Sports Law Blog

Sports Law Blog

All things legal relating
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Monday, March 19, 2012

Vermont Law School Panel on Emering Issues in Ski, Snowboarding and Resort Law

The Sports Law Institute at Vermont Law School is thrilled to announce our upcoming panel on emerging issues in ski, snowboarding and resort law. Here are the details:

The Sports Law Institute at Vermont Law School presents

A Panel Discussion on Emerging Legal Issues

in Ski, Snowboarding and Resort Law

Thursday, March 29, 2012

12:45 to 2:00 pm

Chase Community Center

We are excited to announce a dynamic panel of leading attorneys in ski, snowboarding and resort law. The event will be open to the public and 1.25 Vermont CLE credit hours will be available. Topics will include:

tort implications of participating in ski and snowboarding;

role of assumption of risk in personal injury litigation involving ski and snowboarding;

new state laws that promote safety, such as requiring skiers and snowboarders under 18 to wear helmets;

the structuring of licensing and related ski and snowboarding contracts;

impact of international law on multi-national ski, snowboarding and resort transactions;

impact of controversial new regulations promulgated by the International Ski Federation;

ways the law can improve underprivileged persons' access to ski and snowboarding; and

how changes to the law might address the expected impact of climate change on the ski, snowboarding and resort industries.

Introduction

Professor Michael McCann will introduce the event and the speakers. He will also comment on the Sports Law Institute's exciting plans for 2012-13.

Panel

Brian Porto (moderator)

Professor Porto is Deputy Director of the Sports Law Institute and an Associate Professor of Law at Vermont Law School. He has been writing about legal issues in sports for more than two decades. Professor Porto's writings focus on the effects of Title IX on college sports and on the relationship between those sports and higher education. His most recent book, The Supreme Court and the NCAA, examines the antitrust and due process consequences for college football and basketball of the United States Supreme Court's decisions in NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), respectively. Professor Porto holds a JD from Indiana University-Bloomington and a PhD. in political science from Miami University (Ohio). Before coming to VLS, he taught political science at Macalester College in St. Paul, Minnesota and practiced law in Vermont.

Jaimesen Heins

Mr. Heins is Associate General Counsel at Burton Snowboards in Burlington, VT. He manages transactional legal matters for Burton and its global family of surf, skate and snow brands. This including drafting, review and negotiation of professional athlete, sponsorship, manufacturing, licensing and related commercial agreements. In addition, Mr. Heins provides advice and strategic counsel to Burton with respect to mergers and acquisitions, intellectual property, employment, real estate and litigation matters.. Previously, Mr. Heins served as a Project Manager for Toll Brothers, Inc., a publicly traded real estate development company. Mr. Heins also held associate positions with Hughes Hubbard & Reed, LLP in New York and Eggleston & Cramer, Ltd. in Burlington, Vermont. Mr. Heins holds degrees from the University of Pennsylvania Law School and Tulane University.

Andrew Maass

Mr. Maass is an attorney at Ryan Smith & Carbine in Rutland, VT. A past officer and President of the Board of Directors of the Association of Ski Defense Attorneys, Mr. Maass is active in ski defense and professional liability litigation and has successfully tried numerous cases to jury verdict. He has presented before the National Ski Areas Association, the Vermont Ski Areas Association and the Ski Areas of New York Association and has been involved in ski industry litigation throughout the East Coast. A substantial portion of Mr. Maass’s practice also consists of counseling employers on employment issues. Mr. Maass is an approved trainer for equal employment/discrimination matters by the Civil Rights Division of the Vermont Attorney General’s Office. He holds degrees from New England School of Law and St. Lawrence University.

Parker Riehle (VLS' 93)

Mr. Riehle is President of the Vermont Ski Areas Association. He oversees all aspects of the Association, which represents Vermont’s alpine and Nordic ski areas in government affairs, marketing and public relations. Before he joined the Association, Riehle was in private law practice and served as special assistant to then U.S. Rep. Peter Smith in Washington, D.C. He holds degrees from Vermont Law School and Hamilton College.

-- Posted by Michael McCann @ 3/19/2012 07:00:00 AM -- Comments (0) -- Post a Comment

Sunday, March 18, 2012

An empirical look at sports and politics

Brad Smith, a UNC undergrad, has analyzed President Obama's NCAA bracket, finding a statistically significant relationship between the number of wins Obama picks for a team and that team's location in a potential swing state in this fall's election, a relationship beyond the national average. (H/T: Kim Krawiec of UNC Law). Kim adds a nice caveat: not every pick of a school in a swing state will appeal to swing-state voters in the same way. For example, picking Duke will not appeal to North Carolina voters in the same way as picking UNC or NC State.

-- Posted by Howard Wasserman @ 3/18/2012 08:00:00 AM -- Comments (0) -- Post a Comment

Saturday, March 17, 2012

Interview with Bryan Stroh, Vice President and General Counsel of the Pittsburgh Pirates

The Pittsburgh Pirates recently hired Bryan Stroh as Vice President and General Counsel. It's been a productive month for him. He played key roles in the team winning its arbitration case against first baseman Garrett Jones and re-signing All Star center fielder Andrew McCutchen to a six-year contract worth $51.5 million with a club option for 2018 worth (the deal buys out at least two years of when the 25-year-old McCutchen could have been a free agent).

Bryan is a good friend and former law school classmate of mine (University of Virginia School of Law, 2002). Prior to joining the Pirates, he was a Chicago-based partner of Katten Muchin Rosenman, where his work included representing the Chicago White Sox. He's also a 1998 graduate of Princeton University, where he was a top pitcher for the baseball team. Bryan was kind enough to answer a few questions for Sports Law Blog.

SLB: What types of experiences at Katten best prepared you for this job?

STROH: At Katten, I was fortunate enough to work on a number of matters for the Chicago White Sox. When I was a mid-level associate, I worked with a partner representing a White Sox player in a dispute with a former agent. That case really opened my eyes to the various ways that the legal world overlaps with baseball. Then a few years later I worked with the same partner on an internal investigation for the White Sox. It was a fascinating case and I was lucky enough to be exposed to a number of people in the White Sox front office. After we got a good resolution on that case, the partner basically kicked me in the butt and told me that I owed it to myself to try to figure out if there was a way for me to that sort of work more often, since he could see how much I enjoyed doing the work.

Beyond the sports cases that I worked on, as a litigator I did a ton of negotiating in a variety of different contexts. That has been a huge benefit for me in my new role because even though the subject matter is a bit different, there are very few situation and personalities that I have not already come across in one form or another.

SLB: What are typical situations you might have to handle in your job? Are you involved with the disciplining of players or visa issues?

STROH: I have only been here about three months, so I am not sure I can really describe what is typical. In the non-baseball world, the offseason involves a great deal of contract drafting and negotiation for things like sponsorship agreements, suite licenses, and media contracts. On the baseball side, my primary focus has been contract negotiation for one multi-year contract in particular, but also for arbitration eligible players. I also spent a great deal of time preparing for and giving the club’s presentation at a salary arbitration hearing. I have also had a variety of issues pop up related to the club’s activities in the Dominican Republic and other Latin American countries. One of the things that really attracted me to this job is the variety of work that I get to do, which includes a good deal of overlap with the club's baseball operations. Every club structures things differently, but I am fortunate that Neil Huntington and Frank Coonelly give me opportunities to be involved in more than just those traditionally associated with a general counsel position.

SLB: The new CBA, which limits the amount of money teams can spend on drafted players, has been described as unfair to small market teams like the Pirates, which have used spending on the draft to rebuild in part because free agents are so expensive/over-priced. What are your views on the impact of the CBA on the Pirates?

STROH: I understand that perspective and selfishly think it is too bad that we cannot continue to exploit what we believed to be a competitive advantage. But, the reality is that, even though the Pirates spent more money in the draft than most teams in the past 3-4 years, that was not going to last forever. The bigger market clubs could have changed that at any time, and likely would have once one decided that the money spent in the draft was efficient and money well spent. If that ever happened, the larger market clubs could have spent significantly greater dollars than even the level the Pirates had been spending, which could have been a huge competitive disadvantage. Thus, the structure of the new CBA prevents that from happening, even if it takes away the temporary advantage produced by the additional dollars spent by the Pirates in recent drafts.

SLB: Baseball has adopted tougher penalties and testing protocols for steroids and performance-enhancers. Do you think Baseball will be able to keep up with what are clear market incentives for players and disreputable labs to identify new drugs that evade detection?

STROH: One thing that might surprise some fans is that, for the most part, I think the players, not just the clubs, really want to clean up the game. You saw that recently with some of the reaction to the Braun case. The players are aware that there is this perception out there that any accomplishments are somehow tainted by the steroid possibility. Thus, most of them seem to realize that the perception, even if it is not based on fact, will not go away until there is a testing program that engenders the public’s confidence and trust. Most players and agents that I have spoken with are very clear about this point, and that is why I believe that the last round of bargaining produced a strong set of penalties and testing protocols that both sides believe in.

SLB: What advice do you have for law students or new attorneys hoping to break into sports law?

STROH: First, they need to ask themselves whether they really have a strong passion for a sport or whether they just think that the idea of working in sports would be fun or cool.

Second, and only if they have the passion for a particular sport, they need to think about how they will separate themselves from the pack in terms of offering value to whoever might hire them. Unfortunately, it just is not enough to be somebody who likes sports, went to a good school and got good grades. There are thousands of people who want to work in sports, and after Theo Epstein and others helped to break the mold, the supply of talented people who want to work in sports has gone through the roof in the last 10 years. One of the clubs that I represented in private practice used to show me the resumes of people that did not even make the cut to be “finalists” for a few positions. Those resumes were incredibly impressive and these people did not even make the final cut! Whereas it used to be people wanted to work in sports but were semi-realistic about their chances, now anybody who goes to college wants to get into the sports world. While I think that is healthy for sports in general since it means that more and more qualified people are considering working in sports, the reality is that by itself just isn’t enough to get a job. You have to try to think about how you can provide some sort of unique skill or background that will help you stand out. And even then, if you are able to do all of those things, you have to get a little lucky and be in the right place at the right time. If you do your homework on how most people from the outside got their start in baseball, it becomes pretty obvious that timing is everything.

-- Posted by Michael McCann @ 3/17/2012 01:30:00 PM -- Comments (0) -- Post a Comment

Tuesday, March 13, 2012

15th Annual University of Miami Entertainment & Sports Law Symposium

The sports law conference season is in full swing. The University of Miami School of Law Entertainment and Sports Law Society has organized the 15th Annual

SYMPOSIUM SCHEDULE

BREAKFAST, REGISTRATION, AND OPENING REMARKS: 8:00AM – 8:40AM
Breakfast, registration, and opening remarks will occur before the start of the symposium.

PANEL I: 8:40AM – 9:40AM
Protecting Your Client's Image: The Use of Intellectual Property Law to Represent a Client's Business and Personal Interests

PANEL II: 9:50AM – 10:50AM
Leveraging Social Media: Best Social Media Practices for the Entertainment and Sports Industries

PANELS III: 11:00AM – 12:00PM
The Year of Copyright Recapture: Analyzing the Music Industry's Response to a Change of Control in Ownership Rights

PANELS IV: 11:00AM – 12:00PM
Alternative Dispute Resolution in Professional and International Sports: The Role of Mediation, Arbitration, and Negotiation in Labor Issues

LUNCH AND KEYNOTE PANEL: 12:00PM – 2:00PM
The Stadium as a Center for Entertainment and Sports: An Overview of the Business and Legal Issues That Arise in Event Planning at the Modern Stadium

PANEL V: 2:00PM – 3:00PM
From the Television Screen to the Computer Screen: Distributing Entertainment and Sports Content in Today's Digital Age

TOUR OF THE BALLPARK: 3:00PM – 3:45PM

GAME VERSUS THE HOUSTON ASTROS: 7:10PM

The Following Speakers Are Confirmed

Jeff Gewirtz: Executive Vice President & Chief Legal Officer, Brooklyn Sports & Entertainment – Brooklyn, NY
Michael Yormark: President and Chief Executive Officer, Florida Panthers – South Florida
Derek Jackson: Vice President and General Counsel, Miami Marlins
Kathleen Carignan: Executive Director, LegalArt
Brad Rose: Partner, Pryor Cashman LLP
Steven Olenick: Associate, Davis & Gilbert LLP
Jaime Vining: Partner, Friedland Vining P.A.
Darren Heitner: Associate, Wolfe Law Miami, P.A.
Alan Fertel: Partner, Boyd & Jenerette
David Canter: President and Chief Executive Officer, DEC Management
Billy Corben: Director, Producer, and Founder of rakontur
Andrew Fine: Managing Director of Sports Media Consulting, RLR Associates
David Bercuson: Law Offices of David Bercuson, P.A.
Leslie Zigel: Partner, ZIGLAW
Stephen Carlisle: Stephen M. Carlisle, P.A.
Serona Elton: Assistant Professor of Music Business & Entertainment Industries, University of Miami
Dennis Curran: Senior Vice President & General Counsel, National Football League
Stephen Starks: Legal Affairs Director, United States Anti-Doping Agency
Scott Shapiro: Praver Shapiro Sports Management, Founder
Mike Santos: Assistant General Manager, Florida Panthers
Tony Agnone: Owner, Eastern Athletic Services
Jan Paulsson: Professor, University of Miami School of Law
Yaphett Powell: Director, Business & Legal Affairs, International & Emerging TV Networks, FOX – Los Angeles
David Schwartz: Vice President & Counsel, The Walt Disney Company
Karyn Smith-Forge: Vice President of Programming, FOX Television Studios
Fred Goldring: Founder, Goldring Strategies
Jose Sariego: Senior Vice President of Business & Legal Affairs, HBO Latin America Group

-- Posted by Ryan M. Rodenberg @ 3/13/2012 07:00:00 AM -- Comments (0) -- Post a Comment

Sunday, March 11, 2012

The Irony That is March Madness

Now that “March Madness” is underway, two important articles this weekend highlight the irony that is big time college athletics in 2012. The first article, “Everybody Wants a Piece of Nerlens Noel” written by Pete Thamel in The New York Times, highlights the recruiting efforts by colleges for the services of a standout high school basketball player. This piece illustrates, in remarkable clarity, the fact that schools view athletes as commodities rather than potential student-athletes.

As a result, can it really be any surprise that advocates again discuss forming a union on behalf of these student-athletes? An article on Salon.com by Josh Eidelson entitled “Madness of March: NCAA Gets Paid, Players Don’t,” raises the concept of student-athletes unionizing. Rather than just arguing it’s a concept worth debating, Eidelson actually pushes the discussion by addressing the legal framework that so far has stifled this effort and offers some solutions.

Make no mistake, college athletics is an extremely lucrative business. Chasing revenue places pressure on schools to recruit elite student-athletes. Unfortunately, those same student-athletes have virtually no formal say in either their governing body (NCAA) or as an a collective body (union). Change is necessary.

-- Posted by Warren K. Zola @ 3/11/2012 06:00:00 PM -- Comments (2) -- Post a Comment

If Only Gregg Williams Were a Boxing Promoter

Why the Brewing Scandal Involving the St. Louis Rams’ Defensive Coordinator Would be a Non-Starter in Professional Boxing

Just a week or two ago, it was professional boxing’s turn again to come under international scrutiny following Dereck (Del Boy) Chisora’s antics both before and after his WBC Heavyweight Title bout with Vitali Klitschko. This week, however, it was the NFL taking the heat following the revelation that Gregg Williams, the new defensive coordinator for the St. Louis Rams, instituted a “bounty program” while in the employ of the Washington Redskins, the New Orleans Saints, and possibly others which involved financially rewarding defensive players for particularly damaging defensive plays.

While the fall-out from the Williams scandal will inevitably lead to certain reforms being instituted within the NFL, such rewards are routine in professional boxing. Indeed, it is not unusual to see a promotional agreement which provides for additional compensation in the event that the boxer scores a knockout in a given bout. In two sports with rich histories of brutality, why is one under a potentially policy changing assault while the other continues on unscathed with its own bounty programs?

Read on at this link.

-- Posted by Paul Stuart Haberman @ 3/11/2012 12:01:00 AM -- Comments (0) -- Post a Comment

Friday, March 09, 2012

The A's-Giants Dispute Over San Jose Continues

The on-going dispute between the Oakland Athletics and San Francisco Giants regarding the A's proposed relocation to San Jose (territory claimed by the Giants) is once again heating up this week (click here for an earlier 2009 post on the dispute). After patiently waiting three years for an MLB panel to resolve the matter, A's owner Lew Wolff went public Wednesday questioning the Giants' supposed claim to San Jose. The Giants franchise alleges that it controls the San Jose territory under a 1990 agreement in which the A's voluntarily relinquished their rights to Santa Clara County (which includes San Jose) so that the Giants could themselves relocate to the area.

However, Wolff issued a statement on Wednesday referencing the minutes of the relevant 1990 owners meeting, which he says clearly provide that the Giants' claim to Santa Clara County was contingent upon the team actually moving to the area. Because the Giants never left San Francisco, Wolff asserts that the Giants have no rightful claim to San Jose. The Giants disagree with Wolff's interpretation, issuing a statement arguing that the franchise's claim to Santa Clara County has been ratified in the MLB Constitution on multiple occasions since 1990. Indeed, if the Giants' claim to San Jose was as flimsy as the A's now allege, then MLB would likely have settled this dispute a couple years ago.

Frustrated by the delay, San Jose Councilman Sam Liccardo suggested on Wednesday that a reconsideration of baseball's antitrust exemption might be in order if the A's are unable to move to the city. The suggestion that the government should reevaluate baseball's antitrust exemption in light of the A's-Giants dispute is not unexpected, as the exemption has historically helped shield MLB's territorial restrictions from antitrust scrutiny. As I detailed in a recent paper, Congress has frequently threatened to revoke baseball's exemption in order to motivate MLB to make a variety of concessions. Liccardo's threat alone is unlikely to force MLB to allow the A's to move to San Jose, but that could change if a sufficient number of Congressional representatives become interested in the A's plight.

-- Posted by Nathaniel Grow @ 3/09/2012 08:00:00 AM -- Comments (0) -- Post a Comment

Wednesday, March 07, 2012

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

A reminder for those in the NYC area: The Cardozo Journal of International and Comparative Law is hosting a symposium tomorrow from 8:30 am to 1:30 pm on the law and business of the London 2012 Olympic Games. I'm honored to be one of the speakers. Other speakers include Harvey Schiller (former CEO of Turner Sports and later CEO and Chairman of YankeesNets) and attorneys from NBC Sports and Latham & Watkins. It should be a great event - hope to see you there.

-- Posted by Michael McCann @ 3/07/2012 08:35:00 PM -- Comments (0) -- Post a Comment

Monday, March 05, 2012

ESPN Radio/True Hoop on Rationality, Race Sensitivity and Legality of NBA Age Limit

During last week's MIT Sloan Sports Analytics Conference -- which was truly amazing -- ESPN's Henry Abbott interviewed for me for 21 minutes on the NBA age limit (more technically called the league's "eligibility restriction"). The rule requires that players be 19-years-old plus one year removed from high school.

We talk about why the rule exists, how it relates to the commercialization of college basketball, whether it, along with the NFL and WNBA's age limits, could be deemed racist in light of the absence of such restrictions in other sports and forms of entertainment, and its vulnerability to legal challenge. I also accepted Henry's challenge to impersonate Tom Cruise from the movies The Firm and Jerry Maguire.

Hope you can listen to the interview. For a related piece, be sure to check out SI's Zach Lowe's excellent analysis and summary of the age limit issue.

Update: Henry also interviews Sonny Vaccaro and U.S. Secretary of Education Arne Duncan on this topic and related issues.

-- Posted by Michael McCann @ 3/05/2012 11:25:00 AM -- Comments (0) -- Post a Comment

Sunday, March 04, 2012

New Sports Illustrated column: Legal Fallout of Saints Bounty Scandal

Is it a crime or tort to pay someone to injure another person? Sure. But how about if it the crime/tort happens on a football field? Check out my column for Sports Illustrated | SI.com on the Saints bounty system.

Here's an excerpt:

* * *

The bounty system implicates at least two types of criminal charges: battery and conspiracy. Battery, which under Louisiana law is punishable by up to six months in jail, refers to the intentional use of force upon another person without that person's consent. Here, a Saints player who intentionally tried to injure another team's player could have battered that player. In response, a Saints player might argue that offensive players assume the risk of serious injury on every play, especially since defensive players are rewarded for stopping the advancement of the ball. That rationale would be deeply flawed, however, because while offensive players assume the risk of injury on a tackle, they do not assume the tackle is intended to injure them. The Saints' "pay for injury" model is clearly outside the boundaries of the game and an assumption of risk defense holds little weight. ...

***

While the above provides a road map to criminal prosecutions of Saints players, coaches and front office personnel, prosecutors seldom seek charges for incidents that occur on the field. This is true even for on-field incidents that would clearly be crimes if they occurred on a public street. Prosecutors and judges generally defer to leagues to enforce their own rules and assign their own penalties. While this deference makes sense on some levels, one may wonder whether an NFL penalty provides adequate deterrence for preventing future bounty systems: even the most serious NFL fine -- banishment from the game -- could never come close to the threat of a judge sentencing someone to jail or prison. Besides, in the rare instances when criminal charges are brought by authorities, they are often brought outside of the U.S. (such as when Vancouver authorities charged Boston Bruins defenseman Marty McSorley for his vicious slash of Vancouver Canucks forward Donald Brashear).

* * *

To read the rest, click here.

-- Posted by Michael McCann @ 3/04/2012 12:52:00 PM -- Comments (3) -- Post a Comment

Tuesday, February 28, 2012

Harlem Ambasadors sue Harlem Wizards over LaMarvon Jackson

Back in 2006, we blogged about the Harlem Ambassadors taking on the Harlem Globetrotters in an FTC complaint over the Globetrotters'"use of arenas" clauses that allegedly prevented the Ambassadors from playing in certain arenas.

Six years later, the Ambassadors are back in sports legal news. This time they have filed a lawsuit against the Harlem Wizards over the Wizards allegedly trying to sign LaMarvon Jackson, who the Ambassadors say was under contract to play for them. The 6'6 Jackson didn't exactly have a big impact as a college basketball player -- he averaged just 1 point per game over two seasons at the University of Arkansas Little Rock from 2007 to 2009 -- but has apparently became a coveted professional comedy basketball player. Or at least one worthy of filing a lawsuit.

Here is an excerpt from the Ambassadors' press release on the lawsuit:

HARLEM AMBASSADORS FILE SUIT AGAINST HARLEM WIZARDS
Complaint against comedy basketball competitor is no laughing matter

* * *

The complaint, filed in DuPage County, Illinois Circuit Court, alleges that the Harlem Wizards tortiously interfered with a contractual relationship between the Harlem Ambassadors and a basketball player, LaMarvon Jackson.

“Just like a referee decides who’s playing fair and who’s breaking the rules on the basketball court, we need the court to make a similar determination,” said Dale Moss, President of the Harlem Ambassadors. He added that “our goal is to protect the sanctity of our performer agreements.” The Ambassadors are seeking more than $70,000 in general contract and punitive damages.

Both Harlem Ambassadors, Inc. and Harlem Wizards Entertainment Basketball, Inc. are independent professional basketball organizations and neither is affiliated with a league. “If this were a league matter, the issue is so clear and so simple that a wise commissioner would resolve this in minutes,” observed Moss.

An aside: for law students looking for paper/journal topics, exhibition/comedy basketball could have some fertile legal ground to explore.

UPDATE: Dale Moss, President of the Harlem Ambassadors, emails me with a "photo of Jackson in Ambassadors uniform, which we will prove is the rightful uniform." Here it is:

-- Posted by Michael McCann @ 2/28/2012 03:48:00 PM -- Comments (1) -- Post a Comment

Monday, February 27, 2012

Harvard law School Sports Law Symposium on March 23

I'm looking forward to joining many others for what should be a fantastic symposium at Harvard Law School on Friday, March 23. Here are the details:

Spring 2012 Sports Law Symposium - Friday, March 23, 2012

Professional Sports in America:

Labor Peace BUT...

Harvard Law School

Friday, March 23, 2012

9:30am-6:00pm

OVERVIEW

Harvard Law School’s Committee on Sports and Entertainment Law will host the 2012 Sports Law Symposium on Friday, March 23, 2012. CSEL’s 2012 Sports Law Symposium will focus on the legal and business issues surrounding the recent collective bargaining disputes in the three major leagues and the issues that must still be worked out. The overarching theme of the symposium will be:“Professional Sports in America: Labor Peace BUT...”

The event is free and open to the public.

SYMPOSIUM SCHEDULE

9:00 – 9:30 am	Continental Breakfast	Ames Courtroom
9:30 – 10:45 am	NBA Collective Bargaining Panel	Ames Courtroom
11:00 am – 12:15 pm	NFL Collective Bargaining Panel	Ames Courtroom
12:30 – 1:45 pm	The Concussion Crisis in Professional Sports and Presentation of the Professor Emeritus Paul Weiler Scholarships and Writing Prize	Ames Courtroom
2:00 – 3:15 pm	MLB Collective Bargaining Panel	Ames Courtroom
3:30 – 4:45 pm	Performance Enhancing Drugs Panel	Ames Courtroom
5:00 – 6:00 pm	Keynote Speech	Ames Courtroom
6:15 – 8:00 pm	Symposium Reception	Austin Rotunda

PANEL AND PANELISTS OVERVIEW*

*Panel Compositions subject to change

KEYNOTE SPEAKER – TBA

PANEL #1 - NBA COLLECTIVE BARGAINING PANEL

This year saw the NBA season cut short by failure to reach agreement on a new Collective Bargaining Agreement between the NBAPA and the League. While an agreement was reached, labor peace is by no means assured. With negotiations recently completed in the NFL and upcoming in the MLB, collective bargaining remains an important topic. With representatives from the NBAPA, the NBA, and third parties, this panel will explore the major bargaining difficulties each party faced, how agreement was finally reached, and what might lie ahead for labor relations in the three major leagues.

TIME: 9:30-10:45am (Ames Courtroom)
PANELISTS:

Moderator: Professor Michael McCann (Professor of Law Vermont Law School, SI.com, NBA TV Legal Analyst)
Mike Zarren, Esq. (Boston Celtics Assistant General Manager and General Counsel)
Yared Alula, Esq. (NBAPA Counsel)
Jeff Mishkin, Esq. (Skadden Arps, former NBA EVP and Chief Legal Officer)
Darren Heitner, Esq. (Wolfe Law Miami, P.A./CEO Dynasty Dealings, LLC)

PANEL #2 - NFL COLLECTIVE BARGAINING PANEL

Over the course of this past summer, thirty-one NFL team owners and the NFL Players’ Association (NFLPA) agreed to a new 10 year Collective Bargaining Agreement. This panel endeavors to elucidate the issues regarding rookie and retiree benefits that the new agreement has not sufficiently addressed. In the case of the former, the new wage scale forecloses any possibility of a number 1 draft pick reaching a deal that remotely resembles what Sam Bradford (the number 1 draft pick for the 2010-2011 season) had been able to secure: a six-year, $78 million deal. In the case of the latter, the settlement of the Carl Eller suit filed by retired players following the adoption of the new agreement has led many retired players to believe that they have been left out in the cold.

A number of retired players along with draft eligible prospects not covered by the previous CBA, led by former Hall of Famer Carl Eller, had filed a class action antitrust suit against the NFL (Eller v. NFL) on the following grounds:

· The NFLPA intentionally bargained for terms that contravened the rights of retired players against the NFL; and

· The NFLPA failed in their “fiduciary duty” to retired players by bargaining for current players’ rights at their expense.

Given that the District Court consolidated the retirees’ class action lawsuit with Brady v NFL, the players’ class action antitrust lawsuit against the NFL following the decertification of the Players’ Association, and the suits were dismissed once the NFL and the NFLPA reached an accord, this issue remains unsettled at this time. Not only will this panel will discuss the aforementioned open items, this discussion will also look back at the issues that led to the newly adopted CBA.

TIME: 11:00am-12:15pm (Ames Courtroom)
PANELISTS:

Moderator: Professor Glenn Wong (UMass Isenberg School of Management)
Professor Matt Mitten (Professor of Law Marquette University Law School, Director National Sports Law Institute)
Professor Patrick Rishe (Forbes.com Contributor, Associate Professor Webster University)
Jeff Pash, Esq. (EVP and General Counsel NFL)
Pete Kendall (NFLPA permanent player representative)
Joe Nahra, Esq. (CAA Bussiness & Legal Affairs Attorney, NFLPA Staff Counsel)

PANEL # 3 - THE CONCUSSION CRISIS IN PROFESSIONAL SPORTS

The mission of the Sports Legacy Institute is to advance the study, treatment and prevention of the effects of brain trauma in athletes and other at-risk groups. SLI was founded on June 14, 2007 by Chris Nowinski and Dr. Robert Cantu in reaction to new medical research indicating brain trauma in sports had become a public health crisis. SLI has formalized groundbreaking neuropathological research by partnering with Boston University School of Medicine to form the Center for the Study of Traumatic Encephalopathy. SLI Co-Founder and Medical Advisory Board chair Dr. Robert Cantu and other panelists will discuss SLI’s research and address the concussion crisis as it relates to the NHL. Professor Carfagna will also present Professor Emeritus Paul Weiler Scholarships and Professor Emeritus Paul Weiler Writing Prize at this time.

TIME: 12:30-1:45pm (Ames Courtroom)
PANELISTS:

Moderator: Professor Peter Carfagna (Lecturer on Law Harvard Law School, Chairman/CEO Magis LLC)
Tim Fleiszer (Representative Sports Legacy Institute, Partner at Gil Sports Management)
Mark Moore (Author, Saving the Game)
Dr. Robert Cantu, MD. (Clinical Professor of Neurosurgery at BUSM, Co-Director of the Center for the Study of Traumatic Encephalopathy, Co-founder and Medical Advisory Board Chairman Sports Legacy Institute)
Dr. Judith Edersheim, Esq. MD (Assistant Clinical Professor of Psychiatry Harvard Medical School, Co-Director of the Center for Law, Brain and Behavior)

PANEL #4 - MLB COLLECTIVE BARGAINING PANEL

While the NFL and NBA collective bargaining disputes led to litigation and cancelled games, on November 22, 2011 Major League Baseball and the Major League Baseball Players Association announced that they had reached a new collective bargaining agreement without any missed games or practice time. The agreement allows play to continue without interruption through the 2016 season, and the end of the agreement will mark 21 years without a strike or lockout. This panel will explore the reasons MLB has been able to maintain labor peace for such an extended period of time and discuss issues that may threaten this peace in the future.

TIME: 2:00-3:15pm (Ames Courtroom)
PANELISTS:

Moderator: Professor Lisa Masteralexis (Department Head, Mrk H. McCormack Department of Sport Management at UMass Amherst)
Paul Mifsud, Esq. (Senior Counsel MLB)
Damon Jones, Esq. (Washington Nationals General Counsel)
Mary Braza, Esq. (Foley Lardner)
Matt Nussbaum, Esq. (MLBPA Assistant General Counsel)

PANEL #5 - Performance Enhancing Drugs

Performance Enhancing Drugs have been getting a lot of attention lately throughout professional sports. They caused arguably the biggest scandal in Major League Baseball history and the issue still rears its ugly head every time Hall of Fame ballots are cast. That problem will only grow in significance as the all-time homerun leader and several other top players of the '90s and 2000s approach eligibility. Baseball isn't the only sport that's been rocked by steroids recently, and in every sport dealing with them a similar set of legal and regulatory issues arises: how should the sport regulate their use ex ante? How should the sport's authorities punish those who break the rules? What is the appropriate role of the government, if any? What role should the courts take in hearing suits brought by aggrieved players claiming false accusations or faulty tests? Our panel will explore these issues from the perspectives of several different professional sports and several different positions within the sports world.

TIME: 3:30-4:45pm (Ames Courtroom)
PANELISTS:

Moderator: Professor Warren Zola (Assistant Dean for Graduate Programs, Carroll School of Management at Boston College)
Bob Arum, Esq. (Founder and CEO Top Rank Promoting)
Adolpho Birch, Esq. (Sr. Vice President of Law & Labor Policy NFL)
George Hanna (Senior Director of Investigations MLB)
Dan Mullin (Vice President and Director MLB Department of Investigations)
David Cornwell, Esq. (DNK Cornwell)

-- Posted by Michael McCann @ 2/27/2012 09:08:00 PM -- Comments (1) -- Post a Comment

Friday, February 24, 2012

Ryan Braun and Proceduralism

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

-- Posted by Howard Wasserman @ 2/24/2012 11:40:00 PM -- Comments (1) -- Post a Comment

Thursday, February 23, 2012

I’m Begging You for Mercy

As the hit song by Duffy goes:

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

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

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

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

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

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

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

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

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

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

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

-- Posted by Warren K. Zola @ 2/23/2012 04:00:00 PM -- Comments (0) -- Post a Comment

Why is it so hard for NCAA athletes to transfer?

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

-- Posted by Michael McCann @ 2/23/2012 12:26:00 PM -- Comments (0) -- Post a Comment

Tuesday, February 21, 2012

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

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

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

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

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

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

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

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

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

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-- Posted by Tim Epstein @ 2/21/2012 07:30:00 PM -- Comments (0) -- Post a Comment

Monday, February 20, 2012

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

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

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

8:30 AM - 9:00 AM - Breakfast

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

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

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

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

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

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

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

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

12:15 PM - 1:15 PM - Lunch

-- Posted by Michael McCann @ 2/20/2012 08:00:00 PM -- Comments (0) -- Post a Comment