Sports Law Blog
All things legal relating
to the sports world...
Saturday, January 31, 2004
 

Using Sex to Recruit?: The Boulder (CO) District Attorney has accused the University of Colorado of using sex parties to recruit star athletes, especially in football, the Denver Post reported Thursday. The allegation came in a deposition given this past October in a case involving a former Colorado student who says she was raped in 2001 at a party with players and recruits.

Not surprisingly, the university is denying this claim, but the media and the governor are calling for a full investigation.

Do top-tier athletic departments use sex to recruit star athletes? It certainly would not be surprising, especially considering the amount at stake for top boosters and coaches. If a team gets the top athletes, it wins championships. If it does not, the school often misses out on the championships, top Bowl games and media attention that accompanies winning teams. It is of little surprise that athletic departments (and I doubt Colorado is alone here) use any means necessary to convince star athletes that their school is the best, athletically and socially. This does not make the practice any better, but if the NCAA steps in, it must remember that Colorado most likely is not the only school to use such a practice.

Wednesday, January 28, 2004
 

IAAF Challenging US Decision on Sprinter: According to the LA Times, the IAAF, the global governing body for track and field, is expected to lodge a formal legal challenge against a decision made by USA Track & Field in 2000. The decision cleared sprinter Jerome Young to compete in the 2000 Sydney Olympics, despite the fact that he had tested positive one year earlier for a banned substance. Normally, such an affirmative test would result in a two-year ban, which would have made Young ineligible for the Games.

The IAAF plans to take the case to the Swiss-based Court of Arbitration for Sport. If successful, Young and five other American runners could be forced to forfeit their gold medals from the 1,600 meter relay. Only two American athletes in history have won medals and then been forced to give them back. You can read more about the Court's procedures and recent case history on its official website.

 

CART Bankruptcy Goes Before Judge: The assets of CART (Championship Auto Racing Teams) and perhaps the future of open-wheel racing are in the hands of US Bankruptcy Judge Frank J. Otte today. Judge Otte will be administering the auction of CART's assets between two main bidders: a group of current CART team owners intent on keeping the series alive, and IRL president Tony George, who wishes to shut it down. Under the law, Otte has a great deal of discretion, but he must ensure that his decisions are best for CART's creditors, employees, and shareholders, in that order.

 

'He Hate Me' Trademarked by Smart: Last night's SportsCenter included a feature on Rod Smart of the Carolina Panthers, who played one season in the XFL under the moniker 'He Hate Me' (click here for picture). This gained Smart enormous exposure, both during after the days of the XFL, including yesterday at Super Bowl Media Day. ESPN's Chris Mortenson asked Smart if he had trademarked 'He Hate Me' and Smart replied, "Yeah, it's all mine."

I thought this was a joke until I visited the US Patent and Trademark Office website. It turns out that Smart has indeed trademarked 'He Hate Me' in category 41 (which includes entertainment services). The mark was published for opposition on July 15 of this year. If you go to this page and enter 'he hate me' in the search term box, you can pull up Smart's record.

After seeing all of the attention he has gained this season, Smart looks just that for trademarking the phrase. The question now becomes if he will be able to prove "continued use" as required to maintain the mark under federal law. Most likely, the answer is yes, as he has plans to produce some merchandise in association with the Super Bowl trip. You can read more about Trademark requirements here.

 

Gay Marriage and Sports: The Atlanta-area Druid Hills Golf Club has found itself in a battle between state law, city ordinances, antidiscrimination laws and the right of a private club to freely set its own policies. The country club has retained a lawyer after a city panel found that it discriminated by not extending spousal benefits to the partners of its homosexual members. No lawsuit has been filed as of yet and the city has until mid-February to decide whether to conduct further investigation. The club released this statement last week.

This case showcases the difficulties created as the country sorts out its stance on gay marriage. Georgia state law forbids homosexual marriage, but the city of Atlanta allows gays to register with the city as "partners." In addition, the city has an ordinance which forbids discrimination on the basis of sexual orientation. The club argues that it accepts homosexual members but, following state law, does not recognize them as "married" to their partners. At least one editorial has called upon the club to give their homosexual members spousal benefits, stating that there would be no real harm to the club in allowing in a few more spouses.

However, editorials such as these miss the point. If changes are to be enacted, individuals should petition their state government, not a private club. The club has a legal right not to extend such benefits and those opposed to the policy have every right to cancel their membership, go to another club, or protest against Druid Hills. However, making such end runs around the law shortchanges the important issue of gay marriage. If Druid Hills were to change its policy, this would not affect the other 99.9% of homosexual Georgians that are not a member. Real changes must be enacted on a state or national level. If they are not, then what is left is a hodge-podge of conflicting legislation that leaves individuals and organizations wondering exactly what the law is.

Tuesday, January 27, 2004
 

Eminent Domain and the Brooklyn Nets: A strong wave of protest has arisen after Bruce Ratner purchased the New Jersey Nets and announced his plans to move the team to Brooklyn, building a new stadium in the Prospect Heights area. As Denis Hammill writes, the great majority of those protesting are the approximately 800 residents of this area that would lose their residences to eminent domain.

Eminent domain is always a touchy policy, as it involves the most protected of all places, people's homes. However, the need for eminent domain is evident, as great complexes such as the World Trade Center, the Brooklyn Bridge and Rockefeller Center could not have been built without it. A strong anti-stadium group has arisen in Brooklyn, challenging the need to evict 800 residents to build a new sports arena. One can certainly sympathize with someone who stands to lose their home, no matter how long they have lived there or what the compensation will be.

On the other hand, Ratner and the developers claim that the new stadium area will result in 10,000 new permanent jobs, as well as incredible economic growth for the area. The residents of Brooklyn have been clamoring for a professional sports team for nearly 50 years and will undoubtedly pour money into both the franchise and its surroundings. In the long run, Brooklyn and its people will be better off because of the exercise of eminent domain.

Are there legal obstacles to using the eminent domain power to build a sports arena? Peter Sepulveda (11 Seton Hall J. Sports L. 137) has raised the question of whether the taking in this situation satisfies the "public use" component of the doctrine. As he argues, while the job and economic growth associated with such arenas clearly will benefit the entire community, these figures are often exaggerated, and the community as a whole may not benefit financially in the long run. Precedent, however, appears to be against the homeowners. Recently, the cities of Dallas, Seattle and Detroit have all won eminent domain cases needed to build new sports facilities. In this day and age, we can expect a lawsuit from the protestors over the ruling, meaning that a court will have the final say on interpreting and applying the Brooklyn eminent domain statute.

Even if the city's action is legal, however, some uneasiness remains that these middle- and lower-income families must give up what may be a prized residence in order to fund the dreams of the wealthy, who will own the team, play the games and sit in the luxury suites. I for one hope that the Nets (or whatever the team will be called) will remember this sacrifice and keep down the costs of tickets, so that those who gave their homes can at least cheer on the new Brooklyn team.

 

More on Chargers Lawsuit: The city of San Diego has responded to the lawsuit filed in November by the NFL's Chargers, arguing that the team has not met the financial-hardship requirements needed to get out of its stadium lease, and thus, should not be allowed to shop themselves to other cities.

The city has also sent letters to officials in Portland, Carson, Anaheim, Long Beach, the Rose Bowl in Pasadena and the Anschutz Entertainment Group in Los Angeles, warning them that the Chargers are under lease at Qualcomm Stadium and that the city would do what was necessary to protect its rights. The team has responded that it has not yet entered into any negotiations with other possible cities.

The lawsuit centers on the question of the Chargers's revenues. The trigger clause in Qualcomm lease allows the team to start a renegotiation period with the city and shop itself to other venues "if it meets a financial-hardship benchmark that measures the team's player salaries and benefits against a team salary cap." The team claimed in March that it exceeded this amount by $4.3 million; however, it has failed to release any detailed profit or loss statements to support this claim. The city's cross-complaint asks for an "accounting of the books and records" to determine the accurate amount under the agreement.

In addition, if the court finds that the renegotiation period was indeed triggered, it must then determine the ambiguous language in the contract that deals with the city's obligations to offset the Chargers' financial hardship. The Chargers have asked that the city build them a new stadium, or pay the team an annual fee of $20 million coming from parking and concession revenues that are not shared with the league.

The city's answer and cross-complaint.

 

No Super Bowl in Mexico: The Super Bowl will not be shown on terrestrial Mexican television for the first time since Super Bowl I, the Sports Business Daily (subscription required) reports. The NFL and the main Mexican networks, which were also unable to reach an agreement for a regular season contract, apparently got nowhere in negotiation sessions over the past few weeks.

Sunday, January 25, 2004
 

More on Georgia Student Case: The news coverage and public outrage over the Marcus Dixon case continues to grow. A group called "Act4Justice" has a "Save Marcus Dixon" website, which invites you to sign a petition and donate money to Dixon's legal fund. It also has a question and answer with the imprisoned man. You can also visit helpmarcus.com, which tells more about the case and asks for support. BET presents both sides of the case and then asks the reader to decide: Did the punishment fit the crime?

All of this helps to highlight the incredible influence that sports can have on the legal system. No matter your thought on this case, it is almost certain that had Dixon not been a star athlete, he most likely would be serving his prison sentence with little fanfare and almost no media attention. For certain, a number of advocate groups in Georgia would have taken up his case, but would it have made any difference?

The reasons for this seem fairly straightforward. To begin with, sports and sports stars already live squarely in the spotlight of the media. It is natural that if a legal matter affects such a figure, more attention is paid to it than normal. This can also be seen when dealing with entertainment figures, politicians and other high-profile individuals. Moreover, Dixon has been consistently portrayed as a "role model" and an African-American male that raised himself up from a less than beneficial childhood to become a great student and stellar athlete. The role that sports may have played in this cannot be underscored. Athletes are often idolized by society at large, and those that excel in athletics are viewed as success stories. In addition, the pride and sense of accomplishment felt by a star athlete can often give a confidence that may be lacking from a less-than-privileged background.

No matter what the reason, if Dixon does indeed receive a lesser sentence, he can give a large amount of thanks to his natural athletic talent. Whether this is right or wrong is another debate, but it showcases that sports can impact the legal system as much as the law impacts sport.

 

Knight Appeals Dismissal of Lawsuit: Former Indiana and current Texas Tech basketball coach Bob Knight is asking an Indiana Court of Appeals judge to reinstate his lawsuit against his former employer. Knight claims Indiana breached his employment agreement by failing to follow proper termination procedures.

On a sidenote, Myles Brand is also named in the suit. At the time, he was the President of Indiana. He currently is the Commissioner of the NCAA.

You can read about the initial dismissal here.

Friday, January 23, 2004
 

Where Did the NHL's Labor Problem Come From?: The Sports Business News has a very good summary of the rapidly changing labor conditions in the NHL that are leading towards a work stoppage.

 

What's In a Name?: Bruce Ratner completed his purchase of the New Jersey Nets on Wednesday and plans to move the team to Brooklyn no later than 2009. But will the team change its name? The N.Y. Post has an article mentioning that the New Jersey Sports Authority will ask the NBA to allow it to keep the name "New Jersey Nets." According to the Trademark Blog, though, the New Jersey Nets trademark is owned by New Jersey Basketball, LLC, and it is not certain what will happen to this entity following the sale.

The Trademark Blog also has a listing of who owns numerous domain names combining "New York," "Brooklyn" and "NY" with "Nets."

In addition, the same blog has a very insightful post which shows that a team does not abandon its trademarks when it relocates to another city. The main case on record involves the Baltimore Colts, the NFL team that moved to Indianapolis in the 1980s but kept the "Colts" name.

Thursday, January 22, 2004
 

More on Georgia Student Sex Case: Today the Georgia Supreme Court heard arguments in the case of Marcus Dixon, the former Georgia high school athlete who was sentenced to ten years for sexual assault of a minor. The case, discussed in this earlier post, stems from an incident in which Dixon, who was 18, had sex with a girl three months shy of her 16th birthday. The girl claimed the incident was rape, a charge on which Dixon was acquitted. However, instead of being sentenced on statutory rape, which would have brought one year in prison, Dixon was handed down the much-harsher penalty for his conviction on aggravated child molestation.

The issues raised in this case include mandatory sentencing guidelines, cruel and unusual punishment and the racial tensions that still exist in many areas of the South. Dixon, and many witnesses on his behalf, claim the sex was entirely consensual, the victim's bruises existed before the assault, and that the victim accused Dixon of rape in order to avoid the wrath of her father, who has been called a racist and accused of beating his daughter for smoking.

The fact also remains that Dixon was acquitted on charges of rape, sexual battery, aggravated assault and false imprisonment, he is still classified by the prosecuting attorney as a "sexual predator." While Dixon's past is not perfectly clean (he once exposed himself in class and improperly touched a female student), these actions coupled with a jury finding that not enough evidence existed to support a rape conviction hardly make Dixon a "predator." If, as the jury said, there was not enough evidence to support rape, then this must be looked at as consensual sex. Does anyone deserve to spend 10 years in jail for consensual sex, no matter what his or her past?

Dixon may not be completely innocent in this case, but if our criminal justice system is to have any legitimacy, charges should not be trumped up to replace "unfavorable" jury verdicts. Consensual sex between high school students is not aggravated child molestation, and if the Georgia statute classifies it as such, then the Georgia Supreme Court should strike it down. In truth, however, this charge is being used to substitute for rape in order to fulfill prosecutorial ambition or a judicial desire to circumvent the jury's decision. The Dixon case no doubt represents numerous less-publicized cases in which defendants fall prey to similar misdeeds. As sad as it is, if Dixon were a female, he would not have been treated the same. If he was white, or if his victim had been black, he would not have been treated the same. And if he had not been a star athlete, he probably would have been treated worse.

The Georgia Supreme Court must put a stop to such end-runs around the criminal legal system. If it does not, then "innocent until proven guilty" will become merely a phrase, and not a cornerstone of American justice.

More from the New York Times, ESPN and the Fulton County Daily Report.

A number of editorials have come out in favor of Dixon, including ones by Robert Becker and Marian Wright Edelman.

In addition, the Children's Defense Fund has filed an amicus brief in the case. You can view a summary here.

 

Baseball Arbitration on the Horizon: The Sports Business News has a report on the upcoming baseball arbitration cases, including a breakdown of the key players on each team that are up for arbitration.

The Blue Jays avoided arbitration with Roy Halladay by signing him to a four-year deal on Thursday.

 

Mets Can Register Logo in Britain: The Britain Patent Office has ruled that the New York Mets can register their trademark in the United Kingdom, despite objections from the British Meteorological Office (the "Met Office"). The patent officials ruled that there was little chance of the British public confusing the two entities.

Wednesday, January 21, 2004
 

Judge Closes Bryant Hearing: In response to requests made earlier this month, the judge in the Kobe Bryant case has decided to close this week's key hearing to the public. The hearing will decide whether the alleged victim in the sexual assault case has given up her medical privacy rights.

 

Update on McCourt's Bid to Buy Dodgers: Frank McCourt is meeting with MLB lawyers today to work more on the financing for his bid to buy the Dodgers. Both sides have said that the negotiations are not effected by Eli Broad's bid to buy the team should McCourt's plan fall though.

Read more here and here.

 

More on Bloom: Many more writers have chimed in on Jeremy Bloom's decision to challenge the NCAA and accept skiing endorsements while continuing to play college football. See my earlier post.

ESPN's Mark Kreidler thinks that Bloom has a losing case. The Boulder Daily Camera also thinks that Bloom will lose, but that his case will pave the way for NCAA reform.

On the other side, Kevin Blackistone of the Dallas Morning News has an insightful column saying the NCAA should make an exception in this case. Bernie Lincicome calls the NCAA "a big bully" that should let Bloom ski.

In response, the NCAA has said that it plans to address possible changes to the rule, Bylaw 12.5.2.1, but no earlier than August 2005.

Tuesday, January 20, 2004
 

Bush Gives Anti-Drug Message in the State of the Union: In his State of the Union address, President Bush called upon leaders of professional sports leagues and teams to stop the use of performance-enhancing drugs by their athletes. As role models, Bush said, professional athletes must set examples that goals should be achieved through hard work, not by cheating.

Update: More from Reuters, ESPN and the Sports Business Daily (subscription required).

Major League Baseball has also backed the President's message. You can view Commissioner Selig's message here. Numerous worldwide anti-drug officials have also applauded the President's strong stance.

However, it is not so clear that the player's unions were quite as supportive of the message. Said Gene Upshaw, President of the NFLPA, "I don't know who Bush is talking about, but he's not talking about the NFL, because we've already dealt with steroids, performance-enhancing drugs and all of that." Read more from the Associated Press.

You can view the entire text of the speech here.

 

F1 Teams Theaten Not to Race in Europe: Owners of F1 racing teams have threatened not to run in European races unless they are exempted from new community-wide arrest warrants that could be used against them if a driver is killed on the track. The owners of Aryton Senna's team, a driver killed in the Monaco race in 1994, were acquitted of manslaughter in connection with the accident, but may face a new hearing.

Monday, January 19, 2004
 

Bryant Case May Spark Reform: After a woman who accused Kobe Bryant of rape had her name revealed in the media, leading to death threats and hate mail, a few Colorado legislators are considering proposing legislation that would tighten legal protection for people in similar situations. Lawmakers feel that the lack of extra protection could have a "chilling effect" on individuals coming forward.

 

Details on NHL's Desired CBA: Larry Brooks of the New York Post exchanged emails with the NHL's CLO, Bill Daly, and now reports on what the NHL seeks in a new collective bargaining agreement. In summary, the league hopes to implement a "soft cap" of $31 million through incentives and luxury taxes, rather than a "hard cap" similar to the one in the NFL.

You read more in the Sports Business Daily (subscription required).

 

Bloom to Confront NCAA Head-On: Jeremy Bloom, the University of Colorado wide receiver and Olympic freestyle skier, has decided to continue playing college football and accepting endorsements from his skiing, which is in direct violation of NCAA rules. Under the NCAA guidelines, an athlete may not accept endorsements, even if it is for a sport in which he does not compete collegiately. However, Bloom wishes to play college football as well as training for skiing, which requires endorsements to fund the expensive training. Bloom has filed suit against the NCAA, claiming the rules unjustly limit his right to pursue his skiing career.

Bloom has also spearheaded the California Senate Bill 193, titled the "Student Athlete Bill of Rights," discussed in this earlier post.

As I discuss in my forthcoming article in the Harvard Journal on Legislation, the NCAA must take steps to deal with this growing problem. While the organization must certainly preserve the importance of amateur athletics, it must also keep its rules from applying its rule in an arbitrary manner, regardless of the situation. There is little, if any, reason that Bloom's acceptance of skiing endorsements would jeopardize his amateur status as a college football player. The NCAA looks decidedly two-faced as it ups endorsement and television deals while preventing a tight end, who wants to play football merely for the love of the sport, from also pursuing his talent in a sport requiring financial support. Bloom's decision will force the NCAA to confront this dilemma, and hopefully, the organization's leadership will reach a compromise that protects amateur athletics, as well as the ability of its athletes to pursue outside goals.

Update: At least one writer thinks that Bloom is destined to fail "because the world is not always fair."

Sunday, January 18, 2004
 

Runner Challenging Drug Appeals Process: The New York Times has an article on Regina Jacobs, one of the nation's top female middle-distance runners, who has tested positive for THG, the banned designer steroid. Jacobs is challenging the process by which athletes can appeal the drug suspensions, saying it is biased against the accused athletes. An accused athlete receives an arbitration hearing in front of a three-member panel. One member is chosen by the athlete, one member by the anti-doping agency and one member selected by the American Arbitration Association. However, Jacobs and her attorney claim, the pool of potential arbiters is chosen, approved and maintained by the anti-doping agency, improperly biasing the member against the accused athlete.

 

Clarett Wants to Play for Ohio State: The AP is reporting the Maurice Clarett wants to play for Ohio State next season, even if he wins a lawsuit he has filed against the NFL seeking to become eligible for the draft this April. The running back was suspended for the 2003 season, but not from the university, for accepting improper benefits from a family friend and then lying to investigators. On Monday, Clarett plea bargained in the criminal case to a lesser charge to avoid serving any jail time.

 

New Definition of 'Rivalry': The AP is reporting that Phillip Fulmer, the head football coach at the University of Tennessee, provided the NCAA with damaging information regarding their investigation into the University of Alabama three years ago. The evidence surfaced as part of a lawsuit in which two former Alabama coaches are suing the NCAA for falsely accusing them of committing numerous recruiting violations. The alleged violations led to a five-year probation punishment for the school's football program and criminal indictments against the two coaches.

 

Free Agency in the WNBA: The Los Angeles Times has a report on the expected rise of free agency during this WNBA off-season. Last year, the impact of free agency was muted due to a labor dispute and last minute signing of the new collective bargaining agreement.

 

Players File for Arbitration: Sixty-five players have filed for arbitration as the Major League Baseball deadline passed on Friday. The most notable names are Roy Halladay of the Blue Jays and Eric Gagne of the Dodgers, both of whom won the Cy Young this past year in their respective leagues, as well as Cardinals slugger Albert Pujols. The number of arbitration filings fell for the third straight year and was the lowest since 1999. If players and teams do not reach agreements, the hearings will be held in February.

Friday, January 16, 2004
 

Cavaliers File Suit Against Fratello: The Cleveland Plain-Dealer, via the Sports Business Daily, is reporting that the Cleveland Cavaliers have filed a lawsuit against former coach and TNT analyst Mike Fratello, claiming they should not have to pay him the full $3 million in deferred compensation owed for the 1999-2000 season. The team contends that "because he pursued other opportunities" and did not "devote full-time effort and attention, solely and exclusively, to his Cavaliers' coaching duties," they do not have to pay him the full amount of deferred compensation.

 

Broncos Want Player's Bonus Returned: The NFL Management Council, on behalf of the Denver Broncos, has filed a grievance against defensive tackle Daryl Gardener seeking return of the $5 million signing bonus promised him in last year's free agent signing. The team wants the $3 million it paid Gardener last year returned and is refusing to pay the additional $2 million it owes the player this year, citing a clause in the contract that says the bonus must be refunded if conduct "detrimental to the team" occurs in the first year of the deal. In this first year, Gardener has consistently fought with the team and publicly berated coach Mike Shanahan on Denver talk radio, leading to a three-game suspension, and ultimately his placement on the injured reserve list for a non-football injury.

There is precedent for the team's actions. In 2001, the Broncos received back $400,000 of a $500,000 signing bonus it paid to wide receiver Eddie Kenison after the team claimed that the player quit the team the night before a key game. However, the signing bonus at issue in this case is much larger, and thus, could have a much greater impact.

Gardener, through the Player's Association, has also filed a grievance against the team, challenging his suspensions.

 

Freddy Adu and Child Labor Laws: In case you are curious (as I was), there apparently will be no problems with child labor laws for Major League Soccer and Freddy Adu, who was taken with the first-overall pick in today's MLS draft. The issue, surprisingly, has not been addressed in any stories about Adu, which may reflect the lack of interest either in the topic or in soccer generally. The Washington Post's Jason La Canfora did write about the issue in this chat session (scroll about 2/3 of the way down the page). In addition, not everyone is convinced of the legality, though I am sure the issue was firmly resolved before the draft and contract signing. If anyone has come across any better articles on the matter, I would be very interested in seeing them.

Of course, this does not deal with the issue of whether a 14-year old should be playing professional sports, despite its legality. How young is too young in the world of professional sports? With the success of Lebron James, it seems that high schoolers entering directly into the NBA draft will be something that fans will have to live with for the years to come. As for players still of high school age, much will depend on the success or failure of Adu. He has the benefits of playing soccer, meaning that the spotlight will not shine as much on him. However, people will be watching to see how someone who cannot drive or watch an R-rated movie and in 7 years away from drinking handles the life of a sports star. As anyone has been 14 knows, that age brings with it incredible difficulties and so Adu must be strong mentally and emotionally in order to succeed.

 

Mets May Have Illegally Viewed Guerrero's Records: The New York Post, via Espn.com, is reporting that the Mets may have reviewed the medical records of Vladimir Guerrero, the free agent outfielder that ultimately signed with the Angels, during the team's negotiations with the player. If so, this would violate the league's collective bargaining agreement, which allows teams to speak with doctors, but not review medical records, without a player's consent. The exception to this is a trade situation, which free agency is not. The Player's Association will decide in a few days whether it will choose to file a grievance in the matter.

 

Athlete Fights Sentencing Law: The Georgia Supreme Court will hear a case next week stemming from a sexual encounter between an eighteen-year old star athlete and a fifteen-year old female friend. The case centers on teenage sex and federal mandatory minimum sentencing guidelines, a subject so novel and newsworthy that the arguments will be broadcast over the Internet. You can read more here.

Thursday, January 15, 2004
 

Bills Staying in Buffalo?: The Buffalo News has an article that discusses the future of the Bills, whose 15-year lease at Ralph Wilson Stadium allows the team to leave before next season. However, the team has a number of other contractual obligations to sponsors, many of them local, that would be violated by a move.

This situation highlights the difficulty of small-market teams in an increasingly financial sports world. Outside of those few teams with incredible history and tradition (i.e., Green Bay Packers), the next era of professional sports could unfortunately bring an end, or at least a relocation, for a number of small-market teams. In Pittsburgh, the Penguins are struggling and the Pirates have not reaped the benefits they hoped a new ballpark would bring. The Royals in Kansas City seem to face financial difficulties on a yearly basis and the Twins in Minneapolis have been earmarked for contraction or movement on a number of occasions. It remains to be seen whether professional leagues can reach revenue-capping and -sharing agreements that are legal, ensure competitiveness, and allow these small-market teams to survive.

 

More on the Super Bowl 'Ambush': As I discussed in this earlier post, a number of companies that are not official sponsors of the NFL or the Super Bowl will look to capitalize on the game through marketing in public areas around Reliant Stadium and other NFL sites. The Wall Street Journal (no link to article available) has an article today discussing this in greater detail, and focusing on companies such as Gateway and Papa John's.

 

Reebok Looking at Licensing Deal with Baseball: The Boston Herald and Sports Business Daily report that Reebok is eyeing a potential licensing deal with Major League Baseball. Reebok already has deals with the NFL and NBA. Baseball currently has deals with a number of apparel manufacturers, including New Era and Nike.

Update: Reebok and Major League Baseball have confirmed that talks are on-going, but stress that the proposed deal would be smaller and more focused than the manufacturer's deals with the NBA and NFL. Major League Baseball signed a number of apparel deals last summer that will run from 2005-2009, including with Nike and New Era.

Wednesday, January 14, 2004
 

NFL Seeks to Expand Minority Rules: The NFL is considering extending its minority hiring guidelines, currently in place when a team seeks a new head coach, to include key front-office positions. However, some Diversity Committee members are worried about this extension, as front office hirings are often done in-house and without the broad searches that often accompany the hiring of a new head coach.

I expressed my concerns with the actual effect the minority hiring guidelines would have in this earlier post.

Tuesday, January 13, 2004
 

Supreme Court Declines to Hear Twist Case: The Supreme Court yesterday denied cert in the case between "Spawn" comic book creator Todd McFarlane and former NHL player Tony Twist. Twist sued McFarlane for misappropriation of his name and right of publicity, arguing that the character Antonio (Tony Twist) Twistelli, which was based on Twist, hurt his image and cost him endorsement deals. A Missouri jury awarded $24.5 million in damages, but the amount was overturned by a Missouri court of appeals and the state's Supreme Court has ordered a new trial.

You can read Eugene Volokh's amicus brief in the case, which he wrote on behalf Michael Crichton, Larry David and others. Read his post about the case on the Volokh Conspiracy. The Trademark Blog also has an interesting post.

The Missouri Supreme Court opinion and Missouri Court of Appeals opinions are also available. The appellate court opinion in particular is a very good read.

It seems that McFarlane doomed his case when he admitted several years ago that the character was based on Twist. In addition, the lack of historical significance in a comic book character would distinguish this case from ETW v. Jireh. In that case, an artist painted a portrait, The Masters of Augusta, which prominently featured Tiger Woods over a backdrop of past Masters champions. You can see the print here (scroll down). Woods sued, claiming the work infringed on his trademark rights and right of publicity. The artist countered that the 1st Amendment protected the work, as it depicted an historical event of which Woods was a part. The district court granted summary judgment for the artist and the Sixth Circuit affirmed.

You can read the full opinion, or a summary of the court's findings. The court emphasized that the work contained "significant transformative elements" that made it worth of 1st Amendment protection and minimized the economic impact on Woods' protected right of publicity. Because the work "does not capitalize solely on a literal depiction of Woods" but rather "consists of a collage of images . . . which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event," it is entitled to "the full protection" of the 1st Amendment.

 

Do Bills' Assistants Have Jobs?: The NFL Coaches' Association has sent a letter to the Buffalo Bills seeking an immediate decision on the status of its assistant coaches. After head coach Gregg Williams was fired, no decision was made on the fate of his assistants for next season. Williams was hired by Joe Gibbs to be the new Redskins defensive coordinator and he wishes to bring certain assistants with him, but NFL rules allow teams to block the movement of assistants under contract. The Coache's Association has asked that the Bills either release the assistants from their agreements or guarantee their employment for next season.

 

Williams Trial Begins: The trial of Jayson Williams, the former NBA player charged with the shooting death of his limo driver, begins today in New Jersey. Williams maintains the shooting was an accident, though several witnesses will testify against him as part of plea agreements related to tampering with evidence at the crime scene.

 

Conference Realignment on Hold: The NCAA realignment, which will affect the ACC, Big East and Conference USA, among others, will not take place this fall as originally hoped. The other conferences were unable to reach an agreement with C-USA, whose leaders were seeking a reported $10 million to move the shift up one year.

Monday, January 12, 2004
 

Cubs Reach Deal with Rooftop Owners: The Chicago Cubs have reached a deal with owners of 11 of the 13 buildings on which there are rooftop seats overlooking Wrigley Field. The twenty-year agreement calls for the owners to give the team 17 percent of their revenues, which could be as much as $2 million per year.

The Cubs sued the owners in December of 2002 for stealing the team's product, copyright infringement and unjust enrichment at the Cubs' expense. The lawsuit followed a failed attempt by the Cubs to expand the bleachers at Wrigley by 2000 seats. The team has not completely shelved the idea of expansion, but now would have to compensate the owners of the buildings if it did so. As one person said, by reaching this deal, the Cubs achieved a "de facto expansion" and will get $2 million "for doing nothing."

Two of the owners declined to join the agreement and will proceed to trial. Their case pits the tradition of rooftop seating versus the modern economics of pro sports. Twenty years ago, people sat for free in lawn chairs. Now, however, with $15-$17 in admission being charged, I believe the team has a legitimate claim that their product is being misappropriated. It is unfortunate that the team will seek to prevent people from supporting the team, but it is a result of building owners seeking to profit from what was once a harmless, and very unique, tradition.

You can read more about the rooftop tradition here.

Update: Euguene Volokh offers a very insightful look into the Cubs' copyright and misappropriation claims on his blog.

 

Update on Sale of Dodgers: In an update to an earlier post, the sale of the Dodgers to Frank McCourt is now expected to be approved by January 31.

The Sports Business Journal (subscription required) reports that McCourt would borrow money that would cover the entire $430 million purchase price through a mix of team and private loans from sources such as the Bank of America, the MLB credit facility and News Corp. McCourt would teams play back the loans in the first few years by selling off some of his Boston real estate.

 

NHL Stoppage Could Doom Teams: NHL Execustive Bill Daly is uncertain that all thirty teams would survive a work stoppage, a factor that could impact the behind-the-scenes labor negotiations.

 

NBA to Europe?: The Sports Business Daily (subscription required) is reporting that the NBA is working towards expanding into Europe, led by the former president of Madison Square Garden and a team of international investors.

I wrote a paper on the feasibility of this move a few years ago. My elementary conclusions were that such an expansion would require 4-6 teams in Europe, so that teams could travel for a "European swing," much as they do a West Coast swing, and so that the Europe division could play each other more, reducing travel costs. I also found that there will be some initial growing pains, as many Europeans are very partial to their European league teams and may be reluctant to switch, at least at first. However, the NBA continues to grow in popularity worldwide, and the fact that it features the best players from around the globe will most likely make a European venture successful.

 

Patent Suit Filed Against ESPN: Also in Andrews this month, InternetAd Systems has filed a patent infringement suit against ESPN, Travelocity and the New York Times for alleged violations of four patents the company owns. The four patents are: No. 5,572,643 (Web Browser with Dynamic Display of Information Objects During Linking), No. 5,737,619 (World Wide Web Browser With Content Delivery Over an Idle Connection and Interstitial Content Display), No. 6,185,586 (Content Display During Idle Time as a User Waits for Information During an Internet Transaction), and No. 6,457,025 (Interstitial Advertising Display System and Method).

 

Update on Stringer v. NFL: The widow of Korey Stringer, the Vikings tackle who died in 2001 from heat exhaustion at training camp, has filed an opposition to motion to dismiss in the Southern district of Ohio. The NFL claims that, due to the collective bargaining agreement, her complaint can only be resolved through arbitration. Stringer argues, however, that the CBA does not cover this situation, and thus, is not applicable. This month's Andrews Entertainment Industry Litigation Reporter has more. You can also read my earlier post about the Stringer case here.

You can peruse the collective bargaining agreement, but be warned, it is 255 pages long. Probably the two most relevant articles are X (injury grievances) and XLIV (medical care and treatment).

The CBA is also being challenged in the Clarett case. You can read my earlier posts here and here.

Friday, January 09, 2004
 

Celebrity Phone List Published: In a move with numerous potential legal implications, an AP employee accidentally sent a list of 750 sports figures' home and cell phone numbers out over the wire earlier today. The AP quickly noticed the mistake and sent a "kill" message, but the list had already been published on the Internet. The names on the list include Hall of Famers, current stars, owners, members of the media and President Bush.

 

USC v. LSU for National Championship?: Gateway, the computer manufacturer, has offered LSU and USC $30 million in scholarships and computer equipment to play a National Championship game the weekend before the Super Bowl. As of yet, neither team has commented on the offer, but the NCAA quickly rejected the proposal. Not yet defeated, Gateway has called on the NCAA to vote on the proposal at its National Convention.

 

Patriots on the Look-Out for Scalpers: The Boston Herald reports that the Patriots are monitoring e-Bay and other Internet sites, looking for season ticket holders that are re-selling their tickets for tomorrow's play-off game. The team has said that anyone caught scalping could forfeit their season tickets, forcing them to go to the back of the 50,000 person waitlist.

 

Subpoenas Issued for Sports Websites: Via the Sports Business Daily (subscription required), the Justice Department has issued a number of subpoenas targeting, among others, sports information websites, as part of an investigation into Internet gambling.

 

Update on Playmakers: The Sports Business News has an article describing the on-going debate over whether or not to bring ESPN's Playmakers back for another season. You can also read my earlier post on the subject.

 

Compensation for Conference Moves: Andy Katz has an article about conference re-alignment and the $10 million payment to Conference USA that will make the whole thing possible.

 

More on Price v. Sports Illustrated: Law.com has an article discussing a judge's order that Sports Illustrated reveal its confidential sources that form the basis of former Alabama coach Mike Price's defamation suit against the magazine. The article draws a comparison between the SI case and the case of Richard Jewell, the man who was accused of the Olympic Park bombing and has been pursuing a libel suit against the Atlanta Journal-Constitution for seven years.

You can read my earlier post about the SI case here. Law.com has articles about Jewell's case, the US Supreme Court denying certioari, and the original Georgia Court of Appeals ruling in the case.

The case, Jewell v. Atlanta Journal-Constitution is available at 251 Ga. App. 808 (2001).

Thursday, January 08, 2004
 

Paying College Athletes: The Oakland Tribune has an article about California Senate Bill 193, which would mandate certain rights for student-athletes in California public universities, but also violate numerous NCAA policies.

You can read more about SB 193, along with Nebraska Legislative Bill 688, which proposes to pay a stipend to college athletes, in my piece, "Payment for College Football Players in Nebraska," which will be published in the Harvard Journal on Legislation next month.

 

The NFL "Trigger" for Relocation: The San-Diego Tribune discusses the highly complex formula of deciding when an NFL team may seek to relocate. Basically, the formula says a team can attempt to move when its costs for salaries and benefits are greater than 75 percent of the gross revenues of the average NFL team. But it is infinitely more complicated than that.

 

More on Rose: Jayson Stark has more on why Rose's plan to get reinstated to baseball has taken a turn for the worse. You can read more about the Rose admission here.

 

Legal Implications of the Gibbs Hiring: Joe Gibbs was hired yesterday to coach the Washington Redskins, a team he left in 1992. Since that time, Gibbs has become a very successful NASCAR owner and is the CEO of Joe Gibbs Racing. Gibbs has said he plans to continue owning the team, but this could possibly be affected by NFL rules limiting financial involvement in other sports properties. USA Today and the Washington Post have stories.

This raises a very interesting legal question. How much can the NFL limit the ability of one of its owners to own a stake in another sports property? There seem to be definite liberty of contract, and possibly even antitrust issues at stake. It does not appear to be a problem in this case, since Gibbs's sons own 98% of the racing team, but it could arise with a future owner.

 

Former Baylor Player Sues Bliss: Former Baylor basketball player Chad Elsey has sued former coach Dave Bliss for $100,000, claiming that the coach broke a promise to help him get into law school and to pay for his tuition. According to Elsey, who is a student at the University of Tulsa law school and filed the suit on his own behalf, Bliss made the promise during a recruiting visit and said that he could get around the NCAA rules.

The Dallas Morning News has more.

Wednesday, January 07, 2004
 

Interesting Tidbit: This isn't legally-related but I found it interesting. The New York Times has an article today that details the content of the 3 hour and 43 minute Sugar Bowl played on Sunday. It turns out that viewers saw only 16 minutes and 28 seconds of live action football-- only 7 percent of the broadcast! The rest was consumed with on-screen graphics, replays, coaches shots, commercials, etc.

Even worse, the Colts play-off game victory over Denver had only 12 minutes and 18 seconds of live football action. This makes TIVO seem really worth the money.

 

Sports and Zoning Law: Even zoning laws can intrude on sports. This article discusses a fight over the zoning of the land on which a golf course sits. Currently it is zoned as agricultural, but developers want to change the zoning to commercial so that the land can be re-developed. Thanks to How Appealing for the link.

 

PGA Media Fight Goes to 11th Circuit: The lawsuit against the PGA Tour concerning the reporting of real-time golf scores will be argued in the 11th Circuit on January 14. Morris Communications, which owns several newspapers, argues that the Tour violated anti-trust laws when it forced media outlets to delay the reporting of real-time scores in order to gain access the PGA's press center. Morris argues this was done so that the Tour's own website would have exclusivity in the reporting of real-time event scores.

The district court judge threw out Morris' claims, concluding that the publisher "free-rides on the PGA Tour's efforts in compiling the scores." In its appeals briefs, Morris has argued that it does not free-ride on the Tour's core business of promoting golf tournaments and that the tour does not have any intellectual property right to golf scores.

This is the second golf-related case the 11th Circuit has heard in as many months. The other concerned the right of women's groups to protest outside of Augusta National during the Masters.

 

Arrington Signs Group Licensing Pact: The Sports Business Daily is reporting that Redskins linebacker Lavar Arrington has ended his holdout as the only player who refused to sign the NFL Player's Association Group Licensing Pact, an agreement which allows the NFLPA to make deals using his name, number, voice and image in licensed deals involving six or more NFL players. Arrington had previously filed lawsuits against Nike and adidas, asking that the companies cease selling Arrington jerseys, and against three trading card companies for producing cards bearing his likeness without his permission. It is unclear what caused Arrington to change his mind and sign the agreement.

 

Media Out in Bryant Hearing?: Prosecutors and an attorney for the accuser of Kobe Bryant have requested that a hearing detailing the accuser's medical history be closed to the media. Bryant's own attorneys have asked that a different hearing be closed to the media because the evidence introduced could prejudice their client at trial.

 

Richardson Seeks Dismissal of Counterclaim: Nolan Richardson, the former men's basketball coach at the University of Arkansas, has objected to a counterclaim filed by the University that states that Richardson violated the terms of the buy-out of his contract by filing his lawsuit against the University. Arkansas seeks either a dismissal of the lawsuit or a return of the $800,000 paid to Richardson as part of the agreement.

 

Rose Admits to Betting on Baseball: Unless you have been living in a cave, you know that Pete Rose has a new book out admitting that he bet on baseball and on his own team, but denying that he ever bet against his own team.

ESPN has an article here, including an assertion that Rose bet from the clubhouse.

FindLaw has an article here.

The New York Times has an editorial today calling the confession "lame."

The Sports Business News has an article stating that Rose's confession should not be trusted.

The fact is that Rose took 14 years to admit what everyone already knew-- he bet on baseball and deserved the ban handed down by Major League Baseball. I am not certain why this admission should change anything. If a man convicted of murder confessed 14 years later, he would not be released from prison. In addition, he would not receive a reduced sentence for "coming clean." Rose tarnished the game in his actions, in his banishment and now in his confession. Peter Gammons said it best and I paraphrase: Why would someone who claims to love the game of baseball time his confession to overshadow this year's Hall of Fame inductions? The answer: Pete Rose has always cared more about himself than about the game of baseball.

So, should Rose be inducted into the Hall of Fame?

Gammons has reversed his initial thought and now says he will vote no if Rose is on the ballot. A number of other voters would also vote no, and even the Cincinnati Enquirer states that his confession does not change a thing. Others, however, still argue that his playing career should be separated from his subsequent actions.

In his admission, Rose has proven once again that he just does not understand the situation and thinks himself above the game of baseball. Many people, like Gammons, once believed that if Rose came clean, they would vote him into the Hall of Fame. However, the manner of Rose's admission, which focused much more on making money than making things right, have infuriated those voters who supported Rose and threatened his chance of entering into the Hall.

As for this writer, I believe that Rose deserves entry as a player, but his plaque should include that he was banned from the game in 1989. This would allow all Hall visitors and history to reflect on Charlie Hustle the player while always remembering that he became Charlie Hustler the manager.

I think a similar plaque should be erected for Shoeless Joe Jackson, whose supporters have been following the Rose story carefully.

Tuesday, January 06, 2004
 

College Bands Drowned out by Marketers: The Wall Street Journal (no link available) has a very interesting article today about the increasing influence of in-game marketing promotions and the resulting impact on college pep bands. Many bands, including the Louisville band profiled, have had their in-game playing time cut in half to make way for free throw contests, on-screen ads and other promotional gimmicks that can cost as much as $15,000 per spot. Now, when the home team is in the midst of a comeback or the crowd is fired up, a timeout will bring a commercial, not a song from the pep band designed to fuel the crowd's energy. "It's like throwing a wet blanket on the crowd," said the Louisville band director.

This represents just one more manner in which "revenue-producing" college sports (i.e. men's basketball and football) are becoming lesser pro leagues, complete with all of the annoyances of professional basketball and football games. Even at Cameron Indoor at Duke (where I went to school), the number of in-game promotions has increased, though it is (thankfully) tempered by the lack of a video screen. Is it any wonder that college athletes are pushing to be paid, or are desperate to leave early for a paycheck? The players are not dumb-- they see that they are merely pawns in the "minor" leagues of the NBA or NFL. Where as the college game used to be a different experience, complete with school spirit and inspiring bands and cheerleaders, it is fast becoming a lesser clone of the pro leagues. As a result of this, players see no reason to stick around in a "lesser" pro league and head instead for the real deal. To keep college players, universities must give them a reason to stay: namely, a unique college athletic experience that does not compete with, but rather stands out from professional sports.