Blog Archive

Sports Law Blog: Thank You

Message posted on : 2019-03-14 - 09:00:00

It was a chilly day in Cambridge, Massachusetts when Harvard Law School second-year student Greg Skidmore created Sports Law Blog. Greg's first post, dated on November 13, 2003, began by saying that sports law doesn't actually exist but is nonetheless important. "Since there is no such thing as 'Sports Law,'" Greg wrote, "this blog will be dedicated to the law and the role it plays in the sports industry."

Greg, who is now a partner at Robinson and Bradshaw, didn't know he would become a pioneer in blogging. But that is what happened. In the following years, Sports Law Blog became a place for respectful debate, thoughtful discussion and original analysis. There were times when it attractive significant attention, too, especially when ESPN and other national publications linked to the blog's posts. Michael McCann joined Sports Law Blog a couple of years in as Editor, and I joined a few years later as Assistant Editor. A number of Contributors soon followed, particularly Howard Wasserman, Rick Karcher, Geoffrey Rapp and Gabe Feldman who became regular providers of content. Sports Law Blog played an important role in all of our lives.

Mike drew the largest following among not just sports fans but other media which cited the Sports Law Blog posts as authoritative commentary as one major sports law story was followed by another and another. Soon Sports Illustrated came calling and Mike became the go to person for his lay expectations of how the law would treat the various athletes and owners who found themselves in the legal spotlight, perhaps reaching its peak with Deflategate.

As this was happening Twitter became the popular vehicle for many of the contributors to instantly communicate their thoughts on the various sports law issues that seemed to be never ending. Partly as a consequence, and because sports commentary became part of the 24/7 instant news cycle, Sports Law Blog ceased to be the relevant voice it had been in years past. All things run their course.

On March 21, Greg's Sports Law Blog will terminate. You should still be able to find all archived posts on the Wayback Machine, but the blog itself is being taken down. We are incredibly grateful for all the visits by readers and the attention you paid us. Anyone can start a blog, and anyone can start a sports law blog. But we hope Greg's Sports Law Blog will be remembered as one of the best.

Warren K. Zola

Posted By : Warren K. Zola

Paying College Athletes in Alston v. NCAA Would Decrease the Wealth Disparity Between Blacks and Whites

Message posted on : 2019-02-28 - 16:12:00

Paying College Athletes in Alston v. NCAA Would Decrease
the Wealth Disparity Between Blacks and Whites

Richard G. Johnson*

Why would someone write that they'd prefer to stay on the plantation, especially when they never were?!?

For whatever reason, on this past Monday, the New York Times ran an opinion piece by law student Cody J. McDavis, entitled Paying Students Would Ruin College Sports, without noting that he had held a leadership position at the NCAA, when he was in college, or that he had been a pseudo-spokesman for them on occasion?

This read like a NCAA press release, so let's go paragraph by paragraph and break down why its nothing but that (NYT paragraphs in small italics):

When the Duke University basketball star Zion Williamson injured his knee in a freak accident in a game on Wednesday, it reignited a debate over whether student-athletes competing as amateurs on college campuses should instead become paid professionals. If Williamson and other elite players like him are going to risk their professional futures by playing college sports, many wonder, shouldn't they be financially compensated?

Zion had an eight million dollar insurance policy paid for by Duke, and the NBA has now proposed lowering the draft age to eighteen years old and sent that to the NBPA. So, yes, Zion has moved public opinion in a week or so.

Paying student-athletes might sound like a fairer way to treat students who generate so much money and attention for their colleges (not to mention the television networks that broadcast their games). But paying athletes would distort the economics of college sports in a way that would hurt the broader community of student-athletes, universities, fans and alumni. A handful of big sports programs would pay top dollar for a select few athletes, while almost every other college would get caught up in a bidding war it couldn't afford.

'Distort the economics of college sports?' These economics are already distorted, where the zero labor rate allows the Power Five Conference football and men's basketball coaches to be paid in excess of their 'professional' counter-parts, because professional teams have to pay the labor.

The 30 largest universities in the country each routinely generate annual revenues exceeding $100 million from sports, but according to the National Collegiate Athletic Association, most of those revenues are spent covering operating expenses for the school's athletic programs and paying tuition for their student-athletes. The majority of Division I colleges in the N.C.A.A. operate at a loss. In fact, among the roughly 350 athletic departments in the N.C.A.A.'s Division I, only about 24 schools have generated more revenue than expenses in recent years. The nation's top five conferences made over $6 billion in 2015, billions more than all other schools combined, according to an ESPN analysis of N.C.A.A. data.

The NCAA always wants to look at athletic department budgets, instead of looking at the two revenue sports, football and men's basketball, and it always wants to talk about Division I rather than the still largely segregated P5, which is where the real money is, and even then, only in these two sports, which are dominated by black players, who largely do not graduate according to publicly available information.

For instance, looking at the so-called national championship last month, here are the numbers for Clemson vs. Alabama: Black male enrollment, 3.28% vs. 3.54%, black football grant-in-aid, 65.88% vs. 75.29%, adjusted revenue per FB GiA, $781,131.66 vs. $1,567,436.06, black FB federal graduation rate, 57% vs. 36%, white FB FGR, 83% vs. 100%.

Moreover, even if most D-I athletic departments operate in the red, why does that matter, when every undergraduate department other than athletics always runs in the red, since they don't generate individual revenue?

For the have-not universities, however, to continue operating means relying on millions of dollars in debt, funding from their main campus and student fees. Even with that help, some of the major athletic departments are struggling. A recent N.C.A.A. study determined that only about 20 of the 1,000 or so college sports programs in the nation were profitable. What is going to happen when the competition to offer students money is supercharged?

This is gobbledygook. How does the student author think the biology, English, or history departments for example function at any given university? How would paying 85 football and 13 men's basketball players at each of the 65 P5 universities affect the economics of the G5, FCS or the remainder of D-I, let alone D-II or D-III? None of these compete with the P5, so the answer is that it wouldn't matter one tiny bit.

A federal judge in Northern California, Claudia Wilken, will soon decide if student-athletes should instead be paid more like professionals. At the moment, thanks in part to the pressure exerted by a 2015 ruling by Judge Wilken, top N.C.A.A. athletes can receive scholarships totaling tens of thousands of dollars for tuition, room, board and stipends, as well as cost-of attendance compensation. But the association still sets a ceiling on those benefits, and a group of Division I basketball and football players is awaiting Judge Wilken's ruling on whether that ceiling should effectively be lifted.

No, she won't. She has already found that FBS in football and D-I in basketball are in violation of the federal antitrust laws, and she will determine whether there is a pro-competitive reason not to pay the players, and if so, whether there is a less restrictive alternative. Nobody will be required to pay the players, if Judge Wilken prevents the NCAA and its members from continuing to conspire to set the value of football and basketball labor at zero dollars. This is a very serious felony, by the way. And they're college athletes, not 'student-athletes,' which is a derogatory term.

As far as the prior O'Bannon v. NCAA case, Judge Wilken required the NCAA and its members to stop conspiring to set the value of grants-in-aid below the actual cost of attendance. There is no ceiling whatsoever. There is also no such thing as an athletic scholarship. In the P5, the marginal value of these grants-in-aid approach zero, yet the NCAA and its members always want to quote retail, which is not what these largely impoverished group of young men would have to pay, were they to pay out-of-pocket. Also, this was a court order resulting from a finding of a violation of the federal antitrust laws, it was not 'pressure,' which implies that compliance was optional.

The NCAA just cannot bring itself to admit that it violates federal antitrust laws, even though it has been found to have violated them before on multiple occasions, and even though it will be found again to be in violation of these laws, yet nobody has so far been sent to jail for such a very serious felony.

If the plaintiffs in this case are successful, the arms race for top athletes may have no limit. The top 25 or so schools will pay because they can afford to. The remaining 325 or so will be forced to make a decision: not pay their athletes (and risk losing top talent to schools that do) or find a way to pay.

Here we get a false choice, as if it's 25 versus 325 D-I universities, when the 65 P5 universities compete mightily with each other, but not with the 64 G5 universities, which combine to equal the FBS. The 125 FCS universities are not even part of the lawsuit in football. In men's basketball, replacing FCS is the remaining 222 D-I universities, who are part of the lawsuit, but the same competitive observation holds true. Most of the money is in the P5, those universities can afford to compete for talent, and much of that money will come off the over-paid coaches' salaries. So guess who's shouting the loudest?

We have already had a preview of what happens when schools are put in this position. In August 2015, after the N.C.A.A. began allowing Division I universities to adopt 'cost of attendance' stipends, North Dakota State University announced that it would offer such stipends in 16 sports, resulting in a new $600,000 annual expense to be paid by the athletic department. The school's rival, the University of North Dakota, followed suit six days later. What happened? The University of North Dakota cut five teams over the next two years to help pay for the added expense.

This is more nonsense. These non-FBS universities were only prohibited from capping their cost of attendance grants-in-aid in basketball, but these schools chose to offer them in 16 sports, and then UND chose to rearrange how many sports it fielded, which is a business decision made by universities every day, no different than which and how many classes will be taught in any given department. Is the choice really, if you pay young black men in P5 football and men's basketball, UND loses sports? Again, pure propaganda.

The University of Wyoming, too, announced that it would offer stipends to its student-athletes in 2015, resulting in a new expected annual cost of $700,000 to the athletic department. A year later, calls were being made for a reduction in the athletic department because of budgetary concerns. (Those cuts almost certainly would have been made, had it not been for a $4 million subsidy from the state government.)

Again, what is the message? Live in Wyoming, where if you're short $700K, they give you $4MM?!? All universities have budgets and choices. It's called the real world. Is the choice really, if you pay young black men in P5 football and men's basketball, all other universities will threaten to cut their athletic budgets? If so, will all of those other states give their universities more than five times their threatened deficits?!?

Gene Smith, the athletic director at Ohio State University, has said that if the N.C.A.A. pay ceiling were lifted and he were pushed to pay basketball and football student-athletes more than their full-ride scholarship packages, he would not expect to maintain the same number of sports. The chancellor at the University of Wisconsin, Rebecca Blank, has also said that her school would consider cutting sports programs altogether.

So what, if true? This is just scare tactics typical of the antitrust violator called the NCAA. Even if they did, how is that a reason not to pay the black labor in football and men's basketball? Ohio State already offers 32 varsity sports teams, which is more than the 24 sanctioned by the NCAA, so if OSU offered less, would it matter and to whom? Any chancellor who cancelled sports in Wisconsin would be tarred and feathered, which is why Wisconsin walked back Chancellor Blank's testimony the very next day. Unauthorized, fake, and insincere threats are not excuses to steal the money from the labor.

Forcing the N.C.A.A. to pay student-athletes would undermine opportunities for the vast majority of them. It would create a winner-take-all system in which only a handful of top recruits would get a paycheck on top of earning a diploma debt-free.

More propaganda. Nobody will be forced to do anything besides stopping their collusion to set prices for labor at zero. The P5 is not a winner take all design, and paying their players would not impact that one bit. There are 5,525 P5 football grant-in-aid players, who would likely be paid, and there are 845 P5 men's basketball GiA players, who would likely be paid, as well. More than half are black, which is far more than just a handful of young men, many of whom are not graduated.

Similar problems would arise in the case of so-called third-party payments, in which student-athletes could be paid for things like endorsements. Major brands like Nike would pay top football and basketball talent at the biggest schools, while student-athletes in other sports or at smaller programs would be ignored. Currently, corporate funds go to athletic departments and are generally distributed among all sports; with third-party payments, those funds could instead mostly go directly to a few student-athletes, starving the rest.

First, what 'similar' problem? Louisville's Adidas contract went primarily to its coach, and this is a common practice. Second, if Nike would rather sponsor Zion than Duke, as if that would be the choice, why would it matter? Third, endorsement deals at non-P5 universities are largely irrelevant, so the P5 stars are going to take money off of the small schools' plates? And the rest would 'starve?' Just more propaganda. Now some of the coaches, who are currently taking that money …

I am not opposed to young athletes who decide they would prefer to be paid cash to play sports. For those who think that a free education is insufficient as compensation for playing sports, there are other options: The National Basketball Association's developmental league, for instance, offers $125,000 contracts to top high-school talent. Such athletes can also pursue a career playing for other domestic or overseas professional leagues.

This student author was not good enough to go to a revenue men's basketball school, so he was not financially exploited. Who the hell cares what he thinks about whether we should allow exploitation of others? He's gunning to be a lawyer, yet he offers the false choice between accepting continued antitrust violations or going to the G League, which pays like Double-A baseball to most players, and which is not large enough to absorb many college players?

Millions of student-athletes devote their sweat, blood and tears to sports. Some play football and basketball; others swim, run cross-country, play soccer or compete as gymnasts. Only a fraction of them generate money for their schools. We must ensure that the N.C.A.A. is able to preserve its commitment to all of them.

Millions?!? The NCAA says there are more than 460,000 college athletes in 24 sports across its three divisions. Is this student author's thesis that it's okay to steal money from the small fraction that generate revenue and redistribute it to whom, exactly, as it's not now going outside of the P5? Does he contend that the NCAA gives any meaningful support to any university beyond the 64 that participate in March Madness? More propaganda, that if we pay those that earn the money, all of college sports will sink. This is the BS that the NCAA has been pushing forever, and while the 'sky is falling' has worked for decades, we are on the precipice of change, with the question being, will it be slow or fast?

I view college athlete rights as a civil rights issue. I have previously written about the Alston v. NCAA case in the following order: Lying About Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five; Alston v. NCAA and the Emancipation of Black College Athletes; Is America East Conference Commissioner Amy Huchthausen the Key to Unlocking Amateurism in the Upcoming Alston v. NCAA Trial?; Opening Arguments in Alston v. NCAA: Are the Plaintiffs Telling the Right Story?; Alston v. NCAA: What Is this So-Called Product of College Football and Men's Basketball?; Why Are We Tip-Toeing Around Racism in Alston v. NCAA?; and Closing Arguments in Alston v. NCAA: Unwilling Suspension of Disbelief! I have also published a chart, Who's Getting Screwed in College Sports?!?, which sets out the financial and graduation parameters for this so-called product of college football and men's basketball. For those who want more information on this case and its potential consequences, I would hope these might be of help.

Finally, how the NCAA apparently placed an uninformed student opinion in the New York Times I will leave to the investigative journalists, but the Times should be embarrassed, if it didn't know it was running a press release, and it should be shunned, if it did. James Bennet, the current editorial page editor for the Times, sure knew better, as he was the editor back in 2011, when the Atlantic Magazine published Taylor Branch's The Shame of College Sports. Shame on the NCAA, shame on the supposed student author, and shame on the Times.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

How to Think About the NFL's Settlement with Kaepernick & Reid?

Message posted on : 2019-02-16 - 16:54:00

How to Think About the NFL's Settlement with Kaepernick & Reid?

Richard G. Johnson*

Any political movement requires goals, leadership, money, organization, public relations, and so many other moving parts. A political protest does notit just requires enough 'self-immolation' that the power structure is embarrassed enough to notice or change whatever.

When CK decided to kneel on the job during the national anthem, where he was paid eight-figures at the time, nobody seemed to understand how self-destructive this was to him for a variety of reasons, including the following ones:

First, there's no constitutional right to free speech in a private employer context absent those rights bargained for in the collective bargaining agreement, and no such rights were contained therein. Nobody else has such rights on the job, so it's somewhat elitist to think that he should, which implies that somehow he has special status that will give greater impact and meaning to the protest that was anti-elite. Certainly, there were thousands of avenues for him to engage politically off-the-job, but those aren't nationally televised.

Second, the message was hardly targeted: When you have to explain that kneeling during the national anthem relates to police misconduct towards minorities, the obvious connection is missing. People associate the national anthem with good things, not bad things. Try standing in church, when you're supposed to kneel, and see how far that protest goes. There are categories of decorum that are not to be breached, and most people believe that the national anthem is one of them.

Third, the act was designed to be offensive to the large number of people who paid to attend the games, and people do not like to pay to be offended, instead, they pay for the converse. The idea that this is a player forum is simply untrue. Instead, it was a player hijacking. There are only eight regular season home games, that for a family of four costs on average about $500, which is a huge expense for a middle-class family, and you can't simply get up and walk out and get a refund like you can at a movie. Forcing people to be held hostage on their dime to your politics, right, wrong, or indifferent, still makes them hostages of sorts, and nobody likes that.

Fourth, CK wasn't a victim, he opted-out of a lucrative contract, and he knew or should have known that no rational employer would hire a labor organizer, who advocates to continue to organize labor in ways that are not generally accepted. No collusion was necessary to predict that nobody would ever hire him again. Life isn't fair, and he didn't have a right to be hired by anyone for anything, absent collusion to exclude him, and then only because collusion is prohibited by the CBA, or absent violation of the discrimination laws. Making a protest necessarily involves sacrifice, so either he intended the result he got, or he didn't really intend to protest, when you can't have it both ways, yet the victim narrative ignores this basic premise.

Fifth, was CK an ineffective and self-interested leader or was he betrayed by the Players Coalition, when it 'sold out' to the NFL? One could view it both ways.

Sixth, the NFL is seventy percent black players with viewership that is mostly white. These players have a limited shelf life, and they are lucky to play long enough just to vest in the pension. They don't have many lucrative options after their generally short playing years are over. Of maybe twelve hundred black players, maybe one percent were active in the PC. That's like twelve players. That's not a political movement, yet they have been able to work with the NFL to make some progress. Is that a sin or a reality check?

Seventh, black NFL players do not as a class view it as their job to fix society or solve racial problems, instead, most of them are trying to make sure that they never have to go back to the lives of poverty in which many of them grew up. When the so-called football protests were going on, they were short-lived, and they generally were not supported by groups that should have, like Black Lives Matter, the NAACP, and so on. Instead, the ACLU was most active in supporting them, and it cared because of the free speech angle, not because of racial justice. The reality is that there was no organized national support for the black players protesting during the gameshad they protested separate from the games, they may have built a large following quickly, but that would have required hard work.

Eighth, the settlement tells us nothing about the relative weight of what evidence would have been presented, and the fact that both sides agreed to confidentiality probably indicates that it was a settlement that made nobody happy, but that was one that the parties could live with. That's kind of the definition of a perfect settlement. CK didn't sell out at any price, instead, he had no national organized support, he separated himself from the players' union, because of its perceived alliance with the NFL, and he battled this himself. Whatever he did on his own without any concrete assistance from anybody else is exactly what he should have done. Certainly, if he had won, nobody expected him to donate his proceeds to the undefined movement or protest? This was about him, not us, however us is defined. Settle or not settle, that was about him and nobody else. Whether he violated his own principles is something that only he will ever know.

Ninth, what we're left to ponder is, if athletes have a 'podium' to speak out, which athletes are we talking about, because most don't. The veteran stars signed to long-term and lucrative deals do, but then what is their interest to take on the world and upset their employment and endorsement deals? This idea that athletes are somehow empowered to protest is as far from the truth as possible: Most of them have worked their entire lives to get to a position where they can 'make it,' and they're generally not giving that up for a cause. The relative risk to them versus the average person to protest places outsized risk on them, when the popular motif is that they have some sort of platform, because the press wants to interview them on a regular basis about their performance and generally nothing else. Sports writers are generally not out to change the world either, if you haven't noticed, with the exceptions being some national columnists of stature.

I have been a grand jury foreman in Cleveland during times of police misconduct. I have inspected the county jail in that capacity and called attention to problems well before they became publically recognized problems. I am involved in the ongoing Policing project of the American Law Institute. I care greatly about the institutional racism inherent in Power Five Conference football and men's basketball, and I write on that topic and speak to college and graduate school programs regularly. Notwithstanding all of that, I do not know what it is to be black, and I do not suffer the daily slights and loss of self-esteem.

I recognize that not only does the conversation about race need to change, the understanding that racism is premised on who gets the money and power needs to come to the forefront. And I know that there are a lot of people working on a variety of fronts, usually with little or no benefit to themselves, to try to move public opinion. Those without, because of a hundred years of Jim Crow rightly say, 'When do we get ours?' And whites who are still fleeing integration through charter, parochial, and private schools, after fleeing the neighborhoods, those whites generally do not consider themselves to be racists. Blacks know very well who's still getting the short end of the stick, and they know that every day racism is alive and well.

At the end of the day, in my view, CK has been a hindrance, not a furtherance, of the discussion about race. Whether he's a good guy or a bad guy, out for everyone or out for himself, I do not know, but objectively, he has not been productive in forming or moving public opinion forward on racial issues. Instead, he has been polarizing, and become a foil to DJT. As much as he and ER deride the PC, it at least has something to show for itself, albeit by partnering with the so-called enemy NFL. What exactly does CK have to show for his efforts that may or may not be sacrifices? I would submit, not much, if anything at all, which like all failed protests are missed opportunities to get a message across. Instead, he's become a corporate brand more than anything else, which is its own unique form of successful messaging or selling out, depending upon your viewpoint.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Frivolous lawsuits for me but not for thee

Message posted on : 2019-01-22 - 23:34:00

What are the odds that the New Orleans Saints season-ticket holders bringing these absurd lawsuits vote Republican and support litigation reform?
Posted By : Howard Wasserman

Closing Arguments in Alston v. NCAA: Unwilling Suspension of Disbelief!

Message posted on : 2018-12-22 - 18:28:00

Closing Arguments in Alston v. NCAA:
Unwilling Suspension of Disbelief!

Richard G. Johnson*

The arrogance of federal court judges is something else, and in Alston v. NCAA, Senior District Court Judge Claudia Wilken is such an expert from O'Bannon v. NCAA that she decided to try this case mostly on the papers rather than live, which is presumptuous and unprofessional, in my opinion.

As such, the plaintiffs' opening close, the defendants' close, and the plaintiffs' closing close, were book-length and heavy with footnotes, with a four-hour hearing on December 18th, which was reported live via Twitter by Dorothy M. Atkins, blogged on SportsGeekOnomics by economist Andrew D. Schwarz, and then reported in Courthouse News by Helen Christophi. Reading the live Twitter feed is fascinating, because you really get the flavor of the inanity that was occurring in real time.

In The Derogatory Term 'Student-Athlete,' I explained why this propaganda term should be stricken from the lexicon, so the plaintiffs only used the term twenty-two times in their two closing briefs, and then only as part of case names or as contained in quotations. That's some progress, but the defendants continued to use it 191 times in theirs, yet the plaintiffs never called them on this manipulative behavior, so progress measured in millimeters. However, since the Judge used this term some 258 times in her O'Bannon opinion, this was a missed opportunity to advocate an important theme and move the story line of the case.

I have previously written about this case in the following order: Lying About Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five; Alston v. NCAA and the Emancipation of Black College Athletes; Is America East Conference Commissioner Amy Huchthausen the Key to Unlocking Amateurism in the Upcoming Alston v. NCAA Trial?; Opening Arguments in Alston v. NCAA: Are the Plaintiffs Telling the Right Story?; Alston v. NCAA: What is this So-Called Product of College Football and Men's Basketball?; and Why Are We Tip-Toeing Around Racism in Alston v. NCAA? I have also published a chart, Who's Getting Screwed in College Sports?!?, which sets out the financial and graduation parameters for this so-called product of college football and men's basketball.

If one reads all of the above, one will quickly come to the conclusion that we are in the land of unwilling suspension of disbelief, which means that fancy lawyers and a fancy Judge are telling themselves and us a story that is wholly unbelievable and untrue, and I for one have no patience for this harmful fiction that ignores reality.

To over-simplify, Judge Wilken has already found a violation of the federal antitrust laws, and she is now immersed in an academic calculus called the Rule of Reason, where she determines if there are pro-competitive justifications for the illegal conduct, and if so, if there are less restrictive ways to achieve that goal.

The plaintiffs argue that there is no pro-competitive rationale for not paying the players, but if there is, then the Judge should allow the conferencesNCAA members themselvesto become mini-antitrust violators, but enjoined from conspiring with each other, which they say is a less restrictive alternative. They also argue the Judge should balance the value of the alleged pro-competitiveness against the harm caused, if they fail to prove a less restrictive alternative.

The defendants argue that their product is not paying the players, so that they're 'amateurs,' which allows them to 'integrate' into the student body, and is thus pro-competitive, and that if the players are paid, their 'product' will self-immolate due to lack of viewership. They also argue that the plaintiffs have not put a price on the pros and cons, so that there is nothing for the Judge to balance, and that she must therefore choose for them, if she does not find a less restrictive alternative. Like Mr. Spock, the defendants point out that if the product is defined by a lack of pay, then any pay destroys the product, so that there is no possible less restrictive alternative. The NCAA has successfully sold this line for about half a century.

So let's make this kindergarten for Judge Wilken:

The Ninth Circuit has already told her the law in O'Bannon, and the only market that has changed is the autonomy given to the Power Five Conferences, so that is the relevant market that the Ninth Circuit will listen to, with everyone else being governed by O'Bannon.

Looking only at P5 football and men's basketball is a gift from God, because that's where the majority of the money is, that's where the majority of the teams are black, and that's where a majority of those blacks do not graduate. From this view, what we are left with is a broken balloon of the NCAA's fluffy propaganda. This case is about not paying the black labor that the sixty-five P5 universities largely don't educate. Justify that, Judge Wilken, and you are a racist.

The big lie about the 'product': The majority viewer whites won't watch the broadcasts, if the black labor is paid, well, if you stop the price fixing, the universities still won't pay them, if their viewership would get cancelled, right? But that won't happen, and everyone knows it. The so-called product is a self-defeating sham, because if it's true, you don't need a rule to enforce it. Kind of Econ 101 for kindergarteners.

The token lie about 'integration': When you look at the abysmal black graduation rates in P5 FB and MBB, well, can you really say with a straight face that this is about 'integration?' Especially when the black male student body is only 2.4% in the P5, but P5 FB is 55% black and MBB is 56% black. The 65 P5 universities are largely segregated, not integrated, as far as the black labor is concerned. Fact. Cold, hard, nasty, and very real fact. Shameful, too. Go back and reread my piece, Why Are We Tip-Toeing Around Racism in Alston v. NCAA?, and ask yourself, why are we, indeed? Then consider that in the closing arguments, race and racism are not even mentioned by the white lawyers to the white Judge in a trial with mostly white witnesses. Tip-toeing they are, hoping that none of us will notice.

The bottom line lie: Nobody besides me, and I mean nobody, has pointed out that on these major university campuses, we're supposedly trying to integrate 85 footballers and 13 basketballers, for a total 98 players. Nobody has said, does the sky really fall on any given campus, if we pay 98 guys? The silliness of it is self-evident. The effect on where that money comes from, the inflated coaches' and staff's salaries, explains the vehement opposition. So does racism.

If you care, write Judge Wilken and tell her straight up that any decision that does not recognize the realities that apparently everyone wants to ignore is not okay, and tell her that you expect her to be and do better than she did in O'Bannon, where she countenanced the theft of players' NILs, as I explained in my amicus brief to the Ninth Circuit to no avail.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

A different take on the purpose of the Infield Fly Rule

Message posted on : 2018-12-19 - 19:13:00

Baseball historian (and paralegal) Richard Hershberger for the fall 2018 issue of SABR's Baseball Research Journal argues that the infield fly rule developed from the difficulty of defining and determining when an infielder had caught the ball. He traces the 20-year evolution of the definition of catch, including the development and use of a "momentarily held" standard for only infield-fly situations (the batter is out if the infielder "momentarily held" the batted ball). This marked an "expansion" of when the batter is out, removing for baserunners, umpires, and infielders confusion over when the ball was caught and thus over whether they were forced to run. The ultimate Infield Fly Rule took this to its logical conclusion, but rendering the batter out no matter if, how, or how long the infielder touched the ball.

I am sorry this paper was not out while I was writing the book; I would have enjoyed discussing and responding to it in the book.

Posted By : Howard Wasserman

Infield Fly Rule is in Effect

Message posted on : 2018-12-05 - 16:57:00

978-1-4766-6715-7I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.
Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.

Posted By : Howard Wasserman

Packers fan finds counsel for First Amendment claim against Bears

Message posted on : 2018-11-02 - 14:38:00

I have written about Beckman v. Chicago Bears, a lawsuit by a Bears season-ticket holder and Packers fan who was prevented from going onto the field in Packers gear. Proceeding pro se (although with some informal guidance for a time), Beckman survived a 12(b)(6) by a very forgiving district court. It now appears Beckman has obtained counsel for the long-haul--the First Amendment Clinic at Duke and a Chicago attorney named Michel Lieber.

I think his First Amendment claim is a good one, if he can get past the state action problems. I remain surprised it took him this long to find counsel, but I am glad he found someone. This could get interesting.

Posted By : Howard Wasserman

The Basketball Hoops Trial: A Threat to Us All

Message posted on : 2018-10-31 - 18:58:00

The Basketball Hoops Trial: A Threat to Us All

Richard G. Johnson*

A week ago, on October 24, 2018, James Gatto, Merl Code, and Christian Dawkins were convicted of conspiracy to commit wire fraud related to the University of Kansas, the University of Louisville, the University of Miami, and North Carolina State University, all of which are members of the Atlantic Coast Conference except for Kansas, which is a member of the Big 12 Conference, which themselves are two of the so-called Power Five Conferences. All three defendants were also convicted of wire fraud against Louisville, but only Gatto was convicted of wire fraud against Kansas. There were no wire fraud charges related to Miami or North Carolina State.

In a press release issued that same day from the Deputy U.S. Attorney for the Southern District of New York, Robert S. Khuzami, he said:

Today's convictions expose an underground culture of illicit payments, deception and corruption in world of college basketball. These defendants now stand convicted of not simply flouting the rules but breaking the law for their own personal gain. As a jury has now found, the defendants not only deceived universities into issuing scholarships under false pretenses, they deprived the universities of their economic rights and tarnished an ideal which makes college sports a beloved tradition by so many fans all over the world.

What Mr. Khuzami meant by 'tarnish[ing] an ideal which makes college sports a beloved tradition by so many fans all over the world' is unknown. For instance, didn't Louisville do that already, when it had to forfeit the national championship due to its basketball coaches paying for prostitutes for its players and potential recruits?

In that press release, Mr. Khuzami gave an overview of the trial:

As found by the jury, Gatto, Code, and Dawkins brokered and facilitated the payments funded by Adidas to the families of high school and college aged basketball players in connection with decisions by those players to commit to Adidas-sponsored schools and a promise that the players also would retain the services of Dawkins and sign lucrative endorsement deals with Adidas upon turning professional. The payments, which the defendants took great lengths to conceal from the victim-universities, served to defraud the relevant universities in several ways.

First, because the illicit payments to the families of student-athletes rendered those student-athletes ineligible to participate in collegiate athletics, scheme participants conspired to conceal these payments from the universities, thereby causing them to provide or agree to provide athletic-based scholarships and financial aid under false and fraudulent pretenses. Indeed, the defendants and their co-conspirators, who included the families of the student-athletes and, in certain instances, one or more corrupt coaches at the universities, knew that, for the scheme to succeed and the athletic scholarships to be awarded, the illicit payments had to be concealed from the universities, and that certifications, falsely representing that the student-athletes were eligible to compete in Division I athletics, would be submitted to the universities.

Second, the scheme participants further defrauded the universities by depriving the universities of significant and necessary information regarding the non-compliance with NCAA rules by the relevant student-athletes and their families, and, in some cases, by certain corrupt coaches involved in the scheme. In doing so, the scheme participants interfered with the universities' ability to control their assets and created a risk of tangible economic harm to the universities, including, among other things, decision-making about the distribution of their limited athletic scholarships; the possible disgorgement of certain profit-sharing by the NCAA; monetary fines; restrictions on athlete recruitment and the distribution of athletic scholarships; and the potential ineligibility of the universities' basketball teams to compete in NCAA programs generally, and the ineligibility of certain student-athletes in particular.

That was the prosecution's case, which should have been dismissed on the defendants' motion for acquittal, but it wasn't, and now the sentencing of these three men is set for March of 2019.

A. An Unusual Legal Theory & Manipulating the Storyline

The charges at the core of these cases are based on an unusual legal theory that casts universitieswho stood to benefit from recruits playing for wildly profitable basketball teamsas victims of fraud. What prosecutors call bribes, legal experts note, would be considered signing bonuses and referral fees in other industries. The payments are illicit only because the NCAA prohibits amateur athletes from making money from their talents and bars coaches from facilitating, and profiting from, meetings between agents and athletes.

'If you take away the NCAA rules, there's no criminal case here,' said Randall Eliason, a former federal prosecutor and law professor at George Washington University. 'There are some legitimate questions about whether this was a wise use of resources.'


The prosecution's theory of the case has raised eyebrows in legal circles. Gatto, Code and Dawkins defrauded [the universities], prosecutors argue, by conspiring to pay families of top recruits to ensure they attended the schools, despite knowing this would break NCAA rules. Their scheme 'created a risk of tangible economic harm,' the indictment states, because if these payments came to light, the NCAA could have penalized [the universities], potentially depriving the schools of revenue disbursements from the lucrative men's basketball tournament.

Perhaps the most notable criticism of this theory has come from Eliason, former assistant U.S. attorney in D.C. who specialized in white collar crime and ran his district's public corruption unit for two years.

The typical fraud case, Eliason explained in a phone interview, includes a few hallmarks: an intent to harm the victim, deception and a benefit at the victim's expense.

'Those are all absent here. These guys didn't want to harm the universities; they wanted to help them … and according to the prosecutors, they were working with top representatives of these universities' basketball programs,' Eliason said. 'How can you say the university was deceived?'

Much of life is how you tell the story, and here the prosecutors manipulated the storyline with the approval of the trial judge, so that the jurors got anything but a clear view of how elite college basketball actually works.

For instance, it seems to be irrelevant that Adidas claimed that now-fired Louisville Coach Rick Pitino was involved in all of this, and it likewise seems irrelevant that Pitino received about 98% of the Adidas endorsement money that was supposed to go to Louisville, which was over $1.5MM per year for the five years between 2013 and 2017.

There was only one person getting rich off of Adidas money in this so-called scheme, and it was Coach Rick Pitino, yet he has not been indicted? Not surprisingly, none of this made it to Mr. Khuzami's press release, because it doesn't fit the storyline. The jury didn't hear it, because no reasonable jury would have convicted the small fry, while letting the whale get away with all of the money.

B. Such a Prosecution Has Only Happened Once Before

This is only the second time that a federal fraud case has been brought due to payment of money that ostensibly destroyed a college athlete's eligibility.

The first time was in the 1980s, when Norby Walters signed up college players to future-dated agent contracts with the intent that he would represent the players, when they went pro. Walters gave them money and cars to induce them to sign with him, while they were still in college, thus making them ineligible from the NCAA's point of view. Walters was indicted and eventually entered an Alford guilty plea to mail fraud, which was reversed on appeal in 1993. The reasoning was that the NCAA's student-athlete forms were not integral to the alleged fraud, Walters had not caused the mailing of such forms, and that the payment by the universities of grants-in-aid to ineligible college athletes did not amount to Walters obtaining of any of the universities' property.

In the Walters opinion that was written by the famous Judge Frank H. Easterbrook, which has been memorialized as one of his greatest opinions in a law review salute to him on his twenty-fifth year on the Seventh Circuit, much wisdom was dispensed, all of which flew right by the Gatto Judge, when he denied the defendants' motion to dismiss the indictment here.

First, Judge Easterbrook pointed out the obvious, which is that '[f]orms verifying eligibility do not help the plan succeed; instead they create a risk that it will be discovered if a student should tell the truth. And it is the forms, not their mailing to the Big Ten, that pose the risk.'

As an aside, nowadays a potential college athlete sets-up an account with the NCAA Eligibility Center, which determines the athlete's initial eligibility, before setting up an optional account with the Collegiate Commissioners Association in order to sign a National Letter of Intent, if one is intended. After matriculation, but prior to engaging in intercollegiate athletics, the university will request the athlete to sign a NCAA Student-Athlete Statement, which now has six parts, some of which relate to eligibility, but another of which purports to require the athlete to waive his federal educational privacy rights in order to play intercollegiate athletics, which is illegal to require, yet the NCAA and the universities do.

By the time this form is signed, the athlete has already obtained his grant-in-aid for the year, and the athlete is already a freshman student. This form plays no part in the athlete actually receiving a grant-in-aid, but the failure to sign one, when asked, may result in the revocation of that grant. There is no criminal statute that requires an athlete to honestly complete this form, and there is no criminal penalty for dishonestly completing this form. This form does not purport to have anything to do with a grant-in-aid, and that term is not mentioned in the form in any fashion.

Second, Judge Easterbrook eviscerated the government's idea that Walters need not have gained from the fraud, which is at issue in this case, too:

According to the United States, neither an actual nor a potential transfer of property from the victim to the defendant is essential. It is enough that the victim lose; what (if anything) the schemer hopes to gain plays no role in the definition of the offense. We asked the prosecutor at oral argument whether on this rationale practical jokes violate [18 U.S.C.] § 1341. A mails B an invitation to a surprise party for their mutual friend C. B drives his car to the place named in the invitation. But there is no party; the address is a vacant lot; B is the butt of a joke. The invitation came by post; the cost of gasoline means that B is out of pocket. The prosecutor said that this indeed violates § 1341, but that his office pledges to use prosecutorial discretion wisely. Many people will find this position unnerving (what if the prosecutor's policy changes, or A is politically unpopular and the prosecutor is looking for a way to nail him?). Others, who obey the law out of a sense of civic obligation rather than the fear of sanctions, will alter their conduct no matter what policy the prosecutor follows. Either way, the idea that practical jokes are federal felonies would make a joke of the Supreme Court's assurance that § 1341 does not cover the waterfront of deceit.

As another aside, the reality is that people cheat all of the time in their daily lives, where those cheats could be shoved into a federal mail or wire fraud charge, yet we all recognize the silliness of this. We may despise the cheater, but that does not mean that we make a criminal of him for every 'waterfront of deceit.' The requirement that federal fraud benefit the defendant is the line in the sand, where we can clearly measure if the deceit was for his benefit, and if so, for how much?

Third, Judge Easterbrook took on the politics that are involved, when the NCAA is concerned, which are equally true today, a quarter century later (internal citations omitted):

Practical jokes rarely come to the attention of federal prosecutors, but large organizations are more successful in gaining the attention of public officials. In this case the mail fraud statute has been invoked to shore up the rules of an influential private association. Consider a parallel: an association of manufacturers of plumbing fixtures adopts a rule providing that its members will not sell 'seconds' (that is, blemished articles) to the public. The association proclaims that this rule protects consumers from shoddy goods. To remain in good standing, a member must report its sales monthly. These reports flow in by mail. One member begins to sell 'seconds' but reports that it is not doing so. These sales take business a way from other members of the association, who lose profits as a result. So we have mail, misrepresentation, and the loss of property, but the liar does not get any of the property the other firms lose. Has anyone committed a federal crime? The answer is yesbut the statute is the Sherman [Antitrust] Act, 15 U.S.C. § 1, and the perpetrators are the firms that adopted the 'no seconds' rule. The trade association we have described is a cartel, which the firm selling 'seconds' was undermining. Cheaters depress the price, causing the monopolist to lose money. Typically they go to great lengths to disguise their activities, the better to increase their own sales and avoid retaliation. The prosecutor's position in our case would make criminals of the cheaters, would use § 1341 to shore up cartels.

Fanciful? Not at all. Many scholars understand the NCAA as a cartel, having power in the market for athletes. The NCAA depresses athletes' incomerestricting payments to the value of tuition, room, and board, while receiving services of substantially greater worth. The NCAA treats this as desirable preservation of amateur sports; a more jaundiced eye would see it as the use of monopsony power to obtain athletes' services for less than the competitive market price. Walters then is cast in the role of a cheater, increasing the payments to the student athletes. Like other cheaters, Walters found it convenient to hide his activities. If, as the prosecutor believes, his repertory included extortion, he has used methods that the law denies to persons fighting cartels, but for the moment we are concerned only with the deceit that caused the universities to pay stipends to 'professional' athletes. For current purposes it matters not whether the NCAA actually monopsonizes the market for players; the point of this discussion is that the prosecutor's theory makes criminals of those who consciously cheat on the rules of a private organization, even if that organization is a cartel. We pursue this point because any theory that makes criminals of cheaters raises a red flag.

Cheaters are not self-conscious champions of the public weal. They are in it for profit, as rapacious and mendacious as those who hope to collect monopoly rents. Maybe more; often members of cartels believe that monopoly serves the public interest, and they take their stand on the platform of business ethics, while cheaters' glasses have been washed with cynical acid. Only Adam Smith's invisible hand turns their self-seeking activities to public benefit. It is cause for regret if prosecutors, assuming that persons with low regard for honesty must be villains, use the criminal laws to suppress the competitive process that undermines cartels. Of course federal laws have been used to enforce cartels before; the Federal Maritime Commission is a cartel enforcement device. Inconsistent federal laws also occur; the United States both subsidizes tobacco growers and discourages people from smoking. So if the United States simultaneously forbids cartels and forbids undermining cartels by cheating, we shall shrug our shoulders and enforce both laws, condemning practical jokes along the way. But what is it about § 1341 that labels as a crime all deceit that inflicts any loss on anyone? Firms often try to fool their competitors, surprising them with new products that enrich their treasuries at their rivals' expense. Is this mail fraud because large organizations inevitably use the mail? '[A]ny scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises' reads like a description of schemes to get money or property by fraud rather than methods of doing business that incidentally cause losses.

'It is [indeed] cause for regret if prosecutors, assuming that persons with low regard for honesty must be villains, use the criminal laws to suppress the competitive process that undermines cartels.' Boy is it! Ditto when they criminalize private association bylaws. The ramifications of this are frightening. Needless to say, the NCAA is jumping for joy. But would it be, if the prosecutors were pursuing the NCAA and the universities for felony antitrust violations, where the NCAA and each university could be fined up to $100,000,000, and where their culpable executives could be imprisoned for up to ten years? That's what should be happening.

C. What Conduct Wasn't Charged

As just mentioned, the NCAA and the universities were not charged with felony violations of the antitrust statutes, when in the pending Alston v. NCAA case, they have already been found to be in violation of those lawsso why not, when it would seem like a lay-up for the prosecutors?

If the prosecutors thought that Gatto was stealing from Adidas, then they would have charged him with fraud, wire fraud, theft, etc., of funds from his employer, yet they didn't? Why not? As an executive of Adidas, did the prosecutors simply assume that this was authorized conduct? If so, why wasn't Adidas, itself, indicted? It's either one or the other, but it cannot be neither!

Likewise, if the prosecutors thought that Code was money laundering or committing tax fraud, they would have charged him and his AAU team with such crimes, yet they didn't? Why not?

To show how much the prosecutors simply didn't understand about college sports, Dawkins' conduct violated the versions of the Uniform Athlete Agent Act enacted in all four states at issue, yet those statutes aren't mentioned in the final indictment. Dawkins' conduct also violated the federal Sports Agent Responsibility and Trust Act, which should have preempted all of the charges against him, yet his lawyer never mentioned this to the judge, who would have then lacked subject matter jurisdiction over the SPARTA claims. If Congress had wanted to criminalize actions under SPARTA, it certainly could have done so, but it didn't. So why didn't Dawkins' lawyer bring this to the court's attention? Maybe he didn't understand college sports either?

D. The Conduct Charged Wasn't Illegal

First, as a basic premise, the reader needs to understand that under federal and all states' laws, crimes are defined by statute, and there are no common law crimes. The reason for this is to put everyone on notice as to what's legal and what's illegal, which is a basic building block of due processthat the person have fair notice that he could be charged for certain behavior or conduct. Not a single statute is mentioned in the final indictment that specifically covers any conduct at issue here. The only statutes mentioned are for wire fraud and conspiracy to commit wire fraud. If enough people believe that the conduct here should be illegal, then they are free to petition their federal or state governments to enact such legislation to cover future acts that they deem criminal, but criminal liability cannot be imposed ex post facto.

Second, the players, their families, the coaches, and third parties, like Adidas and its agents, are not members of the NCAA, and they have no contractual or fiduciary relationship with the NCAA. The universities have a contractual relationship with the NCAA. The players and coaches have a contractual relationship with the universities. The NCAA indirectly enforces its bylaws against the universities' players and coaches by extorting those university members. Neither the federal government nor any of the several states have appointed the NCAA to regulate college sports.

There is no statute requiring anyone to tell the truth to the NCAA, and lying to the NCAA is not illegal, although if a university lies, it may breach their contract between them. The NCAA's remedy would then be for a breach of contract or tortious interference with contract claim against the universities, players, coaches, and/or third-parties, subject to the law applicable to those claims.

There is no statute allowing the NCAA to dictate what pre-college athletes may do, yet the NCAA attempts to do so by the same extortion vehicle. There is no statute allowing the NCAA to hold innocent players liable for any actions that it doesn't like that are taken by persons related to those players without their knowledge, yet the NCAA attempts to do so again by the same extortion vehicle.

Likewise, there is no statute requiring anyone to tell the truth to the universities at issue here, and lying to these universities is not illegal, although if a player or coach lies, it may breach their contract between them. These universities' remedies would then be for a breach of contract or tortious interference with contract claim against the players, coaches, and/or third-parties, subject to the law applicable to those claims.

Third, the defendants here did not make any false affirmative statements to the NCAA or any of the universities at issue. Instead, they were ostensibly supposed to voluntarily warn the NCAA and the universities at issue what they knew about any player at issue, when the defendants had no duty to do so. There is no statute imposing any such duty or prescribing any penalty for failing to do so. Whether the defendants knew or didn't know that the players would make statements regarding their eligibility to the NCAA or to the universities at issue does not change this fact. It also doesn't matter if they knew whether the players were going to innocently versus intentionally make false statements to these entities. And it doesn't matter, precisely because these defendants had no duty to warn anyone about anything related to this prosecution.

Under the prosecutors' theory, it does matter that it was the defendants who ruined the players' athletic eligibility, yet there is no proof that any of these players were eligible to play under the NCAA's amateurism rules prior to their family members accepting money from Adidas. Just this failure of proof should have resulted in an acquittal in-and-of-itself.

Fourth, the NCAA is a cartel like Judge Easterbrook described above, and it has been held by the U.S. Supreme Court and the Ninth and Tenth Circuits, among others, to have violated the federal antitrust laws against universities, coaches, and players. As explained by Sally Jenkins of the Washington Post, the only appropriate case here would have been one for racketeering against the Power Five Conferences and their sixty-five member universities, yet the low-hanging fruit was targeted instead.

This is what the cartel looks like for NCAA Division I men's basketball: The illusory prize at the end for these young men is to be drafted by the NBA, but the NBA draft has only sixty slots annually, whereas D-I men's basketball has 4,563 grant-in-aid players annually (351 teams with thirteen players per team). The number of 'one-and-dones' is anywhere from nine-to-eighteen players in any given year.

If those drafted come only from college, the rate would be 9.47% for the P5 Conferences (65 teams, 845 players), 4.77% if you add in the Group of Five Conferences (plus 64 teams, 832 players), and 1.75% for all of D-I (plus 222 teams, 2,886 players), yet those drafted come from many other places as well, so the actual draft rates are much lower. Even then, being drafted is hardly a guarantee of a successful professional career.

The money is in the P5 Conferences, which produce 64.8% of D-I men's basketball adjusted revenue, or $1.2BB, with adjusted revenue per player of $1.38MM. The numbers drop to $374K per player at G5 and then to $119K per player for the rest of D-1. These numbers are averages, but according to economics Professor David Berri, at the P5 level, top players could be worth a multiple of this amount in a free market, meaning several millions in some instances.

The federal graduation rate is 45.0% for P5 men's basketball. Fifty-six percent of these teams are black, yet only 2.4% of the student body are black males, which means that these sixty-five major research universities resemble segregation. According to the College Sports Research Institute, the adjusted graduation gap between white versus black players in P5 is almost twice for basketball (-21.6% vs. -38.5%).

Why are the graduation rates so low? As explained by the president of the University of Michigan a few years ago: 'We admit students who aren't as qualified, and it's probably the kids that we admit that can't honestly, even with lots of help, do the amount of work and the quality of work it takes to make progression from year to year.' When you look at the graduation data for all sixty-five P5 universities, it's obvious that this is the explanation. Keep in mind that the 'free education' is the quid pro quo for not paying the players. When the education is illusory, the offer is fraudulent by definition.

For the players at issue in the Gatto trial, all of them signed fraudulent contracts to play at those schools, if the basis of the contract was to get a real college education. If you buy into the prosecutors' theory, then you have multi-lateral fraud on all sides of the educational transactions, yet they only indicted one side, which is hardly fair and would be grounds for dismissal alone.

So when Judge Easterbrook discussed above why people cheat cartels, one reason is because of this kind of exploitation, where the universities at issue in this case largely do not educate the black athletes that they do not pay, yet these players' market values are huge given the revenue per player in the P5 Conferences, which include Kansas, Louisville, Miami, and North Carolina.

This value is further bolstered by the recent efforts by the HBL, the NBA G League, and Reebok, to provide alternatives to the NCAA and universities' indentured servitude model, to put it kindly.

Fifth, so what legal duties do these defendants or enlightened cheaters have towards the cartel members named Kansas, Louisville, Miami, and North Carolina? None as discussed above.

It was perfectly legal for anyone to pay the players' families money.

It was perfectly legal for the players' families to influence them, rightly or wrongly, and the families had no legal duty to inform the players of these particulars. (Whether that might sour family relations if/when the players found out is another matter.)

No one had a duty to tell anyone else that they were making these payments, except for the coaches, who would have had a contractual obligation to inform their universities. But breaching one's employment contract is not a crime. This assumes that the players did not know what was going on.

It is also not a crime to keep these payments secret, and the fact that it seems everyone involved wanted to do so is typically how business is done, meaning, many if not most people do not publicize their private business transactions. Here, everyone knew they were cheating the cartel, and that for the cheating to work, keeping it a secret was pivotalbut it was not in the slightest bit illegal. No statute says to the contrary.

Sixth, the harm is also illusory. For instance, the NCAA determines initial eligibility, not the universities, yet the prosecutors seem not to know how the predicate for their entire liability theory actually works. As explained above, by the time would ever come for the players to sign the NCAA Student-Athlete Statement, they would already have their grants-in-aid, and they would already be freshman students on campus. It is logically impossible for an allegedly false certification after the fact to have induced the awarding of the grant-in-aid. And why are we buying into the NCAA's position that it can hold the innocent athlete liable for the actions of relatives without his knowledge or consent? The duty of good faith and fair dealing implied into every contract would seem to dictate the opposite result. Whether the prosecutors have confused the National Letter of Intent issued by yet another third-party is unknown, but if anything was signed the Fall before matriculation, that's what it would have been.

The universities conspire with the NCAA to limit their athletic grants-in-aid (not scholarships), paid from the universities' athletic revenue (not state or federal funds), to thirteen for men's basketball. Given the revenue per player, they could have well afforded to set this at any higher number that they wished. If the universities' number of grants-in-aid are finite, it is only because they have agreed to that number, not because it has been imposed by some external constraint. To go the next step and say that these universities have lost control of their assets, when the players are not 'assets,' and when they exploit these players unbelievably, is, well, to turn the law upside down.

The value of a grant-in-aid is zero, meaning the marginal cost to these large universities to add mostly fake students to their freshman class, when those players will bring in well over a million dollars each in revenue, is zero. This is especially true, when these players largely do not attend class or take part in what the grant-in-aid is supposed to pay for, which is an education. These players are not defrauding these universities of anything, instead, this is all pretext for getting the player on the court, nothing more, and nothing less. This is cartel business. (As discussed above, if the players really were bargaining for an education, and if they knew they were ineligible, then this entire transaction would be a multi-sided fraud.)

The potential penalties are also nothing as alleged, since only major infractions implicating the university, itself, result in any meaningful penalties. Such penalties, themselves, are speculative, in that the NCAA selectively enforces its bylaws against its members, and even then, the penalties are whatever the NCAA says they are subject to them being changed, like what happened to Penn State. So bringing out the boogeyman man that the NCAA's incorrect eligibility certification would be visited upon the university is just hogwash absent culpability on behalf of the university.

Following the prosecutors' theory here, this would be nothing more than a minor infraction, if any of these universities unknowingly and in good faith played a technically ineligible player. Also, these rules are all bargained for between the NCAA and its members, so they get what they bargained for. These aren't penalties imposed by some external constraint. If they are damaged, it is because they have contractually bargained to be damaged amongst themselves, which is no one else's fault.

E. Hypothetical & Conclusion

Since the founding of our country, all crimes have been defined by statute. Now, the Gatto case attempts to give private associations the right to pass their own 'statutes' that federal or state prosecutors may then weave into crimes, when those bylaws are disobeyed. Does anyone have any idea how many millions and millions of private association bylaws there are in this country? How would any of us know what might endanger our own liberty? The danger here is extraordinary, like the sky is falling, and it really is.

Imagine in a homeowners' association that there is a bylaw that every home shall be painted with only a set number of shades of brown Sherwin-Williams house paint, imagine that Glidden wants to market that the new 'in' house color should be a hot pink shade that only it can make, imagine that a homeowner is picked out of a contest to be paid $100,000 to paint his home Glidden's hot pink, imagine that Glidden wires him the money and overnight has his house painted hot pink, imagine Glidden has him on the Today Show the next day with live coverage of his new hot pink house along with his neighbors' hostile reactions, and now imagine that the HOA gets the U.S. Attorney to indict the Glidden folks and the homeowner for conspiracy to commit wire fraud and wire fraud, just like Judge Easterbrook's practical joke example a quarter-century ago: Are we really to believe that the Glidden folks and the homeowner should be convicted, fined, and imprisoned, merely for painting his home hot pink?

This is the danger that the Gatto case invites with as many permutations that the mind can imagine. By itself, none of us will likely shed tears for these defendants (but we may for the innocent players). But whether we like or dislike the defendants or their conduct, in this country, we have a rule of law, and that criminal law is decided by legislaturesnot by the NCAA or any other private association.

There must be an absolute principle that comes from the Second Circuit in reversing these convictions that a wire fraud charge may never, ever be based upon the violation of the bylaws of a private association. Especially those of a cartel that is currently on trial yet again in Alston v. NCAA for antitrust violations, where it has already been found to have violated the antitrust laws, and the only question is whether its conduct will meet the rule of reason test or not.

Even more troubling, if Alston throws out the NCAA's amateurism bylaws, which it most likely will to some extent, will the Gatto Judge then reconsider and grant the defendants' motion for acquittal? Should an antitrust lawsuit in California have any impact upon a wire fraud case in New York? Logically, no, but it will nonetheless. Stay tuned, as there is much more to come.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Update on a Very Jewish World Series

Message posted on : 2018-10-27 - 10:37:00

We are three games into the 2018 World Series, which features one Jewish player on each team for the second year in a row. The first two games, both Red Sox wins, were quiet on this front. Ian Kinsler started both games at second for the Red Sox and was a combined 1-for-7 with an RBI. Dodgers outfielder Joc Pederson did not start either game; he was one of the Dodgers' four top hitters, all left-handers, who did not start against lefty starters, although he entered both games late, going 0-for-3 combined.

Game Three, an 18-inning Dodger win and the longest game in World Series history, had the Great, the Good, and the Ugly for the Chosen People.

The great:

Sandy Koufax gave Dodger starter Walker Buehler a standing ovation as Buehler left the mound after pitching seven innings of two-hit shutout ball with nine strikeouts. Koufax is two months shy of 83 and looks as if he still could pitch.

The good:
Pederson gave the Dodgers a 1-0 lead with a home run in the third. But for a blown save, that would have been the game-winning hit.

The ugly:
Kinsler. Inserted as a pinch-runner in the 10th, Kinsler was almost picked-off first. He was called safe and the call upheld on replay review, although it was close. Kinsler then advanced to third on a single, but overslid third base and barely scrambled to get his foot back on the base before being tagged. He then was thrown out trying to score on a fly ball to center. The throw was off-line, up the third-base line. But Kinsler got such a slow break off third that he basically ran into the tag about fifteen feet before the plate.
Then, with the Sox up 2-1 with two out in the bottom of the 13th, Kinsler's wild throw on a grounder up the middle allowed the tying run to score and the game to continue for five more innings and a 14th-inning stretch. Game Four in about nine hours.

Posted By : Howard Wasserman

Why Are We Tip-Toeing Around Racism in Alston v. NCAA?

Message posted on : 2018-09-22 - 16:38:00

Why Are We Tip-Toeing Around Racism in Alston v. NCAA?

Richard G. Johnson*

The Alston v. NCAA trial resumes on Monday for its final two days, yet nobody so far has spoken about the elephant in the room, namely racism.

I have previously written about this case in the following order: Lying About Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five; Alston v. NCAA and the Emancipation of Black College Athletes; Is America East Conference Commissioner Amy Huchthausen the Key to Unlocking Amateurism in the Upcoming Alston v. NCAA Trial?; Opening Arguments in Alston v. NCAA: Are the Plaintiffs Telling the Right Story?; and Alston v. NCAA: What is this So-Called Product of College Football and Men's Basketball? I have also published a chart, Who's Getting Screwed in College Sports?!?, which sets out the financial and graduation parameters for this so-called product of college football and men's basketball.

The 'product' that makes real money is Power Five conference football and men's basketball, which is largely staffed by black players, who oftentimes do not graduate, and who do not get paid. That is not a theme at this trial.

In 2017, looking at the chart, Power Five football is $3.6BB or 75.9% of all D-I football revenue, and P5 men's basketball is $864MM or 64.8% all D-I men's basketball revenue. That is not a theme at this trial.

Placing this revenue into context, there are 5,525 grant-in-aid (GiA) Power Five football players (85 per team), with adjusted revenue per player of $880,734.47. And there are 845 GiA P5 men's basketball players (13 per team), with adjusted revenue per player of $1,382,744.90. That is not a theme at this trial.

In the Power Five conferences, black men are only 2.4% of the undergraduate male student body, yet they're 55% of the football and 56% of the men's basketball teams. That is not a theme at this trial.

These percentages understate the black players' contributions, for instance, in Big Ten conference men's basketball last year, blacks played over 80% of the total minutes of playing time, according to sports analyst Anthony Crudup. That is not a theme in this trial.

In 2017, according to the College Sports Research Institute, the graduation rate for Power Five football players was 61.1% (74.2% for white players, 54.4% for black players) versus 79.3% for the full-time male student body. For P5 men's basketball players, the graduation rate was 45.0% (58.3% for white players, 41.0% for black players) versus 79.5% for the full-time male student body. The adjusted graduation gaps between white and black players is more than six times in P5 football (-3.5% white, -23.0% black) and almost twice in P5 men's basketball (-21.6% white, -38.5% black), so the racial impact here is palpable. That is not a theme in this trial.

With a less than two percent draft rate to the NFL and NBA, most of these non-graduating players are simply used and thrown away, although an additional few go on to Canadian football or European basketball. That is not a theme in this trial.

The power structure has a quite different picture according to the University of Southern California's Race & Equity Center:

On average, Power 5 football coaches earn $3.7 million annual salaries. Head coaches of men's basketball teams at the 65 universities earn an average of $2.7 Million. Black men are 11.9% of these head coaches. Power 5 athletics directors earn, on average, $707,418 annually. Black men are 15.2% of these athletics directors. The five conference commissioners earn, on average, salaries that exceed $2.5 Million. None are Black.

That is not a theme in this trial.

The fan base and spectators are largely white, as well. That is not a theme in this trial.

And guess what, white fans are okay with white players getting paid, but hell no for black players. It's called racial resentment. That is not a theme in this trial.

So here we are in a trial supposedly about antitrust law, where the white judge and white lawyers and mostly white witnesses refuse to talk about the racial reality of college sports at its highest level, where those not getting educated are also not getting paid. There's nothing pro-competitive about this under the antitrust rule of reason doctrine, because racism cannot be pro-competitive as a matter of law. Judge Wilken has already found that the NCAA and the Power Five conferences conspire to fix these players' value at zero. Nothing in this trial, nothing at all, has demonstrated any reason to not pay the black labor that is the backbone of mega college sports. That is not a theme in this trial.

I call BS on this trial that has nothing to do with reality. And when little to nothing happens yet again to emancipate these players, my prediction is that the NBPA will come in and organize college basketball, which would be far more efficient than a bunch of antitrust lawyers pounding the square peg into the round hole, while arguing about the size of the hole. All the while, generations of black labor have been disenfranchised on reasoning as simple as, 'it's good for them not to be paid, it builds character,' and so onlet's call it 'amateurism.' What is and has been going on is shameful, yet those taking home the players' money aren't ashamed one bit.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Representing the Professional Athlete

Message posted on : 2018-09-18 - 11:55:00

Longtime friend of The Sports Law Blog, Professor Peter Carfagna of Harvard Law School, just released the THIRD EDITION of his fantastic book "Representing the Professional Athlete." The book begins with a comprehensive overview of the complex regulatory framework pertaining to the legal representation of pre-professional NCAA student-athletes. It then continues to provide the reader with an interactive, hands-on guide to negotiating, drafting, and litigating agreements in the context of representing a professional athlete through all stages of their career, including retirement.

This book is something that many of us use when we teach Sports Law and receives the Sports Law Blog's official "stamp of approval!" You can purchase the book here, and we encourage you to do so.

Posted By : Warren K. Zola

Alston v. NCAA: What Is this So-Called Product of College Football and Men's Basketball?

Message posted on : 2018-09-16 - 17:10:00

Alston v. NCAA: What Is this So-Called Product
of College Football and Men's Basketball?

Richard G. Johnson*

After a week's rest, the consolidated Alston v. NCAA trial resumes on Monday, so are we all ready, which means, do we actually know what this fight is really about?

For some perspective, this case is part of a trilogy of antitrust cases, which began in 1984 with NCAA v. Board of Regents of the University of Oklahoma, where the football powerhouse schools at the time wrested control over their broadcast rights from the NCAA. Second, in 1998 in Law v. NCAA, college coaches at the powerhouse schools wrested control over their salaries from the NCAA. Read these two cases and see how little definition of college sports is given, as if all college football or men's basketball is the same.

Third, in 2008 in White v. NCAA, college athletes attempted to wrest control over their grants-in-aid from the NCAA, but the settlement in that case, which was supposed to address the problem of grants-in-aid not covering the full cost of attendance, did not, so here we are again, a decade later, trying to fix in part what was supposed to have been already fixed. Thus the O'Bannon v. NCAA case and its progeny, Alston v. NCAA and Jenkins v. NCAA, where college athletes are back still trying to obtain an equal playing field with their universities and coaches.

As I have said before, the biggest hurdle for the Alston plaintiffs is the O'Bannon appellate ruling, which gutted the O'Bannon trial court findings. Needless to say, the NCAA says it's controlling, and the plaintiffs say it's not. Judge Wilken has essentially said that she'll hear a 'do-over,' but what happens after that, who knows? The NCAA is clearly betting on the Ninth Circuit doing a 'repeat,' as well. Jenkins is stayed pending the Alston trial.

These antitrust cases have all involved horizontal price-fixing, which used to be per se illegal, but which is now governed by the rule of reason, so the Alston trial is ostensibly about whether the NCAA and its members can prove pro-competitive justifications for their price-fixing, namely 'integrating academics with athletics and preserving the popularity of the NCAA's product by promoting its current understanding of amateurism,' and if they can, whether the plaintiffs can show that there are less restrictive means to achieve these? The trial so far has been a battle between the economists.

To over-simplify, however, the trial has now boiled down to whether the NCAA and its members not paying the players equals amateurism, which itself equals the product they are selling that still remains undefined as college football and men's (and women's) basketball. Yet defining what this means is important, because D-III is different from D-II, which is different from lower D-I, which is different from the Group of Five conferences, which is different from the Power Five conferences. College football and basketball have at least five different levels or 'products,' but this has yet to be mentioned in the trial as far as I understand.

So if not paying the players is the product instead of the level of competition, then we would expect that everyone would want to watch D-III football and basketball, yet those are not nationally televised. If the purity of amateurism is the product, and if that is what consumers want, well, we know empirically that is not true, because the market doesn't provide us with national D-III programing on Saturday afternoons. This obvious fact has yet to be mentioned at trial as far as I understand.

If you click on the chart referenced above, you will see that as you go from D-III to D-II to D-I, and within D-I from the bottom up to the G5 and then up to the P5 conferences, you will see that the most commercialized programs are what is broadcast, not the least. That cannot be explained, if the product is not paying the players. This obvious fact has yet to be mentioned at trial as far as I understand.

The product at the P5 level is essentially semi-professional football and men's basketball, with coaches earning more than their 'professional' counter-parts, since universities have no player labor costs, which produces a distorted labor market for coaches. Guess who's most vocal about not paying the players, since the majority of the money to pay the players would come out of the now-inflated coaches' salaries?

If amateurism also means that these football and men's basketball players are also full-time students, well, all you have to do is look at the graduation rates and racial gaps between black and white players, where black players constitute the majority of starting positions in the P5. As you go to the G5 and then to the remainder of D-I and below, graduation rates increase, and the racial gap narrows, which makes sense, as these players have only lottery-ticket hopes of being drafted. This data is online in more detail at the College Sports Research Institute. As I have explained in my first piece above, neither the P5 football nor men's basketball teams are legitimate college teams, due to the number of ringers who play on each team. Thus my view that they are semi-professional teams, not real college teams, which goes to the heart of the debate before Judge Wilken, yet the plaintiffs aren't making this argument as far as I understand.

In class action litigation, the class definitions state who the plaintiffs are, but they are overbroad in Alston, which occludes much of what I have just explained above. Looking at the chart again, for the football class, ask yourself why the P5 is combined with the G5, and whether that makes for a stronger argument, and if you think it does, then why leave out all of FCS? Same question for the men's basketball class, which is defined as all of D-I, when it should also just be the P5? And women's basketball is not relevant to begin with economically, but if you believe that it is, why include any conference beyond the P5 + G5 ones in that class (in other words, treat it like FBS)?

The glass is crystal clear, when you look at the economics and graduation rates for the P5, but once you dilute that glass with the G5, it becomes murkier, and then add in the rest of D-I, and it becomes murkier still. (No one is trying to add in either D-II or D-III.)

By presenting a giant problem to the court, 10,965 football players (129 schools) versus only 5,525 (65 schools) annually, 4,562 men's basketball players (351 schools) versus only 845 (65 schools) annually, and 5,235 women's basketball players (349 schools) versus only 1,935 (129 schools) annually (if you believe WBB is relevant), you can immediately see the problem that the plaintiffs are putting on the desk of Judge Wilken, who is being asked to legislate essentially all of D-I revenue sports, instead of just asking her to stop the clear theft of broadcast revenue by the P5 that she has already recognized in O'Bannon, and which I first pointed out in my amicus brief in that appeal. She can do this by simply removing the horizontal price-fixing of the players' labor by the NCAA/P5 cartel, and the free market will solve the rest.

Plaintiffs who want to win never take their eyes off of the ball, yet here, there is almost a complete unwillingness to even define what the ball is: What is college football and basketball? Implicitly, we all know we are talking about commercialized college football and basketball, but by failing to isolate where the majority of the money is located, the plaintiffs have left Judge Wilken to figure this out on her own, which is not effective advocacy. The plaintiffs' counsel have one week left to get this straight. E-mail lead plaintiffs' class counsel Steve W. Berman, Esq. ( and Jeffrey L. Kessler, Esq. ( and tell them to do just that. This is pretty much the players last chance to change their world.

What is it then that even the plaintiffs are trying so hard not to talk about? It is this charade of pretending that we don't know what the real product is, P5 FB and MBB, or that we don't know that black players earn the majority of that revenue, when in the P5, black men are only 2.4% of the undergraduate student body, yet they're 55% of the football and 56% of the basketball teams. And if you don't understand that this is just one of many examples that explain both the income and wealth inequality between blacks and whites in this country, then my guess is that you just don't want to know. But what is it that Judge Wilken wants to know? Does she want to become woke? It's not hard, if we are intellectually honest. But the plaintiffs' counsel has to put this in front of her to understand.

If Judge Wilken can't recognize and fix this injustice, then at least she could go the other way and order that no college player may be shown on a broadcast outside of PBS unless the players are paid: Then we'd see the mad rush to pay the players by the universities, because they want the money. That is what this is all about, as it almost always is, the money. It is also about racism justifying keeping the money from those who earn it.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Serena and the umpire

Message posted on : 2018-09-14 - 10:53:00

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

• The first called violation and warning for coaching was correct, as even her coach, Patrick Mouratoglou, admitted he was coaching. And however common coaching is,* it does get called, against men and women, black and white. And this chair umpire is known to call it more than others. This perhaps could have been an instance in which Mitch Berman's temporal variance was appropriate and it should not have been called midway through the second set of a Grand Slam final. And race and sex might have had something (nxxot everything, but something) to do with the umpire's willingness to call a ticky-tack violation at that key time.** On the other hand, Drum points out that the coaching was not subtle, so an easy target for this call.
[*] Or should be. I recognize the argument, that Mouratoglou made when interviewed after the match, that the rule should be eliminated. That has no role to play here. Civil disobedience is still a crime and still punishable until the unjust law is repealed.
[**] Berman's temporal variance argument begins with one of Williams' previous officiating meltdowns in the 2009 Open semi-finals.Williams was called for a foot fault on a second serve when she was down 15-30 and serving to stay in the match. The call pushed her to 15-40 and match point. That prompted Williams to threaten the line judge, resulting in a code violation. And because Williams had received a violation for--wait for it--smashing her racket, the violation resulted in a point penalty and the end of the match. Pattern of behavior? Pattern of targeting the African-American woman with ticky-tack calls at key moments? Bit of both?
• The interesting thing about this call--and the thing that caused many of the subsequent problems--was that Williams took it as a personal affront to her, an accusation that she was cheating. She protested the call by talking about her daughter and how she would rather lose than cheat; she later demand for an apology was premised on this understanding that the ump had accused her of cheating. But any "cheating" was by the coach, not Williams. Coaching is "communication, advice or instruction of any kind and by any means to a player," which Mouratoglou was blatantly and not subtly doing via hand signals. The rule does not require that the player see, hear, or respond to the coaching, only that the coach engage in communication. So her taking this as an affront to her honesty or sportsmanship misunderstands the nature of the rule. The player is punished for the coach's misconduct (presumably so the player will tell the coach to knock it off). But the player need not do anything wrong for the infraction to be called.

• Williams somewhat undermined her own cause here. She insisted that she had not seen any coaching, but that is beside the point. But Williams also said she had looked up and seen Mouratoglou, but he only was giving her the thumb's-up. This suggests that she saw something and there was some communucation. And the cameras were following Mouratoglou and he was doing much more than giving the thumb's-up.

• The second violation, for breaking the racket, which resulted in a point penalty as a second infraction, is a no-brainer--she did, in fact, destroy her equiment. And, again, the argument that the rule is stupid and made for a game that was played by delicate white men and not strong, athletic, competitive African-American women is beside the point. Again, if the rule is bad, change the rule; otherwise, follow it. A game before Osaka had slammed her racket after a mistake, but the racket did not break, so there was no violation.

• My point of departure from Drum is whether sex (and race) had anything to do with the third violation, for umpire abuse (which resulted in the game penalty). This was a judgment call and Williams was ranting. But we see men's players, especially the top men's players, given a lot more leeway in arguing with officials; it is difficult to imagine any of the top-three men's players getting called for saying the same things Williams did, especially at that point in a championship match. This infraction was not called solely because Williams is an African-American woman. But it is not an unreasonable inference that the umpire's fuse was shorter with her than it would have been with a white man, especially accounting for her position as the GOAT and the idea that the GOAT gets away with more.

• The one reason the call makes sense, apart from race and sex, is that Williams personalized it--she said, "You're a thief." Baseball umpires, asked about the magic word that will prompt them to eject a player, say "You"--in other words, players can say a lot of words, as long as they do not personalize those words to the umpire. (To use the famous example in the movie Bull Durham, Crash does not get ejected when he screams cocksucker at the umpire, only when he says to the umpire "you're a cocksucker."). I am not sure if it is the same in tennis, but that could set her comments apart.

Posted By : Howard Wasserman

New Article On NFL Player Mental Health

Message posted on : 2018-09-13 - 12:04:00

From May 2014 until May 2017, I was part of the Football Players Health Study at Harvard University. Created in 2014 pursuant to an agreement between Harvard Medical School and the NFLPA,* the Football Players Health Study is a long-term, multi-faceted research project dedicated to understanding the causes of conditions that NFL players face, with the goal of improving their health and wellbeing. More specifically, I was part of the Law & Ethics Initiative of the Football Players Health Study, which studied legal and ethical issues affecting NFL player health. We released several publications on these issues, and I am happy to announce a new one. This week, the Journal of Clinical Sport Psychology released our article, entitled 'Life on an Emotional Roller Coaster: NFL Players and Their Family Members' Perspectives on Player Mental Health.' Although it is not a legal paper, I think it has valuable insight for anyone interested in the law and business of sports. The abstract is below and I welcome any comments.

This qualitative study examined how NFL players and their family members characterized the impact of an NFL career on the mental and emotional health of NFL players. We interviewed 25 NFL players (23 former and 2 current) and 27 family members (24 wives and 3 others) to elicit players' experiences during and following their time in the NFL. While players experienced positive outcomes from their careers, they also described important mental health challenges including feelings of depression, loneliness, and stress. Many of their concerns during their careers were linked to anxiety about job performance and job security. Post-career concerns were linked to loss of social identity and connections. Players had difficulty finding help for their concerns. We conclude with eight recommendations, including improved resources, confidentiality, and support.

* The Football Players Health Study is supported by funds set aside for research by the NFL—NFLPA collective bargaining agreement. The NFLPA does not control or direct the scope or content of any of the work from the Football Players Health Study.

Posted By : Christopher R. Deubert

Opening Arguments in Alston v. NCAA: Are the Plaintiffs Telling the Right Story?

Message posted on : 2018-09-02 - 17:58:00

Opening Arguments in Alston v. NCAA:
Are the Plaintiffs Telling the Right Story?

Richard G. Johnson*

In the consolidated Alston v. NCAA trial that starts on Tuesday, Federal District Court Judge Claudia Wilken, who heard the O'Bannon case, has set out a quick bench trial schedule, where much of the trial argument and testimony must be submitted to her in writing, but where she will hear limited live testimony, mostly upon cross-examination.

The parties submitted their opening arguments some time ago under seal, and the mostly-unsealed versions were filed on August 27th, so now we know how both the plaintiffs and the NCAA intend to try this case, for better or worse.

The biggest hurdle for the plaintiffs is the O'Bannon appellate ruling, which gutted the O'Bannon trial court findings. Needless to say, the NCAA says it's controlling, and the plaintiffs say it's not. Judge Wilken has essentially said that she'll hear a 'do-over,' but what happens after that, who knows? The NCAA is clearly betting on the Ninth Circuit doing a 'repeat,' as well.

Here's what the plaintiffs should be concerned about from the NCAA, which is its central theme:

In preserving this defining feature of amateur student athleticswhich is simultaneously so popular with fans and advances member schools' educational missionsNCAA rules provide a reasoned basis for distinguishing amateurs and professionals. By permitting grants up to the cost of attending school, they seek to allow schools to support students-athletes as students, while preventing disguised forms of pay for play. And recognizing the burdens and expenses associated with sports practice and competition, the rules also allow schools to support and commemorate student-athletes' dedication, while drawing lines so these benefits do not become a form of professional compensation. Everyone may not agree on how to strike the balance these considerations require. But the balance struck by NCAA schools in the rules they have agreed on is not simply arbitrary. It is informed by decades of experience in 'superintend[ing] college athletics.'

In this lawsuit, Plaintiffs attack these rules broad-side, seeking to destroy what makes college sports unique. Their proposed injunction is unequivocal: Plaintiffs ask this Court to enjoin any NCAA rule that 'fixes or limits compensation or benefits' that schools may offer athletes. They would replace a successful, established product with a fundamentally different one, with staggering and destructive implications. Some schools could compete for highly-prized athletes by offering millions of dollars in compensation. Others with fewer financial resources would struggle to offer Division I college sports at the same level, offering a diminished product that would interest consumers less. And others could withdraw from Division I sports altogether to preserve their conception of the role amateur athletics should play. Meanwhile, athletes with big money riding on athletic performance would face lower incentives to devote meaningful time to academics.

The Ninth Circuit previously bought that baloney hook, line, and sinker. In doing so in O'Bannon, the court of appeals didn't ask how or why the NCAA claims to 'superintend' college sports, when neither the federal nor state governments have appointed it to do so? The O'Bannon appellees didn't bother to explain that the NCAA does this by fiat and through extortion, since the NCAA has no contractual or fiduciary relationship with the players. Neither the trial court nor the court of appeals seems to actually understand how big money college sports actually work.

While the Alston plaintiffs seem to have done a pretty good job putting together a case that should survive a neutral court's review, this is not a neutral occasion: Like it or not, the NCAA is the dragon that must be slayed outright, or it wins. And slay they have not for a simple reason: They have defined their classes of plaintiffs to be all of FBS football as well as all of men's and women's Division-I basketball. If you're a plaintiff in an antitrust case, you actually sometimes want the smallest class possible, not the largest possible. The NCAA is now implicitly arguing competitive balance or equity, which it has long since abandoned, yet the plaintiffs have set up such large class compositions, that they've allowed the NCAA to conflate the huge differences within D-I, so as to confuse the court and the public, when regulating the Power Five conferences would not affect the remainder of D-I one bit, plus, that's what can be held onto on appeal.

So let's do what the plaintiffs should have done right up front, which is telling Judge Wilken exactly in terms of money what we are talking about, when we talk about D-I football and basketball:

According to data from the Department of Education, in 2016—17, all NCAA college sports accounted for about $16BB in annual revenue, about $11.6BB of which comes from Division I, about $7.1BB or 61% of that money is generated by the Power Five conferences and their 65 members, about $2.2BB or 18.7% is generated by the Group of Five conferences and their 64 members, and about $2.4BB or 20.3% is generated by the remainder of D-1/FCS and their members (125 FB, 222 MBB, 220 WBB).

Power Five football is $3.6BB or 75.9% of all D-I football revenue, P5 men's basketball is $864MM or 64.8% all D-I men's basketball revenue, and P5 women's basketball is $135MM or 33.2% of all D-I women's basketball revenue. It is this concentration of wealth that explains why the P5 conferences now have autonomy from the NCAA. Placing this revenue into context, there are 5,525 grant-in-aid (GiA) P5 football players (85 per team), with adjusted revenue per player of $880,734.47. There are 845 GiA P5 men's basketball players (13 per team), with adjusted revenue per player of $1,382,744.90. And there are 975 GiA P5 women's basketball players (15 per team), with revenue per player of $138,383.46.

If we look at the Group of Five conferences in the three market segments, the numbers look like this: An additional $664MM or 14%, $220MM or 16.5%, and $118MM or 29.2%, respectively, is added to the percentage of the markets in football as well as men's and women's basketball. Placing this revenue into context, there are 5,440 GiA G5 football players, with adjusted revenue per player of $174,558.53. There are 832 GiA G5 men's basketball players, with adjusted revenue per player of $373,973.94. And there are 960 GiA G5 women's basketball players, with revenue per player of $123,319.89. All numbers of GiAs per team are the same for both P5 and G5. In football, this combination equals FBS, whereas in basketball, there are no official demarcations.

If we look at the remainder of D-I (non-FBS), which is called FCS for football, in the three market segments, the numbers look like this: An additional $480MM or 10.1%, $248MM or 18.6%, and $153MM or 37.6%, respectively, is added to the percentage of the markets in football as well as men's and women's basketball. Placing this revenue into context, there are 7,875 GiA FCS football players (63 per team), with adjusted revenue per player of $84,598.40. There are 2,886 GiA non-FBS men's basketball players (13 per team), with adjusted revenue per player of $119,285.83. And there are 3,300 GiA non-FBS women's basketball players (15 per team), with revenue per player of $46,221.33.

So when we're looking at the numbers, we can clearly see that the real money is in the P5 conferences for football and men's basketball. That is why the stayed Jenkins case does not include a proposed class for women's basketball. But even so, it is questionable why both Alston and Jenkins include conferences outside the Power Five. In doing so, the plaintiffs have invited the 'sky is falling' defense from the NCAA, and the Ninth Circuit seems to like that defense, because it bootstraps back to what we grew up with, which is competitive balance or equity, when those factors have not been considered by the NCAA at the elite level for some time now. This is for the plaintiffs to point out, yet they haven't, even though it's critical misinformation on the part of the NCAA.

In trying to change the world, a good trial lawyer wants to articulate why that is necessary, and often times, many things matter besides just the facts. Here, if we wish to change the world, one has to articulate what one wants to change and why? Just saying there's a conspiracy that constitutes an antitrust violation (even if true) is not going to carry the day, just as it didn't in O'Bannon on appeal. But what does?

Well, if you want to change the world, you have to have a storyline and theme to convince Judge Wilken why she should change the world, and why the status quo is a lie.

Nowhere have the Alston plaintiffs attacked the NCAA's false education argument. Nowhere have they differentiated and focused on the money pot that is really just P5 football and men's basketball. Nowhere have they discussed the conversion and theft of the players' NILs. Nowhere have they pointed out that these so-called amateur teams play with significant numbers of ringers. Nowhere have they pointed out the racist impact of 'amateurism.' And nowhere do they mention that the NLRB now views the players as employees.

The most that the Alston plaintiffs have done is (1) point out the farce of the supposed integration of athletics and education, and (2) say the NCAA is wrong that fans won't be interested, if players are compensated. That's it. If you're Judge Wilken, are you going to change the landscape of D-I based on that? Maybe a little, but certainly not a lot.

If I'm the Ninth Circuit, and if I'm asked to essentially legislate a wholesale change to about 130 football and about 351 basketball D-I programs, I'm not going to be so excited to do so, either. Because, quite frankly, the plaintiffs haven't given me a compelling reason to do so. While the plaintiffs are long on legalese, they are incredibly weak in explaining the public policy issues at stake here. The NCAA's 'mom, apple pie, and Chevrolet' theme is a well-worn and comfortable one that the court of appeals will adopt again, unless it has a strong reason not to.

But if someone, anyone, bothered to actually paint an accurate picture of what commercialized college football and men's basketball looks like, which is a heap of money earned on the backs of mostly poor black labor, who graduate far less than their white teammates, well, that's a very different story, yet that story isn't being told. And that story involves only 65 universities.

You would think that there'd be some mention by the plaintiffs that FCS football and all other D-I sports are left alone besides FBS football and all basketball, and that all D-II and D-III sports are left alone, too. Wouldn't you expect that somewhere, the plaintiffs might mention that the majority of the sky isn't falling, even with their over-inflated class definitions?

Putting aside the disproportionate impact on blacks, big-time college sports, meaning the P5, is the only commercial industry in the entire United States in which competing firms can collectively establish an artificial cap on the value of human capital. That is an astounding fact.

Black or white, what is the ethical justification for coaches and administrators to be unjustly enriched through a conspiracy to suppress the value of people who have unique and immensely valuable skills and talents? The answer just can't be simply: 'Because our customers don't want them to be compensated.' Most of their fans are also disgusted by how much coaches make yet so what? Most fans of professional sports think the players are over-compensated tooso what? And most customers think all CEOs make way too much moneyagain, so what? This would be silly, if Judge Wilken and the Ninth Circuit didn't think that not paying the labor could be twisted into a pro-competitive justification for continuing antitrust violations; ditto for converting and stealing the players' NILs.

Absent an epiphany being visited on the plaintiffs' counsel, my guess is that Judge Wilken will find in favor of the plaintiffs and craft a narrow remedy, the Ninth Circuit will cut that remedy back, and things will continue as they have been … Until the NBPA gets fed up and organizes P5 men's basketball.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Is America East Conference Commissioner Amy Huchthausen the Key to Unlocking Amateurism in the Upcoming Alston v. NCAA Trial?

Message posted on : 2018-08-26 - 16:09:00

Is America East Conference Commissioner Amy Huchthausen the
Key to Unlocking Amateurism in the Upcoming Alston v. NCAA Trial?

Richard G. Johnson*

Right after Labor Day, the consolidated Alston v. NCAA trial begins before Federal District Court Judge Claudia Wilken, who was the trial judge in O'Bannon v. NCAA, where the NCAA must prove that its bylaws serve its 'asserted pro-competitive purposes of integrating academics with athletics and preserving the popularity of the NCAA's product by promoting its current understanding of amateurism.'

Last month, in Lying about Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five, I suggested that since the 1970s, the NCAA has been perpetrating a fraud by advancing a so-called educational model publicly, while privately pushing a business model, all of which came to a grinding halt in North Carolina, when the NCAA finally admitted that it had no responsibility for education. I further suggested that without the educational argument, there is no justification whatsoever for not paying the labor.

I concluded that piece wondering out loud whether Judge Wilken will reexamine the baloney in the NCAA sandwich and spit it out? Will she say it's okay to be about business and not education? Will she recognize that the economics of the sixty-five Power Five universities are far different than the remaining 1,200 members of the NCAA? Will she perpetuate the theft of these players' NILs that she condoned in O'Bannon? Will she recognize that the P5 football and basketball teams play with a significant number of ringers, and will she recognize the racist impact of their low graduation rates? Will she admit that this hoax of integrating athletics into the student body does not include P5 football and basketball players? Will she admit that a product is not defined by stiffing the labor, who the NLRB now views as employees? Will Judge Wilken become woke?

Last week, in Alston v. NCAA and the Emancipation of Black College Athletes, I argued that the smart play was to dismiss all of the defendants other than the Power Five conferences, including dismissing the NCAA, and to try the Alston case only against the P5, none of which have any pro-competitive justification for not sharing the broadcast revenue that Judge Wilken has already determined in O'Bannon that they convert or steal from the players.

I also suggested in that piece that the mistake in all of these class-action cases against the NCAA over the years has been over-inclusive plaintiff classes, and that if the argument is about money, which it is, well it's almost all in the Power Five conferences.

Well, nobody is listening, as the Alston plaintiffs have earlier this week moved to compel the trial testimony of former NCAA administrator and current America East Commissioner Amy Huchthausen for the following reasons:

Ms. Huchthausen has made recent public statements that will directly contradict at least one of defendants' core claims at trial. Ms. Huchthausen appeared on a panel during the 12thannual MIT Sloan Sports Analytics Conference on February 23—24, 201[7]. The panel topic was 'Life of the College Student Athlete' and is described as 'explor[ing] the current state of amateurism in the United States as well as the intersection of interest between schools and their athletes from the perspective of both former players and administrators.' As the Commissioner of the America East Conference, Ms. Huchthausen represents the conference's member institutions concerning collegiate athletics. The member institutions in this 'mid-major' conference include: Albany, Binghamton, Hartford, New Hampshire, UMass Lowell, Maine, Stony Brook, UMBC, and Vermont.

During the panel discussion, the moderator asked Ms. Huchthausen a direct question, targeting one of the fundamental issues in this casewhat would be the impact of allowing revenue generating athletes at [P]ower [F]ive schools to get paid? Ms. Huchthausen gave an extended, thoughtful answer. Plaintiffs submit the video of Ms. Huchthausen's full answer for the Court. As the Court will see, Ms. Huchthausen never intimated that consumer demand would be adversely impacted whatsoever (for any school) or that 'academic integration' would suffer in any way. In fact, Ms. Huchthausen said that for mid-major conferences like hers, things would not actually look much different.

Also, critically, Ms. Huchthausen expressly contradicts defense witnesses' claims that if some schools elect to pay players, it would cause an adverse impact on other conferences whose schools chose not to pay student athletes. Rejecting one of defendants' key claims, Ms. Huchthausen explained that it could actually benefit schools with fewer resources if other schools with greater resources paid players. She explained that if [P]ower [F]ive autonomy level schools paid players, for example, it might 'equalize some things from a competitive standpoint because they [the Power Five conference schools] won't be able to spend money on ten nutritionists because they're going to have to put some money, give some of that money to student athletes in this model.' In other words, this potential change in compensation model, according to Ms. Huchthausen, at worst would have little or no impact on conferences such as hers.

First, adverse impact on others is not a consideration in this lawsuit, and the fact is that with autonomy, the Power Five conferences can already choose to pay their players, if they wish, whether it affects other conferences or not.

Second, this concept of competitive balance or equity is not a consideration, either, in this lawsuit or in the larger NCAA discussion, having been abandoned a long time ago. For instance, in football, there is a huge difference just within FBS between the Power Five conferences and the Group of Five conferences, then there's a huge step-down to FCS, and then there are further step-downs to D-II and D-III.

Third, right now, all of college sports operates in a distorted labor market, where there is no player labor costs, so universities compete via amenities, services, and over-paid coaches and staff. No one disputes that paying the players would be the number one recruitment tool, and if the Power Five conferences were to pay the labor and subtract that money out of the number of nutritionists or whatever, that would just further concentrate talent in the P5. Labor follows the money, just like everyone else. While Ms. Huchthausen has a B.S. in exercise and sport science from the University of Wisconsin at La Crosse as well as an executive M.B.A. from the Sloan School of Management at M.I.T., she is not an economist, she does not pretend to be, and her quoted comments hardly support such an inference. She is hardly a smoking gun.

Fourth, let's compare Ms. Huchthausen's world to the Power Five conferences in men's basketball, since the America East conference does not compete in football. According to data from the Department of Education, in 2016—17, all NCAA college sports accounted for about $16BB in annual revenue, about $11.6BB of which comes from Division I, and about $7.1BB or 61% of that money is generated by the Power Five conferences and their 65 members. Only about $2.4BB or 21% is generated by the twenty-one or so non-FBS conferences and their 221 members.

For this timeframe, Power Five basketball is 64.8% all D-I basketball revenue, whereas non-FBS basketball is only 19%. Placing this revenue into context, there are 845 grant-in-aid (GiA) P5 basketball players, with adjusted revenue per player of $1,382,744.90, whereas there are 2,873 GiA non-FBS players, with adjusted revenue per player of $119,825.59.

During this timeframe, according to the College Sports Research Institute, the graduation gap for Power Five basketball players was -34.52% (-21.56% for white players, and -38.48% for black players) when compared to a graduation rate of 79.5% for the full-time male student body. When looking at this gap for the America East conference, the picture for its basketball players looks far difference, with an overall graduation gap of only -4.8% (+4.8% for white players, and -11.9% for black players), yet the racial disparity is still palpable.

Needless to say, the America East conference simply does not live in the same solar system as the Power Five conferences, and it does not compete with them in any meaningful way.

About once a decade, the legal system has the patience to allow a direct challenge to NCAA-style Fascism, and this decade, the same judge who heard O'Bannon is allowing a do-over, from what I can discern. This is not an opportunity to be squandered. And what exactly is at stake? I will be exceptionally blunt: The Power Five conferences live off of unpaid black talent that comes primarily from disadvantaged backgrounds. If these athletes were paid for four years on the same percentage of gross revenue enjoyed by their professional peers, they would earn the approximate average lifetime earnings of whites.

We cannot address racism in college sports let alone in our society without allowing economic success and wealth accumulation by those who have not been so advantaged in the past. I have said multiple times, this is a civil rights issue, and it has the potential to change communities and lives by redistributing wealth to those who actually are earning it.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Alston v. NCAA and the Emancipation of Black College Athletes

Message posted on : 2018-08-20 - 17:52:00

Alston v. NCAA and the
Emancipation of Black College Athletes

Richard G. Johnson*
Two weeks from tomorrow, the consolidated Alston v. NCAA trial begins before Judge Claudia Wilken, who was the trial judge in O'Bannon v. NCAA. Alston was already settled in terms of back-pay so-to-speak, so what this case is about is enjoining the NCAA and its members from limiting whether and how much a college basketball or football player can be paid. The non-consolidated Jenkins v. NCAA case is stayed pending this trial.
Last month, in Lying about Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five, I explained what this case is really about, which is waking up Judge Wilken to the realities of big time college sports. (Maybe she might even stop using the derogatory term 'student-athlete' that the NCAA made up to help deny employee status to college athletes, which she used some 258 times in her O'Bannon opinion.)
So let's have a reality check with the plaintiffs' lawyers now?
In her ruling on summary judgment, Judge Wilken basically set-out her philosophy that she was free-and-clear to hold an O'Bannon do-over, and I for one firmly believe that is in order, as I stated in my amicus brief in that appeal.
However, the NCAA and its allies have correctly argued that absent rule changes since the O'Bannon trial, that decision controls the outcomes of these lawsuits, which is the law as I was taught. That is one reason why it is so fundamentally important for trial judges to take seriously their role to protect the plaintiff classes that are certified. Regardless, under the current rudder, whatever Judge Wilken decides in Alston is likely to be curtailed by the Ninth Circuit, just like it cut back on the little that O'Bannon had provided. I have always thought that O'Bannon was a loss, not a win.
Here, the plaintiffs' class counsel are savvy and smart, but they've been nose close to these cases for years, and their target is the evil NCAA, which is a feeling that I well understand.
So let's take a deep breath and think about this? The only significant change has been the autonomy won by the Power Five conferences from the NCAA the day before the O'Bannon opinion was issued, which means that the NCAA and its rules are only relevant to the P5 to the extent that they wish them to be. The P5 are the dream defendants, because of this change.
As I explained last month, the Power Five conferences are where the vast majority of the money is, and that is also where the racial impact is most stark, meaning that P5 college basketball and football are all about redistributing wealth earned primarily by young black men to the white power structure, which one would think is indefensible, yet defending they still are.
The smart play here it to dismiss all of the defendants other than the Power Five conferences, including dismissing the NCAA, and to try the case only against the P5, none of which have any pro-competitive justification for not sharing the broadcast revenue that Judge Wilken has already determined they convert or steal from the players. This is pure and simple.
Neither Judge Wilken nor the Ninth Circuit are going to reform the NCAA or its conference and university membership, but if they only have to reform five conferences comprising just sixty-five universities, which happen to account for the vast bulk of inequitable wealth transfer, well, that is a much more likely positive result, I think.
If the Power Five conferences are enjoined from conspiring to limit what they pay their college basketball and football players, they will pay them, and like gravity, talent will be pulled towards them. Any other university that wants to join the autonomy movement will, and those that don't will leave commercialized college sports. There will be a market for the talent that is, well, talented, and the world will turn again tomorrow without the sky falling.
The mistake in all of these cases over the years has been over-inclusive plaintiff classes, and if the argument is about money, which it is, well it's almost all in the Power Five conferences. Does that leave the NCAA to wilt away? Yes. Does that sit in my craw? Absolutely. But if we wish to emancipate college basketball and football players, which I mean quite literally, this is the way to do it, obviously, in my opinion.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O'Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch's seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson's Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

Now returning: NFL games, player protests, and presidential tweets

Message posted on : 2018-08-11 - 11:43:00

As if on cue, Thursday's NFL preseason games included several players kneeling, standing with a raised fist, or remaining in the locker room during the national anthem. The President responded on Friday with a tweet 1) criticizing the players for being unable to define what they are outraged about, 2) urging them"be happy, be cool" because they make millions doing what they love, 3) urging them to find another way to protest, and 4) commanding "stand proudly or be suspended without pay." (capitalization, etc., corrected).

The first point is untrue because the small handful of players who protest have been very clear and explicit that they are protesting police violence and the criminal-justice system. As this piece points out, the President recognized that in a June statement asking players to talk to him about people they believe were treated unfairly by the criminal justice system so he could pardon them. I derided that statement as incoherent; I should have added not serious.

The second point skates close to the line of saying that rich people should not be allowed to complain. This is ironic coming from a rich man who ascended to the presidency by complaining. So what is it about these wealthy people that should cause them to lose the right to complain? I cannot put my finger on it.

The fourth point brings us back to that state action argument: When a public official continually talks about a specific private dispute and urges a private actor to take some action, do we get to some point where that encouragement becomes overwhelming or coercive? Is it a question of quantity and specificity--how often and how specific? Does it change when it is the President doing the urging? (By the way, hat tip to Rishi Batra (Texas Tech) for suggesting that specificity might matter during our SEALS discussion).

The third point is interesting and touches on something we discussed in the Thursday panel. During pregame warm-ups on Thursday, several Eagles players wore t-shirts displaying various statistics about people of color and children in prison, one of the issues about which players have been protesting. Throughout this protest debacle, the NFL has been compared unfavorably with the NBA in terms of support for player protests, although the NBA has and enforces a rule requiring players to be on the court and standing at attention during the anthem. So why is the NBA not criticized, by the press or its players, for doing what the NFL is trying to do? Some of it is the perception of incompetence of NFL Commissioner Roger Goodell and the expressly plantation mentality of some owners.

But one possible reason (H/T to dre cummings of Arkansas-Little Rock for this point) is that NBA players have worn message t-shirts and otherwise expressed themselves during their highly visible pre-game warm-ups.* NBA players have an at-the-game, high-profile, many-people-watching forum to express their political messages, therefore less need to use the anthem as a protest vehicle. NFL warm-ups are not watched in the same way and not as intimate, and players have not tried to take extensive advantage of the alternative forum. Perhaps if they do and can, it will remove pressure on the anthem as a necessary expressive moment.**
[*] Prominent examples include LeBron James and others wearing t-shirts reading "I Can't Breathe." WNBA players have made extensive use of this forum.
[**] Or, the NFL being what it is, the league will shoot itself in the foot by issuing a diktat about players having to wear team gear during all on-field warm-ups.

Posted By : Howard Wasserman

Flag protests and public employees

Message posted on : 2018-08-11 - 11:43:00

The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:

The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?

There are several doctrinal paths competing for attention here.

1) Barnette says students cannot be made to participate in the flag salute. By extension, it should mean other people cannot be compelled to participate in other patriotic rituals. Certainly Jackson's rhetoric speaks of patriotic rituals, not only the Pledge in schools. There also is a nice question of how far the Barnette protection extends--to speaking the words of the Pledge or anthem or to all engagement in the ritual. In other words, does Barnette mean you can opt-out entirely by kneeling or sitting or leaving the room? Or does it only mean you cannot be compelled to utter the word, but can be made to stand there, even at attention?

2) Employee speech rights within the workplace are limited, under the Garcetti/Connick/Pickering line of cases. Workplace speech that is part of the job is per se unprotected, while Connick/Pickering ask whether speech (whether in or out of the workplace) is on a matter of public concern and whether the employer's interests outweigh the employee's expressive interests. But on-the-job core political speech, however offensive, that does not affect government operations is protected. Thus a deputy sheriff could not be fired for stating, in a conversation with co-workers, her hope that a second assassination attempt on President Reagan would succeed.

3) Janus can be read to accord public employees greater protection against compelled speech than they enjoy against restrictions on their own speech, a criticism Justice Kagan leveled in her dissent. Kagan also predicted that Janus was about limiting public unions, not compelled speech generally, so a rule compelling employees to speak in a way other than donating money to a union.

So what might be the answer to my hypo? There are a couple of threshold question. First is how we should understand what the protesting employee (or an NFL player) is doing. Is he seeking to opt out of having to utter the government's message? Or is he trying to make his own affirmative statement about something (e.g., police violence)? This makes a difference between whether we are in Barnette/Janus or Garcetti/Pickering. Second is how much deference the court owes the government in defining what speech is part of the job. So will the court buy the government argument that the pre-opening patriotic ritual is designed to remind employees of their public duties and obligations and thus part of their public jobs. And, if not and we are in Connick/Pickering, how disruptive of the workplace the court deems non-participation to be. Third, if this is compelled speech, can it really be that children in school enjoy greater protection against compelled speech than adults in the workplace?

Again, I do not know the answers, although I know I believe it should come out. Thoughts?

Posted By : Howard Wasserman

Radio discussion of NFL anthem policies

Message posted on : 2018-07-31 - 14:24:00

Last week, I appeared on Gurvey's Law at KABC to discuss the NFL's national anthem policies; that discussion is in the first half-hour (thanks to Mike for suggesting me as a guest). I got pretty strident at points, although I am not especially strident in my position on this issue--as a matter of law, I accept that the NFL can stop the players from kneeling (subject perhaps to CBA limitation). But one of the hosts insisted that anyone who refuses to stand for the anthem or God Bless America should leave the country, so I could not let that one go.
Posted By : Howard Wasserman

More on the "Elam Ending" in Basketball

Message posted on : 2018-07-26 - 23:41:00

I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.

1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.

2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how to play in this odd situation.

3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.

Posted By : Howard Wasserman

Pine Tar Game at 35

Message posted on : 2018-07-24 - 11:34:00

Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.

Posted By : Howard Wasserman

Infield shifts and limiting rules

Message posted on : 2018-07-24 - 11:32:00

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.
So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

Posted By : Howard Wasserman

NFL and NFLPA enter standstill agreement on anthem policy

Message posted on : 2018-07-20 - 08:47:00

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Posted By : Howard Wasserman

Lying About Amateurism: How the NCAA Justifies Racism, While Going to the Bank with the Power Five

Message posted on : 2018-07-17 - 17:48:00

Lying About Amateurism:
How the NCAA Justifies Racism,
While Going to the Bank with the Power Five

Richard G. Johnson*
As the FBI runs around investigating college basketball amateurism violations, and as the U.S. Attorney has decided to become the enforcement tool for the NCAA, all the while, the NCAA seeks cover via Condoleezza Rice and it's fake 'independent' basketball commission, the last major NCAA class-action antitrust case will go to trial in September, where the NCAA will have its amateurism bylaws enjoined, unless it can prove that those rules serve its 'asserted pro-competitive purposes of integrating academics with athletics and preserving the popularity of the NCAA's product by promoting its current understanding of amateurism.' So can the NCAA prove either of these? Not if Federal District Court Judge Claudia Wilken becomes woke! And she may, since she's left open the possibility of revisiting O'Bannon in the Alston trial. To get there, Judge Wilken needs to understand the following through a civil rights lens:
First, the NCAA is not about education, it is about business.
According to Cedric Dempsey, the first president of the NCAA:
In the late 1970's, NCAA Division I institutions established a principle of self-sufficiency for its ICA [intercollegiate athletics] programs. As a result, the Division I top tier level moved away from the 'educational model' of athletics toward the 'business model.' At many institutions, especially those at the highest Division I level, athletics programs are treated as auxiliary enterprises within the university. This model has resulted in successful programs placing an emphasis upon potential revenue generating sports by reinvesting their resources to insure [sic.] those sports that have the potential to generate income receive competitive funding to be successful.
According to Myles Brand, the second president of the NCAA: 'In a 2006 speech to NCAA members, [he] explained that ‘commercial activity'like selling broadcast rightsis mandated by the ‘business plan.' The failure to ‘maximize revenues,' he said, would be ‘incompetence at best and malfeasance at worst.''
At the same time, the NCAA disclaims any contractual or fiduciary relationship with the players, and it was even able to get dismissed in 2016 from the McCants case arising out of the UNC academic fraud by arguing that it had no responsibility towards college athletes' education.
Second, the NCAA's business plan has been incredibly successful.
According to data from the Department of Education, in 2016—17, all NCAA college sports accounted for about $16BB in annual revenue, about $11.6BB of which comes from Division I, and about $7.1BB or 61% of that money is generated by the Power Five conferences and their 65 members. Power Five football is 75.9% of all D-I football revenue, and P5 basketball is 64.8% all D-I basketball revenue. It is this concentration of wealth that explains why the P5 conferences now have autonomy from the NCAA, which means that they can pay the players, if they so choose. This is the relevant market for antitrust analysis. Including the Group of Five conferences would only add 14% and 16.5%, respectively, to the market.
Placing this revenue into context, there are 5,525 grant-in-aid (GiA) Power Five football players, with adjusted revenue per player of $880,734.47. There are 845 GiA P5 basketball players, with adjusted revenue per player of $1,382,744.90. Yet all the players get is their total cost of attendance, which itself is an inflated number, as most would qualify for significant financial aid, if they were applying as students and not as athletes.
In addition to not paying the players, there is no required health, disability, or life insurance. As purported non-employees, they do not qualify for workman's compensation. (The term 'student-athlete' was invented by the NCAA in the 1950s to use as propaganda against college athletes filing claims for workman's compensation.)
Third, the NCAA has never figured out a legal way to NOT pay the players.
For instance, in O'Bannon, Judge Wilken held as follows:
The first set of potential buyersthe television networksalready compete freely against one another for the rights to use student-athletes' names, images, and likenesses [NILs] in live game telecasts. Although they may not be able to purchase these rights directly from the student-athletes, they nevertheless compete to acquire these rights from other sources, such as schools and conferences. The fact that the networks do not compete to purchase these rights directly from the student-athletes is due to the assurances by the schools, conferences, and NCAA that they have the authority to grant these rights. Such assurances might constitute conversion by the schools of the student-athletes' rights, or otherwise be unlawful, but they are not anticompetitive because they do not inhibit any form of competition that would otherwise exist.
No one disputes the fact that college athletes own their own NILs, and according to the NCAA's recent executive vice-president for regulatory affairs, Oliver Luck, college 'athletes ha[ve] a ‘fundamental right' to their [NILs], even though the [NCAA] prevents athletes from cashing in on them.'
Basically, the broadcast money that is not being paid to the players is money that could not have been generated without converting (or stealing) the players' NILs.
Fourth, the low graduation rates call into question whether the players are legitimate college students.
In 2017, according to the College Sports Research Institute, the graduation rate for Power Five football players was 61.1% (74.2% for white players, 54.4% for black players) versus 79.3% for the full-time male student body. For P5 basketball players, the graduation rate was 45.0% (58.3% for white players, 41.0% for black players) versus 79.5% for the full-time male student body. The graduation gap between white and black players is more than six times in P5 football and almost twice in P5 basketball, so the racial impact here is palpable. With a less than two percent draft rate to the NFL and NBA, most of these non-graduating players are simply used and thrown away, although an additional few go on to Canadian football or European basketball.
Since the presumption is that those who do not graduate are not good-faith college students, it's like football playing with ringers for two-fifths of the team, and basketball playing with ringers for more than half the team. For this reason, Power Five football and basketball are not real collegiate teams, unless we pretend that they are. In fact, they are a combination of some real college students and some ringers.
Fifth, these players are not integrated into the student body and vice versa.
There are 85 GiA players on a Power Five football team, and 13 on a P5 basketball team, for a total of 98 players. Statistically, it is impossible to integrate them into the student body, because their number is so small, and the P5 student bodies are so large. These players largely do not have time to go to class, because football and basketball require more than forty hours per week plus travel, so they have tutors. This past season, basketball players were reported to be travelling on average 42 days during the season, which is a full trimester. These players tend to have their own living, eating, and work-out environments. Their coaches are generally in favor of segregating them from the regular student body. Simply put, these players are in no way integrated with the general student body.
As if it couldn't get worse, according to the Paxton case, these players are the only 'students' on campus who are not entitled to due process rights under their university student codes of conduct; instead, they are regulated by their university athletic departments without recourse. How they are treated resembles at-will employees. For instance, they essentially have non-compete clauses without compensation forced upon them, their First Amendment rights are trampled in regards to social media, their privacy is invaded via drug tests, and other employee-type restrictions are imposed. Yet there is no accepted right to unionize outside of the Northwestern case, where the NLRB punted.
On the other hand, the student body is a consumer of college football and basketball and enjoys the players' free labor just like everyone else, without being burdened by these employee-like restrictions. A great proportion if not majority of the student body integrate athletics into their educational experiences through campus wellness centers, intramural sports, and intercollegiate club sports. So to the extent that this is a normative value, it is one that universities are meeting on their own regardless of whether they pay their football and basketball players. Or to put it another way, athletics are integrated into the general student body, but the players are not.
Sixth, college football and basketball are not defined by unpaid labor.
As far as the absurdity of the Myles Brand view of the world, that amateurism is defined by not paying the players, when viewers know that the NCAA and Power Five broadcast rights are sold for billions of dollars, and when they know that the P5 coaches are paid more than professional coaches, because they have no player labor cost, to say that the multi-billion dollar 'product' is defined by unpaid player labor is illogical and contrived if not just plain silly.
Ratings have gone up as NCAA and Power Five revenue has gone up. The recent pay-to-play news in basketball did not hurt the March Madness ratings. Instead, what the data does show is that the concept of racial resentment is at work, where whites surveyed were happy to have white players paidjust not black players, who comprise the majority of the starting positions. There is no reliable data showing that viewers would actually tune out, if the players were paid. The Olympic model shows just the converse.
For these reasons, the NCAA cannot prove that its bylaws serve its 'asserted pro-competitive purposes of integrating academics with athletics and preserving the popularity of the NCAA's product by promoting its current understanding of amateurism.'
Since the 1970s, the NCAA has been perpetrating a fraud by advancing a so-called educational model publicly, while privately pushing a business model, all of which came to a grinding halt in North Carolina, when the NCAA finally admitted that it had no responsibility for education. But without the education argument, there is no justification whatsoever for not paying the labor.
Every single contrived justification for the NCAA's version of amateurism is demonstratively false. Whether the Power Five football and basketball players are paid or not, they have long since been commercialized, and that will not change. What should change is mindless deference to the NCAA's self-serving propaganda, which cannot survive even minimal scrutiny.
So in September of this year, will Judge Wilken reexamine the baloney in the NCAA sandwich and spit it out? Will she say it's okay to be about business and not education? Will she recognize that the economics of the sixty-five Power Five universities are far different than the remaining 1,200 members of the NCAA? Will she perpetuate the theft of these players' NILs that she condoned in O'Bannon? Will she recognize that the P5 football and basketball teams play with a significant number of ringers, and will she recognize the racist impact of their low graduation rates? Will she admit that this hoax of integrating athletics into the student body does not include P5 football and basketball players? Will she admit that a product is not defined by stiffing the labor, who the NLRB now views as employees? Will Judge Wilken become woke? We shall see.

* Mr. Johnson was plaintiff's counsel in Oliver v. NCAA, which established college athletes' right to counsel and access to the courts, and he is the author of Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA, which itself engendered a Vice Sports article. To the extent that Alston may become an O'Bannon do-over, his amicus brief in that appeal goes into much greater depth on these issues and is worth a read for those with longitudinal interest. He is a member of the executive board of the College Sports Research Institute at the University of South Carolina, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.

Posted By : Richard G. Johnson

What Might The Supreme Court's Decision In Epic Systems Mean For Sports?

Message posted on : 2018-06-13 - 12:59:00

On May 21, 2018, in Epic Sys. Corp. v. Lewis ('Epic Systems'), 584 U.S. __ (2018), the Supreme Court of the United States issued an important ruling for the future of employee-employer disputes. The Court held that agreements in which employees waive the right to pursue class action lawsuits against the employer, and are instead required to pursue their claims through individualized arbitration, are enforceable under the Federal Arbitration Act (9 U.S.C. § 1 et seq.). Justice Gorsuch, writing for the 5-4 majority, rejected the argument that enforcing such agreements interfered with Section 7 of the National Labor Relations Act ('NLRA'), which guarantees workers 'the right to self-organization, 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.' 29 U.S.C. § 157. Justice Ginsburg provided a vigorous dissent, espousing the important policy rationales behind the NLRA's worker protections.

There are at least two ways in which this ruling may affect professional sports: (1) sports leagues and their clubs may now strongly consider requiring certain employees to sign agreements waiving their right to pursue class action lawsuits and instead force arbitration of individual grievances; and (2) these employees, in response, may increasingly seek to unionize in an effort to protect their rights.

As a bit of background, class action lawsuits have long been an important part of the sports law landscape. Beginning with Robertson v. NBA, 389 F. Supp. 867 (S.D.N.Y. 1975), players have filed many class action lawsuits against major sports leagues (specifically the NFL, NBA and NHL), almost always represented by my colleague Jim Quinn. These lawsuits have alleged that the leagues' restraints on salaries and player movement (e.g., salary caps, free agency rules, and drafts) violated antitrust laws. See, e.g., Brady v. Nat'l Football League, 644 F.3d 661 (8th Cir. 2011); Bridgeman v. Nat'l Basketball Ass'n, 675 F. Supp. 960 (D.N.J. 1987). These cases have historically been resolved through new collective bargaining agreements ('CBAs') between the players (and their unions) and the leagues. See, e.g., White v. Nat'l Football League, 822 F. Supp. 1389 (D. Minn. 1993). These types of lawsuits are likely to occur from time-to-time as CBAs expire and the parties engage in contentious negotiations over new ones.

In recent years, sports leagues and their member clubs have also faced class action lawsuits from several types of employees other than players. While not always successful, these class action claims bring public scrutiny — and potential liability — to professional sports leagues and teams.

First, cheerleaders from several NFL clubs have filed class action lawsuits alleging a variety of claims, generally related to their wages and/or sexual harassment and discrimination. At least one of these cases was dismissed, see Kelsey K. v. NFL Enters., LLC, 254 F. Supp. 3d 1140 (N.D. Cal. 2017), whereas, in another, the cheerleaders successfully obtained class certification, Ferrari v. Nat'l Football League, 153 A.D.3d 1589 (N.Y. App. Div. 2017). Others have settled (link, link).

Second, MLB has recently faced multiple class actions by minor league baseball players alleging that MLB's rules governing minor league pay violated either antitrust laws or the Fair Labor Standards Act ('FLSA'). Importantly, minor league baseball players are not unionized (for reasons that could fill a whole other blog post) and thus, MLB can unilaterally impose rules on minor league players. The antitrust lawsuit was dismissed due to baseball's statutory antitrust exemption. Miranda v. Selig, 860 F.3d 1237 (9th Cir. 2017). The FLSA claims initially gained some traction, see Senne v. K.C. Royals Baseball Corp., 2017 WL 897338 (N.D. Cal. Mar. 7, 2017), but have now been mooted by the recently-passed 'Save America's Pastime Act,' that effectively exempts minor league baseball players (but not minor league players in other sports) from the overtime rules of the FLSA.

Third, scouts for MLB clubs filed a class action lawsuit alleging FLSA violations. Although MLB succeeded in having the case dismissed based on its long-held antitrust exemption, Wyckoff v. Office of the Comm'r of Baseball, 705 Fed. Appx. 26 (2d Cir. 2017), it was another instance in which employees of sports teams sought to challenge their working conditions through class action lawsuits.

With the Supreme Court's ruling in Epic Systems, sports leagues — in an attempt to avoid these types of class actions — may now require certain employees to sign individualized arbitration agreements. Such agreements may impact not only cheerleaders, scouts and minor league players (other than in baseball), but also other employees that work long hours and for relatively low pay, such as those in ticket sales, marketing, stadium operations and grounds crews. Indeed, Dan Nash, a partner at Akin Gump Strauss Hauer & Feld LLP and the NFL's principal outside labor and employment counsel, recently confirmed as much during the recent Sports Lawyers Association Conference. Speaking on a panel about class actions in sports and just days before the Epic Systems decision, Nash indicated his belief that if the Supreme Court ruled in the employers' favor (as it did), sports leagues and teams would likely consider implementing or augmenting arbitration agreements with their employees.

Employees may react to these waivers by engaging in unionization efforts. Indeed, Justice Gorsuch, writing for the majority, upheld the class action waivers in large part because he did not believe that employee class action lawsuits are sufficiently tied to the NLRA's principal purpose of protecting employees' rights to negotiate CBAs with their employers through unions. Justice Gorsuch declared that '[t]hose rights stand every bit as strong today as they did yesterday.' Epic Systems, 584 U.S. __, at *15. Given that proclamation, and the limitations otherwise imposed by the Supreme Court's decision, increased unionization efforts among employees of all kinds, including those in sports, may be a secondary result of Epic Systems.

Lastly, it is worth noting that such provisions are unlikely to end up in player contracts. Player contracts are governed by the CBAs which, as indicated earlier, are contentiously negotiated between the players' unions and the leagues. Those CBAs include broad arbitration provisions through which individual players and/or their unions can — and generally are required to — challenge employer conduct, both on an individualized and collective level. The arbitration provisions expire with the CBAs. At which point, the players regain the opportunity to bring class action antitrust lawsuits — a right they (and their unions) would never expressly waive in their individual contracts.

Posted By : Christopher R. Deubert

New Sports Law Scholarship

Message posted on : 2018-06-04 - 14:34:00

Adams, Ashley J. Comment. Intercollegiate concussions: what the NCAA can do to ease the pain from an inevitable headache. 87 Temp. L. Rev. 193-227 (2014).

Michael Z. Green, student Kyle T. Carney. Can NFL players obtain judicial review of arbitration decisions on the merits when a typical hourly union worker cannot obtain this unusual court access? 20 N.Y.U. J. Legis. & Pub. Pol'y 403-450 (2017). [H]
Posted By : Geoffrey Rapp

Irony can be pretty ironic

Message posted on : 2018-05-24 - 23:52:00

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.
Posted By : Howard Wasserman

The Save America's Pastime Act

Message posted on : 2018-05-14 - 09:55:00

At the behest of Major League Baseball, the omnibus spending bill that Congress enacted back in March included a short, half-page provision known as the Save America's Pastime Act (SAPA). The SAPA created a new exemption to the Fair Labor Standards Act, largely excluding minor-league baseball players from the federal minimum wage and overtime rules.

I just posted the draft of a new law review article -- entitled The Save America's Pastime Act and Its Implications for the Future of Minor-League Baseball -- analyzing the SAPA and its implications for the professional baseball industry. The abstract of the article appears below:
Buried deep within the 2,232-page omnibus federal spending bill passed by Congress in March 2018, was an obscure, half-page provision entitled the 'Save America's Pastime Act' (SAPA). The SAPA was inserted into the spending bill at the last minute at the behest of Major League Baseball (MLB), following several years and several million dollars worth of lobbying efforts. MLB pursued the legislation to insulate its minor-league pay practices from legal challenge after they had become the subject of a federal class-action lawsuit alleging that the league's teams failed to pay minor-league players in accordance with the Fair Labor Standards Act (FLSA). The SAPA largely shields MLB from these claims by creating a new statutory exemption excluding most professional baseball players from the protections of the FLSA.
This article provides the first substantive analysis of the SAPA. Specifically, it asserts that although initial assessments concluded that the provision would shield MLB from any future liability for its minor-league pay practices, a closer reading of the statute reveals that it contains several potential ambiguities that could arguably give rise to unanticipated liability for the league. At the same time, however, the article nevertheless asserts that the SAPA significantly reduces the odds that MLB will be forced to substantially change its minor-league pay practices in the future.
The article can be downloaded here. Any feedback would be greatly appreciated.

Posted By : Nathaniel Grow

NYC Bar Association Event - Taking a Knee: Legal Implications of Athlete Political and Social Activism

Message posted on : 2018-04-17 - 16:16:00

Piggybacking on what looks like a great event at the University of New Hampshire School of Law, I wanted to invite readers to a similar event being hosted by the New York City Bar Association's Sports Law Committee on April 30. Information below.

Monday, April 30, 2018
Posted By : Christopher R. Deubert

UNH Panel: Stick to Sports?

Message posted on : 2018-04-17 - 13:05:00

This Thursday, April 19, the UNH Law Sports and Entertainment Law Society will host "Stick to Sports?", a panel discussion on the social and legal implications of NFL players kneeling for the National Anthem. The event will be open to the public and is set to begin at 6:00 PM in Horton Social Science Center 210 at the Durham Campus. I'm honored to moderate the discussion. Here is more on the panel, which features legal experts, Super Bowl Champions, and politicians:

Don Davis — Davis is the Senior Director of Player Affairs for the NFL Players' Association and a former linebacker. In addition to a 10-year playing career, including two Super Bowls with the New England Patriots, Davis served as a strength and conditioning coach with the Patriots and the team's chaplain.

Sally Gaglini — Gaglini is the founder of the Gaglini Law Group, LLC where she focuses on entertainment law. She is also a published author and an adjunct professor of entertainment law at Suffolk University Law School.

Jon Jarvis — Jarvis is the New Hampshire Operations Manager for U.S. Senator Jeanne Shaheen.

Mary Anne Marsh — Marsh is a nationally recognized political analyst at the Dewey Square Group in Boston. She provides strategic counsel for Fortune 100 companies, non-profits and political campaigns. Marsh previously served in senior roles on the campaigns of Senator John Kerry, Senator Edward M. Kennedy, and Massachusetts State Treasurer Shannon O'Brien as well as a staff member for Kerry. She also directed the first, and most successful, coordinated campaign for the Massachusetts Democratic Party.

Moderator: Michael McCann — McCann is Associate Dean and Director of the Sports and Entertainment Law Institute of UNH Law. He is also Sports Illustrated's Legal Analyst and has written more than 700 articles for SI since 2007. He has written extensively about Colin Kaepernick and will moderate the discussion.

Zoltan Mesko — Mesko is a former NFL punter. He has a Business Administration degree from the University of Michigan's Ross School of Business and a master's degree in sports management from the University of Michigan School of Kinesiology. Mesko played 3 seasons for the New England Patriots.

Andy Sanborn — Sanborn is a Republican New Hampshire State Senator and a GOP Congressional candidate.

Justin Silverman — Silverman is the Executive Director of the New England First Amendment Coalition and a Massachusetts-based attorney. Silverman earned his J.D. from Suffolk University Law School in 2011, and his practice is a mix of journalism, law, and entrepreneurism. Prior to Suffolk, Silverman attended Syracuse University, where he was a news editor for The Daily Orange, earning nominations for both Reporter of the Year and Story of the Year and a William Randolph Hearst Award.

Judge Dwayne D. Woodruff — Judge Woodruff serves as a judge in Pennsylvania's Court of Common Pleas and is a former NFL player who spent 12 seasons as a member of the Pittsburgh Steelers. While with the Steelers, he served as team captain, won a Super Bowl, and earned a law degree from Duquesne University School of Law.

Posted By : Michael McCann

New Law Review Article - The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers

Message posted on : 2018-04-17 - 10:15:00

From May 2014 until May 2017, I was part of the Football Players Health Study at Harvard University. Created in 2014 pursuant to an agreement between Harvard Medical School and the NFLPA,* the Football Players Health Study is a long-term, multi-faceted research project dedicated to understanding the causes of conditions that NFL players face, with the goal of improving their health and wellbeing. More specifically, I was part of the Law & Ethics Initiative of the Football Players Health Study, which studied legal and ethical issues affecting NFL player health. We released several publications on these issues, and I am happy to announce a new one. This week, the Arizona Law Review released our article, entitled "The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers." The abstract is below and I welcome any comments.
The athletes who participate in professional football call themselves (and the public calls them) football 'players,' not football 'workers,' reflecting the reality that as exhausting and high-pressure as their efforts are, they are ultimately playing a sport. Nevertheless, we should not forget that these athletes indeed are workers; they have trained extensively to perform their roles, they do intense physical labor as part of their jobs, they are salaried employees of National Football League ('NFL') clubs, and they are represented by a labor union, the National Football League Players Association ('NFLPA').

This Article is the first to explore in depth what might happen if our society treated professional football like a workplace, subject to government regulation, public—private cooperation or other 'soft law' mechanisms, or required information disclosure to facilitate more informed understanding of the variety of safety and health risks these workers face to provide fans with entertainment. Specifically, it examines how recognizing the NFL as a workplace, governed by the U.S. Occupational Safety and Health Administration ('OSHA') and the law surrounding occupational health and safety, can transform our understanding of the NFL and player safety. This topic has gained considerable and growing public attention, particularly regarding the recent and controversial concerns over the possible long-term risks of neurological damage in these workers.

The Article explains that OSHA clearly has the authority to regulate the NFL. Nevertheless, there is little to no precedent or guidance for OSHA to insert itself into the on-the-field aspects of professional sports. We discuss in detail the small body of case law that bears on OSHA's authority in entertainment and sports, which opens some doors for OSHA to issue standards but also sets limits on its ability to alter the nature of the entertainment or sport. But more importantly, there are a host of political and practical reasons we discuss, which make it very unlikely that OSHA will attempt to regulate the NFL. Nevertheless, there are a wide variety of ways for OSHA to intervene or involve itself without regulating, as discussed at length in the Article. Adding a public institution like OSHA as a party to existing labor-management discussions concerning health and safety may be the best natural evolution of the issue.

Many in the public seem to believe that football must become safer to thrive and hope that it will. Regulations or 'soft law' approaches have sometimes worked well even in complicated, uncertain, and fraught issues. OSHA understands evidence from a public health lens, and it is the institution empowered by Congress and the courts to help balance the competing goals of worker protection versus cost and liberty in an open setting. So we place the onus on OSHA in this Article: the agency should be more willing to step up to this challenge and less conflicted about offering to participate in an issue where it has expertise complementary to that which the NFL and NFLPA bring, as well as a unique opportunity to help bring about constructive change.

* The Football Players Health Study is supported by funds set aside for research by the NFL—NFLPA collective bargaining agreement. The NFLPA does not control or direct the scope or content of any of the work from the Football Players Health Study.

Posted By : Christopher R. Deubert

Fall 2019 "Sports Law Analytics" PhD Program Opportunity

Message posted on : 2018-04-05 - 15:36:00

Starting Fall 2019, I will be be able to sponsor 1-2 new PhD students here at Florida State University ('FSU'). New students studying under my supervision may be funded for at least three years (assuming reasonable progress each year and compliance with university guidelines). Such funding usually includes a teaching appointment (undergraduate sports law course), a research/living stipend, a teaching/research assistant position, and tuition remission.

A PhD program is a full-time endeavor. The doctoral degree may be completed in as few as three years, but programs may be structured for completion in four years. PhD programs represent a c
onsiderable investment in time and may carry heavy opportunity costs.

The phrase 'sports law analytics' is in quotes for a reason…there is no doctoral degree (that I am aware of) in such a topic. In my mind, 'sports law analytics' is the application of parsimonious quantitative methods
to legal issues in the sports industry. The actual degree program here at FSU would result in a PhD in 'sport management.' A PhD student studying under my supervision would take coursework that lends itself to being able to take a quantitative look at legal issues in sports. Learning how to conduct archival research would be key too. Graduates would be capable of publishing research in peer reviewed academic journals and law reviews. Papers included in my Google Scholar profile are illustrative.

The ideal candidate would fall under one or both of the following categories: (i) someone who is a graduate of an ABA-approved law school with a documented interest in sports law and some degree of statistical acumen/interest and/or (ii) someone who holds an undergraduate or graduate degree in economics or statistics and can demonstrate an interest in sports law issues.

All candidates must be proficient in either Bluebook or APA. Experience with Stata and/or Excel is desirable.

The foregoing is not meant to be an exhaustive explanation of the PhD program or its component parts. If you are interested, please contact me for further details. I am happy to discuss on the phone or in-person.

Posted By : Ryan M. Rodenberg

The Incredibly Shrinking NFL Concussion Litigation Opt-Out Class

Message posted on : 2018-04-05 - 15:05:00

It is well known that, in 2013, the NFL reached a class action settlement with former players concerning the NFL's policies toward, and handling of, concussions. Over the loud objections of many former players and their counsel, the settlement was eventually approved in 2015, In re Nat'l Football League Players' Concussion Injury Litig. ('NFL Concussion Litig.'), 307 F.R.D. 351 (E.D. Pa. 2015), then affirmed by the Third Circuit, 821 F.3d 410 (3d Cir. 2016), and denied review by the Supreme Court, 137 S.Ct. 591 (2016). The objections to the settlement were numerous, including, but not limited to, concerns about the medical conditions covered, the amounts to be awarded, and the claims process. Nevertheless, all objections were rejected by the District Court and Third Circuit (though new ones have recently arisen).

The settlement's approval left former players (of which there are approximately 20,000) and their families with difficult decisions. Did they want to take what they could get from the settlement (ranging from $1.5 to $5 million depending on the player's condition and subject to various reductions) or risk pursuing their claims against the NFL individually or as part of a smaller class of players? Some former players undoubtedly believed they deserved more than the settlement provides. Many were also outraged that the NFL was able to settle the lawsuit without admitting any fault and before discovery — through which the NFL's alleged wrongful conduct might have been revealed. Of course, pursuing a lawsuit individually posed (and poses) substantial legal challenges, including the possibility that the claims would be barred by the collective bargaining agreement or statute of limitations, or, that despite the player's condition, he would not be able to prove his condition was caused by the NFL's wrongdoing.

Interestingly, over time, it appears fewer and fewer former players are willing to take on the risks posed by litigation. In a November 3, 2014 report, the settlement's claims administrator stated that 220 former players or their family members had chosen to opt out of the settlement. NFL Concussion Litig., 12-md-2323 (E.D. Pa.), ECF No. 6340. On April 21, 2015, the day before the District Court's decision approving the settlement, the number of opt-outs had shrunk to 198. Id. at ECF No. 6507. On May 4, 2015, following the District Court's decision, that number shrunk to 175. Id. at ECF No. 6533. Finally, on November 6, 2017, in the most recent report from the claims administrator, it was revealed that only 94 opt-outs remain. Id. at ECF No. 8899.

In other words, since the District Court approved the settlement, 104 former players or their family members chose to rejoin the settlement rather than pursue individualized litigation against the NFL. In each instance, the NFL consented to, and the Court approved, the person opting back into the settlement.

In December 2017, the remaining opt outs filed new short-form complaints in the NFL Concussion Litig., as well as motions to remand their lawsuits back to the various state courts where they had initially been filed (arguing that their claims are not preempted by the collective bargaining agreement). By pursuing litigation, the opt-out plaintiffs will likely ensure court decisions on complicated issues (such as preemption and causation) that have been the subject of considerable discussion in the sports law community. Further, those decisions may either push opt-out plaintiffs to opt back into the settlement or embolden those plaintiffs to take their case through trial.

Posted By : Christopher R. Deubert

NCAA Business Model Under Fire

Message posted on : 2018-04-02 - 10:53:00

The NCAA should be scared. For its business model is in jeopardy. Yes, the 'March Madness' model, with a billiondollars flowing to the NCAA and millionsto elite coaches, with little left for the student-athletes who make it all possible.
The threat comes from antitrust litigation. The lawsuit led by former Clemson football player Martin Jenkins on behalf of men's football and men's and women's basketball student-athletes was just cleared for trial. The student-athletes claimthat the NCAA and 11 conferences violated antitrust law by 'conspiring to impose an artificial ceiling' on the scholarships and benefits they can receive.
First, a bit of history. In the first trial taking direct aim at the NCAA's amateurism defense, former college basketball star Ed O'Bannon challenged rules preventing student-athletes from being paid when their name, image, or likeness (NIL) appeared in videogames, live game telecasts, and other television footage.
The NCAA's long-avowed defense based on amateurismthat its rules prohibiting payment to players are essential for college sports to existwas revealed in the O'Bannon case to have significant holes. Judge Claudia Wilken found that the rules had significant anticompetitive effects in preventing the student-athletes from receiving NIL payments. And while the amateurism defense was weaker than alleged, it was sufficient to allow the court to reach the question of whether there were less restrictive alternatives to the NIL rules.
The court found two such alternatives: (1) increasing payment from the 'grant in aid' (GIA) (covering tuition and fees, room and board, and required books) to the 'cost of attendance' (COA) (which also includes supplies and transportation) and (2) allowing players to receive $5,000 NIL payments held in trust until they graduated. (The Ninth Circuit, applying an aggressive standard of review, rejected the second.)
In a nutshell, O'Bannon opened the door to scrutiny of the NCAA's amateurism defense with the relatively limited goal of obtaining NIL payments.
In contrast, the Jenkins case aims for the whole enchilada. The plaintiffs already settledwith the NCAA on their damages claim, obtaining the $200-million difference between the GIA and COA. In the proceedings headed to trial, they seek an injunction, forcing the NCAA to change the way it does business.
In its March 28 ruling, the court first found that plaintiffs' case was not barred by the O'Bannon case. The court explained thatbecause of new plaintiffs and different challengesthis case can go forward.
The court then found that the student-athletes satisfied their burden of showing an anticompetitive effect because they would have obtained greater compensation and benefits absent the NCAA's restrictions on payment.
The court next accepted the NCAA's justifications recognized in O'Bannon of amateurism and integrating the student-athletes into the schools' communities. But it made clear that it would not presume the justifications but that defendants had to prove them at trial.
Finally, and most notably, the court explained that the stage of less restrictive alternatives would be applied differently in this case than it was in O'Bannon. For instead of being restricted to the limited remedy of NIL payments, the student-athletes' more ambitious challenge here is accompanied by more far-reaching remedies: (1) allowing conferences to set their own rules and (2) blocking NCAA rules limiting payments and benefits linked to educational benefits and incidental expenses.
At the end of the day, the court made clear that NCAA regulations are subject to antitrust scrutiny. And amidst the bright lights and rich rewards of March Madness, the NCAA will be challenged like never before to defend rules that seem arbitrary and inconsistent to the student athletes who are at the heart of big-time college sports but who are left on the outside when the money comes rolling in.

Posted By : Warren K. Zola

The Faulty Law and Economics of the "Baseball Rule"

Message posted on : 2018-03-20 - 09:24:00

Today marks the first day of spring, meaning that the start of baseball's regular season is right around the corner. To mark the occasion, I have posted a copy of my latest law review article, "The Faulty Law and Economics of the 'Baseball Rule,'" forthcoming later this year in the William & Mary Law Review, on SSRN.

The article (co-authored with my former University of Georgia student Zachary Flagel) examines the common-law rule immunizing professional baseball teams from most injuries sustained by fans after balls or bats leave the field of play. The full abstract for the article appears below:
This article examines the so-called 'Baseball Rule,' the legal doctrine generally immunizing professional baseball teams from liability when spectators are hit by errant balls or bats leaving the field of play. Following a recent series of high-profile fan injuries at Major League Baseball (MLB) games, this century-old legal doctrine has come under increased scrutiny, with both academic and media commentators calling for its abolition. Nevertheless, despite these criticisms, courts have almost uniformly continued to apply the Baseball Rule to spectator-injury lawsuits.
This article offers two contributions to the ongoing debate surrounding the Baseball Rule. First, it provides new empirical evidence establishing that the risk of being hit by an errant ball or bat at a professional baseball game has increased considerably in recent years. Specifically, fans attending MLB games today are sitting more than twenty percent closer to the field than they were when the legal doctrine was first established. This fact, along with other changes in the way in which the game is played and presented to fans, have converged to substantially reduce the reaction time that spectators have to protect themselves from flying objects entering the stands, calling into question courts' continued reliance on the century-old rule.
Second, the article makes the novel observation that courts and academic commentators have, to date, failed to reconsider the Baseball Rule in light of the emergence of the law-and-economics movement, and in particular the contributions it has offered regarding the optimal apportionment of tort liability. By subjecting the doctrine to such an economic analysis, this article finds that the host team will usually constitute the lowest-cost or best-risk avoider, thus suggesting that the legal immunity currently provided by the Baseball Rule inefficiently allocates tort liability in spectator-injury lawsuits.
As a result, the article concludes by contending that future courts (or legislatures) should reject the Baseball Rule and instead hold professional baseball teams liable for spectator injuries. Specifically, it asserts that the Baseball Rule should be replaced by a strict liability regime, thereby better incentivizing teams to implement the most economically efficient level of fan protection in their stadiums.
Anyone interested in reading the paper can download it here. Any and all feedback would be appreciated!

Posted By : Nathaniel Grow

The Return of Salary Arbitration in Major League Baseball

Message posted on : 2018-03-15 - 18:31:00

The right for certain classes of MLB players to have their salary determined through a neutral arbitration process was a hard-fought right obtained as part of players' efforts to gain free agency during the early 1970s (Ed Edmonds provides an excellent history of this issue). The players gained considerable leverage with the 1975 Messersmith/McNally arbitration decision (upheld by the courts) that provided players a path to free agency. See K.C. Royals Baseball Corp. v. Major League Baseball Players Ass'n, 532 F.2d 615 (8th Cir. 1976). With this leverage, in 1976, MLB and the MLBPA negotiated a new collective bargaining agreement ('CBA') that provided players with free agency after six years, and the right to salary arbitration for players with two to six years of experience.

The system remains largely the same today, providing players with three to six years of experience (or certain players with only two years known as 'Super Twos'), the opportunity to have their next season's salary determined via a neutral arbitration process. The CBA sets forth the criteria that is considered in determining the player's salary: the player's performance; special qualities of leadership and public appeal; the length and consistency of the player's contribution; the player's past compensation; comparative baseball salaries; the club's record; and any physical or mental defects on the part of the player. See MLB CBA, Art. VI.

Importantly, the arbitration panel can only choose the salary submitted by either the player or the club — it cannot choose a different salary, such as the midpoint. This 'final offer arbitration' system is intended to force the two sides to submit more reasonable bids (to both each other and the arbitration panel) that are more likely to lead to settlements before an arbitration hearing takes place. While as many as 200 players may be eligible for salary arbitration each year, the success of the process may be revealed by how many of those cases settle before an arbitration hearing takes place.

In fact, the data indicates that, during the history of MLB salary arbitration, the 'final offer arbitration' system has worked with increasing frequency. Using data from baseball writer Maury Brown and the website MLB Trade Rumors, during the 1980s there was an average of 21.3 hearings per offseason; in the 1990s, there was an average of 13.7 hearings; in the 2000s, there was an average of 7 hearings; and finally, between 2010 and 2014 there was an average of only 4.2 hearings. Indeed, there were no hearings at all in 2013 — meaning every case settled.

However, this trend is reversing. While there were only 4 hearings in 2016, there were 14 in 2015, 15 in 2017, and 22 in 2018. Why?

Although MLB and MLBPA have a contentious labor history, they have recently experienced sustained labor peace. In November 2016, the parties agreed to a new collective bargaining agreement through the 2021 season; 2021 would mark 26 years since the sport's last work stoppage. Nevertheless, this offseason has shown that there are serious strains in the relationship. Free agents have not received the contract offers to which they believe they are entitled, causing some to allege collusionby the clubs. Without new contracts and clubs, the free agents (with the help of MLBPA) have conducted their own spring training while awaiting the offers they think they deserve. Thus, an increase in the number of salary arbitration hearings might be reflective of a more generalized disagreement between players and clubs about their appropriate compensation.

This apparent disagreement may also be the result of what seems to be an increasing willingness of clubs to challenge a rise in player salaries by pursuing salary disputes through the conclusion of the arbitration process — albeit, in many instances, unsuccessfully — as reflected in the aggregate arbitration hearing records. In 43 years of salary arbitration:
  • In 32 of those years (74.4%), clubs won the majority of salary arbitration hearings;
  • In 10 of those years (23.3%), players won the majority of salary arbitration hearings; and
  • In 1 year, all the cases settled.
Additionally, in recent years clubs seem to be employing a 'file and trial' strategy, which requires some explanation. The clubs and their salary arbitration eligible players typically attempt to negotiate deals in December and early January. If they are unable to reach a deal, they must 'file' and exchange requested salary figures between which the arbitration panel will decide. This year the filing deadline was January 12, with hearings taking place in the first two weeks of February. Nothing prevents players and clubs from continuing to negotiate after the filing deadline and before the hearing, but it is decreasingly common. Instead, clubs are insisting that if the parties do not negotiate a settlement before filing, the case will proceed to a hearing (or 'trial'). The clubs hope that this type of hard deadline forces more players to accept the club's last offer.

The next CBA negotiation will not take place for a few more years. It remains to be seen how labor relations will develop over that time. In the interim, salary arbitration might be the canary in the coal mine on labor relations in baseball.

Disclosure: I assist Glenn Wong, Professor, Sandra Day O'Connor College of Law at Arizona State University, perform salary arbitration work for the Baltimore Orioles.

Posted By : Christopher R. Deubert

Fordham Sports Law Forum: 22nd Annual Symposium

Message posted on : 2018-02-27 - 16:43:00

The annual Fordham Sports Law Forum will be held this Friday, March 2, 2018. As always, there are some terrific speakers, panels, and the event if open, and free, to the public. And, since some of our contributors (and friends) will be appearing, we want to call the event to your attention.

9 - 9:20 am: Check-in
9:20 - 9:30 am: Welcome Remarks: Fordham Law Dean Matthew Miller
9:30 - 10:10 am: Keynote: Andrew Brandt
10:10 - 10:20 am: Break
10:20 - 11:20 am: NFL Suspensions for On and Off Field Conduct (James Quinn & Jaia Thomas)
11:20 - 12:20 pm: Sports Gambling (Daniel Wallach, Keith Miller, and Darren Heitner)
12:20 - 1:15 pm: Lunch Break
1:15 - 2:15 pm: Recent NCAA Violations (Mark Conrad, Thomas Baker, Warren K. Zola)
2:15 - 2:30 pm: Break
2:30 - 3:10 pm: Afternoon Keynote: Jeff Gewirtz
3:10 pm: Closing

Posted By : Warren K. Zola

NFL Agents and Tortious Interference

Message posted on : 2018-02-23 - 09:13:00

I am currently representing an NFLPA-certified contract advisor (better known as an 'agent') in a dispute with another agent. The NFLPA's Regulations Governing Contract Advisors require certain types of disputes between agents (and also between agents and players) to be adjudicated through an NFLPA-governed arbitration process. This has been the case since 1994, shortly after the NFLPA recertified itself as the bargaining representative of NFL players following the White v. NFL settlement. By recertifying itself, the NFLPA regained its authority to certify and regulate agents under the National Labor Relations Act.

Representing an agent or a player in these grievances (as I've done in the past) provides an interesting window into the NFLPA arbitration system and case law. In order to allow the parties to be properly prepared, the NFLPA provides the parties with all prior arbitration decisions brought under its auspices. At present, there have been approximately 290 decisions in disputes between an agent and a player (almost always involving an unpaid commission or the return of money loaned). On the other hand, there are only 22 decisions in an action brought by an agent against another agent — less than one a year.

The paucity of actions does not necessarily reflect the absence of grievances initiated. Arbitrator Roger Kaplan — who has handled almost all of the arbitrations brought under the NFLPA Regulations — is known for having a deft hand in forging settlements before any decision is rendered.

Nevertheless, what is particularly interesting is the nature of the claims brought and the results reached in the 'agent v. agent' cases. In 18 of the cases, the principal claim was, what would be called in civil litigation, tortious interference (my current case is not such a case). Section 3(B)(21)(a) of the NFLPA Regulations prohibits an agent from:

Initiating any communication, directly or indirectly, with a player who has entered into a Standard Representation Agreement with another Contract Advisor . . . if the communication concerns a matter relating to the: (i) Player's current Contract Advisor; (ii) Player's current Standard Representation Agreement; (iii) Player's contract status with any NFL Club(s); or (iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise.
Nevertheless, Section 3(B)(21) does not apply if the player initiates the communication, if the player has less than 60 days left on his player contract, or to generalized marketing materials.

You don't have to spend much time with an agent to understand the fierce competition within their industry — which is horribly cut throat (about half of all agents don't have a single client). However, even though agents regularly accuse other agents of stealing each other's clients, there are only 18 cases where agents brought an action against another agent claiming tortious interference under Section 3(B)(21)(a). And in all 18 of those cases, the arbitrator found for the respondent, determining that the complaining agent had failed to prove a violation of Section 3(B)(21)(a) or its predecessor provisions.

There are a variety of factors which may contribute to an undefeated record for respondents in 3(B)(21) cases: (1) limited discovery in arbitration likely makes it challenging to prove any improper communications occurred; (2) many alleged improper communications likely occur orally and in a group gathering, making the question of who initiated what and when challenging; (3) as mentioned above, Section 3(B)(21) provides a variety of exceptions to the prohibition against contact, seemingly in order to enable players to be well-represented during contract negotiations; and (4) many agents are likely resigned to the nature of their industry and have little faith in seeking relief for alleged wrongs.

Solicitation of another agent's clients undoubtedly occurs. Several courts have found that such behavior appropriately provides players with competitive choices. See, e.g., Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir. 1999); Champion Pro Consulting Group, LLC v. Impact Sports Football, LLC, 116 F. Supp. 3d 644 (M.D.N.C. 2015) (disclosure: I represented Impact Sports in this case); Bauer v. Interpublic Group of Companies, Inc., 255 F. Supp. 2d 1086 (N.D. Cal. 2003). But at what point is the behavior inappropriate? Unfair? Tortious interference? And if so, do NFL agents have meaningful recourse? The current arbitral case history suggests these are open questions.

Posted By : Christopher R. Deubert

Meldonium and the Olympic Games

Message posted on : 2018-02-20 - 20:12:00

The curling world was shocked to learn that the husband of the Russian married team of Krusheinitsky and Bryzgalva tested positive for the banned substance Meldonium at the Olympics. When PEDs invade a sport in which the most strenuous activity involves using a broom to sweep an ice path, you know, as SI used to tell us, the apocalypse is upon us.

Meldonium is an interesting drug. It was developed in Latvia where it is almost exclusively manufactured. Not surprisingly, it is former Soviet Bloc athletes who swear by its performance enhancing effects; that is, before they swear they never used or even heard of such a drug. It's the same substance tennis star Maria Sharapova was caught using which resulted in her two year suspension from the circuit..

It works by essentially training the body to make more efficient use of its blood supply. It does this by inhibiting the obscure process known as carnitine biosynthesis. Cells use the naturally occurring amino acid carnitine to burn fat to produce energy. But when carnitine is depleted, the cells learn to switch to burning glucose, which produces more energy per oxygen molecule than fat. When blood cells retain oxygen longer, muscles fatigue at a slower rate.

Taking Meldonium is markedly different than blood doping in which an athlete adds blood or sometimes synthetically produced EPO to his or her body before an endurance competition like Lance Armstrong used to do before racing up the Alps.

As far as scientists have determined, Meldonium has no or very limited harmful effects. (Of course, British and American scientists also have yet to prove it has any positive effects either, but what do they know.) In Russia, the drug is used for heart related ailments because it is thought to prevent tissue damage caused by a lack of blood flow to the heart.

Unlike steroids, what most people think of when they hear about PEDs, which can cause its users to act aggressively or even violently, those who have sampled Meldonium say it induces a state of serenity while enhancing alertness, just the ticket apparently if you need to rhythmically sweep a broom so the team's stone can end up precisely where your partner intended it to go. In animal tests, Meldonium has been shown to improve sexual performance and sperm motility. And it has a pleasant sounding name, almost musical.

Considering how dangerous some of these Winter Olympic events appear to be, what is the risk of a little Meldonium for these curlers? 'Serenity Now!' as Frank Costanza used to say.


Posted By : Alan C. Milstein

Harvard Law School: 2018 Sports Law Symposium

Message posted on : 2018-02-19 - 09:30:00

Harvard Law School will be holding their 2018 Sports Law Symposium on Monday, February 26. With terrific speakers, including two of our own, it's an event that is worth attending if you are able.

11:00 am: Fireside chat with NBPA Executive Director Michele Roberts

12:00 pm: Weiler Awards Luncheon

1:00 pm
Topic: Legal Evolution of the National Hockey League
Panelists: Paul Kelly, Eric Macramalla, Marina Carpenter, Chris Nowinski & Larry Elswit

2:00 pm
Topic: Arenas / Expansions
Panelists: Mark Faber, Tim Leiweke, Irwin Raij, Ahron Cohen & Megha Parekh

3:00 pm
Topic: College Basketball
Panelists: Len Elmore, Michael McCann, Paul Kelly, Andy Schwarz & Warren K. Zola

4:00 pm
Topic: Sports Law in Private Practice
Panelists: Jeff Kessler, Layth Gafoor, Michael Wall & Brian Castello

Reception to follow.

Posted By : Warren K. Zola

Former Linebacker Tests Application of Disability Laws to NFL Workplace

Message posted on : 2018-02-09 - 09:09:00

Former Linebacker Tests Application of Disability Laws to NFL Workplace

The NFL is an extraordinary workplace — players face risks and earn incomes far beyond the imagination of many Americans. Nevertheless, it is a workplace — meaning it is governed by the same state and federal laws as any other workplace. Moreover, the NFL and NFLPA cannot collectively bargain around these laws as the NFL learned in the StarCaps case. Williams v. Nat'l Football League, 582 F.3d 863 (8th Cir. 2009), cert. denied, 562 U.S. 1029 (disclosure: my prior law firm represented Kevin and Pat Williams).

Despite being protected by traditional workplace laws such as the Civil Rights Act, Occupational Safety and Health Act ('OSH Act'), Americans with Disabilities Act ('ADA'), and the Genetic Information Nondiscrimination Act ('GINA'), players rarely seek protections under these statutes. In one law review article I recently co-authored, we explained the potential application of the ADA and GINA to the NFL workplace (including potential violations at the NFL Combine) — and in a forthcoming work, we address the application of the OSH Act to the NFL workplace.

Despite the application of these laws to the NFL, litigation is rare. One former NFL player has recently initiated a lawsuit seeking their protection. On September 29, 2017, Erin Henderson, an NFL linebacker from 2008-16 with 119 career tackles and 8.5 sacks, sued the New York Jets, his most recent employer, in New Jersey state court alleging violations of the New Jersey Law Against Discrimination. Specifically, Henderson alleged that he suffered from bi-polar disorder and that the Jets placed him on the Non-Football Injury list (depriving him of his salary) and ultimately terminated him because of his condition.

The Jets removed the case to federal court on diversity grounds — but did not argue that Henderson's claims were preempted by the Labor Management Relations Act, an argument that is frequently made by NFL clubs. Henderson responded by filing an amended complaint that added a federal ADA claim. Then, on December 20, the Jets answered the amended complaint. The fact that the Jets did not move to dismiss supports the viability of these claims at least at the pleading stage.

Henderson will now have the benefit of discovery and we can await the prospect of a court ruling establishing important precedent about the application of the ADA to the NFL. If Henderson is successful, perhaps more players will seek the protections afforded by workplace laws.

The case is Henderson v. New York Jets, LLC, 17-cv-10110 (D.N.J.).

Posted By : Christopher R. Deubert

The overwhelming effect of stays pending appeal

Message posted on : 2017-11-09 - 17:10:00

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted By : Howard Wasserman

The Oxford Handbook of American Sports Law

Message posted on : 2017-11-09 - 11:05:00

As many professors who teach sports law are in the process of deciding which textbook to use in the spring of 2018, the Sports Law Blog wanted to provide you with yet outstanding choice. Oxford University Press will be publishing The Oxford Handbook of American Sports Law edited by our own Michael McCann this December.

The Oxford Handbook of American Sports Law takes the reader through the most important controversies and critical developments in law and sports. Over the course of 30 chapters, leading scholars, recruited by Professor McCann to contribute to this textbook, explore this expanding and captivating area of law. The Handbook is the first book to gather dozens of perspectives on sports law controversies in the United States, and will be of interest to those who study and practice sports law, as well as journalists, broadcasters, and legally minded sports fans.

Professor McCann provides the structure, introduction, and several chapters to this outstanding textbook. Not surprisingly, in addition to others, Professor McCann recruited many of the contributors to the Sports Law Blog to share their expertise by providing chapters for this textbook including: Ed Edmonds, Gabe Feldman, Jimmy Golen, Nathaniel Grow, Alan Milstein, Geoffrey Rapp, Daniel Wallach, and Warren K. Zola.

You can review the book at the Oxford University Press website here, and check out the table of contents here. We, the Sports Law Blog, hope you strongly consider adopting this textbook for your upcoming sports law courses.

Posted By : Warren K. Zola

Jews and the 2017 World Series

Message posted on : 2017-10-25 - 17:12:00

Some off-the-cuff baseball history.

The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).

In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.

Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in the 1945 World Series. I cannot find any homers since then. Who am I missing and when?

[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]

[Further Update: Pederson homered for the Dodgers' first run of Game 2, making this the first Series with home runs by multiple Jewish players.]

[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]

Posted By : Howard Wasserman

Zeke TRO Win Sets Stage for Preliminary Injunction

Message posted on : 2017-10-19 - 23:15:00

Back in late August, before the Ezekiel Elliott saga took many jurisdictional twists and turns, I laid out the case for why the NFLPA would likely defeat the NFL in court. I explained in that now-prescient post that the NFLPA would advance a "fundamental fairness" argument predicated on Elliott being deprived of the opportunity to confront and cross-examine his domestic violence accuser, Tiffany Thompson, and also being denied access to the league investigators' notes of their interviews with Ms. Thompson.

Unlike the Brady case, where the missing witness, Jeffrey Pash, played only a minor role in the Deflategate controversy, Ms. Thompson's accusations (bolstered by in-person interviews with league investigators) provided the very foundation of the league's discipline against Elliott. Based on this important distinction, the Second Circuit's decision in Brady (aka Deflategate) is not the barrier to an Elliott court victory that most observers believed--at the time (and even now).

Nearly two months later, Elliott's "fundamental fairness" argument has been bolstered by a series of federal court rulings--in three different courts. The most damaging of these rulings--for the NFL--was Judge Amos Mazzano's September 8, 2017 memorandum and opinion granting the NFLPA's motion for a preliminary injunction. That ruling, which blocked the NFL from imposing its six-game suspension and cleared the way for Elliott's return to the Cowboys' active roster in Week 1,

Posted By : Daniel Wallach

NEW LAW REVIEW ARTICLE -- A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis

Message posted on : 2017-10-18 - 14:17:00

As many of you know, on September 30, 2015, the United States Court of Appeals for the Ninth Circuit held in O'Bannon v. National Collegiate Athletic Association that the National Collegiate Athletic Association violated Section 1 of the Sherman Act by prohibiting member colleges from offering their athletes compensation equal to the full cost of their college attendance.

This case opened up the door for a subsequent lawsuit -- Jenkins v. National Collegiate Athletic Association, which attempts to challenge a broader range of restraints on big-time college athlete pay under antitrust laws. The plaintiffs' lawyers in the Jenkins lawsuit include Jeffrey Kessler, David Greenspan, and other members of the same legal team that regularly represent NFL and NBA players in their labor and antitrust disputes.

I have just completed the final draft of my newest law review article, entitled "A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis." This article looks carefully at the Jenkins litigation, as well as the steps that plaintiffs' lawyers will need to take to secure broader financial rights for college athletes. Among other things, this article looks at the O'Bannon legal teams' failure to show that paying college athletes will not harm consumer demand for big-time college sports and how the legal team in Jenkins may be able to better address that issue.

My newest article, which derives from a presentation I gave last year at LSU Law School, will appear in the upcoming edition of Louisiana Law Review. It will also available for free download here.

Posted By : Marc Edelman

NFLPA victim of drive-by jurisdictional ruling

Message posted on : 2017-10-17 - 13:14:00

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted By : Howard Wasserman

Decision Time in College Athletics: Are College Athletes Students or Employees?

Message posted on : 2017-09-21 - 10:49:00

Deservedly, college athletics has been under assault the past several years. Most of the criticism has been directed at calling out the hypocrisy of this multi-billion-dollar industry in allowing all associated with it the opportunity to extract every penny they can, except the college athletes producing the product.

Lawsuits, boycotts, unionization efforts, and advocacy groups call for greater compensationbe it salaried or merely the rights of athletes to control their own names, images, and likenesses. And while the compensation issue isn't going away anytime soon (see O'Bannon v NCAA and Jenkins v NCAA) another more disturbing debate is now the topic du jour this yearNCAA transfer rules. The spotlight is on these rules as word leaked that the NCAA is considering modifying the existing guidelines for transfers.

The NCAA places significant restrictions on the ability of college athletes to move from school to school. Once a student signs a National Letter of Intent to attend an institution, they are bound to that school. This contract of adhesion is deeply flawed for the studentswho can neither negotiate the terms nor, for the most part, compete without signing one. And while this commitment is something schools and coaches who enforce these contracts hold in high regard, it is not reciprocal. Coaches make promises to recruits about their loyalty to an institution all the time and then, even under contract, jump to other schools deemed to offer better career prospects.

There is no shame in moving from one opportunity to anotherwe all do it. More money, higher profile, it's part of the 'American dream.' However, if a student wants to leave one school for another, coaches and college administrators are swift and vocal in their claims of betrayal and breach of contract. And, let's be clear, in the end the vitriol against students' transferring is based not on some version of loyalty but on the ability of management to control labor's movements.

In business, there's a simple way to ensure employees don't move around in ways that destabilize a company; employment contracts include 'non-compete' clauses all the time. 'But wait' you say, 'college athletes (at least according to the NLRB's flawed decision) aren't employees.' EXACTLY, that's the point. If college athletes aren't employees then they should be able to transfer without restrictions. If they are employees, then they have a right to unionize and negotiate better terms of employment.

The NCAA's response is always 'but we're maintain the time-honored tradition of amateurism.' However, other than clinging to this antiquated definition of amateurism which the evolution of college athletics has demolished, there is no logical rationale for this dichotomy. Either freedom of movement should be allowed, or these restrictions must be balanced with some other benefitlike compensation in some form.

Finally, what makes the debate all the most duplicitous is that the most ardent advocates against 'free agency' for college athletes are coaches who, without fail, jump from opportunity to opportunity leaving students, fans, and others behind to redefine their version of loyalty.

Posted By : Warren K. Zola

NFL Faces Uphill Battle in Obtaining "Emergency Stay" from Fifth Circuit

Message posted on : 2017-09-10 - 07:29:00

The next legal front in the NFL vs. NFLPA battle over Ezekiel Elliott's 6-game suspension is expected to open this week (perhaps as soon as Monday), when the NFL files its notice of appeal of Judge Mazzant's preliminary injunction ruling. But that act alone will not jeopardize Elliott's playing status for the 2017 NFL season. Federal appeals often take many months to resolve. And the Fifth Circuit (which hears appeals originating from lower federal courts in Texas, Louisiana and Mississippi) is no exception. According to recent federal court management statistics, the average duration of an appeal in the Fifth Circuit is 8.8 months (measured from the date of the filing of a notice of appeal to its ultimate disposition). By that measure, it could be April or May at the earliest before there is a final decision on the NFL's appeal. And even if the appeal were "expedited" (which either party could request on a showing of "good cause"), the appeal would likely still be pending (meaning unresolved) at the end of the 2017 NFL season. This is because even expedited appeals (like all appeals) still require a full briefing on the merits--which would entail the filing of an opening brief, an answer brief, and a reply brief (spaced out over a period of many weeks), an oral argument before a three-judge panel, and, ultimately, a written decision which could take weeks to finalize. It is unrealistic--and next to impossible--to expect all that to be accomplished by January.

But there is one procedural vehicle that the NFL could still use to reinstate Elliott's suspension THIS year. Once it files its notice of appeal, the NFL could ask the Fifth Circuit to "stay" Judge Mazzant's preliminary injunction pending the outcome of the appeal. In other words, the NFL would ask the Fifth Circuit (and Judge Mazzant before that) to prevent the injunction from going into effect for the entire duration of the appeal. Such a maneuver, if successful, could lead to an immediate reinstatement of Elliott's suspension and force him to sit out six games this season. But under the appellate rules, the NFL would first have to ask Judge Mazzant for a stay before it could properly present an application for similar relief to the Fifth Circuit. And, of course, Judge Mazzant is unlikely to stay his own injunction, especially not after concluding that Ezekiel Elliott faces "immediate" irreparable harm from the NFL's disciplinary action. Once Judge Mazzant denies that request (assuming that it is even made--remember, the NFL opted not to seek an emergency stay of the Deflategate lower court decision), the focus would then shift to the Fifth Circuit, perhaps as soon as this week, leading to another frenzied round of briefing (and another court ruling) prior to Week 2 of the NFL season.

But such a gambit is not likely to succeed. In order to obtain a stay of a lower court order pending appeal, an applicant (here, the NFL) must show four things: (1) a likelihood of success on the merits of the appeal; (2) that "irreparable harm" will befall the NFL in the absence of a stay; (3) that comparatively little harm will be suffered by the other parties (e.g., the NFLPA and Elliott) if the court issues the stay; and (4) that a stay would benefit the public interest. See Voting for America, Inc. v. Andrade, 488 Fed. Appx. 890, 893-94 (5th Cir. 2012) ("The standards governing a stay are well established: '(1) whether the applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'") (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d (1987))

If these standards seem familiar, it is because they are essentially the same requirements which governed the issuance of the preliminary injunction. Indeed, in the Andrade case, the Fifth Circuit acknowledged that "[t[he factors to be considered in deciding whether to stay an order pending appeal are virtually the same as the factors used by a court in deciding whether to issue a preliminary injunction." Id at 894. But just because a preliminary injunction was issued to Elliott, that does not necessarily mean that the NFL has a good chance (or even a "puncher's chance") of securing a stay of the injunction pending appeal. As numerous federal courts (including the Supreme Court) have repeatedly cautioned, a stay pending appeal is an "extraordinary remedy" that should be granted only in "extraordinary circumstances." See Williams v. Zbaraz, 442 U.S. 1309, 1311, 99 S.Ct. 2095, 2097, 60 L.Ed.2d (1979) ("Stays pending appeal are granted only in extraordinary circumstances."); Andrade 488 Fed. Appx. at 895 ("A stay pending appeal is an 'extraordinary remedy.'"); Archer & White Sales, Inc. v. Henry Schien, Inc., 2017 WL 661768, at *1 (E.D. Tex. Feb. 17, 2017) ("Under Fifth Circuit law, the stay of a case pending appeal constitutes 'extraordinary relief.'" (quoting Reading & Bates Petroleum Co. v. Musselwhite, 14 F.3d 271, 275 (5th Cir. 1994))

In my view, the NFL faces a nearly insuperable obstacle in securing an emergency stay: the lack of irreparable harm (element #2). While we can all reasonably debate which of the two sides is more likely to ultimately succeed on the merits of the appeal (me: the NFLPA), what is incontestable here is the absence of any "irreparable harm" to the NFL. That element and the 'balancing of the harms' (the third requirement) play out decidedly in Elliott's favor on a motion for a stay pending appeal. As a professional athlete with a relatively short career span (as compared to most conventional occupations), a suspension of even a short duration (which six games is not) would constitute "irreparable harm" to Elliott. The federal courts have repeatedly acknowledged that professional athletes have a limited time to ply their trade and that improper suspensions constitute the requisite "irreparable harm" that would support the issuance of a preliminary injunction.

Judge Mazzant's "irreparable harm" analysis underscores the difficult task awaiting the NFL should it decide to seek an emergency stay from the Fifth Circuit. In the portion of his opinion addressing "irreparable harm," Judge Mazzant concluded that Elliott "is likely to suffer irreparable harm if he is improperly suspended based on a fundamentally unfair arbitration proceeding." He explained:
Elliott is faced with missing six games, which is a large portion of the NFL's season, and potentially deprived Elliott of the ability to achieve individual successes and honors. . . . The careers of professional athletes are 'short and precarious, providing a limited window in which players have the opportunity to play football in pursuit of individual and team achievements.' . . . The Court joins the long line of cases that have previously held that improper suspensions of professional athletes can result in irreparable harm to the player. Nat'l Football League Players Ass'n v. Nat'l Football League, 598 F. Supp. 2d 971, 982 (D. Minn. 2008) ("Williams") (citing Jackson, 802 F. Supp. 226, 230-31 (D. Minn. 1992); Brady v. NFL, 779 F. Supp. 2d 992, 1005 (D. Minn. 2011), rev'd on other grounds, 644 F.3d 661 (8th Cir. 2011); Prof'l Sports Ltd. v. Va. Squires Basketball Club Ltd., 373 F. Supp. 946, 949 (W.D. Tex. 1974)

By contrast, Judge Mazzant reasoned, the NFL would not suffer any irreparable harm from the issuance of a preliminary injunction. He rejected as "unpersuasive" the NFL's argument that the "agreed-upon internal procedure" for resolving disciplinary appeals (as contained in Article 46 of the CBA) would be "eviscerated" by an injunction in this case:
While the NFLPA and NFL have an agreed-upon procedure, that procedure is intended to be one of fundamental fairness. Given the current set of facts, an injunction does not eviscerate the internal procedures of the NFL and NFLPA but merely ensures the internal procedures are being carried out in the appropriate manner. Both the NFL and the NFLPA "have an interest in ensuring that the suspensions meted out under the [Personal Conduct Policy] are not tainted by [fundamental unfairness] and wrongdoing." Williams, 598 F. Supp. 2d at 983. Therefore, the Court finds that the NFLPA showed the balance of hardships weighs in favor of granting an injunction.
Further, while left unsaid in Judge Mazzant's order, the reality here (and a far more important point) is that the NFL can always impose a six-game suspension on Elliott at a later date (such as next year) were it to eventually prevail on appeal in the Fifth Circuit. Indeed, Commissioner Goodell's August 11, 2017 letter informing Elliott of his six-game suspension does not expressly provide for it to begin "on" or "by" a specific date--only that it would be six total games in duration. ("You are hereby suspended without pay for six (6) regular season games, subject to appeal"). In other words, the league will eventually get its "pound of flesh" from Elliott (assuming, of course, that it wins on appeal). By contrast, Elliott will never get back the "lost" six games if a stay were entered, the suspension reinstated and served during the appeal, and then the Fifth Circuit affirms Judge Mazzant's order. While the powers of a federal judge are vast and all-encompassing, they are not so powerful as to enable "time travel." No federal judge has the power to turn back time--literally. Once those games are gone, they are gone forever, and Elliott will never get them back. Based solely on the irreparable harm issue (and the related 'balancing of harms' inquiry), Elliott and the NFLPA should be able to successfully forestall any attempt by the NFL to obtain a stay of the preliminary injunction pending appeal.

But if the Fifth Circuit disagrees and enters a stay, it could be a true "game-changer." The second one in a week. And it would potentially (and likely) signal the Fifth Circuit's eventual decision on the merits of the appeal: principally, that the NFL will prevail on appeal. To be sure, if the Fifth Circuit enters a stay pending appeal, it is basically saying two things: (1) that the harm to the NFL from an injunction remaining in effect is greater than the harm to Elliott from having to serve a six-game suspension (even if he were to later win on appeal); and (2) the NFL will likely prevail on appeal (the more important take-away of the two). That's why this week--even more so than Judge Mazzant's ruling on Friday night--may ultimately determine Elliott's fate for the 2017 NFL season. While it would be a surprise to me (as well as the wrong decision) if a stay were issued here, if we have learned anything from the Elliott, Brady and Peterson legal sagas it's that--just like in a football game--there are frequent momentum shifts and that today's inspiring victories could soon become tomorrow's crushing defeats. While I don't expect that to occur in the Elliott case, there is always that possibility as his case ascends the judicial ladder. And we could get an early preview as soon as this week.

--- Daniel Wallach

Posted By : Daniel Wallach


Message posted on : 2017-09-02 - 11:59:00

In biblical times, Ezekiel had a vision of interlocking wheels and prophesied the tragic destruction of Jerusalem. Ezekiel Elliot, whose wheels have carried him to fame and fortune with the Dallas Cowboys, just might see a more contemporary powerful Kingdom known as Goodell's NFL succumb to a similar fate.

Some thought Goodell and the NFL would learn from its mistakes in Deflategate. After all, but for his Hail Mary to the Second Circuit, things looked mighty grim for the Commissioner after Judge Berman's decision in the District Court. But instead the NFL was so emboldened by its ultimate victory over the best quarterback in the league, it doubled down in imposing the six game suspension on the game's top running back. Quite a marketing plan.

It's not just that the investigation involved the actions of Mr. Elliot while he was technically still a college athlete and had not yet signed an NFL contract. It's not just that the authorities investigating the incident at the time, when the facts were fresh, could not come to any conclusion one way or the other that wrongdoing had occurred.

In this case, the NFL assigned Kia Roberts alone the task of interviewing the complaining party and Ms. Roberts, a former New York Assistant District Attorney hired to be the NFL's Director of Investigations, did not believe a suspension was warranted. The NFL did not ask for Ms. Roberts' recommendation and, among other procedural missteps, did not give Mr. Elliot and his counsel the opportunity to confront the accuser, a basic tenet of due process.

The NFL did think that, by appointing Mr. Henderson to serve as the arbitrator instead of Mr. Goodell, it would eliminate any criticism that the Commissioner was cop, judge, jury and executioner. But Mr. Henderson, always a company man, was anything but an independent decision maker. Had they chosen someone outside the NFL cabal, they might have stood a better chance of not having the suspension suspended and ultimately revoked. But then, that independent arbitrator may have decided differently.

Curiously, and as our colleague Dan Wallach predicted, Mr. Elliot and the NFLPA filed a petition to overturn the suspension in a Texas Federal District Court, a thousand or so miles from the Second Circuit's jurisdiction, before the arbitration process was concluded, getting the jump on the NFL which had first filed against Brady the moment it was issuing its final ruling.

This time the argument may not be limited to this or that procedural defect at the arbitration, which allowed the Second Circuit to reverse what was surely Judge Berman's correct result, considering there was actually no competent evidence that any footballs were deflated. Here, as well as in Deflategate, it is the ruling itself that is the best evidence that something is surely amiss in the manner in which the NFL conducts its arbitrations and disciplines its stars.

Posted By : Alan C. Milstein

NFL's Evidence Exclusion May Pave Way for Elliott Victory in Federal Court on "Fundamental Fairness" Grounds

Message posted on : 2017-08-28 - 22:17:00

As noted legal philosopher, Yogi Berra, once famously remarked: "It's deja vu all over again. More than two years after the National Football League handed Tom Brady a decisive lower court victory in Deflategate for denying his legal team access to crucial evidence--only to be bailed out later by a federal appeals court--the NFL is back to its old ways. This time, and in an even more damaging way, the NFL has thrown another evidentiary roadblock in the path of an NFL player attempting to challenge a league suspension. And this one could come back to haunt the league in court (I believe it will. More on that shortly). Late last week, Harold Henderson (the league-appointed arbitrator presiding over Ezekiel Elliott's arbitration) refused a request from Elliott's legal team to make Elliott's accuser, Tiffany Thompson, available for cross-examination at the arbitration hearing. The NFL of course, as a private entity, has no legal authority to compel Ms. Thompson to appear as a witness. The NFL is not a court of law (although sometimes it pretends to be), and, therefore, has no subpoena power over persons not affiliated with the NFL.

But the NFL went one fatal step further--it also denied Elliott's team access to the notes from the league's multiple interviews with Ms. Thompson. These interviews (and the notes therefrom) played a central role in the league's decision to suspend Elliott for six-games under the NFL's personal conduct policy. The NFL's Investigative Report reflected interviews with "more than a dozen witnesses, including Ms. Thompson." (NFL Letter to Elliott dated August 11, 2017). To be sure, the NFL's decision to suspend Elliott for six games was at least based, in part, on the league investigators' numerous interviews with Ms. Thompson. At least six such interviews were conducted. So while the league could not have legally compelled Ms. Thompson to appear as a witness, the interview notes are the next best evidence (short of live testimony and cross-examination). Part of the NFLPA's strategy at the arbitration hearing will be to attack Ms. Thompson's credibility by challenging the veracity of her statements to the NFL and police investigators. With no witness--and now no notes--the NFLPA has been dealt a serious setback in its ability to successfully pursue that strategy.

One of the basic tenets of our legal adversary system is the ability to confront and cross-examine accusing witnesses. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be protected by the Sixth Amendment (in criminal trials) and the Seventh Amendment (in civil jury trials). The central function of this right is to protect the accused from the use of ex parte statements as evidence against him. Accordingly, the 'Confrontation Clause' prohibits the admission of testimonial statements made by witnesses outside of court, unless the witnesses are unavailable and the defendant had a previous opportunity to cross-examine him or her.

But arbitration is a different animal. It is a less formal process than a court case, and the rules of evidence are not rigidly applied. As numerous federal decisions have observed, "in making evidentiary determinations, an arbitrator need not follow all the niceties observed by the federal courts. The arbitrator need only grant the parties a fundamentally fair hearing." However, while there may not be an 'absolute' right to confront and cross-examine accusing witnesses in an arbitration proceeding, there is another vehicle for raising this argument under a different guise: the doctrine of "fundamental fairness." Under Section 10(a)(3) of the Federal Arbitration Act ("FAA), federal courts can vacate an arbitration award where "the arbitrators were guilty of [any] misconduct . . . by which the rights of any party have been prejudiced, thereby amount[ing] to a denial of [a party's right] to fundamental fairness of the arbitration proceeding." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 19-20 (2d Cir. 1997). Refusing to hear evidence "pertinent and material to the controversy" is one of the classic grounds for challenging an arbitration ruling on "fundamental fairness" grounds.

In NFL vs. Brady, for example, U.S. District Judge Richard Berman (of the Southern District of New York) held that Commissioner Goodell's arbitration award upholding Tom Brady's four-game suspension was defective because the Commissioner deprived Brady of "fundamental fairness" by denying him the opportunity to cross-examine NFL Executive Vice President and General Counsel Jeff Pash, who was designated by the league as the "co-lead investigator" along with Ted Wells (the author of the infamous "Wells Report"). As recounted in Judge Berman's opinion, Pash "was allowed to review a draft of the Wells Report and to provide Paul, Weiss [the law firm which employed Wells] with written comments or edits prior to the Report's release to the public." By denying Brady the opportunity to cross-examine Pash at the arbitration hearing, Judge Berman identified two distinct ways in which the NFL "prejudiced" Brady's right to a fundamentally fair hearing: (1) he was "foreclosed from exploring, among other things, whether the Pash/Wells investigation was truly 'independent,' and how and why the NFL's General Counsel came to edit a supposedly independent investigation report"; and (2) "there was no other witness, apart from Pash, who was as 'competent to address the substantive core of the claim.'" Judge Berman observed that as "co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL's degree of involvement in, and potential shaping of, a heralded 'independent' investigation." Thus, as Judge Berman concluded, "[t]he issues known to Pash constituted 'evidence plainly pertinent and material to the controversy."

Unfortunately, the Second Circuit reversed Judge Berman on this issue, characterizing Pash's role in the investigation as "collateral" to the issues at arbitration, and, therefore, not material or important enough to constitute a violation of fundamental fairness. According to Judge Barrington Parker (the author of the Second Circuit's majority opinion), "[t]he insights Pash might have had and the role he might have played in the preparation of the Wells Report were concerns that were collateral to the issues arbitration. The CBA does not require an independent investigation, and nothing would have prohibited the Commissioner from using an in-house team to conduct the investigation." The Second Circuit also reversed Judge Berman's second basis for finding that the arbitration lacked "fundamental fairness": the NFL's refusal to provide Brady with access to the Paul, Weiss investigative files. On that point, the Second Circuit agreed with the NFL's argument that the CBA does not require the exchange of such notes, pointing to the Article 46 provision specifying that the parties need only "exchange copies of any exhibits upon which they intend to rely," which the court interpreted as not requiring "extensive discovery."

Those skeptical of Ezekiel Elliott's chances in federal court have consistently pointed to the Second Circuit's decision in Brady, and to a lesser extent, the Eighth Circuit's decision in Peterson, as granting Commissioner Goodell somewhat of a carte blanche to do as he pleases without judicial interference. I'm not buying into that. It wasn't too long ago that the NFL was on a horrendous losing streak in court cases. Its record in recent legal controversies (e.g. 'Bountygate,' Ray Rice. and the lower court decisions in Brady and Peterson) was abysmal until the two recent federal appeals court decisions turned the tide. But sometimes the pendulum swings back the other way. First, there is no guarantee that the Elliott case will even be litigated in the Southern District of New York. As I have speculated (and even urged), the NFLPA may try to win the proverbial 'race to the courthouse' by filing a preemptive lawsuit in a Texas or Ohio federal court before Henderson issues his arbitration ruling. Given the NFL's past conduct in Deflategate--where it controlled the timing of the release of the arbitration decision and then promptly filed a lawsuit in New York federal court before the NFLPA could react--I would not be surprised if the NFLPA tried to get the jump on the NFL by filing suit in advance of a Henderson ruling. Such a tactic--no worse than what the NFL did in Deflategate--would allow the NFLPA to secure its preferred forum (e.g., Texas or Ohio) under the "first-to-file" rule for determining the priority of competing federal lawsuits.

But even if forced to litigate in New York, I'm not convinced that the lower federal court or the Second Circuit would adhere to the Deflategate decision on the question of "fundamental fairness." The Second Circuit did not absolutely foreclose the use of "fundamental fairness" as a grounds for vacatur in labor arbitration cases, although it has not expressly recognized it either. Nonetheless, there is a world of difference between excluding a "collateral" witness like Jeff Pash (who was not a central character in the Deflategate saga) and denying an accused access to an undeniably critical witness such as Tiffany Thompson, whose statements to the NFL provided the foundation for the discipline imposed against him. While she obviously can't be compelled to testify (as I have noted, the NFL lacks that power), the notes of her extensive interviews with the NFL are nonetheless important pieces of evidence, certainly much more so than the Wells investigative files in Deflategate. The exclusion of these notes, in my view, is far more harmful to Elliott's case (and the overall fairness of the arbitration) than was the denial of the investigative files to Brady. Like night and day. The Second Circuit might even agree.

But even looking at cases beyond Deflategate, federal courts reviewing arbitration awards often look to whether the party challenging the award had a full and fair opportunity to question and cross-examine his accusers. See, e.g, Finelli v. SW Airlines Co., 2002 WL 1610585 (N.D. Tex. July 19, 2002). The Finelli decision could be especially helpful to Elliott if he files suit in the Northern District of Texas. In confirming a labor arbitration award, the Texas federal court held that the terminated flight attendant "was afforded a full and fair opportunity at [the] arbitration hearing to question and cross-examine persons who accused him of violating his former employer's sexual harassment policy. The court further noted that the terminated employee "was provided with [the] investigator's interview notes, which could have been used to point out any inconsistencies between witness' testimony and their original statements." Elliott does not have anywhere near the same protections--no cross-examination and no notes--as the terminated employee did in Finelli.

Given the obvious importance of Ms. Thompson's testimony, the NFL runs the risk of seeing its two-case winning streak come to an end, whether it's in Texas or New York. In this respect, Elliott's case can be seen as much stronger than Brady's.

-- Daniel Wallach

Posted By : Daniel Wallach

Baseball announcers really do not understand the Infield Fly Rule

Message posted on : 2017-08-23 - 00:17:00

I am watching the ESPN broadcast of Angels-Rangers and am stunned by how badly the announcing crew does not understand the Infield Fly Rule. In the bottom of the fourth, the Angels had first-and-second/one-out when Albert Pujols hit a pop-up halfway between home and the mound. The catcher could not play the ball which drifted away from him and fell to the ground. The catcher threw to third for what he thought was a forceout, but the third-baseman did not tag the runner. But the home plate umpire declared that runner safe, because the first-base umpire had invoked infield fly, removing the force on the runners. At the end of the day, the Angels had second-and-third/two-out.

But the announcing crew started talking about the play and the IFR and it was somewhat amazing to hear them be so wrong about:

• They complained that the umpire had not called it until the ball was about on the ground. That was factually wrong, as a wide-angle replay from the left side clearly showed the first-base ump raising his fist when the ball was at its highest point or had just started to descend.
• They complained that the umpire did not invoke as soon as the ball was in the air. But the ump cannot call it as soon as it is in the air, because he has to determine that it is playable with ordinary effort. Sometimes that means waiting for the ball to almost come down to the ground. At a minimum, it means waiting for the ball to reach its apex and see whether someone can catch it with ordinary effort. On that point, I am not sure the call was correct, as the ball was drifting away from the catcher and might not have been playable with "ordinary effort."
• They kept insisting that it was obvious this was an infield fly and there was no judgment involved that would cause the umps to have to think about it. But the question is not whether the ball is on the infield, but whether it is playable with ordinary effort. That involves judgment.

From watching seven years worth of IFR plays, I have listened to a lot of announcers guessing (wrongly) about the rule). This was among the worst conversations I have heard.

Posted By : Howard Wasserman

Beckman v. Chicago Bears

Message posted on : 2017-06-21 - 11:59:00

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted By : Howard Wasserman

DePaul Law Review Publishes Three Articles In Symposium Edition On Fantasy Sports And The Law

Message posted on : 2017-05-25 - 16:52:00

Last week, DePaul Law Review released its Volume 66 edition, which includes three articles from its 2016 symposium on fantasy sports and the law.

(2) Attorney Darren Heitner wrote the provocative piece entitled "Why Fantasy Sports Should Welcome Uniformity of Law."

(3) The trio Justin Fielkow, Daniel Werly and Andrew Sensi published "Tackling PASPA: The Past, Present, and Future of Sports Gambling in America."

Fantasy sports and the law is an emerging field with a lot of people making bold assertions in blogs and to the media, but not too much formal legal research. I strongly recommend all three of these articles based on their ability to withstand the formal scrutiny that is required before law review articles are published.

Posted By : Marc Edelman

Hope to see you at the 2017 Oregon Law Summer Sports Institute

Message posted on : 2017-05-16 - 16:21:00

Looking to study sports law this summer?

You might be interested to know that I'll be teaching again this July at the University of Oregon's annual Summer Sports Institute. This is a five-week, six-credit program that brings together faculty and experts from across the nation to teach in an immersive environment. The program is designed for students who are interested in sports law but attend law schools that don't offer a meaningful regular-semester sports law program.

Like last summer, I'll be joined by Matthew Mitten (Marquette), Gabe Feldman (Tulane), Jo Potuto (Nebraska), Andrew Brandt (Villanova), Maureen Weston (Pepperdine), and a host of others. Also, I'm told the program will feature around 20 outside speakers from as far away as Barcelona, including Ed Goines, the general counsel of the Seattle Seahawks, Paul Loving, US sports law counsel for Adidas, and Marcos Motta, the Brazilian lawyer who represents Neymar.

To apply, or if you have any questions, contact program director Robert Illig at

The final deadline is June 2nd. Former participants have raved to me about how much they've learned from the program and how much fun they had making connections with other like-minded students, faculty and practitioners. Hope to see you there!

Posted By : Michael McCann

Sport and speech, part 766

Message posted on : 2017-05-04 - 12:12:00

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But how is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.
[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?
2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted By : Howard Wasserman

Infield fly rule is not in effect and it produces a triple play

Message posted on : 2017-05-03 - 13:57:00

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first. It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Posted By : Howard Wasserman

The solution to late-game fouling?

Message posted on : 2017-04-06 - 09:38:00

No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.
But it appears Nick Elam, a middle-school principle and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).

The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.

The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).

On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.

Posted By : Howard Wasserman

Lexi Thompson and the application of golf's rules

Message posted on : 2017-04-03 - 12:53:00

Last Sunday, the golf world suffered through another difficult rules incident when the LPGA, acting on a tip from a television viewer, imposed a four-stroke penalty on Lexi Thompson for a small rules violation commited during play concluded on the previous day. This penalty probably cost Ms. Thompson the tournament (one of the LPGA's majors), as she wound up losing in a playoff.

Commentary immediately following this fiasco predictably and appropriately included criticism about acting on tips from TV viewers and the notion that a penalty could be imposed long after play in a given round had concluded. One thing missing, however, was detailed analysis about the substantive ruling itself. Most commentators appeared to presume that the LPGA had no choice in the matter because the rules of golf clearly prescribed the outcome, painful as the outcome was.

Was this really the case? A closer look at the rules of golf suggest that an entirely different result would have been entirely defensible, and in many ways far better for the game.

The LPGA stated that Thompson had violated rule 20-7C by playing from the wrong place. This violation allegedly happened when Thompson marked her ball on the green in accordance with the rules, picked it up, and then placed the ball back on the green before putting. TV replays showed that Thompson inadvertently failed to place the ball exactly where it was when she picked it up. This put Thompson in apparent violation of rules 16-1b and 20-1, which require a marked ball to be 'replaced.' When Thompson then putted the ball from this location, she (in the opinion of the LPGA) played from the wrong place.

I do not believe that was the only interpretation of the rules available to the LPGA. First, Rule1-4 states, 'If any point in dispute is not covered by the Rules, the decision should be made in accordance with equity.'

Second, the meaning of the word 'replace' does not necessarily mean that Thompson violated the rule. One might, as the LPGA apparently did, interpret that word to mean that the competitor must place her ball in exactly the same place as it rested when picked up. Of course, no competitor ever does precisely that. Every ball, by reason of human error, is placed back on the green some minute distance from its original location. Thus, the meaning of 'replace' cannot refer to exactly where the ball previously rested. Instead, there is a margin for error that must be permitted.

How large a margin should there be? One possibility is to interpret 'replace' so that a player doesn't violate the rule if the ball is close enough to its original location to avoid any meaningful advantage. Another possibility is to interpret the word so that the player doesn't violate the rule if the variance from the original location is within a distance capable of casual perception by others present on the green. Together, these interpretations probably conform to everyday practice. Golfers do not stand over their fellow competitors to make sure that balls get replaced exactly in the same location. They are content to police the rule within what's casually perceptible because errors smaller than that do not lead to meaningful advantage.

This interpretation would have kept Thompson in the clear. She clearly did not gain any material advantage from her error. From watching TV replays, I seriously doubt her ball was more than an inch from where it originally lay. Her putt was extremely short and probably would have been conceded by an opponent in match play. No one, to my knowledge, has claimed that Thompson made her putt easier.

Additionally, I think it is significant that no one (including her fellow competitors, their caddies, or any rules official who may have originally been present) noticed the supposed misplacement. Instead, the problem came to light because a viewer watching TV emailed the LPGA. Yes, when you watch the replay and you're told to look for it, it's possible to see that Thompson's ball is perceptibly 'misplaced.' However, it's not really apparent without a zoom-in shot, and I highly doubt that anyone watching her at the time could have seen it without standing over her to monitor every movement in detail. No golfer does that to a fellow competitor.

Accordingly, there is ample room to argue that Thompson did indeed 'replace' her ball within the meaning of the applicable rules. I am of course aware that one could reach a different interpretation, one based on a more literal meaning attached to 'replace.' However, it's not as if the Rules of Golf require remorseless literalism. For example, Rule 20-1 clearly states that a player suffers a one-stroke penalty if she picks up her ball without marking it first. Nevertheless, decision 2-4/3 excuses such a violation, despite the apparently 'no exceptions' wording of the rule, when a player reasonably makes a mistake about whether her putt has been conceded in match play.

Mind you, I am not claiming that only one interpretation of the rules is possible. Rather, I'm pointing out that the rules used to punish Thompson were not as clear as people may think, and that the precise outcome of her situation is not truly 'covered by the Rules.' Thus, equity should have played a role in applying the rules to Thompson, and I believe that equity would have led away from finding her in breach of the rules.

It may be appropriate to come up with new rules about not accepting violations found by TV viewers or imposing a "statute of limitations" on how much time can pass before rules violations will not be acted upon. However, it also behooves those responsible for applying golf's rules to think carefully about the role of equity in their administration of existing rules. Observers of golf will keep calling in potential minor rules violations, and escalating all of them into tournament-altering incidents risks souring the public on the game itself.

Posted By : Alfred C. Yen

Rugby and the Infield Fly Rule

Message posted on : 2017-02-28 - 16:14:00

I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.

As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.

In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."

But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.

First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.

But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.

Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.

Posted By : Howard Wasserman

How To Pay College Athletes Without Taxing Their Scholarships (UPDATED LINK)

Message posted on : 2017-02-22 - 16:03:00

In recent years, many opponents to paying college athletes including U.S. Senator Richard Burr (R - N.C.) have proclaimed that paying college athletes would cause athletes to lose the tax-exempt status of their scholarships. This argument, while scary to "pay for play" advocates, is not necessarily accurate.

In a forthcoming law review article in Boston College Law Review entitled "For Student-Athletes to Employee Athletes: Why a 'Pay for Play' Model of College Sports Would Not Necessarily Make Educational Scholarships Taxable," I explain why a "pay for play" model for college sports would not necessarily require college athletes to pay taxes on their educational scholarships. While previous literature on this topic have considered this issue exclusively under Section 117 of the tax code (qualified scholarship exemptions), this article looks at five separate tax code sections and poses numerous different ways that colleges could conceivably maintain the tax-exempt status of paid college athletes' scholarships.

I would encourage those interested in college athletics, education law, tax law, and the college athletes rights movement to read this article. All feedback is encouraged.

Posted By : Marc Edelman

Boston College Law School Sports Symposium

Message posted on : 2017-02-22 - 09:30:00

Tis the season for sports law symposiums. The Boston College Law School will be hosting their "Second Annual Sports Law Symposium" this Saturday, February 25 from 2:00 to 5:00 pm. There will be three panels, two of which will be moderated by two of our own editors: Michael McCann and Warren Zola. (Note: as they do the circuit they will also both be at Harvard Law School on Tuesday, March 7. Details here.)

The Legality of Daily Fantasy Sports
Moderator: Michael McCann, University of New Hampshire
Panelists: Fred Yen, Boston College Law School and Faisal Hasan, DraftKings

Keynote on Collective Bargaining in Professional Sports
Speaker: Lyman Bullard, Choate, Hall & Stewart

Legal Issues in College Athletics
Moderator: Warren K. Zola, Boston College
Panelists: Alex Roy, Brown University and Paul Kelly, Jackson Lewis

The day is open to the public, but the organizers ask you email Kayla Acklin.

Update: The symposium was great, and three Sports Law Blog contributors were there....

Warren Zola, Michael McCann, Jimmy Golen

Posted By : Warren K. Zola

Intentional walks and limiting rules

Message posted on : 2017-02-22 - 08:39:00

Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.

Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).

The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).

Posted By : Howard Wasserman

Northwestern Law 3rd Annual Sports Law Symposium

Message posted on : 2017-02-20 - 09:01:00

For anyone who will be in Chicago this coming Wednesday, February 22nd, Northwestern University's Pritzker School of Law will be hosting its 3rd Annual Sports Law Symposium, and I am honored to join the panel. See below for details:

From Colin Kaepernick's refusal to stand for the national anthem to the NCAA's decision to relocate the men's basketball tournament, 2016 saw several political stands in the sports world. In 2017, this trend is set to continue, as Super Bowl champions plan to skip the customary White House trip and figures like NBA coach Gregg Popovich criticize the President's policies. Join us as our panelists discuss these and other headlines, as well as the risks and legal issues associated with activism in the sports industry.

6:15 PM -8:30 PM


Timothy Liam Epstein
, Chair of Duggan Bertsch Sports Law practice group, Adjunct Professor of Law at Loyola University Chicago School of Law.

John Kaites, Principal and founding partner at Global Security and Innovative Strategies; Of Counsel at Fennemore Craig in Phoenix, Arizona; Has represented fourteen Major League Baseball Clubs, two NBA Basketball Teams, and the National Hockey League.

Tony Pashos, 1L at Northwestern Pritzker School of Law; Former American football offensive tackle who played in the NFL with the Baltimore Ravens, Jacksonville Jaguars, San Francisco 49ers, Cleveland Browns, Washington Redskins and Oakland Raiders.

Rick Smith, Partner of Priority Sports & Entertainment agency, alum of Northwestern Pritzker School of Law.

Marques Sullivan, Vice President of the NFL Retired Players Association; Head Coach at Midwestern Preparatory Academy; Former professional American football offensive lineman for the Buffalo Bills, the New York Giants, the New England Patriots and the Chicago Rush.

Posted By : Tim Epstein

Liberal Sportwriting

Message posted on : 2017-02-17 - 17:16:00

The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read.
Posted By : Howard Wasserman

Legal & Ethical Issues Affecting NFL Player Health

Message posted on : 2017-02-17 - 11:20:00

Harvard Law School will be holding their 2017 Sports Symposium on Tuesday, March 7 with the topic this year of "Legal & Ethical Issues Affecting NFL Player Health." The event will be highlighted by a keynote address by DeMaurice Smith, the executive director of the NFLPA. The tentative panels and participants are:

Keynote Address
DeMaurice Smith, Executive Director, NFLPA

Concussion Legacy Foundation
Chris Nowinski, Co-Founder & CEO, Concussion Legacy Foundation
Robert Cantu, MD, Co-Founder & Medical Director, Concussion Legacy Foundation
Isaiah Kacyvenski, Co-Founder & Managing Director, Sports Innovation Lab
Peter Carfagna, Lecturer on Law, Harvard Law School

NCAA Panel
Oliver Luck, EVP of Regulatory Affairs, NCAA
Brant Berkstresser, Assoc Dir of Athletics, Head Trainer, Harvard University
Buddy Teevens, Head Football Coach, Dartmouth University
A.L. (Lorry) Spitzer, Partner, Ropes & Gray
Warren K. Zola, Carroll School of Management, Boston College

Athlete Panel
Andrew Hawkins, Cleveland Browns
Stephon Tuitt, Pittsburgh Steelers
Johsnon Bademosi, Detroit Lions
Michael McCann, University of New Hampshire

Team, NFL & NFLPA Perspectives
Arthur McAfee, SVP of Player Engagement, NFL
Joe Briggs, Public Policy Counsel, NFLPA
Kevin Warren, COO, Minnesota Vikings
Christopher Deubert, Senior Law & Ethics Associate, Petrie-Flom Center, Harvard Law School
Kenneth Shropshire, Professor, Wharton School

Open to the public, the event will run from 9:00 am to 3:30 pm in Milstein West on the Harvard Law School campus. For more details on the event, feel free to contact Carlin O'Donnell, the Director of the Sports Symposium for HLS's student-run Committee on Sports & Entertainment Law (CSEL).

Posted By : Warren K. Zola

Trade Secrets in Professional Team Sports

Message posted on : 2017-02-03 - 09:49:00

Earlier this week, Major League Baseball's commissioner Rob Manfred closed the book on the professional sports industry's first known case of corporate espionage in the digital era. Back in 2015, news reports emerged that the Federal Bureau of Investigations was exploring whether one or more officials from the St. Louis Cardinals had illegally accessed -- or hacked -- a proprietary database belonging to the Houston Astros. The Cardinals' former scouting director, Christopher Correa, was ultimately identified as the perpetrator and charged for the offense. As a result, Correa is currently serving a 46-month jail sentence in federal prison.

On Monday, Commissioner Manfred docked the St. Louis Cardinals the team's first two draft picks in the 2017 draft, and ordered the team to pay a $2 million fine. Both the draft picks and the fine will be given to the Astros as compensation for the illegal intrusion. In addition, Manfred also placed Correa on the permanently ineligible list, banning him from future employment in professional baseball for life.

The Cardinals-Astros incident highlights the emerging importance of the legal protection of proprietary information and analytics to the professional sports industry. In order to learn more about the steps that sports teams are taking to protect these types of data, I conducted a survey of the in-house legal counsel working for teams in the four major North American sports leagues this past spring, in the hopes of discovering both the types of proprietary information that teams are protecting under trade secret law, as well as the measures these teams are utilizing to safeguard their data.

The results of the survey are now available part of a new law review article, "Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports" (co-authored with my wife, Lara Grow), to be published this fall in the Washington & Lee Law Review. A working draft of the paper is now available for download. Here's the article's abstract:

The protection of trade secrets within the professional sports industry became a hot-button issue in the summer of 2015, after news reports emerged revealing that officials from Major League Baseball's St. Louis Cardinals were under federal investigation for having illegally accessed proprietary information belonging to their league rival, the Houston Astros. Indeed, professional sports teams in the United States and Canada often possess various forms of proprietary information or processes ranging from scouting reports and statistical analyses to dietary regimens and psychological assessment techniques giving them a potential competitive advantage over their rivals. Unfortunately, as with the rest of the economy at-large, little empirical data exists regarding either the types of proprietary information owned by these teams, or the measures that teams are taking to protect their trade secrets.

Drawing upon freshly collected survey data, this article helps to fill this void in the literature by providing novel empirical evidence regarding the modern trade secret practices of the teams in the four major North American professional sports leagues. Based on the results of a first-of-its-kind survey conducted in the spring of 2016 of the general counsels of teams in the four major leagues, the article sheds light on both the types of information subjected to trade secret assertion by these firms, as well as the methods they are using to safeguard their data. In the process, the article examines the implications of these survey results for the professional sports industry, while also identifying potential new lines of inquiry for future trade secret research.

Any thoughts or feedback on the article would be much appreciated!

Posted By : Nathaniel Grow

FTC's Letter to Customers of DraftKing and FanDuel

Message posted on : 2017-01-30 - 13:28:00

As part of its investigation into the proposed merger between DraftKings and FanDuel, the Federal Trade Commission (the reviewing agency) has started to contact customers of both companies in order to, as the agency put it,"understand the market from customers' perspectives." Here is the full text of the e-mailed letter sent to one such customer earlier this morning (with names redacted):
I am a staff attorney at the United States Federal Trade Commission. The FTC is conducting a non-public investigation of the proposed merger between DraftKings and FanDuel. We are contacting you because it is our understanding that you may be a customer of either DraftKings or FanDuel. It is a routine part of most FTC merger investigations for staff attorneys to reach out to customers of the merging parties to understand the market from customers' perspectives. We would appreciate the opportunity to speak with you about your experience as a daily fantasy sports customer. Please reply to this email or call me at the number below so we can set up a time to talk over the phone. I look forward to hearing from you.
DraftKings and FanDuel announced their intent to merge on November 18, 2016, and the earliest reports of the FTC's involvement surfaced on December 6, 2016. The fact that the FTC is reaching out to customers, while newsworthy given the lack of any updates about the status of the merger, may very well be standard protocol in these types of investigations. But we are now nearly two months into the FTC's investigation, and the timing of these communications suggests that it may be quite some time before the investigation wraps up and the FTC makes a recommendation one way or the other.

Posted By : Daniel Wallach

NFL Loses Key Concussion Ruling -- First Loss for Leagues

Message posted on : 2017-01-29 - 10:30:00

Posted By : Daniel Wallach

The Role of Race on the "Pay for Play" Debate

Message posted on : 2017-01-26 - 13:55:00

A fascinating article was just published in the Political Research Quarterly titled 'Prejudice or Principled Conservatism? Racial Resentment and White Opinion toward Paying College Athletes' by Kevin Wallsten, Tatishe Nteta, Lauren McCarthy and Melinda Tarsi.

One of the undercurrents in the debate over paying college athletes has been one of race. The sports of football and basketball generate the substantial portion of revenue for college athletics, and African-American men are dramatically overrepresented in these sports on college campuses relative to the overall collegiate population.

Most arguments to alter NCAA rules governing compensation to college athletes in revenue producing sports have centered on antitrust law or free market economic market theory. Of note however, Taylor Branch argued that race has played a role in delaying the fight to change the NCAA's definition of amateurism in his seminal article 'The Shame of College Sports' The Atlantic in 2011.

This new article concludes, 'prejudice against African Americans determines how whites feel about increasing compensation for college athletes' and that in every survey to date, 'African Americans have expressed higher levels of support than whites for paying college athletes.'

Regardless of your stance on the 'pay for play' debate, it is interesting to note the role all of our predispositions towards race may have on this movement.

You may read the abstract of this article here, and download it here.

Posted By : Warren K. Zola

Look for More States to Enact "Stand-By" Sports Betting Legislation

Message posted on : 2017-01-25 - 18:18:00

New Jersey's sports betting prospects received a significant boost last week when the United States Supreme Court--instead of granting or denying the State's petitions (as had been expected)--issued an Order calling for the views of the United States Solicitor General. This type of Order--commonly referred as a CVSG--greatly enhances New Jersey's chances for Supreme Court review, particularly since the new Solicitor General will be nominated by President Trump, a former casino owner who has, in the past, called for expanded legal sports betting. The Solicitor General's recommendation carries significant weight with the Supreme Court, and, historically, is followed around 80 percent of the time. More recent analytics reveal that the "follow" rate by SCOTUS is 100 percent (entailing the last 20 CVSGs, admittedly a small sample size, but still revealing). With the Solicitor General's response to the CVSG in the New Jersey expected in May 2017 (to enable the Supreme Court make a cert determination by the end of the current term in June), there is increasing optimism that the Supreme Court will grant certiorari and hear oral arguments later this year, with a decision likely a few months after that.

Given this recent turn of events, the prospect of the Professional and Amateur Sports Protection Act ("PASPA") being overturned on constitutional grounds is no longer far-fetched. Nor is it only a "way-down-the-road" possibility. We could have a Supreme Court decision--on the merits--possibly by early next year, hinging largely on the Solicitor General's upcoming recommendation. And if PASPA is overturned, then that would obviously clear the decks for New Jersey to have sports betting right away since there is a state law already in place that would allow it.

But what about other states? Most states have been content to wait on the sideline for the New Jersey case to play out. To my knowledge, only New York has a law on the books that would allow sports betting in the event PASPA is repealed by Congress or overturned by a federal court. The New York statute, passed in 2013 as part of the broader authorization for commercial casinos, provides that "[n]o gaming facility may conduct sports wagering until such time as there has been a change in the federal law authorizing such activity or on ruling of a court of competent jurisdiction that such activity is lawful." (N.Y. Racing, Pari-Mutuel Wagering and Breeding Law, s 1367 (2013)). If either contingency were to occur (with the focus here on the latter one), the New York statute would allow any of New York's licensed casinos to immediately apply for a license to operate a "sports pool." (Id.). While there is some question as to whether a constitutional amendment would still be necessary, New York is at least one of the few states that appears poised to immediately benefit from any change in PASPA.

But other states may be bracing for that inevitability as well.

Posted By : Daniel Wallach

Michigan Introduces Sports Betting Bill; Third State This Year

Message posted on : 2017-01-19 - 08:55:00

New Jersey's quest to overturn the federal ban on state-sanctioned sports betting had largely been a solo effort for the past four-and-one-half years. States that were interested in having legal sports betting within their borders (and there were many) were largely content to remain on the sidelines and let New Jersey carry the water--and, of course, all of the legal fees--on the issue and, hopefully, one day reap the dividends of a New Jersey victory. That eventuality may still come to pass, especially as it appears that the Supreme Court is inching towards taking a look at PASPA.

But several states are no longer content to wait it out, and have recently advanced legislation to legalize sports betting. Earlier this month, South Carolina and New York lawmakers introduced bills that would legalize sports betting through an amendment to that state's constitution (which would be accomplished through a voter referendum), although one influential New York lawmaker, Assemblyman J. Gary Pretlow (the Chair of the Assembly Racing and Wagering Committee), maintains that a constitutional amendment is not necessary in New York and plans on introducing his own bill (sans constitutional amendment) later this month.

The latest state to crash the party is Michigan. On Wednesday, State Rep. Robert Kosowksi (D-Westland) introduced House Bill No. 406, which seeks to amend the Michigan Gaming Control and Revenue Act to allow the holder of any state-issued casino license "to accept wagers on sporting events." The bill also seeks to empower the state gaming control board to promulgate rules to regulate the conduct of sports betting." (A link to the bill can be found here). The bill seeks to legalize sports betting in Michigan through a vote of "qualified electors of this state at the next general election after the effective date of this amendatory act." In other words, a voter referendum, similar to the South Carolina and New York measures. But with a slight variation. The Michigan bill proposes two referenda: a statewide vote and a vote by electors in the township or city where the sports betting would take place. Under the bill, which was referred yesterday to the Committee on Regulatory Reform, the proposed constitutional amendment to allow sports betting in Michigan would take effect "10 days after the date of the official declaration of the [statewide and local] vote."

The reason why Michigan lawmakers would propose a voter referendum--rather than just legalize it themselves through a straight-up legislative enactment--is because of the state constitutional prohibition against gambling, which would require an amendment to the state constitution to create exceptions to that prohibition, such as for sports gambling. That's one of the reasons why iGaming faces such a uphill battle in Michigan. But there may be more of an appetite for legal sports betting in Michigan. The stronger opposition is more likely to come from forces outside the state, such as the four major professional sports leagues (NFL, NBA, MLB, and NHL) and the NCAA, which would assuredly bring a federal court lawsuit--invoking PASPA--to block the implementation of any state-sanctioned sports betting scheme.

Regardless of whether this new measure is ultimately approved by the state legislature (and by Michigan voters), we are finally seeing aggressive action from statehouses on the issue of sports betting. The New Year is only 19 days old, and we already have three new bills to legalize sports betting, with more likely on the way soon. This will be a fascinating development to watch unfold, especially against the backdrop of New Jersey's efforts to overturn PASPA in court (the Supreme Court), the Donald Trump "wild card," and the American Gaming Association's ongoing lobbying efforts before Congress. 2017 is shaping up to be a dynamic year on the sports betting legalization front, with multiple points of entry and plenty of intrigue and drama.

Posted By : Daniel Wallach

The Latest CVSG Analytics for NJ Sports Betting (2016-17 Version)

Message posted on : 2017-01-18 - 19:50:00

The "death defying" New Jersey sports betting case--having secured the rare daily double of a rehearing en banc grant and a CVSG ("call for the views of the Solicitor General")--has proven to be the ultimate zombie of sports law cases: just when you think it's dead and buried, it is resurrected against improbable odds. But how much have those odds improved as a result of the Supreme Court's latest action calling for the views of the Solicitor General? A lot. The Solicitor General's recommendation carries "significant weight" with the Supreme Court, and, historically, it is followed around 80 percent of the time, according a 2009 George Mason Law Review article penned by now D.C. Circuit Court Judge Patricia A. Mallett. But that article is nearly eight years old, and the Court's composition has changed since then (e.g., Scalia, Kagan, Sotomayor), not to mention that there have been five different acting solicitor generals since 2009. Perhaps a more relevant--and less dated--statistical barometer of New Jersey's chances can be gleaned through an analysis of the more recent cases involving CVSGs.

I decided to do some independent research. With the help of, and, of course, the indispensable SCOTUSBlog, I delved into the case histories of the 20 most recent cases (since the beginning of 2016) in which the Supreme Court acted on a cert petition following a Solicitor General response to a CVSG. (Note--there are 17 additional cases in which a CVSG has been issued during that time-period, but they cannot be meaningfully assessed since either the SG has yet to respond or the Supreme Court has not acted on the cert petition. Most involve CVSG's issued within the last three months). So review is limited to these 20 cases, admittedly a small (albeit, more recent) sample size.

And the results are surprising. Of the 20 most recent cases in which a CVSG has been issued and the SG filed a response brief (with action ultimately being taken), the Supreme Court followed the SG's recommendation one-hundred percent (100%) of the time. That's 20 out of 20 cases. Certiorari was granted in ten of those cases, and denied in the other ten. In other words, there has not been a single instance since the beginning of 2016 (covering 20 CVSG's) in which the Supreme Court has not followed the recommendation of the Solicitor General. Stated another way, Donald Trump could very well be deciding the future of New Jersey sports betting with his imminent solicitor general appointment. Maybe Chris Christie wants the job.

-- Daniel Wallach

Posted By : Daniel Wallach

The NJ Sports Betting "Invitational": My Quick Thoughts on Today's SCOTUS Order

Message posted on : 2017-01-17 - 12:08:00

For the case that has had nearly everythinge.g., three divided circuit opinions in succession and the rarity of en banc rehearingwe shouldn't have been all that shocked by the latest twist and turn in the New Jersey sports betting case. The "invitation" to the Solicitor General can only be viewed as a positive for New Jersey's chances. After all, if this case were not 'cert-worthy,' the Supreme Court would have just summarily denied the petition without even bothering to ask for the Solicitor General's position. This 'invitation' may very well signify that one or more of the Justices believe the Third Circuit went too far in Christie II. Contrary to popular belief, this case was never a ‘replay' of Christie Ithe 'federalism' concerns raised in the later case are far more pronounced. In the Christie I case, New Jersey's anti-commandeering argument was directed to PASPA's 'negative command' forbidding states from licensing or authorizing sports wagering. That was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of 'affirmative activity,' such as taking title to radioactive waste or performing background checks on prospective handgun purchasers. But this time around, New Jersey's commandeering argument addresses the flip-side of PASPA: its 'affirmative requirement' compelling states to prohibit sports wagering (and thus blocking states from from "repealing" their sports betting laws). This view of PASPA fits more neatly into the Supreme Court's anti-commandeering jurisprudence, and, as such, New Jersey's prospects for Supreme Court review are arguably enhanced. For the first time, we had a federal appeals court preventing a state from 'repealing' its own laws, after initially opining that a repeal would not violate PASPA. That represents a much greater encroachment on state sovereignty.

I think we may have actually underestimated Donald Trump's impact on sports betting. Much of the recent speculation centered on how he could push for federal legislation, a process that could take up to several years to accomplish. But now, Donald Trump's impact on the sports betting legalization debate will be immediateand could be decisive. His choice of U.S. Solicitor General could end up tipping the scales in favor of a cert. grant, particularly if the new SG (whomever that may be) recommends that the issue be resolved by the Supreme Court. This is why the Solicitor General is often jokingly (and sometimes-not-so jokingly) referred to as the 'Tenth Justice.' This is probably the most important brief that will be filed in the nearly five-year history of the New Jersey sports betting litigation. The Solicitor General's brief will likely include a recommendation as to whether certiorari should be granted or denied, and, ultimately, who should win the case on the merits. If the SG recommends that cert be granted, the odds for New Jersey improve considerably, especially if the SG also questions the constitutionality of PASPA or asserts that the New Jersey partial repealer does not violate the federal law. It is worth noting that nearly three years ago, then-Solicitor General Verrilli submitted a brief to the Supreme Court in which he asserted that New Jersey is free to repeal its sports betting laws 'in whole or in part' without violating PASPA. While the DOJ tried to wiggle out of this statement during the Third Circuit oral argument earlier this year, the Supreme Court's invitation presents an opening for the new SG to ‘double-down' on that prior statement by making it an unequivocal view. Trump will have the ability to name a solicitor general who espouses this view. If Donald Trump feels strongly enough that sports betting should be legal and expanded nationally, he now has three immediate vehicles for accomplishing this: (1) his SG appointment; (2) his Attorney General appointment; and (3) his Supreme Court nominee. All three appointments could have significant ramifications for sports betting: the Solicitor General, in recommending that cert be granted; the Attorney General, in electing not to bring PASPA actions against state governments that legalize betting on sporting events not involving the five major sports leagues and the current plaintiffs in the case; and the new SCOTUS Justice, who could be one of the four ‘cert' votes, thereby enhancing the prospects for review, and then ultimately siding with New Jersey on the merits. If Donald Trump is truly ‘dialed' in on this issue, he might just have the ability to influence the sports betting legalization debate in ways that were not even contemplated until now.

Posted By : Daniel Wallach

Decision Day on New Jersey Sports Betting: What Are The Chances?

Message posted on : 2017-01-15 - 00:14:00

On Tuesday at 9:30 am (EST), the United States Supreme Court will issue its "Orders List" announcing the fate of the various petitions which the Court considered at its weekly conference on Friday. (A link to the court website page containing the weekly orders can be found here). For proponents of New Jersey's years-long effort to legalize sports betting, Tuesday is the moment of truth, as the fate of the State's two petitions (one filed by Governor Christie and several other state officials, and the other filed by the New Jersey Thoroughbred Horsemen's Association) will likely become known, since those two were among the approximately 132(!) petitions that were on the slate for Friday's conference. If New Jersey's petitions are granted--and the odds are stacked heavily against it since the Supreme Court grants review in fewer than 2% of cases (although that number is skewed by the abundance of petitions filed by unrepresented parties, prisoners, and the vast array of litigants who truly have no shot at obtaining certiorari review)--it could be a key turning point in the ongoing debate to legalize sports betting. If review is granted, it would mean that four out of eight Justices (the ninth seat has been vacant since the death of Antonin Scalia) voted to hear the case since the Supreme Court usually follows the so-called "Rule of Four" in deciding whether to grant certiorari review. The case would then proceed to additional merits briefing (i.e., new briefs) plus an oral argument during the current Supreme Court term (which ends in June).

Despite the long odds, I believe that New Jersey has a much stronger chance at securing certiorari review than in 2014, when the Supreme Court declined to hear the Christie I case. The "cert-worthiness" of the New Jersey sports betting case actually has little to do with the policy arguments surrounding sports betting, and more to do with constitutional law principles. In both cases, New Jersey challenged the constitutionality of PASPA, arguing that it violates principles of federalism, and, in particular, the Tenth Amendment 'anti-commandeering' doctrine, which forbids the federal government from commanding the states to implement federal laws or policies that would interfere with state sovereignty. In this vein, New Jersey argued that PASPA unconstitutionally commandeers the States in two ways: (1) through its 'negative command' prohibiting a State from enacting any law authorizing or licensing sports betting, and (2) through its implicit 'affirmative command' requiring a State to maintain existing (but unwanted) sports betting prohibitions under state law.

Where the two cases differ is in how the commandeering argument was applied. In the Christie I case, New Jersey's anti-commandeering argument was directed to PASPA's 'negative command' forbidding states from licensing or authorizing sports wagering. That was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of 'affirmative activity,' such as taking title to radioactive waste (as in the New York case) or performing background checks on prospective handgun purchasers (as in the Printz case). But this time around, New Jersey's commandeering argument addresses the flip-side of PASPA: its 'affirmative requirement' compelling states to prohibit sports wagering (which would prevent them from repealing their sports betting laws). This view of PASPA fits more neatly into the Supreme Court's commandeering jurisprudence, and, as such, New Jersey's prospects for Supreme Court review are arguably enhanced.

The Third Circuit's "bait and switch" on the availability of a "partial repeal" may also enhance the cert-worthiness of Christie II. In the Christie I case, the Third Circuit majority rejected New Jersey's argument that 'repealing' a statute barring sports betting would be equivalent to 'authorizing' the activity (which would be barred by PASPA). The majority explained that it would be a 'false equivalence' to consider a 'repeal' to be the same as an 'authoriz[ation] by law' because, following a repeal of prohibitions, '[t]he right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people.' 'In short,' the majority concluded, New Jersey's attempt to read into PASPA a requirement that the states must 'affirmatively keep a ban on sports gambling on their books' rests on a 'false equivalence' between 'repeal' and 'authorized' and reads the term 'by law' out of the federal statute, 'ignoring the fundamental canon that, as between two statutory constructions, we ought to prefer one that does not raise a series of constitutional problems.'

But to save PASPA from any commandeering defect, the Christie I majority gave PASPA a 'savings interpretation' that would afford states considerable leeway in crafting their own policy on sports betting, including by 'repealing' any existing laws. The majority explained that PASPA's 'straightforward prohibition' on state-sponsored sports betting can be recast as providing states with 'two choices' that 'leave much room for states to make their own policy.' 'On the one hand,' the majority declared, 'a state may repeal its sports wagering ban, a move that will result in the expenditure of no resources or effort by any state official.' 'On the other hand,' the majority continued, 'a state may choose to keep a complete ban on sports wagering, but it is up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be.' (emphasis added). The majority acknowledged that 'these are not easy choices,' noting that Congress 'may have suspected that most states would choose to keep an actual prohibition on sports gambling on the books, rather than rather than permit the activity to go unregulated.' 'But the fact that Congress gave the states a hard or tempting choice does not mean that they were given no choice at all, or that the choices are otherwise unconstitutional,' the majority reasoned.

Relying upon the Third Circuit's majority opinionwhich left it to a State to 'decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be'and taking the Solicitor General at his word that a State may repeal its sports wagering ban 'in part,' New Jersey enacted a partial repeal law on October 17, 2014 (the '2014 Law'). The 2014 Law partially repealed all state laws and regulations prohibiting sports wagering, but only in certain circumstances. Specifically, the 2014 Law repealed provisions of New Jersey law governing criminal penalties for gambling, civil penalties for gambling, and other provisions governing wagering at casinos and racetracks, as well as 'any rules and regulations that may require or authorize any State agency to license, authorize, permit, or otherwise take action to allow any person' to engage in sports wagering.

But in Christie II, the Third Circuit disavowed its prior declaration that a "repeal" of sports betting prohibitions would not violate PASPA. It rejected New Jersey's argumentbased on the 'false equivalence' language in the Christie I opinionthat a 'repeal' removing sports betting prohibitions is not an 'affirmative authorization.' Recall that in Christie I, the majority explained that states had two choices under PASPA: maintaining sports betting prohibitions or repealing them. The Christie II majority receded from that earlier statement, declaring that '[t]o the extent that in Christie I we took the position that a repeal cannot constitute an authorization, we now reject that reasoning." The majority characterized its discussion in Christie I of states having 'two choices' as mere 'dicta' (meaning not essential to the court's decision).

The Christie II majority's about-face on the availability of a "partial repeal"--and its refusal to pinpoint the line of demarcation at which a permissible partial repeal becomes an impermissible"authorization"--heightens the State's chances for securing certiorari review in my view. As highlighted by the New Jersey petitions (and the amicus briefs), the Third Circuit's new interpretation of PASPA presents a much greater threat to state sovereignty (a key federalism notion) than the Christie I decision because it can be seen as preventing a state from repealingits own laws (with myriad examples highlighted in the State's petitions), and, further, leaves the state without any meaningful (or identifiable) choices. Remember that to "save" PASPA from a commandeering defect, the Christie I majority emphasized that states were afforded a "choice" under PASPA: to maintain their state law prohibitions against sports betting or to repeal them. The Christie II decision all but eviscerates this choice.

The dissenting opinion of Judge Thomas Vanaskie highlights this "flip-flop" by the Third Circuit majority. Judge Vanaskie criticized as 'untenable' the majority's 'shifting line approach' to a state's exercise of its sovereign authority. Judge Vanaskie observed that after Christie I, a state like New Jersey 'at least [had] the choice' of either: (1) 'repealing, in whole or in part, existing bans on gambling on sporting events,' or (2) 'keep[ing] a complete ban on sports gambling.' Such a choice, he explained, was essential to upholding PASPA's constitutionality in Christie I. By contrast, he wrote, the majority's decision in Christie II 'does not leave a state ‘much room' at all.' Following Christie II, states 'must maintain an anti-sports wagering scheme' by 'leav[ing] gambling prohibitions on the books to regulate their citizens.' Judge Vanaskie opined that this essentially 'leaves the States with no choice,' adding that '[t]he anti-commandeering doctrine, essential to protect State sovereignty, prohibits Congress from compelling States to prohibit such private activity.'

Judge Vanaskie was also unpersuaded by the majority's assertion that some partial repeal options 'may pass muster' (such as the example involving small wagers between friends and family), noting that the majority 'does not explain why all partial repeals are not created equal or explain what distinguishes the 2014 Law from those partial repeals that pass muster.' As Judge Vanaskie explained, '[t]he bedrock principle of federalism that Congress may not compel the States to require or prohibit certain activities cannot be evaded by the false assertion that PASPA affords the States some undefined options when it comes to sports wagering.' Contending that the majority opinion 'excised' the distinction between a 'repeal' and an 'authorization,' Judge Vanaskie declared that it is 'clear' that no repeal of any kind will evade PASPA's command that no State 'shall . . . authorize by law sports gambling.' Such commands, Judge Vanaskie concluded, 'are fundamentally incompatible with our constitutional system of dual sovereignty.'

Judge Vanaskie's dissenting opinion--and the petitions filed by the New Jersey parties (backed by amicus briefs filed by five states, two conservative think-tanks, the America Gaming Association, and Sports Law Blog contributor Professor Ryan Rodenberg)--highlight the key federalism concerns at the core of Christie II. As the recent filings point out, the Third Circuit's "shifting line" approach to state repeal laws in Christie II presents a much greater threat to state sovereignty (in potentially a wide array of policy-making initiatives going beyond sports betting) than Christie I ever did. Will this be enough to push Christie II over the SCOTUS "cert-worthy" line? Tune in on Tuesday to find out.

Posted By : Daniel Wallach

The Battle of New York (DFS) is Back On!

Message posted on : 2017-01-12 - 23:34:00

The recent enactment of New York's Interactive Fantasy Sports Law supposedly settled the long-simmering debate over the legality of daily fantasy sports ("DFS") in New York. But a new lawsuit could potentially reignite that debate. In October, a quartet of New York residents--backed by the anti-gambling group aptly named "Stop Predatory Gambling"--filed a lawsuit in Albany County Supreme Court challenging the New York DFS Law on constitutional grounds. The thrust of the lawsuit is that the New York Legislature and Governor Andrew Cuomo impermissibly expanded gambling in New York in violation of Article I, Section 9 of the New York State Constitution. In short, Article I, Section 9 prohibits all forms of gambling unless specifically exempted through a constitutional amendment. It reflects New York's longstanding (but apparently elastic) public policy against gambling. In order to amend the New York Constitution to allow any new form of gambling, two successive sessions of state legislative approval are required, followed by a voter referendum. In short, the plaintiffs asserted that the Legislature exceeded its powers in passing the DFS law without a voter referendum, which is a time-consuming process that would take at least two years to accomplish. The lawsuit seeks to invalidate the new DFS law on that basis, and thereby force the issue to a voter referendum. The downside risk to the fantasy sports industry is that if the plaintiffs prevail (and there is a decent chance that they will), it could shelve fantasy sports in New York until at least 2019, if not longer.

Although filed in October to great fanfare (and a press conference by the lawyers!), the lawsuit had been dormant for the past three months while the New York Attorney General's Office (which ironically is defending the state here) requested and received several extensions of time to respond to the complaint. On January 11th, the AG's Office finally responded by filing a motion to dismiss the complaint. (A copy of the memorandum of law can be found here). A hearing on the motion is scheduled for March 24th in Albany. The plaintiffs will likely file a detailed response to the motion before the end of February, and, quite possibly, could also move for summary judgment since purely legal issues are involved that would probably not require any significant fact-finding.

The crux of the AG's motion is that the Legislature enjoys considerable discretion to determine what is--and what is not--"gambling" in New York. The AG's motion asserts that the New York Legislature has "latitude to determine what conduct constitutes (and does not constitute) impermissible gambling in New York," and that such determination "is ultimately a policy choice that lies within the province of the Legislature to address." I believe that this argument might be flawed. While the Legislature can certainly enact 'appropriate laws' in furtherance of the constitutional prohibition against gambling as a valid exercise of its police power, see Harris v. Econ. Opportunity Comm'n of Nassau Cty., 171 A.D.2d 223, 227, 575 N.Y.S.2d 672, 674-75 (2d Dep't 1991), holding modified by Dalton v. Pataki, 11 A.D.2d 62, 780 N.Y.S.2d 47 (2d Dep't 2004), it is another thing entirely to legalize a game or contest that has been determined by New York's highest-ranking law enforcement official (and preliminary by one lower court) to constitute illegal gambling under New York's Penal Law, thereby expanding legal gambling in New York State without a constitutional amendment. In other words, while the Legislature can certainly expand the definition of 'gambling' to bring a game, device or contest within the statutory prohibition, that does not, a fortiori, mean that the legislature is also free to expand legal gambling outside of the mandatory constitutional amendment process.

In my opinion, the entire lawsuit rises or falls on this argument. If the Attorney General is wrong (and I believe that he may be), it could shelve fantasy sports in New York for at least two years while the constitutional referendum process plays out. Were that scenario to play out in this fashion, legislators (and DFS lobbyists) might ultimately come to regret choosing the most expedient, albeit risky, path to legalization over fidelity and adherence to the state constitution.

The most surprising aspect of the AG Office's motion, however, was its abject failure to explain (or even address) any of the AG's prior statements--advanced in court papers before Justice Mendez--that daily fantasy sports contests constituted impermissible gambling in violation of New York Penal Law Section 225.00 and Article I of the New York State Constitution. Think about it. The same AG who forcefully argued that DFS is illegal gambling under the state constitution is now advancing the diametrically opposite position that such contests do not run afoul of the constitution. That is a tricky balancing act. At the very least, the AG should have addressed his prior statements and explained why they do not apply anymore. His failure to tackle this issue leaves him (and the industry) exposed on the plaintiff's reply beef. Expect the plaintiffs' lawyer to exploit this omission in his opposition papers filed later next month. Having the AG--who once took the position that DFS is "gambling'--act as the "defender" of the new DFS law presents a troubling optic for the industry, and, potentially, for the court. For this reason, I would have expected DraftKings and FanDuel (the real parties in interest) to intervene in the lawsuit and present their own arguments unencumbered by any prior inconsistent statements. To date, however, the two companies have not filed a motion to intervene, leaving the fate of New York's fantasy sports law in the conflicted hands of the New York Attorney General. From the plaintiffs' perspective, this may be the best possible scenario.

This lawsuit will likely play out over several years, and could ultimately be decided by New York's highest court--the New York Court of Appeal. But at first blush, it would appear that the plaintiffs have a strong case based on the arguments advanced (or not advanced) by the New York Attorney General. A decision on the AG's motion to dismiss--and potentially on the plaintiff's motion for summary judgment (if one is filed)--is expected by the late Spring, several weeks after the March 24th oral argument. Regardless of who prevails in the lower court, expect an immediate appeal. While this case may have been dormant for several months, it will become active throughout 2017 and could dictate the future of fantasy sports in New York, By no means is it a slam dunk for the State.

If you would like a deeper dive on these issues, I previewed the lawsuit here back in June, several months before it was actually filed.

Posted By : Daniel Wallach

What's New in Sports Law for 2017

Message posted on : 2017-01-12 - 11:47:00

Happy New Year, friends.

2016 was an exciting year in sports law. We saw the Supreme Court reject cert in O'Bannon v. NCAA, more legal posturing over the NFL discipline rules, new collective bargaining agreements in MLB and the NBA, and law school graduate, Theo Epstein, lead the Chicago Cubs to a World Series championship.

2017 figures to be just as exciting. Over at FORBES, I have posted two articles that may help us to think about the sports law issues that lie ahead in 2017.
First, here is my discussion of what I consider to be the top 5 sports law stories to watch in 2017.
Also, for readers who are particularly interested in fantasy sports law issues, here is my top 5 stories to watch, particularly on fantasy sports and the law.
May the new year bring health and happiness to you, your families, and the entire sports law community.

Posted By : Marc Edelman

Conduct Detrimental: The Sports Law Podcast

Message posted on : 2016-12-30 - 07:27:00

As 2016 winds down, I want to call your attention to a new sports law podcast created by co-hosts Daniel Wallach and Daniel Werly--Conduct Detrimental. Noted sports lawyers, Wallach is a well known contributor here at The Sports Law Blog and Werly is a friend of the SLB and the man behind The White Bronco, another wonderful blog discussing current sports law issues.

'Conduct Detrimental: The Sports Law Podcast' is the creation of the two Dans, who address the latest legal controversies on and off the field. I encourage you to join the two Dans for a hard-hitting look at the legal battles that are shaping professional and collegiate sports. From Deflategate to daily fantasy sports, this first-of-a-kind podcast breaks down the latest court cases and features exclusive interviews with an array of industry-leading guests.

Full disclosure, I was a recent guest on this podcast as Dan, Dan, and I discussed the collision between amateurism and commercialism in college sports. Other recent podcasts include the NFL's handling of domestic violence cases, Deflategate (of course), and the Derrick Rose civil trial. Recent guests have also included Diana Moskovitz, A.J. Perez, and Julia Marsh . Upcoming episodes will feature sports law stalwarts: Tulane Law School and our own Gabe Feldman, Paul Anderson from Marquette Law School, and Ian Gunn, another fellow Tulane Law School alum and contributor at Sports Esquires--yet another sports law blog.

The bottom line is that I encourage you to download Conduct Detrimental podcasts either at iTunes or The White Bronco. For information on future episodes, follow Conduct Detrimental on Twitter at @ConductPod.

Enjoy the podcasts and Happy New Year to all!

Posted By : Warren K. Zola

Question for NFL fans (especially those with officiating experience)

Message posted on : 2016-12-04 - 13:56:00

I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.

Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."

So why wasn't that rule invoked to give the Bengals a chance at a free kick (which, trailing by 5, they would have had to return for a touchdown to win). Why wasn't that rule applicable here?

Posted By : Howard Wasserman

Sizing Up Mississippi as the Next Likely PASPA Challenger

Message posted on : 2016-11-28 - 22:26:00

Recent speculation has started to center on Mississippi being the next state that will step up to the plate to challenge the federal ban on state-sponsored sports betting. Over the weekend, the Mississippi Sun Herald published an editorial titled "States should control sports betting," which supported Mississippi Attorney General Jim Hood's decision to sign on to an amicus brief filed by five states (West Virginia, Wisconsin, Louisiana, Arizona, and Mississippi) backing New Jersey's efforts to challenge the constitutionality of the Professional and Amateur Sports Protection Act ("PASPA"). New Jersey is asking the U.S. Supreme Court to review a recent federal appeals court decision blocking New Jersey from implementing a state law that would have permitted sports betting to take place at the State's casinos and racetracks. New Jersey, backed by the amici states and several other groups (including the American Gaming Association), argues that PASPA violates the Tenth Amendment's anti-commandeering principle by requiring states to maintain unwanted state-law prohibitions against sports betting and by preventing states from repealing their own laws on sports betting (even in part). Mississippi's backing of New Jersey's efforts came several seeks after Mississippi's newly-appointed Commissioner of Revenue, Herb Frierson, introduced a list of tax reform suggestions that were highlighted by his statement that legalized sports betting could bring an additional $100 million into the state's coffers annually. These recent events have served to heighten speculation that Mississippi will be the next state to challenge PASPA in court.

Such speculation is well-founded. But it is far from a recent development. Over the past year, I have frequently touted Mississippi as the state most likely to take the baton from New Jersey. In a recent Deadspin piece titled "How To Legalize Sports Betting," I identified Mississippi as the "state to watch" on the PASPA front. I wrote that a number of states loomed as potential PASPA challengers, but that "Mississippi, in particular, is worth watching. With 28 commercial casinos, but declining gaming revenues, the Magnolia State may represent the perfect storm for a successful PASPA challenge." I highlighted the fact that the Fifth Circuit (which covers Mississippi) is among the most conservative federal appeals courts in the country, and, as such, might be more receptive to a states' rights argument for overturning PASPA. And during my appearances at gaming conferences (including the Southern Gaming Summit in Biloxi, Mississippi), and, of course, on Twitter (see here and here), I have pointed to Mississippi as the state most likely to challenge PASPA next. There are many reasons for my belief. Suffice it to say that Mississippi's path to sports betting legalization has been at least several years in the making. As far back as March 2014, the Mississippi State Legislature commissioned a task force to study the possibility of legalizing online gaming and sports betting. The state task force produced a report in December 2014 which summarized the New Jersey sports betting litigation and posited that if New Jersey were to succeed in court, "Mississippi (and other states) may be able to fall in line and take similar action." However, the task report cautioned that it "would seem prudent to take a wait and see approach at this point." Shortly thereafter, a Mississippi lawmaker, Chuck Espy (a former Democratic member of the state House of Representatives), introduced a bill (HB 806) that would have permitted the state's casinos to offer sports betting as soon as the Mississippi Gaming Commission determined that it became "permissible under federal law." Unfortunately, HB 806 never got out of committee, and has not been re-introduced.

But, perhaps, most importantly, Mississippi's longstanding interest in legalized sports betting is based on urgent financial considerations. In that regard, it shares many characteristics with New Jersey. Like New Jersey, Mississippi's once-thriving gaming industry has suffered a steep and steady decline in gross revenues over the past decade, and, much like New Jersey, it has experienced its share of casino closures too (e.g., Harrah's Tunica Casino). To put it in perspective, in 2008, Mississippi's casino industry generated approximately $2.7 billion in gross gaming revenues. Since 2008, however, Mississippi's casino gross gaming revenues have steadily declined each year, reaching a nadir of approximately $2.068 billion in gross revenues in 2014, a drop-off of more than twenty percent (20%) from just six years earlier (although it should be noted that gaming revenues have inched up slightly over the last two years, but still far off of the 2008-09 levels). The effects of such a decline are far-reaching: the state collects less tax revenues ($250 million in 2015, as contrasted with nearly $312 million in 2009), and Mississippi's tourism industry, which is so heavily dependent on its casino industry, suffers as well. If sports betting were to become legal in Mississippi, this downward trend would obviously be reversed. This more than anything else explains the state's renewed interest in sports betting.

But even going beyond financial reasons and the potential forum advantages of the Fifth Circuit, Mississippi may possess an important strategic advantage in any prospective PASPA lawsuit: it is one of only a handful of states to have legalized fantasy sports. The recent state measures to legalize fantasy sports may provide state challengers with a creative new argument for toppling PASPA. While PASPA is commonly understood to prohibit 'state-authorized' betting or wagering schemes on the outcomes of professional and amateur sporting events, it also prohibits state-authorized betting or wagering schemes that are based 'on one or more performances of athletes in such games.' This language arguably encompasses state legislation authorizing daily fantasy sports contests, which are tied to the 'performances' of athletes. A plausible argument can be made that the sports leagues are 'selectively enforcing' PASPA by opposing state efforts to legalize traditional sports betting, as in the case of New Jersey, but taking no action against those states which have authorized fantasy sports contests (which presumably also violates PASPA). Such an argument could serve to undermine the leagues' assertion in future cases that they would be 'irreparably harmed' by expanded legal sports betting when they have neither suffered nor asserted any such harm from other supposed violations of PASPA. Since the leagues would need to demonstrate irreparable harm in order to obtain a preliminary injunction (as that is one of the essential elements that must be proven), the ability of future state challengers to rebut that element through evidence of the leagues' selective enforcement of PASPA could be the key to avoiding a preliminary injunction in the early stages of a case. This would be a significant development, as it could enable a state challenger to offer sports betting throughout the pendency of a case, including any and all appeals, without having to wait for the final resolution of the lawsuit on the merits. While such an argument is not guaranteed to succeed, it provides another possible tool in a state's legal arsenal to topple PAPSA.

Each of these factors points to Mississippi being the next state most likely to challenge PASPA in court. In my view, it's a matter of when, not if.

-- Daniel Wallach

Posted By : Daniel Wallach

Nevada's eSports Betting Scheme Not a Gamble Under PASPA

Message posted on : 2016-11-26 - 16:37:00

The inevitable partnership between eSports and the U.S. casino industry cleared another major hurdle earlier this month when the Nevada Gaming Control Boardthe state agency which oversees the regulation and licensing of Nevada's gaming industryapproved William Hill's and the Downtown Grand Hotel & Casino's application for a license to accept wagers on eSports tournaments, starting with the League of Legends Tournament at IEM Oakland. This represents the first time that wagering on eSports has been legally offered in the United States, and, given the trajectory of eSports, it certainly won't be the last (especially in Nevada, where sports betting is legal and unencumbered by the Professional and Amateur Sports Protection Act ['PASPA'], the federal law which prevents states from licensing or authorizing sports wagering schemes).

Nevada is uniquely positioned to become the eSports betting capital of the United States, largely due to PASPA. Although PASPA prohibits States from authorizing or licensing betting or wagering schemes based, directly or indirectly, on one or more 'competitive games' in which 'amateur or professional athletes' participate, it also contains several exemptions from its application, the most important of which are two 'grandfathering' provisions (28 U.S.C. §§ 3704(a)(1)-(2)) which preserve preexisting sports wagering schemes in Nevada, Delaware, Oregon, Montana, and 'possibly a few other states.' (Senate Report 102-248, 102nd Cong., 1st Sess. 4, reprinted in 1992 U.S.C.C.A.N. 3553). But of the four states presently known to qualify for either of the exemptions, only Nevada has the ability to expand its sports betting offerings without limitation by virtue of § 3704(a)(2), whereas Delaware, Oregon and Montana can only offer those sports betting schemes that were actually in effect between 1976 and 1990 by virtue of § 3704(a)(1). Thus, even if it is determined that a video gamer is an 'amateur or professional athlete' for purposes of triggering PASPA's application, Nevada would still be entitled to offer eSports wagering by virtue of its unlimited exemption under § 3704(a)(2).

There is considerable confusion about the parameters of PASPA's grandfathering provisions. A review of the statutory language and legislative history should clear that up. Paragraph (1) of subsection 3704(a) expressly provides that PASPA does not apply to any lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity 'to the extent' that such scheme was actually conducted by that State or other governmental entity' between January 1, 1976 and August 31, 1990. (28 U.S.C. § 3704(a)(1)). This 'grandfathering' clause was intended to permit states like Delaware, Oregon and Montana to continue the limited 'sports lotteries' that they had previously conducted (National Collegiate Athletic Ass'n, Inc. v. Christie, 730 F.3d 208, 216 (3d Cir. 2013)). The § 3704(a)(1) exemption, however, is limited to those sports wagering schemes that were in existence between January 1, 1976 and August 31, 1990, but only 'to the extent' that they were actually conducted during that timeframe. This is the principal reason why Delaware, Oregon and Montanawhile recognized as being 'grandfathered' under PASPAare nonetheless prohibited from authorizing single-game sports betting. Delaware and Oregon operated only 'sports lotteries' (involving multi-game parlay bets) prior to August 31, 1990, whereas Montana operated a sports betting pool (known as 'Montana Sports Action') where the winner was determined by the performance of individual football players in games or professional stock car drivers in races. The exemption under § 3704(a)(1) preserved these sports lotteries and sports pools, but did not allow for any expansion beyond that. (Senate Report, at 10 ['paragraph (1)[a] does not intend to allow for the expansion of sports lotteries into head-to-head betting.']).

The State of Delaware tested the limits of this exemption in 2009 when it attempted to expand its sports lottery (which had been limited to multi-game parlay bets on NFL teams) to include point-spread bets and 'over/under' bets on major professional and college sporting events. In Office of the Commissioner of Baseball v. Markell, 579 F.3d 293 (3d Cir. 2009), the United States Court of Appeals for the Third Circuit held that Delaware's proposed lottery expansion violated PASPA, as the exemption provided under § 3704(a)(1) for preexisting sports wagering schemes only applied 'to the extent' that such schemes were actually conducted between January 1, 1976 and August 31, 1990. (Id. at 304). The Third Circuit explained that, 'whatever the breadth of the lottery authorized by Delaware state law in 1976, PASPA requires us to determine ‘the extent'— or degree — to which such lottery was conducted.' (Id. at 309) (italics in original). The Third Circuit found that the only form of legal sports wagering 'conducted' by Delaware between 1976 and 1990 involved multi-game parlay bets on NFL teams. Accordingly, the Court held that Delaware was barred from offering single-game sports betting since it had not conducted such wagering during § 3704(a)(1)'s relevant statutory timeframe. As a result of the Markell decision, Delaware's version of legal sports betting remains limited to multi-game parlays involving only NFL teams.

The second relevant 'grandfathering' exemptionparagraph (2) of subsection 3704(a)provides that the PASPA prohibition does not apply to a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a state or other governmental entity where both (A) such scheme was authorized by a statute in effect as of October 2, 1991, and (B) such scheme actually was conducted in that state or other governmental entity during the period beginning September 1, 1989 and ending August 31, 1990, pursuant to the law of that state or other governmental entity. This 'grandfathering' provision was intended to release Nevada from PASPA's clutches. (See Christie I, 730 F.3d at 216). Under subparagraph (2), single-game wagering on sporting events was permitted to continue in Nevada because it was actually conducted in Nevada between September 1, 1989 and August 31, 1990 pursuant to Nevada state law. (Senate Report, at 10). PASPA's legislative history reveals that the reason for the unique treatment of Nevada was to protect Nevada's economy, although political considerations were also a factor. (138 Cong. Rec. S7274 & 7278 (daily ed. June 2, 1992) (statement of Sen. Hatch) (Congress had 'no choice' but to grandfather in the four states in order to 'resolve the problems surrounding getting an important bill like this through. . . . Compromise is frequently necessary around here, of course, in order to enact legislation.'). The Senate Judiciary Committee explained that it had no 'desire to threaten the economy of Nevada, which over many decades has come to depend on legalized private gambling, including sports gambling, as an essential industry, or to prohibit lawful sports gambling schemes in other States that were in operation when the legislation was introduced.' (Id. at 8).

A key distinction between the two 'grandfathering' provisions is that § 3704(a)(2) does not 'freeze in time' the sports betting schemes that qualify for that exemption. This is in marked contrast to the paragraph (1) exemption, which, by virtue of the 'to the extent' limiting language, prevents qualifying states from expanding their sports betting offerings beyond those actually conducted between 1976 and 1990. This is underscored by the Senate Report's express acknowledgement that Nevada will be able to expand its sports betting options under the paragraph (2) exemption. The Senate Report clarifies that '[p]aragraph (2) is not intended to prevent Nevada from expanding its sports betting schemes into other sports so long as it was authorized by state law prior to the enactment of [PASPA].' (Id.). It also makes clear that 'sports gambling covered by paragraph (2) can be conducted in any part of the state in any facility in that state, whether such facility is currently in existence.' (Id.). This explains why Nevada has been able to more than double the number of licensed sports books in the state since the 1992 enactment of PASPA. More importantly, it also explains why Nevada can offer eSports wagering, whereas Delaware, Montana Oregon and other states may not (barring, of course, a successful argument that PASPA does not apply to eSports competitions). Because it is the only state that is presently known to qualify for the § 3704(a)(2) exemption, Nevada will likely be able to monopolize the growing eSports wagering market until such time as PASPA is amended or repealed.

-- Daniel Wallach

Posted By : Daniel Wallach

Doctor Doctor: Mr. M.D.

Message posted on : 2016-11-20 - 08:25:00

Bioethics issues have played and will continue to play an increasing role in Sports Law. And they have become front and center with the case of Chris Bosh of the Miami Heat.

For the last two seasons, Bosh has missed considerable playing time as a result of his susceptibility to blood clots in his legs. In one instance, a clot traveled to his lungs causing a pulmonary embolism, a blockage in one of the lung's arteries, a dangerous and sometimes fatal condition. Bosh ended up in the hospital for nine days, losing 30 pounds and missing the last 30 games of the 2014-15 season

Patients susceptible to blood clots are treated with blood thinning medications such as Xarelto, an anticoagulant. In fact, Bosh appeared in a commercial for the drug touting its ability to help his condition. In the ad, which opens with the ten-time all-star nailing a 3-pointer, Bosh says: 'When I was sidelined with blood clots in my lungs, it was serious. Fortunately, my doctor had a game plan.' That doctor, of course, is not one employed by the Miami Heat, but his personal physician in whom he has placed his trust to not just keep him alive but to keep him on the court so he can earn the remaining $76,000,000 on his contract.

Drugs such as Xarelto don't actually thin the blood. Instead, they slow the chemical process the body uses to clot the blood in the event of an injury like a cut or bruise. For that reason, the main risk of such products is excessive bleeding in the event of such an injury, particularly internal bleeding which can cause heart attacks and strokes. The package insert for Xarelto actually advises the user to 'avoid activities that may increase your risk of bleeding or injury.' Obviously, professional basketball would be included in just such an activity.

Therein lies the rub for the Miami Heat who have advised Bosh that he has failed the team physical according to the team's doctors. Bosh and his doctors claim he is fit to suit up. They say athletes in other sports have had similar clotting problems and have managed the condition, principally by flushing the system of anticoagulants before competing. Professional basketball, however, is sometimes a three game a week affair and anticoagulants are usually prescribed for daily use not an on-again-off-again routine.

What is the right course from a bioethics standpoint? Team doctors certainly have conflicting loyalties. Do they look out for the best interests of the teamwhich is petrified of any player dying on the court traumatizing the fansor the interests of the player?

Let's leave aside the team's obligations under the Americans with Disabilities Act, which prohibits employment discrimination on the basis of a medical condition like Bosh's.

The best approach, it seems to me, is to allow the player to make his own medical decisions along with his personal physicians. Teams have the right to consult with those physicians to ensure they are competent and justified in their opinions and treatment decisions, but they should defer to those whose only interest is in the player's well-being.

Posted By : Alan C. Milstein

ULL suspends four players for caring about the election

Message posted on : 2016-11-13 - 10:42:00

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity. So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted By : Howard Wasserman

A post-election thought on athlete speech

Message posted on : 2016-11-12 - 17:33:00

This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.

But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.

Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.

The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.

Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.

Posted By : Howard Wasserman

Could Donald Trump Expand Sports Betting Nationally Through His AG Appointment?

Message posted on : 2016-11-11 - 12:28:00

In the aftermath of Donald Trump's shocking election night victory, many gaming analysts are assessing what, if any, impact a Trump presidency might have on the U.S. gaming industry. Some point to his past experience as a casino owner/operator as a positive harbinger of things to come. But others astutely note that his backing by Sheldon Adelson (a staunch opponent of online gaming), coupled with the Republican Party regaining full control of Congress, could have a negative overall impact, particularly in the online sector. The possibility exists that a Republican-controlled Congress could enact legislation banning online gambling, and thereby roll back the clock for those states (e.g., New Jersey, Delaware and Nevada) that have already entered the online poker space. Whether or not that scenario actually comes to pass is unknown at this early juncture, but a number of leading analysts view the Republican control of all three branches of government as a potentially troubling development for online gambling.

But one area where a Trump presidency could benefit the gaming industry is in the sports betting sector. As many might recall (especially with the help of YouTube), President-Elect Trump was a vocal supporter of legalized sports betting when he owned several New Jersey casinos. During the early 1990's, when New Jersey was given a "one-year" window under PASPA to legalize sports betting, then-casino magnate Trump pushed hard for New Jersey to enact sports betting legislation, calling it "vital to keeping taxes low and putting the bookies out of business." While New Jersey failed to beat the PASPA clock in 1993 and have been unsuccessful (to date) in overcoming the federal ban in court, the Garden State's sports betting hopes could receive a significant boost with Mr. Trump in the White House and New Jersey Governor Chris Christie in an influential advisory or cabinet role (perhaps as Attorney General).

Specifically, President-elect Trump could influence sports betting policy through his appointment of a new Attorney General. Under PASPA, the Attorney General is empowered to seek an injunction against any violation of PASPA in federal district court. (28 U.S.C. § 3703). By contrast, "professional sports organizations" and "amateur sports organizations" (the only other entities with standing to sue under PASPA) can seek injunctive relief for violations of PASPA only when their own "game[s] are alleged to be the basis such violation." (Id.). Thus, a sports organization would only have standing to sue under PASPA to protect its own games, but not those associated with another sports organization (despite Judge Michael Shipp's ruling to the contrary in the Christie II case). For example, while the National Basketball Association could seek a court injunction against any State or federally-recognized Indian Tribe that has legalized sports betting on NBA games (since it meets PASPA's definition of a "professional sports organization" with respect to its own games), it would lack standing under PASPA to seek injunctive relief to block the wagering on the competitive games of other sports organizations, such as those sponsored by Major League Soccer or the PGA Tour.

This standing limitation could provide states with an unconventional avenue for legalizing sports betting on soccer, golf, tennis, boxing, mixed martial arts, arena football, and NASCAR (as well as a number of other "non-major" sports), since the governing organizations of those sports might not object to such wagering schemes, and, indeed, might tacitly (or even explicitly) support it to increase interest in their sport. And the five major U.S. sports leagues (NBA, NFL, MLB, NHL, and NCAA) would be powerless to block it in court, so long as the legislation at issue expressly excluded those organizations' athletic contests from any new sports wagering regime. Of course, this strategy would only work if the U.S. Attorney General (who is empowered to seek injunctive relief against any violation of PASPA, irrespective of the sport) opted not to pursue litigation against states that have authorized this limited form of sports gambling. But as we have seen with the recent spate of state legislation approving fantasy sports wagering (which arguably falls within PASPA's broad scope), the Attorney General has not exactly been a vanguard of PASPA enforcement. In the nearly 25-year history of PASPA, the Attorney General has never initiated a lawsuit against a state for violating PASPA, opting instead for the more subservient role of an "intervener" or "interested party" in the two PASPA lawsuits brought by the major sports leagues against the State of New Jersey. Although a number of states have explicitly legalized fantasy sports through legislative enactments, the Attorney General has not involved PASPA to block any of those new laws, and probably never will.

With the Attorney General possessing so much discretionary power (especially when the major sports leagues are not incentivized--or, in some cases, not even allowed--to sue), Mr. Trump's election could lead to the expansion of traditional sports betting without requiring any Congressional action. By way of illustration, a new Presidential administration could decide that blocking state-authorized sports betting is not a high enough priority (especially when it is supported by the affected sports organizations) and thus direct the new Attorney General not to pursue any legal challenges when the sports betting at issue is legal under state law and is undertaken with the approval or acquiescence of the affected sports organizations. This could provide an opportunity for a state like New Jersey to enact a true sports gambling regime--with regulatory oversight--albeit one that is somewhat limited in nature (involving only those sports organizations that support wagering on their games). Perhaps Major League Soccer or mixed-martial arts could whet the sports betting appetite for now. After all, having some sports betting is better than having none. A measure like this could provide some temporary relief to New Jersey's struggling casinos and racetracks until a more comprehensive federal regime is enacted. This is one potentially intriguing approach for expanding legal sports betting without repealing or amending PASPA.

Posted By : Daniel Wallach

Locker room talk

Message posted on : 2016-11-04 - 15:38:00

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including for high-level college basketball, in the '80s and '90s (a considerably less-enlightened time), but never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.
[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.
Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

Posted By : Howard Wasserman

How a non-infield fly shows the need for the Infield Fly Rule

Message posted on : 2016-10-18 - 00:06:00

During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.

The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.
[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.
The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.

A couple thoughts.

First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.

Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.

Posted By : Howard Wasserman

Greenberg and Koufax Sit on Yom Kippur

Message posted on : 2016-10-11 - 12:55:00

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.
Posted By : Howard Wasserman


Message posted on : 2016-10-11 - 12:25:00

Posted By : Howard Wasserman

NJ Horsemen Question "Legality" of DFS Laws in SCOTUS Filing in NJ Sports Betting Case

Message posted on : 2016-10-06 - 15:24:00

New Jersey's quest to legalize sports betting has officially landed at the United States Supreme Court--for a second time. In an under-the-radar legal filing on Friday (which I exclusively reported on Twitter), the New Jersey Thoroughbred Horsemen's Association ("NJTHA"), which represents the interests of Monmouth Park Racetrack, filed a formal petition with the Supreme Court asking the high court to review the Third Circuit's recent en banc decision in the "Christie II" case. That decision--entered on August 9th--upheld a lower court's ruling preventing New Jersey from partially repealing its state-law ban on sports gambling which had sought to decriminalize sports betting (and remove any and all state law restrictions, including any applicable regulations) at the state's casinos and racetracks.

The NJTHA petition focuses on two central issues: (1) whether PASPA violates the Tenth Amendment anti-commandeering principle by requiring states to maintain unwanted state-law prohibitions on sports betting; and (2) whether state laws legalizing daily fantasy sports also violate PASPA. As to the first issue, the NJTHA identifies the following "Question Presented" as meriting review by the Supreme Court: "Does a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention on New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997)?" Answering that question in the affirmative, the NJTHA argues that the Third Circuit's decision "flouts" the Supreme Court's anti-commandeering jurisprudence by "requiring the State of New Jersey to keep in place criminal prohibitions that the State has chosen to lift." The NJTHA asserts that principles of "federalism"--which are designed to protect both the States and the People--"have been nullified" by the Third Circuit's decision which results in "the content of New Jersey law [being] dictated by the national government, in derogation of the will of the people of New Jersey and their elected representatives."

Conflict with Commandeering Decisions on Marijuana Decriminalization Laws

Although no "circuit split" has yet arisen on the issue of PASPA's constitutionality, the NJTHA seeks to elicit Supreme Court review based on a conflict between the Third Circuit's decision and the decisional law of three state supreme courts and one other federal court of appeals on the broader issue of whether a state is free to repeal its own state-law prohibitions without interference from the federal government. On this critical constitutional issue, the NJTHA petition points to case-law from four other jurisdictions (besides New Jersey) upholding state marijuana decriminalization laws:
In conflict with the Third Circuit's decision, the highest courts of several States have recognized that the national government lacks the constitutional authority to require States to freeze in place State law prohibitions. See Reed-Kaliher v. Hogatt, 347 P.2d 136, 141 (Ariz. 2015); Ter Beek v. City of Wyoming, 846 N.W.2d 531, 538 (Mich. 2014); State v. Nelson, 195 P.3d 826, 834 (Mont. 2008). In these decisions, the Supreme Court of Arizona, the Supreme Court of Michigan, and the Supreme Court of Montana each relied on anticommandeering principles to uphold the validity of State laws removing, for qualified patents, prior State law prohibitions of marijuana. See also Conant v. Walters, 309 F.3d 639, 645-46 (9th Cir. 2002) (Kozinski, J., concurring) ("much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. . . . If the federal government could make it illegal under federal law to remove a state-law penalty, it could then accomplish what the commandeering doctrine prohibits: The federal government could force the state to criminalize behavior it has chosen to make legal.")
"Under the Third Circuit's interpretation of the United States Constitution," the NJTHA petition declares, "all of these State Court decisions are wrong. Under the Third Circuit's reasoning, Congress has the constitutional power to prohibit States from selectively removing State law prohibitions on private conduct." The NJTHA insists that the Third Circuit, unlike the aforementioned state court decisions, "failed to recognize that while State law cannot create a defense to federal prosecution, a State remains free to prohibit as little private conduct as it chooses under its own law." Continuing on this theme, the NJTHA petition adds that the Third Circuit "failed to see that the Constitution, properly interpreted, leaves the people of New Jersey as free to exercise their liberties and partially remove New Jersey's prior state law prohibiting sports gambling as it leaves the people of Arizona, Michigan, and Montana free to partially remove their prior State law prohibitions on marijuana."

The NJTHA warns of the "truly deplorable" results and "public mischiefs" that would ensue from such a lack of uniformity in the federal constitutional case-law. In urging the Supreme Court to review the Third Circuit's anomalous result, the NJTHA petition stresses that "[o]nly the Court alone can make the Constitution uniform across the nation." Thus, the petition concludes this argument section by urging the Supreme Court to "grant certiorari and make this promise of liberty-enhancing federalism uniform throughout the country."

New Jersey's commandeering argument in this latest round of litigation is arguably more compelling than its prior iteration advanced in the Christie I case. In its previous Supreme Court petition, New Jersey's commandeering argument was directed to PASPA's "negative command" forbidding states from licensing or authorizing sports wagering. That argument was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of "affirmative activity," such as taking title to radioactive waste (as in the New York case) or performing background checks on prospective handgun purchasers (as in the Printz case). But this time around, New Jersey's commandeering argument addresses the flip-side of PASPA: its "affirmative requirement" compelling states to prohibit sports wagering. This view of PASPA fits more nearly into the Supreme Court's anti-commandeering jurisprudence, and, as such, greatly enhances New Jersey's prospects for Supreme Court review. Nonetheless, this is still a long-shot proposition at best since the Supreme Court typically grants less than two percent of all petitions seeking certiorari review. Still, this one has a better shot than most.

Selective Enforcement of Daily Fantasy Sports Laws

Turning next to the hot-button issue of daily fantasy sports, the NJTHA's petition highlights the fact that the professional sports leagues (the plaintiffs and appellees in the Christie II case) "continue to reap enormous profits on daily fantasy sports--wagering based on the performances of players in the Leagues' sports contests--where the Leagues are actively promoting such betting and/or owning daily fantasy betting platforms that are now authorized by law in numerous states despite the fact that PASPA may prohibit daily fantasy wagering." (The italics are mine to note that the NJTHA would obviously prefer not to jeopardize a prospective future DFS law in New Jersey).

In this scintillating final section of the petition (covering three pages), the NJTHA also urges Supreme Court review based on the "selective enforcement" of PASPA by the professional sports leagues due to their failure to challenge the recent spate of state laws authorizing daily fantasy sports, which the NJTHA suggests are also encompassed by PASPA (as I have long maintained; see here and here). The NJTHA petition asserts that the Third Circuit's decision has "nationwide significance" because "it casts a long shadow over numerous state laws and regulations authorizing daily 'fantasy' sports wagering" (royalty owed here to Joe Asher, the CEO of William Hill US, for originally coining the phrase "daily fantasy sports 'betting'").

Noting that there are currently nine states that have laws authorizing daily fantasy sports "wagering" on athletic performances, the NJTHA petition cautions that the Third Circuit's decision "calls into question the laws and regulations of numerous States that have enacted regimes regulating daily fantasy sports betting." Correctly observing that the provisions of PASPA "apply both to wagering on the outcome of sports games as well as wagering on the performances of the athletes in such games," the NJTHA contends that "all States that are currently licensing or authorizing 'by law' daily fantasy sports (as well as DFS operators in those States) are, under the Third Circuit's decision, at some risk under PASPA." Here, the NJTHA petition stresses that Supreme Court review is necessary to resolve the "uncertainty" as to whether the state laws authorizing daily fantasy sports may also violate PASPA:
The Third Circuit's decision creates uncertainty as to whether the efforts of the numerous States that have licensed or authorized DFS by law may violate PASPA. A determination by this Court as to whether PASPA is constitutional or not eliminates that uncertainty across the nation.
The NJTHA petition also highlights the sports' leagues' economic self-interest in refusing to invoke PASPA to block state DFS laws, while selectively wielding it as billy-club against states like New Jersey that dare attempt to legalize a different form of sports gambling over the leagues' objections. The petition questions the wisdom of allowing the sports leagues (the de facto "gatekeepers" of PASPA) to determine the question of the enforceability and constitutionality of PASPA, instead urging the Supreme Court (and the Supreme Court alone) to resolve that crucial question:
Whether PASPA is a constitutional statute should not be left in the hands of the Leagues. They have already shown that they seek to enforce PASPA only when it suits their economic interests. It is emphatically the province of this Court, not the Leagues, to decide whether PASPA is constitutional or not. . . . Under PASPA, the only entities hat have the authority to commence suit enjoin a violation of PASPA are the United States and the "sports organization whose competitive game is alleged to be the basis of such violation." . . . As evidenced by this action, the United States is not independently seeking to enforce PASPA. And the Leagues have no interest in seeking to enforce PASPA with respect to DFS because the Leagues are significantly involved in DFS--indeed, the Leagues have equity stakes in DFS operators such as FanDuel and DraftKings.
Finally, in an interesting footnote sure to spark some debate among DFS aficionados, the NJTHA petition contends that paid DFS contests are not immune from the same "integrity" concerns that have caused the leagues to historically oppose traditional single-game sports betting. On this score, the NJTHA posits that "if sports betting on the Leagues' games somehow causes irreparable injury to the integrity or the appearance of the integrity of such games[,] then a fortiori[,] daily fantasy games where each individual performance is at issue would [likewise] cause irreparable injury."

The NJTHA petition is the first of three certiorari petitions that are expected by the appellees in the Christie II case. The other petitions--one from New Jersey Governor Chris Christie and the other from the President of the New Jersey Senate and Speaker of the New Jersey Assembly--are expected to be filed later this week.

Posted By : Daniel Wallach

O'Bannon Case Reaches End of Road

Message posted on : 2016-10-05 - 08:00:00

The Supreme Court recently refused to hear Ed O'Bannon's case challenging NCAA limits on payment from the use of players' names, images, and likenesses (NILs) in videogames and game footage. This non-decision offers something for both sides, but raises questions for antitrust fans.

First, it offers a win for the NCAA, which gets to keep its Ninth Circuit ruling that rejected a deferred NIL payment of up to $5,000. That court concluded that the district court had erred in upholding such a payment since 'paying students cash compensation' would not 'promote amateurism as effectively as not paying them.' The Court's refusal to hear the case means that (at least in the 9 states and 2 Pacific Island jurisdictions that make up the Ninth Circuit), Division I men's basketball and football players will not be paid for the use of their names, images, and likenesses.

Second, it offers a win for the players in the undermining of the NCAA's prized amateurism defense. For decades, the NCAA has claimed that all sorts of anticompetitive restrictions are justified because of amateurism. Now it will not be so easy.

In a full trial consisting of 24 witnesses, 15 days, and thousands of pages of testimony, the district court considered the amateurism defense more thoroughly than any previous court. And the more it looked under the hood, the worse amateurism appeared: football players 'accept[ing] Pell grants in excess of their cost of attendance'; tennis recruits earning '$10,000 per year in prize money'; and shifting definitions of the term, with 'significant and contradictory' revisions of 'malleable' compensation rules.

In addition to amateurism skepticism, the plaintiffs won because they get to keep 'cost of attendance' awards, which are higher than 'grant in aid' stipends since they include nonrequired books and supplies, transportation, and other expenses. Almost certainly because of the case, schoolsincluding the Power 5 conferences have adopteda similar rule.

Third, though perhaps less exciting, it offers a loss for antitrust fans. For most business arrangements, courts apply a test known as the 'Rule of Reason.' Under this analysis, courts consider the pros and cons (in antitrust parlance, the procompetitive and anticompetitive effects) of the conduct.

Unfortunately, the Ninth Circuit forgot this, punishing O'Bannon for not offering a 'less restrictive alternative' to the $5,000 NIL payment. As I have explained elsewhere, if the court insisted on rejecting this alternative, it should have proceeded to balancing, on which O'Bannon was likely to emerge victorious given the strong anticompetitive effectsof a 'price-fixing agreement' that 'value[d] the athletes' NILs at zero' and weakened amateurism justifications. Adding insult to injury, the Ninth Circuit substituted its version of amateurism (one in which student-athletes could not be paid any cash at all) for the one adopted by the district court (in which NIL payments were acceptable since they did not affect demand for college sports).

My antitrust disappointment aside, on balance the plaintiffs came out ahead in the O'Bannon case. While the NIL payment was struck down, the skeptical treatment of amateurism will have effects for years to come. For example, the ongoing Jenkins case, which takes even more direct aim at the college model by striking down all limits on payment, can now point to the bloodied amateurism defense not as an automatic savior but rather as a hobbled justification. If Jenkins or another case topples the NCAA's system, the O'Bannon case will have played a crucial role.

Posted By : Michael Carrier


Message posted on : 2016-10-05 - 04:55:00

The future of daily fantasy sports in New York may soon be in a state of flux, if not outright jeopardy. In a stunning, but not altogether surprising development (since I've highlighted this issue previously), a quartet of New York residents has filed a lawsuit in Albany County Supreme Court to block the implementation of the recently-enacted New York fantasy sports law. (A copy of the complaint can be found here). Specifically, the lawsuitcoordinated by the anti-gambling group Stop Predatory Gamblingseeks a declaratory judgment declaring that New York's 'Interactive Fantasy Sports' Law (Chapter 237 of the Laws of the State of New York) is 'unconstitutional' because it impermissibly expands commercial gambling in New York in contravention of Article I, Section 9 of the New York State Constitution. On this point, the lawsuit contends that the New York Legislature was without authority to legalize DFS in New York absent a constitutional amendment, a time-consuming process which requires two successive sessions of legislative approval, separated by a general election, and then followed by a statewide voter referendum. At minimum, this process can take two years or more.

The complaint accuses the state legislature of circumventing this mandatory process. As the lawsuit explains, 'the Legislature may not amend the Constitution under the guise of legislating. It cannot unilaterally define ‘gambling' to deviate from its ordinary and well-understood meaning as used in the Constitution by excluding therefrom interactive fantasy sports contests, and, in particular, DFS. It cannot usurp the right of the people as any such redefinition is the exclusive prerogative of the People via a Constitutional amendment approved in a statewide referendum. See New York Constitution, Article XIX. That process was not followed here. Chapter 237 should therefore be declared unconstitutional and the Defendant State officials and agencies should be permanently enjoined from implementing it.'

Predictably, the lawsuit highlights the fact that New York's chief law enforcement officer, Attorney General Eric Schneiderman, 'has already declared in court filings that DFS violates Article I, § 9 of the [New York] Constitution and successfully obtained an injunction to prevent such activity prior to the adoption of Chapter 237.' Calling DFS 'a new business model for online gambling,' the 44-page complaint also attacks the well-worn argument of industry supporters that the predominantly 'skill-based' nature of DFS precludes it from being characterized as 'gambling.' Referring to this premise as both a 'non-sequitur' and 'fallacy,' the plaintiffs characterize the 'skill vs. chance' distinction as 'a false dichotomy conjured up in an obvious effort both to circumvent a clear and unequivocal constitutional prohibition and to prevent the people from exercising their exclusive right to decide whether the Constitution should be amended to exclude DFS from the constitutional ban on gambling.' As the lawsuit explains in greater detail, '[s]kill and chance are not mutually exclusive, and just as betting on a horse can involve skill, the outcome remains uncertain and a bet that one horse will win is still a gamble. Guessing on how an athlete will actually perform in a subsequent real life game always involves chance.' That includes an ‘educated' guess.'

Interestingly, the lawsuit also alleges that the New York DFS law violates the Professional and Amateur Sports Protection Act ('PASPA'), a 1992 federal law which prohibits states from 'authorizing' or 'licensing' sports betting.

More troublingly (for industry operators and players alike), the 44-page lawsuit seeks to shut down daily fantasy sports in New York. The one-count complaint, which names New York Governor Andrew Cuomo and the New York State Gaming Commission as the sole defendants, seeks a permanent injunction preventing New York State officials from 'implementing' Chapter 237 or 'expending taxpayer dollars' to implement any of its provisions. While the new law has already been 'implemented' so to speakas a number of companies (including FanDuel and DraftKings, among others) have obtained temporary permits and have been operating in New York since Augustthis lawsuit has the potential to unwind all of these efforts. No word yet on whether the plaintiffs are seeking a more immediate preliminary injunctionwhich could jeopardize fantasy sports in New York during the current NFL season (depending on how quickly such a motion could be heard)or will be pursuing only a permanentinjunction following a trial (or as part of a summary judgment motion). While this lawsuit has not yet been served, I would expect it to heat up pretty quickly, with both FanDuel and DraftKings likely 'intervening' in the case to protect their interests, and motions for a preliminary injunction and/or summary judgment being filed before the end of the year.

So who are these plaintiffs? According to the complaint, the plaintiffs (Jennifer White, Katherine West, Charlotte Wellins, and Anne Remington) 'are citizens who are residents and taxpayers of New York who either have gambling disorders or are relatives and family members of such persons.' The complaint explains that '[t]heir heartbreaking stories include a litany of suffering marked by child neglect, bankruptcy, divorce, loss of homes, and the agony of rehabilitation and relapse, all directly caused and threatened to continue to be caused by DFS gambling.' The complaint describes the various ways that each plaintiff has personally been harmed by gambling, an important point for purposes of establishing 'standing' to sue. However, New York law recognizes liberalized taxpayer standing to challenge legislative enactments as contrary to the state constitution. Thus, these four plaintiffs should be able to withstand any legal challenges to their standing and legal capacity to bring this lawsuit, although that will not stop the State, (and eventually DraftKings and FanDuel) from trying to dismiss the lawsuit on that basis.

The lawsuit was filed by O'Connell and Aronowitz, the Albany-based law firm known for having previously challenged the New York Legislature's approval of video lottery terminals more than a decade ago. So this type of lawsuit is definitely in their wheelhouse. And the complaint is painstakingly detailed and compelling. I've always believed that with the right plaintiffs and the right law firmand both categories appear to be satisfied in spades herea lawsuit challenging the New York DFS law on constitutional grounds always stood an excellent chance of success. This one definitely has a chance, and, as such, the future of DFS in New York may be in serious jeopardy.

Posted By : Daniel Wallach

New Jersey Sports Betting, The Supreme Court, and a Nuclear Option (with a Twist)

Message posted on : 2016-10-04 - 22:58:00

For those of you who have been closely following New Jersey's five-year quest to legalize sports gambling, it should come as no surprise that the Garden State is not quite ready to throw in the towel following its latest federal court setback. Earlier today, New Jersey State Senator Ray Lesniak told ESPN's David Purdum that New Jersey would be filing a petition with the United States Supreme Court by the end of this week. While the news is not surprisingafter all, New Jersey appealed its Third Circuit loss in 2013 to the Supreme Court, so why wouldn't it do so again, following another divided Third Circuit opinion (with two dissenting opinions and an en banc rehearing). But the deadline for filing a petition for writ of certiorari is November 7th, which is more than one month away. Why the rush, especially with only eight justices? Wouldn't it make more sense to file in November with the potential recess appointment of Justice Merrick Garland looming (if Hillary Clinton becomes the President-Elect), thereby enhancing the possibility of certiorari being granted with one more judge being able to vote. In all likelihood, Senator Lesniak was referring to his own chamber's petitionthe anticipated Supreme Court filing by the New Jersey State Senate and New Jersey State Assembly, who are represented in this case by Stephen Sweeney (the Senate President) and Vincent Prieto (the Assembly Speaker). There are, however, two other 'New Jersey' parties: the New Jersey Thoroughbred Racing Association and New Jersey Governor Chris Christie. They are the principal New Jersey parties in this case, and their expected petitions will likely be filed much closer to the November 7th deadline.

Whenever these petitions are actually filed, we can expect the key arguments to again focus on the anti-commandeering doctrine, a principle of constitutional law that prevents the federal government from dictating how a state regulates its own citizens. New Jersey would presumably highlight the dissenting opinions in Christie II, particularly Judge Thomas Vanaskie's criticism of the 'shifting line approach' employed by the majority, which had opened the door to the possibility of a partial repeal in Christie I before essentially sealing it shut in Christie II. Judge Vanaskie observed that after Christie I, a state like New Jersey 'at least[had] the choice of either: (1) repealing, in whole or in part, existing bans on gambling on sporting events,' or (2) 'keep[ing] a complete ban on sports gambling.' Such a choice, he explained, was essential to upholding PASPA's constitutionality in Christie I. By contrast, he wrote, the majority's decision in Christie II 'does not leave a state ‘much room' at all. Following Christie II, states 'must maintain an anti-sports wagering scheme' by 'leav[ing] sports gambling prohibitions on the books to regulate their citizens.' Judge Vanaskie opined that this really 'leaves the States with no choice,' adding that '[t]he anti-commandeering doctrine, essential to protect State sovereignty, prohibits Congress from compelling States to prohibit such private activity.' Judge Vanaskie was unpersuaded by the majority's assertion that some partial repeal options 'may pass muster' (such as the example involving small wagers between friends and family), noting that the majority 'does not explain why all partial repeals are not created equal or explain what distinguishes the 2014 Law from those partial repeals that pass muster.' As Judge Vanaskie explained, '[t]he bedrock principle of federalism that Congress may not compel the States to require or prohibit certain activities cannot be evaded by the false assertion that PASPA affords the States some undefinedoptions when it comes to sports wagering.' Contending that the majority opinion 'excised' the distinction between a 'repeal' and an 'authorization,' Judge Vanaskie declared that it is 'clear' that no repeal of any kind will evade PASPA's command that no State 'shall . . . authorize by law sports gambling.' Such commands, Judge Vanaskie concluded, 'are fundamentally incompatible with our constitutional system of dual sovereignty.'

Judge Vanaskie's commandeering analysisand his thesis that PASPA requires states to maintain and enforce existing state-law gambling prohibitionswill likely be the centerpiece of New Jersey's petition to the Supreme Court. In his Christie II dissent, Judge Vanaskie described PASPA as 'seek[ing] to control and influence the manner in which States regulate private parties' by effectively commanding the states to maintain and enforce existing gambling prohibitions. By issuing this directive, Judge Vanaskie wrote, 'Congress has set an impermissible ‘mandatory agenda to be considered in all events by state legislative or administrative decisionmakers.'' 'The logical extension of the majority,' he continued, 'is that PASPA prevents States from passing any laws to repeal existing gambling laws.' (italics in original). By 'effectively command[ing] the States to maintain and enforce existing gambling prohibitions,' Vanaskie concluded, 'PASPA . . . dictat[es] the manner in which States must enforce a federal law,' adding that the Supreme Court 'has never considered Congress' legislative power to be so expansive.'

Although New Jersey unsuccessfully sought certiorari review following the Christie I decision, its commandeering argument this time around is arguably more compelling. In its previous Supreme Court petition, New Jersey's commandeering argument in Christie I was directed to PASPA's 'negative command' forbidding states from licensing or authorizing sports wagering. That was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of 'affirmative activity,' such as taking title to radioactive waste (as in the New York case) or performing background checks on prospective handgun purchasers (as in the Printz case). But this time around, New Jersey's commandeering argument will address the flip-side of PASPA: its 'affirmative requirement' compelling states to prohibit sports wagering. This view of PASPA fits more neatly into the Supreme Court's commandeering jurisprudence, and, as such, New Jersey's prospects for Supreme Court review are arguably enhanced. Nonetheless, this is still a long-shot proposition at best since the Supreme Court typically grants less than one percent of all petitions seeking certiorari review. New Jersey's chances for Supreme Court review are also hampered by the absence of any 'circuit split' on the issue of PASPA's constitutionality. Most cases accepted for review by the Supreme Court involve conflicting decisions among the lower federal courts on a particular legal issue. Since the Christie line of cases are only the federal court decisions addressing the constitutionality of PASPA, the all-important 'circuit split' is lacking here. (Note: New Jersey could potentially focus the 'circuit split' on the broader commandeering issue by pointing to the Ninth Circuit's decision in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), where Judge Kozinski reasoned in a concurring opinion that 'preventing [a] state from repealing an existing law is no different from forcing it to pass a new one,' and, therefore, 'runs afoul of the commandeering doctrine.' That language is arguably at odds with Christie II).

Even if New Jersey's pitch to the Supreme Court fails (and we will likely not know until the Spring of 2017), it still possesses other optionslegislativelyto legalize sports betting. One option would be to enact another partial repeal law, though perhaps one not nearly as targeted or selective as the 2014 Law (which decriminalized sports gambling only for casinos, racetracks and former racetrack sites). While the Christie II decision did not provide specific examples of a partial repeal law that would 'pass muster'other than the commercially meaningless 'friends and family' exceptionit did allow that states had 'sufficient room' under PASPA to 'craft their own policies.' The precise contours of this policy-making room for state lawmakers were not spelled out in Christie II, but, clearly, New Jersey would be permitted to partially repeal its state-law prohibitions on sports gambling so long as it did not cross the line into an 'authorization' of that activity (which would be prohibited by PASPA). So, what kind of partial repeal would 'pass muster' with the Third Circuit? Perhaps a partial repeal based on geographic boundaries, such as a law repealing sports gambling prohibitions at any commercial establishment within Atlantic County (where all of New Jersey's casinos are located) and Monmouth County (the home to Monmouth Park Racetrack). While such a law could likewise be viewed as benefitting casinos and racetracks, it would not be nearly as selective or targeted as the 2014 Law: it would decriminalize sports betting within the entirety of both counties (and not just at state-licensed casinos and racetracks). A repealer like this would stand a far better chance of passing legal muster, though it would likely lead to more litigation with the sports leagues, which would invariably point to language in the Christie II opinion stating that a state law which 'channels wagering activity to particular locations . . . is in essence, an ‘authorization' under PASPA.' Ironically, this could the tee up the next round of litigationanyone ready for a 'Christie III'?over the meaning, breadth and scope of the word 'locations,' such as whether it refers only to specific venues or encompasses any 'geographic-based' repealer (such as a law decriminalizing the activity throughout an entire county or municipality).

A second optionand one completely within New Jersey's control to pull offis the so-called 'nuclear option,' e.g., a complete decriminalization of sports betting statewide. Under a complete repeal, any and all state-law prohibitions against sports betting would be removed so that anybody (literally anybody) could offer, accept, or place sports wagers without criminal or civil repercussions (or any form of regulation). This 'Wild West' scenario would decriminalize sports betting not only for casinos and racetracks, but also for the corner bookie, retail stores, and, most stunningly, for organized criminal enterprises. One New Jersey State SenatorRay Lesniak (who has long championed sports betting in New Jersey)announced that he intends to introduce such legislation in the near future. While such a measure would face long odds in the New Jersey Senate and New Jersey Assembly due to its controversial premise (e.g., having no laws on the books prohibiting sports betting), its true goal is more forward-thinking: to force the major sports leagues and Congress to address the issue of expanded legal sports betting sooner rather than later. The leagues' worst fearswidespread unregulated and unmonitored sports gambling (with no oversight)would be realized if New Jersey were to enact such a law. Thus, the thinking here is that a complete repeal, if enacted, would dramatically shorten the timeline for expanded legal sports betting by forcing the sports leagues and Congress to act more expeditiously in legalizing sports betting nationally. While this 'nuclear' option may not be taken seriously by some observerswho see it as nothing more than a 'bluff' or a publicity stuntit is the only one of the three remaining options that would guarantee sports betting in New Jersey on day one.

Finally, New Jersey may wish to consider what I call the 'nuclear option with a twist': completely repealing its state-law prohibitions on sports betting and then, over time, adding restrictions to arrive at essentially the same place as the 2014 Law: legal sports betting at casinos and racetracks. Judge Fuentes alluded to this very possibility in his Christie II dissent when he reasoned that 'no conceivable reading of PASPA' would preclude a state from 'repeal[ing] completely its sports betting prohibitions' and then adding 'later enacted limiting restrictions regarding age requirements and places where wagering could occur.' Such a multi-stage legislative approachwhich could be spread out over a period of several yearscould allow New Jersey to accomplish over time what it could not achieve in a single legislative actlegal sports betting confined to specific locations of the State's choosing. Of course, such a maneuver would surely be challenged by the sports leagues, which would argue that New Jersey was trying to accomplish indirectly what it was prohibited by Christie II from doing directly. But this option offers certain advantages: at the outset, it would guarantee legal sports betting in New Jersey, while potentially providing the State with an opportunity to make appropriate down-the-road adjustments to the law free from the clutches of PASPA. This could be the pragmatic solution for those lawmakers hesitant to completely decriminalize sports gambling.

Posted By : Daniel Wallach

NJICLE Kickoff Classic

Message posted on : 2016-09-12 - 20:18:00

I am honored to be speaking at the New Jersey Institute for Continuing Legal Education's upcoming "Kickoff Classic" on September 24. The classic will focus on sports law controversies and CLE credit will be available. This link has the key details and information on signing up, and I hope you do.

Specific topics in the classic include:

• Public relations disasters — what is an attorney's role when the players and coaches
commit 'fouls' off of the field
• Representing sports agents — legal issues involved in courting and signing with the NFL
• NCAA compliance — how to keep college players on the amateur side of the dividing line
• Betting on games - the current status of sports betting in New Jersey
• Concussions — the latest law on injuries and liability
• Gaming the system - O'Bannon vs. NCAA and should student athletes be paid for the
use of their names and likenesses in video games

Here's some more info:

NJICLE Kickoff Classic
Format/Skill Level:
Rutgers- Livingston Campus
84 Joyce Kilmer Avenue Piscataway, NJ 08854
September 24, 2016
8:30 AM - 11:30 AM ET
Add to Calendar
NJSBA & NJSBA Section/Committee members are eligible for
special discounts - login to see your discounted rate for this program.

Program time confirmed: 8:30 am. to 11:20 a.m.
Program Location: Rutgers Livingston Student Center, 84 Joyce Kilmer Ave, Piscataway.
Game time confirmed: 12:00 p.m.

Presented in cooperation with the NJSBA Entertainment, Art and Sports Law Section, the NJSBA Young Lawyers Division and the NJSBA Senior Lawyers Special Committee
Click here to print the registration form.

Seminar registration does not include football ticket. To purchase tickets, please email, fax or call customer service at 732-214-8500.

Timothy D. Cedrone, Esq.
Chair, NJSBA Entertainment, Art and Sports Law Section
Apruzzese McDermott Mastro & Murphy, PC (Liberty Corner)
Speakers include:
Anthony R. Caruso, Esq.
Scarinci Hollenbeck (Lyndhurst)
Alan Milstein, Esq.
Sherman Silverstein Kohl Rose & Podolsky, PA (Moorestown)
Paul Perrier
Senior Associate Athletic Director/ Chief Compliance Officer,
Rutgers University Athletic Department (Piscataway)
Elnardo J. Webster, II, Esq.
Former football player (1988 to 1991), Rutgers University
Inglesino, Webster, Wyciskala & Taylor LLC (Parsippany)

About the Program:
R U Ready for Some Football??!!
Join NJICLE, some former Rutgers football players, the NJSBA EASL Section and the Young Lawyers Division as we create a new football tradition with the NJICLE Kickoff Classic! Hear directly from attorneys and some former players who represent athletes, agents, facilities and university football programs as they tackle some of the hottest legal issues in sports. Then, enjoy the Rutgers vs. Iowa game with your friends and family.

CLE Credits:
NJ CLE information: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.3 hours of total CLE credit.
This program has been approved for 3.3 credits (50 minute hour)
PA CLE:2.5 substantive credits pending ($12 fee — separate check payable to NJICLE must be submitted at the end of the program)
NY CLE (t&nt):
3.0 professional practice credits

Click here to print the registration form.

Seminar registration does not include football ticket. To purchase tickets, please email, fax or call customer service at 732-214-8500.

Posted By : Alan C. Milstein

Third-Party Funding for Future PASPA Challenges?

Message posted on : 2016-09-03 - 23:50:00

In an article penned for Deadspin earlier this week, I laid out an accelerated timeline for legalizing sports betting nationally. The most accelerated path, as I explained in the piece, would be through future court challenges lodged by other states. In my opinion, the quickest path to legalized sports betting would occur through a combination of lobbying and litigating, with an emphasis on the latter. The more litigation pressure, especially if one state succeeds, the quicker the four major professional sports leagues would lobby Congress to repeal or amend the Professional and Amateur Sports Protection Act ("PASPA"), the federal law that prohibits states (like New Jersey) from authorizing or licensing sports betting.

But one of the major obstacles facing potential state challengers is one of "cost," that is, how can states--constrained by budgetary considerations--afford to finance a potentially multi-year, multi-million dollar litigation battle. After all, the final tab for New Jersey, as reported earlier today, was $5.1 million.

It turns out, however, that New Jersey taxpayers did not end up footing the bill--at least not directly. As exclusively reported by John Ensslin of the Bergen Record, the legal fees associated with the New Jersey sports betting case were paid by the state's gaming industry. As Ensslen's article explains:
Taxpayer funds are not being used to pay for the sports betting litigation, according to Leland Moore, a spokesman for the U.S, Attorney's Office. Instead, the legal effort is being funded through fees paid by the gaming industry to regulatory agencies, Moore said. Three-quarters of the costs are paid by fees paid to the Casino Control Fund of the [New Jersey] Division of Gaming Enforcement. An additional 25 percent comes from fees paid to the state Racing Commission, he said.
While taxpayers are "indirectly" footing the bill through a diminution in regulatory services (e.g., less money is available for other gaming regulatory functions), this financing model could serve as an example for other states contemplating a similar legal challenge to PASPA. For those states hampered by budgetary deficits or shortfalls, the New Jersey example illustrates that there are alternative approaches to funding.

The states are not alone in desiring sports betting: the largest stakeholder in this arena is the U.S. gaming industry, which across 40 states, generates nearly $73.5 billion in annual income. Certainly, those stakeholders would have a built-in economic incentive (and strong desire) to assist states in their quest to legalize sports betting by partially or wholly funding future litigation efforts. After all, legal sports betting would be an economic juggernaut to the gaming industry. It is estimated that legal sports betting in New Jersey would have generated over $1 billion in annual gross gaming revenues for New Jersey's racetracks and casinos. For a state like Mississippi, with more than three times the number of commercial casinos and the allure of the Gulf Coast, the potential economic reward is even greater. The gaming industry, if called upon, would likely embrace the opportunity to participate in this fashion, given the significant economic boost that legalized sports betting would provide to gaming venues. Call it a true "public-private partnership," if you will.

Posted By : Daniel Wallach

Colin Kaepernick

Message posted on : 2016-08-30 - 10:01:00

I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.

As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)

Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.

Posted By : Howard Wasserman

The Business of Amateurs: Suffering Student-Athletes and a Thriving NCAA

Message posted on : 2016-08-26 - 14:02:00