Sports Law Blog
All things legal relating
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Wednesday, October 01, 2014
 
Rethinking the NBA's Domestic Violence Policy

I interviewed NBPA Executive Director Michele Roberts for my new Sports Illustrated commentary on the NBA's domestic violence policy. Hope you have a chance to read it. Here is an excerpt:
Some commentators have highlighted the Celtics suspending Jared Sullinger in 2013 for an altercation with his girlfriend as a blueprint for addressing NBA players implicated in domestic violence. Yet Sullinger's situation is unlike the one facing Taylor. The Celtics only suspended Sullinger after criminal charges were dropped, meaning the suspension could not have prejudiced the criminal case against Sullinger or tainted a potential jury pool. It was also a one-game suspension that Sullinger, who acknowledged he could have used better judgment, accepted without opposition. What happens if the NBA or a team suspends a player while criminal charges are still pending? Would prosecutors subpoena the NBA or the player's team for its investigatory findings and then use the evidence against the player? Or what happens if a player adamantly denies the accusation? Is a league or team really in a position to know if the player is lying or telling the truth? Does it want to be in that position?


Tuesday, September 30, 2014
 
DOJ Argues No Such Thing as "Unregulated" Sports Betting Since Casinos & Racetracks Still Subject to Licensing Requirements; Backtracks on Prior Statements that NJ Free to Repeal Sports Betting Ban

Late last night, the United States Department of Justice (the "DOJ") filed its memorandum of law in opposition to New Jersey's motion to clarify and/or modify the federal court injunction that has been in place since February 28, 2013 prohibiting the State from authorizing, licensing or regulating sports wagering at casinos and racetracks.

The DOJ's opposition brief largely mirrors the Leagues' brief filed earlier in the day, but it is noteworthy in two respects. First, as expected, the DOJ argues that any "repeal" of the state-law prohibition on sports wagering which is limited solely to casinos and racetracks would still run afoul of the Professional and Amateur Sports Protection Act ("PASPA") because New Jersey's casinos and racetracks remain subject to an extensive licensing and regulatory scheme by the State. Thus, as the DOJ points out, "even under an attempted reformulation of the Sports Wagering Act, it would still be impossible to operate a sports wagering pool without first having a State-issued license." The DOJ argues that "[a]s long as the only entities that may engage in sports wagering must be licensed by New Jersey, New Jersey is in effect licensing sports wagering, which is squarely within PASPA's licensing prohibition."

Second, the DOJ backtracks from its prior statements that New Jersey is free to repeal its state-law prohibition against sports wagering "in whole or in part" without violating PASPA. As I detailed in an earlier post, the DOJ (through U.S. Attorney Paul Fishman and U.S. Solicitor General Donald Verrilli, Jr.) made these unequivocal statements throughout the prior judicial proceedings, including in appellate briefing before the Third Circuit, at oral argument, and in a filing made with the U.S. Supreme Court. In his Third Circuit brief, Mr. Fishman wrote that "nothing in [PASPA] requires New Jersey to maintain or enforce its sports wagering prohibitions." Later, when asked at the June 26, 2013 oral argument whether New Jersey could "repeal" its ban against sports wagering, Mr. Fishman responded "[a]s a matter of law, it could." When further pressed by the Third Circuit panel if such a repeal would violate PASPA, Mr. Fishman responded by saying "no." The U.S. Solicitor General reaffirmed this position ten months later in a filing with the Supreme Court when he stated that "PASPA does not even obligate New Jersey to leave in place state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part." (United States Brief to the Supreme Court in Opposition to Petitions for Writ of Certiorari (Nos. 13-967, 13-979 & 13-980), dated May 14, 2014, at p. 11)

How does the DOJ retreat from such clear and unequivocal statements? Easy. By ignoring two of them, and pointing to less damaging statements that are susceptible to differing interpretations. On page 17 of its opposition brief, the DOJ identifies three "selectively quoted" statements that New Jersey cites as evidencing the DOJ's acknowledgement that a partial repeal of the state-law prohibition on sports betting would not violate PASPA:
On page 28 of the appellate brief for the United States; Nothing in the statute requires New Jersey to maintain or enforce its sports wagering prohibitions." 
"On page 30 of the appellate brief for the United States: "[T]he bare repeal or non-enforcement of New Jersey's sports wagering prohibitions would not constitute such an 'authorization' because there would be no State statute or compact granting anyone authorization. to conduct sports wagering."
 At pages 68 and 69 of the appellate oral argument transcript; "[I]f New Jersey wants to tinker with its gambling statute in a reasonable exercise of state law and enforcement power, it's perfectly free to do that."
(DOJ Brief, p. 17)

While accusing New Jersey of using "selectively quoted" statements, isn't the DOJ guilty of the same thing here? There is no mention of Mr. Fishman's acknowledgment at oral argument that New Jersey was free to repeal its sports betting ban and that doing so would not violate PASPA. Nor is there any reference to the U.S. Solicitor General's incredible statement (from his Supreme Court filing) that New Jersey is free to repeal its state-law prohibitions "in whole or in part." It's as if the DOJ used hydrofluoric acid (Walter White-style) to make those prior statements disappear.

The DOJ offers an entirely unconvincing explanation as to the import of those prior statements (at least the ones that the DOJ has chosen to address). The DOJ contends that New Jersey has "misread" those statements and that it meant only to say that New Jersey has "options" when it comes to sports betting:
"These identified quotations reflect the United States' acknowledgment that New Jersey has options regarding sports wagering if it wishes to forego the licensing and the authorizing by law of sports wagering (as well as the other conduct prohibited by PASPA). The presence of those options demonstrates that there is no unconstitutional compulsion as New Jersey incorrectly suggests."
(DOJ Brief, pp. 17-18)

This does not even pass the giggle test. Expect New Jersey to hammer the DOJ on this point in its Reply Brief. But that doesn't necessarily mean that New Jersey will prevail on its motion. Far from it. As I wrote previously, I expect New Jersey's motion to be denied. It's not even a close call, as New Jersey's "implied repeal" and "severability" arguments are rather flimsy. But the real danger here is that Judge Shipp may go even further than just denying New Jersey's motion; he may clarify the injunction in a manner that is detrimental to New Jersey's future legislative efforts. For example, he could broaden the injunction to include language stating that while New Jersey is free to repeal its state-law prohibition against sports betting, it cannot limit such repeal to the State's racetracks and casinos given that they remain subject to an extensive state licensing and regulatory regime. Given the low likelihood of success, maybe New Jersey's best play here is to simply withdraw the motion, and focus on more legally sustainable efforts to bring sports betting to the Garden State. The moral of this story: Be careful what we wish for.

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Monday, September 29, 2014
 
Sports Leagues Push Back on New Jersey's Latest Sports Betting Gambit: Call Such Efforts "Disingenuous," "Astounding", "Specious," and a "Blatant Violation" of Federal Court Injunction

In a post two weeks ago, I analyzed Governor Christie's latest strategy for bringing single-game sports betting to the Garden State: by arguing in a federal court motion that the state-law prohibitions against sports wagering have already been repealed through the enactment of the New Jersey Sports Wagering Law, even though that particular legislation was found by two different federal courts to be preempted by the Professional and Amateur Sports Protection Act. ("PASPA"). Governor Christie had argued, I believe unconvincingly, that the portion of the legislation allowing casinos and racetracks to "operate sports pools" could be "severed" from the portion of the law authorizing the state to "license" sports betting (the part found to be in express conflict with PASPA).

Earlier today, the four major professional sports leagues and the NCAA filed their joint response in opposition to Governor Christie's motion. The Preliminary Statement wastes no time laying waste to the Governor's main legal arguments. Here are some of the highlights:
  • "This motion reflects defendants' latest unlawful attempt to authorize sports wagering in New Jersey's casinos and racetracks."
  • "Contrary to this Court's decision and defendants' prior position -- as well as to the very words of the Sports Wagering Law itself -- the Governor takes the astounding position that, in providing that casinos and racetracks 'may operate a sports pool," the Sports Wagering Law does not 'authorize' sports wagering, but simply repeals the State's existing prohibition on sports wagering. This despite the fact that throughout the litigation, defendants consistently asserted that the Sports Wagering Law authorized casinos and racetracks to operate sports wagering games."
  • "Moreover, even in their current motion, defendants expressly acknowledge that sports pools operated by racetracks and casinos pursuant to the Sports Wagering Law would be subject to all of the laws and regulations that apply to those venues, including the extensive legislation and licensing and regulatory scheme addressing gambling in New Jersey's Casino Control Act, N.J. Stat. Ann. s 5:12-1 et seqIn other words, this Court's injunction has no practical effect whatsoever on New Jersey's ability to accomplish precisely what PASPA prohibits."
In the main portion of their opposition brief, the Leagues characterize New Jersey's implied repeal argument as both "improper" and "disingenuous," pointing to the plain language of the Sports Wagering Law, the two prior court rulings, statements made in the defendants' prior court filings, and the recent unsuccessful legislative repeal efforts:
  • "The plain language of the Sports Wagering Law readily refutes defendants' new reading, as the phrase 'may operate' is as clear an authorization as one could imagine. In fact, both this Court and the Third Circuit have recognized that the Sports Wagering Law is an attempt to authorize sports gambling, not to 'repeal' existing prohibitions."
  • "So, too, have defendants, who repeatedly represented--including throughout this litigation--that the Sports Wagering Law does in fact seek to authorize sports gambling."
  • "Immediately after this litigation (seemingly) concluded, the State Legislature attempted to enact legislation that purported to repeal sports wagering prohibitions at casinos and racetracks--legislation that would have been wholly unnecessary had the Sports Wagering Law accomplished that end."
On the related issue of "severability," the Leagues argue that the defendants' attempt to sever only five words ("may operate a sports pool") from the Sports Wagering Law's authorization of sports wagering "utterly misconstrues" the doctrine of severability. As the Leagues explain in their joint response, "[t]he critical inquiry for severability is legislative intent, which 'must be determined on the basis of whether the objectionable feature of the statute can be excised without principal impairment of the principal object of the statute.'" 

The Leagues argue that the legislative intent behind the Sports Wagering Law was to enact a "licensing regime" that would shift illegal economic activity into legal channels where it could be monitored, regulated and appropriately taxed. They point to the 2010 public hearings during which legislators "expressed a desire to 'stanch the sports-wagering black market flourishing within New Jerseys borders.'" And, as icing on the cake, the leagues quote directly from a Third Circuit brief filed by two New Jersey legislators (Stephen M. Sweeney and Sheila Oliver) in which they stated that unregulated sports betting "would be contrary to the considered judgment of the Legislature and the expressed desire of their constituents." Based on the foregoing, the Leagues conclude that "Defendants--and this Court--cannot, consistent with legislative intent underlying the Sports Wagering Law, sever the law's provision authorizing casinos and racetracks to operate sports gambling from its requirements that any sports gambling in New Jersey (i) be authorized and approved by the [state regulators]; and (ii) conform to the licensing requirements of the Casino Control Act and the regulations promulgated thereunder."

The Leagues also take issue with the notion that there can ever be such a thing as "unregulated" sports betting at New Jersey's casinos and racetracks, since they would still remain subject to an extensive licensing and regulatory regime in New Jersey (whether there is sports betting or not). Indeed, the Leagues stress, "virtually every detail concerning the operation of casinos and racetracks is heavily regulated by both State law and by regulations promulgated by the DGE and Racing Commission." For example, State regulations upon casinos and racetracks include licensing and permitting requirements, specifications on equipment used for gambling, and payment to the State of a portion of revenue derived from casino and racetrack wagering. As the Leagues point out, even the defendants have stated that these requirements "will apply equally to sports wagering if the provision of the Sports Wagering Law providing that casinos and racetracks 'may operate a sports pool' is reinstated. Thus, the Leagues argue that this would leave New Jersey "free to accomplish precisely what the Sports Wagering Law was enacted to achieve: state-regulated sports wagering in casinos and racetracks," adding that "[n]ot only is [such a] result flatly inconsistent with this Court's injection, it is flatly inconsistent with PASPA." 

Finally, the Leagues argue that, under no circumstances, could sports wagering be conducted at Monmouth Park or at the Meadowlands because those two racetracks are owned and operated by the New Jersey Sports and Exposition Authority, a state governmental entity. Based on the state's ownership of those racetracks, the Leagues contend any sports wagering conducted at either the Monmouth Park or at the Meadowlands "would violate the provisions of PASPA that prohibit a State from directly sponsoring, operating, or advertising sports wagering, regardless of whether those facilities purport to offer gambling pursuant to a state authorization or a state repeal."

As of the this writing, the Department of Justice has not yet filed its response brief. But if past practice is any indication, I would expect the DOJ to file a response shortly (i..e, before midnight tonight).

New Jersey is now on the clock, with its Reply Brief due on October 10.

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Saturday, September 27, 2014
 
Article in this week's issue of Sports Illustrated on NFL Tax exempt status

I hope you have a chance to check out this week's issue (September 29, 2014) of Sports Illustrated - I have an article on new legislative proposals in Congress to end the NFL's tax exempt status. My piece is on page 28, right before Tom Verducci's cover story on Derek Jeter. While I'm often critical of the NFL, I'm not convinced that amending 501(c)(6) to punish the NFL for domestic violence issues or to force a change to the Redskins name is the best vehicle of addressing those issues.

Keep in mind, almost all of the $9.5 billion generated annually by the NFL is already subject to income taxes (the NFL uses four for-profit subsidiaries to generate most of the league's revenue, and the 32 for-profit teams generate almost all of the rest of the revenue; the NFL itself--which is the tax-exempt entity--has reported losses in two of the last three years). Also, other pro leagues, including the U.S. Golf Association and PGA Tour, would likely be more affected by some of these legislative changes, and they are not the primary intended targets of the legislative proposals. Lastly, non-sports entities protected by 501(c)(6) operate similarly to the NFL as trade associations of for-profit companies.

To read the article you'll need to subscribe to SI or pick up this week's issue.

Here's an excerpt of the article:

Taxing the league office would lead to modest tax income at best. In the last three tax filings that are publicly available, the NFL reported income of $9 million in 2012, and losses of $77.6 million in 2011 and $52.2 million in 2010. How could the NFL lose money? Because the NFL doesn’t make money. The NFL’s main source of revenue is the membership dues paid by the teams, approximately $6 million each. This revenue is used to pay the hefty salaries of league executives, including commissioner Roger Goodell, who earned $85 million in compensation from 2010 through ’12 (on which he paid personal income tax). The dues also pay rent for the NFL’s New York City offices.



Friday, September 26, 2014
 
Bright Days in the MLB

            What are the odds? Baseball’s most beloved hero is playing his last game in the media capital of the world and America is watching. His team is ahead by 3 runs in the ninth. On the mound is the Yankees All Star closer, David Roberts, the heir apparent to Mariano, who has given up just 5 homers in 63 innings. He grooves a high fastball to Adam Jones, a high ball hitter, who hits a moon shot over the left field fence to bring the Orioles to within one run. Then with two outs, he grooves another down the middle of the plate to Steve Pierce. Game tied.

            Bottom of the ninth. The Orioles need the win to secure home field advantage in the playoffs. Nevertheless, two time manager of the year Buck Showalter (and a clinch to win his third) calls to the mound aptly named Evan Meek,  O and 4 for the year with a 5.79 ERA. Yankee Jose Pirela, first up,  strokes a single to left. Antoan Richardson, called on to pinch run, reaches second when Brett Gardner lays down the perfect sacrifice bunt. Now Jeter walks to the plate with the crowd on its feet and Jeter’s long time mates Jorge Posada, Andy Pettit and Mariano Rivera waiting stage left. First pitch right down the middle and the Captain slices a ground ball into right field. Nick Markakis plays it perfectly and fires a strike to the catcher who cannot take in the throw. Ball game over. The hero is rushed by his teammates. The perfect ending to a perfect career. Almost too perfect.

            Sources close to me are convinced this was all some elaborate conspiracy. Just Google “Derek Jeter conspiracy” and browse through the 10s of thousands of hits. Others say Jeter has made a career out of being in the perfect place at the perfect time. He does have nine other walk offs including one in game 4 of the 2001 World Series.

            Let’s just say we all needed a feel good moment at a time when the news lately, including the sports news, has been rather troubling. And it happened on Rosh Hashanah, the birthday of the universe. So what was one more miracle for the maker of miracles.

 
UNH Law Panel: Put the Coach on the Line

I'm very excited about our upcoming Sports and Entertainment Law Institute panel at the University of New Hampshire School of Law. The panel, titled Put the Coach on the Line, is based on a paper authored by UNH Law third-year student John DeWispelaere. Through empirical research, John argues that NHL coaches should be punished when they send out players to injure others. John's paper has just been accepted for publication in the Virginia Sports and Entertainment Law Journal. Congrats to John on this outstanding placement!

The event will be held on October 22 at 5:30 pm and will be open to the public. We hope to see you there!

Put the Coach On the Line:  An Alternative Approach to Increasing Player Safety in the NHL

Put the Coach On the Line: An Alternative Approach to Increasing Player Safety in the NHL

Put the Coach on the Line: An Alternative Approach to Increasing Player Safety in the NHL

This event is open to the public.
Please RSVP to Mary O’Malley, faculty assistant to the Franklin Pierce Center for Intellectual Property, atmary.omalley@law.unh.edu.

Schedule of Events

Alexandra J. Roberts
5:30 p.m.
Opening remarks by Alexandra J. Roberts, Assistant Professor of Intellectual Property,
Executive Director, Franklin Pierce Center for Intellectual Property
John DeWispelaere
5:35 p.m.
Third-year UNH Law student and Becker & Poliakoff legal resident John DeWispelaere presents his forthcoming law review article, “Put The Coach on the Line: An Alternate Approach to Increasing Player Safety in the NHL.” The article will be published this fall in the Virginia Sports and Entertainment Law Journal, a publication of the University of Virginia School of Law. 
5:45 p.m.
Second-year UNH Law student and The Pink Puck associate editor and writer Jessica Higham offers a response
Michael McCann
6:00 p.m.
Panel discussion, moderated by Michael McCann, Professor of Law,
Director, Sports and Entertainment Law Institute

with panelists:

Dmitry Chesnokov
Dmitry Chesnokov, Sports and entertainment attorney at Hobson Bernardino + Davis LLP and NHL writer for Yahoo! Sports
Paul Kelly
Paul Kelly, Shareholder at Jackson Lewis and former Executive Director of the National Hockey League Players’ Association
Gregory Moffett
Gregory Moffett, Director at Preti Flaherty and former goaltender in the Montreal Canadians system
Michael Wall
Michael Wall, Vice President, General Counsel, and Corporate Secretary of Performance Sports Group/Bauer and former Chief Legal Officer of the TD Garden and the Boston Bruins
Eleanor MacLellan
7:15 p.m.
Networking Reception
Directed by Assistant Dean of Career Services Eleanor MacLellan in the Douglas Wood Boardroom


Thursday, September 25, 2014
 
Should League Commissioners Even Have a Role in Disciplining Players for Off-Field Misconduct?

One of the more interesting points I heard from the NFL commissioner during his "breaking news report" last week was that the NFL would begin looking into the use of independent experts in the process of imposing discipline on players for off-field misconduct.  On this blog in 2007, I posed the question whether the NFL's personal conduct policy affords the commissioner too much discretion.   In my post, I discussed some of the inherent problems and concerns associated with league discipline of players for off-field misconduct.  The NFLPA and the NFL would both benefit from a collectively bargained system of independent impartial review, and perhaps they are moving in that direction.

My question today takes it a step further and asks whether league commissioners should even have a role in player discipline for off-field misconduct.  In other words, should the leagues get out of the business of suspending players for their misdeeds that occur off the field?  The NCAA, for example, draws a line between off-field and on-field behavior and takes the position that discipline for the off-field misconduct is the responsibility of the individual schools.

I have always questioned whether such discipline at the league level even falls within the overall purpose for which the league has been formed and whether it is more appropriate for such discipline to be left at the employer/employment level.  Why is it the league's business or concern how a club decides to resolve an off-field misconduct issue with its player?  The justification for it seems to be that off-field misconduct impacts the league's reputation and image -- a proposition that I have never fully accepted.  But nonetheless, why can't we assume that each club has an incentive to do what is appropriate from an image/reputation standpoint and make a good business decision under the facts and circumstances of each case?  If the club makes a bad or wrong decision, then the club bears any negative consequences that might flow from it, as it should.

Wednesday, September 24, 2014
 
Tony Stewart's future after grand jury declines to charge him

I have a new column for Sports Illustrated on a grand jury declining to charge Tony Stewart, who still faces a likely wrongful death lawsuit.

Monday, September 22, 2014
 
The NFL, Ray Rice and Sports Law through Press Conferences

In a new column for Sports Illustrated, I take issue with press conferences by NFL commissioner Roger Goodell and Baltimore Ravens owner Steve Bisciotti.

 
New Sports Law Scholarship

Recently published scholarship includes: 
Jennifer M. Adams, Comment, Flag on the play: professional sports teams calling trademark infringement on their superfans, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 631 (2013) 
Jeremy R. Abrams, Comment, Making the right call:  why fairness requires independent appeals in U.S. professional sports leagues, 97 MARQUETTE LAW REVIEW 469 (2013)  
Jack Anderson, The right to a fair fight: sporting lessons on consensual harm, 17 NEW CRIMINAL LAW REVIEW 55-75 (2014) 
Erin P. Andrews, Note, Avoiding the technical knockout: tackling the inadequacies of youth concussion legislation, 58 NEW YORK LAW SCHOOL LAW REVIEW 417 (2013/2014)
Francis X. Baker, Comment, “Half mental”: resolving the risks posed by dual competencies in applied sport psychology, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 185 (2014) 
Daniel Berger, Constitutional combat: is fighting a form of free speech? The Ultimate Fighting Championship and its struggle against the state of New York over the message of mixed martial arts, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 381(2013) 

Read more »

 
Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

Saturday, September 20, 2014
 
Some Perspective, Please

The current NFL crisis is entirely of Goodell’s own making. A professional football player is caught on videotape punching his fiancé. The league’s commissioner hands out a woefully inappropriate two game suspension. He now admits he was wrong and advises the league will revamp its Personal Conduct Policy and have every player undergo “abuse awareness training.”

The media and public response? In national publications and across social media, NFL players are characterized as “common street thugs.” When I read that word “thug” again and again, I hear Seattle cornerback Richard Sherman correctly telling us “Thug is the new N-word.” In America, it does not take long for racism to rear its ugly head, particularly when it comes to attitudes toward professional athletes.

Let’s have some perspective, always a difficult task in the world of sports. There are 1696 players in the NFL and another 250 or so on practice squads. In Goodell’s 8 years as commissioner, there have been 57 cases of domestic abuse or 7 cases a year. That comes to about .5%, which is less than half the rate across the country. No doubt these numbers are low because many cases are unreported, but there is no reason to believe the percentage of unreported cases is greater in the NFL than across the general population. The highest rate of such offenses is in Nevada followed by most of the southern states. Those in law enforcement have a rate double the national average. Indeed, Alabama Federal District Judge Mark Fuller plead guilty two weeks ago to violently beating his wife in a deal that will have his record expunged once he undergoes counseling. The rate of domestic violence by players in the NFL is thus considerably less than for those who work in other occupations.

This is not to suggest domestic violence is a minor offense. Ray Rice committed a despicable act and the Commissioner should have handed down a punishment worthy of the offense. But let’s be wary of those who are quick to paint all NFL players or professional athletes generally with the same brush, particularly when they are working with an all too familiar palette.

Thursday, September 18, 2014
 
Dark Days in the ICC

Sports fans in America and readers of this Blog no doubt have had their fill of NFL players suspended for spousal assault and of MLBers like the Orioles Chris Davis removed from the game for taking banned substances like Ritilin. (Ritilin! Only fifth grade boys with sphilkes should be allowed to take such a thing.)

But athletes behaving badly are not confined to these shores. Consider the hubbub brewing in the lands where Cricket is king. The International Cricket Council has just suspended indefinitely one of the sport’s real stars, Pakistan's Saeed Ajmal. Ajmal is what Cricket fans know as an off spin bowler, meaning he uses his fingers and wrist to spin the ball toward a right-handed batsman or away from a lefthander. Essentially, he throws what we in the colonies think of as a slider. And he does it better than anyone.

Using the magic of videotape and rather sophisticated testing equipment at its headquarters in Dubai, the Council found definitive proof that Ajmal (sit down if you are squeamish) bowled all his deliveries with an elbow flex greater than the legal limit of 15 degrees. That’s right: greater than 15 friggin degrees.

As you probably know, a cricket bowler (think pitcher) is not allowed to straighten his arm and throw the ball (the cricketeers call this “chucking” and the result is a “no ball”). Only his shoulder’s rotation can provide velocity. The legal limit of straightening the elbow is 15 degrees and, as I said before, Ajmal’s elbow routinely went beyond that limit.

The last time Cricket had such a controversy was the famous “no ball” scandal of 1995, when Australian Umpire Darrell Hair no balled Sri Lankan bowler Muttiah Muralitharan seven times in three overs for throwing, calling the Shri Lankan’s actions “diabolical.” When the Council investigated the incident, it found the bowler had a congenital elbow deformity that caused his peculiar delivery. The ICC later found the Umpire, who received numerous death threats after the match, guilty “of bringing the game into disrepute.”

Let it be said, we shrink from no controversies here at the Sports Law Blog. We abhor Ajmal’s suspension and consider the Council’s action just dreadful.

 

For those interested, the 9th Circuit is hearing the appeal of Barry Bonds' conviction and it is being livestreamed here
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Wednesday, September 17, 2014
 
Call for Papers: "The New Era in Gaming Law"

The Northern Kentucky Law Review and NKU Chase College of Law seek submissions for their symposium, "The New Era in Gaming Law," on March 20, 2015 in Highland Heights, Kentucky (just 7 miles from Cincinnati, Ohio).

OVERVIEW: The transnational character of gaming has generated difficult legal questions involving jurisdiction, regulation, and legality. Possible panel topics include online poker, sports betting, fantasy gambling, the Professional and Amateur Sports Protection Act, and the Unlawful Internet Gaming Enforcement Act. Related matters include public and private enforcement of anti-gaming statutes, constitutional issues pertinent to gaming (commandeering, the dormant commerce clause), jurisdictional issues, and taxation of gaming revenues and winnings.

The symposium will focus in particular on the interaction between extant legal and regulatory frameworks and the dynamic gaming industry. Participants will explore these issues and topics in light of recent judicial decisions and regulatory initiatives.

SUBMISSIONS & IMPORTANT DATES:
- Please submit materials here: nkylrsymposium@nku.edu
- Submission deadline for abstracts: October 13, 2014
- Submission deadline for first draft of manuscripts: December 15, 2014
- Submission deadline for completed articles: January 12, 2015
- Symposium date: March 20, 2015

LAW REVIEW PUBLISHED ARTICLE: The Northern Kentucky Law Review will review, edit, and publish papers from the symposium. Papers are invited from scholars and practitioners related to the program. Please submit a title and abstract (of 500-1000 words) or draft paper for works in progress. Abstracts or drafts should be submitted by email by October 13, 2014. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

FURTHER INFORMATION: For more information please visit or contact:
- Email nkylrsymposium@nku.edu
- Rick Pandorf, symposium editor: 513.886.4878
- http://bit.ly/1miCpTZ

 
Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player, could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

 
Michael Weiner Scholarship for Labor Studies

Major League baseball players are honoring the life of former MLBPA Executive Director Michael Weiner by creating a scholarship program to encourage the pursuit of a graduate-level degree in labor studies.

Beginning January 2015, the Players Trust will annually award up to five $10,000 scholarships to individuals dedicated to a career supporting workers’ rights.

To learn more and apply, please visit www.playerstrust.org or contact Hillary Caffarone at (212) 826-0809.

Applications must be submitted no later than Monday, November 10th 2014.

Tuesday, September 16, 2014
 
The Fallacy Behind New Jersey's Sports Betting Strategy

If ever there were a sports law case that had the proverbial "nine lives," it would have to be New Jersey's ongoing quest to legalize sports betting. Following his veto of two bills that would have partially repealed the state-law prohibition against sports betting, which itself was a response to the Supreme Court's refusal to hear New Jersey's constitutional challenge to the Professional and Amateur Sports Protection Act ("PASPA"), New Jersey Governor Chris Christie last week embarked on a bold new legal strategy designed to bring sports betting to the Garden State.

First, the New Jersey Attorney General issued Formal Opinion 1-2014 which concluded that casinos and racetracks would not be committing a criminal offense under New Jersey law if they were to accept wagers on professional and college sporting events (excluding those collegiate games involving New Jersey colleges or taking place in New Jersey). Second, the Attorney General (joined by Governor Christie) filed a motion with U.S. District Judge Michael A. Shipp, the federal judge who permanently enjoined New Jersey from implementing its sports wagering law in February 2013 (that decision was later upheld on appeal by the Third Circuit). The new motion seeks a "clarification" of the injunction to explicitly recognize that New Jersey is not obligated to maintain the criminal prohibitions against sports wagering on its books and, further, that the "surviving portions" of the earlier legislation (which Judge Shipp held was preempted by PASPA) already "effect[ed] a repeal of New Jersey's prohibition of sports wagering in casinos and racetracks" without the need for further action. Alternatively, the motion seeks to "modify" the injunction to reflect the Third Circuit's explicit recognition that a State "may repeal its sports wagering ban" or "keep a complete ban on sports gambling" and "decide what the exact contours of the prohibition will be."

You might be asking yourself the following question: "Didn't New Jersey just lose in federal court?" While New Jersey's efforts to "regulate" sports wagering through a statutory licensing regime were unsuccessful because Judge Shipp and, later, the Third Circuit (by a 2-1 margin), concluded that the statute was preempted by PASPA, New Jersey is zeroing in on language in the Third Circuit opinion which purports to allow it to "repeal" its state-law prohibition against sports betting without violating PASPA. The pertinent language in the Third Circuit opinion reads:
[W]e do not read PASPA to prohibit New Jersey from repealing its ban on sports wagering. . . . [U]nder PASPA, on the one hand, a state may repeal its sports betting ban, a move that will result in the expenditure of no resources or effort by any official. On the other hand, a state may choose to keep a complete ban on sports gambling, but 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. We agree that these are not easy choices. And it is perhaps true (although there is no textual or other support for the idea) that Congress may have suspected that most states would choose to keep an actual prohibition on sports gambling on the books, rather than permit that activity to go on unregulated. But the fact that Congress gave states a hard or tempting choice does not mean that they were given no choice at all, or that the choices or otherwise unconstitutional.
National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 232-33 (3d Cir. 2013)

Seizing upon this language, the New Jersey Senate and State Assembly introduced legislation in June that would have repealed the state-law prohibition against sports wagering, but only for the benefit of casinos and racetracks. Governor Christie vetoed these bills on August 8, 2014, believing them to be a blatant "end-run" around PASPA that would not have survived judicial scrutiny. Governor Christie's motion tries a more creative approach: it argues that the state-law prohibitions against sports wagering have already been repealed by virtue of the 2012 legislation that was found to be preempted by PASPA. You might ask: "How can New Jersey still be relying on a state law that was struck down by the federal courts?" Simple. By arguing that the portion of the law providing that a casino or racetrack "may operate a sports pool" is "severable" from the portion of the law authorizing the state to "license" sports betting (the part found to be in express conflict with PASPA). Pointing to the statute's "severability clause," Governor Christie's motion posits that "the surviving portions of the Sports Wagering Act effect a repeal of New Jersey's prohibition of sports wagering in casinos and racetracks. . . ." (Governor Christie's Motion, at p. 5)

1.   New Jersey's Novel "Repeal" Theory is Unlikely to Succeed

Despite the optimism expressed on many fronts, New Jersey's gambit is unlikely to succeed. To begin with, New Jersey's sports wagering law (N.J.S.A. 5:12A-1 et seq.) did not expressly repeal the criminal prohibition against sports wagering in that state. The 2012 legislation does not even refer to the state-law prohibitions that would presumably cover illegal sports betting -- N.J.S.A. 2C:37-2 ["Promoting Gambling"] and N.J.S.A. 2A:40-1 ["Gaming Transactions Unlawful"]. Similarly, neither of these criminal statutes exempts sports betting at casinos and racetracks nor contains any reference to the 2012 legislation. It would have required only a modicum of effort to amend one or both of these statutes to read: "Nothing in this Chapter shall be construed to prohibit bets or wagers placed upon the outcome of any professional or collegiate sporting event in accordance with the provisions of N.J.S.A. 5:12A-1 et seq." It is likewise telling that the 2012 legislation does not contain the common introductory phrase -- "notwithstanding any law, rule or regulation to the contrary" -- in the allegedly "surviving" portion of the statute that provides that a casino or racetrack "may operate a sports pool." This is further evidence that the legislature did not intend to repeal either of the state-law prohibitions when it enacted the sports wagering law.

While statutes can be repealed "by implication," the New Jersey Supreme Court has cautioned that "there is a strong presumption in the law against [an] implied repealer and every reasonable construction should be applied to avoid such a finding." New Jersey Ass'n of School Adm'rs v. Schundler, 211 N.J. 535, 555-56, 49 A.3d 860, 872 (2012) (citing In re Comm'r of Ins.'rs Issuance of Orders A-92-189 & A-92-212, 137 N.J. 93, 99, 644 A.2d 576, 579 (1994)). To overcome that strong presumption, a high threshold must be vaulted: "'a repeal by implication requires clear and compelling evidence of legislative intent, and such intent must be free from reasonable doubt.'" Id.

New Jersey will not be able to overcome this presumption. Recent actions taken by New Jersey legislative officials are completely antithetical to any notion that an "implied repeal" has occurred. For example, in the Supreme Court petition filed by New Jersey Senate President Stephen Sweeney and New Jersey General Assembly Speaker Vincent Prieto in February 2014, those legislative officials conceded that "the citizens of New Jersey have not expressed support for allowing unregulated sports wagering." This is an acknowledgement by New Jersey's two highest-ranking legislative officers that, as of February 2014, the criminal prohibition against sports wagering had not been repealed. This directly contradicts the present position advanced by Governor Christie and Attorney General Hoffman in their motion. To be sure, at no point in the nearly two years of federal court litigation did New Jersey take the position that the criminal prohibition against sports wagering had been "repealed" by virtue of the 2012 legislation. There are no such statements in any of New Jersey's federal court filings--until now, that is.

Ironically, New Jersey points to statements made by its adversaries in the federal case to support its novel "implied repeal" argument. In Formal Opinion 1-2014, Attorney General Hoffman maintains that the Third Circuit "accepted" the position of the plaintiffs in the case, which he characterizes as having acknowledged that New Jersey repealed its prohibitions against sports wagering. (AG Opinion, at p. 2 [blending the DOJ's and leagues' briefs to read that "'nothing in [PASPA] requires New Jersey to maintain or enforce its sports wagering prohibitions, and, indeed, that New Jersey's 'repeal of its state-law prohibition on the authorization of sports wagering' itself was 'in compliance with PASPA.'"). But a close reading of the appellate briefs paints a far different picture. In his brief, United States Attorney Paul Fishman actually stated that "nothing in [PASPA] requires to New Jersey to maintain or enforce its sports wagering prohibitions," noting that "the Sports Leagues have not brought suit to enjoin New Jersey from repealing those pre-existing sports-gambling prohibitions," which he describes as a "hypothetical scenario."

Indeed, the Third Circuit opinion itself makes clear that any repeal of New Jersey's state-law prohibition against sports wagering would be prospective in nature. In rejecting New Jersey's argument that PASPA improperly commandeers the States to maintain their criminal prohibitions against sports wagering, the Third Circuit majority stated that "we do not read PASPA to prohibit New Jersey from repealing its ban on sports wagering." National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 232 (3d Cir.2013). Note the use of the "future tense" rather than the "past tense". This runs counter to any argument by New Jersey that the repeal had already occurred. Although the New Jersey Attorney General quotes from the federal government's answer brief before the Third Circuit, he overlooks a later Supreme Court filing made by the U.S. Solicitor General which states that PASPA "does not even obligate New Jersey to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part."

Likewise, at the June 26, 2013 oral argument before the Third Circuit, Paul Fishman (the United States Attorney for the District of New Jersey) conceded that New Jersey "could" repeal its prohibition against sports betting without violating PASPA, but stated that the reason "it hasn't been done" yet is because "it's a really, really bad idea":
MR. FISHMAN:  Mr. Olson [counsel for Governor Christie] said they can't change the law, they have to enforce the law on the books, they have to keep it illegal. None of that is true. . . . It is up to the State of New Jersey to determine for itself the extent to which it will or will not enforce that law. . . . 
THE COURT:  So New Jersey could repeal its ban on wagering on sporting events?
MR. FISHMAN:  As a matter of law it could. It would be incredibly irresponsible. 
THE COURT:  It would not violate PASPA?   
MR. FISHMAN:  No. But the reason it hasn't been done for 20 years or a hundred years is not because of PASPA. It hasn't been done because it's a really, really, really bad idea. It's irresponsible, it would be bad policy to just allow gambling to go unfettered. . . .
(Transcript, at pp. 66-68)

Moreover, the Attorney General's opinion on this issue cannot be reconciled with the recent New Jersey legislative efforts to partially "repeal" the ban on sports wagering. On June 23, 2014, the New Jersey Senate and State Assembly introduced identical bills (S2250/ A3476) that sought to "decriminalize" sports wagering at casinos and racetracks. Each bill contained a "Statement of Intent" acknowledging that the intent of the proposed legislation was to conform current law to statements made by the U.S. Solicitor General in a filing with the Supreme Court that "PASPA does not even obligate New Jersey to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part." And this week brought the announcement by New Jersey State Senator Ray Lesniak (D-Union) that he will soon introduce a bill that would "repeal" all prohibitions concerning sports wagering "at casinos or gambling houses in Atlantic City and at current running and harness horse racetracks in this State." This begs the question: if the prohibition against sports wagering had already been repealed by the 2012 legislation, then why even bother with the new legislation? These recent actions completely belie New Jersey's present position.

2.   Is the New Jersey Sports Wagering Law "Severable"?

I also question whether any portion of the 2012 legislation "survived" the federal court determination that the New Jersey sports wagering law was preempted by PASPA. This is a key hurdle for New Jersey to clear because it cannot claim that an "implied repeal" occurred without first demonstrating that the portion of the 2012 legislation purporting to repeal the prohibition against sports wagering can be "severed" from the portions of the law that were invalidated. Under the doctrine of "severability," a court can excise the invalid portions of a statute while leaving the remainder intact. This issue does not appear to have been addressed by either the district court or Third Circuit. But nothing in the two judicial opinions suggests that only "portions" of the 2012 legislation were invalidated. To the contrary, both opinions suggest that the entire law was stricken. See National Collegiate Athletic Ass'n v. Christie, 926 F. Supp. 2d 551, 577 (D.N.J. 2013) (determining that "New Jersey's Sports Wagering Law is preempted" and stating that "the enactment of the Sports Wagering Law is in violation of the Supremacy Clause."); National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 215 (3d Cir. 2013) ("New Jersey's sports wagering law conflicts with PASPA, and, under our Constitution, must yield. We will affirm the district court's judgment.").

For such an important threshold question, New Jersey's motion gives short shrift to the "severability" analysis, relegating it to a footnote. Therefore, I will attempt to explain the legal analysis that Judge Shipp will likely undertake in ascertaining whether the portions of New Jersey sports wagering law providing that a casino or racetrack "may operate a sports pool" (the so-called "implied repeal") can be severed from the "licensing" regime of that law.

When a federal court is called upon to invalidate a state statute, the severability of the constitutional portions of the statute is governed by state law. New Jersey courts employ a "commonsense approach" to severability, holding that an invalid provision is severable if that is in keeping with the legislative intent; legislative intent is ascertained by looking to the broad purpose of the statute, the degree to which the valid and invalid provisions are intertwined with one another, and the extent to which the statute remains comprehensive and logical after the invalid provisions are excised. See New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 597-98 (3d Cir. 1985)

At first glance, each of these factors points decidedly away from severability. The "broad purpose" of the New Jersey sports wagering law was to enact a "licensing regime" that would shift illegal economic activity into legal channels where it could be monitored, regulated, and appropriately taxed. During the public hearings, legislators also expressed a desire "to stanch the sports-related black market flourishing within New Jersey's borders." Christie, 730 F.3d at 217. The provision allowing casinos and racetracks to "operate a sports pool" (the so-called "implied repeal") is inextricably intertwined with the requirement that such activities be licensed and regulated. Indeed, the sentence which states that casinos and racetracks "may operate a sports pool" (contained in N.J.S.A 5:12A-2(a)) also expressly conditions such entitlement "upon the approval" of the New Jersey Division of Gaming Enforcement (for casinos) and the New Jersey Racing Commission (for racetracks) and further requires such activities to be undertaken "in accordance with the provisions of this act and applicable regulations promulgated pursuant to this act." Virtually the entirety of the act addresses issues relating to "licensing" and regulation." The licensing and regulatory aspects of the law are so dominant that once they are excised (since they were held to be in conflict with PASPA), the remainder of the statute would be largely an empty shell devoid of any logical structure.

3.   Assessment and Conclusion

Given these highly inconvenient facts, New Jersey faces an uphill battle to convince Judge Shipp to clarify the existing injunction to align with the Attorney General's view that the state-law prohibition against sports wagering was repealed by the 2012 legislation and that the "surviving" portions of the 2012 legislation exempt casinos and racetracks from civil or criminal liability. The best that New Jersey can realistically hope for is that the injunction will be "modified" to incorporate the Third Circuit's explicit recognition that a State "may repeal its sports wagering ban" or "keep a complete ban on sports gambling" and "decide what the exact contours of the prohibition will be."

But that might be a pyrrhic victory at best. Let's assume that the injunction is modified to incorporate the "wiggle room" afforded by the Third Circuit majority opinion. What would a future "repeal" actually look like? If it's anything like the June legislative measure (which released only casinos and racetracks from the law's clutches), it might not be worth the effort. The selective exclusion of casinos and racetracks might still run afoul of PASPA, which provides in Section 3702(1) that a governmental entity may not authorize or promote a sports-based wagering scheme even "indirectly." The recent proposed legislation -- removing only racetracks and casinos from the criminal prohibition -- certainly appears to be an "indirect" authorization of sports betting, and will likely be challenged by the leagues and the DOJ if and when it is signed into law. The problem with such a partial repeal is that it does not seek to repeal the prohibition against sports betting in toto; rather it releases only New Jersey's casinos and racetracks from the law's clutches (and subjects everyone else to the prohibition). Such a repeal too closely mimics the prior law.

And that is precisely why Governor Christie vetoed the proposed repeal. In his August 1st letter to the New Jersey Senate, Governor Christie disparaged the June legislative measure as "a novel attempt to circumvent the Third Circuit's ruling" and "an attempt to sidestep federal law." "Ignoring federal law, rather than working to reform federal standards," the Governor added, "is counter to our democratic traditions and inconsistent with the Constitutional values I have sworn to defend and protect." Clearly, Governor Christie was troubled by the "carve out" of casinos and racetracks in the recent legislative measure and believed (wisely) that it would not pass muster with the federal courts. The June measure -- releasing only New Jersey's casinos and racetracks from the criminal prohibition against sports wagering -- struck many observers, including me, as a "back-door" authorization of sports betting.

Previewing last week's court filing, the closing paragraph of the Governor's letter reassures state legislators that he "remain[s] open to legally sound ways to let the State's casinos and racetracks offer sports wagering." It is debatable whether the Governor's latest gambit is "legally sound." Just as the June legislative measure was likely headed for defeat in the federal courts (if it had been signed into law), so too is the Governor's novel but risky legal strategy. Both avenues seek to exempt only casinos and racetracks from the criminal prohibition, a carve-out that may be viewed as an "indirect" authorization of sports betting. Is such a gambit really worth the time, knowing the likely result? Perhaps a more legally sustainable repeal strategy would be to exclude only certain geographic areas (e.g., Atlantic County) from the prohibition. The optics of such a maneuver would certainly be superior to an exemption that specifically and exclusively benefits only two classes -- casinos and racetracks. Perhaps that is elevating form over substance. But without a more reasoned approach to the "repeal" issue (and one that remains faithful to the Third Circuit opinion), we may be a long way from placing that Super Bowl bet in New Jersey.

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Sunday, September 14, 2014
 
Dark Days in the NFL

Mug shot of Minnesota Vikings' Adrian Peterson, taken after he turned himself in to the Montgomery County Jail early Saturday.The Adrian Peterson situation, aside from coming at the worst possible moment for the NFL, raises two difficult ethical questions.

In the Sports Law context, the question is what is the right thing for the NFL and the team to do when one of its players commits a despicable act off the field. As the NFL belatedly learned in the Ray Rice affair, a wrong answer will be a public relations nightmare. Rice is certainly not the first professional athlete to be guilty of spousal abuse, though no one else ever left such a visual record. And if anything is considered an equal or greater wrong than beating your wife, it is child abuse. The facts are still out on whether Peterson is guilty of the charges leveled against him. Obviously, there is no tape. Still, it is worth the inquiry.

The answer to the ethical question, however, should not depend on the existence of a videotape or even a media or public outcry. The answer should be a function of whether the team and the league believe the player’s offense reflects such a failure of character as to be inconsistent with how each organization sees itself and its mission. It is worth discussing whether the fact that the perpetrator is a professional athlete as opposed to an associate attorney or corporate CEO should make a difference. Certainly, when an employee is the public face of an organization, termination is an appropriate response to an immoral or heinous act. The NFL’s current problems stem from its flipping from too weak a response to feigned outrage over information it had all along. Doing the right thing misses the point when it is done the wrong way.

Must the offending act also be illegal? Suppose the player cheats on his dying spouse, squanders the nest egg of his elderly parents, or refuses to donate perfectly matching bone marrow to his brother. Should the team cut its ties with such a lowlife? Any employer should have the right not to be associated with individuals it deems morally bankrupt, so long as such decisions do not depend largely on how good the player is on the field.

Adrian Peterson, of course, is not just any football player. He is one of the real superstars of the game. And he is the face of the Minnesota Vikings.

His case also raises an ethical quandary outside the sports context. When does society have the right to interfere in the parent child relationship? Parents across cultural and geographical divides have had different concepts of what kind of discipline is appropriate. We have all heard tales of kids in days gone by getting “whoopings” by a switch behind the barn. We live in a different time, if there ever really was a time when such beatings were appropriate. When such discipline results in broken bones, or cuts and bruises, or deep emotional scars, parents may have crossed the line of what is acceptable. A Texas jury will decide. So must the NFL and the Vikings.

Saturday, September 13, 2014
 
Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" that cannot form the basis for liability (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury (the case settled, following a jury verdict awarding more than $ 10 million in punitive damages). He never lost his job and suffered no team- or league-imposed penalties. The league explained that it does not get involved with "civil matters," not even civil matters directly affecting the team or reflecting wrongdoing in running the team.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB and the Mets, other than bland insistence that they have policies against harassment and discrimination.

So can we find anything remotely resembling consistent and appropriate responses to possibly improper or unlawful employment practices? Or are there distinctions that actually matter?

One answer is accusations are insufficient, a position I could endorse; but then the non-action by the Knicks and action by the Hawks (especially for the latter, since it is not clear the Hawks could be liable for the comments) both were inappropriate. Worse, the Hawks incident may be the least likely of the three to result in liability under federal anti-discrimination law. A more cynical answer is teams/leagues will jump to act when it comes to players and race, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the issue that audio and video are overtaking our ability to judge evidence and proof. That, in turn, says some troubling things about our ability or willingness to rely on litigation to resolves disputes and determine legal rights and wrongs.