There has been a lot of talk about the Tim Donaghy scandal as one of the most serious black eyes any professional sports league has had in recent years. At any point in this process, have you felt at all concerned for the future of the league? Why or why not?"Over on ESPN.com, Henry reveals some of the responses he received, including ones from Dallas Mavericks owner Mark Cuban, ESPN basketball analyst John Hollinger, Portland Tribune columnist Dwight Jaynes, and yours truly.
Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.Bloomberg's Erik Matuszewski and Aaron Kirloff examined this issue as it relates to Michael Vick in an article today. I was interviewed for their story, and I wondered whether the NFLPA--which acquiesced to the new personal conduct policy, although not apparently through formalized collective bargaining--may want to defend Vick's contractual right to attend camp, if for no other reason than to avoid a precedent of players being shut out of work on grounds of an indictment. As I mentioned in the story, "Now we have someone accused of maiming and killing dogs, but let's say there's some less-awful situation in the future?" Not all indictments are the same, of course, and we have examined some of the limitations of an indictment (also examining them is FIU Law Student Adam Wasch in a very good Beacon article), and Rick's reference of James Lofton's suspension and subsequent acquittal is a good one.
Mark concludes his piece by proposing that "if Congress enacts legislation expanding indecency to cable and satellite, let it create a special exemption, a legislative waiver of liability for live sports broadcasts."In the equivalent of a technical knockout, the U.S. Court of Appeals for the 2nd Circuit handed the FCC a stinging defeat when a majority concluded that the agency's 2003 rules expanding the definition of â€œindecencyâ€� and â€œprofanityâ€� to isolated instances known as â€œfleeting expletivesâ€� were â€œarbitrary and capricious.â€� According to the majority opinion in the 2-1 ruling, the commission's explanations did not justify such an expansion. The ruling forced the agency to come up with a more compelling justification, one that the judges doubted the FCC could do.For those radio and television sports rights holders, the specter of six-figure fines for four-letter words resulted in a series of difficult decisions, such as the use of time delays or otherwise â€œsanitizingâ€� the production by avoiding miking to produce as â€œsafeâ€� a broadcast as possible.With the ruling in Fox v. FCC, all broadcasters, but particularly sports broadcasters, can breathe a sigh of relief. Think of the implications if the court had upheld the commission's claim that a fleeting expletive violates indecency and profanity restrictions. Those of us who remember John McEnroe not only recall his tennis exploits, but also his argumentative skills. More than once his protests against officials were laced with profanities, some of which were heard live by millions. If these rants had occurred in 2006 instead of 1986, broadcasters likely would have been sanctioned, to the tune of up to $325,000 per violation under the 2006 Broadcast Indecency Enforcement Act, where Congress raised the maximum fine for an indecency infraction tenfold to $325,000.Let's think of the ramifications of this interpretation in the context of a sports broadcast. What if fans start yelling four-letter words while protesting a call and the public can hear those protests? What if a microphone picks up the sounds of players cursing? Or the game officials? Each of these events, coupled with the increased fines under the 2006 Decency in Broadcasting Act, chills the broadcaster's First Amendment rights, but is discriminatory as well, since cable and satellite programming is not subject to the indecency standards.But sports broadcasters should note that the 2nd Circuit's ruling represents a temporary victory. It did not address the constitutional questions, but rather focused on the lack of evidence for the FCC's conclusions. The court gave the FCC the opportunity to justify the rules. And if the FCC wishes, it may either seek a rehearing in front of the entire body of judges in the federal appeals court or an appeal to the U.S. Supreme Court.
What he uncovered is this: Taxpayers indirectly subsidize athletic departments because college sports are exempt from federal taxes, based on their tie to education. The exemption particularly benefits big schools, which receive up to 40 percent of their athletic revenue from donations, most of which are tax deductible. Critics believe college sports have largely become a business of mass entertainment and should no longer receive an education-based tax exemption, especially in an era of rising tuition and stagnant state support for higher education.Congrats again to Mark, whose work will undoubtedly assist those of us at the newly-formed College Sport Research Institute.
Judges praised Alesia for challenging â€œhow college teams are funded. In so doing, it effectively attacks institutional support and student fees subsidizing college sports. Database work incomparable â€¦ brave work with compelling results.â€�
James Duderstadt, former president of the University of Michigan and now a member of the U.S. Secretary of Education's Commission on the Future of Higher Education, said this coverage is â€œthe most thorough analysis of the financing of intercollegiate athletics I've seen since we asked the Big Ten chief financial officers to do an independent audit of our athletics departments during the 1990s. â€¦ You folks have done a great service to higher education!â€�
Once again the sports community is awash in hypocritical hyperbole as they go out of their way to villanize an athlete for something that has nothing to do with his/her sport.
Millions will change hands this weekend as we shout for blood and will walk away particularly satisfied if one of the athletes gets "retired" permanently one way or another in this weekend's fights, be they boxing, UFC, or other, but we are appalled at the idea that Vick might be "involved" in animal fighting.
I like the comment on the ham sandwich also being indicted. The ham sandwich will surely get off since sports is too filled with hams for them to let one of their own go down for being in the wrong place at the wrong time.
Vick should be smarter and do better and blah blah blah but America loves to put the athlete on an undeserving pedestal, only to noose the statute later on and cheer as it comes toppling down. This is especially true of the overpaid uber minority who was done a favor by our beloved sports system and apparently ungratefully turned his/her back on the great institution. While Vick is certainly ultimately responsible for his involvement on whatever level, the media wildfire is nothing he or we deserve.
That idiotic comment by [U.S. Senator] Robert Byrd, who stood on the floor of Congress, where talk went from America's ongoing daily billion dollar draining foray into Mid-Eastern warfare to sports, to say the hottest place in hell was reserved for Vick and his fellow accused IF they were guilty as charged. Surely the hottest air on earth emanated from his mouth at that time and as the media keeps the heat on Vick it will be another sad day in American sports history if another very talented athlete gets burned for something as moribund as being involved in an activity that is clearly part of American and world culture.
This from a country that kills dogs and other pets by the millions daily, grinds them up with other junk, and feeds them to livestock that people will ultimately eat. The Jungle is alive and well on many fronts as another unwarranted feeding frenzy gets out of hand.
1. Ron Artest, John Green, and the Palace of Auburn Hills. Donaghy was one of the officials calling the infamous "Basketbrawl" game between the Pistons and the Pacers. If he bet on that game (which was a blowout long before fisticuffs erupted), and allowed things to get out of hand in part to protect his wager, he might be on the hook to anyone who has suffered financially as a proximate result of his misconduct. That would include anyone sued as a result of those events.Even those who support relaxing bans on players or coaches betting on their own teams can hardly tolerate an official betting on games in which he may play a decisive role.
2. Rasheed Wallace. Donaghy had a famous interaction with Wallace, in which the player questioned his calls in a post-game shouting match. Wallace was suspended, and if Donaghy had bet on that game, might Wallace legitimately recover his lost wages for the suspension period (assuming there were some)? Might he also recover damages associated with the contribution that this incident may have made to the development of his reputation as a bad apple? Perhaps he would have gotten a higher contract without such a label.
3. Bettors on the other side of the spread. In Nevada, at least, legal bettors on NBA games on the other side of the spread might have some sort of claim against Donaghy for violating the state's gambling laws.
The prosecutor can get an automobile indicted. The prosecutor puts in the witnesses that he wants and then at the end he says, 'Look, here's an indictment, please agree to it. It just requires the grand jury members to find there is probable cause to believe that a crime occurred. Well, probable cause is not much more than a hunch.Sando also interviews Charlottesville, Va., attorney Neal Walters, a regular lecturer at the University of Virginia:
In point of fact, it's incredibly rare for a grand jury not to issue an indictment. It makes good drama on TV, but in that sense, if the U.S. attorney goes to grand jury, it's highly likely they are going to get an indictment.
My former criminal investigations professor, Charles Whitebread, is also interviewed by Sando (some of you may know Professor Whitebread from the BarBri videos, and for those of you taking the bar exam next week, good luck):
For the rest of Sando's column, click here. He also raises a number of good points about how Commissioner Roger Goodell has likely handled this situation well.
The main thing you should watch out for is convicting the guy based on a grand jury indictment,. People hear 'grand jury' and think, 'Oh, what a grand bunch.' They think he's guilty.
KR: When you were the owner versus today, are people more skeptical of the athletes now because of all the stuff that we hear about?I don't agree with the President on many issues, but I think he is right about the All-Star game: it starts too late, at least for those of us on the East Coast. Considering that the game now "counts" for home field advantage in the World Series, I suspect a lot of people would want to watch it but don't.
THE PRESIDENT: Well, it's hard to tell; I don't know. Clearly, the steroid issue has put a cloud over the great sport to a certain extent. I appreciate the fact that the commissioner and the labor man have worked out an agreement to try to win the trust of the fans. Look, you know, I became concerned about it in 2004, and gave a speech at the State of the Union. People said, what is he talking about, why would he want to talk about steroids? And my worry was, was that it would affect younger Americans, as much as anything else, and that's why I put it in there. And then Congress followed up and did some useful hearings.
KR: A lot of people point fingers at your friends, your fellow owners, that they should have known [about steroids]. Is it possible to be as in the dark as some like to think these people were?
THE PRESIDENT: You know, somebody pointed a finger at me at one time, and I thought long and hard about that. And I really don't remember any discussions or any talk around the ownership group, or with the baseball guys at the Rangers, about steroid use in 1993 or before. I just don't remember that at all.
I think owners should know now. I mean, there's been a wake-up call. I know Donald Fehr is obviously working to protect players' rights, and Bud is working to make sure baseball is -- and the labor group works together. But it's going to be very good for baseball when any doubt is removed.
KR: What would you do if you were commissioner? Would you go watch the record-setting home run or try to be there?
THE PRESIDENT: I don't know. I've got my mind elsewhere these days, and so I haven't spent that much time on the subject. I really haven't considered what I would do. I've got -- believe it or not, Karl -- I've got a lot to think about.
KR: You can watch the highlights on "Baseball Tonight."
THE PRESIDENT: Yes, I do watch the highlights on "Baseball Tonight." And I watch those highlights, watch some of the All-Star Game. I'd like to file a complaint, however, with my friend, Selig -- who I believe is doing a great job, by the way. They need to start the All-Star Game earlier. There is a bunch of young Americans who miss it and a bunch of older guys, like me, who can barely stay awake past 9:30 p.m.
KR: How about World Series games?
THE PRESIDENT: Same.
THE PRESIDENT: Same. You know, there's nothing better than a World Series game -- having never participated in one, though, as a club owner, [I'm] a little envious.
KR: Are you getting back in baseball when this is all said and done?
THE PRESIDENT: You know, I'll never leave baseball as a fan. I doubt it. I really do.
THE PRESIDENT: No, I don't think so. I, frankly, haven't thought about my post-presidency, but I just would -- if I were to speculate now, this will probably be run sometime later and they'll say, look, he said he wasn't going to do it.
Director: Richard M. Southall of the University of MemphisCSRI will also publish an academic, peer-reviewed journal entitled Journal of Issues in Intercollegiate Athletics (JIIA). Dr. Kevin L. Burke, from East Tennessee State University will serve as editor of JIIA. Members of an Editorial Review Board will be announced shortly.
Associate Director: Mark S. Nagel of the University of South Carolina
Chief Operating Officer: Deborah J. Southall of the University of Memphis
Assistant Director: Peter Han of State University of New York â€“ Cortland
Dr. Billy Hawkins of the University of Georgia
Mr. Michael McCann of Mississippi College School of Law
Dr. Fritz Polite of the University of Tennessee
Dr. Allen Sack of the University of New Haven
Dr. Ellen Staurowsky of Ithaca College
CSRI Call for Papers
To be considered for acceptance, abstracts must reflect college-sport research on the history of intercollegiate athletics, social-cultural college-sport issues, legal theory or the application of law to college-sport issues, business-related issues in college sport, or special topics related to developing college-sport issues. The research should have reached a fairly complete stage of development, and the abstract should provide enough detail about the research, so the reviewers have sufficient information to judge its quality. Abstracts proposing teaching-related sessions on college-sport issues will also be considered, as long as the abstract provides sufficient detail to judge the quality of the proposed session.
Abstracts will undergo a three-person, blind-review process to determine acceptance. Abstracts submitted to CSRI should not be concurrently submitted for consideration to another conference, but may reflect work that has been previously presented at another conference.
All abstracts must be submitted electronically as a Microsoft Word attachment. They must also contain the following information and conform to the following format requirements: Single-spaced, One-inch margins, Times New Roman 12-point font, and 400-word maximum for 25-minute presentations and posters, and 800-word maximum for 75-minute presentations.Abstract FormatLine 1: length of session desired, choose from the options: (a) 25-minute oral presentation (including questions); (b) 75-minute teaching symposium, roundtable, or workshop; (c) 75-minute forum (2-3 papers with a discussant, including questions); or (d) Poster presentation
Line 2: three to four keywords that will help the program coordinator to schedule similar topics in succession
Line 3: author(s) and institution(s) names (centered on page)
Line 4: presentation title (centered on page)
Line 5: blank
Line 6 to end: text of abstract
In the email message accompanying the attached abstract, include the principal author's name, postal mailing address, email address, and fax and telephone numbers. Submission of abstract(s) indicates the intent of the presenter(s) to register for the conference at the appropriate registration fee.
Submission Deadline: Abstracts should NOT be submitted prior to October 1, 2007 and MUST be received no later than Monday, December 17, 2007 (11:59p.m. CST). Submissions received after this date and time will not be considered for acceptance. Email all abstracts to Richard M. Southall (Director - CSRI) at email@example.com
9. In or about early 2002, Vick [and another defendant] purchased approximately four pit bulls from Cooperating Witness 1.One point of caution: an indictment by a federal grand jury is far from a conviction. I distinctly remember my criminal investigations professor, Charles Whitebread, making this point over and over again. Grand jury hearings are typically secret and one-sided in favor of the government. The prosecutor decides which witnesses to call and which witnesses receive immunity. The basic questioning is done by the prosecutor, and the defendant doesn't even have a right to have his or her attorney present. Even worse for the defendant, an indictment only requires "probable cause," meaning more likely than not--a far cry from "beyond a reasonable doubt" for a criminal conviction. There has been much criticism of grand juries as unfair devices for the prosecution, and that they have been misused as tools to shame defendants, especially in high-profile cases.
10. In or about early 2002, Vick [and other defendants] established a dog fighting business enterprise known as "Bad Newz Kennels."
12. In or about February 2002, Vick [and other defendants] "rolled" or "tested" some of their fighting dogs against other dogs . . . "rolling" or "testing" a fighting dog means placing a dog in a short fighting match to determine how well the animal fights.
"It felt like my head had been ripped off," Robinson told the Daily News from his hospital bed. . . . The man who fell was dragged away by his friends and never bothered to apologize or check how badly Robinson was hurt. The family believes he was drunk.The AP notes the incident is similar to one at Shea stadium last spring, in which "a 58-year-old woman suffered a broken back when a very large drunk crashed into her during a fall."
"I found it odd that they didn't even ask if Paul was OK," Robinson's wife, Kathy, told the Daily News. "It's very steep up there, but if it was an innocent trip, they would ask if Paul was OK."
Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication.Assuming the large fans at issue were served after reaching the point of intoxication (something that could probably be demonstrated by witness testimony or video evidence), the stadium and beer vendors seem clearly on the hook. Might this be a case where size matters, in the sense that an intoxicated person of substantial proportions poses a greater risk of causing serious harm to other fans?
Prof. McCann,I know this is a topic you're very passionate on, so I thought I would pass on this little tidbit. Amir Johnson holds the distinction of being the last high school player drafted, assuming the age limit isn't going anywhere. He was drafted 56th overall by the Detroit Pistons in 2005. Had he attended Louisville, where he signed an letter of intent, and come out this year, he would have been a consensus lottery pick, and possibly a clear 3rd overall behind Oden and Durant.Yesterday, Amir signed a 3-year, $11 million guaranteed contract with Pistons. Coincidentally, that's about what a top 5 pick makes during his rookie contract. But instead of spending two years playing for free in college, Amir has pulled in over $1 million in salary over the last two years, been able to focus exclusively on his game, gotten instruction from NBA coaches and one of the best strength and conditioning coaches in sports, Arnie Kander, and gotten more acclimated to the NBA lifestyle (although most of his time was spent with the Sioux Falls Skyforce of the NBDL).
I know you are fond of saying the reality is that for every Korleone Young, there are two Kobe Bryants. Look like Amir might be ready to start the path to being compared to the later, rather than the former.
Indiana University School of Law
Indiana Law Journal
Indiana University Division of Recreational Sports
The ability of protestors [sic] to avoid the searches by declining to participate inthe protest does not alleviate the constitutional infirmity of the City's search policy; indeed, the very purpose of the unconstitutional conditions doctrine is to prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights. Similarly, the existence of other vehicles through which protestors could voice their disagreement with the SOA (e.g., letters to Congress) does not in any way alleviate the unconstitutional conditions problem.
The search reviewed by the court in Bourgeois impeded individuals from gathering on a public propertyâ€“city land outside of the Fort Benning installationâ€“to engage in political protests protected by the First Amendment. . . . While the protestors in Bourgeois had a right to protest on public land that the magnetometer searches burdened impermissibly, Johnston had no parallel right to enter the Stadium for a Buccaneers football game.
Perhaps most significant, the Boris court questioned many of the reasons the USFL offered for its draft eligibility rule, particularly in relation to the one reason the USFL failed to mention: "the principal reason for the adoption by the USFL and its member teams of the Eligibility Rule was to respond to apparent demands made by college football programs and thereby to gain better access to these programs towards the end of selecting the best college players available." In other words, by guaranteeing that the USFL would not raid [*220] college programs of their players before their collegiate eligibility expired, college programs would steer some of their players towards the USFL, rather than the NFL--the competing and in most respects, superior professional football league. Equally notable, the court regarded the "principal reason" behind the draft rule as far more important than those proffered by the USFL - reasons which happen to echo some of the same reasons presently offered by the NBA: "very few college-athletes are physically, mentally, or emotionally mature enough for professional football ... the Eligibility Rule promotes the concept of the importance of a college education ... the Eligibility Rule promotes the efficient operation of the USFL by strengthening the sport at the college level so that the USFL does not have to develop players at that level."For similar reasons, in Denver Rockets v. All-Pro Management, 325 F. Supp. 1049 (D. Cal. 1971), the NBA lost an attempt at a unilaterally-imposed requirement that players be four years removed from high school because such a requirement was found to comprise an illegal restraint of trade.
Just saw your post on the Sports Law Blog regarding the Tiger Woods no show at the Buick Open. Thought you might be interested in this case that just came down in the Seventh Circuitâ€”Bowers v. Federation Internationale de l'Automobile, 2007 WL 1518612 (7th Cir. May 25, 2007). Fans filed a breach of contract claim (among others) against FIA, F1, and others because the 2005 US Grand Prix had only 6 drivers (20 were scheduled to compete). The Seventh Circuit dismissed the claim and published a brief but interesting opinion regarding the contractual duties arising from the sale of a ticket. Here's an excerpt:Thanks again to Gabe. To read a PDF file of the case, click here.
This claim arguably should fail because IMS promised only to admit the plaintiffs to the race grounds on the days of the grand prix. While we are unaware of any Indiana case addressing the nature of a contract formed by the sale of an admission ticket, cf. Skalbania v. Simmons, 443 N.E.2d 352 (Ind.Ct.App.1982) (addressing a class certification question in a beach of contract action by season ticket holders against a hockey franchise, but explicitly reserving the merits), most states agree that the seller contracts only to admit the plaintiff to its property at a given time. The plaintiff buys the ticket, of course, in order to see an event that is scheduled to occur on the ticket-seller's grounds, but the seller does not contract to provide the spectacle, only to license the plaintiff to enter and â€œview whatever event transpire[s].â€� Castillo v. Tyson, 268 A.D.2d 336, 701 N.Y.S.2d 423, 423 (N.Y.App.Div.2003); . . . But see Miami Dolphins, Ltd. v. Genden & Bach, P.A., 545 So.2d 294, 296 (Fla.Dist.Ct.App.1989) (holding that a provision of a season ticket agreement requiring a refund when games were cancelled due to labor strikes was triggered when a football team played a game using strikebreakers).
The plaintiffs provide us no reason not to construe their tickets this way. While one could contract to provide a spectacle, one wonders why an exhibitor like IMS would do so, given that it has control over its grounds but not over the performers and their scheduled performances. Further, a spectator could reasonably decide to do without a contractual right to the spectacle itself, trusting that the exhibitor will work with the performers to ensure that the spectacle goes off lest both develop a bad reputation that could damage their future business. In the present case, Formula One is struggling to take root in the United States, where the racing of stock cars (modified versions of cars designed for the general public, governed by NASCAR) is the preeminent automotive sport. â€œIndygate'sâ€� potential damage to Formula One's American reputation was a serious concern for everyone involved; some speculated at the time that the FIA might never hold a race at IMS again.
Matthew G. Cole, Comment, No blood no foul: the standard of care in Texas owed by participants to one another in athletic contests, 59 BAYLOR LAW REVIEW 435 (2007)
Jane Hefferan, Note, Changing seasons, changing times: the validity of nontraditional sports seasons under Title IX and the Equal Protection Clause, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 861 (2007)
Dean Krishna, Comment, DNA testing for Eddy Curry? Creating a new constitutional protection, 9 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 1105 (2007)
"fan-friendly environment. We don't want anybody inciting the crowd, and we think those kinds of things can cause an untenable atmosphere, so we would ask them to turn those T-shirts inside out or remove them."
I wonder if anyone who bought tickets to the Buick Open this weekend could claim they bought it because of this ad from weeks ago and try to get their money back. It features Tiger Woods and Woods isn't playing because of the birth of his daughter. It doesn't promise that Tiger Woods will be there, but it also doesn't say â€œNot guaranteed to appearâ€� either. On an interesting note, the Los Angeles Galaxy have added David Beckham non-guarantees to its Ticketmaster site.It's an interesting question, especially if people bought the tickets to see Tiger Woods and didn't care at all about the rest of the tournament. Considering that Woods is probably the greatest golfer of all-time, I am sure there are many people--and especially casual fans--who buy tickets to golf tournaments that feature Woods just to see him play.
Since the NHL made the questionable decision to abandon the cable network as its broadcast partner in favor of the fledgling Versus network, many have argued that NHL coverage on the Worldwide Leader in Sports has ranged from underwhelming to disrespectful. Even ESPN's ombudsman, Le Anne Schreiber, felt compelled to examine hockey coverage on the network. In an article last month, she confirmed that hockey coverage has indeed diminished 28% on Sportscenter over the last three years and that hockey-oriented shows such as NHL 2Night were cut altogether since ESPN's loss of NHL rights.
The reduced exposure on ESPN can only be harmful to the NHL. By minimizing coverage and highlights, the network is effectively reducing the imprint of the game on Americans' collective sports consciousness. Worse still, several ESPN writers and commentators have gone out of their way to emphasize the demise of hockey. Le Ann Schreiber recently noted that during the NHL's regular season, hockey was only mentioned on-air if there happened to be â€œsome egregious brawlâ€� or if it was being â€œdissedâ€� for its invisibility and irrelevance. . . .
Surely, ESPN's attitude towards hockey influences its audience. Herbert C. Kelman of Harvard University notes that there are three source characteristics necessary to persuade others and change their attitudes: the source's (1) expertise, (2) trustworthiness, and (3) power. Of course, ESPN scores a hat trick by (1) regularly hosting a series of experts on various sporting subjects, (2) hosting several hard-news sports programs, and (3) attracting sports' heavy hitters to its airwaves. Thus, ESPN can exert informational and normative social influence on sports fans who, like the rest of us, seek consensus and conformity far more than we realize. As Situationist contributor Sung Hui Kim notes, this motive for conformity exists among peers and groups of many types, including otherwise adversarial lawyers.
For the rest of the piece, click here.
Brian W. Collins, Note, Tackling unconscious bias in hiring practices: the plight of the Rooney Rule, 82 NEW YORK UNIVERSITY LAW REVIEW 870 (2007)
Mike Rogers and Rory Ryan, Navigating the bylaw maze in NCAA major-infractions cases, 37 SETON HALL LAW REVIEW 749 (2007)
Eric Thieme, Note, You can't win â€˜em all: how the NCAA's dominance of the college basketball postseason reveals there will never be an NCAA football playoff, 40 INDIANA LAW REVIEW 453 (2007)
He would open the weekend on a Friday night with a televised gala announcing the MVP, Cy Young, Rookie of the Year and Manager of the Year awards, and have the five top candidates for each in attendance. Hall of Fame voting would be announced Saturday, with the opener that night and Game 2 on Sunday night.... Cities would bid far in advance for the right to host the first two games, and baseball would solicit corporate money, trying to create an event similar to the Super Bowl, Final Four and BCS Championship. Figure on hotels with flowing hospitality suites, ballparks surrounded by champagne-and-caviar-filled tents and tarmacs cluttered with private jets.
I have always been a strong advocate on behalf of the players and have been outspoken about issues that I believe are contrary to the best interests of the players. I respect Boras for what he has been able to accomplish as an agent working on behalf of his player-clients in individual contract negotiations. However, by sending this letter to Selig and, more specifically, requesting to meet with Selig to discuss his proposal, Boras has crossed the line and is going way beyond the authority delegated to him by the union -- which is limited to representing players in player contract negotiations. He's even using the term "we" when discussing this issue, as if to suggest that he speaks on behalf of all of the players collectively:
The World Series is something that rarely gets to a number of venues in professional baseball. And that's one problem because we want the fan base of particular cities to participate in the World Series even though there may be a lull in the particular performance of the regional team.
However, some players are not high on his proposal. For example, Yankees captain Derek Jeter says, "Nine games? It's too long." According to Giants player representative, Randy Winn: "I could see how that would possibly be a big draw, a big money maker, something cool and new. But I think a seven-game Series is more than enough to decide who the world champion is." And while Boras says "from an owner's perspective, this is a gold mine," one highly respected and experienced owner, Washington Nationals president Stan Kasten, refutes that:
I'm not a guy that would just want to hold onto the past for the sake of combating change. But in this case, I think we have such brand equity in the marketplace established with a seven-game Fall Classic, played in the two home cities. I really like that. For a lot of reasons, I think that neutral sites wouldn't work the way they do in other sports.
The purpose of this post is not to question and debate whether a nine game series is better than a seven game series. There are so many issues raised by this proposal that need to be addressed and analyzed from a variety of perspectives, i.e. the league, the individual teams, the players, the collective bargaining agreement, the broadcasters (and the contracts with broadcasters), the corporate sponsors (and the contracts with them), etc. Boras says that he will be meeting with the commissioner after the All-Star break to discuss his proposal. However, Selig (to my knowledge) has not publicly confirmed that he will be meeting with Boras, which, to me, will be the defining moment. If he does, it would demonstrate a monumental leap in Boras' power and authority to now actually discuss with the league commissioner issues that affect the players collectively and make proposals for change, which is and always has been the union's domain. It would also open the door and set a precedent for Boras to discuss other union issues with Selig.
Don't do it Mr. Commissioner!....
Yi probably will not say 'No' to the Bucks. He is not American. He respects the NBA very much.In addition, there have been several excellent pieces over the last week that touch on how the law connects to the NBA draft, including Ted Miller's column in the Seattle Post Intelligencer on how the NBA's new age eligibility rule affected Spencer Hawes and the University of Washington in last night's draft (and my thanks to Ted for his kind words of my research and of Sports Law Blog), and Oscar Robinson's column in the New York Times on how the NCAA should revisit its eligibility rules on players who declare for the NBA draft.
Six trustees, who oversee the benefits process on the NFLPA retirement board, approve disability benefits. The trustees include three former players and three team owners.This subject has attracted more attention in light of recent findings concerning the long-term health problems of those who play in the NFL (see Geoffrey's post, Andre Waters and Concussion Liability, and articles by Alan Schwarz in the New York Times--Expert Ties Ex-Player's Suicide to Brain Damage & Dark Days Follow Hard-Hitting Career). Perhaps more than ever, an enhanced pension and disability system is essential. Along those lines, notes committee Chairwoman Linda Sanchez, "the NFL is a billion-dollar organization built on the backs of individuals who have, in many cases, sacrificed their mobility, suffered traumatic brain injury, or worse. I called this hearing to bring together representatives of the NFL, the players union, and retired players to have an open discussion on the fairness of the system to severely disabled retired players."
If a player is denied benefits and a court of appeals is willing to hear his case, the Groom Law Group, which wrote the NFL's collective bargaining agreement and oversees legal matters for the NFLPA's retirement plan, serves as the retirement board's attorney.
Only 284 retired players currently receive disability benefits, according to Groom Law attorney Doug Ell, and there are an estimated 9,500 retired players overall.
More than 20 players who were denied benefits by the retirement board have had their cases heard in appeals court. The Groom Law Firm was successful in preventing all but one of those players from receiving benefits.
It should be a terrific event and is open to the public. For additional information, please contact Stacey Evans, who is President of the WVU Sports and Entertainment Law Society.
Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the gameâ€”instead of having a strike zone and a set number of balls, strikes, and outsâ€”provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.Wish I had said it exactly that way.
There aren't many lines of work where you sign a contract with one company in one location and can be suddenly be shipped to another company, forced to move across the countryâ€“or even to Canadaâ€“and suffer the family disruption, tax implications, and other consequences at the whim of ownership. There have been instances where a player is traded three times in a single season.
Presumably, the argument is that players have agreed to those terms of employment as part of the collective bargaining process. Still, professional sports leagues operate as closed shops and there's simply no way to earn a living.
. . .[I]t's unlikely anyone is going to feel sorry for the plight of professional athletes making multi-million dollar salaries. Still, the amateur draft, trade rules, and other limitations on player autonomy are quite unusual. Indeed, the only comparable labor situation that comes to mind is that of military personnel, especially in the days of conscription.
Fans have the expectation that players will display extraordinary loyalty to their teams, including extending taking a â€œhome town discountâ€� of millions of dollars when free agency (otherwise known as, â€œthe right to work for whomever will hire you under whatever terms you can negotiate just like everyone elseâ€�) and â€œputting the needs of the team above personal goals.â€� Yet these same fans seem to have no problem with trading these players for better ones if the opportunity arises.
So should we criticize Garnett for what may seem like "selfish" behavior or should we empathize with him for what may also seem like understandable behavior?
The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could.Stevens clearly wanted to make this case about face-to-face contact and not the content of Brentwood's speech, emphasizing the "difference of constitutional dimension between rules prohibiting appeals to the public at large . . . and rules prohibiting direct, personalized communication in a coercive setting.
Alex Rodriguez: "HOT right now. ... Chases a lot of BB's w/2-strikes, both away and in dirt. CH is fine when away. ... (vs. left-handers) Hard in, soft away. Ladder FB w/2-strikes."
Derek Jeter: "Will bunt and H&R. ... Runs early. ... Struggles w/ball down/in and will chase SL away. ... Get ahead. Fairly aggressive so will need to mix pitches and locations 1st pitch."
Bobby Abreu: "HOT right now. ... Good guy to crowd once you're ahead. Hammers 1st pitch FB's away w/RISP."
Johnny Damon: "(vs. right-handers) Struggling w/soft stuff. ... (vs. left-handers) Keep honest w/FB up/in."
Key: FB-fastball; CH-changeup; SL-slider; BB's-balls; ladder-high fastballs, out of strike zone; H&R-hit-and-run.
The reporter published the scouting report in an Associated Press story that was picked up by various publications.
The Arizona Diamondbacks have contacted Major League Baseball about an Associated Press reporter who discovered their advance scouting report on the New York Yankees in the dugout yesterday and put its contents on the wire. "I am furious," one Diamondbacks executive said. "That is theft."I can see why the Diamondbacks and perhaps also the Yankees might feel that a private team document accidentally located on the ground of a team dugout should not be removed from the premises or used in a publication without their permission. Under that interpretation, the taking and subsequent use of the scouting report might be construed as misappropriation, the unauthorized or improper use of a party's confidential information or intellectual property, or trespass to chattles, the intentional dispossession of another's property. Beyond tort law implications, one might even characterize the taking of the scouting report from the dugout as criminal behavior: theft is the illegal taking of another person's property without that person's consent, and if we are to believe the anonymous Diamondbacks' official above, then the team appears to believe that they have been a victim of a reporter's theft.
If I remember correctly, the issue is whether the Diamondbacks would have a reasonable expectation of privacy for proprietary information left on the floor of the visitor's dugout at Yankee Stadium, after the last game of their only visit to New York. I would argue that, unlike the digging through the trash example, they don't. It seems to me that if you are extremely careless with your secrets, you lose the protection of the law; if not, you should.
If you disagree, let me ask you if you'd feel otherwise if the scouting reports were picked up by a Yankee employee (whether cleaning staff or uniformed personnel) and leaked to the AP? Or used by the Yankees for their own, nefarious ends? What if they were leaked by a disgruntled Diamondbacks scout without authorization?
What if -- not to get too grandiose on you -- they weren't the Diamondbacks' failed plans to win in New York but the Bush Administration's failed plans to win the war in Iraq, left behind in a Pentagon bathroom where the media has access? Should the principle be different because it's "just sports"?
. . . a healthy dose of skepticism remains.I spent a considerable amount of time last summer writing a Boston University Law Review article on corporate fraud whistleblowers (which you can download free of charge here), and one of the main conclusions I developed was that, while laudable, anonymous reporting alone does not encourage whistleblowers to report negative information about their employers. The economic, social, and psychological factors militating against whistleblowing, such as the "rat" label mentioned by Conwell, are simply too powerful. The most effective whistleblowing programs have involved financial bounties or rewards for reporting accurate information about organizational wrondoing. Obviously, the NFL is not yet prepared to take that step.
"I think, of all the things they're recommending [on dealing with concussions], that will be the toughest sell," said 11-year veteran tight end Ernie Conwell. "Players hate to be labeled, you know? And no one wants to be labeled a snitch or a rat -- that's for sure. So I feel like it's going to take a lot of education to make the players feel comfortable with it."
If the goal is to sell the video to a media outlet, then Kobe could sue for money damages or an injunction preventing the release of the video. As a celebrity he has a legal right in his own publicity image -- he can't stop you from showing his image on the news, but he can stop you from profiting from his image without his permission. The KVG guys told [FanHouse's] Brett that Bryant didn't know he was being filmed -- which sure sounds like he did not grant his permission for them to disseminate the video for profit.Miss Gossip is alluding to the right of publicity, which is the use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage. As Rick recently examined in regards to Drew Brees' efforts to avoid having his image used to promote his mom's congressional campaign, the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. The right varies in strength by state, but it would be an avenue that Bryant could consider, in the highly unlikely event that he sought legal recourse. A key question would be whether the video is providing a newsworthy purpose (see Rick and Howard's debates on that subject) and to what extent Bryant's celebrity status diminishes his legal right to privacy. Also, some states, like Illinois, have passed High Tech Peeping Tom laws, whereby is it illegal to record or transmit live video images of a person without his or her permission--but the catch is that the person must be in a "private location" and Bryant was not.
Additionally, you have the super-legal argument that these KVG guys are just plain dumb. Why would thousands of people pay for the video when five minutes after its release they could probably see it for free on the FanHouse?
. . . On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally. It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing: treating a case differently than it might have otherwise because it has gone public and taken a political life of its own? Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding? My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision. But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly. I think they should in many cases, but this one is just more public than most.
Judge Rules in Favor of Fantasy Baseball LeagueHT to recent UT Law grad Justin Stone for passing along the link.
Should Fantasy League Operators Pay Licensing Fees?
The Law, Politics, and Linguistics of Fantasy Sports
Major League Baseball v. Fantasy Sports
Can Player Statistics Be "Owned"?
Are Fantasy Leagues Bad for Baseball?
Sports, Technology and Law: Do Leagues Own Statistics?
Questions surround Yi's correct birthdate, his official passport in China has him listed as being born on October 27, 1987, but it has been rumored that his date of birth may have been intentionally falsified so to be eligible in junior competitions. The estimates of his birthday are between 1984 to 1987.
In 2004, he was listed as being born in 1984 in China's Four Nation Tournament, although authorities said it was only a "typo".
A Houston Chronicle article reported that Yi told Shane Battier he was 24 in an exhibition game before the 2006 FIBA World Championship [which occurred in August, before his October birthday]. However, Yi later denied the allegations.
Peter Charlish and Rob Heywood, Anti-doping inconsistencies snare American star, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 79 (2007)
John A. Fortunato and Jef Richards. Reconciling sports sponsorship exclusivity with antitrust law, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 33 (2007)
Paul Greene, Paving a new path to conviction in Olympic doping case, 59 MAINE LAW REVIEW 149 (2007)
Matt Maher, Note, You've got messages: modern technology recruiting through text-messaging and the intrusiveness of Facebook, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2007)
Brandon T. Moonier, Comment, The legal game behind fantasy sports: copyright protection and the right of publicity in professional performance statistics, 26 ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW 129 (2007)
I am now waiting for the Dolphins management to do what is right and fair by granting my release so that I can find a team that will appreciate my talent and love for the game. I do not want to cause any disruption while I wait, so I will only be at the facility in order to run and lift. What happened Friday in the team meeting and on the field was unfair to both me and my teammates. The NFLPA legal department is reviewing the situation and Gene Upshaw has encouraged me to continue to be patient and professional.
Assuming the 200 fans that bought season tickets in the 24 hours surrounding Donovan's hiring bought the average seats -- $40 per game for $1,800 a season -- that would mean that the Magic would have to refund $360,000. I called the team this morning and asked them if they were refunding tickets. A ticket representative told me that nothing had been determined yet.
Duke law school professor Paul Haagen told me earlier this week, he thought the team would have a case if they didn't give the fans their money back. â€œI suspect that they intend to hold those ticket holders into their contracts and they're not intending to release them,â€� Haagen told me. â€œThey didn't in fact guarantee that Billy Donovan would be the coach when they announced that he would be the coach.â€�
Now that's interesting. Haagen is basically saying that there wasn't any legal language that tied Donovan to season ticket contract. I'm not a lawyer, but I think this is good enough.
Have fans ever before demanded a refund because they were upset about a coach quitting so quickly? Neither Rovell nor I are aware of that happening. But I do recall the one day when Bill Belichick was, in his words, "HC of the NYJ." However I don't recall any Jets fans claiming that they bought season tickets because Belichick was, at least for several hours, going to take over for Bill Parcells as head coach. Rovell does cite a Canadian case where a fan of the Ottawa Senators unsuccessfully argued that he would not have bought season tickets for the 1999-2000 season had he known that Alexi Yashin would not be part of the team (Yashin held out for the entire year). That case was dismissed because it was impossible to prove that the fan bought the seats because of Yashin.
Her father, Allan Stokke, comes home from his job as a lawyer and searches the Internet. He reads message boards and tries to pick out potential stalkers. "We're keeping a watchful eye," Allan Stokke said. "We have to be smart and deal with it the best we can. It's not something that you can just make go away."Now here is where irony can be pretty ironic, from Ann Friedman at Feministing and Ann Bartow of PrawfsBlawg. Allan Stokke is a criminal defense attorney who has defended men accused of sex crimes specifically by attacking (as he often must) the scope of legal protection that should be afforded the female victim. According to various reports, in one case, Stokke defended one of several teen-agers accused of gang-raping an unconscious 16-year-old girl, in part by arguing that she could not feel physical pain during the attack because she was unconscious. In another case, he successfully defended an Irvine, California police officer who masturbated on a woman during a traffic stop, in part by arguing that the woman, a nude dancer and an "overtly sexual person," "got what she wanted." (The City of Irvine apparently had a different view of the case and settled the woman's civil action for $ 400,000, a substantial amount of money for civil rights actions not involving bodily injury).
Vick was in line to board an AirTran flight in Miami in January when TSA agents found he had discarded a water bottle that contained a hidden compartment. Police said they smelled marijuana and found a "dark particulant" in the 20-ounce bottle. No charges were filed and Vick later said he often had jewelry stored in the hidden compartment.The good news for Vick? Poindexter insists that no evidence has been presented that would lead him to charge Vick with any crime.
William B. Gould, Globalization in collective bargaining, baseball, and Matsuzaka: labor and antitrust law on the diamond, 28 COMPARATIVE LABOR LAW & POLICY JOURNAL 283 (2007)
Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes, 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)
Gary P. Quiming, Comment, Playing by the rules of intellectual property: fantasy baseball's fight to use Major League Baseball players' names and statistics, 29 UNIVERSITY OF HAWAI`I LAW REVIEW 301 (2006)
According to people who were there, the big issues were the alleged tanking of regular-season games, the mess created by last week's lottery and the rule prohibiting players from leaving the bench during on-court altercations that resulted in the suspensions of the Suns' Stoudemire and Boris Diaw during the West semifinals.As often as I criticize David Stern, I am going to defend him here. I feel confident saying that the lottery was not rigged and there was no conspiracy. Stern may be powerful, but short of telekinetic powers, I strongly doubt that he could or would have rigged the lottery, particularly given that an independent lottery firm--albeit one hired by the NBA--actually conducts it. The results were certainly unfortunate for the three teams with the three worst records, but that is the nature of a lottery where no team--including the team with the worst record--has a likely chance of landing either of the first two picks.
Stern admitted the league has created a perception that the worst teams have been losing on purpose over the second half of the season in hope of improving their position in the lottery. He said the fans don't like it, and he added that he was open to suggestion on how to redress the perception.
There are suspicions among some league executives and coaches that Stern rigs the results of the lottery -- in this case to punish the three worst teams (Memphis, Boston and Milwaukee, who came out of the lottery Nos. 4, 5 and 6 in the draft) for contributing to the perception of late-season tanking. To deal with the conspiracy theories, the league spelled out during the committee meeting how the lottery machine works and how it would be practically impossible to fix the outcome. (I've been in the closed room during the lottery, and the NBA mechanism is a lot like the Powerball or other lottery machines that you see on television.)
Amid the discussion of tanking spoke up former Memphis coach Tony Barone, representing the Grizzlies in place of team president Jerry West (whose absence was seen by some as a statement of protest), to make an impassioned defense of his team's play. He was adamant that the Grizzlies hadn't been tanking games and he responded forcefully and sincerely to the insinuation.
As to the fact that the three neediest teams were shut out of the top three picks, Stern again said that he was open to suggestion for a better system.
Redesign the lottery so that the real drawing happens live on international TV. Seeing grim men in suits arrive in the TV studio with the envelopes all ordered by some secretive behind-the-scenes process does not help perceptions.
Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it. What league is this? Major League Baseball.To read the rest of the post, click here.* * *
Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.* * *
So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.
The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed â€¦ as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''
Suzanne E. Eckes, Title IX and high school opportunities: issues of equity on and in the Court, 21 WISCONSIN WOMEN'S LAW JOURNAL 175 (2006)
Greg Egan, Student article, Sustained yield: how the dynamics of subsistence and sport hunting have affected enforcement and disposition of game violations and wounded Alaskan culture, 28 HAMLINE JOURNAL OF PUBLIC LAW & POLICY 609 (2007)
Haley K. Olsen-Acre, Student article, The use of drug testing to police sex and gender in the Olympic Games, 13 MICHIGAN JOURNAL OF GENDER & LAW 207 (2007)
Josephine R. Potuto, Academic misconduct, athletics academic support services, and the NCAA, 95 KENTUCKY LAW JOURNAL 447 (2006-2007)
It's like pitching pennies. It's grossly unfair to the team, but I've said it before, I don't think the lottery is fair. I never liked it.West has a point. If the purpose of the NBA Draft is to redistribute talent in the most equitable manner, shouldn't the worst team get the best pick? Major League Baseball and the National Football League take that very approach, with the idea that the league product is enhanced when, at some point, every team has a genuine opportunity to become great through obtaining the best amateur talent. That idea hasn't worked in baseball because of the absence of a salary cap and because it's extremely hard to project the professional potential of amateur baseball players, but it seems to have worked pretty well in the NFL.
It's not sour grapes. I just think it's a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season.
There have been a lot of picks in the lottery that have (failed). There are two in the lottery this year that are not going to fail. There are two superstars in the draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.
Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label â€œsymbolic counter-speech,â€� counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for â€œGod Bless Americaâ€� or may turn their backs to the flag during the anthem. Fans even may jeer one nation's anthem as it is being played as protest against that nation or its policies.
Ms. Strouse, apparently, has learned nothing about the judicial process from the missteps in Durham and other places. Rather than allowing Mr. Poindexter to properly develop the case and serve the interests of the people of Surry County and the Commonwealth of Virginia, she wants a public spectacle and a premature indictment. I applaud Mr. Poindexter for the poise and diligence which he has displayed in this investigation.For the rest of the article, click here.
There's a reason attorneys handle prosecutions rather than dog catchers. I hope the national media respects Mr. Poindexter's investigation rather than latching on to Ms. Strouse's inflammatory comments.
Hector Del Cid, Winning at all costs: Can Major League Baseball's new drug policy deter kids from steroids and maintain the integrity of the game?, 14 SPORTS LAWYERS JOURNAL 169 (2007)
Marc J. Dobberstein, Student article, â€œGive me the ball, Coachâ€�: a scouting report on the liability of high schools and coaches for injuries to high school pitchers' arms, 14 SPORTS LAWYERS JOURNAL 49 (2007)
Kara Fratto, The taxation of professional U.S. athletes in both the United States and Canada, 14 SPORTS LAWYERS JOURNAL 29 (2007)
Jonathan B. Goldberg, Student article. No tying in football? Re-examining the sale of NFL tickets, 14 SPORTS LAWYERS JOURNAL 1 (2007)
Jonathan Gonzalez, Trademark goodwill, brand devaluation, and the neo-political correctness of college athletics: did Marquette's recent identity crisis cost them thousands or even millions of dollars in brand value?, 14 SPORTS LAWYERS JOURNAL 195 (2007)
Allan M. Johnson, Student article, The right of publicity gets left out in CBC Distribution, 14 SPORTS LAWYERS JOURNAL 71 (2007)
David W. Penn, Note, From Bosman to Simutenkov: the application of non-discrimination principles to non-EU nationals in European sports, 30 SUFFOLK TRANSNATIONAL LAW REVIEW 203 (2006)
Jude D. Schmit, Student article, A fresh set of downs? Why recent modifications to the Bowl Championship Series still draw a flag under the Sherman Act, 14 SPORTS LAWYERS JOURNAL 219 (2007)
Yael Lee Aura Shy, Student article, â€œLike any other girlâ€�: male-to-female transsexuals and professional sports, 14 SPORTS LAWYERS JOURNAL 95 (2007)
Kelley Tiffany, Cheering speech at state university athletic events: how do you regulate bad spectator sportsmanship?, 14 SPORTS LAWYERS JOURNALS 111 (2007)
Frank P. Tiscione, Student article, College athletics and workers' compensation: why the courts get it wrong in denying student-athletes workers' compensation benefits when they get injured, 14 SPORTS LAWYERS JOURNAL 137 (2007)
However, last summer Judge Mary Ann Medler was convinced that the players don't have a right of publicity because their names and performance statistics are in the public domain. But saying it's in the public domain only begs the question as to whether there is a violation of the right of publicity, it doesn't answer it. In other words, professional athletes are, by definition, in the public domain by virtue of being professional athletes. That doesn't mean Nike can use Tiger Woods without a license.
A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other personal characteristics, is the fruit of his labors and is a type of property. Defendants' contention has no merit that by the publication in the news media and because of the ready availability to anyone of the names and statistical information concerning the players, such information is in the public domain and the players thus have waived their rights to relief in this case. Such argument may or may not have some weight against a right of privacy claim, but in an appropriation action such as in the case at bar the names and statistics are valuable only because of their past public disclosure,
publicity and circulation. A name is commercially valuable as an endorsement of a product or for use for financial gain only because the public recognizes it and attributes good will and feats of skill and accomplishments of one sort or another to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action, for only disclosure and public acceptance does the name of a celebrity have any value at all to make its unauthorized use enjoinable. (emphasis added). Id. at 1282, 1283.
[Wakefield's contract] was signed less than two years ago, on April 19th, 2005, by a veteran pitcher who had already made his millions, and who was a free agent at the time. This pitcher, who was about to complete a three-year deal that paid him a little north of $13 million, agreed to a one-year extension worth 4 million dollars--a one-year deal, and a pay-cut, even though said pitcher had just gone 12-10 with a league-average ERA the year before. At the time he signed the extension, he had started the new season 2-0 with a 1.37 ERA; he would finish 16-12 with a 4.15 ERA ...But let's look at the contract from Wakefield's perspective. First consider loyalty (a topic that I examined from a scholarly perspective in my Brooklyn Law Review article "It's Not About the Money"). It can be argued that without the Red Sox, Tim Wakefield's baseball career would have ended in 1995. At that time, he was 28-years-old and coming off a disastrous season for Triple A Buffalo in which he had a 5-15 record, a 5.84 ERA, more walks (98) than strikeouts (83), and 27 home runs given up--worst in Triple A. Sure, he was the National League Rookie of the Year in 1992 for the Pittsburgh Pirates, but that was three years earlier; in the interim, he had devolved into one of the worst pitchers in Triple A, and was seemingly destined for another profession--especially after the Pirates unceremoniously released him on April 20, 1995.
Then keep in mind that this pitcher had gone 22-12 the two years before that, with ERAs of 4.09 and 2.81 (the latter was 4th-best in the league). This pitcher was in his 13th major-league season and had never suffered a significant arm injury.
To the best of my knowledge, since the dawn of free agency, no player has signed a comparable contract ... We used to have a term for this type of contract in the annals of baseball history. What was itâ€¦oh yeah, we called it the Reserve Clause.
Wakefield's agent, Barry Meister, told the knuckleballer during this past offseason that, given age and productivity, he might command $6 million from some club at the end of the season.But did Wakefield owe a duty to other players to not take a contract with a perpetual team option? We considered players' implied contractual duties to the MLBPA when we examined how the MLBPA pressured Washington Nationals' closer Chad Cordero to turn down a two-year contract offer, and Rick has written extensively about the related topic of using unions to negotiate contracts for players. And we know that three decades ago, many players and union lawyers fought hard against the very type of contract Wakefield signed. Has Wakefield been disloyal to the players' association as a price for being loyal to his employer, and how should we regard that?
"He said, `Is that club the Red Sox?' " Meister said. "I said, `No, might not be.' He said, `If you said the Red Sox, that's one thing.'
"He waved me off and said, `Money is important, but it's kind of down the list for me. My desire is to be in Boston and be a Red Sox. That's just who I am now.' "
Today we're swimming in that gray area, where you may not agree with a murky Tennessee law, where you don't know if there's a definite right and a definite wrong, and where we have no idea how the NFL will respond. With its new player conduct policy, the league has hinted that it might not see different shades in its black-and-white world.For the rest of the column, click here.
This is made all the more difficult because sport is built within boundaries, rules and scores. Everything is measurable, the drama usually confined to a two- or three-hour block of time. But as more athletes do their in-town traveling via the back seat of a police car, there's no instant summation or clear-cut understanding.
"It's so easy to jump at the first facts," says Michael McCann, an assistant professor at the Mississippi College School of Law who runs sports-law.blogspot.com. "We're moved by the tragedy or the initial news report."
McNair's alleged infraction -- riding shotgun in a car he owned while the driver was allegedly drunk -- violated what McCann termed an "unusual law." As certain states strive to "get tough" and "crack down," they've lengthened the reach of accountability. In civil cases, you choke on food and skip over the line cook to sue the restaurant chain. And in criminal cases, authorities stretch liability as far as they can to discourage recklessness, and in theory, save lives.
"This is a law that's very scrutinizing of those who own cars and very protective of others on the road, the bystanders," McCann says. "It's built around public safety. It is your car, and there's certain expectation that you'll be responsible with it. It certainly raises the ante a bit."
If the facts come out and McNair knowingly allowed someone under the influence to get behind the wheel, he'd probably be guilty of pretty bad judgment. Did he break a law? Did he endanger others? It's foolish to even try inferring definitive answers today.
After all, the first thing to hit newsprint often only hints at the bigger truth. In this case, we're talking about "McNair charged a second time with DUI" -- even though he wasn't convicted the first time and last night's alleged infraction sure has the makings of something that will be contested.
The full story is usually too complex to fit on ESPN's crawl. As a news item, it has the movement of a knuckleball and we don't know the direction. Similar to when a stripper accused lacrosse players of sexual assault. Or to when we lionized a likable young pitcher who was killed in a car accident.
One and a half weeks ago, Josh Hancock, of the St. Louis Cardinals, died after running his Ford Explorer into a parked tow truck. Initial news reports praised Hancock and mostly ignored the unanswered questions. We later learned there was much more to the story, and that Hancock had a blood-alcohol level nearly double the legal limit.
"He went from being a hero to someone who we were suddenly skeptical of," McCann says. "I think certainly we need to be cautious until all of the facts come out. Whenever we react immediately, we're missing facts and context to the story."
This brings us to the NFL commissioner's office, which just last month issued a new conduct policy for its players, a set of vague zero-tolerance guidelines that would benefit from heeding the same warning as fans: When it comes to doling out punishment and deciding complicity, the smart area is somewhere between hard and fast and weak and slow. It's the gray area.
So if it is just a bunch 20-somethings having fun playing kickball and hanging out at parties, why would their leagues sue each other?
5. Is this a serious league?
God, I hope not. Maybe about drinking. The focus of DCKickball, from the beginning, is about meeting people, having fun, and not taking things too seriously. But it's pretty much up to everyone involved to contribute to this attitude. If you encounter anyone who isn't into this, please tell them to chill-out. It's just kickball, people.
But the very uncomplicated game of kicking a big red ball and rounding the bases -- think softball without the bats -- has become a federal case. WAKA has sued another kickball league, DCKickball, in U.S. District Court in Alexandria, Va., claiming "copyright infringement." WAKA is claiming that when former members broke off to form the second league, they stole WAKA's unique rules. Neither side will talk about the lawsuit.So while WAKA can likely establish that it enjoys copyright protection in how it expresses a rule, it is very unlikely that it can establish ownership in the mechanics of that rule. John Marshall law professor William Ford, who blogs on Empirical Legal Studies, similarly noted this in response to my post last year:
"They think all of a sudden they created kickball? It's kickball," said Michael Murphy, general manager of the Golden Gate Sport and Social Club in San Francisco. "You roll the ball; someone kicks the ball," he said, explaining the basic rules of the game his organization also offers. "It's a free country." The San Francisco club, which has not been sued by WAKA, is part of a multi-sport national organization that started 12 years by some Chicago women interested in co-ed football.
"It's hard to believe that people would go to court over this," said Michael McCann, an assistant professor who specializes in sports law at the Mississippi College School of Law. "The notion that they own a sport, that's just crazy." McCann said the suit boils down to a complicated legal point that will be tough to prove. No one owns the mechanics of the game, just as baseball and basketball aren't owned, he said. But the way certain rules are "expressed" or used, such as requiring at least four women and four men on each team, could possibly be a copyright issue, he said.
You are free to copy the method of play, but you need to express it in your own words (or in words in the public domain) . . . The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine . . . WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic.Aside from its intellectual property dynamics, this lawsuit can also be viewed from a competition/antitrust perspective. In that vein, one might argue that it is an attempt by the much better financed WAKA to raise DCKickball's expenses and put it - WAKA's major competitor in DC - out of business. Whether that is true or not is unclear.
But what about fans who merely wish ? Does wishing make a difference? And if not, why would they still wish? [Princeton University social psychologist Emily] Pronin's research, again, indicates that wishing satisfies our urge for control at those times when actual control over outcomes we care about is in short supply.We hope you read the rest of our article on The Situationist.
This phenomenon was certainly apparent in the buildup to Red Sox victory in 2004. Consider the classic thread â€œWin it Forâ€� on the popular Red Sox fan messageboard Sons of Sam Horn (also known as â€œSoSH,â€� of which principal owner John Henry and ace pitcher Curt Schilling are members). The thread was started by high school teacher and diehard Sox fan Shaun Kelly right before Game 7 of the Sox-Yankees American League Championship Series. By urging fellow fans to dedicate the game to â€œthe special people in their lives who had loved the team through thick and thin,â€� Kelly hoped that he would create some â€œmojoâ€� for the Sox. He concluded his message with . . .
The thickness of an elephant's skin ranges from one inch across the back and hindquarters to paper-thin around the mouth and eyes, inside the ears, and at the anus. Their skin appears deceptively tough, but in reality it is so delicate that an elephant can feel the pain of an insect bite. A bullhook can easily inflict pain and injury on an elephant's sensitive skin. Trainers often embed the hook in the soft tissue behind the ears, inside the ear or mouth, in and around the anus, and in tender spots under the chin and around the feet.Sponsored by State Rep. Diana Urban (pictured to right), the bill has already passed the Connecticut House Judiciary Committee. Of concern to circus fans and some businesses and policy-makers in Connecticut, Ringling Brothers has pledged to boycott the state if the bill becomes law, meaning that the nation's largest circus company would no longer host circuses in the Constitution State. The absence of those circuses would present economic consequences. Indeed, the annual economic loss of circuses not occurring in Bridgeport and Hartford --the state's most populous and third-most populous cities--project to be about $2.6 million, including $200,000 in state and local taxes and $400,000 in locally purchased supplies.
San Jose, Calif., humane inspectors found that seven Ringling Bros. and Barnum & Bailey Circus elephants "had injuries behind or on the back of their left ears. Some of the elephants had scars behind their left ears. Almost all of the injuries appeared to be fresh, with bright red blood present at the wound sites."
"It's a cheap shot and my client is very disappointed. It seemed to me that they were looking for an opportunity to dump this kid who has worked really hard in his life . . . He's never been arrested before. He came from total poverty and made enormous sacrifices for his family and I think that entitles him to the benefit of the doubt from the public as to what really happened here."
3) Kendrick Perkins Sued for Breach of Contract: Center Kendrick Perkins, who will hopefully be supplanted by Greg Oden next season (I can dream), has been sued by Michael Rylas, his former high school assistant coach who would later become his personal trainer/manager/confidant, for breach of contract. Right after Perkins was selected with the 28th pick in the 2003 NBA Draft out of Ozen High School in Beaumont (TX), Rylas moved with Perkins to Massachusetts and lived with him until last fall. During that time, Perkins paid Rylas, apparently without a contract and perhaps under the table, for various services (training, investing advice, tax advice--basically being Perkins' Chief of Staff).
Then, on September 7, 2006, Ryals and Perkins entered into a formal written contract that called for Rylas to continue to perform those services in exchange for 6 percent of whatever Perkins earned from his NBA contract, but excluding monies he would receive from endorsements or incentives. Perkins would then sign a 4-year, $16 million contract extension with the Celtics but did not, according to Rylas, live up to his end of the bargain.
4) Kevinn Pinkney Arrested for DUI: Forward Kevinn Pinkney, a key member of the Celtics' late season tanking efforts after being signed to a 10-day contract, was arrested on suspicion of driving under the influence in Reno, Nevada last week. He failed several field sobriety tests and was later booked for DUI. I suspect he won't be coming back to the Celtics next season.
The Rules of the Game:
The Winning Effect of Paul Weiler
Friday April 27, 2007
3:45 to 5:00 Panel (Austin West): "Rules of the Game: The Winning Effect of Paul Weiler"Roger Abrams
Professor and Former Dean of Northeastern University School of Law
President of Stuart N. Brotman Communications
Lecturer on Law and Covington and Burling Distinguished Scholar at Harvard Law School
Partner in the Labor and Employment Law Department of Morgan Lewis in New York City
Executive Director of the Major League Baseball Players' Association
CEO of Horrow Sports Ventures
Executive Vice President of Labor Relations & Human Resources at Major League Baseball
Executive Vice President of the National Football League5:30 Reception (Caspersen Room in Langdell Hall)
6:30 Dinner (Caspersen Room in Langdell Hall): Keynote speakers:
Elena KaganOther speakers:
Dean of Harvard Law School
Baseball Commentator on ESPNStephen Greyser
Richard P. Chapman Professor of Business Administration, Emeritus, at the Harvard Business School
Professor of Law at the University of British Columbia
With the news that Michael Vick is in trouble again, I'm wondering how Roger Goodell will act on this.Will makes a compelling case. Is he right?
Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct policy is not only bad for the players, but will be bad for the Commissioner as well.
By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.
For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?
Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).
I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.
"[I]n recent years there has been a groundswell of excellent scholarly works dealing with intercollegiate athletics. The topic has both endurance and significance now that such disciplines as history, economics, law, literary analysis, and political science have been brought to bear on the serious study of college sports. Don't hold your breath for any strong connection between research and reform. As the scholarship on college sports gets better, the educational and ethical problems of college sports get worse."In 2006, apparently unaware of such a groundswell, and noting the lack of such research, Dr. Myles Brand and the NCAA decided to sponsor an academic conference to encourage scholars to study college sport.
"The NCAA decided to sponsor the academic conference, he [Brand] said, because it wanted to involve faculty members not in role they sometimes play on their campuses â€” helping to oversee and govern the sports programs â€” but in their primary role as scholars. 'The idea was that there's another role for faculty in intercollegiate athletics that we haven't taken up at the NCAA, and that's to treat intercollegiate athletics as the subject matter for research,' said Brand, a philosopher who was president of Indiana University before taking the reins at the NCAA. 'We thought it would be helpful if the NCAA would be supportive of that effort.' "As a result, the NCAA announced it would host a conference: The 2007 Conference on Intercollegiate Athletics and Higher Education in America an "inaugural, academic, juried conference...intended to summarize scholarships from the last several years on the context of intercollegiate athletics in higher education in America and role of sport in American culture."
"...when he looked at the papers â€” 'and having been in the academy for 40 years, I think I can tell the difference between a good paper and something that's not high quality,' Brand said â€” he saw too many of the latter and too few of the former, he said."Okay, so what's the problem? The NCAA and Dr. Brand didn't like the papers submitted. It's their conference and if they want to take their academic "ball" and go home, so what? A reader may simply say, "What's the big deal?"
"That's when the association decided to start from scratch, and to convene 'the leading scholars in their fields, from sociology, history, literature, economics, business,' to plan the meeting and, ultimately, referee the papers. Brand says he is confident that the 2008 conference will produce important work that measures up to material published in scholarly journals."
"The NCAA's announcement of the new event said its theme would be â€œCollege Sports: A Legitimate Focus for Scholarly Inquiry,â€� and noted that it would feature â€œinvited scholars of international reputeâ€� â€” suggesting that submissions would not be welcomed."
"We're hoping to get more people in nonkinesiology departments, people who don't do research on sport because it's not front and center in their disciplines, to come out of the academic closet, so to speak, and study sport," he said. "College sports have a tremendous impact on our educational institutions, our towns, our budgets. We think the time is right for a more serious look at the subject."I guess all the jokers and academic imposters who have studied college sport for the last 100 years should be glad that serious "closeted" scholars can come out and take a more "serious" look at the subject. I'm sure I won't be invited to speak in Nashville next January, but hopefully I can find other less rigorous venues for my scholarship.
Vanessa Bovo, Comment, Keeping the public in the public use requirement: acquisition of land by eminent domain for new sports stadiums should require more than hypothetical jobs and tax revenues to meet the public use requirement, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 289 (2006)
Thomas Brophy, Casenote, Icing the competition: the nonstatutory labor exemption and the conspiracy between the NHL and OHL, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2007)
Meri J. Van Blarcom-Gupko, Should NASCAR be allowed to choose the tracks at which its series' races are run? 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 193 (2006)
Parker B. Parker, Jr., Take me out to the metaphor, 5 PIERCE LAW REVIEW 313 (2007)
Oscar N. Pinkas, Comment, The wisdom of Major League Baseball: why free agency does not spell doom for European football, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 257 (2006)
Vittorio Vella, Comment, Swing and a foul tip: what Major League Baseball needs to do to keep its small market franchises alive at the arbitration plate, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 317 (2006)
Stadium-wide compliance would include making 1 percent of all seating handicap accessible and offering a variety of seating locations and ticket prices for disabled visitors. For the officially 107,501-seat stadium, that means there must be at least 1,000 handicap accessible seats.In addition, the plaintiffs object to the lack of "companion" seats (for the family and friends of a disable fan) adjacent to wheelchair seats.
Brett Gibbs, Note, Antitrust and sports league franchise relocation: bringing Raiders I into the modern era of antitrust law, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 217 (2007)
Paul C. McCaffrey, Note, Playing fair: why the United States Anti-Doping Agency's performance-enhanced adjudications should be treated as state action, 22 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 645 (2006)
Jason Shane, Note, Who owns a home run? The battle of the use of player performance statistics by fantasy sports websites, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 241 (2007)
"I probably (would have played), but since we were in the hunt for a high draft pick, of course things are different. I understand that. Hopefully things get better. Now that we clinched at least having the second-most balls in the lottery, the last three games we'll see what happens. We'll see if we can go out and finish some games."The "hunt for a high draft pick." Gotta love this game.
Earlier today, Jon Hanson and I published a lengthy article on The Situationist entitled "Hoyas, Hos, & Gangstas."
Why do you think it is that the "tanking" concern seems to arise uniquely with respect to the NBA? There seems to be no concern about tanking in the NFL for instance and it is not uncommon to see a team spring an upset the last week of the season and knock them down a few spots in the draft.I e-mailed him back the following five possible explanations, which I have edited to incorporate his insight:
One possibility is that the top players in the NBA draft are more "impact" players. But that might explain no tanking in baseball, but not the NFL.
Another possibility might be that the number of close substitutes is deeper in the NFL, but that doesn't seem clear either.
It is just odd--the NBA seems to be the one sport where this concern arises repeatedly over time. Indeed, that's why the NBA adopted the lottery--yet there are still allegations of tanking.
Eoin Carolan, The new WADA Code and the search for a policy justification for anti-doping rules, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2006)
Salil K. Mehra & T. Joel Zuercher, Striking out â€œcompetitive balanceâ€� in sports, antitrust, and intellectual property, 21 BERKELEY TECHNOLOGY LAW JOURNAL 1499 (2006)
Scott B. Shaprio, Comment, Who decides institutional choice in determining a performance enhancing drug policy for the NFL, 7 WYOMING LAW REVIEW 183 (2007)
Sharianne Walker & Michael Enz, The impact of professional sports on the local economy, 29 WESTERN NEW ENGLAND LAW REVIEW 149 (2006)
Perhaps the most recent and egregious example of purposeful losing by an NBA team occurred in the 1996-1997 season, when teams were jockeying for the worst record, in hopes of securing the coveted first pick in the draft, which would be used to select Tim Duncan. At the time, the Celtics were coached by M.L. Carr, who was also the team's general manager. The team lost 67 games, thus securing the worst record (but it didn't win the lottery). Having watched a number of their games that season, it seemed that they always found a way to lose. Five years later, Carr would assert that he was indeed trying to lose games:Carr suggested his last season as Celtics coach in 1996-97, during which the team suffered through a franchise-worst 15-67 record, was a tank job designed to deliver the incoming coach (Rick Pitino) with strong draft position. "That was part of the orchestration," said Carr, an obvious indictment of the entire organization and its part in encouraging a losing season in an attempt to get the first overall pick (Tim Duncan). As it turned out, the Celtics lost out on Duncan and settled for the third and sixth overall picks. From: Mark Cofman, Celtics Dismiss Outspoken Carr, Boston Herald, Feb. 1, 2001, at 84.
[I]n pattern and practice group employment discrimination cases, courts rely on statistics to determine whether an employer has a standard operating procedure of discriminating against certain groups, like women. In such cases, when no women have been hired, as is the case with female major league umpires, "fine tuning of the statistics [do not] obscure the glaring absence of minority [employees].... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from â€˜the inexorable zero'"). See Teamsters, 431 U.S. 324, 342 n.23 (1977).As a result, Professor Secunda writes, even without knowing how many females have applied and were rejected by MLB for umpiring jobs--which would normally be crucial data in a sex discrimination claim--MLB
[C]annot hide the fact that [it] has not hired ONE female major league baseball umpire in its entire existence . . . based on this Slate article and other articles on this topic I have read in the press, that there are at least SOME qualified females who could be MLB umpires in the relevant labor pool, I think the inference of discrimination is appropriate here.The Slate article to which Professor Secunda refers discusses a successful lawsuit by a secretary named Bernie Gera, who in 1973 won a five-year-long lawsuit for the right to umpire a Single A game. Also, as I noted earlier, Pam Postema sued for sex discrimination after she was let go in 1991 (allegedly--according to Michelle Tsai of Slate--for too often throwing players out of games) and settled out of court.
Another reason Paul's suspicion of gender discrimination seems valid is the blatant nature of baseball players' and officials' discrimination against the few women serving as sports reporters and baseball teams' front office officials. You hear comments like "women don't belong here" and harshly misorynistic attacks. So it's not a stretch to suspect that one reason there are so few female umpires is that same anti-women bias.So is the absence of female officials in Major League Baseball and other pro sports leagues a reflection of discrimination by MLB and those other leagues, or is it a more cultural/social problem in how we treat and regard and women? Or is it something else?
It's true that . . . probably few women apply or get the requisite training (e.g., a background in high school or college baseball). But "there aren't many women in this field at all" isn't just an alternative explanation to "they're keeping women out"; historically, fields with few women tend to feature more discrimination, precisely because women are seen as "outsiders" who "don't belong." A lot of the really bad cases of physical harassment, for example, tend to be about "the first women pipefitter at XYZ Corp." or "the first women firefighter in the City of XYZ," etc.
Richard T. Karcher, The use of players' identities in fantasy sports leagues: developing workable standards for right of publicity claims, 111 PENN STATE LAW REVIEW 557 (2007)
Joshua Peck, Note, Last resort: the threat of federal steroid legislation--is the proposed legislation constitutional?, 75 FORDHAM LAW REVIEW 1777 (2006)
Given that Celtics head coach Doc Rivers is a parent of a potential NBA player--point guard Jeremiah Rivers of Georgetown University--could the NBA fine Danny Ainge and Doc Rivers for sitting next to each other, even though it is a prerequisite of their job?I know the NBA would say it makes an exception in this instance since Ainge and Doc Rivers work together in running the Celtics, but it brings to mind other potential instances that might also, if less clearly, warrant exception.
Entertainment, Arts & Sports Law Society
Entertainment, Arts, and Sports Industry Breakfast
Saturday, March 31, 2007 8:30 a.m. to 1:30 p.m.
Florida State University, College of Law, Rotunda
425 W. Jefferson St., Tallahassee Florida
All Students and practitioners are welcome!!! Light Breakfast and Refreshments will be served
Terry Bowden, 1993 Coach of the Year, College Football Analyst, Motivational & Keynote Speaker, and FSU College of Law Alumnus
Michael McCann, Sports Law Professor, Representative of Maurice Clarett against the NFL, and Chair-Elect of the Association of American Law School's Sports Law Section
Dr. Thom Park, National Expert on Coaching Contracts
Jan Michael Morris, Representative of Venus & Serena Williams' Father
Steven Newburgh, Cast Attorney for Reality Television's Miami Ink
Rob McNeely, Entertainment Law Professor & Former Creed Counsel
Sponsored by Fowler White Burnett, Attorneys at law
Monday, March 26th, 4:00p.m. - The Business of College Sports. (Ryan McPhail, Titus Jackson â€“ student moderators)
Dr. Ronald Dick â€“ Duquesne University
Dr. Mark Nagel â€“ University of South Carolina
Dr. Kadie Otto â€“ Western Carolina University
Mr. Jimmy Sexton â€“ Memphis, TN
Dr. Nathan Tomasini â€“ The University of North Carolina at Chapel Hill
Friday, April 6th, 4:00p.m. - Division I College Recruiting: The good, the bad, and the ugly. (Ryan Ivey â€“ student moderator)
Coach Jimmy Adams â€“ Head Boys Basketball Coach, Raleigh-Egypt High School
Mr. Chad Alexander - Midwest Area Scout, Baltimore Ravens
Mr. Bobby Burton - Chief Operating Officer and Editor-in-chief Rivals.com
Dr. Joe Luckey â€“ Director, Center for Athletic Academic Services, The University of Memphis
Dr. Fritz Polite â€“ The University of Tennessee-Knoxville
Friday, April 13th, 4:00p.m. - Congress, Intercollegiate Athletics, and Higher Education: Is college sports a tax-exempt enterprise or an unrelated business? (Shawn Fayard, Walt Barton - student moderators)
Prof. Paul Anderson â€“ Marquette University Law School - National Sports Law Institute
Prof. John Colombo â€“ The University of Illinois Law School
Prof. Michael McCann â€“ Mississippi College School of Law
Dr. Dave Ridpath â€“ Ohio University
Prof. Linda Sharp â€“ University of Northern Colorado
Dr. Ellen Staurowsky â€“ Ithaca College
Mr. Welch Suggs â€“ University of Georgia
Friday, April 20th, 4:00p.m. - White v. NCAA: Greed or Monopsony â€“ A discussion of the case's legal merits. (Carrie Sordel, Dawnyell Fletcher â€“ student moderators)
Prof. Paul Batista â€“ Texas A&M University
Mr. Tony Bonds â€“ Suntrust Financial
Mr. Patrick Byrne â€“ The University of Memphis
Mr. Ramogi Huma â€“ College Athletes Coalition
Dr. Allen Sack â€“ The University of New Haven
M. Christine Holleman, Recent Development, Fantasy foot-ball: illegal gambling or legal game of skill?, 8 NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 59 (2006)
Aaron Levy, Note, A risky bet: the future of pay-to-play online fantasy sports, 39 CONNECTICUT LAW REVIEW 325 (2006)
Paul D. Trumble, Comment, â€œKnickelâ€� and dime issues: an unexplored loophole in New York's genetic discrimination statute and the viability of genetic testing in the sports employment context, 70 ALBANY LAW REVIEW 771 (2007)
This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited.According to Seltzer, she wanted to demonstrate to her students that, from a legal perspective, the NFL's statement was false. Namely, the NFL's warning fails to make any mention of "fair use."
Glenn George, Playing cowboys and Indians, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 90 (2006)
John A. Gray, Sports agent's liability after SPARTA?, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 141 (2006)
Jonathan Jenkins, Note, A need for heightened scrutiny: aligning the NCAA transfer rule with its rationales, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 439 (2006)
Peter Kreher, Antitrust theory, college sports, and interleague rulemaking: a new critique of the NCAA's amateurism rules. 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 51 (2006)
Andrew E. Rice, Eddy Curry and the case for genetic privacy in professional sports, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2006)
Ronnie Wade Robertson, Comment, Tilting at windmills: the relationship between men's non-revenue sports and women's sports, 76 MISSISSIPPI LAW JOURNAL 297 (2006)
Leena M. Sheet and A. Benjamin Katz, Protecting rights in videogames: next generation licensing, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 124 (2006)
George D. Turner, Note, Allocating the risk of spectator injuries between basketball fans and facility owners, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 156 (2006)
Lindsay C. Ferguson, Comment, Whistle blowing is not just for gym class: looking into the past. present, and future of Title IX, 39 TEXAS TECH LAW REVIEW 167 (2006)
Jodi A. Janecek, Comment, Hunter v. hunter: the case for discriminatory nonresident hunting regulations, 90 MARQUETTE LAW REVIEW 355 (2006)
Richard Southall, assistant professor of sports and leisure commerce at the University of Memphis, said highly paid coaches exercise too much control over the players who are struggling financially while making millions for their schools. "Either it's a free market, or it's not," Southall said. "The NCAA says it can't constrain coaches, but yet it can constrain athletes. It's very hypocritical."
* * *"If you're a really poor kid, you can get a full grant-in-aid and additional money from Pell grants. If you're not desperately poor and not wealthy enough for your parents to send you an extra couple hundred dollars a week, you still fall short," said Stephen Ross, director of the Penn State Institute for Sports Law, Policy and Research. Ross said a star athlete can generate as much as $1 million annually by attracting fans. In a free market, he said, that athlete could be worth a salary of $100,000 per year.
* * *
Rodney Fort, a sports economics professor at Washington State University, said studies show that playing Division 1 football or basketball is a full-time job. He said scholarship athletes, who fit the description of an employee in IRS guidelines, can lose their "jobs" without guarantees.
For more from the article, click here.
"The allegations made by Ted Saskin against me regarding player emails are false. To date I have not made any public comment since leaving the NHLPA, and I won't now comment on, or get embroiled in current NHLPA issues. That said, I will be glad to respond to questions from players on any NHLPA policies or practices while I was the executive director. I am unaware of an instance where the security of a single player's email or other personal information was compromised."
It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.....The N.C.A.A.'s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.....Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.'s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.
During the first quarter of tonight's radio broadcast of the Celtics game against the Houston Rockets,one of the Celtics players managed to fake out the referee to get a call to go his way. The referee who made this call was Violet Palmer, who happens to be a woman. Cedric Maxwell, the analyst / sidekick on the Celtics broadcast team, proclaimed "Get back in the kitchen!" when she made the call. Max's partner, Sean Grande, tried to throw him a lifeline by pointing out that they had both been previously impressed by Palmer's officiating, but Max continued "Get back in the kitchen and fix me some bacon and eggs!"Somewhat surprisingly, at least from my vantage point, neither the Celtics nor WEEI, which broadcasts Celtics games, will take any disciplinary action against Maxwell. Instead, he has agreed to apologize on-air. Just compare that "sanction" with the firing of former Fox baseball announcer Steve Lyons for, at worst, ambiguously negative comments about Latinos. I recognize that Lyons' had a bigger and national audience, that he had made other curious remarks in the past, and that Fox may have employed a stricter on-air policy than WEEI, but I still find the outcomes odd. Maxwell made an unquestionably sexist remark--should it really be tolerated without sanction? Is no suspension or even reprimand in order?
Nobody has ever been worse at their job, in any vocation â€“ not even the people who work at Home Depot selling Christmas trees. When Violet started officiating a few years ago, she was so incompetent, players and coaches actually avoided arguing with her â€“ whenever she screwed up, they would always glance around helplessly, the same way you would if your puppy dropped a deuce on the living room carpet.I'm not sure if that criticism is true, but assuming for a moment that it is, might Stanford social psychologist Claude Steele's research on stereotype threat be relevant? Stereotype threat reflects the behavioral effects that result from an individual's belief and fear that his or her actions will confirm a negative stereotype of a group to which he or she belongs. As I discuss in a work-in-progress on the Wonderlic Test, stereotype threat typically manifests in anxiety, which can impair performance and trigger a self-fulfilling prophecy: because of stress related to one's group membership, one underperforms, thereby unintentionally corroborating the underlying group stereotype. Thus, the situational presence of stereotype threat, rather than the person's aptitude, skill, or talent, may generate the behavior that confirms the underlying stereotype. As I write:
[M]inority undergraduates tend to perform less well academically when they believe there are achievement gaps relative to race. In a recent study of undergraduates, African-American students performed worse than their white classmates when told that they are taking an exam that measures â€œtheir intelligence.â€� However, they performed equal to white students on the same exam when told that they are taking an â€œexperimentalâ€� exam.Whether or not stereotype threat exists with Violet Palmer, it's clear that she has an unusually tough job. Granted, I know that no one forced her to take this job; she undertook it knowing, at least on some level, what she would be getting into (although that doesn't justify those problems). Moreover, I genuinely applaud the NBA--and, yes, Commissioner David Stern, who I often criticize--for being the first and still only major pro sports league to employ a female referee. But I hope that the league and its teams do all they can to ensure that her gender not be used to marginalize her or to interfere with her work, otherwise it would seem that she is being set up to fail. With that in mind, should there really be no sanction for a radio announcer who, on-air, says of Violet Palmer that she should "get back in the kitchen"? Are we in the year 2007 or 1947?
The incident occured about 10 minutes into a scrimmage . . . during the [American University] Eagles' offseason and a few weeks before United's season opener. [The AU player] was preparing to take possession of the ball when Stoitchkov approached on the run and, in an apparent attempt to disrupt play, slammed his left foot into [the student's] right leg, which, according to the lawsuit, was planted on the field. Stoichkov, who according to the lawsuit, was angry that game officials did not disallow an AU goal moments before the tackle . . . -- was assessed a red card. Both coaches agreed to suspend the game. [The AU player] was removed by ambulance and, later that day, had a four-inch metal plate inserted in his leg.Plaintiff now seeks $5 million in compensatory and $5 million in punitive damages. Stoichkov, now the Bulgarian national coach, was quoted by the Post's Soccer Insider blog:
"I'll leave that to my lawyers but as far as I know this case is closed. I don't care what the press say. I am concentrating on my work in Bulgaria and the national football team."Duke Sports Law expert Paul Haagen was interviewed for the story, and offered this observation. He offered this on-point observation:
"What this will turn on is expectations -- the expectations of the participants, what the game was about and whether it went beyond those level of expectations . . . . Did the incident go beyond the normal course of the game?"One wonders what expectations typically are for a scrimmage, as opposed to a competitive game. A player might expect and therefore assume risks in a competitive game that would not be a part of scrimmage play. I'll also be interested to see whether a court treats the AU player according to the less-plaintiff-friendly standard typically applied to professionals (in that he was playing against a pro team), or the more plaintiff-friendly standard that typically applies in amateur or recreational sports injury cases.
"Intentional tackling is not a customary part of the sport or activity of sack racing," said the appellate decision. "Sack racing is not a contact sport."Having participated in just a few such races over the years, I'm not qualified to render an opinion on the level of contact typically expected in this activity. At least according to e-how, however, contact isn't a part of the rules of potato-sack racing.
A new trial will decide if Martin LaMalfa, 43, of Concord Township, was negligent when he tackled cousin Anthony Aquila, 53, of Wickiffe, during the sack race Aug. 17, 2003, at a LaMalfa family reunion at the Outdoor YMCA in Perry Township.
"It is clear from the record that roughhousing between two grown men was done in a spirit of childlike competition between cousins which unfortunately due to their respective ages and physical limitations may negligently have caused some serious damage," the appellate court said in its opinion.
Michael J. Jurek, Note, Janitor or savior: the role of Congress in professional boxing reform, 67 OHIO STATE LAW JOURNAL 1187 (2006)
Shane Mecham, The house that consensus built: consensus building in stadium construction, 38 URBAN LAWYER 1087 (2006)
"I don't know why I didn't sign [the two-year deal]," Cordero said. "I wanted to. The Players Association thought I had a good case and they wanted see how it turned out. Even if I lost my arbitration case, I wasn't going to lose. It's still a lot of money. It's still more money than I ever would have thought [I'd make]."Assuming this media report of Cordero's feelings is accurate, what does it say about the role of the agent and the players' association? I understand that the players' association has a collective interest in trying to maximize salary averages for each position, and that Cordero's contract affects future contracts of other closers, but who is looking out for Cordero? He is, after-all, a member of the MLBPA; should he be dissuaded from his instinct, or was the MLBPA correct in taking a more guiding approach?
I think the answer would be the same as when you have a business traveler who spend much of the time on the road. You can engage in harassment or discrimination on the road, but the law that would apply to such situations is where the employer is located.Thanks to Paul for this comment.
Hell Hath No Fury Like a Fan Scorned: State Regulation of Sports Agents, 31 UNIVERSITY OF TOLEDO LAW REVIEW 511 (1999)Congrats to Phil & to Baltimore!
Involuntary Nonservitude: The Current Judicial Enforcement of Employee Covenants Not to Compete--A Proposal for Reform, 57 SOUTHERN CALIFORNIA LAW REVIEW 531 (1984) (with Henry M. Schaffer)
Not at the Behest of Nonlabor Groups: A Revised Prognosis for a Maturing Sports Industry, 24 BOSTON COLLEGE LAW REVIEW 341 (1983)
In addition to a $5 million signing bonus, the Agreement provided an annual base compensation of $2 million for Jordan. . . . The Agreement provided that Jordan was to make himself available for four days, not to exceed four hours per day, during each contract year to produce television commercials and print advertising and for promotional appearances. The parties agreed that the advertising and promotional materials would be submitted to Jordan for his approval, which could not be unreasonably withheld, fourteen days prior to their release to the general public. From 1995 to 2000, Jordan appeared in several television commercials and a large number of print ads for MCI.After Worldcom filed for bankruptcy in 2002, Jordan eventually sought payments of "$8 million--seeking $2 million for each of the payments that were due in June of 2002, 2003, 2004, and 2005."
Jordan's agent, David Falk . . . , testified that "there might have been twenty more companies that in theory might have wanted to sign him" but that Jordan and his representatives wanted to avoid diluting his image.Jordan's financial and business manager, Curtis Polk, admitted that
Jordan did not return to the endorsement marketplace to try and replace the revenue he was to be paid under the Agreement. . . . Polk explained that Jordan did not wish to expand his "pitchman efforts with new relationships" because of his primary goal of becoming the owner of an NBA team.Jordan argued that his pursuit of NBA ownership relieved him of an obligation to mitigate damages by seeking other endorsement opportunities. The court didn't buy it:
In short, the argument that Jordan acted reasonably by focusing solely on his efforts to become an NBA team owner is a red herring. It may have been reasonable for Jordan to focus on becoming an NBA team owner in the scope of Jordan's overall future desires but that does not mean it can support a determination that he was relieved of his obligation to mitigate damages in response to MCI's rejection of the Agreement.
Furthermore, Jordan did not have to pursue any endorsement, such as one that would be beneath a celebrity of Jordan's stature, e .g., endorsing a product likely to be distasteful to Jordan or his fans. Jordan had the duty to take reasonable efforts to mitigate, such as by seeking another endorsement for an established, reputable company for compensation near to what he received from MCI. MCI has established that there is no genuine issue as to whether Jordan made reasonable efforts to do so. The Court finds that as a matter of law Jordan has failed to mitigate damages.
Danette R. Davis, The myth & mystery of personal seat licenses and season tickets: licenses or more?, 51 ST. LOUIS UNIVERSITY LAW JOURNAL 241 (2006)
Ian Dobson, The wrong gameplan: why the Minnesota Vikings' failure to understand Minnesota's value dooms their proposal for a new stadium and how the team can improve its future chances, 33 WILLIAM MITCHELL LAW REVIEW 485 (2006)
Cristen F. Hartzog, Note, The â€œpublic useâ€� of private sports stadiums: Kelo hits a homerun for private developers, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOY LAW 145 (2006)
Michael J. Cramer and James M. Swiatko, Jr., Did Major League Baseball balk? Why didn't MLB bargain to impasse and impose stricter testing for performance enhancing substances?, 17 MARQUETTE SPORTS LAW REVIEW 29 (2006)
Casey Shilts, Kate Jett & Brett Lashbrook, Major League internationals with Minor-League titles: let them in. Let them play. 17 MARQUETTE SPORTS LAW REVIEW 69 (2006)
J. Gordon Hylton, The Major League Baseball Players Association and the ownership of sports statistics: the untold story of round one, 17 MARQUETTE SPORTS LAW REVIEW 87 (2006)
Robert H. Lattinville & Robert A. Boland, Coaching in the National Football League: a market survey and legal review, 17 MARQUETTE SPORTS LAW REVIEW 109 (2006)
Martin J. Greenberg, Termination of college coaching contracts: when does adequate cause to terminate exist and who determines its existence? 17 MARQUETTE SPORTS LAW REVIEW 197 (2006)
Timothy Davis, Avila v. Citrus Community College District: shaping the contours of immunity and primary assumption of the risk, 17 MARQUETTE SPORTS LAW REVIEW 259 (2006)
Patricia A. Cervenka, Free shoes for primary and secondary schools: playing by the rules of Title IX, 17 MARQUETTE SPORTS LAW REVIEW 285 (2006)
Janis K. Doleschal, Managing risk in interscholastic athletic programs: 14 legal duties of care, 17 MARQUETTE SPORTS LAW REVIEW 295 (2006)
Anne M. Wall, Intellectual property protection in China: enforcing trademark rights, 17 MARQUETTE SPORTS LAW REVIEW 341 (2006)
Lindsay M. Potrafke, Comment, Checking up on student-athletes: a NCAA regulation requiring criminal background checks, 17 MARQUETTE SPORTS LAW REVIEW 427 (2006)
James M. Swiatko, Jr., Index: Sports Law in Law Reviews and Journals, 17 MARQUETTE SPORTS LAW REVIEW 451 (2006)
Nikki Dryden, For power and glory: state-sponsored doping and athletes' human rights, 13 SPORTS LAWYERS JOURNAL 1 (2006)
Sean M. Hanlon, Athletic scholarships as unconscionable contracts of adhesion: has the NCAA fouled out?, 13 SPORTS LAWYERS JOURNAL 41 (2006)
Robin M. Preussel, Successful challenge, ruling reversed: why the Office of Civil Rights' survey proposal may be well-intentioned but misguided, 13 SPORTS LAWYERS JOURNAL 79 (2006)
Jay T. Cohen, Comment, I'll trade you Scott Podsednik for Alex Rodriguez: fantasy trademark and copyright protection, 13 SPORTS LAWYERS JOURNAL 133 (2006)
Michael Levinson, A sure bet: why New Jersey would benefit from legalized sports wagering, 13 SPORTS LAWYERS JOURNAL 143 (2006)
Anders Etgen Reitz, The NHL lockout: the trickle-down effect on European hockey, 13 SPORTS LAWYERS JOURNAL 179 (2006)
Jeffrey Hoffmeyer, Note, Fourth down and an appeal: the nonstatutory exemption to antitrust law, 13 SPORTS LAWYERS JOURNAL 193 (2006)
Antoinette Vacca, Boxing: why it should be down for the count, 13 SPORTS LAWYERS JOURNAL 207 (2006)
Bram A. Maravent, Is the Rooney Rule affirmative action? Analyzing the NFL's mandate to its clubs regarding coaching and front office hires, 13 SPORTS LAWYERS JOURNAL 233 (2006)
Jenni Spies, â€œOnly orphans should be allowed to play Little Leagueâ€�: how parents are ruining organized youth sports for their children and what can be done about it, 13 SPORTS LAWYERS JOURNAL 275 (2006)
Tulane Moot Court Mardi Gras Invitational, Problem and Winning Brief, 13 SPORTS LAWYERS JOURNAL 291 (2006)
Alcohol manufacturers spend $5.7 billion/year on advertising and promotion. Young people typically view 2000 beer and wine commercials annually, with most of the ads concentrated in sports programming. During prime time, only 1 alcohol ad appears every 4 hours; yet, in sports programming, the frequency increases to 2.4 ads per hour. Research has found that adolescent drinkers are more likely to have been exposed to alcohol advertising. Given that children begin making decisions about alcohol at an early ageâ€”probably during grade schoolâ€”exposure to beer commercials represents a significant risk factor. Minority children may be at particular risk. ----Committee on Communications, Children, Adolescents, and Advertising, 118 Pediatrics 2563-2569 (2006)).Also, why do MLB and each individual team have official beer sponsors? And why can you buy beer mugs and glasses on MLB.com? And why do big league teams sell to beer companies the naming rights to certain seats, such as the Washington Nationals' Miller Lite Beer Pen? Heck, if beer is such a worry to MLB, why is it even sold at games?
Alcohol ads appear about once every four hours during prime-time programming, 2.4 times per hour during sports programs, and about three times per hour for ads that are within sports programs, like billboards in a stadium. On popular teen and adult TV shows, alcohol is consumed in 71 percent of all programs and 65 percent of teen programs, but only 23 percent of the episodes associated alcohol with negative consequences. These depictions are of interest because modeling occurs more often when behaviors are unpunished, according to social learning theory.
Heavy exposure to alcohol advertising leads to the view that drinkers possess the positive qualities displayed-such as being attractive, having positive attitudes about drinking, drinking heavily and thinking that it is acceptable, and driving after drinking. In fact, the American Academy of Pediatrics found that 80 percent of young people think drinking is acceptable if there is a designated driver.
----Bradley S. Greenberg and Sarah F. Rosaen, Television and Young People: Violence, Sex, Booze, and Greed, 2005 Mich. St. L. Rev. 857 (2005).
Professor Michael McCann (Moderator). Assistant Professor of Law, Mississippi College School of Law; Chair-Elect, AALS Section on Sports and the Law; and Co-Founder, The Project on Law and Mind Sciences at Harvard Law School. Professor McCann holds an LL.M. from Harvard Law School, a J.D. from the University of Virginia School of Law, and a B.A. from Georgetown University. While a Visiting Scholar/Researcher at Harvard Law School, he worked for Alan Milstein in Clarett v. National Football League.
Alan Milstein. A partner at Sherman Silverstein Kohl Rose & Podolsky in Pennsauken, New Jersey, Mr. Milstein holds a J.D. from Temple University School of Law, M.A. from the University of Kansas, and B.A. from the University of Maryland. He litigated on behalf of Maurice Clarett in Clarett v. National Football League, a case involving a prominent college football player seeking early entry into the NFL. He also litigated on behalf of two jockeys in King v. Jockeys' Guild, a case involving disabled jockeys who were denied disability funds from their guild. He periodically represents other professional athletes in litigation.James Carroll. A partner at Carroll, Warren & Parker in Jackson, Mississippi, Mr. Carroll holds a J.D. from the University of Mississippi School of Law and a B.A. from Millsaps College. He litigated and negotiated on behalf of Jerrell Powe, a prominent high school football player seeking to attend the University of Mississippi and play for their football team, but who ran into objections from the NCAA over academic eligibility.
But after three cars failed inspection during Sunday's qualifying session, NASCAR decided it had up the ante to deter teams from continuously pushing the envelope....Still, NASCAR stopped short of kicking the teams out of the race, a move many believe would be the ultimate punishment. "We're going to get tough with the competitors when they push the credibility of the sport," France said Tuesday during his state of the sport address.... Kenseth and Kahne had their qualifying times thrown out after inspectors discovered illegal holes in the wheel wells, which could have improved aerodynamics. Evernham maintained the holes had been covered with duct tape that apparently fell off before the Dodge was inspected. But Pemberton said NASCAR believed the tape had been cut. Riggs and Sadler's cars both had modifications that allowed air to leak out of the trunk area. It was discovered before qualifying and had not been announced by NASCAR before Tuesday. Waltrip, meanwhile, had a suspicious substance in the intake manifold of his Camry. The part was seized before qualifying, and the car was impounded after the session.
Diane Heckman, One Nation, Under God: freedom of religion in schools and extracurricular athletic events in the opening years of the new millennium, 28 WHITTIER LAW REVIEW 537 (2006)
Lindsay A. Oliver, NCAA: a lesson in cartel behavior and antitrust regulation, 8 TRANSACTIONS 7 (2006)
Wiese, a die-hard fan of the Chicago Bears, signed a pledge in front of a crowd at a Decatur bar last Friday night that if the Bears lost Sunday's Super Bowl, he'd change his name to that of the man who led the Indianapolis Colts to victory.From a legal perspective, I'm not sure he's bound to keep it (Contracts experts please chime in), but there's also the issue raised in some commentary of whether he's allowed to change it. Perhaps a certain Colts QB will have something to say about whether he's got a protectable property interest (right of publicity) in his good name. Illinois law (see 735 ILCS 5/21-101) provides:
Final Score: Colts 29, Bears 17.
So on Tuesday, Wiese went to the Macon County Courts Facility and started the process of changing his name.
"I made the bet, and now I've got to keep it," said the 26-year-old, who lives in Forsyth, just north of Decatur.
If any person who is a resident of this State and has resided in this State for 6 months desires to change his or her name and to assume another name by which to be afterwards called and known, the person may file a petition in the circuit court of the county wherein he or she resides praying for that relief. If it appears to the court that the conditions hereinafter mentioned have been complied with and that there is no reason why the prayer should not be granted, the court, by an order to be entered of record, may direct and provide that the name of that person be changed in accordance with the prayer in the petition. . . .[A]ny person convicted of a felony in this State or any other state who has not been pardoned may not file a petition for a name change until 10 years have passed since completion and discharge from his or her sentence. A person who has been convicted of identity theft, aggravated identity theft, felony or misdemeanor criminal sexual abuse when the victim of the offense at the time of its commission is under 18 years of age, felony or misdemeanor sexual exploitation of a child, felony or misdemeanor indecent solicitation of a child, or felony or misdemeanor indecent solicitation of an adult, or any other offense for which a person is required to register under the Sex Offender Registration Act in this State or any other state who has not been pardoned shall not be permitted to file a petition for a name change in the courts of Illinois. . . .No word on whether Mr. Manning nee Wiese has a felony record (although if he's the same Scott Wiese that participated in this this U-Wisconsin science fair, that seems unlikely)...
We will have to wait for the United States Anti-Doping Agency (USADA) to organize an appeal process, since both are American athletes, before any formal sanction can be pronounced. Who knows, USADA may subscribe to a suggestion that both athletes, in separate sports, were ambushed by a roving squad of Nazi frogmen and injected against their will with the prohibited substances.
In addition to experiments with voodoo hexes, we've also studied fans watching sports. In one study, subjects watched as a player shot baskets. Spectators were more likely to perceive that they had caused his success if they had first been asked to visualize his success (â€œImagine the ball falling through the hoopâ€�).For more, check out Emily's post on The Situationist. You can also read an article she co-authored entitled,â€œEveryday Magical Powers: The Role of Apparent Mental Causation in the Overestimation of Personal Influence,â€� which appears in the August issue of the Journal of Personality and Social Psychology.
In another experiment conducted at a live basketball game (Princeton vs. Harvard), some spectators were given a task before the start of the game to think about how each of the starting players could contribute to it. Other audience members were not given this assignment (they instead were led to think about the players' appearances). At halftime, those who had thought about the players' potential contributions to the game reported having had more of an impact on the game than those in the control condition.
In another study, people watching the NFL Super Bowl on television felt more responsible for that game's outcome the more they thought about the game while watching it. Never mind that all of them had watched the game in front of a television at the campus student center.Why would that be? Maybe the better question is, why not? Although the perception of mental power is (probably) without rational basis, the illusion of magic is comforting and, perhaps, adaptive. Belief in magic gives us hope, causal explanations, and the illusion of control â€“ all of which we tend to crave â€“ at times when any of those things might be hard to come by. Fears can be assuaged, threats can be tamed, stress can be eased, physical constraints can be transcended, and smoldering embers of hope can be rekindled when magic is possible.
Corporations don't exactly have a good track record when it comes to learning counterintuitive information about human decision making and then using it responsibly. Rather, the best approach for maximizing shareholder profit is to discover some seemingly-illogical detail about the human brain, use that knowledge to sell more widgets, and then convince the public that their naÃ¯ve (and incorrect) beliefs about how they make choices are, in fact, correct.Daniel Engber over at Slate discusses how the NFL is cracking down on Super Bowl parties, provided those parties are "public gatherings" rather than "private showings." (thanks to Sports Law Blog reader Tony Swanagan for the heads up on this story). The real issue here, however, is how the NFL is interpreting section 110 of the copyright law, which enables citizens to show games to large crowds, provided they do not charge and provided they are "only using 'a single receiving apparatus of a kind commonly used in private homes." Does a big-screen plasma TV count as a "single receiving apparatus of a kind commonly used in private homes"? Engber writes:
Take big tobacco: as Jon Hanson and others have documented, after figuring out that nicotine was addictive and could compel people to buy Marlboros, cigarette companies made a concerted effort to both up nicotine concentrations in their products and convince people, through advertising, that they were rational actors who were not easily manipulated.
From the perspective of an entity that is charged, through our legal rules, with making money (and not with doing social good), it makes little sense to alter peoples' situations to get them to be better consumers and then tell them that you are doing it and that it matters. Why, that would be as silly as announcing a weak-side blitz to the quarterback before the play. Sure, it would be the nice, ethical thing to warn decent gentlemen like Manning and Rex Grossman of the imminent threat, but it's not part of the game we've developed. Football is a game where you can get blind-sided.
Given the rapid changes in video technology and consumer spending habits, it's very difficult for the courts to make these determinations. That means the NFL lawyers have to decide for themselves when a screen is too big and it's time to send a threatening letter.Have you placed a monetary bet on tonight's big game while in Pennsylvania? Well if you have, the Pennsylvania Attorney General's office is sorry to say (through Heidi Ruckno's article in the Wilkes Barre Citizens Voice) that you have probably broken Pennsylvania law:
Unless you're in Vegas today, you might to want think twice about placing a bet. If you threw $5 into the office pool or bet your brother-in-law $10 that the Bears defense couldn't handle Peyton Manning's offense, you likely broke Pennsylvania law.Last but not least, be sure to check out dre cummings' excellent Sports Law Blog post on the Rooney Rule in light of both head coaches in tonight's game being African-American.
According to Nils Frederiksen, a spokesman for the Attorney General's Office, the only legal forms of gambling in Pennsylvania are the state lottery, small games of chance such as Bingo, betting on horse races and the newly approved slot machine gambling. â€œIt's a law by exclusion,â€� Frederiksen said. â€œThe law doesn't say you can't have an office betting pool, but it does say that gambling is illegal in Pennsylvania except for those things.â€�
Seeing baseball by television is too confiningâ€¦..To see the fresh green of the field as The Mighty Casey advances to the bat, and the dust fly as he defiantly digs in, is a thrill to the eye that cannot be electrified and flashed through spaceâ€¦.What would Christy Mathewson, Smokey Joe Wood, Home Run Baker, Eddie Collins, Frank Chance, Tris Speaker, Ty Cobb, Rube Marquard and those old-timers think of such a turn of affairsâ€” baseball from a sofa! Television is too safe. There is no ducking the foul ballâ€¦
For my last post, I chose a truly intriguing aspect of European Sports Law - the self-awarded legal "immunity" enjoyed by FIFA and its National Football Associations.
Under Article 62 (2) of the FIFA Regulations [r]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. I'm not going to go deep into the legal questions a provision of this kind entails, namely in the area of regulation and the relations between regulatory and judicial entities. Suffice to say that in Europe (as in the US or any other mildly civilized world...) the right to obtain redress in a court of law is a fundamental right of any citizen. The recent Belet report, finally approved by the European Parliament, clearly states that the submittal of claims in civil courts cannot be the subject of disciplinary action by FIFA, even if there is the need to preserve the integrity of FIFA's competitions. The report further challenges FIFA to amend its regulations so that balance can be struck between the individual right to address a civil court and the organization of competitions.
This obscure provision went relatively unnoticed for many decades, until sport became big business. The money involved in sport spurred the movement towards court rooms of which the Bosman decision is perhaps the most visible result. The aftermath of Bosman (it bares great resemblances to baseball's first cases as far as freedom of movement arguments are concerned) is ironic. It is a harsh decision that basically shattered football's transference system as it was know at the time, with well-documented effects to competitive balance in European Football. After Bosman, European courts have been cautious in their approach to sporting matters, afraid to once again disrupt football well-established model. Notwithstanding the increasingly lenient stance displayed by the judiciary, FIFA reacted violently to Bosman, enforcing Article 62 (2) in an attempt to preserve its regulatory power over football. Several cases have highlighted FIFA's recent stance: in Portugal, Gil Vicente, a small Premier League club was relegated because it submitted an action in a Portuguese Administrative Court, seeking to authorize the registration of one of its players, in what latter became known as the "Mateus Case". The case may yet end up in European Courts and it would come as a surprise if Article 62 were to be deemed compliant with European Law. There is no organizational goal or competitive integrity end that can justify this type of â€œimmunityâ€�. In fact, restrictions and its advantageous effects should be assessed in court.
After going through some of the American case-law involving professional leagues, I now wonder: what if an MLS franchise were to challenge any of the MLS rules in a court of Law? How would Americans react to FIFA's attempt to block the claim by imposing Article 62 on club and league?
P.S. - This was my last post. I deliberately chose to focus on football because it is the one sport that will allow us to adequately compare American and European case-law in the future. American sports have always been business and have merited legal treatment in accordance with the status. Still American courts have managed to take into account the specific features of sporting organizations and competitions. I believe the American Model is of great value to its European counter-part in this time of major changes.
I would like to thank the Sports Law Blog team for this invitation and especially Michael McCann. It has been a true honor. This blog is excellent. I would also like to thank the commentators for their great comments.
The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).
Waters seemed to recognize the risks of his position. â€œPlaying strong safety in the NFL, it's either kill or be killed like â€˜Survivor,'â€� Waters said.For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.
In the wake of the Broncos' Darrent Williams' murder in Denver, and other shootings in that city involving pro athletes, the NBA this past week ordered its security forces in all 29 cities to come up with a list of clubs and other night spots that should be made off-limits to players. Once the clubs are identified, with the help of local law enforcement, the league will send a directive to teams mandating that players avoid those spots or be subject to a substantial fine.Setting aside, for a moment, the dubious merits of this policy, it does not appear to enjoy the benefits of collective bargaining. The closest textual support it may obtain from the NBA-NPA collective bargaining agreement derives from Article VI, Section 11, which delineates "league investigations" into player behavior:
Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.I suppose the NBA could characterize the policy as reflecting a broader and extended league investigation into player behavior, and that such an investigation has been contemplated by the respective parties to the CBA. There are several other sections from Article VI that might also lend the NBA textual support, but none appear sufficiently relevant. And without collectively-bargained support, it, like any non-collectively-bargained working condition, would be subject to antitrust review--and as Joe Rosen and I detail in our Case Western Reserve Law Review article, antitrust law is not especially tolerant of unilaterally-imposed league prohibitions on working conditions, particularly given the existence of the labor exemption, which is premised on the belief that employees are better off negotiating together than individually, particularly when negotiating wages, hours, and working conditions. Also expect a possible objection from NBPA head Billy Hunter, who might, on behalf of the NBPA, file an unfair labor practice charge with the NLRB, particularly if this nightclub prohibition--which, according to Lawrence, will enjoy police assistance--constitutes "spying on employees."
Even if Stern's idea has merit, why does it have to be imposed by the league office on all 29 teams? It's better to leave this type of player conduct issue to the individual clubs. Stern's centralism actually makes it more difficult for individual clubsâ€“particularly coaches, who have far less power on most teams than star playersâ€“to maintain their own discipline. Paternalism reduces the incentive for individuals to take greater responsibility for their own actions.Update 2: David Wilson over at Sports On My Mind has a substantive analysis of this topic.
McCann notes how arbitrary the nightclub prohibition is; will players also be prevented from drinking or returning home to â€œbad neighborhoodsâ€� in the name of protecting the league's image? Stern will certainly grab as much authority as he can before his media allies turn on him or, more likely, the lawyers get involved.
FRIDAY, FEBRUARY 2
8:30 Introductory Remarks
8:45 Breaking into Sports and Entertainment Law: A Practical Primer
A panel of experienced practitioners will discuss the strategies commonly used to competently begin representation of sports and entertainment clients. The panel will provide guidance in how to gain the substantive expertise in the economics, business models, and basic legal issues needed to engage potential clients. This panel is for beginning practitioners but can be a refresher for experienced sports and entertainment lawyers as well.
Kirk T. Schroder
Other panelists to be determined
9:45 Negotiating Sports and Entertainment Property Rights in the Digital Age
The channels of delivery for sports and entertainment content are rapidly expanding with the advent of new digital media and the convergence of traditional delivery methods. A lawyer negotiating property rights fees must assess the value of and protections for the product, as well as regulatory concerns in each instance of discrete transfer of rights. With the advent of visual or audio placement to cell phones, YouTube and similar web sites, video, iPODs, socially networking web sites, video games, satellite radio, and scores more of varied media, the lawyer/agent's role has expanded exponentially. In this session the panel will provide an essential analysis of how to deal with the ever-changing landscape of this topic.
Moderator: Glen Robinson
Panelists: George Kliavkoff, Byron Marchant, Frank Golding, Philip Hochberg
11:15 The Fundamentals of Representation in Film and Television Productions
In order to meet the demand from many new media of delivery of entertainment content, there has been a major increase in production activity throughout the world. Many states and foreign countries are actively competing to attract productions to their areas. This panel will focus on identifying the primary roles and responsibilities of the attorney in assisting his or her client â€” whether the client is an actor, director, writer, or studio production crew â€” and instructing the attorney on the basic elements of movie and television production. Topics will include a review of typical issues involved in the development, financing, production, and distribution of film and television content.
Moderator: Kirk T. Schroder
Panelists: Bennett Fidlow, Don Mandrik, Endi Piper, Michael Steger
12:30 Lunch Recess
1:30 The Fundamentals of Representation in the Music and Sound Recording Industries
Technology is far outpacing the legal and business issues in today's music and sound recording industries. More and more people each day are receiving music and sound entertainment through a variety of innovative means of distribution to the consumer. This panel will discuss the basic elements involved in representing recording artists, musicians, and music companies, and contrast those elements with the various legal and business challenges facing the music industry as a result of certain new technologies.
Moderator: Kirk T. Schroder
Panelists: Jeff Cohen, Jamerah Dudley, Philip Goodpasture, Elva Holland
1:30 Too Young or Too Old to Play? The Legal Issues Surrounding Age Limitations in Professional Sports
Most professional sports impose age and/or educational limits on their incoming athletes. Not only do these criteria change on a regular basis, but they continue to be challenged in the courts. Constitutional, antitrust, and labor issues dominate this ongoing controversy. The members of this esteemed panel have been at the forefront of these issues, and their commentary will be candid, insightful, and of immense value in planning for the future.
Moderator: Michael McCann
Panelists: Philip Evans, J. Gordon Hylton, Rick Karcher, Kristi Schoepfer
3:00 The Basics of Representing Professional Athletes
This superb panel will discuss the key elements to consider when representing professional athletes (or athletes hoping to become professional). The panel will discuss playing and marketing contract negotiations in individual and team sports, client fee arrangements, breach of contract (by the player or the team), tortious interference from other prospective lawyers or agents, labor issues, and ethical issues that face any attorney in this field.
Moderator: Kimberly Haynes
Panelists: Donald Dell, Kimberly Holland, Ryan Rodenberg, Larry Woodward
Jeff Cohen, Partner, Miller, White, Zelano & Branigan
Donald Dell (UVA Law, 1964), Senior Vice President, SFX Tennis; Founder of ProServ; Co-Founder, Association of Tennis Professionals; Legendary figure in sports marketing and representation
Jamerah Dudley, Co-Owner, National Artists League
Philip Evans (UVA Law, 1988), President, National Basketball Development League (NBDL)
Bennett Fidlow, Partner, Schroder Fidlow, PLC
Frank Golding (UVA Law, 1993), Assistant General Counsel, ESPN
Philip Goodpasture (UVA Law, 1985), Partner, Williams Mullen
Kimberly Haynes, Kim Haynes Law
J. Gordon Hylton (UVA Law, 1977), Professor, Marquette University Law School
Philip Hochberg, Law Offices of Philip R. Hochberg
Elva Holland (UVA Law, 1982), Video Producer and Entertainment Lawyer
Kimberly Holland, CEP, Icon Management
Rick Karcher, Professor, Florida Coastal School of Law
George Kliavkoff (UVA Law, 1988), Chief Digital Officer, NBC Universal
Don Mandrik, Associate, Arnall Golden Gregory
Byron Marchant (UVA Law, 1987), Executive Vice President and General Counsel, BET
Michael McCann (UVA Law, 2002), Professor, Mississippi College School of Law
Endi Piper (UVA Law, 1998), Director of Business and Legal Affairs, TV One, LLC
Michael Steger (UVA Law, 1993), Law Offices of Michael Steger
Glen Robinson, Professor, University of Virginia School of Law
Ryan Rodenberg, Associate General Counsel, Octagon
Kristi Schoepfer, Professor, Winthrop University
Kirk T. Schroder, Partner, Schroder Fidlow, PLC
Larry Woodward, Partner, Shuttleworth, Ruloff, Giordano & Swain
CO-DIRECTORS: Carnell L. Cherry, Robby Forbes, Kirk T. Schroder, and Sarah Wigfall
[The defendants] move to continue trial of this matter, which is currently scheduled to begin on January 22, 2007, by two days. Thus Defendants request that trial begin on January 24, 2007.Several attorneys at the New Orleans law firm Sher, Garner, Cahill, Richter, Klein & Hilbert, LL.C., authored the motion. Clearly, that's a firm where time devoted to sports watching (and perhaps also "celebrating" while doing so) is valued. Tough to complain about that.
As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game -- the first such game in the franchise's forty-year history -- against the Chicago Bears in Chicago, Illinois on January 21, 2007, at 2:30 p.m. In order to accommodate all fans, including the majority of the jury pool, the parties involved in this case, and the counsel involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of the trial be pushed back two days to January 24, 2007.
Counsel for the remaining defendants in this matter have been contacted, and none objects to this motion nor its requested relief. Numerous attempts have been made to contact Plaintiff's counsel by telephone and by e-mail, with no response from Plaintiffs' counsel.
While there are certainly virtues to maintaining a large size roster in fantasy football, it would be neither fair nor reasonable to change the league's roster size after the draft is conducted. If the Commissioner had wanted a nine-player roster, he should have suggested this change before the draft was held -- possibly before the draft order was selected. Not only does the possibility exist that the Commissioner would not have suggested this rule change had the computer granted his team a higher pick, but the possibility also exists that a team such as Hermann's Head might have drafted differently had the Commissioner's proposed rule change occurred prior to the draft. Therefore, for the aforementioned reasons, I rule in favor of Hermann's Head. The Yale Football League roster size shall remain unchanged at eight active players (and just two active running backs) for the 2006 season.There's some more great stuff on Sports Judge.
Michael Conlin & Patrick M. Emerson, Discrimination in hiring versus retention and promotion: an empirical analysis of within-firm treatment of players in the NFL, 22 JOURNAL OF LAW ECONOMICS & ORGANIZATION 115 (2006)In addition, our frequent guest Chad McEvoy alerts me to the availability of his new co-authored article, which is not on Westlaw but can be downloaded free of charge from the embedded link:
Christopher T. Pickens, Comment, Of bookies and brokers: are sports futures gambling or investing, and does it even matter? 14 GEORGE MASON LAW REVIEW 227 (2006)
Erin A. Stanton, Student article, Home team advantage?: The taking of private property for sports stadiums, 9 NEW YORK CITY LAW REVIEW 93 (2005)
Cowlishaw is absolutely right that it is all speculation. The fans and the media are definitely permitted to speculate and formulate opinions about whether McGwire took steroids, whether they affected his performance, and whether there should be an "asterisk in the record books." But should writers voting on post season awards, including the Hall of Fame, be held to a different or higher standard, or at a minimum, a standard that is clearly defined? [Maybe it is clearly defined, and I'm just not aware of it.] I mean we're talking about the Hall of Fame, not some all-time top ten best players list put together by some columnist or blogger. Hall of Fame voters, in essence, seem to be permitted to make their own subjective determinations that McGwire did in fact take something. And even further, that the something they think he took is probably on the banned substance list that was subsequently developed and tested for after McGwire played.
"But there is a problem with writers taking the moral police role in making these determinations, because we have learned now that Major League Baseball is testing, that steroid users don't always look like steroid users. Even though he also appeared before Congress, Rafael Palmeiro was not on the list of highly suspected steroids users. He's not a big-muscle-type guy. Then, after wagging his finger defiantly, Palmeiro goes out and tests positive. And so have a lot of relief pitchers who also don't fit the Popeye mold... They guess a decisive "guilty" on McGwire based on the size of his forearms. But they say an emphatic "no chance" when confronted with Cal Ripken Jr.'s amazing consecutive-games streak of 2,632. Look, I am not suggesting anything about Ripken. Just pointing out that it is somehow completely off limits to guess how a player managed to push himself to play every day for more than 14 years, while it's a duty to guess how a player added 30 to 40 pounds of muscle during the course of a career."
Roger I. Abrams, Game-fixing in the National Game, 1 FLORIDA ENTERTAINMENT LAW REVIEW 1 (2006)
Zachary C. Bolitho, Note, When fantasy meets the courtroom: an examination of the intellectual property issues surrounding the burgeoning fantasy sports industry, 67 OHIO STATE LAW JOURNAL 911 (2006)
Plaintiff does not allege a mere rules violation, but, given [his] vulnerable position and the "STOP" warnings on players' jerseys, that [the defendant players] went beyond conduct ordinarily accepted during the course of competition and into willful and wanton conduct. . . .The court further noted that full development of a factual record -- particularly with respect to the location of the puck at the time the defendants struck the plaintiff -- might justify a conclusion that defendants did not act in a wanton and willful manner.
[T]he factual allegations above meet the requirements for pleading a cause of action based on willful and wanton condcut. Plaintiff alleged not only that [defendant players] broke the rules of hockey, but that they broke a rule with such special emphasis that players' jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding [defendants'] actions--they allegedly checked [plaintiff] when he was defenseless and in a position of acute vulnerability--that evince a conscious disregard for his safety.
[T]he consent granted by each participant is not specific to the similarly situated participants, but instead to the risks associated with the game, regardless of whether the risks stem from co-participants or some other source. . . .I find the court's reasoning on this point rather odd. The court seems to complicate tort law considerations by talking about organizational "negligence leading to injuries caused by other parties' negligence," versus "negligence leading to injuries caused by others parties' recklessness." The court would bar a plaintiff's suit under the former theory, but allow it under the latter. In effect, the court is saying that a non-participant owes a general duty to avoid negligence, but not negligence leading to injuries caused by other-party negligence.
[B]ased on assumption of the risk principles, it stands to reason that the contact sports exception should be extended to protect the organizers and coaches from liability for negligence leading to player conduct that cannot otherwise form a basis for liability due to the contact sports exception.
M. Bradford Preston, Note, Sheldon Kennedy and a Canadian tragedy revisited: a comparative look at U.S. and Canadian jurisprudence on youth sports organizations' civil liability for child sexual exploitation, 39 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1333 (2006)
Adam L. Sheps, Note, Swinging for the fences: the fallacy in assigning ownership to sports statistics and its effect on fantasy sports, 38 CONNECTICUT LAW REVIEW 1113 (2006)
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, andâ€”where an on-site search would be impracticableâ€”seizure of either a copy of all data or the computer equipment itself. â€œ[L]aw enforcement personnel trained in searching and seizing computer dataâ€� (designated â€œcomputer personnelâ€�) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, â€œappropriately trained personnelâ€� would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.
2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled by its original compiler as the â€œTraceyâ€� directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analystâ€”here the advice of Computer Investigative Specialist Agent Joseph Abboudâ€”agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.
3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.
The Tigers are satisfied they won't see a recurrence of the right wrist and forearm inflammation that sidelined Joel Zumaya for three games of the American League Championship Series.Did Zumaya breach his contract? As readers are aware from our discussion of Ben Roethlisberger's misadventures in motorcycling, sports leagues frequently bar players from engaging in dangerous outside activities. Major League Baseball's provision, however, is more limited than the NFL's. It provides:
Why? Club president and general manager Dave Dombrowski told WXYT-AM (1270) on Wednesday the team had concluded Zumaya's injury resulted from playing a video game, not from his powerful throwing motion.
The Player agrees that he will not engage in professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.In other words, baseball's clause only involves dangerous "other sport[s]", not other activities. While some Gamers might argue that video games are a sport (if poker is, why not?), that's probably not going to cut it in contract interpretation land.
Among others who applied for NFL franchises in 1957 and 1958 w[as] Lamar Hunt, of Dallas, . . . [The NFL] suggested [Hunt] try to purchase the Chicago Cardinals and transfer that franchise. [Hunt] conducted unsuccessful negotiations with the [Chicago team's owners]. . . .Hunt, having been rebuffed in his efforts to purchase the Cardinals or obtain a new NFL franchise, began secretly to plan and organize a new league. He was then 27 years old, without experience in professional sports. He surveyed various cities and made tenative overtures to individuals who seemed likely prospects for becoming owners of franchises.North American Soccer League v. National Football League, 465 F.Supp. 665 (S.D.N.Y. 1979)
An important element of stability for the NASL has been furnished by individuals or families who own member soccer clubs, and also own NFL football clubs. Perhaps the foremost among these "cross-owners" is Lamar Hunt of Dallas, Texas, a sporting world legend in his own time. Hunt, as owner of the Kansas City Chiefs football team, was in the early 1960's one of the founders of the American Football League, subsequently merged with the NFL. Hunt is now chairman and sole owner of the NFL Kansas City franchise. Hunt also is a part owner of the Chicago Bulls of the National Basketball Association, and the founder of the World Championship Tennis circuit. In 1967 Hunt purchased a Dallas soccer franchise which, in 1968, became the NASL's Dallas club, called the Dallas Tornado. [An] affidavit pays eloquent and, in my judgment convincing, tribute to the past and continuing importance to the struggling NASL of Hunt's presence and participation. . . .North American Soccer League v. National Football League, 505 F.Supp. 659 (S.D.N.Y. 1980), rev'd 670 F.2d 1249 (2nd Cir. 1982)
[T]he NFL cross-ownership ban [i]s a source of harm to the NASL sufficiently grave and immediate to satisfy Second Circuit and Clayton Act Standards. Loss of the stabilizing Hunt . . . presence would be injurious in itself. . . .
The issues presented are interesting, complex and to a degree novel, such as the NASL's perception of wealthy, sportsminded individuals as components of a market for which rival leagues compete. One suspects that until now Mr. Hunt had thought of himself as a competitor, and not a commodity. . . .
Defendants have submitted an exchange of letters between Lamar Hunt and Pete Rozelle. . . . The correspondence concerns Mr. Hunt's willingness and efforts to comply with the NFL policy resolutions on cross-ownership. Mr. Hunt's letters reveal his concern with being forced into divestiture at a time when there was little or no market for NASL franchises. His perceptions as to investor reaction to the sale of a "Hunt" business are instructive:"The soccer investment of myself and my children (for which I am obviously responsible) is a Very substantial one unfortunately, at this point more than I expected. Though the picture looks infinitely brighter for the sport, it is still a long way from reaching fruition for the investors and, in fact, at present there is virtually no market for a going club especially one owned by a 'Hunt.' (We have a historically bad record for selling any business for buyers seem to feel that anything we are selling must really be a 'dog.'"
We must visualize individual sports team investors such as Lamar Hunt (NASL Dallas Tornado and NFL Kansas City Chiefs), . . . as the economic equivalents of cellophane, finishes and fabrics, shoes, or protective systems.
A few months after Alex Rodriguez signed his $252 million contract with the Texas Rangers, a deal negotiated by Boras, A-Rod was quoted in a New York newspaper as saying that he had really hoped to sign with the Mets. That seemed utterly bizarre, and a little silly: A-Rod had more negotiating leverage than any player in the history of baseball and yet he wound up playing someplace other than where he wanted to play. He could've played for the Mets â€“ maybe not for $252 million, but maybe for $200 million. The difference between his playing for the Mets or not playing for the Mets was a whole lot of numbers on bank statements.So maybe unlike A-Rod, Matsuzaka told Boras, in essence, "I appreciate you trying to get me as much money as possible, but I'm signing with Boston, even if doing so might make you look bad or somehow tarnish your tough-guy reputation." And if Matsuzaka indeed said something like that, it would serve as an important and appropriate reminder that the client should always call the shots, even if the agent is of the highest profile and greatest influence in the sport. This is a subject that I examine in my Brooklyn Law Review article "It's Not About the Money."
According to former members, the organization is led by a sometimes-clueless, well-meaning volunteer board that usually yields to Roddick's my-way-or-the-highway mother, Blanche.In fairness to the Foundation, the Palm Beach Post story, which perhaps revealingly does not have an author listed, is clearly one-sided against the Foundation and particularly against Blanche Roddick. I'm sure there are two sides to this story, and we only get quotes from people who have an ax to grind. Moreover, back in August, Fort Lauderdale Magazine named the Andy Roddick Foundation the best charity in South Florida. I don't know much about the award or the quality of competitors for it, but it suggests that the Foundation is doing something right.
"They don't know what they're doing," said Brian Edwards, a Hollywood agent who resigned last year as director of celebrity development. "Blanche is extremely difficult. She and Andy are classless when it comes to dealing with celebrities. Believe me, I'm spreading the word." Edwards said incidents with celebrities over the years culminated in 2005 when two of his clients, whom he declined to name, waited six hours at a California airport for the plane to take them to Boca for the gala. He quit. "I suggested that we send them two gift baskets to apologize," Edwards said. "The total came to $733, but Andy has refused to pay. The bill still had not been paid two months ago. Real stars know. They aren't showing up because Andy and his mom have got delusions of grandeur when it comes to his star power, especially with their attitude."
The list of the personalities advertised for last weekend's event included former Dallas Cowboys star and dancing champ Emmitt Smith, former Detroit Lions star Barry Sanders, dirty celebutante Paris Hilton and New York Yankees slugger Alex Rodriguez. The names of actors Matt Damon and Russell Crowe were whispered in deep background. Who showed up: none of the above.
Those who paid up to $1,000 to play poker with big-deal celebs ended up with Paris' C-list sister, Nicky; the Dolphins' Jason Taylor; popster Mandy Moore; and tennis stars Venus and Serena Williams.
Charities often recruit nonprofit board members for their fundraising ability or prestige in the community rather than for their ability to lead the organization . . . [they] may lack corporate or legal expertise. Because charitable board members are generally not compensated and may lack expertise, they have little incentive to actively oversee the activities of the charitable organizations they serve.So maybe the Andy Roddick Foundation's troubles--to extent they are accurately depicted by the media--have more to do with the nature of charitable organizations than anything else. Also, if the Foundation isn't very good, then couldn't contributors simply donate to other foundations--wouldn't the market for charitable contributions respond accordingly?
I consider this a â€œjump the sharkâ€� moment for Stern because the seemingly arbitrary decision to change the ball represented the zenith of Stern's bureaucratic (and some would say autocratic) management policies. The new ball's failure may signal at least a temporary end to Stern's increasing centralization of power.See also
I've long complained about the existence of professional sports commissioners, arguing that even the title â€œcommissionerâ€� confers a quasi-governmental authority on what is nominally a business executive's position. One problem is that commissioners have no equity stake in the organization that they are nominally CEO ofâ€”Baseball Commissioner Bud Selig being a quasi-exception, given that he owned the Milwaukee Brewers while serving as â€œacting commissionerâ€�â€”and absent this equity, commissioners trend towards bureaucratic management. (See Ludwig Von Mises's classic work Bureaucracy for a detailed explanation of bureaucratic management.)
Stern is Exhibit A for bureaucratic management. His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005. Another is the arbitrary 19-year-old age requirement designed to keep high school graduates from playing immediately in the NBA. And then there's the classic example of Stern silencing the NBA's ownersâ€”his own bossesâ€”who dare to criticize the league's management or officiating in public. As I noted in an earlier post, if a CEO of a publicly-traded company tried to silence his critics, all hell (and the SEC) would break loose.
Suzanne Wilhelm, â€œIs someone riding around a golf course from shot to shot really a golfer?â€� The Supreme Court determines the essence of the game of golf--and what the decision could mean for learning disabled students in higher education, 32 JOURNAL OF COLLEGE AND UNIVERSITY LAW 579 (2006)
Negotiations between the Red Sox and Japanese pitcher Daisuke Matsuzaka have essentially broken down, a source familiar with the talks said late last night, adding that unless there is an abrupt change of course, Matsuzaka will not be signing with the Red Sox before Thursday's midnight deadline.ESPN's Peter Gammons has more damaging commentary from the Sox, with the implication that the Sox believe Boras is not negotiating in good faith:
Attempts to reach Matsuzaka's agent, Scott Boras, were unsuccessful last night. However, the well-placed source blamed Boras for stubbornly being unable to get over the flaws in the Japanese posting system, saying that he has been unwilling to negotiate and that he has acted disinterested in even making a deal.
While Boras remains adamant in asking for close to a Jason Schmidt average annual value, Red Sox officials feel that the superagent prefers to keep Matsuzaka in Japan for two more years, then get $140 million for seven years after 2008.So is Boras not making a good-faith effort to get Matsuzaka signed? Keep in mind, as noted by Professor Emily Houh in The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, 2005 Utah Law Review 1 (2005), the absence of "good-faith" in contract negotiations often does not have legal significance:
Section 205 of the Restatement of Contracts explicitly takes the position that it, "like the Uniform Commercial Code ... , does not deal with good faith in the formation of a contract." Thus, the common law obligation of good faith fails to reach the most troubling forms of contractual bad faith: those that occur during contract negotiation and formation.But even if the absence of good faith is not legally meaningful, what about the practical implications of Matsuzaka returning to the Seibu Lions--the same team that gave him a farewell event in front of 36,000 fans and that presumably doesn't want to return the $51 million? Can he really go back? Hasn't that bridge already been crossed, if not burned?
The simple, coloured display panels are attached to each vest and connected to a small computer, about the size of an iPod, strapped to each player's body. These computers communicate wirelessly with a central control system, installed at the side of the court, which keeps track of all relevant statistics as the game goes on.The uniforms--known as TeamAwear--are the creation of Mitchell Page, a University of Sydney student who "came up with the idea while playing computer sports games, which use graphics and icons to tie statistics to the virtual players and track their performance. He wondered how such on-screen graphics in sports telecasts could be made available to players and spectators at the ground."
Luminescent bars running up the side of a vest indicate the points scored by each player, while lines on their shoulders show the number of fouls against them. Panels on each player's chest indicate when the game time or shot clock is running low, and panels on their back show which team is winning . . . this gives players greater confidence in their team's tactics, say the researchers involved.
"Team sports uniforms already communicate information visually," like a player's name, says Mitchell Page, who developed the system at the University of Sydney. "We wanted to augment the existing team sports uniform model to communicate more relevant information, such as a player's stats and performance."
In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?
Later today, Rick's statement should be available here. Good luck Rick!WASHINGTON (AP) â€” New York Giants linebacker LaVar Arrington is tentatively scheduled to testify before Congress this week at a hearing involving his former agent.
Arrington, a three-time Pro Bowl player; NFL Players Association general counsel Richard Berthelsen; and a law professor [Rick Karcher] were on a "tentative witness list" e-mailed to The Associated Press on Tuesday by House Judiciary Committee press secretary Terry Shawn.
Arrington did not immediately return a phone message left for him by the AP on Tuesday night.
The Subcommittee on Commercial and Administrative Law has scheduled an oversight hearing for Thursday to examine the NFL Players Association's arbitration process. Lawmakers will be looking into the NFLPA's suspension of Arrington's former agent, Carl Poston, stemming from his handling of a contract the linebacker signed with the Washington Redskins near the end of the 2003 season.
Akron; Alabama; Arkansas (2 profs); Baltimore; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Chapman; Cincinnati; Cooley; Connecticut; University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola â€“ LA; Marquette (3 profs); Miami (2 profs); Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); Missouri-Kansas City; New England; New Mexico; New York University; North Dakota; Nova Southastern; Nebraska; Northeastern; Northern Kentucky (2 profs); Notre Dame; Ohio Northern; Ohio State; Oklahoma; Pepperdine; Penn State-Dickinson; Puerto Rico; Richmond; St. John's; Saint Louis; Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn (2 profs); Western New England; West Virginia; Whittier; Widener (2 profs); William & Mary; Willamette (2 profs); YaleWhile it's nice to see some new additions to this list, a number of schools appear to have lost their sports law faculty members: Barry, DePaul, Illinois, Maryland, North Carolina, and St. Thomas (MN).
AP Top 25 College Football
Top 25 Graduation Rates
Teams that should be dropped from bowls on overall graduation success rates: Hawaii 49, LSU 49, California 44, Georgia 41, Texas 40.