Sports Law Blog

Sports Law Blog

All things legal relating
to the sports world...

Friday, May 24, 2013

"Sport as Speech" and Non-Sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

-- Posted by Howard Wasserman @ 5/24/2013 03:58:00 PM -- Comments (0) -- Post a Comment

Wednesday, May 22, 2013

New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:

Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)

Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)

Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)

Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012)

Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

-- Posted by Geoffrey Rapp @ 5/22/2013 01:07:00 PM -- Comments (0) -- Post a Comment

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses. The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated." While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:

We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted) If anything, the policy considerations in this case weigh in favor of [the athletes]. As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit. The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use. It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling. But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question. The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players.

-- Posted by Rick Karcher @ 5/22/2013 07:33:00 AM -- Comments (2) -- Post a Comment

Monday, May 20, 2013

Warren Zola article in Boston Globe Magazine

Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid. Be sure to check it out.

-- Posted by Michael McCann @ 5/20/2013 02:49:00 PM -- Comments (0) -- Post a Comment

Saturday, May 18, 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V

Sports Law Blog is publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. These posts appear on Saturdays. First post can be read at this link, the second at this link, the third at this link, and the fourth at this link. Here is the fifth:

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"Pros or Cons" Thoughts For The Modern "Sports Attorney"

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

(ARTICLE #5)

Know Your Role

On occasion, an oversized lineman may find the football bouncing into his arms on a fortunate bounce from a fumble to which he may then lumber anywhere from a few to more than he thought he was able, yards into the end zone for an awe-inspiring score. However, this is not his expertise and far from the position assigned which he has spent in years of training, practice and preparation.

So what happens when you find yourself with the "perfect client" but the client needs work in a field in which you lack essential experience? Do you run with it and hope for the best? In the alternative, do you take a look at the clock, use your last time out and confer with the coach?

The prior installments should suggest the answer. Although a lawyer need not have sufficient competence to handle a matter before taking it on, the lawyer must either be prepared to acquire the competence on a timely basis or to bring in someone who already has the competence. And just as quarterbacks do not necessarily make the best tackles, so too a lawyer-client team may be best served if each player fills the role, and only the role, for which that player has the greatest expertise. An attorney's job is to put the client's goals first and foremost. And even from the attorney's selfish point of view, time spent by an attorney to learn what other lawyers already know may be time that the lawyer simply cannot bill to the client. In other words, both Al and Mega may be best served if Al is, and remains, quarterback rather than trying to play eleven positions at once.

-- Posted by Michael McCann @ 5/18/2013 10:00:00 AM -- Comments (0) -- Post a Comment

Tuesday, May 14, 2013

Sports Illustrated: The 15 Most Influential Sports Agents

For Sports Illustrated, I write and discuss who I consider to be the 15 Most Influential Sports Agents.

Here's my entry for Scott Boras, #2:

2. Scott Boras

Boras Corporation President
60 years old

You know you've made it when teams' personnel decisions are shaped by whether players have you as their agent. And you know you've really made it when a league changes its draft rules because they don't know how to beat you in a free market. "He's a Boras client" is a phrase uttered by baseball executives with irritation, fear and admiration. It means the player is likely to test the market whenever he can become a free agent and will probably go to the highest bidder. It also means the player's advocate will make a sales pitch like no other. Scott Boras negotiated Alex Rodriguez's 10-year, $252 million deal with the Rangers, Barry Zito's 7-year, $126 million deal with the Giants and literally dozens of other free-agent contracts that seemed over-priced then and now. He also arranged for top draft picks -- including J.D. Drew and Jason Varitek -- to play in independent baseball leagues as a way of obtaining negotiation leverage. Baseball has instituted new rules capping how much teams can spend on drafted players, rules which Boras derided as "mockery" but were in fact a tribute to him.

To read the rest of the list, click here.

-- Posted by Michael McCann @ 5/14/2013 08:46:00 PM -- Comments (0) -- Post a Comment

Saturday, May 11, 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part IV

Sports Law Blog is publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. First post can be read at this link, the second at this link and the third at this link. Here is the fourth:

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"Pros or Cons" Thoughts For The Modern "Sports Attorney"

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

(ARTICLE #4)

The Lateral Pass (Association and Networking)

The quarterback throws, the running back runs, and the kicker kicks. Each member of a team serves a distinct and valuable purpose. Although a sports attorney may at times need or be tempted to wear a number of different hats, it is important to remember which hats are the most important, which are necessary, and which are problematic.

In our continuing hypothetical, Mega Star's requests of Attorney Al include the organization of Mega's motivational speaking business and the filing of Articles of Incorporation for Mega's motivational speaking business in Delaware and legal advice in connection with Mega's purchase of a vacation home in Florida.

As a first question, one might consider whether Al already has the legal competence to handle these Delaware and Florida matters. If not, then he will either have to take the time to learn enough law to make himself competent or, alternatively, to associate with someone who already has the requisite degree of competence.

It does seem highly unlikely, however that Delaware would view Al's formation of a Delaware corporation as the unauthorized practice of Delaware law. If Delaware law did so, the state could not play the preeminent role that it plays in corporate formation on a national level. Whether Al's involvement in a single real estate transaction for a non-Florida resident would provide him with sufficient Florida contact to subject him to the Florida RPCs would have to be addressed under Florida RPC 4-8.5, though it seems to us that that should not be enough. It should be clear, however, that Al's likelihood of being subject to the Florida RPCs will be materially greater if he regularly helps clients buy Florida real property.

In our next and final installment in this series, we will look at a further real reason why Al may want to "share the glory."

-- Posted by Michael McCann @ 5/11/2013 10:00:00 AM -- Comments (0) -- Post a Comment

Thursday, May 09, 2013

Ending home-game blackouts?

Introducing legislation is easy, enacting it is hard. So an all likelihood this is not going anywhere. John McCain today introduced the Television Consumer Freedom Act of 2013, which primarily would allow cable companies to offer channels a la carte, rather than exclusively in packages.

But buried in § 5 of the bill is a provision that would eliminate blackout regulations for games played in stadiums that were financed, in whole or in part, by federal, state, or local government. This would repeal a portion of the Sports Broadcasting Act of 1961, passed at the urging of NFL Commissioner Pete Rozelle, which allows teams to blackout home games in local markets. McCain described the practice of preventing taxpayers from watching games played in arenas that their tax dollars had paid for as "unconscionable." Many of my ideas on fan speech depend on legal consequences and limitations attaching to public financing of sports venues, so I am glad to see the bill relying on the same idea.

Of course, most legislation is introduced for show and there is no apparent groundswell of public or legislative support for this, so I do not expect the bill to go anywhere. And it has more than a little whiff of McCain trying to play populist maverick against the broadcast/cable industries (recall that McCain criticized radio stations for the boycott of the Dixie Chicks in 2003). Still, it is an interesting proposal to watch.

-- Posted by Howard Wasserman @ 5/09/2013 10:34:00 PM -- Comments (0) -- Post a Comment

O'Bannon Case Update: Discovery

The O'Bannon v NCAA case crawls along. Presently the courts are trying to determine the scope of discovery leading up to the trial itself. There was a hearing yesterday (May 8th) in San Francisco before U.S. Magistrate Judge Nathanael Cousins, in part, to determine from whom the plaintiffs would be allowed to take depositions. This is an important step in the process as the case heads progresses towards the June 20th hearing before U.S. District Judge Claudia Wilkins on class certification.

In terms of depositions, Judge Cousins decided that:

The plaintiffs MAY depose:

1. Big Ten commissioner Jim Delany
2. Horizon League commissioner Jon LeCrone
3. Frenso State president John Welty

At this time, the plaintiffs MAY NOT depose:

1. Texas athletic director DeLoss Dodds
2. Missouri Valley commissioner Doug Elgin
3. Big 12 commissioner Bob Bowlsby
4. NCAA managing director of research Todd Petr.

For a detailed report on yesterday's proceedings, and comments from both sides, you can read the excellent piece by Steve Berkowitz of USA Today here.

Additionally, Jon Solomon of the Birmingham News write about the fact that a former EA Sports employee admitted in his deposition that the programmers absolutely tried to replicate college players.......conflicting an initial defense offered by the NCAA. In his story, which can be read here, Solomon says:

"Jeremy Strauser, who worked at EA from 1995 until 2011, testified last December that computer-game avatars were linked to specific player identifying numbers and biographical information, such as team depth charts, was used to make the game realistic. "We generally tried to make the players perform as their real life counterparts, short of their name and likeness," Strauser testified."

Stay tuned.....

-- Posted by Warren K. Zola @ 5/09/2013 12:00:00 PM -- Comments (0) -- Post a Comment

Sports, video, and procedural rules

This story captures why people like me like using sports to illustrate legal ideas.

1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.

2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.

-- Posted by Howard Wasserman @ 5/09/2013 10:32:00 AM -- Comments (0) -- Post a Comment

Legal Analysis of Vijay Singh v. PGA Tour

I have an article for Golf.com on Vijay Singh's lawsuit against the PGA Tour over his would-be suspension for using deer antler spray (which he admitted to in a Sports Illustrated story by David Epstein and George Dohrmann).

Here's an excerpt of my article:

He also takes sharp aim at what he portrays as a disingenuous right to appeal the suspension. According to the lawsuit, the PGA Tour told Singh in February that if he appealed the 90-day suspension, the suspension would not begin until after an appeal was heard in May and was found unsuccessful. Pending the appeal, Singh could continue to play on the PGA Tour. Singh, however, claims the PGA Tour told him that any money he earned during the pending period would have to be put in escrow and subject to forfeiture if he lost the appeal.

In other words, if Singh appealed and lost, he would have lost more than 90 days’ worth of money: he would have forfeited any money he earned while pending appeal, plus money he could have earned over the 90-day suspension.

In Singh’s view, the message was clear: he would be punished for appealing. Singh insists no other golfer has been subjected to this arrangement and that it constituted bad faith.

To read the rest, click here.

-- Posted by Michael McCann @ 5/09/2013 09:05:00 AM -- Comments (0) -- Post a Comment

Tuesday, May 07, 2013

Flood v. Kuhn Reenactment

Readers in the Washington, D.C. area may be interested in attending an upcoming event organized by the Supreme Court Historical Society where the oral argument from the 1972 Supreme Court case of Flood v. Kuhn -- affirming baseball's historic exemption from antitrust law -- will be reenacted. The event is scheduled to be held at the Supreme Court on Wednesday May 22nd, with Justice Sonia Sotomayor presiding. More information for the event, which costs $75 to attend, is available here.

-- Posted by Nathaniel Grow @ 5/07/2013 07:00:00 AM -- Comments (0) -- Post a Comment

Monday, May 06, 2013

The truth about past relationships

NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.

Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?

-- Posted by Howard Wasserman @ 5/06/2013 02:35:00 PM -- Comments (0) -- Post a Comment

Additional Thoughts on the Economics of College Athletics

To follow up on Warren's and Rick’s informative posts, I thought I’d add a couple of somewhat countervailing thoughts to the discussion (I haven't had a chance to fully digest the expert reports linked to in Warren's post, so some of these points may be addressed in those filings). I’ll preface this by stating that I completely agree with the critics of the NCAA that the organization is woefully in need of significant reforms, and also agree as a matter of fairness that college athletes deserve a greater share of profits they generate.

Nevertheless, it seems that the debate over whether to pay college players often broadly generalizes the issue across all 340+ Division I schools. In reality, though, the profitability of university athletic departments varies greatly across Division I. While the SEC, ACC, Big 10, Big 12, Pac 10, and former Big East programs all undoubtedly make significant profits when their football and basketball revenues are accurately accounted for, that is not the case for many of the so-called mid-major and low-major Division I schools. For instance, USA Today compiled a chart for all Division I public schools listing the percentage of each athletic department’s funds that came directly from the college or university from 2006-2011:

http://usatoday30.usatoday.com/sports/college/story/2012-05-14/ncaa-college-athletics-finances-database/54955804/1

As the USA Today chart reveals, as much as 70-80% of the athletic budgets for many mid- to low-major schools is diverted from other university funds (in many cases, coming directly from student fees). While this data is a little dated, I do not believe the situation has appreciably changed over the last two years. So I think there is some merit to the argument that paying college athletes would have a significant impact on the continued feasibility of many Division I athletic programs, as that added expense would likely make continued participation at the Division I level impractical, if not impossible, for many lower ranking Division I institutions.

Of course, one could easily imagine a scenario in which only those schools that make a profit in football or basketball would need to pay their players. But that would, for better or worse, undoubtedly result in a very different structure for college athletics than the one we have today. For instance, it would almost certainly entail splitting the so-called BCS conferences off from most of the rest of the mid-major and low-major conferences – effectively creating an additional tier within Division I – as it would be nearly impossible for these lower ranked schools to effectively compete with programs that pay their players. As a result, I fear that at a minimum the NCAA college basketball tournament would lose a lot of its current appeal – at least in the early rounds – without the participation of the Cinderella teams that make the first weekend of the tournament so exciting.

Moreover, I suspect that paying basketball and football players would also result in a number of schools (including many of those belonging to BCS conferences) reducing the number of non-revenue generating sports that they offer. This ripple effect seems to go overlooked at times in these discussions.

None of this is necessarily intended to argue that these considerations should outweigh the fairness issues involved in depriving college football and basketball players a greater share of the revenue they produce. I'm merely contending that paying college athletes would in fact have a profound effect on college athletics in a number of ways that, it seems to me, are not always fully discussed in this on-going debate.

Finally, on a different note, I can't help but wonder how college basketball and football players themselves come down on these issues. In my (admittedly limited) experience, many athletes do not necessarily want a significant share of the revenues they generate, but rather would simply like to receive an additional stipend enabling them to live more comfortably on campus, and perhaps receive some financial assistance so that their immediate family and friends -- who can't otherwise afford it -- can travel to see them compete in big games. In fact, my sense is that many athletes don't mind that a significant share of the profits they produce help subsidize the vast array of non-revenue generating sports programs at most D-I schools. I'm not sure if anyone has completed a survey of college athletes' perspectives on these issues, but I think that the data from such an undertaking would be enlightening.

-- Posted by Nathaniel Grow @ 5/06/2013 07:00:00 AM -- Comments (0) -- Post a Comment

Saturday, May 04, 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part III

Sports Law Blog is publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. The first one is available at this link and the second at this link. Here is the third one:

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"Pros or Cons" Thoughts For The Modern "Sports Attorney"

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

(ARTICLE #3)

Know the Rules - "The Immaculate Misconception" (UPL)

One of the most dramatic moments in football is when a wide receiver leaps for a long pass in the end zone. His arms outstretched, while attempting to drag his feet to stay in bounds, he maintains control long enough to complete a touchdown. Similarly, a sports attorney may find him/herself having to stretch to their capacity for the benefit of the client, while staying within the limits of the law (ethical or otherwise).

The determination of what is and isn't the practice of law is not subjectively determined by the attorney, but rather by the jurisdiction to which activity transpires. In our sample scenario, Mega Star asks Attorney Al to negotiate possible contracts with the California and Texas teams. Such negotiations may well require Al (and certainly Mega, if he signs) to travel to those states and could, for that matter, lead to contracts governed in whole or in part by the law of those states.

Suppose, then, that Al negotiates and Mega signs a contract with either the California or Texas team, and suppose further that all reasonable minds would agree that the choice of ethics law rules would require the application of California or Texas law. Does that mean that Al would be guilty of the Unauthorized Practice of Law in either of those states? Not necessarily.

In either jurisdiction, the negotiation of a contract for a third party would likely be considered a part of the practice of law. In other words, the practice of law is not limited to litigation. At risk of some potential oversimplification, it also includes advising others for a fee about their contract rights in negotiations. Almost all states now recognize at least some degree of "temporary" in-state lawyering which does not violate the state's Unauthorized Practice rules. In California, for example, Al might have a solid argument that since his client, Mega, was a New York resident at the time and since he was only occasionally in California for purposes of those negotiations, he should not be subject to the California RPCs. See, e.g, Estate of Condon (1998) 65 Cal. App. 4th 1138, 76 Cal. Rptr. 2d 922. See also, 2013 California Rules of Court, Rule 9.48.

In Texas, the result may be less clear, but one can at least hope that the same result should follow. Cf. Texas RPC 5.05. To the extent that Al has doubts under either state, he certainly could cut his risk by associating a lawyer licensed in the state in question.

-- Posted by Michael McCann @ 5/04/2013 10:00:00 AM -- Comments (0) -- Post a Comment

2. Scott Boras

Boras Corporation President 60 years old

Boras Corporation President
60 years old