Sports Law Blog
All things legal relating
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Wednesday, April 23, 2014
 
Wiggins Never a Jayhawk? Foreign Student Athletes May be Ineligible to Play if College Athletes are Employees

There are many potential consequences to college athletes being deemed employees. One potential consequence that hasn't been discussed, and that was brought to my attention in a reader e-mail, is the impact employee status would have on foreign students in college who also play sports.  These student athletes are in the United States on F-1 Visas.

Immigration attorney Theodore Chadwick of the Wisconsin-based Grzeca Law Group raises this issue and emails me what it all means:

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http://www.grzecalaw.com/cm/images/T%20%20Chadwick.jpeg I've been following the potential unionization and “employee” designation of student athletes, and given my occupation, I thought of another wrinkle that I haven’t seen addressed in any news articles or opinions.

Students from foreign countries are in the United States pursuant to F-1 status, which generally allows for studies, but not work. Only under limited situations are foreign students allowed to be employed while enrolled: either for on-campus employment of 20 or less hours, or based on financial need. Student athletes practice far more than 20 hours per week and must travel for games. 

Thus, it appears that if student athletes are deemed employees, foreign students would be ineligible to play (work) based on current immigration laws.

 * * *

So if college athletes were employees, Andrew Wiggins, a Canadian and likely top 3 pick in the 2014 NBA draft, may not have been able to play at University of Kansas this past year.  It has been reported by some outlets that Wiggins may have dual Canadian-U.S. citizenship because his dad, former NBA player Mitchell Wiggins, is an American.  Assuming Andrew Wiggins only has Canadian citizenship and would not seek U.S. citizenship, what might Wiggins have done instead this past year?

The NBA wasn't an option due to the 19-year-old plus one year removed from high school eligibility rule.  So I imagine Wiggins would have played professionally abroad for a year and waited out the NBA's eligibility rule, much like Brandon Jennings did from 2008 to 2009.  During that year, Jennings earned more than $1.6 million in salary for Lottomatica Roma while also receiving substantial income from Under Armour in an endorsement deal.

Much less likely, Wiggins could played in the D League, where he would have been eligible, but where salaries are capped at around $25K.  While endorsement income would have supplemented his D League salary, Wiggins would still have earned much more playing abroad.

Or Wiggins could have simply sat out the year and worked out in preparation for this June's draft.

But the larger point is Wiggins may not have been in college basketball for a year, and the same would be true of other star college players who aren't U.S. citizens.

Update: Attorney Chadwick, in response to Twitter comments, emails me several points which I excerpt below:

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As some comments state, there might be a fix with another visa (probably a P, not an H-1 or O as they’ve suggested), but it would be a bit more complicated than simply switching categories...[T]o get P status, the individual or team must be “internationally recognized,” which is not an easy standard.  Andrew Wiggins probably could get by with that, but doubtful for almost everyone else and most other teams, especially D-II and D-III.  Also, I don’t think there are regulations specifically discussing this, but I don’t know that individuals in P status would be allowed to study.

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Monday, April 21, 2014
 
Why aren't the Mid-American Conference, Conference USA & Mountain West Conference being sued over Grants-in-Aid? Some Answers

In the last two months, several current and former college athletes have sued the NCAA, Pac-12, Big Ten, Big-12, SEC and the ACC over the value of athletic scholarships.

The first one to do so was former West Virginia running back Shawne Alston. Alston alleges that the NCAA, its member institutions, and the five major conferences are in violation of antitrust law by capping athletic scholarships (grants-in-aid) to the cost of tuition, room and board, books and fees. Clemson corner back Martin Jenkins and three other current players have raised the same basic argument in their own lawsuit.  If these players succeed, college athletes could receive more value--perhaps dramatically more value--in their scholarships.

One mystery to me and I know to several other sports attorneys is why these players and their attorneys did not also sue the Mid-American Conference, Conference USA and Mountain West Conference.  There is no obvious reason why these conferences and possibly other conferences weren't also named as defendants. 

I posed this issue to Jon King, who is one of Alston's lead attorneys. King, an attorney at Hagens Berman Sobol Shapiro, kindly answered.  There are several reasons, as his email details:
Hi Mike,

Speaking for the Alston case, a mix of reasons (which I'd imagine are the same in the other case), including these:

1) The 5 Power Conferences are among those that have disproportionate representation on the NCAA Division I Executive Committee, the NCAA Division I Board of Directors, the NCAA Division I Leadership Council, and the NCAA Division I Legislative Council. They thus have an increased ability to initiate, maintain, and change NCAA rules as compared to members of the other conferences.

2) They comprised 5 of the 6 BCS AQ conferences going back to the start of the class period in 2010.

3) Their Conference Commissioners have been the most outspoken during the class period in terms of stating publicly that they would pay the full stipend to players (meaning, the difference between the value of the athletics grant-in-aid vs. the actual cost of attendance) if permitted. These statements will assist in minimizing potential barriers to the certification of a damages class, and limit the defendants' ability to argue that individual issues on damages predominate.

4) The new NCAA legislative proposal afoot makes a clear distinctions between the 5 Power Conferences and all others in terms of potentially giving them autonomy, thus recognizing a distinction between them and others, no doubt in terms of revenue generated and other commercial factors. For example, see this article.

Finally, I note that cases often evolve, and defendants often wind up being added to a case as it proceeds (and also can be dropped if appropriate). For the reasons stated above, we thought it make the most sense to proceed as we did.

I hope this is helpful!

Best Regards,
Jon

Jon T. King | Hagens Berman Sobol Shapiro LLP | Direct: (510) 725-3034 

Saturday, April 19, 2014
 
Ejected for being bad at baseball?

On Friday night, Yankees reliever Cesar Cabral faced six batters in the eighth inning, hitting three of them. After the third HBP, Cabral was ejected by plate umpire Joe West. West said after the game that Cabral "probably" did not hit the third batter maliciously, but that "before somebody got hurt, something had to be done."

My question is where West got the authority to do it. Rule 8.02(d) of the Official Baseball Rules allows the umpire to "expel" a pitcher who intentionally throws at a batter. But no one believes Cabral was intentionally throwing at anyone (I happened to watch the game--Cabral was so bad that if he had thrown at the batter, he probably would have missed). Rule 9.01(c) gives umpires residual authority to "rule on any point not specifically covered in these rules." Perhaps that includes power to ensure player safety by ejecting a player whose performance threatens that safety. (In fairness to the ump's creative rule application,  Yankee manager Joe Girardi obviously did not want to go further into his bullpen and was going to stick with Cabral to finish the inning, no matter how ineffective or dangerous he was).

Is there some other basis for this ejection that I am missing?

Friday, April 18, 2014
 
Journal of Sports Analytics - Call for Papers

The Journal of Sports Analytics has announced a new call for papers pertaining to "sports law analytics."  The call for papers can be accessed here.  Please contact me if you have any questions.

Tuesday, April 15, 2014
 
On resting players for crunch time

From a guest at PrawfsBlawg.

 
UNH Law Welcomes Attorney Kathy Sulentic, Assistant Director of NCAA Enforcement

This should be a great event for anyone in the area who's interested in NCAA investigations and enforcement issues.  Concord New Hampshire is about 70 minutes from Boston.


Who is the National Collegiate Athletic Association (NCAA)? with Katherine Sulentic

Please join the UNH School of Law Sports and Entertainment Law Institute and the Franklin Pierce Center for Intellectual Property for a very exciting Lunch & Learn:

Who is the NCAA? with Kathy Sulentic

Lunch will be served.  Please RSVP: to ipcenter@law.unh.edu by Wednesday, April 16.
Following her presentation, Sulentic will host Office Hours to speak with interested students from 1:45-2:45 in office #197 in the IP Center.
We hope to see you there!

Katherine (Kathy) Sulentic currently serves as an assistant director of enforcement on the NCAA enforcement staff.

Her primary responsibilities include conducting joint investigations with institutions on potential Level I/II violations of NCAA legislation as well as leading the department’s academic integrity unit by providing subject matter expertise on Bylaw 14 and academic fraud issues.

Prior to joining the NCAA, Sulentic worked at both the University of Nebraska-Lincoln and the University of Colorado-Boulder in athletic academic advising.  At Nebraska, she worked with the sports of football, men’s and women’s track and field, and women’s rifle.

Sulentic also served as Dr. Tom Osborne’s teaching assistant for the courses Coaching Football and Sport and the American University.

At Colorado, she worked with the sports of football, women’s basketball, and men’s and women’s ski.  She also worked in the areas of initial and continuing eligibility.

After graduating from law school, Kathy worked as an associate in the Boston office of Greenberg Traurig, LLP.

She has a BA from the University of Northern Iowa, an MA from the University of Nebraska-Lincoln, and graduated Summa Cum Laude from Roger Williams University School of Law and was a member of their Law Review.

Monday, April 14, 2014
 
The latest on the Aaron Hernandez, Osca Pistorius and Ed O'Bannon cases

I have a new Legal Notebook for Sports Illustrated and I update and make predictions in the Aaron Hernandez, Oscar Pistorius and Ed O'Bannon cases. 

Here are a couple of excerpts:
 
1. Proving joint venture will be challenging. Prosecutors allege Wallace and Ortiz accompanied Hernandez the night Lloyd was murdered, and claim there are text messages revealing Hernandez's intent to kill Lloyd. Wallace and Ortiz being at the murder scene or even encouraging Hernandez will not be enough. Prosecutors must prove that Wallace and Ortiz shared the intent of Hernandez -- the alleged trigger man -- to kill Lloyd. In previous cases, Massachusetts courts have found evidence of "shared intent" through a joint venturer being aware the murderer was armed, making no attempt to disassociate himself the murderer or covering up the crime. But courts in the state have also found that an alleged joint venturer can lack a shared intent if he was intoxicated or high on drugs. There is a strong possibility that Hernandez, Ortiz and Wallace were all high on drugs the night of Lloyd's murder. If they were high, expect attorneys for Ortiz and Wallace to argue their clients lacked the legal capacity to share Hernandez's intent.

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5. The people with the most at stake in the legal war on the NCAA? Star athletes in middle school who may be entering college at around the time all legal appeals have been heard. 

To read the rest, click here.

Sunday, April 13, 2014
 
The best sports deal ever

That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details and the negotiations leading to the original deal. Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).

Thursday, April 10, 2014
 
Breaking Down The Oscar Pistorius Trial on the Nancy Grace show

I was a guest last night on Nancy Grace's show on Headline News (HLN) to talk about the Oscar Pistorius trial, and specifically about whether it was wise for prosecutors to show an old video of Oscar Pistorius shooting a watermelon and then joking about how it was like shooting a zombie's brain.

Nancy thought it was a good idea because the video shows Pistorius to be insensitive and callous, unlike how he has seemed during his trial.

I disagreed, especially since a judge and not a jury will be deciding his fate, and a judge is less likely to be moved by inflammatory videos. To me, the video seems irrelevant as to whether Pistorius intentionally killed his girlfriend and may prove to be a distraction from the real evidence. I also think the video may be perceived as insensitive, since it was raised in the context of Pistorius shooting his girlfriend's brain.

You can decide.  Here's the video:


Wednesday, April 09, 2014
 
Two sides speech in sports

This whole thing is interesting and ironic for what it says about sport and speech. Orioles outfielder Adam Jones harshly criticized fans who run onto the field, suggesting first that players should be able to take a shot at kicking the fans while wearing spikes, then suggesting fines of $ 10,000 plus. What I liked about Jones' opinion were the following comments:

Cuss us out, let us have it, give us a ribbing, remind us of our last five at-bats if they've been terrible, please do, but just stay off the field because you're just causing a problem that doesn't need to be caused.

So Jones just made the best defense of the fullest scope of cheering speech.

Of course, MLB is "reviewing" Jones' comments, perhaps for some punishment. Meaning that while Jones is arguing for a broad vision of fan expression, MLB is pushing a much narrower vision of athlete expression.

Tuesday, April 08, 2014
 
4th Annual Sports Law CLE April 24 hosted by Cozen O'Connor

Sports attorney Steven Silton of Cozen O'Connor and his colleagues have put together an outstanding CLE for sports law rookies and veterans to be held on Thursday, April 24 at the JW Marriott Marquis Hotel in Miami.

Here are some highlights:

Thursday, April 24, 2014
8:00am - 5:30pm


General Admission: $199

NFLPA Licensed Agents: $129

Student: $99
Sport Administrators: Free


___________________________________________________

This program will be submitted for 7 CLE credits
in the jurisdiction of all attendees
_________________________________________________________________

This unique program represents the intersection of issues in professional and amateur sports, media and the law. Join business leaders and sports industry professionals for an informative seminar that examines and analyzes current issues affecting the sports industry today.


Confirmed Panelists:
Super-Agent Drew Rosenhaus
Miami Heat Vice President, Associate General Counsel Eve Wright
Miami Dolphins General Counsel Adam Zissman
Minnesota Vikings General Counsel and Chief Administrative Officer Kevin Warren
Vice President and General Counsel of the Minnesota Wild Steven Weinreich
Tampa Bay Lightning General Counsel Danna Haydar
NFL Agent Kelli Masters
ESPN NFL Business Analyst Andrew Brandt


Topics Include:
Locker Room Culture and Employment Law
Front Office Perspective
Stadium Construction and Financing
Women in Sports
Concussion Lawsuit


For the full agenda, click here. For info on attending, click here.

 
NYU Sports Law Colloquium April 15



Third Annual NYU Sports Law Colloquium
Tuesday April 15, 2014, 10:00am 
NYU School of Law, Lester Pollack Colloquium Room
245 Sullivan Street
New York, NY  

The Sports Law Committee, in association with the Intellectual Property and Entertainment Law Society at New York University School of Law, cordially invite you to a day-long event featuring distinguished panels and discussions on today’s prominent legal issues in the world of sports.

***1.5 Ethics and 3 Areas of Professional Practice CLE Credits Available***

Event Schedule: 

                  10:00 a.m.     The Ethics of the A-Rod Case (1.5 Ethics CLE Credits)
                   Wayne McDonell, Professor of Sports Management, NYU
                   Michael O’Keefe, New York Daily News
                   Eugene Orza, Former Chief Operating Officer, MLBPA
                   Anita Marks, NBC Sports Radio (Moderator)
                   
11:30 a.m.   The Future of the NCAA
                    Marc Edelman, Associate Professor of Law, Baruch College
                    Craig Esherick, Professor of Sport Management, George Mason
                    Len DeLuca, President, Len DeLuca and Associates
                    Charles Grantham, Former Director, NBAPA
                    Donald McPherson, NCAA Football Analyst
                    Robert Boland, Academic Chair of Sport Management, NYU
   
12:45 p.m.   LUNCH

1:30 p.m.                The Anatomy of a Sponsorship Deal
                    John Maguire, SVP Corporate Partnerships, NY Giants
                    Joe Nahra, Legal and Business Affairs, CAA
                    Christina Song, VP of Legal and Business Affairs, MSG

3:00 p.m.   Hypocrisy in Intercollegiate Athletics and   Dishonesty in Academia
                  Michael Hausfeld, Chairman, Hausfeld, LLP

For more information contact Sports Law Committee Co-Chairs Steven Couper (spc318@nyu.edu) or Adam Dale (aid233@nyu.edu)