Sports Law Blog
All things legal relating
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Tuesday, March 09, 2010
 
Harvard Law School 2010 Spring Sports Law Symposium

I look forward to speaking at this year's Harvard Law School sports law symposium. It will be all-day event on Friday, March 26. Here is some information on the symposium, which is in honor of Harvard Law School professor (and sports law pioneer) Paul Weiler and is open to the public, free of charge:

* * *

The Harvard Committee on Sports and Entertainment Law and Harvard Journal of Sports and Entertainment Law are pleased to announce the 2010 Spring Sports Law Symposium at Harvard Law School. The event will take place on Friday, March 26, 2010, and is open to the public, free of charge.

The theme for the symposium is “Operating in the Shadow of Upcoming Collective Bargaining Negotiations.” Each of our panels and keynote address will shed light on the key issues facing each league as it approaches the expiration of its collective bargaining agreement. In addition to discussing the key issues that will need to be resolved to avoid a labor stoppage in each league, we will explore how the labor uncertainty is affecting current operations within each league, and how any sort of a labor stoppage might affect the short-term and long-term interests of each league. In exploring each of these issues, we will draw from our panelists’ varied backgrounds to fully understand what is at stake for the leagues, teams, unions, players, and other entities close to the game.

Schedule of Events

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)
NFL Panel - 1:15 - 2:30 (Pound 101)
NBA Panel - 2:45 - 4:00 (Pound 101)
Keynote Address - 4:15 - 4:45 (Pound 101)
MLB Panel - 5:00 - 6:15 (Pound 101)
Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)

Chris Nowinski, President and CEO, Sports Legacy Institute
Sean Morey, NFL Player
Pete Kendall, NFL Player
Isaiah Kacyvenski, Retired NFL Player
Christian Fauria, Retired NFL Player
George Atallah, Assistant Executive Director for External Affairs, NFLPA
Moderated by Professor Peter Carfagna, Harvard Law School

NFL Panel - 1:15 - 2:30 (Pound 101)

Adolpho Birch, Vice President of Law and Labor Policy, NFL
David Feher, Partner, Dewey & LeBoeuf
Woodie Dixon, General Counsel and Director of Salary Cap, Kansas City Chiefs
Neil Cornrich, President, NC Sports
Sarah Stuart, Senior Counsel, Reebok
Moderated by Professor Michael McCann, Vermont Law School

NBA Panel - 2:45 - 4:00 (Pound 101)

Jeffrey Mishkin, Partner, Skadden, Arps, Slate, Meagher & Flom
Hal Biagas, Executive Vice President of Management, Wasserman Media Group
Michael Zarren, Assistant General Manager and Team Counsel, Boston Celtics
Matthew Hong, Senior Vice President and General Manager, Turner Sports
Robert Tilliss, CEO, Inner Circle Sports
Moderated by Professor Peter Carfagna, Harvard Law School

Keynote Address - 4:15 - 4:45 (Pound 101)

Robert Manfred, Executive Vice President for Labor Relations, MLB

MLB Panel - 5:00 - 6:15 (Pound 101)

Daniel Halem, Senior Vice President, General Counsel for Labor, MLB
Derek Jackson, Vice President and General Counsel, Florida Marlins
David Prouty, Chief Labor Counsel, MLBPA
Timothy Slavin, Assistant General Counsel, MLBPA
Joseph Rosen, Partner, Brown & Rosen
Moderated by Jimmy Golen, Associated Press

Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)
Presentation of the Paul C. Weiler Award

Monday, March 08, 2010
 
Highlights from MIT Sloan Sports Analytics Conference

On Saturday, I was a panelist at the 2010 MIT Sloan Sports Analytics Conference, which is hosted by ESPN and which has become (in my opinion) the biggest annual event for sports professionals. I spoke on the "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?" panel.

My panel included Phoenix Suns president of basketball operations and general manager Steve Kerr, ESPN The Magazine editor-in-chief Gary Belsky, and several other excellent panelists. It was an awesome discussion. I could detail points of our discussion and audience questions (which included a question asked by Indianapolis Colts team president Bill Polian), but ESPN's Kevin Arnovitz already does, and quite well, in his column on the panel.

For a review on the entire event, check out Henry Abbott's excellent recap.

Academic papers were presented at the event, and one will clearly attract a good deal of interest. University of Chicago Professor Tobias Moskowitz and Sports Illustrated senior writer Jon Wertheim have co-written a paper on the presence of omission bias among referees. The paper is titled, “Whistle Swallowing: Officiating & the Omission Bias”.

As Kevin Arnovitz details in his recap of the paper, an omission bias in this context refers to a referee's willingness to make an incorrect call rather than make an incorrect non-call. Brian Robb of ESPN's Celtics Hub also has an extensive piece on the paper, which will be part of a book that Moskowitz and Wertheim publish in the near future.

 
The Flying Hotdog Lawsuit: Coomer v. Kansas City Royals

Over on Torts Prof Blog this morning, I have a guest post on the relationship between "game presentation", where teams and stadium operators try to keep fans entertained at every moment during the game (e.g., firing t-shirts up into the crowd during timeouts), and tort law.

I pay particular attention to Coomer v. Kansas City Royals, a lawsuit which centers on a Royals fan who was hit in the eye by a hotdog thrown by the Royals' mascot, Slugger.

Here's an excerpt from the post:

* * *
We all know the expression, “It’s all fun and games till someone loses an eye.” Who would imagine that a hotdog could cause such an injury? According to Coomer, a hotdog indeed caused him a serious eye injury. He claims that he was a mere “few feet away” from Slugger when Slugger’s errant, behind-the-back throw led to Coomer’s left eye getting hit by a hot dog. Coomer suffered a detached retina and other eye damage. Coomer’s complaint doesn’t address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn’t state so).

Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care. Coomer has also filed a battery claim.

The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur.

* * *
To read the rest, click here.

Sunday, March 07, 2010
 
The Washington Wizards Dumped Jamison, Butler, and Haywood. Can they Dump Arenas and his Contract?

I have a new column up at the Huffington Post that takes a close look at the question on the minds of the Washington Wizards and their fans: Can the team terminate Gilbert Arenas' contract? An excerpt is included below. You can find the full column here. Also, for those looking for quick sports law updates throughout the day, you can follow me on twitter here... (Note: Link is now fixed)

So, the $80 million question comes down to this -- was the "egregious nature" of Arenas' conduct "so lacking in justification as to warrant" a league-imposed 50 game suspension and the termination of his contract?...The closest precedent we have for this case is the infamous choking incident involving Latrell Sprewell.

For the Wizards to terminate Arenas' contract, they would likely have to convince David Stern (and perhaps an arbitrator) that Arenas' conduct was more egregious than Sprewell's. Would they have a compelling argument? Perhaps. Let's compare the two. Arenas violated a specific written NBA rule prohibiting the possession of guns on NBA property (on a team that changed its name from the Bullets to the Wizards to avoid an association with gun violence). Sprewell violated a rule that was so obvious ("don't choke your coach") the NBA did not feel the need to write it down. Arenas compounded the situation by joking about the incident on twitter and in a pre-game team huddle on the court. Sprewell, after being wrestled away from his coach by his teammates, retreated to the locker room to cool off, and then returned to the court 20 minutes later to throw a punch at Carlesimo (and was later charged with reckless driving and served three months under house arrest during his suspension). Arenas had a prior gun offense -- he was suspended in 2004 for failing to properly register a gun. Sprewell had a prior fighting offense -- two years before the choking incident, Sprewell fought with his teammate Jerome Kersey. After the fight, he threatened to return with a gun (fret not, he only returned with a two-by-four).

Thursday, March 04, 2010
 
Fame and Infamy

In comments to my post about Roger Clemens, Ed Edmonds poses an interesting question:

Hasn't Jackson's banishment from baseball actually served to keep him in front of the baseball public for so many years? Does the average fan know as much about Tris Speaker, Nap Lajoie, Honus Wagner (if not for the baseball card) as they do about Jackson? Perhaps Rose can make more money selling his autograph because the controversy keeps his name before the public.

Ed is onto something about Rose remaining in the spotlight (and able to make money) because of his banishment--at least from 1989 until 2004, when he could play the aggrieved victim of unfair treatment (remember his Jim Gray interview at the 1999 World Series). That all ended when he published his book in 2004 and admitted (although without really apologizing for) what everyone already knew. He has rarely been heard from since.

Jackson remains relevant today because he is a singular figure, based on a combination of his greatness and his banishment. He remains more relevant than the other seven banned Black Sox because he was the best player and the only one unquestionably left out of the Hall of Fame because of the ban. He remains more relevant than his other Hall-worthy contempories (Lajoie, Wagner, et al.) because we still have something to talk, argue, and make movies about--whether he did anything wrong and whether the ban should be lifted and he should be redeemed with induction to the Hall (or at least a chance to play in an Iowa cornfield).

Will we remember Rose 90 years from now more because he has been banned than we will remember Hall contemporaries (say, Reggie Jackson or Tony Perez)? Maybe. Will we remember him more than if he just were let into the Hall? Maybe. One distinction could be between record-holders and "other" Hall-of-Famers. Rose was nowhere near the best player of his (or any other generation) or even the best hitter, but he does hold a significant career batting record. So perhaps, even without gambling, we would remember Rose more than we do Perez, just as we remember Ty Cobb more than we do Lajoie.

Wednesday, March 03, 2010
 
Settlement between MLB Properties and Upper Deck

Maury Brown at the BizofBaseball blog is reporting that MLB Properties and Upper Deck have settled their recent trademark infringement lawsuit. The terms of the settlement are detailed here, but in short Upper Deck has effectively agreed to cease its accused conduct in the future, and agreed to pay MLB Properties "significant" damages for its unlicensed 2010 products. Ethan Orlinsky, Senior Vice President and General Counsel, Major League Baseball Properties declared the settlement to be a "clear and decisive victory" for MLB. Based on the initial details of the settlement, I would have to agree.

Tuesday, March 02, 2010
 
Some thoughts on Roger Clemens

Journalist Jon Pessah talks about the legacy and current limbo status of Roger Clemens, based in part on recent conversation Pessah had with the should-be future Hall-of-Famer. In a sidebar, Pessah gathered comments about Clemens from a range of baseball watchers, including Mike and me.

Monday, March 01, 2010
 
New Sports Law Scholarship

Recently published scholarship includes:
Sean W.L. Alford, Comment, Dusting off the AK-47: an examination of NFL players’ most powerful weapon in an antitrust lawsuit against the NFL, 88 NORTH CAROLINA LAW REVIEW 212 (2009)

Jeffrey Benz, Common issues in international sports arbitration, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 165 (2009)

Kristan Bryant, Note, Take a knee: applying the First Amendment to locker room prayers and religion in college sports, 36 JOURNAL OF COLLEGE & UNIVERSITY LAW 329 (2009)

Christian Dennie, Tebow drops back to pass: videogames have crossed the line, but does the right of publicity protect a student-athlete’s likeness when balanced against the First Amendment?, 62 ARKANSAS LAW REVIEW 645 (2009)

N. Jeremi Duru, This field is our field: foreign players, domestic leagues, and the unlawful racial manipulation of American sport, 84 TULANE LAW REVIEW 613 (2010)

Virginia A. Fitt, Note, The NCAA’s lost cause and the legal ease of redefining amateurism, 59 DUKE LAW JOURNAL 555 (2009)

Michael Gerton, Note, Kids’ play: examining the impact of the CBC Distribution decision on college fantasy sports, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 153 (2009)

Mike Leach, A legal education applied to coaching college football, 42 TEXAS TECH LAW REVIEW 77 (2009)

Michael Lenard, The future of sports dispute resolution, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 173 (2009)

Richard H. McLaren & Geoff Cowper-Smith, The Beijing Summer Olympic Games: decisions from the CAS and IOC, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 69 (2009)

Matthew J. Mitten, Judicial review of Olympic and international sports arbitration awards: trends and observations, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 51 (2009)

Jennifer A. Mueller, Note, The best defense is a good offense: student-athlete amateurism should not become a fantasy, 2009 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 527-560

Chad M. Oldfather & Matthew M. Fernholz, Comparative procedure on a Sunday afternoon: instant replay in the NFL as a process of appellate review, 43 INDIANA LAW REVIEW 45 (2009)

Christopher Pruitt, Debunking a popular antitrust myth: the single entity rule and why college football’s Bowl Championship Series does not violate the Sherman Antitrust Act, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2009)

Scott Rosner & Deborah Low, The efficacy of Olympic bans and boycotts on effectuating international political and economic change, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 27 (2009)

John Ruger, From the trenches: the landscape of sports dispute resolution and athlete representation, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 157 (2009)

Michael S. Straubel, Lessons from USADA v. Jenkins: you can’t win when you beat a monopoly, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 119 (2009)

Geoff Varney, Note, Fighting for respect: MMA’s struggle for acceptance and how the Muhammad Ali Act would give it a sporting change, 112 WEST VIRGINIA LAW REVIEW 269 (2009)

Jeremy A. Wale, Adequate protection of professional athletes’ publicity rights: a federal statute is the only answer, 11 THOMAS M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 245 (2009)

Adam Wasch, Children left behind: the effect of Major League Baseball on education in the Dominican Republic, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 99 (2009)

Maureen A. Weston, Doping control, mandatory arbitration, and process dangers for accused athletes in international sports, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 5 (2009)

Dr. Glenn M. Wong, Kyle Skillman & Chris Deubert, The NCAA's Infractions Appeals Committee: Recent Case History, Analysis and the Beginning of a New Chapter, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 47 (Fall 2009)

Brian P. Yates, Whether building a new sports arena will revitalize downtown and make the team a winner, 17 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 269 (2009)

Sunday, February 28, 2010
 
2010 MIT Sloan Sports Analytics Conference

I look forward to being a speaker at the 2010 MIT Sloan Sloan Sports Analytics Conference, which will be held this Saturday, March 6. It will be an all day event. Other speakers include:

* Daryl Morey, Houston Rockets GM (and MIT grad)

* Mark Cuban, Owner of the Dallas Mavericks

* Steve Pagliuca, Managing Partner of the Boston Celtics

* Sunil Gulati, President, United States Soccer Federation & Kraft Soccer

* Michael Lewis, author of Money Ball

* Jonathan Kraft, President of the Kraft Group and executive at the New England Patriots

I'll be on the panel titled, "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?". Here are some details on it:

Athletes have progressively gotten bigger, faster, and stronger since the beginning of professional sports. This panel will delve into the science and technology that is producing better athletes. Is there a limit to athletic performance? What constitutes a "level" playing field and when is the line crossed? How are sports changing to deal with today's athletes?

Panelists

Michael McCann, Legal Analyst, Sports Illustrated

Moderator

Gary Belsky, Editor in Chief, ESPN The Magazine

For more information click here.

Saturday, February 27, 2010
 
The Star Caps Saga Continues

More than a year after the NFL attempted to suspend Pat and Kevin Williams of the Minnesota Vikings for violating the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”), litigation involving the case continues. The case took another turn last week when Judge Gary Larson, a Minnesota state court judge, handed down a 44 page opinion in response to the parties’ motions for summary judgment.

Here are some questions raised by the fairly dense opinion, with some answers.

1. What was the ruling? Judge Larson spent most of the opinion rejecting the arguments of the NFL and the Williamses. He rejected the NFL’s arguments that the league’s drug policy should trump state law, and rejected most of the Williamses’ arguments that the suspensions violated Minnesota state law.

2. Did the NFL Win? Yes and no. I’ll start here with what they lost. The NFL was looking for a sweeping victory in this case. The league wants a court—or Congress—to make a determination that the NFL’s drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or Judge Larson.

Instead, Judge Larson held that the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA) apply to professional sports leagues. Why? Well, most simply, because the statutes do not provide any explicit exception for the sports leagues. Although the legislative history of the statutes make it fairly clear that those laws were not created to govern the performance-enhancing drug testing of professional sports, Judge Larson was not willing to ignore the plain meaning of the statute to read in an exception for the NFL. In other words, if the NFL wants an exclusion from DATWA and CPA, it will have to obtain one from the Minnesota state legislature, not from Judge Larson.

Also, using the same rationale as the federal courts, Judge Larson rejected the NFL’s argument that the NFL’s collective bargaining agreement preempts DATWA and CPA.

3. Lost and 24 are having disappointing seasons. What can they do to improve? One word: crossover. Who wouldn’t want to watch Jack Bauer shouting and torturing his way across the island? “The following takes place between, well, I have no idea when this is taking place.”

4. Did the NFL Violate Minnesota State Law? Judge Larson rejected most of the Williamses’ arguments under DATWA (and all of the CPA claims), but held that the NFL violated DATWA by failing to inform the Williamses of their positive test results within three days of the test. Judge Larson also held that the NFL may have violated DATWA’s confidentiality provision. The press allegedly found out about the positive test results before the players, but it’s unclear if the results of the tests were disclosed by the NFL. That issue will have to be determined at trial.

5. If State Laws Apply to the NFL’s Drug Testing Policies, How Can the NFL Maintain a Uniform Policy?
Since the beginning of this dispute, the NFL has argued that application of state laws to the NFL’s drug policies will destroy the ability of the NFL to maintain an effective, uniform drug policy. Judge Larson, however, was unconvinced by the NFL’s argument for two primary reasons. First, Judge Larson was not persuaded that the NFL had a special need to maintain a uniform policy. He wrote: “Despite varying state laws, corporations that participate in employee drug testing conduct business across state lines everyday in this country. Defendants fail to demonstrate why it would be more onerous for the NFL to comply with state laws, than for any other business engaged in interstate commerce.”

Second, even if the NFL did have a special need for uniformity, Judge Larson held that this need is outweighed by Minnesota’s interest in protecting the health and safety of its employees.

Why the lack of deference given to the NFL? In part, it could simply be that Judge Larson does not believe that the NFL should be treated any differently than other interstate businesses and should not be able to bargain around state law. But, Judge Larson also made it clear that he did not see why application of DATWA would prevent the NFL from enforcing its drug policy. According to Judge Larson, DATWA only provides a floor, or minimum protections, for drug testing, and the NFL is free to provide more protection. Judge Larson did not see how notifying the players of their positive tests within three days and not (potentially) leaking the results of the test to the media (which would also violate the confidentiality provision of the NFL’s own policy) would hurt the ability of the NFL to enforce its policy. The NFL, of course, is making a broader argument—they are concerned that a state would enact a law that is too lenient and would prevent the league from disciplining its players in a uniform manner. According to Judge Larson, however, DATWA does not present those concerns, so he did not need to respond to the NFL’s broader argument.

6. Can the NFL Still Win this Case? Yes. It’s not all bad news for the league. DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it can prove at trial that the Vikings, and not the league, are the employer of the Williamses. A ruling that the NFL is not the employer of the players would be a sweeping victory—it would immunize the league from Minnesota state employment law (and potentially from other similar state statutes). But, here’s where it gets interesting. As Judge Larson explained, the Willamses can argue that the NFL is their employer under the “single employer doctrine,” which “looks at whether the commonality of the employers’ operations, management, labor relations, and ownership or financial control, is sufficient to indicate that they should be treated as one whole.” In other words, if the court determines that the league and its teams should be treated as “one whole,” then the NFL is the employer of the Williamses and in violation of DATWA. So, for purposes of this case, it is in the best interests of the NFL to argue that the league and the teams should not be treated as a single entity.

Yet, earlier this year, the NFL argued before the Supreme Court in American Needle that NFL teams have no value without the league and thus the league and its teams should be considered one entity. Granted, the single employer doctrine in the Star Caps case and the single entity antitrust doctrine in the American Needle case are different legal theories that serve very different functions. So, it would not be entirely inconsistent for the NFL to argue that each of the individual teams employs their individual players for purposes of employment law, and that each of these teams and the league act as one entity for purposes of antitrust law. But, there is some overlap in the two doctrines, and the NFL might be walking a fine line here. At a minimum, the NFL’s position in the Star Caps case (that there is a distinction between the teams and the league for employment purposes) lends additional weight to the conclusion of nearly every court that sports leagues and their teams constitute multiple entities for antitrust purposes when acting in the labor market. Of course, this conclusion is not inconsistent with the Seventh Circuit’s decision in American Needle, where the Seventh Circuit recognized that the NFL might be a single entity in some markets (e.g., licensing of intellectual property) and multiple entities in others (e.g., signing players).

7. What’s next?
A settlement conference is scheduled for March 1st, and the trial is set for March 8th. If the NFL loses the case and subsequent appeals, look for them to ask the Minnesota state legislature to exclude professional sports leagues (or at least those with collectively bargained drug policies) from DATWA. If that fails, we might see the NFL go back to Congress asking for help…

Friday, February 26, 2010
 
New SI.com Column on NFL Teams Cutting Players with Post Concussion Symptoms

In the wake of the Eagles cutting Brian Westbrook, I have a new SI.com column on the legal, ethical, and political implications of NFL teams cutting players who suffer from concussions. Here's an excerpt:

* * *

The NFL's collective bargaining agreement does not distinguish concussions from other injuries for purposes of cutting a player. But should it?

After all, there is an arguable disconnect between the NFL's stated commitment to addressing the concussion problem and the ability of teams to cut players who were injured by concussions. In his testimony before the House Judiciary Committee last October, commissioner Roger Goodell said of the link between head injuries and brain ailments, "I can think of no issue to which I've devoted more time and attention than the health and well-being of our players, and particularly retired players."

If that is true, shouldn't players who suffer concussions receive heightened employment protections? In fact, if a player can be cut because of postconcussion symptoms, he may have an incentive to not reveal his injury, a decision that could undermine his health, particularly his long term neurological health.

* * *

NFL teams, for their part, could argue that their decision to cut players who suffer from postconcussion symptoms is neither heartless nor at odds with league efforts to curb concussions; rather, it is a necessity of a salary cap that ties teams' hands. Teams might also insist that it's not their fault if a player suffers concussions -- it's the sport's fault or an unfortunate materialization of risk that every NFL player assumes every down he plays.

Still, the NFL may want to think carefully about teams cutting players with postconcussion symptoms. Congress would seem poised to revisit the concussion topic if there were a pattern of players cut after suffering concussions. Congress has leverage over the NFL, including the threat that it can repeal the Sports Broadcasting Act, which provides antitrust immunity to the NFL and other leagues for their national TV deals. Congress might also re-evaluate the NFL's status as a 501(c)(6) nonprofit organization, which furnishes the league with favorable tax treatment.

* * *

Hope you have a chance to read the rest of the column. I'll be on ESPN Radio's John Clayton Show at 6 p.m. Saturday to discuss the column.

 
An Update on MLB Properties v. Upper Deck

As discussed here earlier in the month, MLB Properties - MLB's trademark licensing and enforcement entity - recently filed a trademark infringement lawsuit against trading card manufacturer Upper Deck, alleging that Upper Deck was producing unauthorized sets of baseball cards featuring MLB uniforms and logos. On February 16th, Judge Sweet granted a motion by MLB Properties seeking to condense the hearing for a preliminary injunction along with an expedited trial on the merits, with a trial date now set for April 19th.


The Beckett Blog is closely following the litigation in a series of posts, including a recent interview with trademark attorney Miguel Danielson about the case. Meanwhile, most of the court papers are publicly available here.

Thursday, February 25, 2010
 
What about curling?

As the Olympics wind down, I found myself thinking about the "What's a Sport?" question as applied to one of the darlings of these Games--curling. Curling seems to have been discovered in Vancouver, as the public has learned of the game's rhythms (somewhat comparable to baseball), its shot-making and strategy (comparable to golf, with collision physics thrown in), and the attractiveness of many of the female curlers (several European curlers even posed nude for a fund-raising calendar). And curling was a staple of NBC's afternoon live cable coverage during the first week (because the stuff people initially wanted to see was being held for tape-delay), so it was easy to find.

So, is it a sport? Looking at our narrow definition (borrowed from anthropologist John Jackson), no. Jackson requires: 1) a ball or ball-like object as the center of attention; 2) a sense of physical urgency when the ball is in play; and 3) the opponent taking steps to thwart one player's efforts as to the ball.

Curling is OK as to # 1 and # 3--the stone qualifies as a "ball-like object" and the purpose of the game is get your stone closest to the center, often by deliberately knocking the other team's stone away. But it runs into a problem on # 2--sense of physical urgency while the ball is in play. There are no periods of running after the ball--much like golf, which Jackson expressly excludes from his definition. Perhaps we could argue there is physical urgency for the sweepers who must follow the stone and often have to move (and sweep) quickly to get the stone where they want it. The physical movement in curling is arguably greater and more urgent than in golf. In golf, the ball is hit and everyone stands and waits to see where it lands; in curling, the stone is launched and there is some rapid movement to control its progress. So perhaps # 2 is satisfied; it's a close call.

What about the broader definition: 1) Large motor skills; 2) simple machines only; 3) objective scoring; and 4) competition.

Curling passes. The brooms qualify as simple machines and large motor skills in upper and lower body, as well as great balance, are necessary for both the person who launches the stone and the sweepers (putting aside whether sweeping should be part of any sport). Scoring is objective and immediately determined. There you go.

 
Seton Hall Symposium Postponed

Due to weather, the Seton Hall sports symposium originally scheduled for tomorrow will be postponed. I'll update when a date gets set.

Monday, February 22, 2010
 
New SI.com Column on Legal Implications of the Olympic Luger's Death

I have an SI.com column on the legal implications on the tragic death of Nodar Kumaritashvili. Here's an excerpt:

* * *

A related issue to the dangerousness of conditions is the type of legal duty owed by the parties to Olympic athletes. According to page 15 of the Olympic Charter, which furnishes the core set of guidelines for the Olympic Games, one of the IOC's roles is "to encourage and support measures protecting the health of athletes." Similarly, according to its own statutes, the International Luge Federation, which regulates luge competitions and works with the IOC, also adheres to the Olympic Charter. Parties involved in the design, construction and maintenance of the Whistler Track would also be expected to provide lugers with reasonable safety.

There are, however, a number of factors that would work against recovery for Kumaritashvili's parents. For one, Kumaritashvili, like other Olympic athletes, had to sign a waiver with the IOC to participate in the Games. The form states: "I acknowledge and agree that: a. I participate in the XXI Olympic Winter Games in Vancouver at my own risk and that I will take all reasonable measures to protect myself from the risks of participation." While waivers are powerful pieces of evidence and bar many forms of civil actions, they are not necessarily complete defenses. The precise wording of the waiver matters considerably; though the Olympic athlete clearly assents to assuming risk as a general matter, certain types risks may not be assumable. Along those lines, even when waivers expressly bar legal claims, they normally do not bar claims based on egregious or unforeseeable behavior. In addition, the IOC's waiver protections may not extend to a torts claim, such as one sounding in wrongful death or negligence, brought against VANOC or other parties.


 
Reaction to Tiger Woods Apology

Sports attorney Jay Reisinger has a thoughtful reaction to Tiger Woods's apology:
Some in the media have asked me whether Tiger took the correct path in handling this matter with respect to public relations given that I had represented Sammy Sosa, Andy Pettitte, and A-Rod (and others) in somewhat similar circumstances. To be candid, I would have provided different advice, and employed a different strategy, but that is not to say Tiger (and/or his advisors) chose the wrong path. At the end of the day, Tiger only had to apologize to his wife, his family, and his friends, which he did. He does not need to apologize to the American public or his sponsors. With his statement (and I’m sure well before then), he apologized to the only people he needed to apologize to. This was a personal failure, not a professional failure.
I agree with Jay that Tiger might have been better off employing a different apology strategy. A full press conference in which he answered questions, or a simple written apology could have served him better. The strategy he instead chose seemed like an attempt to get credit for being a public event or even press conference, but in many ways it was neither. It was Tiger Woods reading a statement that had been carefully written, probably by a number of folks, in a controlled environment without the possibility of questions.

On the other hand, a lot of people seemed to like the speech, so maybe it was the right move. When's the last time an apology generated this much attention? NY Daily News has a good list of 21 famous apologies, most of which are from the last 10 years.

Saturday, February 20, 2010
 
The Chicago Cubs and Salary Arbitration - Ryan Theriot's Hearing is the Last One of the Year

The Chicago Cubs have one of the most interesting team histories in salary arbitration. Their hearing yesterday with Ryan Theriot is only the sixth in the history of the franchise. It is also the first for general manager Jim Hendry. The Cubs hold a 3-2 edge over their players. The fact that they are one of the teams with the fewest hearings is interesting enough. To me, however, what is really fascinating is the list of the five players in the group that Theriot is joining: Andre Dawson, Shawon Dunston, Leon Durham, Mark Grace, and Bruce Sutter. What a group of players! Here is a list of the number of years that these five players spent in the major leagues: Dawson - 21; Dunston - 18; Durham - 10; Grace - 16; and Sutter - 12. The analysis could go on in so many directions.

Although Dawson’s plaque in Cooperstown will depict him as a member of the Montreal Expos, “Hawk” will join Bruce Sutter who was inducted in 2006. Sutter’s plaque shows the reliever with a St. Louis Cardinals cap. Dawson lost his hearing in 1988 ($1,850,000 - $2,000,000). Mark Grace, the most recent hearing before Theriot, lost his case in 1993 ($3,100,000 - $4,100,000). Shawon Dunston defeated the Cubs in 1990 ($925,000 - $1,250,000). Leon Durham lost his 1985 hearing ($800,000 - $1,100,000). Bruce Sutter defeated the Cubs in 1980 ($350,000 - $700,000). Stephen Goldberg, the most experienced of all salary arbitrators, decided three of the previous five hearings. He ruled for the Cubs in the Dawson and Durham cases and against Chicago in the Dunston case. Howard Block handled the Grace case, and Thomas Christenson decided the Sutter case.

The other general managers for the Cubs that have gone to hearings are Bob Kennedy (1980 - Sutter), Dallas Green (1985 - Durham), Jim Frey (1988 - Dawson, 1990 - Dunston), and Larry Himes (Grace - 1993). Jim Hendry became the general manager in July 2002.

Theriot is hoping to win his case today with a demand for $3,400,000. The Cubs offered $2,600,000. Stephen Drew’s signing at $3,400,000 on January 19 should work against the Cubs. Drew is in the same service class as Theriot (3 years). Erick Aybar of the Angels, who agreed late this week to a $2,050,000 deal with $100,000 in possible incentives is also in this service group.

Thursday, February 18, 2010
 
The Good News is That Arbitration is Nearing the End - Jeff Mathis and the Angels

Mike DiGiovanna reported this morning on the Los Angeles Times Sports Blog that Jeff Mathis is in Tampa today for his hearing with the Angels. Mathis, who received $450,000 for his services last year, is seeking $1,300,000. The Angels offered $700,000. Those figures create a midpoint at $1,000,000. Mathis is in the three-four year service group, and his career batting average is right at the Mendoza line (.200). If you want a good explanation of the Mendoza Line, see Paul Dickson, The Dickson Baseball Dictionary, 540-541 (Third ed., 2009). Mathis split time last year with Mike Napoli, who played in 114 games to 84 for Mathis.

In his blog posting, DiGiovanna also reports that Erick Aybar, the other Angels’ player who has not yet settled his case, is expected to avoid a hearing and reach an agreement. Aybar is also in the three-four year service group.

 
WSJ Law Blog on Luge Accident Liability

Ashby Jones from the Wall Street Journal's Law Blog has posted a story on potential legal issues surrounding the tragic death of Georgia luge racer Nodar Kumaritashvili last week in Vancouver. Sports Law Blog former guest Ryan Roderberg, Duke Law Professor Doriane Coleman, and I are quoted in the story. Although the grieving family so far has not indicated interest in a lawsuit, any such claim would appear to face some obstacles due to the available defenses of express, primary, and secondary implied assumption of risk. Given apparent complaints about the track prior to the accident, however, a plaintiff might be able to overcome such obstacles.

 
Figure-skating: Still fixed, still not a sport

If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges.

Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging. The theory was that if no one could know how anyone else voted, there was less likelihood that someone would bribe a judge or trade votes, since there was no way to ensure the other side held up their end of the bargain. But a new study by Dartmouth economist Eric Zitzewitz finds that anonymous scoring has had the opposite effect: Home-country bias is about 20 percent higher than under the old full disclosure system. Although backroom-dealmaking is riskier (and thus less likely), the loss of public and media accountability makes it easier for individual judges to bias for home skaters (or skaters from "friendly" nations).

Jon Siegel discusses a proposal from his GW colleague Michael Abramowicz. His solution is to evaluate judges based on how close their individual scores are to the average of all the scores for a skater (with the average reflecting, to some degree, the "right" score). After compiling each judge's scores over time, rewards such as compensation and choice assignments (which competitions, which events) could be determined by how close a judge is to the average over all each competitions.

Interesting idea. But I disagree with Jon that this could "solve the problem of subjectivity in figure skating judging." Nothing can solve that problem, because the judging is inherently subjective and nothing is going to change that. But that just goes to my bugaboo of why it is not a sport.

Let me leave on two questions. First, why don't we have similar problems in other judged Olymic events (similarly, not sport), such as moguls skiing (I watched this and still have no idea how the winner was determined) or half-pipe snowboarding (or whatever it is that Shaun White keeps winning)? Second, were we actually better off in the days of the hallowed-yet-infamous East German Judge, when we recognized that the thing was rigged along Cold War politics and just dealt with it?

Wednesday, February 17, 2010
 
A Hearing a Day - Wandy Rodriguez

The Houston Astros and pitcher Wandy Rodriguez held baseball’s fifth hearing of the year today. The Astros offered Rodriguez $5,000,000 while the pitcher requested $7,000,000. The gap of $2,000,000 demonstrates a significant disagreement between the two parties over the lefty’s value. The midpoint is $6,000,000. Rodriguez was paid $2,600,000 in 2009 after exchanging figures with Houston ($3,000,000-$2,250,000), and he is in the service group of players between four and five years. Four of the strongest starters in this group signed multi-year contracts: Felix Hernandez (Seattle), Edwin Jackson (Arizona), Josh Johnson (and Justin Verlander (Detroit). The one-time star of this group, Chien-Ming Wang just signed a $2,000,000 deal with Washington this week. Joe Blanton (Philadelphia), who just barely made it into the service group with over five years, also signed a multi-year deal.

The panel was Richard Bloch, Elizabeth Neumeier and Fredric Horowitz. Bloch is a very experienced arbitrator with a significant pro-team record. Rodriguez was 14-12 last season with a fine 3.02 ERA and a career high strikeout total of 193. His career won-loss log is 51-52. Again, I will post more in the comments section.

 
The 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition

Last week, Tulane Law School hosted the 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. This year’s problem was based on the Star Caps case that has been discussed at great length on this site.

I want to take this opportunity to thank the students at Tulane Law School—in particular Nathan Prihoda, Marcus Edwards, Daniel Meyer, Julia Farinas, Andrew Miragliotta, Ashlee Cassman—for all of their hard work in putting this event together. I also want to thank our “celebrity” guest judges for joining me on the panel to judge the finals of the competition. The guest judges were: Andrew Brandt, the founder of the National Football Post and a former vice president for the Green Bay Packers (among many other things), Richard House, General Counsel of the New Orleans Hornets. Judge John Grout, Jr., and Joe Ettinger, Tulane Law class of 1956. And, of course, thanks to the students from the 40 different law schools from around the country for competing in this year’s event. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras.

Finally, congratulations to the winners of this year’s competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:

The Winner of the 2010 Competition was: Loyola University New Orleans School of Law.

The Runner-Up: Southwestern University School of Law.

The best brief was submitted by: UC Hastings College of the Law.

 
University of Baltimore Law School of Law Sports Law Symposium

If you're in the Baltimore area, tomorrow from 10:30 a.m. to 3:30 p.m. the University of Baltimore will be hosting a symposium that will address three issues: (1) increasing coaches' compensation; (2) the status of the NFL's collective bargaining agreement; and (3) licensing the Ultimate Fighting Championship. The keynote speaker will be agent Tom Condon, who is an alum of the law school. For more details, click here.

 
Not Another Post on Salary Arbitration - Oh, Yes - Brian Bruney

The Washington Nationals went to a hearing yesterday with Brian Bruney, the relief pitcher that they acquired from the New York Yankees in December. Bruney hopes to compete for the closer role with Matt Capps, another new acquisition for the Nationals, although the former closer for the Pirates certainly has more experience in that role.

The Nationals, a team that seems to enjoy going to hearings and may have another before the end of the week with Sean Burnett, offered Bruney $1,500,000. That figure is a modest increase over the $1,250,000 that Bruney made with the Yankees last year. Bruney is seeking $1,850,000 leaving a midpoint of $1,675,000. The panel that heard the case was Dan Brent, Sylvia Skratek, and Steven Wolf. The panel might be inclined to look at Bruney’s numbers last year, a 5-0 won-loss record and a 3.92 ERA in his role as setup man, and feel that he should receive more than a modest increase. However, an early season injury and the fact that he was not on the Yankees' roster for both the Twins or the Angels playoff series and turned in a poor single game performance in the World Series might well be used favorably by his new team. This must have been an interesting hearing for the Bruney side of the table that listened to a presentation by a team he has never pitched for. Will Bruney get his number on his birthday? I will add more in the comments as usual this year.

Monday, February 15, 2010
 
Cody Ross - Arbitration Hearing Three

Cody Ross and the Florida Marlins headed to their hearing this morning. According to reports that I have read, the arbitration panel for this case was Margaret Brogan, Howard Edelman, and James Oldham. The Marlins, like their counterpart in Tampa Bay, use a file-and-go philosophy with their salary-arbitration players. Ross played in 2009 for $2,225,000, and he is seeking a raise to $4,450,000. The Marlins responded with an offer of $4,200,000 leaving a midpoint of $4,325,000 and a gap of $250,000. Another similarity with the Rays is the relatively small gap in the two exchanged figures number. The gap in the Upton-Tampa Bay case was $300,000. The Rays won their case on Saturday to maintain the only perfect record in arbitration. The Philadelphia Phillies had a 7-0 record until they lost their case to Ryan Howard in 2008.

Ross’s primary 2009 and career statistics are:

G - 151 - 483; PA - 559 - 1506; 2B - 37 - 99; SO - 122 - 354; HR - 24 - 72; BA - .270 - .264; OBP - .321 - .323; SLG - .469 - .484

Ross and Corey Hart are in the same service class. The Hart decision last week did not help the Marlins.

I will place additional analysis in the comments section related to this post. There is one more hearing that will most certainly happen this week because the Astros have a similar philosophy to the Marlins and Rays. That one is between Houston and Wandy Rodriguez on Wednesday. Other cases that have not settled yet are the Angels and Erick Aybar and Jeff Mathis, the Nationals and Brian Bruney and Sean Burnett, and the Chicago Cubs and Ryan Theriot.