Sports Law Blog
All things legal relating
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Saturday, September 30, 2006
 
Letter to Mr. Stern: Larry Brown's Award Should be All or Nothing

Dear Mr. Stern:

Yesterday, you arbitrated Larry Brown's dispute over $40 million owed on his contract following his firing by the New York Knicks (see Geoffrey Rapp's previous summary of the legal issues involved in the dispute). Keep in mind that you are serving as an arbitrator, and not as a mediator, of a legal dispute that involves a simple legal question: Did the Knicks terminate Brown for cause? -- however that term is defined in the contract. If the answer is yes, then Brown gets nothing. If the answer is no, then Brown gets $40 million.

A proper legal analysis here does not allow for an in-between award. IF you determine that Brown was terminated without cause, the Knicks will attempt to argue that they have been monetarily damaged as a result of Brown's criticism of players, roadside interviews and attempting to make unauthorized trades, and that the $40 million owed should be offset by the damages flowing therefrom. But the only way the Knicks could possibly be entitled to any damages as a result of these breaches would be if the Knicks asserted claims for these breaches BEFORE terminating Brown. Instead, the Knicks decided to terminate Brown, and, if they did not have the right to do so, they materially breached and are not entitled to any damages.

As precedent, you can rely on the recent Ohio Court of Claims decision involving an analogous situation in which Jim O'Brien was terminated for cause by Ohio State. The court determined that Ohio State did not have the right to terminate O'Brien for cause as defined in the contract as a result of certain NCAA rules violations committed by O'Brien. In determining the damages award, the court awarded O'Brien the full amount that O'Brien was entitled under the terms of the liquidated damages provision in the contract, without any offset whatsoever for damages incurred by Ohio State flowing from the rules violations.

The other option would be to just split the baby somewhere down the middle, which is what a "mediator" would do in attempting to resolve a dispute. Although this is not what you are supposed to do as an arbitrator, this would allow you to consider your own personal interests so that (1) you don't look like you are biased in favor of the team owners who appointed you (if you were to rule in favor of the Knicks that is), or (2) you don't irritate the owners, especially a large market team owner (if you were to rule in favor of Brown that is).

Friday, September 29, 2006
 
Should "Competitive Balance" Be Ejected From Sports Antitrust Jurisprudence?

Temple Law professor Salil Mehra and Pepper Hamilton associate Joel Zuercher have posted a copy of their forthcoming paper Striking Out 'Competitive Balance' in Sports, Antitrust and Intellectual Property, forthcoming in the BERKELEY TECHNOLOGY LAW JOURNAL. Here's an abstract of the paper, which can be downloaded free of charge from here:
Professional sports leagues enjoy a unique justification in defending their seemingly anticompetitive practices under the antitrust laws: They allegedly need to maintain competitive balance. According to the argument, sports leagues need to do anticompetitive things to enhance their competitive standing vis-a-vis other sports leagues or other forms of entertainment. The argument is on the leading side of a circuit split, with only the D.C. Circuit rejecting it. Additionally, sports leagues have been adept at getting this argument into public discourse and legislative consideration.

This Article argues that antitrust should reject the competitive balance argument on its face. The competitive balance argument makes the assumptions that there can only be one championship competition per sports league, that leagues can and will engineer balance in that unique competition, and that fan interest is directly related to that singular competition. This Article draws on comparative data and recent economic research to conclude that each of these assumptions is wrong and that judicial endorsement of the competitive balance argument may simply be an aesthetic preference without empirical support. Instead, a solution lies in reconceiving the league competition envisioned by the competitive balance argument. In particular, a sports league can be subject to several different “competing competitions” among its constituent teams; it could thus maintain fan interest even in the absence of competitive balance. This view draws support from the experience of the decade-old English Premier League and also helps to illuminate Major League Baseball's litigation attempting to expand its intellectual property rights to limit fantasy baseball league operators.

 
How much is exclusion from youth hockey worth?

One Canadian man thinks the exclusion of his three children from a Canadian youth league is worth $100,000 (ed. note: that's 100K in monopoly money...which works out to about 90,000 USD). Says the plaintiff: "My kids are pretty upset. Their friends are all playing hockey. They're getting teased at school because they can't play. They're 11, eight and six and they're having to put up with this."

The kids were excluded after the league deemed false the father's allegations that a coach physically abused his daughter. Hat tip to Frank Snyder's Contract Law Blog, which notes that the case would have been about football if the venue had been Texas.

 
Paul Haagen's Faculty Associates Plan for Duke University

Duke Law Professor Paul Haagen, who teaches sports law, is head of Duke University's Academic Council, and is a former college lacrosse player, has proposed that Duke University professors be individually assigned on a voluntary basis to Duke sports teams. (Jane Stancill, "Duke Sports Idea Roils Professors," News & Observer, 9/21/2006). The match-up would serve as a way of improving communication between the University's sports and academic programs. The professors involved would be called "faculty associates," and while they would not be expected to monitor or report on a team, they could attend practices, travel with the team, and get to know athletes and coaches. The faculty associates would be assigned by a faculty governing body--and not the coaches--and they would be periodically rotated so as to avoid the potential of becoming advocates for individual teams or coaches.

Professor Haagen's idea has been met with both enthusiastic support and scorn on the Duke campus. For instance, Duke women's lacrosse coach Kerstin Kimel believes that Haagen's idea would greatly improve dialogue between academic and athletic personnel:

"There isn't a real tremendous understanding from a faculty standpoint about what our athletes and coaches do day to day. There's been a continuous drumbeat to divide these two groups. There's just a lot of misperception."

Others, such as Duke political scientist Paula McClain, claim that "people are just aghast that it's even being considered." Apparently, Professor McClain--who is co-director of Duke's Center for the Study of Race, Ethnicity, and Gender in the Social Sciences--believes that in the aftermath of the Duke lacrosse scandal, the University needs to distance itself from its sports teams, rather than embrace them.

Personally, I think Professor Haagen's idea is a wonderful one. Stereotypes and misconceptions usually diminish whenever persons from different groups can experience other groups, especially groups that would otherwise be distrusted or feared. Indeed, this has been a core finding by prominent social psychologists, including Stanford University's Claude Steel and the late Muzafer Sherif. And in a very different context, we talked about this same idea in relation to Chad Ford's ESPN work on Playing for Peace: the concept of using basketball to integrate people who would otherwise distrust one another.

As Professor Haagen alludes, putting a "human face" on the unknown is often the best way to no longer fear it. It will be interesting to see whether his plan is given a chance to prove that.

Wednesday, September 27, 2006
 
Terrell Owens and Jumping to Conclusions

As you know, Dallas Cowboys wide receiver Terrell Owens may have attempted to commit suicide last night by overdosing on the painkillers that he was using for his hand injury. Thankfully, Owens is okay physically, as he checked out of the hospital earlier this morning. He will address the media later this afternoon. It should be noted that while an internal police report that was somehow leaked to the media found that Owens did try to committ suicide, both Michael Smith and Michael Irvin of ESPN report that Owens is adamantly denying that he attempted to commit suicide. Owens asserts that he suffered an adverse reaction to the medicine.

Without knowing more confirmed facts, it's impossible to know what happened or why whatever happened happened. We might never know. But interestingly, many media and fans have immediately accepted the storyline that Owens tried to commit suicide, and they have also put on their amateur psychologist and psychiatrist hats to offer pseudo-clinical explanations.

Some believe that Owens is simply a bad guy who does destructive things, and that this is just his latest ploy for publicity. This has been the reaction of many message boards and talk radio discussions.

Others view the apparent suicide as a sad chapter in the life of someone who has made a lot of bad decisions. For instance, C.W. Nevius of the San Francisco Chronicle blames Owens for "blowing" his career:
"There are plenty of kids from tiny towns and humble backgrounds who hit the big time and manage just fine. He had a miracle chance and he blew it."
Still others take a more sympathetic view and speculate that Owens' self-centeredness reflects that he has been masking other problems that are not his fault. For instance, MSNBC's Mike Celizic posits that Owens' problems can be explained by his childhood:
"Whatever Owens’ problems are, they go way back to his childhood, when he was raised by a strict grandmother who didn’t allow him to leave the house except to go to school and church."
But perhaps the best reaction is the least interesting one: we have no idea what happened and no one can honestly say that they saw "this"--whatever "this" really is-- coming. Interestingly, that is the view that trained psychologists seem to be endorsing. For instance, ESPN interviewed sports psychologist Dr. Joel Fish who finds that nothing in Owens' past indicated signs of potential suicide. Dr. Fish also cautions against jumping to conclusions because a small change in the facts could make what happened look much more like an inadvertent overdose than a suicide attempt.

I wonder what the reaction would be if a different player had experienced the exact same incident? We'll hopefully never know, but if you substitute Tom Brady or Donovan McNab for Terrell Owens, I have a feeling people would be a lot more patient in waiting for the facts to come out before drawing conclusions on what happened and why whatever happened happened. I also wonder if the "internal police report" concluding that Owens tried to commit suicide would have been leaked if the player had been someone else.

Tuesday, September 26, 2006
 
Revolving Doors in Sports: Conflicts of Interest When Players Go Front Office?

Congratulations to Steve Yzerman, recently retired from his role as a Detroit Redwing hockey player, on moving to a new job as “vice president” of the team. Thank goodness he'll be gainfully employed, since I’m sure his finances have taken a hit since his retirement at the end of last season.

In professional sports, some newly retired players take breaks to spend time with family and eventually return to positions with the same team or another franchise. Others move into broadcasting. Some dedicate their efforts to their outside businesses (so often restaurants) and other investments. Some become coaches at the college level. But what seems like a fairly large number move almost immediately into executive positions with the same franchises for which they played.

Such sudden moves may raise ethical issues and conflicts of interest, which is why many industries have formal regulations or informal customs to prevent it. Elected officials are often barred from lobbying the government for a period of time after leaving office. In the military, an enlisted soldier, sailor, airman or marine who receives an officer’s commission typically (by custom) is transferred to a different unit from the one in which he or she served as an enlisted person.

Is there reason to expect the sports industry to be free of conflicts when players come back through the revolving door? A couple of obvious concerns come to mind. Players no doubt develop friendships while on the team. Some of their locker-room mates may be loved, others loathed. It’s certainly possible to imagine that a player-turned executive may use their newfound power to reward friends or punish enemies – for instance, with more (or less) generous payouts come contract time. Such concerns might even surface near the end of a players’ career. While Yzerman’s new post, for example, was just announced, it’s safe to assume that at least some preliminary negotiations were under way before he decided to retire from the game. Might other players on the team treat a player soon to retire and expected to receive a front-office appointment with “kid gloves” during his final months as a player? Might coaches give the player extra playing time, or less onerous practice schedules, in an effort to curry favor with a likely future executive?

One might also worry that players acquire sensitive information about players’ and players’ unions. For instance, a player might learn about another player’s personal life, financial needs, health and well being. If that player retires and moves to the other side of the table, might we worry that he will offer such information to the franchise to earn other executives’ trust? A star player might be privy to discussions among union leaders about issues such as salary caps likely to surface at future collective bargaining sessions. Is there reason to worry that a player will pass such information to his franchise bosses upon taking an executive’s seat, such that team owners will gain an unfair advantage at the bargaining table? At a minimum, we might worry that retired players who immediately become executives are victims of sentiment when it comes to their former teammates and coaches. They might have a hard time making “hard decisions” to cut, fire, or punish their former pals. For franchises that are publicly owned, shareholders certainly want executives to be guided by concerns other than friendship.

To be sure, there are advantages to the revolving door in sports – a player has a huge advantage over a “man on the street” in terms of information about the inner workings of the franchise for which they played. I’m also not implying that any particular player has behaved unethically, and I have no reason to suspect that Yzerman will. But maybe sports should develop a formal or informal practice of having athletes take a bit of time off before moving into front office positions – just long enough that old grudges could heal and old friends can move on to other teams. Or, players could be encouraged to take executive positions with teams other than those for which they played.

 
New Sports Law Scholarship

New this week:
Emily Tumbrink Brackstone, Case note, Civil rights--Title IX--an individual may maintain a private right of action under Title IX when the federal funding recipient retaliates against the individual due to his complaints about sex discrimination, discussing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 2005, 73 TENNESSEE LAW REVIEW 115 (2005)

Andrew M. Jones, Comment, Hold the mayo: an analysis of the validity of the NBA’s stern no preps to pros rule and the application of the nonstatutory exemption, 26 LOYALA LOS ANGELES ENTERTAINMENT LAW REVIEW 475(2005-2006)

Monday, September 25, 2006
 
Why is the NFLPA after Carl Poston?

Two months ago, super agent Carl Poston's agent license was officially suspended for 2 years by the NFLPA for his alleged negligent conduct in the negotiations of LaVar Arrington's contract extension with the Redskins that took place back on December 26, 2003 via long-distance telephone and facsimile between Poston (who was at his office in Houston) and the Redskins personnel (who were in Washington). Earlier this year, the NFLPA issued a disciplinary complaint against Poston claiming that he was negligent by certifying a contract on behalf of Arrington that failed to include an agreed upon $6.5 million roster bonus. At the beginnning of this year, the NFLPA's disciplinary committee issued a complaint, held a hearing and imposed a two year suspension. Poston then appealed the NFLPA's determination to an arbitrator as permitted under the NFLPA agent regulations. But he also simultaneously filed a complaint in federal district court asserting that the NFLPA's disciplinary complaint was not based upon verified information; that he was denied the opportunity to be physically present at the NFLPA disciplinary hearing; that he is entitled to the appointment of a neutral arbitrator for his appeal (not one appointed and paid for by the NFLPA); and that the disciplinary complaint is time-barred under the NFLPA agent regulations.

But there's more to Poston's complaint against the union than alleged procedural violations. Poston claims that the Redskins lied to him by falsely indicating that the team had to have a completed deal by the end of the day on December 26, 2003 in order to obtain the desired salary cap relief, and that the Redskins promised Poston over the telephone on the 26th that the contract Arrington was signing in Washington that evening did in fact include the $6.5 million bonus. Immediately thereafter, the NFLPA filed a grievance against the Redskins on behalf of Arrington for breaching the agreement and not including the $6.5 million bonus in the contract as promised, and the union hired Jeffrey Kessler's law firm Dewey Ballantine to handle the grievance against the Redskins on Arrington's behalf. Arrington and the Redskins ultimately settled the grievance amicably and the settlement provided Arrington with a new contract. Kessler is now the attorney on behalf of the NFLPA with respect to the NFLPA's disciplinary proceedings against Poston, and, according to Poston, the allegations in the disciplinary complaint stem from information gathered by the NFLPA's lawyers while representing Arrington in the grievance against the Redskins. Poston asserts in his complaint that it's a conflict of interest for (1) Kessler to use such information without Arrington's consent and (2) Kessler to pursue a disciplinary complaint against Poston (which Arrington opposes) because it's against the interest of Kessler's client (Arrington) to do so.

Poston makes a good point that the arbitrator in disciplinary proceedings with agents is not truly "neutral" although the NFLPA agent regulations state it as such. A neutral arbitrator is one that is mutually agreed to by the parties or chosen through an impartial selection process. Poston obviously feels that it's a waste of his time to try to argue his version of the case in front of the arbitrator. If an arbitrator rules against him, no court could reverse the arbitrator's decision.

But in any event, why is the union after Poston? The NFLPA is charged with looking after the best interests of the players. Here, the only player's interest that is affected would be Arrington's, and he resolved his dispute with the Redskins and he has consistently opposed any disciplinary action against Poston. If Arrington's not upset with his agent, then why is the NFLPA? Arrington recently appeared in court on behalf of Poston on this matter, and the judge acknowledged Arrington's presence, saying: "I see him here today and I recognize that he's very loyal to Mr. Poston."

The union filed a grievance on behalf of Arrington against the Redskins for bad faith negotiations with Poston by taking advantage of the situation with Carl in Houston and by breaching a verbal promise to include the bonus in the contract that Arrington signed in Washington at the "final hour" without the presence of his agent. Interestingly, now in the disciplinary action against Poston, the union is taking an opposite position by essentially claiming that Poston was negligent in not assuming that the team he was negotiating with would be acting in bad faith. Is that negligent? Giving the union the benefit of the doubt here, even if Poston completely fabricated his version of the story, it seems highly suspect that he would just choose to not review the contract of one of his elite clients and overlook whether the contract contained a $6.5 million bonus. Carl is an accomplished attorney and agent, and he and his brother Kevin are notorious for being zealous advocates on behalf of their clients and have obtained some record-breaking contracts over the years. Indeed, when an agent's fee is tied to the value of the contract, you can bet that the first thing the agent will do is ensure that the amount of the player's compensation stated in the contract is accurate!

Having said all of this, I am outspoken about the necessity for players associations to take a more proactive role in their efforts to combat agent misconduct, but this one just doesn't seem to fit the mold.

Sunday, September 24, 2006
 
Let's Not Go Crazy: NFL Rules on Eliciting Crowd Noise

The New York Times' John Branch has an interesting story today on NFL efforts to overcome crowd noise ("For NFL, Crowd Noise Has Become a Headache," 9/24/2006). The NFL has been fielding more and more complaints from teams that crowd noise has led to too many off-side penalties. Basically, the louder the crowd, the less teammates are able hear each other before a play begins. It is especially a problem for quarterbacks and their offensive lines.

Although the NFL rule book specifies that a home team can be penalized if its crowd becomes too loud, that rule hasn't been enforced. And it hasn't been enforced because a lot of NFL fans like the crowd being "the 12th player" for the home team: very passionate fans can disrupt the visiting team and rattle its players, thus becoming almost defacto members of the home team. So the ability of fans to disrupt the visiting team sort of rewards the "talents" of the real rabid fans.

But new NFL commissioner Roger Goodell would like to address player complaints about these rabid fans. Wisely, he is not following the playbook of Boston University for regulating crowd behavior. Instead, Goodell suggests placing microphones in quarterbacks’ helmets and speakers in the helmets of other offensive players, so that play calls and snap counts can be heard despite the noise. Quarterbacks can already use microphones for communication with their head coach, but those communications are cut off with 15 seconds left on the play clock.

Whether or not microphones and speakers are used, it doesn't appear that Goodell will lighten up NFL rules on how teams can elicit reactions from fans. As detailed last Wednesday in the Seattle Times, NFL teams cannot use certain electronic messages or slogans to get the crowd going, including the following:
"Let's go crazy"
"Pump it up"
"Noise!"
"Let's hear it!"
"12th Man"
There are even NFL rules on when the chant "De-fense!" can be encouraged.

It's interesting to compare the crowd behavior policies of Boston University and the NFL. Boston University polices the crowd and doesn't let fans swear, while the NFL polices the teams and doesn't let them rile up the fans. The NFL is also considering new technologies that would allow players to overcome crowd noise. No pun intended, but it sounds like that might be the best idea.

Saturday, September 23, 2006
 
The Citgo Sign Behind Fenway Park and Fearing Hugo Chavez

In a speech before the United Nations General Assembly on Thursday, Venezuelan president Hugo Chavez called President Bush "el diablo" which means "The Devil." Although Chavez's speech drew loud applause and cheer in the Assembly, it has generated a great deal of disdain in the United States, as has his remark that Bush is "an alcoholic." Chavez's remarks have also lead to guilt-by-association of the Citgo Petroleum Corporation, which is the U.S. based refining arm of Venezuela's state-run oil company. Venezuela is the fourth largest foreign source of U.S. oil and petroleum.

One proposed sanction of Citgo might affect baseball fans. Local city councilor Jerry McDermott argues that the storied "Citgo Sign" behind Fenway Park should be replaced by the City of Boston with a very large American Flag. Here's McDermott:
"Given the hatred of the United States displayed by dictator Hugo Chavez, it would be more fitting to see an American flag when you drive through Kenmore Square. I think people would soon forget the Citgo sign."
I have a better idea: let's do nothing. Really, wouldn't a government seizure of the Citgo sign only support Chavez's argument that we are living in a totalitarian state masked as a democracy? McDermott may be right that "people would soon forget the Citgo sign," but I wonder what else they might soon forget.

Friday, September 22, 2006
 
Chief Illiniwek Lives to Offend Another Day

On Tuesday, an Illinois appellate court affirmed the dismissal of a civil rights lawsuit filed by the Illinois Native American Bar Association against the University of Illinois concerning the “Chief Illiniwek” mascot. The court’s opinion is available at Illinois Native American Bar Ass'n v. University of Illinois by Its Bd. of Trustees, 2006 WL 2684269 (Ill.App. 1 Dist.,2006). Plaintiffs argued that the mascot violated a 2003 Illinois Civil Rights Act, which provides
a unit of state, county, or local government in Illinois may not:

(1) exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person's race, color, or national origin; or

(2) utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin.
In defense, U of I pointed to a provision of the 1996 University of Illinois Act, which provides:
Consistent with a long-standing, proud tradition, the General Assembly hereby declares that Chief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign.
The court explained the dispute on appeal:
Plaintiffs contend the two statutes at issue are irreconcilably conflicting and ask this court to decide which statute controls. They say the Illinois Civil Rights Act relates to discrimination and civil rights, while the University of Illinois Act is silent on those subjects. Because the statutes are not governed by the same spirit or policy and do not relate to the same subject, plaintiffs contend the two provisions cannot be harmonized. Furthermore, when the legislature passed the Illinois Civil Rights Act in 2003, it is presumed to have been aware of . . . the University of Illinois Act, passed in 1996. Yet, the legislature did not include an exception in the Civil Rights Act allowing the University to "discriminate against Plaintiffs through the use of an 'Indian' mascot, Chief Illiniwek." As the later and more specific statute, the Civil Rights Act should control, plaintiffs say.
Judge Wolfson, writing the court’s opinion, found no conflict between the statutes:
There is no indication in the Civil Rights Act that the legislature intended to "overrule" or otherwise diminish its declaration in the University of Illinois Act that "Chief Illiniwek is, and may remain, the honored symbol of a great university, the University of Illinois at Urbana-Champaign." . . . Given the direct language and glowing exaltation of Chief Illiniwek in the 1996 statute, we believe that had the legislature intended to repeal the provision or supercede it, it would have done so expressly. . . . There is no "irreconcilable conflict" or contradiction between the statutes. Nor is there a need to harmonize the two provisions since the statutes are not related. The plaintiffs concede the two statutes "do not pertain to the same subject and legislative mission," and [the University of Illinois Act] "is silent on the subjects of discrimination and civil rights." In order for two statutes to be in irreconcilable conflict, they must relate to the same subject. . . . They do not in this case.
Judge Hoffman’s special concurrence opined that the plaintiffs’ had failed to state a cause of action under the 2003 Civil Rights law regardless of existence or absence of a conflict between the two statutes. The judge wrote:
Distilled to its finest, the plaintiffs' amended complaint asserts that the symbolism of the Chief's performances is discriminatory, and it is that symbolism which the plaintiffs assert creates a hostile environment. . . . [I]f the mere uttering of disparaging words or phrases about a class of persons which engenders offensive feelings is insufficient to establish a hostile environment . . . , I believe it follows that gestures or dress which a member of a class may find offensive are also insufficient.
Judge Hall dissented, writing that a reasonable person might be able to conclude plaintiffs had stated a valid civil rights claim.

Given the NCAA’s involvement and the university’s reported decision to abandon the mascot, the plaintiff’s request for injunctive relief may soon be moot. However, in that they have also asked for damages, expect an appeal to the state supreme court.

 
Game of Shadows' Authors to be Jailed: Rethinking the Reporter's Privilege

San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada are set to be jailed unless they agree to testify about who leaked them grand jury testimony regarding Barry Bonds and other players alleged to have used illegal steroids (update: also check out an excellent post by Jeffrey Standen on this topic on his new blog on sports law). Back in March, we discussed their popular book, Game of Shadows, which was heavily based on confidential sources, and how Bonds sued them for libel. But yesterday, U.S. District Judge Jeffrey White rejected the reporters' request for a monetary fine or house arrest, reasoning that prison time would best compel them to testify before the grand jury. Williams and Fainaru-wada won't have to report to jail until their appeal is heard by the U.S. Court of Appeals for the Ninth Circuit.

Judge White's decision is based on Branzburg v. Hayes, 408 U.S. 665 (1972), where Justice Byron White, writing for the Majority, held that "reporters, like other citizens," must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

In other words, Justice White--a former NFL running back and Rhodes Scholar--reasoned that reporters don't deserve to be treated with less scrutiny than an ordinary citizen. Moreover, White argued, citizens should have an obligation to reveal information that could protect fellow citizens from unfounded prosecutions, and that obligation outweighs any First Amendment privileges, even for reporters. Interestingly, Branzburg was also cited for the jailing of New York Times reporter Judith Miller when she refused to reveal to special prosecutor Patrick Fitzgerald the name of the source who told her about Valerie Plame.

The opposing view to Branzburg is, of course, that our democratic institutions are strengthened by confidential relationships between reporters and their sources. Without those relationships, we may have never learned about Watergate, Iran Contra, or the Lewinsky Scandal, among other instances of government corruption. While that line of reasoning may not seem as powerful in the context of sports corruption, it nevertheless proves relevant.

Wednesday, September 20, 2006
 
Redskins' Latest Woe: Closed Captioning Lawsuit Filed

The WSJ Law Blog unearths this tidbit from the Washington Post:
The National Association of the Deaf has filed a lawsuit against the Washington Redskins to get team officials to offer closed-captioning for the deaf and hearing-impaired at FedEx Field.

The class-action suit, filed in U.S. District Court in Greenbelt, says the team is in violation of the Americans With Disabilities Act for failing to provide captioning during games.

* * *

The complaint was filed Aug. 31 on behalf of three fans from Maryland who regularly attend home games. It asks the court to order the Redskins and FedEx Field officials to provide and display captioning on scoreboards and video monitors for all announcements, plays and penalties called during the game.

"I am a lifelong die-hard Redskins fan and I love watching the Redskins play at FedEx Field," Shane Feldman of Silver Spring said in a statement. "But I miss out on the total game experience because I cannot hear the information announced on the public address system. Providing captioning is not rocket science; it is simple, and it is the right thing to do."
A Redskins spokesman says that the team is exploring closed captioning technolgoies "even though NFL teams are not required by law to offer closed-captioning in the stadium." I'm not so sure that the NFL is giving its teams good advice about the ADA on that point. What is the basis for its claim that Title III of the ADA wouldn't require closed captioning? There has been extensive litigation and commentary on whether the ADA mandates particular "lines of sight" for wheelchair bound fans at sports arenas. See, e.g., Adam A. Milani, "Oh Say, Can I See--And Who Do I Sue If I Can't?": Wheelchair Users, Sightlines over Standing Spectators, and Architect Liability Under the Americans with Disabilities Act, 52 FLORIDA LAW REVIEW 523 (2000). None of this law, that I'm aware of at least, would immunize the NFL from a Title III (public accomodations) suit under the ADA. "Reasonable modifications" must be made if they would not amount of a "fundamental alternation" of the services provided, and a stadiums are explicitly covered under the definition of "public accomodation." After all, the ADA regulations provide:
A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
Thoughts?

The case was filed by Joseph B. Espo, an attorney with Brown, Goldstein & Levy, LLP in Baltimore, Maryland, according to the NAD's August 31 press release. There is some discussion of the technical issues involved in closed captioning in the comments section on the Deaf DC Blog here.

 
Do Pro Athletes’ Spouses Waive Privacy Rights?

It may seem obvious that professional athletes have diminished expectations of privacy when compared to a typical person. See O'Brien v. Pabst Sales Co., 124 F.2d 167, 169-170 (5th Cir. 1941), cert. denied, 315 U.S. 823 (1942) (professional athlete waived privacy right by previously seeking publicity); see also Laura Lee Stapleton & Matt McMurphy, The Professional Athlete’s Right of Publicity, 10 MARQUETTE SPORTS LAW JOURNAL 23 (1999). Although courts (and commentators) have not always been clear about the difference between a right to privacy and publicity, it’s long been clear, as one student author noted, that
professional athletes, and other public performers, because of the “public” nature of their occupations, are typically considered to have “waived” their right to privacy; they are also probably more psychologically tolerant of having their daily lives depicted in the press.
D. Scott Gurney, Note, Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs, 61 INDIANA LAW JOURNAL 697 (1985/1986).
Can the same be said for the family members (and, in particular, the spouses) of professional athletes? From the Globe and Mail:
Tiger Woods was outraged Wednesday at an Irish magazine and a tabloid that linked photos of his wife to various pornography sites, and his agent was studying the merits of a lawsuit.

“My wife, yes, she has been a model prior, and she did do some bikini photos,” Woods said. “But to link her to porn Web sites and such is unacceptable, and I do not accept that at all. Neither does our team.”

The Dubliner magazine wrote in its September issue about Elin Nordegren, his Swedish wife of nearly two years.

“Most American golfers are married to women who cannot keep their clothes on in public,” the magazine wrote. “Is it too much to ask that they leave them at home for the Ryder Cup? Consider the evidence. Tiger Woods’ wife can be found in a variety of sweaty poses on porn sites.”
The Dubliner’s efforts seem obviously tortious. Even celebrities, as Jennifer Aniston has recently demonstrated, can assert privacy rights with respect to topless photos under some circumstances. And a photo of the wrong person would seem to offend even the diminished expectation of privacy of a celebrity athlete.

There aren’t a lot of guideposts out there regarding the privacy rights of athletes’ spouses. Do spouses surrender their privacy rights to the same extent as the athletes themselves? Should the law should be more forceful in defending the privacy interests of athletes’ spouses?

Tuesday, September 19, 2006
 
Devern Hansack: 24-Year-Old Prospect or 28-Year-Old Journeyman?

Devern Hansack is a minor league pitcher for the Boston Red Sox. He was the team's best Double A pitcher this year while pitching for the Portland Sea Dogs. He finished up especially strong, giving up only 5 runs, walking 7, and striking out 28 in his last 30 innings pitched. To cap off his run, he won both games that he started in the Sea Dogs' Eastern League Championship series against the Akron Aeros.

And while on the field celebrating his team's championship, Hansack learned that the Red Sox were calling him up to The Show. The native of Pearl Lagoon, Nicaragua will make his big league debut later this week, when he joins the team's starting rotation.

So far, there's not all that much interesting about Hansack's story, although it must be neat to learn that you've been called up to the big leagues while you are celebrating a minor league championship. But notice that I haven't given Hansack's age. It's because he's either 24, 26, or 28. You take your pick.

MLB.com claims that he is 28. Hansack himself and the Portland Press Herald claim that he is 26. The Baseball Cube claims that he is 24.

Why the confusion? The Houston Astros' originally signed him in 1999, at which time he was born in 1982. For whatever reason, there is no record of him pitching organized ball from 1999 to 2001. He did, however, pitch in Single A from 2002 to 2003, but was mediocre and the Astros released him. There is also speculation that the Astros released him because they somehow learned that Hansack was older than he had originally asserted, and they became upset about it.

After Hansack was released in 2003, he went back to Nicaragua and became a member of the Nicaraguan National Team. A Red Sox scout noticed him pitching in a winter league and signed him to a minor league contract in December of 2005. He seemed to be born in 1978 when that transaction took place.

In the short-term, Hansack's age doesn't really matter. The Red Sox need pitching, regardless of its age. And whether he's 24, 26, or 28, Hansack could pitch for a number of years to come. But in the long-term, and assuming that Hansack becomes a decent big league pitcher, a four or even two year age difference could dramatically affect his earning capacity, particularly given the earliest age at which he could become a free agent. It could also influence whether the Red Sox want to keep him on their 40-man roster or leave him exposed in the Rule 5 Draft.

Hansack's situation also brings to mind the difficulties of verifying birth dates for some foreign players. Of course, it is not a problem unique to foreign players. Some of you may remember Rich Rowland, a backup catcher for the Tigers and Red Sox during the 90s, who was two years older than he claimed to be, as unbeknownst to most, he had been a lumberjack for a couple of years between high school and college (the Boston Globe's Nick Cafardo uncovered the lie, which Rowland made worse by denying). Considering the importance of age for ball players, and how much money teams spend on player development, it seems surprising that players' ages can still be a subject of debate in 2006.

Update 10/2/2006: Only adding to his mysteriousness, Hansack threw a no-hitter for the Red Sox yesterday in the team's final game of the season, but no one seems to have noticed. Granted, it was a 5-inning, rain-shortened no-hitter and is thus not official, and granted, the Red Sox playoff hopes ended weeks ago, but still . . . this young man (or sorta young man) pitched a complete game no-hitter as a rookie--you would think that it would generate more than mere background noise in today's Boston Globe and Boston Herald (e.g., it appears in the 15th paragraph of the Globe's game story!!).

Monday, September 18, 2006
 
Buckeyes Appeal O'Brien Contract Case Decision

The Ohio State University has appealed former basketball coach Jim O'Brien's $2.4 million courtroom victory, which Rick noted here. Mike had an earlier post giving a nice background of the case. No indication of the issues raised on appeal yet; I'm working on locating a copy of the brief.

 
NCAA, Division II, and Financial Aid

A friend of mine is working on a project and would be interested in any thoughts or suggestions on this question:
Can a Division II college exempt student athletes from its general financial aid program? That is, if a student athlete is awarded an athletic scholarship, can the college then take them out of the general pool for need-based financial aid? Result would likely be that the athletes receive their athletic scholarship but not the entire academic amount, even though under a need-based analysis, they would potentially qualify for funding of the entire academic amount. Any potential discrimination issues with this? Any potential Title IX issues with this? Any NCAA regulations/rules that deal with this?
I don't think the NCAA would be concerned with this exemption, but sometimes the NCAA takes positions that seem counter-intuitive. Any thoughts?

 
WSJ Profiles NHL Deputy General Counsel

On Friday, the Wall Street Journal profiled (subscription required) NHL Deputy General Counsel Julie Spar Grand. As WSJ law blogger Peter Lattman attests, Ms. Grand seems quite satisfied with her sports law position:
Julie Spar Grand is a deputy GC at the National Hockey League. The 36-year-old Penn law grad loves her job. So much so, that in responding to the question “worst part about your job,” she replied, “Nothing comes to mind.” She’s says she’s spending much of her time these days implementing a league-wide electronic database of players’ medical records. . . .

Grand worked at Skadden, Arps, Slate, Meagher & Flom, where she worked in the firm’s prominent sports law practice. A former Skadden colleague who had already skated over to the NHL brought her onto the team. (Gary Bettman, the league’s commish, is a former partner at New York’s Proskauer Rose, as is the NBA’s Stern.)

 
New Developments in Russia's Battle with the NHL

A month ago, I posted a story on Russian hockey phenom Evgeni Malkin, who bolted from his Russian professional hockey league team, the Metallurg Magnitogorsk. At that time, it was widely-believed that Malkin, who was already under contract for this season with the Metallurg, would quickly sign a multi-million dollar contract with the Pittsburgh Penguins, who drafted Malkin with the No. 2 overall pick in the 2004 draft. Well, since my post last month, Malkin signed a contract with the Penguins worth up to $3.8 million. And last Saturday, Jason Cato and Karen Price of the Pittsburgh Tribune-Review reported that a Russian arbitration tribunal issued a court order on Friday prohibiting Malkin "from performing for any other hockey club in the Russian Federation or in any other country." ("Arbitration committee rules against Malkin")

Malkin's agent, J.P. Barry of CAA Sports, says he's not surprised by the decision and that they will review the tribunal's ruling with their lawyers before making a decision about whether to appeal:

"It's a tribunal of the Russian Hockey Federation. Obviously, there's still no transfer agreement (between the NHL and Russia), and they're not going to agree with what's taken place to date. ... We'll have to see what their approach will be on this side of the ocean."
I don't think it's any secret what Russia's "approach will be on this side of the ocean." Mettalurg will first probably try to enforce the tribunal's order here in the United States pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In January, the Moscow Dynamo tried to enforce a Russian arbitration award against Alexander Ovechkin of the Washington Nationals. The United States District Court for the District of Columbia held in favor of Ovechkin because the Russian team was trying to enforce an agreement to arbitrate based upon merely an "exchange of letters" that transpired subsequent to the expiration of Ovechkin's player contract with the Dynamo. Dynamo v. Ovechkin, 412 F.Supp.2d 24. That precedent will not help Malkin because Mettalurg has a signed player contract with Malkin.

According to Cato and Price, the NHL has told its clubs that they are permitted to sign Russian players who give at least two weeks' notice to their Russian teams, relying upon general Russian labor laws. But Alexander Berkovich, a U.S. lawyer retained by Mettalurg, says that contracts of professional athletes in Russia are governed by Russian Federal Sports Law No. 80-FZ, specifically Section 26, which states that athletes may only transfer to another team, either in Russia or abroad, "after the expiration of the term of the Sports Activities Contract and fulfillment of all obligations stipulated in such contract." This would seem like the right result, because as I noted in my post last month, if the law were otherwise, it would make all multi-year terms in Russian professional sports contracts superfluous.

The fact that there is no transfer agreement in place probably hurts Malkin's and the Penguins' position more than it helps them because it essentially means that the Russian Hockey Federation has not consented to the NHL signing its players who are under existing contract with Russian teams. If an NHL team signs a player to a contract with a term that overlaps with the term of a Russian contract, there is plenty of precedent that such conduct constitutes tortious interference with contractual relations, for example when the WFL was competing for players with the NFL and the ABA was competing for players with the NBA within the United States in the late 60's and early 70's. Should the NHL be treated differently under the law because the other league is located in another country?

Mettalurg is probably not the only Russian team willing to fight this one out. The Russian tribunal ruled on Sept. 9 that Andrei Taratukhin, a Calgary prospect, and Alexei Mikhonov, an Edmonton prospect, violated their contracts with the Lokomotiv Yaroslavl as well when they gave notice and left the team following Malkin's departure from Mettalurg. I predict settlement and the entering of a transfer agreement in the very near future.

Sunday, September 17, 2006
 
Jerrell Powe Drops Lawsuit Against Ole Miss: Where Will He Now Play Football?

A couple of weeks ago, I discussed football phenom Jerrell Powe's victory in court against the University of Mississippi regarding his eligibility to play there. Sensitive to the recent University High School scandal and to related and myriad revelations of high school diploma mills, the NCAA had denied Powe's eligibility due to concerns about the legitimacy of his high school course work. Powe then secured a temporary restraining order against Ole Miss to enroll him.

But Powe won't be attending Ole Miss this fall, as two major developments occurred in the last 48 hours: 1) the NCAA unsurprisingly denied Powe's appeal for reconsideration of his course work; and, more surprisingly, 2) Powe has dropped his lawsuit against Ole Miss, stating: Although my attorneys are convinced I have met NCAA requirements, and that we would win the lawsuit, I do not want to enter and attend Ole Miss under a cloud of controversy."

After Powe's judicial victory, some had expressed concerns that college admissions' officers would lose autonomy in their selection of students. Others believed that Powe would be unable to do college-level work, thus putting Ole Miss faculty members in potentially awkward positions to pass him. On the other hand, that concern hasn't stopped countless top schools from admitting athletes who were unprepared to be students there, so why pick on Powe now? I suspect the NCAA is feeling the heat from New York Times' exposés on diploma mills, as well as from on-going questions about the NCAA's "educational mission," and Powe might simply be in the wrong place at the wrong time.

So what will the nation's #1 defensive tackle prospect now do? Powe clearly needs to play somewhere, otherwise his skills might atrophy and given his considerable size (6'3, 360 pounds), undesired weight gain could be another concern.

The 19-year-old Powe won't be eligible for the NFL Draft until 2008--at least short of a successful challenge against the NFL's age eligibility rule. Yes, we know that a plaintiff would not win on such a claim in the Second Circuit, but we do not know how another Circuit would rule on it. It should be noted that the NFL's age eligibility rule is now an express part of the league's CBA with the NFLPA, although a rule that precludes non-employees from applying for employment could be deemed to not concern a mandatory subject of collective bargaining, and this rule clearly does not primarily concern the rights of any NFL players or draftees; rather, it primarily concerns those individuals who, because of it, cannot become NFL players or draftees (see the Case Western Reserve Law Review article that sports agent Joe Rosen and I are publishing, or this blog's recent post on O.J. Mayo and Bill Walker that has some great comments, especially by Rick Karcher and PK). So the issue is not entirely closed, as some would hope.

A less controversial option for Powe would be to take high school level classes this fall and improve his academic standing so that, with NCAA approval, Ole Miss could admit him for the spring 2007 semester. He wouldn't be eligible to play football until the 2007-08 season, but he could work out with the team in that spring semester. He could also try a similar strategy to gain acceptance into rival schools, like Auburn or Alabama. Powe could accomplish the same immediate academic goals at a junior college, where he could also play football, albeit against inferior competition.

Another possibility for Powe would be to play in the Canadian Football League, which does not have the NFL's age eligibility rule. He wouldn't have to sue the NFL or wait for someone else to sue the NFL, and he wouldn't have to take any more classes, although he would have to move to Canada, a lovely country, but a far away place from Powe's hometown of Waynesboro, Mississippi. We shall see.

Friday, September 15, 2006
 
New Sports Law Scholarship

New this week:
Jonathan Bell, Student article, Ticket scalping: same old problem with a brand new twist, 18 LOYOLA CONSUMER LAW REVIEW 435 (2006)

Jessica K. Foschi, Note, A constant battle: the evolving challenges in the international fight against doping in sport, 16 DUKE JOURNAL COMPARATIVE & INTERNATIONAL LAW 457 (2006)

 
Do We Take Youth Sports Too Seriously?

In the spirit of Keith Olberman's nightly "Worst Person in the World" award, I bring you Mark R. Downs, Jr.:
UNIONTOWN, Pa. -- A baseball coach accused of offering an 8-year-old money to bean an autistic teammate so he couldn't play was convicted Thursday of two lesser charges against him, and evaded more serious charges.

A jury convicted 29-year-old Mark R. Downs Jr. of corruption of minors and criminal solicitation to commit simple assault, Fayette County authorities said.

Authorities said Downs offered to pay one of his T-ball players, Keith Reese, $25 to hit Harry Bowers, a 9-year-old autistic teammate with a ball while warming up before a June 2005 playoff game.

Earlier in the trial, Reese testified about Downs' offer, saying he purposely threw a ball that hit Bowers in the groin, then threw another ball that hit him in the ear on Downs' instructions. Bowers also testified about being hit by the balls Reese threw during pregame warmups.

Witnesses previously testified that Downs wanted to bench Bowers so that he could win a youth baseball playoff game.
Aside from bringing to mind Geoff's great post last week on little league ethics, this story reminds me of Shawn Phillips, the Pennsylvania policeman who in 1999 gave a 10-year-old pitcher $2 to hit a 10-year-old batter with a fastball in a little league game. Phillips made the payment behind a local school's bike tracks, and then watched his hit man (or I guess I should say "hit boy") drill the other boy in the knee. Phillips would later be convicted of corruption of a minor and solicitation to commit simple assault and he would serve time behind bars.

Now, I haven't played T-ball or little league in almost 20 years, and I haven't coached them, but have they become overly competitive or too intense, or are these stories more like isolated incidents?

And what, if anything, might the current "Youth Baseball Culture" say about our country in general?

Wednesday, September 13, 2006
 
Islanders Sign Goalie Through the Year 2022!

Kevin Allen of USA Today reports that the New York Islanders just signed goaltender Rick DiPietro to a 15-year, $67.5 million deal ("Islanders sign DiPietro to record 15-year deal"). Allen notes that the deal is believed to be the longest term player contract in NHL history, although Wayne Gretzky had a 21-year deal that included some personal service stipulation. There's no service stipulation in DiPietro's deal.

DiPietro's contract runs through the year 2022, and DiPietro will be 40 years old at that time! Allen notes that a 4 or 5 year deal is considered a long term deal in the NHL, and the longest deal signed in the league so far this summer was Patrik Elias's 7-year, $42 million deal with the New Jersey Devils. The GM of the Atlanta Thrashers, Don Waddell, is quite surprised: "It's highly unlikely that you will see teams go beyond that. This is a once-in-a-lifetime contract. Ownership must feel very strongly that he's their guy for the next 15 years."

But when agents are in awe over this contract, I really begin questioning the logic:
"I would think it's an aberration. I've been a little bit surprised by the length of contracts in general, but this certainly raises the bar. It's mind boggling that anyone would sign a 15-year deal, but hallelujah. My sense of the marketplace was that there was going to be a lot more musical chairs. There would be core players, but everyone else would rotate. Do you really want one player to be your key guy for that length of time? Obviously the Islanders do."
I hate making generalizations, and I typically don't like to debate business decisions made by teams, but I question why any team in any sport (that has guaranteed contracts) would lock up any player to a long term contract. First, there are just too many risks involved, and the amount of the investment is just too great in proportion to the risks. Secondly, on long-term deals the team usually ends up paying the player close to the same amount that it would pay him under a short-term deal anyways, but takes on much greater risk. In any other industry, price is typically tied to the amount of risk. Finally, long term contracts in hockey are even riskier than in baseball because, if the team buys out the remainder of the contract prior to the end of the term, the team takes a hit against their salary cap in the amount of the buyout.

Interestingly, new Islanders GM Garth Snow was the backup goalie behind DiPietro last season, and they are close friends. DiPietro told Allen at the interview: "I was probably more excited than anyone when he became general manager." Yeah, I can see why....

Tuesday, September 12, 2006
 
Them Aren't Fighting Words: Boston University's Need for "Wholesome Cheers"

Boston University has a new policy for those attending their sporting events: if you swear or make a racist or sexist comment, and someone else hears it and complains about it, you will be tossed from the stands (Maria Cramer & Sarah Schweitzer, "BU Moves to Clean Up Foul Language at Games," Boston Globe, 9/12/2006). This policy most affects the BU men's hockey games, as the Terriers are one of the best teams in the country and often sell out the arena. Apparently, some of the more rabid Terrier fans "use profane chants" to express their loyalty, as they believe that "cursing is practically tradition." Here's BU's dean of students, Kenneth Elmore, on the thinking behind this new policy, which BU claims has also been adopted by Ohio State University and the University of Wisconsin:
"Standing and shouting obscenities does not have a place. I don't equate school spirit with the yelling of obscenities," Elmore said.

School officials hope spectators return to more wholesome cheers.

"I know our fans can be classy," Elmore said. "I hope they can use cheers we can all participate in and feel proud to do."
Although it's unclear how BU students in general feel about this new curse-free policy, the Globe article interviews one sophomore who doesn't seem to like it:
``That's terrible and an infringement on our freedom of speech," said Kendall Lyons, an 18-year-old sophomore who often takes part in the chants. ``Sports won't be fun anymore."
Geoff discussed bad words and sports in June, and touched on some of these same issues.

While I agree with Boston University that racist or sexist remarks should not be tolerated, I question the University's crack-down on obscenities. Given that a lot of people seem to swear during games, how will this policy be enforced? Now, it could be only intended for either groups of fans swearing in a chant or the habitual, usually intoxicated curser, particularly when he is sitting near children (i.e., the true jerk who we all agree should be thrown out), rather than the fan who occasionally reacts to a disappointing turn in the game with a swear, but couldn't the swearing groups and habitual curser be kicked out anyway for being disruptive? Is this policy really needed?

And is promoting "wholesome cheers" realistic or even desired, especially if they might jeopardize the home court/field/arena advantage? On the other hand, might this policy be a helpful strategy for diminishing the "us" versus "them" mentality that pervades sports so much, and might it also discourage the potential for group violence?

 
Fallout from "Resolved" Deion Branch Saga: Fines, Tampering Charges, and Mind Games?

The New England Patriots have resolved their embittered contractual dispute with hold out wide receiver Deion Branch by trading him to the Seattle Seahawks for the Seahawks' 1st round pick in the 2007 NFL Draft. When compared to other recent trades of high profile wide-receivers (e.g., Donte Stallsworth only fetching the Saints a 4th round pick and reserve linebacker Mark Simoneau; Javon Walker only netting the Packers a 2nd round pick; Ashley Lelie only providing the Broncos with a 3rd round pick), many believe that the Patriots obtained a terrific return for Branch, a 26-year-old who has never caught more than 78 passes or accumulated 1,000 yards receiving in a season. Although Branch is a former super bowl MVP, he probably isn't a "number 1" wide receiver, particularly given his injury history. So the Patriots seemed to do pretty well with this mess, and the only better outcome probably would have been to find a way of resolving their dispute with Branch and bringing him back to the team.

But the Patriots aren't satisfied. They are now demanding that Branch pay the full amount of fines he accrued by not reporting to the team. Those fines exceed $600,000. This demand appears to be within the Patriots' rights, and the likely reason they hadn't already asked for them is that they didn't want to burn bridges with Branch while there remained a possibility of him returning. With him gone, however, those bridges are probably irreparably destroyed, so they might as well collect (although I suppose doing so could run the risk of upsetting some of Branch's former teammates, who seemed to love the guy). Even with Branch set to sign a 6-year, $39 million deal (including a $13 million signing bonus) with the Seahawks, $600,000 is an awful lot of money.

According to ESPN's Chris Mortensen, the Patriots are also preparing to file tampering charges against the New York Jets because the Jets, and specifically head coach Eric Mangini, told Branch what they had offered the Patriots as compensation for the wide receiver. The Boston Herald's John Tomase has the story:
The Patriots allowed Branch to negotiate with other teams during the last week of August. During that time, the sides were granted permission to discuss contract terms only. The Patriots contend the Jets told Branch about their offer of a second-round pick after putting together a six-year, $39 million contract.

The Patriots believe that knowledge “poisoned the waters” and guaranteed Branch wouldn’t re-sign with the team.
To add to the drama, the Patriots are playing the Jets this Sunday and 35-year-old Mangini--the NFL's youngest head coach--was the Patriots' defensive coordinator until this year. I wonder if Bill Belichick is simply trying to get into his former protégé's head as he prepares for this Sunday's game?

Monday, September 11, 2006
 
Sports and Stadium Security, Five Years Later

Chris Dade of the Beaumont Enterprise has a great feature story on legal issues surrounding stadium security and how views about those issues, and sports in general, have changed since the September 11, 2001 terrorist attacks ("When Games Really Mattered," 9/10/2006). Dade interviews several people for this story, including me. Here are some excerpts:

As in other times of national distress, sports helped the nation cope in the weeks and months that followed Sept. 11. "It certainly was that way immediately after 9/11," said Peter Roby, the director for Northeastern University's Center for the Study of Sport in Society in Boston. "Sports played an important role in people feeling comfortable with their lives." . . .

The U.S. may be divided on the war in Iraq and Bush's handling of terrorism, but it's united on another front, in America's stadiums and arenas. "It's a place for people to lose themselves," Roby said.

Keeping thousands of spectators safe, however, is a matter that has received more consideration in the years since the attacks, said Michael McCann, a law professor at Mississippi College School of Law . . .

McCann said another dynamic of security at sporting events comes from the attentiveness of spectators. He contrasted airline passengers on the lookout for anything suspicious with sports fans who are mainly focused on the game. "They're not thinking about security or what's around them," McCann said. "When you go to a game, you go to watch the game." . . .

Lines that form outside stadiums as spectators go through security ironically "could become a target," McCann said. "You never know."

Lynn Jamieson, a professor in the Department of Recreation and Park Administration at Indiana University, said the level of security at sporting venues generally varies within each league. She said the experience patrons have with security at a stadium or arena can be similar to an airport.
"As with anything else, you can have an OK experience with security at one airport and a horrendous experience at another," she said. "There is never not going to be an issue."

If you're interested, I address stadium security, including the legality of pat-downs, in my forthcoming article in the Willamette Law Review entitled "Social Psychology, Calamities, and Sports Law".

Do you think increased efforts at stadium security have been working or has the absence of terrorist strikes at our sporting events simply reflected a lack of a credible threat?

 
New Sports Law Scholarship

New this week:
Howard M. Wasserman, Fans, free expression, and the wide world of sports, 67 UNIVERSITY OF PITTSBURGH LAW REVIEW 525 (2006)

Friday, September 08, 2006
 
Overseas Epiphany? Coach K Now Opposes NBA Age Limit

We spend a lot of time on this blog discussing the NBA age limit, and doing so has generated some great debates. To continue in that tradition, I bring you news that Duke men's basketball coach Mike Krzyzewski--a longtime supporter of a higher NBA age limit--has done a 180 and now vehemently opposses it. Ken Tysaic of the Charlotte Observer has the story on Krzyzewski's stunning change of heart, which occurred while he recently coached Team USA to a bronze medal in the FIBA World Championships (and thanks to D'arcy Mulligan for the link). Here are some excerpts:
After coaching Team USA's LeBron James and Dwight Howard, who went straight to the NBA from high school, Duke's Mike Krzyzewski said he opposes the year-old rule that prevents NBA teams from drafting high school seniors . . .

Now he is speaking out against it, saying basketball holds back teens while tennis, soccer and golf do not.

"We have a 16-year-old girl (Michelle Wie) that's winning money, a beautiful girl," Krzyzewski said. "They should be given those opportunities, and we should be able to adjust. It's not going to hurt the college game. The college game is going to be OK no matter what. I think this puts the college game in more of harm's way than it needs to be" . . .

He said when basketball players who don't want to attend college are forced onto campus for a year, college officials have trouble guaranteeing players will take their academic responsibilities seriously.

"There are a lot of successful people in this country who didn't go to college," Krzyzewski said. "They should be given the right to do that. We have one of the richest men in the world (Bill Gates) who didn't finish college, giving away hundreds of millions of dollars. To me, I'd rather have it the way it was (with no age limit)."

Some of us have been saying the same things for years, but I'm glad that Coach K has crossed over and joined the ranks of dissenters.

Thursday, September 07, 2006
 
The NFL's New Sideline Ban: Another League Effort to Control Content

The NFL season kicks off this weekend. But for the first time this season, you will not see the same coverage that you experienced in the past from your favorite local T.V. newscaster before and after the game. That's because last March, NFL owners adopted a resolution that bans local television photographers from the sidelines during regular season games. The only media affected by the new rule are local television photographers. The new rule does not impact still photographers from newspapers or other print outlets. All local stations, including affiliates of networks that have rights to televise games, must clear the sidelines 20 minutes before kickoff and they can return to do postgame interviews. Also, local stations are banned from having sets for pre-game shows on the field or anywhere that uses the field as a backdrop.

The NFL says the purpose of the rule is to protect their most important asset, the video content of the games, as well as clearing congestion from the sidelines during games. The NFL also says that stations can continue to show highlights using every play of every game from network telecasts. But local news stations are very upset about the new rule. According to Mike Shipley, news director at KSDK in St. Louis:

It's a question of fairness. It's a question of access. It's a question of creative control over our own storytelling process....We see great disparity in the fairness of this new rule... Our photographers will be kept in a room behind the scenes during the game. Should something happen in the stadium where the game is being played, we won't have the ability to photograph it for reporting purposes. In our role as the surrogate for the public owners of the building, we feel this controlled access is a slap in the face of the people who made it possible for the team to play here by building the Dome with tax dollars. The game itself notwithstanding, there are other reasons why access to the sidelines during a game should be allowed. Other newsworthy events can happen during a game that we would not be able to show you. Over the previous years, we've covered the heartwarming and the tragic with pictures and reporting our viewers have come to trust. That will no longer be possible.

The Detroit News interviewed the sports director of a local station in Detroit:

"It hurts us in so many ways," said Don Shane, sports director of Channel 7. "Therefore, it hurts the fan or the viewers. We care about the product. We care about making it look as good as we can for the fan." Shane contends that personal touches of game-day coverage will be lost. An example is a three-touchdown game by Roy Williams last season in the Lions' 29-21 victory over Arizona. After each touchdown, Williams handed the ball to a different fan in the stands. Channel 7's crew shot each fan. "The network was lucky to show one of those," Shane said. "We had each one of those plays. We went over and interviewed each kid. You no longer will have access to do those kinds of stories."

While the sideline ban may not be "fair" to local stations or to the local fans, the NFL appears to be within their legal rights to impose such a ban. The NFL has the legal right to control the broadcasts of its games. Indeed, networks pay the leagues huge fees in return for the right to broadcast the games. Furthermore, the news does not have any constitutional right to access sports facilities (even publicly funded stadiums) in the name of gathering newsworthy information. A constitutional law professor colleague of mine forwarded me this case quote in support of that proposition: “Where a private commercial venture presents a newsworthy event and grants exclusive rights of coverage to a news organization, freedom of the press does not confer an equal right of access on other news organizations, even though the event is presented in a facility which is owned and operated by government.” Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981) (case involving a skating championship).

Putting the legal issues aside, is it a good business decision for the NFL to deny access to local television stations? Is this new rule another indication of a movement by the leagues to protect their most valuable asset, the content of their games, and to prevent the unjust enrichment of third parties? -- for example, MLB's disputes with CBC (the fantasy league) and the Slingbox maker. If so, doesn't that make good business sense?

Wednesday, September 06, 2006
 
The Ethics of Dogging It in Little League

UCLA Law Professor Eugene Volokh picks up on the Ethics Scoreboard's problem concerning a curious event at last month's Little League World Series. Here's the scenario:
On August 11 in Bristol, Conn., a Little League team from Colchester, Vt., only had to retire its Portsmouth, N.H. opposition in the top of the sixth inning (Little League games are six innings rather than nine) to win the game 9-8 and move on to the New England regional championship game.

But there was a problem. The Vermont team had made its third out in its half of the fifth inning before player Adam Bentley got to the plate. The Little League has a strict rule that requires every player to bat at least once a game, and the penalty for violating it is forfeit. Vermont's coach Denis Place realized, to his horror, that even though his team had the lead entering the last inning the only way it could avoid losing by forfeit was for Bentley to get an at bat. For that to happen, the New Hampshire team would have to tie the score or take the lead, requiring the teams to play the last half of the sixth inning.

Place held a meeting of his players at the pitcher's mound and instructed them to let New Hampshire score a run. The plan: walk the first batter, and ensure that he made it home with the assistance of wild pitches and intentional errors so the game would be deadlocked at 9-9. Then, hopefully, win the game in the bottom of the sixth inning, with Adam Bentley getting his mandated turn at the plate.

Not so fast. The New Hampshire team's coach, Mark McCauley figured out what was happening and ordered his players not to score. So after a walk and two wild pitches allowed a New Hampshire runner to reach third base, the player refused to advance to the plate despite another wild pitch and a fielding error. McCauley also told his players to strike out intentionally, preserving Vermont's lead but guaranteeing a successful New Hampshire protest that, under the rules, would require that New Hampshire win by forfeit.

This obviously led to a ridiculous spectacle: one team trying to give up a run while the other team was trying to make outs and avoid scoring. The perplexed umpires understandably chose to end the debacle by ejecting Place and his pitcher from the game. Vermont won 9-8 ... and then New Hampshire was awarded the victory by forfeit, because Adam Bentley never got his turn at bat. The New Hampshire team advanced to the next round.
The Question: Whose conduct was unethical? Professor Volokh's take:
the Vermont coach didn't behave unethically (though obviously he did behave negligently by not playing Bentley earlier). I also tend to agree with the Scoreboard that the New Hampshire coach did behave unethically, but I'm considerably less confident about that judgment.
Something oddly similar actually happened to me, and effectively ended my Little League career. My team, the Manoa Orioles, was up against its arch rival, the Nuuanu Dodgers (Manoa and Nuuanu are neighboring valleys on the island of Oahu, and there's some understandable tension). In any event, the regular season series was split, and we faced the Dodgers in the first round of the playoff. My Orioles were crushing the Dodgers, such that the umps invoked the "Mercy Rule" and called the game after five innings (we were winning by something like 17 to 3). We had a team party and went to bed believing we would be moving on to the next round. But, as it turned out, one of our players (thankfully, not me), had not played the minimum two innings. A parent from the other team noticed while reviewing the scorecard, filed a complaint the next day, and we were awarded a loss by forfeit (the Dodgers then advanced to the next round of the playoffs).

At the time, it was certainly hard to accept that result -- I imagine the Vermont players in the Little League World Series felt similarly robbed. As an Oriole, I wanted at least a chance to replay the game -- and that might have been the fair solution to the New Hampshire-Vermont debacle described above.

With time, however, I've come to rethink a bit my feelings about my own experience. Little league rules requiring each player to come to bat, or play a certain number of innings, are there for a reason. Professor Volokh's assertion that the Vermont coach was merely "negligent" for letting one of his players miss the minimum number of at-bats strikes me as inadequate. Instead, I would argue that the Vermont coach was unethical for not giving that player a chance at bat. Of course one wants to win, but the point of Little League is also to give every player a chance to shine, and to develop skills and experience. It's unethical to keep a player -- even a "scrub" -- on the bench just to eke out a win. Even if the omission could be said to be an "accident," it was likely the result of an improper fixation on winning and an inadequate attention to the smaller, less potent kid sitting on the bench. In my opinion, at the Little League level, it's better for a team to lose with everyone getting to bat than to win relying only on its strongest players.

Tuesday, September 05, 2006
 
Figuring out Jeffrey Kessler's Litigation Strategy for Deion Branch

Check out this curious statement in an afternoon posting by Michael Felger of the Boston Herald and ESPN Radio:
Furthermore, [Deion Branch's attorney Jeffrey] Kessler revealed today that if Branch loses both grievances, he will then seek damages against the Patriots for extra compensation this year. Kessler said Branch will seek to be paid the difference between what the Pats are scheduled to pay him this season (just over $1 million, minus fines) and the first-year money being offered by Seattle and the New York Jets.
If Branch loses both of his grievances against the Patriots, what grounds would he then have to sue the Patriots or seek arbitration against the Patriots for this alleged "extra compensation"? I could understand such an attempt if he wins his greivance, but if he loses? What contractual or other legally-cognizable obligation would the Patriots have in that instance? Or is Kessler--a hugely successful sports litigator--referring to a third greivance that would be filed if Branch loses the first two? Or has the NFLPA simply decided to make this some kind of test case?

 
New Sports Law Scholarship

New this week:
Roger I. Abrams, Alcohol, drugs and the National Pastime, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 861 (2006)

Paul A. Fortenberry and Brian E. Hoffman, Illegal muscle--a comparative analysis of proposed steroid legislation and the policies in professional sports’ CBAs that led to the steroid controversy, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 121 (2006)

Michael A. McCann, The reckless pursuit of dominion: a situational analysis of the NBA and diminishing player autonomy, 8 UNIVERSITY OF PENNSYLVANIA JOURNAL OF LABOR & EMPLOYMENT LAW 819 (2006)

Ryan Connolly, Note, Balancing the Justices in anti-doping law: the need to ensure fair athletic competition through effective anti-doping programs vs. the protection of rights of accused athletes, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 161 (2006)

Matthew G. Massari, Note, When fantasy meets reality: the clash between on-line fantasy sports providers and intellectual property rights, 19 HARVARD JOURNAL OF LAW AND TECHNOLOGY 443 (2006)

Jessica J. Penkal, Comment, When legislative regulation strikes out: proving a products liability case against metal baseball bat manufacturers, 67 MONTANA LAW REVIEW 315 (2006)

Ryan Schaffer, A piece of the rock (or the Rockets): the viability of widespread public offerings of professional sports franchises, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 201 (2006)

Matt Williams, Note, Making encouraged expression impercep-tible: the Family Movie Act of 2005 is inconsistent with the purpose of American copyright, 5 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 233 (2006)

Monday, September 04, 2006
 
Celebrating Labor Day: Is Wall Street or Norma Rae Winning?

Labor Day is often associated with rest and relaxation. And what better way to rest and relax than to check out a review of recent labor law postings. Paul Secunda and Richard Bales over at Labor Prof Blog have an extensive and engaging post today that does just that. They are hosting the 73rd Edition of the Blawg Review, and what better day for a couple of labor and employment law profesors to host it than on Labor Day.

Interestingly, for each post they discuss--and the postings are from a wide-array of blogs--they declare whether mangement ("Wall Street") or labor ("Norma Rae") won. For instance, they examine our Deion Branch post below and declare the winner to be Wall Street, in this case the New England Patriots (and they do so despite Colin's impressive efforts in the comments section). Be sure to check out Paul and Richard's post, it's both informative and entertaining.