenas's plea deal and potential sentence
Message posted on : 2010-01-15 - 23:47:00
I have a new SI.com column on the guilty plea by Gilbert Arenas. Here's an excerpt:
* * *
Judge Morin seems unlikely to impose a sentence in excess of the prosecutors' recommendation. While Arenas pleaded no contest in 2003 to a misdemeanor charge in California for illegally possessing a concealed weapon, he otherwise lacks the kinds of aggravating factors that would warrant a lengthy sentence. But there is no guarantee that he will avoid one. Recall what happened to Michael Vick: After he pleaded guilty to dogfighting charges, prosecutors recommended that he be sentenced to 12-to-18 months in prison. Judge Henry Hudson disagreed, instead sentencing Vick to 23 months. Therein lies the risk of entering into a plea deal: a defendant and prosecutors can "make a deal," but the judge decides whether to accept it.
Clarksburg, Md.: When do you think David Stern will decide what the "indefinite suspension" means? Meaning do you have any idea when he might change it to a certain amount of time and if so, how long? I know you can only speculate.
Michael McCann: I think he'll wait until the sentencing is determined (Arenas is scheduled to be sentenced on March 26). I think the odds are very much against Arenas returning this season, even if the sentence he receives is extremely light. To me, the question is whether the suspension will continue into the 2010-11 season. Stern will likely provide Arenas an opportunity to meet with him in private (similar to that provided by NFL commissioner Roger Godell to Michael Vick) and that meeting would have a major impact on when Arenas returns.
New SI.com Column on whether Barry Bonds, Roger Clemens, or Rafael Palmeiro might confess to steriod use after Mark McGwire's admission
Message posted on : 2010-01-15 - 14:24:00
I have a new SI.com column titled "Don't expect Bonds, Clemens to offer their own confessions". Here's an excerpt:
* * *
Take Bonds. He remains a defendant in a criminal prosecution on perjury and obstruction of justice charges, specifically concerning whether he knowingly lied while testifying before a grand jury in 2003 that he did not use steroids. The trial, U.S. v. Bonds, has been delayed while the U.S. Court of Appeals for the Ninth Circuit considers an appeal by prosecutors that U.S. District Judge Susan Illston mistakenly barred BALCO steroids-test and other implicating evidence as inadmissible hearsay (i.e., unreliable out-of-court statements made by persons not in the trial). The odds are heavily in favor of the Ninth Circuit sustaining Judge Illston's ruling, meaning prosecutors will likely be left with limited evidence to secure a conviction.
If, however, Bonds were to admit to having knowingly used steroids, and to doing so prior to when he testified before the grand jury, he would also admit to having knowingly lied to that grand jury. Given the favorable situation of his trial, Bonds seems unlikely to admit to having committed a crime for which he probably would not otherwise be convicted and which carries with it a possible prison sentence. Therefore, whatever public relations benefit Bonds might obtain by "coming clean" would be outweighed by the legal implications of such an admission.
New SI.com Column on Gilbert Arenas being charged with a felony and impact of a potential plea deal on his NBA career
Message posted on : 2010-01-14 - 21:38:00
I have a new SI.com column on Gilbert Arenas being charged with a felony and the potential impact of a plea deal on his NBA career. Here's an excerpt:
* * *
The Wizards would not have history on their side if they sought to use Clause 16 against Arenas, as it has seldom been employed to void NBA contracts. One unsuccessful attempt was in 1997, when the Golden State Warriors terminated the contract of Latrell Sprewell after he choked his coach, P.J. Carlesimo. On behalf of Sprewell, and consistent with the collective bargaining agreement, the players association filed a grievance. The grievance was heard by an independent arbitrator, Fordham University School of Law dean John Feerick, who reinstated Sprewell's contract on grounds that the Warriors lacked just cause in utilizing Clause 16. Feerick's decision suggests that the Wizards would have the odds stacked against them: If chocking a coach can't get a contract voided under Clause 16, would possessing unloaded guns do so?
Another attempt by an NBA team to void a contract occurred in 2004, when the Boston Celtics tried to terminate Vin Baker's contract. They did so after Baker, who battled problems with alcohol, failed to keep himself in adequate condition. The Celtics, however, never explicitly signaled their grounds for attempting to void Baker's contract, though Clause 16, which also requires that a player keep himself in first class physical condition, was a likely source. The Celtics-Baker situation was different from the Arenas-Wizards situation in a number of ways, since it concerned substance abuse and the Celtics attempted to void Baker's contract only after repeatedly disciplining Baker. Ultimately the Celtics and Bakers worked out an agreement whereby Baker reportedly received $16 million of the remaining $35 million on his contract.
It's possible that the Wizards could work out a similar buyout with Arenas, though expect the players' association to strongly oppose Arenas agreeing to any buyout. The players' association would be worried that teams would attempt to force buyouts with other players if the Wizards succeeded in doing so with Arenas.
Procedural Flaws in High School Transfer Decisions
Message posted on : 2010-01-14 - 09:48:00
I was forwarded a wonderful September, 2009 decision by an Indiana Appeals Court this week, Watson v. Indiana High School Athletic Association. Valerie Watson, a single mother supporting three children and one grandchild, decided to move from Elkhart to South Bend, IN, after facing salary reductions and foreclosure on her home. The RV industry -- a major employer in Elkhart -- is in shambles, and Ms. Watson was unable to find a home to rent and wanted the assistance of relatives in South Bend in caring for her children. Her daughter, six-foot-two-inch tall Jasmine sought to play basketball at her new school in South Bend, but the IHSAA found the transfer occured "primarily for athletic reasons" and declared her ineligible.
The IHSAA's evidence on this point was a bit flimsy, consisting of what the court viewed as unsubstantiated double hearsay:
For example, the IHSAA relied on Coach Fielstra‘s statements that another basketball coach from a different school told Fielstra that one of Jasmine‘s grandmothers told him (the other coach) that the family was looking for another school for Jasmine because she was not getting the ball enough at Elkhart Memorial.
Watson sought and successfully obtained a preliminary injunction allowing her to play basketball at her new school, with the court finding the IHSAA to have acted in an arbitrary and capricious manner. The Appellate court, in the linked decision, affirmed that injunction. The court includes an interesting discussion of the mootness issue present in so many eligibility-centered lawsuits. By the time it rendered its decision this fall, Jasmine had graduated from high school (and has begun what looks to be a promising career at the University of Massachusetts). The court noted that the IHSAA had filed a counter-claim for attorney fees against Watson, so success for the IHSAA on appeal could have significant monetary implications should the Association have the gall to try to collect its fees from a cash-strapped single mother. The court also opined that transfers for financial pressures were likely to be a recurring problem, and that high school athletics are a matter of "great public interest."
Lyle Denniston over at the fantastic SCOTUSblog has posted a recap of this morning's oral argument in American Needle v. NFL. By this account, it sounds like the Court was generally skeptical of the NFL's case.
A transcript of the oral argument should be available later this afternoon.
Update (12:40pm): The Associated Press has also posted a short recap of the argument, agreeing that the Court generally seemed unwilling to extend the NFL single entity status.
Update (3:15pm): Two more recaps of this morning's oral argument are now available. Like the earlier recaps, Reuters reports that the Court appeared unlikely to rule in favor of the NFL. However, Zach Lowe at AmLawDaily suggests that the Court may be inclined to adopt something along the lines of the case-by-case approach advocated by the Solicitor General.
Update (4:00pm): The transcript from this morning's oral argument is now available. Posted By : Nathaniel Grow
The Baseball Research Journal issue on Baseball and the Law
Samuel A. Alito, reviewing the Federal League case that was decided by the Supreme Court in 1922, concludes that the unanimous opinion written by Oliver Wendell Holmes, though often criticized and even derided, was closely argued and cogent.
Roger I. Abrams analyzes the decision by arbitrator Peter Seitz in the groundbreaking Messersmith arbitration case of 1975. Mark Armour looks at the effort of two American League umpires to unionize in the 1960s.
The late Gene Carney, in a masterful narration of events as revealed through documents recently purchased by the Chicago History Museum, takes his readers into the world of the private detectives hired by White Sox owner Charles Comiskey in the wake of the Black Sox scandal of 1919.
Ross Davies contributes his own detective work, as it were, that leads to a surprising conclusion about the composition of Harry Blackmun's opinion in the Flood case of 1972. In his portrait of William R. Day, arguably the most knowledgeable fan in the history of Supreme Court justices, Davies shows us baseball notes that justices exchanged as they sat hearing cases on the bench. While researching the baseball background of Supreme Court justices, Davies discovers that the story that William Howard Taft played baseball at Yale is, in fact, groundless.
For those interested in acquiring a copy of the journal, you can order it here. Posted By : Nathaniel Grow
American Needle v. NFL: Even More Coverage
Message posted on : 2010-01-13 - 01:15:00
Later today, the Supreme Court will hear oral arguments in American Needle v. NFL. We have covered the case in great detail on Sports Law Blog. If you're interested in more analysis, here are some other links:
9) The Marketplace Program from American Public Media has a feature on the case. Posted By : Michael McCann
New SI.com Column on Mark McGwire and Legal Fallout of His Admission
Message posted on : 2010-01-12 - 01:49:00
I have a new SI.com column that looks at the fallout of Mark McGwire admitting that he used steroids. Here's an excerpt.
* * *
3) What would have happened had McGwire talked about the past?
If McGwire had denied using steroids -- that is, lie -- he would have set himself up for perjury charges. But keep in mind, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. That means that McGwire or any other witness from the March 17, 2005 hearing would need to face perjury charges by March 17, 2010. It is unclear whether the government would have had sufficient physical evidence to investigate and seek a grand jury indictment against McGwire; there does not appear to be a Brian McNamee-like figure from McGwire's past.
Alternatively, if McGwire had admitted that he used steroids -- that is, told the truth -- he would have been subject to investigation by federal authorities as to which steroids he purchased, when and how he purchased them, from whom he purchased them and similarly probing questions. In theory, McGwire could have faced criminal charges under the Anabolic Steroid Control Act. While some might point out that no player who admitted to using steroids has been prosecuted for purchasing or using steroids, keep in mind that those players -- including Alex Rodriguez and Andy Pettitte -- had not yet admitted to using steroids in 2005; McGwire and his attorneys did not have the benefit of observing those players' legal experiences.
McGwire's admissions of steroids and subsequent cooperation with federal authorities could have impacted other players and the steroids scandal in general. For instance, it may have aided federal investigations into other players alleged to have used steroids, including Barry Bonds and Roger Clemens. It may have also helped the Mitchell Commission in its internal investigation. On the other hand, by admitting that he used steroids and subjecting himself to potential prosecution absent cooperation with authorities, McGwire might have put himself in the uncomfortable and unenviable position of implicating friends and former teammates.
For even more on American Needle, I have a column up on the Huffington Post discussing some of the common misconceptions surrounding the case.
Here's an excerpt:
This case is a lottery ticket for the NFL. If they win, it could be a significant victory....If the NFL loses, nothing really changes. The issue before the Supreme Court is not whether the NFL's exclusive licensing arrangement is legal under the antitrust laws. The issue is whether the licensing arrangement should even be subject to scrutiny under the antitrust laws. If the NFL wins, they escape Section 1 scrutiny. If the NFL loses, their arrangement will then be analyzed under the rule of reason, where a court will weigh the pro-competitive benefits of the agreement versus its anticompetitive effects.
There is no reason to believe that the Supreme Court's rejection of the single entity argument makes it any more (or less) likely that American Needle would prevail in the underlying antitrust case (or that a suit against the NFL's exclusive deal with EA would be successful). Rather, it only subjects the NFL to the same antitrust scrutiny they have been subjected to for the last 50 years. American Needle could win the underlying case, but only if it could prove that the anticompetitive effects of the NFL's exclusive apparel licensing deal outweighed its pro-competitive benefits.
Posted By : Gabe Feldman
More American Needle v. NFL
Message posted on : 2010-01-11 - 13:03:00
With the American Needle v. NFL Supreme Court hearing just a couple of days away, there are some good commentaries to read including:
1) Bill King of the Sports Business Journal has a thoughtful and extensive piece titled, "Supreme Court Weighs a Game Changer" He interviews a number of folks for the piece. Here are my comments:
Others aren't as sure that the four decidedly conservative judges are certain to side with the NFL. Michael McCann, a Vermont law School sports law professor who recently analyzed the case in the Yale Law Journal, allows that a conservative viewpoint might lead those justices to favor competition between businesses and discourage collaboration, aligning them with the viewpoint of American Needle.
Still, McCann and Gary Roberts agree that the NFL likely views this court as wary of constraining a business on antitrust grounds when the damage to consumers isn't blatant, making this an opportune time for the league to take its shot.
“My sense is that they view this particular court and this particular case as providing a very good argument for single entity when compared to other cases,” McCann said, “and other potential compositions on the court.
2) Drew Brees of the New Orleans Saints (and also of the NFLPA's executive committee) has a thoughtful op-ed in the Washington Post on the case. Here's an excerpt:
[I]f the Supreme Court agrees with the NFL's argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.
What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don't reward them when they're promoted and set higher ticket prices (including preventing teams from competing through ticket discounts).
3) For a related piece about the NFL's potential problems in securing a new collective bargaining agreement, see Jeff Levine's detailed analysis on The Biz of Football. Here's an excerpt:
The biggest signs that point to a lockout are: (1) the hiring of Bob Batterman, (2) the fact that the NFL is accumulating a war chest in preparation for a lockout and most significantly . . .
It is certainly true that the NFLPA should be alarmed by the NFL's hiring of Batterman as outside counsel. As Smith alluded to in his email, Batterman was instrumental in designing and implementing the NHL's lockout strategy. It seems the NFL is now duplicating this strategy as it waits for the current CBA to expire before it will engage the union in any real discussions.
The NFL can afford to wait for the expiration of the CBA partially because of the significant contracts it signed with various sponsors and partners. For instance, the NFL recently signed a deal with DirecTV that pays the league $1 Billion regardless of whether football is played in 2011. This type of deal provides the NFL with plenty of leverage in dealing with the union.
For other Sports Law Blog coverage on American Needle v. NFL, click here. Posted By : Michael McCann
Ed Edmonds on Curt Flood Act and Rights of Minor League Baseball Players
Message posted on : 2010-01-08 - 16:39:00
Our own Ed Edmonds was interviewed by Garrett Broshuis, a pitcher in the San Francisco Giants organization and author of the Life in the Minors Blog, on the Curt Flood Act and Rights of minor league baseball players.
You've written about entities within minor league baseball lobbying Congress during the passage of this act. Can you talk about the effects of these efforts?
Minor League Baseball was quite concerned about the possibility of any changes to the basic “farm system” relationship of minor league teams to major league teams. In particular, major league teams cover the salaries of minor league players, and this is a critical feature to the existing business model of minor league teams. When the legislation was first considered in Congress, Minor League Baseball made sure that it approached the many Congressmen and Senators with minor league franchises within their Congressional districts or states to make sure that any possibility of a lawsuit by a minor league player could not happen by changing the status of major league players. Most courts that have considered baseball's historic antitrust exemption have held that it covers the entire business of baseball. The legislation basically left a slight bit of ambiguity by stating that baseball players are “subject to the antitrust lawsto the same extent such conduct . . . would be subject to the antitrust laws if engaged in by persons in any other professional sports businessaffecting interstate commerce.”
To read the rest, click here. Posted By : Michael McCann
Has the Mayweather-Pacquiao Drug Controversy Touched on The Cure for a Lack of Uniform Rules?
Message posted on : 2010-01-07 - 20:12:00
Consider the following hypothetical situation in light of the lingering dispute between Manny Pacquiao and Floyd Mayweather over random drug testing. Following his dramatic back-to-back knockout losses to Carl (The Cobra) Froch and “King” Arthur Abraham, former undisputed middleweight champion Jermain (Bad Intentions) Taylor is a given a bout contract for his upcoming fight with Andre Ward that contains the following provision: “Parties agree that, in addition to the pre-fight medical examinations required by the California State Athletic Commission, the Parties shall submit to pre-fight medical testing identical to that which is mandated by the New York State Athletic Commission.” Taylor's team promptly calls Ward's promoter to ask why this provision is in the contract since California already has its own regulations for pre-fight medical examinations. The response: Ward is concerned that Taylor can be vulnerable to serious brain damage due to the nature of his recent knockout losses and believes that California's pre-fight medical testing does not go far enough, as evidenced by the fact that Edwin Valero was cleared to fight in California on three occasions before evidence of an old head injury was found in a pre-fight CT scan in New York.
If the above hypothetical contract provision sounds unreasonable and/or unnecessary, then you may be one of those who agrees with Pacquiao's position that if testing is not mandated by the Nevada State Athletic Commission (“NSAC”), he need not agree to it by contract. If, on the other hand, you believe that the above hypothetical contract provision is the end result of an appropriate abundance of caution, you may now be able to see how American boxing promoters can take it upon themselves to close the gap between the nation's athletic commissions in pre-fight medical and drug testing: by compelling more thorough testing by contract. The current controversy between Mayweather and Pacquiao may have, in short, laid the blue print for how to insure the safety of boxers no matter where they fight in the United States. Boxing is abundant with skeptics however, thus this possibility begs the question: Is the contracting of more rigorous pre-fight medical and drug testing on a regular basis desirable, doable, and realistic? An analysis follows...
Gilbert Arenas Suspended by NBA: Will Contract Termination Follow?
Message posted on : 2010-01-06 - 22:46:00
Update 1/7/2010:
I have a new Q/A on SI.com which delves into a Washington Post report that Javaris Crittenton may have had a loaded gun.
I also did an interview with Scott Drake on the Legal Broadcast Network on this topic:
Original Post from 1/6/2010: A few hours ago, I did a Washington Post Q/A on the Gilbert Arenas suspension and addressed some questions about his contract and what the Wizards can do. Arenas was suspended indefinitely by the NBA because of his behavior over the last day. After sounding contrite on Monday and Tuesday, he made some questionable choices, such as pretending (clearly in jest, but not with great timing) to shoot his teammates during Tuesday night's Wizards-76ers game and making some questionable tweets. Here's an excerpt of the Q/A:
Washington, D.C.: What kind of leverage does this give the team, if it's looking for a way to dump Gilbert's contract? Does he have to be convicted of a felony before any morals clause kicks in?
Michael McCann: This is the real interesting issue, in my view. Clause 16 of the Uniform Player Contract empowers teams to void contracts and is vaguely worded to include not only criminal behavior, but behavior that is immoral. It has been seldom used, however (a recent example was the Celtics using it to terminate Vin Baker's contract, and that wasn't entirely successful, since it lead to a financial settlement with Baker). Hypothetically, if the Wizards terminate Arenas' contract through Clause 16, the Players Association will vehemently object and file a grievance, which will be heard by an independent arbitrator. Latrell Sprewell (with the Players' Association help) was able to get his contract with the Warriors reinstated, even though he choked a coach, which is arguably worse than what Arenas did. Bottom line: if Arenas contract can be voided, think about what teams will do with other controversial players who have long-term, lucrative contracts.
_______________________
Hypothetically: If you were Gilbert's lawyer, what would your next move be?
Michael McCann: I would tell him to say absolutely nothing, to turn off Twitter, to get off Facebook, to stop having any public presence. And I'm sure his lawyer told him all of this, but the lawyer can't control the client, especially a client who is as gregarious and idiosyncratic as Arenas. Right now,
Arenas has to be thinking about appearing before a court which could sentence to him to prison. Or before a commissioner who could suspend him for months. Or before a Wizards team executive who could try to void a contract that will pay him close to $100 million in its remaining term. It's time to get serious and to get off Twitter.
Bloomberg Legal Expert and Supreme Court Reporter Greg Stohr on American Needle v. NFL
Message posted on : 2010-01-05 - 12:38:00
Greg Stohr of Bloomberg has a thoughtful commentary on American Needle v. NFL. He interviews several people, including me, for it. Here are some excerpts:
* * *
A broad ruling could insulate professional sports leagues from antitrust claims over video-game licenses, television rights, franchise relocation and even player salaries. Only Major League Baseball is exempt from antitrust laws now.
The NFL dispute “could become the most important sports law case in U.S. history,” said Michael McCann, a professor at Vermont Law School in South Royalton and the author of a law review article on the case.
* * *
The NFL took the unusual step of joining American Needle in requesting Supreme Court review. The league is seeking a broader legal shield, one that might even preclude antitrust accusations that teams conspired to hold down player salaries. The league's current labor agreement expires after next season.
That possibility prompted the players' unions for the NFL and three other leagues to urge the Supreme Court to rule for American Needle, or at least limit use of the “single entity” defense. The unions' lawyer, Jeffrey Kessler, called the NFL's arguments a “Trojan horse” aimed at securing a sweeping antitrust exemption.
“It's hoping for an even broader ruling that would give it immunity in player markets, in broadcast markets and in stadium markets, far beyond the ruling of the 7th Circuit,” Kessler said.
That wouldn't be so bad, said Gary Roberts, dean of the Indiana University School of Law in Indianapolis and co-author of a sports law casebook. He said that the NFL is essentially “one business” and that players shouldn't have more legal rights than the unionized workforce of any other employer.
“Why should the highest paid unionized workers have more weapons at their disposal than the guys working in auto factories or coal mines?” Roberts said.
* * *
To read the rest of the piece, click here. To read other Sports Law Blog coverage on American Needle, click here.
Stohr, incidentally, is an attorney and author of a terrific and even-handed book on affirmative action--specifically the litigation concerning the University of Michigan's policies--titled A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge (a preview of which can be read on Google Books). If you're interested in that topic, I'd strongly recommend picking up Stohr's book.
Posted By : Michael McCann
New SI.com Column on Gilbert Arenas and His Guns
Message posted on : 2010-01-04 - 17:34:00
I have a new SI.com column that looks at the potential punishments Gilbert Arena could face at the hands of the legal system, the NBA, and the Washington Wizards. The piece also discusses implications for NBA players who carry guns. Here's an excerpt:
* * *
The Wizards could also attempt to sanction Arenas. The franchise could do so through a suspension or, more controversially, through a termination of Arenas' lucrative contract.
Although I have not reviewed Arenas' contract, Clause 16 of the NBA's Uniform Player Contract cannot be modified for individual player contracts and describes the circumstances in which a team can terminate a deal. One such circumstance occurs if a player "at any time, fails, refuses, or neglects to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship ..."
To be sure, the players' association would vehemently object to the Wizards' using Clause 16 to escape financial obligations, with the union seeking to protect Arenas and other controversial players who could be subject to contractual termination by their teams. Indeed, the very concept of guaranteed NBA contracts could be jeopardized by the termination of Arenas' deal.
Sports Law 2010: Does the NBA Still Have Market Power?
Message posted on : 2010-01-04 - 12:33:00
In the 2002 case Fraser v. Major League Soccer, the First Circuit Court of Appeals upheld a jury's finding that Major League Soccer clubs compete in an international market for men's professional soccer labor and thus lack enough "market power" to collude illegally under Section 1 of the Sherman Act.
Since Fraser, few courts have addressed the geographic market definition issue in a labor-side antitrust matter. However, as we approach the 2010s, this issue seems likely to resurface.
Presuming the Supreme Court does not cut away too much at sports-antitrust law when it rules in American Needle v. Nat'l Football League (oral arguments begin Jan. 13, 2010), I predict the issue of geographic market definition will emerge as an important one for sports law in the upcoming decade. Posted By : Marc Edelman
Update: Time Warner and Fox Settle
Message posted on : 2010-01-02 - 06:19:00
A few hours after midnight on January 1st, Time Warner and Fox settled their cable carriage issue. Terms were not announced, but most likely the agreement involves the payment of a retransmissions fee to Fox of between 30 cents and $1.00 per subscriber.
College football fans in New York, Orlando and Los Angeles can breath easier. Posted By : Mark Conrad
The Fox-Cable Wars -- Sports Fans' Woes
Message posted on : 2009-12-31 - 10:09:00
In addition to sports law, I teach and write about communications law issues. With a new year approaching, a nasty access war between Fox and Time-Warner Cable, one of the nation's largest cable operators is simmering, which may wreck havoc on college football fans (and devotees of other Fox programs) once the new year begins.
Basically, it comes to a game of economic chicken. The 1992 Cable Act (and subsequent FCC regulations) gives over-the-air broadcasters a choice of carriage options: the first is known as "must-carry," meaning that in a given market served by a cable operator the over the air station must be carried on that cable system, but does not receive any compensation. However, a broadcaster may opt for an alternative, known as "retransmission consent," which involves a negotiated payment to that station for carriage on the cable system. Here, if the station elects this option, the cable operator may decline the request, and that station is off the cable system. If this occurs (and it has on rare occasions over the last 15 years), cable subscribers will be greatly inconvenienced, since they have to get an additional equipment (such as an antenna or converter box) to access that station.
The greatly majority of stations have opted for must-carry, but a few stations, sensing their economic power, have sought retransmission consent. Most of those disputes have been settled a few days after the station was blacked out. But this particular dispute may have far greater ramifications.
With dwindling audiences for network and over the air television in general, these stations are seeking greater revenue streams than just the advertising model of the past. Fox is seeking $1.00 per cable customer from Time-Warner in cities such as New York and Los Angeles. If not, Fox is prepared to let some major stations opt-out -- leaving sports fans without some marquis events, such as the Fiesta, Sugar and Orange Bowls in the next few days. If Time-Warner agrees, this would set a major precedent because other cash-strapped networks and stations could very well want the same thing. That could help the networks raise billions of dollars, but also result in higher fees for cable subscribers.
If indeed Fox makes good on its threat, look for Congress to hold hearings. Look for the sports entities (e.g. Major League Baseball) to be concerned and possibly recalculate rights fees if Fox's ratings drop. Look for some subscribers to ditch their cable operators for satellite (or for nothing at all). Something that has not been addressed involved the constitutionality of this schema. I think that if this problem festers, look for a legal challenge to the must-carry rules. In the 1990s, the Supreme Court upheld their constitutionality by narrow 5-4 votes, using an intermediate scrutiny standard, (see Turner Broadcasting v. FCC I and II), and a very elastic one at that. The majority opinions gave great deference to the FCC's reasons, but since then the composition of the court has changed to, arguable, a more sympathetic First Amendment court and the numbers of television options
(including more cable channels, the advent of digital broadcasting and Internet streaming options) that may render this regulatory framework obsolete. If that happens, then the gloves can really come off. Stay tuned.
Posted By : Mark Conrad
New SI.com Column on Mike Leach and Texas Tech Legal Battle: Was He Wrongfully Terminated?
Message posted on : 2009-12-30 - 21:00:00
I have a new SI.com column that looks at the Mike Leach firing from Texas Tech and the possibility of a wrongful termination lawsuit. Here's an excerpt:
* * *
Was Texas Tech legally entitled to fire Leach for cause? In addition to requiring Leach to follow Texas Tech procedures and polices and to provide responsible treatment of players' health, Leach's contract lists the circumstances under which Texas Tech could dismiss him for cause:
1) The commission of a major NCAA violation or an excessive accumulation of secondary violations by Leach.
2) Knowingly condoning NCAA violations by any staff member under his direct control.
3) Failure to take appropriate disciplinary action against any staff member committing NCAA violations.
4) Failure to take appropriate disciplinary action against football student-athletes.
5) Indictment for a felony criminal act.
6) A misdemeanor involving moral turpitude.
Worded literally, the six circumstances for cause might not cover Leach's alleged misbehavior. Leach has neither been charged with a felony nor a misdemeanor (Nos. 5 and 6), nor is there any indication that he will be. Even if Leach is eventually sued by James in a civil claim, such as for false imprisonment or intentional infliction of emotional distress, such a claim would not constitute a criminal charge. There is also no indication that Leach failed to take appropriate disciplinary action against football players in this situation (No. 4). Similarly, there are no allegations of major NCAA violations or accumulation of secondary violations (No. 1).
An arguable nexus between James' behavior and the "for cause" stipulations could emerge in Nos. 2 and 3. The NCAA has developed player safety rules that Leach arguably breached when he instructed staff members to isolate Leach. The NCAA is also considering new rules that would demand particularly safe care for players who have suffered concussions.
Update 12/31/09: I was interviewed by Scott Drake on the Legal Broadcast Network this afternoon to discuss the dispute:
Posted By : Michael McCann
Texas Tech coach fired: Updated and moved to top
Message posted on : 2009-12-30 - 16:32:00
Texas Tech has suspended football coach Mike Leach for its bowl game, because of Leach's alleged treatment of a player (receiver Adam James, the son of ESPN college football analyst Craig James) who had suffered a concussion and was unable to practice. The James family alleges that Leach ordered the player to sit in an equipment closet or equipment bin (reports conflict) and was told that if he came out, he would be kicked off the team. Leach's attorney insists that Leach had James sit in a cooler, darker area than the practice field because it would be better for the player, given his sensitivity to light. The school has begun an internal investigation.
Two questions, not really going to the substance of anything.
First, is it me, or are we beginning to hear more complaints about, and challenges to, barbaric coaching methods? Are players (themselves or through their parents) beginning to stand up to what often can best be described as hazing, if not outright brutality by the adults in charge? Are players less fearful of complaining, knowing that the school might somewhat have their back? And are schools beginning to take player complaints seriously, perhaps out of fear of liability? Kansas' Mark Mangino lost his job amid reports of being verbally and physically abusive towards players. There was the initial story of South Florida Coach Jim Leavitt slapping a player (reported by the player's father), although that story quickly petered out. And now this. Maybe it's just a blip, but maybe it marks a sea change in the relative power relationships in college sports.
Second, an interesting twist in the Texas Tech story is that Craig James no longer will work the game for ESPN, because there now is a personal issue between James and the school that implicates his objectivity in announcing. But why was he scheduled to work the game in the first place? Didn't James already have a personal issue with Texas Tech simply because his son plays on the team? Was he really expected to be objective in a game his son (or his son's team) is playing in? I know sports broadcasters are not held to similar ethical standards as news journalists. But if ESPN is aware enough to make a change when there is a unique conflict (as now), why not when there is a unique affinity (as when a close family member is in the game)?
Update:
Leach has been fired "with cause effective immediately." Leach had filed suit in Texas state court seeking a TRO permitting him to coach in the bowl game and a hearing was scheduled for his morning. Texas Tech's lawyer handed Leach's lawyer the termination letter right before the beginning of the hearing; the hearing then was canceled, since the request for reinstatement had become moot. Expect Leach to file some sort of wrongful termination/breach-of-contract lawsuit soon, if for no other reason than to make sure he gets paid the balance of his contract (last February, Leach signed a contract extension through 2013). The whole issue of the "with cause" finding is to relieve the university of having to pay the balance due under the contract. Posted By : Howard Wasserman
The NFL's Brief in American Needle v. NFL
Message posted on : 2009-12-30 - 12:37:00
For those who have been waiting to read the brief filed by the NFL in the upcoming American Needle v. NFL case, it is now available to be downloaded. Meanwhile, a complete collection of all the briefs filed with the Supreme Court in the case can be accessed here. Posted By : Nathaniel Grow
The Aroldis Chapman Sports Law Saga Continues
Message posted on : 2009-12-29 - 19:25:00
A couple of weeks ago, Ed and I discussed an interesting lawsuit filed in a Massachusetts state court by the former agents of 21-year-old Cuban defector Aroldis Chapman against his new agents for "stealing" Chapman as a client. The lawsuit -- Athletes Premier International v. Hendricks Sports Management -- is based on a tortius interference claim, which Jimmy Golen of the Associated Press has discussed. Chapman, a lefthander who can reportedly throw 100 miles per hour, remains a free agent, having turned down a $15 million (guaranteed) offer from the Red Sox. He apparently seeks a deal that will guarantee him $30 million, which will be harder to obtain when 2010 arrives because of federal laws which tax signing bonuses when a person works in the U.S. but not when the person does not work in the U.S. (see below).
David Frank of Massachusetts Lawyers Weekly has a new and extensive story (subscription only) on the agency commission that will be owed when Champan signs with a team. Frank interviews the allegedly aggrieved agent, Edwin L. Mejia (a 2001 graduate of Boston University School of Law whose agency is based in White Plains, New York and who is being represented by Gary Greenberg of Greenberg Trauig in the litigation) and me for the story. Here are some excerpts:
* * *
Chapman, a 21-year-old member of the Cuban national team, signed a contract in July naming Mejia as his exclusive representative . . . From that point on, Mejia, who heads up Athletes Premier International, says he spent the summer in Europe helping guide Chapman through the complicated legal process of being declared eligible to play ball in the majors.
"It's tough to quantify how much time went into all of this, but we met on July 2, and from then until [Chapman] arrived in the U.S. in mid-October, I spent virtually the entire time with him," Mejia says. "I did everything from make breakfast for him to deal with the legal and procedural stuff. "
With Chapman's 100 mile-per-hour fastball wowing teams, including the Red Sox, it was clear that some big bucks were headed his way - a percentage of which would land in Mejia's bank account. "I was negotiating with a couple of clubs and knew several other teams were also interested," he says . . .
Then, on Nov. 16, Chapman suddenly disappeared. "I didn't know where he was, which was very odd because he and I talked every day," he says. "We did some
research and found out, in part through cell phone records, that he had been contacted by representatives from [Hendricks Sports Management]. Subsequent to notifying [Hendricks] that we knew they were talking to [Chapman], we received documentation that indicated he had allegedly fired me. "
* * *
Although representatives from Hendricks Sports did not return calls from Lawyers Weekly, the agency issued a written statement to the Associated Press . . .
* * *
While the concept of tortious interference clearly covers attempts to interfere with another's business relationship, Michael A. McCann, a Vermont Law School professor who writes for Sports Illustrated, says Mejia is facing an uphill battle.
"There is a deference by the courts to the competitive nature of sports agents, and the reality is that, while the behavior isn't praise-worthy, it is very much a part of the industry," McCann says. "It would truly be a ground-breaking decision if a court were to find that poaching players constitutes tortious interference. "
* * *
There's another angle to the story, though, that I think is very interesting: the tax implications of Chapman still not being signed as 2010 approaches. Basically, by waiting until 2010, Chapman will cost himself millions of dollars in taxes and its not clear if any of his agents were aware of that.
Jorge Arangure Jr. of ESPN Insider (subscription only) has the details:
* * *
By signing in 2010, Chapman's bonus will now be eligible to be taxed by the U.S. government. "Signing bonuses that are received outside the U.S., by a non-U.S. resident, and in a tax year in which the person did not work in the U.S., are not subject to U.S. taxation," wrote agent Joe Kehoskie, who has represented Cuban players for several years, in an email. "As far as I'm aware, neither the Hendricks brothers nor Rodney Fernandez (who represent Chapman) have ever completed a contract for a foreign free agent, so I bet this issue flew right under their radar.
Right now, it's shaping up as a $3 million (or more) loss for Chapman."Unless Chapman signs for well over $20 million, he'll net less money than if he had simply signed with Boston for $15 million when that offer was presented."
* * *
For a guy who still hasn't signed with an MLB team, let alone thrown a pitch for one, Aroldis Chapman has certainly generated a lot of controversy.
Posted By : Michael McCann
Texas Tech coach suspended--some questions
Message posted on : 2009-12-29 - 08:42:00
Texas Tech has suspended football coach Mike Leach for its bowl game, because of Leach's alleged treatment of a player (receiver Adam James, the son of ESPN college football analyst Craig James) who had suffered a concussion and was unable to practice. The James family alleges that Leach ordered the player to sit in an equipment closet or equipment bin (reports conflict) and was told that if he came out, he would be kicked off the team. Leach's attorney insists that Leach had James sit in a cooler, darker area than the practice field because it would be better for the player, given his sensitivity to light. The school has begun an internal investigation.
Two questions, not really going to the substance of anything.
First, is it me, or are we beginning to hear more complaints about, and challenges to, barbaric coaching methods? Are players (themselves or through their parents) beginning to stand up to what often can best be described as hazing, if not outright brutality by the adults in charge? Are players less fearful of complaining, knowing that the school might somewhat have their back? And are schools beginning to take player complaints seriously, perhaps out of fear of liability? Kansas' Mark Mangino lost his job amid reports of being verbally and physically abusive towards players. There was the initial story of South Florida Coach Jim Leavitt slapping a player (reported by the player's father), although that story quickly petered out. And now this. Maybe it's just a blip, but maybe it marks a sea change in the relative power relationships in college sports.
Second, an interesting twist in the Texas Tech story is that Craig James no longer will work the game for ESPN, because there now is a personal issue between James and the school that implicates his objectivity in announcing. But why was he scheduled to work the game in the first place? Didn't James already have a personal issue with Texas Tech simply because his son plays on the team? Was he really expected to be objective in a game his son (or his son's team) is playing in? I know sports broadcasters are not held to similar ethical standards as news journalists. But if ESPN is aware enough to make a change when there is a unique conflict (as now), why not when there is a unique affinity (as when a close family member is in the game)? Posted By : Howard Wasserman
The Rules Regarding Blood That May Put Mayweather-Pacquiao in the Crypt
Message posted on : 2009-12-23 - 20:59:00
It is being widely reported this week that the proposed mega-fight between the two best fighters in professional boxing today, Filipino sensation Manny (Pac Man) Pacquiao and the undefeated Floyd (Money) Mayweather, Jr., tentatively scheduled for March 13, 2010, may now be in serious jeopardy. The reason: Pacquiao does not wish to contractually consent to Olympic-style drug testing procedures. According to Dan Rafael of ESPN.com:
“Olympic style drug testing is more rigorous than the drug testing performed by the Nevada State Athletic Commission [the commission with jurisdiction over Las Vegas' MGM Grand, where the fight is reportedly now scheduled to be held] and other state commissions. It would involve random blood and urine testing before and after the fight. Nevada commission testing only tests urine for banned substances, only just before the fight and once immediately following the fight.”
Mayweather, whose father has been quoted in the press since after Pacquiao's November 14, 2009 bout with Miguel Cotto as saying that he believed that Pacquiao uses performance enhancing drugs, reportedly wants a provision for random drug testing in their bout agreement “to ensure fair play and sportsmanship by both fighters.” The Pacquiao camp, in turn, has reportedly stated that Pacquiao has difficulties with taking blood and does not wish to do so in close proximity to the fight. Regardless of the rationale, two of the many questions that arise are where exactly does this request find its origin, and what are some of the possible implications and extensions of contracting to Olympic-style drug testing? A quick analysis of each question follows...
For the full article please go to http://www.8countnews.com/news/125/ARTICLE/2169/2009-12-23.html. Posted By : Paul Stuart Haberman
Instant replay and standards of review
Message posted on : 2009-12-22 - 22:31:00
There has been a free-ranging blog conversation recently on why video-replay review in the NFL is so deferential rather than de novo. Joseph Blocherstarted things off, triggering responses here, here, and here, as well as my limited comments. Mitchell Berman weighs in at Slate today.
It's all worth a read. Posted By : Howard Wasserman
City of San Francisco Threatens to Sue MLB
Message posted on : 2009-12-20 - 11:15:00
The San Francisco Chronicle reported on Friday that San Francisco's City Attorney has sent Major League Baseball officials a letter threatening a lawsuit by the city of San Francisco should MLB approve the relocation of the Oakland Athletics to San Jose. MLB has been exploring the possibility of moving the A's to San Jose following the collapse earlier this year of a plan to move the franchise to Fremont, CA, with a decision on the San Jose relocation expected as early as next month.
San Francisco's purported basis for suing MLB stems from its financial interest in the Giants. The city reportedly receives $3.6 million in rent the from the Giants annually for AT&T Park, as well as taxes on game day revenues such as ticket sales and parking. The city apparently believes that these tax revenues would be threatened should the A's relocate to San Jose, a territory which has historically been assigned to the San Francisco Giants.
On first impression, the threatened suit by the city of San Francisco seems problematic on several fronts. First, the city would have to convince a court that its interest in protecting its tax revenues from the Giants gives it sufficient standing to legally challenge MLB's approval of the relocation of another franchise into the Giants' assigned territory.
However, even if San Francisco is able to establish standing, such a suit would also place the city in the awkward position of effectively asking a court to enforce MLB's anticompetitive territory allocation system. While professional baseball's practice of granting franchises exclusive rights to certain geographic territories has previously been challenged by those seeking to enter a restricted market -- suits which have historically been dismissed pursuant to MLB's antitrust exemption (see, e.g., New Orleans Pelicans Baseball, Inc. v. National Association of Professional Baseball Leagues, Inc., Case No. 93-253, 1994 WL 631144 (E.D.La. March 1, 1994)) -- a suit by San Francisco would mark the first time that MLB has faced a lawsuit seeking to require the league to enforce this restriction. The optics of such a suit, being filed by a municipality no less, would be less than ideal. I suspect most courts would be uncomfortable issuing an order requiring baseball to enforce its territory restriction, especially in a case where MLB had already decided to set aside its long-standing anticompetitive policy.
Posted By : Nathaniel Grow
American Needle Updates
Message posted on : 2009-12-18 - 12:00:00
Two quick items for those closely monitoring the American Needle v. National Football League case before the United States Supreme Court. First, American Needle filed a reply brief yesterday, which is available here. Unfortunately, the NFL's brief is still not yet publicly available for download.
Second, SCOTUSBlog reports that the Supreme Court has extended the oral argument schedule by 10 minutes, so that the United States Solicitor General may argue for a position different than those asserted by the petitioner and respondents. The oral argument is set for 10 a.m. on Wednesday, Jan. 13. Posted By : Nathaniel Grow
Arn Tellem on NCAA Ban on Use of Attorneys during Contract Talks with Teams
Message posted on : 2009-12-18 - 01:05:00
Arn Tellem, a prominent agent to MLB and NBA players and Principal at the Wasserman Media Group, has a thoughtful piece on the Huffington Post on how the NCAA largely prohibits student-athletes from legal representation during contract talks with professional teams. Here are some excerpts from Tellem's piece:
* * *
Athletes and their parents are allowed to get advice about proposed contracts only if their advisors don't represent them openly in negotiations. Athletes and their advisors can discuss the merits of a deal, but to maintain eligibility at NCAA schools, the advisors may not act as a go-between or be present during bargaining sessions or have any direct contact with the team on the athlete's behalf.
The rule is intended to keep agents away from amateur athletes. By rendering agents powerless, it effectively turns them into potted plants. But if you're hammering out a deal with someone, isn't it your prerogative to get professional advice? Absolutely, wrote an Ohio judge in a 2008 judgment against the NCAA. He likened the rule to "a patient hiring a doctor, but the doctor is told by the hospital board and the insurance company that the doctor cannot be present when the patient meets with a surgeon because the conference may improve his patient's decision-making power." The case involved Andrew Oliver, a former pitcher for Oklahoma State University.
* * *
Earlier this month James Paxton became the latest student-athlete to sue over this issue. In October, the University of Kentucky pitcher was notified by the college that he must submit to an interview with an NCAA investigator. Paxton was drafted in June by the Toronto Blue Jays with the No. 37 pick, but passed on the club's offer and returned to college for his senior season. He was the only college ballplayer among the top 100 selections who didn't sign.
According to the lawsuit Paxton filed against UK, when he turned down the NCAA's request, school officials threatened to kick him off the team and strip his financial aid. He also claims that they instructed him not to tell his parents or his lawyers about the interview. Last week Kentucky's legal counsel promised that Paxton will be allowed to practice with the Wildcats and won't be punished despite the pending litigation. Still, the case is going forward.
* * *
College athletes should be allowed to seek legal help to make informed decisions about their future. Those who are drafted should be encouraged to have the representative of their choice communicate directly with the club that drafted them, and assist in any negotiations. Experienced advisers can help players determine their fair-market value and protect them legally. To deny an athlete the right to retain such counsel is not just patently unfair, but patently unconstitutional.
Nadir S. Ahmed, Inclusionary seating: application of the principle of inclusionary zoning to stadium event ticket pricing, 16 SPORTS LAWYERS JOURNAL 301 (2009)
Matthew C. Garner, Time to move on? Franchise relocation in MLS, antitrust implications...and the hope that FIFA is not watching, 16 SPORTS LAWYERS JOURNAL 159 (2009)
Christopher Hatch, Note, Fourth and short on equality: the disparate impact of the NFL's use of the Wonderlic intelligence test and the case for a football-specific test, 41 CONNECTICUT LAW REVIEW 1669 (2009)
Zachary Herlands, Note, Borden v. School District of the Township of East Brunswick: how the Third Circuit extended the separation of church and state to the football field, 16 SPORTS LAWYERS JOURNAL 333 (2009)
A. Jason Huebinger, Beyond the injured reserve: the struggle facing former NFL players in obtaining much needed disability assistance, 16 SPORTS LAWYERS JOURNAL 279 (2009)
David Hutson, Note, Paying the price for sports TV: preventing the strategic misuse of the FCC's carriage regulations, 61 FEDERAL COMMUNICATION LAW JOURNAL 407 (2009)
F. Scott Kieff et al., It's your turn, but it's my move: intellectual property protection for sports “moves,” 25 SANTA CLARA COMPUTER & HIGHT TECH LAW JOURNAL 765 (2009)
Joshua M. Kimura, The return of The Natural: how the federal government can ensure that Roy Hobbs outlasts Barry Bonds in Major League Baseball, 16 SPORTS LAWYERS JOURNAL 111 (2009)
Jeremiah Kline, Black and blue: an examination of trademarking university color schemes, 16 SPORTS LAWYERS JOURNAL 47 (2009)
Joshua M. Liebman, Tip your “cap” to the players: 2007-2008 off-season reveals NHL's salary cap benefits on players, 16 SPORTS LAWYERS JOURNAL 81 (2009)
John G. Long, High standards for high school athletes: defamation law and tomorrow's stars, 16 SPORTS LAWYERS JOURNAL 255 (2009)
Kevin Mahoney, Note, Learning from the mistakes of others: changing Major League Baseball's substance abuse arbitration procedure, 24 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 613 (2009)
Neil M. Mazer, Homeruns and taxes: the IRS and its treasure trove regulation, 16 SPORTS LAWYERS JOURNAL 139 (2009)
Andrew T. Miragliotta, Note, Goldstein v. Pataki: down but not out, fifteen property owners stop the clock on
Bruce Ratner's eminent domain game, 16 SPORTS LAWYERS JOURNAL 319 (2009)
Robert F. Moore, The interaction between the Americans with Disabilities Act and drug and alcohol addiction in sports, 16 SPORTS LAWYERS JOURNAL 231 (2009)
Kimberly Jade Norwood. Adult complicity in the dis-education of the black male high school athlete & societal failures to remedy his plight, 34 THURGOOD MARSHALL LAW REVIEW 21 (2008)
Ross C. Paolino, Upon further review: how NFL Network is violating the Sherman Act, 16 SPORTS LAWYERS JOURNAL 1 (2009)
Jon Perrelle, Note, An opportunity of reform: Tennessee Secondary School Athletic Association v. Brentwood Academy and NCAA recruiting, 74 BROOKLYN LAW REVIEW 1213 (2009)
Steven Stewart, The development of sports law in the European Union, its globalization, and the competition law aspects of European sports broadcasting rights, 16 SPORTS LAWYERS JOURNAL 183 (2009)
Burgess Williams, Note, The fate of third party ownership of professional footballers' rights: is a complete prohibition necessary, 10 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 79 (2008)
Tulane University School of Law Moot Court Mardi Gras Invitational: 2008 Competition, 16 SPORTS LAWYERS JOURNAL 353 (2009)
Posted By : Geoffrey Rapp
Tender Deadline and Additional Free Agents
Message posted on : 2009-12-16 - 16:57:00
Back on November 6, I offered an observation based on Buster Olney's claim that many teams would not tender players by the December 12 deadline. Olney argued that this year many more players (he said he and executives had a list of 93 candidates) would be non-tendered and added to the free agent market. Well, the results are in. A total of 39 players were non-tendered - 17 in the American League and 22 in the National League. Of that number, 9 were not arbitration-eligible players (6 in the American League and 3 in the National League). A few signed quickly including some with their “old” team. Buster Olney offered some observations on his blog Sunday (“Slew of Signing Lie Ahead”). I got sucked in a bit with my earlier posting wondering if the predictions were going to be true. In Olney original article producing a different dynamic. The final results are pretty underwhelming. The increased number of non-tendered players is similar to the number from last year. Although there are many free agents on the market including recent non-tenders Chien-Ming Wang, Jack Cust, Ryan Church, Matt Capps, and Garrett Atkins, the stories usually make sense if you examine each case in its own context. Posted By : Ed Edmonds
Did Aroldis Chapman switch agents because of Tortious Interference?
Message posted on : 2009-12-16 - 00:38:00
An interesting lawsuit has been filed in a Massachusetts state court by the former agents of 21-year-old Cuban defector Aroldis Chapman --whom the Boston Red Sox have reportedly offered a $15.5 million contract--against his new agents for "stealing" Chapman as a client.
Chapman's original representative sued his current agent in Massachusetts state court on Tuesday, claiming that Hendricks Sports Management illegally lured him away from Athletes Premier International and agent Edwin Mejia. The lawsuit accuses Hendricks of tortious interference and unjust enrichment, claiming that Athletes Premier "invested substantial time and hundreds of thousands of dollars" on Chapman's behalf to help him defect, establish residency in Andorra and begin negotiating with major league teams.
Citing text messages and call logs from a cell phone Mejia provided to the Cuban left-hander, the suit claims that "Hendricks and its employees made material false and disparaging statements to Chapman concerning Athletes Premier and Mejia as well as provided improper enticements to Chapman in order to cause Chapman to terminate his contract with Athletes Premier and sign a contract with Hendricks."
In a statement e-mailed to The Associated Press, the Hendricks agency described its representation of Chapman as "an unexpected and unsolicited opportunity" and called the lawsuit "pure fiction and self delusion."
* * *
The statement said Mejia brought his complaint to the players association "and the union didn't buy it." It also noted that the suit was filed on the same day that Chapman was scheduled to work out for major league clubs in Houston, where the Hendricks brothers are based.
* * *
Stealing clients is a longtime and lucrative practice among some sports agents, who can earn up to 5 percent of salaries reaching into the hundreds of millions of dollars. Inducing someone to break a valid contract — called tortious interference — is illegal, but it depends on what the agreement was between Mejia and the former star of the Cuban national team.
"Generally speaking, players can change agents at their discretion," said Michael McCann, a sports law professor at the Vermont Law School. "There is certainly evidence of agents poaching clients (in cases) that don't result in litigation. Maybe it's unethical; maybe it's wrong; but it happens."
* * *
To read the rest of Golen's story, click here. For the lawsuit, click here. This lawsuit might make for an interesting law review/journal note for a law student looking for a topic to write about.
Update 12/16/2009: A lawyer who has represented several prominent MLB players e-mailed me and offers these thoughts:
I am a little surprised that they didn't try to bring it in Florida (where Chapman's agent Rodney Fernandez of Hendricks Brothers is based) - Florida has a "tortuous interference with prospective business opportunity" cause of action that I would find more advantageous in this type of case, rather than a straight tortuous interference with contract. Reasoning being is that per MLBPA regs, all player/agent contracts can be terminable at will (and have a maximum length of 1 year). I would have brought it in Florida - there are enough connections there.
I don't see how this claim, as currently posited, is much different from Speakers of Sport v. Proserv (involving Ivan Rodriguez), which was argued in federal court on a similar theory, and plaintiff agent did not prevail on the basis that the court found that it's a high risk/high reward business (agency), and that statements to the player that are "puffery" do not rise to the level of tortuous interference.
Likewise, there have been a number of agent/agent cases argued in the MLBPA arbitration forum that have held essentially the same thing.
Posted By : Michael McCann
Illegal Motion?
Message posted on : 2009-12-15 - 13:32:00
My wife loves this clip and it has grown on me. But I must ask: Is this Illegal Motion?
Posted By : Howard Wasserman
Utah's Attorney General Planning an Antitrust Suit against the BCS
Message posted on : 2009-12-12 - 19:00:00
Following a Congressional subcommittee voting to prevent the BCS from declaring its culminating game the "national championship," as Howard discussed on Wednesday, it appears that another legal challenge to the BCS may be brewing. ESPN.com's Lester Munson reported on Friday that Utah Attorney General Mark Shurtleff is prepared to file an antitrust lawsuit against the BCS as soon as early 2010. The suit would presumably be premised on the BCS' exclusion of an undefeated Utah team from the national championship game last year. AG Shurtleff has scheduled a meeting with Christine Varney, the head of the U.S. Department of Justice's antitrust division, to ascertain whether the federal government would be interested in participating in the suit.
With or without federal assistance, Utah's proposed suit strikes me as a much more serious threat to the BCS than the Congressional measure discussed this week. Posted By : Nathaniel Grow
Bill Belichick and Punishing Players Who Are Late for Meetings during Snow Storms
Message posted on : 2009-12-10 - 14:51:00
Yesterday morning four Patriots players -- including Randy Moss and Adalius Thomas -- were between 10 and 20 minutes late for an 8 a.m. meeting. It was snowing that morning in Massachusetts (which weather forecasts had predicted, so the snow was foreseeable to anyone with access to a forecast). Thomas had called the team to let them know that he would be late due to the weather; it's unclear whether the other players did as well.
In response to the players' tardiness, coach Bill Belichick sent them home. While the players were not fined, they felt embarrassed by the punishment. As a contextual point, the 7-5 Patriots, though in first place in the middling AFC East, have lost two in a row and many commentators have opined that the team has not played up to its potential. Thomas, in particular, has been cited as an under-performing player.
Thomas: “I got sent home. That's pretty much it, for being late.”
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Reiss: Can you add more context to that; maybe a reason behind it?
Thomas: “I think everyone woke up to the snow yesterday. I didn't know it was going to snow. There was traffic. I can't run people over getting to work. I don't do that. I actually almost had a car accident. It is what it is. He did what he thought was best for him. That's what he did.”
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Reiss: Do you feel compelled to say something to them – an apology or what have you?
Thomas: “I don't know. That's one thing about Mother Nature. You can't control that. You can't run people over getting to work. There is nothing to really apologize about. I didn't try to be late. That's basically it, though. I don't know what else to say. You leave home, you have people there, cars sitting in the road, you're sitting there, what do you do? It's not the Jetsons, I can't jump up and just fly. What the heck am I supposed to do?”
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Reiss: Can what happened yesterday serve as motivation?
Thomas: : “Motivation is for Kindergarteners. I'm not a Kindergartner. Sending somebody home, that's like ‘He's expelled, come back and make good grades.' Get that [expletive] out of here. That's ridiculous. Motivation?”
Should players be punished -- and I think being sent home is a punishment, even if it does not financially harm a player -- for showing up late when it's snowing or there is some other dangerous weather condition? Are they supposed to leave earlier for work? Who's right here? Posted By : Michael McCann
Congress and the BCS
Message posted on : 2009-12-09 - 22:44:00
Yesterday, a subcommittee of the House Committee on Energy and Commerce passed H.R. 390, which prohibits the "promot[ion], market[ing], or advertis[ing]" of a post-season Division I college football game as a national championship game unless it is the final game of a single-elimination post-season playoff tournament rather than the current BCS system. It also prohibits the sale, marketing, or advertising of merchandise related to a national-championship game unless it is for the final game of a single-elimination playoff tournament. The Federal Trade Commission is given enforcement jurisdiction, with the practices prohibited in the act treated as unfair or deceptive trade practices.
The obvious reaction is to wonder whether Congress has anything better to do. Not because Congress cannot do many things at once--as co-sponsor Bobby Rush said, "We can walk and chew gum at the same time"--but because I am not sure why there is a sufficient national public interest to warrant congressional action.
My broader reaction is to wonder whether there is a First Amendment problem here. The bill clearly tries to limit itself to commercial speech--selling, marketing, advertising--that receives less (although still significant) First Amendment protection. Commercial speech can be restricted if it is untruthful or misleading and then is essentially subject to intermediate scrutiny--it must directly serve a substantial government interest and must regulate no more extensively than necessary to serve that interest. But is it "untruthful" or "misleading" to call the upcoming BCS Championship Game between Alabama and Texas a "championship" game (or to call the winner of that game "National Champion" simply because Congress or the FTC does not like the process used to decide the game's participants? This is not like the FTC prohibiting Tylenol from saying it cures cancer or prohibiting OxyClean from saying one use and you'll never have to clean your whites again or prohibiting Nike from directly stating that these new sneakers will enable you to run a two-hour marathon--empirically dubious claims, all. Plus, I am not sure what substantial government interest is at stake here; it does not appear to be public health, safety, or welfare--unless you happen to be a fan of TCU or Boise State.
Plus, this may come close to regulating fully-protected non-commercial speech. The prohibition on sales of merchandise "related to" a non-playoff national championship game would reach, for example, selling hats and t-shirts that say "Alabama/Texas 2009 National Champion." But the fact that something expressive (in this case the hat with the National Champion message) is sold does not make it commercial speech; the seller in this example is engaged in the sale of non-commercial expressive material and the attempt to regulate that sale should be subject to regular First Amendment scrutiny. And obviously the FTC cannot prohibit people from wearing merchandise pronouncing Texas/Alabama as National Champion based on victory in a BCS-based game. Nor can it prohibit the University of Alabama from, say, introducing its team as National Champions, hanging a National Champion banner on its stadium, or wearing special jerseys that say "National Champions." Any such effort would, it seems to me, plainly violate the First Amendment.
All of which calls into question why the bill takes the approach it does. Given the strong interstate commerce connections of collegiate sports, it seems that Congress could directly compel the NCAA and its members to adopt a playoff. It also could have attached a playoff system as a condition on federal funds (which every NCAA member school receives). So it seems odd to incentivize the NCAA into adopting a playoff by going after expression. Seems like what the First Amendment is designed to prevent. Posted By : Howard Wasserman
Yesterday, the New York Times reported that Notre Dame is interviewing Cincinnati's Brian Kelly today to see if he is interested in their coaching vacancy. Tell it like it is. Notre Dame is soliciting Kelly to breach his contract with Cincinnati. Here you have a university that has made a substantial investment in a coach based upon his express contractual commitment to stay for a period of years in order to develop a successful program, and a coach who is going to speak to another school about leaving at a time his players are preparing for the biggest game of their lives in a few weeks.
It is mind-boggling that the NCAA and its members allow this tampering to occur. If it is in fact true that 85% of bowl-subdivision university presidents feel that coaches' compensation is "excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability," then they should seriously consider adopting a no tampering policy similar to the NFL's policy. In the meantime, Cincinnati owes all of the current and prospective student-athletes, as well as the taxpayers (because Kelly's salary is funded by tax exempt revenue), to enforce its contract and prevent Kelly from going to work for a competitor.
In my law review article that was just published, I discuss how college head coaches today meet the "unique skill" element for a negative injunction to prevent the coach from working for a competitor school. Indeed, there are striking similarities between today's college head coaches and professional athletes applying the court's rationale in the seminal case of Philadelphia Ball Club v. Lajoie:
The court below finds from the testimony that “the defendant is an expert baseball player in any position; that he has a great reputation as a second baseman; that his place would be hard to fill with as good a player; that his withdrawal from the team would weaken it, as would the withdrawal of any good player, and would probably make a difference in the size of the audiences attending the game.”….He has been for several years in the service of the plaintiff club, and has been re-engaged from season to season at a constantly increasing salary. He has become thoroughly familiar with the action and methods of the other players in the club, and his own work is peculiarly meritorious as an integral part of the team work which is so essential. In addition to these features which render his services of peculiar and special value to the plaintiff, and not easily replaced, Lajoie is well known, and has great reputation among the patrons of the sport, for ability in the position which he filled, and was thus a most attractive drawing card for the public.
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We have the further fact that the contract has been partially executed by services rendered, and payment made therefor, so that the situation is not now the same as when the contract was wholly executory. The relation between the parties has been so far changed as to give to the plaintiff an equity, arising out of the part performance, to insist upon the completion of the agreement according to its terms by the defendant….The plaintiff has so far performed its part of the contract in entire good faith, in every detail, and it would therefore be inequitable to permit the defendant to withdraw from the agreement at this late day.
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The defendant sold to the plaintiff, for a valuable consideration, the exclusive right to his professional services for a stipulated period, unless sooner surrendered by the plaintiff, which could only be after due and reasonable notice and payment of salary and expenses until the expiration. Why should not
a court of equity protect such an agreement until it is terminated? The court cannot compel the defendant to play for the plaintiff, but it can restrain him from playing for another club in violation of his agreement.
Posted By : Rick Karcher
Dwayne Bowe and the StarCaps Saga
Message posted on : 2009-12-07 - 19:34:00
I have a column up in the Huffington Post discussing the StarCaps saga and the recent suspension of Dwayne Bowe. For a different take on the issue, please check out Professor Standen's post here. In a nutshell, I do not believe that the 8th Circuit's decision in the StarCaps case poses a real problem for the NFL or other sports leagues. At least not quite yet. Professor Standen, in contrast, believes that the NFL's performance enhancing drug testing policy is now dead… Posted By : Gabe Feldman
Marcus Jordan and The Capacity of College Players to Choose their own Sneakers
Message posted on : 2009-12-07 - 13:25:00
Over on MSN Money, John Kelly of Minyanville News recently had an interesting story on Michael Jordan's son Marcus, a freshman at the University of Central Florida. Marcus Jordan wears Air Jordan sneakers even though his team, until a few weeks ago, had a sponsorship contract with Addidas. The piece came out before Addias decided to terminate its sponsorship contract with UCF, but addresses some of the key issues. Here's an excerpt:
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In an interview with AOL's Fanhouse, UCF athletic director Keith Tribble said that Jordan could make his own choice on what to wear, and that he wouldn't be the first athlete at the school to get permission to wear something other than Adidas -- a football player wore a different pair of shoes because of a better fit.
But that concession didn't sit well with Adidas. The athletic-gear company says it won't bend the rules, even if -- or perhaps, especially if -- it's for a Jordan. "There is no compromise, and the contract is currently under review," Adidas spokeswoman Andrea Corso said. . . .
This situation is just the latest in a string of recent cases exploring exactly what control current and former college athletes have over their own image. Last year, former Nebraska University quarterback Sam Keller filed a lawsuit against video-game company Electronic Arts (ERTS) and the National College Athletic Association arguing that they were illegally using the images of college football and basketball players in video games without their permission or compensation.
Former UCLA star basketball player Ed O'Bannon is suing the NCAA over its use of former student athletes' images in DVDs, video games, photographs, apparel, and other material. In a federal lawsuit filed in July, O'Bannon said the NCAA illegally has athletes sign away their rights to the commercial use of their images and doesn't share any of the proceeds from their use with the former athletes.
Other than the name of the players on the back of the character's jersey, the images on screen are often an exact replica of the more famous college athletes, including weight, height, uniform number, and athletic skills. EA and the NCAA claim that by not including player names, they're not stealing their "likeness."
Others are not so sure. Michael McCann, who teaches legal issues relating to sports at Vermont Law School, told Minyanville that while the scholarships that universities offer the student athletes may cover any revenues that the schools generate from the players' images, "it seems like a separate matter when a third party like a video-game publisher profits off the players' apparent images, especially when the players are forbidden under NCAA rules from earning off of their celebrity."
I am a contributor to the Legal Broadcast Network, which was co-founded by environmental torts and consumer protection lawyer Jan Schlictmann, and I was interviewed this week by Scott Drake about a story that Rick also discussed in a different forum: the legal fallout of the Tiger Woods saga. Here's the interview:
Posted By : Michael McCann
Message posted on : 2009-12-03 - 21:46:00
The exclusive contract between Electronic Arts and the NF
Posted By : Michael McCann
Tiger's Privacy and Image
Message posted on : 2009-12-03 - 17:10:00
The Lawyer 2 Lawyer show of the Legal Talk Network has a 30-minute podcast on "The Tiger Woods Saga" that can be downloaded from here. Josh Galper, partner in Orrick, Herrington and Sutcliffe's Washington D.C. office, and I discuss and debate Tiger's right to privacy and the impact on his image. Posted By : Rick Karcher
American Needle v. NFL Moot Court
Message posted on : 2009-12-03 - 09:00:00
Two weeks ago, the Penn State School of Law hosted a moot court session considering American Needle v. NFL. Gary R. Roberts, dean of the Indiana University School of Law in Indianapolis, argued on behalf of the NFL, with Penn State's own Stephen Ross representing American Needle. Guest Judges were Judge D. Brooks Smith and Judge Dolores KormanSloviter of the United States Court of Appeals for the Third Circuit, and Judge Richard Cudahy from the Seventh Circuit Court of Appeals.
Penn State has made a video of the event available online. Posted By : Nathaniel Grow
More Amicus Briefs in American Needle v. NFL
Message posted on : 2009-11-30 - 15:23:00
Last Tuesday was the deadline for amicus curiae briefs supporting the NFL in American Needle v. NFL. A number of supporting briefs were filed with the Supreme Court, and are now available for download:
A brief by the National Hockey League, available here.
A brief by the National Basketball Association and NBA Properties, available here.
Unfortunately, a copy of the NFL's brief has still not been made publicly available for downloading, as far as I have been able to discern. However, the brief is now available on LexisNexis, for those with access to its Supreme Court briefs database.
Posted By : Nathaniel Grow
Tiger Woods Brings to Light the Privacy Rights of Public Figures
Message posted on : 2009-11-30 - 09:05:00
Eric Zorn of the Chicago Tribune wrote an interesting post titled, Up in Tiger's Business: Is it Our Right to Know?Zorn writes that many of us may want to know what precipitated the weird, low-speed crash outside Tiger Woods' home very early Saturday. But he raises the question whether we have the informal right to know. Zorn makes an excellent point:
The implicit bargain of modern celebrity is that it's a battle between the image makers and the image wreckers -- the celebrity is no longer able to draw lines between public and private that the public will respect.
With athletes this is less true than with, say, actors. Tiger Woods' ability to earn millions of dollars in tournament prize money every year is not dependent on what you or anyone else thinks of him. For the most part he has avoided making his private life public and kept the journalistic focus on matters related to golf. His endorsement deals trade on his enormous talent and legendary focus on the links, not on whether or not he's a jolly paterfamilias.
Zorn is articulating in layman's terms the legal test that I propose (in my article Tort Law and Journalism Ethics) for public disclosure of private facts claims involving public figures, which I discussed in my post last week. Posted By : Rick Karcher
True Hoop Feature on Sonny Vaccaro and Brandon Jennings
Message posted on : 2009-11-29 - 01:03:00
When he was playing as a professional basketball player in Italy instead of as a student-athlete at a university, Brandon Jennings received a good amount of attention on this blog. As a 19-year-old, Jennings opted to play professionally Italy while waiting to become eligible for the 2009 NBA Draft. In addition to living in a rent-free luxury apartment in downtown Rome, among enjoying many other perks, Jennings earned around $1 million this year, after tax, between basketball and endorsement income (in fact, while in Italy, he apparently earned more in endorsement income than any pick from the 2008 NBA Draft, save for the top three players selected, Michael Beasely, Derrick Rose, and O.J. Mayo).
The one perceived "flaw" to Jennings's plan was that he did not dominate the Italian competition, which was comprised of men in the 20s and 30s who had played pro hoops for years; in fact, he would struggle at times. He appeared to learn from his struggles, though, as he worked out for NBA teams for the 2009 NBA Draft and the Milwaukee Bucks selected him with the 12th overall pick.
http://espn.go.com/blog/truehoop/post/_/id/10853/sonny-vaccaro-brandon-jennings-broke-the-mold-part-two Posted By : Michael McCann
Donald Dell Book
Message posted on : 2009-11-29 - 01:03:00
Posted By : Michael McCann
The Give Blog
Message posted on : 2009-11-28 - 06:54:00
University of Illinois Law Professor Suja Thomas, who teaches sports law, and her husband Scott have created the Give Blog, where up until December 24th they will match donations of up to $100 from new donors to five charities (The Hunger Project, The Grameen Foundation, Safe Passage, Catcholic Charities USA, and Eastern Illinois Foodbank). If you're interested in contributing to any of these five charities during this holiday season, please consider doing so through the Give Blog, as Suja and Scott will match the amount if you are a new donor. For more information, click here. Posted By : Michael McCann
2010 AALS Sports and the Law Section Meeting and Panel
Message posted on : 2009-11-24 - 19:43:00
For those of you attending the Association of American Law Schools' 2010 annual meeting in New Orleans in January, Villanova Law Professor David Caudill, the Chair of the AALS Section on Sports and the Law, invites you to attend this year's section meeting and panel, which will be held from 1:30 to 3:15 p.m in the Elmwood Room (3rd Floor) of the Hilton New Orleans Riverside.
Below are details on the section's events:
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THE TOPIC: THE NEW NFL/NFLPA COLLECTIVE BARGAINING AGREEMENT: AVOIDING A CATASTROPHE?
OVERVIEW: When the NFL opted out of the current collective bargaining agreement with the NFLPA, the stage was set for contentious negotiations during the 2009 season and potentially beyond. A labor-related stoppage or lockout could result from a failure to come to terms. The topic for this year's sports law panel will be the present state of labor negotiations within the NFL. The NFL owners will likely predict an economic crisis if the players make unreasonable demands in terms of percentage of revenue, salary cap, bonus provisions, and the rookie wage scale, while the players' union will likely claim that the owners never had it so good. Perhaps the real Super Bowl for sports lawyers will take place around the bargaining table this year.
PROGRAM: To open the program, Professor Robert H. Topel, the Isidore Brown and Gladys J. Brown Professor in Urban and Labor Economics at the University of Chicago's Booth School of Business, will discuss his controversial study (co-authored with Chicago colleague Professor Kevin Murphy), on behalf of the NFLPA, of the economics of the NFL. What was the NFL's response to the study? Has the recession altered any of the conclusions of that study?
Next, three law professors will address various aspects of the NFL/NFLPA labor controversy:
Professor Emeritus Bob Berry (Boston College): “Show Me the Money Revisited: The Current NFL Labor Conundrums”.
In the past, dating from the 1960s to the 1990s, NFL labor confrontations often concentrated on player mobility issues. The draft, free agency and free agent compensation were contentious issues, resulting in work stoppages on more than one occasion. This year is different, or seems to be. Pure economic issues appear to be largely the basis of the current negotiations. The question is, however, whether anything has really changed. Has it always been about the money? An even more basic issue is why at this time there is already talk of a lockout and a possible attempt at union decertification. While all these are brewing, we might as well revisit possible antitrust issues under the labor exemption.
Professor Matt Mitten (Marquette): “Drug testing and Sports Medicine Issues in NFL Collective Bargaining: A Proposed Quid Pro Quo.”
Specific issues to be discussed: (1) NFL clubs' characterization of team physicians as “employees” in effort to bar players' medical malpractice claims by the worker's compensation
co-employee doctrine; and (2) the 8th Circuit's recent Williams v NFL decision, which permits the NFL's collectively bargained drug testing policy to be challenged on the ground it violates Minnesota state law.
Professor Jeff Standen (Willamette): “American Needle and the Threat of Union Decertification”
This paper argues that the American Needle case currently pending before the U.S. Supreme Court will impact heavily on the upcoming labor negotiations. If the NFL prevails in its argument that the league constitutes a "single entity" for all or certain legal purposes, then a chief NFLPA bargaining tactic, the threat of union decertification, would be unavailable. Decertifying the players union arguably strips the NFL's bargaining agent of its non-statutory labor exemption and exposes the league to antitrust liability. If the NFL, however, is characterized by the Supreme Court as a single entity, then the league would be effectively immune from antitrust claims. The paper suggests that the Court should adopt a nuanced perspective on the single entity theory in order to preserve the ability of the union to resort to judicial redress.
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It should be a great event and I look forward to attending. Posted By : Michael McCann
The Free Agents and Important December Deadlines
Message posted on : 2009-11-23 - 17:36:00
Last week, 171 players filed for free agency by the November 19 deadline. Of that group, there are 23 Type A free agents and 49 Type B free agents. John Grabow, a Type A free agent, and the Chicago Cubs have already agreed to a new 2-year, $7,500,000 deal. Now the December 1 and December 7 deadlines are quickly approaching. The teams have until December 1 to offer arbitration to protect their right to receive compensation if the player accepts a deal with another team. The December 7 deadline is the last date that a player can agree to accept an offer of arbitration from his former team. If the arbitration agreement is offered and accepted, the team and player will either work out an agreement on salary or proceed into the arbitration process that can involve the exchange of figures and a hearing.
Two players, Darren Oliver and David Weathers, agreed to accept arbitration offers last year. Oliver is a Type A free agent this off-season. Weathers moved from the Reds to the Brewers during the season, and he is a Type B free agent this year.
Two more important December events are the Winter Meetings in Indianapolis from December 7-10, and the tender deadline of Saturday, December 12. As I mentioned in an earlier post, there is some thought that many arbitration-eligible players will not be tendered, thus, increasing the number of free agents on the market. Recently, Scott Boras questioned the financial situation in baseball and wondered about teams that maintain really low budgets in the face of the current revenue stream from the centrally shared resources. It could be a really interesting off-season.
Here is the list of Type A and Type B free agents:
Type A
Jason Bay (Boston - OF), Rafael Betancourt (Colorado - RP), Orlando Cabrera (Minnesota - SS), Johnny Damon (New York Yankees - OF), Octavio Dotel (Chicago White Sox - RP), Jermaine Dye (Chicago White Sox - OF), Chone Figgins (Los Angeles Angels of Anaheim - 3B), Mike Gonzalez (Atlanta - RP), John Grabow (Chicago Cubs - RP), Kevin Gregg (Chicago Cubs - RP), LaTroy Hawkins (Houston - RP), Matt Holliday (St. Louis - OF), Orlando Hudson (Los Angeles Dodgers - 2B), John Lackey (Los Angeles Angels of Anaheim - SP), Bengie Molina (San Francisco - C), Darren Oliver (Los Angeles Angels of Anaheim - RP), Placido Polanco (Detroit - 2B), Marco Scutaro (Toronto - 2B/SS), Rafael Soriano (Atlanta - RP), Miguel Tejada (Houston - SS), Jose Valverde (Houston - RP), Billy Wagner (Boston - RP), and Randy Wolf (Los Angeles Dodgers - SP).
Type B
Garret Anderson (Atlanta - OF), Rod Barajas (Toronto - C), Erik Bedard (Seattle - SP), Joe Beimel (Colorado - RP), Ron Belliard (Los Angeles Dodgers - 2B), Adrian Beltre (Seattle - 3B), Chad Bradford (Tampa Bay - RP), Doug Brocail (Houston - RP), Marlon Byrd (Texas - OF), Kiko Calero (Florida - RP), Michael Cameron (Milwaukee - OF), Doug Davis (Arizona - SP), Mark De Rosa (St. Louis - 3B), Carlos Delgado (New York Mets - 1B), Justin Duchscherer (Oakland - SP), Scott Eyre (Philadelphia - RP), Jon Garland (Los Angeles Dodgers - SP), Brian Giles (San Diego - OF), Troy Glaus (St. Louis - 3B), Vladimir Guerrero (Los Angeles Angels of Anaheim - OF/DH), Rich Harden (Chicago Cubs - SP), Bob Howry (San Francisco - RP), Nick Johnson (Florida - 1B), Randy Johnson (San Francisco - SP), Jason Kendall (Milwaukee - C), Adam LaRoche (Atlanta - 1B), Braden Looper (Milwaukee - RP), Felipe Lopez (Milwaukee - 2B/3B/SS/OF), Brandon Lyon (Detroit - RP), Jason Marquis (Colorado - SP), Melvin Mora (Baltimore - 3B), Guillermo Mota (Los Angeles Dodgers - RP), Xavier Nady (New York Yankees - OF), Will Ohman (Los Angeles Dodgers - RP), Miguel Olivo (Kansas City - C), Vicente Padilla (Los Angeles Dodgers - SP), Chan Ho Park (Philadelphia - SP), Carl Pavano (Minnesota - SP), Andy Pettitte (New York Yankees - SP), Joel Pineiro (St. Louis - SP), Fernando Rodney (Detroit - RP), Ivan Rodriguez (Texas - C), Brian Shouse (Tampa Bay - RP), Russ Springer (Tampa Bay - RP),
Fernando Tatis (New York Mets - 1B/3B/OF), Yorvit Torrealba (Colorado - C), David Weathers (Milwaukee - RP), Randy Winn (San Francisco - OF), and Gregg Zaun (Tampa Bay - C). Posted By : Ed Edmonds
Journalism Ethics Run Amuck, Once Again
Message posted on : 2009-11-21 - 19:20:00
The Associated Press published a story yesterday on a very tragic, sensitive and private matter involving the death of a famous professional athlete's mother. The report not only discusses details surrounding the death, but also personal information about the player's relationship with his mother.
The issue here is not whether the facts of this publication are untrue. The disclosure of private facts tort claim subjects the press to liability for the publication of truthful private matters that would be highly offensive to a reasonable person and that are not of legitimate public concern. In many respects, we as a society have become brainwashed into thinking that the press has a constitutional privilege to publish whatever truthful matters it wants, especially when the matter involves a public figure. But surprisingly, the Supreme Court has given very limited attention to the constitutional privilege of the press to publish truthful private facts and has addressed the issue in only one case involving a public disclosure of private facts tort claim (seeCox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)), and its holding in that case was deliberately and explicitly narrow. Such little guidance by the Supreme Court naturally leaves state and federal courts wide discretion to determine what constitutes a "legitimate public concern" (a/k/a newsworthiness) and to balance the conflicting interests of individual privacy and press freedom.
As I discuss at length in my law review article Tort Law and Journalism Ethics, state and federal courts have proffered varying definitions of newsworthiness. The California Supreme Court in Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998) recognized that a broad "public domain" view of the First Amendment privilege, i.e. any information readily available to the public, would swallow the public disclosure of private facts claim. Regarding matters involving public figures, the court set forth what I believe is the proper standard for newsworthiness: "[T]he evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events, and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given."
In other words, there must be a nexus or connection between the private information published and the public activity that makes the person a public figure. Here is an excerpt from my law review article:
"The relevance/nexus factor is a critical component in balancing the First Amendment and journalism ethics standards because such an inquiry takes into account the purpose, or reason, for the publication of the matter. If there is a remote nexus or connection between the truthful matter and the event or activity that brought the plaintiff to public attention or that made him or her a public figure, then the societal First Amendment interest in the information is much less compelling because the purpose for publication becomes primarily one of sensational prying into private affairs for its own sake or one of pandering to lurid curiosity."
There is a very tenuous connection between the details surrounding the death of a player's mother and what makes the player a public figure, that being his status as a professional athlete. This publication, having no social value and intruding into an extremely tragic, private and sensitive personal matter, turns journalism ethics standards on its head. Posted By : Rick Karcher
Professor Alfred Yen on Efforts by Colleges to Discourage Disappointing High School Recruits from Enrolling
Message posted on : 2009-11-20 - 18:31:00
Over on Madisonian.net, Boston College Law School Professor Alfred Yen has a thought-provoking piece on Duke basketball recruit and high school senior Clair Watkins, who, as a junior, Duke University offered a full scholarship to play (and enroll) at Duke. Watkins, an honors student, has apparently not progressed as a player and Duke recently told her that while it will honor its scholarship offer, Watkins likely wouldn't play at Duke if she enrolled. Watkins is now contemplating other college options, though she could still choose to accept Duke's full scholarship, as she has until the spring to decide.
I find this story interesting and complicated. At first blush, it's all about nasty Duke finding better players for its team and then dumping someone they had aggressively courted. That having been said, Duke apparently is willing to stick by its commitment to a 4 year scholarship if Ms. Watkins still wants to attend. Many schools would simply have withdrawn their scholarship offer, as verbal early commitments are explicitly non-binding.
So, on one hand, I find myself giving Duke respect for keeping its promise of a 4 year scholarship. Indeed, Ms. Watkins might have found herself on the bench anyway. If the Duke coach changed her mind about Ms. Watson because better players had committed to the program, or if other players outplayed Ms. Watson once she got to Duke, she'd have the same experience the Duke coach has now warned about.
On the other hand, I also think that Duke has revealed just how much it values winning basketball games over real decency. The truly decent thing to do would be for Duke to tell Ms. Watson that she needed to elevate her game in order to play, and that the coach was calling to express her commitment to helping Ms. Watson improve. To put this in perspective, should a college call an admitted student to say “We've reconsidered. You'll probably be at the bottom of your class, so maybe you'd like to go elsewhere?” Or, should a college say “We know you will find our curriculum challenging. Here are all of the academic support services that will help you thrive.”? By calling with the cold shoulder, the Duke coach was hoping to get Ms. Watson to give up her scholarship despite Duke's willingness to honor it. Apparently they didn't really want her to come to the school unless she would be a star basketball player.
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To read the rest, click here. Posted By : Michael McCann
Reebok files its Brief in American Needle v. NFL
Message posted on : 2009-11-19 - 17:15:00
This past Tuesday was the deadline for the respondents in American Needle v. NFL to file their briefs with the United States Supreme Court. Although the NFL's brief is not yet publicly available, the brief submitted by Reebok, the NFL's co-defendant in the case, is now available to be downloaded. Meanwhile, for those interested in getting a preview of the NFL's argument, both ESPN.com's Lester Munson and the SportsBusiness Journal's Liz Mullen have posted articles discussing the brief.
The earlier-filed briefs by the petitioner, American Needle, and its supporting amici are available here and here. Posted By : Nathaniel Grow
Commissioner as Justice or Executive? Thoughts on Zelinsky
Message posted on : 2009-11-17 - 09:45:00
Mike already mentioned Aaron Zelinsky's new essay (forthcoming in Yale Law Journal Online) arguing that the better baseball analogy is between Supreme Court justices and the baseball commissioner. Aaron sent me a draft of the paper and I made a few comments; he gave me permission to reprint them (in much expanded form) here.
For starters, the analogy does work in some respects. The commissioner (working, in part, with the owners) makes prospective rules of general applicability, umpires apply them in particular game settings, and the commissioner corrects their understanding of those rules when it believes the umps got it wrong.
The problem with this is that the Supreme Court makes prospective rules within the confines of review of lower court judgments through case-based decision-making. Not only does the Court establish a rule going forward, but it also dictates something about the outcome of a specific legal dispute. By contrast, the commissioner virtually never reverses a judgment (a particular ball/strike/safe out call) issued by an umpire; and he certainly virtually never reverses the sum-total of all umpire judgments, the result of a single game. The Pine Tar Game in 1984, which Aaron discusses in his paper, is one of the rare examples of this. Of course, that reversal was possible only because the umps' decision came on the very last play of the game; if it had happened in the 5th inning, the league might have had a harder time outright reversing the outcome.
Rather, it seems to me that the commissioner is better thought of as a legislator. Or better still, as the executive working together with the various teams/owners/GMs acting as the legislature. In most of the examples Aaron presents (the calling of balks, changing the strike zone, etc.), the commissioner has seen how umpires have been interpreting and applying the rules, not liked that approach, and changed the rules (or ordered a different interpretation) going forward. This very much how Congress (or Congress and the President) interact with the courts on matters of subconstitutional law--courts apply the rules in cases and, when Congress does not like the way the rules are being interpreted, understood, or applied, it changes the rules prospectively, to be applied by courts in future cases. In fact, the one thing Congress cannot do is dictate case-specific outcomes to courts; it can only set the rules
Put somewhat differently, the Supreme Court and the trial courts (who Aaron says are better comparable to umpires) are engaged in a version of the same enterprise--deciding discrete cases. The commissioner and the umpires are doing something very different from one another, just as the legislature and the courts are doing something very different from one another.
Of course, much depends on whether we see the strike zone (or the rules of the game more generally) as analogous to statutes or to the Constitution. If the strike zone is statutory, then commissioner-as-Congress makes sense, in terms of degree of control. If the strike zone is constitutional, then this does not work.
Moreover, Aaron's analogy potentially breaks down along a couple of points.
First is the difference between how the Commissioner makes legal rules to guide umpires on the ground and how the Supreme Court does. There is a difference between case-based, litigation-bound rulemaking that courts do and the more free-standing prospective rulemaking that the Commissioner engages in. Even if the Supreme Court is more concerned with rulemaking than error correction, it still makes its prospective rules rules only in the context of litigation and in the context of reviewing decisions by lower courts. While it can reach out to do a lot when it chooses, it does not have the type of free-standing rulemaking authority the commissioner has.
Second, the resulting rules are different. The
"judicial minimalism" trend (espoused by C.J. Roberts and Justice O'Connor and scholars such as Cass Sunstein) affects the analogy. The Commissioner is not and arguably should not be "minimalist"--he goes around and makes the generally applicable prospective rules he believes necessary. A Justice committed to minimalism--and bound by case-based decisionmaking--will produce less far-reaching rules. And those minimalist rules arguably will be harder to apply in future cases because their contours are less clear and more in need of fleshing out by lower courts.
Third, the Commissioner is able to act unilaterally in the best interests of the game. Aaron's essay focuses heavily on the way commissioners (notably Bart Giamatti, but including others) have wielded individual power. An individual justice can do only what four other colleagues are willing to go along with; the resulting legal rules are affected by that deliberative group-based process (as a host of recent poli sci literature has demonstrated), usually by being narrower and less far-reaching. Now maybe this means that proper analogy is not Commissioner/Justice but Commissioner/Court. But we still have to account for the differences in how an individual act as opposed to how a collective acts.
Fourth, the commissioner's realm is such that he can, if he chooses, wade into a larger swath of potential areas and issues that affect how umpires call the games. The Supreme Court, even if it wanted to hear more than the ridiculous 75 cases it hears now, could not reasonably take on any substantial percentage of the cases or issues brought to the courts in a given year. At its peak, the Court in the 1970s would hear 150-200 cases per term, a tiny fraction of the cases brought in federal and state courts.
But that points up one last break in the analogy. Aaron's argument is systemic--trying to place everyone in comparable places within the system of baseball or the judiciary. But there is no rulemaking buffer between the commissioner and the umpires; the commissioner makes the rules and the policies, the umpires follow. But the Supreme Court is not even the primary rulemaker guiding the lower courts; that role is played by the courts of appeals, especially given the Supreme Court's small caseload. And if the commissioner is the Supreme Court and the umps are the trial courts, we need to find someone in MLB who is somehow analogous to these intermediate appellate courts that do make binding prospective rules, but in a far broader array of cases. Posted By : Howard Wasserman
The dangers of consequentialism
Message posted on : 2009-11-16 - 06:33:00
Everyone is talking about Bill Belichek's decision to go for it on 4th-and-2 from the Pats' own 28 with around two minutes left (sorry Mike). And most people (including the NBC commentators speaking three-and-a-half minutes after the game) have concluded it was a bad decision. But the only reason they offered as to why the call was bad is that it did not work. Had it worked, it would have been called gutsy and a brilliant decision.
This is the problem--in both sports and law--of pure consequentialism, in which the a priori wisdom of a decision is evaluated solely by the outcome. But the decision to go for it cannot be right or wrong based solely on the result. The result is good or bad; but the decision must be evaluated independent of the outcome. Evaluating a decision as right or wrong must be based on the quality of the reasoning that went into it. Since 2001, the Pats have converted 63.5 % of attempts on 4th-and-2-or-less, a higher percentage when Brady is the quarterback. And on a day in which the offense racked up more than 400 yards and generally had moved at will, those sound like pretty good odds. Plus, in the situation, the Colds defense would be particularly worried about jumping offside, so their aggression may be ever-so-slightly-restrained. All-in-all, it strikes me as a highly unconventional, but hardly unreasonable or reckless decision. And, in fact, the play worked, except Fault did not catch the ball cleanly, thus losing forward progress as to the spot.
Gregg Easterbrook writes the Tuesday Morning Quarterback feature for espn.com and he is constantly arguing that coaches should go for it on 4th-and-short, particularly around midfield and deep in opposing territory. I am looking forward to what he has to say about this one.
Update:
The folks at Advanced NFL Stats, who know stuff about mathematical analysis that I don't, say that Belichek made the right decision. (H/T: Deadspin) The success rate on 4th-and-2 is 60% and teams score a touchdown from the opponent's 28 with 2:00 remaining approximately 53% of the time. This puts the Pats in a statistically better position than punting would have.
Further Update:
Easterbrook weighs in: Belichek was absolutely right to go for it (although he questions some of the other calls and moves, particularly the call on 3d-and-2). Easterbrook also takes on one of the sillier memes about this--Tedy Bruschi saying Belichek showed a lack of faith in his defense--by pointing out that what Belichek did was to show faith in his offense to get two yards on a day in which it averaged more than 6 yards a play.
The "lack of faith" meme rests on the assumption (which Easterbrook has been fighting) that going for it on 4th down is so far out of the norm that it is justified only in special circumstances. The assumption is that an offense really only has three downs to get a first down ordinarily and to use an additional down shows desperation of some sort--here, lack of faith in the defense. But if the mindset is that four downs means four downs and the percentages favored New England, there was nothing insulting to the defense here, just a faith in the offense within the normal rules of the game (four downs to try to get a first). Posted By : Howard Wasserman
Aaron Zelinsky on Benching the Judge-Umpire Analogy
Message posted on : 2009-11-15 - 11:17:00
Aaron Zelinsky of Yale Law School has just posted on SSRN a draft of his forthcoming piece in Yale Law Journal Online titled "The Justice as Commissioner: Benching the Judge-Umpire Analogy". It's an excellent read. Zelinsky traces the judicial history of the judge-umpire analogy since 1886, concluding that it was intended for trial court judges, and meant as a model to be rejected because of an umpire's passivity. In its place, Zelinsky proposes that Supreme Court Justices are properly analogous to Commissioners of Baseball, since both provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power.
Check out Aaron's draft here. We have also discussed this analogy on our blog -- see commentary by Howard, Geoff, and me. Posted By : Michael McCann
Boise State Athletic Department Selling Stock
Message posted on : 2009-11-12 - 07:00:00
USA Today is reporting today that Boise State has officially formed a non-profit corporation and will begin selling shares to the public at $100 per share in hopes of raising $20 million (Boise State Athletic Department Hopes Stock Offering Raises $20 Million). AD Gene Bleymaier said, "If we are to continue the success we are enjoying now we must generate new revenues to pay for coaches' salaries, scholarships and facilities." The shares will not pay dividends, but shareholders can vote on members of a 12-person board at an annual meeting and the board will determine how money raised through the offering would be spent. Bleymaier also said this fundraising program mirrors the offering made by the Green Bay Packers when they raised $24 million in the sale of more than 105,000 shares back in 1997.
If this is true, needless to say, it's a very interesting development. One would certainly think this has to violate some provision, somewhere, in that 437-page NCAA Bylaw manual. It also raises all kinds of interesting corporate law questions in the context of fiduciary duties, state and federal securities regulations and non-profit corporation laws, just to name a few. The more I think about it, this has to be a joke, right? But perhaps this is no different than what is already taking place in big-time intercollegiate athletics, the only difference is that we call them boosters instead of shareholders.
This new development also relates to the topic of my article I posted on two days ago to the extent the proceeds generated from this stock sale fund coaches' salaries. Boise State along with Cincinnati and TCU are prime candidates to have their successful football coaches solicited by competitor schools, making them soon-to-be victims of both tortious interference and breach of contract. The presidents of these three schools have a choice. They can pay their coaches more money or let them go and then proclaim that they are "powerless" to do anything about rising salaries. Or, they can exercise their legal rights and stand up for all the current and prospective student-athletes who committed to their school in reliance on the fact that their coach was obligated to be there for a period of years....the same student-athletes who, unlike their coach, are prohibited from transferring to another school. Posted By : Rick Karcher
University Presidents are Not "Powerless" to Control Coaches' Salaries
Message posted on : 2009-11-10 - 13:23:00
USA Today's latest study released today on college coaches' compensation reveals that at least 25 college head football coaches are making $2 million or more this season, which is slightly more than double the number two years ago, and the average pay for a head coach in the 120-school Football Bowl Subdivision is up 28% in that time and up 46% in three years, to $1.36 million. Two weeks ago, the Knight Commission released its survey of bowl-subdivision university presidents in which 85% of the respondents said they felt football and basketball coaches' compensation "was excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability."
With the end of the football season approaching and, hence, the beginning of the coach solicitation season, the timing is ripe to announce my new law review article on this subject titled, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations. The paper will be published in the coming weeks in the Fordham Intellectual Property, Media and Entertainment Law Journal and can be downloaded off SSRN here. I take an extensive look at the economics surrounding college coaches' contracts and the reasons for rising coaches' salaries, and then use the economics to tackle the legal question that everyone avoids like the plague, which is what can schools do about it?
From a legal standpoint, it is astonishing that schools routinely solicit and steal coaches who are under contract with another school and that these solicited coaches are free to breach their contracts with limited or no repercussion. This is not representative of free market competition, but rather unfair competition. It would be like the Cowboys soliciting Tom Brady to breach his contract with the Patriots, and even worse, the Patriots then allowing Brady to breach his contract with them. The professional leagues have "no tampering" rules that prohibit this tortious interference and the Patriots would have no qualms whatsoever about using judicial means to prevent Brady (via a negative injunction) from playing for the Cowboys. Indeed, the NFL even has a no tampering policy with respect to its coaches.
The NCAA should consider adopting a "no tampering" policy (i.e. an anti-solicitation rule) similar to the NFL's no tampering policy which essentially prohibits teams from soliciting coaches under contract. In my paper I also explain why schools are entitled to equitable relief in the form of a negative injunction to prevent their coaches from jumping ship, and there is even precedent for it specifically in the context of enforcing college coaches' contracts. Posted By : Rick Karcher
Follow-up on Buster Olney - Hardy, Hermida, Teahan
Message posted on : 2009-11-09 - 17:15:00
After posting last week about Buster Olney's article and comments about arbitration-eligible players and free agents, the Twins traded Carlos Gomez to the Brewers for J.J. Hardy; the Red Sox traded Jose Alvarez and Hunter Jones to the Marlins for Jeremy Hermida; and the White Sox acquired Mark Teahen for Chris Getz and Josh Fields. Olney posted a column on his ESPN.com site (“Hermida's Move Sure to be Replicated - 11-6-2009) supporting his earlier comments while noting that the Royals are looking to slash $10-$13 million from their payroll and peddling Teahen is a start. Teahen settled with the Royals last year at $3,575,000 after an exchange of figures ($3,050,000 - $3,850,000). Teahen was in a select group of five of the 46 players who exchanged numbers to negotiate a figure above the midpoint. As a Super Two in 2008, Teahen was able to negotiate a $2,337,500 deal that year. Apparently the Royals will contribute $1,000,000 towards Teahen's 2010 salary. Fields and Getz have quite awhile before they become arbitration-eligible.
Hardy finished four years with the Brewers with a disappointing season. In 2008, Hardy exchanged numbers with Milwaukee ($2,400,000 - $3,050,00) before agreeing to a $2,650,000 deal. In 2009, he made $4,650,000. Hardy's .229 average and drop in power numbers prompted to Brewers to make a move instead of going back into arbitration. With his demotion to AAA last year, the Brewers forced him to lose his ability to move to free agency after the upcoming season. How the Twins will handle negotiations will be interesting.
Olney's main post involved Jeremy Hermida, who moved into the salary arbitration-eligible group before the 2009 season with the Marlins. He signed in January 2009 for $2,250,000. The Red Sox will accept his arbitration-eligible status without much complaint.
Hardy, Hermida, and Teahen are now set. Their new teams will advance through the negotiation and arbitration process, if necessary, to sign their new acquisitions. Posted By : Ed Edmonds
Tulane Law School Baseball Arbitration Competition
Message posted on : 2009-11-06 - 22:48:00
I am proud to announce that the Tulane Law School Sports Law Society will be hosting its third annual National Baseball Arbitration Competition from January 22-24, 2010. This is a really great and unique event that allows students to argue a baseball arbitration case involving real players and real statistics. We already have a number of great guest arbitrators lined up to judge the competition and will have students from schools across the country competing in the event. The official announcement from the Tulane Sports Law Society is attached below. Click here for the competition's website and more information. I look forward to seeing many of you down in New Orleans for the competition...
About the Competition The Tulane Law School Sports Law Society is pleased to invite your school to compete in the 2010 Tulane Law School National Baseball Arbitration Competition. The Baseball Arbitration Competition is a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball. Like most law school moot court competitions, the Competition's main goal is to provide participants with the opportunity to sharpen their oral and written advocacy skills, which are essential for a successful career as an attorney. The Competition, however, is unique in that it allows law students across the country with an interest in the growing body of sports law to sharpen these skills within the specialized context of Major League Baseball's salary arbitration proceedings. This will be an exciting and educational legal exercise for all participants, as it will provide participants an opportunity to learn more about one of the legal processes used in the sports industry. In its two-year history the Competition has grown significantly, and we fully expect an increase in participation once again.
Schedule & Registration Materials The Baseball Arbitration Competition is open to any ABA accredited law school. This year, the Competition will begin the evening of Friday, January 22nd, with a reception for competitors and participants. Competition rounds will begin the morning of Saturday, January 23rd, and continue through the afternoon of Sunday, January 24th. Posted By : Gabe Feldman
The Changing Landscape of Salary Arbitration-Eligible Players and Free Agents in Baseball
Message posted on : 2009-11-06 - 21:54:00
With the Yankees winning the World Series last night, the off-season officially began this morning. The clock starts ticking on the free agent filing period of 15 days after the end of the World Series. Buster Olney appeared on Mike and Mike on ESPN this morning. He started his segment with the same point that he made in an article on ESPN Insider on Sunday titled “Baseball's Next Great Economic Disparity.”
Let me quote from his posting:
“Baseball's financial structure appears to have reached a tipping point that can be defined simply. ‘The arbitration process is now outdated,' said a highly ranked executive, ‘because the players can get more money in arbitration than they would through free agency.' So now teams are about to adjust to this reality, and this is why multiple general managers expect that dozens of young players with three, four and five years of major league experience will be cut loose rather than offered arbitration in the next 41 days. Not a handful, but dozens.
During the past 48 hours, I went through the rosters with some executives and counted 93 solid non-tender candidates -- players whose current teams simply won't offer them contracts for 2010. If the final numbers come close to that figure, close to 300 veteran players will be looking for jobs in the winter, a staggering number that will inevitably depress the asking prices for free agents.”
Examples that Olney offered in his posted article were J.J. Hardy of the Milwaukee Brewers, Jeremy Hermida of the Florida Marlins, and Bobby Jenks of the Chicago White Sox. In both the article and this morning on Mike and Mike, Olney offered that the big market teams will be able to sign their top choices of both traditional free agents (six years of service) and non-tendered arbitration-eligible players. Small market teams might benefit from a depressed market overall for free agents.
I think that Buster Olney is right on top of this issue. The first two important dates to remember are December 1 and December 7. December 1 is the last day for teams to offer arbitration to their former players who became free agents. Monday, December 7, is the last day for a former free agent to accept arbitration. The non-tender date is December 12. After free agents file, teams have the right the offer arbitration. Often they will do this for projected Type A and Type B free agents to gain a draft choice if the player turns down the offer. Players turn down the offer to talk to all teams about a deal for the upcoming year. If they accept arbitration, they have basically agreed to a contractual relationship with their existing team. They can negotiate a deal or allow the arbitration panel to decide the appropriate amount. This year might be strategically different, however, because of the changing landscape. There will be a lot more free agents this year based on Olney's prediction. If you offer arbitration to a Type A or Type B free agent, that player and his agent might just accept arbitration when they would have turned it down previously with different market conditions because an arbitration panel might award a figure that is higher than the deal that the player and agent could get on an open free agent market.
I will be monitoring all of this activity in the off-season, and I will post occasional musings. Posted By : Ed Edmonds
The [NHL] apparently doesn't want the Coyotes for long, and they are already in talks to sell the team to an investment group represented by Cadwalader, Wickersham & Taft . . .
Monday's hearing at the federal bankruptcy court in Phoenix . . . was the first major gathering of the main legal players since the federal judge handling the case took the unusual step last month of tossing out both bids for the team--the NHL's $140 million bid and a much larger offer from Canadian business mogul Jim Balsillie, who wanted to move the team to Ontario. As we've written before, Judge Redfield T. Baum tossed the bids for very different reasons . . .
. . . But what really happened, according to four lawyers on the case, is that the NHL simply clarified the final bid it submitted more than a month ago. At the outset of the hearing, lawyers for the NHL and the creditors committee (represented by Paul Sala of Allen, Sala & Bayne) pointed out to Judge Baum that the NHL was not actually proposing to pay some unsecured creditors ahead of others. Rather, the lawyers told Baum, the league was offering to purchase the claims of those allegedly favored creditors--about $11.6 million, mostly owed to local vendors. The rest of the NHL's bid price--$128.4 million---would go to the bankrupt estate to be distributed to secured and unsecured creditors in the proper manner . . . .
Judge Baum is expected to approve the deal as soon as Monday. The next step would be for the NHL to sell the team . . .
One interesting note from McCann: Baum's earlier ruling allowing the NHL in as a bidder reinforces the notion that sports leagues have some momentum in getting around antitrust laws. Earlier this year, the U.S. Court of Appeals for the Seventh Circuit ruled that the National Football League could act as a so-called single entity--exempt from antitrust laws--in signing apparel licensing agreements. (The U.S. Supreme Court had previously reserved single entity status for parents and their wholly owned subsidiaries, McCann says.) One apparel maker (American Needle Co.) has objected, claiming that the 32 NFL teams are separate businesses, and that apparel makers should be able to negotiate separately with all of them. The appeals court rejected that argument, holding that the NFL could be considered a single entity for the purpose of licensing agreements even though the teams are very clearly separate businesses, McCann says. The case is now headed to the U.S. Supreme Court.
The NHL cited the Seventh Circuit's ruling in the Coyotes case, in effect saying the league could bid for and own an individual team. That suggests how much importance leagues are placing on the outcome of the American Needle case, McCann says.
Posted By : Michael McCann
Referees Injured by Tortious or Criminal Behavior of Players
Message posted on : 2009-11-06 - 08:31:00
Victoria E. Freile and Claudia Vargas of the Rochester Democrat and Chronicle have an interesting piece on a sports law topic that we often don't discuss: referees injured by the tortious or criminal behavior of players. They focus on a recent incident in an adult amateur football game played in Rochester which generated a felony charge for a player. Here's an excerpt:
On the day a football player was in court facing felony charges in connection with an attack on a referee, football officials said the adult amateur league will have a tough time finding referees to officiate games next season.
Leon R. Woods, 23, of Rochester was charged with first-degree assault, a felony, in connection with the attack on Pete McCabe, 54, of Lakeville, Livingston County. Woods, a running back for the Western New York Cougars, a team from Rochester, is accused of intentionally swinging his helmet and striking McCabe in the face after a game at Edgerton Park on Saturday.
McCabe, who was one of several referees officiating the end-of-season playoff game between Rochester and Utica, suffered severe lacerations, a broken jaw and nose and internal injuries. . . .
Referee Robert Lockhart, 54, told police that he saw a player running down the sideline, holding his helmet. "He then ran up to (McCabe) and swung his helmet like a weapon," Lockhart said. "It was like a roundhouse punch. He hit (McCabe) right in his face." McCabe immediately went limp and fell to the ground, he said. Blood was gushing from his face, he said.
To read the rest, click here. Posted By : Michael McCann
Peter's book is devoted to the sports law of Major League Baseball, the National Football League, and the National Basketball Association. I just finished reading a copy of it, and it's excellent. I particularly like its clarity and brevity (167 pages, not including appendixes; appendixes include the MLB Uniform Player Contract, the NFL Standard Player Contract, and the NBA Uniform Player Contract) -- it addresses all of the key decisions and also provides useful practical materials, such as an actual naming rights agreement between the Red Sox and Anheuser-Busch (pages 125 to 135).
Peter has also just published Representing the Professional Athlete (West, 2009), another excellent work. This one is about hands-on training for acting as a player agent.
As a follow up to Nathaniel's post on the Star Caps hearing, the written testimony of all of the witnesses and the video of the hearing can be found here (note that the testimony from the witnesses does not begin until about the 1:26:48 mark).
Here is the full witness list: Roger Goodell, Commissioner, National Football League; DeMaurice Smith, Executive Director, National Football League Players Association; Rob Manfred, Executive Vice President, Labor and Human Resources, Office of the Commissioner of Baseball, Major League Baseball; Michael S. Weiner, General Counsel, Major League Baseball Players Association; Travis Tygart, Chief Executive Officer, United States Anti-Doping Agency; Jeffrey Standen, Professor of Law, Willamette University College of Law; Gabriel Feldman, Associate Professor of Law and Director, Sports Law Program, Tulane University Law School.
During additional testimony before the committee, Gabriel A. Feldman, associate professor of law at Tulane University and the director for the Tulane sports law program, laid out a more detailed argument against congressional action.
“It is important to emphasize that the Eighth Circuit did not hold that the NFL [Performance Enhancing Drug] Policy violates Minnesota law,” he said in prepared testimony. “Instead, the court only held that the Williamses may challenge their suspensions in Minnesota state court under state law.”
Thus, Feldman concluded that it was only a “potential” problem. And even if the court did ultimately rule in favor of the Williamses, it was still a “narrow” problem because only three states, including Minnesota, currently have drug-testing laws that might conflict with the NFL policy.
“This narrow potential problem warrants a very narrow solution, and many steps should be taken before Congress intervenes,” said Feldman. “The most appropriate — and simple — solution is for the NFL to litigate the case in state court and convince the court that the Minnesota Laws were not intended to apply to the NFL [Performance Enhancing Drug] Policy and that suspensions do not violate the Minnesota Laws. If that suit is unsuccessful, the NFL should seek an exemption from the state Legislature that makes it clear that the Minnesota Laws do not apply … If that fails, the NFL and the players association should try to bargain around the Minnesota Laws. If that fails, then, only as a last resort, Congress should consider passing a narrow federal law that will protect” the NFL policy.
Goodell retorted that if a national law was not enacted, then other states could ultimately change their laws to conflict with NFL policy. Feldman, however, stated that there was little chance of that happening.
In the end, subcommittee chairman Bobby Rush of Illinois seemed to side with Feldman.
Rush said that he would be keeping a “wary eye” on the Williamses' case, but warned that “you can't tell what members of Congress might ultimately do once you open up Pandora's Box.”
“I would just ask that you all try to work this thing out,” Rush told the gathered panel.
Finally, Mark Maske of the Washington Post wrote a piece discussing the study of state employee drug testing laws that I conducted for the hearing. The
study concluded that only 3 states (Minnesota, Maryland, and North Carolina) currently have workplace drug testing laws that might conflict with the NFL's performance enhancing drug testing policy. Many thanks to Andrew Miragliotta, a sports law student here at Tulane Law School, for helping with the study. Posted By : Gabe Feldman
Congress Considers the StarCaps Case
Message posted on : 2009-11-03 - 16:55:00
A Congressional hearing was held today regarding whether to amend the Labor Management Relations Act in order to protect professional sports leagues' performance enhancing drug policies from being attacked under state law. The hearing was held in response to the 8th Circuit's recent decision in Williams v. NFL (i.e., the "StarCaps" case), and featured testimony from NFL commissioner Roger Goodell, NFLPA executive director DeMaurice Smith, Rob Manfred, Major League Baseball's executive vice president of labor relations, and Michael Weiner, the MLBPA's general counsel. Sports Law Blog's Gabe Feldman is quoted in the New York Times' report on the hearing. Meanwhile, Paul Secunda, a professor at the Marquette University Law School, has posted some thoughts regarding the hearing and the Williams case over at PrawfsBlawg.
For more on the Williams case, see Gabe's prior posts on the litigation, as well as the thoughts of Willamette law professor Jeffrey Standen at the Sports Law Professor Blog. Posted By : Nathaniel Grow
U.S. Supreme Court to hear American Needle v. NFL on January 13, 2010
Message posted on : 2009-11-02 - 20:50:00
The U.S. Supreme Court released its January calendar today, and announced that American Needle v. NFL will be heard on Wednesday, January 13, 2010 (h/t Ryan Rodenberg of Legal Aspects of Sports Blog). For past Sports Law Blog coverage on the case, click here. For links to various amicus briefs and other court materials, click here.
Gabriel Feldman, The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense, 2009 Wisconsin Law Review __ (forthcoming, 2009)
Nathaniel Grow, There's No ‘I' in ‘League': Professional Sports Leagues and the Single Entity Defense, 105 Michigan Law Review 183 (2006)
Michael McCann, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 Yale Law Journal __ (forthcoming, 2009)
Posted By : Michael McCann
Do Pro Athletes Commit Crimes at Unusually High Rates?
But pro athletes aren't actually more likely to commit crimes that the average citizen. It just seems that way because of all the attention their cases get.
"I don't think there's any empirical evidence showing that professional athletes are more likely to commit crimes than the typical person," says Michael McCann, a sports law expert at Vermont Law School.
Most players are "just regular citizens that follow the law and are as good or as bad as the rest of us," McCann says. "We're definitely skewed...because a handful of players get in trouble repeatedly."
Geoffrey Rapp, a law professor at University of Toledo, says he hasn't seen evidence to show there's more criminality among athletes, but the cases that arise make sense. "We're talking about people who their whole lives have been praised...for being violent."
"It's possible that athletes become a bit de-sensitized to the consequences of their actions," says Rapp. Plus, when people are wealthy, they "tend to think they can get away with murder."
But it's wrong to assume pros get off easy.
Lisa Kern Griffin, a professor at Duke Law, says that while sports stars may be better represented because of their wealth, "I don't think that athletes are treated differently in the courtroom." Plus, all the attention can mean they don't get off with small infractions that others may not be prosecuted for, says Griffin.
For the rest, click here. Posted By : Michael McCann
Buzz Bissinger Op-Ed in today's New York Times on NBA's Eligiblity Restriction: From Supporter to Opponent
Message posted on : 2009-10-27 - 09:14:00
Pulitzer prize winner H.G. "Buzz" Bissinger (author of the famed Friday Night Lights and LeBron James' co-author of Shooting Stars) pens an outstanding op-ed in today's New York Times on the NBA's eligibility rule, which Bissinger admits he thought was a good idea back in 2005 but now believes was a terrible idea. I'm honored that Bissinger would cite a couple of my studies in his piece (which is on page A25 of today's paper). Here are a couple of excerpts:
* * *
So I was pleased that, as part of a new collective bargaining agreement with the players' union, rules were established requiring American players to be at least a year removed from high school and a minimum of 19 to be eligible for the N.B.A. draft. This meant that young superstars would generally go to college, at least for one year. Beyond simply advancing their skills, I thought, it might turn them on to the value of an education, maybe enough to stay in school longer.
Now, with another N.B.A. regular season beginning today, the issue still rages, with ramifications that go directly to the heart of whether any professional sports league has actual concern for its athletes beyond a smokescreen of clever spin. And in looking back at Stern's decision, I am now convinced that we got punked.
. . .
Stern raised the age in large part because N.B.A. owners and general managers resented the amount of time it took to train players straight out of high school. He did it because owners did not like the possibility of players becoming free agents, able to join any other team in the league, in their early 20s. My guess is that he also did it to appease the National Collegiate Athletic Association; you could hear the whining that the N.B.A.'s version of cradle-robbing was denying the college game great players who could sell out arenas.
There are disaster stories of players entering the draft from high school and failing spectacularly. But as tragic as the stories are, they are an exception. A study by Michael McCann, a professor at Vermont Law School who is an expert on sports and legal issues, pointed out that of the 21 high school players who declared for the draft from 1975 to 2001, four became superstars — Kevin Garnett, Kobe Bryant, Jermaine O'Neal and Tracy McGrady — and only four never made it to the N.B.A. This trend held with the high school draft classes of 2002 through 2005, the year the ban was put in place: of the 26 players drafted, 20 were still playing through last season and three have become superstars: Amar'e Stoudemire, Dwight Howard and James.
The frequent argument that players drafted straight from high school are more prone to quickly get into trouble because of their age has also proved wrong. According to a study by McCann in 2005 of the most recent 84 arrests of pro players, more than half the arrestees had spent four years on a university campus but only 4.8 percent never went to college (even though players without any college experience made up 8.3 percent of the league
population).
* * *
There's much more in the op-ed, a definite read if you're interested in eligibility rules for professional sports, particularly the NBA. And like many of you, I'm psyched about the NBA season starting tonight!
Sports Law Blog's Joe Rosen Signs Red Sox Reliever Hideki Okajima as Client
Message posted on : 2009-10-25 - 10:06:00
Congratulations to agent/attorney Joe Rosen, who has guest blogged here on a number of occasions (including in 2005 when he asked "Is NASCAR a Sport?"), on signing as a client Boston Red Sox reliever Hideki Okajima. This news has been reported in the Boston Globe and Boston Herald, among other media outlets.
Joe is the President of the Baseball and Media Divisions of the Boston-based Orpheus Sports & Entertainment, which he co-founded with fellow agent/attorney Chris Brown. Both graduated from Boston College Law School in 1998 and both have taught sports and entertainment law courses at BC Law since. I have worked with both of them on a variety projects, including co-authoring a law review article on age eligibility rules in the NBA and NFL, and I'm thrilled to see the growth of their firm, which represents a number of prominent players and top prospects, as well as prominent media personalities, including WEEI's Jon Meterparel, who is the play-by-play voice of Boston College football games.
Back to the Okajima signing, the Boston Herald has details on some of the motivations for Okajima to move from one agent to Joe:
Red Sox left-handed reliever Hideki Okajima hired a new agent near the end of the season as a result of a rather large misunderstanding he had with his previous one, according to his new agent, Boston-based Joe Rosen.
“Hideki believed he was going to be a free agent at the end of his contract this year,” Rosen said. “There was some reason for him to believe it, but he was not misled by the agent (Peter Greenberg).”
Okajima's disappointment over the misunderstanding led to the agent switch, according to Rosen, who said that Okajima has moved beyond the issue. Okajima is arbitration eligible but due to his contract language, must be offered that contract by Nov. 10, Rosen said.
According to his new agent, Okajima is “very” happy to be a Red Sox and that “he likes it here.” Okajima plans to leave for Japan next month with a stop in Hawaii before beginning his normal offseason training program later in the winter in Australia. Rosen said he was unsure if Okajima planned on running in the Honolulu Marathon as he did last December. His time was 6:08:35 - which is a pace of 14:03 per mile - which means Okajima did more walking than running. .
Congrats again to Joe. Posted By : Michael McCann
Media self-protection?
Message posted on : 2009-10-24 - 22:11:00
University of Montana football coach Bobby Hauck is gettingrakedover the coals because he (and the members of the team) are refusing to speak with reporters from The Kamin, the student newspaper, after the paper published a story (the facts of which have not been contested or criticized) about an on-campus assault allegedly involving two players. Hauck has publicly humiliated student reporters when they have tried to ask football-related questions at his weekly press conference ("Oh, now you want something from me?").
Hauck is certainly not the first college coach to go off on a 20-year-old student reporter in a way he most-assuredly never would do with a member of the professional (especially national) press, who he needs to publicize his team. (See, famously, Oklahoma State coach Mike Gundy's "I'm a man, I'm 40" rant).
Here's what I find interesting and somewhat disappointing. No one from the professional media (the Missoula paper or local TV outlets) seems to have come to The Kamin's defense, namely by refusing to cover the team unless Hauck (if not the players) stopped boycotting student reporters. Contrast this with the stance of mainstream news outlets such as The Times as to the White House feud with Fox News; several have talked of not attending WH press events if Fox is excluded. For all the criticism of Hauck, this never seems to have come up.