Sports Law Blog
All things legal relating
to the sports world...
Wednesday, February 22, 2017
How To Pay College Athletes Without Taxing Their Scholarships

In recent years, many opponents to paying college athletes including U.S. Senator Richard Burr (R - N.C.) have proclaimed that paying college athletes would cause athletes to lose the tax-exempt status of their scholarships.  This argument, while scary to "pay for play" advocates, is not necessarily accurate.

In a forthcoming law review article in Boston College Law Review entitled "For Student-Athletes to Employee Athletes: Why a 'Pay for Play' Model of College Sports Would Not Necessarily Make Educational Scholarships Taxable," I explain why a "pay for play" model for college sports would not necessarily require college athletes to pay taxes on their educational scholarships.  While previous literature on this topic have considered this issue exclusively under Section 117 of the tax code (qualified scholarship exemptions), this article looks at five separate tax code sections and poses numerous different ways that colleges could conceivably maintain the tax-exempt status of paid college athletes' scholarships.

I would encourage those interested in college athletics, education law, tax law, and the college athletes rights movement to read this article.  All feedback is encouraged.

Boston College Law School Sports Symposium

Tis the season for sports law symposiums. The Boston College Law School will be hosting their "Second Annual Sports Law Symposium" this Saturday, February 25 from 2:00 to 5:00 pm. There will be three panels, two of which will be moderated by two of our own editors: Michael McCann and Warren Zola. (Note: as they do the circuit they will also both be at Harvard Law School on Tuesday, March 7. Details here.)

The Legality of Daily Fantasy Sports
Moderator: Michael McCann, University of New Hampshire
Panelists: Fred Yen, Boston College Law School and Faisal Hasan, DraftKings

Keynote on Collective Bargaining in Professional Sports
Speaker: Lyman Bullard, Choate, Hall & Stewart

Legal Issues in College Athletics
Moderator: Warren K. Zola, Boston College
Panelists: Alex Roy, Brown University and Paul Kelly, Jackson Lewis

The day is open to the public, but the organizers ask you email Kayla Acklin.

Intentional walks and limiting rules

Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.

Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).

The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).

Monday, February 20, 2017
Northwestern Law 3rd Annual Sports Law Symposium

For anyone who will be in Chicago this coming Wednesday, February 22nd, Northwestern University's Pritzker School of Law will be hosting its 3rd Annual Sports Law Symposium, and I am honored to join the panel. See below for details:

From Colin Kaepernick's refusal to stand for the national anthem to the NCAA's decision to relocate the men's basketball tournament, 2016 saw several political stands in the sports world. In 2017, this trend is set to continue, as Super Bowl champions plan to skip the customary White House trip and figures like NBA coach Gregg Popovich criticize the President's policies. Join us as our panelists discuss these and other headlines, as well as the risks and legal issues associated with activism in the sports industry.

6:15 PM -8:30 PM


Timothy Liam Epstein
, Chair of Duggan Bertsch Sports Law practice group, Adjunct Professor of Law at Loyola University Chicago School of Law.

John Kaites, Principal and founding partner at Global Security and Innovative Strategies; Of Counsel at Fennemore Craig in Phoenix, Arizona; Has represented fourteen Major League Baseball Clubs, two NBA Basketball Teams, and the National Hockey League.

Tony Pashos, 1L at Northwestern Pritzker School of Law; Former American football offensive tackle who played in the NFL with the Baltimore Ravens, Jacksonville Jaguars, San Francisco 49ers, Cleveland Browns, Washington Redskins and Oakland Raiders.

Rick Smith, Partner of Priority Sports & Entertainment agency, alum of Northwestern Pritzker School of Law.

Marques Sullivan, Vice President of the NFL Retired Players Association; Head Coach at Midwestern Preparatory Academy; Former professional American football offensive lineman for the Buffalo Bills, the New York Giants, the New England Patriots and the Chicago Rush.

Friday, February 17, 2017
Liberal Sportwriting

The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read.

Legal & Ethical Issues Affecting NFL Player Health

Harvard Law School will be holding their 2017 Sports Symposium on Tuesday, March 7 with the topic this year of "Legal & Ethical Issues Affecting NFL Player Health." The event will be highlighted by a keynote address by DeMaurice Smith, the executive director of the NFLPA. The tentative panels and participants are:

Keynote Address
DeMaurice Smith, Executive Director, NFLPA

Concussion Legacy Foundation
Chris Nowinski, Co-Founder & CEO, Concussion Legacy Foundation
Robert Cantu, MD, Co-Founder & Medical Director, Concussion Legacy Foundation
Isaiah Kacyvenski, Co-Founder & Managing Director, Sports Innovation Lab
Peter Carfagna, Lecturer on Law, Harvard Law School

NCAA Panel
Oliver Luck, EVP of Regulatory Affairs, NCAA
Brant Berkstresser, Assoc Dir of Athletics, Head Trainer, Harvard University
Buddy Teevens, Head Football Coach, Dartmouth University
AL (Larry) Spitzer, Partners, Ropes & Gray
Warren K. Zola, Carroll School of Management, Boston College

Athlete Panel
Andrew Hawkins, Cleveland Browns
Stephon Tuitt, Pittsburgh Steelers
Johsnon Bademosi, Detroit Lions
Michael McCann, University of New Hampshire

Team, NFL & NFLPA Perspectives
Arthur McAfee, SVP of Player Engagement, NFL
Joe Briggs, Public Policy Counsel, NFLPA
Kevin Warren, COO, Minnesota Vikings
Christopher Deubert, Senior Law & Ethics Associate, Petrie-Flom Center, Harvard Law School
Kenneth Shropshire, Professor, Wharton School

Open to the public, the event will run from 9:00 am to 3:30 pm in Milstein West on the Harvard Law School campus. For more details on the event, feel free to contact Carlin O'Donnell, the Director of the Sports Symposium for HLS's student-run Committee on Sports & Entertainment Law (CSEL).

Friday, February 03, 2017
Trade Secrets in Professional Team Sports

Earlier this week, Major League Baseball's commissioner Rob Manfred closed the book on the professional sports industry's first known case of corporate espionage in the digital era. Back in 2015, news reports emerged that the Federal Bureau of Investigations was exploring whether one or more officials from the St. Louis Cardinals had illegally accessed -- or hacked -- a proprietary database belonging to the Houston Astros. The Cardinals' former scouting director, Christopher Correa, was ultimately identified as the perpetrator and charged for the offense. As a result, Correa is currently serving a 46-month jail sentence in federal prison. 

On Monday, Commissioner Manfred docked the St. Louis Cardinals the team's first two draft picks in the 2017 draft, and ordered the team to pay a $2 million fine. Both the draft picks and the fine will be given to the Astros as compensation for the illegal intrusion. In addition, Manfred also placed Correa on the permanently ineligible list, banning him from future employment in professional baseball for life.

The Cardinals-Astros incident highlights the emerging importance of the legal protection of proprietary information and analytics to the professional sports industry. In order to learn more about the steps that sports teams are taking to protect these types of data, I conducted a survey of the in-house legal counsel working for teams in the four major North American sports leagues this past spring, in the hopes of discovering both the types of proprietary information that teams are protecting under trade secret law, as well as the measures these teams are utilizing to safeguard their data.

The results of the survey are now available part of a new law review article, "Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports" (co-authored with my wife, Lara Grow), to be published this fall in the Washington & Lee Law Review. A working draft of the paper is now available for download. Here's the article's abstract:

The protection of trade secrets within the professional sports industry became a hot-button issue in the summer of 2015, after news reports emerged revealing that officials from Major League Baseball’s St. Louis Cardinals were under federal investigation for having illegally accessed proprietary information belonging to their league rival, the Houston Astros. Indeed, professional sports teams in the United States and Canada often possess various forms of proprietary information or processes — ranging from scouting reports and statistical analyses to dietary regimens and psychological assessment techniques — giving them a potential competitive advantage over their rivals. Unfortunately, as with the rest of the economy at-large, little empirical data exists regarding either the types of proprietary information owned by these teams, or the measures that teams are taking to protect their trade secrets.

Drawing upon freshly collected survey data, this article helps to fill this void in the literature by providing novel empirical evidence regarding the modern trade secret practices of the teams in the four major North American professional sports leagues. Based on the results of a first-of-its-kind survey conducted in the spring of 2016 of the general counsels of teams in the four major leagues, the article sheds light on both the types of information subjected to trade secret assertion by these firms, as well as the methods they are using to safeguard their data. In the process, the article examines the implications of these survey results for the professional sports industry, while also identifying potential new lines of inquiry for future trade secret research.

 Any thoughts or feedback on the article would be much appreciated!