Sports Law Blog
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Wednesday, May 31, 2006
 
Armstrong Cleared of Doping...Sort Of

It's been widely reported today that cyclist Lance Armstrong, to be blamed for starting the rubber bracelet fad, has been cleared by Dutch lawyer Emile Vrijman of charges of doping in connection with the 1999 race. Armstrong has taken Vrijman's findings as a sign of his absolute innocence, although Vrijman's findings actually seem a bit more cautious. Vrijman concludes that the lack of a "confirmation" test rendered the lab work on Armstrong's samples insufficient from a procedural perspective. That is to say, Vrijman doesn't seem to have concluded that Armstrong's samples were free of EPO, just that the procedures weren't sufficient to make a case for a doping violation. I look forward to reading Vrijman's report, which I haven't been able to find on-line so far.

The weirdest thing about this story is the press release issued by the International Cycling Union (UCI), which hired Attorney Vrijman. Here's their take: "The international Cycling Union has learned with great surprise de (sic) declarations conveyed to the Dutch press by Mr. Emile Vrijman, independent investigator within the frame of the urine sample analysis during the 1999 Tour de France case. The UCI firmly deplores the behaviour of Mr. Vrijman, who has prematurely voiced, offending the agreements that foresaw that all parties implied would be informed before any public comment on the report content would be done."

Maybe "deplores" has a different connotation in Dutch than in English? This seems a rather strong statement to make about one's own investigator. And UCI, how about hiring someone who speaks English to proof de press releases from now on? My Dutch sucks, and that's why I don't post on de blog in that language.

UPDATE: The full report is now on-line at the UCI web site.

 
NPR on New Jersey High School Drug Testing

On Monday, the NPR show All Things Considered had a nice feature on New Jersey’s new random drug testing plan for all high school athletes, which will take effect next fall. You can listen to the story here. There are some good stories about the new plan here and here as well as a post by Guest Contributor Jennifer Wieland here. The NJSIAA has now released the list of 80 substances targeted by the test.

To find out what New Jersey high school kids think (including comments such as “Drug testing the students isn't reasonable unless you see that student scratching his/her neck too long 'cause fiends shouldn't be participating in extracurricular activities feel me,” by Newark’s Manny P.) you can go here.

The ACLU thinks the plan is “really poor public policy,” but appears unlikely to mount a challenge because, as Rutgers-Newark law professor Doug Husak observes, the chances of obtaining judicial relief are “very remote.”

Tuesday, May 30, 2006
 
Does he need a warrant for that jump hook?

The New York Post's Page Six reports on an interesting sideline developed by the Miami heat center who we might as well start calling Deputy Diesel: helping U.S. Marshals arrest child pornography offenders. According to the Post, "The 7-foot Miami Heat center has helped make 30 busts in his crusade against kiddie-porn pervs. 'I do not have to run after the people or tackle them. They always surrender peacefully,' Shaq [said]. 'And I'm never afraid. When I arrive, they are really already under arrest.'" Hat tip to the Huffington Post.

Shaq's new federal gig is a supplement to his previous part-time work as a reserve police officer.

 
Minor League Umpires to End Strike

Minor League umpires, who had been on strike and rejected a previous deal, approved the latest contract today. CNNSI has the story here; I have earlier post on the strike here and here.

 
Bagwell Insurance Dispute Litigation Documents

The Jeff Bagwell insurance coverage litigation complaint & answer are on-line at SABR's invaluable Business of Baseball site. See earlier posts on this dispute here and here.

 
130 Teams in the NCAA Tournament? What's Wrong With That?

Vito Forlenza, a sports writer for Comcast.net, wrote a column last week concerning recent proposals to expand the NCAA tournament beyond the current 65-team field ("130 Teams in the NCAA Tournament? That's Just Wrong"). The National Association of Basketball Coaches (NABC) and the Atlantic Coast Conference each have recently expressed support for expansion and both are prepared to increase the pressure on the tournament committee to address the issue when committee members convene for a weeklong meeting next month. The proposals range from expansion to 68 teams, to 80 teams, and to even doubling it to 130 teams! Of course, implementation of any plan would be subject to NCAA approval.

Clemson coach Oliver Purnell, who was recently named president of the NABC, favors expansion to 130 teams:
"Let's say you're at 115 teams. You're being done a favor to be let in, but it ensures that nobody deserving gets left out. What's wrong with making sure the top 100 teams in the country are rewarded with going to postseason play? One more weekend doubles the tournament. ... Man, the excitement--you wouldn't be able to measure it."
However, Forlenza argues that expansion would be an increased burden on the student-athletes:

"What you wouldn't be able to measure is the added strain it would put on the players. The current tournament already lasts three grueling weeks with most teams coming off a week of conference tournaments. All of this postseason play follows a three-and-a-half-month regular season. ... The coaches and conferences don't care. Just making the tournament takes some heat off coaches who are always under intense pressure to win--so of course they favor expansion. And just making the tournament increases revenue for most schools and conferences in so many different ways--so of course they favor expansion. ... If the NCAA allows the tournament committee to cave in to these forces and expand teams' already inflated schedules, the governing body needn't pretend its players are amateurs anymore. I don't want to hear about sluggish graduation rates. I don't want to hear about academic scandals. I don't want to hear about coaches' increasing power on college campuses. I don't want to hear about the overarching virtues of intercollegiate athletics. In fact, I don't even want to hear about players' majors, their GPAs, or how so many of them will turn professional in something other than sports. Because when these kids are playing half an NBA season, they might as well already be professionals."

After reading Forlenza's column, two thoughts came to mind. First, I agree with Purnell. Why not double it? One more weekend of basketball with an additional game for each school wouldn't be that much more physically demanding and it wouldn't affect grades or GPA. Aren't these some of the same supposed concerns asserted any time a playoff system for football is discussed? -- I just don't buy it. The student-athletes who currently get good grades and bad grades will get those same grades regardless of the length of post-season play. And is it really that much of a physical strain on players to add an extra weekend or two of post-season play?

My second thought was that antitrust is no longer a concern to the NCAA with expanding the tournament, now that it owns the rights to the NIT tournament as a result of the settlement reached last summer (which extinguished the antitrust lawsuit brought against the NCAA by the NIT tournament organizers). So it's definitely possible that we'll see some sort of expansion of the tournament, especially if it means additional revenue to schools and conferences.

Monday, May 29, 2006
 
Gilbert Arenas on Arrest Immunity for NBA Players

This needs no comment, only an appreciation for those who live in The Bizarro World:
Gilbert Arenas and Awvee Storey, both of the Washington Wizards, have been arrested on charges of disobeying police.

According to police reports, Storey was blocking traffic in the middle of a busy street in Miami Beach when an officer told him to get back to the sidewalk Saturday night. Storey didn't get out of the street, and the officer arrested him and charged him with failure to obey a command.

Arenas got out of a vehicle and walked toward the arresting officers. According to reports, an officer told Arenas to get back in his vehicle, but he refused, saying he wanted to stand next to his teammate. The officer took Arenas into custody and charged him with resisting without violence.

As Arenas was being arrested, according to reports, he said, "You can't arrest me. I'm a basketball player. I play for the Washington Wizards, and I'm not going to leave my teammate."
"You can't arrest me. I'm a basketball player." Oh, the irony.

Sunday, May 28, 2006
 
Sports Lawyers Association Annual Conference

The SLA Annual Conference is this week (June 1-3) in Toronto, Canada. The brochure for the three-day event is attached. I am a member of SLA, and the Dean of our law school, Peter Goplerud, is a member of the SLA board of directors and will be presiding the event all day on Friday. All of the panelists are highly-respected in their fields, and the conference attracts the attendance of sports industry people nationwide from law firms, sports agencies, team front offices, professional leagues, players associations, collegiate athletics, and academia. The conference is highly educational, as well as a great networking forum. While I am unable to attend this year due to another commitment this week, I highly recommend the event for anyone interested in entering the sports law field (the conference even concludes with a panel entitled, "Breaking Into the Sports Industry").

Saturday, May 27, 2006
 
The Mutants are Coming!

Yesterday afternoon, I snuck away from writing my law review article to catch a matinee of the movie X-Men III: The Last Stand, and I’m pretty sure steroids are old news. The next big thing may well be performance enhancing surgery, but surely, the mutants are coming. Will genetic mutants be eligible to participate in American sports, or international competition? Of course, there are some sensible grounds for excluding some of the X-Men. Wolverine, after all, has both a genetic mutation (quick healing) and a surgical alteration (adamantium fused with his skeletal structure, plus claws). Excluding surgically altered mutants makes sense. Let’s just permit natural mutants play baseball and the like. But what is a natural mutant? Does one have to be born a mutant, like most of the X-Men? What about Spiderman, who was not born a mutant? Was his mutation “natural”? Perhaps we could simply require mutants, and their close friends, aliens, to not use their powers while participating in sports? For example, on Smallville Clark Kent was able to play football in high school (quite successfully) without using his powers. Maybe we just need a sensible rule that mutant and alien powers can’t be used on the field. But then again, such a rule might be hard to enforce. How can we be sure Clark wasn’t using his powers when he engaged in his Vince Younge-esque heroics?

(Attempted) Satire aside, some of these issues may actually be relevant. There are interesting essays on the subject here, here, here and here. Perhaps the most striking story about genetic mutation in sports is that of Finnish Olympic skier Eero Maentyranta. Eero won two gold medals at the 1964 Olympics. Later, the world learned that he had been born with a version of the EPO gene that caused him to produce 25-50 percent more red blood cells than a typical human. Red blood cells distribute oxygen to the body’s muscles; his genetic advantage gave Eero superior aerobic endurance. Synthetic EPO is of course banned by the World Anti-Doping Agency; should a genetic mutant like Eero also be excluded? Can we draw a distinction here between a “natural” mutant and the recipient of gene therapy?

Of course, one might argue that all professional athletes are genetic “freaks,” in the sense that their combination of strength, speed, agility and hand-eye-coordination is well above the mean characteristics of our species over the course of human history. Some skills may be learned, but there are very few professional athletes who can’t claim at least some combination of natural “genetic” gifts.

Any conflict between this post and my earlier post on the irrelevance of evolutionary biology is entirely intentional.

Friday, May 26, 2006
 
Agents Who Bully NBA Mock Draft Websites: "Don't Post That!"

DraftExpress provides mock NBA drafts and background information/observations on prospective draft picks. I read it regularly, just as I read NBA Draft Net and Chad Ford's ESPN draft website regularly--they are well-written and informative.

In its latest mock draft, DraftExpress predicts that LSU freshman Tyrus Thomas will be taken 7th overall, by the Boston Celtics. The prediction is surprising, as most other mock drafts have Thomas going 2nd or 3rd.

But what's surprising to some is apparently offensive to others, and specifically Thomas' agents, Brian Elfus and Mike Siegel. They rescinded an invitation to Jonathan Givony, President of DraftExpress, to attend a private workout of Thomas, telling Givony in a text message that they are "not happy with [DraftExpress] having Tyrus 7th," and that DraftExpress "needs to adjust that ASAP." To his credit, Givony responds:
DraftExpress never has and never will sacrifice our journalistic integrity by bowing down to demands of agents. We cannot allow our site to be manipulated in such a way that will hurt our credibility and detract from the many people who visit us to read our honest and professional opinion. If it’s at all possible to get access to a workout and do our job objectively the way our visitors have become accustomed to in the past, we will always jump on the opportunity.
I wonder what Tyrus Thomas thinks about all this? His agents are trying to strong-arm those who run mock draft websites? Most clients probably wouldn't perceive that as beneficial to their draft prospects or as a good use of their agents' time. They may also begin to wonder about how confident their agents are in them.

But to play Devil's Advocate, Thomas' agents would probably argue that NBA general managers are influenced by these websites, and that exerting such suasion thereby benefits their clients. But then again, even if these websites are influential--a questionable assumption, to say the least--ill-advised strong-arm tactics in text messages are never recipes for success. One of the drawbacks of test-messaging, even more so than e-mail, is that it can encourage hasty, not-well-thought-out correspondences. I think we see that here. At least I hope so.

 
Boston Bruins Hire Sports Lawyer Peter Chiarelli as General Manager

The Boston Bruins are set to hire Attorney Peter Chiarelli as their new general manager. Chiarelli, 41, has been assistant general manager of the Ottawa Senators. He has an interesting background for those who aspire to front office jobs. In 1987, he received a B.A. in economics from Harvard, where he was captain of the Crimson hockey team. After college, he played pro hockey in Europe and then returned to become a law student at the University of Ottawa Law School, from where he graduated in 1993. After law school, he was a player agent, and he represented a number of hockey players in contract negotiations.

In 1999, he shifted over to management, and was hired by the Senators as their director of legal relations. Over the next five years, he impressed the Senators with his hockey insight, and was promoted to assistant general manager in 2004. As assistant G.M., he worked on contract negotiations, salary arbitration, player transactions, and personnel matters. In other words, he took a "legal job" with the Senators and morphed it into a player personnel job, and he's now the G.M. of the Boston Bruins. Granted, Chiarelli had a distinguished collegiate career in his sport and he played it professionally, but perhaps his story is an example of how one can use a law degree to become a player agent and also to get into a front office and from there develop an expertise in player personnel matters.

For Bruins fans' reaction to the hiring, check out HFBoards.

 
Do Colleges Need “Pregnant Athlete” Policies?

For anyone with an interest in college athletics, Amy Rainey’s “What Athletes Can Expect When They’re Expecting: Many colleges are ill prepared for pregnant athletes—and some players suffer as a result,” in this week’s Chronicle of Higher Education (May 26, 2006) is worth a read.

The story highlights the potential legal exposure for schools that don’t have pregnancy policies for athletes. One story is that of Tara Brady, a student at Sacred Heart University in Connecticut, who sued her former basketball coach for discrimination, claiming that she was told to “go home . . . because her pregnancy would be a ‘distraction’ to the team.” As Rainey’s article reports: “According to the lawsuit, Ms. Brady had requested a ‘medical redshirt,’ a status like that given to injured athletes, to allow her an additional year of eligibility. But she claimed that her coach never redshirted her, and that the university revoked her scholarship.” The University settled with Ms. Brady for an unspecified sum. This type of claim is likely the most common schools without pregnancy policies would face – but the article hints at what could be an even more disastrous result for a university (from a damages perspective): pregnant athletes who are unaware of the effect their status will have on their scholarships who as a result hide their pregnancies (and fail to seek prenatal care), or seek abortions.

Elizabeth Sorenson, Faculty Athletics Representative (FAR) at Wright State University in Dayton, has proposed the NCAA develop a pregnancy policy. Professor Sorenson hosted an on-line discussion on the issue yesterday, which can be found here. In a nutshell the WSU policy calls on athletes to notify their coaches of pregnancy status, to refrain from withdrawing from their sport, and establishes a support group to counsel a pregnant athlete and oversee continued participation (I’ve e-mailed Professor Sorenson for a copy of the policy and will update this post once I’ve had a chance to look at it). The NCAA has not acted on her proposal, according to the Chronicle.

Such a policy seems like a good short term legal strategy to avoid potential liabilities. In the long run, however, might adopting a “maternity-leave”-like policy for pregnant college athletes start to make it difficult to argue that the “economic realities” of college athletics are not those of an employer-employee relationship? As a result, might college athletes be able to demand the right to unionize, and / or get paid? Of course, that might be a good thing, as Greg argues here.

 
Indiana Basketball Embraces Recruiting Hurdles

The NCAA Committee on Infractions yesterday issued a ruling that: (1) bans new Indiana coach Kelvin Sampson from calling recruits and visiting them off-campus for one year, (2) requires Indiana to adopt the restrictions Oklahoma placed on Sampson, where he coached before Indiana hired him earlier this year, and (3) disciplined Oklahoma by adopting its self-imposed sanctions.

Sampson was identified as making 233 of 577 "impermissible" phone calls while at Oklahoma from 2000-04, in which the NCAA concluded those calls constituted a recruiting advantage. Of 17 recruits who received impermissible calls, five enrolled at Oklahoma and another signed a National Letter of Intent to attend the school. The infractions committee chair, Tom Yeager, noting that some of the violations were committed while Sampson was president of the National Association of Basketball Coaches (NABC) and presided over an Ethics Summit, had some harsh things to say about Sampson:
"The former head coach created and encouraged an atmosphere among his staff of deliberate non-compliance, rationalizing the violations as being a result of 'prioritizing' rules. The former head coach [who, it is reported, acknowledged the violations but did not take them seriously compared with material inducements to recruits] preferred to think of what he and his staff were doing as 'hard work' rather than cheating. At a time when the NABC identified impermissible phone contact as a serious issue and the organization was calling on its membership to be accountable, the former head coach and his staff were engaged in a pattern of willful and significant recruiting violations."
Last week on the Blog, I discussed a provision in Sampson's new contract that permits IU to fire him with no financial obligations if the NCAA "imposes more significant penalties or sanctions than the University of Oklahoma's self-imposed sanctions." Apparently, IU is not going to terminate Sampson under this clause, as athletics director Rick Greenspan publicly stated: "We felt the self-imposed penalties were significant, but we knew that there could be further sanctions and we accept them. . . . While these sanctions do present an immediate challenge, we are excited about the future with coach Sampson at the helm of the Indiana basketball program." Despite the "willful" violations committed at Oklahoma by its new basketball coach, Indiana President Adam Herbert and Greenspan went even further and stated that Sampson is a man of "highest integrity" who simply made an error in judgment.

Jeff Rabjohns of the Indianapolis Star summarized the penalties imposed on Sampson ("IU's recruiting faces hurdles"):

Things he can't do:
• Call recruits on the phone.
• Attend summer recruiting camps such as Nike's in Indianapolis or tournaments such as Reebok's in Las Vegas that typically feature hundreds of top prospects in one place.
• Attend a recruit's game.
• Make a home visit to a recruit.

Things he can do:
• Take phone calls from recruits.
• Initiate text messages, instant messages, e-mails or letters with recruits.
• Talk with players during on-campus recruiting visits.

In today's highly competitive recruiting environment, being visible and seen is extremely important. According to Rabjohn, "The biggest practical impact of the NCAA penalties announced Thursday against the Indiana University men's basketball coach is that Sampson won't be able to personally show recruits how interested the Hoosiers are." Electronic messaging is simply not a replacement for in-person appearances.

Is IU underestimating the impact of yesterday's ruling? But aside from the practical impact on Sampson's ability to effectively recruit, which Indiana is willing to accept, does it seem odd that IU would hire a coach knowing at the time that he willfully violated NCAA recruiting rules and knowing that NCAA sanctions would soon be imposed, and also tell the world that he's a man of "highest integrity"?

Thursday, May 25, 2006
 
Linking Casinos to Olympic Bids

Chicago attorney Tim Epstein, who in January blogged here on Chicago's Olympic bid, had a related letter to the editor published by Crain's Chicago Business this week. Crain's shortened it quite a bit, but here is the original:
Could Gaming Help Chicago become an "Olympic" Kind of Town?

Is 2016 Chicago’s best chance at getting the Olympics since 1904? The 1904 games were given to Chicago, then taken away and given to St. Louis to coincide with the World’s Fair. While the U.S. Olympic Committee has yet to make any decisions on whether an American city will even be nominated to host the 2016 Games, Jim Scherr, CEO of the U.S. Olympic Committee, stated in a press conference in Chicago that “[Chicago would] not only be an excellent host for an Olympic Games, but would have an opportunity to be a successful bidder if it chose to bid and if we chose to run.”

The biggest impediment to the Windy City’s bid: not having an appropriate venue for Opening and Closing Ceremonies (labeled as a “non-starter” by U.S. Olympic Committee Chairman, Peter Uberroth). Hosting the Olympics requires a venue that would seat at least 80,000 people (the recently renovated Soldier Field only holds 61,500). While the Mayor’s exploratory committee would seek out both financial and physical aid in hosting the Summer Games from other cities, states and universities, the “gem” of the ceremonies would most certainly be in Chicago.

The idea has been circulated of possibly bringing in a second NFL franchise to Chicago that would play in a venue constructed for said team’s home games as well as for use in the hosting of the 2016 Games. While the idea of Chicago supporting a second NFL team seems daunting, there is precedent (the Cardinals played in Chicago and the greater metropolitan area until 1960). However, with the Saints staying in New Orleans and Los Angeles next in line for a franchise, maybe City Hall should look to the Steel City for inspiration.

Mellon Arena, home to the Pittsburgh Penguins, is run down as is the surrounding neighborhood, which has great accessibility to downtown Pittsburgh. Mario Lemieux and the rest of the ownership group had threatened to leave the area, but recently announced partnering up with Isle of Capri casinos. If Isle of Capri, which owns fifteen casinos throughout the US, Europe, and the Bahamas, secures the state license to operate a Pittsburgh casino, it would build the casino in the lower Hill District, with a new facility for the Penguins in the same complex (Isle of Capri along with the Penguins is pledging $290 million for the arena). Along with this is a plan for redevelopment of the area. Of note, the Penguins CEO, Ken Sawyer, recently stated that the only way that the Penguins would certainly stay in the area is if “Isle of Capri wins [the license].”

Along with Isle of Capri, two other groups have entered into the bidding process for the Pittsburgh license, PITG Gaming LLC (headed by Don Barden, and supported by Smokey Robinson and Jerome Bettis) and Forest City Enterprises (Harrah’s). PITG has committed $7.5 million a year for 30 years under the alternative plan submitted by Pennsylvania Governor Ed Rendell. Forest City, supported by Franco Harris, is committed to the Governor’s plan only if the Penguins promise to stay in Pittsburgh.

Could the Pittsburgh proposals not be models for Chicago? It is no secret that Mayor Daley wants a casino in Chicago, so why not combine the ambitions for gaming with The Games? If the facility had a retractable dome, such a venture would not only provide Chicago with a venue necessary for host city consideration, but a site to host events like the Super Bowl, the Final Four, and a college bowl game, all consistent with the Olympic spirit for use after the games (a factor the International Olympic Committee looks to in choosing a host city), not to mention convention space. As to the presence of a casino being anathema to the Olympic spirit, London, which recently won its bid to the host the 2012 Olympic Games over New York City and Paris, has twenty-five casinos.

Timothy Liam Epstein is an attorney with O’Hagan, Smith & Amundsen in Chicago. He is a regular contributor to the national Sports Law Blog. He recently authored, “Splinters from the Bench: Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time,” published by the University of Virginia School of Law. He is currently working on an article regarding the effects of multipliers and other measures in high school sports.

Tim raises a good point about the presence of casinos in London, and how those casinos did not preclude London from obtaining the 2012 Olympic Games. As to his proposal for a retractable dome in Chicago, it is interesting and doubtlessly controversial. But as he notes, perhaps it could have important future uses, such as in trying to attract another NFL franchise to Chicago or hosting a super bowl.

 
How 'Bout Them Tigers!

What's going on with the Detroit Tigers this year? It's not very often that you see a team go from "worst to first". As of right now, they have the best record in all of baseball (32-14). They also currently rank 1st in team ERA, 2nd in team slugging percentage, and 7th in team batting avg.

I'm a Detroit native and, up until two and a half years ago when I moved to sunny Florida, I lived there my entire life. Living in Florida, I'm sort of out of the loop and unable to closely follow and watch the Tigers. I know we're only about 1/3 of the way through the season, but after a string of many consecutive losing seasons, Detroiters definitely have something to get excited about. So all of you Tigers fans, I'm curious to know WHY they have the best record right now and are among the league leaders in pitching and hitting.

Which of the following is/are contributing to the Tigers' success this year?
  • The players had a meeting in spring training and decided that they would prefer to play like the '97 Marlins instead of the '84 Tigers
  • The draft has finally produced some talent this year at the major league level
  • Releasing Carlos Pena
  • Signing Kenny Rogers
  • Kenny Rogers decided that it's better to strike out batters than camera men
  • It's that extra $13,520,866 in payroll this year
  • The batters are on steroids this year
  • The pitchers are on steroids this year
  • GM Dave Dombrowski is on steroids this year
  • Only Brandon Inge is on steroids this year (he has 11 home runs!)


 
Could the NBA Ban Timeouts?

At Slate, "Sports Nut" Josh Levin argues that the NBA should ban time outs. According to the Nut, timeouts are "despicable," "indefensible" and a "buzzkill." I'm not particularly concerned with the merits of this proposal (which, other than employing more coarse language, is not terribly original, see here and here) Instead, I'm interested in its legal feasibility. Particularly, would the NBA have to bargain with the players' association before reducing or eliminating timeouts? Are timeouts "wages, hours, and working conditions", and therefore a mandatory item of collective bargaining? These are questions Rick posed here about the dress code. (The distinction between mandatory, permissive, and illegal subjects of collective bargaining also matters in jurisdictions that follow the Mackey case regarding the scope of the non-statutory labor exemption from antitrust law, as Rick explains here).

The interplay between collective bargaining and “rules of the game” is a complicated one. Timeouts, of course, seem a bit like "hours." Of course, banning time outs might actually reduce the hours that an NBA player spends “in the building.” Still, something that decreases hours at work would seem to "concern" hours. Similarly, to the extent that eliminating timeouts changed the “conditions” under which NBA games were played (by making the end-game a more continuous, high-paced experience) such a move would seem to fall into the mandatory category. I imagine that many of the more hulking and less limber NBA players would be concerned that a timeoutless 4th quarter would involve a higher risk of injury, since play would necessarily become more chaotic and unpredictable.

The leading sports law casebooks pose some interesting hypotheticals about the mandatory vs. permissive distinction in connection with rules and conditions of play. For example, the Mitten/Davis/Smith/Berry book Sports Law and Regulation: Cases, Materials & Problems offers: the placement of the 3-point line in basketball; the height of the pitcher’s mound in baseball; the dimensions of a hockey rink or baseball field; and the status of the DH rule in baseball (page 576). The Weiler/Roberts book Sports and the Law: Text, Cases & Problems offers: the DH rule; institution (or elimination) of overtime to break ties in hockey or football; installation of artificial turn in football or baseball parks; hockey’s rule about wearing helmets during games; and the use of instant replay (page 327).

Wednesday, May 24, 2006
 
Jeb, Not Condi, as NFL Commish?

Last week, I reported on speculation that Secretary of State Condi Rice was closer to the NFL Commish's office. Now, it seems, no-longer "private conversations" have been afoot involving Florida's Governor Jeb Bush. Apparently, Steelers Owner Dan Rooney is conducting the search.

UPDATE: According to an AP wire story from yesterday, which the NFL put on its own web site, "The leading candidates for Tagliabue's job, which must be approved by 22 of the 32 teams, continue to be Roger Goodell, the NFL's chief operating officer; Atlanta general manager Rich McKay and Baltimore president Dick Cass. One outside name that has cropped up recently has been Michael Powell, former chairman of the Federal Communication Commission and the son of Colin Powell, the former secretary of state. Also on the list are league officials Jeff Pash, Eric Grubman and Joe Browne, as well as several club officials and an unknown number of potential candidates from outside the NFL." The NFL also appears to confirm the pursuit of Bush.

 
Double-A Team to Host Frivilous Lawsuit Night...Seriously

The Altoona Curve, a Double-A Pirates affiliate, will host a "Frivilous Lawsuit" night on July 2. The team's press release is here. Hat tips to the Journal's Law Blog and Overlawyered.

 
Marquette to Host Labor & Employment Scholarship Mini-Conference

Marquette's law school will host a Colloquium on Current Scholarship in Labor and Employment Law on Friday, October 27, 2006. The conference web site and call for paper presenters is here. Given the overlap between sports law and labor / employment law, hopefully some of our readers and contributors will submit papers and be represented in October. Conference co-organizer Scott Moss explains the genesis of the conference (and makes a dubious prediction about the Brewers' World Series prospects) here.

 
What's in a Number? Apparently Tax and Contract Issues

Twelve days ago, I discussed Reggie Bush's challenge to a long-standing NFL rule requiring running backs to wear a number in the 20-49 range. Yesterday, the NFL's competition committee -- not surprisingly -- rejected his request that he be permitted to wear No. 5. A release by The Associated Press (reprinted in USA Today) noted that, since 1973, the only major change to the NFL rule was made last year, when receivers were given permission to wear numbers in the teens because teams were running out of numbers in the 80s due in large part to an increase in receivers and tight ends on rosters.

Interestingly, as noted in the press release, a player will often change a number to accommodate another player, often selling the rights. For example, New York Giants punter Jeff Feagles traded No. 10 to Eli Manning in 2004 in exchange for a family vacation, and then also traded No. 17 to Plaxico Burress last year in exchange for an outdoor kitchen addition on Feagles' home. Clinton Portis bought No. 26 for $40,000 from safety Ifeanyi Ohalete when he joined the Redskins. Portis paid $20,000 up front but declined to pay the rest after Ohalete was cut by the Redskins and picked up by Arizona. Ohalete then sued Portis for the balance and they ended up settling the matter for $18,000.

This is what I love about sports law -- something that seems so innocent, like one player simply permitting another to wear a jersey number, amounts to some complex legal issues. For example, what are the tax consequences on the exchange? In order to determine the taxable gain on the sale, the seller's basis needs to be determined. What's the selling player's basis in his number? Is it a cost basis? - which, presumably would be zero in which case the entire benefit received would be taxable. Or could the selling player argue that this transaction is nothing more than a non-taxable gift from the purchasing player (i.e. the payment was made out of "detached and disinterested generosity")?

Also, there are some interesting contract and property issues involved here. Why does a player even have the legal right to sell a jersey number to another player in the first place? Does the club own the rights to the numbers, and have the continuing exclusive authority to grant and condition the use of the numbers by the players? Is this a sub-license arrangement in which maybe the selling player (the licensee) needs to first get permission from the club (the licensor)? Assuming a player even has a property right in his number that he can sell, why would Ohalete have any further rights to his number with the Redskins after he was cut by them?

Tuesday, May 23, 2006
 
Chief Justice of the Sports Metaphor

In Brigham City v. Stuart, released earlier this week, the Supreme Court held that police officers may enter a home without a warrant if they have an objective basis to believe an occupant is seriously injured or imminently threatened with such injury. Writing for the majority, Chief Justice Roberts explained, "The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.”

Apparently, we can expect many more sports metaphors from Chief Justice Roberts, the man who gave us "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

Hat tip to the Journal's Law Blog.

 
Does the NFL Have the Best IP Cops?

At the Freakonomics blog, Steven J. Dubner wonders at the absence of Washington Redskins memorabilia in a gift store into which he wandered in Washington, DC. Here's his story: "Today, I went to a huge souvenir store in D.C. . . . There was a great variety of very very cheap shirts and hats sporting the logos of the F.B.I., the C.I.A. . . . etc. But there didn’t seem to be a single item of Washington Redskins paraphernalia. I asked at the counter . . . did the clerk think that, perhaps, I was from the N.F.L.’s licensing division and was trying to find out if she had any unlicensed Redskins stuff? It didn’t seem to make sense that the store wouldn’t carry any Redskins paraphernalia—they had everything else you could imagine, including shirts for the Washington Nationals and the Georgetown Hoyas. . . . is it possible that stores like this (and/or their suppliers) are not afraid of selling knockoff U.S. Government merchandise or knockoff MLB merchandise but that they are afraid of selling knockoff NFL merchandise? Is it possible that the N.F.L. is more feared, even in Washington, than the U.S. Government?"

The Wonkette thinks the store may have just found the name "Redskins" offensive.

 
Study Indicates Losing Soccer Games Hurts Economies

A new economic study has demontrated that "losses in soccer matches have an economically and statistically significant negative effect on the losing country’s stock market." Here's the paper's abstract: "This paper investigates the stock market reaction to sudden changes in investor mood. Motivated by psychological evidence of a strong link between soccer outcomes and mood, we use international soccer results as our primary mood variable. We find a significant market decline after soccer losses. . . . This loss effect is stronger in small stocks and in more important games . . . . We also document a loss effect after international cricket, rugby, and basketball games."

Now that's what I call moneyball.

Hat tip to Conglomerate.

 
Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players

With the Major League Baseball amateur draft to be held in two weeks (June 6-7), Alan Schwarz of Baseball America has a very interesting interview with Texas Rangers first baseman Mark Teixeira. In the interview, Teixeira recalls when the Boston Red Sox drafted him in the 9th round of the 1998 MLB Draft, as well as communications between the Sox and Teixeira prior to the draft. Like many of the draft's best prospects, Teixeria, then 18, was represented by super-agent Scott Boras. After a very contentious negotiation with then-Red Sox GM Dan Duquette, Teixeria declined to sign, feeling low-balled by Duquette's offer of a $1.5 million signing bonus, and instead chose to attend Georgia Tech. Three years later, the Texas Rangers selected him in the 1st Round (5th overall) of the 2001 MLB Draft, signed him to a $10.5 million contract (including a $9.5 million bonus), and he has gone on to become a big league star.

In the interview, Teixeira suggests that the Red Sox sabotaged his draft status by (1) engaging in what he calls "illegal" pre-draft negotiations with his agent; (2) slandering him, albeit privately; and (3) drafting him relatively late (in the 9th round) in order to diminish his superstar prospect reputation. Here is the relevant portion of the interview (with my italics):

Alan Schwarz: The Red Sox offered you $1.5 million before the draft, which was pretty darned fair in 1998.

Mark Teixeira: They said take it or leave it. It was a decent bonus, but it wasn't what we were looking for, and we didn't want to cap our negotiation before the draft even happened. It's unfair and illegal to go to a kid and say, "We haven't drafted you yet, we may or may not draft you, but if you don't take 1.5 we're not going to draft you." What would you say? There's 29 other teams out there--why would I ever cap myself before the draft even happens? It doesn't make any sense. It's unfair to those kids. Say, "Draft me and I'll let you know."

I have a very cynical approach toward the draft. I was naive. It was my first realization to the business in baseball. The Red Sox told everybody that I wouldn't sign, and when it got to a late enough round, they said, "Let's take a flier on him." So they spoiled me for everyone else--the only one that would draft me was them.
First off, I'm not feeling much sympathy for Mr. Teixeira. Any player, of any age, who hires Scott Boras to represent him is clearly not "naive" about baseball "being a business."

Second, I don't buy that the pre-draft negotiations between Boras and the Sox were in any way "illegal" or inappropriate. It's not entirely clear what laws Teixeira thinks the Red Sox broke, but he might be suggesting that the Sox, by telling other teams that Teixeira wouldn't sign for $1.5 million, tortiously interfered with his prospective relationships with those teams. Or perhaps he believes that the Sox slandered him when talking to other teams, or even that it libeled him by drafting him so late. Even more quixotically, he might think that the Sox bargained in bad-faith by threatening to not draft him unless he acquiesced to a $1.5 signing bonus (oh the horror!) or even--bear with me--that the Sox extorted him (something to the effect of, "Mark, if you don't agree to $1.5 million, we'll make sure that other teams find out about that . . . and we'll do that because we are so evil!"). Alternatively, if Teixeira simply believes that the mere act of pre-draft negotiations by the Sox was illegal, then why was his agent engaged in those same negotiations on his behalf?

The reality is that pre-draft negotiations are common with marquee players. In theory, such negotiations violate MLB tampering rules, but those rules are not enforced for good reason: they enable players to better assess whether they should pack for freshman year or pack for life as a minor-leaguer, and they enable teams to better assess whether it is in their baseball and financial interests to draft a particular player. And to the extent Teixeria or any player is hurt by these pre-draft negotiations, they should blame their agent, not the team that didn't assent to their asking price.

Having said all that, if there is evidence that a team has willfully damaged a player's reputation, either by published words (libel) or spoken words (slander), then a player would have legal recourse. But I suspect that most players don't have that evidence, and are instead just embittered that big league teams didn't think as highly of them as they did of themselves.

Monday, May 22, 2006
 
The Irrelevance of Evolutionary Biology to Sports and Law

One of my favorite college classes was Science B-29, Human Behavioral Biology. This venerable franchise (affectionately nicknamed “Sex” by the undergraduate students), long one of the most popular courses at my college, dealt with primate evolution and explored evolutionary explanations for human behavior. Along with a roommate, I even went so far as to nominate one of the course’s favorite subjects, the Bonobo chimpanzee, as the football team’s mascot. Sadly, the “Angry Pilgrim” was chosen instead.

It was with some interest over the weekend, therefore, that I read blogger Brian Leiter’s new essay, Why Evolutionary Biology is (so far) Irrelevant to Law (available here). Leiter and co-author Michael Weisberg make a thoughtful and persuasive case against the use of human behavioral biology and evolutionary psychology in legal scholarship and legal policy-making. The authors commendably explain the occasional philosophical term of art (e.g., “causal etiology,” “ontological parsimony”), such that even a non-scholarly reader can gain something from the piece.

Here’s a snapshot of their argument: “[E]volutionary biology offers nothing to law—more precisely, it offers nothing to help with questions about legal regulation of behavior . . . . Only systematic misrepresentations or lack of understanding of the relevant biology, together with far reaching analytical and philosophical confusions, have led anyone to think otherwise.”

The idea that evolutionary biology could come to replace economics as the leading “law and ___” movement always struck me as odd, given how much evolutionary biology and selfish gene theory owe to economics. That is to say, I’m not sure evolutionary biology is really all that much of an “alternative” to the reigning interdisciplinary approach to studying and conceptualizing law. Leiter’s essay provides further reasons to doubt the likelihood that any “law and evolution” movement will have legs. This is not to say that genetic science is irrelevant to some pressing legal questions (for example, in putting to rest the notion that race is anything but a social construct, as my colleague Bill Richman argues here), just that evolutionary biology is not sufficiently well developed to offer conclusions about law that have any scientific rigor.

Comments about evolutionary biology occasionally surface in discussions of sports as well. Jimmy “The Greek” Snyder’s remarks about African-American athletes are perhaps the most infamous. More recently, Cubs manager Dusty Baker made his own oddball evolutionary observation about African-American and Latino players and their comparative tolerance for hot weather. For any athlete, coach or player thinking of making a comment speciously asserting an evolutionary explanation for some perceived difference among categories of athletes, Leiter’s essay is good reading. If the career-destroying effects of such comments aren’t enough to deter, Leiter’s essay helps show, on an intellectual level, how little evolutionary biology has to say about current human behavior or how it should be regulated.

 
Court Denies Class Certification in NCAA Walk-On Football Players Antitrust Case

On May 3, a federal district court in the Western District of Washington denied class certification in an antitrust case filed by walk-on NCAA football players challenging limits on the number of scholarships. The case is In re NCAA 1-A Walk-on Football Players Litigation, W.D. Wash., No. C0-1254C (May 3, 2006). The Westlaw cite is 2006 WL 1207915. The plaintiffs in this case had previously survived a motion to dismiss. See 398 F.Supp.2d 1144, available here.

The putative plaintiff class consisted of a subset of those walk-on players from Division I Schools for the 2000-2001 through 2003-2004 seasons (those walk-ons who participated in spring practice with the team, and thus were closest to making the “cut” for a scholarship). The plaintiffs challenged NCAA Bylaw 15.5.5, which caps the number of scholarships for each DI-A school at 85. The plaintiffs claimed violations of Sherman Act §1 and §2 (their complaint is here). The §1 claim alleged that the NCAA operated a classic cartel to exercise monopsony purchasing power and restrict competition in the market for football players, an input market for DI-A college football. The §2 claim asserted that the NCAA were engaged in a conspiracy to monopolize the “big time college football” market.

The court rejected plaintiffs’ motion for class certification, explaining, “The facts going to the violation are also identical for each class member. All of the factual and legal inquiries will be the same to establish the relevant market, illegality, characterization of Bylaw 15.5.5 as a horizontal restraint, injury to competition, and the propriety of an injunction. Where the required proof diverges significantly is at the antitrust injury and damages stages . . . .”

The court continued, “[O]nce the existence of an antitrust violation has been fully litigated, the predominance of common issues will fade quickly. . . . The individualized determinations that will be required to prove antitrust injury and damages provide an insurmountable barrier to class treatment.” In a nutshell, the court felt that only some of the plaintiffs would have been damaged, since not all of them would have received scholarship even if the cap on scholarships were lifted. This decision will no doubt be appealed.

 
Pitchers in California Can Intentionally Throw at a Batter's Head

Last month the California Supreme Court decided that all pitches intentionally thrown at a batter's head are "a fundamental and inherent risk of the sport of baseball" (Calif. Supreme Court: Ballplayer Can't Sue for Bean Ball). The plaintiff, Jose Avila, was a junior college baseball player who was struck in the head with a pitch thrown by a pitcher on the opposing team. The plaintiff alleged that the pitcher had intentionally thrown at his head to retaliate for a player on the pitcher's team being hit by a pitch in the previous inning. According to the complaint, his batting helmet cracked and he suffered "unspecified serious personal injuries."

The plaintiff sued the school district, alleging negligent supervision over its pitcher. Regarding this claim, the Court held that the plaintiff assumed the risk of injury. Justice Kathryn Mickle Werdegar wrote for a 6-1 court:
"Being hit by a pitch is an inherent risk of baseball. Pitchers intentionally throw at batters to disrupt a batter's timing or back him away from home plate, to retaliate after a teammate has been hit or to punish a batter for having hit a home run. Even if the Citrus College pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport."
While the plaintiff did not allege a battery claim, the dissent argued that the plaintiff should have been permitted to amend his complaint. However, Justice Werdegar said it wouldn't have mattered because anyone who plays a sport has consented to physical contact and understands the rules of the game:
"Thus, the boxer who steps into the ring consents to his opponent's jabs; the football player who steps onto the gridiron consents to his opponent's hard tackle; the hockey goalie who takes the ice consents to face his opponent's slap shots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him."
In terms of whether the beanball in baseball meets the age-old "part of the game" definition for determining tort liability, I think Justice Werdegar is half right. There are some situations when it is part of the game, for example, in order to "protect your teammates" (Justice Werdegar referred to it as retaliating after a teammate has been hit), or when a batter walks off a home run when his team is up by a dozen runs, or maybe when a batter "pops off" in the press about the opposing team or opposing pitcher. However, I think the justice is incorrect that beanballs are part of the game in order "to disrupt the batter's timing" or in order "to punish a batter for having hit a home run". And it is NEVER part of the game, under any circumstance, to intentionally throw at a batter's head (such as was alleged in this case). Throwing a brushback pitch is not the same as intentionally throwing at the head.
But maybe the case was correctly decided after all. At first glance, one has to seriously question whether it is the proper function of tort law to even police beanballs. Assuming that I am correct about the circumstances under which the beanball is and is not part of the game (and assuming the plaintiff can actually prove intent which is always very difficult), should courts be drawing such fine distinctions between permissible and impermissible beanballs? As a policy matter, should the California Supreme Court instead have held that it is acceptable for a pitcher to intentionally hit a batter below the neck, but only if it involves situation A, B or C?


Saturday, May 20, 2006
 
Was Barbaro Abused?

Sadly, Kentucky Derby winner Barbaro broke his leg in the opening of today's Preakness Stakes in Baltimore. My thoughts are with this brave champion. And I pose the following question: Was Barbaro abused? After all, he ran a very tough race just two weeks ago. A human athlete completing the equivalent race -- say, a marathon -- would be permitted to take time off. Nearly all of Barbaro's Kentucky Derby competitors stayed home today (only two showed up to race). Was this champion treated unfairly, just because he was a horse?

Cass Sunstein, one of America's leading legal scholars, has over the past few years joined a chorus of voices calling for greater protection for animal rights. In The Rights of Animals, 70 Chi. L. Rev. 387, he wrote, "[H]orses should not have the right to vote; but they should have a right to good lives for . . . horses." In Standing for Animals, 47 UCLA L. Rev. 1333, he questioned whether animals might or should have standing to sue to vindicate their interest in avoiding suffering. Should Barbaro have been able to sit out, even though he had a chance at the Triple Crown?

Friday, May 19, 2006
 
The Real Moonlight Graham: Byron Gettis

Norm Sanders of the Belleville (Illinois) News-Democrat has an interesting story on Byron Gettis, a 26-year old who will become a freshman at Southern Illinois University Carbondale this fall. (Sanders, "Cahokia Star Finally Gets His Chance," 4/27/2006). Back in 1998, when Gettis was 18-years old and graduating from high school, he signed with the Kansas City Royals organization as a free agent in lieu of accepting a scholarship to play football at the University of Minnesota. However, his contract with the Royals stipulated that the Royals would pay for his college education, if and when he later pursued it. Gettis went on to a successful minor league career, and even reached the big leagues with the Royals for 21 games and 39 at-bats in the 2004 season. He had 7 hits and one RBI, and got to play with Carlos Beltran and Mike Sweeney. But in 2005, he was back in the minors, and then decided to retire from baseball.

This fall, Gettis will take the Royals up on their contractual committment to pay for his college education, and he'll try to make his college football team as a walk-on. Gettis has no regrets. He says of his brief time in the big leagues:
"It was unbelievable. It was probably one of the best and greatest experiences of my life. When you reach your goal that you've dreamed of, it's unbelievable. It was just being part of that brotherhood, having your name on the roll in the big leagues."
Interestingly, and as baseball agent Joe Rosen has discussed and written about, big league teams often include a college education clause in contracts with players who elect to sign out-of-high-school. It's unclear what percentage of players actually exercise that clause, but it's a good reminder that a college education is not a "one-shot-deal" in American life. People can go back to school at any point, so when an extraordinary opportunity presents itself out-of-high-school (be it sports or otherwise), a person doesn't forfeit college by taking advantage of it. And considering that Byron Gettis got to play in the big leagues, even for a very brief and unnoticed time, I suspect he'll have some great stories to tell as a freshman this fall.

 
How Best To Build A (Sports) Lawyer?

There's an article in this month's edition of the ABA Journal written by G.M. Filisko, which entails a thought-provoking discussion about how best to prepare and train people to become lawyers ("How Best To Build A Lawyer?"). Filisko notes that, "[f]or years, ideas have been batted around to improve the way lawyers are educated, ranging from allowing apprenticeships to changing bar exam standards to wiping out law school altogether." A few states -- California, Maine, New York, Vermont, Virginia, Washington and Wyoming -- allow students to skip law school in favor of some form of apprenticeship or “reading the law,” which combines self-study and practice under the supervision of an experienced, bar-admitted attorney. While skipping law school altogether probably sounds attractive to many prospective law students, the reality is that it would be difficult to get a job as an attorney because most hiring partners reject such drastic alternatives to obtaining a formal law school education.

But there may be a happy medium somewhere in-between. For example, some of the hiring partners interviewed for the article support the idea of combining a formal law school education with a legal residency (analogous to the medical profession). Here are some of their comments:
  • “My general sense is that the first year to two years of law school is important because it really does teach people how to spot and analyze issues and how to construct arguments.” However, he added that he could see “losing the last year of law school and replacing it with practical work.”
  • A residency program could help law firms in hiring. "If you bring students in for an extended apprenticeship, you get a better look at them.”
  • A residency program could improve attorney retention. “It may result in less movement by people from one area of the law to another or from one firm to another.”
Internships are a great way to accomplish, on a more limited scale, many of the same goals and objectives of a formal legal residency program. While law schools across the country are establishing more concentrations with specialized curriculums in various fields of law, it is vital that students in these programs have the opportunity to not only apply what they are learning in the classroom, but to also begin making contacts within the particular industry while in law school. I think generally law schools could do better in this regard.

As a director of a sports law concentration, I make internship placement a priority because internships afford students a tremendous opportunity during law school (1) to gain practical experience in the sports industry, (2) to give sports industry employers a "look-see" which may lead to future employment for the student with that particular employer or with another employer, and (3) to help students determine early on which fields within the sports industry interest them most. Internships can also help to alleviate senioritis.

Thursday, May 18, 2006
 
Northwestern Suspends Female Soccer Team Over Hazing Pics

Northwestern University has suspended its female soccer team pending an investigation of hazing of freshman athletes. The scandal erupted after the web site badjocks.com posted graphic pictures of team members, in various states of drunkenness and undress, engaging in simulated sexual activity and other forms of forced humiliation. Team alumni have denied the posted photos represent a longstanding tradition. Northwestern, of course, prohibits hazing, as the Chicago Sun Times reports here.

The San Jose Mercury News draws the obvious parallel to the Duke lacrosse scandal: "Progress was supposed to mean that drunken, ignorant male athletes wouldn't demean or harass women, not that drunken, ignorant female athletes would have equal opportunity to demean and harass one another. But that's how progress happens. For every step forward, there is at least one step backward. Sometimes two or three."

The NCAA and its members schools need to get tough, fast, on student athletes posting albums and other derogatory and demeaning information on photo-sharing web sites (guest blogger Tim Epstein discussed potential issues with such a move here). Badjocks.com got these pictures off of an album posted by the players on the internet. While it may take an athlete only a second to upload a photo to the web, it can take a lifetime to live it down. Loyola University Chicago has banned its athletes from posting on facebook.com. Perhaps other schools, or the NCAA as a whole, needs to consider a similar prohibition.

 
The Power of Informal Property Rights Among Sidewalk Vendors

If you've ever been to Fenway Park in Boston, then you know there's nothing better than those Italian sausages sold by sidewalk vendors on Yawkey Way and Lansdowne Street. Granted, we may not know what's inside those sausages, but so long as we pretend that we've never read Upton Sinclair's The Jungle, then we really don't care about their ingredients and instead simply enjoy their taste. The same phenomenon undoubtedly take places around Yankee Stadium, Wrigley Field, and all of the other great ballparks.

But who gets to decide where those sidewalk vendors position their food stands? Is there a formal legal structure, such as zoning laws or a system of licenses, or is there an informal mechanism, such as who gets their first or is who is usually there? Or is there a formal structure that is ignored in lieu of an informal one?

Professor Gregg Kettles of Mississippi College School of Law addresses these types of questions in his paper Formal Versus Informal Allocation of Law in a Commons: The Case of the MacArthur Park Sidewalk Vendors. Gregg, who resided in Los Angeles before moving to Mississippi, conducted an empirical study of sidewalk vendors on Los Angeles' MacArthur Park, which features both illegal and legal/licensed vendors. He found that the "illegal" vendors were far more profitable and organized in their trade, which he explains as consistent with the rational allocation of property rights in a commons:
Each licensed vendor was one of more than thirty graduates of a special government-mandated vending training program, but only a halfdozen of them bothered to show up on the sidewalk on a typical day. Meanwhile, across the street, where vending is against the law, there was a buzz of activity, which continues today. The city enforces the law against illegal vending only sporadically. Soon after law enforcement leaves the scene, illegal vendors re-emerge like flowers after the spring thaw. Dozens of illegal vendors hawk their wares on busy sidewalks that have become a bazaar where anything that can be sold from a cardboard box, a blanket, or a suitcase is there for the asking. Why didn’t more vendors go legal? Why did the legal district fail? Despite efforts to stamp it out, why does illegal vending continue to flourish?

The answer lies in part in property rights. The success of any vendor depends on finding a good spot from which to vend, and choice spots are highly coveted and scarce. The legal vendors in MacArthur Park and the illegal vendors across the street both sell from land that is traditionally open to the public at large—a commons. But how that land is allocated is dramatically different. In MacArthur Park, a system of allocating space among the legal sidewalk vendors who operate there was formally adopted by the city. Across the street, a completely different system for allocating scarce sidewalk space was adopted by illegal vendors on an informal basis. It is the formality of one property system and the informality of the other that substantially explains the different outcomes in these two parts of a commons . . .

Self-interested strangers have coordinated their vending activities to maximize the value of the sidewalk. They have done this not just in the absence of government help, but in the face of government hostility. These illegal vendors developed wealth maximizing order not in the law’s shadow, but rather in its absence.
Particularly given today's debate over immigration policy and protection of our borders from "illegals," I find it interesting that spontaneous cooperation emerges among otherwise-divergent sidewalk vendors--I guess we should never understimate the power of shared opportunities to bring people together, a recurring theme no matter how long one has been in this country. This paper may be downloaded for free from SSRN.

Wednesday, May 17, 2006
 
Indiana University Gets Creative in Drafting Coach's Contract

Mark Alesia of the Indianapolis Star reported last week that the contract of newly-hired Indiana University basketball coach, Kelvin Sampson (former Oklahoma basketball coach), contains a provision that permits IU to fire him with no financial obligations if the NCAA "imposes more significant penalties or sanctions than the University of Oklahoma's self-imposed sanctions." Oklahoma's self-imposed sanctions included recruiting restrictions and freezing Sampson's salary at $1.01 million. The NCAA is expected to announce its ruling early next month regarding 550 impermissible phone calls made to Oklahoma recruits from 2000 to 2004. Alesia obtained a copy of Sampson's contract through a public records request.

The contract also contains a provision giving the school the right to fire Sampson without obligation if his assistant coaches or players commit serious or repeated violations of NCAA rules. Last February, Michael McCann discussed on the blog Jim O'Brien's case in which he successfully sued Ohio State for breach of contract because O'Brien's contract with Ohio State did not specify that an NCAA violation could trigger a termination of the contract, and absent that specific language, the judge reasoned that Ohio State could not terminate it. Michael ended his post by stating: "As to the significance of the employment contract's lack of specificity, you can expect...that we'll now be seeing more carefully-tailored deals between colleges and coaches."

Nice prediction Mike....

 
Condi Closer to Commish Job?

The New York Post asserts today that Secretarty of State Condi Rice is closer to the NFL Commissioner's job. I was well aware of Secretary Rice's desire for the job; frankly, I never expected the NFL would be interested in someone with no sports industry background and no collective bargaining / antitrust experience or expertise. But according to the article, the league is "panting" for Condoleeza.

Here's more from Cindy Adams:

Condoleezza Rice's future aspirations veer toward even more initials. . . . Next up, the NFL. You've heard she'd love someday to be commissioner of football, right? Well, someday is coming. . . . Paul Tagliabue, also a D.C. insider when he became commissioner of the National Football League, will have been commish almost 20 years by the time the White House changes tenants. . . . What I know is the league is panting for Condoleezza, the headhunters have passed word around that "we're all willing to wait until she's ready."

Of course, how seriously should one take the Post?

Hat tip to Wonkette, one of the funniest people in the world.

 
Hawai`i Supreme Court Says No "Fore" is No Breach

In an interesting case picked up by the Journal's Law Blog, the Hawai`i Supreme Court held that a golfer who hits another golfer with a ball is only liable if s/he acts recklessly or intentionally (the original AP story is here and the court's opinion is here). Mere negligence on the links is not actionable. This is of course consonant with the vast majority rule in American law -- that co-participants in sports (at whatever level) may not recover from each other for injuries caused by negligence or resulting from conduct that is "part of the game." See this post by Greg.

Here are the facts of the case: "Tom was about 175 yards away from the hole when he hit his approach shot to the fifth hole green. The ball, however, took flight in an unintended direction. The ball hit the left side of the fairway, bounced into the rough, bounced again on the dirt area, then bounced onto the cart path, sending the ball towards the golf cart in which Yoneda was seated. Yoneda was struck in the left eye as his golf cart emerged from behind the restroom building."

The puzzling thing is the court's analysis of the failure of a player to yell "fore" when hitting a golf ball headed towards another player. The plaintiff in the case was struck in the eye and defendant admitted that he had not called out any warning. The court evidently took judicial notice that "It appears to be common knowledge among golfers that golf etiquette requires that a player shout 'fore' as a warning when his or her shot may endanger another player." However, the defendant's "failure to yell 'fore' when he hit the errant shot cannot be said to have been intentional or reckless conduct that falls outside the range of the ordinary activities involved in golfing. See Dilger, 63 Cal. Rptr. 2d at 594 (holding that golf etiquette, i.e., yelling 'fore' to warn others of errant shots, 'does not necessarily rise to the level of a duty')."

Why isn't a failure to yell "fore" reckless? Why isn't it so far outside the boundaries of what one expects about golf so as to be actionable? In the Hawai`i case, the plaintiff emerged from behind the bathroom building and defendant realized "too late" to shout a warning that plaintiff was likely to be hit. To me, if I hit a ball that's headed towards a restroom building, there is a fairly high likelihood someone will be hit by that ball and seriously injured. Even though I may not know of a specific person likely to be injured, it would seem imperative to call out a generic warning. There are several skiing cases where skiers who went off jumps, unaware that other skiers were in the “landing path”, were nevertheless held to have acted recklessly. Why isn’t that law applicable here?

Tuesday, May 16, 2006
 
The Meritorious Rise of Michelle Wie in a Time of Age-Based Nonsense

David Fay, executive director of the US Golf Association, commenting in today's Boston Globe on the decision by the USGA's Women Committee's Chairwomen to extend a special exemption to a then 14-year old Michelle Wie to play in the 2004 US Women's Open:
"It wasn't even a tough call. To not exempt her, in my view, would be some sort of age discrimination."
Fay is then cited for the USGA's recent decision to grant Wie a special exemption at a US Open qualifier in Hawaii:
Fay was adamant that the special exemption was deserved and if there were any critics, they surely had to be silenced when Wie outplayed a field of men (and one other teenage girl) at Turtle Bay Resort & Golf Club in Hawaii. . .

Fay was referring to the fact that Wie -- who turned pro in October -- has not yet reached the minimum age of 18 for LPGA Tour membership, so her prize money is not official. To Fay, however, it's impressive -- $181,449 in two tournaments, which would have Wie 16th on the money list. The top 35 as of May 29 are eligible for exemptions and ''that's why it's such an easy decision," Fay said.
So because Wie is such an outstanding golfer, and because excluding her would seem illegal, the USGA and LPGA are willing to overlook their age eligibility policies. Funny how an exemption policy grounded on merit-based thinking makes so much intuitive sense, and yet the NBA would rather have an absolute, bright-line rule that prevents a player like Greg Oden--perhaps the best NBA prospect since Lebron James--from entering the league straight out of high school or earlier. As to the NFL, it also has a bright-line rule, unless, of course, it chooses to not apply it for whatever reason (see e.g., Larry Fitzgerald, who the NFL allowed to participate in the 2004 Draft, even though only two and a half years had passed from the date of his high school graduation and the date of the draft, and he was thus a half-year short of meeting the required three years for draft eligibility. His father, a well-known sports journalist, would later credit the “relationship” he and his attorney had “built over the years with commissioner Paul Tagliabue” as crucial in obtaining a waiver. See this law review article for more).

 
Is There a Disney Case Against Cablevision Over the Larry Brown Contract?

For the last several days, it’s been widely reported that the New York Knicks will buy out the remaining four years of coach Larry Brown’s contract for something like $40 million. See here, here, here, and here. In all, Brown will have earned $50 million for less than 10 months service. In this coverage, James Dolan is often referred to as the “owner” of the Knicks, but the Knicks are actually owned by Madison Square Garden, which is in turn owned by Cablevision, a publicly traded corporation. Dolan may run these various entities, but there are other shareholders to whom the various officers and directors owe fiduciary duties. I wonder whether these other shareholders might be able to sue the board of MSG / Cablevision for a fiduciary duty breach. The leading case on point is Disney.

In addition to sports law, I also teach and write about corporations. The corporate law community is currently waiting with baited breath for the Delaware Supreme Court’s decision in this case, which was argued in January. There’s good commentary on the case (and predictions about it) here, here and here. Here’s a quick summary of that litigation. The Disney saga began when Michael Eisner hired his good buddy Michael Ovitz, a Hollywood talent agent, to be his number #2 at the Disney corporation. Ovitz turned out to be woefully unqualified, and quickly began planning his exit. He departed the company after 14 months service and collected a shocking $140 million. Shareholders sued, claiming corporate “waste.” The initial complaint was dismissed with leave to amend because it failed to plead that Ovitz’s compensation bore no relation to the services rendered (the current Delaware standard for a waste claim in the executive compensation context). Shareholders did a bit more digging, and uncovered evidence that the Disney board(s) had abdicated responsibility for negotiating the terms of Ovitz’s contract and then deliberately ignored its obligations in relation to Ovitz’s departure from the company. The court found that this new complaint stated a cause of action on which relief could be granted under a fiduciary duty breach theory. The new complaint was less about waste than it was about severe procedural defects in the board’s decision-making (reminiscent of the famous corporate law case, Smith v. Van Gorkom). Under the new complaint’s theory, shareholders went to trial and lost; their appeal is what the Delaware Supreme Court is currently considering.

Under the still-good law Disney opinion recognizing severe procedural defects in executive compensation decisions as actionable under a fiduciary duty theory, Cablevision/MSG/Dolan need to tread carefully in solidifying the terms under which Brown will depart. The parallels between Ovitz and Brown should be fairly clear: Subpar performance and tens of millions of dollars in compensation for just a few months work. Of course, there are some differences. While Ovitz had no studio experience when he took the Disney job, Brown has a pretty solid record as a coach. While Ovitz made more money than Brown from the deal, coaches are generally paid a lot less than top executives at multi-national corporations. Dolan might take some solace that the Disney directors won at trial, but I don’t think I’d want to take that risk. Perhaps concern for Disney-type litigation explains the delay in resolution of the Brown matter?

Monday, May 15, 2006
 
Rethinking Sports Unionism (Part 2): A Public Sector Union / No Strike Alternative?

In my last post on this subject, I sketched some of the problems caused by player unions in a “mature” sports industry. Although at least one kind and thoughtful commenter found my argument “ridiculous,” I stand by the assertion that sports unions have gone astray. They concentrate too much on defending and protecting wrongdoers and not enough on the best interests of fans and their sports as a whole (in real sense, sacrificing players’ long run interests for the sake of the short run). In this post, I discuss a negative feature of the current model of sports unionism that, to be fair, can’t be blamed on unions alone: Strikes and Lockouts. (In fact, the owners, who have over the years engaged in shady bargaining tactics as well as outright collusion, have historically probably been more to blame). Regardless of who is to blame, however, the negative effects of a player strike or management initiated lock-out in the major sports (baseball, football, and to a lesser degree, basketball and hockey) are undeniable.

The worst thing that could possibly happen to America, other than a terrorist strike or an outbreak of Bird Flu, is a season-ending strike / lockout in football or baseball. While a football strike seems to have been averted (for at least the next six years), there is a fair chance that the widening Mitchell Steroids Probe could lead to labor strife in baseball by this winter. That would be a disaster for baseball, and for the country. A season-stopping strike or lock-out has far reaching economic and non-economic effects. Not only would businesses directly dependent on the league suffer (TV stations, memorabilia sellers, etc.), businesses that indirectly are affected (restaurants, bars, parking lots near stadiums) lose money too. And the psychological impact of a strike on communities across the country is severe. We look to sports as one of the few common passions in an increasingly divided society; the loss of even part of a season will leave us, for lack of better phraseology, collectively depressed.

Under the NLRA, sports unions have a right to strike, and the leagues have an equal right to lock out employees. But not all unions have such a right. It is illegal for federal employees to strike, as the Air Traffic Controllers learned in 1981. In many jurisdictions, other public sector unions like police and firefighter unions can’t strike either. In exchange for not having the right to deploy these tools of economic conflict, public sector unions and employers are afforded the right to “interest arbitration.” This is different than the “rights arbitration” currently available to sports unions/players. Under the current model, a covered employee or the union can seek to arbitrate a dispute about the meaning of the CBA (that is, what rights the CBA provides). Public sector unions, lacking the right to strike, may instead, at impasse, demand arbitration of their actual substantive disputes. The interest arbitrator sets the terms for the next CBA.

I think this model would both work in and be appropriate for the sports industry. A federal statute (amending the NLRA) would no doubt be necessary, and this brief post is not meant to outline all of the issues that would be involved in drafting and enforcing such a statute. While police, fire, or railway workers are barred from striking due to concerns about transportation and first-responder infrastructure, for players’ unions it would be a concern about the pecuniary and non-pecuniary externalities of athlete strikes that would justify a move towards the public-sector “interest arbitration” model.

Bradley S. Albert and Brian K. Albert proposed the public-sector model in their article on the non-statutory labor exemption in sports, which can be found at 2 Sports Lawyers Journal 185 (1995); their abstract can be found here. That proposal should be revisited, and I hope it does not take a baseball strike next year to make that clear.