Sports Law Blog
All things legal relating
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Tuesday, February 28, 2017
 
Rugby and the Infield Fly Rule

I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.

As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.

In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."

But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.

First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.

But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.

Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.

Wednesday, February 22, 2017
 
How To Pay College Athletes Without Taxing Their Scholarships (UPDATED LINK)

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.

Update: The symposium was great, and three Sports Law Blog contributors were there....

Warren Zola, Michael McCann, Jimmy Golen


 
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.

FEBRUARY 22ND
6:15 PM -8:30 PM
LOWDEN HALL
FORMAT: PANEL DISCUSSION FOLLOWED BY NETWORKING HOUR
ATTIRE: BUSINESS CASUAL
OPEN BAR, FOOD

Featuring:

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
A.L. (Lorry) Spitzer, Partner, 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!