* * *

As I devoured SI's fantastic Jim Tressel reporting and the avalanche of stories covering Tressel's resignation from Ohio State University, I kept thinking back to the concept of age limits in the NBA and other leagues, even though the age limit issue is not precisely implicated in the Tressel case.

Amid all the alleged details of no-show jobs, tattoos-for-memorabilia, small cash gifts and cars (oh so many cars), I asked myself two questions:

1) Why do we care about this?

2) Why are these players in college?

* * *

The [NBA] has made noise about upping it to 20, a move the players' union has said it opposes, even though the union does not represent players outside the league. Some members of that union — marginal veterans — have at least a slight interest in keeping the best 18-year-olds out of the league, right? Sources close to both sides have said the age limit is a very minor issue amid the collective bargaining talks, so it's unclear exactly what the rule will look like a year from now.

Alan Milstein is a lawyer who represented Maurice Clarett in the Ohio State running back's suit against the NFL's age limit, and he has said before that he is looking around for the right player to challenge the NBA's rule. Milstein told me today that any move to increase the age limit will accelerate his fight against it. “If they add another year, I have absolutely no doubt that somebody will be ready to challenge it,” Milstein said. “It will certainly make the pool of potential litigants bigger.”

* * *

It always takes something like this -- something like the horrifying sight of Buster Posey lying there, face in the dirt, writhing in pain -- to get folks talking. Why is that, anyway?
Now, after the fact, people are asking what we can do to protect both catchers and baserunners from these scary two-vehicle pileups at home plate. NOW, in retrospect, people wonder if there's a way to tweak the rulebook in the name of safety. So here's a question: How come, in baseball, we never seem to have conversations about what we can do to prevent these moments BEFORE they happen? Why is it always after the fact?

On behalf of Hinshaw & Culbertson LLP and Brewer Sports International, we are pleased to invite you to the Sports Law for Rookies and Veterans seminar on Friday, June 17, 2011, located in downtown Minneapolis. This unique program represents the intersection of issues in professional and amateur sports, media, and the law. We have assembled a panel of industry leaders from across the country including Superagents Drew and Jason Rosenhaus, Minnesota Timberwolves Chief Marketing Officer Ted Johnson, sports radio host Henry Lake and representatives of the NFLPA. The program will include a special lunchtime presentation of the “Champion's Code” from best-selling sports author Ross Bernstein.

We are pleased to offer this complimentary seminar, with lunch provided, to you and another guest within your organization. Attached please find additional details regarding the program. To RSVP, please use the link on the attached or contact Marie Pocock of Hinshaw & Culbertson LLP at mpocock@hinshawlaw.com or 612-334-2512.

Please note, this exclusive program is by invitation only and space is limited. Should you have more than one person from your organization that would benefit from this event, please contact Marie.

Finally, this seminar is the official kick-off for the 6th Annual JBF Worldwide Blue Carpet Celebrity Weekend. Please visit www.jbfworldwide.org for more details (or the event's Facebook page). We welcome you to stay the weekend and support the great things that JBF is doing around the world. For your convenience, a block of guest rooms has been reserved at Le Meridien Chambers. Reservations must be made by Friday, May 27. Please be sure to reference the Brewer Sports International room block to receive the discounted rate.

We hope you will consider taking time out of your busy schedule to join us for this exciting program. Please feel free to contact either of us with any questions.


Truly,

Steven H. Silton Hinshaw & Culbertson LLP

Jack Brewer Brewer Sports International

Tactically, the NBA players' union may have learned from its NFL counterparts' struggles before the U.S. Court of Appeals for the Eighth Circuit. The NBA players' union may believe that its legal claims would fare better before the NLRB than they would before federal judges, even federal judges who preside over a different federal circuit than the Eight Circuit. As a result, the players' union may be trying to accelerate the NLRB's review process and to put the league on the defensive.

The NBA players' union is also in a different situation than the NFLPA, which by virtue of its collective bargaining agreement with the NFL, had to decertify before the CBA expired in March or wait until September to do so. By decertifying, a players' union can bring antitrust claims against the league and more readily get courts involved. The NBA players' union is not under the same pressure to decertify and thus may prefer to first seek redress before the NLRB.

This league has a habit, and I am just going to say habit, of producing some pretty incredible story lines. Last year it was Abe Pollin's widow and this year it was a 14-year-old boy and the only thing we have in common is we have both been bar mitzvahed. We were done. I told Kevin: 'We're toast.' This is not happening for us and I was right.

7. Will the players stay unified during the lockout?
If the players lose before the Eighth Circuit next month, the unified players' front may splinter into factions. Here's why:

The major advantage for players to decertify was that it empowered them to bring a very threatening antitrust case against the league. Decertification meant that the NFLPA no longer represented NFL players in negotiations with the NFL over employment conditions. As a result, the federal labor exemption, which immunizes collectively bargained rules from antitrust scrutiny, was taken off the table, thus exposing core parts of NFL football -- the draft, the salary cap, restricted free agency, etc. -- to antitrust review. The NFL is very vulnerable to losing an antitrust case, and a loss would command that the owners pay treble damages, likely in the billions of dollars.

The decertification strategy seemed successful on April 25, when Judge Nelson issued a preliminary injunction against the NFL lockout. The injunction meant the lockout was lifted, the league had to figure out new employment rules which would prove compatible with federal antitrust law and players were positioned to eventually win their antitrust litigation. The players, in other words, had all the leverage.

Everything changed April 29, when the Eighth Circuit granted the temporary stay of the preliminary injunction. If the Eighth Circuit rules in favor of the league next month, and assuming neither the Eighth Circuit grants an en banc rehearing nor the Supreme Court favorably intervenes on behalf of players, the antitrust litigation path would essentially be punted to 2012 or beyond, when a trial on Brady v. NFL might happen. By that time, some current players will be too old to play; others might fail to stay in top condition and not be able to get it back.

Such a situation could cause the players to rethink the decertification strategy and possibly contemplate recertification.

One leading reason to remain decertified is that recertification would support the NFL's argument that decertification was a sham. The NFL has filed an unfair labor practices charge with the NLRB on such a ground; the NLRB will likely decide on the charge by early next year. If NFL players recertify soon after their antitrust strategy failed, it would imply that decertification was only pursued to bring an antitrust case. That would play right into the owners' wheelhouse for the NLRB charge.

But there are downsides to remaining decertified. Foremost, players have abandoned the collective bargaining framework and are essentially acting on their own or, if they so choose, as factions of players. There is already discussion of players abandoning the NFLPA/Brady litigation and pursuing their own strategies, with their own attorneys and advisors. Expect that discussion to only amplify should the Eighth Circuit rule against the players in June. The NFLPA cannot prevent any players from negotiating with teams or the league; recertification would be required to do so. The NFL could take advantage of that situation by reaching a deal with one group of players and those players then convincing others to recertify, but perhaps with different NFLPA leadership in place.

This situation is unique and could place the NFLPA in a difficult position. Normally when there are splinter groups of employees, the employer takes a major risk by speaking with them, because Section 9(a) of the National Labor Relations Act commands that the employer speak to the duly-elected union representatives. Here, however, the NFLPA maintains that it has disclaimed interest in representing NFL players. In fact, if the NFLPA now tries to deny a splinter group a seat at the table, the NFL could argue this supports its position that the NFLPA's disclaimer was a sham.

Then again, the NFL may be wary of meeting with the splinter group. If the league does so, it could signal that the NFL acknowledges that the NFLPA has disclaimed interest in representing NFL players. Such a signal would undercut the league's argument to the NLRB that the decertification was a sham and that the NFLPA only decertified for purposes of bringing an antitrust case.

In short, if the players lose before the Eighth Circuit next month, the players and the league will have to think long and hard, not only about what to offer in a negotiation, but with whom to negotiate.

VLS's New Sports Law Institute Gives Students Opportunities in Sports, Law and Business

"Sports law has an emerging role in legal education and will continue to gain importance," McCann said. "It encompasses a wide range of legal topics, including antitrust law, labor law, intellectual property/licensing, contracts, commercial law, business law, immigration law, property, torts and criminal law. That breadth makes sports law an excellent device for studying the law. Sports law is also a valuable learning tool because it presents complex legal issues in fact-patterns that students generally find approachable and understandable. Our focus ranges from the ski and snowboard slopes in Vermont to the parks, courts, rinks and fields found in the big leagues and minor leagues all over the country."

Major League Baseball is examining a procedure performed on Yankees right-hander Bartolo Colon last year that involved stem cells being injected into his painful shoulder and elbow, according to The New York Times.

Joseph R. Purita, an orthopedic surgeon in Boca Raton, Fla., told the newspaper he flew to Colon's native Dominican Republic and helped a team of doctors there with the treatment on the 2005 AL Cy Young Award winner. He said he has used Human Growth Hormone in the procedure before, but not in this case with Colon.

HGH is banned by Major League Baseball.

* * *

Purita told the Times he took fat and bone marrow stem cells from Colon and injected them back into his elbow and shoulder.

"This is the future of sports medicine, in particular," he said. "Here it is that I got a guy back playing baseball and throwing pitches at 95 miles an hour."

This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer's FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.

A lengthy investigation into the optimal standard of review for instant replay in sports might seem frivolous. But it serves a deeper ambition. We are in the early years of sports' colonization by econometricians, as legal theorists remain watching from the sidelines. That is unfortunate. Formal organized sports are, in effect, legal systems, and legal theorists might find much both to teach and to learn by paying closer attention to competitive athletics. In short, legal theorists would benefit from a sustained engagement with what I have termed, in previous work, "the jurisprudence of sport" As a case study in this nascent field, this essay reveals that the problem of appellate review in sports is surprisingly rich and complex. But it shows more than that. The jurisprudence of sport maintains that sporting practices and norms can teach lessons for ordinary legal systems as surely as the other way around. Illustrating that claim, this essay draws from football replay practices an argument to reform the criminal trial system to accommodate two verdicts of acquittal, not one.

Neil Cornrich, Prince's agent, said in a statement that Prince was “appreciative of KSU's willingness to structure the settlement in such a favorable manner.”

Cornrich contends the settlement is a “significant financial advantage” for Prince compared to the $3.2 million buyout. Those payments were not scheduled to start for almost five years and would not be fully paid until Dec. 31, 2020.

“Discounted to present value, the $1.65 million settlement figure essentially represents an agreement to pay Coach Prince almost the entire $3.2 million termination payment,” Cornrich said. “Coach Prince will receive these funds upfront and almost nine years earlier than they were originally due.”

* * *

Judge Susan Nelson. Do NFL owners now regret Judge David Doty's removal?

4. So what would you recommend the NFL do?

First, NFL teams should re-open business without any physical or other obstructions to players. A court has told the league to resume operations. It should do just that and not pull any gimmicks. It may be an awkward time for teams and players, but only if they let it be.

Second, the NFL should -- for the time being -- not employ a salary cap, meaning teams should be able to sign free agents without restriction. Teams would still be deterred in their spending because a new CBA will eventually be reached and it will contain a salary cap -- no team wants to be way over the cap when the new CBA is put in place.

Third, teams should remove franchise tag designations and other restrictions on players' free agency rights. History should convince the league of this point: the NFL has lost antitrust cases involving unilaterally imposed restrictions on movement of free agents between teams. Judge Nelson notably stipulated that teams are not obligated to sign free agents. In one respect, that stipulation benefits teams since they cannot be alleged to have engaged in a group boycott under federal antitrust law by not signing free agents. But as a matter of practice, the stipulation may not prove meaningful: teams may not be legally obligated to sign free agents, but if they don't, their competitors will. . . .

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/27/judge.ruling.qa/index.html#ixzz1KnLWh91y

Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!

Here's the info:
Thursday, April 28, 2011
1:00 p.m. – 2:00 p.m.
Room WA10

About our speaker:

Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents. Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.

Notable former clients of Josh Luchs include:

Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).

Please RSVP to nylawsports@gmail.com.

• NBA players may be less able to show irreparable harm caused by a lockout.

Another factor in a trial judge's decision to grant a preliminary injunction is whether the plaintiffs -- be they NFL players or NBA players -- would suffer irreparable harm if the injunction is denied. Irreparable harm refers to a harm that cannot be adequately remedied by money damages.

Nelson, in relying on numerous affidavits, including from such prominent player agents as Neil Cornich and Tom Condon, determined that NFL players would suffer irreparable harm if they missed the 2011 season. During that time, players would age, and given that NFL players are usually in their 20s or early 30s and usually only play a few seasons, missing just one year of football might be akin to the typical person, who normally works decades in his/her lifetime, missing many years of work. Players would also lose out on conditioning and training opportunities. And as Nelson ruled, free agents are hurt even before a missed 2011 season since they cannot sign with teams during a locked out off season. She also found that 2011 rookies would be particularly hurt by a lockout since they would return in 2012 after missing a year of football -- in both the pros and college -- and then be expected to compete with 2012 rookies, who would be fresh off playing in college.

Most of Nelson's logic holds true for NBA players, as well. In fact, to advance her reasoning on irreparable harm, she cited Spencer Haywood's successful antitrust suit against the NBA in 1971. Haywood, one of the best players in the rival American Basketball Association and then a signee of the Seattle SuperSonics, was barred from entering the NBA until four years after his high-school graduation. The NBA's restriction had not been collectively bargained and was thus subject to antitrust law. A court found that he would suffer irreparable harm by missing four years of playing in the NBA.

The presence of alternative employment opportunities in pro basketball, however, could sway a different judge, particularly one who is more inclined than Nelson to favor the league's views. Indeed, if the NBA instituted a lockout, some players would likely seek and obtain comparable employment in Europe and elsewhere. While those leagues impose restrictions on the number of U.S. players allowed on rosters, the restrictions could be changed in the event of the supply of available NBA players suddenly surges on July 1. The NBA would argue that irreparable harm should not be found if players can pursue comparable opportunities elsewhere.

In response, however, NBA players would likely cite the Haywood case: even though Haywood could play professionally in the ABA, a court nonetheless found that he suffered irreparable harm by not being able to play in the NBA. NBA players would probably also charge that playing and living abroad should not constitute an equivalent employment opportunity to playing in the NBA and living in one's home country.

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/26/nfl.ruling.nba.impact

8. What effect, if any, does Judge Nelson's ruling have on the NBA?

The collective bargaining agreement between the NBA and the National Basketball Players' Association (NBPA) will expire on June 30. Just like we saw last month with the NFLPA and the NFL, the NBPA is poised to decertify and the NBA is poised to institute a lockout.

On one hand, Judge Nelson's ruling sends a warning to the NBA and its owners that, at least in her view, antitrust law holds a dim view of lockouts and that judges should not wait for the NLRB to decide on unfair labor complaints.

On the other hand, the NBA is in a very different situation.

For one, the NFL's legal argument has been hampered by the fact that not one NFL team can show that it is losing money. The inability of a team to do so suggests that enjoining the NFL lockout would not force an NFL team to lose money. The NBA, in contrast, asserts that 22 of its 30 teams will lose money in the 2010-11 season, and the league is willing to open the books to prove it. A court decision to lift a lockout instituted by the NBA would therefore subject NBA teams to losing money in the 2011-12 season. Such a consequence could motivate a judge reviewing an NBA lockout to be less willing than Judge Nelson to lift the lockout.

Second, irreparable harm may be more difficult for NBA players to show, since unlike NFL players who can play nowhere else and earn an NFL-quality income, some NBA players would be able to secure lucrative contracts in Europe and elsewhere during a lockout. If NBA players can't show irreparable harm, they would not be able to convince a judge to enjoin an NBA lockout.

Third, Judge Nelson's decision would not bind a court that reviews the NBA lockout. In fact, it is likely that such a court would be in New York, where both the NBA and NBPA are located. The NFL and NFLPA are litigating the lockout in Minnesota because the parties choose to do so in their collective bargaining agreement.

Bottom line: while Judge Nelson's ruling likely caused some concern for NBA teams, the NBA is in a very different situation and a lockout may be viewed more favorably by a court.

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/25/nfl.lockout/

McCourt could also emphasize that other ownership groups have demonstrated numerous failings -- be they professional or personal -- and yet Selig has not exiled those owners from their teams. For instance, Selig has allowed Mets owner Fred Wilpon to remain in charge despite his exposure to lawsuits brought by victims of Bernie Madoff. McCourt could probably find other instances of owners having some combination of financial, legal or family troubles, or instances of fans outside other clubs' stadiums who have been hurt due to inadequate security. His goal would not be to slander other owners, but rather to portray his problems as far from extreme and certainly not worthy of expulsion from MLB.

* * *

In addition to the "best interests of the game" clause, MLB could also highlight the "waiver of recourse" clause found in the MLB constitution. The waiver of recourse clause prevents clubs from engaging in litigation against the commissioner, the league or other owners. Indeed, by virtue of becoming a franchise owner, an owner waives away the right to seek remedies that would normally be available through the legal system. The clause also compels owners to resolve their differences internally and to accept the commissioner's judgment as binding.

Waiver of recourse clauses can be found in a wide range of business contexts. Generally, it is difficult for purportedly aggrieved parties to overcome these clauses, especially if the clauses were freely and voluntary negotiated by sophisticated business parties (all of which would hold true with McCourt in his purchase of the Dodgers).

A waiver of recourse clause helped MLB prevail over Finley. The court held Finley could only overcome the clause if he could show that commissioner Bowie failed to follow baseball's internal rules or violated basic due process. Basic due process requires the commissioner to act fairly and not arbitrarily or with bias; the furnishing of fair notice, use of substantive hearings, reliance on neutral experts and uniform application of consistent rules all help the commissioner show that a fair and substantive process was used.

* * *

To read the rest, click here

Home runs in the thin air of Denver's Coors Field still count the same as the ones hit at sea level in Boston. And records set by Barry Bonds, Mark McGwire and Roger Clemens still stand (see Bud Selig's comments from today about Bonds and his records), even though there's reason to doubt that they were achieved honestly.

In track and field, though, the fastest time is not always the record time, as those who followed the Boston Marathon this week learned when Geoffrey Mutai of Kenya ran the fastest 26.2 miles in history.

Mutai's time of 2 hours, 3 minutes, 2 seconds was almost a minute faster than what had been – and likely will remain -- the world record: a 2:03:59 run by Haile Gebrselassie in Berlin in 2008. Likewise, Ryan Hall's 2:04:58 was 40 seconds faster than the American record set by Khalid Khannouchi nine years ago. But because the finish line in Boston is 459 feet of elevation below the starting line in Hopkinton, times set on the historic course are ineligible for records – no matter much uphill running there is between them. Boston is also a point-to-point course; the international and U.S. governing bodies prefer loops, because if you finish near where you start it doesn't matter how much time you run with the wind at your back, you have to go about the same distance with it in your face. It's like “What goes up, must come down,” except horizontal.

Those who follow running say this is an accepted part of the culture. When someone breaks the record in the 100 meters, for example, the first thing the crowd will do is look to the anemometer to see if it was wind-aided, much like a football fan looks for a penalty flag before celebrating a touchdown. So it is not uncommon for a world record to be different – slower -- than the “world best,” and the running community has accepted this.

The goal of these rules is to certify only records set in regular competition, not “tricked-up” courses designed specially for fast times. It's possible, as a scientific exercise, to pick a 26.2-mile section of the interstate that runs slightly downhill, wait until the wind is blowing in the right direction, and fire the starting gun. It is likely that the 2 hour barrier could be broken, but that would put the record out of reach of future, real marathons. And that is what the IAAF is trying to avoid.

It's hard to argue that wind wasn't a factor in Mutai's run. The tailwind at the start was announced at 21 mph. Anyone who's run Boston when the wind comes in from the Atlantic Ocean knows that it's a time-killer. And the fact that another runner, Moses Mosop, also beat Gebrselassie's time – and two more men broke the Boston course record – gives a sense of how much the wind might have affected the race. That doesn't taint the competition because it affects all competitors equally. But when you start measuring one race against another, which is the goal of a record book, it can be like comparing apples and herring.

Still, there is some inconsistency in the governing bodies' position. They will certify races run with “rabbits,” who are hired to run a fast and steady pace and even shield the top runners from the wind. Gebrselassie's Berlin win in 2008 was set up for him to break the record, and he did. Runners insist that this is a much bigger advantage than a tailwind, or a 459-foot drop in elevation. The IAAF also allows Boston times to be used to meet Olympic qualification standards, and USA Track and Field will let Hall into the Olympic trials based on Monday's run.

In the end, there's something just plain odd about saying that the Boston Marathon, long considered one of the toughest races in the world, is too easy to be eligible for a world record. Only three times before in history had a world record been established in Boston, all of them before the IAAF refined the rules about eligible courses. So while it has long been known that a time run in Boston would not count for a record, no one seems to have worried much about it because it was unlikely to come up. Then Mutai blistered the course on Monday. B.A.A. officials said they would apply to have the record certified, even though it's clear the IAAF can't do that without changing its rules. Rob de Castella, who won Boston in 1986, called on the governing bodies to recognize the record; this could be done either by grandfathering Boston in or by refining the rules to allow courses that go both up and down to have a larger drop in elevation.

In the meantime, we are likely to see a repeat of the debate that surfaces whenever the bright-line rules of a sport conflict with what we might more intuitively consider the right outcome. We saw it with the Tuck Rule, and with Armando Galarraga's near-perfect game. A lot could depend on which feat the running community views as the real record and how the times are described in common parlance.

One thing is clear: the B.A.A. isn't going to change its 115-year-old course to suit the IAAF. As executive director Tom Grilk told the AP the day after the race: "If somebody wants to put up a dome and chase Swifty, the rabbit from Wonderland (dog track), around, God bless them. We'll keep doing what we've been doing for 100 years: Firing off a gun and saying, 'Go.'"

A World Series Legal Career: San Francisco Giants' Boss Bill Neukom to Discuss Law, Sports, Business

April 20, 2011

* * *

"Appeals are hard,'' said Vermont Law School professor Michael McCann, who specializes in sports law.

McCann and many other legal analysts said the Bonds defense team has its work cut out in flipping the jury's verdict. U.S. District Judge Susan Illston, who presided over the trial, is rarely overturned on appeal and observers said she deftly handled Bonds' three-week trial.

"An appellate court is always reluctant to overturn a trial judge with a good reputation who ran a good trial,'' McCann said. "Judge Illston was really deliberate on everything she did and the appellate court will recognize that.''

* * *

Stanford Law School professor William Gould said it will be difficult to say persuasively that the obstruction conviction is incompatible with the other charges just because the other lack verdicts.

"It's hard to argue there are mutually exclusive charges when you have only a verdict on a single charge,'' Gould said.

* * *

• Rich Ensor, Esq. (MAAC Commissioner)
• Chris Monasch, Esq. (St. John's Athletic Director)
• Kim Keenan-Kirkpatrick, Esq. (Seton Hall Associate Athletic Director for Compliance)
• Bruce Rosen, Esq. (McCusker, Anselmi, Rosen & Carvelli)
• Daniel Brown (Sheppard, Mullin, Richter & Hampton)
• Kerry Cahill (former student-athlete)

Cleveland-Marshall College of Law

Entertainment and Sports Law Symposium

The Legal Evolution of Professional Golf and Tennis


Friday, April 15, 12 p.m.- 5 p.m.


C
Posted By : Michael McCann

But federal prosecutors convict 90 percent of indicted defendants. Shouldn't they have done better here?

This question begets big picture and small picture responses.

Big picture first. While the 90 percent statistic has received a good amount of attention, it does not speak to considerable differences in wealth among indicted defendants and the possible impact of those differences on trial outcomes. Bonds possessed the wherewithal to assemble a team of leading defense attorneys, from different law firms and with complementary skills. The vast majority of indicted defendants, in contrast, cannot afford a "team" of lawyers. In fact, according to statistics provided by Department of Justice in 2000, 66 percent of federal felony defendants are represented by court-appointed counsel. Also, and less important, the 90 percent conviction rate is for all crimes; the federal government's success rate in perjury trials is slightly lower, at about 85 percent. . . .

* * *

When will Bonds be sentenced and how long will he be sentenced?

First, the defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so, as she would have to conclude that the jury was unreasonable in finding Bonds guilty.

Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.

During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.

Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.

Even if "only sentenced" to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.

If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.

* * *

I wrote a law review article on the subject in 2009 evaluating enrollment multipliers in high school sports entitled Prep Plus: Evaluating the Motivations for and Effects of Enrollment Multipliers and Other Measures in High School Sports¸ 10 Tex. Rev. Ent. & Sports L. 1 (2008). I have also written about the topic in this space back in 2006.

The multiplier has been in effect in Illinois for five years now, and last week, Illinois State Representative Michael Connelly of the Illinois House of Representatives has reignited the bitter debate over the IHSA's use of an enrollment multiplier for high school athletics competition. Representative Connelly has proposed an Amendment to House Bill 2392, which forbids the use of multiplier or multiplier-like devices in the determination of classification for athletics competition. The amendment has gained twenty-five co-sponsors thus far. The amendment requires that competition classes be established based solely upon actual enrollments of boys and girls for respective sports (e.g. boys' enrollment determines football class). An identical form of the bill is making its way through the Illinois Senate in the form of Amendment to Senate Bill 624.

Historically, both proponents and opponents of the enrollment multiplier have sought a level playing field, but the arguments are strikingly adverse. Proponents of the multiplier denote that because parochial, private, charter and magnet schools are not bound by pre-determined school districts, these non-boundaried schools draw from a larger pool of students, and, as a result, gain a competitive advantage. Opponents argue that enrollment multipliers create unfair “David vs. Goliath” matchups that are inherently prejudicial.

The arguments being advanced in Illinois this time around are essentially the same. In a letter directed to high school principals, the Executive Director for the IHSA, Dr. Marty Hickman, stressed that a number of non-boundaried schools have won championships since the implementation of the multiplier. Thus if the goal of the multiplier was to lessen the amount of championships won by non-boundaries schools, thereby bringing the numbers of non-boundaried schools winning championships more in line with the proportion of non-boundaried schools in the IHSA, Dr. Hickman is admitting that the multiplier has failed.

Dr. Hickman also urged opposition to the Amendment on the basis that it usurps principals' governance and oversight power of the operations of the Association. The IHSA, as the governing body for high school athletics in Illinois, clearly sides with public institutions here.

Representative Connelly and his co-sponsors will argue that Dr. Hickman's contentions ignore the other end of the spectrum. While it is true that large parochial schools enjoy significant athletic success in Illinois, smaller private institutions with no history of athletic prowess are often forced to compete against public school powerhouses, leading to lopsided results that benefit no one. Also, the fact that large private schools are still achieving exemplary results indicates that the multiplier is disproportionately affecting the schools with small student bodies and even smaller budgets.

The Amendment was proposed by Representative Connelly on April 1, 2011 and has yet to be debated by the General Assembly. The rhetoric already emanated suggests that it will be furiously contested. With staunch bipartisan support on both sides of the fence, it will be interesting to see if this proposed legislation will be implemented.

Boston College Law Review

current issue

Here are some of the comments of the three national commentators:

Law professor Michael McCann, who is sports law institute director at Vermont Law School, SI.com columnist at Sports Illustrated and co-founder of Harvard Law School's "Project on Law and Mind Sciences," believes that Hall of Fame voters should have a chance to consider Rose on their ballots.

He said an exception could be carved out for Rose to be removed from the permamently ineligible list, because it was Baseball -- not some court order or decision -- that placed him on the list to begin with. If Baseball approached it in a deliberate way, and was mindful of all parties' due process in the matter, the exception could be made.

But McCann doesn't think Rose will make it.

"The (2004) book ('My Prison Without Bars,' in which Rose admitted he bet on baseball), "may have cost him that shot," McCann said. "He did himself a disservice. ... Like all things in sports and in life, it's the coverup that really upsets people."

National editorial-page columnist George Will: "Gambling is the scarlet sin in baseball, (going back to 1919). ... Forgiveness is a virtue, but there's a difference between people forgiving him in their hearts and Baseball forgiving him (for the purpose of clearing his way to the Hall of Fame). Clearly, Baseball is in a pickle. The all-time home run leader (Barry Bonds) and one of the greatest pitchers ever (Roger Clemens) and the all-time hit leader (Rose) are not going to make it. It is a blow to the Hall of Fame ... To get Rose in (posthumously), you'd have to pair him with Shoelesss Joe, and even then it would take a Solomonic commissioner (to explain it)."

Historian James Reston Jr., author of "Collision at Home Plate: The Lives of Pete Rose and Bart Giamatti."

"I think Rose dishonored the game and himself. I don't think he should be in (the Hall of Fame Gallery, where the plaques are displayed), but I think Cooperstown is one of the most important museums in America, and that the whole Pete Rose thing of performance on the field and the scandal ... should be prominently displayed. It's a great way to (give exposure) to why betting on baseball is such a cardinal sin."

Reston said he agreed with the original drafting and enforcing of baseball's rule on betting that there is no distinction to be drawn between betting on ones team or against it.

"The central point is that when I buy a ticket am I seeing an authentic display of skill?," he said. "There can't be any hidden factors, whether it's (steroids) or somebody with a bet on the outcome."

He had harsh words for Baseball's higher-ups and the Hall of Fame, however, for treating Rose as a "persona non grata."

One can give Rose the full treatment in Cooperstown without having to issue a formal forgiveness for purposes of giving him a plaque, Reston said.

* * *

3. What are the prosecution's chances for landing a conviction?

The odds are stacked against the prosecution. Despite the years they have had to prepare for this trial, prosecutors struggled to make the case that jurors should believe -- beyond any reasonable doubt -- that Bonds knowingly lied under oath.

Most damming, purportedly compelling government witnesses -- Kimberly Bell, Steve Hoskins and Ting -- contradicted one another and collectively gave the impression of a case built on unreliable memory, uncertain credibility and indirect evidence.

Should Bonds be found not guilty, the prosecution's decision to call Ting to the stand will be second-guessed for a long time. If prosecutors knew that Ting would blatantly contradict other witnesses, including in regards to conversations with Steve Hoskins and whether purported changes to Bonds' body were caused by steroids, why did they put him on the stand? If they didn't know of his testimony, why didn't they know? If Ting knowingly lied on the stand, then he should be charged with perjury. We'll see if that happens.

The jury also received mixed testimony regarding whether Bonds fully understood that Anderson provided him with substances that were classified as "steroids" under the law and Major League Baseball rules. If Bonds did not know that he was taking "steroids," then he did not commit perjury in saying that he never used steroids. A better characterization of the operative definition of "steroids" may have aided the prosecution.

Also, while jurors heard a recording that featured Anderson and Steve Hoskins discussing steroids and Bonds, the recording, limited by inferior sound quality, lacked the impact that was suggested by its transcript. A reading of the transcript may have proved more persuasive.

The government can still secure a conviction. Kathy Hoskins was a believable witness. The defense, moreover, declined to offer any witnesses or evidence to rebut her incriminating statements. If the jury reasons that Kathy Hoskins was telling the truth about Anderson injecting Bonds, it could decide to convict Bonds on Count Two.

But jurors may be wary of convicting Bonds based on the lone testimony of one, albeit credible, witness. They may also conclude that given the totality of limitations in the government's case, no conviction is warranted. In light of its decision to not call one witness, the defense seems to be banking on the jury viewing the case against Bonds on the whole rather than on the specific pros and cons of each count.

4. So couldn't the defense's decision to not attack Kathy Hoskins's testimony backfire?

Sure. Kathy Hoskins gave jurors every reason to believe her. Plus, during cross-examination, Bonds's attorney Cristina Arguedas was largely unable to connect Kathy with her less credible brother, Steve. Along those lines, jurors may have been expecting the defense to call at least one witness to the stand who would cast doubt on Kathy Hoskins. Without such a witness, jurors might reason that the defense simply had no one to challenge Hoskins. If so, they might find Bonds guilty on Count Two.

But the defense had a difficult decision to make. If they went after Kathy Hoskins, then the trial's focus could have become a referendum on Count Two and Hoskins's credibility. Such a development would have worked in the prosecution's advantage. Kathy Hoskins was prosecutors' best witness and Count Two was their strongest charge. By declining to call any witnesses, the defense instead hoped that jurors will find overall weakness in the government's case and thus find Bonds not guilty on all counts.

From Bird to Brady: Collective Bargaining in American Sports

Brought to you by The NYU School of Law IPELS Sports Law Committee

April 13, 2011, 12:30 - 1:45 pm
Greenberg Lounge, Vanderbilt Hall
40 Washington Square South, New York, New York

The biggest and most challenging issue facing American sports leagues today isn't criminality, career-threatening injuries, or even performance-enhancing drugs - it's collective bargaining. The stakes are high - for players, franchises and most of all fans. These issues have caused shortened seasons in the NBA and MLB, an entirely cancelled season in the NHL, and now threaten to delay the most profitable sport in the world - the NFL.

What will become of our beloved national pastimes? Hear from the professionals at the negotiating table and on the sidelines who are making these tough decisions, and ask the questions that America wants to know.

PANELISTS
James Quinn, Partner, Weil, Gotshal & Manges LLP and outside counsel for NFL players in the Brady v. NFL lawsuit
L. Robert Batterman, Partner, Proskauer Rose LLP and outside counsel for the NFL and NBA
Russ Granik, former NBA Deputy Commissioner
Jon Wertheim, Senior Writer, Sports Illustrated
Robert Boland, clinical associate professor of Sports Management, NYU Preston
Robert Tisch Center for Hospitality, Tourism, and Sports Management

MODERATOR

Jack Ford, CBS Legal Analyst

Please RSVP here:

https://spreadsheets.google.com/viewform?formkey=dDlucHZfTWRpNEVKY2RXWXJMel9Ya3c6MQ

Valuing Professional Sports Franchises: An Inside View of the Purchase and Sale Process Time:

Monday, May 2, 2011 from 5:45 pm to 7:00 pm

Description

Why are professional sports franchises such highly valued assets? Join us and hear industry experts explain 1) the metrics for determining such valuations, and 2) the legal and business issues that arise in the purchase and sale process. Then stick around for the Washington Nationals game against the reigning World Series champion San Francisco Giants!

The AEMS - Washington Nationals event has sold out the past two years. Limited seating is available, so do not delay. D.C. Bar staff will distribute the game tickets at Nationals Park the night of the event. Tickets must be picked up prior to the start of the panel discussion. ID is required for pickup.

Please Note: The program will be held in Conference Center Room #6 (behind section 201 on mezzanine level - left field side).

This Off the Record Evening Program is sponsored by the Arts, Entertainment and Sports Law Section.

Location

Nationals Park
1500 South Capital Street, SE, Navy Yard Metro
Conference Center Room #6
Washington DC 20003

Contact

Sections Office 202-626-3463

Speakers

Randall Boe, Executive Vice President, Monumental Sports*Entertainment

John Moag, Sports Investment Banker, Moag and Company, LLC

Michael Sopko, Moderator

Peter Zern, Partner, Covington & Burling LLP

To learn more about the panel, click here.

I wanted to let you know about a charity event I am hosting and running for Rutgers football star and Woodbridge, NJ resident Eric LeGrand. The event will be held on July 23 between 1pm-8pm and will feature a list of musical talents and influential sponsors.

Details on the event:

www.52Fest.com
ABOUT 52 FEST
DATE: Saturday, July 23rd 2011
TIME: 1pm - 8pm
LOCATION: THE FIELD BEHIND:
WOODBRIDGE HIGH SCHOOL / LIBRARY / HEALTH CENTER
1 Samuel Lupo Place Woodbridge, NJ 07095

52 FEST is a benefit dedicated towards Eric LeGrand, Woodbridge Township Resident (NJ) and Rutgers University Football Star.

The benefit will feature an array of musical talents and a list of influential sponsors. Proceeds will go towards renovations to Eric's house including a handicapped ramp, bathroom, and an additional room.

52 Fest is about progress, hope, growth, positivity, selflessness, love, and the ability to envision a brighter future. Through Eric's journey of perseverance, he has influenced the hearts, minds, and souls of many. Our only goal for 52 Fest is to impact Eric's life the same way he has ours.

- Elliot Solop, Joe Geis & Marisa Mendez

GET INVOLED:
http://www.52fest.com/
http://www.twitter.com/52fest
info@52fest.com

9. What about Eller v. NFL, the other antitrust lawsuit that was just filed?

Late last month, a class of retired and prospective NFL players filed a lawsuit, Carl Eller et al. v. NFL, with similar antitrust claims as found in Brady v. NFL. The lawsuit was filed in the same court as Brady v. NFL: the U.S. District Court for the District of Minnesota.

Eller v. NFL is different from, and potentially more threatening, than Brady v. NFL because neither retired players nor prospective players -- the plaintiffs in Eller v. NFL -- are bargaining members of the NFLPA. With the NFLPA decertified, moreover, it cannot represent the interests of the Eller plaintiffs. Put more basically, the NFLPA may be removed from the picture in Eller v. NFL, a point which would take away a key defense the NFL enjoys in Brady v. NFL.

In Brady v. NFL, the NFL contends that the plaintiffs, while members of the NFLPA, engaged in bad faith during the collective bargaining discussions to bring an antitrust lawsuit. But in Eller v. NFL, the NFL cannot argue that the plaintiffs engaged in bad faith to bring an antitrust lawsuit, since neither prospective nor retired players were among those who collectively bargained with the NFL.

Retired players, moreover, are arguably harmed by the lockout because NFL-sponsored programs that address the needs of retired players are partly financed by fines of NFL players. During a lockout, no NFL player will be fined, thus removing a funding source for these programs.

For their part, prospective players claim to be harmed by the NFL lockout because they are "boycotted" by competing NFL teams from using their football talents for compensation. They also emphasize that there is no substitute league for the NFL that would significantly mitigate their harm.

The NFL, however, will likely highlight decisions by courts which express that players' associations bargain not only on behalf of current players, but also on behalf of those not yet in the league and those who were already in the league. As a result, the NFL will maintain that neither college players nor retired NFL players have standing to bring a lawsuit: although the Eller plaintiffs are not formal members of the NFLPA, their interests are represented by those formal members.

In response, expect the Eller plaintiffs to insist that because the NFLPA is decertified, it cannot represent any players, be they prospective, current or past.

Eller v. NFL could become extremely important should Judge Nelson deny the Brady plaintiffs' motion for a preliminary injunction on Wednesday. The Eller lawsuit also asks for a preliminary injunction against the lockout, and depending on Judge Nelson's reasoning should she reject one in Brady v. NFL, it is possible that Eller v. NFL could open the door for a second bite at the lockout apple.

A Quick Review of Legal, Regulatory, and Contractual Issues in Boxing and MMA from the Past Several Weeks

Arbitrator Sends Donaire Back to Top Rank in a Flash: Unified bantamweight titlist and pound-for-pound entrant Nonito (The Filipino Flash) Donaire, fresh off of his crushing February 19, 2011 stoppage of Fernando Montiel, found himself at the center of the latest legal battle between Top Rank and Golden Boy Promotions in mid-March when he signed a multi-year promotional agreement with Golden Boy Promotions and filed a lawsuit against Top Rank seeking a declaratory judgment stating that he had no further obligations to Top Rank due to alleged breaches of contract. At the time, Top Rank felt that it still had a valid contract with Donaire and indicated that it would enforce its rights under the agreement. Sure enough, Top Rank did, and by the end of March, an arbitrator enjoined Golden Boy from promoting Donaire during the time remaining on his agreement with Top Rank. A message to all professional boxers in promotional agreements who wish to go elsewhere: Be very certain that your promotional agreement has either expired, or has been materially breached, under its terms before making any drastic moves. We'll find out in the coming months if WBA Light Heavyweight Champion Beibut Shumenov did just that, as he recently announced that he was severing ties with his promoter, Goossen-Tutor, and is seeking a declaratory judgment in a Nevada court to support his position.

Could Solis be a Loser Again in His Own Personal Battle of Wounded Knee?: It was widely rumored after his suspect first round stoppage loss to Vitali Klitschko on March 19, 2011 that Odlanier (La Sombra) Solis had covered up a pre-existing knee injury so that he would be permitted to fight. While his handlers vociferously rejected any such notions, the controversy begs the question of what could happen if an athletic commission suspended a boxer for failure to disclose an injury? In New York, Solis could be denied a license on three separate grounds if such a finding were made elsewhere. First, the New York State Athletic Commission is empowered to deny a license to anyone for “medical reasons.” Secondly, the Commission is empowered to revoke or suspend a license (though not expressly deny one) on the grounds that a boxer “has been guilty of or attempted any fraud or misrepresentation in connection with boxing[.]” Finally, New York could simply decide to recognize another commission's suspension and decline a license for that reason as well. In sum, if an adverse finding were to come out of Germany as to the outcome of the Solis-Klitschko fight, Solis may lose another battle or two because of his wounded knee.

Nevada Debating Bill That Will Hopefully Not Stay in Just Las Vegas: A bill was introduced in the Nevada State Legislature in late March that would attach fees to boxing tickets and funnel the money earned from same to the medical expenses for retired boxers. An amendment to the proposed bill also provides that promoters would have to carry $200,000 in catastrophic injury insurance, an increase of $150,000 from the current mandate. The proposed bill faces opposition from the Nevada State Athletic Commission, as Executive Director Keith Kizer reportedly believes that the additional fees and insurance coverage are both unrealistic and could have a chilling effect on professional boxing in Nevada. Whether the bill is successful or not, here's hoping it will lead to renewed dialogue about how to care for boxing's wounded warriors once their careers are over.

West Virginia Joins the MMAdness, Forest Lake Stops It: While West Virginia became the latest state to regulate MMA this past month, Forest Lake, Minnesota recently did its part to remain part of the nation's dwindling opposition to it. Following a several day showdown that pitted Forest Lake city officials against MMA promoter Vivid MMA, an amateur mixed martial arts event scheduled for April 2, 2011 was canceled pursuant to a local ordinance that makes it a misdemeanor offense to “permit or participate in the practice or promotion of ultimate fighting.” Between the vagueness of the ordinance as to what constitutes “ultimate fighting” and the Minnesota Combative Sports Commission's power to regulate MMA statewide, it would not surprise Standing 8 Court to ultimately see a legal challenge to the ordinance, which places Forest Lake distinctly out of sync with the rest of Minnesota.

New York Will Not Be Out of Commission After All: As first reported on “The Fight Lawyer Blog” on March 29, 2011, a provision in New York Governor Andrew Cuomo's proposed budget that would have resulted in the elimination of the salary of New York State Athletic Commission Chairperson Melvina Lathan was itself eliminated from the budget. The result is that the New York Athletic Commission will not lose Lathan as its Chairperson, at least not during the upcoming budget cycle. For more on the risks of cutting Lathan's salary and the New York State Athletic Commission's budget as a whole, please see “The Risks of Putting New York Out of Commission” at http://www.8countnews.com/news/125/ARTICLE/3401/2011-03-06.html.

“Forged Fight” Results in Two Early Casualties: The lawsuit between heavyweight contender Shannon Briggs and The Empire Sports and Entertainment Company has already resulted in two casualties before the pending motion to dismiss Briggs' complaint was even decided by the New York County Supreme Court. On March 21, 2011, it was reported that The Empire was withdrawing from the boxing business, leaving its former president, Greg Cohen, to form his own promotional company. The following day, it was reported in The Sun, a London newspaper, that Briggs announced his retirement from boxing via Twitter due, in part, to his disgust with the business of boxing. While The Empire's hasty withdrawal from the boxing world left the boxers it had under contract in limbo as promotional free agents, Briggs' departure from boxing marks the end of the career of one of the most explosive and charismatic heavyweights of the past 15 years. For more on the lawsuit that likely helped spark these recent events, please see “Briggs-Klitschko; A Forged Fight?” at http://www.8countnews.com/news/125/ARTICLE/3432/2011-03-12.html.

And Speaking of “Night of the Young Heavyweights” Alum Involved in Late Career Controversies: HBO's March 16, 1995 “Night of the Young Heavyweights” was supposed to introduce the world to both the undefeated Shannon Briggs and his similarly undefeated New Zealand counterpart David Tua. At the time, Briggs was regarded as such an uber-prospect by boxing cognoscenti that HBO did even both bother profiling his opponent, Darroll (Doin' Damage) Wilson, in its pre-fight review of the young heavyweights featured that night. However, while Tua did his part to say hello to boxing fans around the world that night by savaging future world titleholder John (The Quiet Man) Ruiz in perhaps the most explosive 19 seconds in heavyweight history, Briggs' momentum hit a massive pothole when he was shockingly stopped by the unheralded Wilson in three rounds. Fast forward to March 2011, and Briggs and Tua were again the talk of the boxing world this past month, although this time, both for negative reasons. As noted above, Briggs tweeted his retirement from boxing just a short period of time after filing a lawsuit against his old promoters/ business partners. Meanwhile, Tua was involved in a controversy of a different kind as his latest opponent, Demetrice King, was not paid for several days following his 10-round decision loss to Tua on March 19, 2011. The origin of the dispute was reportedly confusion as to who was responsible for King's purse and has since been resolved. Tua's opponents going forward, however, will likely be wary of committing to a fight with him if not provided with written upfront assurances that they will be paid in a timely manner. As a side note, while Tua went the distance with King, Briggs laid waste to King in two rounds back in 2005.

Team Mayweather Fails to Weather the Defamation Storm: United States District Judge Larry Hicks recently denied Team Mayweather's motion to dismiss the defamation suit brought by Manny Pacquiao on December 30 2009. The lawsuit, which was the result of a host of allegations concerning Pacquiao's alleged use of performance enhancing drugs, was kept alive after Judge Hicks found that Pacquiao “sufficiently pled malice[,]” the key element in a defamation suit filed by a public figure. For Standing 8 Court's initial thoughts and commentary on this lawsuit, please see “How Team Mayweather May be Able to Weather the Defamation Storm” at http://www.8countnews.com/news/138/ARTICLE/2192/2010-01-01.html.

Pac Man Allows Fans and Skeptics to Gobble Up His Supplements: In an apparent response to lingering questions as to Manny Pacquiao's use of dietary supplements and/or performance enhancing drugs, Pacquiao's conditioning coach Alex Ariza told FIghthype.com in mid-March that he would begin providing information on all of the supplements provided to Pacquiao on Team Pacquiao's official website. Sure enough, a quick look at “Ariza's Training & Diet” blog on the “Official Manny Pacquiao Website” reveals several postings by Ariza detailing exactly what supplements he has been providing to Pacquiao. Whether Ariza's blog provides full disclosure will be revealed by the Nevada State Athletic Commission and the drug testing it will administer to Pacquiao in advance of, and immediately after, his May 7, 2011 bout with “Sugar” Shane Mosley. For more on drug testing in professional boxing, please see “The Rules Regarding Blood That May Put Mayweather-Pacquiao in the Crypt” at http://www.8countnews.com/news/125/ARTICLE/2169/2009-12-23.html and “Has the Mayweather-Pacquiao Drug Controversy Touched on The Cure for a Lack of Uniform Rules?” at http://www.8countnews.com/news/138/ARTICLE/2209/2010-01-07.html.

Can UFC's Acquisition of Strikeforce Create Trust Issues with the U.S. Government?: The UFC made another substantial step towards assuring its continued supremacy on the U.S. MMA scene in early March when it acquired rival promoter Strikeforce. After UFC's announcement of the merger, internet chat boards were abuzz about its implications. At least some of those chat boards also hosted debate as to whether UFC's acquisition raises any anti-trust concerns. While it may be premature to suggest UFC has an actual monopoly on the promotion of MMA in the United States, the Clayton Anti-Trust Act makes it illegal to partake in mergers and acquisitions that substantially reduce market competition. In the event that MMA becomes a priority for the U.S. government, therefore, an anti-trust claim may be one way they can endeavor to go after the UFC. Given the proliferation of MMA promoters throughout the country and the nation's increasing appetite for MMA, however, such a claim would likely face a difficult battle in court.

Morals Clause Alert Turns Out to be False Alarm in Germany: In late March, a German court overturned the assault conviction of WBO Light Heavyweight Champion Jurgen Brahmer on appeal citing a lack of evidence. The reversal means that Brahmer will not be facing a 16 month prison term any longer for purportedly hitting a woman during a bar fight, and clears him to focus solely on his upcoming title May 21 title defense against Nathan Cleverly. It also means that his management and promotional teams need not spend any more time reviewing any morals clauses or tolling provisions that might have in their respective agreements to evaluate how to protect their interests during, or as a result of, Brahmer's incarceration. For more on the use of morals clauses and tolling provisions in boxing contracts, please see “Throwing Stones When Living With a Glass Jaw?” at http://www.8countnews.com/news/138/ARTICLE/1872/2009-08-31.html and “Toll Road Back to Ghost Town?” at http://www.8countnews.com/news/138/ARTICLE/1968/2009-10-05.html.

Nevada Believes Silva Took a Leak on Their Drug Testing Protocols: UFC light heavyweight contender Thiago Silva is scheduled to appear at a suspension hearing before the Nevada State Athletic Commission on April 7, 2011 after allegedly submitting a urine sample “inconsistent with human urine” following his January 1, 2011 victory over Brandon Vera at UFC 125. Silva has not yet been suspended, and has 20 days after his receipt of any complaint to answer same. If it turns out that the urine actually came from a rooster and not Silva, Standing 8 Court will consider his actions a step backward in the battle to stop comparisons between MMA and cockfighting.

Reverse Sanctioned Offenses Alert in Germany: Back in January, the British Boxing Board of Control (the “BBBC”) advised that it would not approve WBA Heavyweight Champion David (The Hayemaker) Haye's mandatory challenger Ruslan Chagaev for a license due to his history of hepatitis B. Not satisfied with the BBBC's decision and its implications, Chagaev's promoter, Klaus-Peter Kohl, is now threatening the WBA with a lawsuit if it does not compel the bout to take place. Kohl notes that Chagaev participated in a sanctioned WBA eliminator and paid the fees for same in support of his position, but fails to acknowledge the weight that the BBBC's decision may have placed on the WBA's own decision making process since the eliminator.

Did Jose Canseco Find a Way to Scandalize a Second Sport?: In 2005, would be Hall-of-Fame baseball player Jose Canseco sent shockwaves through Major League Baseball with his tell-all account of steroid use in professional baseball. He now may have found a way to scandalize the next sport he decided to try out, celebrity boxing. It was widely reported in late March that Canseco quietly sent his twin brother, Ozzie, to participate in a celebrity boxing match at the Seminole Hard Rock Hotel & Casino in Hollywood, Florida in place of him. Canseco purportedly denied the allegations in a telephone call with the New York Post and placed the blame squarely on the card's promoter, Damon Feldman. He allegedly stated that Feldman tried to pawn off Ozzie Canseco as Jose at the last minute, though Ozzie himself was a former professional ball player and thus worthy of being a celebrity boxer in his own right. If Canseco told the truth to the New York Post, it would not be the biggest surprise, as Feldman recently pleaded no contest to fight fixing and promoting fights without a license in Pennsylvania.

Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court. This article is also available on http://www.8countnews.com.

LA Clippers to Replace Kings in Sacramento

University of Wisconsin Renames Camp Randall KFC/Taco Bell Stadium

Obama to Visit NY Social Sports Club Rec League

* * *

What worked for the prosecution?

1. Kathy Hoskins's believable recollection will help to prove Count Two

Kathy Hoskins, the former personal shopper of Bonds and the sister of Steve Hoskins, carefully explained how she watched Anderson inject Bonds in the navel during the 2002 season. She came across as believable, normal and someone with whom jurors could likely identify. Her memory also appeared strong, especially when she recalled specific comments purportedly made by Bonds. While prosecutors tried to link her with Steve Hoskins, whose business relationship with Bonds soured and who struggled on the stand earlier in the week, Kathy Hoskins emerged from cross examination as credible and without apparent ill-motive.

If the jury believes Kathy Hoskins with absolute certainty, it would be poised to find Bonds guilty on Count Two of the government's indictment. As explained in our previous coverage, Count Two simply requires prosecutors to prove that Bonds was injected by Anderson and that Bonds knowingly lied in 2003 when stating, under oath, that no such injection ever took place.

Then again, prosecutors were unable to corroborate Kathy Hoskins's testimony with other witnesses who could credibly claim they too saw Bonds injected by Anderson. Along those lines, some on the jury may be uncomfortable with finding Bonds guilty based on the testimony of just one witness, albeit a very believable one. They might also reason that Bonds could have simply -- to borrow a favorite word of fellow alleged perjurer Roger Clemens -- "misremembered" everything that Anderson did to him, including injections. Given that perjury requires that the defendant knowingly lied, as opposed to merely being mistaken or confused, any possibility of doubt would work to Bonds's defense.

* * *

What worked for the defense?

1. Steve Hoskins and Dr. Arthur Ting failed as witnesses for the prosecution

Though he initially seemed to possess intimate knowledge of Bonds' personal and professional life and though he portrayed Bonds as keenly interested in steroids, Steve Hoskins proved highly vulnerable under cross-examination, particularly in regards to his credibility and motivations. His rationale for secretly taping a conversation with Anderson drew intense fire, as Hoskins made the recording after Bonds had largely terminated his business relationship with him. Jurors will likely have doubts about relying on comments by Steve Hoskins to convict Bonds.

Ting proved to be the worst witness for the government, by far. For at least three reasons, Ting seemed more like a witness for the defense than for the prosecution: he emphasized that he never spoke with Bonds about steroids; he highlighted non-steroid explanations for possible changes in Bonds' body; and he adamantly denied testimony by fellow prosecution witness Steve Hoskins, who had claimed that he and Ting discussed steroids. By the end of his testimony, Ting probably left jurors with serious doubts about the government's case against Bonds and about prosecutors' wisdom in calling him to the stand.

* * *

What to expect next week?

The prosecution is nearly finished and the defense will begin its case-in-chief on Monday. Expect three major defense strategies:

1. Refute Kathy Hoskins's assertion that Anderson injected Bonds

While the government struggled to show that Bonds knowingly lied under oath about steroids, it scored a victory in Kathy Hoskins's persuasive testimony. Keep in mind, if Bonds is convicted only on Count Two, he will still be a convicted felon and still face prison time.

Expect defense attorneys to portray Kathy Hoskins as linked more closely to her brother, Steve, than she led the court to believe. The stronger she is linked to her less credible brother, the more doubt the jury may have of her testimony. While the defense has to be careful to not so fervently slander Kathy Hoskins that it backfires -- and that she is called again to the stand -- it has to address her damming testimony.

* * *

PBS: How significant is this case?

McCann: It's a very significant case, particularly because it's past the motion-to-dismiss stage. A motion to dismiss is an argument by the defendant that, even if all of the facts are true, there's no viable legal claim. Well, the NCAA lost the motion to dismiss, and it's now going to trial. Normally, cases against the NCAA have not succeeded, either because of motions to dismiss or because they're settled. O'Bannon, though, seems to signal that he isn't going to settle, that he's actually going to go forward with this case, and he's going to try to win it.

And if he wins it, it would mean that retired players, including those who have been retired for a while, should be compensated for their use and image and likeness that the NCAA contracted away.

PBS: Well, you said something called the "right of publicity." What is that?

McCann: The right of publicity is that we have certain proprietary interests in our identity, that if somebody is going to try to make money off our image, our likeness, our name, that we should be compensated for that. Now, there are exceptions to that. There's a newsworthiness exception, for instance. If we're in the public news because of something we did or because we happen to be there, we're not going to be compensated. There's also an exception for parody. In other words, if we went on a television show and somebody parodied our appearance, we wouldn't be compensated for that.

But if somebody is just trying to make money off our image or likeness, we have a legal right, under state laws, to be compensated for that.

PBS: Let me put it a different way. O'Bannon, all the college athletes today, student-athletes, they all sign this form, right? And it's our understanding that this form has a clause in it that says you're signing away all your rights, basically, to the NCAA and to the school that you went to. So what's this litigation all about?

McCann: O'Bannon would argue that the Student-Athlete Statement, which, as you noted, Lowell, is required of students to sign if they want to play college sports -- students who may be 17 or 18 years old know that if they don't sign that statement, they will not be able to play sports. And if they can't play sports, they may not get their scholarship. And if they don't get their scholarship, they may not be able to afford school. So O'Bannon is saying, well, that's not really much of a choice, is it, because you're required to sign this form.

Not only does it seem as if we don't have a choice, but the form itself shouldn't have the meaning that the NCAA seems to perceive. The form means that players give up their proprietary interest while they're in college, so the NCAA can use their likeness and image while they're in college to promote the NCAA and to promote the colleges that the players are associated with.

O'Bannon is saying, even if that's OK, which he doesn't seem to concede, but even if that's OK, it shouldn't continue after I've left school, because the NCAA, as it's argued, is concerned about the exploitation of student-athletes; that if they were to be able to do their own deals while in college, there would be charlatans who exploit players and the like. But O'Bannon is saying: "I'm 39 years old. Why is it that I need to be protected by the NCAA nearly 20 years after I played college basketball? I should have a right to get paid. That form shouldn't take the effect that the NCAA seems to interpret."

* * *

PBS: Yeah. But I mean, the players who make the money, because there's a very small group of players who bring in that revenue, right?

McCann: Sure. I think you could say that the superstar player generates a disproportionate share of the fan's interest of the commercialization of sports. When O.J. Mayo plays one year [of basketball] at the University of Southern California, and he's put on the cover of the brochure, and he's highlighted, he clearly is generating revenue for the University of Southern California. This is somebody who is attracting renewed interest in a program that had not attracted a lot of interest in years prior.

I don't know if the 11th and 12th persons on the bench are generating that same value. They're clearly not. You know, the random offensive linemen on a top college football team, whom we don't know the name of, how much value is that player contributing? Well, in the sense that he's playing on a team that's doing really well, he's contributing value. But independently, how much value is he contributing? I think that's a harder call. And I think that's what is going to make compensating athletes a difficult challenge, certainly not an impossible challenge, but it's figuring out who gets what ... If it were a professional league, then we would know what they get, because there's a market for services.

* * *

PBS: But this is the only country that I know of that has sports teams associated with universities and institutions of higher learning in a billion-dollar industry, and is tied that way. I mean, this is a pretty unusual situation, isn't it?

McCann: It is, and in other countries, for instance in Europe, we don't see the same college sports system. We see a professionalization of youth sports. We see if you're a 13- or 14-year-old star basketball player, you don't have to wait until you're 19 years old and one year removed from high school to play in the NBA. You can sell your services as a teenager and make money at that point, or you can join some other kind of pro league in another part of the world.

Only in the United States do we have this very extensive and popular system of college sports that has had the effect of reducing the compensation and, in some cases, eliminating compensation for those who are playing the sports. When you couple that with age restrictions in order to enter the NFL and the NBA -- and, of course, in college sports, at least 90 percent of the revenue is generated by football and men's basketball -- then you could see a real injustice.

You have players who can't turn pro because of an age restriction. Then they have to go to college, if you will, to play maybe for a school that they have no interest [in] being a student at. Where do they go? Well, they can go to Europe if they're a basketball player, perhaps, but not many have done so. They're in a difficult situation. I think the ones who are generating so much of the wealth, the star players, are the ones who are so clearly disadvantaged by this system.

PBS: So it's an antitrust case.

McCann: It is an antitrust case, because the current system is set up in a way that boycotts players who would otherwise be commercially viable from being able to use their services. And that, arguably, makes the market less competitive.

Now, the question is, who gets sued there? Do you sue the professional sports leagues and the players' associations that have created barriers to entry? Well, that's been done in the past. The difficulty is that courts say, if the owners and the players get together and negotiate a rule, it's largely immune from federal antitrust law. And of course, you could say, well, that doesn't seem fair, because the players' association is looking out for current players. Why should they create a barrier that prevents prospective players from entering the league, because if they could enter, they're going to take jobs away from the 12th guy on the bench. That doesn't seem like a fair system. But that's how federal labor and antitrust laws are set up. Current employees can negotiate on behalf of prospective employees. It may seem fair in some contexts, but I think in professional sports it really isn't.

* * *

Two long-form segments anchor the program, setting the stage for an extended roundtable panel hosted by Bryant Gumbel and featuring former University of Michigan head football coach Rich Rodriguez, outspoken college basketball commentator Billy Packer and print journalist Jason Whitlock of FoxSports.com. The group will address a host of issues relating to the NCAA and the regulation of its 1,055 member schools.

Segments include:
*The Money Trail. Every year, thousands of talented young student-athletes sign letters of intent and obtain full-ride athletic scholarships (tuition and board) from the biggest, wealthiest programs in America, effectively giving up all rights to revenue generated by their participation, including TV rights fees, merchandising and ticket sales. But with a dramatic increase in revenue from top programs and athletes' growing awareness of their contribution, many are starting to ask if there should be financial compensation. REAL SPORTS correspondent Bernard Goldberg examines the notion of student-athletes remaining untainted amateurs while generating pro-type revenue for their schools. Are they getting a fair shake?

*Pay to Play. Should athletes at Division I programs be financially compensated? And would that curb the headline-grabbing stories of inappropriate payments and benefits? More and more standout athletes in top programs are seemingly putting their education on the back burner to focus on what's really important – the money. Those destined for the NBA and NFL face the moral dilemma of dealing with “advisors” and “street agents” who can deliver the funds and material items they desire while in school in exchange for a promise of future reciprocation when they reach the pros. REAL SPORTS correspondent Andrea Kremer delves into the controversial and complex subject of premium college-bound athletes receiving benefits that are prohibited by the NCAA.

Rachel Blumenfeld, Dog baiting abatement: using nuisance abatement to regulate dogfighting, 17 SPORTS LAWYERS JOURNAL 1 (2010)

Victor S. Broccoli, Williams v. NFL: the Eighth Circuit flags the NFL for interference with state drug testing laws, 17 SPORTS LAWYERS JOURNAL 283 (2010)

Bradley R. Bultman, Comment, Drafted player compensation: incorrectly hidden in the afternoon shadow of the nonstatutory labor exemption, 11 FLORDIA COASTAL LAW REVIEW 687 (2010)

Ashlee A. Cassman, Bring it on! Cheerleading vs. Title IX: could cheerleading ever be considered an athletic opportunity under Title IX, and if so, what implications would that have on university compliance?, 17 SPORTS LAWYERS JOURNAL 245 (2010)

Steve E. Cavezza, Can I see some ID? An Antitrust Analysis of NBA and NFL Draft Eligibility Rules, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LJ 22 (2011)

Sonali Chitre, Technology and copyright law—illuminating the NFL's ‘blackout' rule in game broadcasting, 33 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 97 (2010)

Reid Coploff, Exploring gender discrimination in coaching, 17 SPORTS LAWYERS JOURNAL 195 (2010)

Chris Deubert, What's a ‘Clean' Agent to Do? The Case for a Cause of Action Against a Players Association, 18 VILLANOVA SPORTS AND ENTERTAINMENT LAW JOURNAL 1 (2011)

Marielle Elisabet Dirkx, Comment, Calling an audible: the Equal Protection Clause, cross-over cases, and the need to change Title IX regulations, 80 MISSISSIPPI LAW JOURNAL 411 (2010)

Marc Edelman & David Rosenthal, A sobering conflict: the call for consistency in the message colleges send about alcohol, 20 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 1389 (2010)

Adam Epstein, Teaching Torts with Sports, 28 JOURNAL OF LEGAL EDUCATION 117 (2011)

Adam Epstein, Religion and Sports in the Undergraduate Classroom: A Surefire Way to Spark Student Interest, 21 SOUTHERN LAW JOURNAL 133 (2011)

Lauren A. Fields, Comment, Who owns dat?, 13 TULANE JOURNAL OF TECHNOLOGY & INTELLECTUAL PROPERTY 251 (2010)

John A. Fortunato & Shannon E. Martin, American Needle v. NFL: Legal and Sponsorship Implications, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LAW JOURNAL 73 (2011)

Nathaniel Grow, Defining the “business of baseball”: a proposed framework for determining the scope of professional baseball's antitrust exemption, 44 UC DAVIS LAW REVIEW 557 (2010)

Benjamin B. Hanson, Comment, Defend the Williams Wall, leave professional sports drug testing policies in shambles: the decision and consequences of Williams v. NFL, 33 HAMLINE LAW REVIEW 327 (2010)

Casinova O. Henderson, How much discretion is too much for the NFL Commissioner to have over the players' off-the-field conduct?, 17 SPORTS LAWYERS JOURNAL 167 (2010)

Robert S. Jeffrey, Note, Beyond the hype: the legal and practical consequences of American Needle, 11 FLORIDA COASTAL LAW REVIEW 667 (2010)

Brandon Johansson, Note, Pause the game: are video game producers punting away the publicity rights of retired athletes?, 10 NEVADA LAW JOURNAL 784 (2010)

Richard G. Johnson, Submarining due process: how the NCAA uses its restitution rule to deprive college athletes of their right of access to the courts...until Oliver v. NCAA, 11 FLORIDA COASTAL LAW REVIEW 459 (2010)

Michael Kim, Mixed martial arts: the evolution of a combat sport and its laws and regulations, 17 SPORTS LAWYERS JOURNAL 49 (2010)

Camalla M. Kimbrough, Comment, Upon further review: how the NFL's exclusive licensing agreement with Reebok survives antitrust scrutiny despite the League's flawed single-entity defense, 13 TULANE JOURNAL OF TECHNOLOGY & INTELLECTUAL PROPERTY 235 (2010)

Jeffrey F. Levine & Bram A. Maravent, Fumbling away the season: will the expiration of the NFL-NFLPA CBA result in the loss of the 2011 season?, 20 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1419 (2010)

Joseph A. Litman, Note, Tremendous upside potential: how a high-school basketball player might challenge the National Basketball Association's eligibility requirements, 88 WASHINGTON UNIVERSITY LAW REVIEW 261 (2010)

Robert A. McCormick & Amy Christian McCormick, A trail of tears: the exploitation of the college athlete, 11 FLORIDA COASTAL LAW REVIEW 639 (2010)

Frank P. McQuillan, Minnesota's miracle...on ice: the transfer-mation of student-athletes into free agents, 17 SPORTS LAWYERS JOURNAL 135 (2010)

Matthew J. Mitten & Hayden Opie, “Sports law”: implications for the development of international, comparative, and national law and global dispute resolution, 85 TULANE LAW REVIEW 269 (2010)

Brandon D. Morgan, Oliver v. NCAA: NCAA's no agent rule called out, but remains safe, 17 SPORTS LAWYERS JOURNAL 303 (2010)

Anna Peterson, Comment, But she doesn't run like a girl...: the ethic of fair play and the flexibility of the binary conception of sex, 19 TULANE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 315 (2010)

Adam Primm, Salary arbitration induced settlement in Major League Baseball: the new trend, 17 SPORTS LAWYERS JOURNAL 73 (2010)

J. Chadwick Schnee, Wrestling with retaliation: pinning down the Burlington “dissuading” standard under Title IX, 17 SPORTS LAWYERS JOURNAL 223 (2010)

Aaron Shepard, Note, Football's stormy future: forecasting the upcoming National Football League labor negotiations, 33 COLUMBIA JOURNAL OF LAW & ARTS 527 (2010)

Patrick Donohue Sheridan, An Olympic solution to ambush marketing: how the London Olympics show the way to more effective trademark law, 17 SPORTS LAWYERS JOURNAL 27 (2010)

Brett T. Smith, The tax-exempt status of the NCAA: has the IRS fumbled the ball?, 17 SPORTS LAWYERS JOURNAL 117 (2010)

Jeffrey J.R. Sundram, Comment, The downside of success: how increased commercialism could cost the NCAA its biggest antitrust defense, 85 TULANE LAW REVIEW 543 (2010)

Seagull Haiyan Song, How should China respond to online piracy of live sports telecasts? A comparative study of Chinese copyright legislation to US and European Legislation, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

Robert J. Thorpe, Way out in left field: Crespin v. Albuquerque Baseball Club rejects nearly one hundred years of American jurisprudence by declining to adopt the baseball rule in New Mexico, 17 SPORTS LAWYERS JOURNAL 267 (2010)

Glenn M. Wong, Warren Zola and Chris Deubert, Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal and Regulatory Environment, 28 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 553 (2011)

Glenn M. Wong and Chris Deubert, National Basketball Association General Managers: An Analysis of the Responsibilities, Qualifications and Characteristics, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 213 (2011)

Carlos will speak at noon on Thursday, March 31, 2011 at the Marlyn E. Lugar Courtroom in the WVU Law Center.

Specifically, Dr. Carlos will discuss the national platform athletes are given, as the American public has become more and more enthralled in the commercialized sports industries. He will discuss how and if African American athletes utilize this platform as he and Smith did in 1968. Carlos won the bronze medal in the 200-meter dash behind Smith and Australian Peter Norman. While receiving their medals, Smith and Carlos raised gloved fists as a silent protest of racism and economic depression among oppressed people in America. In response, International Olympic Committee president Avery Brundage banned the two men from the Olympic Village and forced them from the United States Olympic team. Carlos and Smith were embattled for years following their bold and meaningful protest.

The event is free to the public and will be webcast live at http://law.wvu.edu/carlos.

What: Business of Amateur Sports Symposium at Southwestern Law School

When: April 8, 2011 (9:15 a.m. – 7:00 p.m.)

Where: Southwestern Law School (map)

The Business of Amateur Sports is a one-day symposium featuring leading experts exploring some of the most timely and important questions facing collegiate sports today: regulation of agents and discipline of student athletes; the latest medical science on sports-related concussions, and how it may impact safety rules and legal liability; media deals and marketing in college sports, including the use of student-athlete names and likenesses; and the federal antitrust implications of college football's Bowl Championship Series.

Schedule

9:15 - 10:00 a.m.: Check-in/Coffee

10:00 - 11:30 a.m.: Pre-Professional Athletes in an Amateur World: NCAA Rules, State Laws, Agents and Extra Benefits

• Bob Myers, NBA Agent, Wasserman Media Group
• Warren K. Zola, Assistant Dean for Graduate Programs, Boston College's Carroll School of Management
• Marc Isenberg, Principal, INsight Sports Business and Author, Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes and Go Pro Like A Pro
• Moderator: Darren Heitner, CEO, Dynasty Athlete Representation and Associate, Koch Parafinczuk & Wolf

11:30 - 11:45 a.m.: Break

11:45 a.m. - 12:45 p.m.: Concussions, Law and Amateur Sports: Implications of Emerging Medical Science for the Regulation of Student Athlete Safety

• Dr. Jason P. Mihalik, Assistant Professor, Department of Exercise and Sport Science, University of North Carolina at Chapel Hill
• Daniel E. Lazaroff, Director, Loyola Law Sports Institute, Professor of Law and Leonard Cohen Chair in Law and Economics, Loyola Law School
• Moderator: David Fagundes, Associate Professor of Law, Southwestern Law School

1:00 - 2:30 p.m.: Lunch and Special Guest Conversation

• Jim Harrick, Former NCAA Basketball Head Coach and Broadcaster, in conversation with Jeff Fellenzer, Adjunct Professor, USC's Annenberg School for Communication & Journalism

2:45 - 4:15 p.m.: Big Brands and Bigger Budgets: Marketing, Merchandising and Media Rights in College Sports

• Alonzo (“Al”) Wickers, IV, Partner, Davis Wright Tremaine
• Stuart M. Paynter, The Paynter Law Firm
• Jeremy Langer, Vice President Collegiate Sports and Rights Acquisitions, Fox Sports
• Moderator: Debbie Spander, Vice President, Business Affairs, MTV Entertainment and Director, Sports Lawyers Association

4:15 - 4:30 p.m.: Break

4:30 - 5:30 p.m.: The BCS and Competition: An Antitrust Analysis of College Football's Bowl Championship Series

• Gary R. Roberts, Dean and Gerald L. Bepko Professor of Law, Indiana University School of Law – Indianapolis
• Alan G. Fishel, Partner, Arent Fox
• William (“Tripp”) L. Monts, III, Partner, Hogan Lovells
• Moderator: Vered Yakovee, Law Offices of Vered N. Yakovee and Adjunct Associate Professor of Law, Southwestern Law School

5:30 - 7:00 p.m.: Cocktail Reception

Cost: $85 (General admission), $25 (Students). Register here. 6 CLE credits offered.

Join us for an evening with a distinguished group of sports law industry professionals.

Monday, March 28th, 7pm - 9pm
Rutgers School of Law Camden
Rutgers Camden Campus Center – Multi Purpose Room
326 Penn Street, Camden NJ

Prior to the panel, all guests are invited to attend a reception and dedication of the Clark Commons at 5:30 pm on the law school Bridge (the Clark Commons).

Panelists include:

George Atallah
NFL Players Association Assistant Executive Director of External Affairs

Domonique Foxworth
Baltimore Ravens, NFL Players Association Executive Committee Member

James Ivler
Registered NFL Agent, Sportstars, Inc.

Adam Taliaferro
Associate at Duane Morris, former Penn State football player

Please RSVP to Terry Moffett (tmoffett@camden.rutgers.edu or 856.225.6430).

Sponsored by the Rutgers School of Law Camden Sports & Entertainment Law Society, Rutgers Camden Law Recent Graduate Council, the Rutgers School of Law Camden Office of Career Planning and the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association.

According to the official police report, Bryant and three friends were stopped by the uniformed, off-duty officers working security shortly before 8 p.m. at the popular shopping center after they were observed "wearing their pants halfway down their hips exposing their underwear."

The police asked the men to pull their pants up.

"Mr. Bryant's response to the request was profanity laced and [NorthPark] center representatives felt the outburst merited a request for Mr. Bryant to leave the premises," according to a Dallas police statement issued Tuesday evening.

"What the [expletive] are you stopping me, like I stole something," Bryant was quoted as saying by a News 8 source. "I'm not leaving until my attorney and my representative get here."

Police said Bryant continued cursing as the off-duty officers escorted him to his vehicle.

"Mr. Bryant entered his vehicle but parked in a fire lane still refusing to leave, necessitating a request for on-duty officers to respond to the location," the Dallas police statement said.

Valley News: Overall, how much leverage do you feel like the players have?

Michael McCann: I think they have a lot of leverage until they start missing game checks. When the fall comes, if they're not getting paid their normal salaries like they would during the season, it will be interesting to see how unified they are. Right now, they're unified in the offseason, but when the game checks are missed, the players will be relying on $60,000 lockout insurance from the Players Association. For us, that sounds good, but if you're making $1.9 million, which is the average salary in the NFL, I don't know how that's gong to play out. Will players have enough savings?

They've been encouraged to save, particularly during the last several years with the future of the CBA unclear, but I think a lot of players live lifestyles that are very expensive and don't lend themselves to going a long stretch of time without getting paid.

Owners generally have the leverage there, because they have more wealth, their pockets are deeper and they have other businesses that generate income for them. Some of the owners would suffer, yes, especially the ones who need to pay off debt for their stadiums, but the owners generally are more equipped to withstand a long period of no football than the players.

Will 2011 Be the Year That Jack Johnson Scores His Final Knockout?

Arizona Senator John McCain and New York Representative Peter King announced recently that they plan to reintroduce a Congressional resolution urging a pardon of former heavyweight champion Jack Johnson, who was convicted in 1913 of violating the Mann Act for allegedly transporting a woman across state lines for immoral purposes by an all-white jury. A racially polarizing case for generations and blot on the history of the American jury system, here's hoping the resolution finally passes after several previous efforts and President Barack Obama, the first African-American president, takes the opportunity to pardon Johnson, the first African-American to win world heavyweight championship.

Long Count Hinders Sillakh From Bringing the Despaigne: In the main event of the same card that gave us Norwood's veteran penalty, rising light heavyweight contender Ismayl Silakh, 15-0 (12 KOs), may have missed his chance to stop undefeated Cuban Yordanis Despaigne, now 8-1 (4 KOs), in the second round of their bout because, in contravention of one of boxing's oldest rules, the excited Silakh failed to timely go to a neutral corner. Silakh's overzealousness may have cost him the knockout, as Despaigne ultimately had several additional seconds to recover, but did not cost him the fight, as he went on to score a well-earned unanimous decision. One further note on this the Silakh-Despaigne fight; when was the last time you saw a boxer with only eight professional bouts have as many sponsors on his trunks as Despaigne? Managers take note, Team Despaigne is apparently doing something right, even if matching him with Silakh did not turn out to be the wisest move.

The Quebecois Decide Not to Play Roulette: The Quebec Boxing and Gaming Commission kept its credibility intact in its local golden era of boxing by benching heavyweight contender Tommy (The Duke) Morrison after he refused to submit to HIV and hepatitis testing in advance of his scheduled February 25, 2011 bout with journeyman Erik Barrak. Barrak instead went on to knock out former Morrison victim Matt Weishaar, a late replacement, in the first round. For more on the controversy leading up to Barrak's knockout, please go to: http://www.8countnews.com/news/125/ARTICLE/3250/2011-01-25.html.

Recent Battle of the Bulge Reveals Another Alternative to Making Weight: Many times, if a boxer's opponent fails to make weight, he is fined and the fight goes on. Such was the case this past weekend, when hot junior middleweight contender Saul (Canelo) Alvarez came in 1.8 pounds overweight and wound up giving his soon-to-be whipping post Matthew (Magic) Hatton and the California State Athletic Commission $35,000 a piece for his failure at the scales. But what happens when both boxers come in overweight? Well, one option is to pretend like nothing happened and go on with the fight. Such was the case on February 25, 2011 when former IBF Minimumweight Champion Roberto (Mako) Leyva took on South African prospect Simpiwe Vetyeka in a bantamweight match in which neither made weight on ESPN2's Friday Night Fights. Leyva might have learned his lesson about coming in heavy even without a monetary fine another way, however, as Vetyeka stopped him with a shot to his doughier-than-contracted-for body in the third round.

La Heina Facing Yet Another Matter Not Worthy of Laughter: It was reported earlier this week that the entertaining, but troubled, former WBO Super-Featherweight Champion Jorge Rodrigo (La Heina) Barrios was arrested for beating and sexually assaulting a 29-year-old woman in his native Argentina. Barrios still has legal actions pending against him related to both a January 2010 car accident which resulted in the death of a pregnant woman, and the alleged Christmastime beating of his son. If Barrios currently has a promoter, manager, or sponsor, it would not surprise the author to find out that they are looking for ways out of their agreements with the troubled boxer as we speak.

Is Guzman's Career Down for the Count Following Three Out-of-the-Ring Knockdowns?: It was reported back in January that former two-division world champion Joan Guzman was suspended, fined, and released from his promotional agreement with Golden Boy Promotions after testing positive for Furosemide, a diuretic banned by the Nevada State Athletic Commission, following his second round knockout of Jason Davis on December 11, 2010. Guzman's release by Golden Boy was the well-deserved culmination of a recent history of infractions that have plagued Guzman's career. Does this latest series of setbacks spell the end for him though? Don't bet on it, as Guzman can always retreat to his native Dominican Republic where, as a free agent, he could theoretically be licensed to box, as his homeland need not recognize Nevada's suspension.

Briggs' Lawsuit Against Empire Sports & Entertainment Provides for a Nice Hypothetical for First Year Contract Law Students: Long-time heavyweight contender Shannon Briggs, only a few months displaced from his shellacking against Vitali Klitschko, filed a lawsuit in January against his management/ promotional company Empire Sports & Entertainment and its officers on a variety of grounds, including their alleged failure to pay him the $750,000 that he was orally promised for the Klitschko bout. While the author has reviewed the complaint, and finds some causes of action more plausible than others, a word to the wise when negotiating boxing matches both big and small: Get the full purse value in writing before you go in the ring. Briggs' contract for the Klitschko bout allegedly stated that he was to only receive $100,000. With $650,000 more purportedly in the hopper, it was likely not the best decision Briggs ever made to not compel Empire to reduce his full compensation to writing. A bottom 10% student who has completed a single year of education at one of nation's worst law schools knows better than to accept and rely on anyone's oral changes to an agreement. Perhaps Briggs does now too.

Duel of the Iron Mikes? Law Student Lesson # 2: 1980s journeyman junior middleweight contender “Iron” Mike Landrum, 0-2 (0 KOs), recently filed a trademark infringement lawsuit against the slightly more accomplished “Iron” Mike Tyson, 50-6 (44 KOs), for allegedly stealing his nickname. Lesson number two for law students reading the column today: the standard by which trademark infringement claims are evaluated is “likelihood of confusion,” or how likely the “consuming public will likely be confused or mistaken about the source of a product or service sold using the mark in question (see http://marklaw.com/trademark-glossary/confuse.htm).” Now ask yourselves, how likely is it that anyone who knows anything about boxing would confuse these two individuals with each other because of their nickname? FYI, Boxrec.com does not even reflect that Landrum used the “Iron” moniker.

Debuting Heavyweight Perishes in Arkansas: The boxing world was rocked on January 29, 2011 by the untimely death of debuting heavyweight Anthony Jones following his second round knockout loss to Quincey Palmer in Arkansas. While the commissioner was reportedly at ringside, proper procedures were allegedly followed, and Jones was examined by a ringside physician before entering the ring, the author will keep an eye on this matter to see if a lawsuit is ultimately filed against the Arkansas Athletic Commission and/or its ringside physicians alleging negligence or medical malpractice. In the meantime, rest in peace young warrior, we appreciate your brief entrance into the sweepstakes to find America's next great heavyweight. Here's hoping other young American heavyweight hopefuls, such as Deontay Wilder, Seth Mitchell, and Maurice Byarm, carry on proudly in your absence.

BBBC Declines to Do Any Hustlin' for Ruslan: It was reported by Boxing Scene.com back in January that the British Boxing Board of Control advised that it would not approve WBA Heavyweight Champion David (Hayemaker) Haye's mandatory challenger Ruslan Chagaev due to his history of hepatitis B. Although the article breaking the story suggested that the situation was problematic for Haye, who is reportedly just signed to face Wladimir Klitschko, it is also quite problematic for Chagaev, as other governing bodies and athletic commissions could adopt the BBBC's position and opt not to license him going forward. For more on the potential implications of recent problems facing internationally-based boxers, please see: http://www.8countnews.com/news/125/ARTICLE/3200/2011-01-12.html.

BBBC Decides Not to Use the Force on A-Force: The same week that it was reported the BBBC slammed the door on David Haye's prospective future opponent Ruslan Chagaev, it also decided that it would let his most recent opponent off the hook. Following an investigation of his apparent non-effort against Haye on November 13, 2010, the BBBC decided to give former Olympic gold medalist Audley (A-Force) Harrison his entire £ 1.5 million purse. Harrison apparently offered a reasonable explanation for his showing that the BBBC accepted in reaching their decision. The boxing public will probably not prove as forgiving to Harrison going forward. For more on Harrison's recent image troubles, please see this link.

Congratulations to the all of the participants in the 2011 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras. Special thanks to Mary Jones and the Tulane Moot Court and Diana Taylor and the members of the Sports Lawyers Journal for the help in putting together the competition. Thanks also to Stan Kasten for serving as our celebrity guest judge in the finals.

Yale Law School

Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports and the Law: Current Issues

April 4 2011 6:00 to 8:00 p.m.
Room 120

Moderator:

MICHAEL MCCANN (Vermont Law School Professor of Law/Director of Sports Law Institute & Sports Illustrated Legal Analyst)


Panelists:

ALAN MILSTEIN (Sherman Silverstein Co-Managing Shareholder; has represented Carmelo Anthony, Allen Iverson, Eddy Curry, Maurice Clarett, and many other star athletes in litigation and other matters)

ERIC NYQUIST (NASCAR Vice President of Strategic Development)

CHRIS PARK (Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball)

JAY REISINGER (Farrell & Reisinger partner; manages firm's sports law practice; has represented Josh Hamilton, Alex Rodriguez, K-Rod, Andy Pettite, Sammy Sosa and many other star players, either before Congress, the media, or in arbitration)

BRAD RUSKIN (Proskauer partner; head of the litigation section of firm's Sports Law Group; represented ATP in Deutscher Tennis Bund, et al vs. ATP World Tour)

MIKE ZARREN, Boston Celtics Assistant General Manager and Associate Counsel (plays key role in talent evaluation and salary cap management for the team, including in the famed deal for Kevin Garnett)

The prospect of Vegas-style sports gambling in New Jersey took a hit on March 7, 2011 when Chief Judge Garrett E. Brown of the United States District Court of New Jersey dismissed a long-percolating federal lawsuit challenging the constitutionality of the Professional & Amateur Sports Protection Act (“PASPA”). The 19 page opinion has yet to be posted on the court's website, but the decision is available via PACER. Passed in 1992, PASPA prohibits sports betting in all states except for Nevada, Delaware, Montana, and Oregon. New Jersey State Senator Raymond J. Lesniak and Stephen M. Sweeney, along with a number of pro-gambling trade associations, sought to invalidate PASPA on constitutional grounds, thereby allowing New Jersey (and, presumably, other states) to offer state-regulated sports wagering. New Jersey Governor Chris Christie declined the opportunity to intervene in the lawsuit as an additional plaintiff. The lawsuit suit was filed in 2009. U.S. Attorney General Eric H. Holder, the U.S. Attorney for the District of New Jersey, and unnamed sports organizations were listed as defendants.

The plaintiffs put forth a multi-pronged argument based on the U.S. Constitution. Specifically, they claimed that PASPA violates the following constitutional provisions: (i) the Commerce Clause; (ii) the First Amendment's protection of expression and assembly; (iii) the Tenth Amendment; (iv) the Eleventh Amendment; (v) the Due Process Clause; and (vi) the Equal Protection Clause. Instead of contesting the lawsuit on substantive grounds, the U.S. government moved to dismiss the lawsuit procedurally for lack of standing and failure to state a claim.

Citing Supreme Court cases familiar to every first year law student, Chief Judge Brown addressed the standing issue. The judge cited Lujan v. Defenders of Wildlife for Article III's requirement that federal judicial review be limited to actual cases and controversies. Likewise, Chief Judge Brown quoted FW/PBS, Inc. v. City of Dallas for the proposition that the plaintiff must “clearly…allege facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute” (p. 6). The plaintiff trade associations were found to have no standing on this basis.

In connection with New Jersey Senators Lesniak and Sweeney, the judge provided additional reasoning and specifically addressed the fact that the New Jersey legislature recently passed Senate Concurrent Resolution No. 132 (“SCR 132”). If approved by popular vote in November 2011, SCR 132 would amend the New Jersey constitution “to permit the legislature to authorize sports wagering at Atlantic City casinos and certain horse racetracks, so long as the gambling did not extend to sporting events taking place in New Jersey or involving New Jersey collegiate teams” (p. 4). The judge posited that the Senators' SCR 132-related argument for standing “puts the cart before the horse” given that SCR 132 has yet to be voted on, let alone approved. Accordingly, Chief Judge Brown found Senators Lesniak and Sweeney to lack standing to challenge PASPA's constitutionality. Under New Jersey law, “the proper party to bring such a claim would be New Jersey's attorney general, but the governor and attorney general have not intervened in this lawsuit” (p. 18).

It isn't particularly surprising that certain New Jersey lawmakers are looking to sports-based gambling as a way to increase state revenue. According to a recent Pew Research report, 33% of American men gamble of sporting events. In 2009, $2.57 billion was wagered legally in Nevada, although the amount of action in Nevada-based sports books probably only represents 1% of all sports bets made nationwide. The illicit nature of some gambling, coupled with the availability of the Internet, has caused the popularity of off-shore sports wagering to explode during the past fifteen years. The passage of the federal Unlawful Internet Gambling Enforcement Act in 2006 has done little to diminish online/offshore sports gambling. As a result, internet sports wagering is largely unregulated, potentially depriving certain states and municipalities of tax revenue. A 2011 Contemporary Economic Policy by Douglas M. Walker and John D. Jackson article investigated whether state-sponsored gambling increases revenue. The authors found that lotteries and horse racing did contribute to the bottom line, but casinos and greyhound racing did not.

The future viability of sports betting in New Jersey now seemingly rests with the state's voters. If SCR 132 is approved, it is possible (probable?) that Governor Christie and the New Jersey Attorney General will feel compelled to re-institute the lawsuit. Given that Chief Judge Brown decided the case on procedural, not substantive, grounds, such a reincarnation would not have the hurdle of any adverse precedent, as the constitutional claims promulgated by the plaintiffs in the just-dismissed case were not at issue.

My interview with the Orange & Brown Report on scout.com (subscription required)

An article interviewing me from the Philadelphia fan blog Bleed Green

Q & A with Prof. Gabe Feldman (Tulane) from the NFL network

After a thorough review of the video, I can find no basis to impose supplemental discipline. This hit resulted from a play that evolved and then happened very quickly -- with both players skating in the same direction and with Chara attempting to angle his opponent into the boards. I could not find any evidence to suggest that, beyond this being a correct call for interference, that Chara targeted the head of his opponent, left his feet or delivered the check in any other manner that could be deemed to be dangerous.

This was a hockey play that resulted in an injury because of the player colliding with the stanchion and then the ice surface. In reviewing this play, I also took into consideration that Chara has not been involved in a supplemental discipline incident during his 13-year NHL career.

“As long as there's a sense that it's part of what happened in a hockey game — it is a violent game, like a football game, terrible things happen — it's highly unlikely a prosecutor would choose to intervene,” said Alfred Yen, who teaches sports law at Boston College School of Law. “I think only the situation where a prosecutor would be likely to intervene is if somebody, after the whistle blows and play is stopped, and runs up to somebody and just whacks them. That would be different.”

Mike McCann, who is also director of the Sports Law Institute at Vermont Law School and is the legal analyst for Sports Illustrated, said prosecutors in the States usually defer to professional sports leagues like the NHL to mete out punishments in cases that leave athletes marred with concussions or other potential career-ending injuries.

“If you look at Matt Cook and the hit he put on (Bruin) Marc Savard, that was worse,” McCann said, adding that Pittsburgh police passed on charging the Penguins forward. . . .

Noting that Canadian law requires intentional conduct as the basis of an assault charge, McCann commented, “You could argue that a fight is more intentional.”

• Nathaniel Grow, Antitrust and the Bowl Championship Series, 2 Harvard Journal of Sports and Entertainment Law Journal __ (forthcoming, 2011)

• Michael A. McCann, Antitrust, Governance, and Postseason College Football, 52 Boston College Law Review __ (forthcoming, 2011)
  

Who Will Step Up to be the Chief ?

Lathan's salary is/was allegedly in the low six figure range, a respectable salary for someone who is charged with making certain that everything runs smoothly at every boxing event staged in New York State in a given year. If New York State is now unable or unwilling to pay a similar (or any) salary to her replacement in the midst of its budget crisis, who would step up and accept the throne? Marley suggested that someone such as retired heavyweight contender “Baby” Joe Mesi may be in the running. As articulate and well-liked as Mesi is in New York boxing circles, one has to believe that he does not have the grasp on boxing's legal and regulatory niceties that either Lathan, or a veteran from boxing's legal community in New York, would have if a respectable salary could be guaranteed. Without a strong Chairperson, the Commission is at risk of losing its edge in terms of continuing to take decisive steps to keep the bouts under its jurisdiction fair and safe, and doing its part to take the lead in suspending boxers it feels should not be participating in the Sweet Science any longer.

Lose the Battle, Lose the Wars?

If the Commission finds itself wholly unable to budget for a solid Chairperson or staff, will New York State as a whole begin to fall out of the running for major fight cards? In the past year, several notable boxing cards took place at Madison Square Garden, boxing made its reemergence at (the new) Yankees Stadium with a tremendous action bout between Miguel Cotto and Yuri Foreman, and Oscar De La Hoya's Golden Boy Promotions entered into an agreement to stage monthly cards at Brooklyn's Barclays Center. With a fractured Commission, does the annual number of bouts dwindle at the Garden and its smaller counterpart, the Wamu Theater? Does boxing become a one-off event at the new Yankees Stadium? Does Golden Boy decide that New York's house is in too much disarray to make the Barclays Center deal worthwhile? Probably not, as New York can house major events like few other states, but the undercurrent of uncertainty may be create concern for some.

No Addition Given the Subtraction?

The Chief Justice of Standing 8 Court recently moderated a forum at the headquarters of the New York County Lawyers Association during which the panelists discussed and debated the legal and regulatory issues surrounding the legalization of mixed martial arts in New York. Given the recentness of Marley's report at that time, the inevitable question came up: how would the Commission be able to handle the increase in the number of combat sports events if MMA were legalized, yet the budget cuts made as to the Commission continued? One answer is that with the estimated $1.3 million in direct revenue and $23 million in economic impact that MMA events can bring to New York State in a given year, the windfall alone could help pay for the upkeep of a respectable Commission. Indeed, it is beyond question that venues from Nassau Coliseum, to Madison Square Garden, to University at Buffalo Stadium would sell out in a matter of minutes in the face of a UFC or Strike Force card. Unfortunately, however, any direct revenue generated would likely go straight into the more general budget pool, and likely not be earmarked exclusively for the Commission. In sum, the recent subtraction could make the addition of more combat sporting events a daunting prospect for the Commission unless MMA's legalization was attached to a revamped budget for the Commission. As an aside, here's hoping that the day is near where East Meadow, Long Island's own Matt Serra and other New York-raised MMA talent will finally get the opportunity to dazzle their hometown fans without having to place them all on a bus back from Atlantic City or Newark afterwards.

Who'd be There to Keep the Foxes Out of the Hen House?

One strong feature of the Commission is the arbitration/ mediation mechanism that it has been in place to handle the contractual disputes that arise between boxers and their management. The result is an economical way to avoid costly litigation in New York State, a tremendous benefit to the many boxers whom toil away at their craft for minimal pay in New York's gyms while awaiting their breakthrough opportunities. Many of these boxers already rely on the goodwill of area attorneys/ boxing enthusiasts to look over their agreements on the arm and make sure they are not being robbed by their prospective manager or promoter. Many of those same enthusiasts, however, may be not be as generous with their otherwise billable time if it meant having to stage a full-blown litigation if the Commission one day did not have the budget to stay up to speed with its arbitrations and mediations. Perhaps New York law firms could handle such disputes on a per diem or pro bono basis for the Commission if it came to that, or perhaps a law school's sports law clinic, such as those at Valparaiso or University of Vermont, could step in. Without the Commission staying on top of such dispute resolution itself, however, it is very likely that some New York-based boxers would fall through the cracks and be subject to abuse without any economical source of recourse if the Commission could one day no longer attend to their needs due to budget cuts.

Standing 8 Court could probably continue on for a long time with the unsettling potential implications of the recent budget cuts on the future of boxing in New York State. These above issues, however, should be enough of a contribution for one night to the healthy debate as to why New York State should give some thought to not putting Lathan, and the Commission as a whole, out of commission. On behalf of the New York State combat sports community, Standing 8 Court asks that New York State find a way to keep the Mecca of Boxing, Madison Square Garden, and boxing's smaller houses of worship throughout New York, flush with events, fans, and Commission employees capable of making sure everything runs smoothly. Maybe boxing and MMA will not knock out the budget deficit themselves, but at least they can be given the opportunity to do their small part to provide an escape to the New York taxpayers who look forward to attending their events.

With only five minutes to go before the union's deadline to decertify last Thursday -- a move that might have obliterated the NFL as we know it today -- a player walked into the negotiating room that included commissioner Roger Goodell, league attorney Jeff Pash, NFLPA executive director DeMaurice Smith and union president Kevin Mawae and declared: "We're done! We're decertifying."

7) With the NFLPA decertified, could college players skip the NFL draft and sign with NFL teams?

No, at least not yet. First off, if the league, as expected, shuts down operations, it could cancel the 2011 NFL Draft, which is scheduled to take place between April 28 and 30. The NFL is unlikely to cancel the draft, however, due to language in Article XVI of the collective bargaining agreement and since teams have prepared for it and doing so would only elevate the chaos of the labor crisis. Therefore, absent a legal challenge, the draft will likely remain the exclusive process by which amateur players join the NFL.

Once the NFLPA decertifies, however, a college player or a group of college players could bring an antitrust challenge against the NFL over the draft. The lawsuit would likely argue that the draft harms them economically, and harms competition in general, since college players could earn more income and play on their preferred teams if they were free agents and not subject to the draft. If a court were sympathetic to the argument, it could issue an injunction postponing the draft until after an evaluation of the antitrust challenge.

Alternatively, star freshman or sophomore players could challenge the NFL's draft eligibility restriction that players be three years removed from high school before they are draft eligible. Without the labor exemption protecting the eligibility restriction, a court may reason that certain players are good enough to attract NFL teams before they are three years removed from high school and thus the restriction against them harms competition for players, since players "good enough" to turn pro are denied the chance.

• Seven percent of the players in the preseason Top 25 -- 204 in all (1 of every 14) -- had been charged with or cited for a crime, including dozens of players with multiple arrests.

• Of the 277 incidents uncovered, nearly 40 percent involved serious offenses, including 56 violent crimes such as assault and battery (25 cases), domestic violence (6), aggravated assault (4), robbery (4) and sex offenses (3). In addition there were 41 charges for property crimes, including burglary and theft and larceny.

• There were more than 105 drug and alcohol offenses, including DUI, drug possession and intent to distribute cocaine.

• Race was not a major factor. In the overall sample, 48 percent of the players were black and 44.5 percent were white. Sixty percent of the players with a criminal history were black and 38 percent were white.

• In cases in which the outcome was known, players were guilty or paid some penalty in nearly 60 percent of the 277 total incidents.

* * *

Anderson is already familiar with the consequences of disregarding a court order. He spent a year in prison between 2006 and 2007 for refusing to testify in related proceedings against Bonds. Assuming Anderson does not have a change of heart -- and his lawyer, Mark Geragos insists that he won't -- he could spend as much as a month in this prison this time around. While the penalty may seem duplicative and unnecessary, since Anderson has already spent considerable time in prison for Bonds and it appears that additional prison time will not change his thinking, Judge Illston does not want to reward Anderson for choosing his loyalty to Bonds over his civic obligation to a court.

Even without Anderson's live cooperation, prosecutors can still use Anderson's voice to implicate Bonds. In a taped conversation of Anderson and Bonds' former business partner, Steve Hoskins, from 2003, Anderson boasts that he provided Bonds with "the Clear" (tetrahydrogestrinone or THT). Also in the conversation, Hoskins characterizes Bonds as "taking those shots." . . . .

* * *

Bonds' attorneys will also have their work cut out for them in explaining why their client would decline an offer of immunity when appearing before the grand jury. Bonds had to agree to testify truthfully about drugs; he refused. Judge Illston ruled that such a piece of evidence is admissible. During the trial, Bonds' attorneys will probably reason that their client did not need immunity since, in their view, he was already telling the truth when stating he did not use steroids. A jury may conclude, however, that Bonds was worried more about how accepting the immunity offer would have harmed his baseball legacy than about how declining the offer would have harmed his legal standing.

* * *

“after a prospective player's last regular season college or conference championship game (excluding any post-season bowl game) or December 1, whichever is later, of the college football season immediately prior to the year in which such prospective player would be eligible to apply for the NFL Draft.”

The DePaul Journal of Sports Law & Contemporary Problems will host its annual sports law symposium, A Rule is a Rule: Compliance in the World of Sports, on March 4th, 2011. During this event, panelists will discuss a variety of legal issues currently arising in the world of sports. In line with our organization's mission statement, the symposium will investigate the intersection between law and sports with a focus on today's most important sports law issues, and discuss the contemporary problems that result.

Last year, our symposium was a great success. In fact, our symposium was recently acknowledged at the prestigious National Sports Law Institute Conference as being “an excellent Conference.” Panelists at our previous conference included representatives from the National Football League, the Big Ten Conference, the Chicago Cubs, and notable professors from Sports Law academia.

This year we are striving to hold another highly successful symposium to uphold the tradition. Our panelists will include compliance experts from universities, as well as scholars who have written and taught on the subject.

Compliance is a very broad topic. In the legal field, our entire careers focus on compliance with rules, whether they be federal law, state law, or bylaws within an organization. This symposium will explore issues of compliance that are particularly relevant in sports. We will have two panels: the first panel will focus on compliance in college sports, while the second panel will address compliance in professional sports

[Red Sox Assistant GM] Allard Baird, who oversees the club's pro scouting department, was assigned to scout Crawford for most of the second half of the 2010 season.

"I knew they were scouting me," Crawford said. "Coaches would tell me this guy asked about you, or that guy."

But he said he had no inkling they were monitoring him off the field, too.

"I definitely look over my shoulder now a lot more than what I did before," he said. "Just when he told me that, the idea of him following me everywhere I go, was kind of, I wasn't comfortable with that at all.

"I don't know how they do it, how much distance they keep from you when they watch you the whole time. I definitely check my back now, at least 100 yard radius. I'm always looking over my shoulder now. Now I look before I go in my house. I'd better not see anything suspicious now."

In addition to being an engaging teaching tool for instructors teaching drafting practices for sports venue agreements, this book is valuable to any sports law practitioner wanting to learn more about these state-of-the-art drafting practices. Beginning with the drafting of the seminal lease agreement, the book leads the reader through a series of best-practices drafting techniques for every major sports venue–related agreement, including naming rights agreements; presenting sponsorship agreements; media rights and concessions agreements; and agreements with state-operated entities. Hypothetical drafting exercises are included in each chapter for classroom use.

I have a new column up over at the Huffington Post that takes a closer look at what might happen as we get closer to a lockout in the NFL. Here is an excerpt. You can find the full column here… And, if you are looking for a summary of the major work stoppages in pro sports history, you can click here…

********

It's all a guessing game at this point, but what is the likelihood of an extended work stoppage?

As we get closer to the expiration of the NFL Collective Bargaining Agreement, the great unanswered questions remain: Will there be a work stoppage? And, if so, how long will it last? It's anyone's guess as to when the two sides will reach an agreement (and everyone is guessing), but looking back at the past is often a good way to predict the future. And, a closer look at the "doomsday" work stoppages of the past -- where at least one regular season game was canceled -- reveals a fairly clear trend. Significant work stoppages occurred when one side was looking for a sea change--some radical transformation of the relationship between the parties. For example, in 1998-99, the NBA owners insisted on (and got) a cap on maximum player salaries. The owners locked out the players and 464 total games were canceled, including the NBA All-Star Game. In 1994-95, the MLB owner insisted on (and did not get) a salary cap. The players went on strike and 920 games were canceled, including the postseason and the World Series. In the best professional sports work stoppage movie of all time, the 2000 movie The Replacements (the Detroit News raved, "it's better than average"), professional football players went on strike late in the season, apparently because of "salary disputes" (it's not clear who got what, but Shane Falco did save the day).

And, most recently, in 2004-2005, the NHL owners insisted on (and got) a salary cap. The owners locked out the players and the entire season was cancelled, including the playoffs and the Stanley Cup. Other lengthy work stoppages were caused by fights regarding basic rights of free agency for the players. In each of these cases, one side claimed that the current system was broken (see the chart here for more details).

In the current negotiations, we're not dealing with fights over the creation of free agency or the implementation of a salary cap. The players have free agency and the owners have a cap. But, are the owners asking for a sea change? That's a difficult question. One could make an argument that the NFL's latest proposal for a rookie wage scale--which could actually impact a majority of NFL players--would represent something close to a sea change. But, despite the NFL's proposal, it's difficult for anyone to argue--even the owners--that the system is broken. The NHL owners were willing to cancel an entire season because they believed they lost less money by not playing games than by playing games. That is certainly not the situation facing the owners and their multi-billion dollar television deals.

So, if the past is any guide, we may not be looking at a major work stoppage for the NFL...

The Coming War: Sports Labor Relations

With looming lockouts in both the NBA and NFL, panelists will discuss the legal implications of reaching a deal. With the changing economics of the game, these CBAs will have to be more creative from a legal sense than ever before. How can both sides reach an agreement to avoid missing an entire season?

Russ Granik
Vice Chairman - Galatioto Sports Partners

Russ Granik, former Deputy Commissioner and Chief Operating Officer of the National Basketball Association, joined Galatioto Sports Partners, one of the leading firms in the sports finance and advisory business, as Vice Chairman in October 2006. He was a guiding force in helping to establish the National Basketball Association as the most popular sports league in the world. Mr. Granik represented the league in a wide range of successful projects, such as collective bargaining agreements, television contracts and the NBA's involvement in international competition, including the last five Olympics, as a member of USA Basketball.

Mr. Granik joined the NBA in 1976 as a staff attorney. He became Assistant General Counsel in 1978 and General Counsel in 1980. When David J. Stern was elected NBA Commissioner in 1984, he named Mr. Granik to succeed him as Executive Vice President. In 1990, Mr. Granik was elected Deputy Commissioner by the NBA Board of Governors.

During his tenure, Mr. Granik participated in every major business negotiation on behalf of the NBA and was also the chief negotiator for the league in collective bargaining that resulted in agreements with the National Basketball Players Association in 1988, 1995, 1999 and 2005.

From 1996-2000, he served as the President of USA Basketball, the United States' national governing body for international basketball competition. From 1989-96, he was a Vice President of USA Basketball and, in that role, was instrumental in working out the details of the participation of NBA players beginning with the 1992 Olympics. In November 2005, Mr. Granik received USA Basketball's Edward S. Steitz Award, which recognizes individuals for their outstanding contributions to international basketball.

Mr. Granik served two terms (2003-2007) as Chairman of the Board of the Naismith Memorial Basketball Hall of Fame, where he has been a Trustee and member of the Executive Committee since 1984, and he is also a member of the Board of Athletes for Hope.

Effective November 1, 2010, Mr. Granik was retained by ESPN as its Labor Analyst, providing on-air commentary on current collective bargaining issues in professional sports.

Mr. Granik graduated Magna Cum Laude in 1969 from Dartmouth College, where he was elected to Phi Beta Kappa, and Cum Laude from Harvard Law School in 1973. He was associated with the law firm of Breed, Abbott & Morgan in New York before joining the NBA.

Jackie MacMullan - Moderator
Columnist - ESPN

Jackie MacMullan is an ESPN analyst who spent nearly 20 years as a beat writer and columnist for the Boston Globe. She worked on Sports Illustrated's staff from 1995-2000 and has written three books, including “When the Game Was Ours”, which chronicled the rivalry of Larry Bird and Earvin “Magic” Johnson. MacMullan was recently named the first female recipient of the Curt Gowdy Media Award, given by the Naismith Basketball Hallof Fame for “outstanding career achievement in writing basketball.”

MacMullan is a cum laude graduate of the University of New Hampshire, where she played four years of basketball, leading the team in scoring as a sophomore, and serving as a team captain in her senior year. She was chosen as a recipient of both the Robert Perry Student-Athlete Award and the Dean Williamson Award, given to the student who “excels in scholarship, athletics and loyalty to the University.”

Mike McCann
Legal Analyst - Sports Ilustrated

Michael McCann is an Associate Professor of Law at Vermont Law School, where he teaches sports law, business law, and administrative law courses. He is also a Legal Analyst for Sports Illustrated and the “Sports and the Law” Columnist on SI.com.
Professor McCann is also co-founder of the Harvard Law School Project on Law and Mind Sciences and the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where he was an Assistant Professor of Law between 2005 and 2008 and where he now teaches a sports law class every summer. During his three-year tenure at Mississippi, Professor McCann was twice honored with the Professor of the Year Award and he received the Professor of the Year for First-Year Courses Award in all three years. He was also honored by his colleagues with the Shirley Norwood Jones Faculty Award in 2008.

In the fall 2008 semester, Professor McCann was a Visiting Associate Professor of Law at Boston College Law School. He also served as Chair of the Association of American Law School's Section on Sports and the Law in 2008.

Prior to becoming a law professor in 2005, Professor McCann served as counsel to college football star Maurice Clarett in his lawsuit against the National Football League and its age eligibility rule. He also served as a Visiting Researcher at Harvard Law School and Legal Counsel to U.S. Congressman Marty Meehan.

A Massachusetts native, Professor McCann received his LL.M. from Harvard Law School (2005), his J.D. from the University of Virginia School of Law (2002), and his B.A. from Georgetown University (1998). Professor McCann has been interviewed on HBO's “Bob Costas Now”; CNN's “The Glenn Beck Show”, “American Morning”, and “Headline News”; CNBC's “Morning Call” and “Power Lunch”; and the Jim Rome Show. He has also been interviewed on NPR, BBC, the Dan Patrick Show, and by the New York Times, Washington Post, The New Republic, and Business Week.

Tom Penn
NBA Analyst - ESPN

Tom Penn is an NBA Analyst on ESPN where he is regularly featured as a basketball operations expert focussing on advanced analytics, salary capology, NBA Draft, player trades and collective bargaining issues. During the free agency frenzy of 2010, Penn operated ESPN's cutting edge “cap machine” on SportsCenter where he manipulated a one-of-a-kind touchscreen to illustrate potential destinations for LeBron James and other marquee free agents.

Prior to joining ESPN, Penn spent four seasons in Portland as Vice President of Basketball Operations and Assistant General Manager of the Trail Blazers. Penn is widely known as a top expert on the NBA salary cap and Collective Bargaining Agreement. Penn worked with general manager Kevin Pritchard on negotiating player contracts, structuring player trades, evaluating talent and managing day-to-day basketball operations.

Penn came to Portland from the Memphis Grizzlies, where he served as assistant general manager/legal counsel from 2000-07. For more than five NBA seasons in Memphis, Penn worked closely with legendary NBA executive Jerry West in player and team related matters, as West built the Grizzlies into a perennial playoff team.

In 1999, Penn began his work with the Grizzlies when he joined owner Michael Heisley's NBA acquisition team. Penn helped advise and guide Heisley through the complicated acquisition process until Heisley ultimately purchased the Vancouver Grizzlies in May 2000.

After graduating from the University of Illinois law school in 1993, Penn worked as a criminal defense attorney. Six weeks after being admitted to the Illinois bar, Penn defended back-to-back jury trials of felony armed robbery and felony drug possession cases. Within two days both juries returned not guilty verdicts, and Penn's courtroom legal career was underway. Over the next five years, Penn successfully litigated over 20 other criminal jury trials.

From 1994-1999 Penn simultaneously developed his expertise in professional basketball. Penn began representing basketball players as a player agent in 1994, and in 1995 he founded a company that organized and performed professional basketball tours of Europe designed to help American players showcase their skills for European teams. The Upper Deck trading card company sponsored two European tours in 1997 and 1998. Fox Sports television filmed and broadcast a documentary of the 1998 tour.

Penn graduated with honors from the University of Notre Dame in 1990. He and his wife, Melissa, are the proud parents of their daughter, Grace, and son, TJ.

George Postolos
President & CEO - The Postolos Group

George Postolos, President & CEO of The Postolos Group LP, has a distinguished history in the sports business. His firm has advised numerous bidders for NBA, MLB and NFL teams and other sports properties. As the President and CEO of the Houston Rockets, Postolos spearheaded development of Toyota Center, conceived and negotiated the television partnership with the Houston Astros and sublicense to Fox Sports Net, and led the growth in the Rockets business that more than tripled the value of the franchise.

As Special Assistant to NBA Commissioner David Stern, Postolos assisted with matters pertaining to administration and management of the league including collective bargaining, efficient operation of league offices, national television, international expansion, and retail brand extensions.

Postolos is a graduate of Harvard College and Harvard Law School, and a former associate of Wachtell, Lipton, Rosen & Katz.

Andrew Zimbalist
Robert A. Woods professor of economics - Smith College

Following the expiration of the express term of this Agreement ... if the NFLPA is in existence as a union, the Parties agree that none of the Class Members ... nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and the NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later.

* * *

There are a variety of reasons why a player/owner would prove problematic.

For one, Jordan would hold membership in the two groups that are negotiating a new collective bargaining agreement. While owners and players are not necessarily competitors, since they need each other for the NBA to exist, they do hold differing views about various matters that are subject to collective bargaining. Those matters include limits on player salaries, access to unrestricted free agency and distribution of league revenue. Jordan, as player/owner, would represent both players and owners, each perhaps skeptical of his loyalty and stance on issues -- would he be "labor" or "management"?

* * *
A second concern would arise when Jordan the owner "negotiates" a contract with Jordan the player, with Jordan the owner paying Jordan the player. A negotiation between one's right and left arm normally doesn't qualify as "arms-length" bargaining. To be sure, Bobcats general manager Rod Higgins would play a key role in the Jordan-Jordan negotiation and Jordan could simplify the situation by agreeing to take the league minimum for veteran players ($1.2 million). Still, the players' association, which has a stake in seeing player salaries go up, may disfavor a player taking less than his market value.

A third concern would center on game-related decisions that might awkwardly amplify Jordan's dual role as owner/player. For instance, what happens if Bobcats coach Paul Silas doesn't play Jordan as much as Jordan believes he should play? Would it be appropriate for Jordan the owner to fire the coach? Or how about if Jordan's teammates don't pass him the ball enough -- would those players soon find themselves on the bench or on other teams?

A fourth concern would relate to precedent: If the NBA allows Jordan to be owner/player, would that set the table for other super rich players, such as LeBron James or Kobe Bryant, to buy equity stakes in their teams? . . .

* * *

The NBA and players' association have contemplated these concerns and include in the current CBA language that would generally prevent an owner from being a player and vice versa. Under Article XXIX, Section 8, "no NBA player may acquire or hold a direct or indirect interest in the ownership of any NBA team." However, the clause allows a player to own shares in any publicly traded company that directly or indirectly owns an NBA team. As a result, for Jordan to own and play for the Bobcats, he would have to convert his ownership interest to that of owning a publicly traded company that owns the Bobcats. While that type of transaction is possible, it is also complicated and would require, among other steps, registration with the Securities and Exchange Commission, an initial public offering and NBA approval of the Bobcats' new ownership structure.

* * *

Congratulations to the all of the students who competed in the 4^th Annual National Baseball Arbitration Competition at Tulane Law School. We had an incredible competition this year, featuring teams from law schools across the country, including Harvard, Duke, UVA, Fordham, William & Mary, Cardozo, Notre Dame, and Georgia. Following the competition, we also had a mini-symposium featuring (as one commenter to my previous post put it) "a monster assembly of baseball guys." A special thanks to Armando Velasco, T.J. Henry, and the members of the Tulane Sports Law Society for all of your hard work in putting this competition together.

And, a special congratulations go out to the winners of the competition. Here they are…

Semifinalists: William & Mary Law School (R.C. Rasmus, Laura Brymer and Mike Bagel) and Arizona State University College of Law (Taylor Alberstadt and Nick Forner)

Second Place: University of Denver College of Law (Scott Neckers and Matt Hofmeister)

Winner: University of Miami School of Law (Jason Sosnovsky and Mark Lesorgen)

* * *

Even if the recording is admissible, Bonds's lawyers could scrutinize the quality and authenticity of the recording as well as the specificity of Anderson and Hoskins's remarks. They are also likely to fuel skepticism as to Bonds possessing any knowledge of the conversation.

Bonds's lawyers could also question whether Bonds understood that the Clear was in fact a "steroid", since it was not specifically banned by Major League Baseball at the time, nor was it specifically classified by the federal government as an illegal steroid. While such a strategy may seem like opportunistic word parsing, keep in mind the wording of the criminal counts in the Bonds indictment (which earlier this week was condensed to five counts, though the exact same penalties remain -- if convicted on all counts, Bonds, as a first time offender, would likely serve between 15 and 21 months in prison). Count One claims that Bonds knowingly lied under oath during grand jury questioning and specifically during this exchange:

Government lawyer: "Let me be real clear about this. Did he [Anderson] ever give you anything that you knew to be a steroid?"

Bonds: "I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that."

Government lawyer: "Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroids that he gave you?"

Bonds: "Not that I know of."

With those statements in mind, Bonds could insist that he did not know the Clear was a steroid. Indeed, Bonds could argue, why should he have presumed that the definition of a steroid in a grand jury proceeding automatically included the Clear or any substance that evades detection in a urine test? Put another way, Bonds and his lawyers could portray "steroid" as an ambiguous word in the context of a new cocktail substance like the Clear and thus vulnerable to incompatible interpretations. Following that logic, Bonds may not have knowingly lied in response to questions about steroids when the questioner (government prosecutor) and answerer (Bonds) assumed different meanings of the operative word: "steroids".

* * *

• Michael Weiner, Executive Director and General Counsel, Major League Baseball Players Association.
• Jon Fetterolf, Partner, Williams & Connolly LLP in Washington D.C.
• Larry Silverman, Senior Vice President and General Counsel, Pittsburgh Pirates.
• Carter DeLorme, Partner, Jones Day in Washington D.C.; performs salary arbitration work for the Boston Red Sox and Texas Rangers.
• Clark Griffith, Attorney; AAA Arbitrator; former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties.
• Fernando Tamayo, former International Scouting Coordinator for the Boston Red Sox.
• Darren Heitner, CEO, Dynasty Athlete Representation; Chief Editor, SportsAgentBlog.com.
• Jorge Arangure Jr., Senior Writer, ESPN The Magazine.
• Josh Byrnes, Vice President of Baseball Operations, San Diego Padres.
• David P. Fidler, Co-author, Stealing Lives: The Globalization of Baseball and the Tragic Story of Alexis Quiroz.

* * *

Goodell's first project upon being hired full-time by Rozelle in 1984 was to persuade college players not to sign with the rival United States Football League.

Goodell and longtime Cowboys executive Gil Brandt traveled to bowl games and All-America gatherings to argue that the USFL's money was fool's gold. "We had an 800 number set up to ring into Roger's office, and gave it to all the players," Brandt says. "He'd never lie to 'em. He'd never tell a fourth-round guy he was going in the first round. But I think we saved some guys from signing in the USFL."

At a black-college all-star game in 1985, Goodell laid a pro-NFL pitch on a little-known receiver out of Mississippi Valley State-Jerry Rice. He signed with the 49ers.

Have professional athletes decertified their union in the past?

Yes. On November 6, 1989, the Executive Committee of the NFLPA notified the NFL Management Council that it was abandoning all collective bargaining rights. On December 5, 1989, player representatives from the then-24 NFL teams met and unanimously voted to decertify, thus ending the NFLPA's status as the players' collective bargaining representative. The NFLPA then re-formed as a voluntary professional association. The "new" NFLPA enacted new by-laws which prohibited the NFLPA or its members from engaging in collective bargaining with the NFL.

Was the 1989 decertification successful for the NFLPA?

Very. Following decertification, a small group of players filed an antitrust suit challenging the restrictive "Plan B Free Agency" rules that the owners unilaterally implemented (as their last, best offer) after the expiration of the CBA (McNeil v. NFL). A jury found that Plan B was an unreasonable restraint of trade and awarded damages to four of the players, ranging from $50,000 to $240,000. Players then filed a class action suit (White v. NFL) challenging Plan B and all free agency restrictions (including the draft). At that point, the players had tremendous leverage, and the parties agreed to settle the litigation. The settlement -- which included the creation of real free agency for the players -- was then embodied in the new CBA.

How long did it take for the NFLPA to achieve their victory when they decertified in 1989?

The players decertified in December of 1989 and the jury reached its verdict in the McNeil case in September of 1992. A new CBA was signed in February of 1993.

Decertification has been referred to as the "nuclear option," the "silver bullet," the "doomsday weapon," and a "tender contemplation on duty and the crippling weight of expectancy" (that last one may have been about The King's Speech). Is decertification really that powerful?

Yes and no. Yes, because it subjects the owners to antitrust attack and treble damages. Even the mere threat of decertification can help shift collective bargaining leverage in favor of the union.

No, for two reasons: First, depending on the timing of the decertification, the NFL will try to challenge the decertification as a "sham." In essence, this argument is that the decertification is not "real" -- it is being done merely to improve the players' bargaining position, and in reality the NFLPA is still acting as a union behind the scenes (and, they will point to the decertification and re-certification in 1989 as further proof that it is being used as a bargaining tactic rather than for any genuine reason). The NFL will argue that the union is still representing the players and still bargaining on behalf of the players, and therefore the labor exemption should continue to apply.

Second, the NFL will argue that the NFLPA's sham decertification violates its duty to bargain with the NFL in good faith.

(The NFL made both of these arguments in 1989, and was unsuccessful on both counts.)

And, even if decertification is successful, it is only the first step in a lengthy process. Decertification merely opens the door for the players to bring an antitrust suit against the NFL and its teams. The players will then have to fund a potentially long and expensive antitrust suit -- an antitrust suit they could lose.

Although Electronic Arts' NFL games have sold well since 2004, they have attracted criticism for lacking innovation. Prices for Madden NFL games have also risen in the absence of competition from other NFL games. Those and other consequences underscore a central concern of section 1: an absence of competition will lead to an inferior market. The exclusive Madden contract is also the subject of Pecover v. Electronic Arts, a class action lawsuit recently brought by disenchanted video game players. The suit contains a number of claims, including those based on the Sherman Act. While neither the NFL nor the NFLPA is a party to the litigation, their exclusive contract with Electronic Arts could eventually face a section 1 challenge similar to the one confronted by the NFL in American Needle. Plaintiffs in such a claim would likely assert that interactive football video game software is a sufficiently discrete product market - a proposition supported by the U.S. District Court for the Northern District of California in Pecover. With some level of persuasion in light of the aforementioned data on prices and commentary on innovation, the plaintiffs could also maintain that Electronic Arts's exclusive contract for NFL video games produces more anticompetitive injury than procompetitive benefit.

I have little doubt the Madden series would be considerably better if [Electronic Arts] developer Tiburon had a competitor threatening it each year . . . Does Madden NFL 11 play better than Madden NFL 2005? Yes. There's no question that, over time, the gameplay has seen improvements thanks to better animations and smarter AI. But because there is no one else to stand up against it, Tiburon can schedule its innovations at its leisure. . . .

I don't expect Tiburon to start taking big chances and making more exciting and more substantial improvements. Why would they? And that's what sets the Madden series apart from the majority of other games. No one can rightly compete, because the NFL license is football and EA holds onto it tightly.

Sure, Microsoft owns the Halo license, but anyone has a right to make a first-person shooter and it can legitimately stand on its own. You can't make a football game without the NFL teams and players. It's an automatic fail.

* * *

A settlement might also benefit Wilpon from the standpoint of his coveted position as an owner of a major league franchise. For one, his team would likely be handicapped by a drawn-out litigation. There would be resulting uncertainties as to how much the team could spend, especially on players. For instance, how would the team approach contract discussions with prized shortstop Jose Reyes, who is scheduled to become a free agent after the 2011 season, if the team's owner might be forced to pay hundreds of millions of dollars in the Madoff fallout? Or how would the Mets approach trade offers for ace Johan Santana, who is due a guaranteed $72 million over the next three seasons? And would the team be forced to change its draft strategy to one that involves drafting a larger percentage of amateur players who would be cheaper to sign over more talented, but expensive prospects?

A settlement might also prove beneficial to Wilpon as a big league owner because of Picard's assertion that $90 million from Madoff's fund was used to finance the Mets. If true, such an assertion could cause substantial problems for Wilpon in his relationship with other big league owners and with the commissioner's office. It would mean that Madoff's victims -- many of whom lost their life savings to Madoff's Ponzi scheme -- effectively paid the salaries of million-dollar Mets players.

Empowered with his "best interests of the game" authority, and also with language from the franchise agreement Wilpon signed with Major League Baseball when he purchased the Mets, Selig could potentially discipline Wilpon and encourage him to leave the fraternity of big league owners -- a move that could be facilitated if other big league owners shared the view that Wilpon should not be among them. . . .

* * *

“The arrogance of the NCAA to say, ‘we have the right to do this,' … is what troubles me the most,” Robertson told Yahoo! Sports on Wednesday. “The University of Cincinnati gets a fee each time my picture is used on a card. I don't. When I played there, there was nothing like this ever agreed to.”

Robertson put his considerable reputation on the line Wednesday and joined a 2009 class action suit against the NCAA, first championed by former UCLA Bruin star Ed O'Bannon, as a name plaintiff.

* * *

Joining Robertson in the additional complaint is former Connecticut player Tate George, whose buzzer-beating shot over Clemson in the 1990 NCAA tournament has been resold in DVDs and featured in advertising campaigns for Vitamin Water, McDonald's, Burger King, Buick, Chrysler, and Cadillac. It was recently used in an online advertising campaign to sell Egg McMuffins.

Also now on board is former Ohio State football player Ray Ellis, who starred in the 1980 Rose Bowl. A number of games he participated in are being sold on commemorative DVDs or rebroadcast on the Big Ten Network.

* * *

* Joseph M. DeGuardia, Esq., Owner of Star Boxing, a boxing promotional company, and President of the Boxing Promoters Association;

* Michael DiMaggio, Esq., Associate, Collins, McDonald & Gann, P.C., dietary supplements and sports drug defense;

* Kurt Emhoff, Esq., Attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager;

* Paul Stuart Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee of the New York County Lawyers Association; and

* David N. Weinraub, Managing Partner, Brown & Weinraub, PLLC, New York UFC Lobbyist.

Sponsor: EMIPS Committee

FREE/RSVP: dlamb@nycla.org

* * *

Goldweber v. Sterling Equities is a class action lawsuit filed last July in the U.S. District Court for the Southern District of New York. The named plaintiff, Elyse Goldweber, is the widow of a former employee of Sterling Securities, a real estate investment firm that owns the New York Mets, among other businesses. Sterling Securities maintained a 401(k) retirement plan worth about $17 million, 92 percent of which was invested with Madoff, whose fraudulent actions wiped out most of the plan.

* * *

Goldweber's primary claim boils down to a "hear no evil, see no evil" charge: Wilpon and his associates should have questioned Madoff's investment strategy, especially given the numerous commentaries that had raised questions about Madoff's almost unbelievable returns. Had Wilpon inquired seriously into Madoff's remarkable track record, he would have developed suspicions that Madoff was not investing, but rather ripping off investors. . . .

* * *
[Picard v. Katz & Wilpon} is known as a "clawback" lawsuit: If an investor "earned" any profits in a fraudulent enterprise up to six years prior to discovery of the fraud, those profits themselves can be deemed fraudulent. The underlying logic is that those profits were generated from fabricated numbers and from money that was stolen from other investors, many of whom are left with nothing in the Ponzi scheme. If deemed fraudulent, profits are then disgorged from the investor and re-distributed to victims of the fraud. Even an investor's principal investment can be "clawed back" if it was recovered in bad faith, such as recovering the principal within 90 days of a hedge fund filing bankruptcy (in the case of Madoff's fund, the bankruptcy filing date was Dec. 11, 2008, meaning that Katz and Wilpon needed to have recovered their principal no later than Sept. 11, 2008). The potential damages in a successful clawback lawsuit against Wilpon could go into the hundreds of millions.

* * *

While Major League Baseball has not weighed in on Wilpon's woes, it is in the best interest of the league and Wilpon's fellow owners that lawsuits do not become sources of league-wide embarrassment. To the extent that commissioner Bud Selig and the owners can encourage Wilpon to reach private settlements, they will likely do so.

The Major League Baseball Players' Association also has a stake in the matter. Considering that Wilpon pays the Mets' salaries, his financial wherewithal, and that of any other Mets' owners, are matters of great significance for Mets players. While the league could provide the Mets with financial assistance if need be (or go a step further and take over control of the franchise, as occurred with the Texas Rangers last season), a financially-capable Mets ownership would prove the best outcome for all considered.

* * *

My student group, the USF Sports & Entertainment Law Association (SELA) is having Mr. Vaccaro come speak on the "business" of college sports on Tuesday February 1 at 5pm. As Mr. Vaccaro is prominently involved in recent lawsuits between student-athletes and the NCAA, such as the O'Bannon case, he will be coming to USF to speak about his experiences in these lawsuits, and talk about his viewpoints on how the NCAA needs to be transformed to better support student-athletes.

This event is being organized both by the Sports & Entertainment Law Association, as well as the graduate Sport Management Program at USF.

* * *

In fact, O'Neal's management of his brand began well before he signed an NBA contract or any endorsement deals. When he was in high school, he created his own emblem based on his dunk style and trademarked it as the DUNKMAN, in case he ever got a shoe deal in the future.

* * *

In response to Carfagna's question about how his decisions have changed as he nears the end of his playing career, O'Neal discussed his evolving approach to basketball and how it affects his role on the Boston Celtics.

“When I first started playing basketball, I got all the blame when we lost, like a CEO. So I had to put myself in CEO mode and say, ‘If I'm going to get blamed, this is how we have to do things,'” O'Neal said.

“Now I'm in a consultant role. It would not have been advantageous for me to come here and try to take over the team at age 38 when we already have these good players. I already took care of my “me time.” I've been healthy and have done a lot. I have my championships. I'm retired as a CEO. Now I'm a consultant – my teammates know that if they need me, I'm right over here.”

* * *

Tommy (The Duke) Morrison, 48-3 (42 KOs), once one of the most exciting heavyweight contenders in the world between his all-American looks, explosive punch, and questionable chin, made headlines this past week when he announced that he will not submit to HIV and hepatitis testing in advance of a possible February 25, 2011 bout in Montreal against journeyman Eric Barrak. The reason that Morrison's position is troublesome is plain to anyone who is familiar with Morrison's history. Starting in 1996, Morrison was out of the ring for nearly 11 years after reportedly testing HIV positive in advance of a scheduled match in Nevada against Arthur (Stormy) Weathers. Some probably anticipated that the next time the boxing world would hear anything about Morrison would be after he eventually succumbed to AIDS.

Morrison, however, miraculously persevered and returned to ring on February 22, 2007 with a second round TKO of John Castle after West Virginia granted him a boxing license. He fought again nearly a year later, this time in Mexico, and scored a third-round TKO of Matt Weishaar. In the second incarnation of his career, Morrison has alleged that he is not, in fact, HIV positive, and may have never been. Indeed, Morrison is quoted as saying “I'm not going to submit to a test that's not going to tell me anything[]” in connection with the testing order by the Quebec Boxing and Gaming Commission. The implication of that quote is that Morrison is 100% confident that he is free of HIV. But whether or not any such test would “tell [him] anything” about his HIV status is beside the point. When a commission mandates a testing regimen, it is acting on behalf of, and in furtherance of the objectives of, the government that created it. One can imagine, therefore, the precedent that would be created if someone such as Morrison were empowered by a commission to pick and choose which pre-licensing requirements he wished to comply with before boxing in a given jurisdiction. A quick look at the potential confusion that could ensue in Quebec follows...

Parker Allred, Note, From the BCS to the BS: why “championship” must be removed from the Bowl Championship Series, 2010 UTAH LAW REVIEW 183

Jessica K. Baranko, Comment, It's my name and mine alone: how Chad Ocho Cinco affects the right of publicity, 20 MARQUETTE SPORTS LAW REVIEW 463 (2010)

Luke P. Breslin, Comment, Reclaiming the glory in the ‘sport of kings' — uniformity is the answer, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 297 (2010)

Dustin E. Buehler and Steve P. Calandrillo, Baseball's moral hazard: law, economics, and the designated hitter rule, 90 BOSTON UNIVERSITY LAW REVIEW 2083 (2010)

David S. Caudill, Sports and entertainment agents and agent-attorneys: discourses and conventions concerning crossing jurisdictional and professional borders, 43 AKRON LAW REVIEW 697 (2010)

Walter T. Champion and Danyahel Norris, Why not row to the Bahamas instead of Miami: the conundrum that awaits Cuban elite baseball players who seek asylum and the economic Nirvana of free agency, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 219 (2010)

Ross E. Davies, It's no game: the practice and process of the law in baseball and vice versa, 20 SETON HALL SPORTS & ENTERTAINMENT LAW JOURNAL 249 (2010)

Nick DeSiato, Silencing the crowd: regulating free speech in professional sports facilities, 20 MARQUETTE SPORTS LAW REVIEW 411 (2010)

Ed Edmonds, At the brink of free agency: creating the foundation for the Messersmith-McNally decision — 1968-1975, 34 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL 565 (2010)

John Frega, Comment, The Performance Rights Act of 2009 and the Local Radio Freedom Act: will performance kill the radio star?, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 333-369 (2010).

Jonathan D. Gillerman, Comment, Calling their shots: miffed Minor Leaguers, the steroid scandal, and examining the use of section 1 of the Sherman Act to hold MLB accountable, 73 ALBANY LAW REVIEW 541-573 (2010)

B. Glenn George, Forfeit: opportunity, choice, and discrimination theory under Title IX, 22 YALE JOURNAL OF LAW AND FEMINISM 1 (2010)

Timothy Patrick Hayden, Can summer training camp practices land NFL head coaches in hot water?, 20 MARQUETTE SPORTS LAW REVIEW 441 (2010)

Noel H. Johnson, Book Note, Reviewing John H. Minan and Kevin Cole, The Little White Book of Baseball Law, 20 MARQUETTE SPORTS LAW REVIEW 657 (2010)

Lance C. Kearns, Book Note, Reviewing Kenneth L. Shropshire, Negotiate Like the Pros, 20 MARQUETTE SPORTS LAW REVIEW 663 (2010)

Kristen E. Knauf, Comment, If you build it, will they stay? An examination of state-of-the-art clauses in NFL stadium leases, 20 MARQUETTE SPORTS LAW REVIEW 479 (2010)

Robert H. Lattinville, Robert A. Boland and Bennett Speyer, Labor pains: the effect of a work stoppage in the NFL on its coaches, 20 MARQUETTE SPORTS LAW REVIEW 335 (2010)

Michael Levinson, (F)linging (I)ndispensable (F)reedoms (A)side: why FIFA's “6+5” will not survive, 17 INTERNTATIONAL & COMPARATIVE LAW QUARTERLY 191 (2010)

Christina M. Locke, Does anti-paparazzi mean anti-press?: First Amendment implications of privacy legislation for the newsroom, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 227 (2010)

Richard H. McLaren, Twenty-five years of the Court of Arbitration for Sport: a look in the rear-view mirror, 20 MARQUETTE SPORTS LAW REVIEW 305 (2010)

Susan McAleavey, Note, Spendthrift trust: an alternative to the NBA age rule, 84 ST. JOHN'S LAW REVIEW 279 (2010)

Matthew J. Mitten, James L. Musselman and Bruce W. Burton, Targeted reform of commercialized intercollegiate athletics, 47 SAN DIEGO LAW REVIEW 779 (2010)

Matt Mullarkey, Note, For the love of the game: a historical analysis and defense of final offer arbitration in Major League Baseball, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 234 (2010)

Jack P. Sahl, Entertainment law—the specter of malpractice claims and disciplinary actions, 20 MARQUETTE SPORTS LAW REVIEW 377 (2010)

David Tan, Affective transfer and the appropriation of commercial value: a cultural analysis of the right of publicity, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 272 (2010)

David F. Tavella, Duty of care to spectators at sporting events: a unified theory, 5 FLORIDA A&M UNIVERSITY LAW REVIEW 181 (2010)

Amy Tracy, Note, Athletic discipline for non-sport player misconduct: the role of college athletic department and professional league discipline and the legal system's penalties and remedies, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 254 (2010)

Leslie E. Wong, Comment, Our blood, our sweat, their profit: Ed O'Bannon takes on the NCAA for infringing on the former student-athlete's right of publicity, 42 TEXAS TECH LAW REVIEW 1069 (2010)

Kevin J. Worthen, The NCAA and religion: insights about non-state governance from Sunday play and end zone celebrations, 2010 Utah L. Rev. 123

Kate Zdrojeski, International ice hockey: player poaching and contract dispute, 42 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 775 (2010)

2009 Annual Survey: Recent Developments in Sports Law, 20 MARQUETTE SPORTS LAW REVIEW 497 (2010)

* Michael DiMaggio, Esq., Collins, McDonald & Gann, P.C.;

* Kurt Emhoff, Esq., attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager;

* Paul Stuart Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee of NYCLA; and

* David N. Weinraub, Esq., managing partner, Brown & Weinraub, PLLC, lobbyist for the UFC.

Sponsor: EMIPS Committee
FREE

. . . [P]rosecutors have signaled an interest in calling [Greg] Anderson to the stand, knowing that he would once again refuse to testify and therefore be placed in contempt of court. Prosecutors believe that a jury would interpret Anderson's refusal as a sign that Bonds knowingly lied under oath. Attorneys for Bonds are seeking to prevent prosecutors from deploying that strategy, and Judge Illston will have to determine whether prosecutors' calling Anderson to the stand with no expectation of him appearing would be more probative of Bonds's guilt or innocence or more prejudicial to Bonds, and disruptive of the proceedings.

Prosecutors also intend to call to the stand witnesses who are expected to testify that either Bonds told them of using steroids or that they saw him receive injections at the hands of Anderson. Kimberly Bell, Bonds' former girlfriend, and Bonds' former Giants teammate Bobby Estalella, are expected to claim that Bonds admitted in conversations that he used illegal performance-enhancers. Kathy Hoskins, Bonds' former assistant and the sister of Bonds' longtime friend/business manager Steve Hoskins, is apparently willing to testify that she saw Anderson inject Bonds. Such a statement would contradict Bonds' sworn testimony that no one except his doctor ever injected him with anything.

Also admissible, at least as of now, would be a portion of a recorded conversation purportedly between Steve Hoskins and Anderson, in which Anderson tells Hoskins that he injected Bonds with a performance-enhancing substance. Bonds' attorneys have requested that Judge Illston exclude the entire conversation, on grounds that Judge Illston's previous ruling requires that Anderson testify in order for him to be referenced.

Even if admissible, witness testimonies and recorded conversations would be subject to intense cross-examination by Bonds' attorneys, who would likely question witnesses' financial and legal motivations as well as their consistency of facts and recollection of specific detail from events that occurred a decade ago. Bonds's attorneys would also emphasize that conviction of perjury requires that the jury conclude, beyond any reasonable doubt, that Bonds knowingly lied under oath. If the government's case boils down to Bonds's words against those of witnesses about conversations and observances from years ago, it may prove difficult for jurors to lack any reasonable doubt.

* * *

Is a playoff really MORE FAIR? What does fair even mean? This year in college football, the BCS system had Oregon play Auburn for a trophy they called the national championship trophy. This left out other very good teams, particularly undefeated TCU. This wasn't fair. There was much griping about it, and rightfully so. It is absurd and somewhat arrogant to believe that we can use our eyes and our computer systems and our innate sense of the game to look at more than 100 Division I football teams playing somewhat self-determined schedules and simply pick the two best teams. The flaws in the system are obvious.

But aren't the playoff flaws obvious too? This year in the NFL, the playoff system included a seven-win team and took one 10-6 wild-card team while leaving two other 10-6 teams at home. The system made a 12-win team and two 11-win teams go on the road for their first game while three teams with 10 or fewer wins (including the NFL's first seven-win playoff team) played home games. This year, the NFL rewarded New England and Atlanta for their 14- and 13-win seasons by giving them an extra week to heal and homefield advantage. This seems like a seismic advantage. But is it really? We cannot argue that they promptly lost convincingly — making that one loss much more important than their stellar 16-game seasons. We cannot argue that 12 of the last 24 bye teams have lost their first week.

This latest addition in the Freakonomics-driven behavioral economics genre is probably the best. It is Scorecasting and to a sports fan it is a can't-put-down type of book. The book is written extremely well with a mixture of famous sporting anecdotes and hard statistics that include research of the authors and others.

Some of the eye-opening subject include:

1. very solid evidence that umpires bias games - however what is interesting is the bias is not random. The bias tells a story.
2. the subject of home-field advantage was mesmerizing. Turns out not at all what sports pundits tells us are true or at least not in the way you might think so.
3. incentives lie at the heart of the Chicago Cubs dismal century.
4. great use of numbers to show how desperate baseball players are to have a batting average of at least 0.300.
5. a look into why some stats are not telling us all we need to know (i.e. blocked shot stats in basketball).
6. why don't football coaches go for it on 4th down when it is a statistically correct move?

Turns out that psychology (namely loss aversion) and incentives dictate a lot of sports decision making . . . Great, fast read. Highly recommended.

* * *

[From another customer review]:

Some quick examples from chapters I enjoyed:

Why you should (almost) never punt in football, including an example of a coach who followed the philosophy to a state title. Also, why most coaches still punt, in spite of the evidence.

Why Tim Duncan's 149 blocked shots are more valuable than Dwight Howard's 232 (Answer: Duncan tends to block the ball to his teammates, Howard tends toward the spectacular swat that goes into the 4th row...then back to the other team.)

The incredible differences in strike zones when comparing a 3-0 count to a 0-2 count. (Hint: umps expand the zone in the former, shrink the zone in the latter, allowing the hitter to determine the outcome)

For more information, contact Dr. Linda Schoonmaker at The Citadal. Her e-mail is: Linda.schoonmaker@citadel.edu.

Two days before Super Bowl XLI in 2007, the game's two opposing head coaches posed with the trophy one of them would hoist after the contest. It was a fairly unremarkable event, except that both coaches were African American--a fact that was as much of a story as the game itself.

As Jeremi Duru reveals in Advancing the Ball, this unique milestone resulted from the work of a determined group of people whose struggles to expand head coaching opportunities for African Americans ultimately changed the National Football League. Since the league's desegregation in 1946, opportunities had grown plentiful for African Americans as players but not as head coaches--the byproduct of the NFL's old-boy network and lingering stereotypes of blacks' intellectual inferiority. Although Major League Baseball and the NBA had, over the years, made progress in this regard, the NFL's head coaches were almost exclusively white up until the mid-1990s.

Advancing the Ball chronicles the campaign of former Cleveland Browns offensive lineman John Wooten to right this wrong and undo decades of discriminatory head coach hiring practices--an initiative that finally bore fruit when he joined forces with attorneys Cyrus Mehri and Johnnie Cochran. Together with a few allies, the triumvirate galvanized the NFL's African American assistant coaches to stand together for equal opportunity and convinced the league to enact the "Rooney Rule," which stipulates that every team must interview at least one minority candidate when searching for a new head coach. In doing so, they spurred a movement that would substantially impact the NFL and, potentially, the nation.

Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America's most popular sport and added an extraordinary new chapter to the civil rights story.

"My personal journey of success would have been much more difficult if not for the sacrifices of many that blazed my trail. The Fritz Pollard Alliance created a highway for expanded opportunities for African Americans, which are chronicled in this fascinating and historic book."--Warren Moon, NFL Hall of Fame Quarterback

"An incredibly interesting and enlightening read. This book should be required reading for any level of sports enthusiast, as it explains so much about the complex intersection of sport and race. Without knowing this story, you simply cannot understand the evolution of sport over the past 50 years."--Woodie Dixon, Jr., General Counsel to the Pac-10 Conference and former General Counsel to the Kansas City Chiefs

"Advancing the Ball provides a hopeful message, with engaging discussion of how policies can be instituted to correct patterns of unfairness and injustice."--Michael McCann, Sports Illustrated Legal Analyst, and Director of the Vermont Law School Sports Law Institute

"This excellent book is a must for fans of football and other sports, as well as for those with a passion for racial justice. Professor Duru offers us a thoughtful and engaging perspective on the evolution of equal treatment in professional football."--Paul C. Weiler, Professor, Harvard Law School, and Creator of Harvard's Sports and the Law

* * *

Before the 46-year-old Arlington, Va. resident had time to remove his Carolina blue coat, a security guard approached and told Demery he couldn't sit in that section of John Paul Jones Arena wearing Tar Heels colors. Soon afterward, another Virginia staffer asked to see his ticket to verify that it was legitimate. And finally, associate athletic director Jason Bauman escorted Demery from his seat and relocated him to another seat 17 rows higher in the lower bowl.

"I couldn't believe it," Demery said. "I'm sitting there hoping to enjoy the game courtside and I thought it was going to work out great and in a matter of 15 minutes, it changed. I just was shaking my head thinking, 'How is this possible? How are they allowed to get away with this?'"

* * *

Michael McCann, director of the Sports Law Institute at Vermont Law School, said that Demery's contractual rights may have been breached if the ticket he purchased didn't stipulate that he could not sit in the seat unless he was a Virginia fan. McCann also said relocating Demery may have been a First Amendment violation since Virginia is a public school and has less authority to regulate speech than a private institution.

"A fan who wears the 'wrong' team's shirt should probably not be excluded from a particular seat that he has legally purchased," McCann wrote via e-mail. "Sure, schools can encourage fans of one team to sit in certain sections, but they probably can't sell a ticket and then revoke its conditions because the ticket-buyer happens to be a fan of the other team."

* * *

The middle man in the Browns' 10-day coaching search was Bob LaMonte, whose influence in Berea now stretches from the team's boardroom to the coach's office.

The seasoned NFL agent represents the Browns' executive team of President Mike Holmgren, General Manager Tom Heckert and Executive Vice President Bryan Wiedmeier. He also represents Browns coach Pat Shurmur, who will be introduced today.

How is it that an agent can sit on both sides of the table without a conflict of interest?

* * *

NFL spokesman Greg Aiello said the players union regulates agents, not the league. And, according to union rules, dual representation is not prohibited as long as an agent discloses the names of any coaches, general managers or other management types he or she represents.

* * *
"My expectation," said Scott Rosner, associate director of the Wharton Sports Business Initiative at the University of Pennsylvania, "is that it would be an arm's-length negotiation."

* * *

Sports lawyer Rick Karcher, who directs the Center for Law and Sports at the Florida Coastal School of Law, said agents would suggest such representation is an advantage because it provides valuable connections, allows for insight other agents wouldn't have and allows them to serve as a helpful mediator when two clients clash.

* * *

Michael McCann, director of the Sports Law Institute at the Vermont Law School, said the remedy is just that simple.

"The fix is easy, at least in theory," McCann said. "Get a new agent."

One small part of such understanding is monitoring the innings of young pitchers from one year to the next. More than a decade ago, drawing on the advice of pitching coach Rick Peterson, I developed a rule of thumb that pitchers 25 and younger should not increase their workload by more than 30 innings. It's the same theory as training for a marathon: you risk injury by jumping from a 10K to the marathon instead of incremental increases. I called it the Year After Effect because the wear and tear often was followed by regression or injury the next year.

* * *

In recent years a new term has come into the game to prevent injuries, not just treat them: prehabilitation. Governing the workload of young pitchers has become standard procedure. Shutting down healthy pitchers in September, for instance, is a common occurrence.

* * *

All season, the waters of college football have been muddied by stories of student-athletes breaking rules by trying to make money or receive benefits that, per NCAA rules, they are not eligible for due to their amateur status.

But as a 2009 ESPN.com story showed, a bona fide football star can be a multi-million dollar asset to his university. The University of Florida's football revenues totaled $132 million in Tim Tebow's sophomore and junior seasons combined. In exchange, the only monetary compensation the quarterback received was his scholarship worth $13,160 per year, and a minimal monthly stipend.

* * *

Patriot News: Is there any feasible way we can find a happy medium and compensate the student-athletes while not creating dissension?

Rapp: You could allow for a fairly modest stipend. Like what grad students make teaching introductory English in exchange for $20,000 a year. Then, if you're Terrelle, you have something in your pocket, and it reduces temptation. The real problem is that most universities couldn't afford to give their student-athletes $10-20,000. For most universities, it would mean the end of their programs.

McCann: How would other athletes be compensated? And how would Title IX work into it? If you're only paying the players from programs that make money — at most schools that is men's basketball and football — other players would say “I should be paid too” and the school would say, “You're not contributing enough to the market.” It would certainly complicate college sports, and I imagine some schools would have to cut programs to pay for this.

• The NBA requires that U.S. players be 19-years-old and one-year removed from high school.

• The WNBA requires that U.S. players be four-years removed from high school or at least 22-years old.

• The NFL requires that players be three-years removed from high school.

Ever since people have trod meadows and moors intent on striking hard white balls with bottom-weighted clubs, people have been suing one another for shots gone awry. Golf has evolved into the perfect litigation machine, beloved by lawyers, perhaps because so many are making a good living filing suits, defending suits and providing advice on injuries, course and product design, environmental damage, discrimination and almost anything that could conceivably find its way into a courtroom.

The entire story is available here.

“An extra benefit is any special arrangement by an institutional employee or a representative of the institution's athletic interests to provide a student-athlete...a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes...is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution's students...on a basis unrelated to athletics ability."

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* * *

Over the past week, new athletic directors at West Virginia and Maryland forced out incumbent coaches who, by most reasonable standards, had been relatively successful. Mountaineers coach Bill Stewart, 58, has won nine games in each of his first three seasons. Terrapins coach Ralph Friedgen, 63, has taken his team to seven bowl games in 10 years and was named the ACC's Coach of the Year this season.

* * *

In that respect, Maryland and West Virginia are merely following the national trend in coaching hires: Youth and energy trump age and experience. Pittsburgh recently replaced 58-year-old Dave Wannstedt, an NFL and college head coach for 17 seasons, with 46-year-old Michael Haywood, a head coach for two seasons at Miami (Ohio). Colorado axed Dan Hawkins, 50, who's been a head coach for 15 seasons, and hired Redskins tight ends coach Jon Embree, 45, a CU alum who'd never previously served as even an offensive coordinator.

New Florida coach Will Muschamp is a 39-year-old first time head coach. Indiana (Kevin Wilson) and Vanderbilt (Franklin) went with first-time head coaches, too. Franklin, 38, is 18 years younger than Robbie Caldwell, the man he replaced. In fact, all eight BCS-conference hires to date are younger than the coaches they're replacing.

Enter Ubisoft Entertainment, one of the world's largest video game companies. In November, the French company stepped into the octagon with its latest offering--Fighters Uncaged, which allows players to become the "ultimate fighting weapon" in a world of underground street fighting. Ubisoft now faces a lawsuit filed by UFC over the use of the words "ultimate fighting," . . .

The ChiSox probably hope the splashy signings overshadow some less-positive recent news about the franchise: the decision by federal prosecutors in the Windy City to charge former senior director of player personnel Dave Wilder and two scouts with fraud.

Wilder and scouts Jorge Oquendo Rivera and Victor Mateo are alleged to have taken kickbacks from young Latin American players in the team's minor league system. A 17-page indictment accuses the trio of illegally defrauding 23 prospects out of $400,000 between December 2004 and February 2008.

It was in the summer of 2008 — after the White Sox fired Wilder, Mateo, and another scout in the wake of an internal investigation into the team's Latin American operations — that reports first surfaced of possible fraud in the signing of Dominican players.

* * *

Assisting [Sheldon Zenner, the co-chair of Katten Muchin Rosenman's white-collar criminal and civil litigation practice] was Katten litigation associate Bryan Stroh, a former baseball player at Princeton. The two worked closely with White Sox executive vice president and Katten alum Howard Pizer, team general counsel John Corvino, and staff on the baseball side in arranging interviews at the team's home at U.S. Cellular Field.

"It seemed a lot easier to do those interviews here rather than [in the Dominican]," Zenner said. "To be frank, lawyers' time can be expensive, and that doesn't even include travel time and translation issues. One major challenge was getting them in an environment where they felt comfortable."

Given that most of those being interviewed were low-level minor league players — some of whom had been in the U.S. for only a short time — Zenner said that being questioned in a major league ballpark by many of the team's top brass left the young Dominican players terrified.

"A lot of these kids were scared stiff and had no idea why there were being called in," Zenner said. "It took a little while to assure them that there weren't being fired and had not done anything wrong, but that we needed them to be truthful with us. Like low-level folks in any organization, they were worried about the potential ramifications of implicating someone higher up in that organization."

Stroh added that many of the players had no idea that something was even wrong until they started talking with their colleagues elsewhere in the White Sox organization.

"They were just going about their business of playing baseball," he said. "It took awhile for some of them to realize that they weren't the only ones that didn't have all their money. Many of these guys were largely uneducated because they had spent most of their lives training to play baseball because that's the best chance to make money and provide for their families."

This defense draws on a line of antitrust precedent dating back to the Supreme Court's 1962 decision in Brown Shoe Co. v. United States, in which the Court famously stated "it is competition, not competitors, which the [Sherman] Act protects." Following Brown Shoe, courts have increasingly required antitrust plaintiffs to establish that a challenged restraint harm consumers, rather than simply hurt a competing firm in the larger competitive marketplace.

This consumer welfare argument is probably the BCS's strongest defense in response to a group boycott claim focusing on harm to the non-BCS Conferences. While the BCS's ultimate chances of success on this argument are uncertain, the defense is not as foolproof as the BCS would have people believe. Indeed, as I discuss in my forthcoming article "Antitrust & The Bowl Championship Series," there are several significant counter-arguments that can be asserted against the BCS on the consumer welfare issue.

As an initial matter, the Supreme Court has never considered whether a showing of harm to consumer welfare is necessary in a group boycott claim. While the Court could of course ultimately hold that consumer welfare must be implicated in group boycott cases, that outcome is not necessarily certain, given that a classic group boycott claim is - at its root - premised on harm to a competing firm.

More significantly, though, a plaintiff challenging the BCS under antitrust law can point to analogous case precedent to argue that the BCS does in fact harm consumers in a way that is cognizable under antitrust law. Specifically, in the 2004 case of Metropolitan Intercollegiate Basketball Ass'n v. National Collegiate Athletic Ass'n, 339 F.Supp.2d 545 (S.D.N.Y. 2004), the promoters of college basketball's National Invitational Tournament (NIT) sued the NCAA, alleging that an NCAA rule requiring that all teams selected for the NCAA's post-season college basketball tournament exclusively play in that tournament unfairly harmed the competing NIT, preventing the NIT from assembling the best possible field of teams for its own tournament. In response, the NCAA -- like the BCS -- argued that its regulation did not harm consumers, but instead at most only harmed a competitor to the NCAA, and therefore did not violate antitrust law. The Southern District of New York rejected this argument, finding that it could not distinguish harm to the competing NIT from harm to competition itself. Specifically, the court held that because the NCAA's rule prevented the NIT from offering consumers the most competitive basketball possible, consumer welfare had been sufficiently implicated to allow the NIT to proceed with its antitrust case.

A plaintiff challenging the BCS can rely on this precedent to argue that the BCS similarly implicates consumer welfare. For example, this year both Virginia Tech and UConn received automatic bids to BCS bowl games by virtue of winning the ACC and Big East, respectively. Those invitations came at the expense of higher-ranked teams left out of BCS bowl games, such as tenth-ranked Boise State, who was relegated to the MAACO Bowl Las Vegas. As a result, one could argue that football fans have been harmed by not being able to watch the most competitive BCS games possible, such as one featuring Boise State against ninth-ranked Michigan State, another highly regarded team left without a BCS bid. Similarly, a plaintiff could also argue that the BCS harms consumer welfare when it distributes a disproportionately lower share of revenue to participating non-BCS Conference schools, insofar as these financial discrepancies help foster competitive disparities throughout college athletics. In other words, because the six BCS Conferences receive twice as much revenue for their participation in a BCS bowl game as does a participating, non-BCS Conference, the BCS schools are able to use this revenue advantage to field stronger teams not only on the gridiron, but across a number of different sports. As a result, consumers are thus deprived of the most competitive college athletics events possible at the non-BCS Conference level.

Third, a plaintiff could also point to recent surveys showing that anywhere from 63 percent to 90 percent of college football fans have an unfavorable opinion of the BCS as further evidence that the BCS generally harms consumer welfare.

Finally, the consumer welfare defense likely would not protect the BCS from a potential price fixing claim, which could be alleged insofar as the BCS enables (i) formerly independent, competing entities (the participating conferences and bowl games) to collectively determine the amount of revenue to be distributed to BCS participants, and (ii) various BCS bowls to forgo competition by collectively selling their broadcast rights to television networks. In either case, harm to consumers could be established by pointing to the fact that both ticket prices and television fees rose significantly following the formation of the BCS, costs that have ultimately been shouldered by consumers. While some of these increases can undoubtedly be attributed to higher demand resulting from the BCS's creation of a national championship game, at least some portion is almost certainly the result of the elimination of competition between the formerly competing entities.

Therefore, contrary to the recent statements of the BCS's Executive Director, I do not believe that the consumer welfare defense would necessarily save the BCS from an antitrust suit. While the defense may ultimately enable the BCS to prevail in a group boycott case, there are strong arguments to the contrary available to a plaintiff challenging the system under such a theory. Even then, the defense likely would not offer the BCS protection against a possible price fixing claim. As a result, I believe that the BCS currently remains vulnerable to an antitrust attack.

Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.

I heard a WFAN caller (the infamous incarcerated bob) claim that two Jets players said that the Jets were angry that the Dolphins gunner had been going out of bounds during kickoffs, and that this formation was done to stop that. . . .

So, Jets strength coach Sal Alosi and [practice squad players] were standing the zone marked for “Coaches and substitution players only” and they were lined up as close to the edge – both to the playing field and edge of the bench area zone as humanly possible.

Definitely a planned lineup, no? Who had them do this?

I don't think the plan was for Alosi to stick his knee out and knock the player down, but he was put into that position. By whom?

After the game, Rex Ryan professed to be unaware of the situation until the team's director of media operations informed him.

The BCS also arguably enhances competition through its use of empirically-influenced rankings. Each team's BCS ranking is a composite of three equally-weighted components -- the USA Today Coaches Poll, Harris Interactive College Football Poll (which comprises 114 voters, including former coaches, players, and journalists) and an average of six computer-based rankings that incorporate largely objective measurements, such as won-loss record and strength of schedule. To be sure, this arrangement is complex and partially opaque -- private companies that run each computer rating can shield their formulas from public scrutiny. Nonetheless, the use of factual criteria to complement the subjective impressions of coaches and journalists can be viewed as a positive: they are designed to improve accuracy and fairness.

* * *

The best antitrust argument against the BCS is its blatant limitation of automatic bowl bids to the six BCS-affiliated conferences (and Notre Dame, which is not a member of any conference). Champions from the five non-affiliated conferences can only earn bids in very limited conditions and lack guarantees of bowl appearances and accompanying revenue and publicity. The BCS, however, could respond that this arrangement is designed to most efficiently maximize overall fan interest, since the BCS-affiliated conferences tend to be larger and with wider fan bases.

The team has done research on the various crude and offensive James T-shirts in circulation locally, and officials will be stationed at entrances to make sure no fans enter with such shirts or signs that disrespect James or his family members. They'll also be in the stands, authorized to take away inappropriate apparel. Fans who have such shirts will be required to remove them and then will be given a Cavaliers-branded T-shirt to wear instead. All inappropriate signs also will be confiscated and officials will be on the lookout throughout the game for inebriated fans or fans who are preparing to throw things onto the court.

"We don't want to create a police state," said Tad Carper, the Cavaliers' senior vice president of communications. "We've always had a real energetic, super-charged home crowd and we want to encourage that for every game, including Dec. 2. We want people to enjoy themselves and express themselves, but we don't want fans to cross the boundaries of decency. We're not going to allow profanity and things like that. We'll have no tolerance for anyone trying to cross those boundaries."

This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.

In another chapter in MLB's simmering baseball kickback scandal, a Federal grand jury has indicted a former Chicago White Sox executive and two team scouts on charges that they took kickbacks totaling approximately $400,000 from signing bonuses and contract buyouts paid to secure 23 prospective players between December 2004 and February 2008. A seven-count indictment returned at the United States District Court in Chicago alleges that the White Sox baseball team was defrauded of money, as well as the honest services of the Defendants, who allegedly concealed the kickbacks from the team and its more senior officials.

This scandal first became public after White Sox executive David Wilder was discovered returning from the Dominican Republic in March 2008 with $40,000 in cash.

The facts, according to the indictment:

David Wilder was the White Sox farm system director from 2003 to 2006 and Director of Player Personnel until May 2008. He was responsible for overseeing the Sox scouts in Latin America, including Co-Defendants Jorge Oquendo Rivera and Victor Mateo. Rivera served as Latin American Scout and was directly responsible for overseeing Mateo.

The White Sox authorized scouts to conduct preliminary negotiations, and Wilder was authorized to permit a player's signing if the payment was under $100,000. If it was more, he obtained authorization from the White Sox GM Kenny Williams. After the signings, MLB conducted background checks, a written contract was sent, and checks were drawn from the White Sox's bank in Chicago. Checks were paid to the player (if Dominican) or to a Mexican team if the signing involved a contract purchase.

The Defendants' written contracts with the team required them to serve “diligently and faithfully” and to provide services with “diligence and fidelity.” The White Sox relied on Defendants to recommend/approve recommendation of signings that were (i) commensurate with the player's skill level; (ii) in an amount that was no greater than necessary to induce a player to sign with the team or to induce a Mexican team to release the player; and (iii) not artificially inflated by inclusion of kickback payments.

The Defendants allegedly misrepresented the amount necessary to sign certain players and omitted material information about the payments which caused the White Sox to pay artificially inflated signing bonuses and artificially inflated prices for players' contract rights. Rivera and Mateo allegedly scouted players that they knew they could secure kickbacks from, and Rivera sought players already affiliated with Mexican teams. Rivera and Mateo directly and indirectly informed Wilder as to whether kickbacks could be obtained.

This indictment could be part of a much more expansive scheme of fraud with regard to MLB scouts in Latin America. Statistics provided by MLB show that signing bonuses of Latino players have gone up drastically in the last decade. The average signing bonus was approximately $29,000 in 2004, but had risen over $100,000 by 2008. ESPN's Outside the Lines conducted a report in September of 2008 that described a “lawlessness” to baseball in the Dominican Republic. MLB claimed in the report that it was unaware of the problem of skimming.

The “White Sox Three” may be the first to be charged, but there are others, even bigger fish, that could face similar charges.

Jim Bowden, erstwhile GM of the Washington Nationals, stepped down in March 2009 amidst baseball's investigation of his alleged skimming activity going as far back as his days as Reds GM in 1994. Bowden has denied any involvement. In August of 2008, the Yankees fired Carlos Rios, their director of Latin American scouting, and Ramon Valdivia, their Dominican Republic scouting director, for their alleged involvement in a kickback scheme. This came after the Boston Red Sox fired one of their own Dominican scouts, Pablo Lantigua, as a result of his alleged acceptance of a gift from a talent hunter, or a “buscone” who represented a Sox prospect that the team had signed. As this article details, the problem is not just a matter of MLB supervision, but also the fact that the system of buscones in the Dominican in deeply ingrained and is tied to the country's crushing poverty.

Worth noting is the fact that the White Sox scandal was the first to break back in May 2008. It will be interesting to see whether this initial indictment is a prelude to further charges in Boston, New York or D.C.

At a time when MLB is still dealing with the lingering effects of the steroid era, this scandal is certainly unwelcome, but far from reaching a crisis level. The MLB-initiated investigation, carried out by the FBI and culminating in this week's charges, demonstrates the League's commitment to rooting out this problem. While the situation in the Dominican likely won't change any time soon, the League and team officials can keep this type of scandal from escalating by more vigilantly monitoring how their scouts interact with players and player representatives.

The scandal has further elicited discussion about subjecting international players to MLB's June draft for U.S. and Canadian players. Under the current system, the only restriction on a team's acquisition of international players is that they be signed after their seventeenth birthday. But as Rick Karcher point out in this space a short while back, implementation of a draft would have to be collectively bargained and even then, the effect it could have on the entire player acquisition process is unclear.

Hat tip to law clerks, Luke LeSaffre and Brian Konkel, for their excellent work on this piece.

Update 11/20/10: White Sox scout, Rivera, entered a not guilty plea at his arraignment yesterday. His Co-Defendants, Wilder and Mateo, will be arraigned next month.

Lamar Odom has sued the Internal Revenue Service, which said he couldn't take tax deductions for $12,000 in sports fines and another $178,000 spent getting himself in shape.

The 6-foot-10 Odom . . . filed suit in U.S. Tax Court to fight an IRS bill for $87,000 over his taxes for 2007. That includes $9,000 in interest. However, unlike many IRS efforts to collect money, the bill did not include a claim for accuracy-related penalties. This might mean the agency sees his case somewhat less harshly than others it duns.

A college dropout, Odom is representing himself without a lawyer. In his personally signed pleading, filed at the court's Washington, D.C. office on October 25, Odom disputed a bill that the IRS sent him in August. “The taxpayer claimed $12,000 of employee business expenses for fines that were assessed by the National Basketball Association,” he declared, writing in the third person. “These fines are commonly assessed on professional athletes and are work related. Therefore the fines incurred are ordinary and necessary employee business expense.” The petition, which listed his address as an agent's office in Los Angeles, offered no details about the nature of transgressions leading to the fines.

Federal law generally prohibits tax deductions for financial sanctions resulting from criminal cases and matters like traffic violations. But Odom wrote, “The fines imposed by the team and the NBA are not imposed for the violation of any government law and are therefore not specifically excluded.”

To read the rest, click here. Thanks to my colleague Stephanie Willbanks, Vermont Law School's tax guru, for the heads up on this story.