Sports Law Blog

Ryan Braun and Proceduralism

2012-02-24T23:40:00.001-05:00

Emily Bazelon has an essay at Slate framing the decision overturning Ryan Braun's suspension in the context of the (somewhat unique) U.S. emphasis on procedural rights even in the face of substantive guilt. The media and public discussion of the Braun case in the next few days will illustrate how the public at large internalizes (or doesn't internalize) concerns for procedural justice.

I’m Begging You for Mercy

2012-02-23T16:00:00.000-05:00

As the hit song by Duffy goes:

You got me beggin' you for mercy
Why won't you release me
You got me beggin' you for mercy
Why won't you release me
I said release me

Deep in the middle of the 426 pages that comprise the 2011-12 NCAA Division I Manual is Bylaw 13.1.1.3 entitled “Contacts & Evaluations: Four –Year College Prospective Student-Athletes” which reads:

“An athletics staff member…shall not make contact with the student-athlete of another NCAA collegiate institution…without first obtaining the written permission of the first institution’s athletics director to do so…regardless of who makes the initial contact.”

The result is that while coaches are free to enjoy free agency and jump from school to school at will, a student-athlete needs permission from his or her school’s athletic department before a conversation with another school is allowed.

If the request for contact under Bylaw 13.1.1.3 is granted, the student-athlete may transfer, accept a scholarship, and compete immediately. If the request is denied, the student-athlete is free to transfer to another institution but must do so without any contact with the athletic department or any form of athletic scholarship. After transferring, after one calendar year the student-athlete may accept a scholarship and compete.

Additionally, further restrictions are placed on individuals in the sports of baseball, basketball, football, and men’s ice hockey in Bylaw 14.5.5.2.10 entitled “One-Time Transfer Exception.” Under this rule, even if a student-athlete is granted permission to transfer, they must sit one year before being able to compete in these sports unless granted an additional release from his or her initial institution. Permission is therefore required for an immediate scholarship and the right to compete—the problem is that this permission is often withheld and the process to challenge a denial flawed.

These restrictions are intended to curtail the free movement of student-athletes. Typically, schools allow their student-athletes the ability to compete immediately if the transfer is based on personal hardship (returning home to care for a sick relative) or if the student-athlete has graduated and intends to pursue graduate work at a school that offers graduate coursework in a field that the initial school does not.

The basic concept, rooted deep into the NCAA rules and codified in the National Letter of Intent (NLI) that every student-athlete signs, is that the student commits to an institution not a coach. While coaches may make promises about building something together and partnership for the future with a recruited student-athlete, when recruiting a student-athletes these promises are, under the NCAA rules, unenforceable and irrelevant.

Undoubtedly written by lawyers, there is a semblance of due process in both transfer bylaws which provides a student-athlete, denied the transfer request by his or her institution, the right to a hearing. The rules read, in part, that the student-athlete may be “provided a hearing conducted by an institutional entity or committee outside of the athletic department.”

To summarize: the NCAA rules, written by schools claiming to protect the best interests of student-athletes, allow coaches to move about at will but student-athletes need permission to do so. Certainly schools may limit coaching movement by attempting to enforce employment contracts but there has been limited success in the court system in this regard.

For three recent examples (The University of Maryland, Kansas University, and Saint Joseph's University) along with my recommendations, check out the full article [link forthcoming] at the Huffington Post.

Why is it so hard for NCAA athletes to transfer?

2012-02-23T12:26:00.000-05:00

Warren Zola will have a column on this topic in the coming days, but in the meantime, the New York Times examines NCAA rules for colleges when players seek to be released from their scholarship and transfer schools. Adam Himmelsbach interviews several people for the story, including yours truly, and it comes in the wake of Danny O'Brien and Todd O'Brien's difficulties in leaving one school to play for another. Compare how student-athletes looking to transfer are treated with other students who seek transfer from one school to another for academic (or other) reasons.

West Virginia and the Big East Break-Up on Valentine’s Day

2012-02-21T19:30:00.003-05:00

Valentine’s Day 2012 marked the end of the twenty-one year relationship between West Virginia University (WVU) and the Big East Conference, and while no love was lost, the parties did manage to reach a settlement agreement. The agreement settled both the lawsuit that WVU filed against the Big East at the end of October 2011 in West Virginia and the Big East’s subsequent countersuit filed against WVU less than a week later in Rhode Island. WVU sued the Big East claiming breach of fiduciary duty and the Conference brought an action claiming that WVU breached its contractual obligations to the Big East.

The settlement agreement enumerates the terms of payments to be made and requirements to be fulfilled by both parties. When WVU announced it was leaving the Big East in October 2011, it initially paid the Big East $2.5 million, only half the amount of the buyout that was stipulated in the Big East bylaws at the time. However, this buyout amount was subsequently raised to $10 million, as the Big East sought to inoculate itself from further conference poaching. The agreement calls for WVU to pay the Big East a lump sum of $8.5 million, much of which will likely come from University donors by way of the WVU Foundation, a private fundraising organization that recently set up a “Big 12 Transition Fund.”

The agreement also provides that a “Forecasted Amount” of $9 million will be forfeited by WVU, with the Big East paying WVU any amount that it is entitled to receive from 2011-2012 Conference revenues beyond that $9 million figure. The settlement also sets forth numerous other terms and conditions, including review and mutual agreement on the terms of a financial reconciliation report to be composed by the Big East at the end of the fiscal year. WVU will be required to pay any additional amounts owed to the Conference to effectuate its full release.

WVU certainly encountered several obstacles on its path to the Big 12, but it will now officially become a member of the Conference as of July 1, 2012 (pending its compliance with the settlement agreement). While this particular suit has been resolved, its precedential effect bears monitoring. Following the settlement, the Big East released a statement that reads, in part, “West Virginia University has acknowledged and agreed that the Court in Monongalia County, West Virginia, will enter a judgment that the Big East Conference Bylaws are valid and enforceable, and will dismiss with prejudice all of West Virginia’s claims against the Conference.”

However, the West Virginia Court only recognized the validity of the bylaws as part of the consent decree it issued as a result of the parties’ settlement. This recognition is not a binding declaration that every provision of the Big East bylaws is valid and enforceable against remaining members. This could leave the Big East vulnerable should another university follow in WVU’s footsteps and challenge the Conference in court. For a conference that has been particularly susceptible to departures during this recent phase of realignment, the financial settlement with West Virginia may prove illusory its ongoing pursuit of stability.

Certainly, Syracuse University and the University of Pittsburgh are watching closely as institutions leaving the Big East for the Atlantic Coast Conference (ACC), but as of now, both the Orange and the Panthers have pledged to wait the full twenty-seven months (pursuant to Big East bylaws) prior to joining the ACC , which would be the 2014-2015 season. While the Big 12 enjoys a greater individual member payout than the ACC (currently, approximately $15 million versus $13 million), the “lame duck” status and monetary gains in a move to the ACC (current Big East payout is approximately $3 million for football members*) may prove too great a temptation for the Mountaineers' former Big East brethren.

*Note that these figures are through 2013, and Big East basketball/non-football schools receive an even smaller television payout, but that this amount will assuredly go up as the market dictates despite the departure of WVU, Syracuse and Pitt.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their assistance on this piece.

Cardozo Law Symposium: Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics

2012-02-20T20:00:00.003-05:00

On Thursday, March 8 the Cardozo Journal of International and Comparative Law will host a symposium titled Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics. Anyone can attend this free symposium (and if you plan on attending, please be sure to RSVP to the Symposium Editor, Wells Crandall, at richard.crandall@law.cardozo.yu.edu by March 4). Attorneys will receive 1.5 hours of transitional/nontransitional professional practice CLE for each session they attend.

I'm honored to be a panelist. Here is the schedule:

8:30 AM - 9:00 AM - Breakfast

9:00 AM - 10:30 AM - Panel on surveillance at the Olympics

Michael Drury, of Burton Copeland. Mr. Drury is a barrister in England who works on surveillance law. His prior post was General Counsel to the GCHQ, which stands for "Government Communications Headquarters," which is an intelligence agency in the U.K., and is akin to the NSA.

Pete Fussey, Sociologist and Criminologist. He wrote "Securing and Sustaining the Olympic Games." He has in depth knowledge of the surveillance developments in Britain and how Britain has developed quite a bit of surveillance.

10:30 AM - 10:45 AM - Break, snacks provided

10:45 AM - 12:15 PM - Panel on brand protection at the Olympics

Michael Kuh, associate at Latham and Watkins, who was on the Legal Advisory Group for New York's bid to the International Olympic Committee. More recently, he worked on USA bid to host the 2022 World Cup.

Michael McCann, Sports Law Institute director at Vermont Law School and Legal Analyst at Sports Illustrated. He wrote As Super Bowl week commences, NFL's clean zones still an issue for Sports Illustrated last month and is an expert on consumer, antitrust and sports law issues.

Ben Sturner, CEO of the Leverage Agency. He is a sports marketing agent who has 11 agents working for him. His business is marketing brands during sports events. He has attended six Olympics in a work capacity. Notably, he was involved with attempting to sell the naming rights to the "Bird's Nest" in Beijing (see WSJ article here).

12:15 PM - 1:15 PM - Lunch

UC Davis School of Law to host Scott Boras

2012-02-20T08:30:00.001-05:00

UC Davis School of Law’s Entertainment and Sports Law Society presents “Negotiating the Largest Contracts in Sports History” with Professional Baseball Attorney Scott Boras on Monday, February 27 from 3:30pm – 4:30pm at the UC Davis ARC Ballroom.

Named the “Most Influential Non-Player in the Last 25 Years” by Baseball America, Mr. Boras has negotiated many record-setting Major League Baseball contracts since 1982. Many of his former and current clients, including Alex Rodriguez, Barry Bonds, Barry Zito, Prince Fielder, Manny Ramirez, Greg Maddux, Mark Teixeira, Matt Holiday, Jason Werth, and Carlos Beltran are among the highest paid in the game. Do not miss this once in a lifetime opportunity to hear directly from one of the most powerful and innovative people in the world of professional sports.

Admission is free and open to the public. A brief Q&A session will follow the event. To RSVP and for more information, please visit this link.

A higher-profile fan ejection

2012-02-18T17:00:00.000-05:00

Deadspin reports that former NBA and North Carolina State star Tom Gugliotta was ejected from his courtside seats during today's N.C. State loss to Florida State. The piece links to several of my past posts on cheering speech (Sports Law Blog gets results!). N.C. State is a public school, although I am not sure of the status of the off-campus RBC Center in which the Wolfpack plays (the piece describes it as a public corporation, although I'm not sure what that means).

Since ejecting a former NBA star and one of the better players in State's history is going to get more attention than ejecting a snotty 20-year-old undergrad, it will be interesting to see if and how this plays out.

The State of Sports Law - University of Virginia School of Law

2012-02-18T12:00:00.002-05:00

The University of Virginia School of Law is pleased to present a symposium on the current state of sports law, hosted by the Virginia Sports and Entertainment Law Journal and the Virginia Sports Law Society. The event takes place on March 16, 2012 from 8:00AM to 5:00PM. Complete details can be found here. An overview of the panels (and keynote speaker) is below:

Panel 1: NCAA Conference Realignment

As NCAA conferences realign in pursuit of the funding bonanza available from television contracts, the potential gap between the "haves" and the "have nots" continues to grow. This panel discusses the competitive impact that this discrepancy may have on those colleges and universities that are not invited to join the "super conferences." This panel explores the antitrust concerns that may arise and examines the role of Congress and the NCAA in regulating the conferences.

Panelists:

· Christian Dennie, Barlow Garsek & Simon

· Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

· Bernadette McGlade, Atlantic 10 Conference Commissioner

· Moderated by J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

Panel 2: Legal Implications of Financial Distress in Professional Sports

As professional sports teams encounter financial hardship, conflicts in control arise. This panel explores the level of oversight that bankruptcy courts have over professional teams in the midst of financial distress and how that oversight may conflict with the power of commissioners to regulate the sport. Financial distress may lead the team to seek relocation. This panel examines the use of antitrust laws to secure the ability to relocate a franchise over league objection and the potential for expansion in the major sports leagues.

Panelists:

· Mark Levinstein, Williams & Connolly

· Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

· Tom Ostertag ('81), Senior Vice President and General Counsel, Major League Baseball

· Moderated by J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

Keynote Address: DeMaurice Smith

DeMaurice Smith ('89), Executive Director of the National Football League Players Association, will offer his insider's view of the NFL's 2011 lockout. He will focus on the labor and legal issues surrounding the negotiation of the new ten-year Collective Bargaining Agreement with the League.

Panel 3: Amateurism and the Student Athlete

Student athletes generate billions of dollars in revenues for their colleges and universities yet they share minimally in the financial spoils. Is this a wrong to be righted and if so, how? This panel debates the role of the student athlete as an amateur or an employee and the ramifications of the designation. This panel explores whether the student athlete should be compensated and whether an education is adequate consideration for the revenue he or she helps to generate. Also, this panel examines who controls the revenue stream and what role the student athlete should have in that determination.

Panelists:

· Christian Dennie, Barlow Garsek & Simon

· Roscoe Howard ('77), Andrews Kurth and Member of the NCAA Division I Committee on Infractions

· J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

· Alan Milstein, Sherman Silverstein

· Rob Slavis, Assistant Athletic Director, University of Virginia

· Moderated by Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

Panel 4: Sports Law Analytics

As popularized in Michael Lewis’s best-selling book Moneyball and a 2011 Hollywood movie of the same name, the sports industry has firmly embraced the use of statistics, economics, and mathematics (collectively “analytics”) in various decision-making processes. Such analytics have similarly been adopted in the sports law field. This panel discusses how analytics are used in areas such as talent identification, contract negotiation, gambling corruption prevention, and antitrust litigation

Panelists:

· Robert Forbes ('07), Proskauer Rose

· Ryan Rodenberg, Professor, Florida State University

· Kelly Wilson, Assistant Counsel, Under Armour

· Moderated by Thomas Nachbar, Professor of Law, University of Virginia School of Law

Violence and Aggression in Sporting Contests

2012-02-16T09:00:00.000-05:00

There is a new book, "Violence and Aggression in Sporting Contests: Economics, History, and Policy" edited by Todd Jewell, that may be of interest to some Sports Law Blog readers. The table of contents can be found here. While several chapters are largely doctrinal, most include math-heavy econometric analysis to complement the more descriptive sections.

The introductory chapter by Todd Jewell, Afsheen Moti, and Dennis Coates provides a fascinating history lesson about the overlap between violence/aggression and spectator sports.

Dave Berri and I wrote a chapter that includes a meta-analysis of NBA referees as regulators and a statistical look at the efficacy of the so-called "Hack-a-Shaq" strategy.

The book is part of the "Sports Economics, Management, and Policy" series edited by Dennis Coates. Additional books in the series can be found here.

NCAA "Justice"?

2012-02-14T09:00:00.001-05:00

In recent months, New York Times op-ed columnist Joe Nocera, has been on a screed against the National Collegiate Athletic Association and its’ so called “justice” system. Nocera’s recent series of critical commentary focuses primarily on the NCAA’s failure to provide athletes an opportunity to answer charges levied against them by NCAA officials in contravention of America’s fundamental principle of “innocent until proven guilty.” Nocera highlights that the NCAA system of accusations and investigations is more akin to "guilty until proven innocent"and is a far cry from any generally accepted due process standard. According to Nocera, because the NCAA dictates college athlete’s eligibility with such fervor, it consistently hammers the due process rights of athletes by accusing them of fairly insignificant charges without giving the players any real opportunity to dispute the charges, many of which are based on incomprehensible and petty rules.

For example, Nocera writes about Temi Fagbenle, a female basketball player at Harvard that the NCAA forced to forfeit a year of eligibility because she repeated her junior year of high school after transferring from England. Had she started high school in America and repeated or stayed in England and finished high school there, she would have been fine. Nocera also examines the case of Ryan Boatright, a men's basketball player at University of Connecticut. Boatright has had to endure intense pressure (and suspension) from the NCAA while it examined the “suspicious” circumstances that surround his single mother – including her receiving money from friends for Christmas. How can children be punished for the deeds of their parents — deeds that aren’t even wrong in any basic legal sense?,” writes Nocera.

The NCAA claims it has an effective judicial process. Nocera challenges this claim in his string of articles that highlights that the NCAA cares little about an individual athlete and the repercussions an investigation will have on his or her future, when it believes that one of its rules has been broken. Nocera believes that the NCAA is out-of-control because it refuses to allow basic due process rights to the student athletes of its member institutions following an accusation of wrong doing.

Sport and Recreation Law Association Conference

2012-02-14T00:00:00.000-05:00

The conference program for the upcoming Sport and Recreation Law Association (SRLA) conference is now posted. SRLA's annual event will be held March 1-3, 2012 in Greensboro, North Carolina.

José Veras - Milwaukee Brewers Hearing Today

2012-02-13T17:00:00.000-05:00

The Milwaukee Brewers and José Veras held their arbitration hearing today in St. Petersburg. This marks the sixth hearing of the year, and the teams are ahead 3-2. The Brewers have only had five hearings in their history. They lost to Corey Hart in 2010 and José Mercedes in 1998. The Brewers defeated Mike Fetters in 1994 and Jim Gantner in 1991. The panel at today’s hearing was Dan Brent, Marlene Gold, and John Sands according to Associated Press reports. According to my research, Dan Brent has participated in 16 panel decisions, and those panels have decided 12 of the 16 for teams. Brent’s most recent panel was Brian Brunney’s 2010 loss to the Washington Nationals. For Marlene Gold, this is her first baseball salary arbitration experience. For John Sands, a member of the Corey Hart panel in 2010 with Elizabeth Neumeier and Sylvia Skratek, this is his fifth panel decision. Sands also was a solo arbitrator in four decisions. He decided three of those for teams (Tony Tarasco-Orioles-1998, Zane Smith-Braves-1988, and Darryl Motley-Braves-1987). Tarasco was actually waived in March 1998 and picked up by the Cincinnati Reds. Ron Darling won his 1987 hearing with the Mets.

Veras pitched in 79 games last year for the Pirates, and he led the team in appearances. He was traded to the Brewers by the Pirates for Casey McGehee, one of only five undecided cases left in this year’s arbitration pool. Veras had a 3.80 ERA. The team offer was $2,000,000 and the player’s request was $2,375,000. That left a midpoint of $2,187,5000. Veras was paid $1,350,000 in 2011. I am a bit surprised that the Brewers did not find common ground with Bryce Dixson, Veras’ agent, because of their strong preference towards avoiding hearings.

The end of football?

2012-02-12T21:58:00.003-05:00

Tyler Cowen and Kevin Grier have a piece at Grantland that hypothesizes how professional football may end as a major American professional sport under the weight of a worsening concussion crisis. They argue that the "collapse of football is more likely than you might think. . . . Once you start thinking through how the status quo might unravel, a sports universe without the NFL at its center no longer seems absurd." They also argue that the economic consequences will be minimal at the national level, although harsher at the local level in small markets (e.g., Green Bay) that only have professional football.

I agree with the basic point of the piece. I am not sure how long football can continue as it currently is played (and I say that as a big fan). It is not just about "hits to the head" and concussions. The irreducible element of the game is for incredibly large, incredibly athletic, and incredibly fast-moving men to run into one another at full speed. It is simply not possible for serious long-term healt problems to result, no matter the evolution in equipment (which the NFL promoted in a Super Bowl ad this year). All the conversations about player safety seem to ignore that modern players are significantly larger than they were 20 and certainly 50 years ago, but that they're also signficantly faster, quicker, and more agile. If F = M x A, then players today are hitting and being hit with significantly more force than 20 or 50 years ago. Neither eliminating helmet shots nor improving helmets can change that.

This doesn't mean football is going away, just that it is going to become less important to our sports culture. The chain they describe looks something like this: As fewer high schools and colleges have football programs in light of the medical evidence (and probably some large liability judgments), more and better athletes will be drawn to other sports, leaving football with less talent, less money, less cultural and media presence, and, ultimately, more of a niche place in the sports landscape.

It's an interesting take on the issue. There is historical precedent--look at boxing and horse racing. And their broader point is not so much predicting football's demise as suggesting what could happen if things play out a certain way (mostly because of the medical, and subsequent legal, issues) and the status quo unravels. And who better than economists to follow the logical trail . . .

Key Legal Lessons from the NBA and NFL Lockouts

2012-02-10T10:00:00.000-05:00

I'm honored to be a panelist at this year's MIT Sloan Sports Analytics conference (see previous post). I'll be on the Building the Modern Athlete: Performance Analytics panel.

I have a column for the conference titled Legal Lessons from the NBA and NFL Lockouts. Here are a couple of excerpts:

* * *

Part of the explanation for the “better” behavior of teams than their leagues and players’ associations may rest in operational objectives. While leagues and players’ associations are motivated primarily by business and legal considerations, teams are motivated most by competitive considerations. To be sure, leagues “compete” with other leagues, and more generally with other entertainment providers, for fans’ interest and dollars. And players’ associations compete with other players’ associations for most effectively representing their membership. But teams compete with each other every day and are better candidates to utilize analytics and other optimizing approaches. .....

* * *

One caveat: if the NHL locks out its players later this year and if the NHLPA decertifies — which means that each player becomes independent and can file litigation in a court nearby where he plays — expect the players to file antitrust litigation in a federal court in California or Arizona. Both states have NHL teams, meaning the league has sufficient nexus to each state to defend itself in court. More importantly, both states are governed by the U.S. Court of Appeals for the Ninth Circuit, which is regarded as more pro-labor than other federal circuits and which may embrace a view of the Norris-LaGuardia Act favorable to players. It is also possible NHL players could file litigation in Canada, which features stronger labor laws.

The NHL, for its part, would probably seek to move any litigation to New York, where league headquarters are based and where case law from the U.S. Court of Appeals for the Second Circuit is favorable to its interests. The league might instead seek to defend itself in Minnesota or Illinois, both of which are states governed by the U.S. Court of Appeals for the Eighth Circuit, which ruled in favor of the NFL. ...

* * *

To read the rest, click here.

Orioles Defeat Bergesen and Marlins Lose to Bonificio

2012-02-09T14:00:00.002-05:00

In a story of teams with two dramatically different success/failure stories in baseball salary arbitration, the Orioles improved their all-time record to 12 wins and 3 losses, and the Marlins dropped to 3 wins and 7 losses. The Orioles defeated pitcher Brad Bergesen today, and the Marlins lost to Emilio Bonifacio yesterday. The Marlins 2 losses are the only two player victories of the 5 decisions to date. Mark Burstein, Robert Herzog, and Elizabeth Neumeier decided the Orioles-Bergesen case. The Marlins-Bonifacio panel was Burstein, Sylvia Skratek, and Steven Wolf. Burstein is now 1-1 in panel decision after his first two arbitration hearings. Herzog has participated in 6 panel decisions, and the teams have won 4 and lost 2. Elizabeth Neumeier’s log is now 18 team wins and 11 player wins.

Should home schooled children be able to play public school sports?

2012-02-09T00:17:00.000-05:00

I have an op-ed for the NY Times on whether home schooled students should be able to play public school sports. Virginia is considering such a law, and 13 states -- including Florida, where home schooled Tim Tebow grew up and played high school sports -- have enacted such laws, but most states say no. I say yes. Here's an excerpt:

Critics of home-schooled children playing public school sports also worry about public school students losing roster spots on teams to home-schooled children who are better athletes. I find this criticism to be unpersuasive. From at least the high school level on, coaches try to assemble the best teams, which normally means finding the best players, regardless of their backgrounds. Provided the available athletes meet the requisite academic criteria, coaches should be able to pick the best of the bunch.

To read the rest, click here.

Legal Implications of playing beer pong at a bar and then getting injured outside bar

2012-02-07T12:05:00.001-05:00

I'm not sure if beer pong is a "sport", thought it is on TV and Rick Reilly clearly thinks it is. Plus, as we discussed before, spelling bees seem to be sporting events. If a spelling bee is a sport, how could a beer pong match not be?

In any event, for all the beer pong players out there -- if you get drunk playing beer pong at a bar and then get injured outside the bar because you're drunk, one judge in NYC says you can't sue the bar. You've assumed the risk:

* * *

In a decision made public yesterday, Manhattan Supreme Court Justice Lucy Billings threw out Alan Berger’s lawsuit against Wicked Willy’s on Bleecker Street, finding he’d signed up for the fast-paced beer-drinking game of his own free will.

“Despite the game tables, cups and alcohol [that the] defendant bar made available to plaintiff and other bar patrons without serving the alcohol or monitoring its consumption, plaintiff voluntarily engaged in the drinking game” and “consumed alcohol to the point of diminished capacity,” Billings wrote.

Berger was 22 in June 2009, when he got into a heated 3 1/2-hour match with friends playing the game, the object of which is to bounce a pingpong ball into another player’s cup and get them to drink, court papers say.

He took a bus back to New Jersey after the game and was still so drunk he tried to cross Highway 9 near Manalapan and got hit by a car going 50 miles an hour, said his lawyer, Michael Wiseberg.

Berger suffered numerous injuries, including a broken hip, leg and foot, tears in both his knees, and a lacerated liver, the lawyer said. When his blood was checked at the hospital about four hours after he left the bar, his blood alcohol content was .26 — almost four times higher than the legal driving limit.

His suit charges that the bar should have been monitoring the game to make sure players weren’t getting visibly drunk.

* * *

To read the rest from the NY Post, click here.

If you let me play . . .

2012-02-06T12:36:00.001-05:00

My late father-in-law (who lived his adult life surrounded by a wife, two daughters, two granddaughters (although one grandson), and string of female cats) used to say he did not really become an impassioned feminist (although he had always supported women's rights) until he had daughters and the demand that women and girls get fully equal opportunities came home.

Last Wednesday was National Girls and Women in Sports Day, whose celebratory purpose is obvious, particularly in this, the 40th anniversary of Title IX. Yesterday, the University of Miami sponsored a girls' sports clinic, featuring stations with members of various UM women's teams and a short speech by women's basketball coach Katie Meier. This was followed by tickets to a women's basketball game (UM is the defending ACC champion and ranked 7th in the nation). Halftime featured a scrimmage of 3d and 4th grad girls from my daughter's school (which runs a popular girls' basketball league). And every timeout during the game featured announcements of various statistics and information about the benefits girls enjoy from playing sports. And doing it all on the day of the Super Bowl--arguably the culture's most male-centered day of the year--was brilliant counterprogramming. Of course, many of the girls left the game talking about how they were going home to watch the Super Bowl, which I hope reflects the instantiation of a general love of sports in many different forms.

I was very impressed with Meier's remarks, where she talked about how relatively new opportunities are for girls in sports (Meier is about my age, so she was growing up when Title IX was in its relative infancy), how sports have allowed her to have a career she never could have dreamed of when she was a kid, and the benefits that sports have for people in all walks of life. She particularly emphasized something I never thought of--that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives. I also was struck by one statistic that was announced during the game--today, 1-in-3 high-school girls play some sport, compared with 1-in-250 in 1971 (the year before Title IX). Finally, I was amazed by how fast the women players were--I had not seen a women's game live in a long time and the athleticism was surprising. I often have said that women are about 50 years behind men in most sports (i.e., women play a game that looks somewhat like the men's game of 50 years ago); I wonder if it may be less, at least in terms of speed and quickness.

I close with one of the great commercials of all time and the source of most of the statistics about girls' sports participation.^*

^* And a key piece of evidence in my arguments for why it really is difficult to separate commercial from political speech.

Anibal Sanchez Hearing

2012-02-03T16:50:00.003-05:00

Today the Miami Marlins and Anibal Sanchez conducted their hearing, the third of this year. The arbitration panel included Elizabeth Neumeier (a veteran of salary arbitration with a 17-10 record in favor of the teams), James Oldham (3-1 record in favor of the teams after the Niemann decision today), and Gil Vernon. According to my research, Vernon was involved in a total of seven decisions from 1990-1992 when he served as the sole arbitrator. He decided four of the seven in favor of players. His panel decisions are 3-2 in favor of the teams. So, the panel decision in the Sanchez case will break a 6-6 tie for Vernon.

The difference between the parties is $1,100,000. The team offer is $6,900,000 while Sanchez requested $8,000,000.

This is the ninth hearing for the Marlins, and they have lost five of the eight previous decisions. They lost to Charles Johnson in 1998, Mark Redman in 2003, Miguel Cabrera in 2007, Dan Uggla in 2009, and Cody Ross in 2010. The Marlins defeated Vladimir Nunez in 2003, A.J. Burnett in 2003, and Kevin Gregg in 2007.

One historical note might be of interest to Sanchez and his representatives. If you check the list above against how long they stayed with the Marlins after their hearing, the trend is pretty clear. They did not wear a Marlins uniform for very long after the hearing. This is perhaps not that unusual because the decision to not settle and go to a hearing is often an indication that they team is thinking of going in a different direction with respect to that player in the near future.

5th Annual National Baseball Arbitration Competition

2012-02-03T11:56:00.003-05:00

Next week, the Tulane Sports Law Society is hosting the 5th annual National Baseball Arbitration Competition. Forty teams from law schools across the country will compete in the unique and specialized context of MLB's salary arbitration proceedings. The two-day competition begins Thursday, February 9th and culminates on Friday afternoon with the championship round and baseball symposium, both of which are open to the public.

The championship round of the competition will be held on Friday, February 10th from 2:00 to 3:15 pm. Following the competition, from 3:30 to 6:00 pm, there will be a symposium featuring two panel discussions. The first panel discussion - The New CBA: Change and Continuing Peace - will be held from 3:30 to 4:30. The second panel discussion - Hot Topics in Baseball: International Issues, Arbitration Today, and More - will be held from 4:40 to 5:50. The symposium concludes with final remarks by Professor Gabe Feldman.

Both events will be held in the Kendall Cram Lecture Hall of the Lavin-Bernick Center, located on Tulane's uptown campus.

For more information on the event, click here.

The lineup of guest arbitrators and panel members for the competition includes:

Nona Lee, Senior Vice President and General Counsel of the Arizona Diamondbacks.
Jon Fetterolf, Partner, Williams & Connolly LLP in Washington D.C.
Larry Silverman, former Senior Vice President and General Counsel, Pittsburgh Pirates.
Darren Heitner, Attorney, Wolfe Law Miami P.A.; Chief Editor, SportsAgentBlog.com.
Jorge Arangure Jr., Senior Writer, ESPN The Magazine.
Marc Kligman, Baseball Agent, Total Care Sports Management.
Bryan Minniti, Assistant GM of the Washington Nationals.
Steven Fehr, Special Counsel to the MLBPA.
Scott Shapiro, Agent at Praver Shapiro Sports Management.
Jay Reisinger, Partner at Farrell & Reisinger, LL
Clark Griffith, Attorney; AAA Arbitrator; former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties.

Arbitration Hearings Have Started

2012-02-02T16:49:00.002-05:00

The Washington Nationals beat John Lannan yesterday in the first arbitration hearing of 2012. The Nationals have now won 6 of their 8 hearings since 2006. The panel consisted of Robert Herzog (team wins - 3, player wins - 2), Elizabeth Neumeier (team wins - 17, player wins - 10), and first-time baseball arbitrator John Skonier.

Today the Tampa Bay Rays went to a hearing with Jeff Niemann. The Rays have won all five of their previous hearings. The arbitration panel included two first-time baseball arbitrators - Howard Edelman and Mark Irvings. The third panel member was James Oldham (previous panel record - team wins 2, player wins - 1).

The research that I used for the information above is now posted on a website that is still being built. You can find it by going to my Notre Dame webpage and clicking on the link under my picture.

Ed Edmonds

Villanova Law Symposium: Moneyball's Impact on Business and Sports

2012-02-01T15:00:00.001-05:00

This looks fun and timely:

I wanted share news with you about an upcoming event at the Villanova University School of Law – a dialogue that will bring together some of the biggest names in baseball during arguably the most unique Hot Stove Major League Baseball has ever seen.

On Feb. 10, Billy Beane will be on-campus to speak as part of an all-star sports law symposium entitled “Moneyball’s Impact on Business and Sports.” Joining Beane for the discussion will be Jeffrey S. Moorad VSL ’81, vice chairman and CEO of the San Diego Padres; Omar Minaya, senior vice president of baseball operations for the Padres; and Phil Griffin, president of MSNBC. Former Pennsylvania Governor Edward G. Rendell VSL ’68, will serve as the moderator.

At a time when athletes like Albert Pujols and Prince Fielder command budget-busting contracts, low payroll teams like the Tampa Bay Rays and others continue to defy expectations by fielding highly competitive and successful teams using sabermetrics-based analysis. Panelists Moorad, Beane, Minaya and Griffin will analyze the impact of “Moneyball” and the variety of ways it has changed the face of sports from player contracts to media markets and competitive balance.

The press release about the symposium can be found here. The symposium will also be streamed on the VSL website.

Examining pros and cons of NFL clean zones as lawsuit nears trial

2012-01-31T16:18:00.004-05:00

I have a new SI column on the Super Bowl and the controversial concept of "clean zones", which grant the NFL legal rights to control commercial activity in streets around the Super Bowl. Here's an excerpt:

* * *

Clean zones raise a bevy of concerns.

For one, clean zones unabashedly limit competition when businesses are denied permission from the league or city. A decrease in competition implicates two core worries of antitrust law: fewer choices and higher prices for consumers. So perhaps instead of two dozen T-shirt street vendors around Lucas Oil Stadium, the NFL only grants permission to a handful. Although they would still compete with vendors of other items, the licensed vendors might charge more and offer less variety.

Second, clean zones restrict commercial speech, meaning speech that solicits a commercial transaction, such as when a company advertises or promotes a product. To be sure, commercial speech is accorded much less protection under the law than political speech. While the First Amendment aggressively protects one's right to express personal opinions from government suppression, a government, such as the City of Indianapolis, can readily limit commercial speech that is deceptive and misleading.

* * *

Eric Williams v. NFL: A Clean Zone Test Case

Last year anti-bullying advocate Eric Williams teamed up with Best Buy on what seemed like a promising idea: Williams would park his bus in Best Buy's parking lot near Cowboys Stadium between Feb. 4 and Feb. 6 and host a John Madden video game tournament. Williams would charge participants of the tournament, which would teach children about how to detect and stop bullying.

The tournament never happened.

Arlington police and code enforcement officers asked Williams if he had a permit to be there. He did not and saw no reason why he should. After all, his bus was on Best Buy's private property, with the store's express invitation. The security officers nonetheless insisted that Williams move the bus, since it was a commercial operation located within a clean zone ordinance.

To read the rest, click here.

Social Media and Intercollegiate Athletics

2012-01-30T12:00:00.000-05:00

The inaugural issue of the Mississippi ("Ole Miss") Sports Law Review is now available. You can view it online here. The presentation that we had in Oxford this past fall was a great event, and now we have the law review available to compliment the presentation on social media and intercollegiate athletics. The issue is ordered as follows:

Timothy Liam Epstein - Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation

Jerry Parkinson – Impact of Social Media on NCAA Infractions Cases
Mary Margaret “Meg” Penrose – Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media

John T. Wendt & Peter C. Young – Reputational Risk and Social Media

Gould on the 2011 NBA Lockout

2012-01-25T14:36:00.003-05:00

Stanford Law Review Online has published an essay by William Gould on the 2011 NBA Lockout. Gould is a former chair of the NLRB and a leading scholar and advocate on sports-and-labor issues, (H/T: Concurring Opinions). Worth a read.

2012 MIT Sloan Sports Analytics Conference

2012-01-19T22:26:00.004-05:00

I'm thrilled to be joining Daryl Morey, Jessica Gelman, Gary Bettman, Scott Boras, Mark Cuban, Brian Burke, Adam Silver, Bill James and many others as a speaker at this year's MIT Sloan Sports Analytics Conference, which will be held on March 2 and 3. In my view, it's hands-down the best sports business and sports law event of the year.

Here are this year's list of speakers.

The following topics will be discussed:

Art & Analytics of Negotiation

Baseball Analytics

Basketball Analytics

Cuban one-on-one with Simmons

Fanalytics

Football Analytics

Franchises in Transition

Media Rights: Comparing Strategies of Leagues and Media Entities

Motorsports Analytics

Soccer Analytics

The Commish: The Role of the Modern Commissioner in Sports

Ticketing Analytics

Association for Conflict Resolution to host sports law panel next Wedesday Jan. 25

2012-01-17T21:40:00.002-05:00

For our Chicago-based readers, looks like a great panel coming up next Wednesday:

* * *

The Association for Conflict Resolution – Chicago Chapter

Presents

Dispute Resolution in the Sports World

Come join ACR-Chicago for an evening with three experts on Sports Alternative Dispute Resolution! You will learn more about ADR in the sports world and the various alternative dispute mechanisms utilized in the sports industry: arbitration, mediation, conciliation, mini-trials and ombudsmen. The panelists will discuss how these processes have been used in recent years (for example, mediation in the NFL and NBA 2011 lockouts). The panel will also focus on an introduction to Olympic arbitrations, and life as a sports arbitrator. It promises to be an interesting and engaging program!

When: Wednesday, January 25, 2012
6:00-6:30pm Reception and Sign-in
6:30-8:00pm Program
8:00-8:30pm Networking

Where: The John Marshall Law School
315 S. Plymouth Court, Chicago, IL

Cost: Free to ACR-Chicago Members and The John Marshall Law
School; $20.00 for non-members (new or renewal memberships
accepted at door)

Speakers on the Sports ADR Panel will Include:

Matt Mitten, Professor of Law; Director, National Sports Law Institute and LL.M. in Sports Law Program for Foreign Lawyers, Marquette University Law School.

Cari A. Stern, Chapman and Cutler LLP. Adjunct Professor of Sports Law at The John Marshall Law School

Daniel Gandert, Clinical Instructor, Program on Negotiation and Mediation, Northwestern University School of Law.

Many thanks to The John Marshall Law School for hosting this Program

Please RSVP by January 20, 2012 to Jennifer DeGregorio
by email at info@acrchicago.org or at 312-458-0984

The Association for Conflict Resolution – Chicago Chapter
is an alternative dispute resolution (ADR) umbrella organization dedicated to resolving disputes.
Visit our website at www.acrchicago.org

University of Oregon School of Law Sports Law Symposium on Friday Jan. 27

2012-01-17T11:18:00.001-05:00

Rick Karcher, Maureen Weston, Woodie Dixon and other panelists will participate in what looks to be an excellent sports and entertainment law symposium at the University of Oregon School of Law (Portland campus) next Friday. It is hosted by the law school's sports and entertainment law forum.

Topics include:

Women in Sports and Entertainment
The number of women enrolled in law school and working in the legal field has risen to rival men in the last decade with women even making up the majority in some schools and cities. However, sports and entertainment and their corresponding legal markets continue to be male-dominated industries. This panel will address both the legal and practical issues of women in sports and entertainment, including the function of Title IX and its continuing legacy, differences in media and networking between men and women athletes and entertainers, methods of contract negotiation in women’s sports, and how to break into the industry without making it all about gender. This panel will also feature a five-minute clip from Ellen Devlin’s film documenting the history of the University of Oregon’s women’s track program and the influences of Title IX on the different generations of female athletes.

The Rise of the Agent
As anyone familiar with sports knows, agents are now ubiquitous. An agent is a representative of the athlete, and in recent years, the number of agents has risen significantly. Now it seems as if there are as many agents in the business as there are athletes. As is often the case with those in the legal profession, an agent’s job is mostly unglamorous. Even down-and-out Jerry Maguire of pop-culture fame, manages some semblance of high class, as a jet-setting friend and confidante of the stars. Yet, for most agents, this is far from the truth. Whether it is the high stress, high stakes world of superstar contract negotiations between the Scott Borases of the agent world, or the increasingly popular agent-on-the-side approach, an agent is many things. This panel will focus primarily on the agent as an entrepreneurial figure, a power player in the decision making process in the industry, and the agent as a day-to-day representative of his client’s interests.

The Changing Face of the NCAA
With the college football bowl season just finishing, and the madness that is the college basketball’s final four on the horizon, it is an appropriate time to evaluate what has happened to college sports. Gone are the days where a school’s academic reputation is more interesting than its athletic. Gone are the days of a few clubs meeting on the muddy football field in front of a handful of local fans. Gone are the days of the amateur ideal. Whether we think the changes in interest, emphasis, and allocation of resources are good or bad are immaterial. Change has occurred: the NCAA basketball postseason championship is a billion-dollar event, bowl games are glittering multi-million dollar prizes that await teams and conferences at the end of the college football season, and college venues are becoming as elaborate and expensive as professional ones. This panel of experts will talk about the changing landscape of the NCAA conferences, the legal and practical issued posed by the growing revenue generated by college sports, and the eroding idea of the amateur athlete.

For more information, click here.

Brian Porto's new book: The Supreme Court and the NCAA

2012-01-16T11:24:00.000-05:00

Vermont Law School Professor and Sports Law Institute Deputy Director Brian Porto's new book, "The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports," was recently published by the University of Michigan Press.

Two U.S. Supreme Court decisions, NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), have shaped college sports by permitting the emergence of a supercharged commercial enterprise with high financial stakes for institutions and individuals, while failing to guarantee adequate procedural protections for persons charged with wrongdoing within that enterprise.

Porto examines the conditions that led to the cases, the reasoning behind the justices' rulings and the consequences of those rulings.

Arguing that commercialized college sports should be compatible with the goals of higher education and fair to all participants, Porto suggests that the remedy is a federal statute. His proposed College Sports Legal Reform Act would grant the NCAA a limited "educational exemption" from the antitrust laws, enabling it to enhance academic opportunities for athletes. The Act would also afford greater procedural protections to accused parties in NCAA disciplinary proceedings.

Porto's prescription for reform in college sports makes a significant contribution to the debate about how best to address perennial problems in college sports such as cost containment, access to a meaningful education for athletes and fairness in rule enforcement.

OSU Deja Vu: Legal Lessons from the OSU Basketball Tragedies

2012-01-07T13:00:00.001-05:00

The National Transportation Safety Board (“NTSB”) has released its Preliminary Report regarding the November 18, 2011 airplane crash that killed Oklahoma State University (“OSU”) Women’s Basketball coach Kurt Budke and his assistant coach, Miranda Serna. The Piper Cherokee 180 was owned and flown by former Oklahoma State Senator Olin Branstetter who, along with his wife, was also killed in the crash. News reports indicate that the four were flying from OSU to Little Rock, Arkansas for a recruiting trip.

Unbelievably, this was the second tragic plane crash to afflict OSU within a decade. In 2001, an airplane chartered for the OSU Men’s Basketball team crashed in Colorado, killing ten, including two players. The NTSB determined that the 2001 crash was caused by a loss of a.c. electrical power that was not adequately managed by the pilot. Spurred by the loss to its athletic community, OSU revised its team travel policy, and the NTSB held up OSU’s revised post-accident team travel policy as a model for other sports organizations. This policy is largely articulated in a January 21, 2003 letter from the NTSB to Dr. Myles Brand, former NCAA President. It is not known whether OSU’s current travel policy was applicable to the flight that killed coaches Budke and Serna.

The NTSB’s Preliminary Report on the most recent crash, as is typical for preliminary reports, simply addresses “who, what, when, and where.” Over the next several months, the NTSB, along with any manufacturers or others it designates as a party, will conduct a comprehensive investigation into the “how.” Oftentimes this investigation involves, among other things, wreckage and component part inspections and testing, analysis of aircraft logbooks and maintenance records, analysis of the pilot’s experience and qualifications, and analysis of radar and other data pertaining to the accident flight. The investigation will culminate in the NTSB’s probable cause finding, which is the NTSB’s determination as to the probable cause or causes of and contributing factors to the accident.

The NTSB investigates accidents and issues probable cause findings to promote safe transportation, not to help litigants win lawsuits; thus, there are federal regulations that govern the admissibility of NTSB findings and the type and amount of discovery a litigant can conduct with respect to the NTSB. These rules often vex courts presiding over air crash litigation. It is evident, even at this early stage, that many other issues that commonly arise in air crash litigation could be implicated in any lawsuit regarding the recent OSU crash. For example, the question of forum often takes center stage early on in airplane crash lawsuits. In this case, the individuals killed were from Oklahoma, but the plane crashed during a recruiting trip to Arkansas, so a court may have to sort out the appropriate and most convenient forum, and determine which state’s law to apply. The possibly varied residences of any defendants could further complicate this issue. Another possible legal issue is the applicability of the General Aviation Revitalization Act’s 18-year statute of repose which protects manufacturers. Federal Aviation Administration ("FAA") records reveal that the Piper was manufactured in 1964, so product liability lawsuits may be barred, though this is a highly fact-intensive issue that also implicates volumes of precedent. Also, few airplane crash claims are resolved without accompanying insurance coverage disputes, and the factual circumstances surrounding the recent OSU crash lend themselves to possible complex coverage issues.

Regardless of the cause of the recent OSU accident, it underscores the importance of air travel to collegiate sports teams. Colleges and universities are often located in areas not well-served by commercial aviation, so staff and athletes may rely on private aircraft transportation on recruiting trips or away games. Whether a college or university uses its own flight department, a private charter operator, or donated airplanes and crew can have far-reaching and difficult to foresee consequences in the wake of a crash. Shortly before this tragic crash, in light of the KHL hockey team crash, I published an article in Sports Litigation Alert with fellow partners from the Aerospace Group at my firm discussing airplane crashes and sports teams; we discussed prior accidents, common issues in aviation lawsuits, and the importance of safe airplane travel policies. This unfortunate accident should serve as a stark reminder to sports organizations to ensure that their travel policies are current with respect to aviation safety developments, and that their policies are rigorously adhered to. Sports organizations should also watch closely for the NTSB’s findings and any safety recommendations it may make, and review their policies accordingly.

Hat tip to my partner, Michael McGrory, for his work on this piece.

2012-01-06T21:16:00.002-05:00

The NHL says it will postpone its plans for realignment because the players association wouldn't approve it in time for next year's schedules. (The union has taken to Twitter to deny it balked at the plan.)

This is tied to travel, which is subject to collective bargaining, but only indirectly. So it's not clear to me that this is something the union should have any say over. The league says it will pursue all avenues to preserve its rights, but it says it's too late for next season.

Edward Zelinsky on "Albert Pujols, Occupy Wall Street, and the Buffett Rule"

2012-01-04T14:07:00.001-05:00

Professor Edward Zelinsky, a distinguished tax law expert at Cardozo Law School and author of The Origins of the Ownership Society, has a thoughtful and provocative Oxford University Press piece on Albert Pujols and his 10-year, $254 million contract. Zelinsky argues that Pujols indeed deserves what he is being paid and that he is not under-taxed. Here is an excerpt:

* * *

Pujols is not a poorly-performing CEO whose salary has been inflated by a compliant compensation consultant and ratified by a passive board of directors the CEO himself has selected. Pujols’ salary was established in a transparent and open marketplace by purchasers seeking his services on an arms-length basis against other bidders, baseball teams trying to win more games. Pujols has earned the rewards of the marketplace in a truly competitive fashion.

Pujols joined the proverbial 1% honorably, through hard work and professional success. I suspect that many of the folks who identify with Occupy Wall Street will disagree, but Pujols should not be lumped together with overpaid, underperforming CEOs – of which there are many.

* * *

To read the rest, click here. It's a good read.

Reflections on the NFL and NBA Lockouts

2012-01-03T09:00:00.003-05:00

I recently posted the working draft of an essay reflecting on the recent NFL and NBA lockouts to SSRN, and thought that it might be of interest to some readers. The abstract for the essay is below:

This essay analyzes the National Football League (“NFL”) and National Basketball Association (“NBA”) lockouts of 2011, focusing in particular on the role union dissolution played in both work stoppages. Although the existing academic literature had generally concluded that players’ unions in the four major U.S. professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in the face of lockouts by ownership. This essay provides an explanation for why the pre-existing academic literature underestimated the likelihood that players would disband their unions during a work stoppage, and considers what role union dissolution is likely to play in future professional sports labor disputes.

The paper can be downloaded here. Any comments - critical or otherwise - would be much appreciated.

The Cross-Town Classic: ChiSox versus Cubs on Taxes and Renovations

2012-01-02T17:00:00.002-05:00

The Illinois Sports Facilities Authority (“IFSA”) was created in 1987 by the Illinois General Assembly to create and reconstruct sports stadiums for professional teams in Illinois. The IFSA owns and operates U.S. Cellular Field and receives annual debt payments for bonds related to renovations of the stadium. In 2001, the IFSA also contributed to the renovations made to Soldier Field. The IFSA has relied on hotel tax revenue from the state to pay back these payments, but this past year it was forced to turn to a different source of revenue to pay back this debt: Chicago taxpayer money.

Prior to 2011, the Illinois government would provide an advance to the IFSA so it could pay for any work conducted on the stadiums. The IFSA would later pay back those advances with hotel tax revenues. In 2010, though, hotel tax revenue was deficient by over $1.1 million, so the state turned to Chicago’s portion of state income tax to pay the bill. This is the first time that tax revenue fell short since 2001, which is when a new law was enacted that allowed the IFSA to issue bonds for renovations to Solider Field.

Besides receiving scrutiny over this incident, the IFSA has also been criticized for the new restaurant it built right outside U.S. Cellular Field. Taxpayers, again, ultimately paid for the expenses for this restaurant. Furthermore, the IFSA allowed the White Sox to retain all the restaurant profits.

Unfortunately, for the National League team across town, similar benefits from public funding do not exist. There have been recent discussions about renovating privately-owned Wrigley Field, one of the oldest stadiums in American professional sports. Rumors swirled about who would finance the possible restoration. In 2010, Chicago Cubs owner Tom Ricketts developed a complex plan which ultimately asked for $200 million in public money, specifically additional ticket taxes, for the restorations. In September of this past year, sources stated that Mayor Rahm Emanuel was willing to contribute all $200 million using the City’s money. All of these rumors were put to rest, though, when on November 2, 2011, Emanuel announced that the proposed plan was not something he was going to incorporate into the 2012 budget, and the City would not be contributing extra tax money for construction on Wrigley Field.

One obstacle that the Cubs have to overcome in order to raise more money for renovations is getting its restrictive landmark status lifted. If the Cubs were to obtain permission from the City to lift Wrigley’s restrictive landmark status, as the City did for Solider Field so renovations could be done to it in 2001, then not only would construction on Wrigley be allowed, but the Cubs could possibly generate more revenue. Outside of additional seating and expansion of luxury boxes that would surely take place in renovations, removal of the landmark status could allow additional advertisement signage at Wrigley that would generate more revenue to contribute towards the proposed renovations.

With a government entity “overseeing and funding” the renovations to U.S. Cellular Field, which have occurred recently and often, and with Wrigley Field enduring so many restrictions, conspiracy theorists (i.e. Cubs fans) suspect that The Cell is being favored over the Friendly Confines. Keep in mind, though, that the Cubs are one of only five Major League Baseball teams that play in a privately-owned stadium, and do not directly see benefits like renovation monies returned from payment of amusement taxes (12% combined City and County taxes per ticket). Further, while Wrigley’s unique historical significance (only two years junior to Fenway Park) and neighborhood setting certainly brings fans and tourists through the turnstiles, this bears some consequences as well. From objections of the slope of bleachers to not impede rooftop club neighbors to night game restrictions (Wrigley is restricted to a maximum of thirty night games, twenty-four fewer than the MLB average), Wrigley is losing out on direct monies from expansion of seating as well as prime-time television appearances.

If Wrigley Field was sold to the City, it may be renovated, but there is a possibility it may not be done in the way that Cubs’ owners envision. However, as it stands now, Chicago taxpayers are left to pay off the renovations done to U.S. Cellular Field, and the Cubs’ organization is left to explore different financial avenues in order to support its restoration aspirations, such as privately purchasing adjacent property to bring more of the Wrigleyville dollars to the Cubs.

The Sports Law Journal Seeks submissions

2012-01-02T15:00:00.000-05:00

The Sports Law Journal is interested in submissions - for more information, e-mail its Editor-in-Chief, Alex Tilton, at atilton1[at]tulane.edu.

Utah AG planning to sue BCS in coming weeks: What to Expect

2012-01-02T01:37:00.000-05:00

I speak with Robert Gehrke of the Salt Lake Tribune about what to expect should Utah AG Mark Shurtleff sue the BCS, as he says he plans on doing within the next month or so. For additional commentary on the BCS, check out our past coverage.

Panel on The Impact of Sports Collective Bargaining on Labor Relations in Society

2011-12-29T09:00:00.001-05:00

While perusing the program for the upcoming American Economic Association annual meeting (Jan. 6-8) in Chicago, I noticed an interesting panel devoted to sports collective bargaining. Details are below:

The Impact of Sports Collective Bargaining on Labor Relations in Society (Workshop) (J1) (Panel Discussion)

Panel Moderator: Gabriel Gershenfeld, Cleveland Indians, and Michael Wasser (American Rights at Work)

DeMaurice Smith (NFL Players Association) Sports Collective Bargaining: Sports Labor Perspective

Rob Manfred (Major League Baseball) Sports Collective Bargaining: Sports Management Perspective

Arlene Holt-Baker (AFL-CIO) Impact of Sports Collective Bargaining on Labor in America

Martin Mulloy (Ford Motor Company) Impact of Sports Collective Bargaining on Management in America

New Sports Illustrated column: Floyd Mayweather, Jr. sentenced to 90 days in jail

2011-12-24T13:39:00.000-05:00

Here's my new SI.com column on Floyd Mayweather pleading guilty to reduced charges for battering his ex-girlfriend. He'll get 90 days in jail; originally was facing 34 years in prison.

Statutes of limitations, child sexual assault, and asking the wrong question

2011-12-21T22:56:00.000-05:00

Child sexual assault has become the hot topic in the sports-and-law overlap, with allegations against several college football and basketball coaches, AAU officials, and most recently, a Hall of Fame sports writer Bill Conlin of the Philadelphia Daily News. One unifying theme is that many of these cases cannot be prosecuted because the statute of limitations has run on most of these cases (for example, Conlin's alleged assaults all occurred in the 1970s). So a frequently asked question--I was asked it in a radio interview last week and Slate's Jessica Grose raises it again--is why we have statutes of limitations for child sexual assault cases.

But I think that is the wrong question to ask.

On one hand, the answer is easy. We have statutes of limitations in sexual abuse cases for the same reasons we have statutes of limitations for every other crime (except murder, more on that below): Evidence and people disappear and memories fade or change or become distorted, thus we worry about the reliability of any result based on such stale evidence. Jessica interviews my former colleague Aya Gruber (now at Colorado), who argues that this is especially true in a case such as child sexual assault (and perhaps all sexual assault), where the key--and sometimes only--evidence is the victim's testimony. We also believe in a right to repose, or "rest easy," that at some point a person should be able to no longer fear prosecution and get on with his life and his affairs.

Murder long has not been subject to statutes of limitations because society has made a value judgment--murder is the most heinous crime, the ultimate criminal wrong, and that heinousness outweighs the procedural concerns for unreliable judgments and the substantive concerns for alleged perpetrator's right to repose. A good argument can be made that child sexual assault is as or more heinous than murder,^* thus we should strike the same balance. And that is what many states have done, eliminating limitations (as some states have done) or making them extraordinarily long and/or tolling them until the child reaches majority. For example, Pennsylvania now can prosecute a case until the child victim turns 50, meaning a limitations period of anywhere from 33 to 50 years, depending on the child's age at the time of the assault. An even better argument can be made that the old limitations periods in effect in the '70s, '80s, and '90s were woefully short (Pennsylvania was 5 years for anything involving penetration and 2 years for inappropriate touching) and based on a fundamental misunderstanding of the nature of the crime and the psychology of how child victims respond.^**

But thinking about whether there should be a statute of limitations for child sexual assault, or how long it should be, is the wrong question in considering the prosecution or non-prosecution of the current cases of interest. We are stuck with the reality that there is a statute of limitations for these crimes, that at the time of most of most of these crimes that limitations period was really short, and therefore the statutes have run on these cases and prosecution is barred. In 2003, SCOTUS held in Stogner v. California that the prohibition on ex post facto laws prohibited states from applying newly lenghtened limitations periods to crimes that occurred under an older limitations and that now are time-barred under that former limitations period. The 5-4 majority placed an extended limitations period in the second category, as a law that makes a crime greater than it was at the time of its commission. Most states statutorily avoid any possible ex post facto concerns by only applying these newly extended periods prospectively. Thus, what prevents prosecution of Sandusky, Conlin, et al., is not the statute of limiattions as much as the Constitution's prohibition on ex post facto laws.

^* I distinctly remember a class session in Stephen Presser's American Legal History at Northwestern, in which we debated whether adult rape was more heinous than murder, with a majority of the class believing it was, because the victim lives with the effects of the crime forever. We can multiply that for child victims.

^** Although what is interesting about Conlin's case is that many of the victims went to their parents and some of the parents confronted Conlin, who allegedly cried when confronted. But no one, not even the adults, ever went to the police.

New Sports Illustrated column: What Sam Hurd's arrest means for the NFL

2011-12-16T14:10:00.001-05:00

I have a new column for SI.com on Sam Hurd's arrest on drug charges and his alleged list of clients, who reportedly include NFL players. Hope you can check it out.

Update: on Saturday morning, I was interviewed on CBS The Early Show. CBS News anchor Russ Mitchell asked me about Sam Hurd's drug arrest, the alleged list of list of NFL players he sold to, and what it all means for the NFL.

Introducing the Great Lakes Sports and Entertainment Law Academy

2011-12-15T11:50:00.003-05:00

Congrats to Peter Carfagna and Craig Nard, among others, for establishing the Great lakes Sports and Entertainment Law Academy, a summer program in Cleveland for law students interested in sports and entertainment law. It looks to be a terrific program. Here are the details:

Great Lakes Sports and Entertainment Law Academy
May 14 – June 3, 2012

A joint program of: Center for Law, Technology, and the Arts, Case Western Reserve University School of Law and Cleveland-Marshall College of Law, Cleveland State University

The law schools of Case Western Reserve University and Cleveland State University are pleased to introduce the Great Lakes Sports & Entertainment Law Academy, an exciting new summer program for law school students that will begin in May of 2012. The Academy will be located in Cleveland, Ohio, home to three professional sports franchises and thriving arts and musical institutions. The product of a unique collaboration between the law schools of Cleveland State University and Case Western University, the Academy has partnered with several local and national sports and entertainment franchises, as well as local educational and cultural institutions, to offer students an intense, three-week, interdisciplinary classroom and experiential learning opportunity.

A special feature of the program is the chance for students to secure a limited number of externships at various high-profile sports and entertainment organizations.

Following the three weeks of coursework, up to fifteen students will have the opportunity to participate in highly selective externships. The externships are for three credits and last for nine weeks (approximately 20 hours per week). The anticipated externships, which begin on June 4, 2012, are sponsored by various high-profile sports and entertainment institutions, including:

Cleveland Browns;
SPIRE Institute;
Lake County Captains;
Vuguru Studios;
Horizon League;
Mid-American Conference;
Cleveland State University/Nelligan Sports Marketing Agency;
Greater Cleveland Film Commission

Application deadline: February 15, 2012
Externship application/writing deadline: February 15, 2012

Courses at the 2012 Academy
Courses take place at Cleveland-Marshall College of Law, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115-2214

Representing the Professional Athlete
Negotiation Strategies in Sports Management
Representing the Musical Artist
Entertainment Law: Film and Television

Faculty

Peter A. Carfagna, Co-Director of the Academy, is Chairman/CEO of Magis, LLC, a privately owned sports marketing, management and investment company, including family ownership of the Lake County Captains, Cleveland Indians Class A Affiliate. He is a professor at Harvard Law, Cleveland Marshall College of Law, and Case Western Reserve University School of Law.

Mark Avsec is partner and Vice-Chair of the Intellectual Property Practice Group at Benesch, Friedlander, Coplan & Aronoff, LLP. Before becoming a lawyer, Professor Avsec earned a living as a studio musician, producer and award-winning songwriter.

David Shall is Head of Business Operations & General Counsel at Vuguru LLC, a pioneer in multi-platform programming and content.

All students who satisfactorily complete six credit hours of coursework will receive a certificate of completion. Up to 15 students will be selected for an externship through a separate application process, a competitive writing submission in response to a Sports Law Problem, available at this web address beginning December 15, 2011.

For further information:
Professor Craig A. Nard, Co-Director, Great Lakes Sports and Entertainment Law Academy
Phone: (216) 368-6348
E-mail: craig.nard@case.edu

New Sports Illustrated column: What is Jerry Sandusky's Lawyer Doing?

2011-12-13T23:27:00.000-05:00

In a new column for SI.com, I raise some questions of Joe Amendola's legal strategy in representing Jerry Sandusky.

Show-Me Sports Law

2011-12-13T17:45:00.000-05:00

Guest post from Dr. Anastasios Kaburakis, a professor at the John Cook School of Business, Saint Louis University:

After St. Louis’ beloved Cardinals lost Albert Pujols to the L.A. Angels last week, there was quite a discussion on how a small market like St. Louis can compete in intense, financially challenging times, and indeed in a cut-throat industry like sports. St. Louis ranks 18^th in metropolitan area size
in the U.S.

What is most interesting for sports law aficionados, however, is that St. Louis is developing into a hub for sports law. It was during the same fateful week of Dec. 5 that one of the two biggest law firms in town, Thompson Coburn, announced a major addition, the immediate past President of the Sports Lawyers Association, Bob Wallace, veteran NFL executive and former St. Louis Rams’ general counsel, who will lead a new sports law practice group. This follows the other major St. Louis firm, Bryan Cave, announcing earlier this summer the commencement of its sports law practice group, led by Ryan Davis. Both firms followed suit along the path of Stinson LLP and Bob Lattinville, who together with Gary Uberstine formed a national partnership, Premier Stinson Sports, specializing in elite coaches’ representation. Of course, when representation is discussed, St. Louis is home to CAA Football, Jim Steiner, Ben Dogra, and Tom Condon, who compete for the top-level football talent with cross-town rival Harold Lewis and the National Sports Agency.

Further, for sports law gurus, one needs to keep in mind that St. Louis-based Harness, Dickey, and Pierce, a top-5 global Intellectual Property firm, has been attending to sports IP issues for years, receiving international attention and fantasy sports fans’ adoration due to the successful CBC v MLBAM case before the Eighth Circuit, led by Super IP litigator Rudy Telscher.

Add to those national players the several pockets of key sport finance consultation in town, as well as a focused sport law research group including international academics and practitioners collaborating with the Saint Louis University John Cook School of Business sports business program, and one observes that the Gateway City may well be the best-kept secret in international sports law.

Here’s hoping that St. Louis’ Law Schools also recognize the tremendous opportunities for young practitioners, as well as the further involvement our fine academic institutions may have through their meaningful contributions to the industry (not to mention the patent prospects for landing external funding through such service and collaborative initiatives with the various key industry players in town). Conceivably, St. Louis may become an international destination for sport law studies, and the promising challenge is there for a law school to be a first entrant in town, joining the 12 or so other law school-housed sport law centers, institutes, clinics, and certificate programs around the U.S. already providing valuable service to law students, faculty, practitioners, and the entire sports industry.

Sports Wagering Update

2011-12-11T14:00:00.000-05:00

I recently had a chance to listen in on an iGaming Business-sponsored webinar about developments in New Jersey and more general topics related to the legality of sports wagering in the USA. Joe Brennan of iMEGA was the featured speaker. The recent state-wide vote in New Jersey has garnered a lot of attention. However, a quick perusal of my research file devoted to this issue revealed three other recent developments that deserve mention.

1. Earlier this month, prosecutors in Massachusetts were able to secure the first conviction under the Unlawful Internet Gambling Enforcement Act of 2006. The person convicted was previously affiliated with an offshore sports book. The official press release can be found here.

2. The Las Vegas Review-Journal is reporting that authorities have indicted an individual in a probe related to the false reporting of information. The individual is alleged to have bet on behalf of ACME Group Trading, an entity connected to prominent sports bettor Billy Walters. Nevada law prohibits the use of "runners" who place bets on the behalf of others. The 60 Minutes profile of Billy Walters can be found here.

3. Developments in Europe dwarf those in the United States. Given the vast number of cross-border issues inherent in sports gambling, the European Court of Justice (ECJ) has been busy adjudicating a large number of claims. Tassos Kaburakis and I recently collaborated to write a short primer on a handful of important ECJ cases. Our article was recently published in the Journal of Gambling Business and Economics. The abstract is below:

Given its high level of regulation, the gambling industry must be able to react quickly to litigation and resulting change in policy (and enforcement thereof). Using a case study approach, this short paper highlights how the twin issues of policy and litigation have recently impacted the gambling industry in the European Union. Examples focus on recent developments in the EU that outline the relevant contours of the European Court of Justice's jurisprudence, with a special emphasis on the dynamic situation in Greece. These examples shape the ensuing discussion of the future of both the regulation and litigation of the EU's gambling industry.

Dan Markel argues for a sport of hockey without "brutal disabling fights"

2011-12-05T17:37:00.000-05:00

Provocative piece by Howard's PrawfsBlawg colleague and Florida State law professor Dan Markel (who is originally from one of the best hockey cities around, Toronto): The End of Hockey (Fighting).

SEC as solution to ridiculous public stadium financing?

2011-12-05T12:44:00.000-05:00

I am so proud to be a Miami-Dade resident (although not a Marlins fan).

Yale Law School Panel on The Year of the Lockout: "Lockouts and Leverage: Lessons from the NBA and NFL Lockouts and New Collective Bargaining Agreements"

2011-12-05T10:00:00.004-05:00

As the NBA lockout and the 2012 calendar year fade into the night, Yale Law School will be hosting the first panel discussion that takes stock of what has been the Year of The Lockout.

On Monday December 12, the Yale Law and Business Society will host a panel discussion titled "Lockouts and Leverage: Lessons from the NFL and NBA Lockouts and New Collective Bargaining Agreements". The panel will be held from 3 to 4 p.m. and will be open to the public. The NBA and NFL lockouts, the corresponding litigation and the resulting collective bargaining agreements will all be discussed.

I am honored to be joining Professor George Priest -- one of the nation's leading experts on antitrust law -- on the panel. Here is the official announcement:

The Yale Law and Business Society

Presents

Lockouts and Leverage:

Lessons from the NBA and NFL Lockouts and New Collective Bargaining Agreements

* Taking stock of the NBA and NFL lockouts

* Analysis of the legal and business strategies and lessons learned

* Who Won? Who Lost?

* Impact of new collective bargaining agreements - who gains, who loses - and changes in relationship between NFL and NBA players and their respective leagues

* Lingering Issues

Moderator

JIMMY GOLEN
Yale Law School graduate (1999). Reporter for The Associated Press for over 20 years, covering sports in Boston for the world’s largest newsgathering organization since 1995. He has covered five Super Bowls, three Olympics and three World Series, including the Red Sox victories in 2004 and ’07. Previously, he worked for the AP in New York, Minneapolis, Baton Rouge, La., and Buffalo, N.Y.

Panelists

MICHAEL McCANN
Professor of Law and Director of Sports Law Institute, Vermont Law School
On-Air Legal Analyst, NBA TV
Legal Analyst and SI.com Writer, Sports Illustrated

GEORGE PRIEST
Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship, Yale Law School

For additional information, please contact Jonathan Soleimani (Co-Director of Programming, Yale Law & Business Society) at jonathan.soleimani[at]yale.edu

In Memoriam: Robert "Bob" Berry

2011-12-04T21:49:00.001-05:00

Very sad news last week in the sports law world, as former Boston College Law School sports law Professor Bob Berry passed away at 75. Marquette University Law School sports law Professor Matt Mitten shares the following with our readers:

Sports Law Academic World Loses One of Its Heavy Hitters

Bob Berry, a retired Boston College emeritus professor of law who was an internationally recognized expert in sports law, died recently in Florida. During his distinguished academic career, he taught sports law courses at several law schools, including Boston College, Ohio State, and Capital. Bob authored or co-authored many sports law review articles and books, including Sports Law and Regulation: Cases, Materials, and Problems (with Matthew Mitten, Timothy Davis, and Rodney Smith). He was well known for his extensive knowledge of sports law along with his kindness and his sense of humor. Bob was a wonderful friend, mentor, and co-author, whom I was privileged to know. All of us, especially his wife Carole and other members of his family, have suffered a great loss.

Bob is fondly remembered by his friends and fellow sports law professors:

His close friend Bill Gould, Charles A. Beardsley Professor of Law at Stanford and former Chair of the National Labor Relations Board: “I always thought of Bob as the dean of all academic sports lawyers. He developed the first Sports Law course at BC Law in 1972. The world has lost a good, genuine-so genuine-smart guy who was very wise and compassionate. I never had a better or more loyal friend.”

Gary Roberts, Dean & Gerald L. Bepko Professor of Law, Indiana University Robert H. McKinney School of Law in Indianapolis: “Bob was a really good guy who came to be a very good friend. He truly was one of the founders, if not the founder, of our ‘sports law academic’ club.”

Roger Abrams, Richardson Professor of Law, Northeastern University: “Bob certainly was in the Sports Law Hall of Fame and a really nice colleague to all of us.”

Barbara Osborne, Associate Professor, Exercise and Sport Science, University of North Carolina: “My heart aches. As one of Bob's former students I know first-hand what an impact he had.”

Bob’s family has requested that any donations in his memory be made to the Jackie Robinson Foundation, 75 Varick Street, 2nd floor, New York, New York 10013.

Matt Mitten
Professor of Law and Director, National Sports Law Institute and
LL.M. in Sports Law Program for Foreign Lawyers
Marquette University Law School

Transitioning to the NBA: Advocating on Behalf of Student-Athletes for NBA & NCAA Rule Changes

2011-12-01T21:30:00.001-05:00

Back in April I wrote a piece for the Huffington Post that argued against the shorting, by the NCAA, of the evaluation period for men's basketball players. My friends at Harvard Law School's Journal of Sports & Entertainment Law asked me to turn that short piece into a law review article, which I have now done.

While still being fine-tuned for January publication, I have been given permission to share this document now given the debate on the draft eligibility rules between the NBA and NBPA. [I know, they are technically a trade association today.] You can access the document on the SSRN website here.

The abstract reads as follows:

The manner in which college athletes enter the professional market of basketball has significantly deteriorated during the past several decades. The transition from college to the NBA has become more fraught with challenges and misinformation than ever before, a fact likely to lead to a wide range of mistakes by countless student-athletes trying to evaluate whether and when to enter professional basketball.

Highlighting a particular area where student-athletes’ interests are marginalized, this Article calls attention to the challenges that student-athletes in the sport of men’s college basketball face when trying to make a fully informed decision as they evaluate whether or not to enter the NBA draft and forgo remaining college eligibility. Unfortunately this difficult decision period is not unique to men’s basketball, but highlights a broader trend showing that colleges, conferences and the NCAA have done shockingly little to provide guidance and counsel to student-athletes across the country who are navigating the transition from college to the professional leagues.

This Article will address both how we developed the current legal rules governing this environment by reviewing the history of the NBA draft and the NCAA’s role in overseeing college athletes and its definition of amateurism. With this recent trend in mind, this Article will then turn its attention to a recent NCAA rule change that unambiguously illustrates the fact that the best interests of the student-athlete are marginalized, if not ignored, in the process of making the leap from college to the NBA. Finally, to foster dialogue, solutions will be proposed on how to address the hardships college student-athletes face during this transition period.

Among the most meaningful recommendations are:

1. The NBA should adopt draft eligibility rules that declare high school graduates are automatically draft eligible and need not petition or declare their intention for the draft. If a player decides to attend college, NBA rules should require that the player not be draft eligible for two years—after a player’s sophomore year of college.
2. NCAA and NBA rules should permit and encourage potential players to hire an “advisor” to assist during this challenging period.
3. The NCAA and NBA should expand and shift the number of days during which student-athletes may explore their potential as an NBA player while maintaining their college eligibility.
4. The creation of a true “NBA Combine” – similar to the NFL Combine – within the time frame the NCAA permits tryouts that enable all underclassmen to compete and perform in front of NBA personnel.
5. Colleges and universities across the country should invest in Professional Sports Counseling Panels (“PSCPs”) so that student-athletes can get unbiased guidance during this critical period of their lives.
6. The NBA and the NCAA could jointly revise the rules relative to the NBA draft, whereby any student-athlete who declares himself eligible has the ability, if not selected in the first round of the NBA draft and thus guaranteeing himself a contract under the latest CBA, to return to college.
7. Encourage student-athletes to graduate by offering financial incentives at the NBA level for those with additional years in college.

A place for this blog and its EIC

2011-11-30T02:13:00.000-05:00

Slate's weekly sports podcast "Hang Up and Listen" leads off this week with a discussion of the end of the NBA lockout. One of the points of discussion is the failure of the sports media to fully grasp and accurately cover the bargaining process. Not being experienced in how labor and litigation negotiations work, reporters fall for dramatic, tragic, and pessimistic narratives because, to their eyes, the process appears to be failing. They specifically note Bill Simmons' calls for both David Stern and Billy Hunter to be fired for their mismanagement of this process, a sentiment widely shared by fans but not by experienced labor experts (who recognize legal posturing as all part of the negotiation process).

If this assessment is accurate, it presents a good argument for this blog and, in particular, for Mike's work on ESPN and NBA-TV. They provide voice that can report and opine on the legal issues from a real position of experience, avoiding the narrative traps.

Time for Transformative Change in Intercollegiate Athletics

2011-11-29T19:30:00.000-05:00

Well, I've spent the better part of the fall semester thinking and talking about change in intercollegiate athletics. I figured it was time to put my ideas and arguments down on paper and, as such, wrote a brief article, summing up my thoughts and, more importantly, making some recommendations.

The essay was just posted on Huffington Post here.

In sum, I argue that we need to address three key areas: 1) Academics & Integrity, 2) The Interests and Experiences of Student-athletes; and 3) Accountability.

Let me know what you think...and help me improve my proposals.

NBA TV Interview: Remaining Steps

2011-11-28T23:44:00.000-05:00

I joined David Aldridge, Reggie Miller, Dennis Scott and Matt Winer tonight on NBA TV to talk about remaining steps for there to be NBA basketball on December 25.

New Sports Illustrated Inside Report Interview: Legal Fallout of Bernie Fine Scandal

2011-11-28T14:47:00.001-05:00

International Sports Law Review Pandektis

2011-11-28T08:00:00.000-05:00

The most recent issue of the International Sports Law Review Pandektis, an IASL-sponsored journal, has been published. A number of articles caught my eye that Sports Law Blog readers may be interested in. Of particular note is the article published by Stephen Argeris pertaining to the MLB draft, which was presented earlier this year at the MIT Sloan Sports Analytics Conference and last year at the International Sport Law & Business Conference.

The complete table of contents for the most recent issue can be found here.

The NBA Lockout is Over!

2011-11-26T06:01:00.002-05:00

I was on NBA TV this morning (live, at 4 a.m.) talking about next steps. Glad to have games back!

Update 4 p.m. Saturday: I have a new column for SI: NBA players, owners may still run into problems with tentative deal

NBA and Players Talk Litigation Settlement: Will it lead to new CBA?

2011-11-25T18:05:00.000-05:00

I was on NBA TV this afternoon to talk about owners and players having litigation settlement talks, how they can convert those talks into a new CBA, and why there is reason to be optimistic.

Could David Boies be the X Factor for players and help them reach a deal with NBA that Billy Hunter, Derick Fisher and Jeffrey Kessler couldn't?

More known for his litigation skills than settlement skills, this could become Boies's finest hour.

Sports as protected expression?

2011-11-24T11:59:00.000-05:00

For all my writing on fan speech, this is a place I never thought to go: Last week, UFC and several UFC fighters have challenged New York's ban on MMA exhibitions and profiting from those exhibitions on, among other things, First Amendment grounds. The argument is that the state is targeting the message of MMA through a commercial ban, even though the activities themselves are lawful in a gym. The plaintiffs are represented by Barry Friedman, a great con law scholar at NYU (and, I am guessing, an MMA fan).

Friedman has tried to argue that MMA is mixed martial arts, so is an activity that is more uniquely performative than other sports (more akin to dancing than basketball), so it does not necessarily follow that all sports are expressive. Or maybe all sports are expressive, with whatever legal issues that may create.

As I said, I had never thought to go here. But if sport is expressive, then I believe my arguments that watching and cheering for sports gains added strength.

Real-Life Fantasy Sports Law: Enter the Lobbyists

2011-11-22T21:00:00.000-05:00

Back in August, I blogged about the proliferation of the fantasy sports industry and whether certain fantasy sports games might violate state gambling laws. I also posted a draft of my newest law review article: "A Short Treatise on Fantasy Sports and the Law."

Since then, the Fantasy Sports Trade Association ("FSTA") has announced the hiring of Travis McCoy, a former aid to Senator John Boehner (R-Ohio), to serve as its first official lobbyist. According to USA Today, the FSTA "still is deciding what states it will target first."

The FSTA's hiring of a lobbyist is noteworthy on several levels. First, it signals an acknowledgement by the industry that certain state gambling laws are unfavorable to fantasy sports. In addition, it shows the early stages of collective action within the fantasy sports industry.

It will be interesting to see if the FSTA’s lobbying efforts will target only state gambling laws that disallow fantasy sports leagues, or if they will also target state laws that limit fantasy websites' administrative fees. For example, Montana law currently limits fantasy sports websites to charging 15% in administrative fees. This limit is probably unpopular with fantasy sports businesses. However, it is intended to protect fantasy participants.

NBA Players drop lawsuit in California - focus on lawsuit in Minnesota

2011-11-21T21:04:00.000-05:00

A little bit of litigation news tonight. I discuss it on NBA TV.

Also, it was announced that the Honorable U.S. District Judge Patrick J. Schiltz will be the judge for Carmelo Anthony et al. v. NBA. Schiltz, a graduate of Harvard Law School, is a former clerk to U.S. Justice Antonin Scalia and former professor at the University of Notre Dame Law School. A practicing attorney in Minnesota in 1995, Schiltz represented the T-Wolves in case re: relocation of team to New Orleans. In the case, the NBA Board of Governors rejected sale of T-Wolves to investor group, "Top Rank", in New Orleans. NBA then sued both T-Wolves and Top Rank, seeking declaratory order from court that T-Wolves owners could not sell team to Top Rank w/o league approval. Schiltz represented T-Wolves, which eventually joined the side of the NBA in the litigation. Not only was he lawyer in litigation over T-Wolves failed relocation to New Orleans, but Schiltz represented NFL in several cases, including Powell v. NFL and McNeil v. NFL. McNeil helped lead to new CBA between NFL and NFL players.

New Sports Law Scholarship

2011-11-21T16:50:00.001-05:00

Recently published sports law scholarship includes:

Jessica L. Adair, In a league of their own: the case for intersex athletes, 18 SPORTS LAWYERS JOURNAL 121 (2011)

Adam Epstein & Bridget Niland, Exploring Ethical Issues and Examples by Using Sport, 13 ATLANTIC LAW JOURNAL 13 (2011)

James R. Andrews, Why are there so many injuries to our young athletes? Professionalization and specialization in youth sport, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 575 (2011)

Ross Appel, Note, Head east, young man (and comparatively older men who are likely to languish in the minor leagues), 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 109 (2010)

Andrew D. Appleby, For the love of the game: the justification for tax exemption in intercollegiate athletics, 44 JOHN MARSHALL LAW REVIEW 179 (2010)

Jessica Baranko, Hear me roar: should universities use live animals as mascots?, 21 MARQUETTE SPORTS LAW REVIEW 599 (2011)

Jonathan Bateman, Book Note, Reviewing Billy Hawkins, The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions, 21 MARQUETTE SPORTS LAW REVIEW 793 (2011)

Eric Blevins, College football’s BCS (bowl cartel system?): an examination of the Bowl Championship Series agreement under the Sherman Act, 18 SPORTS LAWYERS JOURNAL 153 (2011)

Victor Broccoli, Policing the digital wild West: NCAA recruiting regulations in the age of Facebook and Twitter, 18 SPORTS LAWYERS JOURNAL 43 (2011)

Christine A. Burns, Comment, Potential game changers only have eligibility left to suit up for a different kind of court: former student-athletes bring class action antitrust lawsuit against the NCAA, 6 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 391 (2011)

Loftus C. Carson, II & Michelle A. Rinehart, The big business of college game day, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2010)

Marc Charmatz, Lindy L. Hedges-Wright & Matthew Alex Ward, Personal foul: lack of captioning in football stadiums 45 VALPARAISO UNIVERSITY LAW REVIEW 967 (2011)

Josh Chetwynd, Clubhouse controversy: a study of dispute resolution processes between teammates in Major League baseball, 16 HARVARD NEGOTIATION LAW REVIEW 31 (2011)

Christopher B. Chuff, Comment, “Rolling the dice” on financial regulatory reform: gambling law as a framework for regulating structured investments, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 569 (2011)

Jeremy Corapi, Note, Huddle up: using mediation to help settle the National Football League labor dispute, 21 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 789 (2011)

Joshua B. Couvillion, Note, Defending for its life: ChampionsWorld LLC v. United States Soccer Federation denies extending antitrust immunity to USSF in regulating professional soccer, 18 SPORTS LAWYERS JOURNAL 325 (2011)

Caitlin M. Cullitan, Note, “I’m his coach, not his father.” A Title IX analysis of sexual harassment in college sports, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 53 (2010)

Elizabeth Hart Dahill, Note, Hosting the Games for all and by all: the right to adequate housing in Olympic host cities, 36 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1111 (2011)

Darren Heitner & Jason Wolf, In Baseball's Best Interest?: A Discussion of the October 2010 MLBPA Regulations Governing Player Agents, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 249 (2011)

Marc Edelman & Joseph A. Wacker, Collectively bargained age/education requirements: a source of antitrust risk for sports club-owners or labor risk for players unions?, 115 PENN STATE LAW REVIEW 341 (2010)

Marc Edelman, Does the NBA still have “market power?” Exploring the antitrust implications of an increasingly global market for men’s basketball player labor, 41 RUTGERS LAW JOURNAL 549 (2010)

Brad Ehrlichman, In this corner: an analysis of federal boxing legislation, 34 COLUMBIA JOURNAL OF LAW & ARTS 421 (2011)

Mitchell L. Engler, The untaxed king of South Beach: LeBron James and the NBA salary cap, 48 SAN DIEGO LAW REVIEW 601 (2011)

Natasha C. Farmer, Note, Jockey advertising regulations in horseracing, 3 KENTUCKY JOURNAL OF EQUINE, AGRICULTURAL & NATURAL RESOURCES LAW 103 (2010-2011)

Meir Feder, Is there life after death for sports league immunity? American Needle and beyond, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 407 (2011)

Lauren Ferrante, Note, Two for one: how the NCAA rules do not adequately address package deals and a proposed rule to prohibit them, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 77 (2010)

David Franklin, Note, League parity: bringing back unlicensed competition in the sports fan apparel market, 86 CHICAGO-KENT LAW REVIEW 987 (2011)

Laurie C. Frey, How the smallest market in professional sports had the easiest financial journey: the renovation of Lambeau Field, 18 SPORTS LAWYERS JOURNAL 259 (2011)

Kristina M. GerardiTackles that rattle the brain, 18 SPORTS LAWYERS JOURNAL 181 (2011)

Ariana E. Gillies, Comment, Not with a bang, but a whimper: Congress’s proposal to overturn the Supreme Court’s Leegin decision with the Discount Pricing Consumer Protection Act of 2009, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 645 (2011)

Nathaniel Grow, Louisville v. Duke and its implications for breached college football scheduling agreements, 37 JOURNAL OF COLLEGE & UNIVERSITY LAW 239 (2011)

Jennifer Gustafson, Comment, Bronze, silver, or gold: does the International Olympic Committee deserve a medal for combating human trafficking in connection with the Olympic Games?, 41 CALIFORNIA WESTERN INTERNTAIONAL LAW JOURNAL 433 (2011)

Diane Heckman, The entrenchment of the glass sneaker ceiling: excavating forty-five years of sex discrimination involving educational athletic employment based on Title VII, Title IX and the Equal Pay Act, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 429 (2011)

Dennis P. Hughes, Jr., Book Note, Reviewing Bill Madden, Steinbrenner: The Last Lion of Baseball, 21 MARQUETTE SPORTS LAW REVIEW 801 (2011)

Michelle R. Hull, Note, Sports leagues’ new social media policies: enforcement under copyright law and state law, 34 COLUMBIA JOURNAL OF LAW & ARTS 457 (2011)

Bryan T. Ikegami, Note, From dumpster to dicta: how the BALCO investigation created incurable violations of players' rights and how to prevent them,34 COLUMBIA JOURNAL OF LAW & ARTS 491 (2011)

Mohit Khare, Note, Foul ball! The need to alter current liability standards for spectator injuries at sporting events, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2010)

Robb Kuczynski, Book Note, Reviewing Charles H. Martin, Benching Jim Crow: The Rise and Fall of the Color Line in Southern College Sports, 1890-1980, 21 MARQUETTE SPORTS LAW REVIEW 787 (2011)

Adam Harris Kurland, The prosecution of Michael Vick: of dogfighting, depravity, dual sovereignty, and “A Clockwork Orange,” 21 MARQUETTE SPORTS LAW REVIEW 465 (2011)

Christina Lembo, Comment, FIFA transfer regulations and UEFA player eligibility rules: major changes in European football and the negative effect on minors, 25 EMORY INTERNATIONAL LAW REVIEW 539 (2011)

Sheri Lipman, The story of the disappearing season: should strict liability be used in the NCAA infractions process?, 41 UNIVERSITY OF MEMPHIS LAW REVIEW 847 (2011)

James T. & Lisa P. Masteralexis, If you’re hurt, where is home? Recently drafted minor league baseball players are compelled to bring workers’ compensation action in team’s home state or in jurisdiction more favorable to employers, 21 MARQUETTE SPORTS LAW REVIEW 575 (2011)

Robert A. & Amy Christian McCormick, Major college sports: a modern apartheid, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 13 (2010)

James T. McKeown, The economics of competitive balance: sports antitrust claims after American Needle, 21 MARQUETTE SPORTS LAW REVIEW 517 (2011)

Richard H. McLaren, Is sport losing its integrity?, 21 MARQUETTE SPORTS LAW REVIEW 551 (2011)

Mary Catherine Moore, Note, There is no “I” in NCAA: why college sports video games do not violate college athletes’ rights of publicity such to entitle them to compensation for use of their likenesses, 18 JOURNAL OF INTELLECTUAL PROPERTY LAW 269 (2010)

William E. Nesnidal, The fan can phenomenon: the scope of universities’ color schemes as trademarks in light of Budweiser’s team pride campaign, 18 SPORTS LAWYERS JOURNAL 283 (2011)

John V. O’Grady, Casenote, The end of indecency? The Second Circuit invalidates the FCC’s indecency policy in Fox Television Stations, Inc. v. FCC, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 527 (2011)

Elizabeth Odian, Preventing Sonicsgate: the ongoing problem of
franchise relocation, 18 SPORTS LAWYERS JOURNAL 67 (2011)

David A. Palanzo, Comment, Safety squeeze: banning non-wood bats is not the answer to amateur baseball’s bat problem, 51 JURIMETRICS JOURNAL 319 (2011)

R. Alexander Payne, Note, Rebuilding the prevent defense: why unethical agents continue to score and what can be done to change the game, 13 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 657 (2011)

David Pepper, Comment, Anand v. Kapoor, 55 NEW YORK LAW SCHOOL LAW REVIEW 1191-1211 (2010/11)

Christopher Powell, Comment, Premises liability in California: chilling the diffusion of bicycle motocross, 47 CALIFORNIA WESTERN LAW REVIEW 329 (2011)

Timothy Poydenis, The unfair treatment of Dominican-born baseball players: how Major League Baseball abuses the current system and why it should implement a worldwide draft in 2012, 18 SPORTS LAWYERS JOURNAL 305 (2011)

Erica N. Reib, Comment, Ante up or fold: what should be done about gambling in college sports?, 21 MARQUETTE SPORTS LAW REVIEW 621 (2011)

Ryan M. Rodenberg & Andrea N. Eagleman, Uneven bars: age rules, antitrust, and amateurism in women’s gymnastics, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 587 (2011)

Chris Sagers, Why Copperweld was actually kind of dumb: sound, fury and the once and still missing antitrust theory of the firm, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 377 (2011)

Michael C. Shull, Comment, Biting the hand that feeds: how trademark protection might threaten school spirit, 21 MARQUETTE SPORTS LAW REVIEW 641-665 (2011)

Rachel D. Solomon, Note, Cuban baseball players, the unlucky ones: United States-Cuban professional baseball relations should be an integral part of the United States-Cuba relationship, 10 JOURNAL OF INTERNATIONAL BUSINESS AND LAW 153 (2011)

Patrick Sterk, To pray or to play: religious discrimination in the scheduling of interscholastic athletic events, 18 SPORTS LAWYERS JOURNAL 235 (2011)

Alexander F. Tilton, Note, Mayer v. Belichick: “spygate” scandal is not the court’s concern, 18 SPORTS LAWYERS JOURNAL 341 (2011)

Brian Welch, Comment, Unconscionable amateurism: how the NCAA violates antitrust by forcing athletes to sign away their image rights, 44 JOHN MARSHALL LAW REVIEW 533 (2011)

Kevin W. Wells, Labor relations in the National Football League: a historical and legal perspective, 18 SPORTS LAWYERS JOURNAL 93 (2011)

Gregory J. Werden, American Needle and the application of the Sherman Act to professional sports leagues, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 395 (2011)

Matthew A. Westover, Comment, The breaking point: examining the potential liability of maple baseball bat manufacturers for injuries caused by broken maple baseball bats, 115 PENN STATE LAW REVIEW 517 (2010)

Ulysses S. Wilson, Comment. The standard of care between coparticipants in mixed martial arts: why recklessness should ‘submit’ to the ordinary negligence standard, 20 WIDENER LAW JOURNAL 375 (2011)

Roberta Furst Wolf, Note. Conflicting anti-doping laws in professional sports: collective bargaining agreements v. state law, 34 SEATTLE UNIVERSITY LAW REVIEW 1605 (2011)

Daniel J. Zajda, A true home field advantage: a striking coincidence in the criminal prosecutions of professional athletes for in-game violence, 18 SPORTS LAWYERS JOURNAL 1 (2011)

Michael K. Zitelli, The controversy ensues: how Major League Baseball’s use of DNA testing is a matter for concern under the Genetic Information Non-Discrimination Act, 18 SPORTS LAWYERS JOURNAL 21 (2011)

University of Baltimore Law Professor Dionne Koller on Penn State Scandal

2011-11-21T15:05:00.002-05:00

There have been a number of provocative and well-argued commentaries on the Penn State scandal. University of Baltimore School of Law Professor Dionne Koller provides another one and from a vantage point that has not been raised: It's a Guy Thing at Penn State, and That's a Problem

Temple Law Professor Jermei Duru on Penn State scandal

2011-11-21T12:07:00.000-05:00

Great piece on The Post Game by Professor Jeremi Duru on the Penn State scandal - Explaining Penn State Scandal To My Dad.

NY Times Article on becoming a law professor: Is it like a pro sports draft?

2011-11-20T13:00:00.001-05:00

Very provocative article today by David Segal of the NY Times. Among many points critical of law school teaching and of allocation of law school resources - and students' tuition dollars - on arguably irrelevant or ponderous legal scholarship, he makes an apt comparison between how one becomes a law professor and how a prospect participates in a pro sports draft:

The Prestige Game

About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.

At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.

Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”

Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).

To read this article, click here.

NBA's "one and done" rule: if lockout persists, will someone challenge rule?

2011-11-20T10:32:00.000-05:00

Tom Reed of the Cleveland Plain Dealer explores the possibility of the NBA holding a draft during an extended lockout. The draft and particularly the "one and done" eligibility rule -- which requires that U.S. players be 19-years-old and one year removed from high school -- would be subject to antitrust challenge, as they would no longer be borne from collective bargaining. Reed interviews Alan Milstein, Sonny Vaccaro and me on the topic.

For a great discussion on the empirical analysis of players who have jumped from high school to the NBA, see Zach Lowe's recent SI column.

Related point: there is a very good chance that when the lockout is ultimately resolved, and a new CBA is in place, the eligibility rule will be raised to 20-years-old and two years removed from high school. Whether that will motivate players to skip what would be their freshman and sophomore years in college to play professionally in Europe for a couple of years remains to be seen.

The Penn State Debate: Are NCAA Sanctions Inevitable?

2011-11-18T17:00:00.002-05:00

Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on.

By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.

The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1 lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw 11.1.2.1 states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”

To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.

Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.

Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating, “We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.

Sports Law Internship Opportunity

2011-11-18T09:00:00.000-05:00

The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:

http://baseballjobs.teamworkonline.com/teamwork/r.cfm?i=39878

Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)

2011-11-17T09:00:00.001-05:00

By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:

- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).

- Anthony v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the Northern District of California, which is part of the 9th Circuit).

- National Basketball Association v. National Basketball Players Association (filed as a declaratory judgment suit by the NBA teams against the players on Aug. 2, 2011 in the U.S. District Court for the Southern District of New York, which is part of the 2d. Circuit).

Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.

(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.

One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.

In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.

(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case

In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."

While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.

While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.

For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.

Questioning the NBA Players' Litigation Strategy

2011-11-16T12:00:00.000-05:00

NBA players filed two different antitrust lawsuits against the NBA owners on Tuesday, one in the U.S. District Court for the Northern District of California, and one in the District for Minnesota. Although I haven't yet been able to track down a copy of either complaint online, the players' attorney David Boies has stated that he doesn't intend to pursue a preliminary injunction lifting the NBA's lockout in either case. Boies, of course, previously represented the NFL owners in the Brady v. NFL litigation this past spring, where he successfully persuaded a majority of the Eighth Circuit panel that a preliminary injunction blocking a lockout is improper under the Norris-LaGuardia Act.

Despite the Eighth Circuit's decision in Brady, I can't help but think that the NBA players are making a mistake by not seeking a preliminary injunction to lift the lockout. Although the NFL players ultimately lost on the injunction issue at the Eighth Circuit, they were nevertheless able to convince the district court judge, as well as one of the three appellate judges, that a preliminary injunction lifting a lockout could issue under the Norris-LaGuardia Act. And even the majority of the Eighth Circuit panel believed that injunctive relief might be appropriate to temporarily lift the lockout for at least a segment of the players (i.e., those not currently under contract with an NFL team). Therefore, there is a legitimate chance that a different judge (and perhaps a panel of the Ninth Circuit) would be willing to grant the NBA players preliminary injunctive relief preventing the NBA owners from continuing their lockout.

Given this possibility, I don't see why the NBA players wouldn't at least seek a preliminary injunction. A court order lifting the lockout would give the players perhaps the greatest bargaining leverage they could hope to achieve from a lawsuit against the owners. In turn, an injunction would provide players with the best chance of reaching a favorable resolution of the dispute in time to save at least part of the season. Meanwhile, the potential downside of seeking a preliminary injunction is minimal, since a refusal by the court would merely maintain the status quo.

Consequently, I don't understand the logic behind not seeking a preliminary injunction. What am I missing here?

New Sports Illustrated Column: Legal Implications of Jerry Sanduskys' Interview with Bob Costas

2011-11-15T23:52:00.000-05:00

I have a new SI column on the Penn State scandal. Here is an excerpt:

The problem with Sandusky's legal strategy is not only that a growing number of men independently charge that Sandusky raped them while they were children, but that also admitting to strange and lewd behavior with children would likely make jurors highly suspicious of him and more inclined to convict him of sexual assault. Put differently, it's hard to believe there is a merely a misunderstanding between Sandusky's recollection of the facts and that of the alleged victims when Sandusky freely admits to showing terrible judgment.

The interview also reflects poorly on Penn State. Sandusky admitted to behavior that was far from discreet and was sure to attract the attention of others. Along those lines, did no one at Penn State find it disconcerting that Sandusky was showering with boys? Did any school official notice any unusual "touching" by Sandusky? Joe Paterno's insistence that "we were all fooled" seems even more hollow after Sandusky's interview.

To read the rest of the column, click here.

Breaking News: NBA Players disclaim interest:: Legal Analysis

2011-11-14T14:59:00.002-05:00

The 2011-12 NBA season just became less likely. I talk to NBA TV about what today's big news means. And then later in the evening I spoke with Dennis 3D Scott, Stan Kasten, David Aldridge and Matt Winer.

Also, here is my Sports Illustrated video on this topic, with dramatic music in the background:

Follow the Money

2011-11-12T10:00:00.006-05:00

Here's the question. Is the Penn State scandal a sports law issue or simply a criminal matter? Consider this scenario. A young muscular graduate student in Biology wanders into a lab and sees an aging Assistant Professor raping a ten year old boy. Is there any doubt the perpetrator, if aware he had been seen, would immediately stop, the witness would intervene, the cops would be called, the Professor would be put away, and the University and its President would not be implicated in the least?

Why did that not occur here? Only one answer: the money generated by the plantation system known as the NCAA. For Penn State that is 100 million dollars, 75 million in football revenue and 25 million in assorted generic memorabilia like sweatshirts mostly attributed to the football program.

One telling fact that has not been given much attention. Look at the chain of command that failed miserably in this case. McQuery tells Paterno the coach. He tells Curley the Athletic Director. Who does he tell? Gary Schultz. His title? Vice President of Business and Finance. Among the many unanswered questions, who else knew? Typically the AD must report any potentially troubling incidents to the Conference Commissioner. Did Curley do that here? If not, why not?

UPDATE from Mike McCann: Below are some excellent comments responding to my Facebook post on Follow the Money:

Mark McKenna [Notre Dame Law Professor]
Is there any doubt the grad student would intervene? Absolutely there is. There has been way too much of the "this is because it was football." if anyone doesn't think a grad student dependent on a star faculty member for his future might have acted just like McQuery did, they are kidding themselves. And kidding oneself this way is dangerous because it allows all of us off the hook too easily by making this seem like a problem of some "other" culture.

Afi Johnson-Parris [Attorney in Greensboro, North Carolina]
Is it too much to expect that he would have had even an ounce of courage to make a noise from the shadows, flicked the lights, called out "is anyone there?," something, anything to make it stop, anything but walking away. How do you just walk away? I agree, that has less to do with football than it does to do with courage. Funny, they're always saying that courage is what football is about.

Mark McKenna
No, Afi, clearly it's not too much to ask. I wasn't in any way making an excuse for him. I was only pointing out that lots of people have made themselves feel better about this situation by pretending that this is just something about the culture of some institution rather than a sad, but universal, fact about human beings. They protect themselves and the institutions they believe in first. See also, the Catholic Church.

Michael McCann
Not that this would have likely stopped what happened at Penn State, but I think a better model to college sports would be for there to be an independent branch of a school, sort of like an independent federal agency that's to some extent insulated from the executive branch, that regulates the athletic departments. It may moderate the "winning at all costs, everything else be damned" approach we see at too many schools. In terms of Mark and Afi's larger points, I agree that this story is about much more than why persons in a big time sports program respond so poorly to a fellow human in crisis. It also says, as Mark notes, that allegiance to institutions too often trumps allegiance to basic morality. Perhaps it also says that instead of these persons lacking humanity it's that humanity is less than what we expect or hope for.

Mark McKenna
I can't bring myself to "like" your last post, Mike, but the last sentence is right on.

Alan Milstein
Mark, I just have to disagree. I do not think it is the norm for someone to not do anything when confronted by an old man raping a ten year old boy. Even if it is a superior, you would have to believe in an academic setting the grad student would believe the chairman of the department and everyone else would come down hard on the offender. Mainly because there is nothing to lose. That's the difference here. There was something to lose if they didn't cover it up. Millions of dollars. Incredibly, all they did was take away his locker room privileges, presumably so he could do his business elsewhere just not in the Penn State locker room.

Mark McKenna
No, I wouldn't believe that people would act differently in another academic setting. People act selfishly whenever there is a lot for them to lose. There is a ton to lose when a graduate student reveals something about a supervisor they depend on (and grad students depend enormously on their advisors). There is a ton to lose when speaking up would force you to confront the failures of an institution you believe in. The statistics on abuse are staggering, and they couldn't be even remotely right if you were right that people generally speak up and stop things. They don't. I guarantee you that there has been undisclosed abuse in virtually any organization. This is not an apology - it's absolutely the wrong thing. But I think we delude ourselves by pretending it couldn't happen in our own back yard.

Jason Chung For me, the fact that people some people honestly say that they would have also walked away or merely alerted their superior when confronted with a similar situation is the greatest indictment of our culture.

Alan Milstein And your analogy to the Catholic Church doesn't help your point. The same forces are at work. But outside of such institutions like Penn State and the Catholic Church, where most of us reside, I have to believe most people would do the right thing and stop the brutalization. It's a ten year old boy, for God's sake. People by and large are good not bad, moral not immoral, caring not uncaring.

Mark McKenna I wish it were so, Alan. But I don't think it is. If you want to exclude all the institutions because the same forces are at work, then I think you have a long list to exclude. And that's my point.

Jason Chung
Mark, I understand your point - in today's society where everyone is looking to get ahead, there is sometimes tension between doing the right thing and doing what seems right for you personally. Sometimes, people do the latter instead of the former. Understood. However, I think that Alan's point is that the cult of big-money sports amplifies what we would consider "acceptable" in the realm of distasteful things one would tolerate. I'm not sure that I entirely agree with that assessment but I do acknowledge that sports, and particularly collegiate sports, has more than a fair whiff of an insular, old boys network feel to it where omerta and misguided "loyalty" is preferable to decency. I'd normally make an analogy or example trying to illustrate this point but, frankly, this entire issue is so beyond the pale, it makes me sick. This equalizer is this - At least, we, the fans, don't have to accept it. Stay vigilant, make noise, keep those responsible (and those who enabled) accountable.

Alan Milstein
This story is just beginning. The cover up has yet to be uncovered.

New York University School of Law Sports Law Panel on College Athletics

2011-11-11T09:00:00.003-05:00

Next Monday - November 14 - NYU Law will host a sports law panel on college athletics from 4 to 6 p.m. at 40 Washington Square South.

Sports Law Blog contributor Alan Milstein -- who I hear will have some provocative commentary about the NCAA and treatment of college athletes to share with the audience -- will be joined by other terrific panelists.

Here's the group:

* Craig Esherick - former head coach of the Georgetown Hoyas men's basketball team and head of the Sports Management program at George Mason (also a lawyer)

* Alan Milstein - nationally-recognized sports litigator (has represented Allen Iverson, Eddy Curry, Allen Houston, Richard Hamilton, Maurice Clarett and others in litigation matters) and co-managing shareholder of Sherman Silverstein Kohl Rose & Podolsky

* Dr. Constance Zotos, former Athletic's Director of Drew University

* Seth Wickersham, writer for ESPN The Magazine

* Professor Robert Boland from the NYU School of Continuing and Professional Studies will be moderating the discussion.

Two posts on Penn State

2011-11-10T17:37:00.000-05:00

I have two posts on the Penn State mess over at Prawfs. I thought I'd link to them, rather than reposting.

Here, I question what the students were protesting about at Penn State last night and what they are thinking in objecting to Paterno's firing in this circumstance. Here, I question the use of the word "technicality" to describe a likely argument from the indicted Penn State officials that in 2002 they had no obligation to report a second-hand report of child molestation.

Feel free to post comments there or here.

University of Mississippi School of Law Sports Law Symposium (this Friday 11/11/11)

2011-11-10T13:30:00.002-05:00

I will be speaking, presenting my latest law review piece dealing with Social Media and the NCAA, this Friday, November 11th at the law school at Ole Miss. I will have a draft up on my SSRN page soon, tentatively titled: Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation. See below for the official invite:

"The Mississippi Sports Law Review would like to invite you to its inaugural sports law symposium. The symposium will take place on Friday, November 11th at the University of Mississippi School of Law. Lunch will be served at Noon and the symposium will begin at 1 p.m. The symposium will address the issue of Social Media and Intercollegiate Athletics, and will be accompanied by an issue of the Review to be released later in the winter.

The following authors will present their articles at the symposium:

John T. Wendt & Peter C. Young – Reputational Risk and Social Media

Jerry Parkinson – Impact of Social Media on NCAA Infractions Cases

Mary Margaret “Meg” Penrose – Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media

Timothy Liam Epstein - Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation"

We hope you can make it.

New Sports Illustrated Column: Did Joe Paterno Break the law???

2011-11-09T22:52:00.001-05:00

Joe Paterno is out as head coach of Penn State. I have a new column for Sports Illustrated on the possibility he will face criminal charges and tort claims. Here's an excerpt:

* * *

These inconsistencies related to Paterno's and McQueary's statements about "Victim 2" in the grand jury's statement of facts. According to the grand jury's findings of fact, McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno.

After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy.

To be sure, the phrase "doing something of a sexual nature" technically includes forcibly subjecting a child to anal intercourse, meaning Paterno may have been more evasive than untruthful. Then again, Paterno's hazy choice of words could encompass a band of sexual acts, from raping a 10-year-old boy to inappropriately touching or patting a child, that ranges too widely in heinousness to be deemed consistent with McQueary's allegedly more specific statements. The phrase unnecessarily imports ambiguity and generality where none had existed, and dubiously invites the listener -- Curley -- to assign a lack of severity to the incident. From that lens, Paterno appears to have told Curley a different account than what McQueary had told him.

* * *

To read the rest, click here.

Off Pitch: What Glee Can Teach Us About College Athletics

2011-11-09T11:09:00.000-05:00

In trying to explain the issues within college athletics to my 15 year old daughter, I realized an analogy might make sense. What better way to connect than by referencing Glee.

I posted the following essay on the Huffington Post, which uses Glee to describe many of the issues in college sports.

Let me know what you think of this LIGHTHEARTED attempt.

[Also, before I get the hate email, I recognize that in reality, those competing in drama and glee clubs around the country would overwhelmingly jump at the opportunities of the top student-athletes within the sports of football and men's basketball.]

Understanding the NBA Players' Decertification Strategy

2011-11-08T12:56:00.009-05:00

Mike wrote about this topic last week for Sports Illustrated, and I now have a new column up over at the Huffington Post analyzing the complicated web of legal issues raised by the potential decertification of the NBA Players Association. Here's an excerpt. You can find the full column here.

If the players go forward with the decertification petition, is the 2011-2012 season completely lost?
Not necessarily. Although antitrust litigation is painfully slow, expensive, and unpredictable, the mere threat of decertification followed by antitrust litigation might cause the owners to move at the bargaining table. In other words, the owners might be willing to make concessions at the bargaining table to avoid the inherent uncertainty of antitrust litigation. Of course, decertification might have the opposite effect. The owners, wary of setting a precedent of caving at the bargaining table when the players threaten to decertify, might dig in their heels even further and call the players' decertification bluff. This could lead to the ultimate lose-lose situation--the NBA season is cancelled while the NBA owners fight the NBA players in court.
Assuming the mere threat of decertification/litigation is not enough to move the owners, the NBPA could (while the players are waiting for the decertification election) disclaim interest in representing the players. Disclaimer would permit the players to file their antitrust suit immediately. The NBA owners would argue that any such lawsuit must be heard in NY, so the players could either file in NY (unlikely) or file in another jurisdiction and engage in a legal battle to allow them to choose where the case is heard (more likely).
Even if it gets all the way to an actual decertification vote, the season isn't necessarily lost. It is possible--although a lot of things would have to go right for the players for this to occur--that the players are able to vote to decertify and file an antitrust in late December and get a court to issue a temporary restraining order blocking the lockout by early January. That's a bit of a long shot, but it's possible, and the mere possibility of it could be enough to convince enough of the owners to make a deal to avoid that outcome.

Modifiers

2011-11-08T10:03:00.000-05:00

I write this with some trepidation. So I'm going to begin with a disclaimer: I am not trying to suggest anything about what is right or wrong or what should be treated as right or wrong. I just want to think about how we treat certain speech. Please keep that in mind in any responses. OK, I just set myself up for some very high (or low) expectations, so here we go.

Steve Williams is a professional golf caddy who worked for Tiger Woods for more than a decade (earning a lot of money, as well as a reputation as being Woods' overbearing bodyguard/hitman on the course). Woods unceremoniously fired Williams last summer, a move over which Williams is still just a bit bitter. Williams caught on with a golfer named Adam Scott (who himself has a rivalry and tension with Tiger); Scott won a tournament earlier this year, after which Williams preened and called it the greatest victory of his life. Over the weekend, at a caddie celebration dinner, Williams explained "I wanted to shove it up that black arsehole." Word of what Williams said at the closed, "off-the-record" event quickly got out. Williams issued a typical famous-person denial by the next morning, saying "I apologize for comments I made last night . . . I now realize how my comments could be construed as racist. However, I assure you that was not my intent. I sincerely apologize to Tiger and anyone else I've offended."

Williams is being criticized for making a "racist" remark and he used that term in his sort-of apology. But should his remark be considered racist and why or why not? Do they suggest he is racist? Or are the remarks, and therefore Williams, just stupid?

The upshot is that Williams is in trouble for using a bad modifier. Had he simply called Woods an "arsehole," people would have thought Williams was an obnoxious ass, but not racist. Same thing had he called Woods a "cheating arsehole" (in reference to Woods widely reported infidelity) or a "sex-addict arsehole" (in reference to Woods reportedly seeking treatment for sex addiction) or "washed-up arsehole" (in reference to Woods struggles on the golf course). But Williams mentioned, in a purely descriptive way, the unquestioned fact that Woods is (part) black. And the narrative is that this modifier made his comments, and perhaps him, racis. Indeed, Williams' apology was all about his own state of mind--that he did not have racist intent in what he said and therefore is not racist.

But Williams did not use a racial slur. He did not attribute his dislike of, or anger at, Woods to Woods' being black (as opposed to being an arsehole). He did not make a statement about what type of person Woods is because of his race. He did not suggest Woods is inferior or incapable because of his race. He did not make a comment grounded in any racial stereotypes (compare when another golfer was criticized for joking about Augusta National serving soul food at the tournament dinner after Woods won the Masters). Williams made an observation and stated a fact--Woods is black. He also is, in Williams' view, an arsehole. And, therefore . . .
So that has been the change in our discourse: We have made the mention of race (along with other characteristics, such as ethnicity, religion, gender, etc.) improper even as a purely factual matter when criticizing someone. You can call someone a #$*&% with relative impunity; you no longer can call him a [Race/Gender/Ethnicity/Religion] #$*&%. And doing so tags the speaker as racist.

My best guess at a justification is that because race is (or should be) irrelevant to our opinion of someone, mentioning race serves no purpose. Thus, mentioning it, even as a factual modifier, calls attention to the target's status as a member of a minority or historically weak or disempowered group. The use of the modifier highlights the target's "otherness" or singleness in society. Williams would not have called a white golfer a "white arsehole", because emphasizing whiteness does not call up that otherness. Racializing the insult makes that insult worse by calling up and highlighting that otherness, even if that otherness is merely a descriptive modifier and not the heart of the insult. Or maybe the explanation is slightly different: Because race is irrelevant, anyone who mentions actually is using it as the basis of the opinion. In other words, Williams dislikes Woods because of his race (and not because of his arseholeness), otherwise he wouldn't have mentioned it.

I cannot emphasize strongly enough that I am not defending what Williams said or did. I only am trying to consider how and why we characterize the act a certain way.

Live from New York it's . . . the NBA Lockout

2011-11-06T10:09:00.000-05:00

I've been covering the NBA lockout for NBA TV the last couple of days in the Sheraton Hotel on 53rd and 7th avenue in NYC, where the meetings have been held. Here are a couple of videos: Primer on Decertification and Reaction to failed meetings.

Call for Papers: Harvard Journal of Sports and Entertainment Law

2011-11-04T15:00:00.001-04:00

The Harvard Journal of Sports and Entertainment Law is soliciting articles from students, legal academics and practitioners for our Spring 2012 Issue. All sports, entertainment or intellectual property related submissions are welcome. Submissions should be no more than 15,000 words. We encourage authors to incorporate legal analysis as well as policy recommendations into their article. Please send submissions to jselsubmissions@gmail.com.

New Column: Why Decertification could doom 2011-12 NBA Season

2011-11-04T01:27:00.000-04:00

Here's an excerpt of my new column for SI on the growing desire of certain NBA players -- and their agents -- to decertify the union and sue the NBA on antitrust grounds. Could mean the cancellation of the 2011-12 NBA season:

In terms of its legal arguments, the NBA may be poised to offer more persuasive reasoning for the legality of its lockout than the NFL could muster for its own lockout. One key factor in a legal analysis of whether a lockout should be enjoined is the irreparable harm to the locked out employees. Unlike NFL players, who had nowhere else to play professional football during the lockout and some of whom would have never returned to the NFL had the 2011 season been canceled, some NBA players have already signed lucrative contracts with teams in foreign basketball leagues. The NBA can maintain that if players can sign to play abroad, then a lockout will not cause their professional basketball careers irreparable harm (or at least will cause much less harm than NFL players suffered/would have suffered). In response, the players would likely contend that playing abroad, and living in a foreign country (and possibly relocating one's family there), constitutes a materially different experience than having an NBA career and living in a U.S. city. Plus, many NBA players have not been able to find roster spots abroad.

The NBA also boldly demands that if the union decertifies in a way endorsed by a court, the league should be able to declare all player contracts void and unenforceable. The league insists that because the Uniform Player Contract (signed by every NBA player) is contained in and governed by the collective bargaining agreement, player contracts should become void once the collective bargaining relationship between the league and players ends. In response, the players can argue that the dissolution of a union should not empower an employer to void contracts between individual employees and the employer. If the NBA ultimately prevails in its argument on player contracts, players would collectively stand to lose billions of dollars. It would also throw the league and its franchises in an uncertain state, with every player, save for those drafted in 2011 and who haven't signed contracts, becoming a free agent.

To read the rest, click here.

New Column: Why Dodgers Deal is a Victory for Bud Selig

2011-11-03T00:00:00.002-04:00

Here's an excerpt of my new column for SI on Frank McCourt agreeing to the sale of team:

* * *

The ability of Selig to take over the Dodgers and effectively kick out its owner will not go unnoticed by the 29 other ownerships groups. The message to them is clear: They better run their businesses profitably or the commissioner can, at his discretion, intervene.

The Dodgers, moreover, are far from the only franchise that has experienced financial difficulties in recent months. New York Mets' owners Fred Wilpon and Saul Katz, defending against a massive lawsuit brought by victims of Bernie Madoff, are likewise having problems. Almost one-third of the league, in fact, exhibits some level of difficultly in maintaining financial soundness: In June, the Los Angeles Times reported that nine franchises -- the Dodgers, Mets, Baltimore Orioles, Chicago Cubs, Detroit Tigers, Florida Marlins, Philadelphia Phillies, Texas Rangers and Washington Nationals -- were in violation of the league's debt services rules. While it can be misleading to take a snapshot of teams' financial situation at any one time, and grouping nine teams together doesn't indicate that some are much worse off than others, a number of ownership groups do not appear to be keeping pace with league requirements. Given Selig's success in taking over the Dodgers, perhaps he will now feel emboldened to threaten other teams that they better get their acts together or they, too, risk league intervention.

MLB players are another interested party in the interplay between team finances and enforcement of league financial rules. Should teams become more fearful of league intervention, it is very plausible that some of those teams will spend less on player salaries and be less active in the free-agent market. More cautious spending by teams could have the effect of curbing salaries; if teams agree with one another to spend less, they open themselves up to charges of collusion. With MLB's collective bargaining agreement set to expire in a little over five weeks (Dec. 11), expect the topic of team finances and their relationship to player payroll to emerge as a key issue in CBA discussions.

* * *

To read the rest of the column, click here.

NBA age limit on the back burner

2011-11-02T16:30:00.002-04:00

Maybe more so than any other topic, age limits in the NBA and NFL have been a focal point on this blog. Zach Lowe of Sports Illustrated reports that the current limit - 19 years old, plus (for U.S. players) one year removed from high school - is on the back burner in discussions between the NBA and the players. Zach also cites the research of several of us. Here is an excerpt:

The rule requiring American players to be at least 19 years old and one year removed from high school before entering the NBA draft was once among the league’s hottest-button issues. The age limit, collectively bargained in 2005, has resulted in prominent one-and-done players such as Kevin Durant and John Wall spending a season as hyped-up college stars, building a brand and then entering the NBA as household names.

It’s not such a hot-button issue anymore, in part because the league decided years ago to stop talking about “maturity” and amateurism and the alleged “ethical issues” of 18-year-olds earning millions to play basketball. League and team officials talk now of the age limit as good business, a rule that makes players famous before they enter the league, gooses interest in the draft and spares teams the expense of paying scouts to attend high school games where NBA candidates destroy inferior competition.

That’s smart, because it’s hard to find one shred of evidence that the age limit helps the affected players have better pro careers. It has been seven years since Michael McCann, a law professor and SI.com contributor, found that players who came straight from high school fared better — in terms of on-court contributions and off-court “behavior” — than players who attended college for any length. ESPN.com’s Tom Haberstroh confirmed the on-court part of McCann’s findings last week, and Ryan Rodenberg, a professor in the Sports Management department at Florida State, is working on an extended study for publication that he says will prove the same thing: that 18-year-olds who entered the draft have outperformed the average NBA player, and that the age limit simply keeps such players from earning money for another year.

To read the rest, click here.

Violence and Aggression in Sports: An Economic Approach

2011-11-02T12:00:00.002-04:00

Two years ago, The Journal of Criminal Law & Criminology had a special issue devoted to "Sports and Criminal Law." Three articles were included - one by Jeffrey Standen, one by Geoffrey Rapp, and one co-authored by Janine Young Kim and Matthew Parlow. I read all three and learned a lot. Collectively, the articles looked at violence in sport from a decidedly legal perspective.

A new book edited by Todd Jewell (part of Springer's book series on sports economics, management, and policy edited by Dennis Coates) looks at violence and aggression in sports from an economic angle. The table of contents highlights the variety of sports and methodological approaches that are covered. Dave Berri and I co-authored a chapter in the book entitled "Crime and Punishment in the NBA." The abstract is below.

This chapter investigates the overlap between National Basketball Association (NBA) referees, the league’s on-court rule enforcers, and the impact of player violence and aggression on individual salary, team wins, and team revenue. The authors’ meta-analysis highlights emerging research on the role of referees in regulating the sport and describes systematic referee bias in connection with race, league profits, and social pressure in the literature. More narrowly, and in contrast to several high-profile media reports, the authors unearth little to no evidence of NBA referees being biased against specific players, coaches, or team owners. With personal fouls as a proxy for player-level aggression, the analysis finds that players who commit more fouls earn lower salaries and hurt their respective team’s chances of winning. Using the high-profile example of Shaquille O’Neal, the authors also demonstrate how O’Neal’s inability to make free throws had a detrimental impact on how many wins he helped produce for his team and a negative effect on his team’s revenue. Such results reveal the overlapping tension between the NBA’s player discipline protocol, efforts toward referee consistency, and certain marketing and public relation goals the league may have.

For an additional resource, see Mike McCann's 2005 study on the relationship between education level and arrest propensity of NBA players.

NBA TV Interview: Will the NLRB help end the lockout?

2011-11-01T22:56:00.001-04:00

Earlier this evening I joined Steve Smith, Matt Winer and Brent Barry on NBA GameTime to discuss the latest in the NBA lockout and whether the NLRB could play a key role in resolving the dispute.

West Virginia Claims Big East Breached Fiduciary Duties

2011-11-01T14:03:00.004-04:00

To try to escape from the Big East without waiting 27 months, West Virginia University has filed suit against the Big East Conference. The central claim in the lawsuit, which can be read here, is that the Big East breached fiduciary duties owed to West Virginia and other football schools.

The complaint itself is fairly vague in regard to the exact fiduciary duty the Conference is thought to have breached. A football conference is a joint venture, and its members presumably owe fiduciary duties to one another (though perhaps liability is limited by the terms of a Conference contract). The Conference staff owe fiduciary duties to the conference and arguably to its members.

Disloyalty runs counter to these fiduciary obligations. It seems as if West Virgnia believes that some disloyalty could be found. The complaint argues that the Conference put the interest of its non-football (read: basketball) members above the interests of its football members. The complaint also articulates what appear to be claims of violation of the duty of care. Here, a plaintiff has a tougher time, since a fiduciary only owes an obligation to act in a careful, competent, and diligent manner. See Restatement (Third) Agency Section 8.08. The whirlwind of conference realignment in recent weeks has created some fairly unusual circumstances, and the claim for carelessness on the part of the Conference seems a tough one.

Sports (Law and) Economics

2011-10-31T11:30:00.001-04:00

As was the case last year, the North American Association of Sports Economists ("NAASE") has organized a number of sessions at the Southern Economic Association's annual conference next month in Washington, DC. The entire program can be found here. The NAASE-sponsored sessions are highlighted here. Several papers will be presented that overlap with sports law. Examples of such topics include doping, salary arbitration, sports betting, and the valuation of elite-level college football programs.

One Is the Loneliest Number

2011-10-29T13:45:00.000-04:00

The glorious baseball season is over. The Eagles are 2 and 4. I am not Canadian. So where is the NBA?

Commissioner David Stern just announced the cancellation of all November games and the Player’s Union Chief, Billy Hunter, announced no new talks are scheduled. What’s the holdup? The league composed of millionaire owners is at 50 per cent of revenues and the millionaire players are demanding 52 per cent.

This circus of a dispute is at a time when millions of Americans are out of work and those who are working find their assets and homes have lost significant value, And at a time when the Occupy Wall Street protesters are being gassed in Oakland for asserting that the 99% of the population has been gouged by the top 1 per cent, whose members include both the owners and players in the National Basketball Association.

Now let’s think you 1 per centers: how can you resolve your differences and return to your jobs of providing entertainment in the form of guys running back and forth trying to put a little ball in a bucket. I am no genius nor a labor lawyer, just a litigator who has settled quite a few cases. Here’s a wild idea. Each of you take that 1 per cent that defines you, add or subtract it, and settle at 51 per cent.

And, by the way, while you’re at it, don’t raise the minimum eligibility age.

Mr. Zola goes to Washington

2011-10-29T13:03:00.001-04:00

Warren Zola, a contributor to this blog and a sports law and sports business expert at Boston College's Carroll School of Management, will be speaking to Congress on Tuesday, November 1, at a roundtable discussion entitled "Hype or Hypocrisy? The Impacts of Back-Room Deals, Payoffs, and Scandals in American Collegiate Student Athletics." The discussion will take place between 1 and 3:30 p.m. in the Congressional Visitors Center and Auditorium. Jeremy Schaap of ESPN will moderate. Congressman Bobby Rush, who we've blogged about before, has put together this panel.

It sounds like an excellent event and best of luck to Warren.

B.A., Sports Performance, University of Florida*

2011-10-26T19:52:00.000-04:00

Sally Jenkins of the Washington Post proposes a very different reform for college sports: Allow athletes to major in "Performance of Sport," building around participation on the team a (hopefully) rigorous curriculum looking at history, law, ethics, policy, and business of sports. Jenkins discusses her proposal on a Slate podcast. Sports, she argues, should be like drama or music or dance or art, all of which are accepted as intellectually and academically worthy enough to be integrated into the life of the school. All are pre-professional majors--athletes (at least stars in top-level football and men's basketball programs) are in college to prepare to be professional athletes, just as theatre majors are in college to prepare to be actors. The similarity extends further in that, like athletes, theatre or music students bring unique extra-academic talents to the mix and spend significant time outside the classroom practicing and honing those skills. A further similarity is that all come to a school less for the school than for the person at the school (a coach or a particular cello teacher) and may be tempted to change schools if that person leaves.

This is an interesting idea. Arguably, major basketball and football schools already do a poor-man's version of this with majors such as "Leisure Studies," although these do not go the full step of awarding academic credit for playing on the team. But is Jenkins right that this would eliminate much of the corruption in college sports? Under her model, "the worth of an athletic scholarship would suddenly be clearer. We could stop worrying about “exploiting” athletes and whether to pay them. Yale drama undergraduates don’t get a cut of the box office — their recompense is first-rate training for the stage. They aren’t exploited. They’re privileged." Jenkins makes a slightly different point that I also agree with: We actually treat student-athletes worse than regular students (including students in performance majors) by not allowing them to work, to perform professionally away from school, make money off their images, etc.

The devil is in the details, as Jenkins recognizes in the Slate conversation. First, I am not sure this takes away the pressure to share the money with athletes (at least football and men's basketball), which still make money and produce fame and recognition for the university. That we are forthright that the students are majoring in being athletes does not change the fact that they are making money for the school and may want a piece of it. And the analogy to theatre or music breaks down because those departments are not connected to billion-dollar television contracts. Are players going to be any happier that they are receiving scholarships but no salary to be football players than that they are receiving scholarships but no salary to be Leisure Studies majors?

The big risk is that some universities would not take this major seriously, that it would be a series of gut courses that will allow student-athletes to slip by without having to do any real work. This somewhat ties into the fact that many athletes are less prepared for college than their classmates and that schools typically give more admissions leeway for athletes than for cello players. So how easy would it be for some schools to create a major to further protect (and keep eligible) its more academically marginal players. On the other hand, all departments have such courses that all students in all majors take advantage of (at Northwestern, there was a basic statistics course in the Math Department nicknamed "Math for Medill," for all the journalism majors using it to satisfy a requirement). And athletics is not the only area or reason for which such admissions benefits are provided.

Jenkins said she has received many responses from university professors who like the idea. It will be interesting to see if the idea catches on. Thoughts?

* I picked UF at random; not trying to pick on anyone.

Activist athletes and modern sensibilities

2011-10-25T14:07:00.001-04:00

Gerard Magliocca at CoOp argues that NCAA reform will come when one of the NCAA Men's Basketball Tournament finalists refuses to play unless the players receive a share of TV revenues. He continues:

Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?

It's a great point and I agree with Gerard it could work. A few broader thoughts.

First, there is precedent for a group of players achieving union goals by refusing to play a major televised game. NBA players achieved their first significant collective victory when they refused to play the 1964 All-Star Game, deciding to strike in the locker room right before game time, with ABC ready to broadcast. Bill Simmons has a nice discussion of this in his Book of Basketball and righly says there ought to be an HBO Sports Documentary on it.

Second, Gerard is right that such a move would require group solidarity among the entire time, including, probably most importantly, the stars of that team. It worked for the NBA players in 1964 because that game featured Bill Russell, Wilt Chamberlain, Jerry West, Oscar Robertson, and Elgin Baylor. Gerard says that the players would "be called all sorts of nasty names by fans and alumni," comparing them with Curt Flood, the man often (although not entirely accurately) credited with bringing about free agency in baseball by refusing a trade to a new team, and who was similarly criticized and shunned for his efforts.

But I am not sure that is true in modern times. Sports reporters and columnists in 1970 were incredibly conservative and old-school, very cozy with the owners and the league's establishment, and therefore very critical of anyone who dared to challenge the league's dominance and control. They took the owners' side in all of these disputes and the "spoiled players" meme was largely a media creation. Most of the criticism directed at Flood came from those reporters. Sports media today are far-more diverse, far-less pro-establishment, and seemingly more progressive. There are more voices being heard in more foca (hello, bloggers), and at least some of these voices will do more than give a knee-jerk rejection of the players' point of view. The same probably goes for fans. Fans dislike the NCAA and many polls show support for players receiving some form of compensation and some right to control the games they play. Fans are more diverse, more progressive, and (importantly) more well-informed about the business and economic side of the game (as a result of the greater number of media writing on these issues). My speculation is that a substantial percentage of fans would be behind the players--certainly more than were behind Flood in 1970.

Third, it also is worth noting that, while Flood was certainly criticized for his stance, he was not blackballed or denied opportunities to play. As the recent HBO documentary showed, Flood came back in 1971 (paid $ 110,000), but only last 13 games, his skills having faded from his one-year layoff and, perhaps, from the pressure and stress of his stance and the criticism he endured. We also have another modern comparison--Maurice Clarett, who unsuccessfully challenged the NFL's draft eligibility rules by trying to leave college and enter the league following his freshman year at Ohio State. After losing his antitrust suit, Clarett was drafted in the third round and signed a four-year contract, although he was waived before the end of training camp because he was out of shape, rusty, hurt, and generally not able to play at that level by then.

These two historical points are important because, as Gerard correctly notes, such a boycott of the Finals only works if the entire team, including its best players, is on board. But that superstar player not only has to worry about losing a "a once-in-a-lifetime chance to play for the national championship;" he also has to worry about hurting his NBA prospects, either by not being seen on the big stage or by being seen as a troublemaker. The former is not a real problem; given private workouts and the other processes teams use in settling on draft choices, performing well in the Final Four is less essential to getting drafter. The latter also is not a real problem, given that the NBA will accept that "troublemaker" if he can play.

Update: Gerard is not the only person talking about this today. Deadspin reports on a petition by the National College Players Association signed by more than 300 football and basketball players, calling on the NCAA to institute a host of reforms, including increasing the total value of scholarships and putting TV money into a trust fund for athletes. The Deadspin story links to a piece by Yahoo!'s Dan Wetzel calling for a team to boycott a lower-tiered bowl game, which would not require the same level of sacrifice as boycotting a BCS bowl or Final Four game, but still will be high-profile enough to get people's attention.

Is Tony LaRussa a better manager because of his legal education?

2011-10-24T14:31:00.002-04:00

St. Louis Cardinals manager Tony LaRussa, who was a minor league baseball player in the 1970s, is 1978 graduate of Florida State University College of Law. He passed the Florida bar exam one year later. LaRussa, however, would never practice law, instead launching a coaching career with the Chicago White Sox. Two World Series titles (with a third in sight) later, it was obviously the wise choice.

Could LaRussa's time at FSU Law and studying the bar have helped prepare him to become a big league manager? Does it help him now-a-days? In today's Wall Street Journal, I discuss with Joe Palazzo how LaRussa's legal training might have aided his managerial career:

What he learned in law school wasn't lost on his baseball career, say experts who follow sports and the law. "A good lawyer is someone who is receptive to hearing both sides of an argument and to thinking critically about different perspectives," says Michael McCann, director of Vermont Law School's Sports Law Institute. "He has a track-record of listening to coaches before making a decision, and his legal education may have led to that."

Greg Skidmore and Geoff Rapp have previously looked at LaRussa and other coaches/team executives who are law school graduates (click here for Greg's post; click here for Geoff's post). Based their posts and accompanying reader comments, here is a list of other managers/coaches/team executives who are lawyers:

Mike Leach, former Texas Tech football coach (Pepperdine University School of Law, J.D., 1982)

Quin Synder, Lakers assistant coach/former Missouri men's basketball coach (Duke Law School, J.D., 1995)

Craig Esherick, former Georgetown men's basketball coach (Georgetown University Law Center, J.D., 1982)

Rick Neuheisel, UCLA football coach (University of Southern California School of Law, J.D., 1988)

Bill Wright, Arizona men's tennis coach (Denver University Law School, J.D., 1963)

Terry Bowden, North Alabama football coach/former Auburn football coach (Florida State University College of Law, J.D.)

Theo Epstein, President of Baseball Operations of the Chicago Cubs (University of San Diego School of Law, J.D.)

Larry Lucchino, President and CEO of the Boston Red Sox (Yale Law School, J.D.)

Brian Burke, President and general Manager of the Toronto Maple Leafs (Harvard Law School, J.D., 1981)

Mike Zarren, Assistant General Manager of the Boston Celtics (Harvard Law School, J.D., 2005)

George McPhee, General Manager of the Washington Capitals (Rutgers School of Law, J.D., 1992)

Jason Levien, former Assistant General Manager and Senior VP of the Sacramento Kings (University of Michigan School of Law, J.D.)

Feel free to add others in the comments. I'm sure there are plenty more.

Catching up with Sports Law Links and Sports Law News

2011-10-22T13:54:00.000-04:00

* Rick Jackoway of Missouri Lawyers has a fantastic piece on how the Spirits of St. Louis became the most profitable franchise in sports. Geoff Rapp and UVA Law and Marquette Law Professor Gordon Hylton - who is easily the best historian of sports law - are interviewed for the story.

* I was interviewed on NBA TV to talk about the lockout and legal issues that could emerge. Also discussed this topic on Baltimore WNST.

* What could be the legal fallout of University of Missouri trying to leave the Big 12?

* Scott Judson, Co-Chair of the Entertainment and Sports Law Society at UC Davis School of Law, lets me know that on Wednesday, October 26, his organization will be hosting Woodie Dixon, General Counsel of the Pac-12 to speak about conference realignment and the newly-formed Pac-12 Nextwork. The event is open to the public, so if you're in the Sacramento/Bay Area, it sounds like a great event. For more info, click here.

* Alex Bard of American University Washington College of Law's Sports and Entertainment Law Society, lets me know of this upcoming event on Thursday, October 27:

What: AU WCL's Sports and Entertainment Law Society is hosting a panel discussion regarding athlete-agent relationship and NCAA regulation. The panel will look at the agent-athlete relationship, NCAA regulation of athletes, and the impact of legislation.

Kevin Blackistone from ESPN will moderate the event. Panelists include Howard Shatsky (certified NFLPA agent and WCL professor), Mark Levin (Director of Salary Cap and Agent Administration at the NFLPA), and Patrick Nero (GWU Athletic Director).

For more information please go to http://www.wcl.american.edu/secle/fall/2011/20111127.cfm.
To register, please go to https://www.wcl.american.edu/secle/cle_form.cfm and select "10/27/2011: Out of Bounds: Tackling the Agent-Athlete Relationship From Amateur Athletics to the Pros."
Where: American University Washington College of Law
When: Thursday October 27, 4:00-5:30pm

* Alex Bard also has a new Note in the Labor and Employment Law Forum titled, "Strength in Numbers: The Question of Decertification of Sports Unions in 2011 and the Benefit of Administrative Oversight". Check it out - it's very timely.

* As always, Dan Fitzgerald has great stuff on Connecticut Sports Law and Darren Heitner and his crew have great stuff on Sports Agent Blog.

Sandra Day O'Connor College of Law at Arizona State University Sports Law Symposium

2011-10-17T11:51:00.000-04:00

Should be a great event - great work by student leaders Casey Johnson and Kellen Bradley putting it together:

2nd Annual Conference on Sports and Entertainment Law

The Sandra Day O’Connor College of Law at Arizona State University will host the 2nd annual Conference on Sports and Entertainment Law. Speakers and Panelists from all over the country will present and discuss the most critical issues in the fields of Sports and Entertainment Law. Keynote speaker is President of the Arizona Cardinals Michael Bidwill.

Date: Saturday, November 5th, 2011
Time: 9am – 5pm, followed by a reception for all attendees and speakers
Location: Armstrong Hall, Sandra Day O’Connor College of Law at Arizona State University Campus – Tempe, AZ

List of Speakers (click for more speaker biographies)

Registration Fees: (includes lunch)

Attorneys - $160 for up to 5hrs CLE + 1 Ethics Credit
General Public – $40
Law Student or ASU Professor – $10

Why don't more schools help their athletes go pro?

2011-10-16T16:19:00.004-04:00

I had a story last week on schools that provide counseling for athletes who go pro, featuring Boston College's Warren Zola (some of you will recognize him from this very site). Zola is a dean at the BC business school, and this is a niche he has carved out for himself after recognizing that many athletes are ill-prepared for the transition. Players like former BC lineman Anthony Castonzo, a first-round pick by the Colts, (pictured) said they wouldn't have been able to navigate the transition without help.

The most interesting part, to me, is how few schools -- about 25 percent, by some estimates -- provide the service. I would think it would be a nice recruiting tool to say to a recruit, "We'd like you to meet Warren. When the time comes for you to go pro, he's here to help you with everything you need." This would play right into the dreams of high schoolers, who all think they are destined for NFL stardom (or NBA, or MLB, etc.). It seems like it would help the schools, too, because having someone who knows the terrain can help avoid recruiting violations.

But only few schools have advisers in house, and some more hire outside consultants to manage the process. Ironically, the issue might be that the NCAA requires the advisers to be independent from the athletic department. While this removes much of the conflict of interest that could arise in the decision whether to leave early, it also takes away the most obvious source of funding for the position.

Zola has written about reform in college athletics before, including this law review article where he spells out the issues in the Professional Sports Counseling Panels, as they're called in the NCAA bylaws.

John Calipari and Derrick Rose settle ticket devaulation lawsuit

2011-10-12T17:39:00.002-04:00

Why did John Calipari and Derrick Rose agree to this settlement with University of Memphis ticket holders who filed a lawsuit claiming that the NCAA's vacating of its 2007-08 Final Four season resulted in the devaluation of their tickets? Color me surprised. This lawsuit probably would have been dismissed; instead, the settlement probably makes more of these lawsuits likely to be filed. Mark Conrad and I speak with Kyle Veazey of the Memphis Commercial Appeal about it. Here are excerpts:

* * *

The three Memphis-area attorneys who pursued former University of Memphis coach John Calipari and guard Derrick Rose with threats of legal action probably haven't inspired a new trend, sports law experts say.

But Michael McCann, a professor at Vermont Law School and sports law columnist at SI.com, wouldn't rule out at least a few attempts. "Other fans are going to see this and say 'It sort of worked there,'" McCann said. "They were able to secure a settlement. I don't think it's going to give rise to courts sanctioning this, but I think it could give rise to others wanting to file a lawsuit."

That's how it paid off in May 2010 for local attorneys Martin Zummach, Frank L. Watson III and William Burns. They threatened a lawsuit against Calipari, Rose and U of M athletic director R.C. Johnson, claiming the NCAA's vacating of its 2007-08 Final Four season resulted in the devaluation of their tickets.

Calipari and Rose agreed to pay the attorneys $100,000. Calipari also agreed to donate $232,000, the approximate after-tax value of his bonuses connected with the season, to the Tiger Scholarship Fund. Rose agreed to consider making a donation sometime before 2015.
* * *
Mark Conrad, who teaches sports law classes at Fordham University, doesn't think the case will spawn a rash of copycats. "I certainly don't see it as a trend in pro sports ... and I certainly would be very surprised if you see this from universities," Conrad said.

Conrad noted that though the specifics of the Memphis case seemed unique, ticket-holder lawsuits aren't altogether uncommon. He said they're usually unsuccessful, too.
* * *
Both Conrad and McCann were stunned at the Memphis settlement.
"I was like, 'wow,'" McCann said. "The lawsuit, the claims did not seem very strong and I'm surprised that the defendants -- Calipari, Derrick Rose -- that they would agree to pay anything."

McCann said he anticipated that the case, if it had ever been filed, would have been dismissed.

But even with the perceived unlikelihood of its success, such a case would have its costs -- "at the very least, stress, cost, retaining a lawyer, time. Time for a coach, obviously, is really valuable."

New York Law School Third Annual Sports Law Symposium

2011-10-10T15:17:00.001-04:00

I look forward to joining many friends and colleagues at New York Law School's upcoming sports law symposium. It should be an awesome event. Great work by Elliot Solop, founder/EIC of The Sports Tomato, in putting it together.

The New York Law School Institute for Information Law and Policy and the New York Law School Sports Law Society

Presents:

The Third Annual Sports Law Symposium

Date: Friday, November 4, 2011

Location: New York Law School, 185 West Broadway, NY

Rooms: 2nd Floor Events Center, W402, W420

Time: 12:30pm-8pm

Industry leaders will engage in panel discussions involving current legal issues in the sports industry including the legal infrastructure of developing and growing professional sports leagues, amateurism issues in collegiate sports, intellectual property management of sports and entertainments brands, and athlete agent regulation and enforcement. Panelists will also offer perspective on breaking into the legal side of the sports industry. A networking reception will follow the day’s events.

Panels:

-Panel 1: Overview of Current Legal Developments in the Sports Industry

-Breakout Session 1: Financial and Tax Considerations in Representing Professional Athletes

-Breakout Session 2: Intellectual Property Issues in Sports

-Breakout Session 3: Athlete Agent Regulation and Enforcement

-Panel 2: Legal Infrastructure of Developing and Growing Professional Sports Leagues

-Panel 3: Amateurism Issues in Collegiate Sports

-Panel 4: Breaking Into the Sports Industry

-Networking Reception

Panelists:

Jason Belzer - President, Global Athlete Management Enterprises, Inc.

Andrew Bondarowicz - President, Aregatta Group, Inc.

Allison Cantor - Assistant Counsel, ESPN

Mark Conrad ’81 - Associate Professor of Business Law, Fordham University, Adjunct Professor of Sports Law, New York Law School

George Daniel - Commissioner, National Lacrosse League

Marc Edelman - Assistant Professor of Law at Barry University’s Dwayne O. Andreas School of Law

Dimitrios Efstathiou - Senior Counsel, Major League Soccer

Andrew Fine - Director of Marketing and Broadcasting, RLR Associates

David Fish - NFLPA Certified Agent, Adjunct Professor of Law, New York Law School

David Gross - Commissioner, Major League Lacrosse

Darren Heitner - Founder of Sports Agent Blog, President of Dynasty Sports LLC

David Mayer - Counsel, ESPN

Kevin Matz - Managing Member, Kevin Matz & Associates PLLC

Michael McCann - Sports Illustrated Legal Analyst, NBATV Legal Analyst, Professor of Law, Vermont Law School

Tim McIIwain ’95 - Partner, McKenna McIlwain, LLP

Robert Raiola - CPA, Sports & Entertainment Group Manager at Fazio, Mannuzza, Roche, Tankel, LaPIlusa, LLC

Katherine Salisbury - President, Friedman & Salisbury Sports Management LLC

David Soskin ’08 - Assistant Counsel, ESPN

Mike Zarren - Assistant General Manager and Associate Team Counsel, Boston Celtics

Warren Zola - Chair, Professional Sports Counseling Panel, Boston College

CLE credits will be offered.

For more information on the event, please contact Elliot Solop at essolop@gmail.com.

Raiders owner Al Davis dies at 82

2011-10-08T18:52:00.004-04:00

Al Davis, the owner of the Oakland-Los Angeles-Oakland Raiders, has died, ending one of the more remarkable careers in sports _ and sports law. He was a mixture of George Steinbrenner (who was also born on the Fourth of July), Mark Cuban, Charlie Finley and Vince Lombardi -- a coach, owner, businessman, general manager and fan with an insatiable desire for winning. But he was also a little bit Curt Flood (or at least Andy Messersmith) who was willing to take on his fellow owners in court, suing for the right to move his team from Oakland to L.A. and back, as told in this obituary by my AP colleague Josh Dubow, who covers the team.

Davis was also the AFL commissioner before the merger that helped shape the modern NFL. So I ask: Is there another figure who is responsible for as much sports jurisprudence?

The "Karen Murphy Case" - European Soccer, Television Broadcasts, Competition Law, and Decoder Cards

2011-10-07T09:00:00.000-04:00

Below is a guest post by Tassos Kaburakis.

On October 4, 2011, the European Court of Justice (ECJ) delivered an important decision in a consolidated case dealing with broadcasting rights, competition, and European Union (EU)-wide intellectual property issues [Football Association Premier League and Others (C-403/08 and C-429/08)… a.k.a. the Karen Murphy case].

Several pub owners in the United Kingdom (UK) have been circumventing the exclusive license, which the Football Association Premier League (FAPL) has signed with BSkyB and ESPN (£1.78 billion for the rights to broadcast Premiership matches in the UK from 2010 to 2013). A Sky subscription that would allow public viewing of FAPL games would cost approximately £700*. The pub owners (including Karen Murphy) opted not to pay the high fees and instead purchased foreign satellite decoder cards and individual subscription cards from Greece, for a fraction (10%) of the Sky subscription cost.

Regardless of the fact UK pub owners utilized these foreign decoding devices in unauthorized fashion, breaching terms of use by submitting false residence addresses, the ECJ focused on European consumers’ preemption from freely engaging in the purchase of goods and services across state borders, thus declaring that restrictions on the territorial range within which one would have to use a certain subscription service were in violation of EU Law. Namely, any exclusive licenses, as well as national legislation protecting such licenses, are found in violation of the freedom to provide services and fair competition rules, if they create artificial trade barriers, fix prices by creating national borders EU Law abolishes, and prevent consumers from using a service beyond certain national borders. The EU Satellite Broadcasting Directive and the Television without Frontiers Directive in particular declare that broadcasts across state borders and a common market distribution are key avenues toward the realization of European integration.

Importantly, the ECJ found no justifications on grounds of public policy for such restrictive practices. On one hand, the Court found no intellectual property rights by means of EU-wide Copyright for football matches themselves (albeit still protectable under member state law), rather only found particular aspects of the broadcasts copyrightable, e.g. the FAPL anthem, highlights, and various graphics. For such protectable aspects of a broadcast, one still needs to seek permission from the rights’ owner prior to public viewing. On the other hand, such restrictive practices were not justified either on grounds of protecting sporting interests, such as attracting game attendance, as other means (i.e. “closed periods” during which contracting parties would not broadcast Premiership games to encourage attendance) may accomplish such goals in less restrictive fashion than complete preemption of cross-border services’ utilization.

The Court’s use of the “specificity of sport” Art. 165 of the Treaty establishing the Functioning of the European Union (TFEU) is significant. Practices in favor of sport organizations should not go beyond what is necessary to accomplish the goals pursued, and in any event the Court assumes a position where the balance generally should lean in favor of upholding fundamental EU Law principles.

Talking NBA Lockout

2011-10-06T10:14:00.000-04:00

Tired of the NBA lockout? If so, you probably won't enjoy my interview with Chris Townsend of 95.7 FM San Francisco. But if not, please check it out.