Sports Law Blog
All things legal relating
to the sports world...
Sunday, July 30, 2006
Two Lawyers Among Five NFL Commish Finalists

It looks like Secretary of State Condoleeza Rice, who is otherwise occupied, will not be the next NFL Commissioner, contrary to earlier speculation. Nor did Forida Governor / First Brother Jeb Bush make the cut. Instead, the NFL announced today the following five finalists, including two lawyers:
ROGER S. GOODELL, 47, New York, N.Y. Executive Vice President and COO, NFL
GREGG H. LEVY, 53, Washington, D.C. Partner, Covington & Burling law firm
FREDERICK R. NANCE, 52, Cleveland, Ohio. Partner, Squire Sanders & Dempsey law firm
ROBERT L. REYNOLDS, 54, Concord, Mass. Vice Chairman and COO, Fidelity Investments
MAYO A. SHATTUCK III, 51, Baltimore, Md. Chairman of the Board, President and CEO of Constellation Energy
The owners will apparently make a final decision from among these candidates between August 7 and 9. While handicapping the decisions of NFL owners is always a risky measure, the smart money would seem to be on non-lawyer Goodell. While current commissioner Paul Tagliabue held the same job as Covington partner Gregg Levy when he was appointed back in '89 (that is, principal outside counsel for the NFL), Tagliabue's appointment came at a different time for the NFL. The league had recently emerged from a major intra-league antitrust case (USFL v. NFL), which Tagliabue successfully defended (in the sense that the jury's verdict was a rather meager $1). The '80s were also a divisive time for labor relations in the NFL. A tough litigator like Tagliabue was the obvious choice at that time. But in today's era of labor peace and market dominance, a tough litigator may be make less sense than a business insider with a public relations background. Mr. Nance, Lebron James' lawyer, might trouble some owners because of his player-side experience (although the line between Lebron and the NBA as a league has certainly faded, and Mr. Nance does have some experience representing the Cleveland Browns). Shattuck and Reynolds, while certainly savvy boardroom leaders, would appear to lack the sports industry experience that usually inspires confidence.

The Law, Politics, and Linguistics of Fantasy Sports

Tim Lemke of the Washington Times has an excellent piece on how courts and Congress may address the growth of fantasy sports ("Licensing Case Could Hurt Rotisserie Sports," 7/29/2006). As also discussed recently by Geoffrey Rapp and Greg Skidmore (Geoff's post; Greg's post), Major League Baseball, which requires fantasy sports operators to obtain a license to use MLB statistics, is scheduled to go to trial on September 5 in a federal case against CDM Sports, a fantasy sports operator that claims that statistics generated by MLB players and teams should be useable without MLB's permission. In other words, CBC and MLB disagree on whether MLB has intellectual property rights in publicly-available statistics. Significantly, this is a case of first impression for fantasy sports, and should a holding eventually emerge (i.e., if the parties don't settle, which they probably will), it would have precedential value.

Considering that more $4 billion is spent annually on fantasy sports--with fantasy football and fantasy baseball leading the way--
leagues obviously have an interest in obtaining as much fantasy sports revenue as possible. So what legal arguments can they use to obtain that revenue? Here are a few arguments, each with its own set of flaws:

1) Statistics generated purely by league activities (i.e., the playing of games), comprise legally-protected league work product.

2) Fantasy league operators are using statistics not for a newsworthy purpose, but rather to profit off of them, and to do so with neither obtained consent nor payment made. There is precedent for this reasoning: baseball card companies and videogame companies must pay a fee for the use of team logos/colors/statistics etc., just as they must pay a fee for player names/images/statistics etc.

3) One might analogize league required licenses for commercial use of statistics to how movie and music industries require licenses in order to prevent pirated products.

Lemke also discusses how a recent effort by Congress to curb online gambling has exempted the fantasy sports industry. Specifically, in all three bills introduced in the 108th Congress that seek to prohibit Internet gambling (H.R. 21, H.R. 2143, and S. 627), the definition of “bets and wagers” excluded two types of activities: 1) certain financial instruments (stocks, commodities, derivatives, and insurance products) and 2) fantasy sports leagues.

Lemke interviews Christine Hurt and me for the political portion of story:
Why the exemptions?

"It makes passage more likely," said Michael McCann, an assistant professor of law at Mississippi College who specializes in sports law. "Most people like fantasy sports. It doesn't have that moral stigma that betting does. Fantasy sports can be just as addictive, but there's not as much outrage."

Supporters of the exemption argue fantasy sports are considered games of skill, but that characterization has angered some fans of online poker, who have pushed for their own exemption on the grounds their game is equally independent of luck.

The Senate could take up the online gambling bill when it reconvenes in September, but whether it will be passed into law is still unclear.

Perhaps the biggest reason for the fantasy sports exemption is that sports leagues, which have often railed against gambling because of its potential influence on the outcomes of games, have actually created and hosted their fantasy games, seeing them as a major part of what drives interest in their sports.

"Fantasy sports does not hurt the integrity of the sport, because it would almost be impossible to rig every game to make as much money" as straight betting on games, said Christine Hurt, a law professor at the University of Illinois who has examined Internet gambling laws. "Your success or failure doesn't depend on one team." But, she added, "if you're talking about the impact on the gambler, there's not that much of a distinction."
There's another portion of this topic to consider: the very use of the word "fantasy," almost as if
fantasy sports are somehow make-believe, even though real money is often used.

So what then distinguishes "fantasy" sports from online "gambling"? There are probably several things, including:

1) Fantasy sports are often more about staying in touch with friends and winning grudge matches than about making money; the subjective value of beating your friends in fantasy football is probably more valuable than the few hundred bucks you might make.

2) Some fantasy sports leagues do not involve money changing-hands, and are thus clearly not gambling in any way.

Any other thoughts about fantasy sports? Are they, in fact, "sports," much like poker or spelling bees are now apparently sports?

Saturday, July 29, 2006
Playing for Peace: The Power of Basketball to Promote Peace

ESPN's Chad Ford--who is also a professor of international cultural studies at BYU-Hawaii, with a J.D. from the Georgetown University Law Center and an M.A. in conflict resolution from George Mason University--has two excellent articles on Playing for Peace, a non-profit organization founded in 2001 that uses the game of basketball to unite and educate children and their communities. The core idea of Playing for Peace is that when kids play basketball, they learn to work together on the court, and that makes them more likely to work together off the court. As a result, children from different and opposing demographic groups learn to view "the other side" with less fear and more objectivity. As they mature, they will hopefully continue to feel that way, thus making peace between the groups more likely. The program has been implemented with success in South Africa and Northern Ireland, and was instituted in Israel and the West Bank in December 2005.

Chad traveled to Israel back in May to see how well Playing for Peace had improved relations between Israeli and Palestinian children. Check out this ESPN article and an excerpt from Chad's Willamette Law Review article for more--they are must reads. The law review article is from the same Willamette Law School symposium on the Future of Sports Law that Chad, Rick Karcher, and I were a part of back in March.

Also, Playing for Peace will be featured tomorrow (Sunday, July 30) on SportsCenter and Outside the Lines. Check out both on ESPN. Particularly considering the current turmoil in the Middle East, any ideas for peace should be given serious consideration.

Friday, July 28, 2006
Top 50 Earning Athletes in the United States

Jonah Freedman of Sports Illustrated has compiled a list of the top 50-earning athletes in the United States. Not surprisingly, Tiger Woods leads the way, although the size of his most recent annual earnings may startle you: $97.6 million, or twice as much as what the #2 person on the list, Phil Mickelson, earned in the last year ($46.0 million). These figures include winnings, salaries, endorsements, and appearance fees. In his career, Woods has earned over a half-billion dollars; he could earn well over a billion dollars by the time he retires from golf.

Here are the top earning players from each league/sport, and their most recent annual earnings figure (salary, endorsements, and appearance fees):
  • PGA: Tiger Woods, $97.6 million
  • NBA: Shaquille O'Neal, $34.0 million
  • NFL: Carson Palmer, $31.6 million
  • MLB: Derek Jeter, $28.0 million
  • NASCAR: Dale Earnhardt, Jr., $25.8 million
  • Tennis: Andre Aggasi, $24.6 million
  • NHL: no NHL player is on the list
Does David Dunn, Carson Palmer's agent, deserve an award or what? No offense to Palmer, an excellent quarterback for the Bengals, but does he really deserve to be the highest-earning NFL player? What about Tom Brady or, I suppose, Payton Manning? But Dunn negotiated a 9-year, $119-million extension for his client, and that deal included $24 million in up-front bonus money.

Thursday, July 27, 2006
Ex-NBAer Mashburn sued for golf injury

One-time Miami Heat basketball player Jamal Mashburn (who retired from basketball in March after he was waived by the 76ers), has been sued by a Florida man who claims Mashburn failed to shout “fore” or provide any warning before hitting a golf ball in the man’s direction. The plaintiff claims to have suffered serious injury.

Mashburn developed an interest in golf at the University of Kentucky. At least that’s what he told the Charlotte Hornets, as reported in a puff piece “Getting to know . . . Jamal Mashburn”:
"I'm a big-time golfer," Mashburn said in reaction to what he likes to do off the court. "I started playing when I was in college. They turned me on to that at the University of Kentucky."

"It was either that or horses," Mashburn continues, grinning as he recollects. "I didn't get into horses, so I got into golf." Golf is just one of his hobbies.
The lawsuit gets coverage here, here and here. The basics:
Jerome Crance was hospitalized on three separate occasions after the ball struck him in the eye, his lawyer Dennis Koltun said Tuesday.

The lawsuit was filed Monday in Miami-Dade Circuit Court and seeks an excess of $15,000 in damages.

Crance and Mashburn, who retired from the NBA after an injury last year, were both playing golf at the upscale LaGorce Country Club in March 2005. Crance was teeing off on the 17th hole when Mashburn hit a shot off the 18th hole that struck him in the eye, the lawsuit said.

Mashburn didn't yell "fore" when he hit the stray ball and failed "to give any warning whatsoever," the lawsuit said.

Koltun said his client suffered serious injuries after the incident.

"He's permanently lost vision in one eye because of a detached retina," Koltun said.
The Hawai’i Supreme Court rejected a similar case earlier this year, as I discussed in this post. In Florida, the issue of a golfer’s ability to recover from a co-participant was squarely addressed by an appellate court over thirty years ago. In Rindley v. Goldberg, 297 So.2d 140 (Fla. App. 1974), a golfer sued after she was hit by a ball struck by another member of her foursome. The court was able to resolve the dispute in just three paragraphs: “Viewing the above facts in the light most favorable to the party moved against, we conclude therefrom that plaintiff’s injury was a result of the certain obvious and ordinary risks of the sport of golfing which she assumed as a member of a golfing foursome with full knowledge of the normal dangers of participating therein.” Perhaps the plaintiff is hoping Mashburn will offer him some money as a nuisance settlement, since the Rindley case would seem to doom his litigation.

The plaintiff might find some solace in a somewhat more recent case in which a golfer (at a Par 3 course) hit a ball which ricocheted back and hit him in the eye. In that case, Potter v. Green Meadows, Par 3, 510 So.2d 1225 (Fla. App. 1987), while denying defendant summary judgment on an express assumption of risk theory, the court implied that it might not extend the contact sports rule on assumption of risk to golf ("There is no evidence of an express covenant not to sue in this case and golf is not generally recognized as a "contact sport.'").

I wonder if Mashburn is wishing he'd taken up horses at UK instead...

Wednesday, July 26, 2006
Excitement of USA Basketball.

First, I want to thank Rick Karcher and Michael McCann for inviting me to be a guest. After several days of trying to log on, I finally listened to and followed Michael's instructions and was able (hopefully) to make a post. While its tempting to post a comment on the on-going issues concerning anti-doping, it seems the resurrection of the USA Basketball team recently is a new, fresh topic for discussion.

Depending on your age, you probably recall the first "Dream Team" that went to Barcelona and walked through the 1992 Olympics on its way to the gold medal. Once the U.S. got comfortable that these "professional" NBAers could play on the Olympic team, the only remaining issue was how to allow the athletes wear uniforms, shoes, and other gear that was not made by the compaines that were sponsoring them.

Over the past few years, a combination of the world players catching up to the our talent and what appears to be us taking the Olympic and World Championships victories for granted has resulted in poor (in comparision) results. (what other factors contributed to our decline?)

Now, with the recent headlines, it looks as if USA Basketball has made a firm commitment to obtain a cohesive team put together well in advance of the Olympics under a Coach (Coach K) who will focus on the game as played in international competition.

Whole lot of legal issues such as player likeness, injuries, sponsors, drug testing, etc....any thoughts?

(For those that do not know, those athletes who are not normally subject to drug testing standards set out by WADA (such as those that fall under a CBA) are subject to the WADA rules prior to the Olympics and World Championship games including the USA Basketball team currently put together).

Harold Reynolds Fired: Is Sexual Harassment Situational or Dispositional?

Neil Best of Newsday writes about Harold Reynolds' surprising firing from ESPN--allegedly because of a sexual harassment complaint filed against him--and in the process, suggests that sexual harassment is a significant problem at the network:
Harold Reynolds, one of ESPN's most visible analysts and a longtime panelist on "Baseball Tonight," has left the network in the wake of one or more incidents of sexual harassment.

Three people who work at ESPN and were familiar with the case said the cause was a pattern of sexual harassment, apparently culminating in a recent incident involving one of the network's young production assistants . . .

Harassment charges are nothing new at ESPN, which operates out of a sprawling "campus" in relatively isolated Bristol, Conn., and employs many production assistants in their early 20s. The network has an extensive program of education and sensitivity regarding gender issues and an elaborate system for pursuing claims of sexual harassment.

Keith Olbermann of MSNBC, a former ESPN host, told The New York Observer in 2004 he had testified in "three or four major cases at ESPN."

Among the prominent ESPN personalities accused of improper behavior in the past is Mike Tirico, who will debut as the play-by-play man for "Monday Night Football" in the coming season. He was suspended by ESPN in 1992 for what were reported at the time to be allegations of sexual harassment. Another host, Jason Jackson, was fired in 2002, reportedly for harassment.
If these accusations are a true--a big "if" since we've seen no evidence in a court of law--what do they suggest about the power of workplace "situation" on the behavior of employees? In other words, to what extent do the workplace circumstances in which ESPN anchors find themselves--being famous ex-jocks or sports guys around young women in a college campus-style setting--cause or encourage some of them to do really stupid things? Has ESPN created a workplace enviroment akin to a male locker room, or is this really about the individual wrongdoers and not about their workplace?

Note: please see update from 10/31/2006: Harold Reynolds Sues ESPN for Wrongful Termination

Good Info on Law Career Blog re: LL.M. Degrees

Slightly off topic, but likely of use to some readers: I periodically receive e-mails and questions about the benefits of obtaining an LL.M. degree, or a masters degree or a Ph.D., as well as inquiries about going on the tenure-track law professor market. For some great information on these and other topics, please check out Law Career Blog, which is run by my good friend and colleague, Gregory Bowman. Here are the relevant posts: Pros and Cons of LL.M. Part I, Part II, and Part III.

Tuesday, July 25, 2006
More on "Donated" Sneakers, Brand Loyalty, and Title IX

In the last couple of weeks, we've discussed how shoe companies are arguably manipulating children by "donating" high-priced sneakers to young basketball players as a way of building brand loyalty, and also how by only donating to boys, they may be inducing schools to violate Title IX (see The Salivating Army and Justin Jenifer post).

There are two more great stories on this topic. One is by Rachel Bachman of the Portland Oregonian ("Shoe deals sidestep rules on equality in schools," June 12, 2006, archived). She details possible Title IX infractions and interviews a number of key people involved, including a surprisingly-forthcoming Tony Dorado, Nike's national manager for high school basketball, and Tulsa Law professor Ray Yasser, who has handled over 40 Title IX cases:
Hoping to curry favor and associate themselves with budding sports stars, usually in basketball, companies give shoes and gear to high school teams. Nike, Adidas and Reebok sponsor about 300 high school basketball teams nationwide, a widely accepted practice that merely rewards the best programs, some coaches say.

But experts say that when a school accepts free goods for a team of one gender while providing nothing for a team of the other gender, it is breaking the law. Title IX bans sex discrimination in
schools, whether in the classroom or sports. And although most high school officials grasp the need to provide equal opportunities and facilities, the issue of private donations to sports teams remains misunderstood.

"The school has an obligation under Title IX to provide equal benefit,"said Linda Carpenter, professor emerita at Brooklyn College and co-author of a book on Title IX. "So if the guys' team receives benefit from Nike in the form of shoes, bags, etc., then an equal proportion of the women's program needs to receive similar benefit."

At many schools, that is not happening. About 75 percent of the high school teams sponsored by Nike, the national leader in basketball-shoe sales, are boys teams, said Tony Dorado, Nike's national manager for high school basketball. That figure is driven by a market in which boys buy far more basketball merchandise than girls do, Dorado said . . .

Nike's goal in sponsoring high school teams is to identify with the nation's best programs and players and boost sales of gear to schools' nonsponsored teams, Dorado said. The idea is to build brand loyalty, and the jackpot is when a player on a sponsored team reaches the NBA, signs an endorsement contract and helps the company sell millions of shoes.

Ray Yasser, a law professor at the University of Tulsa, said he has worked with the Schiller Law Firm of Cookeville, Tenn., to handle about 40 Title IX cases. All of them have settled favorably for the plaintiffs, Yasser said. The issue of schools accepting shoe-company donations for only one gender has come up before, Yasser said, but has not become public because none of his cases went to trial. "The irony of the shoe thing is, every time we've done it, we've raised it, all I had to do is ask the shoe companies," Yasser said. "And if they're giving shoes to the boys, they'll give them to the girls. They're further ahead of the curve than some of the administrators are."
Here's another great piece: Bob Hohler's stunning exposé in the Boston Globe on independent coach/recruiter Thomas J. ``TJ" Gassnola, whose tactics in building "brand loyalty" have earned him a notorious and feared reputation ("$neaker War," July 23, 2006). Check out how Hohler's piece--the first of an of an excellent three-part series on youth basketball and marketing--begins:
A brazen foot soldier in a multibillion-dollar war between sneaker makers for the soles of America's youth, Thomas J. ``TJ" Gassnola has peddled basketball dreams to inner-city adolescents across New England despite a lengthy criminal history and prodigious legacy of financial delinquency.

The face of youth basketball in the region for Adidas, Gassnola is a free-wheeling recruiter whose tactics often have clashed with rules set by the National Collegiate Athletic Association to protect amateur athletes who aspire to careers in college sports. Some of his practices underscore the inability of the NCAA and other watchdog agencies to adequately police abuses in summer youth basketball.

A Globe investigation of the sneaker industry's influence on youth basketball in New England found that Gassnola has handed cash to members of his Adidas-sponsored summer travel teams for expenses unrelated to basketball. Several parents of elite players said the Springfield-based recruiter offered them free airfare or Adidas merchandise while pursuing their sons, and another parent said he interpreted Gassnola's sales pitch to mean the recruiter would provide his son improper financial aid. NCAA rules bar amateur players from receiving anything but ``actual and necessary travel, room and board, and apparel and equipment for competition and practice."

The Globe also witnessed Gassnola drive his teenage players in several states, even though his Massachusetts driver's license has been revoked or suspended 24 times and was not valid from 1993 until last month.

It seems like there's a movement afoot to clean up youth basketball, with the first step being exposing what's really going on. Then again, did Hoop Dreams (one of my favorite two or three films of all time) generate any reforms?

New Sports Law Scholarship

New this week:
Sabrina Bosse, Casenote, Is the price of victory just?: Attorney's fees, punitive damages, and the future of Title IX in . . . (Mercer v. Duke University, 401 F.3d 199, 4th Cir. 2005), 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 319 (2006)

Jackie J. Cook, Casenote, Determining who wears the pants in thoroughbred horseracing (Albarado v. Ky. Racing Comm'n, 2004 U.S. Dist. LEXIS 16378, W.D. Ky. July 20, 2004), 2004 THOMAS M. COOLEY LAW REVIEW 635 (2005)

Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes (Larramore v. RIchardson Sports Ltd. Partners, 540 S.E.2d 768, N.C. Ct. App. 2000, aff'd 546 S.E.2d 87, N.C. 2001), 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)

Matthew Levine, Comment, Despite his antics, T.O. has a valid point: why NFL players deserve a bigger piece of the pie, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 425 (2006)

Sue Ann Mota, Title IX after thirty-four years--retaliation is not allowed according to the Supreme Court in Jackson v. Birmingham Board of Education, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 245 (2006)

Brian R. Moushegian, Comment, Native American mascots' last stand? Legal difficulties in eliminating public university use of Native American mascots, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 465 (2006)

Monday, July 24, 2006
Phil Kessel: Getting Help from a Family Friend or Representation by an Agent?

But you say he's just a friend.
But you say he's just a friend.
--Biz Marke, from his sublime 1988 song "Just a Friend"

It's not too often when I can invoke lyrics by the great artist, Biz Markie, but they come to mind when reading about the Boston Bruins' contract negotiations with first round draft pick Phil Kessel, a rising sophomore at the University of Minnesota, and Kessel's "family advisor," Wade Arnott.

Here's the deal: although Wade Arnott is an NHLPA certified agent--and a well-respected one at that--who works for the sports agency Newport Sports Management, he is not acting as Kessel's agent in Kessel's contract negotiations with the Bruins.

Rather, he's acting as Kessel's "family advisor" or "family friend."

What's the difference? Well, possibly two things: Arnott is not being compensated in any way by Kessel, and there is no contractual relationship between the two. But those may only be illusory distinctions: even if Arnott were Kessel's agent, his compensation would likely be derived by a 2% or 3% cut of Kessel's contract, and because it's expected that Kessel will sign with Arnott as a client right before he signs with the Bruins as an employee, Arnott will still get that cut as a friend. Moreover, Kessel, like any player, can likely drop Arnott at any time, for any reason, with or without a contractual relationship (meaning the existence of a contractual relationship may not be meaningful).

So why the difference? By Arnott being labeled a "family advisor" or "family friend," Kessel can maintain his NCAA eligibility. So if Kessel's contract talks with the Bruins were to fail, he can return to the University of Minnesota and play there in the 2006-07 season. In contrast, if Kessel were to formally sign with Arnott, NCAA rules dictate that he would immediately forfeit his collegiate eligibility.

While I understand that this arrangement bolsters the negotiating power of amateur players, is the NCAA really fooling anyone by engaging in name semantics? If they are really worried about the undue influence of agents (a legitimate concern) why are they letting the very same agents get around the rules by acting as "family friends"?

Sunday, July 23, 2006
My New Law Review Article on Social Psychology, Calamities, and Sports Law

A draft of my article Social Psychology, Calamities, and Sports Law, 42 Willamette Law Review __ (forthcoming, 2006) is now available for download on SSRN for free, right beneath the article abstract. I hope you give it a read. Through social psychology, the article addresses such topics as the future of the New Orleans Saints; how the fear of catastrophic weather influences where players want to play; natural disasters and franchise relocation; the NFL pat-down policy and stadium security; and communicable disease and restrictions on scouting and player contracts. If you have any thoughts, I would very much welcome them by e-mail (mmccann[at], particularly since the article is only in draft form. Thanks!

World Poker Tour Target of Antitrust Case

With the World Series of Poker underway in Las Vegas, it's fitting that Dewey Ballantine attorney Jeffrey Kessler chose this month to launch an antitrust case against the World Poker Tour on behalf of champion players including Chris Ferguson and Howard Lederer. The AP's story is here, and the Poker Prof comments here.

The plaintiffs
argue that WPT Enterprises Inc. made them waive lucrative rights to use their images and names to promote products and video games before they could enter WPT tournaments. . . . [T]he suit accuses WPT Enterprises of "price fixing" and "group boycotts" by colluding with 12 member casinos to prevent players from entering tournaments unless they forfeit their rights.
Kessler, according to his firm's web site, "one of the most prominent sports lawyers in the country," brings significant professional sports antitrust experience to the case. And the sports law comparision is obvious, as Kessler emphasized:
Kessler said he has tried similar suits that have changed the way major sports businesses run, including the NBA and NFL.

"Imagine if they were to have said to John Elway in the NFL, 'Well we should just be able to use your image for any product or service that we want,'" Kessler said. "No professional sport has been able to get away with that and the same will be true with respect to the World Poker Tour."

Basketball Player Sues Yearbook After He's Indecently Exposed

A New Jersey high school basketball player has sued his school district and the editors of his high school yearbook after a yearbook photo appeared in which portions of his genitals were visible. The New Jersey Law Journal has the story:
Tyler Bennett of Colts Neck claims he suffered emotional distress because his genitals were partly visible in a basketball game picture in his 2001 school yearbook.

The suit says Colts Neck High School authorities acted slowly to suppress the yearbook, worsening the distress Bennett suffered as a senior the next year.

And there's a novel issue: Does the publisher of such a picture violate child pornography laws if publication was inadvertent?

So far, the answer to that question has been no. Indeed, the whole litigation has been a dud for the plaintiff. In 2005, a trial judge cited Bennett's lack of evidence of psychological harm and found no basis for a suit under the Tort Claims Act. On June 23, an appeals court affirmed the dismissal.

Undeterred, plaintiff’s attorney Steven Kessel notified his adversaries this month that he will seek review by the state Supreme Court. He is drafting an appeal that raises the issues anew and will set off a new round of defense briefs in the case, Bennett v. Board of Education, Freehold Regional High School District, Mon-L-4700-03.
High school athletes – like all athletes – assume certain risks when they take the court. Had Tyler Bennett been elbowed during practice, he would not have been able to recover (absent unusual circumstances). This case poses some interesting questions about the degree to which athletes assume the risk of other likely results of participating in high school sports. Here, does an athlete assume the risk that his private areas may be visible, and possibly be recorded and published by student journalists?

The most damning piece of evidence for the plaintiff?
The offending photograph, taken from a low angle, showed Bennett shooting a basket on a day he wore boxer shorts instead of an athletic supporter . . .
Hat tip to my colleague Howard Friedman for the link.

Friday, July 21, 2006
Sign of the Apocalypse? Bill Belichick's Alleged Affair and The Boston Herald's Front Page

It might seem peculiar for someone who contributes to a sports law blog to question a major regional daily devoting nearly its entire front page to a sports and the law issue. But I ask that you to take a look at the front page of yesterday's Boston Herald:

Yes, Patriots coach Bill Belichick has been named as the dreaded "other man" in a messy New Jersey divorce case involving Sharon Shenocca, who worked as a receptionist for the Giants while Belichick was the team's defensive coordinator. According to Vincent Shenocca, his wife and Belichick have had a long-term extra-marital relationship, with Belichick buying her many gifts, including "expensive clothing, pocketbooks, watches, a treadmill and maid service” and he also allegedly flew her to be with him at Super Bowl XXXVIII, which the Patriots won. Vincent asserts that he has pleaded with Sharon to break-up with Bill (who separated from his wife Debbie last year), but she won't. So now Vincent wants to divorce Sharon, who might soon be spending more time with Bill.

I'm not sure that the late and great Aaron Spelling could have scripted a better story. And it's so interesting because it mixes a hugely successful sports figure with a soap opera scandal. I know I read the story--which was a Herald scoop--with great interest (I am a lifelong Patriots fan after-all).

But did this story warrant nearly the entire front page, especially at a time when there's a major crisis occurring in the Middle East with many people dying and, more locally, Boston is embroiled in the Big Dig Disaster? Even if the Boston Herald believes that its readers want to read this story, and even if the paper is a tabloid daily, did it have a journalistic duty to treat its editorial decisions with more gravity? And as you can see, the paper even used the top of the same front page to tell readers about Josh Beckett's contract extension!

So is the Herald's front page a sign that sports now attract too much attention? A critic might say no--readers want a break from all of the bad news going on (although a couple's divorce is also bad news, if not quite so terrible), and if they want to read about more depressing things, they can go buy a Boston Globe, turn on a TV, or go on the Internet. What do you think?

The Salivating Army? Shoe Companies that Donate Free Sneakers to Youth Basketball Players

A couple of weeks ago, we discussed Eli Saslow's excellent piece in the Washington Post on Justin Jenifer, the 10-year old basketball phenom who is already being aggressively recruited by shoe companies. This theme of marketers' exploitation of kid athletes resonates again in Mark Alesia's excellent piece in the Indianapolis Star on shoe companies "donating" free sneakers to youth basketball teams that often feature elite players. Interestingly, the schools receiving these sneakers may be violating Title IX, since only the boys' teams tend to get the donations, while the girls' teams do not. As a result, the boys get free sneakers while the girls end up paying a lot of money for the female version of the same shoes.

I think there are two stories going on here.

1) The Gender Equity Story: the obvious, but still important story. Shoe companies supplying sneakers to boys but not girls is probably a wide-spread phenomenon, and is probably apparent in every state. The disparity in treatment probably comprises a violation of Title IX, which takes a fairly inclusive approach to measuring equal athletic opportunity students of both sexes. In fact, Title IX expressly instructs the U.S. Department of Education's Office for Civil Rights to ensure that there is "equivalent treatment, benefits, and opportunities" in equipment and supplies (among other things). This is the kind of story that got Title IX passed in the first place, and one that further validates its existence.

2) The Sneaker Marketing Story: the more interesting story, I think, because it's subtler and yet potentially far more significant. Consider recent comments by Susan Linn, co-founder of the Campaign for Commercial Free Childhood, told to Julie Sabatier of the New Standard:
"Essentially, it's a way to promote brand loyalty. It makes the corporations look as though they're doing a positive thing. It looks like corporate social responsibility, but in reality, its marketing."
In a way, Linn's comments remind me of a complaint against the tobacco industry and their public service advertisements: those PSAs seem to provide a forum for companies with dubious histories to rectify their image, which turn may help their sales (and thus achieve the opposite of what the PSAs were ostensibly designed to achieve). In a recent Wisconsin Law Review article, I outlined a similar idea in regards to fast food companies promoting "eat well" campaigns, while simultaneously promoting the consumption of Big Macs and Happy Meals etc.

It would be interesting to hear what these shoe companies have to say about their donations, but they have declined comment. I imagine that they have concluded that the value of the brand loyalty they are establishing with boys is worth more than the cost of the donated sneakers, while for girls, they have reached the opposite conclusion: the value of establishing that type of brand loyalty is less than the cost of donations.

Economically-sensible, perhaps, but socially desirable?

Note: the picture above is from Aaron Renier's art collection.

Thursday, July 20, 2006
Welcome Travis Tygart

I am delighted to announce that Travis Tygart will be filling in for me as a guest contributor next week. Travis is the Senior Managing Director, General Counsel of the United States Anti-Doping Agency (USADA). USADA is the independent, nongovernmental anti-doping agency for Olympic sports in the U.S. and is dedicated to protecting the integrity of competition and the rights of clean athletes to participate in drug free competition.

Travis is responsible for all legal matters of USADA including the handling of alleged doping offenses in arbitration before the American Arbitration Association and the Court of Arbitration for Sport. He was responsible for the investigation into the designer steroid THG and the BALCO drug conspiracy. Travis was involved with drafting the USADA Protocol for Olympic Movement Testing and the World Anti-Doping Agency’s Code. He served as the legal expert for the WADA Independent Observer Team at the 2002 Commonwealth Games in Manchester, England and was a USADA representative at the 2003 World Conference on Doping in Sport in Copenhagen, Denmark. Travis has been a participant at the Council of Europe, the Association of National Anti-Doping Agencies and was a presenter at the WADA OOC Symposium in October 2003.

While Travis will be unable to answer specific questions about legal matters involving USADA (his client), his insight and experience with respect to the use and testing of performance enhancing drugs will make an interesting read.

Wednesday, July 19, 2006
Steroids in Golf?

By now you are probably tired of reading and hearing about the Bonds indictment and his possible suspension by MLB. But you might not have read or heard about the latest in the "war on steroids": Testing for steroid use has officially begun within the sport of golf ("Golf Tournament Doing Drug Testing"). According to the press release, testing will be administered at the World Amateur Team championship in South Africa at the end of October. What's amazing is that the tournament directors don't even think at the moment that there is much use of performance-enhancing drugs in the sport. They support drug testing in golf "to put the sport into line with the World Anti-Doping Agency's code governing all sports, and to stop performance-enhancing substances from creeping into the game."

Will somebody please STOP THE MADNESS! First and foremost, why test for steroids when there is no evidence whatsoever of any steroid use in the game of golf? Secondly, why would they think that such use would "creep" into the game? Are they afraid that golfers are going to start bulking up in order to give them more distance on their drives? Is "muscle recovery time" a big issue among golfers these days? Basically, it's complete speculation!

I came across an interesting article on this subject written by Matthew Rudy of Golf Digest ("Steroids: How real a threat?"). Rudy notes that no professional tour has specific language in its rules prohibiting performance enhancing substances. The PGA and LPGA tours' professional conduct rules prohibit players from using or selling illegal substances, but neither tour has a testing procedure in place to detect any kind of illegal drug, recreational or otherwise. PGA Tour commissioner Tim Finchem says the tour would not hesitate to incorporate a random drug-testing program IF it had evidence of a pattern of use by players:
"I don't think it is naive to think our players follow the rules. Maybe there are doctors who would say that steroids would help a player hit a golf ball farther. We could debate that, and we could debate that the side effects might hurt a player other ways. I don't go there. We have a rule, and we expect players to follow it. If we have credible evidence to think that a player was taking them, we would consider taking other measures. The speculation about steroids in golf isn't surprising. There is so much focus on steroids in other sports. There's an influx of more athleticism in our sport, and the workout regimens our players are undergoing. And there's a focus on the increased distance players are hitting the ball. That's what it is -- speculation. We rely on our athletes to call the rules on themselves. We have a long tradition of players following the rules, even when some of the rules are odd."
I suppose that if you believe that steroid use would help a hitter drive a baseball farther, then to be consistent you must also believe that steroid use would help a golfer drive a golf ball farther. All this time, I suspected that the reason professional golfers have been driving the ball better over the years was mostly attributed to technological advancements in golf clubs, golf balls, and training equipment.

Tiger, you're next....

Tuesday, July 18, 2006
New Sports Law Scholarship

New this week:
Lindsay M. Korey Lefteroff, Student Article, Excessive heckling and violent behavior at sporting events: a legal solution?, 14 U. MIAMI BUS. L. REV. 119 (2005)

Clary Moorhead, Note, Revenue sharing and the salary cap in the NFL: perfecting the balance between NFL socialism and unrestrained free trade, 8 VAND. J. ENT. & TECH. L. 641 (2006)

Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006)

Stphen F. Ross & Stefan Szymanski, Antitrust and inefficient joint ventures: why sports leagues should look more like McDonald's and less like the United Nations, 16 MARQ. SPORTS L. REV. 213 (2006)

Geoffrey Christopher Rapp, Affirmative injunctions in athletic employment contracts: rethinking the place of the Lumley rule in American sports law, 16 MARQ. SPORTS L. REV. 261 (2006)

Ola Olatawura, The "theatre of dreams"?--Manchester United FC, globalization, and international sports law, 16 MARQ. SPORTS L. REV. 287 (2006)

Holly Hogan, Student Article, What athletic departments must know about Title IX and sexual harassment, 16 MARQ. SPORTS L. REV. 317 (2006)

Matthew R. Wilmot, Baseball Bats in the high tech era: a products liability look at new technology, aluminum bats, and manufacturer liability, 16 MARQ. SPORTS L. REV. 353 (2006)

Susan K. Menge et al., 2005 annual survey: recent developments in sports law, 16 MARQ. SPORTS L. REV. 381 (2006)

Paul M. Anderson, Book Review, Reviewing Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX, 16 MARQ. SPORTS L. REV. 461 (2006)

Darren R. Merten, Index: Sports law in law reviews and journals, 16 MARQ. SPORTS L. REV. bi-bvi (2006)

Friday, July 14, 2006
New Sports Law Scholarship

New this week:
W. Burlette Carter, The Age of Innocence: the first 25 years of the National Collegiate Athletic Association, 1906-1931, 8 VAND. J. ENT. & TECH. L. 211 (2006).

Amanda Schlager, Note, Is the suite life truly sweet? The property rights luxury box owners actually acquire, 8 VAND. J. ENT. & TECH. L. 211 (2006).

Open Letter to Bud Selig

Dear Mr. Selig:

I understand that you are disappointed and angered by Jason Grimsley’s recent admission that he used the human growth hormone (HGH) and by his statements that other major leaguers use the banned substance. Last month in your “open letter to fans” you said that you will not tolerate the use of HGH and other performance-enhancing drugs in baseball.

It is time to get aggressive with the union, more so than you have ever been before. On the eve of negotiations over a new collective bargaining agreement, and with the fans 100% on your side in "the war on steroids," the timing could not be better. Major League Baseball should not waste its time and money on research to determine how to detect HGH, because while it is doing that, somebody else will be developing the next masking agent or magic "whizzer" apparatus to prevent MLB’s new testing methodology from detecting the HGH. By the time your new test is ultimately developed, players will be experimenting with gene therapy and the replacement of human tendons with animal tendons.

So how do you fix the problem? Suspensions and fines for positive drug tests are not the answer because (with a few limited exceptions) players are not testing positive! In your open letter, you alluded to the powerful investigative efforts of the FBI and that players are no different from anyone else in our society. Maybe you could consider how the FBI catches people who lie and cheat -- they use lie detector tests. For example, the FBI is now administering polygraph tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks. As one particular FBI director noted, "There is no more powerful tool in our tool bag than lie-detector tests."

Now, I know what you are thinking: Drug testing and discipline is clearly a "mandatory" subject as defined in the National Labor Relations Act (i.e. “wages, hours and conditions of employment”) that requires you to negotiate with the union because it pertains to conditions of employment. So how do you get the union to agree to polygraph testing with respect to performance-enhancing substances (including gene therapies, surgeries, etc.)?

Here’s how. We all know the first question that union head Don Fehr is going to ask you at the bargaining table in a few months: “What’s your proposal on revenue sharing?” You should take the position that revenue sharing is an issue that only concerns the teams and is not a mandatory subject that you are required to negotiate with the union because it does not relate to players’ wages. Mr. Fehr will respond that revenue sharing impacts wages because if large market teams must pay a certain percentage of their revenue to small market teams, it constitutes an expense that impacts a team’s bottom line and the amount it is able or willing to spend on payroll. Of course, so does a team’s stadium lease expense and the amount it charges customers for tickets, hotdogs and beer, but those are not mandatory subjects. For example, if General Motors enters a joint venture with a competitor agreeing to share a percentage of revenue, it obviously impacts GM’s bottom line and indirectly impacts how much it pays its workforce, but it is not a mandatory subject that needs to be negotiated with the union. Simply tell Mr. Fehr that you will negotiate revenue sharing if the players agree to periodically take lie detector tests regarding their use of performance-enhancing substances, surgeries, therapies and the like.

Now when he jumps up and down and screams at you such phrases like “decertification,” “strike” and “unfair labor charge,” stick to your guns. Because even if you have to spend legal fees to validate your position in front of the NLRB or in a court of law, the legal fees will be much cheaper than funding research to detect HGH and, more importantly, much more effective in catching cheaters!


Rick Karcher

Wednesday, July 12, 2006
New Article on Bill Walker and Possible Legal Options for NBA Draft Eligibility

Tom Groeschen of the Cincinnati Enquirer has a new and interesting article on the possible legal options for Bill Walker, the high school phenom who has good reason to argue that he should be eligible for the 2007 NBA Draft ("Lawyer: Walker Has a Case", 7/11/2006). Yesterday we discussed Chad Ford's article on Walker's potential arguments, and those of O.J. Mayo.

I am the lawyer referenced in Groeschen's article title, and while I do believe that Walker would have a strong case (as I discuss in the article), I would like to add the following proviso: if Walker were to pursue eligibility for the 2007 NBA Draft, his best initial approach would not be litigation with the NBA, but rather a concerted and constructive effort to discuss the matter with the NBA, and hopefully persuade the league to reconsider its thinking; litigation here, as in every dispute, should only be used if all reasonable attempts at negotiation fail. Moreover, being a litigant can be stressful and emotionally-draining, and that's especially true in a highly-publicized trial.

But as we also know, sometimes all reasonable efforts at negotiation do not succeed, and litigation is the only and correct option to right a wrong. Should that occur in this instance, I believe that Walker would have an extremely strong case.

Does a "Diploma Mill" School Have a Defamation Claim Against the NCAA?

Last week the NCAA released its second list of high schools from which it will no longer accept transcripts that supposedly provide easy academic solutions for high-profile athletes. According to Pete Thamel of The New York Times, none of the 25 disqualified schools on either list are recognizable athletic powerhouses, with the exception of maybe Christopher Robin Academy in Queens where New York City students have long gained high school credits during the summer and winter breaks ("N.C.A.A. Schools' List Stirs More Controversy"). However, the NCAA also announced a separate list of 22 schools that it had cleared for prospects for only the fall of 2006 and that will be subject to review by the NCAA, which list includes some traditional prep powerhouses with strong academic traditions such as Oak Hill Academy in Virginia, Bridgton Academy in Maine and Fork Union Military Academy in Virginia.

According to Steve Smith, who has coached basketball at Oak Hill for 23 years: "Its embarrassing to be on the list with some of those schools. Twenty-two schools in the whole country, and we're one of them. To me, it makes the N.C.A.A. look like it's not credible." Oak Hill president Michael Groves added: "I'm absolutely stunned on a couple of levels. I've never spoken with anyone from the N.C.A.A. I'm a bit outraged that I'm learning about a list from reporters that's damaging Oak Hill's reputation."

Last month on the blog, I discussed how a claim against the NCAA by an affected prep school alleging a constitutional violation would most likely fail because the U.S. Supreme Court has made clear that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools. But the statements made by Smith and Groves at Oak Hill have connotations of a possible defamation claim against the NCAA, which could possibly be a much tougher case for the NCAA especially since Oak Hill is obviously not a voluntarily member of the NCAA and thus not subject to its rules and regulations. Under most state defamation laws, entities may be defamed with respect to institutional characteristics such as honesty and efficiency.

In a defamation case, Oak Hill's damages would most likely be presumed because its inclusion on the list of 22 schools would be a libel action (in slander, a plaintiff typically must prove pecuniary loss). Oak Hill could argue that the fact of being included on the list is essentially a statement made by the NCAA that Oak Hill's (or any other school on the list for that matter) quality of education is poor and that some or all of its offered courses are simply not worthy of recognition by any college or university. Such statements are most likely "defamatory" by definition because the list is a national publication that could easily deter prospective students (athletes and non-athletes) from enrolling.

It would also seem that the NCAA would have a difficult burden to prove the truth of its assertions when Oak Hill has such a strong academic tradition (Oak Hill opened in 1878, costs $21,000 a year in tuition and has about 50 staff members). Indeed, the NCAA didn't even visit Oak Hill's campus. According to NCAA representative Kevin Lennon, irregularities in paperwork caused the NCAA to flag some schools despite not having visited them and that a "time crunch" prevented the NCAA from visiting every school. Smith said: "I'm sure if they come visit, we'll be off the list. But you can't take back what they already did. To me, it's a total sham, a joke." Oak Hill is not the only school listed that wasn't visited by the NCAA. The Associated Press reported that Lt. Gen. John E. Jackson Jr., president of Fork Union Military Academy in Virginia, said NCAA officials have neither visited its campus nor expressed specific concerns about its curriculum either.

It's interesting that the NCAA chose to single out specific schools by name. Couldn't the NCAA instead have listed all of the specific criteria that a high school must meet in order for a transcript to be accepted (i.e. minimum number of faculty members, minimum number of hours of instruction in the classroom, etc.)? The NCAA might want to reconsider what it's doing on this one....

Tuesday, July 11, 2006
O.J. Mayo and Billy Walker to Challenge NBA Age Restriction?

ESPN's Chad Ford has an excellent and extensive piece on two amateur players who may put the new NBA age restriction to the test next year: O.J. Mayo (right) and Billy Walker (left), the top two high school seniors in the country. Both players are one year older than a traditional high school senior and, for different reasons, if they decide to drop out of high school and not graduate, they could argue that they "would have graduated" this year. If successful in that argument, they would then be eligible for next year's NBA Draft, since according to the new CBA between the NBA and NBPA, an American amateur player must be at least 19 years-old on December 31 of the year of the NBA Draft (both Mayo and Walker would be in 2007) and that at least one NBA season must have passed from when he graduated from high school, or when his graduating class graduated from high school, and the NBA Draft. If eligible, both would likely be lottery picks, with Mayo possibly going second overall, right after Greg Oden.

Walker has the stronger case for arguing that he "would have graduated in 2006" because the Ohio High School Athletic Association just announced that he should have been a senior this past year. Why? Because a transcript error that resulted from transfering between different schools caused his credits to be counted incorrectly. So according to the Ohio High School Athletic Association (which obviously has no stake in whether Walker can turn pro), Walker has completed four years of high school and four years of high school basketball.

Mayo's claim is based on the fact that he was held back a year early in his schooling, and would have graduated in 2006 but for that, and that he has played high school ball since he was in the 7th grade.

Ford interviews Tim Frank of the NBA and me for the story. Perhaps not surprisingly, we don't agree on whether the players (and especially Walker) should be eligible:
NBA spokesman Tim Frank said that he believes neither player is eligible for the 2007 draft.

"It's when you graduate (or when your class would have graduated), not when your eligibility is up," Frank said via e-mail. "So just because Walker is ineligible [to play high school basketball], he still hasn't graduated, so his class is the 2007 class."

"Mayo being held back eight years ago does not give you a claim to [the 2006 graduating class] as his 'original class.' " Frank said. "He is clearly scheduled to graduate in 2007."

However, sports law expert Michael McCann disagrees.

McCann, a law professor at the Mississippi College School of Law, is the author of the popular Sports Law Blog. He was part of the legal team that represented Ohio State running back Maurice Clarett in his (unsuccessful) legal challenge of the NFL's age restriction.

"Billy Walker should be eligible for the 2007 NBA Draft," McCann told me in an e-mail interview. "An honest interpretation of the CBA dictates that conclusion: His high school class would have graduated, and he would satisfy the requirement that he be at least 19 years old during the calendar year in which the 2007 NBA Draft is held. I believe that the NBA would ultimately recognize the expertise of the Ohio High School Athletic Association (which presumably knows its schools better than the NBA), because if it doesn't, it may unwittingly invite Walker to challenge the age restriction in court, something which the NBA likely wants to avoid."

"Walker's claim for eligibility appears stronger than that for Mayo, although Mayo's situation invites the question of how to measure one's graduating class," McCann said. "Mayo could argue that it should be measured from when he originally began schooling, although the NBA would likely argue that it should be measured from when he began high school. Both arguments are rational, and would likely require the opinion of education experts. The fact that he was playing high school ball as a seventh-grader seems to suggest what his school thought of his class."

We then discussed the implications of either Mayo or Walker bringing a lawsuit, and the applicability of Clarett v. NFL in that lawsuit:
"Unlike when Maurice Clarett challenged the NFL's age eligibility rule, Walker's lawsuit would enjoy empirical data showing that prep-to-pro players have, on average, performed better than any other age group to enter the NBA," said McCann.

"Moreover, while it is commonly assumed that Clarett v. NFL is the definitive case on age restrictions, it isn't. It is the holding of one United States Court of Appeals, and it is unclear how the other 12 United States Courts of Appeal would hold on the matter.

"Even though the NBA's age restriction has been collectively bargained, a good argument can be made that it only affects parties (prep players) outside of the two collective-bargaining units (the NBA and the NBPA), and thus should not enjoy immunity from antitrust laws."
As a separate matter, we also discussed the legal implications of why 19-year old international players are able to more easily enter the NBA Draft than are 19-year old American players. While both groups of players must be at least 19 by December 31 of the year of the draft, the international players do not have a one-year waiting period after high school.

"Should a litigation occur, a court would likely wonder why there exists a more restrictive rule for American amateur players than foreign players, and should it apply antitrust law, a court would likely compare the respective NBA performances of those two groups," McCann said.

This will be a very interesting to story to watch. Ford's article also states that while both Mayo and Walker presently intend to attend college, they would rather go to the NBA directly if possible. The article addresses other topics as well, and is well worth a read (and I strongly recommend ESPN Insider if you don't yet subscribe, especially since you also get ESPN The Magazine).

On three separate notes: 1) thanks to Michael Ryan of Bearcat News for his excellent insight earlier in the day; 2) thanks to Jeff Clark of the highly-addictive Celtics Blog, who wrote a nice posting about the ESPN article on the equally-highly-addictive True Hoop; and 3) since the ESPN article is bringing us a large number of new visitors today, welcome to our blog!

Monday, July 10, 2006
NBA Earnings as a Marathon, not a Race: Lebron James to Take Less Than Max

According to ESPN's Stephen A. Smith, Lebron James has informed the Cavaliers that while he is willing to sign an extension, he will not sign a max contract (5 years, $80 million), which the Cavs prefer. Instead, he is only willing to sign a 4-year extension worth $60 million. Considering that NBA contracts are guaranteed, you might wonder why he wouldn't want to maximize his earnings and take as much money as is on the table? It's because of this:
With the NBA's collective bargaining agreement set to expire at the end of the 2010-11 season, James could be positioning himself for an even bigger payday as a free agent when the cap goes up. Under a new agreement, James and other big stars could be in line for deals in the neighborhood of six years and up to $150 million.
James' age may be a factor here as well. Incredibly, he's still just 21 years-old. And when his 4-year extension expires, it will be the summer of 2011 and he will be 26 years-old. It would seem that he would be better positioned for the $150 million, 6-year contract at that point than if he were 27 years-old. But then again, it probably won't matter because he'll likely be the NBA best's player and able to command the max regardless of whether he is 26 or 27.

But here's where age may matter: let's think about James' bargaining position after that $150 million, 6-year contract expires: he would undoubtedly be in a better position for another lucrative contract at age 33 than at 34. So perhaps Lebron and his agent, Leon Rose, are astutely thinking ahead, to a time that may seem very far off (2017 or 2018) but is highly influenced by what they do now, in 2006.

Virginia Sports and Entertainment Law Journal's Article Submissions Drive

The Virginia Sports and Entertainment Law Journal ("VaSE") is conducting a submissions drive for possible publication in the journal. So if you are a law professor, other type of professor, practicing attorney, judicial clerk, law student, or graduate student who has written a substanative piece that pertains to sports or entertainment law, please consider submitting it. Unlike some law reviews, VaSE accepts note submissions from other schools' students, so if you are currently a law student, you don't have to be one at the University of Virginia School of Law to submit.

I was Editor-in-Chief of VaSE from 2001-02 and published an article in VaSE in 2004. I believe it is an excellent scholarly publication with an outstanding reach into the sports and entertainment world. It certainly helped me break into the industry. And it's readership includes sports agents, sports litigators, team executives, music industry executives, recording studios, and perhaps less interesting academic types--people like me and law librarians.

To submit a piece, all you have to do is attach your writing to an e-mail and send it to Robby Forbes, VaSE's current Editor-in-Chief, to his e-mail address: rdf4v[at] It's as easy as that.

Give it a shot!

Friday, July 07, 2006
Woman Fights Boras Over Sale of Anti-Damon Merchandise

Curt Brown of The Standard-Times reported last week about a dispute between Johnny Damon (along with his agent Scott Boras) and Ann Sylvia. Ms. Sylvia operates a business out of her home, which she started in 2001, specializing in the sale of baby clothing and household decorations/accessories on eBay. More specifically, she sells "Damon Sucks" bibs, onesies and toddler T-shirts on ebay.

Sylvia, of New Bedford, Massachusetts, was hurt first when the Red Sox' former star signed with the Yankees for $52 million. She was hurt a second time when Boras invoked the intellectual property rights to Damon's name and blocked the sale of the parody items on eBay using eBay's VeRO program. Damon and Sylvia subsequently compromised, and the settlement terms require her to delete the specific references in her description of the merchandise that identifies the products as being critical of Johnny Damon. The merchandise will just say "Damon Sucks," but will not identify the person as Johnny Damon, as it previously did.

Sylvia's unique perspective on her dispute with Boras is quite interesting and worth reading. She received the help of an attorney at the Public Citizens Litigation Group, Greg Back, who analogized the "Damon Sucks" parody to the parodies that were the subject in Cardtoons v. MLBPA and held to be protected by the First Amendment. Back opined as follows:
I think the case closest on point to your situation is the Cardtoons case. Cardtoons makes parody trading cards with caricatures of Major League Baseball players along with critical commentary. MLB sent a cease-and-desist letter, and Cardtoons sued for a declaratory judgment. The court held that even though the cards ran afoul of the Oklahoma right of publicity statute, they were protected by the First Amendment. The court wrote that "the cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball. While not core political speech (the cards do not, for example, adopt a position on the Ken Griffey, Jr., for President campaign), this type of commentary on an important social institution constitutes protected expression." MLB argued that the cards should not be protected because Cardtoons was selling them for a profit. In response to this, the court wrote, "we see no principled distinction between speech and merchandise that informs our First Amendment analysis. The fact that expressive materials are sold neither renders the speech unprotected, nor alters the level of protection under the First Amendment. Cardtoons need not give away its trading cards in order to bring them within the ambit of the First Amendment."
Geoff recently discussed the legality of a music band's use of the name "Gnarls Barkley". The Damon dispute also brings to mind the Yogi Berra lawsuit in which he filed a complaint against TBS for using his name in conjunction with an advertisement for 'Sex and the City' that read, "Yogasm: a) a type of yo-yo trick b) sex with Yogi Berra c) what Samantha has with a guy from yoga class." As Greg discussed on the blog last year, Berra and TBS subsequently settled that lawsuit for an undisclosed amount, but which Berra's attorney referred to as "substantial".

It's refreshing to see somebody play "hardball" with Boras, and win. Maybe the owners could learn something from Ms. Sylvia....

Thursday, July 06, 2006
Hedge Funds Investing in "Athlete Futures"

At the Sports Economist blog, Skip Sauer has some interesting thoughts stimulated by a Wall Street Journal article about a European hedge fund that invests in "transfer rights" for young, potentially undiscovered soccer players. The fund profits when athletes' contracts are bought by more prominent, weathly franchises.

Sports Policy Blog

Sports Law Blog reader Sokki Chen, a sports management student at the University of Massachusetts who this summer is working at the International Paralympic Committee in Germany, has started a new and very interesting blog: Sports Policy Blog. Her blog has some excellent posts to start:
It should be a great blog to check out regularly.

Wednesday, July 05, 2006
Good Player Personnel: Is it Moneyball, Scouting, or Sheer Luck?

Michael Bond of New Scientist Magazine has a fascinating interview with statistician Nassim Nicholas Taleb ("Life is Unpredictable: Get Used to It," 7/5/2006, subscription only), in which Taleb argues that humans are terrible at making predictions and that they tend to place false confidence in statistical models that yield results perhaps no better than mere guessing or sheer serendipity. Along those lines, the idea goes, we strive for explanations and patterns because they give us a greater sense of control, even when those explanations and patterns may be completely illusory. Here are some excerpts from his comments:
Our brains operate on autopilot most of the time . . . Our track record [for predictions] is quite dire. Look at the net, computers, lasers. The internet was designed as a military system, not for chat rooms. The person who first marketed computers didn't think he would sell more than five. The laser was designed by a physicist who had no idea how it might be used. You can't even forecast something that would affect us tomorrow - revolutions, wars, epidemics, political changes, economic variables . . . A forecast is irrelevant unless you have an error rate on it. But if this happened, these people would realise there was no point in forecasting, because their error rate would be so monstrous . . . [Successful forecasting is just luck], and you need a lot of luck to forecast things accurately.

[Question: But don't people make predictions based on history all the time?]

As well as our ability to concoct empirically flawed narratives to explain past events, there are biases in history that we don't seem to be aware of and that make us overestimate the causal links between events: for example, when you see only the winners and not the losers. When you look at the fossil record, you see only the species that left a fossil. You cannot make a generalisation of all species just from fossils - you have to take into account the species that left none. History has a lot of hidden pockets. You can't take it any more seriously than a visit to a museum.
What do Taleb's conclusions suggest about things like Moneyball and the rise of more complex-statistical models for player personnel decisions? Do Moneyball teams succeed for reasons that have nothing to do with empiricial approaches or taking advantage of "market inefficiencies"? Are "market approaches" then receciving too much credit (or blame) in management decisions (e.g., whether it is a good idea to draft or sign a particular player)? Of course, Nassim's conclusions don't validate traditional scouting models either, because they too would invite the same after-the-fact explanations for lucky results.

So statistics or not, is team management really about luck and coming up with an explanation later?

New Sports Law Scholarship

New this week, including a nicely done law review note for which I served as adviser:
Tyler Pensyl, Comment, Let Clarett play: why the nonstatutory labor exemption should not exempt the NFL's draft eligibility rule from the antitrust laws, 37 U. TOLEDO L. REV. 523 (2006)

Robert T. Razzano, Comment, Intellectual property and baseball statistics: can Major League Baseball take its fantasy ball and go home?, 74 U. CIN. L. REV. 1157 (2006)

Cubs Continue Spending Spree: Record Bonus Given to 11th Rounder

Baseball America's John Manuel reports this week that the Chicago Cubs just gave their 11th Round draft pick Chris Huseby a $1.3 million bonus (first round money), which is the highest bonus ever paid to an eleventh rounder by $750,000 ("Cubs Give 11th-Rounder Huseby Record Bonus"). Huseby is a 6'7" right-handed pitcher out of Martin County High in Stuart, Florida. The Cubs also reportedly gave their 14th rounder, a prep outfielder from Oregon, a signing bonus in the amount of $500,000 (third round money). Recently, I discussed the contract the Cubs just gave to their fifth rounder, two-sport Notre Dame star Jeff Samardzija, who is guaranteed $7.25 million if he makes baseball his primary sport sometime over the next five years.

I have been following the MLB draft each year since I signed my first minor league contract back in 1989, and I can't remember this type of free spending on amateur players since 1996 when Scott Boras had a couple of his draft picks designated as free agents by exploiting a loophole in the Major League Rules regarding the tendering of contracts. I'm not one that questions teams' decisions when it comes to scouting and draft picks because that's their business and that's what they know best, but Huseby's signing is even more intriguing than the Samardzija signing because Huseby had Tommy John surgery in the spring of 2005 and only pitched a total of 5 innings in 4 appearances all spring in 2006! How could the Cubs possibly be that confident about Huseby's projectability having seen him throw only a few innings this past spring and coming off Tommy John surgery last year? Furthermore, in those few one inning appearances, it is reported that he threw in the 90-93 mph range, which is not considered to be "lighting up the radar gun" by any means. I'm just a law professor, but doesn't the fact that he has only thrown 5 innings all spring tend to suggest that maybe he's still not healthy and that maybe he has trouble consistently maintaining that velocity?

According to Manuel: "Huseby's family said it would take first-round money for the righty to bypass college, and the Cubs had enough of a track record on Huseby (including crosschecking him this spring) to feel comfortable rolling the dice." I guess I could understand rolling the dice for maybe $100,000, but for $1.3 million? And it's only the first week of July! Even if the Cubs really want to sign him, they still have plenty of time left before he starts college in the fall in which to negotiate a lower signing bonus figure. Just because the family said it would take first-round money to sign him, doesn't mean they would not have ultimately settled for much less. It's interesting to note that Huseby and Samardzija have the same agent (oops, sorry, I mean "advisor"), who apparently is a long-time friend of Cubs GM Jim Hendry.

Tuesday, July 04, 2006
Hoop Dreams: The Missing Link between NBA Draft Age Eligibility and Justin Jenifer

Chris Graham of the Augusta Free Press has an in-depth look at the new age restriction for the NBA draft, which requires that a player be at least 19 years-old on December 31 of the year of the NBA Draft and that at least one NBA season must have passed from when he graduated from high school, or when he would have graduated from high school, and the NBA Draft. He interviews Paul Haagen, Rick Karcher, and me, and we discuss the rationales behind the new rule. Rick outlines the NBA's business arguments for pursuing it, while Paul and I question the logic behind it, especially considering the empirical data on players who have pursued the NBA out of high school (i.e., they are small, self-selected group who has averaged more points, rebounds, and assists than the average NBA player or the average player of any age group, and that includes high school players who failed to make the NBA and who were counted as "0" in the empirical analysis).

We then discuss different reasons for why it may be difficult for a player to challenge it in court.

Rick describes how the rule only affects players outside of the bargaining unit, and thus why existing players don't have a clear incentive to fight it:
The way I look at this now - from a bargaining standpoint, the union doesn't have an incentive to vigorously fight the owners on this issue. It doesn't affect existing players at all. You're talking about a rule that affects prospective players. Existing players are not affected by it. So the union in the bargaining process isn't giving up much when they agree to this - and in return the existing players are getting something of value in the form of an increased percentage of league revenue from the owners.
I reflect upon my experience as having been one of Maurice Clarett's lawyers in Clarett v. NFL, and discuss the practical difficulties of being a plaintiff in an age-eligibility case:
I think one of the difficulties for a player to sue is that they'll automatically be labeled a troublemaker, somebody who's trying to break the system, a maverick. It's going to take a lot for a 17- or 18-year-old to be a plaintiff in a litigation where much of the media and most of the fans will be immediately against him - putting a lot of pressure on him and his family. We saw that with Maurice Clarett - he immediately became vilified when he brought the lawsuit. Anybody who tries to challenge the system is deemed as a troublemaker. We've seen that in other contexts of the law.
With that analysis in mind, I found a story by Eli Saslow in today's Washington Post very interesting. Entitled, "Is There Such a Thing as a Perfect 10?," Saslow discusses 10-year old Justin Jenifer, a 4-6 point guard from Maryland who is considered by some to be the best basketball player aged 10 and under. The article details how Justin is "pursued by Amateur Athletic Union summer league teams that troll nationally for players, high school coaches who recruit aggressively and shoe companies whose scramble for potential future endorsers continues for a second decade." It also describes how Justin's life seems completely invested in basketball.

By implication, Saslow's article suggests that a higher age floor for the NBA will likely have no effect on the Hoop Dreams culture of youth basketball. There will still be the shoe companies jockeying for influence, the coaches and scouts from amateur leagues, high schools, and colleges trolling the sidelines, and the omnipresent parents obsessed with making their kids stars. And perhaps instead of 18-year old NBA players, maybe we should be more worried about things like this:
Across the gym, Scottie Bowden pulled down a flat-brimmed Washington Nationals hat until it almost shielded his eyes. A representative of Adidas, Bowden had invested many weekends and about $20,000 of company money in Justin and his teams. Bowden had provided the boy and his teammates with sneakers and travel money to tournaments in an effort to build brand loyalty in a 10-year-old with distant NBA prospects. In Justin, had Bowden accurately identified a star?

Monday, July 03, 2006
From Vikings on Boats to Timberwolves in Cars: More Minnesota Mischief

It turns out that the Minnesota Timberwolves' Eddie Griffin's March 30th car accident may not have been related to his "dropping his cell phone." A new civil suit filed in Ramsey County, Minnesota by the owner of the parked vehicle that Griffin struck claims that the former Seton Hall star was drunk and distracted by the pornographic video playing on a monitor on his dashboard, and more specifically, that Griffin admitted to those around him that he was masturbating while driving. The Complaint filed by Jamal and Lindsey Hassuneh is not only brought against Griffin, but the City of Minneapolis, the responding officers, and the Chief of Police.

After the accident, Griffin entered the nearby convenient store owned by the brother of Mr. Hassuneh. The store's security camera catches the rest. Multiple times on tape, Griffin admits that he is drunk and offers to buy the Hassuneh's any car, but "not a Bentley." He also pleads with the witnesses not to call 911 as he is "drunk." Upon arrival at the store, the responding officers do not give Griffin a field sobriety test, but instead, drive Griffin home (out of their jurisdiction) to St. Paul. The officers are caught on the store's camera stating "He is not going to get a DWI." The officers did issue Griffin minor violations for not producing his driver's license and inatentive driving.

The plaintiffs are not only seeking compensation for property damage, zone of danger damages, and punitive damages, but allege state and Federal violations against the officers, the Chief of Police, and the City of Minneapolis for violation of constitutional rights for failure to properly conduct an investigation into the incident and improper hiring and training of the responding officers. See accident report here.

Chief Dolan said that the Minneapolis Police Department is conducting its own investigation into the matter.

While the Timberwolves are not named as a party to the Suit, the Complaint addresses the fact that Kevin McHale (GM) was aware of Griffin's alcohol and drub abuse (Griffin spent time at Betty Ford in 2004), as well as his criminal background.