With 747 career home runs, Barry Bonds is just eight away from tying Hank Aaron's major league record of 755, perhaps the most storied record in baseball history. Bonds has already hit 13 home runs this season, and according to ESPN.com, is on pace to hit 35 by the end of the season--not too shabby for a soon-to-be 43 year old.
More meaningfully, when Bonds hits career home run #756, he will break Aaron's record. And when that happens there will be a celebration of some type--the actual "type" remains to be seen, as many in baseball will discount Bonds' achievement as steroid-assisted. In fact, MLB Commissioner Bud Selig is said to be undecided about attending, while the 73-year-old Aaron has already said that he will not be there. If it happens on the road, Bonds will certainly get his share of boos, but home or away, I suspect most of the crowd will cheer for him.
But what will happen before the celebration and right as an otherwise ordinary baseball becomes the record-breaking baseball? That baseball will travel into a part of the ballpark, and anyone who is anywhere near it will go for it, and probably go for it hard. And that's because regardless of what one thinks of Bonds and his record-deservedness, the baseball he hits to set the new record will be worth a lot of money.
Just consider what other record-breaking balls have fetched. As reported by blogger Larry Brown on Barry's World, Mark McGwire's 70th home run ball sold for $3 million, while Bond's own home run ball that broke Babe Ruth's 714 career mark sold for over $200,000. So how much will the baseball for the all-time home run champ be worth? A lot. Even if you don't like the champ's personality or question the means he employed to become the champ, you know that the record-breaking baseball he hits would be great to own.
Not surprisingly, auction houses have expressed an interest in purchasing the ball from whomever catches it. One such house, Heritage Auction Galleries, even put a $1 million bounty on it. But then it pulled the promise. Why? As Darren Rovell details on Sports Biz, Heritage claims that it didn't want to be exposed to a negligence claim should--in Heritage's words--a "melee" break out as fans compete for the ball, thereby exposing themselves and others nearby to injury. Rovell, however, believes that Heritage's real reason for dropping the bid is that company officials became uncertain about the ball's value on the open market, and thus their stated reason for dropping the bid--liability for causing or contributing to a melee--is probably pretext.
I tend to agree with Rovell's analysis. With or without Heritage's public intentions to buy the ball for $1 million, some fans in the ballpark are going to compete
vigorously for the ball, assuming it is hit to a part of the ballpark that lends itself to such competition. After-all, it's no mystery that the ball will have significant market value--it's the ball that will break perhaps the most cherished baseball record--and that knowledge will undoubtedly affect the behavior of those in the ballpark; some may even become violently aggressive, particularly if they have had too much too drink. While Heritage's involvement might illuminate the ball's value, I doubt it would turn otherwise docile fans into crazed ball hawks. Along those lines, while I understand the premise of Heritage's stated worry, it seems rather quixotic in practice. Moreover, if a melee were to occur and injuries result, it would seem that the ballpark, host team, and the company employed to provide security would be more vulnerable to liability, as they would be involved in the stadium's security [for more on the subject of stadium security and tort liability, please see my article
I also wonder about the track record of fans fighting for home run or even foul balls. Do fans actually fight and injure one another while trying to get baseballs? The
San Francisco Chronicle reports that a fist fight
almost broke out over Bonds' 73rd and final home run in his record-breaking 2001 season, but I'm unaware of violence and resulting tort lawsuits from melees over baseballs. If you know of such instances, please share.
Having said that, when Henry Aaron broke Babe Ruth's record on April 8, 1974 before his home crowd in Atlanta, an unquestionably animated crowd reaction ensued (although there was no competition for the ball, as it was caught by Braves' closer Tom House):
Posted By : Michael McCann
Blogging and Broadcasting
Message posted on : 2007-06-12 - 08:25:00
Yesterday, Howard discussed the NCAA blogging incident primarily from a First Amendment standpoint. I wanted to focus more on the intellectual property question and respond to two points raised in his post:
First Point: "I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted." [The newspaper's attorney, Jon Fleischaker, said something similar to that effect: "Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact."]
These comments tend to echo the rationale of the Second Circuit in NBA v. Motorola. However, there is no dispute that facts cannot be copyrighted because copyright law protects "original works of authorship." Thus, the fact that SportsTrax displayed on its pagers purely factual information on NBA games in progress was held not to violate the copyright of the broadcasts. But the debatable issue in Motorola was not the copyright issue, but whether SportsTrax unlawfully misappropriated the NBA's property right in its games; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs. I happen to think Motorola was wrongly decided, and for a contrary holding involving the same issue, see Morris Communications, Inc. v. PGA Tour.
Thus, the NCAA would not claim that it has a copyright to the facts of the underlying event. The NCAA would instead argue that it has a right to control who disseminates reports and accounts of the game and to enter exclusive license arrangements with those who disseminate them. The NCAA would rely on the landmark case of Pittsburgh Athletic Co. v. KQV Broadcasting Co. In that case, KQV had its own paid observers watch the games from vantage points outside the stadium and on premises leased by KQV such that the observers could see over the stadium enclosures, and then broadcasted radio play-by-play descriptions of the games over its airways. The Pirates sued claiming that KQV was violating its exclusive radio broadcasting arrangement with NBC. The court correctly ruled against KQV: "The right, title and interest in and to the baseball games played within the parks of members of the National League, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."
KQV certainly would not be permitted to do inside the stadium what it was prohibited from doing outside the stadium. So whether Bennett is blogging inside the stadium or outside the stadium is irrelevant. Thus, I disagree with Howard's statement that "if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room." Simply, radio stations are prohibited from having personnel watch games on television from their living rooms and disseminate radio broadcasts of the game without a license. The key question to me is whether disseminating "in progress" reports and accounts of the live game over the internet constitutes a broadcast. If it does, then Bennett loses, which gets us to Howard's next point.
Second Point: "No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights? Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. [Fleischaker made a similar remark: "The blog wasn't a simulcast
or a recreation of the game. It was an analysis."]
I don't see how we can easily dismiss the broadcasting question. If Bennett is talking about what happened simultaneously as he saw it happen, how is that any different than a radio broadcast? Isn't what Bennett was doing simply a broadcast of the game over the internet? Bennett was providing in-depth analysis and play-by-play of the live event, which goes beyond merely providing updates of the score over a pager. This makes the situation distinguishable from Motorola, in which the court acknowledged two products constituting the NBA's primary business: (1) generating the information by playing the games; and (2) transmitting live, full descriptions of those games. The court was of the opinion that SportsTrax was not competing with the NBA's second product because SportsTrax was collecting and retransmitting strictly factual material about the games.
The rationale here is fairly straight forward: The value of any game is at its peak while it is being played. If a third party can transmit live, full descriptions of the games without a license, then it jeopardizes the league's property interest in the live event. When that happens, the league loses the incentive to produce the live event. And I'm not buying the "fair use" defense here. Bennett isn't informing the public in a limited manner about the outcome of the game. He is simply using his capacity as a newsreporter to disguise what he is actually doing -- broadcasting the event.
Posted By : Rick Karcher
More Speech Retrictions in Sports: The NCAA and Live-Blogging
Message posted on : 2007-06-11 - 21:40:00
Thanks to everyone who has e-mailed and commented on the story about Real Salt Lake. But that free-speech controversy, which occurred last Thursday, is old news; it thus takes a backseat to a newer, fresher free-speech controversy.
Last Friday, writer Brian Bennett of the Louisville Courier-Journal had his media credentials revoked and was removed from the press box at the University of Louisville's Jim Patterson Stadium. The reason? He was live-blogging the NCAA Super-Regional Baseball game between U-L and Oklahoma State. This apparently violated an NCAA policy that deems live-blogging to be a "live representation of the game" and thus a violation of the NCAA's broadcast agreements with CBS and ESPN. The NCAA also seems to argue that the events at games are its intellectual property and can be distributed while the game is going on ("between the first pitch and the final out of each game") only through NCAA-approved outlets. The NCAA wants to ensure that the public either is watching an NCAA-approved broadcast on television or on a web feed; no reading about it on other sites. Reports and comments here, here, here, here, here, here, and here. Thanks to several alert readers and commenters for bringing this up.
The Courier-Journal is making First Amendment noises, pointing out that its writers are being prevented from reporting about events occurring in a public facility. So, as my favorite Soprano's commentator would say, let's deconstruct.
Unlike our previous examples, state action is not a problem. The University of Louisville is a public institution and Jim Patterson Stadium is a public, on-campus facility. The fact that U-L was enforcing an NCAA rule, rather than one of its own making, is irrelevant. U-L adopted the rule and made it its own by enforcing it. One report on the story states that U-L acted to revoke Bennett's credentials only after the NCAA told U-L officials that failure to enforce the rules might be used to deny U-L future opportunities to host NCAA events. So it would be ironic if doing so caused U-L to violate the First Amendment. But that is what happens when institutions get into bed with the NCAA.
So, some thoughts about the free-speech concerns.
1) I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted. But I invite those with more knowledge of intellectual property (including my co-bloggers) to educate me on this point.
2) No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights?
Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. And consider an additional problem with the rule--if Bennett had live-blogged the game off a television broadcast (which is
usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room.
3) How far can this rule extend? Could the NCAA stop a fan in the bleachers from describing the action via his cell phone? Could it stop someone from calling his friend, where the friend is sitting by a computer at Starbucks waiting to live-blog the report (remember the scene in Bull Durham, showing how they did radion broadcasts of the team's away games?)? Could the NCAA stop a fan in the bleachers with a WiFi connection or a Blackberry from live-blogging? If the answer to those questions is no, as I think it must be, then the NCAA's rule is invalid because it treats non-media speakers better than media speakers.
4) Related to # 3: Deadspin points out that wire services have historically provided running in-game updates--reporters provided editors with updates, which were sent out over the wires. Live-blogging seems to work on the same principle. It is faster and uses different technology. And it reaches the end-user (the reader) directly and in real-time, rather than being filtered through the editor and the wire. But there is no meaningful distinction.
5) Here is the potential wrinkle: The dispute here is about access to a particular, narrow part of the stadium: the press box and everything that comes with media credentials. Teams generally have greater (although not unlimited) discretion in deciding who gets such media credentials, while exercising no discretion over who can, by buying a ticket, access the broader public forum of the stands. Presumably, U-L/NCAA could set some conditions on granting those credentials (conditions it could not impose on the ordinary bleacher bum). Might one permissible condition be a limit on the time and manner in which reporters could provide information to the public--no live reports until the game ends?
It seems like a content-neutral rule--it applies to everyone reporting about the game, regardless of what they are going to say. But I would suggest it still fails because it does not appear to serve any meaningful government interest. I cannot see a valid justification or interest underlying this rule.
Let me close on two points. First, Deadspin predicts that, given the stream of bad publicity for the NCAA (which certainly does not need more bad publicity or more events illustrating its institutional incompetence), the policy will be gone within a week (i.e., by the start of the College World Series). I think they are right.
Second, and a determinant of the first, much depends the media rallies to the Courier-Journal's defense and how much noise the media makes about this. And that depends on how willing the old media is to support the new-media bloggers that MSM reports spend so much time railing about. It helps that the blogger in this instance works for a good, old-fashioned newspaper. But this is the future of sports writing.
A host of newspapers and media outlets got behind Larry Flynt and Hustler Magazine when they were sued by Jerry Falwell. If the old media can support a pornographer, can they support a blogger?
Posted By : Howard Wasserman
The Political Content of Cheering Speech
Message posted on : 2007-06-10 - 11:06:00
Is it me or do there seem to be an increasing number of instances of sports teams attempting to control fan cheering speech? I blogged about two recent examples here and here and I wrote at length about it a year ago here.
Now via RSLFM, a blog devoted to the MLS's Real Salt Lake, comes this report (on the home page, click on 6/9/07 to get to the page). Last Thursday, RSL played the People's Republic of China in a friendly at Rice-Eccles Stadium on the campus of the University of Utah. Several fans showed up with flags from Taiwan and Tibet (see photos above) and banners reading "6-4" (a reference to Tienanmen Square). During the second half, several players from the Chinese team refused to continue playing until the flags and fans were removed. Which they were; RSL team officials, apparently assisted by University of Utah campus police, told the fans to put the flags away or get out of the stadium. The RSLFM link has video. A full discussion of the controversy on one local media outlet can be found here; the outrage among some seems to be that the Chinese government is dictating what speech is permitted and what is offensive in Salt Lake City.
Cheering speech is not limited to "insignificant" cheering, jeering, and heckling about the game and players. Rather, cheering speech can, and often does, include pure political expression that is uniquely appropriate at a sporting event. Here, we have a clear protest against the repressive policies of the Chinese government towards Tibet, Taiwan, and its own people. Sports is immersed in political and social overtones in most situations. That is even more so in this instance, given that a representative of the Chinese government was playing in the game. The grandstand should be the ideal forum for this protest and this expression.
This also shows the problem with fan-conduct codes, such as the one in Seattle, that prohibit "taunting." At some level, that is what the fans were doing--flaunting the symbols of China's human rights abuses and heckling the players for their connection to the Chinese government and those policies. Fans were, in part, being provocative in displaying these symbols at the Chinese players, coaches, and officials. But given the overtly political content, the expression of such views cannot be prohibited consistent with the First Amendment.
RSL has defended its decision, arguing that it had the power to remove fans who "disrupted" the game. But the "disruption" resulted from several Chinese players refusing to play until the offending speech and speakers were removed. The general First Amendment principle is that government cannot prohibit speech simply because some listener will be offended or annoyed by that speech--especially when we are in the realm of pure political protest.
Which brings us back to the key issue: State action. Rice-Eccles Stadium is a public facility (owned by the State of Utah), RSL is a private entity renting that facility for what it terms a "private event." In arguing that teams such as the Yankees and Mariners become state actors in operating publicly funded and owned stadium, my paradigm was the typical
major-sport situation: The stadium was built specifically for the team's long-term and exclusive or near-exclusive use, with the team given substantial or total control over, and benefits from, the stadium. I did not have in mind the situation here: RSL is not the exclusive or even predominant tenant, it does not appear to be a long-term tenant, and it does not use the stadium on the sort of favorable terms that, for example, the Mariners use Safeco Field. Perhaps this situation represents a middle ground between exclusive use (the Mariners at Safeco Field) and one-time use (a private organization given a one-time permit to hold the annual Gay Pride Parade down city streets), requiring some line-drawing as to where on the state-action line the team should fall along a continuum. This will be a detailed factual inquiry, looking at how often and how long the team uses the stadium and the terms and conditions of that use.
Alternatively, this situation may be more analogous to the private entity with a permit to hold a parade or rally in public spaces--I would not suggest that such a private entity becomes a state actor in all cases.
But this case presents one additional factual wrinkle--apparently, University of Utah police were directly involved in carrying out RSL's demand that the flag-wavers be removed. This fact is important in two respects. First, direct police participation enhances the argument for "entwinement" between the team and the government under Brentwood, since the team's decisions in the management of a public space are being carried out directly by an arm of the government. Second, direct police participation may mean it does not matter whether RSL is a state actor because it was the police (i.e., the State) that carried out the First Amendment violation by removing the fans for their expression, potentially subjecting the officers themselves to First Amendment suit by.
Police involvement also knocks out RSL's argument that this is a private event that RSL can control. This is true for what occurs on the field, but less true for what occurs in the grandstand that has been opened to the public for the specific purpose of engaging in expression. Return to the parade analogy: If a gay rights group obtains a permit to hold the Gay Pride Parade, it can control who participates in the parade and what gets said as part of the parade. But it cannot control what happens along the parade route. I believe there would be a First Amendment violation if the parade organizers insisted that police remove from the crowd an individual carrying a "God Hates Fags" banner.
But let's put to one side state action and whether RSL could be legally liable for removing the fans. Let's consider the broader question of whether a private entity should restrict fan speech in this context, even if it can. The grandstand is a forum designed and opened to the public for cheering speech. A proper respect for the principles and ideals of free expression should command teams to recognize the full range of expression in that category and to allow discussion, particularly the political discussion, in the fan spaces to be "uninhibited, robust, and wide-open."
Posted By : Howard Wasserman
Daunte Culpepper: Walking Alone On and Off the Field
Message posted on : 2007-06-09 - 12:45:00
Yesterday was not a good day for Miami Dolphins quarterback Daunte Culpepper. The 30-year-old, who was supplanted as the team's starter earlier in the week upon the trade for Trent Green, was only allowed by Dolphins' officials to participate in individual drills during mini-camp; despite his desire to practice with his teammates, the coaching staff told him that he could not do so. Why? They thought that it would make sense to ease him back as he recovers from re-constructive knee surgery--especially as the front office tries to trade him with Green on the roster.
In response to the practice restrictions, Culpepper walked off the field, accompanied by a member of the Dolphins' security staff. Clearly, the frustration of losing his starting job, coupled with being separated from his teammates by team officials who thought he wasn't good enough to start, got to him, as it would to many players in that situation.
So how will the Dolphins and Culpepper work out their problems? A trade doesn't appear to be an option: Culpepper says that he will not report to any team that trades for him. Instead, he wants his outright release so that he can pick his next team. Aside from getting that choice, I suspect Culpepper might also want to see the Dolphins not get compensation for him. But the Dolphins don't want to release a player who has trade value. So both sides seem to lose here: Culpepper stays away from the team, perhaps looking selfish and not getting paid, while new Dolphins head coach Cam Cameron begins his coaching tenure with a much unwanted distraction, and also subject to criticism that he needlessly embarrassed Culpepper when precluding him from team practice.
Where is Culpepper's agent in this story? He's always there with Culpepper . . . . because he is Culpepper. Culpepper is one of the few NFL players who acts as his own agent. The upside to such an arrangement is momentary: Culpepper doesn't have to pay a fee to an agent, which can be as high as 3 percent of his salary.
But would he be better off with an agent? In the abstract, without knowing who that agent might be or his/her talents, it's hard to know how he/she would compare to Culpepper acting as his own agent. But it seems reasonable to conclude that an agent would be especially helpful when one finds himself angry with his team. An agent can work to diffuse the tension, acting as an intermediary or buffer between the player and team, and also develop a public relations strategy to deal with media. Those points seem particularly true considering what social psychology teaches us about how poorly we understand ourselves and the ways in which our minds work (to read further about that topic, please check out The Situationist and the Harvard Law School Project on Law and Mind Sciences)--if there is ever a time when one needs counsel, it's during crisis. While it's possible that Culpepper may have an attorney or other adviser, the
press reports I've read do not indicate that he does. We'll see what happens.
Update (7:20 p.m.): Late this afternoon, Culpepper released a press release that he said he wrote. In it, he reiterated his demand for a release and insisted that he will not practice with the Dolphins. However, he said that he will still attend Dolphins' training camp to workout and lift weights. Also, in a move that would make Rick Karcher proud, Culpepper has asked for and received counsel from the NFLPA on this matter (Rick has written extensively about unions, rather than agents, representing players):
I am now waiting for the Dolphins management to do what is right and fair by granting my release so that I can find a team that will appreciate my talent and love for the game. I do not want to cause any disruption while I wait, so I will only be at the facility in order to run and lift. What happened Friday in the team meeting and on the field was unfair to both me and my teammates. The NFLPA legal department is reviewing the situation and Gene Upshaw has encouraged me to continue to be patient and professional.
Posted By : Michael McCann
Reaching New Audiences
Message posted on : 2007-06-09 - 11:10:00
A nice mention for the Sports Law Blog on NPR's "All Things Considered" yesterday, during Stefan Fatsis' weekly commentary on the business of sports. Fatsis talked about blog posts on Jason Giambi and Red Cards at Safeco Field. The link to the segment is here.
Posted By : Howard Wasserman
Speechless in Seattle
Message posted on : 2007-06-07 - 21:46:00
The Seattle Weekly reports about new policies governing fan cheering at Seattle's Safeco Field. (H/T: Deadspin). According to the story, Safeco Field ushers can issue fans "Red Cards," which warn fans that their behavior has crossed the line and that continued misbehavior will result in removal from the ballpark. Among the infractions for which Red Cards can issue are 1) Foul or abusive language or obscene gestures; 2) Obscene or indecent clothing; and 3) Fighting, taunting, or making threatening remarks or gestures.
The article does not mention the First Amendment. But these fan-conduct policies have been the major focus for my arguments about the constitutional protection for "cheering speech." Except for perhaps "threatening remarks" (assuming they satisfy the fairly narrow definition of "true threats," which they usually will not), everything enumerated on the Red Cards as "unacceptable" is, in the vast majority of cases, constitutionally protected. A person cannot be punished for using foul language (whether orally or in writing or on clothing), for wearing indecent clothing (whatever that means), or for heckling a ballplayer on the field hundreds of feet away. It seems ridiculous to punish fans, who frequently are exhorted to "get loud" in support of the team, for being "too loud." And where is the line between "criticizing" players or umps (which has to be permissible) from "heckling" them? The Mariners essentially are trying to enforce civility norms in a public space--something that the First Amendment does not permit.
The problem, of course, is that the Mariners are acting as a private entity, not subject to the limits of the First Amendment. But Safeco Field is another publicly owned/publicly financed park, built for the exclusive long-term use of the Mariners and containing highly favorable and beneficial lease terms. For many of the reasons discussed as to the Yankees being state actors , I would argue (although no courts has yet agreed with me) that the Mariners (and other teams in similar situations) are state actors in operating Safeco Field and regulating fan expression in the grandstand. With that move made, the fan code of conduct should ripe for challenge by any fans removed from the ballpark for engaging in a range of cheering speech that is prohibited by these codes.
It is worth noting that the Mariners are the ones who started all of this. The article quotes the team's vice president for ballpark operations bragging about the Mariners being among the first teams to develop a fan conduct code. And the Mariners brought the issue of fan expression to the fore in 2002, when the team tried to ban fans wearing "Yankees Suck" t-shirts. Actually, those efforts caused such a backlash that the team rescinded the rule. It is thus surprising (and disappointing) that the Mariners would revise and even expand similarly constitutionally problematic rules.
Of course, the continued existence of these policies means I always have something to write about.
Posted By : Howard Wasserman
Giambi to Meet with George Mitchell
Message posted on : 2007-06-07 - 20:59:00
Good comments from Michael Dorf about Major League Baseball's request/command/demand that Jason Giambi meet with George Mitchell to discuss Giambi's past steroid use. Mike focuses on two concerns: 1) whether Giambi ever admitted to using steroids after the point that MLB outlawed them and 2) whether Giambi is placing himself in danger of criminal prosecution by talking to Mitchell (implicitly, whether Giambi should or might assert his Fifth Amendment privilege).
More troubling, MLB says "discipline will be determined after Giambi has completed activities" with the Mitchell investigators. The implication seems to be that Giambi's punishment will decrease as his cooperation increases--in other words, the more willing he is Giambi to admit his past misdeeds and to identify other past steroid users. Alternatively, if Giambi were to plead the Fifth, one could imaging MLB ratcheting up the discipline because, by protecting himself from possible prosecution, Giambi has not been "cooperative."
Posted By : Howard Wasserman
Were Orlando Magic Season Ticket Holders Deceived by Billy Donovan's Hiring?
Message posted on : 2007-06-06 - 21:39:00
Darren Rovell has an excellent post on his CNBC Sports Business Blog regarding whether Orlando Magic fans who purchased season tickets while Billy Donovan was a willing head coach have a legal right to demand a refund from the Magic (Howard blogged about Donovan's situation earlier this week).
Rovell interviews Duke law professor Paul Haagen, who I blogged about last September in regards to the Faculty Associates Plan at Duke University, for his story:
Assuming the 200 fans that bought season tickets in the 24 hours surrounding Donovan's hiring bought the average seats -- $40 per game for $1,800 a season -- that would mean that the Magic would have to refund $360,000. I called the team this morning and asked them if they were refunding tickets. A ticket representative told me that nothing had been determined yet. Duke law school professor Paul Haagen told me earlier this week, he thought the team would have a case if they didn't give the fans their money back. “I suspect that they intend to hold those ticket holders into their contracts and they're not intending to release them,� Haagen told me. “They didn't in fact guarantee that Billy Donovan would be the coach when they announced that he would be the coach.�
Now that's interesting. Haagen is basically saying that there wasn't any legal language that tied Donovan to season ticket contract. I'm not a lawyer, but I think this is good enough.
Have fans ever before demanded a refund because they were upset about a coach quitting so quickly? Neither Rovell nor I are aware of that happening. But I do recall the one day when Bill Belichick was, in his words, "HC of the NYJ." However I don't recall any Jets fans claiming that they bought season tickets because Belichick was, at least for several hours, going to take over for Bill Parcells as head coach. Rovell does cite a Canadian case where a fan of the Ottawa Senators unsuccessfully argued that he would not have bought season tickets for the 1999-2000 season had he known that Alexi Yashin would not be part of the team (Yashin held out for the entire year). That case was dismissed because it was impossible to prove that the fan bought the seats because of Yashin.
Along those lines, would any Magic fan spend thousands of dollars on Magic seats merely because of Billy Donovan's hiring? I suppose it's possible, as they may pay that money to see a star player even if his team stinks. But I suspect fans bought those seats because they were excited
about Donovan, a good possibly great coach, coaching promising young players like Dwight Howard and Jameer Nelson on a team with a ton of salary cap space to spend on free agents. In other words, they were probably buying into the situation that Donovan was a part of; whether he was an essential part seems hard to establish. That is particularly true in a "players league" like the NBA, where coaching does not appear as meaningful to a team's win/loss record as it does in other leagues, most notably in the NFL, although that point is debatable.
There may be several other possible reasons against Magic fans enjoying a legal right to a refund. How about when a team markets a player to prospective season ticket holders and then trades him? Say the Lakers trade Kobe Bryant later this summer--will fans who purchased season tickets thinking that Kobe would be part of the 2007-08 Lakers team be able to demand a refund? The sensible answer would seem to be no. As Paul Haagen notes, teams can't guarantee future rosters or even coaching and management staffs. Change and turnover are the nature of modern sports teams.
Posted By : Michael McCann
An Ironic Twist on the Allison Stokke Controversy
Message posted on : 2007-06-05 - 12:46:00
About a week ago, a controversy erupted around Allison Stokke, an 18-year-old high school high school senior and one the top female pole vaulters in the country, who happens to be a very attractive young woman. In early May, the blog With Leather posted photos and commented on Allison being an attractive young woman and an outstanding athlete (in that order). He initially removed the photos in response to requests and/or demands from the Stokke family.
But by then, the photos (and the story) were out there and Allison was being bombarded with much unwanted attention: including interview requests, phone calls, staring strangers, etc. The family fought back by sitting for an article in the Washington Post, in which they complained about being "steamrolled" by the wave of attention. And the headline, "Teen Tests Internet's Lewd Track Record," captures the family's narrative: evil internets sports blogs opening their daughter's life up to the world. Of course, the idea of objecting to the wave of publicity surrounding Allison by talking about it in the # 2 paper in the country (and including photographs of Allison with the story) struck many as a questionable strategy. And With Leather responded by insisting that what makes Allison of interest is the same thing that makes Maria Sharapova of interest: She is attractive and she also is very good at what she does, so this is not mere objectification of a woman (draw your own conclusion about that).
The Post story included this statement:
Her father, Allan Stokke, comes home from his job as a lawyer and searches the Internet. He reads message boards and tries to pick out potential stalkers. "We're keeping a watchful eye," Allan Stokke said. "We have to be smart and deal with it the best we can. It's not something that you can just make go away."
Now here is where irony can be pretty ironic, from Ann Friedman at Feministing and Ann Bartow of PrawfsBlawg. Allan Stokke is a criminal defense attorney who has defended men accused of sex crimes specifically by attacking (as he often must) the scope of legal protection that should be afforded the female victim. According to various reports, in one case, Stokke defended one of several teen-agers accused of gang-raping an unconscious 16-year-old girl, in part by arguing that she could not feel physical pain during the attack because she was unconscious. In another case, he successfully defended an Irvine, California police officer who masturbated on a woman during a traffic stop, in part by arguing that the woman, a nude dancer and an "overtly sexual person," "got what she wanted." (The City of Irvine apparently had a different view of the case and settled the woman's civil action for $ 400,000, a substantial amount of money for civil rights actions not involving bodily injury).
My focus here is the irony. Allan Stokke has explicitly pushed an understanding of how the law should treat women (or, at least, certain women) in certain situations. But that view does not apply when the
woman in question is his daughter. And he is pushing this different view as to his daughter with respect to conduct (posting photographs and comments without her consent) that is almost certainly constitutionally protected and, in any event, is an order-of-magnitude less severe than the conduct he has defended in the courtroom. I assume, for example, he would not accept the argument that his daughter "got what she wanted" by being an attractive and successful female athlete who should be in the public spotlight. Nor would he accept that his daughter suffered no harm because she did not know who was looking at photos of her on the internet.
I am not suggesting that Allan Stokke should not have made the legal arguments he did; he must use all ethical and appropriate means to zealously defend his clients (although I am not sure how the "overtly sexual person" argument got through under California's rape shield rule). But I am suggesting that such arguments instantiate views in law and society that have broad effects. And those effects often come home to roost.
I am (as those on my mass e-mail list and those who walk past my office well know) the father of a 17-month-old daughter. And I hope my daughter grows up to be a smart, attractive, athletically gifted young woman (much depends on whether she is fortunate enough to take after her mother). I hope I behave towards all the woman I encounter in life (students, colleagues, friends) the way I hope my daughter will be treated throughout her life. And I recognize that the way I behave towards those woman now goes a long way to establishing how law and society will treat my daughter 20 years from now.
(PS: The photograph at right appeared with the Post story and thus, presumably, is one to which the Stokke family does not object).
Posted By : Howard Wasserman
New Developments in Michael Vick's Pit Bull Fighting Saga
Message posted on : 2007-06-05 - 12:23:00
We've blogged a couple of times about Michael Vick possibly running afoul of the law due to the existence of an illegal pit bull fighting at a home he owns in Smithfield, Virginia (see "The Legal Process and Michael Vick" and "Michael Vick, Pit Bull Fighting, and the NFL's New Personal Conduct Policy"). There have been a couple of developments over the last few days:
1) Steve Wyche of the Atlanta Journal-Constitution reports today that the home was burglarized sometime between May 7 and May 18, with three plasma TVs and a leather sofa valued at $17,550 stolen. For some reason, the home's alarm was not working at the time. The county prosecutor, Gerald Poindexter, does not believe that the burglary had anything to do with the investigation. Along those lines, while someone who has seen one too many Sopranos episodes might wonder if the burglary was really an inside job to get evidence out of the hom
e under the guise of a break-in, there is no evidence for that much more engaging, if completely quixotic, narrative.
2) Don Walker over on his Business of Sports Blog reports that Vick's association with dog fighting has already hurt his marketing power: discount airline AirTran, which is in a lengthy battle to take over Midwest Airlines, has dropped its relationship with him by not renewing its endorsement contract. It's not clear how much Vick earned from that deal, but he did get free airline tickets. Before the dog fighting story emerged, AirTran already had reason to question the value of its relationship with Vick, for as David Hirshman reports in the Atlanta Journal-Constitution:
Vick was in line to board an AirTran flight in Miami in January when TSA agents found he had discarded a water bottle that contained a hidden compartment. Police said they smelled marijuana and found a "dark particulant" in the 20-ounce bottle. No charges were filed and Vick later said he often had jewelry stored in the hidden compartment.
The good news for Vick? Poindexter insists that no evidence has been presented that would lead him to charge Vick with any crime.
Posted By : Michael McCann
Insightful Commentary on Billy Donovan's flip-flop
Message posted on : 2007-06-05 - 07:11:00
From the St. Petersburg Times here and here, including comments from some of your Sports Law Blog contributors.
Posted By : Howard Wasserman
New sports law scholarship
Message posted on : 2007-06-04 - 12:29:00
New this week:William B. Gould, Globalization in collective bargaining, baseball, and Matsuzaka: labor and antitrust law on the diamond, 28 COMPARATIVE LABOR LAW & POLICY JOURNAL 283 (2007)
Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes, 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)
Gary P. Quiming, Comment, Playing by the rules of intellectual property: fantasy baseball's fight to use Major League Baseball players' names and statistics, 29 UNIVERSITY OF HAWAI`I LAW REVIEW 301 (2006)
Posted By : Geoffrey Rapp
David's Revenge? Teams Suspect Stern Rigged NBA Lottery to Punish The Tankers
Message posted on : 2007-06-03 - 12:13:00
Ian Thomsen of Sports Illustrated reports on the most recent meeting of the NBA competition committee--a meeting held in Orlando last Tuesday and one that Thomsen calls "the most important competition committee meeting in years." The four-hour long meeting was chaired by Commissioner David Stern and attended by representatives from 29 of the 30 teams. Apparently things got testy when the topic turned to tanking, as Thomsen writes that there are "suspicions among some league executives and coaches that Stern rigged the results of the lottery." According to these suspicions, Stern somehow manipulated the ping-pong balls so as to punish the three teams (Grizzlies, Celtics, and Bucks) that were alleged to have purposefully lost games:
According to people who were there, the big issues were the alleged tanking of regular-season games, the mess created by last week's lottery and the rule prohibiting players from leaving the bench during on-court altercations that resulted in the suspensions of the Suns' Stoudemire and Boris Diaw during the West semifinals.
Stern admitted the league has created a perception that the worst teams have been losing on purpose over the second half of the season in hope of improving their position in the lottery. He said the fans don't like it, and he added that he was open to suggestion on how to redress the perception.
There are suspicions among some league executives and coaches that Stern rigs the results of the lottery -- in this case to punish the three worst teams (Memphis, Boston and Milwaukee, who came out of the lottery Nos. 4, 5 and 6 in the draft) for contributing to the perception of late-season tanking. To deal with the conspiracy theories, the league spelled out during the committee meeting how the lottery machine works and how it would be practically impossible to fix the outcome. (I've been in the closed room during the lottery, and the NBA mechanism is a lot like the Powerball or other lottery machines that you see on television.)
Amid the discussion of tanking spoke up former Memphis coach Tony Barone, representing the Grizzlies in place of team president Jerry West (whose absence was seen by some as a statement of protest), to make an impassioned defense of his team's play. He was adamant that the Grizzlies hadn't been tanking games and he responded forcefully and sincerely to the insinuation.
As to the fact that the three neediest teams were shut out of the top three picks, Stern again said that he was open to suggestion for a better system.
As often as I criticize David Stern, I am going to defend him here. I feel confident saying that the lottery was not rigged and there was no conspiracy. Stern may be powerful, but short of telekinetic powers, I strongly doubt that he could or would have rigged the lottery, particularly given that an independent lottery firm--albeit one hired by the NBA--actually conducts it. The results were certainly unfortunate for the three teams with the three worst records, but that is the nature of a lottery where no team--including the team with the worst record--has a likely chance of landing either of the first two
picks.
As to whether teams intentionally tanked games, I guess it depends on how one defines
"intent." I'll consider the Celtics, since I follow them more closely than I do any other NBA team.
1) Did Coach Doc Rivers set out to lose games? Probably not, as I do not think his conscious object was to see his team lose games, particularly given pride and a weakened hold on his job. But did he experiment with lineups in ways that he would not have had his team been competing for a playoff spot? Probably, perhaps because he wanted to evaluate players for next season or because he was trying to catch lightening in a bottle, and by doing so, he likely knew there was a substantial risk that his team would lose more games.
2) Would Paul Pierce have played through elbow and foot injuries had his team been in playoff contention instead of being shut down with a few weeks left in the season? Probably, especially given his reputation for playing hurt. But was he really 100% and covertly kept out by GM Danny Ainge so that the team would lose more often? Probably not.
3) Could Al Jefferson have played through a minor knee injury in April rather than sit out a week? Probably. But was he "kept out" to ensure additional loses? Probably not.
I guess I would call it "passive tanking" which might reflect the "reckless" mens rea in criminal law: being aware that certain behavior poses a substantial risk of causing harm, but having other, possibly acceptable, intentions for the behavior. That may not comprise laudable conduct, but it's not as egregious as is generally implied by the word "tanking."
For related coverage on Sports Law Blog and The Situationist, check out:Update 6/4/07: ESPN's Henry Abbott analyzes how the rigging could occur and explores ways that Commissioner Stern and the NBA could diminish suspicions, including:
Redesign the lottery so that the real drawing happens live on international TV. Seeing grim men in suits arrive in the TV studio with the envelopes all ordered by some secretive behind-the-scenes process does not help perceptions.
Posted By : Michael McCann
Would they treat John Roberts this way?
Message posted on : 2007-06-02 - 20:23:00
The next time anyone compares judges to baseball umpires, show them this clip. (H/T: The Worldwide Leader).
Funny to watch. But what would become of the attorney who reacted this way to a judge's evidentiary ruling?
Posted By : Howard Wasserman
Arizona to Waive Sales Tax to Attract 2009 NBA All-Star Game?
Message posted on : 2007-06-01 - 14:25:00
Later this summer, NBA Commissioner David Stern will announce which city will succeed in its bid to land the 2009 NBA All-Star Game. The game has come under controversy of late, with this year's game in Las Vegas drawing rebuke for attracting, in Bill Simmons' words, "so many gangbangers and troublemakers" (an observation vehemently challenged by Jason Whitlock when he spoke at Harvard Law School in April). Next year's game will be played in New Orleans, a city still recovering from Hurricane Katrina and one that some commentators and players are said to be uncomfortable with the All-Star festivities being held.
But the All-Star game is still a major attraction, particularly because it is a weekend long affair that generates significant revenue and attention for the host city and its businesses. Just consider that for all of the problems in Las Vegas, All-Star weekend attracted over 85,000 visitors and created nearly $91 million in local economic impact. That impact in part derives from the type of person who is able to attend the game: someone who can afford to pay between $1,000 and $6,000 for a game ticket.
And the city of Phoenix wants its turn at those benefits in 2009--so much so that some state lawmakers are seeking to pass a waiver of the state sales tax charged on tickets for the game and its associated attractions (Arizona has a 5.6% sales tax, with no exception for food or prescription drugs). Matthew Benson writes about this in today's Arizona Republic. The waiver, which is supported by Phoenix Mayor Phil Gordon, is said to be worth between $300,000 to $400,000 to the NBA and its sponsors who buy the tickets. Some believe that the NBA won't select Phoenix without the waiver, particularly because the city just held the game in 1995 and the NBA likes to "spread the wealth" when it comes to All-Star city selections.
There are at least two core arguments against the proposal, however.
1) A State Sales Taxes is Not a Comparative Disadvantage: 45 out of the 50 states have a sales tax of some sort, and the only states without one are Alaska, Delaware, Montana, New Hampshire, and Oregon. Although I grew up a mere 15 minutes from the New Hampshire border, I just don't see Manchester or Salem or Nashua landing the game, nor do I see the NBA turning to Anchorage, Wilmington, Billings, or Helena. Sure, Portland Oregon would be viable, but wasn't landing the first overall pick good enough news for them? (in fairness, Paul Gerald of the Willamette Week Online wrote a good piece today entitled "Ill-Starred: Why Portland Never Gets an All-Star Game"--Portland has never hosted the game. But they will be hosting Greg 
Oden for the next 15 years, so I can't feel too sorry for them).
2) Waiving the Sales Tax for an NBA All-Star game Benefits the Rich: Ken Cheuvront, an Arizona state senator, draws parallels between a All-Star Game sales-tax waiver and the big-dollar incentives offered by municipalities hoping to lure retail developers: "It seems absolutely ridiculous. I don't support it. I don't think it's good public policy. The tickets sell out anyway." And as Benson writes in his article, the NBA controls most of the tickets, and they tend to go those with a lot of money--those who presumably least need the sales tax break.
What are your views? Would waiving the sales tax for the NBA All-Star game--but not for groceries or prescription drugs--be a sell-out to the rich and privileged or would it be good business policy to attract an event that will generate revenue and attention and that might not otherwise occur?
Posted By : Michael McCann
Do Baseball Statistics Measure Fairness?
Message posted on : 2007-06-01 - 00:09:00
Over on PrawfsBlawg, Matt Bodie has a thoughtful post on the oddity of Major League Baseball teams and many of their fans being so openly obsessed with nuanced, sometimes esoteric, statistical measurements of players while being tolerant or at least less vocal towards glaring inequities between teams (thanks to Octagon associate general counsel Ryan Rodenberg for the link). Here is an excerpt from Bodie's post:
Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it. What league is this? Major League Baseball.* * *
Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.
* * *
So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.
To read the rest of the post, click here.
Posted By : Michael McCann
MLB Still Fighting Slingbox
Message posted on : 2007-05-31 - 14:50:00
Last June, I discussed a dispute between MLB Advanced Media (MLBAM) and Sling Media Inc., manufacturer of the popular Slingbox device. Slingbox lets consumers rebroadcast the cable and satellite signals they receive on their home television to any computer, cell phone or second television located far away. Last year, MLBAM approached Sling Media about paying licensing fees for the distribution of televised baseball games and the company rebuffed. Apparently, that issue is not dead. Eriq Gardner of The Hollywood Reporter, Esq. addressed the status of that dispute in an excellent article about sports leagues' ability and efforts to legally control distribution of content in a high-tech era that entails the use of such devices as the internet, Slingbox and YouTube ("Sports Leagues' Slingbox Opposition Highlights New Game of Content Control").
Posted By : Rick Karcher
Proposed UFL and Antitrust
Message posted on : 2007-05-30 - 11:23:00
From my FIU colleague and occasional guest blogger Andre Smith (who is the real sports law guru on our faculty):
Dallas Mavericks owner Mark Cuban is involved in creating another challenger to the NFL, dubbed for now the UFL. I'm not sure what the “U� stands for, but I am guessing United, with Universal being a slighter possibility.
According to NBCsports.com, “Each owner will put up $30 million, giving him an initial half-interest in the team; the league will own the other half. Eventually each team is going to sell shares to the public... Then the owner, the league and the fans will each own a third of every franchise.�
This ownership structure is novel in professional sports and begs a question relating to anti-trust: Which section of the Sherman Anti-Trust Act applies to a league constituted this way?
The major professional sports leagues and organizations in the United States (NFL, MLB, NBA, NHL, NASCAR) consist of individual team owners who establish league rules through a non-profit entity, i.e., the League Office. These teams can be sued under section 1 of the Sherman Act for combining or conspiring to restrain trade.
Teams in Major League Soccer, on the other hand, are owned by the league. They are managed by franchise operators, rather than team owners. Being a single entity, then, there can be no “combination� or “conspiracy� to restrain trade. Still, MLS can be sued under section 2 of the Sherman Act, which prohibits attempts to monopolize.
So the question becomes, can the UFL be sued under section 1, if the league owns 51% of all the franchises, 50% of all of them, 33% of them, or 51% of more than half of the teams and minority stakes in the rest? Often in federal taxation, a subsidiary is owned and controlled by its parent when the parent owns at least 80%; should there be a similar supermajority standard?
Posted By : Howard Wasserman
NFLPA Sends Stern Message to NFL Commish
Message posted on : 2007-05-30 - 08:05:00
In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.
Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:
The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''
At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.
Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole
arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).
It will be interesting to see how Goodell reacts going forward. Any predictions?
Posted By : Rick Karcher
Hancock v. Mike Shannon's Steaks and Seafood
Message posted on : 2007-05-29 - 12:23:00
The title is the caption to a lawsuit filed last week in Missouri state court by Dean Hancock, the father of St. Louis Cardinals reliever Josh Hancock and the executor of Josh's estate. Josh was killed in a car accident April 29 when the rented SUV he was driving slammed into the back of a stopped tow truck in the left lane of a multi-lane highway in St. Louis. Hancock had left one bar (Mike Shannon's) and was on his way to a second bar to meet his girlfriend. Reports indicate Hancock had a blood-alcohol level of 0.157, was traveling above the posted speed limit, and talking to his girlfriend on his cell phone when the crash occurred. Stories on the accident and the lawsuit here, here, and here. A copy of the complaint can be downloaded about halfway down in this story.
There are three basic claims in the lawsuit. The first, against Mike Shannon's restaurant/bar and Patricia Shannon Van Matre, the manager of the bar, seeks damages under Missouri's dram shop law. The claim is that Hancock, a regular at the bar, spent approximately 3 1/2 hours drinking there on the night in question and became visibly intoxicated, but the restaurant continued to serve him drinks anyway. The second claim alleges negligence against the tow truck company and the tow-truck operator, claiming that the driver was negligent in stopping in the left lane of the highway and keeping the truck (and stalled car) there for a lengthy period of time, without providing adequate warning to motorists, such as flashing lights or flares. The third claim alleges negligence of against Justin Tolar, the driver of the stalled car that the tow truck had stopped to help. Tolar's car had struck the median, spun out, and stalled in the left lane of the highway.
The dram shop claim is the focal point of the suit, the one that has received the most attention, the most unique claim, and likely the most difficult to prove. Missouri's law, amended in 2002, permits liability when it is "proven by clear and convincing evidence that the seller . . . knowingly served intoxicating liquor to a visibly intoxicated person." Mo. Rev. Stat. § 537.053(2). "Visibly intoxicated" means "inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction." § 537.053(3). A high BAC is evidence of voluntarily intoxication, but cannot alone establish the fact. Moreover, the law expressly prohibits recovery for injuries resulting from one's own voluntary intoxication. § 537.053(4). This presumably means the law permits third-party liability against a bar (A is injured by B's drunk driving, sues the bar at which B got drunk), but not first-party liability (A is injured as a result of his own drunk driving, sues the bar at which he voluntarily drank and got drunk). A good discussion of the history of dram-shop liability and of Missouri's new law is here.
The fact that the law seems to disallow first-party dram-shop liability probably defeats this claim at the start. The prior version of Missouri's dram shop law was held to allow first-party claims, although that statute required only that the "intoxicating liquor is the proximate cause of the personal injury or death sustained by such person." The explicit prohibition on claims involving voluntary intoxication should command a different result in the typical first-party claim such as this--someone willingly goes to a bar, drinks, gets drunk, and is injured.
The complaint tries to get around the voluntary
intoxication language by alleging that Hancock's intoxication was involuntary, thus not within the statutory exception. But I am not sure how this can be the case. In general, one can be said to be involuntarily intoxicated only when a person did not knowingly consume the intoxicating substance (i.e., someone slipped him a Mickey). No one suggests that is what happened here. My speculation is that the plaintiff rests on some notion that the bartenders at Shannon's continued to give Hancock drinks beyond the point that he was (or could be) aware that he was drinking and getting drunker; so even if he went to the bar voluntarily and even if he initially voluntarily consumed alcohol, at some point he was drinking and getting drunk not of his own volition. I doubt this works as a matter of law. Moreover, even if Hancock clears that hurdle, he must put together a lot of evidence (more than the ordinary civil standard of more-likely-than-not) that Josh exhibited signs, visible and obvious to Shannon's bartenders and staff, of physical dysfunction caused by alcohol consumption. The spiked BAC will not be enough.
The negligence claims against the tow-truck company and driver and against the stalled motorist sound like something from a torts exam. Still, neither claim seems beyond the pale. If the motorist was negligent in hitting the median and stalling his car out, then he may (and should) be responsible for resulting injuries to any other driver on the road. Imagine that Tolar, driving negligently, had bounced off the median and struck Hancock's car as it came immediately behind him; no one would question that Tolar might be liable. The only difference here is that Hancock did not come upon Tolar's car until 20 minutes later. But the principle--Tolar drove negligently and contributed to the injuries to another driver--remains the same. Similarly, the tow truck driver/company were obligated to conduct themselves in a careful manner--specifically by either moving the car out of the traffic lane or providing warnings to motorists.
What sets this situation apart--and what has some commentators screaming about frivolous lawsuits, the out-of-control tort system, and loss of personal responsibility (you have to page down a bit)--is everything that Josh did that contributed to the accident: He was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning. I especially liked Overlawyered's suggestions for other people Hancock should have sued, including the cell-phone manufacturer and the girlfriend.
But the tort system long ago moved to a regime of comparative negligence--a plaintiff's own negligence may reduce the amount he can recover from responsible defendants, but it does not necessarily eliminate all recovery (unless the plaintiff is more responsible for the accident than the defendants). This contrasts with the old Common Law rule of contributory negligence, where any small amount of plaintiff negligence (just 1 %) precluded all recovery. So even if Hancock contributed to the accident by driving under the influence, so, too, perhaps, did Tolar's and the truck driver's behavior. The question now becomes how much each is responsible--and that is a question for the jury.
Moreover, comparative negligence is an affirmative defense--it is on the defendant(s) to introduce the issue, plead it, and to prove it. An affirmative defense is the defendant saying, in essence, "yes, what the defendant says happened did happen, but here is something that limits or eliminates my liability"(here, the plaintiff's own negligence). Right now, all we have is Hancock's Complaint--which (as I tell my civ pro students ad nauseum) is simply the
plaintiff's best-foot-forward version of what happened that, for the moment, we take as true. We need to wait for more facts and evidence to come out. News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers. We are an "adversary" judicial system. Hancock has put forward his initial version of events; it now is (and should be) on the defendants to put forward their best legal and factual versions. Then we ultimately can figure out what happened and who was responsible.
My guess is that Hancock loses. The dram shop claim does not work as a matter of law, given the language of the amended statute precluding claims based on one's own voluntary intoxication. The negligence claims likely fail, since Hancock's own negligence seems to outweigh that of the motorist and the tow truck (although that one probably goes to a jury). But I disagree that it is so obvious, ab initio, that all of these claims are so laughably weak. Let the system play itself out.
Updates: Wednesday, May 30:
Some additions, explanations, and elaborations in response to e-mails and comments:
First and most important for the negligence claims: Missouri follows a "pure" comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable, the plaintiff still could recover 1 % of the harm he suffered. This contrasts with a "modified" comparative negligence system, in which the plaintiff is precluded from recovery (and his claim defeated) if his negligence reaches some point (either 50 % or 51 %, depending on the jurisdiction). In practical terms, that means Hancock's negligence claims simply will not simply be defeated (as I initially stated) because of Hancock's arguably greater responsibility. It also means the claims likely go to trial for jury determination. We must determine the facts as to what Tolar and the tow-truck driver did or did not do, because even a small amount of negligence would require one or both to pay a small amount of damages to the plaintiff (an amount reduced by Josh's own negligence). Unless all the evidence shows that, as a matter of law, neither Tolar nor the truck driver was negligent, a jury must measure out what portion of responsibility either bears.
Second, Professor Sheila Scheuerman, co-editor of Torts Prof Blog (who was kind enough to link to this post), had a good explanation for the visceral negative reaction many people have to this lawsuit: The problem is that the reductio summary of the suit--"father of dead drunk driver sues restaurant and others involved in crash"--runs counter to intuitive ideas about "justice." I think this is correct as an explanation for much of the public (and blogosphere) response. And it illustrates why we try so hard to get our students to step back from that initial, intuitive, empassioned reaction and to think through the entire issue with care and reason.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-05-29 - 10:47:00
Recently published scholarship includes:
Suzanne E. Eckes, Title IX and high school opportunities: issues of equity on and in the Court, 21 WISCONSIN WOMEN'S LAW JOURNAL 175 (2006)
Greg Egan, Student article, Sustained yield: how the dynamics of subsistence and sport hunting have affected enforcement and disposition of game violations and wounded Alaskan culture, 28 HAMLINE JOURNAL OF PUBLIC LAW & POLICY 609 (2007)
Haley K. Olsen-Acre, Student article, The use of drug testing to police sex and gender in the Olympic Games, 13 MICHIGAN JOURNAL OF GENDER & LAW 207 (2007)
Josephine R. Potuto, Academic misconduct, athletics academic support services, and the NCAA, 95 KENTUCKY LAW JOURNAL 447 (2006-2007)
Posted By : Geoffrey Rapp
A Good Lacrosse Weekend
Message posted on : 2007-05-29 - 07:25:00
A good weekend in our household for, of all sports, lacrosse--a sport that looks fun and interesting but that I do not quite understand (beyond the obvious objective).
On Sunday, Northwestern, my beloved alma mater, won its third straight NCAA Women's Lacrosse Championship. I now am on the hunt for a purple "Hat Trick" t-shirt to fit my 17-month-old daughter (whose first legal phrase will be "Title IX").
On Monday, Johns Hopkins, which was kind enough to pay for my wife's alma mater (my father-in-law is a faculty member at Hopkins), won the Men's Lacrosse Championship. Of course, Hopkins will most be remembered for depriving Duke of the storybook finish to its return from the depths of a canceled season in 2006.
Posted By : Howard Wasserman
The Attendance Value of The First Overall Pick in the NBA Draft
Message posted on : 2007-05-28 - 06:10:00
Over on his CNBC blog, Sports Biz, Darren Rovell has very good news for the Portland Trailblazers: over the last 11 years, the team that obtained the first overall pick in the NBA Draft enjoyed, on average, an 11.5% increase in attendance the following season. If that percentage holds true for the Trailblazers next season, the team should receive an additional $6.3 million in attendance revenue (Rovell's calculation takes into consideration incidental revenue, such as parking and concessions).
Rovell acknowledges the limitations of his methodology. The Washington Wizards, for instance, saw their attendance increase by 24% after drafting Kwame Brown with the first overall pick 2001 (they also picked up some guy named Michael Jordan--and Rovell dropped that year when calculating the 11.5% average). Moreover, the 11.5% figure is skewed favorably by three first overall picks--Lebron James, Tim Duncan, and Allen Iverson--while some of the other first overall picks--Kenyon Martin, Elton Brand, and Michael Olowokandi--didn't seem to have much of an impact on either wins or attendance.
But considering the hype and expected performance of Greg Oden, in addition to the Trailblazers' already impressive talent, it would seem that Paul Allen's franchise is primed for a successful and lucrative season ahead (and one that will only add to Allen's net worth of $18 billion).
Posted By : Michael McCann
Vindication or Unfairness in Last Night's NBA Draft Lottery?
Message posted on : 2007-05-23 - 12:07:00
Last night's NBA lottery was an abject disaster for the Memphis Grizzlies and Boston Celtics. The two teams with the worst NBA records last season had the best odds of landing one of the top two picks, which will be used on Greg Oden and Kevin Durant. But the "best odds" aren't the same thing as certainty, as the Grizzlies and Celtics only had a 48% chance and 37% chance, respectively, of landing one of those two picks.
And as you probably know, the Grizzlies won't be picking one and the Celtics won't be picking two. They will be picking fourth and fifth, respectively. And thus they will lose out on the two players who project as "franchise players," and instead draft among the left-overs. The Portland Trailblazers, which only had a 5% of landing the first pick, got really lucky (read all about it on True Hoop), as did the Seattle Supersonics, which will be picking second.
There are at least ways to view what happened last night.
One way is to say that there is a certain degree of justice in the lottery's outcome. The Grizzlies, Celtics, and Milwaukee Bucks were all accused of tanking games in their quest to get the most number of ping-pong balls. And yet they had the worst results last night, falling down in the draft as far as they possibly could under the lottery rules. Sure, there is probably 0% chance that Commissioner Stern or anyone at the NBA had anything to do with that, as an independent lottery firm performs the actual drawing of the balls. But those who were upset with the tanking may feel like there was some sort of vindication last night, even if the vindication resulted entirely from chance.
But Jerry West, President of the Memphis Grizzlies, has a different take on what happened last night. He sees profound injustice rather than coincidental vindication:
It's like pitching pennies. It's grossly unfair to the team, but I've said it before, I don't think the lottery is fair. I never liked it.
It's not sour grapes. I just think it's a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season. There have been a lot of picks in the lottery that have (failed). There are two in the lottery this year that are not going to fail. There are two superstars in the draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.
West has a point. If the purpose of the NBA Draft is to redistribute talent in the most equitable manner, shouldn't the worst team get the best pick? Major League Baseball and the National Football League take that very approach, with the idea that the league product is enhanced when, at some point, every team has a genuine opportunity to become great through obtaining the best amateur talent. That idea hasn't worked in baseball because of the absence of a salary cap and because it's extremely hard to project the professional potential of amateur baseball players, but it seems to have worked pretty well in the NFL.
On the other hand, the NBA is likely worried that eliminating the lottery would give teams an even greater motivation to tank. But is that fear worth keeping teams like the Grizzlies and Celtics down for many years to come? Is the league product really
better off with a weighted lottery, when Greg Oden and Kevin Durant don't go to the franchises most in need of their help? Should the sheer fortuity of how ping-pong balls come out of a machine really determine the fate of franchises for the next decade?
Posted By : Michael McCann
Tonight's NBA Draft Lottery: Will The Tanking Matter?
Message posted on : 2007-05-22 - 00:10:00
At 8:30 p.m. tonight, (Eastern Standard Time, ESPN), the NBA will conduct its draft lottery. It will determine the draft order of the 14 NBA teams that did not make this season's playoffs, as those teams will be assigned a pick between 1 and 14 in the 2007 NBA Draft, which will be held on June 28. We have examined this topic in great detail over the last couple of months, particularly in relation to NBA teams tanking, or purposefully losing games for more lottery balls.
However, as the Boston Globe photo from 1997 on the left reveals, sometimes tanking doesn't work out as planned: the photo is of a Boston Celtics fan, taken in April 1997, when the team purposefully lost games (as admitted by its former GM and head coach, M.L. Carr) in order to secure the worst record and thus the best chance to obtain the presumptive first pick, Tim Duncan. (thanks to Celtics Blog, the most popular blog devoted to any NBA team, and C's fan Daniel Babbit, for
the photo). Just for good measure, check out The Sporting News cover from earlier this month on the right.
Here are our writings:
Posted By : Michael McCann
Yankee Stadium, God Bless America, and the First Amendment
Message posted on : 2007-05-18 - 23:52:00
Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during God Bless America during the Seventh Inning Stretch. I first discussed this issue here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments) here and here.
In the interest of shameless self-promotion: I have written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):
Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,� counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America� or may turn their backs to the flag during the anthem. Fans even may jeer one nation's anthem as it is being played as protest against that nation or its policies.
At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.
There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.
State Action or Action Under Color of Law
Are the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.
The strongest argument for state action is Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating
the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).
The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact, Burton was the basis for a district court holding in Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.
A second argument is based on the more-recent decision in Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with Brentwood may be how long the opinion survives--the Supreme Court this term heard oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.
First Amendment Principles
The next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.
The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.
Two thoughts on this. First, there are many ways to
decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.
This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.
In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.
The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.
This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?
I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.
But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?
Posted By : Howard Wasserman
The Legal Process and Michael Vick
Message posted on : 2007-05-17 - 14:00:00
A few weeks ago, I blogged about Michael Vick's possible involvement in an illegal pit bull fighting ring at a home he owns in Smithfield, Virginia, and how the NFL might react. Over on East Coast Bias, attorney Jason Reddish has a thoughtful post that defends the unwillingness of Surry County (VA) Commonwealth Attorney Gerald Poindexter to charge Vick, despite pressure from the media and from Kathy Strouse, the animal control coordinator for Chesapeake, Virginia, to do so. Here is an excerpt from Jason's piece:
Ms. Strouse, apparently, has learned nothing about the judicial process from the missteps in Durham and other places. Rather than allowing Mr. Poindexter to properly develop the case and serve the interests of the people of Surry County and the Commonwealth of Virginia, she wants a public spectacle and a premature indictment. I applaud Mr. Poindexter for the poise and diligence which he has displayed in this investigation.
There's a reason attorneys handle prosecutions rather than dog catchers. I hope the national media respects Mr. Poindexter's investigation rather than latching on to Ms. Strouse's inflammatory comments.
For the rest of the article, click here.
Posted By : Michael McCann
NBA Rules and Legal Formalism
Message posted on : 2007-05-16 - 11:00:00
A couple of interesting posts and comments from Michael Dorf at DorfOnLaw about the suspensions of the Spurs' Robert Horry and the Suns' Amare Stoudemire and Boris Diaw over the "altercation" in Game 4 of the Phoenix-San Antonio series.
The issue is how the NBA's rules against leaving the bench, and Stu Jackson's decision to suspend Stoudemire and Diaw for doing so (or almost doing so, since neither actually made it to the fray but quickly jumped back off the court), reflects ancient debates about legal formalism; the advantages and disadvantages of relying on hard legal rules as opposed to more flexible legal standards; and the idea of law v. morality (or justness, if you will). There also is some interesting lawyering going on among Suns backers: The argument has been made that the rule against leaving the bench to join an altercation was not triggered in this situation, because what happened on the court (Horry's hip-check of Nash) was not an altercation. It did not carry the day, obviously, but a cute argument.
Worth a read.
Posted By : Howard Wasserman
Quick Programming Note
Message posted on : 2007-05-15 - 17:23:00
I will be a guest on Bo Bounds' radio show tomorrow morning on WSFZ-SuperSport 930 AM from 8:07 to 8:20 a.m. central time. It can be heard live at this link. Bounds recently interviewed Red Sox closer Jonathan Papelbon and Cleveland Indian left fielder David Dellucci, so I will have some big shoes to fill. It should fun and we will discuss various sports law issues. I hope you get the chance to listen.
Posted By : Michael McCann
Recent Sports Law Scholarship
Message posted on : 2007-05-15 - 10:08:00
New sports law scholarship over the past few weeks:Hector Del Cid, Winning at all costs: Can Major League Baseball's new drug policy deter kids from steroids and maintain the integrity of the game?, 14 SPORTS LAWYERS JOURNAL 169 (2007)
Marc J. Dobberstein, Student article, “Give me the ball, Coach�: a scouting report on the liability of high schools and coaches for injuries to high school pitchers' arms, 14 SPORTS LAWYERS JOURNAL 49 (2007)
Kara Fratto, The taxation of professional U.S. athletes in both the United States and Canada, 14 SPORTS LAWYERS JOURNAL 29 (2007)
Jonathan B. Goldberg, Student article. No tying in football? Re-examining the sale of NFL tickets, 14 SPORTS LAWYERS JOURNAL 1 (2007)
Jonathan Gonzalez, Trademark goodwill, brand devaluation, and the neo-political correctness of college athletics: did Marquette's recent identity crisis cost them thousands or even millions of dollars in brand value?, 14 SPORTS LAWYERS JOURNAL 195 (2007)
Allan M. Johnson, Student article, The right of publicity gets left out in CBC Distribution, 14 SPORTS LAWYERS JOURNAL 71 (2007)
David W. Penn, Note, From Bosman to Simutenkov: the application of non-discrimination principles to non-EU nationals in European sports, 30 SUFFOLK TRANSNATIONAL LAW REVIEW 203 (2006)
Jude D. Schmit, Student article, A fresh set of downs? Why recent modifications to the Bowl Championship Series still draw a flag under the Sherman Act, 14 SPORTS LAWYERS JOURNAL 219 (2007)
Yael Lee Aura Shy, Student article, “Like any other girl�: male-to-female transsexuals and professional sports, 14 SPORTS LAWYERS JOURNAL 95 (2007)
Kelley Tiffany, Cheering speech at state university athletic events: how do you regulate bad spectator sportsmanship?, 14 SPORTS LAWYERS JOURNALS 111 (2007)
Frank P. Tiscione, Student article, College athletics and workers' compensation: why the courts get it wrong in denying student-athletes workers' compensation benefits when they get injured, 14 SPORTS LAWYERS JOURNAL 137 (2007)
Posted By : Geoffrey Rapp
Should Fantasy League Operators Pay Licensing Fees?
Message posted on : 2007-05-14 - 17:12:00
Last August, U.S. District Court Judge Mary Ann Medler ruled that players have no right of publicity in their names and playing records when used by commercial fantasy league operators without a license. MLB and the MLBPA have filed an appeal to the Eighth Circuit Court of Appeals and oral argument is now scheduled for June 14th (exactly one month from today). Fantasy league operators, including Yahoo!, ESPN and CBS Sportsline, currently pay the union a license fee between two and three million dollars. According to Sports Business Journal, a license for FoxSports.com was negotiated last summer as part of Fox's new TV deal with baseball, but the online outlet is waiting for the outcome of the case before electing whether to pay the fee. SBJ also reported that the MLBPA has recently sent cease-and-desist letters to a collection of smaller fantasy game operators. Needless to say, the outcome of this lawsuit has huge ramifications on right of publicity tort law, and not just specifically related to the fantasy league industry. On Friday morning, I will be moderating a panel on this topic at the Sports Lawyers Association 33rd Annual Conference that includes Judy Heeter, Director of Business Affairs and Licensing for the MLBPA, and Tonia Ouellette Klausner, counsel to the Fantasy Sports Trade Association.
In my recent law review article, The Use of Players' Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, I critique the district court's ruling and discuss how right of publicity claims can be viewed on a spectrum of commercial advantage. On one end of the spectrum, there are certain uses of identities that do not constitute a violation of the right of publicity because (although the use may generate economic gain to the user) the use has social value that is protected by the First Amendment making the commercial gain aspect secondary; those uses being for news reporting purposes, literary purposes (i.e. book writing, magazine articles) and expression purposes (i.e. art, parody, etc.). On the other end, there are certain uses that nobody would dispute constitute a violation because the primary use is for commercial gain; those uses being for advertisement, endorsement and marketing purposes. There are uses that fall somewhere in between these two ends, and I refer to these as "quasi-commercial" uses -- fantasy leagues, sports trading cards and video games to name just a few.
Fantasy league use, like trading card use, without a license has been held to violate the players' right of publicity. For example, in Uhlaender v. Henricksen, 316 F.Supp. 1277 (D.Minn. 1970), the court held that the defendants, which manufactured and sold without a license fantasy sports league table games that employed the names and performance statistics of major league baseball players identified by team, uniform number, playing position and otherwise, violated the players' right of publicity. The Uhlaender court properly rejected the "public domain" rationale, and also provided the policy rationale for why a right of publicity should be recognized in the context of fantasy league use:
A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other personal characteristics, is the fruit of his labors and is a type of property. Defendants' contention has no merit that by the publication in the news media and because of the ready availability to anyone of the names and statistical information concerning the players, such information is in the public domain and the players thus have waived their rights to relief in this case. Such argument may or may not have some weight against a right of privacy claim, but in an appropriation action such as in the case
at bar the names and statistics are valuable only because of their past public disclosure,
publicity and circulation. A name is commercially valuable as an endorsement of a product or for use for financial gain only because the public recognizes it and attributes good will and feats of skill and accomplishments of one sort or another to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action, for only disclosure and public acceptance does the name of a celebrity have any value at all to make its unauthorized use enjoinable. (emphasis added). Id. at 1282, 1283.
However, last summer Judge Mary Ann Medler was convinced that the players don't have a right of publicity because their names and performance statistics are in the public domain. But saying it's in the public domain only begs the question as to whether there is a violation of the right of publicity, it doesn't answer it. In other words, professional athletes are, by definition, in the public domain by virtue of being professional athletes. That doesn't mean Nike can use Tiger Woods without a license.
Was the Uhlaender case wrongly decided back in 1970? Or, does the fact that fantasy league games are now sold on the internet, as opposed to a tangible board game in a box, somehow change the outcome? If so, why? The only difference is that the internet has turned fantasy leagues into a $2 billion industry and, if anything, made it even more "commercial". Salaries of professional athletes have definitely increased over this 37 year period, but that doesn't provide any legal basis whatsoever, or even a policy rationale, for denying the players' claim.
Fantasy league operators, like trading card and video game manufacturers, sell a consumer product using players' names and statistics. Consumers are purchasing these products solely because they contain the players' names, likenesses and performance statistics. In other words, these products simply do not sell without their use. Shouldn't the players be compensated? If the Eighth Circuit affirms the district court ruling, would it mean that Topps and EA Sports could also produce their products without purchasing a license?
Posted By : Rick Karcher
Valuing Loyalty & Situation: Tim Wakefield and The Reserve Clause
Message posted on : 2007-05-14 - 14:39:00
Red Sox starting pitcher Tim Wakefield is off to a fantastic start this season, his 13th with the Sox. The 40-year-old knuckleballer leads the American League with 1.73 Earned Run Average. Operating on a one-year contract, he would seem well poised to have a great free agent season.
But Tim Wakefield won't become a free agent after the 2007 season--unless the Red Sox let him, that is. See, in April 2005, Wakefield agreed to a one-year, $4 million contract extension that included a perpetual team option for one-year, $4 million. In other words, the Sox can keep Wakefield for as long as they want (assuming he wants to keep playing baseball), and the team can revisit that decision every year, provided they are willing to pay him $4 million for the next year. If the Sox decline to extend his contract, they don't even owe him a buyout. It should be noted that Wakefield's annual salary does contain several incentive clauses: he receives an additional $50,000 for each start between 11 and 20, and $75,000 for each start between 21 and 30; he can conceivably make up to $5.25 million--still a far cry from the annual base salaries for pitchers like Roger Clemens ($28 million), Barry Zito ($18 million), and Andy Pettitte ($16 million).
Wakefield's contract is essentially a throw-back to an era before Curt Flood sued Major League
Baseball in the historic antitrust case Flood v. Kuhn, 401 U.S. 258 (1972). The case arose after then MLB Commissioner Bowie Kuhn rejected Flood's written request that the reserve clause, which was standard in baseball contracts and allowed teams to retain the rights of players after their contracts expired, should not apply to his employment. Here was Flood's famous letter to Kuhn, in which he likened himself to being treated like a piece of property:
- December 24, 1969
- After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.
- It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season.
Unfortunately for Flood, the U.S. Supreme Court ruled 5-3 in favor of Major League Baseball. The Court upheld Major
League Baseball's antitrust exemption (as detailed in Federal Baseball Club v. National League, 259 U.S. 200 (1922)) and, through stare decisis, reasoned that changing the exemption is a matter for legislative, not judicial, resolution. But Flood's loss became other players' gain, as Marvin Miller led the MLBPA to successfully demand from the owners the ability to obtain free agency.
This past March, Rany Jazayerli of Baseball Prospectus argued that Wakefield's contract was the worst contract in baseball. By implication, his analysis suggests that Wakefield's contract may be considered a disservice to other players and perhaps even a repudiation of the legacies of Flood and Miller et al.:
[Wakefield's contract] was signed less than two years ago, on April 19th, 2005, by a veteran pitcher who had already made his millions, and who was a free agent at the time. This pitcher, who was about to complete a three-year deal that paid him a little north of $13 million, agreed to a one-year extension worth 4 million dollars--a one-year deal, and a pay-cut, even though said pitcher had just gone 12-10 with a league-average ERA the year before. At the time he signed the extension, he had started the new season 2-0 with a 1.37 ERA; he would finish 16-12 with a 4.15 ERA ...
Then keep in mind that this pitcher had gone 22-12 the two years before that, with ERAs of 4.09 and 2.81 (the latter was 4th-best in the league). This pitcher was in his 13th major-league season and had never suffered a significant arm injury.
To the best of my knowledge, since the dawn of free agency, no player has signed a comparable contract ... We used to have a term for this type of contract in the annals of baseball history. What was it…oh yeah, we called it the Reserve Clause.
But let's look at the contract from Wakefield's perspective. First consider loyalty (a topic that I examined from a scholarly perspective in my Brooklyn Law Review article "It's Not About the Money"). It can be argued that without the Red Sox, Tim Wakefield's baseball career would have ended in 1995. At that time, he was 28-years-old and coming off a disastrous season for Triple A Buffalo in which he had a 5-15 record, a 5.84 ERA, more walks (98) than strikeouts (83), and 27 home runs given up--worst in Triple A. Sure, he was the National League Rookie of the Year in 1992 for the Pittsburgh Pirates, but that was three years earlier; in the interim, he had devolved into one of the worst pitchers in Triple A, and was seemingly
destined for another profession--especially after the Pirates unceremoniously released him on April 20, 1995.
But former Red Sox general manager Dan Duquette had a different idea. Six days after the Pirates released Wakefield, Duquette signed Wakefield to a minor-league contract and hired Hall of Fame kunckleballer Phil Niekro to work with him.
Wakefield proceeded to pitch extremely well for the Sox' Triple
A team in Pawtucket, and was then promoted to Boston--and hasn't look back since. In that 1995 season, Wakefield finished with a 16-8 record, along with a 2.95 ERA, and he was essential to the Sox winning a division title. He also won the AL's comeback player of the year award and finished third in the A.L. Cy Young Award balloting. Since that extraordinary comeback season, Wakefield has been a mainstay in the Sox rotation, and has even pitched out the bullpen when asked. For a guy who was probably close to leaving baseball at age 28, Wakefield almost certainly feels a deep gratitude to the organization that may have saved his baseball career and extended it at least 12 additional years. That has to count for something.
Wakefield also seems to appreciate the situation of playing for the Sox. The team's longest-serving active member, Wakefield is perhaps also its most popular member and seems to thrive living in Boston. He married a woman from Boston and is very close friends with a number of his teammates, including Mike Timlin, with whom he regularly hunts (see photo of Wakefield with his bow and arrow, with Timlin in the background). Put more bluntly, he's got a great gig playing for the Sox and living in Boston. Perhaps that is why he engaged in the following conversation with his agent, Barry Meister, in 2005:
Wakefield's agent, Barry Meister, told the knuckleballer during this past offseason that, given age and productivity, he might command $6 million from some club at the end of the season."He said, `Is that club the Red Sox?' " Meister said. "I said, `No, might not be.' He said, `If you said the Red Sox, that's one thing.'
"He waved me off and said, `Money is important, but it's kind of down the list for me. My desire is to be in Boston and be a Red Sox. That's just who I am now.' "
But did Wakefield owe a duty to other players to not take a contract with a perpetual team option? We considered players' implied contractual duties to the MLBPA when we examined how the MLBPA pressured Washington Nationals' closer Chad Cordero to turn down a two-year contract offer, and Rick has written extensively about the related topic of using unions to negotiate contracts for players. And we know that three decades ago, many players and union lawyers fought hard against the very type of contract Wakefield signed. Has Wakefield been disloyal to the players' association as a price for being loyal to his employer, and how should we regard that?
Or should we applaud Tim Wakefield for not putting money first and instead putting his loyalty and situation ahead? Who are we--and who is the MLBPA and its members--to question what a player considers "valuable"?
Posted By : Michael McCann
Birthistle on World Cup Officiating
Message posted on : 2007-05-14 - 11:50:00
Professor William Birdthistle of Chicago-Kent College of Law is guest-blogging at The Volokh Conspiracy on his new article, Football Most Foul, in the Green Bag. The article criticizes the officiating in the 2006 World Cup, arguing that it, more than player performance, determined the outcomes of too many games, and explores ways to reduce the power that officials wield.
His first post is here. Check back at the VC over the coming days to read more.
Posted By : Howard Wasserman
Manhattanville College Symposium on Best Practices in Sports Business
Message posted on : 2007-05-12 - 12:42:00
On Saturday, May 19, the Center for Ethics in Sports at Manhattanville College (CESAM) will host its First Annual Symposium on Best Practices in the Sports Business World. Among the speakers is Attorney Marc Edelman, who runs Sports Judge, the fantasy sports dispute resolution service that I blogged about in January.
The Symposium will be open to the public and will be held in Reid Castle on Manhattanville College's campus in Purchase, New York (directions available here). Registration starts at 10:00 a.m., followed by brief introductory remarks. Here are details on the panels:
10:30 a.m. - 12:00 p.m. "Staying on the High Road in Negotiations"
What is the art of the fair deal? Can you always maintain full integrity in all negotiations settings? Our panel will delve into these issues and more. Scenarios of peaks and shortfalls on the high road in negotiations will be discussed. Whether one works for athletes, teams, or leagues, the session will stimulate and provoke thoughts. Questions & Answers will be taken through a moderator from attendees.
Panelists:
Marc Edelman (attorney and sports judge)
Art Wiess (attorney and NFL agent to Wayne Chrebet and others)
David Burke (general manager of the Hudson Valley Renegades)
Richard Grayso (attorney)
12:15pm-1:15pm Networking Luncheon & Honors Presentation
Gus Al�eri, the biographer for Joe Lapchick, will discuss the NCAA Lapchick Character Award, which was bestowed on several student-athletes at 2006 Final Four. Lapchick, who played for the Original (New York) Celtics in the 1920s and 1930s, coached St. John's University's men's basketball team to an NIT title in 1959. His son Richard Lapchick is a prominent commentator on sports and race issues.
Posted By : Michael McCann
Forcing Patriotism at Yankee Stadium
Message posted on : 2007-05-10 - 23:50:00
Thursday's New York Times reports that at Yankee Stadium, fans are not permitted to leave their seats when God Bless America is played during the Seventh Inning Stretch. Chains block the aisles and ushers face the crowd and order people to stop moving while the song is played. The story's lede captures it: "The most patriotic moments at Yankee Stadium can also be the most confining."
I will talk about what I think are the free speech problems here when I have a chance. For now, let me link to and endorse the comments from Deadspin: God Bless America is a bad song; it cannot hold a candle to America, the Beautiful (I am partial to the Ray Charles version myself); it has no place at the Seventh Inning Stretch; and I always to get to games early so I can remove my hat and sing the Star Spangled Banner before the game, so it is not that I simply dislike all patriotic symbolism and ritual.
More on this to come, I think.
Posted By : Howard Wasserman
Guilt by Irresponsibility or Guilt by Association? Steve McNair Arrested for DUI by Consent
Message posted on : 2007-05-10 - 15:29:00
Baltimore Ravens quarterback Steve McNair was arrested late yesterday in Nashville, Tenn., on a driving under the influence by consent charge. He was a passenger in his silver 2003 Dodge pickup truck, which was being driven by his brother-in-law. There is no evidence that McNair himself was intoxicated or even had any alcohol in him, as that doesn't matter with a DUI by consent charge: all that matters is the driver of the car was impaired, and that the owner of the car allowed the driver to drive the car; if so, the owner of the vehicle can also be charged with DUI, even if he isn't in the car. An increasing minority of states have this law or something similar (e.g., "aid and abet DWI" in North Carolina), and unfortunately for McNair, Tennessee is one of those states.
Rick Maese of the Baltimore Sun has an excellent column today on McNair's arrest and relates it to public reaction to Josh Hancock's death and the NFL's new discipline policy. I was interviewed for the column, and here are some excerpts:
Today we're swimming in that gray area, where you may not agree with a murky Tennessee law, where you don't know if there's a definite right and a definite wrong, and where we have no idea how the NFL will respond. With its new player conduct policy, the league has hinted that it might not see different shades in its black-and-white world.
This is made all the more difficult because sport is built within boundaries, rules and scores. Everything is measurable, the drama usually confined to a two- or three-hour block of time. But as more athletes do their in-town traveling via the back seat of a police car, there's no instant summation or clear-cut understanding.
"It's so easy to jump at the first facts," says Michael McCann, an assistant professor at the Mississippi College School of Law who runs sports-law.blogspot.com. "We're moved by the tragedy or the initial news report."
McNair's alleged infraction -- riding shotgun in a car he owned while the driver was allegedly drunk -- violated what McCann termed an "unusual law." As certain states strive to "get tough" and "crack down," they've lengthened the reach of accountability. In civil cases, you choke on food and skip over the line cook to sue the restaurant chain. And in criminal cases, authorities stretch liability as far as they can to discourage recklessness, and in theory, save lives.
"This is a law that's very scrutinizing of those who own cars and very protective of others on the road, the bystanders," McCann says. "It's built around public safety. It is your car, and there's certain expectation that you'll be responsible with it. It certainly raises the ante a bit."
If the facts come out and McNair knowingly allowed someone under the influence to get behind the wheel, he'd probably be guilty of pretty bad judgment. Did he break a law? Did he endanger others? It's foolish to even try inferring definitive answers today.
After all, the first thing to hit newsprint often only hints at the bigger truth. In this case, we're talking about "McNair charged a second time with DUI" -- even though he wasn't convicted the first time and last night's alleged infraction sure
has the makings of something that will be contested.
The full story is usually too complex to fit on ESPN's crawl. As a news item, it has the movement of a knuckleball and we don't know the direction. Similar to when a stripper accused lacrosse players of sexual assault. Or to when we lionized a likable young pitcher who was killed in a car accident.
One and a half weeks ago, Josh Hancock, of the St. Louis Cardinals, died after running his Ford
Explorer into a parked tow truck. Initial news reports praised Hancock and mostly ignored the unanswered questions. We later learned there was much more to the story, and that Hancock had a blood-alcohol level nearly double the legal limit.
"He went from being a hero to someone who we were suddenly skeptical of," McCann says. "I think certainly we need to be cautious until all of the facts come out. Whenever we react immediately, we're missing facts and context to the story."
This brings us to the NFL commissioner's office, which just last month issued a new conduct policy for its players, a set of vague zero-tolerance guidelines that would benefit from heeding the same warning as fans: When it comes to doling out punishment and deciding complicity, the smart area is somewhere between hard and fast and weak and slow. It's the gray area.
For the rest of the column, click here.
Posted By : Michael McCann
What does it take to be a sports agent?
Message posted on : 2007-05-09 - 09:05:00
Jeff Rabjohns and Mark Alesia of the Indianapolis Star have an interesting piece today evaluating Greg Oden's announcement yesterday that he hired Mike Conley, Sr. as his agent to represent him in contract negotiations ("Transition game: Oden's mentor becomes partner").
So who is Mike Conley, Sr. (pictured at right)?
- He is the father of Oden's high school and college teammate, Mike Conley, Jr.
- He is a three-time Olympian and former Olympic gold medalist in the triple jump
- He has coached summer basketball teams to six AAU national titles
- He is executive director of World Sport Chicago, a group aiming to land the 2016 Olympics for Chicago
- He spent seven years as executive director of Elite Athlete Programs for USA Track & Field, where he oversaw the agent program and wrote the agent handbook
- He established the Professional Athletics Association for track and field athletes.
And yesterday he became a partner with Oden in an eight figure business. But what Conley IS NOT, is an experienced agent. As noted in the story, "One of the most talked-about rookies in NBA history, represented by a rookie NBA agent." Mark Alesia interviewed me for the story, and we had a very interesting discussion about what it takes to be a sports agent.
The answer to the question of what it takes to be a sports agent is simply to be certified as an agent with the players association and to have a client. The more difficult question to answer is, how does a player entering the draft make a properly informed decision in selecting an agent? I discuss this issue in depth in my law review article, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players. When you think about it, you have an amateur player who is below the legal drinking age, but he's expected to make one of the most important decisions of his life in selecting a fiduciary to look after his best interests in a multi-million dollar enterprise based solely upon interviews with people he has never been associated with or even met before. An interesting tidbit of information is that, if Oden was a football player, Conley would probably not be certified by the NFLPA because Conley has not received a post-graduate degree (as required by the NFLPA agent regulations).
A player in Oden's position is heavily solicited by dozens of agents influenced by dollar signs and is offered all sorts of promises and inducements. The concern is that the player is being unduly influenced by agents in the selection process. Conley is actually serving as a "buffer" in alleviating that concern. While players tend to make their decision based upon such factors as the agent's experience and who the agent represents, these definitely should not be the only factors. Oden chose somebody he has known for years and obviously trusts a great deal, both important factors. As I told Alesia, I think the fact that Oden decided not to just go with a high profile agency with a "show me the money" attitude reflects favorably upon his character.
The fact of the matter is that Oden is most likely the number one or two pick in the draft (I'm "projecting" number one). He probably feels, and rightfully so, that whoever represents him as his agent is not going to impact which team selects him in the June 28 draft. Also, with rookie scale contracts in the NBA, there is not a whole lot of room for negotiation. Is
the agent worth the standard 4% commission under these circumstances? In my law review article, I mention how these factors have decreased the utility of an agent in contract negotiations. Conley's new agency, MAC Management Group, will become partners with BDA Sports Management, an experienced agency that represents NBA players. Conley's company will handle Oden's NBA contract and turn to BDA for help on endorsements and marketing.
Oden has chosen a similar model used by LeBron James, which seems to have worked for LeBron, in which Conley will essentially outsource the endorsement and financial planning services needed by Oden. In my law review article, this is the model I advocate for unions to adopt by which players would have the option to have a union-employed person handle the individual contract negotiations and oversee the outsourcing of other services to third parties. Obviously, the third-party agents currently advising all of these players have no interest in that happening whatsoever, so I'm sure agents will not be discussing such a possibility with their players anytime soon.
Posted By : Rick Karcher
WAKA v. DCKickball: A Claim Worth Kicking Aside?
Message posted on : 2007-05-08 - 10:20:00
In March 2006, I blogged about
largest sanctioning body for adult kickball in the United States. It features It has also been credited with "the popularization of the children's game as a recreational and social activity among adults."
5. Is this a serious league?
God, I hope not. Maybe about drinking. The focus of DCKickball, from the beginning, is about meeting people, having fun, and not taking things too seriously. But it's pretty much up to everyone involved to contribute to this attitude. If you encounter anyone who isn't into this, please tell them to chill-out. It's just kickball, people.
So if it is just a bunch 20-somethings having fun playing kickball and hanging out at parties, why would their leagues sue each other?
WAKA claims that it enjoys copyright protection in its game rules and that DCKickball stole two of those rules: 1) WAKA now
seeks $356,000 in compensatory and punitive damages. WAKA bases its claims on the originality of its league and 
rules: while the four men who started WAKA acknowledge that they did not invent kickball, they assert that they were the first to start "social adult kickball" and to come up with its rules.
M.S. Enkoji of the Sacramento Bee just published an excellent article on the growing popularity of kickball, and she includes discussion of this lawsuit. Along with a number of other persons, I was interviewed by Enkoji, and I discuss the lawsuit. Here is the legal discussion found in Enkoji's piece:
But the very uncomplicated game of kicking a big red ball and rounding the bases -- think softball without the bats -- has become a federal case. WAKA has sued another kickball league, DCKickball, in U.S. District Court in Alexandria, Va., claiming "copyright infringement." WAKA is claiming that when former members broke off to form the second league, they stole WAKA's unique rules. Neither side will talk about the lawsuit."They think all of a sudden they created kickball? It's kickball," said Michael Murphy, general manager of the Golden Gate Sport and Social Club in San Francisco. "You roll the ball; someone kicks the ball," he said, explaining the basic rules of the game his organization also offers. "It's a free country." The San Francisco club, which has not been sued by WAKA, is part of a multi-sport national organization that started 12 years by some Chicago women interested in co-ed football.
"It's hard to believe that people would go to court over this," said Michael McCann, an assistant professor who specializes in sports law at the Mississippi College School of Law. "The notion that they own a sport, that's just crazy." McCann said the suit boils down to a complicated legal point that will be tough to prove. No one owns the mechanics of the game, just as baseball and basketball aren't owned, he said. But the way certain rules are "expressed" or used, such as requiring at least four women and four men on each team, could possibly be a copyright issue, he said.
So while WAKA can likely establish that it enjoys copyright protection in how it expresses a rule, it is very unlikely that it can establish ownership in the mechanics of that rule. John Marshall law professor William Ford, who blogs on Empirical Legal Studies, similarly noted this in response to my post last year:
You are free to copy the method of play, but you need to express it in your own words (or in words in the public domain) . . . The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine . . . WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic.
Aside from its intellectual property dynamics, this lawsuit can also be viewed from a competition/antitrust perspective. In that vein, one might argue that it is an attempt by the much better financed WAKA to raise DCKickball's expenses and put it - WAKA's major competitor in DC - out of business. Whether that is true or not is
unclear.
We'll keep you updated on WAKA LLC v. DCKickball et al. For a thoughtful response from a DCKickball player, see Martin Austermuhle's post on DCist.
Posted By : Michael McCann
The Abbreviated One-Year Contract Strategy: Roger Clemens signs with New York Yankees
Message posted on : 2007-05-06 - 20:25:00
Red Sox fans received some discouraging news earlier today, when 44-year-old free agent pitcher Roger Clemens announced that he has agreed to a one-year, $28 million contract with the New York Yankees. The contract is prorated for the remainder of this season, meaning that Clemens will "only" earn $18 million (or about $4.5 million a month). The Red Sox apparently offered Clemens $10 million less than the Yankees, while the Houston Astros--the other team competing for his services--offered even less. In adding Clemens, the Yankees' 2007 player payroll will rise to about $218 million, the highest in baseball and a rather pricey sum for a team with a middling 14-15 record.
Clemens and his agent, Randy Hendricks (pictured to right), have employed a unique and apparently effective free agent negotiating strategy the past couple of seasons: wait until May or June (or whenever large market teams become unexpectedly desperate for pitching), create a bidding war between rival teams without having to compete against other marquee free agents for those teams'
attention, sign a massive one-year contract, and then do it again the next year.
I'm not sure how many players could pull this strategy off, but it will be interesting to see if other star free agents try it in the future. Not only has it provided Clemens with a string of incredibly-lucrative one-year contracts, but it has enabled him to both avoid the wear-and-tear of spring training and considerably shorten his working year. It has also allowed him to obtain valuable employment perks, such as routinely being excused from traveling with the team and thus being able to spend more time with family. On the other hand, by using a one-year contract strategy, Clemens probably amplifies the risk of injury or under-performance on future earnings (although after a spectacular 23-year Major League career, I suspect that he has a decent chunk of change in the bank should either of those risks materialize).
Despite Clemens joining the Yankees, all is not lost for Sox fans. Buoyed by 40-year-old Curt Schilling, their team won today and now enjoys a 20-10 record, tops in the American League. Even better (perhaps, maybe), Jon Hanson and I published an article on The Situationist today entitled "Red Sox Magic." It examines the "faith" of Sox fans in their favorite team. Here is an excerpt:
But what about fans who merely wish ? Does wishing make a difference? And if not, why would they still wish? [Princeton University social psychologist Emily] Pronin's research, again, indicates that wishing satisfies our urge for control at those times when
actual control over outcomes we care about is in short supply.
This phenomenon was certainly apparent in the buildup to Red Sox victory in 2004. Consider the classic thread “Win it For� on the popular Red Sox fan messageboard Sons of Sam Horn (also known as “SoSH,� of which principal owner John Henry and ace pitcher Curt Schilling are members). The thread was started by high school teacher and diehard Sox fan Shaun Kelly right before Game 7 of the Sox-Yankees American League Championship Series. By urging fellow fans to dedicate the game to “the special people in their lives who had loved the team through thick and thin,� Kelly hoped that he would create some “mojo� for the Sox. He concluded his message with . . .
the rest of our article on The Situationist.
Posted By : Michael McCann
Connecticut May Become First State to Ban the Bullhook in Circuses
Message posted on : 2007-05-05 - 14:24:00
On a day when we celebrate the racing of horses in the Kentucky Derby, Connecticut lawmakers are debating whether to become the first state to ban the use of the bullhook, a tool used by circus employees to herd, control, and punish elephants. Circus officials claim that the bullhook is necessary to ensure that elephants behave correctly for the show. Animal rights activists claim that it tears, hurts, and scars elephants, as the bullhook features a steel hook designed to puncture the elephant's skin. It sounds painful, and according to the People for the Ethical Treatment of Animals (PETA), it is. Here is PETA's description of how the bullhook is used on the elephant's skin:
The thickness of an elephant's skin ranges from one inch across the back and hindquarters to paper-thin around the mouth and eyes, inside the ears, and at the anus. Their skin appears deceptively tough, but in reality it is so delicate that an elephant can feel the pain of an insect bite. A bullhook can easily inflict pain and injury on an elephant's sensitive skin. Trainers often embed the hook in the soft tissue behind the ears, inside the ear or mouth, in and around the anus, and in tender spots under the chin and around the feet.
San Jose, Calif., humane inspectors found that seven Ringling Bros. and Barnum & Bailey Circus elephants "had injuries behind or on the back of their left ears. Some of the elephants had scars behind their left ears. Almost all of the injuries appeared to be fresh, with bright red blood present at the wound sites."
Sponsored by State Rep. Diana Urban (pictured to right), the bill has already passed the
Connecticut House Judiciary Committee. Of concern to circus fans and some businesses and policy-makers in Connecticut, Ringling Brothers has pledged to boycott the state if the bill becomes law, meaning that the nation's largest circus company would no longer host circuses in the Constitution State. The absence of those circuses would present economic consequences. Indeed, the annual economic loss of circuses not occurring in Bridgeport and Hartford --the state's most populous and third-most populous cities--project to be about $2.6 million, including $200,000 in state and local taxes and $400,000 in locally purchased supplies.
It's worth mentioning the context of this bill, as it has not come out of the blue. Not only are other states, such as Massachusetts, Rhode Island, and Nebraska, contemplating similar legislation, but Ringling Brothers has come under intense legal fire over the last couple of years. For instance, the company is fielding an on-going federal lawsuit from various animal rights groups which, under the Endangered Species Act, allege that "Ringling Brothers' routine beating of Asian elephants with bull hooks, its forcible separation of baby elephants from their mothers, and its chaining of elephants for long periods of time constitute the unlawful 'take' of these endangered animals in violation of the ESA." PETA also sued Ringling Brothers last year on allegations that it ran an extensive corporate espionage campaign against PETA and hired a former CIA operative to help conduct the operation.
I recognize that a circus and the law story might seem like a stretch for a sports law blog, but the Michael Vick pitbull fighting/animal abuse story must still be on my mind. And taken together, these stories appear to illuminate at least a couple of ways that we abuse other animals to entertain ourselves. That point brings to mind Geoffrey's excellent post from last May entitled "Was Barbaro Abused?"
Posted By : Michael McCann
Credentialing Sports Bloggers
Message posted on : 2007-05-04 - 11:07:00
[Updated with corrected link to Bucco Blog.]
I received a link the other day to Bucco Blog, a blog devoted to the Pittsburgh Pirates. From May 2, Jake discusses his efforts to gain press credentials for the 2006 All-Star Game at Pittsburgh's PNC Park.
Jake sought credentials with the help of some MSM outlets, but was denied. But MLB Senior VP of Public Relations Richard Levin told him that, while current MLB rules do not allow bloggers to receive press credentials, MLB is evaluating those policies and trying to figure out how to treat bloggers.
The issue of credentialing bloggers is interesting from two ends. From one end is how MLB (and other leagues) can and should consider bloggers when deciding who gets media credentials. The sheer volume of sports blogs and bloggers means teams and leagues cannot accommodate everyone who might seek credentials, requiring some sorting and priority mechanism.
But based on what--readership, influence, impact, first-come/first-serve, lottery? The latter two cannot work, obviously, because the league wants (and needs) the biggest and most powerful media outlets to have access. And although it is easy enough for MLB to say that, for example, Deadspin or Kissing Suzy Kolber, the biggest of the sports blogs, can be treated the same as The New York Times or Sports Illustrated. But what about smaller blogs, which are having as much of an impact and are doing as much important reporting and speaking about sports?
Of course, being private entities, the leagues can do what they want. Unless the use of public sports facilities changes that. The one case in which a court has held that the use of a public sports facility by a private league made the league a state actor involved media rules. In Ludtke v. Kuhn, a district court held that MLB's rule barring female reports from the clubhouse at Yankee Stadium during the 1977 World Series violated the Equal Protection Clause. So, perhaps a blogger, denied credentials at an event at a public stadium, could cobble together a First Amendment argument.
From the other end, there is the question of whether many bloggers even want press credentials. Part of the essence of blogging and on-line sports reporting is the distance that writers keep from the players and coaches by not traveling with the team, being in the locker room, etc. Many believe that distance enables them to write more objectively and critically (when necessary and appropriate, of course) than they would if they had a personal relationship with the players. Certainly Bill Simmons of ESPN trumpets the fact that, when he was getting his start and building his reputation, he was writing from outside the players' inner sphere.
The credentialing issue may force sports leagues to grapple more quickly than other fields with the question of "who is a journalist".
Posted By : Howard Wasserman
Action on the Court (of Appeals), Part II
Message posted on : 2007-05-02 - 22:00:00
As promised, here is the third, and potentially most far-reaching, of the sport-related cases out of the federal courts of appeals. In Jennings v. University of North Carolina, the en banc United States Court of Appeals for the Fourth Circuit reversed a grant of summary judgment and remanded for trial in a sexual-harassment lawsuit by a former UNC women's soccer player against long-time Head Coach Anson Dorrance and several university officials. Jennings, who spent two years as a back-up goalie before being cut from the team, brought claims under Title IX (which prohibits discrimination or denial of benefits "on the basis of sex" by educational institutions receiving federal funding) and the Equal Protection Clause. Jennings sued along with another former player, Debbie Keller; Keller's claims settled.
Jennings's case centers on the sexually charged and sexually explicit atmosphere within the UNC soccer program, mainly sexually oriented discussions among the players in which Dorrance often participated. This included questions and comments, in vulgar and explicit terms, to and among players about their dating, personal, and sexual activities; comments Dorrance allegedly made to a male trainer about wanting to have a threesome with his Asian players; and directly questioning Jennings about her current sexual partner. Jennings testified that this focus on sex and sexual activity made her feel "uncomfortable, filthy and humiliated." The majority opinion recites a number of such sexually explicit incidents over and over again throughout the opinion in holding that Jennings had put forward evidence which, if believed, would allow a jury to find that she had been the victim of sexual harassment.
The case, particularly in the very different pictures painted and conclusions drawn from the record by the 8-judge majority and the 2-judge dissent, has some interesting features. And, as a diclaimer, let me say that I do not know much Title IX law (beyond the very basics), so I welcome comments from people who know more than I do.
First, there is the unique context of sports, sports teams, and the locker room and practice field, where much of the harassing talk took place. Conversations in team locker rooms often focus on sex, usually in frank and vivid detail about who is engaging in what acts how often with whom. I know this from firsthand experience working with men's college basketball teams as a student manager and as a coach and I have no reason to believe it is different with other men's sports. The facts in the UNC case (especially as described in the dissent's narrative) suggest there are similar conversations in women's locker rooms.
The majority and the dissent both purported to account for the unique context of high-level competitive athletics and the team locker room in considering whether anything actionable had occurred. The majority insisted that its "conclusion takes into account the informal, sometimes jocular, college sports team atmosphere that fosters familiarity and close relationships between coaches and players." The dissent similarly insisted that the "proper baseline by which to judge the language of Coach Dorrance and Jennings' teammates is the world of competitive collegiate athletics in which coaches, by necessity, have a much more casual and personal relationship with their student-athletes." But they obviously reached very different conclusions.
Second, it seems somewhat strange to say that Jennings was discriminated against "on the basis of sex"--that is, because she is a woman. The majority insisted that "Dorrance's persistent, sex-oriented discussions, both in
team settings and in private, were degrading and humiliating to his players because they were women." But that is true only if all discussions of sex and sexual conduct, if pervasive enough, are harassing or discriminatory towards women. Thus, any woman who is offended by sex-oriented talk (as Jennings was) is being harassed or disadvantaged because she is a woman. But is Title IX (or Title VII, in the analogous employment context) supposed to be that broad?
The facts show that Dorrance talked to Jennings about sex and sexual activities just as much as he talked to the other UNC players (all of whom also are women, obviously) about sexual activities. Aside from one incident, in which Dorrance asked Jennings, in a private post-season meeting, who she was having sex with (as part of a broader series of questions apparently aimed at determining the cause of Jennings' poor academic and athletic performance), all the relevant conversations took place during team meetings, warm-ups, etc. It seems that Dorrance treated Jennings no worse than he treated any other woman on the team in these respects. This environment is perhaps hostile and abusive--and it arguably is too intimate an environment for an educator and his students in an educational institution--but it does not seem hostile and abusive because of sex (in the sense of being female). As the dissent argued, Jennings was not exposed to such sexual comments and banter because she was a woman, but because she was a member of the women's soccer team.
Third, and relatedly, there is the question of how much the outcome of this case turns on the fact that this is a case of a man coaching women athletes. Would the same lawsuit have come about if it was a woman coach having the same sex-oriented conversations and using the same language with her women players? I seriously doubt there would be such a lawsuit by a male athlete against a male coach. The majority again insisted that "Title IX is not a civility code for the male coach who coaches women, and it is not meant to punish such a coach for off-color language that is not aimed to degrade or intimidate." But it is difficult not to see this case as suggesting that male coaches now are more limited in how they can engage their female players in the sort of informal, intimate conversations that all the judges agree are a part of the athletic environment.
Fourth, there is whether Jennings could have been harassed by some of the comments and incidents at issue because most were not directed at her. Several occurred outside of her hearing and several others occurred before Jennings even joined the UNC program -- she only heard about them second- or third-hand, because people still were talking about them. The record shows only two comments directed to or about Jennings. Thus, her claim is about the "environment" of the program more than any harassment directed to her.
Again, I think this case could be far-reaching, particularly because I would not be surprised if the Supremes took this case (assuming UNC and Dorrance seek cert).
Posted By : Howard Wasserman
Action on the Court (of Appeals)
Message posted on : 2007-05-02 - 06:44:00
Three sports-related cases came down from three federal circuit courts of appeals in the last month. Let me talk about the two shorter ones here, then save the third for a separate, longer post.
The first is Breen v. Texas A&M University from the Fifth Circuit. Since 1909, students at Texas A&M have built a massive tower bonfire to light on the eve of the Texas game; it symbolizes the "burning desire" to beat the LongHorns. In 1999, the tower collapsed during construction, killing 12 and injuring 27. The report of the investigatory commission is here. Lawsuits followed against the university and its officials by victims and their families. The theory of the suits was that, by delegating responsibility for construction of the bonfire to a group of students who were not trained or qualified for the task, the university had engaged in outrageous conduct in violation of substantive due process. The Fifth Circuit affirmed the grant of summary judgment in favor of the defendants on a defense of qualified immunity.
The court accepted that an earlier panel opinion in this action had recognized the "state-created danger" theory of due process liability. That theory makes the state liable for the misconduct of others (here the student leaders actually responsible for overseeing building of the tower) when the state somehow created the situation that allowed others to act in a way causing harm (here, by delegating responsibility). And the court accepted that the plaintiffs had sufficiently alleged a due process violation on that theory. But the court held that theory of liability (and thus individuals' rights to be free of government conduct that created such a danger) was not clearly established in 1999 (at the time of the events). Thus, a reasonable government official would not have known that, in delegating responsibility for the bonfire to students, he was violating the substantive due process rights of the other students who might come into contact with the bonfire.
Pretty straightforward stuff. The court perhaps was a bit stingy in recognizing how widely accepted (at least outside of the Fifth Circuit) the state-created-danger theory was in 1999. But this also seems like a case involving a tragedy for which there was some negligence and responsibility for the deaths and injuries, but not the sort of deliberate unconscionable misconduct that is the stuff of constitutional law.
The second case, out of the Tenth Circuit, is Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n. That case involved an Equal Protection challenge to an OSSAA rule granting automatic membership to public schools, but requiring private schools to get the approval of a majority of OSSAA members. Christian Heritage Academy twice applied for membership and twice was rejected, supposedly out of concern for the large geographic area from which the school drew students.
The panel majority accepted that the OSSAA had several legitimate interests supporting the majority-vote requirement for private schools: preserving competitive advantage, preventing recruiting and exploitation of athletes, and preserving a balance between athletics and academics. But the majority held that those interests were not furthered by the majority-vote rule. Member schools' votes were unguided and standardless, meaning a nonpublic school could be denied membership even by a majority of membership schools, even if the applicant school posed no danger of recruiting or harming competitive balance. Thus the differential treatment of nonpublic schools seeking to join the OSSAA violated equal protection. The court remanded with orders to enter judgment
in favor of Christian Heritage and to formulate an injunction against the majority-vote rule.
This case is somewhat of a piece with Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy, the First Amendment challenge to a high-school-athletics recruiting ban, a case on which the Supreme Court heard oral argument last month and which was discussed at length here and here. Both cases deal with constitutional issues arising from efforts by a scholastic athletic association to maintain competitive balance and to keep sports in its place.
More importantly, both reflect a tension over how to incorporate public and private schools in scholastic athletic associations. The record in Christian Heritage showed public schools' fears of competing with private schools, given the latters' perceived advantages owing to their ability to recruit, to offer financial aid, to attract students from a wider area, and to attract transfer students. Public school officials were specifically concerned that private schools were enjoying on the athletic field, success that (the theory goes) is traceable to those competitive advantages. The record shows that Christian Heritage's memberhsip application was being considered and rejected in 1998 and 1999, when several nonpublic schools were enjoying great athletic success.
One of the amicus briefs supporting the TSSAA in Brentwood came from the "Small Independents," four small private schools. They argued that if the recruiting rule is unconstitutional, the TSSAA could not continue to include public and nonpublic schools, because private schools given a First Amendment liberty to recruit would enjoy a competitive advantage. The events underlying Christian Heritage suggest many public school would prefer to go on without private schools.
Posted By : Howard Wasserman
SLA Annual Conference
Message posted on : 2007-05-01 - 09:57:00
The Sports Lawyers Association 33rd Annual Conference is going to be held in Boston on May 17th - 19th. The three-day event is, by far, the largest and most comprehensive sports law symposium assembled every year. The conference attracts the attendance of sports industry people nationwide from law firms, sports agencies, team front offices, professional leagues, players associations, collegiate athletics, and academia. The conference is highly educational, as well as a great networking forum. I highly recommend the event for anyone interested in entering the sports law field. The conference brochure may be accessed here.
Posted By : Rick Karcher
Boston Celtics and the Law
Message posted on : 2007-04-29 - 14:58:00
Tonight at 7:15 p.m. EST I will be a guest on Celticsstuff Live (update: podcast available here) a radio show devoted to discussion of the Boston Celtics, my favorite NBA team. We will be discussing a recent post that I helped to write on The Situationist entitled "The Situation of the NBA Draft," which examined how NBA players' success is often based on the situation in which they play, even though we tend to judge them as individuals.
We will also be discussing four Celtics-related legal developments that have arisen in the last week:
1) Tony Allen Acquitted: Shooting guard Tony Allen, who had been charged with aggravated
battery relating to a Chicago restaurant shooting and was facing two to five years in prison, was acquitted last week in a bench trial before an Illinois state judge. Last September, I wrote a lengthy article on Allen's trial entitled "Tony Allen's Trial: Contemplating Guilt." At least from afar, it's interesting that Allen was acquitted since, according to some reports, the Chicago Police Department had the entire shooting on videotape (although I've also read that the videotape actually exonerated Allen--and as we know, establishing reasonable doubt in a criminal trial is a low threshold). In any event, Allen, who is rehabbing from a serious knee injury, still faces a civil lawsuit from Marktwain Johnson, the man whom Allen allegedly directed someone in his group to "F--k him up!"
2) Sebastian Telfair Arrested: Point guard Sebastian Telfair, who had a disappointing season after the Celtics traded the #7 pick in the 2006 NBA draft to obtain him, was arrested by the NYPD last week after officers, who had pulled Telfair over for speeding, found a loaded .45-caliber Colt semiautomatic handgun in his car. The gun, which was not registered in Telfair's name and does appear to be his, was under the passenger seat. A victim of a robbery last fall, Telfair has been
charged with felony second-degree possession of a weapon since under New York law, "when drugs or weapons are found in a car, everybody in the vehicle is charged with the related offense, unless a single person admits it belongs to him."
Controversially, the Celtics responded to the arrest by removing Telfair's nameplate from his practice facility locker and pledging that he would never play another game for them. Telfair's attorney, Ed Hayes, lambasted the Celtics for this presumption of guilt maneuver, saying,
"It's a cheap shot and my client is very disappointed. It seemed to me that they were looking for an opportunity to dump this kid who has worked really hard in his life . . . He's never been arrested before. He came from total poverty and made enormous sacrifices for his family and I think that entitles him to the benefit of the doubt from the public as to what really happened here."
3) Kendrick Perkins Sued for Breach of Contract: Center Kendrick Perkins, who will hopefully be supplanted by Greg Oden next season (I can dream), has been sued by Michael
Rylas, his former high school assistant coach who would later become his personal trainer/manager/confidant, for breach of contract. Right after Perkins was selected with the 28th pick in the 2003 NBA Draft out of Ozen High School in Beaumont (TX), Rylas moved with Perkins to Massachusetts and lived with him until last fall. During that time, Perkins paid Rylas, apparently without a contract and perhaps under the table, for various services (training, investing advice, tax advice--basically being Perkins' Chief of Staff).
Then, on September 7, 2006, Ryals and Perkins entered into a formal written contract that called for Rylas to continue to perform those services in exchange for 6 percent of whatever Perkins earned from his NBA contract, but excluding monies he would receive from endorsements or incentives. Perkins would then sign a 4-year, $16 million contract extension with the Celtics but did not, according to Rylas, live up to his end of the bargain.
4) Kevinn Pinkney Arrested for DUI: Forward Kevinn Pinkney, a key member of the Celtics' late season tanking efforts after being signed to a 10-day contract, was arrested on suspicion of driving under the influence in Reno, Nevada last week. He failed several field sobriety tests
and was later booked for DUI. I suspect he won't be coming back to the Celtics next season.
I hope you get to listen to the show or its podcast. Thanks to Jon Duke, Justin Poulin, and JB for having me on.
Posted By : Michael McCann
Brady Quinn, the NFL Draft on ESPN, and Confirmation Bias
Message posted on : 2007-04-28 - 15:02:00
For those of you who are also watching the NFL Draft, I wonder if we can get any more attention devoted to Brady Quinn, who has received more air time (and at least three personal interviews, including one with a moribund Suzy Kolber who tried desperately to get him to shed a tear or at least a swear) than all other players there, combined? Quinn, who was projected by most mock drafts to not fall past Miami at #9 (and many drafts had projected him to go #3 to Cleveland) has not yet been drafted, and we are on pick #16 as I write this. What I find interesting is how confirmation bias appears relevant in ESPN's coverage of Quinn.
What is confirmation bias? It's a cognitive bias that we all suffer from, and it causes us to interpret information, and to amplify certain information, that validates our beliefs at a particular time. So our minds cherry-pick facts and observations that help to validate an opinion, but discount or altogether ignore information that contradicts that opinion. I write about confirmation bias, and other cognitive biases, in my law review article . In the article, I examine how Jermaine O'Neal seemed to suffer from confirmation bias when he thought that Larry Bird would keep Isiah Thomas as head coach, a belief that many found dubious and yet one that O'Neal regarded as crucial in re-signing with the Pacers in 2003.
But back to Brady Quinn. When the draft began, the ESPN guys were flowering him with superlative after superlative. Steve Young was particularly effusive, gushing that Quinn had remarkable intangibles and would be a fantastic pick. Chris Berman couldn't get enough of the guy. It was as if Brady Quinn was a can't-miss prospect.
But he didn't go number 1. And then Cleveland passed on him at #3 (at which moment the ESPN cameras focused not on the Browns pick, Joe Thomas, or on the Browns fans, but rather on a dejected Quinn and his mom and girlfriend, followed by a photo of Quinn when he was 5-years-old wearing a Browns uniform. Oh the sadness!). Worse yet, when Miami surprisingly drafted Ohio State wide receiver Ted Ginn at #9, suddenly there was a need to explain what's wrong with Brady Quinn. Why had no one picked him? There must be some reason.
Well in came the ESPN trio of Michael Smith, Sean Salisbury, and Mark May who proceeded to deride Quinn as "overrated"; "doesn't play big in big games"; "not accurate"; "even his name 'Brady' is a problem," Michael Smith curiously put it. No longer was Brady Quinn a can't-miss prospect, he had become the beneficiary of playing at Notre Dame, a product of Charlie Weis' play book, and certainly not worthy of a high draft pick. Even worse, his first name was Brady. What were his parents
thinking?
It's interesting to observe the rapid shift in "expert" observations of Brady Quinn to fit an unexpected development in the draft. When things looked good for Brady Quinn, Brady Quinn looked good; when the going got tough, so did how others characterized him.
Still, it's undeniably fun to watch the NFL Draft.
Update: As I pat myself on the back for my prediction in the comments section coming true (a first, no doubt), the Browns traded with Dallas to take Quinn at #22, and now ESPN loves Brady Quinn again--"he's not afraid to throw the tough throw,"Braveheart as QB if you will--while doubting the Dolphins for passing on him at #9 (where were those doubts earlier?). And as I type this, Suzy Kolber is interviewing him again, except asking softball questions this time around.
Posted By : Michael McCann
Honoring Harvard Law School Professor Paul Weiler
Message posted on : 2007-04-27 - 07:10:00
Harvard Law School professor Paul Weiler is considered by many to be the founder of American sports law and the most distinguished sports law professor around. A renowned expert in many legal fields, including labor law and entertainment law, his extraordinary legacy in sports law is the focus of this post.
From a pedagogical perspective, Professor Weiler's sports law course at Harvard Law School has been crucial in turning our favorite area of the law into a respected and legitimate field. Even more impressive, Professor Weiler has been a wonderful mentor to so many students and former students, including me. He is always available to provide advice and guidance, and his friendship is invaluable.
Professor Weiler's scholarship has also been essential to the creation and growth of sports law. He is the co-author of perhaps the leading sports law case book with Gary Roberts, "Sports and the Law: Text, Cases, and Problems" as well as many influential books and law review articles, including "Leveling the Playing Field: How the Law can Make Sports Better for Fans," which the New York Times Book Review called "a provocative book that combines the broad knowledge of an all-seasons sports fan with the clarity of an antitrust lawyer."
Beyond his teaching and writing, Professor Weiler has been a noted public advocate for sports law. He has testified before the U.S. Congress and met with various political leaders in Canada, his home country. Given the trust that so many influential persons have placed in Professor Weiler, it's not surprising that the late Boston Globe columnist Will McDonough once said, "When it comes to sports law, Paul Weiler knows the answer before you ask the question."
Tonight, Harvard Law School will honor Professor Weiler, who has taught there since 1979. I am honored to be participating in this great event, which will feature a keynote address from Peter Gammons and the following schedule:
The Rules of the Game:
The Winning Effect of Paul Weiler
Friday April 27, 2007
3:45 to 5:00 Panel (Austin West): "Rules of the Game: The Winning Effect of Paul Weiler"
Roger Abrams
Professor and Former Dean of Northeastern University School of Law
Stuart Brotman
President of Stuart N. Brotman Communications
Michael Curley
Partner in the Labor and Employment Law Department of Morgan Lewis in New York City
Donald Fehr
Executive Director of the Major League Baseball Players' Association
Rick Horrow
CEO of Horrow Sports Ventures
Rob Manfred
Executive Vice President of Labor Relations & Human Resources at Major League Baseball
Jeffrey Pash
Executive Vice President of the National Football League
5:30 Reception (Caspersen Room in Langdell Hall)
6:30 Dinner (Caspersen Room in Langdell Hall): Keynote speakers:
Elena Kagan
Dean of Harvard Law School
Peter Gammons
Baseball Commentator on ESPN
Other speakers:
Stephen Greyser
Richard P. Chapman Professor of Business Administration, Emeritus, at the Harvard Business School
Joseph Weiler
Professor of Law at the University of British Columbia
Robert Weiler
Attorney
Please contact Professor Weiler's assistant, Susan Smith, with any questions. It should be a great event.
Update: See Professor Weiler's new blog, which includes a post on the event and one on an interview with his family. You can also see tons of great photos from the event.
Posted By : Michael McCann
Michael Vick, Pit Bull Fighting, and The NFL's New Personal Conduct Policy
Message posted on : 2007-04-26 - 19:19:00
Last week, Rick had a terrific post that examined whether the NFL's new personal conduct policy affords Commissioner Roger Goodell too much discretion. We now hear, through Deadspin, that Michael Vick has possibly been running an illegal pit bull fighting ring, and it's interesting to speculate how Commissioner Goodell might apply the code to Vick.
So what has Vick allegedly done? Well, he owns a home in Smithfield, Virginia, where state and county animal abuse investigators were recently called in to investigate after local law enforcement officers, who were acting on a search warrant relating to drugs, found that the property was hosting fights between pit bulls. You can read the details here, but basically they found 70 dogs, many of whom were suffering from neglect (including injuries and dehydration).
They also found overwhelming evidence of organized pit bull fighting that took place in three buildings behind the home. That evidence included "rape stands (used to allow fighting dogs to breed while preventing them from attacking each other), equipment used to build strength and endurance in fighting dogs, and controlled substances frequently used in dog-fighting." Pretty disgusting stuff, if true, and not to fan the flames, but check out some of the horrific injuries to dogs who are forced to partake in pit bull fighting, as found on Google Images--but be warned, they may make you sick.
In fairness to Vick, 1) no charges have been filed (yet); 2) while he owns the home, he doesn't live there; his nephew does; 3) we have not yet heard his side of the story--it's always easy to jump to conclusions when only side of the story is available; Vick may have an explanation that mitigates, if not exonerates, his role in what appears to be an illegal operation.
But what will Commissioner Goodell do if Michael Vick is indeed charged with animal abuse, which, under Virginia Law (Virginia, Code Ann. 3.1-796.122), is punishable by up to one year in prison and a $2,500 fine?
Sports Law Blog reader Will Li considers that question and wonders whether the sheer expansiveness and vagueness of the new personal conduct policy--characteristics that at first glance would seem to empower Commissioner Goodell--might ultimately prove to be his undoing:
With the news that Michael Vick is in trouble again, I'm wondering how Roger Goodell will act on this.
Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct
policy is not only bad for the players, but will be bad for the Commissioner as well.
By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.
For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?
Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).
I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.
Will makes a compelling case. Is he right?
Posted By : Michael McCann
Duquesne Hoops Player Sues School for Lack of Security
Message posted on : 2007-04-26 - 14:58:00
ESPN.com has just
reported that
Stuard Baldonado, one of the five
Duquesne Dukes basketball players shot at an on-campus dance back on September 17, 2006, has sued the school for lack of security (provision and enforcement).
The Pittsburgh Post-Gazette has a more detailed account
here.
Baldonado, a transfer from Miami-Dade CC, had not yet played for the Dukes prior to being shot in the arm. The lawsuit alleges that the bullet hit an artery and then continued through his chest, missing his spine by a centimeter. Baldonado, who utilized a medical redshirt last season, currently works out with the team.
According to his attorney, the injury is affecting the full-range of his basketball abilities, resulting in a loss of future earning capacity. The lawsuit also seeks recovery for past and future medical expenses, as well as pain and suffering.
Posted By : Tim Epstein
The Lost NCAA Conference
Message posted on : 2007-04-25 - 06:53:00
In 2002, John Thelin noted:
"[I]n recent years there has been a groundswell of excellent scholarly works dealing with intercollegiate athletics. The topic has both endurance and significance now that such disciplines as history, economics, law, literary analysis, and political science have been brought to bear on the serious study of college sports. Don't hold your breath for any strong connection between research and reform. As the scholarship on college sports gets better, the educational and ethical problems of college sports get worse."
In 2006, apparently unaware of such a groundswell, and noting the lack of such research, Dr. Myles Brand and the NCAA decided to sponsor an academic conference to encourage scholars to study college sport.
"The NCAA decided to sponsor the academic conference, he [Brand] said, because it wanted to involve faculty members not in role they sometimes play on their campuses — helping to oversee and govern the sports programs — but in their primary role as scholars. 'The idea was that there's another role for faculty in intercollegiate athletics that we haven't taken up at the NCAA, and that's to treat intercollegiate athletics as the subject matter for research,' said Brand, a philosopher who was president of Indiana University before taking the reins at the NCAA. 'We thought it would be helpful if the NCAA would be supportive of that effort.' "
As a result, the NCAA announced it would host a conference: The 2007 Conference on Intercollegiate Athletics and Higher Education in America an "inaugural, academic, juried conference...intended to summarize scholarships from the last several years on the context of intercollegiate athletics in higher education in America and role of sport in American culture."
I found out about the conference when I was contacted by an NCAA staff member and asked to serve on the conference abstract review board. As the months went by, and after submitting 7 abstracts and previously published papers (per the conference guidelines), I contacted the NCAA to determine the status of the conference and find out when I could expect to receive abstracts or papers to review. It seemed to me time was running out. That's when I found out the conference had been postponed. No formal announcement, no press release on the NCAA website, nothing. And more interestingly, no abstracts or papers to review.
That's when I made a few phone calls and found out that another reviewer had also not received any material to review. After a few more phone calls and a few emails back and forth with NCAA staffers, I was told the conference had been "postponed" because of a lack of interest on the part of scholars. Unable to determine how many scholars had submitted papers, I began contacting several individuals and kept hearing back that they, too, had submitted to the conference. But, evidently there was not enough interest...
Then a story appeared--citing a lack of quality papers, Dr. Brand postponed the conference and the "spin" began:
"...when he looked at the papers — 'and having been in the academy for 40 years, I think I can tell the difference between a good paper and something that's not high quality,' Brand said — he saw too many of the latter and too few of the former, he said."
"That's when the association decided to start from scratch, and to convene 'the leading scholars in their fields, from sociology, history, literature, economics, business,' to plan the meeting and, ultimately, referee the papers. Brand says he is confident that the 2008 conference will produce important work that measures up to material published in scholarly journals."
"The NCAA's announcement of the new event said its theme would
be “College Sports: A Legitimate Focus for Scholarly Inquiry,� and noted that it would feature “invited scholars of international repute� — suggesting that submissions would not be welcomed."
Okay, so what's the problem? The NCAA and Dr. Brand didn't like the papers submitted. It's their conference and if they want to take their academic "ball" and go home, so what? A reader may simply say, "What's the big deal?"
But, as an academic I think it's relevant to point out several things that shed light on the NCAA organizational and institutional cultures:
1) I was asked by the “nice people� in charge of the postponed NCAA conference to serve on the conference's review committee, but never received a single submission (inferior or otherwise) to review.
2) Since the only faculty members identified in the article as submitting papers or abstracts to the postponed conference are Drake Group members (who are often identified by Dr. Brand as ill-informed faculty who have their "facts" wrong), Dr. Brand's comments indirectly and very subtly disparage the scholarship of such scholars,while not mentioning anyone by name, and actually not commenting on any specific work. Maybe all the deficient scholarship was submitted by NCAA Faculty Athletic Representatives? Of course, we can't say any such thing, since the process is a blind-review one. (Unless Dr. Brand saw the names of the authors.) Dr. Brand's comments are similar to those found in a non-apologetic apology that actually denigrates those who criticize the individual.
3) I volunteered (as I have on two previous occasions) to help the NCAA in planning their next conference.
Now the NCAA has announced that in 2008 they will convene a "Scholarly Colloquium on College Sports"
According to the Chronicle of Higher Education "The gathering next year will feature four invited speakers who will be asked to talk about what kind of research is needed — for example, a closer look at athlete or fan behavior, or whether sports has a negative effect on certain minority groups — and speculate on the consequences further study might have on NCAA policies."
As Brad Schultz on Journal of Sports Media noted: "The NCAA's announcement of the new event said its theme would be “College Sports: A Legitimate Focus for Scholarly Inquiry,� and noted that it would feature “invited scholars of international repute� — suggesting that submissions would not be welcomed."
It seems pretty apparent to this "ill-informed" faculty member that the NCAA (or at least Dr. Brand) has little interest in a peer-reviewed academic conference. The NCAA tried that and they didn't like the submissions. Instead of rejecting individual submissions, or allowing "their" invited reviewers to perform their reviewer function, Dr. Brand unilaterally canceled the conference. He did not postpone the conference, he changed the format, the purpose, and the participants. In addition the NCAA and it's representatives and spokespeople disparaged the academic integrity of all those who submitted to the aborted conference, noting:
"We're hoping to get more people in nonkinesiology departments, people who don't do research on sport because it's not front and center in their disciplines, to come out of the academic closet, so to speak, and study sport," he said. "College sports have a tremendous impact on our educational institutions, our towns, our budgets. We think the time is right for a more serious look at the subject."
I guess all the jokers and academic imposters who have studied college sport for the last 100 years should be glad that serious "closeted" scholars can come
out and take a more "serious" look at the subject. I'm sure I won't be invited to speak in Nashville next January, but hopefully I can find other less rigorous venues for my scholarship.
Recently Dr. Brand has taken the tact of dismissing any critics of the NCAA and/or college sports by utilizing the off-hand comment that "They have their facts wrong." Recent peer-reviewed research discussing the lack of educational content in 2006 NCAA Division I men's basketball broadcasts was referred to as "defying logic." However, the accuracy of the study's results was not questioned. Such tactics are all well and good, and expected as part of the NCAA's lobbying efforts, but now the NCAA has gotten into the academic and scholarly-inquiry business. The NCAA's proposed colloquium is even entitled "Scholarly," just in case people forget that it is intended to be scholarly. It's all part of the NCAA's branding efforts (pun intended).
The NCAA, in my humble professional opinion, is not satisfied with sponsoring athletic championships, and monopolizing college sports. It seems determined to also purchase any and all critical academic discussion surrounding intercollegiate athletics. I am struck by the similarity of this situation to the NCAA's tactics in its recent purchase of the NIT.
To purchase as much of the dialogue as possible, the NCAA will sponsor a BCS-like colloquium with only four scholars speaking as representatives for all. I have not doubt the NCAA will publicize this controlled scrimmage as an example of its commitment to its educational mission.
Note:
Next time I'll post information about the founding of the College Sport Research Institute (CSRI), a new journal entitled: Journal of Issues in Intercollegiate Athletics (JIIA), and next year's 3rd Annual "Issues in College Sport" colloquium and conference to be held April 16-19, 2008 on the campus of The University of Memphis.
FYI: Dr. Brand will be invited to serve on the institute's advisory board, and also contribute as a member of the journal's editorial review board. In addition, he will be asked to be a colloquium panelist and to submit an abstract or paper to be "blind peer-reviewed" for the conference.
It's the least one would expect as part of a legitimate scholarly inquiry into college sports.
Posted By : Richard Southall
The Importance of Which Team Drafts You
Message posted on : 2007-04-24 - 12:12:00
We have an article up on The Situationist today entitled "The Situation of the NBA Draft." It's premised on the idea that many, if not most, players selected in the NBA Draft will succeed or fail largely due to the situation of the team that drafts them. In other words, some players will find themselves in the right environment in terms of teammates and coaches and fans, while others will wind up playing in the wrong offense, with the wrong coach, in the wrong city. These situational factors can be enormously influential in whether the player succeeds or fails in the NBA.
However, when we evaluate these players, we usually focus on presumed, but often immeasurable and perhaps misunderstood qualities, like "how hard they work" or whether they have the "drive to succeed" (whatever that actually means). In other words, we tend to overlook the
situation, and focus on the disposition, and that may not be the best way to judge players.
This same point is true of most jobs, of course. Who we work with, and who we work for, have enormous influence on how well we work. Yet often the situation of our employment (and of our relationships and pretty much anything we do) is overlooked by others. Indeed, the only way to really appreciate the situation of others is to be in it.
We hope you check out our analysis.
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2007-04-23 - 15:48:00
New this week:Vanessa Bovo, Comment, Keeping the public in the public use requirement: acquisition of land by eminent domain for new sports stadiums should require more than hypothetical jobs and tax revenues to meet the public use requirement, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 289 (2006)
Thomas Brophy, Casenote, Icing the competition: the nonstatutory labor exemption and the conspiracy between the NHL and OHL, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2007)
Meri J. Van Blarcom-Gupko, Should NASCAR be allowed to choose the tracks at which its series' races are run? 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 193 (2006)
Parker B. Parker, Jr., Take me out to the metaphor, 5 PIERCE LAW REVIEW 313 (2007)
Oscar N. Pinkas, Comment, The wisdom of Major League Baseball: why free agency does not spell doom for European football, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 257 (2006)
Vittorio Vella, Comment, Swing and a foul tip: what Major League Baseball needs to do to keep its small market franchises alive at the arbitration plate, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 317 (2006)
Posted By : Geoffrey Rapp
Tanking: The Fan's Perspective
Message posted on : 2007-04-21 - 11:04:00
Will Leitch, the editor of Deadspin, has an interesting op-ed in the New York Times wondering how fans can be so accepting of their teams tanking. This is a different perspective on the issue of tanking that Michael considered here and here.
Leitch's point is that being a fan (as opposed to being the team's GM) is a game-by-game, short-term consideration, rather than a long-term, big-picture commitment. You want the team to win this game once it begins; you are not thinking about how a loss may help you three months down the road.
Money line:
"Because I am a fan. And if a fan doesn't root for his team to win, who is he, exactly?"
Posted By : Howard Wasserman
Oral Agruments in TSSAA v. Brentwood Academy (Updated)
Message posted on : 2007-04-19 - 17:36:00
For those interested, this morning's oral argument in TSSAA v. Brentwood Academy is available here (HT: SCOTUSBlog).
I will provide some comments and thoughts once I have a chance to read it, probably tomorrow.
UPDATE and MOVED TO TOP
Having read the oral argument transcript, it appears one of my earlier predictions proved false: No sports puns or analogies from anyone. I stand by my other prediction, however: the Supreme Court will reverse the Sixth Circuit.
Some random thoughts:
* The TSSAA focused the First Amendment argument on its interests in preventing the exploitation of young student-athletes and on ensuring that athletics do not take precedence over academics. The lawyer never mentioned the interest in maintaining a level playng field, although the Chief tried to bring her in that direction at one point, by suggesting that public schools cannot recruit while private schools can.
* Several justices, including the Chief and Justice Kennedy, seemed inclined to accept that the recruiting rule should be subject to the First Amendment analysis reserved for government-employee and government-contractor cases, a less-burdensome analysis for the government to clear. There also was a lot of discussion of the voluntary nature of TSSAA membership and the fact that there are other, smaller athletic associations in the state.
* Several Justices seemed concerned with the possible breadth of the recruiting ban. They pushed both the TSSAA and the attorney for the United States about whether the rule would apply to all contacts between a school and prospective student--such as a brochure that mentioned Brentwood's stellar football program. Both the TSSAA and the United States pulled back from suggesting that the rule could apply that broadly. This allowed them to argue that Brentwood had other ways to get its message out, an important First Amendment consideration. There also was an interesting exchange between the lawyer for the TSSAA and the Chief about whether a coach could be penalized for criticizing game officials; the lawyer suggested that might not be within the Association's power.
* Brentwood's lawyer got hit hard about the fact that the speech at issue was more than general expression to the public at large about the school and the football program. This was recruiting; it was targeted at student-athletes and signed "Your Coach."
* Justice Breyer was extremely skeptical of Brentwood's procedural due process claim, in part because Brentwood was not clear about the precise nature of the claim. To the extent the problem was that a TSSAA investigator had ex parte contact with the Board, Breyer pointed out this happens every day in federal administrative agencies and that Brentwood's argument would invalidate the Administrative Procedures Act (Breyer is a former Ad Law scholar). To the extent the problem was lack of an opportunity to present certain evidence, it is not clear that opportunity mattered.
So, I still go with a reversal of the Sixth Circuit, probably unanimous. The rub in the case(and perhaps the source of divisions in the Court) may be what type of First Amendment analysis the Court adopts--whether it treats this as the equivalent of a government-employee speech case, which could have far-reaching effects.
Posted By : Howard Wasserman
How Many Wheelchair Seats Does the Big House Need?
Message posted on : 2007-04-18 - 20:55:00
News broke this week of a lawsuit filed by the Michigan Paralyzed Veterans of America under the Americans with Disabilities Act (ADA) against the University of Michigan. The suit concerns the number of seats that need to be wheelchair accessible in the stadium, which to this point has been exempt from the 1990 ADA because it was constructed decades before the statute was enacted. With the University poised to launch a major renovation of the 100,000+ seat stadium, plaintiffs argue that the stadium must now comply with the ADA. Under the ADA, public accomodations, like stadiums, must include wheelchair seating. The U.S. Department of Justice has indicated that 1% of stadium seating must be wheelchair accessible to comply with the ADA.
The plaintiffs and U of M differ, however, as to whether that 1% figure applies to the new seats to be added as part of the renovation, or to all the seats in the post-renovation stadium. Although more than 1% of the new seats will be wheelchair accessible (increasing the total number of wheelchair accesible seats from 90 to 282), according to the campus student newpaper, the Michigan Daily,
Stadium-wide compliance would include making 1 percent of all seating handicap accessible and offering a variety of seating locations and ticket prices for disabled visitors. For the officially 107,501-seat stadium, that means there must be at least 1,000 handicap accessible seats.
In addition, the plaintiffs object to the lack of "companion" seats (for the family and friends of a disable fan) adjacent to wheelchair seats.
The plaintiffs in this case are represented by Richard Bernstein, a blind Michigan lawyer (and U of M alumnus) who himself successfully sued Northwestern Law School over its use of the LSAT, which did not offer Braille exam.
The law is likely on the plaintiffs' side. The DoJ "1%" interpretation is entitled to judicial deference. Not only are wheelchair patrons entitled to a certain proportion of seats; as established in a series of recent cases involving stadium seating at movie theaters, they must also be provided with equivalent lines of sight.
It is nevertheless interesting to speculate about exactly how many "accessible" seats the stadium should have. Currently, only 53 Michigan ticket holders request wheelchair seating. The difference between that number, and the number of seats requested by the plaintiffs, is striking.
Michigan's is of course not an ordinary arena, in the sense that games at the Big House are sold out, and there is a multi-year long waiting list to obtain season tickets. It is not unreasonable to think that the number of available handicapped accessible seats could affect the interest of disabled fans in making the multi-year donation commitments necessary to preserve a place on the waiting list. In an ideal world, stadiums would be built with some sort of modular seating that could
accomodate the changing needs of fans. As new disabled patrons obtain seats, or as current season ticket holders age and develop disabilities that require wheelchairs, permanent seats could be relocated or adjusted to increase wheelchair-accesible space. Unfortunately, our engineering capabilities may not yet allow such an approach in a cost effective manner that wouldn't at some point result in a pile of chairs tossed onto the field.
Still, I'm not sure that lawyer Bernstein's strategy of comparing Michigan's stadium to recent renovations at OSU and Notre Dame--"Ohio State University and the University of Notre Dame have recently undergone significant renovations compliant with ADA guidelines"--is likely to convince many in the Wolverine state to follow suit.
Posted By : Geoffrey Rapp
Does the NFL's New Personal Conduct Policy Afford the Commissioner Too Much Discretion?
Message posted on : 2007-04-18 - 09:45:00
Last Friday, I participated on a panel at DePaul University College of Law on the topic of regulating off-field misconduct. We had a lively discussion and debate regarding the timely issue of NFL commissioner Roger Goodell's one year suspension of Adam "Pacman" Jones. I raised a number of questions that should be considered by the players regarding this particular suspension, but more importantly, any future disciplinary actions taken by the commissioner under the NFL's new personal conduct policy.
1. Is it connected to the NFL's business?
Internal league discipline of players is warranted in situations that directly influence competition or affect the business side of the game. Examples of such situations would include gambling on the sport, use of performance enhancing drugs, or when a player unloads a slew of racial and ethnic slurs directed at New Yorkers, Mets fans and one of his teammates. But how does a fight in a nightclub (or any other violent behavior off the field) arise to the level of affecting the "integrity of the game"? And if it affects the "business side" of the NFL, how so? Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product? The justification for a "get tough on crime" policy seems to be that the owners, coaches and a majority of the players all agree with the commissioner when asked about it -- Well, of course they do! Are they really going to publicly say, "No, I think players getting arrested is none of our business"?
2. Should discipline be imposed without a conviction?
Are player arrests on the rise in the NFL? The advent of 24 hour news from multiple sources in which we are told 100 times per day that Pacman was arrested definitely makes it appear on the surface to be a growing problem in the NFL. But where's the data to suggest that it is. Recall a sampling of some of the headlines back in 2000: Ray Lewis (murder charge), Rae Carruth (charged with murder in the shooting death of his pregnant girlfriend), Mark Chmura (sexual assault charge) and Peter Warrick (charged with grand theft). League officials that year also reported that the number of players arrested for violent crimes actually dropped from 38 players in 1997 to 26 in 1999.
Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.
Off-field misconduct is laden with factual issues, which distinguishes it from on-field misconduct in which there are no factual issues because there are multiple camera angles of the behavior captured on videotape. Thus, in situations involving off-field behavior, the commissioner performs his own investigation and formulates an opinion. But the commissioner has no subpoena power and can't force witnesses to testify, and all of the safeguards afforded the accused in criminal proceedings are lacking (e.g. cross-examination of witnesses). Finally, and most importantly, a player disciplined prior to a conviction can be prejudiced in the criminal proceeding because prosecutors may subpoena the results of internal league investigations and use them against the player at trial.
3. Does the appeal process ensure fair and consistent disciplinary action?
Pacman has publicly stated that he will be appealing the suspension.
The NFL is unique from the other sports in one critical respect: NFL commissioner discipline for off-field misconduct is not subject to review by a neutral arbitrator. Instead, the player's sole right of appeal is to the commissioner -- in other words, no right of appeal.
In the other sports, the arbitrator reviews commissioner disciplinary action using a "just cause" standard. "Just cause" is evaluated according to the common law of the workplace. Generally, this means that the league should follow progressive discipline in response to player misconduct, imposing increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player. It's arbitrary to impose an overly aggressive disciplinary action upon an individual player with an ulterior motive of sending a message to all players that "this is not to be tolerated". Arbitrators reduce suspensions when the suspension is unduly harsh or not in line with established precedent involving similar situations. Unfortunately for Pacman, and any other player subject to league discipline, he will never have that opportunity.
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2007-04-16 - 13:03:00
New this week:Brett Gibbs, Note, Antitrust and sports league franchise relocation: bringing Raiders I into the modern era of antitrust law, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 217 (2007)
Paul C. McCaffrey, Note, Playing fair: why the United States Anti-Doping Agency's performance-enhanced adjudications should be treated as state action, 22 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 645 (2006)
Jason Shane, Note, Who owns a home run? The battle of the use of player performance statistics by fantasy sports websites, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 241 (2007)
Posted By : Geoffrey Rapp
The Constitutionality of Regulating High School Sports
Message posted on : 2007-04-15 - 20:13:00
This Wednesday, the Supreme Court of the United States will hear oral argument in Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy.
Brentwood Academy, a private school in Tennessee and a TSSAA member, was sanctioned for violating the prohibition on recruiting student-athletes through the exertion of "undue influence." Brentwood's football coach sent a letter to twelve eighth graders who planned to attend Brentwood the following fall; the letter informed them that they were eligible to participate in spring practice and, although they did not have to, it would be to their "advantage" to do so. Brentwood sued, arguing that the enforcement of the recruiting rule against it violated the school's free-speech and due process rights.
This is the second trip to the Court for these parties. In 2001, the Court held that the TSSAA--which is not an official state agency, but a private membership organization comprised of public and private schools whose regulatory authority over interscholastic athletics long has been recognized by the Tennessee State School Board--is a state actor and thus subject to constitutional limitations. The Court now will consider whether the TSSAA's rules against recruiting student-athletes are constitutionally valid.
The court of appeals held that the anti-recruiting rule was unconstitutional as applied to Brentwood for two reasons. First, the letter to the prospective student-athletes did not impose undue or unfair influence on them, because neither the students nor their parents felt imposed upon and, in fact, welcomed, the information from the school. Second, TSSAA's desire to ensure a level competitive athletic playing field (by preventing some schools, particularly private schools, from stockpiling talent by enticing, pressuring, or convincing talented athletes to attend) was not a substantial governmental interest that justifies limitations on free expression such as the anti-recruiting rule.
The latter point is potentially far-reaching, since organizations such as the TSSAA (or, for that matter, the NCAA, which filed an amicus curiae brief in support of the TSSAA) exist specifically to ensure competitive balance in interscholastic athletics. If that interest does not justify some limitations on expression (such as recruiting contacts between schools and student-athletes), the organization no longer can perform its regulatory function, at least with respect to private schools.
The other issue floating here is the argument (emphasized in the NCAA's amicus brief) that the Court should overturn its earlier ruling that the TSSAA is a state actor (which would, of course, eliminate the need to resolve some tricky First Amendment issues). The 2001 decision was 5-4 and two seats on the Court have changed since then, including the replacement of Justice O'Connor (who joined the majority) with Justice Alito.
I wrote a short essay on the case for the ABA's Preview of United States Supreme Court Cases, which I hope to be able upload prior to Wednesday. My quick prediction is that the Court will not overturn its earlier state-action ruling, but that it will reverse the lower courts; I do not see the Court recognizing, in essence, a right of schools to recruit student-athletes.
And I predict a lot of sports puns, metaphors, analogies, and stories in the argument and the opinion; the parties and the Court cannot help themselves when sports are at issue.
UPDATE # 1: I neglected to mention
that Michael discussed this case when the Sixth Circuit's decision came down last May. I largely agree with his analysis, particularly the notions that letters such as the one from Brentwood's coach obviously affected the twelve student-athletes (all twelve--surprise, surprise--showed up for spring practice) and that if such letters cannot be restricted, then high school sports becomes the unregulable wild west. All the more reason to believe the Sixth Circuit opinion will not stand.
Posted By : Howard Wasserman
Ryan Gomes and "The Hunt for a High Draft Pick"
Message posted on : 2007-04-14 - 22:21:00
Earlier this week, I published a couple of posts on NBA teams deliberately losing games in order to secure a better lottery position ("Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?" & "The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant?"). The readers' comments to the those posts are fantastic, as are reactions on other websites and blogs. My genuine thanks to all those who commented and who linked to the post, and particularly to ESPN's Bill Simmons and Henry Abbott and Sports Illustrated's Kelly Dwyer.
But despite what most would say is fairly strong evidence of NBA teams tanking, some are skeptical that players would ever agree to a scheme where games are purposefully lost. And there are some compelling reasons for that skepticism.
First off, aren't players prideful about competing and winning games? And even if they aren't--let's say they are completely selfish--wouldn't they care about their stats for their purposes of future contract and endorsement opportunities? So why would a player play worse to help a team lose? Or why would he not play in games, or parts of games, due to what are really phantom injuries, thus potentially making him appear less durable and less tough (which again would seem to jeopardize future contract and endorsement opportunities)?
Those arguments certainly have some logic to them. But to counter them, I bring you Boston Celtics forward Ryan Gomes, a graduate of Providence College and the Celtics' second round pick in the 2005 NBA draft. Gomes is one of the Celtics better players, averaging 12 points and 6 rebounds a game, making him the Celtics 4th leading scorer and 3rd best rebounder. Of interest to this topic, Gomes and starting point guard Rajon Rondo were curiously benched for the fourth quarter of the Celtics home game against the Milwaukee Bucks last night--a game the Celtics lost by two points, thereby securing the second worst record in the NBA this season, and preventing the Bucks, holders of the third worst record, from "overtaking" them for that honor/dishonor.
When asked why he didn't play in the fourth quarter, Gomes surprisingly admitted the obvious:
"I probably (would have played), but since we were in the hunt for a high draft pick, of course things are different. I understand that. Hopefully things get better. Now that we clinched at least having the second-most balls in the lottery, the last three
games we'll see what happens. We'll see if we can go out and finish some games."
The "hunt for a high draft pick." Gotta love this game.
Posted By : Michael McCann
Harvard Law School Panel on NBA Regulation of Player Expression
Message posted on : 2007-04-13 - 11:55:00
Next Wednesday, April 18th, Harvard Law School's Committee on Sports and Entertainment Law will host a panel entitled On & Off the Court: The NBA's Regulation of Player Expression. The panel will discuss the new NBA age limit, new technical foul rules, the dress code, and other issues that relate to life as an NBA player and life as a prospective NBA player.
The panel will begin at 7:30 p.m. in Pound 107 (directions to HLS/campus map). The event is open to the public.
I am honored to be a panelist, particularly since this subject is near and dear to my heart and particularly since each of the other panelists brings with him extraordinary experiences and insights on NBA player issues (just take a look below at who the other panelists are--it's an incredible group). Here is the official flyer on what should be an outstanding event:
Panelists
Hal Biagas
Deputy Counsel of the National Basketball Player's Association (NBPA)
Maverick Carter
LeBron James' representative and CEO of LRMR Marketing
Michael McCann
Sports Law Professor, Scholar, and Litigator
Kurt Schoeppler
Business Manager of Vince Carter and LeBron James
Jason Whitlock
Columnist of the Kansas City Star and AOL Sports
Moderator
Peter Carfagna
Lecturer on Law at Harvard Law School and former Chief Legal Counsel at IMG
If you are in the Boston area next Wednesday, I hope that you are able to attend what should be a fantastic discussion on issues concerning player autonomy in the NBA, and it would be great to meet you and any reader of this blog. For more information about the panel, please e-mail Mike Menitove at mmenitove@law.harvard.edu.
Posted By : Michael McCann
What Don Imus Tells Us About Georgetown Basketball and the NBA
Message posted on : 2007-04-12 - 18:21:00
Earlier today, Jon Hanson and I published a lengthy article on The Situationist entitled "Hoyas, Hos, & Gangstas."
We argue that the underlying prejudice found in Don Imus' comments about the Rutgers' womens basketball team can be found in other sports contexts, including in how we talk about male African-American basketball players, such as Georgetown University basketball players, and in how we regulate the behavior of basketball players, such as the NBA's recent attempts to make its players seem more "likeable" to mainstream America. However, unlike with the universal outrage we all expressed at Imus for his comments, these instances occurr in ways that we take for granted, find unoffensive, or even support. Jon and I try to examine why that might be the case.
We hope you read our article on The Situationist (and a thank you to Henry Abbot for linking to it on ESPN.com).
Posted By : Michael McCann
Scarlet Devils and Blue Knights
Message posted on : 2007-04-11 - 19:06:00
What makes Sports Law so interesting is how society plays out its neuroses through the microcosm of sports. Just look at the controversies involving two college sports teams: the Rutgers Women Hoopsters and the Duke Lacrossers.
When the Duke story first broke, the liberal media was quick to assume their guilt as an inevitable byproduct of privilege and indulgence. These were rich white spoiled jocks, the story went, and the law and its protectors should deal with their behavior in the harshest terms. We all learned eventually the facts were quite different and the real villain turned out to be the Arm of the Law who thought these sportsmen were an easy mark who could advance his career. The case has now been dismissed.
Next we have Mr. Imus who didn't think at all because it was so easy to make a sophomoric racist joke about a predominantly African-American team.
Neither attack proved so easy and may likely end the careers of the attackers.
What have we learned?
First, when real life events enter the sports bubble, they are typically blown out of proportion.
Second, and more importantly, sportsmen and women are not all of a type. While they may work wondrously as a team during the game, off the field they are individuals, often as different from one another and from the stereotype as can be imagined. Both the Duke men and Rutgers women turned out to be accomplished and articulate, deserving of dignity not ridicule.
Most athletes, even the Pros rich in income and adulation, don't want to be either made examples of or coddled; nor do they deserve such disparate treatment when they are out of the park.
Posted By : Alan C. Milstein
Fordham University School of Law Symposium on Sports Law
Message posted on : 2007-04-11 - 15:47:00
Next Friday, April 20, the Fordham Sports Law Forum will be hosting the 11th Annual Fordham Sports Law Symposium. The event, which will be held in Fordham University School of Law's McNally Amphitheatre (which is located on Fordham's Lincoln City Campus), has a great lineup of speakers and topics. It also offers 6 New York CLE credits. Here is the schedule:
9:30 am – Panel I: Sports Re-Broadcasting and Exclusivity Rights in the Changing Media Landscape. This panel will discuss the development and impact of new media platforms and devices like YouTube, Slingbox, satellite radio and MLB.tv on the sports world.
Moderator: Anthony J. Dreyer, Skadden, Arps, Slate, Meagher & Flom, LLP
Panelists:
Mark Conrad, Associate Professor of Business Law, Fordham University
Mark Loughney, VP of Sales & Strategy Research, ABC
Michael Mellis, Senior VP & General Counsel, Major League Baseball Advanced Media
David Proper, Senior Counsel, National Football League
11:10 am – Panel II: International Player Transfer Systems and Related Immigration Issues. This panel will focus on the legal regimes in place for bringing international players, such as Dirk Nowitzki, Jaromir Jagr and Hideki Matsui, to the US. The panel will also discuss the relevant immigration law issues with regards to the growing influx of foreign players to professional sports leagues.
Moderator: Jennifer Gordon, Professor, Fordham University School of Law
Panelists:
Jean Afterman, Assistant General Manager, New York Yankees
Lisa D'Avolio, Skadden, Arps, Meagher & Flom, LLP
Bill Daly, Deputy Commissioner, National Hockey League
Sunil Gulati, President, US Soccer
1:45 pm – Keynote Address: Tim Brosnan, Executive VP of Business, Major League Baseball “MLB's Extra Innings Package�
2:30 pm – Panel III: Potential Criminal and Civil Liability for Athletes' Conduct During the Ordinary Course of Game Play. This panel will discuss past cases involving players such as Marty McSorely, Todd Bertuzzi and Albert Haynesworth, address the application of criminal and civil law in both the US and Canada and debate the extent to which athletes should be liable for their actions during game play.
Moderator: Anastasia Danias, Counsel, National Football League
Panelists:
Tim Danson, Danson, Recht & Voudouris
Paul Kelly, Kelly, Libby & Hoopes
Roy Reichbach, General Counsel, New York Islanders
Michael Weiner, General Counsel, Major League Baseball Players' Association
To register, click here. You may also contact the symposium's co-chairs, Rebecca Ronzio at rronzio@gmail.com or Jonathan Kotler at jak015@aol.com.
Posted By : Michael McCann
New Sports Media v. Old Sports Media
Message posted on : 2007-04-09 - 15:10:00
There is ongoing tension between the new media and the old--between bloggers and mainstream media ("MSM" in the parlance). That tension is particularly noticeable as to sports media. Bloggers make a living (or at least a nice avocation) by criticizing (often justifiably, in my view) announcers such as Billy Packer, Dick Vitale, and Joe Buck. The old-guard regularly derides the unnamed "bloggers" out there on the Internets, who level criticism at them and at the athletes and coaches, in their view without any knowledge or basis for those criticisms.
That tension came to a head last Thursday when Colin Cowherd of ESPN Radio encouraged his listeners, on the air, to launch a "Denial-of-Service" ("DNS" or "DoS") attack on the sports blog The Big Lead. As Professor Susan Brenner explains, in a DNS attack, users flood a network so as to consume scarce resources or disrupt physical components of the network. The purpose of a DNS attack is to prevent the web-site operator from providing information to those who wish to visit the site for that purpose. Here, users flooded the web site with so many hits that the server became overloaded and the site shut down from Thursday morning until sometime on Saturday. Good summaries here and here. A good explanation of DNS attacks is here.
The incident unified most of the major sports blogs and their readers in condemnation of Cowherd and ESPN (a list of, and link to, blog commentary can be found here and here -- some of it less than politic.). The general view is that Cowherd crossed an ethical line, both for journalism and for the internet. ESPN's new ombudsman, Le Anne Schreiber, discussed ESPN's adoption of a (new) "zero-tolerance" policy for personalities using the airwaves to attack businesses in this way. This says nothing about whether ESPN will sanction Cowherd for an act in which he obviously took great delight, as when he gloated about the DNS attack sending bloggers the message "just don't screw with us." Unfortunately, there was no policy against what he did at the time he did it. Deadspin has thoughts on Schreiber's column here. The Big Lead has its thoughts on the whole thing here.
Some of the commentary also suggested or wondered whether what Cowherd did was unlawful or whether The Big Lead should pursue legal action against Cowherd and/or ESPN. The Big lead's editors stated they were surprised by how often commenters suggested suing and they are "looking into it."
So it is worht considering whether there is any legal there there. That, of course, is why this site exists. For starters, thanks to my colleagues Hannibal Travis and Andre Smith, both of whom know more about the Internet, computer law, and telecommunications law than I do and who provided thoughts, guidance, and initial research suggestions for me.
First, was the DNS attack unlawful?
The conduct,
standing alone, may not have been. Cowherd's listeners simply visited the blog (a lawful activity) all at the same time. The question is whether Cowherd's (and his listeners') apparent intent to disrupt the blog's operation (as opposed to reading what was on the blog) renders that conduct criminal or tortious. And if so, what legal rules does it violate?
For purposes of applying general tort law, the question is what a DNS attack most resembles in the real (non-electronic) world. The application of law to the electronic world still (for better or worse) still requires such analogies.
At one end, we might compare this to a boycott or protest of The Big Lead--a large number of people refusing to read or patronize a business, perhaps by picketing or protesting on the sidewalks outside the store and encouraging others to respect the boycott; this have the effect of deterring or preventing others from patronizing the business. Perfectly legal (and constitutionally protected), although I am not sure the analogy works here.
At the other end, Professor Brenner argues that a DNS attack is vandalism, because it damages the victimized web site's functionality, impairing its ability to provide the services or information it offers to the public." Functionality, she argues, is an essential and integral element of a site operator's property. It is a "nuance" of web-based property that must be taken into account in understanding property and property rights on-line. It is not enough to have a web site up--a blog must be functional and accessible to those who want to see the information posted. So destroying functionality is equivalent to physical destruction of or interference with physical property or the stuff on display within the physical proper. Obviously tortious.
Somewhere in the middle are other analogies I have been turning over that may or may not be tortious in the real world. Maybe this DNS attack is comparable to an organized effort to buy up every copy of a magazine from every newsstand so no one in the general public can read it. Or maybe it is comparable to gathering an enormous group of people and going into a bookstore (off public property and onto the private property) to stand around and browse but not buy anything, just to so overcrowd the place that no one who does want to browse or buy can do so. Not sure which side of the line these fall on.
One last point on framing the appropriate analogue: Much depends on how the DNS attack was carried out. Was it in fact the lawful act of many Cowherd listeners accessing the site at once? Or was it done by a small number of individuals using computer programs to constantly reload the site (apparently as often as once per second)? If the latter, it begins to look more like so-called "cyber-vandalism" and less like a large number of people lawfully accessing the site.
A potentially applicable internet-specific source of law is a federal law prohibting fraud in connection with computers. The law prohibits "knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer." 18 U.S.C. s. 1030(a)(5)(A)(i). A protected computer is one "used in interstate or foreign commerce or communication." 18 U.S.C. s. 1030(e)(2)(B). And the statute allows the injured party to sue for damages. 18 U.S.C. s. 1030(g). It seems that this should apply to the circumstances here. There was intentional damage, the computer is in interstate commerce (the blog's server at the time was in Romania), and there seems to have been intent.
Second, assuming the attack on web site is unlawful, what is Cowherd's liability (as opposed to the liability of the individuals who took part in the DNS attack)?
The likely legal theory is that
Cowherd incited his listeners to engage in the atatck. Under the First Amendment, speech rises to the level of unprotected incitement only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This includes inciting others to engage in tortious as well as criminal behavior.
This traditionally is a very high hurdle. The theory of the First Amendment is that we punish those who engage in unlawful conduct, not those who speak about it, especially those who are speaking to an unseen mass audience. Did Cowherd intend for his listeners to do this and is it likely that they would have? The intent part seems present, especially since (according to ombudsman Schreiber's column, Cowher proudly announced that they had crashed the site in 90 seconds, then told them to "knock it out again, just for fun." But how likely was it that people would act on his words? Cowherd might try to argue, for example, that he was just using rhetorical hyperbole and that he did not expect anyone to take him seriously (even if he hoped they would).
The other theory as to Cowherd would be conspiracy to crash this site, but this is much more difficult. Conspiracy requires an agreement among the speakers and actors and there was no such agreement between Cowherd and his listeners.
Third, is ESPN potentially in trouble with the Federal Communications Commission?
The FCC can sanction a broadcast licensee where on-air personalities incite listeners to engage in unlawful conduct, since it calls into question the licensee's basical qualifications to hold a license. But in (stated) light of First Amendment concerns, the FCC narrowly interprets and sparingly wields this power. In 2004, the Commission refused to take enforcement action against several Clear Channel subsidiaries that broadcast hosts and callers urging drivers hit bicyclists or run bicyclists off the road or throw bottles at them as they drove by. The FCC typically declines to undertake enforcement unless a court first determines that some unlawful incitement, as defined in Brandenburg, occurred.
So I am not sure where that leaves us--but in this forum, I do not have to decide anything. Depending on what The Big Lead does, this could be a test case of how sports blog and mainstream sports media will interact with one another and with the law.
Posted By : Howard Wasserman
Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?
Message posted on : 2007-04-09 - 14:58:00
In response to my post last Thursday on NBA teams purposefully losing games to increase their odds of drafting Greg Oden or Kevin Durant (a post that generated some wonderful reader comments and posts on other websites), George Mason University law professor and Volokh Conspiracy contributor Todd Zywicki asked me the following question:
Why do you think it is that the "tanking" concern seems to arise uniquely with respect to the NBA? There seems to be no concern about tanking in the NFL for instance and it is not uncommon to see a team spring an upset the last week of the season and knock them down a few spots in the draft.
One possibility is that the top players in the NBA draft are more "impact" players. But that might explain no tanking in baseball, but not the NFL.
Another possibility might be that the number of close substitutes is deeper in the NFL, but that doesn't seem clear either.
It is just odd--the NBA seems to be the one sport where this concern arises repeatedly over time. Indeed, that's why the NBA adopted the lottery--yet there are still allegations of tanking.
Any thoughts?
I e-mailed him back the following five possible explanations, which I have edited to incorporate his insight:
1) Impact Player & Lack of Close Substitutes explanation: It seems that there are certain drafts where there is at least one player who many believe projects as a future NBA superstar. With the caveat of complete subjectivity, I recall the last 10 drafts as follows in terms of players who, at the time, projected as superstars, followed by a significant drop-off in expectations:
2006: weak draft, no superstar projections
2005: weak draft, no superstar projections
2004: Dwight Howard and Emeka Okafor, and then a big drop off
2003: Lebron James, Darko Milic, Carmelo Anthony, drop off (I don't remember Dwayne Wade, who went #5, projecting as a future superstar).
2002: Yao Ming, drop off
2001: Kwame Brown, Tyson Chandler, Pau Gasol, Eddy Curry, drop off [maybe no superstar projections here?]
2000: weak draft, no superstar projections
1999: Elton Brand, Steve Francis, Baron Davis, Lamar Odom, drop off
1998: weak draft, no superstar projections
1997: Tim Duncan, drop off
But Professor Zywicki raises a great point: the NFL draft is just like the NBA Draft in that it often has a few guys at the top who are coveted, followed by everyone else, and yet allegations of tanking are much less common in the NFL. But his other point about close substitutes in the NFL draft also appears explanatory: there is likely more depth in a typical NFL draft than in a typical NBA Draft, meaning acceptable substitutes to top players in any NFL draft can usually be found throughout the first
round, and sometimes even in the second and third rounds. Also, it strikes me that NFL teams often trade down in the first round, while that doesn't seem to occur nearly as often in the NBA, and that would appear to lend credence to a lack close substitutes in a typical NBA draft.
2) The NBA Is a League for Superstars explanation: One might argue that unlike the NFL and its focus on teams (e.g., the New England Patriots), the NBA is more individualistic and individual players get more attention. I suspect this is in part because we see NBA players' faces
and expressions on the court, while NFL players are largely obscured in their helmets, and because there are only 10 players on an NBA court, while there are 22 on an NFL field. And maybe this also relates to the close substitutes idea and how there are fewer close substitutes in an individualistic NBA, while close substitutes are more possible in a team-based, organic NFL. But this explanation has some flaws, too (look at all the individual attention Peyton Manning gets etc.).
3) One Player Can Change an NBA Team explanation: The Spurs go from 22 wins in the 95-96 season to 56 wins in the 96-97 season after drafting
Tim Duncan [along with getting a healthy David Robinson back].; the Magic go from 21 wins in the 91-92 season to 41 wins in the 92-93 season after drafting
Shaquille O'Neal. This type of rapid, draft-based improvement would seem harder to do in the other sports. Along those lines, if either the Bobcats or Celtics draft Greg Oden, I wouldn't be surprised to see a similar upswing in wins next season. In contrast, it just doesn't seem that one great player will change an NFL team. Sure, Reggie Bush made the Saints better, but there were a lot of other new players who arguably had more of an impact (e.g., Drew Brees, Marques Colston, a healthy Deuce McCallister)
4) The Comparative Gambling Interests explanation: I would hate to think that this is relevant, but if an NFL team throws a game, there would probably be far more outrage than if an NBA team were to do the same. The bookies, gamblers, and Vegas types have too much on the line on every NFL game.
5) Nobody Cares explanation: Not many people follow bad NBA teams, and since each game is only one out of 81, people probably pay much less attention to each NBA game than they do to each of an NFL team's 16 games. Also, the NFL seems to promote their product better (i.e., most NFL games are on Sunday, which for many Americans has seemingly become a day built around NFL football, and there is always the sweet Monday night game to follow; in contrast, NBA games happen every night and there is no real build-up to any one game--this may make it easier for an NBA team to throw a game).
In summary, and as Professor
Zywicki notes, we essentially have two categories of explanations: 1) the incentives are greater to tank in the NBA or 2) the costs of tanking are lower (e.g., either easier to get away with or less outrage if they tank). Even if both factors are small, they seem to push in the same direction.
But are our explanations correct? Are there are other explanations? And does tanking, in fact, occur more often in the NBA, or do we only
see it more often because it is more noticeable?
I think all the possible explanations suggested by the professor are at play here. There certainly is a perception in the NBA that if you can just land that one player, you can completely turn your team around. . . . If tanking is unique to the NBA vis-a-vis the NFL--and I'm not convinced that it is--then it is because winning matters in a more meaningful way in the NFL than in the NBA and because losing NBA teams think that one player can turn their entire franchise around in a way that NFL teams don't.
"Professor Michael McCann of Sports Law Blog had a post on the recurring concern about whether bad NBA teams "tank" late in the season in order to secure a better draft pick. Concern about this phenomenon is what led to the unique "lottery" system in the NBA. I wrote him asking why this concern continually arises in the NBA and not other pro leagues. Michael has written a long and persuasive response to my query . . . In a nutshell, his argument is that the benefits of tanking are higher in the NBA and the costs are lower. Seems persuasive to me . . ."
"Four columns I really enjoyed this week: 4. The Sports Law Blog did a good job of breaking down every possible reason why tanking occurs in the NBA and not other sports. I think it's a little more simple: The NBA season is so damned long, it lends itself to throwing in the towel ... especially if there's a franchise rookie coming out. But I liked all their theories."
New Sports Law Scholarship
Message posted on : 2007-04-09 - 13:02:00
New this week:Eoin Carolan, The new WADA Code and the search for a policy justification for anti-doping rules, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2006)
Salil K. Mehra & T. Joel Zuercher, Striking out “competitive balance� in sports, antitrust, and intellectual property, 21 BERKELEY TECHNOLOGY LAW JOURNAL 1499 (2006)
Scott B. Shaprio, Comment, Who decides institutional choice in determining a performance enhancing drug policy for the NFL, 7 WYOMING LAW REVIEW 183 (2007)
Sharianne Walker & Michael Enz, The impact of professional sports on the local economy, 29 WESTERN NEW ENGLAND LAW REVIEW 149 (2006)
Posted By : Geoffrey Rapp
Harvard Law School Conference on Title IX
Message posted on : 2007-04-08 - 13:12:00
On Friday, April 13, the Harvard Journal of Law and Gender will host a conference entitled "Changing Social Norms? Title IX and Legal Activism." Title IX, of course, refers to Title IX of the Education Amendments of 1972 passed by Congress and signed by President Richard M. Nixon on June 23, 1972. The law requires that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
Title IX has been a frequent topic on this blog and in sports law discussions across the country. There is also an excellent blog, Title IX Blog, devoted to it. Generally speaking, Title IX has been praised for promoting gender equity in sports, helping to reverse long-standing discrimination against female athletes, and, more broadly, counteracting prejudices toward women, which has in turn encouraged more women to play sports. But Title IX has also been
criticized for effectively requiring schools to spend fewer resources on non-profitable men's teams, such as cross country and wrestling, or having to eliminate those teams altogether in order to comply with Title IX's three part test.
The Harvard Law conference will explore how Title IX might be used to combat patterns of sexual harassment found at many schools. It will also consider the broader effects of Title IX on school athletic programs. Panelists will include, among others: Verna Williams (lead counsel on Davis v. Monroe County), Diane Rosenfeld (Harvard Law Lecturer on Law), Nancy Lieberman (former college, Olympic, and professional basketball player and member of the Basketball Hall of Fame) and Coach Roderick Jackson (a pioneer in coaches' rights under Title IX and petitioner in Supreme Court case: Jackson v. Birmingham). For a complete list of speakers and topics, click here.
It should be a great event, and I'm looking forward to reading a recap of it. If you are interested in attending or would like more information, please visit the Harvard Journal of Law & Gender website. If you have any questions, please e-mail either of the conference chairs: Lexie Kuznick at akuznick@law.harvard.edu or Meg Ryan at mryan@law.harvard.edu.
Posted By : Michael McCann
Upcoming Symposiums
Message posted on : 2007-04-06 - 09:20:00
There are two sports law symposiums of significant interest taking place on Friday, April 13th.
The Journal of Sports Law and Contemporary Problems at DePaul University College of Law is hosting its 2007 Spring Symposium. I am delighted to be a guest speaker on two panels addressing challenges in regulating athletes' and coaches' behavior both on and off the field. More information regarding this symposium is here.
University of Missouri-Kansas City School of Law is hosting its Inaugural Sports Law Symposium entitled, "Emerging Legal Issues Affecting Amateur & Professional Sports." This symposium features some prominent sports law experts, and Myles Brand is the luncheon key note speaker. More information regarding this symposium is here.
Posted By : Rick Karcher
The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant?
Message posted on : 2007-04-05 - 20:30:00
Last night, the 23-50 Boston Celtics, holders of the second worst record in the NBA, were set to play the 25-48 Milwaukee Bucks, holders of the third worst record. At first blush, it seemed like an utterly unimportant, uninteresting, end-of-the-season match-up between two of the worst teams in the NBA. Indeed, it was probably one of those games where it's tough to give away your tickets.
But there was something about the match-up that gave it real, even profound, meaning: a deep suspicion that both teams were determined to lose the game to help secure the league's second worst record. Setting aside the merits' of those suspicions--which were detailed on Celtics RealGM board, Celtics Blog, and AOL's Bucks Fanhouse, among many other websites--why would either team want to finish the season with a worse record?
Here's why: the team with the second worst record will have a 38.9% chance of landing the first or second pick in the NBA lottery (to be held on May 22), while the team with the third worst record will have a 31.5% chance of landing one of those two picks. In a draft that will feature two
likely-franchise players, Greg Oden and Kevin Durant, and 58 other guys, getting the first or second pick means perhaps more in this draft than any other. And with only a handful of games left in the NBA season, each team "competing" for Oden and Durant really can't afford to win--or so the tanking theory goes.
But where is the evidence that Doc Rivers and Larry Krystkowiak were actually coaching their teams to lose? Could a coach really tank a game in a way that isn't embarrassingly obvious? And why would a coach, who presumably cares about his career record and has some pride, want to lose? I could certainly see a team owner wanting to lose, and perhaps also a general manager who has taken a long term view, but the more a coach loses games, the more likely he will be fired . . . unless, I suppose, he has been told by management that he will only be kept if he loses.
There is also some "evidence" that each team has adopted a lose-now/win-later strategy. For instance, the Celtics have shut down for the season their three best players, Paul Pierce, Al Jefferson, and Wally Szczerbiak. By most accounts, Pierce and Jefferson are suffering from either minor, lingering injuries or lack of conditioning issues, and both could probably play if needed. Making matters more suspicious, Doc Rivers has already been accused of tanking a recent game: it was against the similarly-dreadful Charlotte Bobcats, where his team was up by 16 points going into the fourth quarter, but then, at the start of the fourth quarter, he inexplicably put in
a very strange and not good line-up that may have led to a stunning come-from-behind Bobacats win in Boston.
One might also say the Celtics have a "history" of tanking, as former coach and GM M.L. Carr admitted the team had tanked in the 1996-97 season in hopes of landing the first pick and selecting Tim Duncan. As I wrote last April in a post on the lottery system:
Perhaps the most recent and egregious example of purposeful losing by an NBA team occurred in the 1996-1997 season, when teams were jockeying for the worst record, in hopes of securing the coveted first pick in the draft, which would be used to select Tim Duncan. At the time, the Celtics were coached by M.L. Carr, who was 
also the team's general manager. The team lost 67 games, thus securing the worst record (but it didn't win the lottery). Having watched a number of their games that season, it seemed that they always found a way to lose. Five years later, Carr would assert that he was indeed trying to lose games:Carr suggested his last season as Celtics coach in 1996-97, during which the team suffered through a franchise-worst 15-67 record, was a tank job designed to deliver the incoming coach (Rick Pitino) with strong draft position. "That was part of the orchestration," said Carr, an obvious indictment of the entire organization and its part in encouraging a losing season in an attempt to get the first overall pick (Tim Duncan). As it turned out, the Celtics lost out on Duncan and settled for the third and sixth overall picks. From: Mark Cofman, Celtics Dismiss Outspoken Carr, Boston Herald, Feb. 1, 2001, at 84.
Still, I find it hard to believe that a coach--at least one who is not also the GM--would try to lose a game. But let's say the suspicions are true. What should the NBA do about it? Or should it do anything? If we assume that tanking is a problem, here are some possible ways to counter-act it (although each brings its own can of worms):
1) No Weighted Lottery: Give every lottery team an equal shot at winning the lottery. So each of the 14 lottery teams would have about a 7% chance of landing the first pick. This has been proposed by others, including Ankur Amin of Associated Content and CochiseTX of digg.
Upside: really bad teams would no
longer tank, and it's unlikely that a team on the cusp of making the playoffs would try to instead make the lottery for a 7% of getting the first pick, although that could be a slight concern.
Downside: really bad teams may no longer be able to re-build through the draft, and some franchises could linger in lousiness for many seasons, thus damaging local fan interest in the team and probably the NBA, too. I could see the NBA opposing this idea on grounds that it would damage the joint-venture quality of the league and its owners.
2) Inverse Weighted Lottery: Give teams that just missed the playoffs a better chance at winning the lottery. This plan was offered by Sports Law Blog reader Collin in response to my post last April.
Upside, per Collin: "It would not substantially punish the lower ranked teams (since they've got much deeper seated problems) and would also increase the chances that a high draft pick could make a difference (by playing on a team where he might be the missing piece) AND would make teams play harder at the end of the season."
Downside: see downside for solution #1, except it would be presumably even greater here.
3) Competitive Play Complaints: A Joint League and Player Investigative Committee on Competitive Play. Let's say another team suspects that the Celtics and Bucks are trying to lose. How about if that team could file a complaint with the Commissioner and ideally also the Players' Association Director requesting that the NBA and NBPA investigate whether there is any evidence of tanking. If the complaint has reasonable probability, a committee of league officials and players' officials could conduct follow-up interviews with players, coaches, and maybe also local media and reputable bloggers. Following those interviews, if sufficiently damming evidence is found and verified, the tanking team could be punished by losing the opportunity to land the first or second pick (with an appeal process worked in).
Upside: it might dissuade some teams from tanking, if for no other reason than to avoid the embarrassment of having a competitive play complaint filed against them. It would also avoid some of the more draconian and unintended consequences found in ideas #1 and #2.
Downside: hard to show intent to lose; what kind of rules of evidence would apply?; it would seem to make the game more litigious and most people don't like legal-like processes; not sure who would support this; and the commissioner probably already has this power (although he doesn't seem to use it).
4) Eliminate the NBA Draft altogether; Every Rookie is a Free Agent.
Upside: See Alan Milstein's classic post on Sports Law Blog--perhaps the best post ever on this blog--Reggie Bush Sweepstakes. That post, which was published in December 2005, was obviously on the NFL draft, but the same arguments more or less hold true with the NBA draft.
Downside: Not going to happen, and while the draft is indeed primarily designed to prevent amateur players from bargaining with multiple NBA employers (and thus reducing their earning capacity), it also, at least to some degree, does redistribute talent in a way that benefits the league as a whole.
Any thoughts or reactions or better ideas?
Update: Other Takes
In addition to the outstanding comments to this post, several writers on other websites/blogs have responded:
"Michael McCann on tanking. One way to make sure it doesn't happen: make every rookie a free agent. Worth discussing! I'd add some wrinkles like a salary cap, and an ability for teams to pay local players slightly more (calm down, we could carve up the nation into regions with similar populations) to inpsire homegrown pride."
"
"The Sports Law Blog, a long-time Antitrust Review favorite, discusses the fascinating issue of ensuring competition among NBA teams (ensuring competitive games, not ensuring competition for the first pick in the draft by tanking games) (the comments also deal with some antitrust (non)issues)."
Posted By : Michael McCann
"The Inexorable Zero" and Female Umpires in Major League Baseball
Message posted on : 2007-04-05 - 12:27:00
Last week, 30-year old Ria Cortesio became the first female to umpire a major league exhibition baseball game since 1989, when Pam Postema--who would later sue, and settle out of court with, Major League Baseball and Triple A baseball for sex discrimination after Triple A baseball declined to renew her contract--became the first female to ump a big league exhibition game. Based on publicly-available accounts, Cortesio did a good job umpiring an afternoon match-up between the Chicago Cubs and the Arizona Diamondbacks.
Cortesio is currently a Double-A umpire in the Southern League, where she has been for the last 5 years since starting her umpiring career at age 21, and like other minor league umpires, she was called upon to umpire one of the many spring training games on this year's schedule. No female has ever umpired a regular season big league game, just like no female has ever refereed an NFL game or officiated an NHL game (in contrast to the NBA, where two women, including Violet Palmer whom we've blogged about, are referees).
Over on Workplace Prof Blog, Ole Miss law professor Paul Secunda has an excellent post on the possible presence of sex discrimination in explaining why Major League Baseball has never hired a female umpire for a regular season game. He writes about the employment discrimination concept of "the inexorable zero," established by the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324 (1977). As Professor Secunda details,
[I]n pattern and practice group employment discrimination cases, courts rely on statistics to determine whether an employer has a standard operating procedure of discriminating against certain groups, like women. In such cases, when no women have been hired, as is the case with female major league umpires, "fine tuning of the statistics [do not] obscure the glaring absence of minority [employees].... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from ‘the inexorable zero'"). See Teamsters, 431 U.S. 324, 342 n.23 (1977).
As a result, Professor Secunda writes, even without knowing how many females have applied and were rejected by MLB for umpiring jobs--which would normally be crucial data in a sex discrimination claim--MLB
[C]annot hide the fact that [it] has not hired ONE female major league baseball umpire in its entire existence . . . based on this Slate article and other articles on this topic I have read in the press, that there are at least SOME qualified females who could be MLB umpires in the relevant labor pool, I think the inference of discrimination is appropriate here.
The Slate article to which Professor Secunda refers discusses a successful lawsuit by a secretary named Bernie Gera, who in 1973 won a five-year-long lawsuit for the right to umpire a Single A game. Also, as I noted earlier, Pam Postema sued
for sex discrimination after she was let go in 1991 (allegedly--according to Michelle Tsai of Slate--for too often throwing players out of games) and settled out of court.
In addition to possible legal claims, I wonder about broader social changes in how we treat women that might enable more women to obtain officiating jobs in the MLB and other pro sports leagues. Marquette law professor Scott Moss illuminates that point in his reply to Professor Secunda's post:
Another reason Paul's suspicion of gender discrimination seems valid is the blatant nature of baseball players' and officials' discrimination against the few women serving as sports reporters and baseball teams' front office officials. You hear comments like "women don't belong here" and harshly misorynistic attacks. So it's not a stretch to suspect that one reason there are so few female umpires is that same anti-women bias. It's true that . . . probably few women apply or get the requisite training (e.g., a background in high school or college baseball). But "there aren't many women in this field at all" isn't just an alternative explanation to "they're keeping women out";
historically, fields with few women tend to feature more discrimination, precisely because women are seen as "outsiders" who "don't belong." A lot of the really bad cases of physical harassment, for example, tend to be about "the first women pipefitter at XYZ Corp." or "the first women firefighter in the City of XYZ," etc.
So is the absence of female officials in Major League Baseball and other pro sports leagues a reflection of discrimination by MLB and those other leagues, or is it a more cultural/social problem in how we treat and regard and women? Or is it something else?
Posted By : Michael McCann
Blue Jays On Top in Player Development Study
Message posted on : 2007-04-04 - 20:41:00
Baseball America (BA) just completed a study on the rosters of all 30 MLB organizations and the results revealed that the Toronto Blue Jays have outperformed all other teams over recent years in player development (Matt Eddy, Blue Jays Finish On Top of Roster Study, 3/30). BA quantified the success of developed players by measuring playing time--plate appearances for hitters and innings pitched for pitchers. Players on 40-man rosters as of mid-March and who signed since 1995 were considered, with each player credited to his signing organization. In order to combine the contributions of batters and pitchers, BA credited a player with a "season" for each batter(502 PA) or ERA (162 IP) title he qualified for.
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2007-04-02 - 10:05:00
New this week:Richard T. Karcher, The use of players' identities in fantasy sports leagues: developing workable standards for right of publicity claims, 111 PENN STATE LAW REVIEW 557 (2007)
Joshua Peck, Note, Last resort: the threat of federal steroid legislation--is the proposed legislation constitutional?, 75 FORDHAM LAW REVIEW 1777 (2006)
Posted By : Geoffrey Rapp
Another Instance of Point Shaving?
Message posted on : 2007-03-31 - 12:14:00
One benefit to professional athletes making substantial money is that the threat of players throwing games or shaving points at the behest of gamblers is diminished (even if not eliminated, see Rose, Pete). Gambling was a genuine threat to the integrity of professional sports in the early days of professional sport, particularly baseball, as Dean Roger Abrams describes in a forthcoming book called Dark Side of the Diamond.
But the risk remains in college sports, where players' genuine financial need, combined with access to gambling and gamblers, gives players an incentive to take money in exchange for poor performance. The latest example involves federal criminal charges filed last week against University of Toledo running back Harvey "Scooter" McDougle Jr. for participating in a bribery scheme to influence sporting events. Story here; some comments here. Scooter allegedly acted as go-between a gambler known as "Gary" and various Toledo football and basketball players, who took cash, cars, phones, and other gifts.
College basketball has had its share of point-shaving scandals: the 1948-49 Kentucky Wildcats, the 1950-51 CCNY team (that won both the NCAA and NIT championships), Boston College in the late 1970s, and the 1994 Arizona State Sun Devils. But there have been fewer examples of football players tanking in this way, probably because one (or even a few) players cannot alone affect the outcome of a game. The only example I recall off-hand (I say with the pride of an alumnus) involved former a Northwestern running back named Dennis Lundy, who deliberately fumbled on the one-yard-line in a 1994 game against Iowa to keep NU from covering the spread (he had a $ 400 bet on the game). Lundy was sentenced in 1999 to one month in prison for lying to a grand jury.
Scooter McDougle admits he accepted gifts from Gary, but insists it never changed the way he played to affect the outcome of games. That becomes the key fact the prosecution must prove. We shall see.
Posted By : Howard Wasserman
the disappearance of the Activist Athlete
Message posted on : 2007-03-30 - 23:15:00
Where have the Activist Athletes gone? In the 1960s and 1970s, Kareem Abdul Jabbar, Bill Walton and Muhammed Ali (amongst many others) advocated, even agitated for political change. A few days ago, Professor Wasserman suggested in connection with HBO's "The UCLA Dynasty" that the Activist Athlete has waned in recent years, due in part to college athletes being less politically involved than they used to be, social activism now coming from the political right (i.e. devout Christian athletes) as opposed to the political left, and that coaches, in particular Coach Wooden not allowing political expression on the playing field or court.
Folks may wonder why athletes today refuse to take strong political stands when the stages that they occupy would allow great influence. Certainly it is not for a lack of controversial political activity. The nation is currently embroiled in an unpopular war, much like Vietnam years ago. Issues of race and gender continue to fill the airwaves, the newspapers and the law reviews.
After reading about Tiger Woods in this week's Sports Illustrated, it seems abundantly clear why the Activist Athlete has disappeared: Corporate Endorsements (and the potential for superstar athletes to become “billionaires�). Woods' states in SI when asked about his business acumen and decisions: “It all depends on how much risk you want to take on. . . The things I do are very conservative. . . . I guess you don't become billionaires by making bad decisions.� Corporate dollars were far less available and significant in the years of the activist Lew Alcindor, Walton and Cassius Clay.
Recall, that Tiger Woods refused to hold Fuzzy Zoeller's feet to the fire, when Zoeller made fairly egregious racist comments in connection with Tiger as a young professional. Recall that Michael Jordan sprinted away from political controversy during his career, in particular when the issue of child labor abuse and Nike's manufacture of “Air Jordan's� overseas surfaced. In fact, it is almost stunning today to hear an athlete take a controversial position. Several years ago Kellen Winslow, Sr. talked openly about affirmative action during his NFL Hall of Fame induction ceremony. Eighteen years ago John Thompson, Jr., boycotted a Georgetown basketball contest while the coach to protest NCAA admissions standards he deemed harmful to young African American athletes.
It is difficult to imagine that Kellen Winslow, Jr. would strike any type of controversial political position today. Similarly, John Thompson III would stun pundits were he to advocate a controversial position in the manner that his father did.
The allure of
corporate sponsorship dollars keeps the modern Activist Athlete in check. Why would Tiger Woods risk his fortune? Why would Michael Jordan risk his empire? Why would Larry Bird risk his legacy? The fear of being seen as controversial or risky keeps Activist Athletes from voicing activist positions. I fear that the race for corporate dollars not only silences athletes that might be politically motivated, but also discourages the modern athlete from even carefully examining controversial issues of the day.
That said, Kobe Bryant, who was dropped by several sponsors after allegations arose as to sexual battery, seems to have now been forgiven by corporate America for the time being . . .
Posted By : dre cummings
Race Attributions and Georgetown University Basketball
Message posted on : 2007-03-30 - 18:44:00
Earlier this afternoon, Jon Hanson and I posted on The Situationist a piece entitled Race Attributions and Georgetown University Basketball. Our piece is inspired by Sean Gregory's new article in Time Magazine on the sociological role of race in how fans regard the Hoyas.
Using social psychology, Jon and I examine why so many doubted how well the Hoyas would be able to implement the "complex, precise" Princeton Offense, as directed by John Thompson III after he became coach of the Hoyas in 2004.
We connect those doubts to stereotypes about white persons playing basketball, and the larger issue of how implicit attitudes cause us, often unknowingly, to interpret another's behavior based on his or her race.
We hope you check out our post on The Situationist.
Posted By : Michael McCann
Rethinking Contact Between NBA Executives and Parents of College Players
Message posted on : 2007-03-29 - 06:10:00
Last week, I blogged about the NBA fining the Boston Celtics because their executive director of basketball operations, Danny Ainge, sat next to the mother of University of Texas star Kevin Durant during a recent game. Durant will likely be the second player selected in this year's NBA draft, after Greg Oden, and the Celtics currently have the second worst record in the NBA (however, because of the NBA's weighted lottery system, the team with the second worst record only has a 38.9% chance of landing one of the first two picks). As we examined, the NBA has a strict liability policy on team executives sitting next to family members of amateur players. That's true even though the "desired" players among them are not going to become free agents out of college, since they will be drafted and their NBA employment rights will be controlled by whatever team drafts them. In other words, NBA general managers can't "recruit" prospective draft picks like college coaches can recruit high school players.
Sports Law Blog reader and fellow Celtics fan Matthew Dinan e-mails a fascinating question that highlights a peculiar implication of the NBA's strict liability rule:
Given that Celtics head coach Doc Rivers is a parent of a potential NBA player--point guard Jeremiah Rivers of Georgetown University--could the NBA fine Danny Ainge and Doc Rivers for sitting next to each other, even though it is a prerequisite of their job?
I know the NBA would say it makes an exception in this instance since Ainge and Doc Rivers work together in running the Celtics, but it brings to mind other potential instances that might also, if less clearly, warrant exception.
For instance, say Danny Ainge happens to be friends with former tennis star Yannick Noah. Can they not sit next to each other at a game because Noah's son, Joakim, will be a top 10 pick in this year's draft?
Or how about if Ainge sits next to the parents of BYU basketball star Keena Young to talk about how their sons play together on the same team--Austin Ainge also plays for BYU. Since Young might be drafted next year, would Ainge's seating be a problem with the NBA? Should it be a problem? Where do we draw the line?
Taking it a step further, what's really the point of this rule? It's not like college players become NBA free agents right out of college (at least the draft-worthy ones don't). Can Ainge really
brown-nose his way into getting Greg Oden or Kevin Durant or Roy Hibbert or whomever? No. They're subject to the draft. And they will clearly be drafted.
And it's not like getting to know the parents would even help to sign a drafted player--the NBA has a rookie salary scale that determines how much a draft pick will earn based on when he is drafted.
I suppose, as we discussed in last week's post, the NBA might be worried about Danny Ainge encouraging underclassmen to declare. But would that even benefit him in a draft situation, when there are 29 other teams drafting? I guess one could say that every additional top player eligible to be picked makes the draft deeper for all teams, but again, the benefit there seems diffuse . . . unless, of course, you are picking #2, and you know that Greg Oden will go #1, and there is a huge drop-off in talent from Kevin Durant to the next best available player, so you better hope that Durant declares for the draft. Maybe David Stern was right after-all to fine Ainge!
Posted By : Michael McCann
FSU College of Law Entertainment, Arts, and Sports Industry Breakfast
Message posted on : 2007-03-28 - 21:56:00
The Entertainment, Arts & Sports Law Society of Florida State University College of Law will be hosting the Entertainment, Arts, and Sports Industry Breakfast this Saturday, March 31, at 8:30 a.m.
I am honored to be one of the speakers at the breakfast, which will also include former Auburn head football coach and current ABC Sports broadcaster Terry Bowden, among other distinguished speakers. Details for the event are below, and if you are interested in attending, please click here.
Entertainment, Arts & Sports Law Society
presents the
Entertainment, Arts, and Sports Industry Breakfast
Saturday, March 31, 2007 8:30 a.m. to 1:30 p.m.
Florida State University, College of Law, Rotunda
425 W. Jefferson St., Tallahassee Florida
All Students and practitioners are welcome!!! Light Breakfast and Refreshments will be served
Terry Bowden, 1993 Coach of the Year, College Football Analyst, Motivational & Keynote Speaker, and FSU College of Law Alumnus
Michael McCann, Sports Law Professor, Representative of Maurice Clarett against the NFL, and Chair-Elect of the Association of American Law School's Sports Law Section
Dr. Thom Park, National Expert on Coaching Contracts
Jan Michael Morris, Representative of Venus & Serena Williams' Father
Steven Newburgh, Cast Attorney for Reality Television's Miami Ink
Rob McNeely, Entertainment Law Professor & Former Creed Counsel
Sponsored by Fowler White Burnett, Attorneys at law
Thanks to Mike Giraud, Shane Costello, and Ryan White for their excellent work in putting this event together.
Posted By : Michael McCann
March Madness and Groupism
Message posted on : 2007-03-27 - 12:52:00
Jon Hanson and I have a post up on The Situationist on what March Madness and, more generally, our team allegiances and group affiliations, might say about us and human behavior.
We believe that the very same attributions that drive us toward caring so deeply about our schools and teams emerge in many other life contexts, some good, some not so good.
We hope you check out our post.
Posted By : Michael McCann
UCLA's Dynasty
Message posted on : 2007-03-27 - 11:31:00
Last night, I watched the HBO Sports documentary The UCLA Dynasty, which recaps (in a too-short 60 minutes) UCLA's run of 10 NCAA titles in 12 years under Coach John Wooden. Definitely worth a look when it re-airs (if you have not TiVoed it).
The show does a great job showing how the program played against the backdrop of the social and political upheaval of the late 1960s and early 1970s on issues of civil rights and Viet Nam. And it shows how activist and politically involved many of the players (including star players such as Lew Alcindor and Bill Walton were. For example, I never knew that Walton was arrested at an anti-war rally while in school.
Interestingly, Coach Wooden comes across as having been somewhat supportive of his players' activism, at least out of season. Wooden had strict short-hair/no-facial-hair rules during the season, but, for example, allowed the African-American players to express identity growing it away from the season. Similarly, in the recap to the incident where Walton was arrested, Wooden expresses support of the player's right to speak out, but only asks him to "keep an open mind" and to think through the consequences of his actions.
Perhaps this all is a product of its time in three senses.
First, athletes (especially college athletes) today are, as a whole, far less politically involved than they were--but so are college students generally.
Second, whereas the activism of the late 60s/early 70s came on the political left, most athletes' activism today comes from the political right, especially among the many devoutly Christian athletes.
Third, the activism never made its way onto the floor, probably because Wooden would not have allowed it. On the other hand, those athletes today who do take a political stand--Carlos Delgado and "God Bless America," Toni Smith and the national anthem, the role of God and Christ in a player's victory--all are on display on the playing field.
Posted By : Howard Wasserman
Issues in College Sports Lecture Series at the University of Memphis
Message posted on : 2007-03-26 - 00:07:00
The University of Memphis Sport and Leisure Commerce program is in the midst of hosting its 2nd Annual Issues in College Sports Lecture Series. The series features coaches, scouts, agents (including Jimmy Sexton), sports business professors, and sports law professors, among other distinguished guests. The series has been put together largely through the excellent work Here is a schedule of upcoming events (and if you would like to attend any of these discussions, directions to the University of Memphis are available at this link and all of the events will be held in Room 124 of Ball Hall).
Monday, March 26th, 4:00p.m. - The Business of College Sports. (Ryan McPhail, Titus Jackson – student moderators)
Dr. Ronald Dick – Duquesne University
Dr. Mark Nagel – University of South Carolina
Dr. Kadie Otto – Western Carolina University
Mr. Jimmy Sexton – Memphis, TN
Dr. Nathan Tomasini – The University of North Carolina at Chapel Hill
Friday, April 6th, 4:00p.m. - Division I College Recruiting: The good, the bad, and the ugly. (Ryan Ivey – student moderator)
Coach Jimmy Adams – Head Boys Basketball Coach, Raleigh-Egypt High School
Mr. Chad Alexander - Midwest Area Scout, Baltimore Ravens
Mr. Bobby Burton - Chief Operating
Officer and Editor-in-chief Rivals.com
Dr. Joe Luckey – Director, Center for Athletic Academic Services, The University of Memphis
Dr. Fritz Polite – The University of Tennessee-Knoxville
Friday, April 13th, 4:00p.m. - Congress, Intercollegiate Athletics, and Higher Education: Is college sports a tax-exempt enterprise or an unrelated business? (Shawn Fayard, Walt Barton - student moderators)
Prof. Paul Anderson – Marquette University Law School - National Sports Law Institute
Prof. John Colombo – The University of Illinois Law School
Prof. Michael McCann – Mississippi College School of Law
Dr. Dave Ridpath – Ohio University
Prof. Linda Sharp – University of Northern Colorado
Dr. Ellen Staurowsky – Ithaca College
Mr. Welch Suggs – University of Georgia
Friday, April 20th, 4:00p.m. - White v. NCAA: Greed or Monopsony – A discussion of the case's legal merits. (Carrie Sordel, Dawnyell Fletcher – student moderators)
Prof. Paul Batista – Texas A&M University
Mr. Tony Bonds – Suntrust Financial
Mr. Patrick Byrne – The University of Memphis
Mr. Ramogi Huma – College Athletes Coalition
Dr. Allen Sack – The University of
New Haven
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2007-03-23 - 21:48:00
New this week:M. Christine Holleman, Recent Development, Fantasy foot-ball: illegal gambling or legal game of skill?, 8 NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 59 (2006)
Aaron Levy, Note, A risky bet: the future of pay-to-play online fantasy sports, 39 CONNECTICUT LAW REVIEW 325 (2006)
Paul D. Trumble, Comment, “Knickel� and dime issues: an unexplored loophole in New York's genetic discrimination statute and the viability of genetic testing in the sports employment context, 70 ALBANY LAW REVIEW 771 (2007)
Posted By : Geoffrey Rapp
Brooklyn Law Prof Takes on the NFL
Message posted on : 2007-03-21 - 20:16:00
Wendy Seltzer, a visiting assistant professor at the Brooklyn Law School, is embroiled in an intellectual property battle with the National Football League. Seltzer has been detailing her battle with the league over her posting of an NFL clip from Youtube on her own blog for a while. Yesterday, ars technica picked up the story, which has since been reported in the mainstream media (I heard about this through fark).
No, Seltzer didn't post a clip of a hard hit, a long pass, or an impressive run up the middle. Rather, she posted the NFL's copyright notice, which most football fans have seen numerous times on TV:This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited.
According to Seltzer, she wanted to demonstrate to her students that, from a legal perspective, the NFL's statement was false. Namely, the NFL's warning fails to make any mention of "fair use."
Likely unaware that it was dealing with an Electronic Frontier Foundation lawyer, the NFL pursued its Digital Millenium Copyright Act remedy, asking Youtube to take down the clip. Seltzer filed a counter-notification, claiming that her posting represented fair use.
As a blogger who regularly lifts copyrighted images (but so far, no video clips) for educational purposes, it may be obvious that my sympathies lie with Professor Seltzer. I've long thought that law professors who blog could claim a fair amount of fair use protection for images (those blogs sponsored by deep-pocketed publishers seem to avoid possibly copyrighted images). However, I have to admit that were anyone to ask me to take down a picture the rights to which they own, I would probably pull it off the blog.
Posted By : Geoffrey Rapp
Close Encounters of The Stern Kind: Danny Ainge Fined
Message posted on : 2007-03-20 - 00:07:00
The NBA has fined the Boston Celtics $30,000 for general manager Danny Ainge unintentionally sitting next to the mother, step-father, and grandmother of University of Texas freshman Kevin Durant, who will likely be the second player selected in the 2007 NBA Draft, during the Big 12 tournament a couple of weeks ago. They were all seated five rows behind the Texas bench. NBA rules prohibit team executives from contact with college players until they officially declare for the draft.
But 1) was that rule actually violated; and 2) even if Ainge violated the rule, does it make much sense?
Let's take the first question first. It should be noted that Ainge sat next to Durant's mom and not him. The rule expressly prohibits contact with the college players, although the NBA is interpreting it to also include family members and "advisers." Notwithstanding what I think about the rule, I believe the NBA is making the correct interpretation: it would seem to be in the spirit of the rule for it to extend to immediate family members of the player, otherwise there would be a rather jarring loophole.
It should also be noted that Ainge's contact with Durant's family was unintentional; their seats for the game happened to bring them to the same place, five rows behind the Texas bench. Having said that, the NBA's rule appears to be based on strict liability; intent, or even a lesser element like recklessness or negligence, does not seem to be required.
But the second question is perhaps more intriguing: Why does this rule even exist? After-all, it's not like Ainge, or any NBA executive, could actually recruit Durant by speaking with him or his mom. That's because the NBA, like other major sports leagues, employs an amateur draft, meaning college players are not free agents. Moreover, even if the Celtics tried to lose enough games to secure the second worst record, which they presently "enjoy", they may not wind up with second overall pick--and as all of us Celtics fans know, sometimes a weighted lottery doesn't work out the way it should (i.e., Tim Duncan should really be a Celtic, but isn't. I still haven't gotten over that). In fact, securing the second-worst record only provides the Celtics with a 38.9% chance of landing one of the top two picks.
Now, I suppose NBA Commissioner David Stern could say that by sitting next to Mrs. Durant, Ainge might somehow try to persuade her that if the Celtics don't land the second pick, then she should convince her son to holdout from whichever team drafts him and then demand a trade to the Celtics. Or maybe Durant's grandmother is really the influential one, and Ainge could try to employ the same plan with her. Or maybe its the step-dad. Or maybe these are far-fetched ideas that sound in paranoia, rather than reality.
Another possible and perhaps more legitimate NBA concern: Danny Ainge might encourage Mrs. Durant to convince her son to declare for the NBA draft, rather than to stay at Texas. This concern seems more plausible, especially since the NBA seems intent on protecting the NCAA and its member schools, which obviously make a ton of money off the free labor of these players.
Henry Abbot over at his new home for TrueHoop--ESPN.com (congrats Henry)--explains in his post "The Myth of Amateurism" why this rationale may not be the most meritorious, even if it is commonly mentioned.
One last contextual point: the fining of the Celtics for Danny Ainge's "inappropriate contact" is the latest in a string of recent NBA fines of NBA executives for comments or actions related to potential draft picks. Namely, the Charlotte Bobcats were fined $15,000 for comments made by co-owner/CEO Michael Jordan regarding Durant, and the Golden State Warriors were fined $15,000 for comments made by coach Don Nelson about Durant and presumptive number one overall pick, Greg Oden.
Posted By : Michael McCann
Baseball and the Brain
Message posted on : 2007-03-19 - 10:26:00
Interesting David Brooks column in The Times today, talking about the way in which baseball players depend almost exclusively on the unconscious brain to play the game and how baseball has developed drills to reinforce those unconscious responses.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-03-19 - 10:05:00
New this week:Glenn George, Playing cowboys and Indians, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 90 (2006)
John A. Gray, Sports agent's liability after SPARTA?, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 141 (2006)
Jonathan Jenkins, Note, A need for heightened scrutiny: aligning the NCAA transfer rule with its rationales, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 439 (2006)
Peter Kreher, Antitrust theory, college sports, and interleague rulemaking: a new critique of the NCAA's amateurism rules. 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 51 (2006)
Andrew E. Rice, Eddy Curry and the case for genetic privacy in professional sports, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2006)
Ronnie Wade Robertson, Comment, Tilting at windmills: the relationship between men's non-revenue sports and women's sports, 76 MISSISSIPPI LAW JOURNAL 297 (2006)
Leena M. Sheet and A. Benjamin Katz, Protecting rights in videogames: next generation licensing, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 124 (2006)
George D. Turner, Note, Allocating the risk of spectator injuries between basketball fans and facility owners, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 156 (2006)
Posted By : Geoffrey Rapp
RIP, Commissioner Bowie Kuhn
Message posted on : 2007-03-17 - 12:09:00
I should have posted on this yesterday, but I came late to the New York Times obit of former Commissioner of Major League Baseball Bowie Kuhn, who died Thursday at age 80.
Kuhn's name is familiar to most law students because he was the named respondent in Flood v. Kuhn, the 1971 case in which the United States Supreme Court rejected former player Curt Flood's challenge to the Reserve System, holding (actually, reaffirming an 80-year-old holding that the Court thought was wrong) that Major League Baseball was not subject to federal antitrust laws. For both student and professor, that opinion is either fun or ridiculous (depending on one's point of view) because all of Part I was an ode, written by Justice Blackmun, to the history and majesty of baseball. It included a listing of many great players of the pre-WW II era. Chief Justice Burger and Justice White refused to join that part of the opinion and, the story goes, Justice Marshall demanded that Blackmun include some Negro League players. Dean Roger Abrams, one of the leading sports-law scholars, recently wrote a paper on the players listed in the opinion.
What I think is noteworthy about Bowie Kuhn is that he may be the last independent baseball commissioner to serve for a substantial period. He was willing to wield his "Best Interests of Baseball" powers against the owners who, as a legal and practical matter, employ him. As the Times story describes, Kuhn repeatedly took on owners in a way I am not sure Bud Selig or whomever replaces him two years from now will be willing or able to do. Most notably, Kuhn wielded his "Best Interests" powers to void a series of deals when Oakland A's owner Charlie Finley tried to sell off the star players from his championship teams to avoid losing them to the early days of free agency.
Kuhn's commissionership is historically significant (arguably the second most historical, after Landis and before Selig) because of the massive changes that occurred on his watch. Some were for good (increasing attendance, increased television viewership, a fair labor system), some were for ill (multiple work stoppages and lingering racial tensions in the game) and some were for very ill (have you checked out the uniforms teams wore in the 1970s?).
Posted By : Howard Wasserman
On the Limits of Analogies Between Baseball and the Law
Message posted on : 2007-03-14 - 19:26:00
I love baseball. And I love law. And I like judges and lawyers who share those twin passions. But the repetitive analogies between umpiring and judging are getting old and inaccurate very quickly.
The latest comes from Justice Samuel Alito (UNRELATED ASIDE: When Alito was a judge on the United States Court of Appeals for the Third Circuit and I was a law clerk for a judge on that court, Alito swore my co-clerks and me onto the bar). Anyway, Justice Alito was in St. Petersburg, recently to throw out the first pitch at a Devil Rays-Phillies game (Alito is a life-long Phillies fan, but donned a D-Rays jersey). Rick Garnett has the photo and story here. And I agree, Rick: Alito has pretty good form.
But the story describes Alito giving a talk at a dinner while he was there and saying the following:
One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"
These analogies do not work and they must stop.
First, whether a legal rule should or will "live" depends to some extent on the nature of that rule. There is not much interpretative life in:
"The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap."
There is inevitably and necessarily more life (with the attendant evolution and change) to interpreting and applying broad, amorphous principles or ideas such as "the freedom of speech" or "cruel and unusual punishment."
Second, we do have a living strike zone. If you don't believe me, watch a baseball game from the 1970s or 1980s on ESPN Classic. Pitches at the letters were routinely called strikes, as were pitches slightly below the knees (what was then called a "National League Strike"). Neither one is ever called a strike now. True, the strike zone was lowered slightly in 1988. But rarely is any pitch above the belt called a strike nowadays.
Third, the fact that there were differences between National and American League strike zones tells us that some "life" was present. Back in the 70s and 80s, AL umpires used large exterior balloon chest protectors, which required them to stand more upright--allowing them to see the high pitch more easily than the low pitch. NL umpires wore chest protectors under their shirts, allowing them to crouch lower and thus better see the low strike.
Fourth, even with uniform equipment, no two strike zones are exactly the same simply because no two umpires are exactly the same. There will be slight variations in each umpire's crouch or the angle of her head or her position behind the plate. Such differences produce variations in how each umpire sees a given pitch and thus how each umpire calls a given pitch--what each strike zone looks like.
The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination. Of course, neither is judging the meaning of the First Amendment.
So, on second thought, perhaps the analogy between judging and umpiring works. Just in the precise opposite direction from what Justice Alito was trying to suggest.
Posted By : Howard Wasserman
Hiring a Union Executive Director 101
Message posted on : 2007-03-14 - 13:45:00
In my post last Friday, I discussed the latest developments in the ongoing battle between the NHLPA and its executive director Ted Saskin. On Sunday evening, the 30 player representatives voted to put Saskin and senior director Ken Kim on paid leave, and to hire an outside lawyer to investigate whether they were reading private player emails. All indications lead to the conclusion that the union will be searching for new leadership. As stated in a comment to my post, maybe the players will now have an ample opportunity to deliberate about who they really want to lead them going forward.
But how do the players go about making such an important decision? What may seem like a common dilemma often faced by any organization or company at any given time is, conversely, atypical in professional sports unions. With the exception of closely-held and family-owned businesses, turnover in top executive office positions occurs on a relatively frequent basis (about every three or four years). Contrast the situation with the tenure of the executive directors in the NFLPA, MLBPA and NBPA: Gene Upshaw - 24 years; Don Fehr - 21 years; Billy Hunter - 11 years. And Bob Goodenow was the executive director of the NHLPA for 14 years before Saskin took his place.
So the first question would be, what qualities and background should an executive director of a professional sports union possess? Should an executive director have experience as a former player, like Gene Upshaw? Should it be a prerequisite that the person have experience as a lawyer, like Don Fehr and Billy Hunter? Or maybe it should be a prerequisite that the person have prior experience as a president of a labor union. Maybe an accomplished person in business with an established track record running a successful company would be a good quality to have. Or maybe a person who has a well-rounded knowledge of sports law :)
The next question is how do the players go about finding the right person? Players could seek the advice of their agents, but there is a conflict there when the agent represents the individual interest of each player, not the interest of the players collectively. Agent Matt Keator said he would offer his opinion if asked by his clients, but he doesn't believe agents should be involved in the decision: "We work for the players. It's not our association. It's their association. In my mind, it needs to be the players setting the tempo." (See Kevin Allen, Players making sure Saskin case handled properly).
Kevin Paul Dupont of the Boston Globe provides an answer to both questions: "[H]ire a small panel of corporate job hunters who can identify two or three worthy candidates to take over the union. Someone the players can trust. Someone with no ties to hockey." (Leadership on thin ice again) When I first read this, I thought, WHAT? A CORPORATE JOB HUNTER? AND NO TIES TO HOCKEY? But on second thought, his suggestion isn't a bad idea. It's time to bring in some new blood, and with the aide of an outside firm that has no skin in the game whatsoever. Search firms are often utilized by companies to fill vacancies in top executive positions. It makes even more sense for the players to hire a search firm because they, similar to all members of labor unions, are not involved in the day-to-day operations of the organization. What makes it even more complicated is the fact that there exists no "pool" of potential candidates that have prior experience running sports unions, as is typically the case when a company is searching for candidates. The players also have conflicting interests among themselves (i.e. rookies vs. veterans) that can cloud their judgment in making a decision
about who the best person would be to represent their collective interests.
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2007-03-12 - 10:02:00
New this week:Lindsay C. Ferguson, Comment, Whistle blowing is not just for gym class: looking into the past. present, and future of Title IX, 39 TEXAS TECH LAW REVIEW 167 (2006)
Jodi A. Janecek, Comment, Hunter v. hunter: the case for discriminatory nonresident hunting regulations, 90 MARQUETTE LAW REVIEW 355 (2006)
Posted By : Geoffrey Rapp
Update on White v. NCAA
Message posted on : 2007-03-11 - 14:43:00
Robin Acton and Richard Gazarik of the Pittsburgh Tribune-Review have an interesting article on a class action lawsuit filed on behalf of over 20,000 current and former Division 1-A football and major Division 1 basketball players from 144 schools against the NCAA ("NCAA: United Steel Worker Union is trying to Make Athletes 'Paid Employees,' 3/11/2006). In White v. NCAA, the plaintiffs allege that the NCAA violated Section 1 of the Sherman Act, which prohibits illegal restraints of trade,
If successful, White v. NCAA could require the NCAA to pay more than $100 million in damages, which would be trebled under antitrust law to over $300 million. The plaintiffs are represented by Attorney Marc Seltzer (pictured to left) of Susman Godfrey in Los Angeles, while the law firm Bingham McCutchen is representing the NCAA. I analyzed this lawsuit last February in a post entitled Incidental Matters: Antitrust Class Action Filed Against NCAA.
Acton and Gazarik interview a number of prominent experts for their story, including Professors Richard Southall of the University of Memphis, Stephen Ross of the Penn State Institute for Sports Law, Policy and Research, and Rodney Fort of Washington State University.
Here are some excerpts:
Richard Southall, assistant professor of sports and leisure commerce at the University of Memphis, said highly paid coaches exercise too much control over the players who are struggling financially while making
millions for their schools. "Either it's a free market, or it's not," Southall said. "The NCAA says it can't constrain coaches, but yet it can constrain athletes. It's very hypocritical."* * *
"If you're a really poor kid, you can get a full grant-in-aid and additional money from Pell grants. If you're not desperately poor and not wealthy enough for your parents to send you an extra couple hundred dollars a week, you still fall short," said Stephen Ross, director of the Penn State Institute for Sports Law, Policy and Research. Ross said a star athlete can generate as much as $1 million annually by attracting fans. In a free market, he said, that athlete could be worth a salary of $100,000 per year.* * *
Rodney Fort, a sports economics professor at Washington State University, said studies show that playing Division 1 football or basketball is a full-time job. He said scholarship athletes, who fit the description of an employee in IRS guidelines, can lose their "jobs" without guarantees.
For more from the article, click here.
Posted By : Michael McCann
Interesting Developments in NHLPA Investigation
Message posted on : 2007-03-09 - 13:13:00
In January, I did a post regarding the approval of an independent investigation into the hiring of current NHLPA executive director, Ted Saskin. There have been a couple of interesting developments since then.
First, about three weeks ago, Liz Mullen of Sports Business Journal reported that there are 9 side letter agreements entered between the NHL and the NHLPA in conjunction with the 2005 CBA that have been kept secret from the players (NHL says players' union should keep side deals secret, 2/19/07). These side letters add to or elaborate on details of what was agreed to in the CBA. According to Mullen, Saskin said in an email that he agreed with the league to keep these side letters confidential because they contain "sensitive economic data" but he also stated that "the material provisions contained in the letter agreements were shared with the players during ratification" of the CBA.
However, some players and agents say that players were not told about the contents of the letters, including one that pledges union money to the league if players are paid too high a percentage of leaguewide revenue, until after they had voted on the labor deal. According to Richard Marcus, an attorney representing the players, "How can the letters be not confidential to Ted Saskin but confidential to the people who employ him?" Mullen also noted the observations of two unnamed labor lawyers who stated that, while there is precedent in which management has been able to keep proprietary information secret from unions, they have never heard of a case in which the union already has the information and keeps it secret from its own members. Also, the NLRB has taken the position that the union's "failure and refusal" to give the players access to the side letters constitutes a violation of the NLRA.
The second latest development was reported today by Kevin Allen of USA Today ("Players trying to find out if NHLPA accessed private e-mails"). I guess the title of the article sums it all up. But what is interesting is that Saskin is not denying the allegation that union executives have been reading private player emails, but is instead pointing the finger at the former executive director of the union, Bob Goodenow. According to the article, in regards to a conference call that is scheduled for Sunday with the board of player representatives, Saskin told the Canadian Press: "I plan to address the board on Sunday night and the board will learn that Bob Goodenow had instructed NHLPA employees to review player e-mail accounts and this occurred during the lockout and I was not aware of this until much later." Goodenow, in a statement released through his lawyer, responded:
"The allegations made by Ted Saskin against me regarding player emails are false. To date I have not made any public comment since leaving the NHLPA, and I won't now comment on, or get embroiled in current NHLPA issues. That said, I will be glad to respond to questions from players on any NHLPA policies or practices while I was the executive director. I am unaware of an instance where the security of a single player's email or other personal information was compromised."
One-Sport Only
Message posted on : 2007-03-08 - 16:13:00
Alfred Yen posts on Concurring Opinions about a case in Massachusetts in which a high school freshman violated the state's rule that students can play only one sport per season by playing on both the hockey and swim teams. The student was declared ineligible for the season (in both sports) and the school forfeited all the games in which she played.
Professor Yen raises two issues on this: 1) The seeming harshness of the penalty (it is the same penalty as if the student had accepted money for playing) and 2) The questionable wisdom of the rule. I want to consider the second.
According to the post, the state defends the rule as intended to protect athletes from injury and to ensure they have adequate time for academics. But the rule is so under-inclusive that one wonders whether it could be said to rationally further those asserted interests (as all legal rules must do at a minimum).
Professor Yen notes that there is no prohibition on playing a sport and simultaneously participating in another, non-athletic time-consuming extracurricular activity (school play, band, student newspaper, chorus, debate team, pick your geekdom). Indeed, there is nothing (other than the laws of physics and the space-time continuum) to stop a student from playing a sport and participating in all those other activities. And there is nothing (again besides the laws of physics) to stop a non-athlete from participating in every extra-curricular under the sun. So there seem to be too many other things that are allowed to take-up one-sport-athletes time to justify the rule.
As for the increased likelihood of getting hurt playing multiple sports: There is no prohibition on playing a sport for a school team while also pursuing another sport outside the school context, although risk of injury (and loss of academic time) would be identical. For example, this student could play hockey for the school and be a competitive figure skater. Or she could have played hockey for the school and swam for a club team. So again, the rule does not prohibit something that poses the identical risk to the students' well-being.
There is a tendency in schools to single-out athletics for special regulation beyond that for other activities--schools got their foot in the door for drug-testing by going after athletes. And Massachuseets apparently regulates only athletics, not activities more broadly. Even so, I do not see how this rule is justified in furtherance of the stated interests, given the numerous harms the rule leaves unregulated.
Updated: In an e-mail exchange, Professor Yen suggests that the real reason for the rule is to prevent one great athlete from dominating in a bunch of different sports. In the Comments to this post, Anonymous (one of them) offers a different version of that: It is a way to prevent one athlete from taking spots away from her other classmates to maximize the number of people able to participate in sports.
But either or both rationales are even less legitimate than the avoid injury/enhance academics rationales that have been offered. If one student is both the best hockey player and the best swimmer (both winter sports), she should not be prohibited from seeking to maximize her gifts in both. After all, we do not impose a similar limitation where the best debater in the school is also the best actor in the school. And we want to encourage participation in debate or drama as much as participation in sports, no?
Update # 2: If the MIAA is serious about any of these rationales (maximizing diverse participation; avoiding injury; ensuring time for academics), the rule should not be one-sport-per-season, but one (maybe two) sports per
year. If there is a risk of injury from a student playing multiple sports, that is true whether those sports are played concurrently or in different seasons (I still lament that my high school's hopes for a second-straight state basketball championship were dashed when our best player, also the star quarterback, was injured in the last football game of the season). So we are back to the rule being so under-inclusive as to render its logic questionable.
Posted By : Howard Wasserman
Retiring Chief Illiniwek
Message posted on : 2007-03-08 - 01:10:00
The University of Illinois, in a recent move both heralded and reviled, “retired� its 81-year-old mascot “Chief Illiniwek� following the Illini's last home basketball game of the season. In a controversy that has plagued the University of Illinois for at least the past fifteen years, administration officials finally bowed to pressure applied by the NCAA, deciding to discard the “mascot� that has represented the University since the 1920s.
Supporters of the Chief Illiniwek mascot claim that the
white student that dresses in buckskin, native headdress, and face paint pays homage to American Indians in the United States and honors the history and tradition of the original Americans. American Indian groups and other opponents of Chief Illiniwek decry the student mascot as demeaning, derogatory, offensive and disrespectful to Native Americans and their traditions.
In 2005,
the NCAA agreed, albeit tepidly, with opponents of American Indian mascots and demeaning imagery by barring any University that makes use of offensive, hostile or abusive American Indian images from hosting any postseason tournaments or events. Thus, the NCAA banned its member institutions from hosting postseason events if it continued to use derogatory or offensive American Indian mascots. The NCAA in so deciding, placed itself in the position of “arbiter of offensiveness� by allowing member institutions to petition the NCAA for exemption from the new policy. Several University's successfully petitioned the NCAA to allow continued use of American Indian nicknames and logos, including the Florida State Seminoles and the University of Utah Runnin' Utes, based in part on the local Native American tribe approval of the continued use of the mascot and image.
The University of Illinois “
Fighting Illini� and the University of North Dakota “
Fighting Sioux� both petitioned the NCAA for exemption and were denied based primarily on the continued derogatory imagery associated with the mascots at those schools, as well as staunch opposition to continued use by local American Indian tribes. In response to the denial of the petitions, lawsuits have been filed against the NCAA by both the University of North Dakota and by two former Illinois students who had previously portrayed Chief Illiniwek. A state district court judge in North Dakota
recently entered a preliminary injunction against the NCAA allowing North Dakota to host a home playoff football game this past season. North Dakota claims that the NCAA's ban breaches contractual relationships with its member
institutions and is in violation of antitrust laws. The NCAA plans to vigorously defend its ability to regulate member institution activities. A trial has been set for December 2007.
This running controversy raises several questions of great import: First, since
Tarkanian, the NCAA has been afforded nearly carte blanche authority over its member institutions. It is difficult to envision a scenario wherein the NCAA will be found to have exceeded its authority, breached contracts or violated antitrust laws in banning member institutions from hosting postseason events so long as the voluntary member institution continues to use hostile or abusive mascots or logos. Second, if American Indian citizens of the United States are in fact offended, deeply offended, by the mockery of traditions and sacred rituals, why are University administration officials fighting, literally scrapping to
continue to offend American Indian citizens? Third, what difference should it make that some American Indian citizens are offended while it is well documented that other Native Americans are not bothered at all by the imagery and in fact claim to be
proud of the recognition?
Some argue that the NCAA's ban is a step in the right direction. Others suggest that the NCAA has been cowardly in not mandating an outright ban against any continued use of American Indian imagery by member institutions. This debate promises to continue for years to come.
And, what is to be made of the continued use of professional sports franchises that cling to American Indian symbols, logos, mascots and images (i.e., Atlanta Braves, Washington Redskins, Chicago Blackhawks, Kansas City Chiefs, Cleveland Indians, etc.)?
Banning Boo Birds
Message posted on : 2007-03-06 - 15:43:00
The Washington Interscholastic Activities Association is considering a rule that would ban booing, negative comments, and offensive chants at high school sporting events.
I previously have written on whether any type of fan "cheering speech" can be regulated or prohibited at college and professional sporting events. My conclusions in those contexts has been (not surprisingly to those who have been reading me the past few months) that such prohibitions violate the freedom of speech. They also are practically unenforceable, at least in a fair, neutral, and even-handed way. And they are a really stupid idea.
As to banning booing and negative comments: This would run afoul of the First Amendment's basic prohibition on rules that discriminate based on "viewpoint"--rules that permit speech on a topic from one point of view while prohibiting speech on the same topic from a different point of view. Allowing me to cheer for and praise Player X on Team A, but prohibiting me from booing or criticizing Player X on Team A obviously discriminates against one point of view--the negative or critical one. Government cannot require people to "keep things positive."
As to offensive chants: This breaks down on the problem of "offensive to whom?" Is the level of acceptable cheering whatever is acceptable to the most sensitive/least tolerant person in the audience? Acceptable to the school administrator? To the usher?
Plus, much offensive speech is subtle enough that those in charge do not actually recognize that it might be offensive. My favorite example (which I always run back to in all my articles) is what happened when Texas Tech played at Kansas in men's basketball in 2004, a game played a few days after Tech Coach Bob Knight's infamous altercation with the university chancellor at a salad bar in Lubbock. During the game, Kansas fans chanted "salad tosser" at Knight and most listeners (including KU Coach Bill Self and university administrators) praised the students for their cleverness. But go look-up the term salad-tosser as a piece of slang. Think the students knew this when they picked out that phrase?
The point is that prohibiting "offensive speech" is both over-inclusive and under-inclusive. It is over-inclusive because officials tend to get overly sensitive and thus to over-regulate. It is under-inclusive because more subtle (but not less offensive) examples will be missed.
All that said, the fact that this is occurring at the high school level potentially (likely?) changes the analysis. High schools are able to regulate student expression (certainly in school-sponsored and school-funded activities, if not beyond) in ways that would be unacceptable and impermissible on a college campus or in society at large. This includes prohibiting particular points of view on some subjects from being presented within the school confines.
That is why it is important to consider, First Amendment rules to one side, the stupidity of such policies. Whether or not Washington officials could do this gives way to whether Washington should do this. My answer is they should not.
Posted By : Howard Wasserman
Florida Coastal Symposium: The NCAA Enforcement Process
Message posted on : 2007-03-05 - 15:25:00
On Thursday March 15th, there will be an in-depth panel discussion at my law school about the practical and theoretical aspects of the NCAA enforcement process. We have invited some of the key players to serve as panelists who are entrenched in the enforcement process: Jo Potuto, Chair of the NCAA Infractions Committee; Jerry Parkinson, one of the committee's two coordinators of appeals; and Rick Evrard, attorney at the firm of Bond, Schoeneck & King. Their bios can be accessed here. The panel will be moderated by my colleague, Professor Nancy Hogshead-Makar, who teaches our Amateur Sports Law course and has a very impressive bio in collegiate athletics as well.
Joe Drape wrote a timely piece in yesterday's edition of The New York Times about the increased hiring of specialized law firms by universities for representation not only with respect to a pending investigation by the NCAA as one might expect, but to actually perform an internal audit and recommend sanctions before the NCAA has even started investigating ("Facing N.C.A.A., the Best Defense Is a Legal Team"). The article features Evrard, who spent seven years as an NCAA investigator, and his law firm, which represents more than 60 colleges and universities on matters of eligibility, compliance and major infractions investigations. Drape makes some interesting observations:
It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.
....
The N.C.A.A.'s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.
....
Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.'s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.
To me, Drape's last comment pretty much sums up the purpose for hiring outside law firms to perform internal audits and recommend self-imposed sanctions: The infractions committee "rarely rejects the recommended sentence." And let's face it, cooperation with the NCAA is key. The outside law firm appears to almost act as an intermediary as opposed to the adversarial role typically performed by lawyers. In a previous post, I discussed how universities could benefit from hiring a full time in-house attorney to work exclusively in the athletics department, and this is definitely an area by which in-house attorneys can play a valuable
role as well.
UPDATE 3/16/07: Jason Schneider of the Florida Times-Union wrote a great article about the issue ("Firms offer help when schools face legal woes")
Posted By : Rick Karcher
Harvard Law School Conference on Law and Mind Sciences
Message posted on : 2007-03-01 - 15:10:00
For those of you interested in social psychology and the law (such as how cognitive biases affect the decision-making of athletes or how situational influences distort fan perceptions of the NBA) and who live near Cambridge, Massachusetts, I am pleased to announce that Harvard Law School's Project on Law and Mind Sciences (which Jon Hanson and I recently co-founded) will be hosting The Conference on Law and Mind Sciences on Saturday, March 10, in Austin Hall at the HLS campus. Our conference will introduce to lawyers, law students, and legal theorists some of the key discoveries and insights of social psychology, social cognition, and related fields regarding the purposes, motives, and consequences of law. It will also bring together some of the country's most distinguished social psychologists (e.g., Jennifer Eberhardt, John Darley, John Jost) and legal academics (Duncan Kennedy, Charles Ogletree, Martha Minow)--many of whom blog on The Situationist--and will include both the presentation of research by psychologists and a discussion of that research with legal scholars.
It should be a fantastic event, and please let me know if you can make it. I would welcome the chance to meet you in person. If you would like to attend, please register at this link--that way, you will be sure to get a seat and, just as importantly, some food!
Also, for more general information about our Project, please check out lawandmind.com.
Posted By : Michael McCann
Cedric Maxwell's Sexist Comments about NBA Referee Violet Palmer
Message posted on : 2007-02-28 - 16:51:00
Cedric Maxwell--the MVP of the 1981 NBA finals and whose number #31 the Boston Celtics recently retired--has been the color analyst for radio broadcasts of Celtics games since 1995. His thoughtfulness and humor have made him popular among Celtics fans, particularly in recent years as his performance has excelled.
But as reported by Dave Adams of Universal Hub, Maxwell has found himself in controversy due to recent on-air comments about NBA referee Violet Palmer (hat tip to Jeff Clark of Celtics Blog):
During the first quarter of tonight's radio broadcast of the Celtics game against the Houston Rockets,one of the Celtics players managed to fake out the referee to get a call to go his way. The referee who made this call was Violet Palmer, who happens to be a woman. Cedric Maxwell, the analyst / sidekick on the Celtics broadcast team, proclaimed "Get back in the kitchen!" when she made the call. Max's partner, Sean Grande, tried to throw him a lifeline by pointing out that they had both been previously impressed by Palmer's officiating, but Max continued "Get back in the kitchen and fix me some bacon and eggs!"
Somewhat surprisingly, at least from my vantage point, neither the Celtics nor WEEI, which broadcasts Celtics games, will take any disciplinary action against Maxwell. Instead, he has agreed to apologize on-air. Just compare that "sanction" with the firing of former Fox baseball announcer Steve Lyons for, at worst, ambiguously negative comments about Latinos. I recognize that Lyons' had a bigger and national audience, that he had made other curious remarks in the past, and that Fox may have employed a stricter on-air policy than WEEI, but I still find the outcomes odd. Maxwell made an unquestionably sexist remark--should it really be tolerated without sanction? Is no suspension or even reprimand in order?
Along those lines, think about what Violet Palmer must feel whenever she makes a controversial call. As the only female referee in the NBA (and there are no female refs/umps in the NFL, NHL, or MLB), her gender--which obviously has no bearing on her talent--probably enters the minds of many of those who don't like the call, and some of those persons, apparently like Cedric Maxwell and his "fix me some bacon and eggs" line, occasionally might let that bias slip. God only knows what fans yell at her when they don't like her.
And no doubt, Violet Palmer's gender makes her job harder than it would otherwise be. A favorite target of Bill Simmons and other basketball writers, Palmer is routinely criticized for not being very good at her job. For instance, Simmons has written of Palmer:
Nobody has ever been worse at their job, in any vocation – not even the people who work at Home Depot selling Christmas trees. When Violet started officiating a few years ago, she was so incompetent, players and coaches actually avoided arguing with her – whenever she screwed up, they would always glance around helplessly, the same way you would if your puppy dropped a deuce on the living room carpet.
I'm not sure if that criticism is true, but assuming for a moment that it is, might Stanford social psychologist Claude Steele's research on stereotype threat be relevant? Stereotype threat reflects the behavioral effects that result from an individual's belief and fear that his or her actions will confirm a negative stereotype of a group to which he or she belongs. As I discuss in a work-in-progress on the Wonderlic Test, stereotype threat typically manifests in anxiety, which can impair performance and trigger a self-fulfilling prophecy: because of stress related to one's group membership, one underperforms, thereby unintentionally corroborating the underlying group stereotype. Thus, the situational presence of stereotype threat, rather than the person's aptitude, skill, or talent, may generate the behavior that confirms the underlying stereotype. As I write:
[M]inority undergraduates tend to perform less well academically when they believe there are achievement gaps relative to race. In a recent study of undergraduates, African-American students performed worse than their white classmates when told that they are taking an exam that measures “their intelligence.� However, they performed equal to white students on the same exam when told that they are taking an “experimental� exam.
Whether or not stereotype threat exists with Violet Palmer, it's clear that she has an unusually tough job. Granted, I know that no one forced her to take this job; she undertook it knowing, at least on some level, what she would be getting into (although that doesn't justify those problems). Moreover, I genuinely applaud the NBA--and, yes, Commissioner David Stern, who I often criticize--for being the first and still only major pro sports league to employ a female referee. But I hope that the league and its teams do all they can to ensure that her gender not be used to marginalize her or to interfere with her work, otherwise it would seem that she is being set up to fail. With that in mind, should there really be no sanction for a radio announcer who, on-air, says of Violet Palmer that she should "get back in the kitchen"? Are we in the year 2007 or 1947?
Update: see Jeffrey Standen's vigorous and thoughtful defense of Maxwell.
Posted By : Michael McCann
American University Soccer Player's $10 Million Tort Case Against Former DC United Star
Message posted on : 2007-02-28 - 07:42:00
Yesterday, the Washington Post covered an interesting lawsuit filed by a former soccer player from American University against the MLS franchise D.C. United, its owners, and a former player, Bulgarian superstar Hristo Stoitchkov.
In 2003, the AU college team played the United in a scrimmage. According to the Post story:The incident occured about 10 minutes into a scrimmage . . . during the [American University] Eagles' offseason and a few weeks before United's season opener. [The AU player] was preparing to take possession of the ball when Stoitchkov approached on the run and, in an apparent attempt to disrupt play, slammed his left foot into [the student's] right leg, which, according to the lawsuit, was planted on the field. Stoichkov, who according to the lawsuit, was angry that game officials did not disallow an AU goal moments before the tackle . . . -- was assessed a red card. Both coaches agreed to suspend the game. [The AU player] was removed by ambulance and, later that day, had a four-inch metal plate inserted in his leg.
Plaintiff now seeks $5 million in compensatory and $5 million in punitive damages. Stoichkov, now the Bulgarian national coach, was quoted by the Post's Soccer Insider blog:"I'll leave that to my lawyers but as far as I know this case is closed. I don't care what the press say. I am concentrating on my work in Bulgaria and the national football team."
Duke Sports Law expert Paul Haagen was interviewed for the story, and offered this observation. He offered this on-point observation:"What this will turn on is expectations -- the expectations of the participants, what the game was about and whether it went beyond those level of expectations . . . . Did the incident go beyond the normal course of the game?"
One wonders what expectations typically are for a scrimmage, as opposed to a competitive game. A player might expect and therefore assume risks in a competitive game that would not be a part of scrimmage play. I'll also be interested to see whether a court treats the AU player according to the less-plaintiff-friendly standard typically applied to professionals (in that he was playing against a pro team), or the more plaintiff-friendly standard that typically applies in amateur or recreational sports injury cases.
In any event, this seems like an odd case to expect punitive damages, since on the part of team and its investors there is certainly no "wanton and wilful" misconduct. As to Stoitchkov, it will depend on how aggravated his conduct is found to be.
HT to UT Law 3L Justin Stone for pointing me to the story.
Posted By : Geoffrey Rapp
Is Potato Sack Racing a "Contact Sport"?
Message posted on : 2007-02-27 - 11:43:00
As long-time readers of this blog know, one of my enduring sports law interests in the tort liability of participants in athletic events to one another (see posts on the subject here, here, and here). In many states, a "contact sports exception" applies to personal injury cases between co-participants in sports deemed to "inherently" involve contact. Co-participants can only recover from one another where the offender committed a "reckless" act, since the risk of negligence is viewed as an assumed risk of contact sports.
A key question that arises in cases implicating this legal rule is the line between contact and non-contact sports.
Now, an Ohio appellate court has sent a case back down involving an injury to a participant in a potato-sack race, ruling that such racing is not a contact sports. According to the Cleveland Plain Dealer story on the case:"Intentional tackling is not a customary part of the sport or activity of sack racing," said the appellate decision. "Sack racing is not a contact sport."
A new trial will decide if Martin LaMalfa, 43, of Concord Township, was negligent when he tackled cousin Anthony Aquila, 53, of Wickiffe, during the sack race Aug. 17, 2003, at a LaMalfa family reunion at the Outdoor YMCA in Perry Township.
"It is clear from the record that roughhousing between two grown men was done in a spirit of childlike competition between cousins which unfortunately due to their respective ages and physical limitations may negligently have caused some serious damage," the appellate court said in its opinion.
Having participated in just a few such races over the years, I'm not qualified to render an opinion on the level of contact typically expected in this activity. At least according to e-how, however, contact isn't a part of the rules of potato-sack racing.
Posted By : Geoffrey Rapp
Politics, Expression, and Basketball Arenas
Message posted on : 2007-02-27 - 07:07:00
True Hoop (which, having asked Mike to guest-post, must be regarded as the official non-law basketball blog of the sports-law world) reports on a story from The Stranger (which I gather is Seattle's weekly independent newspaper):
The campaign finance records I've reviewed show that Sonics/Storm co-owner Tom Ward has contributed $475,000 to Gary L. Bauer's Americans United to Preserve Marriage
And another Sonics/Storm co-owner, Aubrey McClendon, contributed $625,000.
During the last two election cycles, Americans United distributed $ 1.3 million, of which Ward and McClendon contributed $ 1.1 million. The group opposes same-sex marriage, which it insists "cheapens" the institution.
Neither Ward nor McClendon is the managing partner within the ownership group; that is Clayton Bennett, who apparently has not made such contributions. The Seattle Post-Intelligencer picked up the story here.
This new controversy raises a number of interesting issues.
First, there is the connection to Tim Hardaway's comments and the NBA's reaction to them. Should the league take similar action against these Sonics owners? As a private entity, the league could sanction anyone involved with it, without running afoul of the First Amendment. But I would be uncomfortable if the league began controlling what groups and ideas players, owners, and other league members can promote outside of their basketball roles. And Hardaway was dismissed from performing an official function in which he was speaking and acting on the NBA's behalf. Certainly the league has greater control over that than over what an active player says apart from his basketball functions.
But this leads to a second issue. If leagues are going to police what players, owners, and others say, do they need to be consistent? Is what Hardaway said that much worse than what Ward and McClendon are (through their financial support) advocating, such that you can punish Hardaway but not Ward and McClendon? Substantively, there is no difference between saying "I hate gay people" and "I want the law to deny gay people the same basic rights that I (and others like me) have." The former reflects an angrier, more emotional idea than the former. But both are anti-gay-rights points of view. In my view, both are fully protected expression and neither should be the basis for league-imposed punishment. But we too often get caught up in the way things are said, punishing an offensive way of saying something, while ignoring statements that express ideas that are just as troubling when they are stated in a softer way. I am not sure you can justify punishing one and not the other (although again, my preference is that you punish neither).
Third is the issue of how the controversy will affect the Sonics' efforts to secure $ 300 million in state and local funding for a new arena. Can legislators take into account the politics of some of the owners in deciding whether to approve this funding? On one hand, an instinctive notion is that government should not decide whether to award benefits on how a recipient exercises his First Amendment rights. Although doing so in this context would not, strictly speaking, violate any one's First Amendment rights, there is something troubling about public officials voting some way because of the recipient's unrelated political viewpoints.
On the other hand, they may not be so unrelated. The Sonics are asking
for (nee, demanding) a substantial amount of public funds towards an arena that the team insists is essential for the team to survive and thrive financially. It also argues that building the arena (and thus keeping the team in Seattle, rather than relocating to Oklahoma City) brings economic, social, and cultural benefits to the community (putting to one side the overwhelming consensus among economists that no economic benefits exist). But the arena also benefits the Sonics owners, Ward and McClendon among them--they have to spend $ 300 million less of their own money to gain this necessary asset; plus the arena almost certainly comes with a highly favorable lease that allows the team (i.e., the owners) to keep much of the arena-derived revenue (naming rights, seat licenses, parking, concessions, etc.).
Now, could a conscientious state or local legislator decide not to vote for a project that puts more money in the hands of two individuals who likely will use some of that money to advocate public policy positions that are anathema to the great majority of her constituents? I think the answer is yes.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-02-26 - 09:51:00
New this week:Michael J. Jurek, Note, Janitor or savior: the role of Congress in professional boxing reform, 67 OHIO STATE LAW JOURNAL 1187 (2006)
Shane Mecham, The house that consensus built: consensus building in stadium construction, 38 URBAN LAWYER 1087 (2006)
Posted By : Geoffrey Rapp
Chad Cordero: Wins Arbitration But Losses Autonomy?
Message posted on : 2007-02-23 - 16:47:00
Attorney Bryan Stroh (a former law school classmate whose practice includes sports law and who was also a pretty darn good baseball player at Princeton), passes along this link from MLB.com on Washington Nationals' closer Chad Cordero being pressured by his agent and the MLBPA into turning down a two-year guaranteed deal (said to be worth between $7 million and $8 million) from the Nationals. According to Cordero, both the MLBPA and his agent, Larry Reynolds, thought he would win his arbitration case, and that he would be making a big mistake by signing the two-year offer. They appear correct, as Cordero won his case, securing a $4.15 million contract for 2007; if the 24-year-old Cordero--one of the best young closers in baseball--has another terrific season, he would be poised to make even more in 2008.
But even though he won his arbitration case, Cordero doesn't feel good about being pressured into not signing the two-year contract offer:
"I don't know why I didn't sign [the two-year deal]," Cordero said. "I wanted to. The Players Association thought I had a good case and they wanted see how it turned out. Even if I lost my arbitration case, I wasn't going to lose. It's still a lot of money. It's still more money than I ever would have thought [I'd make]."
Assuming this media report of Cordero's feelings is accurate, what does it say about the role of the agent and the players' association? I understand that the players' association has a collective interest in trying to maximize salary averages for each position, and that Cordero's contract affects future contracts of other closers, but who is looking out for Cordero? He is, after-all, a member of the MLBPA; should he be dissuaded from his instinct, or was the MLBPA correct in taking a more guiding approach?
And what about his agent? On one hand, he probably gave his client advice that will enable him to make more money--perhaps a lot more money--but on the other hand, his client doesn't seem to feel too good about what happened. Rick has written extensively on this topic (e.g., his post Players Union Needs to Fix the Agent Business and law review article Solving Problems in the Player Representation Business: Unions Should be the Exclusive Representatives of the Players), and I would be interested in hearing his thoughts.
This topic also brings to mind that many players perceive significant value in non-monetary terms, such as getting to play in a particular part of the country or with a certain group of teammates. Sometimes players are moved by those non-monetary terms in ways that they don't fully appreciate (a subject which I examine in my article
Posted By : Michael McCann
Could a Gay NBA Player Sue for Hostile Work Environment?
Message posted on : 2007-02-23 - 13:34:00
A couple of days ago, Henry Abbot of True Hoop asked me to assume, for the sake of argument, that a handful of NBA players were gay and that many NBA players were anti-gay, and then examine whether the NBA, its teams, and/or executives could be vulnerable to a hostile work environment lawsuit. I opined that such a claim would be hard to prove based on what we know, and I explain why on True Hoop.
Also be sure to check out Howard's related posts on Sports Law Blog from earlier this week (2/21; 2/17).
Update on The Relevance of Title VII and Personal Jurisdiction: My good friend Paul Secunda, who blogs on Workplace Prof Blog and who is a labor and employment law professor at the University of Mississippi School of Law, e-mails me an important point that makes this type of claim even less likely: since sexual orientation is not a prohibited classification under Title VII, a gay NBA player bringing such a claim would very likely have to be employed by a team that plays its home games in one of the states or municipalities where sexual orientation discrimination is recognized--and since most states and municipalities do not recognize it, many NBA players could not bring a claim. But I asked Paul whether a player who does not play for such a team could make a personal jurisdiction argument based on the premise that all NBA teams--which are all part of joint venture called the NBA--avail themselves of the forums they travel to by playing games there, meaning a team traveling to the state of Washington (where sexual orientation is recognized) to play the Supersonics avails itself of that forum, but he does not believe that such an argument would work:
I think the answer would be the same as when you have a business traveler who spend much of the time on the road. You can engage in harassment or discrimination on the road, but the law that would apply to such situations is where the employer is located.
Thanks to Paul for this comment.
Posted By : Michael McCann
Equal Pay at Wimbledon: But Should Women Make More Than Men?
Message posted on : 2007-02-23 - 10:35:00
Paul Secunda over at Workplace Prof Blog discusses the world's most prestigious tennis tournament, Wimbledon, bowing to public pressure and agreeing to pay women players as much as the men. Wimbledon had been the last of the four Grand Slam Tournaments to pay men and women players unequally. Last year, the men's winner pocketed $1,170,000 while the women's winner received $1,127,000.
Gary Clark over at Sports Frog goes a step further and writes that women's tennis should have more lucrative prizes than men's since women's tennis--which still has volleys and long rallies--has become much more enjoyable to watch than men's. Many tennis observers agree that the men's game has become boring to watch with too many serves impossible to return; to some, the days of John McEnroe, Jimmy Connors, Mats Wilander, Stefan Edberg, and many others gracefully battling it out seem like a completely different sport than today's extreme power game.
Posted By : Michael McCann
One Step Forward - Two Steps Back
Message posted on : 2007-02-22 - 02:32:00
In a blog post three weeks ago, I asked the question whether progress on the minority NFL head coach hiring front had been realized. Now three weeks later, the answer to that question appears to be “probably not.� With the hiring of Norv Turner a few days ago by the San Diego Chargers, and the recent hiring of Wade Phillips by the Dallas Cowboys, we have two white coach retreads, who are both two time losers. Both Phillips and Turner have been hired as head coaches again after literally failing in previous stints as head coaches. Turner has posted a career won-loss record of 58 wins and 82 losses in head coaching stints with the Washington D.C. professional football club and the Oakland Raiders (overseeing winning seasons in only three of nine seasons as head coach). Phillips has posted a pedestrian career won-loss record of 48 wins and 39 losses in head coaching stints with the Buffalo Bills and the Denver Broncos (as well as an interim stretch with the Atlanta Falcons). That each man has been hired as a head coach once again, for a third time, is truly confounding.
Both the San Diego Chargers and the Dallas Cowboys followed the Rooney Rule, described in this space several weeks ago. Dallas interviewed at least three minority candidates, while the Chargers interviewed at least two. Mike Singletary and Ron Rivera, in fact, have been interviewed by a number of NFL franchises in the past two years, but have yet to land a top job. Why are twice fired, often times losing white coaches being recycled into virtual “winning� situations while prolific minority assistant coaches are being passed over (many would agree that the San Diego job is the best one in the NFL, while the Dallas job has the look of a sure winner)?
The hiring of Mike Tomlin by the Pittsburgh Steelers, with the Steelers one year removed from a Super Bowl title, appears to be one of the only times an African American head coach has been hired to coach a team poised to win, rather than being hired to resurrect a moribund franchise (see Tony Dungy in Tampa Bay, Marvin Lewis in Cincinnati, Romeo Crennel in Cleveland, Dennis Green in Arizona, Lovie Smith in Chicago, etc.). While Dennis Green, Ray Rhodes and Tony Dungy have been recycled (hired a second time) after being fired previously, both Green and Dungy had winning and exemplary records with the teams by which they were fired (Rhodes was 29-34-1 with the Eagles). It strains reality to imagine that an African American head coach with a 58-82 won loss record (exactly the same as Norv Turner) would ever be hired again as a head coach in the National Football League.
Still, the NFL clubs are owned by wealthy white males. They will continue to hire retread candidates and pray that one will turn into the “recycled� Bill Belichick who was run out of town after mostly failing for several seasons with the Cleveland Browns. Will the Rooney Rule be enough to break this outdated reality?
Posted By : dre cummings
Sport and the Meaning of Homosexuality
Message posted on : 2007-02-21 - 14:54:00
A commenter with the handle ChapelHeel makes an interesting point to the post about the reactions to John Amechi coming out. ChapelHeel tries to distinguish Tim Hardaway's anti-homosexual comments from Shavlik Randolph's statement that he was OK as long as Amechi (or anyone else) does not "bring your gayness of me."
ChapelHeel says, in part, as follows:
There are lots of people in America who are fine with gay people living a gay lifestyle, but do not want to be personally involved. Call it a middle ground of acceptance.
Let's assume Randolph is Jewish (based on his first name), and let's also assume he is heterosexual. Now suppose he said he was fine with Christians "as long as you don't bring you Christianity on me." Would we be upset? I doubt it.
So why do we get upset if we substitute "gayness" for Christianity when Randolph is heterosexual? Because it is the hot topic of the day.
I don't find his comment unenlightened. It is not as accepting as it could be, but it isn't non-acceptance. It is non-participation; and that's different.
This raises important issues about sexual orientation and the significance of having gay and straight professional athletes co-exist. And it also gets into some issues about the role of religion and sports, something I have been thinking about a great deal.
In the original post, I criticized Randolph's comment as incoherent because I really do not know what he meant by "bring your gayness on me." What is he talking about? As for suggesting it was unenlightened: I used that word not because Randolph's comment was antipathetic towards homosexuals; I was not using it in the political sense of intolerant towards gay people. In fact, if more people took the attitude of "gay people can do what they want and it does not affect me," we would all be better off.
But I think Randolph's statement is unenlightened in a different sense: Any meaning we can ascribe to it reflects a fundamental misunderstanding of sexuality and sexual orientation. As I see it, he could have meant any of three things.
Possibility # 1: Do not make me gay by being around me--as if it were catching. I think most of us can agree that sexual orientation is not akin to a communicable disease that can be passed around the locker room--that being around someone who is gay can "make you gay."
Possibility # 2: Do not try to make me gay by converting me to your homosexual lifestyle. This one gets a bit closer to ChapelHeel's religion comparison. The problem is that sexual orientation is not a choice; it is a genetically hardwired predisposition as to who or what one is sexually attracted. So the idea that Amechi might "convert" Randolph misunderstands this fact about sexual orientation. True, this point is subject to some scientific, social, and religious controversy about the ability to "cure" homosexuality. And the anti-rights movement speaks of a homosexual agenda involving "recruiting" of new members, especially children. But I think the weight of science is on my side on this one.
Possibility # 3: Do not hit on me; I am not gay and am not interested in having sex with you so don't approach me. I call this the "Get Over Yourself" Problem: Do not assume that, just because the man standing next to you is gay, he wants to have sex with you; you aren't that good-looking. Just like we would not (or at least should not) assume that the heterosexual woman standing next to us wants to have sex. (Although the rules of sexual attraction are quite different with professional athletes, but that was the
subject of Michael's post). If this is what Randolph meant, it is a bit presumptuous--and again reflects a misunderstanding of sexual orientation and what it means to be attracted to particular people.
Any of these three meanings is troubling in my view, for what it shows about Randolph's misunderstanding of homosexuality and sexual orientation.
But I do find this part of the issue interesting. While all the controversy has surrounded Hardaway's openly antipathetic comments, little attention has been paid to Randolph. But in many ways the worldview reflected in Randolph's comments is more troubling than the worldview reflected in Hardaway's. Randolph presents ideas that are fundamentally wrong about sexuality and sexual orientation, ideas that, if widely accepted, hold back the ability of openly gay athletes to exist and function in professional sport. But the ideas are presented in such benign, quasi-tolerant terms ("As long as I don't have to be involved, I'm OK with you doing what you want") that the danger of the underlying ideas gets buried. He is seen as being "accepting," as opposed to troublingly uninformed. At some level, rabid bigotry ("I hate gays") is easier to confront and less harmful.
Also, I take issue with ChapelHeel's suggestion that if a Jewish athlete (and my quick check says Randolph is not Jewish. And trust me: We are so starved for Jewish sports stars that we keep a very close watch on these things) requested that a Christian teammate "not bring his Christianity on me" we would not be upset. Actually, there would be an uproar from the Christian Right and the people on Fox News like you would not believe. The controversy over prayer at football games is precisely because non-Christian athletes and fans seek to avoid the bringing of Christianity on them--how is that working out? This is a separate and intriguing subject that I would like to discuss more in the future.
Finally, a personal note to ChapelHeel. Judging by the handle, I am guessing you are a UNC fan. I commend the fact that you declined to trash, and in fact defended well, a Dukie. That is enlightened.
Posted By : Howard Wasserman
Tuesday Sports Law Panel at Western Michigan University
Message posted on : 2007-02-20 - 15:10:00
On Tuesday, February 27 (next Tuesday), Rick, Bob McCormick (MSU Law) and I will be doing a panel on Sports Law for the undergraduate pre-law society at Western Michigan University. The event will be from 6:30-7:30 in Bernhard Center, Room 209 (PLEASE NOTE: UPDATED LOCATION), and we are planning to address the general topic of amateruism, pay, and unionization in college sports. Anyone in the Kalamazoo neighborhood, please feel free to attend since the event is open to the public.
Posted By : Geoffrey Rapp
Dice-K, Beer, and the Feds
Message posted on : 2007-02-20 - 11:01:00
A follow-up to Michael's post about Red Sox pitcher Daisuke Matsuzaka taking a sip of beer in a Japanese-language television ad running only in Japan. Michael focused more on the ethics of the ad and of the close ties between professional sports and alcohol. He suggests (as I believe to be the case) the the prohibition on depicting someone drinking alcohol on television is a voluntary network regulation, not a requirement from the FCC or the FTC or other federal regulatory agency.
Well, maybe not . . .
Ilya Somin of the Volokh Conspiracy discusses here the fact that the Alcohol Tobacco Tax and Trade Bureau ("ATTB") might be contemplating future punitive action against Dice-K because the ad violates its regulations prohibiting ads depicting athletes consuming (or about to consume) alcohol prior to or during competition or suggesting that drinking alcohol enhances health or athletic prowess.
Ilya quite rightly slams this as "inane overregulation." Putting to one side any First Amendment concerns (either under current doctrine or what the doctrine ought to be): The ad is not running in the United States or in a language that most people in the United States speak or understand. The federal government, not content with telling U.S. citizens what images they can see, now want to tell the people of Japan what images they can see.
Prediction: Any penalty imposed (and it remains a Big IF whether the ATTB will actually do anything) will be reversed because such extra-territorial application of U.S. law is disfavored.
Posted By : Howard Wasserman
Sports and the Rule of Law
Message posted on : 2007-02-19 - 21:31:00
At DorfOnLaw, there is an interesting post-and-comment exchange, started by Neil Buchanan, on how rules are applied in various sports. Neil's focus is the way the NBA openly and even proudly applies rules differently for superstar players. No other sport does this, at least not as openly. For example, I feel pretty certain that the strike zone is different for certain batters or certain pitchers, but MLB strongly denies this.
Interesting stuff. And it suggests that Chief Justice Roberts's argument that a judge should be nothing more than an umpire, perfectly clear and objective, applying clear rules precisely as written, is unworkable. Because, in reality, that is not what an umpire does.
Posted By : Howard Wasserman
Sports and the Rule of Law
Message posted on : 2007-02-19 - 21:31:00
At DorfOnLaw, there is an interesting post-and-comment exchange, started by Neil Buchanan, on how rules are applied in various sports. Neil's focus is the way the NBA openly and even proudly applies rules differently for superstar players. No other sport does this, at least not as openly. For example, I feel pretty certain that the strike zone is different for certain batters or certain pitchers, but MLB strongly denies this.
Interesting stuff. And it suggests that Chief Justice Roberts's argument that a judge should be nothing more than an umpire, perfectly clear and objective, applying clear rules precisely as written, is unworkable. Because, in reality, that is not what an umpire does.
Posted By : Howard Wasserman
Sports Law Prof to be New Baltimore Law Dean
Message posted on : 2007-02-19 - 12:20:00
Following on the news that Tulane's Gary Roberts will be assuming the deanship at IUPUI this summer, I pass on the bittersweet news that my colleague, and former UT Law dean Phil Closius, has been appointed the next dean at the University of Baltimore Law School. Phil was a great dean (after all, he hired me), and a great colleague, and Baltimore is lucky to get him. Baltimore is a school with a strong sports law history: former professor William Weston (former associate dean at Florida Coastal and now associate dean of Concord) founded the Association for Representatives of Athletes and Professor Dionne Koller teaches sports law there now. Phil is a former registered NFL player agent, officer of the AALS Section on Law and Sports, and has written a number of significant scholarly works on sports law (among other topics), including:Hell Hath No Fury Like a Fan Scorned: State Regulation of Sports Agents, 31 UNIVERSITY OF TOLEDO LAW REVIEW 511 (1999)
Involuntary Nonservitude: The Current Judicial Enforcement of Employee Covenants Not to Compete--A Proposal for Reform, 57 SOUTHERN CALIFORNIA LAW REVIEW 531 (1984) (with Henry M. Schaffer)
Not at the Behest of Nonlabor Groups: A Revised Prognosis for a Maturing Sports Industry, 24 BOSTON COLLEGE LAW REVIEW 341 (1983)
Congrats to Phil & to Baltimore!
Posted By : Geoffrey Rapp
I Want to Be Like Mike, Except in Bankruptcy Court
Message posted on : 2007-02-19 - 11:22:00
Last week, the U.S. Bankruptcy court overseeing the bankruptcy of Worldcom, Inc., dealt a blow to Michael Jordan in his effort to collect on unpaid endorsement fees, concluding that Jordan had failed to take mitigation efforts after Worldcom went under. See In re Worldcom, Inc., 2007 WL 446735 (Bkrtcy. S.D.N.Y., Feb 13, 2007).
Jordan had signed on as spokesman for MCI, then Worldcom, endorsing products like the pictured 10-minute phone card:In addition to a $5 million signing bonus, the Agreement provided an annual base compensation of $2 million for Jordan. . . . The Agreement provided that Jordan was to make himself available for four days, not to exceed four hours per day, during each contract year to produce television commercials and print advertising and for promotional appearances. The parties agreed that the advertising and promotional materials would be submitted to Jordan for his approval, which could not be unreasonably withheld, fourteen days prior to their release to the general public. From 1995 to 2000, Jordan appeared in several television commercials and a large number of print ads for MCI.
After Worldcom filed for bankruptcy in 2002, Jordan eventually sought payments of "$8 million--seeking $2 million for each of the payments that were due in June of 2002, 2003, 2004, and 2005."
The case itself turns on a number of bankruptcy law issues, such as whether Jordan was an employee or an independent contractor (the court ruled the latter) or whether Jordan had no obligation to mitigate his damages as a "lost volume seller."
The interesting part of the opinion is the court's discussion of Jordan's failure to mitigate his damages by seeking additional endorsements to cover the period after Worldcom went under. According to the court, Jordan's agent, David Falk . . . , testified that "there might have been twenty more companies that in theory might have wanted to sign him" but that Jordan and his representatives wanted to avoid diluting his image.
Jordan's financial and business manager, Curtis Polk, admitted that Jordan did not return to the endorsement marketplace to try and replace the revenue he was to be paid under the Agreement. . . . Polk explained that Jordan did not wish to expand his "pitchman efforts with new relationships" because of his primary goal of becoming the owner of an NBA team.
Jordan argued that his pursuit of NBA ownership relieved him of an obligation to mitigate damages by seeking other endorsement opportunities. The court didn't buy it:In short, the argument that Jordan acted reasonably by focusing solely on his efforts to become an NBA team owner is a red herring. It may have been reasonable for Jordan to focus on becoming an NBA team owner in the scope of Jordan's overall future desires but that does not mean it can support a determination that he was relieved of his obligation to mitigate damages in response to MCI's rejection of the Agreement.
Furthermore, Jordan did not have to pursue any endorsement, such as one that would be beneath a celebrity of Jordan's stature, e .g., endorsing a product likely to be distasteful to Jordan or his fans. Jordan had the duty to take reasonable efforts to mitigate, such as by seeking another endorsement for an established, reputable company for compensation near to what he received from MCI. MCI has established that there is no genuine issue as to whether Jordan made reasonable efforts to do so. The Court finds that as a matter of law Jordan has failed to mitigate damages.
Posted By : Geoffrey Rapp
Tom Brady to Father Child Out-Of-Wedlock: What Does It Mean?
Message posted on : 2007-02-19 - 00:07:00
Before I discuss today's news about New England Patriots quarterback Tom Brady, I thought it would be helpful to first examine legal and sociological trends relating to the subject du jour: out-of-wedlock children.
Since the 1970s, out-of-wedlock births in the United States have soared, as about 37% of all American children are now born without married parents, in contrast to less than 10% in the 1960s and less 5% in the 1950s. There are many possible explanations for this increase, such as change in attitudes toward sexual behavior, less social pressure to get married, fewer legal constraints to divorce, and other theories carefully studied in George A. Akerlof & Janet L. Yellen's "An Analysis of Out-Of-Wedlock Births in the United States" (Brookings Institution) and more ideologically, though nonetheless thoughtfully studied in Patrick F. Fagan's "Where is the Love?" (National Review).
Thankfully, every state has passed laws to ensure that these children enjoy the same legal protections as other children. For instance, Chapter 209c of the Massachusetts General Laws commands that "Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children." Moreover, the social stigma attached to a child born out-of-wedlock has dissipated considerably in modern times.
Celebrities and entertainers--perhaps only because we notice their lives--seem to display a particular penchant for having children out-of-wedlock. We all followed the birth of Suri Cruise to her (at the time) unwed parents, Katie Holmes and Tom Cruise. Less famously, but still notably, award-winning actress Patricia Arquette of the show Medium has two children out-of-wedlock, as does actor/musician/freerider Kevin Federline. And of course, the nation is closely following the legal battles over which of three men could be the father to the late Anna
Nicole Smith's baby girl, Danielynn.
Professional athletes and their out-of-wedlock children have also received public notice. Indeed, reports persist that many NBA players have fathered children out-of-wedlock. Consider, for instance, former NBA player Shawn Kemp, who is said to have fathered at least seven kids out-of-wedlock. Or consider Larry Bird, who was otherwise adored by Bostonians but received some critique for not having a relationship with a daughter he fathered out-of-wedlock. Similar stories have been said of MLB, NFL, and NHL players, some of whom have been sued for failing to pay child support.
So it probably shouldn't come as a surprise to learn that another pro athlete, this time Tom Brady, is going to father a child out-of-wedlock. The mother of his child is actress Bridget Moynahan, whom Brady broke up with two months ago, right before Christmas. Brady is now said to be dating supermodel Gisele Bundchen. He will certainly have the financial wherewithal to pay child-support, and unless there is question as to whether he is the father (and there is no indication of that), then this story will not attract legal attention.
But still, one might say that there is a glaring--if entirely predictable--disconnect between how the New England Patriots, and in particular their "brilliant" head coach Bill Belichick and "All-American" quarterback Tom Brady, are revered for their on-field exploits and how their personal lives do not seem nearly as laudable. We've talked about Belichick's alleged extra-marital affair with a New York Giants secretary, and now we see Brady set to father a child with a woman he recently dumped. That only brings to mind Charles Barkley's famous line, "I am not a role model." And it's a powerful reminder that no matter how graceful and inspiring they appear on-the-field, pro sports personalities are just regular folks, with the same vices, flaws, and other defects that all people have, expect, possibly, greater capacity and temptation to act on them.
Posted By : Michael McCann
Being John Amechi, but not being Tim Hardaway
Message posted on : 2007-02-17 - 11:21:00
I have waited a couple of days to blog about John Amechi's new book in which he announces that he is gay (the first active or retired NBA player to come out). Or about the nuclear explosion in the wake of former All-Star Tim Hardaway's statements on a Miami radio program this week:
"You know, I hate gay people, so I let it be known. I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States."
It only has gotten worse for Hardaway as his recent attempts at damage control have included apologies, non-apologies, and the statement that he would disown a gay family member. The NBA dismissed Hardaway from his official role in All-Star Weekend events. It remains to be seen what becomes of his broadcast job.
I do not have a coherent picture to paint of this incident, other than to store it as another example of how free expression plays out in sport. For now, though, some totally random thoughts:
First, Hardaway's comments took the spotlight off the previous leader in the "What Were They Thinking When They Said That?" Competition: the Sixers' Shavlik Randolph, who said, when asked about Amechi's revelations, that he was fine with it "as long as you don't bring your gayness on me." This one is funny, just because I have no idea what it means. I am not sure if Randolph meant: a) Don't have your sexual orientation rub off on me, like a cold or b) Don't hit on me. Either way, nothing like a couple years as a student at Duke to give someone a nuanced, enlightened understanding of the world.
Second, I cannot tell what impact Amechi coming out will have. It should drive home the point that there are gay professional athletes out there. And it makes some sense that the first player to come out is not a superstar, but a journeyman who has less to lose by bringing the political issue to the fore.
Third, this incident is a good barometer of where American society and sport (as its own insular society) is on this issue and how far we have to go. On one hand, the initial (pre-Hardaway) positive reaction to the revelation by current and former players suggests a level of acceptance that, perhaps, is higher than we might have expected. Maybe professional team sport is ready for an openly gay athlete--as opposed to the closeted gay athletes who, statistically speaking, are already in the locker room.
On the other hand, Hardaway's comments--blunt, abrasive, and offensive though they may be--may be an accurate reflection of the majority view among NBA players. Men's sports, especially men's team sports, remain (along with the military) the last bastion of high-testosterone, hierarchical, male-bonding machismo, with which homosexuality is (perceived to be) incompatible. I get the sense (with no real empirical or evidentiary support, just a feeling) that women's sports is a little more accepting of lesbian athletes and coaches (the controversy at Penn State notwithstanding). Actually, society in general is more accepting of lesbians than gay men. The point is, maybe we are not as far along as we would like to think.
Fourth, Hardaway actually deserves some credit for his honesty. I believe he holds those beliefs about homosexuality deeply and sincerely (although I do not know their source). And again, I believe many athletes hold similar (if less sharply stated) beliefs. But I am convinced there is a benefit to hateful thoughts being brought to the surface, to knowing who holds those ideas and to being able to respond to them (as the NBA and much of the media has done). I
also may be unique in actually preferring that Hardaway not apologize, that he stick to his beliefs (and let me know what they are) and bear the consequences of those beliefs. (As a side note, I have said the same thing about those who express hateful views, and then try to half-apologize in the wake of an angry response, about groups of which I am a member).
Fifth, I do feel bad for Hardaway that his world is falling down around him, because (listening to the radio interview) it sounds like he did not quite know what he was walking into. I am not suggesting that he was ambushed or that he is being treated unfairly. Only that he seems not to have given much thought to the real-world consequences of his statements. There may be something to a column that ESPN's Jeff Pearlman wrote several months ago, suggesting that we ought not look to athletes for political ideas, because many (not all, but many) live in a highly insulated world.
It is hard not to think of Al Campanis, whose long career as a scout and executive for the Dodgers (the team that lead the way in integrating baseball) ended abruptly in 1987 with some ignorant and incoherent (but far less hate-filled) comments about African-Americans lacking the "necessities" to be managers and general managers.
On the other hand, Campanis did kick-start the conversation that has lead, too slowly I admit, to improvements in the number of minorities in management and executive positions. Maybe this controversy will, in the end, advance the cause of gay athletes.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-02-16 - 11:55:00
Lots of good stuff this week, thanks in large part to our friends at Marquette and Tulane:Danette R. Davis, The myth & mystery of personal seat licenses and season tickets: licenses or more?, 51 ST. LOUIS UNIVERSITY LAW JOURNAL 241 (2006)
Ian Dobson, The wrong gameplan: why the Minnesota Vikings' failure to understand Minnesota's value dooms their proposal for a new stadium and how the team can improve its future chances, 33 WILLIAM MITCHELL LAW REVIEW 485 (2006)
Cristen F. Hartzog, Note, The “public use� of private sports stadiums: Kelo hits a homerun for private developers, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOY LAW 145 (2006)
Michael J. Cramer and James M. Swiatko, Jr., Did Major League Baseball balk? Why didn't MLB bargain to impasse and impose stricter testing for performance enhancing substances?, 17 MARQUETTE SPORTS LAW REVIEW 29 (2006)
Casey Shilts, Kate Jett & Brett Lashbrook, Major League internationals with Minor-League titles: let them in. Let them play. 17 MARQUETTE SPORTS LAW REVIEW 69 (2006)
J. Gordon Hylton, The Major League Baseball Players Association and the ownership of sports statistics: the untold story of round one, 17 MARQUETTE SPORTS LAW REVIEW 87 (2006)
Robert H. Lattinville & Robert A. Boland, Coaching in the National Football League: a market survey and legal review, 17 MARQUETTE SPORTS LAW REVIEW 109 (2006)
Martin J. Greenberg, Termination of college coaching contracts: when does adequate cause to terminate exist and who determines its existence? 17 MARQUETTE SPORTS LAW REVIEW 197 (2006)
Timothy Davis, Avila v. Citrus Community College District: shaping the contours of immunity and primary assumption of the risk, 17 MARQUETTE SPORTS LAW REVIEW 259 (2006)
Patricia A. Cervenka, Free shoes for primary and secondary schools: playing by the rules of Title IX, 17 MARQUETTE SPORTS LAW REVIEW 285 (2006)
Janis K. Doleschal, Managing risk in interscholastic athletic programs: 14 legal duties of care, 17 MARQUETTE SPORTS LAW REVIEW 295 (2006)
Anne M. Wall, Intellectual property protection in China: enforcing trademark rights, 17 MARQUETTE SPORTS LAW REVIEW 341 (2006)
Lindsay M. Potrafke, Comment, Checking up on student-athletes: a NCAA regulation requiring criminal background checks, 17 MARQUETTE SPORTS LAW REVIEW 427 (2006)
James M. Swiatko, Jr., Index: Sports Law in Law Reviews and Journals, 17 MARQUETTE SPORTS LAW REVIEW 451 (2006)
Nikki Dryden, For power and glory: state-sponsored doping and athletes' human rights, 13 SPORTS LAWYERS JOURNAL 1 (2006)
Sean M. Hanlon, Athletic scholarships as unconscionable contracts of adhesion: has the NCAA fouled out?, 13 SPORTS LAWYERS JOURNAL 41 (2006)
Robin M. Preussel, Successful challenge, ruling reversed: why the Office of Civil Rights' survey proposal may be well-intentioned but misguided, 13 SPORTS LAWYERS JOURNAL 79 (2006)
Jay T. Cohen, Comment, I'll trade you Scott Podsednik for Alex Rodriguez: fantasy trademark and copyright protection, 13 SPORTS LAWYERS JOURNAL 133 (2006)
Michael Levinson, A sure bet: why New Jersey would benefit from legalized sports wagering, 13 SPORTS LAWYERS JOURNAL 143 (2006)
Anders Etgen Reitz, The NHL lockout: the trickle-down effect on European hockey, 13 SPORTS LAWYERS JOURNAL 179 (2006)
Jeffrey Hoffmeyer, Note, Fourth down and an appeal: the nonstatutory exemption to antitrust law, 13 SPORTS LAWYERS JOURNAL 193 (2006)
Antoinette Vacca, Boxing: why it should be down for
the count, 13 SPORTS LAWYERS JOURNAL 207 (2006)
Bram A. Maravent, Is the Rooney Rule affirmative action? Analyzing the NFL's mandate to its clubs regarding coaching and front office hires, 13 SPORTS LAWYERS JOURNAL 233 (2006)
Jenni Spies, “Only orphans should be allowed to play Little League�: how parents are ruining organized youth sports for their children and what can be done about it, 13 SPORTS LAWYERS JOURNAL 275 (2006)
Tulane Moot Court Mardi Gras Invitational, Problem and Winning Brief, 13 SPORTS LAWYERS JOURNAL 291 (2006)
Posted By : Geoffrey Rapp
The Peculiarities of Beer Advertising and Major League Baseball
Message posted on : 2007-02-16 - 11:38:00
A new commercial in Japan for Asashi Beer--Japan's highest selling "biru" or beer--features Red Sox pitcher Daisuke Matsuzaka chugging down a cold Asashi. The ad also features Matsuzaka in his Red Sox uniform.
The ad has drawn some attention since Major League Baseball does not allow its players to endorse alcohol domestically, although that rule does not apply to international markets. (also, and not relevant to this post: the ad would not be allowed in the U.S. because industry actors voluntary refrain from televised images of persons consuming alcohol). The basic thinking behind MLB's domestic ban is that beer is a potentially dangerous product and MLB doesn't want its players to promote it--particularly because young persons watching beer ads are more likely to drink, and MLB doesn't want to exacerbate the problem.
Fair enough. But if MLB is so worried about beer ads, why does it allow beer companies to advertise their products during games? Beer companies, in fact, love to air commercials during sporting events--and these ads have been found to expose children to dangerous behaviors. Consider the following findings from the December 2006 issue of the Journal of the American Academy of Pediatrics and from Bradley S. Greenberg and Sarah F. Rosaen in their article Television and Young People: Violence, Sex, Booze, and Greed, 2005 Michigan State Law Review 857 (2005)Alcohol manufacturers spend $5.7 billion/year on advertising and promotion. Young people typically view 2000 beer and wine commercials annually, with most of the ads concentrated in sports programming. During prime time, only 1 alcohol ad appears every 4 hours; yet, in sports programming, the frequency increases to 2.4 ads per hour. Research has found that adolescent drinkers are more likely to have been exposed to alcohol advertising. Given that children begin making decisions about alcohol at an early age—probably during grade school—exposure to beer commercials represents a significant risk factor. Minority children may be at particular risk. ----Committee on Communications, Children, Adolescents, and Advertising, 118 Pediatrics 2563-2569 (2006)).
Alcohol ads appear about once every four hours during prime-time programming, 2.4 times per hour during sports programs, and about three times per hour for ads that are within sports programs, like billboards in a stadium. On popular teen and adult TV shows, alcohol is consumed in 71 percent of all programs and 65 percent of teen programs, but only 23 percent of the episodes associated alcohol with negative consequences. These depictions are of interest because modeling occurs more often when behaviors are unpunished, according to social learning theory.
Heavy exposure to alcohol advertising leads to the view that
drinkers possess the positive qualities displayed-such as being attractive, having positive attitudes about drinking, drinking heavily and thinking that it is acceptable, and driving after drinking. In fact, the American Academy of Pediatrics found that 80 percent of young people think drinking is acceptable if there is a designated driver.
----Bradley S. Greenberg and Sarah F. Rosaen, Television and Young People: Violence, Sex, Booze, and Greed, 2005 Mich. St. L. Rev. 857 (2005).
Also, why do MLB and each individual team have official beer sponsors? And why can you buy beer mugs and glasses on MLB.com? And why do big league teams sell to beer companies the naming rights to certain seats, such as the Washington Nationals' Miller Lite Beer Pen? Heck, if beer is such a worry to MLB, why is it even sold at games?
Now, I recognize that there is a distinction between players affirmatively endorsing a product and the league licensing its name to be used in a product ad. I suppose one could argue that the former seems more "active" and a greater reflection of the league itself. But I'm not sure that distinction is so strong or even correct. After-all, why would those companies pay MLB lots of $$ if those licenses weren't valuable?
Along those lines, if MLB really wants to deter kids from getting hurt, why doesn't it prohibit smokeless tobacco?
Posted By : Michael McCann
Sports Litigation Panel with Alan Milstein and James Carroll
Message posted on : 2007-02-14 - 20:20:00
So you want to go into sports law, but don't want to become an agent?
Well one avenue is to become a sports litigator or, more realistically, a litigator whose clients include sports persons or sports businesses/entities.
If that sounds interesting and if you are near Jackson, Mississippi, next Monday at Mississippi College School of Law we will have two of the most prominent sports litigators in the country give a talk on their work and getting into the sports litigation industry: Alan Milstein, who represented Maurice Clarett in Clarett v. NFL and two disabled jockeys in King v. Jockeys' Guild, and Jim Carroll, who represented Jerrell Powe in his legal efforts to play at Ole Miss. (See previous posts on Powe: Jerrell Powe Sacks the NCAA on 8/31/2006 & Jerrell Powe Drops Lawsuit Against Ole Miss on 9/17/2006).
Here are some details on the event and please do not hesitate to contact me with any questions if you would like to attend:
Sports Litigation Panel
A Discussion With Lead Attorneys from Maurice Clarett v. National Football League, Edwin King & Gary Donahue v. Jockeys' Guild, and Jerrell Powe's Litigation/Negotiation with Ole Miss and the NCAA
Hosted by the Mississippi College School of Law Sports and Entertainment Law Society.
Date: February 19, 2007, from 11:45 a.m. to 1:00 p.m, in the Student Conference Center of Mississippi College School of Law, 151 East Griffith Street, Jackson, MS (directions available
here).
Details/Panelists: Professor McCann will moderate a discussion with two nationally-recognized litigators, both of whom have litigated on behalf of athletes in recent cases that have changed sports law. Food will be served at this event.
Professor Michael McCann (Moderator). Assistant Professor of Law, Mississippi College School of Law; Chair-Elect, AALS Section on Sports and the Law; and Co-Founder, The Project on Law and Mind Sciences at Harvard Law School. Professor McCann holds an LL.M. from Harvard Law School, a J.D. from the University of Virginia School of Law, and a B.A. from Georgetown University. While a Visiting Scholar/Researcher at Harvard Law School, he worked for Alan Milstein in Clarett v. National Football League.
Alan Milstein. A partner at Sherman Silverstein Kohl Rose & Podolsky in Pennsauken, New Jersey, Mr. Milstein holds a
J.D. from Temple University School of Law, M.A. from the University of Kansas, and B.A. from the University of Maryland. He litigated on behalf of Maurice Clarett in Clarett v. National Football League, a case involving a prominent college football player seeking early entry into the NFL. He also litigated on behalf of two jockeys in King v. Jockeys' Guild, a case involving disabled jockeys who were denied disability funds from their guild. He periodically represents other professional athletes in litigation.
James Carroll. A partner at Carroll, Warren & Parker in Jackson, Mississippi, Mr. Carroll holds a J.D. from the University of Mississippi School of Law and a B.A. from Millsaps College. He litigated and negotiated on behalf of Jerrell Powe, a prominent high school football player seeking to attend the University of Mississippi and play for their football team, but who ran into objections from the NCAA over academic eligibility.
Posted By : Michael McCann
Performance Enhancements in NASCAR
Message posted on : 2007-02-14 - 10:15:00
AP auto racing writer, Jenna Fryer, reports that NASCAR, in an effort to crack down on cheaters, made its strongest statement to date by suspending the crew chiefs for drivers Matt Kenseth, Kasey Kahne, Scott Riggs and Elliott Sadler and docked all four drivers points before the season-opening Daytona 500 ("Crew Chiefs Suspended for Daytona 500"). All four cars failed qualifying inspection. Two of the crew chiefs each received a 4-race suspension and a $50,000 fine, and the other two each received a 2-race suspension and a $25,000 fine. According to Fryer, "all four drivers will start the season with negative points - a move that most likely infuriated the teams, but sent a strong message that NASCAR will no longer tolerate rule-breakers." Another driver, Michael Waltrip, who had a car part seized and shipped back to North Carolina for further analysis, is also under investigation.
Here are some excerpts from the article:
But after three cars failed inspection during Sunday's qualifying session, NASCAR decided it had up the ante to deter teams from continuously pushing the envelope....Still, NASCAR stopped short of kicking the teams out of the race, a move many believe would be the ultimate punishment. "We're going to get tough with the competitors when they push the credibility of the sport," France said Tuesday during his state of the sport address.... Kenseth and Kahne had their qualifying times thrown out after inspectors discovered illegal holes in the wheel wells, which could have improved aerodynamics. Evernham maintained the holes had been covered with duct tape that apparently fell off before the Dodge was inspected. But Pemberton said NASCAR believed the tape had been cut. Riggs and Sadler's cars both had modifications that allowed air to leak out of the trunk area. It was discovered before qualifying and had not been announced by NASCAR before Tuesday. Waltrip, meanwhile, had a suspicious substance in the intake manifold of his Camry. The part was seized before qualifying, and the car was impounded after the session.
Reading the article, I couldn't help but draw some analogies to steroid usage. So I wonder what the future has in store for NASCAR? Fast forward ten years from now:
- Congress calls upon NASCAR to inspect cars more frequently and impose stiffer penalties upon drivers. According to one congressman, "It's outrageous that NASCAR for years has failed to include nitroid on its list of banned parts. I can remember the days when Dale Earnhardt's only competitive advantage was a fresh can of Quaker State."
- Despite the fact that Danika Patrick's car has never been inspected positively for nitroid usage, NASCAR fans begin to seriously question her success in recent years, especially her string of consecutive Nextel Cup titles. One sports writer notes that Patrick was never that successful in her early racing years and says that "she never exhibited those sudden bursts of acceleration at the finish line like she does today." However, Patrick insists that she has become a much more experienced driver on the track over time as a result of vigorous training and participation in many championship racing events. Patrick has lost many endorsement opportunities and it's questionable whether she will ever be inducted into the NASCAR Hall of Fame.
- Two sports writers from Daytona Beach publish a book entitled, "A Race of Shadows," which includes anonymous individuals who assert that Jeff Gordon has
been using nitroid in recent years despite the lack of any positive inspections. The speculation has become so great that reports have surfaced that the France family may not attend the race in which Gordon will surpass Richard Petty for the most wins.
- Gordon testifies in front of a grand jury that he thought he was pouring fuel cleaner in his car, not nitroid. Thereafter, federal investigators raid the computers of Gordon's mechanics and in the process confiscate thousands of computer files on other drivers' cars. Congress imposes mandatory nitroid inspections, and the Supreme Court for the first time addresses the issue of whether a car is "an extension of oneself" for purposes of the Fourth Amendment.
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2007-02-12 - 20:14:00
New this week:Diane Heckman, One Nation, Under God: freedom of religion in schools and extracurricular athletic events in the opening years of the new millennium, 28 WHITTIER LAW REVIEW 537 (2006)
Lindsay A. Oliver, NCAA: a lesson in cartel behavior and antitrust regulation, 8 TRANSACTIONS 7 (2006)
Posted By : Geoffrey Rapp
Should an honorable bonehead get to change his name to "Peyton Manning"?
Message posted on : 2007-02-12 - 10:30:00
Via Above-the-Law, the press reports that Chicago Bears fan Scott Wiese has filed papers to change his name to "Peyton Manning" after losing an unspecified Super Bowl bet:Wiese, a die-hard fan of the Chicago Bears, signed a pledge in front of a crowd at a Decatur bar last Friday night that if the Bears lost Sunday's Super Bowl, he'd change his name to that of the man who led the Indianapolis Colts to victory.
Final Score: Colts 29, Bears 17.
So on Tuesday, Wiese went to the Macon County Courts Facility and started the process of changing his name.
"I made the bet, and now I've got to keep it," said the 26-year-old, who lives in Forsyth, just north of Decatur.
From a legal perspective, I'm not sure he's bound to keep it (Contracts experts please chime in), but there's also the issue raised in some commentary of whether he's allowed to change it. Perhaps a certain Colts QB will have something to say about whether he's got a protectable property interest (right of publicity) in his good name. Illinois law (see 735 ILCS 5/21-101) provides:If any person who is a resident of this State and has resided in this State for 6 months desires to change his or her name and to assume another name by which to be afterwards called and known, the person may file a petition in the circuit court of the county wherein he or she resides praying for that relief. If it appears to the court that the conditions hereinafter mentioned have been complied with and that there is no reason why the prayer should not be granted, the court, by an order to be entered of record, may direct and provide that the name of that person be changed in accordance with the prayer in the petition. . . .[A]ny person convicted of a felony in this State or any other state who has not been pardoned may not file a petition for a name change until 10 years have passed since completion and discharge from his or her sentence. A person who has been convicted of identity theft, aggravated identity theft, felony or misdemeanor criminal sexual abuse when the victim of the offense at the time of its commission is under 18 years of age, felony or misdemeanor sexual exploitation of a child, felony or misdemeanor indecent solicitation of a child, or felony or misdemeanor indecent solicitation of an adult, or any other offense for which a person is required to register under the Sex Offender Registration Act in this State or any other state who has not been pardoned shall not be permitted to file a petition for a name change in the courts of Illinois. . . .
No word on whether Mr. Manning nee Wiese has a felony record (although if he's the same Scott Wiese that participated in this this U-Wisconsin science fair, that seems unlikely)...
Posted By : Geoffrey Rapp
Pound for Pound and Non-Analytic Positives
Message posted on : 2007-02-11 - 21:47:00
The latest chapter in the Dick Pound saga unfolded quietly on Friday. Back in 2005, Lance Armstrong filed a complaint with the International Olympic Committee ("IOC") Ethics Commission after Pound, the head of the World Anti-Doping Agency, had publicly stated that there was "a very high probability" that Armstrong had used EPO during the 1999 Tour de France. On Friday, the IOC endorsed the commission's finding that Pound's remarks "could have been regarded as likely to impugn the probity" of Armstrong and were inconsistent with the IOC's goals of "a spirit of friendship, solidarity, and fair play." The commission also recommended that Pound be "remind[ed]...of the obligation to exercise greater prudence...when making public pronouncements that may affect the reputation of others."
Pound has often been criticized for publicly condemning athletes accused of doping violations prior to any formal findings of guilt. After Justin Gatlin and Floyd Landis (or, as Pound has called him, "Roid Floyd") each tested positive for abnormal levels of testosterone, Pound wrote a particularly inflammatory column in the Ottawa Citizen, stating:
We will have to wait for the United States Anti-Doping Agency (USADA) to organize an appeal process, since both are American athletes, before any formal sanction can be pronounced. Who knows, USADA may subscribe to a suggestion that both athletes, in separate sports, were ambushed by a roving squad of Nazi frogmen and injected against their will with the prohibited substances.
Pound is rarely shy when discussing drug use in sports. In any sport. Referring to Landis' allegedly elevated testosterone level during the Tour de France: "You'd think he'd be violating every virgin within 100 miles. How does he even get on his bicycle?" About the entire sport of cycling: "Take cycling in 2006. If 2006 were to be measured in the Chinese cycle, it would be the year of the Excrement." About the National Hockey League: "The NHL has reached a deal with their players that looks as though they found an early copy of the baseball policy on the floor somewhere." Pound then estimated that 1/3 of all NHL players used steroids, and when later asked for the basis of his estimate, explained: "It was pick a number....So it's 20 percent. Twenty-five percent. Call me a liar."
Pound, and WADA itself, have come under attack for what the LA Times has described as "a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals or challenges."
Yet, Pound continues to insist that WADA needs to "use every weapon"
necessary to eliminate doping in sports– including the use of "non-analytic positives," or findings of violations based on circumstantial evidence rather than actual positive drug tests. (The general issues surrounding the use of non-analytic positives has been discussed in two law review articles--Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006); and Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by "non-analytical" cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006)). Non-analytic positives have been accepted by the Court of Arbitration for Sport ("CAS"), causing Pound to remark: "Finally a stake has been driven through the heart of the preposterous argument that you have to have a doping infraction by producing an analytical positive doping test." While Pound's use of the media continues to create controversy, his push for greater use of non-analytic positives might cause the greatest stir of all. It will be interesting to see, particularly in light of BALCO and Congress' "renewed support" for George Mitchell's steroid probe in baseball, if U.S. lawmakers make any attempt to pressure the leagues and players associations into adopting non-analytic positive standards in their drug testing policies.
Posted By : Gabe Feldman
New Sports Law Scholarship
Message posted on : 2007-02-10 - 14:02:00
Jeffrey Dunlop, Comment, Taxing the international athlete: working toward free trade in the Americas through a multilateral tax treaty. 27 NORTHWESTERN JOURNAL INTERNATIONAL LAW & BUSINESS 227 (2006)
N. Jeremi Duru, Fielding a team for the fans: the societal consequences and Title VII implications of race-considered roster construction in professional sport, 84 WASHINGTON UNIVERSITY LAW REVIEW 375 (2006)
Sue Ann Mota, Title IX, the NCAA, and intercollegiate athletics, 33 JOURNAL OF COLLEGE & UNIVERSITY LAW 121 (2006)
Posted By : Geoffrey Rapp
Virginia Sports and Entertainment Law Journal Symposium
Message posted on : 2007-02-09 - 20:11:00
Scott Dorfman of Virginia Law Weekly has an excellent recap of last week's sports and entertainment law symposium hosted by the Virginia Sports and Entertainment Law Journal and Virginia Continuing Legal Education. A number of Sports Law Blog readers were there, but for those of you who missed it, the recap does a nice job highlighting what was an outstanding event--in terms of substance, attendance, organization, really everything. For more on the symposium, check out this previous posting on our blog.
Update: In that same Virginia Law Weekly, I noticed that a columnist named Jerry Parker has an important column entitled "Why I Hate Peyton Manning." Check it out.
Posted By : Michael McCann
Accountability, Independence, and Finality (or Duke, Clemson, and Pine Tar)
Message posted on : 2007-02-08 - 14:28:00
Some of the comments to the post about O.J. Mayo have drifted to the issue of leagues and athletic associations scrutinizing game officials for their calls. I have discussed my concerns that having leagues looking over officials' shoulders makes the latter unable to do their jobs. On the other hand, some performance review is necessary to make sure officials are doing their jobs well and properly. This is the sports equivalent of the political debate between judicial accountability and judicial independence.
The line I suggest is that leagues and supervisors cannot interfere with the outcome of the game. There is a benefit, in sports as well as law, to finality of a result--once a game (or a case) has become final, bodies other than the court (i.e., game officials) should not interfere with that result. Even if we disagree with the result or with a decision or call by the official that lead to the result. This is, I think, especially true for discretionary decisions--did Mayo do something that warranted a technical foul for taunting?
Law generally agrees with this. Once a judicial decision becomes final (i.e., all layers of appeal and review have been exhausted), the legislature cannot undo or change that result or order the case done over. And leagues generally abide by this same notion.
We can see this from the ACC's response to last month's clock controversy in the Clemson-Duke men's basketball game. As you may recall, the game official delayed starting the clock on a play with 5 seconds left, giving Duke an extra 2+ seconds at the end of the game to get the ball up-court for a game-winning shot. There otherwise would not have been enough time to run the same play, meaning the game likely would have gone into overtime. (Via Deadspin here). The ACC admitted that an error was made, but in Deadspin's words, "after much careful consideration, have decided, 'fuck it.'"
Which was the entirely proper response. What else could they have done: Send everyone back to Cameron and pick up the game with the right amount left on the clock? Replay the entire game? Plus, there no doubt were many calls and non-calls throughout the game, some right and some wrong. Should all of them be up for review? And how can we tell which ones did or did not determine the outcome. Of course, this makes one wonder why the league bothered announcing that the officials had made a mistake, given that they could not do anything about the call with respect to the game.
Now, should the officials themselves be subject to some individual sanction or punishment (including termination) for making mistakes such as these, without affecting the game result? At some level, yes. The leagues have an interest in ensuring that officials are competent and doing a good job. So something clear--the ref forgot to start the clock--could be grounds for job action. But leagues must be careful in doing this, since officials need a certain degree of discretion -- was there enough contact on a given play that one player gained an advantage, warranting a foul? -- that is lost if they know they could be fired because the league disagrees with one or a few calls. Something more should be required before calls that the league disagrees with become the basis for suspending or firing an official. Plus, I think officials know when they have made a mistake like that--and presumably regret it and will try to make sure it does not happen again. A one-game suspension is not going to do much more.
The only time I can recall a game outcome changing because of a league finding of official error was the infamous Pine Tar
Game between the Kansas City Royals and New York Yankees in 1984, which itself spawned some legal scholarship. But a couple things made that situation unique. First, we could point with absolute certainty to the effect on the outcome: if the call stands, that is the final out of the game. Second, it arguably was an example of the officials misunderstanding what the applicable rule required, as opposed to a decision of how to apply the rule in that situation. Third, baseball has a process for "playing games under protest" to the league, although never for purely discretionary decisions (safe/out or ball/strike or whether to eject a player).
And even then, the league's decision to order the game resumed from the point of the error (with the home run, and the Royals lead, reinstated) was not without controversy. It is certainly not something we want to see occur regularly in other sports.
Posted By : Howard Wasserman
NCAA Football Racial Hiring Woes
Message posted on : 2007-02-07 - 22:12:00
With a resounding win on Sunday night over the Chicago Bears, Tony Dungy, head coach of the Indianapolis Colts, and first African American to lead a team to a Super Bowl victory, has been widely credited with guiding his team through adversity to the promised land of World Champion. In the days following the Colt's Super Bowl victory, Dungy has been referenced as “smart,� “classy,� a “defensive whiz,� “bright,� and “intelligent,� among so many other well deserved superlatives.
But when can we expect Dungy's status to become "genius"? Like Bill Belichick genius? Or Bill Walsh genius? Or Mike Holmgren genius?; Or Bill Parcells genius? Or Mike Shanahan genius?; Or even Eric Mangini genius (after one season as a head coach now being widely referred to as “Mangenius�).
Do American sportswriters have difficulty calling an African American coach a genius? That superlative flies freely for successful white coaches. But how often do you hear Tony Dungy, Lovie Smith or Marvin Lewis in the same sentence as “genius.� Further, do Americans in general have trouble believing the genius that is apparent in so many people of color in everyday society?
Thankfully, Dungy has not been described as “articulate� or “clean� by any of the pundits covering the Super Bowl.
As Dungy was decisively winning Super Bowl XLI, Delaware Senator Joseph Biden stepped into a firestorm of criticism when he referred to presidential hopeful Barack Obama as “articulate� and “clean.� Biden, when asked about his potential presidential rival stated that Obama was “the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.� America's media jumped on Biden for perpetuating an age old stereotype that surprise should accompany a black man who is “articulate� or “clean.� “When whites use the word [articulate] in reference to blacks, it often carries a subtext of amazement, even bewilderment.� President George W. Bush just days later, also referred to Obama as “articulate.� Biden has been backtracking for days now. No word on whether Bush intends to backtrack.
Still, are Biden and Bush's discriminatory comments symptomatic of a larger American problem that trickles all the way back to African American coaches? Biden and Bush's use of “articulate� to describe Obama hearken back to former Dodgers' GM Al Campanis who, when responding to a question as to why Major League Baseball did not have more black managers stated: “I don't think it's prejudice. I truly believe that [blacks] may not have some of the necessities to be, let's say, a field manager or perhaps a general manager.�
While the Rooney Rule has arguably led to 20% of NFL head coaches being African American, what is the reason behind only six head coaches (out of 119 positions) in Division I NCAA football being African American (a dismal .05 % of all head coaches)? This “inexcusably low� number of minority head coaches in NCAA football cannot easily be explained away. Over 50% of all NCAA football players are African American. Black assistant coaching ranks have swelled in recent years. So, what is the source of this dismal reflection? Surely,
it cannot be that current Athletic Directors' and University Presidents' tack toward Campanis's way of thinking? Do they simply not know who the capable black candidates are? Is the “good old boy� network perpetuating this whitewash of college football head coaching ranks?
D.L. Hughley, comedian and actor currently playing on NBC's “Studio 60 on the Sunset Strip� captured this conundrum beautifully in the New York Times when he said (while referring to Biden's "articulate" comment): “Everyone was up in arms about Michael Richards using the N-word, but subtle words like this are more insidious. It's like weight loss. The last few pounds are the hardest to get rid of. It's the last vestiges of racism that are hard to get rid of.�
When will the NCAA assist its member institutions in ridding themselves of some of the "last vestiges of racism," particuarly on the football head coaching front?
Need they be reminded: Tony Dungy is a genius.
Posted By : dre cummings
Thomas Jefferson School of Law Annual Sports Law Conference
Message posted on : 2007-02-07 - 11:53:00
include licensing and sponsorships in the sports industry, labor issues in the sports industry, and steroid policies. I will be speaking on labor issues in the sports industry, and I look forward to my first trip to San Diego in over 20 years.
Posted By : Michael McCann
Marquette University Law School to Offer LL.M. in Sports Law
Message posted on : 2007-02-05 - 19:26:00
Marquette University Law School, which has an outstanding sports law program (including the National Sports Law Institute, the Marquette Sports Law Review, a certificate in sports law, and an excellent group of sports law professors), is pleased to announce that, starting in August 2007, it will offer an LL.M. in Sports Law for those with a bachelor of laws degree (LL.B.) or comparable first law degree from a degree-granting institution outside of the United States.
Detailed information about this unique program is available here, and the school's press release is below. Congratulations to Matt Mitten, Gordon Hylton, Patricia Cervanka, Paul Anderson, and all of the other distinguished sports law faculty at Marquette.
Posted By : Michael McCann
Can You Change the Outcome of Games By Wishing and Believing?
Message posted on : 2007-02-05 - 13:46:00
Emily Pronin, a professor of social psychology at Princeton University who has conducted some fascinating research on sports fans, has a thought-provoking post up on The Situationist entitled "Think You've Got Magical Powers?" The post details her research on how many athletes and sports fans believe that they can influence the outcomes of games through ritual, thoughts, and other activities that have no apparent rational connection to the games. Here is an excerpt from her post:
In addition to experiments with voodoo hexes, we've also studied fans watching sports. In one study, subjects watched as a player shot baskets. Spectators were more likely to perceive that they had caused his success if they had first been asked to visualize his success (“Imagine the ball falling through the hoop�). In another experiment conducted at a live basketball game (Princeton vs. Harvard), some spectators were given a task before the start of the game to think about how each of the starting players could contribute to it. Other audience members were not given this assignment (they instead were led to think about the players' appearances). At halftime, those who had thought about the players' potential contributions to the game reported having had more of an impact on the game than those in the control condition.
In another study, people watching the NFL Super Bowl on television felt more responsible for that game's outcome the more they thought about the game while watching it. Never mind that all of them had watched the game in front of a television at the campus student center.
Why would that be? Maybe the better question is, why not? Although the perception of mental power is (probably) without rational basis, the illusion of magic is comforting and, perhaps, adaptive. Belief in magic gives us hope, causal explanations, and the illusion of control – all of which we tend to crave – at times when any of those things might be hard to come by. Fears can be assuaged, threats can be tamed, stress can be eased, physical constraints can be transcended, and smoldering embers of hope can be rekindled when magic is possible.
For more, check out Emily's post on The Situationist. You can also read an article she co-authored entitled,“Everyday Magical Powers: The Role of Apparent Mental Causation in the Overestimation of Personal Influence,� which appears in the August issue of the Journal of Personality and Social Psychology.
Update: Shankar Vedantam of the Washington Post has an excellent story in Monday's Post
on Emily and the studies she has co-authored, and Henry Abbott over at True Hoop has a thoughtful post on those studies.
Posted By : Michael McCann
More Pre-Super Bowl XLI Thoughts (or football-related marital disputes)
Message posted on : 2007-02-04 - 17:11:00
I offer a rooting-interest question on the eve of Super Bowl XLI that indirectly (alright, really indirectly) touches on the world of Sports Law Blog.
I am rooting for the Colts, in part because I want to see Manning win a Super Bowl (for many of the reasons I wanted to see Steve Young win one back in 1994-95). And in part because I developed a visceral distaste for the Bears during my freshman year in college. I hit a Chicago-area school the year after the Super Bowl Shuffle Bears and found Ditka too obnoxious and the media too fawning to be bearable (no pun intended). I still have not gotten over that (and I still cannot stand to listen to Ditka). But I digress.
My wife, born and raised in Baltimore, says I should not root for the Colts because of what they did to the city in sneaking away to Indianapolis in the middle of the night, tearing the heart out of a city that lived and died with its team. (Remember the movie Diner, where the woman had to pass a test of Colts knowledge in order for her boyfriend to marry her?). But whatever sympathy I had for the city (and my wife and I did not know each other back then) disappeared when Baltimore threw around a lot of money and a sweetheart stadium package to steal the Browns away from Cleveland, tearing the heart out of a city that lived and died with its team.
Her response is that what the Colts did was different, because they sneaked away in the middle of a snowy night. Baltimoreans went to sleep with a team and woke up without one. I say that is a difference in degree of obnoxiousness, but the crime is the same.
Thoughts as you enjoy the game?
Posted By : Howard Wasserman
Super Bowl XLI and the Law
Message posted on : 2007-02-04 - 16:08:00
As you get ready for Super Bowl XLI, here are some great articles to check out:
Adam Benforado over at The Situationist examines how Super Bowl ads activate a specific part of the human brain, and how corporate actors use that information to create a distorted sense of "choice" among consumers. Adam wonders about the legal and ethical implications of these ads:
Corporations don't exactly have a good track record when it comes to learning counterintuitive information about human decision making and then using it responsibly. Rather, the best approach for maximizing shareholder profit is to discover some seemingly-illogical detail about the human brain, use that knowledge to sell more widgets, and then convince the public that their naïve (and incorrect) beliefs about how they make choices are, in fact, correct.
Take big tobacco: as Jon Hanson and others have documented, after figuring out that nicotine was addictive and could compel people to buy Marlboros, cigarette companies made a concerted effort to both up nicotine concentrations in their products and convince people, through advertising, that they were rational actors who were not easily manipulated.
From the perspective of an entity that is charged, through our legal rules, with making money (and not with doing social good), it makes little sense to alter peoples' situations to get them to be better consumers and then tell them that you are doing it and that it matters. Why, that would be as silly as announcing a weak-side blitz to the quarterback before the play. Sure, it would be the nice, ethical thing to warn decent gentlemen like Manning and Rex Grossman of the imminent threat, but it's not part of the game we've developed. Football is a game where you can get blind-sided.
Daniel Engber over at Slate discusses how the NFL is cracking down on Super Bowl parties, provided those parties are "public gatherings" rather than "private showings." (thanks to Sports Law Blog reader Tony Swanagan for the heads up on this story). The real issue here, however, is how the NFL is interpreting section 110 of the copyright law, which enables citizens to show games to large crowds, provided they do not charge and provided they are "only using 'a single receiving apparatus of a kind commonly used in private homes." Does a big-screen plasma TV count as a "single receiving apparatus of a kind commonly used in private homes"? Engber writes:
Given the rapid changes in video technology and consumer spending habits, it's very difficult for the courts to make these determinations. That means the NFL lawyers have to decide for themselves when a screen is too big and it's time to send a threatening letter.
Have you placed a monetary bet on tonight's big game while in Pennsylvania? Well if you have, the Pennsylvania Attorney General's office is sorry to say (through Heidi Ruckno's article in the Wilkes Barre Citizens Voice) that you have probably broken Pennsylvania law:
Unless you're in Vegas today, you might to want think twice about placing a bet. If you threw $5 into the office pool or bet your brother-in-law $10 that the Bears defense couldn't handle Peyton Manning's offense, you likely broke Pennsylvania law.
According to Nils Frederiksen, a spokesman for the Attorney General's Office, the only legal forms of gambling in Pennsylvania are the state lottery, small games of chance such as Bingo, betting on horse races and the newly approved slot machine gambling. “It's a law by exclusion,� Frederiksen said. “The law doesn't say you can't have an office betting pool, but it does say that gambling is illegal in Pennsylvania except for those things.�
Last but not least, be sure to check out dre cummings' excellent Sports Law Blog post on the Rooney Rule in light of both head coaches in tonight's game being African-American.
Posted By : Michael McCann
9th International Sports Law and Business Conference
Message posted on : 2007-02-04 - 06:05:00
For our European and internationally-mobile readers, consider checking out the 9th International Sports Law and Business Conference in London on February 22-23, 2007. This conference is one of the leading sports law conferences in Europe and provides a broad overview of recent developments in the sports industry in the United Kingdom and throughout the European Union. Gordon Hylton of Marquette University Law School (and Chair of the AALS Section on Sports and the Law) participated in the 2006 conference and recommends it highly.
Posted By : Michael McCann
I Want My [Direc]TV.
Message posted on : 2007-02-02 - 17:26:00
Following the first televised sporting event in the United States—a 1939 baseball game between Princeton and Columbia—the New York Times predicted that televised baseball had no future:
Seeing baseball by television is too confining…..To see the fresh green of the field as The Mighty Casey advances to the bat, and the dust fly as he defiantly digs in, is a thrill to the eye that cannot be electrified and flashed through space….What would Christy Mathewson, Smokey Joe Wood, Home Run Baker, Eddie Collins, Frank Chance, Tris Speaker, Ty Cobb, Rube Marquard and those old-timers think of such a turn of affairs— baseball from a sofa! Television is too safe. There is no ducking the foul ball…
Baseball commissioner Ford Frick would later agree, expressing fear that televised baseball games would drive fans from the stadiums to their couches and bankrupt the sport. Frick thus pushed to limit the number of games broadcast on television and radio. Frick and the New York Times were, to put it mildly,
a bit misguided.
Last week, Major League Baseball announced a proposal to carry its out-of-market “Extra Innings� television package exclusively on DirecTV for $700 million over seven years, thus cutting off access to most non-local games for the millions of people without access to a DirecTV satellite.
Senator John Kerry quickly declared that he planned to bring the pending deal before the Federal Communications Commission, because, among other things, “a Red Sox fan ought to be able to watch their team without having to switch to DirecTV.� This followed on the heels of
Senator Arlen Specter's announcement that he plans to draft legislation repealing the NFL's antitrust exemption under the Sports Broadcasting Act because the “football fans of America…are being gouged� by the shift from the broadcast of NFL games on network television to ESPN and DirecTV.
Congressional scrutiny of the “siphoning� of televised sports by cable and pay channels is not new. Several bills regulating sports broadcasting have been proposed by various members of Congress over the past thirty years, including the 1991 “
Fairness to Fans Act�, which required professional sports leagues to limit the number of games broadcast on cable or pay television.
The current Congressional inquiries and the possibility of legal challenges to the MLB and NFL deals with DirecTV raise some interesting antitrust questions. I will briefly set forth some of the bigger issues here and hopefully address some of them at greater length in future posts. As an initial matter, it is worth noting that a
group of fans actually filed a class action suit against the NFL in 1998, claiming that its deal with DirecTV violated the antitrust laws. The suit was settled before a court could ever reach the merits.
Before the case (
Shaw v. Dallas Cowboys, et al., 172 F.3d 299 (3d Cir. 1999)) settled, however, the court did address a threshold question that is raised by the current (and pending) deal. That is, does the Sports Broadcasting Act (“SBA�) provide any antitrust
protection for the NFL and MLB. The answer is clearly no. The SBA provides an antitrust exemption for the pooling of television rights of "
sponsored telecasting" for the "organized professional team sports of football, baseball, basketball, or hockey." “Sponsored telecasting� is defined by the SBA and “
does not include pay-per-view broadcasts,� such as DirecTV. The legislative history is similarly clear—for example, at the hearings before the House Antitrust Subcommittee in 1961, then-Commissioner Rozelle explained “that this bill covers only the free telecasting of professional sports contests, and does not cover pay TV.� (An interesting question to ponder for another day—
that might become more relevant if the Beckham-ization of the MLS is successful —is whether or not the SBA applies to the pooling of broadcast rights for the sport of soccer, or is limited to the four enumerated sports).
A more difficult question, however, is whether the judicially created “
baseball exemption� provides any protection for MLB. The Curt Flood Act of 1998, 15 U.S.C. § 27, et seq, lifted the exemption only as it pertains to labor issues for major league baseball players, and left the remainder of the exemption untouched. What remained untouched is unclear, and depends in large part on one's view of the scope of the original (pre-Curt Flood Act) baseball exemption. On one end of the spectrum, courts have held that the original exemption only covered major league player labor issues (
Piazza v. Major League Baseball, 831 F. Supp. 420 (E.D.Pa. 1993)), and therefore the exemption no longer exists at all. On the other end, courts argue the exemption covers matters central to the “business of baseball� (
Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003)), and therefore restrictions on television broadcasts of games are exempt only if such broadcasts are central to the game (the Southern District of Texas has already ruled that restrictions on radio broadcasts of baseball games are not exempt—
Henderson Broadcasting Corp. v. Houston Sports Ass'n, Inc, 541 F. Supp. 263, 265-72 (S.D. Tex. 1982)).
Another interesting threshold question is whether the NFL or MLB would have any success arguing that they are
single entities and therefore not subject to attack under Section 1 of the Sherman Act. Granted, major sports leagues have lost this argument virtually every time they have raised it, but the
Seventh Circuit breathed some new life into the defense in addressing the NBA's television restrictions on superstations. In that case, Judge Easterbrook noted that sports leagues may be more properly viewed as “hybrids� and suggested that “an organization such as the NBA is best understood as one firm when selling broadcast rights to a network in competition with a thousand other producers of entertainment.�
The actual merits of any potential antitrust claims also present some tricky issues. For example, what are the anticompetitive effects of the deals? Senator Kerry claims that the MLB-DirecTV deal causes a reduction in output, a classic anticompetitive effect, because MLB's Extra Innings package is currently available to 75 million households through cable and satellite operators, but would only be available to 15 million households if shown exclusively on DirecTV. But, if all of the games are shown—as the MLB proposes to do—on MLB.com, is there any real reduction in output? And, even assuming there is a reduction, do professional sports leagues have sufficient market power to have an overall anticompetitive impact on the
market, or are each of the leagues relatively small players in the overall market for sports (and entertainment) television with no ability to impact
consumer welfare?
In 1984, the Supreme Court addressed some of these issues with respect to restrictions on television broadcasts of college football, but, putting aside the differences between college and professional athletics, the ability to broadcast games via the internet and other changes in technology call into question some of the conclusions made by the Supreme Court. Thus, while the NFL and MLB are likely to avoid even the whiff of antitrust litigation and possible exposure to treble damages, the DirecTV deals do raise a variety of slippery antitrust questions...
FIFA's "immunity" under challenge
Message posted on : 2007-02-02 - 09:40:00
For my last post, I chose a truly intriguing aspect of European Sports Law - the self-awarded legal "immunity" enjoyed by FIFA and its National Football Associations.
Under Article 62 (2) of the FIFA Regulations [r]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. I'm not going to go deep into the legal questions a provision of this kind entails, namely in the area of regulation and the relations between regulatory and judicial entities. Suffice to say that in Europe (as in the US or any other mildly civilized world...) the right to obtain redress in a court of law is a fundamental right of any citizen. The recent Belet report, finally approved by the European Parliament, clearly states that the submittal of claims in civil courts cannot be the subject of disciplinary action by FIFA, even if there is the need to preserve the integrity of FIFA's competitions. The report further challenges FIFA to amend its regulations so that balance can be struck between the individual right to address a civil court and the organization of competitions.
This obscure provision went relatively unnoticed for many decades, until sport became big business. The money involved in sport spurred the movement towards court rooms of which the Bosman decision is perhaps the most visible result. The aftermath of Bosman (it bares great resemblances to baseball's first cases as far as freedom of movement arguments are concerned) is ironic. It is a harsh decision that basically shattered football's transference system as it was know at the time, with well-documented effects to competitive balance in European Football. After Bosman, European courts have been cautious in their approach to sporting matters, afraid to once again disrupt football well-established model. Notwithstanding the increasingly lenient stance displayed by the judiciary, FIFA reacted violently to Bosman, enforcing Article 62 (2) in an attempt to preserve its regulatory power over football. Several cases have highlighted FIFA's recent stance: in Portugal, Gil Vicente, a small Premier League club was relegated because it submitted an action in a Portuguese Administrative Court, seeking to authorize the registration of one of its players, in what latter became known as the "Mateus Case". The case may yet end up in European Courts and it would come as a surprise if Article 62 were to be deemed compliant with European Law. There is no organizational goal or competitive integrity end that can justify this type of “immunity�. In fact, restrictions and its advantageous effects should be assessed in court.
After going through some of the American case-law involving professional leagues, I now wonder: what if an MLS franchise were to challenge any of the MLS rules in a court of Law? How would Americans react to FIFA's attempt to block the claim by imposing Article 62 on club and league?
P.S. - This was my last post. I deliberately chose to focus on football because it is the one sport that will allow us to adequately compare American and European case-law in the future. American sports have always been business and have merited legal treatment in accordance with the status. Still American courts have managed to take into account the specific features of sporting organizations and competitions. I believe the American Model is of great value to its European counter-part in this time of major changes.
I would like to thank the Sports Law Blog team for this invitation and especially Michael McCann. It has been a true honor. This blog is excellent. I would also like to thank the commentators for their great comments.
Posted By : LCN
progress realized?
Message posted on : 2007-02-01 - 02:24:00
Before the first snap from scrimmage, Super Bowl XLI will be like no other National Football League championship game in history. On the Chicago Bears sideline, Lovie Smith will pilot his team as the first African American head coach to ever lead an NFL team to the Super Bowl. Across the field will stand Smith's mentor and friend, Tony Dungy who became the second African American head coach (by about four hours) to lead his NFL team, the Indianapolis Colts, into a Super Bowl.
Whatever barriers existed between African American head coaches and the Super Bowl prior to this season, Dungy and Smith have shattered them in their exemplary displays of leadership, fortitude and dedication. Appropriately, one of the principal stories leading up to this Super Bowl has been the fact that for the first time in the forty one years of Super Bowl play, one of the participating teams will be coached by an African American. The magnitude of this event can not be overstated.
As Dungy has repeatedly asserted when commenting on this historical achievement, both coaches brought their teams to the brink of a championship by coaching the “right way.� For Dungy and Smith, that includes fostering a familial bond of respect with the players' in their charge and by refusing to engage in the “profanity� and “win or die� attitude displayed by many NFL head coaches. On Sunday evening, around 10:30 or 11:00 p.m. eastern time, an African American head coach will lift the Lombardi Trophy over his head triumphantly and will make history again as the first black head coach to win the title.
Perhaps lost amongst the deserved hoopla for Dungy and Smith was the relatively quiet hiring of Mike Tomlin by the Pittsburgh Steelers as their new head coach. Tomlin, the thirty four year old African American former defensive coordinator of the Minnesota Vikings becomes the first black head coach in the Pittsburgh Steelers seventy four year history. Tomlin becomes the sixth black head coach in the 2007 NFL joining Smith, Dungy, Herman Edwards of the Kansas City Chiefs, Romeo Crennel of the Cleveland Browns and Marvin Lewis of the Cincinnati Bengals. Last season seven African American head coaches stalked NFL sidelines, but the Oakland Raiders terminated Art Shell as head coach after one season and the Arizona Cardinals fired Dennis Green following three disappointing seasons.
Tomlin's hiring is striking and noteworthy for several reasons. First, the NFL adopted a rule in 2002 under the direction of then commissioner Paul Tagliabue that required each NFL club to interview at least one minority candidate each time a head coaching vacancy became available. This rule is commonly referred to as the “Rooney Rule.� The owner of the Pittsburgh Steelers is Dan Rooney, one of the most influential owners in professional sports and it is he who masterminded the rule as a means of opening access and opportunity to African American coaches. Failure to follow the rule can result in a stiff penalty (as Matt Millen and the Detroit Lions can attest after being fined $200,000 for hiring Steve Mariucci without interviewing a single minority candidate in 2003).
In interviewing Tomlin, Rooney was following the very rule that he helped to establish. The obvious purpose of this rule was to begin to introduce the young minority coaches in the league to the primarily older, white male owners of the NFL clubs. As in any “old boy network� scenario, individuals will hire who they know, and by in large, the older white male NFL owners knew the same cadre of coaches and contacts who for so many years were primarily, if not absolutely, white. The Rooney Rule has forced NFL owners to develop lists of promising minority coaches and to have them in for day-long interviews allowing the owners to become familiar with a group of candidates they
had not known previously—a type of affirmative action for NFL hiring.
When long-time Steelers coach, and beloved Pittsburgh native Bill Cowher announced his resignation, the early speculation was that Rooney would stay in-house and offer the head coaching position to one of two successful white assistant coaches on Cowher's staff, offensive coordinator Ken Wisenhunt or offensive line coach Russ Grimm. Reports indicated that Russ Grimm would land the job with Pittsburgh, particularly after Wisenhunt was hired as head coach of the Arizona Cardinals. Yet, Rooney, in keeping with his rule, decided to interview the young, aggressive promising defensive coordinator of the Minnesota Vikings. Tomlin so impressed Rooney that he was offered the head coaching position almost immediately. Grimm left the Steelers to join Wisenhunt in Arizona.
The Tomlin hiring portends important changes taking place throughout the league. Minority candidates are becoming more routinely sought after as candidates. Bears' defensive coordinator Ron Rivera has received several head coaching interview opportunities as has San Francisco 49ers linebacker's coach Mike Singletary. As Marvin Lewis and Tony Dungy know, interviewing often around the league allows owners to get to know an individual. Which often leads to an opportunity.
Is the Rooney Rule responsible for this progress? Absent the Rooney Rule, would Tomlin have been contacted by Rooney for an interview? Had he not been interviewed, Tomlin would not have had the opportunity to impress Rooney with his presentation, preparation and potential. Absent the Rooney Rule would 20% of head coaches in the NFL be African American? Absent the Rooney Rule would two African American head coaches be battling on Super Sunday for the chance to again be a first?
And if this Rooney Rule appears to be working for the NFL, then what is the problem with the NCAA and head coaching jobs for African Americans in college football?
Posted By : dre cummings
Sports and Due Process (Or More Looking Over Game Officials' Shoulders)
Message posted on : 2007-01-31 - 23:17:00
O.J. Mayo of Huntington (W. VA) High School, purportedly the best high-school player in the country and bound for U.S.C. next fall, played in a high-profile basketball game Tuesday night against Lakewood (CA) Artesia High School. This was one of those increasingly common made-for-TV games; this one was played at Duke's Cameron Indoor Stadium between top-ranked high school teams, neither of which is particularly close to Durham, NC. Mayo scored 19 points before fouling out in Huntington's win.
This is worth mentioning on Sports Law Blog because Mayo needed a court order to play in the game.
Mayo (along with five teammates) was ejected from a game last Friday night. Mayo received two technical fouls, the second for taunting opponents after a second-half dunk. That technical lead to an on-court scuffle between players on both teams. Video is here. After the second technical, Mayo followed the official to the scorer's table; he and the official made some body contact (how much is in dispute) and the official fell to the floor. Under West Virginia Secondary School Activities Commission (SSAC) rules, a player ejected from a game is suspended for the next two games. And a player who in protest makes contact with an official can be suspended for up to one year.
But hours before Tuesday's game, Mayo won a Temporary Restraining Order from Cabel County Circuit Judge Dan O'Hanlon, allowing him to play in the game and prohibiting SSAC from enforcing its suspension rules until a hearing on February 9 to determine what process SSAC must give Mayo before suspending him. Stories here and here.
I have not read the court's order and am working off sports media reports, which often do not accurately capture legal detail. The stories contain pithy comments from one of Mayo's lawyers about how the players "deserve an opportunity to be heard before they are denied the chance of a lifetime because of an arbitrary enforcement of a rule they did not intend to violate." And another lawyer (who also is an assistant coach) insists Mayo did not intend to make contact with the official and, if anything, it was the ref who initiated the contact. You get the idea. I am opining off less-than-complete legal information.
That said, I cannot understand how the court could issue this TRO. I do not see what process Mayo should be entitled to that would allow him to avoid at least a two game suspension.
Take the ejection and put the bumping to one side for a moment. The SSAC rule is clear and (I believe) unequivocal: If you receive two technical fouls and/or are ejected, you sit two games. The only question is whether Mayo was, in fact, ejected because he received two technicals. That fact seems undisputed and indisputable. A hearing or other process from SSAC does nothing to change that. The rule is not being arbitrarily enforced--it kicks in whenever a player is ejected, as Mayo assuredly was. And whether Mayo or the other players intended to violate this rule (the point the attorney/coach made) is an utter non-sequitur; I assume no player ever intends to get two T's or intends to get ejected from a game. Intent is irrelevant to the rule.
So if a hearing will change nothing about the two-game/ejection suspension, the TRO should not have issued. One thing a plaintiff must show in order to get a TRO is that he is "likely to succeed on the merits"--that the claims he is bringing has merit. Mayo is making a due process argument, which means he has to show that he is entitled to some process and that it would make a difference. I do not see how it makes a difference as to this rule.
Unless, of course, Mayo wants a hearing so he can argue to SSAC that it
should reverse the referee's decision to give him the second technical. If so, that is an extremely dangerous and bad idea, for reasons similar to what I discuss in an earlier post. Game officials have a difficult enough job without fear that their immediate in-game decisions, such as whether to call a violation, are going to be subject to reversal from above when they call something on the wrong player (a top-5 national star) at the wrong time (on the eve of a mythical national championship game). This is an example of the type of discretionary decision that must be largely immune from review if we want refs to be able to do their jobs. The notion that Mayo has a constitutional due process right to a hearing to ask SSAC to reverse the official's in-game determination would make sports contests ungovernable. This would set a bad precedent.
Now, the potential suspension for bumping the ref is a different story. Whether a bump occurred, whether it was intentional, and whether it was "in protest" all are in dispute and all are necessary for application of the rule. Plus, whether a suspension should occur and its length are within SSAC discretion, probably depending on the severity and intent behind the contact. A hearing is necessary to resolve those factual issues, so Mayo is entitled to some process before a bumping suspension is imposed.
But that alone does not justify the TRO that allowed Mayo to play on Tuesday. It seems that Mayo should have to sit, at a minimum, two games--the Cameron game and one more--as punishment for the ejection. Anything beyond that would be punishment for the bump and he is entitled to a hearing before such additional games are added.
But there was no reason for the court to interfere now. At least no reason beyond everyone wanting to see O.J. Mayo play in that particular game.
Posted By : Howard Wasserman
andre douglas pond cummings and Gabe Feldman: Guest Bloggers
Message posted on : 2007-01-31 - 11:02:00
We are thrilled to have two distinguished scholars guest blog: andre (dre) douglas pond cummings and Gabe Feldman.
dre is an associate professor of law at West Virginia University College Law, where he teaches sports and the law, civil procedure, and other courses. He's originally from Los Angeles and is a graduate of Brigham Young University (where he was on the track team) and Howard Law School. He later practiced law in Chicago at Kirkland & Ellis, where he represented NFL players and Hollywood screenwriters and novelists. He has won numerous teaching awards and has published articles in such scholarly journals as the Harvard BlackLetter Law Review, the Nebraska Law Review, the University of Louisville's Brandeis Law Review, and the Howard Law Journal.
Gabe is an associate professor of law at Tulane Law School, where he teaches sports and the law, antitrust, and other courses. He is a true Blue Devil, holding a B.A., M.B.A., and J.D. from Duke University. While in law school, he held legal internships with pro sports teams. He later practiced law in Washington D.C. at Williams & Connolly, where he represented a variety of sports entities, and also co-taught a sports law class at UVA Law. Gabe is the co-author of Sports Law: Cases and Materials, and will direct Tulane's sports law program with Gary Roberts becoming Dean of Indiana University School of Law in Indianapolis.
We very much look forward to posts by dre and Gabe.
Posted By : Michael McCann
Sports Leagues as Courts of Appeals
Message posted on : 2007-01-30 - 18:39:00
The NFL this week fined the Saints' Reggie Bush $ 5000 for taunting the Bears' Brian Urlacher during Bush's touchdown catch-and-run in the NFC Championship game. Bush pointed towards Urlacher (running several yards behind him) at the end of the run, then did a front somersault into the end zone.
What is interest is that Bush did not draw a taunting penalty on the play. In other words, the game officials on the field either did not see it (unlikely, because it was pretty hard to miss, especially the somersault) or did not think it was worth a flag. Given that, I wonder how appropriate it is for the NFL to assess a fine.
Compare the usual (although not absolute) practice of courts of appeals. They generally will not address issues that were not raised and considered by the trial court. And they generally will defer to certain decisions that trial judges are deemed better able to make from their on-the-ground vantage point in a case (usually involving things such as witness credibility and the like).
League-imposed fines can be seen as an additional punishment, imposed from above (on appeal, if you like) and directed towards the individual player, a supplement to the in-game punishment assessed by the game officials. Not every penalty flag warrants a player fine. But perhaps the league should stay its hand in the opposite situation. If game officials did not believe an infraction occurred at the time, the leagues should defer to that initial determination and not impose a penalty or fine after-the-fact.
Some of this gets into whether we trust game officials on the ground to get things right and whether review from above, usually with the help of video, is proper and necessary. But that gets into what I think of instant replay, which is another, much longer post.
Posted By : Howard Wasserman
The One and Only Berlusconi...
Message posted on : 2007-01-29 - 05:17:00
Mr. Silvio Berlusconi, the former Italian Prime-Minister, eternal President of the great
AC Milan and owner of Mediaset, is perhaps better known for his less than commendable antics and over the top comments. However, he brings to international headlines a truly interesting case, at a time when the Italian Competition Authority just released its
very own view on the need to collectively sell Italian Calcio's broadcasting rights. Mediaset, who reportedly paid over USD$ 65 Million for the right to broadcast Calcio's highlights, claims this summer's match-fixing scandal in Serie A devalued its TV rights, stating a strong loss in viewer interest in Serie A as a result of the relegation of top club Juventus and heavy punishments to AC Milan, Fiorentina and Lazio.
According to
Il Corriere, Mediaset cites a 15 per cent drop in pay TV rights. After one of the main title contenders was relegated and three other major clubs heavily punished with the loss of points, the League lost at least some of its magnetism. And some 40% of all football viewers are fans of the proscribed clubs. Now Mediaset is taking
legal action against the Italian football league. It seeks the reduction of the total price agreed upon for the right to broadcast the best moments of Italian soccer. The claim in itself, regardless of its merit, should be welcomed for what it entails in terms of mentality and is sure to make excellent reading.
Mediaset will try to establish the devaluation by resorting to available figures: (i) ticket sales in Serie A dropped 17.5%; (ii) Paying spectators in the first 13 rounds dropped 10%; (iii) Serie A Pay TV subscriptions dropped 14.8%; and (iv) Serie B Pay TV subscriptions increased by 52%, with Juve competing is the secon
d tier this season. This should be enough to sustain the argument of a significant change in circumstances. Basically, if (i) the circumstances that were taken into account upon the execution of the contract have been subsequently and significantly altered and both parties could not have foreseen it; if (ii) the change brings significant economic imbalance to the contract; and if (iii) the change cannot be deemed inherent to the nature of the contract and the risks it entails, then the contract can be terminated or its price (as an element of the contract) reduced accordingly. Are we to assume that something of this sort might happen when contracting in the field of sports? The assumptions the parties took into account when agreeing upon the price certainly included the likes of Juve in Serie A and Fiorentina and AC Milan vying for a
Champions League spot. Those assumptions are no longer valid. And match-fixing can hardly be deemed an inherent risk of any sporting activity.
This brings us to the
Mediaset's second prospective argument: was the League negligent in its capacity as regulator of professional soccer in Italy? The regrettable state of affairs in Calcio's backstage had been mooted for years and one gets the feeling it was just a matter of time before the bubble of corruption burst. The League will certainly argue that it is not responsible for the actions of clubs, underlining the disappointing behavior adopted by club's managers in their undertakings towards success. While it may be tempting to let the League off, the fact remains that little had been done to prevent and punish match-fixing. And the League will find it very hard to shake-off its duty to supervise the legality of its clubs' deals. However, Mediaset is not likely to choose the path of negligence. Mr. Berlusconi would be falling into a trap. While the claim of negligence might further reduce the price he's paying for the highlights, it will no doubt prove very costly in terms of personal image. After all, the owner of Mediaset would be surging against the President of AC Milan: the one and only Mr. Berslusconi...
Posted By : LCN
NHL Players Approve Independent Investigation of Saskin's Hiring
Message posted on : 2007-01-27 - 09:45:00
On Thursday this week, a majority of the 30 NHLPA-player representatives approved an independent investigation into the hiring of executive director Ted Saskin. Back in June, 2005, the union accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that former executive director Bob Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Goodenow was dismissed and, that same day, Saskin was hired as executive director.
Last October, I discussed the lawsuit filed against the NHLPA by a large dissident group of players alleging that "Saskin was never properly nominated for the position by the executive board." That lawsuit was dismissed this week by a federal court in Illinois for lack of jurisdiction. The judge agreed with the NHLPA that Ontario was the proper situs for the suit. Three days later, the players approved the investigation. Mathieu Schneider, a Detroit Red Wings defenseman and interim NHLPA executive committee member, said, "The purpose of the investigation is to clear the air, produce clarity on these questions and fortify a strong unified union."
Schneider would make a good politician some day. But in all sincerity, Schneider is absolutely right. An independent investigation makes perfect sense here because there is such a large dissident group of players. The last thing the players need is dissension among themselves. Also, an investigation is more efficient and cost-effective than a long drawn out discovery process tied up in court. Furthermore, the players don't need to convince a judge or jury whether Saskin should be removed or not; the players just need to convince themselves.
There appears to be some unanswered questions about exactly what information was disclosed to the player representative executive board members regarding the salary cap and the hiring of Saskin, and whether the players were fully informed in order to make proper decisions. The investigation will probably not provide all the answers. But the results of the investigation will either strengthen or weaken the dissident players' case and lead to a speedier resolution of this dispute, which serves the best interest of all the players and Saskin as well.
Posted By : Rick Karcher
Introducing The Situationist
Message posted on : 2007-01-26 - 17:29:00
Dear Friends & Readers:
I wanted to let you know that I am the co-creator of another blog,
The Situationist, which was just made live today. The other co-creator is Harvard Law School professor Jon Hanson.
The Situationist is part of the
Project on Law and Mind Sciences at Harvard Law School, which Jon and I are also creating, and will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Some prominent social psychologists have already agreed to contribute, including, for example, Philip Zimbardo, perhaps best known for his "Stanford Prison Experiment." Posts will address current events and law and policy debates, informed by what social scientists are discovering about human behavior. Our first posts include:
I'll still be blogging regularly at
Sports Law Blog, but will discussing many other topics at
The Situationist. The two websites are connected more than they may seem. In fact, I will be examining sports from time-to-time on
The Situationist and Jon and I intend to write a book on sports from a situationist perspective. I hope you give
The Situationist a look and would welcome any feedback or suggestions.
Upcoming Symposium at Ripon College: Ethics in Sports
Message posted on : 2007-01-24 - 11:13:00
On February 1st and 2nd, the Ethical Leadership Program at Ripon College in Wisconsin is sponsoring a symposium featuring some very interesting and provocative panelists and keynote speakers, including Bud Selig and Myles Brand. Check out the program for the event.
Posted By : Rick Karcher
Tank Johnson Will Join the Bears in Miami
Message posted on : 2007-01-23 - 22:49:00
The Chicago Tribune just reported tonight that Terry "Tank" Johnson, defensive lineman for the SuperBowl bound Chicago Bears, has been cleared to travel to Miami with no restrictions. Tank had been under house arrest after police raided his home in the northern suburb of Gurnee, allegedly finding a number of handguns and assault rifles, for which Tank was not licensed (there are other reports that Tank was licensed in Arizona, but not in Illinois). Cook County prosecutors found this latest offense to be in violation of his probation that he received in November 2005 for an unlawful gun possession charge.
Johnson had been under house arrest, but allowed to go to work (Lake Forest for practice; Soldier Field for games), and would need special permission to leave the state, which he just received.
In other news, Johnson has not been charged in connection with the shooting death of his bodyguard/friend Willie Posey on December 16 while Johnson was with him at the River North club, Ice Bar.
As a Bears fan, I know that Tank is an essential part of the Bears D, especially in light of the losses of Mike Brown and Tommie Harris to injuries. As a lawyer, Tank seems to have complied with the conditions of his house arrest, but I hope that justice was blind here.
My main concern is that there are "no restrictions" on Tank while in Miami. Certainly there would seem to be a case here to restrict Tank to practice and the game as he is restricted while in Chicago. Any criminal lawyers with some insight here?
Posted By : Tim Epstein
Beckham just one of many advances
Message posted on : 2007-01-23 - 06:45:00
Following up on my post of January 18, click here for a break-down of some of the reasons why the future is bright for the MLS. Beckham was just one of many significant developments.
Posted By : LCN
Andre Waters and Concussion Liability for NFL Teams
Message posted on : 2007-01-22 - 10:13:00
Last week, the New York Times featured a troubling story about an expert's conclusion that former NFL Player Andre Waters' suicide may have been the result, at least in part, of concussions sustained during his football career.
While I hate to sound like a league defender, I wish the information on which this story was based had come from different sources...
The expert cited in the story is Bennet Omalu. According to the Times, The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.
This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.
The Times story also indicates that Dr. Omalu's investigation was initiated after prodding by former Harvard football player and professional wrestler Chris Nowinski, author of a book called Head Games: Football's Concussion Crisis, as well as this myspace page and this fan page.
This is not to say that Dr. Omalu's conclusions are not based on some interesting developing science linking brain injury and depression. But it looks to me like this is a quasi-professional expert witness whose credentials have been a bit over-hyped by the Times. Moreover, while Nowinski may mean well, he does have a bit of a financial interest (in selling books) that would be served by both this NYT story and allegations that a former player's suicide (already a scandalous matter) resulted from, guess what, the very thing he's writing about. It's also fair to say that the credibility of a professional wrestler is, well, not exactly unimpeachable.
In any event, should Dr. Omalu's concerns be substantiated, the legal issues posed will be intriguing. What liability, if any, would attach to a team, or a team physician, for negligence or other tortious conduct leading to
suicide? At one point in time, suicide was considered to be a superseding intervening act that severed the chain of proximate causation between "wrongful act" and "unfortunate result". The modern trend, however, allows suits against those who increase the risk of suicide, fail to prevent suicide or detect suicidal tendencies where suicide was a foreseeable outcome. Typically, these defendants are manufacturers of brain-altering medication or psychologists, psychiatrists and other therapists.
But why not a team, a league, or a team physician? If new science demonstrates a connection betweend depression and mild brain trauma, a team physician (now typically labeled an "independent contractor" to insulate the team from liability) who clears the player to return to play might bear some liability exposure. As one leading scholar explains:
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.
Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).
Is it fair to say that Waters would be barred by assumption of risk or other "limited duty" or "no duty" rules applicable in professional sports? As one psychology blogger notes, Waters seemed to recognize the risks of his position. “Playing strong safety in the NFL, it's either kill or be killed like ‘Survivor,'� Waters said.
For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.
Posted By : Geoffrey Rapp
A New Dawn in F1
Message posted on : 2007-01-22 - 06:02:00
Formula 1 (F1) seems to have at long last found its feet in America. Not only has
Indianapolis regained its place as a legendary F1 venue but Scott Speed scored a
first valuable point for the Scuderia Toro Rosso - incidentally, Scott's performance may
not be enough to secure him a driving seat for 2007. Meanwhile, the European Commission (Commission) has finally put an end to its
investigation into the Formula One and other four-wheel motor sports. And it may change the face of the sport as we know it. In the late 90's, the Commission's attention was drawn to the regulatory and anti-trust issues regarding the governance of F1, centered on the role of the
FIA.
The days of F1 as the playground of Bernie Ecclestone and the FIA may not be over just yet, but the repercussions of this long investigation represent a new dawn. We have to go back to 1994 to understand the sort of stranglehold Mr. Ecclestone had on the sport. Back then, F1 was directly run by the FIA (the sport's regulating body), FOA (which held the commercial rights to F1) and ISC (which had acquired F1's broadcasting rights for subsequent resale). The link between all three entities was Bernie Ecclestone, whether as a director, owner or founder. Throughout the whole process, the Commission's concerns revolved around four main issues:
(i) The need to guarantee that the regulating functions fall upon a body with no commercial stake in the sport, in order to avoid any conflict of interest between the ones who partake in it and the ones who lay down the rules;
(ii) The need to ensure that the agreements entered into by FIA, FOA and the teams, circuit owners and TV networks do not limit the ability of other undertakings to organize, participate and broadcast F1 events. Moreover, the Commission displayed concerns over the restrictive effects of such agreements on the inception and existence of rivaling competitions, which were not allowed to race in F1 circuits, to enter F1 teams or to be broadcast on channels that covered F1 races;
(iii) The need to ensure that FIA shares the Intellectual and Industrial Property rights arising from the competition with teams and other intervening parties; and
(iv) The need to limit exclusive broadcasting to 5 or 3 years, as opposed to the 10 years which were generally agreed upon.
While the inquiry lasted, SLEC (owned by the Ecclestone family along with three banks) became F1's
major player. The Commission is now satisfied that FIA currently limits its capacity to regulatory functions which
will allow the creation of potential inter and intra-brand competition between Formula One and similar races and series.
Furthermore
(...) broadcasters in the various countries will be invited to tender for the TV rights on the expiry of the current (and any future) contracts. (...) The parties have also reduced the length of free to air broadcasting contracts to a maximum three years (except for contracts where specific investments justify a length of up to five years).
F1, albeit a global sport, is structured in a very "European way". Utility purposes are still coupled with profitability goals, which is odd in a sport that is not seen as playing a relevant cultural or social role - if any sport should be "downplayed" as simple business, F1 is it. Is the separation of regulatory and commercial interests truly needed? Or should we just accept that the two go hand in hand? The professional leagues in America are the ultimate examples of this. There is no better motivation than the suggestion of money. But in Europe other considerations come to play with unwarranted strength. So it won't be a surprise if less and less European circuits feature in the list of F1 races in the future. It seems we are the only ones who snub the driving force behind all things in modern days...
NBA Activates its "Security Forces" to Prohibit Players from Frequenting Nightclubs
Message posted on : 2007-01-21 - 17:29:00
According to Mitch Lawrence of the New York Daily News, the NBA has "ordered its security forces" to come up with a list of nightclubs that should be made off-limits to players:
In the wake of the Broncos' Darrent Williams' murder in Denver, and other shootings in that city involving pro athletes, the NBA this past week ordered its security forces in all 29 cities to come up with a list of clubs and other night spots that should be made off-limits to players. Once the clubs are identified, with the help of local law enforcement, the league will send a directive to teams mandating that players avoid those spots or be subject to a substantial fine.
Setting aside, for a moment, the dubious merits of this policy, it does not appear to enjoy the benefits of collective bargaining. The closest textual support it may obtain from the NBA-NPA collective bargaining agreement derives from Article VI, Section 11, which delineates "league investigations" into player behavior:
Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.
I suppose the NBA could characterize the policy as reflecting a broader and extended league investigation into player behavior, and that such an investigation has been contemplated by the respective parties to the CBA. There are several other sections from Article VI that might also lend the NBA textual support, but none appear sufficiently relevant. And without collectively-bargained support, it, like any non-collectively-bargained working condition, would be subject to antitrust review--and as Joe Rosen and I detail in our Case Western Reserve Law Review article, antitrust law is not especially tolerant of unilaterally-imposed league prohibitions on working conditions, particularly given the existence of the labor exemption, which is premised on the belief that employees are better off negotiating together than individually, particularly when negotiating wages, hours, and working conditions. Also expect a possible objection from NBPA head Billy Hunter, who might, on behalf of the NBPA, file an unfair labor practice charge with the NLRB, particularly if this nightclub prohibition--which, according to Lawrence, will enjoy police assistance--constitutes "spying on employees."
As to the merits of the policy, I suspect it will strike most players, fans, and media as patently paternalistic, even more so than the dress code (and this is a league, after-all, featuring a commissioner who calls NBA players "these kids"). While the NBA understandably has a vested interest in seeing its players represent their teams and league in a law-abiding way--and to do so at all times--going to a night club isn't against the law (although players obviously have to be 21 or older to drink there). It's an activity that some of the players, who are grown
men, like to do, just like other adults like to do.
And if the NBA's sole concern is one based on a safety analysis of players at nightclubs, then shouldn't the league also prohibit them from drinking alcohol or eating fattening foods? How about if those same players travel back home to where they grew up--some of them are from some pretty bad neighborhoods, should those neighborhoods be put off-limits, too?
Update: Skip Oliva over at the Voluntary Trade Blog checks in with a thoughtful response to this post:
Even if Stern's idea has merit, why does it have to be imposed by the league office on all 29 teams? It's better to leave this type of player conduct issue to the individual clubs. Stern's centralism actually makes it more difficult for individual clubs–particularly coaches, who have far less power on most teams than star players–to maintain their own discipline. Paternalism reduces the incentive for individuals to take greater responsibility for their own actions. McCann notes how arbitrary the nightclub prohibition is; will players also be prevented from drinking or returning home to “bad neighborhoods� in the name of protecting the league's image? Stern will certainly grab as much authority as he can before his media allies turn on him or, more likely, the lawyers get involved.
Update 2: David Wilson over at Sports On My Mind has a substantive analysis of this topic.
Posted By : Michael McCann
Upcoming UVA Law Symposium on Sports and Entertainment Law
Message posted on : 2007-01-21 - 11:17:00
On Friday, February 2, the Virginia Sports and Entertainment Law Journal and Virgina Continuing Legal Education will be hosting the first ever Virginia Sports and Entertainment Law Symposium. I am excited to be a part of it, as it will feature an engaging mix of practical and theoretical topics, as well as a dynamic array of speakers. The symposium will be held at the University of Virginia School of Law in Charlottesville. Here is the schedule:
Posted By : Michael McCann
Gary Roberts named Dean of Indiana University School of Law
Message posted on : 2007-01-19 - 21:07:00
Congratulations to Gary Roberts, Deputy Dean of Tulane Law School and Director of the Tulane Sports Law Program, on being named Dean of Indiana University School of Law in Indianapolis. Gary, who co-authors a leading sports law case book with Harvard Law School professor Paul Weiler, has extensive experience in sports law, including serving as President of the Sports Lawyers Association from 1995 to 1997. It appears that he will continue to engage in sports law, as his new school's Executive Vice Chancellor and Dean of the Faculties, Uday Sukhatme, says, "Sports law will continue to be a focus of Roberts' scholarly work at IUPUI, and this is most appropriate given the strong sports presence in Indianapolis."
Good luck to Gary on what is undoubtedly an exciting new experience. Also good luck to Gabe Feldman, who will be guest blogging here later this month and who will now be directing Tulane's excellent Sports Law Program.
Posted By : Michael McCann
Sports Over Law: Motion to Delay Trial to Accommodate Saints Fans
Message posted on : 2007-01-19 - 14:30:00
If you are a lawyer and a sports fan, you can certainly understand the following motion by defense counsel in Fay Thibodeaux Danos et al., v. Avondale Industries, Inc. et al., a case before a civil district court in Louisiana:
[The defendants] move to continue trial of this matter, which is currently scheduled to begin on January 22, 2007, by two days. Thus Defendants request that trial begin on January 24, 2007.
As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game -- the first such game in the franchise's forty-year history -- against the Chicago Bears in Chicago, Illinois on January 21, 2007, at 2:30 p.m. In order to accommodate all fans, including the majority of the jury pool, the parties involved in this case, and the counsel involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of the trial be pushed back two days to January 24, 2007.
Counsel for the remaining defendants in this matter have been contacted, and none objects to this motion nor its requested relief. Numerous attempts have been made to contact Plaintiff's counsel by telephone and by e-mail, with no response from Plaintiffs' counsel.
Several attorneys at the New Orleans law firm Sher, Garner, Cahill, Richter, Klein & Hilbert, LL.C., authored the motion. Clearly, that's a firm where time devoted to sports watching (and perhaps also "celebrating" while doing so) is valued. Tough to complain about that.
Posted By : Michael McCann
Living the Dream
Message posted on : 2007-01-18 - 13:16:00
I know the whole
Beckham affair is "old news" by now. But what better topic is there for an European to write on an American Sports Law blog than the David Beckham
$250M move from Real Madrid to the Los Angeles Galaxy? I think the issue is interesting for a number of reasons.
First and foremost, after the likes of
Pele,
Beckenbauer and our very own
Eusebio were lured to the
NASL in the 70's, the
MLS has finally made itself available to the games' truly big names. Although overexpansion is a well documented cause for the failure of the NASL, the hiring of older, high profile foreign players, has been highlighted as the defining motive for the fiasco. The effort to bring in foreign "stars" placed an excessive strain on the league's finances. And for all their stardom, these players failed to elevate the game to levels of financial sustainability in the United States. After the implementation of the
Designated Player Rule last November, it was only a matter of time before something like this happened. Future prospects for the game are buoyant with increasing media coverage and greater deals being signed and a city like LA will make the business qualities of the Beckhams (Posh included) all the more attractive. At 32, Becks still has a couple of years left in him. And considering he has never played the game as well as he sells it, the Galaxy franchise is not being conned. It is actually getting excellent value for its money. As for the greater good of the League, one has to admit that with a sound college system feeding the main division, and on the basis of the consistent showings by the US National Team, the time is right for the inception of the Designated Player Rule. If the game is to be taken to the next level, Becks and Co. are just the ones to do it.
It will also be interesting to see how other MLS major stars react to Becks' arrival. On $
900,000 per year, Landon Donovan, one of the most recognizable faces in the LA soccer scene, is certain to undertake a reassessment of his career. Sportsmen tend to relate their salary with their on-field performance and their potential to deliver the goods, past statistics, etc. Marketability is not nearly as rated by players as it is by managers when it comes to salary assessment. Beckham could be just as good as Pele - which he is not - and the salary gap would still be virtually indefensible from a player's perspective. There is definite potential for the clash of egos in future editions of the League.
Finally, the spotlight once again falls upon the exceptions to salary cap mechanisms which have featured prominently in past MLB, NBA, NFL and NHL negotiations. As a matter of principle, an exception undermines the goal of competitive balance which is purportedly pursued by a salary cap system, because it allows richer clubs the chance to exert their financial
domination by acquiring the services of the most talented players. However, smart management and clever allocation of central contracts and high levels of revenue sharing should control the damage potentially arising from this specific exception. On this matter, the ability to swap a designated player for draft picks could be the catalyst that perpetuates differences between high revenue and low revenue teams. Let's see if restraining Designated Players to two per team will be enough.
One final note: Europeans would do well to look at the Beckham Exception (could this be the new name for the Designated Player Rule...?). Salary Cap systems need to be flexible in order to accommodate labor and anti-trust considerations. Revenue sharing is the underlying element that facilitates cap systems in the American professional leagues. Revenue Sharing in Europe has only now started to come to life and is still incipient. The "
Arnaut Report" (named after a Portuguese former Minister) insists that caps should be put in place in European Leagues, in order to curb the financial excesses of most of our clubs. Many arguments can be put forth here, but mine is one of principle: without effective revenue sharing, caps do not work and can even exacerbate the differences between high and low revenue clubs. Are we, Europeans, getting ahead of ourselves?
Sports Judge for your Fantasy Sports Disputes
Message posted on : 2007-01-18 - 11:10:00
Anyone who plays fantasy sports knows that "disputes" can sometimes emerge within leagues. You probably what I'm talking about. How about a dubious late-season trade that is so lopsided that it must entail some "off-field" payment, but your commissioner, for whatever reason, won't intercede? Or how about some strange scoring formulas? Or some sketchy roster modifications? Worse yet, you often have nowhere to go if your commissioner doesn't help.
Well now you have an recourse: you can hire Marc Edelman to be your sports judge. Marc, a lawyer and avid fantasy sports player, has started Sports Judge, a service designed to provide "an impartial and effective method for resolving disputes with other teams." Basically, players in dispute with one another or with their commissioner can pay $15 (or $100 for an entire season) and Marc will study the dispute and issue an opinion from the bench of the "Court of Fantasy Football."
Marc has several sample opinions posted, including Hermann's Head v. Commissioner of the Yale Football League (Index No. 00257, Sept. 1, 2006). It is truly a great read, involving a claim "seeking to prevent the Commissioner of Yale Football League from changing the league's active roster size from eight players to nine players by adding a third active running back." Following a thoughtful and well-reasoned opinion, Judge Edelman concludes:
While there are certainly virtues to maintaining a large size roster in fantasy football, it would be neither fair nor reasonable to change the league's roster size after the draft is conducted. If the Commissioner had wanted a nine-player roster, he should have suggested this change before the draft was held -- possibly before the draft order was selected. Not only does the possibility exist that the Commissioner would not have suggested this rule change had the computer granted his team a higher pick, but the possibility also exists that a team such as Hermann's Head might have drafted differently had the Commissioner's proposed rule change occurred prior to the draft. Therefore, for the aforementioned reasons, I rule in favor of Hermann's Head. The Yale Football League roster size shall remain unchanged at eight active players (and just two active running backs) for the 2006 season.
There's some more great stuff on Sports Judge.
Posted By : Michael McCann
LuÃs Cassiano Neves: Guest Blogger
Message posted on : 2007-01-18 - 09:32:00
We are thrilled to have LuÃs Cassiano Neves guest blog. LuÃs heads the Sports Law Practice Group at Miranda, Correia, Amendoeira & Associados, a Portuguese law firm based in Lisbon. He holds a law degree from Lisbon University Law School and an LL.M. in Sports Law from the Nottingham Law School. LuÃs also founded Lex Sportiva, a terrific blog devoted to international sports law. We look forward to his posts.
Posted By : Michael McCann
All Politics is Sports
Message posted on : 2007-01-17 - 21:32:00
Recurring theme warning: Once again, legal and political questions play out in sports. This is precisely why I write about sports--it actually gives a window into broader legal and political controversies.
The latest is the debate over § 502 of the 2005 USA PATRIOT ActRe-authorization, which alters the method of filling vacancies in the position of United States Attorneys. Ordinarily, the U.S. Attorney for a judicial district is appointed by the President with Senate confirmation. Under prior law, if a vacancy arose, the Attorney General appointed an interim successor who served until the President appointed (and the Senate confirmed) a permanent successor or for 120 days, whichever came first; if 120 days expired without a newly confirmed officer, the United States District Court for that district appointed an interim successor to serve until a replacement was confirmed. Section 502 changes this procedure by allowing the AG's interim appointee to serve "until the qualification" of a new U.S. Attorney appointed by the President and confirmed by Congress; no more 120-day limit. This means that the AG can appoint someone who can serve indefinitely, without the President ever having to put a new nominee before the now-Democratically controlled Senate.
This has drawn criticism from Senators Leahy, Feinstein, and Pryor, who have introduced legislation to restore the former process for filling vacancies. Last week, they sent a joint letter to Attorney General Alberto Gonzales, expressing concern that the White House and Department of Justice were pressuring/forcing U.S. Attorneys to resign (11 had resigned or been forced out since March 2006, including several in the past few days) to be replaced by potentially long-term fill-ins with no opportunity for the Senate to review their qualifications. Many of those forced out had investigated or were investigating corruption and misconduct by various GOP officials, raising a suspicion that the President is punishing local prosecutors. Gonzales will testify before the Senate Judiciary Committee tomorrow.
So, to quote Field of Dreams, what's it got to do with baseball?
One of the U.S. Attorneys who was asked/forced to resign today is Kevin V. Ryan, of the Northern District of California, where the BALCO steroids investigation is taking place. It was Ryan's office that convened a grand jury to investigate the leaks that provided the basis for the book Game of Shadows and to the contempt citation and prison sentences for authors Mark Fainaru-Wada and Lance Williams when they refused to reveal the source of the leaks (post here). It was Ryan's office that used subpoenas and search warrants to seize the records on old positive steroid tests on almost 100 Major League baseball players (posts here and here). And it was Ryan's office that has been investigating (although not moving forward on) perjury and other changes against Barry Bonds for his allegedly false grand-jury testimony in the BALCO case.
For this forum, I am agnostic as to the charges by Feinstein, et. al, that the firings are politically motivated or that the administration is punishing prosecutors for going after certain people. But if there is political motivation, I doubt it is in play here. I do not think Ryan's going after Barry Bonds and other baseball players for using steroids and/or lying about it is the sort of thing that would rouse Bush or Gonzales to punish a U.S. Attorney. Nor do I think they would get moved to act against Ryan for seeking to put journalists in jail for protecting
sources.
Still, one of Bonds' lawyers was quoted as saying that the interim U.S. Attorney appointed by Gonzales would likely "throw in the towel" on the Bonds investigation and that a capable, ethical prosecutor will stop "tarnishing" the image of the office by chasing Bonds.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-01-16 - 10:09:00
New this week:Michael Conlin & Patrick M. Emerson, Discrimination in hiring versus retention and promotion: an empirical analysis of within-firm treatment of players in the NFL, 22 JOURNAL OF LAW ECONOMICS & ORGANIZATION 115 (2006)
Christopher T. Pickens, Comment, Of bookies and brokers: are sports futures gambling or investing, and does it even matter? 14 GEORGE MASON LAW REVIEW 227 (2006)
Erin A. Stanton, Student article, Home team advantage?: The taking of private property for sports stadiums, 9 NEW YORK CITY LAW REVIEW 93 (2005)
In addition, our frequent guest Chad McEvoy alerts me to the availability of his new co-authored article, which is not on Westlaw but can be downloaded free of charge from the embedded link:
Mark S. Nagel et al., Major Leage Baseball Anti-Trust Immunity: Examining the Legal and Financial Implications of Relocation Rules, 4 ENTERTAINMENT & SPORTS LAW JOURNAL (2006)
Posted By : Geoffrey Rapp
Is the Homeland Secure Enough for the 'Games'?
Message posted on : 2007-01-15 - 22:52:00
Below is the unedited version of an editorial I authored that was published by Crain's Chicago Business today. The edited version can be found here. The editorial came down in light of the USOC deciding that it would put forth a US bid (either LA or Chicago) to compete with Doha, Madrid, Istanbul, Rio, and Tokyo, on the international stage for the 2016 Games. The USOC's decision came just days after the Department of Homeland Security released its report of tactical interoperable communications ratings among and between American metropolitan areas. The report is interesting, both in terms of the ratings systems and the relative communications preparedness of different cities. A number of cities, including Chicago, have responded that Homeland Security gave no warning of what the findings would be and that encouragement of the efforts undertaken thus far by American cities is contrary to the written report.
Could Chicago's Low Disaster Readiness Score Endanger the Chances for the 2016 Games?
Both the USOC and the IOC indicated that political stability to see the long preparation for an Olympic games through from bid acceptance to closing ceremony is an important criterion, and with Mayor Daley's most serious challenger in Rep. Jackson dropping out of the next mayoral contest to enjoy the fruits of the new Democratic Congress, Chicago appears to be stronger on local government stability.
However, Homeland Security's release of its “Tactical Interoperable Communications Scorecards Summary Report and Findings� on Wednesday may have added a new obstacle to Chicago's bid as the USOC pits the Windy City's bid against Los Angeles.
In light of the poor communication between first responders in the Twin Towers on 9/11 that may have led to the unnecessary death of many NYC firefighters unable to hear NYPD communications to evacuate, Homeland Security sought to assess the interoperable communications between various groups, namely police and fire. The aforementioned report grades urban/metropolitan areas on Governance, Standard Operating Procedures (SOPs), and Usage.
As Olympic officials are very familiar with security issues, from Munich to Atlanta, tactical interoperable communications may be a factor in choosing a location. The scores in the three categories range from early to advanced implementation.
The current score for Chicago: Governance (early implementation), SOPs (intermediate implementation), and Usage (intermediate implementation).
The current score for Los Angeles: Governance (established implementation), SOPs (advanced implementation), and Usage (advanced implementation).
The USOC should keep in mind that the Chicago Urban Area includes the City, Cook County, and 128 municipalities, while the Los Angeles/Long Beach Urban Area includes only 26 municipalities and LA County. Such a disparity in the amount of independent departments that require cooperative communication between each other surely explains part of the disparity between the communications scorecards, but the message from Homeland Security is clear: do better.
Posted By : Tim Epstein
The Legal and Social Policy Implications of Bill Walker's Knee Injury
Message posted on : 2007-01-12 - 00:12:00
In last Saturday's game at Texas A&M, Kansas State freshman Bill Walker tore the anterior cruciate ligament in his left knee. The injury ends the 06-07 season for the dynamic 6-6 Walker, whose play had drawn comparisons to a young Vince Carter and who ESPN's Chad Ford ranked as the third-best NBA Draft prospect among college freshmen (right after Kevin Durant and Greg Oden).
An ACL tear is obviously a serious injury, particularly for a player whose game is based largely on explosiveness and quickness (Celtics fans have been dealing with the same worries for the last two days after Tony Allen's terrible tear of the ACL, medial meniscus, and lateral meniscus). Perhaps the best news for Walker is that he suffered a tear of his ACL in his right knee back in 2003, and was able to fully recover. But you never know what will happen after such a serious knee injury. Just ask Randy Livingston, who, back in 1993, tore his ACL before his first college practice and was never the same.
So what's the legal angle with Walker's injury? He was considering a challenge to the new NBA age limit (and thanks to Michael Ryan of Bearcat News for the link). The age limit, in Article X:I(b)(i) of the NBA-NBPA collective bargaining agreement, But Walker no longer seems poised to commence any lawsuit or negotiation. Such a serious injury alters his draft stock, at least for this year. He will probably spend the next eight months rehabbing his knee rather than dealing with a controversial lawsuit that may no longer be in his best interests.
We might also consider the social policy implications of Walker's plight. Here we have a
19-year-old man who has suffered a terrible injury that threatens what appears to be his most marketable and cherished skill: the ability to excel at basketball. Walker has presumably invested much of his life in honing that skill, probably at the expense of honing other talents and perhaps those skills that are scholastically-related. I have never met him, but like Arthur Agee and William Gates in the extraordinary documentary Hoop Dreams (1994), he has probably been "encouraged" by coaches and sneaker representatives and other self-interested (selfish?) actors to focus on basketball. The advice seemed to be working. But what happens if his basketball career is now over, or if he is no longer the next Vince Carter? Will those same people care about him? If not, who will?
That point lends itself to another point that is closer to the law: consider the human costs of an age-eligibility rule. If Walker had suffered the exact same injury while playing for an NBA team, he would likely have millions of guaranteed dollars coming his way under an existing contract. I know, money doesn't make one whole (despite what we tell our students in torts), but it certainly makes one better off--especially when one comes from financially-disadvantaged circumstances, as do many premier basketball players, and especially when one has invested so much of his learning time to a sport rather than to scholastics or other endeavors. I talked about these points in my posts Not Being Randy Livingston: The Jonathan Bender Story and The Power of Situation: Joakim Noah's Decision to Stay at Florida.
What will be Walker's life story if, because of this injury, he never earns a dime playing basketball? Should we, as sports fans, bear responsibility in making sure that he does alright, or is it okay that we will simply forget about him?
Posted By : Michael McCann
Ticketmaster Helps Chargers Secure Home Field Over Patriots (or at least Patriots' Fans)
Message posted on : 2007-01-10 - 14:33:00
I will be interviewed on tonight's CNBC's On the Money Program regarding the legality of restrictions imposed by the San Diego Chargers in their sale of tickets to New England Patriots fans for this Sunday's matchup between the two teams. Darren Rovell, who runs CNBC's Sports Biz, will be the interviewer. The show will air from 7 to 8 p.m. eastern standard time. I hope you get the chance to watch.
UPDATE 1/13/2007: CNBC has made the segment available at this link (there is a short advertisement, and then the 2 minute and 51 second video appears).
Posted By : Michael McCann
What is the Duty Owed by Sports Writers Voting for the Hall of Fame?
Message posted on : 2007-01-10 - 09:35:00
Excellent article by Tim Cowlishaw in yesterday's edition of the Dallas Morning News (Steroids Issue Still a Judgment Call). Cowlishaw points out that, less than 24 hours before the veteran baseball writers who vote for the Hall of Fame had buried Mark McGwire's first-ballot chances based on a suspicion of steroid use, the football writers and broadcasters who vote for the Associated Press All-Pro team embraced steroid use by putting San Diego Chargers linebacker Shawne Merriman (who actually missed 1/4 of the season because he tested positive) on the first team. While Cowlishaw candidly acknowledges that he wouldn't have voted for McGwire this year if he had had a vote, he also alluded to the problems associated with writers making voting decisions based upon speculation and conjecture:
"But there is a problem with writers taking the moral police role in making these determinations, because we have learned now that Major League Baseball is testing, that steroid users don't always look like steroid users. Even though he also appeared before Congress, Rafael Palmeiro was not on the list of highly suspected steroids users. He's not a big-muscle-type guy. Then, after wagging his finger defiantly, Palmeiro goes out and tests positive. And so have a lot of relief pitchers who also don't fit the Popeye mold... They guess a decisive "guilty" on McGwire based on the size of his forearms. But they say an emphatic "no chance" when confronted with Cal Ripken Jr.'s amazing consecutive-games streak of 2,632. Look, I am not suggesting anything about Ripken. Just pointing out that it is somehow completely off limits to guess how a player managed to push himself to play every day for more than 14 years, while it's a duty to guess how a player added 30 to 40 pounds of muscle during the course of a career."
Cowlishaw is absolutely right that it is all speculation. The fans and the media are definitely permitted to speculate and formulate opinions about whether McGwire took steroids, whether they affected his performance, and whether there should be an "asterisk in the record books." But should writers voting on post season awards, including the Hall of Fame, be held to a different or higher standard, or at a minimum, a standard that is clearly defined? [Maybe it is clearly defined, and I'm just not aware of it.] I mean we're talking about the Hall of Fame, not some all-time top ten best players list put together by some columnist or blogger. Hall of Fame voters, in essence, seem to be permitted to make their own subjective determinations that McGwire did in fact take something. And even further, that the something they think he took is probably on the banned substance list that was subsequently developed and tested for after McGwire played.
What do the voters want here? If McGwire came out today and said that he never took an illegal steroid or a substance that is currently on the banned substance list and tested for, would they be satisfied? Probably not. Is it that they are upset that McGwire isn't talking about it, and they want him to speak out to the public about the dangers of steroid use? I guess we'll never really know for sure, and the answer may be different depending upon which voter you ask. While there is an element of subjectiveness in determining who gets in the Hall anyways based upon performance, at least we can say that those determinations are based upon an analysis of objective-based performance statistics.
The purpose of this post is to inquire about the parameters or standards for determining who gets in the Hall and who doesn't, not to engage in the steroid debate. So what is the duty of a sports writer in voting for the Hall of Fame? I don't mean a duty in a strictly legal sense, but should it be objectively defined? Or is it
sufficient for the writers to be permitted to take on a broad "moral police role" as Cowlishaw alluded to. If so, what are the perameters of that role? Presumably writers are permitted to make decisions that even go beyond mere speculation over steroid use, for example the use of illegal narcotics (and speculation of such use) or other acts of perceived misconduct on and off the field, unless that role is more narrowly defined of course. And if the standard is that broad, then why not just let the fans vote, similar to the way the fans vote for the all-star games? Because fans are just as qualified as the writers--maybe even more qualified--to make these types of decisions.
Posted By : Rick Karcher
Title IX and Practice Squads
Message posted on : 2007-01-09 - 22:57:00
Over at the University of Chicago Law School Faculty Blog, Saul Levmore has this interesting post about proposals being made in several conferences and before the NCAA to ban the practice of women's basketball teams practicing against teams of male students. Opponents of the practice are suggesting that the practice violates Title IX, although Dean Levmore argues (correctly, I think) that it is hard to see what the Title IX problem is.
Posted By : Howard Wasserman
New Sports Law Scholarship
Message posted on : 2007-01-09 - 15:37:00
New this week:Roger I. Abrams, Game-fixing in the National Game, 1 FLORIDA ENTERTAINMENT LAW REVIEW 1 (2006)
Zachary C. Bolitho, Note, When fantasy meets the courtroom: an examination of the intellectual property issues surrounding the burgeoning fantasy sports industry, 67 OHIO STATE LAW JOURNAL 911 (2006)
Posted By : Geoffrey Rapp
Illinois Appellate Court Clarifies "Contact Sports" Exception in Tort Law
Message posted on : 2007-01-08 - 13:33:00
In Karas v. Strevell, 2006 WL 34849138 (Ill.App. Dec. 29, 2006), an Illinois appellate court has offered an extensive (53-page) discussion of the state and scope of the so-called "contact sports" exception in tort law, which provides that co-participants in "contact sports" have no cause of action for injuries sustained due to the negligence of other participants (although "wanton and willful" or reckless misconduct remain actionable). This decision is of particular interest in that it interprets and expands upon Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975), a leading case on the tort liability of sports participants that has found its way into a number of sports law casebooks. I have written on the subject of co-participant liability in posts such as this one; Greg also covered the issue in posts like this one.
In the new case, Karas, the court confronted an action filed on behalf of a youth hockey player against two other players and the hosting league, among other defendants. The plaintiff was checked from behind in violation of a league rule by two opponents; at the time of the contact, plaintiff was near the boards and partially bent down; the collision caused plaintiff's head to strike the boards and resulted in serious injuries. Notably, on the back of the plaintiff's jersey appeared the word, "STOP," to reinforce the league's no-checking rule.
Against the players, plaintiff claimed recklessness and wanton and willful misconductPlaintiff does not allege a mere rules violation, but, given [his] vulnerable position and the "STOP" warnings on players' jerseys, that [the defendant players] went beyond conduct ordinarily accepted during the course of competition and into willful and wanton conduct. . . .
[T]he factual allegations above meet the requirements for pleading a cause of action based on willful and wanton condcut. Plaintiff alleged not only that [defendant players] broke the rules of hockey, but that they broke a rule with such special emphasis that players' jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding [defendants'] actions--they allegedly checked [plaintiff] when he was defenseless and in a position of acute vulnerability--that evince a conscious disregard for his safety.
The court further noted that full development of a factual record -- particularly with respect to the location of the puck at the time the defendants struck the plaintiff -- might justify a conclusion that defendants did not act in a wanton and willful manner.
There's a lot more good stuff in the opinion about co-participant liability on which I don't have room to comment here.
Against the league, plaintiff claimed negligence, arguing that the hockey league had failed to enforce aggressively its no-checking rule. The league argued that the contact sports exception should apply to its liability as well, and on that basis the trial court had dismissed those claims. On appeal, plaintiff argued that the league and other organizational defendants, not technically "participants" in the hockey game, owed him a duty of ordinary care actionable in negligence.
After wading through the morass of whether the contact sports exception is a "no
duty" rule or an "assumption of risk" rule, and after noting the interplay between the two, the court opined that a participant in a sporting event is barred from suing a non-participant for mere negligence:
[T]he consent granted by each participant is not specific to the similarly situated participants, but instead to the risks associated with the game, regardless of whether the risks stem from co-participants or some other source. . . .
[B]ased on assumption of the risk principles, it stands to reason that the contact sports exception should be extended to protect the organizers and coaches from liability for negligence leading to player conduct that cannot otherwise form a basis for liability due to the contact sports exception.
I find the court's reasoning on this point rather odd. The court seems to complicate tort law considerations by talking about organizational "negligence leading to injuries caused by other parties' negligence," versus "negligence leading to injuries caused by others parties' recklessness." The court would bar a plaintiff's suit under the former theory, but allow it under the latter. In effect, the court is saying that a non-participant owes a general duty to avoid negligence, but not negligence leading to injuries caused by other-party negligence.
Huh?
Negligence of 3rd parties can be addressed using ordinary tort principles of forseeability of intervening causes. Indeed, the court's approach seems to upend the normal concept of "foreseeability." The court allows actions against a league that negligently fails to enforce its rules where the failure to enforce those rules is a "but for" cause of a player's recklessly injuring another player. At the same time, the court would disallow a case where a league negligently fails to enforce its rules where that failure is the "but for" cause of a player's negligently injuring another player. What is odd about this is that, ordinarily, an intervening act is less foreseeable -- and therefore more likely to sever the chain of proximate cause -- when it is reckless or intentional, rather than simply negligent. The court's position makes it easier to recover for the less foreseeable intervention.
Some of this morass could be avoided if plaintiffs simply allege recklessness by the non-participant dfendants. Indeed, this plaintiff did so, but as the court justifiably concludes, the plaintiff's allegations with respect to the league did not amount to wanton or willful misconduct.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2007-01-05 - 13:32:00
New these past two (wonderfully restful) weeks:M. Bradford Preston, Note, Sheldon Kennedy and a Canadian tragedy revisited: a comparative look at U.S. and Canadian jurisprudence on youth sports organizations' civil liability for child sexual exploitation, 39 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1333 (2006)
Adam L. Sheps, Note, Swinging for the fences: the fallacy in assigning ownership to sports statistics and its effect on fantasy sports, 38 CONNECTICUT LAW REVIEW 1113 (2006)
Posted By : Geoffrey Rapp
If you build it, they will come...
Message posted on : 2007-01-05 - 10:44:00
Mario Lemieux and Pittsburgh Penguins executives made the rounds yesterday (1/4), touring and meeting with representatives from the Sprint Center, a state-of-the-art arena currently under construction in Kansas City, Missouri, followed by an evening meeting with Pennsylvania Governor Ed Rendell. Kansas City, which has long aspired to bring a major professional hockey or basketball franchise back to the city (the New Jersey Devils NHL franchise left in 1976 first for Colorado, then N.J.; the NBA's Kings moved to Sacramento in 1985), took the somewhat risky strategy in the summer of 2005 of beginning construction on an arena without having any major tenants. This "if you build it, they will come" strategy, while financially risky (imagine the potential losses likely to occur if the building goes a number of years without a major tenant), has been successful in the past. The City of St. Louis built what we now know as the Edward Jones Dome in the early 1990's without a major tenant in an effort to woo an NFL team to the city to replace the former St. Louis Cardinals football team. The Rams moved there in 1995 just as the stadium was nearly completion. Tropicana Field, then the Florida Suncoast Dome, was built in 1986 in an effort to lure an MLB team to the Tampa-St. Petersburg area. After high-profile recruitments of the White Sox, Mariners, and Giants, MLB eventually awarded an expansion francise to the stadium in 1995, nearly ten years after construction.
The Penguins situation appears to be a classic bidding war for the right to house the team with the Sprint Center and Kansas City on one side and Pittsburgh/Allegheny County/Pennsylvania on the other. Mario Lemieux has made it clear that he would prefer to keep the team in Pittsburgh, where attendance has been strong, if a new arena can be built, a position the NHL supports. The Sprint Center reportedly offered free rent and a free ownership stake in the arena during yesterday's meetings. It will be interesting to see in what direction these arena negotiations head over the next few weeks.
Posted By : Chad McEvoy
Coaching Movement and Buyout Clauses
Message posted on : 2007-01-03 - 11:45:00
As I periodically checked my web browser this morning at work to keep an eye on the reality show-like drama involving Nick Saban, the Miami Dolphins, and the University of Alabama, I was struck by the importance of well-written buyout clauses in coaches' contracts. It would seem to me that if one aspires to be a coaches' agent in intercollegiate or professional sports, they should take an extra few semesters worth of contract law while in law school, with much of that work focused exclusively on writing solid buyout clauses. While I'm of course being a bit facetious here, it is somewhat mind-boggling how few coaches' contracts actually run their full course and how many are terminated by either the quick-triggered administrator, eager to replace a coach at the first sign of trouble (see Maturi, Joel, athletic director at the University of Minnesota, who last week fired Glen Mason, the school's football coach, who had won at least six games in seven of the past eight seasons, a feat thought by many to be nearly impossible at a school that had only won 6+ games in six of the previous 21 seasons), or the coach with the wandering eye, always looking to leave for greener pastures, particularly when green is the color on small, rectangular pieces of currency (see Saban, Nick).
While most of these buyout clauses seem to work relatively seemlessly, we do find the occassional snafu, such as the Jim O'Brien/Ohio State basketball case from recent memory. To all of you aspiring coaches' agents out there, please pay attention extra during lecture in contract law class and spend a little extra time perfecting those buyout clauses.
Posted By : Chad McEvoy
Popularity from Sports to Politics and Back
Message posted on : 2006-12-31 - 07:17:00
This Bush-for-Baseball-Commissioner thing is taking me in a bunch of different directions. Not bad for a random thought hatched over Christmas-Day Chinese food with my family.
One commenter questions my suggestion that Bush's unpopularity would not necessarily bother people or cause them to stop watching baseball. He raises a really interesting question about contextual popularity or unpopularity of public figures that is beyond the scope of this forum. But sports links are everywhere, so I thought I would respond:
George W. Bush, the President, is unpopular. Many, many people do not like his policies, his politics, or the manner in which he conducts himself in the Office of the President of the United States. But that does not necessarily translate into a general dislike of George W. Bush, the Person (whom I do not know). It will translate with some people. Many will respond negatively to anything Bush does, especially those who believe he is unintelligent. Many also see Bush not only as following bad policies, but as following illegal (and thus impeachable) policies. The commenter captured the latter point when he used the analogy of the CEO of Enron not becoming beloved as President. The CEO of Enron was unpopular not because he did a bad job as CEO (lots of CEOs do a bad job), but because he did illegal things.
Note, however, that those objections to Bush as commissioner are based on his ability, as opposed to his popularity--the assumption that because he is a bad president, he would be a bad commissioner. Maybe so. But if we focus solely on popularity, I do not know whether or not I would dislike or disagree with Bush's ideas and views in a different context, such as running baseball. Maybe we share a dislike for the wild card, inter-league play, the designated hitter, and the obscenely small strike zone (to cite a few examples). And maybe I would appreciate his frat-boy-charming personality wielded towards ends I like.
The converse of this phenomenon--athletic popularity translating into political popularity--is at the heart of the growing trend of former professional athletes running for public office. The most recent examples were Lynn Swann's unsuccessful run for governor of Pennsylvania and Heath Shuler's successful run for U.S. House of Representatives from North Carolina, as well as Charles Barkley's continued promises/threats to run for governor of Alabama in 2010. All are counting on name recognition, reputation, and popularity built in one context carrying into a different context. Shuler, of course, had to overcome the fact that he was not a very good NFL quarterback.
In any event, we hope the voters will consider the candidate on the merits (on his ability to perform in office) before supporting him and not automatically assume that popularity and likability on the playing field means likability in public office. So why should the reverse not be true--unpopularity (again, distinct from competence) in political office does not automatically mean unpopularity in a sports-related job?
Posted By : Howard Wasserman
More on Bush as Commisssioner: Someone is Reading
Message posted on : 2006-12-30 - 09:36:00
Jonathan Weiler at Sports Media Review responds to my earlier post about George W. Bush being the next Commissioner of Major League Baseball.
Weiler suggests this will not happen (or at least should not happen) for three reasons:
1) Baseball commissioner no longer can be a celebrity/figurehead position. The big-time-business nature of modern professional sport requires a saavy, hands-on, somewhat visionary, detail-oriented, technocrat/manager, all things we can agree (whatever one's politics) Bush is not.
2) Bush is wildly unpopular and divisive, particularly in the Blue States, so it might be a bad PR move for baseball.
3) Bush was not really a "baseball guy" when he was involved with the Rangers and was not involved in day-to-day baseball operations, so he does not even bring that to the table. Mostly, he was the public face of the team, whose name (Papa was POTUS at the time) carried weight.
All good points that weigh against MLB making such a move. And, as Weiler notes, I was half joking in the original post. But not entirely. So let me respond to each as a way of defending the idea:
1) MLB long functioned in a decentralized (federalist, if you will) system in which the separate league commissioners did much of the day-to-day management and the commissioner sat atop the pyramid as the public face. That no longer is true, a result of one of Selig's innovations to centralize operations and make it more akin to the NFL and NBA set-up. So the role of commissioner is, indeed, different, requiring more of a hands-on manager. But I could envision MLB (although perhaps not the other major professional sports) still going the celebrity/figurehead route. I think it has to do with baseball still being the highest-profile sport, even if the NBA is more popular.
Plus, we have something of that in place now. Selig is the public face of the game (for better or worse). But he delegates a lot of responsibility, and limelight, to his underlings, notably Robert DuPuy and (when he was in the job pre-2005) Sandy Alderson. Certainly we see and hear more of them than of David Stern's deputies (with the exception of punishment chief Stu Jackson, but that is a different problem). Is it conceivable to have Bush as commissioner and an experienced and high-profile baseball exec (say, Theo Epstein?) as President/COO or Chief of Baseball Operations?
2) Yes, Bush is unpopular. But presidents have a way of becoming more popular once they leave office (see, e.g., Nixon, Richard). I would not envision a significant number of people finding Bush so distasteful that they will boycott baseball if he is commissioner. Most fans would even say it is bad form to boo or heckle Bush at a game. In other words, I am not sure his political unpopularity would carry-over into this new role.
3) Yes, Bush is not a hands-on baseball guy. But he is a good politician, something that would help MLB in its dealings with Congress (steroid eruptions, anti-trust rumblings) or with state and local governments (ballpark deals, etc.). As I said in # 1, MLB might believe that such political skill at the head, with a skilled baseball person at the right hand, is a good way to go.
Again, I am or endorsing it. Just suggesting the possibility.
Posted By : Howard Wasserman
Ninth Circuit Ruling Isn't Just About Steroids in Baseball
Message posted on : 2006-12-28 - 17:20:00
The Ninth Circuit's ruling, as discussed by Howard Wasserman earlier today, has broad implications regarding the ability of the government to seize evidence in all criminal investigations that go beyond just a few baseball players alleged to have taken steroids. While the opinion is 115 pages long, here are some of the pertinent facts taken directly from the opinion:
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data� (designated “computer personnel�) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel� would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.
2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled by its original compiler as the “Tracey� directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst—here the advice of Computer Investigative Specialist Agent Joseph Abboud—agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.
3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.
Violations of due process and Fourth Amendment privacy rights get me fired up fairly easily, and this case deals with the latter. Simply, by allowing investigators to use the initial warrant as a basis for gathering gobbs of incriminating information with respect to non-targeted individuals, the investigators, in effect, were able to use a generalized search warrant to obtain evidence without probable cause. The court used the difficulty of retrieving and separating electronic data as an excuse to allow federal investigators full discretion to not only retrieve private and confidential information about thousands of individuals that are not even the subject of the warrant and for which there is no probable cause, but to also determine when there is "intermingling" such that an on-site search would be impracticable. This puts way too much discretion in the hands of federal investigators. Even further, the court didn't place any limitations on the government's use of incriminating evidence obtained with respect to non-targeted individuals.
This decision can't be the right result. What happened to the requirement of "particularized" search warrants? This decision has nothing to do with whether baseball should have a stricter steroid policy or no policy, nor whether all steroid users in baseball should be ousted. This ruling affects every citizen, because virtually all confidential
records and information is stored and intermingled in electronic form on computers (hospital records, employment records, etc.). Isn't the more logical and reasonable approach to have a magistrate review and segregate the intermingled electronic data BEFORE allowing the government to seize and review it? --especially in circumstances when the evidence is not in jeopardy of being destroyed. That is the only way to ensure a proper balance between the government's criminal investigatory efforts and the privacy rights of non-targeted individuals.
Posted By : Rick Karcher
Federal Government May Review MLB Player Drug Tests
Message posted on : 2006-12-28 - 11:19:00
In a lengthy 2-1 opinion in United States v. Comprehensive Drug Testing, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal government could keep and review (under direction and supervision of a Magistrate Judge) records of drug- tests from more than one hundred Major League Baseball players. As part of its BALCO investigation, the government issued grand-jury subpoenas and obtained search warrants for computer files and paper information held by CDT and another company, Quest Diagnostics; both companies had performed drug tests on MLB players in 2003 pursuant to a contract with MLB. The government was looking for (and actually entitled to seize) only information on eleven specific players.
But in the course of the search, agents came across "intermingled" files and documents containing information on many other players who were not believed to have any connection to BALCO, in addition to the eleven targets. Under the majority's holding, the government may be able to retain and use initially non-seizable evidence that was initially mixed-in with seizable evidence. That determination will be left to the Magistrate.
For MLB's purposes, the impact of the ruling is not clear. News outlets are talking about the effect this could have on the investigation into perjury before the grand jury by Barry Bonds, apparently on the assumption that the records may show that Bonds did use steroids prior to giving his testimony. The absence of such evidence to this point may explain why the perjury investigation has not gone anywhere. Prosecutors generally (and properly) are reluctant to pursue perjury charges in a he said/he said situation; non-testimonial evidence that Bonds took performance-enhancing drugs might strengthen the case.
The records also could show just how pervasive steroid use is in baseball. The testing done in 2003 was anonymous and not under threat of penalty and MLB has downplayed what those tests showed.
Finally, since the BALCO grand jury has been famously leaky, there is a good chance that the names of some of these hundred players are going to get out to the public at some point.
Posted By : Howard Wasserman
Sports Prediction for the New Year
Message posted on : 2006-12-27 - 09:51:00
A random prediction for the new year: George W. Bush will be the next Commissioner of Major League Baseball.
Current Commissioner Bud Selig announced earlier this month that he will retire when his contract expires at the end of 2009 (although apparently, back in in 2003 he said the same thing about retiring in 2006, so stay tuned). Bush will be out of a job at 12:01 p.m. on January 20, 2009. And he will need something to do, since one cannot imagine him monitoring foreign elections and fighting world health battles.
Baseball commissioner always has been a job that has attracted people from politics and public service. Commissioner A.B. "Happy" Chandler served as Kentucky's Governor and U.S. Senator both before and after his term in baseball. Chief Justice Fred Vinson considered resigning from the Supreme Court to take the job after Chandler's term ended in 1951. Names such as Mario Cuomo and George Mitchell have surfaced in the past as potential candidates. And, of course, Bush used to own the Texas Rangers, so he combines a political background with baseball-insider status, which would make him very appealing to the owners.
And there is the fact that this may be the job Bush wanted all along. Recall that Commissioner Fay Vincent was forced out of the job in 1992 by an owners' vote of no confidence and replaced, on an "interim" basis, by Selig, then owner of the Milwaukee Brewers. This move was the prelude to the owners' hard-line stance in the 1994 players' strike that forced the cancellation of the 1994 World Series and a one-month delay in the start of the 1995 season. And a search for a permanent commissioner went along. According to Vincent's 2002 book, The Last Commissioner, Bush let both Selig and Vincent (who was a friend of Papa and Barbara Bush) of his interest in the job. Selig purportedly told Bush that he was "his man but that it will take some time to work out." At the same time, Bush was considering running for governor of Texas. With the clock ticking (and Vincent suspecting, ultimately not incorrectly, that Selig wanted the job for himself), Bush gave up on the commissioner's job and ran for public office. He won the Texas governorship in 1994 and the rest, as they say, is history.
It would be an interesting turn for Bush to get his dream job--17 years, and many world events, later.
Posted By : Howard Wasserman
Titans Sued for Mascot's Behavior
Message posted on : 2006-12-20 - 08:15:00
This story isn't as interesting as Tara Conner, but last Friday, ex-Saints fourth string quarterback Adrian McPherson filed a lawsuit against the Tennessee Titans because their mascot hit him with a golf cart while he was warming up on the sidelines before the second half of an August exhibition game. The short 4-page complaint (actually three because the fourth page contains the signature block), which can be accessed at The Smoking Gun, does not state what his injury was, but does seek $5 million in compensatory damages and $15 million in punitive damages. It's unusual to make a request for relief for that amount of money without even describing the injury. But according to an AP release, McPherson incurred "a deep bruise" in his right knee, and the Saints cut him three weeks after the incident. The complaint, however, spins it a little differently stating that McPherson was forced to miss the remainder of the pre-season, and was ultimately placed on injured reserve which meant he was forced to miss the entire NFL season.
Assuming the person performing as the mascot is an employee of the Titans and not an independent contractor, the Titans would be vicariously liable for personal injury proximately caused by his unreasonable conduct. Driving a golf cart into an opposing team's player warming up on the sidelines is most likely negligent. But McPherson has the burden of proving his damages. What's a knee bruise worth to a fourth string quarterback? Definitely not $5M. McPherson alleges that the injury forced him to miss the entire NFL season. However, the Titans will argue that the reason he missed the season is that he was cut by the Saints as the fourth string QB and would have been cut anyways, not because of the knee bruise. The Titans can also point to the fact that he now plays in the Arena Football League, and no other NFL team was interested after he was cut.
What is unfortunate for the Titans, however, is that damages are typically a question of fact for a jury to decide, especially in this situation because it involves determining McPherson's worth as a player as well as the issue of whether he would have made the Saints' roster if he had not been injured. So unless this mascot is an independent contractor, the court would probably not dismiss it as a matter of law on the liability issue.
My prediction is that the Titans will sit on this case for awhile. If McPherson continues playing in the AFL, it tends to establish that the injury he incurred was not that severe. And if he doesn't ultimately get picked up by an NFL team, it tends to show that he would have been cut by the Saints anyways.
Posted By : Rick Karcher
John Rocker and Free Speech (Again)
Message posted on : 2006-12-15 - 05:50:00
John Rocker is back. Rocker, remember, is the former reliever who went on an anti-homosexual, anti-immigrant, anti-grunge, anti-unwed-mother, anti-New York, anti-7-Train diatribe in a 1999 Sports Illustrated article. This got him a one-year (later reduced by an arbitrator) suspension from Major League Baseball, made him a pariah among fans, and was the first step in a strangely precipitous decline in his pitching ability that had him out of baseball a few years later. Rocker was the subject of a lengthy interview on Deadspin.com, apparently triggered by the correspondent's desire to learn what Rocker thought of the Michael Richards controversy.
The interview shows that Rocker has not changed his mind about many things. He is writing a book containing "more conservative Republican rantings." Muslims are too sensitive and easily offended. He is promoting a campaign called "Speak English." The SI story did not present the correct version of his comments or events and took things out of context. Michael Richards will bounce back and work again, although Rocker was not given such leeway even after he apologized. His girlfriend is Black and two or three of his best friends are Dominican or Puerto Rican. And Jeff Pearlman, the author of the article, is a "liberal Jew from New York" with an agenda. The last point prompted this response from Pearlman on espn.com's Page 2.
One problem with trying to develop a framework to discuss athletes' speech is that for every Muhammad Ali, John Carlos, Tommie Smith, Toni Smith (the college basketball player who in 2003 turned her back to the flag during the national anthem as a war protest), or Carlos Delgado, there is a Rocker. The former involve (at least viewed with a modern lens) involves unpopular, but at least arguable political stands that the majority generally recognizes as within the realm of acceptable debate and dissent. The latter made comments that, while political in the broad sense and unquestionably constitutionally protected, run afoul of what society considers acceptable discourse. And MLB and its teams, as entities with their own expressive interests, may want to make clear their objection to the former but not the latter.
But both are within the bounds of constitutional protection and we do not draw legal lines between them in the pure First Amendment context of government action--neither Ali nor Rocker could be subject to legal penalty for his respective expression. So, if we are discussing a framework (albeit not a First Amendment one, obviously) for what professional leagues should or should not do in response to athletes' off-field speech, do we still have to avoid such lines? It follows that, if we believe (as I think most people do, now) MLB should not punish Carlos Delgado for his war protest and Muhammad Ali should not be stripped of his title for refusing military induction on relio/political grounds, it becomes more difficult to justify Rocker's suspension for his comments.
Posted By : Howard Wasserman
Leaking Information: National Security and Sports Security
Message posted on : 2006-12-14 - 23:23:00
Bobby Chesney, Heidi Kitrosser, Jalk Balkin, and Marty Lederman all blogged recently about a case brewing in the United States District Court for the Southern District of New York involving a federal subpoena issued to the ACLU seeking confiscation of "any and all copies" of secret government documents leaked to the organization. The ACLU this week moved to quash the subpoena. The crux of its argument is that a subpoena to seize all copies of these documents is the functional equivalent of an injunction against publication of the contents of the documents, which generally is prohibited by the First Amendment and the landmark Pentagon Papers case. This is only the latest of many controversies involving federal-government efforts to punish leaks by pursuing and seeking to punish, in various ways, the recipients (often the media) of leaked information.
What's it got to do with baseball (or any other sport for that matter)?
One recent example of such pursuit involves San Francisco Chronicle reporters Mark Fainaru-Wada (a former journalism-school classmate of mine, although I did not know him) and Lance Williams, authors of the 2006 book Game of Shadows. The book reveals, in detail, Barry Bonds' alleged steroid use, based in part on leaked testimony and evidence from the grand jury investigation into BALCO. The book put teeth into the widespread belief that Bonds used steroids to produce his dramatic late-career evolution into the greatest hitter who ever lived (sorry, Teddy Ballgame); may have committed perjury before the grand jury; and may have evaded federal tax laws by not disclosing certain income. Fainaru-Wada and Williams have been sentenced to federal prison for contempt for refusing to reveal the source of the leaked evidence (although they remain free pending appeal).
What is interesting about the Fainaru-Wada/Williams case is the interplay among the myriad ways that the federal government could pursue leaks to the media and the publication of leaked information on one hand, and the First Amendment on the other. And, once again, a free-speech issue plays itself out in a controversy over our beloved sports. (Full Disclosure: I am supervising an FIU College of Law student writing a law review article on this interplay in the Fainaru-Wada/Williams case).
How can government punish a particular leak and, since law works through deterrence, stop leaks in the future? Consider several options and their constitutionality:
1) Enjoin publication of the leaked information. Not allowed under the First Amendment, unless the information to be published concerns specific troop locations and movements or similar information that could immediately threaten lives. Certainly not satisfied in Bonds' case, where the information concerns Bonds' allegedly unlawful/unethical activities.
2) Punish publication after the fact. As I discussed here, Bonds tried this when Game of Shadows was about to be punished. He sought an
injunction that the authors and publisher be made to give up any profits on the book, arguing that, because it was based on leaked information, it constituted an unlawful or unfair business practice. The argument failed (properly) because of a key First Amendment principle that one cannot punish (by criminal, civil, or other liability) the publication of truthful information, lawfully obtained, on a matter of public concern. Since nothing prohibits the receipt of leaked grand jury testimony (as opposed to actually leaking it) and cheating in baseball is a matter of public concern, Fainaru-Wada and Williams were protected from such an injunction.
3) Convene a grand jury to investigate the leak, with an eye towards punishing the leaker; subpoena the reporters to testify and reveal the leaker's identity. If the reporter reveals the leaker, the government can prosecute the leaker--and the reporter can forget about ever getting a confidential source to talk again. If instead, as generally will happen, the reporter refuses to reveal the leaker's identity, jail the reporter for contempt of court for refusing to cooperate with the grand jury.
This is, of course, precisely what happened in this case. But the practical effect is the same: Reporters will be extremely reluctant in the future to receive and publish leaked confidential information, even on matters of as great public concern and import as cheating within The National pastime, for fear of having to reveal their sources. And potential sources will be similarly reluctant to leak, despite the public good to be served. The government gets, in a sense, what it wants: No more leaks or at least no more publication of leaks.
The ACLU case now reveals a fourth way. Suppose, in the Game of Shadows case, the government had learned of the leaks to the Chronicle reporters before the book came out, while they still were writing the book. And suppose the government issued to them a similar subpoena, demanding any and all copies of the testimony and evidence from the grand jury. The practical effect would be to freeze Game of Shadows (and any newspaper stories based on the material) in its tracks--just like an injunction against the book.
We shall see how the ACLU subpoena plays out. But, as always, there is a sports link.
Posted By : Howard Wasserman
Does Baseball Need to Broaden its "Other Activities Clause" to Include the Nintendo Wii?
Message posted on : 2006-12-14 - 14:47:00
Out of Detroit today comes the news that star pitcher Joel Zumaya's playoff sputter may have been due to excessively enthusiastic strumming of the Playstation video game "Guitar Hero." According to the Free PressThe Tigers are satisfied they won't see a recurrence of the right wrist and forearm inflammation that sidelined Joel Zumaya for three games of the American League Championship Series.
Why? Club president and general manager Dave Dombrowski told WXYT-AM (1270) on Wednesday the team had concluded Zumaya's injury resulted from playing a video game, not from his powerful throwing motion.
Did Zumaya breach his contract? As readers are aware from our discussion of Ben Roethlisberger's misadventures in motorcycling, sports leagues frequently bar players from engaging in dangerous outside activities. Major League Baseball's provision, however, is more limited than the NFL's. It provides:The Player agrees that he will not engage in professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.
In other words, baseball's clause only involves dangerous "other sport[s]", not other activities. While some Gamers might argue that video games are a sport (if poker is, why not?), that's probably not going to cut it in contract interpretation land.
Should baseball broaden the scope of its clause to include more general dangerous activities? Amidst the news of the rash of injuries caused by the Ninendo Wii, maybe the times call for a video game-injury clause. HT to Fark.
Posted By : Geoffrey Rapp
Lamar Hunt: A Sports Law Memorial
Message posted on : 2006-12-14 - 12:06:00
With the passing of Lamar Hunt, it seems appropriate to reflect upon some of the great cases and moments in sports law in which he was involved. Some of the more memorable published opinions:
American Football League v. National Football League, 205 F.Supp. 60 (D.Md. 1962), aff'd 323 F.2d 124 (3rd Cir. 1963)
Hunt was the owner of the AFL Dallas Texans; the AFL sued the NFL, claiming "monopolization, attempted monopolization and conspiracy to monopolize major league professional football." According to the court,Among others who applied for NFL franchises in 1957 and 1958 w[as] Lamar Hunt, of Dallas, . . . [The NFL] suggested [Hunt] try to purchase the Chicago Cardinals and transfer that franchise. [Hunt] conducted unsuccessful negotiations with the [Chicago team's owners]. . . .Hunt, having been rebuffed in his efforts to purchase the Cardinals or obtain a new NFL franchise, began secretly to plan and organize a new league. He was then 27 years old, without experience in professional sports. He surveyed various cities and made tenative overtures to individuals who seemed likely prospects for becoming owners of franchises.
North American Soccer League v. National Football League, 465 F.Supp. 665 (S.D.N.Y. 1979)
The NASL sued the NFL over the NFL's "cross-ownership ban," which prohibited NFL owners from owning other sports franchises. According to the court,An important element of stability for the NASL has been furnished by individuals or families who own member soccer clubs, and also own NFL football clubs. Perhaps the foremost among these "cross-owners" is Lamar Hunt of Dallas, Texas, a sporting world legend in his own time. Hunt, as owner of the Kansas City Chiefs football team, was in the early 1960's one of the founders of the American Football League, subsequently merged with the NFL. Hunt is now chairman and sole owner of the NFL Kansas City franchise. Hunt also is a part owner of the Chicago Bulls of the National Basketball Association, and the founder of the World Championship Tennis circuit. In 1967 Hunt purchased a Dallas soccer franchise which, in 1968, became the NASL's Dallas club, called the Dallas Tornado. [An] affidavit pays eloquent and, in my judgment convincing, tribute to the past and continuing importance to the struggling NASL of Hunt's presence and participation. . . .
[T]he NFL cross-ownership ban [i]s a source of harm to the NASL sufficiently grave and immediate to satisfy Second Circuit and Clayton Act Standards. Loss of the stabilizing Hunt . . . presence[] would be injurious in itself. . . .
The issues presented are interesting, complex and to a degree novel, such as the NASL's perception of wealthy, sportsminded individuals as components of a market for which rival leagues compete. One suspects that until now Mr. Hunt had thought of himself as a competitor, and not a commodity. . . .
Defendants have submitted an exchange of letters between Lamar Hunt and Pete Rozelle. . . . The correspondence concerns Mr. Hunt's willingness and efforts to comply with the NFL policy resolutions on cross-ownership. Mr. Hunt's letters reveal his concern with being forced into divestiture at a time when there was little or no market for NASL franchises. His perceptions as to investor reaction to the sale of a "Hunt" business are instructive:
"The soccer investment of myself and my children (for which I am obviously responsible) is a Very substantial one unfortunately, at this point more than I expected. Though the picture looks infinitely brighter for the sport, it is still a long way from reaching fruition for the investors and, in fact, at present there is virtually no market for a going club especially one owned by a 'Hunt.' (We have a historically bad record for selling any business for buyers seem to feel that anything we are selling must really
be a 'dog.'"
North American Soccer League v. National Football League, 505 F.Supp. 659 (S.D.N.Y. 1980), rev'd 670 F.2d 1249 (2nd Cir. 1982)
The court wrote,We must visualize individual sports team investors such as Lamar Hunt (NASL Dallas Tornado and NFL Kansas City Chiefs), . . . as the economic equivalents of cellophane, finishes and fabrics, shoes, or protective systems.
Posted By : Geoffrey Rapp
Did Daisuke Matsuzaka "Overrule" Scott Boras?
Message posted on : 2006-12-13 - 20:11:00
The Boston Red Sox have signed Daisuke Matsuzaka, the 26-year-old Japanese pitcher whose agent, Scott Boras, had adamantly contended was worth between $15 million and $20 million a year. During the 30-day-window in which the Sox could negotiate with Matsuzaka, Boras repeatedly threatened that Matsuzaka would return to Japan unless he signed a deal worth in excess of $100 million over six years.
But to the surprise of many baseball experts, Matsuzaka has agreed to a much smaller figure--try a half. The Red Sox will pay him $52 million over six years. Sure, that's still an insane amount of money, but it seems that Boras didn't get anywhere near what he told the world he would get.
So what happened?
It's not yet clear, but I have to imagine that Matsuzaka felt that he could not return to Japan. Not only did his team, the Seibu Lions, bid him an emotional farewell in front of 36,000 fans, but they are apparently in financial troubles and really need the $51 million the Sox agreed to pay if Matsuaka signed. So perhaps returning to Japan was not a realistic option for Matsuzaka if he was not willing to absorb a serious reputational cost. And it's possible that Boras was aware of this all-along, had hoped the Red Sox and the baseball world would think otherwise, but gradually realized that the Red Sox saw through the veil.
It's also possible that Matsuzaka simply overruled Boras. Boras is known for maximizing the financial value of his clients, but he's less well regarded for placing them in situations where they thrive. Earlier this week, ESPN's Buster Olney had this revealing comment about A-Rod's contract with the Rangers:
A few months after Alex Rodriguez signed his $252 million contract with the Texas Rangers, a deal negotiated by Boras, A-Rod was quoted in a New York newspaper as saying that he had really hoped to sign with the Mets. That seemed utterly bizarre, and a little silly: A-Rod had more negotiating leverage than any player in the history of baseball and yet he wound up playing someplace other than where he wanted to play. He could've played for the Mets – maybe not for $252 million, but maybe for $200 million. The difference between his playing for the Mets or not playing for the Mets was a whole lot of numbers on bank statements.
And if Matsuzaka indeed said something like that, it would serve as an important and appropriate reminder that the client should always call the shots, even if the agent is of the highest profile and greatest influence in the sport. This is a subject that I examine in my Brooklyn Law Review article "It's Not About the Money."
Posted By : Michael McCann
Nepotism and the Andy Roddick Foundation?
Message posted on : 2006-12-13 - 16:20:00
American tennis star Andy Roddick, who is ranked 6th on the ATP tour, has a charitable foundation called the Andy Roddick Foundation. It focuses on raising money for programs designed to treat abused children (specifically in the Southeastern Florida and Austin Texas), as well as raising money for programs that combat childhood diseases, childhood illiteracy, and truancy. This past weekend, the Foundation raised $1.4 million at an event in Boca Raton Florida which included a poker tournament Friday at the Seminole Hard Rock Casino and a gala dinner and tennis tourney at Boca's Polo Club.
Sounds like the Foundation is successful at raising money, and lots of it.
But its management, which is comprised of volunteers and is directed by Roddick's mother, Blanche, has come under criticism in the Palm Beach Post for alleged incompetency. The basic contention is that Andy Roddick has unwittingly entrusted his charity to his mom and friends, and they don't know what they are doing:
According to former members, the organization is led by a sometimes-clueless, well-meaning volunteer board that usually yields to Roddick's my-way-or-the-highway mother, Blanche."They don't know what they're doing," said Brian Edwards, a Hollywood agent who resigned last year as director of celebrity development. "Blanche is extremely difficult. She and Andy are classless when it comes to dealing with celebrities. Believe me, I'm spreading the word." Edwards said incidents with celebrities over the years culminated in 2005 when two of his clients, whom he declined to name, waited six hours at a California airport for the plane to take them to Boca for the gala. He quit. "I suggested that we send them two gift baskets to apologize," Edwards said. "The total came to $733, but Andy has refused to pay. The bill still had not been paid two months ago. Real stars know. They aren't showing up because Andy and his mom have got delusions of grandeur when it comes to his star power, especially with their attitude."
The list of the personalities advertised for last weekend's event included former Dallas Cowboys star and dancing champ Emmitt Smith, former Detroit Lions star Barry Sanders, dirty celebutante Paris Hilton and New York Yankees slugger Alex Rodriguez. The names of actors Matt Damon and Russell Crowe were whispered in deep background. Who showed up: none of the above.
Those who paid up to $1,000 to play poker with big-deal celebs ended up with Paris' C-list sister, Nicky; the Dolphins' Jason Taylor; popster Mandy Moore; and tennis stars Venus and Serena Williams.
In fairness to the Foundation, the Palm Beach Post story, which perhaps revealingly does not have an author listed, is clearly one-sided against the Foundation and particularly against Blanche Roddick. I'm sure there are two sides to this story, and we only get quotes from people who have an ax to grind. Moreover, back in August, Fort Lauderdale Magazine named the Andy Roddick Foundation the best charity in South
Florida. I don't know much about the award or the quality of competitors for it, but it suggests that the Foundation is doing something right.
But as a general issue, should charitable organizations of celebrities use family members to run them? I know nepotism is always a tricky subject, but perhaps it's something that celebrities want to avoid. After-all, Andy Roddick doesn't look particularly good when his foundation doesn't look good.
Then again, the following passage from Karyn R. Vanderwarren, Note: Financial Accountability in Charitable Organizations: Mandating an Audit Committee Function, 77 Chi.-Kent. L. Rev. 963, 966 (2002) might suggest otherwise, as it indicates that charitable organizations often lack the same degree of business/legal sophistication found in the for-profit world:
Charities often recruit nonprofit board members for their fundraising ability or prestige in the community rather than for their ability to lead the organization . . . [they] may lack corporate or legal expertise. Because charitable board members are generally not compensated and may lack expertise, they have little incentive to actively oversee the activities of the charitable organizations they serve.
So maybe the Andy Roddick Foundation's troubles--to extent they are accurately depicted by the media--have more to do with the nature of charitable organizations than anything else. Also, if the Foundation isn't very good, then couldn't contributors simply donate to other foundations--wouldn't the market for charitable contributions respond accordingly?
Posted By : Michael McCann
Lawyers in Demand at University Athletic Departments?
Message posted on : 2006-12-12 - 10:30:00
Last week at the Street & Smith's Intercollegiate Athletics Forum, when NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in the upcoming year, Brand said "Coaches' contracts," and added that "agents have the upper hand" now and schools may need outside help negotiating these deals. [Jodi Upton, USA Today, Colleges troubled by coaches' rising salaries] Brand told Upton in an interview: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."
I've always thought that university athletic departments would be better served by having a full-time attorney in-house to deal with not only coaches contracts, but also with compliance audits, Title IX issues, NCAA rules interpretations, the NCAA enforcement process, and the development of institutional policies and procedures that have all sorts of legal implications (i.e. drug testing, use of Myspace/Facebook, etc.), to name just a few. As a result of the increase in coaches salaries, coaches contracts, correspondingly, have become much more complex with respect to termination rights, liquidated damages (how much one party owes the other upon a breach), and mitigation of damages (whether the compensation under a future contract should reduce the damages owed by the university to the coach).
I agree with Brand when he says that agents have the upper hand in negotiating coaches contracts. One of the great benefits to having an agent when negotiating an employment contract is that the prospective employee, whether it be a player or coach, can play the "good cop, bad cop" role. In other words, the coach or player can say, "I know, but my agent is making some of these demands and I'm not a business person, which is why I hired him." An attorney working on behalf of the university might be able to level the playing field in that respect.
Also, I've always thought that the coach has more bargaining leverage than the university in the contract negotiation process. First, the coach and the university agree "in principle" that he is going to be the new head coach, and it hits the press that same day. Then, after it hits the press, the university and the agent get together over the next few days and hammer out all of the important details of the contract. During these negotiations, it seems that the coach would have a much easier time walking away from the deal than the university would, which gives the coach more leverage. The university is placed in the inviable position of having to explain to students, alumni and boosters that they lost their "prized" coach because they couldn't agree to the terms of the contract. Maybe an in-house lawyer could aid the university in that process at the outset when the agreement is reached "in principle".
As more universities hire counsel, whether in-house or outside, it creates more opportunities for lawyers who want to work in the sports industry.
Posted By : Rick Karcher
David Stern Drops New Basketball Crusade
Message posted on : 2006-12-11 - 22:15:00
According to ESPN, NBA Commissioner David Stern will announce tomorrow that on January 1, 2007, the league will drop its new "microfiber balls" and bring back the traditional leather ball. The ball has drawn widespread rebuke from players as being uncomfortable and difficult to grasp, and Steve Nash and Jason Kidd even say that it cuts their hands. These complaints over both comfort and safety have reached legal significance, as the NBPA recently filed an unfair labor practice charge with the NLRB to have the ball replaced. That will no longer be necessary as Stern has essentially capitulated.
Skip Oliva over at the Voluntary Trade Blog has an insightful reaction to Stern's decision and the broader implications it may have on Stern and professional sports commissioners in general:
I consider this a “jump the shark� moment for Stern because the seemingly arbitrary decision to change the ball represented the zenith of Stern's bureaucratic (and some would say autocratic) management policies. The new ball's failure may signal at least a temporary end to Stern's increasing centralization of power. I've long complained about the existence of professional sports commissioners, arguing that even the title “commissioner� confers a quasi-governmental authority on what is nominally a business executive's position. One problem is that commissioners have no equity stake in the organization that they are nominally CEO of—Baseball Commissioner Bud Selig being a quasi-exception, given that he owned the Milwaukee Brewers while serving as “acting commissioner�—and absent this equity, commissioners trend towards bureaucratic management. (See Ludwig Von Mises's classic work Bureaucracy for a detailed explanation of bureaucratic management.)
Stern is Exhibit A for bureaucratic management. His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005. Another is the arbitrary 19-year-old age requirement designed to keep high school graduates from playing immediately in the NBA. And then there's the classic example of Stern silencing the NBA's owners—his own bosses—who dare to criticize the league's management or officiating in public. As I noted in an earlier post, if a CEO of a publicly-traded company tried to silence his critics, all hell (and the SEC) would break loose.
See also
A Revolution Against David Stern and Creeping Orwellianism? (11/21/2006)
NBA Player Autonomy: How Should We Define It? (11/28/2006)
Update on David Stern and NBA Player Autonomy (11/29/2006)
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-12-11 - 11:34:00
New this week:Suzanne Wilhelm, “Is someone riding around a golf course from shot to shot really a golfer?� The Supreme Court determines the essence of the game of golf--and what the decision could mean for learning disabled students in higher education, 32 JOURNAL OF COLLEGE AND UNIVERSITY LAW 579 (2006)
Posted By : Geoffrey Rapp
Scott Boras and the Lack of Good Faith in Matsuzaka-Red Sox Negotiations?
Message posted on : 2006-12-10 - 12:51:00
Last month, Rick blogged on the posting system that enabled the Red Sox to obtain the right to exclusively negotiate with Japanese star pitcher Daisuke Matsuzaka. The Red Sox paid the Seibu Lions $51 million for a one-month window to negotiate with the 26-year-old Matsuzaka, who is under contract with the Lions. The window expires this Thursday. If no deal is reached, the Red Sox get their money back, but lose out on perhaps the best Japanese pitcher in recent memory.
And no deal may be the outcome. Matsuzaka is represented by Scott Boras and talks have gone nowhere. The Red Sox are said to be offering $8 million a year, while Boras believes that Matsuzaka's market value--in a market where free agent Jason Marquis, he of the 6.02 ERA and 14-16 record, can land a 3-year, $20 million deal with the budgetless Cubs--is worth at least $15 million and up to $20 million a year. Boras also contends that the Red Sox's $51 million posting payment to the Seibu Lions is not crucial to contract negotiations with his player, since his player isn't receiving any of that money. Boras also notes that the $51 million is not included in the luxury tax figure, and that the Sox would be able to write off some of the $51 million as a marketing cost. It is also thought that Sox would receive a less measurable, but nonetheless meaningful benefit by making in-roads in the Japanese economy and culture.
Today's Boston Herald features an anonymous Red Sox executive (Larry Lucchino?) blasting Scott Boras, even intimating that Boras is not representing the best interests of his client:
Negotiations between the Red Sox and Japanese pitcher Daisuke Matsuzaka have essentially broken down, a source familiar with the talks said late last night, adding that unless there is an abrupt change of course, Matsuzaka will not be signing with the Red Sox before Thursday's midnight deadline.
Attempts to reach Matsuzaka's agent, Scott Boras, were unsuccessful last night. However, the well-placed source blamed Boras for stubbornly being unable to get over the flaws in the Japanese posting system, saying that he has been unwilling to negotiate and that he has acted disinterested in even making a deal.
ESPN's Peter Gammons has more damaging commentary from the Sox, with the implication that the Sox believe Boras is not negotiating in good faith:
While Boras remains adamant in asking for close to a Jason Schmidt average annual value, Red Sox officials feel that the superagent prefers to keep Matsuzaka in Japan for two more years, then get $140 million for seven years after 2008.
So is Boras not making a good-faith effort to get Matsuzaka signed? Keep in mind, as noted by Professor Emily Houh in The Doctrine of Good Faith in Contract Law: A (Nearly) Empty
Vessel?, 2005 Utah Law Review 1 (2005), the absence of "good-faith" in contract negotiations often does not have legal significance:
Section 205 of the Restatement of Contracts explicitly takes the position that it, "like the Uniform Commercial Code ... , does not deal with good faith in the formation of a contract." Thus, the common law obligation of good faith fails to reach the most troubling forms of contractual bad faith: those that occur during contract negotiation and formation.
But even if the absence of good faith is not legally meaningful, what about the practical implications of Matsuzaka returning to the Seibu Lions--the same team that gave him a farewell event in front of 36,000 fans and that presumably doesn't want to return the $51 million? Can he really go back? Hasn't that bridge already been crossed, if not burned?
Lastly, if Boras fails to reach a deal with the Sox, what might that do to his professional reputation as an agent in Japan? I suspect Matsuzaka might be his last Japanese client for some time if that were to occur.
Having said that, Boras recently placed J.D. Drew with the Sox and is also the representative of Jason Varitek, so he has enjoyed successful negotiations with Sox management, thus supplying some comfort to Sox fans with the Thursday deadline approaching (although don't remind those same fans of another of Boras' clients, some guy named Johnny Damon).
See also
* Boras Almost Steals Another One (9/1/2006)
* Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players (5/23/2006)
Posted By : Michael McCann
Luminescent Basketball Uniforms Coming to an Arena Near You?
Message posted on : 2006-12-09 - 12:53:00
Tom Simonite from New Scientist Magazine has an interesting article on new basketball uniforms being developed that will indicate a player's statistics and other game information through luminescent bars:The simple, coloured display panels are attached to each vest and connected to a small computer, about the size of an iPod, strapped to each player's body. These computers communicate wirelessly with a central control system, installed at the side of the court, which keeps track of all relevant statistics as the game goes on.
Luminescent bars running up the side of a vest indicate the points scored by each player, while lines on their shoulders show the number of fouls against them. Panels on each player's chest indicate when the game time or shot clock is running low, and panels on their back show which team is winning . . . this gives players greater confidence in their team's tactics, say the researchers involved.
"Team sports uniforms already communicate information visually," like a player's name, says Mitchell Page, who developed the system at the University of Sydney. "We wanted to augment the existing team sports uniform model to communicate more relevant information, such as a player's stats and performance."
The uniforms--known as TeamAwear--are the creation of Mitchell Page, a University of Sydney student who "came up with the idea while playing computer sports games, which use graphics and icons to tie statistics to the virtual players and track their performance. He wondered how such on-screen graphics in sports telecasts could be made available to players and spectators at the ground."
We know the NBA is always looking for new sources of revenue, so maybe the league will find something here. And players would seemingly benefit by more easily knowing game information, such as how much time is left on the shot clock and the number of timeouts remaining. Other players, particularly those interested in their own statistics (such as one on the verge of getting a triple-double) might also find this information helpful. But I have a feeling Billy Hunter and the Players' Association would have some reservations, including those relating to workplace safety. After-all, what about the risk of electrocution or burns? But Mitchell counters these concerns on his blog when writing, "the risk of harm from electrocution is for all intents and purposes, zero" and players who have tested the uniforms "have reported no electrical shock whatsoever."
In any event, while reading this story, I couldn't help but recall that old NBA Jam videogame, where players would "heat up" both figuratively and literally:
Posted By : Michael McCann
Revenge of the Groupies, 46 years later
Message posted on : 2006-12-08 - 14:23:00
The type of story you don't see everyday:
An 81-year-old Texas woman named Ruby Y. Young was arrested last week on federal charges relating to letters she had sent to Hall-of-Fame Packers Quarterback Bart Starr (HT: Deadspin). According to a criminal affidavit, Young sent Starr, now 72, several letters demanding that he pay her $ 2 million or she would go to the media with reports of an "encounter" that they had in 1960.
From Deadspin, one letter reads, in part:
"And now, the time has come for you to pay -- to pay for the many injuries you caused me. ... No I am not a push-over Mr. Starr -- and no, I do not need the money -- but I intend to see that you pay for your wrong doings (sic) to me ...," said the first letter, dated Oct. 30, 2006, which an agent quoted in part in the affidavit. "How much is it worth to preserve this 'image' presented to the public these many years of who and what you are?"
"I am going to be vindicated one way or another," Young's first letter said, according to the affidavit. "You know very well that any and all tabloids, TV news casters (sic) such as ABC, CBS, NBC, would simply devour this story. ... And thereby, I would collect money from these sources. But, I first want to give you the chance to pay me back in dollars rather than exposure."
Among criminal law and free-speech theorists, the rational for the legal prohibition on extortion is something of a mystery. Think about it. Ms. Young had 4 options. She could have:
1) Gone to the press with the details of whatever Starr did to her. Nothing criminal about that. And nothing legally wrong with that if her story is true. If the story is false and she knew it was false when she said it, she might be liable for civil damages for defamation (I think Starr remains a public figure), assuming Starr decided to sue rather than letting the issue go away.
2) Sued Starr for $ 2 million based on whatever improper acts caused her injury. She might lose the suit, either because the claims lack merit and/or because the claims are 46 years old and the statute of limitations has expired (not many civil claims have 50-year limitations periods). And, if the suit is frivolous (i.e., laughably weak and totally lacking any and all merit), she might be subject to sanctions by the court, including having to pay Starr's attorney fees. On the other hand, bringing the lawsuit might have compelled Starr to settle to make the issue go away.
3) Threatened to do # 2 as a way to force a monetary settlement in advance. If done through an attorney and in a non-threatening way, such pre-suit notice and negotiation is actually favored.
4) Sent letters threatening to do # 1 unless Starr gave her what she could seek by doing # 2 (which is what she did).
All four have the same purpose and effect of giving Starr a choice between paying money or having the details of the ancient encounter publicized. But only # 4 is subject to criminal prosecution. And, as the prosecutor in the case noted, that is true regardless of the truth or falsity of Young's story.
The best theoretical arguments talk about the loss of autonomy, of free choice, that extortion inflicts on its victims. But it is an interesting dichotomy for theorists.
Posted By : Howard Wasserman
Tom Brady [insert football pun here in place of the word "sues"] Yahoo
Message posted on : 2006-12-07 - 15:57:00
First he slammed BCS-championship-game-bound Florida. Now, Tom Brady is suing Yahoo over use of his image without permission, as reported by the Smoking Gun. The core of Brady's lawsuit, according to his complaint:In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.
Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?
Posted By : Geoffrey Rapp
How Would Reinstituting the Military Draft Affect Sports?
Message posted on : 2006-12-07 - 11:19:00
The incoming Chair of the House Ways and Means Committee, U.S. Rep. Charles (Charlie) Rangel (D-NY), has proposed that the United States renew the military draft, which has been suspended since 1973. Rangel sponsors a bill that would require military or civilian service for all American citizens ages 18 to 26. Many nations have similar laws, including Israel, South Korea, and Norway. If Rangel's bill became law, it could have sweeping effects on both college and professional sports.
But why would Rangel--a purple heart, bronze star veteran of the Korean War--support such a bill? Basically, he argues that spreading military obligations more equitably would encourage political leaders and opinion leaders to more carefully deliberate the deployment of troops into combat. After-all, of the 535 members of Congress, only 7 have children in the military who are participating or could be called to participate in the war. I'm not sure if there is similar data on the opinion-leader/think-tank types who championed the Iraq War, but I suspect a similarly small percentage did so with the prospect of personal loss. A more general analysis of the relationship between military recruitment and socio-economic status can be read here, which details how young men from poorer backgrounds are actively recruited, while those from more affluent communities receive much less attention. Rangel also has an op-ed in the New York Daily News which notes that persons of color bear a disproportionate share of protecting the country.
Rangel's proposal also goes to the absence members of Congress with military backgrounds. In fact, according to University of Maine law professor Donald Zillman, only about 30% of Congresspersons have military backgrounds, and only one in 10 of the newly-elected members of Congress served in the military. Back in 1978, about 80% of the members of the House of Representatives had military experience, and in 1985, about 75% of the members of the Senate had that experience. Times have indeed changed, and not many of the people who are entrusted with the decision to authorize wars do so with actual knowledge of what wars are like.
Of course, whatever conceptual appeal Rangel's plan may have, his bill is very unlikely to secure passage. Many influential members of his own party, including incoming chair of the Senate Armed Forces Committee, Senator Carl Levin, oppose it, and fewer than 20% of Americans are supportive. Perhaps most
significantly, Rangel's plan will not be on the Democrats' agenda when they re-take control of Congress in January.
But let's say that Rangel's plan gradually gains support in 2007, eventually makes its way for a vote, passes, and President Bush signs it (or vetoes it, but his veto is overridden). Beyond many more important questions, what would happen to sports?
The specifics of the draft or compulsory service obligation would obviously prove crucial, as would the nature, extent, and duration of future American forces in Iraq (and/or other countries). But as a barometer, consider how compulsory military service in World War II substantially affected sports. In fact, 638 NFL players served during the war, as did more than 500 MLB players.
To see one specific effect, take a look at Matthew Algeo's fascinating new book Last Team Standing: How the Steelers and the Eagles - 'The Steagles' - Saved Pro Football During World War II. In it, he writes about how the Philadelphia Eagles and Pittsburgh Steelers, both having lost many players to military obligation, actually merged for the 1943 season and were called "The Steagles." They finished with a 5-4-1 record.
Much has also been written about star MLB players being drafted. Ted Williams, Joe DiMaggio, Hank Goldberg, and Bob Feller were among them. To the right we see a picture of Ted Williams--he of the 20:10 vision--being sworn into the Navy, for whom he would star as a fighter pilot (in both WWII and the Korean War). For some great background on "Wartime Baseball" be sure to check out Gary Bedingield's Baseball in Wartime website and also the Baseball during WWII website.
Another consequence of players being overseas was the rise of women's professional baseball. Between 1943 and 1954, we had the All-American Girls' Baseball League, which according to historian James A. Percoco, is the only professional baseball league for women in American history. A similarly positive effect was a greater desire for desegregation in sports, particularly after soldiers from all racial/ethnic backgrounds fought together to defeat the Nazis.
The Vietnam War also entailed the drafting of professional athletes. For instance, Juanita Secor writes about Rocky Bleier, "who won four Superbowl rings with the Pittsburgh Steelers and drafted during the Vietnam War in the Army as an infantrymen. After his time in the war, he suffered severe leg injuries but he never lost sight of his passion for the game. He ended playing for 12 years more and was the go to guy for his team."
So what might happen to sports today with a draft? Would the legacy of Pat Tillman voluntarily giving up his NFL career and ultimately his life prove influential? Would the legacy of Muhammad Ali refusing the Vietnam War draft as a conscientious objector also prove influential? You can argue that both were courageous in their own ways, and I suspect their stories would be spotlighted should a draft be reinstituted.
Posted By : Michael McCann
Welcome Back: Mutombo, Richards, and Racist Cheering Speech
Message posted on : 2006-12-06 - 23:15:00
Good evening and thanks to Mike & Co. for inviting me back for another guest stint. Actually, the stint began a couple days ago, but this is the first chance I have had to post something.
There is nothing going on right this minute that is sports-related that peaks my legal interest. So let me backtrack to two pieces of old news: Michael Richards (no link or explanation necessary) and Dikembe Mutomo's heckler (earlier this year, a heckler in the crowd called Mutombo a monkey, causing Mutombo to almost go into the stands after the man and causing the NBA to ban the fan for the remainder of this season).
What do they have to do with one another? They together relate to the problem of racist taunts and chants at sporting events. In writing about fan speech, I suggested that pretty much all heckling and taunting is fair game, as long as it does not cross-over into the narrow category of "fighting words," meaning direct, targeted, close-up, face-to-face insults. For an example of racial speech, I proferred a protest during Jackie Robinson Day at Shea Stadium, in which White Supremacists chanted about "the good old days" of segregated baseball--an example of pure political speech (however offensive). For examples of heckling, I suggested that fans could call players on anything and everything, related to on-field performance, clubhouse problems, and off-field daliances.
But I did not consider the most-blatant example of racial heckling: a fan in the close rows of a small arena shouting a racist epithet at a particular player. And the Richards and Mutombo situations together suggest that as we move from racial/racist political messages into more directed racist taunts, epithets, and name-calling, the analysis gets skewed.
First, consider that most people thought it was OK for Mutombo to almost go into the stands after the heckler, something that probably would not have been tolerated if the fan had called him a non-racist name (compare the reaction to the Texas Rangers' Frank Francisco throwing a chair at hecklers in 2004). Because the insult was racial, the violent reaction was more acceptable.
Second (and this is a lesson I take from the Michael Richards debacle): Racist taunts are perceived not to target and insult only the individual at whom the insult is directed. Rather, racist insults have been "collectivized." That epithet targets and offends everyone of that racial group. And, to some extent, it offends every fair-minded member of society (regardless of race) who hears it uttered. This means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be "fighting words" towards the player under the generally understood definition) might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs
I plan to explore the entire scope of expression in sports in a future (hopefully book-length) project. I think the questio of racist speech, in the sense of epithets, may be its own chapter or article.
Posted By : Howard Wasserman
Rick Karcher Goes to Washington
Message posted on : 2006-12-06 - 15:02:00
Rick is travelling to D.C. today to speak before Congress relating to his excellent Sports Law Blog commentary on NFL agent Carl Poston and the proper role of unions in disciplining agents (see Rick's posts from 11/22/2006; 11/16/2006; 9/25/2006; 1/31/2006; also see his law review article Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players). Here is an excerpt from a USA Today story on today's hearings:
WASHINGTON (AP) — New York Giants linebacker LaVar Arrington is tentatively scheduled to testify before Congress this week at a hearing involving his former agent.
Arrington, a three-time Pro Bowl player; NFL Players Association general counsel Richard Berthelsen; and a law professor [Rick Karcher] were on a "tentative witness list" e-mailed to The Associated Press on Tuesday by House Judiciary Committee press secretary Terry Shawn.
Arrington did not immediately return a phone message left for him by the AP on Tuesday night.
The Subcommittee on Commercial and Administrative Law has scheduled an oversight hearing for Thursday to examine the NFL Players Association's arbitration process. Lawmakers will be looking into the NFLPA's suspension of Arrington's former agent, Carl Poston, stemming from his handling of a contract the linebacker signed with the Washington Redskins near the end of the 2003 season.
Later today, Rick's statement should be available here. Good luck Rick!
Posted By : Michael McCann
Law Schools with Sports Law Profs, 2006-2007
Message posted on : 2006-12-05 - 15:18:00
Last spring, I posted a list of law schools with self-identified "Sports Law Professors." Subject to the disclaimers made in that post, here is an updated list (schools new to the list, or with additional faculty members, are indicated in bold):Akron; Alabama; Arkansas (2 profs); Baltimore; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Chapman; Cincinnati; Cooley; Connecticut; University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola – LA; Marquette (3 profs); Miami (2 profs); Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); Missouri-Kansas City; New England; New Mexico; New York University; North Dakota; Nova Southastern; Nebraska; Northeastern; Northern Kentucky (2 profs); Notre Dame; Ohio Northern; Ohio State; Oklahoma; Pepperdine; Penn State-Dickinson; Puerto Rico; Richmond; St. John's; Saint Louis; Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn (2 profs); Western New England; West Virginia; Whittier; Widener (2 profs); William & Mary; Willamette (2 profs); Yale
While it's nice to see some new additions to this list, a number of schools appear to have lost their sports law faculty members: Barry, DePaul, Illinois, Maryland, North Carolina, and St. Thomas (MN).
Posted By : Geoffrey Rapp
Graduation Gap Bowl
Message posted on : 2006-12-04 - 16:56:00
Derrick Jackson of the Boston Globe has compiled his annual Graduation Gap Bowl. It compares the Associated Press Top 25 college football teams with how those teams would rank by the graduation rates of their players:
AP Top 25 College Football
| Team (1st-place votes) | Record |
|---|
| 1. Ohio State (65) | 12-0 | | 2. Florida | 12-1 | | 3. Michigan | 11-1 | | 4. LSU | 10-2 | | 5. Louisville | 11-1 | | 6. Wisconsin | 11-1 | | 7. Oklahoma | 11-2 | | 8. USC | 10-2 | | 9. Boise State | 12-0 | | 10. Auburn | 10-2 | | 11. Notre Dame | 10-2 | | 12. Arkansas | 10-3 | | 13. West Virginia | 10-2 | | 14. Virginia Tech | 10-2 | | 15. Wake Forest | 11-2 | | 16. Rutgers | 10-2 | | 17. Tennessee | 9-3 | | 18. Texas | 9-3 | | 19. BYU | 10-2 | | 20. California | 9-3 | | 21. Texas A&M | 9-3 | | 22. Nebraska | 9-4 | | 23. Boston College | 9-3 | | 24. Oregon State | 9-4 | | 25. TCU | 10-2 | Others receiving votes: Georgia 57, Georgia Tech 53, Hawaii 25, Houston 21, Penn State 9, Maryland 6, South Florida 6, Navy 4, South Carolina 3, UCLA 2. |  | | | Top 25 Graduation Rates | Team | Players' graduation % |
|---|
| 1. Navy | 98 | | 2. Boston College | 96 | | 3. Notre Dame | 95 | | 4. Wake Forest | 93 | | 5. Nebraska | 88 | | 6. Florida | 80 | | 7. Penn State | 80 | | 8. Texas Christian | 78 | | 9. Virginia Tech | 74 | | 10. Michigan | 71 | | 11. South Florida | 66 | | 12. Boise State | 65 | | 13. Maryland | 64 | | 14. South Carolina | 64 | | 15. Auburn | 63 | | 16. Texas A&M | 63 | | 17. West Virginia | 63 | | 18. Wisconsin | 62 | | 19. Oregon State | 60 | | 20. UCLA | 59 | | 21. Rutgers | 58 | | 22. Tennessee | 58 | | 23. Arkansas | 55 | | 24. Georgia Tech | 55 | | 25. OSU and USC | 55 | Barely passing graduation rates in the AP rankings: Brigham Young 53, Louisville 53, Oklahoma 52, Houston 51. Teams that should be dropped from bowls on overall graduation success rates: Hawaii 49, LSU 49, California 44, Georgia 41, Texas 40.
|
Say what you want about Notre Dame football and its fans, but the team's graduation rate is impressive. As to my friends from the University of Texas, ahh . . .
Posted By : Michael McCann
The Economics of the (Curious) MLB Posting System
Message posted on : 2006-12-04 - 13:28:00
Some of the problems associated with baseball's system have been discussed by Rick here, and our friend The Sports Law Professor, here. Now, some of these concerns are confirmed by economist Duane Rockerbie in a new essay posted on SSRN: Peculiarities of the Major Leage Baseball Posting System, which can be downloaded free of charge. The piece contains very little jargon (and no math) and adds texture to the problems associated with the posting system. For example, the author discusses the danger of "foreclosure," under which "one bidder prevents all other bidders from obtaining the rights to negotiate with the Japanese player, even though the winning bidder has no intention of signing the player to a contract." Because Japanese clubs must decide whether or not to accept a bid before learning the identity of the bidder, they are unable to avoid accepting a bid by a club suspected of opportunistic and disingenuous foreclosure bidding. The author describes a possible alternative, the European transfer method for soccer players, but suggests that it would not be an appropriate model for Japanese players moving to MLB because of the relatively few Japanese-MLB transitions each year.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-12-04 - 10:22:00
New this week:Herb Smith II, Comment, More a warning than a victory (Clarett v. Nat'l Football League), 7 FORIDA COASTAL LAW REVIEW 745 (2006)
Posted By : Geoffrey Rapp
Patriots Sue StubHub
Message posted on : 2006-12-02 - 13:58:00
Just before Thanksgiving, the New England Patriots sued online ticket reseller StubHub.com, a former season ticket holder and former wait list member and other season ticket holders for reselling their tickets online.
The Complaint alleges that StubHub and the sellers interfere with the Patriots' advantageous relations with its fan base, misappropriate the Patriots' name and violate Massachusetts law. The complaint recites in great detail the various aspects of the team's goodwill. Through its season ticket program, the Patriots reward loyal fans by providing access to games at below market rates. Through the team-facilitated TeamExchange ticket exchange, the team provides season ticket holders and wait list members the ability to purchase tickets at face value plus a transaction cost, from season ticket holders who cannot attend certain games. This also benefits the selling season ticket holders by providing them a way to legally recoup the cost of tickets for games they can't attend.
The team argues that StubHub's online resale activities tarnish its goodwill. By controlling access to the stadium, the team provides a secure, fan-friendly experience. The team voids the season tickets of those who behave in an unacceptable manner. It appears from the complaint that many of those with voided season tickets have resold their voided tickets on StubHub. StubHub buyers then show up at the stadium and are denied access. When irate unknowing buyers are denied entry at the stadium, the team's goodwill is compromised and its resources are expended by having to deal with the defrauded buyers.
Lastly and most obviously, StubHub and the resellers who use its service violate Massachusetts law, which prohibits the resale of tickets by anyone who is not licensed and limits resale price to two dollars above face value plus a transaction cost. The exorbitant pure market prices on StubHub far exceed legal limits. It also represents a source of revenue based directly on the Patriots product, yet the Patriots have no share in it.
The suit seeks money damages and injunctive relief. It will be interesting to see how StubHub and the individual defendants respond. While the Patriots' arguments are strong, there are more violators to be dealt with than StubHub. This may be the first move by the typically aggressive franchise.
The complaint itself is accessible for those with access to the Massachusetts Superior Court's website www.ma-trialcourts.org. It is docket number 06-4874 BLS. For those interested, I can email a pdf of the complaint.
My prediction about further action proved true. Sunday's Boston Globe business section features a story about the Patriots rescinding 38 season tickets held by former player Fred Smerlas, who along with radio personality Glen Ordway run www.Patriotstailgate.com, a business featuring access to pre-game tailgates and game tickets. Although Smerlas claims that the tickets are sold at face value within the packages he sells, the team has revoked his tickets for violation of "team policy."
Posted By : Chris Callanan
Update on David Stern and NBA Player Autonomy
Message posted on : 2006-11-29 - 16:04:00
An update on our coverage of David Stern and the NBA's recent efforts to regulate NBA player behavior (a subject which I examine here and here, and be sure to check out the excellent reader comments associated with those posts):
1) I was interviewed by True Hoop's Henry Abbot on his podcast show and we talked about David Stern and the NBA. The interview lasts about a half hour and can be heard at this link. For a written description of the interview, check out this link. It was a lot of fun to be on the show and thanks to Henry for having me on.
2) T.J. from Michael Redd Boat Ashore has an excellent reply to my reply from yesterday on NBA player autonomy. T.J. is a very thoughtful and insightful writer and his analysis makes for a great back-and-forth exchange. I'll definitely be reading his blog regularly, he has some great commentary.
3) Skip Oliva, President of the Voluntary Trade Council, e-mails me this comment:
Stern's actions should raise serious "corporate governance" concerns. In what other business is a CEO permitted to silence shareholders who criticize management? If a publicly-traded company imposed such a gag rule, it would obviously be ignored, and I doubt the SEC would be happy.
4) Gregory Bowman, a colleague on my faculty and author of Law Career Blog, e-mails me this comment:
One interesting issue, from a league structural perspective, really is "Why do we care?" Sports says a lot about our society, so we enjoy sports. But why should we care about who has the power, and the money, and the ability to shape the future of the sport? When we just look at sports as its own little microcosmic view of society, do we really care who has the power? If so, why, and what should the power structure be? Or perhaps more appropriately, what should the rules be for how power shifts amongst owners/the league, the players, and the municipalities that benefit from (and sometimes support) these teams?
Posted By : Michael McCann
David Dunn Accepts 18-Month Suspension
Message posted on : 2006-11-29 - 11:42:00
Two weeks ago, I raised some questions regarding the proper role of unions in disciplining agents and mentioned that agent David Dunn was appealing the NFLPA's 2-year suspension of his license. This week in Street & Smith's Sports Business Journal, Liz Mullen reports that Dunn and the NFLPA avoided arbitration and agreed to an 18-month suspension ["Dunn and NFLPA agree suspension will last 18 months" (subscription required)]. According to NFLPA general counsel Richard Berthelsen, “This suspension will take Dunn through two drafts and two free agency periods, so it is essentially equivalent to a two-year suspension.�
The NFLPA's agent regulations mandate that all disputes be resolved through arbitration. The settlement evidences that Dunn didn't think he had any chance whatsover in defending his case in front of the NFLPA's arbitrator, Roger Kaplan. As Berthelsen correctly notes, the end result here is essentially a 2-year suspension, which is no different than the suspension originally imposed by the NFLPA. So does that really constitute a settlement?
Dunn represents over 60 NFL players. The ramifications of this suspension, which include the strong likelihood that he will lose clients to other agents as well as the lost revenue on contracts he would have negotiated during this 18-month period, would seem to give Dunn every incentive to vigorously fight it. He could have at least tried to convince the arbitrator to reduce the suspension to one year. So why didn't he?
The NFLPA's agent regulations regarding the selection of an arbitrator state: "The NFLPA shall select a skilled and experienced person to serve as the outside impartial Arbitrator for all cases arising hereunder." There is also a provision stating that the fees and expenses of the arbitrator shall be borne by the NFLPA. These provisions raise some interesting questions. Is an arbitrator that is selected, and paid for, by one of the parties to a dispute really "impartial"? Maybe Dunn's decision to accept the suspension was influenced, in part, because he doesn't feel Kaplan can be impartial. And when the same arbitrator is selected on a continuous basis, is he really an "outside" arbitrator or does he gradually evolve into an "insider" through repeated use?
The counter argument is that, by deciding to represent players, agents consent to all of the union's agent regulations. But are agents really consenting when they have no choice or ability to negotiate any of the provisions? Could it be argued that union agent regulations are adhesion contracts?
Posted By : Rick Karcher
Loyola L.A. to Host Symposium on Collective Bargaining & Individual Contract Negotiation in Pro Sports
Message posted on : 2006-11-28 - 13:55:00
Loyola-LA's Sports Law Institute will host what looks to be an interesting symposium on January 26, 2007. The best part is that law students from any law school will be admitted free. Panels include "Q & A on entry into sports law," "Individual Contract Negotiation," and "Collective Bargaining." The symposium looks to have a good slate of speakers. Check out the full brochure here.
Posted By : Geoffrey Rapp
NBA Player Autonomy: How Should We Define It?
Message posted on : 2006-11-28 - 13:18:00
On Tuesday, I posted on recent efforts by the NBA and Commissioner David Stern to regulate NBA players, and to do so without the consent of the players' association. I also discussed how some owners appear to be finding Stern's style a bit too autocratic, and how these topics tied into some of my scholarly research. The post generated great discussion in the comments and also the websites that are linked from it.
In response to the post, T.J. from the blog Michael Redd Your Boat Ashore has posted a highly substantive, 1,500+ word review of my law review article
But even if the draft (and also the rookie salary scale) aren't infringements on player autonomy, would the Bulls' rule infringe upon Carmelo's autonomy? One could say that Carmelo can still get around the rule and continue with his NBA career, because if he really cares that much about the headband, he can holdout and not get paid and hope the Bulls eventually either carve out an exception to the rule or trade him to a team that doesn't have the rule. And there are NBA teams that do not have this rule and that would love to have Carmelo, and in this alternative history, the Bulls drafted Carmelo knowing that he likes to wear a headband. So I suppose one could say that Carmelo's autonomy here remains, at least in some form. Contrastingly, with the league-imposed dress code,
there aren't any teams that can opt out of it for players who don't like it; it is a league-imposed rule.
But let me argue against myself on that point. Couldn't a group of NBA players, from various teams, simply not show up to work and hope the NBA relents on the dress code, much like Carmelo could not show up and hope the Bulls change their policy (or trade him)? Yes, but the reality is that neither Carmelo nor the players would likely do so because each manifestation of one's autonomy has some finite value, particularly in relation to other forms of one's autonomy and also one's practical considerations, such as earning a paycheck. But that doesn't make the infringement right or socially-desirable. It just means that it only hurts a player "less" than would be required to keep his autonomy.
This post is probably too long, but just to quickly respond to T.J. on couple of other comments:
1) My statistical research was assessed and confirmed by two editors of ESPN the Magazine and two producers at HBO when I was on the Bob Costas show in 2005, as well as the editorial staffs of four law reviews (Case Western Reserve Law Review, Brooklyn Law Review, the University of Pennsylvania Journal of Labor and Employment Law, and the Virginia Sports and Entertainment Law Journal). There is no "statistical sleight of hand," as you put it.
2) I whole-heartedly disagree with your remark "I find it off-putting to employ the discourse of labor rights in a conversation about multi-million dollar athletes. I prefer to save the efficacy of that language for underpaid blue-collar laborers, undocumented immigrants, and sex workers-just to name a few." You are basically saying that the fact that these guys make a lot of money means their autonomy is not really a concern for you. Aren't they still people or do they somehow become less human because they make a lot of money? Or is it their wealth as much as who they are that bothers you: would you feel the same way about Bill Gates as you do about Allen Iverson?
Posted By : Michael McCann
Mimicking Japan and Cuba? Hugo Chávez to Restrict Access to Venezuelan Baseball Players
Message posted on : 2006-11-27 - 18:10:00
Graham Dunbar of The London Times has an interesting article on Venezuelan President Hugo Chávez's plans to restrict Venezuelan baseball players who seek to play in the United States ("Game Over? Politics May Pitch Baseball into a Crisis," Nov. 25, 2006). Currently, Venezuelan players, like Dominican and other Latin (but not Cuban) and South American players, can be directly recruited by Major League Baseball teams, and can be signed by as young as 16. Indeed, amateur baseball players from countries that are not subject to the MLB Draft, an agreement between MLB and the host league (Japanese Professional Baseball), or law (Cuba), may be signed by any Major League organization at age 16, provided they turn 17 prior to either the end of the baseball season in which they are signed or September first of the year in which they are signed. In contrast, if an amateur baseball player is from the United States, including its territories, or Canada, he can only sign with a Major League organization if he first enters the MLB draft, and he must have graduated from high school.
With this less regulated set-up for signing most international players, including Venezuelans, nine MLB teams have invested millions of dollars in setting up baseball academies in Venezuela, and most have set up at least one academy abroad. As a result, "changing the rules" on how big league teams sign Venezuelan players could jeopardize those teams' investments in academies and recruiting. It could also curtail the influx of Venezuelan players into the United States. It probably goes without saying, but there a number of terrific Venezuelan players in the big leagues, including Johan Santana, Bobby Abreu, and Magglio Ordóñez, and many top prospects are on the way.
Here are some key excerpts from Dunbar's piece:
Baseball fans in both countries fear that President Chávez may deprive the American game of one of its prime assets — the flow of rich talent from Venezuela.One of the greatest concerns among the middle class, who increasingly steer their sons towards baseball academies rather than academic college, is that Mr Chávez will close the domestic professional league and restrict the rights of sportsmen to play in America. Ron Rizzi, a scout for the Los Angeles Dodgers, has served the game for 39 years and has been coming to Venezuela to watch players for the past decade. He said: “Chávez is so anti-US that he may inhibit players' ability to get there. If he wins the election they might have to come out on a boat.�
It's not entirely clear what Chávez--who is up for re-election next month--actually plans to do, but he's no doubt hoping to extract more money from MLB teams that pursue Venezuelan players.
I have no idea if there is any connection between Chávez's plans and the $51 million the Red Sox are paying Daisuke Matsuzaka's Japanese team, the Seibu Lions, for the right to negotiate with him, but the timing seems noteworthy.
After-all, the arrangement between MLB and Japanese baseball is far from a free market, and requires a complex posting procedure that involves MLB teams bidding for the right to bid for Japanese players. So maybe Chávez wants to build a competitive Venezuelan professional league that would justify a posting system, and perhaps Chávez figures that if MLB is willing to capitulate to Japanese baseball, then it would do the same with him. And if he's right, then other Latin countries could follow in his lead, which in turn would seem to boost Chávez's political stock in Latin and South American countries as a regional leader.
Or maybe Chávez, who is said to idolize Fidel Castro, simply wants Venezuelan baseball to mimic Cuban baseball, where it's nearly impossible for players to leave in the absence of defection, which itself is often dangerous, both for the players and their families. That doesn't seem like a terribly good ambition.
Or maybe, and in Chávez's defense, he's genuinely trying to improve the conditions under which Venezuelan players are signed by big league teams. After-all, a number of thoughtful observers have criticized MLB baseball academies as symbolic of American imperialism and exploitative of economically-disadvantaged countries. For instance, check out the following:
Related Coverage on Sports Law Blog:
The Citgo Sign Behind Fenway Park and Fearing Hugo Chávez
Bidding for Matsuzaka Poses Interesting Legal Issues
Posted By : Michael McCann
The Forbidden Fruit (or Cheeseburger): Deliberate Food Posioning of NFL Players?
Message posted on : 2006-11-24 - 15:03:00
Oakland Raiders' defensive tackle Warren Sapp probably eats a lot of food and probably eats it often. After-all, he weighs at least 300 pounds, and a good portion of his game is based on his ability to use his girth to flatten running backs.
But while on road trips, Sapp won't eat at restaurants. And that's because he believes that his meals were purposefully poisoned on at least three occasions from 1995 to 2003, during which time he played for the Tampa Bay Buccaneers. He claims that deliberate food poisoning was especially a problem when traveling to Philadelphia, so much so that he "even went so far as to book two hotel rooms -- one under an alias -- so he could order room service and not worry about his food." Sapp doesn't charge that the visiting teams had anything to do with the poisoning, only their diehard fans who happen to serve food.
Could Sapp be right? Keep in mind that Sapp may not have become sick on those occasions due to food poisoning; he might have instead caught a bug, which he attributed to something more sinister and purposeful, if less likely, such as a crazy Eagles fan--which actually is likely--poisoning his food (much less likely). It is sort of self-affirming to think that a fan is so afraid of what you could do to his favorite team on game day that the fan would actually try to stop you from playing. That's not to say that Sapp didn't suffer from food poisoning, but I could see why he might want to believe that his symptoms resulted from food poisoning rather than a cold or flu.
Also, Sapp says that he was poisoned on three occasions over an eight-year stretch. If he's correct, that does seem unusually often, unless, perhaps, he frequented Jack in the Box a bit too regularly. But even then, the food poisoning wouldn't have been intentional, only the result of gross negligence on the part of one of our nation's beloved fast food companies.
See Also
Hold the Spit, Please: Food and Beverage Security at Sporting Events
Hold the Blood, Please: More Concerns for Food Security
Posted By : Michael McCann
ERISA and Disabled NFL Players
Message posted on : 2006-11-23 - 14:24:00
Posted By : Michael McCann
Oakland Raiders Lose in Case Against Stadium
Message posted on : 2006-11-22 - 18:47:00
The Oakland Raiders, source of so many wonderful sagas of sports litigation (see here for another one), produced a new installment last week. The latest case concerns allegations that the team was duped into leaving Los Angeles based on mispresentations about season ticket sales made by the Oakland-Alameda County Coliseum (OACC). The Raiders initially won a multimillion dollar jury verdict, although the award was far less than the amount sought. And, as reported here, in a split opinion Friday, California's 3rd District Court of Appeal set aside a $34.2 million judgment that favored the football team, ruling that Davis and the Raiders gave up their right to sue for fraud when they reworked a 1995 lease agreement with the Oakland-Alameda County Coliseum.
The court expalins in its opinion, Oakland Raiders v. Oakland-Alameda County Coliseum, Inc., 2006 WL 3334402 (Cal. App. Nov. 17 2006):California law has, for more than a century, recognized that a plaintiff claiming to have been induced into signing a contract by fraud or deceit is deemed to have waived a claim of damages arising therefrom if, after discovery of the alleged fraud, he enters into a new contract with the defendant regarding the same subject matter that supersedes the former agreement and confers upon him significant benefits.
The court continued:In this case, the Raiders admittedly discovered the falsity of the OACC's "sellout" representations regarding . . . ticket sales not later than the end of the 1995 football season. In 1996, without any mention of fraud, they negotiated and executed a new agreement concerning the same subject matter, which modified the rights of the parties, granted the Raiders significant benefits, and otherwise reaffirmed the validity and enforceability of the August 7 agreements. . . . [T]hese facts establish an implied waiver of the Raiders' claim for fraudulent inducement.
The Raiders also lost out on a bid for attorney fees, which will likely cost the franchise another $10 to $20 million.
Posted By : Geoffrey Rapp
Another Agent Suing NFLPA Over Due Process
Message posted on : 2006-11-22 - 07:20:00
In September, I discussed Carl Poston's lawsuit against the NFLPA claiming that the union violated its agent regulations when it imposed a 2-year suspension as a result of his dealings with the Redskins on behalf of his client LaVar Arrington, including a breach of the union's contractual obligation to provide a "neutral" arbitrator in which to appeal the suspension (because the arbitrator is selected, and paid for, by the union). Poston also claims that it's a conflict of interest for (1) union counsel Jeffrey Kessler to use certain information obtained in LaVar's grievance against the Redskins without LaVar's consent and (2) Kessler to pursue a disciplinary complaint against Poston (which Arrington opposes) because it's against the interest of Kessler's client (Arrington) to do so.
Two days ago, veteran agent Steve Weinberg filed a lawsuit claiming that the union stripped him of his past, present and future income and all of his NFL clients when the union decertified him back in 2003 for violations of the union's agent regulations. Weinberg is seeking $36,750,000 in damages -- $12,000,000 in compensatory damages and $24,750,000 in punitive damages. The press release, drafted by Weinberg's lawyer, states:
Weinberg believes that this lawsuit will show that he received disparate treatment from other contract advisors, partly for speaking out against the NFLPA's failure to abide by and enforce its own regulations. Weinberg also believes that discovery in this case will uncover certain valuable information that the NFLPA has previously kept from its members.
The NFLPA's ability to immediately strip an agent of his certification -- overnight and without due process -- has a chilling effect on all agents and stifles their advocacy for their players. The NFLPA took away Steve's livelihood and he wants it back. He's fighting for his constitutional rights. One day he had a livelihood and 42 NFL clients. The next day he had neither.
After the NFLPA immediately revoked his certification in February 2003, all 42 of Weinberg's NFL clients, including 25 free agent players, most of whom he was preparing to represent in upcoming free agent contract negotiations with NFL teams, suddenly were forced to seek out new player representatives. The suit contends that these NFL players were financially harmed by the NFLPA's actions against Weinberg, even though the mission and sole purpose of the NFLPA is to protect the players.
The NFLPA's agent regulations are the strictest of any of the unions' regulations, and the NFLPA (unlike the other players associations) obviously takes the position that enforcement of its regulations is the best way to combat agent misconduct. But stricter regulations and vigorous enforcement doesn't appear to be deterring agent misconduct. So here's my question: Is the huge expense of enforcement, as well as the time and expense involved in fighting lawsuits against agents, an efficient use of the union's resources?
After Weinberg was decertified, NFLPA general counsel Richard Berthelsen made an interesting remark: "Players aren't lawyers. They're players .... at the very least, the agent has an obligation to keep his players from being interfered with as they prepare for an important game." Berthelsen is absolutely right. In my recent Willamette Law Review article I take it one step further and discuss how even "permitted" player solicitation and recruitment by agents substantially interferes with players. I also discuss how the agent commission fee arrangement, combined with the rise in player salaries over the years, is providing a huge incentive for agents to vigorously compete for players, which naturally leads to agent misconduct in a variety of forms.
Last week, I raised some questions about the proper role of unions in disciplining agents. I question whether enforcement is the answer. It requires the union to make subjective assessments about particular agents over others as well as difficult factual determinations. And as the "exclusive" representative of the players under the NLRA, should the union be fighting claims brought by agents that it arbitrarily and unfairly applied its agent regulations?
Why not give players the option (not a requirement) of having a union representative negotiate the contract? With its access to information and highly qualified lawyers, the unions are arguably better equipped to negotiate contracts and oversee the process than agents anyways. One could argue that the utility of an agent is also diminished with respect to "rank and file" and "franchise tag" players that don't have much room to even negotiate. If a player then decides to go outside the union and hire his own agent and is harmed as a result, the union could say, "I told you so."
Posted By : Rick Karcher
A Revolution Against David Stern and Creeping Orwellianism?
Message posted on : 2006-11-21 - 15:20:00
Dictatorships are never popular, at least in hindsight. They always seem to crumble as people tire of losing their freedom and being told what to do. Perhaps that is why Victor Hugo once said,"When dictatorship is a fact, revolution is a right."
While events over the last week do not necessarily suggest a brewing "revolution" against NBA commissioner David Stern, they do indicate that professional sports' most powerful and arguably controlling commissioner may be headed for some rough waters. Here are some of the key events:
I. Nutrition, Power, and Going Around Collective Bargaining
As detailed by Liz Robbins in the New York Times, the National Basketball Players Association, without the permission or acquiescence of the NBA, has entered into a one-year promotional agreement with Abbott Nutrition. The terms of the deal are not terribly earth-shattering, but the motivations of the NBPA are: the NBPA is tired of the NBA unilaterally imposing rules, such as with the dress code and the new ball:
The union's unilateral action — albeit over energy bars and protein shakes — comes as [NBPA Executive Director Billy] Hunter is voicing strong objections to the N.B.A.'s actions. He said he was frustrated that the league had not consulted the union on decisions ranging from the dress code to the new ball to the officials' crackdown on complaining. If the agreement with EAS is not a pre-emptive strike, then it is a sign of an increasingly strained relationship between the union and the N.B.A. “A lot of that has been precipitated by the league, the moves that the commissioner has decided to make and implement — many we feel are beyond scope of the collective bargaining agreement,� Hunter said. “At a minimum, we should have been consulted. As a result, maybe I feel less compelled to consult them on things.�
II. Working Conditions, Race, and Unfair Labor Charges
The NBA's insistence on using a new kind of basketball with different microfibers has drawn harsh rebuke from a number of players. Basically, a lot of players hate the feel of the new ball and believe it is hurting their game. But the NBA and Stern in particular believe the new ball looks nice and is a better visual. Henry Abbott over at True Hoop has all of the details.
Last week, Mitch Lawrence of the New York Daily News reported that the NBPA plans to file an unfair labor charge over this new ball. The gist of their beef is that the ball adversely affects their working conditions. Lawrence reports that the NBPA is also opposed to various other new rules implemented by the NBA without the players' consent. Some of the rules seem like they belong in George Orwell's 1984:
When the Knicks played the Wizards at the Garden last night, there was a newly
assigned official who was at the arena for the expressed purpose of watching for players pulling their jerseys out of their pants when they came out of the game. As of this season, that move is illegal and subject to fines. Those same set of eyes were looking for players wearing rubber bands with their names on them. Anyone caught displaying those would be subject to a call from the league, with a warning to stop. That same spy was busy during the playing of "The Star-Spangled Banner," watching for players chewing gum and shifting as they stood in line, which have been outlawed . . .
Billy Hunter had some especially harsh words for Stern in Lawrence's piece:
"I've never seen a group of rules that has upset the whole group of players like these have. I normally have to really work on galvanizing the players for our next collective bargaining period. Not this time. I've heard from all the marquee ballplayers . . . Kevin Garnett, Kobe Bryant, Steve Nash. Our guys are feeling stifled."
"The image problem is a subtle way of talking about black ballplayers and how they appear to the populace. When we had our last round of negotiations, David told me that he was consulting with one of President Bush's political consultants. The issue was, what they can do to make the game and players more appealing to the red states?"
As reported in this week's Street and Smith's Sports Business Journal, agent Bill Strickland seems to agree with Hunter that Stern has too much unilateral power: “I definitely think he has too much power. ... We've had situations where we've talked about freedom of speech issues relative to tattoos and content of responses to questions postgame, so I don't think there's any question about it."
III. NBA Owners Growing Tired of Stern's Unilateralism
The greatest challenge to Stern might come from within. According to the Philadelphia Inquirer, when Charlotte Bobcats owner Robert Johnson--arguably one of the most respected and successful businesspersons in America--challenged Stern at the latest Board of NBA governors meeting, Stern "went ballistic." Here are the details:
The muzzling of Mark Cuban by the NBA did not go over unanimously at the recent Board of Governors meeting. We hear Bobcats owner Bob Johnson, while not necessarily leaping to Cuban's defense, did ask David Stern if such draconian measures - giving the Commish the power to suspend any owner who disparages the league publicly - were in everyone's best interests. And shouldn't this be handled by a committee of owners instead of by Stern alone? Then, according to two sources, when Johnson further suggested that this was a personal matter between Cuban and Stern that the two of them should settle, Stern went ballistic, telling Johnson that this was a league matter, not an individual one, and that the value of investments such as Johnson's $300 million to get the Charlotte expansion franchise were hurt when Cuban constantly belittled the on-court product. In the end, Stern got his way.
Will Stern be ousted? There is no tangible evidence, but his recent behavior suggests that his dictatorial powers might have gone too far. Embarrassing Bob Johnson in front of his fellow owners was probably not a good idea and will seemingly have some consequences down-the-line.
No matter the outcome, it's good to see the NBPA become more vigilant in
protecting the players' interests. The conclusion of my article
Posted By : Michael McCann
McCain-Feingold and Shays-Meehan for College Sports? The NCAA's Hard and Soft Money
Message posted on : 2006-11-21 - 00:05:00
Last week, NCAA President Myles Brand wrote a 25-page letter to the House Ways and Means Committee arguing that the NCAA deserves its tax-exempt status. According to Brand, the NCAA is foremost about education. We've examined the validity of this claim on numerous occasions.
Will Li e-mails some great commentary about Brand's letter. Will suggests that we might want to re-conceptualize how we look at NCAA funding through "hard money" and "soft money" lenses:
I wonder how Brand justifies things like 7 figure salaries (Charlie Weis) and/or exorbitant stadium expenditures (Texas/ HDTV Screen)? The article says he does (by saying that coaches are paid commensurate to other highly recruited faculty? Is that true?).
It seems to me that the conflict isn't between federal funding and TV rights, though.
The real problem is that, to use an analogy, there's so much soft money in the system. In that analogy, if college sports and the NCAA are a party or a candidate, the hard money is the money they collect from sponsors and ads and television rights, the amounts of which should theoretically be publicly available. But (correct me if I'm wrong), we have no way of knowing how much boosters are spending on donations, incentives, athlete recruitment and other in-kind contributions to the schools.
I think what the NCAA needs is an equivalent to McCain-Feingold.
While NCAA rules obviously limit boosters (see e.g., Sacrificial Gyro? Pete Carroll's Big Fat Greek Recruiting Methods), do we know how much they actually provide? And to whom? And when? Are boosters a less-detectable way for schools to get what they want, much like, until McCain-Feingold and Shays-Meehan, financial contributions to political parties had been a less-detectable way for politicians to get what they want?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-11-20 - 10:12:00
New this week:Jonathan C. Benitah, Student article, Anti-scalping laws: should they be forgotten?, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 55 (2005)
Christian Dennie, Is Clarett correct? A glance at the purview of the antitrust labor exemption, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2005)
Bennett Liebman, Reversing the refs: an argument for limited review in horse racing, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 23 (2005)
Posted By : Geoffrey Rapp
Cubs Sign Alfonso Soriano for 8-Years, $136 Million: Does His Age Matter?
Message posted on : 2006-11-20 - 06:05:00
The Chicago Cubs have signed Alfonso Soriano to an 8-year, $136 million contract. The free agent outfielder had what many consider to be an excellent 2006 season, hitting 46 homers, 41 doubles, 95 RBIs, and stealing 41 bases. On the other hand, he batted an uninspiring .277, struck out 160 times, and his OPS of .911, while impressive, was only 13th in the National League. But the Cubs haven't won a World Series since 1908--the 100 year anniversary looms--and fresh off a 66-96 season, it's probably fair to assume that GM Jim Hendry has to make a splash this off season for his own job security.
Soriano's contract is the fifth-largest in MLB history, behind Alex Rodriguez ($252 million for 10 years), Derek Jeter ($189 million for 10 years), Manny Ramirez ($160 million for eight years) and Todd Helton ($141.5 million for 11 years).
But what makes Soriano's contract so interesting is that he'll be 31-years-old when the 2007 season begins, and presumably in the latter portion of his prime. In contrast, when they signed their mega-deals, the players noted above were in, or about to enter, their primes: Alex Rodriguez was 26, Derek Jeter was 27, and both Todd Helton and Manny Ramirez were 28. Granted, their contracts--other than Ramirez's--were for longer terms than Soriano's, but at least their employers were clearly paying for what was to come.
So are the Cubs paying Soriano more for his past accomplishments? That begs the question of when a player's prime occurs. Seattle Mariners GM Bill Bavasi says it begins at age 27. Kevin Whitaker of Between the Lines says it's between ages 26 and 30, with age 27 typically a player's peak year. Ron Cook of the Pittsburgh Post-Gazette says it's between ages 28 and 32.
Economics professor J.C. Bradbury has conducted some empirical research on baseball players' primes and he also links to some other studies (which generally find that players peak between ages 26 and 28). Bradbury finds that most players peak at age 29, although superstars tend to peak between ages 31 and 32.
Regardless of when a player's prime occurs, Soriano's career path will not necessarily follow the typical trajectory. In fact, he'll probably continue to put up excellent numbers for several years to come, and even if he is no longer a 40/40 threat by age 34 or 35, he could still be a very productive player--34-year-old Manny Ramirez is still one of the most feared hitters in baseball and 36-year-old Jim Thome hit 42 homeruns last season.
But an 8-year, $136 million contract for a 31-year-old still seems very risky, especially one whose speed is such a significant portion of his value. Then again, if the Cubs win the World Series with Soriano, there is no
doubt the fans will think he was worth every penny.
Update: See Jonathan Weiler's remarks on Sports Media Review.
Posted By : Michael McCann
WSJ Law Blog on the Michigan-Ohio State Game
Message posted on : 2006-11-17 - 18:24:00
The WSJ Law Blog has an amusing post entitled, "Ohio State v. Michigan: The Legal Edition." I must say, here at the border of Michigan and Ohio, it's definitely the event of the month, and it's nice to know people are paying attention even in New York! Law Blogger Peter Lattman has provoked an email exchange and a friendly wager between the deans of Ohio State's and Michigan's law schools (which, if you read it too closely, takes a bit of the fun out of the upcoming game).
Posted By : Geoffrey Rapp
Judge Denies Russian Team's Request for Injunction in Malkin Suit
Message posted on : 2006-11-17 - 09:27:00
Here's my monthly update on the Malkin lawsuit. According to USA Today reporter Kevin Allen, in rejecting Metallurg's request for an injunction to prevent Evgeni Malkin from continuing to play for the Pittsburgh Penguins, U.S. District Court Judge Loretta Preska said that the Metallurg would not likely prevail on the merits because she believed that the NHL "would be able to demonstrate" that the league's transfer fee policy was collectively bargained with players, which makes it "immune" from antitrust scrutiny."
HUH??? This is the first time I have ever heard that the league and the union collectively bargained for a transfer fee policy. They can bargain all they want about something, but since when does the non-statutory labor exemption preclude alleged restraints on competition that primarily affect parties outside the collective bargaining relationship? [Oh well, I love reading decisions involving the interplay between antitrust law and sports.]
I am interested in reading whether Judge Preska felt that the Mettalurg is unlikely to prevail on the merits of its tortious interference claim. But in any event, I think denying the injunction is the right result for a completely different reason; that being that the Russian teams "are unlikely to be able to prove that they cannot be compensated by money damages." As the judge properly noted, "These cases are always about money, the only question is how much."
Thus, the Mettalurg will still have its day in court. They just can't stop Malkin from playing right now.
Posted By : Rick Karcher
What's the Proper Role of Unions in Disciplining Agents?
Message posted on : 2006-11-16 - 15:25:00
Last January, I discussed the NFLPA's efforts to impose a 2-year suspension on sports agent David Dunn. The NFLPA's suspension was put on hold when Dunn filed for Chapter 11 bankruptcy protection, which automatically stays administrative actions against the debtor. Liz Mullen of Street & Smith's Sports Business Journal has an interesting piece in the Oct. 23-29 issue ("NFLPA's vote to suspend Dunn shows it will take on big agents"). Mullen reports that Dunn's bankruptcy proceeding was dismissed, and Dunn said that he will appeal the suspension to the NFLPA's arbitrator, Roger Kaplan. The NFLPA is hoping that a hearing can be scheduled this month.
Mullen also notes that the NFLPA, which appears to be the only one of the four sports unions that actively investigates and disciplines agents for violating its rules of conduct, has never suspended an agent with as many big-name clients as Dunn has. Two of Dunn's clients spoke out against the suspension:
Drew Bledsoe: "It's ridiculous. There is no reason for the [players association] to be seeking punishment against Dave after so many NFL players freely chose Dave to continue as their representative after he left Leigh Steinberg's firm to start Athletes First."
John Lynch: "The decision to discipline Dave is misguided and completely unjustified. He did nothing wrong, and frankly, I am astounded that the union didn't call me, one of its members, to learn the truth before taking this step."
"We have six players on our disciplinary committee and a majority of them believe that Dunn's actions violated our agent regulations. The committee is not disciplining Dunn for anything he did in representing Drew Bledsoe, John Lynch, or any of his other active clients. The discipline is, instead, because he, among other things, failed to properly represent a former client and improperly interfered with another agents' clients."
New Study Shows Public Financing of Stadiums Lowers Ticket Prices
Message posted on : 2006-11-15 - 10:17:00
A newly released study suggests that, at least the NFL context, public financing of stadiums leads to lower ticket prices. The paper, The Use of Public Funds for Private Benefit: An Examination of the Relationship between Public Stadium Funding and Ticket Prices in the National Football League, by Matthew Brown (South Carolina), Daniel Rascher (USF), and Wesley Ward (Ohio), can be downloaded free of charge from this site. Here's part of the paper's abstract:The purpose of this study was to examine the relationship between the use of public funds to build stadia and the profit maximizing goals of National Football League (NFL) franchises. A hypothesis was formulated that stated the impact of the public share of the construction cost would have no effect on relative ticket prices for those that consume the product. The cross-sectional data for a ticket price model, which consisted of seasonal data from every NFL team to play from 1991 through 2003, was investigated. The results showed an increase in public funding by 10% lowers ticket prices by 42 cents. As shown, the bulk of the variation in ticket prices was due to a general increase over time and MSA per capita income.
Posted By : Geoffrey Rapp
Randy Moss and Dropped Passes: Stone Fingers or Workplace Unhappiness?
Message posted on : 2006-11-15 - 00:10:00
Oakland Raiders' wide receiver Randy Moss had an interesting explanation when asked why he has dropped so many passes this season:
"Maybe because I'm unhappy, and I'm not too much excited about what's going on, so my concentration and focus level tends to go down when I'm in a bad mood. So all I can say is if you put me in a good situation and make me happy, man, you get good results."
It would be easy to criticize Moss for those remarks. People hate it when others, especially those they don't know, make excuses for under-performing. In that same vein, employees often feel implicit pressure to show up and do a good job at work, even if they are feeling under-the-weather or simply sad.
This seems especially true in the context of professional sports. Just think about what frequently happens when a player "takes too long" to come back from an injury: the player is derided by fans and media as "soft" or "weak." Players' earning capacity can be adversely affected when they develop a reputation for "not playing hurt," a point raised by Sports Illustrated's Peter King in a column about former New York Giants cornerback Phillippi Sparks.
Sometimes coaches supply the same criticism. New England Patriots' fans know that all-to-well from 10 years ago, when they heard Bill Parcells' ungracious reply to a question about rookie wide receiver Terry Glenn's hamstring injury: "She's making progress." Oakland Raiders' coach Art Shell seems just as skeptical about Moss. When asked about Moss attributing his unhappiness to his poor play, Shell said, "You're paid to play a game you've played for many years and that you love and once you hit the field, you compete. That's the way Art Shell sees it." Aside from referring to himself in the third-person, Shell probably said what a lot of coaches would say: toughen up, Randy!
But if you think about it, don't Moss's remarks make some sense? After-all, we can all relate to being distracted and affected by personal matters or difficult workplace environments, and it's a lot harder to do things in those settings. So why shouldn't Moss use unhappiness as an excuse?
Legal scholars have been thinking about these very phenomena. Just a few weeks ago at the colloquium on labor and employment law scholarship at Marquette Law School, I heard Temple Law professor Peter Huang deliver a talk on the implications of happiness research on employment law, a subject that he is writing an article about with Marquette Law professor Scott Moss (no relation to Randy!). One such implication is that employees are more likely to discriminate others in the workplace when they are unhappy. So happiness really does matter.
That point has also been made over at Health Law Prof Blog, where Cincinnati Law professor Betsy Malloy cites a study of attorneys' happiness which found:
Lawyers are 3.6 times more likely to be depressed than members of other professions, and it's not just because their jobs are more stressful. For most people, job stress has little effect on happiness unless it is accompanied by a lack of control (lawyers, of course, have clients to listen to) or involves taking something away from somebody else (a common feature of the legal system).
Books have also been devoted to how happiness can affect our job performance. Daniel Gilbert's Stumbling on Happiness is perhaps the leading book on the topic. Gilbert incorporates a great deal of social psychology, and explains how what we think makes happy really doesn't, and that actually does make us happy is often beyond our consciousness.
But back to Randy Moss. We know that unhappiness can impair workplace performance, particularly when it is accompanied by a lack of control (and Moss has the not-so-magnificent Andrew Walter as his quarterback: he of the lowest quarterback rating in the NFL). So is Moss really making an excuse or is he just being honest? Would we rather him say that he is "fully responsible" for the dropped passes when in fact his emotional health may be a real cause? If his fingers were broken--a physical injury--we would certainly understand the dropped passes, so why not let an emotional injury also excuse those drops?
Posted By : Michael McCann
NFL Wins Insurance Dispute Over Maurice Clarett Case
Message posted on : 2006-11-14 - 22:46:00
The legal bill associated with fighting off Maurice Clarett's challenge to the NFL's age restriction? Just eight hundred and fifty thousand dollars, according to a New York Appellate Division opinion released today in NFL v. Vigilant Insurance Company, 2006 WL 3290617 (N.Y.A.D. Nov. 14, 2006). Vigilant issued an "executive protection insurance policy," which providedthe NFL with claims-made liability coverage and defined "Loss" to include indemnification for defense costs. The insuring clause required Vigilant to pay for "all Loss for which [the NFL] becomes legally obligated to pay on account of any Claim first made against the [NFL] during the Policy Period ... for a Wrongful Act." The policy defined "Wrongful Act" as "any error, misstatement, misleading statement, act, omission, neglect or breach of duty committed ... by [the NFL] before or during the policy period."
However, the policy contained an "employment exclusion", relieving the insurer of responsibility "for Loss on account of any Claim made against [the NFL] ... for any Employment Practices."
Vigilant denied that it was responsible for the costs of defending Clarett's antitrust suit on the ground that the suit concerned the NFL's employment practices and was thus subject to the insurance contract's employment exclusion. The NFL sued Vigilant in New York state court, arguing that the exclusion applied only to employment law claims (such as FLSA claims, employment discrimination claims, and the like), not to antitrust disputes.
After a lower court granted Vigilant's motion to dismiss, the appellate division reversed. The court opined thatClarett's antitrust claim against the NFL did not arise from any actual or prospective employment relationship with the NFL, as it is undisputed that NFL players are employees of individual NFL teams, not the NFL itself.
Interpreting the exclusion against the insurer, the court ruled that Vigilant's motion to dismiss should not have been granted.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Alabama Suing Sports Artist Over Crimson Tide Artwork (Update)
Message posted on : 2006-11-13 - 11:00:00
This Sunday's New York Times included a nifty front page article on a pending lawsuit against Birmingham sports artist Daniel A. Moore filed by the University of Alabama. Our own Greg Skidmore covered this dispute back in April '05 in this post. Moore has made what appears to be a pretty good living painting action shots of Alabama football games. His gallery's web site is called Alabama Crimson Tide Prints.
As Greg predicted, Mr. Moore has now moved to dismiss the case by arguing that the University lacks a right to control depiction of events of historic or public significance.Mr. Moore has asked Judge R. David Proctor of the Federal District Court in Birmingham to dismiss the case on First Amendment grounds. His brief cited a decision of the federal appeals court in California ruling that a trademark owner “does not have the right to control public discourse� if “the public imbues his mark with a meaning.�
After the citation, Mr. Moore's lawyer, Stephen D. Heninger, added a parenthetical aside. “Who could argue with a straight face,� he asked, “that the cultural significance of Alabama football has not assumed such a role?�
The problem for Mr. Moore, is that unlike in other cases favoring artists' rights, which may have involved slightly more transformative expression, his Alabama football paintings tend to be similar to the photographs he uses to compose his work.
I'm not sure I share all of the sentiments expressed in the article. For instance:“This lawsuit is the equivalent of the Catholic Church suing Michelangelo for painting the Sistine Chapel,� said Keith Dunnavant, an Alabama alumnus and the author of “Coach: The Life of Paul ‘Bear' Bryant.�
The difference, of course, is that Michelangelo was commissioned by Pope Julius II to paint the Sistine Chapel, whereas Mr. Moore has not been commissioned by the University of Alabama.
Another questionable suggestion:James Glen Stovall, who taught journalism at the university for 25 years, said only one sort of person would support the suit.
“I can see why, if you're sitting in a roomful of lawyers, you might come to that conclusion,� Mr. Stovall said. “But no one outside of that room would say: ‘Hey, that's a good idea. Let's sue Daniel Moore.' �
To me, that does not give enough credit to the University's claims. The University seemed to take particular offense at Mr. Moore's use of his paintings on merchandise like coffee mugs and calendars.
What's really driving this case? Probably not Mr. Moore's sale of a $25,000 watercolor or a $100 print, but rather his sale of a $2.00 coffee mug that eats into the University's merchandising revenues. My guess is that, if the University survives Moore's current motion to dismiss, the case will be headed towards some sort of settlement in which Moore ceases the sale of mugs and other trinkets emblazoned with his art in exchange for being allowed to continue selling the big ticket items.
Posted By : Geoffrey Rapp
Subscribe to Sports Law Blog through Google
Message posted on : 2006-11-09 - 13:33:00
You can now subscribe to Sports Law Blog through your personal Google homepage or Google Reader. Here is the link:
If you add Sports Law Blog to your Google homepage, you can drag its content into your main Google page, or you can keep it under a separate tab. If you use Google Reader, you will need to create a free Google account.
Thanks to Robby Forbes, Editor-in-Chief of the Virginia Sports and Entertainment Law Journal, for alerting us of this Google option. We are clearly not the most "technical"/computer guys around, so we always appreciate suggstions that would improve our blog and would be easy for us to implement.
Posted By : Michael McCann
Larry Brown Settlement Terms: $18.5 million
Message posted on : 2006-11-09 - 10:19:00
Cablevision, the parent company of the New York Knicks, has disclosed the terms of its previously confidential settment with ex-coach Larry Brown. Brown, who had filed a claim for $53 million ($41 million due under the contract and an additional $12 million in damages), accepted an offer of $18.5 million. While this is less than half of what he claimed he was due, it is still a nice chunk of change for doing no work.
You can read the entire 10Q at the SEC's EDGAR database here, although the only relevant paragraph is:On June 22, 2006, the New York Knicks, a division of Madison Square Garden, L.P., notified the then-head coach of the Knicks, Larry Brown, that his employment had been terminated with cause pursuant to his employment agreement with the Knicks. Mr. Brown disputed the Knicks' right to terminate his employment with cause and the matter was referred to the Commissioner of the National Basketball Association (“NBA�), who had the authority under the agreement to resolve all disputes. On October 30, 2006, the parties reached a settlement of this matter under which the Knicks agreed to pay Mr. Brown $18,500 of the disputed amount in connection with his employment agreement, which amount has been accrued for in the accompanying financial statements as of September 30, 2006.
All dollar amounts are listed in "thousands of dollars," so you have to add three zeroes to the figure listed. You know that writing this paragraph was the highlight of some securities lawyer's week.
For previous Sports Law Blog writing on this dispute, see:Letter to Mr. Stern: Larry Brown's Award Should be All or Nothing (September 30)
Larry Brown is Grieving (June 29)
Is There a Disney Case Against Cablevision Over the Larry Brown Contract? (May 16)
HT to UT Law 3L and Sports Law Association Prez Justin Stone for calling this news to my attention.
Posted By : Geoffrey Rapp
Paper Release: Fantasy League Use of Players' Names and Stats
Message posted on : 2006-11-08 - 20:45:00
Last August, I discussed the ruling of the Eastern District of Missouri in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., which held that fantasy league operators do not violate the players' right of publicity by using their names and performance statistics without consent. I'm pleased to announce that my recently completed article entitled, The Use of Players' Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, will be published in the Winter Issue of Penn State Law Review. An unedited draft of the article can be downloaded here. I encourage you to read it and I welcome your comments.
My article contains an in-depth analysis and application of right of publicity law to fantasy sports leagues, including a discussion about the business and economics of the fantasy sports league industry, the policy considerations involved and the application of the First Amendment. My article explains why the federal district court wrongly decided the case, and attempts to define workable standards in a confusing area of law. The article will be published in February, and the Eighth Circuit Court of Appeals is scheduled to hear the case in late spring.
Michael McCann is currently working on a paper entitled, The Wonderlic Test for the NFL Draft: Linking Stereotype Threat and the Law, which can be downloaded from the link to Michael's articles on SSRN. Michael was a guest at my law school today, and each of us presented our papers. I want to thank Michael on behalf of our student body and faculty, who thoroughly enjoyed his presentation.
Posted By : Rick Karcher
Bidding for Matsuzaka Poses Interesting Legal Issues
Message posted on : 2006-11-08 - 07:30:00
Today at 5:00 p.m ET, the bidding rights to Japanese pitcher Daisuke Matsuzaka will end. At that time, MLB will inform the Seibu Lions of the winning bid — without identifying the team — and Seibu has until Nov. 14 to accept or reject the bid. The team with the winning bid will then have 30 days to negotiate a contract with Matsuzaka and his agent Scott Boras. If no deal is reached, Matsuzaka returns to Japan and the major league team will be refunded its posting fee, which is predicted to reach as high as $30 million. See Bob Nightengale, USA Today, Matsuzaka market nears close.
ESPN Magazine writer Buster Olney raises a fascinating issue:
The posting system is deeply flawed. For example, here's one sabotage scenario that might interest a team like Baltimore, which is faced with the possibility that Matsuzaka will land with either of the big market monsters in its division, the Yankees or the Red Sox. The Orioles could post a huge bid -- say $50 million -- and blow everybody else out of the water. With exclusive negotiating rights, they then could offer Matsuzaka a take-it-or-leave-it, strategically structured bid, like a 10-year, $5 million-per-year deal. Matsuzaka and agent Scott Boras, with just 30 days to negotiate and with no ability to generate a competing bid from another major league team, would have the stark choice of taking the Orioles' lowball offer or remaining in Japan. If Matsuzaka came to the U.S. under those circumstances -- and that would seem very unlikely -- the Orioles would have a frontline pitcher for less than the total package that everybody expects it will cost to get Matsuzaka. And if he were to stay in Japan after such a lowball offer, the Orioles would get their posting fee back and would still serve their own purposes, as well, by keeping him out of the hands of the Red Sox and Yankees.
Now, switch gears, because there is another interesting legal issue arising out of the bid process for Matsuzaka. Boras represents the top pitchers competing in the open free agent market this year: Zito, Maddux and Weaver. It's definitely in Matsuzaka's best interest to sign with an MLB team than to go back and play in Japan, even if the contract is something less than what Boras could get in an open market. But is it in the
best interest of each of these three pitchers for Matsuzaka to sign right now? Because if Matsuzaka signs, it would eliminate a team who is in dire need of a premier starter from otherwise bidding in an open market for their services in a few weeks, which would obviously impact the bargaining leverage of each of them in the open market. More to the point, what if the team that gets the winning bid is a free-spending team like the Yankees or Red Sox? How would Boras juggle the best interest of each of the four players in that scenario?
UPDATE (Nov. 14): It was reported yesterday that the Red Sox made the highest bid at $42 million! This bid reportedly far exceeded any other team's offer.
UPDATE (Nov. 15): It has just been reported that the Red Sox actually bid $51.1 million for the negotiation rights, and that the Seibu Lions (obviously) accepted the bid.
Posted By : Rick Karcher
The Origins of the List of Baseball Greats in Flood v. Kuhn
Message posted on : 2006-11-06 - 20:18:00
One of the oddest things about the Supreme Court case of Flood v. Kuhn, where the court reaffirmed baseball's antitrust exemption, is the following passage from Justice Blackmun's opinion:Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.
The list is not only endless, but a classic example of the kind of sickening sentiment that infects so much of American sports jurisprudence. There are a lot of great stories about this list, such as a clerk from another chamber jokingly inquiring as to the omission of a particular player and receiving a detailed memorandum justifying the player's exclusion a few days later, as well as the story that Justice Marshall originally planned to dissent from the opinion given the list's omission of any African American players (some were subsequently added).
Now, via the Volokh Conspiracy, I've learned of an exciting new paper, Blackmun's List, by Northeastern University law professor and former Baseball Hall of Fame scholar-in-residence Roger Abrams. Along with a recent book on the Flood case, this article promises to enhance understanding about a classic opinion from sports law. You can download the paper for free from this link.
In skimming the paper, it's obvious that Professor Abrams is amused by Blackmun's list. He refers to it as a "curious and quite exceptional paean to the appellee in what was a critical sports law decision . . . ." While the paper is still in draft form (i.e., it contains some odd formatting, some blanks to be filled in at a later date, and will likely go through some organizational reworking), it does offer some interesting perspectives from a veteran sports law
teacher on this odd passage and some of the names on the list. I look forward to reading the finished version.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-11-06 - 10:03:00
New this week is a collection of articles from last spring's Willamette Law Review symposium on "The Future of Sports Law":Michael A. McCann, Social psychology, calamities, and sports law, 42 WILLAMETTE LAW REVIEW 585 (2006)
Jeffrey Standen, The beauty of bets: wagers as compen-sation for professional athletes, 42 WILLAMETTE LAW REVIEW 639 (2006)
Jack F. Williams, The coming revenue revolution in sports, 42 WILLAMETTE LAW REVIEW 669 (2006)
Chad Ford, Peace and hoops: basketball as a role player in sustainable peacebuilding, 42 WILLAMETTE LAW REVIEW 709 (2006)
Richard T. Karcher, Solving problems in the player representation business: unions should be the “exclusive� represen-tatives of the players, 42 WILLAMETTE LAW REVIEW 737 (2006)
Timothy Davis, Regulating the athlete-agent industry: intended and unintended consequences, 42 WILLAMETTE LAW REVIEW 781 (2006)
Maureen A. Weston, Internationalization in college sports: is-sues in recruiting, amateurism, and scope, 42 WILLAMETTE LAW REVIEW 829 (2006)
James A.R. Nafzinger, The future of international sports law, 42 WILLAMETTE LAW REVIEW 861-876 (2006)
Posted By : Geoffrey Rapp
CBS Mostly Loses Case Against Former Broadcaster Brent Jones
Message posted on : 2006-11-03 - 10:20:00
Yesterday, Judge Chin of the U.S. District Court for the Southern District of New York issued an opinion dismissing the bulk of the CBS network's claims against former football commentator and one-time 49er tight end Brent Jones. Jones walked away from CBS in the middle of week four of the 2005 NFL season, purportedly to spend more time with his family. The problem, in CBS's eyes, was that Jones had been paid on a weekly basis between January and October, 2005 (based on an annual salary of $200,000). Yet at the time he quit, Jones had only called three games that season (out of 17). CBS sued to recover 14/17 of the money it had paid Jones.
In his opinion in CBS Broadcasting Inc. v. Jones, 2006 WL 3095916 (S.D.N.Y. Nov. 2, 2006), Judge Chin largely dismissed CBS's breach of contract and unjust enrichment claims against Jones. The judge explained:The Agreement does not reference the number of football games Jones was expected to call each year, nor does it contain a provision for the return of any payment to CBS in the event Jones terminated the Agreement prematurely. Rather, paragraph 19 of the Agreement provides in relevant part that: "If Contractor or Artist at any time materially breaches any provision of this Agreement ... CBS may ... reduce Contractor's compensation pro rata, and/or CBS may, by so notifying Contractor during or within a reasonable time after such period, terminate this Agreement." "[P]ro rata" is not defined.
Thus, some ambiguity:Here, the Agreement is not wholly without ambiguity. It provides that in the event that Contractor or Artist breaches, CBS may "reduce Contractor's compensation pro rata," but it does not define "pro rata." Nonetheless, as between the two competing interpretations before the Court, I conclude that a reasonably intelligent and objective person could give the Agreement only one interpretation--that "pro rata" means a proportion based not on the number of games called out of seventeen, but rather, on the number of weeks out of the year the Agreement was in effect.
First, the express language of the Agreement undermines CBS's argument. . . . Second, the Agreement does not include any language to support CBS's position There is no reference to the number of games that Jones was obligated to call per year. Thus, there is no explanation for CBS's contention that Jones was obligated to call seventeen games, the number of games in the NFL's regular season. Furthermore, there is no provision in the Agreement for reimbursement in the event of a breach by Jones. The remedy set out in the Agreement is reduction and/or termination. CBS, in accordance with the Agreement, terminated the contract at the time of breach. If the parties had contemplated the extraordinary remedy of reimbursement in the case of a breach, they surely would have spelled that out in the Agreement.
Third, CBS's interpretation does not make sense. The number of games was not specified. There could have been more than seventeen games, including exhibition games, playoff games, and the Pro Bowl. Also, Jones's obligations were not limited to calling games. The Agreement references other duties, such as attending seminars, program conferences, and trade shows.
The court also dismissed CBS's unjust enrichment claims, since under New York law there can be no claim in quasi-contract where a valid contract sets forth the parties' rights.
The court did, however, preserve one small piece of CBS's claim:The amended complaint alleges that Jones improperly
charged certain personal expenses to CBS, through his corporate credit card and otherwise. If any personal expenditures charged to CBS remain unpaid, Jones shall reimburse CBS. The Court is hopeful that the parties can resolve this issue themselves.
Posted By : Geoffrey Rapp
Drew Brees Wants No Part in his Mother's Political Campaign
Message posted on : 2006-11-03 - 06:00:00
New Orleans Saints quarterback Drew Brees has told Mina Brees, his mother and an Austin attorney, to stop using his picture in TV commercials while she runs as a Democrat for a spot on Texas' 3rd Court of Appeals that reviews civil and criminal cases. The commercial in question includes a picture of Drew Brees in a San Diego Chargers uniform (his former team) and notes Mina Brees' football ties, which includes being the daughter of a successful high school coach and the sister of a former University of Texas quarterback.
Drew says he called his mother and asked her to stop running the ads, and when she did not return his calls or stop using his image, his agent sent her a letter threatening legal action. According to Drew, the commercials were sending a message of, " 'If you don't know much about the election, vote for me because I know Drew' . . . and that is a shame because the political process should be decided on your credentials." But according to Mina, "everything in the ad was true" and she did not anticipate it upsetting her son. She said the connection to football is relevant to her campaign because through sports, her father, Ray Akins, taught her a strong work ethic that she would bring to a career as a judge. Mina says a version of the spot that omits references of Drew was taped last week and sent to TV stations last Friday.
I don't care to play the role of family therapist with this post. Instead, I want to focus in on Drew's agent "threatening legal action." In addition to sports law, I teach torts and this would make a perfect hypothetical exam question for my Torts II class where we discuss one of my favorite areas of the law, the right of privacy and defamation.
Drew would lose on defamation because there is no false statement in the ad (i.e it's a photo of Drew and Drew is actually Mina's son), nor is there anything being said about Drew that would be considered "defamatory" (i.e. that would subject Drew to hatred, ridicule, or contempt).
There are three potential right of privacy claims to analyze here: Right of publicity; misappropriation; and false light. Right of publicity is the "use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage." The misappropriation tort protects against intrusion upon an individual's private self-esteem and dignity (similar to a public disclosure of private facts claim), while the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. Here, there is no pecuniary loss to Drew and Mina has not reaped any financial gain from the use of Drew's identity. It would also be difficult for Drew to establish that Mina's use of his identity in trying to get elected as a judge resulted in any "commercial" advantage. Because Drew is a famous NFL quarterback and public figure, misappropriation would not be successful either because Drew would probably have a hard time convincing a judge or jury that the use of his name in the public arena intruded upon his private self-esteem and dignity resulting in emotional harm. A public disclosure of private facts claim fails for the same reason, and in addition because there are no "private" facts being disclosed in the ads.
Drew's best claim against his mother would probably be false light. For this claim, it is not necessary that the statements be defamatory; all that is required is that the defendant placed the plaintiff in a false light that would be "highly offensive to a reasonable person." Although the statements in and of themselves may be true, a cause of action can be established if the
statement implies untrue and unfavorable acts taken, or views held, by the plaintiff. Here, for example, Drew could say that the use of his identity in the ads implies that he supports his mother's campaign, when in fact he does not. There is one big problem however....Texas, like some jurisdictions, doesn't recognize a separate cause of action for false light.
Oh well Drew, I tried my best....
Posted By : Rick Karcher
Bill Belichick Trying to Delay Testimony as The Dreaded "Other Man" in Divorce Proceedings?
Message posted on : 2006-11-02 - 11:33:00
New England Patriots' head coach Bill Belichick is perhaps the most successful coach in pro sports. He's won three Super Bowls with teams that were generally considered less talented than others, and despite losing his 1st and 2nd best wide receivers from last season (Deion Branch and David Givens), Belichick has coached the Pats to a 6-1 record this season, including a stunning 31-7 victory at Minnesota a few nights ago.
But as we discussed back in July, Coach Belichick--a married man who has been separated from his wife, Debbie, for the last two years--is also a central character in Vincent and Sharon Shenoca's messy divorce proceeding. According to Vincent, a construction worker from New Jersey, Belichick has had a nearly 20-year affair with Sharon, who worked as a receptionist for the New York Giants while Belichick was their defensive coordinator under Bill Parcells. Vincent claims that Belichick has showered Sharon with gifts, calls her all the time, flies her to be at games with him, and has generally destroyed his marriage. In fact, according to Gayle Fee and Laura Raposa in the Boston Herald, Sharon was also Belichick's date to the Mets-Cardinals League Championship game earlier this month at Shea Stadium.
Back in August, a family court judge ordered that Belichick be available for questioning, particularly as to whether he has financed Sharon's "extravagant lifestyle," including membership in an upscale health club, a personal trainer, a vacation in Jamaica, a beach house rental on the Jersey Shore, travel by chartered jet, and brand new furniture and expensive clothing. Belichick is thus considered a "material witness" in the divorce proceedings--meaning that his testimony is considered essential--and the judge instructed him to "produce any financial records, credit card receipts, or bank transactions that reflect payments to Sharon." Since that time, attorneys for Belichick, Vincent, and Sharon, have been negotiating how and when Belichick should provide sworn testimony and what specific documents he must produce.
Interestingly, Belichick might not have to testify as to any sexual or romantic relations with Sharon because New Jersey is a "no-fault" state, meaning that if a husband or wife wishes to terminate the marriage, he or she can do so without cause and over the objection of the other spouse (although under New Jersey law, "no-fault" divorces are only eligible if the couple has been be separated for at least 18 months and has "no reasonable expectation of reconciliation"). But that doesn't take Belichick off the hook. As noted by Fee and Raposa, "Vincent's attorneys can - and have - asked to see how much money Belichick is forking over because that could have an impact on what Vincent may be ordered to pay his ex for alimony or child support."
Fee and Raposa speculate that Belichick's attorneys are trying to delay their client's involvement in the proceedings for as long as possible. That is not surprising, but it doesn't seem that Belichick will be able to postpone this matter until after the post season, which is clearly what he wants. And if that is true, then I suppose this supplies extra incentive for Belichick and the Pats to land a 1 or 2 seed in the AFC playoffs and thus receive a bye in the first round--and thus perhaps
enough time for Belichick to end his involvement in what is undoubtedly a personally-distracting matter. Beating Peyton Manning and the 7-0 Indianapolis Colts this Sunday night will certainly help towards that end.
Posted By : Michael McCann
Feds Allege Colombian Soccer Team a Drug Front
Message posted on : 2006-11-01 - 10:59:00
The Treasury department has accused a Colombian soccer team of being a front for the Norte de Valle drug cartel, headed by Specifically Designated Narcotics Trafficker Carlos Alberto "Beto" Renteria. The accusation has led one member of the Colombian football federation's executive board to resign, and will result in a freezing of the assets of the soccer team.
Posted By : Geoffrey Rapp
Sports Agent Charged With Human Trafficking
Message posted on : 2006-11-01 - 10:49:00
According to the Miami Herald:
A California-based baseball agent and four assistants were indicted Tuesday, accused of financing and organizing a smuggling scheme to get Cuban baseball players out of the communist island.
Agent Gustavo "Gus" Dominguez of Total Sports International is accused of hiring four men to help him get 19 Cubans out of the island on Aug. 22, 2004, including several ball players -- some of them now playing for minor league teams in the U.S. -- and three children identified in the indictment only by their initials.
After bringing the players to Florida, the schemers allegedly moved them by van to California."In California, the defendants rented an apartment for the baseball players and provided food and clothing for them," according to a press release from the U.S. Attorney's Office. "The defendants immediately began training and conditioning the baseball players and failed to present the baseball players to Customs and Border Protection for immigration processing in the United States."
The Indictment charges all five defendants with a conspiracy to bring aliens illegally into the United States, transporting the aliens in violation of law, and concealing and harboring the aliens from detection.
Although coaches have gotten in trouble under US immigration laws for their cross-border recruiting efforts, as Greg noted here, I believe this is the first sports agent to be so charged. Further support for the notion that students of sports law would do well to study up on immigration law.
Posted By : Geoffrey Rapp
Is racism in sports on the rise?
Message posted on : 2006-11-01 - 09:17:00
Wash U law professor Christopher Bracey asks this question in a post yesterday at Blackprof.
Posted By : Geoffrey Rapp
Jeffrey A. Williams, 1980 - 2006
Message posted on : 2006-10-31 - 15:00:00
Over the weekend of August 28th, our good friend and fellow sports law blogger Jeffrey A. Williams died suddenly of a subdural hematoma. He was only 26. A graduate of Columbia Law School and Columbia University, Jeff was a second-year attorney at the prestigious New York City law firm You may remember Jeff from his wonderful guest posts on Sports Law Blog, as they astutely examined the interaction of race, sports, and the law. For instance, he discussed the Duke lacrosse scandal (5/4/2006 & 5/7/2006), race and the NFL Draft (5/7/2006), liability of the fan who started the Pistons-Pacers fight in 2005 (5/7/2006), masculinity and boxing (5/4/2006), and World Cup politics (6/18/2006).
Jeff was also a prolific scholar, publishing three law review articles in the last year and a half. They were UCLA Entertainment Law Review Columbia Journal of Gender and Law University of Pennsylvania Journal of Constitutional Law (forthcoming, 2006). I strongly recommend that you download Jeff's Ron Artest law review article, as it is a great read and one that I use extensively in my teaching materials.
I know Jeff had aspirations of one day becoming a fellow sports law professor, and he undoubtedly would have achieved them. The sports law community has lost a great guy, a great friend, and an extremely promising young scholar. May he live on through his outstanding published writings and may God bless his family at this most difficult time.
Harold Reynolds Sues ESPN for Wrongful Termination
Message posted on : 2006-10-31 - 11:54:00
Back in July, we discussed ESPN's decision to fire baseball analyst Harold Reynolds for allegedly sexually harassing a female employee. His firing in July occurred only four months after the 11-year employee had signed a six-year contract that would have paid him approximately $1 million annually. Be sure to check out the outstanding comments in response to that post. We debated the extent to which the
A couple of interesting things:
"During negotiations for any contract, ESPN raised no specific concerns about any past conduct or performance." (#9 from Reynolds' complaint)
Weren't there allegations of previous problems between HR and female co-workers? That said, the language in this doesn't say that there were not past incidents, just that ESPN did not include them in contract negotiations or put language in writing recognizing any previous incidents.
Items 14 and 15 are interesting - apparently ESPN hasn't been compliant with either Harold Reynolds's lawyer or the Connecticut Dept of Labor in providing a personnel file on Reynolds. This seems a bit strange to me if it's true, especially the part about not allowing "an employee of the Connecticut Department of Labor onto its premises."
The possibility of bureaucratic stalling aside, when corporations (like ESPN and Google) have basically created microcosms for their employees, where living and working are all essentially taken care of by the corporation, does the corporation take on additional liability, both to its employees and to the state? I don't know if that question makes complete sense.
Also, the suit does allow that Harold did hug an intern, and the fact that she did not complain for three weeks doesn't really mean a whole lot, in my opinion. That said, ESPN has been extremely tolerant of bad behavior by its celebrities in the past, and while it obviously doesn't condone his actions, it does make his immediate firing suspect. It will be interesting to see how ESPN responds to this.
Posted By : Michael McCann
Can parents be liable for coach-bashing?
Message posted on : 2006-10-30 - 15:49:00
A pending case in the Utah Supreme Court will address the status of public high school coaches under defamation law. According to the Salt Lake Tribune,
The case pits Michael O'Connor, who coached the Lehi High School girls' basketball team for three years, against parents who alleged he was demoralizing team members by berating them and favoring one player over the others.
At the end of the 2003-04 season, tensions had risen so much that relatives of some of the players wrote letters outlining their concerns and a handful of them spoke at an Alpine School District Board meeting about their frustrations. A few months later, in September 2004, the Lehi High principal dismissed O'Connor as head coach of the team.
A lower court judged dismissed O'Connor's case on the grounds that he was a public official and therefore had to show actual malice to recover for defamation (which he failed to do). The parents' complaints about O'Connor
began piling up over alleged abusive comments, a suspected recruitment irregularity and possible mishandling of money raised by players. Particularly troublesome to many of the parents was O'Connor's perceived favoritism toward Michelle Harrison, a 6-foot-2 forward considered one of the top players in Utah. . . . [T]he parents were . . . upset by the way the coach yelled at their daughters and allegedly failed to give them their share of playing time.
Even if O'Connor wins his appeal and is found to not be a public official, his damages might be slight. He has not been terminated from his employment as teacher, nor as golf coach. HT to Ben Maller.
Posted By : Geoffrey Rapp
New Baseball CBA Worse for Draftees and Minor Leaguers
Message posted on : 2006-10-30 - 09:20:00
Last week, MLB and the MLBPA agreed to a five-year labor contract that will allow play to continue uninterrupted through the 2011 season. While the players, team owners and fans are praising the new agreement and exclaiming that "it's such a great time in the game," the ones not applauding are all the minor leaguers and prospects for next year's draft. That's because the new CBA includes a revamped draft for amateur players, but nobody's talking about that. Here's a summary of some new provisions that substantially affect only drafted players and minor leaguers:
1. Clubs that fail to sign first or second round draft pick will receive the same pick in the subsequent draft as compensation. A club that fails to sign a third round pick will receive a sandwich pick between rounds three and four in the subsequent draft as compensation.
2. Signing deadline of August 15 for draft picks other than college seniors.
3. Period of time before a Player must be protected from the Rule 5 Draft is changed from three years (players who signed out of college) or four years (players who signed out of high school) to four or five years, respectively.
The changes to the draft described in Nos. 1 and 2 above substantially affect the negotiating leverage of drafted players. First, under the old rule, clubs had a huge incentive to sign their top picks because they wasted those draft picks if they didn't sign them. Now it's not a big deal if the clubs don't sign the player because they'll get that same pick again in the following year's draft (in addition to the pick they would otherwise have that year). Second, under the old rule, the clubs lost the rights to the drafted player when the player entered classes in the fall. While the new rule merely shortens the negotiation window by a few weeks, it will affect the ability of players to "hold out" during the negotiation process. Finally, under the old rule, clubs were forced to put minor league prospects on 40-man rosters a year sooner than they will be forced to do under the new rule. The Rule 5 draft is somewhat complicated, but essentially, if a club does not protect the player on the 40-man roster, then another team can draft that player and the drafting team is required to put the player on its 40-man roster.
I wonder if anybody within the union got any input from the draft prospects and minor league players before they agreed to the new provisions? So when Don Fehr says to the union player representatives, "are we willing to sacrifice the rights of prospective members of the union in exchange for something beneficial to the existing members," do you think anybody objected? Oh well, five years from now Mr. Fehr might be asking his player reps. a different question: Should we cut the farm system in half, reduce the number of draft rounds and impose a college draft age rule in return for increased benefits to major league players? Can anybody guess what their answer will be?
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2006-10-30 - 09:10:00
New this week:Joel Bulleigh, Note, The slippery slope of ski tort reform: will the judiciary uphold legislative intent?, 59 OKLAHOMA LAW REVIEW 155 (2006)
Nathaniel Grow, Note, There's no “I� in “League�: professional sports leagues and the single entity defense, 105 MICHIGAN LAW REVIEW 183 (2006)
Posted By : Geoffrey Rapp
A Sports Law Retrospective of the late Red Auerbach
Message posted on : 2006-10-28 - 22:26:00
Boston Celtics' chairman and president Arnold "Red" Auerbach passed away tonight at the age of 89. Auerbach was well-known for his coaching and player personnel accomplishments with the Celtics over the last 56 years. He was tied with Phil Jackson for the most NBA championship rings as a coach with nine, and pulled off a number of great draft picks and trades, including drafting Larry Bird and Kevin McHale and trading for Robert Parrish and Dennis Johnson, among many other accomplishments.
Auerbach's career also affected developments related to sports and the law. For instance, and as the Boston Globe's Peter May details in his Auerbach obituary tonight, Auerbach helped to break racial barriers in the NBA. Most notably, he drafted the league's first African-American player in 1950 in Chuck Cooper, hired pro sports' first African-American head coach in 1966 in Bill Russell, and started five African-Americans on the Celtics, an NBA first. Particularly when juxtaposed with the less racially-tolerant practices of the Boston Red Sox during that time, Auerbach's decisions seemed ahead of not only other NBA personnel, but sports actors and perhaps even people in general.
The low point for Auerbach in his career also influenced sports and the law. It occurred right after the Celtics, courtesy of an earlier trade engineered by Auerbach, drafted University of Maryland superstar Len Bias with the second overall pick in the 1986 draft. If any of you have seen ESPN Classic footage of Lenny Bias, you'll know exactly why he was drafted so highly--the guy was simply amazing, almost like a more gifted and rugged version of Elton Brand. But two days after the 1986 draft, Bias died of cardiac arrhythmia, most likely related to a cocaine overdose. His death would motivate NBA teams to conduct far more extensive background checks of prospective draft picks. The untimely death of Celtics' guard Reggie Lewis' in 1993 also led to reconsiderations of monitoring players with heart conditions (a topic I discuss in my recent publication in the University of Pennsylvania Journal of Labor and Employment Law). While Auerbach was no longer as actively involved with the Celtics by that point, he did draft Lewis back in 1987.
But all in all, Auerbach should be remembered far more for the good times than the bad times. He was probably the most influential coach and general manager in NBA history.
Posted By : Michael McCann
LSU Has Assistant Coach Arrested
Message posted on : 2006-10-26 - 16:45:00
LSU assistant strength coach, Travelle Gaines, was arrested and jailed this week for.... illegal steroid distribution? No... For assault and battery? No... For gambling, stealing, possession of narcotics? No, no, and no. Gaines has been accused of violating Louisiana state agent regulations by inviting student-athletes to his home to meet a sports agent and suggesting the agent should represent the athletes. University police also arrested sports agent Charles Taplin earlier this month for attempting to contact student athletes. According to LSU, notes and a cellphone gathered during Taplin's arrest, combined with interviews with several student-athletes, pointed to Gaines as assisting Taplin.
Louisiana, like most states, requires agents to be certified and prohibits all sorts of behavior by agents. Section 4:424 of Louisiana's statute regulating agents prohibits an athlete agent or an attorney from:
(1) entering into "any agreement, written or oral, by which the athlete agent offers anything of value, including the rendition of free or reduced-price legal services, to any employee of an institution of higher education located in [Louisiana] in return for the referral of any clients by that employee, and
(2) directly or indirectly contacting "an athlete who is participating in a team sport at an institution of higher learning located in [Louisiana] to discuss the athlete agent's representation of the athlete in the marketing of the athlete's athletic ability or reputation."
The statute provides that an athlete agent commits an offense if the agent knowingly or intentionally violates the provisions of Section 4:424, and that conviction of an offense is a misdemeanor and punishable by a fine of not more than ten thousand dollars, or by imprisonment of not more than one year, or both.
The statute regulates the conduct of agents and defines "athlete agent" as "a person who, directly or indirectly, recruits or solicits an athlete to enter into an agent contract or professional sport services contract with that person, or who for a fee procures, offers, promises, or attempts to obtain employment for an athlete with a professional sports team."
Unless there is more to the story, Gaines was put in jail for introducing some players to an agent. NCAA bylaw 11.1.4.1 even permits head coaches to contact agents to assist the athlete in selecting an agent and determining his market value. LSU might be justified in firing him, but is it justifiable for LSU to have this guy arrested?
Posted By : Rick Karcher
Cool Papa Bell's Daughter in Suit Against Topps
Message posted on : 2006-10-25 - 09:42:00
The WSJ Law Blog picks up on a New York Sun story regarding a lawsuit filed by the daughter of James "Cool Papa" Bell against baseball card giant Topps. The Law Blog explains: Bell's daughter, Connie Brooks, sued Topps over its description of Bell on the back of a 2001 baseball card. The squib said Cool Papa “earned his nickname after falling asleep right before a game.� In court papers, his daughter calls this a “bogus painful lie.� It belittles the hard lives of Negro League players and suggests her dad was an alcoholic or drug addict, she says, adding, “[t]hey take a Negro Leaguer and think it's okay to make him a little buffoonish, a little clownish, and suggest that he's nodding off.�
Although Topps has offered the plaintiff a $35,000 settlement, which she rejected, commentators do not expect her to have much success in court, according to the WSJ blog:Legal beagles say the suit looks dead on arrival. The deceased cannot be defamed under New York libel law, says Peter Harvey, a partner at Patterson Belknap. Harvey passes on some free legal advice to the daughter via the Sun, suggesting a better argument would be that Topps can't use Bell's likeness without the permission of his estate.
For more on the dispute, see here and here.
Posted By : Geoffrey Rapp
Deputy Shaquille O'Neal Part of Botched Police Raid?
Message posted on : 2006-10-25 - 06:12:00
Back in May, Geoff blogged about Miami Heat star Shaquille O'Neal "assisting" Florida law enforcement in busting those who sell or possess child pornography. At the time, O'Neal said that he only arrived at the defendant's house after the arrest, so it wasn't entirely clearly what services he provided, other than, I suppose, the novelty of having a 7'1, 220+ pound future hall of famer suddenly appearing in a police uniform at the bad guy's house. I imagine that might disorient the defendant and maybe make him more likely to talk to Shaq than other uniformed officers--I'm not sure. Regardless, O'Neal said that his reasons for tagging along were not entirely voyeuristic, as he plans to pursue a career in law enforcement after his NBA career ends.
But Shaq's post NBA law enforcement career might be in jeopardy before it starts. Last month, while working in Bedford County, Virginia as a uniformed reserve sheriff's deputy, O'Neal allegedly took part in a botched child porno raid at the Gretna, Virginia home of A.J. Nuckols, a married man with kids. The police raided Nuckols' home, believing that they had the correct IP address for someone selling child porn, but unfortunately for both the police and Mr. Nuckols, they had the wrong IP address--and thus the wrong home and the wrong guy.
Although O'Neal denies that he was at Nuckols' home, the Bedford County Sheriff's Office confirms that he was there. And what happened at Mr. Nuckols' house wasn't too pretty:
Nuckols described being "held at gunpoint, taunted and led into the house," and said the home was ransacked by a "paramilitary search-and-seizure team" that took computers, cameras, DVDs and VHS tapes.
"Men ran at me, dropped into shooting position, double-handed semiautomatic pistols pointed at me, and made me put my hands against my truck."
The raid at Nuckols' Gretna, Va., home "scared beyond description" him and his family.
When asked why they brought Shaq onto its staff, the Bedford Sheriff's Office said that they enlisted him "to be the spokesman and public face of its anti-child pornography and child predator campaign" and because of that, they deputized him last year. So Shaq apparently does offer something to the Sherff's Office, at least in terms of public relations. And, in his defense, it doesn't appear that he was in any way at fault for what happened to Mr. Nuckols and his family (and his home). But should Shaq even be on these missions? Setting aside the potential of him getting hurt, what about him hurting other police officers or innocent victims? Really, what is he doing? Can anyone with a lot of money and fame go on active police duty and raid people's homes?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-10-23 - 10:39:00
Thanks to the publication of a Case Western Law Review symposium, there's a bunch of new stuff this week:Daniel A. Applegate, Comment, The NBA gets a college education: an antitrust and labor analysis of the NBA's minimum age limit, 56 CASE WESTERN RESERVE LAW REVIEW 825 (2006)
Giovanna D'Orazio, Comment, Taking private property to build an urban sports arena: a valid exercise of eminent do-main powers?, 69 ALBANY LAW REVIEW 1135 (2006)
Christopher A. Callanan, Advice for the next Jeremy Bloom: an elite athlete's guide to NCAA amateur regulations, 56 CASE WESTERN RESERVE LAW REVIEW 687 (2006)
Peter A. Carfagna, John Farrell and Mike Hazen, The business of minor league baseball: amateur eligibility rules, 56 CASE WESTERN RESERVE LAW REVIEW 695 (2006)
Lisa K. Levine, Jeremy Bloom v. National Collegiate Athletic Association and the University of Colorado: all sports are created equal; some are just more equal than others, 56 CASE WESTERN RESERVE LAW REVIEW 721 (2006)
Joseph McBurney, Note, To regulate or to prohibit: an analysis of the Internet gambling industry and the need for a decision on the industry's future in the United States, 21 CONNECTICUT JOURNAL OF INTERNATIONAL LAW 337 (2006)
Michael A. McCann & Joseph S. Rosen, Legality of age restrictions in the NBA and the NFL, 56 CASE WESTERN RESERVE LAW REVIEW 731 (2006)
Posted By : Geoffrey Rapp
Sports Law Blog Honored by Fast Company
Message posted on : 2006-10-21 - 00:05:00
On page 41 of its October 2006 issue, Fast Company, a monthly magazine that reports on the technology industry and that was launched in 1995 by Alan Webber and Bill Taylor, two former Harvard Business Review editors, names Sports Law Blog one of the three best sports business blogs. We appreciate this honor and reporter Michael A. Prospero's kind comments about our blog:
Sports Law Blog Who writes it: Four sports-law professors, plus guest contributors
The skinny: With apologies to Warren Zevon, the common threads through all sport today are lawyers and money (less so guns). While focusing on the legalities--such as the implications of a wrongful-dismissal suit brought by a blind ref--this blog intelligently explains the financial impact of off-the-field goings-on.
Our blog has come a long way since Greg wisely started it in 2003 and its progress largely reflects the outstanding comments by you, our readers. We really appreciate you visiting our blog and making comments.
Posted By : Michael McCann
The Russians are coming! The Russians are coming!
Message posted on : 2006-10-20 - 14:40:00
Each month there is a new development regarding the Penguins' signing of Russian phenom, Evgeni Malkin (See my Sept. 18 post and my Aug. 17 post). In the latest development, the Russian team Metallurg Magnitogorsk filed an antitrust lawsuit in U.S. District Court in Manhattan on Thursday against the NHL and the Pittsburgh Penguins. Here are some of the allegations made by the Metallurg according to the press release:
- The signing of Malkin to an NHL contract was a "blatant and deliberate tampering and interference" with the Russian team's existing agreement. The Penguins knew or should have known that Malkin was under contract to a Russian team when they signed him.
- The NHL and the Penguins violated antitrust laws by conspiring in a group boycott and refusing to deal with Russian hockey clubs regarding player transfers. The NHL and its clubs have "decided to play hardball" with Russian hockey clubs to punish them for the Russian Ice Hockey Federation's rejection of a new general agreement governing the transfer of foreign players to the NHL, and that the NHL told its clubs that they were free to sign NHL contracts with Russian hockey players already under contract with Russian hockey clubs if the players secured releases according to Russian labor law.
The first allegation sounds like the Metallurg is asserting a claim of intentional interference with contractual relations against the Penguins, which I previously discussed the merits of in my prior posts.
The antitrust claim, however, is creative. Section 1 of the Sherman Act makes unlawful agreements to restrain trade. When the league enacts a rule or makes a direction, it's deemed an agreement among all of the member clubs for purposes of Section 1. If the press release is accurate that the Metallurg is alleging that the NHL told the clubs they could sign Russian players if the players secured releases, then I don't see a Section 1 antitrust problem because the NHL is essentially saying to the clubs, first make sure that the players are not bound to a contract with another team under Russian law. In other words, there is no agreement to restrain trade. All you really have here are individual NHL teams taking the initiative on their own to negotiate and sign players to contracts.
The Metallurg could also be asserting a Section 2 claim, which makes it unlawful to monopolize or to attempt to monopolize. Section 2 claims are very difficult to establish. Here, the fact that the NHL and the Russian hockey league were unable to reach a transfer agreement is probably not sufficient. Moreover, the Russian hockey league is not a fledgling league trying to compete with the NHL in the U.S. -- it's a well-established league in another huge country that arguably competes with the NHL for Russian players. The fact that the NHL may have more money and is able to draw the top talent doesn't make for an antitrust violation. On the other hand, it could be argued that the NHL has a "natural monopoly" in the U.S. and, therefore, its conduct in dealing with competitors is going to be more heavily scrutinized. But regardless, if the NHL negotiated a transfer agreement in good faith, the Metallurg should definitely lose on Section 2.
Geoff Rapp brought to my attention that there was another lawsuit filed this week, which has not received much press, by the Russian hockey club Lokomotiv Yaroslavl against the NHL, the Calgary Flames and the Edmonton Oilers alleging similar claims involving the signing of Andrei Taratukhin of the Flames and Alexei Mikhnov of the Oilers. So this issue is not going away anytime
soon for the NHL. If the NHL loses on summary judgment, I predict settlement (i.e. transfer agreement)....because, as Gary Roberts put it once, "anytime you put an antitrust lawsuit in front of a jury, it's a crapshoot."
Posted By : Rick Karcher
Give Maggs the Ball
Message posted on : 2006-10-20 - 13:24:00
Jon Fenlon, a 23-year-old Eastern Michigan University student, won't give to Magglio Ordonez (or the Baseball Hall of Fame) the ball Ordonez hit into the stands to clinch the pennant for the Tigers in the ninth inning of Game Four. According to published reports: The day after Fenlon snatched the homer, he told the Detroit Free Press: "I hope Magglio doesn't want it back. I'm not sure what I'll do if that happens." Well, it has happened. Ordonez already gave the Hall of Fame his bat, and he has offered Fenlon one of his bats in exchange for the ball. But Fenlon is between a rock and a hard ball.
"Oh man, I don't know," Fenlon said. "I don't know if I'm ready to give it back. I'll have to think about it."
Although the Hall of Fame wants the ball, they won't pay for it:Brad Horn, communications director for the hall of fame, confirmed that museum officials had requested Ordonez's bat. He said they would take the ball, if it were offered, but they didn't plan to go after it.
"The story is told through both the bat and the ball," Horn said. "We would never want to take the ball from a fan" unless the fan volunteered to hand it over.
The issue of home-run ball ownership is one of the first things that piqued my intellectual interest in sports law; previously, it surfaced in a published decision, Popov v. Hayashi, concerning Barry Bonds's record setting ball, and in a dispute between the Red Sox and Doug Mientkiewicz, which Mike blogged about here. In a piece published on Findlaw's Writ, I argued that ownership of a homerun ball – particularly one of historical significance (and therefore significant value), should rest with the player who batted the ball. The player is the one who has a moral claim to the ball, having through his labor added value to what would otherwise have none. Moreover, awarding a claim to a fan creates dangerous incentives for fans to engage in violent conduct to get their hands on a potentially valuable piece of baseball memorabilia.
Fenlon, of course, is far more sympathetic than either of the litigants in Popov v. Hayashi or late-inning Red Sox replacement Mientkiewicz. A lifelong Tigers fan, he has so far expressed no interest in profiting off the ball; rather, he seems to want to keep the ball for sentiment's sake. Still, I think Maggs has the best moral claim for ownership, and the law should reflect that.
Posted By : Geoffrey Rapp
Tigers Understand the Difference Between the Law and the Spirit of the Law
Message posted on : 2006-10-20 - 12:46:00
Yesterday, Howard Bloom at Sports Business News notes that the pennant-winning Detroit Tigers have been exploiting a rather wide loophole in the State of Michigan and City of Detroit prohibitions on ticket resale. While “scalping� is prohibited both by state law and municipal ordinance, tickets can be resold if the team itself is doing the re-selling. The Tigers, exploiting this loophole, have created a web-based ticket exchange which allows season-ticket holders to sell their playoff / world series tickets above face value. The Tigers claim a 10% fee for the service of matching buyers with sellers. When I checked this morning, tickets could be had for Game 1 of the Series for between $550 and $5500 a ticket. Bloom writes: If you can't use all of your postseason tickets, you can make them available to other Tigers fans with this efficient and easy-to-use service. As a full season ticket holder, you post your available unused tickets and name the price you want for each ticket.
Buyers can view and select the tickets that meet their game, price and seat location needs. The Tigers Ticket Office conducts the transaction from season ticket holder to purchaser to ensure a safe and secure exchange.
All payments are made directly to the Tigers. Tickets are e-mailed to the buyer and they are able to print their tickets at home. If a potential postseason game is not played, the Tigers Ticket Office will refund the purchase to the new ticket buyer. It's that easy!
* * *
The Tigers make it very clear, the rules are very different at the home of the 2006 American League champions -- Season Ticket Holders may charge a price above face value for their tickets. . . .
The obscenity only begins with the Tigers creation of a Ticket Exchange board. Selling tickets above face value is illegal both in the City of Detroit and in the State of Michigan. However the Tigers are working within the bounds of the law because the law doesn't apply to tickets sold by Tigers. World Series tickets are being sold well above face value through eBay, StubHub, Razorgator and all of the usual suspects. However, none of those would be considered legal in Detroit or in Michigan. And the Tigers, and here's the real kicker – collect 10 percent, the Vig, the Juice, their cut of the pie.
The Tigers Ticket Exchange is one perverse example of how the Tigers are leveraging their first World Series appearance in 23 years. . . .
The Tigers may not be doing anything legally wrong, but morally and ethically the Tigers are setting an example that is embarrassing on every possible level to Major League Baseball.
Sports economists have dealt with the policy consequences of scalping in a number of blog posts and articles. Some have argued that legalizing scalping (or, as its proponents might argue, legalizing the resale market for tickets) would increase the supply of tickets and thus lower the price, although the debate continues. And as criminal law students are no doubt aware, criminal statutes (or municipal ordinance) must be interpreted strictly because of their harsh consequences for alleged offenders. This principle of statutory interpretation has been applied before to anti-scalping laws, as Greg noted here.
Still,
there's something about the Tigers Ticket Exchange that strikes me as unfair and leads me to sympathize with Bloom's position. After all, just last year the City of Detroit was insisting it could arrest people for selling or buying tickets at or below face value. That law was struck down as unconstitutional; still, the idea that the same city that thought it was okay to lock someone up for buying a ticket on the street below face value would create an exception big enough for a fleet of Little Caesar's delivery trucks to drive through seems to be just another piece of evidence of the power of well-heeled special interests in municipal affairs. Two dozen people have been arrested in Detroit for scalping since the playoffs began. Yet the Tigers will collect $550 on that $5500 ticket. Fair?
Posted By : Geoffrey Rapp
FBI: Terrorism Threat Against NFL is a Hoax
Message posted on : 2006-10-19 - 20:40:00
The FBI announced this evening that the purported terrorist threat against NFL stadiums is a hoax (Todd Zeranski and Robert Schmidt, "NFL Football Stadium Terrorism Bomb Threat Is a Hoax, FBI Says," Bloomberg News, 10/19/2006). Earlier in the week, the Department of Homeland Security had warned of a threat against NFL stadiums involving an al-Qaeda operative smuggling radioactive materials into the U.S. from Mexico. While the story seemed a little bit "24ish" it obviously presented a serious concern.
In my recent article in the Willamette Law Review entitled "Social Psychology, Calamities, and Sports Law," I examine the law and social psychology of terrorist threats against the NFL. For instance, I study the effects of major sports events like NFL games being “soft targets� or those particularly vulnerable and difficult to secure. Indeed, NFL games tend to feature large numbers of persons constantly entering and exiting a confined facility, as well as significant and often congested movement of persons within that facility. Less obviously, patrons at NFL games, like in other pro sports ettings, tend to be highly-focused on the game rather than on their surroundings, and are thus less likely to detect wrongdoing and nefariousness than in other settings, such as in airports or subways.
Making matters worse, stadium security personnel are disadvantaged by the situational pressure of impatient fans seeking to enter the stadium, as well as by the practical necessity of preventing long and slow-moving entrance lines. Stadium security personnel also seldom possess sufficient anti-terrorist training, and are thus especially vulnerable to the “situation� of large numbers of fans anxiously waiting to enter the stadium (which may present a secondary target: all of the people waiting outside the stadium). Put more bluntly, NFL games, like those in the other pro leagues, often entail tens of thousands of distracted persons moving in and around difficult-to-secure areas that are protected by questionably-trained personnel.
I also explore the financial considerations of a terrorist strike on an NFL game. Aside from inflicting untold human suffering (both from the attack itself and the "after-effects" of an attack, such as people being trampled while fleeing the stadium and the lack of available hospital beds), an attack could impose massive tort liability on the NFL, the hosting NFL team, and stadium operators for inadequate security. And perhaps not surprisingly, the cost of property and liability insurance for all professional sports teams and related actors has skyrocketed in recent years.
As Geoff (8/4/2006) and Greg (10/26/2005) have discussed, and as I also detail in my article, the NFL has attempted to employ a pat-down policy, which has drawn the ire of state and federal courts in Florida, both for its invasiveness and its apparent lack of efficacy. It will be interesting to see how leagues and teams develop stadium security policies that stop both domestic crimes and terrorist acts, while preserving patrons' constitutional and historical protections.
Posted By : Michael McCann
Extreme Murder
Message posted on : 2006-10-19 - 12:17:00
I apologize for minimal posts this week, but work has gotten hectic. I want to point the readers to a fascinating story, though. . .
"Extreme" sports have become wildly popular in the last decade. But before Tony Hawk, Shaun White, Travis Pastrana, et. al., we had Mickey Thompson and Mike Goodwin.
UPDATE: And not to be outdone. . .
Posted By : John Powers
Wallet-Seeking Lyons Signed an Agreement Not to "Mess Up" on Air
Message posted on : 2006-10-19 - 11:52:00
On Sunday, Mike provided an excellent analysis of broadcaster Steve Lyon's odd and, in some minds, insensitive on-air remarks. Now, it turns out that Lyons signed some type of contract with Fox after a 2004 incident in which made comments about Shawn Green perceived as anti-Semitic. The LA Times relates Lyons's characterization of the agreement: "It said, 'If I mess up again, they can fire me,' " Lyons said. "But it's what they deem a mess-up-able offense."
I doubt very much that Fox used the term "mess up" in the contract. However, Lyons appears to be positioning himself to claim that his "wallet" comment did not breach the agreement (probably some express waiver of a right to sue in the event of a termination). The Times continues:Lyons, who was fired even though his contract was due to expire at the end of the season, strongly believes that what he said last Friday during Game 3 of the American League Championship Series does not fall under that category.
The most telling fact here may be that his contract was set to expire at the end of the season. That being the case, he'd have a relatively small amount of damages even if he had a valid cause of action.
Posted By : Geoffrey Rapp
Online Gaming
Message posted on : 2006-10-17 - 15:35:00
Whether or not it is a sport is debatable, but poker (and other gambling activities) has been severely affected by the Unlawful Internet Gaming Enforcement Act. See WaPo article here. Espn and FSN televise poker tournaments on a loop, so let's cede that it's a sport for now. . .
Party Poker has already stopped taking deposits and wagers from American "players," saying as much on their site: "The United States Congress has passed a bill that seeks to prevent you from playing cash poker online. If, as expected, [it's already happened, ed.] that bill is signed into law by President Bush. . .many of your favorite sites will cease taking deposits and wagers from American players and that includes your very favorite--partypoker.com." I am close to a "professional" who made his living playing poker on that site. But no longer, as he is now blocked.
With American players now limited in their access to so much poker, advertising revenues from websites like Party Poker should decrease or even disappear. The same goes for the televised tournaments since interest will wane.
I posit that there is a way around the law for these athletes, however. The law is geared toward preventing financial institutions from processing transactions intended to be used for online gaming. Well if one opens up a foreign bank account (the more protective the country's laws the better--Antigua, Cayman Islands), then one's domestic bank would not know the money is then being wired into these gambling websites. This is the process required at Tradesports--introduced to me by a law professor of mine--which is a favorite of American traders (and even has predictive value). For now Tradesports seems safe from regulation, but we'll see what happens in 270 days, when the law is implemented.
Update
Posted By : John Powers
George Will on Baseball's Competitive Balance
Message posted on : 2006-10-17 - 06:50:00
Last week, I did a post on baseball's competitive balance and explained that high payroll simply does not equal success. Well, I was delighted to read George Will's Op-Ed column in the Washington Post this past weekend (Baseball's Real 'Golden Age'). George Will is one of my all-time favorite commentators on the business of baseball. I don't think I've ever disagreed with anything he has said about baseball. He makes some excellent points to demonstrate "the steeply declining utility of the last $100 million of payroll" (as he puts it) and that baseball's competitive balance is a diminishing problem:
- There still are revenue and spending disparities between baseball teams that are impossible between NFL and NBA teams because those leagues have salary caps and more centralized revenue sources. Nevertheless, when the Tigers dispatched the Yankees Oct. 7, baseball was guaranteed its seventh different World Series winner in seven years. There never have been seven consecutive Super Bowls, or seven consecutive NBA championships, won by seven different teams.
- Baseball's supposed "golden age" of the 1940s and 1950s was not so golden outside New York. In 1947 the Yankees won the American League pennant and beat the Dodgers in the World Series. In 1949, 1950, 1951, 1952 and 1953 the Yankees were World Series winners over the Dodgers, Phillies, Giants, Dodgers and Dodgers, respectively. If the Phillies had not beaten the Dodgers in the 10th inning of the last game of the 1950 season, every World Series game for five years would have been played in New York. And if 103 wins, which usually are enough to win the pennant, had sufficed in 1954 (the Indians won 111, an American League record for a 154-game season), the Yankees would have won 10 pennants in a row, because they also won in 1955, 1956, 1957 and 1958.
Posted By : Rick Karcher
John Powers: Guest Blogger
Message posted on : 2006-10-17 - 00:55:00
We are excited to have Attorney John M. Powers, Jr. guest blog this week. Like Rick Karcher, John brings pro baseball experience to his analysis of sports law. After being named the Pac-10 Conference All-Southern second baseman while a senior at the University of Arizona, John was drafted by San Diego Padres in the 21st round of the June 1996 MLB Draft. Over the next eight years, John would play in the Padres, Chicago Cubs, and Texas Rangers organizations and was named a Double A All Star in 1998. He also excelled off the field, winning the San Diego Padres Community Service Award for his work with underprivileged youth. Perhaps most impressively, John somehow found the time to obtain a J.D. from the University of San Diego School of Law during his pro baseball career. He last played pro ball in 2003, when he was with the Triple A Oklahoma Redhawks, an affiliate of the Texas Rangers. John now practices real estate law at The Henderson Law Firm in Phoenix, Arizona. We look forward to his posts.
Posted By : Michael McCann
UVA Law School Softball Invitational
Message posted on : 2006-10-16 - 17:27:00
Registration is now open for the University of Virginia's Law School spring softball tournament, which is open to teams from any law school. Information on how to apply can be found here. For the second year, the tournament will feature first-round "pod play." This may help alleviate some former competitors' grumbling that tournament match-ups have historically been arranged in a manner most favorable to UVA's own various softball teams (further enhancing the already significant home-field advantage of playing in Charlottesville, VA).
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-10-16 - 09:39:00
New this week:Joel Eckert, Note, Student-athlete contract rights in the aftermath of Bloom v. NCAA, 59 VANDERBILT LAW REVIEW 905 (2006)
Joshua A. Stein, Comment, Hitting below the belt: Florida's taxation of pay-per-view boxing programming is a content-based violation of the First Amendment, 14 JOURNAL OF LAW AND POLICY 999 (2006)
Posted By : Geoffrey Rapp
Welcome to Big-Time College Sports
Message posted on : 2006-10-15 - 14:34:00
As a member of the faculty at Florida International University, I suppose I have to talk about the brawl that broke out in the third quarter of last night's 35-0 loss to the University of Miami. A pretty detailed account of the story, along with video, can be found here.
Thirteen players (eight from FIU and five from Miami) were ejected. The brawl apparently was the culmination of a great deal of taunting between the teams since pre-game warm-ups. The immediate trigger was Miami's Jamie Bryant catching a touchdown pass to make the score 13-0, then pointing at the FIU bench, earning an unsportsmanlike conduct penalty. The brawl, which last about five minutes, started on the subsequent PAT. The story reports that Miami has suspended eight players. No word on how many FIU players will be suspended. There also were reports of at least one fight in the stands.
One interesting thing is that the story does not seem to have any information from FIU's side (perhaps because Miami is the high-profile party here). But two things jumped out at me. The first is a quotation from a Miami player insisting FIU "totally started" the brawl. The second is a quotation from Miami Coach Larry Coker explaining the chippiness throughout the game by noting that the schools are in the same city and many FIU players want to be playing for Miami. The storyline right now seems to be FIU started it.
Now, I admit to being unsure about FIU's plans to compete in Division I-A football (we play in the mid-major Sun Belt Conference in all other sports). I have a background in college sports--I was a student manager for the men's basketball team at Northwestern; I coached men's basketball at the Division III level for three seasons; and I made sure I was in Pasadena when my beloved Wildcats played in the Rose Bowl in 2006. And I recognize the theory that having successul big-time sports programs (especially football) brings money and attention to the university, benefits that will inure to the university as a whole. The September 9 New Yorker discussed efforts by schools to combine great academics with great athletics, in talking about Duke University and the lacrosse scandal. On the other hand, I also recognize the recent studies suggesting that sports do not bring about those benefits--or do so at a far higher cost.
For obvious reasons, I hope we succeed in the endeavor of playing big-time football and I hope the university realizes the benefit sought. An annual game with Miami is intended to be a step in that direction. Interestingly, stories have referred to it as a "friendly rivalry" (as compared with, for example, UCLA and USC) because FIU is not expected to compete with Miami--although we played it close for about 2 1/2 quarters.
But last night's events illustrate the bitter that might come with the sweet. Someday FIU may be known as a powerful mid-major program or better (how would it be to be Miami of Ohio or Boise State?). Right now, we are an 0-7 program being blamed for a brawl that is being replayed in the national media. And we lost 35-0.
UPDATE: Here. Thirty-one players suspended in all--13 from Miami, 18 from FIU, many of them starters. And FIU has to play at Alabama next
week.
Posted By : Howard Wasserman
Psycho Firing? Making Sense of Steve Lyons' "Insensitive" Remarks
Message posted on : 2006-10-15 - 13:10:00
Fox Sports baseball broadcaster Steve Lyons was fired immediately after Game 3 of the Oakland Athletics and Detroit Tigers ALCS for making what Fox deemed "inappropriate comments" during the game. The 46-year-old Lyons, a first round pick of the Boston Red Sox back in 1981 who went on to a nine-year MLB career as a utility player, made the objectionable comments during the following exchange, as recounted by Chris De Loduca of the Chicago Sun-Times:
During Game 3 between the Oakland Athletics and Detroit Tigers, Lou Piniella compared the production from A's infielder Marco Scutaro to finding a wallet. Piniella later said the A's needed slugger Frank Thomas to get ''en fuego'' (on fire in Spanish) because he had been ''frio'' (cold). Lyons said Piniella was ''hablaing espanol'' -- butchering the conjugation for the Spanish word ''to speak'' -- then said, ''I still can't find my wallet. ... I don't understand him, and I don't want to sit too close to him now.''
I think going through each line might help assess whether Lyons indeed made racially-insensitive comments.
1) First we have 63-year old Lou Piniella, who is working the series for Fox and will likely take a big league managing job soon, comparing Marco Scutaro's production (or lack there-of) to the luck of finding a wallet.
Interpretation: Piniella seemed to be saying that the A's getting production from Scutaro, a native Venezuelan with a lifetime MLB batting average of .258 and very little power, was as unlikely to happen as someone finding a wallet. Was Scutaro's ethnicity somehow related to Piniella's "finding a wallet" analogy? I doubt it, but perhaps Piniella should have used some other vehicle to make the point; racist or not, the "finding a wallet" expression isn't often used, and I suspect many of those listening found it a little odd.
2) Piniella then states that the A's needed Frank Thomas to get ''en fuego'' (on fire in Spanish) because he had been ''frio'' (cold).
Interpretation: Like many sportscasters, Piniella was using Spanish expressions to describe player performance. "En fuego" is regularly used to describe players playing so well that they are "on fire." Indeed, ESPN's
Dan Patrick and
Chris Berman have both made it a common expression in their on-air lexicon. "Frio" appears less commonly employed, perhaps because it's not all that endearing--the player is "cold" or in a slump--and sportscasters usually avoid critique in order to preserve good relationships with players. I don't see the racist angle here, but if it's there, Piniella, rather than Lyons, said it.
3) Lyons then enters the conversation by stating that Piniella was "hablaing español."
Interpretation: Lyons was attempting to say, in some form of Spanish, that Piniella was "speaking Spanish," but he, like many middle schoolers, high schoolers, and college students trying to learn Spanish and perhaps even like
our supposedly but not quite "bilingual" President, messed up the verb conjugation of the verb "hablar" which means "to speak." To be correct, I believe Lyons should have said, "hablando español.� So it would seem that Lyons knew the correct verb--"hablar"--but didn't know how to conjugate it, so he added an "ing."
Should Lyons have refrained from using hablar without knowing how to conjugate it? Yes, because he sounded idiotic with millions of people listening. But was it insensitive? That's a harder call. I suppose you could say that Lyons, by adding "ing," was implying that he didn't need to know the correct Spanish, since he felt comfortable incorporating an English suffix into a Spanish verb, and we live in an English-speaking country that has become less and less tolerant of those who only speak Spanish or any non-English language. This is sort of the “
American Idiot� explanation, with Lyons as the intolerant American. Alternatively, maybe Lyons was just was being a dope, trying in humor to follow Piniella's lead by using Spanish, and had no racist/ethnic-phobic intent or even implicit attitude.
4) Lyons then says that "I still can't find my wallet. ... I don't understand him, and I don't want to sit too close to him now.''
Interpretation: By saying "I still can't find my wallet," Lyons may have been referring to the fact that he was a lousy hitter when he played in the big leagues from 1985 to 1993. A career .252 hitter with little pop, Lyons was better known for his on-field antics, such as when he dropped his pants at first base, or his penchant for the hidden ball trick. I guess you could say that he was a "throwback" of sorts, but I'm not sure which time in history that was. But in any event, Lyons was basically a goofy player--hence his nickname, "Psycho"--who couldn't hit, yet was affable and well liked by fans and teammates. Alternatively, Lyons may have simply been joking that Piniella had stolen his wallet.
The "I don't understand him," remark could suggest that Lyons realized, correctly so, that he didn't have a good grasp of the Spanish language. Or it could mean that he didn't understand Piniella's somewhat obscure wallet analogy.
The "I don't want to sit too close to him now," appeared to be a joke by Lyons of his co-broadcaster Piniella's use of the wallet analogy.
Conclusion: Lyons appeared to sound more stupid/goofy than racist, and I think his remarks were largely brought on by Piniella's weird remarks. Having said that, Lyons has
gotten himself into trouble in the past with his on-air comments. A couple of weeks ago, he regrettably said that a visually-impaired fan wearing special glasses has "got a digital camera stuck to his face," and two years ago, he was suspended for criticizing outfielder Shawn Green, who is Jewish, for sitting out a game on Yom Kippur. Lyons said: "He's not even a practicing Jew. He didn't marry a Jewish girl. And from what I understand, he never had a bar mitzvah, which is unfortunate because he doesn't get the money." But I'm not sure those two incidents make him more
"guilty" in this instance.
Could Lyons sue Fox for wrongful discharge? I imagine he had a contract with Fox, rather than being an at-will employee, so without seeing the contract, it's not clear how much discretion Fox had in terminating him. However, absent express provisions to the contrary, a court would likely accord significant latitude to Fox in policing its on-air content.
Update: for another take on this story, see Paul Secunda's
thoughtful post on Workplace Prof Blog.
Posted By : Michael McCann
A Proposal to Unions: The Agent Business May Require Systemic Change
Message posted on : 2006-10-14 - 07:40:00
For anyone interested, I just posted on SSRN my recent article published in the Willamette Law Review, Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players. You can access it by clicking on the link to my articles posted on the blog. You will need a free SSRN account to read it, and you can get such an account here.
My article examines how the economics of the player representation business, with increasing player salaries under a commission-based agent fee system, are fueling more intense competition among agents, which is detrimental to the players, the teams and the leagues. I argue that players associations, as the exclusive representatives of the players under the labor laws, must consider whether the third party agent representation system serves the best interest of the players collectively, and whether the system can be improved for the betterment of all union members, not just a handful of premier players. I propose that the players associations establish internal player management agencies giving players the option to retain a full-time salaried agent employed by the union. I also propose some revisions to the unions' existing agent regulations, including an alternative agent fee structure, a complete ban on client solicitation, and more union administration and oversight in the agent selection and representation process, which would substantially reduce the incentive for agents to engage in harmful competition and would ensure that players are paying their agents a reasonable fee but would at the same time maintain the player's autonomy in selecting his own agent.
I understand that the concept of unions representing players seems unrealistic and difficult to do from an administration standpoint, conflicts of interest, etc., and my article discusses these issues in-depth.
Posted By : Rick Karcher
Death of an unsung supporter of the First Amendment
Message posted on : 2006-10-13 - 18:07:00
Earlier in the week I blogged about Tommie Smith and John Carlos as one of the most-famous examples of athletes' political speech. This week's Sports Illustrated reports on the death of Peter Norman, the Australian sprinter who won the silver medal in that race and shared the medal stand with Carlos and Smith in the famous photo. (See at left). A fuller story on Norman (and on the Carlos/Smith protest) is available here.
According to the blurb in SI, Norman supported the protest by wearing a human-rights button during the ceremony. Also, it apparently was Norman's idea that Carlos and Smith each wear one glove. Carlos had forgotten his gloves, so Norman suggested that each wear one of his gloves, on different hands. Norman was reprimanded by Australian sports authorities, although not as severely punished or ostracized as Carlos and Smith.
Norman appeared with Carlos and Smith in 2005 at a ceremony at San Jose State University, where a statue of the two American sprinters was unveiled.
Posted By : Howard Wasserman
Do New NHL Sticks Threaten Workplace Safety?
Message posted on : 2006-10-13 - 16:08:00
In an effort to boost goal scoring, the National Hockey League has decided to increase the allowable curvature of sticks from a half-inch to three quarters of an inch. The new sticks will enable players to better aim their shots, and will mimic the stick curvature rule in Europe's International Ice Hockey Federation, an important NHL consideration in light of the increasing number of NHL players from Europe. Moreover, while the NHL enjoyed something of a renaissance last season--scoring and attendance were up from pre-lockout figures and the game was faster and more interesting (unless you were a Boston Bruins fan!)--television ratings, which may be the most crucial metric for evaluating a league's success, went "from bad to worse." Along those lines, the NHL apparently believes that TV ratings will improve with more goal scoring (even though scoring went up last year and TV ratings went down), so they are allowing increased stick curvature.
Michael Farber of Sports Illustrated, however, speculates that while 3/4 curved sticks might enhancing scoring, they will likely increase eye and facial injuries ("Rising Concern," Sept. 20, 2006):
"The perception of the bigger curves might change when a rising shot clips a visor-less defenseman's eye and changes that player's perception permanently."
Despite Farber's concern, the National Hockey League Players' Association supports this new rule. As Farber details, the NHLPA's position is consistent with its laisez-faire approach to player safety, such as by not advocating that players wear visors and other forms of facial protection. Indeed, the NHL and NHLPA largely allow players to play as they desire, even when doing so may impose significant safety risks on themselves and other players. And even when they regulate player safety, they often don't impose deterring sanctions. For instance, if a player's stick exceeds the allowable curvature, he is only assed a two-minute penalty (as opposed to a baseball player being suspended for a corked bat, if that is a fair analogy). Other hockey experts corroborate this broader concern. For instance, Eric McErlain of Off Wing Opinion recently wrote,
One of the little known secrets of the NHL, is the fact that players regularly make modifications to their equipment for the sake of comfort and convenience -- modifications that often come at the expense of safety. Virtually all of the players in the league shave protective padding from the inside of their helmets for the sake of comfort. In addition, the protective ear flap that is standard equipment on a hockey helmet available at your local sporting goods store is removed in order to improve the player's hearing. And of course, it's pretty much common knowledge that protective visors that are mandatory at all levels of amateur ice hockey are discarded once players make it to the NHL.
Similarly, as McErlain discusses today, the NHL has just voted to ban mirrored visors (most famously worn by
Washington Capitals' star Alexander Ovechkin) because they allegedly supply wearing players with a "competitive advantage." This type of move may further corroborate the contention that the NHL is concerned more about product success than product safety.
Having said that, do we even know if the new sticks are more dangerous? I know they are used
in Europe, but Farber doesn't cite injury statistics from Europe. And even if there more eye and facial injuries in the European leagues, couldn't there be other variables (e.g., rink dimensions; comparative style of play etc.) that might also prove explanatory? Moreover, back in the days of Bobby Orr, the NHL allowed sticks curved up to 1.5 inches--were there more injuries because of that? In other words, there seems to be potential empirical data that Farber could use to corroborate his allegation, and it would be helpful if he employed it.
Here's another thought: If the NHLPA genuinely represents the will of the players, should we even question its decision to value "style" over "safety"? Or might the NHLPA be under-appreciating importance of player safety? Is this a case of both collective bargaining units ignoring player/employee safety and perhaps even morality for the sake of profits?
Posted By : Michael McCann
Are Sports Different?
Message posted on : 2006-10-13 - 06:48:00
Governor Arnold Schwarzenegger last month signed into law California Assembly Bill 2165, which prohibits athletes from competing for any schools in the state college systems (UC, CSU, and Community College) if they have been convicted of certain violent felonies, unless and until they have completed their sentences. The impetus behind the law, described here, was a 2004 beating of a San Diego State student by three football players from Grossmont College (a nearby junior college); the players pled guilty in May 2005, but remained on the team until October 2005, when they were sentenced to jail time. In signing the bill, Schwarzenegger spoke of it being a privilege, not a right, to play a college sport, so a felony conviction deprives you of the privilege until you serve the time.
The problem is that everything about college is a privilege rather than a right. It arguably is a privilege simply to be admitted as a student and to be able to attend classes. It is a privilege to engage in many extra-curricular activities--playing in the band, playing intramurals, joining a fraternity or other student organization, acting in a school production, living in student housing.
But we do not attach similar conditions to any of these privileges, at least by law, only to sports. Why not?
I imagine that the answer to this basic question, and thus the explanation for this issue, lies in the fact that I am writing on something called "Sports Law Blog," but not something called "Fraternity Law Blog" or "Marching Band Law Blog" or "Chemistry 101 Law Blog." Sports are higher-profile (even at a junior college) and players are seen to "represent" the school. But so does the marching band and, in fact, so does the student body as a whole. Is it any more troubling that one of the school's football players continues to play after pleaing guilty to assault than that the president of Lambda-Lambda-Lambda or the vice president of the Student Government continue to serve after pleading guilty to the same crime?
If we are serious about wanting to deter misconduct by students (as the Governator said in signig the law), why stop with athletes?
Posted By : Howard Wasserman
Referees, Judges, Mistakes, and Do-Overs
Message posted on : 2006-10-12 - 13:04:00
I have been fascinated by the reaction to the officiating errors in last month's Oklahoma-Oregon game. The refs blew two calls late in the game that helped lead to Oregon's win--1)Allowing Oregon's recovery of its onside kick that did not travel ten yards (and the replay official failed to overturn the call, although it showed pretty clearly on the replay); 2) On the same possssion, calling pass interference on Oklahoma on a pass that was tipped at the line of scrimmage.
Two things came out of the controversy. First, the Pac-10 suspended the officiating crew for one week and the replay official (a veteran official who received death threats -- not protected expression, by the way--from Oklahoma fans) took a leave for the remainder of the season. Second, Oklahoma's President argued that the game should not count as a loss for his team, because of the officiating mistakes.
I think both of these tell us things about judges and the judicial system.
As to the first, this is why there is so much debate of late about "judicial independence." And this is why the Constitution provides federal judges with tenure during "good behaviour" (which, in practice, means life tenure) and a guaranteed salary. The idea is that judges should not be sanctioned for making what they believe in good faith to be the proper decision in particular cases. Even if the judge was, in some objective sense, "wrong" (which is more determinate in sports than in law). We do not want the specter of punishment hanging over officials' heads. Mistakes happen. But we want them to continue to make their best, most fearless decisions without concern for personal consequences if they are wrong. That only makes judges hesitant--and more likely to err.
But the Pac-10 did what many leagues and conferences are doing more frequently. The office, having had two days to review a video multiple times, can determine that an official's spur-of-the-moment decision was wrong. And, under pressure from fans and teams--who had the chance to review the same video--feel compelled to take some action to show that mistakes will not be tolerated. But I wonder how effective this is in preventing future mistakes.
As to the second, one of the things the judicial system favors is finality--once a case is resolved (through all layers of appeal, etc.) it is over. We will not reopen or let a party out of a final judgment, except in rare circumstances. Rule 60 of the Federal Rules of Civil Procedure sets out limited (and time-bound) grounds for reopening and getting relief from a final judgment. Those grounds do not include that the court "got it wrong." This is especially true where the issue the court got wrong was not the end decision, but an earlier decision (for example, a decision excluding a piece of evidence) leading up to (and perhaps causing) that end result.
But this is what Oklahoma's President is asking for. His argument is that the officials made incorrect decisions on a couple of plays during the game , resulting in his team losing (a result that likely would not have occurred absent those mistakes). Therefore, his team should be relieved from the final judgment and not have it count as a loss. That is not something the judicial system would recognize, at least in the context of a civil action.
Posted By : Howard Wasserman
Managers and Coaches with Law Degrees
Message posted on : 2006-10-11 - 12:52:00
The WSJ Law Blog has a post up on Cardinals manager / FSU Law grad Tony La Russa, which notes that a total of seven J.D.'s have managed baseball teams. Are lawyers-turned-managers more common (or more effective) in baseball than in other sports? Or is the fact that Wikipedia can name seven lawyer-managers merely a feature of the national pasttime's longevity?
Texas Tech football coach Mike Leach is a Pepperdine law grad. And of course the great Vince Lombardi attended law school at night (Fordham, but for only one semester, apparently). Former Missouri basketball coach Quin Snyder was a J.D./MBA (Duke), although it didn't help him avoid allegations of NCAA violations or keep his job. Who else am I missing?
Posted By : Geoffrey Rapp
White Sox Selling Game Start Times
Message posted on : 2006-10-11 - 11:08:00
The New York Times reports that the convenience store company 711 has "purchased" start times for Chicago White Sox home games. The night games in question, which would have begun at 7:05 or 7:35 pm, will now begin at 7:11 pm. Will this trend catch on? For instance, will the emergency assistance number 911, in an effort to prove it's not a joke, purchase some 9:11 pm Monday night football starts? Will the new Bond movie promote itself by buying some 12:07 am (00:07 military time) finishes? Will cities, so often identified in contemporary pop culture by area code, purchase start times (e.g., will Detroit buy a 3:13 pm start time for a day game, New York a 2:12 pm start, etc)? The possibilities are limitless.
I would love to see the contract 711 signed with the White Sox, since there are a number of wrinkles to consider. If a particular game is rain delayed (and starts at 7:45, instead of 7:11), will the store get a make-up? What if a pitcher takes longer warming up and the game, while "starting" at 7:11, doesn't actually get underway until 7:19? Breach of contract?
Posted By : Geoffrey Rapp
Why is Steroid Use Considered Cheating?
Message posted on : 2006-10-10 - 21:22:00
This week Sports Illustrated named its All-Time All-Star Baseball Team. It is based on a poll of 22 baseball experts and features a pretty cool color drawing of the players sitting in the dugout. Notably absent from the team is Barry Bonds; the accompanying story by SI's Tom Verducci explains that "because of how his freakish late-career production has been linked to the use of steroids and other performance-enhancing drugs," Bonds "has numbers that are not to be believed."
But this raises a question:
Why, exactly, is steroid use considered cheating? Obviously it now is, because the rules of Major League Baseball prohibit it. But we regarded it as cheating even if the steroid use occurred prior to the MLB ban in late 2002 (that is, before steroids were prohibited by rule). And MLB (and other sports) would not have banned steroids (and fans and media members would not have pushed for a ban) if there were not a sense that steroid use was “wrong� and had to be banned.
But why are steroids bad? And. in turn, why should they be prohibited?
The fallback argument is that steroids and other performance-enhancing drugs afford modern players an unfair advantage over the players who came before them, enabling them to break old records and put up gaudy numbers because they have “help� that old-time players never had. In a sport as history- and number-obsessed as baseball, this is a big deal.
The problem with this argument is that there are so many scientific, medical, nutritional, technical, technological, and health advancements that modern players use to their benefit that old-timers never had. We know more about what players should eat; what nutritional supplements they should take; how they should work out; and how they should take care of their bodies both to remain healthy and to recover from injuries. Surely that allows them to play longer and better. Equipment (baseball gloves, football helmets, basketball shoes) is better-made, bringing both safety and performance benefits.
To say nothing of the medical advances that allow players to return from what used to be career-ending injuries. How many pitchers now have “Tommy John� Surgery or surgery to repair the dreaded torn rotator cuff and come back as good or better than before? Compare that with Mark Fidrych, whose promising career was over in three years because of arm problems. And how should we understand the concept of “performance-enhancing� when it comes to science and medicine? Greg Maddux had laser eye surgery that improved his vision, allowing him to see better on the mound (where he did not wear glasses), presumably with performance benefits. How about Ritalin, which basically functions as speed in a person without the chemical imbalance of ADHD; what could that do for a player on a Sunday afternoon during the Dog Days of August?
So why are steroids, human growth hormone, and other substances not regarded as kindred medico-scientific advances that simply help players recover from injury, remain healthy, and play longer and better? Is there any meaningful difference that justifies the differential treatment? To put it in constitutional law terms: What is the rational basis for banning steroids?
One difference might be that the negative long-term health consequences associated with steroids—enlarged head, shrunken testicles, and ‘�roid rage� for starters, plus unknowns down the line (stories of a cancer link abound, although I am not aware of any scientific evidence)—outweigh any benefits for players. The question then becomes why players should not be allowed to balance whether the performance benefits outweigh the health risks and to choose what they believe is best for them. Perhaps many professional athletes are competitive enough to sacrifice long-term health for something that
will help them achieve greatness right now. This is a micro-version of the broader societal debate over governmental paternalism.
Is that the explanation? And is that sufficient justification for a ban? Or is something else going on?
Posted By : Howard Wasserman
Did the Mountain West Conference Bungle its TV Deal?
Message posted on : 2006-10-10 - 21:10:00
Conglomerate Blog's Gordon Smith, a Wisconsin law professor and BYU fan, thinks so.
Posted By : Geoffrey Rapp
Hate Speech as Cheering Speech
Message posted on : 2006-10-10 - 13:56:00
Alert Reader Will Li points me to this article in The Sun containing this picture that is worth 1000 words. Anyone else see the irony in this occurring at a "friendly?"
So is this constitutionally protected "cheering speech" or something different? According to the story, Croatia could be kicked out of the 2008 European soccer tournament if their fans (who have a history of presenting racist taunts and symbols in the stands) continue to pull stunts like this one.
But the law of the European Union is far more restrictive on the display of racist symbols, especially swastikas (given European history) than is the law under the First Amendment.
In general, racist symbols are constitutionally protected under the First Amendment--remember that Nazis can parade through the streets of a largely Jewish suburb waving swastika banners--unless and until they cross the lines into direct "true threats" (words placing the listener in fear of imminent physical harm) or targeted "fighting words" (words that, by their very nature, would provoke a reasonable person to respond with immediate physical violence). For that to happen, however, expression must be directed at or addressed to a particular person or persons, usually in some close-up, face-to-face, confrontational exchange. Otherwise, it simply is symbolic expression that causes anger, offense, or even intimidation--but a listener's anger or offense is not a basis for restricting speech.
It is hard to tell from the photo, but it looks like these fans are pretty far from the action and pretty far from other fans, making it unlikely there is any face-to-face, directed encounter going on. In my article on the subject, I offered the hypothetical of a KKK protest at Shea Stadium during Jackie Robinson Day, featuring Confederate flags and signs remembering the "good old days" of segregated baseball. Offensive as that might be, I think that would be protected, especially in the political context of a day to honor Jackie Robinson. It seems to me the swastika is a difference in degree--it is more offensive, more intimidating--not in kind.
Much of my argument regarding speech at sporting events turns on the notion that the rules governing expression in the stands should be no different than expression occurring in any other expressive forum. So if this symbol would be protected on a stree parade, it is protected at a soccer (nee, football) match.
Posted By : Howard Wasserman
Sport and Speech: The Athletes Speak
Message posted on : 2006-10-10 - 10:08:00
The expression that pervades sport falls into three categories. The most interesting, category is expression by the athletes, both on the field and off. Professional and college athletes possess a unique forum in which to express their views during and through the event itself. And, by virtue of their fame (or notoriety), their messages attract a broad audience. Unfortunately, the public seems to be of two minds when it comes to athletes speaking out.
On one hand, the public occasionally demands that athletes take a stand. Michael Jordan often was criticized for his unwillingness to speak out on political and racial issues, notably when he declined to endorse Harvey Gantt, an African-American Democrat running for United States Senate in North Carolina against Jesse Helms in 1990 (never mind that Jordan at the time lived, and presumably voted, in Illinois). The New York Times was similarly critical of Tiger Woods for failing to speak out against Augusta National's exclusion of women several years ago. In both, the expectation was that, as high-profile and influential minority athletes, each had a special obligation to raise his voice in support of other oppressed minorities.
On the other hand, when athletes do speak out, they often present a message that proves unpopular with much of the public. The unfortunate response to that expression often is something along the lines of “Who does he think he is and why should anyone listen to him just because he can run fast or throw hard?� Or worse, the suggestion is that such expression has no place in sports because sports should be apolitical--although sports clearly are not. This was the response to Boston Red Sox pitcher Curt Schilling, during the locker room celebration following the Sox 2004 World Series victory, when he gave an on-camera endorsement of President George W. Bush, shortly before that year's presidential election. Even Jackie Robinson, someone who take a stand on behalf of racial equality, was criticized for supporting Richard Nixon.
A more visceral response has greeted the several athletes over the years that have declined to participate in pre-game and in-game patriotic rituals. In 1996, NBA star Mahmoud Abdul-Rauf refused to stand on the court during the pre-game Star Spangled Banner and was fined and suspended by the NBA. In 2004, Toni Smith, a senior basketball player at tiny Manhattanville College, drew public attention (and the ire of opposing fans) for turning her back on the flag during the anthem as a protest against the Iraq War. Most recently, baseball player Carlos Delgado refused to stand on the field during the in-game playing of God Bless America. Delgado, who was protesting the war and U.S. bombing exercises off the island of Vieques in his native Puerto Rico, was booed at Yankee Stadium back in 2004. He halted his protest when he went to the New York Mets in 2006. Frequently, the objection that greets such protests (especially when done by well-paid stars such as Abdul-Rauf and Delgado) takes the unhelpful and unfair form of “How dare you protest the country when you are paid so well? If you don't like it, leave.�
One objection to team athletes taking expressive stands within the game is that their individual expression interferes with the “team concept.� Ironically, however, the harshest sanctions have fallen on the individual athletes who took the most-famous expressive stands. First is Muhammed Ali, who was stripped of the world heavyweight championship (back when that title meant something) when he declined military induction. Ali could not get sanctioned to fight by any state within the United States for several years (an action that itself raises some interesting First Amendment issue) until the Supreme
Court of the United States reversed the conviction. Second are Olympic sprinters Tommie Smith and John Carlos, who gave a gloved “Black Power� salute on the medal stand at the 1968 Mexico City Games. Both were kicked out of the Olympic village and permanently suspended from Olympic competition.
An interesting question is how the public would respond to both situations today. We are, I think, more tolerant of unpopular political speech than we were forty years ago. Certainly the scope of the freedom of speech is broader than it was forty years ago, so formal sanctions are less likely against speakers.
And consider the power of hindsight. Ali is widely haled today, in part for the very willingness to take a political stand that made him unpopular 35 years ago. The same for Carlos and Smith, who were honored in the House of Representatives in 2004 for taking “a courageous stand for social justice in one of the most powerful moments in Olympic history.�
Posted By : Howard Wasserman
Introduction and Sports Law as an Academic Discipline
Message posted on : 2006-10-09 - 15:10:00
First, my thanks to Michael for his overly kind introduction and to the Sports Law bloggers for inviting me to do a guest stint this week. I remain fascinated by blogging as a creative outlet for ideas and writing (whether or not one wants to call it legal scholarship).
I do not “do� sports law (to the extent there is such a thing). I do not teach the course at FIU (that honor falls to my friend, colleague, and former guest on this site, Andre Smith). I once described sports law as an academic discipline involving a range of other areas of law—antitrust, labor and employment, business organizations, and contracts, as well as psychology, social psychology, and group dynamics in some of Michael's fascinating work—applied to a particular, unique subject. But since I had no interest in or knowledge of those other areas, I never gravitated towards sports law as a teaching or scholarly discipline.
But I am a sports fan. My c.v. identifies my important personal interests to include the Chicago Cubs and Northwestern Wildcats (detect a common theme there?). My favorite phone message ever came from a federal judge who invited me for a clerkship interview by saying “I see you're a Chicago Cubs fan. I'm a Milwaukee Brewers fan myself, but let's talk anyway.� And I certainly am not alone in the sports-mad society of the United States.
Starting from the sociological and anthropological importance of sport in American society, I have managed to find a way to link sport to the areas of law that I do write about.
One area is free speech. I have recently examined the First Amendment rights of fans to engage in what I call “cheering speech� at games (which includes cheering, banner-waving, political protest, and all manner of heckling). I even got to present a paper on the subject at the National Baseball Hall of Fame in Cooperstown (wearing a Cubs jersey and hat, of course). Michael discussed this issue a couple of weeks ago in a post about Boston University's new no-profanity policy at hockey games, a policy I suggest would and should (at a public school, anyway) be unconstitutional. The underlying point is that, given the importance of sports and sporting events in American society, it must follow that speech at and about sports has some degree of importance and is deserving of constitutional protection.
The other area is the judicial process, looking at how sport can illustrate how decisions are made and disputes resolved in the context of a competition. Judges in the American judicial system frequently are likened to “umpires,� most recently by Chief Justice John Roberts in his 2005 Senate confirmation hearings. We should examine the analogy to see how accurate it is. Some have called this the “law of sports�—the law that governs the games we play. That law can tell us things about the law of society.
So, those are some of the things I hope to talk about in the coming week, along with any new stories and issues that arise during this week. And I hope to hear some ideas and comments that might help me in future projects.
Posted By : Howard Wasserman
Howard Wasserman: Guest Blogger
Message posted on : 2006-10-09 - 13:38:00
We are thrilled to have Professor Howard Wasserman of Florida International University College of Law guest blogging this week. Howard is a nationally-recognized expert on the intersection between the First Amendment and sports law (among many other topics), and he recently published Fans, Free Expression, and the Wide World of Sports, 67 University of Pittsburgh Law Review 525 (2006). We look forward to his posts.
Posted By : Michael McCann
New Book on Curt Flood's Battle for Free Agency
Message posted on : 2006-10-09 - 11:58:00
Via Above the Law, I've learned of a new book on the Curt Flood saga by Yale-trained lawyer Brad Syder, entitled A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports. According to the New York Times:The author of “Beyond the Shadow of the Senators: The Untold Story of the Homestead Grays and the Integration of Baseball,� Snyder is a sure-handed and meticulous guide. He knows baseball and writes about the law engagingly and clearly, without ever flaunting his Yale law degree. . . .
Snyder can also be pitiless, perhaps excessively so, but then some of the characters in this story earn his ridicule: Kuhn, a man who pulled off the neat sartorial trick of being at once a stuffed shirt and an empty suit; Goldberg, another legendarily pompous man who gave what even his co-counsel said was one of the worst oral arguments he'd ever heard; and Blackmun, an insecure and ineffectual tenderfoot before joining the liberal legion of superheroes.
At the same time, Snyder is too easy on those he most admires. That includes Marvin Miller, whom Snyder thanks twice in the acknowledgments, once for reading the manuscript. Even more than Flood, Miller deserves to be in Cooperstown. But it was Miller who took a vulnerable and deeply troubled man, used him, then — even by Snyder's own admiring account — seemingly did nothing for him as his life fell apart, like helping him dry out or lending him money or buying him some new teeth or giving him a job. Only as Flood neared death did the Players Association deign to help him. “Miller's admiration for Flood ran deep,� Snyder writes. Big deal. For the last four or five years of Flood's life, Miller never even saw the guy.
And the book is too easy on Flood. Repeatedly, and in ever loftier rhetoric, Snyder insists Flood sacrificed his career for the lawsuit. That's really not right: as a futile comeback attempt proved, Flood was largely spent when he went to court, and wanted little of baseball once he left it. Given his other sacrifices, there's no need for such hype.
Generations of ballplayers — Curt Flood's children — have never honored him properly. But with his fine book, Brad Snyder surely has.
Posted By : Geoffrey Rapp
Again This Year, High Payroll Does Not Equal Success
Message posted on : 2006-10-09 - 06:20:00
At the beginning of the baseball playoffs last year, I compared the payrolls of all MLB teams to see what kind of impact payroll disparity in major league baseball had on overall team performance, and posted the results. Not surprisingly, my report showed that high payroll did not equal success. I decided to do another report this year, so I guess that means I can now officially call this my "Annual MLB Salary Report Card".
The most important category on the report card last year in terms of measuring general manager performance and sound organizational business decisions was the "Spent What Was Necessary" category listing all the teams that made the playoffs last season without breaking the bank: White Sox ($75M), Angels ($98M), Braves ($86M), Cards ($92M), Astros ($77M) and Padres ($63M). Now here's the irony. This season, 4 of these 6 teams actually spent more on payroll this year and did NOT make the playoffs: White Sox ($102M, and 4th highest payroll), Angels ($103M, and 3rd highest payroll), Braves ($90M), and Astros ($92M). Interestingly, St. Louis actually spent less this year ($88M) and DID make the playoffs again, and San Diego, with the lowest payroll of the entire group at $69M, made the playoffs again as well. [See USA Today's Salary Database, 2006 Total Payroll.]
Looking at the other teams making the playoffs this year in addition to St. Louis and San Diego, the Mets spent the same this year ($101M) and made a complete turnaround from last year. The Dodgers spent $15M more this year ($98M) and it paid off for them. The Yankees spent $15M less this year and still made it with a $194M payroll, but got ousted by Detroit who spent their $82M very wisely this year. Oakland ($62M) and Minnesota ($63M) each won their respective divisions this year -- As usual, Beane and Ryan got it all figured out. Whatever those two guys are making, it's just simply not enough. Boston, with the supposed "boy wonder" in charge and the 2nd highest payroll of $120M, can thank Minnesota (who spent half as much as them) and Detroit (who spent about $40M less than them) for not making it this year.
The MVGM award this year has to go to Billy Beane, whose $62M payroll has found its way in the ALCS against Detroit. Hats off to Florida Marlins GM Larry Beinfest, who pulled off a fairly respectable 78-84 record with just a $15M payroll and a roster made up of primarily young minimum salary players. But gosh, who knows what they might have accomplished by just spending another $15M? -- and they still would have maintained the lowest payroll!
Here's an interesting statistic. There are 12 teams that spent between $60M and $89M, and 5 of them (42%) made the playoffs (and as of this date three of them are still in it). There are 10 teams that spent more than $89M, and only 3 of them (30%) made the playoffs (but only one of them is still in it).
Salary caps? Who needs 'em......
Posted By : Rick Karcher
Should the Colts Pay Corey Simon's Salary?
Message posted on : 2006-10-09 - 00:51:00
Posted By : Michael McCann
George Mitchell and the Competing Roles of Internal Investigations and Criminal Prosecutions
Message posted on : 2006-10-08 - 17:15:00
Charles Pierce of the Boston Globe has a very interesting and lengthy (- 4,000 words) piece today on former U.S. Senator George Mitchell, who was Senate Majority Leader from 1989 to 1995 and who MLB Commissioner Bud Selig recently tapped to head an internal MLB investigation into past steroid use by MLB players ("Does George Mitchell have the Juice?," 10/8/2006). Pierce supplies an engaging biographical survey of Mitchell, including background on his role in the Iran-Contra Senate hearings, his work in helping to broker a peace accord in Northern Ireland, his investigation into corruption at the 2002 Olympic Games, his experience as a private attorney in both Maine and Washington D.C., and his current role with the Boston Red Sox as team director. No matter what you think of his politics, the 73-year-old Mitchell has lived an extraordinary life, especially when considering his humble origins--his father was a day laborer and his mother was textile worker who had emigrated from Lebanon, and Mitchell paid his own way through Bowdoin College and Georgetown University Law Center.
But as Pierce notes, Mitchell's current challenge--figuring out which players used steroids and how they obtained them--might prove to be his toughest, at least in terms of demanding results. As Pierce details, Mitchell's investigation appears to be having difficulty gathering information: criminal prosecutions of baseball players, and the threat of those prosecutions, have discouraged players from speaking with Mitchell out of fear that such information could be shared with federal investigators. This dynamic supplies what I think is an interesting interplay between internal investigations and criminal investigations, both of which seek the same information, but the success of the former may depend on the absence of the latter.
Our blog has plenty of good past coverage on steroids and MLB and Mitchell's investigation, but be sure to check out Charlie Pierce's excellent story as well.
Note: pictured above, from left to right, Michael Dukakis (Massachusetts Governor from 1975-79 and 1983-1991 and Democratic Presidential nominee in 1988), Mitchell, and Larry Lucchino (president and C.E.O of the Boston Red Sox). A picture of Ted Williams rests behind them.
Posted By : Michael McCann
Wrong Name, Wrong Time: Is Bobcats' Owner Robert Johnson Being Profiled by Airport Security?
Message posted on : 2006-10-07 - 12:16:00
Steve Kroft of 60 Minutes has obtained the secret list of names used by the Transportation Security Administration (TSA) to screen airline passengers for terrorists. It includes such highly-common names as "Gary Smith," "John Williams," and "Robert Johnson." People with these names are much more likely to be stopped and searched, and are much more likely to undergo strip searches, before boarding airplanes in American airports. For instance, Kroft "talked to 12 people with the name Robert Johnson, all of whom are detained almost every time they fly. The detentions can include strip searches and long delays in their travels."
Why is this name-profiling happening?
"Well, Robert Johnson will never get off the list," says Donna Bucella, who oversaw the creation of the list and has headed up the FBI's Terrorist Screening Center since 2003. She regrets the trouble they experience, but chalks it up to the price of security in the post-9/11 world. "They're going to be inconvenienced every time … because they do have the name of a person who's a known or suspected terrorist," says Bucella.
When I saw that the name "Gary Smith" was included, it struck me that I've known a number of Gary Smiths in my life. Gary Smith was a science teacher at my high school. Gary Smith was also a college classmate. And Gary Smith worked with me in one of my jobs. They were different Gary Smiths, of course, and none, as far as I could tell, was a terrorist. And I suspect the same can be said of the thousands of Americans who have that name. In fact, Yahoo! People Search indicates that there are 4,921 people with that name, which obviously doesn't include all of the Gary Smiths out there.
The name "Robert Johnson" also caught my eye, because it is the name of the Charlotte Bobcats' majority owner. I have not read anything about Johnson, the first African-American to become the majority owner of an NBA, NFL, NHL, or MLB team, commenting on his experience as an airline passenger, but he probably hasn't enjoyed it very much. He probably also hasn't enjoyed watching his team lose 56 games last season and 64 games two seasons ago, but while new co-owner Michael Jordan might be able to fix that, even Air Jordan can't control the real skies above.
Posted By : Michael McCann
Justice Denied: Abuse Charges Against Brett Myers Dropped
Message posted on : 2006-10-06 - 13:08:00
Massachusetts state court Judge Raymond Dougan, Jr., ruled yesterday that Philadelphia Phillies pitcher Brett Myers will not stand trial for beating up his wife, Kim, outside a Sheraton Hotel in Boston last June (Laurel J. Sweet, "Pitcher's Free Pass Angers Victim Advocates," Boston Herald, Oct. 6, 2006). As you probably recall, the 6'4, 240 pound Myers--a former amateur boxer--allegedly dragged Kim by the hair and repeatedly smacked and punched her in front of a crowded street, only a couple of days before his scheduled start against the Red Sox. Here are excerpts from 9-1-1 calls by two bystanders who watched Kim get beaten up:
"There's a guy like beating up his girlfriend," a woman told Boston's 911 operators during the June 23 incident. "I got a guy smacking a girl around right in front of the Hynes Convention Center. She's crying. She's got no shoes on," a man reported. "He's a pretty big guy... and he's hitting her hard."
During yesterday's pre-trial hearing, Suffolk County District Attorney Daniel Conley argued that Brett Myers should plead guilty, serve two years' probation, attend a 40-week certified program for batterers, and submit to alcohol-abuse evaluation. However, Kim Myers said that she would not testify against her husband, thus eliminating much of the evidence. In fact, she seemed to almost blame herself for what happened:
"I became upset with him and I pushed him away from me. That's when other people saw us disagreeing with each other.�
I suspect some might view Kim's response as consistent with battered wives' syndrome, although without knowing more about her and Brett's marriage and whether there was a history of violence, it's hard to jump to that conclusion. Moreover, I think we can empathize with her current position: she's married and presumably loves her husband, and wants to see if they can make their marriage work. So while her decision to not testify may strike us as unfortunate and potentially regrettable, it is understandable given her situation.
Nevertheless, it's disconcerting that our criminal justice system can't hold Brett Myers accountable in any way, and since his victim won't bring civil and tort claims against him, it appears that he'll suffer no sanction from any court. Even his own employer, the Phillies, found his behavior unworthy of sanction, as they allowed him to start against the Red Sox, and never even bothered to suspended him (he instead took a short--and paid--"leave of absence"). This is an incredibly sad story and one, in my view, suggestive of our need to earnestly revisit how the legal system and employers treat domestic violence.
Posted By : Michael McCann
Is the NCAA's Tax Exempt Status Endangered?
Message posted on : 2006-10-05 - 11:50:00
University of Washington School of Law 2L Martin Bingisser passes along a post by University of Cincinnati law Professor Paul Caron on TaxProf Blog concerning the U.S. House of Representatives' Ways and Means Committee intenstifying investigation into the NCAA's tax-exempt status. Led by Chairman Bill Thomas (R-CA), the Ways and Means Committee is reconsidering whether NCAA's "educational mission" justifies its tax exemption. While we've discussed the NCAA's tax exemption before, a story by Mark Alesia in today's Indianapolis Star sums up the issue and competing arguments really well:
In what amounts to a taxpayer subsidy, the NCAA, conferences and individual athletic programs do not pay taxes because of their tie to education. Donations to athletic programs, including those required for the right to buy premium tickets, are largely or fully tax deductible.
The NCAA budgeted $560 million in revenue for the current academic year. More than 90 percent of that comes from its television and marketing contract with CBS for the Division I men's basketball tournament. (Conferences, not the NCAA, control postseason major college football, because of their historic ties to bowl games.)
The NCAA says 95 percent of its money is returned to individual athletic programs in the form of payments and services. That helps fund the entire athletic department, including its lower-profile sports.
The [Ways and Means] Committee's letter acknowledges that, but says, "To be tax-exempt . . . the activity itself must contribute to the accomplishment of the university's educational purpose (other than through the production of income). How does playing major college football or men's basketball in a highly commercialized, profit-seeking, entertainment environment further the educational purpose of your member institutions?"
But before you think the NCAA is in trouble, consider these remarks by University of Illinois law Professor John Colombo, a tax expert:
Colombo believes the NCAA is in no real danger for two reasons: IRS precedent and the popularity of college sports.
"(The IRS is) going to reverse 40 years of their own precedent?" Colombo said. "And if they do, how will congressmen from Texas and California -- and let's throw Oklahoma in there -- react? It's a political non-starter.
"This is a not-so-subtle warning to the NCAA that its actions have consequences. The message is that Congress could step in and make your life miserable."
I wonder if impending political changes might change the equation here? With the Democratic Party seemingly poised to re-take control of the House of Representatives (especially in light of the apparent cover-up by GOP leaders on the Mark Foley cyber-molestation scandal), it's interesting to think
about how a Democratically-controlled House of Representatives would investigate the NCAA. U.S. Representative Charles (Charlie) Rangel (D-NY), ranking member of the Ways and Means Committee, would likely become the Committee's Chairman, and given his background as a reformer and also someone particularly attune to the racial implications of rules and regulations (such as, perhaps, how the vast majority of college basketball and football players are African-American, how they produce the vast majority of revenue for the NCAA, and how they are denied any of that revenue while also being denied access to pro leagues--a separate, but obviously related issue), it might make for some interesting Congressional hearings in the years ahead.
Update: Check out True Hoop for some thoughts on how changing the tax exempt status of the NCAA could affect basketball development in the U.S.
Posted By : Michael McCann
Welcome to the Blogosphere, Title IX Blog!
Message posted on : 2006-10-05 - 10:31:00
I'd like to welcome the new Title IX Blog to the blogosphere. This blog is a group effort by Erin Buzuvis, a new law professor at the Western New England College of Law, Kristine Newhall, a Women's Studies graduate student, and Western New England law professor Sudha Setty. The blog already has some neat posts up on topics including James Madison University's athletics program cuts, the D.C. Circuit's recent decision affirming dismissal of the College Sports Council's challenge to Title IX's constitutionality, and NCAA policies on paternity leave.
The great thing about new blogs on sports law topics, like the Title IX blog and Jeff Standen's new Sports Law Professor, is that it gives us new folks with whom to engage in (hopefully enlightening or at least entertaining) argument.
Posted By : Geoffrey Rapp
NHLPA Sued in Federal Court by its Members
Message posted on : 2006-10-03 - 22:15:00
Yesterday, a group of dissident members of the NHLPA filed suit in federal court against the NHLPA, executive director Ted Saskin (shown on right), and former members of the NHLPA's executive committee, seeking the removal of Saskin, and also an award of unspecified millions of dollars in damages and punitive damages. ("Disgruntled NHL players ask court to remove union director"). In June 2005, the NHLPA accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Bob Goodenow was dismissed as executive director and the union agreed to pay off his contract. That same day, Saskin was hired as executive director "despite the fact that Saskin was never properly nominated for the position by the executive board" according to the dissident group.
In an attempt to quiet the complaints after Saskin was hired, the union held a secret ballot among player representative executive board members to ratify Saskin's contract as executive director; 28 of 37 eligible ballots had been received and 24 of the 28 confirmed Saskin's position and contract as executive director. The lawsuit further alleges that, "despite express instructions from the executive board that no cap be negotiated, Saskin acting as primary spokesman for the NHLPA, agreed to a collective bargaining agreement containing a system which functions as a hard cap" that was whisked through the board in a conference call with just 12 hours notice and that Saskin and others withheld key information from union members including a side letter containing details of how the cap worked.
Players unions owe their individual members a duty of fair representation (DFR). It is well-established by U.S. Supreme Court precedent that a breach of the DFR occurs only when a union's conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith".
While the press release doesn't disclose the legal claims being asserted by the dissident group, DFR is most likely one of them. The DFR standard is extremely difficult to meet, but DFR claims typically involve a situation in which one member of the union is claiming that the union didn't fairly represent his interests (i.e. by not filing a grievance on his behalf). In this case, there is a fairly large number of members that make up this dissident group (more than 100 according to Chris Chelios) and I think that is a significant factor that could have an influence on a court or jury. Another significant factor, if it can be proved, is that the board allegedly gave express instructions NOT to agree with the league on a salary cap and the union (with Saskin acting as the primary spokesman) went behind their back and agreed to it. The union will most likely argue that whatever was agreed to in the CBA does not single out, or treat differently, any individual member, and therefore it's not arbitrary or discriminatory. Basically, this dissident group must show that the union acted in "bad faith" by agreeing to a system that functions like a hard cap when (and if) the board previously made it clear that they did not want any cap. Federal courts usually retain jurisdiction over DFR claims.
Another claim this dissident group of players could be asserting is an unfair labor charge against the union claiming that the players were denied access to information and the right to vote with respect to both the salary cap issue and the hiring of Saskin as the new executive director. So regarding the cap issue, their argument goes, "we told you we didn't want a cap to begin
with and you still agreed to it, but what's worse is that you didn't even keep us informed, disclose how it would work nor give us an opportunity to approve the details." The success of this claim will essentially depend upon the procedures outlined in the union's constitution and bylaws as it pertains to the disclosure of information, access to information, and voting with respect to collective bargaining issues and the firing/hiring of executive directors. But the NLRB usually has exclusive jurisdiction over these types of claims.
A third claim that is likely being asserted is that the union's hiring of Saskin was ultra vires -- beyond the scope of the union's authority and a breach of the union's constitution and bylaws. The court would have jurisdiction over this claim. But regardless of the legal analysis, it sure looks really bad when 100 plus players are suing their union in federal court. In fact, I don't ever recall this many players suing their union in federal court.
Posted By : Rick Karcher
Legal Implications of the Wonderlic Test
Message posted on : 2006-10-02 - 15:51:00
I just posted on SSRN a working paper: The Wonderlic Test for the NFL Draft: Linking Stereotype Threat and the Law. You will need a free SSRN account to read it, and you can get such an account here. I will be presenting on this paper later this month at Marquette University Law School, specifically at the First Annual Colloquium on Current Scholarship in Labor and Employment Law. Please note: my working paper is very much "working" and I will update it again in a couple of weeks. The paper is actually one part of a law review article that I am writing on the law and social psychology of intellectual and psychological testing of pro athletes, and it is also related to a book project that I am co-authoring with Jon Hanson.
If you get a chance to read the paper, I would greatly appreciate any feedback at mmccann[at]mc.edu. Thanks.
Posted By : Michael McCann
Does it mean anything if Clemens and Pettitte don't sue?
Message posted on : 2006-10-02 - 15:26:00
The multi-sport steroids scandal of 2005-200? has involved a considerable amount of tea-leaf and between-the-lines reading. For instance, journalists (and occasionally bloggers) compare “before� and “after� photos of suspected users to make the case that they are scientifically enhanced. Mark McGwire—though he never admitted steroid use—is presumed guilty based on his pleading what has been called the “fourth and a half amendment� while testifying before Congress. Barry Bonds's decision to sue the authors of Game of Shadows for illegally leaking grand jury testimony signaled to some that Bonds did not want to face a defamation trial where “substantial truth� would constitute a defense. Some have speculated that Lance Armstrong's failure to denounce former teammate Floyd Landis even after Landis was proven a liar signaled that Landis had “the goods� regarding Armstrong's own possible past use.
Yesterday, in the latest twist on L'Affair du Grimsley (see previous posts here, here and here), the New York Times reported the list of names that had earlier been “blacked out� of a report that included statements attributed to caught-red-handed HGHer Jason Grimsley. Among the names were some surprises. Pitchers Andy Pettitte, Roger Clemens, and former MVP Miguel Tejada were named by Grimsley. Pettitte and Clemens immediately denied the allegations; many have rushed to Pettitte's and Clemens's defense, although to some, the pitchers' denials will no doubt ring as hollow as those of Landis or finger-waggerer Rafael Palmeiro.
Clemens has already threatened legal action “if it affects sponsorship of his charitable foundation�; so far, no similar threats from Pettitte or Tejada. But accused steroid users have explored suits before. Now laugable, Rafael Palmeiro made noises about suing Jose Canseco after being accused of steroid use. Marion Jones, the most prominent accused athlete really cleared of steroid use, is also noteworthy for having filed a defamation suit against her accusers (and obtained a presumably favorable settlement). Bo Jackson also filed suit against a newspaper that accused him of steroid use. If Pettitte and Clemens don't sue, is there anything we can safely conclude? That is, could we “read� into a failure to sue the kind of confession we have all read in to McGwire's non-denial?
The answer is no. At first blush the two seem to have an
open-and-shut case for “defamation per se� against Grimsley, assuming Pettitte and Clemens, as they have claimed, never used steroids. A false statement concerning another's capacity to adequately perform at his trade or profession or an allegation of criminal misbehavior involving moral turpitude are both defamation per se – per se in the sense that the plaintiff need not show actual damages (i.e., loss of a job, inability to get into the hall of fame). It is therefore a bit odd that Clemens threatened legal action only if his charitable foundation is threatened, since damage would not be a required element for a defamation per se suit.
The problem for Clemens and Pettitte? First, as public figures, they can only recover for defamation if the defendant had actual “malice� or reckless disregard as to the truth of a statement. In addition, some courts have found an absolute privilege bars defamation suits regarding statements made to law enforcement officers. So, given that their suits are likely losers (not to mention that Grimsley will likely be close to judgment proof after he pays his own legal bills), it will be hard to read much into a decision not to sue.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-10-02 - 10:16:00
New this week (click on the link to access the article):Eric T. Gilson, Exploring the Court of Arbitration for Sport, 98 LAW LIBRARIAN'S JOURNAL 503 (2006)
Posted By : Geoffrey Rapp
Letter to Mr. Stern: Larry Brown's Award Should be All or Nothing
Message posted on : 2006-09-30 - 08:10:00
Dear Mr. Stern:
Yesterday, you arbitrated Larry Brown's dispute over $40 million owed on his contract following his firing by the New York Knicks (see Geoffrey Rapp's previous summary of the legal issues involved in the dispute). Keep in mind that you are serving as an arbitrator, and not as a mediator, of a legal dispute that involves a simple legal question: Did the Knicks terminate Brown for cause? -- however that term is defined in the contract. If the answer is yes, then Brown gets nothing. If the answer is no, then Brown gets $40 million.
A proper legal analysis here does not allow for an in-between award. IF you determine that Brown was terminated without cause, the Knicks will attempt to argue that they have been monetarily damaged as a result of Brown's criticism of players, roadside interviews and attempting to make unauthorized trades, and that the $40 million owed should be offset by the damages flowing therefrom. But the only way the Knicks could possibly be entitled to any damages as a result of these breaches would be if the Knicks asserted claims for these breaches BEFORE terminating Brown. Instead, the Knicks decided to terminate Brown, and, if they did not have the right to do so, they materially breached and are not entitled to any damages.
As precedent, you can rely on the recent Ohio Court of Claims decision involving an analogous situation in which Jim O'Brien was terminated for cause by Ohio State. The court determined that Ohio State did not have the right to terminate O'Brien for cause as defined in the contract as a result of certain NCAA rules violations committed by O'Brien. In determining the damages award, the court awarded O'Brien the full amount that O'Brien was entitled under the terms of the liquidated damages provision in the contract, without any offset whatsoever for damages incurred by Ohio State flowing from the rules violations.
The other option would be to just split the baby somewhere down the middle, which is what a "mediator" would do in attempting to resolve a dispute. Although this is not what you are supposed to do as an arbitrator, this would allow you to consider your own personal interests so that (1) you don't look like you are biased in favor of the team owners who appointed you (if you were to rule in favor of the Knicks that is), or (2) you don't irritate the owners, especially a large market team owner (if you were to rule in favor of Brown that is).
Posted By : Rick Karcher
Should "Competitive Balance" Be Ejected From Sports Antitrust Jurisprudence?
Message posted on : 2006-09-29 - 14:10:00
Temple Law professor Salil Mehra and Pepper Hamilton associate Joel Zuercher have posted a copy of their forthcoming paper Striking Out 'Competitive Balance' in Sports, Antitrust and Intellectual Property, forthcoming in the BERKELEY TECHNOLOGY LAW JOURNAL. Here's an abstract of the paper, which can be downloaded free of charge from here:Professional sports leagues enjoy a unique justification in defending their seemingly anticompetitive practices under the antitrust laws: They allegedly need to maintain competitive balance. According to the argument, sports leagues need to do anticompetitive things to enhance their competitive standing vis-a-vis other sports leagues or other forms of entertainment. The argument is on the leading side of a circuit split, with only the D.C. Circuit rejecting it. Additionally, sports leagues have been adept at getting this argument into public discourse and legislative consideration.
This Article argues that antitrust should reject the competitive balance argument on its face. The competitive balance argument makes the assumptions that there can only be one championship competition per sports league, that leagues can and will engineer balance in that unique competition, and that fan interest is directly related to that singular competition. This Article draws on comparative data and recent economic research to conclude that each of these assumptions is wrong and that judicial endorsement of the competitive balance argument may simply be an aesthetic preference without empirical support. Instead, a solution lies in reconceiving the league competition envisioned by the competitive balance argument. In particular, a sports league can be subject to several different “competing competitions� among its constituent teams; it could thus maintain fan interest even in the absence of competitive balance. This view draws support from the experience of the decade-old English Premier League and also helps to illuminate Major League Baseball's litigation attempting to expand its intellectual property rights to limit fantasy baseball league operators.
Posted By : Geoffrey Rapp
How much is exclusion from youth hockey worth?
Message posted on : 2006-09-29 - 12:42:00
One Canadian man thinks the exclusion of his three children from a Canadian youth league is worth $100,000 (ed. note: that's 100K in monopoly money...which works out to about 90,000 USD). Says the plaintiff: "My kids are pretty upset. Their friends are all playing hockey. They're getting teased at school because they can't play. They're 11, eight and six and they're having to put up with this."
The kids were excluded after the league deemed false the father's allegations that a coach physically abused his daughter. Hat tip to Frank Snyder's Contract Law Blog, which notes that the case would have been about football if the venue had been Texas.
Posted By : Geoffrey Rapp
Paul Haagen's Faculty Associates Plan for Duke University
Message posted on : 2006-09-29 - 00:03:00
Duke Law Professor Paul Haagen, who teaches sports law, is head of Duke University's Academic Council, and is a former college lacrosse player, has proposed that Duke University professors be individually assigned on a voluntary basis to Duke sports teams. (Jane Stancill, "Duke Sports Idea Roils Professors," News & Observer, 9/21/2006). The match-up would serve as a way of improving communication between the University's sports and academic programs. The professors involved would be called "faculty associates," and while they would not be expected to monitor or report on a team, they could attend practices, travel with the team, and get to know athletes and coaches. The faculty associates would be assigned by a faculty governing body--and not the coaches--and they would be periodically rotated so as to avoid the potential of becoming advocates for individual teams or coaches.
Professor Haagen's idea has been met with both enthusiastic support and scorn on the Duke campus. For instance, Duke women's lacrosse coach Kerstin Kimel believes that Haagen's idea would greatly improve dialogue between academic and athletic personnel:
"There isn't a real tremendous understanding from a faculty standpoint about what our athletes and coaches do day to day. There's been a continuous drumbeat to divide these two groups. There's just a lot of misperception."
Others, such as Duke political scientist Paula McClain, claim that "people are just aghast that it's even being considered." Apparently, Professor McClain--who is co-director of Duke's Center for the Study of Race, Ethnicity, and Gender in the Social Sciences--believes that in the aftermath of the Duke lacrosse scandal, the University needs to distance itself from its sports teams, rather than embrace them.
Personally, I think Professor Haagen's idea is a wonderful one. Stereotypes and misconceptions usually diminish whenever persons from different groups can experience other groups, especially groups that would otherwise be distrusted or feared. Indeed, this has been a core finding by prominent social psychologists, including Stanford University's Claude Steel and the late Muzafer Sherif. And in a very different context, we talked about this same idea in relation to Chad Ford's ESPN work on Playing for Peace: the concept of using basketball to integrate people who would otherwise distrust one another.
As Professor Haagen alludes, putting a "human face" on the unknown is often the best way to no longer fear it. It will be interesting to see whether his plan is given a chance to prove that.
Posted By : Michael McCann
Terrell Owens and Jumping to Conclusions
Message posted on : 2006-09-27 - 15:24:00
As you know, Dallas Cowboys wide receiver Terrell Owens may have attempted to commit suicide last night by overdosing on the painkillers that he was using for his hand injury. Thankfully, Owens is okay physically, as he checked out of the hospital earlier this morning. He will address the media later this afternoon. It should be noted that while an internal police report that was somehow leaked to the media found that Owens did try to committ suicide, both Michael Smith and Michael Irvin of ESPN report that Owens is adamantly denying that he attempted to commit suicide. Owens asserts that he suffered an adverse reaction to the medicine.
Without knowing more confirmed facts, it's impossible to know what happened or why whatever happened happened. We might never know. But interestingly, many media and fans have immediately accepted the storyline that Owens tried to commit suicide, and they have also put on their amateur psychologist and psychiatrist hats to offer pseudo-clinical explanations.
Some believe that Owens is simply a bad guy who does destructive things, and that this is just his latest ploy for publicity. This has been the reaction of many message boards and talk radio discussions.
Others view the apparent suicide as a sad chapter in the life of someone who has made a lot of bad decisions. For instance, C.W. Nevius of the San Francisco Chronicle blames Owens for "blowing" his career:
"There are plenty of kids from tiny towns and humble backgrounds who hit the big time and manage just fine. He had a miracle chance and he blew it."
Still others take a more sympathetic view and speculate that Owens' self-centeredness reflects that he has been masking other problems that are not his fault. For instance, MSNBC's Mike Celizic posits that Owens' problems can be explained by his childhood:
"Whatever Owens' problems are, they go way back to his childhood, when he was raised by a strict grandmother who didn't allow him to leave the house except to go to school and church."
But perhaps the best reaction is the least interesting one: we have no idea what happened and no one can honestly say that they saw "this"--whatever "this" really is-- coming. Interestingly, that is the view that trained psychologists seem to be endorsing. For instance, ESPN interviewed sports psychologist Dr. Joel Fish who finds that nothing in Owens' past indicated signs of potential suicide. Dr. Fish also cautions against jumping to conclusions because a small change in the facts could make what happened look much more like an inadvertent overdose than a suicide attempt.
I wonder what the reaction would be if a different player had experienced the exact same incident? We'll hopefully never know, but if you substitute Tom Brady or Donovan McNab for Terrell
Owens, I have a feeling people would be a lot more patient in waiting for the facts to come out before drawing conclusions on what happened and why whatever happened happened. I also wonder if the "internal police report" concluding that Owens tried to commit suicide would have been leaked if the player had been someone else.
Posted By : Michael McCann
Matt Clement
Message posted on : 2006-09-27 - 10:24:00
In the wake of media and fans jumping to the apparently mistaken conclusion that Terrell Owens tried to commit suicide, it's interesting to think about Red Sox pitcher Matt Clement, who learned earlier this week that he has suffered a serious arm injury that will likely keep out of the 2007 season. Famed shoulder specialist Dr. James Andrews discovered that the 32-year-old, who hasn't pitched since May, will require a major procedure on his arm.
What makes Clement's story interesting is that many Red Sox fans and media thought that his problems were more "psychological" than physical, and that he had invented an "arm injury" to mask his fear of pitching. You may recall that Clement was hit in the head with a line-drive last year, and his performance thereafter suffered considerably.
Consisder comments by Mike Fine of The Patriot Ledger back on May 25:
Perhaps now's the time for Matt Clement to put up or ... well, not exactly shut up, because the soft-spoken Red Sox right-hander isn't one for ranting and raving when things aren't going well. In fact, he accepts responsibility for his faults. Perhaps that's his problem. Perhaps it goes beyond mere words.
Perhaps it's time to suck it up and just go out and do something that he hasn't done consistently since early last season: pitch in a manner befitting a major league hurler who's earning more than $9 million.
Or take some comments from the Sons of Sam Messageboard, which usually features excellent commentary on the Red Sox.
I'm not sure if the problem is his "shoulder" or what's between his shoulders . . . he lacks confidence, exhibits no command whatsoever and his body language is crap. He is an unmitigated disaster.
fsd
Posted By : Michael McCann
Revolving Doors in Sports: Conflicts of Interest When Players Go Front Office?
Message posted on : 2006-09-26 - 13:43:00
Congratulations to Steve Yzerman, recently retired from his role as a Detroit Redwing hockey player, on moving to a new job as “vice president� of the team. Thank goodness he'll be gainfully employed, since I'm sure his finances have taken a hit since his retirement at the end of last season.
In professional sports, some newly retired players take breaks to spend time with family and eventually return to positions with the same team or another franchise. Others move into broadcasting. Some dedicate their efforts to their outside businesses (so often restaurants) and other investments. Some become coaches at the college level. But what seems like a fairly large number move almost immediately into executive positions with the same franchises for which they played.
Such sudden moves may raise ethical issues and conflicts of interest, which is why many industries have formal regulations or informal customs to prevent it. Elected officials are often barred from lobbying the government for a period of time after leaving office. In the military, an enlisted soldier, sailor, airman or marine who receives an officer's commission typically (by custom) is transferred to a different unit from the one in which he or she served as an enlisted person.
Is there reason to expect the sports industry to be free of conflicts when players come back through the revolving door? A couple of obvious concerns come to mind. Players no doubt develop friendships while on the team. Some of their locker-room mates may be loved, others loathed. It's certainly possible to imagine that a player-turned executive may use their newfound power to reward friends or punish enemies – for instance, with more (or less) generous payouts come contract time. Such concerns might even surface near the end of a players' career. While Yzerman's new post, for example, was just announced, it's safe to assume that at least some preliminary negotiations were under way before he decided to retire from the game. Might other players on the team treat a player soon to retire and expected to receive a front-office appointment with “kid gloves� during his final months as a player? Might coaches give the player extra playing time, or less onerous practice schedules, in an effort to curry favor with a likely future executive?
One might also worry that players acquire sensitive information about players' and players' unions. For instance, a player might learn about another player's personal life, financial needs, health and well being. If that player retires and moves to the other side of the table, might we worry that he will offer such information to the franchise to earn other executives' trust? A star player might be privy to discussions among union leaders about issues such as salary caps likely to surface at future collective bargaining sessions. Is there reason to worry that a player will pass such information to his franchise bosses upon taking an executive's seat, such that team owners will gain an unfair advantage at the bargaining table? At a minimum, we might worry that retired players who immediately become executives are victims of sentiment when it comes to their former teammates and coaches. They might have a hard time making “hard decisions� to cut, fire, or punish their former pals. For franchises that are publicly owned, shareholders certainly want executives to be guided by concerns other than friendship.
To be sure, there are advantages to the revolving door in sports – a player has a huge advantage over a “man on the
street� in terms of information about the inner workings of the franchise for which they played. I'm also not implying that any particular player has behaved unethically, and I have no reason to suspect that Yzerman will. But maybe sports should develop a formal or informal practice of having athletes take a bit of time off before moving into front office positions – just long enough that old grudges could heal and old friends can move on to other teams. Or, players could be encouraged to take executive positions with teams other than those for which they played.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-09-26 - 13:08:00
New this week:Emily Tumbrink Brackstone, Case note, Civil rights--Title IX--an individual may maintain a private right of action under Title IX when the federal funding recipient retaliates against the individual due to his complaints about sex discrimination, discussing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 2005, 73 TENNESSEE LAW REVIEW 115 (2005)
Andrew M. Jones, Comment, Hold the mayo: an analysis of the validity of the NBA's stern no preps to pros rule and the application of the nonstatutory exemption, 26 LOYALA LOS ANGELES ENTERTAINMENT LAW REVIEW 475(2005-2006)
Posted By : Geoffrey Rapp
Why is the NFLPA after Carl Poston?
Message posted on : 2006-09-25 - 01:24:00
Two months ago, super agent Carl Poston's agent license was officially suspended for 2 years by the NFLPA for his alleged negligent conduct in the negotiations of LaVar Arrington's contract extension with the Redskins that took place back on December 26, 2003 via long-distance telephone and facsimile between Poston (who was at his office in Houston) and the Redskins personnel (who were in Washington). Earlier this year, the NFLPA issued a disciplinary complaint against Poston claiming that he was negligent by certifying a contract on behalf of Arrington that failed to include an agreed upon $6.5 million roster bonus. At the beginnning of this year, the NFLPA's disciplinary committee issued a complaint, held a hearing and imposed a two year suspension. Poston then appealed the NFLPA's determination to an arbitrator as permitted under the NFLPA agent regulations. But he also simultaneously filed a complaint in federal district court asserting that the NFLPA's disciplinary complaint was not based upon verified information; that he was denied the opportunity to be physically present at the NFLPA disciplinary hearing; that he is entitled to the appointment of a neutral arbitrator for his appeal (not one appointed and paid for by the NFLPA); and that the disciplinary complaint is time-barred under the NFLPA agent regulations.
But there's more to Poston's complaint against the union than alleged procedural violations. Poston claims that the Redskins lied to him by falsely indicating that the team had to have a completed deal by the end of the day on December 26, 2003 in order to obtain the desired salary cap relief, and that the Redskins promised Poston over the telephone on the 26th that the contract Arrington was signing in Washington that evening did in fact include the $6.5 million bonus. Immediately thereafter, the NFLPA filed a grievance against the Redskins on behalf of Arrington for breaching the agreement and not including the $6.5 million bonus in the contract as promised, and the union hired Jeffrey Kessler's law firm Dewey Ballantine to handle the grievance against the Redskins on Arrington's behalf. Arrington and the Redskins ultimately settled the grievance amicably and the settlement provided Arrington with a new contract. Kessler is now the attorney on behalf of the NFLPA with respect to the NFLPA's disciplinary proceedings against Poston, and, according to Poston, the allegations in the disciplinary complaint stem from information gathered by the NFLPA's lawyers while representing Arrington in the grievance against the Redskins. Poston asserts in his complaint that it's a conflict of interest for (1) Kessler to use such information without Arrington's consent and (2) Kessler to pursue a disciplinary complaint against Poston (which Arrington opposes) because it's against the interest of Kessler's client (Arrington) to do so.
Poston makes a good point that the arbitrator in disciplinary proceedings with agents is not truly "neutral" although the NFLPA agent regulations state it as such. A neutral arbitrator is one that is mutually agreed to by the parties or chosen through an impartial selection process. Poston obviously feels that it's a waste of his time to try to argue his version of the case in front of the arbitrator. If an arbitrator rules against him, no court could reverse the arbitrator's decision.
But in any event, why is the union after Poston? The NFLPA is charged with looking after the best interests of the players. Here, the only player's interest that is affected would be Arrington's, and he resolved his dispute with the Redskins and he has consistently opposed any disciplinary action against Poston. If Arrington's not upset with his agent, then why is the NFLPA? Arrington recently appeared in court on behalf of Poston
on this matter, and the judge acknowledged Arrington's presence, saying: "I see him here today and I recognize that he's very loyal to Mr. Poston."
The union filed a grievance on behalf of Arrington against the Redskins for bad faith negotiations with Poston by taking advantage of the situation with Carl in Houston and by breaching a verbal promise to include the bonus in the contract that Arrington signed in Washington at the "final hour" without the presence of his agent. Interestingly, now in the disciplinary action against Poston, the union is taking an opposite position by essentially claiming that Poston was negligent in not assuming that the team he was negotiating with would be acting in bad faith. Is that negligent? Giving the union the benefit of the doubt here, even if Poston completely fabricated his version of the story, it seems highly suspect that he would just choose to not review the contract of one of his elite clients and overlook whether the contract contained a $6.5 million bonus. Carl is an accomplished attorney and agent, and he and his brother Kevin are notorious for being zealous advocates on behalf of their clients and have obtained some record-breaking contracts over the years. Indeed, when an agent's fee is tied to the value of the contract, you can bet that the first thing the agent will do is ensure that the amount of the player's compensation stated in the contract is accurate!
Having said all of this, I am outspoken about the necessity for players associations to take a more proactive role in their efforts to combat agent misconduct, but this one just doesn't seem to fit the mold.
Posted By : Rick Karcher
Let's Not Go Crazy: NFL Rules on Eliciting Crowd Noise
Message posted on : 2006-09-24 - 14:45:00
The New York Times' John Branch has an interesting story today on NFL efforts to overcome crowd noise ("For NFL, Crowd Noise Has Become a Headache," 9/24/2006). The NFL has been fielding more and more complaints from teams that crowd noise has led to too many off-side penalties. Basically, the louder the crowd, the less teammates are able hear each other before a play begins. It is especially a problem for quarterbacks and their offensive lines.
Although the NFL rule book specifies that a home team can be penalized if its crowd becomes too loud, that rule hasn't been enforced. And it hasn't been enforced because a lot of NFL fans like the crowd being "the 12th player" for the home team: very passionate fans can disrupt the visiting team and rattle its players, thus becoming almost defacto members of the home team. So the ability of fans to disrupt the visiting team sort of rewards the "talents" of the real rabid fans.
But new NFL commissioner Roger Goodell would like to address player complaints about these rabid fans. Wisely, he is not following the playbook of Boston University for regulating crowd behavior. Instead, Goodell suggests placing microphones in quarterbacks' helmets and speakers in the helmets of other offensive players, so that play calls and snap counts can be heard despite the noise. Quarterbacks can already use microphones for communication with their head coach, but those communications are cut off with 15 seconds left on the play clock.
Whether or not microphones and speakers are used, it doesn't appear that Goodell will lighten up NFL rules on how teams can elicit reactions from fans. As detailed last Wednesday in the Seattle Times, NFL teams cannot use certain electronic messages or slogans to get the crowd going, including the following:
"Let's go crazy"
"Pump it up"
"Noise!"
"Let's hear it!"
"12th Man"
There are even NFL rules on when the chant "De-fense!" can be encouraged.
It's interesting to compare the crowd behavior policies of Boston University and the NFL. Boston University polices the crowd and doesn't let fans swear, while the NFL polices the teams and doesn't let them rile up the fans. The NFL is also considering new technologies that would allow players to overcome crowd noise. No pun intended, but it sounds like that might be the best idea.
Posted By : Michael McCann
The Citgo Sign Behind Fenway Park and Fearing Hugo Chavez
Message posted on : 2006-09-23 - 00:05:00
In a speech before the United Nations General Assembly on Thursday, Venezuelan president Hugo Chavez called President Bush "el diablo" which means "The Devil." Although Chavez's speech drew loud applause and cheer in the Assembly, it has generated a great deal of disdain in the United States, as has his remark that Bush is "an alcoholic." Chavez's remarks have also lead to guilt-by-association of the Citgo Petroleum Corporation, which is the U.S. based refining arm of Venezuela's state-run oil company. Venezuela is the fourth largest foreign source of U.S. oil and petroleum.
One proposed sanction of Citgo might affect baseball fans. Local city councilor Jerry McDermott argues that the storied "Citgo Sign" behind Fenway Park should be replaced by the City of Boston with a very large American Flag. Here's McDermott:
"Given the hatred of the United States displayed by dictator Hugo Chavez, it would be more fitting to see an American flag when you drive through Kenmore Square. I think people would soon forget the Citgo sign."
I have a better idea: let's do nothing. Really, wouldn't a government seizure of the Citgo sign only support Chavez's argument that we are living in a totalitarian state masked as a democracy? McDermott may be right that "people would soon forget the Citgo sign," but I wonder what else they might soon forget.
Posted By : Michael McCann
Chief Illiniwek Lives to Offend Another Day
Message posted on : 2006-09-22 - 14:24:00
On Tuesday, an Illinois appellate court affirmed the dismissal of a civil rights lawsuit filed by the Illinois Native American Bar Association against the University of Illinois concerning the “Chief Illiniwek� mascot. The court's opinion is available at Illinois Native American Bar Ass'n v. University of Illinois by Its Bd. of Trustees, 2006 WL 2684269 (Ill.App. 1 Dist.,2006). Plaintiffs argued that the mascot violated a 2003 Illinois Civil Rights Act, which providesa unit of state, county, or local government in Illinois may not:
(1) exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person's race, color, or national origin; or
(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin.
In defense, U of I pointed to a provision of the 1996 University of Illinois Act, which provides: Consistent with a long-standing, proud tradition, the General Assembly hereby declares that Chief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign.
The court explained the dispute on appeal:Plaintiffs contend the two statutes at issue are irreconcilably conflicting and ask this court to decide which statute controls. They say the Illinois Civil Rights Act relates to discrimination and civil rights, while the University of Illinois Act is silent on those subjects. Because the statutes are not governed by the same spirit or policy and do not relate to the same subject, plaintiffs contend the two provisions cannot be harmonized. Furthermore, when the legislature passed the Illinois Civil Rights Act in 2003, it is presumed to have been aware of . . . the University of Illinois Act, passed in 1996. Yet, the legislature did not include an exception in the Civil Rights Act allowing the University to "discriminate against Plaintiffs through the use of an 'Indian' mascot, Chief Illiniwek." As the later and more specific statute, the Civil Rights Act should control, plaintiffs say.
Judge Wolfson, writing the court's opinion, found no conflict between the statutes:There is no indication in the Civil Rights Act that the legislature intended to "overrule" or otherwise diminish its declaration in the University of Illinois Act that "Chief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign." . . . Given the direct language and glowing exaltation of Chief Illiniwek in the 1996 statute, we believe that had the legislature intended to repeal the provision or supercede it, it would have done so expressly. . . . There is no "irreconcilable conflict" or contradiction between the statutes. Nor is there a need to harmonize the two provisions since the statutes are not related. The plaintiffs concede the two statutes "do not pertain to the same subject and legislative mission," and [the University of Illinois Act] "is silent on the subjects of discrimination and civil rights." In order for two statutes to be in irreconcilable conflict, they must relate to the same subject. . . . They do not in this case.
Judge Hoffman's special concurrence opined that the plaintiffs' had failed to state a cause of action under the 2003 Civil Rights law regardless of existence or absence of a conflict between the two statutes. The
judge wrote:Distilled to its finest, the plaintiffs' amended complaint asserts that the symbolism of the Chief's performances is discriminatory, and it is that symbolism which the plaintiffs assert creates a hostile environment. . . . [I]f the mere uttering of disparaging words or phrases about a class of persons which engenders offensive feelings is insufficient to establish a hostile environment . . . , I believe it follows that gestures or dress which a member of a class may find offensive are also insufficient.
Judge Hall dissented, writing that a reasonable person might be able to conclude plaintiffs had stated a valid civil rights claim.
Given the NCAA's involvement and the university's reported decision to abandon the mascot, the plaintiff's request for injunctive relief may soon be moot. However, in that they have also asked for damages, expect an appeal to the state supreme court.
Posted By : Geoffrey Rapp
Game of Shadows' Authors to be Jailed: Rethinking the Reporter's Privilege
Message posted on : 2006-09-22 - 10:35:00
San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada are set to be jailed unless they agree to testify about who leaked them grand jury testimony regarding Barry Bonds and other players alleged to have used illegal steroids (update: also check out an excellent post by Jeffrey Standen on this topic on his new blog on sports law). Back in March, we discussed their popular book, Game of Shadows, which was heavily based on confidential sources, and how Bonds sued them for libel. But yesterday, U.S. District Judge Jeffrey White rejected the reporters' request for a monetary fine or house arrest, reasoning that prison time would best compel them to testify before the grand jury. Williams and Fainaru-wada won't have to report to jail until their appeal is heard by the U.S. Court of Appeals for the Ninth Circuit.
Judge White's decision is based on Branzburg v. Hayes, 408 U.S. 665 (1972), where Justice Byron White, writing for the Majority, held that "reporters, like other citizens," must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."
In other words, Justice White--a former NFL running back and Rhodes Scholar--reasoned that reporters don't deserve to be treated with less scrutiny than an ordinary citizen. Moreover, White argued, citizens should have an obligation to reveal information that could protect fellow citizens from unfounded prosecutions, and that obligation outweighs any First Amendment privileges, even for reporters. Interestingly, Branzburg was also cited for the jailing of New York Times reporter Judith Miller when she refused to reveal to special prosecutor Patrick Fitzgerald the name of the source who told her about Valerie Plame.
The opposing view to Branzburg is, of course, that our democratic institutions are strengthened by confidential relationships between reporters and their sources. Without those relationships, we may have never learned about Watergate, Iran Contra, or the Lewinsky Scandal, among other instances of government corruption. While that line of reasoning may not seem as powerful in the context of sports corruption, it nevertheless proves relevant.
Posted By : Michael McCann
Redskins' Latest Woe: Closed Captioning Lawsuit Filed
Message posted on : 2006-09-20 - 15:36:00
The WSJ Law Blog unearths this tidbit from the Washington Post:
The National Association of the Deaf has filed a lawsuit against the Washington Redskins to get team officials to offer closed-captioning for the deaf and hearing-impaired at FedEx Field.
The class-action suit, filed in U.S. District Court in Greenbelt, says the team is in violation of the Americans With Disabilities Act for failing to provide captioning during games.
* * *
The complaint was filed Aug. 31 on behalf of three fans from Maryland who regularly attend home games. It asks the court to order the Redskins and FedEx Field officials to provide and display captioning on scoreboards and video monitors for all announcements, plays and penalties called during the game.
"I am a lifelong die-hard Redskins fan and I love watching the Redskins play at FedEx Field," Shane Feldman of Silver Spring said in a statement. "But I miss out on the total game experience because I cannot hear the information announced on the public address system. Providing captioning is not rocket science; it is simple, and it is the right thing to do."
A Redskins spokesman says that the team is exploring closed captioning technolgoies "even though NFL teams are not required by law to offer closed-captioning in the stadium." I'm not so sure that the NFL is giving its teams good advice about the ADA on that point. What is the basis for its claim that Title III of the ADA wouldn't require closed captioning? There has been extensive litigation and commentary on whether the ADA mandates particular "lines of sight" for wheelchair bound fans at sports arenas. See, e.g., Adam A. Milani, "Oh Say, Can I See--And Who Do I Sue If I Can't?": Wheelchair Users, Sightlines over Standing Spectators, and Architect Liability Under the Americans with Disabilities Act, 52 FLORIDA LAW REVIEW 523 (2000). None of this law, that I'm aware of at least, would immunize the NFL from a Title III (public accomodations) suit under the ADA. "Reasonable modifications" must be made if they would not amount of a "fundamental alternation" of the services provided, and a stadiums are explicitly covered under the definition of "public accomodation." After all, the ADA regulations provide:A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
Thoughts?
The case was filed by Joseph B. Espo, an attorney with Brown, Goldstein & Levy, LLP in Baltimore, Maryland, according to the NAD's August 31 press release. There is some discussion of the technical issues involved in closed captioning in the comments section on the Deaf DC Blog here.
Posted By : Geoffrey Rapp
Do Pro Athletes' Spouses Waive Privacy Rights?
Message posted on : 2006-09-20 - 11:08:00
It may seem obvious that professional athletes have diminished expectations of privacy when compared to a typical person. See O'Brien v. Pabst Sales Co., 124 F.2d 167, 169-170 (5th Cir. 1941), cert. denied, 315 U.S. 823 (1942) (professional athlete waived privacy right by previously seeking publicity); see also Laura Lee Stapleton & Matt McMurphy, The Professional Athlete's Right of Publicity, 10 MARQUETTE SPORTS LAW JOURNAL 23 (1999). Although courts (and commentators) have not always been clear about the difference between a right to privacy and publicity, it's long been clear, as one student author noted, that professional athletes, and other public performers, because of the “public� nature of their occupations, are typically considered to have “waived� their right to privacy; they are also probably more psychologically tolerant of having their daily lives depicted in the press.
D. Scott Gurney, Note, Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs, 61 INDIANA LAW JOURNAL 697 (1985/1986).
Can the same be said for the family members (and, in particular, the spouses) of professional athletes? From the Globe and Mail:Tiger Woods was outraged Wednesday at an Irish magazine and a tabloid that linked photos of his wife to various pornography sites, and his agent was studying the merits of a lawsuit.
“My wife, yes, she has been a model prior, and she did do some bikini photos,� Woods said. “But to link her to porn Web sites and such is unacceptable, and I do not accept that at all. Neither does our team.�
The Dubliner magazine wrote in its September issue about Elin Nordegren, his Swedish wife of nearly two years.
“Most American golfers are married to women who cannot keep their clothes on in public,� the magazine wrote. “Is it too much to ask that they leave them at home for the Ryder Cup? Consider the evidence. Tiger Woods' wife can be found in a variety of sweaty poses on porn sites.�
The Dubliner's efforts seem obviously tortious. Even celebrities, as Jennifer Aniston has recently demonstrated, can assert privacy rights with respect to topless photos under some circumstances. And a photo of the wrong person would seem to offend even the diminished expectation of privacy of a celebrity athlete.
There aren't a lot of guideposts out there regarding the privacy rights of athletes' spouses. Do spouses surrender their privacy rights to the same extent as the athletes themselves? Should the law should be more forceful in defending the privacy interests of athletes' spouses?
Posted By : Geoffrey Rapp
Devern Hansack: 24-Year-Old Prospect or 28-Year-Old Journeyman?
Message posted on : 2006-09-19 - 12:10:00
Devern Hansack is a minor league pitcher for the Boston Red Sox. He was the team's best Double A pitcher this year while pitching for the Portland Sea Dogs. He finished up especially strong, giving up only 5 runs, walking 7, and striking out 28 in his last 30 innings pitched. To cap off his run, he won both games that he started in the Sea Dogs' Eastern League Championship series against the Akron Aeros.
And while on the field celebrating his team's championship, Hansack learned that the Red Sox were calling him up to The Show. The native of Pearl Lagoon, Nicaragua will make his big league debut later this week, when he joins the team's starting rotation.
So far, there's not all that much interesting about Hansack's story, although it must be neat to learn that you've been called up to the big leagues while you are celebrating a minor league championship. But notice that I haven't given Hansack's age. It's because he's either 24, 26, or 28. You take your pick.
MLB.com claims that he is 28. Hansack himself and the Portland Press Herald claim that he is 26. The Baseball Cube claims that he is 24.
Why the confusion? The Houston Astros' originally signed him in 1999, at which time he was born in 1982. For whatever reason, there is no record of him pitching organized ball from 1999 to 2001. He did, however, pitch in Single A from 2002 to 2003, but was mediocre and the Astros released him. There is also speculation that the Astros released him because they somehow learned that Hansack was older than he had originally asserted, and they became upset about it.
After Hansack was released in 2003, he went back to Nicaragua and became a member of the Nicaraguan National Team. A Red Sox scout noticed him pitching in a winter league and signed him to a minor league contract in December of 2005. He seemed to be born in 1978 when that transaction took place.
In the short-term, Hansack's age doesn't really matter. The Red Sox need pitching, regardless of its age. And whether he's 24, 26, or 28, Hansack could pitch for a number of years to come. But in the long-term, and assuming that Hansack becomes a decent big league pitcher, a four or even two year age difference could dramatically affect his earning capacity, particularly given the earliest age at which he could become a free agent. It could also influence whether the Red Sox want to keep him on their 40-man roster or leave him exposed in the Rule 5 Draft.
Hansack's situation also brings to mind the difficulties of verifying birth dates for some foreign players. Of course, it is not a problem unique to foreign players. Some of you may remember Rich Rowland, a backup catcher for the Tigers and Red Sox during the 90s, who was two years older than he claimed to be, as unbeknownst to most, he had been a lumberjack for a couple of years between high school and college (the Boston Globe's Nick Cafardo uncovered the lie, which Rowland made worse by denying). Considering the importance of age for ball players, and how much
money teams spend on player development, it seems surprising that players' ages can still be a subject of debate in 2006.
Update 10/2/2006: Only adding to his mysteriousness, Hansack threw a no-hitter for the Red Sox yesterday in the team's final game of the season, but no one seems to have noticed. Granted, it was a 5-inning, rain-shortened no-hitter and is thus not official, and granted, the Red Sox playoff hopes ended weeks ago, but still . . . this young man (or sorta young man) pitched a complete game no-hitter as a rookie--you would think that it would generate more than mere background noise in today's Boston Globe and Boston Herald (e.g., it appears in the 15th paragraph of the Globe's game story!!).
Posted By : Michael McCann
Buckeyes Appeal O'Brien Contract Case Decision
Message posted on : 2006-09-18 - 17:47:00
The Ohio State University has appealed former basketball coach Jim O'Brien's $2.4 million courtroom victory, which Rick noted here. Mike had an earlier post giving a nice background of the case. No indication of the issues raised on appeal yet; I'm working on locating a copy of the brief.
Posted By : Geoffrey Rapp
NCAA, Division II, and Financial Aid
Message posted on : 2006-09-18 - 16:21:00
A friend of mine is working on a project and would be interested in any thoughts or suggestions on this question:
Can a Division II college exempt student athletes from its general financial aid program? That is, if a student athlete is awarded an athletic scholarship, can the college then take them out of the general pool for need-based financial aid? Result would likely be that the athletes receive their athletic scholarship but not the entire academic amount, even though under a need-based analysis, they would potentially qualify for funding of the entire academic amount. Any potential discrimination issues with this? Any potential Title IX issues with this? Any NCAA regulations/rules that deal with this?
I don't think the NCAA would be concerned with this exemption, but sometimes the NCAA takes positions that seem counter-intuitive. Any thoughts?
Posted By : Michael McCann
WSJ Profiles NHL Deputy General Counsel
Message posted on : 2006-09-18 - 12:35:00
On Friday, the Wall Street Journal profiled (subscription required) NHL Deputy General Counsel Julie Spar Grand. As WSJ law blogger Peter Lattman attests, Ms. Grand seems quite satisfied with her sports law position: Julie Spar Grand is a deputy GC at the National Hockey League. The 36-year-old Penn law grad loves her job. So much so, that in responding to the question “worst part about your job,� she replied, “Nothing comes to mind.� She's says she's spending much of her time these days implementing a league-wide electronic database of players' medical records. . . .
Grand worked at Skadden, Arps, Slate, Meagher & Flom, where she worked in the firm's prominent sports law practice. A former Skadden colleague who had already skated over to the NHL brought her onto the team. (Gary Bettman, the league's commish, is a former partner at New York's Proskauer Rose, as is the NBA's Stern.)
Posted By : Geoffrey Rapp
New Developments in Russia's Battle with the NHL
Message posted on : 2006-09-18 - 10:25:00
A month ago, I posted a story on Russian hockey phenom Evgeni Malkin, who bolted from his Russian professional hockey league team, the Metallurg Magnitogorsk. At that time, it was widely-believed that Malkin, who was already under contract for this season with the Metallurg, would quickly sign a multi-million dollar contract with the Pittsburgh Penguins, who drafted Malkin with the No. 2 overall pick in the 2004 draft. Well, since my post last month, Malkin signed a contract with the Penguins worth up to $3.8 million. And last Saturday, Jason Cato and Karen Price of the Pittsburgh Tribune-Review reported that a Russian arbitration tribunal issued a court order on Friday prohibiting Malkin "from performing for any other hockey club in the Russian Federation or in any other country." ("Arbitration committee rules against Malkin")
Malkin's agent, J.P. Barry of CAA Sports, says he's not surprised by the decision and that they will review the tribunal's ruling with their lawyers before making a decision about whether to appeal:
"It's a tribunal of the Russian Hockey Federation. Obviously, there's still no transfer agreement (between the NHL and Russia), and they're not going to agree with what's taken place to date. ... We'll have to see what their approach will be on this side of the ocean."
I don't think it's any secret what Russia's "approach will be on this side of the ocean." Mettalurg will first probably try to enforce the tribunal's order here in the United States pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In January, the Moscow Dynamo tried to enforce a Russian arbitration award against Alexander Ovechkin of the Washington Nationals. The United States District Court for the District of Columbia held in favor of Ovechkin because the Russian team was trying to enforce an agreement to arbitrate based upon merely an "exchange of letters" that transpired subsequent to the expiration of Ovechkin's player contract with the Dynamo. Dynamo v. Ovechkin, 412 F.Supp.2d 24. That precedent will not help Malkin because Mettalurg has a signed player contract with Malkin.
According to Cato and Price, the NHL has told its clubs that they are permitted to sign Russian players who give at least two weeks' notice to their Russian teams, relying upon general Russian labor laws. But Alexander Berkovich, a U.S. lawyer retained by Mettalurg, says that contracts of professional athletes in Russia are governed by Russian Federal Sports Law No. 80-FZ, specifically Section 26, which states that athletes may only transfer to another team, either in Russia or abroad, "after the expiration of the term of the Sports Activities Contract and fulfillment of all obligations stipulated in such contract." This would seem like the right result, because as I noted in my post last month, if the law were otherwise, it would make all multi-year terms in Russian professional sports contracts superfluous.
The fact that there is no transfer agreement in place probably hurts Malkin's and the Penguins' position more than it helps them because it essentially means that the Russian Hockey Federation has not consented to the NHL signing its players who are under existing contract with Russian teams. If an NHL team signs a player to a contract with a term that overlaps with the term of a Russian contract, there is plenty of precedent that such conduct constitutes tortious interference with contractual relations, for example when the WFL was competing for players with the NFL and the ABA was competing for players with the NBA within the United States in the late 60's and early 70's. Should the NHL be treated differently under the law because the other league is located in another country?
Mettalurg is probably not the only Russian team
willing to fight this one out. The Russian tribunal ruled on Sept. 9 that Andrei Taratukhin, a Calgary prospect, and Alexei Mikhonov, an Edmonton prospect, violated their contracts with the Lokomotiv Yaroslavl as well when they gave notice and left the team following Malkin's departure from Mettalurg. I predict settlement and the entering of a transfer agreement in the very near future.
Posted By : Rick Karcher
Jerrell Powe Drops Lawsuit Against Ole Miss: Where Will He Now Play Football?
Message posted on : 2006-09-17 - 12:53:00
A couple of weeks ago, I discussed football phenom Jerrell Powe's victory in court against the University of Mississippi regarding his eligibility to play there. Sensitive to the recent University High School scandal and to related and myriad revelations of high school diploma mills, the NCAA had denied Powe's eligibility due to concerns about the legitimacy of his high school course work. Powe then secured a temporary restraining order against Ole Miss to enroll him.
But Powe won't be attending Ole Miss this fall, as two major developments occurred in the last 48 hours: 1) the NCAA unsurprisingly
denied Powe's appeal for reconsideration of his course work; and, more surprisingly, 2) Powe has
dropped his lawsuit against Ole Miss, stating:
“Although my attorneys are convinced I have met NCAA requirements, and that we would win the lawsuit, I do not want to enter and attend Ole Miss under a cloud of controversy."
After Powe's judicial victory, some had expressed concerns that college admissions' officers would lose autonomy in their selection of students. Others believed that Powe would be unable to do college-level work, thus putting Ole Miss faculty members in potentially awkward positions to pass him. On the other hand, that concern hasn't stopped countless top schools from admitting athletes who were unprepared to be students there, so why pick on Powe now? I suspect the NCAA is feeling the heat from
New York Times'
exposes on diploma mills, as well as from on-going questions about the NCAA's "educational mission," and Powe might simply be in the wrong place at the wrong time.
So what will the nation's #1 defensive tackle prospect now do? Powe clearly needs to play somewhere, otherwise his skills might atrophy and given his considerable size (6'3, 360 pounds), undesired weight gain could be another concern.
The 19-year-old Powe won't be eligible for the NFL Draft until 2008--at least short of a successful challenge against the NFL's age eligibility rule. Yes, we know that a plaintiff would not win on such a claim in the Second Circuit, but we do not know how another Circuit would rule on it. It should be noted that the NFL's age eligibility rule is now an express part of the league's CBA with the NFLPA, although a rule that precludes non-employees from applying for employment could be deemed to not concern a mandatory subject of collective bargaining, and this rule clearly does
not primarily concern the rights of any NFL players or draftees; rather, it primarily concerns those individuals who, because of it, cannot become NFL players or draftees (see the
Case Western Reserve Law Review article that sports agent Joe Rosen and I are publishing, or this blog's
recent post on O.J. Mayo and Bill Walker that has some great comments, especially by Rick Karcher and PK). So
the issue is not entirely closed, as some would hope.
A less controversial option for Powe would be to take high school level classes this fall and improve his academic standing so that, with NCAA approval, Ole Miss could admit him for the spring 2007 semester. He wouldn't be eligible to play football until the 2007-08 season, but he could work out with the team in that spring semester. He could also try a similar strategy to gain acceptance into rival schools, like Auburn or Alabama. Powe could accomplish the same immediate academic goals at a junior college, where he could also play football, albeit against inferior competition.
Another possibility for Powe would be to play in the Canadian Football League, which does not have the NFL's age eligibility rule. He wouldn't have to sue the NFL or wait for someone else to sue the NFL, and he wouldn't have to take any more classes, although he would have to move to Canada, a lovely country, but a far away place from Powe's hometown of Waynesboro, Mississippi. We shall see.
New Sports Law Scholarship
Message posted on : 2006-09-15 - 17:46:00
New this week: Jonathan Bell, Student article, Ticket scalping: same old problem with a brand new twist, 18 LOYOLA CONSUMER LAW REVIEW 435 (2006)
Jessica K. Foschi, Note, A constant battle: the evolving challenges in the international fight against doping in sport, 16 DUKE JOURNAL COMPARATIVE & INTERNATIONAL LAW 457 (2006)
Posted By : Geoffrey Rapp
Do We Take Youth Sports Too Seriously?
Message posted on : 2006-09-15 - 00:05:00
In the spirit of Keith Olberman's nightly "Worst Person in the World" award, I bring you Mark R. Downs, Jr.:
UNIONTOWN, Pa. -- A baseball coach accused of offering an 8-year-old money to bean an autistic teammate so he couldn't play was convicted Thursday of two lesser charges against him, and evaded more serious charges.A jury convicted 29-year-old Mark R. Downs Jr. of corruption of minors and criminal solicitation to commit simple assault, Fayette County authorities said.
Authorities said Downs offered to pay one of his T-ball players, Keith Reese, $25 to hit Harry Bowers, a 9-year-old autistic teammate with a ball while warming up before a June 2005 playoff game.
Earlier in the trial, Reese testified about Downs' offer, saying he purposely threw a ball that hit Bowers in the groin, then threw another ball that hit him in the ear on Downs' instructions. Bowers also testified about being hit by the balls Reese threw during pregame warmups.
Witnesses previously testified that Downs wanted to bench Bowers so that he could win a youth baseball playoff game.
Aside from bringing to mind Geoff's great post last week on little league ethics, this story reminds me of Shawn Phillips, the Pennsylvania policeman who in 1999 gave a 10-year-old pitcher $2 to hit a 10-year-old batter with a fastball in a little league game. Phillips made the payment behind a local school's bike tracks, and then watched his hit man (or I guess I should say "hit boy") drill the other boy in the knee. Phillips would later be convicted of corruption of a minor and solicitation to commit simple assault and he would serve time behind bars.
Now, I haven't played T-ball or little league in almost 20 years, and I haven't coached them, but have they become overly competitive or too intense, or are these stories more like isolated incidents?
And what, if anything, might the current "Youth Baseball Culture" say about our country in general?
Posted By : Michael McCann
Islanders Sign Goalie Through the Year 2022!
Message posted on : 2006-09-13 - 18:30:00
Kevin Allen of USA Today reports that the New York Islanders just signed goaltender Rick DiPietro to a 15-year, $67.5 million deal ("Islanders sign DiPietro to record 15-year deal"). Allen notes that the deal is believed to be the longest term player contract in NHL history, although Wayne Gretzky had a 21-year deal that included some personal service stipulation. There's no service stipulation in DiPietro's deal.
DiPietro's contract runs through the year 2022, and DiPietro will be 40 years old at that time! Allen notes that a 4 or 5 year deal is considered a long term deal in the NHL, and the longest deal signed in the league so far this summer was Patrik Elias's 7-year, $42 million deal with the New Jersey Devils. The GM of the Atlanta Thrashers, Don Waddell, is quite surprised: "It's highly unlikely that you will see teams go beyond that. This is a once-in-a-lifetime contract. Ownership must feel very strongly that he's their guy for the next 15 years."
But when agents are in awe over this contract, I really begin questioning the logic:
"I would think it's an aberration. I've been a little bit surprised by the length of contracts in general, but this certainly raises the bar. It's mind boggling that anyone would sign a 15-year deal, but hallelujah. My sense of the marketplace was that there was going to be a lot more musical chairs. There would be core players, but everyone else would rotate. Do you really want one player to be your key guy for that length of time? Obviously the Islanders do."
I hate making generalizations, and I typically don't like to debate business decisions made by teams, but I question why any team in any sport (that has guaranteed contracts) would lock up any player to a long term contract. First, there are just too many risks involved, and the amount of the investment is just too great in proportion to the risks. Secondly, on long-term deals the team usually ends up paying the player close to the same amount that it would pay him under a short-term deal anyways, but takes on much greater risk. In any other industry, price is typically tied to the amount of risk. Finally, long term contracts in hockey are even riskier than in baseball because, if the team buys out the remainder of the contract prior to the end of the term, the team takes a hit against their salary cap in the amount of the buyout.
Interestingly, new Islanders GM Garth Snow was the backup goalie behind DiPietro last season, and they are close friends. DiPietro told Allen at the interview: "I was probably more excited than anyone when he became general manager." Yeah, I can see why....
Posted By : Rick Karcher
Them Aren't Fighting Words: Boston University's Need for "Wholesome Cheers"
Message posted on : 2006-09-12 - 21:03:00
Boston University has a new policy for those attending their sporting events: if you swear or make a racist or sexist comment, and someone else hears it and complains about it, you will be tossed from the stands (Maria Cramer & Sarah Schweitzer, "BU Moves to Clean Up Foul Language at Games," Boston Globe, 9/12/2006). This policy most affects the BU men's hockey games, as the Terriers are one of the best teams in the country and often sell out the arena. Apparently, some of the more rabid Terrier fans "use profane chants" to express their loyalty, as they believe that "cursing is practically tradition." Here's BU's dean of students, Kenneth Elmore, on the thinking behind this new policy, which BU claims has also been adopted by Ohio State University and the University of Wisconsin:
"Standing and shouting obscenities does not have a place. I don't equate school spirit with the yelling of obscenities," Elmore said.
School officials hope spectators return to more wholesome cheers.
"I know our fans can be classy," Elmore said. "I hope they can use cheers we can all participate in and feel proud to do."
Although it's unclear how BU students in general feel about this new curse-free policy, the Globe article interviews one sophomore who doesn't seem to like it:
``That's terrible and an infringement on our freedom of speech," said Kendall Lyons, an 18-year-old sophomore who often takes part in the chants. ``Sports won't be fun anymore."
Geoff discussed bad words and sports in June, and touched on some of these same issues.
While I agree with Boston University that racist or sexist remarks should not be tolerated, I question the University's crack-down on obscenities. Given that a lot of people seem to swear during games, how will this policy be enforced? Now, it could be only intended for either groups of fans swearing in a chant or the habitual, usually intoxicated curser, particularly when he is sitting near children (i.e., the true jerk who we all agree should be thrown out), rather than the fan who occasionally reacts to a disappointing turn in the game with a swear, but couldn't the swearing groups and habitual curser be kicked out anyway for being disruptive? Is this policy really needed?
And is promoting "wholesome cheers" realistic or even desired, especially if they might jeopardize the home court/field/arena advantage? On the other hand, might this policy be a helpful strategy for diminishing the "us" versus "them" mentality that pervades sports so much, and might it also discourage the potential for group violence?
Posted By : Michael McCann
Fallout from "Resolved" Deion Branch Saga: Fines, Tampering Charges, and Mind Games?
Message posted on : 2006-09-12 - 12:58:00
The New England Patriots have resolved their embittered contractual dispute with hold out wide receiver Deion Branch by trading him to the Seattle Seahawks for the Seahawks' 1st round pick in the 2007 NFL Draft. When compared to other recent trades of high profile wide-receivers (e.g., Donte Stallsworth only fetching the Saints a 4th round pick and reserve linebacker Mark Simoneau; Javon Walker only netting the Packers a 2nd round pick; Ashley Lelie only providing the Broncos with a 3rd round pick), many believe that the Patriots obtained a terrific return for Branch, a 26-year-old who has never caught more than 78 passes or accumulated 1,000 yards receiving in a season. Although Branch is a former super bowl MVP, he probably isn't a "number 1" wide receiver, particularly given his injury history. So the Patriots seemed to do pretty well with this mess, and the only better outcome probably would have been to find a way of resolving their dispute with Branch and bringing him back to the team.
But the Patriots aren't satisfied. They are now demanding that Branch pay the full amount of fines he accrued by not reporting to the team. Those fines exceed $600,000. This demand appears to be within the Patriots' rights, and the likely reason they hadn't already asked for them is that they didn't want to burn bridges with Branch while there remained a possibility of him returning. With him gone, however, those bridges are probably irreparably destroyed, so they might as well collect (although I suppose doing so could run the risk of upsetting some of Branch's former teammates, who seemed to love the guy). Even with Branch set to sign a 6-year, $39 million deal (including a $13 million signing bonus) with the Seahawks, $600,000 is an awful lot of money.
According to ESPN's Chris Mortensen, the Patriots are also preparing to file tampering charges against the New York Jets because the Jets, and specifically head coach Eric Mangini, told Branch what they had offered the Patriots as compensation for the wide receiver. The Boston Herald's John Tomase has the story:
The Patriots allowed Branch to negotiate with other teams during the last week of August. During that time, the sides were granted permission to discuss contract terms only. The Patriots contend the Jets told Branch about their offer of a second-round pick after putting together a six-year, $39 million contract.
The Patriots believe that knowledge “poisoned the waters� and guaranteed Branch wouldn't re-sign with the team.
To add to the drama, the Patriots are playing the Jets this Sunday and 35-year-old Mangini--the NFL's youngest head coach--was the Patriots' defensive coordinator until this year. I wonder if Bill Belichick is simply trying to
get into his former protege's head as he prepares for this Sunday's game?
Posted By : Michael McCann
Sports and Stadium Security, Five Years Later
Message posted on : 2006-09-11 - 17:14:00
Chris Dade of the Beaumont Enterprise has a great feature story on legal issues surrounding stadium security and how views about those issues, and sports in general, have changed since the September 11, 2001 terrorist attacks ("When Games Really Mattered," 9/10/2006). Dade interviews several people for this story, including me. Here are some excerpts:
As in other times of national distress, sports helped the nation cope in the weeks and months that followed Sept. 11. "It certainly was that way immediately after 9/11," said Peter Roby, the director for Northeastern University's Center for the Study of Sport in Society in Boston. "Sports played an important role in people feeling comfortable with their lives." . . .
The U.S. may be divided on the war in Iraq and Bush's handling of terrorism, but it's united on another front, in America's stadiums and arenas. "It's a place for people to lose themselves," Roby said.
Keeping thousands of spectators safe, however, is a matter that has received more consideration in the years since the attacks, said Michael McCann, a law professor at Mississippi College School of Law . . .
McCann said another dynamic of security at sporting events comes from the attentiveness of spectators. He contrasted airline passengers on the lookout for anything suspicious with sports fans who are mainly focused on the game. "They're not thinking about security or what's around them," McCann said. "When you go to a game, you go to watch the game." . . .
Lines that form outside stadiums as spectators go through security ironically "could become a target," McCann said. "You never know."
Lynn Jamieson, a professor in the Department of Recreation and Park Administration at Indiana University, said the level of security at sporting venues generally varies within each league. She said the experience patrons have with security at a stadium or arena can be similar to an airport. "As with anything else, you can have an OK experience with security at one airport and a horrendous experience at another," she said. "There is never not going to be an issue."
If you're interested, I address stadium security, including the legality of pat-downs, in my forthcoming article in the Willamette Law Review entitled "Social Psychology, Calamities, and Sports Law".
Do you think increased efforts at stadium security have been working or has the absence of terrorist strikes at our sporting events simply reflected a lack of a credible threat?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-09-11 - 10:15:00
New this week: 
Howard M. Wasserman, Fans, free expression, and the wide world of sports, 67 UNIVERSITY OF PITTSBURGH LAW REVIEW 525 (2006)
Posted By : Geoffrey Rapp
Overseas Epiphany? Coach K Now Opposes NBA Age Limit
Message posted on : 2006-09-08 - 10:48:00
We spend a lot of time on this blog discussing the NBA age limit, and doing so has generated some great debates. To continue in that tradition, I bring you news that Duke men's basketball coach Mike Krzyzewski--a longtime supporter of a higher NBA age limit--has done a 180 and now vehemently opposses it. Ken Tysaic of the Charlotte Observer has the story on Krzyzewski's stunning change of heart, which occurred while he recently coached Team USA to a bronze medal in the FIBA World Championships (and thanks to D'arcy Mulligan for the link). Here are some excerpts:
After coaching Team USA's LeBron James and Dwight Howard, who went straight to the NBA from high school, Duke's Mike Krzyzewski said he opposes the year-old rule that prevents NBA teams from drafting high school seniors . . . Now he is speaking out against it, saying basketball holds back teens while tennis, soccer and golf do not.
"We have a 16-year-old girl (Michelle Wie) that's winning money, a beautiful girl," Krzyzewski said. "They should be given those opportunities, and we should be able to adjust. It's not going to hurt the college game. The college game is going to be OK no matter what. I think this puts the college game in more of harm's way than it needs to be" . . .
He said when basketball players who don't want to attend college are forced onto campus for a year, college officials have trouble guaranteeing players will take their academic responsibilities seriously.
"There are a lot of successful people in this country who didn't go to college," Krzyzewski said. "They should be given the right to do that. We have one of the richest men in the world (Bill Gates) who didn't finish college, giving away hundreds of millions of dollars. To me, I'd rather have it the way it was (with no age limit)."
Some of us have been saying the same things for years, but I'm glad that Coach K has crossed over and joined the ranks of dissenters.
Posted By : Michael McCann
The NFL's New Sideline Ban: Another League Effort to Control Content
Message posted on : 2006-09-07 - 09:46:00
The NFL season kicks off this weekend. But for the first time this season, you will not see the same coverage that you experienced in the past from your favorite local T.V. newscaster before and after the game. That's because last March, NFL owners adopted a resolution that bans local television photographers from the sidelines during regular season games. The only media affected by the new rule are local television photographers. The new rule does not impact still photographers from newspapers or other print outlets. All local stations, including affiliates of networks that have rights to televise games, must clear the sidelines 20 minutes before kickoff and they can return to do postgame interviews. Also, local stations are banned from having sets for pre-game shows on the field or anywhere that uses the field as a backdrop.
The NFL says the purpose of the rule is to protect their most important asset, the video content of the games, as well as clearing congestion from the sidelines during games. The NFL also says that stations can continue to show highlights using every play of every game from network telecasts. But local news stations are very upset about the new rule. According to Mike Shipley, news director at KSDK in St. Louis:
It's a question of fairness. It's a question of access. It's a question of creative control over our own storytelling process....We see great disparity in the fairness of this new rule... Our photographers will be kept in a room behind the scenes during the game. Should something happen in the stadium where the game is being played, we won't have the ability to photograph it for reporting purposes. In our role as the surrogate for the public owners of the building, we feel this controlled access is a slap in the face of the people who made it possible for the team to play here by building the Dome with tax dollars. The game itself notwithstanding, there are other reasons why access to the sidelines during a game should be allowed. Other newsworthy events can happen during a game that we would not be able to show you. Over the previous years, we've covered the heartwarming and the tragic with pictures and reporting our viewers have come to trust. That will no longer be possible.
The Detroit News interviewed the sports director of a local station in Detroit:
"It hurts us in so many ways," said Don Shane, sports director of Channel 7. "Therefore, it hurts the fan or the viewers. We care about the product. We care about making it look as good as we can for the fan." Shane contends that personal touches of game-day coverage will be lost. An example is a three-touchdown game by Roy Williams last season in the Lions' 29-21 victory over Arizona. After each touchdown, Williams handed the ball to a different fan in the stands. Channel 7's crew shot each fan. "The network was lucky to show one of those," Shane said. "We had each one of those plays. We went over and interviewed each kid. You no longer will have access to do those kinds of stories."
While the sideline ban may not be "fair" to local stations or to the local fans, the NFL appears to be within their legal rights to impose such a ban. The NFL has the legal right to control the broadcasts of its games. Indeed, networks pay the leagues huge fees in return for the right to broadcast the games. Furthermore, the news does not have any constitutional right to access sports facilities (even publicly funded stadiums) in the name of gathering newsworthy information. A constitutional law professor colleague of mine forwarded me this case quote in support of that proposition: “Where a private commercial venture presents a newsworthy event and grants exclusive rights of coverage to a news
organization, freedom of the press does not confer an equal right of access on other news organizations, even though the event is presented in a facility which is owned and operated by government.� Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981) (case involving a skating championship).
Putting the legal issues aside, is it a good business decision for the NFL to deny access to local television stations? Is this new rule another indication of a movement by the leagues to protect their most valuable asset, the content of their games, and to prevent the unjust enrichment of third parties? -- for example, MLB's disputes with CBC (the fantasy league) and the Slingbox maker. If so, doesn't that make good business sense?
Posted By : Rick Karcher
The Ethics of Dogging It in Little League
Message posted on : 2006-09-06 - 11:52:00
UCLA Law Professor Eugene Volokh picks up on the Ethics Scoreboard's problem concerning a curious event at last month's Little League World Series. Here's the scenario:On August 11 in Bristol, Conn., a Little League team from Colchester, Vt., only had to retire its Portsmouth, N.H. opposition in the top of the sixth inning (Little League games are six innings rather than nine) to win the game 9-8 and move on to the New England regional championship game.
But there was a problem. The Vermont team had made its third out in its half of the fifth inning before player Adam Bentley got to the plate. The Little League has a strict rule that requires every player to bat at least once a game, and the penalty for violating it is forfeit. Vermont's coach Denis Place realized, to his horror, that even though his team had the lead entering the last inning the only way it could avoid losing by forfeit was for Bentley to get an at bat. For that to happen, the New Hampshire team would have to tie the score or take the lead, requiring the teams to play the last half of the sixth inning.
Place held a meeting of his players at the pitcher's mound and instructed them to let New Hampshire score a run. The plan: walk the first batter, and ensure that he made it home with the assistance of wild pitches and intentional errors so the game would be deadlocked at 9-9. Then, hopefully, win the game in the bottom of the sixth inning, with Adam Bentley getting his mandated turn at the plate.
Not so fast. The New Hampshire team's coach, Mark McCauley figured out what was happening and ordered his players not to score. So after a walk and two wild pitches allowed a New Hampshire runner to reach third base, the player refused to advance to the plate despite another wild pitch and a fielding error. McCauley also told his players to strike out intentionally, preserving Vermont's lead but guaranteeing a successful New Hampshire protest that, under the rules, would require that New Hampshire win by forfeit.
This obviously led to a ridiculous spectacle: one team trying to give up a run while the other team was trying to make outs and avoid scoring. The perplexed umpires understandably chose to end the debacle by ejecting Place and his pitcher from the game. Vermont won 9-8 ... and then New Hampshire was awarded the victory by forfeit, because Adam Bentley never got his turn at bat. The New Hampshire team advanced to the next round.
The Question: Whose conduct was unethical? Professor Volokh's take:
the Vermont coach didn't behave unethically (though obviously he did behave negligently by not playing Bentley earlier). I also tend to agree with the Scoreboard that the New Hampshire coach did behave unethically, but I'm considerably less confident about that judgment.
Something oddly similar actually happened to me, and effectively ended my Little League career. My team, the Manoa Orioles, was up against its arch rival, the Nuuanu Dodgers (Manoa and Nuuanu are neighboring valleys on the island of Oahu, and there's some understandable tension). In any event, the regular season series was split, and we faced the Dodgers in the first round of the playoff. My Orioles were crushing the Dodgers, such that the umps invoked the "Mercy Rule" and called the game after five innings (we were winning by something like 17 to 3). We had a team party and went to bed believing we would be moving on to the next round. But, as it turned out, one of our players (thankfully, not me), had not played the minimum two innings. A parent from the other team noticed while reviewing the scorecard, filed a
complaint the next day, and we were awarded a loss by forfeit (the Dodgers then advanced to the next round of the playoffs).
At the time, it was certainly hard to accept that result -- I imagine the Vermont players in the Little League World Series felt similarly robbed. As an Oriole, I wanted at least a chance to replay the game -- and that might have been the fair solution to the New Hampshire-Vermont debacle described above.
With time, however, I've come to rethink a bit my feelings about my own experience. Little league rules requiring each player to come to bat, or play a certain number of innings, are there for a reason. Professor Volokh's assertion that the Vermont coach was merely "negligent" for letting one of his players miss the minimum number of at-bats strikes me as inadequate. Instead, I would argue that the Vermont coach was unethical for not giving that player a chance at bat. Of course one wants to win, but the point of Little League is also to give every player a chance to shine, and to develop skills and experience. It's unethical to keep a player -- even a "scrub" -- on the bench just to eke out a win. Even if the omission could be said to be an "accident," it was likely the result of an improper fixation on winning and an inadequate attention to the smaller, less potent kid sitting on the bench. In my opinion, at the Little League level, it's better for a team to lose with everyone getting to bat than to win relying only on its strongest players.
Posted By : Geoffrey Rapp
Figuring out Jeffrey Kessler's Litigation Strategy for Deion Branch
Message posted on : 2006-09-05 - 19:41:00
Check out this curious statement in an afternoon posting by Michael Felger of the Boston Herald and ESPN Radio:
Furthermore, [Deion Branch's attorney Jeffrey] Kessler revealed today that if Branch loses both grievances, he will then seek damages against the Patriots for extra compensation this year. Kessler said Branch will seek to be paid the difference between what the Pats are scheduled to pay him this season (just over $1 million, minus fines) and the first-year money being offered by Seattle and the New York Jets.
If Branch loses both of his grievances against the Patriots, what grounds would he then have to sue the Patriots or seek arbitration against the Patriots for this alleged "extra compensation"? I could understand such an attempt if he wins his greivance, but if he loses? What contractual or other legally-cognizable obligation would the Patriots have in that instance? Or is Kessler--a hugely successful sports litigator--referring to a third greivance that would be filed if Branch loses the first two? Or has the NFLPA simply decided to make this some kind of test case?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-09-05 - 09:34:00
New this week:Roger I. Abrams, Alcohol, drugs and the National Pastime, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 861 (2006)
Paul A. Fortenberry and Brian E. Hoffman, Illegal muscle--a comparative analysis of proposed steroid legislation and the policies in professional sports' CBAs that led to the steroid controversy, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 121 (2006)
Michael A. McCann, The reckless pursuit of dominion: a situational analysis of the NBA and diminishing player autonomy, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 819 (2006)
Ryan Connolly, Note, Balancing the Justices in anti-doping law: the need to ensure fair athletic competition through effective anti-doping programs vs. the protection of rights of accused athletes, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 161 (2006)
Matthew G. Massari, Note, When fantasy meets reality: the clash between on-line fantasy sports providers and intellectual property rights, 19 HARVARD JOURNAL OF LAW AND TECHNOLOGY 443 (2006)
Jessica J. Penkal, Comment, When legislative regulation strikes out: proving a products liability case against metal baseball bat manufacturers, 67 MONTANA LAW REVIEW 315 (2006)
Ryan Schaffer, A piece of the rock (or the Rockets): the viability of widespread public offerings of professional sports franchises, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 201 (2006)
Matt Williams, Note, Making encouraged expression impercep-tible: the Family Movie Act of 2005 is inconsistent with the purpose of American copyright, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 233 (2006)
Posted By : Geoffrey Rapp
Salaries
Message posted on : 2006-09-04 - 23:32:00
As salaries among professional athletes soar (e.g., the median salary in Major League Baseball is $1 million), it's interesting to compare those salaries to median salary of all Americans. And unfortunately, the news is positive on that front: According to the Detriot Free Press, in 47 out of the 50 states, the median income has dropped. For some states, the drop has been dramatic: in Michigan, the median income has fallen 12%, while in North Carolina and Utah, median income has dropped by 11%. The only states experiencing an increase in median are the sparsely-populated Montana, Wyoming, and North Dakota. Here is the chart:
sfds
Posted By : Michael McCann
Celebrating Labor Day: Is Wall Street or Norma Rae Winning?
Message posted on : 2006-09-04 - 14:10:00
Labor Day is often associated with rest and relaxation. And what better way to rest and relax than to check out a review of recent labor law postings. Paul Secunda and Richard Bales over at Labor Prof Blog have an extensive and engaging post today that does just that. They are hosting the 73rd Edition of the Blawg Review, and what better day for a couple of labor and employment law profesors to host it than on Labor Day.
Interestingly, for each post they discuss--and the postings are from a wide-array of blogs--they declare whether mangement ("Wall Street") or labor ("Norma Rae") won. For instance, they examine our Deion Branch post below and declare the winner to be Wall Street, in this case the New England Patriots (and they do so despite Colin's impressive efforts in the comments section). Be sure to check out Paul and Richard's post, it's both informative and entertaining.
Posted By : Michael McCann
Indiana Appeals Court's Latest Co-Participant Tort Liability Opinion
Message posted on : 2006-09-04 - 11:08:00
Indiana's Courts of Appeals have offered some of the most analytical “sports tort� cases in recent years, such as Mark v. Moser, which attempted to “clearly define the standard of care one competitor owes another in a sporting event� and has found its way into one of the leading sports law casebooks, as well as more recent cases limiting the Mark rule, such as the one I discussed in this post.
On Thursday, the court published Bowman ex rel. Bowman v. McNary, 2006 WL 2506680 (Ind. Ct. App. Aug. 31 2006). One member of a high school girls' golf team sued a teammate after the teammate 
unintentionally struck her in the head with a golf club during a driving-range practice (leading to blindness). In a footnote, the court notes “an increase in golf-related head injuries in recent years, particularly in children under age nineteen, as participation in the sport has increased, with those injuries being caused by mis-swung clubs, errant balls, and golf cart accidents.�
The Bowman court reaffirmed its commitment to the principle articulated in Mark v. Moser, namely that “as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent or foreseeable dangers of the sport.� However, the court acknowledges that its “rationale for the rule originally stated in Mark has not been constant.� Sometimes the court has focused on the doctrine of “assumption of risk�, sometimes on the “absences of a legal duty�, and other on its concern to avoid chilling vigorous participation in recreational and competitive athletics.
The opinion offers a nice tour of Indiana law on this issue.
Posted By : Geoffrey Rapp
Tony Allen's Trial: Contemplating Guilt
Message posted on : 2006-09-03 - 16:33:00
I have a guest piece on Celtics Stuff Live entitled "Tony Allen's Trial: Contemplating Guilt." It examines Celtics guard Tony Allen's upcoming trial for aggravated battery, including an analysis of the probability of guilt and, if he is found guilty, what factors might sway the judge in his sentencing. I also consider broader implications of the trial. Here's an excerpt:
Allen's saga, like that of many professional athletes who run into trouble, invites sobering thoughts as to why many athletes run afoul of the law. Our reactions to their legal troubles might also be worth examining, especially if they tell us something about ourselves. Interestingly, social psychologists find that we tend to instinctually blame the actors closest to the crime, and we do so because it's really easy to imagine their role in bringing about a crime. Here, if the charges are true, we can readily visualize Tony Allen ordering the shooting. Pretty basic, and blame seems easy to affix. In that analysis, of course, we miss whether background factors, social context, and situational pressures could have influenced Allen, or helped bring him to that fateful moment, and whether responsibility extends to other actors as well. Really, what would bring a young man like Allen-who has wealth, youth, and fame- to order a shooting in a Chicago diner at 3 a.m.? Is it solely a reflection of his “bad choices,� “stupidity,� and “immaturity,� or is there something else going on as well?
I'll also be a guest on Celtics Stuff's Internet radio show tonight. The show begins at 9 PM (Eastern Standard Time), and I'll be interviewed at 10 PM. For more details, click on this link. We'll discuss Allen's trial and some other legal issues facing the NBA. Another guest will be Henry Abbott of True Hoop. It should be fun and I hope you get a chance to listen tonight or later when the show is archived. Also, thanks to Celtics Blog and Real GM's Celtics Board for promoting tonight's show.
Update (9/4/2006): the show can be heard at any time at this archived link. I come on in the middle of the show, at about the 1 hour and 5 minute mark. It was fun to be on, and I hope you get a chance to listen.
Posted By : Michael McCann
Broken Deal to Deal? Deion Branch Files Grievance Over Patriots' Refusal to Trade Him
Message posted on : 2006-09-01 - 19:39:00
In what seems like an unprecedented move, New England Patriots holdout wide receiver Deion Branch has, through the NFLPA, filed a grievance against the team because it won't trade him. Branch, who was the MVP of Super Bowl XXXIX, is entering the last year of his five-year rookie contract
And in the last 24 hours--and perhaps to the surprise of the Patriots--Branch has received two lucrative six-year contract offers, from the New York Jets and Seattle Seahawks, in the $36 million to $39 million range, with $13 million worth of guaranteed money. So he got what he thought he was worth. But here's the problem: both teams have apparently offered one second round pick and an established wide receiver (Laveranues Coles is said to be the Jets' offered player), whereas the Patriots are demanding two first round picks. To me at least, that seems like a rather pricy extraction for a 26-year-old player who has never had 1,000 yards receiving or caught more than 78 passes in a season.
And therein lies the essence of Branch's grievance: he contends that the Patriots are undervaluing his financial worth, but overvaluing his trade value, and they shouldn't be able to have it both ways, especially since they agreed to deal him for a "fair and reasonable" return. The NFLPA, led by attorney Richard Berthelsen, agrees that the Patriots have "reneged" on their deal, and that the team should be required to trade Branch.
On the other hand, what the heck does "fair and reasonable" mean, and who should get to decide that? Moreover, should players be able to "force" teams to trade them? A special master--who works for both the NFL and NFLPA--will decide all of that in the coming days in an emergency hearing.
My prediction: if the Patriots don't trade him over the weekend, Branch will lose his grievance, because for a special master to command the Patriots to trade him could set a curious and likely undesirable precedent whereby players could use the greivance process to compel not only trades, but the return teams obtain in those
trades.
Update (9/2/2006): Through the NFLPA, Branch has filed two grievances against the Patriots. The first alleges that the Patriots broke their pledge to trade him for a "fair and reasonable" return. That claim is addressed above, and will be heard in the next seven days by one of two special masters, Professor John Feerick of Fordham University School of Law or arbitrator Shyam Das. Branch will be represented by NFLPA general counsel Richard Berthelsen, outside counsel Jeffrey Kessler, and his personal attorney, Peter Ginsberg. The second grievance alleges that the Patriots failed to negotiate in good faith over Branch's contract extension. It will be heard by special master Professor Stephen Burbank of the University of Pennsylvania Law School, although no date has been scheduled.
Posted By : Michael McCann
Boras Almost "Steals" Another One
Message posted on : 2006-09-01 - 09:15:00
Four months ago, I discussed the merits of a complaint filed with the MLBPA against Scott Boras by Jim Munsey, the agent for Atlanta Braves catching prospect Jarrod Saltalamacchia, for soliciting his client in violation of MLBPA agent regulations. Boras' solicitation efforts involving the Braves prospect were ultimately unsuccessful, but I'm told by a reliable source that the fallout of Munsey's complaint was that the union (not surprisingly) just simply told Boras to stop doing it. Well, as one would expect, that didn't create any deterrence for Boras to stop soliciting other agents' clients.
Early last week, ESPN reporter Jerry Crasnick (and author of the book License to Deal) wrote that Carlos Lee, one of the top offensive players on the free-agent market this winter, informed the Texas Rangers that he was leaving his agent of eight years, Adam Katz, for Boras. However, just two days later, Crasnick reported that Lee changed his mind and went back to Katz. Crasnick's article begins by stating that Lee can expect to receive a multiyear contract this winter for at least $60M and then he poignantly notes, "The question is, which agent is going to collect the commission?"
Crasnick is right on, because that's what it's all about. The commission fee arrangement in the sports agent business is what fuels client solicitation and other agent misconduct. In fact, the economics are such that agents have a huge incentive to solicit and make all kinds of false promises to prospective clients. Think about it. If Boras makes a nominal investment in trying to land Lee as a client and just negotiates one contract for Lee this winter, Boras' standard 5% commission lands him a handsome $3M fee! So why wouldn't Boras and other agents have the incentive to spend a few grand soliciting (sorry, I mean "recruiting") Lee and doing what ever it takes to represent him? I discuss this issue in depth in my forthcoming article in the Willamette Law Review, which will be released in the upcoming weeks.
Posted By : Rick Karcher
Jerrell Powe Sacks the NCAA
Message posted on : 2006-08-31 - 23:03:00
Jerrell Powe, a prized football recruit for the University of Mississippi, has secured an important court victory in his quest to gain NCAA eligibility. Here's the story: Powe, rated as the country's top defensive tackle prospect and a top 25 overall prospect, is a learning disabled student who has played at Wayne County High School in Mississippi and also Hargrave Military Academy in Virginia (coincidentally, the same school where former NBA player Korleone Young, who I often write about, attended). But Powe received some bad news last week, when the NCAA declared him ineligible due to insufficient academics: he had to obtain a 2.50 GPA in "14 core high school classes" and a 17 on his ACT and while Powe scored an 18 on his ACT and finished with a combined high school GPA of 2.54, the NCAA apparently believes that Powe's GPA reflects too many correspondence classes at Brigham Young University, and also "too many irregularities in his high school course work and transcripts." The NCAA also alleges that Powe has repeatedly refused to "clarify" certain questions that it has about his course work.
In fairness to the NCAA, remember the context of its thinking here: it has been harshly criticized in recent months over "diploma mills" that enable high school football prospects to radically improve their GPAs, including by taking un-timed exams that they grade themselves (see our blog's coverage of Florida's infamous "University High School"). Having said that, there is no apparent evidence that Powe has received that style of "schooling" on his way to a 2.54 GPA. But still, the NCAA is probably uniquely sensitive to the topic of academic standards at this time.
But the NCAA may not have the final word. For one, Ole Miss doesn't want to lose one of its top recruits, so it immediately filed an appeal with the NCAA on behalf of Powe.
But Powe isn't waiting for the appeal to be heard. Instead, he has hired a lawyer: Attorney James Carroll (right) of Carroll, Warren & Parker in Jackson, Mississippi. And the move appears to be a good one, as several hours ago, Carroll secured a temporary restraining order requiring that Ole Miss enroll Powe. Here's the story from Robbie Neiswanger and Rusty Hampton in the Clarion Ledger:
Lafayette County Chancery Court Judge Edwin Roberts Jr. said Ole Miss must allow
Powe to enroll in school by Friday — the final day students can enroll for the fall semester. Roberts also said in court papers that because Powe has met the NCAA's minimum requirements for academic eligibility, Powe should be placed on athletic scholarship and be allowed to practice with the team, in accordance with NCAA rules and the binding scholarship papers Powe and the university signed in February.
So what will Ole Miss do: follow the NCAA or follow Judge Roberts? Although the University has no comment (other than "it's an unprecedented situation"), I think the answser is fairly obvious: follow the judge. Not matter how much the NCAA likes to flex it's muscle, it can't expect Ole Miss to pick it over a judge and face contempt of a court order.
**Please See 9/17/2006 Update: Jerrell Powe Drops Lawsuit Against Ole Miss: Where Will He Now Play Football?
Posted By : Michael McCann
An Accommodationist Season Begins
Message posted on : 2006-08-31 - 12:18:00
College football begins here in Toledo at 8:00 pm EST tonight when the Toledo Rockets game against the Iowa State University Cyclones arrives via satellite. The other games of the day are the ESPN-featured Mississippi State – South Carolina matchup and Northwestern's game at Miami of Ohio, which has been dedicated to the memory of late NWU coach Randy Walker.
This season promises to be an interesting one for college football and the once-embattled Bowl Championship Series (BCS). Longtime readers will recall early postings which questioned the legality of the BCS arrangement under federal antitrust laws, such as Greg's post from November 2003, Rick's post from October 2005, Mike's December 2005 post and guest-blogger Chad McEvoy's December 2005 post.
This season represents the first to be played under a “five-bowl� BCS system. The fifth bowl was agreed to back in 2004 as part of an effort to ward off threatened antitrust action against the BCS and its privileged conferences. Under the new system, the champion of a mid-major conference like the Mid-American Conference (MAC), Western Athletic Conference (WAC), or Conference USA can earn an automatic BCS bid provided that:a. Such team is ranked in the top 12 of the final BCS Standings, or,
b. Such team is ranked in the top 16 of the final BCS Standings and its ranking in the final BCS Standings is higher than that of a champion of a conference that has an annual automatic berth in one of the BCS bowls.
However, if two or more mid-major champions would qualify under these rules, only the higher BCS-ranked team would earn an automatic berth, while the other would be limited to consideration for an at-large berth (something that, while possible, remains unlikely).
The additional bowl and possibility of an automatic berth for a mid-major conference champion drastically reduce the likelihood of an effective Sherman Act challenge against the BCS, if for no other reason that the odds are there won't be two such teams in a given year. Since only an undefeated, mid-major conference champion would have standing to challenge the BCS system, the new approach takes away that potential plaintiff. Now, one would likely need two undefeated mid-major champions (or possibly one-loss teams with quality wins over major conference opponents) for there to be one excluded team legally capable of raising a challenge.
For those who still dream of a college-football playoff, I guess all this means cheering for the likes of Utah, TCU, Northern Illinois, Tulsa and Toledo.
Posted By : Geoffrey Rapp
What's Wrong with Tony Kornheiser
Message posted on : 2006-08-29 - 15:05:00
The hiring of Tony Kornheiser for the Monday Night Football announcing team continues an unfortunate trend. Increasingly, commentators don't talk about the game they are supposedly covering. Instead, they talk about "sports issues," usually sports law issues, while the game goes on in the background. Both baseball and football give us the worst of this, as the many dead spots during the action give ample room for the commentators to pontificate about the state of the game, the commissioner's doings, player-manager disputes, and the like. Last year's MNF team, John Madden and Al Michaels, distracted the viewer constantly from game action, especially when the score became even a little one-sided. It's as if the commentators prepare with talking points instead of game film.
But why employ ex-jocks or former coaches to try their unpracticed hands at this brand of meta-commentary when one can get a pro? Hence the hiring of a full-time, experienced opinion-maker like Mr. Kornheiser.
Maybe it's just personal preference. I don't want to watch the Sports Reporters or Bryant Gumbel when I tune in to a football game. It's the game match-up that draws me, not a chance to hear Kornheiser pontificate or Dennis Miller offer canned one-liners. The constant argument is distracting. I used to go to a church that played music during the recitation of prayers. Who thought this up? Who thinks this is a good idea, to say to the audience we're going to do one thing, lure them to the activity of that thing, and then, while doing that thing, distract them with something else? Ads for MNF hype the upcoming game and its stars; they don't say tune in to hear someone give brief, offhand opinions on close issues. I no more want to hear Tony speculating on the legality of mandatory drug testing while a halfback runs off tackle than I want to hear soft rock music kick in while I'm reading from a prayer book. It's also frustrating. Joe Theismann can explain how a quarterback reads defenses, but he's obviously not very adept at trading arguments with a professional writer who in high school had his head in Latin conjugations while Joe had his arm around a cheerleader.
No, the fair opponent for Kornheiser's attempts at quick intellectualisms would be the nemesis who helped make his career, Michael Wilbon. I enjoy PTI. I love MNF. I also have a TIVO. If for some bizarre reason I want to watch the two shows simultaneously I could make it happen. There might be a few folks for whom this sounds appealing, but I suspect not most of us. I like my expert football commentators to be expert in football.
Posted By : Jeffrey Standen
Muslim Footballers Sue New Mexico State for Religious Discrimination
Message posted on : 2006-08-29 - 09:28:00
My colleague Howard Friedman's Religion Clause reports that three Muslim students dismissed from the New Mexico State football team have sued the school and coach for religious discrimination. The students are represented by the ACLU. As Howard explains, The suit, filed on behalf of Mu'Ammar Ali, Anthony Thompson and Vincent Thompson by the ACLU of New Mexico, alleges that Mumme made Muslim students feel like outcasts, questioning Ali about his attitudes toward al-Qaida. Coach Mumme had other players recite the Lord's Prayer after practices and before each game, but made Muslim players pray separately. A University investigation of the charges found no evidence of religious discrimination.
While forced recitation of the Lord's Prayer (or any prayer) before a game is objectionable, cases like this face an uphill battle. Part and parcel of the American idea of football coaching is the paradigm of coach-as-tormentor. Comments that might be insulting, or even actionable, in a normal setting, are commonplace and expected in the post-game locker room.
Posted By : Geoffrey Rapp
Should male college athletes be allowed time off for paternity leave?
Message posted on : 2006-08-28 - 18:40:00
That's the question posed by a pending lawsuit filed against the NCAA by Kansas defensive tackle Eric Butler, who was denied an extra year of eligibility by the NCAA after missing the 2001 season following the birth of his daughter, Angelina (Kelly Whiteside, USA Today, 8/24/06, "Suit tests ban on leave for father-athletes"). NCAA regulations give a student-athlete 5 years to complete 4 years of playing season eligibility. However, the NCAA's pregnancy exception states a school "may approve a one-year extension of the five-year period of eligibility for a female student for reasons of pregnancy." Butler brought a federal civil rights claim alleging the NCAA violated Title IX since its pregnancy waiver applies only to females. A U.S. District Court has already denied Butler's request for a temporary restraining order, and Butler has requested emergency relief from the United States Court of Appeals for the Tenth Circuit because Kansas' season opens Sept. 2 against Northwestern State.
Butler argues that the NCAA should give college athletes the same opportunities that people in the normal workplace have, citing the federal Family and Medical Leave Act of 1993 which gives men who work at companies with 50 employees or more the right to take up to 12 weeks of paternity leave. Experts for the National Women's Law Center say that if eligibility is extended for child rearing then it should extend equally to men, but if eligibility is extended because of the physical effects of pregnancy then it should not extend equally to men. And the NCAA's position is that the rule explicitly states that it only applies to female students whose physical condition due to pregnancy prevents their participation in intercollegiate athletics.
The legal question in this case for purposes of establishing a Title IX claim is simply whether the NCAA's rule "discriminates on the basis of sex". I don't think it does. The rule doesn't treat women different from men; it treats pregnant women different from men as well as non-pregnant women. Many women (those who are not pregnant) are treated the same as men under the rule, and thus the rule does not treat similarly situated persons differently on the basis of sex.
But even if the rule does treat people differently because of, or on the basis of, their sex, disparate treatment prohibits "unjustified" sex-based distinctions. A rule that discriminates on the basis of sex is justified if the rule is necessary to address the special needs of a particular sex. For example, a rule that prohibits female students from participating in contact sports with male students is justified based upon the physical differences that exist between men and women. Here, the pregnancy exception is necessary because pregnant women can't physically participate in collegiate athletics.
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2006-08-28 - 08:32:00
New this week:Aaron J. Hershtal, Note, Does Title IX work after school? California applies the three part test to municipal sports, 12 CARDOZO JOURNAL OF LAW AND GENDER 653 (2006)
Lacie L. Kaiser, Comment, Revisiting the Sports Broadcasting Act of 1961: a call for equitable antitrust immunity from section one of the Sherman Act for all professional sport leagues, 54 DEPAUL LAW REVIEW 1237 (2005)
Toni Wehman, Comment, Not part of the game plan: school district liability for the creation of a hostile athlete environment, 77 UNIVERSITY OF COLORADO LAW REVIEW 767 (2006)
Posted By : Geoffrey Rapp
FIFA Election Monitors En Route to Nigeria
Message posted on : 2006-08-26 - 13:51:00
Back in May, I posted on FIFA efforts to suspend Cambodia's soccer federation after the ruling government engaged in manipulation of the federation's elections. In an effort at preventative shaming, FIFA has now decided to deploy election monitors to Nigeria to monitor Tuesday's election of a president for the country's soccer association. Given Nigeria's soccer prowess (currently 11th in FIFA's questionable world rankings), the state of soccer in that country is of far more international concern. Five candidates are vying for the soccer association's presidency. Although the candidates have engaged in a televised debate, critics have charged that few hard questions about candidates' ethics were raised. In a country where all major political parties have been charged with election rigging, it's no surprise that a soccer association could fall victim to the same sad state of affairs (as Greg noted in March, Nigerian soccer refs are permitted to accept bribes). Hopefully, international attention will be more lasting and effective than it has been in Nigeria's political arena.
Posted By : Geoffrey Rapp
Why Do We Love Hating Maurice Clarett?
Message posted on : 2006-08-24 - 12:36:00
Harvard Law professor Jon Hanson and I have an op-ed in today's Providence Journal:
Jon Hanson and Michael McCann: The psychopathology of athlete worship
Providence Journal
Thursday, August 24, 2006
CAMBRIDGE, Mass.
TO SPORTS FANS, it probably wasn't a surprise to learn that former Ohio State University football star Maurice Clarett was arrested again the other week. The evasive running back who had carried the Buckeyes to the 2002 National Championship was unsuccessful in evading the police in a car chase that occurred near the home of a witness in his upcoming robbery trial. As if his location and the arsenal of four loaded guns in his car weren't suspicious enough, Clarett was sporting a Kevlar vest at the time.
Much like Clarett in his glory days, the story has legs, powerful legs. Everyone has now seen the post-arrest photos of Clarett, dressed in a jail-issued jumpsuit and looking beleaguered. Sports writers around America have penned countless condemnations of Clarett and his bad life choices. The following sample of news headlines give a flavor of the indignation:
"After Saying He Had Changed, Clarett Goes Down Familiar Path" (The New York Times).
"Maurice Clarett in Dire Need of a Reality Check" (The Philadelphia Inquirer).
"Clarett's Misplaced Sense of Manhood Meant Nothing but Trouble" (The Akron Beacon Journal).
Editorialists ratcheted up the righteousness. Scott Soshnick, of Bloomberg News, told readers in a column entitled "Maurice Clarett Doesn't Deserve Your Sympathy": "Clarett has no one but himself to blame for his latest incarceration." An editorial said, "all [Clarett] ever has been is a knucklehead." Another, entitled "Don't Cry for Clarett," attributes his failings to "self-absorption," "ego, and arrogance."
Letters to The Columbus Dispatch got even nastier (Ohio State is in Columbus). One: "Big Mo's actions only confirm what my pappy always said: 'Beauty is only skin deep, but stupidity goes clear to the bone.' " Another called for "a citywide ban against Maurice Clarett," saying that "[a]nyone wearing No. 13 this year during Buckeyes games should be encouraged to burn their jersey."
It is obvious that people care about this story; what isn't so clear is why. Why are Americans so interested in an event that, with a different culprit, would have spread no further than the local crime blotter? And why are so many sports writers preoccupied with a man who never played a down in the National Football League and who hasn't played college football in over three years? Most perplexing, why the vitriol? Why do we pile insults on a young man who is already a has-been?
Is it because a young black man was arrested and jailed? Nope. After all, we barely notice that over 15 million Americans are arrested each year and one out of every four black men will go to prison in his lifetime.
Might it be because he was carrying concealed weapons? Uh-uh.
Thousands of people are arrested each year for that, and it is not a crime that elicits general outrage. In fact, more and more states are passing laws making it easier to carry a concealed weapon.
To understand why we Americans enjoy villainizing certain sports figures (Ron Artest, Terrell Owens, Rafael Palmeiro, Lawrence Phillips, Mike Tyson), it is helpful to understand why we make super-heroes of others.
Consider the most celebrated athlete in recent memory, Lance Armstrong. He has been the recipient of too many accolades to count, including Sports Illustrated's "Sportsman of the Year," the Associated Press's "Male Athlete of the Year" (four times), and ESPN's ESPY Award for "Best Male Athlete" (again, four times). Is Lance talented and successful? To be sure. And, yes, he won the Tour de France seven times -- more than any rider in history.
But those successes alone are not what make Armstrong our hero. In fact, not long ago Americans cared as much about French cycling races as they do about English cricket tournaments. In Armstrong's case, it wasn't so much the race that made the man; it was the man who made the race. And what we admire in this man is not that he is a winner, but that he is a winner after having nearly lost his life to testicular cancer.
We love loving Lance because his success confirms our faith in the power of perseverance. The message for us all is the American creed: We can overcome our situation, no matter how grim, if only we work hard and choose wisely.
Consider also ESPN's award for the "best sports moment of the year." In the single basketball game that Jason McElwain played in high school, he scored 20 points in just 240 seconds. Sure, that was an outstanding accomplishment, but what made it the "best moment" is that "J-Mac" is autistic and had spent the rest of the season as the team manager.
Oh, we love those stories! Indeed, we pay good money to see movies about fictional sports figures (from Radio to Rudy to Rocky) who overcome their situations.
This brings us back to the more tragic Clarett story. Why do we love hating Maurice? For the same reason -- just from a different angle. Clarett was at the cusp of fame. Had he simply chosen better, as one editorialist wrote, Clarett "would be signing autographs in some National Football League training camp right now. He'd be the face of a franchise. He'd be a millionaire. He'd be wearing Nike shoes and getting paid to do it. He'd be posing for magazine covers and billboards, instead of mug shots."
The message of Clarett's story is just the flip side of the same creed: If we work hard and make good choices we will succeed, but if we are lazy and make bad choices, we will fail.
And why do we love that message? Social science provides several reasons, but among the most important is our subconscious craving to believe that our world is just and that anyone can overcome circumstances. When our heroes are "good guys" who make "good choices" and our villains are "bad guys" who make "bad choices," that craving is satisfied.
If someone succeeds, he deserves it; if someone fails, he has no one but himself to blame. Feels good.
Jon Hanson and Michael McCann -- professors at, respectively, Harvard Law School and the Mississippi College School of Law -- are writing a book on how sports shape beliefs about law and policy.
Posted By : Michael McCann
Hollywood Talent Firm Consolidates Sports Agent Biz
Message posted on : 2006-08-23 - 17:25:00
SFX, Octagon and IMG, collectively, once dominated the player representation business. Consolidation in the sports agency industry involving these companies, which began in 1995, dramatically changed the sports agent market and transformed the industry from a "mom and pop" environment into the world of big business in which few independent sports agents remain prominent today. [However, one independent agent, Scott Boras, continues to flourish in the baseball industry and is arguably the most dominant agent in any single sport. In 2005, Boras virtually controlled the free-agent market in baseball by signing six premium free agents to more than $400 million worth of deals.]
This year, the agent business was consolidated even further with Creative Artists Agency's decision to buy and merge the practices of former IMG football agents Tom Condon and Ken Kremer and former SFX football agents Ben Dogra and Jim Steiner. In an instant, the merger created the largest NFL player representation firm in the country, with about 140 players, including stars such as Shaun Alexander, Peyton and Eli Manning, and Carnell “Cadillac� Williams. CAA, a Hollywood talent firm, also purchased IMG's baseball practice lead by Casey Close.
When a company purchases a sports agent business, what is it really buying? The primary assets consist of the player-agent representation agreements. But the players association regulations governing agents in all four sports permit the players to terminate these agreements at will upon just a few days notice. And players frequently switch agents, so there is a risk that some of the agency's clients will not even be the agency's clients at some point or another after the sale. So in essence, the buyer is really just purchasing the future commissions owed by the player to the agents under these agreements. [The regulations only permit commissions to be paid to the agent as and when the player is paid his salary during the term of his player contract.]
The other primary asset purchased consists of the individual agents themselves via an employment agreement with the agent. But here too, it is very common for disputes to arise between individual agents and the agency that employs them, and the agent ends up leaving and takes clients with him resulting in a lawsuit. In the July 31 edition of the Sports Business Journal, Liz Mullen notes that many agents are speculating how long the marriage will last at CAA:
No sooner was the deal announced than other agents started saying it would never work. They reasoned that egos would clash, that players might shy away from being represented by what one agent called “a monstrosity,� and that Condon, long recognized as the most powerful NFL agent, and Dogra, an up-and-comer, would struggle over issues such as who would recruit which players. Arn Tellem, the prominent basketball and baseball agent who was formerly CEO of SFX Sports and is now CEO of athlete management for Wasserman Media Group, said that the most successful agents are extremely competitive and have a hard time working with their former competitors. “It is not in most agents' nature to make it work,� Tellem said.
Another legal issue that arises from consolidation in the industry is the increased potential for conflicts of interest. Such a conflict can arise when an agency represents two or more similarly situated players at the same time who are competing for a finite number of available positions in the league, or, even if not competing for the same position, competing for a pool of available dollars that teams are willing to spend on players at that particular time. Representing over 140 NFL clients means that CAA is representing an average of 5 players per team. At some point, CAA will be negotiating contracts at the same time for multiple free agents competing for a job. An agent owes a fiduciary duty (duty of loyalty) to serve the best interest of each individual client, and it will be difficult
for CAA to do so in this scenario. The NFLPA will be closely monitoring this situation.
Posted By : Rick Karcher
Comparing Baseball Salaries to Income Inequality in the United States
Message posted on : 2006-08-22 - 21:19:00
Kevin Drum of Washington Monthly (probably my favorite non-sports blog) has a very interesting post on growing income inequalities in the United States, as he uses the growth of baseball salaries to explain his position (which, in sum, is that while aggregate wealth keeps increasing in the U.S., the rich and powerful have the greatest access to it, so they take most of it):
[I]t's not just the top 20% who have gained relative to the bottom 80%, it's also the top 1% who have gained relative to the 10% just below them. Do we really believe that the top 1% have an enormous educational advantage compared to the top 10%? And that this gap has increased over the past 50 years?
Consider professional baseball. Today's top players routinely sign contracts that pay them $5 million a year. A-Rod signed one that paid more than $10 million. But 50 years ago, the highest paid player earned about $300,000 (in inflation-adjusted terms). Why the 30x increase?
It's certainly not because A-Rod is relatively more valuable to the Yankees' pennant chances today than, say, Mickey Mantle or Roger Maris were in their day. Rather, what's happened is that there's fantastically more money sloshing around in professional baseball than in the past thanks to skyrocketing TV, radio, and merchandise sales. More money means higher salaries. But that's not automatic, of course. There's another piece to the baseball puzzle: in 1966 the baseball players union hired Marvin Miller, a former negotiator for the U.S. steel workers, to head their organization. In 1972 they went on strike, and ten years later the reserve clause was history, free agency was in full swing, and player salaries were going through the roof. This is not a coincidence.
Similarly, the broader economy has grown enormously in the past few decades, but without a Marvin Miller on their side almost none of this growing pile of money has gone to middle class workers. And this, I believe, is the root cause of skyrocketing income inequality: economic growth combined with stagnating median wages has produced a colossal amount of extra money sloshing around in the system, and it has to go somewhere. And since the rich and powerful run the system, where else is it going to go but to the rich and powerful? They aren't going to dole it out to the less fortunate out of the goodness of their hearts, after all.
Alright, I'll admit it: I inserted the A-Rod picture above, which depicts his infamous and feeble attempt to knock the ball out of Bronson Arroyo's glove in Game 6 of the 2004 American League Championship Series (sorry, the Yankees' five game sweep of the Sox this past weekend still has me aggravated). But going back to Drum's post, he mentions Marvin Miller. Miller as you know, was a labor economist who served as executive director of the MLBPA from 1966 to 1982. During that time, and as Drum notes, he radically improved the rights and earning capacities of the baseball labor force.
So is Drum right: Does our country's middle class lack a "Marvin Miller type figure," and does that in part explain why so many in the "middle class" seem worse off than the "middle class" of years ago? I suppose some might describe Ralph Nader as the Marvin Miller of the middle class, although Nader, while influential, has not been in charge. What do you think?
Posted By : Michael McCann
Floyd Landis and Justin Gatlin Doping Scandals: Should Congress Get Involved?
Message posted on : 2006-08-22 - 15:02:00
Chris Graham of the Augusta Free Press has an excellent article on whether Congress should conduct new hearings on performance-enhancing drugs in the wake of the Floyd Landis and Justin Gatlin doping scandals ("The Politics of Steroids," Aug. 20, 2006). As you know, Landis is an American cyclist who won the 2006 Tour de France and who was recently fired from the Phonak team after a positive doping was confirmed, while Gatlin is an American sprinter who holds the world record in the 100 meter sprint and who also recently tested positive for doping. Graham wonders if Congress might consider holding hearings on doping in sports, much like it did in 2005 in the wake of the baseball steroids scandal.
Graham interviews several people for the story, including me:
"I would be surprised if Congress acted again on this issue in the near future," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog. "This certainly has garnered the attention of the sports world. But with elections coming up, with the war in Iraq, with Israel, it doesn't seem as if there is a window of time to address this," McCann told The Augusta Free Press.
Bob Thompson, the director of the Center for the Study of Popular Television at Syracuse University, points to another issue that could be serving to hold back congressional action. "I don't feel yet like we've really reached that point of total public outrage all united together in one sort of voice," Thompson said . . .
Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, thinks it is wise of Congress to steer clear of getting involved in the issue any more than it has. "The issue here is that there really isn't any right or wrong about what to ban or prohibit in sports once you get past risk," Caplan said . . .
Paul Haagen, the co-director of Center for Sports Law and Policy at Duke University, offers two other reasons for Congress to keep its nose out of the regulatory end of things. "With the international sports, I think there is a really strong case that this ought to be left to the World Anti-Doping Agency - and the reason for that is when you're dealing with international competitions, there's a lot of suspicion from country to country that individual countries are protecting their athletes, that they're not interested in rooting this out . . ."
Check out the story for more. Do you think Congress should get involved at this time, or ever?
Posted By : Michael McCann
World Series of Poker Champion to Face Lawsuit? SPOILER WARNING
Message posted on : 2006-08-22 - 12:51:00
For those still awaiting ESPN's September 26 broadcast of the August 10 World Series of Poker Main Event final table to find out who won it all, please STOP READING NOW.
The Las Vegas Review Journal gossip column reports that WSOP main event champion Jamie Gold may soon face a lawsuit from financial backers who will seek to claim some share of his WSOP $12 million payday.There are rumblings of an "explosive" development in a story rife with more twists than an episode of "The Sopranos."
An insider says look for court challenges over whether Gold agreed to divvy up a share (or shares) of the $12 million prize he won at the World Series of Poker's main event Aug. 12 at the Rio.
* * *
Yes, Gold was sponsored by the gaming site, bodog.com, Horn said. But, "He will be an ambassador. No money was involved."
An Internet report claimed Gold's sponsor would get 50 percent.
According to the same article and to the Defamer blog, Gold is also coming under fire for alleged exaggerations and misrepresentations of his background and career as a Hollywood agent.
UPDATE (8/25/06): Yesterday, news broke that a lawsuit had been filed against Gold by another Hollywood promoter (rather than bodog.com). A judge has issued a TRO preventing the Rio from paying out half of the $12 million prize.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-08-21 - 08:50:00
New this week:Kevin J. Cimino, Note, The rebirth of the NBA - well, almost: an analysis of the Maurice Clarett decision and its impact on the National Basketball Association, 108 WEST VIRGINIA LAW REVIEW 831 (2006)
Jonathan Deem, Note, Freedom of the press box: classifying high school athletes under the Gertz public figure doctrine, 108 WEST VIRGINIA LAW REVIEW 799 (2006)
Leslie Ann Dougiello, Casenote, Inequitable procedures win gold in Olympic arbitration, discussing Jacobs v. United States Track & Field, 374 F.3d 85, 2d Cir. 2004, 24 QUINNIPIAC LAW REVIEW 887 (2006)
Posted By : Geoffrey Rapp
Are golf courses good for economic growth?
Message posted on : 2006-08-19 - 17:40:00
At the Conglomerate Blog, Maryland Law Professor Lisa Fairfax asks whether building golf courses can spur economic growth in developing countries. She's done some research on the subject, and found studies that indicate golf courses promote growth. While there are some obvious endogeneity issues here, I wonder whether the same can be said for American states. Is building golf courses a route to economic development?
Posted By : Geoffrey Rapp
Golfer's Suit Against Agent Heating Up
Message posted on : 2006-08-18 - 16:02:00
Discovery battles have surfaced in pro golfer David Toms' suit against his agent, Links Management Group, LP. In a slip opinion available at 2006 WL 2355865, a federal magistrate judge denied Toms' motion to compel a deposition of Chad Campbell, another golfer and client of the same agent. Toms' lawsuit claims, as reported by a Baton Rouge TV station, "breach of contract, breach of fiduciary duty -- not looking out for Toms' best interest -- and seeks the termination of the contract and compensatory damages with interest." The federal magistrate elaborates:Plaintiff's lawsuit generally alleges that he and Defendant are parties to a written contract; that Defendant breached the contract by not diligently developing, negotiating or managing prospective merchandising endorsements or sponsorships for Plaintiff; that Defendant alienated existing clients and other business associates of Plaintiff; that Defendant has not treated Plaintiff fairly, preferring instead to promote other golfers at the expense of Plaintiff; that Defendant has recouped fees to which it is not entitled under the contract; that Defendant held large endorsement checks for long periods of time, thereby depriving Plaintiff of interest on the money . . . . The petition asserts claims for breach of contract, breach of fiduciary duty, rescission of the contract, and unjust enrichment. Plaintiff also seeks a declaratory judgment regarding termination of the contract.
The relationship between professional athletes and agents -- and the fiduciary law issues posed by breakdowns in the relationship -- is one of the most interesting and challenging areas of sports law. This case will be one to watch for a later substantive opinion.
Posted By : Geoffrey Rapp
NHL "Stealing" Russia's Star Hockey Players?
Message posted on : 2006-08-17 - 15:20:00
There's an interesting story released this week on NHL.com as well as in USA Today about hockey star Evgeni Malkin, who bolted from his Russian professional hockey league team, the Metallurg Magnitogorsk, last Saturday after it arrived for training camp in Helsinki, Finland. Malkin is widely considered the best in the world not currently playing in the NHL. Malkin's agents in the U.S. will not confirm where he is at the moment, though they believe he is "out of harm's way". This is good news for the Pittsburgh Penguins because, although Malkin is currently under contract with Metallurg, they own the rights to Malkin here in the States as he was their No. 2 overall pick in the 2004 draft. Now that he is out of Russia, Malkin is expected to sign with the Penguins, if he hasn't already done so, and report to their rookie camp. However, Metallurg general director Gennady Velichkin is threatening legal action against the Penguins: "We all are really shocked by his departure and we will take legal actions against the NHL club Penguins from Pittsburgh. Americans like to speak about democracy and teach the whole world how to live but engage in sport terrorism and simply steal people."
In the U.S., it is well established that if a player under an existing contract "jumps ship" and signs a contract with another team in a different league, the team that loses the player would generally have two claims. First, the team could sue the player for breach of contract and seek a court order by way of a "negative injunction" to prevent the player from playing for the new team. Second, the team could sue the new team on a tort claim for intentional interference with contractual relations if the new team signs (or attempts to sign) the player to a contract that overlaps with the player's term under his existing contract. However, the new team is not prohibited from negotiating a contract with the player for a term to commence after the expiration of the term under the player's existing contract because, from a policy standpoint, courts are sympathetic to the defendant's right to compete with the plaintiff for the personal services of others.
So this situation presents an interesting international sports law issue because the two teams are located in different countries, and each country has its own set of laws governing the issue. One major distinction between the two countries' laws is that Russian law apparently permits any employee under contract, even a professional athlete, to leave his or her job upon giving two weeks' written notice. Thus, unlike in the States, it appears that it might be difficult for Mettalurg to establish a claim against Malkin for breach of contract.
But what about a tortious interference claim against the Penguins? This is a complicated question. Mettalurg would most likely sue the Penguins in a Pennsylvania court and, assuming the court determines that jurisdiction is appropriate, the court would most likely apply Pennsylvania law. It then becomes a factual issue regarding the extent of interference committed by the Penguins. Mettalurg could argue that the Penguins were aware that Malkin was already under contract when they made Malkin their first round draft pick. However, that act alone probably wouldn't rise to the level of tortious interference on the part of the Penguins unless the Penguins also negotiated a contract with Malkin (or his agents) for a term to commence prior to the end of the Mettalurg contract term.
If the Penguins ultimately sign Malkin to a contract that overlaps with the Mettalurg contract term, it would make Mettalurg's case much stronger. On the other hand, even if the Penguins do sign Malkin, the Penguins could argue that the interference is not substantial (i.e that the Penguins didn't really do something that either prevents performance
of the Mettalurg contract or makes performance substantially less likely) if Malkin could in fact terminate the Mettalurg contract by simply giving two weeks' notice. Mettalurg might have a good argument that the two week notice termination right simply allows the player to essentially opt out of the contract and not play, but such right does not permit a player to nullify an existing contract and sign with another team because that would make all multi-year terms in Russian professional sports contracts superfluous.
As the USA Today article indicates, Malkin isn't the only Russian player invoking the letter of resignation as a way to leave a team and play in the NHL. Draft picks Alexei Mikhnov (Edmonton Oilers) and Andrei Taratukhin (Calgary Flames) also sent such letters to their Russian teams this summer in order to join the NHL. It will be interesting to see if Mettalurg ultimately acts on its threat....
Posted By : Rick Karcher
Sixth Circuit Rules Michigan High School Sports Seasons Discriminatory
Message posted on : 2006-08-17 - 13:47:00
In the latest opinion in a long-running dispute, the U.S. Court of Appeals for the Sixth Circuit yesterday upheld a district court opinion finding that the Michigan High School Athletic Association (MHSAA) violated federal and state law in the scheduling of girls' sports season. A news article on the case can be found here, and the court's opinion can be downloaded here. While this case may head back to the Supreme Court (which remanded the issue on a technical point in 2005), the 6th Circuit's decision also makes it likely that major changes in the state's sports scheduling will take place in the 2007-2008 school year.
Posted By : Geoffrey Rapp
Shoud Physicals Come Before Trades?
Message posted on : 2006-08-16 - 19:00:00
The recent failed Lee Suggs trade raises a curious aspect of the NFL regime for player trades. Two teams negotiate for the terms of a player's reassignment, and once terms are “final,� the traded player reports to his new team. Only at that point does the new team conduct a medical examination of the traded player. The team gaining the player then faces a dichotomous choice: either declare the player has “failed� the physical, invalidating the trade, or declare that he has “passed,� such that the terms of the trade become finalized. Notably, the team conducting the physical does not have the option to renegotiate terms of the trade based on troubling, but not necessarily fatal medical discoveries. In addition, the team giving up the player has limited or no right to challenge the medical determination made by the acquiring team.
This is an odd way of trading, certainly foreign to most transactions in goods and services, and it may not represent the economically efficient arrangement. Consider the NFL trading regime as applied to, say, the sale of a used car. Let's say I am selling a used car in which you are interested. As with a potential traded player in the NFL context, you have limited information about the vehicle in question; certainly, I, the seller of the vehicle, have more information. The NFL's approach, applied to the auto context, would mean that you could look at film of other people driving the car (equivalent to watching film of an NFL player), but that you could neither test drive the car, nor take it to your friendly neighborhood mechanic, until after we had agreed to terms of the sale. Once we had inked the terms of the sale – and only then – you could take it and have someone more knowledgeable look under the vehicle's hood, to see what it's packing. At that point, the mechanic (presumably according to your instructions or specifications) could declare that the car either “passed� or “failed� its examination. If the car failed, you would be able to return it to me, along with a torn-up copy of our trade agreement. You would not be able to renegotiate a different price; nor would I have any power to challenge your assessment (or rather, your mechanic's assessment) that the car was a lemon.
Can anyone imagine buying a used car this way? Yet that's exactly how NFL trades seem to work. Wouldn't more efficient trades be possible if the potential acquiring team could conduct a physical of the player before signing the terms of the deal? That way, the team would not face the “all-or-nothing� choice it does under the current regime. If the player were hobbled by some surprising injuries, the potential acquirer could negotiate for reductions in price (or, since trades aren't for “cash� in American sports, other types of compensation).
To be sure, a proposal to allow pre-trade physicals might upset some players. After all, being physically examined would tip off the player that a trade was coming – something that a player under the current scheme might not find out until the deal is announced to the public. But at the same time, certainly players like Suggs would appreciate not being declared “physically unfit� to play the game – a moniker that can't be good for a player's next contract bottom line.
At a minimum, it seems that the NFL should clarify the standards under which teams are permitted to declare a player has “failed� his medical exam. That would reduce the likelihood of the kind of bad feeling expressed by the Cleveland Browns this week, according to the San Jose Mercury News:The Browns released a statement that
disputes the Jets' medical decision, with GM Phil Savage saying that Suggs will return to practice immediately.
"Medical opinions can vary from team to team, and obviously this is one team's opinion," Savage said.
Said Browns coach Romeo Crennel: "They've got a new regime down there, so maybe they're doing things a little differently. All I can say is the kid was practicing for us."
Posted By : Geoffrey Rapp
New Federal Lawsuit on Whether Fantasy Sports Are Forms of Gambling
Message posted on : 2006-08-15 - 20:55:00
Tresa Baldas of the National Law Journal has a feature story on a complaint recently filed in the U.S. District Court for New Jersey asserting that ESPN.com, CBS.sportsline.com, and Sportingnews.com are engaging in illegal gambling by hosting pay-to-play fantasy leagues with lucrative prizes (also available on Law.com, 8/14/2006). The claim is being brought by Charles E. Humphrey, Jr., a Colorado attorney whose practice focuses on gambling law. He filed his suit in New Jersey because of that state's gambling loss recovery statute, which, interestingly enough, was originally passed in 1710 to protect English aristocrats from gambling away their inheritance and allows for a "private attorney general," or qui tam plaintiff, to recover half of gambling losses, with the other half going to the state. As Baldas notes, six other states, and the District of Columbia, have similar laws allowing a third party to recover gambling losses-Georgia, Kentucky, Illinois, Massachusetts, Ohio and South Carolina.
Humphrey contends that fantasy players can often lose because of circumstances beyond their control, like plain bad luck. Specifically, he said that if a baseball pitcher throws out his arm, or a football player twists an ankle, or a coach pulls out a star player to give him a break, those are all circumstances beyond the player's and bettor's control and thus consistent with a game of chance.
Humphrey's lawsuit is apparently causing great consternation among fantasy sports operators, and has elicited response from their lawyers that fantasy sports are about skill:
The lawsuit has raised some commotion in the fantasy sports industry, which has invited a team of attorneys to discuss the potential impact of the suit at the 14th Fantasy Sports Trade Conference in Las Vegas on Aug. 30.
"People of course are nervous about [the lawsuit] but the general feeling in the industry is that fantasy sports are not gambling," said Glenn Colton of the New York office of Palo Alto, Calif.'s Wilson Sonsini Goodrich & Rosati, who will speak at the conference. Colton, who also represents the Fantasy Sports Trade Association, doesn't believe Humphrey's suit will succeed.
"I think that the premise that [a fantasy sport] is more chance than skill is simply wrong," Colton said. "There are very large number of ways in which someone can skillfully and intellectually predict how a player is going to perform." For example, Colton said, a fantasy football player can study offensive coordinators' techniques, evaluate who gets the ball more often-wide receivers or running backs-or study a quarterback's performance.
Baldas also interviews Attorney Rudolph Telscher and me:
Michael McCann, who teaches sports law at Mississippi College School of Law, does not think Humphrey's suit will prevail.
"Fantasy sports just don't strike people as immoral. Even if his argument is technically correct, it lacks the moral weight that is so crucial in many other litigations," McCann said. He added that the name of the game itself-fantasy-"attempts to suggest that it's not real, that there's an innocence to it."
Attorney Rudy Telscher of Harness, Dickey & Pierce in St. Louis recently won a case on behalf of a baseball fantasy league operator suing over the rights to use player statistics.
Major League Baseball argued that fantasy leagues needed a license to use the information. But on Aug. 8, a federal judge ruled that fantasy baseball operators do not need licenses to operate such leagues. C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, No. 4:05-CV-00252 (E.D. Mo.).
Telscher said that the ruling was a big win for fantasy operators, which would have had to shut down had the judge ruled otherwise, and for fantasy players, who may have had to start paying fees for player statistics. "I think a loss would have definitely crippled [the fantasy industry]," he said.
We'll keep you posted on Humphrey v. Viacom Inc., No. 2:33-av-00001 (D.N.J.). For other coverage of fantasy sports on this blog, please click here.
Posted By : Michael McCann
Marquette Conference on Individual Performer Sports
Message posted on : 2006-08-14 - 17:22:00
Marquette's National Sports Law Institute will be hosting an interesting conference (CLE credit available) on October 8 entitled Individual Performer Sports: Current Legal and Business Issues.
Panels include:Internal Regulation Issues in Individual Performer Sports and Public Law Limits on Authority
Transsexualism and Athletic Competition
Legal and Business Issues in Tennis, Golf & Track & Field
Legal and Business Issues in Emerging Individual Performer Sports
For more information, or to register, go to this site.
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-08-14 - 17:16:00
New this week:Melissa Steedle Bogad, Note, Maybe Jerry Maguire should have stuck with law school: how the Sports Agent Responsibility and Trust Act implements lawyer-like rules for sports agents, 27 CARDOZO LAW REVIEW 1889 (2006)
Kenneth B. Franklin, Note, A brave attempt: can the National Collegiate Athletic Association sanction colleges and universities with Native American mascots?, 13 JOURNAL OF INTELLECTUAL PROPERTY LAW 435 (2006)
Jacob Jacoby, Sense and nonsense in measuring sponsorship confusion, 24 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 63 (2006)
Posted By : Geoffrey Rapp
New NFL Commish Has His Work Cut Out for Him
Message posted on : 2006-08-14 - 07:03:00
Vito Sellino has an interesting piece in Sunday's edition of the Florida Times-Union, in which he addresses a common misperception in the sports world that new NFL commissioner Roger Goodell took over from Paul Tagliabue a "well-oiled machine" ("Goodell's hands full with heavy contract issues"). Sellino interviewed Jacksonville Jaguars owner Wayne Weaver, who said the consensus of owners right now is that they need a new business model. Despite the fact that the owners passed a new collective bargaining agreement last March by a 30-2 margin, that agreement has yet to be finalized in written form and, according to Sellino, many owners appear to have buyers' remorse. Weaver said he voted in favor of the new labor deal because "labor peace was more important than having a labor strike or Armageddon."
At the final hour, the owners and the union agreed in principle on a very complex and detailed revenue sharing plan that still hasn't been reduced to writing. Indeed, the very next day following the announcement there appeared to be confusion among the owners about how the revenue sharing would work, and some owners were even questioning what it was they agreed to regarding revenue sharing. Now, five months later, 32 owners and the union are still trying to come to agreement and accurately reflect in writing what they agreed upon last March. It even appears as though there is some disagreement among the "have's and have not's" regarding the basics of the revenue sharing plan. Sellino wrote:
"The way it's set up, the small-market teams must pick up the costs that help the big-market teams make more money. Weaver has called that agreement "unsustainable" in the long term. Small-market owners will closely watch to see how Goodell handles this issue because they're concerned that big-market teams will insert qualifiers in the deal and limit the money the lower-revenue teams receive."
Here we go again! It remains to be seen how much longer the so-called "labor peace" in the NFL will actually last. Even if and when the owners and the union finally agree upon the precise terms and language, Sellino points out that, in just 27 months, the vote of only nine owners would enable them to opt out of the deal, which would then expire after the 2009 season and the onus would then be on Goodell to convince Gene Upshaw that the union should give back some of the perks it won last March. Good luck with that Mr. Goodell....
Posted By : Rick Karcher
Redskins Trademark Challenged as Offensive (Again)
Message posted on : 2006-08-11 - 17:01:00
In the latest salvo in a long-running war with the Washington Redskins, a group of Native American activists has filed a complaint with the Patent Trademark Office (PTO) seeking cancellation of the registered mark on the grounds that it is offensive. The petitioners argue that the term "Redskin" "was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist designation for a Native American person." A similar complaint was ultimately rejected by a federal court in Pro Football, Inc. v. Harjo, 284 F.Supp.2d 96 (D.D.C. 2003).
However, this time around, as WSJ Law Blogger Peter Lattman explains, the plaintiffs have an interesting strategy. The court in the previous case found thatlaches (essentially, a statute of limitations) barred the Native Americans' claim because the Redskins had registered their trademark way back in 1967. The Native Americans then appealed to the D.C. Circuit, which issued an opinion last year declining to rule on disparagement but asking the trial court to reconsider the laches issue.
So how do the new petitioners get around the laches issue? They're young, ranging in age from 18 to 24, so their claim isn't stale.
Posted By : Geoffrey Rapp
How Not to Teach A Softball Team to Slide
Message posted on : 2006-08-11 - 08:37:00
A New York appellate court has upheld a trial court's decision allowing some portions of an injured softball player's suit against her school to go forward. See Ross v. New York Quarterly Meeting of the Religious Society of Friends, 2006 WL 2291108 (N.Y. App. 2006). The plaintiff had twisted and fractured her right lower leg while performing an exercise to practice sliding. According to the court, The drill was conducted in the school gymnasium, under the supervision of the softball team's coach and her assistant, both of whom were defendant's employees. The students took turns running across the hardwood floor toward an area where the floor was covered by parachute material, where they were directed to slide on the material. . . . [P]laintiff testified that the coach and her assistant did not smooth out and reset the material after each student's slide . . . .
The appellate court upheld the trial court's decision to let the plaintiff proceed with her case over the defendant's primary assumption of risk argument. The court reasoned that the plaintiff had raised a triable issue of fact as to whether the softball team coaches had increased the risks ordinarily associated with softball practice participation:
To begin, plaintiffs' expert opined that the coach unreasonably increased the risks of the exercise by directing the students to slide while wearing sneakers, which, according to the expert, would create traction on the gymnasium floor from which injury could result. In addition, the expert opined that, if (as the . . . plaintiff testified) the parachute material were not smoothed out and reset before each successive slide, such an omission was a breach of sound coaching practice that could have been the cause of the accident. In this regard, it is significant that . . . the accident occurred when her leg "got caught" in material that was "bunched up" from the previous slide. Finally, the expert opined that the coach should not have directed the . . . plaintiff to begin sliding before she reached the parachute material. Given that the uncovered hardwood floor would have generated greater friction than the material, beginning to slide while still on the uncovered floor (if this is what the infant plaintiff did) could have been a cause of the accident.
However, the court rejected plaintiff's claim that the failure to use a "spotter" increased the risks associated with the sport which plaintiff assumed by way of her voluntary participation. The court opined, "If plaintiffs were permitted to go to trial on this theory, predicated solely on defendant's alleged failure to realize a conceivably attainable additional increment of safety, little would remain of the well-established doctrine of primary assumption of risk."
Posted By : Geoffrey Rapp
Judge Rules in Favor of Fantasy Baseball League
Message posted on : 2006-08-08 - 22:02:00
Today U.S. District Court Judge Mary Ann Medler ruled in a 49-page summary judgment that baseball and its players have no right of publicity to their names and playing records associated with statistics generated for fantasy baseball leagues. MLB, which paid the MLBPA $50 million for an exclusive right to license the stats for this purpose, claimed that CBC Distribution and Marketing Inc. (which runs CDM Fantasy Sports) violated the players' right of publicity by using their names in connection with the use of stats. Essentially, MLB is stepping into the shoes of the MLBPA via the license and asserting the claim that could otherwise be brought by the players.
According to Judge Medler, even if the players could claim the right of publicity to protect their names and information from commercial ventures by others, the First Amendment takes precedent because CBC is disseminating the same statistical information found in newspapers every day. Judge Medler also wrote: "The names and playing records of Major League baseball players as used in CBC's fantasy games are not copyrightable. Therefore, federal copyright law does not pre-empt the players' claimed right of publicity."
I disagree with Judge Medler's comment about the applicability of the First Amendment here because I think it's a stretch to say that fantasy sports leagues are serving any sort of newsworthy purpose. Fantasy sports leagues are basically games -- a form of entertainment. Some would even say it's akin to gambling. The issue from a right of publicity claim standpoint is simply, to what extent can third parties use the names and likenesses of athletes and entertainers, without consent, for their own commercial advantage?
So where do we draw the line on what constitutes "commercial advantage"? Obviously, newspapers are free to use the names. But if Nike were to use Tiger Woods without his consent, I presume nobody would question that Tiger would have a valid claim against Nike. What about baseball trading cards? Judge Medler's decision appears to be at odds with existing case precedent holding that Topps is not allowed to print and sell cards without the players' consent. How is the use of players' names and stats on trading cards any different from their use in fantasy leagues? Both companies are using the information for their own commercial advantage in a non-newsworthy context.
Posted By : Rick Karcher
From Intern to Commish
Message posted on : 2006-08-08 - 20:21:00
The N.F.L. has made its choice for its next Commissioner from five finalists, and that choice is insider Roger Goodell.
Posted By : Geoffrey Rapp
Chicago Panel on Title IX
Message posted on : 2006-08-07 - 20:05:00
The Federalist Society is sponsoring a lunchtime event tomorrow, August 8, in Chicago, entitled "Title IX and Athletics: The Debate over Surveys, Quotas, and the Three-Part Test." The panel includes former Iowa Athletics Director Christine Grant and University of Chicago Law Professor Richard Epstein, who has recently turned his libertarianism / law and economics analysis to Title IX.
Posted By : Geoffrey Rapp
10th Circuit Partially Reverses Jury Verdict in Broncos Ownership Dispute Case
Message posted on : 2006-08-07 - 14:00:00
On August 1, the U.S. Court of Appeals for the 10th Circuit partially reversed a jury verdict that had gone in favor of former Denver Broncos owner Ed Kaiser (who had sold the team in 1984). See Kaiser v. Bohlen, 2006 WL 2130439 (10th Cir. 2006). Greg blogged about the underlying dispute and jury verdict back in February 2004 in this post. As Greg's post notes, the jury gave Kaiser a partial victory; the district court subsequently ordered specific performance allowing Kaiser to buy back an ownership stake in the company that owns the Broncos.
The 10th Circuit's holding is based on a narrow reading of the Right-of-First-Refusal provision of the contract, and essentially involves a different interpretation of the contract than the district court's. A more interesting aspect of the decision may be the court's opening paragraph: If sport be a metaphor for life, then surely the sale of a National Football League franchise must be like the game itself. Sophisticated businessmen, armed at the elbow with teams of experts, including transactional lawyers, advance their offensive and defensive strategies towards the goal of obtaining a contract, shaking hands, and sealing the deal. When the ink is dry, the game is over. If a dispute arises, our role, like that of a referee, is to ensure that the parties live up to their agreements, follow the law, and play by the rules.
Kaiser has vowed to continue his fight in state court.
Posted By : Geoffrey Rapp
Welfare for Billionaire Team Owners? Paul Allen, the Portland Trail Blazers, and Chapter 11 Bankruptcy
Message posted on : 2006-08-06 - 17:48:00
Helen Jung of the Portland Oregonian has an excellent article on Portland Trail Blazers' owner Paul Allen and what he plans to do with his franchise (Will He Hold the Ball, Dish, or Drive?, Aug. 5, 2006). Until last week, Allen, who co-founded Microsoft with Bill Gates and who Forbes Magazine ranks as the world's 6th wealthiest person with a net worth of $22 billion, had planned to sell the team, in part because of frustrations over the revenue he obtains from his deal with the Portland Arena Management group, which hosts the Trail Blazers' home games in the Rose Garden, and in part because of poor management decisions concerning player talent and player contracts (e.g., Zach Randolph's $86 million deal). In fact, the Blazers, which had the NBA's worst record last season, are expected to lose over $100 million in the next few years. But Allen could not find a buyer that met his price, even though the Arena Management group claims that he 
turned down several lucrative offers.
Blazers' fans are now wondering what Allen--who, if the Seattle Supersonics relocate to Oklahoma City, may seek to relocate the Blazers to Seattle, where he already owns the Seahawks and lives nearby--will do.
As Jung details, one option would be to do nothing. When you are worth $22 billion and you get to own an NBA team, what's a $100 million in losses, really? And actually, because of federal income tax write-offs, he might be able to write-off the losses, thus taking some of the sting out of them.
A second option would be to buy back the Rose Garden, which he owned from 1995 to 2004. That is said to be Commissioner David Stern's preferred option, although bad blood between Allen and the Arena Management group apparently makes that unlikely.
A third and perhaps more controversial option would be to try to put the Blazers into Chapter 11 bankruptcy protection, which would enable the Blazers to stay in business while a bankruptcy court managed its reorganization and franchise-related decisions. Part of the reorganization could entail the Blazers being relieved of the obligation to pay some or all of the player contracts. However, those contracts are guaranteed by the NBA, meaning the NBA would likely pick up the tab for Paul Allen, at least until the reorganization was complete. So that means the other 29 NBA ownership groups would be paying off the contracts of Allen, the NBA's wealthiest owner.
Jung interviews me for the story on this point:
Another significant obstacle would be getting the NBA and other team owners to go along with a bankruptcy-filing-and-relocation attempt, said Michael McCann, a law professor at the Mississippi College School of Law and sports-law expert. The league -- and other team owners -- might have to take on the responsibility of paying player contracts in a bankruptcy situation, McCann said. Plus, there's the league's image.
"There comes a point where fans say enough is enough," he
said.
So how realistic would Chapter 11 be for Allen? I don't think it's very realistic. Depending upon how a court grants relief (and if it grants relief), using Chapter 11 protection to "protect" the Blazers could potentially set-off a disastrous precedent for the NBA and pro sports leagues in general: if teams can get out of bad player contracts by simply declaring bankruptcy, other franchises would seemingly be penalized, since they would be paying off the contracts of the bankrupted franchise (sort of like an unintended form of revenue-sharing). Granted, other NBA owners could agree to not use that mechanism in the future, and could try to condition future purchases of NBA franchises upon the waiving of the right to declare bankruptcy, and thus make this a one-time problem--a Coase Theorem style solution, if you will.
But even as a one-time event, an NBA franchise going into bankruptcy would seem very embarrassing for the NBA--especially considering Allen's profound personal wealth--and possibly damage the league's reputation and hurt the value of other NBA franchises. It would also call into question whom exactly bankruptcy law is supposed to protect; I don't think billionaires like Paul Allen are the intended beneficiaries.
For much more on this story, be sure to check out Henry Abbott's excellent post on True Hoop and Dwight Jaynes' excellent on-line column. There's some other great stuff on Helen Jung's blog, Playbooks and Profits.
Posted By : Michael McCann
USA Equestrian Escapes Antitrust Case
Message posted on : 2006-08-05 - 09:08:00
On August 2, USA Equestrian Federation (USEF), Inc., the National Governing Body for "equestrian sports" (such as "jumping," "dressage" and "hunter"), won an antitrust case in the United States Court of Appeals for the 11th Circuit. See Jes Properties, Inc. v. USA Equestrian, Inc., 2006 WL 2136260 (11th Cir. 2006). At issue was the USEF's "Mileage Rule," which
requires that any A-rated recognized competitions held on the same date must be held at least 250 miles away from each other. This is true for all but some Northeastern states, which are subject to a 125-mile radius distance for A-rated competitions. The required distance diminishes as the rating decreases. Unrated or local competitions on the same date can be held within fifty miles of each other. Under the Mileage Rule, an A-rated competition that was held on a certain date in the previous year receives priority.
Florida promoters of for-profit equestrian shows who had lost out on receiving an "A-rating" hoped that the court would declare the Mileage Rule a violation of the antitrust laws. Seems like a pretty clear "territorial allocation," a per se violation of the Sherman Act, right? Not so, says the 11th Circuit. USA Equestrian has "implied immunity" from antitrust laws under the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. § 220501 (commonly known as the "Amateur Sports Act," or ASA). That immunity allows a National Governing Body to exercise "monolithic control" over a sport. The court explained:
Therefore, the question for this Court is whether the application of the antitrust laws to the facts of this case would "unduly interfere" with the "operation" of the ASA. . . . Congress has specifically required NGB's to minimize conflicts in the scheduling of competitions and to "develop interest and participation throughout the United States" in their particular sport. The Mileage Rule functions to minimize conflicts and encourages interest in equestrian sports. It forbids competitions of the same rating from being held on the same days within 250 miles of each other. The USEF and the Promoter Defendants adduced evidence that the rule enables the best athletes to compete against each other. If two competitions of the same rating were in close proximity, top athletes may avoid competition against each other and go to different competitions. The USEF and the Promoter Defendants also produced evidence that the rule protects horses from being overworked. If two competitions were very close by on the same dates, horses may be taken from one competition to the next without sufficient rest. Additionally, the rule encourages the spread of equestrian sports throughout the country. If a competition cannot be held in one locality, a promoter may decide to hold a competition in a region in which competition has never been held. Therefore, the Mileage Rule is an exercise of the "monolithic control" Congress conferred on the USEF.
One interesting thing going on here is that evidence that a rule is part of the exercise of monolithic control sounds a lot like evidence that an antitrust violation promotes "on field competition." That kind of evidence has been rejected repeatedly by courts adjudicating sports law antitrust decisions. This decision also makes me wonder how how far "monolithic control" might go. Could USA Basketball, for example, decide to implement a rule that
affected NBA competitions, on the grounds that it might increase the popularity of the sport of basketball?
Posted By : Geoffrey Rapp
Deer, Racetracks, and Torts
Message posted on : 2006-08-04 - 16:48:00
There is a very unfortunate story out of Road America, a racetrack located in Elkhart Wisconsin:
There are many ways that driver can get injured in an open-wheel racing car. A 100-mph collision with a deer isn't one that usually comes to mind. But that's the fate that befell Cristiano da Matta on Thursday during a routine test day at Road America. According to witnesses, the 32-year old Brazilian's RuSPORT Racing Lola struck the animal after it darted onto the track from the driver's right on the uphill run to the blind, left-hand Turn 6. The impact knocked da Matta unconscious [and he suffered a ruptured blood vessel on the surface of the brain and remains in critical condition] . . .
Road America media director Julie Sebranek said she had never heard of a similar incident at the track. "The race track has been here for 50 years. It's highly, highly unusual," Sebranek said Friday. An 8-foot chain link fence topped with barbed wire circles the 628-acre property, which is surrounded by wooded terrain and farm fields.
When asked how the deer got onto the property, Sebranek said: "They have been known to jump the 8-foot fences. It's just a freak thing and we just maintain the property as we do on a daily basis."
Attorney John Powers has some interesting torts questions based on these facts:
1) Does a racetrack owe a duty to its drivers to keep the track in safe condition?
2) Is a deer running onto the track foreseeable?
3) How high are the fences?
4) How high can deer jump?
5) Do racetracks make drivers sign waivers?
Posted By : Michael McCann
Federal Court Continues to Bar Suspicionless Stadium Patdowns
Message posted on : 2006-08-04 - 15:47:00
On July 28, a federal district court refused to lift an injunction barring the Tampa Sports Authority (TSA), which owns the stadium in which the NFL Tampa Bay Buccaneers play. Greg discussed the issues raised by the case, filed by a schoolteacher, here; Mike followed up here. In his latest opinion in Johnston v. Tampa Sports Authority, 2006 WL 2136154 (D. Fla. 2006), Judge Whittemore explained:The TSA has not established that its concern for public safety is based on a substantial and real risk which would justify a "special needs" exception to the well-established rule that suspicionless searches of one's person are per se unreasonable. Moreover, the TSA has not demonstrated that this case presents one of the very limited instances where the Plaintiff's privacy interest is minimal and the TSA's public safety interest would be jeopardized by prohibiting mass suspicionless pat-downs at the Stadium.
* * *
Defendants contend the "special needs" exception justifies mass suspicionless pat-downs of NFL patrons because of the need to protect patrons against potential terrorist attacks. One cannot seriously dispute the magnitude of the threat of terrorism to this country or the Government's interest in eradicating it. In this regard, the TSA's "special need" to prevent terrorist attacks is "substantial" . . . . Likewise, any reasonable person appreciates the potential harm that would result from a terrorist attack at the Stadium. However, the gravity of the threat cannot alone justify the intrusiveness of a suspicionless search of Plaintiff's person.
The Court concludes: Particularly after September 11, 2001, Americans are justifiably more sensitive to the need to protect against acts of terrorism. Many Americans have become more tolerant of protective measures such as magnetometers, container searches and pat-downs, rationalizing that the inconvenience is worth the added protection. In fact, pat-downs may not bother the average Buccaneers fan. However, the constitutionality of mass suspicionless searches does not turn on popular opinion. A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protections envisioned by our Founding Fathers. Our Constitution requires more.
It's worth noting that the TSA, as a municipal entity engaging in "state action," is subject to the constitutional prohibition on search and seizure; an entirely privately owned stadium would likely be able to pat down fans without such concern.
Posted By : Geoffrey Rapp
National Sports Law Institute Conference
Message posted on : 2006-08-04 - 12:38:00
Here's something that will be of interest to many in the sports law industry (and those who are trying to break into the industry): On Friday October 6, 2006, the National Sports Law Institute will host a conference on "Individual Performer Sports: Current Legal and Business Issues" on the campus of Marquette University in Milwaukee, Wisconsin. There will be five panels, and they will address legal and business issues related to tennis, golf, track and field, poker, swimming and other individual performer sports.
Panelists include:
John Collins--partner, Collins & Collins, Chicago, IL
Adam Epstein--associate professor of finance and law, College of Business Administration, Central Michigan University, Mt. Pleasant, MI
Elizabeth A. (Libba) Galloway, executive vice president and chief legal officer, Ladies Professional Golf Association, Daytona Beach, FL
Jeff Gewirtz, general counsel & managing director of legal affairs, U.S. Olympic Committee, Colorado Springs, CO
Martin Greenberg, partner, Greenberg & Hoeschen, LLC, Milwaukee, WI
Gordon Kirke, Q.C., sports lawyer who also teaches sports law, Toronto, Canada
Richard McLaren, faculty of law, University of Western Ontario, and Chairman, Association of Tennis Professionals (ATP) Anti-Doping Tribunal, London, Ontario, Canada
Jim McKeown, partner, chair Antitrust Practice Group, and member Sports Industry Team, Foley & Lardner LLP, Milwaukee, WI
Barbara Osborne, associate professor in exercise and sport ccience, and adjunct professor in law, University of North Carolina at Chapel Hill
Jill Pilgrim, general counsel & director of business affairs, USA Track & Field, Inc., Indianapolis, IN
Ryan Rodenberg, associate general counsel, Octagon, McLean, VA [and Sports Law Blog guest contributor]
James Sullivan, executive vice president, Poker Royalty, LLC, and founder and president, MVP Sports Group, Las Vegas, NV
For more information, check out this link. It should be a great conference.
Posted By : Michael McCann
Royals Sign No. 1 Draft Pick to Major League Contract
Message posted on : 2006-08-04 - 10:20:00
The No. 1 overall draft pick this year, Luke Hochevar, agreed with the Royals on a four-year major league contract with a guaranteed $5.2 million over the length of the contract and incentives that could push the deal to about $7 million. Major league contracts are not usually given to draft picks. As stated in the linked press release, Hochevar will become the fourth No. 1 selection of the draft to sign a major league deal in the last 20 years. The others were Alex Rodriguez in 1993, Pat Burrell in 1998 and Delmon Young in 2003.
Signing a major league contract can be beneficial to the club because it allows the club to defer payment of the signing bonus by spreading it out over the term of the contract (typically backloaded). Whereas, signing a minor league contract requires the club to pay the entire bonus before the end of the calendar year of the year following the draft (i.e. within 18 months). Major league contracts are beneficial to the player because the player must be placed on the 40 man roster right away and the 3-year option clock starts ticking. In other words, the club has three years in which to get the player on the 25 man roster or risk losing the player to another team through waivers. Although signing a major league contract does not affect the player's eligibility for arbitration or free agency, it can potentially create roster problems for the club if the player is not ready for the big leagues after three years due to the option rule.
Hochevar is represented by Scott Boras. He was drafted out of the University of Tennessee by the Dodgers as the 40th overall pick in 2005, but did not sign. John Manuel and Kevin Goldstein of Baseball America wrote a really interesting article last year (9/5/05) outlining in detail the fiasco that lead to the failure of the Dodgers and Hochevar to reach agreement ("Hochevar Negotiations Get Weird"). In a nutshell, Hochevar (with Boras as his "advisor") was holding out with the Dodgers (imagine Boras doing that!) and they were unable to reach a deal after the 2005 draft. Another agent approached the Dodgers and negotiated a $3M signing bonus. Hochevar then terminated Boras on Sept. 2 before signing the contract, but that evening Boras convinced Hochevar that he was worth much more and convinced Hochevar not to sign and to stay with him. Hochevar decided not to play his senior year at Tennessee and played in an independent league so that he could continue negotiating with the Dodgers up until the 2006 June draft. Since they still did not reach agreement, Hochevar re-entered the draft and was selected by the Royals with the first pick.
From a purely economic standpoint, Boras definitely called this one right. All along Boras had been saying that Hochevar is comparable to 2005 draftee (and Boras client) Craig Hansen, who received a $1.3 million bonus and a guaranteed $4 million major league contract, and to Philip Humber, the Mets' 2004 first-round pick who signed for a $4.2 million major league deal with a $3 million bonus. On the other hand, Hochevar's holdout prevented him from gaining valuable experience for two seasons playing for an organization in a much more competitive atmosphere than the independent league, which I believe has tremendous value that obviously can't be measured from an economic standpoint.
Posted By : Rick Karcher
California Court to Give Injured Golfer a Trial
Message posted on : 2006-08-03 - 15:34:00
A California Court has reversed a lower court's decision granting summary judgment to a defendant who was sued after injuring another golfer. While the defendant may, of course, win at trial, the decision appears to put California at odds with the Hawai`i Supreme Court's decision, which I discussed in this post. (The attorney representing the golfer injured by Jamal Mashburn should get his hands on this California decision).
The case is Shin v. Ahn, 2006 WL 2042891 (Cal. App. 2006), which can be downloaded (free registration required) from Findlaw here, and is covered a news story here. The facts underlying the dispute, according to the appellate court's opinion:On August 10, 2003, [Ahn], Shin, Jeffrey Frost and a fourth unidentified man were grouped together to play a round of golf at Rancho Park Golf Course. . . .[Shin] stopped on the cart path before the tee box and then got a water bottle out of his bag and checked his phone for messages. In the vicinity of the thirteenth hole, before anyone had begun to tee off, Shin made eye contact with [Ahn] as he stood to the front and left of [Ahn].
[Ahn]'s practice on the tee was to back away from the ball and take one practice swing. When he took his practice swing on the thirteenth hole, he did not know where Shin was. He did not see anyone on the fairway at that time. After his practice swing, he stepped forward and focused on the ball for approximately 15 to 20 seconds until he struck it. [Ahn] did not know where Shin was when he teed off. After he hit the ball, he looked up to see Shin on the ground approximately 25 to 35 feet away; he was to the left of appellant at about a 40 to 45-degree angle from him toward the upper tee box. [Ahn]'s ball had hit Shin in the head.
Applying the doctrine of primary assumption of risk, the trial court granted defendant's motion for summary judgment. On appeal, the appellate court rejected the application of this doctrine to the facts:the undisputed evidence submitted on summary judgment showed that [Ahn], who was in the same threesome as Shin, failed to establish Shin's whereabouts at the time he teed off. He conceded that there was "[n]o particular reason" why he did not wait to tee off until he knew where Shin was standing. . . . as a matter of law, [Ahn] owed Shin a duty of care . . . This duty included the duty to ascertain Shin's whereabouts before hitting the ball. . . . [I]mposing a duty on a golfer to determine the whereabouts of the individuals in his group before teeing off does nothing to alter or destroy the nature of the activity.
The court's holding is that failing to check for the location of the golfers in one's own group increases the risks inherent in golf, and is thus outside of the primary assumption of risk doctrine.
Is the distinction between Shin and the Hawai`i case regarding whether the injured and injurer are within the same foursome an adequate basis to justify different legal outcomes?
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-08-02 - 21:31:00
Newly published this week:Kristen Boike, Note, Rethinking gender opportunities: non-traditional sports seasons and local preferences, 39 U. MICH. J.L. REFORM 597 (2006)
Also worth a look (via free download at this link):N. Jeremi Duru, Fielding a Team for the Fans: The Societal Consequences and Title VII Implications of Race-Considered Roster Construction in Professional Sport, 84 WASHINGTON UNIVERSITY LAW REVIEW (forthcoming 2006)
Posted By : Geoffrey Rapp
UM Coach Carr Responds to "Blind Ref" Lawsuit
Message posted on : 2006-08-02 - 20:22:00
Today's Detroit Free Press has a response from Michigan football coach Lloyd Carr to being mentioned in a lawsuit filed by terminated Big 10 official James Filson in an Illinois federal court. Filson was a Big 10 official from 1992 until 2005. In 2000, he had suffered an eye injury leading to blindness in one eye; however, he wasn't terminated until Carr, who learned about the injury from another official, called the conference commissioner. Predictably, Filson claims his termination violated the Americans with Disabilities Act (ADA).
Upon terminating Filson, Big 10 Commish Delany stated that he had to go because he "failed to fulfill the 'minimum physical requirements' of the job and because he did not have a 'full field of vision.'" I'm not a doctor, but it certainly is easy to imagine how a person blinded in one eye might have diminished perception. One might worry that the official would miss a crucial call, or perhaps be injured because he failed to spot an mass of college athlete coming his way.
The big problem for the Big 10? Filson's "rating" as an official actually improved after his injury. That would seem to undercut the conference's ability to claim that Filson could not be reasonably accomodated. (How, exactly, Filson managed to improve his rating after his injury is an interesting question. Perhaps, sensitive to his potential limitations, he concentrated extra hard on making the right calls after his injury. But if extra concentration could improve his rating, what does that say about his pre-injury level of effort?).
Sports Illustrated's Justin Doom is cheering for Filson to get his job back. Doom suggests that a critical issue will be whether Filson told his bosses of his injury. I'm not sure that's legally correct. Unless Filson had a specific contractual obligation to disclose "material" changes in his health, I wouldn't think he has any obligation to tell his employer of an injury or disability that occurred off the job, particularly if he is not seeking an accomodation of any kind at work.
In any event, Coach Carr rejects the characterization that he tried to get Filson fired. According to the Freep: "I made it clear to [Big 10 Commissioner] Jim [Delany] that I had no opinion and that I was not calling with any motivation other than to provide him with that information," Carr said. "What he chose to do with it was his decision. ... Given the same circumstances, I would make the same call -- in spite of the fact that it has been portrayed I cost him his job or that I was trying to get him fired. There is nothing further from the truth."
Posted By : Geoffrey Rapp
Ohio State should be pleased with O'Brien's $2.2 million jury award
Message posted on : 2006-08-02 - 18:09:00
Last February, Michael discussed the ruling of Judge Joseph T. Clark of the Ohio Court of Claims in which Judge Clark determined that former Ohio State basketball coach Jim O'Brien broke his contract by giving $6,000 to a recruit and failing to inform university officials, but that the error was not serious enough to warrant firing. Judge Clark ruled that the university violated the contract by firing him without compensation. Today a jury awarded O'Brien $2.2 million in damages.
In the comments to Michael's post last February, I took exception with Michael's opinion that O'Brien's conduct constituted a materially breach of his employment contract. I also opined that O'Brien's conduct did not give Ohio State the right to terminate O'Brien for cause under the express provisions of the employment contract.
While it may seem like a large award, Ohio State should be pleased with the jury's award today. The article linked to this post states that O'Brien asked the jury for reimbursement of his annual salary of $236,552, plus damages of $3.3 million. His contract specified that he was due 3½ times his base salary for the length of the time remaining on the agreement, and he still had more than five years left on the contract. That means that, under the express terms of the contract, he is actually due more than $4 million.
Posted By : Rick Karcher
Atlanta Hawks/Thrashers Ownership Dispute Continues
Message posted on : 2006-08-02 - 08:11:00
Both Mike and I are quoted in an article from American Lawyer Media's Daily Report on the continuing battle for control of the Limited Liability Company (LLC) which owns the NBA Atlanta Hawks and the NHL Thrashers. The article itself provides a good background of the dispute, which is sufficiently complicated that it's hard to encapsulate in a blog posting. But at heart, this is a dispute about the failure of co-venturers in a business to plan adequately for deadlock and the difficulty of valuing ownership shares in privately held businesses. In my Business Associations class, I teach a number of cases involving these issues from partnership, close corporation and LLC law, and the only thing that makes the Hawks/Thrashers dispute special is that the business is wound up in the pro leagues. Here's some info on the dispute from the Daily Report article: About 16 months after the Atlanta Spirit LLC . . . bought the Hawks, Thrashers and Philips Arena operating rights from Time Warner Inc. for $250 million, the [LLC] has collapsed into a nasty litigation battle.
On one side is the Boston businessman Belkin . . . On the other side are a loose coalition of investors from Atlanta and the Maryland suburbs of Washington. . . . [including] Bruce Levenson, co-founder of business-information provider United Communications Group of Rockville, Md.
* * *
The rancor between Belkin and the other owners apparently began soon after the group bought the teams from Time Warner. But the final straw was the Joe Johnson trade in August 2005.
Belkin tried to block the other owners from approving the Hawks' proposed trade for Phoenix Suns swingman Johnson, saying Hawks General Manager Billy Knight wanted to pay too much for Johnson—two first-round draft picks and forward Boris Diaw.
That dispute went to court in Massachusetts, culminating with the Hawks making the Johnson trade, and the other owners yanking Belkin's managerial control of the franchise. The owners also decided to buy out Belkin's stake, getting rid of him for good. That's when things really started to get complicated.
* * *
Law professors who teach sports law and contribute to a sports-law blog have differing opinions on how the dispute will end. One believes Belkin will end up with the Hawks, although he may have to pay the other owners more than he wants.
"It's a little hard to read because the parties seem to really detest one another and that affects how they perceive what's in their best interests," said Mississippi College School of Law professor Michael McCann, a co-editor of the Sports Law Blog.
"Levenson and Gearon are going to be well-compensated for selling their interests to Belkin," McCann said.
But another thinks the other owners will buy out Belkin for a handsome price. "I would expect that the non-Belkin faction will be forced to pay considerably more than they have expressed a willingness so far to buy out Belkin," said University of Toledo College of Law professor Geoffrey C. Rapp, another co-editor of the Sports Law Blog.
Belkin's aggressive legal strategy appeared to have swayed Judge Johnson, and the current legal ruling does appear to favor Belkin, both McCann and Rapp said.
But the status quo seems to favor the other investors: They run the team, and they've paid Belkin nothing.
Posted By : Geoffrey Rapp
George Orwell Would be a Yankees Fan: Fenway Park Concessionaires Must Now Provide Fingerprints
Message posted on : 2006-08-01 - 16:25:00
Boston Globe columnist Steve Bailey had a very interesting piece in the Globe last week ("Friendly Fenway," July 26, 2006):
Beginning today, Aramark Corp., the giant Philadelphia concessionaire that sells that overpriced beer, is requiring its Fenway employees to be fingerprinted. ``Please stop by on Wednesday, July 26, 2006, or Thursday July 27, 2006, between 8 a.m. to 8 p.m. to pick up your paycheck and your new ID badge & to get fingerprinted," management said in a memo to employees. ``New ID badge & fingerprinting is part of the new time clock system and it is a condition of employment" . . .
All this is part of a profound corporate expansion of Big Brother in the workplace -- the so-called biometric technology revolution that uses everything from fingerprinting to retinal scans to facial recognition to keep tabs on a company's suspects, otherwise known as employees. In particular, Aramark thinks its new Fenway time-clock system will put an end to ``buddy punching" -- the practice of having a co-worker punch in for you.
As many as 800 people work the concessions on any given night at Fenway. Says one long time vendor about being fingerprinted: ``This is incredibly invasive for a pretty menial job. This is not a defense contractor. These people are making hot dogs."
Is Aramark going too far here, or is it justified in its "new policies"?
Also see: Paul Secunda of Workplace Prof Blog discussing this post (8/7/2006).
Also see: Richard Bales of Workplace Prof Blog discussing GPS Tracking of Employees (8/7/2006).
Posted By : Michael McCann
Two Lawyers Among Five NFL Commish Finalists
Message posted on : 2006-07-30 - 17:46:00
It looks like Secretary of State Condoleeza Rice, who is otherwise occupied, will not be the next NFL Commissioner, contrary to earlier speculation. Nor did Forida Governor / First Brother Jeb Bush make the cut. Instead, the NFL announced today the following five finalists, including two lawyers:ROGER S. GOODELL, 47, New York, N.Y. Executive Vice President and COO, NFL
GREGG H. LEVY, 53, Washington, D.C. Partner, Covington & Burling law firm
FREDERICK R. NANCE, 52, Cleveland, Ohio. Partner, Squire Sanders & Dempsey law firm
ROBERT L. REYNOLDS, 54, Concord, Mass. Vice Chairman and COO, Fidelity Investments
MAYO A. SHATTUCK III, 51, Baltimore, Md. Chairman of the Board, President and CEO of Constellation Energy
The owners will apparently make a final decision from among these candidates between August 7 and 9. While handicapping the decisions of NFL owners is always a risky measure, the smart money would seem to be on non-lawyer Goodell. While current commissioner Paul Tagliabue held the same job as Covington partner Gregg Levy when he was appointed back in '89 (that is, principal outside counsel for the NFL), Tagliabue's appointment came at a different time for the NFL. The league had recently emerged from a major intra-league antitrust case (USFL v. NFL), which Tagliabue successfully defended (in the sense that the jury's verdict was a rather meager $1). The '80s were also a divisive time for labor relations in the NFL. A tough litigator like Tagliabue was the obvious choice at that time. But in today's era of labor peace and market dominance, a tough litigator may be make less sense than a business insider with a public relations background. Mr. Nance, Lebron James' lawyer, might trouble some owners because of his
player-side experience (although the line between Lebron and the NBA as a league has certainly faded, and Mr. Nance does have some experience representing the Cleveland Browns). Shattuck and Reynolds, while certainly savvy boardroom leaders, would appear to lack the sports industry experience that usually inspires confidence.
Posted By : Geoffrey Rapp
The Law, Politics, and Linguistics of Fantasy Sports
Message posted on : 2006-07-30 - 15:03:00
Tim Lemke of the Washington Times has an excellent piece on how courts and Congress may address the growth of fantasy sports ("Licensing Case Could Hurt Rotisserie Sports," 7/29/2006). As also discussed recently by Geoffrey Rapp and Greg Skidmore (Geoff's post; Greg's post), Major League Baseball, which requires fantasy sports operators to obtain a license to use MLB statistics, is scheduled to go to trial on September 5 in a federal case against CDM Sports, a fantasy sports operator that claims that statistics generated by MLB players and teams should be useable without MLB's permission. In other words, CBC and MLB disagree on whether MLB has intellectual property rights in publicly-available statistics. Significantly, this is a case of first impression for fantasy sports, and should a holding eventually emerge (i.e., if the parties don't settle, which they probably will), it would have precedential value.
Considering that more $4 billion is spent annually on fantasy sports--with fantasy football and fantasy baseball leading the way--leagues obviously have an interest in obtaining as much fantasy sports revenue as possible. So what legal arguments can they use to obtain that revenue? Here are a few arguments, each with its own set of flaws:
1) Statistics generated purely by league activities (i.e., the playing of games), comprise legally-protected league work product.
2) Fantasy league operators are using statistics not for a newsworthy purpose, but rather to profit off of them, and to do so with neither obtained consent nor payment made. There is precedent for this reasoning: baseball card companies and videogame companies must pay a fee for the use of team logos/colors/statistics etc., just as they must pay a fee for player names/images/statistics etc.
3) One might analogize league required licenses for commercial use of statistics to how movie and music industries require licenses in order to prevent pirated products.
Lemke also discusses how a recent effort by Congress to curb online gambling has exempted the fantasy sports industry. Specifically, in all three bills introduced in the 108th Congress that seek to prohibit Internet gambling (H.R. 21, H.R. 2143, and S. 627), the definition of “bets and wagers� excluded two types of activities: 1) certain financial instruments (stocks, commodities, derivatives, and insurance products) and 2) fantasy sports leagues.
Lemke interviews Christine Hurt and me for the political portion of story:
Why the exemptions?
"It makes passage more likely," said Michael McCann, an assistant professor of law at Mississippi College who specializes in sports law. "Most people like fantasy sports. It doesn't have that moral stigma that betting does. Fantasy sports can be just as addictive, but there's not as much outrage."
Supporters of the exemption argue fantasy sports are considered games of skill, but that characterization has angered some fans of online poker, who have pushed for their own exemption on the grounds their game is equally independent of luck.
The Senate could take up the online gambling bill when it
reconvenes in September, but whether it will be passed into law is still unclear.
Perhaps the biggest reason for the fantasy sports exemption is that sports leagues, which have often railed against gambling because of its potential influence on the outcomes of games, have actually created and hosted their fantasy games, seeing them as a major part of what drives interest in their sports.
"Fantasy sports does not hurt the integrity of the sport, because it would almost be impossible to rig every game to make as much money" as straight betting on games, said Christine Hurt, a law professor at the University of Illinois who has examined Internet gambling laws. "Your success or failure doesn't depend on one team." But, she added, "if you're talking about the impact on the gambler, there's not that much of a distinction."
There's another portion of this topic to consider: the very use of the word "fantasy," almost as if
fantasy sports are somehow make-believe, even though real money is often used.
So what then distinguishes "fantasy" sports from online "gambling"? There are probably several things, including:
1) Fantasy sports are often more about staying in touch with friends and winning grudge matches than about making money; the subjective value of beating your friends in fantasy football is probably more valuable than the few hundred bucks you might make.
2) Some fantasy sports leagues do not involve money changing-hands, and are thus clearly not gambling in any way.
Any other thoughts about fantasy sports? Are they, in fact, "sports," much like poker or spelling bees are now apparently sports?
Posted By : Michael McCann
Playing for Peace: The Power of Basketball to Promote Peace
Message posted on : 2006-07-29 - 20:01:00
ESPN's Chad Ford--who is also a professor of international cultural studies at BYU-Hawaii, with a J.D. from the Georgetown University Law Center and an M.A. in conflict resolution from George Mason University--has two excellent articles on Playing for Peace, a non-profit organization founded in 2001 that uses the game of basketball to unite and educate children and their communities. The core idea of Playing for Peace is that when kids play basketball, they learn to work together on the court, and that makes them more likely to work together off the court. As a result, children from different and opposing demographic groups learn to view "the other side" with less fear and more objectivity. As they mature, they will hopefully continue to feel that way, thus making peace between the groups more likely. The program has been implemented with success in South Africa and Northern Ireland, and was instituted in Israel and the West Bank in December 2005.
Chad traveled to Israel back in May to see how well Playing for Peace had improved relations between Israeli and Palestinian children. Check out this ESPN article and an excerpt from Chad's Willamette Law Review article for more--they are must reads. The law review article is from the same Willamette Law School symposium on the Future of Sports Law that Chad, Rick Karcher, and I were a part of back in March.
Also, Playing for Peace will be featured tomorrow (Sunday, July 30) on SportsCenter and Outside the Lines. Check out both on ESPN. Particularly considering the current turmoil in the Middle East, any ideas for peace should be given serious consideration.
Posted By : Michael McCann
Top 50 Earning Athletes in the United States
Message posted on : 2006-07-28 - 20:08:00
Jonah Freedman of Sports Illustrated has compiled a list of the top 50-earning athletes in the United States. Not surprisingly, Tiger Woods leads the way, although the size of his most recent annual earnings may startle you: $97.6 million, or twice as much as what the #2 person on the list, Phil Mickelson, earned in the last year ($46.0 million). These figures include winnings, salaries, endorsements, and appearance fees. In his career, Woods has earned over a half-billion dollars; he could earn well over a billion dollars by the time he retires from golf.
Here are the top earning players from each league/sport, and their most recent annual earnings figure (salary, endorsements, and appearance fees):
- PGA: Tiger Woods, $97.6 million
- NBA: Shaquille O'Neal, $34.0 million
- NFL: Carson Palmer, $31.6 million
- MLB: Derek Jeter, $28.0 million
- NASCAR: Dale Earnhardt, Jr., $25.8 million
- Tennis: Andre Aggasi, $24.6 million
- NHL: no NHL player is on the list
Does David Dunn, Carson Palmer's agent, deserve an award or what? No offense to Palmer, an excellent quarterback for the Bengals, but does he really deserve to be the highest-earning NFL player? What about Tom Brady or, I suppose, Payton Manning? But Dunn negotiated a 9-year, $119-million extension for his client, and that deal included $24 million in up-front bonus money.
Posted By : Michael McCann
Role of the Agent
Message posted on : 2006-07-27 - 22:21:00
In yesterday's Providence Journal, Tom Curran writes about Deion Branch's holdout from New England Patriots' training camp. In doing so, Curran berates Branch's agent, Jason Chayut, claiming that Chayut's "stupidity" has misled Branch:
[W]hy is Branch reportedly going to hold out when training camp begins tomorrow? Because his agent, Jason Chayut, is killing him.
Earlier this week, Chayut told the Boston Globe that the Patriots are exploiting Branch.
Nice move, Jason. Make your client sound like he's an 8-year-old sweatshop employee making 44 cents a week in Thailand. That'll swing public opinion in his favor.
Yesterday, Chayut added that Branch, "won't be in camp until he feels he's being treated fairly." . . .
Meanwhile, Chayut hasn't returned any of the numerous calls to him in the last few months. He probably should have skipped the Globe's, too.
Either way, the good thing for Branch is that people don't blame the player for an agent's stupidity anymore. And now that Chayut's dopiness has been unveiled it's hard to blame Branch when he's getting bad advice. It's just sad to see a good guy get exploited.
My initial impression is that Tom Curran and Jason Chayut have some kind of negative history, perhaps relating to Chayut not returning Curran's calls while returning the calls of Ron Borges of the Boston Globe. I say that because I don't see why Chayut is "stupid." He knows the Patriots are weak at wide-receiver.
Curran's comments also bring to mind a common critique against attorneys.
ds
Posted By : Michael McCann
Ex-NBAer Mashburn sued for golf injury
Message posted on : 2006-07-27 - 17:00:00
One-time Miami Heat basketball player Jamal Mashburn (who retired from basketball in March after he was waived by the 76ers), has been sued by a Florida man who claims Mashburn failed to shout “fore� or provide any warning before hitting a golf ball in the man's direction. The plaintiff claims to have suffered serious injury.
Mashburn developed an interest in golf at the University of Kentucky. At least that's what he told the Charlotte Hornets, as reported in a puff piece “Getting to know . . . Jamal Mashburn�:"I'm a big-time golfer," Mashburn said in reaction to what he likes to do off the court. "I started playing when I was in college. They turned me on to that at the University of Kentucky."
"It was either that or horses," Mashburn continues, grinning as he recollects. "I didn't get into horses, so I got into golf." Golf is just one of his hobbies.
The lawsuit gets coverage here, here and here. The basics:Jerome Crance was hospitalized on three separate occasions after the ball struck him in the eye, his lawyer Dennis Koltun said Tuesday.
The lawsuit was filed Monday in Miami-Dade Circuit Court and seeks an excess of $15,000 in damages.
Crance and Mashburn, who retired from the NBA after an injury last year, were both playing golf at the upscale LaGorce Country Club in March 2005. Crance was teeing off on the 17th hole when Mashburn hit a shot off the 18th hole that struck him in the eye, the lawsuit said.
Mashburn didn't yell "fore" when he hit the stray ball and failed "to give any warning whatsoever," the lawsuit said.
Koltun said his client suffered serious injuries after the incident.
"He's permanently lost vision in one eye because of a detached retina," Koltun said.
The Hawai'i Supreme Court rejected a similar case earlier this year, as I discussed in this post. In Florida, the issue of a golfer's ability to recover from a co-participant was squarely addressed by an appellate court over thirty years ago. In Rindley v. Goldberg, 297 So.2d 140 (Fla. App. 1974), a golfer sued after she was hit by a ball struck by another member of her foursome. The court was able to resolve the dispute in just three paragraphs: “Viewing the above facts in the light most favorable to the party moved against, we conclude therefrom that plaintiff's injury was a result of the certain obvious and ordinary risks of the sport of golfing which she assumed as a member of a golfing foursome with full knowledge of the normal dangers of participating therein.� Perhaps the plaintiff is hoping Mashburn will offer him some money as a nuisance settlement, since the Rindley case would seem to doom his litigation.
The plaintiff might find some solace in a somewhat more recent case in which a golfer (at a Par 3 course) hit a ball which ricocheted back and hit him in the eye. In that case, Potter v. Green Meadows, Par 3, 510 So.2d 1225 (Fla. App. 1987), while denying defendant summary judgment on an express assumption of risk theory, the court implied that it might not extend the contact sports rule on assumption of risk to golf ("There is no evidence of an express covenant not to sue in this case
and golf is not generally recognized as a "contact sport.'").
I wonder if Mashburn is wishing he'd taken up horses at UK instead...
Posted By : Geoffrey Rapp
Real Estate
Message posted on : 2006-07-27 - 13:58:00
Got about $5 million to spare and looking for a house near Fenway Park? Than go no further to Brookline, Massachusetts, where Johnny and Michelle Damon have put their
Johnny and his wife spent $4.75 million on a 12-room, 6,800-square-foot house in Brookline, not far from Fenway Park
http://www.boston.com/realestate/gallery/Formerredsoxhomes/?p1=MEWell_Pos1
Posted By : Michael McCann
Excitement of USA Basketball.
Message posted on : 2006-07-26 - 12:52:00
First, I want to thank Rick Karcher and Michael McCann for inviting me to be a guest. After several days of trying to log on, I finally listened to and followed Michael's instructions and was able (hopefully) to make a post. While its tempting to post a comment on the on-going issues concerning anti-doping, it seems the resurrection of the USA Basketball team recently is a new, fresh topic for discussion.
Depending on your age, you probably recall the first "Dream Team" that went to Barcelona and walked through the 1992 Olympics on its way to the gold medal. Once the U.S. got comfortable that these "professional" NBAers could play on the Olympic team, the only remaining issue was how to allow the athletes wear uniforms, shoes, and other gear that was not made by the compaines that were sponsoring them.
Over the past few years, a combination of the world players catching up to the our talent and what appears to be us taking the Olympic and World Championships victories for granted has resulted in poor (in comparision) results. (what other factors contributed to our decline?)
Now, with the recent headlines, it looks as if USA Basketball has made a firm commitment to obtain a cohesive team put together well in advance of the Olympics under a Coach (Coach K) who will focus on the game as played in international competition.
Whole lot of legal issues such as player likeness, injuries, sponsors, drug testing, etc....any thoughts?
(For those that do not know, those athletes who are not normally subject to drug testing standards set out by WADA (such as those that fall under a CBA) are subject to the WADA rules prior to the Olympics and World Championship games including the USA Basketball team currently put together).
Posted By : Travis
Harold Reynolds Fired: Is Sexual Harassment Situational or Dispositional?
Message posted on : 2006-07-26 - 12:11:00
Neil Best of Newsday writes about Harold Reynolds' surprising firing from ESPN--allegedly because of a sexual harassment complaint filed against him--and in the process, suggests that sexual harassment is a significant problem at the network:
Harold Reynolds, one of ESPN's most visible analysts and a longtime panelist on "Baseball Tonight," has left the network in the wake of one or more incidents of sexual harassment.
Three people who work at ESPN and were familiar with the case said the cause was a pattern of sexual harassment, apparently culminating in a recent incident involving one of the network's young production assistants . . .
Harassment charges are nothing new at ESPN, which operates out of a sprawling "campus" in relatively isolated Bristol, Conn., and employs many production assistants in their early 20s. The network has an extensive program of education and sensitivity regarding gender issues and an elaborate system for pursuing claims of sexual harassment.
Keith Olbermann of MSNBC, a former ESPN host, told The New York Observer in 2004 he had testified in "three or four major cases at ESPN."
Among the prominent ESPN personalities accused of improper behavior in the past is Mike Tirico, who will debut as the play-by-play man for "Monday Night Football" in the coming season. He was suspended by ESPN in 1992 for what were reported at the time to be allegations of sexual harassment. Another host, Jason Jackson, was fired in 2002, reportedly for harassment.
If these accusations are a true--a big "if" since we've seen no evidence in a court of law--what do they suggest about the power of workplace "situation" on the behavior of employees? In other words, to what extent do the workplace circumstances in which ESPN anchors find themselves--being famous ex-jocks or sports guys around young women in a college campus-style setting--cause or encourage some of them to do really stupid things? Has ESPN created a workplace enviroment akin to a male locker room, or is this really about the individual wrongdoers and not about their workplace?
Note: please see update from 10/31/2006: Harold Reynolds Sues ESPN for Wrongful Termination
Posted By : Michael McCann
Good Info on Law Career Blog re: LL.M. Degrees
Message posted on : 2006-07-26 - 01:02:00
Slightly off topic, but likely of use to some readers: I periodically receive e-mails and questions about the benefits of obtaining an LL.M. degree, or a masters degree or a Ph.D., as well as inquiries about going on the tenure-track law professor market. For some great information on these and other topics, please check out Law Career Blog, which is run by my good friend and colleague, Gregory Bowman. Here are the relevant posts: Pros and Cons of LL.M. Part I, Part II, and Part III.
Posted By : Michael McCann
More on "Donated" Sneakers, Brand Loyalty, and Title IX
Message posted on : 2006-07-25 - 18:42:00
In the last couple of weeks, we've discussed how shoe companies are arguably manipulating children by "donating" high-priced sneakers to young basketball players as a way of building brand loyalty, and also how by only donating to boys, they may be inducing schools to violate Title IX (see The Salivating Army and Justin Jenifer post).
There are two more great stories on this topic. One is by Rachel Bachman of the Portland Oregonian ("Shoe deals sidestep rules on equality in schools," June 12, 2006, archived). She details possible Title IX infractions and interviews a number of key people involved, including a surprisingly-forthcoming Tony Dorado, Nike's national manager for high school basketball, and Tulsa Law professor Ray Yasser, who has handled over 40 Title IX cases:
Hoping to curry favor and associate themselves with budding sports stars, usually in basketball, companies give shoes and gear to high school teams. Nike, Adidas and Reebok sponsor about 300 high school basketball teams nationwide, a widely accepted practice that merely rewards the best programs, some coaches say.
But experts say that when a school accepts free goods for a team of one gender while providing nothing for a team of the other gender, it is breaking the law. Title IX bans sex discrimination in schools, whether in the classroom or sports. And although most high school officials grasp the need to provide equal opportunities and facilities, the issue of private donations to sports teams remains misunderstood.
"The school has an obligation under Title IX to provide equal benefit,"said Linda Carpenter, professor emerita at Brooklyn College and co-author of a book on Title IX. "So if the guys' team receives benefit from Nike in the form of shoes, bags, etc., then an equal proportion of the women's program needs to receive similar benefit."
At many schools, that is not happening. About 75 percent of the high school teams sponsored by Nike, the national leader in basketball-shoe sales, are boys teams, said Tony Dorado, Nike's national manager for high school basketball. That figure is driven by a market in which boys buy far more basketball merchandise than girls do, Dorado said . . .
Nike's goal in sponsoring high school teams is to identify with the nation's best programs and players and boost sales of gear to schools' nonsponsored teams, Dorado said. The idea is to build brand loyalty, and the jackpot is when a player on a sponsored team reaches the NBA, signs an endorsement contract and helps the company sell millions of shoes.
Ray Yasser, a law professor at the University of Tulsa, said he has worked with the Schiller Law Firm of Cookeville, Tenn., to handle about 40 Title IX cases. All of them have settled favorably for the plaintiffs, Yasser said. The issue of schools accepting shoe-company donations for only one gender has come up before, Yasser said, but has not become public because none of his cases went to trial. "The irony of the shoe thing is, every time we've done it, we've raised it, all I had to do is ask the shoe companies," Yasser said. "And if they're giving shoes to the boys, they'll give them to the girls. They're further ahead of the curve than some of the administrators are."
Here's another great piece: Bob Hohler's stunning expose in the Boston
Globe on independent coach/recruiter Thomas J. ``TJ" Gassnola, whose tactics in building "brand loyalty" have earned him a notorious and feared reputation ("$neaker War," July 23, 2006). Check out how Hohler's piece--the first of an of an excellent three-part series on youth basketball and marketing--begins:A brazen foot soldier in a multibillion-dollar war between sneaker makers for the soles of America's youth, Thomas J. ``TJ" Gassnola has peddled basketball dreams to inner-city adolescents across New England despite a lengthy criminal history and prodigious legacy of financial delinquency.
The face of youth basketball in the region for Adidas, Gassnola is a free-wheeling recruiter whose tactics often have clashed with rules set by the National Collegiate Athletic Association to protect amateur athletes who aspire to careers in college sports. Some of his practices underscore the inability of the NCAA and other watchdog agencies to adequately police abuses in summer youth basketball.
A Globe investigation of the sneaker industry's influence on youth basketball in New England found that Gassnola has handed cash to members of his Adidas-sponsored summer travel teams for expenses unrelated to basketball. Several parents of elite players said the Springfield-based recruiter offered them free airfare or Adidas merchandise while pursuing their sons, and another parent said he interpreted Gassnola's sales pitch to mean the recruiter would provide his son improper financial aid. NCAA rules bar amateur players from receiving anything but ``actual and necessary travel, room and board, and apparel and equipment for competition and practice."
The Globe also witnessed Gassnola drive his teenage players in several states, even though his Massachusetts driver's license has been revoked or suspended 24 times and was not valid from 1993 until last month.
It seems like there's a movement afoot to clean up youth basketball, with the first step being exposing what's really going on. Then again, did Hoop Dreams (one of my favorite two or three films of all time) generate any reforms?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-07-25 - 07:23:00
New this week:Sabrina Bosse, Casenote, Is the price of victory just?: Attorney's fees, punitive damages, and the future of Title IX in . . . (Mercer v. Duke University, 401 F.3d 199, 4th Cir. 2005), 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 319 (2006)
Jackie J. Cook, Casenote, Determining who wears the pants in thoroughbred horseracing (Albarado v. Ky. Racing Comm'n, 2004 U.S. Dist. LEXIS 16378, W.D. Ky. July 20, 2004), 2004 THOMAS M. COOLEY LAW REVIEW 635 (2005)
Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes (Larramore v. RIchardson Sports Ltd. Partners, 540 S.E.2d 768, N.C. Ct. App. 2000, aff'd 546 S.E.2d 87, N.C. 2001), 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)
Matthew Levine, Comment, Despite his antics, T.O. has a valid point: why NFL players deserve a bigger piece of the pie, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 425 (2006)
Sue Ann Mota, Title IX after thirty-four years--retaliation is not allowed according to the Supreme Court in Jackson v. Birmingham Board of Education, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 245 (2006)
Brian R. Moushegian, Comment, Native American mascots' last stand? Legal difficulties in eliminating public university use of Native American mascots, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 465 (2006)
Posted By : Geoffrey Rapp
Phil Kessel: Getting Help from a Family Friend or Representation by an Agent?
Message posted on : 2006-07-24 - 22:06:00
But you say he's just a friend.
But you say he's just a friend.
--Biz Marke, from his sublime 1988 song "Just a Friend"
It's not too often when I can invoke lyrics by the great artist, Biz Markie, but they come to mind when reading about the Boston Bruins' contract negotiations with first round draft pick Phil Kessel, a rising sophomore at the University of Minnesota, and Kessel's "family advisor," Wade Arnott.
Here's the deal: although Wade Arnott is an NHLPA certified agent--and a well-respected one at that--who works for the sports agency Newport Sports Management, he is not acting as Kessel's agent in Kessel's contract negotiations with the Bruins.
Rather, he's acting as Kessel's "family advisor" or "family friend."
What's the difference? Well, possibly two things: Arnott is not being compensated in any way by Kessel, and there is no contractual relationship between the two. But those may only be illusory distinctions: even if Arnott were Kessel's agent, his compensation would likely be derived by a 2% or 3% cut of Kessel's contract, and because it's expected that Kessel will sign with Arnott as a client right before he signs with the Bruins as an employee, Arnott will still get that cut as a friend. Moreover, Kessel, like any player, can likely drop Arnott at any time, for any reason, with or without a contractual relationship (meaning the existence of a contractual relationship may not be meaningful).
So why the difference? By Arnott being labeled a "family advisor" or "family friend," Kessel can maintain his NCAA eligibility. So if Kessel's contract talks with the Bruins were to fail, he can return to the University of Minnesota and play there in the 2006-07 season. In contrast, if Kessel were to formally sign with Arnott, NCAA rules dictate that he would immediately forfeit his collegiate eligibility.
While I understand that this arrangement bolsters the negotiating power of amateur players, is the NCAA really fooling anyone by engaging in name semantics? If they are really worried about the undue influence of agents (a legitimate concern) why are they letting the very same agents get around the rules by acting as "family friends"?
Posted By : Michael McCann
My New Law Review Article on Social Psychology, Calamities, and Sports Law
Message posted on : 2006-07-23 - 13:19:00
A draft of my article Social Psychology, Calamities, and Sports Law, 42 Willamette Law Review __ (forthcoming, 2006) is now available for download on SSRN for free, right beneath the article abstract. I hope you give it a read. Through social psychology, the article addresses such topics as the future of the New Orleans Saints; how the fear of catastrophic weather influences where players want to play; natural disasters and franchise relocation; the NFL pat-down policy and stadium security; and communicable disease and restrictions on scouting and player contracts. If you have any thoughts, I would very much welcome them by e-mail (mmccann[at]mc.edu), particularly since the article is only in draft form. Thanks!
Posted By : Michael McCann
World Poker Tour Target of Antitrust Case
Message posted on : 2006-07-23 - 10:13:00
With the World Series of Poker underway in Las Vegas, it's fitting that Dewey Ballantine attorney Jeffrey Kessler chose this month to launch an antitrust case against the World Poker Tour on behalf of champion players including Chris Ferguson and Howard Lederer. The AP's story is here, and the Poker Prof comments here.
The plaintiffs argue that WPT Enterprises Inc. made them waive lucrative rights to use their images and names to promote products and video games before they could enter WPT tournaments. . . . [T]he suit accuses WPT Enterprises of "price fixing" and "group boycotts" by colluding with 12 member casinos to prevent players from entering tournaments unless they forfeit their rights.
Kessler, according to his firm's web site, "one of the most prominent sports lawyers in the country," brings significant professional sports antitrust experience to the case. And the sports law comparision is obvious, as Kessler emphasized:Kessler said he has tried similar suits that have changed the way major sports businesses run, including the NBA and NFL.
"Imagine if they were to have said to John Elway in the NFL, 'Well we should just be able to use your image for any product or service that we want,'" Kessler said. "No professional sport has been able to get away with that and the same will be true with respect to the World Poker Tour."
Posted By : Geoffrey Rapp
Basketball Player Sues Yearbook After He's Indecently Exposed
Message posted on : 2006-07-23 - 09:50:00
A New Jersey high school basketball player has sued his school district and the editors of his high school yearbook after a yearbook photo appeared in which portions of his genitals were visible. The New Jersey Law Journal has the story:Tyler Bennett of Colts Neck claims he suffered emotional distress because his genitals were partly visible in a basketball game picture in his 2001 school yearbook.
The suit says Colts Neck High School authorities acted slowly to suppress the yearbook, worsening the distress Bennett suffered as a senior the next year.
And there's a novel issue: Does the publisher of such a picture violate child pornography laws if publication was inadvertent?
So far, the answer to that question has been no. Indeed, the whole litigation has been a dud for the plaintiff. In 2005, a trial judge cited Bennett's lack of evidence of psychological harm and found no basis for a suit under the Tort Claims Act. On June 23, an appeals court affirmed the dismissal.
Undeterred, plaintiff's attorney Steven Kessel notified his adversaries this month that he will seek review by the state Supreme Court. He is drafting an appeal that raises the issues anew and will set off a new round of defense briefs in the case, Bennett v. Board of Education, Freehold Regional High School District, Mon-L-4700-03.
High school athletes – like all athletes – assume certain risks when they take the court. Had Tyler Bennett been elbowed during practice, he would not have been able to recover (absent unusual circumstances). This case poses some interesting questions about the degree to which athletes assume the risk of other likely results of participating in high school sports. Here, does an athlete assume the risk that his private areas may be visible, and possibly be recorded and published by student journalists?
The most damning piece of evidence for the plaintiff?The offending photograph, taken from a low angle, showed Bennett shooting a basket on a day he wore boxer shorts instead of an athletic supporter . . .
Hat tip to my colleague Howard Friedman for the link.
Posted By : Geoffrey Rapp
Sign of the Apocalypse? Bill Belichick's Alleged Affair and The Boston Herald's Front Page
Message posted on : 2006-07-21 - 21:22:00
It might seem peculiar for someone who contributes to a sports law blog to question a major regional daily devoting nearly its entire front page to a sports and the law issue. But I ask that you to take a look at the front page of yesterday's Boston Herald:
Yes, Patriots coach Bill Belichick has been named as the dreaded "other man" in a messy New Jersey divorce case involving Sharon Shenocca, who worked as a receptionist for the Giants while Belichick was the team's defensive coordinator. According to Vincent Shenocca, his wife and Belichick have had a long-term extra-marital relationship, with Belichick buying her many gifts, including "expensive clothing, pocketbooks, watches, a treadmill and maid service� and he also allegedly flew her to be with him at Super Bowl XXXVIII, which the Patriots won. Vincent asserts that he has pleaded with Sharon to break-up with Bill (who separated from his wife Debbie last year), but she won't. So now Vincent wants to divorce Sharon, who might soon be spending more time with Bill.
I'm not sure that the late and great Aaron Spelling could have scripted a better story. And it's so interesting because it mixes a hugely successful sports figure with a soap opera scandal. I know I read the story--which was a Herald scoop--with great interest (I am a lifelong Patriots fan after-all).
But did this story warrant nearly the entire front page, especially at a time when there's a major crisis occurring in the Middle East with many people dying and, more locally, Boston is embroiled in the Big Dig Disaster? Even if the Boston Herald believes that its readers want to read this story, and even if the paper is a tabloid daily, did it have a journalistic duty to treat its editorial decisions with more gravity? And as you can see, the paper even used the top of the same front page to tell readers about Josh Beckett's contract extension!
So is the Herald's front page a sign that sports now attract too much attention? A critic might say no--readers want a break from all of the bad news going on (although a couple's divorce is also bad news, if not quite so terrible), and if they want to read about more depressing things, they can go buy a Boston Globe, turn on a TV, or go on the Internet. What do you think?
Posted By : Michael McCann
The Salivating Army? Shoe Companies that Donate Free Sneakers to Youth Basketball Players
Message posted on : 2006-07-21 - 14:54:00
A couple of weeks ago, we discussed Eli Saslow's excellent piece in the Washington Post on Justin Jenifer, the 10-year old basketball phenom who is already being aggressively recruited by shoe companies. This theme of marketers' exploitation of kid athletes resonates again in Mark Alesia's excellent piece in the Indianapolis Star on shoe companies "donating" free sneakers to youth basketball teams that often feature elite players. Interestingly, the schools receiving these sneakers may be violating Title IX, since only the boys' teams tend to get the donations, while the girls' teams do not. As a result, the boys get free sneakers while the girls end up paying a lot of money for the female version of the same shoes.
I think there are two stories going on here.
1) The Gender Equity Story: the obvious, but still important story. Shoe companies supplying sneakers to boys but not girls is probably a wide-spread phenomenon, and is probably apparent in every state. The disparity in treatment probably comprises a violation of
Title IX, which takes a fairly inclusive approach to measuring equal athletic opportunity students of both sexes. In fact, Title IX expressly instructs the U.S. Department of Education's Office for Civil Rights to ensure that there is "equivalent treatment, benefits, and opportunities" in equipment and supplies (among other things). This is the kind of story that got Title IX passed in the first place, and one that further validates its existence.
2) The Sneaker Marketing Story: the more interesting story, I think, because it's subtler and yet potentially far more significant. Consider
recent comments by Susan Linn, co-founder of the
Campaign for Commercial Free Childhood, told to Julie Sabatier of the
New Standard:
"Essentially, it's a way to promote brand loyalty. It makes the corporations look as though they're doing a positive thing. It looks like corporate social responsibility, but in reality, its marketing."
In a way, Linn's comments remind me of a
complaint against the tobacco industry and their public service advertisements: those PSAs seem to provide a forum for companies with dubious histories to rectify their image, which turn may help their sales (and thus achieve the opposite of what the PSAs were ostensibly designed to achieve). In a recent
Wisconsin Law Review article, I outlined a similar idea in regards to fast food companies promoting "eat well" campaigns, while simultaneously promoting the consumption of Big Macs and Happy Meals etc.
It would be interesting to hear what these shoe companies have to say about their donations, but they have declined comment. I imagine that they have concluded that the value of the brand loyalty they are establishing with boys is worth more than the cost of the donated
sneakers, while for girls, they have reached the opposite conclusion: the value of establishing that type of brand loyalty is less than the cost of donations.
Economically-sensible, perhaps, but socially desirable?
Note: the picture above is from Aaron Renier's art collection.
Welcome Travis Tygart
Message posted on : 2006-07-20 - 23:15:00
I am delighted to announce that Travis Tygart will be filling in for me as a guest contributor next week. Travis is the Senior Managing Director, General Counsel of the United States Anti-Doping Agency (USADA). USADA is the independent, nongovernmental anti-doping agency for Olympic sports in the U.S. and is dedicated to protecting the integrity of competition and the rights of clean athletes to participate in drug free competition.
Travis is responsible for all legal matters of USADA including the handling of alleged doping offenses in arbitration before the American Arbitration Association and the Court of Arbitration for Sport. He was responsible for the investigation into the designer steroid THG and the BALCO drug conspiracy. Travis was involved with drafting the USADA Protocol for Olympic Movement Testing and the World Anti-Doping Agency's Code. He served as the legal expert for the WADA Independent Observer Team at the 2002 Commonwealth Games in Manchester, England and was a USADA representative at the 2003 World Conference on Doping in Sport in Copenhagen, Denmark. Travis has been a participant at the Council of Europe, the Association of National Anti-Doping Agencies and was a presenter at the WADA OOC Symposium in October 2003.
While Travis will be unable to answer specific questions about legal matters involving USADA (his client), his insight and experience with respect to the use and testing of performance enhancing drugs will make an interesting read.
Posted By : Rick Karcher
Steroids in Golf?
Message posted on : 2006-07-19 - 21:40:00
By now you are probably tired of reading and hearing about the Bonds indictment and his possible suspension by MLB. But you might not have read or heard about the latest in the "war on steroids": Testing for steroid use has officially begun within the sport of golf ("Golf Tournament Doing Drug Testing"). According to the press release, testing will be administered at the World Amateur Team championship in South Africa at the end of October. What's amazing is that the tournament directors don't even think at the moment that there is much use of performance-enhancing drugs in the sport. They support drug testing in golf "to put the sport into line with the World Anti-Doping Agency's code governing all sports, and to stop performance-enhancing substances from creeping into the game."
Will somebody please STOP THE MADNESS! First and foremost, why test for steroids when there is no evidence whatsoever of any steroid use in the game of golf? Secondly, why would they think that such use would "creep" into the game? Are they afraid that golfers are going to start bulking up in order to give them more distance on their drives? Is "muscle recovery time" a big issue among golfers these days? Basically, it's complete speculation!
I came across an interesting article on this subject written by Matthew Rudy of Golf Digest ("Steroids: How real a threat?"). Rudy notes that no professional tour has specific language in its rules prohibiting performance enhancing substances. The PGA and LPGA tours' professional conduct rules prohibit players from using or selling illegal substances, but neither tour has a testing procedure in place to detect any kind of illegal drug, recreational or otherwise. PGA Tour commissioner Tim Finchem says the tour would not hesitate to incorporate a random drug-testing program IF it had evidence of a pattern of use by players:
"I don't think it is naive to think our players follow the rules. Maybe there are doctors who would say that steroids would help a player hit a golf ball farther. We could debate that, and we could debate that the side effects might hurt a player other ways. I don't go there. We have a rule, and we expect players to follow it. If we have credible evidence to think that a player was taking them, we would consider taking other measures. The speculation about steroids in golf isn't surprising. There is so much focus on steroids in other sports. There's an influx of more athleticism in our sport, and the workout regimens our players are undergoing. And there's a focus on the increased distance players are hitting the ball. That's what it is -- speculation. We rely on our athletes to call the rules on themselves. We have a long tradition of players following the rules, even when some of the rules are odd."
I suppose that if you believe that steroid use would help a hitter drive a baseball farther, then to be consistent you must also believe that steroid use would help a golfer drive a golf ball farther. All this time, I suspected that the reason professional golfers have been driving the ball better over the years was mostly attributed to technological advancements in golf clubs, golf balls, and training equipment.
Tiger, you're next....
Posted By : Rick Karcher
New Sports Law Scholarship
Message posted on : 2006-07-18 - 04:06:00
New this week:Lindsay M. Korey Lefteroff, Student Article, Excessive heckling and violent behavior at sporting events: a legal solution?, 14 U. MIAMI BUS. L. REV. 119 (2005)
Clary Moorhead, Note, Revenue sharing and the salary cap in the NFL: perfecting the balance between NFL socialism and unrestrained free trade, 8 VAND. J. ENT. & TECH. L. 641 (2006)
Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006)
Stphen F. Ross & Stefan Szymanski, Antitrust and inefficient joint ventures: why sports leagues should look more like McDonald's and less like the United Nations, 16 MARQ. SPORTS L. REV. 213 (2006)
Geoffrey Christopher Rapp, Affirmative injunctions in athletic employment contracts: rethinking the place of the Lumley rule in American sports law, 16 MARQ. SPORTS L. REV. 261 (2006)
Ola Olatawura, The "theatre of dreams"?--Manchester United FC, globalization, and international sports law, 16 MARQ. SPORTS L. REV. 287 (2006)
Holly Hogan, Student Article, What athletic departments must know about Title IX and sexual harassment, 16 MARQ. SPORTS L. REV. 317 (2006)
Matthew R. Wilmot, Baseball Bats in the high tech era: a products liability look at new technology, aluminum bats, and manufacturer liability, 16 MARQ. SPORTS L. REV. 353 (2006)
Susan K. Menge et al., 2005 annual survey: recent developments in sports law, 16 MARQ. SPORTS L. REV. 381 (2006)
Paul M. Anderson, Book Review, Reviewing Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX, 16 MARQ. SPORTS L. REV. 461 (2006)
Darren R. Merten, Index: Sports law in law reviews and journals, 16 MARQ. SPORTS L. REV. bi-bvi (2006)
Posted By : Geoffrey Rapp
New Sports Law Scholarship
Message posted on : 2006-07-14 - 19:05:00
New this week:W. Burlette Carter, The Age of Innocence: the first 25 years of the National Collegiate Athletic Association, 1906-1931, 8 VAND. J. ENT. & TECH. L. 211 (2006).
Amanda Schlager, Note, Is the suite life truly sweet? The property rights luxury box owners actually acquire, 8 VAND. J. ENT. & TECH. L. 211 (2006).
Posted By : Geoffrey Rapp
Open Letter to Bud Selig
Message posted on : 2006-07-14 - 07:30:00
Dear Mr. Selig:
I understand that you are disappointed and angered by Jason Grimsley's recent admission that he used the human growth hormone (HGH) and by his statements that other major leaguers use the banned substance. Last month in your “open letter to fans� you said that you will not tolerate the use of HGH and other performance-enhancing drugs in baseball.
It is time to get aggressive with the union, more so than you have ever been before. On the eve of negotiations over a new collective bargaining agreement, and with the fans 100% on your side in "the war on steroids," the timing could not be better. Major League Baseball should not waste its time and money on research to determine how to detect HGH, because while it is doing that, somebody else will be developing the next masking agent or magic "whizzer" apparatus to prevent MLB's new testing methodology from detecting the HGH. By the time your new test is ultimately developed, players will be experimenting with gene therapy and the replacement of human tendons with animal tendons.
So how do you fix the problem? Suspensions and fines for positive drug tests are not the answer because (with a few limited exceptions) players are not testing positive! In your open letter, you alluded to the powerful investigative efforts of the FBI and that players are no different from anyone else in our society. Maybe you could consider how the FBI catches people who lie and cheat -- they use lie detector tests. For example, the FBI is now administering polygraph tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks. As one particular FBI director noted, "There is no more powerful tool in our tool bag than lie-detector tests."
Now, I know what you are thinking: Drug testing and discipline is clearly a "mandatory" subject as defined in the National Labor Relations Act (i.e. “wages, hours and conditions of employment�) that requires you to negotiate with the union because it pertains to conditions of employment. So how do you get the union to agree to polygraph testing with respect to performance-enhancing substances (including gene therapies, surgeries, etc.)?
Here's how. We all know the first question that union head Don Fehr is going to ask you at the bargaining table in a few months: “What's your proposal on revenue sharing?� You should take the position that revenue sharing is an issue that only concerns the teams and is not a mandatory subject that you are required to negotiate with the union because it does not relate to players' wages. Mr. Fehr will respond that revenue sharing impacts wages because if large market teams must pay a certain percentage of their revenue to small market teams, it constitutes an expense that impacts a team's bottom line and the amount it is able or willing to spend on payroll. Of course, so does a team's stadium lease expense and the amount it charges customers for tickets, hotdogs and beer, but those are not mandatory subjects. For example, if General Motors enters a joint venture with a competitor agreeing to share a percentage of revenue, it obviously impacts GM's bottom line and indirectly impacts how much it pays its workforce, but it is not a mandatory subject that needs to be negotiated with the union. Simply tell Mr. Fehr that you will negotiate revenue sharing if the players agree to periodically take lie detector tests regarding their use of performance-enhancing substances, surgeries, therapies and the like.
Now when he jumps up and down and screams at you such phrases like “decertification,� “strike� and “unfair labor charge,� stick to your guns. Because even if
you have to spend legal fees to validate your position in front of the NLRB or in a court of law, the legal fees will be much cheaper than funding research to detect HGH and, more importantly, much more effective in catching cheaters!
Sincerely,
Rick Karcher
Posted By : Rick Karcher
New Article on Bill Walker and Possible Legal Options for NBA Draft Eligibility
Message posted on : 2006-07-12 - 17:45:00
Tom Groeschen of the Cincinnati Enquirer has a new and interesting article on the possible legal options for Bill Walker, the high school phenom who has good reason to argue that he should be eligible for the 2007 NBA Draft ("Lawyer: Walker Has a Case", 7/11/2006). Yesterday we discussed Chad Ford's article on Walker's potential arguments, and those of O.J. Mayo.
I am the lawyer referenced in Groeschen's article title, and while I do believe that Walker would have a strong case (as I discuss in the article), I would like to add the following proviso: if Walker were to pursue eligibility for the 2007 NBA Draft, his best initial approach would not be litigation with the NBA, but rather a concerted and constructive effort to discuss the matter with the NBA, and hopefully persuade the league to reconsider its thinking; litigation here, as in every dispute, should only be used if all reasonable attempts at negotiation fail. Moreover, being a litigant can be stressful and emotionally-draining, and that's especially true in a highly-publicized trial.
But as we also know, sometimes all reasonable efforts at negotiation do not succeed, and litigation is the only and correct option to right a wrong. Should that occur in this instance, I believe that Walker would have an extremely strong case.
Posted By : Michael McCann
Does a "Diploma Mill" School Have a Defamation Claim Against the NCAA?
Message posted on : 2006-07-12 - 11:00:00
Last week the NCAA released its second list of high schools from which it will no longer accept transcripts that supposedly provide easy academic solutions for high-profile athletes. According to Pete Thamel of The New York Times, none of the 25 disqualified schools on either list are recognizable athletic powerhouses, with the exception of maybe Christopher Robin Academy in Queens where New York City students have long gained high school credits during the summer and winter breaks ("N.C.A.A. Schools' List Stirs More Controversy"). However, the NCAA also announced a separate list of 22 schools that it had cleared for prospects for only the fall of 2006 and that will be subject to review by the NCAA, which list includes some traditional prep powerhouses with strong academic traditions such as Oak Hill Academy in Virginia, Bridgton Academy in Maine and Fork Union Military Academy in Virginia.
According to Steve Smith, who has coached basketball at Oak Hill for 23 years: "Its embarrassing to be on the list with some of those schools. Twenty-two schools in the whole country, and we're one of them. To me, it makes the N.C.A.A. look like it's not credible." Oak Hill president Michael Groves added: "I'm absolutely stunned on a couple of levels. I've never spoken with anyone from the N.C.A.A. I'm a bit outraged that I'm learning about a list from reporters that's damaging Oak Hill's reputation."
Last month on the blog, I discussed how a claim against the NCAA by an affected prep school alleging a constitutional violation would most likely fail because the U.S. Supreme Court has made clear that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools. But the statements made by Smith and Groves at Oak Hill have connotations of a possible defamation claim against the NCAA, which could possibly be a much tougher case for the NCAA especially since Oak Hill is obviously not a voluntarily member of the NCAA and thus not subject to its rules and regulations. Under most state defamation laws, entities may be defamed with respect to institutional characteristics such as honesty and efficiency.
In a defamation case, Oak Hill's damages would most likely be presumed because its inclusion on the list of 22 schools would be a libel action (in slander, a plaintiff typically must prove pecuniary loss). Oak Hill could argue that the fact of being included on the list is essentially a statement made by the NCAA that Oak Hill's (or any other school on the list for that matter) quality of education is poor and that some or all of its offered courses are simply not worthy of recognition by any college or university. Such statements are most likely "defamatory" by definition because the list is a national publication that could easily deter prospective students (athletes and non-athletes) from enrolling.
It would also seem that the NCAA would have a difficult burden to prove the truth of its assertions when Oak Hill has such a strong academic tradition (Oak Hill opened in 1878, costs $21,000 a year in tuition and has about 50 staff members). Indeed, the NCAA didn't even visit Oak Hill's campus. According to NCAA representative Kevin Lennon, irregularities in paperwork caused the NCAA to flag some schools despite not having visited them and that a "time crunch" prevented the NCAA from visiting every school. Smith said: "I'm sure if they come visit, we'll be off the list. But you can't take back what they already did. To me, it's a total sham, a joke." Oak Hill is not the only school listed that wasn't visited by the NCAA. The Associated Press reported that Lt. Gen. John E. Jackson Jr., president of Fork Union Military Academy in Virginia, said NCAA officials have neither visited its campus nor expressed specific concerns about its curriculum either.
It's interesting that the NCAA chose to single out specific schools by name. Couldn't the NCAA instead have listed all of the specific criteria that a high school must meet in order for a transcript to be accepted (i.e. minimum number of faculty members, minimum number of hours of instruction in the classroom, etc.)? The NCAA might want to reconsider what it's doing on this one....
Posted By : Rick Karcher
Sports Law Blogging from Japan
Message posted on : 2006-07-12 - 06:14:00
I'm in Japan, with limited internet connectivity, so my blogging has been light of late. It's been hard to obtain much information on sports developments, largely due to the time difference (the MLB all star game, for example, was at about 3 am local time). The one sporting event that I have been able to reliably catch on TV is sumo wrestling. A major tournament appears to be underway. One of the most striking features, to me, has been the presence and performance of a number of Sumotori from the former Soviet Union and other "Iron Curtain" countries. Not since the Russo-Japanese War have this many Russians, Estonians, Georgians and Bulgarians done battle with Japan's heroes. As with American sports, in particular basketball, baseball and hockey, globalization means that the best of the best and the fattest of the fat will find their way to the appropriate professional markets. This should remind us all of the often underestimated significance of immigration in sports law.
Inspired by these televised wrestling matches (which appear to be refreshingly real, although the freakonomicists beg to differ), I've started to read UMICH law professor Mark West's critically commended book Law in Everyday Japan: Sex, Sumo, Suicide & Statutes.
Posted By : Geoffrey Rapp
O.J. Mayo and Billy Walker to Challenge NBA Age Restriction?
Message posted on : 2006-07-11 - 11:12:00
ESPN's Chad Ford has an excellent and extensive piece on two amateur players who may put the new NBA age restriction to the test next year: O.J. Mayo (right) and Billy Walker (left), the top two high school seniors in the country. Both players are one year older than a traditional high school senior and, for different reasons, if they decide to drop out of high school and not graduate, they could argue that they "would have graduated" this year. If successful in that argument, they would then be eligible for next year's NBA Draft, since according to the new CBA between the NBA and NBPA, an American amateur player must be at least 19 years-old on December 31 of the year of the NBA Draft (both Mayo and Walker would be in 2007) and that at least one NBA season must have passed from when he graduated from high school, or when his graduating class graduated from high school, and the NBA Draft. If eligible, both would likely be lottery picks, with Mayo possibly going second overall, right after Greg Oden.
Walker has the stronger case for arguing that he "would have graduated in 2006" because the Ohio High School Athletic Association just announced that he should have been a senior this past year. Why? Because a transcript error that resulted from transfering between different schools caused his credits to be counted incorrectly. So according to the Ohio High School Athletic Association (which obviously has no stake in whether Walker can turn pro), Walker has completed four years of high school and four years of high school basketball.
Mayo's claim is based on the fact that he was held back a year early in his schooling, and would have graduated in 2006 but for that, and that he has played high school ball since he was in the 7th grade.
Ford interviews Tim Frank of the NBA and me for the story. Perhaps not surprisingly, we don't agree on whether the players (and especially Walker) should be eligible:
NBA spokesman Tim Frank said that he believes neither player is eligible for the 2007 draft. "It's when you graduate (or when your class would have graduated), not when your eligibility is up," Frank said via e-mail. "So just because Walker is ineligible [to play high school basketball], he still hasn't graduated, so his class is the 2007 class."
"Mayo being held back eight years ago does not give you a claim to [the 2006 graduating class] as his 'original class.' " Frank said. "He is clearly scheduled to graduate in 2007."
However, sports law expert Michael McCann disagrees.
McCann, a law professor at the Mississippi College School of Law, is the author of the popular Sports Law Blog. He was part of the legal team that represented Ohio State running back Maurice Clarett in his (unsuccessful) legal challenge of the NFL's age restriction.
"Billy Walker should be eligible for
the 2007 NBA Draft," McCann told me in an e-mail interview. "An honest interpretation of the CBA dictates that conclusion: His high school class would have graduated, and he would satisfy the requirement that he be at least 19 years old during the calendar year in which the 2007 NBA Draft is held. I believe that the NBA would ultimately recognize the expertise of the Ohio High School Athletic Association (which presumably knows its schools better than the NBA), because if it doesn't, it may unwittingly invite Walker to challenge the age restriction in court, something which the NBA likely wants to avoid."
"Walker's claim for eligibility appears stronger than that for Mayo, although Mayo's situation invites the question of how to measure one's graduating class," McCann said. "Mayo could argue that it should be measured from when he originally began schooling, although the NBA would likely argue that it should be measured from when he began high school. Both arguments are rational, and would likely require the opinion of education experts. The fact that he was playing high school ball as a seventh-grader seems to suggest what his school thought of his class."
We then discussed the implications of either Mayo or Walker bringing a lawsuit, and the applicability of Clarett v. NFL in that lawsuit:
"Unlike when Maurice Clarett challenged the NFL's age eligibility rule, Walker's lawsuit would enjoy empirical data showing that prep-to-pro players have, on average, performed better than any other age group to enter the NBA," said McCann. "Moreover, while it is commonly assumed that Clarett v. NFL is the definitive case on age restrictions, it isn't. It is the holding of one United States Court of Appeals, and it is unclear how the other 12 United States Courts of Appeal would hold on the matter.
"Even though the NBA's age restriction has been collectively bargained, a good argument can be made that it only affects parties (prep players) outside of the two collective-bargaining units (the NBA and the NBPA), and thus should not enjoy immunity from antitrust laws."
As a separate matter, we also discussed the legal implications of why 19-year old international players are able to more easily enter the NBA Draft than are 19-year old American players. While both groups of players must be at least 19 by December 31 of the year of the draft, the international players do not have a one-year waiting period after high school.
"Should a litigation occur, a court would likely wonder why there exists a more restrictive rule for American amateur players than foreign players, and should it apply antitrust law, a court would likely compare the respective NBA performances of those two groups," McCann said.
This will be a very interesting to story to watch. Ford's article also states that while both Mayo and Walker presently intend to attend college, they would rather go to the NBA directly if possible. The article addresses other topics as well, and is well worth a read (and I strongly recommend ESPN Insider if you don't yet subscribe, especially since you also get ESPN The Magazine).
On three separate notes: 1) thanks to Michael Ryan of Bearcat News for his excellent insight earlier in the day; 2) thanks to Jeff Clark of the highly-addictive Celtics Blog, who wrote a nice posting about the ESPN article on the equally-highly-addictive True Hoop; and 3) since the ESPN article is bringing us a large number of new visitors today, welcome to our blog!
Posted By : Michael McCann
NBA Earnings as a Marathon, not a Race: Lebron James to Take Less Than Max
Message posted on : 2006-07-10 - 14:53:00
According to ESPN's Stephen A. Smith, Lebron James has informed the Cavaliers that while he is willing to sign an extension, he will not sign a max contract (5 years, $80 million), which the Cavs prefer. Instead, he is only willing to sign a 4-year extension worth $60 million. Considering that NBA contracts are guaranteed, you might wonder why he wouldn't want to maximize his earnings and take as much money as is on the table? It's because of this:
With the NBA's collective bargaining agreement set to expire at the end of the 2010-11 season, James could be positioning himself for an even bigger payday as a free agent when the cap goes up. Under a new agreement, James and other big stars could be in line for deals in the neighborhood of six years and up to $150 million.
James' age may be a factor here as well. Incredibly, he's still just 21 years-old. And when his 4-year extension expires, it will be the summer of 2011 and he will be 26 years-old. It would seem that he would be better positioned for the $150 million, 6-year contract at that point than if he were 27 years-old. But then again, it probably won't matter because he'll likely be the NBA best's player and able to command the max regardless of whether he is 26 or 27.
But here's where age may matter: let's think about James' bargaining position after that $150 million, 6-year contract expires: he would undoubtedly be in a better position for another lucrative contract at age 33 than at 34. So perhaps Lebron and his agent, Leon Rose, are astutely thinking ahead, to a time that may seem very far off (2017 or 2018) but is highly influenced by what they do now, in 2006.
Posted By : Michael McCann
Virginia Sports and Entertainment Law Journal's Article Submissions Drive
Message posted on : 2006-07-10 - 14:05:00
The Virginia Sports and Entertainment Law Journal ("VaSE") is conducting a submissions drive for possible publication in the journal. So if you are a law professor, other type of professor, practicing attorney, judicial clerk, law student, or graduate student who has written a substanative piece that pertains to sports or entertainment law, please consider submitting it. Unlike some law reviews, VaSE accepts note submissions from other schools' students, so if you are currently a law student, you don't have to be one at the University of Virginia School of Law to submit.
I was Editor-in-Chief of VaSE from 2001-02 and published an article in VaSE in 2004. I believe it is an excellent scholarly publication with an outstanding reach into the sports and entertainment world. It certainly helped me break into the industry. And it's readership includes sports agents, sports litigators, team executives, music industry executives, recording studios, and perhaps less interesting academic types--people like me and law librarians.
To submit a piece, all you have to do is attach your writing to an e-mail and send it to Robby Forbes, VaSE's current Editor-in-Chief, to his e-mail address: rdf4v[at]virginia.edu. It's as easy as that.
Give it a shot!
Posted By : Michael McCann
Woman Fights Boras Over Sale of Anti-Damon Merchandise
Message posted on : 2006-07-07 - 08:18:00
Curt Brown of The Standard-Times reported last week about a dispute between Johnny Damon (along with his agent Scott Boras) and Ann Sylvia. Ms. Sylvia operates a business out of her home, which she started in 2001, specializing in the sale of baby clothing and household decorations/accessories on eBay. More specifically, she sells "Damon Sucks" bibs, onesies and toddler T-shirts on ebay.
Sylvia, of New Bedford, Massachusetts, was hurt first when the Red Sox' former star signed with the Yankees for $52 million. She was hurt a second time when Boras invoked the intellectual property rights to Damon's name and blocked the sale of the parody items on eBay using eBay's VeRO program. Damon and Sylvia subsequently compromised, and the settlement terms require her to delete the specific references in her description of the merchandise that identifies the products as being critical of Johnny Damon. The merchandise will just say "Damon Sucks," but will not identify the person as Johnny Damon, as it previously did.
Sylvia's unique perspective on her dispute with Boras is quite interesting and worth reading. She received the help of an attorney at the Public Citizens Litigation Group, Greg Back, who analogized the "Damon Sucks" parody to the parodies that were the subject in Cardtoons v. MLBPA and held to be protected by the First Amendment. Back opined as follows:
I think the case closest on point to your situation is the Cardtoons case. Cardtoons makes parody trading cards with caricatures of Major League Baseball players along with critical commentary. MLB sent a cease-and-desist letter, and Cardtoons sued for a declaratory judgment. The court held that even though the cards ran afoul of the Oklahoma right of publicity statute, they were protected by the First Amendment. The court wrote that "the cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball. While not core political speech (the cards do not, for example, adopt a position on the Ken Griffey, Jr., for President campaign), this type of commentary on an important social institution constitutes protected expression." MLB argued that the cards should not be protected because Cardtoons was selling them for a profit. In response to this, the court wrote, "we see no principled distinction between speech and merchandise that informs our First Amendment analysis. The fact that expressive materials are sold neither renders the speech unprotected, nor alters the level of protection under the First Amendment. Cardtoons need not give away its trading cards in order to bring them within the ambit of the First Amendment."
It's refreshing to see somebody play "hardball" with Boras, and
win. Maybe the owners could learn something from Ms. Sylvia....
Posted By : Rick Karcher
Hedge Funds Investing in "Athlete Futures"
Message posted on : 2006-07-06 - 22:27:00
At the Sports Economist blog, Skip Sauer has some interesting thoughts stimulated by a Wall Street Journal article about a European hedge fund that invests in "transfer rights" for young, potentially undiscovered soccer players. The fund profits when athletes' contracts are bought by more prominent, weathly franchises.
Posted By : Geoffrey Rapp
Sports Policy Blog
Message posted on : 2006-07-06 - 11:39:00
Sports Law Blog reader Sokki Chen, a sports management student at the University of Massachusetts who this summer is working at the International Paralympic Committee in Germany, has started a new and very interesting blog: Sports Policy Blog. Her blog has some excellent posts to start:
It should be a great blog to check out regularly.
Posted By : Michael McCann
Good Player Personnel: Is it Moneyball, Scouting, or Sheer Luck?
Message posted on : 2006-07-05 - 17:54:00
Michael Bond of New Scientist Magazine has a fascinating interview with statistician Nassim Nicholas Taleb ("Life is Unpredictable: Get Used to It," 7/5/2006, subscription only), in which Taleb argues that humans are terrible at making predictions and that they tend to place false confidence in statistical models that yield results perhaps no better than mere guessing or sheer serendipity. Along those lines, the idea goes, we strive for explanations and patterns because they give us a greater sense of control, even when those explanations and patterns may be completely illusory. Here are some excerpts from his comments:
Our brains operate on autopilot most of the time . . . Our track record [for predictions] is quite dire. Look at the net, computers, lasers. The internet was designed as a military system, not for chat rooms. The person who first marketed computers didn't think he would sell more than five. The laser was designed by a physicist who had no idea how it might be used. You can't even forecast something that would affect us tomorrow - revolutions, wars, epidemics, political changes, economic variables . . . A forecast is irrelevant unless you have an error rate on it. But if this happened, these people would realise there was no point in forecasting, because their error rate would be so monstrous . . . [Successful forecasting is just luck], and you need a lot of luck to forecast things accurately.
[Question: But don't people make predictions based on history all the time?]
As well as our ability to concoct empirically flawed narratives to explain past events, there are biases in history that we don't seem to be aware of and that make us overestimate the causal links between events: for example, when you see only the winners and not the losers. When you look at the fossil record, you see only the species that left a fossil. You cannot make a generalisation of all species just from fossils - you have to take into account the species that left none. History has a lot of hidden pockets. You can't take it any more seriously than a visit to a museum.
What do Taleb's conclusions suggest about things like Moneyball and the rise of more complex-statistical models for player personnel decisions? Do Moneyball teams succeed for reasons that have nothing to do with empiricial approaches or taking advantage of "market inefficiencies"? Are "market approaches" then receciving too much credit (or blame) in management decisions (e.g., whether it is a good idea to draft or sign a particular player)? Of course, Nassim's conclusions don't validate traditional scouting models either, because they too would invite the same after-the-fact explanations for lucky results.
So statistics or not, is team management really about luck and coming up with an explanation later?
Posted By : Michael McCann
New Sports Law Scholarship
Message posted on : 2006-07-05 - 11:49:00
New this week, including a nicely done law review note for which I served as adviser:Tyler Pensyl, Comment, Let Clarett play: why the nonstatutory labor exemption should not exempt the NFL's draft eligibility rule from the antitrust laws, 37 U. TOLEDO L. REV. 523 (2006)
Robert T. Razzano, Comment, Intellectual property and baseball statistics: can Major League Baseball take its fantasy ball and go home?, 74 U. CIN. L. REV. 1157 (2006)
Posted By : Geoffrey Rapp
Cubs Continue Spending Spree: Record Bonus Given to 11th Rounder
Message posted on : 2006-07-05 - 06:45:00
Baseball America's John Manuel reports this week that the Chicago Cubs just gave their 11th Round draft pick Chris Huseby a $1.3 million bonus (first round money), which is the highest bonus ever paid to an eleventh rounder by $750,000 ("Cubs Give 11th-Rounder Huseby Record Bonus"). Huseby is a 6'7" right-handed pitcher out of Martin County High in Stuart, Florida. The Cubs also reportedly gave their 14th rounder, a prep outfielder from Oregon, a signing bonus in the amount of $500,000 (third round money). Recently, I discussed the contract the Cubs just gave to their fifth rounder, two-sport Notre Dame star Jeff Samardzija, who is guaranteed $7.25 million if he makes baseball his primary sport sometime over the next five years.
I have been following the MLB draft each year since I signed my first minor league contract back in 1989, and I can't remember this type of free spending on amateur players since 1996 when Scott Boras had a couple of his draft picks designated as free agents by exploiting a loophole in the Major League Rules regarding the tendering of contracts. I'm not one that questions teams' decisions when it comes to scouting and draft picks because that's their business and that's what they know best, but Huseby's signing is even more intriguing than the Samardzija signing because Huseby had Tommy John surgery in the spring of 2005 and only pitched a total of 5 innings in 4 appearances all spring in 2006! How could the Cubs possibly be that confident about Huseby's projectability having seen him throw only a few innings this past spring and coming off Tommy John surgery last year? Furthermore, in those few one inning appearances, it is reported that he threw in the 90-93 mph range, which is not considered to be "lighting up the radar gun" by any means. I'm just a law professor, but doesn't the fact that he has only thrown 5 innings all spring tend to suggest that maybe he's still not healthy and that maybe he has trouble consistently maintaining that velocity?
According to Manuel: "Huseby's family said it would take first-round money for the righty to bypass college, and the Cubs had enough of a track record on Huseby (including crosschecking him this spring) to feel comfortable rolling the dice." I guess I could understand rolling the dice for maybe $100,000, but for $1.3 million? And it's only the first week of July! Even if the Cubs really want to sign him, they still have plenty of time left before he starts college in the fall in which to negotiate a lower signing bonus figure. Just because the family said it would take first-round money to sign him, doesn't mean they would not have ultimately settled for much less. It's interesting to note that Huseby and Samardzija have the same agent (oops, sorry, I mean "advisor"), who apparently is a long-time friend of Cubs GM Jim Hendry.
Posted By : Rick Karcher
Hoop Dreams: The Missing Link between NBA Draft Age Eligibility and Justin Jenifer
Message posted on : 2006-07-04 - 11:05:00
Chris Graham of the Augusta Free Press has an in-depth look at the new age restriction for the NBA draft, which requires that a player be at least 19 years-old on December 31 of the year of the NBA Draft and that at least one NBA season must have passed from when he graduated from high school, or when he would have graduated from high school, and the NBA Draft. He interviews Paul Haagen, Rick Karcher, and me, and we discuss the rationales behind the new rule. Rick outlines the NBA's business arguments for pursuing it, while Paul and I question the logic behind it, especially considering the empirical data on players who have pursued the NBA out of high school (i.e., they are small, self-selected group who has averaged more points, rebounds, and assists than the average NBA player or the average player of any age group, and that includes high school players who failed to make the NBA and who were counted as "0" in the empirical analysis).
We then discuss different reasons for why it may be difficult for a player to challenge it in court.
Rick describes how the rule only affects players outside of the bargaining unit, and thus why existing players don't have a clear incentive to fight it:
The way I look at this now - from a bargaining standpoint, the union doesn't have an incentive to vigorously fight the owners on this issue. It doesn't affect existing players at all. You're talking about a rule that affects prospective players. Existing players are not affected by it. So the union in the bargaining process isn't giving up much when they agree to this - and in return the existing players are getting something of value in the form of an increased percentage of league revenue from the owners.
I reflect upon my experience as having been one of Maurice Clarett's lawyers in Clarett v. NFL, and discuss the practical difficulties of being a plaintiff in an age-eligibility case:
I think one of the difficulties for a player to sue is that they'll automatically be labeled a troublemaker, somebody who's trying to break the system, a maverick. It's going to take a lot for a 17- or 18-year-old to be a plaintiff in a litigation where much of the media and most of the fans will be immediately against him - putting a lot of pressure on him and his family. We saw that with Maurice Clarett - he immediately became vilified when he brought the lawsuit. Anybody who tries to challenge the system is deemed as a troublemaker. We've seen that in other contexts of the law.
With that analysis in mind, I found a story by Eli Saslow in today's Washington Post very interesting. Entitled, "Is There Such a Thing as a Perfect 10?," Saslow discusses 10-year old
Justin Jenifer, a 4-6 point guard from Maryland who is considered by some to be the best basketball player aged 10 and under. The article details how Justin is "pursued by Amateur Athletic Union summer league
teams that troll nationally for players, high school coaches who recruit aggressively and shoe companies whose scramble for potential future endorsers continues for a second decade." It also describes how Justin's life seems completely invested in basketball.
By implication, Saslow's article suggests that a higher age floor for the NBA will likely have no effect on the Hoop Dreams culture of youth basketball. There will still be the shoe companies jockeying for influence, the coaches and scouts from amateur leagues, high schools, and colleges trolling the sidelines, and the omnipresent parents obsessed with making their kids stars. And perhaps instead of 18-year old NBA players, maybe we should be more worried about things like this:
Across the gym, Scottie Bowden pulled down a flat-brimmed Washington Nationals hat until it almost shielded his eyes. A representative of Adidas, Bowden had invested many weekends and about $20,000 of company money in Justin and his teams. Bowden had provided the boy and his teammates with sneakers and travel money to tournaments in an effort to build brand loyalty in a 10-year-old with distant NBA prospects. In Justin, had Bowden accurately identified a star?
Posted By : Michael McCann
From Vikings on Boats to Timberwolves in Cars: More Minnesota Mischief
Message posted on : 2006-07-03 - 12:07:00
It turns out that the Minnesota Timberwolves' Eddie Griffin's March 30th car accident may not have been related to his "dropping his cell phone." A new civil suit filed in Ramsey County, Minnesota by the owner of the parked vehicle that Griffin struck claims that the former Seton Hall star was drunk and distracted by the pornographic video playing on a monitor on his dashboard, and more specifically, that Griffin admitted to those around him that he was masturbating while driving. The Complaint filed by Jamal and Lindsey Hassuneh is not only brought against Griffin, but the City of Minneapolis, the responding officers, and the Chief of Police.
After the accident, Griffin entered the nearby convenient store owned by the brother of Mr. Hassuneh. The store's security camera catches the rest. Multiple times on tape, Griffin admits that he is drunk and offers to buy the Hassuneh's any car, but "not a Bentley." He also pleads with the witnesses not to call 911 as he is "drunk." Upon arrival at the store, the responding officers do not give Griffin a field sobriety test, but instead, drive Griffin home (out of their jurisdiction) to St. Paul. The officers are caught on the store's camera stating "He is not going to get a DWI." The officers did issue Griffin minor violations for not producing his driver's license and inatentive driving.
The plaintiffs are not only seeking compensation for property damage, zone of danger damages, and punitive damages, but allege state and Federal violations against the officers, the Chief of Police, and the City of Minneapolis for violation of constitutional rights for failure to properly conduct an investigation into the incident and improper hiring and training of the responding officers. See accident report here.
Chief Dolan said that the Minneapolis Police Department is conducting its own investigation into the matter.
While the Timberwolves are not named as a party to the Suit, the Complaint addresses the fact that Kevin McHale (GM) was aware of Griffin's alcohol and drub abuse (Griffin spent time at Betty Ford in 2004), as well as his criminal background.
Posted By : Tim Epstein
Jesse Jackson to Organize Jockey Union?
Message posted on : 2006-07-03 - 12:01:00
The New York Times has an interesting story on the recruitment of the Reverend Jesse Jackson to organize the Jockeys Guild, possibly paving the way for collective bargaining in the horse racing industry. The Guild has been in financial disarray for several years. In 2004, as Greg reported here, the Guild was sued by a member after the Guild allowed its disability insurance policy to lapse. Jackson will be joined as "national co-manager" of the Guild by Dwight Manley, a former rare coin dealer and sports agent to the likes of the Mail Man and the Worm. According to the Times story:Jackson said that he had little knowledge of the horse racing industry, but he said that would not impede his efforts to improve working conditions and benefits for jockeys.
"I know the principles of organizing," said Jackson, who then referred to Martin Luther King Jr. "Dr. King didn't have to follow around garbage workers to know his role was to motivate garbage workers to stand up and fight for the right to organize."
* * *
"I have met with jockeys who have been injured, and it's like someone just threw them away," Jackson said. "They have no retirement package. No benefit package. What are they supposed to do?"
Jackson said the Jockeys' Guild should be viewed no differently than the Major League Baseball Players Association or other groups representing athletes that negotiate directly with owners or league representatives and have the right to strike.
"Jockeys should have the right of collective bargaining," Jackson said. "They should have retirement and health benefits and be entitled to revenue sharing. Terming them as independent contractors is just a scheme to deny them the rights of collective bargaining."
This will be an interesting organizing drive to watch. Since jockeys are currently viewed as independent contractors working for the owners of the horses, rather than the racing circuits or the race sponsors, they will likely need to convince horse owners to bargain as a multi-employer bargaining unit. However, my perception is that horse ownership (or at least, ownership of top competitors) is more fluid than, say, the ownership of professional sports teams. As a result, horse owners might have less upside or incentive to agree to bargain on a multi-employer basis.
Posted By : Geoffrey Rapp
Situation and NBA Draft Picks
Message posted on : 2006-07-02 - 12:32:00
Earlier this week, the NBA conducted its annual draft. Like with any draft, it's nearly impossible to tell how well a team drafted until several years after the draft. Certainly, almost all of the players selected seem promising right after they are drafted, even though few will become stars and many will be out of the NBA in three or four years. In some ways, this suggests the presence of optimism bias: fans are aware that a draft pick will probably not become a star, yet they believe that their team's draft pick is more likely to become a star (just like how the average smoker is aware of the general risks of smoking, yet believes that his own risk is lower than average, or how the average American believes that while the average American has a 40% of being the victim of a violent crime, he has only a 20% of being one--for more of this sort of analysis, please check out my article in the Brooklyn Law Review).
But what do some drafts succeed and others fail? As a Celtics fan, I look back at the drafting of Kedrick Brown and Joe Forte in the 2002 NBA Draft and view those picks as terrible choices. I also attribute Brown's failure to dispositional qualities, like an apparent unwillingness to improve his game and a failure to stay in shape. I'm only furthered annoyed by the fact that the Celtics could have drafted Richard Jefferson or Tony Parker, and that they picked Joe Forte.
But why did Kedrick Brown and Joe Forte fail? Was it all their fault, as I want to believe? Was it even mostly their fault? Did they not work hard enough? Were they not committeed, not dedicated? Or am I overlooking the situation in which they played?
Eric Weiss of DraftExpress recently posted an excellent article suggesting that NBA fans tend to miss the situation of draft picks. He discusses how the enviornment for an NBA player can have a dramatic effect on whether he succeeds or fails. He mentions Ryan Gomes of the Celtics. A 2nd round pick in 2005, Gomes sat at the end of the bench until a rash of injuries, coupled with a trade, forced him into the lineup. He excelled. What happens if Gomes never got that opportunity?
How much of player success is situation? How much is opportunity? How much is talent? How much is desire? Why do sports fans tend to focus on dispositional traits, rather than on situation or circumstance?
Posted By : Michael McCann
Major League Baseball and International Amateur Players
Message posted on : 2006-07-01 - 21:46:00
Enrique Rojas of ESPN Deportes has an informative piece on Major League Baseball's international signing period, which began on Sunday. As Rojas writes:
Since 1965, major-league teams have relied on the amateur draft to find players who they hope will become stars in the near future. But the richest and cheapest source of talent can be found in the international market, especially in Latin America, and not in North American schools.
That is why July 2, when teams are eligible to sign international players who will turn 17 years old before September, is such an important date. And this year's harvest of talent might be the best yet.
According to Rojas, the top 16-year old international players are catcher Jesus Montero of Venezuela, who is expected to command a signing bonus of $2 million, and outfielder Engel Beltre of the Dominican Republic, who the Red Sox signed for approximately $700,000.
You might ask: Why do foreign amateur players get to sign with whichever team they want, and negotiate with multiple teams, while American amateur players are forced to be drafted and only negotiate with one team? Does it make sense to treat our own worse than others? Or are they being treated better?
Back in 2002, MLB established a committee to consider an international draft. The idea was that as big league teams increasingly become populated by Latin American players, as well as those from Asian countries, there may be competitive balance concerns (i.e., the Yankees, Red Sox, Mets, and Dodgers would use their wealth to buy off most of the talent). No action resulted from the committee.
Vanessa Marie Zimmer in Dragging Their Devotion: The Role of International Law in Major League Baseball's Dominican Affairs, 4 Nw. U. J. Int'l Hum. Rts. 418
In addition to the signing of underage players, teams have been known to hide prospects as young as fourteen years old at remote Dominican training facilities to prevent the children from signing with another team or from finding an agent who would demand more money for him. Once the children are of legal age they are either signed by the team or simply cut loose. And although Major League Rules prohibit the signing of a player under the age of sixteen, there is no prohibition against academies hosting children between the ages of twelve and sixteen. Another option is for clubs to pay off-the-book commissions to local Dominican scouts who groom young players, then funnel them to Major League teams upon reaching signing age.
Zimmer essentially argues that MLB has no
interest in addressing what's happening in the Dominican Republic:
The League has thus far demonstrated a lukewarm, at best, passion for addressing wrongs committed by teams in pursuit of Dominican players, issuing fines and temporary shut-downs of Dominican operations that, while punitive, are not remedial . . . This is in accord with the League's current modus operandi of acknowledging the fuzzy notion of a "problem" without bogging themselves down in details or specific solutions. Sandy Alderson, Executive Vice President for Baseball Operations for the Commissioner's Office offers a vague attempt at appeasement, saying "I think there are significant problems that exist that we're now addressing."
sfsd
Posted By : Michael McCann
Leon Powe
Message posted on : 2006-06-29 - 21:39:00
Back in 2004, the top three rated high school basketball players were Lebron James, Kendrick Perkins, and Leon Powe. James and Perkins, of course, would declare for the 2004 NBA Draft, and James would be the first overall selection, while Perkins would go 27th--and both secured guaranteed first round contracts. Since that time, James has become one of the two or three best NBA players, while Perkins is the starting center of the Boston Celtics and is considered the team's best rebounder.
Leon Powe opted not to declare for the draft, instead
Posted By : Michael McCann
Larry Brown is Grieving
Message posted on : 2006-06-29 - 16:04:00
Larry Brown has decided to file a grievance concerning whether he is owed any money by the Knicks in connection with his termination. It was not a surprise when the Knicks concocted an excuse to avoid paying Brown. As I pointed out here, MSG is (owned by) a publicly traded company and may have feared a lawsuit by shareholders if it paid Brown the full value of his contract.
Brown claims he is owed $40 million, what he would have been paid under the contract. The Knicks claim he violated a term of the contract and thus is owed nothing. According to the Knicks, Brown gave “roadside interviews� that contradicted a contract provision. Knicks chairman James Dolan says Brown was fired “for cause.� According to a good summary of the events by the San Jose Mercury News, Dolan is trying to get out of paying Brown the $40 million the Hall of Fame coach is owed, saying that Brown conducted roadside interviews without a public-relations official present. The Knicks also claim that Brown failed to return phone calls to team president Isiah Thomas and that he returned from the NBA predraft camp in Orlando one day early without authorization.
Good luck to the Knicks, who will need it. One league official characterized Brown's supposed breaches as “minor�. Trivial is a better word. Let's assume that the contract doesn't say, “if Larry Brown gives a roadside interview the Knicks have no further obligation to pay� (if the contract does say that, Brown should sue whoever negotiated it for him). According to the Restatement of Agency, §409, A principal is privileged to discharge before the time fixed by the contract of employment an agent who has committed such a violation of duty that his conduct constitutes a material breach of contract or who, without committing a violation of duty, fails to perform . . . a material part of the promised service . . . .
The Restatement of Contracts, §275, defines materiality: In determining the materiality of a failure fully to perform a promise the following circumstances are influential:
(a) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated;
(b) The extent to which the injured party may be adequately compensated in damages for lack of complete performance;
(c) The extent to which the party failing to perform has already partly performed or made preparations for performance;
(d) The greater or less hardship on the party failing to perform in terminating the contract;
(e) The wilful, negligent or innocent behavior of the party failing to perform;
(f) The greater or less uncertainty that the party failing to perform will perform the remainder of the contract.
Applying this law to Brown's contract, the Knicks' claimed “cause� hardly seems sufficient to relieve the team of an obligation to pay the coach his due. The Knicks may also be done in by timing, since it's widely believed that the decision to fire Brown (and replace him with Thomas) was made long before Brown's supposed breaches.
Like most of these disputes, however, a settlement is likely. The real question is, how much will Brown get? At sportbook.com, future traders expect Brown to end up with something, most likely between $10 and $20 million. “Betting is that he will get something, although considerably less, perhaps somewhere between $10 million to $19.9 million (2-1), or $30 million to $34.9 million (3-1), or $20 million to $29.9 million (5-2). At either end, the betting is 7-2 that Brown will collect either under $10 million or closer to what he might be owed, $35 million to $40 million.� The $20-$29.9 million bet would be my choice, although I wouldn't put money on it.
Another quirky feature of Brown's contract is that it specified that in any financial dispute with the Knicks, NBA Commissioner David Stern would arbitrate. Is anyone familiar with any other sports employment contract in which the league commissioner was named as the arbitrator of an individual contract dispute? This strikes me as odd. I'd also be concerned about a potential conflict of interest (since Stern works for the owners), although Brown has agreed to have the Commissioner arbitrate the dispute.
Brown will be represented at the arbitration by Washington DC's Williams and Connolly, which has built a very impressive sports law practice over the last decade.
UPDATE (July 3, 2006): Yale Law School Professors Ian Ayres and John Donahue have a nice Essay in Sunday's New York Times on the parralels and distinctions between the Brown case and that of former Disney executive Michael Ovitz; I discussed that comparison back on May 16. Here's a juicy bit from the Ayres/Donahue piece: The Cablevision Systems Corporation, which owns the Knicks, is certainly within its rights to terminate a coach or any other employee for cause if he or she has, in fact, materially violated contractual obligations. But the Knicks have been pursuing bad trades for years before Mr. Brown arrived. It seems a bit harsh to hold some of the latest failures as evidence of misconduct by Mr. Brown rather than simple misjudgments.
Mere incompetence generally does not amount to a material breach of an employment contract . . . .
Posted By : Geoffrey Rapp
Indiana Court Declines to Extend Co-Participant Sports Tort Standard to Jet-Skiing
Message posted on : 2006-06-28 - 15:21:00
An Indiana Appellate court declined Monday to extend the relaxed tort law standard for co-participants in organized sports, under which co-participants cannot be liable for mere negligence but only for reckless misconduct or intentional wrongdoing, to the activity of jet-skiing. In Davis v. Lecuyer, 2006 WL 1726636, the court distinguished jet-skiing from triathlon competitions, as to which had earlier applied the relaxed recklessness standard in Mark v. Moser. The Davis court explained: Applying a recklessness standard to any use of a jet ski in order to encourage vigorous participation is neither a legitimate nor necessary policy goal. Moreover, the nature of jet skiing does not present the same potential for a flood of litigation as do certain contact sports. Jet skiing simply does not raise the concern expressed in Mark that if "simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted."
This holding is contrary to that reached by several California courts, which have held that water skiing, tubing, and jet skiing constituted sports as to which "primary assumption of risk" barred actions for mere negligence. See, e.g., Ford v. Gouin, 11 Cal.Rptr.2d 30 (Cal. 1992). In that case (which served as the basis for one of my Sports Law exam hypos this spring), California's Supreme Court reasoned that [i]mposition of legal liability on a ski boat driver for ordinary negligence . . . likely would have the same kind of undesirable chilling effect on the driver's conduct that the courts in other cases feared would inhibit ordinary conduct in various sports.
Should courts be worried about chilling vigorous jet skiing?
Posted By : Geoffrey Rapp
Big Logos at the Big W
Message posted on : 2006-06-28 - 12:39:00
Wimbledon began Monday in typical fashion: with rain delays and warnings that players must adhere to strict dress codes. Strict dress codes will probably disappoint you Maria Sharapova fans. For his part, World No. 1 Roger Federer has been taking the court in a Nike-designed cream blazer.
Underneath it all, Nike and Adidas are waging a legal battle over permissible logos. Tennis' governing bodies restrict the size of company logos on players' clothing. (See p. 209 0f the ATP Code of Conduct.) The idea is to prevent the NASCAR-ization of professional tennis players.
Nike and others have argued that Adidas clothing violates the rules because its three-stripes logo appears along an entire sleeve or side of a shirt. They claim that in turn, they should be permitted to place Swooshes on an entire back or sleeve of a shirt (a strategy it briefly employed through its endorsee Rafael Nadal a few years back.)
This battle began in 2004 when Nike, Reebok and Puma complained to the IOC that the athletes' warm-ups, by containing the three-stripes in the design, unfairly contained a manufacturer's logo beyond the permissible size under IOC rules. The IOC informed Adidas that its three stripes would be limited in the next Winter Games. The battle then shifted to tennis. As a result of discussions between the manufacturers and tennis' governing bodies, the Grand Slam Council (which controls the Australian Open, Roland Garros, Wimbledon and the US Open) informed Adidas that its three stripes would constitute a manufacturer logo subject to limited size. The ATP Tour (men's tennis) and WTA Tour (women's tennis) adopted similar positions. Adidas countered that the interpretation violated EC law because itdiscriminatedd against them and had been unfairly applied. The case is set to be tried in October, 2006.
Adidas recently obtained its own injunction relieving it from the restrictions during Wimbledon and the US Open. The litigation will be interesting to follow. Insiders comment that Nike has long envied Adidas' logo for its corporate reference and its design effect. Readers of Swoosh: The Unauthorized Story of Nike and the Men Who Played There and Just Do It: The Nike Spirit in the Corporate World (both recommended!) will recall that the early Nike execs chose the Swoosh for its connotation of speed, but envied the fact that Adidas' logo also was part of the design of the shoe -- the three stripes provided support and identified the company.
In time, it has clearly become a logo, despite the fact that it originated in design. It will be interesting to see what arguments Adidas makes in support of the design necessity of three stripes as they apply to shorts and shirts. One they seem to already be making is that other manufacturers, including Nike have used design elements repeatedly in their clothing that provides secondary meaning for their company.
Although tennis has more important issues to address as a sport, time, money and effort will be spent in the next year as this issue is litigated. The outcome should be interesting.
Posted By : Chris Callanan
Players Sue NFLPA Over Failed Hedge Fund Investment
Message posted on : 2006-06-28 - 08:55:00
A group of NFL players has sued the players' union, claiming the union improperly certified a hedge fund manager under its Financial Advisor Program. The LA Times has the story here. Kirk Wright, who has since been apprehended and charged by the SEC, was looting the fund.
The players' allege that the union should be blamed because it was aware that Mr. Wright's partner had financial / tax trouble (and had liens against him) at the time the union certified Wright as a financial advisor. I can't find the complaint itself, but what this argument seems to boil down to is a sort of “negligent certification� claim. The NFL views the lawsuit as unfounded and so do I. Unless there is some way to get the NFLPA on a securities law suitability claim or that the NFLPA is an unregistered investment advisor, the players will face an uphill battle.
The leading negligence case by an athlete against his own union is Peterson v. NFLPA, in which the court found for the NFLPA in an athlete's claim for misdirecting him to an “injury grievance� procedure when he ought to have filed a “non-injury grievance.� The court explained:A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith." . . . The Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members' best interests. . . . A union's representation of its members "need not be error free." . . . We have concluded repeatedly that mere negligent conduct on the part of a union does not constitute a breach of the union's duty of fair representation. . . . [A] union's unintentional mistake is "arbitrary" if it reflects a "reckless disregard" for the rights of the individual employee, but not if it represents only " simple negligence violating the tort standard of due care."
There's certainly no claim that the NFLPA intentionally recommended a bad investment. Is recommending an investment manager knowing his partner has financial troubles reckless? That is, does it constitute a knowing and conscious disregard of a substantial risk of serious harm? That seems unlikely. The union's role in certifying investment advisers is limited. The union is not recommending particular investments, simply certifying that an adviser is what he says he is. According to the Regulations of the NFLPA Financial Advisor program, The first step is that financial advisors have appropriate qualifications to be eligible to participate. Background checks and due diligence will be performed to ensure that financial advisers meet our eligibility standards. Secondly, by joining the Program, all financial advisors agree to abide by rules which are designed to both protect and inform our players.
While I might tone down some of this language were I the NFLPA's counsel, it seems clear that the union is not certifying the quality of investments or assuming the risk of theft of client funds by investment advisors. Under the deferential Peterson standard, while the union's certification of Wright might be “error,� it is hardly malicious or arbitrary.
The sad thing about this case is what it might do to this program. The NFLPA was the first union to recognize that many players and retired players were making incredibly poor investment decisions and dooming themselves to a life of post-retirement financial insecurity. If this case has any traction whatsoever, it might lead the NFLPA to walk away from the program, and could certainly deter other player unions from following the NFLPA's lead.
Posted By : Geoffrey Rapp
Peter Gammons Suffers Brain Aneurysm
Message posted on : 2006-06-27 - 21:19:00
Here's hoping to a speedy recovery for ESPN's Peter Gammons, arguably baseball's premier journalist, as he is undergoing emergency surgery in a Boston-area hospital for a brain aneurysm. Gammons has written many stories that touch on the law, although his introduction speech into the Baseball Hall of Fame in 2004 may be his greatest work. Here's an excerpt:
I walked the streets of Manoguyabo, Dominican Republic, with Pedro Martinez and viewed the churches, school, athletic complex, day-care center and houses that he built for poor people in his hometown. I was not far from Fidel Castro when he stood for the American National Anthem at attention, his hat across his heart because baseball came to Havana in 1989. I remember George Bush strode out toward the mound at Yankee Stadium before the third game of the 2001 World Series, weeks removed from the World Trade Center attacks, and turned and said to Karl Ravech and Harold Reynolds, 'We are among the 55,000 people who just experienced one of the great chills of anyone's lifetime.' When Bud Selig asked us to embrace the World Cup, it's not T-shirts in Taiwan. It's about celebrating that baseball, more than any sport, is who we are. It is reflected in our immigration patterns, our history because we're all immigrants. We should want the world to see us not for our politics, not for our business, but for baseball as our metamorphic soul, inclusive, not exclusive, diverse, not divisive, fraternal, not fractionalized.
Gammons may very well be the best sports journalist in my lifetime. Whether you agree or disagree with him, he's always interesting, and that alone separates him from everyone else. I'm looking forward to reading more of his work. Get well.
Posted By : Michael McCann
The Role of Race and Culture in how Fans Regard the NBA Draft Age Limit and Dress Code
Message posted on : 2006-06-27 - 12:12:00
Rick Maese, a columnist for the Baltimore Sun, has an extensive piece today on the NBA Draft (which will be held tomorrow) and how the new elevated age floor may reflect dimminishing player autonomy and underlying issues of race and culture ("NBA Draft Doesn't Get Any Better with Age," Baltimore Sun, June 27, 2006). Maese interviews me for his column, and cites my law article,
The dress code was silly, but this age-restriction rule is more absurd. "Just compare it to other sports," says Michael McCann, a law professor at Mississippi College School of Law. "It begs the question, why do we have this in certain sports but not all of them? Why not for golf, tennis, baseball, hockey, any of these sports?"
League officials believe the new rule will improve the quality of play, but excluding 18-year-olds is just another example of the NBA exerting control over its players. But there's no justifiable reason for an age restriction. I happen to like the idea of an 18-year-old choosing to play college ball, but I recognize that it's not always in the best interest of the player. And I also realize that it shouldn't be solely Stern's decision to make.
McCann is vested in the topic. He was a part of Maurice Clarett's legal team when the football player unsuccessfully tried to challenge the NFL's age-restriction rule two years ago.
"Generally speaking, people ... go to college, we mature and we look back at it all as a good life experience," he says. "There's this empirical view that people who go to college do better in life. But we can't mistake the experiences of athletes with the experience that the rest of us have. It's a radically different world. There's a disconnect that we must recognize.
"You also wonder if there's a race issue," he continued. "This all goes to an underlying stereotype of what we think about urban African-American men. There may be a preconceived stereotype that they need to be in school. The facts, though, at least for basketball players, actually suggest the opposite. School isn't necessarily the best answer for everybody."
Before we get to that, you must first accept that this is, in fact, a black-white issue, as uncomfortable as that may seem. Of the 46 prep players who've been drafted since 1995, only one was white. So it's not hard to make a case that the age-restriction rule specifically targets 18-year-old black men. The NBA sold the public on the rule based on the idea that these young athletes would be better served by at least one year of college seasoning - a preposterous notion from the beginning.
McCann studied American players over the past 15 years. He
found that 41 percent of NBA players attended college for four years; the percentage of NBA players who attended college for four years and were later also arrested for some sort of misconduct was much higher - 57 percent.
Among those who skipped college, the number of arrests was disproportionately low - 8 percent of the players in the study did not attend college, but only 5 percent of those arrested skipped school.
So who exactly is more mature and equipped to handle the real world?
And who exactly is served by these age restrictions? Not the pro teams. Not the college teams. And certainly not the players. The only guess I can muster is the fan, the guy who can afford tickets and expensive merchandise, yet has trouble identifying with a culture, an athlete and a lifestyle to which he can't relate.
During the interview, I made one other point and it concerned David Stern. I noted that Stern is doing what any good commissioner is supposed to be doing: he's trying to maximize revenue for the league by appealing to fans' wants. So when we talk about the NBA pushing for a dress code and age limits, we're most likely talking about the league responding to what it perceives as in its best financial interests--a form of business behavior which, in and of itself, presents nothing nefarious.
But that behavior only begs a question: Why do fans want a dress code and why do they want age limits? What do those fan desires say about them, about us? And at what point do stop deferring to "business reasons" and start asking the harder, underlying questions?
Update: Dick Vitale--previously the most ardent critic of high schoolers jumping straight to the NBA--has done a 180 and now believes that high schoolers should be able to enter the NBA. Wow, I'm almost speechless, although in fairness, he did have some reservations about the blanket, absolute age prohibition back in April 2005.
Posted By : Michael McCann
DC Power Lawyer Golf Handicaps
Message posted on : 2006-06-27 - 10:20:00
Wonkette links yesterday to Golf Digest's October 2005 ranking (by handicap) of the top 200 politico-golfers in Washington, DC, a number of whom happen to be lawyers. Among the more notable (I've left out elected officials, many of whom have law degrees but are unlikely to ever practice again):7. Fred Eames, Partner, Hunton & Williams (2.0)
17. Spencer Prior, U.S. Attorney's Office (4.0)
51. Tim Jenkins, Attorney, O'Connor & Hannan (9.2)
94. Sandra Day O'Connor, Ret. Supreme Court Justice (12.8)
98. Larry Gage, Partner, Powell Goldstein (13.1)
103. Robert Mueller, FBI Director (13.9)
104. John Roberts, Supreme Court Justice (14.5)
122. Mike Hammer, Partner, Wilkie Farr (15.4)
126. Alberto Gonzales, Attorney General (16)
172. John Quinn, Partner, Piper Rudnick (22.3)
188. John Paul Stevens, Supreme Court Justice (25.2)
Although I think there's little doubt that being decent can be good for one's legal career, I wonder whether a client should really be excited to hire a good golfer as a lawyer. Maybe this is just the jealously of a duffer talking (my uncle once joked that he would file an environmental impact assessment the next time we went golfing together), but isn't a low handicap a sign that one spends a lot of time on the links? And, therefore, not as much time doing legal work? I suppose that one might extrapolate from a good golf game to grace under pressure, which is certainly a good quality for a litigator or a dealmaker.
Former NCAA Golf Champion Fred Ridley told the WSJ's Law Blog, “The law profession is not a really great profession for being a great athlete. If you're going to be a good lawyer, you've got to dedicate a lot of time to the profession.� If you want to be a good golfer, “you need to be in the insurance business or something.�
Posted By : Geoffrey Rapp
School Recess is Becoming a Thing of the Past
Message posted on : 2006-06-27 - 09:00:00
I read an article in USA Today this morning that has me all fired up: 'Not it!' More schools ban games at recess. Elementary schools across the country are banning games during recess, such as tag, soccer and touch football, because educators say these games are dangerous. The principal at one such school said tag was banned because it "progresses easily into slapping and hitting and pushing instead of just touching." My son just completed third grade, and his school has one recess session for only 15 minutes and permits tag, soccer and kickball on the playground. However, his teacher -- who by the way is an excellent teacher and one of his all-time favorites -- banned his class from playing touch football when one child was hit in the head with the football (and the child did not suffer any injury).
Banning games at recess is a disturbing trend. I can remember having much more recess time when I was in school, and we played both tackle and touch football. In addition to the benefits of physical development and exercise, we learned many valuable things that simply can't be taught in the classroom -- including how to compete; how to compromise and resolve disputes on your own; how to form your own rules and play within them; and how to deal with adversity.
According to the article, educators worry about kids running into one another and getting hurt. Granted, this is a valid concern when educators are supervising the children while away from home and are responsible for ensuring their safety. But using a typical risk-utility analysis, the risk and extent of possible injury on the playground is simply outweighed by the high utility, benefit and value associated with children playing games at recess. While banning tackle football might be justifiable, banning touch football, tag and soccer is simply not.
So I write this with the purpose of making parents aware of this trend, and you can make your own determination as to its level of importance. If nobody complains, schools will most likely continue to ban more activity at recess, and will most likely ultimately ban recess altogether. While most parents will be requesting that their child have a laptop, I'll be requesting that recess time be extended and the games permitted.
Posted By : Rick Karcher
WSOP Begins Today
Message posted on : 2006-06-26 - 10:35:00
The World Series of Poker begins today. Most ESPN watchers have seen only the “Main Event�, which does not begin until July 28. Someone in Bristol must read the Sports Law Blog, because three weeks after I complained about the delay between the event and its appearance on ESPN, the network announced that it would offer the August 10 final table of the main event live on pay-per-view. This is an interesting development, since the pay-per-view broadcast will be unedited. Some observers have expressed concern that a live unedited broadcast – particularly if players' “hole cards� are shown on TV – might allow players to obtain information about the recent moves made by their opponents (by having a friend at home call in that information).
The success of broadcast poker – on ESPN and numerous other channels – has inspired the network to consider other “pseudo� sports. Darts, billiards, and even spelling bees, have appeared or will appear on the network, although such events likely don't and won't attract much of a following or generate as much buzz as poker.
ESPN is not the only “sports� medium in which non-athletic events have gained traction. A few years ago, supporters and fans of another high-strategy card game, Bridge, began to seek recognition of that game as an Olympic Sport. The supporters believed they'd have better luck getting the card game recognized as a Winter event, given the already-crowded summer schedule. In 1998, the Bridge-as-Olympic-Mind-Sport movement gained an influential supporter, the President of the International Olympic Commission, as the New York Times reported here. However, efforts to get Bridge at the Turin Olympics stalled after several players failed drug tests.
During the Athens Olympics, a tongue-in-cheek web site surfaced, arguing that poker should qualify as an Olympic event. It turned out that the site was part of a cleverly disguised ad campaign for Full Tilt Poker, designed to evade restrictions on broadcast advertisements for gambling sites.
But would a more serious poker-in-the-Olympics movement succeed? Ignore for the moment the question of whether poker is a “sport.� The Olympics aren't just about “sports,� in the classic ball-on-grass sense. Competitions with greater mental than physical components are now recognized as legitimate Olympic events (one web site explains, “Some examples of mental sports include: archery, canoe/kayak, equestrian, fencing, sailing, shooting, and table tennis�). If Bridge has a case for inclusion, why not poker? Of course, Poker is perhaps a game with less of an international following than bridge (or at least, the Texas Hold ‘Em form dominant in this country in the post-Moneymaker era).
For
regular (spoiler warning) coverage of the WSOP tourney, I'd suggest the Poker Prof's Blog.
Posted By : Geoffrey Rapp
New Sports Law Scholarship this Week
Message posted on : 2006-06-26 - 09:56:00
New this week is the New England Law Review's publication of its symposium, “From Grand Slams to Grand Juries: Performance-Enhancing Drug Use in Sports,� which was held in November, 2005. Some big wigs from sports law academia (e.g., Professors Mitten, Haagen, Weiler, Kurlantzick) and some folks with more practical backgrounds (e.g., Reggie Bush's lawyer Wm. David Cornwell), are among the authors:
Gordon A. Martin, Jr, How it all began: the move to drug testing, 40 NEW ENGLAND LAW REVIEW 705 (2005-2006).
Will Carroll, The real story of baseball's drug problems, 40 NEW ENGLAND LAW REVIEW 711 (2005-2006).
Denise A Garibaldi, The challenge and the tragedy, 40 NEW ENGLAND LAW REVIEW 717 (2005-2006).
Chip Dempsey, Steroids: The media effect and high school athletes, 40 NEW ENGLAND LAW REVIEW 731 (2005-2006).
Tracy W. Olrich and Mario J. Vassallo, Running head: psychological dependency to anabolic-androgenic steroids; exploring the role of social mediation, 40 NEW ENGLAND LAW REVIEW 735 2005-2006).
Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by “non-analytical� cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006).
Rick Collins, Changing the game: the congressional response to sports doping via the Anabolic Steroid Control Act, 40 NEW ENGLAND LAW REVIEW 753 (2005-2006).
Brian R. Cook, Dealing with the devil: “a commentary,� 40 NEW ENGLAND LAW REVIEW 765 (2005-2006).
Wm. David Cornwell Sr., The imperial Commissioner Mountain Landis and his progeny: the evolving power of commissioners over players, 40 NEW ENGLAND LAW REVIEW 769 (2005-2006).
Lisa Pike Masteralexis, Drug Testing Provisions, an examination of disparities in rules and collective bargaining agreement provisions, 40 NEW ENGLAND LAW REVIEW 775 (2005-2006).
Lewis Kurlantzick, Is there a steroids problem? The problematic character of the case for regulation, 40 NEW ENGLAND LAW REVIEW 789 (2005-2006).
Matthew J. Mitten, Drug testing of athletes—an internal, not external matter, 40 NEW ENGLAND LAW REVIEW 797 (2005-2006).
Paul Weiler, Renovating our recreational crimes, 40 NEW ENGLAND LAW REVIEW 809 (2005-2006).
Paul H. Haagen. The players have lost that argument: doping, drug testing, and collective bargaining, 40 NEW ENGLAND LAW REVIEW 831 (2005-2006).
Posted By : Geoffrey Rapp
MLB Seeking Licensing Fees from Slingbox Maker
Message posted on : 2006-06-25 - 07:15:00
Eric Fisher of Street & Smith's Sports Business Journal (subscription only) reported last week that MLB Advanced Media is seeking licensing fees from Sling Media Inc., manufacturer of the popular Slingbox device (pictured to the right), for the distribution of televised baseball games. The Slingbox, which can be purchased by consumers for $200, is a device that geographically relocates the consumer's television signals to their laptops with no additional fee and essentially gives viewers the ability to watch their local stations no matter where they go. MLB claims that Sling Media is violating cable and satellite user agreements, pacts that MLB interprets for its content as tied to specific geographic regions. MLB currently sells various packages through DirecTV, Dish Network or In Demand on cable, providing access to about 60 games per week, as well as subscriptions pursuant to which every game is accessible over a computer, including a new product called Mosaic that allows viewing six games simultaneously.
Sling Media is not open to the idea of paying any fees to MLB. According to Sling Media chief executive Blake Krikorian:
“Maybe they should be paying us. Seriously. I'm still failing to see how we're hurting them or their brand. We're allowing more people to see more baseball, with all the same commercials, and stay connected to their teams. How is that bad? It's additive to what they're doing. We don't need to be charging people a monthly fee. They've paid for our device and they've paid their cable bill.�
This case is an interesting example of the complex interplay between copyright law and new technologies. To MLB's credit, MLB does own the rights in the live events and has the legal right to control which cable and satellite networks will broadcast the live games. When the network broadcasts the games, using multiple cameras placed in various locations on the field using different camera angles, the network obtains a copyright in the broadcasted event and has the right to control the distribution and redistribution of the broadcast. So, arguably, the Slingbox device is capturing the live broadcasted events for free without the permission of MLB or the networks and then simultaneously distributing the live events to consumers on their laptops with no lag time. MLB can argue that Sling Media is "freeriding" off of the investments made by MLB and the networks to produce and broadcast the live events, especially now that MLB is actually selling subscriptions to access the live games over the computer.
On the other hand, Sling Media can argue that it invested in and produced the Slingbox and all of the technology associated with it. In other words, it could be argued that the Slingbox is just another piece of hardware or equipment that is sold to consumers and merely enables MLB's games to be viewed, similar to a television set. Certainly, nobody would claim that Sony is violating any copyrights when broadcasted games are viewed on its televisions and monitors or when music is played on its CD players. Also, the Slingbox device is not permitting viewers to access the broadcasts without paying the networks -- the consumer still pays the cable bill and would only have access to the games broadcasted through that cable network for which the consumer has already paid.
So which is it? Should Sling Media be viewed as stealing the broadcasted events from MLB and the cable and satellite networks, and unlawfully distributing the content to viewers without their permission. Or should Sling Media merely be viewed as a pioneer of just another
emerging technological device that enables the content to be viewed? It's actually a combination of both, and it will be interesting to see how this gets resolved....
Posted By : Rick Karcher
Gary Glitter Proof? The Law and Morality of NFL Game Day Music
Message posted on : 2006-06-23 - 00:02:00
The National Football League has asked its teams to refrain from playing Gary Glitter's popular anthem "Rock and Roll Part 2" (aka, the "Hey" song) on game day. In case you don't know what song I'm talking about, you can listen to it here. You will surely recognize it; it has to be one of the most regularly played songs during sporting events.
So why has Glitter's song moved onto the NFL's Do Not Play List? It's because he will be spending the next three years in a Vietnamese prison for molesting two young girls, and the NFL doesn't want its games to be associated with a convicted child molester. The league also doesn't want Glitter to earn royalties from the playing of his song.
But let's play Devil's Advocate for a moment, and pretend that we are Gary Glitter fans who regularly attend NFL games, and who find his music to be an essential component of the game experience. What might we argue to keep his song playing? Here are five arguments:
1) Being guilty in Vietnam isn't the same thing as being guilty in the United States.
In fact, Vietnamese courts employ a lower standard of proof for criminal convictions, and feature fewer procedural protections for criminal defendants. So perhaps Glitter might be a free man had those same charges been brought in the United States.
2) Glitter has long been suspected of being a child molestor.
I know what you are thinking: How is that a positive for Glitter? It isn't, but it invites the question of why the NFL would want to ban his song now. It isn't like Glitter's "problems" have been a secret. In fact, back in 1999, a British court convicted him of possession of child pornography, for which he served two months in jail, and he was classified as a sex offender. Maybe more revealing, the Cambodian Government--which somehow tolerates the genocidal Khmer Rouge--couldn't tolerate Glitter. It expelled him in 2002 for alleged sexual misconduct with children, an act which prompted his move to Vietnam. So why should a conviction of this guy in a Vietnamese court suddently make all the difference to the NFL?
3) What About Marv (Albert)?
Marv Albert is the lead play-by-play voice of Westwood One's NFL coverage, calls Monday Night Football games and has called every Super Bowl since 2002. This is true even though, in 1997, he pled guilty to misdemeanor sexual assault charges (after being charged with felony charges of forcible sodomy). Granted, his sexual crime was inflicted upon an adult, but Albert's role with the NFL is clearly larger than Glitter's, and Albert himself is far better known than Glitter. In fact, I had no idea who Glitter was before this story broke, and I never knew or bothered to learn who sung that song. It didn't matter.
4) Axl Rose and Ozzy Osbourne say Hey!
NFL teams routinely play songs by artists who have been in legal trouble. For instance, the song "Welcome to the Jungle" by Guns N' Roses is often played during NFL games. It is sung by Axl Rose, who was once arrested for assaulting a neighbor with a bottle of wine and is widely suspected of using illegal drugs. Or take Ozzy Ozbourne songs, or R. Kelly songs--they too are played during games and are sung by artists who have encountered legal troubles (and Kelly was recently arrested for statutory rape). If we ban Gary Glitter songs, then shouldn't we ban those songs, too? In fact, to be consistent, perhaps only songs sung by "decent" artists, like John Tesh or Kenny G or Amy Grant, should be played (and yes, I too would stop going to NFL games if that happened, but you see the point).
5) Does playing a song during an NFL game even celebrate the artist?
As mentioned above, I had no idea who sung "Rock and Roll Part 2," and didn't even know who Gary Glitter was. Maybe I'm in the minority on those fronts. But regardless, playing a song during a game seems more about celebrating the team or players who made great plays, and getting the crowd into the game, than about the artist who happened to have sung the song.
Taking off my Devil's Advocate cap, however, I actually don't have a problem with the NFL's request. The league doesn't want a convicted child molestor to receive royalties from the playing of songs during NFL games. Also, the league is not forcing teams to do anything; it is simply making a request. But I do see potential inconsistencies that might aggravate the Gary Glitter Fan Club, whose website, as Anonymous notes in the comments section, apparently may infect your computer with spyware if you are using Internet Explorer. So be warned before visting the Worlwide Glorius Glam & Glittering website or get the proper protection (i.e. download Mozilla Firefox) and then visit.
Posted By : Michael McCann
Knicks Fire Larry Brown
Message posted on : 2006-06-22 - 22:28:00
The New York Knicks fired Larry Brown earlier today as head coach. Brown earned $10 million coaching the Knicks this past season, and is contractually entitled to be paid $40 million over the remainder the contract. The Knicks contend, however, that they owe Brown nothing, since he allegedly violated a clause in his contract:
[T]he Knicks believe they owe Brown nothing because he failed to adhere to club policy and attempted to negotiate trades without consulting Thomas.
Do the Knicks take us for fools? Hasn't it been known, for months, that Brown has helped to engineer trades? Why didn't the Knicks fire him
Wouldn't a better argument for cause simply be "not doing a good job coaching"? The Knicks finished 23-59 this year. Many observers also felt that the team played indifferently.
Posted By : Michael McCann
Eugene Volokh on Tony Twist Case
Message posted on : 2006-06-22 - 14:36:00
It must be the week for bloggers to post about the legal issues relating to athletes' and former athletes' names. Michael's last post on Dale Jr. and my post on Gnarls are joined by UCLA Law Professor and conspiracist Eugene Volokh, who discusses hockey player Tony Twist's case against the creator of the comic book Spawn. Greg had a post about the U.S. Supreme Court's denial of cert in that case back in 2004. Professor Volokh wrote a brief in the case, in which Twist won a $15 million verdict that was upheld by the state appeals court.
Posted By : Geoffrey Rapp
Dale Earnhardt, Jr.: Suffix, Sports, and the Law
Message posted on : 2006-06-22 - 12:02:00
ESPN's Darren Rovell has a very interesting piece on Dale Earnhardt, Jr., who hasn't owned his name, or the rights to his own signature, for the past three years. Instead, his stepmother Teresa controls those rights. This peculiar outcome results from assorted agreements, including mere handshakes, between the late Dale Sr. and Dale Jr., as well as between Dale Earnhardt Incorporated (DEI, which represents Dale Sr.'s business interests) and JR Motorsports (Dale Jr.'s company for off-the-course business). It also results from Dale Sr. originally filing the trademark for Dale Jr.'s name, an act which Dale Jr. later consented to (and perhaps unknowingly). And when Dale Sr. died in 2001, the rights to Dale Jr.'s name were transferred to his Dale Sr.'s estate, the executor of which is Dale Jr.'s stepmom, Teresa.
But now Dale Jr. wants his name back, because he is apparently not getting a full cut on every product that bears his name. Doing so may be difficult, however: Teresa wants to keep Dale Jr.'s name because it raises the value of Dale Sr.'s estate, and legally she may have the upper-hand. According to J. Scott Evans, a Charlotte attorney who has registered trademarks for a number of drivers, "it's hard to revoke your consent once you've given it. If Dale Jr. has a problem with it now, that's between him and DEI."
Interestingly, this isn't the first time that a NASCAR driver has encountered a trademark issue with his name. Take Geoff Bodine's name plight:
Geoff Bodine, the NASCAR driver who had 570 starts from 1979 to 2004, says he didn't own his own name for a long time. In the '80s, according to Bodine, a man successfully trademarked his name without his consent, then tried to blackmail him. It's one of the reasons Bodine sometimes was referred to as Geoffrey.
There is a lot more to the story, including a discussion on how so many NASCAR drivers trademark their names. It is definitely worth checking out, as is Geoff's recent post on Charles Barkley's name trademark issues.
Update: Dale Jr. has reached an agreement with stepmom Teresa that gives him his name back. As my former civil procedure professor John Harrison would often say, you never like to see cases where the plaintiff and defendant share the same last name. It looks like we'll be avoiding that here.
Posted By : Michael McCann
Notre Dame Receiver Signs "Fat" Contract with Cubs
Message posted on : 2006-06-21 - 18:30:00
Those of you who follow college football and/or may have watched Notre Dame at all last season may recall the tall, lanky and athletic receiver with a unique last name and long hair protruding from the back of his helmet. Baseball America's John Manuel reported this week that Jeff Samardzija, a fifth-round pick two weeks ago by the Chicago Cubs, agreed in principle with the Cubs on a contract that will allow the righthanded pitcher to continue his all-America football career at Notre Dame this fall while pursuing a career in professional baseball ("Cubs agree to deal with Notre Dame two-way star"). It is reported that Samardzija would receive a $7.25 million bonus if he makes baseball his primary sport, and the deal is backloaded with Samardzija receiving less than $1 million in the first year of the deal.
MLB rules permit teams to spread out payment of the signing bonus over 5 years with respect to two-sport athletes (otherwise, the bonus must be paid in full by the end of the calendar year of the year following the year in which the player was drafted -- i.e. within 1.5 years).
The contract allows Samardzija to keep his options open in football, as he is also projected to be a high NFL draft pick next year. But if and when he decides to focus exclusively on baseball, he is guaranteed $7.25 million -- which would be the largest signing bonus ever given to an amateur player. Thus far, the highest signing bonus ever for a player that signed with the club that drafted him is $6.1 million paid by the Diamondbacks to the 2005 No. 1 overall pick Justin Upton. According to Manuel, the inconsistent quality of his breaking ball and football commitment was one question that prompted Samardzija, a consensus first-round talent, to fall into the fifth round.
While I will be the first to question the use of statistics as a scouting tool, his numbers are not at all reflective of a typical first-round talent, let alone a number one pick. In three seasons for the Irish, he was 21-6, 3.82 (including 8-2, 4.33 this past spring), and his strikeout rate was low for a pitcher with power stuff. He had 61 strikeouts in 98 innings in 2006 and 159 strikeouts (and 84 walks) in 240 career innings.
This is obviously a great deal for Samardzija, and it will be interesting to see how it will impact the contract of two of the consensus top pitchers in the draft this year who have yet to sign a contract -- No. 1 pick Luke Hochevar (Royals) and No. 6 pick Andrew Miller (Tigers). I would suspect that the Royals and Tigers, who are probably negotiating bonuses in the $4M - $5M range, are not very pleased about Samardzija's deal.
Posted By : Rick Karcher
Northwestern Soccer Hazing Scandal Claims Coach
Message posted on : 2006-06-21 - 12:05:00
Northwestern Women's Soccer Coach Jenny Haigh fell victim to her teams' "hazing" antics, about which I blogged here, and resigned yesterday. Badjocks.com has yet to gloat.
Posted By : Geoffrey Rapp
Gnarls, Charles, and Trademark Rights in Proper Names
Message posted on : 2006-06-21 - 09:49:00
In yesterday's Philadelphia Daily News, Dan Gross says that former NBA player Charles Barkley “likes� the music group “Gnarls Barkley,� whose hit song Crazy is one of the unofficial anthems of the summer.
Gross writes (HT to Ben Maller):CHARLES BARKLEY says he's “flattered and honored� to be the namesake of Gnarls Barkley, the hip-hop/rock duo comprising Danger Mouse and Cee-Lo.
The Round Mound of Rebound says he has their CD “St. Elsewhere,� and “it's pretty good, an interesting mix of rock and rap.�
“I'm excited for all their success,� Barkley told us yesterday.
Gnarls, who blend hip-hop, rock, funk and soul, and who performed their hit “Crazy� while dressed as “Star Wars� characters at the recent MTV Movie Awards, are getting serious, and well-deserved, acclaim for “St. Elsewhere,� their debut CD.
Earlier, the group had denied any such connection between Sir Charles and Gnarls. The band told the Observer Monthly“You ask me why we're called Gnarls Barkley and I'm asking you “why not?�,' says Cee-Lo. He's hunched over a burger in a hotel suite in Burbank, California, talking about the group for the first time. “The name Gnarls Barkley isn't anchored down. It's a drifter. A High Plains drifter, I might add.�
Danger Mouse grins. “There's no story behind it,� he says, reaching for the cheesecake. A Mouse who likes cheese - no surprises there. “The name doesn't have anything to do with anything.�
Not even Charles Barkley, the basketball player?
“Nope. It's just like everything else on this record. There was no conscious decision about stuff.�
Let's say, as the Daily News does, that the name is dervied from the proper name Charles Barkley. What if the athlete didn't like the music? Suppose that instead of being flattered, Charles Barkley was steamed up. What if instead of a pleasantly deranged pop band, Gnarls Barkley was a death metal neo-fascist rave DJ? What rights, if any, would Charles have to stop Gnarls from using its name? In the 1996 case Abdul-Jabbar v. General Motors, the Ninth Circuit afforded trademark protection under the Lanham Act to the name “Lew Alcindor,� explaining, “One's birth name is an integral part of one's identity.� The key question under the Lanham Act would be whether Charles could prove a “false endorsement claim based on the unauthorized use of a celebrity's identity ••• [which] alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product.� Yogi Berra, as Greg noted here, got an undisclosed settlement after Sex and the City appropriated his name.
Are consumers likely to be confused about whether Charles
Barkley endorses the band? Would the band have a defense based on altering the name somewhat (that is, because it changed a “Ch� to a “Gn� and dropped an “e�)? Is it possible some people might confuse Cee Lo with Barkley, and think that Sir Charles has gone from rebounding to singing high notes? With Cee Lo in the wig and hat, or in a Darth Vader costume, is such confusion impossible? [George Lucas's IP claims are a completely different matter, beyond the scope of the Sports Law Blog].
Posted By : Geoffrey Rapp
South African Sports Law Conference
Message posted on : 2006-06-20 - 14:33:00
Readers in the area (or with particularly large conference budgets) may be interested in the first South African Sports Law Conference, scheduled for September 14-15 at Stellenbosch University. According to the conference flyer:South African sport is currently in a state of flux, experiencing significant upheavals and uncertainty due to a number of factors, e.g. the following:
Continuing difficulties (especially in the major high profile professional sports of soccer, rugby and cricket) in adapting to professionalism and the demands and circumstances of the modern global sports market;
Grappling with the legacy of apartheid in respect of unequal development in different sports and between different groups within a sport, as well as traditional discord and divisions in the governance of sport;
The unique role of politics in the governance, regulation and development of sport in South Africa post 1994; and
Recent, far-reaching, developments in respect of the State's regulatory scheme and role in sport.
Against this background, the proposed theme for the event will be to analyse, from a legal perspective, a number of relevant issues regarding the current state of SA sport and its management; specifically examining the different problems experienced in recent times in respect of the governance and regulation of our major (especially professional) sports.
Posted By : Geoffrey Rapp
Tax Consequences of World Cup Parties
Message posted on : 2006-06-20 - 08:50:00
Cincy law professor and tax expert Paul Caron has an interesting post on the tax treatment of World Cup parties thrown by employers in the U.S. and U.K.
Posted By : Geoffrey Rapp
Bad Words & Sports
Message posted on : 2006-06-19 - 20:13:00
Foul language in sports appears to be on the rise this week, and, interestingly, it's not from a grizzled tobacco-chewing manager or an emotional player. Rather, hangers-on like the always-two-breaths-from-a-mental-breakdown Mark Cuban and the silly would-be Wrigley Field tenor Jeremy Piven are leading the way. For those interested in the legal issues raised by troublesome words, see Ohio State University law professor Chris Fairman's recent article here.
Posted By : Geoffrey Rapp
New Sports Law Articles Available on Westlaw and Lexis
Message posted on : 2006-06-19 - 09:56:00
My library provides a wonderful service of forwarding me on a digest of recently published law review articles by subject matter. Periodically, I'll post a notice of newly published articles on the blog (unless a chorus of voices objects). As you will see, most of these pieces are student-written (which may reflect the much greater interest on the part of students in sports law than among professors). New in June:
Gregory Matthew Jacobs, Comment, Curbing their enthusiasm: a proposal to regulate offensive speech at public university basketball games, 55 CATHOLIC UNIVERSITY LAW REVIEW 547 (2006).
Tracey Oh, Note, From hockey gloves to handcuffs: the need for criminal sanctions in professional ice hockey, 28 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 309 (2006)
Stephen M. Yoost, Note, The National Hockey League and Salary Arbitration: time for a line change, 21 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 485 (2006)
Posted By : Geoffrey Rapp
World Cup Politics
Message posted on : 2006-06-18 - 20:14:00
My thanks again to Michael and everyone else for their allowance of my posts. I dedicate this also to my father, whose life with my mother began in the shadow of the Vietnam War and who always commended to me the nexus between sports and war.
The World Cup has also brought this connection to the front. On the one hand, the proposed visit of the Iranian President to Germany, a nation that criminalizes the denial of the Holocaust, has caused its own controversy. That story has been marred largely by the poilitical triangulation of Neo-Nazi and Anti-Nazi forces in Germany with the Iranian President.
Yet the more pertinent story, I think, is the ban on the World Cup instituted by a fundamentalist Somali caliphate. They control only a part of the country. Yet the notion here is that the advertisement of alcohol marks the World Cup as inappropriate for an Islamic audience. They have banned the viewing of the Cup, including its showing in public film halls. Somali film halls showing soccer games have been a site for warfare before this World Cup, as well.
I favor the depoliticization of sports, where possible. Here, I think it is. A norm developed during the Middle Ages and afterwards, concerning using Churches as sanctuaries (see 16 St. Thomas L. Rev. 473). I wonder if sports halls can be treated in the same way and if a consensus could build to condemn violence at sports arenas (and film halls showing sports events). I wonder too whether sports halls could become a forum for humanity, where various sides of political conflicts can come together. Though not an apolitical ambition, I hope it a worthwhile one. If it is soccer or sport that unites a divided nation, so be it.
Posted By : Jeffrey A. Williams
Ambush Marketing and the De-Pantsing of the Dutch
Message posted on : 2006-06-18 - 20:03:00
An interesting development at the World Cup relating to "ambush marketing," a thorny problem in sports marketing that Greg discussed a while back. Ambush marketing generally "is where a rival company to an official sponsor buys ad space in and around key venues, hoping to receive exposure and association with major events." The practice is of questionable legal validity and poses some ethical challenges as well. Recent legislation in a number of countries has targeted ambush marketeers.
The "ambush" here consisted of a Dutch beer maker Bavaria NV (a rival of World Cup official beer, Bud Light) giving out orange pants to thousands of Dutch fans featuring Bavaria's logo on the rear section of the pants. Holland's fans love to wear orange -- and orange pants are generally hard to find outside of an Austin Powers movie.
FIFA refused fans wearing the pants admission to the Netherlands-Ivory Coast soccer game, leading thousands of fans to remove their pants and watch the game in their skivvies!
Posted By : Geoffrey Rapp
Justice Alito's Pitching Arm?
Message posted on : 2006-06-17 - 12:37:00
Any readers in Philadelphia? I'd love to hear a report on Sunday's Phillies-Devil Rays game, at which Supreme Court Justice Samuel Alito will throw the first pitch. Will Justice Alito practice before his pitching debut, like Justice Stevens did before throwing a high and wide pitch at Wrigley last September? Justice Stevens was believed to be the first Justice to throw out a first pitch. Memo to Justice Alito: Don't wear the uniform you got at Fantasy Camp, or you will get booed.
UPDATE (June 18, 2006): Wearing the uniform, he got it over the plate.
UPDATE #2 (June 19, 2006): Appellate litigator Howard Bashman attended the game (HT to the WSJ Law Blog), and offers this report on his blog:I had the pleasure of attending today's Phillies game in the presence of two Sams. As usual, my son and I were there as part of our Sunday season ticket package. Also in attendance was the person who is likely the highest-ranking Phillies fan in the federal government, U.S. Supreme Court Justice Samuel A. Alito, Jr.
Justice Alito was present to throw out the ceremonial first pitch, along with two other people who don't serve on the highest court in the land. Of course, the only one of those three ceremonial first pitchers whom the umpires were interested in being photographed with after they took the field was Justice Alito. . . . I guess this proves that work as a Justice on the U.S. Supreme Court need not be all-encompassing even in late June of your first Term.
Unfortunately, Bashman provides no report on the Justice's arm (perhaps because he has frequent business in the court?).
Posted By : Geoffrey Rapp
The Legality of Clubhouse "Codes of Conduct"
Message posted on : 2006-06-17 - 09:07:00
In an effort to get some of the L'Affair du Grimsley egg off its face, the Arizona Diamondbacks may implement a "Code of Conduct" for its players that is more stringent than Major League Baseball rules, as reported here. The Arizona Republic's headline: "Rules May Block Kendrick's Code of Conduct." Who's cited in the article for the proposition that such a move would be illegal? A law professor? A union executive? Nope, shortstop Craig Counsell: "A code of conduct will not happen," shortstop Craig Counsell said. "Our rules in this game are through the collective bargaining agreement.
"If it's through the collective bargaining agreement, if it's something that's bargained, fine. But for me, doing things individually, team by team, is a dangerous precedent, and I don't think it's something we should get into."
Is Counsell's counsel correct? He is certainly is right that baseball has collective bargaining. As to “mandatory subjects� of collective bargaining (broadly speaking, wages, hours and working conditions), an employer could not make a change mid-contract that imposed more onerous restrictions on employees without committing an unfair labor practice. There's little doubt that a drug testing policy would be a mandatory item of bargaining as a “condition of employment�. While the exact scope of the Code of Conduct hasn't been released, it would likely touch on mandatory items. And since the team has threatened to release players who violate the Code, regardless of the scope of the Code it likely affects the wages of the team's employees.
However, where Counsell may be going astray is in his presumption that because MLB is it will always be represented by just one bargaining voice. The Diamondbacks are tied to the MLB collective bargaining agreement only because Major League Baseball is a "multi-employer bargaining unit." Each team employs its own players -- that is, MLB players are not employed by the league. Multiple employers can consent to negotiate collectively, which MLB teams have done, delegating authority to the Player Relations Committee (PRC) to negotiate collectively on the teams' behalf. That consent must be genuine. Unions may not coerce employers to bargain as a multi-employer unit, and employer consent to negotiate as a multi-employer unit can be withdrawn -- either before the next contract is negotiated, or in "unusual circumstances" (notably, an employer can't withdraw from a multi-employer bargaining unit after impasse is reached during negotiations). If the union wants to push the issue here, the Diamondbacks could always withdraw from the multi-employer unit before the date of the next contract negotiation (this December). The D-backs players would still have the right (by way of the MLBPA) to negotiate a contract with the team, but it would be a contract that applied only to D-backs players. Might the team also have room to argue that the Grimsley affair (and the current federal investigation of baseball) has created “unusual circumstances� allowing a team to break free of the multi-employer bargaining unit mid-contract?
UPDATE: Reader Pete Kreher writes to inquire whether my suggestion--that a baseball team could (NOT will), prior to the next bargaining session, withdraw from the multi-employer bargaining unit--is consistent with the Fifth Circuit's decision in NASL v. NLRB, 613 F.2d 1379 (5th Cir. 1980). That's a very good question. In NASL, the 5th
Circuit held that the league and individual teams were joint employers and thus that multi-employer bargaining was mandatory. Some have indeed read that case as meaning that all sports leagues must bargain as a multi-employer unit (for example, the attorneys briefing Brown v. Pro-Football in the Supreme Court, see 1996 WL 72350 at 15 n. 8). To be sure, there are many legal and negotiating advantages to be had by teams in bargaining as a multi-employer unit (notably, the non-statutory labor exemption from antitrust law, which may or may not be of significance in baseball, depending on what one views the scope of the "business of baseball" exemption to be in light of Flood v. Kuhn and the Curt Flood Act). I'm not sure that NASL was good law when it was decided, or that its reasoning would be extended to sports leagues other than the now-defunct NASL. To my knowledge, courts and the NLRB have followed NASL only in connection with Arena Football and a rodeo league. This issue was the one of the subjects of Tulane's Sports Law Moot Court competition a few years ago, see 11 Sports Law. J. 273. As others have pointed out, it would be an odd result to hold that a sports league is a joint employer (for the sake of the NLRA), but not a "single entity" for the sake of the Sherman Act. Since most case law suggests that the major leagues are not single entities, it would produce some instability in the law to hold that they are joint employers.
Posted By : Geoffrey Rapp
North Dakota Fighting NCAA Over Use of "Fighting Sioux"
Message posted on : 2006-06-16 - 10:20:00
Last year, the NCAA announced a ban on member schools' use of nicknames, mascots and logos in postseason tournaments that it deemed ethnically or racially demeaning to American Indians. The NCAA determined that at least 18 schools, including the University of North Dakota, violated the policy. Since then, the NCAA has rejected two UND appeals saying the university may not use the nickname or logo during NCAA postseason tournaments, and it may not host a tournament if it continues using them. AP writer Dave Wetzel reported yesterday that UND is now ready to sue the NCAA.
It is very difficult for a party to successfully sue the association of which it is a voluntary member because voluntary associations are generally free to enact rules and policies, and make decisions, governing their members. However, a member can successfully challenge the association's decision if the member can show that: (1) the association violated its constitution or bylaws (and thus didn't have the authority to make the decision) or (2) the association acted in an arbitrary or discriminatory manner.
There are three statements I pulled from Wetzel's article that were made by North Dakota Attorney General Wayne Stenehjem (who is apparently going to file the lawsuit and bill UND for the legal work), which tend to suggest that UND is asserting both of the above claims. First, Stenehjem asserts that "the NCAA's executive committee used constantly changing standards in deciding which colleges could continue using nicknames of American Indian origin and which could not." Second, Stenehjem stated that the committee "decided, more or less by fiat, that some institutions were going to be subject to this rule, and some institutions, for reasons that are not understandable, were exempted." [For example, Florida State University, Central Michigan University and the University of Utah are permitted to use their Indian nicknames without facing any postseason sanction.] Third, he stated that the NCAA's action violated its contract with its members in that its constitution requires that major decisions be approved by two-thirds of its college membership, and no vote was ever taken.
We all knew that when the NCAA implemented this ban last year that there would be disputes over the subjective standard of what constitutes "hostile and abusive" to American Indians. But if UND is asserting that the NCAA's initial determination regarding the 18 schools in violation of the policy was decided "more or less by fiat," I think the NCAA prevails so long as the NCAA acted in good faith in deciding which schools' nicknames and logos were hostile and abusive. I also think the NCAA prevails if UND is asserting that the NCAA arbitrarily determined which of the 18 schools on the list would continue to be banned. If memory serves me correct, the NCAA decided that it would exempt any school on the list if it could demonstrate that the local tribe consented to the use of the nickname and logo (which FSU, CMU and Utah were able to demonstrate). While Wetzel's article doesn't address it, to my knowledge, the Spirit Lake Sioux tribe still has not consented to UND's use of the name ("Tribe rejects Fighting Sioux nickname"). Therefore, it seems that UND would have a difficult time establishing that the NCAA acted in an arbitrary or discriminatory way against UND under these circumstances because the same standard applied to all 18 schools and, regardless of whether you agree with it, it seems like a reasonable compromise by the NCAA with respect to these 18 schools found in violation.
Even if UND could establish a claim against
the NCAA, an interesting question would be, what are its damages? First, the ban only applies during postseason tournaments, so arguably UND has no damages yet and maybe the NCAA can argue that a lawsuit right now by the NCAA is not ripe. Secondly, even when UND enters postseason play, what are the damages for not being able to use the nickname and logo during those games? UND may or may not need to buy new uniforms depending upon whether the uniforms even have the nickname and/or logo (presumably they already have jerseys that just say "North Dakota" but that is pure speculation on my part). UND may also incur some cost by removing decals on helmets for postseason play and then reapplying them for the regular season. And I suppose UND would incur some costs associated with covering up banners with the nickname and/or logo when UND hosts a postseason tournament.
Now, to UND and its alumni, this is obviously not about the money. But in court, I'm afraid that it is....
Posted By : Rick Karcher
Vecsey's Thoughts on Fortson v. Colangelo
Message posted on : 2006-06-16 - 08:43:00
I asked Peter Vecsey if he had any thoughts I could share with our readers regarding his victory in Fortson v. Colangelo, which I blogged about yesterday. Here's his response:From: Peter.Vecsey
Sent: Friday, June 16, 2006 4:36 AM
To: Rapp, Geoffrey
Subject: RE: Fortson v. Colangelo
As a veteran NBA columnist/analyst, upon cringing at the sight of Danny Fortson, "The Flagrant Forward," unconscionably upend Zarko Cabarkapa in mid-flight, I couldn't help but insult him every way imaginable.
If you've played the game at any level, it's understood how dangerous it is to knock someone off balance or be knocked off balance while stretched out airborne holding the ball. You're completely vulnerable. It's like slipping on ice. You're walking gingerly and suddenly you're seeing your legs splayed above your head and your back and neck are about to hit the ground hard with scant reflex time to brace your fall, other than throw your arm back.
This is what Zarko did and, as a result, he broke his wrist. He lost almost the entire season a rookie year (maybe even a career) that had been very promising. While physically repaired, I'm still not sure if he has recuperated from the mental trauma. The Suns certainly didn't think he had because they traded him first chance they could.
In any event, the 6-8, 260-pound Fortson's intentional two-handed shove of a defenseless opponent was as dirty as it gets, especially since the game had long been decided. There was nothing to gain other than to show people how little regard he had for another human being. Had that happened in a playground, schoolyard, "Y" or whatever, and the submarined player was able to get up in one piece, there would've been a fight.
Fortson prides himself on being an enforcer. He relishes his role as a hit man. His eyes flash demonically after nailing opponents with forearms to the backs of heads. He loves that distracted opponents fear how far he might escalate his bent for violence. He revels they're always on the lookout. He wants us to believe he's the baddest bully on David Stern's block. He wishes there were no referees to protect them.
Next thing you know, Fortson, a multi-repeat offender when it comes to uncivilized behavior between the lines, is crying to the court because Jerry Colangelo and I branded him a thug...when, in fact, he is a broken down wanksta.
The court should have thrown out Danny Pigtails' frivolity at first base, not wait until it was rounding third and charging into home plate.
Outsiders may view the court's decision as merely a first amendment victory. Or, because Fortson is a public figure, they may believe proving slander against a columnist with an acutely negative opinion, is impossible. I find comfort in the cliche that there's no defense as unbeatable as the truth.
Peter Vecsey
Posted By : Geoffrey Rapp
Taxonomy of Legal Blogs
Message posted on : 2006-06-15 - 20:27:00
Buckeye 3L Ian Best has developed a Taxonomy of Legal Blogs for those who might have an interested in law other than sports law.
Posted By : Geoffrey Rapp
Danny Fortson Loses “Thug� Suit Against Jerry Colangelo and Peter Vecsey
Message posted on : 2006-06-15 - 16:43:00
Last week, NBA journeyman and “flagrant foul machine� Danny Fortson lost his defamation suit against Suns owner Jerry Colangelo. The dispute concerned comments Colangelo made in 2003 after Fortson (then with Dallas) committed a flagrant foul leading Suns rookie Zarko Cabarkapa to break his wrist. At the time, the AP recounted:Fortson was called for a flagrant foul on the play, and Suns owner Jerry Colangelo said he will ask the NBA to fine or suspend the Dallas player.
"Whether it's a fine or a suspension, it's not enough for him," Colangelo said. "He should be put down for every day that he (Cabarkapa) is out. I'll do everything in my power to see that happens. With the game over, there was no need for that."
The injury came with 2:58 left and the Suns leading 112-88.
"He's a thug," Colangelo said.
Before leaving, Fortson said he apologized to Cabarkapa.
"I had no evil intent," he said.
Cabarkapa was in tears in the Suns' dressing room, but later composed himself and said through a translator, "I can't comprehend it. I don't know exactly what happened. I just know I was trying to drive to the basket and Fortson pushed me."
In October, 2004, Fortson sued Colangelo, the New York Post, and Peter Vecsey (Vecsey characterized Fortson—directly or by implication—as “thugged out,� a “vacant lot,� a “wanksta� and a “meaningless mass� in his column in the Post). The District Court (S.D. Fla.) granted summary judgment on June 5 in favor of Colangelo and the Post's holding company (the Westlaw citation is 2006 WL 1589793) (Vecsey was never served a copy of the complaint).
Mike has explained how hard defamation cases can be to win in connection with John Daly's “Thug Life� case here and here Bob Lobel's “drunk sportscaster� suit here.
Ultimately, Fortson was done in by the court's characterization of Vecsey's and Colangelo's words as “rhetorical hyperbole� rather than fact. Rhetorical hyperbole falls on the non-actionable “opinion� side of the fact-opinion divide in defamation law. What the court calls Fortson's “well-publicized history of overly aggressive play (fouls, ejections, fines, and suspensions)� didn't help his case.
The court opined that “[t]o foreclose the use of hyperbole, under the threat of civil liability, ‘would condemn [sports commentary] to an arid, desiccated recital of bare facts.'�
While this story has been covered in the media in the past, no news outlet has yet reported the court's opinion (as far as I can tell).
Posted By : Geoffrey Rapp
The Legality of Oral Promises by NBA GMs to Potential NBA Draft Picks
Message posted on : 2006-06-14 - 12:02:00
Jeff Clark of Celtics Blog e-mails me an interesting topic to consider: oral promises made by NBA general managers to potential draft picks. In these promises, a GM promises a draft-eligible player that if he is still on the board when the team selects, the team will draft him. Here are Jeff's thoughts:
What kind of agreement is in place here? Is it considered a oral contract? What are the ramifications of backing out? I believe the Celtics asked Orien Greene if they could back out of their promise last year when they saw that Amir Johnson was still on the board.
Clearly, oral promises are of great value to the players who receive the promises. Perhaps foremost, a promise indicates a "worst-case scenario" (i.e., at worst, the team making the promise will pick him). Moreover, for some underclassmen, a promise can help them decide whether they should remain eligible for the draft or return to school. The same is true of international players who already earn high salaries playing in Europe: remaining eligible in the draft only makes sense if they are going to be a high enough pick (and thus command a high enough salary). Others will use promises to help determine which teams to workout for--if you have a promise from, say, the Seattle Supersonics, who pick 10th in this month's draft (June 28), then you will probably spend your time meeting with teams picking 1-9, rather than those picking after 10.
Promises also supply important benefits to teams. For instance, they may convince the player receiving the promise to remain in the draft (if that is an issue). Or they may discourage the player from meeting/working out with other teams, thus raising the probability that the player is still on the board when the promising team selects.
And promises have clearly been influential. For example, in the 2003 NBA Draft, Celtics GM Danny Ainge promised high school senior Kendrick Perkins that the team would select him in the first round; without that promise, it is thought that Perkins would have matriculated to the University of Memphis to play for John Calipari. And Ainge kept his promise (by way of a trade with the Memphis Grizzlies). In that same draft, at least two other high school seniors received first round promises--Travis Outlaw (Portland) and Ndudi Ebi (Minnesota)--and those promises were also kept. Interestingly, one of the top high school players in the 2004 NBA Draft who did not receive a first round promise was LaMarcus Aldridge, who, without the promise, removed his name from consideration and matriculated to the University of Texas. Fast-forward two years, and Aldridge is expected to be one of the top three picks in this month's drafts. Brandon Roy--who is also projected to be a top pick--has a similar story from the 2002 NBA Draft. Promises were so influential in the 2005 NBA Draft that Sports Illustrated Ian Thomsen's recap of it was entitled "Behind the Curtain: Promises, Surprising Picks Quietly Shaped '05 Draft." In this draft, it is thought that international player Tiago Splitter
won't stay in the draft unless he obtains a promise from a team picking in the lottery (apparently, the buyout in his European contract is too costly to take mid to late 1st round money).
But what happens when a promise isn't kept? And has that ever happened?
First off, I'm unaware of an instance where an oral promise to a potential draft pick was broken, although in a recent interview with the Portland Oregonian, Portland Trail Blazers President Steve Patterson said, "There can be promises that just don't work out to be so guaranteed." I'm not sure whether Patterson is alluding to broken promises in the past or the potential for broken promises (he was discussing Tyrus Thomas), but other than his statement, everything I've read suggests that teams do, in fact, fulfill their draft promises. However, if you know otherwise, please contact me--I would appreciate it. **UPDATE**: A couple of people commenting on True Hoop say that both Rashard Lewis and Vladimir Radmanovic were the victims of broken promises--and their agents were irate--check out the post.
Hypothetically, let's say that a team in the 2006 NBA Draft doesn't live up to its word. And let's try this hypo: Celtics GM Danny Ainge promises point guard Marcus Williams that if he is still on the board at #7 (when the Celtics pick), Ainge will take him. But on draft night, something strange happens: power forward LaMarcus Aldridge--who, as I note above, is projected by most draft experts to be a top three pick--is still on the board at #7. And Ainge decides to take Aldridge instead.
Can Marcus Williams successfully sue Danny Ainge and the Celtics for breach of contract or detrimental reliance? The answer is probably "no" but not without some decent arguments by Williams. Here's why:
Although many oral contracts are enforceable, the Statute of Frauds (adopted in some form by all 50 states) requires that there be a written contract for any contract that entails more than one year of performance. Here, Williams would have to sign a rookie first round contract, which would entail at least three years of performance, and possibly five depending on the exercising of team and player options. On the other hand, perhaps Williams could argue that oral contract between he and the Celtics only concerned the draft itself, and not the subsequent player contract he would sign. Under that interpretation, the Statute of Frauds would not apply.
But even then, Ainge could argue that the alleged agreement lacked "consideration," which requires that each party give something up for formation to a contract. Ainge could say that Williams didn't give up anything when he received a promise from him--Williams was going to participate in the draft no matter what (in contrast, with the Kendrick Perkins example described above, Perkins could argue that his consideration was in remaining eligible for the draft). But Williams could argue, perhaps, that he decided to not work out for certain teams after receiving Ainge's promise--and to the extent that hurt his draft position, he did give something up: his stock
with certain teams. Such an argument would be consistent with a detrimental reliance (promissory estoppel) claim, which does not require consideration, but modern courts are usually reluctant to recognize it.
Yet even if Williams could argue that there was a valid oral contract, keep in mind that oral contracts are extremely difficult to prove. Did Ainge really promise Williams, with 100% certainty, that he would take him, or was it more of a "if you're still on the board when we pick, I think you might enjoy playing with Paul Pierce" type of statement? Contract law typically considers that kind of nebulous promise to be an illusory promise, which is not enforceable. And were there any witnesses? Would it simply be Williams' word versus Ainge's word? Or Williams' agent's word versus Ainge's word?
Alternatively, what happens if Williams is still on the board at #7 and Danny Ainge is about to select him when, suddenly, former teammate and Minnesota Timberwolves GM Kevin McHale calls Ainge up and says, "Danny, hold on a second! Look, we'll trade you Kevin Garnett for that pick, plus Al Jefferson, Gerald Green, and Dan Dickau." And Ainge decides to make the trade. And with the 7th pick, McHale selects center Patrick O'Bryant. Marcus Williams then free falls, until the Philadelphia 76ers select him at #13. Would Williams have a claim against the Celtics in that instance? Here, I think the answer is almost certainly "no," since an oral promise to draft a player is likely conditional on the player being there at that pick and that the team actually makes that pick--but you can see the interesting legal complexities of oral promises in the context of the NBA Draft.
This analysis shouldn't be limited to the "legal," however. Consider the possible reputational harm a GM might endure if he breaks a promise. He would lose credibility and possibly generate negative attention for his employer. He could also suffer a backlash from certain agents, which could affect his capacity to sign free agent players in the future. Those types of consequences may be far more powerful than any legal issues.
Also see: True Hoop's Henry Abbott discussing this post (6/14/2006).
Also see (2): Celtics Blog's Jeff Clark discussing this post (6/14/2006).
Also see (3): Contracts Prof Blog's Carol Chomsky discussing this post (6/14/2006).
Also see (4): Oral Promises & Professional Sports: The Carlos Boozer Saga (7/13/2004).
Posted By : Michael McCann
On Wednesday, U.S. Senate Honors Former MLBer Rick Monday
Message posted on : 2006-06-14 - 09:56:00
The United States Senate has passed a resolution honoring Rick Monday, currently a Dodgers broadcaster and formerly an outfielder with teams including the Chicago Cubs, Dodgers and Athletics. The full text of the resolution can be found here. The resolution honors Monday's memorable 1976 rescue of an American flag from two protesters intent on lighting it aflame in the outfield at Dodger Stadium (the event is is described here and here). A video of Monday saving the flag (with some interviews) is here. A press conference is being held today. HT to Ben Maller.
Posted By : Geoffrey Rapp
Jerry Rice Slams Deion Branch's Decision to Holdout
Message posted on : 2006-06-13 - 20:13:00
New England Patriot Deion Branch is one of the NFL's premier wide receivers and most clutch players (he was MVP of Super Bowl XXXIX). By all accounts, he's also well liked and respected by teammates, coaches, fans, and the media--and in the interviews that I've seen of him, he seems genuinely humble and appreciative. He's also overcome very difficult life circumstances.
But he's not happy about his salary for the 2006 season or the Patriots' unwillingness to assent to his demands for a new multi-year contract. Specifically, he is in the last year of his five-year rookie contract, which over the last four seasons has paid him about the league-minimum (plus a $1 million signing bonus), and he is slated to earn about $1 million this year. He wants a new contract that will pay him at least $12 million in bonus and gauranteed dollars. The team has refused, and to show that he's serious/angry, he's decided to holdout of Patriots' minicamp, which began today.
Earlier this afternoon, Branch's holdout generated a very harsh reaction from Hall of Fame wide receiver Jerry Rice, who was debuting as co-host of the new SIRUS radio show "Afternoon Blitz":
That's crazy. You go to minicamp, show your loyalty. Get in there and fight and show them you've still got it and you just need them to step up to the plate now. Why are you going to hold out? You are still under contract. It makes no sense. I did that once and I felt stupid. I really felt stupid because you are sitting on the outside looking in. You need to be there. You need that type of interaction with the team. You need to develop that chemistry.
Get in there. Work your butt off. Prove yourself. Let them know, ‘I still control this area. This is what I do. This is the area where I play the best football.' And he's going to get compensated for that. But don't hold out. I think it's a big distraction and I think it is going to hurt him down the road.
Is Rice right? Should Branch honor his contract? He did agree to it, after-all. And shouldn't Branch be loyal to his organization--the same organization that took a chance on him in the second round of the 2002 NFL Draft, even when most draft experts projected him as a 4th or 5th round pick?
Or is Branch right? He's vastly underpaid, his contract--like almost all NFL contracts--is not guaranteed (meaning one injury could obliterate his career at any moment), and he was likely pressured by the Patriots into signing a 5-year deal as a rookie.
Branch might also wonder (as we did here in February) why most fans don't seem angry when NFL teams force players into renegotiating their contracts, under the threat of being cut: If Branch isn't being loyal to the Patriots, then shouldn't we say that the Patriots weren't loyal to Willie McGinest and Ty Law and other popular veterans who wouldn't take pay cuts and were released?
So who's right?
Posted By : Michael McCann
World Series Home Field Advantage: Why Must It Be Negotiated?
Message posted on : 2006-06-13 - 20:00:00
Bob Nightengale of USA Today reports today that Major League Baseball has not reached an agreement with the players union that will reward the All-Star Game winner with home-field advantage in the World Series ("Status of All-Star Game still unsure").
The All-Star Game format was changed in 2003 after the previous year's All-Star Game that ended in a 7-7 tie when both teams ran out of pitchers. At that time, MLB and the union negotiated a two-year deal and extended the agreement last year. So now MLB and the union have no agreement in place, but Commissioner Bud Selig said he is optimistic an agreement will soon be reached to retain the 3-year-old format: "We're still hopeful because I think it's really good for the game. Everyone likes it. The owners. The players. The sponsors. It just adds a lot of meaning." MLB executive vice president Rob Manfred, like Selig, is "hopeful" they will have an agreement with the union: "I think originally we had hoped that we would have sort of a permanent resolution to this issue. Time has become pressing because we're getting closer to the game. We decided to focus on a one-year agreement and hopefully have a multiyear done with the next (labor) agreement."
However, according to union head Don Fehr: "We're still talking to them, so we'll see. It's something that has to be negotiated."
I wonder what Fehr means by saying that "it's something that has to be negotiated"? Why must it be negotiated? Why doesn't MLB just tell the union that the All-Star Game is going to dictate home-field advantage for the World Series? The National Labor Relations Act requires an employer to negotiate "mandatory subjects" with the union. The NLRA defines mandatory subjects as those dealing with "wages, hours and working conditions". For once I'd like to see MLB stand up to the union and say that home-field advantage for the World Series is not a mandatory subject, and, thus, there's no negotiation.
In case you're wondering why maybe the MLBPA is the strongest union in professional sports....
Posted By : Rick Karcher
An Expensive Accident
Message posted on : 2006-06-12 - 14:12:00
I hope Pittsburgh QB Ben Roethlisberger, seriously injured today while riding his motorcycle without a helmet, is okay. Although I must say, what an idiot.
Last year, when Cleveland Brown Kellen Winslow was injured in a motorcycle crash, it was widely believed that he'd forfeited his bonus money under the NFL Standard Player Contract "other activities" clause. That clause bars players from engaging in activities other than football "which may involve a significant risk of personal injury". It will be interesting to see whether, if the injuries cost Roesthlisberger significant playing time or even end his career, the Steelers will be as generous as the Chicago Bulls were when they honored a year of Jay Williams' contract even though that player's motorcycle-riding breached the equivalent NBA contract provision. What may set Roethlisberger apart? On the one hand, unlike Winslow and Williams, Ben wasn't wearing a helmet, which is the equivalent of playing Russian Roulette after putting six slugs in your revolver. On the other hand, unlike Williams and Winslow, Ben has led a (pro) team to a championship.
I bet Roethlisberger wants to eat these words, from May 2005:
Roethlisberger explained that he does not consider the way he rides his Harley sans helmet as taking much risk.
"It's one of those things, where he talked about being a risk-taker and I'm not really a risk-taker, I'm pretty conservative and laid back," Roethlisberger said. "So the big thing is just be careful and that's what we do. I think every person that rides is careful. That's the biggest thing, I'll just continue to be careful. I told him we never ride alone we always ride in a group of people, and I think that makes it more safe."
Update (June 15, 10:19 pm): Out of the hospital, Ben is all apologies.
Posted By : Geoffrey Rapp
The Psychology of Al Jefferson: Privacy Laws and Psychological Testing of Prospective NBA Draft Picks
Message posted on : 2006-06-12 - 13:11:00
In a recent interview with NBA.com, Portland Trail Blazers President Steve Patterson discussed why he opted to pass on Al Jefferson with the 13th pick in the 2004 NBA Draft:
We had to fly a psychologist down there for him to take a test. He had difficulty with it. There were some other things that weren't positive about him that I'm not going to talk about in the interview.
I'm surprised by Patterson's candor. Revealing that a prospective draft pick failed or struggled with a psychological test is a rather disparaging nugget of information. Granted, this revelation was made two years after the fact, and since that time, Jefferson has played reasonably well for the Boston Celtics, who drafted him with the 15th pick in the 2004 NBA Draft. He has also been a good teammate/citizen by all accounts (e.g., Celtics Blog on Jefferson; True Hoop on Jefferson).
But should Patterson have publicly disclosed medical information obtained in a pre-employment inquiry? And could he have broken the law by doing so?
Generally, employers are forbidden from disclosing to a third party any medical information requested of an applicant or voluntarily revealed by an applicant during the interview process. In fact, any medical information obtained by a prospective employer must be safeguarded from other applicant materials (i.e., kept in a different file, with heightened protection from accidental disclosure). This is part of the duty of confidentiality owed by employers to applicants. This duty can be waived if the applicant later assents to a disclosure, or if there is a court order directing a disclosure.
Presumably, Patterson would argue that the process leading up to a sports draft should be considered qualitatively different from a normal interview process. This argument, however, would probably not work, as plaintiffs and defendants in lawsuits concerning pro sports drafts have usually treated them akin to collectively-bargained employment practices. Moreover, even if there was a distinction, it may not be salient to the circumstances in this instance.
A better argument for Patterson may be that a psychological examination for a prospective draft pick is not a medical examination. And the U.S. Equal Employment Opportunity Commission has stated:
Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment. For example: An employer gives applicants an RUOK Test, an examination that reflects whether applicants have characteristics that lead to identifying whether the individual has excessive anxiety, depression and certain compulsive disorders.
On the other hand, psychological examinations designed to measure only things such as honest, tastes, and habits, are not medical. For example: An employer gives the IFIB Personality Test, an examination designed and used to reflect only whether an applicant is likely to lie.
We don't know enough about the psychological examination administered to Jefferson to make an assessment, but I suspect it went beyond what is normally examined in a non-medical psychological examination. We also don't know if Jefferson assented to the disclosure, or if, by merely participating in the draft, all prospective draft picks assent to this type of disclosure.
Slander laws
may also be relevant in this analysis: by telling the world that Al Jefferson struggled with a psychological test, Steve Patterson may have defamed him. And just think about what comes to your mind when you hear that someone struggled with a psychological test--there's a good chance you may think that he's crazy or dangerous, or at least weird. You might also equate "psychological test" with "intelligence test," even if they are very different types of examinations. But not only is slander's standard of proof higher for public figures, but truth is an absolute defense, and Patterson seemingly told the truth: Jefferson struggled with a psychological examination.
I think it is fair to say that Al Jefferson is highly unlikely to pursue any kind of litigation against Steve Patterson and the Portland Trail Blazers, even if the relevant statue of limitations were favorable. Not only is Jefferson off to a promising NBA career, but the viability of any prospective claim seems questionable. For that reason, the analysis in this post is very much a thought exercise, rather than any kind of litigation roadmap. On the other hand, if a GM in the future were to make a similar remark, and if the affected player weren't off to a successful career, perhaps there would be some practicality to all of this.
Regardless, I do question the appropriateness of Patterson's comment. Badmouthing someone in public is almost never a good idea, particularly when you question their mental state. Perhaps there is a pattern here with NBA teams and NBA players.
Also see: Paul Secunda of Workplace Prof Blog discussing this post (6/14/2006).
Also see: Adam Kolber of Neuroethics & Law Blog discussing this post (6/13/2006).
Posted By : Michael McCann
African-American Tennis Umpire Files Race Discrimination Lawsuit
Message posted on : 2006-06-12 - 10:12:00
Saturday's Washington Post reports that Cecil Hollins, a former "gold-badge" tennis umpire and an African-American, has sued the United States Tennis Association for race discrimination. An early version of the plaintiff's complaint can be found here. According to the Post, Hollins
often questioned why the U.S. Tennis Association would not assign him to umpire a men's singles final, an honor never accorded to a black man. . . .No black man or woman in the history of the U.S. Open has umpired a men's semifinal or final singles match.
The case has now attracted the attention of prominent New York and national politicians (including the NY Attorney General's Office), something the USTA blames on Hollins' supposedly press-hungry lawyer. The USTA has declined to comment on the case -- and has, to date, provided no explanation for why Hollins was stripped of his umpire credential.
The Post is about nine months late to this story, which was covered elsewhere in September, 2005. Hat tip to the WSJ law blog.
Posted By : Geoffrey Rapp
HGHer Grimsley Won't be Paid Salary
Message posted on : 2006-06-10 - 17:18:00
The latest development in the Jason Grimsley saga is today's news that the Arizona Diamondbacks, who unconditionally released Grimsley this week after learning that his house was raided by federal agents, do not intend to pay Grimsley the remainder of his salary for the year. It is customary for released MLB players to be paid for the remainder of a season. The Diamondbacks' move also contradicts published statements made by Grimsley's agent, Joe Bick, who said that while he expected Grimsley would retire, he thought the player would be paid this year's salary.
By way of published statements, the team has effectively dared Grimsley, likely to become the Linda Tripp of the steroids scandal (especially if his statements manage to drag down current MLB darling Albert Pujols), to have his union rep file a grievance. The team seems particularly miffed that after Grimsley's house was searched in April, the player declined to inform the team promptly (but instead suited up in a DBacks uniform).
Although I have no particular love for Grimsley, I suspect that the team has overstepped its bounds here. Baseball's commissioner has virtually unlimited power to act in the best interests of the game of baseball, and could conceivably, without threat of judicial / arbitral reversal, suspend Grimsley without pay. But the team itself does not have those same broad powers, unless the contract contains a clause allowing the team to escape from its obligations if the player is found to have used a controlled substance. The so called Loyalty Clause that requires a player to "obey the club's training rules" would not seem to me to be sufficient grounds to escape the contract. The Loyalty Clause (Section 3(a) of the Uniform Player Contract) provides:
The Player agrees to perform his services hereunder diligently and faithfully, to keep himself in first-class physical condition and to obey the Club's training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.
While it may be a close issue, I don't think this clause is sufficient cover for the Diamondbacks. Is this language specific enough to be enforceable? Is Grimsley's admitted usage of HGH, anabolic steroids and amphetamines a clear violation? I think Grimsley is going to need all the money he can get (to pay for a good defense team), and pursuing that grievance is a good idea if his claim is a likely winner.
As I've suggested in some earlier posts, the steroids scandal may present many of these interesting contractual disputes. Can a team escape from its contractual obligations if a player tests positive? What if a player, like Grimsley here or Jason Giambi a year ago, hasn't failed any baseball steroids tests, but has admitted to past use? Does the fact that Grimsley is the target of law enforcement attention matter?
Update: According to agent Bick, Grimsley plans to fight the Dbacks over this matter. A grievance is "already in process," as ESPN reports here.
Posted By : Geoffrey Rapp
Ticket Reselling, Price Controls, and Red Sox-Yankees Games
Message posted on : 2006-06-08 - 21:37:00
Thanks to attorneys Matthew Saunders and Bryan Stroh (one of my former softball teammates at UVA Law) for passing along an interesting story by Bruce Mohl of the Boston Globe concerning ticket scalping: A Massachusetts court has allowed a consumer to sue a ticket reseller for charging more than $2 above face value for Red Sox tickets. The defendant, Admit One Ticket Agency, was reselling a Red Sox-Yankees ticket with a face value of $80 for $500. As we all know, tickets to Red Sox-Yankees games are probably the most coveted tickets in Boston. Although Massachusetts law on ticket scalping prohibits the reselling of tickets for more than $2 above face value, the state's Department of Public Safety, which licenses ticket resellers, chooses to not enforce the law, claiming that its limited resources are better directed towards matters of public safety.
Admit One's attorney,
Joel Beckman, argues that the law has no business regulating the price of tickets to baseball games: "Even in Boston, I don't think you have a right to attend a baseball game." Beckman also argues that the plaintiff, renowned consumer activist
Colman Herman, never bought the ticket, and thus was not injured. In response to that argument,
Judge Mark Coven finds that Herman may have been injured by his inability to purchase the ticket expect at an inflated price.
This will be an interesting case to follow. Should the market dictate the cost of tickets available on resale, or should the law create a price ceiling? And if you think there should be a ceiling, should there also be ceilings on tickets resold to other entertainment events, like concerts or plays? Or should the law only institute price controls on matters of public necessities, like certain utilities and medicines?
Posted By : Michael McCann
In Less Than 24 Hours, the (Rest of the) World is Taking a Month Off
Message posted on : 2006-06-08 - 11:13:00
The most important kickoff in four years is less than twenty four hours away, when Germany and Costa Rica take the field to begin the 2006 FIFA World Cup. The World Cup has the international flavor of the Olympics, the win-or-go-home excitement of the NCAA's March Madness tournament, and a party atmosphere more raucous than any college football tailgate (especially if you can find a pub frequented by, say, Europeans). If you've never paid it attention, give it a chance this year.
I'm sure this site will feature updates and postings on sports law issues raised by this year's event. So far, this year's Cup has presented a number of fun issues touching on a variety of legal subjects:
How can a country that doesn't exist (Serbia-Montenegro, which split last month), field an international team?
Can Hooligans be banned from an entire country?
Is Germany doing enough to stop the influx of sex workers in connection with the Cup?
Should ticket scalping by Cup players be banned?
Is just saying “no� enough to stop racism?
Should the president of a would-be nuclear state be banned from coming to watch his country play?
Should laborers be given time off to watch games?
Should employers be able to insure against such absences?
What procedures should be employed to investigate doping violations?
Should it be legal to give World Cup tickets to German bureaucrats?
There are also those classic questions, like whether legal systems affect World Cup success and the extent of the impact of World Cup success on national financial markets.
For less legal-centric commentary, I'd recommend the New York Times or BBC World Cup Blogs and FIFA's official Cup news site.
Posted By : Geoffrey Rapp
NCAA Releases Initial List of "Diploma Mill" Schools
Message posted on : 2006-06-08 - 07:45:00
To commence its crackdown on so-called "diploma mills" that provide prospective college athletes with questionable class credits, the NCAA yesterday disclosed the names of 15 schools. According to the NCAA, it no longer will count credits from those 15 schools and others it's examining and expects to identify later this month. Steve Wieberg of USA Today noted: "The association's action raises questions about the college eligibility of players, most in basketball and football, coming out of those schools and needing a minimum number of credits from core high school courses to satisfy NCAA academic standards."
Wieberg's point is well-taken and the NCAA will have plenty of issues to think about. First, it will be interesting to see how the NCAA handles the eligibility of current NCAA student-athletes who attended a diploma mill school prior to college. Will these student-athletes lose their scholarships, or will they be "grandfathered in" so to speak? I suppose the NCAA could require these students to take additional course credit to make up for the core high school course credit that they never satisfied. And if they are required to take additional course credit, would they maintain their NCAA eligibility while enrolled in such courses or would they temporarily lose eligibility during that period of time? The same issues must also be addressed with respect to students currently attending these diploma mill schools who have already accepted college scholarships.
The future impact of the NCAA's action really depends upon how many athletes, high school and college, will ultimately be affected when this is all said and done. According to Weiberg, NCAA officials were uncertain how many college-bound athletes may be affected by the initial listing, though NCAA vice-president Kevin Lennon said it was "probably not a lot." However, Lennon said that the next list is expected to include schools with more prominent sports programs. Both affected schools and athletes can appeal the association's ruling, and Lennon said separate appeals committees are expected to be filled in the next two weeks.
Posted By : Rick Karcher
More Religion in Sports
Federal Steroids Probe Sweeps in Grimsley, Coffee Pots
Message posted on : 2006-06-07 - 08:47:00
Gosh, who knew pitchers used steroids too! According to an affidavit filed by lead G-Man Jeff Novitzky in federal court, Grimsley has admitted to using Human Growth Hormone, amphetamines, and other performance-enhancing substances. In the affidavit, Grimsley also "names names" of other users (although those names have yet to be released--they were blacked out in court records).
Grimsley also stated that amphetamines were available "like aspirin" in MLB clubhouses, and were often mixed in with coffee. Pots marked "leaded" apparently included the drugs, while "unleaded" pots constituted normal coffee. I guess de-caf wasn't an option.
The Arizona Republic broke this story yesterday. Grimsley apparently received a kit of HGH at home on April 19, prompting his confrontation with the Feds. This tends to reinforce the idea that MLB's "get tough" policy on substances contains a rather large loophole by not including testing for HGH.
UPDATE: Thanks to Satchmo for pointing me to Novitsky's affidavit, which you can find here.
Posted By : Geoffrey Rapp
.666
Message posted on : 2006-06-06 - 15:59:00
In honor of all the hype here and here:
Question: Which current slugger's previous highest season slugging percentage stat was .666?
Answer: Albert Pujols. And the news is he's out for six weeks. Coincidence?
Posted By : Geoffrey Rapp
Good Call, Ump: Possible Gag Order and Minor League Managers
Message posted on : 2006-06-06 - 13:29:00
Phoenix attorney John M. Powers, who guest blogs here and who played professional baseball
He mentioned to me that either Major League Baseball or the Owners (whoever had an economic stake in the strike and umps' salaries, I would guess—or both) had issued a sort of gag order on the minor league managers. The goal was to prevent the managers from complaining about too many calls either during the game or to the newspapers. I don't know if the order was official, or if there was a memo, or if there was any kind of penalty for violating it, but it seems to bring up some interesting issues.
Posted By : Michael McCann
Are Fantasy Leagues Bad for Baseball?
Message posted on : 2006-06-05 - 10:47:00
In January, Greg reported on a brewing dispute between Major League Baseball and CBC Distribution & Marketing, a supplier of player names and statistics to fantasy leagues. This dispute is now in court: CBC has sued baseball, claiming a first amendment violation. The plaintiff's complaint is here; trial is scheduled for September 5.
In last Sunday's New York Times, George Vecsey suggested that MLB's "boobs" should "stop trying to gouge these ersatz leagues and instead worry about its abandonment of its traditional working class fan base." Along the way, he took a number of swipes at fantasy leagues:
I've never understood the appeal of fantasy sports leagues . . . .
I find fantasy leagues to be as empty as reality shows on the tube or as the brief poker fad (it's over now, isn't it?) . . . .
[F]antasy leagues are a sure sign somebody has way too much spare time.
[F]antasy league types ought to get a life.
Rising in defense of fantasy leagues, letterer-to-the-editor Todd Hemphill of Trinity, Florida, offers an explanation for the success of fantasy baseball this Sunday,
There was a time when rooting for the local teams made sense. With few exceptions there was continuity from year to year. The players were part of your community. When they succeeded, there was a sense of pride and accomplishment. Now players are hired guns, spinning through a revolving door of multimillion dollar offers, living in mansions far removed from the cities they supposedly represent. Owners are businessmen, period.
Is it better to be a Florida Marlins fan and watch your team marched off to auction block after every winning season? No thanks.
Instead, we create virtual teams. We make decisions about our teams. We vie with other owners with pride and genuine rewards at stake. It keeps our interest in sports alive and frees us from meaningless attachments to teams that no longer have anything to do with us.
The interesting thing about this defense of fantasy leagues is that it does seem to provide a sensible business reason for baseball to try to make life difficult for fantasy leagues. If fantasy and roto-baseball replace come to replace team allegiances, this may cut into MLB's profits over the long-run. Roto-players certainly don't have any reason to attend a game live. I would also suspect that they have little reason, unlike participants in an NCAA tournament pool, to watch baseball games on TV. Instead, they watch highlights or, more likely, simply check box scores for their players on the internet. Is it so wrong for MLB to want a piece of the action, to the extent that it is taking away viewers (and thus hurting ad sales) and cutting in to live attendance?
Posted By : Geoffrey Rapp
Possible Lawsuit Brewing Against NCAA Over "Diploma Mills"
Message posted on : 2006-06-03 - 08:40:00
USA Today reports that an NCAA investigation has uncovered cases of abuse and fraud in academic standards at some non-public, non-traditional high schools and that the NCAA will begin releasing the names of the schools from which it will no longer accept grade transcripts of athletes, which could prevent them from accepting college scholarships ("NCAA uncovers academic fraud at some non-public schools"). The NCAA's investigation was accelerated when it was discovered that a Miami correspondence school that had no classes or instructors and operated almost without supervision, was allegedly offering diplomas for $399.
But according to Don Jackson, an attorney representing some of the schools under investigation, most of the schools are church-affiliated, which would make the NCAA's intrusion an unconstitutional violation of church-state separation. It is Jackson's position that the NCAA does not have legal authority to dictate standards for schools that already operate under state sanction. He indicated that a number of schools have already contacted his law firm about possibly suing the NCAA: "In a really strange way, this degenerates into a states rights issue, an issue involving separation of church and state, and I can't imagine families of these players and the schools themselves not collectively filing lawsuits against the NCAA over these issues."
The NCAA is most likely going to win this battle. While a constitutional violation here is highly suspect, the merits of such a claim would most likely not be addressed because the U.S. Supreme Court in Tarkanian v. NCAA held that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools:
"UNLV retained the authority to withdraw from the NCAA and establish its own standards. The university alternatively could have stayed in the Association and worked through the Association's legislative process to amend rules or standards it deemed harsh, unfair, or unwieldy. Neither UNLV's decision to adopt the NCAA's standards nor its minor role in their formulation is a sufficient reason for concluding that the NCAA was acting under color of Nevada law when it promulgated standards governing athlete recruitment, eligibility, and academic performance."
Posted By : Rick Karcher
Spelling Bees and Sports Law
Message posted on : 2006-06-02 - 12:15:00
For reasons that escape most of us, spelling bees seem to be sporting events. ESPN not only gives them air time, but if you look at ESPN.com and it's "Spotlight" section, you'll see listed, from left to right, "Spelling Bee, MLB, Page 2, Voices, and Tennis." You'll also see details on this year's Scripps National Spelling Bee, won by 13-year-old Katharine Close of New Jersey.
So why then is a spelling bee a sport? One reason may be that, like sports, spelling bees are competitive matches. And maybe that is why chess and poker tournaments also receive airtime on ESPN and other sports channels. But then again, can't the same be said of almost every life activity? Don't companies compete with each other? Don't artists compete with each other? Don't politicians compete with each other? Don't employees compete with each other? Heck, don't we compete with ourselves? Is everything then a sport? And if so, why doesn't ESPN cover those things?
Of course, we all know the real reason why ESPN broadcasts spelling bees: a lot of people watch them, so they are profitable. And think about why we watch them: we get to see the best of the best kid spellers competing with one another, mano-y-mano, and displaying a skill that almost no one else has. And the contestants are actually quite diverse and egalitarian for a "sport": males and females, of different backgrounds, treated as equal opponents. Even better for TV drama, there's that unmistakable nervous tension in the air--these kids have been preparing their entire lives to be on that stage, and, for better or for worse, they really look the part (and when I see that, I am even more grateful to my parents for letting me play sports and videogames as a kid instead of memorizing word spellings, but then again, I never got to be on that stage or ESPN).
So if we accept that a spelling bee is a sport, what then are some possible legal issues? We are, after-all, a sports law blog, and we don't want to ignore a sport. Here's a few:
1) Conflicts of interest with contestants' parents serving as their agents
We know this applies to some: forcing your kid to stay up all night to memorize words like "spheterize" and "drupaceou" and "tonitruous" because you want to be the parent of a spelling bee champion.
2) Age eligibility and spelling bees
What if a 5-year old is the Lebron James of spellers? In the likely absence of collective-bargaining, he may have a case.
3) Collective bargaining between contestants and ESPN over TV revenue
These kids are uniquely smart--if they could somehow band together as a negotiating unit, they might run circles around ESPN's lawyers. However, and at least based on parent interviews, I'd take ESPN's lawyers if the parents are the ones banding together.
4) Emancipated children (e.g., Gary Coleman; Corey Feldman) who become contestants (e.g., neither Gary Coleman nor
Corey Feldman but someone else)
Now the world don't move to the beat of just one drum. What might be right for you, may not be right for some.
Posted By : Michael McCann
Antitrust Authorities Weigh in on Italian Soccer Scandals
Message posted on : 2006-06-02 - 09:57:00
In an interesting development in the Italian soccer scandal, about which I blogged here, the country's antitrust regulators appear poised to get involved. Here's part of the BNA story: ROME--Italy's antitrust authority on May 25 weighed in on the nation's ever-growing soccer scandals and called for widespread changes in the way players and agents operate.
The announcement from the Autorita Garante della Concorrenza e del Mercato is an unusual one because it doesn't mandate specific action or sanction anyone or any organization. The four-week-old scandal, which involves charges of game fixing and illegal betting, has so far resulted in charges being filed in around a dozen criminal and civil cases. But this is the first time a regulator has weighed in on the issue.
The authority noted that it had conducted a fact-finding inquiry that shows many cases in which agents represent players in negotiations with clubs in which the agent has an interest--either financial or because of family members in key posts.
"It is believed that such relationships can prevent the market from functioning correctly," a spokesman for the authority told BNA. "We call on the national football federation to change the way these rules work."
The authority also suggested elimination of the agents' register, reduction of penalties for players who quit contracts with agents, and creation of incentives to create more competition between agents.
What's interesting about this, from a comparative perspective, is that in the few American cases where an agent has also had an interest in the team with which a client was negotiating (namely, Detroit Lions v. Argovitz, 580 F. Supp. 542), similar conflicts have been addressed as breaches of fiduciary duty, not antitrust violations. Of course, the desire of the regulators to get involved may have more to do with the publicity the scandal has attracted than the merits of the antitrust claims.
Posted By : Geoffrey Rapp
Should Pro Teams Have Religious Identities?
Message posted on : 2006-06-01 - 10:12:00
Spurred by a story on ESPN radio based on this USA Today piece about the Colorado Rockies' efforts to promote Christian values among team mebmers, there is an interesting conversation developing about the business and legal aspects of religious affiliations for pro teams at Prawfsblawg. According to USA Today, "On the field, the Rockies are trying to make the playoffs for the first time in 11 seasons and only the second time in their 14-year history. Behind the scenes, they quietly have become an organization guided by Christianity — open to other religious beliefs but embracing a Christian-based code of conduct they believe will bring them focus and success."
Former Rockie (now Giant) Mark Sweeney: "...I've never been in a clubhouse where Christianity is the main purpose. You wonder if some people are going along with it just to keep their jobs. Look, I pray every day. I have faith. It's always been part of my life. But I don't want something forced on me. Do they really have to check to see whether I have a Playboy in my locker?"
UPDATE: Michelle Malkin, who thinks the Rockies' move is "refreshing", reports that some players have been backing away from the USA Today story.
UPDATE #2: On a related topic, see this story from Friday's New York Times, which reports on a development my colleague Howard Friedman covered a month ago (minor league football teams' efforts to target fans of particular religious traditions through "Faith Night" promotions).
Posted By : Geoffrey Rapp
Trial Date Set for Celtics' Tony Allen
Message posted on : 2006-05-31 - 23:31:00
Posted By : Michael McCann
Armstrong Cleared of Doping...Sort Of
Message posted on : 2006-05-31 - 15:16:00
It's been widely reported today that cyclist Lance Armstrong, to be blamed for starting the rubber bracelet fad, has been cleared by Dutch lawyer Emile Vrijman of charges of doping in connection with the 1999 race. Armstrong has taken Vrijman's findings as a sign of his absolute innocence, although Vrijman's findings actually seem a bit more cautious. Vrijman concludes that the lack of a "confirmation" test rendered the lab work on Armstrong's samples insufficient from a procedural perspective. That is to say, Vrijman doesn't seem to have concluded that Armstrong's samples were free of EPO, just that the procedures weren't sufficient to make a case for a doping violation. I look forward to reading Vrijman's report, which I haven't been able to find on-line so far.
The weirdest thing about this story is the press release issued by the International Cycling Union (UCI), which hired Attorney Vrijman. Here's their take: "The international Cycling Union has learned with great surprise de (sic) declarations conveyed to the Dutch press by Mr. Emile Vrijman, independent investigator within the frame of the urine sample analysis during the 1999 Tour de France case. The UCI firmly deplores the behaviour of Mr. Vrijman, who has prematurely voiced, offending the agreements that foresaw that all parties implied would be informed before any public comment on the report content would be done."
Maybe "deplores" has a different connotation in Dutch than in English? This seems a rather strong statement to make about one's own investigator. And UCI, how about hiring someone who speaks English to proof de press releases from now on? My Dutch sucks, and that's why I don't post on de blog in that language.
UPDATE: The full report is now on-line at the UCI web site.
Posted By : Geoffrey Rapp
NPR on New Jersey High School Drug Testing
Message posted on : 2006-05-31 - 09:37:00
On Monday, the NPR show All Things Considered had a nice feature on New Jersey's new random drug testing plan for all high school athletes, which will take effect next fall. You can listen to the story here. There are some good stories about the new plan here and here as well as a post by Guest Contributor Jennifer Wieland here. The NJSIAA has now released the list of 80 substances targeted by the test.
To find out what New Jersey high school kids think (including comments such as “Drug testing the students isn't reasonable unless you see that student scratching his/her neck too long 'cause fiends shouldn't be participating in extracurricular activities feel me,� by Newark's Manny P.) you can go here.
The ACLU thinks the plan is “really poor public policy,� but appears unlikely to mount a challenge because, as Rutgers-Newark law professor Doug Husak observes, the chances of obtaining judicial relief are “very remote.�
Posted By : Geoffrey Rapp
Does he need a warrant for that jump hook?
Message posted on : 2006-05-30 - 17:21:00
The New York Post's Page Six reports on an interesting sideline developed by the Miami heat center who we might as well start calling Deputy Diesel: helping U.S. Marshals arrest child pornography offenders. According to the Post, "The 7-foot Miami Heat center has helped make 30 busts in his crusade against kiddie-porn pervs. 'I do not have to run after the people or tackle them. They always surrender peacefully,' Shaq [said]. 'And I'm never afraid. When I arrive, they are really already under arrest.'" Hat tip to the Huffington Post.
Shaq's new federal gig is a supplement to his previous part-time work as a reserve police officer.
Posted By : Geoffrey Rapp
Minor League Umpires to End Strike
Message posted on : 2006-05-30 - 17:08:00
Minor League umpires, who had been on strike and rejected a previous deal, approved the latest contract today. CNNSI has the story here; I have earlier post on the strike here and here.
Posted By : Geoffrey Rapp
Bagwell Insurance Dispute Litigation Documents
Message posted on : 2006-05-30 - 10:06:00
The Jeff Bagwell insurance coverage litigation complaint & answer are on-line at SABR's invaluable Business of Baseball site. See earlier posts on this dispute here and here.
Posted By : Geoffrey Rapp
130 Teams in the NCAA Tournament? What's Wrong With That?
Message posted on : 2006-05-30 - 07:30:00
Vito Forlenza, a sports writer for Comcast.net, wrote a column last week concerning recent proposals to expand the NCAA tournament beyond the current 65-team field ("130 Teams in the NCAA Tournament? That's Just Wrong"). The National Association of Basketball Coaches (NABC) and the Atlantic Coast Conference each have recently expressed support for expansion and both are prepared to increase the pressure on the tournament committee to address the issue when committee members convene for a weeklong meeting next month. The proposals range from expansion to 68 teams, to 80 teams, and to even doubling it to 130 teams! Of course, implementation of any plan would be subject to NCAA approval.
Clemson coach Oliver Purnell, who was recently named president of the NABC, favors expansion to 130 teams:
"Let's say you're at 115 teams. You're being done a favor to be let in, but it ensures that nobody deserving gets left out. What's wrong with making sure the top 100 teams in the country are rewarded with going to postseason play? One more weekend doubles the tournament. ... Man, the excitement--you wouldn't be able to measure it."
However, Forlenza argues that expansion would be an increased burden on the student-athletes:
"What you wouldn't be able to measure is the added strain it would put on the players. The current tournament already lasts three grueling weeks with most teams coming off a week of conference tournaments. All of this postseason play follows a three-and-a-half-month regular season. ... The coaches and conferences don't care. Just making the tournament takes some heat off coaches who are always under intense pressure to win--so of course they favor expansion. And just making the tournament increases revenue for most schools and conferences in so many different ways--so of course they favor expansion. ... If the NCAA allows the tournament committee to cave in to these forces and expand teams' already inflated schedules, the governing body needn't pretend its players are amateurs anymore. I don't want to hear about sluggish graduation rates. I don't want to hear about academic scandals. I don't want to hear about coaches' increasing power on college campuses. I don't want to hear about the overarching virtues of intercollegiate athletics. In fact, I don't even want to hear about players' majors, their GPAs, or how so many of them will turn professional in something other than sports. Because when these kids are playing half an NBA season, they might as well already be professionals."
My second thought was that antitrust is no longer a concern to the NCAA with expanding the tournament, now that it owns the rights to the NIT tournament as a result of the settlement reached last summer (which extinguished the antitrust lawsuit brought against the NCAA by the NIT tournament organizers). So it's definitely possible that we'll see some sort of expansion of the tournament, especially
if it means additional revenue to schools and conferences.
Posted By : Rick Karcher
Gilbert Arenas on Arrest Immunity for NBA Players
Message posted on : 2006-05-29 - 13:54:00
This needs no comment, only an appreciation for those who live in The Bizarro World:
Gilbert Arenas and Awvee Storey, both of the Washington Wizards, have been arrested on charges of disobeying police.
According to police reports, Storey was blocking traffic in the middle of a busy street in Miami Beach when an officer told him to get back to the sidewalk Saturday night. Storey didn't get out of the street, and the officer arrested him and charged him with failure to obey a command.
Arenas got out of a vehicle and walked toward the arresting officers. According to reports, an officer told Arenas to get back in his vehicle, but he refused, saying he wanted to stand next to his teammate. The officer took Arenas into custody and charged him with resisting without violence.
As Arenas was being arrested, according to reports, he said, "You can't arrest me. I'm a basketball player. I play for the Washington Wizards, and I'm not going to leave my teammate."
"You can't arrest me. I'm a basketball player." Oh, the irony.
Posted By : Michael McCann
Sports Lawyers Association Annual Conference
Message posted on : 2006-05-28 - 19:13:00
The SLA Annual Conference is this week (June 1-3) in Toronto, Canada. The brochure for the three-day event is attached. I am a member of SLA, and the Dean of our law school, Peter Goplerud, is a member of the SLA board of directors and will be presiding the event all day on Friday. All of the panelists are highly-respected in their fields, and the conference attracts the attendance of sports industry people nationwide from law firms, sports agencies, team front offices, professional leagues, players associations, collegiate athletics, and academia. The conference is highly educational, as well as a great networking forum. While I am unable to attend this year due to another commitment this week, I highly recommend the event for anyone interested in entering the sports law field (the conference even concludes with a panel entitled, "Breaking Into the Sports Industry").
Posted By : Rick Karcher
The Mutants are Coming!
Message posted on : 2006-05-27 - 12:35:00
Yesterday afternoon, I snuck away from writing my law review article to catch a matinee of the movie X-Men III: The Last Stand, and I'm pretty sure steroids are old news. The next big thing may well be performance enhancing surgery, but surely, the mutants are coming. Will genetic mutants be eligible to participate in American sports, or international competition? Of course, there are some sensible grounds for excluding some of the X-Men. Wolverine, after all, has both a genetic mutation (quick healing) and a surgical alteration (adamantium fused with his skeletal structure, plus claws). Excluding surgically altered mutants makes sense. Let's just permit natural mutants play baseball and the like. But what is a natural mutant? Does one have to be born a mutant, like most of the X-Men? What about Spiderman, who was not born a mutant? Was his mutation “natural�? Perhaps we could simply require mutants, and their close friends, aliens, to not use their powers while participating in sports? For example, on Smallville Clark Kent was able to play football in high school (quite successfully) without using his powers. Maybe we just need a sensible rule that mutant and alien powers can't be used on the field. But then again, such a rule might be hard to enforce. How can we be sure Clark wasn't using his powers when he engaged in his Vince Younge-esque heroics?
(Attempted) Satire aside, some of these issues may actually be relevant. There are interesting essays on the subject here, here, here and here. Perhaps the most striking story about genetic mutation in sports is that of Finnish Olympic skier Eero Maentyranta. Eero won two gold medals at the 1964 Olympics. Later, the world learned that he had been born with a version of the EPO gene that caused him to produce 25-50 percent more red blood cells than a typical human. Red blood cells distribute oxygen to the body's muscles; his genetic advantage gave Eero superior aerobic endurance. Synthetic EPO is of course banned by the World Anti-Doping Agency; should a genetic mutant like Eero also be excluded? Can we draw a distinction here between a “natural� mutant and the recipient of gene therapy?
Of course, one might argue that all professional athletes are genetic “freaks,� in the sense that their combination of strength, speed, agility and hand-eye-coordination is well above the mean characteristics of our species over the course of human history. Some skills may be learned, but there are very few professional athletes who can't claim at least some combination of natural “genetic� gifts.
Any conflict between this post and my earlier post on the irrelevance of evolutionary biology is entirely intentional.
Posted By : Geoffrey Rapp
Agents Who Bully NBA Mock Draft Websites: "Don't Post That!"
Message posted on : 2006-05-26 - 20:33:00
DraftExpress provides mock NBA drafts and background information/observations on prospective draft picks. I read it regularly, just as I read NBA Draft Net and Chad Ford's ESPN draft website regularly--they are well-written and informative.
In its latest mock draft, DraftExpress predicts that LSU freshman Tyrus Thomas will be taken 7th overall, by the Boston Celtics. The prediction is surprising, as most other mock drafts have Thomas going 2nd or 3rd.
But what's surprising to some is apparently offensive to others, and specifically Thomas' agents, Brian Elfus and Mike Siegel. They rescinded an invitation to Jonathan Givony, President of DraftExpress, to attend a private workout of Thomas, telling Givony in a text message that they are "not happy with [DraftExpress] having Tyrus 7th," and that DraftExpress "needs to adjust that ASAP." To his credit, Givony responds:
DraftExpress never has and never will sacrifice our journalistic integrity by bowing down to demands of agents. We cannot allow our site to be manipulated in such a way that will hurt our credibility and detract from the many people who visit us to read our honest and professional opinion. If it's at all possible to get access to a workout and do our job objectively the way our visitors have become accustomed to in the past, we will always jump on the opportunity.
I wonder what Tyrus Thomas thinks about all this? His agents are trying to strong-arm those who run mock draft websites? Most clients probably wouldn't perceive that as beneficial to their draft prospects or as a good use of their agents' time. They may also begin to wonder about how confident their agents are in them.
But to play Devil's Advocate, Thomas' agents would probably argue that NBA general managers are influenced by these websites, and that exerting such suasion thereby benefits their clients. But then again, even if these websites are influential--a questionable assumption, to say the least--ill-advised strong-arm tactics in text messages are never recipes for success. One of the drawbacks of test-messaging, even more so than e-mail, is that it can encourage hasty, not-well-thought-out correspondences. I think we see that here. At least I hope so.
Posted By : Michael McCann
Boston Bruins Hire Sports Lawyer Peter Chiarelli as General Manager
Message posted on : 2006-05-26 - 12:29:00
The Boston Bruins are set to hire Attorney Peter Chiarelli as their new general manager. Chiarelli, 41, has been assistant general manager of the Ottawa Senators. He has an interesting background for those who aspire to front office jobs. In 1987, he received a B.A. in economics from Harvard, where he was captain of the Crimson hockey team. After college, he played pro hockey in Europe and then returned to become a law student at the University of Ottawa Law School, from where he graduated in 1993. After law school, he was a player agent, and he represented a number of hockey players in contract negotiations.
In 1999, he shifted over to management, and was hired by the Senators as their director of legal relations. Over the next five years, he impressed the Senators with his hockey insight, and was promoted to assistant general manager in 2004. As assistant G.M., he worked on contract negotiations, salary arbitration, player transactions, and personnel matters. In other words, he took a "legal job" with the Senators and morphed it into a player personnel job, and he's now the G.M. of the Boston Bruins. Granted, Chiarelli had a distinguished collegiate career in his sport and he played it professionally, but perhaps his story is an example of how one can use a law degree to become a player agent and also to get into a front office and from there develop an expertise in player personnel matters.
For Bruins fans' reaction to the hiring, check out HFBoards.
Posted By : Michael McCann
Do Colleges Need “Pregnant Athlete� Policies?
Message posted on : 2006-05-26 - 11:41:00
For anyone with an interest in college athletics, Amy Rainey's “What Athletes Can Expect When They're Expecting: Many colleges are ill prepared for pregnant athletes—and some players suffer as a result,� in this week's Chronicle of Higher Education (May 26, 2006) is worth a read.
The story highlights the potential legal exposure for schools that don't have pregnancy policies for athletes. One story is that of Tara Brady, a student at Sacred Heart University in Connecticut, who sued her former basketball coach for discrimination, claiming that she was told to “go home . . . because her pregnancy would be a ‘distraction' to the team.� As Rainey's article reports: “According to the lawsuit, Ms. Brady had requested a ‘medical redshirt,' a status like that given to injured athletes, to allow her an additional year of eligibility. But she claimed that her coach never redshirted her, and that the university revoked her scholarship.� The University settled with Ms. Brady for an unspecified sum. This type of claim is likely the most common schools without pregnancy policies would face – but the article hints at what could be an even more disastrous result for a university (from a damages perspective): pregnant athletes who are unaware of the effect their status will have on their scholarships who as a result hide their pregnancies (and fail to seek prenatal care), or seek abortions.
Elizabeth Sorenson, Faculty Athletics Representative (FAR) at Wright State University in Dayton, has proposed the NCAA develop a pregnancy policy. Professor Sorenson hosted an on-line discussion on the issue yesterday, which can be found here. In a nutshell the WSU policy calls on athletes to notify their coaches of pregnancy status, to refrain from withdrawing from their sport, and establishes a support group to counsel a pregnant athlete and oversee continued participation (I've e-mailed Professor Sorenson for a copy of the policy and will update this post once I've had a chance to look at it). The NCAA has not acted on her proposal, according to the Chronicle.
Such a policy seems like a good short term legal strategy to avoid potential liabilities. In the long run, however, might adopting a “maternity-leave�-like policy for pregnant college athletes start to make it difficult to argue that the “economic realities� of college athletics are not those of an employer-employee relationship? As a result, might college athletes be able to demand the right to unionize, and / or get paid? Of course, that might be a good thing, as Greg argues here.
Posted By : Geoffrey Rapp
Indiana Basketball Embraces Recruiting Hurdles
Message posted on : 2006-05-26 - 06:36:00
The NCAA Committee on Infractions yesterday issued a ruling that: (1) bans new Indiana coach Kelvin Sampson from calling recruits and visiting them off-campus for one year, (2) requires Indiana to adopt the restrictions Oklahoma placed on Sampson, where he coached before Indiana hired him earlier this year, and (3) disciplined Oklahoma by adopting its self-imposed sanctions.
Sampson was identified as making 233 of 577 "impermissible" phone calls while at Oklahoma from 2000-04, in which the NCAA concluded those calls constituted a recruiting advantage. Of 17 recruits who received impermissible calls, five enrolled at Oklahoma and another signed a National Letter of Intent to attend the school. The infractions committee chair, Tom Yeager, noting that some of the violations were committed while Sampson was president of the National Association of Basketball Coaches (NABC) and presided over an Ethics Summit, had some harsh things to say about Sampson:
"The former head coach created and encouraged an atmosphere among his staff of deliberate non-compliance, rationalizing the violations as being a result of 'prioritizing' rules. The former head coach [who, it is reported, acknowledged the violations but did not take them seriously compared with material inducements to recruits] preferred to think of what he and his staff were doing as 'hard work' rather than cheating. At a time when the NABC identified impermissible phone contact as a serious issue and the organization was calling on its membership to be accountable, the former head coach and his staff were engaged in a pattern of willful and significant recruiting violations."
Jeff Rabjohns of the Indianapolis Star summarized the penalties imposed on Sampson ("IU's recruiting faces hurdles"):
Things he can't do:
• Call recruits on the phone.
• Attend summer recruiting camps such as Nike's in Indianapolis or tournaments such as Reebok's in Las Vegas that typically feature hundreds of top prospects in one place.
• Attend a recruit's game.
• Make a home visit to a recruit.
Things he can do:
• Take phone calls from recruits.
• Initiate text messages, instant messages, e-mails or letters with recruits.
• Talk with players during on-campus recruiting visits.
In today's highly competitive recruiting environment, being visible and seen is extremely important. According to Rabjohn, "The biggest practical impact of the NCAA penalties announced Thursday against the Indiana University men's basketball coach is that Sampson won't be able to personally show
recruits how interested the Hoosiers are." Electronic messaging is simply not a replacement for in-person appearances.
Is IU underestimating the impact of yesterday's ruling? But aside from the practical impact on Sampson's ability to effectively recruit, which Indiana is willing to accept, does it seem odd that IU would hire a coach knowing at the time that he willfully violated NCAA recruiting rules and knowing that NCAA sanctions would soon be imposed, and also tell the world that he's a man of "highest integrity"?
Posted By : Rick Karcher
Linking Casinos to Olympic Bids
Message posted on : 2006-05-25 - 16:45:00
Chicago attorney Tim Epstein, who in January blogged here on Chicago's Olympic bid, had a related letter to the editor published by Crain's Chicago Business this week. Crain's shortened it quite a bit, but here is the original:
Could Gaming Help Chicago become an "Olympic" Kind of Town?
Is 2016 Chicago's best chance at getting the Olympics since 1904? The 1904 games were given to Chicago, then taken away and given to St. Louis to coincide with the World's Fair. While the U.S. Olympic Committee has yet to make any decisions on whether an American city will even be nominated to host the 2016 Games, Jim Scherr, CEO of the U.S. Olympic Committee, stated in a press conference in Chicago that “[Chicago would] not only be an excellent host for an Olympic Games, but would have an opportunity to be a successful bidder if it chose to bid and if we chose to run.�
The biggest impediment to the Windy City's bid: not having an appropriate venue for Opening and Closing Ceremonies (labeled as a “non-starter� by U.S. Olympic Committee Chairman, Peter Uberroth). Hosting the Olympics requires a venue that would seat at least 80,000 people (the recently renovated Soldier Field only holds 61,500). While the Mayor's exploratory committee would seek out both financial and physical aid in hosting the Summer Games from other cities, states and universities, the “gem� of the ceremonies would most certainly be in Chicago.
The idea has been circulated of possibly bringing in a second NFL franchise to Chicago that would play in a venue constructed for said team's home games as well as for use in the hosting of the 2016 Games. While the idea of Chicago supporting a second NFL team seems daunting, there is precedent (the Cardinals played in Chicago and the greater metropolitan area until 1960). However, with the Saints staying in New Orleans and Los Angeles next in line for a franchise, maybe City Hall should look to the Steel City for inspiration.
Mellon Arena, home to the Pittsburgh Penguins, is run down as is the surrounding neighborhood, which has great accessibility to downtown Pittsburgh. Mario Lemieux and the rest of the ownership group had threatened to leave the area, but recently announced partnering up with Isle of Capri casinos. If Isle of Capri, which owns fifteen casinos throughout the US, Europe, and the Bahamas, secures the state license to operate a Pittsburgh casino, it would build the casino in the lower Hill District, with a new facility for the Penguins in the same complex (Isle of Capri along with the Penguins is pledging $290 million for the arena). Along with this is a plan for redevelopment of the area. Of note, the Penguins CEO, Ken Sawyer, recently stated that the only way that the Penguins would certainly stay in the area is if “Isle of Capri wins [the license].�
Along with Isle of Capri, two other groups have entered into the bidding process for the Pittsburgh license, PITG Gaming LLC (headed by Don Barden, and supported by Smokey Robinson and Jerome Bettis) and Forest City Enterprises (Harrah's). PITG has committed $7.5 million a year for 30 years under the alternative plan submitted by Pennsylvania Governor Ed Rendell. Forest City, supported by Franco Harris, is committed to the Governor's plan only if the Penguins promise to stay in Pittsburgh.
Could the Pittsburgh proposals not be models for Chicago? It is no secret that Mayor Daley wants a casino in Chicago, so why not combine the ambitions for gaming with The Games? If the facility had a retractable dome, such a venture would not only provide Chicago with a venue necessary for host city consideration, but a site to host events like the Super Bowl, the Final Four, and a college bowl game, all consistent with the Olympic spirit for use after the games (a factor the International Olympic Committee looks to in choosing a host city), not to mention convention space. As to the presence of a casino being anathema to the Olympic spirit, London, which recently won its bid to the host the 2012 Olympic Games over New York City and Paris, has twenty-five casinos.
Timothy Liam Epstein is an attorney with O'Hagan, Smith & Amundsen in Chicago. He is a regular contributor to the national Sports Law Blog. He recently authored, “Splinters from the Bench: Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time,� published by the University of Virginia School of Law. He is currently working on an article regarding the effects of multipliers and other measures in high school sports.
Tim raises a good point about the presence of casinos in London, and how those casinos did not preclude London from obtaining the 2012 Olympic Games. As to his proposal for a retractable dome in Chicago, it is interesting and doubtlessly controversial. But as he notes, perhaps it could have important future uses, such as in trying to attract another NFL franchise to Chicago or hosting a super bowl.
Posted By : Michael McCann
How 'Bout Them Tigers!
Message posted on : 2006-05-25 - 10:35:00
What's going on with the Detroit Tigers this year? It's not very often that you see a team go from "worst to first". As of right now, they have the best record in all of baseball (32-14). They also currently rank 1st in team ERA, 2nd in team slugging percentage, and 7th in team batting avg.
I'm a Detroit native and, up until two and a half years ago when I moved to sunny Florida, I lived there my entire life. Living in Florida, I'm sort of out of the loop and unable to closely follow and watch the Tigers. I know we're only about 1/3 of the way through the season, but after a string of many consecutive losing seasons, Detroiters definitely have something to get excited about. So all of you Tigers fans, I'm curious to know WHY they have the best record right now and are among the league leaders in pitching and hitting.
Which of the following is/are contributing to the Tigers' success this year?
- The players had a meeting in spring training and decided that they would prefer to play like the '97 Marlins instead of the '84 Tigers
- The draft has finally produced some talent this year at the major league level
- Releasing Carlos Pena
- Signing Kenny Rogers
- Kenny Rogers decided that it's better to strike out batters than camera men
- It's that extra $13,520,866 in payroll this year
- The batters are on steroids this year
- The pitchers are on steroids this year
- GM Dave Dombrowski is on steroids this year
- Only Brandon Inge is on steroids this year (he has 11 home runs!)
Posted By : Rick Karcher
Could the NBA Ban Timeouts?
Message posted on : 2006-05-25 - 09:17:00
At Slate, "Sports Nut" Josh Levin argues that the NBA should ban time outs. According to the Nut, timeouts are "despicable," "indefensible" and a "buzzkill." I'm not particularly concerned with the merits of this proposal (which, other than employing more coarse language, is not terribly original, see here and here) Instead, I'm interested in its legal feasibility. Particularly, would the NBA have to bargain with the players' association before reducing or eliminating timeouts? Are timeouts "wages, hours, and working conditions", and therefore a mandatory item of collective bargaining? These are questions Rick posed here about the dress code. (The distinction between mandatory, permissive, and illegal subjects of collective bargaining also matters in jurisdictions that follow the Mackey case regarding the scope of the non-statutory labor exemption from antitrust law, as Rick explains here).
The interplay between collective bargaining and “rules of the game� is a complicated one. Timeouts, of course, seem a bit like "hours." Of course, banning time outs might actually reduce the hours that an NBA player spends “in the building.� Still, something that decreases hours at work would seem to "concern" hours. Similarly, to the extent that eliminating timeouts changed the “conditions� under which NBA games were played (by making the end-game a more continuous, high-paced experience) such a move would seem to fall into the mandatory category. I imagine that many of the more hulking and less limber NBA players would be concerned that a timeoutless 4th quarter would involve a higher risk of injury, since play would necessarily become more chaotic and unpredictable.
The leading sports law casebooks pose some interesting hypotheticals about the mandatory vs. permissive distinction in connection with rules and conditions of play. For example, the Mitten/Davis/Smith/Berry book Sports Law and Regulation: Cases, Materials & Problems offers: the placement of the 3-point line in basketball; the height of the pitcher's mound in baseball; the dimensions of a hockey rink or baseball field; and the status of the DH rule in baseball (page 576). The Weiler/Roberts book Sports and the Law: Text, Cases & Problems offers: the DH rule; institution (or elimination) of overtime to break ties in hockey or football; installation of artificial turn in football or baseball parks; hockey's rule about wearing helmets during games; and the use of instant replay (page 327).
Posted By : Geoffrey Rapp
Duke Women's Lacrosse Team: Confusing "Innocent" with "Presumed Innocent"
Message posted on : 2006-05-24 - 20:20:00
The Duke women's lacrosse team announced today that its players will wear sweatbands with the word "innocent" on them. They are doing so to signify solidarity with the men's lacrosse team, whose season was canceled in the wake of two (now three) of its players being arrested on sexual assault charges. A junior on the women's team, Leigh Jester, said of the men's team, "they don't really have a chance to play their season, which is a shame."
We've discussed the scandal surrounding the men's team at-depth (5/3/2006; 3/29/3006). And at this time, we don't know what happened, and we probably won't know for some time, if ever. The only people who presumably know are the Duke men's lacrosse players and the woman who contends that she was sexually assaulted.
But what do "we"--meaning, you, me, the Duke women's lacrosse team, and just about everyone else--know? We know that three players have been arrested, and we know that a grand jury, through indictments, has concluded there is probable cause that they committed sexual assault. But we also know that until the players have been found guilty or plead guilty, they are presumed innocent.
But is a presumption of innocence the same thing as "innocent," as the sweatband will assert? No. One's legal status changes upon a grand jury indictment--there are often restrictions on travel, one can be detained (jailed) while awaiting trial, assets can be restricted etc. Just ask anyone who has been indicted whether they feel "innocent." Moreover, in light of comments by some of the women players, it's not entirely clear--and probably pursposefully so--what they mean by "innocent."
Now, I understand solidarity and the "rally around the flag effect"--people feel they have to defend the institution that they are a part of when it is called into question, and we all do it. We tend to think of ourselves are part of various groups and associations, and it is why groups tend to partake in behaviors that individual persons would never partake in--for a good example, take a look at Geoff Rapp's post last week on hazing and women soccer players at Northwestern University. I also understand that the Duke women's lacrosse players are probably friendly with the men's players, and friends often defend friends in crisis. But the fact is, the Duke women's lacrosse players seemingly have no idea whether their friends on the men's team are guilty or innocent of an alleged crime, and they don't seem particularly objective in at least superficially asserting that they know better than the rest of us.
Posted By : Michael McCann
Jeb, Not Condi, as NFL Commish?
Message posted on : 2006-05-24 - 11:36:00
Last week, I reported on speculation that Secretary of State Condi Rice was closer to the NFL Commish's office. Now, it seems, no-longer "private conversations" have been afoot involving Florida's Governor Jeb Bush. Apparently, Steelers Owner Dan Rooney is conducting the search.
UPDATE: According to an AP wire story from yesterday, which the NFL put on its own web site, "The leading candidates for Tagliabue's job, which must be approved by 22 of the 32 teams, continue to be Roger Goodell, the NFL's chief operating officer; Atlanta general manager Rich McKay and Baltimore president Dick Cass. One outside name that has cropped up recently has been Michael Powell, former chairman of the Federal Communication Commission and the son of Colin Powell, the former secretary of state. Also on the list are league officials Jeff Pash, Eric Grubman and Joe Browne, as well as several club officials and an unknown number of potential candidates from outside the NFL." The NFL also appears to confirm the pursuit of Bush.
Posted By : Geoffrey Rapp
Double-A Team to Host Frivilous Lawsuit Night...Seriously
Message posted on : 2006-05-24 - 11:15:00
The Altoona Curve, a Double-A Pirates affiliate, will host a "Frivilous Lawsuit" night on July 2. The team's press release is here. Hat tips to the Journal's Law Blog and Overlawyered.
Posted By : Geoffrey Rapp
Marquette to Host Labor & Employment Scholarship Mini-Conference
Message posted on : 2006-05-24 - 11:06:00
Marquette's law school will host a Colloquium on Current Scholarship in Labor and Employment Law on Friday, October 27, 2006. The conference web site and call for paper presenters is here. Given the overlap between sports law and labor / employment law, hopefully some of our readers and contributors will submit papers and be represented in October. Conference co-organizer Scott Moss explains the genesis of the conference (and makes a dubious prediction about the Brewers' World Series prospects) here.
Posted By : Geoffrey Rapp
What's in a Number? Apparently Tax and Contract Issues
Message posted on : 2006-05-24 - 07:50:00
Twelve days ago, I discussed Reggie Bush's challenge to a long-standing NFL rule requiring running backs to wear a number in the 20-49 range. Yesterday, the NFL's competition committee -- not surprisingly -- rejected his request that he be permitted to wear No. 5. A release by The Associated Press (reprinted in USA Today) noted that, since 1973, the only major change to the NFL rule was made last year, when receivers were given permission to wear numbers in the teens because teams were running out of numbers in the 80s due in large part to an increase in receivers and tight ends on rosters.
Interestingly, as noted in the press release, a player will often change a number to accommodate another player, often selling the rights. For example, New York Giants punter Jeff Feagles traded No. 10 to Eli Manning in 2004 in exchange for a family vacation, and then also traded No. 17 to Plaxico Burress last year in exchange for an outdoor kitchen addition on Feagles' home. Clinton Portis bought No. 26 for $40,000 from safety Ifeanyi Ohalete when he joined the Redskins. Portis paid $20,000 up front but declined to pay the rest after Ohalete was cut by the Redskins and picked up by Arizona. Ohalete then sued Portis for the balance and they ended up settling the matter for $18,000.
This is what I love about sports law -- something that seems so innocent, like one player simply permitting another to wear a jersey number, amounts to some complex legal issues. For example, what are the tax consequences on the exchange? In order to determine the taxable gain on the sale, the seller's basis needs to be determined. What's the selling player's basis in his number? Is it a cost basis? - which, presumably would be zero in which case the entire benefit received would be taxable. Or could the selling player argue that this transaction is nothing more than a non-taxable gift from the purchasing player (i.e. the payment was made out of "detached and disinterested generosity")?
Also, there are some interesting contract and property issues involved here. Why does a player even have the legal right to sell a jersey number to another player in the first place? Does the club own the rights to the numbers, and have the continuing exclusive authority to grant and condition the use of the numbers by the players? Is this a sub-license arrangement in which maybe the selling player (the licensee) needs to first get permission from the club (the licensor)? Assuming a player even has a property right in his number that he can sell, why would Ohalete have any further rights to his number with the Redskins after he was cut by them?
Posted By : Rick Karcher
Chief Justice of the Sports Metaphor
Message posted on : 2006-05-23 - 11:02:00
In Brigham City v. Stuart, released earlier this week, the Supreme Court held that police officers may enter a home without a warrant if they have an objective basis to believe an occupant is seriously injured or imminently threatened with such injury. Writing for the majority, Chief Justice Roberts explained, "The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.�
Apparently, we can expect many more sports metaphors from Chief Justice Roberts, the man who gave us "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."
Hat tip to the Journal's Law Blog.
Posted By : Geoffrey Rapp
Does the NFL Have the Best IP Cops?
Message posted on : 2006-05-23 - 10:51:00
At the Freakonomics blog, Steven J. Dubner wonders at the absence of Washington Redskins memorabilia in a gift store into which he wandered in Washington, DC. Here's his story: "Today, I went to a huge souvenir store in D.C. . . . There was a great variety of very very cheap shirts and hats sporting the logos of the F.B.I., the C.I.A. . . . etc. But there didn't seem to be a single item of Washington Redskins paraphernalia. I asked at the counter . . . did the clerk think that, perhaps, I was from the N.F.L.'s licensing division and was trying to find out if she had any unlicensed Redskins stuff? It didn't seem to make sense that the store wouldn't carry any Redskins paraphernalia—they had everything else you could imagine, including shirts for the Washington Nationals and the Georgetown Hoyas. . . . is it possible that stores like this (and/or their suppliers) are not afraid of selling knockoff U.S. Government merchandise or knockoff MLB merchandise but that they are afraid of selling knockoff NFL merchandise? Is it possible that the N.F.L. is more feared, even in Washington, than the U.S. Government?"
The Wonkette thinks the store may have just found the name "Redskins" offensive.
Posted By : Geoffrey Rapp
Study Indicates Losing Soccer Games Hurts Economies
Message posted on : 2006-05-23 - 09:37:00
A new economic study has demontrated that "losses in soccer matches have an economically and statistically significant negative effect on the losing country's stock market." Here's the paper's abstract: "This paper investigates the stock market reaction to sudden changes in investor mood. Motivated by psychological evidence of a strong link between soccer outcomes and mood, we use international soccer results as our primary mood variable. We find a significant market decline after soccer losses. . . . This loss effect is stronger in small stocks and in more important games . . . . We also document a loss effect after international cricket, rugby, and basketball games."
Now that's what I call moneyball.
Hat tip to Conglomerate.
Posted By : Geoffrey Rapp
Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players
Message posted on : 2006-05-23 - 09:02:00
With the Major League Baseball amateur draft to be held in two weeks (June 6-7), Alan Schwarz of Baseball America has a very interesting interview with Texas Rangers first baseman Mark Teixeira. In the interview, Teixeira recalls when the Boston Red Sox drafted him in the 9th round of the 1998 MLB Draft, as well as communications between the Sox and Teixeira prior to the draft. Like many of the draft's best prospects, Teixeria, then 18, was represented by super-agent Scott Boras. After a very contentious negotiation with then-Red Sox GM Dan Duquette, Teixeria declined to sign, feeling low-balled by Duquette's offer of a $1.5 million signing bonus, and instead chose to attend Georgia Tech. Three years later, the Texas Rangers selected him in the 1st Round (5th overall) of the 2001 MLB Draft, signed him to a $10.5 million contract (including a $9.5 million bonus), and he has gone on to become a big league star.
In the interview, Teixeira suggests that the Red Sox sabotaged his draft status by (1) engaging in what he calls "illegal" pre-draft negotiations with his agent; (2) slandering him, albeit privately; and (3) drafting him relatively late (in the 9th round) in order to diminish his superstar prospect reputation. Here is the relevant portion of the interview (with my italics):
Alan Schwarz: The Red Sox offered you $1.5 million before the draft, which was pretty darned fair in 1998.
Mark Teixeira: They said take it or leave it. It was a decent bonus, but it wasn't what we were looking for, and we didn't want to cap our negotiation before the draft even happened. It's unfair and illegal to go to a kid and say, "We haven't drafted you yet, we may or may not draft you, but if you don't take 1.5 we're not going to draft you." What would you say? There's 29 other teams out there--why would I ever cap myself before the draft even happens? It doesn't make any sense. It's unfair to those kids. Say, "Draft me and I'll let you know."
I have a very cynical approach toward the draft. I was naive. It was my first realization to the business in baseball. The Red Sox told everybody that I wouldn't sign, and when it got to a late enough round, they said, "Let's take a flier on him." So they spoiled me for everyone else--the only one that would draft me was them.
First off, I'm not feeling much sympathy for Mr. Teixeira. Any player, of any age, who hires Scott Boras to represent him is clearly not "naive" about baseball "being a business."
Second, I don't buy that the pre-draft negotiations between Boras and the Sox were in any way "illegal" or inappropriate. It's not entirely clear what laws Teixeira thinks the Red Sox broke, but he might be suggesting that the Sox, by telling other teams that Teixeira wouldn't sign for $1.5 million, tortiously interfered with his prospective
relationships with those teams. Or perhaps he believes that the Sox slandered him when talking to other teams, or even that it libeled him by drafting him so late. Even more quixotically, he might think that the Sox bargained in bad-faith by threatening to not draft him unless he acquiesced to a $1.5 signing bonus (oh the horror!) or even--bear with me--that the Sox extorted him (something to the effect of, "Mark, if you don't agree to $1.5 million, we'll make sure that other teams find out about that . . . and we'll do that because we are so evil!"). Alternatively, if Teixeira simply believes that the mere act of pre-draft negotiations by the Sox was illegal, then why was his agent engaged in those same negotiations on his behalf?
The reality is that pre-draft negotiations are common with marquee players. In theory, such negotiations violate MLB tampering rules, but those rules are not enforced for good reason: they enable players to better assess whether they should pack for freshman year or pack for life as a minor-leaguer, and they enable teams to better assess whether it is in their baseball and financial interests to draft a particular player. And to the extent Teixeria or any player is hurt by these pre-draft negotiations, they should blame their agent, not the team that didn't assent to their asking price.
Having said all that, if there is evidence that a team has willfully damaged a player's reputation, either by published words (libel) or spoken words (slander), then a player would have legal recourse. But I suspect that most players don't have that evidence, and are instead just embittered that big league teams didn't think as highly of them as they did of themselves.
Posted By : Michael McCann
The Irrelevance of Evolutionary Biology to Sports and Law
Message posted on : 2006-05-22 - 14:04:00
One of my favorite college classes was Science B-29, Human Behavioral Biology. This venerable franchise (affectionately nicknamed “Sex� by the undergraduate students), long one of the most popular courses at my college, dealt with primate evolution and explored evolutionary explanations for human behavior. Along with a roommate, I even went so far as to nominate one of the course's favorite subjects, the Bonobo chimpanzee, as the football team's mascot. Sadly, the “Angry Pilgrim� was chosen instead.
It was with some interest over the weekend, therefore, that I read blogger Brian Leiter's new essay, Why Evolutionary Biology is (so far) Irrelevant to Law (available here). Leiter and co-author Michael Weisberg make a thoughtful and persuasive case against the use of human behavioral biology and evolutionary psychology in legal scholarship and legal policy-making. The authors commendably explain the occasional philosophical term of art (e.g., “causal etiology,� “ontological parsimony�), such that even a non-scholarly reader can gain something from the piece.
Here's a snapshot of their argument: “[E]volutionary biology offers nothing to law—more precisely, it offers nothing to help with questions about legal regulation of behavior . . . . Only systematic misrepresentations or lack of understanding of the relevant biology, together with far reaching analytical and philosophical confusions, have led anyone to think otherwise.�
The idea that evolutionary biology could come to replace economics as the leading “law and ___� movement always struck me as odd, given how much evolutionary biology and selfish gene theory owe to economics. That is to say, I'm not sure evolutionary biology is really all that much of an “alternative� to the reigning interdisciplinary approach to studying and conceptualizing law. Leiter's essay provides further reasons to doubt the likelihood that any “law and evolution� movement will have legs. This is not to say that genetic science is irrelevant to some pressing legal questions (for example, in putting to rest the notion that race is anything but a social construct, as my colleague Bill Richman argues here), just that evolutionary biology is not sufficiently well developed to offer conclusions about law that have any scientific rigor.
Comments about evolutionary biology occasionally surface in discussions of sports as well. Jimmy “The Greek� Snyder's remarks about African-American athletes are perhaps the most infamous. More recently, Cubs manager Dusty Baker made his own oddball evolutionary observation about African-American and Latino players and their comparative tolerance for hot weather. For any athlete, coach or player thinking of making a comment speciously asserting an evolutionary explanation for some perceived difference among categories of athletes, Leiter's essay is good reading. If the career-destroying effects of such comments aren't enough to deter, Leiter's essay helps show, on an
intellectual level, how little evolutionary biology has to say about current human behavior or how it should be regulated.
Posted By : Geoffrey Rapp
Court Denies Class Certification in NCAA Walk-On Football Players Antitrust Case
Message posted on : 2006-05-22 - 12:52:00
On May 3, a federal district court in the Western District of Washington denied class certification in an antitrust case filed by walk-on NCAA football players challenging limits on the number of scholarships. The case is In re NCAA 1-A Walk-on Football Players Litigation, W.D. Wash., No. C0-1254C (May 3, 2006). The Westlaw cite is 2006 WL 1207915. The plaintiffs in this case had previously survived a motion to dismiss. See 398 F.Supp.2d 1144, available here.
The putative plaintiff class consisted of a subset of those walk-on players from Division I Schools for the 2000-2001 through 2003-2004 seasons (those walk-ons who participated in spring practice with the team, and thus were closest to making the “cut� for a scholarship). The plaintiffs challenged NCAA Bylaw 15.5.5, which caps the number of scholarships for each DI-A school at 85. The plaintiffs claimed violations of Sherman Act §1 and §2 (their complaint is here). The §1 claim alleged that the NCAA operated a classic cartel to exercise monopsony purchasing power and restrict competition in the market for football players, an input market for DI-A college football. The §2 claim asserted that the NCAA were engaged in a conspiracy to monopolize the “big time college football� market.
The court rejected plaintiffs' motion for class certification, explaining, “The facts going to the violation are also identical for each class member. All of the factual and legal inquiries will be the same to establish the relevant market, illegality, characterization of Bylaw 15.5.5 as a horizontal restraint, injury to competition, and the propriety of an injunction. Where the required proof diverges significantly is at the antitrust injury and damages stages . . . .�
The court continued, “[O]nce the existence of an antitrust violation has been fully litigated, the predominance of common issues will fade quickly. . . . The individualized determinations that will be required to prove antitrust injury and damages provide an insurmountable barrier to class treatment.� In a nutshell, the court felt that only some of the plaintiffs would have been damaged, since not all of them would have received scholarship even if the cap on scholarships were lifted. This decision will no doubt be appealed.
Posted By : Geoffrey Rapp
Pitchers in California Can Intentionally Throw at a Batter's Head
Message posted on : 2006-05-22 - 07:02:00
Last month the California Supreme Court decided that all pitches intentionally thrown at a batter's head are "a fundamental and inherent risk of the sport of baseball" (Calif. Supreme Court: Ballplayer Can't Sue for Bean Ball). The plaintiff, Jose Avila, was a junior college baseball player who was struck in the head with a pitch thrown by a pitcher on the opposing team. The plaintiff alleged that the pitcher had intentionally thrown at his head to retaliate for a player on the pitcher's team being hit by a pitch in the previous inning. According to the complaint, his batting helmet cracked and he suffered "unspecified serious personal injuries."
The plaintiff sued the school district, alleging negligent supervision over its pitcher. Regarding this claim, the Court held that the plaintiff assumed the risk of injury. Justice Kathryn Mickle Werdegar wrote for a 6-1 court:
"Being hit by a pitch is an inherent risk of baseball. Pitchers intentionally throw at batters to disrupt a batter's timing or back him away from home plate, to retaliate after a teammate has been hit or to punish a batter for having hit a home run. Even if the Citrus College pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport."
"Thus, the boxer who steps into the ring consents to his opponent's jabs; the football player who steps onto the gridiron consents to his opponent's hard tackle; the hockey goalie who takes the ice consents to face his opponent's slap shots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him."
In terms of whether the beanball in baseball meets the age-old "part of the game" definition for determining tort liability, I think Justice Werdegar is half right. There are some situations when it is part of the game, for example, in order to "protect your teammates" (Justice Werdegar referred to it as retaliating after a teammate has been hit), or when a batter walks off a home run when his team is up by a dozen runs, or maybe when a batter "pops off" in the press about the opposing team or opposing pitcher. However, I think the justice is incorrect that beanballs are part of the game in order "to disrupt the batter's timing" or in order "to punish a batter for having hit a home run". And it is NEVER part of the game, under any circumstance, to intentionally throw at a batter's head (such as was alleged in this case). Throwing a brushback pitch is not the same as intentionally throwing at the head.
But maybe the case was correctly decided after all. At first glance, one has to seriously question whether it is the proper function of tort law to even police beanballs. Assuming that I am correct about the circumstances under which the beanball is and is not part of the game (and assuming the plaintiff can actually prove intent which is always very difficult), should courts be drawing such fine distinctions between permissible and impermissible beanballs? As a policy matter, should the California Supreme Court instead have held that it is acceptable for a pitcher to intentionally hit a batter below the neck, but only if it involves
situation A, B or C?
Posted By : Rick Karcher
Was Barbaro Abused?
Message posted on : 2006-05-20 - 20:21:00
Sadly, Kentucky Derby winner Barbaro broke his leg in the opening of today's Preakness Stakes in Baltimore. My thoughts are with this brave champion. And I pose the following question: Was Barbaro abused? After all, he ran a very tough race just two weeks ago. A human athlete completing the equivalent race -- say, a marathon -- would be permitted to take time off. Nearly all of Barbaro's Kentucky Derby competitors stayed home today (only two showed up to race). Was this champion treated unfairly, just because he was a horse?
Cass Sunstein, one of America's leading legal scholars, has over the past few years joined a chorus of voices calling for greater protection for animal rights. In The Rights of Animals, 70 Chi. L. Rev. 387, he wrote, "[H]orses should not have the right to vote; but they should have a right to good lives for . . . horses." In Standing for Animals, 47 UCLA L. Rev. 1333, he questioned whether animals might or should have standing to sue to vindicate their interest in avoiding suffering. Should Barbaro have been able to sit out, even though he had a chance at the Triple Crown?
Posted By : Geoffrey Rapp
The Real Moonlight Graham: Byron Gettis
Message posted on : 2006-05-19 - 14:42:00
Norm Sanders of the Belleville (Illinois) News-Democrat has an interesting story on Byron Gettis, a 26-year old who will become a freshman at Southern Illinois University Carbondale this fall. (Sanders, "Cahokia Star Finally Gets His Chance," 4/27/2006). Back in 1998, when Gettis was 18-years old and graduating from high school, he signed with the Kansas City Royals organization as a free agent in lieu of accepting a scholarship to play football at the University of Minnesota. However, his contract with the Royals stipulated that the Royals would pay for his college education, if and when he later pursued it. Gettis went on to a successful minor league career, and even reached the big leagues with the Royals for 21 games and 39 at-bats in the 2004 season. He had 7 hits and one RBI, and got to play with Carlos Beltran and Mike Sweeney. But in 2005, he was back in the minors, and then decided to retire from baseball.
This fall, Gettis will take the Royals up on their contractual committment to pay for his college education, and he'll try to make his college football team as a walk-on. Gettis has no regrets. He says of his brief time in the big leagues:
"It was unbelievable. It was probably one of the best and greatest experiences of my life. When you reach your goal that you've dreamed of, it's unbelievable. It was just being part of that brotherhood, having your name on the roll in the big leagues."
Interestingly, and as baseball agent Joe Rosen has discussed and written about, big league teams often include a college education clause in contracts with players who elect to sign out-of-high-school. It's unclear what percentage of players actually exercise that clause, but it's a good reminder that a college education is not a "one-shot-deal" in American life. People can go back to school at any point, so when an extraordinary opportunity presents itself out-of-high-school (be it sports or otherwise), a person doesn't forfeit college by taking advantage of it. And considering that Byron Gettis got to play in the big leagues, even for a very brief and unnoticed time, I suspect he'll have some great stories to tell as a freshman this fall.
Posted By : Michael McCann
How Best To Build A (Sports) Lawyer?
Message posted on : 2006-05-19 - 08:20:00
There's an article in this month's edition of the ABA Journal written by G.M. Filisko, which entails a thought-provoking discussion about how best to prepare and train people to become lawyers ("How Best To Build A Lawyer?"). Filisko notes that, "[f]or years, ideas have been batted around to improve the way lawyers are educated, ranging from allowing apprenticeships to changing bar exam standards to wiping out law school altogether." A few states -- California, Maine, New York, Vermont, Virginia, Washington and Wyoming -- allow students to skip law school in favor of some form of apprenticeship or “reading the law,� which combines self-study and practice under the supervision of an experienced, bar-admitted attorney. While skipping law school altogether probably sounds attractive to many prospective law students, the reality is that it would be difficult to get a job as an attorney because most hiring partners reject such drastic alternatives to obtaining a formal law school education.
But there may be a happy medium somewhere in-between. For example, some of the hiring partners interviewed for the article support the idea of combining a formal law school education with a legal residency (analogous to the medical profession). Here are some of their comments:
- “My general sense is that the first year to two years of law school is important because it really does teach people how to spot and analyze issues and how to construct arguments.� However, he added that he could see “losing the last year of law school and replacing it with practical work.�
- A residency program could help law firms in hiring. "If you bring students in for an extended apprenticeship, you get a better look at them.�
- A residency program could improve attorney retention. “It may result in less movement by people from one area of the law to another or from one firm to another.�
Internships are a great way to accomplish, on a more limited scale, many of the same goals and objectives of a formal legal residency program. While law schools across the country are establishing more concentrations with specialized curriculums in various fields of law, it is vital that students in these programs have the opportunity to not only apply what they are learning in the classroom, but to also begin making contacts within the particular industry while in law school. I think generally law schools could do better in this regard.
As a director of a sports law concentration, I make internship placement a priority because internships afford students a tremendous opportunity during law school (1) to gain practical experience in the sports industry, (2) to give sports industry employers a "look-see" which may lead to future employment for the student with that particular employer or with another employer, and (3) to help students determine early on which fields within the sports industry interest them most. Internships can also help to alleviate senioritis.
Posted By : Rick Karcher
Northwestern Suspends Female Soccer Team Over Hazing Pics
Message posted on : 2006-05-18 - 16:15:00
Northwestern University has suspended its female soccer team pending an investigation of hazing of freshman athletes. The scandal erupted after the web site badjocks.com posted graphic pictures of team members, in various states of drunkenness and undress, engaging in simulated sexual activity and other forms of forced humiliation. Team alumni have denied the posted photos represent a longstanding tradition. Northwestern, of course, prohibits hazing, as the Chicago Sun Times reports here.
The San Jose Mercury News draws the obvious parallel to the Duke lacrosse scandal: "Progress was supposed to mean that drunken, ignorant male athletes wouldn't demean or harass women, not that drunken, ignorant female athletes would have equal opportunity to demean and harass one another. But that's how progress happens. For every step forward, there is at least one step backward. Sometimes two or three."
The NCAA and its members schools need to get tough, fast, on student athletes posting albums and other derogatory and demeaning information on photo-sharing web sites (guest blogger Tim Epstein discussed potential issues with such a move here). Badjocks.com got these pictures off of an album posted by the players on the internet. While it may take an athlete only a second to upload a photo to the web, it can take a lifetime to live it down. Loyola University Chicago has banned its athletes from posting on facebook.com. Perhaps other schools, or the NCAA as a whole, needs to consider a similar prohibition.
Posted By : Geoffrey Rapp
The Power of Informal Property Rights Among Sidewalk Vendors
Message posted on : 2006-05-18 - 10:45:00
If you've ever been to Fenway Park in Boston, then you know there's nothing better than those Italian sausages sold by sidewalk vendors on Yawkey Way and Lansdowne Street. Granted, we may not know what's inside those sausages, but so long as we pretend that we've never read Upton Sinclair's The Jungle, then we really don't care about their ingredients and instead simply enjoy their taste. The same phenomenon undoubtedly take places around Yankee Stadium, Wrigley Field, and all of the other great ballparks.
But who gets to decide where those sidewalk vendors position their food stands? Is there a formal legal structure, such as zoning laws or a system of licenses, or is there an informal mechanism, such as who gets their first or is who is usually there? Or is there a formal structure that is ignored in lieu of an informal one?
Professor Gregg Kettles of Mississippi College School of Law addresses these types of questions in his paper Formal Versus Informal Allocation of Law in a Commons: The Case of the MacArthur Park Sidewalk Vendors. Gregg, who resided in Los Angeles before moving to Mississippi, conducted an empirical study of sidewalk vendors on Los Angeles' MacArthur Park, which features both illegal and legal/licensed vendors. He found that the "illegal" vendors were far more profitable and organized in their trade, which he explains as consistent with the rational allocation of property rights in a commons:
Each licensed vendor was one of more than thirty graduates of a special government-mandated vending training program, but only a halfdozen of them bothered to show up on the sidewalk on a typical day. Meanwhile, across the street, where vending is against the law, there was a buzz of activity, which continues today. The city enforces the law against illegal vending only sporadically. Soon after law enforcement leaves the scene, illegal vendors re-emerge like flowers after the spring thaw. Dozens of illegal vendors hawk their wares on busy sidewalks that have become a bazaar where anything that can be sold from a cardboard box, a blanket, or a suitcase is there for the asking. Why didn't more vendors go legal? Why did the legal district fail? Despite efforts to stamp it out, why does illegal vending continue to flourish?
The answer lies in part in property rights. The success of any vendor depends on finding a good spot from which to vend, and choice spots are highly coveted and scarce. The legal vendors in MacArthur Park and the illegal vendors across the street both sell from land that is traditionally open to the public at large—a commons. But how that land is allocated is dramatically different. In MacArthur Park, a system of allocating space among the legal sidewalk vendors who operate there was formally adopted by the city. Across the street, a completely different system for allocating scarce sidewalk space was adopted by illegal vendors on an informal basis. It is the formality of one property system and the informality of the other that substantially explains the different outcomes in these two parts of a commons . . .
Self-interested strangers have coordinated their vending activities to maximize the value of the sidewalk. They have done this not just in the absence of government help, but in the face of government hostility. These illegal vendors developed wealth maximizing order not in the law's shadow, but rather in its absence.
Particularly given today's debate over immigration policy and protection of our borders from "illegals," I find it interesting that spontaneous cooperation emerges among otherwise-divergent sidewalk vendors--I guess we should never understimate the power of shared opportunities to bring people together, a recurring theme no matter how long one has been in this country. This paper may be downloaded for free from SSRN.
Posted By : Michael McCann
Indiana University Gets Creative in Drafting Coach's Contract
Message posted on : 2006-05-17 - 16:40:00
Mark Alesia of the Indianapolis Star reported last week that the contract of newly-hired Indiana University basketball coach, Kelvin Sampson (former Oklahoma basketball coach), contains a provision that permits IU to fire him with no financial obligations if the NCAA "imposes more significant penalties or sanctions than the University of Oklahoma's self-imposed sanctions." Oklahoma's self-imposed sanctions included recruiting restrictions and freezing Sampson's salary at $1.01 million. The NCAA is expected to announce its ruling early next month regarding 550 impermissible phone calls made to Oklahoma recruits from 2000 to 2004. Alesia obtained a copy of Sampson's contract through a public records request.
The contract also contains a provision giving the school the right to fire Sampson without obligation if his assistant coaches or players commit serious or repeated violations of NCAA rules. Last February, Michael McCann discussed on the blog Jim O'Brien's case in which he successfully sued Ohio State for breach of contract because O'Brien's contract with Ohio State did not specify that an NCAA violation could trigger a termination of the contract, and absent that specific language, the judge reasoned that Ohio State could not terminate it. Michael ended his post by stating: "As to the significance of the employment contract's lack of specificity, you can expect...that we'll now be seeing more carefully-tailored deals between colleges and coaches."
Nice prediction Mike....
Posted By : Rick Karcher
Condi Closer to Commish Job?
Message posted on : 2006-05-17 - 16:08:00
The New York Post asserts today that Secretarty of State Condi Rice is closer to the NFL Commissioner's job. I was well aware of Secretary Rice's desire for the job; frankly, I never expected the NFL would be interested in someone with no sports industry background and no collective bargaining / antitrust experience or expertise. But according to the article, the league is "panting" for Condoleeza.
Here's more from Cindy Adams:
Condoleezza Rice's future aspirations veer toward even more initials. . . . Next up, the NFL. You've heard she'd love someday to be commissioner of football, right? Well, someday is coming. . . . Paul Tagliabue, also a D.C. insider when he became commissioner of the National Football League, will have been commish almost 20 years by the time the White House changes tenants. . . . What I know is the league is panting for Condoleezza, the headhunters have passed word around that "we're all willing to wait until she's ready."
Of course, how seriously should one take the Post?
Hat tip to Wonkette, one of the funniest people in the world.
Posted By : Geoffrey Rapp
Hawai`i Supreme Court Says No "Fore" is No Breach
Message posted on : 2006-05-17 - 10:32:00
In an interesting case picked up by the Journal's Law Blog, the Hawai`i Supreme Court held that a golfer who hits another golfer with a ball is only liable if s/he acts recklessly or intentionally (the original AP story is here and the court's opinion is here). Mere negligence on the links is not actionable. This is of course consonant with the vast majority rule in American law -- that co-participants in sports (at whatever level) may not recover from each other for injuries caused by negligence or resulting from conduct that is "part of the game." See this post by Greg.
Here are the facts of the case: "Tom was about 175 yards away from the hole when he hit his approach shot to the fifth hole green. The ball, however, took flight in an unintended direction. The ball hit the left side of the fairway, bounced into the rough, bounced again on the dirt area, then bounced onto the cart path, sending the ball towards the golf cart in which Yoneda was seated. Yoneda was struck in the left eye as his golf cart emerged from behind the restroom building."
The puzzling thing is the court's analysis of the failure of a player to yell "fore" when hitting a golf ball headed towards another player. The plaintiff in the case was struck in the eye and defendant admitted that he had not called out any warning. The court evidently took judicial notice that "It appears to be common knowledge among golfers that golf etiquette requires that a player shout 'fore' as a warning when his or her shot may endanger another player." However, the defendant's "failure to yell 'fore' when he hit the errant shot cannot be said to have been intentional or reckless conduct that falls outside the range of the ordinary activities involved in golfing. See Dilger, 63 Cal. Rptr. 2d at 594 (holding that golf etiquette, i.e., yelling 'fore' to warn others of errant shots, 'does not necessarily rise to the level of a duty')."
Why isn't a failure to yell "fore" reckless? Why isn't it so far outside the boundaries of what one expects about golf so as to be actionable? In the Hawai`i case, the plaintiff emerged from behind the bathroom building and defendant realized "too late" to shout a warning that plaintiff was likely to be hit. To me, if I hit a ball that's headed towards a restroom building, there is a fairly high likelihood someone will be hit by that ball and seriously injured. Even though I may not know of a specific person likely to be injured, it would seem imperative to call out a generic warning. There are several skiing cases where skiers who went off jumps, unaware that other skiers were in the “landing path�, were nevertheless held to have acted recklessly. Why isn't that law applicable here?
Posted By : Geoffrey Rapp
The Meritorious Rise of Michelle Wie in a Time of Age-Based Nonsense
Message posted on : 2006-05-16 - 13:31:00
David Fay, executive director of the US Golf Association, commenting in today's Boston Globe on the decision by the USGA's Women Committee's Chairwomen to extend a special exemption to a then 14-year old Michelle Wie to play in the 2004 US Women's Open:
"It wasn't even a tough call. To not exempt her, in my view, would be some sort of age discrimination."
Fay is then cited for the USGA's recent decision to grant Wie a special exemption at a US Open qualifier in Hawaii:
Fay was adamant that the special exemption was deserved and if there were any critics, they surely had to be silenced when Wie outplayed a field of men (and one other teenage girl) at Turtle Bay Resort & Golf Club in Hawaii. . .
Fay was referring to the fact that Wie -- who turned pro in October -- has not yet reached the minimum age of 18 for LPGA Tour membership, so her prize money is not official. To Fay, however, it's impressive -- $181,449 in two tournaments, which would have Wie 16th on the money list. The top 35 as of May 29 are eligible for exemptions and ''that's why it's such an easy decision," Fay said.
So because Wie is such an outstanding golfer, and because excluding her would seem illegal, the USGA and LPGA are willing to overlook their age eligibility policies. Funny how an exemption policy grounded on merit-based thinking makes so much intuitive sense, and yet the NBA would rather have an absolute, bright-line rule that prevents a player like Greg Oden--perhaps the best NBA prospect since Lebron James--from entering the league straight out of high school or earlier. As to the NFL, it also has a bright-line rule, unless, of course, it chooses to not apply it for whatever reason (see e.g., Larry Fitzgerald, who the NFL allowed to participate in the 2004 Draft, even though only two and a half years had passed from the date of his high school graduation and the date of the draft, and he was thus a half-year short of meeting the required three years for draft eligibility. His father, a well-known sports journalist, would later credit the “relationship� he and his attorney had “built over the years with commissioner Paul Tagliabue� as crucial in obtaining a waiver. See this law review article for more).
Posted By : Michael McCann
Is There a Disney Case Against Cablevision Over the Larry Brown Contract?
Message posted on : 2006-05-16 - 11:21:00
For the last several days, it's been widely reported that the New York Knicks will buy out the remaining four years of coach Larry Brown's contract for something like $40 million. See here, here, here, and here. In all, Brown will have earned $50 million for less than 10 months service. In this coverage, James Dolan is often referred to as the “owner� of the Knicks, but the Knicks are actually owned by Madison Square Garden, which is in turn owned by Cablevision, a publicly traded corporation. Dolan may run these various entities, but there are other shareholders to whom the various officers and directors owe fiduciary duties. I wonder whether these other shareholders might be able to sue the board of MSG / Cablevision for a fiduciary duty breach. The leading case on point is Disney.
In addition to sports law, I also teach and write about corporations. The corporate law community is currently waiting with baited breath for the Delaware Supreme Court's decision in this case, which was argued in January. There's good commentary on the case (and predictions about it) here, here and here. Here's a quick summary of that litigation. The Disney saga began when Michael Eisner hired his good buddy Michael Ovitz, a Hollywood talent agent, to be his number #2 at the Disney corporation. Ovitz turned out to be woefully unqualified, and quickly began planning his exit. He departed the company after 14 months service and collected a shocking $140 million. Shareholders sued, claiming corporate “waste.� The initial complaint was dismissed with leave to amend because it failed to plead that Ovitz's compensation bore no relation to the services rendered (the current Delaware standard for a waste claim in the executive compensation context). Shareholders did a bit more digging, and uncovered evidence that the Disney board(s) had abdicated responsibility for negotiating the terms of Ovitz's contract and then deliberately ignored its obligations in relation to Ovitz's departure from the company. The court found that this new complaint stated a cause of action on which relief could be granted under a fiduciary duty breach theory. The new complaint was less about waste than it was about severe procedural defects in the board's decision-making (reminiscent of the famous corporate law case, Smith v. Van Gorkom). Under the new complaint's theory, shareholders went to trial and lost; their appeal is what the Delaware Supreme Court is currently considering.
Under the still-good law Disney opinion recognizing severe procedural defects in executive compensation decisions as actionable under a fiduciary duty theory,
Cablevision/MSG/Dolan need to tread carefully in solidifying the terms under which Brown will depart. The parallels between Ovitz and Brown should be fairly clear: Subpar performance and tens of millions of dollars in compensation for just a few months work. Of course, there are some differences. While Ovitz had no studio experience when he took the Disney job, Brown has a pretty solid record as a coach. While Ovitz made more money than Brown from the deal, coaches are generally paid a lot less than top executives at multi-national corporations. Dolan might take some solace that the Disney directors won at trial, but I don't think I'd want to take that risk. Perhaps concern for Disney-type litigation explains the delay in resolution of the Brown matter?
Posted By : Geoffrey Rapp
Rethinking Sports Unionism (Part 2): A Public Sector Union / No Strike Alternative?
Message posted on : 2006-05-15 - 15:37:00
In my last post on this subject, I sketched some of the problems caused by player unions in a “mature� sports industry. Although at least one kind and thoughtful commenter found my argument “ridiculous,� I stand by the assertion that sports unions have gone astray. They concentrate too much on defending and protecting wrongdoers and not enough on the best interests of fans and their sports as a whole (in real sense, sacrificing players' long run interests for the sake of the short run). In this post, I discuss a negative feature of the current model of sports unionism that, to be fair, can't be blamed on unions alone: Strikes and Lockouts. (In fact, the owners, who have over the years engaged in shady bargaining tactics as well as outright collusion, have historically probably been more to blame). Regardless of who is to blame, however, the negative effects of a player strike or management initiated lock-out in the major sports (baseball, football, and to a lesser degree, basketball and hockey) are undeniable.
The worst thing that could possibly happen to America, other than a terrorist strike or an outbreak of Bird Flu, is a season-ending strike / lockout in football or baseball. While a football strike seems to have been averted (for at least the next six years), there is a fair chance that the widening Mitchell Steroids Probe could lead to labor strife in baseball by this winter. That would be a disaster for baseball, and for the country. A season-stopping strike or lock-out has far reaching economic and non-economic effects. Not only would businesses directly dependent on the league suffer (TV stations, memorabilia sellers, etc.), businesses that indirectly are affected (restaurants, bars, parking lots near stadiums) lose money too. And the psychological impact of a strike on communities across the country is severe. We look to sports as one of the few common passions in an increasingly divided society; the loss of even part of a season will leave us, for lack of better phraseology, collectively depressed.
Under the NLRA, sports unions have a right to strike, and the leagues have an equal right to lock out employees. But not all unions have such a right. It is illegal for federal employees to strike, as the Air Traffic Controllers learned in 1981. In many jurisdictions, other public sector unions like police and firefighter unions can't strike either. In exchange for not having the right to deploy these tools of economic conflict, public sector unions and employers are afforded the right to “interest arbitration.� This is different than the “rights arbitration� currently available to sports unions/players. Under the current model, a covered employee or the union can seek to arbitrate a dispute about the meaning of the CBA (that is, what rights the CBA provides). Public sector unions, lacking the right to strike, may instead, at impasse, demand arbitration of their actual substantive disputes. The interest arbitrator sets the terms for the next CBA.
I think this model would both work in and be appropriate for the sports industry. A federal statute
(amending the NLRA) would no doubt be necessary, and this brief post is not meant to outline all of the issues that would be involved in drafting and enforcing such a statute. While police, fire, or railway workers are barred from striking due to concerns about transportation and first-responder infrastructure, for players' unions it would be a concern about the pecuniary and non-pecuniary externalities of athlete strikes that would justify a move towards the public-sector “interest arbitration� model.
Bradley S. Albert and Brian K. Albert proposed the public-sector model in their article on the non-statutory labor exemption in sports, which can be found at 2 Sports Lawyers Journal 185 (1995); their abstract can be found here. That proposal should be revisited, and I hope it does not take a baseball strike next year to make that clear.
Posted By : Geoffrey Rapp
Minor League Replacement Umps Getting it Wrong?
Message posted on : 2006-05-15 - 10:54:00
At Workplace Prof Blog, Law Prof Jeff Hirsch of Tennessee discusses the minor league umpire strike, which I commented on here. Professor Hirsch links to a Knoxville News Sentinel article that asserts that minor league replacement umpires (largely college and high school umps) have been making bad calls at a higher rate than the regular umps. The News Sentinel article goes so far as to imply that prospect Delmon Young, suspended for throwing a bat at an umpire, did so (at least in some part) because of bad calls by replacements. With all due respect to the News Sentinel, the few anecdotes cited hardly seem to support the proposition that replacement umps are making more bad calls. It's entirely possible the regular umps make just as many bad calls; we just were not watching them as closely.
Posted By : Geoffrey Rapp
Joe Montana Says the NFL Treats Former Players Unfairly
Message posted on : 2006-05-15 - 06:45:00
Joe Montana is complaining about the way he and former players are being treated by the NFL. In an interview with Peter Kerasotis of Florida Today, whose column was reprinted this past weekend in USA Today ("Montana rips NFL's treatment of former players"), Montana asserts that (1) the NFL unfairly compensates former players for appearances, (2) the NFL has fought him "tooth and nail" over workers' compensation issues and (3) the NFL doesn't care about former players who can barely walk now. Here are some excerpts from Peter's column:
- For an appearance this year at the Super Bowl in Detroit, the NFL provided former Super Bowl MVPs with $1,000 for incidental expenses, as well as first-class airplane tickets, a hotel room, a Cadillac to use, and two tickets to the game as well as tickets to other parties and NFL functions. Montana confirmed the $1,000 offer and called it "an embarrassment. A thousand dollars? That's all? They should have been embarrassed to offer guys just a thousand dollars. What are you going to be able to do with just a thousand dollars?"
- Montana previously had neck surgery and foresees future knee surgery as well. He says the NFL's fight with him over workers' compensation "went all the way to the California Supreme Court, and I won. Twice they've stopped payment, and I've had to fight them again. Just a few months before this last Super Bowl they stopped payment again. Then they want me to skip my boys' basketball games to help them out."
- Regarding the general treatment of former players, Montana had this to say: "You know what makes me mad? The way they treat former players. Not just me. But some of those old guys, too, those guys who can barely move and walk. But that's the NFL. They want you to do stuff for them, but they don't want to do anything for you, not without getting their money. A few years ago, I wanted them to do something for a charity I was doing for kids. It was like I was just another guy. They wanted me to pay full fee."
As I read this column I couldn't help but think, why is Montana ripping the NFL and not those who represent him and former players against the NFL? Why would Montana feel that the NFL should "give back" to the former players? Is it so unusual for an employer to fight workers' comp. claims? If, in fact, he and former players are not being fairly treated by the NFL with respect to appearances, sponsorships and workers' comp. issues as he suggests, shouldn't his beef lie with his agent and the NFLPA instead?
In some respects this issue ties in with Geoff Rapp's recent post regarding the role of sports unions today, in which he asserts that unions relentlessly protect "superstar" insiders at the expense of outsiders. As part of the collective bargaining process, it is typical for unions and employers to negotiate various levels of benefits and protections for retirees. While Geoff was referring to amateur players yet to become members of the union as "outsiders," former players could also be considered as outsiders. Maybe their interests deserve greater consideration by the unions too?
Posted By : Rick Karcher
Should College Women Athletes Practice Against Men?
Message posted on : 2006-05-14 - 20:31:00
Michelle Hosick of The NCAA News has an interesting piece about the progress of legislation in the NCAA that would authorize womens' sports teams to practice against male athletes in scrimmages and the like. At their April meetings, the Division I and Division II Management Councils referred the matter to committees for further study. The article does a good job of sketching the arguments on both sides of this issue. On the one hand, allowing womens' teams starters to practice against male athletes means that "bench" players from the womens' teams, to whom those practice duties would otherwise fall, get a more limited participation opportunity. On the other hand, bringing in the best male athletes to practice against female athletes might elevate the level of competition in female college sports. These two sides, of course, reflect two very different views of college athletics: Are college athletics meant to provide participation opportunities, or are they meant to produce the most competititve and profitable product for televised consumption?
Posted By : Geoffrey Rapp
Growing Italian Soccer Scandal
Message posted on : 2006-05-13 - 09:31:00
Yesterday, Italy's paramilitary police, the Carabinieri, searched the offices of Italy's soccer federation in connection with a growing corruption scandal involving, primarily, "sports fraud." Managers of some of Italy's most widely loved teams, including AC Milan and Juventus, are suspected of fixing matches and conspiring to appoint particular referees for particular assignments. The (London) Times has a good narrative of the scandal, along with speculation about its potential impact on Italy's world cup hopes, here. An interesting feature of European soccer is that even top franchises like Juventus can be effectively "demoted" to the minor leagues. My understanding is that such a thing would typically happen if there were a series of bad years; but it seems also available as a punitive measure.
Posted By : Geoffrey Rapp
College Athletes Get Paid - Part III
Message posted on : 2006-05-12 - 16:56:00
The grant-in-aid compensates college athletes by affording them a chance at a college degree and a professional sports career, as explained in Part I. Compensating athletes individually, such as by salary, poses some difficulties in identifying the largest revenue producers, although these problems are likely not insurmountable, as argued in Part II.
What is perplexing about the debate over paying college athletes is the common assumption that, if athletes were paid a competitive price for their services, their compensation would increase. Proponents of the compensation argument point to the millions of dollars earned from college sports and assume that eliminating the NCAA prohibition against paying athletes would enrich the comparatively impoverished student-athlete. Not necessarily.
Assume players were allowed to sell their services to college teams in a competitive market. Some would earn a substantial salary, for example the star athlete in a major revenue sport such as basketball. Colleges would bid against each other, and perhaps even the professional leagues, for the player's services. (Even if the player were ineligible for the NBA, he might opt for a year playing in an overseas professional league instead of college ball.) But remember, the star college athlete already in effect receives a substantial salary: in the near future he will be eligible for a professional-level income stream. If necessary, the star can borrow against that income while in college, as presumably many players do, as the bling and Escalades appear to attest. So the star can already capitalize on his income potential; the fact that the source of the income is his future professional team and not his one-year alma mater makes no financial difference.
But what about the rest of the players, whose dreams of college stardom do not materialize? Presently, in most cases, those players are protected from the non-renewal of their scholarship, because the rules of the NCAA and of most schools combine to limit termination to cases of academic failure, attendance problems, drug abuse and the like. As a result, as long as they adhere to team and university rules, these athletes will get to pursue their degrees and the lifetime income those degrees entail. Coaches can do little about malingerers or others whose talent they misjudged in awarding them a scholarship. (No wonder college coaches are famed for their histrionics and anger: what else can they do to players except yell?). College sidelines are full of scholarship athletes whom coaches would love to cut.
But in a world in which yearly salary, not scholarships, constitutes the primary means of compensation, coaches might not be as restricted by rule to maintain pay grades. Coaches might over-promise recruits, only to cut their pay when athletic performance does not meet expectations. Certainly reputational fears would slow most college coaches from “bait-and-switch� recruiting; nonetheless, establishing a clear employer-employee relationship between the student-athlete and the school would probably render the player more vulnerable to the vagaries of at-will employment, with the college coach/madman as the boss.
A scholarship package that approximates $40,000 per year in value clearly does cap certain players' earnings; at the same time, it probably over-compensates other players. Is today's lock-step system of compensation wrong, in the fundamental sense that reformers seem to claim it “wrong� that colleges profit while their athletes do not? Lots of employers and unions prefer pay grades and lock-step systems, in part because they help to insulate the employees from the caprice and vindictiveness of the boss. Judging from the inappropriate and immature behavior that is put on display by some of the
adults who roam the sidelines, a little insulation might be needed. Put another way: suppose all entering college athletes were to join to set wages: would they prefer the star system or lock step? Clearly they would want more money (who doesn't?), but the current pay rate appears sufficient to clear the market of suitors.
If one day the NCAA does allow colleges to compensate players directly, the impetus will probably come from schools who want the ability to out-bid professional teams, and not from those who say that a full college scholarship is not enough.
Posted By : TSLP
Massachusetts AG Tom Reilly: Sporting Goods Stores Illegally Selling BB Guns to Minors
Message posted on : 2006-05-12 - 16:01:00
Massachusetts Attorney General Tom Reilly (who I worked for before attending law school) has threatened to sue a group of sporting goods stores, including the national chain The Sports Authority, Inc., for selling "look-alike" BB guns and air rifles to minors under the age of 18, which is illegal under Massachusetts law (Elizabeth Raferty "Attorney General Goes After Illegal BB Guns," Boston Globe, 5/1//2006). These guns resemble real guns and fire plastic or metal pellets that can cause serious injury. Reilly's office, along with that of Lowell Police Superintendent Ed Davis, conducted a sting operation and found that teenage boys could easily purchase these guns both on-line and in person, with
no check of identification. The operation was sparked by concerns from local police and school superintendents about students bringing these guns to school, as well as by a rash of recent shootings, with several kids seriously injured by BB guns fired by other kids. Although marketed as sports toys for kids, BB guns and air rifles may be better characterized as dangerous weapons. Massachusetts law only imposes a $5,000 fine per BB gun or air rifle sold illegally--a drop in the bucket for a chain like The Sports Authority--but perhaps this negative publicity will hurt sales.
Interestingly, Reilly's general contention appears supported by empirical data. For instance, in November 2004, the journal Pediatrics published a study finding that BB guns annually injure as many as 21,000 Americans, many of them children. The study also found that while many, if not most, Americans regard BB guns as sporting goods or sporting toys, there is a disconnect between that belief and the remarkable danger they pose. Similarly, it also identified a correlation between the increasing popularity of paintball war games and an increase in serious eye injuries, even among those who use eye-protective devices.
So here's my question: Are "gun sports" for kids matters of public concern, or do they simply reflect kids being kids? Before you answer, just remember what Ralphie Parker was told when he wanted a BB gun for Christmas in A Christmas Story: "You'll shoot your eye out!" Of course, Ralphie couldn't buy the gun himself--he needed Santa to do that. And therein lies the real-world problem: kids on their own buying "toy guns" that aren't really toys because they can shoot and seriously hurt other people seems like a recipe for disaster. Granted, a
$5,000 fine doesn't seem all that consequential, and I'm surprised the Massachusetts legislature has set the fine so low in this Post-Columbine era, but holding sporting good stores and other merchants of these "toy" guns liable sounds like a better policy than doing nothing.
Posted By : Michael McCann
WSOP 2006
Message posted on : 2006-05-12 - 10:37:00
Poker Prof posts the revised WSOP 2006 schedule. For those of you who don't have ESPN or live in a cave, the WSOP main event is a $10,000, multi-day no-limit Texas Hold 'Em poker tournament in which thousands of entrants test their luck and skill. It's one of the rare opportunities for the common (hu)man to find a way onto ESPN. While the main event will no doubt be the highlight of ESPN's coverage (which, oddly, comes an unacceptable three months after the event), this year's new $50,000 HORSE event (in which players compete in five different poker games) will actually be the most interesting competition.
Will Ben Affleck have more than a 1000:1 chance of winning this year?
Posted By : Geoffrey Rapp
What's in a Number?
Message posted on : 2006-05-12 - 07:30:00
Jarrett Bell of USA Today reports that Reggie Bush, who wore number 5 at USC, is challenging a long-standing NFL rule that requires running backs to wear a jersey number from 20 to 49 ("Bush pleads to stay No. 5"). As a result of Bush's petition, the members of the NFL's competition committee are scheduled to discuss today by conference call what Bush's marketing agent, Mike Ornstein, calls "an antiquated rule". If the committee recommends a revision to the rule, it would then be submitted to a vote of the owners and would require at least 24 votes for approval.
According to Indianapolis Colts president Bill Polian: "We can't look at it like it's about Reggie Bush. It's never about individuals. Otherwise, where would it stop? It's always about the rule." However, Ornstein insists that Bush has built up equity in No. 5 and says, "If Reebok's smart, they'd still sell No. 5 jerseys, even if he winds up wearing No. 25." [But would fans really be interested in wearing a jersey with a different number than the player's actual number?]
This issue raises lots of questions in my mind. If Ornstein is correct in his assumption that jerseys are much more marketable to the fans with a player's old college number and that the players and teams are foregoing revenue from increased sales, why is the rule just now being challenged by a player who hasn't even signed an NFL contract yet? If Ornstein is right, both the NFLPA and the NFL would obviously have an interest in revising the rule. Is this possibly an indication of why Bush was not the first pick in the draft?
Posted By : Rick Karcher
Indian Marathon Age Limits Lawsuit
Message posted on : 2006-05-11 - 14:01:00
The AP reports that the coach of a four-year-old Indian Marathon runner is challenging his pupil's exclusion from a marathon in court. I'm not sure what India's antitrust laws would say about this age-based exclusion. I think most common-sense observers would distinguish this case from Maurice Clarett's case based on the fact that this kid is only four. Although it does point to a potentially untapped argument for leagues seeking to defend age exclusions: that allowing someone under the age of majority to participate amounts to child labor in violation of international human rights accords?
Posted By : Geoffrey Rapp
Rethinking Sports Unionism (Part 1)
Message posted on : 2006-05-11 - 12:55:00
A lot has changed in the past forty-odd years, the era of sports unionism. Sports unions were vitally important in the 60's, 70's and 80's in shifting a greater share of the economic wealth associated with professional sports away from team owners and towards players. Given the realities of pro sports and their legal treatment at the time unions emerged, unions had a necessary role; although the truth is, the only reason they were needed was that courts had mucked up sports antitrust jurisprudence. In this first of three posts, I suggest that the players' unions have outlived their usefulness.
Antitrust law could easily have solved the problems unions addressed in professional sports had it been applied sensibly and consistently to the sports industry. Sadly, it was not. Instead, the Supreme Court long ago introduced an absurd antitrust exemption for the “business of baseball�. I say that antitrust could have solved the surplus-shifting problem because the only reason owners captured a greater share of the surplus generated by baseball (and once television revenues began to skyrocket in the 60s and 70s that surplus became astounding) was by engaging in both explicit and “gentleman's� agreements to restrain trade in the professional athletic labor market. Given that baseball was deemed “exempt� from the antitrust laws, players were unable to use the obvious Section 1 claims available to workers in any other industry; only by the power of unionism, collective bargaining and labor arbitration were they able to free themselves of the onerous Reserve Clause and capture their rightful share of the television-revenue windfall.
In football and basketball, no such antitrust exemption applied. Even without the exemption, however, antitrust was a flawed remedy in those industries. For one, courts refused to apply the “per se� condemnation of obvious horizontal restraints of trade that would be applied in any other industry. Instead, courts reasoned that there were certain levels of cooperation among competitors that were simply required for the organization of effective sports leagues; as a result, labor market restraints in the non-exempt football, basketball, and hockey leagues were subject to Rule of Reason inquiry (and eventually, “quick look� rule of reason inquiry). This may seem like a sensible proposition—that cooperation is required for a league to function—but it has to be considered from the perspective of legal strategy, tactics, and litigation costs. The move towards universal ROR inquiry for sports league antitrust cases has made such cases incredibly costly and time-consuming for plaintiffs. A further problem for the football and basketball players early on was that the NFL and the NBA were not actually market dominant (the way that Major League Baseball has been since the turn of the century). Even through the early 1980s, rival leagues were able to effectively challenge the NFL (the AFL, WFL, and USFL) and the NBA (the ABA) for market dominance. Although these leagues may have withered or been absorbed, they were all able to offer marquee players attractive if not supra-competitive salaries. Section 1 suits against the NFL and NBA faced a difficulty of demonstrating that those leagues had sufficient market power in the player labor market to produce, via horizontal restraints, a demonstrable “anticompetitive effect�.
But things have changed. First, with respect to the professional labor market, the baseball antitrust exemption has been obviated by statute (the Curt Flood Act of 1998). Baseball players could, today, effectively have challenged the Reserve Clause under Section 1 of the Sherman Act. Moreover, the NFL and the NBA
have become supremely dominant and their “market power� cannot rightfully be questioned. The barriers to entry in professional football (at the NFL level) and basketball created by television contracts are now severe (witness the collapse of the XFL and the ABA). Antitrust law could now solve all of the problems of owners' acquiring too much of a share of revenue from pro sports (during the 1980s, the NFL players successfully utilized antitrust law on a number of occasions). Only it can't, of course, because labor unions exist and collusive activity for all three leagues is now exempt from scrutiny under the so-called “non-statutory labor exemption� from antitrust law.
And the pernicious effects of sports unions cannot be ignored. In my next post, I will explore some of the consequences of labor conflict (strikes and lockouts) and suggest a solution. For the meantime, consider the three most dramatic negative effects of current sports unions. First, they have engaged in a relentless protection of insiders (and particularly “superstar� insiders) at the expense of outsiders. Unions could help ensure access to employment for rising stars; instead, they collaborate with the leagues to erect barriers to entry such as age-limits. While the insider-outsider problem is well-known in labor economics, it seems particularly potent in connection with sports unions. Second, sports unions have harbored criminals (e.g., Latrelle Sprewell, Steve Howe, and the Indiana Pacers Basketbrawlers), cheaters (e.g., Bonds, Giambi, Sosa) and scoundrels.
Most significantly, in part because of these negative consequences, it is my belief that the players' unions have had a debilitating effect on the American union movement generally. I'm no union-buster; in fact, quite the opposite (see my support of minor league umpires here; but see my vaguely pro-management paper on specific performance in athletic employment contracts, the final version now up here). My mother was in a union, I spent around 30% of my time in practice representing members of the United Farm Workers, and I enjoy the protection of a collective bargaining agreement at my university (although law professors are apparently barred from membership in the union based on legal ethics rules, which is nice, because I'm relieved of the obligation to tithe union dues). But even supporters of the labor movement have to acknowledge the well-documented decline of American unions. So too the increasingly negative view the public has of unions. Why has the public abandoned unionism? Of course, there are many factors to explain these developments. But I would submit that sports unions – full of bratty, petulant, abusive millionaires constantly demanding just a little bit more coin and willing to sacrifice the happiness of fans and communities (see my next post) – have played a role. Players' unions are the unions most in the public view (as Judge Sotomayor noted in her Silverman opinion, 880 F.Supp. 246, strikes in pro sports "captivate[] the public's attention" and "place[] the entire concept of collective barganing on trial."). The behavior of sports players' unions has been morally deficient. Other unions, struggling on behalf of far less well heeled employees in more cash-strapped industies, have acquired guilt by association. And the whole of the American labor movement has suffered as a result.
Stay tuned for Part II of this discussion, next week.
Posted By : Geoffrey Rapp
"Drop Papi"? The Relationship between Inciting Sports Headlines and Tort Law
Message posted on : 2006-05-10 - 17:08:00
David Ortiz of the Boston Red Sox is often called a "Yankee-killer" because he seems to love batting against New York Yankees pitching, particularly in clutch moments. And with the Red Sox playing the Yankees in New York this week, Mike Vacarro and editors of the New York Post thought it would be wise to post a headline suggesting that Yankees pitchers throw pitches that nearly hit him. Here is the backpage of yesterday's Post:
And in his corresponding article "It's About Time the Bombers Drop David," Vacarro writes:
"The Yankees have to droppy Papi. They need to brush the beast back. They need to pick out one of David Ortiz' chins and let a little music dance across the whiskers. And they need to do this immediately. Across the next three days, Randy Johnson, Mike Mussina and Shawn Chacon will each get three or four shots to put Ortiz on notice that, on behalf of the entire Yankee pitching staff, they are mad as hell.
In many ways, the headline and article are a tribute to Ortiz. He's clearly "in the head" of the Yankees and their media and fans. And as alluded in the excerpt above, Vacarro's piece lauds Ortiz, even calling him "otherworldly" when playing against the Yankees.
So is there any concern with the headline? Well, what would happen if a Yankees pitcher throws at Ortiz this series and hits him in the head or face, causing him a serious, perhaps career-threatening injury? Likely to happen? Nope. Possible? Sure. Pitchers don't have perfect command of their pitches, and if they were to throw at Ortiz to brush him back from the plate and accidentally (recklessly) hit him, we might wonder if the New York Post would have anything to worry about legally.
Ortiz might try two tort claims in this imagined scenario. Specifically, he might sue the Post for battery or negligence. Let's take battery first. Battery is an intentional tort that protects against physical harm. But intent is key, and for that reason, it's unlikely to provide a recourse for Ortiz: a headline or story suggesting that a player be harmed, or risk being harmed (as can happen with a brush-back pitch) is not the same thing as intending that he be harmed or be exposed to the risk of that harm.
And not surprisingly, media and entertainment ventures are seldom held liable for battery resulting from a published work. One exception (as my Torts students know all-too-well from their final exam yesterday!), concerned Soldier of Fortune Magazine, which published personal ads that solicited murder (see Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (11th Cir. 1992)). The magazine was held liable for publishing the content that led to the murders, with the court reasoning that the magazine could have easily corrected the problem in advance by editing the ad or providing a disclaimer. But more generally, this argument doesn't work. And that is one of the reasons why tort lawsuits or threatened tort lawsuits against the makers of violent films (e.g., Natural Born Killers) or violent video games (the sublime Grand Theft Auto: San Andreas) almost always fail.
More likely, if he brought a lawsuit, Ortiz would sue the Post
under a negligence theory, alleging that the Post owed and failed to satisfy a duty of care to him, and that the failure was a legally-recognizable cause of his harm. While I think Ortiz could make a fairly compelling argument that a newspaper owes a duty to not incite specific violence against a player, I see causation as a major problem here. While the Post is indeed influential, it certainly doesn't dictate the decisions of the New York Yankees, and its influence on the Yankees is speculative, at best. On the other hand, causation can sometimes be inferred from evidence that the defendant's negligence made the outcome more likely, but again, what would that evidence be in this circumstance? Would it take a conversation between Mike Mussina and Joe Torre that went something like this?:
Torre: I think we need to brush Ortiz back. He's killing us, and the whole world seems to agree--just look at this headline.
Mussina: I agree.
While that kind of conversation might be fun for a torts exam, it's obviously not believable. And even if it were, what about the obvious intervening cause: a New York Yankees pitcher, and not anyone at the Post, hitting Ortiz with a pitch? Granted, proximate cause sometimes enables an intervening act to not break the causal nexus between a plaintiff and defendant, particularly if the defendant had foresight as to the intervening cause (here, a Yankees pitcher throwing at Ortiz and exposing him to the risk of being hit), but media and entertainment companies can typically point to intervening cause as a way of breaking a causal nexus.
Moreover, using tort law to seek redress for media headlines may run into constitutional hurdles and first amendment protection, particularly since the "danger" evoked by a headline seems far from substantially certain, which, among other things, is normally required to overcome a first amendment hurdle.
Bottom Line: While headlines like "Drop Papi" may be in poor taste, it's tough to imagine a scenario whereby they trigger any liability under tort law. And for a wonderful and in-depth study of the relationship between media and tort law, check out the following article by Professor David Robertson of the University of Texas School of Law: "Incitement and Tort Law," 37 Wake Forest Law Review 957 (2002).
Posted By : Michael McCann
Tienes un problema?
Message posted on : 2006-05-10 - 15:28:00
Michelle Malkin does.
Posted By : Geoffrey Rapp
Greg Norman Demands PGA Open Books; Antitrust Suit Looming?
Message posted on : 2006-05-10 - 09:34:00
In March, our Guest Contributor Chris Callanan discussed golfer Greg Norman's retention of a lawyer to pursue a request to open the PGA's books and records. Today, the Journal's Law Blog links to a Forbes article reporting a threatened suit by Norman against the PGA calling on the tour to release the minutes of its board meetings and other information about its for-profit subsidiaries. Norman's lawyer argues that the PGA tour's players are "akin to shareholders in a public company. 'The central question here is, who owns the Tour?'"
Forbes speculates that Norman may be motivated by personal animosity. My guess is that his lawyer has some theory of antitrust violations by the non-profit PGA in connection with its various for-profit subsidiaries and affiliates. As Guest Blogger Callanan noted, Norman unsuccessfully attempted to launch a rival golf tour in the 1990s.
The legal status of the PGA (and pro golfers) has been a complicated one for courts over the years (on issues like whether pro golfers are employees and whether golf tournaments constitute "public accommodations"). I can't recall an argument that the PGA is owned by the players, and it's certainly an interesting theory. The black-letter law about ownership of nonprofit entities is that they are owned by the public at large, not their clients or employees. Since the public at large is indefinite, non-profits are effectively without owners; although as my professor Henry Hansmann demonstrated in his book The Ownership of Enterprise, non-profit managers are constrained by stricter fiduciary duties. My guess is that Norman's lawyers' theory about who owns the PGA is a loser, although that is not to say that under non-profit organization law the PGA does not have some obligations to make the requested disclosures.
Posted By : Geoffrey Rapp
Optical Illusion? Commercial Photography and the Law in Minor League Baseball
Message posted on : 2006-05-09 - 21:56:00
Mike Anderson, a photographer for KOB-TV (NBC's affiliate in Albuquerque, New Mexico) alerts me to new regulations on commercial photographs taken in minor league baseball games. The aptly-named Minor League Baseball, which is the organization that governs and administrates the various leagues and teams in minor league baseball, has changed the press credential agreement for media photographers at games. Beginning this season, they must agree to give the minor league team a perpetual, non-esxclusive license to all of their photographs, and also to a clause that essentially takes away their promotion rights. Specifically, they must agree to the following provision:
7. Minor League Entities grants to Bearer a limited, non-exclusive and non-transferable license to take and publish photographs of the Games solely in connection with news-related coverage by the person or entity that engaged Bearer to take such photographs. Bearer grants to Minor League Entities a perpetual, non-exclusive license to use photographs taken by Bearer of the Games for news-related purposes. Except as specifically licensed in this Paragraph, Bearer must obtain written permission to transmit, offer to sell, or sell any photographs of the Games for commercial purposes, including without limitation in connection with third party advertisements or promotions, or on apparel, cups, posters, prints, T-shirts or other consumer products.
As detailed in an article by John Cherwa of the Associated Press Sports Editors Legal Affairs Committee, (Cherwa, "Take Caution Signing Minor League Credential Agreement," APSE, Mar. 20, 2006).
dsfd
Posted By : Michael McCann
Federal Court: No Discrimination in Negro Leagues Pension
Message posted on : 2006-05-09 - 20:56:00
In 1981, major league baseball players went on strike for 50 days, causing 713 games to be cancelled. The primary issue for the work stoppage was a debate over free agency (specifically, whether clubs would be compensated -- in the form of a draft pick -- for losing a star free agent) but a big win for the players in negotiations was the plan for the players' medical and pension plans. Before 1981, it took five years of service for a ballplayer to become vested in the medical and pension plans provided by the league. After the strike, the service time needed was shortened to one day (!) for the medical plan and 43 days for the pension plan. The change only affected players that retired in 1980 or later, though. Any player who ended his career (voluntarily or otherwise) prior to 1980 remained under the old rules.
In 1993, the league decided to pay a form of reparations to make amends for the color line that was in place prior to 1947. To do so, MLB set up a plan that provided medical coverage for former Negro League players, as well as a supplemental income plan that paid former players $10,000 each year. To qualify for the Negro Leagues Pension, a player must have played one full season in the Negro Leagues prior to 1948 (when integration began) and played at least four years of professional baseball in either the Negro Leagues or in the majors. Thus, a player that played in the Negro Leagues in 1946 and 1947 and in the major leagues in 1948 and 1949 would qualify for the pension. A white player who played from 1946-1949 in the major leagues (or from 1973-1976, etc) would not.
A group of white players filed a class action suit, alleging that this system constituted discrimination by an employer on the basis of race and violated Title VII. The plaintiffs argued that black players could more easily qualify for the pension plans than could white players and that this constituted unlawful discrimination.
The court disagreed. The judges acknowledged the differences between the two plans and that baseball had adopted a more favorable system for Negro League players in an attempt to "repair" some of the damage done by segregation. The key, though, was that the benefits were not awarded "on the basis of an employment relationship." Since the Negro Leagues and MLB were always separate, MLB is not awarding the pension based on a player's employment. To qualify, a player need not have ever played in the majors (i.e., a player could have played 4+ years in the Negro Leagues). Some players will qualify that played in both leagues, but no player could qualify that did not play at least one season in the Negro Leagues. The Negro Leagues pension is not "part and parcel of an employment relationship" but rather a benefit conferred basically out of the goodness of MLB's heart. It cannot be employment discrimination if the benefit is not based on employment, and thus, there is no liability under Title VII.
The law in this case is fairly unremarkable. I suppose one argument made by the plaintiffs was that the Negro Leagues and MLB functioned as one employer pre-1947, but there is really no support for this. I feel bad for the players who played less than five years from 1947-1979 (especially one plaintiff who supposedly missed the five years by a matter of days) but not too bad. After all, they did get to play professional baseball. And there were probably a great deal of players in the Negro Leagues that would have given up any pension (and salary for that matter) to get to play in the majors. For the few that remain alive, the meager pension is likely a case of 'too little, too late.'
The case is Colbern v. Selig, No. 04-55647 (9th Cir. May 9, 2006).
Posted By : Greg
MLBPA Battling Mitchell Steroid Probe
Message posted on : 2006-05-09 - 12:25:00
Taking a firm stand on the side of wrongdoers, cheats and scoundrels, the Major League Baseball Players Association has objected to preliminary investigative efforts by former Senator George Mitchell into allegations of steroid use by Bonds and other players. The union has characterized Mitchell's request for phone and medical records of some current and former players as threatening the current bargaining relationship between the union and the league (the current CBA expires this coming December). According to a memo prepared by the union's attorney, "The scope of the investigation to date is plainly inconsistent with the provisions of the Basic Agreement, related agreements and other statutory rights of all players." Hat tip to the Wall Street Journal's Law Blog.
Stay tuned for the first of three posts on Rethinking Sports Unionism, later this week.
Posted By : Geoffrey Rapp
Bush's Agent on "Both Sides of the Transaction" in Negotiating Endorsement
Message posted on : 2006-05-09 - 06:45:00
Liz Mullen reports in this week's edition of Street & Smith's Sports Business Journal that, according to a Nike executive, the fact that Reebok consultant Mike Ornstein was personally representing former USC running back Reggie Bush played a role in Nike's decision not to sign Bush to an endorsement deal. Bill Kellar, director of Nike football sports marketing stated:
“We certainly had a high level of interest. (Ornstein) is a guy we have competed against as a Reebok consultant. To a certain extent that factored into the whole scenario."
Mullen noted that Ornstein represented Bush in the negotiation of a five-year, roughly $5 million deal with Adidas that Bush ultimately signed. However, Adidas owns the company (Reebok) that employs Ornstein as a consultant! This arrangement is typically considered a conflict of interest because Ornstein is on both sides of the transaction. Interestingly, according to Mullen, Tom Shine, Reebok's senior vice president of sports marketing and Ornstein's boss, even admitted it as such: “Certainly you have a conflict of interest.�
Even if Ornstein negotiated a fair market deal for Bush (which I have no idea), the conflict is evident. Ornstein is caught in a situation in which he must choose which interest is paramount - that of his client or his employer. [Detroit Lions, Inc. v. Argovitz comes to mind here.] And Nike does not have an incentive to engage in a bidding war for Bush when he is represented by one of Nike's largest competitors (which is obviously not beneficial for Bush). Presumably, Bush consented to the conflict after having been made fully aware of all of the facts such that he could make an informed judgment when he permitted Ornstein to represent him in negotiations with Adidas.
But the message here is that conflicts of interest are prevalent in the sports agent business at many different levels. Conflicts of interest are considered to be a breach of the common law fiduciary duty, in which the agent owes his principal a duty of undivided loyalty. Undivided loyalty means that the agent cannot get himself in a situation in which there is an actual, or even apparent, conflict between his interests and the interests of the player he represents. Last week on the blog, I discussed how client solicitation, which is prohibited by law in fiduciary relationships, is commonplace in the agent-player fiduciary relationship as well.
So I'll ask the same question that I did last week: Are athletes just less deserving of the legal protections generally afforded to principals in fiduciary relationships?
Posted By : Rick Karcher
College Athletes Get Paid (Part II)
Message posted on : 2006-05-08 - 15:09:00
For Part I look here.
One argument in favor of paying college student-athletes observes that players in basketball and football generate millions of dollars for their respective universities. It concludes that fairness or equity demands that they receive a substantial portion of that revenue.
Obviously, athletes do not alone generate the revenue. Many factors, including stadium design, concessions, alumni associations and state pride, all contribute to producing the sellout crowds and television contracts. With that said, clearly the athletes are the entertainers on the stage, and in other fields usually the on-stage performers receive the largest compensation.
But even if we ascribe the lion's share of the total revenue to the athletes, it is not always clear which players actually produce the revenue. For example, consider a top basketball program, like Duke's. Duke attracts the finest players each year in part because the athletes from previous seasons created the athletic powerhouse. Basketball stars who enroll at Duke can be assured that their teammates will also be high-level players who can complement them, and that they will play in a highly competitive league in front of a national audience. It is the Duke name and tradition, a product of the efforts of past teams, coaches and others, that create that opportunity for the next top high school athlete and assure the continuation of the revenue stream.
If, however, we were to pretend that nothing else matters and that all of this year's revenue were produced by this year's team, even then it would be difficult to say which players produced the revenue. Basketball and football are quintessential team sports, where wins are the product of the joint efforts of teammates. In technical terms, there is a high complementarity of inputs. A star quarterback is worth little without effective blockers and receivers who can get open; even a decent running game enhances the quarterback's performance indirectly. As a result, it is very difficult to determine a particular player's contribution. If we assume that wins are the product of a top collegiate program, it is difficult to decide how much each player, even star players, matter to the product, at the margin. How many more wins does Player X produce, as compared to his replacement?
Wins in baseball, by contrast, appear to be much less a joint product (less complementarity of inputs). Therefore, if a pro team were to hire the league's best first baseman, best second baseman, and so on, the odds are high it will having a very successful team. To put it another way, the teams with the highest payrolls in Major League Baseball usually are the best teams. (Bet on the Yankees.) In basketball, where teamwork is much more important, the size of the team's payroll is not a good predictor of win totals. (So don't bet on the Knicks, with the league's highest payroll and near-fewest wins.)
Pro basketball and football teams in deciding whether or not to sign (or re-sign) a free agent struggle mightily in trying to measure the value of a player, and that's despite having years of performance data and even experience in coaching the player. Imagine the difficulty of pricing the marginal product revenue of a nineteen-year-old college freshman?
So, my point in this installment is not to say that star college athletes don't matter in producing wins and revenue; of course they do. My point is that the claim that “fairness� demands that the team's revenue be distributed to the players is a bit too simple; it avoids the multiple inputs that produce revenue, and also begs the question about exactly what contribution a particular player makes to that revenue. Perhaps a lock-step system that distributes some
portion of the revenue to the players equally would work; perhaps arguably that is what we have now.
Coming in Part III: What would a free wage market in college sports look like? It wouldn't be pretty.
Posted By : TSLP
Brentwood Academy v. TSSAA: The Unnerving Recruitment of Middle School Athletes?
Message posted on : 2006-05-08 - 11:04:00
On this blog, we often discuss age eligibility rules in the NBA and NFL, and how they relate to the recruitment of high school athletes by colleges and universities. It is no secret that colleges and universities with top sports programs tend to favor higher age eligibility rules for pro leagues. These rules enable schools to enroll athletes who would otherwise turn pro, and who generate tremendous revenue for those schools. Mark Alesia's recent study and Bob and Amy McCormick's recent law review article seal that point. And as many of us have seen in-person, these and other rules enable colleges to engage in a supplemental admissions process with top high school athletes.
Yet obviously, the recruitment and profiting off of young athletes doesn't begin in the 12th grade. In fact, it doesn't even begin in high school. Star athletes are often targeted before they become teenagers. If you haven't seen it yet, check out the extraordinary documentary Hoop Dreams and watch amateur coaches grotesquely recruit William Gates and Arthur Agee, two inner-city Chicago teenagers who would have been shunned by society if not for their ability to play basketball, and who later were shunned by society after they lost that ability. A similar theme of "hangers-on" is said to apparent in the film Through the Fire, which chronicles the amateur basketball life of Sebastian Telfair, who now plays for the Portland Trailblazers (I haven't seen Through the Fire yet, but hear it is excellent).
A recent decision by the U.S. Court of Appeals for the Sixth Circuit tackles the issue of youth athletic recruitment in a different context: high schools recruiting middle school football players. In Brentwood Academy v. the Tennessee Secondary Schools Athletic Association ("TSSAA"), the plaintiff, a private secondary school in Nashville renowned for its football program, engaged in arguably inappropriate contact with 8th-graders who were set to attend the school. Specifically, Brentwood's football coach, Carlton Flatt, sent letters to twelve 8th graders who had accepted their admissions offers to attend Brentwood, and who were expected to play football there. Here is an excerpt from the letter:
Having officially enrolled at Brentwood Academy, the TSSAA allows you to participate in spring football practice. If you are not currently involved in a sport at your school, we would like to invite you to practice with your new team.... Due to the inconvenience to your parents, please do not feel that you must attend every practice. However, I do feel that getting involved as soon as possible would definitely be to your advantage.... We are certainly glad that you decided to become an Eagle.
Your Coach, Carlton Flatt
After the letters were mailed, Flatt received phone calls from parents about the necessity of their boys attending practice, particularly since they were still in middle school. Flatt said the
practices were "not mandatory" and were not intended to interfere with academic work. Not surprisingly, all twelve of the boys who received the letter showed up (sort of like how almost every single New England Patriot player shows up for Bill Belichick's "voluntary" off-season workouts, except here these boys weren't even on the team yet). In addition, Flatt shared high school game tickets with middle school football coaches in hopes that they would be used by middle school players.
The TSSAA, which is an association of public and private schools in Tennessee, sanctioned Brentwood for violating the association's undue influence rule. The rule states:
The use of undue influence on a student (with or without an athletic record), his or her parents or guardians of a student by any person connected, or not connected, with the school to secure or to retain a student for athletic purposes shall be a violation of the recruiting rule.
But Brentwood Academy prevailed before the Sixth Circuit, in part because of First Amendment free speech protection. The Sixth Circuit held that "the TSSAA's use of the regulation to punish Brentwood seems to burden substantially more speech than is necessary to further the government's legitimate interest in keeping athletics subordinate to academics." Moreover, and based on trial court testimony, the Sixth Circuit did not find sufficient evidence of undue influence:
The district court obviously found the testimony of the parents of the boys in question to be more significant and persuasive than evidence from experts indicating that the letters and calls might– in theory – signal an emphasis on athletics over academics. The parents indicated they were glad to get the letter, and they did not at all think the implication of the letter was that Brentwood subordinated athletics to academics . . . the harm the TSSAA sought to prevent was conjectural, not real, or at least not based on the evidence in the record.
The 37-page decision supplies other rationales, and I encourage you to read it in full (and check out Antitrust Review for its take). But should we agree with the court that the letters sent by the coach did not seriously influence the decision of 14-year old middle school boys to show up for high school football practice? And is it revealing that all of the boys who received the letter--signed by "Your Coach, Carlton Flatt"--showed up, or is that mere happenstance? We'll never know, but what do you think might have happened if one of the boys didn't show up--might his playing time or treatment by teammates have been affected when he matriculated to Brentwood? And are letters like the one above matters of public concern, or do they simply reflect the old adage "that's just the way it is"?
Posted By : Michael McCann
Goodnight, and Good Luck
Message posted on : 2006-05-08 - 00:07:00
My most sincere thanks to Mike McCann and the rest of the regular contributors for their support during this week. Their willingness to spend time advising me on these posts speaks volumes about the success this blog will surely continue to enjoy.
As my stay as a guest ends, I hope to clarify the quiet aspiration of these posts. My tone has most often been critical; examining the ways our athletes or our media presentation thereof fail to confront issues of discrimination and bias. Yet this is because sports no doubt carries an incredible potential to transmit cultural values. In other words, though we face difficulties today, these posts are aimed at the best in our athletes; in their ability to lead us by example into a better and more tolerant era. Sport can transmit bias but it can also transmit progress.
Sports figures, like sports events, lead double lives. I have written these posts in the hopes that our superstars choose to live these lives responsibly, as examples to aspire to rather than discount. In this regard as well, the contributors to this blog should be commended.
Goodnight, and good luck.
Posted By : Jeffrey A. Williams
On Strippers and Thugs, Part II: On Caricature
Message posted on : 2006-05-07 - 23:05:00
One word slipped into my earlier post on the Duke lacrosse scandal was "caricature." I rely on this term in responding to two critiques of that post. I rely also on a very simple observation: there are a lot of facts in this world.
On Thugs
One astute reader commented to me privately that some media outlets had, in fact, compared the athletes to "thugs." This connects also to the comment on my original post about the extent to which these players have been negatively portrayed.
I grant the details about the story are not flattering to the players involved. My basic point remains, however. Unlike some commentators, I feel like the coverage of the incident has been largely apologetic about the players' behavior. There seems a high degree of skepticism about the complaint. Unlike other incidents where athletes may be practically assumed to be guilty, these players have been generally excused for any misbehavior. Even if not guilty of rape, the behavior of these athletes is no less offensive than that of their peers who are routinely assumed to be guilty, to be "thugs."
On Strippers
Certainly, the fact that the women were exotic dancers was the basis for their physical presence at the party that evening. In that limited sense, commentators are correct that it is relevant. Yet this is an awfully thin description: it speaks little to the events surrounding the allegations and not at all to whatever events precipitated it. Specifically, if the claim is that the players are not responsible for her injuries, who was? What impetus brought her to perform at the house that night?
While considering these questions, it is also worthwhile to ask then why these individuals are "lacrosse players" or "athletes." If the notion is that her description as a "stripper" pertains only to the reason she was there, what does their athleticism really contribute to that story?
Factually, yes, the professional description is basically accurate. But there are many facts in this world, many facts to each event and the facts we select indicate how the story will be told. It is only that these details are selected, not that they are false.
Posted By : Jeffrey A. Williams
The Sentence of John Green
Message posted on : 2006-05-07 - 22:19:00
John Green, the man who "lobbed" the beer that provoked Ron Artest to enter the stand and escalate a brawl at the Palace at Auburn Hills, was sentenced Monday to 30 days and 2 years of probation. He plans to appeal the sentence, claiming it is unduly harsh compared to the punishment meted out on the players involved. None, including Artest, received any jail time.
Admittedly, if fees correspond even loosely to value, the athletes may have been able to acquire more able legal counsel. But however Green might disagree, he had always been presented by the prosecutors as the basic culprit in the incident. It was only in the popular media that the attention had been devoted to the images of a furious Artest storming around the Palace. It was the media, and us an audience, that created the "Ron Artest Fight" or "the Malice at the Palace."
Green's sentence merely reflects the culpability assigned to him by prosecutors, which is less than that assigned to Artest. Whether accurate or not, this assessment seems to differ dramatically from the culpability assigned to Artest in the media after the incident. As in the Duke incident, it is a question of renditions of the event in the media and during a trial. The popular story was, and appears to remain, what Green based his defense on and its failure within the legal process is the basis for his sentence.
Posted By : Jeffrey A. Williams
Stacking the Draft?
Message posted on : 2006-05-07 - 10:55:00
Pitchers and quarterbacks have a lot in common. They throw balls, needing accuracy and arm strength. They also need to communicate with teammates and often play singularly important roles in the game. They get a lot of media attention. They are also disproportionately white.
That was the conclusion for pitchers of the 2005 MLB Report Card from the University of Central Florida, published late last month. In considering how the various positions compare racially, Dr. Lapchick's program found only 3% of pitchers, 1% of catchers and 11% of infielders were African-American, compared to 26% of the outfielders. Dr. Lapchick acknowledged that Commissioner Selig has not influenced this disparity. In simple terms, minorities appeared "stacked" into some positions over others.
The Institute's most recent NFL Report Card was softer on the issue of stacking. But although the percentages are higher, the disparity remains. In 2004, Dr. Lapchick found 22% of NFL quarterbacks were African-American. But the percentages for running back, wide receiver and defensive back were all above 80%. I believe that only 6 of the 32 quarterbacks currently slated to start are racial minorities. Though it was a crude survey, my examination of the 2006 NFL Draft suggests a stacking problem. It appears that a disproportionate number of the white players taken in the first three rounds were either quarterbacks or else tight ends (a position historically associated with failed quarterbacks). The link also, of course, includes a front page picture of Matt Leinart (#10 overall) and not Vince Young (#3 overall).
Pitchers and quarterbacks have a lot in common. But considering how different the sports are, these positions are very different as well. The fact that they both stack up as they do suggests that at least some factors that contribute to stacking are social instead of sport-specific.
Posted By : Jeffrey A. Williams
Harrington's Gone, but the Whining (Not Winning) Continues
Message posted on : 2006-05-07 - 10:31:00
Yahoo's Dan Wetzel reports the news that the Detroit Lions have been banned from practicing for two days. The team's offense? Working players too hard:
Booth Newspapers originally reported that players were upset that April minicamp drills – where "contact work or use of pads" is not allowed – were too physical.
"The players were upset at the high intensity and aggressiveness demanded in the team drills and believed the coaching staff was going over the line," Tom Kowalski reported, citing a source.
And so, the players complained, the union and the league agreed and now they get two days off, with pay.
Is this the kind of thing about which sports unions should be taking action? Certainly, if this story gets attention in the MSM, it will look bad for the union and the persistent loser Lions players.
Posted By : Geoffrey Rapp
A Story about Stories
Message posted on : 2006-05-06 - 21:36:00
As a follow-up to previous commentary, I thought to remark on an incident, the story of Mark Sanchez, the USC quarterback recently arrested due to allegations of sexual assault. He has not yet been subjected to the scrutiny of other professional athletes involved in sex scandals. Contrast this to the Duke lacrosse scandal and query why these incidents are so different.
One reason, I suspect, is that the sports seasons are simply different. The college football season does not begin for several months; it is in that sense irrelevant whether the story is pertient to “sport.� If this occurred during the season, I suspect the reactions would be very different.
Would it be worse for a college quarterback to rape or sexually assault a woman during the football season?
If so, what does that suggest of our regard for college athletics and the crime of rape or sexual assault?
I feel this suggests, as others, a reluctance to view these incidents as an offense against the victim, or even the accused, but rather an offense against ourselves. It is as if our lacrosse season has been jeopardized, as if our football dynasty has been called into question.
Isn't this, invariably, the wrong response to an alleged crime committed by an athlete? There are no college football games being played right now. In that sense, at least, the story is our own. It is the story of how an individual, of our team, has been socially contrasted. Is it really a question of how they or their accusers fare, or is it simply a question of how we are impacted from the incident? Even if a man is falsely accused of sexual assault—which I do not pre-suppose Mark Sanchez is—isn't the lens we use to view these debacles indicting? Are not we asking how we were wronged--by asking why our quarterback or lacrosse team was impacted by these accusations?
Posted By : Jeffrey A. Williams
A Satisfied Client
Message posted on : 2006-05-06 - 15:00:00
Good luck to Lawyer Ron in this evening's Kentucky Derby. As far as I'm aware, the first racehorse ever named after a practicing lawyer. Of course, Judge Hines won the derby in 1903. There's also at least one famous lawyer named Racehorse.
In this case, Ron Bamberger, Esq., the namesake for Lawyer Ron, is also the trustee for the trust that owns the horse. A conflict of interest?
Posted By : Geoffrey Rapp
FIFA to Suspend Repressive Dictatorship for Soccer Committee Election-Rigging
Message posted on : 2006-05-06 - 12:19:00
The morally bankrupt Cambodian government is at it again. This time, rather than seeking to jail, murder and otherwise “disappear� critics of the regime, Cambodian President Hun Sen has engaged in unspecified political interference in the country's April 24 election of a lieutenant general commanding Cambodia's national military police force as the new President of the Cambodian Football Federation. Obviously, he was elected based on his soccer savvy, not his regime affiliation.
In response, soccer's international governing authority, FIFA, will likely seek to suspend the Cambodian team, as reported here. Replying to FIFA's threat of a suspension, Cambodia has apparently submitted a report justifying its conduct with respect to the election. If FIFA follows through on its threat, Cambodia will lose $250,000 in soccer-related aid. Cambodia is not amongst the teams that will be competing in this summer's World Cup, but it would lose its international soccer eligibility.
While international soccer rarely captures America's attention, it has always provided fascinating political and ideological melodramas. Unfortunately, the U.S. (Group E) and Iran (Group D), near stalemate on the nuclear issue, won't play each other in this World Cup unless both teams at least advance to the semifinals. The 1998 and 2000 matchups were memorable.
Posted By : Geoffrey Rapp
Athletes and Gambling: Who Cares?
Message posted on : 2006-05-06 - 07:15:00
If you haven't already heard, Charles Barkley on Wednesday announced that he has lost over $10 million in gambling over the years. What makes this announcement more disturbing than the $10 million lost is that Barkley doesn't think he has a gambling problem because he has enough money to cover his losses. In an interview with ESPN, Barkley made the following statements:
"It's not a problem. If you're a drug addict or an alcoholic, those are problems. I gamble for too much money. As long as I can continue to do it I don't think it's a problem. Do I think it's a bad habit? Yes, I think it's a bad habit. Am I going to continue to do it? Yes, I'm going to continue to do it. When I gamble I should be playing $1,000 a hand instead of $20,000 a hand, because if I played for $1,000 a hand I probably could lose $50,000 to $100,000 a hand instead of millions of dollars. And I've got to reach a happy medium because I've told all of the people in my life that first and foremost it's my money. I like to gamble and I'm not going to quit. I've just got to get it under control."
When I read this, my first reaction was that this has got to be a joke! Why would he announce this to the media? But this is hardly any laughing matter. This is a really unfortunate and very sad situation. By going on national television and making this announcement, Barkley is obviously pleading for help. My second reaction was that gambling among athletes is most likely much more prevalent and extensive than we think.
Barkley told ESPN that the "thrill of competition" has a lot to do with his desire to wager. On the one hand, that just sounds like an excuse or justification to keep gambling, because there's no true element of competition in gambling. Competition entails having some control over the ultimate outcome, as opposed to gambling whereby the house determines your fate (and it's weighed heavily in favor of the house). On the other hand, it's understandable why athletes are drawn to gambling. They view gambling as just another game that they can control (i.e. that they can "beat the house").
John Daly just went public in his autobiography to be released Monday that he has lost $50 to $60 million over the past 12 years. It's highly unlikely that Barkley and some of the other athletes who have gone public with their gambling problems are the only athletes losing millions (by way of both legal and illegal gambling). Professional athletes fit the ideal profile upon which bookies and casinos love to sink their teeth into (especially retired athletes because they have a lot more free time): high net worth, competitive and a feeling of invincibleness.
Barkley's and Daly's announcements got me thinking, where's the public outrage over gambling among professional athletes? For one thing, it's a much bigger and more serious societal problem and concern than steroid use, and it's detrimental to the health and well-being of the athlete as well. And as far as the "cheating" aspect, wouldn't athletes who gamble have a greater tendency to bet on the sport in which they play? Maybe they should be required periodically to take a lie detector test in which they are asked, "Do you or have you bet on the sport in which you play?" If they test positive, then maybe that should lead to further investigation by the league.
Congress, don't get any ideas....
Posted By : Rick Karcher
How do I become an expert pitcher? Don't try this (on your kids) at home
Message posted on : 2006-05-05 - 20:03:00
In their Sunday New York Times Magazine "Freakonomics" column this weekend, Levitt & Dubner will explore the question of how experts acquire their expert skill. The "teaser" post on the Feakonomics blog reveals that the column will focus on the research of psychologist Anders Ericsson (FSU), who offers "deliberate practice." The Freakonomics blog post also links to alternative hypotheses, such as the "relative age effect". That "effect," which has been documented in empirical research on hockey and soccer, is that youngsters who are a certain age but relatively older (because they were born earlier in the year) tend to be overrepresented among star athletes. The column (as usual) promises to be thought-provoking.
While deliberate practice can certainly be encouraged, will we soon see American parents trying to time childbirth to take advantage of "RAE effects" and promote athletic aptitude in their offspring?
Posted By : Geoffrey Rapp
Investigation Discovers College Athletes are Paid!
Message posted on : 2006-05-05 - 12:53:00
It has been reported that Reggie Bush and his family may have benefitted financially from Bush's status as a star college football player. The news has brought out the usual cries from reformers who believe college athletes deserve some fair compensation. The NCAA continues to resist, citing the amateurism of what it quaintly terms the “student athlete.�
I'm not sure how this debate should be resolved, but I am sure that both sides are wrong about their fundamental assumption. The truth is that college athletes are compensated, some extensively, right now.
Most high-level student athletes receive a full college scholarship. This is no small benefit; just ask the parent of any teenager. The typical athletic scholarship includes tuition, which at higher-end schools can easily surpass $25,000 per year. An athletic scholarship also includes free lodging, often in nicely-appointed athletes-only dorms, or otherwise in the university's best dorms or apartments. The athletes get free meals, typically at the “highest level� of today's college meal plans, which are a long way removed from the “mystery meat� specials of yesteryear. Free books, student fees, and the like add the little extras to the package. The total estimated cost to attend the better of the nation's colleges now adds up to over $40,000 per year. That means a college scholarship is worth in the neighborhood of $160,000 over a college career, all tax free. That's real value for an eighteen-year-old whose next best job would in most cases start near the minimum wage.
What else do our amateur student-athletes receive? A college degree, or at least a good chance at one, which degree (and presumably the knowledge behind it) translates into a lifetime of superior earnings. Particularly for those athletes whose academic potential is modest, a degree from a quality university represents a significant enhancement to expected earnings. These students also receive top-level coaching and training facilities, a consequential benefit to serious athletes. Finally, for those in one of the two major college sports, football and basketball, college athletics affords them a chance at exposure and stardom. Exposure on the playing field can give athletes some measure of local or national fame, resulting in immense college fun and improved post-college job prospects. More significantly, stardom gives them a tangible chance at the athlete's biggest prize, a lucrative and glamorous post-college career in professional sports. That's a valuable lottery ticket, one so prized that thousands of youth will train countless hours pursuing the dream. Schools that feed athletes to the pros advertise this substantial job benefit to potential recruits.
Do high-schoolers labor for years and compete strenuously against each other for what amount to unpaid servitudes, as both the NCAA and the reformers impliedly believe? Of course not. Athletes see the obvious compensatory elements of college sports, even if the NCAA and the reformers cannot. An athletic scholarship? It's money.
Coming next: an examination of the dubious assertion that equity or fairness demands that the millions of dollars in revenue generated by these athletes should be in some part distributed to these athletes.
Posted By : TSLP
Air Force Doug
Message posted on : 2006-05-05 - 06:46:00
A couple of days ago, I questioned why public resources were invested in ensuring that Doug Mirabelli make it from Logan Airport to Fenway Park to start a game pitched by knuckleballer Tim Wakefield (Mirabelli received a police escort, allegedly paid for by the Sox, but obtained the same day and clearly reflected preferential treatment accorded to the Sox). Now we read this in the Boston Herald:
The private jet carrying Red Sox savior Doug Mirabelli from the Left Coast to Fenway the other night got priority clearance to land ahead of some 20-odd commercial flights headed for Logan at the time. Nice to have fans in the control tower!
I'm sure people will again criticize me for not seeing the social importance of Red Sox games, but what kind of message is being sent here? How about all of the air travelers who may have been delayed--there were "some 20-odd commercial flights" that apparently fell behind in landing priority--were those people simply irrelevant? Was their time less important than that of a baseball player who had just been traded? I would bet that there were doctors and police on those flights. And if we are going to make value-judgments about people's social worth (as was clearly done for Mirabelli), shouldn't their time have been considered more "important"? And what about, I don't know, security issues with air travel? Were they at all implicated by Mirabelli's special flight status? I would hope and expect that they weren't, but needless to say, Logan Airport is the last airport that should be fooling around with security.
Posted By : Michael McCann
Why Would A Pitcher Take Steroids?
Message posted on : 2006-05-04 - 16:09:00
Amy Shipley wrote an interesting article that appeared in Sunday's edition of the Washington Post about steroid use among pitchers in baseball ("Do Steroids Give A Shot in the Arm?"). Most medical experts are generally in agreement that steroid use (1) is not going to increase velocity, (2) restricts range of motion, and (3) weakens ligaments, tendons and connective tissue. Shipley quotes one veteran baseball trainer who summed up fairly well the likely impact that steroid use has on pitchers:
"One of the things steroids do is build mass," said Larry Starr, a baseball trainer for 30 years for the Reds and Florida Marlins who has been credited for the rise in strength training in baseball during his years in Cincinnati in the 1970s. "The second thing they do is help you recover quicker. The third thing they do is give you a feeling and ability to go back into the weight room and lift more. The question is, are those criteria important to making a pitcher better?
So why do pitchers take steroids if there are no benefits to taking them?
First, I believe that ballplayers want to bulk up because they think they have to do so in order to compete and succeed. An analogy can be drawn to the superstitiousness of athletes (especially baseball players). They will do whatever it takes to succeed, even if it defies logic. In the movie Bull Durham, the pitcher (played by Tim Robbins) was told by Susan Sarandon that he would pitch better if he wore her garter, so he started wearing it under his uniform when he pitched. Later in the movie, Kevin Costner ("Crash") tries to explain to Sarandon the mindset of a ballplayer: "If you think you're playing well because....you wear women's underwear, then you are!" In the minors, I never wore any women's underwear, but I did eat at the same Arby's restaurant for lunch 4 days in a row when I was on a 4-game home run streak.
Secondly, some dietary supplements contain banned substances, including steroids, that can easily be purchased over-the-counter at nutrition stores or on-line. One minor league player interviewed by Shipley stated that he unwittingly took a banned dietary supplement that he was able to purchase on-line at the recommendation of friends. Perhaps there's a sentiment or belief among players that if you can legally buy it in a store or on-line, then it's not, or at least shouldn't be, a banned substance.
Posted By : Rick Karcher
A Minor Inconvenience?
Message posted on : 2006-05-04 - 11:27:00
As a resident of a Triple A city, I may be more attuned to minor league baseball issues than the average sports fan. Still, it's been hard to notice this spring that minor league umpires are on strike. The Union negotiating team reached agreement with the leagues on a 12% pay raise for umpires, which the union rank-and-file rejected. Sure, a 12% pay raise probably sounds pretty good to most of us. But even the highest paid Triple A umpires make just $3400 a month for a five-month season (which I'm fairly sure puts them at or close the poverty line). While there might be opportunities for off-season employment, they can't be all that lucrative or meaningful.
But the really striking thing about the minor league umpires' strike is how little it has affected the season to date. Unlike law professors, who won't cross hotel worker picket lines to have their annual conference in San Francisco, minor league baseball fans haven't stayed away from stadiums to show solidarity, although some have picketed. While I'm guessing major league umpires couldn't legally strike in solidarity (the major league umps have expressed support), they could be open to attempting to redefine their own bargaining unit to include minor league umps.
Unlike when players go on strike, the minor leagues seem perfectly willing (and financial able) to continue operations using “scabs� and replacement umps. While many sports fans think sports unions have become too powerful, places of refuge for the likes of T.O., Sprewell and Artest, that certainly isn't true about the minor league umps' association. It may have been a union certification drive at an umps' union that first verified the applicability of the NLRA to baseball, but the umps haven't enjoyed even a small amount of the progress players' have enjoyed in the collective-bargaining era of professional sports.
Posted By : Geoffrey Rapp
Take Me, Out, to the Ballgame
Message posted on : 2006-05-04 - 08:08:00
In his excellent article about the life of Emile Griffith, Gary Smith explores a boxer whose sexuality contributed to a brutal boxing fatality after his opponent called him a “maricón.� Smith notes the editorial decision to report the translated comment as meaning “anti-man,� a concept I seek to explore in discussing open homosexuals in contemporary sports. “Maricón� is more commonly translated as a pejorative for homosexuals like “faggot� or maybe just “sissy.� but the editor's decision makes sense from a stereotypical perspective. The accusation did assail Griffith's masculinity, labeling him an “anti-man� and compelling him to respond viciously in the ring.
There have been openly homosexual athletes and there is growing acceptance today of homosexuality across various aspects of society. Yet certain enclaves, like sports and the military, remain outside the reach of the open homosexual. Surveys suggest a close connection between athletic rigor and heterosexuality remains: there are still anti-men today.
Yet the more cogent observation, seen recently in the practical non-story of Cheryl Swoops' sexual announcement, is that lesbianism does not engender anti-women. I suspect the reason is that the female athlete is already anti-women. In marked contrast to the contained whispers of homosexuals amongst their male counterparts, there is a broad stereotype developing about the lesbian athlete. In a fascinatingly conflicted survey, 20% agreed there were “many� lesbians in sports. Female athletes face a demand, sometimes from their coach, to maintain their athletic abilities while avoiding any appearance of lesbianism or masculinity. The indifference demonstrated for the openly lesbian athlete is a combination of the lack of interest in female athletics and the perceived congruity between female athleticism and lesbianism.
I wonder if the trailblazer for the openly homosexual male athlete might be neither of those things.
Posted By : Jeffrey A. Williams
The Return of "Ruby Brown"
Message posted on : 2006-05-03 - 23:29:00
Update: Earlier today, I posted a poem by Langston Hughes alongside my post on the Duke scandal. When a commentator queried its role on the sportslawblog, I retracted it until I could provide some explanation of its purpose.
No doubt, I mean to analogize the story of “Ruby Brown� to the lacrosse incident. Again, however, the analogy is about descriptive details and not declarative conclusions: I have not attempted to assess the criminal culpability of the accused rapists. Many of the players, and specifically the two presently accused of the rape, are both “white men� and “habitues of the high shuttered houses.� As for the victim, I take the detail of “kitchen� work and her characterization as “young and beautiful and golden like the sunshine that warmed her body� as illustrations of the “sinister� turn of the story.
My post on the lacrosse scandal was all about telling stories; the stories told of the victim and the accused as well as the stories told of accused African American athletes of comparable age and prior misdeeds. This is the story I choose to tell:
"Ruby Brown" by Langston Hughes
She was young and beautiful
And golden like the sunshine
That warmed her body.
And because she was colored
Mayville had no place to offer her,
Nor fuel for the clean flame of joy
That tried to burn within her soul.
One day,
Sitting on old Mrs. Latham's back porch
Polishing the silver,
She asked herself two questions
And they ran something like this:
What can a colored girl do
On the money from a white woman's kitchen?
And ain't there any joy in this town?
Now the streets down by the river
Know more about this pretty Ruby Brown,
And the sinister shuttered houses of the bottoms
Hold a yellow girl
Seeking an answer to her questions.
The good church folk do not mention
Her name any more.
But the white men,
Habitues of the high shuttered houses,
Pay more money to her now
Than they ever did before,
When she worked in their kitchens.
--[The Collected Poems of Langston Hughes 73 (Rampersad, ed. 1994)]
Posted By : Jeffrey A. Williams
A Future Nationals Dynasty in the Making?
Message posted on : 2006-05-03 - 19:57:00
MLB finally made the announcement today on the new ownership group. Stan Kasten, an investor in the Lerner group and former president of the Atlanta Braves, Hawks and Thrashers, will be responsible for the day to day operations.
Kasten, who received his law degree from Columbia Law School, knows the formula for creating a successful franchise. Bill Shanks authored an interesting book entitled, Scout's Honor: The Bravest Way To Build A Winning Team, which explains how Kasten created the Braves dynasty that it is today. I predict Kasten will do the same over time with the Nationals.
Scout's Honor was sort of marketed as the response to Moneyball, written by Michael Lewis. Moneyball revealed the Oakland Athletics' philosophy of using objective measures and statistics to evaluate talent and project future player performance. The Braves, on the other hand, tend to emphasize the subjective assessment of players by putting full faith and confidence in their scouts' evaluations.
Over the past 15 years or so, the Braves have been very successful in the draft because they are good at selecting players who have more than just tools and talent; they have good "makeup". Makeup is a term that drives statisticians (and others insistent upon objective measures) crazy! Even the term itself is difficult to objectively define, but I think of it as a whole combination of individual characteristics such as drive, determination, personality, how one carries himself on and off the field, how one reacts in certain situations, whether he's a winner, whether he thrives on competition such that he wants to be the guy up at the plate with the score tied in the bottom of the ninth with two outs and a runner on second.
Another reason I believe the Braves have been so successful is because they have a very low turnover rate in the front office and coaching staff. Many of the front office personnel and scouts, as well as major and minor league coaches, have been with the Braves for over 15 years -- very rare in society today for any organization in any industry. The staff is successful at molding young minor league players into successful major league players who are proud to wear the Braves uniform and who (with a few exceptions) tend to stick around for a while. The organization likes to refer to it as "the Braves' way".
These are not just philosophies that apply to a sports organization; these are "business" philosophies that any organization in any industry can learn from. In other words, don't just go out and throw top dollar at the people with the best "statistics" on their resumes who are going to leave you at the drop of a hat for the next organization that does the same. Find people with good "makeup" that are going to stick around for a while. Kasten will implement these same philosophies with the Nationals and in a few years we will be talking about "the Nationals' way".
Posted By : Rick Karcher
The Myth of The Student-Athlete: The College Athlete as Employee
Message posted on : 2006-05-03 - 16:25:00
Professors Robert A. McCormick and Amy C. McCormick of Michigan State University College of Law have co-authored an excellent new law review article entitled The Myth of the Student-Athlete: The College Athlete as Employee, 81 Washington Law Review 71 (2006). It may be downloaded at this link (the link goes to the abstract, and you can download the article for free through "Document Delivery" -- all you will need is an SSRN account, which is free). The article argues that college athletes should be considered employees under the National Labor Relations Act ("NLRA"), including under both common law and statutory standards for classification of an employee. In the introduction, they write:
By creating and fostering the myth that football and men's basketball players at Division I schools are something other than employees, the NCAA and its member institutions obtain the astonishing pecuniary gain and related benefits of the athletes' talents, time, and energy--that is their labor--while severely curtailing the costs associated with such labor.
Their abstract reveals a profound and fascinating implication of treating college athletes as employees:
As employees under the NLRA, these athletes are entitled “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.� Consequently, they will be able to acquire bargaining power through collective association and to negotiate their terms and conditions of employment, including wages not arbitrarily limited to the level of athletic scholarships.
Think about that: According to Professors McCormick, college athletes should be able to collectively-bargain their rights under federal law. Certainly, that kind of collective-bargaining would forever change college sports, and greatly reduce the economic explotiation of student-athletes and their families
Posted By : Michael McCann
Lerner Family Poised to Purchase Nationals
Message posted on : 2006-05-03 - 08:57:00
Over the objections of DC City Councilman Marion Barry and others, Major League Baseball appears poised to announce that Maryland real estate tycoon Theodore N. Lerner and his family have been selected from amongst bidders for the Washington franchise. The Post story is here. Former Atlanta Braves President Stan Kasten would oversee day-to-day operations.
UPDATE: By conference call this afternoon, Selig made this official.
Posted By : Geoffrey Rapp
Two NFL Franchises for LA?
Message posted on : 2006-05-03 - 08:35:00
California Governor Arnold Schwarzenegger was in Texas yesterday to ask the NFL to locate not just one, but two NFL teams in the Los Angeles area. LA's on-again, off-again relationship with the NFL has provided some of sports law's most memorable cases. I have little doubt that the relocation of an existing franchise or expansion of a new franchise to LA will spawn at least some litigation, whether relating to an eminent domain effort by a city losing a team (New Orleans?) or the expected $800 million stadium construction costs. Most likely, as suggested here, parties who could stand to profit from renovating the LA Coliseum will challenge any effort to place an new NFL stadium in downtown LA. I also suspect that Al Davis will find a way to get involved.
MSNBC's Michael Ventre is skeptical that LA can get even one team, much less two. In particular, Ventre suspects that the “quixotic� request for two teams, when so far no business group has emerged to secure financing for even one team, may end up scuttling the entire effort of bringing professional football to the region.
Posted By : Geoffrey Rapp
The On-the-Record Facts: On Strippers and Thugs
Message posted on : 2006-05-03 - 08:20:00
In discussing the Duke lacrosse scandal last week, Bill O'Reilly restricted the dialogue on his program to the “on-the-record facts.� In referencing this “record,� I believe O'Reilly acknowledged the public media trial that often precedes the actual legal trial. These trials differ, however, not only in the facts asserted and proven but also often in the perspective taken. Specifically, the public media trial of the Duke lacrosse incident has often seemed to invert the notion of criminal culpability. The story is often one of two “strippers� who have accused three men and not the story of three “thugs� who have assaulted and raped a woman.
I think it clear that these women have been portrayed as “strippers,� sometimes “exotic dancers� and less frequently "hos." Shawn Cunningham, a colleague of the victim's, ably acknowledged this portrayal. But what is the point of it? Sentasionalism is all well and good, but why is this so sensational? Susan Estrich has suggested that entertainers like this were once thought incapable of being raped. If it is a milder form of the argument that persists today, it is no less vile. Their profession has nothing to do with validating any consent.
Similarly, I would note that neither the Duke athletes nor their behavior has been connected to any sense of “thuggishness.� I can forego the allegation of rape entirely and still present an “on-the-record� caricature of the men at the party. One faces charges for an apparently homophobic assault. Another has apparently violated the terms of an agreement with the D.A. from a previous incident. Several more have faced minor charges, including drinking under age, and Duke itself has chronicled a party of 5 and arrive to find 40. When they begin, they apparently encounter racist remarks and a threat that they will be sodomized with a broomstick. As they flee, one is allegedly asked to thank her grandfather for the white Duke players' “nice cotton shirt.� But, presumably because the lacrosse players have never written any rap albums, these athletes are not rendered “thugs.�
Regardless of actual guilt, the accused players and at least some of their teammates are no hapless, innocent victims. If being employed as an exotic dancer is supposed to be some kind of mitigating circumstance, the boorish behavior of these athletes is as well. Yet we are told of one and not the other and very likely in some sense because the media believes that is what we want to hear.
There is a record being developed in the media presentation of the Duke lacrosse scandal—and it is indicting.
Posted By : Jeffrey A. Williams
Deep in the Heart of Atlanta
Message posted on : 2006-05-02 - 09:30:00
When Congress passed Title II of the Civil Rights Act of 1964, it justified the legislation based on the discriminatory burden on interstate commerce generated by the inability of racial minorities to travel for lack of reliable public accommodation. Where an establishment like the Heart of Atlanta Motel could discriminate racially, minorities encountered “exclusionary practices… nationwide.� But in defending Title II and exploring these conditions, Justice Clark and his brethren had little reason to scrutinize the motives of these accommodations. Why was the Heart of Atlanta Motel racially discriminatory? Why did it forgo the profit to be gained from minority customers?
One explanation could certainly be that the owners of the Motel fostered negative stereotypes about racial minorities. These could be very overt or very subtle, explicit or implicit.
Another explanation could be that the other customers fostered these stereotypes. Perhaps the owners did as well, but not to the tune of the cost of a room. Filling an empty room with racial minorities could simply cost them in that many more empty rooms.
Suppose it is the latter and only the latter; it hardly seems salutary to deny racial motivations and merely replace them with economic motivations on the basis of race. Between these two explanations, that is all that is at stake.
How different then is the stadium from the motel? Not very, of course, since the stadiums themselves appear to be public accommodations under Title II. And how different are the teams and leagues that fill the stadiums? Their bottom line remains the same. If a race-based decision will save them money, these entities possess the same incentives to make that decision; the same decision not only that the motels and restaurants made, but that the leagues had made for themselves for so many years.
Biases are quieter today than they were in 1964 Atlanta, in many at least. Yet denying a role of bias in sports-marketing seems to either deny the role of bias in contemporary American society on the whole or else to suppose some kind of stereotype-switch that turns off at the ticket gate. We are a nation with biases, perhaps in some ways uncontrollably so. Sports entertainment reproduces these biases on a grander scale. It is the difference between the Heart of Atlanta and the heart of the nation.
Posted By : Jeffrey A. Williams
Agent Files Complaint Against Boras
Message posted on : 2006-05-02 - 07:44:00
I want to thank Mike and Greg for the invitation to be a regular contributor on the blog, and I am looking forward to working as a team with both of them and Geoff.
One of my favorite sports law topics is misconduct involving sports agents. Jerry Crasnick reported Sunday on ESPN.com that Jim Munsey, the agent for Atlanta Braves catching prospect Jarrod Saltalamacchia ("Salty"), has filed a complaint with the union against Scott Boras for soliciting his client ("Agent says Boras' group 'stalking' his client"). Crasnick is also the author of an excellent book about the agent business in baseball entitled, License to Deal, which is a must read for anyone interested in becoming a sports agent representing baseball players.
According to the ESPN.com article, Munsey feels that Boras has violated MLBPA agent regulations and Munsey has even hinted that Boras is intentionally interfering with the representation agreement that Munsey has with Salty. But the reality is that solicitation of players -- those already represented by an agent and those who are not -- is commonplace in the industry. In fact, contrary to Munsey's assertions, the union's agent regulations permit agents to solicit represented and unrepresented players as long as the player is not provided "materially false or misleading information," nor provided "money or any other thing of value" as an inducement to gain the player's representation. (emphasis added) [Note that apparently the union feels that it's o.k. for agents to lie to prospective clients as long as it's not a "material" lie.] In addition, any claim for interference with contractual relations fails under the test laid out in Speakers of Sport v. ProServ (7th Cir. 1999), which requires that the soliciting agent actually engage in a "scheme to defraud" the prospective client.
What's interesting to me about the holding of the ProServ case is that the agent-player relationship has been recognized as a fiduciary relationship by law. Indeed, even the union agent regulations expressly state it as such. Typically, the agent in such a fiduciary relationship is held to a higher standard of care, and client solicitation by the fiduciary is considered unethical (e.g. the attorney-client relationship). The very nature of a fiduciary relationship involves the principal (the player) entrusting his fortune, reputation, and legal rights and responsibilities to his agent whose actions, for better or worse, vitally affect the economic well-being and reputation of the principal. The rationale for prohibiting client solicitation by individuals acting in a fiduciary capacity is quite simple: There is a potential for abuse -- i.e. undue influence, overreaching and intimidation -- inherent in direct in-person or telephone contact by such individual with a prospective client known to need services. But for some reason it's allowed by sports agents.
I discuss this issue at length in my recent law review article on agent misconduct, but there is no question that solicitation is extremely burdensome on players. Crasnick even spoke to Salty about it:
Saltalamacchia, reached by phone, said that a Boras representative named Terrence Smalls contacted him "close to 10 times" last year between Myrtle Beach and a subsequent stint in the Arizona Fall League. He said a second Boras employee -- who he could not identify by name -- recently approached him with an invitation to go to dinner. "I'm happy with the agent I have," Saltalamacchia said. "I love Jim to death. I tell these guys, 'If there comes a time when I'm not happy, I'll contact you and we'll go from there.' But it's one of those things where every day you go to the ballpark and a different guy wants to meet you and talk to you and sit down and have lunch. You're there just to play ball."
The Doug Mirabelli Story: Police Escorts, Pro Athletes, and Tax Dollars
Message posted on : 2006-05-01 - 23:10:00
Earlier today, the Boston Red Sox traded for catcher San Diego Padres catcher Doug Mirabelli. Mirabelli had played for the Red Sox between 2001 and 2005, during which time he was essentially the personal catcher of knuckleballer Tim Wakefield. The Red Sox had been using Josh Bard as Wakefield's personal catcher this season, but 10 passed balls later, the team decided to get Mirabelli back.
And the Sox wanted Mirabelli back immediately. Wakefield was starting tonight, against the Yankees no less, with a game start time at 7:05 PM. So after the trade was finalized, Mirabelli flew into Boston Logan Airport, but his plane didn't land until 6:48 PM. And yet somehow, someway, he was able to get from Logan to Fenway Park by 7:00 PM, and was then in the starting lineup (and for those of you who are unfamiliar with Boston, Logan to Fenway Park in 12 minutes is basically impossible, even without traffic at 4 a.m., let alone during rush hour on a Monday night).
So how did Mirabelli pull off this miraculous traveling feat? Did he happen to catch a cab driven by the most sagacious of cabbies--the one who knows all of the roads less traveled? Or did GM Theo Epstein pick him up and drive like a maniac? Or did he (perhaps fittingly) illegally drive through an often-closed Ted Williams Tunnel and thus save time?
No. Mirabelli was provided a police escort that curried him out of Logan, into a jeep, and then over to Fenway Park. The escort apparently cleared the roads and drove really fast. After the game, which the Red Sox won, Mirabelli said, "I had like six seatbelts on . . . they were going about 100 MPH."
That's great. But was the escort an appropriate use of tax dollars? And was it an appropriate use of the state police's time? I'm as much of a Sox fan as anyone, but the police escort strikes me as an odd use of public resources. I mean, it wasn't like Mirabelli was carrying a heart needed for a transplant. Nor was he involved in a fact-pattern akin to something you might see on 24. He was just a baseball player traded earlier in the day.
Were there simply no crimes going on in Boston that satisfying Tim Wakefield's catcher preference could have been considered a good use of public resources?
Posted By : Michael McCann
Steve Nash: World's Most Influential Athlete?
Message posted on : 2006-05-01 - 21:35:00
Time magazine's list of the 100 most influential people in the world includes, as far as I've been able to glean, just three athletes: Most notably, Steve Nash, the Phoenix Suns point guard (Sadly, all of the Sports Law Blog team has been snubbed by Time, something we will surely aim to remedy next year).
While it's hard to take issue with the caliber of Time's guest correspondent, “Sir� Charles Barkley, no where in his brief ditty does Sir Charles actually opine that Nash has had any particular influence. In fact, Barkley indicates that “maybe� Nash will “inspire a whole new generation of kids to pass out of double teams the way he does.� Perhaps true that Nash, unlike the Marbury/Iverson model, represents what a point guard should be. But clearly, watching the playoffs, Nash has not been influential. And until that new generation starts passing, I think it premature to wax ineloquent about Nash's influence.
The other athlete included is Olympic speed skater Joey Cheek, who donated his bonus money (admirably) to a charity group. Again, while admirable, how influential has his example been?
I'm more optimistic about Time's third influential athlete, Michelle Wie, who has the distinction of attending my high school. Also, she's pretty good at golf.
Posted By : Geoffrey Rapp
Wanton and Willful?: “He did it on purpose, dude.�
Message posted on : 2006-05-01 - 21:05:00
As readers are aware from earlier postings on the liability of professional athletes to other athletes injured in the course of a game, the general rule is that mere negligence is not actionable in connection with on-court torts (Wisconsin at one point was the exception, allowing recovery for negligence but considering the nature of sports amongst the circumstances affecting reasonableness). Some courts get to this result via limited duty, while others focus on (primary) implied assumption of risk. Instead, on-court or on-field action is only actionable if it amounts to recklessness, intentional wrongdoing, or wanton and willful conduct.
The line between negligence on the one hand and recklessness / wanton & willful behavior on the other is never obvious to students of tort (or sports) law. Wanton and willful behavior may suggest a “dark heart,� although the Restatement (Second) Torts merges “recklessness� with wanton & willful misconduct. Recklessness, as against negligence, involves a higher level of risk and a more substantial potential harm.
A fairly obvious example of wanton and willful on-court behavior is Reggie Evans's below-the-belt grab of Chris Kaman in Game 4 of the Clippers-Nuggets series. Kaman has called for action; he should simply file suit to recover for violation of his personal space. I found the NBA's “family friendly� version of the story an interesting example of groupspeak.
P.S. Thanks to Mike & Greg. I'm glad to be here!
Posted By : Geoffrey Rapp
Sports Law Blog Grows: Welcome Rick Karcher and Geoffrey Rapp
Message posted on : 2006-05-01 - 17:06:00
We are excited to announce that Rick Karcher and Geoffrey Rapp are joining Sports Law Blog as contributors, effective immediately. They need no introduction, but Rick is an assistant professor of law and director of the Center for Law and Sports at Florida Coastal School of Law. His sports law expertise includes the study of NCAA regulations and the regulation of professional agents. He also played professional baseball in the Atlanta Braves organization. Geoff is an assistant professor of law at the University of Toledo College of Law, where he teaches sports law and homeland security law, among other subjects. His other areas of expertise include corporate law and financial market regulation.
We will continue to feature the excellent commentary of guest bloggers, and we're grateful for all of their contributions (and similarly, we're grateful for all of those who comment on the Blog). With four regular contributors, we hope to provide more frequent content of high quality.
Thank you for reading Sports Law Blog, and please join us in welcoming Rick and Geoff.
Michael McCann & Greg Skidmore
Posted By : Michael McCann
Political Pitch: My Country, 'Tis of Thee
Message posted on : 2006-05-01 - 09:04:00
My sincere thanks to Mike and Greg for giving me this opportunity. I hope to use this space to speak casually but directly about discriminatory issues in sports culture.
Tomorrow, I will use a classic example from civil rights jurisprudence to illustrate a general tendency towards discrimination by sports entities. In the next few blogs, I hope to use some recent events to illustrate more particular discriminatory themes. In the final contributions, to enjoy a good experiment, I will limit posts to events over the period of time of these blogs. If I am right, I will not lack material.
To begin, I offer a seemingly benign example of the cultural impact of sports: Vice President Cheney's throwing of the first pitch at the home opener of the Washington Nationals.
The physical act of pitching a baseball is a sports event. Yet it can also be described scientifically, in terms of velocity, gravity and torque. Even here, the event lives multiple lives.
No less, sports events routinely live double lives as sports competitions and political and cultural moments. The conflicting choruses of cheers and boos that Vice President Cheney encountered at the Nationals' opener were political after all; I doubt anyone would assert they corresponded to the athletic quality of the pitch itself. Sport is often imbued with this political character. Why else would it be our politicians and not our poets or physicists throwing these pitches? And why else would sport matter quite so much?
In the ancient and modern Olympics, in current events surrounding Iranian soccer—even in the origins of the word “partisan� itself—the political and cultural force of sport traverses political and cultural boundaries like the State. Broadly assessing this interaction of sport and culture is beyond the scope of these entries. Though the cultural force of sport is no peculiar American phenomenon, I hope in the next entries to illustrate the impact of some of the peculiarities of American culture.
Posted By : Jeffrey A. Williams
Leinart's Folly? Knowing When to Say When
Message posted on : 2006-04-29 - 14:18:00
Had USC quarterback Matt Leinart declared for the 2005 NFL Draft, it is widely-presumed that he would have been the first overall selection, with the San Francisco 49ers taking him instead of Utah quarterback Alex Smith. In that alternative history, Leinart would have signed for at least what Smith received (6 years, $49.5 million, including a $24 million signing bonus, which is guaranteed money).
But instead, Leinart chose to stay for a fifth year at USC, which had just won a national championship. He reasoned his decision on how much he loved it at USC and the opportunity to win another Heisman Trophy. Many fans praised him for his loyalty. Plus, having grown up in the middle class Californian community of Santa Ana, Leinart may not have had the same immediate financial demands that many similarly-situated players have (although, other than location, I don't know of Leinart's particular upbringing).
Today, while watching the 2006 NFL Draft on ESPN, I watched an increasingly-dejected Matt Leinart sitting in the "Green Room," staring away in disgust as other players were selected ahead of him. ESPN might as well have called it the "Matt Leinart Cam," since it devoted more attention to his reaction than to reaction of those players selected ahead of him. Even worse, Chris Berman & friends had a field day commiserating over Leinart's plight, especially when the Tennessee Titans--whose offensive coordinator, Norm Chow, coached Leinart at USC--took Vince Young instead. And then there was Suzy Kolbern's awkward interview with Leinart's obviously-dispirited agent, Tom Condon, who repeatedly spoke of "getting it over with." The whole escapade may have made for compelling TV and good ratings, but it was done at the expense of a 22-year old and his family. And it lasted until Leinart was chosen 10th overall by the Arizona Cardinals, some 100 minutes after the draft began. But the humilation didn't end there: as ESPN's national audience watched, Leinart then had to answer Kolbern's uncomfortable, skeptical questions about why he may have dropped so far in the draft.
But more than embarrassment, Leinart lost a lot of money. Instead of signing at least a $50 million contract with a $24 million signing bonus, Leinart projects to earn slightly more than what the 10th pick from the 2005 Draft, Mike Williams, signed for ($13.5 million and a signing bonus of about $1.5 million). Plus, instead of playing in San Francisco, where his endorsement income might have been extraordinary, he now goes to a more obscure setting in Arizona. And instead of playing for the storied 49ers and following in the footsteps of Joe Montana and Steve Young, Leinart will instead play for the Cardinals, which have had one of the worst yearly attendance records in the NFL and do not enjoy an inspiring history from which to draw. One might also argue that Leinart's pro career will be one year shorter, although that is speculative for a number of reasons.
Now, I'm sure Matt Leinart enjoyed his last year at USC. He was the proverbial Big Man on Campus, and since he only took one class (ballroom dancing), he undoubtedly had a lot of time to enjoy that status. He also hung out with A-List celebrities and allegedly dated Alyssa Milano. Donald Trump even took a personal interest in him, and Nick Lachey wanted to be his roomate. So life was probably quite good, and he therefore did obtain "value" in a subjective sense by remaining in school.
But was it worth a $40 million difference in contract value, and perhaps $23 million in guaranteed signing bonus money? And was it worth his star falling so hard and so publicly in today's draft? And was it worth passing up an opportunity to play in San Francisco? I'm as much of a fan of Alyssa Milano as any guy, and I'm sure it would be cool to hang out with Jim Carey and Muhammad Ali, but . . . Matt Leinart gave up a lot today.
Posted By : Michael McCann
DePaul Sports Law Symposium
Message posted on : 2006-04-27 - 16:51:00
The 2006 Annual Sports Law Symposium will be be held tomorrow at DePaul University College of Law in Chicago. It will be hosted by the DePaul Journal of Sports Law and Contemporary Problems. I am happy to be speaking at the Syompsium, and here is the speakers' schedule:
• Morning Panel 10:00 a.m. – 12:00 p.m.
Legal Issues Surrounding Professional Sports Venues
MODERATOR
Robert Buch, Seyfarth & Shaw
Panelists:
G. Kevin Conwick, Holme Roberts & Owens
Adam Klein, Katten Muchin Rosenman
Frank Mayer III, Buchanan & Ingersoll
• Afternoon Panel 1:30 p.m. – 3:30 p.m.
An Examination of Recent Collective Bargaining Agreements in Professional Sports
MODERATOR
Lester Munson, Legal Analyst and Writer for Sports Illustrated
Panelists:
Dennis Cordell, Former Counsel for NFL Coaches Association and President of Coaches, Inc.
Michael McCann, Law Professor at Mississippi College School of Law, member of Maurice Clarett's Legal Team, contributor to the Sports Law Blog
Robert McCormick, Law Professor at Michigan State University, member of Maurice Clarett's Legal Team
Alan Milstein, Sherman Silverstein Kohl Rose & Podolsky, member of the Maurice Clarett Legal Team
Michael Wall, Chief Legal Officer for Delaware North Companies, Inc - Boston and Boston Bruins
• Breakout Sessions 12:45 p.m. – 1:15 p.m.
Anatomy of a Stadium Deal: Frank Mayer III
Breaking Into the Industry: G. Kevin Conwick, Dennis Cordell, Michael Wall
Hosting Public Golf Tournaments: Robert Markionni, Chicago District Golf Association
Thanks to Nick Wurth, Symposium Editor of the DePaul Journal of Sports Law and Contemporary Problems, for organizing this event.
Posted By : Michael McCann
Ballpeace: Doug Mientkiewicz and Red Sox Reach Agreement on Baseball
Message posted on : 2006-04-25 - 22:03:00
The year-and-a-half long legal battle between the Boston Red Sox and former first baseman Doug Mientkiewicz over the ball from the final out of the 2004 World Series is over. Mientkiewicz and the Sox have agreed that the ball will go to the Baseball Hall of Fame, where it will remain, forever.
Last November, the Sox filed a lawsuit against Mientkiewicz, claiming that the team owned the ball. The Sox dropped the lawsuit after Mientkiewicz agreed to an independent mediation of the dispute.
The New York Times' Murray Chass (a Yankees fan) believes that Mientkiewicz had the strongest claim to the ball, while the Red Sox had the weakest:
The [Sox] claim of ownership was highly questionable. The commissioner's office supplied it, and the game was not played at Fenway Park. It was in St. Louis. Selig did not want the used ball back, and the Cardinals certainly did not want it as a reminder of their ignominious sweep by the Red Sox. Based on precedent, Mientkiewicz had every right to the ball.
My take: the ball was supplied by Major League Baseball for purposes of a particular game or games, and it, presumably, was under the control of both the home team, the Cardinals, which served a function akin to an implied or possibly express licensee, and the umpiring crew. In between games, the ball either goes back to Major League Baseball or remains under the control of the home team. It is never "given" to anyone. Nor does it go with the visiting team when they leave.
Moreover, Mientkiewicz worked for the Red Sox, and typically employees' works belong to the employer. So even if Mientkiewicz believed that by capably handling the throw from Keith Foulke to record the final out he somehow obtained creative ownership in the ball, that ownership claim would presumably rise to his employer, the Red Sox.
Now, one might argue that Mientkiewicz was like a fan catching a home run ball or a foul ball, and the fan gets to keep the ball. But the difference here seems to be in the abandonment of the ball. A baseball is designed for play within the confines of the playing field and when it leaves the confines--such as when it goes into the crowd--it may be considered abandoned. The ball Mientkiewicz took was never abandoned, as I assume that the either the umpires or the Cardinals' grounds crew collect the balls at the end of every game at Busch Stadium.
So here's my list for ownership claims, from strongest to weakest:
1. Major League Baseball
2. St. Louis Cardinals
3. Boston Red Sox
4. Doug Mientkiewicz
Update: Ariel Reck in the comments mentions a recent and relevant law review article by Brian E. Tierney: A Fielder's Choice: How Agency Law Decides the True Owner of the 2004 Red Sox Final-Out Baseball, 3 Willamette Sports Law Journal 1 (2006). Tierney's conclusion:
Through baseball custom, Doug Mientkiewicz should be allowed to keep the 2004 World Series final-out baseball. Although the gift may have arisen out of his employment relationship with the Red Sox, the baseball industry's long-standing tradition of allowing players to keep final-out baseballs would effectively negate the Sox's claim of ownership. This unique situation of a team requesting a sentimental ball back has given notice to MLB that some guidelines must be established. The potential outcome of this controversy may seem disappointing to many fans who believe that the ball represents an entire team's effort over a 176 game season.
I haven't yet had a chance to read the article, but it seems like a good read.
Posted By : Michael McCann
The Enemy of My Enemy is My Friend: Hunters and Environmentalists
Message posted on : 2006-04-23 - 09:48:00
Christina Larson of Washington Monthly has an engaging piece on the growing political alliance between hunters and environmentalists, and how that alliance may affect the sport of hunting (Larson, "The Emerging Environmental Majority," Wash. Monthly, May 2006). Traditionally, these two groups have gravitated towards very different political channels. Hunters have usually been associated with the Republican Party, which tends to favorably advance the interests of the National Rifle Association, while environmentalists have often leaned on the Democratic Party for a more welcoming audience.
And on the surface, hunters and environmentalists would seem to embrace very different philosophies about Earth management. Hunters like to kill animals; environmentalists like to save them. But as Larson writes, both groups lose out when mining, oil, and gas companies gain access to public lands and begin extracting resources. Environmentalists get upset because the animals die; hunters get upset because they didn't get to kill them.
Larson reports that these two groups have now found a common enemy: Over the past five years, Bush administration policies in the west—accelerating drilling on public lands and waiving protections on water quality and wildlife—have given this odd couple a common enemy. "The White House's pillaging of public lands has driven hunters and ranchers into the trenches with environmentalists," says David Alberswerth of the Wilderness Society. "There's absolutely no question about what's brought us closer together," agrees Oregon hunter and prominent outdoor columnist Pat Wray. "It's the Bush administration."
With their target set (no pun intended), hunters and environmentalists are now co-sponsoring "save the land" letters sent to Congresspersons, and they are beginning to adopt each others' viewpoints. For instance, according to a 2005 National Wildlife Federation poll, 75 percent of hunters agreed with the statement "the U.S. should reduce its emissions of greenhouse gases like carb
on dioxide that contribute to global warming and threaten fish and wildlife habitat." Larson's terrific article offers other anecdotes suggesting that the sport of hunting should no longer be viewed as a "Republican sport."
And a union of hunters and environmentalists would seem to offer an incredibly powerful lobbying group, and one, interestingly enough, that would represent the more harmonized environmental/hunting views of President Theodore Roosevelt from almost a century ago. On that note, consider that the polar-opposites characterization I posited above concerning hunters and environmentalists is misleading: a hunter is an environmentalist, because he relies on a continued existence of animals found in the wild.
But even with this burgeoning relationship and understanding, will hunting continue as a viable sport? In January, we discussed another article by Larson, and it explored the contraction of available hunting land
and how the percentage of American hunters has dropped steadily in recent years. Hunters have traditionally relied on Republicans to protect their gun rights, but are those same Republicans now rendering their guns useless? And will hunters--who obviously can't match the massive GOP fundraising contributions of big corporations who want their land--be able to fend off a shrinking terrain?
Posted By : Michael McCann
Professional Hockey Player Sues for Workers' Comp
Message posted on : 2006-04-22 - 10:10:00
In the interest of full disclosure, an article about this post appeared this week on the pages of Massachusetts Lawyers Weekly (humbly written by one of your bloggers). The case involves an interesting workers' compensation claim brought by a professional hockey player against his team.
Daniel Focht was a forward for the Springfield Falcons of the American Hockey League, a minor league team affiliated with the Phoenix Coyotes of the National Hockey League. He later went on to play a few years in the NHL. In December 1999 and September 2000, he was injured during games and sustained facial disfigurement while playing for the Falcons. He was paid $15,000, the maximum amount available under Mass. law.
During two different games in the 2001-2002 playing season, he then sustained additional facial scarring and sought additional workers' comp payment. At a hearing before an administrative judge, the insurance carrier contended that Focht had already reached the $15,000 cap based on the prior payments and was not entitled to additional money. The administrative judge sided with the player and awarded him the benefits claimed.
The decision was appealed and a Massachusetts court ruled that Focht was entitled to a separate workers' compensation payout for each facial scarring injury that he received during the four separate games — even if the total payout exceeded the workers' comp cap of $15,000.
The insurance carrier's lawyer, who represents the insurance company that insures most of the teams in professional hockey argued that by the time the most recent set of facial injuries had occurred, the player had already been awarded $15,000, which is the maximum amount allowable under the statute governing recovery under workers' compensation for facial scars.
But in upholding the decision in Focht's favor, the court wrote that to the extent that different injuries caused different bodily disfigurements, the court considered that each one was subject to its own $15,000-per-injury maximum. "We see no legislative intent that the employee be subject to an omnibus disfigurement accounting between various insurers covering various injuries," the judge said.
She added that the statute makes clear that the Legislature contemplated specific compensation for an injury and contained no language that attempted to cap the amount an individual player could obtain. The statute provides compensation to any employee "[f]or bodily disfigurement, an amount, which … is a proper and equitable compensation, not to exceed fifteen thousand dollars."
"If the [L]egislature in 1991 intended to change the application of the [statute's] cap from injury to employee, by virtue of its change in the method of calculating the maximum entitlement, it easily could have said so," the judge stated, adding that the review board was not inclined to infer such an intention.
For those having difficulty accessing the link, the full decsion be found at http://www.mass.gov/dia/PUBS/REVIEWS/06B/DanielFocht.pdf.
Posted By : Scott Gilefsky and David Frank
Hefty Fine (but no suspension) for Penn State Coach
Message posted on : 2006-04-22 - 09:07:00
We would like to thank Michael and Greg for once again including us on the esteemed guest blogger roster. As a matter of background, we do not yet have the good fortune to practice or study legal issues in the world of sports on a full-time basis. Our current involvement in this growing area is limited to our weekly radio talk show. Sadly, during the rest of the week, our legal “acumen� focuses on other topics – although occasionally we are able to include some sports topics in our during-the-week jobs. Generally, in preparing for our show, we will find cases or stories of interest to us, raise appropriate questions, and then reach out to guests who can further educate our audience. With this background in mind, we hope this weekend to raise some questions about current cases and news items. Finally, an apology to our esteemed bloggers for being tardy with our posts as those pesky during-the-week jobs demanded a significant amount of time. Enough background, on to the substance. . .
Tuesday, Penn State University disciplined its women's basketball coach. A former Penn State player had accused coach Rene Portland of discriminating against her on the basis of race and sexual orientation. The curious note to the story is the punishment handed down by University President Graham Spanier. Rather than suspend or even dismiss the coach, the school levied a substantial fine ($10,000) for her actions. President Spanier noted the need for a remedy that would have a more immediate impact than a suspension for next season. Did the university look to the courts for such a remedy? We are not aware of many cases (although perhaps the readers are) where an employer has fined an employee for an employment related discretion. Governmental agencies often fine companies and individuals for various actions. In the sports arena, we frequently observe a league fine its teams, coaches, and players. We have seen teams fine players for reporting late to training camp or refusing to play. However, these team fines generally appear to be limited to players who are not meeting the requirement to practice or play with the team. It does not seem common for teams to fine players or coaches for an act of commission. So, the next time that one of us is in violation of company policy (for example, reading Sports Law Blog during business hours), should we be concerned that a bill from our employer might arrive in the mail?
Posted By : Scott Gilefsky and David Frank
Larry Bird and Legends Wine: Exceeding the Limits of Plausible Endorsement Deals?
Message posted on : 2006-04-21 - 12:15:00
Dan Shaughnessy of the Boston Globe scripts a humorous column today on Larry Bird endorsing an $80 bottle of wine called "Legends." (Shaughnessy, "It's Vintage Bird," Boston Globe, 4/21/2006). Shaughnessy finds it ridiculous that Bird would claim any expertise in wine, and particularly wine from Napa Valley:
I removed the bottle of red (Meritage) from the box, looked at the label (2003 Napa Valley), and started to giggle. Napa Valley? Please. The closest Larry ever got to Napa Valley was when the Celtics played the Warriors at the old Oakland Coliseum. It's truly impossible to imagine him doing the ''Sideways" thing, twirling wine in his mouth, then announcing, ''Quaffable, but not transcendent."
This is a guy who would not know oakey from Charles Oakley. It's simply more proof that our pal Larry will do anything for money (which, by the way, makes him OK in my book). Who can forget the day back in the 1980s when Larry was spotted wearing a hideous short-sleeve shirt -- a shirt your mother might have bought you for the first day of first grade -- and acknowledged, ''I'll wear anything if it's free." And now the all-time beer guy has put his name on a bottle of wine. Can't fool us. We know better. Colleague Bob Ryan, Bird's official biographer, said, ''I never saw him drink anything but beer." Larry and beer were always the best of friends. Like Ryan, I know this firsthand. Back in his MVP years in the mid-1980s, he caught me drinking a Molson one night and said, ''I never drink beer that comes in a green bottle. It all goes back to a party one night in college. I picked up the wrong bottle, a green one, and started chugging and didn't know what was happening until that third cigarette butt went down my throat. That was it for me and green bottles."
Eighty bucks per bottle. That killed me. I mean, we're talking about Larry Bird here. This is the man who refused to leave a tip when he went out to eat in New York his rookie year. He just couldn't believe the price of lunch in Manhattan in 1979. In 1992, when he was in Monte Carlo with the Olympic Dream Team, he walked out of a lounge when the barkeep told him he owed 7 bucks for his bottle of beer.
Shaughnessy's column brings to mind how becoming a product endorser does not require any credible expertise or even interest in the product. Along those lines, you might ask, is George Foreman really an expert on grills, or might his endorsement be more motivated by a $137 million contract? Does Maria Sharapova drive Ford Land Rovers on a regular basis, or have any idea how they compare to similar cars? Lance Armstrong clearly knows a lot about bicycles, but should we assume the same to be true about jets?
That's not to say that all athlete endorsements are suspect. Michael Jordan and Olympic swimmer Michael Phelps probably do drink Gatorade, and the idea of Kevin Garnett drinking Red Bull seems believable. I also find it believable that David Ortiz and Shaquille O'Neal would regularly
play baseball and basketball video games, and to bolster that point, they appear to be intricately involved in the making of those games. Many athletes also endorse shoe companies, and Lebron James, Allen Iverson, and Venus Williams obviously know a thing or two about sneakers.
But as we see with Larry Bird and "Legends" wine, sometimes the product endorsement seems completely unrelated to the endorser, and those kinds of endorsements almost invite a plug for Consumer Reports Magazine. Of course, that magazine won't help us when athletes endorse politicians, but it's probably a good start.
Posted By : Michael McCann
IMG
Message posted on : 2006-04-21 - 10:11:00
Bob Kain, former president of IMG, recently spoke at the University of Virginia School of Law about breaking into the sports law industry. (Drew Snyder, "Former President of IMG Discusses Sports Law with Students," Virginia Law Weekly, 4/14/2006). He spoke at Donald Dell's Professional Sports and the Law seminar (Dell, my former sports law professor at UVA, is Chairman of Clear Channel Entertainment and has represented such athletes as Michael Jordan and Arthur Ashe).
Kain made several interesting observations. Among them was the correlation between the growing complexity of sports business and the growing complexity of sports law work:
IMG became prosperous as television transformed pro sports into a large and lucrative industry. “In the '60s and '70s, sports was a very small business. It was a couple of pages in the newspaper. We had basically three hours of television on Saturday afternoon and Sunday afternoon,� he said. As the sports business has grown, sports work has become more complex for sports lawyers. When McCormack worked out an endorsement deal for Arnold Palmer with Heinz ketchup in 1962, the contract was five pages and Palmer's fee was $500. Today, a golf star can command millions of dollars and contracts can be 40 to 50 pages.
It's interesting how complex some sports deals have become.
Posted By : Michael McCann
Throwing Games and the NBA Draft Lottery
Message posted on : 2006-04-20 - 20:42:00
True Hoop discusses an interesting post by Craig Kwasniewski regarding lottery-bound NBA teams seemingly attempting to lose games in order to secure more ping-pong balls in the forthcoming lottery. Other writers have observed the same phenomenon. For instance, Celtics Blog recently chronicled "Operation Shutdown," the sudden rash of "injuries" experienced by the Celtics, which closed out the season by losing 5 of their last 6 games--games started by bench players, while Paul Pierce & Co. sat out. Many Celtics fans, myself included, were disappointed to see the team win last night and thus tie the Minnesota Timberwolves for the NBA's 6th worst record, meaning fewer ping pong balls for the Men in Green. Speaking of ping pong balls, I calculated the following probabilities chart, based on a variety of sources, for the 2006 Lottery. I think it is right, but let me know if it needs any changes (my last statistics class was in college . . . and it's been 10 years since I took that class):
| 2006 NBA Draft Lottery Probabilities (now reflecting tie-breakers) | Ping-Pong Balls | 1st Pick Likelihood | 2nd Pick Likelihood | 3rd Pick Likelihood | Likelihood of 1st, 2nd, or 3rd Pick |
| Portland Trailblazers, 21-61 | 250 | 25.0% | 21.6% | 17.8% | 64.4% |
| New York Knicks, 23-59 | 199 | 19.9% | 18.8% | 17.0% | 55.7% |
| Charlotte Bobcats, 26-56 | 138 | 13.8% | 14.3% | 14.5% | 42.6% |
| Atlanta Hawks, 26-56 | 137 | 13.7% | 14.1% | 14.2% | 42.0% |
| Toronto Raptors, 27-55 | 88 | 8.8% | 9.7% | 10.6% | 29.1% |
| Minnesota T-Wolves, 33-49 | 53 | 5.3% | 6.4% | 7.1% | 18.8% |
| Boston Celtics, 33-49 | 53 | 5.3% |
6.4% | 7.1% | 18.8% |
| Houston Rockets, 34-48 | 23 | 2.3% | 2.7% | 3.4% | 8.4% |
| Golden State Warriors, 34-48 | 22 | 2.2% | 2.4% | 3.0% | 7.6% |
| Seattle Supersonics, 35-47 | 11 | 1.1% | 1.3% | 1.6% | 4.0% |
| Orlando Magic, 36-46 | 08 | 0.8% | 0.9% | 1.0% | 2.9% |
| New Orleans Hornets, 38-44 | 07 | 0.7% | 0.8% | 1.0% | 2.6% |
| Philadelphia 76ers , 38-44 | 06 | 0.6% | 0.7% | 0.9% | 2.2% |
| Utah Jazz, 41-41 | 05 | 0.5% | 0.6% | 0.7% | 1.8% |
games, particularly since most drafts have three or four outstanding prospects, and then a sharp drop-off in talent. While players have no apparent reason to play poorly, an owner or general manager could seemingly instruct or pressure the head coach to give more minutes to bench players.
Perhaps the most recent and egregious example of purposeful losing by an NBA team occurred in the 1996-1997 season, when teams were jockeying for the worst record, in hopes of securing the coveted first pick in the draft, which would be used to select Tim Duncan. At the time, the Celtics were coached by M.L. Carr, who was also the team's general manager. The team lost 67 games, thus securing the worst record (but it didn't win the lottery). Having watched a number of their games that season, it seemed that they always found a way to lose. Five years later, Carr would assert that he was indeed trying to lose games:
Carr suggested his last season as Celtics coach in 1996-97, during which the team suffered through a franchise-worst 15-67 record, was a tank job designed to deliver the incoming coach (Rick Pitino) with strong draft position.
"That was part of the orchestration," said Carr, an obvious indictment of the entire organization and its part in encouraging a losing season in an attempt to get the first overall pick (Tim Duncan). As it turned out, the Celtics lost out on Duncan and settled for the third and sixth overall picks.
Mark Cofman, Celtics Dismiss Outspoken Carr, Boston Herald, Feb. 1, 2001, at 84.
Do we believe Carr when he says that he was trying to lose games--with the obvious implication that the team's record didn't reflect his talents as a coach or GM--or did he lose games simply because he wasn't very good at coaching or team management? We'll probably never know. But what's interesting is that the lottery system was seen as a
way of deterring teams from tanking games. As I wrote in Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft:
The NBA Draft has possibly created incentives for teams to lose games in order to secure better draft position. Such a concern was amplified at the end of the 1983-84 season, when the Houston Rockets were alleged to have deliberately lost games in order to secure the worst record in their conference, thereby giving them a 50 percent to chance to win the top pick and select Hakeem Olajuwon, who starred at nearby University of Houston. After this scenario played out, the concept of the “Lottery� was adopted during the 1984 NBA owners' meetings, whereby all seven non-playoff teams would have an equal chance to secure picks one through seven.
The lottery system has evolved quite a bit over the years. But does it need further adjustment in order to deter apparent purposeful losing? Kwasniewski proposes several solutions, including giving every non-playoff team an equal chance at winning the lottery. Interesting idea, and it would likely eliminate purposeful losing, but it seems to go against the talent re-distributive purpose of the draft: supply the most potential help to the weakest teams. But does the current lottery system work? And do teams actually try to lose games or is that more conspiracy and hindsight bias than truth?
Posted By : Michael McCann
Show Me 97 Percent of The Money: NFL Agent Maximum Fee to Remain at 3 Percent
Message posted on : 2006-04-15 - 00:52:00
Street and Smith's Liz Mullen reports that the NFLPA's Board of Player Representatives (which is comprised of this Executive Committee) has decided against lowering the maximum agent fee from 3 percent to 2 percent for most player-agent agreements, although did lower the fee for franchised and transitioned players. (Mullen, "NFL Union Keeps Maximum Agent Fee," Street and Smith's Sports Business Journal, Mar. 27, 2006 (registration required)). A number of players had advocated that the maximum fee be reduced for all contracts, contending that some players, and particularly new NFL players, unknowingly and hastily agree to the 3 percent fee without exploring other representation options (such as hiring a lawyer to do their contract representation on an hourly rate basis, or simply finding an agent who would agree to 2 percent). To illustrate this concern, Kellen Winslow Sr. recently opined that agents are duping young players into signing player-agent contracts with 3 percent fees:
Anyone who is paying 3 percent for contract negotiation I can tell you is being ripped off. [Eligible draft picks] decide to sign with an agent because agents have sold them a bag of goods of what they can do for them. All an agent can do for you at the combine is to run around and use your name so they can recruit other players.
Winslow also argued that while many agents promise to help players secure loans, top draft prospects could save themselves the commission by simply going to a bank and easily obtaining a loan on their own.
Nevertheless, a group of agents convinced the NFLPA that a reduction in the maximum fee would prove disastrous to their practice and also severely impair their ability to provide players with certain services, such as training to prepare for the NFL combine and the NFL draft. But their persuasion only went so far, as the NFLPA passed a resolution that lowers maximum fees from 3 percent to 2 percent for franchised and transitioned players, and agreed to futher reductions when a player is franchised or transitioned a second and third time.
Rick Karcher has written extensively about player representation and agent fees. For a preview of his forthcoming article in the Willamette Law Review on that subject, check out his post from February:
We look forward to Rick's law review article. And are players being duped by certain kinds of agents or do they simply lack personal responsibility in pursuing representation? Or both?
Posted By : Michael McCann
Perjury Investigation of Barry Bonds: More Bark than Bite?
Message posted on : 2006-04-13 - 21:20:00
According to Ted Rowlands of CNN, the United States Attorneys' Office in San Francisco is investigating whether Barry Bonds perjured himself while testifying before a grand jury in 2003. During that testimony, Bonds admitted that he had used a clear substance and a cream provided by trainer Greg Anderson, but stated that he believed they were flaxseed oil and arthritis balm. He also disclaimed any knowledge of substance-usage records, such as doping calendars from BALCO which indicated that he had used banned drugs, and denied ever paying Anderson for steroids or knowingly using them. As we discussed last month, the new book "Game of Shadows" paints Bonds as a knowing and habitual user of steroids and performance-enhancing substances.
Keep in mind, perjury charges are typically very difficult to prove. Perjury is the act of knowingly, intentionally, and materially lying to a court after taking an oath to tell the truth. So the prosecution must establish that a defendant knowingly and intentionally misstated a material fact, rather than having merely suffered from 1) a faulty recollection while answering a question; 2) a misunderstanding of the question being asked; or 3) a misunderstanding of his own response to the question. Moreover, an intentional lie must have a consequential effect on the case's ultimate outcome, a hurdle which can also be difficult to establish.
On the other hand, and assuming that Bonds did in fact lie under oath, his reputation for being meticulous about what goes into his body would seem to undercut any faulty recollection defense. But then again, did he understand the questions being asked of him? And did he fully understand his own answers? And how can the prosecution show that he did?
Posted By : Michael McCann
The $35,000 Question: Will Lower NBDL Age Limit Matter?
Message posted on : 2006-04-13 - 18:20:00
The National Basketball Development League (NBDL), which in part serves as the NBA's minor league system, announced today that it will lower its minimum age requirement from 20 years of age to 18 years of age, effective next season (note: the current 20-year old NBDL rule exempts players who are at least 18, had been drafted by an NBA team, and who were later cut or re-assigned by the NBA team). The NBDL age limit is different from that of the NBA, which now requires that an amateur American player be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season has passed from when he graduated from high school, or when he would have graduated from high school, and the NBA draft.
The lowering of the NBDL age limit may reflect criticism that the NBDL's 20-year old limit is in violation of federal antitrust law, and specifically Section 1 of the Sherman Act, which prohibits agreements that unreasonably restrain trade, such as those impairing a relevant labor market (in this case, players). Back in 2002, sports agent Chris Brown of Orpheus Sports & Entertainment (and also adjunct sports law professor at Boston College Law School) wrote in the Metropolitan Corporate Counsel:
Under federal court precedent, the NBDL Rule most likely constitutes a “group boycott� that is illegal under Section 1 of the Sherman Act, exposing the NBDL to a potential fine of Ten Million Dollars ($10,000,000.00).
The harm resulting from the application of the NBDL Rule is threefold. First, teenage athletes not drafted by the NBA will be excluded from the market they seek to enter, the NBDL. Second, competition in the NBDL will suffer due to the fact that potentially superior athletes will not be afforded an opportunity to play in the NBDL. Third, by pooling their economic power, the individual member teams of the NBDL, like the NBA, have, in effect, established their own private government, and the NBDL possesses market power in a degree approaching a shared monopoly.
The NBDL will be hard pressed to convince a federal court that the NBDL Rule excluding athletes from trying out for a team based on the fact that the athlete is under twenty years of age does not constitute a group boycott under the Sherman Act . . . Utilizing a strict age requirement over merit will eventually lead to judicial scrutiny.
It will be interesting to see if the lower NBDL age rule attracts any star 18-year old high school basketball players who would otherwise have jumped for the NBA but can't because of the new NBA age limit, and who don't want to play in college (perhaps because they would rather make money for themselves and their families than for the NCAA/CBS/ESPN/Nike/videogame companies etc. which profit considerably from college hoops). But keep in mind, the average NBDL salary is about $35,000 (in comparison, the average NBA salary is about $4,900,000 or 139,000% more than the average NBDL salary), and NBDL players travel by bus and stay in motels. And perhaps save for a few, nobody knows who they are. In other words, life in the NBDL is nothing like life in the NBA, and they are obviously not comparable employment opportunities.
But for some players, the NBDL might still seem like a better option than
going to college (similar to how for some persons, going into a trade out-of-high school is a better option than going to college). After-all, while $35,000 a year might not seem like a lot to most, someone from a family below might have a very different reaction to that salary.
We'll see.
Posted By : Michael McCann
The Case for Banning Smokeless Tobacco in Major League Baseball
Message posted on : 2006-04-12 - 21:18:00
As we know, Major League Baseball is determined to eradicate steroids and performance-enhancing drugs from the game. Both politicians and fans have expressed disgust at the thought of players cheating, especially when those players break or threaten to break storied records. Politicians and fans are also worried that young people will watch their baseball heroes gain success and acclaim by bulking up through illegal means, and will thus feel that they should do the same. I discussed that latter topic in an article published last year in the American Journal of Law and Medicine.
But where is the uproar over young persons watching ballplayers chew and spit smokeless tobacco, especially when over 70 percent of ballplayers do so? After-all, long-term users of smokeless tobacco increase their risk of mouth cancer by 400 percent, and approximately 50 percent of those who use smokeless tobacco developed the habit before they were 13. Just as troubling, 20 percent of high school males use it and a higher percentage of high school athletes do. Smokeless tobacco is also known to discolor teeth and to cause gum recession and tooth decay.
So why not the same uproar over smokeless tobacco? Is it because steroids are about cheating while smokeless tobacco is about personal habit? Is it because many steroids and performance-enhancing are illegal while smokeless tobacco is not? Is it because too many players chew and it is thus too widely-used to stigmatize? The explanation doesn't appear to be about health concerns, as smokeless tobacco is arguably more harmful and its use among young persons appears to be more prevalent. Even worse, we've already seen baseball players greviously harmed by smokeless tobacco (e.g., former Anaheim Angles minor leaguer Rick Bender; former high school baseball player Gruen Von Behrens), but bursts of outrage directed toward it don't seem to last. **Note: the photos of Bender and Von Behrens show horrifically-saddening consequences of smokeless tobacco, so be warned before clicking on their links.**
These are questions implicated by a new study authored by Harvard Professor Gregory Connolly on tobacco use during the 2004 World Series between the Boston Red Sox and the St. Louis Cardinals. (Stephen Smith, “Team of Destiny had a Dirty Habit,� Boston Globe, Apr. 11, 2006). Professor Connolly and his researchers analyzed videotapes of Game 4, and found that the Sox and Cardinals provided what amounted to $6.4 million in free advertising to the smokeless tobacco industry. So no, not a good example for impressionable kids.
Professor Connolly calls on Major League Baseball to ban smokeless tobacco, but Major League Baseball claims it cannot do so without consent from the Major League Players' Association (does that explanation ring a bell?). It would be great to think that
Congress would show the same resolve in tackling smokeless tobacco that it has in combating steroids--particularly since the threats of Senators John McCain and Jim Bunning clearly had an effect on both Bud Selig and Donald Fehr--but given the lobbying and political-fundraising strength of the tobacco industry, I'm a tad skeptical that we'll see the same Congressional willpower this time around.
Thanks to Bill McCann for alerting me of the Connolly study.
Posted By : Michael McCann
The Power of Situation: Joakim Noah's Decision to Stay at Florida
Message posted on : 2006-04-11 - 16:40:00
After leading the Florida Gators to an NCAA title, many thought that sophomore Joakim Noah would declare for the 2006 NBA Draft. A number of draft experts, including Aran Smith of NBA Draft Net and Chad Ford of ESPN (and ) predicted that Noah would be the first or second player selected, especially given the unusual absence of premiere talent in this year's draft. In contrast, because of what appears to be deeper class in the 2007 NBA Draft, Noah might struggle to be a top 10 pick next year. And keep in mind, the economic difference between being the first pick in 2006 and the 11th pick in 2007 is the difference between a guaranteed, three-year contract worth $14.4 million and one worth about $6.2 million, plus the difference between being one year closer to NBA free agency and one year farther away.
But Noah passed up what would likely be a top two selection in this June's draft to stay at Florida. And by doing so, he received the predictable praise from those who advocate that players stay in school: by staying an extra year in college, Noah will better develop his game and position himself for another championship. He also appears loyal to his school at a time when stars are leaving as early as possible, a phenomenon which some believe is attributable to the greed and immaturity of young basketball players.
But Noah's choice appears to say more about his situation than about loyalty. His father is Yannick Noah, a former tennis star who won the French Open in 1983. Yannick Noah is now a rock star in France and is worth tens of millions of dollars. Joakim's mother is actress Cecilia Rhode, a former model who was Miss Sweden in 1978. I don't know how much she's worth, as she later divorced Yannick Noah, but I'm going to go out on a limb and say she's probably doing alright.
So Joakim Noah's decision, like the decision of any amateur player contemplating whether to declare, is more about the situation than about the individual. And for most amateur basketball stars, the decision to turn pro is deeply affected by the systemic poverty around them. Indeed, many players turn pro because they are from impoverished families--families who have been poor since they arrived in America centuries ago (or, more technically, were forcibly taken to America centuries ago). A son turning pro may be the only opportunity for a family to end its cycle of poverty, and it is an opportunity that may never come again--especially given the potential of being injured at any time on the court. And although we like to latch onto endearing narratives and vignettes of those Americans who intrepidly rose from poverty to wealth, aggregate statistics
confirm the more common difficulty of moving out of poverty in spite of work ethic. In other words, when the chance is there get out of poverty, it's probably a good idea to take it, because income mobility may be as much about serendipity as about anything else.
But Joakim Noah was not faced with that situation. He's from a very wealthy family, and the millions he would obtain from his first NBA contract probably aren't as meaningful as they were to guys like Jonathan Bender and Al Jefferson and others similarly-situated, along with their families. And if God-forbid Noah blows out his knee next year, he'll still be from a very wealthy family. That is not to begrudge his decision, but before we condemn as disloyal and greedy those who decide to leave school early, it would probably be helpful to first look at the circumstances surrounding their decision. Doing so would probably tell us a lot more about them than does their actual choice.
Posted By : Michael McCann
The Beauty of Bets: Wagers as Compensation for Professional Athletes
Message posted on : 2006-04-10 - 16:54:00
Professor Jeffrey Standen of Willamette University College of Law has posted on SSRN a fascinating article that will be published in a forthcoming issue of the Willamette Law Review. The article is entitled "The Beauty of Bets: Wagers as Compensation for Professional Athletes." It may be downloaded at this link (the link goes to the abstract, and you can download the article for free through "Document Delivery" -- all you will need is an SSRN account, which is free). The article examines athletes betting on games and it concludes that such betting is a good thing.
Here is the article's abstract:
Professional and amateur leagues prohibit athletic participants from wagering on the outcome of the games in which they play. Most also prohibit wagers on any aspect of the sport; some even prohibit wagers on any sporting contest. At the same time, these leagues typically allow teams to compensate players based on individual performance outcomes and team victories and championships. Certain non-league tournament sports, particularly professional golf, even allow players to bet on pre-tournament practice contests.
This paper outlines the advantages of allowing athletes to bet on their games. Betting aligns player incentives with team incentives, encourages team-oriented play, helps sustain fan interest, lessens the nominal costs of owning teams or ticket purchases, and reduces the likelihood that players will conspire to throw games or beat the point spread. In light of this advantages of betting, the widespread prohibition on participant gambling seems problematic.
And here is an excert from the article's introduction that rings so true:
Some fans also appear to enjoy financial aspects relevant to professional sports as much as they might enjoy the sport itself. For instance, some fans enjoy playing general manager, filling web sites with their analyses of how potential player trades or free agent acquisitions would comport with salary cap limitations. Likewise, many fans consume their taste for sports fantasy leagues, gambling on fictitious games made up of fictitious teams populated by real players playing in real games. Finally, some fans consume their sports viewing enjoying through gambling directly on the games themselves. Presumably, these fans' taste for “financial sports,� such as fantasy trades, fantasy leagues, or wagers, shifts these spectators' attention away from the pure competition of the sports themselves. Despite this possibility, the American professional leagues appear to tolerate side action by fans and fantasy league participants, and indeed welcome the added attention these financial fans bring to their players and leagues. The sports leagues produce the product that these financial sports fans consume; the leagues, however, do not capture the gains from their product.
Jeff delivered an excellent talk on this article at the Future of Sports Law symposium held at Willamette Law last month.
This is fascinating topic. Should athletes bet on games? And is it a good thing for the parties involved?
Posted By : Michael McCann
Federal Court: Hazing Can Be A Matter of Public Concern
Message posted on : 2006-04-09 - 19:30:00
This appeal gives added credence to the ancient adage that the bearer of bad news has a losing office. Such is literally true in this case if plaintiff's allegations are accepted. Plaintiff, a public school teacher, claims he expressed concern about a serious hazing incident to his employer the school board and, as a result, lost his job.
In both the letter and press conference plaintiff addresses two issues that are of paramount interest to a community faced with a hazing incident in its schools: first, how the School District allowed such an incident to occur and, second, how the School District conducted its investigation into the hazing.
http://www.law.com/jsp/article.jsp?id=1144330160528
Posted By : Greg
(Un)Leveling the Playing Field: Enrollment Multipliers in High School Sports
Message posted on : 2006-04-08 - 12:22:00
As this year's spring sports season concludes, many state high school athletic associations have started their consideration of rule changes for the upcoming sports year. Recently, there has been a push on these associations to do something about a perceived disparity in the amount of state championships won by private schools, especially in football and basketball. Some states, including Illinois, Missouri, Arkansas, and Tennessee, have addressed this issue by multiplying a fixed percentage to a private school's enrollment total. This multiplication effectively requires private schools to compete against larger schools for state championships. Private schools have cried “foul� and have both filed lawsuits and lobbied state legislatures to reverse the associations' decisions. Yet, as more and more states consider enacting these multipliers, states with multipliers have found their systems have not produced the desired results as private schools still win a disproportionate number of state championships. Some states have abandoned the multiplier concept altogether while others have strengthened the multiplier by increasing the percentage.
The aforementioned issues are discussed in my next law review article: “Prep Plus: Evaluating the Motivations for and Effects of Multipliers and other Measures in High School Sports,� (publication TBD). Below are some questions that I am attempting to answer in the article as I am in the process of interviewing those connected with high school athletics (coaches, athletic directors, officials, athletes). Any thoughts would be appreciated, both commentary here, and, please contact me for possible contribution (quotes from people in the know make for good copy) to the article. Although I am a product of a Jesuit high school, I am taking an objective approach to an issue that is very dear to many of our hearts: our high school sports experience. So, some questions…
Do private schools have inherent advantages that make them more successful on the playing field? Should state associations regulate athletic competitions in ways that foster an even distribution of state championships? Do state associations send the message to public school students that they count less than private school students (through the institution of multipliers) in an effort to produce more public school state champions? Are separate tournaments for private and public schools a better alternative to enrollment multiplier? Do these methods taint a state's championship as unfair?
Posted By : Tim Epstein
Let's Send Barry Bonds to Russia
Message posted on : 2006-04-07 - 06:53:00
Adrian Blomfield of the London Daily Telegraph reports that, starting in July, those traveling to Russia will have to take a lie detector test before exiting the airport (Blomfield, "'Truth Verifier' Interrogates Russia Travelers on 'Lies,'" Wash. Times, 4/6/2006). Travelers will be required to speak into a handset which can apparently measure the veracity of their words:
The machine asks four questions: The first is for full identity; the second, unnerving in its Soviet-style abruptness, demands: "Have you ever lied to the authorities?" It then asks whether either weapons or narcotics are being carried.
Passengers who fail will be subjected to more rigorous interrogation both by the verifier, whose accuracy increases to 98 percent with more extensive questioning, and by its human colleagues . . . [a failing passenger] is accompanied by a special guard to a cubicle where he is asked questions in a more intense atmosphere.
I wonder how Bonds would answer the question "Have you ever lied to the authorities?" Or how about the question "Are you carrying any narcotics?" Assuming the handset rejected Bonds' answers, I have a feeling the resulting "more rigorous interrogation" by Russian security guards in the "more intense atmosphere" would be a tad scarier than whatever George Mitchell has planned (although Mitchell did impressively command the respect of those involved in the Belfast Peace Agreement, so who knows).
Posted By : Michael McCann
Down with the Count: Do Weigh-In Procedures Actually Endanger Boxer Safety
Message posted on : 2006-04-05 - 21:02:00
It goes without saying that the boxing is a dangerous sport. In 1997, Congress enacted the Professional Boxing Safety Act, 15 USC §6301 et seq., which mandates physical examinations of boxers before competition, ambulances on-site and certification from a medical doctor that the boxer is physically able to compete. State boxing commissions have much more detailed rules regarding boxing competitions, including detailed weigh in procedures. If fighters do not meet their weight, the commission requires corrective action to be taken and may prohibit the fight from taking place if the weight disparity is too great. See Nev. Admin. Code §467.476(2), §467.522. Nevada also limits fighters on losing additional weight after weigh-in. Nev. Admin. Code. §467.476(3). In 2000, the Boxing Task Force of the National Association of Attorneys General recommended that commissions require two separate weigh-ins to occur seven days and eight hours before the fight. Additionally, the Task Force recommends the commission limit the amount of weight a fighter can lose in the interim.
While the Boxing Commissions have regulated on the basis of losing weight surrounding weigh-ins, real dangers come from boxers who meet their contract weight at the weigh-in, but then gain weight prior to the bout. As noted by L. Jon Wertheim in last week's Sports Illustrated (When a fighter packs on 20 pounds after the weigh-in, two people can get hurt, Sports Illustrated, April 3, 2006), as a follow-up to a story from the March 27, 2000 issue by Hoffer, Lidz, and Llosa (Inside Boxing), it is common practice for boxers to dehydrate themselves prior to weigh-ins, and then put the weight back on after weigh-in by rehydrating thru a variety of methods as simple as drinking water and as complex as blood transfusions and IV injections. When one boxer uses this technique and the other does not, then boxing matches can take place with weight differences at levels that state commissions have deemed otherwise dangerous and prohibited.
In a February 2000 junior-welterweight bout (one of six bouts before a fight between de la Hoya and Derrell Cooley at Madison Square Garden), Joey Gamache and Arturo Gatti each met their 141 pound weight requirement eight hours before their fight. Thereafter, Gatti, using a rehydration strategy, ballooned to 160 pounds. Gamache did not use this strategy and fought at 145 pounds. HBO weighed both boxers prior to their fight, but the results were immaterial according to the governing rules. The fight was stopped after lasting only 20 seconds into the second round. Gamache was allegedly left with severe and permanent neurological injuries that ended his boxing career.
Gamache initially filed suit against Gatti and New Jersey Sports Productions, Inc. with a demand of $10 million, which was voluntarily dismissed by the Plaintiff. On February 26, 2006, the matter was refilled in the Southern District of New York (06 CV 1338) before Judge Laura Taylor Swain (check PACER for a copy). The suit alleges that Gatti and New Jersey Sports Productions, Inc. breached the contract for the fight as Gamache “failed to satisfy the maximum weight limit requirement set forth in the contract,� and as a result Gamache lost the fight, was hospitalized for two days, and has ongoing
pain and suffering. The complaint also includes a loss of consortium claim by Sissy Gamache, Joey's wife.
State Commissions have allegedly given this issue a priority in their July meeting, so what should be done? Should the Commissions adopt standards to address the concern of weight gain, as opposed to weight loss, prior to competition? Should boxers be prohibited from using these techniques? Should medical examinations be tailored to address hydration issues? The simple solution would seem to require fighters to meet a contract weight moments before their fight, but this has been abandoned due to rapid dehydration techniques that would leave fighters dangerously dehydrated prior to a bout.
Hat tip: to uber law clerk, Jim Ryan, for his help researching this.
Posted By : Tim Epstein
Defaming or Fitting? The Bobcats Release of Kareem Rush
Message posted on : 2006-04-05 - 19:13:00
Last Saturday, the Charlotte Bobcats released guard Kareem Rush. Rush, 25, had started 25 of 47 games this season, and averaged 10 points per game on 39% shooting from the field (and 35% from beyond the three-point line). Not outstanding numbers, but certainly decent numbers from a still young, and occasionally prolific scorer, and good enough that many wondered why the Bobcats would release him--and particularly this late in the season (the Bobcats had only 10 games left at the time of Rush's release). When explaining the team's decision in a press release, Bobcats general manager and head coach, Bernie Bicerkstaff, offered unusually harsh and demeaning words:
The Bobcats are about two things - hard work and maximum effort. With that in mind, we think that it is best to go in a different direction with Kareem.
Bicerkstaff's comments have drawn the ire of some in the NBA. Most notably, Lakers head
coach Phil Jackson, who coached Rush the previous two seasons, called the move and explanation "vindictive." He argued that the more appropriate move by the Bobcats would have been to place him on the inactive list and waive him in the off season. Bickerstaff intemperately fired back at Jackson yesterday: "[Jackson] probably forgets he wrote a book for profit and (revealed everybody's confidences), so he has no credibility.�
Others believe that Bickerstaff not only had a right to criticize Rush, but should be applauded for doing so. Bobcats captain Brevin Knight praises Bickerstaff for showing that "if you're not giving the effort that's expected to be given, there will be some consequences." Similarly, True Hoop's Henry Abbot writes:
I'm a big believer in creating "Corporate Culture" on NBA teams. The Pistons and Spurs have it. What it means, precisely, is a matter for a 10,000 word essay, but it's along the lines of having everyone know, and believe, that there is "a certain way we do things here." When just about the whole roster agrees on that, you can get some great results. Seems like this could be a sign the Bobcats are pretty intent on developing that kind of culture.
No one seems to know what exactly Rush did to warrant such an unusual release and the even more unusual accompanying criticism. Until now, he hasn't drawn all that much attention in his career, other than developing a reputation as a talented three-point shooter who is deficient in the areas of defense and rebounding, and who doesn't like to pass the ball. A flawed player indeed, but until now, I haven't seen evidence of him being a flawed person. But Bickerstaff, Knight, and perhaps others think otherwise.
And let's assume that Rush was indeed going through the motions and not being a good team player and all of that--a true jerk extraordinaire. Even so, should the
Bobcats have disparaged him on the way out? Usually employers go out of their way to avoid embarrassing employees when they are fired, not only out of respect to the employee and to dissuade him from later bad-mouthing the employer, but also to reduce the likelihood that remaining employees will become upset at the firing or worried that other personnel changes are on the way. Employers also have to worry about defaming or libeling an employee when he is fired. I have no doubt that Rush and his agent are at least thinking about the remote possibility of a defamation suit against the Bobcats and Bickerstaff, paticularly if Bickerstaff's comments prove to damage Rush's reputation and his prospects for future NBA employment.
For his part, Bickerstaff seems insecure and tactless. I suspect a genuinely confident general manager wouldn't need to resort to gratuitous swipes at an exiting player. Just wish him well and move on. I'm sure fans and other NBA observers would be able to read the space between the lines as to why a player was let go with only 10 games left in the season.
Posted By : Michael McCann
MLS: Reflections on the League's Appeal to the Mexican-American Population in Light of the Current Immigration Debate
Message posted on : 2006-04-05 - 00:13:00
Many Americans dismiss professional soccer (nee football) as a foreign game, number one world-wide, but certainly lesser in popularity than baseball, basketball, and American football here in the States. While soccer enthusiasts suggest that the success of the Mia Hamm led campaign of the women's team and the ever-increasing youth soccer programs are breeding fans of “the beautiful game,� domestically, the collapse of the women's league and the lack of major fan draws as compared to the MLB, NBA, and NFL, would suggest otherwise. Some have speculated that the Major League Soccer (MLS) fan base in the U.S. can be found in the recent and current immigrant populations. If that is the case, then what possible effects could be felt if the House or Senate bills regarding immigration are passed, particularly from Mexicans in the United States?
The question is not meant, by any means, to suggest a large portion of potential supporters of MLS are illegal immigrants, but that anti-immigration measures that most certainly will have a disparate impact on Mexicans living in this country may alienate a potentially large (legal or otherwise) fan base from supporting an “American� team.
According to ardent futbol supporters that I know (I cannot claim such faith), it is difficult to support the domestic professionals because of, in their words, the lack of quality product. Their focus goes to clubs like Real Madrid, Manchester United, Juventus, and Arsenal. Similarly, according to many like Andrea Canales who covers MLS and collegiate soccer for ESPN (Y ahora que?, ESPNsoccernet, March 6, 2006), many Mexican-Americans and Mexican nationals living in the U.S., support teams from the Mexican league (MFL), with Canales going so far as to describe the Mexican community's feelings toward MLS as “disdain�. However, what is to say that recent moves with Chivas USA (an American sister-club established by a Mexican one) and the Houston franchise (changed name under pressure from the Mexican community that the name was offensive) have not worked to engage the Mexican population to adopt an American product like Irish emigrants in the UK support Celtic F.C.?
At least one survey, referred to on the 2002 FIFA World Cup Site, puts Hispanics as forty percent of MLS fans (this author could not locate a survey specifically directed to Mexicans, the largest Hispanic population in the U.S.). If this figure is correct, or if this figure could be realized in the near future (a critique of the MLS has been in banking on “future� fan bases nurtured on youth soccer), should MLS executives be concerned about how our government may be treating immigrants?
In his paper on “The Ethnic Legacy of Soccer�, Len Oliver wrote (in 1996) that while “[w]e no longer have to depend on immigration to support soccer,� he believes that:
“Whatever the current composition of soccer in the U.S., we can still talk about ethnic contributions of the past, the strong ethnic roots in the game, and the continuing ethnic legacy. As long as we remain a multi-cultural society, our soccer will continue to be influenced by people born outside our shores. No other major team sport in the U.S. can boast such a rich pluralistic tradition, one that reflects our country's own diversity.�
Posted By : Tim Epstein
Justice Scalia to Speak at Mississippi College School of Law Today
Message posted on : 2006-04-04 - 06:05:00
It's an exciting time for my law school, as Associate Justice Antonin Scalia of the United States Supreme Court will be speaking to faculty, students, and guests later this morning here in Jackson, Mississippi. We will then host a luncheon for him, and later on in the day he will be judging the Mississippi Moot Court Championship, which will be held at my school and will feature our student moot cour
t teams competing against teams from the University of Mississippi School of Law. Other judges for today's Championship will include Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the 10th Circuit, Judge E. Grady Jolly of the U.S. Court of Appeals for the 5th Circuit, Judge Charles Pickering formerly of the U.S. Court of Appeals for the 5th Circuit, and Judge David Bramlette of the U.S. District Court for the Southern District of Mississippi. With that spectacular group, I am sure our moot court students will be asked some excellent questions.
But going back to Justice Scalia and his talk to the law school, he will entertain questions. I imagine some questions might pertain to national security law or to religious freedom or to other timely topics. But what about sports law? What might be good questions to ask him about our favorite legal topic? (other than obvious ones, like, "Justice Scalia, why was Clarett v. National Football League so wrongly decided?"). After-all, Justice Scalia wrote a memorable and humerous dissent in PGA Tour, Inc. v. Casey Martin, so we know that he has an interest in sports law.
And if you could ask Justice Scalia one question about sports law, what would it be?
Posted By : Michael McCann
Nospace: Is MySpace Inappropriate for Student Athlete Expression?
Message posted on : 2006-04-03 - 19:31:00
In recent months, a hot topic of discussion on college campuses has been the regulation of personal web pages, specifically linked pages through networks like MySpace and Facebook, spurned on by a well-written article by Erik Brady and Daniel Libit in USA Today (Brady & Libit, "Alarms Sound Over Athletes' Facebook Time," USA Today, Mar. 8, 2006). Such websites may require an invitation from the individual website host to view, while others simply require an “.edu� email address to generally search.
While schools do not sponsor such sites, administrators have in some cases disciplined underage students for drinking in photographs posted to such personal sites. Punishment has been handed down for disparaging remarks made about other students and staff members on such sites. Most schools have also made clear that a primary motivation for regulation of such sites is student safety due to the personal information disclosed by individuals on their respective sites, including, phone numbers, addresses, and birth dates. While personal safety is a concern, references have been made to protecting athletes from exploitation by agents and gamblers, as well.
Interestingly, student athletes seem to be under particular scrutiny by universities to remove material from their pages on MySpace and Facebook.
Most recently, John Planek, the Athletic Director at Loyola University (Chicago) banned all athletes from even having profiles on such sites, regardless of the content of said sites. According to Planek, Loyola will enforce this rule, "[the] same way we enforce all the other policies. [If] you don't follow the rules, you aren't on the team. It is a privilege to participate on our teams, not a right...Some rules [athletes must follow] are [a] part of the NCAA, others we instituted...The world a student athlete lives in gives them a certain number of privileges. [However], they have to adhere to certain rules and regulations."
This writer is not aware of any other college taking such a strong stance on such sites, but other student athletes have been punished for certain content on their sites, or simply advised to edit the content. Some examples:
- Baylor, Kentucky, George Washington, and Florida State have warned their athletes to responsibly post.
- Eddie Kenney and Matt Coenen were kicked off the LSU swim team after school officials discovered the two were members of a Facebook group that published insulting comments about their swim coaches.
- Colorado offensive tackle Clint O'Neal and his girlfriend, cross country runner Jackie Zeigle were ticketed for harassment for allegedly sending a racially threatening Facebook message to Hispanic cross country runner Greg Castro in December 2005. O'Neal was also suspended from the Champs Sports Bowl.
Brady and Libit's article quotes Kermit L. Hall, president of the University at Albany (N.Y.), as believing schools to be legally justified in regulating student athlete use of such sites, but not necessarily the general student population.
"Students who join those teams submit to a certain degree of regulation that doesn't follow the rest of the student population. There are team rules on curfews and other things, and if one of those rules is you can't be on Facebook — or, if you are, that you present yourself in a way that shows the values of your university — I think schools can do it.�
"Facebook presents a vivid reminder of the paradoxical world in which athletes on campus have to function. They're not public figures in the
sense of New York Times v. Sullivan, but they are public figures in the sense that they appear regularly on the sports pages."
Is it possible to make a distinction between athletes that doe not “appear regularly on the sports pages� versus participants in revenue sports like football and basketball? Is there a distinction here between the regulations that could be undertaken by a private versus a public institution? In speaking with some high school and college students, membership in networks like MySpace and Facebook are “essential� elements in their social lives. Could severe restrictions like Loyola's and severe actions like those undertaken by LSU hurt recruiting of student athletes?
Posted By : Tim Epstein
The Grass Was Always Greener: Red Sox Make Progress in Attempt to Sign Roger Clemens
Message posted on : 2006-04-03 - 14:24:00
A good example of how a team can distort contract negotiations with a free agent player at the expense of a competing team, and doing so right on the competitor's own turf makes it seem even sweeter:
According to Sports Radio WEEI in Boston, Roger Clemens had dinner with Red Sox GM Theo Epstein and interim pitching coach Al Nipper on Sunday night [in Arlington, Texas, where the Sox will begin the season] and met members of the team on Monday.
We're guessing this wasn't what Rangers owner Tom Hicks had in mind when he invited Clemens to Opening Day. The Red Sox have taken advantage and used the time to try to lure the 43-year-old back to Boston, with David Ortiz, Tim Wakefield and Josh Beckett among those talking to him today. Clemens isn't expected to decide on his future for at least another month.
The Red Sox also provided Clemens with a video of his good times in Boston. Clemens apparently told Chris Snow of the Boston Globe: "my two youngest kids cried when they saw the video, and my family is really warming to the idea of pitching again in Boston."
I've always found it interesting when teams try to manipulate the situational factors that affect free agent players' presumed preferences, and when they try to exploit the cognitive biases that afflict players and all of us in our thinking. Along those lines, I assume that Theo Epstein and gang didn't reminisce about everything from Clemens' previous stay in Boston.
Posted By : Michael McCann
A Market Solution to Baseball's “Asterisk� Problem
Message posted on : 2006-04-02 - 22:03:00
As the MLB season opens today, one of the league's hyped stories is Philadelphia shortstop Jimmy Rollins' hitting streak. Rollins hit in the last 36 games of the 2005 season; his streak is now the ninth longest in baseball history; with 21 more games-with-hits he will break the one record in baseball that no one thought would be broken: Joe D's 56-game hitting streak. Oh wait, no he won't. According to MLB, “If he succeeds, Rollins will be recognized as the holder of the longest hitting streak in Major League history, though DiMaggio will keep the single-season mark.� In other words, Rollins will have a record, but one with an asterisk – much like the asterisk (formerly) on Roger Maris's single-season homerun record. The Rollins asterisk makes some sense; hits in games at the end of a season (in which teams may be out of contention, or resting players in advance of playoff runs, and thus not deploy their best pitchers and fielders) are not the same as hits in July. Depending on how baseball's investigation of Barry Bonds ends up, if Bonds breaks the lifetime homerun mark he may have his record *'d as well (* = Bonds was possibly juiced up while hitting a good number of these homers).
I understand baseball's recent fascination with record-breaking performances. After all, the memorable McGwire-Sosa contest was one of the most important factors in curing baseball of its post-strike blues. Pitching Rollins's possible “record breaking*� season is an obvious PR ploy aimed at distracting the public from the ongoing steroid investigation.
Instead of adding *'s after records, some of which are defensible while others are not, MLB should get out of the business of assigning “official� record-holder status to any of its current or former players, and ignore that records exist or are broken. Instead, MLB should let the market decide which are the “definitive� records and who holds them. Various private companies, with a profit motive, can offer their own “definitive� records for public and media consumption. Guinness can get in the game; so can U.S. News and World Report. Bonds may break the career home-run record; but if the public “rejects� that record as definitive (or rejects Rollins' multi-season streak as being a streak at all) by way of choices made by the market, MLB won't need to slap Bonds with a *.
Posted By : Geoffrey Rapp
Empirical Study on how NCAA and Member Schools Profit from Basketball Players
Message posted on : 2006-04-02 - 12:06:00
In second part his front-page examination of the NCAA for the Indianapolis Star, Mark Alesia studies the extent to which schools and the NCAA profit from star players (Alesia, "Tourney Money Fuels Pay-to-Play Debate," Indianapolis Star, 4/1/2006). Strikingly, according to Alesia, fewer than 1% of NCAA athletes generate more than 90% of the NCAA's money, which confirms the incredible economic value of hoop stars to colleges and universities. Alesia uses additional ways to expose the popular refrain, "these kids shouldn't complain, they are getting a free education," as profoundly unfair. For instance, he mentions how Scott Pollard, while a student-athlete at the University of Kansas, struggled with finances as he watched Kansas sell his replica jersey to fans. Alesia then reveals this nugget:
43 of the 50 public-school teams in last year's tournament generated a combined $267 million for their athletic departments, mostly in ticket sales, donations and TV revenue. Those schools gave out a total of $12 million in men's basketball scholarships. The rest was used to pay for coaches, administrators and money-losing sports -- basically, all others except football.
Pretty good deal for the schools with top basketball programs: they pay out a combined $12 million for the athletes who generate $267 million for them. Alesia interviews Ellen Staurowksy, a professor of sport management at Ithaca College, who contends, "the hidden part of the budget (in big-time college sports) is the artificial suppressing of the value of the people making this run." As a result, some argue that NCAA players should be provided with some kind of stipend. Pistons guard Chauncey Billups agrees:
"I've had the conversation with a couple of my teammates about this issue. Tayshaun (Prince) went to Kentucky and Rasheed (Wallace) went to North Carolina and Rip (Richard Hamilton) went to UConn. Those places make millions of dollars (in basketball revenue). You're telling me it's not fair to pay those kids a stipend? I'm not saying to pay them NBA money or $200,000 or $300,000. I'm not saying that. But at least a little stipend would be fair, without a doubt."
Duke senior J.J. Reddick, however, believes that the simplicity of the current system -- where players get nothing and the schools get everything -- justifies it (sort of like how people justify the flat tax idea on grounds that it's simple, without considering its fairness or desirability):
"I really don't think that college athletes should be paid a stipend. Should one player get more than another? Should a guy at a big school whose jersey sells for Nike be paid more than (someone) at a low D-I school? Doesn't make sense. I think the easiest way is to just have the system that's in place right now."
A truly outstanding work by Mark
Alesia, and congrats to the Indianapolis Star for publishing it. Related links:
Part I of Study: College Pays, Public Pays (3/30/2006)
Part II of Study: Tourney Money Fuels Pay-to-Play Debate (4/1/2006)
Interactive Database: NCAA Financial Reports (3/30/2006)
Chart: How Much Would College Players Be Worth? (4/1/2006)
Sports Law Blog: New Study on College Sports Finances and NCAA Tax Exemption (3/31/2006)
Sports Filter: Discussion of Alesia Study (3/31/2006)
Posted By : Michael McCann
Should Sports Teams be Owned by Public Corporations?
Message posted on : 2006-04-01 - 10:06:00
Rumors continue to circulate that the Tribune Company, a publically owned diversified media company, plans to sell the venerable and perpetually unsuccessful Chicago Cubs. Chicago Tribune columnist Rick Morrissey joins the plea yesterday: “Sell them to Mavericks owner Mark Cuban or Aon Executive Chairman Patrick Ryan. Sell them to somebody. Just sell them.� For years, Chicagoans have speculated that the rational-thinking corporate executives at Tribune have concluded that a less successful franchise is actually profit maximizing. These executives, constrained by fiduciary duties and the shareholder primacy norm, focus on that bottom line and not on producing a winning team. Morrissey's call to sell the team to an individual, rather than another corporation, reflects the belief that an individual owner might spend irrationally in a way that finally leads the Cubs to win. In many ways, though, it is also a rejection of the capitalist system and Adam Smith's invisible hand.
It's possible that irrational spending on sports franchises is actually socially optimal, if those franchises have what economists call “positive externalities� on the city or community that are not captured in the simple decision of how much to spend to produce a certain level and quality of sports. But if there really is such a market failure, a better way to correct it would be via regulation or public intervention (rather than placing restrictions on who can own a team based on speculation about who might spend in a socially optimal manner). If in fact having the Cubs win would offer benefits to the city of Chicago that are not enjoyed by the team's corporate owner, perhaps the team should be “nationalized� via eminent domain. As many readers recall, the City of Oakland attempted to exercise eminent domain over the Raiders to keep them in the city; that effort was initially well received in the courts but subsequently rejected on dormant commerce grounds.
Posted By : Geoffrey Rapp
David Ortiz: Overpaid or Rewarded?
Message posted on : 2006-04-01 - 06:48:00
I'll admit it: David Ortiz is my favorite Red Sox player since I started following the team in the early 80s. He's the most clutch hitter I've ever seen and sitting in Fenway Park and watching his swing is alone worth the steep price of admission. He's one of those players who today's Red Sox fans will tell their grandkids about, and they'll describe him as a majestic, almost super-human presence. Perhaps not surprisingly, he's also incredibly likeable, adroitly handles media and fan requests, and does a lot of charity work. In fact, I don't think you could find a single person who would say something bad about David Ortiz, the runner up for the 2005 AL MVP award. He only further endeared himself to Red Sox fans by taking a steep hometown discount in 2004 when signing a 2-year contract worth $12.5 million, with a team option for the 2007 season at $7.7 million.
So I was naturally pleased to read that the Red Sox are about to sign him to a four-year contract extension worth $50 million. He could have become a free agent at the end of the 2007 season, but now "Big Papi" will likely remain with the Sox for the rest of the decade.
Not all Red Sox fans are happy, though. Some of the baseball guys on the Sons of Sam Horn message board (whose membership includes Sox owner John Henry and pitcher Curt Schilling) believe that the contract will prove to be a financial albatross for the team, and they employ myriad statistical devices to evidence that assertion. The idea is that Ortiz, who is 30 years old, will decline in production over the course of the contract, and that the 2007-2010 version of David Ortiz will be vastly inferior to the outstanding 2003-2005 version. For instance, a poster named "Fratboy" studied Ortiz's "Marginal Value Over Replacement Player" and concluded, "he'll be wildly overpaid in 2008, 2009, and 2010, and these are the weighted mean projections! Any regression that occurs would be detrimental. You shouldn't be paying $13 million for a $4 million player."
Let's say these gloomy projections are correct and that the great Ortiz indeed devolves into a pedestrian hitter towards the end of his contract. Here's my reaction: Who cares? Ortiz has been profoundly underpaid over the last three seasons, so overpaying him now can be seen as a contractual balancing to a most deserving franchise player and one who exudes all of the spirit and passion expected of a future legend. And plus, think of the message it sends to younger Sox players, who might later approach the bridge that could lead them out-of-town for more money: if you're good to us now by taking a hometown discount, we'll be good to you later by overpaying you then. Granted, that's a "risk" that some players may later regret taking, as they may perform worse than expected after taking a hometown discount, but the point is that by overpaying Ortiz, the Sox can more credibly make that promise.
Plus, now the Sox and Ortiz avoid the inevitable distraction that arises when a franchise player starts to publicly discuss free agency, as well as the acrimony that often emerges when that player becomes a free agent. And although no number or statistical equation will confirm this, distraction and acrimony are real costs inflicted upon a franchise, its players, and its fan base. Red Sox fans know that all too well from the team's prolonged,
embittered, and ultimately failed efforts to re-sign Nomar Garciaparra, who was eventually traded to the Cubs, or Pedro Martinez, who signed with the Mets (subjects that I address in a forthcoming article in the Brooklyn Law Review).
But more conceptually, should new contracts only reflect future performance, or should they also reflect past performance? In other words, what are we actually paying these guys for, the past or the future or both? And what is loyalty really worth, and what does the absence of loyalty really cost?
Posted By : Michael McCann
NBA: No Men in Tights
Message posted on : 2006-03-31 - 18:32:00
I'm not sure a comment is even needed:
League and team sources have told ESPN.com that the NBA, starting next season, intends to ban the tights sported at various points this season by several players, including three MVP candidates: Kobe Bryant, LeBron James and Dwyane Wade.
Although NBA officials are not publicly commenting on the issue, sources say that the league simply does not like the look of players wearing visible hose. It's believed that the league office, which already has regulations in place to curtail short lengths, can unilaterally outlaw tights by simply amending its uniform code before the 2006-07 season.
Sources say that the NBA informed its 30 teams at last month's competition committee meeting in Houston that tights would be banned immediately after All-Star Weekend. But the league wound up holding off on that ban, perhaps to avoid a new controversy after the initial furor sparked by the off-court dress code faded quickly and quietly.
Players who wish to wear tights are required to send the league a written request from a team doctor detailing a "medical need" for the leggings. That's because the league, according to sources, believes that some players are merely wearing them because they like the look.
From Darren Rovell and Marc Stein, "League Would Amend Uniform Code to Ban Tights," ESPN.com, Mar. 30, 2006.
I do know that I will have to add discussion of this proposed policy to the draft of my forthcoming law review article, the title of which will tell you how I feel about it:
Thanks to one of my students, Jason Marsh, for passing this inane story along.
Posted By : Michael McCann
Nigerian Soccer Referees Can Take Bribes But Must Remain Neutral
Message posted on : 2006-03-31 - 12:26:00
From ESPN:Football referees in Nigeria can take bribes from clubs but should not allow them to influence their decisions on the pitch, a football official said on Friday. Fanny Amun, acting Secretary-General of the Nigerian Football Association, said bribery was common in the Nigerian game.
"We know match officials are offered money or anything to influence matches and they can accept it," Amun told Reuters on Friday. Amun first made the statement earlier in the week to a football seminar in the capital Abuja, prompting protests from other officials.
"Referees should only pretend to fall for the bait, but make sure the result doesn't favour (sic) those offering the bribe," Amun said.
The response from Capitol Hill: Why didn't we think of this?
Posted By : Greg
Major League Soccer Turns Ten
Message posted on : 2006-03-31 - 08:52:00
The Kansas City Star points out a coming birthday: Major League Soccer is about to turn 10. The league has certainly evolved: from the massive attendance at Foxboro for New England Revolution games in the early years, coupled with simultaneous fears of an early demise, to a more stable but possibly less ambitious league. Unlike earlier American soccer incarnations like the NASL, MLS does not seem to be aiming for MLB, the NFL, or the NBA. Instead, it is content to be smaller, different, but lasting.
The sports law issues MLS has brought us over the last decade are memorable. Organized as a single Limited Liability Company (LLC) with “investor-owners�, the MLS presented a credible case for application of the so-called “single-entity defense� to a Sherman Act §1 violation. In a nutshell, that defense argues that a single entity is incapable of “conspiring, combining, or contracting� with itself in a manner that offends the antitrust laws. In Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002), the First Circuit cast doubt on MLS's single-entity status. More recently, MLS has pioneered the commercialization of franchise names, as Mike discussed here.
Posted By : Geoffrey Rapp
Ex-Con Denies Giving Bonds Steroids
Message posted on : 2006-03-31 - 08:11:00
Victor Conte, founder of BALCO, speaking on the steps of his home a few hours after being released from prison, denies he supplied Barry Bonds with steroids. Obviously, with witnesses like that behind Bonds, we might as well call off the George Mitchell-led steroids probe right now.
Posted By : Geoffrey Rapp
New Study on College Sports Finances and NCAA Tax Exemption
Message posted on : 2006-03-31 - 06:12:00
The Indianapolis Star's Mark Alesia--arguably the nation's premiere reporter on NCAA issues--has outdone himself in his latest feature: a massive study on how university general funds and students contribute to athletic departments and the interplay of those contributions with the NCAA's tax exempt status as a non-profit entity (Alesia, "Colleges Play, Public Pays," Indianapolis Star, 3/30/2006; Alesia also built an NCAA Financial Reports Database from the story). The NCAA qualifies for the non-profit exemption because it claims to be "organized and operated exclusively for educational purposes." Earlier this month, we discussed a story by Alesia on how the U.S. House and Ways Committee has begun a quiet investigation into whether the NCAA, conferences, and school athletic departments have misused their tax exempt status as non-profit, educational entities (3/14/2006). For this story, Alesia analyzed the 2004-05 athletic budgets of 164 of the nation's 215 biggest public schools. He was assisted by Matt Moore, Mark Nichols, Chris Phillips, Ole Morten Orset, Ben Thomas, Jimmy Trodglen, and Kandra Branam.
So what did Alesia find? First off, he found that athletic departments at taxpayer-funded universities nationwide receive more than $1 billion in student fees and general school funds and services, and that without such outside funding, fewer than 10 percent of athletic departments would have been able to support themselves with ticket sales, television contracts and other revenue-generating sports sources. In fact, most would have lost more than $5 million.
Here are the top the top 10 Moneymaking State Schools and then the Final 4 Schools:
| TOP 10 MONEYMAKERS (using adjusted bottom line) |
| | FUNDING FROM OUTSIDE ATHLETIC DEPARTMENT | | | | |
| | | University, | Total | Total |
% of operating | | |
| | Student | government | outside | operating | revenue from | Reported | Adjusted |
| | fees | support | support | revenue | outside support | Bottom line | bottom line |
| Georgia | 3,028,878 | 0 | 3,028,878 | 68,787,384 | 4% | 23,854,329 | 20,825,451 |
| Michigan | 0 | 0 | 0 | 78,424,186 | 0% | 17,037,042 | 17,037,042 |
| Kansas | 972,123 | 2,214,159 | 3,186,282 | 50,826,019 | 6% | 10,064,665 | 6,878,383 |
| LSU | 0 | 0 | 0 | 60,937,676 | 0% | 5,080,280 | 5,080,280 |
| Texas A&M | 0 | 839,348 | 839,348 | 64,180,453 | 1% | 5,307,357 | 4,468,009 |
| Texas | 1,673,928 | 1,353,382 | 3,027,310 | 89,651,682 | 3% | 7,250,853 | 4,223,543 |
| Iowa | 1,505,016 | 2,127,182 | 3,632,198 | 61,676,257 | 6% | 6,693,599 | 3,061,401 |
| Alabama | 2,550,605 | 0 | 2,550,605 | 62,287,192 | 4% | 5,297,584 | 2,746,979 |
| Kansas State | 566,752 | 2,382,288 | 2,949,040 | 39,884,220 | 7% | 5,489,599 | 2,540,599 |
| Virginia Tech | 5,840,958 | 324,469 | 6,165,427 | 45,730,485 | 13% | 8,265,356 | 2,099,929 |
| FINAL FOUR SCHOOLS | | % from |
| | ATHLETIC FUNDING FROM | | | student, |
| | University | Student fees | Total athletic revenue | government |
| SCHOOLS | government support | (Per student) | (in millions) | funding |
| Louisiana State
| None | None | None | $60.9 | 0% |
| Florida | $1.3 million | $2.4 million | ($45)*** | $77.7 | 5% |
| UCLA | $210,000 | $2.3 million | ($62) | $46.0 | 6% |
| George Mason | $1.6 million | $7.5 million | ($346) | $11.0 | 84% |
Alesia and his staff then studied the effect of taxpayers indirectly subsidizing athletic departments through the tax-exemption. He found that the exemption particularly benefits big schools, which receive up to 40 percent of their athletic revenue from donations, most of which are tax-deductible. At Indiana University, for example, donations constitute 21 percent of revenue; at Purdue, 27 percent. And keep in mind, all of the TV money the NCAA and its schools receive go untaxed--we're talking about hundreds of millions of untaxed dollars there.
Expectedly, there are serious criticisms of this arrangement in light of how big-time college sports appear far more focused on entertainment than education. This is particularly troubling, Alesia notes, considering rising tuition and stagnant state support for higher education. Economist Andrew Zimbalist of Smith College tells Alesia, "The subsidies grossly overestimate the role of intercollegiate athletics in higher education. This should be something that absorbs a much smaller share of outside resources." Moreover, as noted by Professor Rodney Fort of Washington State, "The simple fact is that the athletic department enjoys subsidies in many areas where other departments at the university must pay explicitly."
There is much, much more to this story, and I strongly encourage you to read it, as it is a masterpiece in the empirical research of sports economics. Part II of this story is being published on the front page of Saturday's Indianapolis Star, and it will soon be available on-line.
I also encourage you to check out Alesia's huge database on NCAA Financial Reports. It is the the most detailed, publicly available database of college athletic department financial information ever assembled. I just spent quite a bit of time on it and look forward to spending more.
Posted By : Michael McCann
Daryl Morey, Houston Rockets GM-to-be: Statistics and the NBA
Message posted on : 2006-03-30 - 16:09:00
A congratulations is in order to my good friend Daryl Morey, who has been hired by the Houston Rockets as Assistant General Manager with the understanding that he will become the team's General Manager following the 2006-07 NBA Season. Since 2002, Daryl, who's 32 years old, has been the Celtics' senior vice president of operations and information, and essentially the team's statistical and business guru. A graduate of Northwestern University with an MBA from the Massachusetts Institute of Technology Sloan School of Business, he has been an adjunct professor at MIT Solan in recent years, teaching "Analytical Sports Management" with Bill James as guest instructor. Daryl and I have had some lively arguments about the wisdom of high school players entering the NBA and other issues pertaining to the league. Although we sometimes part ways, I can safely say that the Celtics' loss is the Rockets' gain. Good luck to him and the Rockets. They just hired a really smart, approachable guy with a lot of common sense to eventually run their team.
For reaction from Celtics' fans, check out one of my favorite blogs, Jeff Clark's Celtics Blog.
Posted By : Michael McCann
How Do I get a Job in Sports Law? (Continued)
Message posted on : 2006-03-30 - 13:21:00
Mike had a good post on this question here, but while I have (access to) the floor I might as well add my two cents. This is one of my topics the first day of sports law class, because I like to get it over with. I like to dispel the notion that taking sports law equals a job in sports law; and to let students know up front that Sports Law, as I teach it at least, is not a “show and tell� career development course, but a substantively challenging and thorough academic experience. The first thing I tell my students is that if I really had the answer to the question of how to get the coolest sports law job in the world (NFL commissioner, of course), I'd be off doing that job instead of teaching the class. That's meant to be a little tongue in cheek. But my own insight is a bit limited, since I came to sports law in 2002 by way of teaching and academic (or academic-y) writing. But I do have some thoughts, formed after watching students try (and, in some cases, succeed) in getting wonderful sports industry jobs. My comments below also incorporate lessons offered from practitioners in the field. (I also have the good fortune of being on a faculty with a senior professor – and former dean – who was in a past life a certified NFL player agent, so I have the luxury of being able to point students towards his office if they aren't satisfied with my advice).
(1) Think beyond Jerry Maguire: Most students think that sports law means serving as a lawyer-agent for a player. That is a tough, tough business; it's ruthlessly competitive (the vast majority of “agents� don't have clients!), dominated by a few big firms, corrupting of one's ethical principles, and not all that easy a way of making a living. However, there are numerous other wonderful and interesting sports law jobs out there. Some that I think are most promising are NCAA compliance officers (increasingly holders of J.D.s) and public school district lawyers (I have an uncle who does this work and is probably involved in more sports law issues than any lawyer I know).
(2) Be flexible, opportunistic, and aggressive: Sports law jobs are highly sought after, and sometimes arise through luck, fortune and circumstance. You might have a next door neighbor with a kid who happens to be a 15-year-old left-handed power-hitting catcher. Be nice, because that kid might need an agent some day. You might be offered the chance to work for a team at a lot less money than you'd make as a lawyer at a big firm. You have to be able to quickly commit to such opportunities, should they arise. Persistence of course will pay, as it always does. Those who are committed to sports law can usually find a way; it's folks with more casual commitments (rather than true passion) that usually end up doing something less interesting.
(3) Take these classes: In law school, if you have the chance, you should take Antitrust, Drafting (as many drafting classes as are offered), Negotiation, Arbitration, Labor Law, Intellectual Property (including trademark and copyright), Federal Income Tax, Estate Planning/Wills/Estate Tax, Immigration Law (especially for those interested in baseball and basketball work) and Sports Law. Some people might add other subjects to the list, but these are the ones I think tend to be most useful.
(4) Never eat lunch alone: This is generally a good strategy for getting a job. Networking matters, as painful as it sometimes is. I would add that it always pays to treat people
in a kind and decent fashion, even if you don't think they have something to offer you. You never know when the person sitting next to you on a plane is the GM of a team bumped from his first class seat; that person might be able to give you advice, or a job, but certainly won't if you're rude, condescending, or shy.
Posted By : Geoffrey Rapp
Law Schools with Sports Law Profs
Message posted on : 2006-03-30 - 13:12:00
Each year, the AALS (Association of American Law Schools) releases the “AALS Directory of Law Schools.� Law profs self-identify by subject interest, and at the back of the book, there are lists divided by subject. Some readers (future law students?) might be interested in which law schools have self-identified “sports law profs� as tenured or tenure-track faculty members (at many schools, Sports Law is taught by an Adjunct Professor – meaning, someone who has a full-time job other than teaching law). In approximate alphabetical order, here are the schools with sports law profs (where schools have more than one sports law prof, I have indicated that):
Akron; Alabama; Arkansas (2 profs); Barry; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Cincinnati; Cooley; UConn; Depaul (2 profs);University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Illinois; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola – LA; Marquette (3 profs); Maryland; Miami; Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); New England; New Mexico; North Dakota; Nova Southastern; NYU; UNC; Nebraska; Northeastern; Northern Kentucky (2 profs); Ohio Northern; Ohio State; Oklahoma; Pepperdine; Puerto Rico; Richmond; St. John's; Saint Louis; St. Thomas (MN); Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn; Western New England; West Virginia; Whittier; Widener (2 profs); Willamette; Yale.
A few caveats. First, this list is “self-identified� sports law professors: The fact that an academic believes s/he is an expert in a subject may not always mean s/he actually is (there are a few self-identified sports law professors I would not consider to be sports law professors, in that they have neither published anything about sports law nor possess significant sports law practice experience, but out of politeness I will not name names). There may also be some faculty members who are sports law profs in a broad sense (for example, who serve as NCAA Faculty Athletic Representatives for their universities) but who do not self-identify as such. Second, the number of professors in a subject area may not be the same thing as number of courses offered or depth of coverage. Third, this list was based on an April 2005 survey, so it may not accurately reflect recent hires or recent departures (e.g., Illinois's sole sports law prof, Stephen Ross, is leaving for Penn State). Fourth, although I am not certain of this, the AALS directory probably only includes law schools that are fee-paying members of AALS (some aren't).
Posted By : Geoffrey Rapp
A Few Good Topics
Message posted on : 2006-03-30 - 12:20:00
MORE BONDS: Professor Howard Wasserman of Florida International University College of Law has two excellent columns on FindLaw concerning Barry Bonds and the steroid controversy (3/24/2006; 3/27/2006). A third colum, discussing Bonds' lawsuit and its First Amendment problems, will be on FindLaw on Monday. As you may remember, Howard guest blogged on Sports Law Blog last month and wrote a fascinating piece on the constitutional protection of "sport speech" or "cheering speech" (2/2/2006).
INTERNATIONAL AGENCY BIAS FOR HOMETOWN ATHLETES: University of Massachusetts sports management student Sokki Chen (who will be interning at the International Paralympic Committee in Germany this summer) alerts me to a story from Switzerland regarding a Swiss court's apparently favorable treatment of Swiss cyclist Danilo Hondo (Bradley S. Klapper, "Confusion After Swiss Court Suspends Two-Year Doping Ban," Associated Press, 3/22/2006). Hondo had been suspended by the Swiss-based Court of Arbitration for Sport ("CAS") after twice testing positive for the stimulant carphedon. He challenged his ban through a provision in CAS statutes that allows residents of Switzerland--and only resisdents of Switzerland--to appeal to a Swiss provincial court, which lifted Hondo's ban. In glaring contrast, non-Swiss residents can only challenge CAS rulings at the Federal Tribunal - Switzerland's highest court - and only if the case was run "manifestly contrary to the general principles of law." In other words, there's some hometown cooking going on at the CAS, which is supposed to be an independent international agency for the settlement of sports disputes.
DETRIMENTAL RELIANCE AND COLLEGE COACHING JOBS: Mississippi College School of Law student Lance Mixon passes along a story concerning a recent lawsuit filed by former University of Miami assistant head football coach Art Kehoe--who served on the coaching staff for 25 years until he was fired Jan. 2--against the school. (Susan Miller Degnan, "Kehoe Files Suit vs UM," Miami Herald, 3/21/2006). Kehoe, who is now as assistant coach at the University of Mississippi, claims that he is entitled to a severance package that includes the loss of potential income from two possible coaching jobs at Southern California (offensive line) and Temple (head coach) he did not take because he believed his job was secure at UM. That will be a tough claim to prove unless he had concrete offers from those schools.
Posted By : Michael McCann
Piper Rudnick Lawyer George Mitchell to Lead MLB Steroids Probe
Message posted on : 2006-03-30 - 10:18:00
Bud Selig has asked 73-year-old attorney George Mitchell to investigate allegations that Barry Bonds and other players used steroids (these allegations surfaced in the recent book Game of Shadows). Mitchell is a former U.S. Senator from Maine, majority leader of the Senate, and, at one time at least, had his name floated for the MLB Commissioner's job. Another lawyer, yet to be named, is expected to serve as lead investigator.
Mitchell brings years as a Washington insider and power-broker to the table, as well as experience trying to get parties with deep divisions to get along (he worked toward a settlement in Northern Ireland). Some commentary has questioned whether he is sufficiently independent from MLB and team owners to lead this probe. The probe's mandate would seem the far more important consideration. Will it be focused on Barry Bonds? What evidentiary standard will the investigation employ before concluding that a particular player used steroids? Will Mitchell and his team have the authority to recommend sanctions, or will they report “just the facts�?
UPDATE: John Dowd, the lawyer who investigated Pete Rose for gambling, thinks Mitchell is an uninspired choice without a "great track record." On that question, Dowd may himself have a conflict of interest, since he has been mentioned as another possible choice for the steroid probe.
Posted By : Geoffrey Rapp
Vince Young & the Legal Treatment of the Wonderlic Test
Message posted on : 2006-03-29 - 17:52:00
Last October, Professor Rick Karcher here and Mike here discussed the Wonderlic test as a screening tool for NFL players and its possible racial implications, respectively. I hope they picked their brackets this year with as much foresight: The relevance of these posts to Texas quarterback Vince Young's draft status following his poor Wonderlic performance is undeniable.
Out of curiosity, I ran a quick database search of the case law to see how courts have treated the Wonderlic test. An interesting case is E.E.O.C. v. Atlas Paper Box Co., 868 F.2d 1487 (6th Cir. 1989), cert denied 493 U.S. 814. In that case, the Sixth Circuit confronted the question of whether the use of the Wonderlic test to screen clerical workers was employment discrimination because of its disparate impact on African-Americans. The court opined, “There is no fixed and firm rule regarding criterion for analyzing studies related to the cognitive ability test relied upon by [defendant employer]. They must generally be evaluated by examination of ‘important elements of work behavior that comprise or are relevant to the job.'� The courting continued, “We make no judgment on this record as to whether, in theory, the proper use of the Wonderlic test may not be demonstrated to be job related in the case of clerical hires. If a defendant uses such a test, it must show that the ‘procedure used measures important skills, abilities, and knowledge that are necessary for the successful performance of the job.'�
Could NFL teams prevail under this standard? Does the Wonderlic test measure “skills, abilities and knowledge� that are “necessary� for “successful performance of the job�? Consider: Joey Harringon (Wonderlic – 32), Donovan McNabb (Wonderlic – 16), Daunte Culpepper (Wonderlic – 15). Which of these three is looking for a job?
Posted By : Geoffrey Rapp
The Duke Lacrosse Attack: Tragic Story But Not Sports Law
Message posted on : 2006-03-29 - 13:17:00
It has not been a good PR week for my alma mater. For the past few days, the story coming out of Durham about a party gone bad keeps getting worse and worse. Deadspin has a good collection of links, as does this blog that is exclusively tracking the story. For those that haven't heard, a group of 40 male students at Duke, most of whom (if not all) are on the lacrosse team, had a party at an off-campus house. They hired some entertainment in the form of two exotic dancers. According to the women, who are black, the all-white crowd chanted racial slurs at them as they performed. The women started to leave the house, but were convinced to return. Then, one woman claims she was beaten and raped in a bathroom by some of the men at the party. Obviously, these are horrendous charges and Duke and the Durham Police are taking appropriate steps to discover what really happened that night. (News & Observer)
As the media continues to run with the story, I keep hearing about how this is a "sports law" case. I could not disagree more. This is a case about a few men, who happen to be athletes, that may have committed an inexcusable crime against another human being. The athletes also happen to have been in a big group (perhaps leading to a mob mentality) and even more importantly, were undoubtedly drunk. The fact that they happen to play a sport (lacrosse) does not make this "sports law."
In fact, one of the purposes of this blog is to get away from the idea that "sports law" is about athletes committing crimes. "Sports law" is about how sports affect the development of law, and how the law impacts the games we play and watch. Sports don't cause athletes to break the law. Of course, some athletes commit crimes. There have even been some studies that suggest that male athletes, especially those that play "helmet sports," may commit more violent crimes than the average male. But there are approximately 200,000 sexual assaults and rapes in the United States each year (and that number may be low due to incidents that are not reported). I don't see a lot of stories about rapes by football players, hockey players and lacrosse players -- and these incidents are far more likely to be reported than an average sex crime. If you want to blame something other than the men themselves, I would point to alcohol before I looked to lacrosse. Or the group setting. Or the fact that they are in college, when approximately five percent of college females will be the victim of rape or attempted rape in a given year. But if this story is true, the blame should fall squarely on the men that committed these reprehensible acts.
Lacrosse (along with football, hockey, etc) is a violent sport. But the reputation of the sport may go too far in finding links where none exist. The overwhelming majority of athletes can leave their aggression where it belongs -- on the field, just as the overwhelming majority of people can drink responsibly, have a party and even hire adult entertainment without committing a felony. To link this incident to lacrosse is to shield those who deserve to be vilified. And if you don't see a connection with the sport, then there is really nothing that makes this "sports law."
Posted By : Greg
Upcoming Society for American Baseball Research Conference in Seattle
Message posted on : 2006-03-29 - 10:57:00
Some readers may be interested in the Society for American Baseball Research (SABR), an organization that promotes academic research about the sport. Each year, SABR members gather at a multi-day convention, featuring some very interesting (and intellectually challenging) presentations. This year's convention is in Seattle June 28 to July 1. Sports law fans may find most interesting the collective bargaining panel, featuring Andrew Zimbalist (founding father of sports economics), sports agent Dick Moss, and former major league pitcher Mike Marshall, with ESPN's Rob Neyer moderating. I made it to SABR's convention in 2004, when it was in lovely Cincy, Ohio, but missed last year's Toronto event. Be warned: SABR members are intense about baseball, but the conversations are at a pretty high level. The organization as a whole is history and statistics focused, and could use a greater level of baseball law attention (perhaps including a section on the Law of Baseball, to supplement the existing Business of Baseball section).
Posted By : Geoffrey Rapp
The Silliness of NCAA Eligibility Rules
Message posted on : 2006-03-29 - 07:47:00
Last night's news that Notre Dame football player Tom Zbikowski will make his professional boxing debut this summer exposes the silliness of NCAA eligibility rules, which were used to stop skiier / CU football player Jeremy Bloom from both playing football and earning endorsement monies to subsidize his expensive skiing competitions. Why Coach Weis would "sign off" on letting one of his players get punched in the head a few months before ND begins its hunt for the national championship is a mystery to me. Equally mysterious is how any reasoned distinction can be drawn between letting athletes get paid to box, and letting them endorse brightly colored ski pants. Hat tip to UT 2L James Schwegler for forwarding me the story.
Posted By : Geoffrey Rapp
A "Mike Davis" Clause in Coaching Contracts?
Message posted on : 2006-03-28 - 22:21:00
Details of new Missouri basketball coach Mike Anderson's contract are here. The former UAB coach has agreed to "'be a loyal employee'" and not (according to CNNSI's summary) "bad mouth" the university. The "loyalty" clause is somewhat superfluous, since all employees are agents of their employers owing fiduciary duties of loyalty. The "bad mouth" clause, however, raises interesting enforceability questions (specifically, what would constitute a violation of the clause). Non-disparagement clauses are regularly part of settlements or severance / termination agreements. But it might work out differently for an employee in service. Sometimes, part of being a coach is bad mouthing. For example, "We played terribly tonight." Would that be grounds to stop paying Coach Anderson? Presumably, the contract also includes an arbitration clause, so ultimately, if push comes to shove, we are unlikely to get a court ruling on the viability of such a clause.
Posted By : Geoffrey Rapp
Big Unit, Small Heart? Randy Johnson Sues Mother of Secret Love Child
Message posted on : 2006-03-28 - 19:22:00
Michael Wheatley and Dave Goldiner of the New York Daily News report on a lawsuit filed by New York Yankees pitcher Randy Johnson against his ex-girlfriend Laurel Roszell, who gave birth to Johnson's first child, Heather, back in 1989 (Wheatley & Goldiner, "Randy Beams Ma of Love Child," New York Daily News, 3/28/2006; see also Smoking Gun). Johnson and Roszell broke up while she was pregnant, and Johnson has only seen Heather once and that was right after she was born (Dan Mangan of the New York Post reports that Heather has repeatedly written to Johnson to meet with him, but he has refused). In 1997--when Heather was 8--Johnson agreed to pay $5,000 a month in child support, plus another $750 in monthly day care expenses. Johnson now demands that Roszell return $71,000 in pre-paid day care payments, plus $26,000 in interest because Heather has not been in day care for at least five years. Johnson contends that Roszell is receiving a windfall for expenses that she did not incur.
Family law is outside my area of legal expertise, so I'll refrain from opining on the merits of Johnson's claim, but as a practical matter, does it really make sense to sue the mother of your daughter who, despite her efforts, you have refused to include in your life, for $97,000 when you make $16 million a year and when you have earned over $100 million in your career? This seems to be an instance of where one should turn to common sense before the law.
Posted By : Michael McCann
Astros' Bagwell-Related Insurance Claim Denied
Message posted on : 2006-03-28 - 10:17:00
Unsurprisingly, the Connecticut General Life Insurance Company denied the Houston Astros' insurance claim for $15.6 million based on the supposed disability of Jeff Bagwell. A good overview of the dispute from the Houston Chronicle can be found here. With this much money at stake, the insurer is unlikely to make payment until such time as the insured has a cognizable claim for bad faith denial. This dispute is likely headed towards arbitration or litigation; if Bagwell in fact plays (for the Astros or another team) this year, the Astros will likely face an uphill battle proving he's disabled.
The truth is, much of the Astros' desperation to rid itself of Bagwell has nothing to do with his gimpy shoulder. Instead, the Astros know that Bagwell is of little value to the team in the post-steroids era. Bagwell has long been alleged to have been a steroid user, if not the “root of all steroid usage in the league.� Now that baseball has gotten (a little bit) tough on steroids, Bagwell's MVP days are done.
I wonder whether the Astros could seek to rid themselves of Bagwell using some sort of contract theory. A few come to mind: fraudulent inducement, changed circumstances, or possibly simple breach. The Astros could claim Bagwell omitted a matter of material fact – his (alleged) use of steroids – and that they were fraudulently induced to enter the contract. That's a hard sell since the Astros would have to show they did not know and should not have known of his use. A better claim might be based on change of circumstances – that the new steroid policy has frustrated the purpose of the contract (which was to employ Bagwell, an alleged steroid user). The best claim might be simple breach: to the extent that between 2000 and 2005 Bagwell used a banned substance, he may have violated MLB rules (which are incorporated into the standard player contracts), and thus breached a material term of his contract.
I doubt the Astros will pursue any of these claims, because it would subject their 1992-2005 locker room to intense scrutiny about who was using what and who knew what when.
UPDATE: Readers have raised questions about the citation to the "Bagwell Conspiracy" article, and, after further research, that source was probably not the best one to cite (I have now learned the author of that site meant it as "kind of a joke," see here). I merely meant to point out that that there have been rumors and speculation about Bagwell; these rumors are discussed here.
Posted By : Geoffrey Rapp
Pistons-Pacers Brawl Beer Thrower Convicted
Message posted on : 2006-03-28 - 09:41:00
Pistons fan John Green, caught on tape throwing a beer at Ron Artest and sparking the infamous "Basketbrawl" in the fall of 2004, was convicted of misdemeanor assault and faces jail time and a fine. Interestingly, he was acquitted of actually tossing the cup, but convicted for punches he threw at Artest after the former Pacer entered the stands. Green plans to appeal on the grounds that Artest's failure to attend his trial violated his Sixth Amendment right to, in Green's words, "have him here." Funny, but I don't think those words are in the 6th Amendment. Even if Green loses or abandons his appeal, the civil cases arising from the brawl are likely to drag on for years.
Posted By : Geoffrey Rapp
Strange "Superfan" Lawsuit
Message posted on : 2006-03-27 - 18:47:00
The Wall Street Journal's Law Blog relates the curious case of an Alabama Crimson Tide fan who has sued a New York Times reporter after a photo of the fan's Crimson Tide-themed RV was featured on the cover of the book Rammer Jammer Yellow Hammer, the subject of which is apparently the rabid fandom of Alabama fans. The case claims breach of contract, outrage, and invasion of privacy; the claimed damages appear to be groundless. Out of fear of having my hosts sued, I won't post this strange picture of the RV in question.
Posted By : Geoffrey Rapp
The Idiocy of Spring Training Brawls
Message posted on : 2006-03-27 - 17:32:00
Gordon Edes of the Boston Globe reports that the Boston Red Sox and Tampa Bay Devil Rays were involved in a bench-clearing incident in their spring training game today. The Red Sox also had a bench-clearing incident in yesterday's game. In today's game, Sox reliever Julian Tavarez threw and landed a punch at Devil Rays outfielder Joey Gathright after Gathright slid into home plate attempting to take out Tavarez, who was covering. Players from both dugouts then rushed the field, with Sox pitcher Jonathan Papelbon and Sox hitting coach Ron Jackson pulling Gathright up from the ground. Devil Rays outfielder Carl Crawford then threatened players in the Red Sox dugout, although the parties were restrained by that point. The tensions apparently started in the fifth inning when Red Sox first baseman Hee-Seop Choi was plunked by a Wayne Franklin pitch and both sides were warned.
Although the Red Sox and Devil Rays have a history of bench-clearing incidents, a spring training fight shows incredibly poor judgment by the players involved. Obviously, these games don't count and are played merely to help the players prepare for the regular season, and yet now Tavarez and perhaps others will be suspended for regular season games. One could argue that any brawl is idiotic given the likely sanction, and that it reflects poor sportsmanship, but depriving your team of your services due to a spring training fight seems worse. Really, what are you possibly fighting for? The Grapefruit Cup? And I wonder: should players who fight in spring training games face harsher penalties by Major League Baseball, given the extra-stupidity of their decision? Obviously, the penalties reflect collective-bargained parameters, but maybe the parameter needs to be widened for nonsensical spring training fist-a-cuffs.
Posted By : Michael McCann
Race Car Driver Paul Dana's Death and “Assumption of Risk� in Sports Law
Message posted on : 2006-03-27 - 14:54:00
Sadly, IRL driver Paul Dana was killed during a warm up lap for the season-opening race. As reported here: “While streaking around the Homestead-Miami Speedway oval during a warmup session, Dana failed to notice that another car had spun to a stop, slamming into it at close to 200 mph.� Dana died two hours later.
There are obvious tort law / wrongful death issues present in these and other tragic tales. Was the driver of the stopped car, Ed Carpenter, negligent in crashing his own vehicle into the wall? How about track designers, for failing to make more obvious the yellow warning lights? To be sure, blame could be placed on Dana as well; according to a fellow driver, “He carried way too much speed in and wasn't aware of what was going on around him.�
As Greg explained here, the doctrine of “assumption of risk� typically prevents participants from recovering via tort for injuries that arise from “natural� parts of the game. This doctrine, along with Dana's apparent negligence, would likely bar recovery for his death.
The survival of assumption of risk in sports law even in jurisdictions that have moved away from assumption of risk generally (and towards the modern “comparative negligence� doctrine) is surprising. It likely results from the kind of sickening sentiment that infects courts' sports law jurisprudence (perhaps best illustrated by “Part I� of Justice Blackmun's decision in Flood v. Kuhn).
As a sometime teacher of first-year tort law, I challenge students to consider the incentive effects of different tort rules. What would happen if assumption of risk did not bar Dana's (estate's) recovery? Well, one of two things. Either the IRL (and other racing circuits) would implement greater safety precautions (speed limitations, more warning flags, etc.) designed to reduce the risk of serious injury and resultant liability. Or the IRL would insure against such risks, incurring the cost of higher premia; such costs would be passed on to viewers / spectators / television sponsors.
Most students intuitively defend assumption of risk on the grounds that changes like more aggressively deployed “caution� flags (or nets protecting baseball spectators from foul balls) would “ruin� a sport. Judges, I suspect, often reach their conclusions based on similar instincts. But note what I've said about the incentive effects of abolishing assumption of risk in sports: Either the game would change, or IRL would buy more insurance and pass on to fans the costs of premia hikes. If in fact greater safety measures would “ruin� racing, then the IRL would likely pursue the greater-insurance solution. Yes, fans would probably end up paying more for their tickets; but since it's the fans that are enjoying the benefits of non-ruined racing, isn't it most fair to let the fans bear the cost?
Posted By : Geoffrey Rapp
George Mason, College Sports and U.S. News Law School Rankings
Message posted on : 2006-03-27 - 10:13:00
This week, U.S. News and World Report releases its oft-maligned yet unquestionably powerful ranking of American law schools. Schools like mine—which flit between the bottom of the “second tier� and the top of the “third tier�—anxiously await the results. Life in the “second tier� means more submissions to our law review, better applicants from outside of our “region�, and more success at recruiting top candidates for law professorships.
In spite of its flaws, the U.S. News rankings are fascinating, in a certain sense. They have spawned a cottage industry of rival law school ranking methodologies, as well as sparked academic debate about the meaning of rankings and their effect on law schools.
What I'm wondering today is whether there is any effect of the performance of college sports teams on law school rankings. Two components of the U.S. News are “academic reputation,� which is calculated by polling four employees of each of the nation's law schools (the Dean, the Associate Dean, the chair of the hiring committee, and the most recently tenured faculty member), and “reputation among lawyers and judges,� in which (we think) U.S. News polls practitioners in the state in which the law school is located.
These two measures together constitute something like 40% of the “score� for a law school, and they fluctuate wildly and often have little to do with either the quality of faculty scholarship (something you'd think would affect academic reputation) or student bar passage (something you'd think would affect reputation among practitioners). Part of the problem with these measures is that an associate dean in a law school in Los Angeles may be able to rank Harvard and Yale, but unless they are particularly savvy, probably has never heard of a law school like mine. Whether that person gives us a “1�, “2� or “3� out of “5� plays a huge role in our score. But odds are, they've not heard much about us, certainly not enough to give any sort of accurate ranking.
But what if our sports teams suddenly start doing better? Now, suddenly, a school like mine might be one people on the east or west coasts have heard about. Might law school rankings be affected by “break out� years for second, third and fourth tier schools' undergraduate sports teams? Even first tier schools might benefit. For example, George Mason University has a wonderful law faculty (from a publishing perspective), which is amazingly productive in the area of law and economics. Indeed, GMU law professors produce more scholarship on a per capita basis than nearly any other school. But GMU seems to be stuck in the lower part of first tier (sometimes slipping into the second or third tier), never able to pass larger, better known schools. My guess is this is mostly because the law school is tied to (and anchored by) a third-string state university system (in Virginia, GMU as a whole lags behind UVA, Virgnia Tech, and the College of William and Mary in terms of prestige for state-run institutions). I wonder if things might begin to change now that GMU's basketball team has had a break-out year in the NCAA tournament, advancing to the Final Four. Two years from now, perhaps we'll see an even higher placement for GMU Law. Similarly, I wonder if the recent strength of the Mid-American Conference (MAC) in football (in which MAC QBs like Chad P., Byron L., Ben R., Omar Jacobs and Bruce Gradkowski were, or were predicted to be, playing on Sundays) might eventually help buoy MAC law schools like Toledo, Northern Illinois, Akron, and Buffalo into higher rankings. For instance, Marquette's law school may have benefited reputationally through the contributions of Dwyane Wade, who never wrote a law review
article or sat for the bar exam.
On the other hand, at the very top, academic reputation might suffer with athletic success. Many professors – more in arts and sciences but also in law school – still remember being the awkward nerdy kid picked last in sports. They might punish schools in their “academic reputation� when their undergraduate teams do well. For example, Stanford is a wonderful institution, but never seems to attract the reputation of a Harvard or a Yale. Is that because in addition to turning out great scholars, the school turns out great athletes? Schools like UVA, which are near the top in the law academic ratings, perhaps should be careful what they wish for next football season.
UPDATE: The Sports Economist addresses the likely effect of GMU's Final Four appearence on the university as a whole, and mentions some empirical research conducted on the subject of how universities benefit from "breakout" sports seasons.
UPDATE #2: GMU now faces a danger that its basketball success may cut into class time. Are diminished bar passage rates in the school's future?
UPDATE #3: Law profs Larry Ribstein and Todd Zywicki weigh in.
Posted By : Geoffrey Rapp
Barry Bonds to Sue Game of Shadows Authors, But NOT for Libel
Message posted on : 2006-03-23 - 19:10:00
Attorney Michael Raines, who represents Barry Bonds, plans to file a lawsuit against the authors of "Game of Shadows" (Mark Fainaru-Wada (top) and Lance Williams (bottom)) alleging that they violated California's Unfair Competition Law by using "illegally obtained" grand jury transcripts in writing the book. The lawsuit will ask for damages at least equaling all profits generated by the book's sales. We recently discussed the book and its allegations on Sports Law Blog.
Perhaps more interesting than this lawsuit is what it isn't: a libel lawsuit. If Bonds used steroids and lied about it under oath, a libel suit would have been disastrous for him. A court would have to weigh the veracity of the book's allegations, as truth is a defense to a libel charge. In other words, and fairly or unfairly, Bonds not suing for libel might intimate an admission on his part as to the book's claims, for if those claims weren't true, then Bonds would presumably sue for libel; the fact that he hasn't seems telling (especially since he is obviously willing to sue the authors on another ground -- it isn't like he has an aversion to litigation). Granted, libel claims are extremely difficult to prove, and that is especially true for public figures, but is that really the reason why Bonds isn't suing for libel?
As to the unfair competition claim, this lawsuit will focus on how the Fainaru-Wada and Williams obtained the grand jury testimony (an ostensibly safer topic for Bonds personally). Interestingly, according to an excellent article by attorneys at the law firm of Stroock & Stroock & Lavan, the California Unfair Competition Law (California Business and Professions Code Sections 17200 through 17209) is the state's most frequently used consumer protection statute, with the number of related cases by both private and governmental plaintiffs increasing from year to year. The law is especially popular because, unlike other unfair and deceptive practices statutes, intent is irrelevant, as a "Section 17200 plaintiff" is not required to show that the defendant actually intended to injure anyone. Moreover, a viable Section 17200 claim can encompass any unlawful, unfair, or fraudulent business act or practice, and, meaningfully, a practice can prohibited as "unfair" or "'fraudulent" even if it is not unlawful. And if the practice is unlawful, a plaintiff does not even have to show that the plaintiff was actually injured. In other words, the California Unfair Competition Law is very favorable for plaintiffs.
But will it be favorable enough for Bonds? That remains to be seen, and we can be sure the attorneys for Fainaru-Wada and Williams will attempt to shape the lawsuit in a way that could force Bonds to answer the book's charges. In any event, the bigger story appears to be that Bonds has sued the authors of Game of Shadows and it isn't a libel suit.
Posted By : Michael McCann
Yankee Hater Logo, Trademark Law, and Corporate Paranoia
Message posted on : 2006-03-23 - 12:41:00
ESPN's Darren Rovell has a great piece on Mike Moorby, a 38-year old financial advisor from New Jersey who created a side business devoted to all things hating the New York Yankees. (Rovell, "The Yankee Hater Biz," ESPN.com, 3/22/2006). I know what you're thinking: Why hasn't anyone come up with this concept before? After-all, who could possibly like the New York Yankees? But I digress. Moorby is a diehard Red Sox fan who thought it would be fun to create a Yankee Hater ("YH") logo.
Moorby's business, Rebel Forces LLP, took off in 2004 when such Red Sox players as Curt Schilling and Kevin Millar started wearing hats with the YH logo. But the fun stopped when Major League Baseball sent him a cease-and-desist letter, and when the Yankees filed an opposition to his trademark application. A hearing before the Trademark Trial and Appeal Board could occur in the coming months. The Yankees claim that consumers are confused by the similarity in logos (even though the logo and colors seem obviously different):
Rovell interviewed two persons for the story, including me. Needless to say, this is a story that I loved being interviewed about:
Two legal experts contacted by ESPN.com, however, say that it's possible Moorby can defeat the almighty Yankees. Winning a trademark case, they say, requires proving either that a certain brand has been compromised or that there is confusion about who is selling the product.
"The Yankees aren't hurt by this," says Marty Schwimmer of Schwimmer Mitchell, a trademark law firm in New York. "Add to that the fact that sports owners have accepted the degradation of their names and logos as part of 'good-natured' tarnishment. It's all part of the game." As evidence, Schwimmer cites colleges that routinely make licensing royalties by allowing their mascot to be demeaned by an opposing school's mascot on merchandise, as, for example, the University of Alabama does when it contracts with a merchandising company in Auburn, Ala., that prints T-shirts featuring 'Aubie' spanking little Alabama elephants.
"This is the classic case of corporate paranoia," says Michael McCann, an assistant professor at the Mississippi College School of Law. "If they try to make the case that consumers are confused as to what is being sold here, that's absurd. You don't even have to be a baseball fan to recognize the difference between a Yankee Hater logo and a Yankees logo."
You'd think the Yankees would have other things to worry about, like their aging pitching staff or how their brand new (yet 32-year old) $50 million center fielder is already hurting, but I guess not.
Posted By : Michael McCann
Callaway Files Lawsuit Over Patents
Message posted on : 2006-03-23 - 09:50:00
The legal community has been abuzz for weeks about the state of the nation's patent law (yes, some people do get excited about patent law), in the wake of the Blackberry/RIM lawsuit and settlement. The Supreme Court will also address a key patent issue next week. Some believe that the current patent system does not reward innovation, but rather allows a patent-holder to "sit" on a patent and develop it into a product, instead waiting until a company uses the technology and suing for millions. This is called patent trolling. Others believe the system works as intended, rewarding a company that had its intellectual property commandeered and used for profit.
Sports are also affected by patent law. (See Bambauer, Legal Responses to the Challenges of Sports Patents, 18 Harv. J. L. & Tech. 401). The latest battle is in golf. The most popular, most tour-validated and most revolutionary ball in the history of golf is now the principal exhibit in a lawsuit involving golf's two largest companies.
On Thursday, Callaway Golf filed a complaint in U.S. District Court in Delaware against Acushnet, alleging that Acushnet's Titleist Pro V1 line of golf balls infringes on four or more golf ball patents owned by Callaway. The lawsuit, says Callaway spokesman Larry Dorman, was filed "only after repeated attempts to negotiate a settlement failed." He would not specify how long the companies were negotiating, other than to say "quite a while."
(ESPN). The issue in this case is different from the Blackberry case. Callaway acquired a number of patents when it purchased Top-Flite from bankruptcy in 2003, including several that dealt with "the construction of a multilayer ball with a solid core and a polyurethane cover." Now, the engineer that developed that patented technology is at Acushnet and Callaway claims he has used the technology to develop the Pro V1 golf ball. Acushnet responds that the engineer has developed new technology, that does not infringe on the existing patents. The outcome of the dispute, which may require a lengthy trial, could be worth hundreds of millions of dollars.
Posted By : Greg
Soriano Surrenders: He will Play Left Field for Washington Nationals
Message posted on : 2006-03-22 - 17:24:00
Yesterday Joe Rosen posted about Alfonso Soriano's refusal to play the outfield for the Washington Nationals, and how the Nationals had threatened to place him on the Disqualified List, which would have required him to forfeit his salary and would have embarrassed and stigmatized him in the baseball community. A few hours ago, in a sign of Detente between the two parties, Soriano acquiesced and agreed to play left field for the Nationals. An All-Star the last four years at second base, Soriano will now take a new position in what will likely be his only season in Washington, as he is set to become a free agent at the season's end. He intends to return to second base in the 2007 season.
Soriano's acquiescence takes away what could have become a landmark case in sports law, as it appears that no player in a major sport has ever refused outright to perform his assigned job. And a fight was clearly on the horizon: the Major League Baseball Players' Association expressed unambiguous support for Soriano, and Attorney Jeffrey Kessler--who argued the case of Terrell Owens for the NFLPA--characterized the purported punishment of Soriano as "excessive" and possibly beyond the scope of any collectively-bargained provision. Had it continued, the dispute between Soriano and the Nationals would have likely been heard by an arbitrator.
Although the Soriano story appears over, the larger issue remains: Should players be forced to forfeit their salaries if they refuse to play a position? If the answer is "yes," then players need to communicate these position preferences to their agents, so that they are negotiated in the contract. Soriano, through his agent Diego Bentz, presumably could have negotiated a position clause in his contract, but I have not read that he did so. Rick Karcher has written extensively about the failure of agents to maximize their clients' preferences, and it is a subject very relevant in this discussion.
But was the putative penalty--forfeiting Soriano's salary and, by placing him on the suspended list, stigmatizing and embarrassing him--appropriate? After-all, he wasn't holding out or bad-mouthing the organization. Nor was seeking more money or necessarily a new team. In fact, he was more than willing to play for the Nationals, at least under a certain set of conditions. Although I normally take the players' side on matters, I tend to think the Nationals had the right to remove Soriano from the team, or any player who engages in positional insubordination. Soriano's contract calls for him to play for the team which pays his contract and presumably in a way that team deems most appropriate. He clearly didn't like being traded from the Rangers to the Nationals, but then again, whose fault is that? Couldn't his agent have negotiated a no-trade clause?
Moreover, it's unlikely that allowing the Nationals to disqualify Soriano would have led to a slippery slope of perverse incentives in professional sports. Along those lines, I find it far-fetched to think that teams would require players to play positions that those players would find so repugnant that forfeiture would actually make sense -- for instance, I can't see the Red Sox telling a vastly overpaid Mike
Lowell, "look, we're going to move you from third base to catcher" because they believe he would rather forfeit his $8 million salary than play catcher (although I wish that had tried that maneuver with Kevin Millar last year, but that's another story).
Posted By : Michael McCann
The Law of Thirst: Gatorade Sues Powerade
Message posted on : 2006-03-21 - 19:20:00
ESPN's Darren Rovell on his Gatorade Blog writes about a lawsuit filed by PepsiCo, the makers of Gatorade and Propel, against Coca-Cola, the makers of Powerade, in the U.S. District Court for the Northern District of Illinois. The lawsuit claims that Coca-Cola is airing a misleading advertisement by claiming that "Powerade Option" has 80 percent fewer calories than "Gatorade." The problem, as Rovell writes, is that Powerade Option is a fitness water that competes with Coca-Cola's Propel, also a fitness water--and not Coca-Cola's Gatorade, an energy drink--and Option and Propel have nearly the same caloric content. But Coca-Cola apparently contends that it seeks to market Option as an energy drink, rather than as a fitness water, so the comparison between Option and Gatorade should be considered fair.
Rovell writes:
You can't say we didn't see this coming. I knew the people at Gatorade were really mad when they saw the bottles of POWERade Option. Their problem was that the bottles and the advertising claim to have "80 PERCENT FEWER CALORIES THAN GATORADE." The issue of course is that they are clearly not comparing apples to apples. POWERade Option is Coca-Cola's answer to Propel, so you have to compare Option to Propel, not Option to Gatorade. If you compare Option to Propel, they are pretty much identical. And if you compare Option to POWERade, Option has 85 percent fewer calories that POWERADE! But Coca-Cola wanted to try to sell this as a sports drink, not a fitness water. So the question now becomes, can they legally sell at as a lower calorie sports drink instead of a fitness water?
The lawsuit, according to John Schmeltzer of the Chicago Tribune, is unusual in the advertising world because disputes are normally settled before the National Adversiting Division ("NAD") of the Better Business Bureau, which assesses the truthfulness and accuracy of competing advertising (Schmeltzer, "Sports Drink Spat Lands in Court," Chi. Trib., 3/21/2006). PepsiCo tried the NAD last fall:
That's where Gatorade turned last fall when Coke launched an ad campaign claiming Powerade Option had 80 percent fewer calories without disclosing there were significant differences between the two drinks.
The NAD decided that Coke could not run the calorie commercial without disclosing "that consumers will not receive the energy replacement benefits provided by Gatorade."
Coke agreed "to take the NAD's recommendation into account in future advertising."
But Coca-Cola hasn't done anything about this ad campaign. It will be interesting to monitor this lawsuit, which is considered similar to one filed two years ago by potato chip-maker Jay's Foods against Frito-Lay and its ads comparing the two chips (those parties settled before trial, and I bet the same thing happens in this lawsuit between PepsiCo and Coca-Cola).
Posted By : Michael McCann
More Fallout from Bronsongate: The "Idiot" Checks in
Message posted on : 2006-03-21 - 15:00:00
Yesterday we discussed how the Red Sox, by trading Bronson Arroyo for Wily Mo Pena, may have broken a verbal no-trade promise to Arroyo after he--against the wishes of his agent--agreed to a below-market contract two months ago. Although the verbal promise (if there was indeed one) is not legally enforceable, one might wonder how this story will affect the trust placed by Red Sox players in team officials. But was there, in fact, a promise?
Well, Red Sox fans are certainly expressing their dismay as to how Arroyo was treated by Red Sox management. Take a look above at an unscientific poll on the Boston Globe's website: over 60% of fans believe "what the Sox did was wrong."
Earlier today, a clearly distraught/peturbed Arroyo conducted a Q/A with Gordon Edes of the Boston Globe:
What was it about Boston and the team that made you want to sign that contract?
“Just, you know, going to Fenway Park 81 times a year, man. There's an excitement in that place I'm not going to get anywhere in the National League except maybe Wrigley. So that was the No. 1 thing. And then, just the group of guys we've had that a lot of 'em still here, pitching to Varitek. I felt like Boston was my second home and I hadn't felt that way about any other place I've ever played. So, you know, stuff kind of being uprooted. You feel like you're being ripped out of your home."
How did you find out you had been traded?
�Theo [Epstein] called me, as soon as I saw his name come up on my [cell phone] I figured he traded me. Yeah, definitely surprising. I always knew it was a possibility just because I'm a young guy who's got a pretty low salary, but I still didn't think he'd trade me, either.�
You said they made no guarantees that they wouldn't trade you, but what was the conversation?
“The conversation almost exact was ‘I'm not signing this deal to end up in Tampa Bay in two weeks.' And they said to me, ‘There's no deal for you on the table right now and we don't foresee trading you in the near future.' Those were the exact words. Near future is relevant to whatever you think. Obviously, there was no guarantee. But in my mind, this is pretty soon. But um, you know, they told me there was no guarantee, and I knew that. But I figured it would probably be further down the road if that happened, pitching bad around the All-Star break or whatever . . . I was surprised when Theo called me, I was really shocked."
Is there a part of you that wants to say, “how could you?�
“Uh, yeah, a little bit. Of course, man.�
Have you talked to Red manager Jerry Narron or GM Wayne Krivsky?
“No I talked to three other people. I don't even know who they were. I couldn't listen, you know, my brain was scrambled yesterday after Theo told me that. I talked to a few other people, some of the clubhouse guys. That was it.�
How long will it take for the trade to sink in?
“Probably when I turn on
the TV and see the Red Sox playing, you know, and I'll be playing someplace else. You know, it's tough, man, but what are you going to do. All you can do is go pitch. I got three years until I'm a free agent so I'm going to pitch and see where you end up.�
So, in other words, there was no promise, explicit or implicit. Nevertheless, former Red Sox outfielder Johnny Damon (the self-described "idiot" who signed with the New York Yankees this off-season), believes the Sox have wronged Arroyo:
"I'm really upset for Bronson. He should be able to become a free agent after this year, re-do his contract. This is what they were afraid of - his agent was right."
While criticizing Red Sox management for lack of loyalty, Damon cited his own failed negotiations with the team. Incredulously, he also alleges that, in 2004, he bought a house in Boston that the 4-year, $32 million he signed with the Red Sox in 2001 couldn't support:
"I bought a house that I could not afford at the time, in Boston because they said, `We're going to keep you, we'll get something done real soon.' This was right after we won the World Series [in 2004]. Obviously, that never happened. After they didn't come to me during the [2005] season, my loyalty to them wasn't there anymore either. I felt the loyalty from them was gone."
Lastly, Damon criticizes the Red Sox for their use of computers and technology in making personnel decisions:
"They have their plans, and they have their computers, and they believe that's right. Unfortunately, computers don't judge a person's heart. Getting along with the younger kids and helping them along, unfortunately, computers don't [evaluate] that."
Clearly, somebody needs to introduce Johnny Damon to the writings of Ray Kurzweil.
Posted By : Michael McCann
I Don't Want to Play Left Field
Message posted on : 2006-03-21 - 13:12:00
Great story last night about how Alfonso Soriano of the Washington Nationals refused to play left field in an exhibition game. Check out the story on espn.com here.
Soriano, a second baseman, was traded in the off-season from the Texas Rangers to the Nationals for OF Brad Wilkerson and two other players. One problem - the Nationals already have an all-star second baseman in Jose Vidro.
No problem, Washington thought, we'll just move Soriano to the outfield.
Another problem - Soriano doesn't want to play the outfield and said so from the get-go.
Well, Soriano returned to the Nationals yesterday (he had been playing with the DR in the WBC). Manager Frank Robinson had Soriano batting leadoff and playing left field. However, with the game about to start, left field was vacant. That's right - Vacant! Soriano just decided not to take the field at all. Eventually, Robinson came out and made a switch, but fans and players were very confused.
I do have to admire Soriano for sticking to his principles. He said he was not going to play outfield, and he obviously didn't change his mind. However, you would think the situation could have been handled a little more maturely.
In my opinion, though, the real people at fault here are the Nationals' management. You would think that a team would find out if an all-star was willing to make a position switch before they traded for him. Now, they are probably going to have to trade for him for 30 cents on the dollar.
Washington GM Jim Bowden says that the refusal to take the field was a violation of Soriano's contract (he's probably right), and is threatening to report him to the commissioner for placement on the disqualified list (which would, in effect, suspend his service time). However, that doesn't change the fact that the guy made a stupid trade without doing all the necessary research.
Posted By : Joe Rosen
The Downside of Gender Equality
Message posted on : 2006-03-21 - 00:54:00
The Sixth Circuit heard arguments last week in a case from Michigan, where the plaintiffs are arguing that the Michigan High School Athletic Association violates federal antidiscrimination statutes, namely Title IX, by scheduling female sports in different seasons from male sports. (Story) The harm claimed is that playing in off seasons affects girls chances to get athletic scholarships. Back in 2001, the federal district court held for the plaintiffs and the case has been in appeal ever since. The latest argument, on remand from the Supreme Court, is on a procedural point that is not likely to end the case.
The question I have, however, is not related to whether the practice is discriminatory. Even if it is (under a strict reading of Title IX), do female athletes suffer more by having to play at the same time of their male counterparts? Last month, the Washington Post featured an interesting article on just this topic. (Watts, "Title IX Ruling Makes Girls' Sports a Tough Draw," Wash. Post, 02/21/06).
In 2000, a federal district court in Virginia faced the identical question and came to the same conclusion, ordering that female teams play in the same season as male teams. The result, however, has not been all positive. Now that they are competing with boys teams, many girls teams have experienced a sharp drop-off in attendance since the schedule change. By tip-off of the Feb. 3 [girls] game, fewer than a hundred fans filled the Loudoun County bleachers. And aside from both teams' junior varsity players, fewer than 20 people in the gym appeared to be of high-school age.
But just 2.3 miles down the road at Heritage, where the Pride boys were hosting Loudoun County on their Senior Night, nearly 800 fans filled those bleachers, an estimated 70 percent of them students from the two schools.
"I remember my freshman year there were tons of kids at the games and afterward they'd all be on the court celebrating with us or whatever," said Broad Run senior Whitney Vlasic, a four-year varsity basketball player. "Now it's all parents in the stands."
There are also problems with locker rooms and practice times, especially for schools that have just one court. Teams must practice very early before school or very late after school; many games are now played at odd times, or even at other schools' gyms, to accommodate all of the teams.
So, does this help girls athletics more than it hurts it? I haven't seen the data on athletic scholarships (or other potential harms), but I find it hard to believe it is that great. After all, college teams want the best athletes, no matter when they play. And, considering the fact that the overwhelming majority (at least 99 percent) of high school athletes don't receive athletic scholarships, is the burden so widespread to make it a problem? On the other hand, if girls basketball was played in a different season than boys, both squads could share top-notch gyms, practice facilities and gyms. Students could come support both teams, rather than being forced to pick one over another. In other words, there would be little discrepancy between male and female teams. Isn't that what Title IX is all about?
Posted By : Greg
Season on the Brink
Message posted on : 2006-03-21 - 00:38:00
In a stunning development, Joe Rosen and my essay in the Case Western Law Review on age limits in the NBA and NFL is the #1 ranked article on SSRN for labor law in March and we are also #1 in employment law. Looking at the other names on those lists . . . and with all due respect to Joe . . . this kind of reminds me of when the Kansas City Royals got off to that hot start a few years ago, or possibly the first half of the Baltimore Orioles' 2005 season, or maybe the New England Patriots taking a 3-0 lead on the Chicago Bears in Super Bowl XXX. So let's enjoy it while it lasts! (and our thanks to those who have downloaded the article).
Posted By : Michael McCann
Broken Promise? Red Sox Trade Bronson Arroyo
Message posted on : 2006-03-20 - 12:49:00
On January 19, 2006, 29-year old pitcher Bronson Arroyo took a "hometown discount" by agreeing to a three-year, $11.2 million contract with the Boston Red Sox and avoiding arbitration with the team. He did so against the wishes of his agent, Gregg Clifton, who felt that his client left over $4 million on the table.
"I signed the deal at a pretty good discount . . . Fenway Park is a joy to come to every single day. I love playing here. I love the fans. I love the city. I want to stay here for my whole career, I feel that's going to beneficial for me as well as the team. Hopefully, they see it that way and don't trade me. [Then co-general managers] Jed [Hoyer] and Ben [Cherington] both stated to me that there was no deal on the table for me right now, and they felt pretty strongly that I wouldn't be traded any time anywhere in the near future. They couldn't guarantee me security for the lifetime of the contract."
Today--a mere two months and a day from when Arroyo signed the contract--the Red Sox traded Arroyo to the Cincinnati Reds for outfielder Wily Mo Pena. Perhaps unwittingly, by agreeing to a below-market contract, Arroyo likely aided the Red Sox in dealing him to a smaller-market team like the Reds. Nevertheless, Arroyo might be understandably annoyed at Hoyer and Cherrington if they indeed intimated that, in exchange for signing a below-market deal, he likely wouldn't be traded in the near future. Then again, Theo Epstein is now calling the shots again, so perhaps an oral promise by Hoyer and Cherrington was conditional upon them remaining in charge. In any event, expect Red Sox players to think very carefully about oral promises by Red Sox management from here on out. The same might be said of free agents when considering whether to sign with the Sox.
Posted By : Michael McCann
One-Time Transfer Exception
Message posted on : 2006-03-20 - 12:14:00
NCAA By-law 14.5.5.2.10 is known as the One-Time Transfer Exception. This by-law permits a student-athlete at a four-year college or university to transfer to another four-year college or university without being required to sit out a year in his or her sport.
There are certain requirements for this exception to apply. Specifically, the exception can only be used once for an athlete, the athlete must be in good academic standing and meet certain progress towards degree requirements, and the institution from which the athlete is transferring must state in writing that it has no objection to the waiver (often referred to as a "release").
In addition, the student-athlete may not be a participant in basketball (men's or women's), men's ice hockey or Division I-A football at the institution to which the student-athlete is transferring. In other words, the exception does not apply for football, basketball and men's hockey players. These student-athletes are generally required to sit out a year. The reason for this is that participants in these sports traditionally do not do as well academically as other student-athletes, as measured by graduation rates. There have been recent proposals to extend the transfer exception to these sports, but they always seem to get shot down.
Another proposal has been brought up recently to eliminate the exception for baseball student-athletes. This proposal has evidently been through the management council twice, being opposed both times, but will be looked at again in April. I spoke to an NCAA representative today, who believes the chance of this proposal passing is unlikely. The proposal keeps popping up, though, because there is a higher transfer rate in baseball than in most other sports, and many in the baseball community believe the ease of movement in baseball contributes to a lack of academic success.
I am interested to hear (1) whether anyone has heard anything else about the exception being eliminated for baseball, and (2) whether people believe it should be eliminated in baseball, or other sports for that matter.
If the baseball proposal goes into effect, the effective date would not likely be until at least August 1, 2006, so I would expect an increased amount of transfers this summer (assuming that the athletes can get their coaches to give them their releases).
Posted By : Joe Rosen
The NFL's "Poison Pill"
Message posted on : 2006-03-20 - 09:56:00
Many lawyers are familiar with a "poison pill" in corporate law, which are defensive measures intended to prevent hostile takeovers through stock acquisition. (More) Now, the NFL has its own measure of the poison pill and an arbiter will decide on Monday how integral it is to a player contract. (Story). Steve Hutchinson of the Seattle Seahawks, widely considered to be one of the best guards in the league, signed a 7-year $49 million dollar contract with the Minnesota Vikings last weekend. The Seahawks have the right to match the deal, and want to do so, but the Vikings have included a "poison pill" clause. [The clause] stipulates that Hutchinson must be the highest paid offensive lineman on his team after the first year of the contract and that, if he isn't, the entire contract becomes guaranteed. The provision is a difficult one for the Seahawks, who have the right to match the Minnesota offer, because offensive tackle Walter Jones is the team's highest paid lineman and would be even if Hutchinson were on the Seattle roster.
Less than 2 percent of NFL contracts are fully guaranteed and those are usually limited to quarterbacks or other players at skill positions. Having to guarantee Hutchinson's contract would break new ground.
The Vikings clearly took a risk with Hutchinson's contract, but did so because they knew that Seattle would not be able to match the offer without making an enormous financial sacrifice. Now, the Seahawks are asking the arbiter to declare that the pill is not a principal term of the deal, and thus, they should be able to match the financial terms of the contract without adopting the pill.
My guess is that this is not a winning argument, but it will be interesting to see how the arbiter (Professor Stephen Burbank) views it. Is the clause solely a defensive measure, and thus, something for which Hutchinson has given no consideration? Or is it part of his compensation package? He does not stand to make more money; the clause is more likely to prevent action on the part of the Vikings. But having his contract be guaranteed would be a huge gain.
UPDATE (3/21): Seahawks lose; Hutchinson is now a Viking.
Posted By : Greg
Book Review: Fantasyland by Sam Walker
Message posted on : 2006-03-19 - 12:14:00
As a devoted player of fantasy sports, I was excited to pick up a copy of Fantasyland by the Wall Street Journal's Sam Walker. I finally got around to reading it and the book did not disappoint. In 2004, Walker did what millions of fantasy players can only dream of -- he made managing a fantasy baseball team his full-time job. And he did so with a team in Tout Wars, the private Rotisserie League played by the experts of fantasy baseball. Spending over $50,000, which included travel to watch games and hiring two employees, and exhausting the patience of both his wife and dog, Walker lives and breathes fantasy baseball for the entire season.
Whether you are a baseball aficionado, the manager of three fantasy teams, or just a fan of sports in general, it is impossible not to get sucked into Walker's description of his quest. I laughed at his rookie mistakes, including a costly mistake at the draft and knee-jerk trades, comparing them to similar blunders I have made throughout my fantasy "career." It is hard to put this book down, as Walker weaves stories about his team in with meaningful insights about the battle being waged in baseball between old-school "purists," that rely on gut reactions and insider knowledge, and the new generation of economics-driven baseball executives, for whom statistics and hard data are the only way to objectively evaluate performance. Walker even personifies these two camps through his employees: Sig, the master of Excel spreadsheets and Zoladex, a program he creates to determine optimum player value, and Nando, whose Hunchmaster system combines accepted metrics such as scouts' opinions with unconventional data ranging from a player's marital status to religion and arrest records. Walker is careful not to pick one side over the other; he balances the power of numbers with his own feel for the intangibles in making the final decisions on player selection and trades.
Despite the undercurrent of the baseball debate, the book's central message is the impact of fantasy sports on the real sports around which they revolve. Walker's job as a baseball writer gives him unique access to players and executives. As he interviews these baseball insiders and admits to them the purpose of his questions (i.e., helping his Rotisserie team), some scoff and castigate Walker for elevating a parlor game over their livelihood. Others, however, embrace the "fake" game that have heightened the interest of so many fans in the "real" game.
These players and executives seem to understand that in a world of ever-increasing entertainment options, anything that keeps fans interested is good for the game. Walker's devotion to his team -- staying up until 1 am to watch a Blue Jays-Devil Rays game, making repeated trips to the ballpark to see his players in action, and keeping a constant vigil at news and statistics websites -- is not uncommon in the fantasy sports world. Walker sums it up best when describing a slump by his "team": "I haven't cared this much about sports -- or been this despondent about a setback -- since the fourth grade, when Michigan blew the 1979 Rose Bowl. (I locked myself in the bathroom.)" This is the same logic that leads the NCAA to look the other way, if not downright encourage, participation in bracket pools during March Madness. Anything, even if not "real," that keeps people as interested in sports as they were when they were young and had no other worry in the world, is undeniably great for the game.
In the end, Walker learns what many fantasy players already know: that it is often luck as much as skill that determines the ultimate winner of a fantasy-sports league. This makes fantasy sports much like the real-life counterparts on which they are based, and it serves as a reminder that winning or losing, while perhaps the goal, is not the only barometer of a successful season. After all, as with all sports, it's often not the outcome
that matters, but rather how much fun you have playing the game.
Posted By : Greg
The Shark Threatens
Message posted on : 2006-03-16 - 11:18:00
Golf World reported this week that Greg Norman has retained attorney Leonard Decof to assist him in a lawsuit against the PGA Tour. Norman, a PGA Tour member, wants to review the PGA Tours financial records. The PGA Tour will not release the information, although they are willing to meet and discuss the issue with Norman.
The dispute stems from Norman's interest in forming a Major Champions Tour for senior Major winners. An executive with Fox Television is involved in the effort to form the new Tour. Norman, who recently turned 50, has been vague about committing to the existing Senior PGA Tour.
The brewing legal dispute concerns whether Norman, as a PGA Tour member, is entitled to access to the financial records of the PGA Tour. He is not the first to ask. He first asked privately, then publicly and has recently retained Decof. Decof is a "longtime nemesis" of the PGA Tour, having represented Ping and other manufacturers against the PGA Tour in antritrust litigation regarding square groove technology on irons. He also represented Callaway in the dispute over the legality of its ERC driver.
The interesting personal subtext of the dispute stems from Norman's attempt in the 1990s to start a World Golf Tour, an effort that PGA Tour Commissioner Tim Finchem snuffed. Norman has described the experience as his worst experience in golf and clearly holds Finchem responsible for vilifying Norman as a person trying to hurt the game. With this much bad blood, it will be interesting to see how the dispute develops.
Posted By : Chris Callanan
Rocky Week for Football Agents
Message posted on : 2006-03-16 - 10:49:00
Its been a rocky week for NFLPA Certified Contract Advisors. Although some are busily signing clients and generating fees, others are fighting for their personal and professional lives. Yesterday, news reports covered the story of Dante DiTrapano, an agent for Randy Moss who was arrested and charged with possession of crack cocaine.
On March 1, United States District Court Judge Ronald Lew allowed the Players' Association's Motion for Summary Judgment in its Declaratory Judgment action filed against David Dunn. The Court found that as a matter of law, Dunn and the NFLPA had formed an executory contract. His application for certification was an offer, his certification was the acceptance and the consideration supporting the contract is his being allowed to serve as a Contract Advisor "representing the NFLPA on its behalf in salary negotiations" between clubs and players. The Court rejected Dunn's argument that he was licensed to pursue a profession. The Court left it up to the Bankruptcy Court to lift or decline to lift its stay as it is a discretionary matter for the Bankruptcy Court. Judge Lew's Order is available on the Federal Court PACER system.
Judge Lew's decision makes clear that as a party to an executory contract, the NFLPA is entitled to discipline Dunn. Most commentators expect the Bankruptcy Court to lift its stay given Judge Lew's clear finding in favor of the NFLPA, which would then allow the NFLPA to sanction Dunn as it has intended since the verdict in the Steinberg lawsuit.
The NFLPA's Committee on Agent Regulation and Discipline has suspended Carl Poston for two years stemming from a grievance filed by LaVar Arrington. Arrington orally agreed to a $6.5 million bonus as party of his $68 million agreement with the Redskins, but the bonus was not documented in the written agreement. The Redskins dispute the claim entirely and Poston's agent threatens to "vigorously contest this using all appropriate remedies."
Posted By : Chris Callanan
Future of Sports Law Symposium at Willamette University College of Law
Message posted on : 2006-03-16 - 06:52:00
I am pleased to be a part of a symposium tomorrow at Willamette University College of Law in Salem, Oregon. The symposium is being hosted by the Willamette Law Review and the topic is the future of sports law. Here is the syompsium abstract:
Willamette Law Review has assembled an exciting and distinguished group of speakers who bring both academic and practical expertise to their discussion of the future of sports law. Topics addressed will include the regulation of sports agents, player compensation, basketball as a role player in sustainable peacebuilding, franchise value, regulating franchise relocations, international issues in sports law, and betting on games by participants.
Willamette Law Review also will publish an edition of its academic journal dedicated to The Future of Sports Law.
Here is the speakers' list and topic schedule:
9:15 a.m. Player Compensation
- Michael McCann, Assistant Professor of Law, Mississippi College School of Law ("Social Psychology, Calamities, and Sports Law") (a discussion on the behavioral effects of catastrophic weather, natural disasters, terrorism, and communicable disease on professional sports actors and how the law can be used as a mollifying force--a cheerful topic indeed).
10:45 a.m. International Issues in Sports Law
- Maureen Weston, Associate Professor of Law, Pepperdine University School of Law ("Foreign Student-Athletes in U.S. College Sports: Recruitment, Eligibility, and Title IX Implications")
- James Nafziger, Thomas B. Stoel Professor of Law, Willamette University College of Law ("The Future of International Sports Law")
12:00 p.m. Lunch
1:30 p.m. Franchise Value
- Gordon Hylton, Professor of Law, Marquette University Law School ("What Happened to Congress's Attempt to Regulate Franchise Relocations in the 1990's?")
- Jack Williams, Professor of Law, Georgia State University College of Law ("The Coming Revenue Revolution in Sports: Mining Revenue from Non-Traditional Sources")
3:00 p.m. Regulation of
Sports Agents
- Timothy Davis, John W. & Ruth H. Turnage Professor of Law, Wake Forest University School of Law ("Regulations Governing the Athlete Agent Industry: Intended and Unintended Consequences")
- Rick Karcher, Florida Coastal School of Law ("Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representative of the Players") (for more on Rick's presentation, check out his post "Players Unions Need to Fix the Agent Business," 2/2/2006)
4:15 p.m. Closing Remarks
It should be a great event, and my thanks to Jeffrey Standen and the staff of the Willamette Law Review for their invitation to partake in it. I also thank Greg Rios, the syompsium editor of the Willamette Law Review, for all of his hard work in making this happen.
Posted By : Michael McCann
Harlem Ambassadors Respond to Blog Debate
Message posted on : 2006-03-15 - 15:26:00
Last week, Professor Josh Wright (George Mason University School of Law & Truth on the Market) and I had a lively discussion on the Harlem Ambassadors' FTC complaint concerning the Harlem Globetrotters' arguably anti-competitive use of exclusivity windows, or "use of arena" clauses (Truth on the Market, 3/6/2006; 3/6/2006 (b), Sports Law Blog, 3/6/2006). In essence, Wright argued that there may be sufficient based on the competition for the clauses, while I argued that there doesn't appear to be real competition because the Globetrotters seem to be a monopoly.
Dale Moss, the founder, president, and general manager of the Harlem Ambassadors, e-mailed us with some follow-up comments and important clarifications. With Moss' permission, here is his e-mail:
It has been interesting to read the discussions [on the two blogs] concerning our complaint to the FTC's Bureau of Competition. However, these discussions seem to drift away from the central points of the complaint which deals with the practical realities of how the business practices of Harlem Globetrotters International (HGI) constrain our company, Harlem Ambassadors, Inc. within the interstate marketplace.
The complaint is over 20 pages and includes the history of "Harlem-style" sports entertainment (it doesn't begin and end with the Globetrotters as many might believe), the background of the Harlem Ambassadors (we do over 220 events annually in 46 states), and published accounts of HGI's long history of blocking competition.
The key points made in the Complaint are:
1.) HGI unreasonably restrains the business activities of the Harlem Ambassadors through the implementation of a specific "Use of Arena" restriction contained in a standard lease addendum applied to all of HGI's arena lease and/or co-promotion contracts.
2.) This "Use of Arena" restriction blocks the Harlem Ambassadors out of the affected arenas for a period of eight weeks prior and six weeks following the HGI event.
3.) In these situations, based upon HGI's own pre-event marketing patterns, this 14 week black out period is excessive.
4.) In total, the Harlem Ambassadors are blocked from over 20,000 potential performance nights in these arenas, even though the Globetrotters are only performing on about 210 of these nights.
5.) These restrictions impact over 200 arenas over a 46 state area (in 2003-2004 HGI season, the period used for the examples in the complaint).
6.) Virtually all of the facilities impacted are publicly-owned arenas, auditoriums, gymnasiums, and convention centers. These are facilities that have been built and are operated with municipal, county, and state funding.
7.) The "Use of Arena" restriction also limits the access to these major public arenas by the featured women performers of the Harlem Ambassadors. HGI employs no women performers and hasn't in over 13 years.
While Chris Isidore of CNN/Money did a good job of summarizing our issues, his statement that the restriction keeps us "from playing in the same venue around the same time the Globetrotters are scheduled to" doesn't accurately represent what is actually a 3
1/2 month period.
We appreciate the interest and discussion concerning our Complaint and would welcome any questions.
Very truly yours,
Dale Moss
President/General Manager
Harlem Ambassadors, Inc.
I found this comment especially interesting: "the Harlem Ambassadors are blocked from over 20,000 potential performance nights in these arenas, even though the Globetrotters are only performing on about 210 of these nights."
We'll see what the FTC does, but if accurate, the Ambassadors' argument appears promising, particularly if they can show that the 3 1/2 month window is unreasonable.
Posted By : Michael McCann
Appropriate or Punitive? NCAA Sanctions Ohio State, Jim O'Brien, and Paul Biancardi
Message posted on : 2006-03-15 - 06:10:00
Last month, we discussed former Ohio State men's basketball coach Jim O'Brien's successful lawsuit against Ohio State for breach of an employment contract ("Jim O'Brien v. Ohio State University: Materiality, Honesty & Breach of Contract," Feb. 17, 2006). O'Brien proved that Ohio State had breached his employment contract in 2004 by wrongfully firing him upon learning of his past NCAA recruiting violations. The facts began in 1998, when O'Brien gave (or, in his words, "loaned") $6,000 to Alex Radojevic, a 21-year old, 7'3 center from Serbia and Montenegro, in order to help pay for Radojevic's father's funeral.
Elia Powers of Inside Higher Ed now writes about the NCAA's decision to place Ohio State University on three years' probation for major wrongdoing in its men's basketball program. The University must repay nearly $800,000 in championship revenue and its team records from the 1999-2002 NCAA tournaments are erased. (Powers, "Black Eye for the Buckeyes," Inside Higher Ed, Mar. 13, 2006).
More controversially, the sanctions also require O'Brien to appear before the NCAA's Division I Committee on Infractions if he seeks a job at an NCAA college in the next five years, and that any college that hires him must go before the NCAA to prove that it will control O'Brien's recruiting tactics (also known as a "show cause" penalty). The NCAA also threatened penalties against Wright State University if it didn't bar its head coach as of two days ago, former Ohio State assistant coach Paul Biancardi, from recruiting players over the next 18 months. Given the impossibility of that requirement, however, Biancardi stepped down from Wright State on Tuesday.
Has the NCAA gone too far in penalizing O'Brien by imposing a "show cause" penalty--will any Division I school hire him now? And what about the Biancardi penalty--it put his then-current employer, Wright State, in a no-win situation, even though the school had nothing to do with Biancardi's transgressions at Ohio State (which included making payments to Boban Savovic, a player later deemed ineligible, and serving as a liaison between Savovic and a sports booster who gave the player free housing and helped him commit academic fraud). Biancardi was essentially forced to resign as a result of the penalty, and now Wright State has to scramble to find a new head coach.
Powers interviews several people for this story, including Duke Law Professor Paul Haagen, Boston attorney Kevin Cuddy, and me:
The panel imposed a five-year “show cause� penalty on O'Brien that would require any institution seeking to hire him to come before the NCAA to discuss how the coach's duties should be
limited. Mandates like that tend to put a major dent in a coach's employment prospects, said Paul Haagen, a professor of law at Duke University.
Kevin Cuddy, a lawyer at the Boston-based law firm Ropes & Gray, which represents college coaches, said “show cause� penalties are reserved for the most egregious cases. He said he was surprised, given the language in the committee's infractions report, that Biancardi didn't receive a harsher penalty.
In punishing O'Brien and Biancardi, the NCAA also sent a strong message to colleges considering hiring a coach who has violated rules, said Michael McCann, an assistant professor of law at Mississippi College School of Law and contributor to Sports Law Blog. “The message here is when hiring someone, do an extensive background check and look out for any possible transgressions,� McCann said. “It encourages schools to do due diligence.�
Other than unintentionally sounding a little bit like former President Bush, or at least Dana Carvey's impersonation of him ("message here"), my point was that requiring O'Brien and Biancardi to carry their penalties sends an obvious deterrent to coaches who contemplate breaking recruiting rules, and it also encourages colleges to fully-investigate potential hires (which sends another deterrent to coaches on the brink of wrongdoing). On the other hand, and as Paul Haagen notes, the "show cause" penalty might be considered overly-punitive, since it can effectively force someone out of coaching for as long as the penalty remains in effect--colleges would probably rather hire someone else than going before the NCAA to show how it will control their new coach. For that reason, a "show cause" penalty of 5 years is almost like a 5-year suspension from Division I coaching--a harsh and stigmatizing penalty indeed.
Posted By : Michael McCann
Congress Investigating Possible NCAA Misuse of Tax Exempt Status
Message posted on : 2006-03-14 - 11:54:00
Mark Alesia of the Indianapolis Star reports that the U.S. House and Ways Committee has begun a quiet investigation into whether the NCAA, conferences, and school athletic departments have misused their tax exempt status as non-profit entities (Alesia, "NCAA's Tax Exemption Called into Question," Indianapolis Star, Mar. 11, 2006). The NCAA qualifies for the non-profit exemption because it claims to be "organized and operated exclusively for educational purposes." Although the NCAA denies that it has been contacted by anyone from the Ways and Means Committee, a staff member of the Committee recently interviewed former University of Michigan president James Duderstadt about possible misuse of the tax-exempt status by the NCAA and others.
Brad Wolverton of the Chronicle of Higher Education reports that two other "college officials" have been interviewed by the Committee (Wolverton, "House Committee is Looking Into Whether Some College Sports Revenue Should be Taxed, Three College Officials Say," Chronicle of Higher Education, Mar. 10, 2006). Wolverton also summarizes the legal question:
Aides to the committee asked questions about whether certain revenue generated by college-sports programs and the National Collegiate Athletic Association should be treated as "unrelated business income" and taxed. According to the college officials interviewed by the committee's aides, lawmakers are concerned that big-time sports programs are evolving into commercial entertainment businesses that are only marginally connected to the tax-exempt purposes of higher education.
Interestingly, Duderstadt told the Committee that the NCAA, conferences, and school athletic departments no longer represent nonprofit, educational missions: "In reality, they have less and less connection to that. Coaches have compensation in the millions and (athletic directors) are moving up into the stratosphere."
Duderstadt's remarks appear quite true. Just consider the earnings of Duke mens' basketball coach Mike Krzyzewski. He has a lifetime contract with Duke University that pays $800,000 per year, but with other allowances and benefits, earns about $1.5 million per year from the University. He earns another $1.5 million per year from his endorsement contract with Nike. Although he is among the highest-grossing collegiate coaches, many other coaches also do quite well.
And the NCAA's tax-exempt status has drawn critique for some time. Back in 1998, Professor Daryl Wilson wrote, "The NCAA presently maintains a tax exempt status, although its organizational structure and operation is purely corporate. Eighty-two percent of the NCAA's $ 220 million dollar plus budget is derived from television revenues. The televised sports are traditionally big-time athletic events involving big-name schools. Has anyone ever seen any televised event featuring the smaller schools mentioned in this article?" (Daryl C. Wilson, "Title IX's Collegiate Sports Application Raises Serious Questions Regarding the Role of the NCAA," 31 John Marshall Law Review 1303, n. 94 (1998)).
More recently, Erin Guruli writes,
A number of sports and tax commentators have questioned the role of the NCAA with respect to its stated purpose, which
is to further amateur sports and to support the educational function of colleges and universities. Specifically, questions have surfaced because, although the NCAA has enjoyed tax exemption based on its nonprofit status and college athletics being an integral part of education, "it has its own marketing and licensing arm, an annual budget of more than $ 270 million, and an executive pay scale that rivals that of any other large business."
Other specific activities undertaken by the NCAA have raised concerns as well. The NCAA has entered into an eleven-year contract with CBS to broadcast the "March Madness" basketball games, which has added to the controversy inherent in the commerciality of collegiate sports. Throughout the term of the contract, the NCAA will be paid $ 6 billion, equaling approximately $ 545 million per year, which is subsequently paid out to the NCAA member schools. Commentators have, again, pointed out that "when it comes to money, there is nothing amateur about the NCAA basketball championship" primarily because of "how much loot is hanging on college hoops" during March Madness. Consequently, the IRS should intervene to determine the actual purpose of the NCAA, and to evaluate the true extent to which certain activities engaged in to promote collegiate athletics contribute to the educational purpose of colleges and universities.
If Congress threatens to tax the NCAA, the NCAA might ultimately be persuaded to implement reforms that will be effective, such as "prohibiting schools from putting players in hotels for home games, saving millions of dollars a year" and reducing football rosters from over eighty-five scholarships to fifty-five players or less, which is comparable to professional football rosters. (Erin Guruli, "Commerciality of Collegiate Sports: Should the IRS Intercept?," 12 Sports Lawyer Journal 43, 58 (2005).
How about some good arguments in favor of the NCAA's tax-exempt status? Give'em your best shot in the comments section.
Posted By : Michael McCann
The Return of the "Tennis Parent" With A New Twist on "Anti"-Doping
Message posted on : 2006-03-13 - 09:11:00
Meet Christophe Fauvia. Part Jim Pierce, part "Cheerleading Mom" and part Tonya Harding. Last week, a French Court sentenced Fauvia to eight years in prison for drugging (and inadvertently killing) his son's junior tennis opponent. The opponent later crashed his car and died as a result. Maxime Fauvia beat Alexandre Legardarere in a "minor league" (no one told Christophe) match. Afterward, Legardarere, a 25 year-old high school teacher, complained of fatigue and slept for two hours. He then drove home. On the way, he fell asleep again, crashed, and died. Blood tests detected the anti-anxiety drug Temesta in Legardarere's blood.
Christophe's activity came to light when another opponent of Maxime's saw the elder Fauvia tampering with his water bottle. Authorities later tested the bottle and found Temesta. Fauvia faced up to twenty years in prison, charged with unintentionally causing death by administering toxic substances. At trial, he admitted that from 2000-2003, he routinely spiked his children's opponents' water with Temesta. The effects on opponents reportedly varied from dizziness and weak-knees to fainting. Fauvia took Temesta to calm his own nerves while watching his children compete.
Fauvia's family offered an interesting range of reactions. Valentine Fauviau, 16 and a rising star in French junior tennis seemed in denial: "Tired girls, yes, I saw them. But nothing more than that. I never needed anyone to help me win." Son Maxime, a little closer to the mark, added "He blew a gasket and didn't calculate all the consequences. He's too involved in tennis." Fauviau's wife, Catherine, claimed ignorance: "If I had [known], it would have been suitcases or the psychiatrist."
As her husband packs his suitcase for (a far too short eight years in ) prison, let's hope someone finds him a psychiatrist.
Posted By : Chris Callanan
Innocent Error or Tampering Cover-Up? David Givens and clevelandbrowns.com
Message posted on : 2006-03-11 - 16:11:00
At 12:01 AM this morning, the NFL free agency period began, meaning a number of players could begin to negotiate with other teams. Up until that point, however, prospective free agents and their representatives could not speak with any team other than their existing employer. If a team broke that rule, it would be subject to tampering violations, which typically entail forfeiture of draft picks.
At 12:21 AM this morning, the Cleveland Browns' website announced that the team had signed free agent wide receiver David Givens, who has been with the New England Patriots over the past four seasons (see screen shot to left). The 361-word statement was well-written but curiously dated "March 30, 2006" and strangely entitled "GIvens." Within hours, however, the link and screenshot were removed. Rotoworld and the Boston Globe then reported denials by Givens' agent, Brad Blank, that his client had already reached a contract, and, in fact, Givens has visits scheduled with a number of NFL teams, including one with the Miami Dolphins today (Givens is considered one of the better free agent wide receivers).
It certainly appears that no contract has been reached, or Givens will be wasting his time and that of numerous personnel from various NFL teams in the coming days. So why would the official Browns website announce his signing? The Browns have not issued a clarification, but Blank apparently theorized that someone may have hacked into the Browns' computer system--a theory perhaps bolstered by the erroneous date of the entry (March 30, 2006) and its odd title ("GIvens"). I suspect another possible reason is that a Browns' press assistant was simply misinformed or confused, and the posting reflected an honest mistake.
But it is strange, and if Givens ultimately signs with the Browns, the Patriots would seem poised to file a tampering complaint with the NFL. The complaint may or may not have merit, but the circumstances would warrant at least clarification as to why the 12:21 AM posting occurred.
Note: the screenshot above was taken by someone at Pro Football Talk, a must-read for football fans.
Posted By : Michael McCann
Will Red Bull Give Corporate Nicknames Wings?
Message posted on : 2006-03-09 - 11:44:00
The MetroStars of Major League Soccer have been sold to Red Bull Co., Ltd., an Austrian company that makes the well-known energy drink of the same name (ESPN). Red Bull has also bought the naming rights to a proposed soccer stadium in New Jersey, but that is not the big news. What will make headlines is that henceforth, the team will be know as Red Bull New York.
I previously wondered why companies did not try to purchase the naming rights to teams, rather than just stadiums. (11/4/04). Why not the Detroit Cadillacs or the Atlanta Cokes? But an idea like this almost always has to start at a lower level and then work its way up to the big time. If Team Red Bull can work for MLS, it may not be much longer before we see corporate names in the big 4 leagues.
Is this bad for professional sports? Many fans protest the naming of arenas after companies, so you can imagine the uproar over naming an entire team. In my opinion, the idea has some merit, but leagues must take some control over the process to protect its image. A stadium named after a scandal is one thing -- but what fan in Houston would have cheered for the Enrons?. And while it is less problematic for a stadium to change names every few years because of mergers, bankruptcies, etc, no league wants a franchise to have a new nickname every 2 seasons. There is also the problem of cheering for the "Verizons" or the "Colgates" -- can fans really get into teams with names like that?
Red Bull New York presents an interesting test case. The product name is also a mascot name. The market is huge, presenting many possibilities for tie-ins and gimmicks. The league is on the smaller side, increasing the upside and minimizing the risk. If Red Bull New York works, perhaps other teams would have similar success. If it fails, however, team nicknames may be the one place in sports where corporate dollars remain unwelcome.
Posted By : Greg
Kickball: A True Litigation Story
Message posted on : 2006-03-09 - 10:41:00
**Update (May 8, 2007): we have a new blog entry on this topic, WAKA v. DCKickball: A Claim Worth Kicking Aside?**
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From Dave McKenna of the Washington City Paper comes news of a federal lawsuit over kickball (McKenna, "Playground Bully," Washington City Paper, 3/9/2006; see also "The Cold-Blooded World of Competitive Kickball," Deadspin, 3/4/2006).
In WAKA LLC v. DCKickball, the founders of the World Adult Kickball Association ("WAKA") are asking the U.S. District Court for the Eastern District of Virginia to prevent DCKickball (as pictured to left) from organized play this year. This is yet another David v. Goliath story: WAKA allegedly has tens of thousands of members and affiliated divisions, while the upstart DCKickball featured about 400 players in its inaugural season last year.
Without seeing the complaint, WAKA's claims, as described by McKenna
, appear far-fetched: WAKA contends that DCKickball has infringed on its copyright by "unauthorized use" of two of WAKA's co-ed kickball rules. These two rules are the "clearly unique requirement that there be 4 men AND 4 women at a minimum to play" and a 21-year old age floor for play. I'll admit to knowing nothing about adult kickball, as the last time I played the sport was in middle school, but co-ed kickball doesn't strike me as that unique; if I recall correctly, kickball in middle school was co-ed. And more specifically contending that there is something unique about 4 men and 4 women on the field (playground?) also seems like a stretch, unless WAKA can somehow prove that it came up with the idea, that it is clearly distinguishable from past ideas about kickball, and that it is essential to their league.
The suit also contends that DCKickball founder Carter Rabasa defamed WAKA by calling it the "Microsoft of kickball" in stories appearing in the Wall Street Journal and the Washington City Paper. That claim also strikes me as quixotic. For one, defamation lawsuits are extremely difficult to win, particularly when the statement seems more like an opinion than an asserted fact (and this statement appears to be an opinion, as I'm not sure what specific facts would give rise to WAKA being considered the Microsoft of kickball). And second, the statement "your company is the Microsoft of some industry" may not be insulting. Sure, it means that you dominate the market, but it also means that you have been incredibly successful. And if the statement isn't prima facie insulting, then it will be dismissed.
I think the real lesson from this lawsuit, and from the Harlem Globetrotters attempt to squash the upstart Harlem Ambassadors, is that appearing afraid of a smaller actor in a given industry only draws attention to that smaller actor and thus unwittingly tilts the "balance of power" in its direction.
Posted By : Michael McCann
Tagliabue's Finest Hour
Message posted on : 2006-03-09 - 10:01:00
In the wake of another supposedly-controversial Supreme Court case (the Solomon Amendment case) resulting in a unanimous outcome, some commentators are speculating that Chief Justice Roberts' may have a knack for leading and gaining a consensus. (Volokh, Bench Memos) Even if true, the Chief's leadership skills don't hold a candle to those of NFL Commissioner Paul Tagliabue, who did the impossible this week -- getting 30 out of 32 owners to agree to the proposed labor agreement, thereby avoiding a labor disaster in the NFL.
I fully expect that more stories will emerge about the wheeling and dealing done by Tagliabue to convince owners to vote for the deal, even if it was not in their own personal interest to do so (e.g., Daniel Snyder of the Redskins, who will share far more locally-generated revenue than he would like). Tagliabue (and his team) got the players to agree to a deal that they believed could be sold to the owners, and they then did the necessary selling -- highlighting the overall positives of the deal, holding individual meetings with owners and who knows what else.
Is Tagliabue the best commissioner in professional sports? It certainly seems that way right now, as the NFL can maintain its image as the standard by which all leagues are judged.
More on the NFL Labor Deal: John Clayton, ESPN, Washington Post, New York Times
Posted By : Greg
New and Stunning Allegations Against Barry Bonds
Message posted on : 2006-03-07 - 15:10:00
Sports Illustrated has just posted a story on a new book by San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams entitled "Game of Shadows." The book examines, in excruciating detail, alleged steroid use by Barry Bonds:
Beginning in 1998 with injections in his buttocks of Winstrol, a powerful steroid, Barry Bonds took a wide array of performance-enhancing drugs over at least five seasons in a massive doping regimen that grew more sophisticated as the years went on . . .
[W]hen Bonds broke Mark McGwire's single-season home-run record (70) by belting 73, Bonds was using two designer steroids referred to as the Cream and the Clear, as well as insulin, human growth hormone, testosterone decanoate (a fast-acting steroid known as Mexican beans) and trenbolone, a steroid created to improve the muscle quality of cattle . . .
Depending on the substance, Bonds used the drugs in virtually every conceivable form: injecting himself with a syringe or being injected by his trainer, Greg Anderson, swallowing pills, placing drops of liquid under his tongue, and, in the case of BALCO's notorious testosterone-based cream, applying it topically.
According to the book, Bonds gulped as many as 20 pills at a time and was so deeply reliant on his regimen that he ordered Anderson to start "cycles" -- a prescribed period of steroid use lasting about three weeks -- even when he was not due to begin one.
These allegations are based on information compiled by Fainaru-Wada and Williams over a two-year investigation that included court documents, affidavits filed by BALCO investigators, confidential memoranda of federal agents (including statements made to them by athletes and trainers), grand jury testimony, audiotapes and interviews with more than 200 sources.
If these allegations are true--and, in Bonds' defense, it may be difficult to verify some of the sources--then I suspect that he will not be elected in the Hall of Fame. Fainaru-Wada and Williams have painted a grotesque picture of a habitual cheater whose performance was greatly aided by prohibited drugs. Also, some will now argue that Bonds' existing records should be removed or have an asterisk placed next them. Needless to say, Games of Shadows will make for even more awkward times this season as Bonds approaches the home run records of Babe Ruth and possibly Hank Aaron.
And how many pitchers will now walk him -- every time up? He may never get another pitch to hit.
Thanks to Attorney Brian Barnes of the Mississippi College School of Law Library for alerting me to this story.
Posted By : Michael McCann
Choice or Situation? Student-Athlete Scholarships and Academic Progress Rates
Message posted on : 2006-03-07 - 12:15:00
Sports Law Blog reader Jason Chung--who, as you may remember, wrote an excellent article on racial discrimination and African-American Quarterbacks in the NFL--passes along a recent story on how few schools will lose scholarships for poor scholastic performance by their student-athletes. ("Few Big Names to Lose Scholarships based on APR," ESPN.com, 3/1/2006). Specifically, 99 Division I sports teams at 65 colleges and universities--or less than 2 percent of 6,112 Division I sports teams nationwide--will lose scholarships. Of those 99 teams, 90 are men's teams and 9 are women's teams, and the majority are in three sports: football (23), baseball (21), and men's basketball (17). Several Division I-A football teams lost quite a few scholarships (Temple lost 9; New Mexico lost 6), and several Division I-A basketball teams also suffered (e.g. Cal-Poly and East Carolina lost 2). But overall, few big names schools lost scholarships.
The NCAA's measuring stick for academic performance--the Academic Progress Rate or "APR"--is calculated by measuring the academic eligibility and retention of student-athletes by team each term. According to the ESPN article, an APR of 925 calculates to an approximate Graduation Success Rate of 60 percent. For a team to lose a scholarship, a student-athlete must have failed academically and left the institution; and the team's APR must be below 925 (out of 1000). Teams that fall below the NCAA's cutoff line would not be able to replace those scholarships when academically ineligible athletes leave school. The NCAA has limited penalties to a maximum of 10 percent of the scholarships.
Jason wonders whether the APR system leads to unintended and undesirable outcomes:
I have some issues with the APR – chiefly, the fact that scholarships are being denied to underprivileged youths that engage in athletics. I understand the desire for the NCAA to ensure the sanctity of education (namely, that student-athletes live up to the first part of their job descriptions) but could this not be better achieved through alternative methods (such as denying access to Bowl games)? Taking away scholarships from the great number of underprivileged youths that need such a scholarship to attend college in the first place seems counterintuitive to me.
Also, schools are being penalized for the lackadaisical scholastic attitudes of their student-athletes. Is this really fair? While I understand that many schools are rather non-involved in the academic lives of their student-athletes, is this necessarily a bad thing? After all, at what point does the student have to take ownership of his own decisions? If the student-athlete fritters away his own chance to get a (mostly) free education, why should the school face possible scholarship sanctions down the road for certain students' immaturity?
To summarize, I understand the sentiment in trying to raise graduation rates but I am puzzled by the methodology. I believe that denying scholarships as a penalty ultimately harms prospective student-athletes more than schools.
Jason raises some very good points. I especially like his point that when the NCAA takes away a scholarship due to the failure of an existing student, the real victim is the future student who would otherwise have had that scholarship. And that is especially unfortunate when that future student comes from an underprivileged background.
But in defense of the existing players who fail, I question how much of it is really personal responsibility and personal choice. The average Division I football and basketball player spends between 40 and 50 hours per week on team related activities (playing games, traveling, attending team meetings, working out, practicing), which obviously makes it rather
difficult for them to do well, especially when their school may limit the work hours of other students to 10 or 20 hours per week. I saw this first-hand while I was a student at Georgetown University from 1994 to 1998, and when I had the opportunity to do collaborative academic work with former Hoyas Jahidi White and Jerry Nichols--their entire lives revolved around the team, and yet they were expected to take a full load of classes. How can they realistically compete, particularly when the other students in their classes couldn't work more than 10-20 hours per week? To their credit, they were able to do relatively well. And you can aruge that since most student-athletes seem to be able to pass the APR, then it is an obtainable goal (although graduation rates for student-athletes at many top schools is abysmal).
But I do wonder about flunking out or otherwise stigmatizing students who are on campus solely to make the school a lot of money through their athletic prowess, and who do not have the time or academic background to succeed in class. It seems to send the wrong message.
Posted By : Michael McCann
The Wright Stuff? A Defense of the Harlem Globetrotters
Message posted on : 2006-03-06 - 09:18:00
On the excellent Truth on the Market, Professor Josh Wright (George Mason University School of Law) replies to my comments on CNN Money concerning the Harlem Ambassadors' complaint with the FTC against the Harlem Globetrotters and their exclusivity contracts. I argue that elimination or contraction of the exclusivity contracts would enhance competition in the market of barnstorming basketball, and that would be a good thing for fans. Wright contends:
[T]here is an economic fallacy underlying this logic that I cannot resist pointing out. The claim is that competition is not present where we observe these exclusivity clauses, or at least that there should be more competition, and that therefore antitrust law might improve consumer welfare eliminating the clauses. This is wrong. There is competition for the contract.
While I understand Wright's theoretical point, I find it hard to imagine how there can be actual competition for the exclusivity contracts when only one actor--an apparent monopoly--has the market power to obtain them.
A great post worth checking out.
Update: Professor Wright replies to my post above. This is one of those days when I am especially grateful to be a law professor: I can have a debate about the Harlem Globetrotters, and it still counts as work.
Posted By : Michael McCann
More on Iverson, Race/Culture, and the Olympic Team Snub (Part II)
Message posted on : 2006-03-05 - 19:13:00
More provocative commentary from the sportswriter and good friend who I referenced on Friday. Here are more of his remarks from an e-mail exchange we had:
Coach K and Coangelo are sending the right message, all right, as far as the NBA is concerned. Like everything else, the league is half-assing this. As much as both of us hate the age-restriction, it was a total half-measure. While it was paternalistic enough to appease a certain segment, only going to 19 instead of 20--while also increasing the number of NBDL farm teams--the league sent a pretty clear message that its commitment to the college farm system and its merits are waning quickly. (It's tough to emphasize the development of 18-year-olds if you're totally under the gun to produce a 20-win within three years or else. Meanwhile, the NCAA is taking away every trick in the book you used to employ -- academically ill-prepared kids and long practices, chiefly among them.)
Same thing with the dress code. How can you have one of these and not have any sort of restriction on cornrows, really nappy 'fros or tattoos? Hampton University does not allow 'rows in its business school. Cornrows are the sole basis of my dad's disdain for Donovan McNabb. Cornrows bug a lot of people, but they weren't addressed in the slightest. (Though I know that legislating hairstyles are different than dress, legally.)
Just throw [Coach K and Colangelo] on the pile of dog and pony shows we've seen recently. There will be others. The league and USA Basketball know that competitively, this could very easily blow up in their faces. And maybe soon. But as long as the "right" guys are on the team and the "right guy" is running it, they can say that they tried to make changes. After that, I guess AAU coaches will still be around to play whipping boy on the topic of America's decline in hoops.
As for those two guys being white, I'd smell a rat even if Billy King and John Cheney were running the show. The big thing is that no one respects NBA coaches as much as we should, even though most big-name college guys get sent to the pasture in a flash when they try coaching pros. For a lot of dupes, er, observers, a college coach "represents" the apex of competence (which a lot of us would be doing if we were playing inferior talent on a regular basis) in the same way that Allen Iverson is a mere symbol separate from his actual merits...
Sports and paternalism pretty much go hand and hand when it comes to black athletes, so I'm kinda like, what else is new.
The funny part about the NBA's brand of paternalism is that so much of it comes from outside. Sports talk radio honchos and sports columnists--not the most diverse group of people in the first place--seem to control the discourse where the NBA is concerned. And yes, they tend to be more paternalistic when it comes to NBA players than any other sport. And then, the NBA buckles worse than Frazier versus Foreman, instead of defending itself....
I think there are a lot of seemingly bright people who have an obvious blind spot when it comes to race, unless Bryant Gumbel or the president of NAACP's Philly chapter happens to sound off on it...
What I saw in the 2004 Olympics wasn't so much as a team of individuals as a really inexperienced team new to the FIBA game, overmatched by really experienced teams that had played together for a while and grew up with the FIBA game.
If you compare the ages of the 1992 team and the 2004 team (sans Laettner and Okafor), you see one factor that was pretty much ignored in the noise about what to do with USA Basketball.
One team had a roster full of veteran guys in full control of their talents. Another team had a roster full of very talented players who still had some growing to do in terms of harnessing what gifts they had. (Or compare the youths of the 1988 U.S. team--with its mix of "role players" and future NBA stars--against the veterans of the Soviet team that beat them, very few of whom made a real dent in the NBA.) So there's irony in the notion that a 33-year-old Allen Iverson would be an automatic liability on this team. To me, at least.
While I appreciate the concept of building a national team for the 28-month haul--and even changing the nature of the team--one smells a rat when Iverson isn't invited to COMPETE for a spot. (Barkley in 1984: Given a chance. Not the same deal here.) Is the goal to have ABI--Anybody But Iverson? Seems like another style over substance situation to me, no better than the previous seven McDonald's-ready teams sent to the Olympics and World Championships. Or to put it another way--borrowing, then turning a "White Men Can't Jump" quote upside down--we MIGHT be looking at white guys who "would rather look good first and play good second."
Posted By : Michael McCann
CNN Money on Harlem Ambassadors' FTC Complaint
Message posted on : 2006-03-04 - 14:45:00
Chris Isidore, a senior writer at CNN Money, has an excellent column on the Harlem Ambassadors' complaint with the FTC (Isidore, "Small Rival Files FTC Complaint against Globetrotters," CNN Money, Mar. 3, 2006).
As we have discussed previously (12/23/2005; 1/18/2006), the Ambassadors allege that they are being blocked from many public arenas around the country by a clause the Harlem Globetrotters require in their lease agreements which prevents other exhibition basketball team from playing in the same venue around the same time the Globetrotters are scheduled to appear. This type of clause is often called an "exclusivity clause," and it is used commonly used by circuses and other novelty acts. The Ambassadors allege that the Globetrotters are effectively forcing them to play in smaller venues (like high school and college gyms), playing before an average of 1,500 fans, when their product could generate far greater crowds if afforded the opportunity. The Ambassadors also note that unlike circuses and similar entertainment industries, the Globetrotters appear to enjoy a monopoly over barnstorming exhibition basketball.
I was interviewed for this story, and I contend that while the Ambassadors' may face an uphill legal battle, common sense seems to be on their side:
The Globetrotters refused to comment on the FTC complaint. But Michael McCann, a professor with the Mississippi College School of Law and an expert in sports business law, says that the FTC complaint is an uphill battle for the Ambassadors. "The FTC may look at this and say the exclusivity agreements are used by circuses and other forms of entertainment, so what's the problem," said McCann. He added though that the fact that few have tried to challenge the Globetrotters in the exhibition basketball arena does "lend credence to the Ambassadors' argument."
McCann also believes that the lease clauses are probably not the best idea for the Globetrotters in the first place.
"There's a real risk when you create your own David vs. Goliath story and you're Goliath. I think the clauses are unnecessary and they would continue to do well without them," he said. "It could be the best thing for them to have a little competition."
Sure, it wasn't that long ago that the Globetrotters were anything but a Goliath. As recently as 1993 the team was drawing only 300,000 fans annually and had revenues of $6 million with a net loss of $1 million . . . But a 2005 press release from the team said that [over the last 10 years] sponsorship revenue rose by almost 300 percent while operating profits increased by nearly 400 percent. What's more, the team reported annual attendance of 1.3 million in 2004, a record for the franchise.
Certainly, it is not often when I can incorporate a biblical reference into sports law analysis, but there it is: David v. Goliath. My many years of Catholic education are paying off. And before someone makes a comment, yes, we had a dress code. And I thought it was foolish then too (although the genuinely outstanding education more than made up for it).
But back to the story, it will be interesting to see whether the FTC acts on the complaint. To the extent the agency is animated to act in the Ambassadors' favor, I suspect it will first try to informally "encourage" the Globetrotters to remove the exclusivity window from future contacts. Should that fail, the FTC may issue a formal letter instructing the Globetrotters to do so and eventually bring charges through the Justice Department. Significantly, the Ambassadors' President and founder, Dale Moss, has stated that he is not interested in treble damages or extensive litigation: he just wants his team to have a fair shot. Such commentary seems to lend credibility to his team's complaint with the FTC: let's have a little bit of competition and see how the American consumer responds.
Posted By : Michael McCann
More on Iverson, Coach K, and the Olympic Team Snub
Message posted on : 2006-03-03 - 16:36:00
A prominent sportswriter who covers the NBA for a newspaper with a national audience e-mails me some excellent and provocative comments on Iverson and his Olympic Team snub:
Michael,
I've had a chance to see the pissing match over the A.I. issue on the Sports Law Blog, so I'll pass along a couple of comments.
Yes, it's just plain ignorant not to have Iverson as one of the 25 finalists for the team. If he goes in and it just so happens that he doesn't work out, I can live with that. But the idea that there are 22 players in world, let alone the U.S., more qualified than he for any team is just plain ridiculous, especially when you have two years to tweak the lineup.
However, the main issue to me seems to be that USA Basketball has never been about putting the best possible team on the floor, and probably less so since the NBA players were allowed to participate in international play. During the amateur era, you had coaches using the team to give favors to old friends, or to pump up players in their own programs.
During the professional era, it's been about having the most marketable team. And nothing seems to have changed for the '08 campaign, which is an attempt to distance itself from the 2004 team as much as possible. So many people saw the Athens Games as a referendum on the state of American basketball, that they ignored the fact that the wrong players were sent for the wrong reasons. (Carlos Boozer over bad-boy Rasheed Wallace pretty much sums it up.) And even though I don't necessarily disagree with the move, USA Basketball decision to totally overhaul its methods of preparing for the Olympics had the wrong motivations.
I'd be a little less cynical about their efforts if not for the selection of Diva K as the national team coach. If you're supposedly wanting to prepare for the international game, picking a tyrannical-type coach who spends most of his time in the college game -- a brand no more similar to FIBA than the NBA -- doesn't indicate much seriousness about completing the task at hand.
It's more of a PR move than anything else. If the pro coaches can't keep the players "in line", of course the answer is to introduce a famous "hard-nosed" coach used to lording his power over kids.
The rest of the moves I've heard of seem to be reactions to radio-show gripes from the 2004. Rebuffing Iverson is a show for the world that they don't want a star-driven team and bringing Bruce Bowen on is some kind of symbol of the "team concept". (As if Diva K is an anonymous figure; even more relevant, he's not above pulling rank on his bosses to get a raise, either, as he did during his dalliance with the Lakers.)
I don't mind Bowen being on the team -- because (after R. Artest) he's one of the best perimeter defenders in the NBA -- but it's an outgrowth of the notion that you need role players on a team such as this. You need that during the season when a team has only a handful of stars. When you don't have to contend with the draft or a salary cap, do you really need to have role players? How is it that the U.S. National women's team doesn't need "role players"?
Just preaching to the choir, I know.
Regards,
[name withheld]
Posted By : Michael McCann
Negligence and Fan Injuries from Pregame Tosses
Message posted on : 2006-03-03 - 11:42:00
Sports Law Blog reader Will Li passes on news from the State of Washington, where a state appellate court in Taylor v. Baseball Club of Seattle (Mariners) upheld a trial court's ruling that a Mariners fan who was struck in the face with a pregame warm-up toss had assumed the risk. The injury happened in 2000. Specifically, about two hours before a Mariners-Rangers game, Delinda Middleton-Taylor was standing in the fourth row down the right-field line. She was trying to locate seats for herself, her two sons, and her boyfriend. At that moment, a throw by Jose Mesa overshot its target--Freddy Garcia--and it directly hit Taylor's eyeglasses, shattering them, and causing pieces of glass to cut into her cornea. To this day, she continues to suffer from blurry vision (for more background, see Peter Lewis, "Appeals Court Rejects Claim of Injured M's Fan," Seattle Times, Mar. 1, 2006).
Taylor asserted that such an injury had never been documented before in a major league baseball game, and thus it was impossible for her to have assumed its risk. She also argued that the Mariners failed to incorporate warm-up methods used by other teams, and that they should have had a formal policy prohibiting pitchers from practicing near the stands.
The Mariners argued that their duty to protect spectators from balls entering the stands was satisfied by providing a protective screen behind home plate and Taylor--who had already been to Safeco field in the past and had watched Mariners game on TV--was familiar with baseball, Safeco Field, and the inherent risk of balls entering the stands, and therefore had assumed the risk of her injury.
The appellate court agreed with trial court's granting of summary judgment for the Mariners. The Mariners showed that Taylor had a "full subjective understanding of the specific risk, both its nature and presence, and that she voluntarily chose to encounter the risk." In making this conclusion, the court noted (and I added the numbering for clarity):
1. [I]t is undisputed that the warm-up is part of the sport, that spectators such as Taylor purposely attend that portion of the event, and that the Mariners permit ticket-holders to view the warm-up. Therefore, we reject Taylor's attempt to delineate between portions of the event and assign varying standards of care to the defendant . . . warm-ups are integral to the game of baseball and a spectator assumes the risk of being struck by a
baseball during warm-ups.
2. There is no evidence that the circumstances leading to Taylor's injury constituted an unusual danger. It is undisputed that it is the normal, every-day practice at all levels of baseball for pitchers to warm up in the manner that led to this incident. The risk of injuries such as Taylor's are within the normal comprehension of a spectator who is familiar with the game. Indeed, the possibility of an errant ball entering the stands is part of the game's attraction for many spectators.
3. [As] to whether the risk of injury would be foreseeable to a reasonable person with Taylor's familiarity with baseball, the record contains substantial evidence regarding Taylor's familiarity with the game. She attended many of her sons' baseball games, she witnessed balls entering the stands, she had watched Mariners' games both at the Kingdome and on television, and she knew that there was no screen protecting her seats, which were close to the field. In fact, as she walked to her seat she saw the players warming up and was excited about being in an unscreened area where her party might get autographs from the players and catch balls.
Will Li asks some good follow-up questions:
It's interesting that she was hit when standing in the fourth row of right field - the article says that it's uncertain if Freddy Garcia, the target of Mesa's throw, was able to touch the ball, but you really have to wing a ball to get it up in the fourth row, and at that point, it's unlikely that the target of the throw is going to be able to get anywhere near it.
Would the woman have been better of suing Mesa and not the Mariners, since the action involved wasn't actually part of a game?
So who was in the best position to prevent the harm: Taylor or the Mariners? And what was the significance of the injury being a "fluke" -- couldn't that cut both ways? As to Taylor not suing Mesa (or Garcia), that is an
interesting point, and I suspect it is because Mesa would argue that he was reasonably performing his employment functions, and that an accident simply occurred. But I wonder why Taylor didn't sue her eyeglass company -- aren't most eyeglasses supposed to be "shatter proof" or I am wrong about that?
Posted By : Michael McCann
Trivia Question of the Day
Message posted on : 2006-03-02 - 00:10:00
Sports Law Blog reader and Roger Williams law student Thomas Santanello shares a trivia question: Is this the NBA or the NFL?
* 36 have been accused of spousal abuse.
* 7 have been arrested for fraud.
* 19 have been accused of writing bad checks.
* 117 have directly or indirectly bankrupted at least 2 businesses.
* 3 have done time for assault.
* 71 cannot get a credit card due to bad credit.
* 14 have been arrested on drug-related charges.
* 8 have been arrested for shoplifting.
* 21 currently are defendants in lawsuits.
* 84 have been arrested for drunk driving in the last year.
Answer here.
Although these statistics--as the source correctly notes--are mere urban legend, they are based on an underlying truth (i.e., a higher percentage of congresspersons break the law or behave badly than we assume), and they seem to beg the question: Why don't we spend more time worrying about the trouble-making lawmakers we elect than about the trouble-making NBA and NFL players we follow? And shouldn't we expect more of congresspersons than NBA and NFL players? And yet despite frequent scandals and poor behavior, over 90 percent of U.S. Representatives and U.S. senators are somehow re-elected, and many even run unopposed. Quite a democracy we have.
So, to do our part, we at Sports Law Blog should probably write more about stories that matter-- the Jack Abramoff lobbying scandal, Tom Delay's indictment, Duke Cunninghman's bribery plea--than whether Allen Iverson should be able to wear a doo-rag or whether Greg Oden should be able to enter the NBA Draft.
Nah, forget that. Back to Iverson and the Olympic Team snub . . .
Posted By : Michael McCann
"Bloody Thursday" on the Horizon?
Message posted on : 2006-03-01 - 14:49:00
I have been monitoring the NFL's attempts to extend its collective bargaining agreement (CBA) over the past few months. Like most people, I just assumed it would get done. After all, the NFL has been the model of labor peace since the crippling 1987 strike. The league is consistently cited as the pinnacle of the professional sports leagues. But now, it appears that the league and the players cannot reach an agreement and there labor troubles are afoot.
Len Pasquarelli has an excellent summary of the next step, if an agreement cannot be reached by 4pm today.
By Thursday, however, when the real-world ramifications of the failed labor talks become more apparent, fans in a lot of NFL precincts will take notice. With negotiations toward an extension having broken off Tuesday afternoon -- despite earlier optimistic reports that the sides were poised to strike an agreement -- salary cap managers from several franchises are readying themselves for what one general manager suggested late Tuesday will come to be known as "Bloody Thursday."
Translation: Because so many teams are up against the projected cap limit of $95 million to $96 million for 2006, and the lack of a CBA extension means there are few options for relief, some big-name players will be jettisoned by Thursday, when teams must be in compliance with the spending limit.
"In past years, you'd see a lot of guys released who maybe still had some name value but who were really in decline in terms of production," said one AFC team executive who was working late Tuesday, trying to figure out how to pare down a prohibitively bloated cap figure. "This year? People are going to be stunned -- not just by the quantity of players who are cut by Thursday but by the quality, too. It's going to be ugly. There's going to be blood in the streets and, compared to past years, it's going to be from some bluebloods, guys who can still play."
I recommend the entire article.
It appears that both the players and the owners stand to lose a significant amount from the lack of an agreement and playing 2007 as an "uncapped" year. How much this will hurt football remains to be seen, but as with all things at the top, there is nowhere to go but down.
Posted By : Greg
Lack of AI? Culture Bias and U.S Olympic Basketball
Message posted on : 2006-02-28 - 14:57:00
In a baffling move, Allen Iverson--who is the NBA's 2nd leading scorer and is 8th in assists per game--has been left off the U.S. Olympic team. Iverson had repeatedly expressed a desire to represent his country and to be on the team, which is directed by Jerry Colangelo and coached by Mike Krzyzewski. The team will be announced this Sunday and will include 22 NBA players, 2 college players, and 1 high school player. And no Allen Iverson. I don't care who else is on the team: Iverson should be on it. Just check out his stats from this season and where he ranks in the NBA:
But perhaps more impressive than his stats is his reputation for being the toughest player in the league. The guy is no taller than 6'0 (and my brother Bill, who is 6'0 and has stood next to Iverson, swears that Iverson isn't taller than 5'11), weighs no more than 185 pounds, and yet he
fearlessly drives to the hoop all the time, unafraid of being mauled by guys a foot taller and a 100 pounds heavier. He also plays hurt all the time, and doesn't worry about his contract or suffering further injury. In other words, he plays exactly how coaches tell their players to play. He is a warrior and an inspiration for how the game should be played.
So why then was he left off? Could it be the tattoos? The rap music? The "thug" appearance? Clearly, not selecting Iverson badly undercuts the legitimacy of the selection process. But more importantly, think about the underlying message it sends: it repudiates this "culture of merit"/Horatio Alger society that we like to believe exists in our country, that we tell others exists in our country, and that would presumably be reflected in how we chose our Olympians. Just the opposite, actually, Colangelo and Krzyzewski's decsion seems emblematic of the paternalism epidemic sweeping men's basketball. Hopefully the rest of the world doesn't take notice.
Posted By : Michael McCann
Why We Love Sports
Message posted on : 2006-02-28 - 10:00:00
Every once in a while, it's important to take a step back and remember why we all love sports in the first place. It's not because we like to see rich players and even-richer owners bickering over millions of dollars. Sports is so much bigger than the pros. It's so much bigger than age limits, salary caps, free agency, steroids and pre-game shows. Sports is about passion, about playing for the love of the game. It's about ordinary people creating extraordinary moments. And that's what makes this story so incredible. Click on the link and watch the video. You will not be disappointed.
Thanks to SportsProf for the link to DaveSez, who had the original post.
UPDATE: I have fixed the link to the video. If it doesn't work, then click here for a number of other videos with the story.
Posted By : Greg
The Many Faces of Sports Law: Immigration
Message posted on : 2006-02-28 - 09:14:00
Immigration law is not a topic we normally cover on this site, but it can have a profound impact on sports. After 9/11, a number of colleges had difficulty getting return visas for their foreign students, including those recruited to play sports. And for the Olympic Games, where citizenship is key, immigration law can be of the utmost importance. Just ask Ben Agosto and Tanith Belbin, the US ice dancing pair that won the silver medal. One of the first thank yous they delivered was to their lawyers.Without that legal team -- led by Barney Skladany of the Washington office of Akin Gump Strauss Hauer & Feld and assisted by Paul Virtue of Washington's Hogan & Hartson -- Agosto and Belbin would have been forced to sit out their second Olympic competition in four years.
Belbin, a native of Canada, had a citizenship problem. Although she and Agosto had skated for the United States 32 times in national and international competitions, only American citizens can be on the U.S. Olympic team.
She came to Detroit to train with Agosto in 1999, earned her status as an alien of "extraordinary ability" in November 2000, and received her green card in early 2002. But she faced a five-year residency requirement, which meant she wasn't eligible for citizenship until 2007. She and Agosto needed a miracle by Dec. 31, 2005, to make the U.S. Olympic team.
(Coyle, "Akin Gump Wins Olympic Race with the Clock," Natl. Law Jrnl., 02/28/06). The rest of the article details the process the team used to expedite citizenship, including an assist from Michigan senator Carl Levin.
Posted By : Greg
Sharing the Blame for Age Limits
Message posted on : 2006-02-27 - 12:54:00
Posted By : Greg
NBA Age Limit and Questioning "Business Reasons"
Message posted on : 2006-02-27 - 10:54:00
Last week,
Greg posted on David Stern's recent comments about the new NBA age limit. Stern said the new limit was "a business issue" and nothing else. He noted that it would be better for the NBA that amateur players develop in college, and that NBA scouts could better assess their talent while college, and, after playing in college, these players could more immediately make contributions when entering the NBA. To illustrate this point, he cited Celtics rookie Gerald Green, a high schooler taken with the 18th pick in last year's draft who hasn't played much and has bounced back-and-forth between the NBA and NBDL.
In light of Stern's reasons, I found it interesting to
read that the 20th player selected in the same draft as Green -- Julius Hodge, a 21-year old college senior from NC State -- has, like Green, barely played this season and, like Green, has bounced back-and-forth between the NBA and NBDL.
So let's apply the Stern 3-Part Test:
1) Did Hodge develop his game in college? Against other college players: yes; against NBA players in games, practice, or summer league: no.
2) Were NBA scouts better able to assess his talent? Apparently not.
3) Did Hodge make an immediate contribution when entering the NBA? He's averaging 1 point per game on 36% shooting--and he's now off to play for the Austin Toros of the NBDL.
So I wonder: maybe it's not about a player's age, but rather others' ability to measure his talent? I mean, why would NBA scouts, with all of the information they had obtained from watching Hodge play college basketball (and at a major program), pick him so high? How come he hasn't made an immediate impact after doing so well in college and for so long in college? Wasn't he great in March Madness? Wasn't he great in the conference tournaments? As Dick Vitale would say, wasn't he awesome baby??!! In fact, Vitale
actually did say that.
And if the NBA business model is really enhanced by amateurs playing in college, then how come there have been so many college juniors and seniors who were drafted high but ended up playing poorly in the NBA? Rafael Araujo, Trajan Langdon, Ed O'Bannon, Mateen Cleaves, Kirk Haston, Brandon Armstrong, Dahntay Jones, Marcus Haislip, Reece Gaines, Marcus Banks--this list could go on and on and on. These players were twenty-one, twenty-two years old when they entered the NBA. They had played three or four years of college where they had excelled. They had attracted the interest of NBA scouts who gobbled up all that "college basketball information."
Would an arbitrary age floor of 19 or 20 years of age have stopped any of them from being drafted? Nope. Too bad the NBA couldn't create a rule that protects itself
from drafting poor players, because that is what it really needs.
The other thing is this: don't automatically nod your head when commissioners, CEOs, and other managers cite "business reasons" as a justification for a move. "Business reasons" does not mean the reasons are correct, intelligent, or even legal--think of all of the companies that have failed in this country: they likewise made "business decisions," but they weren't good ones. And some of them--like MCI WorldCom or Adelphia or the scores of companies that have violated labor and antitrust laws--also made decisions based on "business reasons" that were illegal, even though it took us a while to figure that out. "Business reasons" can also be a purposefully ambiguous phrase that veils other, more socially-nefarious reasons. We sometimes don't pick on up these problems because when a business says that it is doing something to "maximize profits" or for "maximum efficiency," we tend to accept that reason without further inquiry--and businesses know that, so they can get away with a lot of stuff, at least for a while. Sometimes a healthy dose of skepticism toward corporate behavior isn't the worst thing. Businesses are not always right, and they are not always good or law-abiding.
And going back to the NBA Draft, again, despite the popular and appealing rhetoric, it's not about age and it's never been about age; it's about talent, and scouts' ability to assess it. Age is just a proxy, and it appears to be a poor one in the NBA. Any good CEO would tell you that.
High School Diploma Factories to Meet NCAA Eligibility Requirements
Message posted on : 2006-02-25 - 01:27:00
sfd
http://www.nytimes.com/2006/02/25/sports/ncaabasketball/25preps.html?hp&ex=1140930000&en=c338c52b380c9d61&ei=5094&partner=homepage
sfd
Posted By : Michael McCann
Brooklyn Law Review Article: It's Not About the Money
Message posted on : 2006-02-24 - 10:56:00
I have posted on SSRN an updated version of my forthcoming law review article: It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review __ (forthcoming, 2006). The article applies two law and economic approaches to sports contract-making: the rational actor model (i.e., athletes have economic and other employment preferences and pursue them) and behavioral economics (i.e., cognitive errors affect athletes' employment preferences in ways that they do not appreciate). I conclude that behavioral economics in sports contract-making appears far more salient than many presume. I would welcome any comments by e-mail (mmccann[at]mc.edu).
Also, you may download the article for free from the abstract linked above. The download only requires an SSRN account, which is free (and which provides you with access to thousands of interesting articles, papers, and drafts).
Posted By : Michael McCann
Don't Tell Me The Results!
Message posted on : 2006-02-23 - 18:07:00
I am a big fan of technology and the Internet age -- the rise of cyberspace has allowed me to publish this blog, makes everyday tasks much easier and provides hours of online procrastination. But the instant gratification, Need to Know Now!! culture that it has spawned is often problematic. The latest example -- the results of the Olympics.
An hour ago, I grew bored at work and decided to check out the New York Times homepage, as I had not read today's issue. What am I greeted with? A banner headline telling me the results of tonight's figure-skating competition. What?? Now that I knew the result, I checked out ESPN -- same thing. CNN/SI -- same thing!! Why do these Internet news sites insist on making it impossible to go through the day without knowing the results of competitions that will be shown that night. Well, I thought, perhaps they are trying to scoop the rival NBC network by taking away the drama from tonight's broadcast. But, when I visited NBCOlympics.com, guess what I found? A banner headline telling me the result! And NBC wonders why its ratings are so low.
Now, I have no problem with news sites featuring stories about the competitions, including the results, posted in real time. Many people want to know, and they should be able to. But a lot of people don't want to know. Should the major news organizations not respect this desire?
It would not be hard for new sites to have a link on the homepage that says, "Dramatic Result in Ladies Figure Skating! Click here for results!" Putting this on the page, rather a banner headline with the result, would allow the sites to maintain the "We are the fastest" bragging rights, while still allowing some fans to watch the broadcast in suspense. It seems to me that part of the responsibility of the news media is not only to satisfy the public's thirst for knowledge, but also to respect the public's desire not to know, at least for six hours.
One news site has it right. ABCnews.com has a link that says "Get the results here first" without spoiling the ending. You can keep up with the day's latest news, and you maintain the option of learning the results of events that will be televised tonight. If they continue this, then I guarantee that during the next Olympics, ABC news will get my business. Other sites won't, until they respect my right not to know.
Posted By : Greg
Incidentals Matter: Antitrust Class Action Filed Against NCAA
Message posted on : 2006-02-23 - 00:12:00
My thanks to Penn State/Dickinson Law School 2L Bobbi-Sue Doyle-Hazard and Attorney Chris Callanan for alerting me of the media coverage concerning an important federal antitrust lawsuit filed last Friday in the U.S. District Court for the Central District of California. The complaint was filed by several former Division I-A athletes who represent a class of thousands of former and current Division I-A men's football and basketball players. They seek to prohibit the NCAA from precluding member colleges from offering athletic scholarships up to the "full cost of attendance" (meaning all of the actual costs of attending college). Presently, scholarships may cover tuition, room, board and required books but not incidentals, such as phone bills, laundry, school supplies, and travel expenses. Particularly for players from lower-income families, "incidentals" can prove quite costly. In fact, according to the NCAA's own statistics, incidentals for basketball and football players average about $2,500 a year--for families hovering around the poverty line (which, for a family of four, is one that earns just under $19,000 a year), $2,500 obviously means a lot.
In terms of antitrust law, the complaint primarily concerns Section 1 of the Sherman
Antitrust Act: the plaintiffs contend that these NCAA rules comprise an unlawful restraint of trade by denying men's basketball and football players of the billions of dollars in revenue they generate for the schools and conferences in which they play. The suit also alleges that this revenue should at least pay for the "full cost" of attending college. This argument follows the observation that Division I-A men's football and basketball seem to provide a economic windfall for just about everyone--the schools, conferences, coaches, sneaker companies, television networks, ad agencies, merchants, videogame companies--everyone, that is, except for the persons who actually generate the market interest: the basketball and football players. This is a topic, among others, that Joe Rosen and I address in our forthcoming essay in the Case Western Reserve Law Review.
How will this case resolve? I suspect we'll see a settlement, along with the NCAA assenting to cover more of the incidentals. The NCAA can't afford to lose this case: the lawsuit applies to 144 colleges, and if back compensation for "full cost" is imposed, around 20,000 affected athletes will receive an estimated $117 million in unreimbursed incidental expenses. Plus, NCAA President Myles Brand has previously enunciated a need to move closer to "full cost," so doing so now--even when threatened by litigation--would not likely appear contradictory.
For two excellent media accounts of this lawsuit, take a look at Mark Alesia's "Lawsuit: NCAA Should Pay 'Full Cost'" in the Indianapolis
Star and Doug Lederman's "Court Challenge on Athletic Aid" in Inside Higher Ed. For more reaction from legal scholars, check out Hanno Kaiser at Antitrust Review and Josh Wright at Truth on the Market. And for analysis from a seasoned litigator, check out Tom Kirkendall's post on Houston's Clear Thinkers.
Posted By : Michael McCann
Engendering Change in the Olympics
Message posted on : 2006-02-23 - 00:02:00
I admit it. I watched Olympic Ice Dancing. Perhaps this makes me less of a man, but there are two things working in my favor. One, I watched it with my wife. Two, I like Tanith Belbin. As I watched it, though, I couldn't help but thinking -- are we far off from seeing a male couple out on the ice?
The Olympics, like most sports, are divided by gender. And often they are divided according to traditional gender roles and stereotypes. Ice Dancing is one man and one woman. Synchronized swimming is female-only. Ski jumping is restricted to men. Softball is restricted to women. But as gender roles and ideas of sexuality change over time, how will this affect the composition of Olympic sports?
Bill Mays knows that change will not come overnight. Mays made history in 1996 when he became the first male to compete in the US national championships of synchronized swimming. He also competed with his partner, a female, in future national championships and the 1998 Goodwill Games. His attempt to compete in the 2004 Olympics in Athens was denied, however, when swimming's international governing body (FINA) did not petition for mixed duet synchronized swimming to become a sport.
Why, though, should there have to be a mixed event? Is there some reason why men cannot compete against women in this sport? I can find no gender requirement in FINA's rules for synchronized swimming. And it does not seem that a male would have any great advantage over a female in a sport that values artistry as much as strength. Besides some possible teasing about competing in a "woman's sport," what harm is there if males compete?
The same is true for ice dancing. Is it inconceivable to see an all-male or all-female dancing pair? For now, the answer is yes. Rule 500(2)(b) of the International Skating Union rules state that a pair shall be comprised of one man and one woman. But is this rule based on anything other than tradition or views of what is "normal"? A pair of men would not seem to have a great advantage in ice dancing, which features footwork, artistry and some lifts, but no jumps. It might seem a little odd at first to see two men in sequin jumpsuits dancing in tandem to 'Bolero', but so did Billy Jean King defeating Bobby Riggs.
As traditional notions of gender and sexuality break down, will sports evolve to reflect changing attitudes? Or, is it possible that sports will lead the world into these changes, much like Jesse Owens and Jackie Robinson paved the way for greater racial equality in this country? Change may be slow in coming, but don't be surprised if you see a man swimming in sync or two men dancing on the ice in the not-too-distant future. And after a while, such an idea might not seem odd at all.
Posted By : Greg
Mental Illness and Leadership Positions
Message posted on : 2006-02-21 - 17:01:00
Benedict Carey of the New York Times has a fascinating piece on the apparent prevalence of mental illness among U.S. presidents. (Carey, "West Wing Blues: It's Lonely at the Top," N.Y. Times, 2/14/2006). According to a new study by the Duke University Department of Psychiatry, almost half of American presidents from 1789 to 1974 suffered from a mental illness at some point in life, and more than half of those presidents struggled with their symptoms — most often depression — while in office. According to the study, their illness was typically evidenced by excessive consumption of alcohol. Yet the study identifies a hopeful slant that works to combat the common stigma of mental illness: if people with mental illness can function at the presidential level, then perhaps we shouldn't so summarily dismiss or ostracize those with mental illness.
But reading this piece made me wonder about whether we might find a similar trend among coaches, and particularly among pro coaches or college coaches in high-pressure/high-profile situations. Just speculation on my part, but I suspect that coaches and presidents may share some of the same personality traits -- high ambition, tireless work ethic, an exaggerated sense of self-critique -- so it seems at least plausible that they might share in a hyper-tendency to suffer mental illness. It would certainly make for an interesting study, if such a study hasn't already been conducted. Moreover, if we found evidence that coaches were similar to presidents in suffering from mental illness, then think about the powerful social message that would send about how we should regard the employment capabilities of the mentally ill. And lastly, I wonder: might there be something endemic about "leadership positions" that attracts certain personalities, and do those personalities share the same positive and negative traits regardless of the type of leadership position they hold?
Posted By : Michael McCann
Stadium Security: Necessary or Invasive?
Message posted on : 2006-02-20 - 11:47:00
Chris Graham of the Augusta Free Press has an extensive piece on the legal implications of new techniques in stadium security. The article also addresses a recent preliminary injunction imposed by a state judge in Florida prohibiting officials at Raymond James Stadium -- home of the Tampa Bay Buccaneers -- from conducting searches (the case is now being heard in federal court). (Graham, "At What Price Security?," Augusta Free Press, 2/20/2006). I was interviewed for the story. Last October, Greg wrote an outstanding post on this topic and the constitutional implications of pat-downs and other searches.
Here are some excerpts from Graham's story: (I debate the issue with a lawyer at the ACLU):
"I think since 9/11 we've become more tolerant of intrusions on our property and person - that we recognize that times have changed, and that we have to give up some of our personal freedoms to ensure security," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog.
That has generally been the case in sports venues across the country in the aftermath of the Sept. 11, 2001, terrorist attacks. But there has been something of a blowback that has gotten going in recent months - with suits filed against stadium authorities in Tampa Bay and San Francisco related to patdown searches of fans attending NFL games in those two cities. "The immediate legal issue is our Fourth Amendment right to be free from unreasonable searches and seizures," said Rebecca Steele, the director of the ACLU of Florida's Tampa office, which is acting on behalf of a Tampa Bay Buccaneers' season-ticket holder to challenge the patdown-search policy at Raymond James Stadium.
"The law is really pretty clear - that a suspicionless patdown search is presumed unconstitutional unless certain exceptions exist. What we said, and the court agreed, is that those exceptions just don't exist here," Steele told The Augusta Free Press . . .
McCann, for his part, agrees with Steele that "there's a limit that we don't want to cross where it gets too invasive." "But I think there's a general consensus that times have changed, and we've been more fortunate than anything else that we've only had 9/11," McCann told the AFP.
"Sporting events, perhaps more than any other venue, would appear to be a prime target for a terrorist strike. And one terrorist strike in a stadium could change everything - be it a bomb, be it any type of attack," McCann said.
"The fact that we haven't had that type of event is a tribute to the security," McCann said.
Does stadium security go too far? Is it unnecessary? Does it deter? Is it really about teams not wanting to be sued later? And if God-forbid a terrorist group struck at a sporting event, how would that change the world of sports? Would people still go to games?
Posted By : Michael McCann
Wouldn't You Have to Be Drunk to Wear This?
Message posted on : 2006-02-18 - 13:45:00
Now that Mike has convinced me never to buy food at a fast-food joint (2/18) or ballgame (2/11) again, perhaps something a bit more irreverent is in store. As it turns out, you can be "drunk as a stump," but you shouldn't drink when you're a tree: The Stanford Tree has been felled for bad behavior.
Fifth-year senior Erin Lashnits, who dressed as the rowdy mascot for the university's irreverent band, lost her Tree privileges Thursday after her blood-alcohol content was measured at 0.157 at a basketball game against Cal. That's not only too drunk to legally drive but too high to be a responsible Tree.
To avoid possible disciplinary problems with the school's athletic department or administration, the band decided to give her the ax.
If Lashnits becomes a lawyer, she will almost certainly have to include this incident on her bar application. That should make for an interesting explanation...
Posted By : Greg
Hold the Blood, Please: More Concerns for Food Security
Message posted on : 2006-02-18 - 13:25:00
We all complain that food at ballgames costs too much. A fairly disgusting hot dog can run up to seven bucks, and clearly-microwaved nachos can cost three or four dollars. So some of us try to get around those prices by bringing in our own food.
We now learn that there might be another good reason to do so, at least if we assume that what I call "food security" is of similarly low-levels at ballparks and fast food restaurants:
A woman who said she found blood smeared inside her bag of french fries is suing McDonald's Corp. for at least $10,000. Lora Davis, 42, said she was eating the last several french fries that came with her Happy Meal when she noticed the blood. "At first, I felt disbelief," she said. "Then fear." Davis bought the meal at the drive-through window of a Gastonia, N.C., McDonald's on Nov. 26, 2004, and ate it at her office desk.
When she found the blood, she said, she called the fast-food restaurant and spoke with an apologetic assistant manager. The person later called back and said the blood came from an employee who had suffered a cut. A regional manager later told Davis the unidentified employee had been fired.
An attorney for Davis said attempts to reach an out-of-court settlement have been fruitless so far. A McDonald's official declined to comment Wednesday on Davis' case because her legal claim is active.
Davis said she continues to have her blood tested, though she has not suffered any illness. She said she stopped eating out for six or seven months. "I get sick when I think about it," she said.
Why a 42-year old woman would order a Happy Meal is another matter, however. Any bets on whether she's also a Harry Potter fan?
Posted By : Michael McCann
Jim O'Brien v. Ohio State University: Materiality, Honesty & Breach of Contract
Message posted on : 2006-02-17 - 16:34:00
Doug Lederman of Inside Higher Education explores Judge Joseph T. Clark's holding in O'Brien v. Ohio State University (Ohio Court of Claims, 2006). (Lederman, "Court Win a Rule Breaker," Inside Higher Education, 2/16/2006). The case concerns a breach of contract claim: O'Brien alleges that Ohio State breached his employment contract by firing him after learning of O'Brien's past NCAA recruiting violations. Specifically, back in 1998, O'Brien gave (or, in his words, "loaned") $6,000 to Alex Radojevic, a 21-year old, 7'3 center from Serbia and Montenegro, in order to help pay for Radojevic's father's funeral. O'Brien never bothered to report this "loan"--which, unsurprisingly, was never repaid, even though Radojevic was selected 12th overall in the 1999 NBA Draft, after which he immediately signed a multi-million dollar contract with the Raptors. O'Brien felt that it wasn't important enough to mention, since he was doing it out of charity, and that he suspected that the NCAA would rule Radojevic ineligible anyway, since Radojevic had likely earned income playing basketball in Europe. And that is exactly what happened: the NCAA would later rule Radojevic ineligible because he had earned income playing hoops in Europe.
But when O'Brien told his athletic director about the loan six years later, he was fired. O'Brien sued the school for $9.5 million in lost wages and other damages, contending that Ohio State couldn't discharge him until the NCAA had ruled on the violation. Although Judge Clark held that O'Brien did, in fact, violate NCAA rules, that violation--giving $6,000 to a potential recruit--wasn't sufficiently serious to warrant his dismissal. O'Brien's contract with Ohio State did not specify that an NCAA violation could trigger a termination of the contract, and absent that specific language, Judge Clark reasoned that Ohio State could not terminate it. A future hearing will determine how much Ohio State owes O'Brien in damages.
Duke Law Professor Paul Haagen and I were interviewed for Lederman's article:
Experts on college sports law had mixed assessments of potential impact of the Ohio State decision.
Michael McCann, an assistant professor of law at Mississippi College School of Law and a contributor to Sports Law Blog, characterized as “interesting� Clark's conclusion that a “clear NCAA violation by Jim O'Brien� does not constitute a material breach of his employment contract. He added: “By implication, the judge seems to be diminishing the importance of NCAA recruiting rules, and the idea that a rule violation should not constitute a material breach could — in theory — create deleterious incentives for coaches when recruiting players.� Paul T. Haagen, a professor of law at Duke University, took a narrower view, saying the case in no way “goes to the authority of the NCAA to regulate or of the authority of Ohio State to regulate� college sports or the behavior of coaches. “This is not judicial activism,� he added. “This is what judges are supposed to do — using basic contract law to decide whether� Ohio State followed the contract it had with O'Brien. ("Whether the judge got it right from a factual standpoint,� he said, “is a different matter,� on which he did not offer a judgment.) But the lesson for Ohio State and other colleges, he said, is that “institutions should be incredibly careful about putting themselves in a position in which a judge, doing what a judge is supposed to do, will hold them liable for things they believe with good reason — whether or not it's sufficient
reason — that they need to do.�
Should we really believe O'Brien when he says that the $6,000 gift to a potential recruit wasn't important enough to mention to his employer? Or that he actually thought that Radojevic was going to be ruled ineligible by the NCAA, but that he still wanted to give him $6,000 anyway? Maybe O'Brien was genuinely moved by Radojevic's plight--his father had just died, after-all, and the family apparently had little money. Plus, Radojevic was 21-years old and not 17-years old, so a suspicion that he had earned compensation playing hoops in Europe wasn't implausible. But even if we believe that O'Brien knew all of this, it still doesn't explain why he would keep the "loan" a secret for six-years or why his charity would just happen to go to a 7'3 center (there is no apparent evidence that O'Brien was otherwise charitable). As to the significance of the employment contract's lack of specificity, you can expect, as Paul Haagen notes, that we'll now be seeing more carefully-tailored deals between colleges and coaches.
Posted By : Michael McCann
Renegotiation of NFL Contracts: Comparing Chad Pennington and Terrell Owens
Message posted on : 2006-02-16 - 17:37:00
Rick Karcher brings up a good point about the Jets efforts to renegotiate Chad Pennington's contract:
When I read this story, I couldn't help but think about the irony between the Jets-Pennington situation and the Eagles-Owens situation, which really highlights the impact of non-guaranteed contracts in the NFL.
Rick is right. And think about: while Terrell Owens was widely lambasted as greedy and selfish when he sought to renegotiate his contract last year-- "If he is so unhappy with this contract then why did he sign it?", the Jets are somehow seen as rational economic actors who deserve our understanding. Why are we more comfortable when a team seeks to lower a contract value than when a player seeks to do the very opposite? Aren't they fundamentally doing the same thing: looking out for their best economic interests? Or is it just about TO?
Posted By : Michael McCann
David Stern on the Age Limit
Message posted on : 2006-02-16 - 16:35:00
I really like Bill Simmons. His story is the dream of many bloggers -- start a website doing something you love, then get hired by a major company to do that same thing (only for a paycheck!). And now, in addition to columns on sports movies and gambling, he has begun doing some very interesting interviews. This week, he has one with David Stern. The chat covers a wide range of topics, including conspiracy theories ("the frozen envelope") and the WNBA ("It's probably the last and best shot for a successful women's professional sports league.").
But the most interesting segment (in my opinion) was Stern's take on the age limit. In a nutshell, the NBA went for it because it is good for business:This was not a social program, this was a business issue. There was a serious sense that this was hurting our game. Having an 18-year-old player not playing, sitting on the bench, is not good for basketball. If we could have these kids develop for another year, either (A) they'd see that they weren't so good, and we'd see that they weren't so good, or (B) they would get better, and when they came, they would be able to make a contribution. And that would improve the status of basketball.
****
. . . [P]eople were killing us for it, they were saying, "Oh, the basketball's terrible because the players are too young, they don't have the requisite skills, they don't have this, they don't have that." Actually, some do, some don't, a year later they're going to be better, [plus] the opportunity to send them down, like a Gerald Green, to get minutes so the team could say, "You know what, he looked good. He got his rhythm back, he got his confidence back, he got to play a few minutes." That was the whole idea. This last collective bargaining agreement was about basketball and about player reputation. It wasn't about the money."
Granted, Stern's argument does not address the potential antitrust problems of the age limit (I think- 5/25/04, as does Prof. Gary Roberts - 4/7/05, that there is not a concern; Mike thinks there is - 2/7/06).
But it does respond to Mike's excellent points regarding whether -- as a matter of policy -- leagues should have age floors. It is true that age limits will harm the interests of certain players (i.e., Frank Gore and Randy Livingston), but at the end of the day, if the NBA as a whole is not healthy, all of the players will suffer. Stern has a duty to maximize not only the growth and revenue of the NBA, but the popularity of basketball as a whole. By doing so, he ensures that hundreds more young men -- economically disadvantaged and otherwise -- will have an opportunity to make millions of dollars playing a game they love.
Posted By : Greg
From the Land of Mike Dukakis to the Land of Trent Lott . . .
Message posted on : 2006-02-15 - 15:14:00
If you are in Massachusetts or Mississippi (my two favorite states!), you are in luck tomorrow, as there are two excellent events open to the general public:
1) At Harvard Law School, former Yankees pitcher Jim Bouton will present on the topic of "Saving Our National Pastime: Baseball, Labor and the Politics of Stadium Construction." The event is being hosted by the Labor and Worklife Program at Harvard Law School, and will take place from 4:00 to 6:00 p.m. in Langdell Hall North. Last fall, Bouton published Foul Ball: My Life and Hard Times to Save an Old Ballpark. It should make for a very interesting discussion. For more information, please contact Jason Anastasopoulos of Harvard Law School.
2) At Mississippi College School of Law, Professor Todd Zywicki of George Mason University School of Law (and of the excellent Volokh Conspiracy) and I will have a discussion on the topic of "Obesity in America: The State's Right to Pass Laws Requiring the Restaurant Industry to Provide Nutritional Information to Consumers." The event is being hosted by the Federalist Society, and it will take place from 11:30 a.m. to 12:30 PM in Room 151.
Todd and I have separate law review articles on-point:
Posted By : Michael McCann
Michelle Kwan and the Risks of Marketing Olympians
Message posted on : 2006-02-14 - 06:04:00
Darren Rovell of ESPN has an engaging feature on how Coca-Cola and Visa have largely centered their Olympic advertising campaigns around figure skater Michelle Kwan, who withdrew from the Olympics a few days ago. (Rovell, "There Will be Some Awkward Moments for Coke, Visa," ESPN.com, 2/13/2006). Coca-Cola is especially affected by her decision, as aside from featuring her in several television advertisements (which will still be run in prominent time slots), Kwan's image is all over Coca-Cola's in-store promotions. Rovell describes the risk of marketing Olympic athletes:
The problem with marketing Olympians is that they come out of nowhere, and by the time they win a gold medal, they are forgotten, absorbed by the NBA playoffs or a horse making a run at the Triple Crown. With that in mind, it's easy to see why Kwan was the best marketing bet of the Olympics. People know her, she has that golden smile, and over the course of her career she has upheld a squeaky clean reputation.
Although I agree that it's a tad embarrassing to center an ad campaign around an Olympian who unexpectedly drops out before the games begin, I suspect Michelle Kwan may have received more attention--and far more favorable press--by dropping out than had she competed and not placed among the medal winners. And the same might true even if she had won the bronze or the silver. When she announced her decision to withdraw from the Olympics, it seemed as if she was on the cover of every sports page, the lead story on every television sports news show, and the most visible headline on every major sports website, and at least of the coverage that I actually read, she was portrayed in almost superhuman/ultra-courageous terms, similar to how we regard national heroes from centuries ago. In fact, the coverage was so overwhelming that I suspect some readers, and especially those interested in the Olympics, may have been wondering: What about all the other Olympians? Why are we focused on the one Olympian who isn't competing?
So maybe this will work out for Coca-Cola and Visa after-all. Certainly, Michele Kwan may be the most famous and admired U.S. Olympian who has never won a gold medal, and that would seem like a pretty good person to center an ad campaign around. Really, does anyone not like her? Talk about winning by losing!
Posted By : Michael McCann
Jury Sides with Angels in Name-Change Dispute
Message posted on : 2006-02-13 - 12:54:00
A jury has decided that the Angels did not violate their lease agreement with the city of Anaheim when they adopted the moniker "Los Angeles Angels of Anaheim." The deliberations seemed to turn on the meaning of the five-word requirement in the contract that the team name "include the name Anaheim therein." The nine jurors that voted in the team's favor said the language is clear on its face and not violated by the team's actions. A few jurors said that if the city wanted to ensure that Anaheim was the only locale in the team name, the contract should have said so. (Yoshino & McKibben, "Anaheim Strikes Out Against Angels," LA Times, 02/10/06; Goffard, "Key Word is 'Include' for Angel-Anaheim Jury," LA Times, 02/10/06; Law Blog, 02/10/06).
As the jury has spoken, the chance of a successful appeal seems remote. Certainly, the city's lawyers wish they could go back and put in the specific language. And I didn't hear the evidence presented, so perhaps that language was proposed and rejected during the negotiations. However, it seems that the Angels at the very least violated the spirit of the bargain -- in the environment in which the lease was negotiated, team names included one geographic location and one nickname. The city clearly wanted the team name to include Anaheim so that its constant mention would bring additional attention to the city. Under the current name, the team is known as "LA," not "Anaheim." The long name may satisfy the letter of the contract, but should contracts be read this literally?
Posted By : Greg
Hold the Spit, Please: Food and Beverage Security at Sporting Events
Message posted on : 2006-02-11 - 14:36:00
Ever go to a ballgame and buy a beverage, and then watch the server pour your drink while his/her back is turned? You probably don't have much to worry about--it's unlikely the server would do anything malicious, especially since most people aren't crazy, and in the unlikely event that particular server might be crazy, he/she is in your plain view.
But think about when you order something at a fast food restaurant, and particularly when you go through a drive-thru--and you have no idea what the server might be doing. Do you ever wonder what's going on, especially when it seems like they are taking a little bit too long and there aren't many customers around?
If you have these thoughts and share them with others, most would say that you are just being paranoid. But I suspect those persons don't live in Barnstable, Massachusetts, and I strongly suspect they haven't been to the Dunkin Donuts in Barnstable. Here's why: two employees of that fine establishment have been arrested for spitting in customers' coffee who ordered through the drive-through. There are also allegations that they urinated in customers' coffee. Their modus operandi was to add their own blend of seasoning and then shake-up the coffee so as to visually obscure the added substance. Both employees have been fired, but of greater concern, they face felony charges for distributing food intended or expected to cause injury. According to Chapter 270, Section 8A of the General Laws of Massachusetts (M.G.L), they face up to five years in prison.
Regardless of their punishment (and, absent a past criminal record, I suspect they don't spend a day in prison), let's hope they don't wind up working at Fenway Park or TD Banknorth Garden. It's bad enough that we need to remind employees to wash their own hands; now we need to remind them to not spit in customers' food. But maybe there's a rainbow at the end of this gleak-shower, at least for most sports fans: When you go to ballgames and sit in the cheap seats, you have to order food from vendors and concessionaires who are usually in your line of sight, whereas when you order menu food from those luxury box seats . . . you just never really know how that food is going to be "prepared"!
Posted By : Michael McCann
Sunday Hits
Message posted on : 2006-02-11 - 12:20:00
Guest Blogger David Frank, who co-hosts Sports Courts on Sporting News Radio with Scott Gilefsky and is News Editor of Massachusetts Lawyers Weekely, is quoted in a Boston Herald story on Neil Entwistle's apparent murder of his wife and 9-month baby daughter in Hopkinton Massachusetts (Entwistle then fled to Great Britan but will soon return to the United States to face murder charges). Aside from his expertise in sports law, David is also a former assistant district attorney, with extensive experience in criminal law, and he can thus shed light on the significance of Entwistle apparently being a big fan of Internet porn:
Attorney David Frank, a former prosecutor in Bristol and Suffolk counties, said including the sex issue in court papers will make it easier for prosecutors to bring it into the trial.
“When you have stuff like this, it helps solve one of the most difficult hurdles that faces these types of prosecutions, and that's getting inside the head of a defendant,� Frank said.
sfs
Posted By : Michael McCann
Kenyon Martin: Putting His Criminal Justice Degree to Work?
Message posted on : 2006-02-10 - 20:52:00
In May 2000, Kenyon Martin graduated from the University of Cincinnati with a Bachelor of Science degree in criminal justice. A month later, he was selected by the New Jersey Nets as the number one overall pick in the 2000 NBA Draft. According to the website for the University's Department of Criminal Justice, Martin studied the following while advancing in his degree program:
The four year Criminal Justice baccalaureate program is designed to provide students with an understanding of the criminal justice process, its agencies, personnel and historical foundations. The program emphasizes the key components of the criminal justice system: police, corrections, juvenile justice and judicial systems. The Bachelor of Science in Criminal Justice, which includes both classroom and field experience, prepares graduates for entry level positions in law enforcement, the courts, corrections and the juvenile justice system.
Among the classes Martin may have enrolled in were Crime Prevention (18 CJ 407), Managing Conflict and Assaulative Behavior (18 CJ 274), and Life-Course Criminology (18 CJ 404).
Unfortunately, however, "anger management" and "the drawbacks of vigilante justice" were not apparently offered, as in this past Wednesday's Nuggets home game against the Bulls, Martin is said to have ordered a "friend" to confront a heckling fan. Martin did not play in the game due to a knee injury. Here is what apparently happened:
During the third-quarter, a fan sitting two rows behind Martin yelled at him, "Suit up, you chump." All accounts indicate that the fan did not use any profanities. At that point, Martin is said to have stood up, pointed at the heckler, and then motioned to one of his friends to go confront the heckling fan. His friend then stood up and yelled at the heckler, "Shut your mouth before we take you outside and beat [you up]." He also apparently screamed at a Nuggets fan named Don Miller--who, along with his teenage son, happened to be sitting next to the heckler--calling him a "fat (expletive) white boy."
The rest of the story becomes unclear, but apparently more heated words were exchanged, and Martin's friend began to approach the heckler in a threatening manner before being restrained. Another report posits that, after the game, Martin and two friends sought out both the heckler and Miller in order to "shut them up":
"Kenyon Martin walks back out of the locker room, and he's with a guy in a Yankees hat and another guy, and he says, 'Ya'll just need to shut up.' He says, 'This guy called me a punk,' pointing to the [heckler]," Don Miller, an eye-witness, said. "I say, 'Mr. Martin, he didn't call you a punk, he called you a chump.' He said, 'You, shut up.' "
No violence occurred, but fans sitting near-by were worried that violence was about to erupt. The NBA is investigating the incident and, as of tonight, no police report has been filed. If any of this true, you can be sure that Kenyon Martin is looking at an enormous suspension, and, less likely, criminal assault charges and civil liability for assault.
But what has Kenyon Martin had to say about the incident? Well . . .
"I know the person, but I didn't direct
nobody to go into the stands. I was watching the game."
Hmm. "I didn't direct nobody." Aside from a less than convincing defense--he acknowledges knowing the guy who verbally assaulted the fan--Martin's "commentary" seems to suggest that English 101 wasn't an integral part of his criminal justice curriculum.
Gotta love that college degree for premier basketball players. They really are so much better off, aren't they?
Posted By : Michael McCann
Defending the NBA Dress Code
Message posted on : 2006-02-09 - 17:28:00
I have been an outspoken critic of the new NBA Dress code, and will even be publishing a law review article on it (and a few other issues). But I'd like to post an well-reasoned opposing view. My good friend Lindsey McDaniel is a high school basketball coach in Georgia, and here is his take:
The new NBA dress code was needed yesterday. We have gone from the images of a well-dressed Michael Jordan in his Armani suits to the images of guys who have slaughtered the "moral dress code." Players such as Allen Iverson with his "Do-rags" and baggy clothes gives the impression to the younger generation that poor attire is socially acceptable. It isn't, and they are worse off thinking that it is.
I say all this as an African-American male. I just think there is a time and place for this type of appearance, such as when you are off the clock. Besides, the NBA is a business, and just because you make millions of dollars playing a child's game doesn't mean that you can circumvent the rules, especially when someone else is paying your salary--and that person makes a lot more money than you.
Also remember, the dress code for the NBA is just like a dress code for any other company or business, and if you want to remain a part of an organization, then you must follow the rules. It's as simple as that. If you reflect back to 1996, when Allen Iverson was a sophomore at Georgetown University (and, by coincidence, a classmate of Michael McCann). He was wondering if he would be drafted and at what point in the draft would he be selected. During this time, he would have DONE anything to guarantee a shot at the NBA. So, hypothetically, if David Stern had approached him and said, "Allen, we can guarantee you a great contract with the Philadelphia Sixers, and it will pay you guaranteed millions of dollars for several years, but please read the bottom line of the contract before you sign, as it states: 'You must agree to this dress code policy for the duration of your career.'" I bet the house that.Iverson would have signed that contract before Stern got the last word out of his mouth. Not once would he have said,"Man I don't know, because I like to be comfortable." So at that point it was either the Sixers in the NBA or working from 9 - 6 at the local grocery store. Do you have any doubt as to what he would have done?
So for all these big-time, 7-digit salary NBA players who have become "comfortable," and feel that they are above the rules, I ask you to do this: think back to the days when you would have done anything to play in the NBA. Think back to your first training camp when you were a rookie and you actually respected the NBA for giving you an opportunity to play against the best basketball players in the world and for an enormous amount of money. And then think about all those guys who are on the outside looking in, and how they are saying, "man, if all they want me to do is wear a suit and look respectful for their organization, and they are going to pay me millions of dollars to play the sport I love, I would do that in a heart beat." I ask you to think about those guys, just for a moment, before the next time you complain about "being comfortable." You might just re-think what you are about to say.
It's time to look at the NBA as an organization that can set it's own rules, rather than focusing on a bunch of individuals . . . who's only concern and care is about being "comfortable."
Lindsey McDaniel
Why do we Love Rookie Players?
Message posted on : 2006-02-09 - 16:51:00
We all love new draft picks. I had these thoughts in another forum but thought they might be applicable here as well:
A social psychologist considering why rookies are preferred, and veterans disfavored, might identify the presence of "optimism bias" with young players: even though the vast majority of them won't pan out, or won't become the idealized players we project them to become, we nevertheless project that the vast majority will become good or great NBA players--and we do this every year, with different groups of young players (Celtics fans, for instance, may remember future stars named J.R Bremer, Kedrick Brown, and Brandon Hunter), and this happens with the fan bases of every team. I suspect that is because we want them to become good, and that desire taints how we project their careers. It's probably why a lot of people genuinely thought that Marcus Banks could develop into a reasonable facsimile of Baron Davis, or why Moses Malone's name has been tossed around when people talk about Al Jefferson's future, or why we now see comments about Kendrick Perkins having some Ben Wallace in him--the best-case scenarios seem far more plausible than they actually are.
But as time goes on, and as the player ages, the difference between our projection and reality becomes clearer--at this point in his career, there is less time for Raef Lafrentz to become a better player than he actually is, so we no longer expect great things of him, and thus he seems less appealing of a player.
So when a team is full of young players, it is easy to cling to optimistic platitudes (e.g., "we'll be great once these guys turn the corner") or overly-favorable comparisons because those platitudes and comparisons appear to lend credence to how we assess those players.
sfd
Posted By : Michael McCann
NBA Dress Code Discussion Continues
Message posted on : 2006-02-08 - 19:15:00
Trey Popp of the Philadelphia City Beat has a story on the recent symposium at the University of Pennsylvania School of Law on the NBA and its collective-bargaining with NBA players. (Popp, "Dress Blues," Philadelphia City Beat, Feb. 2-8, 2006).
I am pleased that at least one person thought that I was well-dressed at the syompsium:
A pair of well-dressed, high-profile lawyers came to Philadelphia to take Iverson's argument a step further at a Penn symposium on sports law. Michael McCann, an assistant professor at the Mississippi College School of Law, maintained that off-court threads aren't really the main issue. "There is an apparent pattern among NBA officials suggesting that they want to transfer autonomy from players to the league," he said. Owners have clamped down on certain hip-hop symbols in an effort to court increasingly conservative sponsors and appeal to a broader audience. Yet when the league isn't targeting Iverson's hip-hop generation for dress-code discipline, they've been exploiting it to line its pockets. The league's officially licensed video games are a case in point, McCann contends. NBA Ballers advertises itself as a peek into the "'bling-bling' lifestyle of NBA superstars," complete with "chromed-out cars" and "tatts." NBA 2K6 goes further, featuring rap artists like Method Man and ?uestlove as playable characters.
Alan Milstein observed that the league's attempt to impose conformity off the court was offensive. "When Allen sees little boys in bling-bling trying to look like him, he doesn't think he's corrupting them . . . he thinks it's great that the game can lead people to embrace other cultures."
For related information, please see:
Michael A. McCann & Joseph S. Rosen,
Michael A. McCann,
A Webcast of My talk at Duke Law School (and subsequent critique by Duke Law Professors Paul Haagen and Barak Richman) on high school players and the NBA Draft (February 6, 2006).
Posted By : Michael McCann
When Sports and Law Don't Mix -- Judge Apologizes for Super Bowl Cheer
Message posted on : 2006-02-07 - 15:35:00
Prior to sentencing the defendant in a manslaughter case last week, a Washington state court judge decided to show her support for the home team:As Judge Beverly G. Grant took the bench Friday, she asked everyone in court to say "Go Seahawks." Dissatisfied with the low volume of the response, she told them to try again.
Only then did she hear statements from prosecutors, defense lawyers and relatives of the slain Tino Patricelli, as well as an apology from defendant Steve Keo Teang, before resentencing Teang to 13 1/2 years in prison.
(AP). Apparently, not everyone (including the victim's family, who were in the courtroom) appreciated the little cheer. Today, Judge Grant apologized.
No word on whether she will lead any "We Were Robbed!" cheers this week. Seems like it would be especially appropriate for a B&E case.
Posted By : Greg
Essay on Legality of NBA and NFL Age Limits in Case Western Reserve Law Review
Message posted on : 2006-02-07 - 14:18:00
Boston sports agent (and Boston College Law adjunct professor of sports and entertainment law) Joe Rosen and I have just posted on the Social Science Research Network our essay Legality of Age Restrictions in the NBA and the NFL, 56 Case Western Reserve Law Review __ (forthcoming, 2006). At the conclusion of the essay is a transcript of our panel discussion from last fall's symposium at the Case School of Law on Age Eligibility and Pro Sports. The panel also included Alan Milstein. We had a lively discussion, and it is worth checking out.
Here is an abstract from our essay:
This essay examines age eligibility rules in the National Football League (“NFL�) and the National Basketball Association (“NBA�), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation.
We hope you
take a look and download our essay. You need an SSRN account to download it, but such an account is free, and I strongly recommend you get one, as it provides you with access to thousands of academic papers and publications.
Not being Randy Livingston: The Jonathan Bender Story
Message posted on : 2006-02-06 - 07:42:00
At the young age of 25, Indiana Pacers forward Jonathan Bender has decided to retire from NBA due to chronic knee problems. Bender has suffered knee problems since before entering the NBA out of high school in 1999 (he selected 5th overall in the 1999 NBA Draft). It is thought that his knee problems stem a growth spurt while he was a teenager, as it moved his knee out of alignment and also caused slippage of the hamstring. The problem gradually worsened over his 7-year NBA career, during which time he played in only 271 regular season and playoff games.
Obviously, this is a sad story. Bender may have had the talent to become an NBA star, but because of chronic knee problems, we'll never know. This story has special meaning to me, as Bender is from Mississippi, where I'm a law professor and where many of my students are from.
But there is another way of looking at this story: by skipping college, Bender attracted the interest of NBA teams before his chronic knee problems became apparent to NBA scouts. As a result, he was able embark on a 7-year NBA career, during which time he earned (according to my calculations) about $29.5 million. Had he matriculated to Mississippi State, and watched his knee problems worsen there, he would have certainly had a shorter NBA career, and he may have never had an NBA career. In other words, had he taken the "safe" route and attended college, he may have never earned a dollar playing basketball, let alone $29.5 million. And yet now, if he wants, he can attend Mississippi State and take all of the courses he wants--and be able to focus on those courses rather than on basketball (something which would have been impossible had he matriculated to Mississippi State in 1999). And of course, if he does go back to school, he'll also having millions of dollars in hand (kind of like the Olson Twins at NYU).
Bender's story is quite dissimilar from that of Randy Livingston, who, as some of you may remember, was the nation's top high school player in 1993. Had he declared for the 1993 NBA Draft, Livingston would have been a sure lottery pick. Now, to be fair, 1993 was PKG ("Pre-Kevin-Garnett"), meaning for Livingston to declare would have likely been perceived as more "risky" than if it had been a few years later, particularly since he was a guard and since the last player to do so was Bill Willoughby in 1975. But Livingston thought seriously about declaring. And then he decided to take the safe route and attend Louisiana State University, where the Louisiana-native would play before his family and friends.
Unfortunately, before his first practice at LSU, Livingston tore the anterior cruciate ligament in his right knee, a serious injury that would require reconstructive knee surgery. He would never be the same, and his knee problems would linger. But even worse, had Livingston suffered the exact same injury while playing for an NBA team, he would have still received a guaranteed contract worth millions of dollars. Livingston would eventually play in the NBA, but as a journeyman, bouncing from 10-day contract to 10-day contract. Indeed, most of his pro career has been spent in the minors, earning
minor-league salaries.
As disappointing a time as this must be for Jonathan Bender, I suspect a part of him is grateful that he jumped to the NBA in 1999. In just seven years, he has earned far more money than 99.99999% of the population will ever earn, and other than a knee not good enough to play pro basketball, he's in good health. And back in Picayune, Mississippi, I suspect Mrs. Bender and the rest of the Bender family are grateful as well.
But I wonder what thoughts crossed Randy Livingston's mind when he saw that Jonathan Bender retired? We'll never know, but I suspect it was something along the lines of, "Take it from me: It's not that bad being Jonathan Bender."
Posted By : Michael McCann
Thanks To Our Guests
Message posted on : 2006-02-06 - 00:01:00
We would like to take a moment to thank all of our guest bloggers. Over the past three months, we have featured authors who represent a range of backgrounds and professions. The blog has certainly benefited from all of the well-written posts and innovative topics. We appreciate all of the time and effort contributed by the guests.
It's back to just the two of us for the time being, but more guests will be appearing soon.
And, as always, a big thank you to everyone for reading and commenting. The conversations in the comments are often insightful and are truly the best part of the blog.
--Greg and Mike
Posted By : Greg
Tip of the E-Iceberg?
Message posted on : 2006-02-05 - 22:49:00
The New York Times is reporting that America Online and Yahoo will begin giving preferential treatment to the email messages of companies that pay 1/4 cent per message sent. (Hansell, "Postage Is Due for Companies Sending E-Mail," NY Times, 02/05/06). The preferential treatment includes being delivered straight to the recipient's Inbox, without having to pass through the gauntlet of spam filters that often divert legitimate messages.
The Internet was founded on a neutrality principle -- every packet of data treated identically and able to be read by any other system on the network. As the Net becomes bigger and bigger business, this principle has been harder to realize.
Are we heading towards an Internet where paid-for emails arrive instantaneously, but free emails take a few hours? Where you can only send attachments if you pay a small fee? Where certain individuals can pay to have their information/data routed more quickly? This certainly would violate the original spirit of the Internet, but in a world filled with spam, viruses, and truly, a great deal of junk on the web, is creating some form of market such a bad idea?
Posted By : Greg
Super Bowl Thoughts
Message posted on : 2006-02-05 - 22:43:00
I thought this year's Super Bowl was an average game overall, with a few big moments. But can someone tell me what was going on with Seattle's play-calling at the end of the halves? They had two weeks to prepare -- was that not enough to practice a hurry up offense? Perhaps they were too busy posing with the Super Bowl trophy and practicing saying "I'm going to Disney World!"
My vote for best commercial -- the guys in the apartment worshiping the "Magic Fridge." The worst? Jay Mohr as the agent for Diet Pepsi.
UPDATE: You can watch all of the commercials here.
Posted By : Greg
Super Bowl XL and Stadium Security
Message posted on : 2006-02-04 - 17:21:00
With about 24 hours to go before Super Bowl XL, let's briefly consider a topic that probably won't generate much fanfare: stadium security, and how well American pro sports leagues have ensured fan safety.
This topic comes to mind after reading how earlier this morning, 73 Filipinos were trampled to death in a Manila stadium, as thousands were trying to enter a popular TV show where prizes are awarded to audience members. Most of those trampled were elderly women. It is unclear why the stampede started. One report, now apparently dismissed, is that a person yelled "bomb"; another report, also in doubt, suggests that a railing collapsed, precipitating mass panic. Regardless of cause, there was apparently mass panic in the Manila stadium, prompting a spontaneous stampede, and security was not able to prevent it or suppress it before 73 people died and 353 were injured.
I suspect we should be grateful that these mass tragedies don't happen in our professional sporting or entertainment venues, in spite of the tens of thousands of people typically attending them and the persistent threat of mass panic inducible by so many things. Perhaps we have been more fortunate than good, but I suspect it also reflects how seriously teams and leagues take security. Take the Detroit "melee" last year--and do notice how so many observers described it as a "melee" even though no one died or was seriously hurt: it was clearly terrible, avoidable, and embarrassing and yet there were no deaths, no serious injuries, no stampedes. Really, after seeing what happened in the Phillipines today, we might be able to look at the Detroit "melee" and think: security did a good job.
Let's hope we continue to be so fortunate (or good, or both).
Related Post: Greg, Pat Downs at Sports Arenas: Necessary Precaution or Unconstitutional Search?, 10/26/2006
Posted By : Michael McCann
Reciprocal Bootlegging???
Message posted on : 2006-02-03 - 14:26:00
Damon Jones, back up point guard for the Cleveland Cavaliers, signed a sneaker deal with China's largest sportswear manufacturer. The shoes will only be available for purchase in China.
First, let me say that Damon Jones obviously has the best agent in all of sports. Jones is a marginal player who made a ton of three pointers last night strictly because he was playing on the perimeter while Shaquille O'neal drew Jones' defender inside and the rotation concentrated on Dwyane Wade. His agent parlayed that performance into several summer appearances on TV, a new longterm contract with the Cavaliers, and now the first American player to have a Chinese shoe contract. Wow!!! If I ever go back on the law teaching market, I want that guy to negotiate for me.
Second, I wonder if American merchants who've been lobbying Congress to do more to stop Chinese counterfeiting of American goods will ask Congress for an exemption from our own counterfeiting law so they can sell cheap versions of Jones' sneaker on New York's Canal St? After Jones' performance the first half of this season, I'm not sure a dealer could even get a bootleg price for them.
"Bobo's, they cost a $1.99...."
Andre Smith
Posted By : SmittyBanton
113 Points
Message posted on : 2006-02-03 - 09:27:00
Adrian Wojnarowski has an excellent column on the absurdity, and bad sportsmanship, of allowing a high school player to score 113 points on a clearly inferior team. As he points out, the reason given for allowing the outburst -- that the player was "bored," is ridiculous and exactly the opposite of what high school coaches should be teaching."We play the schedule we're dealt and some of those teams are weak," Bergtraum High School coach Ed Grezinsky told the New York Post. "But I didn't think I should punish Epiphanny for that."
Punish her?
It isn't punishment to teach a great young basketball talent that the games aren't played to keep her interested, that the rules of sportsmanship and manners aren't eliminated for the sheer reason that she could score every time she touched the ball. So, the coach let her go on a night when she was determined to chase Kobe Bryant's 81 points and ended up passing Wilt Chamberlain's 100 with room to spare.
With 'role models' like this out there, is it any wonder that many superstar young athletes believe that the world revolves around them? I recommend the whole article.
Posted By : Greg
Players Unions Need to Fix the Agent Business
Message posted on : 2006-02-02 - 16:21:00
In the Sports Law Blog comments this week, Anonymous mentioned the temporary restraining order that IMG received this week to prevent a former IMG employee from soliciting IMG clients to leave the agency for his newly-formed sports marketing business. Two days ago, I posted a story about the NFLPA's pursuit of agent David Dunn for violating agent regulations that involved similar behavior. Next month, I will be participating in a symposium at Willamette University College of Law with other distinguished sports law experts (including Michael McCann!). The symposium is entitled, "The Future of Sports Law," and I will be speaking about the regulation of sports agents.
In my article entitled, "Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representative of the Players," which is being published in the Willamette Law Review, I discuss how client solicitation by agents is harmful in multiple ways to the players, the teams and the leagues. I am referring to the "acceptable" solicitation in the player representation business -- commonly known as "recruiting". The player-agent relationship is a fiduciary relationship, and in such a relationship (i.e. lawyer-client relationship) solicitation is considered unethical and unlawful because of the potential for undue influence, intimidation and overreaching. So why is client solicitation acceptable? I also discuss how the "babysitting" role that agents play is harmful to players because it fosters dependency and irresponsibility.
As players' salaries keep increasing, so do the agents' fees because they are paid on a commission basis. Simply, the agent's fee far exceeds the legitimate legal work and negotiation involved with a player contract, and the players are essentially funding the solicitation expenses incurred by agents. With such a huge commission at stake, agents have an incentive to invest an incredible amount of time and resources in client solicitation. And many of the reasons or justifications typically cited for paying a fee on a commission basis in other industries are not applicable to the player-agent relationship.
In my article, I advocate that the players associations should consider hiring agents as full-time salaried employees and give each player the option to retain a union agent as his representative in club negotiations. This could alleviate many of the current problems associated with the agent business, including solicitation, agent incompetence and conflicts of interest. The union agents would only represent the players in their individual negotiations with the clubs, and would not work on behalf of the union in collective bargaining negotiations. In my opinion, there are many players that would take advantage of this option if it were available. Oh, and if the unions needs a model for it, they can look at the the union for British soccer players, the English Professional Footballers Association.
I welcome your comments.
Posted By : Rick Karcher
Teacher Violates First Amendment Rights of Young Broncos Fan
Message posted on : 2006-02-02 - 13:48:00
Good morning. My thanks to Mike McCann and this week's primary guest blogger, my friend and colleague Andre Smith for allowing me to participate in the discussion. I have been thinking for a while about blogging as a medium and as a scholarly exercise and about whether or not to take the plunge. I can think of this as my tryout, my September Cup of Coffee in the Show.
Finding an initial topic was easy when this story broke. Ridiculed Over Broncos Jersey. Joshua Vannoy, a student at Big Beaver Falls Area Senior High School (in Pennsylvania, outside Pittsburgh) who wore a John Elway/Number 7 Denver Broncos jersey to school the Friday before the Broncos played the Steelers in the AFC Championship Game (which Pittsburgh one). In an ethnicity class, teacher John Kelly made Vannoy sit on the floor, in the middle of a circle of desks, to take a quiz in, during which other students (at Kelly's suggestion) threw wadded-up paper at “the Broncos fan.� Kelly later claimed he was trying to teach a lesson about ethnic hatred and how it feels to be on the receiving end. Tung Yin quotes the article at length.
Some of my recent work has focused on the link between sports and free expression and the constitutional protection for what we might call “sport speech� or “cheering speech.� In a forthcoming piece, Wasserman on Fan Speech, I discuss what fans can and cannot say in the stands during games, arguing that the category of protecting cheering speech is extremely broad at the game. The Vannoy situation exemplifies a different aspect of cheering speech—the conversation about sports that occurs outside the confines of the game and that is similarly entitled to protection.
It is easy to chalk the case up to being about the teacher “taking sports WAY too serious.� And much of the media reportage has viewed this as a “lighter-side of the news� story; on ESPN Radio's “Mike and Mike in the Morning,� it was reported as a fun, not-too-serious tale for a segment called “News of the Weird.�
But, as is often the case with sports speech, the lightness of the sport connection masks the seriousness of the underlying issue. The First Amendment violation would be obvious if we imagine a teacher doing exactly the same thing because a student wore, for example, a Boy Scout uniform or a t-shirt reading “Kerry for President� or “National Rifle Association� or “Proud Member of Local 242.� Or if he wore a black armband to protest the war. It would fly even less as a real-life lesson in how it feels to be discriminated against. It is true that lower courts give schools a great deal of (too much, I would suggest) leeway in regulating the t-shirts and clothing that students are able to wear in order to prevent “disruption� of school activities. But singling out a student for organized in-class abuse at the hands of his teacher and classmates because he espoused such messages goes far beyond the school's authority.
Obviously, allegiance to the Denver Broncos (or John Elway) is not political in the same way as these other messages. But the freedom of speech generally is understood to protect more than the purely political; on libertarian-oriented individual liberty/autonomy and self-realization or self-actualization theories, it protects expression on the entire range of matters that define us as individuals, as fully formed humans ready and able to make and carry out life-affecting choices, as members of society, and as members of smaller communities within society. Certainly sports allegiance defines us and our personhood in this way, especially 16-year-old high-school juniors. Joshua Vannoy is a Denver Broncos fan and he decided to announce his membership in that community at
an appropriate time—when everyone around him was announcing their membership in a rival community of Pittsburgh Steelers fans. Indeed, twisted as it was, Kelly's actions themselves were an expression of his own allegiance.
For expressing that allegiance, Vannoy was subject to abuse (no matter how minor the abuse might seem—and minds may differ as to whether the shame and humiliation Vannoy claims is a genuine harm) at the hands of a government official. The nature of any harm he suffered to one side (a question that goes to damages, if he decides to bring suit), that sounds like precisely what the freedom of speech is supposed to prohibit and to protect individuals against.
For better or worse (I would suggest for the better), sport helps define modern American society. Perhaps because we are a society in which too many members have too much recreation time and too much disposable income. But perhaps, as sociologists and anthropologists suggest, sports fandom and team allegiance provides individuals access to an important and meaningful community, one that defines and benefits its members. The association between fan and team allows the fan to take a personal stake in the team's success—personally experiencing the “thrill of victory� and the “agony of defeat,� the agony and the ecstasy of the competition. Sports fandom brings, the late A. Bartlett Giammati wrote, however briefly, a happiness, an absence of care and an escape. Or it brings self-imposed misery (I say this as a member of Cubs Nation and an alumnus of Northwestern University—Go ‘Cats).
That being so, it should not be surprising that fans want to express that allegiance and that passion, verbally and symbolically. And just as membership in the community of fans is a matter of import and worthy of protection, so too is expression of that membership.
Howard Wasserman, Associate Professor
Florida International University College of Law
Posted By : SmittyBanton
Three Eyed Fish in the St. Louis Cardinals' Parking Lot???
Message posted on : 2006-02-02 - 11:39:00
The AP reports that Greenwich Insurance Co. is suing the St. Louis Cardinals in an attempt to rescind their contract relating to the construction of new Busch Stadium (is that still the name?). The Cardinals say they had to spend $14million cleaning up petroleum and other landfill type stuff from the site of what is now a bus parking lot, and that Greenwich should reimburse them. Greenwich claims that the Cardinals misrepresented their lack of knowledge as to the existence of the waste when they applied for the insurance. All of that is fine, but what the rest of us want to know is, 'does the beer taste funny?'
Posted By : SmittyBanton
Patrick Dennehy's Old Coach Gets New Job
Message posted on : 2006-02-01 - 16:08:00
The Dakota Wizards of the CBA just hired former Baylor coach David Bliss. Bliss you might recall was fired from Baylor after it was discovered that during the investigation of Patrick Dennehy's murder at the hands of another player Bliss encouraged his students to tell investigators that Patrick Dennehy was a drug dealer.
How does this man get another coaching job? I guess I'm thankful it's not in academia. And why is L'il Kim in jail, but Bliss was never prosecuted?
Posted By : SmittyBanton
SuperBowl Players Stuck Up in Michigan For $200K
Message posted on : 2006-02-01 - 11:18:00
The state of Michigan and city of Detroit, both of whom are in desperate need for revenue, are taxing the participants in this Sunday's SuperBowl. Because they work in the state on that day, the players have sufficient contact with the state and are thus subject to income taxes. Additionally, they increase the rate for nonresident athletes, the "jock tax".
They are neither the first nor the only. The word is, California first imposed this type of tax in the early 90s, targeting the Chicago Bulls. Illinois reciprocated in an attempt not to raise revenue but to "protect our athletes". Of the 24 states that have major professional league sports teams, 20 of them impose an extra tax on athletes, with rates almost as high as 10%. Michigan's rate is actually among the lowest. Washington state does not have an income tax and no jock tax. But that may change according to a Washingtonian legislator.
According to the Tax Foundation, "The principles of sound tax policy dictate that taxes be neutral, fair and levied on the broadest base possible. A tax, such as the jock tax, that is levied on just one group of people violates all these tenets. " Also, in some states the statutory language permits the extension of this tax to others for whom it was arguably not intended: the low- to mid- salaried cameraman, etc. It is even being extended into other professions, such as (gasp!) nonresident lawyering.If they come after the lawyers, we'll finally see how these taxes stand up against the Privilegs and Immunities Clause. (I have no idea whether this challenge has already been undertaken.)
According to FreedomWorks, here are some other "ridiculous" taxes:
10. The Amusement Tax (Most States)
9. Fountain Soda Drink Tax (Illinois)
8. Fur Tax (Minnesota)
7. Take-Out Tax (Chicago, Washington, D.C.)
6. Blueberry Tax (Maine)
5. Playing Card Tax (Alabama)
4. Sparkler and Novelties Tax (West Virginia)
3. Jock Tax (Many States)
2. Facial Hair Tax (Massachusetts)
1. Illegal Drug Tax (Alabama, North Carolina, Nevada)
Andre Smith
(Much info for this post was gathered at the Tax Professor Blog, http://taxprof.typepad.com)
Posted By : SmittyBanton
Duke Law School Symposium on Age Restrictions in Professional Sports
Message posted on : 2006-02-01 - 06:10:00
I will be speaking at Duke Law School tomorrow (Thursday, February 2) from 12:15 PM to 1:15 PM. Here is the official symposium description:
Age Restrictions in Professional Sports: From Maurice Clarret to LeBron James Thursday, February 2, 2006. Time: 12:15 p.m. - 1:15 p.m. - Location: Room 3041. Panel discussion of legal issues associated with age restrictions in professional sports. The panel will focus on a recent paper written by Professor Michael McCann of Mississippi College School of Law entitled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft." Professor McCann served as a member of Maurice Clarett's legal team in his lawsuit against the NFL. The panel will include Professor McCann, Professor Barack Richman, and Professor Paul Haagen. The symposium is being hosted by the Duke Sports and Entertainment Law Society.
The symposium will be webcast live at this link [note: this link is archived and provides the webcast at any time]. I hope you get a chance to watch. For related information, please check out my law review articles in the Virginia Sports and Entertainment Law Journal, Brooklyn Law Review, and the University of Pennsylvania Journal of Labor and Employment Law.
Also, special thanks to Duke Law student Michael Sopko for his excellent work in putting this event together. Mike is my former research assistant and was instrumental in my law review article on high school players and the NBA Draft.
Posted By : Michael McCann
Illinois Appeals NCAA Mascot Ban
Message posted on : 2006-01-31 - 21:22:00
The University of Illinois has filed a second appeal challenging a decision of the NCAA that would require the school to drop its Chief Illiniwek athletic mascot and logo before it could host any postseason competition. (ESPN) Although the NCAA ruling allows the university to keep its Illini and Fighting Illini nicknames, it ruled that Chief Illiniwek is "hostile and abusive."
I have covered this topic a great deal, usually opposing these types of sanctions (5/25/05). That being said, Chief Illiniwek does seem like a bit of a caricature. And the school gets to keep its nickname -- it just needs to change its mascot. I understand there is tradition at stake, but many teams change logos just for marketing purposes. 
On the other hand, there seems to be a great deal of discrepancy in the NCAA policy. "Fighting Illini" is ok. But the NCAA has penalized North Dakota for its nickname -- "Fighting Sioux." And what about the "Fighting Irish," with an arguably far more-offensive caricature mascot. How is that at all different? Is it that most Irish are not offended by the nickname? Well, neither are most Native Americans (9/28/04). Seems like a double standard to me.
Posted By : Greg
Coretta Scott King's Death and Respectful Racial Competition
Message posted on : 2006-01-31 - 09:47:00
Since Coretta Scott King died this morning, it's hard for me to concentrate on sports at the moment. I was going to write something about there actually being “sports law�, which would include the standards of review for overturning referee calls, deductions regarding the arbitrariness or due process in league suspensions, and other private law stuff. But all that seems a bit trivial at the moment. I'm feeling a need to relate Ms. King's death to another, realer game: political competition.
In The Tournament of Races, the team called white people has a significant lead in each major category of human activity: education, entertainment, economics, labor, law, politics, sex, religion, and war. This is what I believe is a benign conception of white supremacy, (as opposed to the conception of hooded warriors who terrorize as the only white supremacists). In some of those areas of activity, entertainment and politics more so than economics and war, white peoples' lead has diminished. The lead began shrinking when slavery ended, reduced further in the 50s thanks to Brown v. Board of Education, Rosa Parks and Coretta's husband, Martin Luther King, and others, and reduced further still in the 60s and 70s with the introduction of the Civil Rights Acts, school desegregation and Affirmative Action.
Affirmative Action was the last straw. This was and is seen as a direct threat to white supremacy. White people had to call a timeout. After instituting a new general manager named Reagan, white people began battling back, calling Affirmative Action reverse racism, and pleading with the country to battle the forces of discrimination, not the forces that uphold white supremacy.
Then OJ got off. If a big black buck of dude can kill a white woman and get away with it, then white peoples' supremacy must have ended, or at least the other teams are close enough so that white people take the car off cruise control and compete with vigor again. In comes Gingrich's Contract with America, the Republican Congress, Karl Rove (especially Karl Rove), and now Bush and the boys.
Now the Supreme Court is really up for grabs. It is already slightly right of center, which probably accurately reflects an aggregated America. Rehnquist was a foe of governmental attempts to level the playing field. O'Connor was not a huge fan, but recognized that when one team wins all the time the game disintegrates, and in the political game disintegration is not pleasant. Samuel Alito, the new nominee, like John Roberts less than a year before him, are of the mind that the playing field is level enough to allow full blown racial competition. Blacks and other minorities vehemently disagree. The playing field is tilted and we'd like to switch at halftime.
Whether there is or is not a level playing field is not really where I've been going with this. Tavis Smiley pointed out this morning that the day of Rosa Parks funeral, Bush laid a wreath then nominated Samuel Alito. Then, on the day Coretta Scott King dies, senators will issue statements praising her then turn around and confirm Alito. This despite a Zogby poll claiming that 100% of black people oppose Alito's nomination.
This certifies in my mind that the white team is back in full effect. And that's cool. All I ask is that we keep the competition respectful this time, same rules for everybody and no chummying up with the ref. And most importantly, despite all praise of bad sportsmanship on ESPN and everywhere else, just remember, when you're up by a lot, there's no need to rub the losing team's face in it. It'll just start a fight.
Andre Smith
Posted By : SmittyBanton
Sports Agent Finds Himself Caught Between A Rock and A Hard Place
Message posted on : 2006-01-31 - 05:36:00
Liz Mullen of Street & Smith's Sports Business Journal does an excellent job of reporting on the latest labor and agent news -- especially when it comes to digging up the dirt in the sports agent business. In her column this week, "NFLPA hasn't given up on disciplining Dunn," she discusses the current situation of agent David Dunn, who was suspended by the NFLPA in 2003 for two years based upon testimony given by NFL players at a trial in 2002 in which a jury found that Dunn unfairly competed against his former partner, Leigh Steinberg. Dunn then filed for personal Chapter 11 bankruptcy, which put a hold on all administrative actions against him, including the NFLPA two-year suspension. Last spring, the jury verdict was reversed on appeal, but the NFLPA still wants to suspend or decertify Dunn because the reversal was based upon technicalities, including jury instruction errors.
At the 2002 trial, there was testimony from an NFL player that Dunn had solicited him to fire Steinberg and join Dunn at Dunn's new agency, Athletes First, which is a blatant violation of the NFLPA agent regulations. Also, a former NFL player testified: 1) that Athletes First never told him that Steinberg had filed a grievance over fees the former player owed Steinberg; and 2) that he did not know that Athletes First had answered the grievance on his behalf, denying he owed the fees.
Next month, the NFLPA will argue in federal court that Dunn's certification should not be subject to bankruptcy protection. According to NFLPA counsel Lisa Fenning,
“If we win, it means a ruling by the district court that his [NFLPA
certification] is outside the bankruptcy and can be terminated by the
NFLPA. The NFLPA would certainly terminate it if David Dunn continued to refuse to submit to the disciplinary process.�
Mullen notes that even if the NFLPA loses its motion, Dunn may still be forced out of bankruptcy protection and into the union's disciplinary procedures because he has a February 15 deadline to propose a financial reorganization plan and an April deadline to confirm that plan.
Now, you might think that a bankrupt agent that is on the verge of being heavily sanctioned (even decertified) for NFLPA rule violations would have some difficulty obtaining clients? Apparently not. Dunn currently represents about eight of this year's draft prospects, and about 50 NFL players, including Seahawks quarterback Matt Hasselbeck and Broncos quarterback Jake Plummer. And Reggie Bush and Matt Leinart reportedly gave strong consideration to having Dunn represent them.
More to come from me later this week on the sports agent business....
Posted By : Rick Karcher
Doesn't Pay to Be Honest In Sports
Message posted on : 2006-01-30 - 14:31:00
Ron Artest and Terrell Owens and others believe they are being paid to play their sport, when the media and team officials think they are paying them to play the 'game'. Neither Artest nor Owens will play certain parts of the game. The part they hate most is lying. According to team officials, the media, and most of the sports watching public, athletes, well paid or not, are to follow an unwritten code that mandates lying if it means that your team or teammate or league or sport will be dishonored by your honest opinion. The only exception to this rule is that a player can dishonor other players whom the media or sport officials have labeled as 'problematic'. To avoid this, athletes could refuse to talk to the media, and risk their reputations that way and at the same time get fined by their respective leagues.
What does this have to do with Ron Artest? Artest did not attempt to scuttle the Indiana-Sacramento deal, or at least did not do so with any malice. The Kings, doing their due diligence, asked the Artest if he would be happy playing for the Kings. Artest being Queensbridge through and through responded honestly, that he would not. If being stuck in the middle of Indiana is a problem for Artest, and I am 110% sure that it is, going out to cowtown Sacramento is not a pleasant idea either. The problem is, he honestly expressed how every non-cowtown-wanting-to-go-to player in the league feels.
The Sacramento Kings, accepting the integrity of Artest's statements, rightly and rightfully declined to add on a player who would be unhappy in their town. Good for them, good for Ron, not good for the Pacers, and not good for hegemonic authority over athletes. For that, he is a trouble maker again. Of course the trade went through, but the media portrayal of Ron Artest was clear.
Ask yourself, "what did Terrell Owens say that he didn't honestly believe?"
Andre Smith
Posted By : SmittyBanton
Performance-Enhancing Drug or Air Conditioning?
Message posted on : 2006-01-30 - 10:52:00
Saturday's edition of the Wall Street Journal had a front-page article that caught my eye -- a piece on the Finnish cross-country team and the use of "alpine cottages." (Newman, "Fake Mountain Air Gives Some Skiers Level Chance for Gold," WSJ, 01/28/06-subscription only). In cross-country skiing, a granddaddy of aerobic endurance sports, there is no such thing as a level playing field. Because mountain air boosts energy-generating red blood cells, mountainous countries like Norway and Sweden have a leg up on the Finlands of the world that are mountain-deprived.
Several years ago, a Finnish scientist invented a way to give his country an even chance: a mechanical altitude simulator called the "alpine cottage."
***
"In Finland we have no mountains," says Prof. [Heikki] Rusko, a trim 62-year-old who works here in Jyväskylä, 170 miles north of Helsinki, at the Finnish research institute for Olympic sports. "Why shouldn't we have the same chances as countries that do?"
The alpine cottage is Prof. Rusko's mountain-moving device. It can take the form of a sealed-off apartment or just a duct-taped tent. Added nitrogen changes the mix of the air inside, reducing oxygen content while leaving pressure unchanged. The cottage lets low-country athletes live in simulated chalets, making extra red blood cells as they sleep.
But not everyone thinks these cottages are a good idea, or even within the spirit of competition. In Italy, where the Olympics are being held next month, the cottages are illegal. And a number of people thinks that the cottages are no different than the use of a performance-enhancing drug that can have the same effect on red blood cells.
But Prof. Rusko disagrees, saying that the more appropriate analogy is to the use of air-conditioning in a hot gym. It isn't harmful and it does not give anyone an unfair advantage.
So which is it? Should alpine cottages be treated like performance-enhancing drugs? Or are they more like air conditioners, which no doubt can increase the amount of time an athlete can spend training, and thus, improve their chance for success? Where does laser eye surgery fall into the mix (4/21/05)? How about bionic surgery (3/28/05)?
As technology continues to improve, where should sports draw the line?
Posted By : Greg
Major League Baseball v. Fantasy Sports
Message posted on : 2006-01-30 - 09:29:00
http://www.cnn.com/2006/US/01/15/baseball.stats.ap/
Expansion of personal proprietary rights (the exclusive right to commercially exploit one's name, image or likeness) is not appropriate in the context of fantasy sports. Companies that offer commercial fantasy sports products, like CDM, Rotoworld, CBS Sportsline, etc., have customarily, though reluctantly, acknowledged a players economic right to his statistics, and accordingly have been paying licensing fees to players associations like the MLBPA.
It hadn't been a problem because players associations need revenue to fund the organization and especially to build a war chest, so very few had been denied a license. MLBPA recently gave its marketing rights to Major League Baseball properties, who is now withholding licenses to fantasy games operators. A company named CBC is fighting MLB on this issue, claiming that statistics are news and in the public domain, free for all to use and exploit.
I have not read the briefs yet. It will be interesting to see which "right" of the players MLB is seeking to protect: trademark in the player's name, state laws relating to one's image and likeness, statistics as a league held commodity.
Those are some of the positive concerns. For me the normative concern, relates to monopoly. Copyrights and patent rights are a Constitutionally required monopoly. All other attemtps to monopolize should be highly suspect, as illustrated by section 2 of the Sherman Act, and violative of the goal toward perfect competition in the marketplace. Without the aid and now depsite the resistance of sports leagues, fantasy sports has become a multi-billion dollar industry, creating jobs and profit for many. There are even analogous fantasy competitions. I've recently come across a fantasy law professor game, where the participants get points for article citations (bonus points if cited by a court). Major League Baseball, on behalf of the players union, claims a right to have stifled these novel ideas and business long ago if it, or the players, had so chosen.
Funny how the greedy greedy players or their agents never sought to monopolize this industry. If MLB can prevent the granting of licenses, then fans can legally play the games only on MLB. MLB will not have the incentive to innovate or make it cheaper. Of course, Fantasy sports including baseball would still continue, illicitly, with otherwise lawabiding middle aged participants as criminals, not unlike their music-downloading teenage children.
Even if MLB holds this economic right, I don't believe Congress should allow them to control it absolutely. Like the compulsory licensing scheme in the music industry, fantasy operators should pay a statutorily set fee to rights holders. As an eligible free agent in the law professor game, I don't want to stop people from betting that my article's will make it into the Harvard Law Review, I just want to get paid if it does.
Andre Smith
UPDATE: For more on this topic, see this earlier post (1/3/06). -- ed.
Posted By : SmittyBanton
Andre Smith - Guest Blogger
Message posted on : 2006-01-30 - 09:03:00
Good morning all,
My name is Andre Smith. I am an assistant professor of law at Florida International University, in Miami, Florida. I teach Federal Income Tax, Estate and Gift Tax, Administrative Law, and Sports and Entertainment Law. I do not teach Critical Race Theory or Employment Discrimination, but I do have strong opinions on the subject of race and sports, and I will share them with you.
Also, I am a fan of economics; not necessarily the conclusions economists make, especially those made by law and economic types. I am in love with the method and the presuppositions that equality (or equilibrium) is brought about by perfect competition, utilitiy maximization, perfect information, and no transaction costs. Looking at sports and race and race and sports in this context drives me towards many of my opinions.
Aside from that stuff, I am also an avid fantasy sports player and am certainly in defense of the industry in its battle against Major League Baseball's attempt to monopolize the industry via proprietary control over newsworthy information. Disclosure: I am affiliated with a website, www.hiphopsports.net, that is heavily involved in the fantasy sports arena.
I'm not a fan of monopolies. I believe the problems created by monopolies are the hardest for the common person to perceive. These "misperceptions" drive wedges between people who actually have common interests, and absolve those who profit from the problem in the first place.
Oh, and I am hiphop. So bear with me if my language, a mixture of English, American, Patois, Ebonics, and HipHop, confuses you at times. I'll try to be clear.
Those are the generalities. I'll be back with a real opinion or blurb or something in a moment.
Posted By : SmittyBanton
Because We Don't Want To Take Money Away From State Lotteries
Message posted on : 2006-01-29 - 23:59:00
From FindLaw: The Sporting News agreed to a $7.2 million settlement with the federal government to resolve claims it promoted illegal Internet and telephone gambling in print, on its Web site and on its radio stations.
U.S. officials said Friday that the advertising ran from spring 2000 through December 2003.
***
The Sporting News paid a $4.2 million fine Thursday. The remaining $3 million of the settlement will be for public service ads aimed at dissuading people from gambling over the Internet or via telephone.
Posted By : Greg
NHL Player Sues Canadian MP
OU Keeps Fans in the Stands; Team Still Wins
Message posted on : 2006-01-29 - 17:03:00
As a follow-up to my post from last week on fans rushing the court (1/26), I want to commend the efforts of the University of Oklahoma, who kept their fans in the seating area following an upset victory over arch-rival Texas on Saturday night. What herculean effort was the school forced to undertake to hold back the masses of fans? Try a PA announcement during the game warning the students that there would be consequences for coming onto the court. That's it.
Kind of makes you think that other schools would have similar success, if they actually tried.
Thanks to Andy Katz for noting this in his game recap.
Posted By : Greg
Top Positions in Division I-A Athletics Are Overwhelmingly White
Message posted on : 2006-01-28 - 18:26:00
Last week, the Institute for Diversity and Ethics in Sport at the University of Central Florida released an interesting study entitled, "The Buck Stops Here: Assessing Diversity Among Campus and Conference Leaders for Division I-A Schools in 2006." The study found that the people who make the key decisions in the athletic departments and on college campuses of Division I-A programs are overwhelmingly white: 94 percent of the school presidents, 89 percent of the athletic directors, 94 percent of the faculty athletic reps and 100 percent of the conference commissioners. The study also included head coaches, offensive and defensive coordinators, and assistant coaches. During the 2005 season, there were only four minority head football coaches in Division I-A, and two were hired at the end of the 2005 season at Kansas State University and SUNY Buffalo.
According to Richard Lapchick, the head of the Institute and author of the report:
"The study shows that the vast majority of the most powerful people in college sport are still white. Does the fact that the leadership at our institutions of higher education is overwhelmingly white and male have an impact on the hiring of head football coaches? How could it not? History shows that in the 'old boys' network, white men are likely to hire people who look like them. Many African-American coaches are waiting in the wings, ready to lead Division I-A programs, but when more than 92 percent of our campus leaders are white, chances are they will seek who they know."
In last Thursday's edition of The Chronicle of Higher Education, Brad Wolverton highlighted two recent developments that, according to Lapchick, could help give minority job seekers more opportunities in college sports. The first is that NCAA president Myles Brand hired Charlotte Westerhaus, an African-American woman, to lead the NCAA's diversity efforts. Secondly, a "report card" produced by the Black Coaches Association, in which colleges are graded not just on whom they hire but on the number of minority candidates they interview for openings, has encouraged more colleges to consider more minority candidates for jobs.
Another way to ultimately get more minority representation in head coaching positions would be to increase the pool of minority assistant coaches and grad assistants so that there are more available minority coaches to be considered for the head coaching positions. For example, the rules could be revised so that colleges would be permitted to hire a third grad assistant coach if that coach is a minority (colleges are currently only allowed to hire two). Colleges need to take a more proactive stance in hiring minorities as offensive and defensive coordinators, assistant coaches, assistant athletic directors and all entry-level administrative and coaching positions. Thus, it would seem that the minority percentage data at these positions around college campuses is as equally important as the data at the leadership positions. According to the study, an overwhelming majority of the coordinators and assistant coaches last year were white: 88 percent of the offensive and defensive coordinators and 72 percent of the assistant coaches. It would be interesting to see the minority percentage data at the assistant and entry-level administrative positions as well, but my guess is (and it is purely speculation) that it pretty much follows suit with the minority percentage data in the leadership administrative positions.
Posted By : Rick Karcher
Rondo Rides in Style, NCAA Says "OK"
Message posted on : 2006-01-27 - 16:39:00
As a very proud University of Kentucky alumnus, I hesitate to bring further attention to this story. However, Eddie Sutton, Dwayne Casey, Chris Mills, Claude Bassett and Hal Mumme provided enough fodder for truckloads of jokes about the (allegedly) corrupt nature of the University of Kentucky athletic department, so hopefully my decision to post this is simply the electronic equivalent of delicately placing a smoldering match on top of an already blazing forest fire.
Valerie Honeycutt and Jerry Tipton of the Kentucky Herald-Leader filed a report in Friday's edition detailing circumstances surrounding the smooth ride currently being driven by sophomore PG Rajon Rondo. I would imagine that the collective public muttering was quite audible around Lexington when student-athlete Rondo was seen cruising the streets around campus in a 2006 Yukon Denali.
The car is apparently titled to Derek Anderson, a member of Kentucky's 1996 national championship team, a Louisville native and current member of the Houston Rockets. Anderson and Rondo apparently forged a tight bond while Rondo was still a young prep star in Louisville, and according to the Herald-Leader, the NCAA investigated Rondo's driving the ex-Wildcat's vehicle prior to Rondo bringing it onto campus. The NCAA felt that Anderson and Rondo's relationship was genuine and that it developed well prior to Rondo's becoming a recruiting target of Tubby Smith's staff. Therefore, Rondo driving Anderson's SUV meets the standards set forth by the NCAA and violates none of its regulations. My favorite part of the article is that Rondo "uses the vehicle often, but not exclusively". Of course he does! What right-minded sophomore in college could get by with only a 2006 Yukon Denali. Every time my mom's old 1983 yellow Volvo station wagon conked out on the side of a campus thoroughfare, I recognized the desparate need that I had for backup transportation. Unfortunately, my backup was my own two feet. If I had only known the "Rondo Rule", I would have made a point to develop a "mentor-protege" relationship with Rick Robey when he was living down the street from my childhood home.
Too bad Sam Bowie did not decide to settle down in Toronto after his playing career was over. That would have prevented my buddies and me from snickering at Jamaal Magloire when he was seen sputtering down Euclid Avenue in a broken-down, early 80's Toyota Corolla.
Posted By : Scott Townsend
Don't Give Away Those Tickets!
Message posted on : 2006-01-27 - 13:32:00
Giving away tickets to the game? You never know what you're going to miss. For one Los Angeles man, exams and birthday parties have kept him from witnessing history -- twice.Stern, a vice chairman of a Los Angeles asset management firm, was an 18-year-old sophomore at Dickinson College in Carlisle, Pa., in 1962 when he bought two tickets to see the then-Philadelphia Warriors play the New York Knicks in nearby Hershey.
But when one of his professors scheduled a test for the next day, Stern gave the tickets away -- and thus failed to see Wilt Chamberlain score 100 points.
Now Stern is a Lakers season ticket-holder, meaning he had tickets to see Sunday's game against the Raptors. But Stern opted to attend a birthday party instead -- and thus failed to see Kobe's 81-point outburst.
"Two historic games, 44 years and 3,000 miles apart with one common thread -- stupid me," Stern told the Los Angeles Times.
Posted By : Greg
Stadium JumboTrons: More than Just a Marketing Tool
Message posted on : 2006-01-27 - 12:17:00
Greg Garber of ESPN has a fascinating look at a new use for the big-screens at stadiums. As it turns out, some players -- including Tiki Barber -- have used the screens during plays to locate blockers if they get disoriented. For example: "If I'm run blocking, I can look at the JumboTron to see where the running back is," Vikings receiver Marcus Robinson said. "And if there's a man chasing you, you're looking at the JumboTron to see where he is. If you're running, instead of turning around and [slowing], you can look up at the screen and see if he's gaining, or if he's coming in a different direction."
Yet another way that technology is changing sports. Check out the whole article.
Posted By : Greg
NBA Dress Code, Genetic Testing of NBA Players, and Player Autonomy
Message posted on : 2006-01-27 - 06:27:00
This afternoon I will be speaking at the University of Pennsylvania Law School as a guest of the University of Pennsylvania Journal of Labor and Employment Law. I am one of three panelists on a panel that will discuss the new NBA dress code, genetic testing of NBA players, and broader issues of autonomy and privacy in the NBA. The other two panelists are Alan Milstein, who needs no introduction, and Hal Biagas, deputy counsel of the National Basketball Players' Association. The panel's moderator is Professor N. Jeremi Duri of Temple Law School. The panel is part of the Professional Sports and Entertainment Symposium, which will also be featuring Donald Fehr, Executive Director of the Major League Players' Association, among other distinguished speakers.
In conjunction with this talk, I'm pleased to mak
e available a draft of my new law review article: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 U. Pa. J. Lab. & Emp. L. __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network, and I welcome any comments (my e-mail address is mmccann[at]mc.edu]). Here is an abstract -- and I will post more on it next week:
The Reckless Pursuit of Dominion examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA's capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of unappreciated cognitive biases, fans and media often embrace distorted views of player's maturity, arrest propensity, and collegiate experiences. As a result, NBA players tend to be wrongly identified as immature, out-of-control, and hopelessly uneducated. In turn, the NBA has designed policies that ostensibly remedy these feigned “problems� while less-detectably transferring autonomy from player to league. In short, the league sees that others often fail to see, and that enables it to surreptitiously control players.
Here is an excerpt from The Reckless Pursuit of Dominion on the new NBA Dress Code (from pages 11-12):
A number of NBA players have characterized the dress code as “racist� and emblematic of the NBA's increasing control over player autonomy and human expression. Perhaps bolstering this sentiment are recent NBA endorsement and licensing agreements that appear to celebrate the very lifestyle norms prohibited by the dress code. Consider the league's decision to hire British comedian Sacha Cohen (a.k.a. “Ali G�) to promote the NBA in television commercials. In the commercials, Cohen is dressed in a tracksuit accessorized by a large, bulky chain, while donning a skullcap and wraparound sunglasses—in other words, his attire expresses the very same “street� or “hip-hop� culture prohibited by the dress code. Similarly, the league has licensed a videogame called “NBA Ballers,� which pitches itself as, “the exclusive one-on-one basketball videogame highlighting the bling-bling lifestyle of NBA players.� In the game, players take on the identity of actual NBA stars and accumulate “mansions, cars, jewelry, women -- if you've spotted it on ‘MTV Cribs,' you're going to see it here" . . . Indeed, when the league exercises its authority, it celebrates “bling-bling�; when the players exercise their autonomy, the league castigates “bling-bling.�
And lastly, here is an excerpt on required genetic testing (from page 50):
Perhaps we should not find it surprising that an NBA player represents the first professional athlete petitioned to take a DNA test, that the player skipped college altogether, that the test was designed to detect the presence of an obscure illness, that comparable and less invasive exams had already been passed, and that an NBA team perceived broad public support and moral authority in orchestrating such a requisition. Indeed, the entire Eddy Curry affair appears consistent with the NBA's grander effort to extract player rights, and to do so while enjoying broad situational support in the face of counter-factual evidence.
As noted above, this is a pre-edited draft, so there may be a typographical error or two, and I would not be surprised if there are perhaps several blue-booking errors in the footnotes (and my apologies to the Journal's editors for that!). In any event, I hope that you get a chance to download and read it. Like I said, I very much welcome any feedback by e-mail.
Posted By : Michael McCann
SEC Takes Action for Fans Rushing the Court
Message posted on : 2006-01-26 - 09:17:00
The SEC did the right thing in fining the University of Tennessee as a penalty for its fans rushing the court after the upset win over Florida. The only problem -- $5,000 is not much of a fine. On the other hand, UT will likely take measures to prevent students from rushing the court again -- a second offense is $25,000, and a third will cost them $50,000. That will get a university's attention. (CNN/SI). The penalties are the result of a conference rule that went into effect in December 2004.
Andy Katz wondered if any other leagues have similar penalties and found only one -- the Big Ten imposes a fine of $10,000, but only after the third offense.
I have written about the dangers of students rushing the court on many occasions (column, post, post, post). And last fall, a student in Minnesota was killed by a falling goalpost when students stormed the field after a football game (10/27/05). How many serious injuries or deaths should it take for colleges to do what pro teams have done for decades -- keep fans off the field/court? Let's hope the other conferences follow the lead of the SEC before more injuries are caused by this preventable practice.
UPDATE: Skip at The Sports Economist has more on the economics of crowd control.
Posted By : Greg
Federal Judge: Anti-Scalping Law Unconstitutional
Message posted on : 2006-01-25 - 22:35:00
Not everyone who shelled out $300+ for a ticket to the Super Bowl in Detroit is thrilled to be seeing the Seahawks and the Steelers. But those with unwanted tickets can breathe (a little) easier after a court ruling last week. A federal judge held that a Detroit City Ordinance that prohibited the sale of sports or entertainment tickets at any price in public places (basically, an anti-scalping law) violated the First Amendment's protection of commercial speech. (Ashenfelter, "Taking a loss? You can sell that extra ticket," Det. Free Press, 01/20/06; Shepardson, "Federal judge axes Detroit's ban on scalping," Det. News, 01/19/06).
The court ruled -- under the Central Hudson test -- that the ordinance restricted lawful activity (the sale of a good at or below face value) and that the asserted government interests (regulating traffic and congestion; ensuring security of patrons) were not substantial and not furthered by the law. The court distinguished the sale of tickets at or below face value from re-sale above face value, which is illegal under Michigan law. So, you can get your money back, but if you want a profit, better to try eBay. You can read the court's opinion here.
For one take on scalping laws, see "The Follies of Anti-Scalping Laws" by Happel and Jennings. For an economic perspective, see "Another Look at Anti-Scalping Laws: Theory and Evidence" by Depken.
Posted By : Greg
CUSA Refs Choke after Penders Passes Out
Message posted on : 2006-01-24 - 11:05:00
Conference USA's assistant commissioner Chris Woolard issued a statement on Monday, January 23, 2006 admitting that the officiating crew handling the Houston-UAB men's basketball game on Saturday, January 21, 2006 "exercised poor judgment" by refusing to rescind a technical foul assessed to Cougars coach Tom Penders after Penders was rushed from the floor on a stretcher after collapsing on the UH sideline.
Penders fell face first onto the court after watching the Coogs' leading scorer, Oliver Lafayette, get whistled for a foul as UAB's Wen Mukubu drove to the basket late in the first half. Apparently believing that Penders was reacting to his disbelief with the foul call, an official issued a technical foul on Penders. Penders, who has a defibrillator in his chest as the result of a congenital heart defect, collapsed as a result of that heart condition and a bout with dehydration, Houston officials told the USA Today. However, even after Penders was wheeled out off of the court by medical personnel, the officials refused to rescind the technical foul assessed to him, apparently alleging either that he should have more appropriately collapsed away from the field of play or that they were not impressed by the lengths to which Penders was taking his theatrical play. Penders did return to coach the second half of the game without further incident, but the Cougars lost the game by three points (UAB made both technical free throws).
C-USA's statement alleges that "appropriate action will be taken" against the officiating crew in question, but no details were released. According to Michael Murphy of the Houston Chronicle, this bone-headed decision was not the only role that the zebras had in the outcome of the game. The officiating crew of Harrell Allen, Frankie Bordeaux and John Hampton called 45 fouls on the two teams, who shot a combined 59 free throws. Admittedly, I have seen only highlights of this game so I cannot comment on the effect that the incessant whistle-blowing and the Penders incident had on the flow of the game and its eventual final outcome, but at some point, should officials who are apparently this incompetent be required to face public questioning about their performance, just as Penders and his players are required to do after they have a terrible game?
Posted By : Scott Townsend
Cold Shoulder
Message posted on : 2006-01-23 - 09:58:00
Things are getting ugly in Houston between the greatest player in Astros history, 1B Jeff Bagwell, and team owner Drayton McLane. Houston Chronicle columnist Richard Justice summed up the current situation in a column in Sunday's Chronicle, describing the looming stalemate between player and management regarding Bagwell's future as a player for the Astros.
January 31, 2006 is the deadline for the Astros to file a disability claim on an insurance policy that the Astros took out on Bagwell at the time that he signed a five-year, $85 million contract after the 2000 season. Bagwell put up incredible offensive numbers throughout most of the 1990's, despite spending much of the decade hitting in the cavernous Astrodome. Of the first ten seasons that Bagwell spent in the major leagues, he made over $6.5 million only twice, despite making four NL All-Star teams, being named the NL Rookie of the Year in 1991, winning the NL MVP award in the strike-shortened 1994 season and leading his team to the postseason in 1997, 1998 and 1999. From a business perspective, he and Craig Biggio were the faces of a franchise beloved enough by its fans to support the construction of then-Enron Field (now Minute Maid Park). After the 2000 season, Bagwell was finally awarded with a substantial but heavily backloaded contract - money that he unquestionably had earned while being underpaid for several seasons as compared to other MLB first baemen during those years.
Bagwell was always known for his intense weight training regimen, and between 1996 and 2004 he played in all but 31 of his team's 1,296 regular season games. Off the field, Bagwell was held out by his teammates and his competitors as the consummate professional and clubhouse leader, quietly setting an example and serving as a role model for the young players surrounding him. Sadly, Bagwell's health took a devastating turn in 2005, when a bothersome degenerative shoulder condition sidelined him for all but 39 games, with most of those being to limited to pinch-hit appearances down the stretch of the season due to the fact that his shoulder condition prevented him from being able to throw a ball.
Now Bagwell's inability to throw, which also plagued him for a couple of seasons prior to 2005, and the $17 million guaranteed to him for the 2006 season have rendered him a target in the eyes of memory-deprived Houston fans as well as management. Astros representatives claim that if Bagwell cannot throw, then he is "disabled" pursuant to the terms of his contract with the team, and the Astros are entitled to receive $15.6 million in insurance proceeds. Bagwell believes that he can play and should be given every opportunity to prove so in spring training, which is still more than six weeks away. In a
USA Today report, Bagwell is quoted as saying, "Nothing is going to keep me from attempting to play baseball next season. Nothing." It appears, according to Justice's report, that the Astros are prepared to forcibly shelve arguably the greatest player in team history against his wishes, a move that would potentially save the team $15.6 million but that may lead to an ugly courtroom fight and irreparable damage in the eyes of Astros players and fans.
This situation inspires many legal and ethical questions, including several that are specific to major league baseball, where contracts are guaranteed, unlike the NFL where teams have the ability to shed players (and their
accompanying salaries) in the event that they encounter health problems that prevent them from performing up the team's desired standards. It also sends a message to professional athletes that putting off a big payday at the present with hopes of a bigger one down the road may come with its own unique share of consequences. If one was to compare the average performance and salary of Bagwell over the course of his entire career to those performances and salaries of others in similar roles, the results would likely indicate that Bagwell's performance was above-average and his salary was reasonable and deserved. However, the fact that a large chunk of that money is being paid to him at a point where he is no longer able to perform up to the levels that he did during the prime of his career has resulted in a heart-wrenching fight that seems likely to leave a permanent stain on a Hall of Fame career. As with the A-Rod sweepstakes several years ago, the players' union's stranglehold also prevents any individual player from opting to decrease the amount due to him under his contract, regardless of his own wishes and cirucmstances. While there are few situations in which multi-millionaire athletes like Bagwell deserve our heartfelt pity, unfortunate situations like this one certainly prove that the collective greed and ego of the players and owners leave little room for compromise and great opportunity for heartbreak.
Kobe Bryant Scores 81 Points in Game Against Raptors
Message posted on : 2006-01-23 - 00:23:00
Now seems as good a time as ever to invite you to read my law review article "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."
Seriously, that was quite a performance by Kobe last night. 81 points, on 28-46 shooting, is probably the most points we'll see scored in a very, very long time. In fact, it is the second-highest one-game total in NBA history, behind Wilt Chamberlain's 100 in 1962. Just think: Michael Jordan, George Gervin, Larry Bird, Dominque Wilkins, David Thompson, Bill Russell, Magic Johnson, Clyde Drexler, Reggie Miller--none of them accomplished Kobe's feat last night.
And, like his three championship rings, Kobe thrived last night despite not having ever played one minute of college basketball. Somehow, someway, he persevered.
And isn't it amazing that, by most accounts, five of the top 10 players in the NBA skipped college (Kobe Bryant, Lebron James, Kevin Garnett, Amare Stoudemire, and Tracy McGrady)--and guys like Jermaine O'Neal, Al Harrington, Eddy Curry, and Rashard Lewis aren't too shabby either--and
Posted By : Michael McCann
Breaking an Unwritten Rule? Coaches Who Talk about Their Players' Intelligence
Message posted on : 2006-01-21 - 12:37:00
Reading the Boston Herald this morning, a quote from Boston Celtics' coach Doc Rivers stuck out. (Steve Bulpett, "Blount and Banks Pine for Action," Boston Herald, Jan. 21, 2006). It concerns his decision to elevate rookie point guard Orien Greene to the back-up point guard position, while demoting veteran point guard Marcus Banks (pictured to the left with Rivers) to third-string status:
“Orien is definitely the backup point,� said Rivers. “There's no doubt about that. Orien's more solid, smarter, stronger, bigger. He gives me some size at that position. He just does a lot of little things that I like.�
"Smarter"? Sure, he is likely referring to Banks' "basketball smarts," or lack there-of, but it's not certain and his lack of specificity may be meaningful or at least damning. To publicly chastise a player's intelligence strikes me as a little inappropriate. Sure, we do it all the time with certain athletes (e.g., Manny Ramirez), just as we poke fun of politicians (e.g., think of your favorite joke about President Bush and I bet it pertains to his perceived intelligence) as well as celebrities (especially when they start opining about matters beyond their knowledge--e.g., Jane Fonda endorsing North Vietnamese treatment of American prisoners of war).
But it seems different when a coach publicly comments about a player's intelligence. I imagine we might feel similarly if a senator publicly called John Kerry "smarter" than George Bush, or if another actor called Alec Baldwin smarter than Jane Fonda (bad example!). There seems to be an unwritten rule that they shouldn't do that--call it a "situational deference" that is accorded to persons within a particular situation (think about all those times when you've told your friends or co-workers "just don't go there" with a certain remark because you were concerned about its possible effect on others present -- that's the situation at-play).
Should coaches talk about their players' intelligence? Is there really an unwritten rule at-play?
Posted By : Michael McCann
Lifetime Baseball Ticket for Iran Hostages
Message posted on : 2006-01-20 - 11:12:00
25 years ago today, the day Ronald Reagan was sworn in as the 40th U.S. President, Iran released the 52 Americans being held hostage by student revolutionaries (a leader of which, Mahmoud Ahmadinejad--allegedly pictured above, third from left--is now Iran's president). The students were upset that the United States had admitted Iran's ailing and deposed shah, Mohammad Reza Pahlavi, in for medical treatment (we can only imagine the kinds of people who would hurt innocent persons because others receive medical care). The hostages were diplomats and military personnel, and they were held for a harrowing 444 days, during which time they were regularly blindfolded, tied, and tortured.
When they returned to the U.S., they were greeted with parades and other welcome-back festivities. Unbeknownst to at least me and I suspect others, they also received an extraordinary gift from Major League Baseball: a lifetime pass to any major or minor league game. Les Carpenter of the Washington Post details how some of them have used their pass over the last 25 years. (Carpenter, "Safe at Home," Washington Post, 1/20/2006, at A01). Some have used it often, others never, and others have used it to help heal family problems generated by the hostage crisis.
Here is how the idea emerged:
What is the reward for suffering? Baseball commissioner Bowie Kuhn discussed the topic one day in the middle of the hostage crisis with Jeremiah Denton, a Navy admiral who had been held captive in Vietnam and later became a senator from Alabama, as they sat at a baseball game in Cincinnati. Sometime that afternoon, Kuhn is convinced, the idea of a lifetime baseball pass was discussed, though he can't remember the actual conversation. What he does know is that the gift is unique. "You know, I'd be hard-pressed to tell you that we gave out passes to anyone other than them," Kuhn, who retired in 1984, said recently.
Obviously, nothing can compensate for what those hostages endured, but a lifetime ticket is certainly a nice gesture. Major League Baseball has often been criticized over the years, but they did right on this one.
Having said that, I had a question after reading this piece: Not to dampen the feel-goodness of this story, but if we assume that the ticket is non-transferable, then what happens if some of the ex-hostages hate baseball and want to sell it, especially those in need of money? If the ticket doesn't require an I.D., then presumably that wouldn't be much of a problem. But does it require an I.D.? The article at one point alludes to an ex-hostage telling a ticket window "who he is," so perhaps there is some kind identification required. While many of us would find a lifetime baseball ticket of extraordinary valuable, we all know people who would never use it. One would hope they too have found value in the ticket.
One other thought: if the lifetime ticket could somehow be sold or traded, would the "lifetime" duration remain tied to the lifespan of the ex-hostage who received the ticket, or the new owner/possessor?
Posted By : Michael McCann
A Few Good Links
Message posted on : 2006-01-20 - 06:02:00
As the weekend thankfully approaches, here are few posts worth checking out:
1) Professor Gregory Bowman at Law Career Blog helps law students compare law firms. A useful and engaging commentary for those students interested in working in law firms, and particularly those who value things like quality of life and firm culture:
[H]ow are associate compensation schemes and law firm culture related? Average salaries are only the tip of the informational iceberg, and compensation schemes vary widely . . . Compensation set by committee means that there are insiders and outsiders--and try as you might, someone gets shafted. And the process becomes enormously political. The "Eat What you Kill" approach lowers the infighting factor, but it leads some partners to hoard work if they can get paid more for doing work themselves instead of handing it off. That, of course, is bad for the associates.
2) Professor Mike Dimino at Concurring Opinions compares criticism of referees with criticism of judges. Earlier this week, John Powers (are referees too old?) and Greg Skidmore (did the NFL sandbag Pete Morelli?) both analyzed referees, and Professor Dimino provides another terrific analysis:
My question is predominantly a practical one: Do restrictions on criticism of sports officials add to their respect? Does a sports league, or do individual officials, gain anything when the league prohibits a coach from saying that a particular official blew a call when replay after replay makes that fact clear to everyone? Is the speech ban prophylactic, in that the real goal is to eliminate comments relating to potential bias or limit violence? What, then, explains the leagues' apparent acceptance of on-field criticisms of officials (e.g., Marv Levy: "You over-officious jerk!")?
3) Sports Law Blog reader Kirk LeCureux has just started US Rugby Blog, a blog dedicated to starting a professional rugby league in the United States. Would such a league work? Would American consumers find rugby "too foreign"?
Bonus Link: My friend Jennifer Yen is staring in a film called Stalemates. She doesn't appear to be using her law degree, though, as she plays an assassin. Anyway, it's nice to see attorneys who have other life skills (although some say all litigators are really actors, so who knows).
Posted By : Michael McCann
Fight Night with the. . .NBA? Torts 101
Message posted on : 2006-01-19 - 18:50:00
Law professors all over the U.S. have new fodder for a cool new law exam question.
So get the facts, and allow me to do something I've always wanted to do: "Evaluate plausible liabilities;" or, "Discuss all plausible tort claims."
I know I'm opening the proverbial can of worms here, and I welcome all comments (don't get into who owns United Center, etc.), but after a quick perusal of the facts, here are some cursory thoughts:
Mrs. Davis vs. Fan
Assault: Mrs. Davis must prove (1) apprehension of (2) immediate battery. She would argue that she was facing Fan and felt reasonably threatened, and that Fan knew with substantial certainty that his acts would cause such apprehension.
Fan uses affirmative defense, saying that by attending the game, Mrs. Davis impliedly consents to being the subject of a reasonable amount of taunting; after all, professional sports venues are customarily confrontational. Thus, he'll argue, Mrs. Davis' apprehension was unreasonable.
Fan may argue self defense, if she indeed was yelling at him.
Battery: The facts speak to Fan touching Mrs. Davis' arm. Mrs. Davis must prove (1) harmful or offensive contact (2) with her person.
Fan could defend himself by saying Mrs. Davis is being "super-sensitive," and he had no reason to know of her sensitivity to a simple touch. He could also assert the same defenses as he did for assault.
Mrs. (and Mr.) Davis vs. United Center
Negligence: Davises argue that Owners owe a duty to relatives of visiting players, that the duty was breached by lack of security or bad seating arrangements. But for bad security, Mrs. Davis would not have been subjected to the ensuing harrassment, assault, battery.
Davises could argue negligence in unreasonably selling beer.
Fan vs. United Center
Negligence: Citing recent developments
, Fan would argue that United Center security breached their duty to the fans by not providing enough security to keep players out of the stands.
Memo to NBA players: DON'T GO INTO THE STANDS. EVER.
Fan v. Mr. Davis
Assault: Fan argues that once Mr. Davis (6'9'' 265) walked toward him, Fan was reasonable in feeling apprehension of immediate battery. Mr. Davis could assert the affirmative defense of defense of others, arguing that even if he was mistaken as to Mrs. Davis' endangerment, he reasonably believed she was in danger.
False imprisonment: Fan argues that Mr. Davis' threatening present was a sufficient enough act of restraint to keep Fan in a bounded area.
Fan vs. Knicks: Theory of respondeat superior.
There are a myriad other liabilities, issues, defenses and theories, including Me vs. NBA for intentional infliction of emotional distress. But, have at it, have fun at it.
Posted By : John M. Powers
From Poms to Pain
Message posted on : 2006-01-19 - 11:04:00
As cheerleading squads have moved from a focus on simple support for the team that they are representing into teams separate from the sport that they are cheering on, the moves and routines utilized by cheerleaders have become less stationary pom-pom to difficult and dangerous gymnastic-type moves. As a result, injuries to cheerleaders have greatly increased. Two recent studies in Pediatrics highlight these dangers.
The first study, published in April 2005, found that the high-impact physical activity found in cheerleading and gymnastics led to independently greater odds of stress fractures among girls than basketball or soccer. “It is biologically plausible that these activities are most strongly associated with stress fractures, because the load applied to bone can equal 2 to 5 times body weight for jogging or running and up to 12 times body weight for jumping and landing, which are repetitive maneuvers in cheerleading and gymnastics.�
A second study, published earlier this month found that 208,800 children from the ages of five to eighteen were treated in U.S. emergency rooms for cheerleading-related injuries from 1990-2002. During this period, there was a 110% increase in these injuries from 1990 to 2002. As this study only involved reporting in emergency rooms, this number is surely greater, not taking into account treatment by trainers, specialists, or family physicians.
As a solution, the study suggests that a uniform set of rules be implemented and enforced nationally. Further, the doctors recommend the formation of a national database to document cheerleading-related injuries to further development injury prevention. Finally, the study calls for mandatory safety training and certification for cheerleading coaches.
The problem is that some state athletic associations do not consider cheerleading to be a sport that the respective associations would govern. As such, schools lack proper equipment, facilities, and training. “Some cheerleaders practice in hallways and practice on hard surfaces instead of mats, so when they fall of a pyramid or from the air and they land on hard surfaces, the chances for injury are drastically increased.�
While parents often sign-off on waivers for their students to participate in athletics with the understanding of possible injuries related to the sport and courts making favorable decisions to schools, teams, and coaches, when dangerous conditions are created and the proper safety measures are not taken by schools and teams, liability may arise.
Why would athletic associations not rush to define cheerleading as a sport to bring proper safety and training before lawsuits begin piling up?
Hat tip: Anna Johnson (Chicago Tribune)
Posted By : Tim Epstein
UPDATE: Angels v. Anaheim Trial Begins
Message posted on : 2006-01-18 - 17:25:00
Last week, the trial began in the case between the Angels baseball team and the city of Anaheim. The issue -- whether the Angels' name change to the absurd "Los Angeles Angels of Anaheim" violated the provision in their lease which required the team name to "include the name Anaheim therein." The team argues that its new name satisfies the clause; the city argues that sports teams are known by the geographic title before the nickname -- in this case, Los Angeles. Coverage of the Angels this past year should support the team's interpretation -- the Angels were routinely referred to as "Los Angeles," "LA", or "LAA," rather than "Anaheim" or "ANA."
In its opening arguments, the city claimed that the Anaheim clause was the "bait" dangled in front of the city so that it would agree to spend $20 million to renovate the stadium. "The city council would never have approved of this deal with the possibility the team would be called the Los Angeles Angels, or that Anaheim would be liquidated from the name of the team," the lead attorney stated in his opening argument, while fans wearing "We Are Not L.A." t-shirts looked on from the gallery.
Now, it will be left to the Orange County jury both to interpret the lease provision and decide what both sides intended when entering into the contract. The trial is expected to last four weeks. (Shaikin, "Opening Shots Fired in Angels, Anaheim Trial," LA Times, 01/13/2006; Parsons, "Can Angels Name Spat Have a Winner?" LA Times, 01/15/2006; Flaccus, "Angels' Name Change Trial Begins," Forbes (AP), 01/13/2006).
Related Posts:
Why Not the O.C. Angels? (1/3/05)
Judge Allows Angels to Change Name (1/22/05)
California Assembly: Angels Engaged in False Advertising (5/17/05)
Posted By : Greg
Non-Legal but Philosophical Baseball Thoughts
Message posted on : 2006-01-18 - 16:44:00
I ventured into the realm of football with my last post, and did so with a very "baseball" state of mind--I complained about refs. I suppose baseball would be my expertise (must you pay for my stats?), so here are some random thoughts.
1) Many baseball insiders--coaches, managers, general managers, scouts--in baseball believe that the pendulum of player grading has swung too far in the direction of sabermetrics; or at least, that too big a deal is made of it. Subscribers to the dynamics of dialectics (and baseball purists) would argue that the pendulum will swing back somewhere to the synthesis of balance between strict adherence to sabermetrics (thesis) and reasonable use of scouting the intangibles (antithesis).
I do not doubt sabermetrics' usefulness for economically valuing players for the purposes of arbitration or free agency. However, inter alia, there is debate as to its limited effectiveness in predicting minor league prospects' success, as well as the normative question of HOW it should be used. Mike Scioscia, Manager of "The Los Angeles Angels of Anaheim in Orange County within Southern California" prioritizes the statistic that gauges how often a player goes from first to third. Since his team won the A.L. West in 2005 (and won the 2002 World Series), is he a better sabermetrician than Billy Beane? Does Scioscia even believe in the value of sabermetrics?
2) Front office dynamics. Professor McCann recently noted the new, young brand of General Managers in MLB. Besides a grasp for player development and the overused, talked-to-death sabermetrics, these General Managers must also fully understand the MLBPA, including issues such as the Rule V Draft (of which I was a draftee in 2002, and found out from the Cubs after my Crim Law final), player options, arbitration, free agency, the amateur draft and how they affect each other.
Generally, the dynamic at the top of baseball organizations is set up thus: if the General Manager is a veteran "baseball guy" whose expertise is scouting talent, then he'll be complemented with a Special Assistant who is the procedural expert; if the General Manager is the procedural expert, then the Special Assistant is the veteran talent scout.
3) If I owned a team (I'm saving up), Kim Ng would be my General Manager. She has a first rate mind (Univ. of Chicago Law) and experience, so I do think she knows the game. Additionally (and much less importantly), the enlightened media would be over the top with this story and predictably favorable.
4) Professor McCann's post, here, is my favorite. I've made this same argument for years, albeit much less eloquently, and with a beer instead of coffee mug in front of me. A-Rod and other professional athletes don't get a "take 2."
Comments are welcome.
Posted By : John M. Powers
The Former Athlete as Counselor
Message posted on : 2006-01-18 - 09:48:00
Back on January 9th, Mike McCann posted a story on ex-athlete politicians (A Juke Move on Voters? Sports Acclaim and Becoming a Lawmaker). One of the questions that arose was why ex-athletes seemed to have such great success in the political arena. Some of the comments indicated that excellence and leadership skills in a particular sport could translate to the political arena, while others acknowledged that American politics often devolves into a popularity contest with celebrity being the more powerful force wielded by former athletes seeking political office.
As indicated in the post and subsequent comments, many former athletes, including minorities, run as Republicans. While this may be the result of a desire to self-preserve wealth accumulated through athletic achievement by aligning with a party that has more favorable fiscal policies towards the wealthy than Democrats, what about athletes that have fallen on troubled times and lost wealth and/or future earning potential?
One route has been community activism and involvement. One of the best examples is Marvin "Bad News" Barnes, former Providence College and ABA star. After being a two-time All-State selection at Providence's Central High School for undefeated state title teams in 1968 and 1969, he starred at Providence College, where he was twice named an All-American, leading PC to the Final Four in 1973.
Although selected as the No. 2 pick behind Bill Walton in the first round of the 1974 NBA draft, he signed a $2.2 million contract with the ABA Spirits of St. Louis. Though "Bad News" was named Rookie of the Year in 1975 (over Moses Malone) and was later chosen one of the ABA's greatest 30 players. He bounced around with four teams in the NBA from 1976-80, ending his career being cut by the Clippers after just 20 games. This is an excerpt from his days as a Boston Celtic:
"I remember this one game, I was sitting at the end of the bench," he recalled. "I had a towel over my head and I was snorting coke and my nose was bleeding. Don Chaney and Nate Archibald moved all the way up to the front and I had four or five seats between me and the next player. I was snorting coke and it was tearing my membranes up. Snorting it and blowing my nose. It was like my brains were coming out in the towel and I couldn't stop snorting it anyway. It was terrible, man. I was addicted."
During his basketball career and afterwards, his struggles with alcohol, drugs, and violence would lead him to being homeless on the streets of San Diego at the age of 28.
After stints in rehab and jail, “Bad News� returned to Providence, eventually founding the Rebound Foundation, “dedicated to providing a strong and sensitive platform for all members of the human family to receive and respect life's blessings through motivational messages, athletic pursuits, drugs, counseling, legal aide assistance, and basketball camps. We stand for the enormous opportunities within our reach. We recognize that to realize the potential and power of our innate talents, we will need to confront challenges and overcome obstacles.�
While Barnes' demons continue to haunt him (he was arrested for disorderly domestic conduct on December 22 for an incident with a female friend), his program appears to have made some meaningful, positive contributions to his old neighborhood.
While many counselors claim success by drawing on their own experience in overcoming struggles with problems like drugs and alcohol to help those
utilizing their services, does an athlete abuser attain some higher level of credibility with those in need? In the case of Barnes and other athletes that have struggled with addiction (Lawrence Taylor, Darryl Strawberry, Kevin Stevens, etc.), isn't there a loss of connection with a counselee due to the level of fame and wealth accumulated and wasted? It is easy to point out potential for success to an all-star athlete as motivation, but what can these ex-athletes offer to those that do not enjoy professional-level athletic talent or potential? Are actual connections being made, or is athlete adulation clouding results? Are these athletes truly effective in giving court mandated talks as conditions of their probation?
Posted By : Tim Epstein
Update on Harlem Ambassadors' FTC Complaint Against Harlem Globetrotters
Message posted on : 2006-01-18 - 00:02:00
Adam Kress of the Business Journal of Phoenix has an informative piece on a recent complaint filed by the Harlem Ambassadors with the U.S. Federal Trade Commission concerning the Harlem Globetrotters' use of exclusivity windows (Kress, "Competitor Files Federal Complaint Against Globetrotters," The Business Journal of Phoenix, 1/15/2006). The piece is available on MSNBC.com and we discussed the complaint back in December.
In sum, the Globetrotters negotiate exclusivity windows with arenas and other venues, and these windows restrict other basketball entertainment troupes from performing at the same venue eight weeks prior and six weeks after their shows. The Globetrotters claim that they only play three-and-a-half months a year, so the Ambassadors still have most of the year to play in those venues, and their failure to do so should suggest the obvious. The Ambassadors--through their CEO, Dale Moss--retort that the rest of year isn't basketball season. Moreover, notes Moss, "if the rest of the year was attractive, the Globetrotters would be playing then." Consequently, the Ambassadors--led by a female player, Lade Majic (pictured above with Charles Darwin)--appear to have little or no real chance of competing with the Globetrotters.
Kress interviews several persons for the story, including me:
Michael McCann, a leading sports attorney and professor at the Mississippi College School of Law, said the complaint could very well get the FTC's attention. "I think the FTC will look into it and be concerned with the lack of competition over the years," he said. "Other acts like circuses have windows, but there still tends to be a good amount of competition."
McCann said the FTC also may view the three-and-a-half-month exclusivity window as excessive and make a change.
"This affects the Ambassadors, but also future teams that may want to get in on the action," he said. "Exclusivity windows have probably deterred others from trying to compete."
He also interviews Ralph Marchetta of the US Airways Center in Phoenix:
Such windows of exclusivity around performances are not uncommon, said Ralph Marchetta, vice president of entertainment for US Airways Center, where the Globetrotters will play two shows Jan. 21. "In family-type show arrangements, it's fairly common to look for windows of protection because you're marketing to the same group of people," he said. "It can certainly be problematic, but it can be avoided."
Is this an example of survival of the fittest, or is it a classic case of monopolistic behavior?
Posted By : Michael McCann
Aged Zebras
Message posted on : 2006-01-17 - 17:09:00
As complaints about NFL referees start to seep into the news and the NFL throws them under the bus, I want to try to get ahead of the story by addressing what to me has been an obvious problem for years--that referees are too slow; i.e., old.
The players' average age is somewhere between 25 and 29, and these men among boys are arguably the best athletes in the world playing its most violent sport. To me it is an undeniable fact that no other sport in the world combines the power, strength, speed and intended collisions that NFL athlete possess and produce. And yet, while watching games, I can't help but chuckle at the middle aged men moving in uncoordinated slow motion all over the field, trying to patrol it. If the hand is indeed quicker than the eye, then the aged NFL referees are missing alot.
These slow, aged referees should be replaced with athletes--fast enough to keep up with plays, tough enough to get in close to the play, deft enough to see the intricacies of plays and quick enough to make the right calls from the best angle of each play.
Oh but there's a catch: See 29 U.S.C.A. S623 Section (a) of the Age Discrimination in Employment Act. Even the Refs can read it.
But Section 4(f)(1) of the very same statute allows the NFL a way out: "It shall not be unlawful for an employer. . .to take any action otherwise prohibited under subsections (a)-(e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. . ."
In determining whether age is a bona fide occupational qualification reasonably necessary for the normal conduct of business under this statute, the NFL would have to show that the essence of its operations requires the age qualification (maximum age). The cours look at such factors as public safety (irrelevant here), but could argue that the safety of the players and referees is at stake.
Watch the Championship games this weekend more closely. The refs cannot keep up with plays. If millions of dollars weren't at stake, it'd be comedic. Future referees should not be any less knowledgeable about the rules, but they should be able to more effectively keep up with the speed of the players.
For those with interest in labor law, I welcome any and all comments.
Posted By : John M. Powers
Is that the NFL's Knife Sticking Out of the Zebra's Back?
Message posted on : 2006-01-17 - 11:55:00
The NFL made a public declaration yesterday that referee Pete Morelli made an error in Sunday's Steelers-Colts game when he reversed the call giving Troy Polamalu an interception, ruling that the safety did not control the ball before his own knee knocked it loose. (ESPN/AP story). It was certainly a close call on the field, and one that will have future ramifications for the definition of a "football move." Some people thought Morelli got it right; many others felt he erred. The NFL has now sided with the latter.
But should the NFL have publicly criticized its own official? As a long-time baseball umpire, I take great offense when league executives openly do not support the on-field judgment calls of game officials. Officials are human, and humans make errors (even with instant replay). This is part of any game that is played. Certainly, this officiating crew (and all officiating crews) should be critiqued, and their mistakes analyzed, by league officials, but these meetings should take place behind closed doors.
The only possible exception is when a call directly impacts the outcome of a game. The one example I can think of is the last time the NFL outed its officials -- the botched pass interference call in the Giants/49ers play-off game a few years back. But, thanks to bad play-calling and a missed field goal, the Polamalu non-interception did not change this game's outcome.
It seems to me that the NFL is using Morelli as a whipping boy for a weekend of bad officiating. The zebras were heavily criticized for a pass interference call against the Patriots, a non-call on pass interference against the Colts and a number of other miscues throughout the play-offs. NFL officials should be much better than this, especially in the play-offs. But the reprimand should come in private. By sacrificing an experienced official to protect its own image, the NFL made an error in judgment far worse than any made during this weekend's games.
Posted By : Greg
New Way to Post Comments
Message posted on : 2006-01-16 - 19:15:00
As the blog has grown, we have found it necessary to have more control on the content posted in our Comments section. It also appears that HaloScan deletes the older comments after a certain amount of time. Thus, we have updated the blog to use a new Comments feature.
To post a comment, please click on the "Post a Comment" link after each post. We have left the "Old Comments" link up, so that readers can view the existing comments, but these will be taken down after a few weeks. Please do not post there. If you experience any problems with the new Comments section, please email us.
You can read all of the comments for a post by clicking on the "Comments" link and scrolling down past the original post. We will moderate the Comments section and reserve the right to delete any posting that is, in our judgment, outside the scope of this blog (i.e., an advertisement) or a violation of good taste.
As always, thank you for reading and for sharing your insightful thoughts on our posts.
Posted By : Greg
Could Gaming Help Chicago Become an “Olympic� Kind of Town
Message posted on : 2006-01-16 - 19:02:00
One thing came to mind after da Bears loss to the Panthers last night outside of whether Ron Rivera (Bears Defensive Coordinator) still has a shot to take over in St. Louis: what are the chances of Chicago getting the summer Olympics in 2016?
While the U.S. Olympic Committee has yet to make any decisions on whether an American city will even be nominated to host the 2016 Games, Jim Scherr, CEO of the U.S. Olympic Committee, stated in a press conference in Chicago that “[Chicago would] not only be an excellent host for an Olympic Games, but would have an opportunity to be a successful bidder if it chose to bide and if we chose to run.�
The biggest impediment to the Windy City's bid: not having an appropriate venue for Opening and Closing Ceremonies. Hosting the Olympics requires a venue that would seat at least 80,000 people (the recently renovated Soldier Field only holds 61,500). While the Mayor's exploratory committee would seek out both financial and physical aid in hosting the Summer Games from other cities, states and universities, the “gem� of the ceremonies would most certainly be in Chicago.
The idea has been circulated of possibly bringing in a second NFL franchise to Chicago that would play in a venue constructed for said team's home games as well as for use in the hosting of the 2016 Games. While the idea of Chicago supporting a second NFL team seems daunting, there is precedent (the Cardinals played in Chicago and the greater metropolitan area until 1960). With the difficulties that bringing in a new NFL franchise presents, is there an easier solution? Maybe City Hall should look East…
Mellon Arena, home to the Pittsburgh Penguins, is run down as is the surrounding neighborhood, which apparently has great accessibility to downtown Pittsburgh. Mario Lemieux and the rest of the ownership group had threatened to leave the area, but recently announced partnering up with Isle of Capri casinos. If Isle of Capri, which owns 15 casinos throughout the US, Europe, and the Bahamas, secures the state license to operate a Pittsburgh casino, it would build the casino in the lower Hill District, with a new facility for the Penguins in the same complex. Along with this is a plan for redevelopment of the area. Of note, Mario's crew has made it clear that there is a "risk" that the Penguins will leave town if their new friends don't get the slot machine license.
Some interesting questions arise out of the Pittsburgh case. Should there be a certain distance from gaming corporations and professional sports teams in terms of funding? How appropriate is it for a professional ownership group to strong-arm the state gaming board by threatening a team leaving town if a gaming license is not given?
If the Penguins deal goes through, could this not be a model for Chicago? It is no secret that Mayor Daley wants a casino in Chicago, so why not combine the ambitions for gaming with The Games? Such a venture would not only provide Chicago with a venue necessary for host city consideration, but a venue to host events like the Super Bowl and the Final Four.
Posted By : Tim Epstein
"Cricket. . .More fun than Nuclear War!"
Message posted on : 2006-01-16 - 17:21:00
India and Pakistan have fought three wars since 1947 over the Kashmir Region, a region of particular scenic beauty. Their bilateral conflict is presently a global issue because they both have nuclear weapons--I know, yikes, right?
The two countries initiated peace talks in 2004, however, and tensions have eased. This week, the respective foreign secretaries are set to begin yet another round of talks. As important as these talks will be, the citizens of India and Pakistan will be focused elsewhere for confrontation--on the pitch whereon the cricket series between the two countries will be taking place.
At the risk of sounding like an overly naive peacenik, I just can't help but think that this series of cricket tests might just contribute to Indian-Pakisani peace. As sports fans, let's hope for a spirited and competitive series, where the citizens of both countries come away with pride for their athletes and respect for the opponents and the countries they represent.
Posted By : John M. Powers
Different Strokes for Different Folks? The Disparate Treatment of Young Actors and Young Pro Athletes
Message posted on : 2006-01-16 - 00:02:00
We often hear, with great derision and perhaps jealously, that young athletes shouldn't be paid so much money. For whatever reason(s), there appears to be a widespread intuition that athletes, and particularly young athletes, simply don't "deserve" their earnings (even though we are the ones responsible for their high salaries, but that's another story). We also sometimes hear admonitions that young athletes shouldn't skip college to sign million-dollar contracts, or that they are somehow ill-prepared for life as pro athletes (but not, interestingly enough, ill-prepared for life as soldiers risking their lives in Iraq, or life as McDonald's employees making the minimum wage).
"Why don't they want to stay in school and get an education?" "Why don't they want to mature under the learned hands of coaches like Joe Paterno and Fisher Berry?" "Why can't they just pay their dues and make a lot of money for colleges and universities like, you know, other athletes before them?" "What is wrong with them?"
Well, Forbes Magzine has complied a list of some of the world's best-paid young celebrities. Here are the names from the list with age/profession/2005 earnings:
Amanda Bynes
19-years old, actress, $1.5 million -- pictured above with Kevin Garnett
Hillary Duff
18-years old, actress/musician, $15 million -- I guess people didn't read those reviews for Cheaper By the Dozen 2 and Agent Cody Banks
Paris Hilton
24-years old, "personality," $6.5 million
Lebron James
20-years old, NBA player, $22.9 million -- doesn't seem overpaid compared to others on this list
Adriana Lima
24-years old, model, $4.5 million
Lindsay Lohan
19-years old, actress/musician, $11 million -- I don't think her recent interview in Vanity Fair will help her earnings in 2006
Mary-Kate & Ashley Olsen
19-years old, actresses/NYU sophomores, $21 million -- pretty good part-time work for being full-time college students (although, to be fair, Mary-Kate did drop out of NYU in October 2005)
Frankie Muniz
20-years old, actor, $8 million -- his latest film, Agent Cody Banks II, generated this review from the
New York Post's Lou Lumenick: "As family entertainment, it constitutes child abuse."
Ashlee Simpson
21-years old, singer/sister, $5.3 million -- all the pieces, pieces, pieces of her good fortune
Maria Sharapova
18-years old, tennis player, $18.2 million -- lucky her name isn't "Lebron James" or people might begin to worry about her earnings at such a young and impressionable age
Serena Williams
24-years old, tennis player, $12.7 million
Isn't it interesting that we seldom hear complaints about young actors and actresses earning millions for their work, even their lousy work, while young athletes--and especially young African-American male athletes--often draw the ire of society? What makes these two groups so different? Why is one presumed overpaid, while the other enjoys some peculiar benefit of the doubt, even when their work stinks?
Posted By : Michael McCann
Old Age and NFL Coaching
Message posted on : 2006-01-13 - 19:30:00
A week after taking over as the Buffalo Bills' general manager, 80-year-old Marv Levy has emerged as a possible replacement for Mike Mularkey, who resigned earlier this week as the Bills' head coach. Levy, a Hall of Fame coach for the Bills back in the 80s and 90s, would become the oldest coach in NFL history. That distinction currently belongs to . . . Marv Levy, who was 72-years-old when he last coached the Bills in 1997 (George Halas was also 72 when he coached the Chicago Bears in 1967).
Is an 80-year-old Levy "too old" to be an NFL head coach?
By mere virtue of his age, absolutely not. A blanket categorization of "80-year-old persons" would reflect stereotypical thinking and naivete. There are productive and energetic 80-year-olds just as there are incapable and lazy 40-year olds. In part for that reason, age discrimination laws would likely prevent the NFL (or any pro sports league) from imposing an "age ceiling" on coaches. Though Levy serving as both GM and Head Coach would be challenging and perhaps regrettable, that may be true regardless of his age. Moreover, whether Levy is the right person for the job is a decision that Bills' owner Ralph Wilson should make and not the NFL through imposition of an arbitrary age ceiling.
It is interesting, though, that we have age restrictions on entry as a player, yet coaches and staff can presumably be of any age. Granted, player age restrictions more precisely reflect "age floors," but the same underlying premise remains: leagues would rather use age proxies than to allow players and teams to make their own decisions, presumably because leagues would rather engage in stereotypical thinking than analytical thinking.
Posted By : Michael McCann
High School Basketball: A Right or a Privilege?
Message posted on : 2006-01-13 - 19:07:00
At the risk of being accused of flooding the Sports Law Blog with another story out of Massachusetts (home of the 2 time defending Super Bowl champion Patriots), here's a newsworthy one from the western part of the state. An interesting issue presented itself in Springfield MA concerning the right of a high school student arrested on felony charges to play on his team's varsity basketball team.
Nicholas Tokarski, a Springfield high school senior and four other teens were arrested and charged with damaging cars and buildings in Springfield over a four-month period that ended last July.
Citing an unwritten school policy that prohibits students charged with felonies from being involved in certain school activities, the high school principal apparently blocked Tokarski from further participation on the school's basketball team. He and his family went to court in December and were granted the right by a judge to continue playing basketball for the time being. The ruling allowed Tokarsi, who was a co-captain on the team and apparently quite good, to play in games while the judge ruled on his request for a permanent injunction against the school.
A family lawyer argued that Tokarski's chances of a college scholarship or financial aid would be harmed if Tokarski couldn't play this season. A city solicitor argued there is "no right under the constitution to play basketball," and that due process was granted by school officials, through meetings with Tokarski's parents. "Education is a right, basketball is a privilege," the city solicitor said.
Tokarski was actually indicted on these charges (which seems severe). His case is now pending in Hampden Superior Court on one count of malicious damage to a motor vehicle and six counts of wanton and reckless destruction of property valued at $250 or more. Apparently, 300 students have signed a petition in support of Tokarski's playing basketball this season.
Posted By : Scott Gilefsky and David Frank
Shameless Book Plug
Message posted on : 2006-01-13 - 17:38:00
I am the author of a chapter in a new book edited by Professors John Norton Moore and Robert F. Turner of the University of Virginia School of Law, and also Attorney Ross Fisher of Kaye Scholer. The book is entitled "To Oppose Any Foe: The Legacy of U.S. Intervention in Vietnam." My chapter postulates the possible geopolitical effects of an earlier withdrawal of American troops, and concludes that such a withdrawal may have proven "worse" than having remained in Vietnam. By incorporating behaviorism, I examine political trends in nearby nations (e.g., Thailand, Singapore, Malaysia), as well as those in Latin American nations. Was the "Domino Theory" valid or was it the product of an exaggerated "Red Scare"? Well, I do not assert a conclusive answer, but I find that it did have some evidentiary support and has probably been dismissed too easily by many contemporary historians.
The book has received some positive and noteworthy reviews:
“A remarkable work . . . that will contribute to a more mature and balanced perspective on the tragedy of Vietnam.�—Professor James MacGregor Burns, Williams College (emeritus), winner of the Pulitzer Prize and National Book Award
“A serious and refreshing relook at America's engagement in Vietnam and its longer term consequences.� — The Honorable James Schlesinger, former Secretary of Defense and Director of Central Intelligence during the Vietnam War
For those interested in military history and military law, I believe it would make an excellent read. It is available through the Carolina Academic Press.
Posted By : Michael McCann
The Baseball Hall of Fame and Multi-Year Eligibility
Message posted on : 2006-01-12 - 19:05:00
In an e-mail, Sports Law Blog reader Thomas Santanello raises an interesting and timely point about voting for the Baseball Hall of Fame:
Why would a player be eligible for more than one year? What does he do for his career . . . during the years he is retired? What makes him more deserving one year than the next? My view is a player played his time, therefore if he is not deserving in 2002, what makes him deserving now. You are either a Hall of Famer or not, you are either the elite of the elite or not.
This year's Hall of Fame vote took place this week, with only Bruce Sutter earning election. Under Hall of Fame rules, any player with 1) at least 10 years of major league experience and who 2) passes a preliminary screening committee is eligible to be elected by long-time members of the Baseball Writers Association of America ("BBWAA"). Players only gain election if they receive at least 75% of the casted ballots, while those who receive fewer than 5% are dropped from future elections. Players receiving between 5.0% and 74.9% of the ballots remain eligible for the following year's vote. If a player fails to obtain membership under this system, he may still be elected by the "Veterans Committee"--a group of living Hall of Famers--provided he fails to be elected by the BBWAA within 20 years of his retirement. The Veterans Committee votes every two years.
Should a player be able to become "Hall of Fame worthy" when he has already been rejected? After all, he was retired when he was first rejected; what could he have possibly done in the interim to enhance his already-complete playing career?
Well, I imagine there are several arguments in favor of this system. Obviously, one might argue that statistics are viewed differently in different eras, and a player should not be penalized for playing in a particular era. A good example of this might be when homerun records were broken in the late 90s, and 35 homeruns in a season no longer seemed very impressive, but now that homeruns have dropped down a bit, perhaps 35 homeruns becomes impressive again.
Another obvious reason is that "electibility" often depends on the other names on the ballot. Why should an "almost-outstanding" player be denied eligibility in a year when there are three or four outstanding candidates while, in another year, a player with identical credentials might "squeak in" when surrounded by a weaker field of candidates? For instance, while former Red Sox great Jim Rice (pictured above) failed for the 12th time to gain election into the Hall of Fame this year, he did much better this time around in part because he was among a less-than-stellar group of candidates.
A more subtle reason may rest in the expected characteristics of voting. According to the Hall of Fame, "voting shall be based upon the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played." Are "integrity, sportsmanship, and character" limited to
when the player played in the big leagues, or are we to read those attributes as not connected to the word "contributions"? I'm not sure, but if not connected, then presumably a player may become more "hall-worthy" by enhancing his "integrity, sportsmanship, and character" after his career ends.
But the opposing view may also prove compelling: Shouldn't Hall of Fame players stand out regardless of time or era? Why have a Hall of Fame if it is so situationally-dependent?
Which side do you take: should players be eligible for only one year, or should they remain eligible in future years?
Posted By : Michael McCann
Athletes and the criminal justice system
Message posted on : 2006-01-11 - 16:26:00
Do athletes get preferential treatment in the criminal justice system? That was a question being asked by some in the aftermath of Jeff Burns' arrest by Boston police for driving under the influence of alcohol.
Burns, a 22 year old back-up defensive end, was arrested in late December after allegedly spending a night on the town drinking. Reports indicate that Burns then got behind the wheel of his car and crashed it into a stone wall. Officers smelled alcohol on his breath and arrested him after he failed several field sobriety tests. When Burns posted bail, he was ordered to appear in court on Dec. 26. The problem was that he was scheduled to be in Idaho that day to prepare for the MPC Computer Bowl (which by the way is a meaningless bowl game played in Boise on a blue carpet).
Without the permission of a judge, Burns hopped on a Boise-bound team plane the day before his arraignment. It was not until the team arrived in Idaho that he informed the school of his scheduled court date. Rather than issuing a warrant for his arrest when he failed to appear in court, Burns' court date was rescheduled. Some lawyers argued that Burns got special treatment because he played on a high-level college program. They contended that under normal circumstances if a person didn't show up for their arraignment, a judge would issue a warrant for their arrest.
Others were infuriated that the coach didn't send him directly back home to honor his court appearance and instead allowed him to play in the game. Burns' lawyer and other prominent criminal defense attorneys have indicated that short continuance dates like the one given in this case are common place and that Burns is actually being vilified because he is an athlete.
Posted By : Scott Gilefsky and David Frank
The Arrogance of the NFL and Other Lessons Learned in 2005
Message posted on : 2006-01-10 - 22:37:00
As 2006 enters its second week, it may be instructive throughout our stint as guest bloggers to pause and look back upon some of the more interesting legal issues or stories in the worlds of sports in 2005. As co-hosts of Sports Court, a weekly radio show, we had the good fortune of examining many topics. Although, given the time constraints of our show, admittedly we did not delve into our topics as deeply as we would have liked. Additionally, our “during the week jobs� do not always allow to examine legal issues in the world of sports.
In any event, the NFL's arrogance in two separate cases was quite notable. First, the NFL showed how little it does to protect its players during the course of the suit brought by Kelci Stringer, the widow Korey Stringer. As you many will recall was an offensive lineman for the Minnesota Vikings. He passed away during training camp in 2001. As the indicated by family attorney Paul DeMarco of Waite, Schneider, Bayless & Chesley, the standard of care that Stringer received in the moments leading up to his death was tragically inadequate. DeMarco related his frustration in dealing with NFL. One cannot blame that the NFL for being defensive about actions that may have occurred and for being diligent in its defense. However, from what we have seen, the league has done little to improve the quality of care or to issue any significant guidelines. How many more tragedies will occur before the league acts to protect its players?
In Tampa, high school civics teacher Gordon Johnston was offended by the notion that he would be subject to pat-downs on the way into Raymond James Stadium prior to a Tampa Bay Buccaneers game. Surprisingly, Circuit Court judge Perry A. Little agreed that the searches violated Johnston's Constitutional rights. As a result Johnston won injunctive relief. We are not aware of the current status of the case, however, thanks to the Tampa Bay "offense" the issue is no longer urgent.
What was curious in that case was what we learned about the NFL's policy relative to pat-downs. Apparently the league required additional security measures, but at the expense of whatever entity operated the stadium. As a result, the taxpayers in Tampa were left with significant additional cost. Faced with this reality, one politician argued the merits of complying with the new policy, reminding his colleagues that to do otherwise could damage Tampa's relationship with the NFL prior to hosting the 2009 Super Bowl. The NFL apparently received similar cooperation in most other venues, thereby allowing the league to pass along the cost of the added to security to already cash-strapped public agencies.
Posted By : Scott Gilefsky and David Frank
A Juke Move on Voters? Sports Acclaim and Becoming a Lawmaker
Message posted on : 2006-01-09 - 06:44:00
Gwen Knapp, a columnist for the San Francisco Chronicle, wonders when former star female athletes will rise to political power like former star male athletes have. (Knapp, "When Will a Woman Leap from Sports to Political Arena?," San Francisco Chronicle, 1/8/2006). Knapp reasons that females with prior athletic achievement might enjoy political advantages over other females seeking office:
Female athletes have at least one advantage over other women running for national office. They are less likely to be perceived as soft on defense issues, because they haven't spent all of their public lives in tailored suits and expensive makeup. A star female athlete can show highlight tapes from her playing career, chasing a rebound or a soccer ball with bloodlust written her in eyes and sweat trickling down her forehead.
I'm not sure that I agree with Knapp. Does anyone really regard Hillary Clinton as "soft on defense" because she never played sports? Conservatives and liberals doubtlessly employ very different adjectives when describing Senator Clinton, but I suspect neither side claims that she is "soft" on any issue, let alone because of an absence of past athletic prowess. I suspect the same could be said of other prominent female politicians. Would U.S. Senator Diane Feinstein's opposition to the Iraq War really enjoy greater support if she had, for instance, played basketball while attending Stanford University? For some reason, I don't think so.
Knapp's column does, however, bring to mind a broader question:
why do voters even elect former star athletes? Knapp correctly notes that "renowned athletes do extremely well in the political arena" and for that reason, former star female athletes might likewise enjoy a tactical advantage. Just consider some of the former star athletes who have risen to political power:
-Jack KempFormer Buffalo Bills' quarterback who served in the U.S. House of Representatives and later became Secretary of Housing and Urban Development under President George H.W. Bush. Also was the Republican Party's nominee for Vice President in 1996.
-Bill BradleyHall of Fame forward for the New York Knicks who became a U.S. Senator and later the runner-up to Al Gore for the Democratic Presidential nomination in 2000.
-Steve Largent (pictured above)Hall of Fame wide-receiver for the Seattle Seahawks who now serves in the U.S. House of Representatives.
-Jim BunningHall of Fame pitcher for several MLB teams who now serves in the U.S. Senate.
-J.C. WattsFormer championship quarterback for the University of Oklahoma who served in the U.S. House of Representatives.
-Lynn SwanMVP of Superbowl X for Pittsburgh Steelers who is now seeking to become Governor of Pennsylvania.
The list above could also be expanded to include well-known former coaches who have risen to political prominence (e.g., U.S. Rep. Tom Osborne used to coach the Nebraska Cornhuskers). Or it could be expanded to include any ex-jock who received at least some acclaim at some point or perhaps even ex-cheerleaders (e.g., President George W. Bush and U.S. Senator Trent Lott were
on the cheerleading squads for Yale University and the University of Mississippi, respectively). In any event, the list above will likely enjoy future additions, as a number of current star athletes appear to possess political aspirations. New England Patriots quarterback Tom Brady, for instance, has repatedly spoke of his
post-NFL career political ambitions.
But isn't it rather odd that voters seem to infer governance acumen from sports achievement? Really, is there any connection between an ability to hit a receiver going out to the flat and understanding Medicare? Or knowing when to box-out and knowing how to assess the competing interests in the ANWR drilling debate? Or how about excelling at playing safety and excelling at ensuring safety? I guess one might argue that star players learn important leadership and teamwork skills, as well as insight on dealing with the media and fans. Perhaps those are useful skills for raising money, and perhaps they serve them well in making friends when they get to Washington, but I'm not sure they serve the interests of voters or public policy in general. Of course, that is not to say that former star athletes cannot do well as lawmakers or government executives, as some of those listed above have earned admiration for their political work.
But then again, perhaps this phenomenon is not so much about sports as it is about celebrity: Americans--and especially Californians--seem to enjoy electing celebrities who have minimal or no political experience (see e.g., Ronald Reagan, Arnold Schwarzenegger, Sonny Bono, Clint Eastwood, Jesse Ventura, Fred Grandy, and perhaps also John Glenn).
Oh well. At least we aren't
Italian voters.
Malaise and Third Year of Law School
Message posted on : 2006-01-06 - 06:43:00
According to a new study by Indiana University at Bloomington's Center for Postsecondary Research, third-year law students come to class less prepared, are less likely to discuss legal issues outside the classroom, and work less hard generally than their first-and second-year counterparts (Paula Wasley, "Law Students Slack off in their Third Year," Chronicle of Higher Education, Jan. 4, 2006--subscription only). The authors complied feedback from 28,000 law students about their law-school experiences; their participation in co-curricular activities, like pro-bono service or work on a law journal; their professional goals; and their levels of satisfaction with their programs of study. The actual study is available here.
So why is third year of law school an apathetic period for many law students? Are they simply burnt out? Do they find law school to be a year too long? Do they no longer care because they have jobs? Do they no longer care because they are consumed with getting a job? Do they no longer feel that they can significantly alter their GPA? Are they worried about looming debt payments? Are they dissatisfied with course offerings, and wish there were more courses that pertained to their interests?
Personally, I think wide-spread apathy is a sign that fault should lie more with the schools than the students. One possible change might be to place greater value on student course interests. Just take sports law, a course that I suspect many law students very much want to take, and one that I was fortunate to have taken (twice, actually, once with Paul Weiler and the other time with Donald Dell). Many law schools do not offer sports law or offer it only infrequently. I'm sure there are other would-be popular course offerings that seldom exist, like "film and the law" or "media and the law" or "age and the law" (I would at least find those to be interesting courses).
Why do you think third-year law students become so indifferent toward law school, and what can be done about it?
Update 6:00 PM: Would a fourth-year of a law school cure the third-year malaise? Professor Gregory Bowman thinks so.
Posted By : Michael McCann
Sacrificial Gyro? Pete Carroll's Big Fat Greek Recruiting Methods
Message posted on : 2006-01-05 - 06:14:00
University of Southern California compliance officials are investigating allegations that its football team--losers of last night's Rose Bowl--have surreptitiously used the Papadakis Tavern in San Pedro, California as a recruiting tool under the guise of a school-informational forum. (Gary Klein, "USC Starts Recruit Inquiry," Los Angeles Times, 1/1/2006). The Greek restaurant is owned by John Papadakis, a former USC linebacker who is active in alumni and athletic affairs.
So what happens when USC recruits show up at the Papadakis Tavern? Allegedly, they are entertained by belly dancers, music, food (obviously), and, of course, the traditional breaking of the plates. Mr. Papadakis is also said to deliver "passionate" speeches about the USC football program, although in his defense, he claims that he entertains recruits of several Pac-10 schools, and he denies endorsing any of the schools. As a former USC player, Papadakis is considered a "representative of athletic interests" on behalf of USC, which, among other things, precludes him from recommending the school to its recruits.
Even assuming the "worst" of Papadakis, are we really to believe that former players of college football teams do not routinely champion their schools, or at least provide favorable advice? Just think: if you were a superstar high school football player deciding between top college programs, whom might you turn to for more information about those programs? I wonder . . . might you turn to former players on those teams? Oh the horror. I only wish the NCAA could prevent every high school senior admitted into college from speaking with graduates of that college, or every law school admittee from speaking with graduates of their accepted law schools. Heck, maybe we can prevent every former person of every organization from speaking with anyone who might enter their former organization. That would accomplish so much.
Really, is Mr. Papadakis such a bad guy? A former college football player who speaks favorably about his college team just doesn't strike me as someone out-of-the-ordinary. If he were buying Corvettes for recruits that would be another story, but provided USC pays for the meals and entertainment (and assuming those meals/entertainment adhere to other NCAA rules), I just don't see the outrage. I also don't see how the "representative of athletic interests" rule is enforceable in most settings--I know the government can wiretap phones, but I don't think the NCAA can.
Posted By : Michael McCann
Legal Aftermath of New NBA Age Limit
Message posted on : 2006-01-04 - 10:28:00
Travis Sawchik of the Myrtle Beach Sun News has an extensive piece on the effects of the new 1-year out-of-high-school age limit on premiere high school basketball players. (Sawchik, "The Waiting Game," Myrtle Beach Sun News, 12/29/2005). If eligible for the 2006 NBA Draft, it is widely-presumed that Greg Oden (pictured to left) would be the first pick, and Thaddeus Young would likely be a top 10 pick as well. Absent a legal challenge, of course, these players will not be eligible, as the NBA and NBPA collectively-bargained away that possibility (and neither these players nor their families had a seat at the bargaining table).
I was interviewed for this story regarding a potential legal challenge. Though the new provision was collectively-bargained, that does not accord it absolute immunity from legal scrutiny (especially if a prospective challenge is heard in a different federal appellate court of appeals than the U.S. Court of Appeals for the Second Circuit, which heard Clarett v. NFL). Also, a prospective lawsuit by a high school player or group of high school players should be considered materially different from Maurice Clarett's lawsuit, since we've already seen high school players jump to the NBA, and they average more points, rebounds, and assists than the average NBA player or the average player of any age group. I also express a philosophical opposition to legally treating monopsonistic leagues and exceedingly-wealthy players the same as competitive companies and working class union members. We're not even comparing apples and oranges; it's more like caviar and fruits.
"Clarett had to argue a hypothetical," McCann said. "Basketball players wouldn't have that issue; basketball has had 10 years of data. Basketball players can say we're not arguing a hypothetical. We have gone to the NBA and have had success."
According to a research paper written by McCann and published in the Virginia Sports and Entertainment Journal, an NBA player who jumps from high school can make up to $100 million more during his career than if he earned a college degree first.
McCann also questions the legitimacy of pro sports unions bargaining away future players rights.
"There is incentive for existing players to watch out for their own interests," McCann said. "It's one thing if you have a union of factory workers ... but sports leagues are monopolies [monopsonies, more precisely], you can't play anywhere else for similar compensation."
So should the law treat Ford Motor Company, one of many automakers, the same as the NBA, which has no rival? And should millionaire NBA players, whose average career lasts just four years, be treated the same as Ford assembly-line workers, who might work for 45 years and never earn what some NBA players earn in one year?
Posted By : Michael McCann
Can Player Statistics Be "Owned"?
Message posted on : 2006-01-03 - 10:56:00
Over the weekend, the LA Times featured an article outlining the debate between fantasy baseball leagues and Major League Baseball. In essence, MLB is claiming a right to the intellectual property of player statistics and is demanding that fantasy leagues obtain a license to use these stats. One fantasy league has responded by suing MLB, seeking a declaratory judgment that baseball has no right to the statistics. The issue, of course is money -- specifically the hundreds of millions of dollars spent on fantasy sports each year.Sixteen million Americans played these games during 2004, spending about $200 million on league registration fees, according to the Fantasy Sports Trade Assn. Some leagues now offer a $100,000 grand prize.
CBC argues that it has a right to use statistics without obtaining a license.
"What we're dealing with is historical data," said attorney Rudy Telscher, who represents CBC. "The minute a game is over, these are historical facts. And, to my way of thinking, the public ought to be able to use historical facts without having to compensate players or the league."
The 1st Amendment protects the right of media companies and others to use game statistics to tell the story of a game from the first pitch to the last out, or from tipoff to final buzzer.
Baseball, in court filings, maintains that intellectual property law makes it illegal for the fantasy league operator to "commercially exploit the identities and statistical profiles" of big league players.
(Johnson, "Suing over Statistics," LA Times, 01/02/06). MLB does not appear to have a strong argument in this case. While the recordings of the games themselves are protected, statistics are just one way of reporting what happened in the game, only using numbers instead of words. And what of the many statistical formulas that were invented by Bill James of Stats, Inc., and Pete Palmer of Total Baseball? Can MLB claim ownership of these stats?
MLB's case appears to be another attempt to abuse intellectual property law for monetary reasons. Intellectual property is not "real" property -- it is not owned. It should be a license granted by the law to reward inventors and creators and give them a temporary right to capitalize on their creation and thus, encourage more creation. MLB has not created anything in this case, so why should the law allow the league to profit?
UPDATE: As Alan Schwarz points out in the comments and in his excellent article in Legal Affairs ("$tats," Nov/Dec 2005), the issue is whether the players' names can be associated with the statistics for commercial gain. This legal question, termed the 'right of publicity,' allows celebrities to prevent their names and likenesses being used without permission for commercial gain.
One example is the Yogi Berra v. TBS lawsuit from last year (2/2/05) (the suit dealt with other issues as well). Another is the suit between Tiger Woods and an artist that depicted him in a painting of historical golf moments, discussed in a 4/1/05 post.
This leads me to another question: what if the fantasy leagues did not use a player's name or a likeness? For instance, what if my fantasy NBA team had LAL #8 and CLE #23, along with the associated stats? Would this violate the right of publicity? There are certainly celebrities associated with those numbers, but is this enough? And if so, where is the line drawn between the right of publicity and the right to gain from public
information?
Posted By : Greg
Is NASCAR Killing Hunting?
Message posted on : 2006-01-03 - 08:08:00
In the current issue of Washington Monthly, Christina Larson examines why hunting has diminished in popularity over the last decade. (Larson, "The End of Hunting?," Washington Monthly, January/February 2006). In some states, like Iowa, the number of hunters has declined by as much as 25 percent. Nationally, over the past two decades, the percentage of American "sportsmen"--men and women who hunt or fish--has tumbled from 26 percent to 18 percent; the absolute number of sportsmen has fallen from 50 million to 38 million.
Larson identifies land access, or lack there-of, as the primary reason for the decline: a combination of suburban sprawl and heightened suspicion of gun owners have made it more difficult for hunters to find land to hunt on, and that has animated a number of them to hang up their guns. In passing, she also mentions the growth of NASCAR, and observes that it has grown precipitously at the same time hunting has declined. I should be clear: Larson does not posit the growth of NASCAR as a reason for the decline of hunting. Just the opposite, actually, she characterizes NASCAR's surging popularity as a possible reason why hunting won't become extinct (with the presumption, I guess, that hunters and NASCAR fans are often the same or have much in common).
But I wonder if the contemporaneous decline of hunting and rise of NASCAR are somehow connected? Do persons who would have previously gone hunting now find watching NASCAR to be the more enjoyable leisure activity, or are these two sports sufficently unrelated? And are NASCAR fans really the same guys (and gals) who go hunting, or is that a classic case of Northern bias?
Posted By : Michael McCann
Johnny Pesky on Life Without a MLB Draft
Message posted on : 2006-01-02 - 19:25:00
Last week, Alan Milstein proposed that the NFL Draft be eliminated. He examined its anti-competitive effects and noted how troubling most of us would find it if we couldn't pick our employer or even location of employment. A number of commentators argued against this position, claiming that big-market teams would dominate the signing of amateur players. Earlier today, I happened to be reading an interview with former Red Sox great Johhny Pesky, for whom Fenway Park's "Pesky Pole" is named. His response to a question by David Laurila of Red Sox Nation reminded me of last week's debate:
David Laurila: Tell us about signing with the Red Sox [in 1940]?
Johnny Pesky: Back then, you could sign with anybody -- there was no draft yet. There were a number of teams interested in me, and some offered more money than Boston. My mother and father wanted me to sign with the Red Sox, though, because their scout brought her flowers when he came to the house -- and bourbon for my father. They were immigrants, and even though it was the Depression, that was more important than the extra money. I'm glad it worked out the way it did.
An anecdote for a time long ago? Sure. But perhaps the elimination of drafts wouldn't be the end of pro competition. Perhaps amateur players, like all of us, would think seriously about non-monetary factors in where they would play. And in the case of Pesky, those non-monetary factors happened to include flowers and bourbon for his parents.
Posted By : Michael McCann
Where have you gone, Johnny U
Message posted on : 2006-01-02 - 00:02:00
Now that the regular season is over, the Colts seem poised to run through the NFL playoffs and win their first crown since . . .
How do I finish that? Is it their first crown ever? Or is it their first since 1971 when Jim O'Brien kicked that overtime field goal for my beloved Baltimore Colts, thirteen years, three months and twelve days before owner Robert Irsay broke Baltimore's heart and stole the Colt's away in the middle of the night.
If you've seen the movie Diner, you know Baltimore's love of the Colts ran deep, approaching almost a religious devotion at a time when football took a second seat to baseball as the national pastime. Not in Baltimore. Even when the Orioles were the best team in the land, despite divine intervention in1969 on behalf of the Mets, baseball just filled time in Baltimore until Johnny U and the Colts took Memorial Stadium back in the fall.
When the Colts moved to Indianapolis, the fans were rightfully bitter. My father wouldn't watch any football for decades. Even when Superbowl Sunday became a National Holiday, he would choose that week to vacation in the Caribbean outside the NFL's orbit. The Baltimore Colts Marching continued to practice and show up at Baltimore events, playing the familiar “Let's go, you Baltimore Colts, and put that ball across the line,� the tune Steve Gutenberg's character in Diner insisted be played when he and his bride walked down the aisle. And Johnny Unitas, a Baltimore deity, announced he would not allow Indianapolis to retire his jersey (they did anyway) or claim his records (the 27 game streak with a touchdown pass still stands and will never be broken).
What did Irsay say to the fans who had given the team their devotion all those years: “It's not your ball team. It's my family's. It's mine.� What did the NFL do to prevent such injustice? Nothing. In fact, there was little it could do. When Al Davis pulled the same stunt, announcing he was moving the Raiders south to L.A., the NFL tried to stop him. He and the L.A. Coliseum filed an antitrust claim against the league and won because, the Court ruled, the league was not a single entity but a collection of separate entities that could not unlawfully combine. See L.A. Memorial Coliseum v. NFL, 726 F.2d 1381 (9th Cir. 1984). Amazingly, the league tried this same defense in the Clarett case, but that's the one defense that failed.
So what is an old Colt fan to do? Is it time to bury the hatchet and embrace this fine team with its great coach and classy quarterback? After all, they are the Colts. They wear the same uniforms with the horseshow on the helmet.
Nah.
GO SEAHAWKS.
Posted By : Alan C. Milstein
Despite Several Triple Axels, 15-Year-Old Mao Asada Barred From the 2006 Olympics
Message posted on : 2005-12-30 - 10:15:00
Within hours of posting on the age eligibility "summit" held a couple of weeks ago (see below), I came across another germane news story that broke yesterday. Japanese figure skater Mao Asada has been barred from competing in the 2006 Winter Olympics in Turin, Italy because of her young age. The International Skating Union, the relevant governing body, requires that all Olympic and World Championships competitors be at least 15 years old by the previous July 1 to be eligible.
A good summary of Ms. Asada's on-ice exploits is on SI's website. The quotes in the SI article attributed to Ms. Asada indicate that she does not intend to fight the age rule in Japan or elsewhere, despite here status as one of the best figure skaters in the world. Similarly, Japan's skating federation probably won't further her cause in connection with the '06 Olympics given that it voted for the 1996 amendment to the ISU age rules. Surprisingly, Ms. Asada's strongest supporter may be Junichiro Koizumi, the Prime Minister of Japan. When I researched this issue years ago, I focused my research on USA antitrust laws. A survey of antitrust laws (or whatever they are called outside the USA) on an international basis would shed light on whether an aggrieved party could forum shop or race to a (favorable) courthouse. Hmmm...did I just come up with an idea for my next law review article?
Posted By : Ryan M. Rodenberg
Reggie Bush Sweepstakes
Message posted on : 2005-12-29 - 14:20:00
Oh those NFL schedule makers. How do they do it? The final week in the NFL pits Houston against San Francisco with so much at stake one can barely watch the game. The loser, of course, wins the Reggie Bush sweepstakes, a prize more valuable than any division crown. In this season of watching fans root for their team to lose, it's time to challenge the bedrock assumption of the American professional sports monopolies: the necessity of a college draft with the worst teams getting the top picks.
The rationale has been the subject of so much propaganda no one challenges the concept: We do it for the fans; otherwise the same teams will get all the best players and win every year and the smaller market fans will have nothing to root for.
Bull.
Actually, the more accurate term is monopsony not monopoly since the leagues control the buying of talent not the selling: they are the only source to which the players may sell their services.
But why shouldn't Reggie Bush be able to market his considerable talent to the highest bidder or, heaven forbid, live and work in a city of his choosing with professionals with whom he chooses to associate. Isn't that what the rest of us get to do when we look for a job?
Let's look at that assumption again. The NCAA, with all its other faults, does seem to operate rather competitively without a draft of high school players to the colleges in reverse order of how they finished the prior year. Each year the upsets in the NCAA basketball tournament make your picks in the office pool worthless by the Sweet Sixteen. Even if Duke does seem to get more than its share of All-Americans, it does so by offering the most to its recruits: a great coach, a quality education, a history of not simply using its young talent but helping them grow into quality human beings. Shouldn't college athletes get to choose their employers by similar criteria?
The English and European soccer leagues stay competitive without the privilege of monopsony power. So does virtually every profession outside of the American sports world. The truth is: the reason for the draft is to control competition in the market not on the playing field. So the top players can't field offers from those otherwise willing to pay them what the free market says they are worth. That is what monopsonies do and, except in the American sports world, that is why they are illegal.
Posted By : Alan C. Milstein
Age Eligibility Rules in Pro Sports - Conference #2
Message posted on : 2005-12-29 - 13:15:00
A few weeks after Sports Law Blog contributor Mike McCann spoke at a conference at Case Western Reserve School of law pertaining to eligibility rules in pro sports, leaders of several sport governing bodies convened in at the W Hotel in New York City for the same reason. The title of the forum was "Professional Athlete Forum of Phenoms to Professions: Successful Transitions." Speakers included (from left): NBA Deputy Commissioner Russ Granik, NHL Commissioner Gary Bettman, LPGA Tour Commissioner Carolyn Bivens, WTA Tour head Larry Scott, and MLS chief Don Garber.
Although I wasn't able to attend, I did read a great summary of the event penned by Bob Seligman, a correspondent for the Sports Business Daily. Among other things, the conference attendees discussed the timely issue of Morgan Pressel, a promising 17-year-old golfer seeking a waiver from the LPGA's minimum age rule requiring that all full-time players be at least 18. Shortly after the forum (or perhaps it was decided beforehand), the LPGA Tour granted Pressel full membership on tour for 2006.
In my previous life as a lowly law student, I published an article on this issue in the Sports Lawyers Journal, a publication out of Tulane University School of Law. With two high-profile conferences in a single month, it is apparent that the issue of age eligibility issues in pro sports is a timely one. In 2006, it will be interesting to see if a "perfect plaintiff" emerges to challenge an age rule. Stay tuned...
Posted By : Ryan M. Rodenberg
Matters of Coverage
Message posted on : 2005-12-29 - 07:10:00
Head athletic trainers (AT) and athletic directors (AD) at universities and high schools face several challenges when it comes to ensuring the safety of their athletes. Facility safety, emergency care responses, and pre-participation physicals are all examples of administrative responsibilities that can impact player safety.
One additional administrative challenge that is especially interesting from a legal standpoint is the issue of appropriate medical coverage. In other words, if you're the AD at Arizona State University, how do you decide how many ATs you must employ in order to reach an appropriate level of medical coverage across all practices and events? If you're the head AT, how do you decide to make coverage assignments for your group of AT employees? How you decide how many ATs to assign to Fall football, swimming, soccer, etc.?
What about the high school? In most cases, high schools employ only 1 (if any) full-time ATs who are then responsible for the medical care of all student athletes. At many large high schools, several hundred student athletes might be active simultaneously, many of whom might be practicing or playing at remote sites. How do you decide what event you should physically attend and how do you stay in touch with the others?
The goal in both settings is to make informed decisions about medical staff placement based on knowledge of 1) the intensity of the sport (e.g., collision vs. contact vs. non-contact), 2) the injury rates in the sport, and 3) the likelihood of catastrophic injury (e.g., severe head / neck injury) in the sport. This is why, in most cases, the lone high school AT will always cover football while ensuring other sports can be in contact with him by cell phone or walkie-talkie. On the other hand, because universities tend to have a little more money, each major sport will usually receive the coverage at least one AT. Sports like football will be covered by a small army of medical staff for the reasons I identified above, and because of the large numbers of players on a typical university football team.
You can imagine, however, that if high school Sally, a freshman girls basketball player is injured, and medical response to her injury is delayed because the lone AT must run, or golf-cart, or even drive from one facility to another, and if that delay contributes to increased morbidity or mortality of the injury, Sally (or her parents) are going to wonder why the AT of AD didn't take steps to ensure a more immediate response for their daughter? Yes, there is an expectation that coaches can serve as first responders and provide at least basic 1st aid & CPR, but many athletic injuries or illnesses can overwhelm those responses very quickly.
To provide some formal structure and decision making tools for these situations, the National Athletic Trainers' Association (NATA) created relevant guidelines and recommendations in the form of two documents: Recommendations and Guidelines for Appropriate Medical Coverage of Intercollegiate Athletics and a Consensus Statement on Appropriate Medical Care for the Secondary School-Age Athlete.
I'd recommend you take a look at these. First, notice that we're dealing with recommendations, guidelines, and a consensus statement. The NATA was not looking to create policy (nor could they), but certainly these documents could
be used to establish a standard of care. Second, appropriate medical coverage is defined much more broadly than the 3 guiding principles for coverage I mentioned earlier. Third, you'll notice some striking differences between the two documents. The first takes an almost formulaic approach to the issue. The second is more brief and seeks to establish the characteristics of appropriate medical coverage and who is capable of providing such coverage.
To my knowledge, neither has been used in formal legal action. A matter of time, I suppose.
Posted By : Caseycro
Woody
Message posted on : 2005-12-29 - 07:05:00
I'm originally from Ohio, and all Ohio natives, by law, must root for Ohio State or risk deportation to that state up north.
We also have an unending (and many would say unhealthy) love affair with Woody Hayes. So, although today's a happy day for me personally (it's my birthday), it's also the anniversary of the infamous Woody Hayes punch, which lead to his immediate dismissal and the end of the most successfuly period in Ohio State football history.
So, especially for all you Michigan fans recovering from last night's stinging defeat to Nebraska, enjoy this NYT story, and Go Bucks!
Posted By : Caseycro
Alan Milstein's History of Sports and the Human Condition
Message posted on : 2005-12-28 - 12:08:00
Alan Milstein, an attorney at Sherman, Silverstein, Kohl, Rose & Podolsky who has litigated on behalf of a number of athletes, including Maurice Clarett, as well as medical patients, has published Out of the Park: A History of Sports and the Human Condition. Co-authored by Attorney Michael Dube, Out of the Park canvasses the history of sports dating back from 777 BC (with the first records of the Olympics) to December 15, 2005 (with the University of Buffalo hiring Turner Gill as the fifth black coach in Division 1A football). The 45-page time line includes pictures and photos, and offers extraordinary detail on how sports has evolved in the realms of the law, medicine, psychology, sociology, and economics.
Out of the Park is an outstanding resource. Be sure to check it out.
Posted By : Michael McCann
iPod oblivion?
Message posted on : 2005-12-28 - 05:40:00
Dan Lothian of CNN documents the problem of "iPod oblivion" - the self-induced spaceout experienced by iPod wearers and how it's making them easy targets of petty crimes. There must be legal ramifications for Apple, no? So, I'm just wondering how long it will take for the first lawsuit to be filed. Surely, someone will claim that the iPod is a new kind of "attractive nuisance" (I use the term loosely) that lulled them into a sense of complacency where they were then taken advantage of by lurking criminals. Surely, Apple has an obligation to warn users of the fact that when "under the headphones", they are at an increased chance of falling victim to crime?! When will Griffin invent an iPod add-on that eliminates this dangerous and costly inconvenience??!!
And if that wasn't enough of a legal risk for Apple, consider the debilitating iPod finger
injury. Ouch! The British Chiropractic Association had taken special concern with this ailment. They warn "Handheld music machines are extremely popular and users are constantly using small, difficult buttons with the same finger in a repetitive motion"
Hmmm. . . So, for all of you new iPod and Blackberry owners, and surely there must be many among the readers of this blog, consider the following safety precautions as your sports, er. . .communication technology health tip of the day:
- Use a neutral grip when holding the device – meaning the wrist is straight, not bent.
- Take a break every hour. Overuse of repetitive motions can cause tendinitis or lead to carpal tunnel syndrome.
- Place pillows in your lap and rest your arms on them. This allows you to keep your head in a more upright position and decrease neck strain.
- Any old chair won't do. Sit in a chair that allows you to put your feet on the floor and provides good back support.
- Ambidextrous is a good thing. Switch hands frequently.
Posted By : Caseycro
Dreamcatcher: University High School to Abruptly Close on Dec. 31
Message posted on : 2005-12-27 - 19:48:00
This field, this game, is a part of our past, Ray. It reminds us of all that once was good, and that could be again. Oh people will come, Ray. People will most definitely come.
Well, at least they came to University High School for a while. As we discussed last month, University High School in Miami has served as an academic field of dreams for many high school football players who sought to pave their way to college football scholarships by taking high school courses in which they knew that if they studied hard and gave it their all, they would do well. The problem was that they also know that if they didn't study--at all--they could simply look up the answers in the back of the book and get straight As. And they didn't have to show up to class either, because there were no classes. All they needed was $399 and the ability to look up answers in the back of the book. Colleges didn't care, because they knew these football players would make a lot of money for them and the NCAA in ticket sales, merchandise, and videogame licensing deals (which, I suspect, is the same reason why the NCAA happened to overlook this racket until the New York Times exposed it last month). It worked great for everyone -- at least until too many University High grads showed up at places like Auburn and Florida State and couldn't handle the work (not surprising, since they couldn't handle high school work).
And therein lies the problem for the University High School, which has become a too-obvious haven for colleges seeking premiere high school talent, but talent that could not do well in legitimate high school settings. Until the New York Times' expose, however, University High School had prospered as a place where GPAs could somehow rise from failing to spectacular in the span of a month, and where colleges could nominally satisfy NCAA requirements in dispensing scholarships to top athletes.
But under increasing pressure from both creditors and Florida law enforcement officials, University High decided last week to close its doors this Saturday. Duff Wilson of the New York Times has the story. Here are some excerpts:
University High School, a correspondence school in Miami being investigated for giving fast, high grades to qualify high school athletes for college scholarships, is going out of business Dec. 31, its founder, Stanley J. Simmons, said yesterday. "It's a disaster," Simmons, 75, said in a telephone interview from his Miami home. "I'm finishing up everything, and I'm going back into retirement."
The National Collegiate Athletic Association yesterday named 17 people to a panel to study correspondence high schools and other nontraditional routes to college athletic eligibility and scholarships. The move is a response to questions about the legitimacy of the academic credentials of some high school athletes . . .
Simmons, who founded the school in 2000, said he had sold it about 14 months ago to Michael R. Kinney, 27, of Miami, who had operated it for him for years. Simmons said Kinney defaulted on his monthly payment after The Times
wrote about the school last month, prompting state investigations.
Simmons said the school was "totally mismanaged - probably more than mismanaged" - and also that Kinney was responsible for the venture to help high school athletes qualify for N.C.A.A. scholarships. "There's no way that I would consider remaining in the business," Simmons said.
Simmons wrote a letter for the remaining students, telling them to pay their fees and finish their tests before Dec. 31. The letter concluded, in all upper-case letters, "If you are serious about receiving your high school diploma, we recommend that you act now!"
Not so good times at University High.
Hat Tip: Sports Law Blog reader Lance Mixon for alerting me to this story.
Posted By : Michael McCann
Local drug testing news
Message posted on : 2005-12-27 - 08:56:00
In a previous post to this blog, Greg Skidmore shared some important legal information concerning mandatory randomized drug testing of high school athletes. The legal cases he cites are the same cases I share with my athletic training students to establish the legal foundation for testing activities. Athletic trainers will often be included in the creation of these testing policies, are usully in the "need to know" loop on positive tests, and at some levels (college, olympic), athletic trainers are often intimately involved with many aspects of the testing procedures (e.g., sample collection). It's an important topic on which they must be informed and for which they must have an opinion.
Over the past 12 months, the issue has receiving increased attention in the local Phoenix metro area. For example, in response to a drug-related car crash involving four high school athletes, the Scottsdale (AZ) Unified School District, with pressure from Maricopa County Sheriff Joe Arpaio, has been considering a mandatory drug testing system since the Spring, 2005. A brief review of the past 12 months worth of Governing Board meetings shows no evidence that a policy has yet been implemented. However they have implemented school-wide drug-sniffing canine programs which will affect all students. Phoenix Union School District is considering a similar drug testing plan, but the Mayor and others have recieved much public resistance about the appropriateness and legality of such a testing system, although legality appears to be fading as a relevant issue.
Case in point: within the past two months, the Chandler (AZ - a suburb of Phoenix) Unified School District has successfully implemented a mandatory drug testing program for three of its high schools. This program, funded by a grant from the U.S. Department of Education, goes into effect in January, 2006. Expected outcomes for the program include:
- Program empowers students to have a socially acceptable reason to decline using illegal drugs.
- Students participating in sports and non-athletic activities governed by the Arizona Interscholastic Association will set a powerful example for the entire student body.
- Drug use will decline
- Random drug testing will create a safer environment for all athletes
- Reinforces the opportunity for rehabilitation if needed
First, consider the last three bullets. In general, the jury is still out about the eventual likelihood of these outcomes, and perhaps CUSDs program will help contribute to a growing body of literature on the topic. But to date, the current literature does not suggest that these programs are as effective as some might hope. Consider, for example, a recent study by Yamaguchi, Johnston, and O'Mally (Journal of School Health, April 2003, Vol73, No. 4, pp. 159-164). After surveying 30k 8th-graders, 23k 10th-graders,and 23k 12th-graders, they conclude:. . .drug testing was not associated with eitehr the prevalence or the frequencey of student marijuana use, or of other illicit drug use. Nor was drug testing of athletes associated with lower-than-average marijuana and other illicit drug use by high school male athletes. Even among those who identifeid themselves as fairly experienced marijuana users, drug testing also was not associated with either the prevelance or the frequency of marijuana or other illicit drug use" (p. 164).
One significant limitation from this study is that the surveys were distributed and collected
from school administrators, which may lead to response bias. But nevertheless, the study raises some interesting concerns that perhaps our local testing efforts may be able to address.
As for the first two bullets, they don't strike me as outcomes. They may be viewed as crucial social and/or communication tools that assist student-athletes in getting out of tight peer-pressure situations, but they're not outcomes. To the degree that they are employed in the common social situations student-athletes find themselves in, my guess is that it will take quite some time for those accepted social structures to be modified.
Posted By : Caseycro
Blown Save(ings): Former All-Star Closer Jeff Reardon Charged with Armed Robbery
Message posted on : 2005-12-27 - 06:11:00
Jeff Reardon, a former All-Star closer who pitched in the big leagues from 1979 to 1994, was arrested yesterday on armed robbery charges in Palm Beach Gardens, Florida. According to the police, the 50-year-old entered a jewelry store and "handed a clerk a note demanding money. The clerk, believing Reardon had a gun, filled a bag with an undisclosed amount of cash." With his bag full of cash in hand, Reardon fled the store. Within a short-time, however, the police found Reardon at a local Chinese restaurant--with the same bag in hand--and arrested him.
A conviction on armed robbery charges could pose a sentence in excess of 10 years.
Although Reardon was best known for his time with the Minnesota Twins (with whom he won a World Series ring in 1988), I best remember him from when the Boston Red Sox signed him as a free agent in 1989. Reardon was born and raised in Massachusetts, and his signing was naturally considered a great homecoming. It was also a lucrative move: at age 34, he received a 3-year, $6.8 million contract from the Red Sox.
But the hometown aspect was most appealing. Just consider these comments from Boston Globe columnist Dan Shaughnessy right after the Sox signed Reardon in December 1989:
The Red Sox have a pitcher who knows the meaning of traffic rotaries, Bill Monbouquette, candlepin bowling and Johnny Pesky.
Jeff Reardon of Dalton, Mass., is coming home to pitch for the Red Sox and he promises not to complain about save situations, wives' seating or the Mass. Pike toll increase scheduled for next spring.
Jim Rivers was Jeff Reardon's high school baseball coach in Dalton and yesterday said, "I couldn't be happier for him. This is his boyhood dream. He's always wanted to be in Boston."
Boyhood dream.
As cliches go, this is one of the best. We are on the threshold of the '90s, and baseball stories are accompanied by an endless stream of digits. The key words are pacts, contracts, extensions, bonuses and incentives. There is no room for the fuzzy dreams of a young boy in bed, laying on his back, pounding a ball into a Sears glove, staring at the ceiling and envisioning himself standing on the great mound at green Fenway. Jeff Reardon is finally going to pitch for his hometown team . . .
Reardon is coming home, and there is joy in the sleepy streets of Dalton, Hinsdale, Washington, Cummington, Windsor, Becket and Peru, Mass. These are the tiny towns served by Wahconah Regional High School, where Reardon got his diploma in 1973. There's a lot of pride in this rural area. (Dan Shaughnessy, "Home is Where He Belongs," Boston Globe, Dec. 7, 1989, at 109).
Although Reardon is obviously innocent until proven guilty, if the charges do prove true, it is striking that Reardon could have apparently blown all of his career earnings, and had to resort to a not-well-executed jewelry store robbery as a result. This story brings to mind the limited career
earnings curve of pro athletes, and how important financial advisors are to their post-game futures.
Update 12:15 PM: Fox Sports has more details on the incident, and those details cast a far more positive light on Reardon. To say the least, he has had a rough past couple of years, as his 20-year-old son died of a drug overdose in February 2004, and Reardon underwent a heart angioplastly last week. Reardon claims that medication from the surgery caused his bizarre behavior.
Posted By : Michael McCann
What We Do
Message posted on : 2005-12-26 - 10:52:00
Happy Holidays everyone! I'd like to thank Michael for the generous invitation to guest blog for this week. He and I struck up a conversation a few months back about one of his blog post, and now, here I am. Because I'm one of the few non-lawyers in the guest-blogger stable, I thought I'd open the week with a little information about my profession, athletic training, and try to answer the question, "Why is an athletic trainer reading the Sports Law Blog?"
In a bit of serendipitous media syngery, today's edition of the NYT is carrying two stories that serve as perfect segues into a brief discussion about the role and responsibilities of athletic trainers. The first is a story about the 20th anniversary of Joe Theismann's Monday Night Football injury. (The second is a story about sport-related spinal cord injury, but unfortunately, access is limited to Times Select subscribers, so I'll ignore it here). Theismann's injury, an open tibia-fibula fracture, was similar to the one in the picture above. Gruesome, I know, but also an important reminder of the severity and seriousness of injury that can occur to athletes at all levels of competition. As many of you know, that injury cost Theismann's his career. On a more general note, musculoskeletal ailments are now the most commonly given reason for physician visits. Of the 35 million American kids playing organized sport, it's estimated that 10% will be injured, and most of those will be orthopaedic-related injuries
For many people involved in sport or physical activity, athletic trainers (ATs) serve as the primary point of care for preventative, emergency, and rehabilitative medical services. We are employed at all levels of amatuer and professional sports, and in many oupatient therapy clinics. We work very closely with our directing physicians (team physicians in most cases) in the provision of athletic health care. In addition to preparing Theismann and his teammates for competition (with padding, taping and bracing, nutritional advice, training and conditioning, etc.), ATs, along with the team physicians, would have been primarilty responsible for the acute management of his injury. In many cases, they would then also be responsible for the rehabilitation and return to play of the athlete. I'll spare you more details - you can read more about the profession at the National Athletic Trainer's Association website. I'd especially encourage you to read some of these facts about ATs.
Why would an athletic training / sports health care professor, or any AT for that matter, be interested in the Sports Law Blog? Well, I happen to teach a course on current legal and professional issues facing ATs which is how I first stumbled across the site. ATs, like many other allied health care professionals, are increasingly faced with a myriad of legal issues, including malpractice and negligence claims, risk management, patient confidentiality, drug testing, etc. This blog has proven to be a helpful and provocative resource on many of these issues. So, my goal for this week then, is to try to approach some of these and related topics from the "sports" health care standpoint.
I look forward to discussing more of these issues as the week
goes on. If you have any specific ideas for topics, please let me know.
Posted By : Caseycro
It's a Wonderful Life: Kobe Bryant and the Prison Life He Avoided
Message posted on : 2005-12-26 - 10:46:00
Dave Zirin of Counter Punch Magazine has an interesting piece on the life Kobe Bryant could have led had he been convicted on sexual assault charges two years ago. (Zirin, "Rotten at the Core: Kobe Bryant and the Price of Freedom," Counter Punch, 9/6/2006). As you may all remeber, those charges were dropped less than a week before Bryant's trial was set to begin. Zarin's piece argues that, because of race, African-American men are far more likely than white men to be convicted of criminal charges, and absent extraordinary wealth (see: Bryant, O.J. Simpson), they can expect to endure seemingly-ghoulish conditions behind bars:
Now we know the price of freedom in the USA: eight to ten million dollars. That's how much Kobe Bryant shelled out to his legal team to avoid a rape conviction and four to life in a Colorado Maximum Security Prison. That's how much it costs for a young black man to evade a trial by a jury pool that is .5% African-American. That's how much it costs to get out of Dodge. It was a small price to pay. If convicted in Eagle County, Kobe would not have shared a cell with Martha Stewart in the Michael Milken wing of a country club prison. He would have been grinded through the sick machine of Colorado's sex-offense "rehabilitation" system.
Frankly, "sick" doesn't begin to describe it. First, Kobe would likely have been denied bail--a standard Rocky State result of a Class A felony conviction--and then spend 60 days in a county cell waiting to be sentenced.
Then, during the 60-day waiting period, the NBA All-Star would have been given what is called a "penile plethysmograph test." The PPT, which plays a determining role for sentencing, involves fitting an electric measuring band around the penis and connecting this apparatus to a computer. Then Kobe would be shown films of graphic sexual violence and illegal pornography as the computer gauges his level of "arousal and deviancy" . . .
For Bryant, raised in Italy, the son of a globe trotting professional basketball player, a Colorado Maximum Security Prison would be a rude awakening. For the first year, "he [would] be in a cell 23 hours out of 24," explains Denver trial attorney Bob McAllister. "He's famous so the guards will make sure there's no appearance of favoritism. They'll probably be harder on him, full-body cavity searches, just to show him he isn't anything special" . . .
Three-strikes laws, zero tolerance policies, and mandatory minimum sentencing have left more than two million people in this country rotting in prisons, the numbers disproportionately black and brown. For those who don't have ten figure salaries to spend on attorneys, punishment, torture and 23-hour lockdowns become your new life.
My take: I tend to believe that socio-economic status is just as important as race (i.e., poorer, less educated folks--white/black/asian/you name it--seldom make "good defendants" and can't afford legal teams, and are thus less likely to receive the
benefit of the doubt that most of the people reading this would--white/black/asian/you name it). Similarly, the human impulse towards "justice" (or, less delicately put, "pay back") animates our thinking in how we respond to crime, and that often has more to do with the crime than the criminal (and, frankly, "pay back" may not always be a bad thing). But obviously, race is still a very significant factor in who ends up in prison and what happens to them in prison, as African-American men are far more likely to be convicted than white men, and they tend to receive harsher penalties for the same conviction.
Hat Tip: Henry Abbot's True Hoop
Posted By : Michael McCann
Happy Holidays
Message posted on : 2005-12-24 - 19:19:00
We hope you all are enjoying the holidays. We'll be back on Monday, December 26, with two guest bloggers (Professor John Parsons of the and Attorney Ryan Rodenberg of Octagon), so be sure to check in. I look forward to posting on Johnny Damon signing with the Yankees and whether his decision "disproves" my upcoming law article, It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes, 71 Brooklyn Law Review __ (forthcoming, 2006).
Here's a preview: it doesn't.
But in the meantime, Merry Christmas and Happy Hanukkah! Thanks once again for helping to make this site a popular and we hope commendable forum for those interested in sports and the law.
Posted By : Michael McCann
Ball Hog? Harlem Ambassadors File FTC Complaint Against Harlem Globetrotters for Unfair Business Practices
Message posted on : 2005-12-23 - 10:44:00
The Harlem Ambassadors, a barnstorming exhibition basketball team that was founded in 1998, have filed a complaint with the Federal Trade Commission concerning the business practices of the Harlem Globetrotters, also a barnstorming exhibition basketball team, yet one that was founded in 1926 and enjoys far-better name recognition. (Don Walker, "Ambassadors' Beef with Globetrotters is no Joke," Milwaukee Journal Sentinel, 12/01/2005). The Ambassadors' founder and president/GM, Dale Moss (pictured to left with star player Ladè Majic Prophète), was recently interviewed on David Frank and Scott Gilefsky's Sports Court on Sporting News Radio.
The Ambassadors--which, unlike the Globetrotters, feature male and female players--tend to play in smaller venues, while the Globetrotters often secure the larger arenas. The complaint specifically concerns the Globetrotters' contractual agreements with their host arenas: by rule, the Globetrotters require exclusivity windows, in this case meaning the host arena may not book "any basketball exhibition for a period of eight weeks prior to the performance and six weeks subsequent to the performance [about 3 and a half months all-together]." Consequently, the Ambassadors are greatly limited in their ability to schedule events with the larger arenas, leading the Ambassadors to allege that the Globetrotters "have unreasonably used its market position to initiate a conspiracy of contracts which unreasonably restrain the business activities of the Harlem Ambassadors."
So how do we analyze the complaint? Obviously, competition is a good thing, and the exclusivity windows appear to shutout the Ambassadors from competing with their well-established, name-brand competitor. On the other hand, the Globetrotters might argue that sufficient competition is already generated by the prevalence of other novelty acts, like circuses and feature shows: if the Globetrotters aren't generating fans, then arenas will presumably negotiate contracts with those other novelty acts or possibly even the Ambassadors. It thus seems that both the Ambassadors and Globetrotters have viable lines-of-reasoning in assessing "competition."
As to exclusivity windows, it is important to note that they are not unique: circuses and other novelty acts often secure them in their performance contracts with host arenas. But the Ambassadors might argue that those circuses and novelty acts do not, like the Globetrotters, enjoy a national monopoly on a particular business model. Moreover, exclusivity windows typically have to be "reasonable" in light of industry practices; if the industry features just two actors, with one dominant actor and one minor actor, courts are less likely to be tolerant of lengthy exclusivity contracts, particularly if only one of those actors benefits from the contracts.
Lastly, the Ambassadors may argue gender-discrimination, as only the Ambassadors feature female players and thus exclusivity contracts may (arguably) deny them the right to economically-compete with their male peers.
So which team is right? Is this merely a case of survival of the fittest, or is it one of a longstanding monopoly going too-far in trying to avoid
competition?
Posted By : Michael McCann
60 Wins and Counting: Go Lee High
Message posted on : 2005-12-23 - 09:47:00
And now for a nice feel-good sports story to kick off your holiday weekend. Tired of whiny professional athletes and college stars whose infractions are quickly swept under the rug lest they impact The Season? How about a return to high school hoops?
On Wednesday night, the Fighting Leemen of Robert E. Lee High School, in Staunton, Virginia, extended their winning streak to sixty games. On the floor, the Leemen are led by Eli Crawford, who by all accounts is just a solid nice kid from a great family. Eli was the state player of the year last year, as a junior. Incidentally, the Lee winning streak started a few years back under the leadership of Eli's cousin, Tyler, who now plays at Georgetown. Lee has captured the state championship two years running, and this season is off to a great start.
The amazing thing about Lee High basketball's great success is that the pool of student-athletes at Lee is small. Lee High is the only high school in the quiet Shenandoah Valley town of Staunton, which boasts about 25,000 people. But Lee High completely dominates in the AA basketball world in the state. I don't think I can remember a year when they didn't at least make it to the state tournament. Of course, the reason -- and anyone from Staunton will tell you this -- for Lee's success over the years is Coach Hatcher.
Coach Paul Hatcher has been at Lee High since the 1960s, dedicating his entire life to Lee High -- and not just to the basketball team. Coach Hatcher has also taught P.E. and drivers ed to just about every kid who has gone through Lee High (including me). His wife Judy taught in the local elementary schools for years and has mentored many Staunton youth, both basketball players and not. His sons are both active with the team and one of them is reported to be one of the most popular teachers at Lee High today. They're a great family and for many years, have supported a program that brings much joy to a sleepy little town.
In 2002, Coach Hatcher became the winningest coach in Virginia history. The General Assembly passed a resolution honoring him. (That's it for the "law" in this piece.) Last year, Coach Hatcher was named Coach of the Year for AA Basketball. In truth, he probably could win it every year. The Leemen travel to the big city - D.C. - on December 30 at 2:30 P.M. for a game at the MCI Center against their constant rival, the Spotswood Trailblazers. If you're in the area, I encourage you to head over and check it out. It will restore your faith in the value of sports for the players, the coaches, the fans, and the community.
Posted By : PrairieMom
Playing for the New York Yankees: Situation over Reason?
Message posted on : 2005-12-22 - 19:46:00
afasd
We like to believe that we are rational actors, whose choices represent our preferences. Socio-psychological research largely disproves that conclusion -- we are far more affected by cognitive biases, heuristics, and situational influences than we believe -- but it's interesting to see this idea apply to sports.
Lawton told Sports Weekly's Bob Nightengale that he was playing poorly and was hurting, so he turned to steroids. "I wasn't playing well enough to be on a Little League roster, let alone be on the roster of the New York Yankees," Lawton told Sports Weekly in its current issue. "I just wasn't physically able to do the job. I had never been in the playoff hunt before. So I did something that will always haunt me." Lawton said that he's never taken amphetamines, but injected the steroid on Sept. 20. The next day, he started in center field and hit a home run in his first at-bat. He said he didn't feel any pain. He was tested the next day. "It was such a stupid thing, but I was desperate," Lawton told Sports Weekly. "Maybe it was the pressure of playing in New York, I don't know. I never had the urge to take any of that stuff before, but I was talking to some guys, and they guaranteed it would get the pain out." Lawton, 34, hit .254 last season while playing for three teams (including the Yankees). He was left off New York's postseason roster after hitting .125 in 21 games for the Yankees. They acquired him from the Cubs. He started the season with Pittsburgh. Lawton, an All-Star in 2000 and 2004, is currently without a team. "I don't want people to think that everything I did, the good years I had, were steroid-related," Lawton told Sports Weekly. "I learned a lot about myself last year, and I'll be better for it. "Now I'm ready to prove it."
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Posted By : Michael McCann
Random Steroid Testing for New Jersey High School Stars
Message posted on : 2005-12-21 - 14:16:00
New Jersey has become the first state in the country to mandate steroid testing for high school athletes. Acting Governor Richard Codey signed an Executive Order requiring random steroid testing for members of all high school athletic teams that qualify for post-season play. The Order is the culmination of the Governor's Task Force on Steroid Use and Prevention, which issued its report yesterday. Some of the Task Force's recommendations are easy to implement, make sense, and are non-controversial: incorporating education about steroids into the state's current DARE curriculum; encouraging schools to educate students on the risks of steroids; and producing public service ads regarding the same.
As is often the case when an issue does not encounter any significant political opposition (e.g., there are no interest groups supporting steroid use by high school athletes), legislation concerning the issue should be approached cautiously and critically. Bills that pass state assemblies unanimously are often the bane of practitioners' existence, because no one ever thought through what would happen if...
One issue that has already generated some controversy in New Jersey is funding for the steroid testing program -- everyone wants testing, no one wants to pay for it. The testing program is expected to cost approximately $50,000 per year, a cost that according to the Governor, will not be passed on to individual school districts. Note that the Executive Order does not specifically address who will be responsible for the cost.
Another issue is privacy. The ACLU has weighed in that they probably will not challenge such testing, since in Veronia v. Acton, 515 U.S. 646 (1995), the U.S. Supreme Court held that drug testing of high school athletes passed constitutional muster. It strikes me, though, that the random testing of only championship-caliber athletes could present a legal challenge as a somewhat arbitrary and capricious designation. And don't count on the ACLU not to challenge the law down the road -- the organization has filed class action lawsuits in the past challenging drug testing policies in communities where the ACLU asserts there is no widespread drug problem.
The testing program in New Jersey is slated to be implemented during the 2006-2007 school year. As the first such program in the country, it will be interesting to watch to see what legal challenges and consequences arise.
Posted By : PrairieMom
Sports Law Blog Nominated for Best General Sports Blog of 2005
Message posted on : 2005-12-21 - 13:15:00
We are excited to announce that Sports Law Blog has been nominated for the Best General Sports Blog of 2005 in the Red Reporter Awards. We are honored, and we greatly appreciate all of the guest bloggers, readers, and commentators who have contributed so much to the Blog. If you would like to vote on the award, please click here.
-- Michael McCann and Greg Skidmore
Posted By : Michael McCann
Professor Gregory Bowman's Law Career Blog
Message posted on : 2005-12-21 - 06:02:00
Many Sports Law Blog readers are law students or recent law school graduates. If they represent a typical sample of those two groups, then many of them 1) find law school life to be somewhat peculiar and 2) aren't sure what they want to do with their law degrees. Granted, they are well aware of the kinds of jobs they are supposed to aspire to (for example, see left), but for whatever reason, there is a disconnect between those "great expectations" and what they really want to do--even if they can't express or imagine what they really want to do. It can be like staring into the Great Abyss, and not knowing whether to step into it, keep staring at it, or to walk away from it . . . all the while sending out resumes and preparing for on-campus interviews by going on firm websites (where you can learn about each firm's doubtlessly "dynamic" summer associate program, or how each firm excels at training and mentoring and balancing life and work and. . . well, you get the picture).
I am pleased to recommend a new blog that examines these issues: Law Career Blog, authored by Professor Gregory Bowman of Mississippi College School of Law. Law Career Blog tackles the culture and happenings of law school, while providing insight on law careers and alternative career options for lawyers. The posts are thorough and engaging, and Greg's experience lends valuable insight: prior to becoming a tenure-track law professor last year, he had practiced for nine years, primarily in the Chicago and Washington D.C. offices of Baker & McKenzie. He now teaches International Business Law, International Law, National Security Law, and Administrative Law.
I encourage you to take a look. Only a month-old, Law Career Blog has already explored a number of thought-provoking topics:
Law School Life and Careers
Current Debates in Law
Posted By : Michael McCann
U.S. Rep. Marty Meehan on Steve Belichick
Message posted on : 2005-12-20 - 12:10:00
In what has been a long year for both our country and professional sports, it's nice to those who represent our country bring out the positives in professional sports. U.S. Rep. Marty Meehan of Massachusetts has done just that with his moving words for Steve Belichick (1919-2005), the father of Patriots head coach Bill Belichick. A Patriots' season-ticket holder since long before he won office, Congressman Meehan's comments appear in the Congressional Record for December 17, 2005:
STEVE BELICHICK (1919-2005): AN AUTHENTIC COACH AND FATHER
HON. MARTIN T. MEEHAN
of Massachusetts
in the House of Representatives
Saturday, December 17, 2005
Mr. MEEHAN. Mr. Speaker, I rise to honor Steve Belichick (1919-2005): an Authentic Coach and Father.
There have been many great images from the New England Patriots dynasty. Tom Brady embracing his teammates after yet another fourth- quarter touchdown. Adam Vinatieri raising his hands after yet another game-winning kick. The Krafts hugging one another after yet another Super Bowl victory.
But the image that might stand out the most is the Gatorade-dousing of Bill and Steve Belichick moments before the Patriots would defeat the Philadelphia Eagles in Super Bowl XXXIX. For many New Englanders, it was the first time they had seen Steve Belichick--the man who every New Englander would like to thank for fathering and mentoring the best coach in football.
And like in his 33-year career as an assistant coach at the U.S. Naval Academy, Steve Belichick would need someone else to draw our attention to him, even at a moment of extraordinary personal success. He was his son's role model, and his son was on the verge of coaching the Patriots to a third Super Bowl victory in four years. It was a moment that any father would savor, and likely in a way that others would detect.
But Steve Belichick never sought public attention recognition of his work, be it his innovative game-plans, exceptional scouting reports, or the invaluable lessons he taught his accomplished son. Instead, he craved the background, the behind-the-scenes world unseen to fans and media, and the world where he would consistently win the high praise of those ``in the know.'' And like any truly substantive professional, Steve Belichick would take enormous personal satisfaction in obtaining the respect of his peers--the very respect that would often elude more celebrated coaches.
Doubtless for that reason, Steve Belichick had remained out of our sight until the camera caught others showering him and son in victory. It is much the same reason why Bill Belichick often deflects praise and attention. It is simply not the Belichick way of doing things.
When Steve Belichick passed away on November 19, 2005 at the age of 86, it was fitting that we remember him as reluctantly tasting success. And it was fitting that he be with his son.
It can be said that a father always dreams of being less accomplished than his own child, because there is no greater accomplishment for any father.
It is a lesson that Steve Belichick has taught us well.
____________________
Just an outstanding statement before the House of Representatives.
Posted By : Michael McCann
Manners, The Chiefs, and "One Little Finger"
Message posted on : 2005-12-19 - 10:30:00
Manners. Manners are what distinguish a place you'd like to live from a place where you have to live. Since moving to the Midwest about six months ago, I have learned to really appreciate how thoughtful, how polite, and how generally nice Midwesterners are.
So I was shocked -- really shocked! -- to read about the behavior of the Kansas City Chiefs defensive coordinator at the end of the Chiefs' game against the Dallas Cowboys last weekend. Yes, the Chiefs were robbed. But I still was shocked to read that a grown man would use an obscene gesture in front of his colleagues, thousands of fans at Arrowhead, and all of us at home. Kudos to the NFL for levying a fine as a result. Sure, it's only money, but maybe it will make others think twice about their public behavior.
Even more shocking to me has been the local reaction. Those of you in Boston and New York need to understand that this is Kansas City. The Midwest. The Heartland. To hear them tell it, this is God's country. People open doors for you here, bid you enthusiastic "have a nice day"s, and actually let you merge in traffic -- or what passes here for traffic. But the obscene gesture by Mr. Gunther Cunningham? Understandable. Reasonable. Acceptable.
I don't get the double standard. A lot of the recent big sports stories wouldn't even have been stories had the individuals involved just thought back to their basic nursery-school manners before acting. If you don't have anything nice to say, don't say anything at all. When you do something to hurt someone else, say sorry. Don't do anything you wouldn't want your mom to find out about.
Come to think of it, with all the hullabaloo about T.O.'s birthday party guest list, maybe it was just T.O.'s attempt to use his manners. Most elementary schools encourage kids to invite everyone in their class, so no one feels left out. Bravo to the teammates who politely attended their friend's party. Viva manners in 2006!
Posted By : PrairieMom
The Politics of Sport: Congressional Oversight of Teams, Players, and Leagues
Message posted on : 2005-12-19 - 09:33:00
Chris Graham of the Augusta Free Press has a provocative story on the increasing attention Congress appears to be investing in the oversight of sports. (Graham, "The Politics of Sport," August Free Press, 12/19/2005). We have seen that trend with steroids/baseball, the BCS hearings, and the prospect of a Congressional inquiry into the antitrust implications of the Eagles suspending Terrell Owens.
Chris interviews several persons for this story, including me. As former House Judiciary Committee Fellow to U.S. Rep. Marty Meehan, I take particular interest in this issue. Here are some excerpts:
"The sports industry is a huge industry, and it's largely unregulated, or at least is self-regulated. It makes billions of dollars a year, and its stars are held in high regard in particular by our nation's youth. Sports has an important role to play in our society, so from that perspective, it's not surprising to see Congress wanting to step in and get involved when something seems to go awry," said Matt Smyth, a politics analyst with the University of Virginia Center for Politics.
"Some say the sports industry should be allowed to function outside the realm of accountability and everyday citizen concern. Professional sports are now the 10th-largest industry in the United States, generating $220 billion in revenue every year. They are also one of the largest recipients of corporate welfare, with taxpayers subsidizing new stadiums across the country one after another. And the leagues effectively operate as monopolies, with MLB officially operating as a monopoly with their antitrust exemption," said Shawn McCarthy, the director of the Washington, D.C.,-based League of Fans, a sports-reform group founded by consumer advocate and former presidential candidate Ralph Nader.
"Congress' involvement was critical. The threats of Sen. Jim Bunning and Sen. John McCain, in my opinion, greatly animated baseball to act," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog. "Congress finally stepped up to the plate, no pun intended, and said, look, this is ridiculous. We cannot have role models be those who engage in steroid use. There's a national interest in seeing this kind of behavior curbed, and moreover, you guys aren't doing anything about it. The sanctions that you've imposed seem to be without much in the way of deterrent," McCann told the AFP.
"Their constant attack on baseball and requiring Bud Selig and Donald Fehr to go to Congress and testify had a big effect. It really shook them up," McCann said . . .
Particularly for Republicans, whose operating mantra is focused on limited government and limited involvement in the operations of the business and industry sectors, "you want to be consistent across the board . . . So there's a careful balancing act that has to be performed here," Smyth said.
And more generally speaking, McCann said, "Congress has to be wary to put sports in
perspective." "Clearly, we have an unpopular war. We have a not-clearly-successful recovery effort from Hurricane Katrina. There are obviously issues of greater national prominence that Congress should direct most of its attention to," McCann said.
"If Congress feels that it has time to address these sports issues, it's a good thing. But not at the expense of the bigger issues," McCann said.
What is the optimal role for Congress in the oversight of sports?
Posted By : Michael McCann
Reverse Stigma? The Precipitous Rise of Young, Highly-Educated General Mangers in Major League Baseball
Message posted on : 2005-12-18 - 14:08:00
Alan Siegel of the Lawrence Eagle-Tribune has an excellent biographical piece on the two new co-general managers of the Boston Red Sox: Ben Cherrington (31-years old, Amherst College '96, University of Massachusetts Sports Management Program '97) and Jed Hoyer (31-years old, Wesleyan University '96). His story brings to mind the seemingly growing number of young guys with impressive academic backgrounds who are taking over Major League Baseball teams (in alphabetical order, and feel free to add names in the comments section):
Chris Antonetti, Cleveland Indians Asst. GM
26-years old when hired. Graduate of Georgetown University in 1996 and the University of Massachusetts Sports Management Program in 1997.
Josh Byrnes, Arizona Diamondbacks GM
35-years old when hired. Graduate of Haverford College in 1992.
Jon Daniels, Texas Rangers GM
28-years old when hired. Graduate of Cornell University in 1999.
Paul DePodesta, former Los Angeles Dodgers GM
31-years old when hired. Graduate of Harvard University in 1995.
David Forst, Oakland A's Asst. GM
27-years old when hired. Graduate of Harvard University in 1998.
Theo Epstein (pictured above), former Red Sox GM
28-years old when hired. Graduate of Yale University in 1995 and the University of San Diego School of Law in 2000.
Andrew Friedman, Tampa Bay Devils Rays VP of Baseball Operations
28-years old when hired. Graduate of Tulane University in 1999.
Mike Hazen, Cleveland Indians Asst. Director Player Development
27-years old when hired. Graduate of Princeton University in 1998.
Mark Shapiro, Cleveland Indians GM
35-years old when hired. Graduate of Princeton University in 1989.
Peter Woodfork, Arizona Diamondbacks Asst. GM
29-years old when hired. Graduate of Harvard University in 1999.
It's interesting that there might be a "reverse-stigma" going on here: years ago, none of these guys would
have had a chance for a GM job until they "paid their dues." And some of them would have been permanently excluded merely because they would have seemed "too smart" or "too Ivory Tower," or because they had never played pro ball. None of that is terribly surprising, given that employers frequently turn to stereotypical labels and other conclusory-proxies when assessing candidates (i.e., contrary to what we are taught, hiring is often not "merit-based," but instead a murky mix of perceived-merit, presumptions, and satisfaction of confirmation bias: we are all subject to ignore or discount information that challenges existing beliefs, and that animates our thinking in ways that we do not often appreciate -- for reference, see my upcoming article in the Brooklyn Law Review).
But now-a-days, it seems that young, highly-educated guys are accorded the benefit of the doubt, while seasoned baseball executives, like Phillies Asst. GM Mike Arbuckle (55-years old), Tigers Asst. GM Al Avila (46-years old), and Padres' Asst. to the GM Grady Fuson (49-years old), are often overlooked (although the Dodgers' recent hire of 50-year old Ned Colleti is an obvious exception). The growth of Moneyball philosophy is no doubt a contributing factor, but perhaps there is also the power of image on cognitive-analysis: young guys with impressive academic credentials are accorded a favorable presumption that older guys are not, and that affects the thinking of teams when they consider GM candidates. For instance, we "think" that younger, highly-educated guys are more likely to have the energy, enthusiasm, and mental acumen needed to be a successful GM -- just like how, 20 years go, we "thought" that older guys were more likely to have the insight, experience, and judgement needed to be a successful GM.
Put more simply, there may be an inherent bias to hire a certain profiled candidate (i.e., a young guy with prestigious schooling) merely because of that profile.
Posted By : Michael McCann
Axis of Evil Baskets: Americans Playing Pro Hoops in Iran
Message posted on : 2005-12-16 - 00:37:00
Scott Peterson of the Christian Science Monitor has an engaging piece on Iran's first attempt to create a national basketball association. (Peterson, "On the Parquet, 'Great Satan' plays for 'Axis of Evil,'" 12/15/2005). In an effort to bolster quality of play, teams are paying up to $15,000 a month to lure players from the United States, which Iranians sometimes call "The Great Satan."
Over the last two years, the number of American players has increased from three to 18, including former Boston Celtics guard Chris Herren and former Denver Nuggets center Garth Joseph (pictured to left). Teams are sponsored by an assortment of public and private entities. For instance, Andre Pitts, who played collegiate basketball at Houston-Tilotson, plays for Saba Battery, which is run by Iran's Defense Ministry.
It's interesting to observe reactions of American players in Iran, and how their initial stereotypes proved wrong:
Pitts's Iranian teammates say he was somewhat anxious about this when he arrived. But players of both nationalities say now that the first thing to fall away are the prejudices and misconceptions fostered by governments and the media. "We clicked from Day One," says Pitts . . . who is often busy countering misperceptions among friends and relatives when he returns home to Texas for vacation.
Americans "think all Iranians hate America, or have a negative attitude to the US," he adds. "It's sad, because the news shows all the bad things [about Iran] but never the good things. It's wrong, but all states are the same: There are some bad things, and some good."
These comments seem to illuminate the absurdity of much of contemporary political rhetoric. We call certain countries part of an "Axis of Evil," while they call us manifestations of "The Great Satan." Really, how ridiculous have things become when our leaders engage in rhetorical debates over which side is evil and which side is Satan, as if people who happen to be born in Iran and those who happen to be born in the United States are inherently anything? For all of the flaws in professional sports, they seem to enable persons to rise above convenient rhetorical labels, and see that the world is bigger, more complicated, and less black and white/good and evil than is often taught.
Posted By : Michael McCann
More on the World Baseball Classic - Cuba Shut Out
Message posted on : 2005-12-15 - 10:44:00
Following up on Mike's story from earlier this morning regarding the World Baseball Classic, the U.S. Treasury Department has shut out Cuba more effectively than even Roger Clemens could. According to an Associated Press story, the Treasury Department yesterday told Major League Baseball that Cuba would not be allowed to play in the World Baseball Classic, to be held largely in the United States (with Cuba having been scheduled to play early round games in U.S. territory Puerto Rico), due to various commerical embargo-related federal statutes.
Cuba was not viewed by many as a top contender in the March 2006 tournament, largely because defectors such Livan Hernandez, Jose Contreras, and Livan Hernandez would not be on the Cuban roster. In a somewhat rare collaborative effort, Major League Baseball and the MLB Player's Association will work together in an attempt to appeal the Treasury Department's decision. Further, this now apparently leaves a hole in the 16-team draw, with Cuba having been slated to play in Pool C with Puerto Rico, Panama, and The Netherlands.
Posted By : Chad McEvoy
A-Rod May Play for the Dominican Republic: Un-American or Quintessential American?
Message posted on : 2005-12-15 - 00:10:00
Yankees third baseman Alex Rodriguez will probably play for the Dominican Republic, rather than the United States, in next March's inaugural World Baseball Classic. Born in New York City, Rodriguez would live there until the age of four. At that time, his family moved to the Dominican Republic. The family would return to the United States when Rodriguez was eight-years old.
Certainly, Rodriguez is entitled to play for the team of his choice. It would seem hypocritical for a democracy or one its long-standing institutions like Major League Baseball to force or even admonish players to play for its national team instead of another national team. At least until recently, the power of democracy has always been in its unique power to inspire, rather having to compel, and its ability to "win" often without throwing punches or even flexing muscles. Along those lines, to criticize A-Rod or any player who elects to play for a different country seems inapposite with our norms and aspirations.
That said, Rodriguez's decision to play for a country in which he was not born, and one in which he has only lived four of his 30 years, begs an interesting question that perhaps has no answer: At what point do we "become American"? Can it happen in the first generation of a family? The second generation? The third generation? Obviously, it varies by family; some families maintain close relations with their relatives "back home"; others come to the United States and don't look back; and yet others, like the Rodriguez family, literally move back-and-forth.
Many of us can relate to this experience. I think of my own background: my mother's parents were Italians who emigrated to the United States as young adults, while my father's ancestors came to the United States from Ireland a long time ago. So I'm "half second-generation American," and yet I don't feel an affinity for any country but the United States. And this goes to the fact that while I say that I'm half Irish-half Italian, I also say that I'm American, born and raised (even though I--and I suspect almost all of you--have no ties to the indigenous population that predated the influx of Europeans on the North American continent--a population that some might call the "real Americans").
So how can one be 100% American, 50% Irish, 50% Italian, and 0% "real American"? I guess that's the "fuzzy math" we sometimes delve into. It may also reflect the situation in which we find ourselves: when we talk to people from other countries, we say that we're "American"; when we talk among ourselves, we say that we're "half this" and "half that."
And yet despite this often mixed message of identity, we are an incredibly patriotic country, sometimes to the point of excluding those who may disagree with national policy--which is, of course, not a very "democratic" thing to do. For that reason, we can expect A-Rod to receive criticism from certain "Americans," even though his decision to not play for the American team appears as consistent with our national ideals as if he chose to play for "us."
Posted By : Michael McCann
New York Court Lets Them Play
Message posted on : 2005-12-14 - 00:04:00
First, thanks to Mike and the first of the guest bloggers for picking up my slack as I took a short break. I echo Mike in saying that we are thrilled to have such an impressive line-up of guests over this two-month period.
I am also pleased with the news from New York, as a Supreme Court (trial court) judge has refused to interfere with the outcome of a high school wrestling match. From the law.com story: The dispute centers on a championship wrestling match in Albany. On March 5, Frank C. Rodriguez and Paul Florio were competing for the state title in the 135-pound division. At the end of the match, Rodriguez, then in 12th grade, was ahead by a score of 7-6. In celebration, he threw his headgear into the air before the official handshake signaled the end of the match.
After declaring Rodriguez the champion and having the combatants shake hands, the referee learned from an assistant referee that the headgear had been thrown and that the athlete had to be punished for unsportsmanlike conduct. The referee assessed Rodriguez a two-point penalty and declared Florio the victor. Rodriguez appealed to the protest committee to no avail, so he took his gripe to court . . . .
Now, you can say what you will about a rule that imposes a penalty for such a harmless violation. But it was clearly the referee's decision to make and not a decision to be overturned by judicial fiat. As the judge wrote: To establish a precedent of reviewing and potentially reversing a referee's judgment call from the distant ivory tower of a judge's chambers would cause unending confusion in the interscholastic athletic system.
I also have to wonder who was giving the young litigant advice. The ruling does seem unduly harsh, and I certainly would have been livid had I been him, but going to court? Perhaps the better lesson would have been that life is sometimes unfair and you have to make the best of the situation, not run screaming to a judge. The court took this approach and I hope it becomes the accepted rule in conflicts over sporting results.
Posted By : Greg
Situation Matters: Race and Larry Bird Comparisons
Message posted on : 2005-12-13 - 17:22:00
Interesting and doubtlessly controversial piece by Josh Levin of Slate on why star young basketball players who happen to be white are often compared to Larry Bird (Levin, "Follow that Bird," Slate, Dec. 12, 2005). It's a good example of how situation--like the color of another's skin--influences our thinking, perhaps in ways that we don't appreciate or intend:
Want proof that getting compared to Bird is a one-way ticket to the Caucasian basketball graveyard?
A list of players who've been identified as Bird-like reads like the roster of a CBA team sponsored by the KKK. There are the Dukies: Danny Ferry, Mike Dunleavy Jr., and Christian Laettner (according to Charles Barkley, "the only thing Christian Laettner has in common with Larry Bird is they both pee standing up").
There are the guys whose main qualification was playing college ball in the Midwest: Troy Murphy and Wally Szcerbiak ("a Larry Bird game, a Tom Cruise smile," one scribe said). There's the inexplicable: Australian Andrew Gaze.
And the monstrously, hilariously inexplicable: center Eric Montross, whom Celtics exec M.L. Carr said was cut from the same cloth as the Birdman . . .
According to the Web site Basketball Reference, the list of players whose statistics mirror Bird's most closely includes one German (Dirk Nowitzki) and six African Americans: Kevin Garnett, Antoine Walker, Clyde Drexler, Magic Johnson, Dominique Wilkins, and Julius Erving. Instead of being classified with his true peer group—the Magics and Dr. J's—Bird has become the patron saint of slow-footed white guys like Troy Murphy and Adam Morrison. Such is the burden of the white archetype.
Hat tip: the always engaging Celtics Blog.
Posted By : Michael McCann
BCS Hearings and Antitrust Implications
Message posted on : 2005-12-12 - 13:46:00
The Voluntary Trade Council's web site ran an interesting story last week on a theoretical antitrust challenge to the Bowl Championship Series. As a longtime college football playoff proponent, I'm always devising scenarios by which we can destroy the BCS and institute an eight- or even sixteen-team playoff as a replacement (if Chad Henne from Michigan doesn't complete that last pass to beat Penn State, think of the public outrage of Joe Paterno and the undefeated Nittany Lions locked out of a USC-Texas title game). Unfortunately, I've believed for a couple of years now that it would be difficult for any potential plaintiff to show standing in an antitrust challenge following the 2004 agreement between the six BCS conferences and the Coalition for Athletics Reform, which designated criteria by which non-major conference schools can automatically qualify for a BCS berth. Now that any Division I-A football program has a means by which to play in a BCS bowl, an antitrust challenge by an NCAA member institution seems unlikely. One interesting point made within the VTC story is that in such a challenge, the BCS-related defendants could argue that is actually pro-competitive, rather than anti-competitive, in that the bowl system allows for increased participation/output versus a playoff system as there are 28 bowls currently.
That being said, I can't help but envision what an eight-team playoff might look like. Using the current BCS standings, picture the following matchups being played over Christmas weekend at various bowl sites: #1 USC vs. #8 Miami, #2 Texas vs. #7 Georgia, #3 Penn State vs. #6 Notre Dame, and #4 Ohio State vs. #5 Oregon (automatic conference champion berths ignored here for simplicity's sake). The semifinalists could play New Year's weekend at other bowl sites with the championship game the following weekend in primetime at a rotating venue.
Posted By : Chad McEvoy
Welcome Back, Theo: Theo Epstein to Return to Red Sox
Message posted on : 2005-12-12 - 06:56:00
A month after Theo Epstein unexpectedly refused to sign a 3-year, $4.5 million contract with the Red Sox (and thus effectively quit as general manger) Rob Bradford of the Lawrence Eagle-Tribune reports that Epstein will return to the team as Senior Advisor (Rob Bradford, "Sox Owner Henry Clears Way for Epstein's Return," 12/11/2005). He will provide advice to his two former assistants, Ben Cherrington and Jed Hoyer, who will become co-general managers. Interestingly, Bradford also reports that Epstein may resume his general manager position as early as the spring if team president/CEO Larry Lucchino accepts a diminished role (i.e., Theo would need to have direct access to the team's owner, John Henry).
It will be interesting to see how the Theo/Larry dynamic plays out in Round 2. It seems relevant to remind ourselves that both are attorneys in addition to baseball executives. Lucchino is a Yale Law grad and a former associate at Williams and Connolly in D.C., while Epstein 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 (and any attorney who worked a full-time job while attending law school at night has my utmost admiration -- I don't know how you did it, and I always ask that of my eldest sister Maria). So both Epstein and Lucchino likely have an acute awareness of their "rights" vis-a-vi each other, and as any good law school graduate will tell you, they will want those rights spelled out in great specificity. In short, Round 2, like Round 1, seems poised for acrimony.
But all of that aside, and speaking strictly as a Red Sox fan, it's exciting that Epstein will be returning. He's bright, creative, local (a native of Brookline -- he actually understands our pain), and, most importantly, assembled most of the players who comprised the 2004 World Championship team.
I'm so thrilled, in fact, that I want every Sports Law Blog reader who is also a Red Sox fan to join me in singing the following melody (as sung to John Sebastian's Welcome Back, Kotter theme song):
Welcome back . . . your dreams were your ticket out.
Welcome back . . . to that same old place that you were ambivalent about.
Well the names haven't really changed since you hung around.
But those dreams have remained and they've turned around [especially by dumping Edgar Renteria -- why did you ever sign him in the first place??!! What was wrong with you??!!].
Who'd have thought they'd lead ya?
Who'd have thought they'd lead ya?
Back here instead of Costa Rica.
Back here instead of Costa Rica.
Yeah we tease him a lot cause Larry Lucchino's still got him on the spot, welcome back.
Welcome back, welcome back, welcome
back.
Welcome back, welcome back, welcome back.
Posted By : Michael McCann
7th Floor Crew: More "Life Experience" for the Student-Athlete
Message posted on : 2005-12-11 - 09:44:00
Martin Edwards of the Chuck and Doug Show on 620 AM The Score Jackson Mississippi alerts me to a recent ESPN column on the "7th Floor Crew," a student band at the University of Miami. (Pat Forde, "Rap recording could threaten Miami's Progress," ESPN.com, 11/18/05). The band features a number of Hurricanes' football players, and its music is described as, "spectacularly profane and stunningly offensive." Its most popular song is about group sex, with a group of men ganging up on one woman.
At one point during the song, junior linebacker Tavares Gooden (number 52 on your Hurricanes' roster) croons:
Then He said baby that's not how it begins
and he brought in all his 7th floor friends
She found it was [unintelligible] the Miami Football Team
It's also the 7th floor king ding-a-lings
She thought 52 was just my number then she realized
you multiply the b**** up then you get my d*** size
It's stories like this that help explain why the longer an athlete stays in college, the more likely he may engage in criminal behavior (and our recent study on NBA player arrests appears to evidence that trend). When you are a freshman player, and your role-models are junior and senior players who gleefully disregard norms or who break rules or laws, and who suffer no material consequence for doing so, guess what kind of lesson you internalize?
Alan Milstein and I are currently co-authoring a law review article for the University of Pennsylvania Journal of Labor and Employment Law that will hopefully amplify this discussion (although the article will primarily be about Eddy Curry and DNA testing). Alan, as many of you know, is Allen Iverson and Eddy Curry's attorney and was Maurice Clarett's lead counsel in his lawsuit against the NFL. We hope to have a completed draft in the near future, and it will be posted on SSRN.
Posted By : Michael McCann
Doubles Players Take To Court
Message posted on : 2005-12-08 - 22:39:00
Men's tennis is at war with itself. In July, the ATP Tour -- the organization established by tennis players to protect their own that has developed into the de facto “league� of men's professional tennis (including event managers), announced drastic changes to men's doubles competition.
The Tour proposed and then passed changes both to the entry qualifications for doubles competitions and to the scoring system. Entry into doubles competitions would be based not on a player's doubles ranking, but on his combined singles and doubles ranking, clearly favoring top singles players. Sets would be played to five games (rather than six) with no-ad scoring rather than playing each game out. The Tour cited a need to make doubles competition at its events more marketable, television friendly and therefore profitable. The ATP claimed its changes would entice better known singles players like Roger Federer or Andy Roddick to compete in doubles events.
As men's professional tennis has evolved, players have specialized. For some time, top doubles players have specialized in doubles. Top singles players don't play doubles. Some say top singles players don't have the time, energy, or financial incentive to play doubles. Others argue that the top singles players wouldn't make the cut in word-class doubles. There is truth in both arguments. No one disputes that the rules changes, principally through the entry guidelines, will eliminate top-tier doubles players from doubles events in favor of top-tier singles players (regardless of their doubles performance.)
That point, raises some interesting antitrust issues. After the rules changes were announced, the top doubles players joined together and sued the ATP and its board of directors in the United States District Court in Houston. They allege that the ATP, through the rules change, has violated antitrust law and breached its fiduciary duty to its member players. The suit identifies the relevant market as men's professional tennis, made up of two submarkets – singles and doubles. By creating rules designed to exclude the world's top doubles players from doubles competitions, the new rules illegally restrain and thwart competition to enter doubles events.
The rules themselves triggered an avalanche of negative publicity from the tennis community. While there is debate as to how to properly market doubles, no one seems to agree that a changed scoring format or altered entry qualifications are the answer. Perhaps in response to the reaction, the ATP this month announced that it has backed off certain of the proposed changes, has created a fund to market doubles and named a doubles commissioner. The ATP has even created a doubles themed ad. Wayne Bryan, the players'
passionate and eloquent spokesman, hasn't relented. Most tennis fans hope that Bryan will prevail. After all, those who enjoy doubles enjoy it for what it is. Its not the product that needs changing, its the presentation.
Stay tuned.
Posted By : Chris Callanan
Steroid Arrests and Plea Bargains: Where's the Juice?
Message posted on : 2005-12-07 - 07:03:00
Jeff Eckhoff of the Des Moines Register has a unique and engaging piece on steroids in pro sports, and specifically how plea bargains with steroid users/dealers may undercut the hoopla (and resulting deterrence) surrounding the initial high-profile arrest. (Jeff Eckhoff, "Plea Deal to Finish D.M. Steroid Probe," Des Moines Register, Dec. 5, 2005). He namely looks at a recent crack-down on world class body-builders in Iowa.
He interviews me for the story, and here are some excerpts:
A wide-ranging federal steroid investigation that centered on Des Moines and targeted several world-class bodybuilders will wrap up next week without anyone going to prison, legal sources say.
A professor who studies steroid cases said the flurry of plea bargains that will result in probation and fines undercuts the high-profile national crackdown on performance-enhancing drugs pushed by President Bush in his State of the Union address last year . . .
Admir "Dado" Kantarevic, a Des Moines personal trainer, is scheduled to plead guilty Dec. 13 to misdemeanor possession charges. That will follow similar pleas from Milos Sarcev , a former Mr. Yugoslavia and Mr. Universe, and Dennis James, an eighth-place finisher in the 2004 Mr. Universe competition. The three had each faced up to five years in prison for allegedly being involved in a conspiracy to import anabolic steroids to Des Moines. Sarcev and James were fined and put on probation last week on reduced charges.
"The government's got their convictions, and we got a deal that we could live with that will allow Dennis to go on with his life and his career," said Paul Scott, James' attorney. Rick Collins, Sarcev's attorney, declined to comment about the case, which took shape not long after Bush, in his 2004 State of the Union address, said: "Get rid of steroids now."
Michael McCann, a professor at Mississippi College School of Law, said the outcomes send a mixed message to teenage athletes. "Certainly, we're doing more about that than we used to. But it seems as if the initial press conference and the arrest are dwarfed by the subsequent reaction," McCann said. "I still think there's value to doing the initial splash, but it undercuts the message. If we're going to arrest people, then you think it would be worth prosecuting them and sending them to prison."
But a spokesman for the U.S. Attorney's office in Des Moines balked at a suggestion that the probe, which drew attention from sports journalists intrigued by an alleged connection to the BALCO drug scandal in California, is letting offenders off lightly. "I don't think we ever said this case was the biggest case ever prosecuted in the Southern District of Iowa," spokesman Al Overbaugh said. "Maybe people built up a higher expectation than they had a right to."
In my law review article Dietary Supplement Labeling: Cognitive Biases, Market Manipulation & Consumer Choice, I discuss anabolic steroids and how children's usage patterns are influenced by
role-modeling. I also discuss how policy-makers and law enforcement officials should carefully consider their messages to consumers, and how high-profile steroid arrests followed by far less enthusastic prosecutions may cause one to reconsider why the defendant was arrested in the first place. The article appeared earlier in Volume 31 of Boston University School of Law's American Journal of Law and Medicine (summer, 2005).
Posted By : Michael McCann
Congressional Hearings on BCS System
Message posted on : 2005-12-07 - 06:43:00
Timothy Epstein notes that the House Committee on Energy and Commerce--charged with regulating America's sports industry--will be conducting a hearing today at 10 AM Eastern Standard time on the Bowl Championship Series ("BCS") system. Committee Chairman Joe Barton (R-TX) calls the system "deeply flawed" and asserts that "college football is not just an exhilarating sport, but a billion-dollar business that Congress cannot ignore." Along those lines, Congress claims an interest in this topic because, along with the acclaim of a national champion, the BCS provides a financial windfall with tens of millions of dollars at stake for teams and conferences who participate.
Though Rep. Barton states that no specific legislation is being threatened, the Committee wants a "comprehensive review" of the BCS system.
Here is the witness list (and a webcast link can be found at this link at 9:50 AM EST):
|
|
Mr. Jim Delaney
Commissioner
Big Ten Conference
Park Ridge, IL, | Mr. Derrick S. Fox
President, Football Bowl Association
President and Chief Executive Officer, Alamo Bowl
San Antonio, TX, |
Mr. William Johnstone
Chairman
Rose Bowl Game Management Committee
Pasadena, CA, | Mr. John Junker
President
Fiesta Bowl
Tempe, AZ, |
Dr. Robert Khayat
Chancellor
The University of Mississippi
University, MS, | Mr. Kevin Weiberg
Coordinator, Bowl Championship Series
Commissioner, Big XII Conference
Dallas, TX, |
Posted By : Michael McCann
Protecting the Injured Reserve
Message posted on : 2005-12-06 - 17:27:00
This weekend's Wall Street Journal contains a thought-provoking look at the NFL's disability program for its players. (subscription required) Ellen E. Schultz tells the story of Victor Washington, now 59, who made it to the Pro Bowl all the way from an orphanage in Elizabeth, New Jersey. Since 1986 he has fought a losing battle against the NFL in attempt to collect disability benefits for physical injuries and depression.
To obtain full disability benefits, a former player must demonstrate that he has "a football related injury." In Washington's case and in many others, this has proven extremely difficult. Washington, who suffers from debilitating shoulder, back, elbow and knee injuries lost because he did not have a single injury. In the case of Darryl Stingley, paralyzed in a preseason game, the single/multiple injury is not an issue. Another murky aspect to these fights is whether or not the injury can be causally related to playing football rather than to pre-existing congenital conditions or the degenerating effect of aging.
The article describes the time and money spent by players fighting appeal after appeal in the morass of ERISA procedure. The NFL, for its part, fights claims in an effort to protect the plan itself and to ward off what it deems to be fraudulent claims. According to filings, the NFL paid its lawyers $3.1 million in 2003 to fight claims of former players. The plan itself is valued at $784 million. Last year, the league paid $1.2 million a month ($14.5 for the year) to 135 players (of a possible 7,561 players covered by the plan.)
Ms. Schultz suggests that an employer as wealthy as the NFL might do more for its employees who, although they might not always have specific, identifiable injuries, certainly can point to their playing days as a strong contributor to their degenerative, arthritic conditions.
Note: Graph is from University of Wisconsin's The Why Files.
Posted By : Chris Callanan
Profiles in Sports Law: Wyc Grousbeck Esq., Boston Celtics Owner
Message posted on : 2005-12-06 - 06:52:00
David Frank of Massachusetts Lawyers Weekly has a terrific feature article on Wyc Grousbeck, managing partner, CEO, and principal owner of the Boston Celtics. (David E. Frank, "Team Player," Dec. 5, 2005). Grousbeck is a securities lawyer who, along with a group of other investors, purchased the Boston Celtics in 2002. He was just 41 at the time. A graduate of Princeton University, Stanford Business School, and the University of Michigan Law School, Grousbeck had been general partner of Highland Capital Partners and an associate at Brobeck, Phelger & Harrison in Silicon Valley.
The article provides excellent detail on the Celtics' purchase, and how Grousbeck's background as a transactional attorney provided crucial expertise in getting the deal done:
Game Plan Chairman Robert L. Caporale, a Boston lawyer who founded the company with former New England Patriot football star Randel E. Vataha, recalls one of the first conversations he had with Grousbeck about the transaction.
"A lot of people are willing to talk about doing something like this, but Wyc stood out in that he clearly had done his homework, had the background to understand what a deal like this would entail, and came into the process as focused on making this happen as anyone I've ever worked with," he describes.
A short time later, Grousbeck boarded a plane to New York and had a discussion with then-Celtics owner Donald Gaston about making the buy.
Grousbeck left the meeting, assembled a group of highly successful investors and formalized a deal with Gaston.
"It didn't take too long," Grousbeck says. "I had been part of so many transactions and seen so many negotiations that I realized that when it's time to strike a deal, both parties know it and you just go out and make the best deal you can."
Grousbeck's legal training has also enhanced his decision-making as Celtics' owner, a fact noticed by other sports executives:
Red Sox CEO Larry Lucchino, a fellow Princeton graduate who like Grousbeck is a lawyer, adds: "A lot of what Wyc and I do has a legal dimension to it, and the mindset a lawyer brings to the table is certainly transferable."
For example, Grousbeck's legal skills came in handy when he and other members of the team had to address the situation of Vin Baker, a highly paid player whose alcohol problems ultimately led the team to terminate his contract.
Although Grousbeck's first approach was to try to work with Baker, team counsel Neil Jacobs remembers that it eventually became clear that his problems were insurmountable.
"We had a real brainstorming session about what was the best approach to take," Jacobs recalls. "With Wyc, we were able to talk things lawyer to lawyer and work out a favorable resolution from a legal perspective that accounted for our rights and responsibilities under the various player and collective bargaining agreements."
This is an excellent piece on how a legal training can enhance one's career in professional sports management. I actually had the good fortune
of meeting Wyc Grousbeck last year (and proceeded to besiege him with questions about my beloved Celtics, which he answered in detail), and I can attest to the general tone of the article: he's a really nice guy who does very well in his profession. And that's the same reason why he answers fan questions on Celtics Blog and partakes in website interviews, like one with NBA Draft Net -- he simply "gets it."
Posted By : Michael McCann
Bowl Teams Fail in the Classroom
Message posted on : 2005-12-06 - 06:10:00
Exhibit 3,293 as to why we should view NCAA basketball and football as cost-free minor league systems for pro leagues, and not as academic experiences for their participants:
This year's bowl-bound college football teams are struggling to meet the NCAA's new academic standards, with 41 percent falling below minimum requirements and almost half lacking a 50 percent graduation rate, according to a survey released Monday.
Developed last year, the NCAA's new academic standard awards APR points based on how many scholarship student-athletes meet academic eligibility standards. A cutoff score of 925 means an estimated 50 percent of those student-athletes are on track graduate. Starting this year, NCAA schools that regularly fall below the 925 score can lose scholarships, face recruiting restrictions and miss postseason play.
In a dry run of the system last year, more than 90 percent of Division I teams across all sports had passing scores. According to Richard Lapchick's report, only 33 of the 56 bowl-bound teams -- 59 percent -- got above the 925 cutoff.
Dr. Richard Lapchick of the University of Central Florida conducted this analysis. As we discussed in March, he conducted a similar study of DI basketball teams (and 43 of the 65 teams in the 2005 NCAA Tournament failed to graduate even half of their players). Lapchick now notes that schools are simply taking in football players who cannot do the work (see: University High School). They likely do so because those students will make a lot of money for those schools (which explains why DI basketball and football players spend between 40 and 50 hours a week playing games, traveling, attending team meetings, working-out, and practicing, all the while their classmates are often precluded from working more than 20 hours a week: those players don't generate revenue for their schools when they are in the classroom, so they are encouraged to be out on the field instead).
No wonder why some premiere athletes want to skip college and go to the pros: instead of being unpaid pros in college, they can be well-paid ones in the pros!
Posted By : Michael McCann
NCAA Shoe Deals: Just Wear It!
Message posted on : 2005-12-04 - 14:01:00
An interesting dispute emerged as the Arkansas State University basketball team began its season at the end of October. The school, like many other schools in today's NCAA, had just signed a contract with Adidas as the exclusive supplier for its sports teams. Ever wondered what would happen if a player tried to refuse to wear the school's designated shoe brand?
Enter senior guard Jerry Nicholas who was forced to sit out the first week of the season because he refused to wear Adidas. Earlier in his career, Nicholas sustained a serious injury wearing Adidas shoes. He felt that he was risking further injury by wearing Adidas. At the very least, he was not comfortable competing in Adidas shoes. The school took the position that in order to play, Nicholas would have to wear Adidas. Nicholas held firm. He threatened to sue the school. Perhaps sensing a public relations issue, Adidas, began to intervene sending an athlete care specialist from the company to work with Nicholas to find an Adidas shoe he would be comfortable with.
Ultimately, the sides resolved the dispute with Nicholas wearing a shoe approved by Adidas. It is unclear whose shoe Nicholas is wearing. The logo is obscured, but one can be sure its not Adidas! With the issue resolved, Nicholas and his team can get on with the business of playing basketball.
Along the way, Nicholas and his school received much coverage and criticism that neither wanted or needed. In a column defending Nicholas' decision Matthew V. Roberson notes that the player received criticism from the likes of Dick Vitale for not following his coach's and school's rules. Many felt that Nicholas was acting the spoiled brat who simply wanted to make a fashion statement. Nicholas' argument, well articulated by Mr. Roberson, is that Nicholas, for whatever reason, did not feel comfortable in Adidas shoes. He suffered a serious injury playing in them and whether or not he was scientifically correct, there was doubt in his mind. Why would his school want to feed into its player's insecurity and doubt?
The school received the expected criticism for placing its financial interest above the well being of one of its players. The real criticism should lie in allowing the dispute to get this far when an obvious solution existed. Was the school concerned that it would not be able to get any of its players on board with its new sponsor's products? Did the school agree to a contract with language that made no exception for athletes with medical or other conditions? Did Adidas insist that every player comply without exception?
Typically, schools resolve these issues as Arkansas State ultimately did. The player can use another brand but must cover the logos. In professional sports and in the Olympics, the Federations and Leagues license manufacturers to permit them to arrange for players to use their equipment in the Federation or League event. In that case, everyone gets paid. In the NCAA, the athlete can never get paid, but so long as competing logos are obscured, what's the harm? Are shoes an integral part of a basketball uniform?
If the Nicholas-Arkansas State dispute had reached a courthouse it would have been interesting. Could an NCAA school compel one of its athletes to use product dictated by a contract to which the athlete might be a beneficiary, but is not a party? With the continued growth of collegiate sponsorship and the increasing prevalence of athletes asserting their rights, we might soon see the issue play out.
Posted By : Chris Callanan
Professor Gregory Bowman on Trade with China & Implications for Professional Sports
Message posted on : 2005-12-02 - 12:57:00
My colleague Professor Gregory Wells Bowman has a provocative op-ed piece in today's Jackson Clarion Ledger. Greg--who practiced international trade law at Baker and McKenzie in D.C. before joining the faculty of Mississippi College School of Law in 2004--addresses U.S. trade with China, and argues that whether we like it or not, the U.S. will not have a significant impact on China's trade policies in the long term. He notes that as China continues to develop a middle class, Chinese consumers will replace U.S. consumers as the primary purchasers of Chinese goods. Couple that fact with the fact that many non-U.S. companies can provide products and technology as good or better than ours, and we can see why the U.S economic influence over China will only dissipate in time.
Greg concludes his op-ed piece with this legal and policy directive:
[M]any U.S. trade policies do not deter Chinese development, but rather simply divert business abroad. In fact, if we eased our current controls on China, we would have greater export trade with China, and that would help our cause in trade discussions with China . . . the U.S. must stop trying to play international trade cop with China and accept that we cannot rig the game in our favor. Only then will we be able to formulate an international trade strategy with China that can maximize our interests.
The op-ed piece pertains to sports in a number of ways. For instance:
* If the United States adopts less restrictive trade policies with China, will professional sports leagues enjoy greater autonomy in pursuing Chinese fans?
* Will a growing Chinese middle class mean more profitable sports leagues in China--and thus, would more American basketball players not good enough for the NBA find playing in China an attractive option?
* How about recruitment of premiere Chinese athletes -- we remember the intense negotiations required with the Chinese government to allow Yao Ming to play in the NBA -- will a more harmonious trade relationship between the nations encourage greater reciprocity between Chinese and American sports associations?
There are many other questions as well. Also, if you are interested in international trade, be sure to check out Greg's publications on SSRN.
Posted By : Michael McCann
Florida AG's Office to Investigate University High School
Message posted on : 2005-12-01 - 21:34:00
Bill McCann alerts me to an investigation by the Florida Attorney General's Office into University High School for criminal fraud. As we discussed on Tuesday, students at the Miami-based University High tend to receive preposterously high grades (exams are untimed and open book; assignments contain the answers in the back; students do not take classes), and many high school athletes have taken advantage of that setting in order to meet the requisite GPA for NCAA scholarship eligibility.
Basically, star athletes who can't cut it at their local high schools transfer to University High, where they suddenly obtain the kind of grades one would expect of Dartmouth's or MIT's incoming class. And then they matriculate to a college with a premiere football program and generate significant revenue for that college.
It's nice to see the Florida Attorney General's Office promptly responding to the New York Times expose, but it's disappointing that schools like this even exist, and it makes you wonder why there aren't more stringent entry rules for prospective schools. I wonder how many of these "schools" are out there?
Also, why are these colleges taking University High grads? I thought college football players were supposed to be "student-athletes" and not "athletes"?
Oh, yeah, they take them so they can make a lot of money for the college. Sorry to ask such a rhetorical question!
Posted By : Michael McCann
Red Sox Want Their Ball Back
Message posted on : 2005-12-01 - 10:33:00
The Boston Globe reports this morning that lawyers for the Boston Red Sox filed suit yesterday seeking ownership of the baseball closer Keith Foulke threw to 1B Doug Mientkiewicz last October to clinch the World Series.
You may recall that Mientkiewicz actually kept the ball after the game was over, refusing to turn it over to the Red Sox. Mientkiewicz and the Sox reached an agreement that the Sox would get the ball temporarily but it would be returned to Mientkiewicz at the end of the year unless ownership had been resolved.
Well, ownership has not, in fact, been resolved and the Red Sox are claiming that they own the ball, essentially because Mientkiewicz was a team employee.
So, who's ball is it? Lucinda Treat, GC of the Sox, spoke to my sports law class last spring, and made a great case that the ball belongs to the Sox (essentially because he was a team employee). However, Mientkiewicz did have actual possession of the ball. It will interesting to see how this plays out.
One other group who may have a claim: the St. Louis Cardinals (Lucinda actually brought this possibility up when she discussed the issue) . . . since the clinching game was, in fact, played at their stadium.
Posted By : Joe Rosen
It's Good to be Manny Ramirez: His Boston Penthouse is for Sale
Message posted on : 2005-11-30 - 19:12:00
If you have $6.9 million to spare, you can buy Manny Ramirez's Ritz Towers' penthouse in Boston. It is 4,500 squre feet, with six bathrooms and four bedrooms, and it has unobstructed views of the Public Garden, The Boston Common, The Charles River, Boston's Back Bay, and the Waterfront. Be sure to check out the virtual tour. I'm not sure if Ramirez is moving to another place in Boston, or if he is simply preparing for a possible off-season trade (Angels? Mets?), but it's a little bit nicer than what most of my Boston lawyer friends seem to have.
Carol Beggy and Mark Shanahan of the Boston Globe have more details on the Ramirez listing. Unfortunately, some of us may not qualify as "pre-qualified buyers," and only they will be allowed to see the property in-person. Without knowing what it financially takes to be considered "qualified," my hunch is that I'm not on the list!
Posted By : Michael McCann
Case School of Law's Symposium on Sports and Eligibility Now Available for Streaming
Message posted on : 2005-11-30 - 17:18:00
Earlier this month, Case School of Law's Center for Law, Technology and the Arts hosted a symposium entitled Sports and Eligibility: Who is Eligible to Play? Panelists included Joe Rosen, Alan Milstein, Chris Callanan, and me (for a complete list, click here). It was a great event, and I thank both symposium chair Peter Carfagna--the Distinguished Visiting Practitioner at Case Law and Senior Counsel at Calfee, Halter & Griswold--and Craig Allen Nard--Director of the Center for Law, Technology & the Arts and Tom J.E. and Bette Lou Walker Professor--for their invitation to participate.
A video of the entire symposium can now be streamed on-line at this link (you are given the choice to watch the symposium through Windows Media Player or Real Player). A future issue of the Case Western Reserve Law Review will provide a transcript of our remarks.
Although I very much enjoyed being a panelist, and I'm delighted to be published in the Case Western Reserve Law Review, the trip's highlight was clearly sitting in a floor seat at the Cavs-Grizzlies game on Friday, November 11. Joe Rosen and I were grateful recipients of Peter Carfagna's Cavs tickets. That was the first time I had ever seen Lebron James in person -- and after watching him play and dominate, I can say with confidence that the new NBA age floor appears even more regrettable, unfair, and possibly illegal.
Posted By : Michael McCann
Michael Irvin - Will his latest issue result in any action?
Message posted on : 2005-11-29 - 12:18:00
As you undoubtedly all know by now, former Dallas Cowboys WR and current ESPN analyst Michael Irvin was arrested on Sunday and was charged with misdemeanor possession of drug paraphernalia after police searched his vehicle during a traffic stop. This is not the first drug-related offense for Irvin, who has gone to great efforts to try to clean up his image after a number of drug-related events in his recent past (including a no-contest plea to felony cocaine possession in 1996).
Irvin says, convincingly in my opinion, that the drug paraphenelia was not his, but belonged to a friend who he is trying to "clean up." However, given his checkered past, his credibility has been questioned.
The ramifications of this offense are unclear at the moment. Legally, he is only going to have to pay a fine, which, for someone of his financial means, is a non-issue. However, will this affect his ESPN career or his Hall of Fame credentials?
I would assume (hope) that ESPN inserted a very broad morals clause in Irvin's contract such that even a minor drug infraction such as this would allow ESPN to terminate its contract with Irvin. However, so far, ESPN seems to be standing by Irvin. Although I did not watch last night, I was inforrmed that Irvin did appear on Monday Night Countdown. I am interested to hear whether he addressed this issue at all.
With respect to the Hall of Fame, Irvin is a semi-finalist for this year's class (he was a finalist last year but was not chosen). Will this latest offense cause him to go no further than the semis?
Posted By : Joe Rosen
The scandal involving NBA referee Tim Donaghy has certainly drawn considerable attention over the last week. In an excellent post here on our blog, Geoffrey examined whether there are persons who may be able to bring civil claims against Donaghy.by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.
We are pleased to announce that Mark Conrad will be guest blogging in early August. Mark is an associate professor of legal and ethical studies at Fordham University's Schools of Business, and has written extensively on sports law and business.broadcasters, can breathe a sigh of relief. Think of the implications if the court had upheld the commission's claim that a fleeting expletive violates indecency and profanity restrictions. Those of us who remember John McEnroe not only recall his tennis exploits, but also his argumentative skills. More than once his protests against officials were laced with profanities, some of which were heard live by millions. If these rants had occurred in 2006 instead of 1986, broadcasters likely would have been sanctioned, to the tune of up to $325,000 per violation under the 2006 Broadcast Indecency Enforcement Act, where Congress raised the maximum fine for an indecency infraction tenfold to $325,000.
Let's think of the ramifications of this interpretation in the context of a sports broadcast. What if fans start yelling four-letter words while protesting a call and the public can hear those protests? What if a microphone picks up the sounds of players cursing? Or the game officials? Each of these events, coupled with the increased fines under the 2006 Decency in Broadcasting Act, chills the broadcaster's First Amendment rights, but is discriminatory as well, since cable and satellite programming is not subject to the indecency standards.But sports broadcasters should note that the 2nd Circuit's ruling represents a temporary victory. It did not address the constitutional questions, but rather focused on the lack of evidence for the FCC's conclusions. The court gave the FCC the opportunity to justify the rules. And if the FCC wishes, it may either seek a rehearing in front of the entire body of judges in the federal appeals court or an appeal to the U.S. Supreme Court.
Congratulations are in order for Indianapolis Star reporter Mark Alesia, who was honored this week by the Society of Professional Journalists with its 2006-07 Investigative Reporting Award for the empirical study (Part I, Part II) he conducted in April 2006 on the extent to which schools and the NCAA profit from star players, how university general funds and students contribute to athletic departments, and the interplay of those contributions with the NCAA's tax exempt status as a non-profit entity. From the study, he built the NCAA Financial Reports Database, which is the most detailed, publicly available database of college athletic department financial information ever assembled.
es. In fact, most would lose millions of dollars.
News broke this weekend of an ongoing FBI investigation into NBA referee Tim Donaghy. Donaghy, who seems to be a man of truly exemplary personal character, is accused of betting on NBA games (surely a violation of league rules), associating with low-level mobsters, and may have bet on games which he called as a referee. There are suggestions that he may have called games to enhance his prospects of beating the "spread." Of course, innocent until proven guilty and all that jazz. Donaghy may face serious criminal sanction, and has already resigned his officiating position, but might he also face civil liability? Some possible claimants:
ESPN columnist Mike Sando has an excellent column on how many have rushed to presume Michael Vick's guilt based on the indictment and its support documents, when there is a significant chance, based on the very demanding criminal conviction standard of "beyond a reasonable doubt" and on the fact that the government's evidence has not yet been studied or challenged, that Vick will be found not guilty.
In a week dominated by news of Michael Vick's indictment, it's nice to read a positive story about an NFL player.
indefinitely--although not germane to a 7-year veteran like McAllister, the average NFL career only lasts three and a half seasons, and we've already discussed serious concerns about the NFL's pension and disability benefits for retired players. Along those lines, I suspect foresight and long-term financial views are not easily obtained when one is a professional athlete, making millions of dollars a year and enjoying the superstar life that goes along with it; the fact that McAllister is preparing for a lucrative post-playing career in the business world (as some other pro athletes have accomplished, such as former NBA star Dave Bing and The Bing Group), likely distinguishes him from the vast majority of players in his league and from those in the other major pro sports leagues.
ESPN's Karl Ravech snagged an interesting interview with President George W. Bush, who was managing general partner of the Texas Rangers from 1989 to 1994, during which time he turned an initial $800,000 investment into a $15,000,000 sale in 1994. As Howard discussed last December, Bush was a finalist for Baseball Commissioner in 1992, but the owners selected Bud Selig instead; obviously, history would be very different had Commissioner Bush run baseball and someone else run the country (for engaging "alternative histories," check out this account of Commissioner Bush and President McCain, and this one of Commissioner Bush rejecting inter-league play and limiting the 1994 baseball strike to only two weeks).
