Sports Law Blog
All things legal relating
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Monday, April 21, 2014
 
Why aren't the Mid-American Conference, Conference USA & Mountain West Conference being sued over Grants-in-Aid? Some Answers

In the last two months, several current and former college athletes have sued the NCAA, Pac-12, Big Ten, Big-12, SEC and the ACC over the value of athletic scholarships.

The first one to do so was former West Virginia running back Shawne Alston. Alston alleges that the NCAA, its member institutions, and the five major conferences are in violation of antitrust law by capping athletic scholarships (grants-in-aid) to the cost of tuition, room and board, books and fees. Clemson corner back Martin Jenkins and three other current players have raised the same basic argument in their own lawsuit.  If these players succeed, college athletes could receive more value--perhaps dramatically more value--in their scholarships.

One mystery to me and I know to several other sports attorneys is why these players and their attorneys did not also sue the Mid-American Conference, Conference USA and Mountain West Conference.  There is no obvious reason why these conferences and possibly other conferences weren't also named as defendants. 

I posed this issue to Jon King, who is one of Alston's lead attorneys. King, an attorney at Hagens Berman Sobol Shapiro, kindly answered.  There are several reasons, as his email details:
Hi Mike,

Speaking for the Alston case, a mix of reasons (which I'd imagine are the same in the other case), including these:

1) The 5 Power Conferences are among those that have disproportionate representation on the NCAA Division I Executive Committee, the NCAA Division I Board of Directors, the NCAA Division I Leadership Council, and the NCAA Division I Legislative Council. They thus have an increased ability to initiate, maintain, and change NCAA rules as compared to members of the other conferences.

2) They comprised 5 of the 6 BCS AQ conferences going back to the start of the class period in 2010.

3) Their Conference Commissioners have been the most outspoken during the class period in terms of stating publicly that they would pay the full stipend to players (meaning, the difference between the value of the athletics grant-in-aid vs. the actual cost of attendance) if permitted. These statements will assist in minimizing potential barriers to the certification of a damages class, and limit the defendants' ability to argue that individual issues on damages predominate.

4) The new NCAA legislative proposal afoot makes a clear distinctions between the 5 Power Conferences and all others in terms of potentially giving them autonomy, thus recognizing a distinction between them and others, no doubt in terms of revenue generated and other commercial factors. For example, see this article.

Finally, I note that cases often evolve, and defendants often wind up being added to a case as it proceeds (and also can be dropped if appropriate). For the reasons stated above, we thought it make the most sense to proceed as we did.

I hope this is helpful!

Best Regards,
Jon

Jon T. King | Hagens Berman Sobol Shapiro LLP | Direct: (510) 725-3034 

Saturday, April 19, 2014
 
Ejected for being bad at baseball?

On Friday night, Yankees reliever Cesar Cabral faced six batters in the eighth inning, hitting three of them. After the third HBP, Cabral was ejected by plate umpire Joe West. West said after the game that Cabral "probably" did not hit the third batter maliciously, but that "before somebody got hurt, something had to be done."

My question is where West got the authority to do it. Rule 8.02(d) of the Official Baseball Rules allows the umpire to "expel" a pitcher who intentionally throws at a batter. But no one believes Cabral was intentionally throwing at anyone (I happened to watch the game--Cabral was so bad that if he had thrown at the batter, he probably would have missed). Rule 9.01(c) gives umpires residual authority to "rule on any point not specifically covered in these rules." Perhaps that includes power to ensure player safety by ejecting a player whose performance threatens that safety. (In fairness to the ump's creative rule application,  Yankee manager Joe Girardi obviously did not want to go further into his bullpen and was going to stick with Cabral to finish the inning, no matter how ineffective or dangerous he was).

Is there some other basis for this ejection that I am missing?

Friday, April 18, 2014
 
Journal of Sports Analytics - Call for Papers

The Journal of Sports Analytics has announced a new call for papers pertaining to "sports law analytics."  The call for papers can be accessed here.  Please contact me if you have any questions.

Tuesday, April 15, 2014
 
On resting players for crunch time

From a guest at PrawfsBlawg.

 
UNH Law Welcomes Attorney Kathy Sulentic, Assistant Director of NCAA Enforcement

This should be a great event for anyone in the area who's interested in NCAA investigations and enforcement issues.  Concord New Hampshire is about 70 minutes from Boston.


Who is the National Collegiate Athletic Association (NCAA)? with Katherine Sulentic

Please join the UNH School of Law Sports and Entertainment Law Institute and the Franklin Pierce Center for Intellectual Property for a very exciting Lunch & Learn:

Who is the NCAA? with Kathy Sulentic

Lunch will be served.  Please RSVP: to ipcenter@law.unh.edu by Wednesday, April 16.
Following her presentation, Sulentic will host Office Hours to speak with interested students from 1:45-2:45 in office #197 in the IP Center.
We hope to see you there!

Katherine (Kathy) Sulentic currently serves as an assistant director of enforcement on the NCAA enforcement staff.

Her primary responsibilities include conducting joint investigations with institutions on potential Level I/II violations of NCAA legislation as well as leading the department’s academic integrity unit by providing subject matter expertise on Bylaw 14 and academic fraud issues.

Prior to joining the NCAA, Sulentic worked at both the University of Nebraska-Lincoln and the University of Colorado-Boulder in athletic academic advising.  At Nebraska, she worked with the sports of football, men’s and women’s track and field, and women’s rifle.

Sulentic also served as Dr. Tom Osborne’s teaching assistant for the courses Coaching Football and Sport and the American University.

At Colorado, she worked with the sports of football, women’s basketball, and men’s and women’s ski.  She also worked in the areas of initial and continuing eligibility.

After graduating from law school, Kathy worked as an associate in the Boston office of Greenberg Traurig, LLP.

She has a BA from the University of Northern Iowa, an MA from the University of Nebraska-Lincoln, and graduated Summa Cum Laude from Roger Williams University School of Law and was a member of their Law Review.

Monday, April 14, 2014
 
The latest on the Aaron Hernandez, Osca Pistorius and Ed O'Bannon cases

I have a new Legal Notebook for Sports Illustrated and I update and make predictions in the Aaron Hernandez, Oscar Pistorius and Ed O'Bannon cases. 

Here are a couple of excerpts:
 
1. Proving joint venture will be challenging. Prosecutors allege Wallace and Ortiz accompanied Hernandez the night Lloyd was murdered, and claim there are text messages revealing Hernandez's intent to kill Lloyd. Wallace and Ortiz being at the murder scene or even encouraging Hernandez will not be enough. Prosecutors must prove that Wallace and Ortiz shared the intent of Hernandez -- the alleged trigger man -- to kill Lloyd. In previous cases, Massachusetts courts have found evidence of "shared intent" through a joint venturer being aware the murderer was armed, making no attempt to disassociate himself the murderer or covering up the crime. But courts in the state have also found that an alleged joint venturer can lack a shared intent if he was intoxicated or high on drugs. There is a strong possibility that Hernandez, Ortiz and Wallace were all high on drugs the night of Lloyd's murder. If they were high, expect attorneys for Ortiz and Wallace to argue their clients lacked the legal capacity to share Hernandez's intent.

* * *

5. The people with the most at stake in the legal war on the NCAA? Star athletes in middle school who may be entering college at around the time all legal appeals have been heard. 

To read the rest, click here.

Sunday, April 13, 2014
 
The best sports deal ever

That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details and the negotiations leading to the original deal. Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).

Thursday, April 10, 2014
 
Breaking Down The Oscar Pistorius Trial on the Nancy Grace show

I was a guest last night on Nancy Grace's show on Headline News (HLN) to talk about the Oscar Pistorius trial, and specifically about whether it was wise for prosecutors to show an old video of Oscar Pistorius shooting a watermelon and then joking about how it was like shooting a zombie's brain.

Nancy thought it was a good idea because the video shows Pistorius to be insensitive and callous, unlike how he has seemed during his trial.

I disagreed, especially since a judge and not a jury will be deciding his fate, and a judge is less likely to be moved by inflammatory videos. To me, the video seems irrelevant as to whether Pistorius intentionally killed his girlfriend and may prove to be a distraction from the real evidence. I also think the video may be perceived as insensitive, since it was raised in the context of Pistorius shooting his girlfriend's brain.

You can decide.  Here's the video:


Wednesday, April 09, 2014
 
Two sides speech in sports

This whole thing is interesting and ironic for what it says about sport and speech. Orioles outfielder Adam Jones harshly criticized fans who run onto the field, suggesting first that players should be able to take a shot at kicking the fans while wearing spikes, then suggesting fines of $ 10,000 plus. What I liked about Jones' opinion were the following comments:

Cuss us out, let us have it, give us a ribbing, remind us of our last five at-bats if they've been terrible, please do, but just stay off the field because you're just causing a problem that doesn't need to be caused.

So Jones just made the best defense of the fullest scope of cheering speech.

Of course, MLB is "reviewing" Jones' comments, perhaps for some punishment. Meaning that while Jones is arguing for a broad vision of fan expression, MLB is pushing a much narrower vision of athlete expression.

Tuesday, April 08, 2014
 
4th Annual Sports Law CLE April 24 hosted by Cozen O'Connor

Sports attorney Steven Silton of Cozen O'Connor and his colleagues have put together an outstanding CLE for sports law rookies and veterans to be held on Thursday, April 24 at the JW Marriott Marquis Hotel in Miami.

Here are some highlights:

Thursday, April 24, 2014
8:00am - 5:30pm


General Admission: $199

NFLPA Licensed Agents: $129

Student: $99
Sport Administrators: Free


___________________________________________________

This program will be submitted for 7 CLE credits
in the jurisdiction of all attendees
_________________________________________________________________

This unique program represents the intersection of issues in professional and amateur sports, media and the law. Join business leaders and sports industry professionals for an informative seminar that examines and analyzes current issues affecting the sports industry today.


Confirmed Panelists:
Super-Agent Drew Rosenhaus
Miami Heat Vice President, Associate General Counsel Eve Wright
Miami Dolphins General Counsel Adam Zissman
Minnesota Vikings General Counsel and Chief Administrative Officer Kevin Warren
Vice President and General Counsel of the Minnesota Wild Steven Weinreich
Tampa Bay Lightning General Counsel Danna Haydar
NFL Agent Kelli Masters
ESPN NFL Business Analyst Andrew Brandt


Topics Include:
Locker Room Culture and Employment Law
Front Office Perspective
Stadium Construction and Financing
Women in Sports
Concussion Lawsuit


For the full agenda, click here. For info on attending, click here.

 
NYU Sports Law Colloquium April 15



Third Annual NYU Sports Law Colloquium
Tuesday April 15, 2014, 10:00am 
NYU School of Law, Lester Pollack Colloquium Room
245 Sullivan Street
New York, NY  

The Sports Law Committee, in association with the Intellectual Property and Entertainment Law Society at New York University School of Law, cordially invite you to a day-long event featuring distinguished panels and discussions on today’s prominent legal issues in the world of sports.

***1.5 Ethics and 3 Areas of Professional Practice CLE Credits Available***

Event Schedule: 

                  10:00 a.m.     The Ethics of the A-Rod Case (1.5 Ethics CLE Credits)
                   Wayne McDonell, Professor of Sports Management, NYU
                   Michael O’Keefe, New York Daily News
                   Eugene Orza, Former Chief Operating Officer, MLBPA
                   Anita Marks, NBC Sports Radio (Moderator)
                   
11:30 a.m.   The Future of the NCAA
                    Marc Edelman, Associate Professor of Law, Baruch College
                    Craig Esherick, Professor of Sport Management, George Mason
                    Len DeLuca, President, Len DeLuca and Associates
                    Charles Grantham, Former Director, NBAPA
                    Donald McPherson, NCAA Football Analyst
                    Robert Boland, Academic Chair of Sport Management, NYU
   
12:45 p.m.   LUNCH

1:30 p.m.                The Anatomy of a Sponsorship Deal
                    John Maguire, SVP Corporate Partnerships, NY Giants
                    Joe Nahra, Legal and Business Affairs, CAA
                    Christina Song, VP of Legal and Business Affairs, MSG

3:00 p.m.   Hypocrisy in Intercollegiate Athletics and   Dishonesty in Academia
                  Michael Hausfeld, Chairman, Hausfeld, LLP

For more information contact Sports Law Committee Co-Chairs Steven Couper (spc318@nyu.edu) or Adam Dale (aid233@nyu.edu)

Monday, April 07, 2014
 
Is a seven-inning game still baseball?

This is an incredibly interesting idea. But is nine innings an "essential" rule of baseball, such that it no longer is "baseball" if games are only seven innings? I don't think so, but I'm interested in other thoughts.

 
President Obama v. David Ortiz? Right of Publicity, the First Amendment and Selfies

Last week, David Ortiz and his Red Sox teammates visited the White House in honor of the Sox winning the 2013 World Series.  While there, Ortiz asked President Obama for a selfie, which the President agreed to do.  The selfie was re-tweeted countless times.  Here's the photo:


Unbeknownst to the President, Ortiz had recently signed an endorsement contract with Samsung -- makers of the phone he used for the selife -- to promote the product and Samsung.  Samsung aggressively promoted Ortiz's selfie on Twitter and noted it was taken on one of its phones.  The White House is not happy about the arguable deception, fearing that it could be mistaken as an endorsement by President Obama of Samsung.

I spoke with Julie Loncich of ABC News's Boston affiliate, WCVB, last night about the role of right of publicity and the First Amendment.  The President, like all Americans, has a right of publicity, which generally protects our image and likeness from being used without permission (see Ed O'Bannon v. NCAA).  The First Amendment, however, trumps the right of publicity when persons are covered in the news.  You could argue that anything the President of the United States does counts as "news," including when he poses for a selfie with a legendary Boston athlete. Here's the video of my interview:


 
Concussion Lawsuit Presentation at DRI Product Liability Meeting

DRI, the defense trial bar, provides some great programming throughout the year, and occasionally will put on CLE in the world of sports law.  One example will be this Wednesday at 1:30pm during DRI's Product Liability Seminar at the Biltmore in Phoenix.  I will be presenting analysis on the various concussion lawsuits that we have seen in recent years, and in particular, the NFL MDL in Philadelphia, and the Arrington case in Chicago.  In an interesting twist, I will be presenting with a non-lawyer: former NFL offensive lineman, Scott Peters.  Following the update on the concussion lawsuits, I will conduct a brief mock deposition of Scott as if he were a plaintiff in one of the concussion lawsuits.  Details and registration for the meeting can be found here

Sunday, April 06, 2014
 
Unions, incentives, and change

Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union (the vote is scheduled for April 25, although the votes would be impounded if Northwestern appeals the decision of the regional director to the full National Labor Relations Board). And at least a few players seem inclined to vote against it, at least based on quotations in the story.

What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, etc.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.

Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.

I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student how many girlfriends he can have?

Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.