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Thursday, May 08, 2008
Professors Thomas Hazlett and Joshua Wright on Insuring Top College Basketball Players  George Mason University School of Law professors Thomas Hazlett and Joshua Wright have published a provocative and engaging op-ed in today's Chicago Tribune that proposes insurance as a way of offsetting the risk to players and schools that the players leave early for the NBA Draft.Here is an excerpt from their piece: * * * Cross-town rival USC was left in even worse shape by its freshman sensation, O.J. Mayo. A bitter fan posts: "As a Trojan alum, I have a hard time feeling like O.J. Mayo was ever a Trojan at all . . . I'm glad he's off to mediocrity in the NBA." Many call for an end to this "college" charade. Proposals include urging the NBA to restore its old rule, drafting high schoolers, or going back to the old-old rule, waiting to draft until four years after high school. But the NBA is unlikely to be moved: This isn't the NBA's problem. Our  suggestion is to attack the problem at the college level, where the sport is left twisting in the wind.First, we note a standard economic problem. Players jump to the NBA because prices (wages) tell them that that is where they are valued. But those price signals are wrong. The college game delivers as much or more excitement, pound for pound, as the pros. What mucks up the system is the NCAA cartel, which restricts payments to college players. The universities maintain that students are amateurs and that it would violate ethics to pay them cash money. This recalls the elitist tripe that the International Olympic Committee maintained for a century, a laughable lie that fell soon after the collapse of Soviet communism—a provocative correlation we'll leave to historians. Second, we posit that there are two reasons that freshman stars are so likely to leave college early. One is that NBA salaries are high, and that each year a player waits to cash in is one very rich year they lose. Until the NCAA cartel is smashed, that problem is beyond our solution. But the second motive is to mitigate risk. One clumsy leap and a $7.6 million guaranteed contract—the expected price tag for this year's 12th NBA pick—goes poof! And, as financial economists will tell you, that first $7.6 million is probably more important to you than the next. So the answer, given that universities cannot pay athletes market wages, is to at least insure them. Were underclassmen to be appraised, via draft rankings, and then offered compensation in the event—post-graduation—they slipped by some increment, they could hedge this very considerable exposure. The NCAA allows players to insure, but the player pays even though it is largely the university (and its fans) that benefits. Moreover, policies can only insure against career-ending injuries, leaving the more common outcomes—less serious injuries and performance-related changes in draft status—terrifying prospects. The schools should extend broader coverage. The contracts we propose do not fully compensate college athletes for their valuable service, and would thus retain only some of the talent now jumping early to the pros. Yet, the approach would preserve the NCAA's "amateur" wink, while allowing student-athletes to play college ball until their 21st birthday without risking the family jewels. A slam dunk, really. * * * To read the rest of the piece, click here. To check out Professor Wright's excellent blog, Truth on the Market, click here. Tuesday, May 06, 2008
Defining Sport I jokingly have been interested in trying to define "sport." I have toyed with a definition that requires objectivity in scoring and determining winners. Thus, if it is about objective questions such as who runs faster or who scores more points, it is a sport; if it is about getting a 5.6 from the East German judge, it is not a sport. But John L. Jackson, an anthropologist at Penn's Annenberg School identifies three necessary conditions: 1) There must be a ball or ball-like object that organizes everyone's attention. Everything that does not possess all three elements is not a sport. it is a contest, a game of skill, an athletic competition, but it is not a sport, Jackson put this out there to suggest that much of what we focus in during the Olympics is not, in fact, sport, including the privileged Olympic events such as track and field and swimming. His broader point is that the Olympics really is not about sport; it is about non-sport athletic competition--not the same thing. Mike Zarren: The Growing Importance of Statistical Analysis in the NBA  Great piece by Stephen Dubner and Steven Levitt on the NY Times' Freakonomics on my good friend and former law school classmate Mike Zarren, who is the Boston Celtics' associate counsel and also, more significantly, the team's statistical expert.Here is an excerpt from their piece, which highlights the growing importance of "Moneyball" - type thinking in basketball: * * * But the team also employs what the general manager, Danny Ainge, calls his “secret weapon,” a 32-year-old named Mike Zarren, who seems to know every data point about every N.B.A. player, past and present. Garnett calls him Numbers, the Celtics Dancers call him Stats and Paul Pierce, the team’s longtime standout, calls him M.I.T. even though Zarren never went there. . . . Ainge hired Zarren simply because he wants any advantage worth having, and Zarren’s insights are “more information on every decision we make,” Ainge says. “Mike is a much smarter guy than I am. I’m open to smarter people than me. It still comes down to my instincts. I have to make the choice, no matter what my scouts say, no matter what the models say. I don’t think it’s realistic to think that a statistical model will ever be foolproof in basketball because there are so many variables, but I do think it can help us.” There are two channels through which Zarren can help the Celtics. The first is by assessing potential deals and draft picks, which means bouncing information off of Ainge. The second channel is strategic advice, which means going to Coach Doc Rivers, whom Ainge says is “skeptically receptive” to Zarren’s insights. You sense that Zarren has gained credibility within the Celtics not because the basketball people adore his regression analyses but because he adores the sport. “Most geeks are not basketball guys,” Zarren says, “and most basketball guys are not geeks. You have to be both to be successful in this developing field.” What’s the most efficient shot to take besides a layup? Easy, says Zarren: a three-pointer from the corner. What’s one of the most misused, misinterpreted statistics? “Turnovers are way more expensive than people think,” Zarren says. That’s because most teams focus on the points a defense scores from the turnover but don’t correctly value the offense’s opportunity cost — that is, the points it might have scored had the turnover not occurred. * * * For the rest of the piece, click here. For ESPN's Henry Abbott's take, click here. And for previous Sports Law Blog coverage on statistical analysis and the NBA, check out our post on Houston Rockets GM Daryl Morey. For my sports law students at BC Law in the fall and Vermont Law in the spring, I hope to get Mike to speak to the class. Monday, May 05, 2008
Applying Antitrust Labor Exemptions to Professional Golf and Tennis  Daniel Kaplan of SportsBusiness Journal (subscription only) has an interesting piece in this week's edition in which he reveals that The ATP World Tour is losing millions of dollars because of steep legal expenses tied to an antitrust lawsuit brought by one of its tournaments against the men’s circuit (5/5/08, Mounting Legal Expenses Add to ATP's Losses). According to sources, last year the ATP lost $5 million, and it is projected to lose $6.4 million this year. The ATP event in Hamburg, Germany, filed an antitrust suit against the ATP for trying to downgrade the event in the tour’s tier structure next year as part of the calendar remake. The Monte Carlo event also sued the ATP over the same issue, but that lawsuit was settled.I've always thought that rules and regulations established by the ATP, PGA and LPGA should be exempt from the antitrust laws under the same rationale for exempting rules established by professional sports unions and rules established by the unions and leagues via the collective bargaining process. Although they are not certified as labor unions under the National Labor Relations Act, all three associations essentially act as labor unions and serve as the voice and representative of the players as a collective group. When labor unions enact rules and regulations in their own self-interest, those rules and regulations may have an anti-competitive affect on third parties. Hence, the rationale for what's known as the statutory labor exemption. The source of the statutory exemption is found in the Clayton Act and the Norris-LaGuardia Act, and it "removes from the coverage of the antitrust laws certain legitimate, albeit anticompetitive, union activities because they are favored by federal labor policy." Powell v. NFL, 678 F.Supp. 777, 782 (D. Minn. 1988). For example, courts have exempted claims by agents against unions alleging that agent regulations adopted by the unions constitute an illegal restraint on trade. See Collins v. Nat’l Basketball Players Ass’n, 850 F. Supp. 1468, 1474 (D. Colo. 1991), aff’d 976 F.2d 740 (10th Cir. 1992). The U.S. Supreme Court, in H.A. Artists & Associates v. Actors’ Equity Ass’n, 451 U.S. 704 (1981), held that labor unions acting in their own self-interest and not in combination with nonlabor groups are statutorily exempt from the antitrust laws. If the ATP or PGA adopted regulations governing agents with various certification requirements, should the simple fact that they are not certified as labor unions subject them to antitrust scrutiny? The non-statutory exemption insulates from the antitrust laws league rules and regulations that constitute mandatory subjects of collective bargaining (i.e. "wages, hours and working conditions") and that primarily affect only the parties to the collective bargaining relationship. All three associations -- ATP, PGA and LPGA -- have player representatives that serve on their boards of directors. The board votes on all sorts of subjects that affect the players and which are akin to "working conditions" -- for example, issues concerning format of play, where they are going to play their tournaments, how they are going to be ranked, etc., etc. The ATP's board of directors is made up of three player representatives and three tournament representatives. When the player and tournament representatives adopt rules and regulations that govern their particular sport and primarily affect only them -- which is essentially analogous to collective bargaining between unions and leagues -- why should those rules and regulations be subject to antitrust scrutiny? The Economics of Baseball Fandom From Daniel Hamermesh at Freakonomics: A recent article notes that attendance in Major League Baseball parks is actually above last year, despite, so the story says, the economic downturn (recession?). This might explain why one of the historic heydays for baseball was the 1930s, the worst economic period in the country's history. (H/T: My colleague Tom Baker at FIU) Sunday, May 04, 2008
They Shoot Horses, Don't They?  At Saturday's "dramatic" Kentucky derby, runner-up Eight Bells broke both ankles and had to be put down. Two years ago, when Barbaro suffered the injury that eventually ended his life, I asked, Was Barbaro Abused? Imagine if every year, one player died in the Superbowl. Or if a player died every year during the NBA finals. Would we tolerate such a result? Should it matter that the athletes who are pushed beyond the quite literal breaking point are animals? In fact, Kentucky has a "cruelty to animals" statute. Under the law, a person is guilty of a second degree misdemeanor if "he intentionally or wantonly...subjects any animal to cruel neglect or . . . kills any animal." Is it not possible to argue that pushing horses beyond their physical limits, causing their death, meets the statutory standard here? The statute provides immunity for euthanizing suffering animals, but I'm not asking if the euthanasia is illegal; rather I think the sport of horse racing itself -- at least as it seems to be run these days -- is a crime! A Different Way to "Hold" Coaches to Contracts We have had some discussion here lately about colleges using injunctions to try to keep coaches who are under contract from jumping to other schools. Well Memphis, fresh off its Championship Game appearance (and almost victory) gave Head Coach John Calipari a five-year extension, averaging $ 2.35 million per year. And, according to the current Sports Illustrated, the school found a way (it hopes) to keep him from jumping ship: a $ 5 million bonus if he stays until the end of the contract. Think about that--an extra $ 5 million just for adhering to the terms of the contract. We could look at the bonus as the school really paying him $ 3.25 million per year and backloading some of the money). Or, this is the mirror of the liquidated damages clause that schools have been trying to enforce lately--if you stay to the end, you get $ 5 million; if you leave early, we get $ 5 million. In other words, rather than using equity to keep coaches, schools will use a different form of market incentive. Saturday, May 03, 2008
Clemens and the Rules of Evidence: A More Absolute View The whole Roger Clemens story has been a big Claude Raines Moment: "I'm shocked, shocked, to find that a Major League Baseball player cheated on his wife." But I am going to take a more absolute view than Michael did: There is no way, if the judge is not asleep at the switch, that any evidence about Clemens' alleged affairs with McCready or Paulette Dean Daly is admissible. It cannot come in for any substantive purpose. First, as Michael notes, any effect on Clemens' reputation from these statements came after McNamee's statements and the Mitchell Report and damage to reputation must be measured from the time of the libelous statements. Second, McNamee's statements damaged Clemens's professional reputation--his status as the greatest pitcher of his generation--and his reputation for marital fidelity has nothing to do with that professional reputation. Third, character is not the same thing as reputation. So the fact that damage to reputation is an element of Clemens' claim does not open the door to a lot of evidence that shows nothing more than that Clemens is a bad person (bad husband, etc.). And that is before we even get into the question of unfair prejudice. Nor can it come in for impeachment/credibility purposes. Even assuming Clemens did have sex with McCready when she was underage, he never was convicted on statutory rape or anything similar and he is not going to be, since, as Michael noted, the statute of limitations has run. The only thing that can be used for credibility is the fact of conviction, not details of the underlying conduct. So, if there was no conviction, this is not in play. Specific instances of conduct also can be used for credibility, but subject to key limitations that will keep evidence of any affairs from being admitted. First, the rules only allow evidence of conduct that is probative of a witness' truthfulness or untruthfulness--meaning past lies or untruthful acts. Marital infidelity is kind of a gray area. Cheating on your spouse (the actual act of having an affair, apart from what he told his wife or anyone else about the affair) is not really an untruthful act--it does not involve falsehood. Cheating involves breaking a promise--a contract, if you will--but breaking a contract is not per se an untruthful act. And for all we know, Debbie Clemens knew about the affairs and maybe even acquiesced. We refer to cheating as being "false, but I think that is more a colloquial usage than a legally accurate one. It is sleazy, morally frowned upon, and makes people think that the actor is sleavy and immoral--but credibility is only about character for truthfulness, not character generally. Now, whether he lied about the affair when asked about it (by the press, by his wife, by whomever) is a different story and could be used. So, too, is whether, he lied to either woman about being married when he began the affair. But that runs into the second limitation. Under the rules, instances of untruthful conduct only can be asked about on cross-examination of the witness being impeached (Clemens) or another witness called to testify to Clemens' truthful character; they cannot be "proven up" by other evidence besides the target witness' testimony. So, at most, McNamee's lawyers could ask Clemens if he had an affair with McCready or Daly (or if he lied to his wife about having an affair with them). If Clemens denies the affair on the stand, that is the end of the inquiry. The lawyers are stuck with the answer and cannot bring in any outside evidence to show that Clemens is lying on the stand right now (to "complete the impeachment"). So do not expect McCready or Daly to be called as a witness. And do not expect to hear any of the details of any affairs. None of that is coming in. One More Thought: Any FIU College of Law students planning on taking Evidence next spring: Take careful notes. Friday, May 02, 2008
New Sports Law Scholarship Recently published scholarship: Anthony N. Cabot and Louis V. Csoka, Fantasy sports: one form of mainstream wagering in the United States, 40 JOHN MARSHALL LAW REVIEW 1195 (2007) Implications of Mindy McCready Affair Allegation on Roger Clemens' Defamation Lawsuit  Earlier this week, I wrote a column for SI.com on the implications of Roger Clemens' alleged sexual relationship with a then 15-year-old Mindy McCready on his defamation lawsuit against Brian McNamee. I was also interviewed by Russell Goldman for his piece on the same topic for ABC News.In his lawsuit, Clemens claims that McNamee defamed him by asserting that Clemens used steroids. For a variety of reasons (e.g., Clemens is a public figure; he will likely find it difficult to establish that McNamee is actually lying) I don't believe Clemens' lawsuit has much of a chance of succeeding. Nevertheless, as I explain in the column, the McCready accusation--which she claims is true--would probably prove difficult for McNamee to bring in, though there's a chance it could play a role in assessing Clemens' character. Hope you have a chance to check out the column and the ABC News story. I was also interviewed on The Papa Joe Chevalier Show, which is aired on KLAV 1230 Las Vegas, to discuss Clemens' alleged affair and Josh Howard's admission that he smokes pot during the NBA's off season. It can be heard at this link and I'm on from 19:20 to 30:30. I was also interviewed by Ed Berliner of the Speeding Bullet Network on Clemens' various legal problems and it can be heard at this link. Judge Rules in Favor of NCAA in Alabama Football Booster's Defamation Lawsuit In my post last November, "Alabama Jury Gets Revenge Against NCAA," I discussed a jury's $5 million award in favor of former Alabama football booster Ray Keller on his defamation claim against the NCAA alleging that the NCAA slandered and libeled him during the announcement of penalties against the Crimson Tide by referring to Keller and others as "rogue boosters," "parasites" and "pariahs." In November, I said: "This trial wasn't about defamation. It essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by 12 Crimson Tide fans!" This week, Circuit Judge William Gordon agreed, and threw out the verdict and granted the NCAA a new trial. According to Wednesday's press release: In my November post, I also discussed why I don't believe that the NCAA's alleged statement even rises to the level of defamation. Perhaps the fact that Judge Gordon sided with the NCAA on its argument that the jurors heard improper instructions indicates that he doesn't believe it either. Friday, April 25, 2008
Constitutional law in unexpected places For example, in George Clooney cinematic homages to His Girl Friday, every Cary Grant-Katherine Hepburn comedy, and movies depicting the minor-league backwaters of professional sports.  One of my colleagues was approached by a student in his Con Law I class, who had just seen the movie. According to the student (I have not seen the movie and probably will not until it comes out on video), one issue that arises is an attempt by Congress to regulate the new professional football league, including by requiring the teams to appoint a commissioner. (Can anyone who has seen the film confirm this?) The ever-vigilant new law student (I always tell my 1Ls that a legal education changes the way you look at everything, even nostalgic slapstick comedy) wanted to know where Congress could get the power to tell a professional sports league how to run its business. The answer, of course, is the Commerce Clause. But the interesting thing about that answer is that the story takes place in the 1920s, during the wild-west early days of professional football. And the prevailing view of the time was reflected in Justice Holmes' now-infamous decision in Federal Baseball Club v. National League, holding that professional baseball was not interstate commerce for purposes of the Sherman Act. And that decision at least intimates Holmes' (and the Court's) view at the time that professional sports were not interstate commerce for constitutional purposes, thus Congress lacked any power to regulate pro sports in the way apparently depicted in the movie. Oh well. By now, we should be used to popular culture getting law mostly wrong. Thursday, April 24, 2008
Another victim of sports mascot violence  In a previous post, I discussed the interesting role of sports mascots in spectator injury cases. Assumption of risk usually bars spectators injured by batted balls at baseball games from suing the team or arena. However, there is a split on whether a spectator distracted by a mascot should be able to get around this ordinary bar. The Tort Law Professor blog picks up the following interesting variant from the Chicago Tribune via Yahoo Sports: A Naperville dentist called a flagrant foul on Chicago Bulls' mascot Benny the Bull on Monday, suing the team over a high-five gone awry. [The plaintiff] alleged he was sitting near courtside on Feb. 12 when he raised his arm to get a high-five from . . . the exuberant mascot in a bright red fuzzy costume. But [the plaintiff], an oral surgeon, may now wish he had settled for a fist-bump instead.Does one assume a certain risk of injury when willingly seeking to "high-five" a large fuzzy bull? U. of Hawaii Enforces Contract Against Breaching Coach In the first week of January, Hawaii football coach June Jones terminated his 5-year contract that expires on June 30 of this year and accepted a job worth about $2 million per year at Southern Methodist. Hawaii claims it is entitled to damages for his early termination in the amount of $400,008 (which amount represents half of his annual salary). Section 10.4 of the agreement clearly provides, "If Coach terminates this Agreement prior to June 30, 2008,...Coach shall pay to the University as liquidated damages the sum of $400,008." Jones is now trying to get out of paying Hawaii. According to Jones' agent, Leigh Steinberg, there was an agreement with former athletics director Herman Frazier that "after three years, there would be no penalty if coach Jones were to leave the university. If that were not the case, coach Jones would always honor a contractual obligation." However, this alleged agreement with Frazier directly contradicts Section 10.2, which provides: Coach therefore agrees, and specifically promises, not to accept employment, under any circumstances, as a men's football coach at any institution of higher education which is a member of the NCAA...requiring performance of duties prior to the expiration date of the term of this Agreement or any extension thereof, without first obtaining a written release of this Agreement or a negotiated settlement thereof in writing accepted by Coach and the University. In the event that the University releases Coach of his obligations under this Agreement, Coach shall be responsible for paying to the University liquidated damages, as set forth in Section 10.4. Jones breached his contract with Hawaii, and the contract is crystal clear that he owes $400,008. His refusal to pay Hawaii is the result of a culture that currently exists within collegiate athletics that schools won't, or shouldn't, enforce a contract against a coach who leaves for a more lucrative situation. Jones should feel fortunate that Hawaii released him from his contract, thus triggering the liquidated damages clause. Hawaii could have elected not to release him and pursue a negative injunction to prevent Jones from signing with SMU, because Jones acknowledged in his contract that the university would be irreparably harmed if he terminated early:
Wednesday, April 23, 2008
Sonny Vaccaro to Speak at Columbia University Tomorrow Night  For those of you in the New York City area, Columbia University will be hosting its second annual Sports Ethics Symposium tomorrow night from 6:30 p.m. to 10:00 p.m.. The keynote speaker will be basketball legend Sonny Vaccaro, who has recently delivered talks at Harvard Law School, Yale Law School, the University of Memphis, and the University of Maryland. Sonny's talk tomorrow will focus on the NBA's desire to raise the age limit and various issues in college sports.Other speakers include Chris Bevilacqua, Co-Founder, CSTV Networks/Partner, SCP Worldwide Adolpho Birch, Vice President of Law and Labor Policy, National Football League Gary Charles, New York Panthers/AAU Coaching Legend Robert Lipsyte, Award-winning sports journalist Chris Monasch, Athletic Director, St. John's University For more details, click here. Monday, April 21, 2008
Sports Leagues and the New Media Good story in The New York Times (free subscription required) on the way that sports leagues are attempting to deal with changing sports media. The piece touches on some issues that we have discussed here in the past: credentialing independent bloggers and allowing them access to the locker room and other places; restricting audio and video clips on media web sites and blogs; and live blogging the games. Apparently, some members of the press have floated the idea that the First Amendment has a role to play in publicly funded stadiums, a point on which I have written and spoken a great deal. The upshot is that leagues and the media are butting heads over the future of sports coverage. Everyone is staking out a position and the Media Law Resource Center is researching the issues for possible future litigation, including the First Amendment/state actor issues and more targeting of anti-trust exemptions. But no one quite knows where this is going to come out. New Sports Law Scholarship Recently published scholarship includes: Jon Boswell, Note, Fantasy sports: a game of skill that is implicitly legal under state law, and now explicitly legal under federal law, 25 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 1257 (2008) Those who don't learn from history . . .  (H/T: Andrew Sullivan) Twice actually--history has forgotten that the 1936 Winter Games also were in Nazi Germany, in Garmisch-Partinkirchen. We also let a brutally repressive totalitarian Communist regimes host: the Soviet Union (Moscow) in 1980 (my mistake as to Munich), plus a "less repressive" Communist regime in Yugoslavia in 1984. Historically, in fact, the goal simply was to avoid offending the host nation. Thus, in part, did U.S. Olympic Committee officials, namely head Avery Brundage, replace Marty Glickman and Sam Stoller (two Jews) with Jesse Owens and Ralph Metcalfe (two African-Americans) on the 400-yard (these were pre-metric days) team (Jews being more offensive to Hitler than blacks). And we remember Owens in part for the political context of his on-field achievements--in a sense, his greatness embarrassed the host country. This also is why the U.S. boycott of rhe Moscow games in 1980 (and the U.S.S.R.'s responsive boycott of the Los Angeles Summer Games in 1984) was such a big deal politically--it infused politics in a way that embarrassed the host country. I have not been surprised by the ever-increasing uproar over China hosting the Games and I hope the International Olympic Committee, which made the decision, is not surprised. We are more aware of, and concerned with, human rights issues than we were even 25 years ago. There are more people, organizations, and nations talking about human rights. And, with technology, more ways to talk and hear about it. The protests and calls for boycotts that have arisen around the Torch relay, the Opening Ceremonies, and the Games themselves were inevitable. The IOC historically either had a tin ear or was too arrogant to care. That cannot be the case any longer. Sunday, April 20, 2008
Congrats to Florida Coastal and UVA Law School Softball Teams  Via TaxProf: For the second year in a row, Florida Coastal School of Law and the University of Virginia have won the annual and only mildly corrupt UVA law school softball tournament in the co-rec and men's divisions, respectively. One suspects that a certain Sports Law blogger may have contributed to the Florida Coastal victory. Saturday, April 19, 2008
Long-Term Contracts and the Coaching Carousel Rick is right that the college coaching carousel flies in the face of everything we think we know about contract law. On the other hand, job mobility is an element of many white-collar professions, including within a university setting. If another law school needs someone to teach civil procedure, the administration might contact me about moving or visiting there and I might at least consider leaving my current school and making that move. See here for a sense of how much law faculty move around, including out own Michael McCann. There is an expectation that a faculty member will leave School A for School B and that School A will replace her with someone recruited from School Z. This is how job markets work. The difference, it seems to me, is that coaches sign long-term contracts and the carousel renders these contracts farcical. As Rick notes, Travis Ford signed a seven-year contract extension, then left for a new school one week later--in other words, he performed one week of a 364-week contract. This movement arguably would be less troubling, at a visceral level, if we drop the pretense that either coach or school truly is making a long-term commitment and put coaches on one-year renewable contracts. Bring the legal landscape in line with reality--Coach Smith will be the coach at Enormous State University this year; whether he will be the coach at ESU next year depends on how the team does on the court and whether a better coaching offer comes along. Legal Fallout from Sonics Move to Oklahoma City I was interviewed by NPR to discuss the legal and economic implications of the Sonics upcoming move from Seattle to Oklahoma City. By a vote of 28-2 (with Dallas' Mark Cuban and Portland's Paul Allen voting no), the NBA owners voted to approve the move. Hope you have a chance to listen to the interview. Thursday, April 17, 2008
Breaching Contracts: It's Just Part of the College Coaching Biz One week ago, Travis Ford signed a contract extension to remain at UMass for the next seven years and said, "I am excited to know that UMass is committed to building the men's basketball program back to one of the best in the East and that I will have the chance to be at the helm for many years to come." Today, one week later, Ford breached that contract and signed with Oklahoma State. UMass athletic director John McCutcheon's reaction: "It's part of the business we're in. That's just something we have to deal with is professionalism. When you have an individual as talented as coach Ford was, that represents an institution like he did, you'd be naive to think you're not going to have these situations." I'm confused by McCutcheon's statements. Is he suggesting that it would be "unprofessional" of him if he tried to hold Ford to his contractual obligation? In other words, that it wouldn't be professional for him to say to Ford that they just agreed to a seven year deal and that he expects Ford to be bound by his promise? Why is that? And why is it "naive" to think that you can't keep another school from interfering with an existing contract? Nothing will change so long as athletic directors continue to take the position that "it's just part of the business we're in"....... Wednesday, April 16, 2008
David Ortiz's Curious Start to the 2008 Season  On Monday, Geoff wrote a great piece about the legal issues of the Red Sox fan who buried a jersey of David Ortiz under the new Yankees stadiumOver on The Situationist, Jon Hanson and I take a stab at trying to explain David Ortiz's hard-to-fathom early season struggles. We hope you check out both posts. Tuesday, April 15, 2008
David Throws Two Punches at Goliath A year ago last April, it was reported that Houston Baptist University (HBU), an NAIA school, made an application to rejoin the NCAA at the division one level, on a provisional basis. At that time, it was also reported that, because HBU was an NCAA division one school previously from 1973 to 1990, HBU would be required to wait only three years instead of the normal seven to become a full-fledged member of the NCAA. But according to HBU, after it became a provisional member last year, the NCAA notified HBU that the rule setting forth the provisional period for returning members was changed from three to seven years by an "editorial revision...(that) does not require a vote of Division 1 membership and is not a substantive change." Last month, HBU threw its first punch by filing a lawsuit against the NCAA in state court alleging that the NCAA violated its own constitution when it informed HBU that it would have to wait the full seven years before becoming a full-fledged member. In its lawsuit, HBU asserts "such an amendment (to the constitution) would have to be voted on by the full membership and passed by a two-thirds vote" and that "the change was arbitrary, capricious, and in total disregard of its own rules and regulations." Last week, HBU threw its second punch by filing an antitrust lawsuit against the NCAA in federal court alleging that the seven-year provisional period amounts to "an unreasonable restraint of trade" in violation of the Sherman Antitrust Act. HBU alleges that the seven-year wait has deprived it and other schools of the opportunities to compete in "highly successful and lucrative" postseason tournaments, specifically the NCAA men's basketball tournament, and that the NCAA has recently "established and sought to enforce policies that have had the intent and effect of restricting colleges from competing at all." Whether David actually ends up defeating Goliath here remains to be seen. In the state lawsuit, one of the first issues that most likely needs to be resolved is whether HBU has standing to assert a violation of the NCAA constitution when it is not a member of the NCAA. There is a factual issue regarding when the rule was revised from three years to seven. According to the press release, an NCAA spokesman said that "information on the change was provided in writing to Houston Baptist before the school applied for membership." If the rule was revised before HBU filed its application, it might bolster a defense by the NCAA that HBU has no right to complain about the manner in which NCAA member schools conduct their business, even when it violates their own constitution and bylaws. But if the rule was revised after HBU filed its application, the standing issue becomes more problematic for the NCAA because then it can be argued that the NCAA has an obligation to all applicants to follow its rules and to not act unfairly nor arbitrarily, which would necessarily include following its rules pertaining to the procedures for amendments to the Constitution. HBU would then need to prove that the amendment to the rule regarding the provisional period for returning members was not made in accordance with the requisite procedures for amendments as set forth in its Constitution (another factual issue). In the antitrust lawsuit, I don't think it's pertinent when the rule was revised by the NCAA. HBU is asserting that a seven year provisional period is an unreasonable restraint on HBU's ability to compete with other member schools in NCAA post-season basketball tournaments. A rule providing a provisional period before an applicant can become a full-fledged member of the NCAA constitutes a restraint on trade because the applicant is prohibited from competing in Division I athletics with all NCAA member schools. But the key question is what period of time constitutes a "reasonable" period of time, or to put it another way, whether seven years is an "unreasonable" period of time. The NCAA essentially needs to show a legitimate business reason for adopting a seven-year provisional period. Under a rule of reason analysis, the NCAA needs to demonstrate that the procompetitive effects of the rule outweigh its anticompetitive effects -- Of course, focusing on how the consumer is affected by this rule, which I have no idea how to assess. Let the jury try to figure out who the consumer is and how he, she or it is affected. You gotta love antitrust in sports.... Monday, April 14, 2008
Trespassing to Lay a Curse  An amusing story from the new Yankee stadium, where construction crews jackhammered through concrete to retrieve a David Ortiz Red Sox jersey buried there in an effort to hex the bronx bombers by Red Sox fan (and one-day stadium construction worker) Gino Castignoli. Not amused (it seems), the Yankees will apparently seek criminal charges against Castignoli, presumably for some sort of building code violation or criminal trespass. Unfortunately for Castignoli, I think there's also an open and shut case against him for trespass to land: Any person who commits an act of entry with intent to the land of another without permission is liable to the other for trespass. Leaving a thing on land without permission can constitute the "act of entry" needed for the trespass claim. And trespass, like other intentional torts, doesn't have much of a sense of humor -- as long as there was intent, that the effort may have been a good-natured practical joke would not provide a defense. Recoverable damages? It would seem like the Yankees could recover the expense associated with removing the jersey. Castignoli has argued that no structural damage was done, but I don't think a landowner is limited recovering removal costs / remediation expenses to situations where the removal or remediation is a structural necessity. Would this construction worker have to pay punitive damages as well? Yankees president Randy Levine described Castignoli as someone who "had really bad motives and was trying to do a really bad thing" and the act as "a very, very bad act." Most Red Sox fans likely have actual malice when it comes to the Yankees, or at least did until the past few years, no? Does that kind of malice suffice for the "aggravation" needed to state a claim for punitive relief? Of course, Castignoli could presumably request return of the jersey (although the Yankees intend to donate it to charity), and sell it on ebay to pay for his legal fees and damages. And maybe Red Sox nation will be kind enough to start a legal defense fund. Florida Coastal School of Law Skills Practicum  On Friday, April 18th, the Sports Law Society at Florida Coastal School of Law will be hosting a "Skills Practicum for the In-House Counsel". The practicum will consist of three separate seminars focusing on the every day legal issues faced by in-house counsel working for professional sports organizations, and the seminars will be taught by the very people who face them. The practicum will be held in Jacksonville, Florida, in Room 465 of the law school. The event is free of charge and has been approved for a total of 3.5 general CLE credits. Registration begins at 8:45 a.m. Here is the schedule for the day:Seminar 1 (9:00 - 10:30 a.m.): Working Through an Acquisition or Sale of Property. Len Brown, Assistant General Counsel of the PGA Tour, will discuss issues to be aware of as legal counsel working through various stages of a transaction, including the letter of intent, the due diligence process, the negotiation and execution of a purchase agreement, and the closing. Seminar 2 (10:45 a.m. - 12:15 p.m.): Legal Issues in Sports Sponsorship and Marketing Contracts. Jeff Reel, Vice President and Assistant General Counsel for ATP Tour, Inc., will discuss the nuts and bolts of negotiating and entering sports sponsorship and marketing deals, including the product/service category and the trademark license within the sponsorship agreement, the scope of promotional rights, representations and warranties, rights of first negotiations and refusal, and nontraditional termination rights. Seminar 3 (1:30 - 3:30 p.m.): Corporate Legal Issues Working for a Professional Sports Team. Sashi Brown, Assistant General Counsel with the Jacksonville Jaguars, will focus on corporate issues working for the Jaguars, which may include stadium leases, risk management insurance, vendor contracts, and employment matters. For additional information, or if you plan on attending the event, please contact me at rkarcher@fcsl.edu |