Sports Law Blog
All things legal relating
to the sports world...
Monday, May 31, 2004
 

Quick Hits: Here are a couple of interesting items that are not worth an entire post:

FindLaw offers a book review of Alan Shipnuck's The Battle For Augusta National. The verdict: well-written, but perhaps not enough material to warrant a 300+ page book.

Former Carolina Panthers player Anthony Bright has sued the team and wide receiver Steve Smith, claiming his NFL career was ruined after a film-room fight in 2002.

The New York Times ran an interesting article over the weekend analyzing the value of naming rights deals to the company's that spend millions to put their names on ballparks. ESPN has a nice summary of naming rights deals in sports.

The Pittsburgh Steelers have filed a motion to dismiss in the case alleging that NFL antitrust violations have enabled teams to extract big public subsidies from cities for new stadiums. You can read more on this type of case in this earlier post.

Thursday, May 27, 2004
 

More on Colorado and Title IX: Erik Brady of USA Today has an article on the impact the Colorado recruiting scandal could have on other schools.

    Title IX, the law that bans sex discrimination at schools receiving federal funds, is best known in its sports context for a three-part formula that determines if schools are fairly apportioning opportunities to play. Less well known is that schools can be sued for monetary damages under Title IX for knowingly allowing sexual harassment to take place in any setting, including athletic ones.

    ****

    "We are watching the case closely," says Tom Hutton, an attorney for the National School Boards Association in Alexandria, Va. "It depends on how narrowly or how broadly the case is interpreted. But if the overall environment at a school can serve as actual notice (of sexual harassment), that would be new."

This would indeed be a radical shift from the conventional views on Title IX. It might also stray from the original intent of the legislation, which was to ensure equal opportunities for men and women. Few, if any legislators envisioned Title IX as a backdoor for sexual harassment claims. The legal arguments in this case could get very interesting.

 

Law Protects Youth Sports Officials and Coaches: As a youth baseball umpire, I am especially interested in this story out of Alabama. A concerned legislator helped pass a law two years ago that increases the punishment for any fans, parents or others that harass, menace, threaten or batter an umpire or coach. Thus far, the law has not had to be used, but it should make the men in blue feel a little safer.

 

NHL Labor News: As the NHL season comes to a finish with the Stanley Cup Finals, the labor stoppage looms on the horizon. The two sides seem diametrically opposed and Commissioner Gary Bettman says the owners will stop at nothing short of a radically different labor agreement. This has all of the markings of a huge struggle, and one that can only be bad for the game of hockey. More updates will come as the negotiations commence.

More from the Sports Business News.

 

Clarett Not Giving Up: As expected, the legal team for Maurice Clarett will continue the struggle in the wake of Monday's unfavorable decision. Clarett will file a motion to have the case heard en banc, or by the entire 2nd Circuit. If that motion is denied, then the team will appeal the case to the Supreme Court.

Meanwhile, the player lost in the shuffle is Southern California's Mike Williams. Williams awaits the final outcome of the Clarett case, but has begun the process of seeking reinstatement of the NCAA. Unlike Clarett, Williams has the full support of his former team, who would welcome him back with open arms. Williams may also file an individual lawsuit against the NFL, claiming the league fed him misinformation that led to his decision to turn pro.

Meanwhile, the NFL and the NFLPA appear to have learned a lesson from this legal struggle and are making plans to make the draft rule more explicit. Both sides hope to write the rule into the next Collective Bargaining Agreement, rather than just leaving it in the bylaws. Many legal writers (including myself) believe that this would not even be a close case if the rule was actually in the CBA.

Tuesday, May 25, 2004
 

Appeals Court Rules Against Clarett: Following its preliminary ruling against Maurice Clarett, a panel of the 2nd Circuit Court of Appeals issued its formal ruling against the prospective NFL prospect today.

The court rejected both the reasoning and the holding of the District Court opinion and focused its opinion on the fact that antitrust rules could not be used to relations better left to labor law.

    This lawsuit reflects simply a prospective employee's disagreement with the criteria, established by the employer and the labor union, that he must meet in order to be considered for employment. Any remedies for such a claim are the province of labor law.

The unanimous opinion focused on several key issues. One, even though the "three year rule" does not appear in the text of the Collective Bargaining Agreement (CBA), it nonetheless formed an important part of the collective bargaining process, and thus, should be afforded the same weight.

In his post, Visible Hand focuses largely on the absence of the agreement from the CBA. But I think the court got this one right. The agreement appears prominently in the NFL Bylaws, which are explicitly referenced in the CBA as being provided for in the agreement. It would be a bad policy to require that every rule be included in the actual CBA for the exemption to apply. Then, negotiating parties would have to re-copy the entire Bylaws and other rules into the CBA, creating a wasteful doubling effect. This cross-reference placed the players union on notice that the bylaws were part of the deal, and the NFLPA acknowledged this in debating some aspects of the "three year rule" in the early 1990s.

The court also took a more holistic approach in applying the non-statutory labor exemption to antitrust law. The panel specifically rejected the three-prong Mackey test used by the District Court, saying that the test was not appropriate in the wake of the Supreme Court's decision in Brown v. NFL. Relying on that decision, the court stated that this was not a case of an employer using a union relationship to disadvantage competitors (i.e., another professional football league), but rather a multi-employer bargaining unit. As a result, the non-statutory exemption could be used, even if the limitation was imposed unilaterally after negotiations had broken down. To hold otherwise, the Court reasoned, would "call into question a great deal of conduct, such as multi-employer bargaining, that federal labor policy promotes and for which labor law provides an array of rules and remedies."

Thus, the rule only needed to concern a "mandatory bargaining subject" in order to fall within the non-statutory exemption. Despite Clarett's arguments to the contrary, the court found this easily satisfied:

    Contrary to the district court, however, we find that the eligibility rules are mandatory bargaining subjects. Though tailored to the unique circumstance of a professional sports league, the eligibility rules for the draft represent a quite literal condition for initial employment and for that reason alone might constitute a mandatory bargaining subject.

    ****

    But moreover, the eligibility rules constitute a mandatory bargaining subject because they have tangible effects on the wages and working conditions of current NFL players. Because the unusual economic imperatives of professional sports raise "numerous problems with little or no precedent in standard industrial relations," we have recognized that many of the arrangements in professional sports that, at first glance, might not appear to deal with wages or working conditions are indeed mandatory bargaining subjects....

Thus, in order to prevent "antitrust courts from usurping" established practices of labor law, the court found the rule to fall within the nonstatutory labor exemption.

Finally, the court dismissed Clarett's policy argument that the eligibility rule represents merely an arbitrary line, without any real justification.

    Clarett, however, stresses that the eligibility rules are arbitrary and that requiring him to wait another football season has nothing to do with whether he is in fact qualified for professional play. But Clarett is in this respect no different from the typical worker who is confident that he or she has the skills to fill a job vacancy but does not possess the qualifications or meet the requisite criteria that have been set. In the context of this collective bargaining relationship, the NFL and its players union can agree that an employee will not be hired or considered for employment for nearly any reason whatsoever so long as they do not violate federal laws such as those prohibiting unfair labor practices or discrimination.

As readers of this blog know, I feel the court got this one correct, for many of the reasons stated above. The NFL has a product, and it has a right to protect that product in reasonable ways that it sees fit. If the NFLPA does not like the "three year rule," then I am sure it can be exchanged in the next bargaining process. If, however, the union likes it, then Clarett and others must abide by it, because they too will benefit as future union members.

You can read the court's opinion here.

Sunday, May 23, 2004
 

Ticketmaster and Antitrust: Does Ticketmaster border on violating antitrust laws? At most venues, for most events, your only option is to use Ticketmaster, unless you want to drive to the venue box office. There are a few minor competitors (i.e. tickets.com), but nothing major. Does anyone have any thoughts on this?

 

Suit Accuses NCAA of Antitrust Violations: A former walk-on at the University of Washington has filed a lawsuit against the NCAA, claiming that the organization's scholarship limitations violate antitrust laws. The suit is a proposed class action on behalf of all Division I-A football players in the past four years that were not granted scholarships. The named plaintiff played football at Washington from 1997 to 2000.

This lawsuit seems doomed on a number of levels. For one, the roster sizes in all sports are capped. An NBA team can only have so many players and the same goes for all other professional sports teams. And the fact that the suit was brought in the context of football only adds to the problems. Currently football teams are limited to 85 scholarships per season, which is approximately 6 times higher than the number awarded in any other sport. In fact, teams are only allowed to dress 60 players for a game, meaning that 25 full scholarship players watch from the stands every week. Moreover, due to Title IX limitations, increasing the number of football scholarships would mean decreasing other male athletic opportunities, a practice that has garnered significant criticism in recent years. So, on a policy level, the plaintiff seems to have a tough climb.

In addition, much of the existing legal precedent goes against the lawsuit. The plaintiff relies on Law v. National Collegiate Athletic Ass'n, 134 F.3d 1010 (1998), a 10th Circuit case which overruled an NCAA limitation on the compensation of college coaches. However, much of the language in that opinion actually goes against the plaintiff's case. While the court agreed that NCAA rules could be subject to antitrust violations, it held that because the NCAA's product required certain horizontal restraints on trade to survive, then its rules would be subject to a "rule of reason" test rather than holding the restriction illegal per se.

    Rather, what is critical is that this case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all. The "product" made available by the NCAA in this case is college basketball; the horizontal restraints necessary for the product to exist include rules such as those forbidding payments to athletes and those requiring that athletes attend class, etc. See NCAA v. Board of Regents, 104 S.Ct. 2948 (1984) (what a sports league and its members "market ... is competition itself.... Of course, this would be completely ineffective if there were no rules ... to create and define the competition to be marketed.").

The court held that, since the restriction on coaches' salaries had not been proven to have any impact on the competitive balance, the limitation failed the "rule of reason" test and thus violated antitrust laws.

In contrast, the regulation at issue here seems to have a direct correlation with leveling the playing field and protecting the NCAA's product. Without restrictions on scholarships, the powerhouse football academies could grab a significant portion of the talent, which would both improve their team and harm their opponents. Many players are lured to the big name schools, often believing that they will star, no matter the competition. In fact, the plaintiff in this lawsuit admits that while he could have gone to a smaller school on a scholarship and started, he stayed at Washington because he "wanted to be a Husky."

Courts in a number of other cases have applied NCAA v. Board of Regents in upholding NCAA rules against antitrust violations. In McCormack v. National Collegiate Athletic Ass'n, 845 F.2d 1338 (1988), the 5th Circuit upheld the "death penalty" violations against the SMU football team for numerous violations.

    The essential inquiry under the rule-of-reason analysis is whether the challenged restraint enhances competition. Applying this test, we have little difficulty in concluding that the challenged restrictions are reasonable. The Supreme Court indicated strongly in Board of Regents that such was the case. In a paragraph mentioning the eligibility rules expressly, the majority stated:

      It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive because they enhance public interest in intercollegiate athletics.

      ***

      Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice--not only the choices available to sports fans but also those available to athletes--and hence can be viewed as procompetitive.

    The eligibility rules create the product and allow its survival in the face of commercializing pressures.

Thus, it appears the plaintiff has a difficult road to winning the case. He must prove that the rule (1) violates the "rule of reason" and (2) is not necessary to promote the competitive balance in the NCAA, and the weight of precedent is against him on both.

 

Betting and Sports: Does legalized betting benefit athletics? At least one study says the answer is yes. For more, see this article.

 

NFL Labor News:

New York Giants coach Tom Coughlin has a reputation for being a disciplinarian, but the players union and the league think he went too far this off-season. After "seven to ten" players lodged complaints with the league, the NFL responded by penalizing the team two days of organized work-outs next week. According to league rules, every team is allowed a maximum of 14 organized team activity days during the offseason. Each day is to last a maximum of six hours, with no more than two hours spent on the field.

In Cleveland, quarterback Tim Couch has filed a grievance with the union because the team has forbidden him from partaking in offseason work-outs with the team. Couch remains under contract, but the team has been trying to trade him since it signed Jeff Garcia to be its starting quarterback. Couch's agent contends in the complaint that by not being able to practice, Couch will not be prepared for the 2004 season, no matter what team he joins. The matter will go before an arbitrator unless a resolution is reached.

 

Williams to Face Re-trial: Former NBA player Jayson Williams will face a re-trial on the charge of reckless manslaughter, prosecutors announced Friday. Williams was acquitted of the most serious charges against him, including aggravated manslaughter and two weapons charges. He was convicted of four charges of attempting to cover up his involvement in the shooting, including tampering with witnesses and evidence. He faces a sentence of up to 13 years on those counts.

Re-trying Williams on the reckless manslaughter charge does not violate double jeopardy because the jury was unable to reach a verdict on that count. The requires the prosecutor to prove that Mr. Williams, while handling the gun, was aware of and consciously disregarded a substantial and unjustifiable risk that his actions would cause Mr. Christofi's death.

Williams will remain free until after the second trial, which is slated for January of next year.

 

Tarver Faces Bankruptcy Troubles: ESPN has an article on the financial struggles of Antonio Tarver, who owes creditors nearly a million dollars and whose assets are tied up in bankruptcy court.

Saturday, May 22, 2004
 

In Memoriam: Doug Pappas I was saddened to learn that Doug Pappas, who maintained the incredible Business of Baseball weblog, passed away this past week while vacationing in Big Bend National Park. Pappas, who was only 43, represented one of the best sources on the Internet for the relation between baseball and business. His site was one of the inspirations for my own and he will be missed.

SABR has an obituary here. Also, a touching piece from Jay Jaffe at Futility Infielder.

Wednesday, May 19, 2004
 

Historical Licensing Deal Rumored: According to the Sports Business Journal and Gamespot, video-game maker Electronic Arts (EA) is close to signing a licensing deal with the NFL Players Association for $1 billion (with a 'b') over four years. This would be an exclusive licensing deal, meaning that no other video-game makers could use NFL team or player names or likenesses during the period. This remains a rumor at this point, even though it was printed in the SBJ and ESPN. A moderator at espnvideogames.com apparently phoned EA and was told that only a normal licensing deal was being negotiated, though this representative likely had no incentive to be upfront with a stranger on the phone.

If true, this has incredible implications on sports business and the increasing importance of video games. As this article states, video games are now an $11 billion a year industry, with actors and celebrities often receiving hefty fees for lending their names and likenesses to the product. With DVD-quality movies and constantly improving graphics, video games now rival movies for entertainment spending.

This also gives credence to my argument about the value of a celebrity's image and the importance of protecting the right of publicity. In my opinion (see previous post), Professor Volokh does not give enough weight to the incredible value of a celebrity's name and image (his article here). While 1st Amendment rights must be protected, the fact remains that celebrities, including athletes, have a valuable property right in their name and likeness. The fact that a $1 billion licensing deal is seen as credible (even if ultimately proven untrue) further supports this assertion.

So, where should the line be drawn between the 1st Amendment and the right of publicity? As I noted before, perhaps there should be some system of royalties paid to the public figure, if indeed the use of the celebrity's name or likeness increased the value of the product. But some concession should be made for speech with additional non-commercial purposes. For instance, in ETW v. Jireh, Tiger Woods was depicted in a painting called "Masters of Augusta" that portrayed him with other winners of the Masters. This work, as the court held, represented a historical event and Woods's likeness was due to his part of that history. In addition, the Schwarzenegger bobblehead, if truly political satire, could also fall into this category. But a bobblehead of another actor or actress most likely would not. Nor would a portrait of Tiger Woods standing on a non-descript golf course. Yes, this is artistic expression that seems to receive 1st Amendment protection. But some line must be drawn to protect public figures and the valuable property right in their name and likeness.

Tuesday, May 18, 2004
 

A Look at NFL Contracts: USA Today ran an interesting article last week on NFL contracts. Because these contracts are not guaranteed, one should evaluate their worth by looking at the first three years.

 

Disabled Group Sues Over New Arena: A group of disabled veterans and four of its members have filed a suit in federal district court claiming that the new FedEx Forum in Memphis fails to comply with the American with Disabilities Act. The dispute centers on the fact that the wheelchair seating at the FedEx Forum, as presently designed, does not provide for permanent wheelchair seating locations. Instead, the FedEx Forum is designed with wheelchair seating positioned on removable platforms. The arena is scheduled to open in the fall.

You can read more on the ADA and sports arenas here and here.

 

ESPN Sued Over Score Data: ESPN has been sued by Sportsnetwork.com for "stealing" real-time minor league baseball scores and data. ESPN has denied misappropriating real-time data and using automated searches, saying it only performs manual searches of the site to update its own box scores at the end of innings and the end of games. Sportsnetwork.com appears to have a better case than in NBA v. Motorola, because ESPN is a direct competitor and ESPN's use reduces the incentives for Sportsnetwork to gather the data. In addition, there appears to be a breach of contract claim because the site prevents users from reselling the data.

 

Supreme Court Passes on Ravens Dispute: The Supreme Court declined a chance to hear an appeal in a copyright dispute between the Baltimore Ravens and an artist who claimed the team stole his idea for the team's logo. In the first trial, a jury held that the team did indeed use the artist's idea.

This case arose out of a follow-up trial two years later, when a new jury ruled that despite the conversion, the artist was not entitled to a share of the team's merchandising revenues. The artist appealed, arguing several procedural errors, including that the court "erroneously failed to accord him the benefit of a statutory presumption that an infringer’s revenues are entirely attributable to the infringement." The Court of Appeals held against the artist in the ruling that now stands.

You can access the complete 4th Circuit opinion in Bouchat v. Baltimore Ravens at this link.

Monday, May 17, 2004
 

Loria and MLB Arbitration Begins Today: The arbitration hearings begin today in the fraud case against Jeffrey Loria and Major League Baseball. The hearings center on the lawsuit filed under the Racketeer Influenced and Corrupt Organizations Act lawsuit filed by 14 former minority partners in the Montreal Expos. The partners claim that Loria, who owned the Expos from 1999 to 2002, hoped to sabotage the team's operations in the hopes of getting the team to move elsewhere:

    The minority partners, who now own about 6 percent of the Marlins, filed a lawsuit and arbitration case in July 2002, claiming Loria undermined operation of the Expos so they could be moved or folded. The case seeks millions of dollars in damages and also names Marlins President David Samson and two companies run by Loria.

    "The claim is that Jeffrey Loria and David Samson never intended to keep the team in Montreal," said Jeffrey Kessler, a Dewey Ballantine attorney representing the Canadian partners. "From the very beginning, they intended to destroy the plans in place to build a new stadium, sell bonds, bring in investors and make the team viable in Montreal because they wanted to own a team somewhere in the U.S."

Any findings made by the three-member arbitration panel are binding and will likely influence the outcome of the RICO trial. The hearings are supposed to last several months and will feature the testimony of over thirty witnesses. Unlike a trial, though, arbitration proceedings are held in camera, meaning that little, if anything, will be made public, including the reasoning behind the decision.

Hat Tip: Business of Baseball

 

Possible NHL Agent Scandal: Beyond the Score links to a story about a potential agent scandal in the NHL. The agent is accused of paying a player $50,000 to leave IMG and fall under his representation. Now, the player is back at IMG and the agent wants his money back.

Have you ever heard the one about the man who walked into the police station and reported his bag of marijuana had been stolen? If you are going to break the rules, sometimes things like this will happen. The agent will probably get the money back, but it appears his career in hockey may be over.

 

No Charges in CU Scandal: Colorado officials have said that no charges will be filed in the recruiting sex scandal centered on the University of Colorado. A special task force reviewed the allegations and the evidence before deciding not to take criminal action.

But does this signify the end of the scandal? Many think the answer is no and that many people in the administration should be fired. I agree that there seems to be a problem at Colorado and that the athletic department should be held more responsible for these actions. But, anyone who thinks this problem stops at Colorado, or stops at the football team, is sorely mistaken. While statistics vary from study to study, a great number of women are raped or have an "unwanted sexual experience" while in college. Most of these result from heavy use of alcohol. Thus, the Colorado story should signal to all campus administrators, as well as athletics officials, of this growing problem on campus. While this scandal broke publicly, there are countless other incidents that go unreported. College administrators, athletics officials and students should work together to change the culture on college campuses, so that the problem of sexual assault decreases, rather than growing out of control.

 

How Sports Affects the Law: Not only does the law affect sports, but sports can have a major impact on the law. In the wake of the acquittal of Jayson Williams (read more here), the state of New Jersey is pushing to get a new homicide charge written into the law. A charge of "criminally negligent homicide" would be easier to prove and carry lighter penalties than aggravated or reckless manslaughter.

The proposed law change comes as a direct result of the media attention the trial received. There have undoubtedly been similar cases in New Jersey before that did not bring about legal reform. While many view with disdain the great deal of attention celebrity trials receive, perhaps this case shows one ancillary benefit: potential reform. Only by placing the law and the judicial process under a microscope can changes come about that could have long-standing benefits for society. Sports trials produce this microscope, and in the process, help to change the law.

 

Title IX Deemed Non-Discriminatory: In a decision that keeps with previous precedent, a federal appeals court has ruled that Title IX does not discriminate against male athletes. On Friday, the DC Circuit ruled in National Wrestling Coaches Ass'n v. Dept. of Education that the plaintiffs failed to show that the anti-discrimination law directly caused a reduction in men's sports.

The court, following the reasoning of previous Title IX cases, held that the independent schools made the decisions to cut male athletic teams (rather than adding female teams), and thus, a move the law itself does not dictate. The court pointed to the 1996 and 2003 Clarifications of the 1979 Policy Interpretation of Title IX, both of which expressly declare that schools should not cut male teams in order to meet the standards of "substantial proportionality" in sports.

Of course, this ignores the reality of budgeting in college athletics. Almost all women's athletic programs, with the exception of a few basketball powerhouses, lose money. Thus, for schools to take on this extra burden, they must cut some programs that also lose money, such as men's wrestling, fencing, swimming and gymnastics. It is a zero-sum game and so male non-revenue sports are the losers. Many also blame football, with its incredibly high number of scholarships and large percentage of the athletic budget. But this is not the whole story, because in reality, football bankrolls most, if not all, of the other sports at a school.

So, is the answer less football, or less other male sports? This is unclear, but the courts have stated defiantly-- the scapegoat cannot be Title IX.

You can read the full opinion here.

 

Back to Speed: I apologize for the lack of posts recently, but now that exams are done, the sports and law should continue to flow freely.

Wednesday, May 12, 2004
 

Home Stretch: An exam today and another tomorrow means no posting. For interesting reads, please see the Sports Economist, Doug's Business of Baseball and Sabernomics. There are other sites as well listed on the left in the blogroll, all of which I recommend.

Monday, May 10, 2004
 

Agency Problems in DC: Washington draft-pick Sean Taylor has fired the agent that represented him throughout the draft. I don't think this poses any legal problems (most agents work on an 'at-will' basis), but it could if the contract signed guaranteed some form of liquidated payment or guaranteed sum.

The firing has raised speculation that Taylor will hire the Postons to be his representative. The Redskins have a history of strife with that agency stemming from the LaVar Arrington situation, and it is reported that the team passed on Kellen Winslow because he was represented by them.

Hat Tip: John Stoner.

 

More on the NBA and Early Entry: My recent post concerning the decline in television ratings and the possible tie with younger players drew considerable talk in the Comments section. For those of you that might have missed them, here are some excerpts.

David makes a great point about the pampering of basketball players, almost from birth:

    Elite basketball players, like most elite athletes, are pampered and told they are the best. They are frequently much better than everyone else who they play, and there is no need to work on fundamental basketball skills, such as passing, since the success of the team is directly related to how much that athlete handles the ball. Basketball is also the only sport (of the Big Three) where one player can, and is encouraged, to do everything.

Mike points to other evidence, namely the amount Lebron James has helped the Cavaliers ratings and attendance and suggests the low numbers could be due to being in the first round of the play-offs:

    [W]hat would the ratings have been if Lebron and the Cavs had made the playoffs instead of the Celtics? I suspect a Lebron-Pacers matchup would have done MUCH better than did the Celtics-Pacers fiacso. Going on that, maybe we should deduce that the NBA would be better off if MORE high school kids skipped college.

In response to that, I say that Lebron James is most definitely the exception, and not the rule. He is a phenomenal athlete that has been nothing but good for the league, but his season, combined with Carmelo Anthony's, may just be a flash-in-the-pan, not a sign of things to come. In any case, just because he is enjoyable to watch does not mean that the game he plays in is that enjoyable. Let's see how the ratings do in the next two years when a lot of the hype wears off. As for the first round argument, the games lost to regular season baseball games. Not even special ones, just plain-old regular season games. Maybe that is an argument for losing the first round of the NBA play-offs, but I think it definitely says something.

Finally, Chris thinks perhaps the problem is only skin-deep:

    I'll throw this out there: There's nothing in the NBA that can't be solved by another white star.

    Simplistic? Perhaps. But it's tough to ignore the fact that in the 1970s, the perception of the NBA wasn't much different than it is right now, with the picture of self-absorbed players who don't play hard -- high school guys or not. Once the league stopped placing limits on black players on their rosters (and especially after the merger with the ABA), the league reached the point where it was too black.

    Suddenly, Larry Bird shows up and while Magic and Jordan play a large role, the NBA has white guy among the top two or three players in the league. And it's even better that he leads his team to the NBA Finals five times in his first eight years, including three titles.

    Not coincidentally, the NBA could do no wrong. Not even one of the most catastrophic draft classes of all time, 1986. Not even the carping about the lack of defense in the league.

I think that the problem is more than race -- the league did pretty good with a guy named Michael, but race does factor into this picture. Chris has much more, which can be read here.

Finally, Michael Wilbon has a fantastic read on how dreams of the NBA has the potential to ruin many a young life.

 

Updates on Kobe Bryant Case: As much as I don't like it (mostly because of the bad name it gives sports law), I realize that criminal law is still law and so it is probably time for an update in the Kobe Bryant case. The most interesting issue is still the application of Colorado's rape shield law and the information about his accuser's past sexual history. You can read more on that issue here and the law in this earlier post. CrimLaw also has some links.

In procedural matters, the Bryant has pleaded not guilty and a trial date has been set for August, which is convenient for the basketball player, though it could conceivably run into the start of the season.

In other news, the judge agreed to allow television cameras into the courtroom during the entering of the plea. This should be illegal. You can argue all you want about freedom of the press, but there is no reason that television cameras should be allowed. Television cameras, especially in a case like this, will turn the case into a spectacle, rather than the serious judicial proceeding it is. One need look no further than the OJ Simpson case to see that. Witnesses, lawyers and even the judge should be focusing on the legal issues, not how their hair looks and what the television audience will think. A current Supreme Court justice has said, "If they ever roll a camera into these chambers, it will be over my dead body." I wish that were true in all courtrooms, as the presence of cameras can only detract from the system of justice.

 

More on Price and SI: The US District Court judge in the Mike Price case has allowed Sports Illustrated to appeal his decision ordering the magazine to reveal its sources. Price has sued the publication for defamation stemming from his dismissal as the Alabama football coach. In December, the judge ruled that an Alabama law protecting newspaper, television and radio reporters from being forced to reveal their sources does not extend to reporters for magazines. The judge asked the Alabama Supreme Court to rule on clarify this issue of state law, but it declined to do so. The judge then cleared the way for the federal court of appeals to rule on the matter.

You can read my analysis of this legal issue in this earlier post. Here is an excerpt:

    Legally, can a law distinguish between different types of publications? The answer seems to be yes, as Playboy does not have the same privileges regarding sources as does the Washington Post. However, where should this line be drawn? The judge in this case seems to be distinguishing between “primary” and “secondary” news sources, but this difference is not always so easy to see. Should Newsweek receive less protection? Should Variety receive more? And where do Internet publications fit into this picture?

The case should be decided by next fall, and an appeal to the Supreme Court is possible.


 

Ex-Bonnies Suing University: From Espn.com:

    Former St. Bonaventure athletic director Gothard Lane is suing the school for libel, saying university officials maliciously damaged his reputation following last year's player eligibility scandal.

    Lane is seeking at least $3 million in damages, according to papers filed in U.S. Federal Court in Buffalo on April 14. A court date has not been set.

And, in related news:

    Former St. Bonaventure coach Jan van Breda Kolff is suing the school, saying he was wrongfully dismissed following last year's player eligibility scandal.

    Van Breda Kolff's lawyer Lew Conner told The Associated Press on Thursday that a lawsuit was scheduled to be filed in U.S. Federal Court in Buffalo by the end of the day. He said van Breda Kolff is suing the school for breach of contract, libel, invasion of privacy and injurious falsehood.

 

Iowa's Ironic Policy: The state and University of Iowa have made headlines in the past few weeks because of the state's policy on not playing teams with American Indian nicknames, such as "Braves," "Indians," etc. This year, Iowa dropped baseball games it had schedule with Bradley, because their team is nicknamed the Braves. The university has also said it would turn down a lucrative football series with Florida State because their team is nicknamed the Seminoles.

The merits of such a policy can be debated, and you can seeboth sides of the controversy.

But what is ironic is that the University of Iowa is nicknamed the 'Hawkeyes.' I am not the first, but I wondered what that referenced, so I looked it up. From Portal Iowa: "The 'Hawkeye State' was first suggested by James G. Edwars as a tribute to Indian leader Chief Black Hawk." So, Iowa, the leaders in the anti-Native American name movement, have a Native American nickname. So far, only World Net Daily has picked up on this, but how can Iowa possibly get away with such moral grandstanding? And how has no one in Iowa picked up on this?

 

More on Bloom: You can read the opinion in the Bloom case here (Word document).

Unless appealed further (which is still an option), Bloom most likely will not be in uniform for the University of Colorado this fall. While some commentators think the NCAA got this one right, I think the NCAA could have made an exception or drawn a bright-line in this case that would not have jeopardized the integrity of the student-athlete process.

 

Posting this Week: Three exams this week, so posting will be lite once again. Back to normal by next week.

Friday, May 07, 2004
 

Spider-Bases No More: The court of public opinion has trumped and there will not be Spider Man bases across ballparks in June. After seeing the universal public outrage at the proposal, Columbia Pictures agreed to take the bases idea, which had been its own, out of the agreement with baseball.

This is great news for baseball fans and purists. It also serves as a reminder that advertisements can backfire and result in negative publicity for the advertiser. Hopefully, baseball and potential sponsors will take note of this and remember that there are limits on what fans can tolerate. Outfield wall? OK. Ads on uniforms? Tolerable. But the field should remain pristine -- a reminder that there is still a 'game' within the 'business' of sport.

P.S. Baseball also has plans to put some sort of Mother's Day/Breast Cancer Awareness logos on bases this weekend. That is also a bad idea and I hope baseball backs off. Great cause, but the same problems apply. Give them stadium advertising, television and radio spots and plugs on the Internet.

Thursday, May 06, 2004
 

Bloom Appeal Denied: A Colorado appellate court has denied Jeremy Bloom's appeal seeking a preliminary injunction against the NCAA. Bloom was hoping the court would stop the NCAA from preventing him from playing college football while receiving the endorsement money he needs to be an Olympic skier.

You can read more on the case here.

Wednesday, May 05, 2004
 

You Can't Sue Over This, But Don't You Wish You Could? Major League Baseball has agreed to sell promotions for Spider Man 2 ON THE BASES. The bases will be adorned with Spider-Man logos to promote the new movie, with some teams getting up to $100,000 for desecrating their field.

And that is exactly what they are doing. I understand the economics of sports and the need to generate revenue. Outfield signs are signs behind home plate are one thing. But this is on the field of play. The terms used to describe baseball fields include "diamonds" and "green cathedrals." There is something magical, and yes, unspoiled, at the simplicity and elegance of the green, brown and white interacting together and forming a union of nature and sport. Baseball fields have taken this same format since the game was formed, with subtle variations in dimensions over time. Yes, astroturf was used at one time, but with one very brief exception, it has always been green, brown and white.

This latest move has spoiled one of the last sacred parts of sport. What's next? Advertisements painted on the fairway at Augusta? The "Old Spice" rubber on the "Bud Lite" pitching mound? Unlike a basketball court or a sheet of ice, a baseball field has a character about it that screams "Leave me alone!" For major sports to be successful, the "game" and the "business" must learn to co-exist, so that fans do not forget why they love the sport they are paying tons of money to witness. If baseball sells out the field, there truly is nothing sacred left in sports and the "game" will be forever lost to the "business."

 

Coach's "Crybaby Award" May Cost Him Job: A junior high basketball coach is in trouble over a "Crybaby Award" he gave one of his players at the end-of year banquet, but the school may face legal hurdles if it attempts to fire him. The coach awarded a 13 year-old player the award because he always begged to get into games and "whined" a lot. The player was called up to stage and presented the award in front of all of his teammates and guests at the end-of-year banquet.

The school board voted yesterday to fire the coach, but the board's own attorney said that the move may not be legal. Board policies dictate that only the superintendent can make hiring and firing decisions. In addition, the collective bargaining agreement with the local teacher's union allows some rights before termination, including a due process right to a hearing.

I have a few thoughts on this. One, the coach was wrong, not just for giving the award, but for not having any common sense. The player was thirteen, and all he wanted to do was get in the game. Sure, I bet he whined a little bit, but honestly, what 13 year-old doesn't? He was enthusiastic about getting in the game and you cannot fault a player for that. By mocking this desire, the coach was sending a bad message to his team.

But as dumb and insensitive as this was, should this really cost the man his job? Apparently, he has been a very good teacher the past three years. In addition, he teaches special education, an area in which it must be difficult to find good teachers. The president of the teacher's union summed it up nicely:

    "Nobody should have a promising teaching career shot down by an obvious bad taste of judgment. To go as far as they're going? That's unconscionable," said Hovey, president of the Pleasantville Education Association.

The coach should be reprimanded, and probably prevented from coaching, at least for next year. But firing him is a knee-jerk reaction that represents society's overly-sensitive nature. I am certain that this is not the worse thing ever to happen in a public school. In fact, I was embarrassed in a similar way by a teacher in middle school (not with a "crybaby" award, but something somewhat analogous) Yeah, it upset me at the time, but the teacher was a good man that made a mistake. If we fired everyone that had a lapse in judgment, unemployment lines would be pretty long.

Tuesday, May 04, 2004
 

Marcus Dixon Wins Appeal: The Georgia Supreme Court has overturned the conviction of Marcus Dixon on felony child molestation charges, ruling the state should have used the narrower statute of misdemeanor statutory rape. Dixon was accused of raping a sixteen year-old girl when he was eighteen. He claimed it was consensual sex, and was acquitted of the rape charge. He was still guilty of statutory rape because of her age, but the prosecution attempted to use the much harsher, and broader, felony child molestation statute to get Dixon a harsher sentence. Dixon was sentenced to ten years, but the Georgia court said no:

    It would be entirely incongruous with the intent of the legislature, when it eliminated the discretionary aspect of the statute and mandated that conduct meeting the misdemeanor statutory rape criteria be punished only as a misdemeanor, if the State retained the discretion to prosecute the exact same
    conduct as either misdemeanor statutory rape or felony child molestation.

    *****

    That result would completely undermine the legislature's intent to remove any discretion over whether to punish sexual intercourse between teenagers, other than forcible rape, as a misdemeanor or a felony.

As I stated in this earlier post, this is absolutely the correct result. The evidence in this case overwhelmingly indicated that the state deliberately used the harsher felony statute to convict Dixon when he wasacquittedd of rape. Thankfully, the Supreme Court said no, saying the intent of the statute, and the legislature, was clear.

You can read the full opinion here.

This case should give cause for much alarm. Marcus Dixon's status as a star athlete gave this case incredible publicity, and in many ways, allowed for funds to be raised to mount this legal appeal. There are many defendants, though, that do not have this publicity and do not have the money available to mount successful appeals. Thus, one wonders how many similar abuses of the criminal justice system occur unnoticed on a daily basis, especially against defendants that are poor or minorities. Stopping these abuses, and eliminating the "wealth gap" in criminal justice, should be a top priority for our legal system.

Monday, May 03, 2004
 

On the Feds and Steroids: Doug Pappas at Business of Baseball has a detailed look at the seizure by federal agentsof the drug test samples from 1400 major league baseball players.

Pappas blames the federal agents for choosing to "trample on the privacy concerns" of Major League Baseball and its players. As has been stated by many, though, the seizure was perfectly legal under the 4th Amendment. There are clear ties between this lab and the Balco investigation. As a result, the government is legally justified in seizing these samples in hopes of finding evidence for its case against Balco and Victor Conte.

The real question is what will be done with this information. The government has no interest, and indeed maybe no right, to reveal what is discovered. Seizing incriminating evidence is one thing, but exposing it is another. THG was not an illegal drug when these tests were conducted. As a result, I cannot see any criminal charges coming against any players on the basis of these drug tests. What the tests could be used for, though, is to prove perjury against any players that testified in front of the grand jury. As I wrote last month on Only Baseball Matters, one can commit perjury even if he has not been or will not be charged with any offense.

How will this affect the relationship between the league and the union in regards to drug testing?

    Ultimately, it could be MLB's response to any released drug tests that determines whether or not the league and the union can work together to formulate a drug plan. If positive tests are released, MLB will be under enormous public pressure to sanction the players involved, either for committing perjury or for taking drugs. It should be remembered, though, that THG was not banned by baseball until early last year, right about the time these samples were taken. Any suspension for "drug use" could be viewed by the players association as a violation of good faith by baseball, and any suspension for "perjury" may be viewed as a facade. Thus, any action baseball takes could be met by swift condemnation by the players association, which could prevent any meaningful agreement on the drug issue.

So far, the league has been standing by the players and attempting to protect them at all costs. This bodes well for future agreements, even if all of the samples may not have been destroyed on schedule. The players and the owners both have an interest in keeping the stars on the field, and both sides know this. Expect a new agreement to be reached for testing, but one that strictly limits the storage of the samples. The samplwillil most likely be kept only long enough for a re-test and confirmation before being destroyed. Only by doing this can baseball avoid situations such as these, where it is a pawn in a much-larger government investigation.

 

Great Site for Small Firms: The nice folks at Law.com have provided a link to this blog. If you are a small firm or a solo practitioner, be sure to check out the Law.com Small Firm Business page. There are some interesting stories and links to other relevant websites.

 

Call for Commentary: The fun of exams is upon us (or rather, me). Thus, blogging will be lighter for the next two weeks. I will endeavor to post on big news and stories. However, if you have any commentary on an issue that you would like to share, please let me know via email. I will post any interesting views as guest posts.