Blog Archive

Is the NBA in Jeopardy?

Message posted on : 2007-07-25 - 19:55:00

The scandal involving NBA referee Tim Donaghy has certainly drawn considerable attention over the last week. In an excellent post here on our blog, Geoffrey examined whether there are persons who may be able to bring civil claims against Donaghy.

But what about the bigger question of where the NBA is going in the wake of this scandal? With that in mind, ESPN's Henry Abbott e-mailed several people earlier today with the following question:
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.

Henry posted most of my comments, but here they are in their entirety:

I believe the NBA will recover from this scandal. The league has too many fans, in the U.S. and abroad, and there is too much money on the line in television and other entertainment contracts for this scandal to sink the ship. Also, while the NBA's product may not be as good as it was in the 80s, it's still undoubtedly the world's best basketball league, and that will help it absorb the scandal's fallout. In addition, I don't know of any individual scandal that ruined a major American sports league or sports organization. Major League Baseball overcame the Black Sox scandal, Pete Rose's betting-on-baseball scandal, and the steroids scandal; college football has overcome a wide array of corruption scandals; and even little league baseball overcame Danny Almonte lying about his age. It doesn't seem that individual scandals have the staying power to destroy popular sports leagues and organizations, and I don't think this one will prove to be an exception.

Having said that, I do wonder about the NBA's leadership going forward. I find it odd how the commissioner has seemed so intent on policing the players--the "kids," as he's sometimes called them, even though they are grown men--when he has overlooked a number of harmful league and team behaviors, such as teams purposefully losing games and now a ref apparently betting on games with mobsters. It would seem that instead of waging a personal war against high school players, do-rags, and night clubs, he should take a closer look at the people in his own house, the ones who may look far more like him than Allen Iverson.

Along those lines, I question the value of the NBA's internal investigation into Donaghy's activities. Stern's basic argument appears to be that Donaghy is the NBA's bad apple, and once the bad apple is removed, the barrel is saved. This is fairly standard corporate behavior when individuals engage in wrongdoing, such as sexual harassment in the workplace or hazing that occurs on college campuses: once it's clear to an organization that defending the individual is no longer worth it, the individual will be characterized as unusually malicious and a disgrace--in effect, the individual, who was previously "one of the guys," suddenly transforms into an evil person, a "rogue, isolated criminal" as Stern put it yesterday (even though Donaghy hasn't even been charged with a crime yet).

By focusing on the disposition and apparent choices of Donaghy, however, the NBA may miss to what extent its own policies and practices enabled a situation in which Donaghy could engage in wrongdoing--just like how companies and schools often miss how their own decisions enabled, or even promoted, certain apples to go bad (think about hazing and how it occurs year-after-year, with completely different students--it's not about the students, it's about the situation that colleges allow to exist). Fault, then, often needs to lie farther and wider than merely the individual wrongdoer, including all the way up to the top of the tree.

But since Stern seems motivated to limit the controversy to Donaghy, I question whether the NBA's internal review can successfully identify how far fault should lie. Even though he pledged yesterday to "do everything possible to analyze our processes," he vehemently maintained that the problem was limited to Donaghy; how can the NBA now conduct a thorough review when the Commissioner has already established its conclusion?

I believe the NBA would be better served by hiring an independent investigation agency or appointing an independent commission to look into Donaghy's actions and related NBA practices and procedures. An internal review may be in the best interests of top NBA officials, but I don't think it's in the best interests of the NBA.

Posted By : Michael McCann

Can Roger Goodell Keep Michael Vick out of Training Camp?

Message posted on : 2007-07-24 - 21:22:00

NFL Commissioner Roger Goodell has told Michael Vick to not attend the Atlanta Falcons' training camp while the NFL reviews his indictment for allegedly participating in an interstate dog-fighting operation. Goodell cites the league's new personal conduct policy as supplying him with the authority to make such a demand.

Does it?

As Rick examined in April, the new policy offers little in the way of specificity and much in the way of tough-sounded rhetoric. Many corporate conduct policies do the same, furnishing companies with significant latitude to discipline employees through open-ended, highly-interpretative phraseology.

In terms of the specific language allegedly empowering Goodell, one key phrase is, "Conduct that undermines or puts at risk the integrity and reputation of the NFL will be subject to discipline, even if not criminal in nature." That certainly sounds good, but what does it really mean? As Rick wrote, there will always be inherent concerns with disciplining players in the absence of a conviction:
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.

Assuming the NFLPA stays on the sideline, will Goodell be able to use this de facto restraining order of Vick to say, in essence, an indictment of a player automatically empowers the Commissioner to prevent a player, for an indefinite period of time, from reporting for work? And is that a good or bad thing when the player's sole right to appeal entails an appeal to the very guy who came up with the penalty--the Commissioner--in a process that could produce documents eligible for subponena in a criminal prosecution?

Posted By : Michael McCann

The Influence of Fox v. FCC on Sports Broadcasts

Message posted on : 2007-07-24 - 07:10:00

We are pleased to announce that Mark Conrad will be guest blogging in early August. Mark is an associate professor of legal and ethical studies at Fordham University's Schools of Business, and has written extensively on sports law and business.

Last week, he published an op-ed in the Sports Business Journal entitled "Court's Indecency Ruling a Relief to Sports Broadcasters." The piece examines Fox v. FCC, a decision handed down last month by the U.S. Court of Appeals for the Second Circuit that makes it more difficult for the Federal Communications Commission to fine broadcasters, including sports broadcasters, for broadcasting swears uttered by players and fans. Mark's piece is subscription only, but here is an excerpted version:
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 “indecency� and “profanity� to isolated instances known as “fleeting expletives� were “arbitrary and capricious.� 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 “sanitizing� the production by avoiding miking to produce as “safe� 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.
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."

For related posts on the FCC's regulation of sports, see Greg's "CBS Apologizes for Halftime Show Ending" (2/1/2004) and Howard's "New Sports Media v. Old Sports Media" (4/17/2007). For a number of related posts on free speech in sports, see this link. Howard also has an excellent law review article on that topic, "Free Expression and the Wide World of Sports."

Posted By : Michael McCann

Baseball Draft Bonuses Down This Year Despite Skyrocketing Revenues

Message posted on : 2007-07-23 - 09:45:00

In the June 25 - July 1 issue of Sports Business Journal (subscription only), Liz Mullen reports that the MLBPA is investigating complaints from agents that major league clubs are being threatened by MLB to negotiate "league-recommended" signing bonuses for this year's amateur draft picks that are about 10 percent lower than last year's bonuses ("Baseball union reviews complaints"). However, MLB executive VP Rob Manfred denied that clubs were being told that recommended amounts were mandatory and that clubs were being threatened with penalties if they didn't sign the player for the recommended amount. But he did tell Mullen that the recommended amounts overall were "roughly 10 percent" below last year's recommendations due to the changes in the CBA negotiated late last year, which increased clubs' leverage in negotiating contracts with draft picks. According to Manfred, "Because of that increased leverage, we fully expect that (clubs) would pay less." Last October, I discussed these negotiated changes, which include: (1) clubs that fail to sign their first or second round draft pick will receive the same pick in the subsequent draft as compensation, and (2) pushing the signing deadline back to August 15. [However, I reviewed the 220 plus page document and did not find these provisions. These changes can most likely be found in the Major League Rules, which are adopted by the league.]

I've always thought that the baseball draft operates like the "wild west" because there are rules in place that are consistently violated and nobody cares. For example, scouts and agents frequently violate the rules by engaging in "pre-draft dealing," meaning that the scout and agent verbally agree on a signing bonus amount prior to the draft. But then, these verbal agreements are not legally enforceable anyways. Also, the baseball draft is unique from the other sports because agents working on behalf of players don't even have signed representation agreements (the draft takes place during the college baseball post-season and signing agreements with agents jeopardizes their NCAA eligibility). In baseball, agents also consistently violate the NCAA rules by communicating and negotiating directly with the clubs before and after the draft.

And getting to the subject of this post, my "lawyer brain" has also never understood this concept of "league recommended bonuses" in baseball. These recommended bonuses are sometimes referred to as "slot money," meaning that the player gets the league recommended bonus amount for the slot (or pick) in which the player was drafted. Each year the league has discretion to set the amounts of these recommended bonuses, yet the clubs are not required to adhere to the league recommended bonus amounts. And if a club suffers adverse consequences by the league for paying a player more than the recommended bonus amount, it would constitute a violation of the CBA. So then in that event, do the league recommended bonuses have any teeth? By the way, is anybody asking themselves at this point, if the clubs have greater leverage this year as a result of the new CBA revisions, then why would it be necessary for the league to even reduce the recommended amounts from last year, let alone threaten the clubs?

Well, amazingly (sarcasm), bonuses are in fact down exactly 10 percent this year across the board! Baseball America reported last week that "all 15 first-round picks who have come to terms have signed for slot money or less, and all of those slots have represented a 10 percent reduction from the 2006 slots." [I think they should just rename recommended bonuses as "restraints on trade."] Mullen noted that "compensation for rookies in other major American sports has been increasing, but agents say that signing bonuses for baseball players selected in the amateur draft have been down or flat in the last few years despite skyrocketing MLB revenue." Although approximately half of the players in the first round have yet to sign and there is still three weeks left until the signing deadline, I wouldn't expect the remaining bonuses to be much more than slot money when clubs will now get an additional draft pick in the same slot next year if they don't sign them this year.

Posted By : Rick Karcher

Mark Alesia Honored for Empirical Study of Intercollegiate Athletics Financing

Message posted on : 2007-07-22 - 11:34:00

Congratulations are in order for Indianapolis Star reporter Mark Alesia, who was honored this week by the Society of Professional Journalists with its 2006-07 Investigative Reporting Award for the empirical study (Part I, Part II) he conducted in April 2006 on the extent to which schools and the NCAA profit from star players, how university general funds and students contribute to athletic departments, and the interplay of those contributions with the NCAA's tax exempt status as a non-profit entity. From the study, he built the NCAA Financial Reports Database, which is the most detailed, publicly available database of college athletic department financial information ever assembled.

Among Alesia's findings is that fewer than 1% of NCAA athletes generate more than 90% of the NCAA's money, which confirms the incredible economic value of basketball and football stars to colleges and universities. For instance, he found that 43 public schools in the 2005 March Madness tournament paid out a combined $12 million in expenses relating to the basketball players (including scholarships and tuition and other expenses), which proved to be a very good investment, as those same players generated $267 million in revenue for those schools. Where did the $255 million difference go? "The rest was used to pay for coaches, administrators and money-losing sports -- basically, all others except football."

Alesia also found
that athletic departments at taxpayer-funded universities nationwide receive more than $1 billion in student fees and general school funds and services, and that without such outside funding, fewer than 10% of athletic departments would be able to support themselves with ticket sales, television contracts and other revenue-generating sports sources. In fact, most would lose millions of dollars.

The award committee at the Society of Professional Journalists praised other noteworthy aspects of Alesia's study:

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.

Judges praised Alesia for challenging “how college teams are funded. In so doing, it effectively attacks institutional support and student fees subsidizing college sports. Database work incomparable … brave work with compelling results.�

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 “the 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. … You folks have done a great service to higher education!�

Congrats again to Mark, whose work will undoubtedly assist those of us at the newly-formed College Sport Research Institute.

Posted By : Michael McCann

Scott Boras and Craig Hanson: Can an Agent Advise a Player on Too Many Things?

Message posted on : 2007-07-22 - 00:31:00

It is safe to call Scott Boras the most successful agent in Major League Baseball. A lengthy and fascinating article dated May 22, 2007 in the LA Weekly by Jeffrey Anderson provides an excellent overview of Boras' business.
Posted By : Michael McCann

Professor Darryl C. Wilson on Reaction to Michael Vick's Indictment

Message posted on : 2007-07-21 - 18:56:00

Stetson University College of Law Professor Darryl C. Wilson, who co-authored a leading sports law case book (with Robert McCormick and Matthew McKinnon) and has been certified as an NFL contract advisor, responds to my comments and those of several readers on Michael Vick's indictment. Among other points, he questions why so many of us care about the indictment and the underlying behavior that Vick is alleged to have committed, while we do not appear concerned about many other, arguably worse forms of behavior that many of us are routinely engaged in (e.g., we kill thousands of animals a day for meat, and yet dog fighting upsets us). Here are his comments:
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.

Posted By : Michael McCann

Making the NBA's Gambling Ref Pay

Message posted on : 2007-07-21 - 17:30:00

News broke this weekend of an ongoing FBI investigation into NBA referee Tim Donaghy. Donaghy, who seems to be a man of truly exemplary personal character, is accused of betting on NBA games (surely a violation of league rules), associating with low-level mobsters, and may have bet on games which he called as a referee. There are suggestions that he may have called games to enhance his prospects of beating the "spread." Of course, innocent until proven guilty and all that jazz. Donaghy may face serious criminal sanction, and has already resigned his officiating position, but might he also face civil liability? Some possible claimants:
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.

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.
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.

The only problem? By the time Donaghy gets done (unsuccessfully) fending of the FBI, his official residence will be the poor house.

Posted By : Geoffrey Rapp

The Legal Significance vs. Reputational Significance of an Indictment

Message posted on : 2007-07-21 - 15:43:00

ESPN columnist Mike Sando has an excellent column on how many have rushed to presume Michael Vick's guilt based on the indictment and its support documents, when there is a significant chance, based on the very demanding criminal conviction standard of "beyond a reasonable doubt" and on the fact that the government's evidence has not yet been studied or challenged, that Vick will be found not guilty.

As I wrote about a few days ago, 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.


Sando interviews a number of criminal lawyers for his column, including Maryland-based defense attorney Jonathan L. Katz, who tells him:
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):

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.

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.

Posted By : Michael McCann

Deuce McAllister's Business Empire

Message posted on : 2007-07-20 - 00:09:00

In a week dominated by news of Michael Vick's indictment, it's nice to read a positive story about an NFL player.

In the Jackson Clarion-Ledger, Jack Mazurak has a feature article on New Orleans Saints running back Deuce McAllister, his successful business investments, and his goals to revitalize Jackson, Mississippi (the state's largest city and capital).

A native of Mississippi and a former star at Ole Miss, the 28-year-old McAllister has built something of a business empire in Jackson: he owns Deuce McAllister Nissan (the number 1 selling Nissan dealership in Mississippi over the last three months) and a used car dealership, and also has significant financial interests in Deuce McAllister Volkswagon Audi Jaguar, a forthcoming Land Rover dealership, and a company devoted to historical restorations of old property in Jackson and to commercial real estate endeavors. He also runs the Catch 22 Foundation charitable group, and has donated over a million to Ole Miss to help build an indoor practice facility for the football team.

I'm interviewed for the story, and I discuss how McAlister is unique among professional athletes in pursuing such an expansive and successful business career during his playing career. Certainly, many star players enjoy endorsement deals, but not too many own multiple car dealerships and other companies.

I also think it speaks well of McAllister to recognize that his NFL income won't continue indefinitely--although not germane to a 7-year veteran like McAllister, the average NFL career only lasts three and a half seasons, and we've already discussed serious concerns about the NFL's pension and disability benefits for retired players. Along those lines, I suspect foresight and long-term financial views are not easily obtained when one is a professional athlete, making millions of dollars a year and enjoying the superstar life that goes along with it; the fact that McAllister is preparing for a lucrative post-playing career in the business world (as some other pro athletes have accomplished, such as former NBA star Dave Bing and The Bing Group), likely distinguishes him from the vast majority of players in his league and from those in the other major pro sports leagues.

In addition to showing his own business acumen, McAlister shows the wisdom of teaming up with business experts and delegating day-to-day responsibilities to his CEO, Matt Bataille, so that he can remain focused on his NFL career,--which, after rushing for over a 1,000 yards last season with an average of 4.3 yards per carry on a team that made it to the NFC Championship game, also seems to be going very well.

Posted By : Michael McCann

Baseball Quiz: Off-field and On-field Rules

Message posted on : 2007-07-19 - 12:37:00

Two nice tidbits from Jim Caple's Off-Base this week. Both relate to sports law, understood as the law governing sports.

First, Caple points out how San Diego's Chris Young manipulated the system in serving a 5-game suspension for throwing at the Cubs' Derrek Lee last month. Young pitched the Wednesday before the All-Star Game, then began his suspension with the next four games before the Break--games, Caple notes, in which Young almost certainly would not have pitched. Young then pitched in the All-Star Game, then sat out the team's first game after the Break--another game in which he likely would not have pitched. So Young was "suspended," yet in that time never missed a start, never missed a game in which he likely would have appeared, and got the honor of pitching in the All-Star Game (Motto: "This time, it counts, but not too much"). Caple argues, correctly, that this is a problem with MLB's system of suspensions as they apply to starting pitchers and to rules that allow the player to determine when he will serve his suspension.

Second, Caple presents the following pitching line for Oakland reliever Kiko Calero, last Thursday against the Twins.

2/3 IP, 1 H, 0 R, 0 ER, 0 BB, 0 K and one (1) pitch.

How could he pitch 2/3 of an inning (meaning he got two men out), give up one hit, and only throw one pitch?

Give your best guesses in the Comments (and no jumping to Caple's column for the answer). I will reveal the result tomorrow.

Posted By : Howard Wasserman

President Bush on Major League Baseball

Message posted on : 2007-07-18 - 13:43:00

ESPN's Karl Ravech snagged an interesting interview with President George W. Bush, who was managing general partner of the Texas Rangers from 1989 to 1994, during which time he turned an initial $800,000 investment into a $15,000,000 sale in 1994. As Howard discussed last December, Bush was a finalist for Baseball Commissioner in 1992, but the owners selected Bud Selig instead; obviously, history would be very different had Commissioner Bush run baseball and someone else run the country (for engaging "alternative histories," check out this account of Commissioner Bush and President McCain, and this one of Commissioner Bush rejecting inter-league play and limiting the 1994 baseball strike to only two weeks).

Here are some excerpts from Ravech's interview with the President, courtesy of Buster Olney's ESPN blog:
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?

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.

KR: Amen.

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.

KR: Commissioner?

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.

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.

Posted By : Michael McCann

College Sport Research Institute

Message posted on : 2007-07-17 - 21:21:00

Earlier today, Dr. Richard Southall of the University of Memphis announced the creation of the College Sport Research Institute (CSRI). The CSRI will serve as a national clearinghouse for college sports research, and will encourage and support sustained crossdisciplinary, collaborative college-sport research, serve as a consortium for college-sport researchers from across the United States, and disseminate research results to academics, college-sport practitioners, and the general public. It will also be a strong advocate for college athletes' rights and education.

I am honored to serve on the CSRI's Executive Board, which includes:
Director: Richard M. Southall of the University of Memphis
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 – Cortland

Board Members:
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 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.

In addition, CSRI will host an annual national conference. The first of these conferences, the Issues in College Sport Conference, will be held April 16-19, 2008 at the FedEx Institute of Technology on the campus of the University of Memphis. Leading researchers, practitioners, and college administrators will be invited to attend. In addition to two prominent keynote speakers, and three invited panels, the conference will include two days of juried academic presentations. In order to encourage undergraduate and graduate student participation, a student research competition will be held in conjunction with the conference. If you are a student writing about college sports issues, we encourage you to submit a paper. Here are the details:
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 Format

Line 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 southall@memphis.edu

Posted By : Michael McCann

Michael Vick Indicted: Who Let the Dogs Out (of State)?

Message posted on : 2007-07-17 - 18:43:00

Atlanta Falcons' quarterback Michael Vick was indicted earlier this afternoon by a federal grand jury in connection with the alleged dogfighting ring at his property in Smithfield, Virginia. According to ESPN and the Associated Press, Vick and several others were indicted for conspiracy to travel in interstate commerce in aid of unlawful activities and to sponsor a dog in an animal fighting venture. Apparently, he faces a maximum of six years in prison and a fine of $300,000. The interstate commerce derives from participants and pit bulls traveling to Virginia from South Carolina, North Carolina, Maryland, New York, Texas and other states, for the express purpose of commercialized pit bull fighting. Had the fighting ring featured local participants and local pit bulls, Vick wouldn't be dealing with this charge.

The court documents also describe grotesque conditions at the property, including a "rape stand," used to hold dogs in place for mating; an electric treadmill modified for dogs; a bloodied piece of carpeting; and evidence of dogs not being fed as a way of making them angrier. Other details are available here, and you can read the indictment in its entirety here. In short, the dogs were badly abused.

Keep in mind, however, Vick's involvement with the dog fighting has been a source of great speculation, and he has denied any knowledge. Nevertheless, the indictment--take it for what it is--paints Vick as a very active participant, including:
9. In or about early 2002, Vick [and another defendant] purchased approximately four pit bulls from Cooperating Witness 1.

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.
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.

Still, it will be interesting to see what the NFL does in response to the indictment and how the NFLPA responds to the NFL, if it elects to suspend or otherwise punish Vick.

Posted By : Michael McCann

Should Baseball Stadiums Stop Selling Beer to "Large" People?

Message posted on : 2007-07-16 - 17:31:00

A gruesome story from Yankee Stadium likely to lead to a lawsuit. Paul Robinson, visiting the Big Apple from Washington state, was enjoying a game last week when a large unidentified fan sitting a few rows behind him fell onto his head, snapping Robinson's neck:
"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.

"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."
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."

Obviously, the torts teacher in me asks, "Are the Yankees / Mets liable"? This is more than an academic question, since the Mets fan has filed suit against the stadium and beer vendor and it would be quite un-American for Mr. Robinson not to do so.

While stadium-goers are typically barred from recovering for injuries due to batted balls (see Greg's post here), that's because batted balls are considered an "inherent" part of the game. While some level of rowdiness and contact are to be expected when attending a game, the risk that a "large drunk fan" will fall onto one's neck is hardly integral to the game of baseball. New York also has a "dram shop" law, which provides
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?

Posted By : Geoffrey Rapp

NBPA's View of Commissioner Suspensions Opposite of NFLPA's

Message posted on : 2007-07-16 - 09:14:00

On Saturday, NBA players Ron Artest and Stephen Jackson were suspended by the league without pay for the first seven games of next season resulting from off-court legal issues. Artest pleaded no contest to a misdemeanor domestic violence charge involving a dispute with his wife, and Jackson pleaded guilty last month to a felony charge of criminal recklessness for firing a gun outside a strip club last fall. Jackson has publicly stated that he accepts his suspension. However, the union is comparing the penalties to other recent suspensions given to players for off-court misconduct and is considering appealing the suspensions. NBPA executive director Billy Hunter says, "Based on prior precedent, we think the suspensions are excessive. We plan to confer with the players and their representatives to consider all of our options for appeal." In 2001, Ruben Patterson received a five-game suspension after he accepted a modified guilty plea to third-degree attempted rape for allegedly forcing his children's nanny to perform a sex act on him, and Eddie Griffin was suspended three games in 2004 after pleading guilty to a misdemeanor assault charge in Texas.

Hunter's view of the union's role in defending the rights of players disciplined (or to be disciplined in the future) by the commissioner for off-field behavior is radically different from Gene Upshaw's view. A few months ago, I raised a number of questions that should be considered by all NFL players regarding disciplinary action taken by the commissioner under the NFL's new personal conduct policy, which was implemented by the new commissioner after consultation with a small committee of six players and affords the commissioner unfettered discretion in disciplining players without any review by an arbitrator. However, the NBA commissioner's disciplinary action is reviewable by an arbitrator mutually selected by the union and the league (as is the case with MLB and NHL commissioner disciplinary action). The effect of subjecting the commissioner's disciplinary action to outside review by an impartial arbitrator should not be underestimated because it impacts the commissioner's initial decision to take disciplinary action as well as the level of suspension he imposes. An arbitrator reviews the commissioner's action under a just cause standard, ensuring that the imposed discipline is not arbitrary, unduly harsh or contrary to established precedent.

The NBPA is obviously concerned about due process as well as the financial impact that league suspensions without pay will have on its players. The NFLPA, however, seems to take the view that stricter league disciplinary action is warranted in order to "clean up the league". The NBPA views the league in an adversarial position and feels that the commissioner's disciplinary action should be scrutinized, even when it involves suspension of a player for a small fraction of the season. Conversely, the NFLPA views the commissioner more as a partner in a "get tough on crime" policy and puts a great deal of trust in the hands of the commissioner to do whatever he thinks is necessary, even if it means suspending a player for half a season or a full season. So here's my legal question for the week: What is the proper role of a labor union certified under the National Labor Relations Act in representing the best interests of its members accused of off-field misconduct and disciplined by the commissioner?

Posted By : Rick Karcher

Amir Johnson and NBA Players who Skipped College

Message posted on : 2007-07-14 - 16:07:00

John Infante, a law review student at Indiana University School of Law, e-mails me a great point about Amir Johnson, the last high school player selected in an NBA draft (Johnson was drafted by the Detroit Pistons in the second round, 56th overall, of the 2005 NBA Draft; the NBA and NBPA then collectively-bargained that, beginning with the 2006 NBA Draft, players must be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season has passed from when they graduated from high school, or when they would have graduated from high school, and the NBA draft.):
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.

John
--
John Infante
Indiana University School of Law
Indiana Law Journal
Indiana University Division of Recreational Sports
Excellent analysis by John, who has much more on his blog, Taco John. In addition, and as I empirically examine in my law review article on high school players and the NBA Draft and other work, high school players in the NBA average more points, rebounds, and assists than the average NBA player or the average player of any age group within the NBA. Those numbers not only reflect the play of superstars like Lebron James, Tracy McGrady, Kevin Garnett, Kobe Bryant, and Amare Stoudemire, but also very good (if not great) players like Al Jefferson, Jermaine O'Neal, Rashard Lewis, Al Harrington, Eddy Curry, Dwight Howard, Tyson Chandler, Monta Ellis, and Josh Smith, as well as productive role players like DeSagana Diop, DeShawn Stevenson, and Kendrick Perkins.

High school players who made themselves eligible for the draft were also far more likely to be drafted, and to be drafted in the first round, than college underclassmen or college seniors (my favorite response to that is "but they are a small sample size!" -- well that's the whole point. Only 36 made themselves eligible for the draft from 1995 to 2004--30 of whom were drafted--indicating that they only tended to do it when it made sense). They are also one of the least likely cohorts to get in trouble with the law.

It's also commonly assumed that high school players struggle in their first NBA season; unfortunately for the NBA, that's true of most rookies. Moreover, think about all of the college juniors and seniors who were drafted high but ended up playing poorly in the NBA. Rafael Araujo, Trajan Langdon, Ed O'Bannon, Mateen Cleaves, Kirk Haston, Brandon Armstrong, Marcus Fizer, Dahntay Jones, Marcus Haislip, Reece Gaines, Mike Sweetney, Luke Jackson -- this list could go on and on and on. These players were twenty-one- or twenty-two-years-old when they entered the NBA. They had played three or four years of college basketball where they had excelled. They had attracted the keen interest of NBA scouts. And yet they proceeded to flop or disappoint in the NBA. Would an arbitrary age floor of nineteen- or twenty-years-old have stopped any of them from being drafted? Nope. Too bad the NBA couldn't create a rule that protects teams from drafting these guys.

Also highlighting John's remarks above, high school seniors who declared for the draft positioned themselves for free agency at earlier ages in their NBA careers (look at what it did for 27-year-old Rashard Lewis and his recently signed 6-year, $126 million contract with the Orlando Magic, which followed a 7-year, $60 million contract that he signed at age 23 with the Seattle Supersonics (he opted out of its last two years), and for Kevin Garnett, who, when all is said and done, may end up earning over $300 million as an NBA player). No, money isn't everything, but it seems to matter a lot in this country, and I suspect it would matter a lot to us if we were potential NBA players, especially when we would always be one basketball injury away from pursuing the kinds of jobs we actually have.

Of course, the bigger point isn't that players should skip college, it's that they should have that option, just like the one enjoyed by baseball players, hockey players, tennis players, boxers, actors (see this week's People Magazine cover story), musicians . . . the list goes on, except it doesn't include, for one reason or another, basketball and football players. And that brings to mind a legal question: should veteran players, who seemingly have a stake in preserving jobs for themselves and other veterans, be able to collectively-bargain away the employment rights of players not yet in the league and who have no seat at the bargaining table? I know veterans have that capacity, but should they? Why or why not?

Posted By : Michael McCann

Update on the AP's Efforts to Obtain Redacted Names in Search Warrant Affidavit

Message posted on : 2007-07-12 - 20:10:00

Three weeks ago, I discussed the filing of a federal court petition by the Associated Press to make public the names of MLB players who were blacked out by federal prosecutors in an affidavit signed by a government agent in connection with a search warrant obtained on Jason Grimsley's home. The affidavit with the names redacted was made available to the public but not the unredacted version. The latest press release reveals that prosecutors did not provide the names of the blacked out players to MLB steroids investigator George Mitchell afterall. This week, the U.S. Attorney's Office in San Francisco responded to the applications filed in federal court by the AP and Hearst Corp., saying that both motions were a "thinly veiled attempt to benefit financially" by publicizing the names of people involved in the government's steroid probe and does not serve a public need.

The MLBPA also filed papers stating: "Disclosure of players' names would irreversibly link them with criminal conduct, even if that link were contrary to other known facts. The AP's publication of redacted names will result in the indictment and conviction of these individuals in the court of public opinion."

No doubt about it....

Posted By : Rick Karcher

Vanderbilt Chancellor to Ohio State

Message posted on : 2007-07-12 - 12:37:00

Gordon Gee, presently Chancellor at Vanderbilt University, is leaving to become President of The Ohio State University.

This is worth mentioning in this forum because Gee became famous and infamous in 2003 for eliminating Vanderbilt's athletic department and placing intercollegiate athletics under the control of the office of student life. Gee's stated purpose was to "declar[] war on a culture that has isolated athletics from what the college experience is supposed to be about." Good discussions here and here; the latter argues that the move has worked and Vanderbilt's teams recently have enjoyed on-field success, including NCAA appearances in men's and women's basketball, an outstanding baseball team, and a national championship in women's bowling.

Might Gee try to do the same thing at Ohio State? This is much more powerful school in intercollegiate athletics than Vanderbilt with a stronger, more deeply ingrained history and booster base. But it also is one that has seen its fair share of recent athletics-related scandals. Stay tuned.

Posted By : Howard Wasserman

Fan Consent and the Constitution at the Ballpark

Message posted on : 2007-07-11 - 10:38:00

My arguments about fans' speech rights depend on the principle that fans do not, to paraphrase the Court, "shed their constitutional rights" at the stadium entrance. Thus, I have argued in prior posts and comments, it should not matter that teams prints warnings about fan behavior, including speech, on tickets or that fans know in advance that, by voluntarily entering the ballpark, they subject themselves to limits on their speech. Stadium operators cannot condition access to the ballpark on a waiver of constitutional rights.

Well, in Johnston v. Tampa Sports Auth., the United States Court of Appeals for the Eleventh Circuit disagreed with me. (H/T: Howard Bashman's How Appealing; Howard's column argues why the court got it wrong). The court rejected a Fourth Amendment challenge to pat-down searches conducted on all fans entering Tampa's Raymond James Stadium. The court held that the plaintiff, a season-ticket holder, consented to the search by going to the game despite advance notice that he would be subject to a search (the Bucs informed all season-ticket holders of the search policy) and by submitting to the search and entering the stadium, although he did voice an objection to the search.

In lengthy footnote five, the court expressed doubts about whether there could be a constitutional violation, even absent consent. The ticket gave the plaintiff a revocable license to enter the stadium, a personal privilege that could be taken away or burdened by the property owner at any time and for any reason. The court distinguished its 2004 decision in Bourgeois v. Peters, which held that a municipal policy of conducting magnetometer searches on all participants in protest rallies on public streets violated both the First and Fourth Amendments. The Bourgeois court had stated the following:

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 Johnston court distinguished Bouregois in footnote five as follows:

The search reviewed by the court in Bourgeois impeded individuals from gathering on a public property–city land outside of the Fort Benning installation–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.


This distinction ignores that the stadium grandstand is a so-called designated public forum, opened by the government (the Stadium Authority owns and operates Raymond James Stadium and controls security) for cheering speech. The rules of access to a traditional public forum, such as public sidewalks, and to a designated public forum, such as the grandstand, are the same; government cannot unconstitutionally condition access to either. Nor should it matter that Johnston needed a ticket to get into the stadium. Government often requires people and groups to obtain permits--i.e., tickets--to speak or hold rallies on public streets and sidewalks. Such permitting programs generally are valid, so long as they are neutral, not overly discretionary, and under Bourgeois, do not require the waiver of constitutional rights as a condition of obtaining or using the permit. The identical rules should control the "permitting scheme" of selling tickets to sporting events--neutral (because based on first-come, first-served) and no conditioning obtaining or using on a waiver of constitutional rights.

Of course, this case involved a fan's challenge to the search as a condition of entry, rather than a fan's challenge to removal because of his expression. But the court's general approach--consent and waiver--would, unfortunately, appear to apply regardless of the constitutional right in play.

Posted By : Howard Wasserman

Jason Chung Interview

Message posted on : 2007-07-10 - 22:50:00

Quick programming note: Jason Chung, who authored the well-discussed and outstanding article on the extent to which ESPN has harmed the NHL by either ignoring or belittling it, will be interviewed on The FAN 590 (Toronto) tomorrow at 11:20 a.m. to discuss his article. To listen to the interview, click this link and then click on the "Listen Live" feature. Great work Jason, whose article has been discussed on Deadspin and many other blogs and websites.
Posted By : Michael McCann

The All American Football League and Its College Degree Eligibility Rule

Message posted on : 2007-07-10 - 17:11:00

I've received e-mails from several readers about the All American Football League, a professional football league that will begin operations in the spring of 2008, feature between six to eight teams in the southeast, and pay players around $70,000 to $75,000 a season.

The AAFL, as it is called, was scheduled to begin operations this year, but was pushed back till next year. Wisely, the league does not intend to compete with the NFL, as AAFL games will be played in the spring, during the NFL's off season. Along those lines, the AAFL seeks to provide consumers with an otherwise unavailable product--outdoor professional football in the spring. The league also aspires to develop players to the point where they can seek employment in the NFL, particularly now that NFL has shut down its own developmental league, NFL Europa. The AAFL will also try to capitalize on local rivalries, with players assigned to teams based on where they played in college--so a player who starred at the University of Southern Mississippi, for instance, would be assigned to the Mississippi franchise. The NBA used to employ a similar system of player allocation before it turned the NBA draft.

The AAFL features an impressive Board of Directors (including our friend Gary Roberts, the new dean of Indiana University School of Law in Indianapolis), but undoubtedly faces a difficult task. There have been many attempted professional football leagues over the last three decades, and for every Arena Football League, there seem to be quite a few failed ventures, including the United States Football League, the XFL, the Regional Football League, and the likely many others that never advanced past the planning stages. In addition, the AAFL isn't the only pro football league in-the-works: the United Football League, which hopes to begin play next summer in major cities that do not have NFL teams (including Los Angeles and Mexico City) and which enjoys the funding of Mark Cuban and Google executive Tim Armstrong, among other very wealthy folks, may emerge as a rival (for great discussions of the UFL, see posts by CNBC's Darren Rovell and Sports Economist's Skip Sauer, and for thought-provoking speculation that the UFL might attract players not old enough to meet the NFL's age requirement, see this post by AOL Fanhouse's Michael David Smith).

Whether or not the AAFL succeeds as a business venture, it features one noteworthy eligibility rule: players must possess a college degree. This rule, which does not reflect collective-bargaining (since there doesn't seem to be an AAFL players' association) but instead a unilateral league imposition, is ostensibly designed to encourage college football players to stay in school and focus on their studies. A cynic, however, might characterize it as a thinly-veiled attempt to appease the NCAA and colleges, which do not want to lose the players who generate so much revenue for them, and one that seems noticeably reflective of the backgrounds of AAFL's Board of Directors, which includes former NCAA president Cedric Dempsey as well as former conference commissioners, athletic directors, and head football coaches. Obviously, the rule also limits the number of available players, especially since many of the nation's best teams have poor graduation rates.

The college degree rule provides a topic for possible legal inquiry, at least in an academic sense. Back in the 80s, the USFL tried to impose the same eligibility requirement on players who sought to enter its draft, but in Boris v. USFL, 1984 Trade Cas. (CCH) P 66,012, (D. Cal. 1984), a federal district court held that the USFL and its teams, by unilaterally imposing such a rule, were engaging in a group boycott, thereby committing a per se violation of Section 1 of the Sherman Act. As I wrote in my law review article, "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft":
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.

In response, however, the AAFL might argue that its rule does not impact its draft eligibility, but rather eligibility to sign an employment contract (not sure that would be a sufficiently meaningful distinction). The AAFL might also argue that, unlike the USFL, it is not steering players away from the NFL, since it is expressly not competing with the NFL. Again, I am not predicting a lawsuit, I just find eligibility requirements interesting.

Posted By : Michael McCann

Jeff Bailey and The Good Health of Making it to The Show

Message posted on : 2007-07-06 - 16:06:00

Earlier today, the Boston Red Sox purchased the contract of first baseman Jeff Bailey, a 28-year-old who, until now, had been a career minor leaguer. He began his professional baseball career in 1997, after being selected in the second round of the 1997 baseball draft by the Florida Marlins. He's bounced around since then, producing relatively modest statistics until last season, when he hit 22 home runs and drove in 75 RBIs for the Triple A Pawtucket Red Sox.

Bailey will start at first base tonight when the Red Sox take on the Detroit Tigers. I know what you might be thinking: "Why am I reading about this seemingly obscure player, who is involved in a seemingly uninteresting chain of events?"

Here's why: by virtue of being on a big league roster for a mere one day, Bailey will enjoy complete medical benefits for the rest of his life, pursuant to Major League Baseball's collective bargaining agreement. Call it the Moonlight Graham provision, if you will. Even better, if Bailey can stay on the active roster for 43 days, he'll also get a pension. Bailey can thank Marvin Miller and Donald Fehr for fighting for guys like him--the 25th man on the roster, "cup of coffee" types--as opposed to simply focusing on the interests of the game's stars or established players.

So aside from the thrill of making it to "The Show" and earning a big league pay check, veteran minor leaguers like Jeff Bailey have a pretty strong incentive to keep playing if they believe they have a chance at cracking a big league roster. A lifetime of guaranteed health care is quite a pay off indeed.

Posted By : Michael McCann

Bowers v. Federation Internationale de l'Automobile

Message posted on : 2007-07-06 - 13:34:00

Earlier this week, we examined whether people who bought tickets to the Buick Open expecting to see Tiger Woods play should be able to get their money back since Woods did not play, due to the birth of his daughter.

The post, which was based on a piece by Darren Rovell on CNBC's Sports Biz, generated several excellent reader comments, including those by gorjus, Joshua, and Jimmy H. The general belief is that no, those ticket buyers should not be able to recover since they bought tickets to the Buick Open, rather than to an individual session of Tiger Woods; the tournament features over 100 golfers, not 1. On the other hand, Woods was prominently promoted by those marketing the tournament, and he certainly was the big draw.

Tulane law prof Gabe Feldman, who has guest blogged here, e-mails me about Bowers v. Federation Internationale de l'Automobile, a case that just came down in the Seventh Circuit concerning an unsuccessful attempt by fans who bought tickets to the 2005 US Grand Prix to get their money back since only 6 of the 20 scheduled drivers actually competed:

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 Circuit—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:

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 “view whatever event transpire[s].� 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. “Indygate's� 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.

Thanks again to Gabe. To read a PDF file of the case, click here.

Posted By : Michael McCann

ABA Seminar on Immigration for Sports Attorneys

Message posted on : 2007-07-06 - 10:14:00

We've previously discussed the underappreciated importance of immigration law as part of the "sports law" practice (see here, here, and here).

Practicing attorneys with a Continuing Legal Education obligation may be interested in an ABA sponsored CLE on August 2, Immigration Law 101: For the Entertainment, Sports and Arts Lawyer, which will take place via teleconference / streaming audio. The seminar is being led by immigration lawyers from NY firm Siskind, Susser & Bland; you can read more about their sports practice and get access to some interesting information on sports and entertainment visas at the firm's web site.

Posted By : Geoffrey Rapp

New Sports Law Scholarship

Message posted on : 2007-07-06 - 10:06:00

Recently published scholarship:
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)

Posted By : Geoffrey Rapp

Closing Arguments in Allen Iverson's Trial

Message posted on : 2007-07-05 - 10:38:00

Closing arguments will occur later today in a lawsuit against Denver Nuggets star Allen Iverson regarding whether he was negligent for members of his security team allegedly injuring two men in a fight that occurred in 2005 at the Eyebar Lounge, a trendy nightclub, pictured below to the right, that is located in Northwest D.C. (and is somewhat near Iverson's alma mater, Georgetown University).

The fight originates from when the two plaintiffs, Marlin Godfrey and David Anthony Kittrell, both 37-year-old Maryland residents, were sitting in VIP seats reserved for Iverson and other persons. Iverson's security detail asked Godfrey and Kittrell to move and they refused, which led to an argument, and then shoving and more ensued. The plaintiffs claim they suffered various injuries at the hands of Iverson's security guards, including emotional distress and a torn rotator cuff.

Now they are suing Iverson for $20 million, alleging that he was negligent in how he instructed his security detail to behave. Iverson has testified that he was not anywhere near the fight; he was in another part of the bar at the time. The case is being tried before U.S. District Judge Ellen S. Huvelle of the U.S. District Court for the District of Columbia. The plaintiffs have tried several quixotic arguments against Iverson, including an attempt to compel rap star 50 Cent to testify as a character witness against him (Judge Huvelle rejected the attempt for, among many other reasons, the lack of jurisdiction over 50 Cent since he lived over 100 miles away).

I can't speak to the merits of the plaintiffs' claims, but assuming they are not meritorious and instead reflect an attempt to go after a deep pocket--better known as a "money grab"--I applaud Iverson and his attorneys, Alan Milstein and Billy Martin, for not settling. I'm sure it was very tempting to settle this case and simply pay off the plaintiffs to go away--especially considering how much time and energy a case like this requires from Iverson. But they choose to fight instead.

And this is pure speculation on my part, but I suspect that Iverson's resolve relates to frustration over being a victim of perception. By that I mean he's often criticized for the tattoos, rap music, and other lifestyle interests that don't appeal to a lot of Americans, some of whom seem to crave associating him with the "gangsta/thug" lifestyle whenever possible. As a result, whenever Iverson is near a potential civil claim, an opportunistic plaintiff likely sees an appealing target: a "bad guy" who is really rich.

Along those lines, maybe if we heard more about the less noted, more admirable sides of Iverson--a father of two who married his high school sweetheart, a celebrity who has clearly not forgotten about all the folks who helped him earlier in life, and a true warrior on the court--he would be viewed more as a "good guy" and thus be less of any easy target. That's not to say he's never messed up in life, as he clearly has at times (as have we all), but I can see why he would be easy prey for those among us who like to bring lawsuits, and I wonder to what extent public perception has fueled that.

Posted By : Michael McCann

Fear of Free Speech: Barry Bonds Edition

Message posted on : 2007-07-03 - 21:12:00

Major League Baseball has asked teams to "carefully screen" signs that fans display relating to Barry Bonds' pursuit of the career home-run record. According to reports here and here, although MLB has not issued league-wide rules, it has brought the issue to teams' attention in several conference calls and is leaving the matter to each team. Most teams rely on a rule that banners be in "good taste" or "not in bad taste," whatever that could possibly mean. This obviously is less of an issue in San Francisco, where fans are uniformly supportive, than on the road cities that the Giants visit.

Some examples of what has been allowed:

* Signs with asterisks (a silent reference to the idea that Bonds' record should be accompanied by an asterisk in the MLB Record Books because of his steroid use, much as it was believed Roger Maris' single-season record was accompanied by an asterisk because it was done in a longer season). A host of these were on display in Cincinnati Tuesday evening, where the Giants are playing and where Bonds hit No. 751.
* "Break records, not rules" (with a baseball sporting a black eye)
* "Hey Barry! It's Not a Record. You Cheat"
* "Call Hank Aaron and Say You're Sorry."
* "756* Was it Worth it for An *?"
* The MLB logo with a player swinging a syringe. This is from a group called BoycottBarry.com, which also is marketing blindfolds for fans to wear to "shield your eyes from the disgrace."

Some examples of what has not been allowed:

*"Though shalt not covet impure gains"
*"Stop inflating records," with a syringe injecting and pumping up the letters
* A sign calling for Bonds to get 756 days in jail
* "Milwaukee Loves Hammerin' Hank, Not BALCO Barry."
* BoycottBarry t-shirts, signs, and blindfolds were disallowed at Dodger Stadium last year.

The title of this post captures my thoughts upon reading the following from Camille Johnson, the Dodgers' senior vice president for communications. Johnson said the team wants to create a

"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 think MLB and most of its teams think along similar lines. Simply put, all are afraid of people speaking their minds on the subject of steroids, Barry Bonds, and the home-run record. And we can broaden that statement to say all are afraid of people speaking their minds of anything that is critical of baseball, its players, and its teams.

Look at all of these examples again. Are any of those messages in "poor taste"? That is, are any in poor taste if we define poor taste as meaning anything beyond "critical of Barry Bonds" or "calling attention to something MLB and Bonds would like to keep out of the public discussion"? And what is an "untenable atmosphere"? Is it really untenable if ideas and opinions are expressed, people are criticized, and wrongdoing (OK, suspected wrongdoing) is brought to the fore? Is there anything in any of the messages above that could be read as "inciting" anyone to do anything other than agree that Barry Bonds cheated and should not be lauded for his upcoming achievement? How is wearing a blindfold when Bonds comes to the plate "incitement"?

And how do any of these signs interfere with a "fan-friendly environment," unless criticism of players or management (absent profanity, just because I have to take that out of the mix) should not be seen by women and children. Or is an environment "fan-friendly" only if happy and cheerful things can be said?

Sport is becoming a good prism through which to view the state of the freedom of speech. And it is not in a good state.

At the individual level, people seem more likely to speak out (i.e., to exercise the liberty to speak) about their sports rooting interests or about Barry Bonds cheating than they are to speak out about their rooting interests in the 2008 presidential election or about President Bush commuting the sentence of [ED: corrected in response to a Commenter] Scooter Libby. Fans feel sport more in their daily lives. Many are more passionate about it. Sport is more local. It remains a vital social institution, worthy of discussion. And by going to the ballpark to watch it all happen, individuals have a forum in which to express their views about the game and about sport. A person is more likely to get her message about Barry Bonds heard than her message about George Bush.

On the other hand, MLB and its teams demonstrate the same fear and loathing of "uninhibited, robust, and wide-open" debate that governments and elected officials do. But MLB teams are able (for the moment) to make and enforce rules about "family friendliness" and "good taste" that government, bound by that pesky First Amendment, would get slapped down in court for making.

I keep waiting for someone to take the leap and sue a team that plays in a public stadium and enforces these absurd anti-speech rules. Assuming that state-action hurdle is cleared (a big assumption, I know, but the arguments are there to be made), no court in the United States could find any of these messages unprotected by the First Amendment. And even if some teams are not state actors (the Dodgers own Dodger Stadium and Pac Bell Park, site of next week's All-Star Game, is privately funded), I wish they would just recognize that free speech and the expression of dissent is not a bad thing. And certainly nothing to be feared through "careful screening" of what people want to say.

Unless, perhaps, MLB is feeling a tad embarrassed that a purported steroid user is about to break its most hallowed record. Maybe if fans cannot talk about it, it will go away.

Posted By : Howard Wasserman

Where's Tiger? Advertised Woods a No-Show at Buick Open

Message posted on : 2007-07-03 - 14:27:00

To the disappointment of many, last week's Buick Open--a PGA Tour golf tournament held annually at the Warwick Hills Golf and Country Club in Grand Blanc Michigan--struggled to draw fans and failed to generate much business for local companies. Sally York of Michigan Live writes, "Empty bleacher seats, lots of parking and flat sales at local businesses have people wondering why the turnout at this year's Buick Open was lower than usual, despite nearly perfect weather."

Some blame the sluggish local economy, others attribute the struggles to an unusually large number of people on vacation this year.

But there is another reason that may be more explanatory: neither Tiger Woods nor Vijay Singh, the world's first-rated and sixth-rated golfers, respectively, played. Woods's wife, Elin Nordegren, gave birth to their first child two weeks ago, while Singh's elbow is injured. So the big draws weren't there, and that seems like a very plausible reason for fewer folks showing up.

But say you bought a ticket to the Open (which are non-refundable and which range in price from $15 to $35 a day) because you wanted to see the world's greatest golfer play golf? After-all, you may have decided to buy the ticket after seeing one of the Open's ads--the one that prominently featured Tiger Woods. Over on CNBC's Sports Biz, Darren Rovell asks:
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 “Not guaranteed to appear� 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.

For a number of reasons, however, I suspect that a court wouldn't be too receptive to compelling the Buick Open to refund those fans because Woods had to bail out. For one, many, if not most, fans were on notice that Woods was an expecting father. In fact, on May 21, he said that while he intended to play in the Open, the expected birth of his child was (obviously) his top priority, and that he would adjust his playing schedule to fit the needs of his family.

For another, those who bought tickets to the tournament, which featured over 100 golfers, bought tickets to the tournament; the tickets weren't to see Tiger Woods play golf, even if the tournament's organizers clearly knew, by virtue of their ad, that Woods was the tournament's most marketable player. As an analogy, one who buys a ticket to a Washington Wizards game to see Gilbert Arenas play cannot demand a refund if Arenas doesn't play in the game; the ticket was to the Wizards game.

Then again, say someone buys a ticket to see a popular band play, and its lead singer can't sing? Because the lead singer is essential to the event, often the concert is canceled and tickets are refunded, as opposed to proceeding with the concert and finding some other guy to sing the songs. But for a number of reasons, the concert example seems different than the tournament's best golfer not playing. What do you think?

Posted By : Michael McCann

Where Does Wrestler Benoit's Doctor's Liability End?

Message posted on : 2007-07-03 - 09:54:00


It's been a bad couple of days for the medical profession. Turns out even doctors aren't immune to the terrorist bug. And the sad story of Chris Benoit, the steroid-pumping wrestler who murdered his wife and child before hanging himself on a weight machine, has now swept in Benoit's former physician, Dr. Phil Astin.

A few days back, feds raided Astin's office. Now, Astin has been indicted for drug distribution. Findlaw has a copy of the complaint, including seven counts of Controlled Substances Act violations, here.

Dr. Astin has had some trouble before, relating to loss of privileges, lying, and domestic violence. But the latest federal charges may have the most bite. As indicated in a DEA Agent's affidavit now available thanks to the Smoking Gun, Dr. Astin prescribed Benoit a 10-month supply of steroids every three weeks. Either Benoit was prone to lose his drugs, or he was taking slightly more than the appropriate dose. There are certainly medically appropriate uses for anabolic steroids, such as treating the "wasting" that sometimes results from cancer or AIDS. But it will be quite a surprise if it turns out that someone with Benoit's physique suffered from such a condition.

Legally, Dr. Astin's criminal troubles may pale in comparison to his potential civil liability. The question is whether Dr. Astin may be on the hook for the death of Benoit's family or Benoit himself. By violating criminal statutes for drug distribution, Dr. Astin may have been negligent-per-se, or at least committed an unreasonable act which represented a depature from the standard of care. The hard part in a civil case would be demonstrating proximate cause. That is to say, would Benoit's intervening criminal actions (murder and suicide) supersede Astin's unreasonable and illegal distribution of steroirds? Are violent reactions from over-presecription sufficiently foreseeable to allow recovery from a doctor? Are the links between steroids and so-called "roid rage" sufficiently proven?

You can read some comments by supposed friends and patients of Dr. Astin here.

Posted By : Geoffrey Rapp

Is ESPN Killing the NHL?

Message posted on : 2007-07-02 - 13:42:00

Jason Chung has an excellent piece over on The Situationist that examines to what extent ESPN has harmed the NHL by either ignoring it or belittling it. Jason studies how fans' attitudes can be shaped by broadcasting choices, particularly at dramatic junctures, such as in the aftermath of the 2004-05 NHL lockout. Here is an excerpt from Jason's piece:

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 “some egregious brawl� or if it was being “dissed� 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.

Update: Eric McErlain over on Off Wing Opinion--the leading blog on hockey--has a terrific analysis of Jason's post.

Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2007-07-02 - 09:52:00

Recently published scholarship includes:
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 ‘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)

Posted By : Geoffrey Rapp

Is Boras Getting Too Big for His....Wallet?

Message posted on : 2007-07-01 - 11:07:00

Scott Boras wants to make the World Series a best-of-nine series and open with two games at a neutral site, arguing that the shift would create a marketing bonanza that would rival the Super Bowl (USA Today, Back to a best-of-nine World Series?). Boras sent a two-page letter to Bud Selig outlining his grandiose ideas on April 15 -- ironically, the day that Boras came to the realization just how much income tax he owes on commissions earned for the year.

Here is an excerpt from the AP report:
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!....


Posted By : Rick Karcher

Is Boras Getting Too Big for His....Wallet?

Message posted on : 2007-07-01 - 09:05:00


Posted By : Rick Karcher

Cheering speech through not cheering

Message posted on : 2007-06-30 - 11:51:00

Since silence and non-participation are a means of expression, there will be an interesting free-speech event in Pittsburgh tonight.

A group called Fans for Change has organized a fan walkout for tonight's game between the Pirates and Washington Nationals at Pittsburgh's PNC Park. The protest consists of a pregame rally and petition drive on Federal Street, outside the park, from 5-7, then a mass walkout at the end of the third inning (fans either will leave or stand in the concourse through the end of the fourth inning). Fans also are being encouraged to wear green t-shirts, symbolizing money. Details here and here; an interview with one of the organizers is here. (H/T: Pittsburgh Sports and Mini Ponies and, as always, Deadspin).

Oriole fans staged a a similar walkout in Baltimore last year. And Lions fans have been doing cartwheels for two years calling on the team to fire GM Matt Millen. Of course, the on-field performance of both teams suggests that this form of fan expression does not work very well.

The Pirates have responded to the walkout by ordering the Pittsburgh broadcast team on FSN Pittsburgh not to discuss or show the walkout and the network has agreed; both the FSN and Nationals telecasts will go to commercial at the end of the third. All references to the walkout have been removed from the team message boards. This raises some interesting issues about both networks' commitment to informing the public. If something plainly newsworthy, important, and related to the game occurs, what is their obligation to cover it, even if it is negative or critical of the home team (with which FSN has a contract)? Striking the balance between covering "their team" and some degree of objectivity is an ongoing tension for all local-broadcast outlets. But suppose the walkout is extremely successful (say 15,000 people out of a crowd of 22,000 walk out) and a foul ball is hit into a deserted section of the stands--will FSN show that?

And might the Pirates try to take even stronger steps to cut the protest off? For example, the team could try to break up the pre-game rally in the name of "keeping the street free and clear for foot traffic"? The Pirates and MLB talked seriously about different steps to control what pedestrians can do on Federal Street, for traffic reasons, during the 2005 All-Star Game. The Cleveland Indians got in First-Amendment trouble for breaking up an anti-Chief Wahoo protest rally on the sidewalks outside Jacobs Field in 2000.

Alternatively, the Pirates might try to keep fans in their seats or in the seating area during the targeted protest time between the third and fourth innings--the Yankees have showed how to do that. Just keep the fans in their seats during the period that they want to leave as part of their collective message; they can leave immediately after the short break between innings is over. But since they want to leave at a set time, the delay effectively blunts the intended message. Consider, by comparison, that the Oriole-fan walkout was deliberately staged at 5:08 p.m.--in honor of Brooks Robinson (No. 5) and Cal Ripken Jr. (No. 8). But if the team could delay the departure by one minute, that part of the message gets lost to some degree. I doubt the Pirates will try this, but it gets more interesting as I think about it.

I may have more to say on this after the events play out.

Update:

The Parrot
has further information on how the media is going to play it. The other local broadcast outlets ( are considering using helicopters or tower-mounted camera. But The Parrot points out that these outlets have to walk a fine line themselves. While they do not have the same type of close relationship with the team that FSN Pittsburgh has, there might be some fear of the Pirates retaliating against an outlet that covered the story that the team does not want shown. And that is unfortunate. Because whatever reason the team's own broadcaster might have to downplay the negative, these other outlets are operating as true journalism operations and unquestionably have an obligation to inform the public and to be critical of the team.

Posted By : Howard Wasserman

Thoughts on Last Night's NBA Draft

Message posted on : 2007-06-29 - 14:04:00

Like most NBA drafts, last night's made for great television (at least until things seemed to slow down dramatically with picks beginning in the 20s). There are excellent draft recaps today by Chad Ford, Bill Simmons, Marty Burns, and Charley Rosen. Jeff Clark and Henry Abbott also ran an excellent draft chat on ESPN, and its transcript is worth checking out.

To me, the most interesting development was the Milwaukee Bucks selecting Yi Jianlian at #6, even though Yi's agent, Dan Fegan, did everything he could prior to the draft to dissuade the Bucks from taking him. And that's because, according to the Associated Press, Yi "wanted to play in a city with a strong Asian influence . . . there are about 27.5 thousand people of Asian descent living in Milwaukee, population 605,000." Yi would have been selected by the Boston Celtics at #5 , but the team decided to trade the pick for Ray Allen. So will Yi demand a trade from the Bucks? According to Sun Qun, the editor of China's top basketball newspaper Pioneers, the answer is no and he managed to take a shot at American players in explaining why:
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.

Posted By : Michael McCann

David Ortiz's War on Umpires

Message posted on : 2007-06-26 - 12:14:00

Over on The Situationist--which was recently named Best Social Psychology Blog--Jon Hanson and I have a piece entitled "What's Eating David Ortiz?" that you may find interesting.

Our piece offers a psychological explanation for why Red Sox designated hitter David Ortiz--described by some as the greatest clutch hitter in Red Sox history--has become so acrimonious in his relationship with umpires this season, a season in which Ortiz has played well, but has lacked the flair for the dramatic that has signified his Red Sox career.

We contend that his frequent questioning of calls relates to a particular set motivated attributions that leads him to explain his less heroic performance in a way that doesn't compromise the hero disposition that he's been enjoying but still explains his cooling bat (even though, in truth, his cooling bat better reflects the statistical flukiness and fortuitous circumstances of his past clutch hitting).

We hope you check out our piece on Ortiz. You might also like our post, "The Magic of Jonathan Papelbon's Knuckle-Knock."

Posted By : Michael McCann

Congress to Investigate Pension and Disability Treatment of Retired NFL Players

Message posted on : 2007-06-25 - 19:54:00

Tomorrow at 1 p.m., the House Judiciary Subcommittee on Commercial and Administrative Law will conduct a hearing on the disability benefit application system offered to retired NFL players by the NFLPA. A number of ex-players have asserted that the NFLPA has ignored the needs of former players--the very players whose labor, arguably, built the league from which current players benefit. Former Dolphins tight end Jim Mandich, for instance, has called the NFLPA "greedy [jerks] that don't care of their own."

So how much do ex-players receive in their pension? According to Andrew Abramson in an excellent article in the Palm Beach Post, former players who retired before 1993 receive on average about $250 per month for every year they played in the NFL--meaning that a retired player with four years of NFL experience earns about $1,000 a month in his pension. Granted, the number varies depending on what age a player decided to take his pension, but even the higher-end monthly stipends are much lower than pensions for other major sports.

In another excellent article on this topic, CNN Money's Chris Isidore explores the disability portion of the retirement system. He notes that while 284 players received disability payments totaling $19 million last year, that only came to a modest average of $66,000 each--"hardly sufficient for some of the players facing severe and costly medical problems."

So how does a retired player seek disability benefits? Here's how:
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.

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.

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."

Among the alternative systems that will be discussed tomorrow is whether individual franchises should carry their own disability insurance for players. But that very idea was rejected in 1993, when the NFL bargained with players that in exchange for free agency, individual teams wouldn't be responsible for disability insurance. Other ideas to be examined will include setting aside an additional 1 percent of league revenue which, according to Isidore, would more than quadruple the amount that could be paid out to in injured and disabled former players, and a $5 per ticket surcharge, which would raise even more. The NFL and NFLPA--neither of which will have their leaders, Roger Goodell and Gene Upshaw, respectively, present at tomorrow's hearing--will likely argue that the system reflects the collective bargaining desires of the respective bargaining units and that it is not one that Congress should interfere with it.

The hearing, which will be webcast at this link, features the following witness list:
  • Dennis Curran - Senior Vice President and General Counsel, National Football League
  • Douglas W. Ell - Plan Counsel to the Bert Bell/Pete Rozelle NFL Players Retirement Plan (Groom Law Group)

It should be a fascinating hearing and I look forward to watching the webcast. For additional information, please contact Jonathan Godfrey, Communications Director of the Judiciary Committee.

Update: The written testimony of the speakers is available at this link (my thanks to the anonymous commentator who provided the link in the comments section).

Posted By : Michael McCann

Stop Snitchin'

Message posted on : 2007-06-25 - 11:06:00

“I'm major leagues, who's catching because I'm pitchin,' Jose Canseco just snitchin' because he's finished.� - Rick Ross “Everyday I'm Hustlin'�

Jason Giambi and George Mitchell's agreement that Giambi will testify so long as he does not have to rat out his compatriots begs the question, when is it okay to report or not to report illegal or anti-social activities to interested authorities? Social norms within and beyond sports are in conflict here. Individual freedom, privacy, and loyalty suggest that one has no duty to tell, and perhaps has low moral character for telling. Protecting others, the rule of law, openness and honesty, suggest that one should or must cooperate with those authority figures charged with rooting out and punishing untoward, illicit or illegal behavior.

Ray Lewis was charged with murder because he wouldn't drop a dime (quarter? phone card? text message?) on his buddy who killed someone in a scuffle. Initially, he was disparaged by the media for obstructing justice. But he was soon forgiven.

Carmelo Anthony was chastised for appearing in a low-budget video shot in his hometown of Baltimore entitled, Stop Snitchin'. Like young Vito Andolini in Godfather II, you mind your business in the ghetto. The Stop Snitchin video was marketed towards hiphoppers who buy underground mixtapes and videos on street corners in innercities. You will not find it in Borders. It was not marketed to children or even most adults, only to those who already believe in the “code� in the first place. Carmelo was disparaged, but ultimately forgiven.

Now Giambi refuses to sing. I predict Jason Giambi will be treated the same way. He'll be disparaged and quickly forgiven. We feel we must do something to honor the rule of law and openness and honesty. But not too much, because it seems obvious that fraternal loyalty is the greater principle. Consider that, years ago, Jose Canseco told us all about how prevalent steroids were in the game. He snitched, loudly and proudly. And he will never be forgiven.

Posted By : Andre L. Smith

West Virginia University College of Law Symposium on Race and Labor in 21st Century Sports Law

Message posted on : 2007-06-24 - 15:10:00

On October 4th and 5th, the West Virginia University College of Law will host a symposium entitled "Reversing Field: Examining Issues of Commercialization, Race and Labor in 21st Century Sports Law.� I am honored to be speaking at this event, which is spearheaded by Sports Law Blog contributor and WVU law professor andre` douglas pond cummings and also includes blog contributors Joe Rosen and Andre Smith.

The symposium's sponsors--the WVU Law Sports and Entertainment Law Society, the Office of the President of WVU, and the WVU School of Physical Education--have assembled a terrific group of academics and practitioners to debate key issues related to the intersection of race and labor law in sports: commercialization of intercollegiate athletics, race issues in collegiate and professional sports, drug testing, gender equity, and economic weapons.

Speakers include:
  • Timothy Davis, member U.S. Anti-Doping Agency, Law Professor, Wake Forest University
  • Bobby Douglas, Former Olympic Wrestler, Wrestling Coach, Iowa State
  • Suzan Shown Harjo, advocate for Native American Rights, plaintiff in Mascot Debate case
  • Floyd Keith, Executive Director, Black Coaches Association
  • Gene Orza, Chief Operating Officer, MLB Players Association
  • Joe Rosen, Sports Agent, Orpheus Sports and Entertainment
  • Kenneth Shropshire, Law Professor, University of Pennsylvania, President, Sports Lawyers Association
  • Andre Smith, Law Professor, Florida International University

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.

Posted By : Michael McCann

Judges as Umpires, Redux

Message posted on : 2007-06-24 - 12:57:00

On Slate, Walter Dellinger (former Acting Solicitor General, con law professor, and appellate lawyer) offers his "Five-Minute Crash Course in Constitutional Law" for non-lawyers.

He gives the best rebuttal I yet have seen to the "judges should be umpires" tripe:
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 game—instead of having a strike zone and a set number of balls, strikes, and outs—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.

Posted By : Howard Wasserman

Associated Press Says Public Has Right to Blacked Out Names in Search Warrant

Message posted on : 2007-06-22 - 21:13:00

This post essentially continues the debate within the comments to Michael's excellent post yesterday regarding the disclosure of the Diamondbacks scouting report. I had to beat Howard to it.

This week, the Associated Press asked a federal judge to make public the names of baseball players a government agent said were implicated in drug use by former major league pitcher Jason Grimsley. When the affidavit signed by the government agent to obtain a search warrant on Grimsley's home was made public in June 2006, the names of the players the agent said Grimsley accused of using performance-enhancing drugs were blacked out. The AP now says it has a right to the blacked out names.

According to the AP, "Any privacy interests of individuals named in the affidavit are insufficient to overcome the public's right to access." The AP also said that if prosecutors provided the complete affidavit to baseball steroids investigator George Mitchell, "then they should not be allowed to invoke the privacy interests of third parties as a shield to prevent disclosure to others."

So let's continue the debate. Does the public have a "right" to the names of players who were blacked out by federal prosecutors? After all, the very reason the prosecutors blacked out the names to begin with was to maintain the players' confidentiality and privacy interests. Thus, the privacy interests of the players whose names were blacked out should definitely be taken into consideration. However, as Jimmy H. mentioned in the comments section to Michael's post, the public interest in steroids usage is definitely much greater than a scouting report found on a dugout floor. So the blacked out names of the players would most likely be considered "newsworthy". But there is an "entertainment" aspect working here as well. Let's face it, this would be a great sell for the AP if they could just get their hands on these names. The public loves to read about steroids in baseball. You can bet the AP wouldn't be in court this week if these players played professional football.

What I find most interesting though, is that the AP assumes it has a legal right of access to the names if prosecutors gave George Mitchell access. What law says that? So now the press can go to court and demand legal access to any information it wants whenever that information has previously been disclosed in confidence to a third party? That's a scary thought.....

Posted By : Rick Karcher

Kevin Garnett Says No to Boston Celtics: Selfish or Understandable?

Message posted on : 2007-06-22 - 14:32:00

Yesterday afternoon, I was annoyed to hear that Minnesota Timberwolves star Kevin Garnett does not want to be traded to the Boston Celtics. In fact, he told his agent, Andy Miller, that if traded to Boston, he would exercise an opt-out in his contract next summer to become an unrestricted free agent.

"What is this guy's problem? Why doesn't he like Boston? Why wouldn't he want to play for the NBA team with the most championships? What's good enough for Larry Bird and Bill Russell isn't good enough for a guy who has never played in, let alone won, the NBA finals?"

Those were my initial reactions, albeit as a diehard and perhaps embittered Celtics fan. Although I had mixed feelings about the rumored trade of Garnett to Boston in exchange for Al Jefferson, the #5 pick, Gerald Green, and Theo Ratliff's contract, the thought of Kevin Garnett playing along side Paul Pierce had me thinking playoffs, and a return to something better than mediocrity and way better than whatever adjective can describe the current Celtics.

But then I thought about it more objectively. Why shouldn't Garnett maximize his rights under his contract? In effect, he's using the threat of an opt-out clause as a de facto no trade clause, since no team will likely give up what's needed to convince the Timberwolves to deal him unless that team can be certain that Garnett would be more than a one-year rental.

And what's wrong with that? He and his agent likely negotiated the opt-clause in part for the very situation described above: getting traded to a lousy team that plays in a cold weather locale and that may very well have management and coaching changes within the next 12 months. That doesn't sound like a particularly appealing prospect for a 31-year-old who is probably now thinking about his legacy, which will undoubtedly be judged in part by whether he wins or at least competes for an NBA title--particularly when the Phoenix Suns are also said to be interested in him.

Let's take this a step further. For all the money Garnett earns--and it's a lot, $21 million a year--his job has a serious drawback that few us have to deal with in our jobs: his employer can trade him to some place where he doesn't want to go, and to work for an employer that he doesn't want to work for. So when Garnett tries to prevent a possible trade to the Boston Celtics, he's enjoying a benefit that most of us have in our jobs, and he only enjoys that benefit because he is really good at his job; most NBA players have no such contractual rights. James Joyner on Outside the Beltway has a piece on this subject today. Here is an excerpt:
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 country–or even to Canada–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 “home town discount� of millions of dollars when free agency (otherwise known as, “the right to work for whomever will hire you under whatever terms you can negotiate just like everyone else�) and “putting the needs of the team above personal goals.� 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?

Posted By : Michael McCann

Supreme Court decision in TSSAA v. Brentwood Academy (Updated)

Message posted on : 2007-06-22 - 00:36:00

The Supreme Court of the United States today decided Tennessee Secondary Sch. Athletic Association v. Brentwood Academy, involving a First Amendment and Due Process challenges to the enforcement of a high school athletic association's anti-recruiting rule against a private school. We previously have discussed this case here, here, and here. A copy of the opinion can be downloaded here (via SCOTUSblog).

As I predicted on these pages, the Court unanimously rejected Brentwood's constitutional arguments. Justice Stevens wrote the opinion for the Court, joined by all members of the Court except Justice Thomas, except as to Part II-A of the opinion, which was joined only by Justice Souter, Ginsburg, and Breyer (see below).

I have not had a chance to read the opinion carefully yet (will do so tonight and may talk more about it). On the First Amendment issue, Justice Stevens took two approaches. The one that commanded a majority relied primarily on the fact that Brentwood voluntarily joined TSSAA and thus voluntarily agreed to abide by the anti-recruiting rule. The Court relied on precedent controlling government-employee speech, which generally gives government greater control over what its voluntary employees can say. Such rules only must be "necessary to managing an efficient and effective state-sponsored high school athletic league." The Court said it needed no empirical data to "credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics."

As for the due process claim, the Court detailed the TSSAA proceedings and found that Brentwood received all the process it was due.

There are three interesting features of the decision, notable for what they tell us about the present and future of broader constitutional doctrine:

First, Justice Thomas concurred only in the judgment, declining to join any part of Justice Stevens' opinion. Thomas argued that the Court's 2001 holding in Brentwood I, which held that the TSSAA was a state actor, was wrong and should be overruled.

Second, as noted, Justice Stevens lost his majority for Part II-A of the opinion, which Justice Kennedy, the Chief, and Justices Scalia and Alito refused to join. In that part, Stevens relied on precedent upholding limits on coercive face-to-face solicitation by attorneys and other professionals, namely Ohralik v. Ohio State Bar Assn (1978), likening personal athletic recruitment to hard-sell lawyer solicitations and arguing that both should be subject to closer regulation. That Justice Kennedy and the other three declined to join that part of the opinion suggests that some members of the Court would like to expand protection for commercial speech.

The third relates to a back-and-forth in the comments to the post about the oral arguments. There was discussion of how the speech at issue fits in the heart of the First Amendment and whether the First Amendment protects the free flow of information about Brentwood's sports teams. At the start of Part II-A (for a plurality), Stevens says the following:
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.

In other words: If Brentwood put the identical information and statements in its broadly disseminated promotional materials, it could not be subject to regulation. The fact that Justice Kennedy, et al., did not join at least that idea is a bit surprising to me.

Additional Comments and Commentary: Moved to Top

Eugene Volokh has thoughts on the decision, particularly the divide among the justices as to the applicability of Ohralik to justify a total ban on pre-enrollment communication with students. Volokh suggests that if the risk of coercion is enough to support the TSSAA rule, then a broad swath of speech--not only one-to-one, but also appeals to the public at large--could be subject to regulation, because some risk of coercion is present in much communication. Volokh also questions why Ohralik should control since the coach here communicated with the students by letter, not face-to-face. The Court has distinguished direct-mail solicitations, including targeted solicitations by attorneys, from oral solicitations. Even assuming risk of coercion or undue influence, why is the letter from a coach not more like the mail solicitation from an attorney, rather than the oral, face-to-face solicitation from an attorney?

Justice Kennedy's objection to Stevens' reliance on Ohralik reflects an effort to tie the decision more firmly to the voluntary-association rationale and to make clear that the TSSAA could not impose the recruiting ban as a free-standing rule against all schools in the state, including non-TSSAA members. Kennedy argues that Ohralik undermines the understanding that, absent Brentwood's consensual and voluntary membership in the TSSAA, the speech by the head coach was entitled to First Amendment protection. This explains why Justice Kennedy did not sign on to Steven's distinction between face-to-face solicitation and broader general dissemination. For him, the only distinction driving the case was between regulation of voluntary members of an organization and general regulation of a segment of the general public. The attorney regulation cases potentially implies that this case could apply outside the membership/contractual context to a host of face-to-face contact; Kennedy (plus three, plus Thomas) rejected that expansion.

Note the unanimity among the eight justices (put Justice Thomas to the side for now) on an underlying point: The substance of the letter--information about Brentwood's football team and the eligibility (and benefit) of committed pre-enrolled students to participate in spring practice--was generally within the ambit of the First Amendment. What took the speech in this case out of that realm was the context: a) Targeted and potentially coercive and made by a member of a voluntary organization (Stevens and three), b) made by a member of a voluntary organization (Kennedy and three).

Further Update 6/23:

Another take on the case from Tony Mauro at the First Amendment Center.

Posted By : Howard Wasserman

Theft or Finders Keepers? AP Reporter Publishes Scouting Report Found on Dugout Floor

Message posted on : 2007-06-21 - 15:20:00

Last Thursday, the Arizona Diamondbacks played the New York Yankees at Yankee Stadium for the final game of a three-game series. The Yankees won the game by a score of 7-1, sweeping the series; the teams will not play again this season.

After the game, an Associated Press reporter was walking through the Diamondbacks' visiting dugout. He found a scouting report on the floor. The scouting report was authored by someone on the Diamondbacks' staff and discussed how to pitch to various Yankees:

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.

Should he have done so? Didn't the Diamondbacks have a reasonable expectation of privacy for their proprietary information? Or were the Diamondbacks merely irresponsible with their belongings, and thus did not enjoy any legal protection to the information?

There are different ways to examine the issue. My initial reaction was
surprise that the property of the Diamondbacks in their dugout would be considered "fair game" (for lack of a better expression) for a reporter to take and publish. This viewpoint was endorsed by the Diamondbacks when they formally complained to Major League Baseball about the "theft":
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.

Continuing along this pro-team/anti-reporter interpretation, while I recognize that reporters are rewarded for breaking stories, might baseball officials equate what the reporter did to going through someone's else thrash? Of course, the more precise analogy would be going through someone else's thrash on that person's property, as according to the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35 (1988), garbage placed at the curbside is public property--but you get my point. Similarly, when one walks through a department store, there is no expectation that a shirt located on the ground is thrash; if you pick up that shirt, you are still expected to buy it, and if you leave the store without doing so, you will have shoplifted.

Aside from the law, consider our expectations for those involved in this story: the Associated Press is a venerable and trusted news organization, and its reporters are presumably expected to ascribe to their organization's culture; it's not like a reporter from Star Magazine or--dare I say it--a blogger found the juicy info.

On the other hand, why should the Diamondbacks receive protection from their own carelessness? That was the reaction of Jimmy Golen, a buddy of mine who writes for the Associated Press and who also has a law degree from Yale Law School, when I asked him what he thought [note: Jimmy is not the AP reporter at question; he covers the Red Sox and Patriots, among other Boston teams]:
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"?
Those are some great points in favor of the Associated Press. To amplify one of his remarks, consider the significance of the game and series being over when the reporter found the scouting report; the Diamondbacks' occupancy and related possessory rights of the dugout presumably end at some point after the game ends. What do you think?

Posted By : Michael McCann

Two Views of Prosecutorial Misconduct

Message posted on : 2007-06-20 - 23:11:00

Two interesting and contrasting views on the disbarment of Durham County DA Mike Difong. Both pieces are by former New York public defenders: David Feige (now an author) and Brooks Holland (now assistant professor at Gonzaga University School of Law).

They take quite different views as to how common it is for prosecutors to withhold exculpatory evidence (deliberately or otherwise) and how uncommon it is for such prosecutors to be held accountable for abusive over-zealousness. Both are worth a look.

Posted By : Howard Wasserman

Will the NFL's New Whistleblower Program End the League's Concussion Headaches?

Message posted on : 2007-06-20 - 14:18:00

The NFL announced this week that it will implement a whistleblower program designed to deal with its ongoing concussion scandal. Under the proposed policy, the details of which still need to be worked out with the union, medical personnel pressured to clear players before those players are healthy enough to return to the gridiron, or players pressured to play, can file anonymous reports that should lead to league follow-up investigations.

Players have already expressed doubts about the likely effectiveness of this proposal. According to ESPN,
. . . a healthy dose of skepticism remains.

"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."
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.

Still, this seems like progress on the concussion issue. Moreover, it may represent an increased interest on the part of leagues in developing internal reporting systems to address persistent problems. Perhaps an anonymous steroid whistleblower line will be the next step?

Posted By : Geoffrey Rapp

Did Vince McMahon's Fake Death Violate Security Laws?

Message posted on : 2007-06-20 - 00:41:00

That is a question asked by Darren Rovell on Sports Biz today, and also one that he asked me in a TV interview that will air on CNBC later today at the following times: 7:50 a.m., 11:30 a.m., and 1:55 p.m., all Eastern Standard Time Zone. I hope you get a chance to watch. The interview will first air on CNBC's morning business show Squawk Box.

McMahon, as you know, is the chairman of World Wrestling Entertainment ("WWE"), and last Monday, WWE claimed that McMahon had been killed when his limo exploded. WWE.com announced that he was presumed dead since no body was recovered, and also claimed that the FBI was investigating, but it was later learned that the event was merely a promotional stunt, like many events that occur in pro wrestling.

WWE is a publicly-traded company, and while it's stock is only down 1.8 percent since the fake death, Rovell analyzes whether investors (as opposed to fans) of WWE may have been affected by the news, particularly since McMahon is listed in the company's most recent annual report as the most important person in the organization, and thus his death would seemingly be of great consequence. Then again, according to the WWE, not one investor has contacted the company to complain. Still, Rule 10b-5, pursuant to Section 10(b) of the Securities and Exchange Act of 1934, prohibits misleading statements or omissions of material fact in connection with the purchase or sale of any security, and that includes press releases that intentionally or, according to most courts, recklessly mislead investors. Both the SEC and private citizens can enforce the requirements of 10b-5. Establishing a claim against the WWE would be difficult, but it's an interesting idea to consider.

I hope you get the chance to watch the interview.

Update: Darren Rovell has put up a transcript of his interview of former SEC regional director Ira Lee Sorkin and me, and also news that Rovell is now considered a suspect for the murder "Mr. McMahon"!

Posted By : Michael McCann

Legal Issues of Unauthorized Kobe Bryant Video

Message posted on : 2007-06-19 - 17:35:00

Last week, a website named "The Official Kobe Video Website" appeared. It is offering the sale of an unflattering video of Kobe Bryant, purportedly taken in late May outside a shopping center in Newport Coast, California, in which Bryant has an impromptu conversation with a small group of fans. During his conversation, Bryant disparages his employer, as well as a number of his teammates. He saves his most vitriolic remarks for Andrew Bynum, the Lakers' highly touted 19-year-old center. Bryant insists that Lakers should "f---ing ship his ass out."

As reported by Howard Beck in today's New York Times, the men responsible for the video--a few guys in their early 20s who are unwilling to identify themselves--do not believe that Bryant was aware of the video being taken. Those same men contend that someone offered to buy it from them for $100,000 in order to keep it private, but they refused, and instead intend to make it available to anyone willing to spend $1.99 to watch it, provided they receive 50,000 orders. It's unclear how many orders they have thus far received. It's also unclear if the video is all that entertaining, since other than a consistent flow of swears and some unvarnished remarks about teammates, Bryant has offered similar, albeit less explicit, commentary on his blog. Still, as ESPN's Henry Abbott writes today, the video strikes many as a distasteful attempt at "gotcha" journalism.

Could Bryant successfully sue the Kobe video guys? "Miss Gossip" over at AOL FanHouse is a student at Stanford Law School, and she addresses that issue in a post today. Here is an excerpt:
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.

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?
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.

Posted By : Michael McCann

Alan Childress on Nifong's Disbarment

Message posted on : 2007-06-17 - 11:07:00

Alan Childress at the Legal Profession Blog offers his thoughts on the disbarment of Mike Nifong for his misconduct in the Duke lacrosse prosecutions.

Childress makes one very good point that I had not seen elsewhere and that I think I agree with: Even assuming Nifong deserved to be punished this harshly, disbarment after one hour of deliberation is, at least historically, a highly unusual and harsh punishment for even extreme cases of prosecutorial misconduct. And a possible explanation for that difference is the high-profile and politicized nature of the case. In other words, the very thing that allegedly caused Nifong to engage in misconduct arguably caused the Bar panel to punish him severely, unusually so.

Childress writes:

. . . 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.


This is a different point that is implicit in Andre's post. Rightly or wrongly and deserved or not, Nifong is, descriptively, being treated in an unusual fashion.

Posted By : Howard Wasserman

My Apology to Mike Nifong

Message posted on : 2007-06-16 - 10:53:00

I am not long on sympathy. I have little to no sympathy for OJ Simpson, Kobe Bryant or Pacman Jones, each of whom has suffered public and professional ($monetary$) reprobation despite not being convicted of the crimes for which they were accused. I do not quibble with those who, because of the media reports, believe wholeheartedly in their guilt.

I have a similar absence of sympathy for the Duke Lacrosse team and can't quite come to grips with ESPN having a half hour special two days ago about them. The same media outlets wiping their tears now were the ones reporting that they had a reputation for excessive on-campus rowdiness and belligerence and that they were having a party (parties?) generously laced with alcohol, minors, and strippers. (Was Pacman invited?) The same woman to be believed when she says she did not see the other girl attacked in any way, though she could not account for her whereabouts at all times because she was, um, working, also said they had a confrontation after the boys began yelling something about a broomstick.

Somehow others invite the bad that happens upon them. They are not excused for being in the wrong place at the wrong time. Personal responsibility is the slogan of our day. But the Duke Lacrosse team gets a pass. No one had to get raped at that party for Duke to legitimately suspend that team for the year. Precisely that type of animal-housing is supposed to be the bane of college athletics, and sports generally. Beyond their guilt or innocence, why the sympathy?


Which brings me to why I have sympathy for and am apologizing to Mike Nifong. The reason he is being publicly pummeled, and in my mind the reason why he was before the North Carolina ethics board, is because he did as civil rights organizations and feminist organizations have asked white men to do since I became interested in such politics: Disregard the low-mindedness of the media which promotes the idea that status and class and race have something to do with innocence and guilt, protect women from being raped and promote their coming forward by taking them seriously even when the only witnesses are them and the alleged broomstickers.

Maybe he did so for political reasons, to retain office in a majority black district. But such an accusation is not taken seriously when alleged by any other defendant. These defendants used their wherewithal to sell it. And if it be the case, the crime he is guilty of is overzealously protecting the district he lives in from alleged rapists. What other prosecutors are publicly or professionally skewered for this? Or does it not happen elsewhere?

So I want to apologize to Mike Nifong for the absence of support he has received from the same groups who used plenty of airtime to lambaste Don Imus and HipHop for disrespecting black women. Nifong is my white man of the week because he did what groups to which I belong asked him to do, and when the chips came down we did not have your back. We dropped the ball. So when will the next prosecutor take a case where it's his word against hers? Not soon, especially if the alleged rapists have money and connections and look good in a suit and haircut to deflect their poor reputation and all the alleged victim has is … what, 15 minutes of Oprah Winfrey's attention?

Posted By : Andre L. Smith

Eighth Circuit Hears Oral Argument in Fantasy Baseball Case

Message posted on : 2007-06-15 - 13:45:00

Yesterday, the U.S. Court of Appeals for the Eight Circuit heard oral arguments in a dispute over fantasy sports operators' right to use baseball players' names and statistics. The oral argument can be heard here (it takes a while to download).

For previous Sports Law Blog coverage of this case and related issues, see:
Judge Rules in Favor of Fantasy Baseball League

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?
HT to recent UT Law grad Justin Stone for passing along the link.

Posted By : Geoffrey Rapp

Yi Jianlian's Age, NBA Employment, and Immigration Law

Message posted on : 2007-06-14 - 15:37:00

In the upcoming NBA Draft, Yi Jianlian, a 7'0 forward from China, will likely be among the first six or seven players selected. The Boston Celtics, which pick 5th, are said to be highly interested in him, as are the Chicago Bulls. As detailed on Rookiepedia, Yi offers an intriguing mix of size, shooting ability, and sound fundamentals. He has been compared to Pau Gasol, Toni Kukoc, and even Kevin Garnett. With such acclaim for Yi, it is not surprising to read ESPN's Chad Ford comment that "a number of NBA general managers and scouts who have followed Yi closely have said he's the third-best prospect in the draft."

But notice that we have not mentioned Yi's age as an asset. It's because there is uncertainty as to how old he actually is. His passport states that he was born on October 27, 1987, meaning that he should be 19. And the NBA believes him. So too does ESPN. But DraftExpress and NBADraft.net list him as 22. The Houston Chronicle goes further, intimating that he may be 25. Even Chinese basketball fans are not immune from confusion. All told, Yi may be as young as 19 and as old as 25. How is that possible?

Here's how:
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.
As noted by Tom Ziller on AOL Fanhouse, the difference between being 19 and 25 is profound when projecting a player's upside and ability to ameliorate weaknesses. For instance, if Yi lacks strong rebounding skills at 19, teams can expect that he'll improve as he fills out and works with NBA coaches; if he lacks those skills at 25, he may never develop them, or at least not to the same extent. The age discrepancy likewise changes how we gauge his past success: dominating other the competition at 19 is a lot more impressive than doing so at 25. In short, Yi is a completely different NBA prospect if he's 19 than if he is 25, or perhaps even 22.

Determining Yi's actual age may prove to be a difficult task. Indeed, in China, the accuracy of birthdates has been called into question on numerous occasions. Such accusations are especially rife with regards to the Chinese basketball program. As recently as November 2006, Xinhua, China's national news agency, noted that birth certificates and ID cards could be forged to register for a U-18 competition and that some players even went as far as to adopt a new name. A senior Chinese Basketball Association official, Zhang Xiong, admitted that age fraud was a problem and that past youth squads had indeed included overage players.

The implications of Yi's uncertain age go beyond the basketball court. They affect whether Yi, a foreign national seeking to work in the United States on a temporary basis, can be employed by an NBA team. To work in the United States, Yi will likely pursue an "O-1 visa" which is a visa designed for a person of extraordinary ability in his field. At the very least, Yi is a lock to qualify for the lesser “P-1 visa� which is almost automatically accorded to NBA athletes under contract. Either way, a completed I-129 visa form, which is a petition for nonimigrant worker, will be required as part of the visa application process. It will be reviewed by the U.S. Citizenship and Immigration Services agency of the Department of Homeland Security and will explicitly ask for Yi's date of birth. If it is later determined that Yi lied about his age, he can lose his visa status and even, albeit unlikely, be deported, while his team and the NBA could face sanction if they knowingly facilitated in any deception of the U.S. government. So before Yi receives his first NBA pay check, Yi will have to reveal his actual age, or risk the consequences (as some Major League baseball players have likely done, without consequence).

It is interesting how the NBA fought so hard for a minimum age floor of 19, and yet seems oddly content with sanctioning the draft entry of a player whose age may be 19, 20, 21, 22, 23, 24, or 25. We don't question the difficulty of obtaining Yi's age, but the NBA is well-financed business operation with business contacts throughout the world. Moreover, the league could deny Yi's eligibility until he and his representatives established greater certainty about his age. Instead, the NBA seems unmoved by the issue, which is puzzling given the ramifications that such a high draft pick could have on one of its member franchises and the credibility of the league itself. In the interest of sporting and legal integrity, we believe that it is imperative that the NBA be as vigilant with ensuring the accuracy of a player's birth date as it is with ensuring that the player meets the age floor.

[Note: Co-author Jason Chung is a graduate of McGill University and author of an article on race and the Wonderlic Exam. He is also a research assistant for Jon Hanson and Michael McCann at the Project for Law and Mind Sciences at Harvard Law School]

Posted By : Jason Chung and Michael McCann

New Sports Law Scholarship

Message posted on : 2007-06-14 - 12:41:00

New scholarship:
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)

Posted By : Geoffrey Rapp

Law and Violence: Will There Be a "Melee" Over Bonds' 756th Home Run Baseball?

Message posted on : 2007-06-13 - 20:45:00

With 747 career home runs, Barry Bonds is just eight away from tying Hank Aaron's major league record of 755, perhaps the most storied record in baseball history. Bonds has already hit 13 home runs this season, and according to ESPN.com, is on pace to hit 35 by the end of the season--not too shabby for a soon-to-be 43 year old.

More meaningfully, when Bonds hits career home run #756, he will break Aaron's record. And when that happens there will be a celebration of some type--the actual "type" remains to be seen, as many in baseball will discount Bonds' achievement as steroid-assisted. In fact, MLB Commissioner Bud Selig is said to be undecided about attending, while the 73-year-old Aaron has already said that he will not be there. If it happens on the road, Bonds will certainly get his share of boos, but home or away, I suspect most of the crowd will cheer for him.

But what will happen before the celebration and right as an otherwise ordinary baseball becomes the record-breaking baseball? That baseball will travel into a part of the ballpark, and anyone who is anywhere near it will go for it, and probably go for it hard. And that's because regardless of what one thinks of Bonds and his record-deservedness, the baseball he hits to set the new record will be worth a lot of money.

Just consider what other record-breaking balls have fetched. As reported by blogger Larry Brown on Barry's World, Mark McGwire's 70th home run ball sold for $3 million, while Bond's own home run ball that broke Babe Ruth's 714 career mark sold for over $200,000. So how much will the baseball for the all-time home run champ be worth? A lot. Even if you don't like the champ's personality or question the means he employed to become the champ, you know that the record-breaking baseball he hits would be great to own.

Not surprisingly, auction houses have expressed an interest in purchasing the ball from whomever catches it. One such house, Heritage Auction Galleries, even put a $1 million bounty on it. But then it pulled the promise. Why? As Darren Rovell details on Sports Biz, Heritage claims that it didn't want to be exposed to a negligence claim should--in Heritage's words--a "melee" break out as fans compete for the ball, thereby exposing themselves and others nearby to injury. Rovell, however, believes that Heritage's real reason for dropping the bid is that company officials became uncertain about the ball's value on the open market, and thus their stated reason for dropping the bid--liability for causing or contributing to a melee--is probably pretext.

I tend to agree with Rovell's analysis. With or without Heritage's public intentions to buy the ball for $1 million, some fans in the ballpark are going to compete vigorously for the ball, assuming it is hit to a part of the ballpark that lends itself to such competition. After-all, it's no mystery that the ball will have significant market value--it's the ball that will break perhaps the most cherished baseball record--and that knowledge will undoubtedly affect the behavior of those in the ballpark; some may even become violently aggressive, particularly if they have had too much too drink. While Heritage's involvement might illuminate the ball's value, I doubt it would turn otherwise docile fans into crazed ball hawks. Along those lines, while I understand the premise of Heritage's stated worry, it seems rather quixotic in practice. Moreover, if a melee were to occur and injuries result, it would seem that the ballpark, host team, and the company employed to provide security would be more vulnerable to liability, as they would be involved in the stadium's security [for more on the subject of stadium security and tort liability, please see my article Social Psychology, Calamities, and Sports Law, 42 Willamette Law Review 585 (2006)].

I also wonder about the track record of fans fighting for home run or even foul balls. Do fans actually fight and injure one another while trying to get baseballs? The San Francisco Chronicle reports that a fist fight almost broke out over Bonds' 73rd and final home run in his record-breaking 2001 season, but I'm unaware of violence and resulting tort lawsuits from melees over baseballs. If you know of such instances, please share.

Having said that, when Henry Aaron broke Babe Ruth's record on April 8, 1974 before his home crowd in Atlanta, an unquestionably animated crowd reaction ensued (although there was no competition for the ball, as it was caught by Braves' closer Tom House):
Posted By : Michael McCann

Blogging and Broadcasting

Message posted on : 2007-06-12 - 08:25:00

Yesterday, Howard discussed the NCAA blogging incident primarily from a First Amendment standpoint. I wanted to focus more on the intellectual property question and respond to two points raised in his post:

First Point: "I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted." [The newspaper's attorney, Jon Fleischaker, said something similar to that effect: "Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact."]

These comments tend to echo the rationale of the Second Circuit in NBA v. Motorola. However, there is no dispute that facts cannot be copyrighted because copyright law protects "original works of authorship." Thus, the fact that SportsTrax displayed on its pagers purely factual information on NBA games in progress was held not to violate the copyright of the broadcasts. But the debatable issue in Motorola was not the copyright issue, but whether SportsTrax unlawfully misappropriated the NBA's property right in its games; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs. I happen to think Motorola was wrongly decided, and for a contrary holding involving the same issue, see Morris Communications, Inc. v. PGA Tour.

Thus, the NCAA would not claim that it has a copyright to the facts of the underlying event. The NCAA would instead argue that it has a right to control who disseminates reports and accounts of the game and to enter exclusive license arrangements with those who disseminate them. The NCAA would rely on the landmark case of Pittsburgh Athletic Co. v. KQV Broadcasting Co. In that case, KQV had its own paid observers watch the games from vantage points outside the stadium and on premises leased by KQV such that the observers could see over the stadium enclosures, and then broadcasted radio play-by-play descriptions of the games over its airways. The Pirates sued claiming that KQV was violating its exclusive radio broadcasting arrangement with NBC. The court correctly ruled against KQV: "The right, title and interest in and to the baseball games played within the parks of members of the National League, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."

KQV certainly would not be permitted to do inside the stadium what it was prohibited from doing outside the stadium. So whether Bennett is blogging inside the stadium or outside the stadium is irrelevant. Thus, I disagree with Howard's statement that "if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room." Simply, radio stations are prohibited from having personnel watch games on television from their living rooms and disseminate radio broadcasts of the game without a license. The key question to me is whether disseminating "in progress" reports and accounts of the live game over the internet constitutes a broadcast. If it does, then Bennett loses, which gets us to Howard's next point.

Second Point: "No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights? Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. [Fleischaker made a similar remark: "The blog wasn't a simulcast or a recreation of the game. It was an analysis."]

I don't see how we can easily dismiss the broadcasting question. If Bennett is talking about what happened simultaneously as he saw it happen, how is that any different than a radio broadcast? Isn't what Bennett was doing simply a broadcast of the game over the internet? Bennett was providing in-depth analysis and play-by-play of the live event, which goes beyond merely providing updates of the score over a pager. This makes the situation distinguishable from Motorola, in which the court acknowledged two products constituting the NBA's primary business: (1) generating the information by playing the games; and (2) transmitting live, full descriptions of those games. The court was of the opinion that SportsTrax was not competing with the NBA's second product because SportsTrax was collecting and retransmitting strictly factual material about the games.

The rationale here is fairly straight forward: The value of any game is at its peak while it is being played. If a third party can transmit live, full descriptions of the games without a license, then it jeopardizes the league's property interest in the live event. When that happens, the league loses the incentive to produce the live event. And I'm not buying the "fair use" defense here. Bennett isn't informing the public in a limited manner about the outcome of the game. He is simply using his capacity as a newsreporter to disguise what he is actually doing -- broadcasting the event.

Posted By : Rick Karcher

More Speech Retrictions in Sports: The NCAA and Live-Blogging

Message posted on : 2007-06-11 - 21:40:00

Thanks to everyone who has e-mailed and commented on the story about Real Salt Lake. But that free-speech controversy, which occurred last Thursday, is old news; it thus takes a backseat to a newer, fresher free-speech controversy.

Last Friday, writer Brian Bennett of the Louisville Courier-Journal had his media credentials revoked and was removed from the press box at the University of Louisville's Jim Patterson Stadium. The reason? He was live-blogging the NCAA Super-Regional Baseball game between U-L and Oklahoma State. This apparently violated an NCAA policy that deems live-blogging to be a "live representation of the game" and thus a violation of the NCAA's broadcast agreements with CBS and ESPN. The NCAA also seems to argue that the events at games are its intellectual property and can be distributed while the game is going on ("between the first pitch and the final out of each game") only through NCAA-approved outlets. The NCAA wants to ensure that the public either is watching an NCAA-approved broadcast on television or on a web feed; no reading about it on other sites. Reports and comments here, here, here, here, here, here, and here. Thanks to several alert readers and commenters for bringing this up.

The Courier-Journal is making First Amendment noises, pointing out that its writers are being prevented from reporting about events occurring in a public facility. So, as my favorite Soprano's commentator would say, let's deconstruct.

Unlike our previous examples, state action is not a problem. The University of Louisville is a public institution and Jim Patterson Stadium is a public, on-campus facility. The fact that U-L was enforcing an NCAA rule, rather than one of its own making, is irrelevant. U-L adopted the rule and made it its own by enforcing it. One report on the story states that U-L acted to revoke Bennett's credentials only after the NCAA told U-L officials that failure to enforce the rules might be used to deny U-L future opportunities to host NCAA events. So it would be ironic if doing so caused U-L to violate the First Amendment. But that is what happens when institutions get into bed with the NCAA.

So, some thoughts about the free-speech concerns.

1) I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted. But I invite those with more knowledge of intellectual property (including my co-bloggers) to educate me on this point.

2) No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights?
Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. And consider an additional problem with the rule--if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room.

3) How far can this rule extend? Could the NCAA stop a fan in the bleachers from describing the action via his cell phone? Could it stop someone from calling his friend, where the friend is sitting by a computer at Starbucks waiting to live-blog the report (remember the scene in Bull Durham, showing how they did radion broadcasts of the team's away games?)? Could the NCAA stop a fan in the bleachers with a WiFi connection or a Blackberry from live-blogging? If the answer to those questions is no, as I think it must be, then the NCAA's rule is invalid because it treats non-media speakers better than media speakers.

4) Related to # 3: Deadspin points out that wire services have historically provided running in-game updates--reporters provided editors with updates, which were sent out over the wires. Live-blogging seems to work on the same principle. It is faster and uses different technology. And it reaches the end-user (the reader) directly and in real-time, rather than being filtered through the editor and the wire. But there is no meaningful distinction.

5) Here is the potential wrinkle: The dispute here is about access to a particular, narrow part of the stadium: the press box and everything that comes with media credentials. Teams generally have greater (although not unlimited) discretion in deciding who gets such media credentials, while exercising no discretion over who can, by buying a ticket, access the broader public forum of the stands. Presumably, U-L/NCAA could set some conditions on granting those credentials (conditions it could not impose on the ordinary bleacher bum). Might one permissible condition be a limit on the time and manner in which reporters could provide information to the public--no live reports until the game ends?
It seems like a content-neutral rule--it applies to everyone reporting about the game, regardless of what they are going to say. But I would suggest it still fails because it does not appear to serve any meaningful government interest. I cannot see a valid justification or interest underlying this rule.

Let me close on two points. First, Deadspin predicts that, given the stream of bad publicity for the NCAA (which certainly does not need more bad publicity or more events illustrating its institutional incompetence), the policy will be gone within a week (i.e., by the start of the College World Series). I think they are right.

Second, and a determinant of the first, much depends the media rallies to the Courier-Journal's defense and how much noise the media makes about this. And that depends on how willing the old media is to support the new-media bloggers that MSM reports spend so much time railing about. It helps that the blogger in this instance works for a good, old-fashioned newspaper. But this is the future of sports writing.

A host of newspapers and media outlets got behind Larry Flynt and Hustler Magazine when they were sued by Jerry Falwell. If the old media can support a pornographer, can they support a blogger?

Posted By : Howard Wasserman

The Political Content of Cheering Speech

Message posted on : 2007-06-10 - 11:06:00

Is it me or do there seem to be an increasing number of instances of sports teams attempting to control fan cheering speech? I blogged about two recent examples here and here and I wrote at length about it a year ago here.

Now via RSLFM, a blog devoted to the MLS's Real Salt Lake, comes this report (on the home page, click on 6/9/07 to get to the page). Last Thursday, RSL played the People's Republic of China in a friendly at Rice-Eccles Stadium on the campus of the University of Utah. Several fans showed up with flags from Taiwan and Tibet (see photos above) and banners reading "6-4" (a reference to Tienanmen Square). During the second half, several players from the Chinese team refused to continue playing until the flags and fans were removed. Which they were; RSL team officials, apparently assisted by University of Utah campus police, told the fans to put the flags away or get out of the stadium. The RSLFM link has video. A full discussion of the controversy on one local media outlet can be found here; the outrage among some seems to be that the Chinese government is dictating what speech is permitted and what is offensive in Salt Lake City.

Cheering speech is not limited to "insignificant" cheering, jeering, and heckling about the game and players. Rather, cheering speech can, and often does, include pure political expression that is uniquely appropriate at a sporting event. Here, we have a clear protest against the repressive policies of the Chinese government towards Tibet, Taiwan, and its own people. Sports is immersed in political and social overtones in most situations. That is even more so in this instance, given that a representative of the Chinese government was playing in the game. The grandstand should be the ideal forum for this protest and this expression.

This also shows the problem with fan-conduct codes, such as the one in Seattle, that prohibit "taunting." At some level, that is what the fans were doing--flaunting the symbols of China's human rights abuses and heckling the players for their connection to the Chinese government and those policies. Fans were, in part, being provocative in displaying these symbols at the Chinese players, coaches, and officials. But given the overtly political content, the expression of such views cannot be prohibited consistent with the First Amendment.

RSL has defended its decision, arguing that it had the power to remove fans who "disrupted" the game. But the "disruption" resulted from several Chinese players refusing to play until the offending speech and speakers were removed. The general First Amendment principle is that government cannot prohibit speech simply because some listener will be offended or annoyed by that speech--especially when we are in the realm of pure political protest.

Which brings us back to the key issue: State action. Rice-Eccles Stadium is a public facility (owned by the State of Utah), RSL is a private entity renting that facility for what it terms a "private event." In arguing that teams such as the Yankees and Mariners become state actors in operating publicly funded and owned stadium, my paradigm was the typical major-sport situation: The stadium was built specifically for the team's long-term and exclusive or near-exclusive use, with the team given substantial or total control over, and benefits from, the stadium. I did not have in mind the situation here: RSL is not the exclusive or even predominant tenant, it does not appear to be a long-term tenant, and it does not use the stadium on the sort of favorable terms that, for example, the Mariners use Safeco Field. Perhaps this situation represents a middle ground between exclusive use (the Mariners at Safeco Field) and one-time use (a private organization given a one-time permit to hold the annual Gay Pride Parade down city streets), requiring some line-drawing as to where on the state-action line the team should fall along a continuum. This will be a detailed factual inquiry, looking at how often and how long the team uses the stadium and the terms and conditions of that use.

Alternatively, this situation may be more analogous to the private entity with a permit to hold a parade or rally in public spaces--I would not suggest that such a private entity becomes a state actor in all cases.

But this case presents one additional factual wrinkle--apparently, University of Utah police were directly involved in carrying out RSL's demand that the flag-wavers be removed. This fact is important in two respects. First, direct police participation enhances the argument for "entwinement" between the team and the government under Brentwood, since the team's decisions in the management of a public space are being carried out directly by an arm of the government. Second, direct police participation may mean it does not matter whether RSL is a state actor because it was the police (i.e., the State) that carried out the First Amendment violation by removing the fans for their expression, potentially subjecting the officers themselves to First Amendment suit by.

Police involvement also knocks out RSL's argument that this is a private event that RSL can control. This is true for what occurs on the field, but less true for what occurs in the grandstand that has been opened to the public for the specific purpose of engaging in expression. Return to the parade analogy: If a gay rights group obtains a permit to hold the Gay Pride Parade, it can control who participates in the parade and what gets said as part of the parade. But it cannot control what happens along the parade route. I believe there would be a First Amendment violation if the parade organizers insisted that police remove from the crowd an individual carrying a "God Hates Fags" banner.

But let's put to one side state action and whether RSL could be legally liable for removing the fans. Let's consider the broader question of whether a private entity should restrict fan speech in this context, even if it can. The grandstand is a forum designed and opened to the public for cheering speech. A proper respect for the principles and ideals of free expression should command teams to recognize the full range of expression in that category and to allow discussion, particularly the political discussion, in the fan spaces to be "uninhibited, robust, and wide-open."

Posted By : Howard Wasserman

Daunte Culpepper: Walking Alone On and Off the Field

Message posted on : 2007-06-09 - 12:45:00

Yesterday was not a good day for Miami Dolphins quarterback Daunte Culpepper. The 30-year-old, who was supplanted as the team's starter earlier in the week upon the trade for Trent Green, was only allowed by Dolphins' officials to participate in individual drills during mini-camp; despite his desire to practice with his teammates, the coaching staff told him that he could not do so. Why? They thought that it would make sense to ease him back as he recovers from re-constructive knee surgery--especially as the front office tries to trade him with Green on the roster.

In response to the practice restrictions, Culpepper walked off the field, accompanied by a member of the Dolphins' security staff. Clearly, the frustration of losing his starting job, coupled with being separated from his teammates by team officials who thought he wasn't good enough to start, got to him, as it would to many players in that situation.

So how will the Dolphins and Culpepper work out their problems? A trade doesn't appear to be an option: Culpepper says that he will not report to any team that trades for him. Instead, he wants his outright release so that he can pick his next team. Aside from getting that choice, I suspect Culpepper might also want to see the Dolphins not get compensation for him. But the Dolphins don't want to release a player who has trade value. So both sides seem to lose here: Culpepper stays away from the team, perhaps looking selfish and not getting paid, while new Dolphins head coach Cam Cameron begins his coaching tenure with a much unwanted distraction, and also subject to criticism that he needlessly embarrassed Culpepper when precluding him from team practice.

Where is Culpepper's agent in this story? He's always there with Culpepper . . . . because he is Culpepper. Culpepper is one of the few NFL players who acts as his own agent. The upside to such an arrangement is momentary: Culpepper doesn't have to pay a fee to an agent, which can be as high as 3 percent of his salary.

But would he be better off with an agent? In the abstract, without knowing who that agent might be or his/her talents, it's hard to know how he/she would compare to Culpepper acting as his own agent. But it seems reasonable to conclude that an agent would be especially helpful when one finds himself angry with his team. An agent can work to diffuse the tension, acting as an intermediary or buffer between the player and team, and also develop a public relations strategy to deal with media. Those points seem particularly true considering what social psychology teaches us about how poorly we understand ourselves and the ways in which our minds work (to read further about that topic, please check out The Situationist and the Harvard Law School Project on Law and Mind Sciences)--if there is ever a time when one needs counsel, it's during crisis. While it's possible that Culpepper may have an attorney or other adviser, the press reports I've read do not indicate that he does. We'll see what happens.

Update (7:20 p.m.): Late this afternoon, Culpepper released a press release that he said he wrote. In it, he reiterated his demand for a release and insisted that he will not practice with the Dolphins. However, he said that he will still attend Dolphins' training camp to workout and lift weights. Also, in a move that would make Rick Karcher proud, Culpepper has asked for and received counsel from the NFLPA on this matter (Rick has written extensively about unions, rather than agents, representing players):

I am now waiting for the Dolphins management to do what is right and fair by granting my release so that I can find a team that will appreciate my talent and love for the game. I do not want to cause any disruption while I wait, so I will only be at the facility in order to run and lift. What happened Friday in the team meeting and on the field was unfair to both me and my teammates. The NFLPA legal department is reviewing the situation and Gene Upshaw has encouraged me to continue to be patient and professional.


Posted By : Michael McCann

Reaching New Audiences

Message posted on : 2007-06-09 - 11:10:00

A nice mention for the Sports Law Blog on NPR's "All Things Considered" yesterday, during Stefan Fatsis' weekly commentary on the business of sports. Fatsis talked about blog posts on Jason Giambi and Red Cards at Safeco Field. The link to the segment is here.
Posted By : Howard Wasserman

Speechless in Seattle

Message posted on : 2007-06-07 - 21:46:00

The Seattle Weekly reports about new policies governing fan cheering at Seattle's Safeco Field. (H/T: Deadspin). According to the story, Safeco Field ushers can issue fans "Red Cards," which warn fans that their behavior has crossed the line and that continued misbehavior will result in removal from the ballpark. Among the infractions for which Red Cards can issue are 1) Foul or abusive language or obscene gestures; 2) Obscene or indecent clothing; and 3) Fighting, taunting, or making threatening remarks or gestures.

The article does not mention the First Amendment. But these fan-conduct policies have been the major focus for my arguments about the constitutional protection for "cheering speech." Except for perhaps "threatening remarks" (assuming they satisfy the fairly narrow definition of "true threats," which they usually will not), everything enumerated on the Red Cards as "unacceptable" is, in the vast majority of cases, constitutionally protected. A person cannot be punished for using foul language (whether orally or in writing or on clothing), for wearing indecent clothing (whatever that means), or for heckling a ballplayer on the field hundreds of feet away. It seems ridiculous to punish fans, who frequently are exhorted to "get loud" in support of the team, for being "too loud." And where is the line between "criticizing" players or umps (which has to be permissible) from "heckling" them? The Mariners essentially are trying to enforce civility norms in a public space--something that the First Amendment does not permit.

The problem, of course, is that the Mariners are acting as a private entity, not subject to the limits of the First Amendment. But Safeco Field is another publicly owned/publicly financed park, built for the exclusive long-term use of the Mariners and containing highly favorable and beneficial lease terms. For many of the reasons discussed as to the Yankees being state actors , I would argue (although no courts has yet agreed with me) that the Mariners (and other teams in similar situations) are state actors in operating Safeco Field and regulating fan expression in the grandstand. With that move made, the fan code of conduct should ripe for challenge by any fans removed from the ballpark for engaging in a range of cheering speech that is prohibited by these codes.

It is worth noting that the Mariners are the ones who started all of this. The article quotes the team's vice president for ballpark operations bragging about the Mariners being among the first teams to develop a fan conduct code. And the Mariners brought the issue of fan expression to the fore in 2002, when the team tried to ban fans wearing "Yankees Suck" t-shirts. Actually, those efforts caused such a backlash that the team rescinded the rule. It is thus surprising (and disappointing) that the Mariners would revise and even expand similarly constitutionally problematic rules.

Of course, the continued existence of these policies means I always have something to write about.

Posted By : Howard Wasserman

Giambi to Meet with George Mitchell

Message posted on : 2007-06-07 - 20:59:00

Good comments from Michael Dorf about Major League Baseball's request/command/demand that Jason Giambi meet with George Mitchell to discuss Giambi's past steroid use. Mike focuses on two concerns: 1) whether Giambi ever admitted to using steroids after the point that MLB outlawed them and 2) whether Giambi is placing himself in danger of criminal prosecution by talking to Mitchell (implicitly, whether Giambi should or might assert his Fifth Amendment privilege).

More troubling, MLB says "discipline will be determined after Giambi has completed activities" with the Mitchell investigators. The implication seems to be that Giambi's punishment will decrease as his cooperation increases--in other words, the more willing he is Giambi to admit his past misdeeds and to identify other past steroid users. Alternatively, if Giambi were to plead the Fifth, one could imaging MLB ratcheting up the discipline because, by protecting himself from possible prosecution, Giambi has not been "cooperative."

Posted By : Howard Wasserman

Were Orlando Magic Season Ticket Holders Deceived by Billy Donovan's Hiring?

Message posted on : 2007-06-06 - 21:39:00


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Darren Rovell has an excellent post on his CNBC Sports Business Blog regarding whether Orlando Magic fans who purchased season tickets while Billy Donovan was a willing head coach have a legal right to demand a refund from the Magic (Howard blogged about Donovan's situation earlier this week).

Rovell interviews Duke law professor Paul Haagen, who I blogged about last September in regards to the Faculty Associates Plan at Duke University, for his story:
Assuming the 200 fans that bought season tickets in the 24 hours surrounding Donovan's hiring bought the average seats -- $40 per game for $1,800 a season -- that would mean that the Magic would have to refund $360,000. I called the team this morning and asked them if they were refunding tickets. A ticket representative told me that nothing had been determined yet.

Duke law school professor Paul Haagen told me earlier this week, he thought the team would have a case if they didn't give the fans their money back. “I suspect that they intend to hold those ticket holders into their contracts and they're not intending to release them,� Haagen told me. “They didn't in fact guarantee that Billy Donovan would be the coach when they announced that he would be the coach.�

Now that's interesting. Haagen is basically saying that there wasn't any legal language that tied Donovan to season ticket contract. I'm not a lawyer, but I think this is good enough.

Have fans ever before demanded a refund because they were upset about a coach quitting so quickly? Neither Rovell nor I are aware of that happening. But I do recall the one day when Bill Belichick was, in his words, "HC of the NYJ." However I don't recall any Jets fans claiming that they bought season tickets because Belichick was, at least for several hours, going to take over for Bill Parcells as head coach. Rovell does cite a Canadian case where a fan of the Ottawa Senators unsuccessfully argued that he would not have bought season tickets for the 1999-2000 season had he known that Alexi Yashin would not be part of the team (Yashin held out for the entire year). That case was dismissed because it was impossible to prove that the fan bought the seats because of Yashin.

Along those lines, would any Magic fan spend thousands of dollars on Magic seats merely because of Billy Donovan's hiring? I suppose it's possible, as they may pay that money to see a star player even if his team stinks. But I suspect fans bought those seats because they were excited about Donovan, a good possibly great coach, coaching promising young players like Dwight Howard and Jameer Nelson on a team with a ton of salary cap space to spend on free agents. In other words, they were probably buying into the situation that Donovan was a part of; whether he was an essential part seems hard to establish. That is particularly true in a "players league" like the NBA, where coaching does not appear as meaningful to a team's win/loss record as it does in other leagues, most notably in the NFL, although that point is debatable.

There may be several other possible reasons against Magic fans enjoying a legal right to a refund. How about when a team markets a player to prospective season ticket holders and then trades him? Say the Lakers trade Kobe Bryant later this summer--will fans who purchased season tickets thinking that Kobe would be part of the 2007-08 Lakers team be able to demand a refund? The sensible answer would seem to be no. As Paul Haagen notes, teams can't guarantee future rosters or even coaching and management staffs. Change and turnover are the nature of modern sports teams.

Posted By : Michael McCann

An Ironic Twist on the Allison Stokke Controversy

Message posted on : 2007-06-05 - 12:46:00

About a week ago, a controversy erupted around Allison Stokke, an 18-year-old high school high school senior and one the top female pole vaulters in the country, who happens to be a very attractive young woman. In early May, the blog With Leather posted photos and commented on Allison being an attractive young woman and an outstanding athlete (in that order). He initially removed the photos in response to requests and/or demands from the Stokke family.

But by then, the photos (and the story) were out there and Allison was being bombarded with much unwanted attention: including interview requests, phone calls, staring strangers, etc. The family fought back by sitting for an article in the Washington Post, in which they complained about being "steamrolled" by the wave of attention. And the headline, "Teen Tests Internet's Lewd Track Record," captures the family's narrative: evil internets sports blogs opening their daughter's life up to the world. Of course, the idea of objecting to the wave of publicity surrounding Allison by talking about it in the # 2 paper in the country (and including photographs of Allison with the story) struck many as a questionable strategy. And With Leather responded by insisting that what makes Allison of interest is the same thing that makes Maria Sharapova of interest: She is attractive and she also is very good at what she does, so this is not mere objectification of a woman (draw your own conclusion about that).

The Post story included this statement:

Her father, Allan Stokke, comes home from his job as a lawyer and searches the Internet. He reads message boards and tries to pick out potential stalkers. "We're keeping a watchful eye," Allan Stokke said. "We have to be smart and deal with it the best we can. It's not something that you can just make go away."
Now here is where irony can be pretty ironic, from Ann Friedman at Feministing and Ann Bartow of PrawfsBlawg. Allan Stokke is a criminal defense attorney who has defended men accused of sex crimes specifically by attacking (as he often must) the scope of legal protection that should be afforded the female victim. According to various reports, in one case, Stokke defended one of several teen-agers accused of gang-raping an unconscious 16-year-old girl, in part by arguing that she could not feel physical pain during the attack because she was unconscious. In another case, he successfully defended an Irvine, California police officer who masturbated on a woman during a traffic stop, in part by arguing that the woman, a nude dancer and an "overtly sexual person," "got what she wanted." (The City of Irvine apparently had a different view of the case and settled the woman's civil action for $ 400,000, a substantial amount of money for civil rights actions not involving bodily injury).

My focus here is the irony. Allan Stokke has explicitly pushed an understanding of how the law should treat women (or, at least, certain women) in certain situations. But that view does not apply when the woman in question is his daughter. And he is pushing this different view as to his daughter with respect to conduct (posting photographs and comments without her consent) that is almost certainly constitutionally protected and, in any event, is an order-of-magnitude less severe than the conduct he has defended in the courtroom. I assume, for example, he would not accept the argument that his daughter "got what she wanted" by being an attractive and successful female athlete who should be in the public spotlight. Nor would he accept that his daughter suffered no harm because she did not know who was looking at photos of her on the internet.

I am not suggesting that Allan Stokke should not have made the legal arguments he did; he must use all ethical and appropriate means to zealously defend his clients (although I am not sure how the "overtly sexual person" argument got through under California's rape shield rule). But I am suggesting that such arguments instantiate views in law and society that have broad effects. And those effects often come home to roost.

I am (as those on my mass e-mail list and those who walk past my office well know) the father of a 17-month-old daughter. And I hope my daughter grows up to be a smart, attractive, athletically gifted young woman (much depends on whether she is fortunate enough to take after her mother). I hope I behave towards all the woman I encounter in life (students, colleagues, friends) the way I hope my daughter will be treated throughout her life. And I recognize that the way I behave towards those woman now goes a long way to establishing how law and society will treat my daughter 20 years from now.

(PS: The photograph at right appeared with the Post story and thus, presumably, is one to which the Stokke family does not object).

Posted By : Howard Wasserman

New Developments in Michael Vick's Pit Bull Fighting Saga

Message posted on : 2007-06-05 - 12:23:00

We've blogged a couple of times about Michael Vick possibly running afoul of the law due to the existence of an illegal pit bull fighting at a home he owns in Smithfield, Virginia (see "The Legal Process and Michael Vick" and "Michael Vick, Pit Bull Fighting, and the NFL's New Personal Conduct Policy"). There have been a couple of developments over the last few days:

1) Steve Wyche of the Atlanta Journal-Constitution reports today that the home was burglarized sometime between May 7 and May 18, with three plasma TVs and a leather sofa valued at $17,550 stolen. For some reason, the home's alarm was not working at the time. The county prosecutor, Gerald Poindexter, does not believe that the burglary had anything to do with the investigation. Along those lines, while someone who has seen one too many Sopranos episodes might wonder if the burglary was really an inside job to get evidence out of the home under the guise of a break-in, there is no evidence for that much more engaging, if completely quixotic, narrative.

2) Don Walker over on his Business of Sports Blog reports that Vick's association with dog fighting has already hurt his marketing power: discount airline AirTran, which is in a lengthy battle to take over Midwest Airlines, has dropped its relationship with him by not renewing its endorsement contract. It's not clear how much Vick earned from that deal, but he did get free airline tickets. Before the dog fighting story emerged, AirTran already had reason to question the value of its relationship with Vick, for as David Hirshman reports in the Atlanta Journal-Constitution:
Vick was in line to board an AirTran flight in Miami in January when TSA agents found he had discarded a water bottle that contained a hidden compartment. Police said they smelled marijuana and found a "dark particulant" in the 20-ounce bottle. No charges were filed and Vick later said he often had jewelry stored in the hidden compartment.
The good news for Vick? Poindexter insists that no evidence has been presented that would lead him to charge Vick with any crime.

Posted By : Michael McCann

Insightful Commentary on Billy Donovan's flip-flop

Message posted on : 2007-06-05 - 07:11:00

From the St. Petersburg Times here and here, including comments from some of your Sports Law Blog contributors.
Posted By : Howard Wasserman

New sports law scholarship

Message posted on : 2007-06-04 - 12:29:00

New this week:
William B. Gould, Globalization in collective bargaining, baseball, and Matsuzaka: labor and antitrust law on the diamond, 28 COMPARATIVE LABOR LAW & POLICY JOURNAL 283 (2007)

Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes, 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)

Gary P. Quiming, Comment, Playing by the rules of intellectual property: fantasy baseball's fight to use Major League Baseball players' names and statistics, 29 UNIVERSITY OF HAWAI`I LAW REVIEW 301 (2006)

Posted By : Geoffrey Rapp

David's Revenge? Teams Suspect Stern Rigged NBA Lottery to Punish The Tankers

Message posted on : 2007-06-03 - 12:13:00

Ian Thomsen of Sports Illustrated reports on the most recent meeting of the NBA competition committee--a meeting held in Orlando last Tuesday and one that Thomsen calls "the most important competition committee meeting in years." The four-hour long meeting was chaired by Commissioner David Stern and attended by representatives from 29 of the 30 teams. Apparently things got testy when the topic turned to tanking, as Thomsen writes that there are "suspicions among some league executives and coaches that Stern rigged the results of the lottery." According to these suspicions, Stern somehow manipulated the ping-pong balls so as to punish the three teams (Grizzlies, Celtics, and Bucks) that were alleged to have purposefully lost games:
According to people who were there, the big issues were the alleged tanking of regular-season games, the mess created by last week's lottery and the rule prohibiting players from leaving the bench during on-court altercations that resulted in the suspensions of the Suns' Stoudemire and Boris Diaw during the West semifinals.

Stern admitted the league has created a perception that the worst teams have been losing on purpose over the second half of the season in hope of improving their position in the lottery. He said the fans don't like it, and he added that he was open to suggestion on how to redress the perception.

There are suspicions among some league executives and coaches that Stern rigs the results of the lottery -- in this case to punish the three worst teams (Memphis, Boston and Milwaukee, who came out of the lottery Nos. 4, 5 and 6 in the draft) for contributing to the perception of late-season tanking. To deal with the conspiracy theories, the league spelled out during the committee meeting how the lottery machine works and how it would be practically impossible to fix the outcome. (I've been in the closed room during the lottery, and the NBA mechanism is a lot like the Powerball or other lottery machines that you see on television.)

Amid the discussion of tanking spoke up former Memphis coach Tony Barone, representing the Grizzlies in place of team president Jerry West (whose absence was seen by some as a statement of protest), to make an impassioned defense of his team's play. He was adamant that the Grizzlies hadn't been tanking games and he responded forcefully and sincerely to the insinuation.

As to the fact that the three neediest teams were shut out of the top three picks, Stern again said that he was open to suggestion for a better system.
As often as I criticize David Stern, I am going to defend him here. I feel confident saying that the lottery was not rigged and there was no conspiracy. Stern may be powerful, but short of telekinetic powers, I strongly doubt that he could or would have rigged the lottery, particularly given that an independent lottery firm--albeit one hired by the NBA--actually conducts it. The results were certainly unfortunate for the three teams with the three worst records, but that is the nature of a lottery where no team--including the team with the worst record--has a likely chance of landing either of the first two picks.

As to whether teams intentionally tanked games, I guess it depends on how one defines
"intent." I'll consider the Celtics, since I follow them more closely than I do any other NBA team.

1) Did Coach Doc Rivers set out to lose games? Probably not, as I do not think his conscious object was to see his team lose games, particularly given pride and a weakened hold on his job. But did he experiment with lineups in ways that he would not have had his team been competing for a playoff spot? Probably, perhaps because he wanted to evaluate players for next season or because he was trying to catch lightening in a bottle, and by doing so, he likely knew there was a substantial risk that his team would lose more games.

2) Would Paul Pierce have played through elbow and foot injuries had his team been in playoff contention instead of being shut down with a few weeks left in the season? Probably, especially given his reputation for playing hurt. But was he really 100% and covertly kept out by GM Danny Ainge so that the team would lose more often? Probably not.

3) Could Al Jefferson have played through a minor knee injury in April rather than sit out a week? Probably. But was he "kept out" to ensure additional loses? Probably not.

I guess I would call it "passive tanking" which might reflect the "reckless" mens rea in criminal law:
being aware that certain behavior poses a substantial risk of causing harm, but having other, possibly acceptable, intentions for the behavior. That may not comprise laudable conduct, but it's not as egregious as is generally implied by the word "tanking."

For related coverage on Sports Law Blog and The Situationist, check out:

Update 6/4/07: ESPN's Henry Abbott analyzes how the rigging could occur and explores ways that Commissioner Stern and the NBA could diminish suspicions, including:
Redesign the lottery so that the real drawing happens live on international TV. Seeing grim men in suits arrive in the TV studio with the envelopes all ordered by some secretive behind-the-scenes process does not help perceptions.

Posted By : Michael McCann

Would they treat John Roberts this way?

Message posted on : 2007-06-02 - 20:23:00


The next time anyone compares judges to baseball umpires, show them this clip. (H/T: The Worldwide Leader).

Funny to watch. But what would become of the attorney who reacted this way to a judge's evidentiary ruling?

Posted By : Howard Wasserman

Arizona to Waive Sales Tax to Attract 2009 NBA All-Star Game?

Message posted on : 2007-06-01 - 14:25:00

2007 NBA All Star Game Las Vegas 2Later this summer, NBA Commissioner David Stern will announce which city will succeed in its bid to land the 2009 NBA All-Star Game. The game has come under controversy of late, with this year's game in Las Vegas drawing rebuke for attracting, in Bill Simmons' words, "so many gangbangers and troublemakers" (an observation vehemently challenged by Jason Whitlock when he spoke at Harvard Law School in April). Next year's game will be played in New Orleans, a city still recovering from Hurricane Katrina and one that some commentators and players are said to be uncomfortable with the All-Star festivities being held.

But the All-Star game is still a major attraction, particularly because it is a weekend long affair that generates significant revenue and attention for the host city and its businesses. Just consider that for all of the problems in Las Vegas, All-Star weekend attracted over 85,000 visitors and created nearly $91 million in local economic impact. That impact in part derives from the type of person who is able to attend the game: someone who can afford to pay between $1,000 and $6,000 for a game ticket.

And the city of Phoenix wants its turn at those benefits in 2009--so much so that some state lawmakers are seeking to pass a waiver of the state sales tax charged on tickets for the game and its associated attractions (Arizona has a 5.6% sales tax, with no exception for food or prescription drugs). Matthew Benson writes about this in today's Arizona Republic. The waiver, which is supported by Phoenix Mayor Phil Gordon, is said to be worth between $300,000 to $400,000 to the NBA and its sponsors who buy the tickets. Some believe that the NBA won't select Phoenix without the waiver, particularly because the city just held the game in 1995 and the NBA likes to "spread the wealth" when it comes to All-Star city selections.

There are at least two core arguments against the proposal, however.

1) A State Sales Taxes is Not a Comparative Disadvantage: 45 out of the 50 states have a sales tax of some sort, and the only states without one are Alaska, Delaware, Montana, New Hampshire, and Oregon. Although I grew up a mere 15 minutes from the New Hampshire border, I just don't see Manchester or Salem or Nashua landing the game, nor do I see the NBA turning to Anchorage, Wilmington, Billings, or Helena. Sure, Portland Oregon would be viable, but wasn't landing the first overall pick good enough news for them? (in fairness, Paul Gerald of the Willamette Week Online wrote a good piece today entitled "Ill-Starred: Why Portland Never Gets an All-Star Game"--Portland has never hosted the game. But they will be hosting Greg Oden for the next 15 years, so I can't feel too sorry for them).

2) Waiving the Sales Tax for an NBA All-Star game Benefits the Rich: Ken Cheuvront, an Arizona state senator, draws parallels between a All-Star Game sales-tax waiver and the big-dollar incentives offered by municipalities hoping to lure retail developers: "It seems absolutely ridiculous. I don't support it. I don't think it's good public policy. The tickets sell out anyway." And as Benson writes in his article, the NBA controls most of the tickets, and they tend to go those with a lot of money--those who presumably least need the sales tax break.

What are your views? Would waiving the sales tax for the NBA All-Star game--but not for groceries or prescription drugs--be a sell-out to the rich and privileged or would it be good business policy to attract an event that will generate revenue and attention and that might not otherwise occur?

Posted By : Michael McCann

Do Baseball Statistics Measure Fairness?

Message posted on : 2007-06-01 - 00:09:00

Over on PrawfsBlawg, Matt Bodie has a thoughtful post on the oddity of Major League Baseball teams and many of their fans being so openly obsessed with nuanced, sometimes esoteric, statistical measurements of players while being tolerant or at least less vocal towards glaring inequities between teams (thanks to Octagon associate general counsel Ryan Rodenberg for the link). Here is an excerpt from Bodie's post:
Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it. What league is this? Major League Baseball.
* * *

Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.

* * *

So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.

To read the rest of the post, click here.

Posted By : Michael McCann

MLB Still Fighting Slingbox

Message posted on : 2007-05-31 - 14:50:00

Last June, I discussed a dispute between MLB Advanced Media (MLBAM) and Sling Media Inc., manufacturer of the popular Slingbox device. Slingbox lets consumers rebroadcast the cable and satellite signals they receive on their home television to any computer, cell phone or second television located far away. Last year, MLBAM approached Sling Media about paying licensing fees for the distribution of televised baseball games and the company rebuffed. Apparently, that issue is not dead. Eriq Gardner of The Hollywood Reporter, Esq. addressed the status of that dispute in an excellent article about sports leagues' ability and efforts to legally control distribution of content in a high-tech era that entails the use of such devices as the internet, Slingbox and YouTube ("Sports Leagues' Slingbox Opposition Highlights New Game of Content Control").
Posted By : Rick Karcher

Proposed UFL and Antitrust

Message posted on : 2007-05-30 - 11:23:00

From my FIU colleague and occasional guest blogger Andre Smith (who is the real sports law guru on our faculty):


Dallas Mavericks owner Mark Cuban is involved in creating another challenger to the NFL, dubbed for now the UFL. I'm not sure what the “U� stands for, but I am guessing United, with Universal being a slighter possibility.

According to NBCsports.com, “Each owner will put up $30 million, giving him an initial half-interest in the team; the league will own the other half. Eventually each team is going to sell shares to the public... Then the owner, the league and the fans will each own a third of every franchise.�

This ownership structure is novel in professional sports and begs a question relating to anti-trust: Which section of the Sherman Anti-Trust Act applies to a league constituted this way?

The major professional sports leagues and organizations in the United States (NFL, MLB, NBA, NHL, NASCAR) consist of individual team owners who establish league rules through a non-profit entity, i.e., the League Office. These teams can be sued under section 1 of the Sherman Act for combining or conspiring to restrain trade.

Teams in Major League Soccer, on the other hand, are owned by the league. They are managed by franchise operators, rather than team owners. Being a single entity, then, there can be no “combination� or “conspiracy� to restrain trade. Still, MLS can be sued under section 2 of the Sherman Act, which prohibits attempts to monopolize.

So the question becomes, can the UFL be sued under section 1, if the league owns 51% of all the franchises, 50% of all of them, 33% of them, or 51% of more than half of the teams and minority stakes in the rest? Often in federal taxation, a subsidiary is owned and controlled by its parent when the parent owns at least 80%; should there be a similar supermajority standard?

Posted By : Howard Wasserman

NFLPA Sends Stern Message to NFL Commish

Message posted on : 2007-05-30 - 08:05:00

In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.

Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:
The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''
This is a great strategic move by the NFLPA. And the timing of it couldn't be better as Goodell is currently contemplating Pacman's appeal as well as the disciplinary sanction to impose upon Bears' lineman Tank Johnson who met with the commissioner two weeks ago. David Haugh of the Chicago Tribune recently wrote an excellent piece explaining in legal terms (with my assistance) why Tank, or any other player for that matter, has virtually no chance whatsoever of having his suspension reduced by any judge in a court of law ("Tank released - with a catch"). Haugh interviewed Dan Jiggetts, a former Bear well-versed in labor issues from his time as NFLPA vice president, who couldn't have said it any better when he applauded Goodell's intentions but cautioned that a clearer line should exist between improving the game and impinging on players' rights: "It's one thing that he's trying to clean up the league and everybody understands that, but he can't be making unilateral decisions."

At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.

Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).

It will be interesting to see how Goodell reacts going forward. Any predictions?

Posted By : Rick Karcher

Hancock v. Mike Shannon's Steaks and Seafood

Message posted on : 2007-05-29 - 12:23:00

The title is the caption to a lawsuit filed last week in Missouri state court by Dean Hancock, the father of St. Louis Cardinals reliever Josh Hancock and the executor of Josh's estate. Josh was killed in a car accident April 29 when the rented SUV he was driving slammed into the back of a stopped tow truck in the left lane of a multi-lane highway in St. Louis. Hancock had left one bar (Mike Shannon's) and was on his way to a second bar to meet his girlfriend. Reports indicate Hancock had a blood-alcohol level of 0.157, was traveling above the posted speed limit, and talking to his girlfriend on his cell phone when the crash occurred. Stories on the accident and the lawsuit here, here, and here. A copy of the complaint can be downloaded about halfway down in this story.

There are three basic claims in the lawsuit. The first, against Mike Shannon's restaurant/bar and Patricia Shannon Van Matre, the manager of the bar, seeks damages under Missouri's dram shop law. The claim is that Hancock, a regular at the bar, spent approximately 3 1/2 hours drinking there on the night in question and became visibly intoxicated, but the restaurant continued to serve him drinks anyway. The second claim alleges negligence against the tow truck company and the tow-truck operator, claiming that the driver was negligent in stopping in the left lane of the highway and keeping the truck (and stalled car) there for a lengthy period of time, without providing adequate warning to motorists, such as flashing lights or flares. The third claim alleges negligence of against Justin Tolar, the driver of the stalled car that the tow truck had stopped to help. Tolar's car had struck the median, spun out, and stalled in the left lane of the highway.

The dram shop claim is the focal point of the suit, the one that has received the most attention, the most unique claim, and likely the most difficult to prove. Missouri's law, amended in 2002, permits liability when it is "proven by clear and convincing evidence that the seller . . . knowingly served intoxicating liquor to a visibly intoxicated person." Mo. Rev. Stat. § 537.053(2). "Visibly intoxicated" means "inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction." § 537.053(3). A high BAC is evidence of voluntarily intoxication, but cannot alone establish the fact. Moreover, the law expressly prohibits recovery for injuries resulting from one's own voluntary intoxication. § 537.053(4). This presumably means the law permits third-party liability against a bar (A is injured by B's drunk driving, sues the bar at which B got drunk), but not first-party liability (A is injured as a result of his own drunk driving, sues the bar at which he voluntarily drank and got drunk). A good discussion of the history of dram-shop liability and of Missouri's new law is here.

The fact that the law seems to disallow first-party dram-shop liability probably defeats this claim at the start. The prior version of Missouri's dram shop law was held to allow first-party claims, although that statute required only that the "intoxicating liquor is the proximate cause of the personal injury or death sustained by such person." The explicit prohibition on claims involving voluntary intoxication should command a different result in the typical first-party claim such as this--someone willingly goes to a bar, drinks, gets drunk, and is injured.

The complaint tries to get around the voluntary intoxication language by alleging that Hancock's intoxication was involuntary, thus not within the statutory exception. But I am not sure how this can be the case. In general, one can be said to be involuntarily intoxicated only when a person did not knowingly consume the intoxicating substance (i.e., someone slipped him a Mickey). No one suggests that is what happened here. My speculation is that the plaintiff rests on some notion that the bartenders at Shannon's continued to give Hancock drinks beyond the point that he was (or could be) aware that he was drinking and getting drunker; so even if he went to the bar voluntarily and even if he initially voluntarily consumed alcohol, at some point he was drinking and getting drunk not of his own volition. I doubt this works as a matter of law. Moreover, even if Hancock clears that hurdle, he must put together a lot of evidence (more than the ordinary civil standard of more-likely-than-not) that Josh exhibited signs, visible and obvious to Shannon's bartenders and staff, of physical dysfunction caused by alcohol consumption. The spiked BAC will not be enough.

The negligence claims against the tow-truck company and driver and against the stalled motorist sound like something from a torts exam. Still, neither claim seems beyond the pale. If the motorist was negligent in hitting the median and stalling his car out, then he may (and should) be responsible for resulting injuries to any other driver on the road. Imagine that Tolar, driving negligently, had bounced off the median and struck Hancock's car as it came immediately behind him; no one would question that Tolar might be liable. The only difference here is that Hancock did not come upon Tolar's car until 20 minutes later. But the principle--Tolar drove negligently and contributed to the injuries to another driver--remains the same. Similarly, the tow truck driver/company were obligated to conduct themselves in a careful manner--specifically by either moving the car out of the traffic lane or providing warnings to motorists.

What sets this situation apart--and what has some commentators screaming about frivolous lawsuits, the out-of-control tort system, and loss of personal responsibility (you have to page down a bit)--is everything that Josh did that contributed to the accident: He was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning. I especially liked Overlawyered's suggestions for other people Hancock should have sued, including the cell-phone manufacturer and the girlfriend.

But the tort system long ago moved to a regime of comparative negligence--a plaintiff's own negligence may reduce the amount he can recover from responsible defendants, but it does not necessarily eliminate all recovery (unless the plaintiff is more responsible for the accident than the defendants). This contrasts with the old Common Law rule of contributory negligence, where any small amount of plaintiff negligence (just 1 %) precluded all recovery. So even if Hancock contributed to the accident by driving under the influence, so, too, perhaps, did Tolar's and the truck driver's behavior. The question now becomes how much each is responsible--and that is a question for the jury.

Moreover, comparative negligence is an affirmative defense--it is on the defendant(s) to introduce the issue, plead it, and to prove it. An affirmative defense is the defendant saying, in essence, "yes, what the defendant says happened did happen, but here is something that limits or eliminates my liability"(here, the plaintiff's own negligence). Right now, all we have is Hancock's Complaint--which (as I tell my civ pro students ad nauseum) is simply the plaintiff's best-foot-forward version of what happened that, for the moment, we take as true. We need to wait for more facts and evidence to come out. News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers. We are an "adversary" judicial system. Hancock has put forward his initial version of events; it now is (and should be) on the defendants to put forward their best legal and factual versions. Then we ultimately can figure out what happened and who was responsible.

My guess is that Hancock loses. The dram shop claim does not work as a matter of law, given the language of the amended statute precluding claims based on one's own voluntary intoxication. The negligence claims likely fail, since Hancock's own negligence seems to outweigh that of the motorist and the tow truck (although that one probably goes to a jury). But I disagree that it is so obvious, ab initio, that all of these claims are so laughably weak. Let the system play itself out.



Updates: Wednesday, May 30:

Some additions, explanations, and elaborations in response to e-mails and comments:

First and most important for the negligence claims: Missouri follows a "pure" comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable, the plaintiff still could recover 1 % of the harm he suffered. This contrasts with a "modified" comparative negligence system, in which the plaintiff is precluded from recovery (and his claim defeated) if his negligence reaches some point (either 50 % or 51 %, depending on the jurisdiction). In practical terms, that means Hancock's negligence claims simply will not simply be defeated (as I initially stated) because of Hancock's arguably greater responsibility. It also means the claims likely go to trial for jury determination. We must determine the facts as to what Tolar and the tow-truck driver did or did not do, because even a small amount of negligence would require one or both to pay a small amount of damages to the plaintiff (an amount reduced by Josh's own negligence). Unless all the evidence shows that, as a matter of law, neither Tolar nor the truck driver was negligent, a jury must measure out what portion of responsibility either bears.

Second, Professor Sheila Scheuerman, co-editor of Torts Prof Blog (who was kind enough to link to this post), had a good explanation for the visceral negative reaction many people have to this lawsuit: The problem is that the reductio summary of the suit--"father of dead drunk driver sues restaurant and others involved in crash"--runs counter to intuitive ideas about "justice." I think this is correct as an explanation for much of the public (and blogosphere) response. And it illustrates why we try so hard to get our students to step back from that initial, intuitive, empassioned reaction and to think through the entire issue with care and reason.

Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-05-29 - 10:47:00

Recently published scholarship includes:

Suzanne E. Eckes, Title IX and high school opportunities: issues of equity on and in the Court, 21 WISCONSIN WOMEN'S LAW JOURNAL 175 (2006)

Greg Egan, Student article, Sustained yield: how the dynamics of subsistence and sport hunting have affected enforcement and disposition of game violations and wounded Alaskan culture, 28 HAMLINE JOURNAL OF PUBLIC LAW & POLICY 609 (2007)

Haley K. Olsen-Acre, Student article, The use of drug testing to police sex and gender in the Olympic Games, 13 MICHIGAN JOURNAL OF GENDER & LAW 207 (2007)

Josephine R. Potuto, Academic misconduct, athletics academic support services, and the NCAA, 95 KENTUCKY LAW JOURNAL 447 (2006-2007)

Posted By : Geoffrey Rapp

A Good Lacrosse Weekend

Message posted on : 2007-05-29 - 07:25:00

A good weekend in our household for, of all sports, lacrosse--a sport that looks fun and interesting but that I do not quite understand (beyond the obvious objective).

On Sunday, Northwestern, my beloved alma mater, won its third straight NCAA Women's Lacrosse Championship. I now am on the hunt for a purple "Hat Trick" t-shirt to fit my 17-month-old daughter (whose first legal phrase will be "Title IX").

On Monday, Johns Hopkins, which was kind enough to pay for my wife's alma mater (my father-in-law is a faculty member at Hopkins), won the Men's Lacrosse Championship. Of course, Hopkins will most be remembered for depriving Duke of the storybook finish to its return from the depths of a canceled season in 2006.

Posted By : Howard Wasserman

The Attendance Value of The First Overall Pick in the NBA Draft

Message posted on : 2007-05-28 - 06:10:00

Over on his CNBC blog, Sports Biz, Darren Rovell has very good news for the Portland Trailblazers: over the last 11 years, the team that obtained the first overall pick in the NBA Draft enjoyed, on average, an 11.5% increase in attendance the following season. If that percentage holds true for the Trailblazers next season, the team should receive an additional $6.3 million in attendance revenue (Rovell's calculation takes into consideration incidental revenue, such as parking and concessions).

Rovell acknowledges the limitations of his methodology. The Washington Wizards, for instance, saw their attendance increase by 24% after drafting Kwame Brown with the first overall pick 2001 (they also picked up some guy named Michael Jordan--and Rovell dropped that year when calculating the 11.5% average). Moreover, the 11.5% figure is skewed favorably by three first overall picks--Lebron James, Tim Duncan, and Allen Iverson--while some of the other first overall picks--Kenyon Martin, Elton Brand, and Michael Olowokandi--didn't seem to have much of an impact on either wins or attendance.

But considering the hype and expected performance of Greg Oden, in addition to the Trailblazers' already impressive talent, it would seem that Paul Allen's franchise is primed for a successful and lucrative season ahead (and one that will only add to Allen's net worth of $18 billion).

Posted By : Michael McCann

Vindication or Unfairness in Last Night's NBA Draft Lottery?

Message posted on : 2007-05-23 - 12:07:00

Last night's NBA lottery was an abject disaster for the Memphis Grizzlies and Boston Celtics. The two teams with the worst NBA records last season had the best odds of landing one of the top two picks, which will be used on Greg Oden and Kevin Durant. But the "best odds" aren't the same thing as certainty, as the Grizzlies and Celtics only had a 48% chance and 37% chance, respectively, of landing one of those two picks.

And as you probably know, the Grizzlies won't be picking one and the Celtics won't be picking two. They will be picking fourth and fifth, respectively. And thus they will lose out on the two players who project as "franchise players," and instead draft among the left-overs. The Portland Trailblazers, which only had a 5% of landing the first pick, got really lucky (read all about it on True Hoop), as did the Seattle Supersonics, which will be picking second.

There are at least ways to view what happened last night.

One way is to say that there is a certain degree of justice in the lottery's outcome. The Grizzlies, Celtics, and Milwaukee Bucks were all accused of tanking games in their quest to get the most number of ping-pong balls. And yet they had the worst results last night, falling down in the draft as far as they possibly could under the lottery rules. Sure, there is probably 0% chance that Commissioner Stern or anyone at the NBA had anything to do with that, as an independent lottery firm performs the actual drawing of the balls. But those who were upset with the tanking may feel like there was some sort of vindication last night, even if the vindication resulted entirely from chance.

But Jerry West, President of the Memphis Grizzlies, has a different take on what happened last night. He sees profound injustice rather than coincidental vindication:
It's like pitching pennies. It's grossly unfair to the team, but I've said it before, I don't think the lottery is fair. I never liked it.

It's not sour grapes. I just think it's a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season.

There have been a lot of picks in the lottery that have (failed). There are two in the lottery this year that are not going to fail. There are two superstars in the draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.

West has a point. If the purpose of the NBA Draft is to redistribute talent in the most equitable manner, shouldn't the worst team get the best pick? Major League Baseball and the National Football League take that very approach, with the idea that the league product is enhanced when, at some point, every team has a genuine opportunity to become great through obtaining the best amateur talent. That idea hasn't worked in baseball because of the absence of a salary cap and because it's extremely hard to project the professional potential of amateur baseball players, but it seems to have worked pretty well in the NFL.

On the other hand, the NBA is likely worried that eliminating the lottery would give teams an even greater motivation to tank. But is that fear worth keeping teams like the Grizzlies and Celtics down for many years to come? Is the league product really better off with a weighted lottery, when Greg Oden and Kevin Durant don't go to the franchises most in need of their help? Should the sheer fortuity of how ping-pong balls come out of a machine really determine the fate of franchises for the next decade?

Posted By : Michael McCann

Tonight's NBA Draft Lottery: Will The Tanking Matter?

Message posted on : 2007-05-22 - 00:10:00

At 8:30 p.m. tonight, (Eastern Standard Time, ESPN), the NBA will conduct its draft lottery. It will determine the draft order of the 14 NBA teams that did not make this season's playoffs, as those teams will be assigned a pick between 1 and 14 in the 2007 NBA Draft, which will be held on June 28. We have examined this topic in great detail over the last couple of months, particularly in relation to NBA teams tanking, or purposefully losing games for more lottery balls.

However, as the Boston Globe photo from 1997 on the left reveals, sometimes tanking doesn't work out as planned: the photo is of a Boston Celtics fan, taken in April 1997, when the team purposefully lost games (as admitted by its former GM and head coach, M.L. Carr) in order to secure the worst record and thus the best chance to obtain the presumptive first pick, Tim Duncan. (thanks to Celtics Blog, the most popular blog devoted to any NBA team, and C's fan Daniel Babbit, for the photo). Just for good measure, check out The Sporting News cover from earlier this month on the right.

Here are our writings:


Posted By : Michael McCann

Yankee Stadium, God Bless America, and the First Amendment

Message posted on : 2007-05-18 - 23:52:00

Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during God Bless America during the Seventh Inning Stretch. I first discussed this issue here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments) here and here.

In the interest of shameless self-promotion: I have written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):

Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,� counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America� or may turn their backs to the flag during the anthem. Fans even may jeer one nation's anthem as it is being played as protest against that nation or its policies.


At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.

There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.

State Action or Action Under Color of Law

Are the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.

The strongest argument for state action is Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).

The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact, Burton was the basis for a district court holding in Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.

A second argument is based on the more-recent decision in Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with Brentwood may be how long the opinion survives--the Supreme Court this term heard oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.


First Amendment Principles

The next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

Posted By : Howard Wasserman

The Legal Process and Michael Vick

Message posted on : 2007-05-17 - 14:00:00

A few weeks ago, I blogged about Michael Vick's possible involvement in an illegal pit bull fighting ring at a home he owns in Smithfield, Virginia, and how the NFL might react. Over on East Coast Bias, attorney Jason Reddish has a thoughtful post that defends the unwillingness of Surry County (VA) Commonwealth Attorney Gerald Poindexter to charge Vick, despite pressure from the media and from Kathy Strouse, the animal control coordinator for Chesapeake, Virginia, to do so. Here is an excerpt from Jason's piece:
Ms. Strouse, apparently, has learned nothing about the judicial process from the missteps in Durham and other places. Rather than allowing Mr. Poindexter to properly develop the case and serve the interests of the people of Surry County and the Commonwealth of Virginia, she wants a public spectacle and a premature indictment. I applaud Mr. Poindexter for the poise and diligence which he has displayed in this investigation.

There's a reason attorneys handle prosecutions rather than dog catchers. I hope the national media respects Mr. Poindexter's investigation rather than latching on to Ms. Strouse's inflammatory comments.
For the rest of the article, click here.

Posted By : Michael McCann

NBA Rules and Legal Formalism

Message posted on : 2007-05-16 - 11:00:00

A couple of interesting posts and comments from Michael Dorf at DorfOnLaw about the suspensions of the Spurs' Robert Horry and the Suns' Amare Stoudemire and Boris Diaw over the "altercation" in Game 4 of the Phoenix-San Antonio series.

The issue is how the NBA's rules against leaving the bench, and Stu Jackson's decision to suspend Stoudemire and Diaw for doing so (or almost doing so, since neither actually made it to the fray but quickly jumped back off the court), reflects ancient debates about legal formalism; the advantages and disadvantages of relying on hard legal rules as opposed to more flexible legal standards; and the idea of law v. morality (or justness, if you will). There also is some interesting lawyering going on among Suns backers: The argument has been made that the rule against leaving the bench to join an altercation was not triggered in this situation, because what happened on the court (Horry's hip-check of Nash) was not an altercation. It did not carry the day, obviously, but a cute argument.

Worth a read.

Posted By : Howard Wasserman

Quick Programming Note

Message posted on : 2007-05-15 - 17:23:00

I will be a guest on Bo Bounds' radio show tomorrow morning on WSFZ-SuperSport 930 AM from 8:07 to 8:20 a.m. central time. It can be heard live at this link. Bounds recently interviewed Red Sox closer Jonathan Papelbon and Cleveland Indian left fielder David Dellucci, so I will have some big shoes to fill. It should fun and we will discuss various sports law issues. I hope you get the chance to listen.
Posted By : Michael McCann

Recent Sports Law Scholarship

Message posted on : 2007-05-15 - 10:08:00

New sports law scholarship over the past few weeks:
Hector Del Cid, Winning at all costs: Can Major League Baseball's new drug policy deter kids from steroids and maintain the integrity of the game?, 14 SPORTS LAWYERS JOURNAL 169 (2007)

Marc J. Dobberstein, Student article, “Give me the ball, Coach�: a scouting report on the liability of high schools and coaches for injuries to high school pitchers' arms, 14 SPORTS LAWYERS JOURNAL 49 (2007)

Kara Fratto, The taxation of professional U.S. athletes in both the United States and Canada, 14 SPORTS LAWYERS JOURNAL 29 (2007)

Jonathan B. Goldberg, Student article. No tying in football? Re-examining the sale of NFL tickets, 14 SPORTS LAWYERS JOURNAL 1 (2007)

Jonathan Gonzalez, Trademark goodwill, brand devaluation, and the neo-political correctness of college athletics: did Marquette's recent identity crisis cost them thousands or even millions of dollars in brand value?, 14 SPORTS LAWYERS JOURNAL 195 (2007)

Allan M. Johnson, Student article, The right of publicity gets left out in CBC Distribution, 14 SPORTS LAWYERS JOURNAL 71 (2007)

David W. Penn, Note, From Bosman to Simutenkov: the application of non-discrimination principles to non-EU nationals in European sports, 30 SUFFOLK TRANSNATIONAL LAW REVIEW 203 (2006)

Jude D. Schmit, Student article, A fresh set of downs? Why recent modifications to the Bowl Championship Series still draw a flag under the Sherman Act, 14 SPORTS LAWYERS JOURNAL 219 (2007)

Yael Lee Aura Shy, Student article, “Like any other girl�: male-to-female transsexuals and professional sports, 14 SPORTS LAWYERS JOURNAL 95 (2007)

Kelley Tiffany, Cheering speech at state university athletic events: how do you regulate bad spectator sportsmanship?, 14 SPORTS LAWYERS JOURNALS 111 (2007)

Frank P. Tiscione, Student article, College athletics and workers' compensation: why the courts get it wrong in denying student-athletes workers' compensation benefits when they get injured, 14 SPORTS LAWYERS JOURNAL 137 (2007)

Posted By : Geoffrey Rapp

Should Fantasy League Operators Pay Licensing Fees?

Message posted on : 2007-05-14 - 17:12:00

Last August, U.S. District Court Judge Mary Ann Medler ruled that players have no right of publicity in their names and playing records when used by commercial fantasy league operators without a license. MLB and the MLBPA have filed an appeal to the Eighth Circuit Court of Appeals and oral argument is now scheduled for June 14th (exactly one month from today). Fantasy league operators, including Yahoo!, ESPN and CBS Sportsline, currently pay the union a license fee between two and three million dollars. According to Sports Business Journal, a license for FoxSports.com was negotiated last summer as part of Fox's new TV deal with baseball, but the online outlet is waiting for the outcome of the case before electing whether to pay the fee. SBJ also reported that the MLBPA has recently sent cease-and-desist letters to a collection of smaller fantasy game operators. Needless to say, the outcome of this lawsuit has huge ramifications on right of publicity tort law, and not just specifically related to the fantasy league industry. On Friday morning, I will be moderating a panel on this topic at the Sports Lawyers Association 33rd Annual Conference that includes Judy Heeter, Director of Business Affairs and Licensing for the MLBPA, and Tonia Ouellette Klausner, counsel to the Fantasy Sports Trade Association.

In my recent law review article, The Use of Players' Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, I critique the district court's ruling and discuss how right of publicity claims can be viewed on a spectrum of commercial advantage. On one end of the spectrum, there are certain uses of identities that do not constitute a violation of the right of publicity because (although the use may generate economic gain to the user) the use has social value that is protected by the First Amendment making the commercial gain aspect secondary; those uses being for news reporting purposes, literary purposes (i.e. book writing, magazine articles) and expression purposes (i.e. art, parody, etc.). On the other end, there are certain uses that nobody would dispute constitute a violation because the primary use is for commercial gain; those uses being for advertisement, endorsement and marketing purposes. There are uses that fall somewhere in between these two ends, and I refer to these as "quasi-commercial" uses -- fantasy leagues, sports trading cards and video games to name just a few.

Fantasy league use, like trading card use, without a license has been held to violate the players' right of publicity. For example, in Uhlaender v. Henricksen, 316 F.Supp. 1277 (D.Minn. 1970), the court held that the defendants, which manufactured and sold without a license fantasy sports league table games that employed the names and performance statistics of major league baseball players identified by team, uniform number, playing position and otherwise, violated the players' right of publicity. The Uhlaender court properly rejected the "public domain" rationale, and also provided the policy rationale for why a right of publicity should be recognized in the context of fantasy league use:

A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other personal characteristics, is the fruit of his labors and is a type of property. Defendants' contention has no merit that by the publication in the news media and because of the ready availability to anyone of the names and statistical information concerning the players, such information is in the public domain and the players thus have waived their rights to relief in this case. Such argument may or may not have some weight against a right of privacy claim, but in an appropriation action such as in the case at bar the names and statistics are valuable only because of their past public disclosure,
publicity and circulation. A name is commercially valuable as an endorsement of a product or for use for financial gain only because the public recognizes it and attributes good will and feats of skill and accomplishments of one sort or another to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action, for only disclosure and public acceptance does the name of a celebrity have any value at all to make its unauthorized use enjoinable. (emphasis added). Id. at 1282, 1283.

However, last summer Judge Mary Ann Medler was convinced that the players don't have a right of publicity because their names and performance statistics are in the public domain. But saying it's in the public domain only begs the question as to whether there is a violation of the right of publicity, it doesn't answer it. In other words, professional athletes are, by definition, in the public domain by virtue of being professional athletes. That doesn't mean Nike can use Tiger Woods without a license.

Was the Uhlaender case wrongly decided back in 1970? Or, does the fact that fantasy league games are now sold on the internet, as opposed to a tangible board game in a box, somehow change the outcome? If so, why? The only difference is that the internet has turned fantasy leagues into a $2 billion industry and, if anything, made it even more "commercial". Salaries of professional athletes have definitely increased over this 37 year period, but that doesn't provide any legal basis whatsoever, or even a policy rationale, for denying the players' claim.

Fantasy league operators, like trading card and video game manufacturers, sell a consumer product using players' names and statistics. Consumers are purchasing these products solely because they contain the players' names, likenesses and performance statistics. In other words, these products simply do not sell without their use. Shouldn't the players be compensated? If the Eighth Circuit affirms the district court ruling, would it mean that Topps and EA Sports could also produce their products without purchasing a license?

Posted By : Rick Karcher

Valuing Loyalty & Situation: Tim Wakefield and The Reserve Clause

Message posted on : 2007-05-14 - 14:39:00

Red Sox starting pitcher Tim Wakefield is off to a fantastic start this season, his 13th with the Sox. The 40-year-old knuckleballer leads the American League with 1.73 Earned Run Average. Operating on a one-year contract, he would seem well poised to have a great free agent season.

But Tim Wakefield won't become a free agent after the 2007 season--unless the Red Sox let him, that is. See, in April 2005, Wakefield agreed to a one-year, $4 million contract extension that included a perpetual team option for one-year, $4 million. In other words, the Sox can keep Wakefield for as long as they want (assuming he wants to keep playing baseball), and the team can revisit that decision every year, provided they are willing to pay him $4 million for the next year. If the Sox decline to extend his contract, they don't even owe him a buyout. It should be noted that Wakefield's annual salary does contain several incentive clauses: he receives an additional $50,000 for each start between 11 and 20, and $75,000 for each start between 21 and 30; he can conceivably make up to $5.25 million--still a far cry from the annual base salaries for pitchers like Roger Clemens ($28 million), Barry Zito ($18 million), and Andy Pettitte ($16 million).

Wakefield's contract is essentially a throw-back to an era before Curt Flood sued Major League Baseball in the historic antitrust case Flood v. Kuhn, 401 U.S. 258 (1972). The case arose after then MLB Commissioner Bowie Kuhn rejected Flood's written request that the reserve clause, which was standard in baseball contracts and allowed teams to retain the rights of players after their contracts expired, should not apply to his employment. Here was Flood's famous letter to Kuhn, in which he likened himself to being treated like a piece of property:
December 24, 1969
After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.
It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season.
Unfortunately for Flood, the U.S. Supreme Court ruled 5-3 in favor of Major League Baseball. The Court upheld Major League Baseball's antitrust exemption (as detailed in Federal Baseball Club v. National League, 259 U.S. 200 (1922)) and, through stare decisis, reasoned that changing the exemption is a matter for legislative, not judicial, resolution. But Flood's loss became other players' gain, as Marvin Miller led the MLBPA to successfully demand from the owners the ability to obtain free agency.

This past March, Rany Jazayerli of Baseball Prospectus argued that Wakefield's contract was the worst contract in baseball. By implication, his analysis suggests that Wakefield's contract may be considered a disservice to other players and perhaps even a repudiation of the legacies of Flood and Miller et al.:
[Wakefield's contract] was signed less than two years ago, on April 19th, 2005, by a veteran pitcher who had already made his millions, and who was a free agent at the time. This pitcher, who was about to complete a three-year deal that paid him a little north of $13 million, agreed to a one-year extension worth 4 million dollars--a one-year deal, and a pay-cut, even though said pitcher had just gone 12-10 with a league-average ERA the year before. At the time he signed the extension, he had started the new season 2-0 with a 1.37 ERA; he would finish 16-12 with a 4.15 ERA ...

Then keep in mind that this pitcher had gone 22-12 the two years before that, with ERAs of 4.09 and 2.81 (the latter was 4th-best in the league). This pitcher was in his 13th major-league season and had never suffered a significant arm injury.

To the best of my knowledge, since the dawn of free agency, no player has signed a comparable contract ... We used to have a term for this type of contract in the annals of baseball history. What was it…oh yeah, we called it the Reserve Clause.
But let's look at the contract from Wakefield's perspective. First consider loyalty (a topic that I examined from a scholarly perspective in my Brooklyn Law Review article "It's Not About the Money"). It can be argued that without the Red Sox, Tim Wakefield's baseball career would have ended in 1995. At that time, he was 28-years-old and coming off a disastrous season for Triple A Buffalo in which he had a 5-15 record, a 5.84 ERA, more walks (98) than strikeouts (83), and 27 home runs given up--worst in Triple A. Sure, he was the National League Rookie of the Year in 1992 for the Pittsburgh Pirates, but that was three years earlier; in the interim, he had devolved into one of the worst pitchers in Triple A, and was seemingly destined for another profession--especially after the Pirates unceremoniously released him on April 20, 1995.

But former Red Sox general manager Dan Duquette had a different idea. Six days after the Pirates released Wakefield, Duquette signed Wakefield to a minor-league contract and hired Hall of Fame kunckleballer Phil Niekro to work with him.

Wakefield proceeded to pitch extremely well for the Sox' Triple A team in Pawtucket, and was then promoted to Boston--and hasn't look back since. In that 1995 season, Wakefield finished with a 16-8 record, along with a 2.95 ERA, and he was essential to the Sox winning a division title. He also won the AL's comeback player of the year award and finished third in the A.L. Cy Young Award balloting. Since that extraordinary comeback season, Wakefield has been a mainstay in the Sox rotation, and has even pitched out the bullpen when asked. For a guy who was probably close to leaving baseball at age 28, Wakefield almost certainly feels a deep gratitude to the organization that may have saved his baseball career and extended it at least 12 additional years. That has to count for something.

Wakefield also seems to appreciate the situation of playing for the Sox. The team's longest-serving active member, Wakefield is perhaps also its most popular member and seems to thrive living in Boston. He married a woman from Boston and is very close friends with a number of his teammates, including Mike Timlin, with whom he regularly hunts (see photo of Wakefield with his bow and arrow, with Timlin in the background). Put more bluntly, he's got a great gig playing for the Sox and living in Boston. Perhaps that is why he engaged in the following conversation with his agent, Barry Meister, in 2005:
Wakefield's agent, Barry Meister, told the knuckleballer during this past offseason that, given age and productivity, he might command $6 million from some club at the end of the season.

"He said, `Is that club the Red Sox?' " Meister said. "I said, `No, might not be.' He said, `If you said the Red Sox, that's one thing.'

"He waved me off and said, `Money is important, but it's kind of down the list for me. My desire is to be in Boston and be a Red Sox. That's just who I am now.' "

But did Wakefield owe a duty to other players to not take a contract with a perpetual team option? We considered players' implied contractual duties to the MLBPA when we examined how the MLBPA pressured Washington Nationals' closer Chad Cordero to turn down a two-year contract offer, and Rick has written extensively about the related topic of using unions to negotiate contracts for players. And we know that three decades ago, many players and union lawyers fought hard against the very type of contract Wakefield signed. Has Wakefield been disloyal to the players' association as a price for being loyal to his employer, and how should we regard that?

Or should we applaud Tim Wakefield for not putting money first and instead putting his loyalty and situation ahead? Who are we--and who is the MLBPA and its members--to question what a player considers "valuable"?

Posted By : Michael McCann

Birthistle on World Cup Officiating

Message posted on : 2007-05-14 - 11:50:00

Professor William Birdthistle of Chicago-Kent College of Law is guest-blogging at The Volokh Conspiracy on his new article, Football Most Foul, in the Green Bag. The article criticizes the officiating in the 2006 World Cup, arguing that it, more than player performance, determined the outcomes of too many games, and explores ways to reduce the power that officials wield.

His first post is here. Check back at the VC over the coming days to read more.

Posted By : Howard Wasserman

Manhattanville College Symposium on Best Practices in Sports Business

Message posted on : 2007-05-12 - 12:42:00

On Saturday, May 19, the Center for Ethics in Sports at Manhattanville College (CESAM) will host its First Annual Symposium on Best Practices in the Sports Business World. Among the speakers is Attorney Marc Edelman, who runs Sports Judge, the fantasy sports dispute resolution service that I blogged about in January.

The Symposium will be open to the public and will be held in Reid Castle on Manhattanville College's campus in Purchase, New York (directions available here). Registration starts at 10:00 a.m., followed by brief introductory remarks. Here are details on the panels:

10:30 a.m. - 12:00 p.m. "Staying on the High Road in Negotiations"

What is the art of the fair deal? Can you always maintain full integrity in all negotiations settings? Our panel will delve into these issues and more. Scenarios of peaks and shortfalls on the high road in negotiations will be discussed. Whether one works for athletes, teams, or leagues, the session will stimulate and provoke thoughts. Questions & Answers will be taken through a moderator from attendees.

Panelists:
Marc Edelman (attorney and sports judge)
Art Wiess (attorney and NFL agent to Wayne Chrebet and others)
David Burke (general manager of the Hudson Valley Renegades)
Richard Grayso (attorney)

12:15pm-1:15pm Networking Luncheon & Honors Presentation

Gus Al�eri, the biographer for Joe Lapchick, will discuss the NCAA Lapchick Character Award, which was bestowed on several student-athletes at 2006 Final Four. Lapchick, who played for the Original (New York) Celtics in the 1920s and 1930s, coached St. John's University's men's basketball team to an NIT title in 1959. His son Richard Lapchick is a prominent commentator on sports and race issues.

Posted By : Michael McCann

Forcing Patriotism at Yankee Stadium

Message posted on : 2007-05-10 - 23:50:00

Thursday's New York Times reports that at Yankee Stadium, fans are not permitted to leave their seats when God Bless America is played during the Seventh Inning Stretch. Chains block the aisles and ushers face the crowd and order people to stop moving while the song is played. The story's lede captures it: "The most patriotic moments at Yankee Stadium can also be the most confining."

I will talk about what I think are the free speech problems here when I have a chance. For now, let me link to and endorse the comments from Deadspin: God Bless America is a bad song; it cannot hold a candle to America, the Beautiful (I am partial to the Ray Charles version myself); it has no place at the Seventh Inning Stretch; and I always to get to games early so I can remove my hat and sing the Star Spangled Banner before the game, so it is not that I simply dislike all patriotic symbolism and ritual.

More on this to come, I think.

Posted By : Howard Wasserman

Guilt by Irresponsibility or Guilt by Association? Steve McNair Arrested for DUI by Consent

Message posted on : 2007-05-10 - 15:29:00

Baltimore Ravens quarterback Steve McNair was arrested late yesterday in Nashville, Tenn., on a driving under the influence by consent charge. He was a passenger in his silver 2003 Dodge pickup truck, which was being driven by his brother-in-law. There is no evidence that McNair himself was intoxicated or even had any alcohol in him, as that doesn't matter with a DUI by consent charge: all that matters is the driver of the car was impaired, and that the owner of the car allowed the driver to drive the car; if so, the owner of the vehicle can also be charged with DUI, even if he isn't in the car. An increasing minority of states have this law or something similar (e.g., "aid and abet DWI" in North Carolina), and unfortunately for McNair, Tennessee is one of those states.

Rick Maese of the Baltimore Sun has an excellent column today on McNair's arrest and relates it to public reaction to Josh Hancock's death and the NFL's new discipline policy. I was interviewed for the column, and here are some excerpts:
Today we're swimming in that gray area, where you may not agree with a murky Tennessee law, where you don't know if there's a definite right and a definite wrong, and where we have no idea how the NFL will respond. With its new player conduct policy, the league has hinted that it might not see different shades in its black-and-white world.

This is made all the more difficult because sport is built within boundaries, rules and scores. Everything is measurable, the drama usually confined to a two- or three-hour block of time. But as more athletes do their in-town traveling via the back seat of a police car, there's no instant summation or clear-cut understanding.

"It's so easy to jump at the first facts," says Michael McCann, an assistant professor at the Mississippi College School of Law who runs sports-law.blogspot.com. "We're moved by the tragedy or the initial news report."

McNair's alleged infraction -- riding shotgun in a car he owned while the driver was allegedly drunk -- violated what McCann termed an "unusual law." As certain states strive to "get tough" and "crack down," they've lengthened the reach of accountability. In civil cases, you choke on food and skip over the line cook to sue the restaurant chain. And in criminal cases, authorities stretch liability as far as they can to discourage recklessness, and in theory, save lives.

"This is a law that's very scrutinizing of those who own cars and very protective of others on the road, the bystanders," McCann says. "It's built around public safety. It is your car, and there's certain expectation that you'll be responsible with it. It certainly raises the ante a bit."

If the facts come out and McNair knowingly allowed someone under the influence to get behind the wheel, he'd probably be guilty of pretty bad judgment. Did he break a law? Did he endanger others? It's foolish to even try inferring definitive answers today.

After all, the first thing to hit newsprint often only hints at the bigger truth. In this case, we're talking about "McNair charged a second time with DUI" -- even though he wasn't convicted the first time and last night's alleged infraction sure has the makings of something that will be contested.

The full story is usually too complex to fit on ESPN's crawl. As a news item, it has the movement of a knuckleball and we don't know the direction. Similar to when a stripper accused lacrosse players of sexual assault. Or to when we lionized a likable young pitcher who was killed in a car accident.

One and a half weeks ago, Josh Hancock, of the St. Louis Cardinals, died after running his Ford Explorer into a parked tow truck. Initial news reports praised Hancock and mostly ignored the unanswered questions. We later learned there was much more to the story, and that Hancock had a blood-alcohol level nearly double the legal limit.

"He went from being a hero to someone who we were suddenly skeptical of," McCann says. "I think certainly we need to be cautious until all of the facts come out. Whenever we react immediately, we're missing facts and context to the story."

This brings us to the NFL commissioner's office, which just last month issued a new conduct policy for its players, a set of vague zero-tolerance guidelines that would benefit from heeding the same warning as fans: When it comes to doling out punishment and deciding complicity, the smart area is somewhere between hard and fast and weak and slow. It's the gray area.
For the rest of the column, click here.

Posted By : Michael McCann

What does it take to be a sports agent?

Message posted on : 2007-05-09 - 09:05:00

Jeff Rabjohns and Mark Alesia of the Indianapolis Star have an interesting piece today evaluating Greg Oden's announcement yesterday that he hired Mike Conley, Sr. as his agent to represent him in contract negotiations ("Transition game: Oden's mentor becomes partner").

So who is Mike Conley, Sr. (pictured at right)?
  • He is the father of Oden's high school and college teammate, Mike Conley, Jr.
  • He is a three-time Olympian and former Olympic gold medalist in the triple jump
  • He has coached summer basketball teams to six AAU national titles
  • He is executive director of World Sport Chicago, a group aiming to land the 2016 Olympics for Chicago
  • He spent seven years as executive director of Elite Athlete Programs for USA Track & Field, where he oversaw the agent program and wrote the agent handbook
  • He established the Professional Athletics Association for track and field athletes.
And yesterday he became a partner with Oden in an eight figure business. But what Conley IS NOT, is an experienced agent. As noted in the story, "One of the most talked-about rookies in NBA history, represented by a rookie NBA agent." Mark Alesia interviewed me for the story, and we had a very interesting discussion about what it takes to be a sports agent.

The answer to the question of what it takes to be a sports agent is simply to be certified as an agent with the players association and to have a client. The more difficult question to answer is, how does a player entering the draft make a properly informed decision in selecting an agent? I discuss this issue in depth in my law review article, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players. When you think about it, you have an amateur player who is below the legal drinking age, but he's expected to make one of the most important decisions of his life in selecting a fiduciary to look after his best interests in a multi-million dollar enterprise based solely upon interviews with people he has never been associated with or even met before. An interesting tidbit of information is that, if Oden was a football player, Conley would probably not be certified by the NFLPA because Conley has not received a post-graduate degree (as required by the NFLPA agent regulations).

A player in Oden's position is heavily solicited by dozens of agents influenced by dollar signs and is offered all sorts of promises and inducements. The concern is that the player is being unduly influenced by agents in the selection process. Conley is actually serving as a "buffer" in alleviating that concern. While players tend to make their decision based upon such factors as the agent's experience and who the agent represents, these definitely should not be the only factors. Oden chose somebody he has known for years and obviously trusts a great deal, both important factors. As I told Alesia, I think the fact that Oden decided not to just go with a high profile agency with a "show me the money" attitude reflects favorably upon his character.

The fact of the matter is that Oden is most likely the number one or two pick in the draft (I'm "projecting" number one). He probably feels, and rightfully so, that whoever represents him as his agent is not going to impact which team selects him in the June 28 draft. Also, with rookie scale contracts in the NBA, there is not a whole lot of room for negotiation. Is the agent worth the standard 4% commission under these circumstances? In my law review article, I mention how these factors have decreased the utility of an agent in contract negotiations. Conley's new agency, MAC Management Group, will become partners with BDA Sports Management, an experienced agency that represents NBA players. Conley's company will handle Oden's NBA contract and turn to BDA for help on endorsements and marketing.

Oden has chosen a similar model used by LeBron James, which seems to have worked for LeBron, in which Conley will essentially outsource the endorsement and financial planning services needed by Oden. In my law review article, this is the model I advocate for unions to adopt by which players would have the option to have a union-employed person handle the individual contract negotiations and oversee the outsourcing of other services to third parties. Obviously, the third-party agents currently advising all of these players have no interest in that happening whatsoever, so I'm sure agents will not be discussing such a possibility with their players anytime soon.

Posted By : Rick Karcher

WAKA v. DCKickball: A Claim Worth Kicking Aside?

Message posted on : 2007-05-08 - 10:20:00

In March 2006, I blogged about WAKA LLC v. DCKickball et al. (E.D. Va. May 30, 2006), a federal lawsuit brought by the founders of the World Adult Kickball Association ("WAKA") that asks for $356,000 in damages from rival DCKickball. WAKA's basic claim is that DCkickball infringed upon WAKA's copyright by engaging in "unauthorized use" of two of WAKA's kickball rules. Before evaluating the claim--which remains without a trial date--let's first discuss the parties.

WAKA, which was founded in 1998, is the largest sanctioning body for adult kickball in the United States. It features tens of thousands of members and teams across 23 states and in India. It has also been credited with "the popularization of the children's game as a recreational and social activity among adults."

In contrast, the upstart DCKickball started just a couple of years ago. While growing in popularity, it features several hundred players, all of whom play in Washington D.C.

Keep in mind an obvious point about adult kickball: players in these leagues are not professional athletes; they pay a registration fee to participate in a recreational sport. Along those lines, the main purpose of these leagues--which are co-ed and primarily feature persons in their 20s and early 30s--is a social one. DCKickball has many photos of off-field social events, such as the one to the right, evidencing this point and it expressly notes it in its Q/A:

5. Is this a serious league?

God, I hope not. Maybe about drinking. The focus of DCKickball, from the beginning, is about meeting people, having fun, and not taking things too seriously. But it's pretty much up to everyone involved to contribute to this attitude. If you encounter anyone who isn't into this, please tell them to chill-out. It's just kickball, people.

So if it is just a bunch 20-somethings having fun playing kickball and hanging out at parties, why would their leagues sue each other?

WAKA claims that it enjoys copyright protection in its game rules and that DCKickball stole two of those rules: 1) the "clearly unique requirement that there be 4 men AND 4 women at a minimum to play" and 2) a 21-year old age floor for play. WAKA now seeks $356,000 in compensatory and punitive damages. WAKA bases its claims on the originality of its league and rules: while the four men who started WAKA acknowledge that they did not invent kickball, they assert that they were the first to start "social adult kickball" and to come up with its rules.

M.S. Enkoji of the Sacramento Bee just published an excellent article on the growing popularity of kickball, and she includes discussion of this lawsuit. Along with a number of other persons, I was interviewed by Enkoji, and I discuss the lawsuit. Here is the legal discussion found in Enkoji's piece:
But the very uncomplicated game of kicking a big red ball and rounding the bases -- think softball without the bats -- has become a federal case. WAKA has sued another kickball league, DCKickball, in U.S. District Court in Alexandria, Va., claiming "copyright infringement." WAKA is claiming that when former members broke off to form the second league, they stole WAKA's unique rules. Neither side will talk about the lawsuit.

"They think all of a sudden they created kickball? It's kickball," said Michael Murphy, general manager of the Golden Gate Sport and Social Club in San Francisco. "You roll the ball; someone kicks the ball," he said, explaining the basic rules of the game his organization also offers. "It's a free country." The San Francisco club, which has not been sued by WAKA, is part of a multi-sport national organization that started 12 years by some Chicago women interested in co-ed football.

"It's hard to believe that people would go to court over this," said Michael McCann, an assistant professor who specializes in sports law at the Mississippi College School of Law. "The notion that they own a sport, that's just crazy." McCann said the suit boils down to a complicated legal point that will be tough to prove. No one owns the mechanics of the game, just as baseball and basketball aren't owned, he said. But the way certain rules are "expressed" or used, such as requiring at least four women and four men on each team, could possibly be a copyright issue, he said.

So while WAKA can likely establish that it enjoys copyright protection in how it expresses a rule, it is very unlikely that it can establish ownership in the mechanics of that rule. John Marshall law professor William Ford, who blogs on Empirical Legal Studies, similarly noted this in response to my post last year:
You are free to copy the method of play, but you need to express it in your own words (or in words in the public domain) . . . The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine . . . WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic.
Aside from its intellectual property dynamics, this lawsuit can also be viewed from a competition/antitrust perspective. In that vein, one might argue that it is an attempt by the much better financed WAKA to raise DCKickball's expenses and put it - WAKA's major competitor in DC - out of business. Whether that is true or not is unclear.

We'll keep you updated on WAKA LLC v. DCKickball et al. For a thoughtful response from a DCKickball player, see Martin Austermuhle's post on DCist.

Posted By : Michael McCann

The Abbreviated One-Year Contract Strategy: Roger Clemens signs with New York Yankees

Message posted on : 2007-05-06 - 20:25:00

Red Sox fans received some discouraging news earlier today, when 44-year-old free agent pitcher Roger Clemens announced that he has agreed to a one-year, $28 million contract with the New York Yankees. The contract is prorated for the remainder of this season, meaning that Clemens will "only" earn $18 million (or about $4.5 million a month). The Red Sox apparently offered Clemens $10 million less than the Yankees, while the Houston Astros--the other team competing for his services--offered even less. In adding Clemens, the Yankees' 2007 player payroll will rise to about $218 million, the highest in baseball and a rather pricey sum for a team with a middling 14-15 record.

Clemens and his agent, Randy Hendricks (pictured to right), have employed a unique and apparently effective free agent negotiating strategy the past couple of seasons: wait until May or June (or whenever large market teams become unexpectedly desperate for pitching), create a bidding war between rival teams without having to compete against other marquee free agents for those teams' attention, sign a massive one-year contract, and then do it again the next year.

I'm not sure how many players could pull this strategy off, but it will be interesting to see if other star free agents try it in the future. Not only has it provided Clemens with a string of incredibly-lucrative one-year contracts, but it has enabled him to both avoid the wear-and-tear of spring training and considerably shorten his working year. It has also allowed him to obtain valuable employment perks, such as routinely being excused from traveling with the team and thus being able to spend more time with family. On the other hand, by using a one-year contract strategy, Clemens probably amplifies the risk of injury or under-performance on future earnings (although after a spectacular 23-year Major League career, I suspect that he has a decent chunk of change in the bank should either of those risks materialize).

Despite Clemens joining the Yankees, all is not lost for Sox fans. Buoyed by 40-year-old Curt Schilling, their team won today and now enjoys a 20-10 record, tops in the American League. Even better (perhaps, maybe), Jon Hanson and I published an article on The Situationist today entitled "Red Sox Magic." It examines the "faith" of Sox fans in their favorite team. Here is an excerpt:
But what about fans who merely wish ? Does wishing make a difference? And if not, why would they still wish? [Princeton University social psychologist Emily] Pronin's research, again, indicates that wishing satisfies our urge for control at those times when actual control over outcomes we care about is in short supply.

This phenomenon was certainly apparent in the buildup to Red Sox victory in 2004. Consider the classic thread “Win it For� on the popular Red Sox fan messageboard Sons of Sam Horn (also known as “SoSH,� of which principal owner John Henry and ace pitcher Curt Schilling are members). The thread was started by high school teacher and diehard Sox fan Shaun Kelly right before Game 7 of the Sox-Yankees American League Championship Series. By urging fellow fans to dedicate the game to “the special people in their lives who had loved the team through thick and thin,� Kelly hoped that he would create some “mojo� for the Sox. He concluded his message with . . .
We hope you read the rest of our article on The Situationist.

Posted By : Michael McCann

Connecticut May Become First State to Ban the Bullhook in Circuses

Message posted on : 2007-05-05 - 14:24:00

On a day when we celebrate the racing of horses in the Kentucky Derby, Connecticut lawmakers are debating whether to become the first state to ban the use of the bullhook, a tool used by circus employees to herd, control, and punish elephants. Circus officials claim that the bullhook is necessary to ensure that elephants behave correctly for the show. Animal rights activists claim that it tears, hurts, and scars elephants, as the bullhook features a steel hook designed to puncture the elephant's skin. It sounds painful, and according to the People for the Ethical Treatment of Animals (PETA), it is. Here is PETA's description of how the bullhook is used on the elephant's skin:
The thickness of an elephant's skin ranges from one inch across the back and hindquarters to paper-thin around the mouth and eyes, inside the ears, and at the anus. Their skin appears deceptively tough, but in reality it is so delicate that an elephant can feel the pain of an insect bite. A bullhook can easily inflict pain and injury on an elephant's sensitive skin. Trainers often embed the hook in the soft tissue behind the ears, inside the ear or mouth, in and around the anus, and in tender spots under the chin and around the feet.

San Jose, Calif., humane inspectors found that seven Ringling Bros. and Barnum & Bailey Circus elephants "had injuries behind or on the back of their left ears. Some of the elephants had scars behind their left ears. Almost all of the injuries appeared to be fresh, with bright red blood present at the wound sites."
Sponsored by State Rep. Diana Urban (pictured to right), the bill has already passed the Connecticut House Judiciary Committee. Of concern to circus fans and some businesses and policy-makers in Connecticut, Ringling Brothers has pledged to boycott the state if the bill becomes law, meaning that the nation's largest circus company would no longer host circuses in the Constitution State. The absence of those circuses would present economic consequences. Indeed, the annual economic loss of circuses not occurring in Bridgeport and Hartford --the state's most populous and third-most populous cities--project to be about $2.6 million, including $200,000 in state and local taxes and $400,000 in locally purchased supplies.

It's worth mentioning the context of this bill, as it has not come out of the blue. Not only are other states, such as Massachusetts, Rhode Island, and Nebraska, contemplating similar legislation, but Ringling Brothers has come under intense legal fire over the last couple of years. For instance, the company is fielding an on-going federal lawsuit from various animal rights groups which, under the Endangered Species Act, allege that "Ringling Brothers' routine beating of Asian elephants with bull hooks, its forcible separation of baby elephants from their mothers, and its chaining of elephants for long periods of time constitute the unlawful 'take' of these endangered animals in violation of the ESA." PETA also sued Ringling Brothers last year on allegations that it ran an extensive corporate espionage campaign against PETA and hired a former CIA operative to help conduct the operation.

I recognize that a circus and the law story might seem like a stretch for a sports law blog, but the Michael Vick pitbull fighting/animal abuse story must still be on my mind. And taken together, these stories appear to illuminate at least a couple of ways that we abuse other animals to entertain ourselves. That point brings to mind Geoffrey's excellent post from last May entitled "Was Barbaro Abused?"

Posted By : Michael McCann

Credentialing Sports Bloggers

Message posted on : 2007-05-04 - 11:07:00

[Updated with corrected link to Bucco Blog.]

I received a link the other day to Bucco Blog, a blog devoted to the Pittsburgh Pirates. From May 2, Jake discusses his efforts to gain press credentials for the 2006 All-Star Game at Pittsburgh's PNC Park.

Jake sought credentials with the help of some MSM outlets, but was denied. But MLB Senior VP of Public Relations Richard Levin told him that, while current MLB rules do not allow bloggers to receive press credentials, MLB is evaluating those policies and trying to figure out how to treat bloggers.

The issue of credentialing bloggers is interesting from two ends. From one end is how MLB (and other leagues) can and should consider bloggers when deciding who gets media credentials. The sheer volume of sports blogs and bloggers means teams and leagues cannot accommodate everyone who might seek credentials, requiring some sorting and priority mechanism.

But based on what--readership, influence, impact, first-come/first-serve, lottery? The latter two cannot work, obviously, because the league wants (and needs) the biggest and most powerful media outlets to have access. And although it is easy enough for MLB to say that, for example, Deadspin or Kissing Suzy Kolber, the biggest of the sports blogs, can be treated the same as The New York Times or Sports Illustrated. But what about smaller blogs, which are having as much of an impact and are doing as much important reporting and speaking about sports?

Of course, being private entities, the leagues can do what they want. Unless the use of public sports facilities changes that. The one case in which a court has held that the use of a public sports facility by a private league made the league a state actor involved media rules. In Ludtke v. Kuhn, a district court held that MLB's rule barring female reports from the clubhouse at Yankee Stadium during the 1977 World Series violated the Equal Protection Clause. So, perhaps a blogger, denied credentials at an event at a public stadium, could cobble together a First Amendment argument.

From the other end, there is the question of whether many bloggers even want press credentials. Part of the essence of blogging and on-line sports reporting is the distance that writers keep from the players and coaches by not traveling with the team, being in the locker room, etc. Many believe that distance enables them to write more objectively and critically (when necessary and appropriate, of course) than they would if they had a personal relationship with the players. Certainly Bill Simmons of ESPN trumpets the fact that, when he was getting his start and building his reputation, he was writing from outside the players' inner sphere.

The credentialing issue may force sports leagues to grapple more quickly than other fields with the question of "who is a journalist".

Posted By : Howard Wasserman

Action on the Court (of Appeals), Part II

Message posted on : 2007-05-02 - 22:00:00

As promised, here is the third, and potentially most far-reaching, of the sport-related cases out of the federal courts of appeals. In Jennings v. University of North Carolina, the en banc United States Court of Appeals for the Fourth Circuit reversed a grant of summary judgment and remanded for trial in a sexual-harassment lawsuit by a former UNC women's soccer player against long-time Head Coach Anson Dorrance and several university officials. Jennings, who spent two years as a back-up goalie before being cut from the team, brought claims under Title IX (which prohibits discrimination or denial of benefits "on the basis of sex" by educational institutions receiving federal funding) and the Equal Protection Clause. Jennings sued along with another former player, Debbie Keller; Keller's claims settled.

Jennings's case centers on the sexually charged and sexually explicit atmosphere within the UNC soccer program, mainly sexually oriented discussions among the players in which Dorrance often participated. This included questions and comments, in vulgar and explicit terms, to and among players about their dating, personal, and sexual activities; comments Dorrance allegedly made to a male trainer about wanting to have a threesome with his Asian players; and directly questioning Jennings about her current sexual partner. Jennings testified that this focus on sex and sexual activity made her feel "uncomfortable, filthy and humiliated." The majority opinion recites a number of such sexually explicit incidents over and over again throughout the opinion in holding that Jennings had put forward evidence which, if believed, would allow a jury to find that she had been the victim of sexual harassment.

The case, particularly in the very different pictures painted and conclusions drawn from the record by the 8-judge majority and the 2-judge dissent, has some interesting features. And, as a diclaimer, let me say that I do not know much Title IX law (beyond the very basics), so I welcome comments from people who know more than I do.

First, there is the unique context of sports, sports teams, and the locker room and practice field, where much of the harassing talk took place. Conversations in team locker rooms often focus on sex, usually in frank and vivid detail about who is engaging in what acts how often with whom. I know this from firsthand experience working with men's college basketball teams as a student manager and as a coach and I have no reason to believe it is different with other men's sports. The facts in the UNC case (especially as described in the dissent's narrative) suggest there are similar conversations in women's locker rooms.

The majority and the dissent both purported to account for the unique context of high-level competitive athletics and the team locker room in considering whether anything actionable had occurred. The majority insisted that its "conclusion takes into account the informal, sometimes jocular, college sports team atmosphere that fosters familiarity and close relationships between coaches and players." The dissent similarly insisted that the "proper baseline by which to judge the language of Coach Dorrance and Jennings' teammates is the world of competitive collegiate athletics in which coaches, by necessity, have a much more casual and personal relationship with their student-athletes." But they obviously reached very different conclusions.

Second, it seems somewhat strange to say that Jennings was discriminated against "on the basis of sex"--that is, because she is a woman. The majority insisted that "Dorrance's persistent, sex-oriented discussions, both in team settings and in private, were degrading and humiliating to his players because they were women." But that is true only if all discussions of sex and sexual conduct, if pervasive enough, are harassing or discriminatory towards women. Thus, any woman who is offended by sex-oriented talk (as Jennings was) is being harassed or disadvantaged because she is a woman. But is Title IX (or Title VII, in the analogous employment context) supposed to be that broad?

The facts show that Dorrance talked to Jennings about sex and sexual activities just as much as he talked to the other UNC players (all of whom also are women, obviously) about sexual activities. Aside from one incident, in which Dorrance asked Jennings, in a private post-season meeting, who she was having sex with (as part of a broader series of questions apparently aimed at determining the cause of Jennings' poor academic and athletic performance), all the relevant conversations took place during team meetings, warm-ups, etc. It seems that Dorrance treated Jennings no worse than he treated any other woman on the team in these respects. This environment is perhaps hostile and abusive--and it arguably is too intimate an environment for an educator and his students in an educational institution--but it does not seem hostile and abusive because of sex (in the sense of being female). As the dissent argued, Jennings was not exposed to such sexual comments and banter because she was a woman, but because she was a member of the women's soccer team.

Third, and relatedly, there is the question of how much the outcome of this case turns on the fact that this is a case of a man coaching women athletes. Would the same lawsuit have come about if it was a woman coach having the same sex-oriented conversations and using the same language with her women players? I seriously doubt there would be such a lawsuit by a male athlete against a male coach. The majority again insisted that "Title IX is not a civility code for the male coach who coaches women, and it is not meant to punish such a coach for off-color language that is not aimed to degrade or intimidate." But it is difficult not to see this case as suggesting that male coaches now are more limited in how they can engage their female players in the sort of informal, intimate conversations that all the judges agree are a part of the athletic environment.

Fourth, there is whether Jennings could have been harassed by some of the comments and incidents at issue because most were not directed at her. Several occurred outside of her hearing and several others occurred before Jennings even joined the UNC program -- she only heard about them second- or third-hand, because people still were talking about them. The record shows only two comments directed to or about Jennings. Thus, her claim is about the "environment" of the program more than any harassment directed to her.

Again, I think this case could be far-reaching, particularly because I would not be surprised if the Supremes took this case (assuming UNC and Dorrance seek cert).

Posted By : Howard Wasserman

Action on the Court (of Appeals)

Message posted on : 2007-05-02 - 06:44:00

Three sports-related cases came down from three federal circuit courts of appeals in the last month. Let me talk about the two shorter ones here, then save the third for a separate, longer post.

The first is Breen v. Texas A&M University from the Fifth Circuit. Since 1909, students at Texas A&M have built a massive tower bonfire to light on the eve of the Texas game; it symbolizes the "burning desire" to beat the LongHorns. In 1999, the tower collapsed during construction, killing 12 and injuring 27. The report of the investigatory commission is here. Lawsuits followed against the university and its officials by victims and their families. The theory of the suits was that, by delegating responsibility for construction of the bonfire to a group of students who were not trained or qualified for the task, the university had engaged in outrageous conduct in violation of substantive due process. The Fifth Circuit affirmed the grant of summary judgment in favor of the defendants on a defense of qualified immunity.

The court accepted that an earlier panel opinion in this action had recognized the "state-created danger" theory of due process liability. That theory makes the state liable for the misconduct of others (here the student leaders actually responsible for overseeing building of the tower) when the state somehow created the situation that allowed others to act in a way causing harm (here, by delegating responsibility). And the court accepted that the plaintiffs had sufficiently alleged a due process violation on that theory. But the court held that theory of liability (and thus individuals' rights to be free of government conduct that created such a danger) was not clearly established in 1999 (at the time of the events). Thus, a reasonable government official would not have known that, in delegating responsibility for the bonfire to students, he was violating the substantive due process rights of the other students who might come into contact with the bonfire.

Pretty straightforward stuff. The court perhaps was a bit stingy in recognizing how widely accepted (at least outside of the Fifth Circuit) the state-created-danger theory was in 1999. But this also seems like a case involving a tragedy for which there was some negligence and responsibility for the deaths and injuries, but not the sort of deliberate unconscionable misconduct that is the stuff of constitutional law.

The second case, out of the Tenth Circuit, is Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n. That case involved an Equal Protection challenge to an OSSAA rule granting automatic membership to public schools, but requiring private schools to get the approval of a majority of OSSAA members. Christian Heritage Academy twice applied for membership and twice was rejected, supposedly out of concern for the large geographic area from which the school drew students.

The panel majority accepted that the OSSAA had several legitimate interests supporting the majority-vote requirement for private schools: preserving competitive advantage, preventing recruiting and exploitation of athletes, and preserving a balance between athletics and academics. But the majority held that those interests were not furthered by the majority-vote rule. Member schools' votes were unguided and standardless, meaning a nonpublic school could be denied membership even by a majority of membership schools, even if the applicant school posed no danger of recruiting or harming competitive balance. Thus the differential treatment of nonpublic schools seeking to join the OSSAA violated equal protection. The court remanded with orders to enter judgment in favor of Christian Heritage and to formulate an injunction against the majority-vote rule.

This case is somewhat of a piece with Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy, the First Amendment challenge to a high-school-athletics recruiting ban, a case on which the Supreme Court heard oral argument last month and which was discussed at length here and here. Both cases deal with constitutional issues arising from efforts by a scholastic athletic association to maintain competitive balance and to keep sports in its place.

More importantly, both reflect a tension over how to incorporate public and private schools in scholastic athletic associations. The record in Christian Heritage showed public schools' fears of competing with private schools, given the latters' perceived advantages owing to their ability to recruit, to offer financial aid, to attract students from a wider area, and to attract transfer students. Public school officials were specifically concerned that private schools were enjoying on the athletic field, success that (the theory goes) is traceable to those competitive advantages. The record shows that Christian Heritage's memberhsip application was being considered and rejected in 1998 and 1999, when several nonpublic schools were enjoying great athletic success.

One of the amicus briefs supporting the TSSAA in Brentwood came from the "Small Independents," four small private schools. They argued that if the recruiting rule is unconstitutional, the TSSAA could not continue to include public and nonpublic schools, because private schools given a First Amendment liberty to recruit would enjoy a competitive advantage. The events underlying Christian Heritage suggest many public school would prefer to go on without private schools.

Posted By : Howard Wasserman

SLA Annual Conference

Message posted on : 2007-05-01 - 09:57:00

The Sports Lawyers Association 33rd Annual Conference is going to be held in Boston on May 17th - 19th. The three-day event is, by far, the largest and most comprehensive sports law symposium assembled every year. The conference attracts the attendance of sports industry people nationwide from law firms, sports agencies, team front offices, professional leagues, players associations, collegiate athletics, and academia. The conference is highly educational, as well as a great networking forum. I highly recommend the event for anyone interested in entering the sports law field. The conference brochure may be accessed here.
Posted By : Rick Karcher

Boston Celtics and the Law

Message posted on : 2007-04-29 - 14:58:00

Tonight at 7:15 p.m. EST I will be a guest on Celticsstuff Live (update: podcast available here) a radio show devoted to discussion of the Boston Celtics, my favorite NBA team. We will be discussing a recent post that I helped to write on The Situationist entitled "The Situation of the NBA Draft," which examined how NBA players' success is often based on the situation in which they play, even though we tend to judge them as individuals.

We will also be discussing four Celtics-related legal developments that have arisen in the last week:

1) Tony Allen Acquitted: Shooting guard Tony Allen, who had been charged with aggravated battery relating to a Chicago restaurant shooting and was facing two to five years in prison, was acquitted last week in a bench trial before an Illinois state judge. Last September, I wrote a lengthy article on Allen's trial entitled "Tony Allen's Trial: Contemplating Guilt." At least from afar, it's interesting that Allen was acquitted since, according to some reports, the Chicago Police Department had the entire shooting on videotape (although I've also read that the videotape actually exonerated Allen--and as we know, establishing reasonable doubt in a criminal trial is a low threshold). In any event, Allen, who is rehabbing from a serious knee injury, still faces a civil lawsuit from Marktwain Johnson, the man whom Allen allegedly directed someone in his group to "F--k him up!"

2) Sebastian Telfair Arrested: Point guard Sebastian Telfair, who had a disappointing season after the Celtics traded the #7 pick in the 2006 NBA draft to obtain him, was arrested by the NYPD last week after officers, who had pulled Telfair over for speeding, found a loaded .45-caliber Colt semiautomatic handgun in his car. The gun, which was not registered in Telfair's name and does appear to be his, was under the passenger seat. A victim of a robbery last fall, Telfair has been charged with felony second-degree possession of a weapon since under New York law, "when drugs or weapons are found in a car, everybody in the vehicle is charged with the related offense, unless a single person admits it belongs to him."

Controversially, the Celtics responded to the arrest by removing Telfair's nameplate from his practice facility locker and pledging that he would never play another game for them. Telfair's attorney, Ed Hayes, lambasted the Celtics for this presumption of guilt maneuver, saying,
"It's a cheap shot and my client is very disappointed. It seemed to me that they were looking for an opportunity to dump this kid who has worked really hard in his life . . . He's never been arrested before. He came from total poverty and made enormous sacrifices for his family and I think that entitles him to the benefit of the doubt from the public as to what really happened here."

3) Kendrick Perkins Sued for Breach of Contract: Center Kendrick Perkins, who will hopefully be supplanted by Greg Oden next season (I can dream), has been sued by Michael Rylas, his former high school assistant coach who would later become his personal trainer/manager/confidant, for breach of contract. Right after Perkins was selected with the 28th pick in the 2003 NBA Draft out of Ozen High School in Beaumont (TX), Rylas moved with Perkins to Massachusetts and lived with him until last fall. During that time, Perkins paid Rylas, apparently without a contract and perhaps under the table, for various services (training, investing advice, tax advice--basically being Perkins' Chief of Staff).

Then, on September 7, 2006, Ryals and Perkins entered into a formal written contract that called for Rylas to continue to perform those services in exchange for 6 percent of whatever Perkins earned from his NBA contract, but excluding monies he would receive from endorsements or incentives. Perkins would then sign a 4-year, $16 million contract extension with the Celtics but did not, according to Rylas, live up to his end of the bargain.

4) Kevinn Pinkney Arrested for DUI: Forward Kevinn Pinkney, a key member of the Celtics' late season tanking efforts after being signed to a 10-day contract, was arrested on suspicion of driving under the influence in Reno, Nevada last week. He failed several field sobriety tests and was later booked for DUI. I suspect he won't be coming back to the Celtics next season.

I hope you get to listen to the show or its podcast. Thanks to Jon Duke, Justin Poulin, and JB for having me on.

Posted By : Michael McCann

Brady Quinn, the NFL Draft on ESPN, and Confirmation Bias

Message posted on : 2007-04-28 - 15:02:00

For those of you who are also watching the NFL Draft, I wonder if we can get any more attention devoted to Brady Quinn, who has received more air time (and at least three personal interviews, including one with a moribund Suzy Kolber who tried desperately to get him to shed a tear or at least a swear) than all other players there, combined? Quinn, who was projected by most mock drafts to not fall past Miami at #9 (and many drafts had projected him to go #3 to Cleveland) has not yet been drafted, and we are on pick #16 as I write this. What I find interesting is how confirmation bias appears relevant in ESPN's coverage of Quinn.

What is confirmation bias? It's a cognitive bias that we all suffer from, and it causes us to interpret information, and to amplify certain information, that validates our beliefs at a particular time. So our minds cherry-pick facts and observations that help to validate an opinion, but discount or altogether ignore information that contradicts that opinion. I write about confirmation bias, and other cognitive biases, in my law review article It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review 1459 (2006). In the article, I examine how Jermaine O'Neal seemed to suffer from confirmation bias when he thought that Larry Bird would keep Isiah Thomas as head coach, a belief that many found dubious and yet one that O'Neal regarded as crucial in re-signing with the Pacers in 2003.

But back to Brady Quinn. When the draft began, the ESPN guys were flowering him with superlative after superlative. Steve Young was particularly effusive, gushing that Quinn had remarkable intangibles and would be a fantastic pick. Chris Berman couldn't get enough of the guy. It was as if Brady Quinn was a can't-miss prospect.

But he didn't go number 1. And then Cleveland passed on him at #3 (at which moment the ESPN cameras focused not on the Browns pick, Joe Thomas, or on the Browns fans, but rather on a dejected Quinn and his mom and girlfriend, followed by a photo of Quinn when he was 5-years-old wearing a Browns uniform. Oh the sadness!). Worse yet, when Miami surprisingly drafted Ohio State wide receiver Ted Ginn at #9, suddenly there was a need to explain what's wrong with Brady Quinn. Why had no one picked him? There must be some reason.

Well in came the ESPN trio of Michael Smith, Sean Salisbury, and Mark May who proceeded to deride Quinn as "overrated"; "doesn't play big in big games"; "not accurate"; "even his name 'Brady' is a problem," Michael Smith curiously put it. No longer was Brady Quinn a can't-miss prospect, he had become the beneficiary of playing at Notre Dame, a product of Charlie Weis' play book, and certainly not worthy of a high draft pick. Even worse, his first name was Brady. What were his parents thinking?

It's interesting to observe the rapid shift in "expert" observations of Brady Quinn to fit an unexpected development in the draft. When things looked good for Brady Quinn, Brady Quinn looked good; when the going got tough, so did how others characterized him.

Still, it's undeniably fun to watch the NFL Draft.

Update: As I pat myself on the back for my prediction in the comments section coming true (a first, no doubt), the Browns traded with Dallas to take Quinn at #22, and now ESPN loves Brady Quinn again--"he's not afraid to throw the tough throw,"Braveheart as QB if you will--while doubting the Dolphins for passing on him at #9 (where were those doubts earlier?). And as I type this, Suzy Kolber is interviewing him again, except asking softball questions this time around.

Posted By : Michael McCann

Honoring Harvard Law School Professor Paul Weiler

Message posted on : 2007-04-27 - 07:10:00

Harvard Law School professor Paul Weiler is considered by many to be the founder of American sports law and the most distinguished sports law professor around. A renowned expert in many legal fields, including labor law and entertainment law, his extraordinary legacy in sports law is the focus of this post.

From a pedagogical perspective, Professor Weiler's sports law course at Harvard Law School has been crucial in turning our favorite area of the law into a respected and legitimate field. Even more impressive, Professor Weiler has been a wonderful mentor to so many students and former students, including me. He is always available to provide advice and guidance, and his friendship is invaluable.

Professor Weiler's scholarship has also been essential to the creation and growth of sports law. He is the co-author of perhaps the leading sports law case book with Gary Roberts, "Sports and the Law: Text, Cases, and Problems" as well as many influential books and law review articles, including "Leveling the Playing Field: How the Law can Make Sports Better for Fans," which the New York Times Book Review called "a provocative book that combines the broad knowledge of an all-seasons sports fan with the clarity of an antitrust lawyer."

Beyond his teaching and writing, Professor Weiler has been a noted public advocate for sports law. He has testified before the U.S. Congress and met with various political leaders in Canada, his home country. Given the trust that so many influential persons have placed in Professor Weiler, it's not surprising that the late Boston Globe columnist Will McDonough once said, "When it comes to sports law, Paul Weiler knows the answer before you ask the question."

Tonight, Harvard Law School will honor Professor Weiler, who has taught there since 1979. I am honored to be participating in this great event, which will feature a keynote address from Peter Gammons and the following schedule:

The Rules of the Game:

The Winning Effect of Paul Weiler


Friday April 27, 2007

3:45 to 5:00 Panel (Austin West): "Rules of the Game: The Winning Effect of Paul Weiler"
Roger Abrams
Professor and Former Dean of Northeastern University School of Law

Stuart Brotman
President of Stuart N. Brotman Communications

Peter Carfagna
Lecturer on Law and Covington and Burling Distinguished Scholar at Harvard Law School

Michael Curley
Partner in the L
abor and Employment Law Department of Morgan Lewis in New York City

Donald Fehr
Executive Director of the Major League Baseball Players' Association

Rick Horrow
CEO of Horrow Sports Ventures

Rob Manfred
Executive Vice President of Labor Relations & Human Resources at Major League Baseball

Jeffrey Pash
Executive Vice President of the National Football League
5:30 Reception (Caspersen Room in Langdell Hall)

6:30 Dinner (Caspersen Room in Langdell Hall): Keynote speakers:
Elena Kagan
Dean of Harvard Law School

Peter Gammons
Baseball Commentator on ESPN
Other speakers:
Stephen Greyser
Richard P. Chapman Professor of Business Administration, Emeritus, at the Harvard Business School

Joseph Weiler
Professor of Law at the University of British Columbia

Robert Weiler
Attorney

Please contact Professor Weiler's assistant, Susan Smith, with any questions. It should be a great event.

Update: See Professor Weiler's new blog, which includes a post on the event and one on an interview with his family. You can also see tons of great photos from the event.

Posted By : Michael McCann

Michael Vick, Pit Bull Fighting, and The NFL's New Personal Conduct Policy

Message posted on : 2007-04-26 - 19:19:00

Last week, Rick had a terrific post that examined whether the NFL's new personal conduct policy affords Commissioner Roger Goodell too much discretion. We now hear, through Deadspin, that Michael Vick has possibly been running an illegal pit bull fighting ring, and it's interesting to speculate how Commissioner Goodell might apply the code to Vick.

So what has Vick allegedly done? Well, he owns a home in Smithfield, Virginia, where state and county animal abuse investigators were recently called in to investigate after local law enforcement officers, who were acting on a search warrant relating to drugs, found that the property was hosting fights between pit bulls. You can read the details here, but basically they found 70 dogs, many of whom were suffering from neglect (including injuries and dehydration). They also found overwhelming evidence of organized pit bull fighting that took place in three buildings behind the home. That evidence included "rape stands (used to allow fighting dogs to breed while preventing them from attacking each other), equipment used to build strength and endurance in fighting dogs, and controlled substances frequently used in dog-fighting." Pretty disgusting stuff, if true, and not to fan the flames, but check out some of the horrific injuries to dogs who are forced to partake in pit bull fighting, as found on Google Images--but be warned, they may make you sick.

In fairness to Vick, 1) no charges have been filed (yet); 2) while he owns the home, he doesn't live there; his nephew does; 3) we have not yet heard his side of the story--it's always easy to jump to conclusions when only side of the story is available; Vick may have an explanation that mitigates, if not exonerates, his role in what appears to be an illegal operation.

But what will Commissioner Goodell do if Michael Vick is indeed charged with animal abuse, which, under Virginia Law (Virginia, Code Ann. 3.1-796.122), is punishable by up to one year in prison and a $2,500 fine?

Sports Law Blog reader Will Li considers that question and wonders whether the sheer expansiveness and vagueness of the new personal conduct policy--characteristics that at first glance would seem to empower Commissioner Goodell--might ultimately prove to be his undoing:
With the news that Michael Vick is in trouble again, I'm wondering how Roger Goodell will act on this.

Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct policy is not only bad for the players, but will be bad for the Commissioner as well.

By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.

For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?

Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).

I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.
Will makes a compelling case. Is he right?

Posted By : Michael McCann

Duquesne Hoops Player Sues School for Lack of Security

Message posted on : 2007-04-26 - 14:58:00




ESPN.com has just reported that Stuard Baldonado, one of the five Duquesne Dukes basketball players shot at an on-campus dance back on September 17, 2006, has sued the school for lack of security (provision and enforcement).
The Pittsburgh Post-Gazette has a more detailed account here.
Baldonado, a transfer from Miami-Dade CC, had not yet played for the Dukes prior to being shot in the arm. The lawsuit alleges that the bullet hit an artery and then continued through his chest, missing his spine by a centimeter. Baldonado, who utilized a medical redshirt last season, currently works out with the team.
According to his attorney, the injury is affecting the full-range of his basketball abilities, resulting in a loss of future earning capacity. The lawsuit also seeks recovery for past and future medical expenses, as well as pain and suffering.





Posted By : Tim Epstein

The Lost NCAA Conference

Message posted on : 2007-04-25 - 06:53:00

In 2002, John Thelin noted:
"[I]n recent years there has been a groundswell of excellent scholarly works dealing with intercollegiate athletics. The topic has both endurance and significance now that such disciplines as history, economics, law, literary analysis, and political science have been brought to bear on the serious study of college sports. Don't hold your breath for any strong connection between research and reform. As the scholarship on college sports gets better, the educational and ethical problems of college sports get worse."
In 2006, apparently unaware of such a groundswell, and noting the lack of such research, Dr. Myles Brand and the NCAA decided to sponsor an academic conference to encourage scholars to study college sport.
"The NCAA decided to sponsor the academic conference, he [Brand] said, because it wanted to involve faculty members not in role they sometimes play on their campuses — helping to oversee and govern the sports programs — but in their primary role as scholars. 'The idea was that there's another role for faculty in intercollegiate athletics that we haven't taken up at the NCAA, and that's to treat intercollegiate athletics as the subject matter for research,' said Brand, a philosopher who was president of Indiana University before taking the reins at the NCAA. 'We thought it would be helpful if the NCAA would be supportive of that effort.' "
As a result, the NCAA announced it would host a conference: The 2007 Conference on Intercollegiate Athletics and Higher Education in America an "inaugural, academic, juried conference...intended to summarize scholarships from the last several years on the context of intercollegiate athletics in higher education in America and role of sport in American culture."

I found out about the conference when I was contacted by an NCAA staff member and asked to serve on the conference abstract review board. As the months went by, and after submitting 7 abstracts and previously published papers (per the conference guidelines), I contacted the NCAA to determine the status of the conference and find out when I could expect to receive abstracts or papers to review. It seemed to me time was running out. That's when I found out the conference had been postponed. No formal announcement, no press release on the NCAA website, nothing. And more interestingly, no abstracts or papers to review.

That's when I made a few phone calls and found out that another reviewer had also not received any material to review. After a few more phone calls and a few emails back and forth with NCAA staffers, I was told the conference had been "postponed" because of a lack of interest on the part of scholars. Unable to determine how many scholars had submitted papers, I began contacting several individuals and kept hearing back that they, too, had submitted to the conference. But, evidently there was not enough interest...

Then a story appeared--citing a lack of quality papers, Dr. Brand postponed the conference and the "spin" began:
"...when he looked at the papers — 'and having been in the academy for 40 years, I think I can tell the difference between a good paper and something that's not high quality,' Brand said — he saw too many of the latter and too few of the former, he said."

"That's when the association decided to start from scratch, and to convene 'the leading scholars in their fields, from sociology, history, literature, economics, business,' to plan the meeting and, ultimately, referee the papers. Brand says he is confident that the 2008 conference will produce important work that measures up to material published in scholarly journals."

"The NCAA's announcement of the new event said its theme would be “College Sports: A Legitimate Focus for Scholarly Inquiry,� and noted that it would feature “invited scholars of international repute� — suggesting that submissions would not be welcomed."
Okay, so what's the problem? The NCAA and Dr. Brand didn't like the papers submitted. It's their conference and if they want to take their academic "ball" and go home, so what? A reader may simply say, "What's the big deal?"

But, as an academic I think it's relevant to point out several things that shed light on the NCAA organizational and institutional cultures:

1) I was asked by the “nice people� in charge of the postponed NCAA conference to serve on the conference's review committee, but never received a single submission (inferior or otherwise) to review.

2) Since the only faculty members identified in the article as submitting papers or abstracts to the postponed conference are Drake Group members (who are often identified by Dr. Brand as ill-informed faculty who have their "facts" wrong), Dr. Brand's comments indirectly and very subtly disparage the scholarship of such scholars,while not mentioning anyone by name, and actually not commenting on any specific work. Maybe all the deficient scholarship was submitted by NCAA Faculty Athletic Representatives? Of course, we can't say any such thing, since the process is a blind-review one. (Unless Dr. Brand saw the names of the authors.) Dr. Brand's comments are similar to those found in a non-apologetic apology that actually denigrates those who criticize the individual.

3) I volunteered (as I have on two previous occasions) to help the NCAA in planning their next conference.

Now the NCAA has announced that in 2008 they will convene a "Scholarly Colloquium on College Sports"

According to the Chronicle of Higher Education "The gathering next year will feature four invited speakers who will be asked to talk about what kind of research is needed — for example, a closer look at athlete or fan behavior, or whether sports has a negative effect on certain minority groups — and speculate on the consequences further study might have on NCAA policies."

As Brad Schultz on Journal of Sports Media noted: "The NCAA's announcement of the new event said its theme would be “College Sports: A Legitimate Focus for Scholarly Inquiry,� and noted that it would feature “invited scholars of international repute� — suggesting that submissions would not be welcomed."

It seems pretty apparent to this "ill-informed" faculty member that the NCAA (or at least Dr. Brand) has little interest in a peer-reviewed academic conference. The NCAA tried that and they didn't like the submissions. Instead of rejecting individual submissions, or allowing "their" invited reviewers to perform their reviewer function, Dr. Brand unilaterally canceled the conference. He did not postpone the conference, he changed the format, the purpose, and the participants. In addition the NCAA and it's representatives and spokespeople disparaged the academic integrity of all those who submitted to the aborted conference, noting:
"We're hoping to get more people in nonkinesiology departments, people who don't do research on sport because it's not front and center in their disciplines, to come out of the academic closet, so to speak, and study sport," he said. "College sports have a tremendous impact on our educational institutions, our towns, our budgets. We think the time is right for a more serious look at the subject."
I guess all the jokers and academic imposters who have studied college sport for the last 100 years should be glad that serious "closeted" scholars can come out and take a more "serious" look at the subject. I'm sure I won't be invited to speak in Nashville next January, but hopefully I can find other less rigorous venues for my scholarship.

Recently Dr. Brand has taken the tact of dismissing any critics of the NCAA and/or college sports by utilizing the off-hand comment that "They have their facts wrong." Recent peer-reviewed research discussing the lack of educational content in 2006 NCAA Division I men's basketball broadcasts was referred to as "defying logic." However, the accuracy of the study's results was not questioned. Such tactics are all well and good, and expected as part of the NCAA's lobbying efforts, but now the NCAA has gotten into the academic and scholarly-inquiry business. The NCAA's proposed colloquium is even entitled "Scholarly," just in case people forget that it is intended to be scholarly. It's all part of the NCAA's branding efforts (pun intended).

The NCAA, in my humble professional opinion, is not satisfied with sponsoring athletic championships, and monopolizing college sports. It seems determined to also purchase any and all critical academic discussion surrounding intercollegiate athletics. I am struck by the similarity of this situation to the NCAA's tactics in its recent purchase of the NIT.

To purchase as much of the dialogue as possible, the NCAA will sponsor a BCS-like colloquium with only four scholars speaking as representatives for all. I have not doubt the NCAA will publicize this controlled scrimmage as an example of its commitment to its educational mission.


Note:

Next time I'll post information about the founding of the College Sport Research Institute (CSRI), a new journal entitled: Journal of Issues in Intercollegiate Athletics (JIIA), and next year's 3rd Annual "Issues in College Sport" colloquium and conference to be held April 16-19, 2008 on the campus of The University of Memphis.

FYI: Dr. Brand will be invited to serve on the institute's advisory board, and also contribute as a member of the journal's editorial review board. In addition, he will be asked to be a colloquium panelist and to submit an abstract or paper to be "blind peer-reviewed" for the conference.

It's the least one would expect as part of a legitimate scholarly inquiry into college sports.

Posted By : Richard Southall

The Importance of Which Team Drafts You

Message posted on : 2007-04-24 - 12:12:00

We have an article up on The Situationist today entitled "The Situation of the NBA Draft." It's premised on the idea that many, if not most, players selected in the NBA Draft will succeed or fail largely due to the situation of the team that drafts them. In other words, some players will find themselves in the right environment in terms of teammates and coaches and fans, while others will wind up playing in the wrong offense, with the wrong coach, in the wrong city. These situational factors can be enormously influential in whether the player succeeds or fails in the NBA.

However, when we evaluate these players, we usually focus on presumed, but often immeasurable and perhaps misunderstood qualities, like "how hard they work" or whether they have the "drive to succeed" (whatever that actually means). In other words, we tend to overlook the situation, and focus on the disposition, and that may not be the best way to judge players.

This same point is true of most jobs, of course. Who we work with, and who we work for, have enormous influence on how well we work. Yet often the situation of our employment (and of our relationships and pretty much anything we do) is overlooked by others. Indeed, the only way to really appreciate the situation of others is to be in it.

We hope you check out our analysis.

Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2007-04-23 - 15:48:00

New this week:
Vanessa Bovo, Comment, Keeping the public in the public use requirement: acquisition of land by eminent domain for new sports stadiums should require more than hypothetical jobs and tax revenues to meet the public use requirement, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 289 (2006)

Thomas Brophy, Casenote, Icing the competition: the nonstatutory labor exemption and the conspiracy between the NHL and OHL, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2007)

Meri J. Van Blarcom-Gupko, Should NASCAR be allowed to choose the tracks at which its series' races are run? 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 193 (2006)

Parker B. Parker, Jr., Take me out to the metaphor, 5 PIERCE LAW REVIEW 313 (2007)

Oscar N. Pinkas, Comment, The wisdom of Major League Baseball: why free agency does not spell doom for European football, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 257 (2006)

Vittorio Vella, Comment, Swing and a foul tip: what Major League Baseball needs to do to keep its small market franchises alive at the arbitration plate, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 317 (2006)

Posted By : Geoffrey Rapp

Tanking: The Fan's Perspective

Message posted on : 2007-04-21 - 11:04:00

Will Leitch, the editor of Deadspin, has an interesting op-ed in the New York Times wondering how fans can be so accepting of their teams tanking. This is a different perspective on the issue of tanking that Michael considered here and here.

Leitch's point is that being a fan (as opposed to being the team's GM) is a game-by-game, short-term consideration, rather than a long-term, big-picture commitment. You want the team to win this game once it begins; you are not thinking about how a loss may help you three months down the road.

Money line:

"Because I am a fan. And if a fan doesn't root for his team to win, who is he, exactly?"

Posted By : Howard Wasserman

Oral Agruments in TSSAA v. Brentwood Academy (Updated)

Message posted on : 2007-04-19 - 17:36:00

For those interested, this morning's oral argument in TSSAA v. Brentwood Academy is available here (HT: SCOTUSBlog).

I will provide some comments and thoughts once I have a chance to read it, probably tomorrow.


UPDATE and MOVED TO TOP

Having read the oral argument transcript, it appears one of my earlier predictions proved false: No sports puns or analogies from anyone. I stand by my other prediction, however: the Supreme Court will reverse the Sixth Circuit.

Some random thoughts:

* The TSSAA focused the First Amendment argument on its interests in preventing the exploitation of young student-athletes and on ensuring that athletics do not take precedence over academics. The lawyer never mentioned the interest in maintaining a level playng field, although the Chief tried to bring her in that direction at one point, by suggesting that public schools cannot recruit while private schools can.

* Several justices, including the Chief and Justice Kennedy, seemed inclined to accept that the recruiting rule should be subject to the First Amendment analysis reserved for government-employee and government-contractor cases, a less-burdensome analysis for the government to clear. There also was a lot of discussion of the voluntary nature of TSSAA membership and the fact that there are other, smaller athletic associations in the state.

* Several Justices seemed concerned with the possible breadth of the recruiting ban. They pushed both the TSSAA and the attorney for the United States about whether the rule would apply to all contacts between a school and prospective student--such as a brochure that mentioned Brentwood's stellar football program. Both the TSSAA and the United States pulled back from suggesting that the rule could apply that broadly. This allowed them to argue that Brentwood had other ways to get its message out, an important First Amendment consideration. There also was an interesting exchange between the lawyer for the TSSAA and the Chief about whether a coach could be penalized for criticizing game officials; the lawyer suggested that might not be within the Association's power.

* Brentwood's lawyer got hit hard about the fact that the speech at issue was more than general expression to the public at large about the school and the football program. This was recruiting; it was targeted at student-athletes and signed "Your Coach."

* Justice Breyer was extremely skeptical of Brentwood's procedural due process claim, in part because Brentwood was not clear about the precise nature of the claim. To the extent the problem was that a TSSAA investigator had ex parte contact with the Board, Breyer pointed out this happens every day in federal administrative agencies and that Brentwood's argument would invalidate the Administrative Procedures Act (Breyer is a former Ad Law scholar). To the extent the problem was lack of an opportunity to present certain evidence, it is not clear that opportunity mattered.

So, I still go with a reversal of the Sixth Circuit, probably unanimous. The rub in the case(and perhaps the source of divisions in the Court) may be what type of First Amendment analysis the Court adopts--whether it treats this as the equivalent of a government-employee speech case, which could have far-reaching effects.

Posted By : Howard Wasserman

How Many Wheelchair Seats Does the Big House Need?

Message posted on : 2007-04-18 - 20:55:00

News broke this week of a lawsuit filed by the Michigan Paralyzed Veterans of America under the Americans with Disabilities Act (ADA) against the University of Michigan. The suit concerns the number of seats that need to be wheelchair accessible in the stadium, which to this point has been exempt from the 1990 ADA because it was constructed decades before the statute was enacted. With the University poised to launch a major renovation of the 100,000+ seat stadium, plaintiffs argue that the stadium must now comply with the ADA. Under the ADA, public accomodations, like stadiums, must include wheelchair seating. The U.S. Department of Justice has indicated that 1% of stadium seating must be wheelchair accessible to comply with the ADA.

The plaintiffs and U of M differ, however, as to whether that 1% figure applies to the new seats to be added as part of the renovation, or to all the seats in the post-renovation stadium. Although more than 1% of the new seats will be wheelchair accessible (increasing the total number of wheelchair accesible seats from 90 to 282), according to the campus student newpaper, the Michigan Daily,
Stadium-wide compliance would include making 1 percent of all seating handicap accessible and offering a variety of seating locations and ticket prices for disabled visitors. For the officially 107,501-seat stadium, that means there must be at least 1,000 handicap accessible seats.
In addition, the plaintiffs object to the lack of "companion" seats (for the family and friends of a disable fan) adjacent to wheelchair seats.

The plaintiffs in this case are represented by Richard Bernstein, a blind Michigan lawyer (and U of M alumnus) who himself successfully sued Northwestern Law School over its use of the LSAT, which did not offer Braille exam.

The law is likely on the plaintiffs' side. The DoJ "1%" interpretation is entitled to judicial deference. Not only are wheelchair patrons entitled to a certain proportion of seats; as established in a series of recent cases involving stadium seating at movie theaters, they must also be provided with equivalent lines of sight.

It is nevertheless interesting to speculate about exactly how many "accessible" seats the stadium should have. Currently, only 53 Michigan ticket holders request wheelchair seating. The difference between that number, and the number of seats requested by the plaintiffs, is striking.

Michigan's is of course not an ordinary arena, in the sense that games at the Big House are sold out, and there is a multi-year long waiting list to obtain season tickets. It is not unreasonable to think that the number of available handicapped accessible seats could affect the interest of disabled fans in making the multi-year donation commitments necessary to preserve a place on the waiting list. In an ideal world, stadiums would be built with some sort of modular seating that could accomodate the changing needs of fans. As new disabled patrons obtain seats, or as current season ticket holders age and develop disabilities that require wheelchairs, permanent seats could be relocated or adjusted to increase wheelchair-accesible space. Unfortunately, our engineering capabilities may not yet allow such an approach in a cost effective manner that wouldn't at some point result in a pile of chairs tossed onto the field.

Still, I'm not sure that lawyer Bernstein's strategy of comparing Michigan's stadium to recent renovations at OSU and Notre Dame--"Ohio State University and the University of Notre Dame have recently undergone significant renovations compliant with ADA guidelines"--is likely to convince many in the Wolverine state to follow suit.

Posted By : Geoffrey Rapp

Does the NFL's New Personal Conduct Policy Afford the Commissioner Too Much Discretion?

Message posted on : 2007-04-18 - 09:45:00

Last Friday, I participated on a panel at DePaul University College of Law on the topic of regulating off-field misconduct. We had a lively discussion and debate regarding the timely issue of NFL commissioner Roger Goodell's one year suspension of Adam "Pacman" Jones. I raised a number of questions that should be considered by the players regarding this particular suspension, but more importantly, any future disciplinary actions taken by the commissioner under the NFL's new personal conduct policy.

1. Is it connected to the NFL's business?

Internal league discipline of players is warranted in situations that directly influence competition or affect the business side of the game. Examples of such situations would include gambling on the sport, use of performance enhancing drugs, or when a player unloads a slew of racial and ethnic slurs directed at New Yorkers, Mets fans and one of his teammates. But how does a fight in a nightclub (or any other violent behavior off the field) arise to the level of affecting the "integrity of the game"? And if it affects the "business side" of the NFL, how so? Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product? The justification for a "get tough on crime" policy seems to be that the owners, coaches and a majority of the players all agree with the commissioner when asked about it -- Well, of course they do! Are they really going to publicly say, "No, I think players getting arrested is none of our business"?

2. Should discipline be imposed without a conviction?

Are player arrests on the rise in the NFL? The advent of 24 hour news from multiple sources in which we are told 100 times per day that Pacman was arrested definitely makes it appear on the surface to be a growing problem in the NFL. But where's the data to suggest that it is. Recall a sampling of some of the headlines back in 2000: Ray Lewis (murder charge), Rae Carruth (charged with murder in the shooting death of his pregnant girlfriend), Mark Chmura (sexual assault charge) and Peter Warrick (charged with grand theft). League officials that year also reported that the number of players arrested for violent crimes actually dropped from 38 players in 1997 to 26 in 1999.

Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.

Off-field misconduct is laden with factual issues, which distinguishes it from on-field misconduct in which there are no factual issues because there are multiple camera angles of the behavior captured on videotape. Thus, in situations involving off-field behavior, the commissioner performs his own investigation and formulates an opinion. But the commissioner has no subpoena power and can't force witnesses to testify, and all of the safeguards afforded the accused in criminal proceedings are lacking (e.g. cross-examination of witnesses). Finally, and most importantly, a player disciplined prior to a conviction can be prejudiced in the criminal proceeding because prosecutors may subpoena the results of internal league investigations and use them against the player at trial.

3. Does the appeal process ensure fair and consistent disciplinary action?

Pacman has publicly stated that he will be appealing the suspension. The NFL is unique from the other sports in one critical respect: NFL commissioner discipline for off-field misconduct is not subject to review by a neutral arbitrator. Instead, the player's sole right of appeal is to the commissioner -- in other words, no right of appeal.

In the other sports, the arbitrator reviews commissioner disciplinary action using a "just cause" standard. "Just cause" is evaluated according to the common law of the workplace. Generally, this means that the league should follow progressive discipline in response to player misconduct, imposing increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player. It's arbitrary to impose an overly aggressive disciplinary action upon an individual player with an ulterior motive of sending a message to all players that "this is not to be tolerated". Arbitrators reduce suspensions when the suspension is unduly harsh or not in line with established precedent involving similar situations. Unfortunately for Pacman, and any other player subject to league discipline, he will never have that opportunity.

Posted By : Rick Karcher

New Sports Law Scholarship

Message posted on : 2007-04-16 - 13:03:00

New this week:
Brett Gibbs, Note, Antitrust and sports league franchise relocation: bringing Raiders I into the modern era of antitrust law, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 217 (2007)

Paul C. McCaffrey, Note, Playing fair: why the United States Anti-Doping Agency's performance-enhanced adjudications should be treated as state action, 22 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 645 (2006)

Jason Shane, Note, Who owns a home run? The battle of the use of player performance statistics by fantasy sports websites, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 241 (2007)

Posted By : Geoffrey Rapp

The Constitutionality of Regulating High School Sports

Message posted on : 2007-04-15 - 20:13:00

This Wednesday, the Supreme Court of the United States will hear oral argument in Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy.

Brentwood Academy, a private school in Tennessee and a TSSAA member, was sanctioned for violating the prohibition on recruiting student-athletes through the exertion of "undue influence." Brentwood's football coach sent a letter to twelve eighth graders who planned to attend Brentwood the following fall; the letter informed them that they were eligible to participate in spring practice and, although they did not have to, it would be to their "advantage" to do so. Brentwood sued, arguing that the enforcement of the recruiting rule against it violated the school's free-speech and due process rights.

This is the second trip to the Court for these parties. In 2001, the Court held that the TSSAA--which is not an official state agency, but a private membership organization comprised of public and private schools whose regulatory authority over interscholastic athletics long has been recognized by the Tennessee State School Board--is a state actor and thus subject to constitutional limitations. The Court now will consider whether the TSSAA's rules against recruiting student-athletes are constitutionally valid.

The court of appeals held that the anti-recruiting rule was unconstitutional as applied to Brentwood for two reasons. First, the letter to the prospective student-athletes did not impose undue or unfair influence on them, because neither the students nor their parents felt imposed upon and, in fact, welcomed, the information from the school. Second, TSSAA's desire to ensure a level competitive athletic playing field (by preventing some schools, particularly private schools, from stockpiling talent by enticing, pressuring, or convincing talented athletes to attend) was not a substantial governmental interest that justifies limitations on free expression such as the anti-recruiting rule.

The latter point is potentially far-reaching, since organizations such as the TSSAA (or, for that matter, the NCAA, which filed an amicus curiae brief in support of the TSSAA) exist specifically to ensure competitive balance in interscholastic athletics. If that interest does not justify some limitations on expression (such as recruiting contacts between schools and student-athletes), the organization no longer can perform its regulatory function, at least with respect to private schools.

The other issue floating here is the argument (emphasized in the NCAA's amicus brief) that the Court should overturn its earlier ruling that the TSSAA is a state actor (which would, of course, eliminate the need to resolve some tricky First Amendment issues). The 2001 decision was 5-4 and two seats on the Court have changed since then, including the replacement of Justice O'Connor (who joined the majority) with Justice Alito.

I wrote a short essay on the case for the ABA's Preview of United States Supreme Court Cases, which I hope to be able upload prior to Wednesday. My quick prediction is that the Court will not overturn its earlier state-action ruling, but that it will reverse the lower courts; I do not see the Court recognizing, in essence, a right of schools to recruit student-athletes.

And I predict a lot of sports puns, metaphors, analogies, and stories in the argument and the opinion; the parties and the Court cannot help themselves when sports are at issue.


UPDATE # 1: I neglected to mention that Michael discussed this case when the Sixth Circuit's decision came down last May. I largely agree with his analysis, particularly the notions that letters such as the one from Brentwood's coach obviously affected the twelve student-athletes (all twelve--surprise, surprise--showed up for spring practice) and that if such letters cannot be restricted, then high school sports becomes the unregulable wild west. All the more reason to believe the Sixth Circuit opinion will not stand.

Posted By : Howard Wasserman

Ryan Gomes and "The Hunt for a High Draft Pick"

Message posted on : 2007-04-14 - 22:21:00

Ryan Gomes Greg Oden Kevin DurantEarlier this week, I published a couple of posts on NBA teams deliberately losing games in order to secure a better lottery position ("Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?" & "The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant?"). The readers' comments to the those posts are fantastic, as are reactions on other websites and blogs. My genuine thanks to all those who commented and who linked to the post, and particularly to ESPN's Bill Simmons and Henry Abbott and Sports Illustrated's Kelly Dwyer.

But despite what most would say is fairly strong evidence of NBA teams tanking, some are skeptical that players would ever agree to a scheme where games are purposefully lost. And there are some compelling reasons for that skepticism.

First off, aren't players prideful about competing and winning games? And even if they aren't--let's say they are completely selfish--wouldn't they care about their stats for their purposes of future contract and endorsement opportunities? So why would a player play worse to help a team lose? Or why would he not play in games, or parts of games, due to what are really phantom injuries, thus potentially making him appear less durable and less tough (which again would seem to jeopardize future contract and endorsement opportunities)?

Those arguments certainly have some logic to them. But to counter them, I bring you Boston Celtics forward Ryan Gomes, a graduate of Providence College and the Celtics' second round pick in the 2005 NBA draft. Gomes is one of the Celtics better players, averaging 12 points and 6 rebounds a game, making him the Celtics 4th leading scorer and 3rd best rebounder. Of interest to this topic, Gomes and starting point guard Rajon Rondo were curiously benched for the fourth quarter of the Celtics home game against the Milwaukee Bucks last night--a game the Celtics lost by two points, thereby securing the second worst record in the NBA this season, and preventing the Bucks, holders of the third worst record, from "overtaking" them for that honor/dishonor.

When asked why he didn't play in the fourth quarter, Gomes surprisingly admitted the obvious:
"I probably (would have played), but since we were in the hunt for a high draft pick, of course things are different. I understand that. Hopefully things get better. Now that we clinched at least having the second-most balls in the lottery, the last three games we'll see what happens. We'll see if we can go out and finish some games."
The "hunt for a high draft pick." Gotta love this game.

Posted By : Michael McCann

Harvard Law School Panel on NBA Regulation of Player Expression

Message posted on : 2007-04-13 - 11:55:00

Harvard Law School and Lebron James

Next Wednesday, April 18th, Harvard Law School's Committee on Sports and Entertainment Law will host a panel entitled On & Off the Court: The NBA's Regulation of Player Expression. The panel will discuss the new NBA age limit, new technical foul rules, the dress code, and other issues that relate to life as an NBA player and life as a prospective NBA player.

The panel will begin at 7:30 p.m. in Pound 107 (directions to HLS/campus map). The event is open to the public.

I am honored to be a panelist, particularly since this subject is near and dear to my heart and particularly since each of the other panelists brings with him extraordinary experiences and insights on NBA player issues (just take a look below at who the other panelists are--it's an incredible group). Here is the official flyer on what should be an outstanding event:


Harvard Law School Committee on Sports and Entertainment Law Presents

ON & OFF THE COURT
The NBA's Regulation of Player Expression

Wednesday, April 18, 2007 7:30 p.m.
Pound 107
Harvard Law School
Cambridge, MA

Panelists

Hal Biagas
Deputy Counsel of the National Basketball Player's Association (NBPA)

Maverick Carter
LeBron James' representative and CEO of LRMR Marketing

Michael McCann
Sports Law Professor, Scholar, and Litigator

Kurt Schoeppler
Business Manager of Vince Carter and LeBron James

Jason Whitlock
Columnist of the Kansas City Star and AOL Sports

Moderator

Peter Carfagna
Lecturer on Law at Harvard Law School and former Chief Legal Counsel at IMG


If you are in the Boston area next Wednesday, I hope that you are able to attend what should be a fantastic discussion on issues concerning player autonomy in the NBA, and it would be great to meet you and any reader of this blog. For more information about the panel, please e-mail Mike Menitove at mmenitove@law.harvard.edu.

Posted By : Michael McCann

What Don Imus Tells Us About Georgetown Basketball and the NBA

Message posted on : 2007-04-12 - 18:21:00

Don Imus and Allen IversonEarlier today, Jon Hanson and I published a lengthy article on The Situationist entitled "Hoyas, Hos, & Gangstas."

We argue that the underlying prejudice found in Don Imus' comments about the Rutgers' womens basketball team can be found in other sports contexts, including in how we talk about male African-American basketball players, such as Georgetown University basketball players, and in how we regulate the behavior of basketball players, such as the NBA's recent attempts to make its players seem more "likeable" to mainstream America. However, unlike with the universal outrage we all expressed at Imus for his comments, these instances occurr in ways that we take for granted, find unoffensive, or even support. Jon and I try to examine why that might be the case.

We hope you read our article on The Situationist (and a thank you to Henry Abbot for linking to it on ESPN.com).

Posted By : Michael McCann

Scarlet Devils and Blue Knights

Message posted on : 2007-04-11 - 19:06:00

What makes Sports Law so interesting is how society plays out its neuroses through the microcosm of sports. Just look at the controversies involving two college sports teams: the Rutgers Women Hoopsters and the Duke Lacrossers.

When the Duke story first broke, the liberal media was quick to assume their guilt as an inevitable byproduct of privilege and indulgence. These were rich white spoiled jocks, the story went, and the law and its protectors should deal with their behavior in the harshest terms. We all learned eventually the facts were quite different and the real villain turned out to be the Arm of the Law who thought these sportsmen were an easy mark who could advance his career. The case has now been dismissed.

Next we have Mr. Imus who didn't think at all because it was so easy to make a sophomoric racist joke about a predominantly African-American team.

Neither attack proved so easy and may likely end the careers of the attackers.

What have we learned?

First, when real life events enter the sports bubble, they are typically blown out of proportion.

Second, and more importantly, sportsmen and women are not all of a type. While they may work wondrously as a team during the game, off the field they are individuals, often as different from one another and from the stereotype as can be imagined. Both the Duke men and Rutgers women turned out to be accomplished and articulate, deserving of dignity not ridicule.

Most athletes, even the Pros rich in income and adulation, don't want to be either made examples of or coddled; nor do they deserve such disparate treatment when they are out of the park.

Posted By : Alan C. Milstein

Fordham University School of Law Symposium on Sports Law

Message posted on : 2007-04-11 - 15:47:00

Next Friday, April 20, the Fordham Sports Law Forum will be hosting the 11th Annual Fordham Sports Law Symposium. The event, which will be held in Fordham University School of Law's McNally Amphitheatre (which is located on Fordham's Lincoln City Campus), has a great lineup of speakers and topics. It also offers 6 New York CLE credits. Here is the schedule:

9:30 am – Panel I: Sports Re-Broadcasting and Exclusivity Rights in the Changing Media Landscape. This panel will discuss the development and impact of new media platforms and devices like YouTube, Slingbox, satellite radio and MLB.tv on the sports world.

Moderator: Anthony J. Dreyer, Skadden, Arps, Slate, Meagher & Flom, LLP

Panelists:
Mark Conrad, Associate Professor of Business Law, Fordham University
Mark Loughney, VP of Sales & Strategy Research, ABC
Michael Mellis, Senior VP & General Counsel, Major League Baseball Advanced Media
David Proper, Senior Counsel, National Football League

11:10 am – Panel II: International Player Transfer Systems and Related Immigration Issues. This panel will focus on the legal regimes in place for bringing international players, such as Dirk Nowitzki, Jaromir Jagr and Hideki Matsui, to the US. The panel will also discuss the relevant immigration law issues with regards to the growing influx of foreign players to professional sports leagues.

Moderator: Jennifer Gordon, Professor, Fordham University School of Law

Panelists:
Jean Afterman, Assistant General Manager, New York Yankees
Lisa D'Avolio, Skadden, Arps, Meagher & Flom, LLP
Bill Daly, Deputy Commissioner, National Hockey League
Sunil Gulati, President, US Soccer

1:45 pm – Keynote Address: Tim Brosnan, Executive VP of Business, Major League Baseball “MLB's Extra Innings Package�

2:30 pm – Panel III: Potential Criminal and Civil Liability for Athletes' Conduct During the Ordinary Course of Game Play. This panel will discuss past cases involving players such as Marty McSorely, Todd Bertuzzi and Albert Haynesworth, address the application of criminal and civil law in both the US and Canada and debate the extent to which athletes should be liable for their actions during game play.

Moderator: Anastasia Danias, Counsel, National Football League

Panelists:
Tim Danson, Danson, Recht & Voudouris
Paul Kelly, Kelly, Libby & Hoopes
Roy Reichbach, General Counsel, New York Islanders
Michael Weiner, General Counsel, Major League Baseball Players' Association

To register, click here. You may also contact the symposium's co-chairs, Rebecca Ronzio at rronzio@gmail.com or Jonathan Kotler at jak015@aol.com.

Posted By : Michael McCann

New Sports Media v. Old Sports Media

Message posted on : 2007-04-09 - 15:10:00

There is ongoing tension between the new media and the old--between bloggers and mainstream media ("MSM" in the parlance). That tension is particularly noticeable as to sports media. Bloggers make a living (or at least a nice avocation) by criticizing (often justifiably, in my view) announcers such as Billy Packer, Dick Vitale, and Joe Buck. The old-guard regularly derides the unnamed "bloggers" out there on the Internets, who level criticism at them and at the athletes and coaches, in their view without any knowledge or basis for those criticisms.

That tension came to a head last Thursday when Colin Cowherd of ESPN Radio encouraged his listeners, on the air, to launch a "Denial-of-Service" ("DNS" or "DoS") attack on the sports blog The Big Lead. As Professor Susan Brenner explains, in a DNS attack, users flood a network so as to consume scarce resources or disrupt physical components of the network. The purpose of a DNS attack is to prevent the web-site operator from providing information to those who wish to visit the site for that purpose. Here, users flooded the web site with so many hits that the server became overloaded and the site shut down from Thursday morning until sometime on Saturday. Good summaries here and here. A good explanation of DNS attacks is here.

The incident unified most of the major sports blogs and their readers in condemnation of Cowherd and ESPN (a list of, and link to, blog commentary can be found here and here -- some of it less than politic.). The general view is that Cowherd crossed an ethical line, both for journalism and for the internet. ESPN's new ombudsman, Le Anne Schreiber, discussed ESPN's adoption of a (new) "zero-tolerance" policy for personalities using the airwaves to attack businesses in this way. This says nothing about whether ESPN will sanction Cowherd for an act in which he obviously took great delight, as when he gloated about the DNS attack sending bloggers the message "just don't screw with us." Unfortunately, there was no policy against what he did at the time he did it. Deadspin has thoughts on Schreiber's column here. The Big Lead has its thoughts on the whole thing here.

Some of the commentary also suggested or wondered whether what Cowherd did was unlawful or whether The Big Lead should pursue legal action against Cowherd and/or ESPN. The Big lead's editors stated they were surprised by how often commenters suggested suing and they are "looking into it."

So it is worht considering whether there is any legal there there. That, of course, is why this site exists. For starters, thanks to my colleagues Hannibal Travis and Andre Smith, both of whom know more about the Internet, computer law, and telecommunications law than I do and who provided thoughts, guidance, and initial research suggestions for me.

First, was the DNS attack unlawful?

The conduct, standing alone, may not have been. Cowherd's listeners simply visited the blog (a lawful activity) all at the same time. The question is whether Cowherd's (and his listeners') apparent intent to disrupt the blog's operation (as opposed to reading what was on the blog) renders that conduct criminal or tortious. And if so, what legal rules does it violate?

For purposes of applying general tort law, the question is what a DNS attack most resembles in the real (non-electronic) world. The application of law to the electronic world still (for better or worse) still requires such analogies.

At one end, we might compare this to a boycott or protest of The Big Lead--a large number of people refusing to read or patronize a business, perhaps by picketing or protesting on the sidewalks outside the store and encouraging others to respect the boycott; this have the effect of deterring or preventing others from patronizing the business. Perfectly legal (and constitutionally protected), although I am not sure the analogy works here.

At the other end, Professor Brenner argues that a DNS attack is vandalism, because it damages the victimized web site's functionality, impairing its ability to provide the services or information it offers to the public." Functionality, she argues, is an essential and integral element of a site operator's property. It is a "nuance" of web-based property that must be taken into account in understanding property and property rights on-line. It is not enough to have a web site up--a blog must be functional and accessible to those who want to see the information posted. So destroying functionality is equivalent to physical destruction of or interference with physical property or the stuff on display within the physical proper. Obviously tortious.

Somewhere in the middle are other analogies I have been turning over that may or may not be tortious in the real world. Maybe this DNS attack is comparable to an organized effort to buy up every copy of a magazine from every newsstand so no one in the general public can read it. Or maybe it is comparable to gathering an enormous group of people and going into a bookstore (off public property and onto the private property) to stand around and browse but not buy anything, just to so overcrowd the place that no one who does want to browse or buy can do so. Not sure which side of the line these fall on.

One last point on framing the appropriate analogue: Much depends on how the DNS attack was carried out. Was it in fact the lawful act of many Cowherd listeners accessing the site at once? Or was it done by a small number of individuals using computer programs to constantly reload the site (apparently as often as once per second)? If the latter, it begins to look more like so-called "cyber-vandalism" and less like a large number of people lawfully accessing the site.

A potentially applicable internet-specific source of law is a federal law prohibting fraud in connection with computers. The law prohibits "knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer." 18 U.S.C. s. 1030(a)(5)(A)(i). A protected computer is one "used in interstate or foreign commerce or communication." 18 U.S.C. s. 1030(e)(2)(B). And the statute allows the injured party to sue for damages. 18 U.S.C. s. 1030(g). It seems that this should apply to the circumstances here. There was intentional damage, the computer is in interstate commerce (the blog's server at the time was in Romania), and there seems to have been intent.

Second, assuming the attack on web site is unlawful, what is Cowherd's liability (as opposed to the liability of the individuals who took part in the DNS attack)?

The likely legal theory is that Cowherd incited his listeners to engage in the atatck. Under the First Amendment, speech rises to the level of unprotected incitement only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This includes inciting others to engage in tortious as well as criminal behavior.

This traditionally is a very high hurdle. The theory of the First Amendment is that we punish those who engage in unlawful conduct, not those who speak about it, especially those who are speaking to an unseen mass audience. Did Cowherd intend for his listeners to do this and is it likely that they would have? The intent part seems present, especially since (according to ombudsman Schreiber's column, Cowher proudly announced that they had crashed the site in 90 seconds, then told them to "knock it out again, just for fun." But how likely was it that people would act on his words? Cowherd might try to argue, for example, that he was just using rhetorical hyperbole and that he did not expect anyone to take him seriously (even if he hoped they would).

The other theory as to Cowherd would be conspiracy to crash this site, but this is much more difficult. Conspiracy requires an agreement among the speakers and actors and there was no such agreement between Cowherd and his listeners.

Third, is ESPN potentially in trouble with the Federal Communications Commission?

The FCC can sanction a broadcast licensee where on-air personalities incite listeners to engage in unlawful conduct, since it calls into question the licensee's basical qualifications to hold a license. But in (stated) light of First Amendment concerns, the FCC narrowly interprets and sparingly wields this power. In 2004, the Commission refused to take enforcement action against several Clear Channel subsidiaries that broadcast hosts and callers urging drivers hit bicyclists or run bicyclists off the road or throw bottles at them as they drove by. The FCC typically declines to undertake enforcement unless a court first determines that some unlawful incitement, as defined in Brandenburg, occurred.

So I am not sure where that leaves us--but in this forum, I do not have to decide anything. Depending on what The Big Lead does, this could be a test case of how sports blog and mainstream sports media will interact with one another and with the law.

Posted By : Howard Wasserman

Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?

Message posted on : 2007-04-09 - 14:58:00

In response to my post last Thursday on NBA teams purposefully losing games to increase their odds of drafting Greg Oden or Kevin Durant (a post that generated some wonderful reader comments and posts on other websites), George Mason University law professor and Volokh Conspiracy contributor Todd Zywicki asked me the following question:
Why do you think it is that the "tanking" concern seems to arise uniquely with respect to the NBA? There seems to be no concern about tanking in the NFL for instance and it is not uncommon to see a team spring an upset the last week of the season and knock them down a few spots in the draft.

One possibility is that the top players in the NBA draft are more "impact" players. But that might explain no tanking in baseball, but not the NFL.

Another possibility might be that the number of close substitutes is deeper in the NFL, but that doesn't seem clear either.

It is just odd--the NBA seems to be the one sport where this concern arises repeatedly over time. Indeed, that's why the NBA adopted the lottery--yet there are still allegations of tanking.

Any thoughts?
I e-mailed him back the following five possible explanations, which I have edited to incorporate his insight:

1) Impact Player & Lack of Close Substitutes explanation: It seems that there are certain drafts where there is at least one player who many believe projects as a future NBA superstar. With the caveat of complete subjectivity, I recall the last 10 drafts as follows in terms of players who, at the time, projected as superstars, followed by a significant drop-off in expectations:

2006: weak draft, no superstar projections
2005: weak draft, no superstar projections
2004: Dwight Howard and Emeka Okafor, and then a big drop off
2003: Lebron James, Darko Milic, Carmelo Anthony, drop off (I don't remember Dwayne Wade, who went #5, projecting as a future superstar).
2002: Yao Ming, drop off
2001: Kwame Brown, Tyson Chandler, Pau Gasol, Eddy Curry, drop off [maybe no superstar projections here?]
2000: weak draft, no superstar projections
1999: Elton Brand, Steve Francis, Baron Davis, Lamar Odom, drop off
1998: weak draft, no superstar projections
1997: Tim Duncan, drop off

But Professor Zywicki raises a great point: the NFL draft is just like the NBA Draft in that it often has a few guys at the top who are coveted, followed by everyone else, and yet allegations of tanking are much less common in the NFL. But his other point about close substitutes in the NFL draft also appears explanatory: there is likely more depth in a typical NFL draft than in a typical NBA Draft, meaning acceptable substitutes to top players in any NFL draft can usually be found throughout the first round, and sometimes even in the second and third rounds. Also, it strikes me that NFL teams often trade down in the first round, while that doesn't seem to occur nearly as often in the NBA, and that would appear to lend credence to a lack close substitutes in a typical NBA draft.

2) The NBA Is a League for Superstars explanation: One might argue that unlike the NFL and its focus on teams (e.g., the New England Patriots), the NBA is more individualistic and individual players get more attention. I suspect this is in part because we see NBA players' faces and expressions on the court, while NFL players are largely obscured in their helmets, and because there are only 10 players on an NBA court, while there are 22 on an NFL field. And maybe this also relates to the close substitutes idea and how there are fewer close substitutes in an individualistic NBA, while close substitutes are more possible in a team-based, organic NFL. But this explanation has some flaws, too (look at all the individual attention Peyton Manning gets etc.).

3) One Player Can Change an NBA Team explanation: The Spurs go from 22 wins in the 95-96 season to 56 wins in the 96-97 season after drafting Tim Duncan [along with getting a healthy David Robinson back].; the Magic go from 21 wins in the 91-92 season to 41 wins in the 92-93 season after drafting Shaquille O'Neal. This type of rapid, draft-based improvement would seem harder to do in the other sports. Along those lines, if either the Bobcats or Celtics draft Greg Oden, I wouldn't be surprised to see a similar upswing in wins next season. In contrast, it just doesn't seem that one great player will change an NFL team. Sure, Reggie Bush made the Saints better, but there were a lot of other new players who arguably had more of an impact (e.g., Drew Brees, Marques Colston, a healthy Deuce McCallister)

4) The Comparative Gambling Interests explanation: I would hate to think that this is relevant, but if an NFL team throws a game, there would probably be far more outrage than if an NBA team were to do the same. The bookies, gamblers, and Vegas types have too much on the line on every NFL game.

5) Nobody Cares explanation: Not many people follow bad NBA teams, and since each game is only one out of 81, people probably pay much less attention to each NBA game than they do to each of an NFL team's 16 games. Also, the NFL seems to promote their product better (i.e., most NFL games are on Sunday, which for many Americans has seemingly become a day built around NFL football, and there is always the sweet Monday night game to follow; in contrast, NBA games happen every night and there is no real build-up to any one game--this may make it easier for an NBA team to throw a game).

In summary, and as Professor Zywicki notes, we essentially have two categories of explanations: 1) the incentives are greater to tank in the NBA or 2) the costs of tanking are lower (e.g., either easier to get away with or less outrage if they tank). Even if both factors are small, they seem to push in the same direction.

But are our explanations correct? Are there are other explanations? And does tanking, in fact, occur more often in the NBA, or do we only see it more often because it is more noticeable?

Update: Other Takes

In addition to the outstanding reader comments to this post, several writers on other websites/blogs have responded:

"I think all the possible explanations suggested by the professor are at play here. There certainly is a perception in the NBA that if you can just land that one player, you can completely turn your team around. . . . If tanking is unique to the NBA vis-a-vis the NFL--and I'm not convinced that it is--then it is because winning matters in a more meaningful way in the NFL than in the NBA and because losing NBA teams think that one player can turn their entire franchise around in a way that NFL teams don't."

"Sports Law Blog's Michael McCann recently did a fine job breaking down the usual reasons behind the sort of hand-wringing that follows every supposed "distasteful" loss by a potential lottery participant. While there is absolutely nothing to disagree with in McCann's breakdown, I think he's giving the hand-wringers a little too much credit . . ."

"Professor Michael McCann of Sports Law Blog had a post on the recurring concern about whether bad NBA teams "tank" late in the season in order to secure a better draft pick. Concern about this phenomenon is what led to the unique "lottery" system in the NBA. I wrote him asking why this concern continually arises in the NBA and not other pro leagues. Michael has written a long and persuasive response to my query . . . In a nutshell, his argument is that the benefits of tanking are higher in the NBA and the costs are lower. Seems persuasive to me . . ."

"Four columns I really enjoyed this week: 4. The Sports Law Blog did a good job of breaking down every possible reason why tanking occurs in the NBA and not other sports. I think it's a little more simple: The NBA season is so damned long, it lends itself to throwing in the towel ... especially if there's a franchise rookie coming out. But I liked all their theories."

Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2007-04-09 - 13:02:00

New this week:
Eoin Carolan, The new WADA Code and the search for a policy justification for anti-doping rules, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2006)

Salil K. Mehra & T. Joel Zuercher, Striking out “competitive balance� in sports, antitrust, and intellectual property, 21 BERKELEY TECHNOLOGY LAW JOURNAL 1499 (2006)

Scott B. Shaprio, Comment, Who decides institutional choice in determining a performance enhancing drug policy for the NFL, 7 WYOMING LAW REVIEW 183 (2007)

Sharianne Walker & Michael Enz, The impact of professional sports on the local economy, 29 WESTERN NEW ENGLAND LAW REVIEW 149 (2006)

Posted By : Geoffrey Rapp

Harvard Law School Conference on Title IX

Message posted on : 2007-04-08 - 13:12:00

On Friday, April 13, the Harvard Journal of Law and Gender will host a conference entitled "Changing Social Norms? Title IX and Legal Activism." Title IX, of course, refers to Title IX of the Education Amendments of 1972 passed by Congress and signed by President Richard M. Nixon on June 23, 1972. The law requires that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Title IX has been a frequent topic on this blog and in sports law discussions across the country. There is also an excellent blog, Title IX Blog, devoted to it. Generally speaking, Title IX has been praised for promoting gender equity in sports, helping to reverse long-standing discrimination against female athletes, and, more broadly, counteracting prejudices toward women, which has in turn encouraged more women to play sports. But Title IX has also been criticized for effectively requiring schools to spend fewer resources on non-profitable men's teams, such as cross country and wrestling, or having to eliminate those teams altogether in order to comply with Title IX's three part test.

The Harvard Law conference will explore how Title IX might be used to combat patterns of sexual harassment found at many schools. It will also consider the broader effects of Title IX on school athletic programs. Panelists will include, among others: Verna Williams (lead counsel on Davis v. Monroe County), Diane Rosenfeld (Harvard Law Lecturer on Law), Nancy Lieberman (former college, Olympic, and professional basketball player and member of the Basketball Hall of Fame) and Coach Roderick Jackson (a pioneer in coaches' rights under Title IX and petitioner in Supreme Court case: Jackson v. Birmingham). For a complete list of speakers and topics, click here.

It should be a great event, and I'm looking forward to reading a recap of it. If you are interested in attending or would like more information, please visit the Harvard Journal of Law & Gender website. If you have any questions, please e-mail either of the conference chairs: Lexie Kuznick at akuznick@law.harvard.edu or Meg Ryan at mryan@law.harvard.edu.

Posted By : Michael McCann

Upcoming Symposiums

Message posted on : 2007-04-06 - 09:20:00

There are two sports law symposiums of significant interest taking place on Friday, April 13th.

The Journal of Sports Law and Contemporary Problems at DePaul University College of Law is hosting its 2007 Spring Symposium. I am delighted to be a guest speaker on two panels addressing challenges in regulating athletes' and coaches' behavior both on and off the field. More information regarding this symposium is here.


University of Missouri-Kansas City School of Law is hosting its Inaugural Sports Law Symposium entitled, "Emerging Legal Issues Affecting Amateur & Professional Sports." This symposium features some prominent sports law experts, and Myles Brand is the luncheon key note speaker. More information regarding this symposium is here.

Posted By : Rick Karcher

The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant?

Message posted on : 2007-04-05 - 20:30:00

Last night, the 23-50 Boston Celtics, holders of the second worst record in the NBA, were set to play the 25-48 Milwaukee Bucks, holders of the third worst record. At first blush, it seemed like an utterly unimportant, uninteresting, end-of-the-season match-up between two of the worst teams in the NBA. Indeed, it was probably one of those games where it's tough to give away your tickets.

But there was something about the match-up that gave it real, even profound, meaning: a deep suspicion that both teams were determined to lose the game to help secure the league's second worst record. Setting aside the merits' of those suspicions--which were detailed on Celtics RealGM board, Celtics Blog, and AOL's Bucks Fanhouse, among many other websites--why would either team want to finish the season with a worse record?

Here's why: the team with the second worst record will have a 38.9% chance of landing the first or second pick in the NBA lottery (to be held on May 22), while the team with the third worst record will have a 31.5% chance of landing one of those two picks. In a draft that will feature two likely-franchise players, Greg Oden and Kevin Durant, and 58 other guys, getting the first or second pick means perhaps more in this draft than any other. And with only a handful of games left in the NBA season, each team "competing" for Oden and Durant really can't afford to win--or so the tanking theory goes.

But where is the evidence that Doc Rivers and Larry Krystkowiak were actually coaching their teams to lose? Could a coach really tank a game in a way that isn't embarrassingly obvious? And why would a coach, who presumably cares about his career record and has some pride, want to lose? I could certainly see a team owner wanting to lose, and perhaps also a general manager who has taken a long term view, but the more a coach loses games, the more likely he will be fired . . . unless, I suppose, he has been told by management that he will only be kept if he loses.

There is also some "evidence" that each team has adopted a lose-now/win-later strategy. For instance, the Celtics have shut down for the season their three best players, Paul Pierce, Al Jefferson, and Wally Szczerbiak. By most accounts, Pierce and Jefferson are suffering from either minor, lingering injuries or lack of conditioning issues, and both could probably play if needed. Making matters more suspicious, Doc Rivers has already been accused of tanking a recent game: it was against the similarly-dreadful Charlotte Bobcats, where his team was up by 16 points going into the fourth quarter, but then, at the start of the fourth quarter, he inexplicably put in a very strange and not good line-up that may have led to a stunning come-from-behind Bobacats win in Boston.

One might also say the Celtics have a "history" of tanking, as former coach and GM M.L. Carr admitted the team had tanked in the 1996-97 season in hopes of landing the first pick and selecting Tim Duncan. As I wrote last April in a post on the lottery system:
Perhaps the most recent and egregious example of purposeful losing by an NBA team occurred in the 1996-1997 season, when teams were jockeying for the worst record, in hopes of securing the coveted first pick in the draft, which would be used to select Tim Duncan. At the time, the Celtics were coached by M.L. Carr, who was also the team's general manager. The team lost 67 games, thus securing the worst record (but it didn't win the lottery). Having watched a number of their games that season, it seemed that they always found a way to lose. Five years later, Carr would assert that he was indeed trying to lose games:
Carr suggested his last season as Celtics coach in 1996-97, during which the team suffered through a franchise-worst 15-67 record, was a tank job designed to deliver the incoming coach (Rick Pitino) with strong draft position. "That was part of the orchestration," said Carr, an obvious indictment of the entire organization and its part in encouraging a losing season in an attempt to get the first overall pick (Tim Duncan). As it turned out, the Celtics lost out on Duncan and settled for the third and sixth overall picks. From: Mark Cofman, Celtics Dismiss Outspoken Carr, Boston Herald, Feb. 1, 2001, at 84.
The Bucks have also come under fire on the tanking question. Most notably, in what some see as a direct response to the depleted Celtics' lineup, the Bucks did not play Michael Redd, Brian Skinner, or Michael Williams last night, allegedly due to injuries or knee soreness.

Still, I find it hard to believe that a coach--at least one who is not also the GM--would try to lose a game. But let's say the suspicions are true. What should the NBA do about it? Or should it do anything? If we assume that tanking is a problem, here are some possible ways to counter-act it (although each brings its own can of worms):

1) No Weighted Lottery: Give every lottery team an equal shot at winning the lottery. So each of the 14 lottery teams would have about a 7% chance of landing the first pick. This has been proposed by others, including Ankur Amin of Associated Content and CochiseTX of digg.

Upside
: really bad teams would no longer tank, and it's unlikely that a team on the cusp of making the playoffs would try to instead make the lottery for a 7% of getting the first pick, although that could be a slight concern.

Downside
: really bad teams may no longer be able to re-build through the draft, and some franchises could linger in lousiness for many seasons, thus damaging local fan interest in the team and probably the NBA, too. I could see the NBA opposing this idea on grounds that it would damage the joint-venture quality of the league and its owners.

2) Inverse Weighted Lottery: Give teams that just missed the playoffs a better chance at winning the lottery. This plan was offered by Sports Law Blog reader Collin in response to my post last April.

Upside
, per Collin: "It would not substantially punish the lower ranked teams (since they've got much deeper seated problems) and would also increase the chances that a high draft pick could make a difference (by playing on a team where he might be the missing piece) AND would make teams play harder at the end of the season."

Downside
: see downside for solution #1, except it would be presumably even greater here.

3) Competitive Play Complaints: A Joint League and Player Investigative Committee on Competitive Play. Let's say another team suspects that the Celtics and Bucks are trying to lose. How about if that team could file a complaint with the Commissioner and ideally also the Players' Association Director requesting that the NBA and NBPA investigate whether there is any evidence of tanking. If the complaint has reasonable probability, a committee of league officials and players' officials could conduct follow-up interviews with players, coaches, and maybe also local media and reputable bloggers. Following those interviews, if sufficiently damming evidence is found and verified, the tanking team could be punished by losing the opportunity to land the first or second pick (with an appeal process worked in).

Upside: it might dissuade some teams from tanking, if for no other reason than to avoid the embarrassment of having a competitive play complaint filed against them. It would also avoid some of the more draconian and unintended consequences found in ideas #1 and #2.

Downside: hard to show intent to lose; what kind of rules of evidence would apply?; it would seem to make the game more litigious and most people don't like legal-like processes; not sure who would support this; and the commissioner probably already has this power (although he doesn't seem to use it).

4) Eliminate the NBA Draft altogether; Every Rookie is a Free Agent.

Upside: See Alan Milstein's classic post on Sports Law Blog--perhaps the best post ever on this blog--Reggie Bush Sweepstakes. That post, which was published in December 2005, was obviously on the NFL draft, but the same arguments more or less hold true with the NBA draft.

Downside: Not going to happen, and while the draft is indeed primarily designed to prevent amateur players from bargaining with multiple NBA employers (and thus reducing their earning capacity), it also, at least to some degree, does redistribute talent in a way that benefits the league as a whole.

Any thoughts or reactions or better ideas?

Update: Other Takes

In addition to the outstanding comments to this post, several writers on other websites/blogs have responded:

"Michael McCann on tanking. One way to make sure it doesn't happen: make every rookie a free agent. Worth discussing! I'd add some wrinkles like a salary cap, and an ability for teams to pay local players slightly more (calm down, we could carve up the nation into regions with similar populations) to inpsire homegrown pride."

"The utilitarian says that a team with more talent is obviously better than a team with worse talent. If losing when you have a mediocre-at-best team now means that you can have a contender down the line, you do it. Norm-diffusion is for wusses. Kevin Durant, Greg Oden... they know how to win. Put them on a losing team. They'll show you how winning cultures are really made. A utilitarian tanks with no qualms (so long as the benefits exceed the costs, of course)."

"The Sports Law Blog, a long-time Antitrust Review favorite, discusses the fascinating issue of ensuring competition among NBA teams (ensuring competitive games, not ensuring competition for the first pick in the draft by tanking games) (the comments also deal with some antitrust (non)issues)."

Posted By : Michael McCann

"The Inexorable Zero" and Female Umpires in Major League Baseball

Message posted on : 2007-04-05 - 12:27:00

Last week, 30-year old Ria Cortesio became the first female to umpire a major league exhibition baseball game since 1989, when Pam Postema--who would later sue, and settle out of court with, Major League Baseball and Triple A baseball for sex discrimination after Triple A baseball declined to renew her contract--became the first female to ump a big league exhibition game. Based on publicly-available accounts, Cortesio did a good job umpiring an afternoon match-up between the Chicago Cubs and the Arizona Diamondbacks.

Cortesio is currently a Double-A umpire in the Southern League, where she has been for the last 5 years since starting her umpiring career at age 21, and like other minor league umpires, she was called upon to umpire one of the many spring training games on this year's schedule. No female has ever umpired a regular season big league game, just like no female has ever refereed an NFL game or officiated an NHL game (in contrast to the NBA, where two women, including Violet Palmer whom we've blogged about, are referees).

Over on Workplace Prof Blog, Ole Miss law professor Paul Secunda has an excellent post on the possible presence of sex discrimination in explaining why Major League Baseball has never hired a female umpire for a regular season game. He writes about the employment discrimination concept of "the inexorable zero," established by the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324 (1977). As Professor Secunda details,
[I]n pattern and practice group employment discrimination cases, courts rely on statistics to determine whether an employer has a standard operating procedure of discriminating against certain groups, like women. In such cases, when no women have been hired, as is the case with female major league umpires, "fine tuning of the statistics [do not] obscure the glaring absence of minority [employees].... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from ‘the inexorable zero'"). See Teamsters, 431 U.S. 324, 342 n.23 (1977).
As a result, Professor Secunda writes, even without knowing how many females have applied and were rejected by MLB for umpiring jobs--which would normally be crucial data in a sex discrimination claim--MLB
[C]annot hide the fact that [it] has not hired ONE female major league baseball umpire in its entire existence . . . based on this Slate article and other articles on this topic I have read in the press, that there are at least SOME qualified females who could be MLB umpires in the relevant labor pool, I think the inference of discrimination is appropriate here.
The Slate article to which Professor Secunda refers discusses a successful lawsuit by a secretary named Bernie Gera, who in 1973 won a five-year-long lawsuit for the right to umpire a Single A game. Also, as I noted earlier, Pam Postema sued for sex discrimination after she was let go in 1991 (allegedly--according to Michelle Tsai of Slate--for too often throwing players out of games) and settled out of court.

In addition to possible legal claims, I wonder about broader social changes in how we treat women that might enable more women to obtain officiating jobs in the MLB and other pro sports leagues. Marquette law professor Scott Moss illuminates that point in his reply to Professor Secunda's post:
Another reason Paul's suspicion of gender discrimination seems valid is the blatant nature of baseball players' and officials' discrimination against the few women serving as sports reporters and baseball teams' front office officials. You hear comments like "women don't belong here" and harshly misorynistic attacks. So it's not a stretch to suspect that one reason there are so few female umpires is that same anti-women bias.

It's true that . . . probably few women apply or get the requisite training (e.g., a background in high school or college baseball). But "there aren't many women in this field at all" isn't just an alternative explanation to "they're keeping women out"; historically, fields with few women tend to feature more discrimination, precisely because women are seen as "outsiders" who "don't belong." A lot of the really bad cases of physical harassment, for example, tend to be about "the first women pipefitter at XYZ Corp." or "the first women firefighter in the City of XYZ," etc.

So is the absence of female officials in Major League Baseball and other pro sports leagues a reflection of discrimination by MLB and those other leagues, or is it a more cultural/social problem in how we treat and regard and women? Or is it something else?

Posted By : Michael McCann

Blue Jays On Top in Player Development Study

Message posted on : 2007-04-04 - 20:41:00

Baseball America (BA) just completed a study on the rosters of all 30 MLB organizations and the results revealed that the Toronto Blue Jays have outperformed all other teams over recent years in player development (Matt Eddy, Blue Jays Finish On Top of Roster Study, 3/30). BA quantified the success of developed players by measuring playing time--plate appearances for hitters and innings pitched for pitchers. Players on 40-man rosters as of mid-March and who signed since 1995 were considered, with each player credited to his signing organization. In order to combine the contributions of batters and pitchers, BA credited a player with a "season" for each batter(502 PA) or ERA (162 IP) title he qualified for.
Posted By : Rick Karcher

New Sports Law Scholarship

Message posted on : 2007-04-02 - 10:05:00

New this week:
Richard T. Karcher, The use of players' identities in fantasy sports leagues: developing workable standards for right of publicity claims, 111 PENN STATE LAW REVIEW 557 (2007)

Joshua Peck, Note, Last resort: the threat of federal steroid legislation--is the proposed legislation constitutional?, 75 FORDHAM LAW REVIEW 1777 (2006)

Posted By : Geoffrey Rapp

Another Instance of Point Shaving?

Message posted on : 2007-03-31 - 12:14:00

One benefit to professional athletes making substantial money is that the threat of players throwing games or shaving points at the behest of gamblers is diminished (even if not eliminated, see Rose, Pete). Gambling was a genuine threat to the integrity of professional sports in the early days of professional sport, particularly baseball, as Dean Roger Abrams describes in a forthcoming book called Dark Side of the Diamond.

But the risk remains in college sports, where players' genuine financial need, combined with access to gambling and gamblers, gives players an incentive to take money in exchange for poor performance. The latest example involves federal criminal charges filed last week against University of Toledo running back Harvey "Scooter" McDougle Jr. for participating in a bribery scheme to influence sporting events. Story here; some comments here. Scooter allegedly acted as go-between a gambler known as "Gary" and various Toledo football and basketball players, who took cash, cars, phones, and other gifts.

College basketball has had its share of point-shaving scandals: the 1948-49 Kentucky Wildcats, the 1950-51 CCNY team (that won both the NCAA and NIT championships), Boston College in the late 1970s, and the 1994 Arizona State Sun Devils. But there have been fewer examples of football players tanking in this way, probably because one (or even a few) players cannot alone affect the outcome of a game. The only example I recall off-hand (I say with the pride of an alumnus) involved former a Northwestern running back named Dennis Lundy, who deliberately fumbled on the one-yard-line in a 1994 game against Iowa to keep NU from covering the spread (he had a $ 400 bet on the game). Lundy was sentenced in 1999 to one month in prison for lying to a grand jury.

Scooter McDougle admits he accepted gifts from Gary, but insists it never changed the way he played to affect the outcome of games. That becomes the key fact the prosecution must prove. We shall see.

Posted By : Howard Wasserman

the disappearance of the Activist Athlete

Message posted on : 2007-03-30 - 23:15:00

Where have the Activist Athletes gone? In the 1960s and 1970s, Kareem Abdul Jabbar, Bill Walton and Muhammed Ali (amongst many others) advocated, even agitated for political change. A few days ago, Professor Wasserman suggested in connection with HBO's "The UCLA Dynasty" that the Activist Athlete has waned in recent years, due in part to college athletes being less politically involved than they used to be, social activism now coming from the political right (i.e. devout Christian athletes) as opposed to the political left, and that coaches, in particular Coach Wooden not allowing political expression on the playing field or court.

Folks may wonder why athletes today refuse to take strong political stands when the stages that they occupy would allow great influence. Certainly it is not for a lack of controversial political activity. The nation is currently embroiled in an unpopular war, much like Vietnam years ago. Issues of race and gender continue to fill the airwaves, the newspapers and the law reviews.

After reading about Tiger Woods in this week's Sports Illustrated, it seems abundantly clear why the Activist Athlete has disappeared: Corporate Endorsements (and the potential for superstar athletes to become “billionaires�). Woods' states in SI when asked about his business acumen and decisions: “It all depends on how much risk you want to take on. . . The things I do are very conservative. . . . I guess you don't become billionaires by making bad decisions.� Corporate dollars were far less available and significant in the years of the activist Lew Alcindor, Walton and Cassius Clay.

Recall, that Tiger Woods refused to hold Fuzzy Zoeller's feet to the fire, when Zoeller made fairly egregious racist comments in connection with Tiger as a young professional. Recall that Michael Jordan sprinted away from political controversy during his career, in particular when the issue of child labor abuse and Nike's manufacture of “Air Jordan's� overseas surfaced. In fact, it is almost stunning today to hear an athlete take a controversial position. Several years ago Kellen Winslow, Sr. talked openly about affirmative action during his NFL Hall of Fame induction ceremony. Eighteen years ago John Thompson, Jr., boycotted a Georgetown basketball contest while the coach to protest NCAA admissions standards he deemed harmful to young African American athletes.

It is difficult to imagine that Kellen Winslow, Jr. would strike any type of controversial political position today. Similarly, John Thompson III would stun pundits were he to advocate a controversial position in the manner that his father did.

The allure of corporate sponsorship dollars keeps the modern Activist Athlete in check. Why would Tiger Woods risk his fortune? Why would Michael Jordan risk his empire? Why would Larry Bird risk his legacy? The fear of being seen as controversial or risky keeps Activist Athletes from voicing activist positions. I fear that the race for corporate dollars not only silences athletes that might be politically motivated, but also discourages the modern athlete from even carefully examining controversial issues of the day.

That said, Kobe Bryant, who was dropped by several sponsors after allegations arose as to sexual battery, seems to have now been forgiven by corporate America for the time being . . .

Posted By : dre cummings

Race Attributions and Georgetown University Basketball

Message posted on : 2007-03-30 - 18:44:00

Earlier this afternoon, Jon Hanson and I posted on The Situationist a piece entitled Race Attributions and Georgetown University Basketball. Our piece is inspired by Sean Gregory's new article in Time Magazine on the sociological role of race in how fans regard the Hoyas.

Using social psychology, Jon and I examine why so many doubted how well the Hoyas would be able to implement the "complex, precise" Princeton Offense, as directed by John Thompson III after he became coach of the Hoyas in 2004.

We connect those doubts to stereotypes about white persons playing basketball, and the larger issue of how implicit attitudes cause us, often unknowingly, to interpret another's behavior based on his or her race.

We hope you check out our post on The Situationist.

Posted By : Michael McCann

Rethinking Contact Between NBA Executives and Parents of College Players

Message posted on : 2007-03-29 - 06:10:00

Last week, I blogged about the NBA fining the Boston Celtics because their executive director of basketball operations, Danny Ainge, sat next to the mother of University of Texas star Kevin Durant during a recent game. Durant will likely be the second player selected in this year's NBA draft, after Greg Oden, and the Celtics currently have the second worst record in the NBA (however, because of the NBA's weighted lottery system, the team with the second worst record only has a 38.9% chance of landing one of the first two picks). As we examined, the NBA has a strict liability policy on team executives sitting next to family members of amateur players. That's true even though the "desired" players among them are not going to become free agents out of college, since they will be drafted and their NBA employment rights will be controlled by whatever team drafts them. In other words, NBA general managers can't "recruit" prospective draft picks like college coaches can recruit high school players.

Sports Law Blog reader and fellow Celtics fan Matthew Dinan e-mails a fascinating question that highlights a peculiar implication of the NBA's strict liability rule:
Given that Celtics head coach Doc Rivers is a parent of a potential NBA player--point guard Jeremiah Rivers of Georgetown University--could the NBA fine Danny Ainge and Doc Rivers for sitting next to each other, even though it is a prerequisite of their job?
I know the NBA would say it makes an exception in this instance since Ainge and Doc Rivers work together in running the Celtics, but it brings to mind other potential instances that might also, if less clearly, warrant exception.

For instance, say Danny Ainge happens to be friends with former tennis star Yannick Noah. Can they not sit next to each other at a game because Noah's son, Joakim, will be a top 10 pick in this year's draft?

Or how about if Ainge sits next to the parents of BYU basketball star Keena Young to talk about how their sons play together on the same team--Austin Ainge also plays for BYU. Since Young might be drafted next year, would Ainge's seating be a problem with the NBA? Should it be a problem? Where do we draw the line?

Taking it a step further, what's really the point of this rule? It's not like college players become NBA free agents right out of college (at least the draft-worthy ones don't). Can Ainge really brown-nose his way into getting Greg Oden or Kevin Durant or Roy Hibbert or whomever? No. They're subject to the draft. And they will clearly be drafted.

And it's not like getting to know the parents would even help to sign a drafted player--the NBA has a rookie salary scale that determines how much a draft pick will earn based on when he is drafted.

I suppose, as we discussed in last week's post, the NBA might be worried about Danny Ainge encouraging underclassmen to declare. But would that even benefit him in a draft situation, when there are 29 other teams drafting? I guess one could say that every additional top player eligible to be picked makes the draft deeper for all teams, but again, the benefit there seems diffuse . . . unless, of course, you are picking #2, and you know that Greg Oden will go #1, and there is a huge drop-off in talent from Kevin Durant to the next best available player, so you better hope that Durant declares for the draft. Maybe David Stern was right after-all to fine Ainge!

Posted By : Michael McCann

FSU College of Law Entertainment, Arts, and Sports Industry Breakfast

Message posted on : 2007-03-28 - 21:56:00

The Entertainment, Arts & Sports Law Society of Florida State University College of Law will be hosting the Entertainment, Arts, and Sports Industry Breakfast this Saturday, March 31, at 8:30 a.m.

I am honored to be one of the speakers at the breakfast, which will also include former Auburn head football coach and current ABC Sports broadcaster Terry Bowden, among other distinguished speakers. Details for the event are below, and if you are interested in attending, please click here.

Entertainment, Arts & Sports Law Society

presents the


Entertainment, Arts, and Sports
Industry Breakfast

Saturday, March 31, 2007 8:30 a.m. to 1:30 p.m.
Florida State University, College of Law, Rotunda
425 W. Jefferson St., Tallahassee Florida

All Students and practitioners are welcome!!! Light Breakfast and Refreshments will be served

Terry Bowden, 1993 Coach of the Year, College Football Analyst, Motivational & Keynote Speaker, and FSU College of Law Alumnus

Michael McCann, Sports Law Professor, Representative of Maurice Clarett against the NFL, and Chair-Elect of the Association of American Law School's Sports Law Section

Dr. Thom Park, National Expert on Coaching Contracts

Jan Michael Morris, Representative of Venus & Serena Williams' Father

Steven Newburgh, Cast Attorney for Reality Television's Miami Ink

Rob McNeely, Entertainment Law Professor & Former Creed Counsel

Sponsored by Fowler White Burnett, Attorneys at law

Thanks to Mike Giraud, Shane Costello, and Ryan White for their excellent work in putting this event together.

Posted By : Michael McCann

March Madness and Groupism

Message posted on : 2007-03-27 - 12:52:00

Jon Hanson and I have a post up on The Situationist on what March Madness and, more generally, our team allegiances and group affiliations, might say about us and human behavior.

We believe that the very same attributions that drive us toward caring so deeply about our schools and teams emerge in many other life contexts, some good, some not so good.

We hope you check out our post.

Posted By : Michael McCann

UCLA's Dynasty

Message posted on : 2007-03-27 - 11:31:00

Last night, I watched the HBO Sports documentary The UCLA Dynasty, which recaps (in a too-short 60 minutes) UCLA's run of 10 NCAA titles in 12 years under Coach John Wooden. Definitely worth a look when it re-airs (if you have not TiVoed it).

The show does a great job showing how the program played against the backdrop of the social and political upheaval of the late 1960s and early 1970s on issues of civil rights and Viet Nam. And it shows how activist and politically involved many of the players (including star players such as Lew Alcindor and Bill Walton were. For example, I never knew that Walton was arrested at an anti-war rally while in school.

Interestingly, Coach Wooden comes across as having been somewhat supportive of his players' activism, at least out of season. Wooden had strict short-hair/no-facial-hair rules during the season, but, for example, allowed the African-American players to express identity growing it away from the season. Similarly, in the recap to the incident where Walton was arrested, Wooden expresses support of the player's right to speak out, but only asks him to "keep an open mind" and to think through the consequences of his actions.

Perhaps this all is a product of its time in three senses.
First, athletes (especially college athletes) today are, as a whole, far less politically involved than they were--but so are college students generally.
Second, whereas the activism of the late 60s/early 70s came on the political left, most athletes' activism today comes from the political right, especially among the many devoutly Christian athletes.
Third, the activism never made its way onto the floor, probably because Wooden would not have allowed it. On the other hand, those athletes today who do take a political stand--Carlos Delgado and "God Bless America," Toni Smith and the national anthem, the role of God and Christ in a player's victory--all are on display on the playing field.

Posted By : Howard Wasserman

Issues in College Sports Lecture Series at the University of Memphis

Message posted on : 2007-03-26 - 00:07:00

The University of Memphis Sport and Leisure Commerce program is in the midst of hosting its 2nd Annual Issues in College Sports Lecture Series. The series features coaches, scouts, agents (including Jimmy Sexton), sports business professors, and sports law professors, among other distinguished guests. The series has been put together largely through the excellent work of University of Memphis Professor Richard Southall (pictured to left), who we recently blogged about in regards to the White v. NCAA lawsuit, and some of his students like Carrie Sordel and Charley Fausey. Here is a schedule of upcoming events (and if you would like to attend any of these discussions, directions to the University of Memphis are available at this link and all of the events will be held in Room 124 of Ball Hall).

Monday, March 26th, 4:00p.m. - The Business of College Sports. (Ryan McPhail, Titus Jackson – student moderators)

Dr. Ronald Dick – Duquesne University

Dr. Mark Nagel – University of South Carolina

Dr. Kadie Otto – Western Carolina University

Mr. Jimmy Sexton – Memphis, TN

Dr. Nathan Tomasini – The University of North Carolina at Chapel Hill


Friday, April 6th, 4:00p.m. - Division I College Recruiting: The good, the bad, and the ugly. (Ryan Ivey – student moderator)

Coach Jimmy Adams – Head Boys Basketball Coach, Raleigh-Egypt High School

Mr. Chad Alexander - Midwest Area Scout, Baltimore Ravens

Mr. Bobby Burton - Chief Operating Officer and Editor-in-chief Rivals.com

Dr. Joe Luckey – Director, Center for Athletic Academic Services, The University of Memphis

Dr. Fritz Polite – The University of Tennessee-Knoxville


Friday, April 13
th, 4:00p.m. - Congress, Intercollegiate Athletics, and Higher Education: Is college sports a tax-exempt enterprise or an unrelated business? (Shawn Fayard, Walt Barton - student moderators)

Prof. Paul Anderson – Marquette University Law School - National Sports Law Institute

Prof. John Colombo – The University of Illinois Law School

Prof. Michael McCann – Mississippi College School of Law

Dr. Dave Ridpath – Ohio University

Prof. Linda Sharp – University of Northern Colorado

Dr. Ellen Staurowsky – Ithaca College

Mr. Welch Suggs – University of Georgia


Friday, April 20th, 4:00p.m. - White v. NCAA: Greed or Monopsony – A discussion of the case's legal merits. (Carrie Sordel, Dawnyell Fletcher – student moderators)

Prof. Paul Batista – Texas A&M University

Mr. Tony Bonds – Suntrust Financial

Mr. Patrick Byrne – The University of Memphis

Mr. Ramogi Huma – College Athletes Coalition

Dr. Allen Sack – The University of New Haven


Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2007-03-23 - 21:48:00

New this week:
M. Christine Holleman, Recent Development, Fantasy foot-ball: illegal gambling or legal game of skill?, 8 NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 59 (2006)

Aaron Levy, Note, A risky bet: the future of pay-to-play online fantasy sports, 39 CONNECTICUT LAW REVIEW 325 (2006)

Paul D. Trumble, Comment, “Knickel� and dime issues: an unexplored loophole in New York's genetic discrimination statute and the viability of genetic testing in the sports employment context, 70 ALBANY LAW REVIEW 771 (2007)

Posted By : Geoffrey Rapp

Brooklyn Law Prof Takes on the NFL

Message posted on : 2007-03-21 - 20:16:00

Wendy Seltzer, a visiting assistant professor at the Brooklyn Law School, is embroiled in an intellectual property battle with the National Football League. Seltzer has been detailing her battle with the league over her posting of an NFL clip from Youtube on her own blog for a while. Yesterday, ars technica picked up the story, which has since been reported in the mainstream media (I heard about this through fark).

No, Seltzer didn't post a clip of a hard hit, a long pass, or an impressive run up the middle. Rather, she posted the NFL's copyright notice, which most football fans have seen numerous times on TV:
This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited.
According to Seltzer, she wanted to demonstrate to her students that, from a legal perspective, the NFL's statement was false. Namely, the NFL's warning fails to make any mention of "fair use."

Likely unaware that it was dealing with an Electronic Frontier Foundation lawyer, the NFL pursued its Digital Millenium Copyright Act remedy, asking Youtube to take down the clip. Seltzer filed a counter-notification, claiming that her posting represented fair use.

As a blogger who regularly lifts copyrighted images (but so far, no video clips) for educational purposes, it may be obvious that my sympathies lie with Professor Seltzer. I've long thought that law professors who blog could claim a fair amount of fair use protection for images (those blogs sponsored by deep-pocketed publishers seem to avoid possibly copyrighted images). However, I have to admit that were anyone to ask me to take down a picture the rights to which they own, I would probably pull it off the blog.

Posted By : Geoffrey Rapp

Close Encounters of The Stern Kind: Danny Ainge Fined

Message posted on : 2007-03-20 - 00:07:00

The NBA has fined the Boston Celtics $30,000 for general manager Danny Ainge unintentionally sitting next to the mother, step-father, and grandmother of University of Texas freshman Kevin Durant, who will likely be the second player selected in the 2007 NBA Draft, during the Big 12 tournament a couple of weeks ago. They were all seated five rows behind the Texas bench. NBA rules prohibit team executives from contact with college players until they officially declare for the draft.

But 1) was that rule actually violated; and 2) even if Ainge violated the rule, does it make much sense?

Let's take the first question first. It should be noted that Ainge sat next to Durant's mom and not him. The rule expressly prohibits contact with the college players, although the NBA is interpreting it to also include family members and "advisers." Notwithstanding what I think about the rule, I believe the NBA is making the correct interpretation: it would seem to be in the spirit of the rule for it to extend to immediate family members of the player, otherwise there would be a rather jarring loophole.

It should also be noted that Ainge's contact with Durant's family was unintentional; their seats for the game happened to bring them to the same place, five rows behind the Texas bench. Having said that, the NBA's rule appears to be based on strict liability; intent, or even a lesser element like recklessness or negligence, does not seem to be required.

But the second question is perhaps more intriguing: Why does this rule even exist? After-all, it's not like Ainge, or any NBA executive, could actually recruit Durant by speaking with him or his mom. That's because the NBA, like other major sports leagues, employs an amateur draft, meaning college players are not free agents. Moreover, even if the Celtics tried to lose enough games to secure the second worst record, which they presently "enjoy", they may not wind up with second overall pick--and as all of us Celtics fans know, sometimes a weighted lottery doesn't work out the way it should (i.e., Tim Duncan should really be a Celtic, but isn't. I still haven't gotten over that). In fact, securing the second-worst record only provides the Celtics with a 38.9% chance of landing one of the top two picks.

Now, I suppose NBA Commissioner David Stern could say that by sitting next to Mrs. Durant, Ainge might somehow try to persuade her that if the Celtics don't land the second pick, then she should convince her son to holdout from whichever team drafts him and then demand a trade to the Celtics. Or maybe Durant's grandmother is really the influential one, and Ainge could try to employ the same plan with her. Or maybe its the step-dad. Or maybe these are far-fetched ideas that sound in paranoia, rather than reality.

Another possible and perhaps more legitimate NBA concern: Danny Ainge might encourage Mrs. Durant to convince her son to declare for the NBA draft, rather than to stay at Texas. This concern seems more plausible, especially since the NBA seems intent on protecting the NCAA and its member schools, which obviously make a ton of money off the free labor of these players. Henry Abbot over at his new home for TrueHoop--ESPN.com (congrats Henry)--explains in his post "The Myth of Amateurism" why this rationale may not be the most meritorious, even if it is commonly mentioned.

One last contextual point: the fining of the Celtics for Danny Ainge's "inappropriate contact" is the latest in a string of recent NBA fines of NBA executives for comments or actions related to potential draft picks. Namely, the Charlotte Bobcats were fined $15,000 for comments made by co-owner/CEO Michael Jordan regarding Durant, and the Golden State Warriors were fined $15,000 for comments made by coach Don Nelson about Durant and presumptive number one overall pick, Greg Oden.

Posted By : Michael McCann

Baseball and the Brain

Message posted on : 2007-03-19 - 10:26:00

Interesting David Brooks column in The Times today, talking about the way in which baseball players depend almost exclusively on the unconscious brain to play the game and how baseball has developed drills to reinforce those unconscious responses.
Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-03-19 - 10:05:00

New this week:
Glenn George, Playing cowboys and Indians, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 90 (2006)

John A. Gray, Sports agent's liability after SPARTA?, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 141 (2006)

Jonathan Jenkins, Note, A need for heightened scrutiny: aligning the NCAA transfer rule with its rationales, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 439 (2006)

Peter Kreher, Antitrust theory, college sports, and interleague rulemaking: a new critique of the NCAA's amateurism rules. 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 51 (2006)

Andrew E. Rice, Eddy Curry and the case for genetic privacy in professional sports, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2006)

Ronnie Wade Robertson, Comment, Tilting at windmills: the relationship between men's non-revenue sports and women's sports, 76 MISSISSIPPI LAW JOURNAL 297 (2006)

Leena M. Sheet and A. Benjamin Katz, Protecting rights in videogames: next generation licensing, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 124 (2006)

George D. Turner, Note, Allocating the risk of spectator injuries between basketball fans and facility owners, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 156 (2006)

Posted By : Geoffrey Rapp

RIP, Commissioner Bowie Kuhn

Message posted on : 2007-03-17 - 12:09:00

I should have posted on this yesterday, but I came late to the New York Times obit of former Commissioner of Major League Baseball Bowie Kuhn, who died Thursday at age 80.

Kuhn's name is familiar to most law students because he was the named respondent in Flood v. Kuhn, the 1971 case in which the United States Supreme Court rejected former player Curt Flood's challenge to the Reserve System, holding (actually, reaffirming an 80-year-old holding that the Court thought was wrong) that Major League Baseball was not subject to federal antitrust laws. For both student and professor, that opinion is either fun or ridiculous (depending on one's point of view) because all of Part I was an ode, written by Justice Blackmun, to the history and majesty of baseball. It included a listing of many great players of the pre-WW II era. Chief Justice Burger and Justice White refused to join that part of the opinion and, the story goes, Justice Marshall demanded that Blackmun include some Negro League players. Dean Roger Abrams, one of the leading sports-law scholars, recently wrote a paper on the players listed in the opinion.

What I think is noteworthy about Bowie Kuhn is that he may be the last independent baseball commissioner to serve for a substantial period. He was willing to wield his "Best Interests of Baseball" powers against the owners who, as a legal and practical matter, employ him. As the Times story describes, Kuhn repeatedly took on owners in a way I am not sure Bud Selig or whomever replaces him two years from now will be willing or able to do. Most notably, Kuhn wielded his "Best Interests" powers to void a series of deals when Oakland A's owner Charlie Finley tried to sell off the star players from his championship teams to avoid losing them to the early days of free agency.

Kuhn's commissionership is historically significant (arguably the second most historical, after Landis and before Selig) because of the massive changes that occurred on his watch. Some were for good (increasing attendance, increased television viewership, a fair labor system), some were for ill (multiple work stoppages and lingering racial tensions in the game) and some were for very ill (have you checked out the uniforms teams wore in the 1970s?).

Posted By : Howard Wasserman

On the Limits of Analogies Between Baseball and the Law

Message posted on : 2007-03-14 - 19:26:00

I love baseball. And I love law. And I like judges and lawyers who share those twin passions. But the repetitive analogies between umpiring and judging are getting old and inaccurate very quickly.

The latest comes from Justice Samuel Alito (UNRELATED ASIDE: When Alito was a judge on the United States Court of Appeals for the Third Circuit and I was a law clerk for a judge on that court, Alito swore my co-clerks and me onto the bar). Anyway, Justice Alito was in St. Petersburg, recently to throw out the first pitch at a Devil Rays-Phillies game (Alito is a life-long Phillies fan, but donned a D-Rays jersey). Rick Garnett has the photo and story here. And I agree, Rick: Alito has pretty good form.

But the story describes Alito giving a talk at a dinner while he was there and saying the following:

One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

These analogies do not work and they must stop.

First, whether a legal rule should or will "live" depends to some extent on the nature of that rule. There is not much interpretative life in:

"The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap."


There is inevitably and necessarily more life (with the attendant evolution and change) to interpreting and applying broad, amorphous principles or ideas such as "the freedom of speech" or "cruel and unusual punishment."

Second, we do have a living strike zone. If you don't believe me, watch a baseball game from the 1970s or 1980s on ESPN Classic. Pitches at the letters were routinely called strikes, as were pitches slightly below the knees (what was then called a "National League Strike"). Neither one is ever called a strike now. True, the strike zone was lowered slightly in 1988. But rarely is any pitch above the belt called a strike nowadays.

Third, the fact that there were differences between National and American League strike zones tells us that some "life" was present. Back in the 70s and 80s, AL umpires used large exterior balloon chest protectors, which required them to stand more upright--allowing them to see the high pitch more easily than the low pitch. NL umpires wore chest protectors under their shirts, allowing them to crouch lower and thus better see the low strike.

Fourth, even with uniform equipment, no two strike zones are exactly the same simply because no two umpires are exactly the same. There will be slight variations in each umpire's crouch or the angle of her head or her position behind the plate. Such differences produce variations in how each umpire sees a given pitch and thus how each umpire calls a given pitch--what each strike zone looks like.

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination. Of course, neither is judging the meaning of the First Amendment.

So, on second thought, perhaps the analogy between judging and umpiring works. Just in the precise opposite direction from what Justice Alito was trying to suggest.

Posted By : Howard Wasserman

Hiring a Union Executive Director 101

Message posted on : 2007-03-14 - 13:45:00

In my post last Friday, I discussed the latest developments in the ongoing battle between the NHLPA and its executive director Ted Saskin. On Sunday evening, the 30 player representatives voted to put Saskin and senior director Ken Kim on paid leave, and to hire an outside lawyer to investigate whether they were reading private player emails. All indications lead to the conclusion that the union will be searching for new leadership. As stated in a comment to my post, maybe the players will now have an ample opportunity to deliberate about who they really want to lead them going forward.

But how do the players go about making such an important decision? What may seem like a common dilemma often faced by any organization or company at any given time is, conversely, atypical in professional sports unions. With the exception of closely-held and family-owned businesses, turnover in top executive office positions occurs on a relatively frequent basis (about every three or four years). Contrast the situation with the tenure of the executive directors in the NFLPA, MLBPA and NBPA: Gene Upshaw - 24 years; Don Fehr - 21 years; Billy Hunter - 11 years. And Bob Goodenow was the executive director of the NHLPA for 14 years before Saskin took his place.

So the first question would be, what qualities and background should an executive director of a professional sports union possess? Should an executive director have experience as a former player, like Gene Upshaw? Should it be a prerequisite that the person have experience as a lawyer, like Don Fehr and Billy Hunter? Or maybe it should be a prerequisite that the person have prior experience as a president of a labor union. Maybe an accomplished person in business with an established track record running a successful company would be a good quality to have. Or maybe a person who has a well-rounded knowledge of sports law :)

The next question is how do the players go about finding the right person? Players could seek the advice of their agents, but there is a conflict there when the agent represents the individual interest of each player, not the interest of the players collectively. Agent Matt Keator said he would offer his opinion if asked by his clients, but he doesn't believe agents should be involved in the decision: "We work for the players. It's not our association. It's their association. In my mind, it needs to be the players setting the tempo." (See Kevin Allen, Players making sure Saskin case handled properly).

Kevin Paul Dupont of the Boston Globe provides an answer to both questions: "[H]ire a small panel of corporate job hunters who can identify two or three worthy candidates to take over the union. Someone the players can trust. Someone with no ties to hockey." (Leadership on thin ice again) When I first read this, I thought, WHAT? A CORPORATE JOB HUNTER? AND NO TIES TO HOCKEY? But on second thought, his suggestion isn't a bad idea. It's time to bring in some new blood, and with the aide of an outside firm that has no skin in the game whatsoever. Search firms are often utilized by companies to fill vacancies in top executive positions. It makes even more sense for the players to hire a search firm because they, similar to all members of labor unions, are not involved in the day-to-day operations of the organization. What makes it even more complicated is the fact that there exists no "pool" of potential candidates that have prior experience running sports unions, as is typically the case when a company is searching for candidates. The players also have conflicting interests among themselves (i.e. rookies vs. veterans) that can cloud their judgment in making a decision about who the best person would be to represent their collective interests.

Posted By : Rick Karcher

New Sports Law Scholarship

Message posted on : 2007-03-12 - 10:02:00

New this week:
Lindsay C. Ferguson, Comment, Whistle blowing is not just for gym class: looking into the past. present, and future of Title IX, 39 TEXAS TECH LAW REVIEW 167 (2006)

Jodi A. Janecek, Comment, Hunter v. hunter: the case for discriminatory nonresident hunting regulations, 90 MARQUETTE LAW REVIEW 355 (2006)

Posted By : Geoffrey Rapp

Update on White v. NCAA

Message posted on : 2007-03-11 - 14:43:00

Robin Acton and Richard Gazarik of the Pittsburgh Tribune-Review have an interesting article on a class action lawsuit filed on behalf of over 20,000 current and former Division 1-A football and major Division 1 basketball players from 144 schools against the NCAA ("NCAA: United Steel Worker Union is trying to Make Athletes 'Paid Employees,' 3/11/2006). In White v. NCAA, the plaintiffs allege that the NCAA violated Section 1 of the Sherman Act, which prohibits illegal restraints of trade, by precluding member colleges from offering athletic scholarships up to the "full cost of attendance" (meaning all of the actual costs of attending college). Presently, scholarships may cover tuition, room, board and required books but not incidentals, such as phone bills, laundry, school supplies, and travel expenses--expenses that the plaintiffs claim are collectively worth between $2,500 and $3,500 a year per student.

The lawsuit also seeks elimination of earning caps for NCAA players, better health care coverage, higher death benefits, and legal assurance that athletic scholarships--which under NCAA bylaws are renewable each year at the discretion of coaches and injured athletes routinely lose them--become guaranteed for four years. If successful, White v. NCAA could require the NCAA to pay more than $100 million in damages, which would be trebled under antitrust law to over $300 million. The plaintiffs are represented by Attorney Marc Seltzer (pictured to left) of Susman Godfrey in Los Angeles, while the law firm Bingham McCutchen is representing the NCAA. I analyzed this lawsuit last February in a post entitled Incidental Matters: Antitrust Class Action Filed Against NCAA.

Acton and Gazarik interview a number of prominent experts for their story, including Professors Richard Southall of the University of Memphis, Stephen Ross of the Penn State Institute for Sports Law, Policy and Research, and Rodney Fort of Washington State University.

Here are some excerpts:
Richard Southall, assistant professor of sports and leisure commerce at the University of Memphis, said highly paid coaches exercise too much control over the players who are struggling financially while making millions for their schools. "Either it's a free market, or it's not," Southall said. "The NCAA says it can't constrain coaches, but yet it can constrain athletes. It's very hypocritical."

* * *

"If you're a really poor kid, you can get a full grant-in-aid and additional money from Pell grants. If you're not desperately poor and not wealthy enough for your parents to send you an extra couple hundred dollars a week, you still fall short," said Stephen Ross, director of the Penn State Institute for Sports Law, Policy and Research. Ross said a star athlete can generate as much as $1 million annually by attracting fans. In a free market, he said, that athlete could be worth a salary of $100,000 per year.

* * *

Rodney Fort, a sports economics professor at Washington State University, said studies show that playing Division 1 football or basketball is a full-time job. He said scholarship athletes, who fit the description of an employee in IRS guidelines, can lose their "jobs" without guarantees.

For more from the article, click here.

Posted By : Michael McCann

Interesting Developments in NHLPA Investigation

Message posted on : 2007-03-09 - 13:13:00

In January, I did a post regarding the approval of an independent investigation into the hiring of current NHLPA executive director, Ted Saskin. There have been a couple of interesting developments since then.

First, about three weeks ago, Liz Mullen of Sports Business Journal reported that there are 9 side letter agreements entered between the NHL and the NHLPA in conjunction with the 2005 CBA that have been kept secret from the players (NHL says players' union should keep side deals secret, 2/19/07). These side letters add to or elaborate on details of what was agreed to in the CBA. According to Mullen, Saskin said in an email that he agreed with the league to keep these side letters confidential because they contain "sensitive economic data" but he also stated that "the material provisions contained in the letter agreements were shared with the players during ratification" of the CBA.

However, some players and agents say that players were not told about the contents of the letters, including one that pledges union money to the league if players are paid too high a percentage of leaguewide revenue, until after they had voted on the labor deal. According to Richard Marcus, an attorney representing the players, "How can the letters be not confidential to Ted Saskin but confidential to the people who employ him?" Mullen also noted the observations of two unnamed labor lawyers who stated that, while there is precedent in which management has been able to keep proprietary information secret from unions, they have never heard of a case in which the union already has the information and keeps it secret from its own members. Also, the NLRB has taken the position that the union's "failure and refusal" to give the players access to the side letters constitutes a violation of the NLRA.

The second latest development was reported today by Kevin Allen of USA Today ("Players trying to find out if NHLPA accessed private e-mails"). I guess the title of the article sums it all up. But what is interesting is that Saskin is not denying the allegation that union executives have been reading private player emails, but is instead pointing the finger at the former executive director of the union, Bob Goodenow. According to the article, in regards to a conference call that is scheduled for Sunday with the board of player representatives, Saskin told the Canadian Press: "I plan to address the board on Sunday night and the board will learn that Bob Goodenow had instructed NHLPA employees to review player e-mail accounts and this occurred during the lockout and I was not aware of this until much later." Goodenow, in a statement released through his lawyer, responded:
"The allegations made by Ted Saskin against me regarding player emails are false. To date I have not made any public comment since leaving the NHLPA, and I won't now comment on, or get embroiled in current NHLPA issues. That said, I will be glad to respond to questions from players on any NHLPA policies or practices while I was the executive director. I am unaware of an instance where the security of a single player's email or other personal information was compromised."
Stay tuned, there's more to come.....

Posted By : Rick Karcher

One-Sport Only

Message posted on : 2007-03-08 - 16:13:00

Alfred Yen posts on Concurring Opinions about a case in Massachusetts in which a high school freshman violated the state's rule that students can play only one sport per season by playing on both the hockey and swim teams. The student was declared ineligible for the season (in both sports) and the school forfeited all the games in which she played.

Professor Yen raises two issues on this: 1) The seeming harshness of the penalty (it is the same penalty as if the student had accepted money for playing) and 2) The questionable wisdom of the rule. I want to consider the second.

According to the post, the state defends the rule as intended to protect athletes from injury and to ensure they have adequate time for academics. But the rule is so under-inclusive that one wonders whether it could be said to rationally further those asserted interests (as all legal rules must do at a minimum).

Professor Yen notes that there is no prohibition on playing a sport and simultaneously participating in another, non-athletic time-consuming extracurricular activity (school play, band, student newspaper, chorus, debate team, pick your geekdom). Indeed, there is nothing (other than the laws of physics and the space-time continuum) to stop a student from playing a sport and participating in all those other activities. And there is nothing (again besides the laws of physics) to stop a non-athlete from participating in every extra-curricular under the sun. So there seem to be too many other things that are allowed to take-up one-sport-athletes time to justify the rule.

As for the increased likelihood of getting hurt playing multiple sports: There is no prohibition on playing a sport for a school team while also pursuing another sport outside the school context, although risk of injury (and loss of academic time) would be identical. For example, this student could play hockey for the school and be a competitive figure skater. Or she could have played hockey for the school and swam for a club team. So again, the rule does not prohibit something that poses the identical risk to the students' well-being.

There is a tendency in schools to single-out athletics for special regulation beyond that for other activities--schools got their foot in the door for drug-testing by going after athletes. And Massachuseets apparently regulates only athletics, not activities more broadly. Even so, I do not see how this rule is justified in furtherance of the stated interests, given the numerous harms the rule leaves unregulated.

Updated: In an e-mail exchange, Professor Yen suggests that the real reason for the rule is to prevent one great athlete from dominating in a bunch of different sports. In the Comments to this post, Anonymous (one of them) offers a different version of that: It is a way to prevent one athlete from taking spots away from her other classmates to maximize the number of people able to participate in sports.

But either or both rationales are even less legitimate than the avoid injury/enhance academics rationales that have been offered. If one student is both the best hockey player and the best swimmer (both winter sports), she should not be prohibited from seeking to maximize her gifts in both. After all, we do not impose a similar limitation where the best debater in the school is also the best actor in the school. And we want to encourage participation in debate or drama as much as participation in sports, no?

Update # 2: If the MIAA is serious about any of these rationales (maximizing diverse participation; avoiding injury; ensuring time for academics), the rule should not be one-sport-per-season, but one (maybe two) sports per year. If there is a risk of injury from a student playing multiple sports, that is true whether those sports are played concurrently or in different seasons (I still lament that my high school's hopes for a second-straight state basketball championship were dashed when our best player, also the star quarterback, was injured in the last football game of the season). So we are back to the rule being so under-inclusive as to render its logic questionable.

Posted By : Howard Wasserman

Retiring Chief Illiniwek

Message posted on : 2007-03-08 - 01:10:00

The University of Illinois, in a recent move both heralded and reviled, “retired� its 81-year-old mascot “Chief Illiniwek� following the Illini's last home basketball game of the season. In a controversy that has plagued the University of Illinois for at least the past fifteen years, administration officials finally bowed to pressure applied by the NCAA, deciding to discard the “mascot� that has represented the University since the 1920s.

Supporters of the Chief Illiniwek mascot claim that the white student that dresses in buckskin, native headdress, and face paint pays homage to American Indians in the United States and honors the history and tradition of the original Americans. American Indian groups and other opponents of Chief Illiniwek decry the student mascot as demeaning, derogatory, offensive and disrespectful to Native Americans and their traditions.

In 2005, the NCAA agreed, albeit tepidly, with opponents of American Indian mascots and demeaning imagery by barring any University that makes use of offensive, hostile or abusive American Indian images from hosting any postseason tournaments or events. Thus, the NCAA banned its member institutions from hosting postseason events if it continued to use derogatory or offensive American Indian mascots. The NCAA in so deciding, placed itself in the position of “arbiter of offensiveness� by allowing member institutions to petition the NCAA for exemption from the new policy. Several University's successfully petitioned the NCAA to allow continued use of American Indian nicknames and logos, including the Florida State Seminoles and the University of Utah Runnin' Utes, based in part on the local Native American tribe approval of the continued use of the mascot and image.



The University of Illinois “Fighting Illini� and the University of North Dakota “Fighting Sioux� both petitioned the NCAA for exemption and were denied based primarily on the continued derogatory imagery associated with the mascots at those schools, as well as staunch opposition to continued use by local American Indian tribes. In response to the denial of the petitions, lawsuits have been filed against the NCAA by both the University of North Dakota and by two former Illinois students who had previously portrayed Chief Illiniwek. A state district court judge in North Dakota recently entered a preliminary injunction against the NCAA allowing North Dakota to host a home playoff football game this past season. North Dakota claims that the NCAA's ban breaches contractual relationships with its member institutions and is in violation of antitrust laws. The NCAA plans to vigorously defend its ability to regulate member institution activities. A trial has been set for December 2007.

This running controversy raises several questions of great import: First, since Tarkanian, the NCAA has been afforded nearly carte blanche authority over its member institutions. It is difficult to envision a scenario wherein the NCAA will be found to have exceeded its authority, breached contracts or violated antitrust laws in banning member institutions from hosting postseason events so long as the voluntary member institution continues to use hostile or abusive mascots or logos. Second, if American Indian citizens of the United States are in fact offended, deeply offended, by the mockery of traditions and sacred rituals, why are University administration officials fighting, literally scrapping to continue to offend American Indian citizens? Third, what difference should it make that some American Indian citizens are offended while it is well documented that other Native Americans are not bothered at all by the imagery and in fact claim to be proud of the recognition?

Some argue that the NCAA's ban is a step in the right direction. Others suggest that the NCAA has been cowardly in not mandating an outright ban against any continued use of American Indian imagery by member institutions. This debate promises to continue for years to come.

And, what is to be made of the continued use of professional sports franchises that cling to American Indian symbols, logos, mascots and images (i.e., Atlanta Braves, Washington Redskins, Chicago Blackhawks, Kansas City Chiefs, Cleveland Indians, etc.)?

Posted By : dre cummings

Banning Boo Birds

Message posted on : 2007-03-06 - 15:43:00

The Washington Interscholastic Activities Association is considering a rule that would ban booing, negative comments, and offensive chants at high school sporting events.

I previously have written on whether any type of fan "cheering speech" can be regulated or prohibited at college and professional sporting events. My conclusions in those contexts has been (not surprisingly to those who have been reading me the past few months) that such prohibitions violate the freedom of speech. They also are practically unenforceable, at least in a fair, neutral, and even-handed way. And they are a really stupid idea.

As to banning booing and negative comments: This would run afoul of the First Amendment's basic prohibition on rules that discriminate based on "viewpoint"--rules that permit speech on a topic from one point of view while prohibiting speech on the same topic from a different point of view. Allowing me to cheer for and praise Player X on Team A, but prohibiting me from booing or criticizing Player X on Team A obviously discriminates against one point of view--the negative or critical one. Government cannot require people to "keep things positive."

As to offensive chants: This breaks down on the problem of "offensive to whom?" Is the level of acceptable cheering whatever is acceptable to the most sensitive/least tolerant person in the audience? Acceptable to the school administrator? To the usher?

Plus, much offensive speech is subtle enough that those in charge do not actually recognize that it might be offensive. My favorite example (which I always run back to in all my articles) is what happened when Texas Tech played at Kansas in men's basketball in 2004, a game played a few days after Tech Coach Bob Knight's infamous altercation with the university chancellor at a salad bar in Lubbock. During the game, Kansas fans chanted "salad tosser" at Knight and most listeners (including KU Coach Bill Self and university administrators) praised the students for their cleverness. But go look-up the term salad-tosser as a piece of slang. Think the students knew this when they picked out that phrase?

The point is that prohibiting "offensive speech" is both over-inclusive and under-inclusive. It is over-inclusive because officials tend to get overly sensitive and thus to over-regulate. It is under-inclusive because more subtle (but not less offensive) examples will be missed.

All that said, the fact that this is occurring at the high school level potentially (likely?) changes the analysis. High schools are able to regulate student expression (certainly in school-sponsored and school-funded activities, if not beyond) in ways that would be unacceptable and impermissible on a college campus or in society at large. This includes prohibiting particular points of view on some subjects from being presented within the school confines.

That is why it is important to consider, First Amendment rules to one side, the stupidity of such policies. Whether or not Washington officials could do this gives way to whether Washington should do this. My answer is they should not.

Posted By : Howard Wasserman

Florida Coastal Symposium: The NCAA Enforcement Process

Message posted on : 2007-03-05 - 15:25:00

On Thursday March 15th, there will be an in-depth panel discussion at my law school about the practical and theoretical aspects of the NCAA enforcement process. We have invited some of the key players to serve as panelists who are entrenched in the enforcement process: Jo Potuto, Chair of the NCAA Infractions Committee; Jerry Parkinson, one of the committee's two coordinators of appeals; and Rick Evrard, attorney at the firm of Bond, Schoeneck & King. Their bios can be accessed here. The panel will be moderated by my colleague, Professor Nancy Hogshead-Makar, who teaches our Amateur Sports Law course and has a very impressive bio in collegiate athletics as well.

Joe Drape wrote a timely piece in yesterday's edition of The New York Times about the increased hiring of specialized law firms by universities for representation not only with respect to a pending investigation by the NCAA as one might expect, but to actually perform an internal audit and recommend sanctions before the NCAA has even started investigating ("Facing N.C.A.A., the Best Defense Is a Legal Team"). The article features Evrard, who spent seven years as an NCAA investigator, and his law firm, which represents more than 60 colleges and universities on matters of eligibility, compliance and major infractions investigations. Drape makes some interesting observations:
It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.
....
The N.C.A.A.'s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.
....
Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.'s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.
According to Evrard: “Some institutions distrust the N.C.A.A. enforcement staff. There is a feeling that the N.C.A.A. is not attuned to the sensitivities of the institution. And some of it is that the N.C.A.A. staff are often young professionals just out of law school, and they are running a case from beginning to end, which, if they were litigators at some firms, they may not be allowed to do for 10 or 12 years.�

To me, Drape's last comment pretty much sums up the purpose for hiring outside law firms to perform internal audits and recommend self-imposed sanctions: The infractions committee "rarely rejects the recommended sentence." And let's face it, cooperation with the NCAA is key. The outside law firm appears to almost act as an intermediary as opposed to the adversarial role typically performed by lawyers. In a previous post, I discussed how universities could benefit from hiring a full time in-house attorney to work exclusively in the athletics department, and this is definitely an area by which in-house attorneys can play a valuable role as well.

UPDATE 3/16/07: Jason Schneider of the Florida Times-Union wrote a great article about the issue ("Firms offer help when schools face legal woes")

Posted By : Rick Karcher

Harvard Law School Conference on Law and Mind Sciences

Message posted on : 2007-03-01 - 15:10:00

For those of you interested in social psychology and the law (such as how cognitive biases affect the decision-making of athletes or how situational influences distort fan perceptions of the NBA) and who live near Cambridge, Massachusetts, I am pleased to announce that Harvard Law School's Project on Law and Mind Sciences (which Jon Hanson and I recently co-founded) will be hosting The Conference on Law and Mind Sciences on Saturday, March 10, in Austin Hall at the HLS campus. Our conference will introduce to lawyers, law students, and legal theorists some of the key discoveries and insights of social psychology, social cognition, and related fields regarding the purposes, motives, and consequences of law. It will also bring together some of the country's most distinguished social psychologists (e.g., Jennifer Eberhardt, John Darley, John Jost) and legal academics (Duncan Kennedy, Charles Ogletree, Martha Minow)--many of whom blog on The Situationist--and will include both the presentation of research by psychologists and a discussion of that research with legal scholars.

It should be a fantastic event, and please let me know if you can make it. I would welcome the chance to meet you in person.
If you would like to attend, please register at this link--that way, you will be sure to get a seat and, just as importantly, some food!

Also, for more general information about our Project, please check out lawandmind.com.

Posted By : Michael McCann

Cedric Maxwell's Sexist Comments about NBA Referee Violet Palmer

Message posted on : 2007-02-28 - 16:51:00

Cedric Maxwell--the MVP of the 1981 NBA finals and whose number #31 the Boston Celtics recently retired--has been the color analyst for radio broadcasts of Celtics games since 1995. His thoughtfulness and humor have made him popular among Celtics fans, particularly in recent years as his performance has excelled.

But as reported by Dave Adams of Universal Hub, Maxwell has found himself in controversy due to recent on-air comments about NBA referee Violet Palmer (hat tip to Jeff Clark of Celtics Blog):
During the first quarter of tonight's radio broadcast of the Celtics game against the Houston Rockets,one of the Celtics players managed to fake out the referee to get a call to go his way. The referee who made this call was Violet Palmer, who happens to be a woman. Cedric Maxwell, the analyst / sidekick on the Celtics broadcast team, proclaimed "Get back in the kitchen!" when she made the call. Max's partner, Sean Grande, tried to throw him a lifeline by pointing out that they had both been previously impressed by Palmer's officiating, but Max continued "Get back in the kitchen and fix me some bacon and eggs!"
Somewhat surprisingly, at least from my vantage point, neither the Celtics nor WEEI, which broadcasts Celtics games, will take any disciplinary action against Maxwell. Instead, he has agreed to apologize on-air. Just compare that "sanction" with the firing of former Fox baseball announcer Steve Lyons for, at worst, ambiguously negative comments about Latinos. I recognize that Lyons' had a bigger and national audience, that he had made other curious remarks in the past, and that Fox may have employed a stricter on-air policy than WEEI, but I still find the outcomes odd. Maxwell made an unquestionably sexist remark--should it really be tolerated without sanction? Is no suspension or even reprimand in order?

Along those lines, think about what Violet Palmer must feel whenever she makes a controversial call. As the only female referee in the NBA (and there are no female refs/umps in the NFL, NHL, or MLB), her gender--which obviously has no bearing on her talent--probably enters the minds of many of those who don't like the call, and some of those persons, apparently like Cedric Maxwell and his "fix me some bacon and eggs" line, occasionally might let that bias slip. God only knows what fans yell at her when they don't like her.

And no doubt, Violet Palmer's gender makes her job harder than it would otherwise be. A favorite target of Bill Simmons and other basketball writers, Palmer is routinely criticized for not being very good at her job. For instance, Simmons has written of Palmer:
Nobody has ever been worse at their job, in any vocation – not even the people who work at Home Depot selling Christmas trees. When Violet started officiating a few years ago, she was so incompetent, players and coaches actually avoided arguing with her – whenever she screwed up, they would always glance around helplessly, the same way you would if your puppy dropped a deuce on the living room carpet.
I'm not sure if that criticism is true, but assuming for a moment that it is, might Stanford social psychologist Claude Steele's research on stereotype threat be relevant? Stereotype threat reflects the behavioral effects that result from an individual's belief and fear that his or her actions will confirm a negative stereotype of a group to which he or she belongs. As I discuss in a work-in-progress on the Wonderlic Test, stereotype threat typically manifests in anxiety, which can impair performance and trigger a self-fulfilling prophecy: because of stress related to one's group membership, one underperforms, thereby unintentionally corroborating the underlying group stereotype. Thus, the situational presence of stereotype threat, rather than the person's aptitude, skill, or talent, may generate the behavior that confirms the underlying stereotype. As I write:
[M]inority undergraduates tend to perform less well academically when they believe there are achievement gaps relative to race. In a recent study of undergraduates, African-American students performed worse than their white classmates when told that they are taking an exam that measures “their intelligence.� However, they performed equal to white students on the same exam when told that they are taking an “experimental� exam.
Whether or not stereotype threat exists with Violet Palmer, it's clear that she has an unusually tough job. Granted, I know that no one forced her to take this job; she undertook it knowing, at least on some level, what she would be getting into (although that doesn't justify those problems). Moreover, I genuinely applaud the NBA--and, yes, Commissioner David Stern, who I often criticize--for being the first and still only major pro sports league to employ a female referee. But I hope that the league and its teams do all they can to ensure that her gender not be used to marginalize her or to interfere with her work, otherwise it would seem that she is being set up to fail. With that in mind, should there really be no sanction for a radio announcer who, on-air, says of Violet Palmer that she should "get back in the kitchen"? Are we in the year 2007 or 1947?

Update: see Jeffrey Standen's vigorous and thoughtful defense of Maxwell.

Posted By : Michael McCann

American University Soccer Player's $10 Million Tort Case Against Former DC United Star

Message posted on : 2007-02-28 - 07:42:00

Yesterday, the Washington Post covered an interesting lawsuit filed by a former soccer player from American University against the MLS franchise D.C. United, its owners, and a former player, Bulgarian superstar Hristo Stoitchkov.

In 2003, the AU college team played the United in a scrimmage. According to the Post story:
The incident occured about 10 minutes into a scrimmage . . . during the [American University] Eagles' offseason and a few weeks before United's season opener. [The AU player] was preparing to take possession of the ball when Stoitchkov approached on the run and, in an apparent attempt to disrupt play, slammed his left foot into [the student's] right leg, which, according to the lawsuit, was planted on the field. Stoichkov, who according to the lawsuit, was angry that game officials did not disallow an AU goal moments before the tackle . . . -- was assessed a red card. Both coaches agreed to suspend the game. [The AU player] was removed by ambulance and, later that day, had a four-inch metal plate inserted in his leg.
Plaintiff now seeks $5 million in compensatory and $5 million in punitive damages. Stoichkov, now the Bulgarian national coach, was quoted by the Post's Soccer Insider blog:
"I'll leave that to my lawyers but as far as I know this case is closed. I don't care what the press say. I am concentrating on my work in Bulgaria and the national football team."
Duke Sports Law expert Paul Haagen was interviewed for the story, and offered this observation. He offered this on-point observation:
"What this will turn on is expectations -- the expectations of the participants, what the game was about and whether it went beyond those level of expectations . . . . Did the incident go beyond the normal course of the game?"
One wonders what expectations typically are for a scrimmage, as opposed to a competitive game. A player might expect and therefore assume risks in a competitive game that would not be a part of scrimmage play. I'll also be interested to see whether a court treats the AU player according to the less-plaintiff-friendly standard typically applied to professionals (in that he was playing against a pro team), or the more plaintiff-friendly standard that typically applies in amateur or recreational sports injury cases.

In any event, this seems like an odd case to expect punitive damages, since on the part of team and its investors there is certainly no "wanton and wilful" misconduct. As to Stoitchkov, it will depend on how aggravated his conduct is found to be.

HT to UT Law 3L Justin Stone for pointing me to the story.

Posted By : Geoffrey Rapp

Is Potato Sack Racing a "Contact Sport"?

Message posted on : 2007-02-27 - 11:43:00

As long-time readers of this blog know, one of my enduring sports law interests in the tort liability of participants in athletic events to one another (see posts on the subject here, here, and here). In many states, a "contact sports exception" applies to personal injury cases between co-participants in sports deemed to "inherently" involve contact. Co-participants can only recover from one another where the offender committed a "reckless" act, since the risk of negligence is viewed as an assumed risk of contact sports.

A key question that arises in cases implicating this legal rule is the line between contact and non-contact sports.

Now, an Ohio appellate court has sent a case back down involving an injury to a participant in a potato-sack race, ruling that such racing is not a contact sports. According to the Cleveland Plain Dealer story on the case:
"Intentional tackling is not a customary part of the sport or activity of sack racing," said the appellate decision. "Sack racing is not a contact sport."

A new trial will decide if Martin LaMalfa, 43, of Concord Township, was negligent when he tackled cousin Anthony Aquila, 53, of Wickiffe, during the sack race Aug. 17, 2003, at a LaMalfa family reunion at the Outdoor YMCA in Perry Township.

"It is clear from the record that roughhousing between two grown men was done in a spirit of childlike competition between cousins which unfortunately due to their respective ages and physical limitations may negligently have caused some serious damage," the appellate court said in its opinion.
Having participated in just a few such races over the years, I'm not qualified to render an opinion on the level of contact typically expected in this activity. At least according to e-how, however, contact isn't a part of the rules of potato-sack racing.

Posted By : Geoffrey Rapp

Politics, Expression, and Basketball Arenas

Message posted on : 2007-02-27 - 07:07:00

True Hoop (which, having asked Mike to guest-post, must be regarded as the official non-law basketball blog of the sports-law world) reports on a story from The Stranger (which I gather is Seattle's weekly independent newspaper):

The campaign finance records I've reviewed show that Sonics/Storm co-owner Tom Ward has contributed $475,000 to Gary L. Bauer's Americans United to Preserve Marriage

And another Sonics/Storm co-owner, Aubrey McClendon, contributed $625,000.


During the last two election cycles, Americans United distributed $ 1.3 million, of which Ward and McClendon contributed $ 1.1 million. The group opposes same-sex marriage, which it insists "cheapens" the institution.

Neither Ward nor McClendon is the managing partner within the ownership group; that is Clayton Bennett, who apparently has not made such contributions. The Seattle Post-Intelligencer picked up the story here.

This new controversy raises a number of interesting issues.

First, there is the connection to Tim Hardaway's comments and the NBA's reaction to them. Should the league take similar action against these Sonics owners? As a private entity, the league could sanction anyone involved with it, without running afoul of the First Amendment. But I would be uncomfortable if the league began controlling what groups and ideas players, owners, and other league members can promote outside of their basketball roles. And Hardaway was dismissed from performing an official function in which he was speaking and acting on the NBA's behalf. Certainly the league has greater control over that than over what an active player says apart from his basketball functions.

But this leads to a second issue. If leagues are going to police what players, owners, and others say, do they need to be consistent? Is what Hardaway said that much worse than what Ward and McClendon are (through their financial support) advocating, such that you can punish Hardaway but not Ward and McClendon? Substantively, there is no difference between saying "I hate gay people" and "I want the law to deny gay people the same basic rights that I (and others like me) have." The former reflects an angrier, more emotional idea than the former. But both are anti-gay-rights points of view. In my view, both are fully protected expression and neither should be the basis for league-imposed punishment. But we too often get caught up in the way things are said, punishing an offensive way of saying something, while ignoring statements that express ideas that are just as troubling when they are stated in a softer way. I am not sure you can justify punishing one and not the other (although again, my preference is that you punish neither).

Third is the issue of how the controversy will affect the Sonics' efforts to secure $ 300 million in state and local funding for a new arena. Can legislators take into account the politics of some of the owners in deciding whether to approve this funding? On one hand, an instinctive notion is that government should not decide whether to award benefits on how a recipient exercises his First Amendment rights. Although doing so in this context would not, strictly speaking, violate any one's First Amendment rights, there is something troubling about public officials voting some way because of the recipient's unrelated political viewpoints.

On the other hand, they may not be so unrelated. The Sonics are asking for (nee, demanding) a substantial amount of public funds towards an arena that the team insists is essential for the team to survive and thrive financially. It also argues that building the arena (and thus keeping the team in Seattle, rather than relocating to Oklahoma City) brings economic, social, and cultural benefits to the community (putting to one side the overwhelming consensus among economists that no economic benefits exist). But the arena also benefits the Sonics owners, Ward and McClendon among them--they have to spend $ 300 million less of their own money to gain this necessary asset; plus the arena almost certainly comes with a highly favorable lease that allows the team (i.e., the owners) to keep much of the arena-derived revenue (naming rights, seat licenses, parking, concessions, etc.).

Now, could a conscientious state or local legislator decide not to vote for a project that puts more money in the hands of two individuals who likely will use some of that money to advocate public policy positions that are anathema to the great majority of her constituents? I think the answer is yes.

Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-02-26 - 09:51:00

New this week:
Michael J. Jurek, Note, Janitor or savior: the role of Congress in professional boxing reform, 67 OHIO STATE LAW JOURNAL 1187 (2006)

Shane Mecham, The house that consensus built: consensus building in stadium construction, 38 URBAN LAWYER 1087 (2006)

Posted By : Geoffrey Rapp

Chad Cordero: Wins Arbitration But Losses Autonomy?

Message posted on : 2007-02-23 - 16:47:00

Attorney Bryan Stroh (a former law school classmate whose practice includes sports law and who was also a pretty darn good baseball player at Princeton), passes along this link from MLB.com on Washington Nationals' closer Chad Cordero being pressured by his agent and the MLBPA into turning down a two-year guaranteed deal (said to be worth between $7 million and $8 million) from the Nationals. According to Cordero, both the MLBPA and his agent, Larry Reynolds, thought he would win his arbitration case, and that he would be making a big mistake by signing the two-year offer. They appear correct, as Cordero won his case, securing a $4.15 million contract for 2007; if the 24-year-old Cordero--one of the best young closers in baseball--has another terrific season, he would be poised to make even more in 2008.

But even though he won his arbitration case, Cordero doesn't feel good about being pressured into not signing the two-year contract offer:
"I don't know why I didn't sign [the two-year deal]," Cordero said. "I wanted to. The Players Association thought I had a good case and they wanted see how it turned out. Even if I lost my arbitration case, I wasn't going to lose. It's still a lot of money. It's still more money than I ever would have thought [I'd make]."
Assuming this media report of Cordero's feelings is accurate, what does it say about the role of the agent and the players' association? I understand that the players' association has a collective interest in trying to maximize salary averages for each position, and that Cordero's contract affects future contracts of other closers, but who is looking out for Cordero? He is, after-all, a member of the MLBPA; should he be dissuaded from his instinct, or was the MLBPA correct in taking a more guiding approach?

And what about his agent? On one hand, he probably gave his client advice that will enable him to make more money--perhaps a lot more money--but on the other hand, his client doesn't seem to feel too good about what happened. Rick has written extensively on this topic (e.g., his post Players Union Needs to Fix the Agent Business and law review article Solving Problems in the Player Representation Business: Unions Should be the Exclusive Representatives of the Players), and I would be interested in hearing his thoughts.

This topic also brings to mind that many players perceive significant value in non-monetary terms, such as getting to play in a particular part of the country or with a certain group of teammates. Sometimes players are moved by those non-monetary terms in ways that they don't fully appreciate (a subject which I examine in my article: It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review 1459 (2006)), but sometimes they genuinely prefer to not go through a contentious salary arbitration process. Along those lines, even though we live in an American culture of "every last dollar" mattering, clearly not every American embraces that creed. And maybe Chad Cordero is one such dissenter.

Posted By : Michael McCann

Could a Gay NBA Player Sue for Hostile Work Environment?

Message posted on : 2007-02-23 - 13:34:00

A couple of days ago, Henry Abbot of True Hoop asked me to assume, for the sake of argument, that a handful of NBA players were gay and that many NBA players were anti-gay, and then examine whether the NBA, its teams, and/or executives could be vulnerable to a hostile work environment lawsuit. I opined that such a claim would be hard to prove based on what we know, and I explain why on True Hoop.

Also be sure to check out Howard's related posts on Sports Law Blog from earlier this week (2/21; 2/17).

Update on The Relevance of Title VII and Personal Jurisdiction: My good friend Paul Secunda, who blogs on Workplace Prof Blog and who is a labor and employment law professor at the University of Mississippi School of Law, e-mails me an important point that makes this type of claim even less likely: since sexual orientation is not a prohibited classification under Title VII, a gay NBA player bringing such a claim would very likely have to be employed by a team that plays its home games in one of the states or municipalities where sexual orientation discrimination is recognized--and since most states and municipalities do not recognize it, many NBA players could not bring a claim. But I asked Paul whether a player who does not play for such a team could make a personal jurisdiction argument based on the premise that all NBA teams--which are all part of joint venture called the NBA--avail themselves of the forums they travel to by playing games there, meaning a team traveling to the state of Washington (where sexual orientation is recognized) to play the Supersonics avails itself of that forum, but he does not believe that such an argument would work:
I think the answer would be the same as when you have a business traveler who spend much of the time on the road. You can engage in harassment or discrimination on the road, but the law that would apply to such situations is where the employer is located.
Thanks to Paul for this comment.

Posted By : Michael McCann

Equal Pay at Wimbledon: But Should Women Make More Than Men?

Message posted on : 2007-02-23 - 10:35:00

Paul Secunda over at Workplace Prof Blog discusses the world's most prestigious tennis tournament, Wimbledon, bowing to public pressure and agreeing to pay women players as much as the men. Wimbledon had been the last of the four Grand Slam Tournaments to pay men and women players unequally. Last year, the men's winner pocketed $1,170,000 while the women's winner received $1,127,000.

Gary Clark over at Sports Frog goes a step further and writes that women's tennis should have more lucrative prizes than men's since women's tennis--which still has volleys and long rallies--has become much more enjoyable to watch than men's. Many tennis observers agree that the men's game has become boring to watch with too many serves impossible to return; to some, the days of John McEnroe, Jimmy Connors, Mats Wilander, Stefan Edberg, and many others gracefully battling it out seem like a completely different sport than today's extreme power game.

Posted By : Michael McCann

One Step Forward - Two Steps Back

Message posted on : 2007-02-22 - 02:32:00

In a blog post three weeks ago, I asked the question whether progress on the minority NFL head coach hiring front had been realized. Now three weeks later, the answer to that question appears to be “probably not.� With the hiring of Norv Turner a few days ago by the San Diego Chargers, and the recent hiring of Wade Phillips by the Dallas Cowboys, we have two white coach retreads, who are both two time losers. Both Phillips and Turner have been hired as head coaches again after literally failing in previous stints as head coaches. Turner has posted a career won-loss record of 58 wins and 82 losses in head coaching stints with the Washington D.C. professional football club and the Oakland Raiders (overseeing winning seasons in only three of nine seasons as head coach). Phillips has posted a pedestrian career won-loss record of 48 wins and 39 losses in head coaching stints with the Buffalo Bills and the Denver Broncos (as well as an interim stretch with the Atlanta Falcons). That each man has been hired as a head coach once again, for a third time, is truly confounding.

Both the San Diego Chargers and the Dallas Cowboys followed the Rooney Rule, described in this space several weeks ago. Dallas interviewed at least three minority candidates, while the Chargers interviewed at least two. Mike Singletary and Ron Rivera, in fact, have been interviewed by a number of NFL franchises in the past two years, but have yet to land a top job. Why are twice fired, often times losing white coaches being recycled into virtual “winning� situations while prolific minority assistant coaches are being passed over (many would agree that the San Diego job is the best one in the NFL, while the Dallas job has the look of a sure winner)?

The hiring of Mike Tomlin by the Pittsburgh Steelers, with the Steelers one year removed from a Super Bowl title, appears to be one of the only times an African American head coach has been hired to coach a team poised to win, rather than being hired to resurrect a moribund franchise (see Tony Dungy in Tampa Bay, Marvin Lewis in Cincinnati, Romeo Crennel in Cleveland, Dennis Green in Arizona, Lovie Smith in Chicago, etc.). While Dennis Green, Ray Rhodes and Tony Dungy have been recycled (hired a second time) after being fired previously, both Green and Dungy had winning and exemplary records with the teams by which they were fired (Rhodes was 29-34-1 with the Eagles). It strains reality to imagine that an African American head coach with a 58-82 won loss record (exactly the same as Norv Turner) would ever be hired again as a head coach in the National Football League.

Still, the NFL clubs are owned by wealthy white males. They will continue to hire retread candidates and pray that one will turn into the “recycled� Bill Belichick who was run out of town after mostly failing for several seasons with the Cleveland Browns. Will the Rooney Rule be enough to break this outdated reality?

Posted By : dre cummings

Sport and the Meaning of Homosexuality

Message posted on : 2007-02-21 - 14:54:00

A commenter with the handle ChapelHeel makes an interesting point to the post about the reactions to John Amechi coming out. ChapelHeel tries to distinguish Tim Hardaway's anti-homosexual comments from Shavlik Randolph's statement that he was OK as long as Amechi (or anyone else) does not "bring your gayness of me."

ChapelHeel says, in part, as follows:

There are lots of people in America who are fine with gay people living a gay lifestyle, but do not want to be personally involved. Call it a middle ground of acceptance.

Let's assume Randolph is Jewish (based on his first name), and let's also assume he is heterosexual. Now suppose he said he was fine with Christians "as long as you don't bring you Christianity on me." Would we be upset? I doubt it.

So why do we get upset if we substitute "gayness" for Christianity when Randolph is heterosexual? Because it is the hot topic of the day.

I don't find his comment unenlightened. It is not as accepting as it could be, but it isn't non-acceptance. It is non-participation; and that's different.



This raises important issues about sexual orientation and the significance of having gay and straight professional athletes co-exist. And it also gets into some issues about the role of religion and sports, something I have been thinking about a great deal.

In the original post, I criticized Randolph's comment as incoherent because I really do not know what he meant by "bring your gayness on me." What is he talking about? As for suggesting it was unenlightened: I used that word not because Randolph's comment was antipathetic towards homosexuals; I was not using it in the political sense of intolerant towards gay people. In fact, if more people took the attitude of "gay people can do what they want and it does not affect me," we would all be better off.

But I think Randolph's statement is unenlightened in a different sense: Any meaning we can ascribe to it reflects a fundamental misunderstanding of sexuality and sexual orientation. As I see it, he could have meant any of three things.

Possibility # 1: Do not make me gay by being around me--as if it were catching. I think most of us can agree that sexual orientation is not akin to a communicable disease that can be passed around the locker room--that being around someone who is gay can "make you gay."


Possibility # 2: Do not try to make me gay by converting me to your homosexual lifestyle. This one gets a bit closer to ChapelHeel's religion comparison. The problem is that sexual orientation is not a choice; it is a genetically hardwired predisposition as to who or what one is sexually attracted. So the idea that Amechi might "convert" Randolph misunderstands this fact about sexual orientation. True, this point is subject to some scientific, social, and religious controversy about the ability to "cure" homosexuality. And the anti-rights movement speaks of a homosexual agenda involving "recruiting" of new members, especially children. But I think the weight of science is on my side on this one.

Possibility # 3: Do not hit on me; I am not gay and am not interested in having sex with you so don't approach me. I call this the "Get Over Yourself" Problem: Do not assume that, just because the man standing next to you is gay, he wants to have sex with you; you aren't that good-looking. Just like we would not (or at least should not) assume that the heterosexual woman standing next to us wants to have sex. (Although the rules of sexual attraction are quite different with professional athletes, but that was the subject of Michael's post). If this is what Randolph meant, it is a bit presumptuous--and again reflects a misunderstanding of sexual orientation and what it means to be attracted to particular people.

Any of these three meanings is troubling in my view, for what it shows about Randolph's misunderstanding of homosexuality and sexual orientation.

But I do find this part of the issue interesting. While all the controversy has surrounded Hardaway's openly antipathetic comments, little attention has been paid to Randolph. But in many ways the worldview reflected in Randolph's comments is more troubling than the worldview reflected in Hardaway's. Randolph presents ideas that are fundamentally wrong about sexuality and sexual orientation, ideas that, if widely accepted, hold back the ability of openly gay athletes to exist and function in professional sport. But the ideas are presented in such benign, quasi-tolerant terms ("As long as I don't have to be involved, I'm OK with you doing what you want") that the danger of the underlying ideas gets buried. He is seen as being "accepting," as opposed to troublingly uninformed. At some level, rabid bigotry ("I hate gays") is easier to confront and less harmful.

Also, I take issue with ChapelHeel's suggestion that if a Jewish athlete (and my quick check says Randolph is not Jewish. And trust me: We are so starved for Jewish sports stars that we keep a very close watch on these things) requested that a Christian teammate "not bring his Christianity on me" we would not be upset. Actually, there would be an uproar from the Christian Right and the people on Fox News like you would not believe. The controversy over prayer at football games is precisely because non-Christian athletes and fans seek to avoid the bringing of Christianity on them--how is that working out? This is a separate and intriguing subject that I would like to discuss more in the future.

Finally, a personal note to ChapelHeel. Judging by the handle, I am guessing you are a UNC fan. I commend the fact that you declined to trash, and in fact defended well, a Dukie. That is enlightened.

Posted By : Howard Wasserman

Tuesday Sports Law Panel at Western Michigan University

Message posted on : 2007-02-20 - 15:10:00

On Tuesday, February 27 (next Tuesday), Rick, Bob McCormick (MSU Law) and I will be doing a panel on Sports Law for the undergraduate pre-law society at Western Michigan University. The event will be from 6:30-7:30 in Bernhard Center, Room 209 (PLEASE NOTE: UPDATED LOCATION), and we are planning to address the general topic of amateruism, pay, and unionization in college sports. Anyone in the Kalamazoo neighborhood, please feel free to attend since the event is open to the public.
Posted By : Geoffrey Rapp

Dice-K, Beer, and the Feds

Message posted on : 2007-02-20 - 11:01:00

A follow-up to Michael's post about Red Sox pitcher Daisuke Matsuzaka taking a sip of beer in a Japanese-language television ad running only in Japan. Michael focused more on the ethics of the ad and of the close ties between professional sports and alcohol. He suggests (as I believe to be the case) the the prohibition on depicting someone drinking alcohol on television is a voluntary network regulation, not a requirement from the FCC or the FTC or other federal regulatory agency.

Well, maybe not . . .

Ilya Somin of the Volokh Conspiracy discusses here the fact that the Alcohol Tobacco Tax and Trade Bureau ("ATTB") might be contemplating future punitive action against Dice-K because the ad violates its regulations prohibiting ads depicting athletes consuming (or about to consume) alcohol prior to or during competition or suggesting that drinking alcohol enhances health or athletic prowess.

Ilya quite rightly slams this as "inane overregulation." Putting to one side any First Amendment concerns (either under current doctrine or what the doctrine ought to be): The ad is not running in the United States or in a language that most people in the United States speak or understand. The federal government, not content with telling U.S. citizens what images they can see, now want to tell the people of Japan what images they can see.

Prediction: Any penalty imposed (and it remains a Big IF whether the ATTB will actually do anything) will be reversed because such extra-territorial application of U.S. law is disfavored.

Posted By : Howard Wasserman

Sports and the Rule of Law

Message posted on : 2007-02-19 - 21:31:00

At DorfOnLaw, there is an interesting post-and-comment exchange, started by Neil Buchanan, on how rules are applied in various sports. Neil's focus is the way the NBA openly and even proudly applies rules differently for superstar players. No other sport does this, at least not as openly. For example, I feel pretty certain that the strike zone is different for certain batters or certain pitchers, but MLB strongly denies this.

Interesting stuff. And it suggests that Chief Justice Roberts's argument that a judge should be nothing more than an umpire, perfectly clear and objective, applying clear rules precisely as written, is unworkable. Because, in reality, that is not what an umpire does.

Posted By : Howard Wasserman

Sports and the Rule of Law

Message posted on : 2007-02-19 - 21:31:00

At DorfOnLaw, there is an interesting post-and-comment exchange, started by Neil Buchanan, on how rules are applied in various sports. Neil's focus is the way the NBA openly and even proudly applies rules differently for superstar players. No other sport does this, at least not as openly. For example, I feel pretty certain that the strike zone is different for certain batters or certain pitchers, but MLB strongly denies this.

Interesting stuff. And it suggests that Chief Justice Roberts's argument that a judge should be nothing more than an umpire, perfectly clear and objective, applying clear rules precisely as written, is unworkable. Because, in reality, that is not what an umpire does.

Posted By : Howard Wasserman

Sports Law Prof to be New Baltimore Law Dean

Message posted on : 2007-02-19 - 12:20:00

Following on the news that Tulane's Gary Roberts will be assuming the deanship at IUPUI this summer, I pass on the bittersweet news that my colleague, and former UT Law dean Phil Closius, has been appointed the next dean at the University of Baltimore Law School. Phil was a great dean (after all, he hired me), and a great colleague, and Baltimore is lucky to get him. Baltimore is a school with a strong sports law history: former professor William Weston (former associate dean at Florida Coastal and now associate dean of Concord) founded the Association for Representatives of Athletes and Professor Dionne Koller teaches sports law there now. Phil is a former registered NFL player agent, officer of the AALS Section on Law and Sports, and has written a number of significant scholarly works on sports law (among other topics), including:
Hell Hath No Fury Like a Fan Scorned: State Regulation of Sports Agents, 31 UNIVERSITY OF TOLEDO LAW REVIEW 511 (1999)

Involuntary Nonservitude: The Current Judicial Enforcement of Employee Covenants Not to Compete--A Proposal for Reform, 57 SOUTHERN CALIFORNIA LAW REVIEW 531 (1984) (with Henry M. Schaffer)

Not at the Behest of Nonlabor Groups: A Revised Prognosis for a Maturing Sports Industry, 24 BOSTON COLLEGE LAW REVIEW 341 (1983)
Congrats to Phil & to Baltimore!

Posted By : Geoffrey Rapp

I Want to Be Like Mike, Except in Bankruptcy Court

Message posted on : 2007-02-19 - 11:22:00

Last week, the U.S. Bankruptcy court overseeing the bankruptcy of Worldcom, Inc., dealt a blow to Michael Jordan in his effort to collect on unpaid endorsement fees, concluding that Jordan had failed to take mitigation efforts after Worldcom went under. See In re Worldcom, Inc., 2007 WL 446735 (Bkrtcy. S.D.N.Y., Feb 13, 2007).

Jordan had signed on as spokesman for MCI, then Worldcom, endorsing products like the pictured 10-minute phone card:
In addition to a $5 million signing bonus, the Agreement provided an annual base compensation of $2 million for Jordan. . . . The Agreement provided that Jordan was to make himself available for four days, not to exceed four hours per day, during each contract year to produce television commercials and print advertising and for promotional appearances. The parties agreed that the advertising and promotional materials would be submitted to Jordan for his approval, which could not be unreasonably withheld, fourteen days prior to their release to the general public. From 1995 to 2000, Jordan appeared in several television commercials and a large number of print ads for MCI.
After Worldcom filed for bankruptcy in 2002, Jordan eventually sought payments of "$8 million--seeking $2 million for each of the payments that were due in June of 2002, 2003, 2004, and 2005."

The case itself turns on a number of bankruptcy law issues, such as whether Jordan was an employee or an independent contractor (the court ruled the latter) or whether Jordan had no obligation to mitigate his damages as a "lost volume seller."

The interesting part of the opinion is the court's discussion of Jordan's failure to mitigate his damages by seeking additional endorsements to cover the period after Worldcom went under. According to the court,
Jordan's agent, David Falk . . . , testified that "there might have been twenty more companies that in theory might have wanted to sign him" but that Jordan and his representatives wanted to avoid diluting his image.
Jordan's financial and business manager, Curtis Polk, admitted that
Jordan did not return to the endorsement marketplace to try and replace the revenue he was to be paid under the Agreement. . . . Polk explained that Jordan did not wish to expand his "pitchman efforts with new relationships" because of his primary goal of becoming the owner of an NBA team.
Jordan argued that his pursuit of NBA ownership relieved him of an obligation to mitigate damages by seeking other endorsement opportunities. The court didn't buy it:
In short, the argument that Jordan acted reasonably by focusing solely on his efforts to become an NBA team owner is a red herring. It may have been reasonable for Jordan to focus on becoming an NBA team owner in the scope of Jordan's overall future desires but that does not mean it can support a determination that he was relieved of his obligation to mitigate damages in response to MCI's rejection of the Agreement.

Furthermore, Jordan did not have to pursue any endorsement, such as one that would be beneath a celebrity of Jordan's stature, e .g., endorsing a product likely to be distasteful to Jordan or his fans. Jordan had the duty to take reasonable efforts to mitigate, such as by seeking another endorsement for an established, reputable company for compensation near to what he received from MCI. MCI has established that there is no genuine issue as to whether Jordan made reasonable efforts to do so. The Court finds that as a matter of law Jordan has failed to mitigate damages.

Posted By : Geoffrey Rapp

Tom Brady to Father Child Out-Of-Wedlock: What Does It Mean?

Message posted on : 2007-02-19 - 00:07:00

Before I discuss today's news about New England Patriots quarterback Tom Brady, I thought it would be helpful to first examine legal and sociological trends relating to the subject du jour: out-of-wedlock children.

Since the 1970s, out-of-wedlock births in the United States have soared, as about 37% of all American children are now born without married parents, in contrast to less than 10% in the 1960s and less 5% in the 1950s. There are many possible explanations for this increase, such as change in attitudes toward sexual behavior, less social pressure to get married, fewer legal constraints to divorce, and other theories carefully studied in George A. Akerlof & Janet L. Yellen's "An Analysis of Out-Of-Wedlock Births in the United States" (Brookings Institution) and more ideologically, though nonetheless thoughtfully studied in Patrick F. Fagan's "Where is the Love?" (National Review).

Thankfully, every state has passed laws to ensure that these children enjoy the same legal protections as other children. For instance, Chapter 209c of the Massachusetts General Laws commands that "Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children." Moreover, the social stigma attached to a child born out-of-wedlock has dissipated considerably in modern times.

Celebrities and entertainers--perhaps only because we notice their lives--seem to display a particular penchant for having children out-of-wedlock. We all followed the birth of Suri Cruise to her (at the time) unwed parents, Katie Holmes and Tom Cruise. Less famously, but still notably, award-winning actress Patricia Arquette of the show Medium has two children out-of-wedlock, as does actor/musician/freerider Kevin Federline. And of course, the nation is closely following the legal battles over which of three men could be the father to the late Anna Nicole Smith's baby girl, Danielynn.

Professional athletes and their out-of-wedlock children have also received public notice. Indeed, reports persist that many NBA players have fathered children out-of-wedlock. Consider, for instance, former NBA player Shawn Kemp, who is said to have fathered at least seven kids out-of-wedlock. Or consider Larry Bird, who was otherwise adored by Bostonians but received some critique for not having a relationship with a daughter he fathered out-of-wedlock. Similar stories have been said of MLB, NFL, and NHL players, some of whom have been sued for failing to pay child support.

So it probably shouldn't come as a surprise to learn that another pro athlete, this time Tom Brady, is going to father a child out-of-wedlock. The mother of his child is actress Bridget Moynahan, whom Brady broke up with two months ago, right before Christmas. Brady is now said to be dating supermodel Gisele Bundchen. He will certainly have the financial wherewithal to pay child-support, and unless there is question as to whether he is the father (and there is no indication of that), then this story will not attract legal attention.

But still, one might say that there is a glaring--if entirely predictable--disconnect between how the New England Patriots, and in particular their "brilliant" head coach Bill Belichick and "All-American" quarterback Tom Brady, are revered for their on-field exploits and how their personal lives do not seem nearly as laudable. We've talked about Belichick's alleged extra-marital affair with a New York Giants secretary, and now we see Brady set to father a child with a woman he recently dumped. That only brings to mind Charles Barkley's famous line, "I am not a role model." And it's a powerful reminder that no matter how graceful and inspiring they appear on-the-field, pro sports personalities are just regular folks, with the same vices, flaws, and other defects that all people have, expect, possibly, greater capacity and temptation to act on them.

Posted By : Michael McCann

Being John Amechi, but not being Tim Hardaway

Message posted on : 2007-02-17 - 11:21:00

I have waited a couple of days to blog about John Amechi's new book in which he announces that he is gay (the first active or retired NBA player to come out). Or about the nuclear explosion in the wake of former All-Star Tim Hardaway's statements on a Miami radio program this week:

"You know, I hate gay people, so I let it be known. I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States."


It only has gotten worse for Hardaway as his recent attempts at damage control have included apologies, non-apologies, and the statement that he would disown a gay family member. The NBA dismissed Hardaway from his official role in All-Star Weekend events. It remains to be seen what becomes of his broadcast job.

I do not have a coherent picture to paint of this incident, other than to store it as another example of how free expression plays out in sport. For now, though, some totally random thoughts:

First, Hardaway's comments took the spotlight off the previous leader in the "What Were They Thinking When They Said That?" Competition: the Sixers' Shavlik Randolph, who said, when asked about Amechi's revelations, that he was fine with it "as long as you don't bring your gayness on me." This one is funny, just because I have no idea what it means. I am not sure if Randolph meant: a) Don't have your sexual orientation rub off on me, like a cold or b) Don't hit on me. Either way, nothing like a couple years as a student at Duke to give someone a nuanced, enlightened understanding of the world.

Second, I cannot tell what impact Amechi coming out will have. It should drive home the point that there are gay professional athletes out there. And it makes some sense that the first player to come out is not a superstar, but a journeyman who has less to lose by bringing the political issue to the fore.

Third, this incident is a good barometer of where American society and sport (as its own insular society) is on this issue and how far we have to go. On one hand, the initial (pre-Hardaway) positive reaction to the revelation by current and former players suggests a level of acceptance that, perhaps, is higher than we might have expected. Maybe professional team sport is ready for an openly gay athlete--as opposed to the closeted gay athletes who, statistically speaking, are already in the locker room.

On the other hand, Hardaway's comments--blunt, abrasive, and offensive though they may be--may be an accurate reflection of the majority view among NBA players. Men's sports, especially men's team sports, remain (along with the military) the last bastion of high-testosterone, hierarchical, male-bonding machismo, with which homosexuality is (perceived to be) incompatible. I get the sense (with no real empirical or evidentiary support, just a feeling) that women's sports is a little more accepting of lesbian athletes and coaches (the controversy at Penn State notwithstanding). Actually, society in general is more accepting of lesbians than gay men. The point is, maybe we are not as far along as we would like to think.

Fourth, Hardaway actually deserves some credit for his honesty. I believe he holds those beliefs about homosexuality deeply and sincerely (although I do not know their source). And again, I believe many athletes hold similar (if less sharply stated) beliefs. But I am convinced there is a benefit to hateful thoughts being brought to the surface, to knowing who holds those ideas and to being able to respond to them (as the NBA and much of the media has done). I also may be unique in actually preferring that Hardaway not apologize, that he stick to his beliefs (and let me know what they are) and bear the consequences of those beliefs. (As a side note, I have said the same thing about those who express hateful views, and then try to half-apologize in the wake of an angry response, about groups of which I am a member).

Fifth, I do feel bad for Hardaway that his world is falling down around him, because (listening to the radio interview) it sounds like he did not quite know what he was walking into. I am not suggesting that he was ambushed or that he is being treated unfairly. Only that he seems not to have given much thought to the real-world consequences of his statements. There may be something to a column that ESPN's Jeff Pearlman wrote several months ago, suggesting that we ought not look to athletes for political ideas, because many (not all, but many) live in a highly insulated world.

It is hard not to think of Al Campanis, whose long career as a scout and executive for the Dodgers (the team that lead the way in integrating baseball) ended abruptly in 1987 with some ignorant and incoherent (but far less hate-filled) comments about African-Americans lacking the "necessities" to be managers and general managers.

On the other hand, Campanis did kick-start the conversation that has lead, too slowly I admit, to improvements in the number of minorities in management and executive positions. Maybe this controversy will, in the end, advance the cause of gay athletes.

Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-02-16 - 11:55:00

Lots of good stuff this week, thanks in large part to our friends at Marquette and Tulane:
Danette R. Davis, The myth & mystery of personal seat licenses and season tickets: licenses or more?, 51 ST. LOUIS UNIVERSITY LAW JOURNAL 241 (2006)

Ian Dobson, The wrong gameplan: why the Minnesota Vikings' failure to understand Minnesota's value dooms their proposal for a new stadium and how the team can improve its future chances, 33 WILLIAM MITCHELL LAW REVIEW 485 (2006)

Cristen F. Hartzog, Note, The “public use� of private sports stadiums: Kelo hits a homerun for private developers, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOY LAW 145 (2006)

Michael J. Cramer and James M. Swiatko, Jr., Did Major League Baseball balk? Why didn't MLB bargain to impasse and impose stricter testing for performance enhancing substances?, 17 MARQUETTE SPORTS LAW REVIEW 29 (2006)

Casey Shilts, Kate Jett & Brett Lashbrook, Major League internationals with Minor-League titles: let them in. Let them play. 17 MARQUETTE SPORTS LAW REVIEW 69 (2006)

J. Gordon Hylton, The Major League Baseball Players Association and the ownership of sports statistics: the untold story of round one, 17 MARQUETTE SPORTS LAW REVIEW 87 (2006)

Robert H. Lattinville & Robert A. Boland, Coaching in the National Football League: a market survey and legal review, 17 MARQUETTE SPORTS LAW REVIEW 109 (2006)

Martin J. Greenberg, Termination of college coaching contracts: when does adequate cause to terminate exist and who determines its existence? 17 MARQUETTE SPORTS LAW REVIEW 197 (2006)

Timothy Davis, Avila v. Citrus Community College District: shaping the contours of immunity and primary assumption of the risk, 17 MARQUETTE SPORTS LAW REVIEW 259 (2006)

Patricia A. Cervenka, Free shoes for primary and secondary schools: playing by the rules of Title IX, 17 MARQUETTE SPORTS LAW REVIEW 285 (2006)

Janis K. Doleschal, Managing risk in interscholastic athletic programs: 14 legal duties of care, 17 MARQUETTE SPORTS LAW REVIEW 295 (2006)

Anne M. Wall, Intellectual property protection in China: enforcing trademark rights, 17 MARQUETTE SPORTS LAW REVIEW 341 (2006)

Lindsay M. Potrafke, Comment, Checking up on student-athletes: a NCAA regulation requiring criminal background checks, 17 MARQUETTE SPORTS LAW REVIEW 427 (2006)

James M. Swiatko, Jr., Index: Sports Law in Law Reviews and Journals, 17 MARQUETTE SPORTS LAW REVIEW 451 (2006)

Nikki Dryden, For power and glory: state-sponsored doping and athletes' human rights, 13 SPORTS LAWYERS JOURNAL 1 (2006)

Sean M. Hanlon, Athletic scholarships as unconscionable contracts of adhesion: has the NCAA fouled out?, 13 SPORTS LAWYERS JOURNAL 41 (2006)

Robin M. Preussel, Successful challenge, ruling reversed: why the Office of Civil Rights' survey proposal may be well-intentioned but misguided, 13 SPORTS LAWYERS JOURNAL 79 (2006)

Jay T. Cohen, Comment, I'll trade you Scott Podsednik for Alex Rodriguez: fantasy trademark and copyright protection, 13 SPORTS LAWYERS JOURNAL 133 (2006)

Michael Levinson, A sure bet: why New Jersey would benefit from legalized sports wagering, 13 SPORTS LAWYERS JOURNAL 143 (2006)

Anders Etgen Reitz, The NHL lockout: the trickle-down effect on European hockey, 13 SPORTS LAWYERS JOURNAL 179 (2006)

Jeffrey Hoffmeyer, Note, Fourth down and an appeal: the nonstatutory exemption to antitrust law, 13 SPORTS LAWYERS JOURNAL 193 (2006)

Antoinette Vacca, Boxing: why it should be down for the count, 13 SPORTS LAWYERS JOURNAL 207 (2006)

Bram A. Maravent, Is the Rooney Rule affirmative action? Analyzing the NFL's mandate to its clubs regarding coaching and front office hires, 13 SPORTS LAWYERS JOURNAL 233 (2006)

Jenni Spies, “Only orphans should be allowed to play Little League�: how parents are ruining organized youth sports for their children and what can be done about it, 13 SPORTS LAWYERS JOURNAL 275 (2006)

Tulane Moot Court Mardi Gras Invitational, Problem and Winning Brief, 13 SPORTS LAWYERS JOURNAL 291 (2006)

Posted By : Geoffrey Rapp

The Peculiarities of Beer Advertising and Major League Baseball

Message posted on : 2007-02-16 - 11:38:00

A new commercial in Japan for Asashi Beer--Japan's highest selling "biru" or beer--features Red Sox pitcher Daisuke Matsuzaka chugging down a cold Asashi. The ad also features Matsuzaka in his Red Sox uniform. The ad has drawn some attention since Major League Baseball does not allow its players to endorse alcohol domestically, although that rule does not apply to international markets. (also, and not relevant to this post: the ad would not be allowed in the U.S. because industry actors voluntary refrain from televised images of persons consuming alcohol). The basic thinking behind MLB's domestic ban is that beer is a potentially dangerous product and MLB doesn't want its players to promote it--particularly because young persons watching beer ads are more likely to drink, and MLB doesn't want to exacerbate the problem.

Fair enough. But if MLB is so worried about beer ads, why does it allow beer companies to advertise their products during games? Beer companies, in fact, love to air commercials during sporting events--and these ads have been found to expose children to dangerous behaviors. Consider the following findings from the December 2006 issue of the Journal of the American Academy of Pediatrics and from Bradley S. Greenberg and Sarah F. Rosaen in their article Television and Young People: Violence, Sex, Booze, and Greed, 2005 Michigan State Law Review 857 (2005)
Alcohol manufacturers spend $5.7 billion/year on advertising and promotion. Young people typically view 2000 beer and wine commercials annually, with most of the ads concentrated in sports programming. During prime time, only 1 alcohol ad appears every 4 hours; yet, in sports programming, the frequency increases to 2.4 ads per hour. Research has found that adolescent drinkers are more likely to have been exposed to alcohol advertising. Given that children begin making decisions about alcohol at an early age—probably during grade school—exposure to beer commercials represents a significant risk factor. Minority children may be at particular risk. ----Committee on Communications, Children, Adolescents, and Advertising, 118 Pediatrics 2563-2569 (2006)).

Alcohol ads appear about once every four hours during prime-time programming, 2.4 times per hour during sports programs, and about three times per hour for ads that are within sports programs, like billboards in a stadium. On popular teen and adult TV shows, alcohol is consumed in 71 percent of all programs and 65 percent of teen programs, but only 23 percent of the episodes associated alcohol with negative consequences. These depictions are of interest because modeling occurs more often when behaviors are unpunished, according to social learning theory.

Heavy exposure to alcohol advertising leads to the view that drinkers possess the positive qualities displayed-such as being attractive, having positive attitudes about drinking, drinking heavily and thinking that it is acceptable, and driving after drinking. In fact, the American Academy of Pediatrics found that 80 percent of young people think drinking is acceptable if there is a designated driver.
----Bradley S. Greenberg and Sarah F. Rosaen, Television and Young People: Violence, Sex, Booze, and Greed, 2005 Mich. St. L. Rev. 857 (2005).
Also, why do MLB and each individual team have official beer sponsors? And why can you buy beer mugs and glasses on MLB.com? And why do big league teams sell to beer companies the naming rights to certain seats, such as the Washington Nationals' Miller Lite Beer Pen? Heck, if beer is such a worry to MLB, why is it even sold at games?

Now, I recognize that there is a distinction between players affirmatively endorsing a product and the league licensing its name to be used in a product ad. I suppose one could argue that the former seems more "active" and a greater reflection of the league itself. But I'm not sure that distinction is so strong or even correct. After-all, why would those companies pay MLB lots of $$ if those licenses weren't valuable?

Along those lines, if MLB really wants to deter kids from getting hurt, why doesn't it prohibit smokeless tobacco?

Posted By : Michael McCann

Sports Litigation Panel with Alan Milstein and James Carroll

Message posted on : 2007-02-14 - 20:20:00

So you want to go into sports law, but don't want to become an agent? Well one avenue is to become a sports litigator or, more realistically, a litigator whose clients include sports persons or sports businesses/entities.

If that sounds interesting and if you are near Jackson, Mississippi, next Monday at Mississippi College School of Law we will have two of the most prominent sports litigators in the country give a talk on their work and getting into the sports litigation industry: Alan Milstein, who represented Maurice Clarett in Clarett v. NFL and two disabled jockeys in King v. Jockeys' Guild, and Jim Carroll, who represented Jerrell Powe in his legal efforts to play at Ole Miss. (See previous posts on Powe: Jerrell Powe Sacks the NCAA on 8/31/2006 & Jerrell Powe Drops Lawsuit Against Ole Miss on 9/17/2006).

Here are some details on the event and please do not hesitate to contact me with any questions if you would like to attend:

Sports Litigation Panel
A Discussion With Lead Attorneys from Maurice Clarett v. National Football League, Edwin King & Gary Donahue v. Jockeys' Guild, and Jerrell Powe's Litigation/Negotiation with Ole Miss and the NCAA

Hosted by the Mississippi College School of Law Sports and Entertainment Law Society.

Date
: February 19, 2007, from 11:45 a.m. to 1:00 p.m, in the Student Conference Center of Mississippi College School of Law, 151 East Griffith Street, Jackson, MS (directions available here).

Details/Panelists
: Professor McCann will moderate a discussion with two nationally-recognized litigators, both of whom have litigated on behalf of athletes in recent cases that have changed sports law. Food will be served at this event.
Professor Michael McCann (Moderator). Assistant Professor of Law, Mississippi College School of Law; Chair-Elect, AALS Section on Sports and the Law; and Co-Founder, The Project on Law and Mind Sciences at Harvard Law School. Professor McCann holds an LL.M. from Harvard Law School, a J.D. from the University of Virginia School of Law, and a B.A. from Georgetown University. While a Visiting Scholar/Researcher at Harvard Law School, he worked for Alan Milstein in Clarett v. National Football League.

Alan Milstein. A partner at Sherman Silverstein Kohl Rose & Podolsky in Pennsauken, New Jersey, Mr. Milstein holds a J.D. from Temple University School of Law, M.A. from the University of Kansas, and B.A. from the University of Maryland. He litigated on behalf of Maurice Clarett in Clarett v. National Football League, a case involving a prominent college football player seeking early entry into the NFL. He also litigated on behalf of two jockeys in King v. Jockeys' Guild, a case involving disabled jockeys who were denied disability funds from their guild. He periodically represents other professional athletes in litigation.

James Carroll. A partner at Carroll, Warren & Parker in Jackson, Mississippi, Mr. Carroll holds a J.D. from the University of Mississippi School of Law and a B.A. from Millsaps College. He litigated and negotiated on behalf of Jerrell Powe, a prominent high school football player seeking to attend the University of Mississippi and play for their football team, but who ran into objections from the NCAA over academic eligibility.

Posted By : Michael McCann

Performance Enhancements in NASCAR

Message posted on : 2007-02-14 - 10:15:00

AP auto racing writer, Jenna Fryer, reports that NASCAR, in an effort to crack down on cheaters, made its strongest statement to date by suspending the crew chiefs for drivers Matt Kenseth, Kasey Kahne, Scott Riggs and Elliott Sadler and docked all four drivers points before the season-opening Daytona 500 ("Crew Chiefs Suspended for Daytona 500"). All four cars failed qualifying inspection. Two of the crew chiefs each received a 4-race suspension and a $50,000 fine, and the other two each received a 2-race suspension and a $25,000 fine. According to Fryer, "all four drivers will start the season with negative points - a move that most likely infuriated the teams, but sent a strong message that NASCAR will no longer tolerate rule-breakers." Another driver, Michael Waltrip, who had a car part seized and shipped back to North Carolina for further analysis, is also under investigation.

Here are some excerpts from the article:
But after three cars failed inspection during Sunday's qualifying session, NASCAR decided it had up the ante to deter teams from continuously pushing the envelope....Still, NASCAR stopped short of kicking the teams out of the race, a move many believe would be the ultimate punishment. "We're going to get tough with the competitors when they push the credibility of the sport," France said Tuesday during his state of the sport address.... Kenseth and Kahne had their qualifying times thrown out after inspectors discovered illegal holes in the wheel wells, which could have improved aerodynamics. Evernham maintained the holes had been covered with duct tape that apparently fell off before the Dodge was inspected. But Pemberton said NASCAR believed the tape had been cut. Riggs and Sadler's cars both had modifications that allowed air to leak out of the trunk area. It was discovered before qualifying and had not been announced by NASCAR before Tuesday. Waltrip, meanwhile, had a suspicious substance in the intake manifold of his Camry. The part was seized before qualifying, and the car was impounded after the session.
Reading the article, I couldn't help but draw some analogies to steroid usage. So I wonder what the future has in store for NASCAR? Fast forward ten years from now:
  • Congress calls upon NASCAR to inspect cars more frequently and impose stiffer penalties upon drivers. According to one congressman, "It's outrageous that NASCAR for years has failed to include nitroid on its list of banned parts. I can remember the days when Dale Earnhardt's only competitive advantage was a fresh can of Quaker State."

  • Despite the fact that Danika Patrick's car has never been inspected positively for nitroid usage, NASCAR fans begin to seriously question her success in recent years, especially her string of consecutive Nextel Cup titles. One sports writer notes that Patrick was never that successful in her early racing years and says that "she never exhibited those sudden bursts of acceleration at the finish line like she does today." However, Patrick insists that she has become a much more experienced driver on the track over time as a result of vigorous training and participation in many championship racing events. Patrick has lost many endorsement opportunities and it's questionable whether she will ever be inducted into the NASCAR Hall of Fame.

  • Two sports writers from Daytona Beach publish a book entitled, "A Race of Shadows," which includes anonymous individuals who assert that Jeff Gordon has been using nitroid in recent years despite the lack of any positive inspections. The speculation has become so great that reports have surfaced that the France family may not attend the race in which Gordon will surpass Richard Petty for the most wins.

  • Gordon testifies in front of a grand jury that he thought he was pouring fuel cleaner in his car, not nitroid. Thereafter, federal investigators raid the computers of Gordon's mechanics and in the process confiscate thousands of computer files on other drivers' cars. Congress imposes mandatory nitroid inspections, and the Supreme Court for the first time addresses the issue of whether a car is "an extension of oneself" for purposes of the Fourth Amendment.


Posted By : Rick Karcher

New Sports Law Scholarship

Message posted on : 2007-02-12 - 20:14:00

New this week:
Diane Heckman, One Nation, Under God: freedom of religion in schools and extracurricular athletic events in the opening years of the new millennium, 28 WHITTIER LAW REVIEW 537 (2006)

Lindsay A. Oliver, NCAA: a lesson in cartel behavior and antitrust regulation, 8 TRANSACTIONS 7 (2006)

Posted By : Geoffrey Rapp

Should an honorable bonehead get to change his name to "Peyton Manning"?

Message posted on : 2007-02-12 - 10:30:00

Via Above-the-Law, the press reports that Chicago Bears fan Scott Wiese has filed papers to change his name to "Peyton Manning" after losing an unspecified Super Bowl bet:
Wiese, a die-hard fan of the Chicago Bears, signed a pledge in front of a crowd at a Decatur bar last Friday night that if the Bears lost Sunday's Super Bowl, he'd change his name to that of the man who led the Indianapolis Colts to victory.

Final Score: Colts 29, Bears 17.

So on Tuesday, Wiese went to the Macon County Courts Facility and started the process of changing his name.

"I made the bet, and now I've got to keep it," said the 26-year-old, who lives in Forsyth, just north of Decatur.
From a legal perspective, I'm not sure he's bound to keep it (Contracts experts please chime in), but there's also the issue raised in some commentary of whether he's allowed to change it. Perhaps a certain Colts QB will have something to say about whether he's got a protectable property interest (right of publicity) in his good name. Illinois law (see 735 ILCS 5/21-101) provides:
If any person who is a resident of this State and has resided in this State for 6 months desires to change his or her name and to assume another name by which to be afterwards called and known, the person may file a petition in the circuit court of the county wherein he or she resides praying for that relief. If it appears to the court that the conditions hereinafter mentioned have been complied with and that there is no reason why the prayer should not be granted, the court, by an order to be entered of record, may direct and provide that the name of that person be changed in accordance with the prayer in the petition. . . .[A]ny person convicted of a felony in this State or any other state who has not been pardoned may not file a petition for a name change until 10 years have passed since completion and discharge from his or her sentence. A person who has been convicted of identity theft, aggravated identity theft, felony or misdemeanor criminal sexual abuse when the victim of the offense at the time of its commission is under 18 years of age, felony or misdemeanor sexual exploitation of a child, felony or misdemeanor indecent solicitation of a child, or felony or misdemeanor indecent solicitation of an adult, or any other offense for which a person is required to register under the Sex Offender Registration Act in this State or any other state who has not been pardoned shall not be permitted to file a petition for a name change in the courts of Illinois. . . .
No word on whether Mr. Manning nee Wiese has a felony record (although if he's the same Scott Wiese that participated in this this U-Wisconsin science fair, that seems unlikely)...

Posted By : Geoffrey Rapp

Pound for Pound and Non-Analytic Positives

Message posted on : 2007-02-11 - 21:47:00

The latest chapter in the Dick Pound saga unfolded quietly on Friday. Back in 2005, Lance Armstrong filed a complaint with the International Olympic Committee ("IOC") Ethics Commission after Pound, the head of the World Anti-Doping Agency, had publicly stated that there was "a very high probability" that Armstrong had used EPO during the 1999 Tour de France. On Friday, the IOC endorsed the commission's finding that Pound's remarks "could have been regarded as likely to impugn the probity" of Armstrong and were inconsistent with the IOC's goals of "a spirit of friendship, solidarity, and fair play." The commission also recommended that Pound be "remind[ed]...of the obligation to exercise greater prudence...when making public pronouncements that may affect the reputation of others."

Pound has often been criticized for publicly condemning athletes accused of doping violations prior to any formal findings of guilt. After Justin Gatlin and Floyd Landis (or, as Pound has called him, "Roid Floyd") each tested positive for abnormal levels of testosterone, Pound wrote a particularly inflammatory column in the Ottawa Citizen, stating:

We will have to wait for the United States Anti-Doping Agency (USADA) to organize an appeal process, since both are American athletes, before any formal sanction can be pronounced. Who knows, USADA may subscribe to a suggestion that both athletes, in separate sports, were ambushed by a roving squad of Nazi frogmen and injected against their will with the prohibited substances.

Pound is rarely shy when discussing drug use in sports. In any sport. Referring to Landis' allegedly elevated testosterone level during the Tour de France: "You'd think he'd be violating every virgin within 100 miles. How does he even get on his bicycle?" About the entire sport of cycling: "Take cycling in 2006. If 2006 were to be measured in the Chinese cycle, it would be the year of the Excrement." About the National Hockey League: "The NHL has reached a deal with their players that looks as though they found an early copy of the baseball policy on the floor somewhere." Pound then estimated that 1/3 of all NHL players used steroids, and when later asked for the basis of his estimate, explained: "It was pick a number....So it's 20 percent. Twenty-five percent. Call me a liar."

Pound, and WADA itself, have come under attack for what the LA Times has described as "a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals or challenges."

Yet, Pound continues to insist that WADA needs to "use every weapon" necessary to eliminate doping in sports– including the use of "non-analytic positives," or findings of violations based on circumstantial evidence rather than actual positive drug tests. (The general issues surrounding the use of non-analytic positives has been discussed in two law review articles--Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006); and Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by "non-analytical" cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006)). Non-analytic positives have been accepted by the Court of Arbitration for Sport ("CAS"), causing Pound to remark: "Finally a stake has been driven through the heart of the preposterous argument that you have to have a doping infraction by producing an analytical positive doping test." While Pound's use of the media continues to create controversy, his push for greater use of non-analytic positives might cause the greatest stir of all. It will be interesting to see, particularly in light of BALCO and Congress' "renewed support" for George Mitchell's steroid probe in baseball, if U.S. lawmakers make any attempt to pressure the leagues and players associations into adopting non-analytic positive standards in their drug testing policies.

Posted By : Gabe Feldman

New Sports Law Scholarship

Message posted on : 2007-02-10 - 14:02:00

Jeffrey Dunlop, Comment, Taxing the international athlete: working toward free trade in the Americas through a multilateral tax treaty. 27 NORTHWESTERN JOURNAL INTERNATIONAL LAW & BUSINESS 227 (2006)

N. Jeremi Duru, Fielding a team for the fans: the societal consequences and Title VII implications of race-considered roster construction in professional sport, 84 WASHINGTON UNIVERSITY LAW REVIEW 375 (2006)

Sue Ann Mota, Title IX, the NCAA, and intercollegiate athletics, 33 JOURNAL OF COLLEGE & UNIVERSITY LAW 121 (2006)

Posted By : Geoffrey Rapp

Virginia Sports and Entertainment Law Journal Symposium

Message posted on : 2007-02-09 - 20:11:00

Scott Dorfman of Virginia Law Weekly has an excellent recap of last week's sports and entertainment law symposium hosted by the Virginia Sports and Entertainment Law Journal and Virginia Continuing Legal Education. A number of Sports Law Blog readers were there, but for those of you who missed it, the recap does a nice job highlighting what was an outstanding event--in terms of substance, attendance, organization, really everything. For more on the symposium, check out this previous posting on our blog.

Update: In that same Virginia Law Weekly, I noticed that a columnist named Jerry Parker has an important column entitled "Why I Hate Peyton Manning." Check it out.

Posted By : Michael McCann

Accountability, Independence, and Finality (or Duke, Clemson, and Pine Tar)

Message posted on : 2007-02-08 - 14:28:00

Some of the comments to the post about O.J. Mayo have drifted to the issue of leagues and athletic associations scrutinizing game officials for their calls. I have discussed my concerns that having leagues looking over officials' shoulders makes the latter unable to do their jobs. On the other hand, some performance review is necessary to make sure officials are doing their jobs well and properly. This is the sports equivalent of the political debate between judicial accountability and judicial independence.

The line I suggest is that leagues and supervisors cannot interfere with the outcome of the game. There is a benefit, in sports as well as law, to finality of a result--once a game (or a case) has become final, bodies other than the court (i.e., game officials) should not interfere with that result. Even if we disagree with the result or with a decision or call by the official that lead to the result. This is, I think, especially true for discretionary decisions--did Mayo do something that warranted a technical foul for taunting?

Law generally agrees with this. Once a judicial decision becomes final (i.e., all layers of appeal and review have been exhausted), the legislature cannot undo or change that result or order the case done over. And leagues generally abide by this same notion.

We can see this from the ACC's response to last month's clock controversy in the Clemson-Duke men's basketball game. As you may recall, the game official delayed starting the clock on a play with 5 seconds left, giving Duke an extra 2+ seconds at the end of the game to get the ball up-court for a game-winning shot. There otherwise would not have been enough time to run the same play, meaning the game likely would have gone into overtime. (Via Deadspin here). The ACC admitted that an error was made, but in Deadspin's words, "after much careful consideration, have decided, 'fuck it.'"

Which was the entirely proper response. What else could they have done: Send everyone back to Cameron and pick up the game with the right amount left on the clock? Replay the entire game? Plus, there no doubt were many calls and non-calls throughout the game, some right and some wrong. Should all of them be up for review? And how can we tell which ones did or did not determine the outcome. Of course, this makes one wonder why the league bothered announcing that the officials had made a mistake, given that they could not do anything about the call with respect to the game.

Now, should the officials themselves be subject to some individual sanction or punishment (including termination) for making mistakes such as these, without affecting the game result? At some level, yes. The leagues have an interest in ensuring that officials are competent and doing a good job. So something clear--the ref forgot to start the clock--could be grounds for job action. But leagues must be careful in doing this, since officials need a certain degree of discretion -- was there enough contact on a given play that one player gained an advantage, warranting a foul? -- that is lost if they know they could be fired because the league disagrees with one or a few calls. Something more should be required before calls that the league disagrees with become the basis for suspending or firing an official. Plus, I think officials know when they have made a mistake like that--and presumably regret it and will try to make sure it does not happen again. A one-game suspension is not going to do much more.

The only time I can recall a game outcome changing because of a league finding of official error was the infamous Pine Tar Game between the Kansas City Royals and New York Yankees in 1984, which itself spawned some legal scholarship. But a couple things made that situation unique. First, we could point with absolute certainty to the effect on the outcome: if the call stands, that is the final out of the game. Second, it arguably was an example of the officials misunderstanding what the applicable rule required, as opposed to a decision of how to apply the rule in that situation. Third, baseball has a process for "playing games under protest" to the league, although never for purely discretionary decisions (safe/out or ball/strike or whether to eject a player).

And even then, the league's decision to order the game resumed from the point of the error (with the home run, and the Royals lead, reinstated) was not without controversy. It is certainly not something we want to see occur regularly in other sports.

Posted By : Howard Wasserman

NCAA Football Racial Hiring Woes

Message posted on : 2007-02-07 - 22:12:00

With a resounding win on Sunday night over the Chicago Bears, Tony Dungy, head coach of the Indianapolis Colts, and first African American to lead a team to a Super Bowl victory, has been widely credited with guiding his team through adversity to the promised land of World Champion. In the days following the Colt's Super Bowl victory, Dungy has been referenced as “smart,� “classy,� a “defensive whiz,� “bright,� and “intelligent,� among so many other well deserved superlatives.

But when can we expect Dungy's status to become "genius"? Like Bill Belichick genius? Or Bill Walsh genius? Or Mike Holmgren genius?; Or Bill Parcells genius? Or Mike Shanahan genius?; Or even Eric Mangini genius (after one season as a head coach now being widely referred to as “Mangenius�).

Do American sportswriters have difficulty calling an African American coach a genius? That superlative flies freely for successful white coaches. But how often do you hear Tony Dungy, Lovie Smith or Marvin Lewis in the same sentence as “genius.� Further, do Americans in general have trouble believing the genius that is apparent in so many people of color in everyday society?

Thankfully, Dungy has not been described as “articulate� or “clean� by any of the pundits covering the Super Bowl.

As Dungy was decisively winning Super Bowl XLI, Delaware Senator Joseph Biden stepped into a firestorm of criticism when he referred to presidential hopeful Barack Obama as “articulate� and “clean.� Biden, when asked about his potential presidential rival stated that Obama was “the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.� America's media jumped on Biden for perpetuating an age old stereotype that surprise should accompany a black man who is “articulate� or “clean.� “When whites use the word [articulate] in reference to blacks, it often carries a subtext of amazement, even bewilderment.� President George W. Bush just days later, also referred to Obama as “articulate.� Biden has been backtracking for days now. No word on whether Bush intends to backtrack.

Still, are Biden and Bush's discriminatory comments symptomatic of a larger American problem that trickles all the way back to African American coaches? Biden and Bush's use of “articulate� to describe Obama hearken back to former Dodgers' GM Al Campanis who, when responding to a question as to why Major League Baseball did not have more black managers stated: “I don't think it's prejudice. I truly believe that [blacks] may not have some of the necessities to be, let's say, a field manager or perhaps a general manager.�

While the Rooney Rule has arguably led to 20% of NFL head coaches being African American, what is the reason behind only six head coaches (out of 119 positions) in Division I NCAA football being African American (a dismal .05 % of all head coaches)? This “inexcusably low� number of minority head coaches in NCAA football cannot easily be explained away. Over 50% of all NCAA football players are African American. Black assistant coaching ranks have swelled in recent years. So, what is the source of this dismal reflection? Surely, it cannot be that current Athletic Directors' and University Presidents' tack toward Campanis's way of thinking? Do they simply not know who the capable black candidates are? Is the “good old boy� network perpetuating this whitewash of college football head coaching ranks?

D.L. Hughley, comedian and actor currently playing on NBC's “Studio 60 on the Sunset Strip� captured this conundrum beautifully in the New York Times when he said (while referring to Biden's "articulate" comment): “Everyone was up in arms about Michael Richards using the N-word, but subtle words like this are more insidious. It's like weight loss. The last few pounds are the hardest to get rid of. It's the last vestiges of racism that are hard to get rid of.�

When will the NCAA assist its member institutions in ridding themselves of some of the "last vestiges of racism," particuarly on the football head coaching front?

Need they be reminded: Tony Dungy is a genius.

Posted By : dre cummings

Thomas Jefferson School of Law Annual Sports Law Conference

Message posted on : 2007-02-07 - 11:53:00

On Saturday, February 10, the Thomas Jefferson School of Law and its Sports Law Society will be hosting the law school's 5th Annual Sports Law Conference. I am excited to be a panelist at the event. I will be joined by a number of terrific panelists, including baseball agents Barry Axelrod and Robert Teaff as well as Nashville Predators general counsel Chris Whitson and Hang Ten general counsel Joanna Tsai. The Keynote Speaker will be David Cornwell, President of DNK Cornwell and former NFL assistant general counsel (and lawyer for Leigh Steinberg in his lawsuit against David Dunn). Topics include licensing and sponsorships in the sports industry, labor issues in the sports industry, and steroid policies. I will be speaking on labor issues in the sports industry, and I look forward to my first trip to San Diego in over 20 years.

Special thanks to Professor Julie Cromer and Sports Law Society President Brenda Foster for the invitation to participate. For more details on the event, which offers three CLE credits, click here, and to register click here.

Posted By : Michael McCann

Marquette University Law School to Offer LL.M. in Sports Law

Message posted on : 2007-02-05 - 19:26:00

Marquette University Law School, which has an outstanding sports law program (including the National Sports Law Institute, the Marquette Sports Law Review, a certificate in sports law, and an excellent group of sports law professors), is pleased to announce that, starting in August 2007, it will offer an LL.M. in Sports Law for those with a bachelor of laws degree (LL.B.) or comparable first law degree from a degree-granting institution outside of the United States.

Detailed information about this unique program is available here, and the school's press release is below. Congratulations to Matt Mitten, Gordon Hylton, Patricia Cervanka, Paul Anderson, and all of the other distinguished sports law faculty at Marquette.

Posted By : Michael McCann

Can You Change the Outcome of Games By Wishing and Believing?

Message posted on : 2007-02-05 - 13:46:00

Emily Pronin, a professor of social psychology at Princeton University who has conducted some fascinating research on sports fans, has a thought-provoking post up on The Situationist entitled "Think You've Got Magical Powers?" The post details her research on how many athletes and sports fans believe that they can influence the outcomes of games through ritual, thoughts, and other activities that have no apparent rational connection to the games. Here is an excerpt from her post:
In addition to experiments with voodoo hexes, we've also studied fans watching sports. In one study, subjects watched as a player shot baskets. Spectators were more likely to perceive that they had caused his success if they had first been asked to visualize his success (“Imagine the ball falling through the hoop�).

In another experiment conducted at a live basketball game (Princeton vs. Harvard), some spectators were given a task before the start of the game to think about how each of the starting players could contribute to it. Other audience members were not given this assignment (they instead were led to think about the players' appearances). At halftime, those who had thought about the players' potential contributions to the game reported having had more of an impact on the game than those in the control condition.

In another study, people watching the NFL Super Bowl on television felt more responsible for that game's outcome the more they thought about the game while watching it. Never mind that all of them had watched the game in front of a television at the campus student center.

Why would that be? Maybe the better question is, why not? Although the perception of mental power is (probably) without rational basis, the illusion of magic is comforting and, perhaps, adaptive. Belief in magic gives us hope, causal explanations, and the illusion of control – all of which we tend to crave – at times when any of those things might be hard to come by. Fears can be assuaged, threats can be tamed, stress can be eased, physical constraints can be transcended, and smoldering embers of hope can be rekindled when magic is possible.
For more, check out Emily's post on The Situationist. You can also read an article she co-authored entitled,“Everyday Magical Powers: The Role of Apparent Mental Causation in the Overestimation of Personal Influence,� which appears in the August issue of the Journal of Personality and Social Psychology.

Update: Shankar Vedantam of the Washington Post has an excellent story in Monday's Post on Emily and the studies she has co-authored, and Henry Abbott over at True Hoop has a thoughtful post on those studies.

Posted By : Michael McCann

More Pre-Super Bowl XLI Thoughts (or football-related marital disputes)

Message posted on : 2007-02-04 - 17:11:00

I offer a rooting-interest question on the eve of Super Bowl XLI that indirectly (alright, really indirectly) touches on the world of Sports Law Blog.

I am rooting for the Colts, in part because I want to see Manning win a Super Bowl (for many of the reasons I wanted to see Steve Young win one back in 1994-95). And in part because I developed a visceral distaste for the Bears during my freshman year in college. I hit a Chicago-area school the year after the Super Bowl Shuffle Bears and found Ditka too obnoxious and the media too fawning to be bearable (no pun intended). I still have not gotten over that (and I still cannot stand to listen to Ditka). But I digress.

My wife, born and raised in Baltimore, says I should not root for the Colts because of what they did to the city in sneaking away to Indianapolis in the middle of the night, tearing the heart out of a city that lived and died with its team. (Remember the movie Diner, where the woman had to pass a test of Colts knowledge in order for her boyfriend to marry her?). But whatever sympathy I had for the city (and my wife and I did not know each other back then) disappeared when Baltimore threw around a lot of money and a sweetheart stadium package to steal the Browns away from Cleveland, tearing the heart out of a city that lived and died with its team.

Her response is that what the Colts did was different, because they sneaked away in the middle of a snowy night. Baltimoreans went to sleep with a team and woke up without one. I say that is a difference in degree of obnoxiousness, but the crime is the same.

Thoughts as you enjoy the game?

Posted By : Howard Wasserman

Super Bowl XLI and the Law

Message posted on : 2007-02-04 - 16:08:00

As you get ready for Super Bowl XLI, here are some great articles to check out:

Adam Benforado over at The Situationist examines how Super Bowl ads activate a specific part of the human brain, and how corporate actors use that information to create a distorted sense of "choice" among consumers. Adam wonders about the legal and ethical implications of these ads:
Corporations don't exactly have a good track record when it comes to learning counterintuitive information about human decision making and then using it responsibly. Rather, the best approach for maximizing shareholder profit is to discover some seemingly-illogical detail about the human brain, use that knowledge to sell more widgets, and then convince the public that their naïve (and incorrect) beliefs about how they make choices are, in fact, correct.

Take big tobacco: as Jon Hanson and others have documented, after figuring out that nicotine was addictive and could compel people to buy Marlboros, cigarette companies made a concerted effort to both up nicotine concentrations in their products and convince people, through advertising, that they were rational actors who were not easily manipulated.

From the perspective of an entity that is charged, through our legal rules, with making money (and not with doing social good), it makes little sense to alter peoples' situations to get them to be better consumers and then tell them that you are doing it and that it matters. Why, that would be as silly as announcing a weak-side blitz to the quarterback before the play. Sure, it would be the nice, ethical thing to warn decent gentlemen like Manning and Rex Grossman of the imminent threat, but it's not part of the game we've developed. Football is a game where you can get blind-sided.
Daniel Engber over at Slate discusses how the NFL is cracking down on Super Bowl parties, provided those parties are "public gatherings" rather than "private showings." (thanks to Sports Law Blog reader Tony Swanagan for the heads up on this story). The real issue here, however, is how the NFL is interpreting section 110 of the copyright law, which enables citizens to show games to large crowds, provided they do not charge and provided they are "only using 'a single receiving apparatus of a kind commonly used in private homes." Does a big-screen plasma TV count as a "single receiving apparatus of a kind commonly used in private homes"? Engber writes:
Given the rapid changes in video technology and consumer spending habits, it's very difficult for the courts to make these determinations. That means the NFL lawyers have to decide for themselves when a screen is too big and it's time to send a threatening letter.
Have you placed a monetary bet on tonight's big game while in Pennsylvania? Well if you have, the Pennsylvania Attorney General's office is sorry to say (through Heidi Ruckno's article in the Wilkes Barre Citizens Voice) that you have probably broken Pennsylvania law:
Unless you're in Vegas today, you might to want think twice about placing a bet. If you threw $5 into the office pool or bet your brother-in-law $10 that the Bears defense couldn't handle Peyton Manning's offense, you likely broke Pennsylvania law.

According to Nils Frederiksen, a spokesman for the Attorney General's Office, the only legal forms of gambling in Pennsylvania are the state lottery, small games of chance such as Bingo, betting on horse races and the newly approved slot machine gambling. “It's a law by exclusion,� Frederiksen said. “The law doesn't say you can't have an office betting pool, but it does say that gambling is illegal in Pennsylvania except for those things.�
Last but not least, be sure to check out dre cummings' excellent Sports Law Blog post on the Rooney Rule in light of both head coaches in tonight's game being African-American.

Posted By : Michael McCann

9th International Sports Law and Business Conference

Message posted on : 2007-02-04 - 06:05:00

For our European and internationally-mobile readers, consider checking out the 9th International Sports Law and Business Conference in London on February 22-23, 2007. This conference is one of the leading sports law conferences in Europe and provides a broad overview of recent developments in the sports industry in the United Kingdom and throughout the European Union. Gordon Hylton of Marquette University Law School (and Chair of the AALS Section on Sports and the Law) participated in the 2006 conference and recommends it highly.
Posted By : Michael McCann

I Want My [Direc]TV.

Message posted on : 2007-02-02 - 17:26:00






Following the first televised sporting event in the United States—a 1939 baseball game between Princeton and Columbia—the New York Times predicted that televised baseball had no future:

Seeing baseball by television is too confining…..To see the fresh green of the field as The Mighty Casey advances to the bat, and the dust fly as he defiantly digs in, is a thrill to the eye that cannot be electrified and flashed through space….What would Christy Mathewson, Smokey Joe Wood, Home Run Baker, Eddie Collins, Frank Chance, Tris Speaker, Ty Cobb, Rube Marquard and those old-timers think of such a turn of affairs— baseball from a sofa! Television is too safe. There is no ducking the foul ball…

Baseball commissioner Ford Frick would later agree, expressing fear that televised baseball games would drive fans from the stadiums to their couches and bankrupt the sport. Frick thus pushed to limit the number of games broadcast on television and radio. Frick and the New York Times were, to put it mildly, a bit misguided.

Last week, Major League Baseball announced a proposal to carry its out-of-market “Extra Innings� television package exclusively on DirecTV for $700 million over seven years, thus cutting off access to most non-local games for the millions of people without access to a DirecTV satellite. Senator John Kerry quickly declared that he planned to bring the pending deal before the Federal Communications Commission, because, among other things, “a Red Sox fan ought to be able to watch their team without having to switch to DirecTV.� This followed on the heels of Senator Arlen Specter's announcement that he plans to draft legislation repealing the NFL's antitrust exemption under the Sports Broadcasting Act because the “football fans of America…are being gouged� by the shift from the broadcast of NFL games on network television to ESPN and DirecTV.

Congressional scrutiny of the “siphoning� of televised sports by cable and pay channels is not new. Several bills regulating sports broadcasting have been proposed by various members of Congress over the past thirty years, including the 1991 “Fairness to Fans Act�, which required professional sports leagues to limit the number of games broadcast on cable or pay television.

The current Congressional inquiries and the possibility of legal challenges to the MLB and NFL deals with DirecTV raise some interesting antitrust questions. I will briefly set forth some of the bigger issues here and hopefully address some of them at greater length in future posts. As an initial matter, it is worth noting that a group of fans actually filed a class action suit against the NFL in 1998, claiming that its deal with DirecTV violated the antitrust laws. The suit was settled before a court could ever reach the merits.

Before the case (Shaw v. Dallas Cowboys, et al., 172 F.3d 299 (3d Cir. 1999)) settled, however, the court did address a threshold question that is raised by the current (and pending) deal. That is, does the Sports Broadcasting Act (“SBA�) provide any antitrust protection for the NFL and MLB. The answer is clearly no. The SBA provides an antitrust exemption for the pooling of television rights of "sponsored telecasting" for the "organized professional team sports of football, baseball, basketball, or hockey." “Sponsored telecasting� is defined by the SBA and “does not include pay-per-view broadcasts,� such as DirecTV. The legislative history is similarly clear—for example, at the hearings before the House Antitrust Subcommittee in 1961, then-Commissioner Rozelle explained “that this bill covers only the free telecasting of professional sports contests, and does not cover pay TV.� (An interesting question to ponder for another day—that might become more relevant if the Beckham-ization of the MLS is successful —is whether or not the SBA applies to the pooling of broadcast rights for the sport of soccer, or is limited to the four enumerated sports).

A more difficult question, however, is whether the judicially created “baseball exemption� provides any protection for MLB. The Curt Flood Act of 1998, 15 U.S.C. § 27, et seq, lifted the exemption only as it pertains to labor issues for major league baseball players, and left the remainder of the exemption untouched. What remained untouched is unclear, and depends in large part on one's view of the scope of the original (pre-Curt Flood Act) baseball exemption. On one end of the spectrum, courts have held that the original exemption only covered major league player labor issues (Piazza v. Major League Baseball, 831 F. Supp. 420 (E.D.Pa. 1993)), and therefore the exemption no longer exists at all. On the other end, courts argue the exemption covers matters central to the “business of baseball� (Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003)), and therefore restrictions on television broadcasts of games are exempt only if such broadcasts are central to the game (the Southern District of Texas has already ruled that restrictions on radio broadcasts of baseball games are not exempt— Henderson Broadcasting Corp. v. Houston Sports Ass'n, Inc, 541 F. Supp. 263, 265-72 (S.D. Tex. 1982)).

Another interesting threshold question is whether the NFL or MLB would have any success arguing that they are single entities and therefore not subject to attack under Section 1 of the Sherman Act. Granted, major sports leagues have lost this argument virtually every time they have raised it, but the Seventh Circuit breathed some new life into the defense in addressing the NBA's television restrictions on superstations. In that case, Judge Easterbrook noted that sports leagues may be more properly viewed as “hybrids� and suggested that “an organization such as the NBA is best understood as one firm when selling broadcast rights to a network in competition with a thousand other producers of entertainment.�

The actual merits of any potential antitrust claims also present some tricky issues. For example, what are the anticompetitive effects of the deals? Senator Kerry claims that the MLB-DirecTV deal causes a reduction in output, a classic anticompetitive effect, because MLB's Extra Innings package is currently available to 75 million households through cable and satellite operators, but would only be available to 15 million households if shown exclusively on DirecTV. But, if all of the games are shown—as the MLB proposes to do—on MLB.com, is there any real reduction in output? And, even assuming there is a reduction, do professional sports leagues have sufficient market power to have an overall anticompetitive impact on the market, or are each of the leagues relatively small players in the overall market for sports (and entertainment) television with no ability to impact consumer welfare?

In 1984, the Supreme Court addressed some of these issues with respect to restrictions on television broadcasts of college football, but, putting aside the differences between college and professional athletics, the ability to broadcast games via the internet and other changes in technology call into question some of the conclusions made by the Supreme Court. Thus, while the NFL and MLB are likely to avoid even the whiff of antitrust litigation and possible exposure to treble damages, the DirecTV deals do raise a variety of slippery antitrust questions...

Posted By : Gabe Feldman

FIFA's "immunity" under challenge

Message posted on : 2007-02-02 - 09:40:00

For my last post, I chose a truly intriguing aspect of European Sports Law - the self-awarded legal "immunity" enjoyed by FIFA and its National Football Associations.

Under Article 62 (2) of the FIFA Regulations [r]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. I'm not going to go deep into the legal questions a provision of this kind entails, namely in the area of regulation and the relations between regulatory and judicial entities. Suffice to say that in Europe (as in the US or any other mildly civilized world...) the right to obtain redress in a court of law is a fundamental right of any citizen. The recent Belet report, finally approved by the European Parliament, clearly states that the submittal of claims in civil courts cannot be the subject of disciplinary action by FIFA, even if there is the need to preserve the integrity of FIFA's competitions. The report further challenges FIFA to amend its regulations so that balance can be struck between the individual right to address a civil court and the organization of competitions.

This obscure provision went relatively unnoticed for many decades, until sport became big business. The money involved in sport spurred the movement towards court rooms of which the Bosman decision is perhaps the most visible result. The aftermath of Bosman (it bares great resemblances to baseball's first cases as far as freedom of movement arguments are concerned) is ironic. It is a harsh decision that basically shattered football's transference system as it was know at the time, with well-documented effects to competitive balance in European Football. After Bosman, European courts have been cautious in their approach to sporting matters, afraid to once again disrupt football well-established model. Notwithstanding the increasingly lenient stance displayed by the judiciary, FIFA reacted violently to Bosman, enforcing Article 62 (2) in an attempt to preserve its regulatory power over football. Several cases have highlighted FIFA's recent stance: in Portugal, Gil Vicente, a small Premier League club was relegated because it submitted an action in a Portuguese Administrative Court, seeking to authorize the registration of one of its players, in what latter became known as the "Mateus Case". The case may yet end up in European Courts and it would come as a surprise if Article 62 were to be deemed compliant with European Law. There is no organizational goal or competitive integrity end that can justify this type of “immunity�. In fact, restrictions and its advantageous effects should be assessed in court.

After going through some of the American case-law involving professional leagues, I now wonder: what if an MLS franchise were to challenge any of the MLS rules in a court of Law? How would Americans react to FIFA's attempt to block the claim by imposing Article 62 on club and league?

P.S. - This was my last post. I deliberately chose to focus on football because it is the one sport that will allow us to adequately compare American and European case-law in the future. American sports have always been business and have merited legal treatment in accordance with the status. Still American courts have managed to take into account the specific features of sporting organizations and competitions. I believe the American Model is of great value to its European counter-part in this time of major changes.

I would like to thank the Sports Law Blog team for this invitation and especially Michael McCann. It has been a true honor. This blog is excellent. I would also like to thank the commentators for their great comments.


Posted By : LCN

progress realized?

Message posted on : 2007-02-01 - 02:24:00

Before the first snap from scrimmage, Super Bowl XLI will be like no other National Football League championship game in history. On the Chicago Bears sideline, Lovie Smith will pilot his team as the first African American head coach to ever lead an NFL team to the Super Bowl. Across the field will stand Smith's mentor and friend, Tony Dungy who became the second African American head coach (by about four hours) to lead his NFL team, the Indianapolis Colts, into a Super Bowl.

Whatever barriers existed between African American head coaches and the Super Bowl prior to this season, Dungy and Smith have shattered them in their exemplary displays of leadership, fortitude and dedication. Appropriately, one of the principal stories leading up to this Super Bowl has been the fact that for the first time in the forty one years of Super Bowl play, one of the participating teams will be coached by an African American. The magnitude of this event can not be overstated.

As Dungy has repeatedly asserted when commenting on this historical achievement, both coaches brought their teams to the brink of a championship by coaching the “right way.� For Dungy and Smith, that includes fostering a familial bond of respect with the players' in their charge and by refusing to engage in the “profanity� and “win or die� attitude displayed by many NFL head coaches. On Sunday evening, around 10:30 or 11:00 p.m. eastern time, an African American head coach will lift the Lombardi Trophy over his head triumphantly and will make history again as the first black head coach to win the title.

Perhaps lost amongst the deserved hoopla for Dungy and Smith was the relatively quiet hiring of Mike Tomlin by the Pittsburgh Steelers as their new head coach. Tomlin, the thirty four year old African American former defensive coordinator of the Minnesota Vikings becomes the first black head coach in the Pittsburgh Steelers seventy four year history. Tomlin becomes the sixth black head coach in the 2007 NFL joining Smith, Dungy, Herman Edwards of the Kansas City Chiefs, Romeo Crennel of the Cleveland Browns and Marvin Lewis of the Cincinnati Bengals. Last season seven African American head coaches stalked NFL sidelines, but the Oakland Raiders terminated Art Shell as head coach after one season and the Arizona Cardinals fired Dennis Green following three disappointing seasons.

Tomlin's hiring is striking and noteworthy for several reasons. First, the NFL adopted a rule in 2002 under the direction of then commissioner Paul Tagliabue that required each NFL club to interview at least one minority candidate each time a head coaching vacancy became available. This rule is commonly referred to as the “Rooney Rule.� The owner of the Pittsburgh Steelers is Dan Rooney, one of the most influential owners in professional sports and it is he who masterminded the rule as a means of opening access and opportunity to African American coaches. Failure to follow the rule can result in a stiff penalty (as Matt Millen and the Detroit Lions can attest after being fined $200,000 for hiring Steve Mariucci without interviewing a single minority candidate in 2003).

In interviewing Tomlin, Rooney was following the very rule that he helped to establish. The obvious purpose of this rule was to begin to introduce the young minority coaches in the league to the primarily older, white male owners of the NFL clubs. As in any “old boy network� scenario, individuals will hire who they know, and by in large, the older white male NFL owners knew the same cadre of coaches and contacts who for so many years were primarily, if not absolutely, white. The Rooney Rule has forced NFL owners to develop lists of promising minority coaches and to have them in for day-long interviews allowing the owners to become familiar with a group of candidates they had not known previously—a type of affirmative action for NFL hiring.

When long-time Steelers coach, and beloved Pittsburgh native Bill Cowher announced his resignation, the early speculation was that Rooney would stay in-house and offer the head coaching position to one of two successful white assistant coaches on Cowher's staff, offensive coordinator Ken Wisenhunt or offensive line coach Russ Grimm. Reports indicated that Russ Grimm would land the job with Pittsburgh, particularly after Wisenhunt was hired as head coach of the Arizona Cardinals. Yet, Rooney, in keeping with his rule, decided to interview the young, aggressive promising defensive coordinator of the Minnesota Vikings. Tomlin so impressed Rooney that he was offered the head coaching position almost immediately. Grimm left the Steelers to join Wisenhunt in Arizona.

The Tomlin hiring portends important changes taking place throughout the league. Minority candidates are becoming more routinely sought after as candidates. Bears' defensive coordinator Ron Rivera has received several head coaching interview opportunities as has San Francisco 49ers linebacker's coach Mike Singletary. As Marvin Lewis and Tony Dungy know, interviewing often around the league allows owners to get to know an individual. Which often leads to an opportunity.

Is the Rooney Rule responsible for this progress? Absent the Rooney Rule, would Tomlin have been contacted by Rooney for an interview? Had he not been interviewed, Tomlin would not have had the opportunity to impress Rooney with his presentation, preparation and potential. Absent the Rooney Rule would 20% of head coaches in the NFL be African American? Absent the Rooney Rule would two African American head coaches be battling on Super Sunday for the chance to again be a first?

And if this Rooney Rule appears to be working for the NFL, then what is the problem with the NCAA and head coaching jobs for African Americans in college football?

Posted By : dre cummings

Sports and Due Process (Or More Looking Over Game Officials' Shoulders)

Message posted on : 2007-01-31 - 23:17:00

O.J. Mayo of Huntington (W. VA) High School, purportedly the best high-school player in the country and bound for U.S.C. next fall, played in a high-profile basketball game Tuesday night against Lakewood (CA) Artesia High School. This was one of those increasingly common made-for-TV games; this one was played at Duke's Cameron Indoor Stadium between top-ranked high school teams, neither of which is particularly close to Durham, NC. Mayo scored 19 points before fouling out in Huntington's win.

This is worth mentioning on Sports Law Blog because Mayo needed a court order to play in the game.

Mayo (along with five teammates) was ejected from a game last Friday night. Mayo received two technical fouls, the second for taunting opponents after a second-half dunk. That technical lead to an on-court scuffle between players on both teams. Video is here. After the second technical, Mayo followed the official to the scorer's table; he and the official made some body contact (how much is in dispute) and the official fell to the floor. Under West Virginia Secondary School Activities Commission (SSAC) rules, a player ejected from a game is suspended for the next two games. And a player who in protest makes contact with an official can be suspended for up to one year.

But hours before Tuesday's game, Mayo won a Temporary Restraining Order from Cabel County Circuit Judge Dan O'Hanlon, allowing him to play in the game and prohibiting SSAC from enforcing its suspension rules until a hearing on February 9 to determine what process SSAC must give Mayo before suspending him. Stories here and here.

I have not read the court's order and am working off sports media reports, which often do not accurately capture legal detail. The stories contain pithy comments from one of Mayo's lawyers about how the players "deserve an opportunity to be heard before they are denied the chance of a lifetime because of an arbitrary enforcement of a rule they did not intend to violate." And another lawyer (who also is an assistant coach) insists Mayo did not intend to make contact with the official and, if anything, it was the ref who initiated the contact. You get the idea. I am opining off less-than-complete legal information.

That said, I cannot understand how the court could issue this TRO. I do not see what process Mayo should be entitled to that would allow him to avoid at least a two game suspension.

Take the ejection and put the bumping to one side for a moment. The SSAC rule is clear and (I believe) unequivocal: If you receive two technical fouls and/or are ejected, you sit two games. The only question is whether Mayo was, in fact, ejected because he received two technicals. That fact seems undisputed and indisputable. A hearing or other process from SSAC does nothing to change that. The rule is not being arbitrarily enforced--it kicks in whenever a player is ejected, as Mayo assuredly was. And whether Mayo or the other players intended to violate this rule (the point the attorney/coach made) is an utter non-sequitur; I assume no player ever intends to get two T's or intends to get ejected from a game. Intent is irrelevant to the rule.

So if a hearing will change nothing about the two-game/ejection suspension, the TRO should not have issued. One thing a plaintiff must show in order to get a TRO is that he is "likely to succeed on the merits"--that the claims he is bringing has merit. Mayo is making a due process argument, which means he has to show that he is entitled to some process and that it would make a difference. I do not see how it makes a difference as to this rule.

Unless, of course, Mayo wants a hearing so he can argue to SSAC that it should reverse the referee's decision to give him the second technical. If so, that is an extremely dangerous and bad idea, for reasons similar to what I discuss in an earlier post. Game officials have a difficult enough job without fear that their immediate in-game decisions, such as whether to call a violation, are going to be subject to reversal from above when they call something on the wrong player (a top-5 national star) at the wrong time (on the eve of a mythical national championship game). This is an example of the type of discretionary decision that must be largely immune from review if we want refs to be able to do their jobs. The notion that Mayo has a constitutional due process right to a hearing to ask SSAC to reverse the official's in-game determination would make sports contests ungovernable. This would set a bad precedent.

Now, the potential suspension for bumping the ref is a different story. Whether a bump occurred, whether it was intentional, and whether it was "in protest" all are in dispute and all are necessary for application of the rule. Plus, whether a suspension should occur and its length are within SSAC discretion, probably depending on the severity and intent behind the contact. A hearing is necessary to resolve those factual issues, so Mayo is entitled to some process before a bumping suspension is imposed.

But that alone does not justify the TRO that allowed Mayo to play on Tuesday. It seems that Mayo should have to sit, at a minimum, two games--the Cameron game and one more--as punishment for the ejection. Anything beyond that would be punishment for the bump and he is entitled to a hearing before such additional games are added.

But there was no reason for the court to interfere now. At least no reason beyond everyone wanting to see O.J. Mayo play in that particular game.

Posted By : Howard Wasserman

andre douglas pond cummings and Gabe Feldman: Guest Bloggers

Message posted on : 2007-01-31 - 11:02:00

We are thrilled to have two distinguished scholars guest blog: andre (dre) douglas pond cummings and Gabe Feldman.

dre is an associate professor of law at West Virginia University College Law, where he teaches sports and the law, civil procedure, and other courses. He's originally from Los Angeles and is a graduate of Brigham Young University (where he was on the track team) and Howard Law School. He later practiced law in Chicago at Kirkland & Ellis, where he represented NFL players and Hollywood screenwriters and novelists. He has won numerous teaching awards and has published articles in such scholarly journals as the Harvard BlackLetter Law Review, the Nebraska Law Review, the University of Louisville's Brandeis Law Review, and the Howard Law Journal.

Gabe is an associate professor of law at Tulane Law School, where he teaches sports and the law, antitrust, and other courses. He is a true Blue Devil, holding a B.A., M.B.A., and J.D. from Duke University. While in law school, he held legal internships with pro sports teams. He later practiced law in Washington D.C. at Williams & Connolly, where he represented a variety of sports entities, and also co-taught a sports law class at UVA Law. Gabe is the co-author of Sports Law: Cases and Materials, and will direct Tulane's sports law program with Gary Roberts becoming Dean of Indiana University School of Law in Indianapolis.

We very much look forward to posts by dre and Gabe.

Posted By : Michael McCann

Sports Leagues as Courts of Appeals

Message posted on : 2007-01-30 - 18:39:00

The NFL this week fined the Saints' Reggie Bush $ 5000 for taunting the Bears' Brian Urlacher during Bush's touchdown catch-and-run in the NFC Championship game. Bush pointed towards Urlacher (running several yards behind him) at the end of the run, then did a front somersault into the end zone.

What is interest is that Bush did not draw a taunting penalty on the play. In other words, the game officials on the field either did not see it (unlikely, because it was pretty hard to miss, especially the somersault) or did not think it was worth a flag. Given that, I wonder how appropriate it is for the NFL to assess a fine.

Compare the usual (although not absolute) practice of courts of appeals. They generally will not address issues that were not raised and considered by the trial court. And they generally will defer to certain decisions that trial judges are deemed better able to make from their on-the-ground vantage point in a case (usually involving things such as witness credibility and the like).

League-imposed fines can be seen as an additional punishment, imposed from above (on appeal, if you like) and directed towards the individual player, a supplement to the in-game punishment assessed by the game officials. Not every penalty flag warrants a player fine. But perhaps the league should stay its hand in the opposite situation. If game officials did not believe an infraction occurred at the time, the leagues should defer to that initial determination and not impose a penalty or fine after-the-fact.

Some of this gets into whether we trust game officials on the ground to get things right and whether review from above, usually with the help of video, is proper and necessary. But that gets into what I think of instant replay, which is another, much longer post.

Posted By : Howard Wasserman

The One and Only Berlusconi...

Message posted on : 2007-01-29 - 05:17:00


Mr. Silvio Berlusconi, the former Italian Prime-Minister, eternal President of the great AC Milan and owner of Mediaset, is perhaps better known for his less than commendable antics and over the top comments. However, he brings to international headlines a truly interesting case, at a time when the Italian Competition Authority just released its very own view on the need to collectively sell Italian Calcio's broadcasting rights. Mediaset, who reportedly paid over USD$ 65 Million for the right to broadcast Calcio's highlights, claims this summer's match-fixing scandal in Serie A devalued its TV rights, stating a strong loss in viewer interest in Serie A as a result of the relegation of top club Juventus and heavy punishments to AC Milan, Fiorentina and Lazio.

According to Il Corriere, Mediaset cites a 15 per cent drop in pay TV rights. After one of the main title contenders was relegated and three other major clubs heavily punished with the loss of points, the League lost at least some of its magnetism. And some 40% of all football viewers are fans of the proscribed clubs. Now Mediaset is taking legal action against the Italian football league. It seeks the reduction of the total price agreed upon for the right to broadcast the best moments of Italian soccer. The claim in itself, regardless of its merit, should be welcomed for what it entails in terms of mentality and is sure to make excellent reading.

Mediaset will try to establish the devaluation by resorting to available figures: (i) ticket sales in Serie A dropped 17.5%; (ii) Paying spectators in the first 13 rounds dropped 10%; (iii) Serie A Pay TV subscriptions dropped 14.8%; and (iv) Serie B Pay TV subscriptions increased by 52%, with Juve competing is the second tier this season. This should be enough to sustain the argument of a significant change in circumstances. Basically, if (i) the circumstances that were taken into account upon the execution of the contract have been subsequently and significantly altered and both parties could not have foreseen it; if (ii) the change brings significant economic imbalance to the contract; and if (iii) the change cannot be deemed inherent to the nature of the contract and the risks it entails, then the contract can be terminated or its price (as an element of the contract) reduced accordingly. Are we to assume that something of this sort might happen when contracting in the field of sports? The assumptions the parties took into account when agreeing upon the price certainly included the likes of Juve in Serie A and Fiorentina and AC Milan vying for a Champions League spot. Those assumptions are no longer valid. And match-fixing can hardly be deemed an inherent risk of any sporting activity.

This brings us to the Mediaset's second prospective argument: was the League negligent in its capacity as regulator of professional soccer in Italy? The regrettable state of affairs in Calcio's backstage had been mooted for years and one gets the feeling it was just a matter of time before the bubble of corruption burst. The League will certainly argue that it is not responsible for the actions of clubs, underlining the disappointing behavior adopted by club's managers in their undertakings towards success. While it may be tempting to let the League off, the fact remains that little had been done to prevent and punish match-fixing. And the League will find it very hard to shake-off its duty to supervise the legality of its clubs' deals. However, Mediaset is not likely to choose the path of negligence. Mr. Berlusconi would be falling into a trap. While the claim of negligence might further reduce the price he's paying for the highlights, it will no doubt prove very costly in terms of personal image. After all, the owner of Mediaset would be surging against the President of AC Milan: the one and only Mr. Berslusconi...

Posted By : LCN

NHL Players Approve Independent Investigation of Saskin's Hiring

Message posted on : 2007-01-27 - 09:45:00

On Thursday this week, a majority of the 30 NHLPA-player representatives approved an independent investigation into the hiring of executive director Ted Saskin. Back in June, 2005, the union accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that former executive director Bob Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Goodenow was dismissed and, that same day, Saskin was hired as executive director.

Last October, I discussed the lawsuit filed against the NHLPA by a large dissident group of players alleging that "Saskin was never properly nominated for the position by the executive board." That lawsuit was dismissed this week by a federal court in Illinois for lack of jurisdiction. The judge agreed with the NHLPA that Ontario was the proper situs for the suit. Three days later, the players approved the investigation. Mathieu Schneider, a Detroit Red Wings defenseman and interim NHLPA executive committee member, said, "The purpose of the investigation is to clear the air, produce clarity on these questions and fortify a strong unified union."

Schneider would make a good politician some day. But in all sincerity, Schneider is absolutely right. An independent investigation makes perfect sense here because there is such a large dissident group of players. The last thing the players need is dissension among themselves. Also, an investigation is more efficient and cost-effective than a long drawn out discovery process tied up in court. Furthermore, the players don't need to convince a judge or jury whether Saskin should be removed or not; the players just need to convince themselves.

There appears to be some unanswered questions about exactly what information was disclosed to the player representative executive board members regarding the salary cap and the hiring of Saskin, and whether the players were fully informed in order to make proper decisions. The investigation will probably not provide all the answers. But the results of the investigation will either strengthen or weaken the dissident players' case and lead to a speedier resolution of this dispute, which serves the best interest of all the players and Saskin as well.

Posted By : Rick Karcher

Introducing The Situationist

Message posted on : 2007-01-26 - 17:29:00

Dear Friends & Readers:

I wanted to let you know that I am the co-creator of another blog, The Situationist, which was just made live today. The other co-creator is Harvard Law School professor Jon Hanson. The Situationist is part of the Project on Law and Mind Sciences at Harvard Law School, which Jon and I are also creating, and will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Some prominent social psychologists have already agreed to contribute, including, for example, Philip Zimbardo, perhaps best known for his "Stanford Prison Experiment." Posts will address current events and law and policy debates, informed by what social scientists are discovering about human behavior. Our first posts include:
I'll still be blogging regularly at Sports Law Blog, but will discussing many other topics at The Situationist. The two websites are connected more than they may seem. In fact, I will be examining sports from time-to-time on The Situationist and Jon and I intend to write a book on sports from a situationist perspective. I hope you give The Situationist a look and would welcome any feedback or suggestions.

Posted By : Michael McCann

Upcoming Symposium at Ripon College: Ethics in Sports

Message posted on : 2007-01-24 - 11:13:00

On February 1st and 2nd, the Ethical Leadership Program at Ripon College in Wisconsin is sponsoring a symposium featuring some very interesting and provocative panelists and keynote speakers, including Bud Selig and Myles Brand. Check out the program for the event.
Posted By : Rick Karcher

Tank Johnson Will Join the Bears in Miami

Message posted on : 2007-01-23 - 22:49:00

The Chicago Tribune just reported tonight that Terry "Tank" Johnson, defensive lineman for the SuperBowl bound Chicago Bears, has been cleared to travel to Miami with no restrictions. Tank had been under house arrest after police raided his home in the northern suburb of Gurnee, allegedly finding a number of handguns and assault rifles, for which Tank was not licensed (there are other reports that Tank was licensed in Arizona, but not in Illinois). Cook County prosecutors found this latest offense to be in violation of his probation that he received in November 2005 for an unlawful gun possession charge.

Johnson had been under house arrest, but allowed to go to work (Lake Forest for practice; Soldier Field for games), and would need special permission to leave the state, which he just received.

In other news, Johnson has not been charged in connection with the shooting death of his bodyguard/friend Willie Posey on December 16 while Johnson was with him at the River North club, Ice Bar.

As a Bears fan, I know that Tank is an essential part of the Bears D, especially in light of the losses of Mike Brown and Tommie Harris to injuries. As a lawyer, Tank seems to have complied with the conditions of his house arrest, but I hope that justice was blind here.

My main concern is that there are "no restrictions" on Tank while in Miami. Certainly there would seem to be a case here to restrict Tank to practice and the game as he is restricted while in Chicago. Any criminal lawyers with some insight here?

Posted By : Tim Epstein

Beckham just one of many advances

Message posted on : 2007-01-23 - 06:45:00

Following up on my post of January 18, click here for a break-down of some of the reasons why the future is bright for the MLS. Beckham was just one of many significant developments.
Posted By : LCN

Andre Waters and Concussion Liability for NFL Teams

Message posted on : 2007-01-22 - 10:13:00

Last week, the New York Times featured a troubling story about an expert's conclusion that former NFL Player Andre Waters' suicide may have been the result, at least in part, of concussions sustained during his football career.

While I hate to sound like a league defender, I wish the information on which this story was based had come from different sources...

The expert cited in the story is Bennet Omalu. According to the Times,
The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.
This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.

The Times story also indicates that Dr. Omalu's investigation was initiated after prodding by former Harvard football player and professional wrestler Chris Nowinski, author of a book called Head Games: Football's Concussion Crisis, as well as this myspace page and this fan page.

This is not to say that Dr. Omalu's conclusions are not based on some interesting developing science linking brain injury and depression. But it looks to me like this is a quasi-professional expert witness whose credentials have been a bit over-hyped by the Times. Moreover, while Nowinski may mean well, he does have a bit of a financial interest (in selling books) that would be served by both this NYT story and allegations that a former player's suicide (already a scandalous matter) resulted from, guess what, the very thing he's writing about. It's also fair to say that the credibility of a professional wrestler is, well, not exactly unimpeachable.

In any event, should Dr. Omalu's concerns be substantiated, the legal issues posed will be intriguing. What liability, if any, would attach to a team, or a team physician, for negligence or other tortious conduct leading to suicide? At one point in time, suicide was considered to be a superseding intervening act that severed the chain of proximate causation between "wrongful act" and "unfortunate result". The modern trend, however, allows suits against those who increase the risk of suicide, fail to prevent suicide or detect suicidal tendencies where suicide was a foreseeable outcome. Typically, these defendants are manufacturers of brain-altering medication or psychologists, psychiatrists and other therapists.

But why not a team, a league, or a team physician? If new science demonstrates a connection betweend depression and mild brain trauma, a team physician (now typically labeled an "independent contractor" to insulate the team from liability) who clears the player to return to play might bear some liability exposure. As one leading scholar explains:
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.
Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).

Is it fair to say that Waters would be barred by assumption of risk or other "limited duty" or "no duty" rules applicable in professional sports? As one psychology blogger notes,
Waters seemed to recognize the risks of his position. “Playing strong safety in the NFL, it's either kill or be killed like ‘Survivor,'� Waters said.
For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.

Posted By : Geoffrey Rapp

A New Dawn in F1

Message posted on : 2007-01-22 - 06:02:00

Formula 1 (F1) seems to have at long last found its feet in America. Not only has Indianapolis regained its place as a legendary F1 venue but Scott Speed scored a first valuable point for the Scuderia Toro Rosso - incidentally, Scott's performance may not be enough to secure him a driving seat for 2007. Meanwhile, the European Commission (Commission) has finally put an end to its investigation into the Formula One and other four-wheel motor sports. And it may change the face of the sport as we know it. In the late 90's, the Commission's attention was drawn to the regulatory and anti-trust issues regarding the governance of F1, centered on the role of the FIA.
The days of F1 as the playground of Bernie Ecclestone and the FIA may not be over just yet, but the repercussions of this long investigation represent a new dawn. We have to go back to 1994 to understand the sort of stranglehold Mr. Ecclestone had on the sport. Back then, F1 was directly run by the FIA (the sport's regulating body), FOA (which held the commercial rights to F1) and ISC (which had acquired F1's broadcasting rights for subsequent resale). The link between all three entities was Bernie Ecclestone, whether as a director, owner or founder. Throughout the whole process, the Commission's concerns revolved around four main issues:
(i) The need to guarantee that the regulating functions fall upon a body with no commercial stake in the sport, in order to avoid any conflict of interest between the ones who partake in it and the ones who lay down the rules;
(ii) The need to ensure that the agreements entered into by FIA, FOA and the teams, circuit owners and TV networks do not limit the ability of other undertakings to organize, participate and broadcast F1 events. Moreover, the Commission displayed concerns over the restrictive effects of such agreements on the inception and existence of rivaling competitions, which were not allowed to race in F1 circuits, to enter F1 teams or to be broadcast on channels that covered F1 races;
(iii) The need to ensure that FIA shares the Intellectual and Industrial Property rights arising from the competition with teams and other intervening parties; and
(iv) The need to limit exclusive broadcasting to 5 or 3 years, as opposed to the 10 years which were generally agreed upon.
While the inquiry lasted, SLEC (owned by the Ecclestone family along with three banks) became F1's major player. The Commission is now satisfied that FIA currently limits its capacity to regulatory functions which will allow the creation of potential inter and intra-brand competition between Formula One and similar races and series. Furthermore (...) broadcasters in the various countries will be invited to tender for the TV rights on the expiry of the current (and any future) contracts. (...) The parties have also reduced the length of free to air broadcasting contracts to a maximum three years (except for contracts where specific investments justify a length of up to five years).
F1, albeit a global sport, is structured in a very "European way". Utility purposes are still coupled with profitability goals, which is odd in a sport that is not seen as playing a relevant cultural or social role - if any sport should be "downplayed" as simple business, F1 is it. Is the separation of regulatory and commercial interests truly needed? Or should we just accept that the two go hand in hand? The professional leagues in America are the ultimate examples of this. There is no better motivation than the suggestion of money. But in Europe other considerations come to play with unwarranted strength. So it won't be a surprise if less and less European circuits feature in the list of F1 races in the future. It seems we are the only ones who snub the driving force behind all things in modern days...

Posted By : LCN

NBA Activates its "Security Forces" to Prohibit Players from Frequenting Nightclubs

Message posted on : 2007-01-21 - 17:29:00

According to Mitch Lawrence of the New York Daily News, the NBA has "ordered its security forces" to come up with a list of nightclubs that should be made off-limits to players:
In the wake of the Broncos' Darrent Williams' murder in Denver, and other shootings in that city involving pro athletes, the NBA this past week ordered its security forces in all 29 cities to come up with a list of clubs and other night spots that should be made off-limits to players. Once the clubs are identified, with the help of local law enforcement, the league will send a directive to teams mandating that players avoid those spots or be subject to a substantial fine.
Setting aside, for a moment, the dubious merits of this policy, it does not appear to enjoy the benefits of collective bargaining. The closest textual support it may obtain from the NBA-NPA collective bargaining agreement derives from Article VI, Section 11, which delineates "league investigations" into player behavior:
Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.
I suppose the NBA could characterize the policy as reflecting a broader and extended league investigation into player behavior, and that such an investigation has been contemplated by the respective parties to the CBA. There are several other sections from Article VI that might also lend the NBA textual support, but none appear sufficiently relevant. And without collectively-bargained support, it, like any non-collectively-bargained working condition, would be subject to antitrust review--and as Joe Rosen and I detail in our Case Western Reserve Law Review article, antitrust law is not especially tolerant of unilaterally-imposed league prohibitions on working conditions, particularly given the existence of the labor exemption, which is premised on the belief that employees are better off negotiating together than individually, particularly when negotiating wages, hours, and working conditions. Also expect a possible objection from NBPA head Billy Hunter, who might, on behalf of the NBPA, file an unfair labor practice charge with the NLRB, particularly if this nightclub prohibition--which, according to Lawrence, will enjoy police assistance--constitutes "spying on employees."

As to the merits of the policy, I suspect it will strike most players, fans, and media as patently paternalistic, even more so than the dress code (and this is a league, after-all, featuring a commissioner who calls NBA players "these kids"). While the NBA understandably has a vested interest in seeing its players represent their teams and league in a law-abiding way--and to do so at all times--going to a night club isn't against the law (although players obviously have to be 21 or older to drink there). It's an activity that some of the players, who are grown men, like to do, just like other adults like to do.

And if the NBA's sole concern is one based on a safety analysis of players at nightclubs, then shouldn't the league also prohibit them from drinking alcohol or eating fattening foods? How about if those same players travel back home to where they grew up--some of them are from some pretty bad neighborhoods, should those neighborhoods be put off-limits, too?

Update: Skip Oliva over at the Voluntary Trade Blog checks in with a thoughtful response to this post:
Even if Stern's idea has merit, why does it have to be imposed by the league office on all 29 teams? It's better to leave this type of player conduct issue to the individual clubs. Stern's centralism actually makes it more difficult for individual clubs–particularly coaches, who have far less power on most teams than star players–to maintain their own discipline. Paternalism reduces the incentive for individuals to take greater responsibility for their own actions.

McCann notes how arbitrary the nightclub prohibition is; will players also be prevented from drinking or returning home to “bad neighborhoods� in the name of protecting the league's image? Stern will certainly grab as much authority as he can before his media allies turn on him or, more likely, the lawyers get involved.

Update 2: David Wilson over at Sports On My Mind has a substantive analysis of this topic.

Posted By : Michael McCann

Upcoming UVA Law Symposium on Sports and Entertainment Law

Message posted on : 2007-01-21 - 11:17:00

On Friday, February 2, the Virginia Sports and Entertainment Law Journal and Virgina Continuing Legal Education will be hosting the first ever Virginia Sports and Entertainment Law Symposium. I am excited to be a part of it, as it will feature an engaging mix of practical and theoretical topics, as well as a dynamic array of speakers. The symposium will be held at the University of Virginia School of Law in Charlottesville. Here is the schedule:

FRIDAY, FEBRUARY 2

8:00 Registration

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

11:00 Break

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 — whether the client is an actor, director, writer, or studio production crew — 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

2:45 Break

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

FACULTY

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

Special thanks to Robby Forbes and Jenny Luetkemeyer, Editor-in-Chief and Managing Editor, respectively, of the Virginia Sports and Entertainment Law Journal, for their excellent organization and planning of this event.

For more information on the Symposium, including prices on attending, securing lodging, and obtaining CLE credit, please lick here.

Posted By : Michael McCann

Gary Roberts named Dean of Indiana University School of Law

Message posted on : 2007-01-19 - 21:07:00

Congratulations to Gary Roberts, Deputy Dean of Tulane Law School and Director of the Tulane Sports Law Program, on being named Dean of Indiana University School of Law in Indianapolis. Gary, who co-authors a leading sports law case book with Harvard Law School professor Paul Weiler, has extensive experience in sports law, including serving as President of the Sports Lawyers Association from 1995 to 1997. It appears that he will continue to engage in sports law, as his new school's Executive Vice Chancellor and Dean of the Faculties, Uday Sukhatme, says, "Sports law will continue to be a focus of Roberts' scholarly work at IUPUI, and this is most appropriate given the strong sports presence in Indianapolis."

Good luck to Gary on what is undoubtedly an exciting new experience. Also good luck to Gabe Feldman, who will be guest blogging here later this month and who will now be directing Tulane's excellent Sports Law Program.

Posted By : Michael McCann

Sports Over Law: Motion to Delay Trial to Accommodate Saints Fans

Message posted on : 2007-01-19 - 14:30:00

If you are a lawyer and a sports fan, you can certainly understand the following motion by defense counsel in Fay Thibodeaux Danos et al., v. Avondale Industries, Inc. et al., a case before a civil district court in Louisiana:
[The defendants] move to continue trial of this matter, which is currently scheduled to begin on January 22, 2007, by two days. Thus Defendants request that trial begin on January 24, 2007.

As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game -- the first such game in the franchise's forty-year history -- against the Chicago Bears in Chicago, Illinois on January 21, 2007, at 2:30 p.m. In order to accommodate all fans, including the majority of the jury pool, the parties involved in this case, and the counsel involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of the trial be pushed back two days to January 24, 2007.

Counsel for the remaining defendants in this matter have been contacted, and none objects to this motion nor its requested relief. Numerous attempts have been made to contact Plaintiff's counsel by telephone and by e-mail, with no response from Plaintiffs' counsel.
Several attorneys at the New Orleans law firm Sher, Garner, Cahill, Richter, Klein & Hilbert, LL.C., authored the motion. Clearly, that's a firm where time devoted to sports watching (and perhaps also "celebrating" while doing so) is valued. Tough to complain about that.

Posted By : Michael McCann

Living the Dream

Message posted on : 2007-01-18 - 13:16:00

I know the whole Beckham affair is "old news" by now. But what better topic is there for an European to write on an American Sports Law blog than the David Beckham $250M move from Real Madrid to the Los Angeles Galaxy? I think the issue is interesting for a number of reasons.
First and foremost, after the likes of Pele, Beckenbauer and our very own Eusebio were lured to the NASL in the 70's, the MLS has finally made itself available to the games' truly big names. Although overexpansion is a well documented cause for the failure of the NASL, the hiring of older, high profile foreign players, has been highlighted as the defining motive for the fiasco. The effort to bring in foreign "stars" placed an excessive strain on the league's finances. And for all their stardom, these players failed to elevate the game to levels of financial sustainability in the United States. After the implementation of the Designated Player Rule last November, it was only a matter of time before something like this happened. Future prospects for the game are buoyant with increasing media coverage and greater deals being signed and a city like LA will make the business qualities of the Beckhams (Posh included) all the more attractive. At 32, Becks still has a couple of years left in him. And considering he has never played the game as well as he sells it, the Galaxy franchise is not being conned. It is actually getting excellent value for its money. As for the greater good of the League, one has to admit that with a sound college system feeding the main division, and on the basis of the consistent showings by the US National Team, the time is right for the inception of the Designated Player Rule. If the game is to be taken to the next level, Becks and Co. are just the ones to do it.
It will also be interesting to see how other MLS major stars react to Becks' arrival. On $900,000 per year, Landon Donovan, one of the most recognizable faces in the LA soccer scene, is certain to undertake a reassessment of his career. Sportsmen tend to relate their salary with their on-field performance and their potential to deliver the goods, past statistics, etc. Marketability is not nearly as rated by players as it is by managers when it comes to salary assessment. Beckham could be just as good as Pele - which he is not - and the salary gap would still be virtually indefensible from a player's perspective. There is definite potential for the clash of egos in future editions of the League.
Finally, the spotlight once again falls upon the exceptions to salary cap mechanisms which have featured prominently in past MLB, NBA, NFL and NHL negotiations. As a matter of principle, an exception undermines the goal of competitive balance which is purportedly pursued by a salary cap system, because it allows richer clubs the chance to exert their financial domination by acquiring the services of the most talented players. However, smart management and clever allocation of central contracts and high levels of revenue sharing should control the damage potentially arising from this specific exception. On this matter, the ability to swap a designated player for draft picks could be the catalyst that perpetuates differences between high revenue and low revenue teams. Let's see if restraining Designated Players to two per team will be enough.
One final note: Europeans would do well to look at the Beckham Exception (could this be the new name for the Designated Player Rule...?). Salary Cap systems need to be flexible in order to accommodate labor and anti-trust considerations. Revenue sharing is the underlying element that facilitates cap systems in the American professional leagues. Revenue Sharing in Europe has only now started to come to life and is still incipient. The "Arnaut Report" (named after a Portuguese former Minister) insists that caps should be put in place in European Leagues, in order to curb the financial excesses of most of our clubs. Many arguments can be put forth here, but mine is one of principle: without effective revenue sharing, caps do not work and can even exacerbate the differences between high and low revenue clubs. Are we, Europeans, getting ahead of ourselves?

Posted By : LCN

Sports Judge for your Fantasy Sports Disputes

Message posted on : 2007-01-18 - 11:10:00

Anyone who plays fantasy sports knows that "disputes" can sometimes emerge within leagues. You probably what I'm talking about. How about a dubious late-season trade that is so lopsided that it must entail some "off-field" payment, but your commissioner, for whatever reason, won't intercede? Or how about some strange scoring formulas? Or some sketchy roster modifications? Worse yet, you often have nowhere to go if your commissioner doesn't help.

Well now you have an recourse: you can hire Marc Edelman to be your sports judge. Marc, a lawyer and avid fantasy sports player, has started Sports Judge, a service designed to provide "an impartial and effective method for resolving disputes with other teams." Basically, players in dispute with one another or with their commissioner can pay $15 (or $100 for an entire season) and Marc will study the dispute and issue an opinion from the bench of the "Court of Fantasy Football."

Marc has several sample opinions posted, including Hermann's Head v. Commissioner of the Yale Football League (Index No. 00257, Sept. 1, 2006). It is truly a great read, involving a claim "seeking to prevent the Commissioner of Yale Football League from changing the league's active roster size from eight players to nine players by adding a third active running back." Following a thoughtful and well-reasoned opinion, Judge Edelman concludes:
While there are certainly virtues to maintaining a large size roster in fantasy football, it would be neither fair nor reasonable to change the league's roster size after the draft is conducted. If the Commissioner had wanted a nine-player roster, he should have suggested this change before the draft was held -- possibly before the draft order was selected. Not only does the possibility exist that the Commissioner would not have suggested this rule change had the computer granted his team a higher pick, but the possibility also exists that a team such as Hermann's Head might have drafted differently had the Commissioner's proposed rule change occurred prior to the draft. Therefore, for the aforementioned reasons, I rule in favor of Hermann's Head. The Yale Football League roster size shall remain unchanged at eight active players (and just two active running backs) for the 2006 season.
There's some more great stuff on Sports Judge.

Posted By : Michael McCann

Luís Cassiano Neves: Guest Blogger

Message posted on : 2007-01-18 - 09:32:00

We are thrilled to have Luís Cassiano Neves guest blog. Luís heads the Sports Law Practice Group at Miranda, Correia, Amendoeira & Associados, a Portuguese law firm based in Lisbon. He holds a law degree from Lisbon University Law School and an LL.M. in Sports Law from the Nottingham Law School. Luís also founded Lex Sportiva, a terrific blog devoted to international sports law. We look forward to his posts.
Posted By : Michael McCann

All Politics is Sports

Message posted on : 2007-01-17 - 21:32:00

Recurring theme warning: Once again, legal and political questions play out in sports. This is precisely why I write about sports--it actually gives a window into broader legal and political controversies.

The latest is the debate over § 502 of the 2005 USA PATRIOT ActRe-authorization, which alters the method of filling vacancies in the position of United States Attorneys. Ordinarily, the U.S. Attorney for a judicial district is appointed by the President with Senate confirmation. Under prior law, if a vacancy arose, the Attorney General appointed an interim successor who served until the President appointed (and the Senate confirmed) a permanent successor or for 120 days, whichever came first; if 120 days expired without a newly confirmed officer, the United States District Court for that district appointed an interim successor to serve until a replacement was confirmed. Section 502 changes this procedure by allowing the AG's interim appointee to serve "until the qualification" of a new U.S. Attorney appointed by the President and confirmed by Congress; no more 120-day limit. This means that the AG can appoint someone who can serve indefinitely, without the President ever having to put a new nominee before the now-Democratically controlled Senate.

This has drawn criticism from Senators Leahy, Feinstein, and Pryor, who have introduced legislation to restore the former process for filling vacancies. Last week, they sent a joint letter to Attorney General Alberto Gonzales, expressing concern that the White House and Department of Justice were pressuring/forcing U.S. Attorneys to resign (11 had resigned or been forced out since March 2006, including several in the past few days) to be replaced by potentially long-term fill-ins with no opportunity for the Senate to review their qualifications. Many of those forced out had investigated or were investigating corruption and misconduct by various GOP officials, raising a suspicion that the President is punishing local prosecutors. Gonzales will testify before the Senate Judiciary Committee tomorrow.

So, to quote Field of Dreams, what's it got to do with baseball?

One of the U.S. Attorneys who was asked/forced to resign today is Kevin V. Ryan, of the Northern District of California, where the BALCO steroids investigation is taking place. It was Ryan's office that convened a grand jury to investigate the leaks that provided the basis for the book Game of Shadows and to the contempt citation and prison sentences for authors Mark Fainaru-Wada and Lance Williams when they refused to reveal the source of the leaks (post here). It was Ryan's office that used subpoenas and search warrants to seize the records on old positive steroid tests on almost 100 Major League baseball players (posts here and here). And it was Ryan's office that has been investigating (although not moving forward on) perjury and other changes against Barry Bonds for his allegedly false grand-jury testimony in the BALCO case.

For this forum, I am agnostic as to the charges by Feinstein, et. al, that the firings are politically motivated or that the administration is punishing prosecutors for going after certain people. But if there is political motivation, I doubt it is in play here. I do not think Ryan's going after Barry Bonds and other baseball players for using steroids and/or lying about it is the sort of thing that would rouse Bush or Gonzales to punish a U.S. Attorney. Nor do I think they would get moved to act against Ryan for seeking to put journalists in jail for protecting sources.

Still, one of Bonds' lawyers was quoted as saying that the interim U.S. Attorney appointed by Gonzales would likely "throw in the towel" on the Bonds investigation and that a capable, ethical prosecutor will stop "tarnishing" the image of the office by chasing Bonds.

Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-01-16 - 10:09:00

New this week:
Michael Conlin & Patrick M. Emerson, Discrimination in hiring versus retention and promotion: an empirical analysis of within-firm treatment of players in the NFL, 22 JOURNAL OF LAW ECONOMICS & ORGANIZATION 115 (2006)

Christopher T. Pickens, Comment, Of bookies and brokers: are sports futures gambling or investing, and does it even matter? 14 GEORGE MASON LAW REVIEW 227 (2006)

Erin A. Stanton, Student article, Home team advantage?: The taking of private property for sports stadiums, 9 NEW YORK CITY LAW REVIEW 93 (2005)
In addition, our frequent guest Chad McEvoy alerts me to the availability of his new co-authored article, which is not on Westlaw but can be downloaded free of charge from the embedded link:
Mark S. Nagel et al., Major Leage Baseball Anti-Trust Immunity: Examining the Legal and Financial Implications of Relocation Rules, 4 ENTERTAINMENT & SPORTS LAW JOURNAL (2006)

Posted By : Geoffrey Rapp

Is the Homeland Secure Enough for the 'Games'?

Message posted on : 2007-01-15 - 22:52:00


Below is the unedited version of an editorial I authored that was published by Crain's Chicago Business today. The edited version can be found here. The editorial came down in light of the USOC deciding that it would put forth a US bid (either LA or Chicago) to compete with Doha, Madrid, Istanbul, Rio, and Tokyo, on the international stage for the 2016 Games. The USOC's decision came just days after the Department of Homeland Security released its report of tactical interoperable communications ratings among and between American metropolitan areas. The report is interesting, both in terms of the ratings systems and the relative communications preparedness of different cities. A number of cities, including Chicago, have responded that Homeland Security gave no warning of what the findings would be and that encouragement of the efforts undertaken thus far by American cities is contrary to the written report.

Could Chicago's Low Disaster Readiness Score Endanger the Chances for the 2016 Games?

Both the USOC and the IOC indicated that political stability to see the long preparation for an Olympic games through from bid acceptance to closing ceremony is an important criterion, and with Mayor Daley's most serious challenger in Rep. Jackson dropping out of the next mayoral contest to enjoy the fruits of the new Democratic Congress, Chicago appears to be stronger on local government stability.

However, Homeland Security's release of its “Tactical Interoperable Communications Scorecards Summary Report and Findings� on Wednesday may have added a new obstacle to Chicago's bid as the USOC pits the Windy City's bid against Los Angeles.

In light of the poor communication between first responders in the Twin Towers on 9/11 that may have led to the unnecessary death of many NYC firefighters unable to hear NYPD communications to evacuate, Homeland Security sought to assess the interoperable communications between various groups, namely police and fire. The aforementioned report grades urban/metropolitan areas on Governance, Standard Operating Procedures (SOPs), and Usage.

As Olympic officials are very familiar with security issues, from Munich to Atlanta, tactical interoperable communications may be a factor in choosing a location. The scores in the three categories range from early to advanced implementation.

The current score for Chicago: Governance (early implementation), SOPs (intermediate implementation), and Usage (intermediate implementation).

The current score for Los Angeles: Governance (established implementation), SOPs (advanced implementation), and Usage (advanced implementation).

The USOC should keep in mind that the Chicago Urban Area includes the City, Cook County, and 128 municipalities, while the Los Angeles/Long Beach Urban Area includes only 26 municipalities and LA County. Such a disparity in the amount of independent departments that require cooperative communication between each other surely explains part of the disparity between the communications scorecards, but the message from Homeland Security is clear: do better.

Posted By : Tim Epstein

The Legal and Social Policy Implications of Bill Walker's Knee Injury

Message posted on : 2007-01-12 - 00:12:00

In last Saturday's game at Texas A&M, Kansas State freshman Bill Walker tore the anterior cruciate ligament in his left knee. The injury ends the 06-07 season for the dynamic 6-6 Walker, whose play had drawn comparisons to a young Vince Carter and who ESPN's Chad Ford ranked as the third-best NBA Draft prospect among college freshmen (right after Kevin Durant and Greg Oden).

An ACL tear is obviously a serious injury, particularly for a player whose game is based largely on explosiveness and quickness (Celtics fans have been dealing with the same worries for the last two days after Tony Allen's terrible tear of the ACL, medial meniscus, and lateral meniscus). Perhaps the best news for Walker is that he suffered a tear of his ACL in his right knee back in 2003, and was able to fully recover. But you never know what will happen after such a serious knee injury. Just ask Randy Livingston, who, back in 1993, tore his ACL before his first college practice and was never the same.

So what's the legal angle with Walker's injury? He was considering a challenge to the new NBA age limit (and thanks to Michael Ryan of Bearcat News for the link). The age limit, which is contained in Article X:I(b)(i) of the NBA-NBPA collective bargaining agreement, requires that an amateur American player be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season has passed from when he graduated from high school, or when he would have graduated from high school, and the NBA draft. The NBA has construed it to preclude Walker's eligibility in the 2007 NBA Draft, claiming that his high school class should be considered the class of 2008 (even though he has been a freshman at Kansas State this season). We discussed the specifics of this issue back last July, but basically the NBA contends that Walker--who prior to this injury projected as a first round pick in the 2007 NBA Draft, if eligible--did not complete his senior year on time last spring, while Walker has argued, correctly so in my opinion, that he would have graduated last spring, but for a transcript error made by academic administrators. Walker's argument was endorsed by the Ohio High School Athletic Association, whose expertise in his case was to assess Walker's credits and which obviously has no stake in whether Walker could turn pro.

I should stress that had Walker challenged the new rule, he would have challenged its application rather than its underlying legal merits. Granted, any time an application of a rule is challenged, its underlying legal merits can be called into question, but Walker's lawsuit probably would have been limited in scope. And in truth, it likely would have been redressed in mediation before any litigation commenced. Had Walker and counsel met with NBA officials, I suspect those officials would have ultimately acquiesced, since allowing Walker would not have in any way jeopardized the rule. It would have also, in my opinion, been the correct and fair move to make.

But Walker no longer seems poised to commence any lawsuit or negotiation. Such a serious injury alters his draft stock, at least for this year. He will probably spend the next eight months rehabbing his knee rather than dealing with a controversial lawsuit that may no longer be in his best interests.

We might also consider the social policy implications of Walker's plight. Here we have a 19-year-old man who has suffered a terrible injury that threatens what appears to be his most marketable and cherished skill: the ability to excel at basketball. Walker has presumably invested much of his life in honing that skill, probably at the expense of honing other talents and perhaps those skills that are scholastically-related. I have never met him, but like Arthur Agee and William Gates in the extraordinary documentary Hoop Dreams (1994), he has probably been "encouraged" by coaches and sneaker representatives and other self-interested (selfish?) actors to focus on basketball. The advice seemed to be working. But what happens if his basketball career is now over, or if he is no longer the next Vince Carter? Will those same people care about him? If not, who will?

That point lends itself to another point that is closer to the law: consider the human costs of an age-eligibility rule. If Walker had suffered the exact same injury while playing for an NBA team, he would likely have millions of guaranteed dollars coming his way under an existing contract. I know, money doesn't make one whole (despite what we tell our students in torts), but it certainly makes one better off--especially when one comes from financially-disadvantaged circumstances, as do many premier basketball players, and especially when one has invested so much of his learning time to a sport rather than to scholastics or other endeavors. I talked about these points in my posts Not Being Randy Livingston: The Jonathan Bender Story and The Power of Situation: Joakim Noah's Decision to Stay at Florida.

What will be Walker's life story if, because of this injury, he never earns a dime playing basketball? Should we, as sports fans, bear responsibility in making sure that he does alright, or is it okay that we will simply forget about him?

Posted By : Michael McCann

Ticketmaster Helps Chargers Secure Home Field Over Patriots (or at least Patriots' Fans)

Message posted on : 2007-01-10 - 14:33:00

I will be interviewed on tonight's CNBC's On the Money Program regarding the legality of restrictions imposed by the San Diego Chargers in their sale of tickets to New England Patriots fans for this Sunday's matchup between the two teams. Darren Rovell, who runs CNBC's Sports Biz, will be the interviewer. The show will air from 7 to 8 p.m. eastern standard time. I hope you get the chance to watch.

UPDATE 1/13/2007: CNBC has made the segment available at this link (there is a short advertisement, and then the 2 minute and 51 second video appears).

Posted By : Michael McCann

What is the Duty Owed by Sports Writers Voting for the Hall of Fame?

Message posted on : 2007-01-10 - 09:35:00

Excellent article by Tim Cowlishaw in yesterday's edition of the Dallas Morning News (Steroids Issue Still a Judgment Call). Cowlishaw points out that, less than 24 hours before the veteran baseball writers who vote for the Hall of Fame had buried Mark McGwire's first-ballot chances based on a suspicion of steroid use, the football writers and broadcasters who vote for the Associated Press All-Pro team embraced steroid use by putting San Diego Chargers linebacker Shawne Merriman (who actually missed 1/4 of the season because he tested positive) on the first team. While Cowlishaw candidly acknowledges that he wouldn't have voted for McGwire this year if he had had a vote, he also alluded to the problems associated with writers making voting decisions based upon speculation and conjecture:

"But there is a problem with writers taking the moral police role in making these determinations, because we have learned now that Major League Baseball is testing, that steroid users don't always look like steroid users. Even though he also appeared before Congress, Rafael Palmeiro was not on the list of highly suspected steroids users. He's not a big-muscle-type guy. Then, after wagging his finger defiantly, Palmeiro goes out and tests positive. And so have a lot of relief pitchers who also don't fit the Popeye mold... They guess a decisive "guilty" on McGwire based on the size of his forearms. But they say an emphatic "no chance" when confronted with Cal Ripken Jr.'s amazing consecutive-games streak of 2,632. Look, I am not suggesting anything about Ripken. Just pointing out that it is somehow completely off limits to guess how a player managed to push himself to play every day for more than 14 years, while it's a duty to guess how a player added 30 to 40 pounds of muscle during the course of a career."

Cowlishaw is absolutely right that it is all speculation. The fans and the media are definitely permitted to speculate and formulate opinions about whether McGwire took steroids, whether they affected his performance, and whether there should be an "asterisk in the record books." But should writers voting on post season awards, including the Hall of Fame, be held to a different or higher standard, or at a minimum, a standard that is clearly defined? [Maybe it is clearly defined, and I'm just not aware of it.] I mean we're talking about the Hall of Fame, not some all-time top ten best players list put together by some columnist or blogger. Hall of Fame voters, in essence, seem to be permitted to make their own subjective determinations that McGwire did in fact take something. And even further, that the something they think he took is probably on the banned substance list that was subsequently developed and tested for after McGwire played.

What do the voters want here? If McGwire came out today and said that he never took an illegal steroid or a substance that is currently on the banned substance list and tested for, would they be satisfied? Probably not. Is it that they are upset that McGwire isn't talking about it, and they want him to speak out to the public about the dangers of steroid use? I guess we'll never really know for sure, and the answer may be different depending upon which voter you ask. While there is an element of subjectiveness in determining who gets in the Hall anyways based upon performance, at least we can say that those determinations are based upon an analysis of objective-based performance statistics.

The purpose of this post is to inquire about the parameters or standards for determining who gets in the Hall and who doesn't, not to engage in the steroid debate. So what is the duty of a sports writer in voting for the Hall of Fame? I don't mean a duty in a strictly legal sense, but should it be objectively defined? Or is it sufficient for the writers to be permitted to take on a broad "moral police role" as Cowlishaw alluded to. If so, what are the perameters of that role? Presumably writers are permitted to make decisions that even go beyond mere speculation over steroid use, for example the use of illegal narcotics (and speculation of such use) or other acts of perceived misconduct on and off the field, unless that role is more narrowly defined of course. And if the standard is that broad, then why not just let the fans vote, similar to the way the fans vote for the all-star games? Because fans are just as qualified as the writers--maybe even more qualified--to make these types of decisions.

Posted By : Rick Karcher

Title IX and Practice Squads

Message posted on : 2007-01-09 - 22:57:00

Over at the University of Chicago Law School Faculty Blog, Saul Levmore has this interesting post about proposals being made in several conferences and before the NCAA to ban the practice of women's basketball teams practicing against teams of male students. Opponents of the practice are suggesting that the practice violates Title IX, although Dean Levmore argues (correctly, I think) that it is hard to see what the Title IX problem is.
Posted By : Howard Wasserman

New Sports Law Scholarship

Message posted on : 2007-01-09 - 15:37:00

New this week:
Roger I. Abrams, Game-fixing in the National Game, 1 FLORIDA ENTERTAINMENT LAW REVIEW 1 (2006)

Zachary C. Bolitho, Note, When fantasy meets the courtroom: an examination of the intellectual property issues surrounding the burgeoning fantasy sports industry, 67 OHIO STATE LAW JOURNAL 911 (2006)

Posted By : Geoffrey Rapp

Illinois Appellate Court Clarifies "Contact Sports" Exception in Tort Law

Message posted on : 2007-01-08 - 13:33:00

In Karas v. Strevell, 2006 WL 34849138 (Ill.App. Dec. 29, 2006), an Illinois appellate court has offered an extensive (53-page) discussion of the state and scope of the so-called "contact sports" exception in tort law, which provides that co-participants in "contact sports" have no cause of action for injuries sustained due to the negligence of other participants (although "wanton and willful" or reckless misconduct remain actionable). This decision is of particular interest in that it interprets and expands upon Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975), a leading case on the tort liability of sports participants that has found its way into a number of sports law casebooks. I have written on the subject of co-participant liability in posts such as this one; Greg also covered the issue in posts like this one.

In the new case, Karas, the court confronted an action filed on behalf of a youth hockey player against two other players and the hosting league, among other defendants. The plaintiff was checked from behind in violation of a league rule by two opponents; at the time of the contact, plaintiff was near the boards and partially bent down; the collision caused plaintiff's head to strike the boards and resulted in serious injuries. Notably, on the back of the plaintiff's jersey appeared the word, "STOP," to reinforce the league's no-checking rule.

Against the players, plaintiff claimed recklessness and wanton and willful misconduct
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. . . .

[T]he factual allegations above meet the requirements for pleading a cause of action based on willful and wanton condcut. Plaintiff alleged not only that [defendant players] broke the rules of hockey, but that they broke a rule with such special emphasis that players' jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding [defendants'] actions--they allegedly checked [plaintiff] when he was defenseless and in a position of acute vulnerability--that evince a conscious disregard for his safety.
The court further noted that full development of a factual record -- particularly with respect to the location of the puck at the time the defendants struck the plaintiff -- might justify a conclusion that defendants did not act in a wanton and willful manner.

There's a lot more good stuff in the opinion about co-participant liability on which I don't have room to comment here.

Against the league, plaintiff claimed negligence, arguing that the hockey league had failed to enforce aggressively its no-checking rule. The league argued that the contact sports exception should apply to its liability as well, and on that basis the trial court had dismissed those claims. On appeal, plaintiff argued that the league and other organizational defendants, not technically "participants" in the hockey game, owed him a duty of ordinary care actionable in negligence.

After wading through the morass of whether the contact sports exception is a "no duty" rule or an "assumption of risk" rule, and after noting the interplay between the two, the court opined that a participant in a sporting event is barred from suing a non-participant for mere negligence:

[T]he consent granted by each participant is not specific to the similarly situated participants, but instead to the risks associated with the game, regardless of whether the risks stem from co-participants or some other source. . . .

[B]ased on assumption of the risk principles, it stands to reason that the contact sports exception should be extended to protect the organizers and coaches from liability for negligence leading to player conduct that cannot otherwise form a basis for liability due to the contact sports exception.
I find the court's reasoning on this point rather odd. The court seems to complicate tort law considerations by talking about organizational "negligence leading to injuries caused by other parties' negligence," versus "negligence leading to injuries caused by others parties' recklessness." The court would bar a plaintiff's suit under the former theory, but allow it under the latter. In effect, the court is saying that a non-participant owes a general duty to avoid negligence, but not negligence leading to injuries caused by other-party negligence.

Huh?

Negligence of 3rd parties can be addressed using ordinary tort principles of forseeability of intervening causes. Indeed, the court's approach seems to upend the normal concept of "foreseeability." The court allows actions against a league that negligently fails to enforce its rules where the failure to enforce those rules is a "but for" cause of a player's recklessly injuring another player. At the same time, the court would disallow a case where a league negligently fails to enforce its rules where that failure is the "but for" cause of a player's negligently injuring another player. What is odd about this is that, ordinarily, an intervening act is less foreseeable -- and therefore more likely to sever the chain of proximate cause -- when it is reckless or intentional, rather than simply negligent. The court's position makes it easier to recover for the less foreseeable intervention.

Some of this morass could be avoided if plaintiffs simply allege recklessness by the non-participant dfendants. Indeed, this plaintiff did so, but as the court justifiably concludes, the plaintiff's allegations with respect to the league did not amount to wanton or willful misconduct.

Posted By : Geoffrey Rapp

New Sports Law Scholarship

Message posted on : 2007-01-05 - 13:32:00

New these past two (wonderfully restful) weeks:
M. Bradford Preston, Note, Sheldon Kennedy and a Canadian tragedy revisited: a comparative look at U.S. and Canadian jurisprudence on youth sports organizations' civil liability for child sexual exploitation, 39 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1333 (2006)

Adam L. Sheps, Note, Swinging for the fences: the fallacy in assigning ownership to sports statistics and its effect on fantasy sports, 38 CONNECTICUT LAW REVIEW 1113 (2006)

Posted By : Geoffrey Rapp

If you build it, they will come...

Message posted on : 2007-01-05 - 10:44:00

Mario Lemieux and Pittsburgh Penguins executives made the rounds yesterday (1/4), touring and meeting with representatives from the Sprint Center, a state-of-the-art arena currently under construction in Kansas City, Missouri, followed by an evening meeting with Pennsylvania Governor Ed Rendell. Kansas City, which has long aspired to bring a major professional hockey or basketball franchise back to the city (the New Jersey Devils NHL franchise left in 1976 first for Colorado, then N.J.; the NBA's Kings moved to Sacramento in 1985), took the somewhat risky strategy in the summer of 2005 of beginning construction on an arena without having any major tenants. This "if you build it, they will come" strategy, while financially risky (imagine the potential losses likely to occur if the building goes a number of years without a major tenant), has been successful in the past. The City of St. Louis built what we now know as the Edward Jones Dome in the early 1990's without a major tenant in an effort to woo an NFL team to the city to replace the former St. Louis Cardinals football team. The Rams moved there in 1995 just as the stadium was nearly completion. Tropicana Field, then the Florida Suncoast Dome, was built in 1986 in an effort to lure an MLB team to the Tampa-St. Petersburg area. After high-profile recruitments of the White Sox, Mariners, and Giants, MLB eventually awarded an expansion francise to the stadium in 1995, nearly ten years after construction.

The Penguins situation appears to be a classic bidding war for the right to house the team with the Sprint Center and Kansas City on one side and Pittsburgh/Allegheny County/Pennsylvania on the other. Mario Lemieux has made it clear that he would prefer to keep the team in Pittsburgh, where attendance has been strong, if a new arena can be built, a position the NHL supports. The Sprint Center reportedly offered free rent and a free ownership stake in the arena during yesterday's meetings. It will be interesting to see in what direction these arena negotiations head over the next few weeks.

Posted By : Chad McEvoy

Coaching Movement and Buyout Clauses

Message posted on : 2007-01-03 - 11:45:00

As I periodically checked my web browser this morning at work to keep an eye on the reality show-like drama involving Nick Saban, the Miami Dolphins, and the University of Alabama, I was struck by the importance of well-written buyout clauses in coaches' contracts. It would seem to me that if one aspires to be a coaches' agent in intercollegiate or professional sports, they should take an extra few semesters worth of contract law while in law school, with much of that work focused exclusively on writing solid buyout clauses. While I'm of course being a bit facetious here, it is somewhat mind-boggling how few coaches' contracts actually run their full course and how many are terminated by either the quick-triggered administrator, eager to replace a coach at the first sign of trouble (see Maturi, Joel, athletic director at the University of Minnesota, who last week fired Glen Mason, the school's football coach, who had won at least six games in seven of the past eight seasons, a feat thought by many to be nearly impossible at a school that had only won 6+ games in six of the previous 21 seasons), or the coach with the wandering eye, always looking to leave for greener pastures, particularly when green is the color on small, rectangular pieces of currency (see Saban, Nick).

While most of these buyout clauses seem to work relatively seemlessly, we do find the occassional snafu, such as the Jim O'Brien/Ohio State basketball case from recent memory. To all of you aspiring coaches' agents out there, please pay attention extra during lecture in contract law class and spend a little extra time perfecting those buyout clauses.

Posted By : Chad McEvoy

Popularity from Sports to Politics and Back

Message posted on : 2006-12-31 - 07:17:00

This Bush-for-Baseball-Commissioner thing is taking me in a bunch of different directions. Not bad for a random thought hatched over Christmas-Day Chinese food with my family.

One commenter questions my suggestion that Bush's unpopularity would not necessarily bother people or cause them to stop watching baseball. He raises a really interesting question about contextual popularity or unpopularity of public figures that is beyond the scope of this forum. But sports links are everywhere, so I thought I would respond:

George W. Bush, the President, is unpopular. Many, many people do not like his policies, his politics, or the manner in which he conducts himself in the Office of the President of the United States. But that does not necessarily translate into a general dislike of George W. Bush, the Person (whom I do not know). It will translate with some people. Many will respond negatively to anything Bush does, especially those who believe he is unintelligent. Many also see Bush not only as following bad policies, but as following illegal (and thus impeachable) policies. The commenter captured the latter point when he used the analogy of the CEO of Enron not becoming beloved as President. The CEO of Enron was unpopular not because he did a bad job as CEO (lots of CEOs do a bad job), but because he did illegal things.

Note, however, that those objections to Bush as commissioner are based on his ability, as opposed to his popularity--the assumption that because he is a bad president, he would be a bad commissioner. Maybe so. But if we focus solely on popularity, I do not know whether or not I would dislike or disagree with Bush's ideas and views in a different context, such as running baseball. Maybe we share a dislike for the wild card, inter-league play, the designated hitter, and the obscenely small strike zone (to cite a few examples). And maybe I would appreciate his frat-boy-charming personality wielded towards ends I like.

The converse of this phenomenon--athletic popularity translating into political popularity--is at the heart of the growing trend of former professional athletes running for public office. The most recent examples were Lynn Swann's unsuccessful run for governor of Pennsylvania and Heath Shuler's successful run for U.S. House of Representatives from North Carolina, as well as Charles Barkley's continued promises/threats to run for governor of Alabama in 2010. All are counting on name recognition, reputation, and popularity built in one context carrying into a different context. Shuler, of course, had to overcome the fact that he was not a very good NFL quarterback.

In any event, we hope the voters will consider the candidate on the merits (on his ability to perform in office) before supporting him and not automatically assume that popularity and likability on the playing field means likability in public office. So why should the reverse not be true--unpopularity (again, distinct from competence) in political office does not automatically mean unpopularity in a sports-related job?

Posted By : Howard Wasserman

More on Bush as Commisssioner: Someone is Reading

Message posted on : 2006-12-30 - 09:36:00

Jonathan Weiler at Sports Media Review responds to my earlier post about George W. Bush being the next Commissioner of Major League Baseball.

Weiler suggests this will not happen (or at least should not happen) for three reasons:

1) Baseball commissioner no longer can be a celebrity/figurehead position. The big-time-business nature of modern professional sport requires a saavy, hands-on, somewhat visionary, detail-oriented, technocrat/manager, all things we can agree (whatever one's politics) Bush is not.
2) Bush is wildly unpopular and divisive, particularly in the Blue States, so it might be a bad PR move for baseball.
3) Bush was not really a "baseball guy" when he was involved with the Rangers and was not involved in day-to-day baseball operations, so he does not even bring that to the table. Mostly, he was the public face of the team, whose name (Papa was POTUS at the time) carried weight.

All good points that weigh against MLB making such a move. And, as Weiler notes, I was half joking in the original post. But not entirely. So let me respond to each as a way of defending the idea:

1) MLB long functioned in a decentralized (federalist, if you will) system in which the separate league commissioners did much of the day-to-day management and the commissioner sat atop the pyramid as the public face. That no longer is true, a result of one of Selig's innovations to centralize operations and make it more akin to the NFL and NBA set-up. So the role of commissioner is, indeed, different, requiring more of a hands-on manager. But I could envision MLB (although perhaps not the other major professional sports) still going the celebrity/figurehead route. I think it has to do with baseball still being the highest-profile sport, even if the NBA is more popular.

Plus, we have something of that in place now. Selig is the public face of the game (for better or worse). But he delegates a lot of responsibility, and limelight, to his underlings, notably Robert DuPuy and (when he was in the job pre-2005) Sandy Alderson. Certainly we see and hear more of them than of David Stern's deputies (with the exception of punishment chief Stu Jackson, but that is a different problem). Is it conceivable to have Bush as commissioner and an experienced and high-profile baseball exec (say, Theo Epstein?) as President/COO or Chief of Baseball Operations?

2) Yes, Bush is unpopular. But presidents have a way of becoming more popular once they leave office (see, e.g., Nixon, Richard). I would not envision a significant number of people finding Bush so distasteful that they will boycott baseball if he is commissioner. Most fans would even say it is bad form to boo or heckle Bush at a game. In other words, I am not sure his political unpopularity would carry-over into this new role.

3) Yes, Bush is not a hands-on baseball guy. But he is a good politician, something that would help MLB in its dealings with Congress (steroid eruptions, anti-trust rumblings) or with state and local governments (ballpark deals, etc.). As I said in # 1, MLB might believe that such political skill at the head, with a skilled baseball person at the right hand, is a good way to go.

Again, I am or endorsing it. Just suggesting the possibility.

Posted By : Howard Wasserman

Ninth Circuit Ruling Isn't Just About Steroids in Baseball

Message posted on : 2006-12-28 - 17:20:00

The Ninth Circuit's ruling, as discussed by Howard Wasserman earlier today, has broad implications regarding the ability of the government to seize evidence in all criminal investigations that go beyond just a few baseball players alleged to have taken steroids. While the opinion is 115 pages long, here are some of the pertinent facts taken directly from the opinion:
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data� (designated “computer personnel�) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel� would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.

2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled by its original compiler as the “Tracey� directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst—here the advice of Computer Investigative Specialist Agent Joseph Abboud—agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.

3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

Violations of due process and Fourth Amendment privacy rights get me fired up fairly easily, and this case deals with the latter. Simply, by allowing investigators to use the initial warrant as a basis for gathering gobbs of incriminating information with respect to non-targeted individuals, the investigators, in effect, were able to use a generalized search warrant to obtain evidence without probable cause. The court used the difficulty of retrieving and separating electronic data as an excuse to allow federal investigators full discretion to not only retrieve private and confidential information about thousands of individuals that are not even the subject of the warrant and for which there is no probable cause, but to also determine when there is "intermingling" such that an on-site search would be impracticable. This puts way too much discretion in the hands of federal investigators. Even further, the court didn't place any limitations on the government's use of incriminating evidence obtained with respect to non-targeted individuals.

This decision can't be the right result. What happened to the requirement of "particularized" search warrants? This decision has nothing to do with whether baseball should have a stricter steroid policy or no policy, nor whether all steroid users in baseball should be ousted. This ruling affects every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers (hospital records, employment records, etc.). Isn't the more logical and reasonable approach to have a magistrate review and segregate the intermingled electronic data BEFORE allowing the government to seize and review it? --especially in circumstances when the evidence is not in jeopardy of being destroyed. That is the only way to ensure a proper balance between the government's criminal investigatory efforts and the privacy rights of non-targeted individuals.

Posted By : Rick Karcher

Federal Government May Review MLB Player Drug Tests

Message posted on : 2006-12-28 - 11:19:00

In a lengthy 2-1 opinion in United States v. Comprehensive Drug Testing, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal government could keep and review (under direction and supervision of a Magistrate Judge) records of drug- tests from more than one hundred Major League Baseball players. As part of its BALCO investigation, the government issued grand-jury subpoenas and obtained search warrants for computer files and paper information held by CDT and another company, Quest Diagnostics; both companies had performed drug tests on MLB players in 2003 pursuant to a contract with MLB. The government was looking for (and actually entitled to seize) only information on eleven specific players.

But in the course of the search, agents came across "intermingled" files and documents containing information on many other players who were not believed to have any connection to BALCO, in addition to the eleven targets. Under the majority's holding, the government may be able to retain and use initially non-seizable evidence that was initially mixed-in with seizable evidence. That determination will be left to the Magistrate.

For MLB's purposes, the impact of the ruling is not clear. News outlets are talking about the effect this could have on the investigation into perjury before the grand jury by Barry Bonds, apparently on the assumption that the records may show that Bonds did use steroids prior to giving his testimony. The absence of such evidence to this point may explain why the perjury investigation has not gone anywhere. Prosecutors generally (and properly) are reluctant to pursue perjury charges in a he said/he said situation; non-testimonial evidence that Bonds took performance-enhancing drugs might strengthen the case.

The records also could show just how pervasive steroid use is in baseball. The testing done in 2003 was anonymous and not under threat of penalty and MLB has downplayed what those tests showed.

Finally, since the BALCO grand jury has been famously leaky, there is a good chance that the names of some of these hundred players are going to get out to the public at some point.

Posted By : Howard Wasserman

Sports Prediction for the New Year

Message posted on : 2006-12-27 - 09:51:00

A random prediction for the new year: George W. Bush will be the next Commissioner of Major League Baseball.

Current Commissioner Bud Selig announced earlier this month that he will retire when his contract expires at the end of 2009 (although apparently, back in in 2003 he said the same thing about retiring in 2006, so stay tuned). Bush will be out of a job at 12:01 p.m. on January 20, 2009. And he will need something to do, since one cannot imagine him monitoring foreign elections and fighting world health battles.

Baseball commissioner always has been a job that has attracted people from politics and public service. Commissioner A.B. "Happy" Chandler served as Kentucky's Governor and U.S. Senator both before and after his term in baseball. Chief Justice Fred Vinson considered resigning from the Supreme Court to take the job after Chandler's term ended in 1951. Names such as Mario Cuomo and George Mitchell have surfaced in the past as potential candidates. And, of course, Bush used to own the Texas Rangers, so he combines a political background with baseball-insider status, which would make him very appealing to the owners.

And there is the fact that this may be the job Bush wanted all along. Recall that Commissioner Fay Vincent was forced out of the job in 1992 by an owners' vote of no confidence and replaced, on an "interim" basis, by Selig, then owner of the Milwaukee Brewers. This move was the prelude to the owners' hard-line stance in the 1994 players' strike that forced the cancellation of the 1994 World Series and a one-month delay in the start of the 1995 season. And a search for a permanent commissioner went along. According to Vincent's 2002 book, The Last Commissioner, Bush let both Selig and Vincent (who was a friend of Papa and Barbara Bush) of his interest in the job. Selig purportedly told Bush that he was "his man but that it will take some time to work out." At the same time, Bush was considering running for governor of Texas. With the clock ticking (and Vincent suspecting, ultimately not incorrectly, that Selig wanted the job for himself), Bush gave up on the commissioner's job and ran for public office. He won the Texas governorship in 1994 and the rest, as they say, is history.

It would be an interesting turn for Bush to get his dream job--17 years, and many world events, later.

Posted By : Howard Wasserman

Titans Sued for Mascot's Behavior

Message posted on : 2006-12-20 - 08:15:00

This story isn't as interesting as Tara Conner, but last Friday, ex-Saints fourth string quarterback Adrian McPherson filed a lawsuit against the Tennessee Titans because their mascot hit him with a golf cart while he was warming up on the sidelines before the second half of an August exhibition game. The short 4-page complaint (actually three because the fourth page contains the signature block), which can be accessed at The Smoking Gun, does not state what his injury was, but does seek $5 million in compensatory damages and $15 million in punitive damages. It's unusual to make a request for relief for that amount of money without even describing the injury. But according to an AP release, McPherson incurred "a deep bruise" in his right knee, and the Saints cut him three weeks after the incident. The complaint, however, spins it a little differently stating that McPherson was forced to miss the remainder of the pre-season, and was ultimately placed on injured reserve which meant he was forced to miss the entire NFL season.

Assuming the person performing as the mascot is an employee of the Titans and not an independent contractor, the Titans would be vicariously liable for personal injury proximately caused by his unreasonable conduct. Driving a golf cart into an opposing team's player warming up on the sidelines is most likely negligent. But McPherson has the burden of proving his damages. What's a knee bruise worth to a fourth string quarterback? Definitely not $5M. McPherson alleges that the injury forced him to miss the entire NFL season. However, the Titans will argue that the reason he missed the season is that he was cut by the Saints as the fourth string QB and would have been cut anyways, not because of the knee bruise. The Titans can also point to the fact that he now plays in the Arena Football League, and no other NFL team was interested after he was cut.

What is unfortunate for the Titans, however, is that damages are typically a question of fact for a jury to decide, especially in this situation because it involves determining McPherson's worth as a player as well as the issue of whether he would have made the Saints' roster if he had not been injured. So unless this mascot is an independent contractor, the court would probably not dismiss it as a matter of law on the liability issue.

My prediction is that the Titans will sit on this case for awhile. If McPherson continues playing in the AFL, it tends to establish that the injury he incurred was not that severe. And if he doesn't ultimately get picked up by an NFL team, it tends to show that he would have been cut by the Saints anyways.

Posted By : Rick Karcher

John Rocker and Free Speech (Again)

Message posted on : 2006-12-15 - 05:50:00

John Rocker is back. Rocker, remember, is the former reliever who went on an anti-homosexual, anti-immigrant, anti-grunge, anti-unwed-mother, anti-New York, anti-7-Train diatribe in a 1999 Sports Illustrated article. This got him a one-year (later reduced by an arbitrator) suspension from Major League Baseball, made him a pariah among fans, and was the first step in a strangely precipitous decline in his pitching ability that had him out of baseball a few years later. Rocker was the subject of a lengthy interview on Deadspin.com, apparently triggered by the correspondent's desire to learn what Rocker thought of the Michael Richards controversy.

The interview shows that Rocker has not changed his mind about many things. He is writing a book containing "more conservative Republican rantings." Muslims are too sensitive and easily offended. He is promoting a campaign called "Speak English." The SI story did not present the correct version of his comments or events and took things out of context. Michael Richards will bounce back and work again, although Rocker was not given such leeway even after he apologized. His girlfriend is Black and two or three of his best friends are Dominican or Puerto Rican. And Jeff Pearlman, the author of the article, is a "liberal Jew from New York" with an agenda. The last point prompted this response from Pearlman on espn.com's Page 2.

One problem with trying to develop a framework to discuss athletes' speech is that for every Muhammad Ali, John Carlos, Tommie Smith, Toni Smith (the college basketball player who in 2003 turned her back to the flag during the national anthem as a war protest), or Carlos Delgado, there is a Rocker. The former involve (at least viewed with a modern lens) involves unpopular, but at least arguable political stands that the majority generally recognizes as within the realm of acceptable debate and dissent. The latter made comments that, while political in the broad sense and unquestionably constitutionally protected, run afoul of what society considers acceptable discourse. And MLB and its teams, as entities with their own expressive interests, may want to make clear their objection to the former but not the latter.

But both are within the bounds of constitutional protection and we do not draw legal lines between them in the pure First Amendment context of government action--neither Ali nor Rocker could be subject to legal penalty for his respective expression. So, if we are discussing a framework (albeit not a First Amendment one, obviously) for what professional leagues should or should not do in response to athletes' off-field speech, do we still have to avoid such lines? It follows that, if we believe (as I think most people do, now) MLB should not punish Carlos Delgado for his war protest and Muhammad Ali should not be stripped of his title for refusing military induction on relio/political grounds, it becomes more difficult to justify Rocker's suspension for his comments.

Posted By : Howard Wasserman

Leaking Information: National Security and Sports Security

Message posted on : 2006-12-14 - 23:23:00

Bobby Chesney, Heidi Kitrosser, Jalk Balkin, and Marty Lederman all blogged recently about a case brewing in the United States District Court for the Southern District of New York involving a federal subpoena issued to the ACLU seeking confiscation of "any and all copies" of secret government documents leaked to the organization. The ACLU this week moved to quash the subpoena. The crux of its argument is that a subpoena to seize all copies of these documents is the functional equivalent of an injunction against publication of the contents of the documents, which generally is prohibited by the First Amendment and the landmark Pentagon Papers case. This is only the latest of many controversies involving federal-government efforts to punish leaks by pursuing and seeking to punish, in various ways, the recipients (often the media) of leaked information.

What's it got to do with baseball (or any other sport for that matter)?

One recent example of such pursuit involves San Francisco Chronicle reporters Mark Fainaru-Wada (a former journalism-school classmate of mine, although I did not know him) and Lance Williams, authors of the 2006 book Game of Shadows. The book reveals, in detail, Barry Bonds' alleged steroid use, based in part on leaked testimony and evidence from the grand jury investigation into BALCO. The book put teeth into the widespread belief that Bonds used steroids to produce his dramatic late-career evolution into the greatest hitter who ever lived (sorry, Teddy Ballgame); may have committed perjury before the grand jury; and may have evaded federal tax laws by not disclosing certain income. Fainaru-Wada and Williams have been sentenced to federal prison for contempt for refusing to reveal the source of the leaked evidence (although they remain free pending appeal).

What is interesting about the Fainaru-Wada/Williams case is the interplay among the myriad ways that the federal government could pursue leaks to the media and the publication of leaked information on one hand, and the First Amendment on the other. And, once again, a free-speech issue plays itself out in a controversy over our beloved sports. (Full Disclosure: I am supervising an FIU College of Law student writing a law review article on this interplay in the Fainaru-Wada/Williams case).

How can government punish a particular leak and, since law works through deterrence, stop leaks in the future? Consider several options and their constitutionality:

1) Enjoin publication of the leaked information. Not allowed under the First Amendment, unless the information to be published concerns specific troop locations and movements or similar information that could immediately threaten lives. Certainly not satisfied in Bonds' case, where the information concerns Bonds' allegedly unlawful/unethical activities.

2) Punish publication after the fact. As I discussed here, Bonds tried this when Game of Shadows was about to be punished. He sought an injunction that the authors and publisher be made to give up any profits on the book, arguing that, because it was based on leaked information, it constituted an unlawful or unfair business practice. The argument failed (properly) because of a key First Amendment principle that one cannot punish (by criminal, civil, or other liability) the publication of truthful information, lawfully obtained, on a matter of public concern. Since nothing prohibits the receipt of leaked grand jury testimony (as opposed to actually leaking it) and cheating in baseball is a matter of public concern, Fainaru-Wada and Williams were protected from such an injunction.

3) Convene a grand jury to investigate the leak, with an eye towards punishing the leaker; subpoena the reporters to testify and reveal the leaker's identity. If the reporter reveals the leaker, the government can prosecute the leaker--and the reporter can forget about ever getting a confidential source to talk again. If instead, as generally will happen, the reporter refuses to reveal the leaker's identity, jail the reporter for contempt of court for refusing to cooperate with the grand jury.

This is, of course, precisely what happened in this case. But the practical effect is the same: Reporters will be extremely reluctant in the future to receive and publish leaked confidential information, even on matters of as great public concern and import as cheating within The National pastime, for fear of having to reveal their sources. And potential sources will be similarly reluctant to leak, despite the public good to be served. The government gets, in a sense, what it wants: No more leaks or at least no more publication of leaks.

The ACLU case now reveals a fourth way. Suppose, in the Game of Shadows case, the government had learned of the leaks to the Chronicle reporters before the book came out, while they still were writing the book. And suppose the government issued to them a similar subpoena, demanding any and all copies of the testimony and evidence from the grand jury. The practical effect would be to freeze Game of Shadows (and any newspaper stories based on the material) in its tracks--just like an injunction against the book.

We shall see how the ACLU subpoena plays out. But, as always, there is a sports link.

Posted By : Howard Wasserman

Does Baseball Need to Broaden its "Other Activities Clause" to Include the Nintendo Wii?

Message posted on : 2006-12-14 - 14:47:00

Out of Detroit today comes the news that star pitcher Joel Zumaya's playoff sputter may have been due to excessively enthusiastic strumming of the Playstation video game "Guitar Hero." According to the Free Press
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.

Why? Club president and general manager Dave Dombrowski told WXYT-AM (1270) on Wednesday the team had concluded Zumaya's injury resulted from playing a video game, not from his powerful throwing motion.
Did Zumaya breach his contract? As readers are aware from our discussion of Ben Roethlisberger's misadventures in motorcycling, sports leagues frequently bar players from engaging in dangerous outside activities. Major League Baseball's provision, however, is more limited than the NFL's. It provides:
The Player agrees that he will not engage in professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.
In other words, baseball's clause only involves dangerous "other sport[s]", not other activities. While some Gamers might argue that video games are a sport (if poker is, why not?), that's probably not going to cut it in contract interpretation land.

Should baseball broaden the scope of its clause to include more general dangerous activities? Amidst the news of the rash of injuries caused by the Ninendo Wii, maybe the times call for a video game-injury clause. HT to Fark.

Posted By : Geoffrey Rapp

Lamar Hunt: A Sports Law Memorial

Message posted on : 2006-12-14 - 12:06:00

With the passing of Lamar Hunt, it seems appropriate to reflect upon some of the great cases and moments in sports law in which he was involved. Some of the more memorable published opinions:

American Football League v. National Football League, 205 F.Supp. 60 (D.Md. 1962), aff'd 323 F.2d 124 (3rd Cir. 1963)
Hunt was the owner of the AFL Dallas Texans; the AFL sued the NFL, claiming "monopolization, attempted monopolization and conspiracy to monopolize major league professional football." According to the court,
Among others who applied for NFL franchises in 1957 and 1958 w[as] Lamar Hunt, of Dallas, . . . [The NFL] suggested [Hunt] try to purchase the Chicago Cardinals and transfer that franchise. [Hunt] conducted unsuccessful negotiations with the [Chicago team's owners]. . . .Hunt, having been rebuffed in his efforts to purchase the Cardinals or obtain a new NFL franchise, began secretly to plan and organize a new league. He was then 27 years old, without experience in professional sports. He surveyed various cities and made tenative overtures to individuals who seemed likely prospects for becoming owners of franchises.
North American Soccer League v. National Football League, 465 F.Supp. 665 (S.D.N.Y. 1979)
The NASL sued the NFL over the NFL's "cross-ownership ban," which prohibited NFL owners from owning other sports franchises. According to the court,
An important element of stability for the NASL has been furnished by individuals or families who own member soccer clubs, and also own NFL football clubs. Perhaps the foremost among these "cross-owners" is Lamar Hunt of Dallas, Texas, a sporting world legend in his own time. Hunt, as owner of the Kansas City Chiefs football team, was in the early 1960's one of the founders of the American Football League, subsequently merged with the NFL. Hunt is now chairman and sole owner of the NFL Kansas City franchise. Hunt also is a part owner of the Chicago Bulls of the National Basketball Association, and the founder of the World Championship Tennis circuit. In 1967 Hunt purchased a Dallas soccer franchise which, in 1968, became the NASL's Dallas club, called the Dallas Tornado. [An] affidavit pays eloquent and, in my judgment convincing, tribute to the past and continuing importance to the struggling NASL of Hunt's presence and participation. . . .

[T]he NFL cross-ownership ban [i]s a source of harm to the NASL sufficiently grave and immediate to satisfy Second Circuit and Clayton Act Standards. Loss of the stabilizing Hunt . . . presence[] would be injurious in itself. . . .

The issues presented are interesting, complex and to a degree novel, such as the NASL's perception of wealthy, sportsminded individuals as components of a market for which rival leagues compete. One suspects that until now Mr. Hunt had thought of himself as a competitor, and not a commodity. . . .

Defendants have submitted an exchange of letters between Lamar Hunt and Pete Rozelle. . . . The correspondence concerns Mr. Hunt's willingness and efforts to comply with the NFL policy resolutions on cross-ownership. Mr. Hunt's letters reveal his concern with being forced into divestiture at a time when there was little or no market for NASL franchises. His perceptions as to investor reaction to the sale of a "Hunt" business are instructive:

"The soccer investment of myself and my children (for which I am obviously responsible) is a Very substantial one unfortunately, at this point more than I expected. Though the picture looks infinitely brighter for the sport, it is still a long way from reaching fruition for the investors and, in fact, at present there is virtually no market for a going club especially one owned by a 'Hunt.' (We have a historically bad record for selling any business for buyers seem to feel that anything we are selling must really be a 'dog.'"
North American Soccer League v. National Football League, 505 F.Supp. 659 (S.D.N.Y. 1980), rev'd 670 F.2d 1249 (2nd Cir. 1982)
The court wrote,
We must visualize individual sports team investors such as Lamar Hunt (NASL Dallas Tornado and NFL Kansas City Chiefs), . . . as the economic equivalents of cellophane, finishes and fabrics, shoes, or protective systems.

Posted By : Geoffrey Rapp

Did Daisuke Matsuzaka "Overrule" Scott Boras?

Message posted on : 2006-12-13 - 20:11:00

The Boston Red Sox have signed Daisuke Matsuzaka, the 26-year-old Japanese pitcher whose agent, Scott Boras, had adamantly contended was worth between $15 million and $20 million a year. During the 30-day-window in which the Sox could negotiate with Matsuzaka, Boras repeatedly threatened that Matsuzaka would return to Japan unless he signed a deal worth in excess of $100 million over six years.

But to the surprise of many baseball experts, Matsuzaka has agreed to a much smaller figure--try a half. The Red Sox will pay him $52 million over six years. Sure, that's still an insane amount of money, but it seems that Boras didn't get anywhere near what he told the world he would get.

So what happened?

It's not yet clear, but I have to imagine that Matsuzaka felt that he could not return to Japan. Not only did his team, the Seibu Lions, bid him an emotional farewell in front of 36,000 fans, but they are apparently in financial troubles and really need the $51 million the Sox agreed to pay if Matsuaka signed. So perhaps returning to Japan was not a realistic option for Matsuzaka if he was not willing to absorb a serious reputational cost. And it's possible that Boras was aware of this all-along, had hoped the Red Sox and the baseball world would think otherwise, but gradually realized that the Red Sox saw through the veil.

It's also possible that Matsuzaka simply overruled Boras. Boras is known for maximizing the financial value of his clients, but he's less well regarded for placing them in situations where they thrive. Earlier this week, ESPN's Buster Olney had this revealing comment about A-Rod's contract with the Rangers:
A few months after Alex Rodriguez signed his $252 million contract with the Texas Rangers, a deal negotiated by Boras, A-Rod was quoted in a New York newspaper as saying that he had really hoped to sign with the Mets. That seemed utterly bizarre, and a little silly: A-Rod had more negotiating leverage than any player in the history of baseball and yet he wound up playing someplace other than where he wanted to play. He could've played for the Mets – maybe not for $252 million, but maybe for $200 million. The difference between his playing for the Mets or not playing for the Mets was a whole lot of numbers on bank statements.
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."

Posted By : Michael McCann

Nepotism and the Andy Roddick Foundation?

Message posted on : 2006-12-13 - 16:20:00

American tennis star Andy Roddick, who is ranked 6th on the ATP tour, has a charitable foundation called the Andy Roddick Foundation. It focuses on raising money for programs designed to treat abused children (specifically in the Southeastern Florida and Austin Texas), as well as raising money for programs that combat childhood diseases, childhood illiteracy, and truancy. This past weekend, the Foundation raised $1.4 million at an event in Boca Raton Florida which included a poker tournament Friday at the Seminole Hard Rock Casino and a gala dinner and tennis tourney at Boca's Polo Club.

Sounds like the Foundation is successful at raising money, and lots of it.

But its management, which is comprised of volunteers and is directed by Roddick's mother, Blanche, has come under criticism in the Palm Beach Post for alleged incompetency. The basic contention is that Andy Roddick has unwittingly entrusted his charity to his mom and friends, and they don't know what they are doing:
According to former members, the organization is led by a sometimes-clueless, well-meaning volunteer board that usually yields to Roddick's my-way-or-the-highway mother, Blanche.

"They don't know what they're doing," said Brian Edwards, a Hollywood agent who resigned last year as director of celebrity development. "Blanche is extremely difficult. She and Andy are classless when it comes to dealing with celebrities. Believe me, I'm spreading the word." Edwards said incidents with celebrities over the years culminated in 2005 when two of his clients, whom he declined to name, waited six hours at a California airport for the plane to take them to Boca for the gala. He quit. "I suggested that we send them two gift baskets to apologize," Edwards said. "The total came to $733, but Andy has refused to pay. The bill still had not been paid two months ago. Real stars know. They aren't showing up because Andy and his mom have got delusions of grandeur when it comes to his star power, especially with their attitude."

The list of the personalities advertised for last weekend's event included former Dallas Cowboys star and dancing champ Emmitt Smith, former Detroit Lions star Barry Sanders, dirty celebutante Paris Hilton and New York Yankees slugger Alex Rodriguez. The names of actors Matt Damon and Russell Crowe were whispered in deep background. Who showed up: none of the above.

Those who paid up to $1,000 to play poker with big-deal celebs ended up with Paris' C-list sister, Nicky; the Dolphins' Jason Taylor; popster Mandy Moore; and tennis stars Venus and Serena Williams.

In fairness to the Foundation, the Palm Beach Post story, which perhaps revealingly does not have an author listed, is clearly one-sided against the Foundation and particularly against Blanche Roddick. I'm sure there are two sides to this story, and we only get quotes from people who have an ax to grind. Moreover, back in August, Fort Lauderdale Magazine named the Andy Roddick Foundation the best charity in South Florida. I don't know much about the award or the quality of competitors for it, but it suggests that the Foundation is doing something right.

But as a general issue, should charitable organizations of celebrities use family members to run them? I know nepotism is always a tricky subject, but perhaps it's something that celebrities want to avoid. After-all, Andy Roddick doesn't look particularly good when his foundation doesn't look good.

Then again, the following passage from Karyn R. Vanderwarren, Note: Financial Accountability in Charitable Organizations: Mandating an Audit Committee Function, 77 Chi.-Kent. L. Rev. 963, 966 (2002) might suggest otherwise, as it indicates that charitable organizations often lack the same degree of business/legal sophistication found in the for-profit world:
Charities often recruit nonprofit board members for their fundraising ability or prestige in the community rather than for their ability to lead the organization . . . [they] may lack corporate or legal expertise. Because charitable board members are generally not compensated and may lack expertise, they have little incentive to actively oversee the activities of the charitable organizations they serve.
So maybe the Andy Roddick Foundation's troubles--to extent they are accurately depicted by the media--have more to do with the nature of charitable organizations than anything else. Also, if the Foundation isn't very good, then couldn't contributors simply donate to other foundations--wouldn't the market for charitable contributions respond accordingly?

Posted By : Michael McCann

Lawyers in Demand at University Athletic Departments?

Message posted on : 2006-12-12 - 10:30:00

Last week at the Street & Smith's Intercollegiate Athletics Forum, when NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in the upcoming year, Brand said "Coaches' contracts," and added that "agents have the upper hand" now and schools may need outside help negotiating these deals. [Jodi Upton, USA Today, Colleges troubled by coaches' rising salaries] Brand told Upton in an interview: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

I've always thought that university athletic departments would be better served by having a full-time attorney in-house to deal with not only coaches contracts, but also with compliance audits, Title IX issues, NCAA rules interpretations, the NCAA enforcement process, and the development of institutional policies and procedures that have all sorts of legal implications (i.e. drug testing, use of Myspace/Facebook, etc.), to name just a few. As a result of the increase in coaches salaries, coaches contracts, correspondingly, have become much more complex with respect to termination rights, liquidated damages (how much one party owes the other upon a breach), and mitigation of damages (whether the compensation under a future contract should reduce the damages owed by the university to the coach).

I agree with Brand when he says that agents have the upper hand in negotiating coaches contracts. One of the great benefits to having an agent when negotiating an employment contract is that the prospective employee, whether it be a player or coach, can play the "good cop, bad cop" role. In other words, the coach or player can say, "I know, but my agent is making some of these demands and I'm not a business person, which is why I hired him." An attorney working on behalf of the university might be able to level the playing field in that respect.

Also, I've always thought that the coach has more bargaining leverage than the university in the contract negotiation process. First, the coach and the university agree "in principle" that he is going to be the new head coach, and it hits the press that same day. Then, after it hits the press, the university and the agent get together over the next few days and hammer out all of the important details of the contract. During these negotiations, it seems that the coach would have a much easier time walking away from the deal than the university would, which gives the coach more leverage. The university is placed in the inviable position of having to explain to students, alumni and boosters that they lost their "prized" coach because they couldn't agree to the terms of the contract. Maybe an in-house lawyer could aid the university in that process at the outset when the agreement is reached "in principle".

As more universities hire counsel, whether in-house or outside, it creates more opportunities for lawyers who want to work in the sports industry.

Posted By : Rick Karcher

David Stern Drops New Basketball Crusade

Message posted on : 2006-12-11 - 22:15:00

According to ESPN, NBA Commissioner David Stern will announce tomorrow that on January 1, 2007, the league will drop its new "microfiber balls" and bring back the traditional leather ball. The ball has drawn widespread rebuke from players as being uncomfortable and difficult to grasp, and Steve Nash and Jason Kidd even say that it cuts their hands. These complaints over both comfort and safety have reached legal significance, as the NBPA recently filed an unfair labor practice charge with the NLRB to have the ball replaced. That will no longer be necessary as Stern has essentially capitulated.

Skip Oliva over at the Voluntary Trade Blog has an insightful reaction to Stern's decision and the broader implications it may have on Stern and professional sports commissioners in general:
I consider this a “jump the shark� moment for Stern because the seemingly arbitrary decision to change the ball represented the zenith of Stern's bureaucratic (and some would say autocratic) management policies. The new ball's failure may signal at least a temporary end to Stern's increasing centralization of power.

I've long complained about the existence of professional sports commissioners, arguing that even the title “commissioner� confers a quasi-governmental authority on what is nominally a business executive's position. One problem is that commissioners have no equity stake in the organization that they are nominally CEO of—Baseball Commissioner Bud Selig being a quasi-exception, given that he owned the Milwaukee Brewers while serving as “acting commissioner�—and absent this equity, commissioners trend towards bureaucratic management. (See Ludwig Von Mises's classic work Bureaucracy for a detailed explanation of bureaucratic management.)

Stern is Exhibit A for bureaucratic management. His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005. Another is the arbitrary 19-year-old age requirement designed to keep high school graduates from playing immediately in the NBA. And then there's the classic example of Stern silencing the NBA's owners—his own bosses—who dare to criticize the league's management or officiating in public. As I noted in an earlier post, if a CEO of a publicly-traded company tried to silence his critics, all hell (and the SEC) would break loose.

See also
A Revolution Against David Stern and Creeping Orwellianism? (11/21/2006)
NBA Player Autonomy: How Should We Define It? (11/28/2006)
Update on David Stern and NBA Player Autonomy (11/29/2006)

Posted By : Michael McCann

New Sports Law Scholarship

Message posted on : 2006-12-11 - 11:34:00

New this week:
Suzanne Wilhelm, “Is someone riding around a golf course from shot to shot really a golfer?� The Supreme Court determines the essence of the game of golf--and what the decision could mean for learning disabled students in higher education, 32 JOURNAL OF COLLEGE AND UNIVERSITY LAW 579 (2006)

Posted By : Geoffrey Rapp

Scott Boras and the Lack of Good Faith in Matsuzaka-Red Sox Negotiations?

Message posted on : 2006-12-10 - 12:51:00

Last month, Rick blogged on the posting system that enabled the Red Sox to obtain the right to exclusively negotiate with Japanese star pitcher Daisuke Matsuzaka. The Red Sox paid the Seibu Lions $51 million for a one-month window to negotiate with the 26-year-old Matsuzaka, who is under contract with the Lions. The window expires this Thursday. If no deal is reached, the Red Sox get their money back, but lose out on perhaps the best Japanese pitcher in recent memory.

And no deal may be the outcome. Matsuzaka is represented by Scott Boras and talks have gone nowhere. The Red Sox are said to be offering $8 million a year, while Boras believes that Matsuzaka's market value--in a market where free agent Jason Marquis, he of the 6.02 ERA and 14-16 record, can land a 3-year, $20 million deal with the budgetless Cubs--is worth at least $15 million and up to $20 million a year. Boras also contends that the Red Sox's $51 million posting payment to the Seibu Lions is not crucial to contract negotiations with his player, since his player isn't receiving any of that money. Boras also notes that the $51 million is not included in the luxury tax figure, and that the Sox would be able to write off some of the $51 million as a marketing cost. It is also thought that Sox would receive a less measurable, but nonetheless meaningful benefit by making in-roads in the Japanese economy and culture.

Today's Boston Herald features an anonymous Red Sox executive (Larry Lucchino?) blasting Scott Boras, even intimating that Boras is not representing the best interests of his client:
Negotiations between the Red Sox and Japanese pitcher Daisuke Matsuzaka have essentially broken down, a source familiar with the talks said late last night, adding that unless there is an abrupt change of course, Matsuzaka will not be signing with the Red Sox before Thursday's midnight deadline.

Attempts to reach Matsuzaka's agent, Scott Boras, were unsuccessful last night. However, the well-placed source blamed Boras for stubbornly being unable to get over the flaws in the Japanese posting system, saying that he has been unwilling to negotiate and that he has acted disinterested in even making a deal.
ESPN's Peter Gammons has more damaging commentary from the Sox, with the implication that the Sox believe Boras is not negotiating in good faith:
While Boras remains adamant in asking for close to a Jason Schmidt average annual value, Red Sox officials feel that the superagent prefers to keep Matsuzaka in Japan for two more years, then get $140 million for seven years after 2008.
So is Boras not making a good-faith effort to get Matsuzaka signed? Keep in mind, as noted by Professor Emily Houh in The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, 2005 Utah Law Review 1 (2005), the absence of "good-faith" in contract negotiations often does not have legal significance:
Section 205 of the Restatement of Contracts explicitly takes the position that it, "like the Uniform Commercial Code ... , does not deal with good faith in the formation of a contract." Thus, the common law obligation of good faith fails to reach the most troubling forms of contractual bad faith: those that occur during contract negotiation and formation.
But even if the absence of good faith is not legally meaningful, what about the practical implications of Matsuzaka returning to the Seibu Lions--the same team that gave him a farewell event in front of 36,000 fans and that presumably doesn't want to return the $51 million? Can he really go back? Hasn't that bridge already been crossed, if not burned?

Lastly, if Boras fails to reach a deal with the Sox, what might that do to his professional reputation as an agent in Japan? I suspect Matsuzaka might be his last Japanese client for some time if that were to occur.

Having said that, Boras recently placed J.D. Drew with the Sox and is also the representative of Jason Varitek, so he has enjoyed successful negotiations with Sox management, thus supplying some comfort to Sox fans with the Thursday deadline approaching (although don't remind those same fans of another of Boras' clients, some guy named Johnny Damon).

See also
* Boras Almost Steals Another One (9/1/2006)
* Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players (5/23/2006)

Posted By : Michael McCann

Luminescent Basketball Uniforms Coming to an Arena Near You?

Message posted on : 2006-12-09 - 12:53:00

Tom Simonite from New Scientist Magazine has an interesting article on new basketball uniforms being developed that will indicate a player's statistics and other game information through luminescent bars:
The simple, coloured display panels are attached to each vest and connected to a small computer, about the size of an iPod, strapped to each player's body. These computers communicate wirelessly with a central control system, installed at the side of the court, which keeps track of all relevant statistics as the game goes on.

Luminescent bars running up the side of a vest indicate the points scored by each player, while lines on their shoulders show the number of fouls against them. Panels on each player's chest indicate when the game time or shot clock is running low, and panels on their back show which team is winning . . . this gives players greater confidence in their team's tactics, say the researchers involved.

"Team sports uniforms already communicate information visually," like a player's name, says Mitchell Page, who developed the system at the University of Sydney. "We wanted to augment the existing team sports uniform model to communicate more relevant information, such as a player's stats and performance."
The uniforms--known as TeamAwear--are the creation of Mitchell Page, a University of Sydney student who "came up with the idea while playing computer sports games, which use graphics and icons to tie statistics to the virtual players and track their performance. He wondered how such on-screen graphics in sports telecasts could be made available to players and spectators at the ground."

We know the NBA is always looking for new sources of revenue, so maybe the league will find something here. And players would seemingly benefit by more easily knowing game information, such as how much time is left on the shot clock and the number of timeouts remaining. Other players, particularly those interested in their own statistics (such as one on the verge of getting a triple-double) might also find this information helpful. But I have a feeling Billy Hunter and the Players' Association would have some reservations, including those relating to workplace safety. After-all, what about the risk of electrocution or burns? But Mitchell counters these concerns on his blog when writing, "the risk of harm from electrocution is for all intents and purposes, zero" and players who have tested the uniforms "have reported no electrical shock whatsoever."

In any event, while reading this story, I couldn't help but recall that old NBA Jam videogame, where players would "heat up" both figuratively and literally:


Posted By : Michael McCann

Revenge of the Groupies, 46 years later

Message posted on : 2006-12-08 - 14:23:00

The type of story you don't see everyday:

An 81-year-old Texas woman named Ruby Y. Young was arrested last week on federal charges relating to letters she had sent to Hall-of-Fame Packers Quarterback Bart Starr (HT: Deadspin). According to a criminal affidavit, Young sent Starr, now 72, several letters demanding that he pay her $ 2 million or she would go to the media with reports of an "encounter" that they had in 1960.

From Deadspin, one letter reads, in part:

"And now, the time has come for you to pay -- to pay for the many injuries you caused me. ... No I am not a push-over Mr. Starr -- and no, I do not need the money -- but I intend to see that you pay for your wrong doings (sic) to me ...," said the first letter, dated Oct. 30, 2006, which an agent quoted in part in the affidavit. "How much is it worth to preserve this 'image' presented to the public these many years of who and what you are?"

"I am going to be vindicated one way or another," Young's first letter said, according to the affidavit. "You know very well that any and all tabloids, TV news casters (sic) such as ABC, CBS, NBC, would simply devour this story. ... And thereby, I would collect money from these sources. But, I first want to give you the chance to pay me back in dollars rather than exposure."


Among criminal law and free-speech theorists, the rational for the legal prohibition on extortion is something of a mystery. Think about it. Ms. Young had 4 options. She could have:

1) Gone to the press with the details of whatever Starr did to her. Nothing criminal about that. And nothing legally wrong with that if her story is true. If the story is false and she knew it was false when she said it, she might be liable for civil damages for defamation (I think Starr remains a public figure), assuming Starr decided to sue rather than letting the issue go away.

2) Sued Starr for $ 2 million based on whatever improper acts caused her injury. She might lose the suit, either because the claims lack merit and/or because the claims are 46 years old and the statute of limitations has expired (not many civil claims have 50-year limitations periods). And, if the suit is frivolous (i.e., laughably weak and totally lacking any and all merit), she might be subject to sanctions by the court, including having to pay Starr's attorney fees. On the other hand, bringing the lawsuit might have compelled Starr to settle to make the issue go away.

3) Threatened to do # 2 as a way to force a monetary settlement in advance. If done through an attorney and in a non-threatening way, such pre-suit notice and negotiation is actually favored.

4) Sent letters threatening to do # 1 unless Starr gave her what she could seek by doing # 2 (which is what she did).


All four have the same purpose and effect of giving Starr a choice between paying money or having the details of the ancient encounter publicized. But only # 4 is subject to criminal prosecution. And, as the prosecutor in the case noted, that is true regardless of the truth or falsity of Young's story.

The best theoretical arguments talk about the loss of autonomy, of free choice, that extortion inflicts on its victims. But it is an interesting dichotomy for theorists.

Posted By : Howard Wasserman

Tom Brady [insert football pun here in place of the word "sues"] Yahoo

Message posted on : 2006-12-07 - 15:57:00

First he slammed BCS-championship-game-bound Florida. Now, Tom Brady is suing Yahoo over use of his image without permission, as reported by the Smoking Gun. The core of Brady's lawsuit, according to his complaint:
In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.
Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?

Posted By : Geoffrey Rapp

How Would Reinstituting the Military Draft Affect Sports?

Message posted on : 2006-12-07 - 11:19:00

The incoming Chair of the House Ways and Means Committee, U.S. Rep. Charles (Charlie) Rangel (D-NY), has proposed that the United States renew the military draft, which has been suspended since 1973. Rangel sponsors a bill that would require military or civilian service for all American citizens ages 18 to 26. Many nations have similar laws, including Israel, South Korea, and Norway. If Rangel's bill became law, it could have sweeping effects on both college and professional sports.

But why would Rangel--a purple heart, bronze star veteran of the Korean War--support such a bill? Basically, he argues that spreading military obligations more equitably would encourage political leaders and opinion leaders to more carefully deliberate the deployment of troops into combat. After-all, of the 535 members of Congress, only 7 have children in the military who are participating or could be called to participate in the war. I'm not sure if there is similar data on the opinion-leader/think-tank types who championed the Iraq War, but I suspect a similarly small percentage did so with the prospect of personal loss. A more general analysis of the relationship between military recruitment and socio-economic status can be read here, which details how young men from poorer backgrounds are actively recruited, while those from more affluent communities receive much less attention. Rangel also has an op-ed in the New York Daily News which notes that persons of color bear a disproportionate share of protecting the country.

Rangel's proposal also goes to the absence members of Congress with military backgrounds. In fact, according to University of Maine law professor Donald Zillman, only about 30% of Congresspersons have military backgrounds, and only one in 10 of the newly-elected members of Congress served in the military. Back in 1978, about 80% of the members of the House of Representatives had military experience, and in 1985, about 75% of the members of the Senate had that experience. Times have indeed changed, and not many of the people who are entrusted with the decision to authorize wars do so with actual knowledge of what wars are like.

Of course, whatever conceptual appeal Rangel's plan may have, his bill is very unlikely to secure passage. Many influential members of his own party, including incoming chair of the Senate Armed Forces Committee, Senator Carl Levin, oppose it, and fewer than 20% of Americans are supportive. Perhaps most significantly, Rangel's plan will not be on the Democrats' agenda when they re-take control of Congress in January.

But let's say that Rangel's plan gradually gains support in 2007, eventually makes its way for a vote, passes, and President Bush signs it (or vetoes it, but his veto is overridden). Beyond many more important questions, what would happen to sports?

The specifics of the draft or compulsory service obligation would obviously prove crucial, as would the nature, extent, and duration of future American forces in Iraq (and/or other countries). But as a barometer, consider how compulsory military service in World War II substantially affected sports. In fact, 638 NFL players served during the war, as did more than 500 MLB players.

To see one specific effect, take a look at Matthew Algeo's fascinating new book Last Team Standing: How the Steelers and the Eagles - 'The Steagles' - Saved Pro Football During World War II. In it, he writes about how the Philadelphia Eagles and Pittsburgh Steelers, both having lost many players to military obligation, actually merged for the 1943 season and were called "The Steagles." They finished with a 5-4-1 record.

Much has also been written about star MLB players being drafted. Ted Williams, Joe DiMaggio, Hank Goldberg, and Bob Feller were among them. To the right we see a picture of Ted Williams--he of the 20:10 vision--being sworn into the Navy, for whom he would star as a fighter pilot (in both WWII and the Korean War). For some great background on "Wartime Baseball" be sure to check out Gary Bedingield's Baseball in Wartime website and also the Baseball during WWII website.

Another consequence of players being overseas was the rise of women's professional baseball. Between 1943 and 1954, we had the
All-American Girls' Baseball League, which according to historian James A. Percoco, is the only professional baseball league for women in American history. A similarly positive effect was a greater desire for desegregation in sports, particularly after soldiers from all racial/ethnic backgrounds fought together to defeat the Nazis.

The Vietnam War also entailed the drafting of professional athletes. For instance, Juanita Secor writes about Rocky Bleier, "who won four Superbowl rings with the Pittsburgh Steelers and drafted during the Vietnam War in the Army as an infantrymen. After his time in the war, he suffered severe leg injuries but he never lost sight of his passion for the game. He ended playing for 12 years more and was the go to guy for his team."

So what might happen to sports today with a draft? Would the legacy of Pat Tillman voluntarily giving up his NFL career and ultimately his life prove influential? Would the legacy of Muhammad Ali refusing the Vietnam War draft as a conscientious objector also prove influential? You can argue that both were courageous in their own ways, and I suspect their stories would be spotlighted should a draft be reinstituted.

Posted By : Michael McCann

Welcome Back: Mutombo, Richards, and Racist Cheering Speech

Message posted on : 2006-12-06 - 23:15:00

Good evening and thanks to Mike & Co. for inviting me back for another guest stint. Actually, the stint began a couple days ago, but this is the first chance I have had to post something.

There is nothing going on right this minute that is sports-related that peaks my legal interest. So let me backtrack to two pieces of old news: Michael Richards (no link or explanation necessary) and Dikembe Mutomo's heckler (earlier this year, a heckler in the crowd called Mutombo a monkey, causing Mutombo to almost go into the stands after the man and causing the NBA to ban the fan for the remainder of this season).

What do they have to do with one another? They together relate to the problem of racist taunts and chants at sporting events. In writing about fan speech, I suggested that pretty much all heckling and taunting is fair game, as long as it does not cross-over into the narrow category of "fighting words," meaning direct, targeted, close-up, face-to-face insults. For an example of racial speech, I proferred a protest during Jackie Robinson Day at Shea Stadium, in which White Supremacists chanted about "the good old days" of segregated baseball--an example of pure political speech (however offensive). For examples of heckling, I suggested that fans could call players on anything and everything, related to on-field performance, clubhouse problems, and off-field daliances.

But I did not consider the most-blatant example of racial heckling: a fan in the close rows of a small arena shouting a racist epithet at a particular player. And the Richards and Mutombo situations together suggest that as we move from racial/racist political messages into more directed racist taunts, epithets, and name-calling, the analysis gets skewed.

First, consider that most people thought it was OK for Mutombo to almost go into the stands after the heckler, something that probably would not have been tolerated if the fan had called him a non-racist name (compare the reaction to the Texas Rangers' Frank Francisco throwing a chair at hecklers in 2004). Because the insult was racial, the violent reaction was more acceptable.

Second (and this is a lesson I take from the Michael Richards debacle): Racist taunts are perceived not to target and insult only the individual at whom the insult is directed. Rather, racist insults have been "collectivized." That epithet targets and offends everyone of that racial group. And, to some extent, it offends every fair-minded member of society (regardless of race) who hears it uttered. This means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be "fighting words" towards the player under the generally understood definition) might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs

I plan to explore the entire scope of expression in sports in a future (hopefully book-length) project. I think the questio of racist speech, in the sense of epithets, may be its own chapter or article.

Posted By : Howard Wasserman

Rick Karcher Goes to Washington

Message posted on : 2006-12-06 - 15:02:00

Rick is travelling to D.C. today to speak before Congress relating to his excellent Sports Law Blog commentary on NFL agent Carl Poston and the proper role of unions in disciplining agents (see Rick's posts from 11/22/2006; 11/16/2006; 9/25/2006; 1/31/2006; also see his law review article Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players). Here is an excerpt from a USA Today story on today's hearings:
WASHINGTON (AP) — New York Giants linebacker LaVar Arrington is tentatively scheduled to testify before Congress this week at a hearing involving his former agent.

Arrington, a three-time Pro Bowl player; NFL Players Association general counsel Richard Berthelsen; and a law professor [Rick Karcher] were on a "tentative witness list" e-mailed to The Associated Press on Tuesday by House Judiciary Committee press secretary Terry Shawn.

Arrington did not immediately return a phone message left for him by the AP on Tuesday night.

The Subcommittee on Commercial and Administrative Law has scheduled an oversight hearing for Thursday to examine the NFL Players Association's arbitration process. Lawmakers will be looking into the NFLPA's suspension of Arrington's former agent, Carl Poston, stemming from his handling of a contract the linebacker signed with the Washington Redskins near the end of the 2003 season.

Later today, Rick's statement should be available here. Good luck Rick!

Posted By : Michael McCann

Law Schools with Sports Law Profs, 2006-2007

Message posted on : 2006-12-05 - 15:18:00

Last spring, I posted a list of law schools with self-identified "Sports Law Professors." Subject to the disclaimers made in that post, here is an updated list (schools new to the list, or with additional faculty members, are indicated in bold):
Akron; Alabama; Arkansas (2 profs); Baltimore; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Chapman; Cincinnati; Cooley; Connecticut; University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola – LA; Marquette (3 profs); Miami (2 profs); Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); Missouri-Kansas City; New England; New Mexico; New York University; North Dakota; Nova Southastern; Nebraska; Northeastern; Northern Kentucky (2 profs); Notre Dame; Ohio Northern; Ohio State; Oklahoma; Pepperdine; Penn State-Dickinson; Puerto Rico; Richmond; St. John's; Saint Louis; Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn (2 profs); Western New England; West Virginia; Whittier; Widener (2 profs); William & Mary; Willamette (2 profs); Yale
While it's nice to see some new additions to this list, a number of schools appear to have lost their sports law faculty members: Barry, DePaul, Illinois, Maryland, North Carolina, and St. Thomas (MN).

Posted By : Geoffrey Rapp

Graduation Gap Bowl

Message posted on : 2006-12-04 - 16:56:00

Derrick Jackson of the Boston Globe has compiled his annual Graduation Gap Bowl. It compares the Associated Press Top 25 college football teams with how those teams would rank by the graduation rates of their players:

AP Top 25 College Football

Team (1st-place votes)Record
1. Ohio State (65) 12-0
2. Florida 12-1
3. Michigan 11-1
4. LSU 10-2
5. Louisville 11-1
6. Wisconsin 11-1
7. Oklahoma 11-2
8. USC 10-2
9. Boise State 12-0
10. Auburn 10-2
11. Notre Dame 10-2
12. Arkansas 10-3
13. West Virginia 10-2
14. Virginia Tech 10-2
15. Wake Forest 11-2
16. Rutgers 10-2
17. Tennessee 9-3
18. Texas 9-3
19. BYU 10-2
20. California 9-3
21. Texas A&M 9-3
22. Nebraska 9-4
23. Boston College 9-3
24. Oregon State 9-4
25. TCU 10-2
Others receiving votes: Georgia 57, Georgia Tech 53, Hawaii 25, Houston 21, Penn State 9, Maryland 6, South Florida 6, Navy 4, South Carolina 3, UCLA 2.

Top 25 Graduation Rates

Team Players' graduation %
1. Navy 98
2. Boston College 96
3. Notre Dame 95
4. Wake Forest 93
5. Nebraska 88
6. Florida 80
7. Penn State 80
8. Texas Christian 78
9. Virginia Tech 74
10. Michigan 71
11. South Florida 66
12. Boise State 65
13. Maryland 64
14. South Carolina 64
15. Auburn 63
16. Texas A&M 63
17. West Virginia 63
18. Wisconsin 62
19. Oregon State 60
20. UCLA 59
21. Rutgers 58
22. Tennessee 58
23. Arkansas 55
24. Georgia Tech 55
25. OSU and USC 55
Barely passing graduation rates in the AP rankings: Brigham Young 53, Louisville 53, Oklahoma 52, Houston 51.
Teams that should be dropped from bowls on overall graduation success rates: Hawaii 49, LSU 49, California 44, Georgia 41, Texas 40.

Say what you want about Notre Dame football and its fans, but the team's graduation rate is impressive. As to my friends from the University of Texas, ahh . . .

Posted By : Michael McCann

The Economics of the (Curious) MLB Posting System

Message posted on : 2006-12-04 - 13:28:00

Some of the problems associated with baseball's system have been discussed by Rick here, and our friend The Sports Law Professor, here. Now, some of these concerns are confirmed by economist Duane Rockerbie in a new essay posted on SSRN: Peculiarities of the Major Leage Baseball Posting System, which can be downloaded free of charge. The piece contains very little jargon (and no math) and adds texture to the problems associated with the posting system. For example, the author discusses the danger of "foreclosure," under which "one bidder prevents all other bidders from obtaining the rights to negotiate with the Japanese player, even though the winning bidder has no intention of signing the player to a contract." Because Japanese clubs must decide whether or not to accept a bid before learning the identity of the bidder, they are unable to avoid accepting a bid by a club suspected of opportunistic and disingenuous foreclosure bidding. The author describes a possible alternative, the European transfer method for soccer players, but suggests that it would not be an appropriate model for Japanese players moving to MLB because of the relatively few Japanese-MLB transitions each year.
Posted By : Geoffrey Rapp