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Wednesday, October 18, 2017
NEW LAW REVIEW ARTICLE -- A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis

As many of you know, on September 30, 2015, the United States Court of Appeals for the Ninth Circuit held in O’Bannon v. National Collegiate Athletic Association that the National Collegiate Athletic Association violated Section 1 of the Sherman Act by prohibiting member colleges from offering their athletes compensation equal to the full cost of their college attendance.  

This case opened up the door for a subsequent lawsuit -- Jenkins v. National Collegiate Athletic Association, which  attempts to challenge a broader range of restraints on big-time college athlete pay under antitrust laws.  The plaintiffs' lawyers in the Jenkins lawsuit include Jeffrey Kessler, David Greenspan, and other members of the same legal team that regularly represent NFL and NBA players in their labor and antitrust disputes.

I have just completed the final draft of my newest law review article, entitled "A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis."  This article looks carefully at the Jenkins litigation, as well as the steps that plaintiffs' lawyers will need to take to secure broader financial rights for college athletes.  Among other things, this article looks at the O'Bannon legal teams' failure to show that paying college athletes will not harm consumer demand for big-time college sports and how the legal team in Jenkins may be able to better address that issue.

My newest article, which derives from a presentation I gave last year at LSU Law School, will appear in the upcoming edition of Louisiana Law Review.  It will also available for free download here.

Tuesday, October 17, 2017
NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Thursday, September 21, 2017
Decision Time in College Athletics: Are College Athletes Students or Employees?

Deservedly, college athletics has been under assault the past several years. Most of the criticism has been directed at calling out the hypocrisy of this multi-billion-dollar industry in allowing all associated with it the opportunity to extract every penny they can, except the college athletes producing the product.

Lawsuits, boycotts, unionization efforts, and advocacy groups call for greater compensation—be it salaried or merely the rights of athletes to control their own names, images, and likenesses. And while the compensation issue isn’t going away anytime soon (see O’Bannon v NCAA and Jenkins v NCAA) another more disturbing debate is now the topic du jour this year—NCAA transfer rules. The spotlight is on these rules as word leaked that the NCAA is considering modifying the existing guidelines for transfers.

The NCAA places significant restrictions on the ability of college athletes to move from school to school. Once a student signs a National Letter of Intent to attend an institution, they are bound to that school. This contract of adhesion is deeply flawed for the students—who can neither negotiate the terms nor, for the most part, compete without signing one. And while this commitment is something schools and coaches who enforce these contracts hold in high regard, it is not reciprocal. Coaches make promises to recruits about their loyalty to an institution all the time and then, even under contract, jump to other schools deemed to offer better career prospects.

There is no shame in moving from one opportunity to another—we all do it. More money, higher profile, it’s part of the “American dream.” However, if a student wants to leave one school for another, coaches and college administrators are swift and vocal in their claims of betrayal and breach of contract. And, let’s be clear, in the end the vitriol against students’ transferring is based not on some version of loyalty but on the ability of management to control labor’s movements.

In business, there’s a simple way to ensure employees don’t move around in ways that destabilize a company; employment contracts include “non-compete” clauses all the time. “But wait” you say, “college athletes (at least according to the NLRB’s flawed decision) aren’t employees.” EXACTLY, that’s the point.  If college athletes aren’t employees then they should be able to transfer without restrictions. If they are employees, then they have a right to unionize and negotiate better terms of employment.

The NCAA’s response is always “but we’re maintain the time-honored tradition of amateurism.” However, other than clinging to this antiquated definition of amateurism which the evolution of college athletics has demolished, there is no logical rationale for this dichotomy. Either freedom of movement should be allowed, or these restrictions must be balanced with some other benefit—like compensation in some form.

Finally, what makes the debate all the most duplicitous is that the most ardent advocates against “free agency” for college athletes are coaches who, without fail, jump from opportunity to opportunity leaving students, fans, and others behind to redefine their version of loyalty.

Sunday, September 10, 2017
NFL Faces Uphill Battle in Obtaining "Emergency Stay" from Fifth Circuit

The next legal front in the NFL vs. NFLPA battle over Ezekiel Elliott's 6-game suspension is expected to open this week (perhaps as soon as Monday), when the NFL files its notice of appeal of Judge Mazzant's preliminary injunction ruling. But that act alone will not jeopardize Elliott's playing status for the 2017 NFL season. Federal appeals often take many months to resolve. And the Fifth Circuit (which hears appeals originating from lower federal courts in Texas, Louisiana and Mississippi) is no exception. According to recent federal court management statistics, the average duration of an appeal in the Fifth Circuit is 8.8 months (measured from the date of the filing of a notice of appeal to its ultimate disposition). By that measure, it could be April or May at the earliest before there is a final decision on the NFL's appeal. And even if the appeal were "expedited" (which either party could request on a showing of "good cause"), the appeal would likely still be pending (meaning unresolved) at the end of the 2017 NFL season. This is because even expedited appeals (like all appeals) still require a full briefing on the merits--which would entail the filing of an opening brief, an answer brief, and a reply brief (spaced out over a period of many weeks), an oral argument before a three-judge panel, and, ultimately, a written decision which could take weeks to finalize. It is unrealistic--and next to impossible--to expect all that to be accomplished by January.

But there is one procedural vehicle that the NFL could still use to reinstate Elliott's suspension THIS year. Once it files its notice of appeal, the NFL could ask the Fifth Circuit to "stay" Judge Mazzant's preliminary injunction pending the outcome of the appeal. In other words, the NFL would ask the Fifth Circuit (and Judge Mazzant before that) to prevent the injunction from going into effect for the entire duration of the appeal. Such a maneuver, if successful, could lead to an immediate reinstatement of Elliott's suspension and force him to sit out six games this season. But under the appellate rules, the NFL would first have to ask Judge Mazzant for a stay before it could properly present an application for similar relief to the Fifth Circuit. And, of course, Judge Mazzant is unlikely to stay his own injunction, especially not after concluding that Ezekiel Elliott faces "immediate" irreparable harm from the NFL's disciplinary action. Once Judge Mazzant denies that request (assuming that it is even made--remember, the NFL opted not to seek an emergency stay of the Deflategate lower court decision), the focus would then shift to the Fifth Circuit, perhaps as soon as this week, leading to another frenzied round of briefing (and another court ruling) prior to Week 2 of the NFL season. 

But such a gambit is not likely to succeed. In order to obtain a stay of a lower court order pending appeal, an applicant (here, the NFL) must show four things: (1) a likelihood of success on the merits of the appeal; (2) that "irreparable harm" will befall the NFL in the absence of a stay; (3) that comparatively little harm  will be suffered by the other parties (e.g., the NFLPA and Elliott) if the court issues the stay; and (4) that a stay would benefit the public interest. See Voting for America, Inc. v. Andrade, 488 Fed. Appx. 890, 893-94 (5th Cir. 2012) ("The standards governing a stay are well established: '(1) whether the applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'") (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d (1987))

If these standards seem familiar, it is because they are essentially the same requirements which governed the issuance of the preliminary injunction. Indeed, in the Andrade case, the Fifth Circuit acknowledged that "[t[he factors to be considered in deciding whether to stay an order pending appeal are virtually the same as the factors used by a court in deciding whether to issue a preliminary injunction." Id at 894. But just because a preliminary injunction was issued to Elliott, that does not necessarily mean that the NFL has a good chance (or even a "puncher's chance") of securing a stay of the injunction pending appeal. As numerous federal courts (including the Supreme Court) have repeatedly cautioned, a stay pending appeal is an "extraordinary remedy" that should be granted only in "extraordinary circumstances."  See Williams v. Zbaraz, 442 U.S. 1309, 1311, 99 S.Ct. 2095, 2097, 60 L.Ed.2d (1979) ("Stays pending appeal are granted only in extraordinary circumstances."); Andrade 488 Fed. Appx. at 895 ("A stay pending appeal is an 'extraordinary remedy.'"); Archer & White Sales, Inc. v. Henry Schien, Inc., 2017 WL 661768, at *1 (E.D. Tex. Feb. 17, 2017) ("Under Fifth Circuit law, the stay of a case pending appeal constitutes 'extraordinary relief.'" (quoting Reading & Bates Petroleum Co. v. Musselwhite, 14 F.3d 271, 275 (5th Cir. 1994))

In my view, the NFL faces a nearly insuperable obstacle in securing an emergency stay: the lack of irreparable harm (element #2). While we can all reasonably debate which of the two sides is more likely to ultimately succeed on the merits of the appeal (me: the NFLPA), what is incontestable here is the absence of any "irreparable harm" to the NFL. That element and the 'balancing of the harms' (the third requirement) play out decidedly in Elliott's favor on a motion for a stay pending appeal. As a professional athlete with a relatively short career  span (as compared to most conventional occupations), a suspension of even a short duration (which six games is not) would constitute "irreparable harm" to Elliott. The federal courts have repeatedly acknowledged that professional athletes have a limited time to ply their trade and that improper suspensions constitute the requisite "irreparable harm" that would support the issuance of a preliminary injunction.

Judge Mazzant's "irreparable harm" analysis underscores the difficult task awaiting the NFL should it decide to seek an emergency stay from the Fifth Circuit. In the portion of his opinion addressing "irreparable harm," Judge Mazzant concluded that Elliott "is likely to suffer irreparable harm if he is improperly suspended based on a fundamentally unfair arbitration proceeding." He explained:
Elliott is faced with missing six games, which is a large portion of the NFL's season, and potentially deprived Elliott of the ability to achieve individual successes and honors. . . . The careers of professional athletes are 'short and precarious, providing a limited window in which players have the opportunity to play football in pursuit of individual and team achievements.' . . . The Court joins the long line of cases that have previously held that improper suspensions of professional athletes can result in irreparable harm to the player. Nat'l Football League Players Ass'n v. Nat'l Football League, 598 F. Supp. 2d 971, 982 (D. Minn. 2008) ("Williams") (citing Jackson, 802 F. Supp. 226, 230-31 (D. Minn. 1992); Brady v. NFL, 779 F. Supp. 2d 992, 1005 (D. Minn. 2011), rev'd on other grounds, 644 F.3d 661 (8th Cir. 2011); Prof'l Sports Ltd. v. Va. Squires Basketball Club Ltd., 373 F. Supp. 946, 949 (W.D. Tex. 1974)

By contrast, Judge Mazzant reasoned, the NFL would not suffer any irreparable harm from the issuance of a preliminary injunction. He rejected as "unpersuasive" the NFL's argument that the "agreed-upon internal procedure" for resolving disciplinary appeals (as contained in Article 46 of the CBA) would be "eviscerated" by an injunction in this case:
While the NFLPA and NFL have an agreed-upon procedure, that procedure is intended to be one of fundamental fairness. Given the current set of facts, an injunction does not eviscerate the internal procedures of the NFL and NFLPA but merely ensures the internal procedures are being carried out in the appropriate manner. Both the NFL and the NFLPA "have an interest in ensuring that the suspensions meted out under the [Personal Conduct Policy] are not tainted by [fundamental unfairness] and wrongdoing." Williams, 598 F. Supp. 2d at 983. Therefore, the Court finds that the NFLPA showed the balance of hardships weighs in favor of granting an injunction.
Further, while left unsaid in Judge Mazzant's order, the reality here (and a far more important point) is that the NFL can always impose a six-game suspension on Elliott at a later date (such as next year) were it to eventually prevail on appeal in the Fifth Circuit. Indeed, Commissioner Goodell's August 11, 2017  letter informing Elliott of his six-game suspension does not expressly provide for it to begin "on" or "by" a specific date--only that it would be six total games in duration. ("You are hereby suspended without pay for six (6) regular season games, subject to appeal"). In other words, the league will eventually get its "pound of flesh" from Elliott (assuming, of course, that it wins on appeal). By contrast, Elliott will never get back the "lost" six games if a stay were entered, the suspension reinstated and served during the appeal, and then the Fifth Circuit affirms Judge Mazzant's order. While the powers of a federal judge are vast and all-encompassing, they are not so powerful as to enable "time travel." No federal judge has the power to turn back time--literally. Once those games are gone, they are gone forever, and Elliott will never get them back. Based solely on the irreparable harm issue (and the related 'balancing of harms' inquiry), Elliott and the NFLPA should be able to successfully forestall any attempt by the NFL to obtain a stay of the preliminary injunction pending appeal.

But if the Fifth Circuit disagrees and enters a stay, it could be a true "game-changer." The second one in a week. And it would potentially (and likely) signal the Fifth Circuit's eventual decision on the merits of the appeal: principally, that the NFL will prevail on appeal. To be sure, if the Fifth Circuit enters a stay pending appeal, it is basically saying two things: (1) that the harm to the NFL from an injunction remaining in effect is greater than the harm to Elliott from having to serve a six-game suspension (even if he were to later win on appeal); and (2) the NFL will likely prevail on appeal (the more important take-away of the two). That's why this week--even more so than Judge Mazzant's ruling on Friday night--may ultimately determine Elliott's fate for the 2017 NFL season. While it would be a surprise to me (as well as the wrong decision) if a stay were issued here, if we have learned anything from the Elliott, Brady and Peterson legal sagas it's that--just like in a football game--there are frequent momentum shifts and that today's inspiring victories could soon become tomorrow's crushing defeats. While I don't expect that to occur in the Elliott case, there is always that possibility as his case ascends the judicial ladder. And we could get an early preview as soon as this week.

--- Daniel Wallach

Saturday, September 02, 2017

In biblical times, Ezekiel had a vision of interlocking wheels and prophesied the tragic destruction of Jerusalem. Ezekiel Elliot, whose wheels have carried him to fame and fortune with the Dallas Cowboys, just might see a more contemporary powerful Kingdom known as Goodell’s NFL succumb to a similar fate.

Some thought Goodell and the NFL would learn from its mistakes in Deflategate. After all, but for his Hail Mary to the Second Circuit, things looked mighty grim for the Commissioner after Judge Berman’s decision in the District Court. But instead the NFL was so emboldened by its ultimate victory over the best quarterback in the league, it doubled down in imposing the six game suspension on the game’s top running back. Quite a marketing plan.

It’s not just that the investigation involved the actions of Mr. Elliot while he was technically still a college athlete and had not yet signed an NFL contract. It’s not just that the authorities investigating the incident at the time, when the facts were fresh, could not come to any conclusion one way or the other that wrongdoing had occurred.

In this case, the NFL assigned Kia Roberts alone the task of interviewing the complaining party and Ms. Roberts, a former New York Assistant District Attorney hired to be the NFL’s Director of Investigations, did not believe a suspension was warranted. The NFL did not ask for Ms. Roberts’ recommendation and, among other procedural missteps, did not give Mr. Elliot and his counsel the opportunity to confront the accuser, a basic tenet of due process. 

The NFL did think that, by appointing Mr. Henderson to serve as the arbitrator instead of Mr. Goodell, it would eliminate any criticism that the Commissioner was cop, judge, jury and executioner. But Mr. Henderson, always a company man, was anything but an independent decision maker. Had they chosen someone outside the NFL cabal, they might have stood a better chance of not having the suspension suspended and ultimately revoked. But then, that independent arbitrator may have decided differently.

Curiously, and as our colleague Dan Wallach predicted, Mr. Elliot and the NFLPA filed a petition to overturn the suspension in a Texas Federal District Court, a thousand or so miles from the Second Circuit’s jurisdiction, before the arbitration process was concluded, getting the jump on the NFL which had first filed against Brady the moment it was issuing its final ruling. 

This time the argument may not be limited to this or that procedural defect at the arbitration, which allowed the Second Circuit to reverse what was surely Judge Berman’s correct result, considering there was actually no competent evidence that any footballs were deflated. Here, as well as in Deflategate, it is the ruling itself that is the best evidence that something is surely amiss in the manner in which the NFL conducts its arbitrations and disciplines its stars.

Monday, August 28, 2017
NFL's Evidence Exclusion May Pave Way for Elliott Victory in Federal Court on "Fundamental Fairness" Grounds

As noted legal philosopher, Yogi Berra, once famously remarked: "It's deja vu all over again. More than two years after the National Football League handed Tom Brady a decisive lower court victory in Deflategate for denying his legal team access to crucial evidence--only to be bailed out later by a federal appeals court--the NFL is back to its old ways. This time, and in an even more damaging way, the NFL has thrown another evidentiary roadblock in the path of an NFL player attempting to challenge a league suspension. And this one could come back to haunt the league in court (I believe it will. More on that shortly). Late last week, Harold Henderson (the league-appointed arbitrator presiding over Ezekiel Elliott's arbitration) refused a request from Elliott's legal team to make Elliott's accuser, Tiffany Thompson, available for cross-examination at the arbitration hearing. The NFL of course, as a private entity, has no legal authority to compel Ms. Thompson to appear as a witness. The NFL is not a court of law (although sometimes it pretends to be), and, therefore, has no subpoena power over persons not affiliated with the NFL.

But the NFL went one fatal step further--it also denied Elliott's team access to the notes from the league's multiple interviews with Ms. Thompson. These interviews (and the notes therefrom) played a central role in the league's decision to suspend Elliott for six-games under the NFL's personal conduct policy. The NFL's Investigative Report reflected interviews with "more than a dozen witnesses, including Ms. Thompson." (NFL Letter to Elliott dated August 11, 2017). To be sure, the NFL's decision to suspend Elliott for six games was at least based, in part, on the league investigators' numerous interviews with Ms. Thompson. At least six such interviews were conducted.  So while the league could not have legally compelled Ms. Thompson to appear as a witness, the interview notes are the next best evidence (short of live testimony and cross-examination). Part of the NFLPA's strategy at the arbitration hearing will be to attack Ms. Thompson's credibility by challenging the veracity of her statements to the NFL and police investigators. With no witness--and now no notes--the NFLPA has been dealt a serious setback in its ability to successfully pursue that strategy.

One of the basic tenets of our legal adversary system is the ability to confront and cross-examine accusing witnesses. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be protected by the Sixth Amendment (in criminal trials) and the Seventh Amendment (in civil jury trials). The central function of this right is to protect the accused from the use of ex parte statements as evidence against him. Accordingly, the 'Confrontation Clause' prohibits the admission of testimonial statements made by witnesses outside of court, unless the witnesses are unavailable and the defendant had a previous opportunity to cross-examine him or her.

But arbitration is a different animal. It is a less formal process than a court case, and the rules of evidence are not rigidly applied. As numerous federal decisions have observed, "in making evidentiary determinations, an arbitrator need not follow all the niceties observed by the federal courts. The arbitrator need only grant the parties a fundamentally fair hearing." However, while there may not be an 'absolute' right to confront and cross-examine accusing witnesses in an arbitration proceeding, there is another vehicle for raising this argument under a different guise: the doctrine of "fundamental fairness." Under Section 10(a)(3) of the Federal Arbitration Act ("FAA), federal courts can vacate an arbitration award where "the arbitrators were guilty of [any] misconduct . . . by which the rights of any party have been prejudiced, thereby amount[ing] to a denial of [a party's right] to fundamental fairness of the arbitration proceeding." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 19-20 (2d Cir. 1997). Refusing to hear evidence "pertinent and material to the controversy" is one of the classic grounds for challenging an arbitration ruling on "fundamental fairness" grounds.

In NFL vs. Brady, for example, U.S. District Judge Richard Berman (of the Southern District of New York) held that Commissioner  Goodell's arbitration award upholding Tom Brady's four-game suspension was defective because the Commissioner deprived Brady of "fundamental fairness" by denying him the opportunity to cross-examine NFL Executive Vice President and General Counsel Jeff Pash, who was designated by the league as the "co-lead investigator" along with Ted Wells (the author of the infamous "Wells Report"). As recounted in Judge Berman's opinion, Pash "was allowed to review a draft of the Wells Report and to provide Paul, Weiss [the law firm which employed Wells] with written comments  or edits prior to the Report's release to the public." By denying Brady the opportunity to cross-examine Pash at the arbitration hearing, Judge Berman identified two distinct ways in which the NFL "prejudiced" Brady's right to a fundamentally fair hearing: (1) he was "foreclosed from exploring, among other things, whether the Pash/Wells investigation was truly 'independent,' and how and why the NFL's General Counsel came to edit a supposedly independent investigation report"; and (2) "there was no other witness, apart from Pash, who was as 'competent to address the substantive core of the claim.'" Judge Berman observed that as "co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL's degree of involvement in, and potential shaping of, a heralded 'independent' investigation." Thus, as Judge Berman concluded, "[t]he issues known to Pash constituted 'evidence plainly pertinent and material to the controversy."

Unfortunately, the Second Circuit reversed Judge Berman on this issue, characterizing Pash's role in the investigation as "collateral" to the issues at arbitration, and, therefore, not material or important enough to constitute a violation of fundamental fairness. According to Judge Barrington Parker (the author of the Second Circuit's majority opinion), "[t]he insights Pash might have had and the role he might have played in the preparation of the Wells Report were concerns that were collateral to the issues arbitration. The CBA does not require an independent investigation, and nothing would have prohibited the Commissioner from using an in-house team to conduct the investigation." The Second Circuit also reversed Judge Berman's second basis for finding that the arbitration lacked "fundamental fairness": the NFL's refusal to provide Brady with access to the Paul, Weiss investigative files. On that point, the Second Circuit agreed with the NFL's argument that the CBA does not require the exchange of such notes, pointing to the Article 46 provision specifying that the parties need only "exchange copies of any exhibits upon which they intend to rely," which the court interpreted as not requiring "extensive discovery."

Those skeptical of Ezekiel Elliott's chances in federal court have consistently pointed to the Second Circuit's decision in Brady, and to a lesser extent, the Eighth Circuit's decision in Peterson, as granting Commissioner Goodell somewhat of a carte blanche to do as he pleases without judicial interference. I'm not buying into that. It wasn't too long ago that the NFL was on a horrendous losing streak in court cases. Its record in recent legal controversies (e.g. 'Bountygate,' Ray Rice. and the lower court decisions in Brady and Peterson) was abysmal until the two recent federal appeals court decisions turned the tide. But sometimes the pendulum swings back the other way. First, there is no guarantee that the Elliott case will even be litigated in the Southern District of New York. As I have speculated (and even urged), the NFLPA may try to win the proverbial 'race to the courthouse' by filing a preemptive lawsuit in a Texas or Ohio federal court before Henderson issues his arbitration ruling. Given the NFL's past conduct in Deflategate--where it controlled the timing of the release of the arbitration decision and then promptly filed a lawsuit in New York federal court before the NFLPA could react--I would not be surprised if the NFLPA tried to get the jump on the NFL by filing suit in advance of a Henderson ruling. Such a tactic--no worse than what the NFL did in Deflategate--would allow the NFLPA to secure its preferred forum (e.g., Texas or Ohio) under the "first-to-file" rule for determining the priority of competing federal lawsuits.

But even if forced to litigate in New York, I'm not convinced that the lower federal court or the Second Circuit would adhere to the Deflategate decision on the question of "fundamental fairness." The Second Circuit did not absolutely foreclose the use of "fundamental fairness" as a grounds for vacatur in labor arbitration cases, although it has not expressly recognized it either. Nonetheless, there is a world of difference between excluding a "collateral" witness like Jeff Pash (who was not a central character in the Deflategate saga) and denying an accused access to an undeniably critical witness such as Tiffany Thompson, whose statements to the NFL provided the foundation for the discipline imposed against him. While she obviously can't be compelled to testify (as I have noted, the NFL lacks that power), the notes of her extensive interviews with the NFL are nonetheless important pieces of evidence, certainly much more so than the Wells investigative files in Deflategate. The exclusion of these notes, in my view, is far more harmful to Elliott's case (and the overall fairness of the arbitration) than was the denial of the investigative files to Brady.  Like night and day. The Second Circuit might even agree.

But even looking at cases beyond Deflategate, federal courts reviewing arbitration awards often look to whether the party challenging the award had a full and fair opportunity to question and cross-examine his accusers. See, e.g,  Finelli v. SW Airlines Co., 2002 WL 1610585 (N.D. Tex. July 19, 2002). The Finelli decision could be especially helpful to Elliott if he files suit in the Northern District of Texas. In confirming a labor arbitration award, the Texas federal court held that the terminated flight attendant "was afforded a full and fair opportunity at [the] arbitration hearing to question and cross-examine persons who accused him of violating his former employer's sexual harassment policy. The court further noted that the terminated employee "was provided with [the] investigator's interview notes, which could have been used to point out any inconsistencies between witness' testimony and their original statements." Elliott does not have anywhere near the same protections--no cross-examination and no notes--as the terminated employee did in Finelli.

Given the obvious importance of Ms. Thompson's testimony, the NFL runs the risk of seeing its two-case winning streak come to an end, whether it's in Texas or New York. In this respect, Elliott's case can be seen as much stronger than Brady's.

-- Daniel Wallach

Wednesday, August 23, 2017
Baseball announcers really do not understand the Infield Fly Rule

I am watching the ESPN broadcast of Angels-Rangers and am stunned by how badly the announcing crew does not understand the Infield Fly Rule. In the bottom of the fourth, the Angels had first-and-second/one-out when Albert Pujols hit a pop-up halfway between home and the mound. The catcher could not play the ball which drifted away from him and fell to the ground. The catcher threw to third for what he thought was a forceout, but the third-baseman did not tag the runner. But the home plate umpire declared that runner safe, because the first-base umpire had invoked infield fly, removing the force on the runners. At the end of the day, the Angels had second-and-third/two-out.

But the announcing crew started talking about the play and the IFR and it was somewhat amazing to hear them be so wrong about:

• They complained that the umpire had not called it until the ball was about on the ground. That was factually wrong, as a wide-angle replay from the left side clearly showed the first-base ump raising his fist when the ball was at its highest point or had just started to descend.
• They complained that the umpire did not invoke as soon as the ball was in the air. But the ump cannot call it as soon as it is in the air, because he has to determine that it is playable with ordinary effort. Sometimes that means waiting for the ball to almost come down to the ground. At a minimum, it means waiting for the ball to reach its apex and see whether someone can catch it with ordinary effort. On that point, I am not sure the call was correct, as the ball was drifting away from the catcher and might not have been playable with "ordinary effort."
• They kept insisting that it was obvious this was an infield fly and there was no judgment involved that would cause the umps to have to think about it. But the question is not whether the ball is on the infield, but whether it is playable with ordinary effort. That involves judgment.

From watching seven years worth of IFR plays, I have listened to a lot of announcers guessing (wrongly) about the rule). This was among the worst conversations I have heard.

Wednesday, June 21, 2017
Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Thursday, May 25, 2017
DePaul Law Review Publishes Three Articles In Symposium Edition On Fantasy Sports And The Law

Last week, DePaul Law Review released its Volume 66 edition, which includes three articles from its 2016 symposium on fantasy sports and the law.

(2) Attorney Darren Heitner wrote the provocative piece entitled "Why Fantasy Sports Should Welcome Uniformity of Law."

(3) The trio Justin Fielkow, Daniel Werly and Andrew Sensi published "Tackling PASPA: The Past, Present, and Future of Sports Gambling in America."

Fantasy sports and the law is an emerging field with a lot of people making bold assertions in blogs and to the media, but not too much formal legal research.   I strongly recommend all three of these articles based on their ability to withstand the formal scrutiny that is required before law review articles are published.

Tuesday, May 16, 2017
Hope to see you at the 2017 Oregon Law Summer Sports Institute

Looking to study sports law this summer?

You might be interested to know that I’ll be teaching again this July at the University of Oregon’s annual Summer Sports Institute. This is a five-week, six-credit program that brings together faculty and experts from across the nation to teach in an immersive environment. The program is designed for students who are interested in sports law but attend law schools that don’t offer a meaningful regular-semester sports law program.

Like last summer, I’ll be joined by Matthew Mitten (Marquette), Gabe Feldman (Tulane), Jo Potuto (Nebraska), Andrew Brandt (Villanova), Maureen Weston (Pepperdine), and a host of others. Also, I’m told the program will feature around 20 outside speakers from as far away as Barcelona, including Ed Goines, the general counsel of the Seattle Seahawks, Paul Loving, US sports law counsel for Adidas, and Marcos Motta, the Brazilian lawyer who represents Neymar.

To apply, or if you have any questions, contact program director Robert Illig at

The final deadline is June 2nd. Former participants have raved to me about how much they’ve learned from the program and how much fun they had making connections with other like-minded students, faculty and practitioners. Hope to see you there!

Thursday, May 04, 2017
Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But how is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.
[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?
2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Wednesday, May 03, 2017
Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Thursday, April 06, 2017
The solution to late-game fouling?

No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.
But it appears Nick Elam, a middle-school principle and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).

The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.

The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).

On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.

Monday, April 03, 2017
Lexi Thompson and the application of golf's rules

Last Sunday, the golf world suffered through another difficult rules incident when the LPGA, acting on a tip from a television viewer, imposed a four-stroke penalty on Lexi Thompson for a small rules violation commited during play concluded on the previous day.  This penalty probably cost Ms. Thompson the tournament (one of the LPGA’s majors), as she wound up losing in a playoff.

Commentary immediately following this fiasco predictably and appropriately included criticism about acting on tips from TV viewers and the notion that a penalty could be imposed long after play in a given round had concluded.  One thing missing, however, was detailed analysis about the substantive ruling itself.  Most commentators appeared to presume that the LPGA had no choice in the matter because the rules of golf clearly prescribed the outcome, painful as the outcome was.

Was this really the case?  A closer look at the rules of golf suggest that an entirely different result would have been entirely defensible, and in many ways far better for the game.

The LPGA stated that Thompson had violated rule 20-7C by playing from the wrong place.  This violation allegedly happened when Thompson marked her ball on the green in accordance with the rules, picked it up, and then placed the ball back on the green before putting.  TV replays showed that Thompson inadvertently failed to place the ball exactly where it was when she picked it up.  This put Thompson in apparent violation of rules 16-1b and 20-1, which require a marked ball to be “replaced.”  When Thompson then putted the ball from this location, she (in the opinion of the LPGA) played from the wrong place.

I do not believe that was the only interpretation of the rules available to the LPGA.  First, Rule1-4 states, “If any point in dispute is not covered by the Rules, the decision should be made in accordance with equity.” 

Second, the meaning of the word “replace” does not necessarily mean that Thompson violated the rule.  One might, as the LPGA apparently did, interpret that word to mean that the competitor must place her ball in exactly the same place as it rested when picked up.  Of course, no competitor ever does precisely that.  Every ball, by reason of human error, is placed back on the green some minute distance from its original location.  Thus, the meaning of “replace” cannot refer to exactly where the ball previously rested.  Instead, there is a margin for error that must be permitted. 

How large a margin should there be?  One possibility is to interpret “replace” so that a player doesn’t violate the rule if the ball is close enough to its original location to avoid any meaningful advantage.  Another possibility is to interpret the word so that the player doesn’t violate the rule if the variance from the original location is within a distance capable of casual perception by others present on the green.  Together, these interpretations probably conform to everyday practice.  Golfers do not stand over their fellow competitors to make sure that balls get replaced exactly in the same location.  They are content to police the rule within what’s casually perceptible because errors smaller than that do not lead to meaningful advantage.

This interpretation would have kept Thompson in the clear.  She clearly did not gain any material advantage from her error.  From watching TV replays, I seriously doubt her ball was more than an inch from where it originally lay.  Her putt was extremely short and probably would have been conceded by an opponent in match play.  No one, to my knowledge, has claimed that Thompson made her putt easier.

Additionally, I think it is significant that no one (including her fellow competitors, their caddies, or any rules official who may have originally been present) noticed the supposed misplacement.  Instead, the problem came to light because a viewer watching TV emailed the LPGA.  Yes, when you watch the replay and you’re told to look for it, it’s possible to see that Thompson’s ball is perceptibly “misplaced.”  However, it’s not really apparent without a zoom-in shot, and I highly doubt that anyone watching her at the time could have seen it without standing over her to monitor every movement in detail.  No golfer does that to a fellow competitor.

Accordingly, there is ample room to argue that Thompson did indeed “replace” her ball within the meaning of the applicable rules.  I am of course aware that one could reach a different interpretation, one based on a more literal meaning attached to “replace.”  However, it’s not as if the Rules of Golf require remorseless literalism.  For example, Rule 20-1 clearly states that a player suffers a one-stroke penalty if she picks up her ball without marking it first.  Nevertheless, decision 2-4/3 excuses such a violation, despite the apparently “no exceptions” wording of the rule, when a player reasonably makes a mistake about whether her putt has been conceded in match play. 

Mind you, I am not claiming that only one interpretation of the rules is possible.  Rather, I’m pointing out that the rules used to punish Thompson were not as clear as people may think, and that the precise outcome of her situation is not truly “covered by the Rules.”  Thus, equity should have played a role in applying the rules to Thompson, and I believe that equity would have led away from finding her in breach of the rules.

It may be appropriate to come up with new rules about not accepting violations found by TV viewers or imposing a "statute of limitations" on how much time can pass before rules violations will not be acted upon.  However, it also behooves those responsible for applying golf's rules to think carefully about the role of equity in their administration of existing rules.  Observers of golf will keep calling in potential minor rules violations, and escalating all of them into tournament-altering incidents risks souring the public on the game itself.