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Thursday, December 12, 2013
Sports rules and essentialism
Travis Waldron at Think Progress has some good thoughts on the decision by MLB to outlaw home-plate collisions by prohibiting runners from running through the catcher and prohibiting catchers from blocking the plate. Essentially, home plate now is treated the same way as every other base--fielders can block the plate only if making a play on the ball and runners must slide. The move is driven by safety considerations--not only concussions, but also injuries such as the broken leg that Giants catcher Buster Posey suffered in 2011 or the infamous collision between Pete Rose and Ray Fosse that changed (for the worse) Fosse's career).
Not surprisingly, this has caused handwringing among those who insist this will change the very nature of the game, including some who liken it to eliminating tackling in football. Waldron has great responses to all of these arguments. And his responses call attention to two analytical ideas in thinking about sports rules and whether and how to change sports rules to make games safer.
One is essentialism--which aspects of a sport are "essential" to the sport, such that if you remove or alter them, you are changing the nature of the game. Many of you will remember this as one point of departure in PGA v. Martin, where the Court divided on whether walking the course was part of what made golf golf. My view is that few rules or plays are ever so essential to a game; most are simply the way things always have been done and can be changed without altering "the game." Certainly tackling is essential to tackle (as opposed to touch or flag) football. But home-plate collisions are not essential to baseball; if they are, one would have to explain why similar collisions are banned at the other three bases.
Second is distinguishing what we can control from what we cannot control in the search for increased safety. Waldron highlights the fact that the most common cause of concussions in catchers is foul tips, which leads to the argument that the next move is to ban foul balls. That's stupid, of course. We can't ban foul balls because we can't control foul balls, which are an incidental rather than intentional part of the game. No batter tries to foul a ball off the catcher's head and no pitcher tries to get the batter to foul the ball off the catcher's head; it just happens sometimes. But catchers do try to block home plate and runners do try to barrel catchers over (see Rose, who has had some typically inane things to say about this). It thus is possible to prohibit the conduct by both sides that leads to these collisions.
Tuesday, December 10, 2013
College football and the Brandenburg Concerto
[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]
Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.
So what, you ask? Well because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.
So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy Brandenburg v. Ohio and the requirement that the lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?
Understanding the FANS Act
A piece of sports-related legislation was proposed in the U.S. House of Representatives and Senate last month: the Furthering Access and Networks for Sports (FANS) Act. The bill was first introduced in the House by Rep. Brian Higgins (D-NY), with Senators Richard Blumenthal (D-CT) and John McCain (R-AZ) following suit in the Senate a week later (this is the second piece of legislation implicating professional sports proposed by Senator McCain this year). The FANS Act features two main sections, the first dealing with blackouts of televised sporting events, and the second with baseball's antitrust exemption.
The first part of the FANS Act is intended to reduce the frequency with which live sporting events are blacked out on local television networks and over the Internet. While all four major U.S. professional sports leagues engage in blackouts to some extent, the NFL's policies have generally drawn the most criticism. Traditionally, the NFL mandated that a game be blacked out in the local television market of the home team unless the stadium was sold out at least 48 hours in advance. The NFL modified this restriction last year in the face of mounting pressure, now allowing games to be aired locally when as few as 85% of the tickets have been sold. Meanwhile, the NBA, NHL, and MLB primarily utilize blackouts in connection with their pay-per-view cable (NBA Full Court, NHL Center Ice, and MLB Extra Innings) and Internet packages (e.g., MLB.tv), through which viewers purchase the right to watch every league game. These packages typically prevent fans from watching any game on a pay-per-view basis if it is being broadcast locally on either network television or via a regional sports network (RSN). The NHL's and MLB's blackout rules are the subject of pending antitrust litigation in the Southern District of New York.
The FANS Act attempts to force the leagues to modify their blackout policies by retracting the Sports Broadcasting Act of 1961 (SBA) for any league that engages in unauthorized blackouts. The SBA currently provides a limited antitrust exemption to the four major professional sports leagues allowing them to collectively sell the broadcast rights to their games to over-the-air, broadcast networks (i.e., NBC, ABC, CBS, and Fox). The SBA was passed at the behest of the NFL after the league's plan to sell a package of league games to CBS was struck down by a federal court in 1961. The SBA does not apply to the leagues' contracts with cable stations, however, which courts have held do not fall within the SBA's protection of "sponsored telecasting." See, e.g., Shaw v. Dallas Cowboys Football Club, 172 F.3d 299 (3rd Cir. 1999).
Section 3(a) of the FANS Act would eliminate the SBA's antitrust immunity for any league that allows its games to be blacked out on network television. Meanwhile, section 3(b) of the bill revises a passage in the SBA authorizing blackouts of a team's home games in its local market. These changes would have by far the greatest impact on the NFL, which is not only the biggest beneficiary of the SBA -- given its multi-billion dollar deals with NBC, CBS, and Fox -- but is also the only league that blacks out its network broadcasts in local markets based on the home team's ticket sales. Thus, these provisions of the FANS Act appear to be intended to motivate the NFL to continue to relax its blackout restrictions. As Senator Blumenthal explained, "they know the legislation is looming if they engage in blackouts. It’s a not-so-subtle pressure.”
Baseball's Antitrust Exemption
While the blackout restrictions in the FANS Act are fairly complex, the second half of the bill is perhaps even more difficult to decipher. It purports to eliminate baseball's historic exemption from antitrust law, at least as applied to MLB (the bill appears to leave the immunity in place for the minor leagues, as discussed below). In particular, the bill would amend the Curt Flood Act of 1998 (CFA), which repealed baseball's antitrust exemption simply in one respect: by allowing current major league players to file antitrust lawsuits against MLB.
The FANS Act proposes to further limit baseball's antitrust immunity by revising a series of passages in the CFA that were intended to confirm that the 1998 legislation did not alter baseball's antitrust status in any respect other than for suits filed by MLB players. For example, the FANS Act would amend section (a) of the CFA as follows (the
(a) Subject to subsections (b) through (d), the conduct, acts, practices, or agreements of persons in the business of organized professional major league baseballThis revision would appear to largely revoke baseball's antitrust exemption by broadly exposing the activities of MLB to antitrust law (as is the case for the NFL, NBA, and NHL). However, subsequent language in the FANS Act makes the intended effect of this modification less clear. In particular, the bill would also amend section (b) of the CFA as follows (subsections (b)(1) and (b)(2), unaffected by the FANS Act, would preserve baseball's antitrust immunity for the minor leagues):
(b) No court shall rely on the enactment of this section as a basis for changing the application of the antitrust laws to any conduct, acts, practices, or agreements other than those set forth in subsection (a). This section does not create, permit or imply a cause of action by which to challenge under the antitrust laws, or otherwise apply the antitrust laws toBy retaining the language in section (b)(3) of the CFA relating to expansion, relocation, and franchise ownership, this portion of the FANS Act would seemingly maintain MLB's exemption for those critical areas, while simply retracting the immunity for broadcasting and other merchandise licensing purposes. Thus, it is unclear whether the bill's sponsors intend to broadly revoke MLB's antitrust immunity (as suggested by their revision of section (a) of the CFA), or if they only seek to apply the antitrust laws to MLB's broadcasting and other licensing policies (as seemingly suggested by their revision of section (b)(3)). Indeed, both sections (a) and (b) of the CFA incorporate one another by reference, so it is unclear which of the two provisions would be given priority should the FANS Act be enacted.
I suspect that the drafters of the FANS Act intend for the bill to broadly revoke MLB's antitrust immunity. Not only does the proposed revision to section (a) of the CFA appear to reflect such an intent, but the preamble to the bill states in part that the FANS Act would "require the application of the antitrust laws to Major League Baseball." If that is the case, however, then it would be cleaner and clearer to simply excise subsection (b)(3) of the CFA in its entirety.
The drafters may have opted to retain the remaining language in subsection (b)(3) of the CFA in order to further protect minor league baseball, and specifically its expansion, relocation, and ownership restrictions. Elsewhere, the FANS Act leaves intact subsections (b)(1) and (b)(2) of the CFA, which explicitly state that the antitrust laws do not apply to minor league baseball or its relationship with MLB. These sections were originally inserted into the CFA following a massive lobbying campaign orchestrated by the minor leagues, which feared that the 1998 legislation would disrupt their relationship with MLB. The drafters of the FANS Act may have thus left the remaining portion of subsection (b)(3) in place to placate the minor league lobby. However, if that was the intent of the legislators, it would be much more effective if they inserted some language into subsection (b)(3) clarifying that it only applies to the minor leagues.
Alternatively, it is possible that the FANS Act is only intended to address the blackout and related licensing issues, and thus that the second half of the bill only seeks to expose MLB's broadcasting and merchandising practices to antitrust law. If this is the case, then the drafters could accomplish this goal much more clearly by simply stating that baseball's antitrust exemption does not apply to MLB's broadcasting or other intellectual property licensing activities. Ironically, MLB did not even assert its antitrust exemption in the pending litigation challenging its blackout policies in the Southern District of New York, potentially rendering the current bill unnecessary should its intended effect be more narrow. Indeed, the only reported court decision on record, involving a dispute surrounding the Houston Astros' local radio broadcast agreements, held that the exemption does not shield baseball's broadcasting activities. Henderson Broadcasting Corp. v. Houston Sports Ass’n, 541 F. Supp. 263 (S.D. Tex. 1982).
Regardless of the legislators' intent, as currently drafted the FANS Act's treatment of baseball's antitrust exemption is unclear. I would expect this portion of the bill to be fine-tuned considerably should it advance through the legislative process.
Prospects for Passage
Passage of the FANS Act does not appear to be particularly likely, as the four leagues will presumably lobby vigorously against the bill. That having been said, of its two parts, the blackout section of the FANS Act would seem to have a stronger chance at passage than does the baseball antitrust exemption portion of the bill. While the leagues can be expected to fight the blackout provision, that lobbying effort could be offset to some degree by the broadcast networks themselves. Indeed, backers of the bill reportedly consulted with various television networks when drafting the legislation. The value of CBS and Fox's broadcast packages with the NFL would rise (even if only incrementally) if the networks were assured of being able to broadcast each home team's game in its local market regardless of the number of tickets sold. That fact, along with general fan discontent with blackouts, could potentially enable supporters of the FANS Act to overcome the leagues' inevitable lobbying campaign against this portion of the bill.
Meanwhile, the legislation's attempted revocation of MLB's antitrust exemption appears less likely to pass. Unlike with the blackout issue, there is no obvious, well organized constituency to counterbalance MLB's likely lobbying efforts against this portion of the FANS Act. Moreover, while baseball's antitrust exemption is certainly anomalous, there is no immediately pressing, nationwide public concern that will be remedied by its repeal. Thus, barring some unforeseen development, it appears unlikely that the FANS Act will mark the end of baseball's nearly century old antitrust immunity.
Sunday, December 08, 2013
Legal Aftermath of Jameis Winston not being charged with rape
Last week, Florida State quarterback Jameis Winston was cleared in a controversial rape investigation. I wrote about the legal aftermath in an analysis for Sports Illustrated and also spoke with Tom Goldman of NPR's Morning Edition. In addition, Maggie Gray, B.J. Schecter and I discussed the news in a video for SI.com:
Saturday, December 07, 2013
Breaking News from the San Jose v. MLB Lawsuit
Ahead of next Friday's case management conference, the parties in the San Jose v. MLB lawsuit filed a joint case management statement last night (for earlier coverage of the suit click here). While the parties laid out their positions on the strategic issues I discussed last month, the biggest piece of news coming out of the filing is that MLB now alleges it has already formally rejected the Oakland Athletics' proposed move to San Jose. This is the first time that MLB has acknowledged issuing a decision on the matter.
In particular, MLB states in the filing (available here) that Commissioner Bud Selig sent the Athletics a letter on June 17, 2013 (one day before San Jose filed its lawsuit), notifying the team "that he was not satisfied with the club’s relocation proposal." Consequently, MLB contends in the filing that the city's sole remaining claim for relief is rendered moot, because the league provided a decision within the two-year window allegedly anticipated by the city when it entered into the land option agreement with the Athletics, and thus did not wrongfully interfere with the agreement by unduly delaying its resolution of the matter.
Unfortunately, the court filing does not include a copy of the June 17th letter, so it is unclear how definitively Commissioner Selig rejected the proposed relocation. It is of course possible, and perhaps even likely, that MLB would reconsider the move in the future. Meanwhile, MLB states in the filing that it is waiting for the city to agree to an appropriate confidentiality order before supplying it with a copy of the communication, suggesting that the letter will not see the public light of day for quite some time (if ever). In any event, this is the first indication that MLB has reached a long-awaited decision in its more than four-year consideration of Oakland's proposed move to San Jose.
With respect to the issues to be discussed before Judge Whyte next week, both San Jose and MLB urged the court to retain its supplemental jurisdiction over the remaining state law claim, on the basis that the judge is already familiar with the issues in dispute in the case. However, while the city argues the court should allow discovery to commence immediately for the claim, MLB asks the court to temporarily stay the claim in deference to the Stand for San Jose, et al., v. City of San Jose litigation proceeding in California state court. In that case, the plaintiffs are challenging the legality of the city's land option contract with the Athletics on several grounds (both environmental and procedural). MLB alleges that should the option agreement be declared invalid in the Stand for San Jose litigation, then the city's sole remaining ground for relief in the suit versus MLB (alleging that MLB wrongfully interfered with the option agreement) will be rendered moot.
Meanwhile, San Jose predictably encouraged the court to immediately certify the antitrust issues in the case for appeal pursuant to Federal Rule of Civil Procedure 54(b), while MLB argued that an immediate appeal was unwarranted. MLB contended that bifurcating the litigation is unwarranted because the remaining state law claim in the case arises out of the same factual relationship as the dismissed claims, and thus that they should all be appealed together upon completion of the district court proceedings.
While it will be interesting to see how Judge Whyte elects to proceed with the remaining claims following the hearing next Friday, the biggest news coming out of yesterday's filing is undoubtedly that MLB now alleges that it has already ruled on Oakland's proposed move to San Jose.
Thursday, December 05, 2013
Fan warning cards
Deadspin reports, with photo.
Assuming this is real, it raises every issue I have ever written about with respect to fan expression. Any "NBA Fan Code of Conduct" must comport with the First Amendment, at least at publicly funded or publicly owned arenas. Since little fan speech actually runs afoul of any known First Amendment categories, such an eviction would not satisfy constitutional scrutiny.
Wednesday, November 27, 2013
Football and limiting rules
In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.
But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty. In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.
Read more »
Monday, November 25, 2013
NHL Concussion Litigation
Will Leeman et al v. NHL threaten the NHL? My take for SI.com.
Freakonomics and sports rules
The new Freakonomics podcast discusses "spontaneous order," illustrating it with discussion of the rules and enforcement regime of ultimate frisbee, which is played (even competitively) without officials. Fun discussion.
Saturday, November 23, 2013
Update on the San Jose v. MLB Lawsuit
or earlier Sports Law Blog coverage of San Jose's suit and the ongoing dispute regarding the proposed relocation of the Oakland A's, click here.) As Howard Wasserman noted at the time, though, it was unclear whether San Jose could in fact immediately appeal the decision. Because the court's opinion was largely premised on baseball's well-established antitrust exemption, Judge Whyte's decision did not present a "substantial ground for difference of opinion" as required under 28 U.S.C. 1292(b), and as a result it did not appear that San Jose could immediately pursue an interlocutory appeal in the case. Indeed, nearly than a month and a half later the lawsuit is still pending in the Northern District of California.
However, Judge Whyte has signaled that he may be willing to allow the city to appeal the decision shortly. In a hearing scheduled for December 13th, the judge has asked the parties to be prepared to discuss two primary issues: (1) whether the court should retain supplemental jurisdiction of the remaining state law claims in light of the fact that the federal claim in the case was dismissed, and (2) whether a final judgment should be entered with regards to the previously dismissed claims pursuant to Federal Rule of Civil Procedure 54(b), a provision that allows courts to enter final judgment in a case once some, but not all, of the claims in the suit have been resolved. Under Rule 54(b), the court must determine that there is "no just reason for delay" in entering final judgment for the dismissed claims.
Presumably, San Jose will seek to persuade the court to retain jurisdiction over the remaining state law claims -- so that it can begin to pursue discovery in the case in an attempt to obtain some leverage over MLB -- while at the same time urging Judge Whyte to enter a final judgment on the dismissed claims so that the city can appeal them to the Ninth Circuit Court of Appeals. Meanwhile, MLB will likely contend that the court should not retain supplemental jurisdiction over the remaining state law claims, but instead dismiss them outright. However, should the court opt to retain jurisdiction over the state law claims, I would expect MLB to argue that it should then refrain from issuing a final judgment under Rule 54(b), in hopes of avoiding the prospect of simultaneously litigating the case on two separate tracks.
Assuming the court decides to enter a final judgment -- either under Rule 54(b), or following the dismissal of the remaining state law claims -- San Jose's immediate prospects on appeal do not appear to be particularly strong, given that the Ninth Circuit has previously affirmed the dismissal of a suit raising similar franchise location issues under baseball's antitrust immunity. Portland Baseball Club, Inc. v. Kuhn, 491 F.2d 1101 (9th Cir. 1974). Nevertheless, a pending appeal would continue to give the city some leverage over MLB in any negotiations regarding the A's proposed move to San Jose. Perhaps more importantly, pursuing an immediate appeal would also expedite the city's timetable for a potential Supreme Court appeal. The prospect of the Supreme Court reconsidering baseball's prized antitrust immunity would undoubtedly be a significant cause for concern for MLB, and could finally convince the league to approve the A's relocation.
Friday, November 22, 2013
RIP: Michael Weiner
Weiner, the MLB players' union executive director, took over in December of 2009 following the departure of Donald Fehr. A fierce labor attorney, Weiner displayed the ability to advocate for the players while swiftly earning the respect of the owners, Commissioner Bud Selig and all involved in the business of baseball.
Many of us were lucky enough to have met Michael, serving on a panel at a law school conference or shaking his hand at the annual Sports Law Association's conference. For those of you who didn't have the benefit of meeting or hearing Michael speak, spend some time researching what he accomplished over his all too short tenure with the union. And when first pitch comes around this spring, please don't forget to tip your cap....
Thursday, November 21, 2013
On rules and sport
Great commentary from Neil Buchanan at Dorf on Law on the arbitrary nature of the rules of sport, with a special focus on whether football is still "football" under the new player-safety rules.
American Needle's Lesson for the New Jersey Sports Wagering Case
News broke late last Friday that the U.S. Court of Appeals for the Third Circuit had denied New Jersey's request for an en banc hearing in the on-going sporting wagering lawsuit. After losing at both the District Court and Court of Appeals level, the state is now down to its last option - the U.S. Supreme Court. Previous statements from the New Jersey side indicated that Gov. Chris Christie is inclined to take the case to the Supreme Court. If so, the state will file a petition for writ of certiorari within the next 90 days. Like all petitions, the chances that the Supreme Court opts to take the case are slim.
If New Jersey does indeed seek review by the Supreme Court, the conventional wisdom is that the sports league plaintiff quintet (NCAA, NBA, NFL, NHL, and MLB) would oppose review by SCOTUS given that the leagues have already prevailed twice earlier. Such opposition could manifest itself in one of two ways: (i) by filing a motion in opposition to New Jersey's petition or (ii) by doing nothing. However, as we learned in the American Needle v. NFL, et al case several years ago, there is a third option - the sports leagues could join New Jersey in seeking review by the Supreme Court.
Recall the American Needle case single entity antitrust case and its procedural history. The NFL and its co-defendants prevailed at both the District Court and Seventh Circuit Court of Appeals before moving to the Supreme Court in 2010. Nevertheless, the NFL decided to request review at the highest level. In relevant part, here is what the league wrote in their pleading -
"The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits."
In other words, the NFL desired the Supreme Court to memorialize their earlier court victories. With Minnesota and California promulgating sports betting-related legislation and watching the New Jersey case closely, it is possible that the NCAA-NBA-NFL-NHL-MLB plaintiffs may opt to follow the same appellate strategy now. While the Third Circuit's decision regarding PASPA constitutionality is persuasive nationwide, only a Supreme Court decision would be binding in every circuit.
Instances of a prevailing party seeking further review of a case are exceedingly rare. Nevertheless, given the recent history of it happening in another high-profile case involving one of the same litigants, it is a (remote) possibility worth being aware of.
Thursday, November 14, 2013
University of Chicago 4th Annual Sports Symposium
Fourth Annual Sports Symposium, organized by the School's Media, Entertainment & Sports Group (MESG). Panelists throughout the day will be coming in from the Chicago Bulls, Chicago Fire, Chicago Sky, Cleveland Browns, St. Louis Cardinals, Boston Red Sox, Baltimore Orioles, Gatorade, Intersport, and the Chicago Cubs. Panel topics include: navigating front office management of professional teams, the increasing role of analytics in sport, and the growth of digital marketing.
I will be moderating the legal panel entitled: "The Impact of Increased Litigation in Sports." We anticipate covering a number of topics from the concussion lawsuits to the student-athlete likeness litigation to doping. Our panelists follow:
Tuesday, November 12, 2013
Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito?
Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar. Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team. We're pleased to have Joe's contribution. He also authored the Sports Law Blog post titled What if Rick Pitino Had Been A Woman? in 2009. -- Mike McCann
It was interesting to watch NFLPA head DeMaurice Smith tell ESPN’s Stuart Scott before Monday night’s Dolphins-Buccaneers game that the Players Association could adequately represent the interests of both Jonathan Martin and Richie Incognito without a conflict of interest. NFL Commissioner Roger Goodell likes to wield the league’s Personal Conduct policy like the sword of Damocles and based on the limited information that has been made public to date, both players could be subject to discipline. Under general labor law principles, it is conceivable that the NFLPA could claim to represent both players. As the designated bargaining unit for the players, the union has the duty of fair representation. A breach of the duty of fair representation occurs when a union’s conduct toward a member is arbitrary, discriminatory, or in bad faith. I am assuming that this is the lens through which the NFLPA is viewing their role.
However, DeMaurice Smith is a lawyer, and I am guessing that many at the NFLPA are lawyers. As such, their conduct should be governed by conflict rules consistent with Model Rule of Professional Conduct 1.7, which states, “… a lawyer shall not represent a client if the representation involves a conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” As this matter progresses, how could both players be assured that the union could aggressively pursue a course of action to seek justice for an aggrieved player, yet vigorously defend the interests of an accused player during an investigation, or a punished player through the appeals process? Even with the consent of both Martin and Incognito, I do not see how the NFLPA jumps over the hurdle in the exception provision of the Rule that permits representation if, “ the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal…”
One possible solution would be to have the NFLPA appoint an experienced union leader from another sport to represent the interest of either Martin or Incognito in the very limited scope of matters pertaining to or arising out of the events in this case. Don Fehr would seem to be the likely choice. This way, the NFLPA avoids any hint of bias and both Jonathan Martin and Richie Incognito are assured that they will receive the full scope of the rights and benefits they are entitled to under their Collective Bargaining Agreement.
Joseph Kohm, Jr.
Monday, November 11, 2013
Would You Join a College Players' Association?
The legal aftermath of Judge Wilken's certification order in O'Bannon v. NCAA takes a new twist with formation efforts for a college players' trade association. Here's my take for Sports Illustrated.
Sunday, November 10, 2013
Partial Certification in O'Bannon v. NCAA
I have a new article for SI.com on Judge Wilken partially certifying the class action lawsuit brought by Ed O'Bannon, Sam Keller and other former and current student-athletes. Short take: her order is great news for future and current student-athletes, not so great news for former ones.
Thursday, November 07, 2013
ASU 4th Annual Conference on Sports and Entertainment Law
I am looking forward to returning to speak at The Sandra Day O’Connor College of Law at Arizona State University for its 4th Annual Conference on Sports and Entertainment Law this Saturday, November 9th, 2013 from 9am – 4pm, followed by a reception for all attendees and speakers. The Conference will take place at Arizona State University Memorial Union, Arizona Ballroom 221 (2nd Floor), 1290 S. Normal Ave., Tempe, AZ, 85287. CLE credit is available for attorneys, including Ethics credit. The Keynote Presentation will be given by Bud Selig, the Commissioner for Major League Baseball.
Panel topics include:
· Gregg Goldman, 29th Drive
Its always a great conference, and looking forward to having fellow Sports Law Blog contributors joining me this year.
Register at this link.
Confronting Locker Room Bullying with Physical Violence
An interesting development in Incognito-gate yesterday, with stories that Miami Dolphins GM Jeff Ireland told Jonathan Martin's agent that Martin should punch his tormentor in the face.
One downside of punching someone in the head, of course, is that one has committed a tort: battery. Can a person use force to defend themselves from bullying? In my article Defense Against Outrage, I explore this very question. I ask whether, if the bully's conduct rises to the level of extreme or outrageous conduct, a person can use physical force in "self-defense" against the emotional damage bullying can do.
Some have argued that Richie Incognito's bullying, pervasive and offensive, would rise to the level of IIED. Would that have created a privilege to use physical violence in self-defense?
Monday, October 28, 2013
Sports Illustrated and UNH Law Town Hall on O'Bannon v. NCAA and the Future of College Sports
The University of New Hampshire School of Law and Sports Illustrated proudly invite you to attend A Town Hall on O'Bannon v. NCAA on Tuesday, November 5th from 6 p.m. to 7:30 p.m. in Room 282, followed by a reception in the Franklin Pierce Center for Intellectual Property.
The Town Hall will examine how a class action lawsuit against the NCAA could radically change college sports as we know it. Through legal arguments sounding in intellectual property and antitrust, Ed O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures. The Town Hall will also consider related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act. Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.
The Town Hall will feature some of the most influential and insightful people in college sports:
Come for the enthusiastic discussion and debate; stay for the hors d'œuvre, beverages, and networking opportunities. We hope to see you there! Please RSVP to firstname.lastname@example.org.
* UNH Law is about an hour drive from Boston and directions can be found here.
** Portions of the town hall will be aired on SI Now, Sports Illustrated's Daily Talk Show. Other portions will be shown through video provided by UNH Law's Sports and Entertainment Law Institute.