Sports Law Blog
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Friday, February 05, 2016
 
More intentional fouls

Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).

Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.

Thursday, January 28, 2016
 
Intentional fouls and limiting rules

The NBA practice of intentionally fouling a poor free-throw shooter away from the ball (and the entire play) is spreading. Last week, the Houston Rockets began the second half by having the same player foul an opponent's poor shooter five time in eight seconds. Last night, two different teams fouled someone before he could throw the ball inbounds. This season, 27 players have been subject to the "Hack-a-_____." In October, NBA Commissioner Adam Silver announced that, although the league has been studying the issue, it was not considering rule changes to stop the practice.

Critics of the Infield Fly Rule often point use this situation to argue against the IFR, insisting that the situations are the same and, if basketball does not require a special rule, neither should baseball. But the argument does not work because the situations are not the same. Like the infield fly, "Hack-a-____" involve teams intentionally acting contrary to their ordinary athletic interests (defenders ordinarily do not want to foul, especially a player who is uninvolved in a play and no threat to score); it gives one team an advantage over the other (statistics of points-per-possession show that a good offensive team is substantially worse off having its worst FT shooter shoot over and over than running its regular offense); and the advantage is great enough that teams have the perverse incentive to keep doing it (hence the reason the strategy is spreading). But "Hack-a-____" lacks the necessary substantial imbalance in control over the play--the fouled team can counter the strategy by making their damn free throws, or at least more of them to render the strategy no longer worthwhile. Limiting rules do not exist to save teams and players from themselves or their own shortcomings.


Instead, any rule to stop this practice would be for aesthetic purposes, not cost-benefit balance. The game becomes ridiculous and boring to watch (watching a parade of free throws is bad; watching a parade of missed free throws is worse). Eventually fans might get sick of what they are watching. To be sure, some aesthetic concerns underlie the IFR; we would rather see players catch easily playable balls than not catch them. But the IFR situation also involves an extreme cost-benefit imbalance. Aesthetics provide the sole basis for eliminating intentional fouls.

An interesting question is what any limiting rule might look like for the NBA. My proposal would be to give the offense a choice following an off-the-ball intentional foul--shoot the free throws or get the ball out of bounds. All fouling would give the defense is a chance to steal the ball on the inbounds play, although steals or turnovers on such plays are relatively rare, while incurring the cost of running up their foul totals. This change should eliminate the perverse incentive; there is no incentive for the defense to intentionally foul when the benefit is a small chance of getting a turnover on the inbounds play, but little or no chance that the offense will choose to have the bad shooter go to the line.

Sunday, January 24, 2016
 
Distributive injustice: An ethical analysis of the NCAA's "collegiate model of athletics" and its jurisprudence

I'm pleased to announce the publication of the above-referenced article in The International Sports Law Journal that I co-authored with Richard Southall (South Carolina), which can be downloaded from SSRN here.

Abstract:

The NCAA’s purported philosophical justifications for its ‘‘Collegiate Model of Athletics’’ are embedded within its seven stated ‘‘Core Values’’ and ‘‘Principles’’, which are based on a distribution principle of strict, or radical, equality in which it is believed societal benefit or the ‘‘greater good’’ is achieved if universities can lawfully conspire to compensate all athletes at the same level. From this theoretical perspective, the authors scrutinize two ethical frameworks most often asserted by the National Collegiate Athletic Association (NCAA) to justify exploitation of profit-athletes in the revenue-generating sports of Football Bowl Subdivision (FBS) football and Division I men’s basketball: Classical Utilitarianism and Paternalism. From an analysis of several court rulings over the past 40 years involving challenges to the NCAA’s ‘‘amateurism’’ principles, the authors found, in rulings favoring the NCAA, the judges implicitly supported their decisions utilizing the NCAA’s utilitarian and paternalistic justifications for its Collegiate Model of Athletics. They recommend courts should balance considerations of utilitarianism and paternalism against normative principles of honesty, harm, autonomy, justice, and an adult individual’s fundamental right to maximize economic value and self-worth free of conspiratorial restraints.

Thursday, January 21, 2016
 
Inaugural Boston College Sports Law Symposium

On January 30, 2016 the Boston College Law School, or more specifically the students of the BC Sports & Entertainment Law Society, will be hosting the Inaugural Boston College Sports Law Symposium. The event, open to the public, will consist of three panels:

Panel One: Sponsorship & Sports (11:00 am to 12:00 pm)
Moderator: Prof. Alfred Yen, Boston College Law School

Panelists:
Richard Flagger, DLA Piper
Josh Gallitano, New Balance
T.K. Skenderian, Boston Athletic Association

Panel Two: "So You Want to be an Agent?" (12:15 to 1:15 pm)
Moderator: Joseph Rosen, Brown & Rosen / Orpheus Sports
Panelists:
Tom Condon, CAA
Jay Fee, Nelson Mullins
Mook Williams, Symmetry
Kristen Kuliga, K Sports

Casual Networking Lunch (1:15 to 2:00 pm)

Panel Three: The Business of the NCAA (2:00 to 3:00 pm)
Moderator: Warren K. Zola, Boston College Carroll School of Management
Panelists:
Paul Kelly, Jackson Lewis
Michael McCann, University of New Hampshire Law School / Sports Illustrated
Garin Veris, Mass Maritime and former Stanford University & NE Patriot player

Note: This event is open to the public. Please email Laura Berestecki at berestic@bc.edu (include your full name and school or company) to register.

Wednesday, January 20, 2016
 
More Foreign Athletes Getting in Possible Immigration Trouble

In 2015, Los Angeles Kings defenseman Slava Voynov made news by being forced to leave the United States when he was convicted a crime of domestic violence and was subsequently placed in removal proceedings (more commonly known as deportation proceedings).  It seems that the far reaching consequences of that case did not reach Colorado Rockies shortstop Jose Reyes, however, who was arrested in October 2015 in Hawaii for misdemeanor "Abuse of family or household members".

Mr. Reyes is now scheduled for trial on this case this April.  If he either takes a plea deal prior to then or is convicted, it is certain that Immigration and Customs Enforcement (ICE) will look into the case, as Mr. Reyes was born in the Dominican Republic and presumably entered the United States with either an athlete's visa or as a legal permanent resident.

If an individual is lawfully present in the United States but not a United States Citizen, there are a number of reasons he could be removed by ICE.  The main ones that would affect Jose Reyes are that an individual can be removed if convicted of an aggravated felony, a crime involving moral turpitude that carries a sentence of a year or more, or a crime involving domestic violence.

A review of the criminal statute under which he is charged shows that it is very unlikely that this would be considered an aggravated felony.   Further, the charge is a misdemeanor, which means that there cannot be a sentence of a year or more.  This leaves the potential for removal due to having committed a crime involving domestic violence.

As a comparison to Slava Voynov's removal for having committed a crime involving domestic violence, Mr. Reyes is in a better position than Mr.Voynov was.  Unlike Slava Voynov's case from last year, Mr. Reyes' charge is not automatically a domestic violence crime under immigration laws because there are ways to be convicted of the charge of "abuse of family or household members" that do not involve violence.  For instance, one could be convicted of that crime by refusing compliance with an order of a police officer investigating possible domestic violence, even if no violence ever occurred.

This is not to say that he will have no problems with the immigration service, however.  If the criminal complaint states that he physically assaulted a family member, or if in a plea deal he admits to physically assaulting a family member, those documents could potentially be used against him in a removal hearing.
To further complicate the matter, although the Colorado Rockies do not play the Toronto Blue Jays this year, a conviction for a crime involving domestic violence could also be used to deny Mr. Reyes admission into Canada for any games there in the future.
Luckily, there are ways to structure a potential plea in this case to avoid immigration consequences if the district attorney is willing to work with defense counsel, but only time will tell if Jose Reyes will end up in ICE custody.

Monday, January 18, 2016
 
What a Racket

Literally. Apparently the BBC and BuzzFeed have uncovered a cache of documents revealing that the Capos that control Professional  Tennis have tried to keep secret since 2008. These documents seem to suggest at least 28 top level players were implicated in throwing matches to benefit the wagers placed by Russian mobsters not just in low level tournaments but in events as vaunted as Wimbledon. Holy Strawberries and Cream! Who even knew you could bet on Tennis. Next someone will tell me you can have a Daily Fantasy Tennis Team. At least no one is accused of deflating those neon yellow balls to gain some Advantage.

Monday, January 11, 2016
 
No Question, PASPA Applies to Daily Fantasy Sports


The recent controversy surrounding daily fantasy sports (“DFS”) has highlighted both the need to regulate the industry and also to clarify its legal status. State legislatures are now attempting to shore up the legal status of DFS while proposing regulations aimed at protecting consumers. Since the beginning of 2015, nearly 20 states have weighed in with some form of proposed DFS legislation. These bills run the gamut: several of the bills “authorize” DFS as legal (one even proposes an amendment to that state’s constitution); some propose a “licensing” regime (whereby operators are required to pay substantial annual sums for the privilege of doing business in that state); others simply “regulate” DFS without explicitly authorizing or licensing the activity, whereas, at the other end of the spectrum, a few states “exempt” fantasy contests from the ambit of those states’ gambling codes. 

While these are legislative proposals are laudable, and, perhaps, even necessary to protect consumers, they may be in violation of the Professional and Amateur Sports Protection Act (“PASPA”), a 1992 federal law which prohibits state-sponsored sports betting in every state except for those states (such as Nevada) that had conducted a sports wagering scheme at any time between January 1, 1976 and August 31, 1990.

A. The Plain Language of PASPA

While PASPA is commonly understood to prohibit state-sponsored sports betting on the “outcomes” of professional and amateur sporting events, it also contains language that is arguably (and perhaps inarguably) directed at fantasy sports. In its recently-released white paper, the Massachusetts Gaming Commission cautioned that PASPA "potentially presents the greatest constraint to state action to address DFS," adding that "at first glance, PASPA may constrain the Legislature from any legislation that directly or indirectly permits or regulates DFS."

Section 3702 of PASPA states in pertinent part:

“It shall be unlawful for – 

(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or

(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity, 

a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographic reference or otherwise) on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.”

28 U.S.C. § 3702 (emphasis added)

Fantasy sports are inextricably tied to the individual “performances” of athletes in a game rather than on the final score of the game itself. Without the underlying performance statistics of the real-world professional or amateur athletes, there are no "winners" or "losers" in a DFS contest. As the Massachusetts Gaming Commission explained in its comprehensive white paper, "the success of the individual athletes that make up a participant's team, when filtered through the scoring rubric set up by the DFS operator, will result in the win or loss of the participant." While acknowledging that a DFS participant is not "betting" that a specific player will achieve a specific statistical milestone, such as scoring a certain number of touchdowns in a single game, the Massachusetts Gaming Commission observed that the DFS participant is nonetheless betting that "the aggregate performance of the individual athletes on his [fantasy] team will exceed the aggregate performance of the individual athletes on his opponents' [fantasy] teams." "Simply stated," as the MGC's white paper concludes, "if there were no underlying athletic performances, there would be no DFS."

Thus, a state legislature considering whether to expressly legalize daily fantasy sports must be cognizant of PASPA's prohibitions. As the statute makes plain, states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" any lottery, sweepstakes or other betting, gambling or wagering scheme based directly or indirectly on . . . one or more performance of athletes in such games."

PASPA's ban on state-sponsored sports wagering also applies to private parties acting "pursuant to the law or compact of a governmental entity." See National Collegiate Association, Inc. v. Christie, 730 F.3d 208, 216 (3d Cir. 2013) (“The prohibition on private persons is limited to any such activity conducted ‘pursuant to the law or compact of a governmental entity.'”). These private persons would theoretically include DFS operators, professional sports leagues and teams, and media companies. To date, only two states (Kansas and Maryland) have expressly legalized fantasy sports. However, this "private person" language may take on greater significance in 2016, as a number of other states move to legalize DFS.

Although PASPA has not yet surfaced as an obstacle to state legalization of DFS, it may emerge as an important issue in 2016 as new state legislative measures are introduced. Any analysis of a DFS legalization bill will undoubtedly center on two key issues: (1) whether DFS is a "lottery, sweepstakes or other betting, gambling, or wagering scheme" based, directly or indirectly, on "one or more performances" of amateur or professional athletes; and (2) whether a state's explicit legalization of DFS rises to the level of "promoting," "authorizing," or "licensing" for purposes of PASPA.

B.  PASPA’s Legislative History

Some might argue that DFS is not a “lottery, sweepstakes or other betting, gambling or wagering scheme" within the meaning of PASPA because DFS is a "contest of skill” (with skill predominating over chance), whereas traditional single-game sports betting (the main focus of PASPA) entails more “chance” than “skill." But PASPA’s legislative history suggests that the “skill vs. chance” distinction has no bearing on the applicability of PASPA.

To that point, the Report of the Senate Judiciary Committee (Senate Report 102-248) accompanying PASPA states as follows:
The prohibition of section 3702 applies regardless of whether the scheme is based on chance or skill, or a combination thereof.  Moreover, the prohibition is intended to be broad enough to include all schemes involving an actual game or games, or actual performance therein, including schemes utilizing geographic references rather than formal team names (e.g., Washington vs. Philadelphia), or nicknames rather than formal names of players”) 
Sen. Rep. 102-248, reprinted in 1992 U.S.C.C.A.N. 3553 (emphasis added)

This language could not be any clearer. It states that PASPA is  is “broad enough” to include "all schemes" involving an actual game or games, "or actual performance therein." The Massachusetts Gaming Commission similarly observed in its white paper that PASPA's legislative history "clearly demonstrates that the statute was designed to have a broad scope applying to a wide swath of 'schemes' regardless of the balance between chance and skill." While there is no need to even resort to the statute's legislative history given that the plain language of PASPA is clear and unambiguous, the legislative history nonetheless belies any argument that PASPA is inapplicable to fantasy sports contests.

C.  Does the Later-Enacted UIGEA Override PASPA?

Some have also posited that PASPA was “superseded” by the Unlawful Internet Gambling Enforcement Act (“UIGEA”), which was enacted nearly 15 years earlier. In fact, one DFS payment processing company (which shall remain nameless) specifically requires a legal opinion from operators on this point before it will agree to process DFS transactions. Presumably, lawyers drafting legal opinions for the use and benefit of DFS payment processors have opined that UIGEA "implicitly supersedes" PASPA. But any such conclusion or opinion would be a huge stretch, in my view.

UIGEA, which generally outlaws internet gambling, contains an exemption for fantasy sports contests that meet certain criteria. PASPA, on the other hand, prohibits states from authorizing sports gambling schemes based on the “performance” of athletes in amateur or professional sporting events.

Under the interpretive principle known as lex posterior derogat legi priori, “a later statute takes away the effect of the prior one.” But, as the governing case-law makes clear, the later statute must either "expressly repeal", or be "manifestly repugnant to," the earlier one.

This rule of interpretation cuts against the notion that UIGEA supersedes PASPA. There are several reasons for this. First, UIGEA does not expressly repeal PASPA. Neither the UIGEA statute nor the legislative history preceding its enactment makes so much as even a passing reference to PASPA. Second, UIGEA is not “manifestly repugnant” to PASPA. The two federal statutes have entirely different aims: UIGEA targets the “recipients” of payments associated with unlawful internet gambling transactions, whereas PASPA simply forbids "governmental entities" (including states and recognized Indian tribes) from “authorizing” new sports gambling laws. They are simply not in conflict.

Further, UIGEA’s “Rule of Construction” makes clear that UIGEA does not supersede other federal or state laws:
No provision of this subchapter shall be construed as altering, limiting, or extending any Federal or State law or Tribal-State compact prohibiting, permitting, or regulating gambling within the United States.
31 U.S.C. 5361(b)

This statutory language should put to rest any contention that UIGEA superseded, altered or supplanted PASPA. Thus, state legislative bodies which are weighing whether to legalize daily fantasy sports need to be cognizant of the constraints imposed by PASPA. As I will explain in a future piece, several state legislatures (most notably, those in Florida, California, Minnesota, Indiana and Pennsylvania, to name just a few) have not heeded this message and may unwittingly expose their prospective fantasy sports legislation to a future legal challenge under PASPA.

Sunday, January 10, 2016
 
Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal likely is that she knows she will lose, because students are losing all of these cases.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.

Thursday, December 31, 2015
 
Joseph Conti: Aroldis Chapman and Rethinking MLB free agency rules

This post is written by Attorney Joseph Conti

------

Overview

On Monday January 28, 2015 the New York Yankees traded away four prospects to the Cincinnati Reds in exchange for Aroldis Chapman, but the Yankees acquiring one of baseball’s top closers is only one part of this transaction. Chapman is currently being investigated for an alleged domestic violence incident stemming from an October 30, 2015 confrontation. Due to this investigation, Major League Baseball is contemplating a suspension for Chapman in accordance with collectivley bargained rules.

Baseball's CBA allows teams to control a player’s contract for 6 years prior to the player hitting the free agent market. Chapman is entering his 6th year of service. However, if MLB suspends Chapman for more than 45 days for this upcoming season, the 2016 season will not count against that 6 year time table. Therefore, it is in the Yankees best interest for Chapman to get suspended for more than 45 days in the 2016 so they can pay Chapman a cheaper salary for the 2017. A contract for a superstar in arbitration, before free agency, is much lower than the contract Chapman would receive as a free agent.

Issue

Whether the rules delaying of the free agency period because of a domestic violence suspennsion should be altered.

Givens and Variables

A given is that the Yankees did what is best for their organization. Chapman’s contract appears more valuable than the cost of the prospects traded away and the potential negative public relations associated with acquiring a player who is accused of wrongdoing. Also, the Yankees taking full advantage of a rule already in place is not a negative.

Other "givens" include that certain variables may positively or negatively affect any athlete. The list includes performance, injury, and baseball has a new CBA at the end of the 2016 season.

Why this rule is good

The rule imposes a substantial penalty on players who have engaged in wrongdoing, at least "wrongdoing" as determined by MLB. That consequence may, to some degree, deter other players from engaging in that type of wrongdoing. Losing one year of a higher free agent salary during the prime of your career should be a determent. To further illustrate this point: when using the NFL as a comparison, a 45 day+ suspension in baseball is more punishing than 4 game suspension in the NFL.

Why this rule is bad

The rule counterintuitively makes athletes with domestic violence suspensions more valuable as an asset to a team since teams gain an additional year of control over these players. At least in theory, this dynamic could create corruption by players, agents, and teams to avoid free agency for a season in hopes of an additional season to improve their value upon hitting the free agent market. Teams now have players under their control for an additional year for something that is inherently negative.

Solution

Being a stat head I believe the best solution would be to create a stat based approach predicting outcomes and values in the future. This way the athletes associated with crime and the temas that employ them do not benefit when all of the above variables are in executed. The statistic solution can show whether or not free agency now or a year from now will result in a net positive for the athlete.

For example, if Chapman breaks his arm the last game of the season next year. He is likely worse off as a free agent in 2016 because someone has to take a risk on him and he should be a free agent avoiding the benefit of a 2017 season before he signs a long term free agent contract. However, if he closes 42 games successfully without a loss he forced into another year of arbitration before his free agent contract.

Attorney Joseph Conti is an associate focusing on high tech patent prosecution at Onello & Mello LLP in Burlington, MA. He is a 2015 graduate from The University of New Hampshire School of Law. During his free time you will see Joe cheering on the Big 4 Philadelphia Sports Teams, and Saint Joseph's University Basketball.

Friday, December 18, 2015
 
United States v. Klein and NFL Officiating

I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."

The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.

Monday, December 14, 2015
 
Pete Rose remains banned from Major League Baseball

MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.

Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*
* Hall criteria include integrity and sportsmanship. So there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.

 
Crowdfeeding

Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.

Friday, December 11, 2015
 
Crowdfunding college sports

The New York Times tells of a Clemson fan who has launched UBooster, a site designed to allow college sports fans to pledge money to help attract high school athletes to the donors' preferred schools--in other words, exactly what Dan Markel, Mike, and I proposed. (H/T: Gregg Polsky). According to the story, fans pledge money to a particular recruit, with a note urging him (or her) to choose a particular school; no more money can be contributed once the athlete commits to a school and the money is held in trust until after the player finishes college. The money is not funneled through the university and there is no direct contact between UBooster and either the athlete or any particular school. For that reason, the founder, Dr. Rob Morgan, believes this does not violate NCAA rules and, in fact, offers a way to allow fan involvement while easing the financial burden on universities to do more to help athletes.

The former head of the NCAA's Committee on Infractions calls this "far more sophisticated than the hundred-dollar handshake," but I am not sure it is a meaningful difference in kind. Student-athletes are still receiving money because they are student-athletes and because of their athletic ability, and the lack of a direct connection among student-athlete, school, and donor does not change that; in fact, the NCAA's point is specifically to keep "strangers" from giving student-athletes money, regardless of connection to the school. Nor does the four-year delay in getting the money change much--it is still money for playing a sport, whether the benefit is received immediately or in a few years. I also do not believe the absence of an express quid pro quo (the student-athlete gets the money, regardless of where he ultimately plays) makes a difference; the NCAA regs are designed to avoid bidding wars and allowing the athlete to keep everything is not going to alleviate (or necessarily disincentivize) such bidding wars.

Mind you, I am not speaking in support of the NCAA's regs or the current model of college sports. I am only saying that, under those rules, any student-athlete who participates in this (and any school for which he plays) is in for some problems.

Friday, December 04, 2015
 
MIT Lecture: The Law and Science of Deflategate



If you're interested in the law and science of Deflategate, we hope that you attend a special lecture at the Massachusetts Institute of Technology on Friday, Dec 11th from 2:30 to 4 pm. MIT Professor John Leonard--who authored the Taking the Measure of Deflategate study, as presented at UNH Deflategate--will be joined MIT Professor Annette (Peko) Hosoi--the founder and director of STE@M (Sports Technology and Education @ MIT)--and me in a joint lecture. The event will be open to the public but with limited seating and you must register at this Eventbrite page to secure a seat.

Here are more details:


The Law and Science of Deflategate

2:30-4:00pm, Friday December 11th, Room 3-270
Massachusetts Institute of Technology
77 Mass. Ave., Cambridge MA 02139
[Seating is limited]

Speakers: Michael McCann, University of New Hampshire School of Law and Sports Illustrated; John Leonard, MIT Department of Mechanical Engineering; and Annette (Peko) Hosoi, MIT Department of Mechanical Engineering

Abstract: Prof. McCann, Prof. Leonard, and Prof. Hosoi will lead a joint discussion of some of the key legal and scientific questions about the Deflategate Controversy.  Topics will include: (1) a review the key legal theories of Brady vs. NFL case, including a discussion of the constraints imposed by the collective bargaining agreement agreed upon by the NFLPA and an analysis of the NFL Management Council's latest filing to the United States Court of Appeals for the Second Circuit against Judge Berman's decision to vacate the discipline imposed on Tom Brady by Roger Goodell; (2) discussion of the findings of the Wells/Exponent report and a review the underlying physical principles at the heart of the case, including the ideal gas law and the transient response of the warming of the Patriots and Colts footballs that occurred during the halftime measurement period; and (3) a critique of the methodology that Exponent, Inc. used to reach its claim that "no set of credible environmental or physical factors that completely accounts for the additional loss in air pressure exhibited by the Patriots game balls as compared to the loss in air pressure exhibited by the Colts game balls measured during halftime of the AFC Championship Game."

Speaker Bios:

Michael McCann is a Professor of Law and the Founding Director of the UNH Law Sports and Entertainment Law Institute (SELI). SELI, which is part of the top-ranked Franklin Pierce Center for Intellectual Property, offers students hands-on training and experiential opportunities in this cutting-edge area of law.  McCann is one of the nation's leading experts in sports law, a seasoned sports attorney, and an award-winning teacher, scholar and journalist. He is Sports Illustrated's Legal Analyst, an Investigative Writer for both Sports Illustrated and SI.com, and the on-air Legal Analyst for NBA TV. McCann has authored more than 400 legal columns and investigative articles for Sports Illustrated and SI.com and is a key member of Sports Illustrated's investigative team.
http://law.unh.edu/about/personnel/faculty/michael-mccann-bio

John J. Leonard is Samuel C. Collins Professor of Mechanical and Ocean Engineering and Associate Department Head for Research in the MIT Department of Mechanical Engineering.  His research addresses the problems of navigation and mapping for autonomous mobile robots.  He holds the degrees of B.S.E.E. in Electrical Engineering and Science from the University of Pennsylvania (1987) and D.Phil. in Engineering Science from the University of Oxford (1994).  Prof. Leonard has been one of the faculty instructors in the MIT Mechanical Engineering subject 2.671 Measurement and Instrumentation since 2005.
https://marinerobotics.mit.edu/

Annette (Peko) Hosoi is Professor of Mechanical Engineering and Associate Department Head for Education in the MIT Department of Mechanical Engineering.  She is the founder and director of STE@M (Sports Technology and Education @ MIT) which is dedicated to building an interconnected community of faculty, students, industry partners, and athletes who are passionate about tackling challenges that lie at the intersection of engineering and sports.  Prof. Hosoi's research contributions lie at the juncture of nonlinear hydrodynamics,
microfluidics and bio-inspired design.  She is the recipient of numerous teaching awards at MIT and has been elected a MacVicar Fellow, MIT's highest undergraduate teaching award.  She is a Fellow of the American Physical Society.  
https://hosoigroup.wordpress.com/
http://steam.mit.edu/


Tuesday, October 27, 2015
 
Salary Arbitration in Sports Conference

On Thursday, November 19th a trio of veteran sports agents will host the inaugural Salary Arbitration in Sports conference at St. John's University School of Law in Queens. The SAS conference will feature representatives from Major League Baseball, MLBPA, certified agents and former players, all with comprehensive experience in salary arbitration.

Hear from salary arbitration experts and industry veterans:

  • Jason Belzer, GAME, Inc. and Forbes.com;
  • Gregg E. Clifton, Jackson Lewis, P.C.;
  • Jeff Fannell of Jeff Fannell & Associates;
  • Rex Gary, Turner Gary Sports;
  • Paul Mifsud, Labor Relations, MLB;
  • Omar Minaya, MLBPA;
  • Mike Nicotera, The Sparta Group;
  • C.J. Nitkowski, Former MLB Player;
  • Jay Reisinger, Farrell & Reisinger, LLC;
  • John Ricco, NY Mets;
  • Rick Shapiro, MLBPA; and
  • Matthew Swartz, MLB TradeRumors.

At the SAS Conference, seasoned participants in the art of salary arbitration will share their insights and experiences through a full day of panel discussions and question-and-answer sessions. The conference is the inspiration of experienced certified sports agents Jeff Fannell, Mike Nicotera and Rex Gary. FrontOfficeSports.org, one of the Nation's fastest growing sources for #Sportsbiz insight and education will serve as the conference's digital partner.

Reserve your seat TODAY and receive an early bird discount using code "EARLY" at http://SalaryArbitration.org. Space is limited.



Monday, October 12, 2015
 
Baseball and Viewpoint Discrimination?

As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
CQXQRj0WoAQQiVP This is the student's plea.










CQXQRj3XAAAXULZAnd this is the professor's response










Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?

Thursday, October 08, 2015
 
UNH Law panel on Cardinals-Astros Hack and Analytics Security for Teams

Image from the Pandora Society

You are invited to attend a panel discussion at the University of New Hampshire School of Law next Thursday, October 15, from 5:30 to 7:00 pm on the legal and technology implications of the St. Louis Cardinals alleged hacking into the Houston Astros server. The panel will also address the broader topic of analytics security for sports teams.

Here is the lineup:

Moderator

Professor Roger Ford of UNH Law. Professor Ford teaches and writes in the areas of intellectual property, law and technology, and privacy. 






Panel:

Mandy Petrillo, the Director of Legal Operations of the Boston Red Sox (Fenway Sports Management). 






Bob Ryan, longtime columnist for the Boston Globe and contributor to ESPN's Pardon the Interruption and Around the Horn. Bill Simmons has called Bob Ryan "the best basketball writer ever."







Sean Smith, the Director of the Institute of Security, Technology and Society at Dartmouth College






Mark Szpak, partner at Ropes & Gray, where he is a member of the firm's nationally-ranked data breach and privacy group






Excellent work by students Daniel Schwartz and Amanda Ramirez-Kelmer organizing this event. 

For driving directions to UNH Law in Concord, NH, click here. Hope to see you next Thursday!

Wednesday, October 07, 2015
 
Thabo Sefolosha Trial

The New York City trial of Atlanta Hawks guard Thabo Sefolosha has begun. My Sports Illustrated legal analysis on what to expect.

Tuesday, October 06, 2015
 
Impact of Insider Trading allegations on legality of Daily Fantasy Sports

I have a new article for Sports Illustrated on how allegations of insider trading may impact the legal of daily fantasy sports. Also be sure to see the excellent commentary by our colleague Daniel Wallach in today's New York Times.

Monday, October 05, 2015
 
New Law Review Article: The Curiously Confounding Curt Flood Act

As most sports law enthusiasts are well aware, although Major League Baseball has traditionally benefited from a judicially created antitrust exemption, it does not enjoy blanket antitrust immunity across all of its operations. Most notably, in 1998 Congress passed the Curt Flood Act, a law partially repealing baseball's exemption in order to allow major league players to file antitrust lawsuits against MLB.

Throughout Congress's deliberation of the Flood Act, legislators made it abundantly clear that the legislation was intended to remain neutral regarding the continued viability and scope of the rest of baseball's antitrust exemption. Nevertheless, a number of courts and academic commentators have read the law quite differently, concluding that it either explicitly or implicitly reflects Congressional acquiescence in the exemption. This was the position recently adopted by both the district and appellate courts in the City of San Jose v. Office of the Commissioner of Baseball litigation, for instance, the lawsuit challenging MLB's refusal to approve the relocation of the Oakland A's to San Jose. The implication of these analyses is that baseball's antitrust exemption has now effectively been codified by Congress, meaning that the courts no longer have the power to repeal the exemption, should they be so inclined.

I challenge this interpretation of the Flood Act in a new law review article, "The Curiously Confounding Curt Flood Act," forthcoming next year in the Tulane Law Review. In particular, my article advances a novel textualist interpretation of the Flood Act, contending that when properly read, the law neither expressly nor implicitly approves of the bulk of baseball's antitrust exemption. As a result, I conclude that the judiciary retains the power to reconsider baseball’s antitrust status, should a future court wish to do so.

The piece can be downloaded here. I'd greatly appreciate any comments or feedback.