Sports Law Blog
All things legal relating
to the sports world...
Wednesday, October 07, 2015
Thabo Sefolosha Trial
Sports Illustrated legal analysis on what to expect.
Tuesday, October 06, 2015
Impact of Insider Trading allegations on legality of Daily Fantasy Sports
new article for Sports Illustrated on how allegations of insider trading may impact the legal of daily fantasy sports. Also be sure to see the excellent commentary by our colleague Daniel Wallach in today's New York Times.
Monday, October 05, 2015
New Law Review Article: The Curiously Confounding Curt Flood Act
As most sports law enthusiasts are well aware, although Major League Baseball has traditionally benefited from a judicially created antitrust exemption, it does not enjoy blanket antitrust immunity across all of its operations. Most notably, in 1998 Congress passed the Curt Flood Act, a law partially repealing baseball's exemption in order to allow major league players to file antitrust lawsuits against MLB.
Throughout Congress's deliberation of the Flood Act, legislators made it abundantly clear that the legislation was intended to remain neutral regarding the continued viability and scope of the rest of baseball's antitrust exemption. Nevertheless, a number of courts and academic commentators have read the law quite differently, concluding that it either explicitly or implicitly reflects Congressional acquiescence in the exemption. This was the position recently adopted by both the district and appellate courts in the City of San Jose v. Office of the Commissioner of Baseball litigation, for instance, the lawsuit challenging MLB's refusal to approve the relocation of the Oakland A's to San Jose. The implication of these analyses is that baseball's antitrust exemption has now effectively been codified by Congress, meaning that the courts no longer have the power to repeal the exemption, should they be so inclined.
I challenge this interpretation of the Flood Act in a new law review article, "The Curiously Confounding Curt Flood Act," forthcoming next year in the Tulane Law Review. In particular, my article advances a novel textualist interpretation of the Flood Act, contending that when properly read, the law neither expressly nor implicitly approves of the bulk of baseball's antitrust exemption. As a result, I conclude that the judiciary retains the power to reconsider baseball’s antitrust status, should a future court wish to do so.
The piece can be downloaded here. I'd greatly appreciate any comments or feedback.
Peter King to speak at the University of New Hampshire Deflategate course
You are invited to attend a lecture by MMQB Editor-in-Chief and Sports Illustrated senior NFL writer Peter King at the University of New Hampshire this Wednesday, October 7, from 5:10 to 8 pm in McConnell Hall, Room 240.
Peter, along with MMQB editor Matt Gagne, will speak to my Deflategate course. They will discuss the Deflategate controversy and how the controversy will impact the legacies of Tom Brady and Roger Goodell. Part of the discussion will include an experiment of sorts with footballs and air pressure. They will also address debates that have arisen in the media and on social media concerning media coverage of the controversy. Peter will field questions from the audience. He will also feature this lecture in a forthcoming MMQB column.
Seating is limited, so please email me if you would like to attend. My email is michael.mccann[at]law.unh.edu. Driving directions to UNH can be found here.
Friday, October 02, 2015
Regulating Professional Sports Leagues: A Debate
Earlier this year, the Washington & Lee Law Review published my article "Regulating Professional Sports Leagues." The article advances the case for a proposition that is admittedly unlikely to be adopted anytime soon: the creation of a federal sports regulatory agency.
Fellow Sports Law Blog contributors Geoff Rapp and Marc Edelman were kind enough to take the time to write extremely thoughtful responses to my article for the Washington & Lee Law Review's online edition. Both pieces have now been published.
Geoff's piece, "Is it Time to Give Up on Antitrust Law for Pro Sports?," is available here.
Marc's piece, "In Defense of Sports Antitrust Law: A Response to Law Review Articles Calling for the Administrative Regulation of Commercial Sports," is available here.
Both responses are terrific; I hope that everyone will check them out.
Thursday, October 01, 2015
Ed O'Bannon's victory against the NCAA upheld by Ninth Circuit
my take for Sports Illustrated on Ed O'Bannon winning the appeal in the Ninth Circuit, which (in the NCAA's favor) also eliminated the proposed $5,000 per year payment to student-athletes.
Wednesday, September 30, 2015
Funded Opportunity for PhD Student in "Sports Law Analytics"
Starting Fall 2016, I will be be able to sponsor 1-2 new PhD students here at Florida State University (”FSU”). New students studying under my supervision may be funded for at least three years (assuming reasonable progress each year and compliance with university guidelines). Such funding usually includes a teaching appointment (undergraduate sports law course), a research/living stipend, a teaching/research assistant position, and tuition remission.
PhD programs in this field usually take 3-5 years. As such, it is a considerable investment in time and may carry with it significant opportunity costs.
The phrase “sports law analytics” is in quotes for a reason…there is no doctoral degree (that I am aware of) in such a topic. In my mind, “sports law analytics” is the application of parsimonious quantitative methods to legal issues in the sports industry. The actual degree program here at FSU would result in a PhD in “sport management.” However, like I did several years ago when I was a doctoral student at Indiana University, a PhD student studying under my supervision would take coursework that lends itself to being able to take a quantitative look at legal issues in sports. Learning how to conduct archival research would be key too. Graduates would be capable of publishing research in peer reviewed academic journals and law reviews. Papers included in my Google Scholar profile are illustrative.
The ideal candidate would fall under one or both of the following categories: (i) someone who is a graduate of an ABA-approved law school with a documented interest in sports law and some degree of statistical acumen/interest and/or (ii) someone who holds an undergraduate or graduate degree in economics or statistics and can demonstrate an interest in sports law issues.
All candidates must be proficient in either Bluebook or APA. Experience with Stata and/or Excel is desirable.
The foregoing is not meant to be an exhaustive explanation of the PhD program or its component parts. If you are interested, please contact me for further details. I am happy to discuss on the phone or in-person.
Tuesday, September 29, 2015
Second Circuit grants NFL motion for expedited appeal in Tom Brady v. NFL
five key points for Sports Illustrated on what this development means for Brady, the NFL and the New England Patriots.
Monday, September 28, 2015
From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events
On May 2, 2015, American boxing fans tuned into Meerkat and Periscope to watch free live streaming of the Mayweather-Pacquiao championship fight, produced by other sports fans. This phenomena has caused grave concern among some sports entities and their television broadcast partners. If legal, will live streaming eat into the size of their future television audiences?
In a new Columbia Journal of Arts & the Law article (forthcoming Spring of 2016), I discuss the potential impact of live streaming on the commercial sports industry. I also analyze whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events.
Among other things, this article discusses how the NCAA's argument that the First Amendment trumps college athletes' publicity rights in the televised use of their likenesses might actually increase the likelihood that fans in attendance at a sporting event may legally live stream the entire event.
Cheerleader Minimum-Wage Litigation Comes to the NBA
The professional sports industry has been hit with a number of minimum wage lawsuits in recent years. These cases have predominantly focused on the allegedly unlawful pay practices of teams in the NFL and MLB, with various categories of team employees filing suit against their employers for allegedly failing to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act ("FLSA").
For example, in the last two years alone seven different lawsuits have been filed against the NFL and its teams by former cheerleaders who allege that they were paid much less than the federally guaranteed $7.25 minimum wage. Given the high-profile nature of these cheerleader lawsuits, some had speculated that similar litigation could soon be filed against teams in the NBA or NHL as well.
As predicted, just such a case was filed on Thursday, when a former cheerleader for the NBA's Milwaukee Bucks filed a lawsuit alleging that the team failed to pay her in accordance with federal and state minimum wage laws. In Herington v. Milwaukee Bucks, LLC, former Bucks cheerleader Lauren Herington contends that the team required its cheerleaders to spend upwards of 30 hours per week in mandatory practice and workout sessions, in addition to their game-day duties. Because these workout sessions (as well as mandatory salon visits) were unpaid, the complaint asserts that the Bucks not only failed to pay their cheerleaders the minimum wage, but often neglected to pay them overtime as well.
As was the case in the NFL and MLB minimum wage lawsuits, the Bucks are likely to assert in defense that the team is exempt from at least the federal minimum wage and overtime requirements under 29 U.S.C. § 213(a)(3), a statutory provision covering seasonal amusement and recreational establishments. As I explained last year, under this exception any amusement or recreational establishment may pay its employees a sub-minimum wage (without overtime) so long as one of the following two conditions exist: either (A) the establishment does not operate for more than seven months in any calendar year, or (B) the establishment's revenue in its six lowest revenue months in the previous year was no more than 33 1/3% of its revenue received in its six highest revenue months (e.g., the business's receipts from April-September were at least three times greater than its receipts from October-March).
Because the Bucks were eliminated in the first round of the NBA playoffs this past spring, the team's entire 2014-15 pre-season, regular season, and post-season only cumulatively spanned seven months (from October through April). So the team is likely to argue that this qualifies it as a seasonal establishment under Section 213(a)(3)(A), and therefore that the team is not required to pay its cheerleaders in accordance with the FLSA.
As I noted last year, prior courts are split on the question of whether professional sports teams qualify for FLSA immunity under Section 213(a)(3), based on whether judges view a sports franchise's amusement-related operations as lasting only during the team's playing season or as running year round. However, as my co-author Charlotte Alexander and I conclude in our forthcoming U.C. Davis Law Review article "Gaming the System: The Exemption of Professional Sports Teams from the Fair Labor Standards Act," NBA teams can credibly contend that they qualify for the Section 213(a)(3) exemption in at least some portions of their operations given the existing statutory language and accompanying regulations.
Nevertheless, despite this potential defense, it would not be surprising if the Bucks ultimately opt to settle the Herington suit. Indeed, several NFL teams confronting cheerleader lawsuits have elected to settle the claims even though they arguably have an even stronger argument for exempt status under Section 213(a)(3) given the shorter length of their playing season. Most notably, the Oakland Raiders agreed to pay its former cheerleaders $1.25 million to settle their minimum wage claims even though the U.S. Department of Labor had issued an opinion earlier that same year concluding that the team was not subject to the FLSA due to Section 213(a)(3).
At the same time, it also would not be surprising if the Herington suit motivates other NBA cheerleaders to file suit against their teams. In the NFL's case, five additional teams quickly faced their own cheerleader lawsuits within the span of just a few short months after the league's first case was filed. The NBA must now hope that its teams do not face a similar wave of cheerleader minimum-wage litigation.
At a minimum, though, the Herington lawsuit shows that the allegedly unlawful pay practices of professional sports teams will continue to remain a pressing issue for the sports industry for the foreseeable future.
Friday, September 25, 2015
John Molori column in Patriots Football Weekly: "McCann brings common sense to emotional NFL issues"
My sincere thanks to John Molori of Patriots Football Weekly for writing a wonderful column titled "McCann Brings Common Sense to Emotional NFL Issues" in the latest issue (Sept. 20, 2015) of the magazine. I am posting the column with permission:
By John Molori
McCann brings common sense to emotional NFL issues
Sports Illustrated legal analyst and writer Michael McCann is a wanted man. With the NFL awash in labor and legal issues on a seemingly daily basis, the founding Director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law has been beset by media inquiries.
Give McCann’s mobile phone a jingle and you might hear a message saying that he is taking a break from media requests. When you try to leave a message, his mailbox is full. Why, you ask? It’s simple. McCann’s writing, teaching, analysis, and commentary has provided a sane and sublime look at the NFL’s off-field woes, eschewing emotional hyperbole and focusing on common sense and facts.
The 39-year old McCann was ahead of the curve on the seemingly eternal Deflategate issue, stating early on that the NFL did not have enough evidence against Tom Brady to uphold his 4-game suspension. In fact, McCann has devoted an entire class to Deflategate at UNH.
When ESPN’s expansive Spygate revelations came to light on September 8, many reacted with rage and doubt. Was ESPN using the story as payback for the backlash they took for their shoddy Deflategate reporting? Did they coordinate the story’s release to negatively affect the Patriots’ opening night festivities? Typically, McCann embraces no such conspiracy theories.
He relates, “I’m not sure we can say that anything was coordinated. My take is that there was a lot of time spent on that story, a lot of work. I think ESPN just wanted to get it out before anyone else did.”
Conventional wisdom, or should I say, New England conventional wisdom, says that Commissioner Roger Goodell’s harsh punishment against the Patriots and Brady for Deflategate was a “make up call” for his perceived slap on the wrist for Spygate in 2007.
Ever the realist, McCann opines, “I’m not sure it was a makeup call. Certainly, there are other owners who feel some frustration toward the Patriots. It could be plausible that they wanted Goodell to treat the Patriots more harshly this time. It gives a narrative to the story, but there is not a lot of evidence that this happened.”
Evidence. There’s that word again. It is the key reason why the NFL’s reactions based on Ted Wells’ infamous Deflategate report were ultimately flawed. McCann saw through the report, but still has some sympathy for Wells, who was thrust into a difficult situation. “The NFL made a big mistake describing the report as independent,” says McCann, who has covered the Aaron Hernandez murder case, Boston Marathon bombings, and Penn State and Lance Armstrong scandals, among other stories.
“It was not independent. This whole thing really did a disservice to Ted Wells. It does absolutely nothing for Wells in his career. He may have made a lot of money from the league, but I am not sure he would ever want to work for the NFL in the future.”
Putting legalities, rules, and points of law aside, the Deflategate issue hit at the heart of a powerful NFL relationship – the one between Roger Goodell and Patriots owner Robert Kraft. “Robert Kraft really feels like his franchise has been treated poorly and has suffered reputational harm,” says McCann.
“These stories are damaging to a franchise. I do think that Kraft did not fight the Commissioner’s punishment hoping that Brady would get a reduction in his suspension. Goodell’s contract is up in 2019, and most likely, Robert Kraft will still be an active owner then. It would not surprise me if the NFL possibly replaces Goodell at that time.”
McCann’s legal and academic resume is impressive. A graduate of Harvard Law School, the University of Virginia School of Law and Georgetown University, he taught the first-ever sports law analytics class at Yale Law School. He also co-founded the Project on Law & Mind Sciences at Harvard Law School and is the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law.
Beyond the credentials, McCann’s greatest strength is his ability to apply his vast knowledge beyond the ivy-covered walls of academia to the current player conduct crisis in the NFL.
“The crisis is about disciplinary problems.” asserts the Andover, MA native and resident. “From the New Orleans Saints’ bounty issue, to Ray Rice, Adrian Peterson, and Tom Brady. It makes sense for the NFL to reform.”
Part of this reform could include a proposed change in Roger Goodell’s areas of purview. Goodell, himself, says that he would be open to such a change. Says McCann, “The Commissioner is not an attorney and this affects how he views issues of process and fairness. Yes, he is empowered by the owners, but the Players’ Association gave him the power with personal conduct issues.
“In the NBA, if a player is suspended for more than 12 games, he has the right to have his case heard by an independent arbitrator. If NBA Commissioner Adam Silver had the authority that Goodell has, I think the results would be different because he has a legal background.”
Despite the tidal wave of criticism. Goodell continues to ride the crest of NFL prosperity, i.e. - he continues to make wads of money for NFL owners. McCann explains, “Credit and blame flow upward. That crisis that we discussed does not affect the NFL’s bottom line.
“These off-field disciplinary issues are negative, but in a kind of perverse way, they have actually added to the league’s popularity. Think of all the people who were not interested in the NFL, but have become interested recently because of these stories.”
Speaking of stories, McCann has filed more than 400 of them for Sports Illustrated and SI.com. He has been featured on numerous multi-media outlets, most recently Fox Sports 1, Monday Night Football, and MSNBC.
So, what draws this journalistic lawyer and lawyerly journalist to a subject? “I like stories that are teachable and that comport to the classroom,” he relates. “Sports law involves some very serious areas of law.”
There are many who believe that the legal and moral issues in the NFL merely reflect those of society as a whole. McCann, who served as counsel to college football star Maurice Clarett in his NFL eligibility lawsuit, gives his view.
“I think it is fair to say that pro football mirrors society in some aspects. Tom Brady’s case was about management-union relations, but in life, it is not usually about a worker making $20 million a year. Certainly, the courts treat sports differently. You can fight in a game or on the field and get away with it. If you did that on the street, you would be tried in court.”
Media attention aside, McCann’s first love is education. He has won the Professor the Year Award for outstanding teaching several times and written more than 20 law review articles, including placements in the Yale Law Journal and Boston College Law Review. He has also presented at MIT Sloan Sports Analytics Conferences since 2009.
In 2011, the Society for Social Psychology & Personality awarded McCann its Media Prize for excellence in explaining legal topics to a general audience. While McCann is making a name for himself as a much sought-after media personality, he is first and foremost a teacher, and his Sports and Entertainment Law Institute at UNH Law is his most important stage.
He explains, “The program started a few years ago when I was a visiting professor at UNH Law School. They offered me a tenured position and a chance to direct the program. It is a great program that helps students build the necessary skills to get into the sports industry.
“People say there are no jobs in sports, but that is not true. Colleges are hiring more lawyers than ever. It is a growth industry. You may not become the attorney for the Patriots or Red Sox right when you graduate, but in our program, you will take the courses that will help you get there in the future. Recent sports stories have also included issues of labor law, evidence, and even murder. As a professor, I can use these stories to inform students about relevant areas of the law.”
John Molori is an author and columnist for numerous publications. Like him on Facebook at John Molori, Twitter @MoloriMedia. Email email@example.com.
Tuesday, September 22, 2015
David Stern: NBA Would Seek "Payment" for Sports Betting Legalization (and Other Interesting Revelations)
It turns out the Adam Silver was not the first NBA Commissioner to raise the prospect of legalized sports betting. Nearly two years before current NBA Commissioner Adam Silver penned the now-famous New York Times Op-Ed calling for the legalization of sports betting via a “federal framework,” his predecessor, David Stern, hinted at the very same thing. In a recently-unsealed deposition from the professional sports leagues' and NCAA's 2012 federal lawsuit to block New Jersey's efforts to legalize sports betting (the "Christie I" case), Mr. Stern elaborated on comments he made to Sports Illustrated columnist Ian Thomsen in a December 11, 2009 interview in which he stated that legal sports betting was a “possibility.”
In response to questioning from Attorney William Wegner (of the Gibson Dunn law firm, which represented New Jersey Governor Christie in the lawsuit), Commissioner Stern made a number revealing comments on why he believed legalized sports betting in the near-future was a “possibility” and “would ultimately be made legal” by the federal government. He pointed specifically to the “funding needs” of government and the changing attitudes about gambling as the main reason why believed PASPA would be "modified" at some point in his lifetime (if not his "professional lifetime"). Here is his full answer:
A: Because in my sort of view, the coming hunger for money, funding, in order to deal with deficits that our nation faces caused me to believe that within the next decade or two, if not sooner, PASPA would be modified so that the federal government would take over gaming and over our objections likely because the march of funding needs is so great that, you know, they would ultimately be made legal. Not any time soon, certainly not in my – maybe not in my professional lifetime, maybe in my lifetime depending upon how long I was planning to live. . . . We've gone from a culture that didn't allow lotteries to one where I'll bet you a majority of our states have a physical presence that allows some kind of casino gambling, starting out on the Indian reservation going to downtown casinos in Detroit and Cleveland and New York City actually.. So that the broader context of gambling has -- the fact that it's a regressive tax concerning to the people who are supposed to lead us, and they're interested only on the funding side. So it's -- it has been a march. I've been a witness. I've been a witness to it.
Commissioner Stern was also asked about his earlier comment--from the interview that he gave to SI's Ian Thomsen in 2009--that “buried within the threat of legalized gambling there may be a huge opportunity as well.” In his 2012 deposition, Stern elaborated on that prior statement as meaning that whenever nationwide sports betting becomes legal, “it would come with enough money to deal with the apparatus necessary to protect the sports from the threats that are posed.” Presumably, he is referring to the “integrity monitoring” that would likely be at the core of any future legalized sports betting framework. Significantly, Commissioner Stern added that any future legalized framework would necessarily have to involve the leagues as part of the “policing efforts” for which “there would likely be a payment of some kind at that time.” (emphasis mine)
While many have speculated that the four major professional sports leagues (and perhaps the NCAA) would demand a percentage of the wagering activity as part of any future legalized betting framework (in fact, two New Jersey legislators have previously floated this idea), Mr. Stern’s testimony represents the first—and only—time that a commissioner of one of the professional sports leagues has broached the subject of payments being made directly to the sports leagues.
But he did not stop there. Commissioner Stern also candidly admitted that the NBA’s internal rules and policies in place to protect the integrity of the NBA games were “ineffective” in the case of Tim Donaghy, the now-disgraced former NBA referee who allegedly bet on games that he refereed. Stern characterized the league’s detection of Mr. Donaghy’s gambling activities as “accidental,” noting that the league only learned of it as a result of an FBI investigation.
Commissioner Stern also revealed that that the NBA was, by 2012, already working with “gambling monitors” to obtain information that would help the league detect unusual wagering patterns on the league's games. He testified that the NBA “ha[s] a relationship with somebody or some people or some folks and we watch lines and get reports of unusual activity and things like that.” Stern also acknowledged that the Las Vegas sports books have provided the NBA with information about “unusual” betting activity on certain games, which he characterized as “a couple of strange betting events.” While he could not recall any specific instance, Stern did indicate that these games involved “unusual movement” on the betting lines.
While these statements represent only a small slice of Commissioner Stern’s deposition testimony, they nonetheless provide a glimpse into the future sports betting landscape, one which will apparently entail the leagues receiving a cut of the gambling revenues and the installation of an “integrity monitoring” apparatus to detect unusual wagering activity. At the very least, Commissioner Stern’s 2012 testimony (elaborating on statements he made in 2009) reveals that the NBA has been examining the issue of sports betting legalization long before the New Jersey situation developed. Stern’s testimony also surprisingly reveals that Adam Silver was not the first NBA Commissioner to recognize that legal sports betting was "inevitable."