Blog Archive

Connecting Minimum Age Restrictions in NBA/NFL with Jim Tressel and Ohio State mess

Message posted on : 2011-05-31 - 17:00:00

Sports Illustrated's Zach Lowe makes the connection in this piece, in which he interviews Alan Milstein, a contributor to this blog who litigated on behalf of former Ohio State running back Maurice Clarett in his antitrust challenge to the NFL's age limit in 2004 [I provided Alan with legal analysis during the litigation].

Here are a couple of excerpts of Zach's piece:
* * *

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.”

* * *
To read the rest, click here.

Posted By : Michael McCann

Down Go the Dodgers: the Stow Suit Deepens the Debacle

Message posted on : 2011-05-31 - 00:00:00


The legal web cast over the storied Los Angeles Dodgers franchise just keeps getting more tangled. The family of injured San Francisco Giants fan, Bryan Stow, filed a nine-count Complaint against the Dodgers, its various holdings, and owner Frank McCourt. Stow was severely beaten in the parking lot following the opening day game between the Dodgers and Giants and remains in a coma in a San Francisco hospital. The much publicized incident has occasioned harsh criticisms on Dodgers management, but has also inspired generous charitable contributions from many parties, including much maligned former Giant, Barry Bonds. The Complaint includes various counts ranging from negligence, infliction of emotional distress, loss of consortium, and assault and battery. The full Complaint can be read here.

The allegations paint a picture of gross mismanagement of funds and resources attributable to the McCourts. The public picture already painted by the much publicized divorce proceedings between McCourt and his wife, Jamie, and their insistence on maintaining their posh lifestyle despite financial misfortune would seem to support the allegations. The complaint focuses on a myriad of inadequate security measures in place as a result of McCourt's lapses in judgment and spending. Dodger stadium was built in 1962, and the Stows partially attribute the incident to inadequate and antiquated parking lot lighting where the beating occurred. A further contributing factor cited is the “half-off” alcohol promotion for day games at Dodgers Stadium. The most obvious danger, however, is the vastly insufficient quantity and quality of security personnel. McCourt subsequently acknowledged the shortcomings in security (including a drop in the number of uniformed police utilized and no chief of security) and took remedial measures, but that is of little consequence to Stow and his family.

Following, but presumably unrelated to, this heinous incident, Major League Baseball assumed control of the Dodgers. By all counts, MLB was compelled to this move by an apparent lack of financial management. The Commissioner can assume control of teams under his broad power to act in the best interest of baseball and clearly it is his prerogative to prevent further embarrassment to a once proud franchise and ensure the safety of patrons. Mike discussed the full legal ramifications of the takeover in his Sports Illustrated column last month.

Generally, spectators assume the risks associated with attending a live sporting event (e.g. foul balls), but that does not preclude an owner's liability when certain actions or omissions exceed the spectator's reasonable expectations, like assault and battery. Fortunately for the Dodgers Defendants, the general rule is that premises owners are not liable in tort for the intervening criminal acts of third-parties. However, a question for consideration that may allow the Plaintiffs here to survive dispositive motions are what level of security was provided by the Dodgers to patrons in the parking lots and at the taxi stands prior to the incident, as the same may show that the Dodgers assumed a level of control that removed the organization from claiming shelter from liability for the intervening criminal acts of third-parties. Remember that actions taken by the Dodgers, under MLB control and otherwise, since the incident would likely not be allowed as evidence in a liability action against the Dodgers as the same would be regarded as a post-remedial measure.

It will be interesting to see what, if any, say MLB has with regard to the named Dodgers Defendants as the same are now under some level of control by the League; a control that McCourt has been fighting against. Certainly the filing of this lawsuit is not helping the League's efforts to reverse the downward spiral the Dodgers organization finds itself in.

Posted By : Tim Epstein

Changing rules

Message posted on : 2011-05-30 - 10:33:00

MLB, team officials, and the media are talking about the rules governing collisions at home plate, following the pretty gruesome injury Giants Catcher Buster Posey suffered in this collision last week.




ESPN's Jayson Stark inadvertently touched on two significant jurisprudential issues and how sports reveals them. First, Stark decries that it took this injury to get people talking about changing these rules:
It always takes something like this -- something like the horrifying sight of Buster Posey lying there, face in the dirt, writhing in pain -- to get folks talking. Why is that, anyway?
Now, after the fact, people are asking what we can do to protect both catchers and baserunners from these scary two-vehicle pileups at home plate. NOW, in retrospect, people wonder if there's a way to tweak the rulebook in the name of safety. So here's a question: How come, in baseball, we never seem to have conversations about what we can do to prevent these moments BEFORE they happen? Why is it always after the fact?
Why? Because law is almost always reactive. Legislators (and, as I have argued before, the Commissioner and MLB are, at bottom, legislative actors) make legal rules in response to a problem, usually after the problem has been demonstrated by one fairly horrific or problematic example. But that is in the basic nature of legislation. We usually do not know we need to change a legal rule to prevent X until X occurs and we see the full consequences of X. Or at least to see the full consequences of X to know that the cost of allowing X to continue outweighs whatever benefits from it.

Moreover, law responds to individual stories, which are what overcomes the stasis needed to change rules, even in a relatively simple system such as a sports league. Collisions at home were not considered a problem in need of a solution; the occasional high-profile injury (Ray Fosse, anyone?), while known and unfortunate, did not outweigh these collisions as a long-standing part of the game. Now, everyone is rushing to act because this one set of facts put the issue on the legislative table.



Second, Stark points out that: 1) No one can figure out what the best rule should look like and 2) Catchers were the group most opposed to changing the rules. This demonstrates the problem of legislating off of single, rare, especially horrific stories or sets of facts. Rulemakers tend to ignore the uniqueness of the one story or its outlier nature and rush to change the rule to make sure this unique event does not happen again. But in doing so, they risk eliminating the positive aspects of the old rule and creating a new regime that, while eliminating the targeted problem, creates a host of new ones. In a rush to act, they also risk misweighing the costs/benefits of the old rule, ignoring that the unique story is "part of the game" and outweighed by its benefits. This is why it is so telling that the players most affected by the situation oppose the change--they understand that injuries happen and accept that as the risk. The question is how much rulemakers will consider that "expertise." On the other hand, I am surprised no one has mentioned concussions and head injuries. Although there is no evidence of a problem based on diagnoses, it is logical that some head injuries are involved with the sorts of collisions involved. If so, it gives legislators something to act on beyond this one particularly gruesome case.

Posted By : Howard Wasserman

Good piece by National Law Journal on 8th Circuit and NFL Lockout

Message posted on : 2011-05-27 - 19:22:00

Marcia Coyle interviews Robert Boland, Michael LeRoy, and me for this story, which is a good read. The online version of the story is available at this link.
Posted By : Michael McCann

Upcoming Sports Law Seminar in Minneapolis

Message posted on : 2011-05-27 - 07:20:00

Steven Silton, a partner at Hinshaw & Culbertson in Minneapolis, has let me know of what should be an excellent sports law seminar on Friday, June 17. The event is hosted by Hinshaw & Culbertson and Brewer Sports International. Drew and Jason Rosenhaus will be speaking, along a number of other prominent persons in the industry - click on the image to the left for more info.

While the event is invite only, Sports Law Blog readers will be given preference if they are interested in attending.

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

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

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

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

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


Truly,


Steven H. Silton Hinshaw & Culbertson LLP Jack Brewer Brewer Sports International

Posted By : Michael McCann

European Soccer Adopts Salary Cap without Collective Bargaining: Antitrust Implications

Message posted on : 2011-05-26 - 14:34:00

Over on The Conglomerate, Wharton professor David Zaring writes about the antitrust implications of European Soccer adopting a salary cap (Part 1, Part 2). As there is no players association with which to bargain, the cap has been unilaterally imposed.

I talk to David about the antitrust implications and to what extent extraterritorial reach of federal antitrust law, along with EC Treaty antitrust provisions, could pose hurdles.

Posted By : Michael McCann

Sports and politics, mixed

Message posted on : 2011-05-26 - 09:01:00

Let no one say sports and politics do not mix all the time. In DC's Congressional Softball League, the team from the Office of National Drug Control Policy (the "Czardinals") pulled out of a scheduled game with a team of people from various drug-policy reform groups (the "Capitol Hemp One Hitters") (H/T: Deadspin). According to a press release from the One Hitters, this is the sixth time that the Czardinals have backed out of a game with them--reflecting on the softball field that office's attitude "on the national stage" towards those who even propose or want to discuss legalization as a policy option.
Posted By : Howard Wasserman

"South Park" nails the NCAA

Message posted on : 2011-05-26 - 08:47:00

Last night, South Park aimed its satire at the NCAA, in an episode titled Crack Baby Athletic Association. Cartman videos sessions of crack-addicted newborns playing with a ball filled with crack and posts them on the internet, where it become a viral sensation. The kids are making tons of money and even begin negotiating with EA Sports to make a crack-baby basketball video game. But Kyle feels guilty that the babies are not receiving anything from the arrangement; in a series of one-sided conversations with Stan, Kyle throws out every justification/rationalization for why the babies still benefit and why the system is fair and works for them, even if they do not get the money they are generating. There also is a scene of Cartman doing a home visit with a pregnant addict, "signing" her soon-to-be-born son to play for St. Mary's Hospital and explaining to the mother that they will not receive money because "benefits to players would be detrementalizing to their well-being" (although he does offer the mother crack).
Posted By : Howard Wasserman

Sports Law Analytics

Message posted on : 2011-05-25 - 14:00:00

As a prequel to a longer/technical article that is currently under review at a journal, Tassos Kaburakis and I recently published an essay in Analytics entitled "Sports Law Analytics." Analytics is a quasi-academic publication published by the Institute for Operations Research and the Management Sciences ("INFORMS"). There is an accompanying INFORMS podcast too. Our essay outlines the parameters for expert witness testimony and alludes to some of the quantitative methods often used in sports-related disputes. We specifically highlight the potential role of analytics in American Needle v. NFL, et al and the Keller/O'Bannon litigation. Our sequel includes a empirically-driven discussion of the issues highlighted by Mike McCann in a recent Chronicle article by Brad Wolverton. With the sports industry increasingly turning to analytics for insight, we have found the application of statistical tools to real-world sports law issues (e.g. the efficacy of age eligibility rules) to be a fascinating research line.
Posted By : Ryan M. Rodenberg

New Sports Illustrated Column: NBA Players' Union files Unfair Labor Practices Charge

Message posted on : 2011-05-24 - 22:28:00

I have a new SI column on the NBA players' union makes the first move in a potentially protracted labor dispute with NBA. Here's an excerpt:

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

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

To read the rest, click here.

Posted By : Michael McCann

On league integrity and the nature of sports

Message posted on : 2011-05-19 - 13:18:00

At halftime of Tuesday night's Western Conference Final, the NBA held the draft lottery, in which Cleveland won the first pick and Minnesota won the second. Cleveland was represented on stage by Nick Gilbert, the 14-year-old son of owner Dan Gilbert; Nick suffers from Neurofibromatosis, a nerve disorder that causes tumors to grow in his body anywhere and anytime. Afterwards, Minnesota GM David Kahn said the following:
This league has a habit, and I am just going to say habit, of producing some pretty incredible story lines. Last year it was Abe Pollin's widow and this year it was a 14-year-old boy and the only thing we have in common is we have both been bar mitzvahed. We were done. I told Kevin: 'We're toast.' This is not happening for us and I was right.
Kaaahhnn! may or may not have been joking.

On PTI Wednesday, Tony Kornheiser said the following (the whole discussion starts around the 3:00 mark): "I have no idea if the lottery is fixed. . . . But if it's fixed, I'm 100 % for that. This is a closed corporation. If they want to go around and improve certain teams in certain way, I'm OK with that." Kornheiser viewed this as, essentially, a make-up call for Cleveland after "The Decision." Similarly, it was OK to reward the Wizards last year after the death of long-serving owner Abe Pollin. And, by implication, it was OK to reward the Knicks with Patrick Ewing in 1985, which lifted one of the league's signature franchises.

That cannot be right. The league sells itself as being engaged in open competition, results determined by luck (the lottery) or a combination of skill and luck (games and just about everything else). That, in truth, is the essence of sports and sports leagues. The league cannot surreptitiously control or manipulate that competition in any way. To do so flies in the face of what the league is promoting and what professional sport is supposed to be about. Plus, the logic of the argument cannot be limited to the lottery, but must extend to play on the court. Can the league now directly dictate game and playoff series outcomes (as opposed to indirectly, which the NBA already does, by controlling officiating assignments and giving officials "guidance" of how to call games)?

The notion of games and players being played completely above board is essential to the idea of sport and to getting fans to take sports seriously. And it was not always so. Prior to 1920, baseball was perceived as a step up from professional wrestling. The big shock in the Black Sox Scandal was not that the players had thrown the Series, but that it was the first time anyone had been caught. There were suspicions and rumors of a fix as early as the 1903 Series. And the NBA faced a genuine crisis following the officiating debacle that was the 2006 Finals, when fans raised genuine concerns about league manipulation.

I agree with Kornheiser in one respect--the NBA could dump the lottery altogether and establish a draft order based on arbitrary favoritism or a desire to help one team or another (the Chicago Bulls were assigned the first pick in the ABA Dispersal Draft in 1976 so they could draft Artis Gilmore). Just as the league could start pre-determining winners. But it has to be transparent and above board that this is how things are being done and this is why. And it no longer can sell itself as sport.

Posted By : Howard Wasserman

The NCAA Responds to the DOJ's Letter Regarding the BCS

Message posted on : 2011-05-19 - 10:00:00

The NCAA formally responded on Wednesday to the letter it received earlier this month from the U.S. Department of Justice regarding the legality of the Bowl Championship Series. In the response, NCAA President Mark Emmert largely deferred to the BCS to answer the Justice Department's inquiry, stating that "because the BCS system does not fall under the purview of the NCAA, it is not appropriate for me to provide views on the system."

The NCAA's letter is available here. For more on the legality of the BCS, see Sports Law Blog's prior coverage.

Posted By : Nathaniel Grow

37th Annual Sports Lawyers Association Conference in DC

Message posted on : 2011-05-18 - 09:00:00

This week the Sports Lawyers Association will hold their 37th Annual Conference in Washington DC. This annual event is the premier gathering of sports lawyers from around the country and this year's conference once again brings some of the industry's leading practitioners, academy scholars, and students together. Scheduled topics for this conference include the following:

° The General Counsels' Forum—including general counsels from all four major leagues
° The Executive Directors' Forum—including the heads of each leagues players association.
° Media, Publicity, Fantasy Sports & Privacy Rights for Athletes
° Legal Impact of Agent Interference in Intercollegiate Athletics
° The Current State & Legality of the College BCS System
° Ethics for Sports Lawyers
° Latest Developments in Professional Sports Collective Bargaining
° Structuring & Negotiating Complex Transactions in Professional Sports
° Legal Ramifications of Head Trauma in Sports
° Arbitration & Mediation Update in Professional Sports

For more details on this tremendous event you can access the conference brochure here. If you can't attend this week but want to learn more about this association, the SLA website can be found here.

Posted By : Warren K. Zola

Roger Clemens at SCOTUS

Message posted on : 2011-05-17 - 18:53:00

Roger Clemens is still hanging around the Supreme Court. Clemens sought cert from the Fifth Circuit decision holding that Texas courts lacked personal jurisdiction over Brian McNamee in Clemens' defamation actions arising from McNamee's various statements to the Mitchell Commission and the media about Clemens' alleged steroid and HGH use. The case was listed for consideration at last Friday's conference, but the Court took no action. Speculation is that the Court is waiting to act on the petition until it decides two pending personal-jurisdiction cases.

I used the Fifth Circuit decision in my Civ Pro class; it is a pretty effective teaching case, if only for the somewhat stunted view that the majority took.

Posted By : Howard Wasserman

New Sports Illustrated Column: Burning Questions from Eighth Circuit's Ruling Tonight in Favor of NFL

Message posted on : 2011-05-16 - 23:52:00

A three-judge panel on the U.S. Court of Appeals for the Eighth Circuit has extended its stay of Judge Susan Nelson's order to enjoin the NFL lockout. The stay will continue into June, when the panel will decide the matter on the merits. I have a new column for SI on the ruling and what it means. Here's an excerpt:

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

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

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

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

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

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

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

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

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

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

Posted By : Michael McCann

New Sports Law Institute at Vermont Law School

Message posted on : 2011-05-16 - 09:46:00

Brian Porto and I are excited to announce the creation of the Sports Law Institute at Vermont Law School. It's an exciting venture that will focus on the intersection between sports, law and business and on getting students jobs and internships in the industry.

The Institute's website can be seen at this link. Here is the news release:

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


Photo of Professor Michael McCannSOUTH ROYALTON, VT -- Vermont Law School has established a Sports Law Institute (SLI) to prepare students for the growing opportunities at the intersection of sports, law and business.

The SLI is headed by Professor Michael McCann, one of the nation's foremost experts on sports law. He is a legal analyst for Sports Illustrated and editor-in-chief and publisher of the award-winning Sports Law Blog. The SLI's deputy director is Associate Professor Brian Porto, who has written about legal issues in sports for more than two decades.

The SLI's launching further broadens the curriculum and experiential learning opportunities at VLS, whose environmental law, international law, dispute resolution and other public-service oriented programs are nationally recognized for excellence.

The SLI serves as an educational, research and professional vehicle for exploring connections between law and sports. The institute engages in original research, promotes experiential learning and employment opportunities for VLS students and alumni and connects the VLS community with academic and professional sports law activities. The SLI also provides cutting-edge commentary on some of the biggest controversies in sports law.
photo Brian Porto
"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."

More information is available at: www.vermontlaw.edu/sportslaw

CONTACT: John Cramer, Associate Director of Media Relations Office: 802.831.1106, cell: 540.798.7099, jcramer@vermontlaw.edu

Posted By : Michael McCann

Slotting for MLB Draft?

Message posted on : 2011-05-14 - 13:58:00

Good piece by Jeff Passan on slotting for the MLB draft being a divisive issue for a new MLB CBA. We've discussed slotting for the MLB draft a number of times on the blog.
Posted By : Michael McCann

First Amendment and the Bird

Message posted on : 2011-05-12 - 11:37:00

Yesterday, battery charges were dropped against a Kansas City Chiefs fan who in 2009 flipped off the surrounding fans at San Diego's Qualcomm Stadium then got into a scuffle with security who intervened. The trial court ruled that the fan, Jason Ensign, was exercising his free speech rights in flipping the bird, thus giving him the right to defend himself against the security guards who tackled him.

Deadspin is having some fun with this, but this seems like precisely the right result. Note, however, that it does not necessarily speak to the full question of fan speech at stadiums, but only of whether a fan can be arrested and charged criminally for speech at a stadium. It is not clear the result if, for example, security simply had removed Ensign from the stadium. And it does not speak to the continued validity of the league's fan-conduct policies (although I long have argued that most are constitutionally suspect).

Posted By : Howard Wasserman

Bartolo Colon's Stem Cell Surgery: Sports Medicine or Cheating?

Message posted on : 2011-05-12 - 09:23:00

37-year-old Bartolo Colon has been an excellent surprise this season for the Yankees. Signed to a minor league contract in the off-season, Colon, who struggled in recent seasons with inconsistency and injuries, is 2-1 with a 3.86 ERA. His strikeouts per 9 innings are up considerably from the previous few seasons - he's striking out a batter per inning, something he hasn't done in years. Why are his Ks up? One reason is that he's throwing the ball 95 miles per hour again. And why is that? Here's one strong explanation:

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

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

HGH is banned by Major League Baseball.

* * *


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

"This is the future of sports medicine, in particular," he said. "Here it is that I got a guy back playing baseball and throwing pitches at 95 miles an hour."
* * *
Let's assume that Colon did not receive HGH. Is the stem cell surgery itself a source of concern?

There is no question that stem cell surgery has done wonders for a lot of people with serious injuries or disabilities and holds great promise for medicine. And like the innovation of Tommy John Surgery 35 years ago, stem cell surgery might allow pitchers and eventually batters to continue careers that would otherwise be shut down due to injuries, wear and tear or old age. Maybe we'll see more guys playing at a high level into their late 30s and even 40s. More Julio Francos wouldn't be a bad thing. Fans would get to see their favorite players play longer. And players, knowing that they could have 15 to 20 year careers, would likely take longer-term perspectives in how they view issues in collective bargaining.

Of course, steroids can also do wonders for people with various ailments. The same is true of HGH, which helps people recover faster from injuries. Steroids/HGH can also prolong big league careers that would have otherwise ended. But that hasn't stopped Baseball from viewing them as means of cheating.

Does the authoritative moniker "surgery" for stem cell surgery make it more acceptable than injecting someone with a steroid? Or are we okay with stem cell surgery because it takes cells from one part of the body and merely relocates them to another part (as opposed to a steroid which uses as an external substance to change the body chemistry)? Are the lines between medicine and cheating really clear?

For a few related posts, see Bryce Brentz and Teams Requesting that Players Use Medical Devices for Abnormally Good Health (from July 20, 2010), Alan Milstein's Clip, Clip, Baby! (from May 30, 2010), Howard Wasserman's Why is Steroids Use Considered Cheating (Oct. 10, 2006) and Greg Skidmore's Performance-Enhancing Surgery and Sports (April 21, 2005).

Posted By : Michael McCann

Replay and the the Law

Message posted on : 2011-05-11 - 20:47:00

Mitchell Berman (Texas) has written the piece I wish I could have: Replay (forthcoming in California Law Review). I read an early draft of the paper and it does a terrific job of applying legal theory to the seemingly trivial issue of replay in football and the standard of review, as well as drawing lessons from replay to apply to the legal system.

Here is the abstract:

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

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

Posted By : Howard Wasserman

Midweek Sports Law Links

Message posted on : 2011-05-11 - 12:00:00

* Great interview by Talkadelphia with Temple law professor Jeremi Duru on his excellent new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (with forward by Tony Dungy).

* Possible misstep by Major League Baseball in its taking over of the Dodgers from Frank and Jamie McCourt (the two are embroiled in a nasty divorce): According to attorneys for Frank McCourt, one of the persons assigned to run the Dodgers did not disclose that he used to work for Jamie McCourt until after reviewing confidential financial information about the team. If that's true, expect this to emerge as a key issue should MLB try to sell the Dodgers without Frank McCourt's approval.

* The federal government, apparently not deterred by the disappointing result in the Barry Bonds trial (a conviction on just one count - obstruction of justice - which was the least important count), is stepping up its investigation of Lance Armstrong and his possible use and sale of illegal performance-enhancers. As I explained in an SI column, Armstrong, if charged, could face a wide range of charges, including fraud and racketeering. His case, in other words, would be structured differently than those against Bonds and Roger Clemens, both of whom have faced prosecutions for knowingly lying under oath.

* Sam Amick with a good update on the forthcoming NBA labor crisis - long-story short: the two sides are talking quite a bit, but they are nowhere near an agreement.

* Jon Wertheim and Tobias Moskowitz, authors of Scorecasting, have a timely feature on SI.com on NBA referees missing many calls. Please also check out Ryan Rodenberg's related study.

* Central Michigan University professor Adam Epstein has posted his new article, An Exploration of Interesting Clauses in Sports, on SSRN.

* Brian Baxter of American Lawyer has a great sports law column called The Score. Check it out - tons of great info and insight.

* Sports attorney Jim Juliano has a good sports law newsletter called Legally Speaking.

* Mostly not sports law, but if you're a member or prospective member of the Massachusetts Bar, I strongly recommend reading Mass Lawyers Weekly, The Docket blog. Really good stuff there.

Posted By : Michael McCann

An Antitrust Economist's Take on the Potential BCS Litigation

Message posted on : 2011-05-10 - 22:00:00

Andy Schwartz, one of the drafters of the letter recently submitted to the U.S. Department of Justice by 21 law professors and economists, has posted an interesting commentary on ESPN.com regarding the possibility of an antitrust lawsuit against the Bowl Championship Series. His article is available here.

Posted By : Nathaniel Grow

Kansas State University reaches settlement with former football coach Ron Prince

Message posted on : 2011-05-09 - 23:57:00

It made for an interesting fact-pattern: 1) the athletic director signs the coach to a lucrative contract (or "memorandum of understanding") that contains a $3.2 million buyout; 2) the athletic director quits; and 3) the school fires the coach and says it won't pay him the buyout because, in its view, the athletic director did not have the authority to sign the coach (even though the relevant by-laws suggested he did).

Now the dispute has settled in a way that clearly favors the coach. Here's more:

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

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

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

* * *
“I think it's a favorable outcome for Prince,” said Michael McCann, a Vermont law professor who also works as a legal analyst for Sports Illustrated. “For the school, there is a benefit to having closure to litigation. I don't know what the value of that is, because it's hard to quantify, but this lawsuit has attracted a lot of publicity that the school doesn't want.

“It will provide closure, whereas if it goes through litigation, regardless of who wins and loses, you still have the possibility of appeals and public statements. You can certainly see why the school wants to settle it and have some closure even if it means paying Prince a substantial amount of money.”

McCann said the arguments made during a hearing for summary judgment last fall in Riley County District Court appeared to give Prince the advantage.

“It seemed that the athletic director either had authority (to negotiate a coaching contract) or one could presume he had authority, and in either case Prince would likely win,” McCann said.

“I think Prince had the stronger legal argument heading into the case, but there is still a benefit to Prince for settling. It ends all risk of losing.”
* * *
To read the rest, click here.

Posted By : Michael McCann

New Sports Illustrated on whether Bud Selig can punish players for alcohol & DUI related issues

Message posted on : 2011-05-06 - 19:11:00

I speak with Maggie Gray of Sports Illustrated Video to discuss whether Baseball Commissioner Bud Selig can sanction players for alcohol/DUI related offenses.

To summarize and elaborate on my video remarks:

1) GENERAL COMPARISON WITH STEROIDS
Driving under the influence, as a form of human conduct, is much worse than using, buying or even selling illegal steroids or other illegal performance-enhancers. If you drive drunk, you directly can kill or maim others, along with directly cause substantial property damage; if you use steroids, in the vast majority of cases you can only directly hurt yourself (if in fact steroids are really harmful, a point that has drawn debate).

Now, some have written about "roid rage" and people on steroids acting violently, and families/employers of those who commit DUI or use steroids are indirectly impacted by the abusers' conduct.

But I think it's pretty clear that driving under the influence is way worse than using steroids.

2) BASEBALL COMPARISON WITH STEROIDS
But when viewed purely from the lens of baseball, are steroids worse than DUI? Steroids are about cheating, DUIs are about off-field conduct. There's some merit to that. But that logic hasn't stopped the NFL, armed with its Personal Conduct Policy, from strictly regulating off-field conduct on grounds that certain misbehavior harms the league image.

3) DO NUMBERS ACTUALLY INDICATE A PROBLEM?
While 6 players committing DUIs in the first five weeks of the season is alarming in some media-noteworthy way, keep in mind that a) the 6 DUIs are not connected to each other and occurred in different circumstances; and b) at any given time, there are 750 players on the 30 MLB rosters - 6 out 750 is less than 1%. Is there really an epidemic of MLB players committing DUIs? Could the level of misconduct be the same as previous years, but only this time a few more players than normal were caught for an offense that culprits often get away with?

4) THEORY AND BEST INTERESTS OF THE GAME CLAUSE
In theory, Bud Selig invoke his Best Interests of the Game authority to sanction players for the DUIs. The DUIs have clearly embarrassed the game and the collectively-bargained Joint Drug Prevention and Treatment does not mention alcohol, an omission which he could interpret to mean he is not limited by the Policy.

5) REALITY AND COLLECTIVE BARGAINING
In reality there are at least 3 reasons why Selig will wait on sanctioning until there is collectively bargained language:

i) The Players Association would greatly resent him acting unilaterally and that could cause labor negotiation problems for Selig and the owners in their discussions with the PA on a new CBA (the current one will expire on December 11, 2011), or at least in terms of developing an alcohol/DUI policy.

ii) The Players Association could file a grievance with an independent arbitrator (under the terms of the CBA), arguing that Selig has overstepped his authority and that alcohol and related arrests need to be mentioned in the Policy.

iii) Selig has to be careful not to violate the Americans with Disabilities Act, which regards alcoholism as an impairment and, in certain situations, can empower an employee for seeking redress when an employer punishes him/her for matters related to alcoholism. See our discussion on Roy Tarpley for more.

Posted By : Michael McCann

Catching up with Links

Message posted on : 2011-05-06 - 13:30:00

* Dan Fitzgerald of Connecticut Sports Law has an excellent piece on the difficult choice undrafted free agents have in choosing between certain opportunities in the United Football League and potential/lockout-uncertain ones in the National Football League.

* Speaking of the UFL, Darren Heitner over on Sports Agent Blog has posted the league's standard contract.

* Over on The Blackbook Legal Blog, Goutman Jois has some terrific commentaries on the NFL lockout (see here and here for example)

* I speak with the Associated Press about an ethics investigation into the potential conflict of interest of members of an NCAA panel who are looking into the Fiesta Bowl also attending a Fiesta Bowl-sponsored retreat.

Posted By : Michael McCann

NCAA Rule Change Ignores Players' Best Interests

Message posted on : 2011-05-05 - 17:00:00

A few weeks ago I wrote an article taking the NCAA to task for failure to provide an adequate amount of time for underclassmen in men's basketball to “test the waters” before having to remove their name from the NBA draft if they wished to retain their college eligibility. It is obvious that the constraints this rule provides on the amount of time individuals have in making this decision are intended to benefit colleges yet do not reflect a modicum of interest in what's right for the student-athlete.

Just recently the NCAA, in their infinite wisdom behind the lobby of the ACC basketball coaches, made a rule change for 2012 further restricting the date by which student-athletes must renounce their NBA aspirations if they intend to return to school from May 8th (currently) to April 10th (new rules)—not surprisingly the day before the NCAA's spring basketball signing period.

The rationale for this policy change, as described by the coaches who sponsored this rule, was to make sure that student-athletes could focus on academics during the spring while also giving coaches a better idea of their roster for the coming season before the recruiting period closes. While I would always applaud a commitment to academics, coaches and the NCAA don't seem to have any concern about missing class time for conference and NCAA Tournament games as schools take teams on the road for much of the month of March.

What I glean from this rule change is that making a bad career decision is fine, just do it quickly so that a school knows whether or not they need to recruit your replacement.

Anyways, for a wonderful opinion piece on this topic, read the article that fellow advocate for student-athletes Marc Isenberg has posted on his Money Player blog here.

Posted By : Warren K. Zola

Recent BCS-Related Developments

Message posted on : 2011-05-05 - 09:00:00

For those following the on-going saga regarding the legality of the Bowl Championship Series under federal antitrust law, there have been several developments this week that may be of interest.

First, the Honolulu Star-Advertiser reported on Tuesday that the State of Hawaii is considering whether to join the forthcoming antitrust suit that Utah Attorney General Mark Shurtleff intends to file against the BCS. Hawaii AG David Louie reportedly discussed the issue at length with Shurtleff during a recent meeting of state attorneys general, and his office is working on an agreement with Utah to share related materials. Hawaii would be a logical state to join in such a suit, given that its flagship university is in a non-BCS conference, and received a disproportionately small share of revenue for its 2008 Sugar Bowl appearance.

Second, Christine Varney, an Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, sent a letter on Tuesday to NCAA President Mark Emmert, inquiring as to the NCAA's position on the BCS. Varney's letter began by stating that "serious questions continue to arise suggesting that the current [BCS] system may not be conducted consistent with the competition principles expressed in federal antitrust laws." The letter then went on to ask the NCAA to explain why it does not offer a playoff for the Football Bowl Subdivision, and whether the NCAA believes the BCS currently serves the best interests of "fans, colleges, universities, and players." The letter closes by stating that the NCAA's views on these issues will help the Justice Department determine how to proceed with respect to the BCS, a clear signal that the federal government continues to investigate the legality of the system.

It will be interesting to see how the NCAA responds to the Justice Department's letter. The six BCS conferences possess an inordinate amount of power within the NCAA, and will presumably pressure the organization to remain agnostic regarding a playoff in its response. However, the NCAA membership at large would stand to benefit significantly if a playoff were implemented in the Football Bowl Subdivision, given that the NCAA would undoubtedly retain a share of the revenues it generates (as it does for the NCAA Division I men's basketball tournament). In the unlikely event the NCAA came out in favor of a playoff, pinning the blame for the lack of a playoff on the obstinate leadership of the six power conferences, it could inflict a significant blow to the BCS's chances of surviving this latest round of political pressure.

Finally, CNN is reporting that Utah Senator Orrin Hatch "demanded" the Justice Department further consider a potential lawsuit against the BCS during Attorney General Eric Holder's appearance before the Senate Judiciary Committee on Wednesday. AG Holder reported stated that he did "not disagree" with Senator Hatch's characterization of the BCS as a "mess" that provides distinct advantages to certain "privileged conferences."

All in all, one has to wonder how much longer the BCS leadership will continue to defend the system in the face of increasing political pressure, especially given the fact that the six BCS conferences would stand to earn hundreds of millions of dollars more per year under a playoff system.

Update: Mike McCann is interviewed today by David Moltz of Inside Higher Ed on the Justice Department's letter to the NCAA.

Update #2: The PlayoffPac blog discusses the relevance of the NCAA's views on the playoff matter, noting that NCAA bylaws prohibit any outside entity from establishing its own championship tournament.

Posted By : Nathaniel Grow

A Primer on Referee/Umpire/Sports Official Bias

Message posted on : 2011-05-04 - 08:00:00

The issue of possible bias among referees, umpires, and sports officials is timely. Late last month, ESPN Dallas/Fort Worth ran a story highlighting how the Dallas Mavericks have fared in the playoffs when NBA referee Danny Crawford was part of a three-person crew. While the numbers set forth in the ESPN article were eye-catching, they were far from conclusive. In a 2009 article (here or here), I analyzed every Dallas Mavericks game during a seven year period, not merely the team's playoff games. I did not find any NBA referee to exhibit bias against the Mavericks when considering all games.

In the second of a trilogy of micro-level NBA referee bias-related journal articles, I investigated allegations made by former Miami Heat coach Pat Riley against two NBA referees (and found no bias on the part of the referees). The resulting paper was published yesterday in the Journal of Quantitative Analysis of Sports. Below is an excerpt that highlights some of the research being done on the issue:

"The presence of bias among referees, umpires, and judges in sports has been part of a growing body of research. Among basketball referees, the analysis of bias has been conducted on the basis of omissions (Moskowitz and Wertheim, 2011), race (Price and Wolfers, 2010), profit-maximizing motives (Price, et al., 2010), point spreads and home court advantage (Shmanske, 2008), aggressive play (Anderson and Pierce, 2009), spectator influence (Lehman and Reifman, 1987), and personal animosity (Winston, 2009; Rodenberg and Lim, 2009). Outside of basketball, Parsons et al. (2011) found evidence of racial bias by baseball umpires, Brimberg and Hurley (2009) pinpointed a home bias among ice hockey referees, Emerson, et al. (2009) focused on judging bias in Olympic diving, and Morgan and Rotthoff (2010) unearthed some evidence of sequential order bias among gymnastics judges. In soccer, referee decision making has been investigated as a function of crowd noise (Nevill, et al., 2002) and social pressure (Garcicano, et al., 2005; Dohmen, 2008). Evidence of referee bias on the basis of nationalism has been investigated in rugby (Page and Page, 2010) and figure skating (Zitzewitz, 2006; Fenwick and Chatterjee, 1981)."

NOTE - If there are any like-minded researchers looking to collaborate, please drop me an email or touch base at the upcoming Sports Lawyers Association conference in Washington, DC. I have found this quasi-legal research line to be fascinating and, in turn, fertile for extensions.

Posted By : Ryan M. Rodenberg

Frank McCourt sued by former law firm for unpaid bills

Message posted on : 2011-05-03 - 18:00:00

I recently examined Major League Baseball's decision to take over the Dodgers from Frank McCourt, who has encountered a number of problems. David Frank of Massachusetts Lawyers Weekly now looks at Bingham McCutchen, a Boston law firm that used to represent McCourt, suing McCourt to collect hundreds of thousands of dollars in unpaid legal fees. Bingham McCutchen wants a Massachusetts state court to declare that the firm met its standard of care in representing McCourt. Bill Shaikin of the Los Angeles Times has additional coverage.
Posted By : Michael McCann

Men's sports and Title IX

Message posted on : 2011-05-03 - 12:00:00

Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get put in a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).

But it is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory.

I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it.

Posted By : Howard Wasserman

Miami Book Presentation

Message posted on : 2011-05-02 - 14:17:00

Forgive me a bit of shameless self-promotion:

This Tuesday, May 3, at 8 p.m., I will be doing a talk on my book, Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, at Books & Books, the wonderful independent bookstore in Coral Gables. This is part of the book series sponsored by FIU's School of International and Public Affairs. Recent events--namely the district court's decisions allowing some of the players' civil claims to go forward against Duke and the City of Durham and the indictment of Crystal Mangum for murder in her boyfriend's stabbing death--have suddenly put this case back in the news.

If you are in Miami Tuesday, I hope you can stop by.

Posted By : Howard Wasserman

When Somebody's “0” Does Go

Message posted on : 2011-05-01 - 20:00:00

In one of the most sensational months of professional boxing in recent history, the undefeated records of two of boxing's hottest young contenders, middleweights James (Stone Cold) Kirkland and David LeMieux, and those of two of its mostly highly regarded young champions, Andre Berto and Juan Manuel (Juanma) Lopez, all came to an end in dramatic fashion.

While it is widely perceived that a boxer's “0” makes them that much more marketable, the way in which the first loss is suffered and the implications of same are ultimately what makes the difference in the eyes of a boxer's promoter or manager and the boxing public.

What kind of protections do boxing's promoters and managers create for themselves in the event that the first loss makes them lose faith in their previously undefeated charges or alters their plans for them?

A quick look at the most standard types of contractual provisions to address a boxer's first loss, and all other losses, follows.

The Right to Terminate Following a Loss or Draw

Is it not uncommon to see language in a boxing promotional or management agreement that empowers a manager or promoter to terminate the agreement, at his sole discretion, in the event that the boxer “shall fail to have been declared the winner” of one or two matches during the term of the agreement. As it sounds, this provision means that if a boxer is either the recipient of a loss or a draw, he may soon be a free agent if his manager or promoter so decide. While a boxer may view this provision as a right for manager or promoter to kick him when he is down, think of it from a manager or promoter's point of view; do they want to continue to be contractually and financially obligated to someone that might reveal themselves as a dog in a given loss.

With the possible exception of Kirkland, who was steamrolled in one round by the underrated Nobuhiro Ishida, it would not appear that any of this month's losers truly showed themselves to be unworthy of a continued relationship with their promoter or manager. Each of them lost after spirited efforts, and each of them is either a big enough draw or a proven enough entity to jump right back into the mix. LeMieux may need some rehabilitation and confidence building fights, as he is young and was previously unproven at the top level of the sport, but he is a draw in his native Quebec and an explosive, TV-friendly puncher. Berto and Lopez were both top level young champions who had proven themselves and their worth on several occasions prior to their respective losses, and during their losing efforts themselves, and could jump right back into important bouts. Even Kirkland was a popular, TV-friendly attraction who had blown through the middle and upper-middle echelon of the middleweight division in an explosive, Tyson-esque manner before being chinned by Ishida. Therefore, provided that the aforementioned boxers' teams all had termination provisions that could be activated by a boxer failing “to have been declared the winner” in their agreements, they all have to think long and hard before releasing such talent.

The Right to Re-Negotiate Terms Following a Loss or Draw

A promoter or manager who aware that he either may be taking on damaged, but marketable, goods at the start of a given agreement, or is simply cognizant of the fact that no one is unbeatable but believes every boxer deserves the chance to redeem themselves, may reserve the right to renegotiate certain terms of their agreements, such as the minimum number of guaranteed bouts, the amount of a monthly stipend, or the minimum purses, in the event that a boxer “failed to have been declared the winner” of a bout or two during the term. While such a provision may result in the boxer having less activity or less income generated under a given management or promotional agreement going forward, it also means that they are not left out in the cold as a free agent after a loss or draw and will be given the opportunity to come back from their setback without a drastic change in the make-up of their team. In sum, a renegotiation could be far better than nothing for a boxer who may otherwise have nowhere else to turn following the loss of his “0.”

The Right to Toll the Term of the Agreement

Perhaps a boxer is unable to fight for several months due to a medical suspension or decides he needs some time to re-evaluate his career and thus takes a year or two off following a loss or a draw. Indeed, Kirkland, Lopez, and LeMieux were all likely placed on medical suspensions since they lost by knockout. One or all of them may wish to take some time off to reevaluate their careers and take inventory. A tolling provision in a promotional or management agreement would cover such scenarios and allow a boxer's team to continue to benefit from its agreements with him in times of uncertainty. As previously detailed in “Toll Road Back to Ghost Town?,” a typical tolling provision allows a promoter or manager to extend the term of their agreement with a boxer in the event of a postponement of a given fight, or in the event that the boxer becomes injured, suspended, or permanently/ partially disabled. This provision is placed in an agreement to help ensure that the promoter or manager has every opportunity to get a return on his investment in a boxer no matter what happens during the term of their relationship. It can have advantages for the boxer too, as it makes certain that he has a promoter and/or manager to continue his career with following injuries, personal troubles, suspensions, and other events that keep him out of the ring for appreciable lengths of time.

Sore Losers and the Morals Clause

What if, for example, Kirkland decided to go on an anti-Japanese diatribe, including derogatory remarks about the Japanese tsunami victims, following his loss to Ishida rather than just complaint about the stoppage? Or, per actual events, what if the promoter or manager of super middleweight contender Khoren Gevor decide that his attack of referee Manfred Kuechler following his tenth round disqualification loss to Robert Stieglitz on April 9, 2011 makes him more difficult to promote and was generally bad for business? Well, if there was a morals clause in any of Kirkland's or Gevor's agreements, the aforementioned antics following their losses could provide another reason for a promoter or manager to unload them. As previously detailed in “Throwing Stones When Living with a Glass Jaw?,” a typical morals clause allows one or both parties to a given agreement the option of terminating the agreement in the event that the other party does something to either bring ill-repute to himself or otherwise does something to sully the other party's name or image. Anti-Japanese slurs and assaults on referees theoretically qualify as occurrences that would bring ill-repute to someone or sully a party's name or image. A word to boxers who are virulently disappointed following a loss and cannot think of anything appropriate to either say or do: do your best to keep it to yourself until the press is outside of an earshot. There is no need to put your contractual relationships at risk because of inappropriate words or actions in the ring following a loss.

A smart manager would do his part to both negotiate these protections into his own agreement with a boxer and lessen the impact of any such protections when negotiating a boxer's promotional agreement. Likewise, a smart promoter would be smart to make the aforementioned protections as strong as he feels a particular situation warrants so that he is not compelled to carry any boxer perceived as dead weight following a bad loss or draw. With these protections available for both their management and promotional agreements, the boxers themselves are best served to simply do their part to show up for each of their bouts in the best mental and physical condition that they can be and give the best effort that can be expected of them. Otherwise, when the 0, 1, or 2 goes, they will increasingly be at the mercy of the whims of those in charge of handling their professional careers.

This article can also be found on http://www.8countnews.com. Since this article was originally written, another hot undefeated prospect, 2008 U.S. Olympic alternate Roberto Marroquin, lost his "0" in a split decision loss to tough Mexican journeyman Francisco Leal. Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court.

Posted By : Paul Stuart Haberman

New Sports Illustrated Column: Eighth Circuit grants temporary stay -- NFL Lockout is Back On

Message posted on : 2011-04-29 - 21:37:00

Here's my new SI column on tonight's big news from the Eighth Circuit: Judge Nelson's preliminary injunction order has been temporarily stayed and the tea leaves suggest the order will be made permanent.
Posted By : Michael McCann

Tomorrow in Boston: A Discussion on NFL Labor Negotiations

Message posted on : 2011-04-28 - 22:43:00

My Vermont Law School colleague and good friend Professor Sean Nolon, who is Director of the Dispute Resolution Center at our school, and I will give a joint presentation the NFL labor crisis tomorrow at the Boston office of Bulkley, Richardson and Gelinas. While the event is primarily geared for Vermont Law School alumns, please contact me if you would like to attend as I can secure you an invitation.


You are cordially invited to a
Boston Vermont Law School Alumni Association
Brown Bag Lunch
NFL Labor Negotiations
with guest speakers
VLS Professors Sean Nolon and Michael McCann<
Friday, April 29, 2011
12:00pm
at Bulkley, Richardson and Gelinas, LLP
125 High Street
Oliver Street Tower, 16th Floor
Boston, MA
RSVP to
Kim Evans at alumni@vermontlaw.edu
or 802-831-1347
Please remember to RSVP so that we can add your name to the list for security clearance at Bulkley, Richardson and Gelinas.

Posted By : Michael McCann

Reminder: SLA and Sullivan and Worcester Panel tonight

Message posted on : 2011-04-28 - 12:38:00

If you're in the Boston and are looking for a timely sports law discussion - it should be fun and I strongly suspect the NFL legal chaos will work itself into the discussion:


The Sports Lawyers Association and Sullivan & Worcester LLP present

Boom Goes The Dynamite! Top Sports Transactions of 2010
Thursday, April 28, 2011
Program: 5:30 pm - 6:30 pm
Reception: 6:30 pm- 7:30 pm
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
MAP

The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC.

Speakers:


Please RSVP by April 22. If you have questions or need more information, please contact Katie Potter at 617.338.2923 or kpotter@sandw.com.

Posted By : Michael McCann

New Sports Illustrated Column: Judge Nelson Denies NFL Stay. What's Next?

Message posted on : 2011-04-28 - 02:08:00

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

Judge Nelson says no stay for NFL, so the NFL is -- quite reluctantly and perhaps temporarily -- back in business. Here's my new SI 10-point column on what that means for the league and players. Here's an excerpt:
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

Posted By : Michael McCann

Boston Marathon concedes its course is ineligible for world, American records

Message posted on : 2011-04-27 - 19:30:00

The organizers of the Boston Marathon decided today not to contest IAAF rules that make the course ineligible for a world record. (The Boston route ends 459 feet of elevation below the start, and it is a point-to-point course that is susceptible to a tailwind such as the one last Monday that helped Geoffrey Mutai finish in 2 hours, 3 minutes, 2 seconds _ 57 seconds faster than Haile Gebrselassie's world record.)

B.A.A. officials had said they would file the paperwork to have the record certified, even though the IAAF language is clear and Boston has long been known to be ineligible. Today the B.A.A. decided not to force a confrontation over the issue. Instead, it said it would "engage members of Boston's scientific and medical communities" to see if they can't come up with new rules that would better recognize the challenges of the course, notwithstanding its net downhill layout.

Posted By : Jimmy Golen

SBJ Sports Law Article

Message posted on : 2011-04-27 - 14:00:00

The April 25, 2011 issue of Sports Business Journal includes an insightful article by Bill King about several lawyers who work where the law and the sports industry overlap. Lawyers at Proskauer, Weil Gotshal & Manges, O'Melveny & Myers, and other law firms are profiled. The article appears to be gated online, but is worth a read if you can get access to a hard copy or if you have a subscription to the web-based companion publication.
Posted By : Ryan M. Rodenberg

Josh Luchs to speak at New York Law School tomorrow

Message posted on : 2011-04-27 - 12:00:00

From Elliot Solop of The Sports Tomato:
Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!
Here's the info:
Thursday, April 28, 2011
1:00 p.m. 2:00 p.m.
Room WA10
About our speaker:

Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents. Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.
Notable former clients of Josh Luchs include:
Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).
Please RSVP to nylawsports@gmail.com.

Posted By : Michael McCann

New Sports Illustrated Column: How does NFL Ruling Impact the NBA and NBA Players?

Message posted on : 2011-04-26 - 19:17:00

In a new SI column, I write the potential impact of Judge Nelson's order in favor of NFL players on the NBA and NBA players, two groups which are headed for a similar labor crisis this summer and possibly into next season.

Here's an excerpt:
NBA players may be less able to show irreparable harm caused by a lockout.

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

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

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

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

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

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

Posted By : Michael McCann

New Sports Illustrated Column: NFL Players Secure Big Victory before Judge Nelson

Message posted on : 2011-04-25 - 23:01:00

Judge Nelson granted the players the injunctive relief they were seeking -- but an appeal may make it a short-term success. I have an SI column on the ruling and what it means. Here's an excerpt:
8. What effect, if any, does Judge Nelson's ruling have on the NBA?

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

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

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

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

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

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

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

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

Posted By : Michael McCann

The Unlucky NFL Draft Class of 2011

Message posted on : 2011-04-25 - 17:45:00

After months of speculations and predictions the NFL draft will finally begin on Thursday, April 28th. Commissioner Roger Goodell will host the festivities—expect plenty of boos from New York's finest—and call out the names of first round picks. While sports fans will argue over selections and trades, it's important to give a nod to the man who conceived of professional league drafts—Bert Bell.

Tired of watching the NFL power brokers of the day—Bears, Packers, Redskins, and Giants—sign all the college stars, Bell proposed a new system to distribute talent. As president of the Philadelphia Eagles, Bell proposed the concept of an NFL draft at a league meeting on May 18, 1935. The goal was competitive parity and after some discussion the league voted unanimously to support this new initiative.

The Boston Globe's Greg A. Bedard has a wonderful story about Bell in the April 24, 2011 edition, noting this year serves as the 75th Anniversary of the NFL Draft. Here's a link to the story.

It is no disrespect to Bell as a pioneer if agree with Alan C. Milstein's argument, as presented in this article, that having a college draft at all is illegal.

* * * *

While the press and talking heads (quick nod of respect to personal favorite NFL Network and Boston College alumnus Mike Mayock) analyze and grade the teams' efforts over seven rounds, don't forget about how this year is unique. Traditionally, as soon as the name of Mr. Irrelevant (the last pick of the draft) is called, the phone lines begin heating up between teams and the agents of those representing “priority free agents” (PFAs).

Often it is better to be a free agent than a late round draft selection as you can choose the team with the best opportunity for someone playing your position. This year, priority free agents waiting for their cell phones to ring will hear only deafening silence. Why? Because the NFL lockout forbids any contact with free agents and that covers not only those NFL players whose contracts have ended but also those hoping to enter the league.

For many of us in the field of “sports law,” professional league drafts are fascinating symbols. As sports fans they hold that special aura of future promise for our favorite teams. However, we also understand the unique laws that forbid MBA graduates to be forced to work in a city that selects them “congratulations you're now assigned to a consulting firm in Vancouver!!” yet allows a football player to have his rights assigned and told where to report for work.

While you enjoy the pomp and circumstance of this yearly spectacle, don't forget to tip your cap to Bert Bell and give thought to those PFAs who will be waiting by the phone as brighter minds than mine try to figure out how to get the business of football back up and running.

[Note: A longer version of this article can be found at the Huffington Post here.]

Posted By : Warren K. Zola

NFL and Law Panel at New York Law School this Tuesday

Message posted on : 2011-04-25 - 00:01:00

Alycia Huckabey - the President of the New York Law School Sports Law Society - lets me know about a great event tomorrow:

* * *

Please join the New York Law School Sports Law Society for an exciting event this Tuesday April 26th from 3:30- 5:30 pm. Representatives from the NFL Players Association and a current NFL player (name to be announced soon) will discuss the current NFL lockout and answer questions.The event will be held at New York Law School, in the Auditorium (A014).

If you are interested in attending this event please RSVP to Alycia.huckabey@law.nyls.edu.


Best,
Alycia Huckabey

NFL PLAYERS ASSOCIATION TO HOLD DISCUSSION
TUESDAY AT NEW YORK LAW SCHOOL

WHAT:
Representatives from the NFL Players Association and a player from the NFL will hold a session at New York Law School, and is open to students, the public and media.

The program titled, “The NFL Lockout: How We Got Here and What Comes Next” is part of a series of appearances held at higher education institutions.
WHO:
· George Atallah, NFLPA Assistant Executive Director of External Affairs
· A Player from the National Football League (name to be released closer to date)
· Moderated by the New York Law School Sports Law Society

MORE:
March 12, NFL owners locked out their players, ending more than 20 years of labor peace in America's most popular sport. April 19, George Atallah and a player from the NFL will host a presentation on the state of football.

Topics such as success of the game, the lockout and how the sides reached this point will be discussed. A full question-answer session will follow.

Media availability will be conducted at the conclusion of the event.

WHEN/
WHERE:
Tuesday, April 26, 2011 3:30 pm -5:30 pm
New York Law School
185 W. Broadway New York, NY 10013
Auditorium, A014

MEDIA:
For more information or to RSVP:
Alycia Huckabey (New York Law School)



Posted By : Michael McCann

Toreros and Black Sox: Point-Shaving in Southern CA Sparks Reflection on the Recurring (Underreported?) Problem of Fixing Games

Message posted on : 2011-04-24 - 08:00:00

On April 11, 2010 a Grand Jury in the Southern District of California handed down an indictment against two former University of San Diego basketball players, a former assistant coach, and seven others, for Conspiracy to Commit Sports Bribery, Conduct an Illegal Gambling Business, and Distribute Marijuana in violation of 18 U.S.C. 371. The indictment does not specify what games were fixed, but it alleges that San Diego players influenced the outcome of multiple games for monetary bribes. One of the players implicated in the scandal is Brandon Johnson, San Diego's all time leader in points and assists.

While opinions vary on the prevalence of teams “throwing” games, it has undoubtedly been going on for a long time. In fact, new evidence suggests that it may have been more common in baseball during the early twentieth century than once thought. The infamous Black Sox scandal from the 1919 World Series has been well documented, but a recent Associated Press story indicates that their cross-town rival may have done it first. A 1920 deposition of one of the banned White Sox fixers, Eddie Cicotte, stops short of accusing the Cubs of throwing the 1918 World Series against Boston, but strong inferences are made that members of the Cubs were offered $10,000 to throw the World Series and that the White Sox actually got the idea from the Cubs. Historians' note that players during this time were grossly underpaid and the bribe represented a substantial sum. The motive, coupled with a few suspicious plays during the 1918 Series, suggests that the Cubs' drought could have been at least a few years shorter than it currently stands.

While this anecdote offers an interesting insight into the influence of organized crime during that era, it is (presumably) of little consequence, considering the salaries of today's professional athletes. It would be naïve to think gambling does not play a role in professional sports (think recently paroled NBA referee Tim Donaghy), but “fixing” is much less common in the professional realm because the players have too much at stake. The question is, just how common is it at the collegiate level where NCAA amateurism standards strictly prohibit the paying of players. Like the underpaid baseball players of yesteryear, the latent motive exists.

High profile point shaving scandals have marred college basketball for decades. Point shaving at CCNY during the 1950-1951 season proved disastrous for the once prominent program. In 1978-1979, Boston College was embroiled in a scandal that involved infamous gangsters Henry Hill and Jimmy Burke. Prior to the San Diego indictments, the last major point-shaving scandal occurred at Arizona State in the mid 1990's. So are these merely isolated incidents? A 2008 study on wagering in NCAA athletics suggests probably not. The study revealed that 1.6 percent of men's basketball student athletes were asked to affect the outcome of a game and 2 percent admitted to betting on their own team.

While this percentage is not insignificant, it is difficult to predict just how pervasive the problem really is. First, the NCAA, burdened by a consistent array of compliance issues, does not have the staff to adequately monitor illegal gambling, and furthermore, the involvement of organized crime often takes investigations out of the NCAA's hands. Second, games fixing like point-shaving is difficult to prove. It usually involves minimal differences in point spreads and a player's efforts to impact a game undoubtedly go unnoticed more often than not. Finally, the best players are the ones with the most opportunity to impact games, but also the most at stake. The involvement of Brandon Johnson at San Diego proves that the star players are not immune, but a player with significant professional prospects has less incentive to risk his life and his career. The San Diego scandal may induce the NCAA to ramp up its enforcement efforts, but this incident will unfortunately not be the last.

See other writing on this Blog related to point shaving from Geoff, Howard, and Greg. HT to law clerk, Brian Konkel, for his work on this piece.

Posted By : Tim Epstein

Scocca on the expanded wild card

Message posted on : 2011-04-23 - 17:34:00

Tom Scocca at Slate, who shares my antipathy for the baseball wild card for most of the same reasons (as well as a couple I had not thought of), argues that the new proposal to add a second wild card actually turns out to be a good second-best option (the best option being eliminating the wild card altogether, which, unfortunately, is not going to happen).

As Scocca explains, the already-overstuffed schedule, along with MLB's recognition that things cannot go any deeper into November or earlier into March, means that the addition "wild-card round" must be short--one game or at most two-out-of-three. Weird things can happen in a short series. So this creates a meaningful incentive--currently missing--for a top team to win the division rather than settling for the wild card--avoid that short series. It also means that the two best second-place teams go head-to-head, rather than "battling" one another by proxy against very different (particularly in difficulty) schedules.

True, it also may mean more 87-win teams in the playoff race every year. But again, this is just a second-best option.

Posted By : Howard Wasserman

Utah AG Announces He Intends to File an Antitrust Suit Against the BCS

Message posted on : 2011-04-23 - 06:00:00

USA Today reported on Wednesday that Utah Attorney General Mark Shurtleff intends to file a federal antitrust suit against the Bowl Championship Series within "the next couple of months." Shurtleff reportedly told the paper that the attorneys general of at least two other, unnamed states would join him in the suit. The story also reports that Shurtleff stated the U.S. Department of Justice has indicated it would consider following on with its own formal investigation should the state AGs take the lead by filing a suit. Shurtleff is seeking to enlist the help of an antitrust law firm to assist with the case.

This is not the first time that Shurtleff has spoken out against the BCS. A vocal critic of the BCS dating as far back as 2003, Shurtleff announced that he was formally investigating a potential antitrust claim against the BCS in 2009. Meanwhile, Shurtleff stated last October that his office had finished a draft complaint for the case. It will be interesting to see if Shurtleff follows through on this latest threat, or if he is just trying to increase the pressure on the BCS heading into its annual meeting next week in New Orleans. Given Shurtleff's previous stated desire for the U.S. Department of Justice to take the lead on an antitrust suit against the BCS, this latest announcement may also provide an indication that the federal government is unwilling to initiate a suit itself.

While the merits of such a suit can, of course, be debated (see here and here), ultimately I'd be surprised if Shurtleff's suit ever proceeded all the way to trial. There is little incentive for the BCS conferences to spend millions of dollars (and risk treble damages) defending a system that generates hundreds of millions of dollars less per year than would a playoff system.

Meanwhile, although BCS officials have previously threatened to return to the pre-Bowl Alliance post-season model should the BCS system be challenged legally, this threat rings hollow for several reasons. First, the BCS conference schools would be leaving too much money on the table -- money they have grown to depend on during the lifespan of the BCS -- to ever seriously consider a return to the old system. Second, as Sports Illustrated's Andy Staples notes, even if college football initially did go back to the pre-Bowl Alliance days, several of the current BCS conferences (in particular the Big East and ACC) would likely fare much worse than they would under a playoff system. Therefore, even if the SEC, Big 10, Pac 12, and Big 12 were all content to return to the old system, the ACC and Big East would likely join with the current non-BCS schools to give the "have-nots" a significant majority within the Football Bowl Subdivision, dramatically increasing the pressure on the NCAA to finally implement a playoff system.

Therefore, although an antitrust suit against the BCS is itself unlikely to directly lead to a court order mandating that the NCAA adopt a playoff system, I strongly suspect that a playoff system would ultimately result should AG Shurtleff files suit. It simply doesn't make sense for the BCS conferences to expend the resources necessary to defend the current system, and in lieu of the current arrangement, a playoff system is the most practical option.

Update #1: A new report out states that AG Shurtleff will be meeting with officials from the U.S. Justice Department this week, so my assumption above that the federal government may be unwilling to be involved in the case might be premature.

Update #2:
AG Shurtleff discussed his decision to file suit against the BCS with a local radio station yesterday. The interview is available here.

Posted By : Nathaniel Grow

New Sports Illustrated Column: Can Bud Selig legally take Dodgers away from Frank McCourt?

Message posted on : 2011-04-22 - 16:00:00

I have a new SI column on Bud Selig's decision to remove operations power from embattled Dodgers owner Frank McCourt, who will retain his equity interest but effectively be barred from any decision-making. Here are excerpts from the column:

* * *

. . . McCourt could argue that Selig and Major League Baseball have violated the terms of the franchise agreement and have consequently caused him financial harm. To advance that claim, McCourt would insist that Selig lacks the specific authority to take over a franchise, particularly a franchise that is allegedly in compliance with MLB's financial guidelines.

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

* * *

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

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

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

* * *

To read the rest, click here


Posted By : Michael McCann

In track, the record isn't always the fastest time

Message posted on : 2011-04-21 - 22:33:00

[The following post is authored by Associated Press sports writer Jimmy Golen, who is a graduate of Yale Law School and an adjunct professor at Boston College - we look forward to more of Jimmy's excellent commentary on our blog -- MM]:

* * *

If you shoot a 58 in a PGA Tour event, that's a new record. It's less impressive if it happens in CVS Charity Classic than the U.S. Open, but it's still a record.

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

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

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

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

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

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

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

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

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

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


Posted By : Jimmy Golen

San Fran Giants owner Bill Neukom to speak at Vermont Law School on Wednesday April 27

Message posted on : 2011-04-20 - 19:32:00

All are invited to attend this event hosted by the Vermont Law School Sports Law Institute:

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

April 20, 2011

SOUTH ROYALTON, VT -- Bill Neukom, who became the San Francisco Giants' boss after serving as Microsoft's lead lawyer and head of the American Bar Association, will discuss law, sports and business at noon, Wednesday, April 27 in the Chase Community Center at Vermont Law School. The event is free and open to the public.Neukom Family Foundation
"In drawing on his extraordinary career, Bill Neukom will offer our students invaluable insights into opportunities that can be pursued with a legal education and the emerging role of sports law as part of that education," said Professor Michael McCann, director of the VLS Sports Law Institute, which is hosting Neukom's talk. "He will reveal how his legal education has advanced his business, management and sports careers."
Neukom, who has been managing general partner of the Giants since 2008, was named one of the "100 Most Influential Lawyers" by National Law Journal. He served as the lead lawyer for Microsoft for nearly 25 years, including 17 years as general counsel and head of the company's legal, government affairs and philanthropic activities. His duties included protecting Microsoft's intellectual property rights, most prominently in Apple Computer v. Microsoft Corp., and defending Microsoft from antitrust suits.
As president of the ABA in 2007-2008, he championed access to legal services for the poor and promoted the rule of law in the U.S. and abroad. He is founder of the World Justice Project, an initiative to strengthen the rule of law worldwide, and the Neukom Family Foundation, which supports nonprofit groups in health and human services, education, justice and the environment. His interests include human rights, intellectual property rights, ethics and legal responsibility, global rule of law issues, and antitrust and consumer protection. He graduated from Stanford Law School and received a B.A. degree from Dartmouth, where he is a former chairman of the board of trustees.
CONTACT: John Cramer, Associate Director of Media Relations
Office: 802.831.1106, cell: 540.798.7099, jcramer@vermontlaw.edu

Posted By : Michael McCann

Transitioning from the NCAA to the NBA: A Time for a Change in Rules

Message posted on : 2011-04-19 - 20:45:00

New article from the Huffington Post by Boston College's Warren K. Zola on the challenges student-athletes have in transitioning from the NCAA to the NBA under current rules.


The article starts:

"The recently concluded NCAA men's basketball tournament has once again highlighted some of the very best amateur basketball talent in the country. While some players continued to showcase their exceptional talents, new stars also emerged in the considerable spotlight of the most watched basketball tournament in the world. Many of the college basketball fans, whose sheer size enabled the not-for-profit NCAA to recently sign a 14 year, $ 10.8 billion dollar rights agreement with CBS and Turner Broadcasting, now turn their attention to the 2011 NBA Draft which will be held on June 23rd.

This article calls attention to the challenges that student-athletes in the sport of college basketball have when trying to make a fully informed decision as they evaluate whether or not they should enter the NBA draft and forgo remaining college eligibility. While unique to men's basketball, this precise situation highlights a more global trend in which colleges, conferences and the NCAA have done shockingly little to provide guidance and counsel as student-athletes across the country navigate the process of transitioning from college to professional leagues; an analysis put forth in a recently published law review article this past winter.

As is the case for every sport the process of entering the NBA is distinct and often confusing to those that have this opportunity."

To read the article in its entirety you may download it here.

Posted By : Warren K. Zola

Would Appeal by Barry Bonds succeed?

Message posted on : 2011-04-16 - 14:36:00

I talk to Paul Elias of the Associated Press about this topic. Bonds plans to appeal and argue that the jury instructions for Count Five constituted a legal error by Judge Illston. While the standard of review would be de novo, I don't think the appeal would work. Elias interviews several other persons, including Stanford Law Professor Bill Gould. Here are our comments excerpted:
* * *

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

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

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

* * *

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

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

* * *

To read the rest, click here.

Posted By : Michael McCann

Legal Play in the NFL Lockout

Message posted on : 2011-04-16 - 08:48:00

Clay Travis and I speak with J. Craig Williams about the NFL lockout for the Lawyer 2 Lawyer Show on the Legal Talk Network.

Here is our discussion: Legal Play in the NFL Lockout (to directly access the audio file of our discussion, click here).

Posted By : Michael McCann

New Jersey State Bar Association Symposium: Who You Calling an Amateur? Legal Perspectives on the NCAA's Amateurism Rules

Message posted on : 2011-04-15 - 12:02:00

This looks like an excellent event:

Wednesday, April 20, 2011 – 6 p.m.
Seton Hall Law School – One Newark Center, Room 373, Newark, NJ
Who You Calling an Amateur? Legal Perspectives on the NCAA's Amateurism Rules

Hosted by the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association
co-sponsored by the Sports Lawyers Association


This program will discuss the NCAA's current amateurism rules, proposed changes to those rules, and the recent litigation relating to the use of a student athlete's name and likeness.

This program has been approved for the following CLE credits: 1.8 NJ, 1.0 PA, 1.5 NY

$32 per person for EASL Section members, includes program, CLE credits and dinner.
For those wishing to attend only the program and dinner without receiving CLE credits, the cost is $17 per person.

Individuals interested in attending can register online at the NJSBA website.


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

Posted By : Michael McCann

Cleveland-Marshall College of Law Sports Law Symposium today

Message posted on : 2011-04-15 - 10:00:00

Sorry for the late notice, but if you're in the Cleveland area, there is an outstanding sports law symposium this afternoon at Cleveland-Marshall College of Law:

Cleveland-Marshall College of Law

Entertainment and Sports Law Symposium

The Legal Evolution of Professional Golf and Tennis


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


C
Posted By : Michael McCann

New Sports Illustrated column: Barry Bonds Verdict: Who Won?

Message posted on : 2011-04-14 - 01:00:00

I have a new SI colum on the Barry Bonds verdict. Bonds was convicted on obstruction of justice, but Judge Illston declared a mistrial on the three perjury counts. Here's an excerpt of my column:

* * *

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

This question begets big picture and small picture responses.

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

* * *

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

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

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

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

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

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

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

* * *

To read the rest, click here.

Posted By : Michael McCann

Academics and Practitioners Ask Dept. of Justice to Investigate the BCS

Message posted on : 2011-04-13 - 21:00:00

The Wall Street Journal is reporting that a group of 21 law and economics professors and practitioners have submitted a letter to the United States Department of Justice, urging the DoJ to launch a formal antitrust investigation of the Bowl Championship Series. The letter (which is available here) argues that the BCS violates antitrust law both by unfairly restricting schools in the so-called non-automatically qualifying conferences from competing in the BCS National Championship Game and other BCS sponsored bowl games, as well as by disproportionately distributing its revenue in favor of the six automatically qualifying conferences. Signatories to the letter include economists Andrew Zimbalist (Smith College) and Richard Thaler (Univ. of Chicago), as well as law professors Roger Abrams (Northeastern Univ.) and Raymond Yasser (Univ. of Tulsa).

For additional discussion of the antitrust issues surrounding the BCS, check out my article "Antitrust & The Bowl Championship Series," and Michael McCann's "Antitrust, Governance, and Postseason College Football."

Posted By : Nathaniel Grow

Division by Multiplication: Illinois Once Again Heats up the Public v. Private Debate in HS Sports

Message posted on : 2011-04-13 - 07:00:00

In 2005, the Illinois High School Association (the “IHSA”), which governs both public and private high school sports in Illinois, implemented an enrollment multiplier that requires actual enrollments of non-boundaried schools be multiplied by 1.65 in determination of classification for athletics competition. This multiplier pits smaller private schools against much larger public schools, the effectiveness of which has been hotly debated, in Illinois and other states throughout the country that have implemented mechanisms like a multiplier in an effort bring the number of state championships won by private schools more in line with their smaller numbers relative to public schools.

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.


Posted By : Tim Epstein

Sports Lawyers Association and Sullivan and Worcester Panel: Boom Goes the Dynamite!

Message posted on : 2011-04-12 - 12:00:00

I'm looking forward to speaking on this Sports Lawyers Association and Sullivan & Worcester panel in Boston on Thursday, April 28,2011 -- you are interested in attending, please RSVP.

The Sports Lawyers Association and Sullivan & Worcester LLP present

Boom Goes The Dynamite! Top Sports Transactions of 2010
Thursday, April 28, 2011
Program: 5:30 pm - 6:30 pm
Reception: 6:30 pm- 7:30 pm
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
MAP

The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC.

Speakers:


Please RSVP by April 22. If you have questions or need more information, please contact Katie Potter at 617.338.2923 or kpotter@sandw.com.

Posted By : Michael McCann

Boston College Law Review: The NCAA at 100: Perspectives at 100: Perspectives on its Past, Present, and Future

Message posted on : 2011-04-11 - 21:00:00

Boston College Law Review has published its symposium issue on The NCAA at 100: Perspectives at 100: Perspectives on its Past, Present, and Future. Here are the completed articles from it -- there is some great reading here:

Boston College Law Review

current issue


Posted By : Michael McCann

Saint Louis University Sports Law/Business Conference

Message posted on : 2011-04-11 - 14:00:00

Saint Louis University's John Cook School of Business is hosting a sports law/business conference April 15-16. The schedule for the event includes panels devoted to sports agents, intellectual property, gambling, and a host of other topics. Speaker bios can be found here. For practicing attorneys, CLE credit is also available.
Posted By : Ryan M. Rodenberg

Fan speech and fan violence

Message posted on : 2011-04-11 - 00:04:00

The Dodgers begin a three-day series against the Giants in San Francisco tonight, with all thoughts on Bryan Stow, the Giants fan who remains in a coma after being assaulted by two as-yet-unidentified Dodgers fans following a March 31 Giants-Dodgers game in Los Angeles. The Giants have announced "World Series-level" security measures for the games. Meanwhile the Dodgers have been publicizing heightened measures (including using uniformed and armed off-duty police offers for security) when the team returns to LA on Thursday. This apparently includes reconsideration of a plan to offer (and to publicize) half-price alcohol at several weekend games, after media outlets and others lambasted the team.

My concern is that efforts to crack down on fan violence require cracking down on fan conflict. And that may, inadvertently or otherwise, lead to a crackdown on fan speech. Consider the statement from LAPD Chief Charlie Beck threatening the removal and arrest of fans who come to "antagonize" other fans or fans of the other team. But a lot of things may antagonize other fans--including my cheering too loudly for or against a team or cheering in a way that some fans do not like of wearing t-shirts or carrying signs critical of the other team. Even something as seemingly innocuous as "Remember Bryan Stow" could be seen as antagonizing or intimidating Dodger fans in the Giants' ballpark. After all, by all reports the only thing Stow did was wear Giants gear and root for them during the game. It is just too easy, in the name of preventing the outlying and unusual instance of violence, cut potential problems off at the start by steering the widest possible path and exercising a quick trigger against speech before any greater problems can occur. While that is a laudable goal, it likely will entail exercising a quick trigger against so-called "antagonistic" speech that is fully protected, in no way fighting words, and highly unlikely to lead to any actual violence.

But teams recognize that they will be criticized far more harshly if there is another instance of fan-on-fan violence than if they preemptively cut off the expression of some obnoxious fans.

Posted By : Howard Wasserman

No

Message posted on : 2011-04-10 - 22:49:00

That is my simplest answer to the question that Mike and others answered for a Cincinnati Enquirer piece on whether Pete Rose should be in the Hall of Fame.

Mike argues (at least in the excerpt presented in the article) that the problem is that MLB, not a court order, imposed the lifetime ban. and Rose did not receive due process. First, I just do not place the same emphasis on Due Process that Mike does. MLB is a private entity, not a state actor, and it can give as much or as little process as it wants to give. Second, MLB was in the process of providing process--an investigation by a third party presented to a decisionmaker (Giamatti); whether that would have satisfied the Fourteenth Amendment is beside the point (although I believe it would have). (Ed: I misunderstood Mike's quotation; as he explained in an e-mail, he was not speaking of whether Rose received process, but of the process that would be necessary to reinstate Rose so as to ensure fairness to and equitable treatment of other players who have received similar bans. Not sure I agree with this point, but I withdraw the above comments).

I still disagree that the decision coming from MLB rather than following a judicial decision holds any weight. Most notably, of course, the Black Sox were acquitted, an acquittal that Commissioner Landis ignored. Again, private actor working with a lesser standard of persuasion--I have no problem with that. Finally, and most importantly, MLB did not impose the ban based on a finding that Rose had bet on baseball. Rose willingly accepted the ban as part of an agreement that halted the investigation (a consent decree or plea agreement, if you will), no doubt to avoid a formal finding that he had bet on baseball. This left Rose with plausible deniability, which he rode for fifteen years until the publication of his book.

I do agree with Mike on one point--that Rose killed his chances with his admission in the book. The problem with this truth is that people (particularly media types--I never took this view) had been pleading with Rose for fifteen years to come clean (remember the Jim Gray interview during the 1999 World Series), with the argument of "if he just comes clean, all will be forgiven." Well, he came clean and, as Mike notes, things just got worse. Maybe he waited too long.

Lastly, a quick response to George Will's point in this same article, that MLB has a problem that three all-time greats--Rose, Barry Bonds, and Roger Clemens--will not be in the Hall of Fame. Will makes the category error of lumping them together--a position I argued against previously. Bonds and Clemens (and we can throw Mark McGwire in here) will not get into the Hall because of morality-tinged votes by the Hall voters, otherwise left to their own consciences and preferences. Neither Bonds nor Clemens has been banned or otherwise sanctioned by MLB. Nor is it clear that either has done anything to warrant such a sanction; whether either broke any rule of MLB is, at best, murky. Any MLB punishment would have to come under the Best Interests power, rather than on a finding of a violation of a specific rule. And a judicial decision against either one (in their perjury prosecutions or in the various defamation cases involving Clemens) is not likely to change that. We can question whether voters should make such moral choices in their Hall votes.

But that has nothing to do with Rose. Voters are not judging his morality or ethics. Rose appears to have violated a specific rule and accepted punishment for that; that punishment carried the collateral consequence of Hall ineligibility.

If all three being out of the Hall is a problem for MLB and the Hall, the sources of the problem are very different.

Posted By : Howard Wasserman

Enforcement and Infractions: The NCAA Governing Process

Message posted on : 2011-04-10 - 21:00:00

The West Virginia University College of Law Sports and Entertainment Law Society will host a special panel presentation on Tuesday, April 12th at 12 noon entitled "Enforcement and Infractions: The NCAA Governing Process." This panel will feature:

(a) Oliver Luck, Athletic Director at WVU, former NFL quarterback, former president MLS Houston Dynamos, and father of Stanford QB Andrew Luck;

(b) Ralph Cindrich, prominent football agent, attorney and owner of Cindrich & Co;

(c) Keli Cunningham, current Director of Compliance at WVU and former compliance assistant for the Big East Conference; and

(d) andre douglas pond cummings, Professor of Law at the West Virginia University College of Law and former sports agent to NFL athletes.

This panel will tackle the thorny issues that attend complying with and enforcing NCAA regulations in a modern and evolving sports culture in the United States, from a variety of perspectives. With NCAA infractions news constantly being reported, and in light of HBO's recent "Real Sports with Bryant Gumbel" where "pay for play" was debated and booster payments to football recruits, including "the money handshake" was exposed, this timely panel will undoubtedly shed light on the NCAA's successes and failures in enforcement and its infractions policymaking.

The panel is free and open to the public and will be webcast live.

Posted By : dre cummings

Should Pete Rose be Eligible for the Hall of Fame?

Message posted on : 2011-04-10 - 12:00:00

With Pete Rose turning 70 this week, John Eradi of the Cincinnati Enquirer interviews several persons, including George Will, James Reston, Jr., and me, about whether Rose's lifetime ban should be lifted, which would make him eligible to be voted into the Hall of Fame. I'm generally of the view that he should be made eligible for a vote -- let the hall of fame voters have the choice -- and then he would almost certainly be rejected. I don't, however, see Baseball doing anything here -- Rose's book, My Prison without Bars, was probably the last straw.

Here is an excerpt:

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

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

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

But McCann doesn't think Rose will make it.

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

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

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

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

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

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

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

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

* * *
To read the rest, click here.

Posted By : Michael McCann

Panel Discussion: Ethics in Athlete Representation

Message posted on : 2011-04-09 - 14:17:00

On Friday, April 15th at 6:00 pm Suffolk Law School will be hosting a panel discussion entitled "Ethics in Athlete Representation” and will focus on the ethical dilemmas amateur athletes, agents, and Universities face in today's society.

If you're able to attend this free event, RSVP at this link.

The panel will feature:

Greg Bedard (Moderator): NFL Columnist for the Boston Globe.

Josh Luchs: Former NFL Agent who was the subject of the Sports Illustrated Cover Story in October 2010. “Confessions of a Former Agent” revealed the dishonest practices between Agents and soon-to-be professional athletes.

Darren Heitner: CEO of Dynasty Athlete Representation and Creator of SportsAgentBlog.com. Mr. Heitner just recently became a certified agent and his website is well respected amongst the Sport Law Community.

Michael “Mook” Williams: Current Consultant/Agent for National Sports Management and Certified NFLPA Agent.

Warren K. Zola: Professional Sports Counseling Panel Chair at Boston College. Mr. Zola's primary responsibility in this job is assisting Boston College student-athletes in their transition from college to the professional ranks.

Posted By : Warren K. Zola

New Sports Illustrated Column: Closing Arguments in Barry Bonds Trial

Message posted on : 2011-04-07 - 09:08:00

Later today, closing arguments will take place in USA v. Barry Bonds. I preview the arguments and what to expect from the jury for SI. Here's an excerpt:

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.

To read the rest, click here.

Posted By : Michael McCann

Catching up with Links

Message posted on : 2011-04-06 - 00:01:00

* Dodgers Ownership Divorce, Fox TV Contract, and Frank McCourt Suing Major League Baseball?
Bill Shaikin of the Los Angeles Times discusses how Frank McCourt could sue Major League Baseball and commissioner Bud Selig if Selig rejects a TV deal between the Dodgers and Fox. The prospective TV deal between the Dodgers and Fox would potentially end the thorny divorce proceedings between Frank and Jamie McCourt, as both would get a substantial amount of money in the deal.

But Selig allegedly wants McCourt to sell the team and may reject the TV deal. That could lead to McCourt suing MLB. As I discuss in the story, I don't think the lawsuit would succeed - in the franchise agreement between an owner and MLB, the owner contractually agrees to not sue MLB. However, if a court found that Selig was somehow arbitrary and capricious in rejecting the TV deal, perhaps there would be some running ground with the lawsuit. Click here to read the story.

* Is the NFL Lockout comparable to the NHL Lockout? Not really.
John Glennon of The Tennessean explains why the NFL's decision to impose a lockout is very different from NHL's decision to do so in 2004. Here's an excerpt: " The NHL appeared to be moving toward financial crisis prior to its lockout, as a majority of the teams — especially those in smaller markets such as Nashville — were losing money. NHL salaries had jumped dramatically in the preceding decade, as player costs increased from 56.6 percent of total league revenue in 1994 to 75.6 percent in 2003, according to John Vrooman, a sports economist at Vanderbilt University.There was no salary cap in place at the time. . . " Click here for the story.

* Will a Connecticut bill that requires colleges and universities to more fully close terms of athletic scholarships pass?
Dan Fitzgerald explores this topic over on Connecticut Sports Law Blog. Click here for the story.

Bonus link from Dan: Should the Hartford Whalers return to the NHL? As a Bruins fan growing up, I recall some great match-ups against Kevin Dineen, Ron Francis and others on the Whale. Would love to see the Whalers return and more NHL hockey for New England.

* File and Trial strategy for Pre-Arbitration players
Darren Heitner of Sports Agent Blog explores that strategy for MLB teams in the Rays signing Wade Davis.

* What does the Defense need to do in Barry Bonds trial?
Paul Elias of the Associated Press explains what needs to be done -- namely, figure out how to rebut Kathy Hoskins's damaging testimony. Click here for the story.

* CNN previews tomorrow's big NFL hearing

* Coverage of Harvard Law School Sports Law Symposium and Sonny Vaccaro's Keynote Address
I was honored to participate in last Friday's outstanding symposium.

If you would like to watch Sonny Vaccaro's keynote address in its entirety, click here (the link also takes you to an excellent story by Lewis Rice on Vaccaro's address).

For a story recapping the entire day, click here.

* Sports Law Panel at New York University School of Law on Wednesday, April 13
From Bird to Brady: Collective Bargaining in American Sports

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

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

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

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

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

MODERATOR
Jack Ford, CBS Legal Analyst

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

* Sports Law Panel at Nationals Park in Washington D.C. on Monday, May 2
Valuing Professional Sports Franchises: An Inside View of the Purchase and Sale Process Time:

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

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

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

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

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

Location
Nationals Park
1500 South Capital Street, SE, Navy Yard Metro
Conference Center Room #6
Washington DC 20003
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.
Update: from Elliot Solop of The Sports Tomato:
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

Posted By : Michael McCann

More on Brady et al. v. NFL

Message posted on : 2011-04-05 - 12:13:00

For those looking for more on the NFL lockout litigation, to add to Mike's insightful column, I've done a second Q & A with the Scout.Com Orange and Brown Report.
Posted By : Geoffrey Rapp

New Sports Illustrated Column on Tom Brady v. NFL: What to Expect

Message posted on : 2011-04-04 - 13:15:00

I have new, a nearly 4,000 word, 12-point column on SI.com on what to expect in Wednesday's preliminary injunction hearing in Tom Brady v. NFL and how the case will impact NFL football.

Here is point 9:

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

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

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

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

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

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

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

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

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

To read the other 11 points, click here.

Posted By : Michael McCann

Thoughts on the Duke lacrosse decisions--Substance

Message posted on : 2011-04-04 - 00:30:00

Upon actually reading the opinions in Evans (the indicted players) and Carrington (the unindicted players), it appears (contrary to what news reports and self-interested bloggers suggested) that the indicted players kept most of their case, while the unindicted players have much less left in theirs. Still, there is something left in both cases, particularly in their constitutional claims.

By the way, the opinions were released just over five years to the day of the team party, the false charges, and the early steps in this mess. And just to make the timing of things really strange, Crystal Mangum, the exotic dancer whose allegations really started it all, was arrested early Sunday morning in connection with the stabbing of an unidentified man (believed to be her boyfriend).


1) In both cases, the court denied dismissal of Fourth Amendment claims based on the intentional or reckless suppression and withholding of evidence and the fabrication or manufacture of false evidence for use in pretrial proceedings (magistrate proceedings producing warrants and grand jury) resulting in a search or seizure--the indictment and arrest of Evans, Finnerty and Seligmann; the photographing and DNA testing of the unindicted players; and the issuance of various warrants. As to the indicted players, the court further predicted that the Fourth Circuit would recognize a Fourth Amendment claim by a person arrested pursuant to a process (including a grand jury indictment) that lacked probable cause, where officials intentionally or recklessly lied or hid facts or fabriacted the evidence used in that process. In addition, the court recognized overlapping Fourteenth Amendment claims for the same conduct (acknowledging the gray area and uncertainty in which various constitutional rights and liberties interact).

The problem I had seen with the Fourth Amendment claims was that the indicted players never went to trial and the unindicted players never were involved in any formal processes. But this potentially meant that police and prosecutors could fabricate or withhold evidence at will, as long as the material never was used in any formal proceeding. (Or, at the very least, such a claim would have had to run through catch-all substantive due process and City of Sacramento v. Lewis's shocks-the-conscience test). But if such a claim can stand as to any deprivation of liberty at any stage of the criminal process, it may have some legs. It also may go along way to allowing § 1983 to provide some check on abuses within the criminal-justice process.

2) The court also denied dismissal of Fourteenth Amendment claims by both sets of plaintiffs based on the various false and incriminating media statements by Nifong and the police. This again was a claim that I believed lacked merit, because the making of the statements did not violate any right beyond the players' reputation and the stigma associated with loss of reputation--which does not violate the Fourteenth Amendment under Paul v. Davis. But the court adopted (from other circuits) the "stigma-plus" theory of the Fourteenth Amendment, under which the Fourteenth Amendment is violated by statements that impose a stigma in connection with unlawful arrests, searches, or seizures that violate the Fourth (or, I suppose, the Fourteenth) Amendments.

3) The court rejected in both cases allegations that Duke or its top administrators was a state actor as to the constitutional claims. The only constitutional claim against a Duke person that survived (shockingly) were the claims against Tara Levicy, the ER nurse who examined Crystal Mangum and told officers that Mangum had suffered injuries "consistent with" sexual assault, which lead to the warrants and other investigations. The court accepted that these allegations sufficiently alleged a conspiracy and joint action between Levicy and the police, in part because the officers had tried to shift the blame to Levicy.

This one seems wrong to me, at least as alleged. Conspiracy as a test for state action usually requires far more conscious agreement to engage in obviously unlawful conduct. Levicy is alleged to have given the police inaccurate information about the rape-kit exam, information she was neither qualified nor authorized to provide. There are no allegations that she knew this information was wrong or that she did this intended to help the police frame the players. It thus seems a stretch to say that her conduct in speaking with and cooperating with the officers (however much in error) is atrributable to the state. I also thought it odd that the court pointed to the officers' attempts to blame Levicy as somehow relevant to whether she is a state actor.

By contrast, the court seems on stronger footing in the indicted players' case in finding thet DNA Security, Inc. (DSI) and its president and lab director were state actors, where they explicitly agreed with Nifong not to fully disclose information from the DNA tests, conduct that is facially and obviously wrongful.

4) The court rejected defenses of prosecutorial immunity by Nifong and his chief investigator and of qualfiied immunity by all public officials. Prosecutorial immunity was not in play because the conduct at issue was investigative, involving the suppression and manufacture of evidence during an investigation, rather than anything as prosecutorial advocate for the state. Qualified immunity was denied because the Fourth and Fourteenth Amendment rights at issue were clearly established.

The prosecutorial immunity decision seems right, since most of Nifong's misconduct involved his leadership of the investigation in the case, apart from anything that happened in judicial proceedings.

The qualified immunity decision is weaker, I think. The court was very cursory in its analysis, usually simply declaring that the right at issue was clearly established without explaining how it reached that conclusion or analyzing the state of the law to show that the right was clearly established. For example, the court held that the Fourteenth Amendment liberty from false government statements was clearly established, even though the Fourth Circuit never had adopted the stigma-plus theory. Similarly, the court was explicitly predictive in stating its view that "the Fourth Circuit would recognize a potential § 1983 claim for violation of the Fourth Amendment when an individual is arrested pursuant to legal process that was not supported by probable cause." The court used similarly predictive language about a claim based on an official's intentional or reckless fabrication of evidence to present before a magistrate (in seeking a warrant) or a grand jury (in seeking an indictment). But predicting that the Fourth Circuit would recognize such a claim is not the same as saying the Court has recognized such a claim and the latter is necessary to say a right has been clearly established. And the court never tried to classify these claims as "so obviously violative that analogous cases are not required"--although if there is such a claim, suppressing/fabricating evidence would seem to fit.

It will be interesting to see what the officer defednants do next. Denial of qualified immuniy is immediately appealable, at least where the denial is based on the purely legal question of whether a right was clearly established. So the government defendants could preempt much of discovery, at least for now (in the face of the crowing of plaintiffs' counsel and PR team in both cases about how they are going to wade hard into discovery) and at least as to the constitutional claims by seeking immediate review as to the legal issue of clearly established. On the other hand, the court took great pains to make clear that it was taking only a preliminary look at the qualified immunity issue and that it fully expected to take another, closer look on subsequent summary judgment motions.

5) The unindicted players brought a number of tort and contract claims against Duke, Duke President Richard Brodhead, a university vice president, and the dean of students, based on interactions the players immediately after the rape charges came out. The upshot of all the claims is that Duke and the administrators sold the players old--they tried to get the players to talk to them in detail about the events; disclosed details of purportedly confidential meetings to the police and DA; tried to strong-arm the players into talking with them and not seeking support from parents or outside counsel; failed to support the players publicly and in fact undermined them by canceling the season and firing Coach Mike Pressler; and failed to protect the players from harassment and criticism.

Of these, the one that survived dismissal was a claim for constructive fraud, but based only on the narrow theory that university officials created a confidential relationship with the players by encouraging them to talk openly with university officials once the controversy broke and by trying to close them off from outside assistance from their parents or non-university counsel. The court rejected broader theories of a general special or fiduciary relationship between a university and its students or its student-athletes or of a general duty to protect its students/student-athletes from criticism by other students or faculty. The court also rejected the theory that the anti-harassment policies in the student handbook create a contractual obligation between the university and its students.

All in all, a mixed bag. The players are declaring victory here and it is somewhat deserved--not-insignfiicant portions of both cases live another day, although they may run into a new roadblock at summary judgment. In fact, even while denying dismissal of numerous claims, the court used language suggesting his view that this analysis was very temporary and preliminary, that the players continued to beat a weighty burden (with even stronger hints that he questioned whether the unindicted players could show damages), and that most of these legal and factual issues would be revisited, probably more rigorously and strictly, at summary judgment.

Posted By : Howard Wasserman

Sports Law Blog Sparring Session Round 2

Message posted on : 2011-04-03 - 22:30:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


Posted By : Paul Stuart Haberman

Duke lacrosse lawsuits going forward, at least in part

Message posted on : 2011-04-01 - 15:49:00

Judge James Beaty of the United States District Court for the Middle District of North Carolina has denied, at least in part, the motions to dismiss in Evans v. City of Durham, the action by the three indicted Duke lacrosse players (they previously settled with Duke University) and the motions for summary judgment in Carrington v. Duke University, the actions by the 39 unindicted lacrosse players.

This is a shock, I must admit. These motions have been pending for almost two years now. And I--and Sam Kamin, who wrote a terrific essay on the constitutional claims for my book on the case--really believed that at least the constitutional claims were non-starters.

I will have more to say once I have a chance to read the lengthy opinions.

Posted By : Howard Wasserman

Happy April Fool's Day

Message posted on : 2011-04-01 - 15:44:00

Since it's April 1, a number of hoaxes have emerged concening sports. None perhaps compares to the great Siddartha Finch hoax of 1985, which is still a subject of conversation today. Still, for your amusement only, some of today's hoaxlines:
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

Posted By : Geoffrey Rapp

Call Me Ishmael

Message posted on : 2011-04-01 - 13:00:00

As I keep an eye and ear toward that Great American Sports Law Extravaganza known as The United States of America v. Barry Bonds, I happen to also be reading that Great American Novel Moby Dick. Their similarities are remarkable.

Bonds, the all-time greatest in that most American of all sports, is that Great White Whale, larger than life, mysterious, unknowable, “all that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy . . . visibly personified, and made practically assailable.”

Jeff Novitzky, of course is Ahab. He has pursued Bonds for seven long years. The quest began with the former IRS agent trolling in the trash bins of BALCO, looking for scraps of paper to make his case. Ultimately, his mates at the prosecutor's office impaneled a grand jury at which Barry Bonds was called to testify and swore he did not know what BALCO products his trainer Greg Anderson had given him and that, to his recollection, no one other than a doctor had ever injected him with anything. Of the 42 counts in the indictment returned against BALCO's owner, Victor Conte, 40 were dismissed. In the end, Conte was convicted of money laundering about $400 and spent three months in a federal summer camp. Yet Novitzky and the prosecutors carried on, consumed and obsessed with Bonds. “They piled upon him the sum of all the general rage and hate felt from Adam down. . .” Towards Bonds they “roll, thou all-destroying but unconquering . . . to the last they grapple with thee; from hell's heart they stab at thee; for hate's sake they spit their last breath at thee,” and waste millions of tax-payer dollars.

What the judge and jury, presumably nay all San Francisco Giant fans, will make of this mad pursuit is not yet known. “Who's to doom, when the judge himself is dragged to the bar?”

Posted By : Alan C. Milstein

5 Thoughts on David Ferrer's Infamous Lob and Losing One's Temper over a Crying Baby

Message posted on : 2011-04-01 - 09:00:00

28-year-old Spanish tennis player David Ferrer, who is ranked sixth on the ATP World Tour, became frustrated at a crying baby during the quarterfinals of the Sony Ericcson Open on Wednesday. Crowds in tennis matches are supposed to be quiet during play, but obviously -- and as we know from flying on air planes, eating out at restaurants, or attending religious services, among many other activities where we may encounter crying babies -- a baby doesn't have the same ability as an adult to "choose" to be quiet. And while we may become annoyed with a crying baby in a public setting -- or at least annoyed with the baby's parent/guardian -- we are generally supposed to accept the crying and not complain. Otherwise, we might look like jerks.

And yet during a tennis match, a crying baby is perhaps even more distracting than on a flight or at restaurant. Matches are played before thousands of people who become very quiet during match play. A baby crying loudly in this setting will stand out and likely annoy players on the court.

And annoyed is what happened to Ferrer on Wednesday. After he lost his serve to American Mardy Fish midway through the second set in the midst of the crying baby, Ferrer let his temper get to him and directed a forehand lob toward the crying baby:

Thankfully, the lob did not come close to hitting the baby, who nonetheless became quiet after the lob. Ferrer would go on to lose the match, 7-5, 6-2. Ferrer later blamed "indigestion" on the loss and did not address the lob.

I have 5 thoughts:

1) Tort Implications. If Ferrer's lob had hit the baby, he probably would have committed the tort of battery: intentionally causing harmful contact on another. If the man holding the baby was the baby's father (as has been reported), he may have also had a claim for negligent infliction of emotional distress because he would have witnessed the injury of his child and perhaps suffered emotional shock as a result. Even without hitting the baby, Ferrer may have committed assault - intentionally causing reasonable apprehension of imminent harm -- if the lob had come close to hitting the baby (assuming the baby knew what was going on).

2) Probably no Assumption of Risk. I don't think attendees of tennis matches assume the risk of tennis players intentionally hitting balls at them. Also, while tickets for admission to tennis matches probably contain various waivers of liability for the stadium operator -- just like tickets to baseball games contain waivers of liability if a fan is hit by a foul ball -- I'm not sure if those waivers extend to the players. And even if they do, I doubt they cover intentional torts committed by those players, especially since good players should be able to block out the noise.

3) Unlike players employed by NFL/NBA/MLB/NHL teams, Ferrer's independent contractor status likely means he cannot be punished by the ATP Tour. Think about it: if Ferrer had been an NFL player who intentionally threw an object at a fan, commissioner Roger Goodell would be empowered to sanction him under the NFL's Personal Conduct Policy, as any behavior that the commissioner finds detrimental to the league is subject to discipline. And if the commissioner declined to act, the NFL team employing Ferrer could have take action against him.

But the ATP Tour doesn't work in the same way as the NFL or any pro league. It's an association of tennis players who are independent contractors and the individual tournaments they play in, as opposed to a league of competing teams and the players employed by those teams (see previous coverage on our blog regarding structure of ATP).

Still, individual tennis tournaments could decide to prohibit a player from playing in their tournaments. To illustrate, last year organizers of the Swedish Open thought about, but ultimately declined to prohibit two players who were arrested for soliciting prostitutes in Sweden. Given that no one was injured by Ferrer, it seems unlikely that any tournament would boycott Ferrer.

4) Parents bringing infants to tennis matches is not a good idea. A person attending a tennis match should know that people are expected to be quiet during match play. Bringing an infant to the match doesn't seem like a particularly good idea. Maybe it was not possible to get a baby-sitter, but it seems like the parent here was asking for trouble -- especially when he did not take his baby to another area of the stadium after the baby cried loudly, apparently for most of the match.

5) Why didn't an official from the stadium ask the father to go inside with his child for a bit? Sure, it's an awkward thing to ask of a parent, but if the baby was truly disrupting play, why not just politely ask the father to go inside until the baby stops crying? Refund the father's ticket if you have to. It seems like taking no action only made the situation here worse.

Posted By : Michael McCann

New Sports Illustrated Column on Barry Bonds Trial: Has Bonds Already Won?

Message posted on : 2011-04-01 - 00:01:00

With the prosecution's case-in-chief nearly over, I have a new column for SI -- in it, I take a look at where things stand in the Bonds trial and what to expect going forward. Bonds should feel good about 4 of the 5 counts, but he's still very vulnerable to a conviction on Count Two. Here are excerpts from the column:

* * *

What worked for the prosecution?

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

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

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

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

* * *

What worked for the defense?

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

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

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

* * *

What to expect next week?

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

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

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

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

* * *
To read the rest, click here.

Posted By : Michael McCann

ESPN Sues Conference USA

Message posted on : 2011-03-31 - 15:30:00

ESPN is reporting that it has filed a lawsuit against Conference USA, accusing the conference of breach of contract. Specifically, ESPN alleges that the conference breached a 2005 agreement by failing to provide the network with an opportunity to match the $42 million television broadcast agreement that C-USA recently signed with the Fox network. ESPN is requesting either $21 million in damages, or specific performance of an alleged contract extension it asserts the parties had reached in principle prior to C-USA signing its deal with Fox. Meanwhile, C-USA denies that it breached any agreement with ESPN.

Posted By : Nathaniel Grow

Sports Law Blog on the Rise

Message posted on : 2011-03-31 - 08:31:00

Over on TaxProf Blog, Paul Caron has his annual traffic rankings for law professor blogs, and Sports Law Blog is #22 among them in terms of visitors and #23 in terms of page views. His numbers also show a 9% increase in visitors to our blog, and an 8% increase in page views on our blog, from 2009 to 2010. As always, we appreciate you checking our blog out and seeing what we have to say.
Posted By : Michael McCann

New Sports Illustrated Video on Eller v. NFL

Message posted on : 2011-03-30 - 15:09:00

I was interviewed by Maggie Gray of Sports Illustrated/CNN video to discuss a new lawsuit filed by Carl Eller, Priest Holmes and others on behalf of retired and prospective NFL players. Their core argument is that the NFL lockout and various NFL restrictions on trade, including the draft, are illegal under federal antitrust law -- an argument also made in Brady v. NFL -- but unlike current NFL players, retired and prospective players are not members of the NFLPA bargaining unit. These players believe they too will be harmed by the lockout (for instance, various health-related programs for retired NFL players are funded in part by fines imposed on current players; with no football, no fines will be levied, and retired players' programs will lose funding). In response, the NFL will likely argue that while they are not bargaining members of the NFLPA, the NFLPA nonetheless represents their interests.
Posted By : Michael McCann

My interview for PBS Frontline on O'Bannon v. NCAA

Message posted on : 2011-03-29 - 21:30:00

Here's a link to a transcript of my interview with Lloyd Bergman of PBS. The transcript is admittedly long - the interview was for over an hour and we covered a TON of ground for PBS' March Madness and Money feature.

Here's an excerpt from the transcript:

PBS: How significant is this case?

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

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


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

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

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


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

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

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

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

* * *

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

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

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

* * *

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

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

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

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

PBS: So it's an antitrust case.

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

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

* * *

To read the rest, click here.

Posted By : Michael McCann

Two Great Nights of Sports Law Related TV

Message posted on : 2011-03-29 - 16:29:00

1) Tonight at 9 p.m., PBS Frontline will air a feature on "Money and March Madness". It will primarily be about the O'Bannon v. NCAA lawsuit and will include interviews with Ed O'Bannon and Sonny Vaccaro, who last Friday delivered an outstanding keynote address at Harvard Law School's sports law symposium and who was recently the subject of a very interesting piece in the New York Times.

2) Tomorrow night at 10 p.m. HBO Real Sports will air a 1-hour feature on College Sports in America (Part I can be seen here; Part II here). Here is more info on the HBO feature:

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

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

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


Posted By : Michael McCann

New sports law scholarship

Message posted on : 2011-03-29 - 09:39:00

Recently published scholarship includes:

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

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

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

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

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)

Posted By : Geoffrey Rapp

MIT Sloan Sports Analytics Panel on "The Coming War: Sports Labor Relations"

Message posted on : 2011-03-27 - 09:00:00

Earlier, this month I joined several panelists -- Russ Granik (former NBA Deputy Commissioner), Tom Penn (ESPN analyst and former Blazers Assistant GM), George Postolos (former President and CEO of the Rockets), and Andrew Zimbalist (noted sports economist at Smith College) - at the 2011 MIT Sloan Sports Analytics conference to discuss labor wars in the NBA and NFL. The panel was moderated by Jackie MacMullan, an ESPN columnist and author of several books, including a forthcoming one on Shaquille O'Neal.

Here is the video of our panel discussion:

MIT Tech TV

Posted By : Michael McCann

Dr. John Carlos to Speak at the West Virginia University College of Law

Message posted on : 2011-03-25 - 21:00:00

Dr. John Carlos, who along with Olympic teammate Tommie Smith were criticized for protesting on the medal stand at the 1968 Mexico City Games, will discuss the evolving role of African American athletes in American culture and politics in a speech sponsored by the West Virginia University College of Law Sports and Entertainment Law Society.

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

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

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


Posted By : dre cummings

Top Rank v. Golden Boy -- the Sequel

Message posted on : 2011-03-24 - 13:00:00

Although legal disputes involving boxing do not occupy a large portion of my class time, there have been cases, notably involving breaches of contracts among boxers and promoters, that make for interesting reading and discussion. I use one or two to prove breach, damages and remedies. One of my favorites is Lewis v. Rahman, a courtroom brawl (if you will) that involved heavyweights Lennox Lewis and Hasim Rahman, where the court enjoin Rahman from engaging in any other fights over a 18-month period under he fight Lewis for the championship. For those teaching, it merits discussion of the outer limits of a "negative" injunction.

Here's another potential case. One of my MBA students pointed to potential controversy involving the promoters Top Rank (of Bob Arum fame) and Golden Boy Promotions (founded by Oscar de la Hoya about 10 year ago). The dispute involves the signing of highly-touted Philippine bantamweight champion Nonito Donaire by Golden Boy this week. Reports state that Golden Boy offered Donaire a bigger purse for an upcoming fight for the WBA bantamweight championship. However, Top Rank claimed he is presently under contract and is considering legal action.

According to the article, the issue involves the expiration date of Donaire's present contract with Top Rank. Signed in June 2008, it would normally expires this June, but Top Rank is claiming that the expiration date tolled due to two "medical suspensions" of six and four months of Donaire during the contract period. Top Rank was quoted as saying that such a tolling provision was in Donaire's contract.

The stakes are high because Donaire already won the bantamweight championship of two of boxing's myriad governing bodies last month, the World Boxing Council and World Boxing Organization, raising his profile and market value. Yet, the case is reminiscent of a similar dispute about five years between the same parties of the fate of another Philippine boxer, Manny Pacquiao. That case was settled by arbitration in 2007, although there is subsequent litigation over claims that Top Rank underpaid Pacquiao.

The Donaire - Top Rank dispute will also likely go to arbitration. Issues would involve the meaning of a "medical suspension," whether Donaire's injury constituted such a suspension (difficult to prove to the contrary since he was suspended by one or more boxing bodies) and what remedy or remedies may apply if the arbitrator concludes a breach occurred.

Since both contracts are promising to arrange the same bout, injunction is not a practical remedy. But, just to hypothesize, what is the Golden Boy deal offered a different fight in June? Would Donaire be determined "unique" to stop him from boxing? My guess would be yes -- as a boxing champion and a potential moneymaker.

[Thanks to Hermogenes Perez for alerting me to the case]

Posted By : Mark Conrad

2011 Southwestern Law School Sports Law Symposium

Message posted on : 2011-03-24 - 10:21:00

Darren Heitner has the story over on Sports Agent Blog (one of my favorite blogs, by the way) on this excellent upcoming symposium at Southewestern Law School in Los Angeles. Sports Law Blog contributor Warren Zola is one of the panelists and there are many other great panelists, too:

* * *

What: Business of Amateur Sports Symposium at Southwestern Law School

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.


Posted By : Michael McCann

Rutgers-Camden School of Law Sports Law Panel

Message posted on : 2011-03-24 - 00:01:00

Next Monday, March 28, the Rutgers School of Law Camden Sports & Entertainment Law Society will be hosting a sports law panel with an NFL-focus:
Join us for an evening with a distinguished group of sports law industry professionals.

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

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

Panelists include:

George Atallah
NFL Players Association Assistant Executive Director of External Affairs

Domonique Foxworth
Baltimore Ravens, NFL Players Association Executive Committee Member

James Ivler
Registered NFL Agent, Sportstars, Inc.

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

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

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

Posted By : Michael McCann

On Creeping Underwear, Drooping Pants, and the NFL Personal Conduct Policy during the Lockout

Message posted on : 2011-03-23 - 09:30:00

Dress codes often generate controversy. Consider the debate following the NBA adopting an off-court dress code 5 years ago. Dress codes attract critique because they normally limit attire choices to those considered mainstream, while disallowing dissenting styles, typically on grounds that unconventional attire can be "unprofessional" or "inappropriate." From time-to-time, dress codes have also been viewed as insensitive to various race, ethnic, gender, and religious concerns. Nonetheless, dress codes are usually legal, and that is true of those imposed by malls, which want to ensure a positive shopping experience for customers.

Would a rule that doesn't let a mall patron show his/her underwear be a rule that you support or find offensive? Count me in the support category.

Dallas Cowboys wide receiver Dez Bryant may not agree. He learned about such a rule this past weekend when he and three friends were kicked out of NorthPark Center, an upscale Dallas shopping mall.

Their mistake? Wearing "drooping pants", which apparently is another description of sagging pants, the effect of which is to expose one's underwear, a violation of the mall dress code. To compound Bryant's problem, he got into an argument with police officers who were working off-duty as security officers at the mall and was issued a criminal trespass warning:
According to the official police report, Bryant and three friends were stopped by the uniformed, off-duty officers working security shortly before 8 p.m. at the popular shopping center after they were observed "wearing their pants halfway down their hips exposing their underwear."

The police asked the men to pull their pants up.

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

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

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

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

To read the Dallas Police Report, click here. Bryant, for his part, claims his pants were actually up and that he was respectful to the officers.

While the facts of the incident are in question, the incident is clearly embarrassing for Bryant and the Cowboys, and maybe the NFL, too. And under the NFL's Personal Conduct Policy, commissioner Roger Goodell can issue a sanction for any behavior that he deems detrimental to the league's image.

But is the league's personal conduct policy still in effect during the lockout? The league says yes and that it will assign penalties for misbehavior during the lockout after the lockout ends. The NFLPA has chosen not to opine on whether the policy is still in effect.

I'm not sure the league is right. During a lockout, a player is completely separated from his employment with the team and the league as a whole - and, unlike with a player strike, the only way for that separation to end is for the league to end the lockout. The player can sign with a team in another pro football league or take on some other employment; he's not getting paid any salary or receiving any benefits from his NFL team, so why should he be obligated to follow the NFL's personal conduct policy?

Posted By : Michael McCann

How I got into sports law and the NFL Lockout

Message posted on : 2011-03-22 - 14:47:00

Jared Pendak of the Valley News (serving Hanover New Hampshire and surrounding community) interviews me about how I got into sports law and also about the NFL lockout. Here's an excerpt:

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

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

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

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

To read the rest, click here.

Posted By : Michael McCann

Legality of NFL Lockout

Message posted on : 2011-03-22 - 11:27:00



Posted By : Michael McCann

Barry Bonds Trial Begins

Message posted on : 2011-03-21 - 10:53:00

Jury selection in the Barry Bonds perjury trial takes place today, with opening statements by the prosecution and defense set for tomorrow. I discuss the trial with NPR today on the Morning Edition program.

Update: I have a new column for Sports Illustrated laying out the prosecution's case against Bonds. Please also check out George Dohrmann' SI column laying out the defense.

Update 2: I have an interview with Maggie Gray of Sports Illustrated Video to discuss the trial.

Posted By : Michael McCann

Sports Law Blog Sparring Session Round I

Message posted on : 2011-03-20 - 11:00:00

This is the first post in a series of posts that will review of legal, regulatory, and contractual Issues in Boxing and MMA from the past several months. These posts are largely taken from a longer article I wrote for 8 Count News.


Could Tyson Get Crapped on for Keeping Pigeons in New York?

In honor of the debut of Animal Planet's “Taking on Tyson,” I took a moment to research whether it is illegal to raise pigeons in New York, Mike Tyson's home state. The answer, in short, is no, unless he does so without a permit or in contravention of local law, or the government or administrative body in question finds the subject pigeon coop to be a “menace to public health” or a “public nuisance.” Pigeons are also not permitted to be taken “in a manner which will endanger other animal life, persons or property.” As far as other legal rights and issues facing “Taking on Tyson,” PETA has, of course, exercised its rights under the First Amendment to oppose the show since they believe that Tyson's housing of pigeons and use of them for sport constitutes cruelty to animals. This author, for one, would not want to be the person to throw animal's blood on Tyson in any protest.


Not Everything is Coming Up Sweet for “Kid Cinnamon” This Year


He might have laid waste to Matthew (Magic) Hatton this past weekend, but there is one opponent on the horizon that may score a knockout over surging junior middleweight contender Saul (Canelo) Alvarez: All- Star Boxing. Back in late January, All-Star Boxing filed a lawsuit against Canelo (Spanish for “cinnamon tree”) and his promoter, Golden Boy Promotions, in Florida alleging breach of contract as to Alvarez and tortious interference in contractual relations against Golden Boy. Here's assuming that Golden Boy will find some sugar to sprinkle on All-Star Boxing (or bury it in dispositive motion papers) to make sure that Canelo will be free and clear to add a jolt of flavor to their events for many years to come.


Daniel Podiatrist de Leon?


The co-main event of Alvarez-Hatton featured one of the more novel corner instructions that the author can recall: step on his foot. As translated by HBO, that is exactly what Daniel Ponce de Leon was told to do early in his mysteriously unsuccessful bout against undefeated super featherweight prospect Adrien (The Problem) Broner. And that is exactly what Ponce de Leon did, quite conspicuously, over the next several rounds. Should the referee have admonished Ponce de Leon, or have taken away a point for his repeatedly stepping on, or trying to step on, Broner's foot? Under New York law at least, deliberately stepping on your opponent's feet is not listed as either a major or a minor foul. Stomp on then, young warriors!


Michigan Leaves No Room for Mishegas in its Enforcement of Its MMA Regulations

Michigan, which began regulating mixed martial arts last year, made headlines back in late January when it was reported that it has now filed its inaugural complaint for violations of its new regulations. The respondent to this complaint was Stephen George Daher, a licensed timekeeper in the employ of the Michigan Unarmed Combat Commission, who was accused of not timely stopping the first round of the middleweight bout between Maiquel Falcao and Gerald Harris during UFC 123. The author will keep an eye on this matter to see if Michigan gets to successfully send a message to stay in strict compliance with its new rules.

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

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


Posted By : Paul Stuart Haberman

Haberman Post 2

Message posted on : 2011-03-20 - 10:53:00

Santore Gets Frank with Norwood Over Rabbit Punch

Freddie Norwood, no stranger to unusual refereeing, lost two points as the result of a seemingly intentional rabbit punch in the ninth round of his bout with junior welterweight contender “Sugar” Ray Narh on ESPN2 Friday Night Fights this past week. Why two points? Well, as referee Frank Santore, Jr. barked at him, because he was a veteran and should have known better. Should veterans be held to a higher standard in boxing? Maybe so, especially as a few of them, including Joel Casamayor, Evander Holyfield, and Bernard Hopkins, are recognized as some of the best subtle employers of foul tactics in the game. Regardless, the two point deduction was the latest chapter in Norwood's suspect treatment by referees. One of the most awful stoppages the author ever recalls seeing in the history of boxing is Derrick (Smoke) Gainer's 11th round TKO of Norwood for the WBA Featherweight Title on September 9, 2000. What made the stoppage so awful? Referee Paul Sita was holding Norwood from behind at some point during the final sequence, rendering him unable to defend himself or punch back at Gainer.

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

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

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

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


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.


Posted By : Michael McCann

Ranking college sports loyalties

Message posted on : 2011-03-18 - 17:25:00

My Prawfs co-blawger Matt Bodie offers a ranking of college sports loyalties--covering everything from undergrad institution to law school to current employer to spouse's teams to hometown team. Offer your comments here or at Matt's post.
Posted By : Howard Wasserman

2011 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition

Message posted on : 2011-03-18 - 15:00:00

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

Finally, congratulations to the winners of this year's competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:

The Winner of the 2010 Competition was: Florida Coastal School of Law (Drew Parrish-Bennett and Dazi Lenoir Williams)

The Runner-Up: Loyola New Orleans (Matt Cutrer and Luke Larocca)

Semi-finalists: Southwestern School of Law and Emory Law School

The best brief was submitted by: University of Arizona College of Law.

Best Oralist: Sarah Gale-Barbantini (Wayne State University Law School)

2nd Best Oralist: Drew Parrish-Bennett (Florida Coastal School of Law)

3rd Best Oralist: Mark Ellinghouse (UC Davis School of Law)

Competitor of the Year: Drew Parrish-Bennett from Florida Coastal


Posted By : Gabe Feldman

2011 Yale Law School Panel on Sports and the Law: Current Issues

Message posted on : 2011-03-17 - 17:00:00

On Monday, April 4, from 6:30 to 8:00 p.m., the Yale Law School Sports and Entertainment Law Society will be hosting a panel on contemporary sports law issues. The panel will be open to the public.

Topics will include the NFL lockout, the possible NBA lockout, age and autonomy restrictions on professional athletes, digital media and the law, antitrust and sports, and many other topics.

Yale Law School

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

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


Moderator:

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


Panelists:

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

ERIC NYQUIST (NASCAR Vice President of Strategic Development)

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

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

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

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

Excellent work by Benjamin Aronson and Javier Zapata, the Yale Entertainment and Sports Law Association Co-Chairs, in putting this event together.

Posted By : Michael McCann

Sports Law Career Opportunity

Message posted on : 2011-03-17 - 12:00:00

The Oakland Athletics are currently looking to hire an assistant legal counsel with at least 4 years of experience in a corporate/transactional practice. For more information regarding the position, check out the job ad available here.

Posted By : Nathaniel Grow

Indiana Finds Fault in Death of Notre Dame Student Declan Sullivan

Message posted on : 2011-03-16 - 21:39:00

On Sports Illustrated Video I discuss the implications of yesterday's findings in the death of a Notre Dame student who was killed when the hydraulic lift he was on while taping a team football practice fell over in 53 mph winds.
Posted By : Michael McCann

Do fans appreciate taxes?

Message posted on : 2011-03-16 - 12:12:00

Via Paul Caron (TaxProf Blog and my source for all things tax-and-sports) comes the story of Bob Choate, a Houston Astros fan who last year won a year's supply of coupons to a Houston donut shop at Fan Appreciation Day and now is being taxed on more than $ 900 in "free" donuts.
Posted By : Howard Wasserman

New Jersey Sports Betting Lawsuit Dismissed

Message posted on : 2011-03-15 - 19:00:00

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

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

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

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

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

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


Posted By : Ryan M. Rodenberg

Another take on NBA Referee Bill Spooner's Twitter-based Defamation Lawsuit

Message posted on : 2011-03-15 - 17:00:00

Howard has a great post on Bill Spooner's defamation lawsuit against the Associated Press and AP reporter Jon Krawczynski. Zach Lowe of Sports Illustrated has also written about the lawsuit and I offered him my thoughts on it. To read Zach's SI article, click here.
Posted By : Michael McCann

NBA ref sues for defamation

Message posted on : 2011-03-15 - 14:30:00

NBA Ref Bill Spooner has filed a defamation action in federal court against the Associate Press and AP reporter Jon Krawczynski, based on a tweet that Krawczynski sent during a Timberwolves-Rockets game in January. Following a foul call on the Wolves, Wolves Coach Kurt Rambis disputed the call in a conversation with Spooner. According to the complaint, Spooner told Rambis he would review the call (on video) at halftime and get back to him about it. Rambis then said, "'that's fine, but how do I get those points back.'" Krawczynski later tweeted "Ref Bill Spooner told Rambis he'd "get it back" after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks." In the complaint, Spooner denies responding to Rambis' comment or to making any make-up call. The complaint asks for damages and an injunction ordering the removal of the tweet and/or a retraction.

The key will be Spooner's status as a public figure. He spends four paragraphs obviously designed to establish himself as a non-public figure. This is important, because it seems to me the most likely explanation for the whole thing is that Krawczynski misheard the conversation between Spooner and Rambis, then speculated that a subsequent bad call was a make-up call. Which would be negligent, but not reckless. But it seems to me that within the confines of a story or comment about a basketball game and the officiating at a game, a referee should be a public figure. So he would have to show recklessness by Krawczysnki in order to recover.

There are some other procedurally strange allegations in the complaint. For example, the last paragraph "reserves" the right to amend the complaint, which is entirely unnecessary because FRCP 15 does that on its own. It also uses really strange language in alleging personal jurisdiction over Krawczynski, which should have been easy, since he lives in the forum state and thus is suable in his domicile.

Posted By : Howard Wasserman

College Football Pro Days

Message posted on : 2011-03-15 - 09:00:00

While much of the country watches the labor negotiations between the NFL and NFLPA (now the professional trade association) and figures that this will get resolved at some point before it impacts the season, it is having a direct impact on some pro prospects right now. Colleges typically host “Pro Days” which afford all of a school's players interested in pursuing a career in professional football—not just the NFL but the CFL, Arena League, etc.—an opportunity to display their skills in front of scouts.

Some of a school's stars may have already participated in the NFL Scouting Combine in Indianapolis in February, but for those who aren't as highly touted their school's Pro Day is their only real post-season tryout. The individuals who were at the NFL Combine may elect to run through specific drills again depending upon their performance previously; if a player ran a “slow” 40 yard sprint in Indianapolis, he would have the option of running this test again. It is not uncommon for an individual to skip certain tests in Indianapolis because of an injury and thereby elect to participate at their college's Pro Day.

So who is getting hurt? Well it now appears that because of the labor impasse the NFL will only allow those individuals who are eligible for the 2011 NFL draft to participate. However, often schools will allow their players, who for whatever reason were not selected in the previous year's draft, to return to campus and participate in Pro Day. If a player was injured, or made it to a training camp without being drafted and didn't make a roster, a school's Pro Day gives them one more chance to tryout in front of NFL scouts.

However, since these players were not drafted in previous years, through the NFL's eyes they are free agents. As such, contact is now forbidden and these players will be unable to participate in their school's Pro Day.

Posted By : Warren K. Zola

More NFL Lockout Links

Message posted on : 2011-03-15 - 08:00:00

More NFL links, adding to Mike's list from this morning:

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

Posted By : Geoffrey Rapp

Quick Legal Links on NFL Lockout and Labor Crisis

Message posted on : 2011-03-15 - 07:00:00

* Ashby Jones of the Wall Street Journal: Everything You Need to Know About the NFL Antitrust Lawsuit

* Tom Brady v. National Football League: The Complaint in PDF

* My interview with WEEI Boston on the NFL crisis

* Peter King of Sports Illustrated: Resolution Appears Closer than it Seems (I agree with Peter; I think a deal will get done before the 2011 season)

* Mike Sando of ESPN: a number of great pieces on the NFL labor crisis.

Posted By : Michael McCann

Rethinking the Role of Decertification in Sports Labor Disputes

Message posted on : 2011-03-14 - 19:30:00

One aspect of the recent decertification by the NFL Players' Association that I believe has (understandably) been somewhat overlooked is what the NFLPA's decision tells us about the role that the threat of decertification plays in labor disputes between sports leagues and players' unions generally. Up until now, the general scholarly consensus has been that players' unions are quite hesitant to decertify during a labor dispute given the potential rights they risk losing (such as previously negotiated insurance and pension benefits), and as a result decertification is only a weapon of last resort.

In the current NFL labor dispute, however, that wasn't the case. If anything, it appears that the union may actually have been eager to decertify, recognizing that decertification would place additional pressure on the NFL owners by allowing the players to assert a variety of antitrust claims against the league. Admittedly, some of the motivation for the NFLPA to decertify sooner rather than later may have come from a provision in the most recent collective bargaining agreement providing that if the union waited to decertify until after the CBA formally expired, then it could not file an antitrust suit against the league for a period of 6 months. Nevertheless, the speed with which the NFLPA was willing to decertify in this case runs counter to the conventional wisdom on such matters.

As a result, we may have to reconsider the role that the threat of decertification plays in labor disputes in the other sports leagues as well. For example, the NFLPA's recent decertification provides a possible roadmap for the upcoming CBA negotiations in the NBA, given that like the NFLPA, the NBPA is also represented by antitrust attorney Jeffrey Kessler.

Meanwhile, with respect to MLB, the NFLPA's decertification calls into question the general consensus regarding the significance of the Curt Flood Act of 1998, the legislation that partially repealed baseball's historic antitrust exemption in order to allow current MLB players to file antitrust suits against the league (for prior Sports Law Blog discussion of the Curt Flood Act, click here). At the time the Curt Flood Act was passed, most scholarly commentators wrote it off as largely irrelevant, given that after the Supreme Court's decision in Brown v. Pro-Football, Inc., MLB players must decertify their union before exercising their right to file an antitrust suit. However, as I've previously noted, MLB has had two remarkably amicable CBA negotiations following the passage of the CFA, in stark contrast to the league's previous 30 years of contentious labor disputes. Given the relative ease with which the NFLPA decided to decertify, one can argue that the threat of decertification by the MLBPA following the CFA may actually have had a much greater effect on baseball's labor relations than was widely expected at the time it was enacted.

Posted By : Nathaniel Grow

New Sports Illustrated Piece on NFL - NFLPA talks Collapsing, NFLPA Decertifiying, and What's Next

Message posted on : 2011-03-11 - 17:19:00

Unfortunately, the NFL - NFLPA negotiations have just ended in failure and the NFLPA filed for decertification minutes ago. The future for the two sides and NFL football is hazy, but on SI.com I offer one possible road map of what we might expect.
Posted By : Michael McCann

Should Zdeno Chara be Charged with a Crime?

Message posted on : 2011-03-11 - 10:30:00

If you haven't seen Boston Bruins defenseman and captain Zdeno Chara's hit on Montreal Canadian left wing Max Pacioretty from earlier this week in Montreal, here it is

Pacioretty, who was taken off the ice on a stretcher, suffered a fracture to the 4th cervical vertebra (which is in the middle of the neck) and a severe concussion. Doctors have said that there is no timetable for Pacioretty's return. Given the severity and location of his injuries, it seems likely that the 22-year-old Pacioretty will be out for quite a while and his career may be in jeopardy.

While Chara received a five-minute major penalty and a game misconduct, the NHL, after reviewing the incident, declined to impose an additional penalty. Here was NHL's vice president of operations, Mike Murphy, on the league's decision:
After a thorough review of the video, I can find no basis to impose supplemental discipline. This hit resulted from a play that evolved and then happened very quickly -- with both players skating in the same direction and with Chara attempting to angle his opponent into the boards. I could not find any evidence to suggest that, beyond this being a correct call for interference, that Chara targeted the head of his opponent, left his feet or delivered the check in any other manner that could be deemed to be dangerous.

This was a hockey play that resulted in an injury because of the player colliding with the stanchion and then the ice surface. In reviewing this play, I also took into consideration that Chara has not been involved in a supplemental discipline incident during his 13-year NHL career.
The league's decision to not impose an additional sanction on Chara has prompted sharp disagreement from one of its sponsors, Air Canada, which is threatening to pull its sponsorship of the league.

More of concern to Chara, the Montreal police are now investigating whether Chara committed criminal assault, which under Section 265 of the Canadian Criminal Code, refers to intentionally harming another person (so in theory, criminal assault happens all the time on NHL rinks).

Richard Weir of the Boston Herald interviews several persons for a story today on whether Chara should be charged with a crime. Here is an excerpt:

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

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

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

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

To expand on my comments, I do think there are some hockey hits/slashes that are so dangerous and intentional that they warrant criminal sanction. The slash by Marty McSolrey on Donald Brashear from back in 2000 is a good example.

But as I see it, Chara's hit seems awful not for its dangerousness or intent, but rather because of the unexpectedly awful injuries that resulted from it - almost like a egg-shell case.

I think if Chara can be prosecuted for what he did, then the NHL might have to change their rules on physical contact -- and maybe that would be a good thing, but that would have to be debated. We might also see NHL players, cognizant of legal consequences for inflicting physical contact on other players, adopting a less physical style of play, with less checking and less fighting.

Update: My research assistant Adam Zebryk makes a very good point: Could the Belle Centre's design have in any way contributed to Pacioretty's injury? All NHL rinks have the same ice surface dimensions - 200 feet long by 85 feet wide - but they vary in other ways, including the type of glass and curvature of glass. I have no idea if the glass type/curvature mattered here, but maybe it played a role as Pacioretty did crash into the glass.

Posted By : Michael McCann

Clock is ticking on NFL and NFLPA and Signs are Ominious

Message posted on : 2011-03-10 - 20:18:00

Things don't look good for the NFL and NFLPA with 28 hours to go till their deadline. They didn't even talk today, due to apparent misunderstandings about whether they were supposed to meet with federal mediator George Cohen. You would think they would approach these negotiations with a greater sense of urgency and would have found a way and time to bargain at some point today, but instead they apparently lost the day. Perhaps the gap between them is too far to bridge and they are resigned to the legal consequences that will follow.
Posted By : Michael McCann

Sports Lawyers Association Conference Program

Message posted on : 2011-03-10 - 10:00:00

The program for the 37th Annual Sports Lawyers Association ("SLA") conference at the Renaissance Hotel in Washington, DC is now posted. In addition to a number of interesting panels and breakout sessions, the SLA conference offers an ample amount of CLE credits for licensed/practicing attorneys. One panel that may be of particular note to Sports Law Blog readers is the "town hall debate" moderated by Gabe Feldman pertaining to the legality of the BCS. For related coverage on the legality of the BCS, check out the following two law review articles by our Sports Law Blog colleagues:

Posted By : Ryan M. Rodenberg

New Sports Illustrated video on Evidence implicating Barry Bonds

Message posted on : 2011-03-09 - 14:00:00

Do rather significant body changes experienced by Barry Bonds over the years prove that he used steroids? Is the testimony of non-medical people, like Bonds's former personal shopper, about medicines Bonds was using less persuasive because they lack scientific background or more persuasive because they speak in plain-spoken language? I talk about those and other issues with Maggie Gray of Sports Illustrated Video.
Posted By : Michael McCann

Harvard Law School -- 2011 Sports Law Symposium

Message posted on : 2011-03-09 - 09:30:00


Harvard's Committee on Sports and Entertainment Law, with the leadership of Peter Carfagna, will host its 2011 Sports Law Symposium on Friday, March 25th on the campus of Harvard Law School.

The symposium, free and open to the public, will focus on the legal and business issues surrounding intercollegiate athletics, and the overarching theme of the symposium is “The Changing Face of Intercollegiate Athletics: Amateurs, Academics, and the Athletic Arms Race.”

The symposium will feature five panels, a lunch presentation from the Sports Legacy Institute, and a Keynote Speech from Sonny Vaccaro, “The Godfather of Grassroots Basketball”. Vaccaro is a former sports marketing executive (he signed Michael Jordan and Kobe Bryant to their first shoe deals) and pioneer on the summer basketball circuit (he founded the ABCD Summer Camp). In his second career, Vaccaro has become an advocate for student-athletes in an effort to change the NCAA's treatment of student-athletes. Vaccaro currently serves as a consultant for the plaintiffs in O'Bannon v. NCAA, a class action lawsuit with the potential to radically alter the college sports landscape.

The distinguished speakers include five contributors to the Sports Law Blog – Marc Edelman, Gabe Feldman, Nathanial Grow, Michael McCann and Warren Zola. There will be panels on the following topics: amateurism, conference realignment, athlete-agent relationships, litigating against the NCAA, and the legality BCS.

To see the symposium's website (with a complete list of speakers), click here. To RSVP, click here.

Posted By : Warren K. Zola

The Risks of Putting New York Out of Commission

Message posted on : 2011-03-08 - 09:30:00

Early last month, Michael Marley reported on Boxing Scene.com that Melvina Lathan, the distinguished Chairperson of the New York State Athletic Commission (the “Commission”), is likely on her way out as a result of Governor Andrew Cuomo's need to address New York State's $10 billion budget deficit. Marley reported that Lathan is but one of up to 10,000 state employees that may or will find themselves without a job in the coming months, unless she opts to offer her services on a pro bono basis. While cutting Lathan loose may make sense to some in the context of New York's bigger problems, the question is begged as to what happens to the Commission, and the New York boxing scene as a whole, if both Lathan departs and the Commission is no longer provided the budget it needs to stay fully and capably staffed. A quick look at some of the potential issues and fall-out follows.

Who Will Step Up to be the Chief ?

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

Lose the Battle, Lose the Wars?

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

No Addition Given the Subtraction?

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

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

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

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

This article is also available at this link.

Posted By : Paul Stuart Haberman

U.S. Supreme Court Declines to Hear Spygate Case

Message posted on : 2011-03-07 - 13:30:00

ESPN.com is reporting that the U.S. Supreme Court declined to grant certiorari today in Mayer v. Belichick, the class action lawsuit resulting from the New England Patriots' 2007 "Spygate" controversy. The lawsuit alleged that by videotaping signals from the New York Jets' coaches, the Patriots had essentially rigged their contests versus the Jets and thus cheated fans out of millions of dollars. Both the district and appellate courts had previously dismissed the case.


For more on the case, be sure to check out Sports Law Blog's prior coverage of the Spygate incident (including Mark Conrad's discussion of the Third Circuit appeal and decision).

Posted By : Nathaniel Grow

NFL Players came within 5 minutes of decertifying last Thursday

Message posted on : 2011-03-07 - 08:52:00

Peter King and Jim Trotter have an excellent "behind-the-scenes" perspective on SI on what happened in last week's negotiation. Jim includes this passage:
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."
To read the rest, click here. It is great read.

Posted By : Michael McCann

MIT Sloan Sports Analytic Conference

Message posted on : 2011-03-05 - 15:30:00

As noted in this space recently, the 5th Annual MIT Sloan Sports Analytics Conference was held in Boston this weekend. The conference's mission is “to provide a forum for industry professionals (executives and leading researchers) and students to discuss the increasing role of analytics in the sports industry.”

A sold out conference found 1,500 attendees listening to an astounding array of panelists—including our own Michael McCann sitting on a panel discussing Sports Labor Issues. Some of the more interesting speakers included Malcolm Gladwell, Mark Cuban (sporting a “talk nerdy to me” t-shirt), ESPN's Bill “The Sports Guy” Simmons, and Brian Burke of the Toronto Maple Leafs.

To get a sense of the conference, which not surprisingly did a wonderful job using social media, you can check out the Twitter feeds at this link.

Serving an academic purpose, the conference had a MBA Sports Case Competition (MIT was just announced as the winner so several attendees and I will be asking for a recount) and accepted over 100 research papers. The authors of these papers were around to share their insights but the papers themselves can be accessed online at this link.

Posted By : Warren K. Zola

If the NFLPA ends up suing the NFL, should Tom Brady be the named plaintiff?

Message posted on : 2011-03-05 - 10:09:00

Marc Thaler of ESPN Boston considers that question.
Posted By : Michael McCann

New Sports Illustrated Column: 10 Answers to 10 Big Questions on NFL Labor Crisis

Message posted on : 2011-03-03 - 15:46:00

I have a new SI column that answers 10 key questions about what will happen if we see decertification/lockout in the NFLPA-NFL labor dispute. Here are two of the answers:

* * *

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.

* * *

10) Following a lockout, can players join teams in other leagues like the United Football League, the Arena Football League or the Canadian Football League?

Yes. Players could join such leagues because their NFL contracts would be suspended and the NFLPA assures that they would continue to receive their $60,000 lockout compensation regardless of other income.

However, there would not be enough roster spots in those leagues for all NFL players. Most NFL players, moreover, would probably resist the temptation of joining a league that does not pay nearly as well as the NFL.

For example, the salary cap is about $4.25 million for each team in the CFL, whose season runs from June 30 to Nov. 27. To put that number in perspective, the salary cap for each NFL team in the last capped season -- 2009 -- was $130 million. Also, the average CFL salary is about $50,000; the average NFL salary is $1.9 million and the minimum NFL salary is $325,000 (NFL practice squad players normally earn $88,400). While $50,000 would be a good salary for many employees, it would probably seem low for someone who is exposing his body to potentially catastrophic injury on every play, particularly for someone who is accustomed to earning much more for that risk.

The lack of viable alternatives for NFL players to play professional football highlights a key difference in bargaining leverage between them and NBA players, who may also be subject to a lengthy work stoppage later this year. Some NBA players, particularly stars, would be able to recoup a substantial portion of their lost NBA income by playing in Europe, whereas few NFL players can recoup a substantial portion by playing pro football elsewhere.

* * *

To read the other eight question/answers, click here.

Posted By : Michael McCann

New Joint Sports Illustrated and CBS News Investigation into Crime and College Football

Message posted on : 2011-03-02 - 15:00:00

Our cover story in this week's Sports Illustrated concerns a joint investigation by SI and CBS News on crime and college football. I had the honor of being part of this investigation, which we've conducted over the last 6 months.

We looked at criminal backgrounds of 2,800+ collegiate players on SI's 2010 preseason Top 25. And we found that one in fourteen players had been in trouble with the law either before or after entering college, and many universities did not conduct background checks on these individuals when recruiting them.

Here are some of the key findings:

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

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

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

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

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

Should schools be allowed to recruit students who have had criminal histories?

Posted By : Michael McCann

New Sports Illustrated Column on Greg Anderson Going Back to Prison for Barry Bonds

Message posted on : 2011-03-02 - 08:00:00

I have a new SI column on Barry Bonds and yesterday's ruling that Greg Anderson -- the former trainer and incredibly/almost unbelievably loyal friend of Bonds -- will be going back to prison.

Here's an excerpt:
* * *

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.

* * *
To read the rest, click here.

Posted By : Michael McCann

NFLPA Decertification -- Impact on Agents

Message posted on : 2011-03-01 - 08:55:00

With NFLPA decertification a strong possibility before the March 3rd deadline, most of our attention to the ramifications of this labor impasse has been directed towards owners and players. However, there is another segment of union representatives who also will be affected—agents. Under the current (but not for long) CBA, the NFLPA is recognized as “the sole and exclusive bargaining representative of present and future employees players in the NFL.” Thus, while unions are vested with the legal right to negotiate on behalf of their members, the NFLPA—along with the NBPA, MLBPA, and NHLPA—grant those rights to individual agents.

The NFLPA has developed regulations that govern all contract advisors which include certification, conduct, agreements between advisors and players, and discipline and oversight among others. If the NFLPA decertifies, agents will no longer be legally bound to a union because there will be no union. While it is likely that the agents will be asked to “voluntarily” register and comply with NFLPA guidelines there is no legal requirement that they do so.

What does this mean? To start, the NFLPA's “Junior Rule” would no longer be in effect. The “Junior Rule”—found in Section 3 B (30) (a) of the NFLPA's Regulations governing contract advisors—prohibits contact with a college player until:
“after a prospective player's last regular season college or conference championship game (excluding any post-season bowl game) or December 1, whichever is later, of the college football season immediately prior to the year in which such prospective player would be eligible to apply for the NFL Draft.”
Thus, while the NCAA does not make such contact illegal, agents are not allowed to contact freshman, sophomores, or juniors under NFLPA guidelines. Without these regulations it is entirely likely that we will see agents reaching out to those highly desirable underclassmen if decertification comes to pass. Furthermore, it is also entirely possible that after the dust settles the “Junior Rule” does not return.

What other NFLPA rules relative to agents will lose their legal imprimatur? What about the requirement that a contract advisor be certified by the NFLPA? How about the cap on commissions set at 3%? What about the Standard Representation Agreement (SRA) that every player signs when they select an agent—will agents be able to sign new clients to different terms? Certainly arbitration rules that govern disputes between agents and the NFLPA will be on hold.

The bottom line is that decertification may bring changes that are ancillary to the labor impasse but meaningful in unintended ways.

Posted By : Warren K. Zola

DePaul's Friday Symposium on Compliance in Chicago

Message posted on : 2011-02-28 - 15:00:00

This Friday, the DePaul Journal of Sports Law and Contemporary Problems hosts "A Rule is a Rule: Compliance in the World of Sports." The presenters include Timothy Epstein, Marc Edelman, and myself. 2.75 hours of CLE is available for attorneys and a reduced rate admission is offered for law students from other area schools. Here's the event description:

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

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

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

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

The event is being held at the University Center (525 S. State), a few blocks south of DePaul's law school.

Posted By : Geoffrey Rapp

More Sports Law Links

Message posted on : 2011-02-28 - 10:30:00

As a follow-up to Mike's recent post with a number of sports law links, I wanted to provide a few more, as there have been a number of interesting developments in our field.

1. 60 Minutes ran a story on legendary Vegas-based sports gambler Billy Walters last month. The video clips provide a fascinating look into the world of high stakes "white collar" sports gambling.

2. Did Jose Canseco's admitted steroid use rub off on other MLB players? Eric Gould and Todd Kaplan analyze Canseco's "peer effects" in a forthcoming issue of Labour Economics.

3. Patrick Hruby of ESPN.com explains why lawyers "always get [the] last laugh in sports, as in life."

4. Ben McGrath of The New Yorker asks - "Does football have a future?" McGrath's article looks at the "concussion crisis" in the NFL. In the latter part of the article, he mentions the possibility of imminent class action lawsuits.

5. The conventional wisdom in sports gambling is that sports books try to set their poinspreads (sides) and totals (over/unders) as a conservative/guaranteed way to profit. Steve Levitt (co-author of Freakonomics) cast doubt on such strategy in an oft-cited 2004 paper published in The Economic Journal. Rodney Paul and Andy Weinbach provide empirical support for the "Levitt hypothesis" in a new article in Applied Economics Letters.

6. Was Congress complicit in connection with baseball's antitrust exemption? Neil Longley examines Senate voting patters in a forthcoming Applied Economics Letters piece.

Posted By : Ryan M. Rodenberg

Sunday Sports Law Links

Message posted on : 2011-02-27 - 12:00:00

* Mark Cuban wonders why more superstar U.S. teenage basketball players don't go play professionally in Europe, where players can be as young as 14 and earn lucrative contracts. The NBA, as we know, requires that U.S. players be 19-years-old and one-year removed from high school before they are eligible to play.

The European route was clearly successful for Brandon Jennings, who played professionally in Italy for one-year before becoming eligible for the 2009 NBA draft.
Jennings earned about $1.2 million in Italy between salary and endorsement income -- obviously more than he would have "earned" while playing as a freshman in college, assuming he had overcome his eligibility issues.

The international experience has been much less successful for 6'11 power forward Jeremy Tyler, however. Tyler skipped his senior year of high school and struggled playing professionally in Israel in 09-10. Then again, Tyler has been much more impressive this season while playing in Japan's pro basketball league--a league which has former NBA players in it, including Bruce Bowen and Jerold Honeycutt. Tyler is averaging an efficient 9 points, 6 rebounds and 14 minutes per game while drawing consistent praise from his coach. Tyler is eligible for this year's NBA draft -- his recent improvement in play, not to mention impressive size and athletic ability, probably will land him on an NBA roster next season.

* * *

* Shira Springer of the Boston Globe has an excellent preview of this week's MIT Sloan Sports Analytics conference (hat tip to Warren Zola). I will be speaking at the conference on the Sports Labor Relations panel.

* * *

* How would you like to study international sports law in Florence, Italy over the summer and get law school credit for it? The South Texas College of Law is sponsoring a study abroad program in Florence between June 3 and June 25 that will focus on two courses: international amateur sports law and international professional sports law. NFL agent/attorney and former NFL player Ralph Cindrich is one of the instructors, as is South Texas College of Law prof James Musselman. Sounds like an awesome experience to me.

* * *

* Last year I wrote a guest column on Torts Prof Blog on the tort implications of "game presentation" -- the various things stadium operators do to keep fans interested during games, including on-court and on-field promotions -- in the context of Coomer v. Kansas City Royals, a lawsuit filed by a guy who while attending a Royals game was injured by a hot dog that had been propelled by the Royals Mascot as part of a promotion. A couple of weeks ago, the Royals lost a motion for summary judgment in the case. Carla Varriale of Athletic Business Network has the story on the Royals' inability to get rid of the case and what it means for game presentation.

* * *

* I was interviewed on the Dennis and Callahan Show on WEEI Boston last week to talk about legal issues involving Barry Bonds, Roger Clemens, and DJ Henry (a Pace football player who was shot and killed by a police officer in a terrible misunderstanding of a situation). I also spoke with Drew Forresster of WNST Baltimore about Bonds, Clemens and the NFL labor crisis, and how NBA players might be in a better position than NFL players when it comes to being locked out: some NBA players, particularly the stars, will have opportunities to go play in Europe and earn considerable $$, while playing with and against legitimate talent (while European basketball may not be as "good" as the NBA, it's far better than the D League or some other minor league).

* * *

* NBA Deputy commissioner Adam Silver claims that three-quarters of NBA teams are losing money, even though NBA television ratings are way up this season.

* * *

* UConn men's basketball coach has been suspended by the NCAA for the first three games of next season. The Hartford Courant's Paul Doyle has the story and interviews, among others, Connecticut Sports Law's Dan Fitzgerald.

* * *

* Do Male Athletes have Body-Image Problems? Admittedly, that's not a question I've thought much about, or maybe at all, but Libby Sander of The Chronicle of Higher Education explains why it's an interesting topic and why new research on the topic may shed light on behavior issues with male athletes.

* * *

*
Before the Red Sox offered 29-year-old outfielder Carl Crawford a 7-year, $142 million contract this past off season, they obviously did their due diligence on him. After-all, the contract is fully guaranteed and the financial commitment being made is enormous, especially for a player who will turn 30 this season and whose game is based to a large extent on his speed. As Gordon Edes of ESPN.boston points out, the Red Sox took due diligence to a such a point that it creeped out Crawford:
[Red Sox Assistant GM] Allard Baird, who oversees the club's pro scouting department, was assigned to scout Crawford for most of the second half of the 2010 season.

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

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

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

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

Kind of reminds of me when the NBA "ordered its security forces" to more closely follow NBA players off-the-court.

Posted By : Michael McCann

Peter Carfagna's Negotiating and Drafting Sports Venue Agreements

Message posted on : 2011-02-24 - 20:00:00

Our friend and colleague Peter Carfagna, who teaches sports law at Harvard Law School and has a long and storied career in the industry, has written his third sports law book: Negotiating and Drafting Sports Venue Agreements (West, 2011).

His two other sports law books -- Sports and the Law: Examining the Legal Evolution of American's Three 'Major Leagues" (West, 2009) and Representing the Professional Athlete (West, 2009) -- are also excellent.

Peter's new book provides outstanding insight on the drafting of sports venue agreements, including naming rights agreements, media rights contracts, food and beverage agreements, and sponsorship deals with state-operated entities. It also includes complete model agreements of these types of contracts. I very much enjoyed reading the book and will no doubt be referring to it.

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

Posted By : Michael McCann

Traveling Violations

Message posted on : 2011-02-24 - 19:22:00

This week the University of Tennessee released the NCAA's “Notice of Allegations” against its football and men's basketball team, outlining eleven violations. Both current men's basketball coach Bruce Pearl and former (albeit brief) football coach Lane Kiffin were cited for multiple violations. While many are predicting sanctions against the University of Tennessee, Bruce Pearl, and possibly the Director of Athletics Mike Hamilton, what is interesting is whether the NCAA will impose further sanctions on Lane Kiffin now that he is the head football coach at USC.
Historically, coaches have left town before the NCAA hammer comes down, often resulting in infractions on the school and players left behind but not on the coach himself—John Calipari anyone? However, on occasion the NCAA has imposed penalties on coaches themselves even if they are employed at a new school. In the NCAA's Manual, Bylaw 19.5 gives the NCAA the right to impose penalties on either an institution or individual—with no restrictions on whether that individual is still at the institution at which they committed the infraction.
This has happened at least twice within the last decade. Specifically, Rick Neuheisel was punished in 2002 while at the University of Washington for violations he was deemed to have made at the University of Colorado. More recently, in 2008 Kelvin Sampson was punished while at Indiana University for conduct he engaged in while at the University of Oklahoma.
It will be interesting to follow whether or not the NCAA will impose some form of punishment on Lane Kiffin now that he is in charge of the football program at USC. If this does happen, does USC have a claim against Kiffin and/or the University of Tennessee?

Posted By : Warren K. Zola

Sports Law Career Opportunity

Message posted on : 2011-02-23 - 12:00:00

The San Diego Padres are currently looking to hire an Associate General Counsel with 3-5 years of general corporate and transactional legal experience. For more information about the position, check out this post at AboveTheLaw, or view Position # 7921 at the recruiting website Lateral Link.

Posted By : Nathaniel Grow

Circumventing MLB's Waiver Rules

Message posted on : 2011-02-22 - 17:02:00

As several media outlets are reporting, the Boston Red Sox included an unusual provision in their recent contract with left handed pitcher Andrew Miller (pictured), in an apparent, creative attempt to circumvent Major League Baseball's complex waiver rules. Specifically, the Red Sox signed Miller to a minor league deal for 2011, with a $3 million club option for the 2012 season. However, the contract stipulates that the $3 million option will immediately vest should Miller be claimed on waivers by another team.

Because Miller signed a minor league contract, the Red Sox can assign him to one of their minor league affiliates to begin the season (most likely their AAA team in Pawtucket). However, if Boston recalls Miller to the majors at some point this year, the Red Sox can only reassign him to the minor leagues if Miller first clears waivers, giving the other 29 MLB teams the chance to claim him for their own major league roster. By giving Miller a relatively expensive vesting option in the event that he is claimed on waivers, the Red Sox appear to hope that other clubs will be deterred from claiming Miller should he end up on the waiver wire.

While Miller's contract may not violate the letter of the MLB rules, it does appear to violate at least the spirit of the waiver system. MLB's waiver process serves two general purposes: first, the rules are intended to protect minor league players by providing them with an opportunity to play for another major league team should their current franchise fail to offer them a major league roster spot; second, the waiver system also helps to enhance competitive balance across the league by preventing major league teams from stockpiling young talent in their minor league systems.

As Dave Cameron over at FanGraphs notes, Miller's specific case does not seem to be at odds with the waiver system's first purpose, as Miller willingly signed off on the provision in order to increase his chances of remaining in the Red Sox's organization for the entire season. However, should this strategy catch on with other teams, it is possible that future minor league players will be coerced into signing similar contracts even though they would prefer to retain an unencumbered chance of being claimed on waivers by another team.

Moreover, Miller's contract appears to be inconsistent with the second purpose of the waiver system, as the Red Sox have created a disincentive for other teams to claim Miller off waivers, increasing the chances that Boston will maintain control over a player that they cannot presently use, but one who another team might need for the 2011 season.

Accordingly, I suspect that MLB will consider revising its rules in order to close this loophole in the future.

Posted By : Nathaniel Grow

NFL Labor Negotiations: Are We Headed for the Doomsday Scenario?

Message posted on : 2011-02-21 - 13:14:00

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

********

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

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

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

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

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


Posted By : Gabe Feldman

Hunter Pence in the Final Arbitration Hearing of the Year

Message posted on : 2011-02-19 - 11:30:00

The Astros have won their past four arbitration hearings prior to Friday's hearing with Hunter Pence. The Astros defeated Wandy Rodriguez last year and Mark Loretta and Jose Valverde in 2008. In 1997 they won against Darryl Kile. They last lost a hearing against Rick Wilkins in 1996. Both the Wilkins and Kile hearings were decided by arbitrator Morton Mitchnick back before all of the hearings were handled by three arbitrators.

With a midpoint between the two exchanged figures in the Pence case of $6,025,000 (Astros offered $5,150,000, and Pence requested $6,900,000), the difference is $1,750,000. The Astros were represented at the Pence hearing by David Gottfried (assistant general manager), Tal Smith (president of baseball operation), and Ed Wade (general manager). Smith has an impressive career representing management in hearings.

Margaret Brogan, Robert Herzog, and Fredric Horowitz will decide the case. Herzog was a panelist on all three hearings this year, and his career panel record is 2-1. Brogan has the most experience with ten, and she has a 5-4 record favoring the teams. Horowitz is 3-3.

With the gap this large and Smith's track record, I am inclined to give the nod to the Astros again.

Here is a complete list of the Astros in arbitration according to my research -

Team Wins (8) - Bill Dawley (1986), Frank DiPino (1986), Bill Doran (1987), Darryl Kile (1997), Mark Loretta (2008), Al Osuna (1994), Wandy Rodriguez (2010), and Jose Valverde (2008).

Player Wins (6) - Joaquin Andujar (1980), Kevin Bass (1987), Glenn Davis (1989), Joe Sambito (1980), Denny Walling (1987), and Rick Wilkins (1996).

Posted By : Ed Edmonds

The 2011 MIT Sloan Sports Analytics Conference

Message posted on : 2011-02-18 - 17:00:00

The premier sports business and sports industry event each year is the MIT Sloan Sports Analytics Conference, which is held in the Boston Convention and Exhibition Center.

The event this year will be held on two days - March 4 and 5 -- and will feature such speakers as author Malcolm Gladwell, Mavericks owner Mark Cuban, Patriots CEO Jonathan Kraft, Maple Leafs President Brian Burke, and ESPN NBA analyst and former head coach Jeff Van Gundy, among many others. The lead organizers of the event are Houston Rockets GM (and former MIT Sloan professor) Daryl Morey and Krafts Sports Group VP of Customer Marketing and Strategy Jessica Gelman. There are many student organizers as well. They really put together a first rate event.

I'll be a panelist on the The Coming War: Sports Labor Relations panel. We'll be discussing the NFL and NBA labor crises. Here is more information on the panel:

The Coming War: Sports Labor Relations

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

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


For more information on the conference, click here.

Posted By : Michael McCann

Salary Arbitration Nearing the End for 2011

Message posted on : 2011-02-18 - 14:33:00

With the Hunter Pence-Astros hearing set for today, the last day for hearings, and the two recent multiyear deals signed by Rickie Weeks and Jose Bautista, the 2011 arbitration season is nearly over. Thirty-four teams and players exchanged figures according to my research. (See my earlier post regarding including Santiago Casilla). Thirty-one settled with their teams and avoided hearings. I already posted a discussion of the other two hearings involving Ross Ohlendorf of the Pirates (he won) and Jered Weaver of the Angels (he lost). The thirty-one settlements before hearings are the fewest since 2004 when there were twenty. According to my research, there were nine multiyear deals, seven settlements above the midpoint, four settlements at the midpoint, and eleven settlements below the midpoint. Here is my list of players in each category:

Multiyear deals (9) - Jose Bautista (Blue Jays), Billy Butler (Royals), Johnny Cueto (Reds), R. A. Dickey (Mets), Josh Hamilton (Rangers), Jason Hammel (Rockies), Carlos Marmol (Cubs), Wandy Rodriguez (Astros), and Rickie Weeks (Brewers)

Above the midpoint (7) - Craig Breslow (A's), Jason Frasor (Blue Jays), Kelly Johnson (Diamondbacks), Miguel Montero (Diamondbacks), Mike Napoli (Rangers), Darren O'Day (Rangers), and Luke Scott (Orioles)

At the midpoint (4) - Jeremy Guthrie (Orioles), Francisco Liriano (Twins), Kevin Slowey (Twins), and Andres Torres (Giants)

Below the midpoint (11) - Santiago Casilla (Giants), Frank Francisco (Rangers), Hong-Chih Kuo (Dodgers), Kameron Loe (Brewers), James Loney (Dodgers), Javier Lopez (Giants), Shaun Marcum (Brewers), Angel Pagan (Mets), Ian Stewart (Rockies), Edison Volquez (Reds), and Delmon Young (Twins)

I will post something more about the Pence hearing.

Posted By : Ed Edmonds

What to do about accused athletes

Message posted on : 2011-02-17 - 23:09:00

FIU has decided to allow Garrett Wittels, its star baseball player who enters this season riding a 56-game hitting streak (three shy of breaking the college record), to play to start the season, despite Wittels facing sexual assault allegations in the Bahamas. The next hearing in the case is not until April 18 and, citing the presumption of innocence, the university decided he should be allowed to continue playing, at least until further developments in his case. This raises the broader question of what to do about athletes (pro and college) who are arrested/accusd/charged with crimes but have not yet been convicted. I genuinely am not sure of the answer.

On the one hand, we do have a presumption of innocence. And if the Duke lacrosse case taught us anything, it is that schools look very bad if they move quickly to suspend student-athletes only to have the allegations and the legal case prove to be a complete fantasy (put aside whether the players did anything inappropriate-although-not-illegal). Is it fair to the player to lose a big chunk of his season because of charges that could prove unfounded? Should we place it in non-athletic terms--would a non-athlete-student in the same position as Wittels be suspended from school? If not, perhaps the athlete should not be suspended from the team. (I feel the same way about professional leagues getting all worked up about players' off-field misconduct).


On the other hand, playing for the school's baseball team is different than being one of 42,000 students. How does it look to have a player representing your institution of higher learning who is facing a charge of sexual assault? And there is a certain degree of fame and prestige enjoyed by a star athlete that is not enjoyed by an ordinary student. How does the alleged victim feel to see Wittels continuing on with his educational and athletic career, including games on ESPN? (Similar issues were raised in the controversy over an alleged sexual assault by a Notre Dame football player, who continued playing while the school dragged its feet and the student ultimately took her own life). The accusation of a crime does place the accused in a different legal position than someone who has not been accused of a crime (even if he has not been convicted). So perhaps a school/team should take action against the player who occupies that different legal position. Or should it depend on the school's assessment of Wittel's culpability--and how does the school make that assessment?


I genuinely do not know where I fall on these questions, so I throw them out there for consideration.

Posted By : Howard Wasserman

The NFL's Unfair Labor Practice Claim & Article LVIII(3)(A) of the CBA

Message posted on : 2011-02-17 - 08:00:00

By now, most football fans know that the NFL has filed an unfair labor practice claim against the NFLPA, alleging that the NFLPA has consistently failed to negotiate with the league in good faith. Most media reports, however, fail to offer a meaningful explanation about what the NFL stands to gain by filing this grievance.

Here's my hunch: The NFL grievance is about trying to delay the NFL players' right, without decertifying prior to the expiration of the CBA, to bring an antitrust challenge against certain NFL practices. This is based my reading of a particular provision buried on p. 238 of the NFL Collective Bargaining Agreement: Article LVII(3)(A).

Upon careful review, Article LVII, Section 3(A) of the NFL collective bargaining agreement (p. 238 of PDF) states as follows:
Following the expiration of the express term of this Agreement ... if the NFLPA is in existence as a union, the Parties agree that none of the Class Members ... nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and the NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later.
Thus, pursuant to Article LVII, Section 3(A), the event of impasse would trigger the start to a six month waiting period before the NFLPA, if it is in existence, could attempt to challenge the NFL salary cap, draft and other labor-side restraints under Section 1 of the Sherman Act.

As a matter of law, however, impasse cannot occur where the party seeking to benefit from declaring impasse has bargained in bad faith. Therefore, if the NFL can show that the union is engaged in some sort of "bad faith" bargaining, impasse would be delayed, and so too would be the players rights under the collective bargaining agreement to bring an antitrust suit against the league's draft, salary cap and other restraints.

Of course, the thought of the NFLPA bringing an antitrust challenge against certain league-wide practices is a real fear for NFL team owners. Indeed, the NFL players, after a failed strike, implemented this strategy successfully in the case McNeil v. Nat'l Football League, 790 F.Supp. 871 (D. Minn. 1992).

Posted By : Marc Edelman

New Sports Illustrated Column: Could Michael Jordan become Player/Coach?

Message posted on : 2011-02-16 - 14:18:00

Recently, Henry Abbott of True Hoop had a terrific piece looking at the on-court challenges a soon-to-be 48-year old Michael Jordan -- who is now practicing with the Charlotte Bobcats, which he owns -- would have if he sought to return to the NBA, as has some have speculated he might want to do.

In a new SI column, I write about the legal obstacles of there being an owner/coach in the NBA. Here are a couple of excerpts:

* * *

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

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

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

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

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

* * *

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

* * *

To read the rest, click here.

Posted By : Michael McCann

National Baseball Arbitration Competition Results

Message posted on : 2011-02-14 - 17:45:00

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

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

Semifinalists: William & 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)

Look forward to seeing many of you down in New Orleans for next year's competition….

Posted By : Gabe Feldman

What's Next in American Needle v. National Football League?

Message posted on : 2011-02-14 - 14:18:00

For those following the American Needle case, I just posted on SSRN a draft of my newest law review article, discussing the challenges that American Needle will likely face on remand. A draft of the article is available here.
Posted By : Marc Edelman

Clotfelter on Big Time College Sports

Message posted on : 2011-02-13 - 17:38:00

Here is a nice synopsis of Big-Time Sports in American Universities, by Charles Clotfelter of Duke University, newly published by Cambridge University Press. The book takes a serious, empirical examination of the value, benefits, and defects in big-time American college sports.
Posted By : Howard Wasserman

Sunday Sports Law Links

Message posted on : 2011-02-13 - 07:00:00

* Washington Redskins owner Daniel Snyder is suing the Washington City Paper for libel, claiming that the paper used "anti-Semitic imagery, half-truths, and innuendo to smear or defame him." Andrew Beaujon and Erik Wemple of TBD have a good analysis of the lawsuit. Libel is frequently hard to prove given that libelous statements can't be mere opinions and truth is always a defense; the hurdle is only elevated for public figures (like Snyder) who have to show actual malice, which means intentionally trying to defame as opposed to merely doing so. With these hurdles, Beaujon and Wemple conclude that Synder's claim is unlikely to prevail. The original Washington City Paper article that sprung this litigation was titled The Cranky Redskins Fan's Guide to Dan Snyder. My thanks to Alan Milstein and Bill McCann for these links.

* I recently blogged about Robert Burton, the UConn donor who wanted his $3 million back because he felt ignored by UConn's athletic director as the school interviewed prospective football coaches. After meeting with UConn athletic officials, Burton has decided to let UConn keep the money without a fight (and it was a fight that he likely would have lost, since the $3 million donation was apparently made without conditions). Marc Isenberg had a funny line about this: "Good move by UConn to repair some of the fallout. In related news Burton will call the offensive plays from a headset installed his suite."

* Daniel Fitzgerald of Connecticut Sports Law has a terrific article on sports car law in Connecticut. I also think Dan gets credit for coming up with the phrase, and possibly new section of sports law, now to be known as "sports car law".

* The U.S. Court of Appeals for the 11th Circuit recently dealt a defeat to a group of retired NFL players who had sued the league and the National Football League Players Association, for negligence, negligent misrepresentation and breach of fiduciary duty. Ashley Trent of Inside Counsel has the story on Atwater v. NFLPA.

* The College Sports Council is challenging the National Women's Law Center over a more rigorous--or more exclusionary, depending upon how you see it--application of Title IX to high school sports.

* Elliot Solop of the The Sports Tomato has an excellent piece on whether an NFL lockout would impact the publishing of Electronic Arts' John Madden Football, which has an exclusive deal with the NFL and NFLPA.

* Zak Kurtz of Sports Agent Blog explains why the NFL seems to have won a mediation decision by University of Pennsylvania Law Professor and NFL special master Stephen Burbank on whether the league can keep television revenue during a lockout. Both the NFLPA and NFL are claiming victory, but the numbers suggest that the NFL largely won.

* A reminder that Seton Hall Law School's sports law symposium is on Tuesday. I'm looking forward to it.

Posted By : Michael McCann

Update on White Sox Kickback Scandal

Message posted on : 2011-02-12 - 13:20:00

As I first discussed here back in November and Mike followed-up with in December, the White Sox organization suffered a PR blow when a Federal grand jury indicted a former Chicago White Sox executive and two team 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.

Yesterday, David Wilder, most recently the White Sox Director of Player Personnel, pleaded guilty to one count of mail fraud.
To generate the payoffs in the form of kickbacks, Wilder, along with two White Sox scouts (also indicted) would misrepresent the amount of money needed to sign Mexican and Latin American prospects. As a result, the White Sox paid artificially high amounts for players' rights as well as inflated signing bonuses. Federal sentencing guidelines could result in up to four years in prison for Wilder, but his plea agreement allegedly contains a recommendation from the prosecution for only two years in prison.

Posted By : Tim Epstein

Gaming the Super Bowl Litigation

Message posted on : 2011-02-12 - 08:27:00

Slate has a nice piece (including an interview with SCOTUSBlog's Tom Goldstein) gaming out the options for fans seeking some sort of compensation over Super Bowl seating. It now appears that there are three groups of disgruntled fans: 1) Those denied seats altogether; 2) Those moved into nose-bleed seats; and 3) a group of about 1100 fans who were delayed coming in because several gates were not available because of weather problems. And there are three options: 1) $ 2400 and a transferable ticket to next year's Super Bowl; 2) a non-transferable ticket to any future Super Bowl; and 3) Join the lawsuit (which Goldstein believes will settle for about what the NFL is already offering). The piece then goes on to suggest the best option for various groups of fans.

It also includes an interview with Michael Aventatti, the attorney representing the class-action litigants. He explains that the $2400 offer was not a good deal, since tickets were going for far more than face value (and the NFL knew this), so tickets and accommodations ran more than $ 2400. We knew that, which is why the unseated fans have a good claim for breach of contract. The nosebleed fans less so--their only damages would seem to be the difference in the value of where they were seated as opposed to what they expected to get. And the fraud claim appears to be based on the NFL knowing before Sunday that the seats would not be available--although it is not clear that the league could have done anything about that before then (a key element to the fraud claim).

Posted By : Howard Wasserman

Leverage in Negotiations

Message posted on : 2011-02-11 - 21:06:00

Kobe Bryant's comments this week about playing in Italy if the NBA has a lockout highlight a key difference between bargaining leverage for NBA players and NFL players: some NBA players, including stars, will be able to recoup a substantial portion of their lost NBA income during a lockout by doing what they do best -- playing pro basketball -- whereas few NFL players will be able to recoup a substantial portion their lost NFL income by playing in the Canadian Football League, United Football League or Arena Football League.

The CFL is not likely to pay too well. The salary cap for each CFL team is $4.25 million (to put that number in perspective, the salary cap for each NFL team in the last capped season -- 2009 -- was $130 million). The average CFL salary is $50,000, in contrast to the average NFL salary of $1.9 million and minimum NFL salary of $325,000 (NFL practice squad players normally earn $88,400). While $50,000 would be a decent salary for the average person, it seems pretty low for someone who is exposing his body to potentially catastrophic injury on every play, particularly for someone who is accustomed to earning much more for that risk. Also, there would be a bit of a learning curve for NFL players in the CFL, which has different rules, such as 3 downs instead of 4 downs and 20 yard end zones instead of 10 yard end zones.

UFL salaries are a little bit better:

Also, for a terrific piece on see

Posted By : Michael McCann

New Sports Illustrated Column on Barry Bonds Case and Impact of Greg Anderson Recording

Message posted on : 2011-02-11 - 16:03:00

I have a new SI column on the Barry Bonds trial and how a hearing today will determine whether a recording of a pivotal conversation between Bonds's former trainer, Greg Anderson, and business partner, Steve Hoskins, is deemed admissible or hearsay. In the conversation, Anderson talks about providing Bonds with The Clear (THG).

Here is an excerpt of the column:
* * *

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

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

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

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

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

Bonds: "Not that I know of."

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

* * *

To read the rest of the column, click here.

Posted By : Michael McCann

SRLA Annual Conference - March 3-5, 2011

Message posted on : 2011-02-11 - 12:30:00


As a follow-up to Mark's post last month, the Sport and & Recreation Law Association ("SRLA") conference program has now been posted. There are a number of interesting topics on the SRLA schedule. As a first-time attendee, I am looking forward to it. I will provide a re-cap after the conference, highlighting some of the presentations I found most interesting.

Posted By : Ryan M. Rodenberg

New Sports Illustrated video on Super Bowl ticket lawsuit agianst the NFL and Cowboys

Message posted on : 2011-02-11 - 09:00:00

Here's my Sports Illustrated take on the Super Bowl ticket lawsuit against the NFL and the Cowboys:
Posted By : Michael McCann

4th Annual National Baseball Arbitration Competition

Message posted on : 2011-02-10 - 21:00:00

The 4th Annual National Baseball Arbitration Competition, hosted by the Tulane Sports Law Society, began this morning. We have an incredible group of competitors this year, featuring law schools from across the country. We also have a great group of guest arbitrators, including the following:
  • Michael Weiner, Executive Director and General Counsel, Major League Baseball Players Association.
  • Jon Fetterolf, Partner, Williams & Connolly LLP in Washington D.C.
  • Larry Silverman, Senior Vice President and General Counsel, Pittsburgh Pirates.
  • Carter DeLorme, Partner, Jones Day in Washington D.C.; performs salary arbitration work for the Boston Red Sox and Texas Rangers.
  • Clark Griffith, Attorney; AAA Arbitrator; former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties.
  • Fernando Tamayo, former International Scouting Coordinator for the Boston Red Sox.
  • Darren Heitner, CEO, Dynasty Athlete Representation; Chief Editor, SportsAgentBlog.com.
  • Jorge Arangure Jr., Senior Writer, ESPN The Magazine.
  • Josh Byrnes, Vice President of Baseball Operations, San Diego Padres.
  • David P. Fidler, Co-author, Stealing Lives: The Globalization of Baseball and the Tragic Story of Alexis Quiroz.
Following the competition, we will be hosting a half-day symposium at Tulane Law School featuring our guest arbitrators. The symposium is open to the public, so feel free to stop by if you are in the area. Here is the schedule of events:

Friday, February 11th, Tulane Law School Baseball Symposium

2:00-2:05pm Trophy Presentation and Opening Remarks

2:05-2:55pm Mock Salary Arbitration

Representing the Team: Jon Fetterolf
Representing the Player: Josh Byrnes
Arbitrator: Larry Silverman

3:00-4:00pm MLB in the Dominican Republic: Taming the Wild West of
Professional Baseball

Panelists: Jorge Arangure, David P. Fidler, and Fernando Tamayo
Moderator: Darren Heitner

4:10-5:10pm The Upcoming CBA: 16 Years of Labor Peace and Counting?
P
anelists: Josh Byrnes, Clark Griffith, Larry Silverman, and Michael
Weiner
Moderator: Professor Gabe Feldman

5:10-5:15pm Closing Remarks by Professor Gabe Feldman

Posted By : Gabe Feldman

Roger Goodell's Recruitment of College Players in 1984 and Tortious Interference with Contractual Relations

Message posted on : 2011-02-10 - 14:12:00

Jimmy Golen and I recently discussed a very interesting passage from Peter King's Sports Illustrated cover story on Roger Goodell titled The Man of the Hour:
* * *

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

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

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

Like Jimmy, I wonder whether the USFL might have entertained the notion of challenging the legality of Goodell and Brandt's actions (which I assume other NFL employees were engaged in as well).

The specific claim I'm thinking of is tortious interference with contractual relations. That claim refers generally to when one business economically harms a competing businesses' contractual or customer relationships, and engages in that harmful behavior on purpose.

Tortious interference obviously doesn't mean that two companies can't compete with each other -- the absence of competition would be harmful to consumers and inconsistent with federal and state antitrust laws. But tortious interference does mean that when one company intentionally induces customers of a competing company to breach a contract, or when that company intentionally makes false statements about a competing company, that can cross the line into tortious inference.

But here the NFL could have argued a number of points against a tortious interference claim and I think would have prevailed. For one, the amateur players in question were not yet in the league (and thus had not yet signed contracts with USFL teams or even negotiated a prospective contract with a USFL team). The NFL could have also maintained that it was merely recruiting the available labor population in colleges -- much like investment banks compete with each other, rather than coordinate with each other, in recruiting college business students and MBA students, and physicians' groups compete with each other in recruiting prospective physicians and so on. In fact, had the NFL not competed with the USFL in the recruitment of college players, some commentators might have surmised there was collusion between the two leagues in the recruitment of college players (which they may have accomplished in another way through age/experience eligibility restrictions, but that's a topic for another day). I also suspect the USFL probably tried the very same tactic in attempting to dissuade the very same college players from signing with NFL teams.

Still, there's that gray area of wrongly undercutting a rival's business that can be hard to distinguish from appropriate -- and socially desirably -- competitive conduct.

Oh well, 1984 is a long time ago and, besides, the USFL did end up beating the NFL in court anyway (albeit for a judgment of $1, which was trebled to a grand total of $3).

Posted By : Michael McCann

What's Next in American Needle v. Nat'l Football League

Message posted on : 2011-02-10 - 11:00:00

As most blog readers know, the Supreme Court ruled on May 24, 2010 that the National Football League's trademark licensing practices are subject to review under Section 1 of the Sherman Act. This ruling reversed an earlier decision by the U.S. Court of Appeals for the Seventh Circuit, which had held that the National Football League's trademark licensing practices are exempt from Section 1 scrutiny. r

Posted By : Marc Edelman

Jered Weaver and the Angels

Message posted on : 2011-02-10 - 07:39:00

Jered Weaver and the Los Angeles Angels of Anaheim conducted their arbitration hearing yesterday before the arbitration panel of Margaret Brogan, Robert Herzog, and James Oldham. Weaver requested $8,800,000, and the Angels offered $7,375,000. Although Weaver only won one more game than he lost last year, he did lead the Major Leagues in strikeouts with 233. He also posted a strong 3.01 ERA. Because I have not had time to really considered his comparables, I will have to add that in the comments later. Margaret Brogan is 4-4 as a panel member, and James Oldham is 1-1. Herzog is also 1-1 after his panel gave the nod to Ross Ohlendorf. Weaver made $4,625,000. I am going to lean towards the Angels here, but as I mentioned above I have not yet looked carefully at the case.
Posted By : Ed Edmonds

The Legal Issues Behind the NFL CBA Negotiations

Message posted on : 2011-02-09 - 15:45:00

I have a new column up at the Huffington Post that analyzes the key legal issues behind the NFL-NFLPA collective bargaining negotiations. Here's an excerpt. You can find the complete column here.


Have professional athletes decertified their union in the past?

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

Was the 1989 decertification successful for the NFLPA?

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

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

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

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

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

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

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

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

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


Posted By : Gabe Feldman

Lawsuit in Super Bowl ticket debacle

Message posted on : 2011-02-09 - 14:26:00

As one of the commenters on my earlier post noted, a class action has been filed in federal court by more than 1000 Super Bowl ticket holders against the NFL and Cowboys owner Jerry Jones, among others. The action is in federal court under the Class Action Fairness Act, which allows for federal jurisdiction on minimal diversity (one of the named plaintiffs is from Texas). There actually are two groups of plaintiffs: 1) A group of about 400 or so ticket holders who had tickets for what would have been temporary seating that could not be completed because of weather and safety concerns and 2) A group of Cowboys personal seat license holders who, as part of the license, were promised the chance to purchase tickets for the Super Bowl, but were assigned inferior seats with poor sight lines and no "reasonable" view of the famed overhead scoreboard. The claims are for breach of contract, breach of covenant of fair dealing, fraud, and violations of the Texas Deceptive Trade Practices Act; they seek damages, punitive damages, and treble damages under the statute.

The lawsuit comes despite the NFL's escalating efforts to settle by offering tickets to future games, as well as special benefits following Sunday's game, including the chance to go onto the field. My contracts colleagues suggest that, beyond reliance damages actually expended and maybe the difference in ticket value between the expected seat and what they received, plaintiffs are going to have a hard time quantifying actual monetary harm from "loss of enjoyment" of the game. Plus, how does the court consider that these fans also got to go onto the field? Plus, I am pretty certain the fraud claims are not sufficiently pled under FRCP 9(b). And the whole thing may not work as a single class, since the plaintiffs seem to fall in two very distinct groups with very different facts and very different damages.

Is this why people hate lawyers?

Posted By : Howard Wasserman

Hearing Number 1 - Ross Ohlendorf and the Pirates

Message posted on : 2011-02-09 - 09:48:00

Ross Ohlendorf and the Pittsburgh Pirates grabbed the honor for participating in the first arbitration hearing in 2011 yesterday in Phoenix. Ohlendorf is seeking a raise from $439,000 to $2,025,000. The Pirates countered with an offer of $1,400,000 establishing a midpoint of $1,712,500. The arbitration panel consisted of three veteran arbitrators, Robert Herzog, Fredric Horowitz, and Steven Wolf.

The Pirates' pitcher is a Super Two and a graduate of Princeton. While at Princeton, Ohlendorf wrote a thesis titled “Investing in Prospects: A Look at the Financial Successes of Major League Baseball Rule IV Drafts from 1989 to 1993.” Ohlendorf finished 2010 with two years and 139 days of service time. The cutoff this year was two years and 122 days.

Ohlendorf was 1-11 last year in his 21 starts for Pittsburgh. The lone win was against the Philadelphia Phillies on July 2 at PNC Park. Ohlendorf pitched a total of seven innings, giving up five hits with eight strikeouts and one walk. Joel Hanrahan pitched the eighth inning and Octavio Dotel picked up his 18th save with a spotless ninth inning. Ohlendorf did not pitch after August 23 when the Pirates decided to shut him down after he strained a muscle in his throwing shoulder. Ohlendorf also missed some time in April due to a back injury.

Ohlendorf was drafted by the Arizona Diamondbacks in the fourth round of the 2004 draft. He was traded by the Diamondbacks on January 9, 2007, along with Alberto Gonzalez, Steven Jackson and Luis Vizcaino to the Yankees for Randy Johnson and cash. He made his debut with the Yankees later that year and pitched in six games. After pitching in 25 games with a 1-1 record and a 6.53 ERA, he was sent on July 26, 2008, by the Yankees along with Jeff Karstens, Daniel McCutchen, and Jose Tabata to the Pirates for Damaso Marte and Xavier Nady. Ohlendorf lost three games with no wins in five games for the Pirates. He managed to give up 36 hits in 22 and 2/3 innings while walking 12 and striking out 13. He ended up with a 2.118 WHIP! In 2009, however, he had an 11-10 record with a 3.92 ERA in 29 games started with 176 2/3 innings pitched and 109 strikeouts compared to 53 walks. His WHIP was 1.234.

His career statistics are 13 wins and 25 losses, 4.40 ERA, 86 games, 55 games started, 354 innings pitched, 362 hits allowed, 48 home runs allowed, 130 walks, 246 strikeouts, and a 1.390 WHIP.

Here is a list of the other Super Two pitchers for this year - Burke Badenhop, Florida Marlins (RHP-RP), Dana Eveland, Los Angeles Dodgers after the Pittsburgh Pirates failed to tender him (LHP-SP), Armando Galarraga, Arizona Diamondbacks via trade from the Detroit Tigers (RHP-SP), Luke Hochevar, Kansas City Royals (RHP-SP), Jim Johnson, Baltimore Orioles (RHP-RP), Kyle Kendrick, Philadelphia Phillies (RHP-SP), Jensen Lewis, Cleveland Indians (RHP-RP), Darren O'Day, Texas Rangers (RHP-RP), Felipe Paulino, Houston Astros (RHP-SP), Chris Perez, Cleveland Indians (RHP-CL), Sean White, Colorado Rockies after the Seattle Mariners failed to tender him (RHP-RP), and Brad Ziegler, Oakland A's(RHP-RP).

The one name on the list that jumps off the page to me as a comparable is Felipe Paulino. In 14 starts last year, Paulino had a 5.11 ERA and a 1-9 record. He was traded by the Astros to Colorado for Clint Barmes on November 18, 2010. He signed with the Rockies for $790,000 on January 18, 2011. His career statistics are 6 wins and 21 losses, 5.83 ERA, 47 games, 34 games started, 208 1/3 innings pitched, 243 hits allowed, 29 home runs allowed, 90 walks, 187 strikeouts, and a 1.598 WHIP. So, his career statistics are generally below those of Ohlendorf because he has pitched less. However, the Pirates could use Paulino to support their figure.

I will detail a bit more in the comments section including the historical figures for the three arbitrators. I think that they will have a hard time choosing Ohlendorf's figure because of the win-loss record last year and the injuries.

Posted By : Ed Edmonds

Baseball Salary Arbitration

Message posted on : 2011-02-08 - 13:51:00

Thirty-four players and teams exchanged numbers this year in salary arbitration if you include Santiago Casilla and the San Francisco Giants, who announced a settlement on the day of the exchange of figures. Apparently, Casilla and the Giants had an agreement in place two days earlier, but needed to finalize the deal. They seem to have exchanged numbers just to be sure that they preserved their rights until everything was final.

According to my research to date, 21 of the 34 have reached an agreement leaving 13 cases still active. Of the 21, five are multiyear deals; five settled above the midpoint; three settled at the midpoint; and eight settled below the midpoint. The five multiyear deals are Billy Butler and the Royals, Johnny Cueto and the Reds, R. A. Dickey and the Mets, Jason Hammel and the Rockies, and Wandy Rodriguez and the Astros. Settlements above the midpoint include Craig Breslow and the A's, Jason Frasor and the Blue Jays, Miguel Montero and the Diamondbacks, Mike Napoli and the Rangers, and Darren O'Day and the Rangers. The three midpoint settlements are Francisco Liriano and Kevin Slowey with the Twins and Andres Torres and the Giants. The settlements that are below the midpoint include Casilla, Frank Francisco and the Rangers, Hong-Chih Kuo and the Dodgers, Kameron Loe and the Brewers, Javier Lopez and the Giants, Angel Pagan and the Mets, Ian Stewart and the Rockies, and Edison Volquez and the Reds.

Napoli's situation is interesting because he was traded twice after exchanging figures with the Los Angeles Angels of Anaheim. The Angels traded Napoli to the Blue Jays who packaged him in a deal to the Rangers. That deal is part of what is triggering Michael Young to ask out of Texas.

Jon Heyman of Sports Illustrated has tweeted that Ross Ohlendorf and the Pittsburgh Pirates have the first hearing of 2011 today. I will be posting something later about Ohlendorf, who is a Super Two.

Posted By : Ed Edmonds

Missing seats, Super Bowl tickets, and contract damages

Message posted on : 2011-02-06 - 22:36:00

The NFL and the people who run Cowboys Stadium built a lot of temporary seating for the Super Bowl (apparently to set an attendance record by exceeding 105,000), but approximately 1250 seats could not be installed. The league found alternative seating for 850 of those fans, but not for the remaining 400, who were turned away with a refund of triple their ticket's face value--$2400.

Here is a contract remedy question: Are these fans entitled to more and could they successfully sue the NFL for it? Suppose Fan A spent more than $1600 on travel, hotel, etc. He likely spent that money only because he had a ticket to the game and expected to be able to attend, and the NFL knew he will and must make those expenditures to attend the game. So are those recoverable reliance damages? Suppose Fan B paid more than the $ 800 face value because he had to buy the ticket through a broker/scalper. The league controls who purchases tickets and must be aware that many publicly available seats are sold to people who are going to resell them at at least a small profit. I suppose a court might deny recovery there because the beyond-cost resale is against public policy. Still, could Fan B make that case?

Contracts/Remedies people, help me out.

Update: The league is now offering fans one of two packages: 1) $ 2400 (triple face value) plus tickets to next years' Super Bowl, including air fare and accommodations or 2) Tickets, including air fare and accommodations, to any future Super Bowl. Apparently fans balked at the initial offer made Sunday oif triple face value because most spent more than that on tickets, travel, and accommodations.

So a different remedy question: Did the NFL actually go beyond what it would have been on the hook for in litigation? It seems clear Fan A could have sued for all reliance damages (ticket cost, accommodations, etc.). Could Fan A also have gotten tickets to a future Super Bowl, arguing that he was denied the unique experience of attending the game?

Further Update: The lawsuit (mentioned in the Comments) is a class action in California on behalf of more than 1000 fans. But this must include some of the fans who were given new seats. What more could the fans possibly get, especially the fans who were given alternate seating? They have not been damaged. And, just to get procedural: Is there jurisdiction in California? Is there a good forum non conveniens argument? And should California law (which allows for treble damages) apply? This one could get interesting.

Posted By : Howard Wasserman

Did Lou Gehrig not die from Lou Gehrig's Disease?

Message posted on : 2011-02-06 - 15:41:00

Last August, The New York Times reported on a study in the Journal of Neuropathology and Experimental Neurology that suggested that brain trauma, particularly from repeated concussions, can cause a fatal neuro-muscular disease different from, although similar to, Amyotrophic Lateral Sclerosis ("ALS," commonly known as Lou Gehrig's disease). The study was based on studies of tissues from two football players and a boxer who had been diagnosed with ALS, but who had protein markings not associated with ALS.

Part of the new debate over concussions in football has touched on higher incidence of ALS in former NFL players, with the

Now comes word that Minnesota state Rep. Phyllis Kahn has introduced a bill


http://deadspin.com/5752639/minn-legislator-proposes-bill-that-could-open-lou-gehrigs-medical-records-for-review


http://www.minnpost.com/braublog/2011/02/04/25491/gehrig_bill_would_free_yankee_stars_medical_data_for_als-concussion_probe

Posted By : Howard Wasserman

Revisiting Electronic Arts' Exclusive Contract with the NFL and NFLPA

Message posted on : 2011-02-05 - 18:31:00

Back in 2004, I wrote about Electronic Arts snagging an exclusive licensing contract with the NFL and NFLPA to develop, publish, and distribute football video games featuring NFL players and teams. The 5-year, $400 million contract--the exclusivity of which resembles the exclusive NFL-Reebok contract that precipitated American Needle v. NFL--meant the end of other third-party publishers making NFL video games. Most notably, it meant that Sega's popular/arguably better and substantially cheaper NFL 2K series would be discontinued while Electronic Arts' John Madden Football would become the only NFL game in town.

Since then, the exclusive contract has been extended to 2012 and John Madden Football has been published each year, with annual updates to player rosters and, some would argue, only modest enhancements to game play. Nonetheless, each year's iteration of Madden Football tends to attract reasonably favorable reviews and sell quite well.

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

Fast forward to 2011, IGN's Hilary Goldstein takes a critical view of the exclusive NFL contract with Electronic Arts. Here's an excerpt of his article, which hits at two concerns antitrust law has for exclusive contracts: higher prices and diminished innovation.
I have little doubt the Madden series would be considerably better if [Electronic Arts] developer Tiburon had a competitor threatening it each year . . . Does Madden NFL 11 play better than Madden NFL 2005? Yes. There's no question that, over time, the gameplay has seen improvements thanks to better animations and smarter AI. But because there is no one else to stand up against it, Tiburon can schedule its innovations at its leisure. . . .

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

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

Posted By : Michael McCann

New Sports Illustrated Column: Will Mets Owner Fred Wilpon Settle Complaint from Madoff Victims?

Message posted on : 2011-02-04 - 19:08:00

I have a new SI column on the complaint filed by victims of Bernie Madoff against Mets owner Fred Wilpon, and what it means for the future of the Mets. The complaint was unsealed today. Here is an excerpt from the column:

* * *

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

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

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

* * *
To read the rest, click here.

Posted By : Michael McCann

NBA Legend Oscar Robertson Joins Ed O'Bannon Lawsuit against NCAA

Message posted on : 2011-02-03 - 23:39:00

Ed O'Bannon's class action lawsuit against the NCAA, which centers on the NCAA's use and licensing of former college players' images and other identifying characteristics, received a boost last week, when Hall of Fame guard Oscar Robertson - the only player in NBA history to average a triple-double (30.8 ppg, 12.5 rpg, 11.4 apg in 1961-62) -- joined O'Bannon as a plaintiff.

As Libby Sander's discusses in her Chronicles of Higher Education article, the 72-year-old Robertson, who played at the University of Cincinnati until 1960, objects to the NCAA and his alma mater still licensing his image for their financial gain, without his permission, after all these years.

Just check out the Amazon page for his Donruss "American Legends" basketball card, depicting Robertson's days as a college player. Robertson receives no compensation for the cards (unlike his NBA cards).

Dan Wetzel of Yahoo! Sports has more on the Robertson addition and other new co-plaintiffs:

* * *

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

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

* * *

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

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

* * *

To read the current complaint, click here. To read an SI.com column I wrote on the case, click here.

Posted By : Michael McCann

Public Forum: MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY : Rescheduled

Message posted on : 2011-02-02 - 20:35:00

Wednesday, February 09, 2011

Location:
14 Vesey Street

Time:
6:00pm

Speakers:

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

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

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

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

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

Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.

Sponsor: EMIPS Committee

FREE/RSVP: dlamb@nycla.org


Posted By : Paul Stuart Haberman

New Sports Illustrated Column on Lawsuits filed against New York Mets Owner

Message posted on : 2011-02-01 - 19:07:00

I have a new SI.com column on two significant lawsuits filed against Mets owner Fred Wilpon and others connected to the team. Here are some excerpts from the column:

* * *

The lawsuits center on Wilpon and his companies' investments with imprisoned Ponzi scheme artist Bernard Madoff and whether Wilpon and his associates knew, or should have known, of Madoff's fraudulent actions. If successful, the lawsuits could require Wilpon and other defendants to pay hundreds of millions in damages. Payment of those damages could threaten Wilpon's ability to own the Mets or at least to sustain a high team payroll. (The Mets had the fifth-highest payroll in 2010 at $133 million.)

* * *

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

* * *

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

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

* * *

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

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

* * *

To read the rest of the column, click here. On Thursday, at 10:35 A.M. Eastern, I'll be on Sirius XM MLB Network Radio (XM Channel 175) to discuss the column with former Red Sox manager Kevin Kennedy and former Mets GM Jim Duquette. Hope you can tune in.

Posted By : Michael McCann

No Listen, No Money: Disenchanted Donor to UConn Athletics wants his $3 Million Back

Message posted on : 2011-01-28 - 00:00:00

Everyone knows that big money boosters influence athletic departments at big-time sports schools.

But what happens if a booster who gives a combined $7 million to a school feels as if his "suggestions" are being ignored by the school's athletic director?

Meet Robert Burton, a Greenwich CT-based printing industry executive who wants a $3 million donation returned from UConn. A leading reason for his demand is that he feels that he was denied an opportunity to comment on the school's football coaching search. He claims that he was blown off by the school's Athletic Director, Jeff Hathaway. Paul Caron of Tax Prof Blog has more and so does Dan Fitzgerald of Connecticut Sports Law.

I have 3 thoughts on this controversy:

1) To answer a question that some people are asking: unless Burton attached stipulations to his gift to the school, it's unlikely that he'll be able to get the money back. He probably already knows that. I suspect an alternate "victory" for him would be to embarrass the school and Athletic Director Hathaway, and to discourage other boosters and prospective boosters from contributing money to UConn (especially those boosters who would contribute with an expectation of gaining access in exchange).

2) Marc Isenberg had a good line about this dispute: "The unstated rules of boostering are now written."

3) While Burton is being criticized for claiming a bargained-for exchange between his donation and his ability to influence UConn athletics, and for trying to now take his gift back, I wonder if UConn and particularly Athletic Director Hathaway bear some responsibility, too.

After-all, if a school is going to accept an enormous gift from a donor whom the school presumably knows is only donating to have influence over the school's athletic program, then the school shouldn't later deny that donor a chance to share his thoughts. It wasn't like Burton was donating to help fund a new science building while having a passing interest in the sports program; he was donating to be a major player in UConn athletics. Don't take his money if that isn't going to happen.

Burton says in his letter that he wasn't looking for veto power over the hiring decision (which would have been an unreasonable request), only a chance to provide comments on the candidates. Would it have been that hard to let him comment and then give him the courtesy of listening?

Along those lines, isn't an informal duty of an athletic director to ensure that significant alums and boosters are treated well? It seems that if Hathaway had granted Burton a half hour meeting or even just a good phone conversation, it might have satisfied Burton's craving for influence, avoided this controversy, and preserved good relations with a generous donor.

Posted By : Michael McCann

Sonny Vaccaro to speak at the University of San Francisco School of Law

Message posted on : 2011-01-27 - 21:00:00

Giuliana Garcia, Co-President of the University of San Francisco Sports & Entertainment Law Association, has let me know of an event next week that will surely be of interest to those in the Bay area: Sonny Vaccaro will be speaking at USF Law School on college sports and how college athletes are treated by the NCAA.

Here is Giuliana's message:

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

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

Should be a great event. More information, click on the flyer image above or contact Giuliana at giuliana.r.garcia[at]gmail.com.

Posted By : Michael McCann

Networking Event

Message posted on : 2011-01-27 - 19:26:00

The Sports Lawyers Association is hosting a great networking event on February 2, 2011 at 6pm at the Prudential Center before and during the Nets-76ers game. Jeff Gewirtz, the CLO of the NETs, and Charles Mierswa, the CFO of the Nets, will be giving a brief lecture during the event. This is a great opportunity for people in the New York area to meet Jeff and Charles and a variety of other people working in the sports industry.

Here are the details:


Posted By : Gabe Feldman

Shaquille O'Neal Delivers Sports Law Lecture at Harvard Law School

Message posted on : 2011-01-27 - 17:21:00

Boston Celtics center and future Hall of Famer Shaquille O'Neal recently spoke at Harvard Law School Professor Peter Carfagna's sports law class. He was accompanied by his agent, Perry Rogers, and by Celtics Assistant General Manager & Associate Counsel Mike Zarren.

Shaq is no stranger to higher education. After playing 8 seasons in the NBA, he completed his college degree from Louisiana State University in 2000 (and, in doing so, helped to show that players who leave school early can always go back and earn a degree). Five years later, Shaq earned his MBA from the University of Phoenix. He is now a handful of credits away from earning a Ph.D. in Human Resource Development, with aspirations for running for Sheriff in Central Florida once he retires from the league.

Shaq spoke to the law students about managing his brand and publicity rights issues, among other topics. Jill Greenfield of Harvard Law School's communications office has the story on Shaq's visit. Here are some excerpts:
* * *

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

* * *

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

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

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

* * *
To read the rest, click here. To read Geoff and my previous posts about Shaq being a deputy sheriff, click here.

Posted By : Michael McCann

Sports Law Career Opportunity

Message posted on : 2011-01-27 - 16:31:00

For those looking to break into the sports law industry, the NBA is currently hiring an in-house legal counsel to work on matters relating to the WNBA and NBA D-League. In addition to traditional legal duties, the position would also entail some basketball-related functions such as managing each league's player draft. For more information, check out the job ad available here.
Posted By : Nathaniel Grow

MMAdness Postponed...

Message posted on : 2011-01-26 - 13:55:00

Due to inclement weather in New York City, tonight's scheduled "MMAdness-Issues Surrounding the Legalization of Mixed Martial Arts in NY" forum at the New York County Lawyers Association building is postponed. Please check back for the new date.
Posted By : Paul Stuart Haberman

Quebecois Roulette?

Message posted on : 2011-01-25 - 21:36:00

Should Tommy Morrison be Licensed to Box in Quebec if He Continues to Refuse HIV Testing?

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

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

For the full article, please go to this link.

Posted By : Paul Stuart Haberman

Seton Hall University School of Law's Annual Sports & Entertainment Law Symposium

Message posted on : 2011-01-25 - 15:25:00

On Tuesday, February 15, 2011, Seton Hall University School of Law and the Seton Hall Journal of Sports and Entertainment Law will be hosting its Annual Sports and Entertainment Law Symposium. The symposium will address current sports and entertainment issues, with a specific focus on the professional and ethical dilemmas confronting attorneys representing athletes and entertainers. 3 CLE credits will be awarded for full day attendance (the symposium will be from 4:30 to 9:00 p.m.). I look forward to joining Alan Milstein, Marc Edelman, and other speakers there.

Here are the details:


KEYNOTE ADDRESS
Time/Location Description/Information
TBA Jeffrey B. Gewirtz
Executive Vice President & Chief Legal Officer
New Jersey Nets Basketball/Brooklyn Sports & Entertainment

PANEL 1 — TRIAL PUBLICITY

This panel will focus on Rule 3.6 of the ABA's Model Rules of Professional Conduct.
Time/Location Description/Information
TBA Christopher D. Adams, Esq.
Member — Walder, Hayden & Brogan, P.A.
TBA Darren Del Sardo, Esq.
Partner — Damico, Del Sardo & Montanari, L.L.C.
TBA Ellen C. Marshall, Esq.
Of Counsel — Greenbaum, Rowe, Smith & Davis L.L.P.
TBA Michael McCann, Esq.
Professor — Vermont Law School

PANEL 2 — LABOR CONCERNS IN SPORTS & ENTERTAINMENT

This panel will concentrate on the labor concerns surrounding sports leagues and the entertainment industry.
Time/Location Description/Information
TBA Jessica Berman, Esq.
Associate Counsel — National Hockey League
TBA Ann Burdick, Esq.
Senior Legal Counsel — Writers Guild of America East
TBA Marc Edelman, Esq.
Assistant Professor — Barry University's Dwayne O. Andreas School of Law
TBA Alan C. Milstein, Esq.
Member/Shareholder — Sherman, Silverstein, Kohl, Rose & Podolsky, P.A.


For information on attending, click here. Excellent work by Elizabeth Blakely & Emily Battersby, the Symposium Editors, on putting the event together.

Posted By : Michael McCann

A Few Good Links

Message posted on : 2011-01-25 - 00:04:00

* Barry Bonds received some bad news last Friday, as Judge Susan Illston ruled that other big league players who were clients of Greg Anderson will be able to testify for the prosecution in Bonds's case. I write about Judge Illston's ruling in a column for SI.com. In the column, I predict that other players testifying will increase the chances of Bonds testifying in his own defense. Paul Elias also writes about Judge Illston's decision in a piece for the Associated Press.

* In looking at the concussion issue in the NFL, Ben McGrath of The New Yorker asks the most important question: Does Football Have a Future?

* One person who seems to be banking on football having a future--at least in the near future--is 48-year-old running back Hershel Walker, who is pondering a comeback. There is no "age ceiling" in the NFL (and the Age Discrimination in Employment Act bars discrimination of persons over 40), so if Walker proves good enough, he'll have a chance to play again.

* Are NFL players really united as March 4, the day the CBA expires, approaches? Not so if we look to Jets cornerback Antonio Cromartie, who had some choice words about the negotiation tactics of NFLPA executive director DeMaurice Smith.

* Interesting article from the Associated Press on Kwame Brown, the much ridiculed number 1 overall pick of the 2001 NBA Draft. While Brown has been a disappointment throughout most of his career and is now on his fifth NBA team, he seems to have turned a corner this season on the Charlotte Bobcats, with better numbers and playing with much more confidence. It's worth noting that while Brown has clearly not lived up to the hype of being the number one overall pick, he's still only 28 years old and, particularly given the dearth of quality NBA centers, he presumably could play another 6 or 7 seasons, perhaps at a relatively high level, too. Also, going into the season, Brown had earned $50 million over his NBA career. Not too shabby for a 28-year-old supposed "failure".

Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2011-01-22 - 12:37:00

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

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

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

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)

Posted By : Geoffrey Rapp

Public Forum: MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY : Update

Message posted on : 2011-01-21 - 21:40:00

Wednesday, January 26, 2011 Location: 14 Vesey Street, New York, New York

Time:
6:00pm

Speakers:


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

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

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

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

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


Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.

Sponsor: EMIPS Committee
FREE

RSVP: dlamb@nycla.org


Posted By : Paul Stuart Haberman

Catching up with Links

Message posted on : 2011-01-21 - 12:50:00

* I have a Question/Answer for Sports Illustrated on collusion charges filed by the NFLPA against the NFL. I talk about the quality of NFLPA evidence showing collusion and how the NFL can defend against that evidence.

* Brian Baxter of American Lawyer also writes about the collusion charges and has some interesting insights on the law firms and lawyers involved.

* What's going to happen in today's Barry Bonds hearing on the admissibility of various pieces of evidence? Paul Elias of the Associated Press examines the key issues at stake.

* Should the University of Texas have its own cable channel, which ESPN is paying Texas $300 million over the next 20 years to distribute, when the channel will primarily feature sports played in an "amateur" sports association? The channel will also show high school sports. Michael Rosenberg of Sports Illustrated wonders about the potential conflicts of interest, including the recruiting advantages it gives UT over Texas high school players who are featured on the UT channel.

* There's a lot of good stuff over at Sports Agent Blog. If you haven't read that blog, I strongly recommend you check it out.

* The NFL's Personal Conduct Policy empowers Commissioner Roger Goodell to regulate any concduct that he deems detrimental to the league. Should thrash-talking that doesn't have any obscenities or discriminatory language really be within his purview, though? Joe Henderson of the Tampa Tribune wonders about that.

Posted By : Michael McCann

Does lack of real insurance drive players to NFL?

Message posted on : 2011-01-20 - 11:55:00

With a record number 56 juniors declaring for the NFL draft this week people begin the debate of who made a good decision and who made a mistake in giving up their collegiate eligibility. Further confusing the situation is the uncertain labor future given the expiring CBA making some form of work stoppage a distinct possibility.

What isn't discussed is the lack of true insurance for many student-athletes to protect their financial futures should they return for another year of college football. While the NCAA created the Exceptional Student Disability Insurance (ESDI) Program in 1990 to allow student-athletes with pro potential in football, baseball, ice hockey, and men's and women's basketball, an opportunity to obtain insurance the program is far less valuable than meets the eye.

In football a student-athlete must be predicted to be a first or second round draft pick and the maximum coverage allowed under this policy is $ 5 million. Furthermore this policy, and only under certain conditions, allows the student-athletes to obtain a loan against their future earnings to cover the premium (about $ 8,000 per million of coverage).

While the aforementioned requirements may be reasonable, what is of major concern is that the policy only covers “permanent total disability.” Thus under this policy a star player who is seriously injured during a game and sees their draft prospects plummet from a top 5 pick to free agent stats because they aren't “permanently disabled” collects nothing.

True “loss of value” coverage is offered by insurance carriers whereby a player projected to be a top ten pick that suffers an injury but manages to continue playing at a slightly lower level and gets drafted in the fourth round collects on the gap in compensation between their anticipated early first round and their actual fourth round salaries. As one would expect the premiums for such coverage are tremendously high. After much debate in the fall of 2010 the NCAA finally relented and allows student-athletes the ability to obtain such coverage, where they miss the boat is that they prohibit student-athletes and their families the ability to get loans based on future earnings to pay for these premiums.

As a result, the ability for an elite college football player to insure against an injury that doesn't qualify as total disability but does hamper their pro potential are priced outside of their means. Something the NCAA could and should permit. Thus, it is not surprising to continue to see the flow of college players making the jump to the NFL earlier than they may otherwise.

For an outstanding piece on this subject please read “The Legal & Business Aspects of Disability Insurance in Professional and College Sports” written by Glenn Wong and Chris Deubert.

The NCAA Exceptional Disability Insurance policy can be found at this link.

Posted By : Warren K. Zola

Welcoming Warren Zola as a Guest Blogger

Message posted on : 2011-01-20 - 11:54:00

We're thrilled that Warren Zola will be a guest blogger on Sports Law Blog. Warren is Chair of Boston College's Professional Sports Counseling Panel. He is also an Assistant Dean at Boston College, a sports business and law professor and a sports attorney. Check out his post above titled Does Lack of Real Insurance Drive Players to NFL?
Posted By : Michael McCann

New Sports Illustrated Column Previewing Barry Bonds Trial

Message posted on : 2011-01-18 - 17:08:00

I have a new SI.com column that previews the upcoming Barry Bonds trial, which is scheduled to begin on March 21. Here's an excerpt:

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

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

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

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

* * *

To read the rest, click here.

Posted By : Michael McCann

Are the NFL Playoffs really better than the BCS?

Message posted on : 2011-01-18 - 14:56:00

We spent a lot of time debating the legality and merits of the BCS on our blog, but is the BCS actually better than the NFL playoffs as a mechanism for determining which is the best team?

Joe Posnanski of Sports Illustrated asks that question. Here is an excerpt:

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

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

To read the rest, click here.

Posted By : Michael McCann

Scorecasting: The Hidden Influcnes Behind How Sports and Played and Games are Won

Message posted on : 2011-01-18 - 12:34:00

Howard had a good post a few days ago on a Sports Illustrated article by Jon Wertheim and Tobias Moskowitz on the causes of home-field advantages in sports. Howard relates their article to the umpire-judge analogy, a favorite topic on this blog.

If you're interested in reading more about Jon and Tobias's work, you can now purchase their book on Amazon: Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won. I haven't read it yet, but I saw Jon and Tobias present on their book while it was a work-in-progress at last year's MIT Sloan Sports Analytics Conference, and it sounded awesome.

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

Some of the eye-opening subject include:

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

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

* * *

[From another customer review]:

Some quick examples from chapters I enjoyed:

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

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

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

Posted By : Michael McCann

Sports and Recretional Law Association Conference March 3-5 in Savannah, Georgia

Message posted on : 2011-01-17 - 21:33:00

The Sport and Recreation Law Association will be holding its 24th annual conference from March 3rd to 5th in Savannah Georgia. The conference features peer-reviewed presentations on many salient topics involving sports and recreation law. Topics include issues involving personal injury liability, risk management, high school and collegiate athletics, products liability, Title IX, First Amendment, intellectual property. Attendees include professors, attorneys, athletic directors, risk management specialists and students.

Conference registration is available online. The website is srlaweb.org.

I have attended SRLA conferences for the last decade and found the topics presented involved subjects not always discussed in law school settings. And, socially, SRLA members are a great group of people.

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


Posted By : Mark Conrad

N. Jeremi Duru's Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL

Message posted on : 2011-01-16 - 18:00:00

Our colleague and friend Jeremi Duru, a professor at Temple University Beasley School of Law, is the author of an outstanding and timely new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (with forward by Tony Dungy).

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

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

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

Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America's most popular sport and added an extraordinary new chapter to the civil rights story.
I had the chance to review Jeremi's book, and was extremely impressed. My comments, along those of several others, are on the book cover:
"My personal journey of success would have been much more difficult if not for the sacrifices of many that blazed my trail. The Fritz Pollard Alliance created a highway for expanded opportunities for African Americans, which are chronicled in this fascinating and historic book."--Warren Moon, NFL Hall of Fame Quarterback

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

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

"This excellent book is a must for fans of football and other sports, as well as for those with a passion for racial justice. Professor Duru offers us a thoughtful and engaging perspective on the evolution of equal treatment in professional football."--Paul C. Weiler, Professor, Harvard Law School, and Creator of Harvard's Sports and the Law
Advancing The Ball can be purchased on Amazon and Oxford University Press's website. Whether you agree or disagree with book, you'll find it to be a provocative and thoughtful read.

Posted By : Michael McCann

Home-field advantage and the umpire analogy

Message posted on : 2011-01-15 - 23:32:00

An article by Tobias Moskowitz and L. Jon Wertheim in the new Sports Illustrated (I cannot find it on-line for some reason) examines the cause of home-field advantage in sports. If the study is empirically sound (and I want to down with some empiricists to help me figure out if it is), the results are groundbreaking. Moskowitz and Wertheim argue that home-field advantage is mostly explained by official bias, influenced by a combination of the closeness of the game and the game situation; the home crowd (size, loudness, proximity, and intensity); and limited attention to, or accountabiltiy for, particular decisions. Read the whole thing if you can get it (or it eventually comes on-line).

Briefly, officials conform their calls to social pressure created by the home crowd. Officials use crowd noise to help them resolve uncertainty in making a call, resulting in more calls going the way the home crowd wants them to go. Studies done for or discussed in the the story showed a range of calls in a range of sports that systematically favor home teams--extra time, fouls, and yellow and red cards in soccer; called (non-swinging) balls and strikes in baseball; close plays on the bases in baseball; traveling in basketball; and penalties and fumbles in football. The psychological effect is more pronounced in well-attended games (according to the story, in 2007, the Italian government ordered teams with deficient security to play games without spectators; 21 games were played in empty stadiums and a study by two economists found dramatic decreases in home-team benefits in fouls, yellow cards, and red cards).

The bias is revealed, in part, by the rise of technology, particularly in football. Visiting teams are more successful in overturning calls favoring the home team, especially where the home team is trailing. In other words officials make mistakes in the home teams' favor more often than they do in visiting teams' favor (although the difference is small). Replay thus has resulted in the narrowing or elimination of the home-team advantage, at least as to turnovers, because some of those erroneous calls are corrected (so maybe I need to rethink my opposition to replay in football). Technology also reveals that officials get it right most of the time (about 85 % on balls and strikes). But the mistakes they make are not random--they tend to favor the home teams. And, of course, most mistakes are not discoverable or reversible--thus the home-field advantage continues.


I am not sure what to do with the story, which I find fascinating. For starters, I wonder what this tells us about the much-despised umpire analogy. One of my objections has been that the analogy, as used, misrepresents what umpires do. This study supports that thought. Umpires clearly do not just call balls and strikes as a simple, clear, robotic exercise--umpires (and other officials) are human and they and their decisions are subject to outside pressures and influences, such as, essentially, public opinion.
Similarly, critics of the umpire analogy have focused on the outside influences that (everyone who is being honest recognizes) affect judicial decisionmaking--life experience, ideology, politics, empathy, public opinion and pressure--just as outside influences affect umpires. But is there a still more-precise comparison between judicial decisionmaking and officiating, given what this new study shows? Is there a litigation "home team" that systematically gets the benefit of judicial decisions? Perhaps the government (especially in criminal cases) or any other repeat player in litigation? Are judges affected by the (unconscious) need/desire to make the populace happy, just as umpires are similarly affected, and does that affect decisions?

What else can this study tell us about judicial decisionmaking?

Posted By : Howard Wasserman

You Can't Sit There! UVA's Ticket and Seating Policy for Men's Basketball Games Called into Question

Message posted on : 2011-01-15 - 18:25:00

Jeff Eisenberg of Yahoo! Sports has a great piece on a UNC hoops fan who bought a $100, 2nd row seat at a UNC-UVA game played in Charlottesville VA, but because he was wearing a Carolina blue coat and because the section was primarily intended for UVA fans and athletic staff, he was told he could not sit in the seat he purchased.

He was escorted out of the section -- which I imagine could have been embarrassing -- and dispatched to a different and not as good seat, where his school's colors were apparently less offensive.

Should he have been forced to change seats merely because he was supporting the opposing team? Even as a UVA alumn, I say no.

Here's an excerpt from Eisenberg's story:
* * *

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

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

* * *

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

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

* * *
To read the rest, click here.

To expand my comments, while colleges clearly have "some" authority to regulate the conduct of fans and what's known as fans' "cheering speech" (i.e., how fans cheer, either for or against a team/player - a topic which Howard has written about), their use of that authority has to be carefully drafted. For instance, if fans excessively and loudly spew out profanities at games, and there are kids around, their First Amendment rights may be trumped by various concerns, including those based on security. Plus, those fans would likely have violated the terms of their ticket admission by being so disruptive.

But merely wearing the opposing team's colors? Come on. Hard to see how that can be regulated without providing notice to ticket buyers in advance.

It's disappointing that a school founded by Thomas Jefferson, of all people, would take this approach.

Posted By : Michael McCann

F.T.C. to Investigate Football Helmet Manufacturer Riddell

Message posted on : 2011-01-15 - 10:00:00

The Associated Press reported on Friday that the United States Federal Trade Commission is looking into potentially misleading and deceptive trade practices by football helmet manufacturer Riddell. Riddell is the official helmet manufacturer of the National Football League.

According to the AP article, the F.T.C. is concerned about statements on Riddell's website stating that "research shows a 31 percent reduction in the risk of concussion in players wearing a Riddell Revolution football helmet when compared to traditional helmets." According to United States Senator Tom Udall (New Mexico) -- who wrote to the F.T.C. requesting an investigation -- there is little evidence supporting Riddell's safety claims. For its part, Riddell released a statement calling the allegations "unfounded and unfair," and welcoming any scrutiny.

The AP interviewed Professor Stephen Ross, director of Penn State's Institute for Sports Law, Policy and Research, for its story, who noted that "the commission has several options if it decides to pursue action against companies, including a cease-and-desist order."

For more on this story, see the Associated Press's report here.

Posted By : Nathaniel Grow

Show Myself The Money? NFL agent Bob LaMonte and Representing Both Sides of Cleveland Browns Negotiation

Message posted on : 2011-01-14 - 15:00:00

Is there a conflict of interest when the same NFL agent represents a team's president, executive VP, general manager and the person whom the team is hiring as coach?

Welcome to the world of the Cleveland Browns!

Bill Lubinger of the Cleveland Plain Dealer has the story and interviews several persons, including Rick and me:

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

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

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

* * *

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

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

* * *

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

* * *

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

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


To read the rest, click here.

Posted By : Michael McCann

Even More on Antitrust Law and the BCS

Message posted on : 2011-01-14 - 08:30:00

While Monday evening's BCS National Championship Game commanded much of the college football world's attention this week, the antitrust implications of the Bowl Championship Series continued to make news as well. Specifically, as reported by several media outlets, the law firm of Arent Fox -- legal counsel to Boise State University and the Mountain West Conference on matters relating to antitrust law and the BCS -- recently submitted a report to the United States Department of Justice arguing that the BCS violates federal antitrust law. The Justice Department is presently deciding whether to launch a formal antitrust investigation of the BCS.

The Arent Fox report sets out to debunk 22 common arguments advanced in support of the BCS, ranging from the assertion that a playoff would damage college football's regular season, to the issue of whether consumer welfare is sufficiently implicated by the BCS to warrant an antitrust lawsuit. The report concludes that the BCS does in fact violate antitrust law, and urges the Justice Department to launch a formal investigation.

To read the Arent Fox report click here. For other takes on the legality of the BCS under antitrust law, please see my article "Antitrust & The Bowl Championship Series," as well as Michael McCann's "Antitrust, Governance, and Postseason College Football."

Posted By : Nathaniel Grow

Could the Alleged Misdeeds of Internationally Based Boxers Put Them Down for the Count with U.S. Commissions?

Message posted on : 2011-01-13 - 20:10:00

Back in September, hot junior middleweight contender Alfredo (El Perro) Angulo, 19-1 (16 KOs), provided the boxing world with an explicit example of what it takes to be banned from United States boxing venues, United States television, and the United States as a whole. Angulo, then a favorite son of HBO Sports, was deported back to Mexico in September after it was discovered that he had illegally entered the United States, got deported back to Mexico, and illegally entered the United States for a second time over the course of several years. In one fell swoop, Angulo burned not only U.S. Immigration and Customs Enforcement (“ICE”), but also HBO and his entire U.S. team. While Angulo may ultimately be able to salvage his career in his native Mexico, his situation begs the question of what it takes, other than a serious medical condition or an immigration infraction, for an internationally-born or based boxer to be banned from boxing in the United States. Angulo was an easy call, indeed the federal government did not even leave it to any athletic commissions' discretion, but the legal and regulatory issues facing other notable boxers based outside of the United States today, who could otherwise be granted visas to fight and train over here, may not provide similarly clear outcomes. Indeed, boxers like the late Edwin (El Inca) Valero have been allowed to enter the United States only to be banned by specific commissions. Using New York law as a backdrop, an analysis of whether the recent legal and regulatory problems of several notable overseas boxers could result in their inability to be licensed in the United States follows...

For the complete article, please click on this link.

Posted By : Paul Stuart Haberman

Polygraph = Anti-Corruption Tool?

Message posted on : 2011-01-13 - 10:43:00

Does the polygraph (aka lie detector machine) have to potential to be used as an anti-corruption tool in sports? According to a recent Guardian article by Andy Wilson and Rob Bagchi, the answer appears to be "yes." The plan was hatched after reports of match-fixing in the sport of cricket.

The news column caught my eye because I suggested something similar in a recent paper regarding possible bias by NBA referees. In relevant part, I wrote the following:

In the absence of collaboration in the form of direct evidence, the prima facie showing could be rebutted by an innocuous explanation. The analysis here merely lends itself to the formation of a rebuttable presumption. Without more, such analysis is uncorroborated. A subsequent investigation that includes personal interviews, polygraph tests, or the like would be necessary to conclusively ascertain whether any insidious conduct occurred.

Including such a "polygraph provision" in any league-union CBA would be unlikely, but may be an option if corruption ever reaches this level, as reported by Eric Pfanner of the New York Times in the context of European soccer.

Posted By : Ryan M. Rodenberg

Mark Conrad's The Business of Sports (second edition)

Message posted on : 2011-01-12 - 17:07:00

Congratulations to Sports Law Blog contributor Mark Conrad on publication of the second edition of his book, The Business of Sports.

This second edition is 100 pages longer, with added discussion on contemporary issues on labor, international sports and intellectual property and media. Mark's book is excellent - it's clear, organized, and has a ton of useful information. I've used it in a number of my writings.

Check out the Amazon page for The Business of Sports.

Posted By : Michael McCann

Should MLB adopt a Rule that Limits Innings Pitched by Young Pitchers?

Message posted on : 2011-01-11 - 15:42:00

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

* * *

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

* * *
Personally, I think one of the benefits of teams shutting down a young pitcher after he throws a certain number of innings is that it is a bright-line rule and takes the matter out-of-the-hands of the pitcher's manager, whose incentives may be short term and thus not always match those of the pitcher or general manager. Of course, the decision to shut down a pitcher is a team-based and not league-based decision, with some teams--and their managers--more protective of their pitchers than others.

So a thought: should the MLBPA try to collectively bargain a bright-line rule with the owners that would institute a league-wide limit on the number of innings thrown by a young pitcher, depending on his age?

Such a rule would surely attract criticism, especially since young pitchers, like all pitchers, are not equally susceptible to injury. For example, physically larger pitchers seem to be more durable than smaller guys, while pitchers with certain kinds of windups cause their arm more tension. A bright-line could consider a player's height/weight, but more likely it would only consider his age and number of innings pitched. Alternatively, instead of innings pitched, the rule could be based on pitches thrown - the same idea (and drawbacks) would be there.

Whatever a bright-line rule on innings pitched lacks in nuance and player-specific accuracy, it might still save some careers. It would also ensure that young pitchers don't fret about criticisms that they're more worried about their arms' health than their teams' success -- it wouldn't be the pitchers' choice, after-all, they would have to shut down after throwing a certain number of innings.

Posted By : Michael McCann

Jets and Brett Favre hit with Sexual Harassment Lawsuit

Message posted on : 2011-01-05 - 22:44:00

The troubles of the Jets continue. Two massage therapists have filed a lawsuit claiming that they lost their jobs after complaining about "sexually suggestive text messages" from Farve while he was on the Jets in 2008.

I was interviewed yesterday by Maggie Gray of Sports Illustrated Video to discuss:

Posted By : Michael McCann

Special Master Hearing on whether NFL breached Collective Bargaining Agreement in TV Contracts

Message posted on : 2011-01-04 - 17:29:00

University of Pennsylvania Law Professor Stephen Burbank, the Special Master of the NFL for grievances with the NFLPA, began a hearing today in New York City for a grievance filed by the NFLPA. The NFLPA alleges that the NFL breached its fiduciary duties under the CBA by -- according to the NFLPA -- taking less from TV networks for broadcast contracts in exchange for the guarantee that the NFL would be paid by those networks in 2011, regardless of whether there is a league lockout. The NFLPA characterizes the NFL's contract strategy as "lockout insurance" and claim that it contradicts the CBA. The NFL, in contrast, argues that it did not breach any duties and, moreover, that it has discretion in its business decisions for broadcast contracts. If the NFLPA wins, it would provide added motivation to NFL owners to agree on a new CBA before the current one expires on March 4.

I was interviewed by Public Radio's Marketplace show this morning to discuss the hearing - for an interview transcript and link to audio, click here.

Posted By : Michael McCann

Sugar is Sweet

Message posted on : 2011-01-02 - 19:04:00

A few facts to follow up on the post by Michael on the suspension of five Ohio State Football players. Thankfully, the Coach did allow the players to participate in the Sugar Bowl on the condition that the juniors agreed to return to the school for their senior year rather than throw their hats in the NFL lottery ring. How charitable.

That Coach Jim Tressel recently had his contract extended for two years so he can continue to earn $3.5 million annually from The Ohio State University, a tax-exempt state university and recipient of millions of dollars in state and federal funds.

Speaking of tax exempt status, I am glad to report that the Sugar Bowl Foundation is a 501(c)(3) organization, making your contributions tax deductible. The CEO of the foundation, Paul Hoolahan, receives annual compensation of $645,386 for his fine work.

For playing in this great game, Ohio State receives about 17 million dollars.

Now you know why the NCAA was so upset about these kids besmirching such charitable endeavors by accepting those free tattoos.

Posted By : Alan C. Milstein

Red Sox Re-Sign Hideki Okajima, client of Sports Law Blog's Joe Rosen

Message posted on : 2011-01-02 - 11:52:00

The Boston Red Sox have re-signed 35-year-old lefthanded-relief pitcher Hideki Okajima, whom Joe Rosen of Orpheus Sports and Entertainment - and Sports Law Blog - represents.

Congrats to Joe on negotiating the contract for Okajima, who was an all-star in 2007 but who struggled at times last year. Given the Sox's recent acquisitions of Carl Crawford and Adrian Gonzalez, along with an improved bullpen, Okajima has a legitimate chance of winning another World Series ring.

Posted By : Michael McCann

Was Suspended Ohio State's QB Terrelle Pryor in the Right or Wrong?

Message posted on : 2011-01-01 - 12:29:00

Stefanie Loh of the Patriot News examines the five game suspension of Ohio State quarterback Terrelle Pryor and several other players for selling their championship gear and pocketing the profits - a violation of NCAA rules but, from the players' standpoint, a way of obtaining the fruits of their otherwise unpaid labor.

She interviews Geoff and me for the story. Here's an excerpt:
All season, the waters of college football have been muddied by stories of student-athletes breaking rules by trying to make money or receive benefits that, per NCAA rules, they are not eligible for due to their amateur status.

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

* * *

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

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

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

I went on to say that another response -- though not a complete solution -- would be for the NFL, NBA, and WNBA, and their respective players' associations, to collectively-bargain a lowering of their age/experience eligibility restrictions. Here are the current rules:
  • The NBA requires that U.S. players be 19-years-old and one-year removed from high school.
  • The WNBA requires that U.S. players be four-years removed from high school or at least 22-years old.
  • The NFL requires that players be three-years removed from high school.
Those rules are applied in all cases and make no exceptions for a young player's extraordinary talents (i.e., there is no Lebron exception) or his/her financial hardships.

Lowered eligibility would mean that college football and basketball players who would be drafted if they were eligible could then leave college (or not go to college) and pursue those leagues and thereby earn income for their labor. These are the same players who, because they are the best, presumably generate the most fan interest and are thus the most deserving of gaining compensation for their services. To be sure, some of these players would prefer to attend/remain in college, develop their games, and obtain a college education - the choice, though, would be theirs.

None of this is to say that other college student-athletes don't deserve to be paid for their athletic achievements, but if only some can be paid, it would seem that players who are 1) good enough to turn pro and 2) would turn pro but can't because of arbitrary age limits should be first in line.

Posted By : Michael McCann

A Lesson Learned

Message posted on : 2010-12-30 - 11:49:00

In what is usually one of the slowest news weeks, a controversy rages over President Obama's reported conversation with Jeffrey Lurie, the owner of the Philadelphia Eagles, praising the franchise for giving Michael Vick a chance to perform after serving a twenty-three month prison sentence for dog fighting and related charges.

Peter King of Sports Illustrated, who had reported the conversation, is amazed at the reaction, tweeting recently (and inappropriately hilarious) that “this story has longer legs than Giselle,” referring to Giselle Bundeschen, the wife of Tom Brady, Vick's main rival for this year's MVP vote.

Fox News, the new standard-bearer for right wing craziness, spent much of Tuesday berating the President for his support of Vick. Tucker Carlson, filling in for Sean Hannity, actually opined that Vick “should have been executed” for his crimes. This from the Sarah Palin Network in love with the candidate who gloried in the shooting of a caribou for no other purpose than higher television ratings.

Michael Vick's story is well known. Perhaps less publicized are the appalling facts about imprisonment in America. Currently, more than 7 million people are either in prison, on probation or on parole in the United States, which amounts to 1 in 18 adult males, more than four times the per capita rate in England, eleven times in a country like Norway. Of these, 70 % are people of color. Of those released from prison, about one third end up accused of another crime within three years.

Whatever one thinks of Michael Vick's crime and punishment, his rehabilitation and maturation following his release can be a lesson in ethics. It should be a source of inspiration for the idea that people can change for the better and make much of their lives even after serving time. As a society, we can learn how to forgive those who have confronted their past and paid for their sins. The President was right to applaud the Eagles for their offer to Michael Vick and those who have criticized the President are wrong.

Posted By : Alan C. Milstein

FIU wins Sports Law Blog Bowl

Message posted on : 2010-12-27 - 07:24:00

That was quite a game, with a lot of everything--multiple comebacks and apparent game-changing plays by all units on both teams, gutsy coaching (major props to Toledo Coach Tim Beckman for going for two and the win rather than playing for overtime), a hook-and-ladder to convert a 4th-and-17, and a game-winning-as-time-expired field goal. Oh, and too much instant-replay. I still am not sure that a commitment to an FBS football program is the best use of resources for a small, cash-strapped public university. But I watched the game very much as a fan--frustrated and mumbling about what-if when I thought we had blown the game, exultant when the kick split the uprights.

And again, I love Tony Packo's.

Posted By : Howard Wasserman

Golf and the Law

Message posted on : 2010-12-24 - 10:30:00

The New York Times published an interesting story a couple of days ago exploring the relationship between golf and the law. The story comes on the heels of a recent decision by the New York Court of Appeals holding that golfers assume the risk of injury from errant golf shots. Here is a snippet:
Ever since people have trod meadows and moors intent on striking hard white balls with bottom-weighted clubs, people have been suing one another for shots gone awry. Golf has evolved into the perfect litigation machine, beloved by lawyers, perhaps because so many are making a good living filing suits, defending suits and providing advice on injuries, course and product design, environmental damage, discrimination and almost anything that could conceivably find its way into a courtroom.

The entire story is available here.


Posted By : Nathaniel Grow

Boom! Class Action Lawsuit Certified against Electronic Arts - publisher of John Madden Football

Message posted on : 2010-12-23 - 23:47:00

http://www.gamespot.com/news/6285811.html?tag=latestheadlines%3Btitle%3B5


Posted By : Michael McCann

I would have gone with "F-E-E-T, Feet, Feet, Feet"

Message posted on : 2010-12-22 - 22:50:00

Alan beat me to the punch. What struck me was the potential for some very interesting cheering-speech issues at this game; this is the sort of thing that fans will be unable to resist. How are the Bears and the NFL going to handle the inevitable signs, t-shirts, chants, etc. that are going to be about feet, foot fetishes, FOOTball, "Can I smell them," and everything else that this type makes possible for obnoxious and possibly drunk fans? What if (as one blogger suggested) the PA folks plays "Footloose" when the Jets take the field?
Posted By : Howard Wasserman

Is getting a tattoo a "benefit"?

Message posted on : 2010-12-22 - 22:10:00

As if 10% unemployment and the loss of two Congressional seats weren't enough, Ohio-ans now have to deal with the news that some of "the" Ohio State University's star football players, including last year's Rose Bowl MVP Terrelle Pryor, may miss this year's bowl showdown with Arkansas. According to the Columbus Dispatch, a number of players, including Pryor, are under investigation for receiving free tattoos.

NCAA Bylaw 16.02.3 prohibits student-athletes from receiving "extra benefits" not offered to the general public from university employees and boosters:
“An extra benefit is any special arrangement by an institutional employee or a representative of the institution's athletic interests to provide a student-athlete...a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes...is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution's students...on a basis unrelated to athletics ability."
Here, the athletes' tattoos were supposedly provided by Columbus parlor "Fine Line Ink." Presumably, the expansive definition of booster would sweep in the shop in question.

Although it seems these players will get to watch the game from the hotel, there are two possible lines of defense. First, is getting a tattoo, which one will surely regret years from now, really a benefit? (OK, probably). But is it a benefit not available to the general public. According to Fine Line Ink's myspace page, free tattoos are available to anyone willing to host a tattoo party:
Call and ask us how you can get a free tattoo for hosting a party at our place or yours! Invite all your friends, for food, drinks, and Tattoos & Piercings! Some restrictions apply call shop for details.
So maybe this was a "party"?

Coach Jim Tressel no doubt regrets being so sanguine the last time Terrelle's ink made the news.

Posted By : Geoffrey Rapp

T-O-E-S Toes Toes Toes

Message posted on : 2010-12-22 - 17:44:00

Let me first confess I am an old Baltimore Colts fan (Diner era) and still hate the Jets for embarrassing us in 1969. But this is just too much to hold in.

First we saw Strength Team Coach Sal Alosi and the Gang of Four, standing toe to toe, trying to keep the Punt team's gunner from returning to the field of play and then tripping him. Such behavior eclipsed Spygate as the worst case of sportsmanship in recent NFL history.

Now we have Toegate with the Head Coach of those same Jets supposedly starring in a series of YouTube videos demonstrating deep admiration for his wife's extremities. What next? I know I always write about the need to judge professional athletes by their work on the field, accepting that they are as flawed as the rest of us outside the lines. But for the life of me, I never expected to see something like this. It's not exactly unethical. In fact, I don't know what to call it. Let's just say it gives new meaning to what Football is all about.

Posted By : Alan C. Milstein

No Country For Old Football Coaches?

Message posted on : 2010-12-22 - 14:07:00

Are older college football coaches being fired, or not hired, in part because of age? This is a topic that Stewart Mandel writes about in an SI.com column. Here is an excerpt:
* * *

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

* * *

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

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

* * *

To add to Stewart's discussion, the Age Discrimination in Employment Act protects people 40 and up from discrimination due to age. I would be interesting in knowing 1) if coaches' termination settlements (fired coaches usually get about half of their remaining salary) include release of age discrimination claims in exchange for payment; 2) whether there is any empirical support for a finding of age discrimination; and 3) whether the EEOC has looked into this subject. Might not be a bad topic for a student looking for a law review/journal note topic.

Posted By : Michael McCann

AALS Section on Law and Sports Panel Discussion

Message posted on : 2010-12-21 - 16:22:00

For those attending the 2011 Association of American Law Schools (AALS) Annual Conference in San Francisco next month, the Chair of the Section on Law and Sports, Ed Edmonds, has announced this year's panel discussion:


American Needle v. NFL and the Single Entity Defense:
A New Frontier for Sports and Antitrust Law


January 8, 2011
3:30-5:15 PM

Section on Law and Sports
Yosemite C, Ballroom Level, Hilton San Francisco Union Square


Moderator:

Edmund P. Edmonds
, Notre Dame Law School


Speakers:

Gabriel A. Feldman, Tulane University School of Law

- Author of The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense, 2010 WISCONSIN LAW REVIEW (2010)


Michael A. McCann, Vermont Law School

- Author of American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE LAW JOURNAL 726 (2010)

- Author of The NBA and the Single Entity Defense: A Better Case? 1 HARVARD JOURNAL OF SPORTS AND ENTERTAINMENT LAW 40 (2010)


On May 24, 2010, the United States Supreme Court issued its eagerly anticipated decision in American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010). In a unanimous decision authored by Justice Stevens, the Court reversed and remanded the Seventh Circuit's opinion regarding the licensing of the NFL's intellectual property. The case involves a fundamental question of whether or not the National Football League is a single entity, and, as such, exempt from attack under Section 1 of the Sherman Antitrust Act. The Court held that the league, through its separate corporation NFL Properties, was involved in concerted action when it granted an exclusive license to one vendor, and, thus, not categorically insulated from a Section 1 challenge. The case presented the Supreme Court with an opportunity to clarify its decision in Copperweld Corp. v. Independence Tube Corporation, 467 U.S. 752 (1984).

Posted By : Michael McCann

Sports Law Blog honored as Top 50 Business Professor Blog

Message posted on : 2010-12-21 - 13:38:00

Bschool.com, a leading online resource for MBA programs, has named Sports Law Blog one of the 50 Best Business Professor Blogs. We appreciate the recognition!
Posted By : Michael McCann

IsTonight's Bears-Vikings Game Too Dangerous?

Message posted on : 2010-12-20 - 12:03:00



Posted By : Michael McCann

Catching up with Links

Message posted on : 2010-12-20 - 09:01:00

* Ropes and Gray's Fall/Winter issue of Sports Law Today has an excellent feature article by Andrew Hohenstein on the recent Boston College Law Review symposium that delved into legal issues as the NCAA turns 100 years old. The issue has similarly impressive articles by David Mindell and Joseph Polniak on California's Student-Athletes' Right to Know Act; Daniel Adams and Matthew Bryon on rouge agents; and Christopher Conniff and Ned Sebelius on minimizing the impact of off-field activities.

* I also recommend reading Proskauer and Rose's recent issue of Three Point Shot, which includes an article on Jim Brown suing Electronic Arts for misappropriation in the Madden football game, which features "historic" teams. Rick Karcher has blogged about the Jim Brown litigation.

* Jimmy Golen of the Associated Press has an interesting piece on the NFLPA telling its members to save payments because a lockout seems likely. Jimmy raises a particularly compelling point that hasn't received a lot of attention, but could becoome hugely important considering how many injuries NFL players suffer: NFL owners are threatening to discontinue the players' health care during a lockout. Keep in mind, though, Article XLIX of the league-union's CBA says that benefits should be continued through the plan year. "Period of Benefits: Subject to the extension provided in Section 2, players will continue to receive the benefits provided in this article through the end of the Plan Year in which they are released or otherwise sever employment."

* Brian Baxter of AM Law Daily has an insightful read on various sports law issues, including a lawsuit over ownership of the phrase "ultimate fighting":
Enter Ubisoft Entertainment, one of the world's largest video game companies. In November, the French company stepped into the octagon with its latest offering--Fighters Uncaged, which allows players to become the "ultimate fighting weapon" in a world of underground street fighting. Ubisoft now faces a lawsuit filed by UFC over the use of the words "ultimate fighting," . . .
*A former student of mine, Andrew Delaney, has helped launch the Supreme Court of Vermont Law Blog, which is already providing solid analysis of Vermont legal issues. Andrew is co-founder of the National Sports and Entertainment Law Society and recently posted on SSRN a copy of his article "Taking a Sack: The NFL and its Undeserved Tax-Exempt Status".

* Justin Ross (Indiana University) and Robert Dunn (West Virginia University) have posted on SSRN a piece from a few years back that is still quite relevant and interesting: "The Income Tax Responsiveness of the Rich: Evidence from Free Agent Major League Baseball All-Stars". Their key conclusion: there is "evidence that the wages of this subset of players do adjust to offset the burden of state income taxes, specifically a 1% decrease in net-of-tax rate leads to a 3.3% increase in salary."

* Jeff Levine and Bram Maravent have posted on SSRN a copy of their article "Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season?"

* Libby Sander of the Chronicle of Higher Education has a good piece on the NCAA considering a national pro-sports counseling panel. The NCAA is drawing heavily on research and analysis found in"Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment ", an article recently published in the Cardozo Arts and Entertainment Law Journal and authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).

* Not sports law, but if I'm an NFLPA agent, I think I'd be less inclined to direct one of my clients to play for Tom Coughlin after he berated his punter, Matt Dodge -- who admittedly made a terrible mistake by not kicking the ball out of bounds -- at mid-field following yesterday's Giants historic collapse at the hands of DeSean Jackson, Michael Vick and the Eagles.

Obviously, Dodge made a mistake, but there were many mistakes by other Giants players and Giants coaches that contributed to yesterday's loss (for instance, why did no one tackle Jackson?). I think coaches should try to avoid further embarrassing players who are already very embarrassed - the game was over and everything Coughlin said to Dodge could have been said in the locker room. Lecturing an NFL player like he's 12-years old, in front of tens of thousands of people, just makes a coach look bad.

Posted By : Michael McCann

Sports Lawyers in Action: How Katten Muchin Rosenmann Counsel Assisted White Sox in Internal Kickback Probe

Message posted on : 2010-12-18 - 13:11:00

My good friend and former law school classmate, Bryan Stroh, is among several Katten Muchin Rosenmann lawyers profiled by the American Lawyer and Law.com for their legal counsel to an internal investigation by the Chicago White Sox into kickbacks for Latin American agents who directed clients to the White Sox. Tim Epstein blogged about this emerging scandal last month.

Here's an excerpt from Brian Baxter's Law.com article:

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

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

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

* * *

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

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

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

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

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

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

To read the rest of this excellent article, click here.

Posted By : Michael McCann

More on the Legality of the BCS: The Consumer Welfare Issue

Message posted on : 2010-12-17 - 09:45:00

Following up on last week's discussion regarding the legality of the BCS under antitrust law, there is one additional defense that can be asserted by the BCS that warrants some consideration. Specifically, in recent weeks BCS Executive Director Bill Hancock has argued that the BCS does not violate antitrust law because it does not harm consumers. In other words, the BCS alleges that it, at most, results in the six major BCS Conferences harming their rivals (i.e., the non-automatically qualifying, so-called non-BCS Conferences), but does not diminish competition overall. As a result, because consumers have not themselves been harmed, the BCS argues that it does not violate federal antitrust law.

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

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

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

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

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

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

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

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


Posted By : Nathaniel Grow

Institutional Failures: Duke Lacrosse

Message posted on : 2010-12-16 - 13:10:00

I am happy to announce publication of Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, a collection of essays on the Duke controversy just published by Ashgate (and available on Amazon and in supermarket check-out aisles). Contributors include Angela Davis (American), Sam Kamin (Denver and a former GuestPrawf), Robert O'Neil (Virginia), KC Johnson (Brooklyn College, History), Ellen Staurowsky (Ithaca College, Sports Management and Media), Jane Kirtley (Minnesota, Journalism and Law), Craig LaMay (Northwestern, Journalism), and Rachel Smolkin (USA Today).

Doing this book was a great experience, as well as an educational one. I learned that editing chapters is, in some ways, harder than writing things yourself, because you have to balance and preserve multiple voices. I also learned a lot about organizing an edited volume, in particular the need to over-solicit chapters and to see the big picture in advance when finding contributors and seeking chapters on particular issues. I do think the final product tells the full story of the Duke mess from a number of different perspectives and a number of different disciplines, which is what I was hoping to do.

And hey, just in time for holiday shopping.

Posted By : Howard Wasserman

Will the NBA Players' Association Decertify?

Message posted on : 2010-12-16 - 12:00:00

Maggie Gray of Sports Illustrated Video interviews Ian Thomsen and me about the possibility of the NBPA decertifying.
Posted By : Michael McCann

New Book Publication: Reversing Field: Examining Commercialization, Labor, Gender, and Race in 21st Century Sports Law

Message posted on : 2010-12-16 - 09:18:00

Congratulations to West Virginia University College of Law Professors andre douglas pond cummings and Anne Marie Lofaso on publication of their new book Reversing Field: Examining Commercialization, Labor, Gender, and Race in 21st Century Sports Law.

Here's a description:
Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.
I contributed a chapter to the book and it was titled Using Social Psychology to Evaluate Race and Law in Sports. Other contributors include: Ronald Althouse, Dr. Julian Bailes, Deborah Brake, Dana D. Brooks, Sherri Burr, Todd J. Clark, David Cornwell, andre douglas pond cummings, Timothy Davis, N. Jeremi Duru, Leonard J. Elmore, Stacey B. Evans, John Fisher, Bernard Franklin, William B. Gould IV, David C. Hardesty Jr., Jeffrey Hirsch, Floyd Keith, Marlon LeBlanc, Anne Marie Lofaso, Alfred Mathewson, Cyrus Mehri, Barbara Osborne, Andre L. Smith, Bethany Swaton, Kenneth Shropshire, and Dennis Walsh.

Here are some additional related links:

Watch the 2007 Symposium that inspired this book.
Watch a Vidcast about this book.
Watch an Interview with andre douglas pond cummings about this book.
Watch an Interview with Anne Marie Lofaso about this book.

Congrats again to dre and Anne Marie!

Posted By : Michael McCann

Sports Ethics

Message posted on : 2010-12-14 - 19:04:00

In the flotsam and jetsam of the world of sports, and sports law, ethical issues arise more and more frequently. Any particular sport is by definition governed by the rule of law or, more precisely, the rules of the game. But we know as lawyers that ethics -- a moral code of what is right or permitted and what is wrong or forbidden -- and rules or laws are not always the same thing. While our system of laws is ideally based on what we as a society believe is right and just, not all moral precepts find their way into statute books. To cite but one example: only three of the Ten Commandments are actually against the law.

Similarly, the rules in our games don't always include what we know to be moral or righteous behavior, or good sportsmanship. Competitive sports at the highest level seem to favor the Lombardian view that “winning is the only thing” throwing aside the old adage that what matters is “how you play the game.”

In just the last few year or so, we have borne witness to a variety of events tinged with ethical implications: the life stories and travails of Reggie Bush, Michael Vick, Maurice Clarett, Marion Jones, Ben Johnson, Cam Newton, Barry Bonds, and Roger Clemmons, the whole performance enhancing drug mess, Tim Donaghy's confessions about reffing in the NBA, Derek Jeter's overly dramatic tomfoolery at the plate, Belicheck's spygate, Armando Galarraga's perfect behavior in the perfect game that wasn't, the feigning injury ploy used by more than one opponent of the fast moving Ducks of Oregon, Jason Werth's money is all that matters choice to play for the lowly Nationals, Cliff Lee's money is not everything choice to come home to the Phils, and most recently the outrageous behavior of Sal Alosi on the sideline of the J E T S Jets.

In some sports like baseball, a certain amount of cheating is tolerated, even encouraged, in basketball athletes seemingly on every play claim they were fouled or never fouled. In golf, of course, sportsmen still police themselves, readily admit to wrongdoing, keep their own score and assess penalties on themselves when the rules require it. Yet only in football, sometimes the most brutal of games, is there actually a penalty for “unsportsmanlike conduct.”

What do we want to see from these folks inside and outside the lines? Must they show us honor and integrity or should they “just win, baby”? Most professional athletes, after all, fit the description Rick Blaine gave in Casablanca when asked what kind of man Captain Renault was: “Just like any other man, only more so.” All as human as humans can be.

Posted By : Alan C. Milstein

Professor Edward Zelinsky on Tax Considerations and Cliff Lee's deal with the Phillies

Message posted on : 2010-12-14 - 11:10:00

Professor Edward Zelinsky, a distinguished tax law expert at Cardozo Law School, checks in with some thoughts on Cliff Lee's decision to sign with the Phillies for 5-year, guaranteed $120 million (instead of signing with the Yankees for 6-years, guaranteed $132 million, or the Rangers for 6-years, guaranteed $138 million -- both the Yankees and Rangers offered 7th year vesting options, too):

* * *

Cliff Lee's decision to go to Philadelphia is interesting from a state and local tax perspective. It had appeared that Lee's choice was between the Yankees (in a state with some of the nation's highest state income tax rates) and the Rangers (in a state with no state income tax). Presumably, the Yankees' bid was designed to offset some or all of the tax disadvantages of playing in New York.

The Phillies confronted essentially the same tax competition with the Rangers as did the Yankees. Pennsylvania is a high tax state in which to live and work. The City of Philadelphia has been among the most aggressive municipalities taxing nonresident athletes for the days they play in Philadelphia.

The obvious lesson is that taxes aren't everything. The sublter lesson is that the Phillies likely paid more for Lee than they would have had they been located in a low tax state and think they will recoup in ticket sales or other revenue streams the extra amounts they pay Lee because of the Pennsylvania tax burden. Thus, in the final analysis, that burden likely falls on the fans.

Posted By : Michael McCann

Legal Consequences of Jets assistant coach Sal Alosi tripping Miami Dolphins DB Nolan Carroll

Message posted on : 2010-12-13 - 00:24:00

If you were watching the Jets-Dolphins game this afternoon with 3:11 left in the 3rd quarter, you witnessed a disturbing incident that speaks terribly of the Jets organization and could lead to fines and possibly even legal action. While on punt coverage, Dolphins rookie corner back Nolan Carroll was intentionally tripped by Jets strength and conditioning coach Sal Alosi.

After the game, the 33-year-old Alosi owned up to intentionally tripping Carroll: "I made a mistake that showed a total lapse in judgment. My conduct was inexcusable and unsportsmanlike and does not reflect what this organization stands for."

What will happen? A few things:

1) Alosi will likely be fined and suspended by the NFL under the league's Personal Conduct Policy, which though normally associated with NFL players, actually covers NFL team employees, as well. Expect the suspension to last the remainder of the season. Not only was Alosi's move a complete cheap shot, it was also dangerous: he could have seriously injured Carroll, who seemingly had no way of knowing that a Jets coach would try to trip him. Sure, Carroll was on notice that he might be tackled by a Jets player on the field, but since when do assistant coaches try to trip you while you're running near the sideline? Alosi was also really cowardly - it would be one thing if a Jets player dished out a cheap shot, because he would do so knowing that there could be retribution. But a Jets coach who does so is safely on the sideline, away from any harm.

2) The Jets may also be fined by the NFL. Like respondeat superior/vicarious liablity with an employer and employee, the Jets are responsible for their coaches. Was this a one-time stupid decision by an assistant coach, or was head coach Rex Ryan aware that Alosi might do something like this?

3) Alosi could be fired by the Jets, though his apology probably helps him there. If he has a pattern of misconduct, though, then a firing may be more justifiable.

4) Carroll suffered a knee injury from the tripping; he limped off the field. If the injury proves serious, he could sue Alosi for battery (intentional harmful contact) and also the Jets under a vicarious liability claim. There's a famous case usually taught in sports law classes called Hackbart v. Cincinnati Bengals, the take-away from which is that while NFL players assume the risk of on-field injuries by playing NFL football, they don't assume all risks, including those for clear cheap shots. If Alosi's move wasn't a cheap shot, I don't know what is.

Update: Bruce Allen of Boston Sports Media Watch examines "Who Ordered the Jets 'Sideline Wall?'". Here's an excerpt:

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.

Bruce may be on to something and I have a feeling this controversy won't be going away quickly. Keep in mind, if the Jets broke rules in ways that endangered the safety of opposing players, the penalty could be worse than what the Patriots received for "Spygate" (where they engaged in some videotaping that broke rules -- Bill Belichick was fined $500,000 and the Patriots had to forfeit a 1st round pick). Endangering player safety seems worse than taping other team's signals.

Posted By : Michael McCann

A Different Take on the Legality of the BCS

Message posted on : 2010-12-10 - 10:00:00

In the spirit of a little good-natured debate, and because I ultimately come out differently on the merits of the issue, I thought I'd take the time to offer a few counter-arguments to Mike's thoughtful commentary yesterday regarding the legality of the Bowl Championship Series.

To begin, though, I agree with a lot of what Mike wrote. For instance, I agree that the BCS can credibly argue that it has created several pro-competitive benefits, such as the creation of a national championship game. I also agree that an antitrust suit against the BCS would itself be unlikely to directly result in the creation of a playoff (although I do believe that a verdict against the BCS would ultimately pave the way to the NCAA adopting a playoff).

However, where I differ from Mike is that I do not think that the pro-competitive benefits created by the BCS would necessarily save the system under antitrust law. Specifically, as Gabe Feldman's excellent 2009 law review article illustrates, when applying the rule of reason most courts would not only balance the system's pro- and anti-competitive effects, but would also (for better or worse) consider whether the BCS's pro-competitive benefits could be similarly achieved via less restrictive, alternative means. In other words, courts would ask whether the BCS could create the same pro-competitive benefits in another way, one that doesn't carry the same anti-competitive ramifications.

For example, I have previously argued that the BCS can be accused of violating antitrust law by unequally distributing its revenue to the disadvantage of the non-automatically qualifying, so-called "non-BCS Conferences." Notably, following last season, the BCS distributed at least $18 million in revenues to each of the six BCS Conferences, while the five non-BCS Conferences collectively received a total of only $24 million, despite two non-BCS schools (Boise State and TCU) having been selected to participate in BCS bowl games. Should a group boycott claim be asserted against the BCS on this basis, the creation of a national championship game is unlikely to save the BCS under the rule of reason, because a plaintiff could easily argue that this same pro-competitive benefit could be obtained in a less restrictive system, one where all BCS participants are rewarded equally (or, at least, more fairly) for their participation, regardless of their membership in a BCS Conference. Therefore, because I believe that the BCS is unable to point to a pro-competitive benefit that could not likewise be obtained via less restrictive, alternative means, I believe that it fails to satisfy the rule of reason.

Also, while I agree with Mike that the use of computer ranking systems in the BCS would normally support the legality of the current system, in this case I think that that benefit is mitigated by the questionable reliability of the BCS's computer systems. In particular, as Jeff Passan and Dan Wetzel (authors of the must-read "Death to the BCS") have pointed out, the BCS's computer rankings fail to account for margin of victory, an omission that renders them of highly questionable merit, and has actually resulted in several prominent statisticians calling for a formal boycott of the BCS. The omission of margin of victory most directly impacts schools from the non-BCS Conferences, who generally have to rely on beating lesser competition by significant margins as evidence of their competitive strength. Moreover, just this week several errors resulting from computer miscalculations were discovered in the final BCS Standings, highlighting the lack of safeguards and transparency in the present system.

Similarly, while I also agree that maintaining the significance of the regular season in theory provides a strong pro-competitive argument in favor of the BCS, one can argue that the BCS on balance actually detracts from the regular season for several reasons. First, in the BCS-era major conference teams have become increasingly less likely to schedule challenging regular season, non-conference games, for fear of sustaining a crippling early season defeat. More significantly, though, the BCS renders the vast majority of Division I football games irrelevant to the national championship race, including any late-season games not featuring one of the handful of teams still in the title race.

Finally, Mike also notes that the BCS could defend itself from a claim that it unfairly discriminates against the non-BCS Conference teams by arguing that the current selection process and revenue distribution policies simply reflect the current competitive landscape, in which demand is higher for games involving BCS Conference schools. Indeed, University of Nebraska chancellor Harvey Perlman has himself made this very argument in defense of the BCS. The problem with this argument is that over the last few years BCS bowl games involving schools from non-BCS conferences have actually generated higher television ratings and stadium attendance than some BCS games involving only BCS Conference schools. Most notably, the TV ratings for last year's showdown between non-BCS schools Boise State and TCU in the Fiesta Bowl outdrew the Orange Bowl (featuring two BCS Conference schools) by a significant margin. In any event, this defense by the BCS would also likely succumb to the less restrictive alternatives inquiry, in that the BCS could obtain all of its current pro-competitive benefits under a system in which each conference is rewarded for its own individual contributions. In other words, rather than categorically awarding each of the six BCS Conferences one large sum of money, while giving the non-BCS Conferences a significantly smaller sum, the BCS could instead individually assess the respective contributions of the various participating conferences when deciding how to distribute its revenue. This year, such a system would undoubtedly award a greater share of the pie to third-ranked TCU and its Mountain West Conference than unranked UConn and the Big East Conference. Under the BCS's current revenue distribution policies, though, the Big East will likely take home more than twice as much revenue from the BCS as will the Mountain West Conference.

Therefore, while reasonable minds can of course differ, I believe that on balance the current BCS does in fact violate antitrust law. That having been said, given the unpredictable nature of the jury trial process, I admit that the outcome of an antitrust suit against the BCS would be far from certain.

For more on these (in my mind) fascinating issues, be sure to check out Mike's forthcoming law review article "Antitrust, Governance, and Postseason College Football," and my own "Antitrust & The Bowl Championship Series."

Posted By : Nathaniel Grow

Is the BCS Legal? New SI.com column

Message posted on : 2010-12-09 - 15:58:00

I have a new SI column on the legality of the Bowl Championship series. Here's an excerpt:

* * *
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.
To read the rest, click here.

Posted By : Michael McCann

MMAdness - Issues Surrounding the Legalization of Mixed Martial Arts in NY

Message posted on : 2010-12-08 - 23:51:00

Wednesday, January 26, 2011

Location: New York County Lawyers Association Building, 14 Vesey Street, New York, New York

Time: 6:00pm

Confirmed Speakers: Kurt Emhoff, Esq., attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager, and Paul Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee. More speakers to come from both sides of the debate, stay tuned!

Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.

Sponsor: EMIPS Committee of the New York County Lawyers Association
FREE

RSVP: dlamb@nycla.org

Posted By : Paul Stuart Haberman

NBPA Calls for End to Age Requirement

Message posted on : 2010-12-08 - 15:45:00

This afternoon ESPN.com reported that the National Basketball Players Association has called for an end to the league's age requirement. This is an interesting development on a few fronts:

First, as we know from the case Clarett v. Nat'l Football League, some courts have found that sports leagues' age requirements are immune to antitrust challenge as long as they are collectively bargained with the union. Thus, if the NBPA no longer consents to an age requirement, it will become easier for a prospective NBA player to challenge the age requirement under Section 1 of the Sherman Act. (For more on this point, see Michael McCann's article on the legality of age restrictions in the NBA and NFL, and my article on the same general point under both U.S. and EU law).

Second, as I have suggested in a forthcoming law review article, sports unions that agree to an age requirement may face some risk of a lawsuit under labor law's duty of fair representation. By seeking to remove this age requirement, the NBPA reduces their risk.

Finally, the NBPA's change of position on an age requirement signals it may play hardball in the upcoming round of labor negotiations with the league.

Posted By : Marc Edelman

Bowl Battle for Sports Law Blog

Message posted on : 2010-12-05 - 22:14:00

The Golden Panthers of FIU, Sun Belt Conference champions, will play the University of Toledo Rockets in the Little Caesars Bowl in Detroit on December 26. As you know, I teach at FIU; my co-editor, Geoff Rapp, teaches at Toledo.

Is another food wager in the offing? May I propose stone crabs and key lime pie as the food of South Florida.

Posted By : Howard Wasserman

Qatar? Is FIFA for Real?

Message posted on : 2010-12-04 - 10:18:00

My thoughts about FIFA's decision to award the 2022 World Cup tournament to Qatar range from the quixotic to the outright illogal. Would any business setup up operations in a place where there are excessive temperatures, little infrastructure, small population and which was criticized in a technical report questioning the feasibility of 12 stadiums in a 20 mile radius? FIFA sue did.


Not to mention the allegations of corruption exposed by undercover reporters from the Times of London accusing two members of the organization's Executive Committee who allegedly offered to sell votes. And the allegations of good old-fashioned horse-trading whereby Qatar would vote for Spain-Portugal (who lost the 2018 bid to Russia) it those countries would vote for Qatar in 2022. Although suspended by FIFA's "ethics panel" (yes, the organization has such a body), no other actions were taken.


Let's think of the logistics. How will hundreds of thousands of fans tranverse this small country. The presentation (found on YouTube here) boasts of water taxis taking fans to the stadiums. It speaks of air conditioning in the stadiums (but what about getting to the facilities?). The computerized designs look impressive, and with the billions of petrodollars at hand, Qatar will no doubt engage in a spending spree to produce a lavish event.


Yet, rejecting the U.S. bid so resoundingly, with a 14-6 vote, makes one wonder about governance and transparency. FIFA's governing statutes (found here) make for interesting reading for what they do not say rather than what they say. Surprisingly general, the statutes and accompanying disciplinary regulations

Posted By : Mark Conrad

Gender Eligibility Rules in Golf

Message posted on : 2010-12-02 - 14:00:00

Earlier this week, LPGA members voted to remove the "female at birth" eligibility rule from its bylaws. The rule change comes on the heels of a federal lawsuit filed in October 2010 by Lana Lawless. Doug Robson provides a comprehensive overview of the Lawless case and other gender-related issues in his latest USA Today article. As sports law historians will remember, there is some precedent on the issue of gender eligibility in sports - Renee Richards v. United States Tennis Association, 93 Misc.2d 713 (1977). In the case, plaintiff Richards prevailed and earned the right to compete as a female in professional tennis tournaments, including the U.S. Open.
Posted By : Ryan M. Rodenberg

Cam Update

Message posted on : 2010-12-01 - 22:57:00

Well, the verdict is in and the NCAA agreed with my earlier post that it should not punish the son because the father may have broken some rather serious rules. Not everyone is pleased. Gene Wojciechowski of ESPN writes in an article titled “NCAA spins fairytale fodder” that this has opened up “loophole chaos” and that “The NCAA, for all its countless, mind-boggling rules, is apparently useless when it comes to a father trying to sell his son.”

Come on, now. The NCAA is no slouch when it comes to enforcing its endless set of hypocritical regulations. But it simply found no evidence that either Cam Newton or anyone at Auburn knew anything about the alleged scheme or did anything wrong.

We still know precious little about what went down here. Supposedly, a pastor at a poor church in disrepair through a former player at Mississippi State offered to steer his son to that program in exchange for $180,000. The school didn't bite. The son enrolled at Auburn, which was never asked to contribute to the ailing church, and he became the leading candidate for the Heisman while leading the team to the BCS Championship Game where he will earn Auburn millions of dollars. Now that's a story.

I still say the NCAA did the right thing here. Amazingly. But why? Was it to follow the wisdom of Ezekiel—and me—about not punishing the child for the sins of the father? Or was it to protect the product which at this late date needs Auburn and the best player in the country in its showcase title game? Maybe Wojciechowski knows.

Posted By : Alan C. Milstein

Should Bud Selig be Fired? *(by Marquette Law School)*

Message posted on : 2010-11-29 - 08:48:00


At the Adjunct Professor Blog, Mitchell Rubenstein (St. John's) rebukes the Marquette School of Law for retaining MLB Commissioner Selig as an Adjunct Professor. The Marquette press release is here. Prof. Rubenstein writes:
I think this is a total disgrace to law professors and am disappointed in Marquette Law School. No doubt Mr. Selig is an accomplished professional and no doubt that he can be an asset to any school by an occasional lecture about some of his experiences. But it is quite another thing to teach a class to students learning to be lawyers and to evaluate students, i.e., grade them. Law school is not business school and I am sorry to say that this appears to be a publicity stunt by Marquette Law School.
The position of an adjunct professor is certainly the most precarious at most law schools (other than that of the dean), so some angst at this hire is understandable. Adjunct professors -- practicing lawyers, typically, who join the faculty to teach one class (or two) -- serve at the pleasure of the Associate Dean for Academic Affairs, without the security of tenure or a long-term contract. They are relatively poorly compensated (rarely, I would guess, earning their hourly billing rate for time spent), yet engage in heavy-lifting activities like writing exams and grading student papers. Yet because they also have full time jobs in practice, they miss out on many of the speakers, workshops, and other activities that add to the joy of law teaching. To the extent that Prof. Rubenstein's blog speaks for adjuncts, his chagrin at any reduction in the qualifications for such teachers is possible to understand.

Yet the degree of criticism here seems extreme. First, to the extent that the critique is based on Selig's lack of qualification to grade students, it seems that he will be co-teaching a class with full-time Professor Matt Mitten. My guess is that Prof. Mitten, certainly qualified to do so, will be doing most (if not all) of the actual grading in the course.

Prof. Rubenstein also objects to a non-lawyer teaching legal classes. My personal view on this is that diversity in instruction is beneficial to all kinds of students, including law students. While bar exam courses should probably be taught only by faculty with legal experience and education, upper level electives like Sports Law may give students a better educational experience if those with real industry experience are involved. Selig has supervised labor negotiations, imposed discipline under a CBA, and no doubt hired hundreds of thousands of dollars worth of legal services. Would there be any objection to an accountant teaching a class on accounting to JD students? Or an M.D. teaching a class on medicine for lawyers? In my view students can learn a lot from someone who has hired lawyers.

Posted By : Geoffrey Rapp

More on Cameron Newton

Message posted on : 2010-11-27 - 13:43:00

Isaac Newton's Law of Gravitation holds that every massive particle of the universe attracts every other massive particle. To state it another way, or according to Cam Newton (no relation), “When God be blessin', the devil be messin'.”

For perhaps the most gifted quarterback to come out of the NFL farm system in a decade, both of these principles mean that success breeds a flurry of rumor mongerers, two-bit accusers looking for their five minutes of fame, and former coaches with axes to grind all intent on bringing down the latest star in the mythically pristine world of college athletics. And one other unlikely culprit: the vaunted New York Times.

It was the Times that first published the attack piece on Maurice Clarett in the off season after Clarett helped Ohio State win the National Championship. It was this article that snowballed into the NCAA investigation, culminating in Clarett's suspension from Buckeyes football, his need to try to enter the NFL early, and his ultimate downfall. In that article, the Times was outraged that freshman Clarett was allowed to retake a midterm when his African American history professor insisted that he do more than skate through classes without learning the material.

Six months ago, the Times wrote no less than three major articles exploring whether Kentucky basketballer and first round draft pick Eric Bledsoe had really deserved a good grade in his Birmingham, Alabama high school Algebra II class. This article also prompted an NCAA investigation as well as one conducted and paid for by the Birmingham School Board, both of which cleared Bledsoe of any shenanigans.

Now the New York Times claims “credit,” along with ESPN, for “breaking” the Cam Newton story in which, so far, no one has proven anything resembling the alleged impropriety had actually happened. Indeed, the Times has already been taken to task for reporting that one of the key whistleblowers in the case had talked to one of the accused principals when at least one of the parties now denies that took place.

I don't know what happened to cause Newton, Cam not Isaac, to attend Auburn as opposed to Mississippi State. I do know the story reported by the Times makes no logical sense though I recognize people sometimes act illogically against their best interests. Mainly, I am troubled by an institution like the New York Times spending its resources and energy in trying to out college athletes, kids really, toiling in a system we all know to be the pinnacle of hypocrisy.

Posted By : Alan C. Milstein

Sins Of The Father

Message posted on : 2010-11-26 - 12:55:00

The sports-law world may be about to undergo a debate of biblical proportions.

Auburn, the number two team in the land and, Cameron Newton, its Heisman leading quarterback are, as most of you know, the subjects of investigations both within and outside the NCAA. Cameron Newton's father, a pastor at Newton, Georgia's The Holy Zion Center of Deliverance, is accused of possibly conspiring with a former Mississippi State football player to solicit a $180,000 payoff in exchange for delivering his son unto the Mississippi State football program. Pastor Newton, whose congregation supposedly was in desperate need of funds to refurbish its time-worn church, denies the charges as does a former football player. No one suggests either Auburn or Cam Newton knew anything about these alleged acts, even if they prove to be true.

Current NCAA Commandments hold such conduct to be mortal sins justifying excommunication or worse for everyone involved.

The question is an old one: should the sins of the father be held against the son. The bible itself is split on the issue. Exodus 20:5 speaks of “a jealous God, punishing the children for sin of the fathers . . .” Three books later, at Deuteronomy 24:16, we learn: “Fathers shall not be put to death for their children, nor children for their fathers.”

What shall it be then? Even if the allegations prove true, and those who know Pastor Newton say he is a good man who would never participate in such unholy activities, do we punish the gifted son, if he was indeed an innocent, for the acts of the wayward dad? I think not. We should listen to the Prophet Ezekiel at 18:20: “The son will not bear the punishment for the father's iniquity.”

Posted By : Alan C. Milstein

Cheering speech, again

Message posted on : 2010-11-24 - 20:52:00

The Cavs, the NBA, and the Cleveland Police Department are taking steps in preparation for LeBron James' return to Cleveland on December 2. These include trying to limit the anti-LeBron messages fans chant, wear, and display:

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

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

Note the imprecision in this all--is it about profanity and decency or is it about disrespect (and what constitutes disrespect for James and his family? What makes something "inappropriate"? Why shouldn't fans have some leeway to harshly criticize a person they see as a traitor to the city? I am not sure who owns/operates the Cavs' arena, so this may be a moot point as far as the First Amendment is concerned. But I will be interested in hearing how this plays out.

Posted By : Howard Wasserman

Sportsmanship, ethics, and cheating

Message posted on : 2010-11-21 - 21:27:00

I generally do not care for the work of Selena Roberts (formerly of The Times, now of Sports Illustrated). She was one of the worst of the Mike Nifong apologists during the Duke lacrosse case and she pushed the "maybe-they-didn't-commit-rape-but-it-doesn't-matter-because-they-hired-a-stripper-so-they-deserved-what-happened-to-them" line even after. Her SI columns see few shades of gray in the world.

Her latest morality play comes from Connecticut high school football. The coach at Southington High got hold of the opposing team's coded play list, which had fallen off a player's armband during first half. The coach used the play list (how many times seems to be in dispute) during the second half to alert his players to what the opposing team was going to run. Southington won 28-14 (the game had been tied at the half). The coach is D.J. Hernandez, a former UConn captain and the brother of Aaron, who plays tight end for the New England Patriots. Hernandez was suspended for one game. The Connecticut Interscholastic Athletic Conference is reviewing the case. Roberts insists that a forfeit is required. And she takes a parting shot at one CIAC member, who is quoted as saying "It's what we call ethics between coaches and good sportsmanship; I don't believe it's cheating per se."

But did Hernandez cheat? First, I am not sure how much of a role it really plays. Teams often know what the other team is going to run or what their plays are--sometimes through good scouting and game preparation, sometimes because of movement between coaching staffs. Recall the Bucs players claims that they knew exactly what the Raiders were going to run during Super Bowl XXXVII--Tampa coach Jon Gruden previously had coached the Raiders. And, of course, "stealing signs" is part of baseball. This is not precisely the same, obviously. But the "advantage" Hernandez's team gained (knowing what plays were being called) is one that often is sought and gained within the rules of the game.

Cheating to me implies breaking rules. In the absence of a prohibition on using the other team's found play list, this does not seem like cheating. Yes, it is bad sportsmanship and probably unethical--not the kind of behavior we would like coaches to engage in. Roberts compares this to NBA players flopping on charges, or Derek Jeter pretending to be hit by a pitch, or Reggie Bush pushing Matt Leinert across the goal line--all of which Roberts sees as examples of society's (and sport's) moral decline. Actually, I find what Hernandez did worse than any of these, as a matter of sportsmanship. Not sure why--maybe because players cannot get away with any of that if the officials are doing a decent job of calling games in the moment. Hernandez was not going to be caught at this by an official on the ground. So, Roberts is right that we should hope for better from coaches, especially at the high school level. And we could have fun with this question in a game of Scruples. On the other hand, this is far from the greatest ethical/sportsmanship breach in history.

But Roberts wants Southington to forfeit its win, a punishment that seems excessive, because it suggests a level of wrongdoing that, absent a clear prohibition on the conduct at issue, is not present here.

Posted By : Howard Wasserman

"Law and Economics" - Sports Edition

Message posted on : 2010-11-19 - 14:39:00

The Southern Economic Association ("SEA") annual conference starts tomorrow in Atlanta. Of the 100+ sessions being held during the three day event, four sessions are devoted to sports. In the course of preparing for my own presentation, I perused the other sports-related papers and was struck by the relatively large number with legal overtones. Legal and quasi-legal topics to be examined using an economic lens include: (i) gambling; (ii) Title IX; (iii) minimum age rules; (iv) crime; and (v) referee-decision making. Such prevalence evidences the strength of both disciplines (law and economics) when analyzing important sports issues. Several papers being presented at the SEA conference are available for download now on SSRN.
Posted By : Ryan M. Rodenberg

My new Boston College Law Review Article on the BCS and Postseason College Football

Message posted on : 2010-11-18 - 12:10:00

I just posted on SSRN a free copy of my forthcoming article in the Boston College Law Review titled, "Antitrust, Governance, and Postseason College Football." Here is the abstract:
This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.
Hope you have a chance to check it out. For another take on this topic, be sure to read Nathaniel Grow's excellent forthcoming article in the Harvard Journal of Sports and Entertainment Law titled "Antitrust and the Bowl Championship Series."

Posted By : Michael McCann

A New Perspective on the NBA Age Rule

Message posted on : 2010-11-17 - 06:32:00

In the course of updating my research file and wrapping up a statistical sequel to my 2008 paper about the NBA age rule, I came across a new law review article in the St. John's Law Review by Susan McAleavey. In the article, McAleavey introduces an "alternative" to the NBA current rule - a spendthrift trust system. It has been over a decade since I took Wills, Trusts, and Estates as a 2L, so I had to dust off my Black's Law Dictionary and refresh my memory about the special characteristics of spendthrift trusts. Such trusts are defined as follows:

A trust that prohibits the beneficiary's interest from being assigned and also prevents a creditor from attaching that interest.

McAleavey has a multi-pronged argument supporting her position. I recommend reading her work, especially Section III of the article, which is novel and clever. I plan on citing her article moving forward.

There is a lot of academic research on the topic of minimum age rules in sports (links to several such articles here). The issue will be one of several hot-button topics negotiated by the NBA and NBPA in their upcoming collective bargaining sessions.

For micro-updates on the legality and efficacy of age eligibility rules in sports over the course of the next few months as I work on several papers in this research line, feel free to follow me on Twitter at (@sportslawprof). I am presenting a quantitative analysis of the WTA age rule at the Southern Economic Association conference this weekend in Atlanta and look forward to feedback and constructive criticism as the paper is vetted.

Posted By : Ryan M. Rodenberg

Reverse Engineering a Doping Allegation

Message posted on : 2010-11-13 - 06:26:00


In a wide-ranging interview last week, recently retired tennis pro Christophe Rochus made a number of statements about doping. Such commentary is nothing new. Athletes and others affiliated with sports often make vague, generalized statements about doping without implicating anyone specific. In rare cases, athletes such as Jose Canseco and Floyd Landis actually name names. In an op-ed that was published in the Los Angeles Times, Michael Shermer explains the "game theory" reasons for such specificity.

Rochus's allegation falls somewhere in between the two extremes. In relevant part below, here is what Rochus said:

"I remember a match against a guy whose name I will not say. I won the first set 6-1, very easily. He went to the bathroom and came back metamorphisised. He led 5-3 in the second set and when I came back to 5-5...his nose began bleeding. I told myself it was all very strange."

Rochus makes a point of not naming names, but his insinuation is detailed enough to allow one to attempt to "reverse engineer" his statement and pinpoint specific matches (and opponents) that meet his parameters. Interestingly, Rochus doesn't state whether he eventually won or lost the match in question. In addition, he doesn't state whether the match was two, three, four, or five sets long (Grand Slam tournaments and Davis Cup matches use a "best of five" format while all other pro-level tournaments use a "best of three" format). Nevertheless, a perusal of his playing record from 1993 to 2010 reveals 11 matches that possibly match his description. Of the 11 matches, he won seven and lost four. All four losses took place in the past three years. However, publicly-available online match records do not include details on the sequence of individual games within each set, making it impossible to pinpoint the match(es) in which Rochus was trailing 3-5 in the second set before recoving to 5-5. As such, this attempt at reverse engineering Rochus's statement failed to result in anything definitive. However, with tennis and a majority of other sports spending a lot of resources on their anti-doping efforts, such methodology could be helpful the next time someone makes a "partial" allegation pertaining to drug use and doping authorities proceed to conduct a due diligence follow-up in an attempt to find some actual evidence in support of the claim.

Posted By : Ryan M. Rodenberg

3 K's for Kickbacks: White Sox are Latest Team with Troubles in Latin America

Message posted on : 2010-11-12 - 11:47:00

In another chapter in MLB's simmering baseball kickback scandal, a Federal grand jury 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.



Posted By : Tim Epstein

Are NBA fines tax deductible? Lamar Odom takes on the IRS

Message posted on : 2010-11-10 - 11:03:00

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

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

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

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

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


Posted By : Michael McCann

Top Five Sports Lawsuits

Message posted on : 2010-11-08 - 17:19:00


Shaun Assael of ESPN has a good article (subscription required) highlighting "five lawsuits that will change sports." Sports Law Blog's Mike McCann and Gabe Feldman are both quoted. The article also has links to actual court documents in each case. Recommended reading!

Posted By : Ryan M. Rodenberg

U.S. Department of Justice Weighing Antitrust Suit Against the BCS

Message posted on : 2010-11-04 - 12:00:00

The Salt Lake Tribune is reporting that Utah Attorney General Mark Shurtleff, a long-time critic of the Bowl Championship Series, met yesterday with officials from the U.S. Department of Justice regarding a potential antitrust suit against the BCS. Following the meeting, Shurtleff said he was "blown away" by the government's due diligence on the issue, and found it hard to imagine a scenario where either the state or federal government did not file suit against the BCS. He noted however that he believed the DOJ would be best positioned to challenge the BCS in court, not only due to the likely cost of such a suit, but "because AGs from around the nation often represent the major universities in their states and it is the college presidents who make up the BCS."

For more on Shurtleff's meeting with the Justice Department, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article.

Posted By : Nathaniel Grow

New York Law School Second Annual Sports Law Symposium

Message posted on : 2010-11-03 - 17:00:00

I look forward to being a part of next week's sports law symposium at New York Law School. Here are the details (and outstanding work by 3L Alycia Huckabey, the founder and president of the New York Law School Sports Law Society, in putting this event together):


The New York Law School Institute for Information Law and Policy and the

New York Law School Sports Law Society proudly present:

The Second Annual Sports Law Symposium


Date: Friday, November 12, 2010

Location: New York Law School, 185 West Broadway, Events Center, 2nd Floor

CLE Credits: 1 CLE credit per panel (no charge). Available to transitional and experienced attorneys.


1:15 p.m. – 2:15 p.m. – Hot Topics in Sports


Moderator: Mark Conrad Associate Professor, Law and Ethics, School of Business, Fordham University and New York Law School Adjunct Professor


Lisa Stancati – Assistant General Counsel, ESPN

Chris Park Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball

Andrew Bondarowicz President, Aregatta Group, Inc.



2:30 p.m.–3:30 p.m. - From American Needle to Age Limits to Dress Codes: Key Labor and Antitrust Issues in the NBA and NFL


Moderator: Michael McCann Sports Illustrated Legal Analyst, Professor of Law, Vermont Law School


Mike Zarren - Assistant General Manager and Associate Team Counsel, Boston Celtics

Marc Edelman Assistant Professor of Law at Barry University's Dwayne O. Andreas School of Law

Alan Milstein Counsel, Sherman Silverstein



4:00 p.m.–5:15 p.m.- Breaking Into the Sports Industry


Moderator: David Soskin – Assistant Counsel, ESPN


Andrew Fine Director of Marketing and Broadcasting, RLR Associates

Sarah Stuart – Senior Counsel, Reebok

Bobby Marks – Assistant General Manager, New Jersey Nets

Katherine Salisbury – President, Friedman & Salisbury Sports Management LLC

Andy Latack Business Affairs Executive, CAA Sports


Networking Reception 5:15 p.m. -6:30 p.m.


Please RSVP by Friday, November 5, 2010 to naomi.allen@nyls.edu.


Posted By : Michael McCann

Video of Boston College Law Review Sympsoium on the NCAA at 100 Years

Message posted on : 2010-11-03 - 12:00:00

Video of the panels below can be found at this link.

The NCAA at 100 Years:

perspectives on its past, present, and future

Sponsored by the Boston College Law Review

and by:

Ropes and Gray

On October 15, 2010, Boston College Law School and the BC Law Review hosted an all-day symposium examining the legal issues surrounding the unprecedented growth of the NCAA over the last 100 years and the impact on amateurism, academic standards, and student rights.

The symposium featured a special lunchtime program during which Roy Kramer, Former Commissioner of the SEC and Founder of the BCS and Matthew Sanderson, Executive Director of PlayoffPAC, a federal political action committee dedicated to the establishment of postseason championship for college football, discussed postseason football, the BCS and the National Championship. Jeremy Schaap of ESPN moderated the session.

Video from the event is below.

NCAA Lunchtime Panel:
Postseason College Football, the BCS, and the National Championship

Roy Kramer, Former Commissioner of the SEC and Founder of the BCS
Matthew Sanderson, Executive Director, PlayoffPAC
Jeremy Schaap, ESPN (Moderator)

_________________________________________________________

Panel I: NCAA and Gender

Nancy Hogshead-Makar, Professor, Florida Coastal Law School
Erin Buzuvis, Professor, Western New England Law School
Deborah Corum, Associate Commissioner, SEC (Commentator)

_________________________________________________________

Panel II: NCAA and Students

Maureen Weston, Professor, Pepperdine Law School
Alfred Yen, Professor, Boston College Law School
Petrina Long, Senior Associate Athletic Director, UCLA (Commentator)

_________________________________________________________

Panel III: NCAA as a Commercial Enterprise

Michael McCann, Professor, Vermont Law School
Joseph Liu, Professor, Boston College Law School
Jon Wertheim, Senior Writer, Sports Illustrated (Commentator)

_________________________________________________________

Panel IV: The NCAA and Constitutional Law

Vikram Amar, Professor, U.C. Davis School of Law
Richard Albert, Professor, Boston College Law School
Gordon Hylton, Professor, Marquette Law School (Commentator)


Posted By : Michael McCann

Unique role (and problem) of faculty athletics representatives

Message posted on : 2010-11-02 - 22:53:00

Interesting story in this week's Chronicle of High Education. One of the contributors to my forthcoming book on the Duke Lacrosse scandal wrote about faculty oversight of athletics (or lack thereof), particularly the conflicts-of-interest that the athletics reps face. These problems contribute to the perception (if not reality) that college sports (and athletes) are out-of-control and unregulated. It was not an issue in the Duke situation, although it arguably is in many other situations of athlete misbehavior.
Posted By : Howard Wasserman

Is Notre Dame Responsible for Student's Death?

Message posted on : 2010-10-30 - 06:24:00

I was interviewed by Maggie Gray of Sports Illustrated Video on Notre Dame student Declan Sullivan, a 20-year-old junior, dying in a tragic accident while filming an Irish football practice earlier this week.
Posted By : Michael McCann

Antitrust Lawsuit Filed Against the NCAA

Message posted on : 2010-10-28 - 12:30:00

As noted by a commenter to an earlier post, a class action antitrust lawsuit was filed against the NCAA on Monday in United States District Court in San Francisco by former Rice University football player Joseph Agnew. Specifically, the suit alleges that NCAA rules prohibiting universities from offering guaranteed multi-year athletic scholarships, as well as rules limiting the number of scholarships a university can offer in a particular sport, violate federal antitrust law.

Agnew started at defensive back for the Owls as a freshman in 2006, before seeing reduced playing time as a sophomore due to shoulder and ankle injuries. Rice then elected not to renew his scholarship for either his junior or senior years. Agnew asserts that but for the NCAA rules, he would have received multi-year scholarship offers when he was recruited out of high school. The suit seeks to represent a class of athletes who, like Agnew, had their one-year scholarships reduced or non-renewed. In its defense, the NCAA immediately noted that one-year renewable scholarships are the norm in higher education not only for athletic scholarships, but also talent-based and academic scholarships in general.

Agnew's lawsuit comes on the heels of news this summer that the United States Justice Department was itself investigating potential antitrust concerns arising from the NCAA's prohibition of multi-year scholarships (previously discussed by Michael McCann here and here). Moreover, as ESPN.com notes, although courts have historically granted the NCAA some leniency when it comes to rules deemed necessary to preserve amateurism, the NCAA settled a case in 2008 brought by former student-athletes alleging that NCAA rules prohibiting colleges from offering to cover the full cost of attendance violated antitrust law.

One interesting tidbit reported by the New York Times is that Agnew is being represented by Steve Berman of the Hagens Berman Sobol Shapiro firm. Berman's firm also represents former Nebraska and Arizona State quarterback Sam Keller in his class action lawsuit against the NCAA and E.A. Sports, alleging that the two entities illegally use college athletes' likenesses without their permission in video games.

Posted By : Nathaniel Grow

An Update on the WAC v. Mountain West Lawsuit

Message posted on : 2010-10-28 - 09:55:00

Last month the Western Athletic Conference filed a lawsuit against the Mountain West Conference, Fresno State, and the University of Nevada, seeking to prevent the two schools from leaving the WAC to join the Mountain West until after the 2011-12 school year. The schools had stated an intent to join their new conference at the end of the current school year, a move that the WAC contended would have violated its conference bylaws, and would inflict significant damage on the remaining WAC schools.

It now appears that the sides have reached an amicable resolution to their dispute. According to reports, the WAC will announce today that it has reached an agreement with Fresno State and Nevada, under which the two schools will wait until the summer of 2012 to join the Mountain West Conference. In exchange, the WAC has reportedly agreed to accept reduced exit fees from the schools upon their departure, lowering the $5 million exit fee down to around $2 million per school.

Posted By : Nathaniel Grow

NY Times on the Sports Fans Coalition

Message posted on : 2010-10-23 - 12:29:00

Today's New York Times features a story on the Sports Fans Coalition, a nonprofit interest group in Washington D.C. formed for the purpose of organizing sports fans and representing their interests in public policy issues. Led by executive director Brian Frederick, the group has initially focused its attention on several issues affecting sports fans, including: "television blackouts (especially at taxpayer-funded stadiums), the Bowl Championship Series and the ballooning cost of attending games. Looming is the possibility of a lockout in the N.F.L. next year." For more on the Sports Fans Coalition, check out its website.
Posted By : Nathaniel Grow

More Antitrust and the BCS

Message posted on : 2010-10-21 - 11:30:00

In a recent interview with Salt Lake City's ABC affiliate KTVX, Utah Attorney General Mark Shurtleff announced that his office has completed a draft antitrust complaint to be filed against the Bowl Championship Series. The article indicates that the lawsuit would allege both illegal monopolization and price fixing claims against the BCS. Shurtleff stated that he will be meeting again shortly with antitrust officials in the U.S. Department of Justice, but maintains that he will file the suit alone if the DOJ elects not to pursue the matter. For more of Shurtleff's interview, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article.
Posted By : Nathaniel Grow

Agents recouping illegal payments?

Message posted on : 2010-10-16 - 22:40:00

People have been talking about this week's Sports Illustrated, featuring a confessional article by former NFL agent Josh Luchs, who admits to paying numerous college players over the years to induce them to sign with him.

One interesting tidbit: Luchs mentions that prior to 1999, the NFLPA had a rule that required a player who had taken money from an agent to repay that money; the rule was changed in 1999. Thus, Luchs says, agents formerly had "the threat of litigation" as an additional incentive for a player to retain that agent for the rookie contract; after 1999, that incentive was gone, making it more likely that an agent might pay college players and have nothing to show for it.

Here is my question (assuming Fuchs' version is accurate): On what legal theory was the agent able to sue that player? There is no contract, so it can't be breach of contract. Plus, any contract would seem to be void as against public policy (of not paying amateur athletes). Maybe unjust enrichment--the players have received (and retained) something to which they are not entitled? But does some idea of unclean hands kick in--the agent is claiming that the player was unjustly enriched by money the agent unlawfully gave him? Is the claim for a breach of NFLPA rules, made enforceable in court?

Does anyone know the details of this old regime? And does anyone know why the NFLPA changed the rule?

Posted By : Howard Wasserman

New Sports Illustrated Column on Tom Hicks post Liverpool Sale to Red Sox owner John Henry

Message posted on : 2010-10-15 - 21:47:00

Here's an excerpt from my new column published this evening:
The prospect of Hicks and Gillett pursuing a successful litigation strategy against RBS and NESV in Great Britain is dim. The London High Court unequivocally found nothing wrong in the RBS-NESV sale and in fact admonished Hicks and Gillett to accept it. While Hicks and Gillett profess a desire to return to the British courts, and while they might obtain new evidence that more favorably portrays their legal arguments, they would still have to overcome two adverse decisions from the London High Court. The odds would be stacked against them.

It is more likely that Hicks and Gillett would turn to courts in Texas, where Hicks resides, and Massachusetts, where NESV is based, to remedy any purported grievances. Both states offer laws that prohibit fraud, breach of contract and similar claims that Hicks and Gillett could allege invalidate actions taken by RBS and NESV. If in fact Hicks and Gillett were denied adequate input in the sale of Liverpool under Massachusetts or Texas law, they could obtain a judgment that contradicts that of the London High Court, thereby leading to a second round of conflicting judgments and choice of law uncertainties. The statutes of limitation for such claims under Massachusetts and Texas laws, moreover, are two to three years, meaning Hicks and Gillett could wait some time to collect evidence and build a case before filing a massive lawsuit in one of those states.

On the other hand, courts in Massachusetts or Texas may be disinclined to interfere with the RBS-NESV transaction now that it has occurred. Generally, courts are more likely to prevent a prospective sales transaction than to reject it ex post facto. Such a rejection in this matter would throw Liverpool into a legal quandary. Then again, Hicks and Gillett could insist that, irrespective of consequences to Liverpool, they are plainly entitled to recovery if they were illegally wronged.

Hicks and Gillett may have another goal in mind by threatening or insinuating a lawsuit: motivating RBS and NESV to agree to a financial settlement that would pay Hicks and Gillett millions to go away and to give up any potential legal claims against RBS and NESV. Keep in mind, even if NESV and RSB are confident in the legality of their actions, they could perceive significant value in gaining a clean and permanent break from Hicks and Gillett; a settlement could also save them millions of dollars in potential legal fees -- millions of dollars that could perhaps be used to sign Liverpool and Red Sox players or otherwise improve those teams.

To read the rest, click here.

Posted By : Michael McCann

Pressure Mounts on the BCS

Message posted on : 2010-10-15 - 09:30:00


The legality of the Bowl Championship Series has been a frequent topic of discussion over the years at Sports Law Blog. Typically, legal criticism of the BCS has centered on whether the system violates federal antitrust law. However, a new line of legal attack was recently asserted against the BCS.

Specifically, last month PlayoffPAC, a political action committee formed in 2009 to advocate for the adoption of a playoff in college football, submitted a report to the Internal Revenue Service challenging the tax-exempt status of the Fiesta, Orange, and Sugar Bowls. The report effectively argues that the three BCS bowls should not be considered Section 501(c)(3) charities in light of the (allegedly) excessive compensation and benefits they give to their executives, as well as their various (and sometimes undisclosed) political lobbying efforts. BCS opponents in Congress have taken notice of the report, urging the IRS to review the allegations. In response, the Fiesta Bowl announced last week that it was undertaking an investigation to determine whether its employees were reimbursed for political donations, a potential felony.

Meanwhile, the BCS is also facing criticism on another front, as Yahoo! Sports columnists Dan Wetzel, Josh Peter, and Jeff Passan have taken aim at many of the common defenses asserted in support of the BCS in their new book Death to the BCS: The Definitive Case Against the Bowl Championship Series. Based on some of the initial reviews, the book is likely to be of interest to anyone following the BCS debate.

Posted By : Nathaniel Grow

New Sports Illustrated Column on Liverpool Sale and Tom Hicks

Message posted on : 2010-10-14 - 20:20:00

I have a new SI.com column on how the Red Sox ownership group is trying to buy Liverpool from a bank that loaned money to former Texas Rangers owners and Liverpool owner Tom Hicks. British and Texas courts have reached contradictory decisions on whether this sale should go through. Which country's courts should trump? Please read the column to find out.
Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2010-10-13 - 17:04:00

Recently published scholarship includes:

Erin Abbey-Pinegar, Note, The need for a global amateurism standard: international student athlete issues and controversies, 17 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 341 (2010)

Constantine J. Avgiris, Comment, Huddle up: surveying the playing field on the single entity status of the National Football League in anticipation of American Needle v. NFL, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 529 (2010)

Jillian Bluestone, Comment, La Russa's loophole: trademark infringement lawsuits and social networks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 573-604 (2010).

Erin E. Buzuvis, Sidelined: Title IX retaliation cases and women's leadership in college athletics, 17 DUKE JOURNAL GENDER LAW & POLICY 1 (2010)

Anthony Cabot, The absence of a comprehensive federal policy toward Internet and sports wagering and a proposal for change, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 271 (2010)

Antonia Cowan, You can't get there from here: IGRA needs reinvention into a relevant statute for a mature industry, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 309 (2010)

Bill Cross, Note, The NCAA as publicity enemy number one, 58 UNIVERSITY OF KANSAS LAW REVIEW 1221 (2010)

andre douglas pond cummings and Seth E. Harper, Wide right: why the NCAA's policy on the American Indian mascot issue misses the mark, 9 UNIVERSITY MARYLAND LAW JOURNAL OF RACE, RELIGION, GENDER & CLASS 135 (2009)

Ross E. Davies, The judicial and ancient game: James Wilson, John Marshall Harlan, and the beginnings of golf at the Supreme Court, 35 JOURNAL OF SUPREME COURT HISTORY 122 (2010)

Matthew Hard, Note, Caught in the net: athlete's rights and the World Anti-Doping Agency, 19 SOUTHERN CALIFORNIA INTERDISCIPLINARY LAW JOURNAL 533 (2010)

Victoria Hayes, Note, Human trafficking for sexual exploitation at world sporting events, 85 CHICAGO-KENT LAW REVIEW 1105 (2010)

Daniel Hauptman, Comment, The need for a worldwide draft to level the playing field and strike out the national origin discrimination in Major League Baseball, 30 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 263 (2009-2010)

Joseph M. Kelly U.S. land-based and Internet gambling; would you bet on a rosy future?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 339 (2010)

Bennett Liebman, The Supreme Court and exclusions by racetracks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 421 (2010)

Jamie Y. Nomura, Note, Refereeing the recruiting game: applying contract law to make the intercollegiate recruitment process fair, 32 UNIVERSITY OF HAWAI`I LAW REVIEW 275 (2009)

I. Nelson Rose, Gambling and the law®: the third wave of legal gambling, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 361 (2010)

Jason Richard Sheppard, Note, The thrill of victory, and the agony of the tweet: online social media, the non-copyrightability of events, and how to avoid a looming crisis by changing norms, 17 JOURNAL OF INTELLECTUAL PROPERTY LAW 445 (2010)

William N. Thompson, Gambling taxes: the philosophy, the Constitution and horizontal equity, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 389 (2010)

Sarah J. Wild, Comment, On equal footing: does accommodating athletes with disabilities destroy the competitive playing field or level it?, 37 PEPPERDINE LAW REVIEW 1347 (2010)

Posted By : Geoffrey Rapp

Favre, Wrangler, and athletes behaving badly

Message posted on : 2010-10-12 - 08:45:00

Michael links to Darren Rovel's column yesterday arguing why Brett Favre's Wrangler ads are still running in the face of the current investigation into his behavior towards a Jets employee when he played for New York two years ago. I am not a Favre fan (and I am really not a fan of fawning media). I really don't care whether Wrangler drops him or not, nor would I be surprised if it doesn't drop him, since athletes have to really misbehave before sponsors begin bailing.

I want to push on the following point, where Rovell says: "But you don't have evidence of adultery and no crime was committed." This, Rovell argues, distinguishes Favre from Kobe Bryant (charged with a crime) and Tiger Woods ("adultery to the hilt," in Rovell's words).


First, by dismissing what Favre allegedly did as "no crime," he overlooks the seriousness of these actions. Assuming Jenn Sterger was unwilling, this is flat-out sexual harassment. Which, while not criminal, is unlawful conduct and a breach of serious federal civil rights rules. Rovell makes the same mistake that I argue David Stern made in the wake of the Isaiah Thomas sexual-harassment verdict--simply writing-off all non-criminal misconduct as not serious and not worthy of league (or sponsor) action. But some social rules are enforced through criminal law and some through civil law; the use of the latter does not necessarily make that rule less important or the breach of that rule less problematic. In fact, I would argue that a player sexually harassing a team employee is more of a problem, and reflects worse on Favre, than getting into a bar fight or being drunk in public (both of which are crimes).


Second, let's be clear about the allegations against Favre. He allegedly propositioned a woman, begged her multiple times to come to his hotel room, and sent her (presumably unwanted) photos of his genitals. And it sounds like the only reason he did not have sex with Sterger is because Sterger was unwilling. I have to say, while technically not adultery, I probably would not still be married if I did that. And I doubt my wife would accept "oh, but there's no evidence of adultery" as an excuse. Rovell draws a line between adultery (Woods) and this non-adultery. But completing the act of cheating on your spouse is not dramatically worse (from a moral or "family man" standpoint) than attempting to cheat on your spouse and failing only because your target was unwilling. Mind you, I don't actually view adultery as an offense against society that warrants league/team punishment or sponsor abandonment. But if you believe that sponsors were justified in dropping Woods, the argument that Favre "never actually had sex with someone other than his wife" does not work as a justification for treating Favre differently (again, assuming the allegations are true).

Posted By : Howard Wasserman

Fallout for Brett Favre's Endorsement Deal with Wrangler

Message posted on : 2010-10-11 - 14:09:00

CNBC's Darren Rovell looks at how Wrangler, which has paid Brett Favre millions for his endorsement and for his appearances in a wide-range of All-American type ads, often with footballs and dogs and pick-up trucks, might respond to allegations indicating that Favre, who has been married for 14 years with two children, may have sent inappropriate messages and photos to another woman.

Here is Rovell:

* * *
I spoke to a couple people yesterday who were surprised that Brett Favre's Wrangler jeans spots were still running. Surprised that he was still on their Web site. They were surprised that Wrangler had no comment.

Well, I'm not. Put yourself in their shoes, or jeans. You have an athlete who you've worked hard to connect to your brand. And, unlike many of the endorsement deals out there, it fits.

Then this story comes along, where Favre might have strongly come on to a woman who was paid to do in-stadium sideline and Jumbotron reporting for the Jets when he played there. There are voicemails and pictures of private parts, allegedly his.

Partly as a result of the media age we live in, these pictures are released to the public. The NFL has to look into it because Favre and the woman he approached, Jenn Sterger, were both paid by the Jets.

But where does that leave Wrangler?

Well, let's say worst-case scenario the voicemails are from Favre and so are the pictures. Maybe Favre's not the clean family man we pictured him to be, but there's nothing there that makes it a natural for Wrangler to sever its deal with him.

If all this is true, is it a put off to his reputation? Sure it is. But you don't have evidence of adultery and no crime was committed. Kobe Bryant lost his endorsement deals because he was charged with a crime (the criminal case was later dropped and the civil case was settled). Tiger Woods lost endorsement deals because he was unfaithful to the hilt. . . .

* * *
To read the rest, click here.

Quick legal point: Should Wrangler seek to get out of its endorsement contract with Favre, the wording of the morals clause in that contract will likely play a major factor. If it is expansively worded--such as covering all types of conduct that is publicly reprehensible, at least as deemed by Wrangler--that helps Wrangler; if it is narrowly worded--such as requiring that the Favre commit a crime--that helps to protect Favre.

Posted By : Michael McCann

University of Baltimore School of Law Symposium "The Death of Amateurism: Implications for Sport and Health"

Message posted on : 2010-10-09 - 11:52:00

Professor Dionne Koller of the University of Baltimore School of Law passes along this announcement of what should be an engaging symposium titled "The Death of Amateurism: Implications for Sport and Health":

Thursday, Oct. 28
Posted By : Michael McCann

ASU College of Law's Sports and Entertainment Law Journal Conference

Message posted on : 2010-10-09 - 11:45:00

Some news from Arizona State University College of Law about an upcoming sports law conference:

This is the first year for the Sports and Entertainment Law Journal at ASU College of Law. This Journal will be launched at a Conference on Saturday, October 30, 2010, entitled, "A-Rod to Jay-Z: Sports and Entertainment Law in the 21st Century." The inaugural edition of the journal will feature articles from Sports and Entertainment Law professionals from across the nation. For more information about this conference, please contact asulaw.selsa@gmail.com.

The Conference will consist of breakout sessions in which speakers will present topics to smaller audiences. Question and answer periods will follow each presentation so that the event is a much more engaging and dynamic experience for our guests.

We will also be holding a silent auction throughout the day, with items such as suite seats to a Phoenix Suns game, signed sports and entertainment memorabilia from stars such as Beanie Wells and Mike Tyson, tickets to various other sporting events and concerts, and much more! Proceeds from the auction will be put back in to the Conference and the inaugural publication of the Journal.

Confirmed speakers and/or authors for the conference include:

Keynote Address:

Presentations:


Posted By : Michael McCann

Everything Duke and lacrosse is not "Duke Lacrosse"

Message posted on : 2010-10-08 - 10:06:00

By now, everyone has heard about the "senior thesis" in "horizontal academics" that a 2010 Duke grad wrote as joke, a spoof thesis presentation describing the performance of thirteen Duke student-athletes (seven of them happened to be lacrosse players) with whom she had sex during her time in school. The New York Times got in on the story today, talking about embarrassed and weary the campus is over another scandal.

I have Duke lacrosse on the brain right now. So I was disappointed, although not surprised, that The Times mentioned the now-almost-five-year-old scandal involving false sexual-assault accusations against the lacrosse players. Much as I was not surprised that everyone talked about the Duke lacrosse scandal in covering the murder of Yeardley Love, a UVa lacrosse player, allegedly by her UVa lacrosse-player former boyfriend.

Will Duke lacrosse ever cease to be a reference point for salacious behavior (I cannot call this 'bad' behavior, because having consensual sex with a number of different people is not implicitly bad behavior and, frankly, neither is talking about it) involving Duke University and/or lacrosse? The seven lacrosse players mentioned in the "thesis" certainly did nothing close to bad or even inappropriate (I'm shocked, shocked, to find that male college students have consensual sex with women, often after an evening of drinking). Why would the paper even mention, in connection with them, an old scandal (none of the current players even were on campus in 2006) involving false accusations of criminal misconduct by a corrupt prosecutor and angry faculty? Even if you believe (as some do) that the lacrosse players five years ago were in the wrong for hiring a stripper, the current still situation still does not come close to that.

Posted By : Howard Wasserman

The McCourt/Divorce Saga: Was a Key Document Altered?

Message posted on : 2010-10-06 - 09:18:00

Over on M & A Law Prof Blog, Boston College Law Professor Brian Quinn takes a look at the divorce between Frank and Jamie McCourt and specifically how a document from six years ago -- three copies of which use the word "exclusive" in it; three use "inclusive" -- could impact whether Frank is the sole or joint owner:
What with clients sending you only signature pages, it becomes very tempting to make a quick little change in a document that no one will notice. They don't notice ... until they do ...

Posted By : Michael McCann

Changes in Free Agency, Tender/Non-tender, and Arbitration Deadlines

Message posted on : 2010-10-04 - 09:55:00

Last Thursday, Major League Baseball and the Major League Baseball Players Association reached an agreement to alter some of the deadlines regarding free agency, tender/non-tender, and arbitration for upcoming negotiations in 2010 and 2011. The agreement grew out of concerns raised by the Players Association about the 2008 and 2009 off-season negotiation periods. Barry Bloom reported on the changes in an article posted on MLB.com, and the Players Association distributed a press release.

Here are some of the changes as gleaned from those two sources:

1. Currently teams have a 15-day period after the end of the World Series to negotiate exclusively with their current players who are eligible for free agency. That period of exclusivity has been reduced to five days.

2. Contracts must now be offered by December 2. The deadline is now before the Winter Meetings instead of the older deadline that feel after the Winter Meetings.

3. Arbitration must now be offered to free agents by November 23 at midnight. This allows a team to maintain its rights to compensation if a player declines by the new November 30 deadline. If a player accepts arbitration, their salary is decided either by salary arbitration or continued negotiations with just that one team. For instance, last year the Twins offered arbitration to Carl Pavano, and he accepted. Pavano has been a key member of the Twins' rotation this year.

4. Players who are eligible for free agency because they have six years of credited service no longer need to apply within a 15-day window. Instead, they will become free agents automatically at the conclusion of the World Series.

The agreement resolves a number of problems that were slated for the grievance and arbitration process that is part of the current Collective Bargaining Agreement. It also seems to signal a positive approach between the two sides prior to the December 11, 2011, expiration of the current CBA.

Posted By : Ed Edmonds

More on choking

Message posted on : 2010-10-03 - 11:13:00

Following on Mike's post about the new book on the science of choking: Prof. Bielock was on Diane Rehm two weeks ago (my wife had told me about the show, but I had not gotten around to the podcast; my plan for this week). Also, the New Yorker covered similar ground in 2000 in a piece called "The Art of Failure" (abstract and registration required). That piece discussed the difference between "choking" and "panicking." The former is what happens when skilled, prepared people lose the ability to perform, in part because they start thinking (and overthinking) about otherwise learned steps. Panicking is what an unprepared or unskilled person does, often involving moving too quickly.

[Update]: I just read an excerpt from Bielock's book; she mentions to New Yorker piece (written, it turns out, by Malcolm Gladwell), but rejects the distinction between panicking and choking. She also offers a definition of choking:
Choking under pressure is poor performance that occurs in response to the perceived stress of a situation. Choking is not simply poor performance, however. Choking is suboptimal performance. It's when you—or an individual athlete, actor, musician, or student—perform worse than expected given what you are capable of doing, and worse than what you have done in the past. This less-than-optimal performance doesn't merely reflect a random fluctuation in skill level—we all have performance ups and downs. This choke occurs in response to a highly stressful situation.

I know Mike is a Sox fan, but I have to let Buckner off the hook as an all-time choke. That was an error. But Buckner was a bad fielder who could not walk and should not have been in the game at that point. The definition above further exonerates Buckner--I am not sure that error was so suboptimal for him. If anything, the bigger choke was by the Sox relievers in the eleven pitches leading up to Buckner's error.

Choking to me requires someone falling from heights and it typically is more than one single play. I would point to Jana Novotna's meltdown in the Wimbledon Women's Final in 1993 or Greg Norman at the 1996 Master's--on the verge of prevailing, their entire games fell apart over a series of plays.

Posted By : Howard Wasserman

The Science of Choking

Message posted on : 2010-10-03 - 10:11:00

Over on The Situationist, Drexel University law professor and good friend Adam Benforado discusses some of the science of choking and a new book out by University of Chicago psychology professor Sian Bielock on that topic.

What is the most infamous example of choking in sports?

I'd have to say it's Bill Buckner in Game 6 of the 1986 World Series between the Red Sox and Mets, when a routine ground ball hit by Mookie Wilson in the 11th inning went through Buckner's legs, leading the winning run to score (the Mets would go on to win Game 7).

The Buckner video can't be embedded in this post, but you can watch it here at MLB.com.

Posted By : Michael McCann

New Article: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment

Message posted on : 2010-10-02 - 08:33:00

A terrific new article in the Cardozo Arts and Entertainment Law Journal has posted on SSRN: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment

The article is authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).

Here is the article's abstract:
In 2008 the National Collegiate Athletic Association (NCAA) launched its national advertising campaign titled “Going Pro in Something Other than Sports.” As a major strategic and branding initiative by the NCAA years in development, this effort seeks to emphasize the academic rather than athletic abilities of collegiate student-athletes. Humor captivates the audience yet it is the campaign's tagline that the NCAA has “over 380,000 student-athletes and just about every one of them will turn professional in something other than sports” that resonates with the viewer. While this declaration is true, and the promotion's purpose is clearly aimed at calling attention to the core purpose of the NCAA, thousands of student-athletes begin professional sports careers every year. Given the complexities of the amateur to professional transition process, coupled with the fact that student-athletes and their families are woefully unsophisticated and unprepared, colleges and universities have done shockingly little to assist student-athletes through this process.

Many of these student-athletes do not make optimal decisions during this process for a variety of reasons, including conflicting and poor sources of information, the lure of professional money and an inability to understand the many complex legal and regulatory issues surrounding the amateur to professional transition. The results of these poor decisions can be dramatic and affect a long list of stakeholders, including student-athletes and their families, colleges and universities, the NCAA, professional sports leagues and players associations and professional advisors.

Although fans are most familiar with the riches and fame of professional athletes, the reality is that such a lofty status is the exception and not the rule. Far more student-athletes end up as hidden victims of this flawed process. The athlete may suffer permanent career and financial harm while his former school may suffer penalties and embarrassment for any misconduct that occurred while the athlete attended the school. Furthermore, the NCAA and/or the professional league with which the athlete is now involved may have to deal with a paying public critical of their operations and constituents.

This article will discuss the existing process for this transition, the problems therein and the urgency with which these problems need to be addressed. Then we will explain why it is in the best interests of all interested parties to improve the system and make recommendations for doing so.

Among our most meaningful recommendations:
• Colleges must enhance their use of Professional Sports Counseling Panels
• Colleges must increase funding for Compliance Offices.
• Colleges must actively participate in the enforcement of the Uniform Athlete Agents Act.
• The NCAA must consider increasing its loan options to student-athletes. The loans can be forgiven if the student-athlete does not break any NCAA rules.
• The NCAA must reconsider its Bylaws as they relate to permissible advisors and prohibited agents.
• The NCAA should create and fund seminars, conferences, and webcasts for student-athletes on the amateur to professional transition.
• The NCAA should consider applying a strict liability standard to Lack of Institutional Control findings in Infractions cases.
• Colleges and the NCAA should develop a for-credit course that educates student-athletes in this process.
• Professional leagues and unions should consider allowing for the punishment of athletes found to have broken NCAA rules.
• Agents and other professional advisors must police their own industry.
To download a free copy of the article, click here.

Posted By : Michael McCann

Andrew Weber Profile

Message posted on : 2010-09-28 - 23:35:00

http://www.norwichbulletin.com/carousel/x1129170086/Tigers-GM-loves-striking-out-naysayers
Posted By : Michael McCann

New article

Message posted on : 2010-09-28 - 23:30:00

New article by Warren Zola

Posted By : Michael McCann

The 4th Annual Tulane Law School National Baseball Arbitration Competition

Message posted on : 2010-09-27 - 16:06:00


I am pleased to announce that the 4th Annual Tulane Law School National Baseball Arbitration Competition will take place in New Orleans on February 10-11, 2011. The event is a great opportunity for students interested in sports law to compete in a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball.

In addition to the arbitration competition, this year's event will feature a mini-symposium where a number of our “celebrity” guest arbitrators will discuss issues impacting Major League Baseball and the sports industry. The lineup of panelists/arbitrators includes (with more to come):
  • Josh Byrnes, Former General Manager of the Arizona Diamondbacks.
  • Carter DeLorme, Partner at Jones Day in Washington D.C., performs salary arbitration work for the Boston Red Sox and Texas Rangers.
  • Jon Fetterolf, Partner at Williams & Connolly in Washington D.C. and baseball agent.
  • Clark Griffith, Attorney and AAA Arbitrator, Former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties

  • Michael Weiner, Executive Director of the Major League Baseball Players Association.

The competition will be capped at 24 teams, so students interested in competing should submit their registration form and entry fee as soon as possible.For more information, official rules, and registration materials, please visit the competition's website.

See you in New Orleans!

Posted By : Gabe Feldman

Adding wildcards to make divisions meaningful?

Message posted on : 2010-09-24 - 15:46:00

It turns out I have even more company in my wildcard-makes-division-races meaningful crusade: Jayson Stark (and apparently Elias and SI's Tom Verducci). Stark, and everyone else, now recognize that when the two best teams play in the same division (Yanks-Rays this year) and both are guaranteed to make the play-offs, the incentive to win the division all but disappears, because the single benefit of home-field advantage is minimally important (Stark points out that the team without home-field advantage wins 50 % of post-season series).

The solution, according to Stark, Verducci, et al., is not to eliminate the wild card, but to add a second wild-card in each league. Now the two wild-cards play some type of play-off (he debates whether it should be a one-game winner-take-all or best-of-three and how it should be structured [Update: Tom Verducci insists it has to be a one-game playoff, not a series]) for the right to move on and play, presumably, the division winner with the best record. Now there is a genuine incentive to win the division--avoiding having to play anywhere from one to three additional games, perhaps without off-days and perhaps without a break between the wild-card series and the Division Series. And, according to Stark, people close to Bud Selig reportedly say he likes the idea.

I am not quite convinced, because it still devalues the division in non-close races. If a second-place team falls far enough behind the first-place team in its division, it turns its attention to teams in other divisions and just has to focus on staying ahead of the non-first-place teams in those divisions. So the "race" is between # 2 in the East and # 2 in the Central--although those teams will not play one another regularly in September, since the schedule is weighted towards intra-division games late in the season, for obvious reasons. Still, anything that gives a real incentive to finish first is a vast improvement.

Posted By : Howard Wasserman

On rewriting history

Message posted on : 2010-09-24 - 15:25:00

Phil Taylor has a piece in this week's Sports Illustrated (I cannot find it on-line) criticizing the NCAA's recent over-reliance on stripping teams and players of wins, records, and awards as punishment for rules violations. He derides the punishment as meaningless and ultimately ineffective symbolism. It is incoherent, because it asks us to disregard our own memories and experiences. We remember Kentucky Memphis losing in overtime in the NCAA Finals in 2008 or Massachusetts making the Final Four in 1996 or Reggie Bush running wild and winning the Heisman in 2005. Yet the NCAA tells us this never happened, even though we know it did. Actually, Taylor points out something that makes this a total farce: The NCAA cannot or will not enforce this penalty beyond its own record books. So while Massachusetts officially did not make the Final Four in 1996, a Final Four banner hangs from the rafters at the UMass arena (the NCAA asked the school to take it down and the school refused). So UMass can, in its physical space, present its own official history, NCAA be damned.


Of course, the problem with this punishment is not that the written record conflicts with our memories. The problem is that the written record becomes our memories over time. As I argued previously, this is an attempt to create an "official" but not "true" or "accurate" historical record, knowing that when collective memories fade (or people die), the official record becomes the true record. One hundred years from now, everyone will "know" that Kentucky Memphis did not play in the 2008 Finals--because that is what the NCAA says. This smacks too much of what totalitarian societies do--creating an "official," government-approved history by formally altering the documentary record and expecting everyone to fall in line with that record.

Yes, this is just sports. But as a matter of intellectual honesty and truth over the course of time, is the NCAA telling us that Kentucky Memphis did not play in the finals in 2008 or that USC did not win all those games in 2005 any different than the Soviet Union telling us that Nikolai Yezhov never stood right next to Stalin in a group picture on the Moscow Canal?






Posted By : Howard Wasserman

Mascot Violence in Ohio: Vicarious Liability?

Message posted on : 2010-09-20 - 15:02:00

On Saturday, the nation's #2 ranked team, Ohio State University, and the non-ranked Ohio University played one another in a clear mismatch. Not surprisingly, Ohio State pummeled Ohio University, at least during the game (Ohio State won 43-7).

Ohio University, however, got some hits in before the game. That was when Ohio University's mascot, Bobcat, twice attacked Ohio State's University, Brutus Buckeye, including during a team prayer. Here's the video

Ohio University has apologized to Ohio State for the incident and also fired the student who was dressed as Bobcat. The student has even been "banned from any further affiliation with Ohio University athletics."

Fair enough; it doesn't appear that anyone was hurt and I'm not sure what else Ohio University could do at this point.

But let's look backward and wonder what could have happened had the student playing Brutus Buckeye been hurt. While he was presumably protected somewhat by his mascot costume, I'm sure he could have been hurt, especially when sucker punched by the other mascot.

If the student was injured, it would seem that Ohio University could have been sued under a vicarious liability theory. After-all, why did Ohio University pick the attacking student to play the mascot? What kind of selection process was used -- were there tryouts, were they other candidates, were any qualifications considered? Also, has this particular student ever shown violent or reckless tendencies? Are there NCAA or individual conference rules or suggestions on selection of mascots, or is that process left entirely to schools? Should it be regulated? Should it be professionalized, like mascots are for pro teams, which hire persons to play mascots?

On the other hand, does a student playing a mascot--like the student dressed as Brutus Buckeye--assume certain risks of injury? But even if he or she does assume some risks, would getting attacked by a fellow mascot really be one of them?

One last point: where was stadium security? Should they have intervened?

Update: in the comments section, Tim and Nathaniel--both, admittedly, grads of Ohio University--point out that mascot fights are not exceptionally unusual so perhaps an assumption of risk defense on the part of their alma mater would have some merit.

Update 2: While none of these are necessarily on-point, we've blogged about mascot and tort issues before. For example, in December 2006, Rick wrote about a lawsuit filed against the New Orleans Saints because its mascot was allegedly negligent in crashing a golf cart into a fourth-string quarterback. In April 2008, Geoff wrote about the Chicago Bulls' mascot, Benny, possibly being negligent in how it high-fived fans. Last but not least (or maybe least), in March 2010, I wrote about the tort implications of flying hotdogs that originate with mascots.

Posted By : Michael McCann

New Sports Illustrated Column on Floyd Mayweather, Jr. Domestic Violence Charges

Message posted on : 2010-09-20 - 09:00:00

I have a new SI.com column on Floyd Mayweather Jr.--who earned $60 million last year in boxing winnings and endorsements--being charged with beating up his ex-girlfriend and threatening to beat up his kids if they called the police. Here are some excerpts:

* * *
According to those authorities, Mayweather did much more than steal a phone during his argument with Harris. He also allegedly pulled her hair, threw her to the floor and threatened to kill her. Just as troubling, prosecutors claim that Mayweather warned his children, Koraun and Zion, that he would beat them if they called the police.

* * *

Mayweather, who has a history of legal woes, would be classified as a repeat offender. In 2002, he pleaded guilty to two domestic violence counts and one battery count. Those counts stemmed from multiple incidents evidencing Mayweather's questionable judgment and violent acts. The primary incident involved Mayweather physically assaulting Melissa Brim, who is the mother of Mayweather's daughter, Ayanna. While Mayweather dodged prison time on that occasion, his guilty plea can certainly be used against him for purposes of sentencing. The fact that Mayweather's alleged offenses include crimes against his children, could also work against him. Acts deemed particularly egregious may be considered aggravating circumstances that compel an elongated sentence.


* * *
To read the rest, click here

Posted By : Michael McCann

What Impact will Ed O'Bannon and Sam Keller claims have on NCAA?

Message posted on : 2010-09-20 - 00:05:00

Paul Ellias of the Associated Press tackles that question in a new article. He interviews Rick and me for the piece. Here are some excerpts:

* * *

A judge earlier this year refused the NCAA's request to toss out the eight lawsuits filed across the country by former student-athletes. They are now consolidated into a single federal action in San Francisco. The former collegiate athletes accuse the NCAA of antitrust violations, alleging they are prevented from marketing their images because the NCAA locked up their commercial rights forever during their college days.

* * *

U.S. District Court Judge Claudia Wilken said the lawsuits, at first glance, appeared to show the NCAA's "conduct constitutes an unreasonable restraint of trade."

Legal analysts said that ruling will compel the NCAA to turn over many of its business secrets to the players' lawyers. No previous lawsuit has advanced to this stage, said Vermont Law School professor Michael McCann, who specializes in sports law. He said even if the players ultimately lose their cases the documents could add further fuel to the debate over compensating student athletes.

"When we see what kind of money is being tossed around and how much money is made off players," McCann said, "it could invigorate this debate. It will hit at the core issues of amateurism."

* * *

All the lawsuits are seeking class action status to represent untold housands of current and former athletes. Antitrust verdicts are tripled.

"If they are successful, it could mean a lot economically in terms of damages," said Rick Karcher, who directs the Center for Law and Sports at Florida Coastal School of Law.

* * *

To read the rest, click here. To read more on O'Bannon's claims, click here; to read more on Keller's claims, click here.


Posted By : Michael McCann

I have company in disliking the wildcard

Message posted on : 2010-09-16 - 21:47:00

In both 2009 and 2007, I criticized the baseball wild card, arguing that it eliminates close races among the top teams in the league, since both will end up in the post-season, in favor of close races among a lot of lesser teams. Turns out I am not alone in this view. Tom Scocca of Slate makes the same argument, pointing out that the intense back-and-forth between the Yankees and Rays (Rays currently 1/2-game up, following a recent Yankees slide) is nearly meaningless, since the loser makes the play-offs as the wild card.

Scocca does something cute here: He shows the would-have-been standings in the pre-1994 two-division set-up. The result: The Yankees and Rays in the AL East fighting for one play-off spot and separated by 1/2-game with 17 left to play and five teams in the NL West fighting for one spot and separated by three games. And both races would be truly do-or-die: Only one team in each division can make the post-season.

Scocca ultimately reaches the same conclusion as me: More teams (and their fans) get into the post-season, but at the loss of truly winner-take-all competition.

Posted By : Howard Wasserman

Marquette University Law School - Sports Law Conference

Message posted on : 2010-09-15 - 15:40:00

Marquette University Law School is hosting its annual conference on October 22, 2010. The title of the event is "The Increasing Regulation of Sports in a Declining Economy." I have attended in the past and highly recommend it. CLE credits are available. The conference website can be found here. Conference panelists include the following:

  • Matt Banker (L'01), Assistant Commissioner for Institutional Services, Ohio Valley Conference, Nashville, TN

  • Mary K. Braza, Partner and Chair, Sports Industry Team, Foley & Lardner LLP, Milwaukee, WI

  • Steve Cottingham, Director of Athletics, Marquette University, Milwaukee, WI

  • Rodney Fort, Professor, Sport Management and Associate Dean for Graduate and Faculty Affairs, School of Kinesiology, University of Michigan, Ann Arbor, MI
  • Jeff Gewirtz, Senior Vice President & General Counsel, NETS BASKETBALL/Brooklyn Sports & Entertainment, East Rutherford, NJ

  • Martin Greenberg (L'71), Managing Member, Law Office of Martin J. Greenberg, LLC, and Member, Southeast Wisconsin Professional Baseball Park District, Milwaukee, WI

  • Greg Heller (L'96), Senior Vice President & General Counsel, Atlanta Braves, Atlanta, GA (Class of 1996)

  • Nancy Hogshead-Makar, Professor of Law, Florida Coastal School of Law, and Senior Director of Advocacy, Women's Sports Foundation, Jacksonville, FL

  • Robert Kaler, Chief Operating Officer & General Counsel, United States Soccer Federation Foundation Inc., Washington, D.C.

  • Robert H. Lattinville, Partner, Stinson Morrison Hecker LLP, Saint Louis, MO

  • Ilhyung Lee, Edward W. Hinton Professor of Law & Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri, Columbia, MO

  • Jim McKeown, Antitrust Practice Chair, Foley & Lardner LLP, Milwaukee, WI

  • Richard H. McLaren, Professor of Law, University of Western Ontario, London, Ontario, Canada, Counsel to McKenzie Lake Lawyers LLP, and Member, Court of Arbitration for Sport, Lausanne, Switzerland

  • William Miller (L'96), Assistant Professor, Health, Exercise Science & Sport Management, University of Wisconsin - Parkside, Kenosha, WI

  • Matthew Mitten, Professor of Law and Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers, Marquette University Law School, and Member, Court of Arbitration for Sport, Lausanne, Switzerland

  • Matt Parlow, Associate Dean for Academic Affairs and Associate Professor, Marquette University Law School, Milwaukee, WI

  • Jill Pilgrim, Principal & Business Counsel, Precise Advisory Group; Chairperson-Arbitrator, Financial Industry Regulatory Authority; President, The Center for The Protection of Athletes Rights, Inc.; Principal, Pilgrim & Associates Law Office (New York, NY and Miami, FL)

  • Marti Wronski, Vice President and General Counsel, Milwaukee Brewers Baseball Club, Milwaukee, WI

Posted By : Ryan M. Rodenberg

WAC v. Mountain West Conference

Message posted on : 2010-09-15 - 08:00:00

ESPN reported yesterday that the Western Athletic Conference has initiated a lawsuit against the Mountain West Conference, California State University-Fresno, and the University of Nevada. The lawsuit relates to this summer's announcement that the two schools were leaving the WAC to join the Mountain West. Fresno State and Nevada both seek to enter the Mountain West starting with the 2011-12 school year. Meanwhile, the WAC contends that the schools are contractually obligated to remain in their current conference until the start of the 2012-13 year.

Specifically, under the WAC's bylaws, schools are supposed to notify the conference by July 1st if they intend to depart the conference the following summer. Both Fresno State and Nevada announced their intended departure on August 18th, but have indicated they would nevertheless like to join their new conference beginning in July 2011. The WAC contends that it would be irreparably harmed if the schools were permitted to leave before July 2012. As stated by WAC Co