Sports Law Blog
All things legal relating
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Monday, January 26, 2015
Did a Patriots staffer cause Deflategate?

Another surreal day in Deflategate. I have new article tonight for Sports Illustrated on allegations against a Patriots locker room attendant and how the Patriots are prepared to fight back. Hope you can check it out.

Are Retired NFL Players Making a Mistake Opting out of NFL Concussion Settlement?

In a new article for Sports Illustrated, I look at the advantages and disadvantages for retired players and families who opt out of the settlement and pursue their own lawsuits.

Saturday, January 24, 2015
Legal Fallout of Bill Belichick's Science Defense and Response by NFL and NFLPA

I have a new column for Sports Illustrated tonight on Bill Belichick's press conference today on Deflategate. He offered a detailed and I think persuasive defense, but NFL and NFLPA will still have questions. Hope you can read the piece. I was also a guest on Don Lemon's CNN Show to talk about Deflategate:

Friday, January 23, 2015
McCants v. UNC: New academic fraud lawsuit filed against UNC and the NCAA

In a new Sports Illustrated article, Jon Wertheim and I break down McCants v. UNC and what it means for college sports.

Wednesday, January 21, 2015
A Legal Analysis of Deflategate

Just when the Patriots thought they were all set for the Super Bowl, Deflategate happens. My take for Sports Illustrated.

Next Friday: Charleston Sports Law Symposium

Several of our contributors, including Warren Zola and Timothy Liam Epstein, will be featured panelists at Charleston Law School's Sports Law Symposium next Friday, January 30, 2015. Titled "Under Further Review: A Legal Look at the World of Sports," this one-day conference includes several timely panel discussions on, among other things, NCAA reform and the future of college athletics, concussions, injuries and medico-legal issues in sports, and the interplay between professional sports league discipline and the due process rights of players and owners. Warren Zola will be on two panels (including the one on NCAA reform), and is moderating the panel titled "League Scandals: Disciplinary Powers and Due Process, which features Chicago-based sports law attorney Scott Andreson, sports business and tax expert Robert Raiola, and me as panelists. The keynote speaker of the symposium is Megha Parekh, Senior Vice President and General Counsel of the NFL's Jacksonville Jaguars. For more information about the symposium, including how to register, click here. Hope to see you next Friday.

Under Further Review:
A Legal Look at the World of Sports

January 30, 2015
Charleston Music Hall, 37 John Street
The Seventh Annual Law & Society Symposium

Co-Sponsored by the Charleston Law Review and the Richard W. Riley Institute of
Government, Politics and Public Leadership at Furman University

Keynote Address
Megha Parekh

Senior Vice President, General Counsel
Jacksonville Jaguars

Panel One

Reform in College Athletics and
the Future of the NCAA
Warren ZolaChair, Boston College's Professional Sports Counseling Panel & Executive Director of the Office of Corporate and Government Affairs
Angela LittlejohnLegal Advisor, Furman University
Timothy Liam EpsteinPartner, SmithAmundsen

Panel Two

Concussions, Injuries, and
Medico-Legal Issues in Sports
H. Hunt Batjer, M.D.Former Co-Chair, NFL's Head, Neck, and Spine Committee
David Geier, Jr., M.D.Director, East Cooper Sports Medicine
Timothy Liam EpsteinPartner, SmithAmundsen

Panel Three

League Scandals: 
Disciplinary Powers and Due Process
Daniel WallachShareholder, Becker & Poliakoff
Scott AndresenFounderAndresen & Associates P.C.
Robert Raiola, C.P.A., Sports and Entertainment Group Manager, O'Connor Davies LLP

Tuesday, January 20, 2015
Ninth Circuit Upholds Baseball's Antitrust Exemption

On Thursday, the Ninth Circuit Court of Appeals affirmed the district court's dismissal of the antitrust lawsuit brought against Major League Baseball by the city of San Jose, California.  San Jose filed the suit back in June 2013, alleging that MLB's refusal to approve the relocation of the Oakland Athletics to the city violated the Sherman Act.  MLB has had the proposed relocation under consideration for nearly six years, but has failed to act in large part because the San Jose territory is currently assigned to the San Francisco Giants, who have refused to allow the move.  In October 2013, district court Ronald M. Whyte dismissed San Jose's case, finding that it's antitrust claims were covered by baseball's antitrust exemption. 

A unanimous, three-judge panel of the Ninth Circuit affirmed this ruling on Thursday.  In the court's opinion (available here), Judge Alex Kozinski held that baseball's antitrust exemption clearly applies to its relocation policies, since those policies are central to the baseball business.  Moreover, the court also determined that the Curt Flood Act of 1998 - the act giving major league players the right to file antitrust suits against MLB - forecloses San Jose's suit.  In particular, the Ninth Circuit highlighted a provision in the act stating that it "does not create, permit or imply a cause of action by which to challenge under the antitrust laws . . . franchise . . . relocation."  The court held that this language confirmed that Congress did not intend for the Sherman Act to apply to MLB's relocation policy.

For more on the Ninth Circuit's decision, fellow Sports Law Blog contributor Ed Edmonds and I discussed the case on Friday on Bloomberg Radio.  Our discussion is available here.

Meanwhile, on a related note, I discussed this month's 100th anniversary of MLB's first antitrust challenge - the Federal League's 1915 lawsuit against the American and National Leagues argued before Judge Kenesaw Mountain Landis in Chicago - on the NPR program Only a Game this weekend.  That interview is available here

Friday, January 16, 2015
Is the NFL's eligibility rule vulnerable to legal challenge?

On SI Now today, I talk about a potential legal challenge to the NFL's eligibility rule, which requires that players be three years out of high school. I reference the extraordinary work of Alan Milstein, who was interviewed in Time Magazine on this topic.

Sunday, January 11, 2015
This Friday: 5th Annual Duke Sports & Entertainment Law Symposium

If you're in the Raleigh-Durham area this Friday, January 16th, I strongly encourage you to attend the Fifth Annual Sports & Entertainment Law Symposium, sponsored by Duke University School of Law. This one-day event offers panel discussions covering a wide range of hot topics in the world of sports and entertainment law. There will be panels on stadium financing and development, publicity rights of college athletes, personal conduct policies of sports leagues and schools (e.g., Adrian Peterson, Ray Rice, Jameis Winston), sports betting legalization, and daily fantasy sports. The symposium concludes with a reception at 4:30 pm. Registration is free! For more information about the symposium, including how to register, click here. The symposium schedule appears below. Hope to see you Friday.
Schedule of Events
8:30 Registration Breakfast – 3rd Floor Lobby, Duke Law School
9:00-10:00: Financing and Development of Professional Athletic Venues:
Understanding the legal issues and economic tradeoffs between the public and private sectors when determining how and when to build a new stadium are key to all sports development and growth strategies. Given the sky-rocketing cost of team operations, the need to build new revenue generating venues can motivate a team’s desire to relocate if local authorities are reluctant to subsidize construction costs or facilitate stadium development. New stadium construction involves many legal issues—real estate, tax, public zoning, permitting and environmental impact—all of which must be vetted, debated and resolved before a new facility can be built. This Interdisciplinary panel will discuss the complexities of facility development as well as highlight the potential economic benefits and problems that can emerge throughout the process.
  • Mark Conrad, Director, Sports Business Program, Fordham Gabelli School of Business
  • Victor Matheson, Professor of Economics, College of the Holy Cross
  • Irwin Raij, Co-Chair Sports Industry Team, Foley Lardner
10:00-11:00: Royalties in the Modern Music Industry
The Royalties Panel will address how the online and digital world has changed the way music is licensed, particularly how this change has affected songwriter, composer, and music publisher fees, and back-end royalties associated with music projects.​
  • Jennifer Jenkins, Duke Law (moderator)
  • Coe W. Ramsey, Brooks Pierce
  • Sean Peace, CEO & Co-founder of Royalty Exchange
  • Robert Monath, Robert Monath Law
  • David Oxenford, Wilkinson Barker Knauer
11:00-12:00: Misappropriation of College Athletes’ Rights
This Misappropriation of College Athletes’ Rights panel will discuss the publicity rights of student athletes and the recent tension with the NCAA, publishers, and other parties regarding the use of athletes’ name, image, or likeness.
  • Gabe Feldman, Director, Sports Law Program, Tulane University Law School
  • Robert Carey, Hagens Berman Sobol Shapiro, LLP
  • Stuart Paynter, The Paynter Law Firm
  • Mark Conrad, Director, Sports Business Program, Fordham Gabelli School of Business
 12:00-1:00: Lunch – Provided by Q Shack
 1:00-2:00: The Importance of Personal Conduct Policies for Schools, Teams, and Leagues
In 2014 the NFL faced significant controversy regarding its handling of a number of highly publicized cases, including Ray Rice and Adrian Peterson. Criticism of the NFL often focused on the importance of fair and sensible personal conduct policies and procedures to protect the league, and its teams and members; the powers of the commissioner; violations of the CBA and violations of due process. This panel will focus on the importance of personal conduct policies and procedures for both professional and collegiate athletic organizations.
  • Paul Haagen, Professor, Duke Law (moderator)
  • Scott Andresen, Andresen & Associates
  • Daniel Wallach, Becker & Poliakoff
  • John Hogan, The Law Offices of John V. Hogan
  • Todd Clark, Professor, North Carolina Central School of Law School
 2:00-3:00: Impacts of the Supreme Court’s Aereo Decision
A significant cord-cutting trend has been developing among television consumers, as audiences are increasingly viewing live or time-shifted television exclusively through the Internet rather than cable. Aereo offered just such a service, allowing customers to watch free, over-the-air broadcasts through their website. Specifically, customers accessed Aereo’s website to choose their desired programming — Aereo then tuned antennas to the relevant stations, and captured and retransmitted the signal to their customers. The Supreme Court ruled against Aereo — the services provided were too similar to that of a cable system.
This holding amounted to a clear victory for broadcasters; Aereo‘s impact on technology and innovation is more unclear. Which technologies are now infringing because they are also similar to a cable service? The court declined to discuss cloud storage and network DVR, yet they are increasingly ubiquitous in the lifestyles of the average media consumer. Join our panelists as they discuss the impact of the Aereo decision and where they see the future of media entertainment and technology heading. 
  • Julia Ambrose, Brooks Pierce
  • John Kivus, Wood Jackson
  • Harry Cole, Fletcher Heald & Hildreth
  • Brandon Huffman, Stevens Martin
 3:00-4:00: The Line Between Fantasy Sports and Gambling
In 2014, an estimated 41 million people played fantasy sports in North America. The recent growth of daily fantasy sports websites, such as FanDuel, has led to large financial investments from venture capital firms and partnerships with professional leagues and teams. Yet the leagues are currently fighting to prevent the legalization of sports betting in New Jersey, as they have in other states. This panel will discuss what separates fantasy sports from gambling and what the difference means for sports leagues.
  • Daniel Wallach, Becker & Poliakoff
  • Robert Raiola, O’Connor Davies, LLP
  • Gabe Feldman, Director, Sports Law Program, Tulane University Law School
4:30 Reception: Duke Law Star Commons Mezzanine

The NFLRA & The NFL Playoffs

If you are unhappy with the officiating in the NFL playoffs this year blame the union—the NFL Referees Association. The NFLRA decided to use “all-star” crews, assigning the league’s highest rated officials to work playoff games. The obvious problem is that these crews haven’t worked any games together as a unit, and their ability to blend and communicate is causing problems.

The NFLRA rates officials during the year, and the highest graded individuals are selected to work the playoffs--but not with their regular season crew. How did this happen? Because this right was collectively bargained for by the union with the NFL during the 2012 labor negotiations.

For a detailed analysis of this decision, including the rules involved in the selection of officials, here’s a link to the piece in today’s Boston Globe by their fantastic NFL writer Ben Volin who follows in the footsteps of Greg Bedard and Will McDonough in this space.

Friday, January 09, 2015
The Mueller Report on Ray Rice and the NFL

I have an article on on the Mueller Report and what it means for the NFL, Roger Goodell and the Associated Press.

Wednesday, January 07, 2015
Oklahoma Courts are not the Field to Remedy a High School Football Referee Blunder

While there are some out there claiming that the recent “phantom flag” against the Dallas Cowboys was the right call, the majority of both fans and analysts (and not just those based in Detroit) are crying foul.  While the Lions will not get a replay of the game, the idea of replaying a game (or a portion of a game) due to a bad call is not unprecedented.  In some cases, the idea of a replay due to an official’s error makes its way to the courthouse.  The Oklahoma high school football playoffs were recently engaged in a clock-suspending standstill while a state court determined whether it had the ability to intervene in the aftermath of a grievous referee error.  Frederick A. Douglass High School sought the replay of either the final sixty-four seconds or its entire quarterfinal game against Locust Grove High School after the referees incorrectly negated a touchdown with a five-yard penalty that should have been assessed on the ensuing kickoff. 

Despite an apology and public admonishment of the mistake from the Oklahoma Secondary School Activities Association (OSSAA), many were left unsatisfied when the OSSAA concluded that a replay would not occur.  The OSSAA cited its concern for setting a precedent that allowed every on-field decision to be subjected to protest, appeal, and replay.

The Oklahoma City School District, on behalf of Douglass High, filed a lawsuit requesting a replay on the grounds that it was unreasonable for the OSSAA to not intervene after the referees admitted to not knowing the relevant penalty assessment.  As outrage mounted, District Judge Bernard M. Jones II issued a temporary restraining order, which postponed the impending semifinal playoff game involving Locust Grove.  Judge Jones noted, however, that the District faced a heavy burden to prove that greater injunctive relief should be granted.

Unfortunately for Douglass High and its supporters, precedent involving judicial intervention of high school athletics is not favorable.  Whereas NCAA rules permit replays in the face of serious referee error, there is no analogous high school provision.  Interestingly enough, the 2013 Oklahoma high school baseball playoffs were suspended for a month while a participating school tried to use state courts to challenge an ineligibility ruling made by the OSSAA. 

Ultimately, Judge Jones eliminated the possibility of a court-sanctioned replay after he found that the OSSAA had not violated or disregarded its policies in a manner that warranted injunctive relief.  In his order dismissing the claim, the judge emphasized that “it borders on the unreasonable” to believe that a court is “more equipped or better qualified than [the OSSAA] to decide the outcome of any portion of a high school football game.”  Moreover, Judge Jones reasoned:

"This slippery slope of solving athletic contests in court instead of on campus will inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of gaming officials — an unintended consequence which hurts both the court system and the citizens it is designed to protect."      

The entire order can be read here.

Maybe as a sign of karmic intervention, Locust Grove was ousted from the playoffs after losing to Heritage Hall High School when the semifinal game was finally played. 

I can see why a judge would be reluctant to simply reverse a win or a loss for a game that has already been played, but if there is an admission of a bad call by officials, and that bad call substantially altered the outcome of a game, why put an absolute bar on replaying the game if the teams are able to accommodate?  Unfortunately, I have personally heard language like this from judges on more than one occasion when trying to get injunctive relief for student-athletes and schools.  “Counsel, it is not my job to make line-ups,” or “I am a judge, and not a ‘super referee.’”  I well recognize that participation in extracurricular sports is a privilege, and not a right, and therefore not accorded the same levels of constitutional protection; however, with an ever increasing amount of money coming into sports, and the benefits and value of athletic scholarships continuing to increase, the judiciary needs to revisit the idea that athletic participation may warrant intervention prior to the professional levels.

Hat tip to law clerk, Ben Barnett, for his assistance on this.

Tuesday, January 06, 2015
New Book: Careers in Sports Law

Readers of Sports Law Blog regularly come to us for advice on how to land jobs working in the field. Recognizing the great interest among law students and practitioners in our practice area, Professor Geoffrey Rapp and I have written a book on Careers in Sports Law.

We believe the book provides a realistic depiction of how to try to break into the sports law field. The book also provides some suggestions about what to consider when applying to law school and selecting law school courses.

For those of you interested in pursuing a career in sports law, we encourage you to consider purchasing a copy of the book or asking your college/law school library or career counselors to acquire a copy so that you can borrow it for long enough to read the chapters most pertinent to you,

Wednesday, December 31, 2014
Michigan Legislation Prohibits College Athlete Unions

It is now illegal in Michigan for college athletes at any public university to form a labor union for purposes of collective bargaining.  No comment.

Saturday, December 27, 2014
Gutless educational administrators, Part 6,577 (Updated

This is pathetic and really depressing. (Note the title has been changed to indicate that the face of this decision is not the school's AD, but its principal).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

Sunday, December 21, 2014
Jameis Winston cleared in code of conduct hearing: what's next?

Florida State quarterback Jameis Winston has been cleared in his code of conduct hearing. What's next for his legal situation? I break it down on Sports Illustrated tonight with some outstanding contributions by Florida attorney Daniel Wallach. Hope you can read the piece.

Tuesday, December 16, 2014
Fighters file antitrust lawsuit against the Ultimate Fighting Championship

Current and former fighters have filed a potentially game-changing lawsuit against the UFC over salaries and UFC's business practices. Here's my analysis of the lawsuit for Sports Illustrated - hope you have a chance to check it out.

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:
No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.
Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

The best defense of athlete speech you will read

Courtesy of Cleveland Browns' Andrew Hawkins (he of the "Justice" t-shirt in Sunday's game that a Cleveland police union official labeled "pathetic"):

“I was taught that justice is a right that every American should have. Also justice should be the goal of every American. I think that’s what makes this country. To me, justice means the innocent should be found innocent. It means that those who do wrong should get their due punishment. Ultimately, it means fair treatment. So a call for justice shouldn’t offend or disrespect anybody. A call for justice shouldn’t warrant an apology.

“To clarify, I utterly respect and appreciate every police officer that protects and serves all of us with honesty, integrity and the right way. And I don’t think those kind of officers should be offended by what I did. My mom taught me my entire life to respect law enforcement. I have family, close friends that are incredible police officers and I tell them all the time how they are much braver than me for it. So my wearing a T-shirt wasn’t a stance against every police officer or every police department. My wearing the T-shirt was a stance against wrong individuals doing the wrong thing for the wrong reasons to innocent people.

“Unfortunately, my mom also taught me just as there are good police officers, there are some not-so-good police officers that would assume the worst of me without knowing anything about me for reasons I can’t control. She taught me to be careful and be on the lookout for those not-so-good police officers because they could potentially do me harm and most times without consequences. Those are the police officers that should be offended.

“Being a police officer takes bravery. And I understand that they’re put in difficult positions and have to make those snap decisions. As a football player, I know a little bit about snap decisions, obviously on an extremely lesser and non-comparative scale, because when a police officer makes a snap decision, it’s literally a matter of life and death. That’s hard a situation to be in. But if the wrong decision is made, based on pre-conceived notions or the wrong motives, I believe there should be consequence. Because without consequence, naturally the magnitude of the snap decisions is lessened, whether consciously or unconsciously.

“I’m not an activist, in any way, shape or form. Ninety-nine times out of a hundred I keep my opinions to myself on most matters. I worked extremely hard to build and keep my reputation especially here in Ohio, and by most accounts I’ve done a solid job of decently building a good name. Before I made the decision to wear the T-shirt, I understood I was putting that reputation in jeopardy to some of those people who wouldn’t necessarily agree with my perspective. I understood there was going to be backlash, and that scared me, honestly. But deep down I felt like it was the right thing to do. If I was to run away from what I felt in my soul was the right thing to do, that would make me a coward, and I can’t live with that. God wouldn’t be able to put me where I am today, as far as I’ve come in life, if I was a coward.

“As you well know, and it’s well documented, I have a 2-year-old little boy. The same 2-year-old little boy that everyone said was cute when I jokingly threw him out of the house earlier this year. That little boy is my entire world. And the No. 1 reason for me wearing the T-shirt was the thought of what happened to Tamir Rice happening to my little Austin scares the living hell out of me. And my heart was broken for the parents of Tamir and John Crawford knowing they had to live that nightmare of a reality.

“So, like I said, I made the conscious decision to wear the T-shirt. I felt like my heart was in the right place. I’m at peace with it and those that disagree with me, this is America, everyone has the right to their first amendment rights. Those who support me, I appreciate your support. But at the same time, support the causes and the people and the injustices that you feel strongly about. Stand up for them. Speak up for them. No matter what it is because that’s what America’s about and that’s what this country was founded on.”

Monday, December 15, 2014
Does Adrian Peterson's lawsuit against the NFL have a chance?

I break Adrian Peterson v. NFL down today on SI NOW with host Maggie Gray. Hope you can watch the video:

Regulating Professional Sports Leagues

I recently posted a copy of my latest law review article, "Regulating Professional Sports Leagues," to SSRN.  The paper, to be published next year in the Washington & Lee Law Review, makes the case for a federal sports regulatory agency (admittedly, a proposal that is unlikely to be adopted anytime soon).  Here's the abstract for the paper:
Four monopoly sports leagues currently dominate the U.S. professional sports industry. Although federal antitrust law — the primary source of regulation governing the industry — would normally be expected to provide a significant check on anticompetitive, monopolistic behavior, it has failed to effectively govern the leagues due to both their well-entrenched monopoly status and the unique level of coordination necessary among their respective teams. Consequently, the four leagues today each in many respects enjoy unregulated monopoly status in what is estimated to be a $67 billion industry.

As one might expect, these leagues use their largely unchecked monopoly power to injure the public in various ways. By restricting expansion, leagues create an artificial shortage of franchises enabling their existing teams to extract billions of dollars in stadium subsidies from U.S. taxpayers. Similarly, by preventing their franchises from individually licensing their broadcast rights nationally or over the Internet, the leagues are able to demand significantly higher fees from television networks and consumers than would be obtainable in a competitive marketplace, while at the same time subjecting viewers to arcane and outdated blackout provisions.

Unfortunately, existing proposals in the academic literature to remedy this undesirable state of affairs are both impractical and unlikely to be effective. This article instead proposes a surprisingly overlooked solution: the creation of a federal sports regulatory agency. Because the U.S. professional sports leagues today effectively operate as natural monopolies — with nearly 150 years of history establishing that competing leagues cannot sustainably co-exist in a sport for any significant length of time — direct government regulation of the industry is warranted. Indeed, a specialized agency would be particularly well suited to ensure that the leagues’ activities are aligned with the public interest, while at the same time accommodating the industry’s unusual economic characteristics.
You can download the full piece here.  Any feedback would be greatly appreciated.

Free speech in the NFL, ctd.

After this happened two weeks ago (and may or may nor have been resolved by what may or may not have been an apology from the Rams), this happened in Cleveland yesterday: Browns receiver Andrew Hawkins wore a t-shirt during pre-game intros calling for "Justice for Tamir Rice and John Crawford," both of whom were recently shot to death by Cleveland police officers. This follows on the heels of numerous NBA players, including some Cleveland Cavs, wearing "I Can't Breathe" t-shirts during pre-game warm-ups.

The head of the Police Patrolmen Union then offered this:

It's pretty pathetic when athletes think they know the law. They should stick to what they know best on the field. The Cleveland Police protect and serve the Browns stadium and the Browns organization owes us an apology.

If possible, this one is even more tone-deaf than the statement from the St. Louis police union spokesman. Note the familiar beats of 1) arrogant paternalism ("Stick to football and don't speak out on matters of public interest the way ordinary citizens can") and 2) mild threat ("We protect you, but if you don't appreciate us, maybe we won't anymore").

This is not going away anytime soon.

Update: The Browns responded in a far more unequivocal and unambiguous way: "We have great respect for the Cleveland Police Department and the work that they do to protect and serve our city. We also respect our players' rights to project their support and bring awareness to issues that are important to them if done so in a responsible manner."

That last qualifier is always the kicker of course; someone who wanted to could say that what the players did is not responsible. They would be wrong, of course, but there you go. I guess the next move is whether the department tries to pull out of providing game-day security (my guess: No, because the rank-and-file officers want the pay that comes with it).

Further Update: Will Leitch of Sports on Earth explains why this sort of athlete activism is a good thing (he was writing about the "I Can't Breathe" shirts in the NBA rather than the NFL examples, but the point is the same).

Sunday, December 14, 2014
Adrian Peterson's Legal Options

Now that Adrian Peterson has lost his NFL appeal, is he headed to court? My new column for Sports Illustrated on Peterson's legal strategy and the NFL's likely defenses. Hope you can check it out.

Saturday, December 13, 2014
A saitirical take on the Washington Professional Football Team

In California Law Review CircuitAlex Pearl (Texas Tech) goes Jonathan Swift on the controversy over the Washington Professional Football Team's nickname.

Friday, December 12, 2014
Key evidence excluded in Aaron Hernandez murder case

Key evidence--including text messages--were ruled inadmissible in Aaron Hernandez's upcoming trial for the murder of Odin Lloyd. My new column for Sports Illustrated on what this means and whether Hernandez might beat the murder charge.

MLB Sued Over Minor League Wages in New Antitrust Suit

On Friday, a group of four former minor league baseball players filed a federal class action antitrust lawsuit in California, contending that Major League Baseball teams have illegally colluded to fix minor league players' salaries.  I wrote about the case (Miranda v. Office of the Commissioner of Baseball) on Monday over at the baseball statistical analysis website FanGraphs.  Here is an excerpt of my piece:
The Miranda suit alleges that MLB unlawfully suppresses minor league players’ salaries in a variety of ways. By subjecting North American amateur players to the first-year player draft each June, Major League Baseball prevents draftees from selling their services to the highest bidder — instead forcing them to negotiate with only a single team. MLB then artificially reduces the size of the signing bonuses that entry level players receive through its domestic and international signing bonus pool restrictions.

Once players have entered the minor leagues, their annual salaries are then largely dictated on a take-it-or-leave-it basis by their teams in accordance with MLB-imposed, minor league salary “guidelines.” And because MLB teams retain the exclusive rights to their minor league players’ services for seven years, many players go their entire careers without ever being able to sell their services in a competitive market. As a result, the suit asserts that most minor league players earn as little as $3,000 to $7,500 per year.
The full piece is available here.

Thursday, December 11, 2014
Court won't overturn football ref's decision

This seems right. I cannot imagine the absolute mess that would result if a court of equity could get involved in reviewing decisions of game officials. It would make sense if the state association provided for some mechanism to challenge a game official's understanding of the rules. The suggestions of racial bias are troubling, but do not change the fundamental analysis. I also assume that the game official has been appropriately sanctioned.

Sunday, December 07, 2014
Sports Illustrated article on O'Bannon v. NCAA appeal

I've written an article titled "Court Time: Will Ed O'Bannon's historic victory withstand not-so-instant replay?" in this week's magazine issue of Sports Illustrated (Dec. 8, 2014 issue). The article is on page 56. Hope you can check it out.

Saturday, December 06, 2014
The stupidity of trying to regulate hate speech

Too often, the people doing the regulating do not get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which shows how multi-ethnic (and thus non-racist) Mario is by reference to all the ethnic stereotypes he embodies.

The FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than a joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.


Thursday, December 04, 2014
UAB Abolition of Football and the Intersection of Title VI and Title IX

The University of Alabama at Birmingham announced earlier this week that it was shutting down its football, bowling and rifle teams. The decision has been controversial in Alabama and sent reverberations across the country in college athletics. The university probably gave some consideration to the implications under Title IX with respect to the bowling and rifle teams in making the decision but did it look at the potential application of Title VI?

Even though closing of the bowling and rifle teams will reduce participation opportunities for women, the reduction in football participation numbers will drop the participation numbers for men below that of women according to UAB’s last Equity in Athletics report. However, closing the football program will result in a substantial decrease in participation numbers for African American males will be substantial and a similar impact on the overall participation numbers for African American athletes. Furthermore, bowling happens to be a sport in which African American women comprise a significant percentage of the participants in intercollegiate competition. Although the UAB team may not currently have an African American member, it is a sport in which UAB has the potential to offer African American female athletes participation opportunities outside of basketball and track.

Given the impact of the decision on opportunities for African American student athletes and the reallocation of resources to other sports, UAB’s decision may have Title VI implications.

Alfred Dennis Mathewson

The evolution of fan speech

During last night's ACC/Big Ten Challenge game between Virginia and Maryland in College Park, Maryland fans chanted "no means no" and held signs referencing the Rolling Stone report about rape at UVa's campus and calling for the university to be called to account.

Two thoughts. First, how should we feel about an socio-political message that is being chanted to razz the opponent? Is it inappropriate or mean "too political," since it has nothing to do with the game or with any of UVa's players? Or does it reflect the inevitable ties between sports and society--in this case between a problem at the university and the team that represents that university. Second, it shows that we have improved somewhat in our understanding of sexual assault. In the early 1980s, a Maryland player named Herman Veal was accused of sexual misconduct; Duke fans waved women's panties and one fan held a sign that said "Did you send her flowers?" Yesterday's expression at least recognize sexual assault as a serious issue.

By the way, as the Deadspin report shows, there was speech all over that game. Students staged a "die-in" outside the arena to protest the various non-indictments of police officers; the protest included one member of Maryland's football team.

Tuesday, December 02, 2014
Does Adrian Peterson have a good case?

I have a new column for Sports Illustrated on Adrian Peterson's appeal.

I was also a guest on the Jim Rome Show yesterday to talk about Ray Rice's appeal:

Monday, December 01, 2014
Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

Update: It appears neither the Rams nor the NFL will sanction the players involved.

Friday, November 28, 2014
Video not required

Deadspin reports on the arbitrator's decision overturning the NFL's indefinite suspension of former Ravens running back Ray Rice. The arbitrator determined that Rice did not misrepresent to the league what happened in the elevator, contrary to the league's stated basis for imposing a new punishment after the release of the video. Importantly, she pointedly rejected the idea that video was necessary to  understand what happened or that video should have changed anything about the appropriate punishment, that it was not : "That the League did not realize the severity of the conduct without a visual record also speaks to their admitted failure in the past to sanction this type of conduct more severely."

Ray Rice wins NFL appeal: the Legal Fallout

Former U.S. District Judge Barbara Jones tonight has issued a sharp ruling against the NFL and its suspension of Ray Rice. I have a column on that breaks down the legal impact and how it may lead to changes in the NFL.

Sunday, November 23, 2014
Antitrust professors amicus in O'Bannon

A group of antitrust professors has filed an amicus brief in the Ninth Circuit appeal in O'Bannon v. NCAA (media coverage here). I know nothing about antitrust. But the gist of the argument appears to be that once the district court found the NCAA had some rational basis for its limits, the antitrust Rule of Reason was satisfied and it was beyond the court's power to order the NCAA to change those limits.

Slava Voynov’s Immigration Wrinkle to his Domestic Violence Charges

As the NFL continues to make headlines with its continued domestic violence issues, the NHL proved last month that domestic violence problems are not just limited to pro football. In October, Los Angeles Kings star defenseman Slava Voynov was arrested following a domestic dispute with his wife that required her to receive medical attention at the hospital. He has been suspended by the Kings since the arrest, and this week he was officially charged by the Los Angeles District Attorney’s office with a felony count of corporal injury to a spouse with serious bodily injury. While Mr. Voynov must face the criminal justice system much like the more publicized NFL cases, he has many additional issues relating to his immigration status.

Slava Voynov is a native, and presumable still a citizen, of Russia. Thus, he is probably in the United States under nonimmigrant status as an athlete, or possible as a legal permanent resident if the Kings petitioned for a green card for him. Since he is not a citizen, he will have to worry about two different issues relating to United States immigration.

First, if he is convicted of the charged offense, he would become immediately deportable under current immigration laws. Further, the charge is considered a crime of moral turpitude, such that Mr. Voynov would be inadmissible to return to the United States should he ever leave the U.S. with that charge on his record. The distinction between being deportable and being inadmissible my seem small, but could have serious ramifications for Mr. Voynov. It is conceivable that he may accept a plea on the case such that he is not deportable, but is inadmissible. This would mean that he could remain in the United States, but should he ever leave (like say for a game in Vancouver), he would not be allowed to return.

A final immigration issue that Mr. Voynov must face is with Canada. Even if he were to somehow avoid immigration issues in the United States by taking a plea to a lower charge, he would be inadmissible into Canada with a criminal conviction for domestic violence in the United States. This means that even if he is somehow able to lower the charges and remain in the United States, he may not be allowed to travel to any of the Canadian games, where the Kings currently play about 15% of their schedule, not including the playoffs. If this occurs, even if the Kings keep Mr. Voynov on their roster, they’d certainly have something to say about paying out the full 100% of his six-year, $25 million contract, of which five and a half years still remain.

While the charge is still pending and nothing may result from this, it should be obvious that, although less publicized than the NFL cases, Mr. Voynov’s domestic violence charge has MUCH more serious consequences for him.

Friday, November 21, 2014
Dr. Paul Withers proposal to address issue of NCAA athletes signing autographs

Dr. Paul Withers, an astronomy professor at Boston University, recently emailed me an idea he has to address the issue of NCAA athletes--like Todd Gurley and Johnny Manziel before him--getting in trouble for signing autographs.

I've posted Dr. Withers' proposal in its entirety below.

Not sure if this is enough of a legal issue to fit in your usual portfolio of topics, but here's a way to solve the NCAA autograph problem. Seems extendable to other areas as well.

1. Current athletes sign $0 contract with company to sell their autographs. Since current athletes get $0, NCAA is happy. Or perhaps the current athletes pay the company $1 to sell their autographs and thereby improve and extend their personal brand and reputation.

2. Current athletes graduate into former athletes, then sign short-term $$$ contract with company to recruit next crop of current athletes. NCAA has no jurisdiction over former athletes. Current athletes, if they have any sense, will pay close attention to short-term $$$ contract received by former athletes.

3. There's room for multiple companies in this business, so no monopoly problem. Autographs can be immediately distributed into every possible avenue for sales with authentication, instead of needing to pass through an inefficient black market stage along the way, which will increase sales and profits.

4. All parties have incentive to honor the unwritten arrangements: companies need next year's athletes, who will recoil from any company that doesn't briefly employ well-paid former athletes, and current athletes can get surely get more money this way than via current shady and risky arrangements.

5. Worried that current athletes will lack information on which company to go with? Competition should ensure third-party verification of sales and obvious correlations between sales and post-university payments. Also, there's a market void for someone to set up a clearing house that buys information on post-university payments from former athletes (another income source for them), collates it all, and sells it to current athletes (worthwhile as a source of investment advice, plus likely to recoup some fraction of payment once they become a former athlete).

6. Why would a current athlete be the first to attempt this, without the benefit of clear precedent from prior years? First mover advantage. This individual would be the only current athlete whose autographs are available in vast quantities for sale via every legitimate channel imaginable, so sales would be higher than otherwise. Once they are a former athlete, the company can give this one individual a huge payment in order to ensure recruitment of dozens of next year's students and solidify its own first mover advantage.

Paul Withers

Paul Withers                            Astronomy Department
Office  +1 617 353 1531                 Boston University
Fax     +1 617 353 6463                 725 Commonwealth Avenue
Email                  Boston MA 02215, USA

Wednesday, November 19, 2014
Does Adrian Peterson have a good legal case against the NFL?

I attempt to answer this question in a new Sports Illustrated column. Here's an excerpt:

In order to obtain a temporary restraining order, Peterson would need to convince a judge that unless he is allowed to play again this season, he would suffer irreparable harm. Peterson arguing that his NFL suspension will cost him money in lost salary would not be a winning argument for purposes of irreparable harm. Courts are generally skeptical of irreparable harm arguments when monetary damages can later repair the harm. As a result, Peterson would need to establish harm beyond merely lost salary. He would likely insist that not playing again this season would cause lasting and permanent damage to his NFL career and image. More specifically, he might insist that his football skills and physical abilities would atrophy if he doesn’t play again. Similarly, Peterson might assert that the Vikings and other teams would be less interested in his services if he misses nearly an entire season. 

The NFL would reject these so-called "harms" as speculative at best. The league would also stress that Peterson’s predicament is a result of his own misconduct as a parent.

To read the rest, click here.

Sunday, November 16, 2014
Game-Changer or Trojan Horse? Making Sense of Adam Silver's Sports Betting Comments

NBA Commissioner Adam Silver caused a stir last week when he penned a New York Times op-ed piece that called for the legalization (and federal regulation) of sports betting. (For a great analysis of Commissioner Silver’s op-ed, I highly recommend Ryan Rodenberg’s article, co-authored with Jon Wertheim, as well as John Brennan’s fine work in the Bergen Record and Meadowlands Matters). Despite his clarion call for legalization, Mr. Silver’s comments (his most expansive to date on the subject) will likely have no impact on the current federal court case in which the four major professional sports leagues and the NCAA are suing to block New Jersey from implementing its latest sports betting law. As SLB stalwart Michael McCann told John Brennan of the Bergen Record:
I don’t think Commissioner Silver’s op-ed harms the NBA’s legal argument against New Jersey’s efforts to legalize sports betting, because Silver has merely encouraged Congress to consider new federal laws that would give states flexibility in legalizing it. The NBA’s case is built on the contention that New Jersey’s proposed sports betting law would violate existing federal law, specifically the Professional and Amateur Sports and Protection Act. Moreover, Judge Shipp, and any appellate judges who hear this case, would also evaluate the legal arguments based on the laws implicated in the case, not on hypothetical laws that don’t yet exist.
But what struck me about the op-ed more than anything else was its timing. Why now? Was it just an organic evolution of Commissioner Silver's progressive views on the subject, which are entirely consistent with his prior statements made at last year's Sloan Conference and this year's Bloomberg Sports Business Summit? Or was there some strategic reason to drop this bombshell now--just days away from the oral argument on the leagues' motion for a preliminary injunction? Call me a cynic, but I believe the timing of its publication was partly strategic: to diminish the New Jersey law and, more importantly, to influence the court prior to an important hearing. After all, this is the same brilliant lawyer who outmaneuvered the hyper-litigious Donald Sterling at every turn and whose successful legal strategy paved the way for the quick transfer of ownership of the LA Clippers to Steve Ballmer. Remember, throughout the Donald Sterling probate court trial, a number of "NBA-aligned" individuals made statements that were viewed (at least by me) as an attempt to influence then-ongoing court proceedings. Doc Rivers threatened to quit as head coach of the Clippers if Donald Sterling remained as the team owner; and Chris Paul said that a league-wide player boycott was a real possibility if Donald Sterling were still the Clippers owner when the regular season began. These statements were made during the midst of the probate court trial. So, maybe, this tactic is part of the NBA's playbook.

This strategy appears to have succeeded, as Commissioner’s Silver’s emphasis on the need for a “comprehensive federal solution” has already gained traction in the “court” of public opinion and made New Jersey’s law appear to be the problem (e.g., unregulated sports betting) rather than the solution (e.g., regulated sports betting). By offering up the olive branch of a federal solution in the not-too-distant future, Commissioner Silver has shifted the debate away from the current case, which no doubt was his intent.

As Michael McCann aptly observed, Commissioner Silver’s comments won’t help New Jersey on Thursday (or in its eventual appeal to the Third Circuit) because they address future legislative reform rather than any present legal issues before Judge Michael A. Shipp (the Trenton-based federal district judge who is assigned to the case). The issue presently before Judge Shipp is whether New Jersey’s "partial repeal" of its state-law ban on sports betting -- the sole beneficiaries of which are state-licensed casinos and state-licensed racetracks -- runs afoul of PASPA's ban against state-regulated sports betting. In Christie I, the Third Circuit declared that "we do not read PASPA to prohibit New Jersey from repealing its ban against sports wagering," adding that "it is left up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be."

Judge Shipp (and, eventually, the Third Circuit) will have to determine just how far a “repeal” must go in order to fit within the contours of the Third Circuit majority opinion. New Jersey will, of course, zero in on the language in the Third Circuit majority opinion leaving it up to the states to decide "what the exact contours of the prohibition will be.” New Jersey maintains that its “partial repeal” reflects the “exact contours of the prohibition” that it has decided -- as a policy matter -- to enact in conformity with the Third Circuit majority opinion. The leagues, understandably, take a much more narrow view of the Third Circuit language, arguing that only a “complete repeal” will suffice and that what New Jersey has done here is not a true repeal at all, but, rather, a “back-door” authorization of sports betting.

Adam Silver’s op-ed article does not speak to any of these issues. To the contrary, Commissioner Silver’s statements are entirely consistent with the leagues’ present position – that New Jersey’s repeal law violates PASPA. Despite embracing legislative reform (at the federal level), Commissioner Silver continues to stick to the party line -- that “unregulated” sports betting (which is what New Jersey proposes) will negatively affect the integrity of the games and cause irreparable harm to the leagues. Thus, there is no inconsistency between his op-ed and the leagues’ present position on the issues in this case.

While some might argue that Commissioner Silver’s bombshell undermines the leagues’ argument that they will suffer “irreparable harm” (one of the requirements for a preliminary injunction), it is important to remember that the leagues do not need to make a factual showing of irreparable harm in order to prevail on Thursday (or before the Third Circuit). Rather, irreparable harm would be “presumed” based on a violation of the Supremacy Clause (e.g., the New Jersey repeal law contravenes federal law). Both the district court and Third Circuit invoked this presumption in Christie I, and will likely do so again in the current case if they determine that the New Jersey repeal law violates PASPA.

Notably absent from Commissioner’s Silver’s call for the legalization of sports betting is any reference to what the leagues would want in return – monetarily, that is. Previously, Silver was quoted as saying that expanded legal sports betting was “inevitable” and that the leagues would be willing to “participate” in it (presumably, for a price). Commissioner Silver’s op-ed skirts that issue entirely. However, expect the leagues to insist on a royalty or licensing fee (either in the form of a percentage of the total amounts wagered or a flat fee from licensed gaming operators) as a condition to acquiescing to any future federal legislative reform. But it remains to be seen whether the other sports leagues (e.g., the NFL, NHL, MLB and NCAA) share Commissioner Silver’s progressive views on sports gambling.

Nonetheless, Adam Silver’s bombshell is already seen in many corners as a “game-changer” in the sports betting legalization movement (both for New Jersey and other states). I would not be surprised to see something develop on that front by 2016. The biggest impediment to expanded legal sports betting – Senator Harry Reid (Nevada’s protector) – has been removed with the recent election results. With the Republican Party now holding a majority of U.S. Senate seats, Senator Reid may not be able to block new federal legislation to expand single-game sports wagering beyond Nevada. Perhaps, a Republican-controlled Congress would be willing to trade expanded sports betting for a tightening of the Wire Act (to eliminate or heavily restrict online gambling). It may be a bet worth placing.

Wednesday, November 05, 2014
Did Jameis Winston's lawyer break the law by tweeting out the name of Winston's accuser?

Did Jameis Winston's lawyer break the law by naming Winston's accuser on Twitter? I have a column tonight for Sports Illustrated on that issue. Hope you can check it out.

Can the Yankees void Alex Rodriguez's contract now that he's admitted to using steroids?

Adrian Peterson pleads guilty: what's next for his NFL career?

I have a new column for Sports Illustrated on the legal and NFL impact of Adrian Peterson pleading guilty to a misdemeanor charge relating to his disciplining of his four-year-old son.

I was also a guest on The Today Show to discuss this story:

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Tuesday, November 04, 2014
Preview of Ray Rice Appeal

I have a new preview for Sports Illustrated on the Ray Rice appeal and what it means for Rice, NFL commissioner Roger Goodell and the league. Hope you have a chance to check it out. I also spoke with NPR's All Things Considered about the hearing.