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Friday, November 30, 2007 Column on Sentencing of Michael Vick's Co-Defendants

I have a new column on Sports entitled "As the Dominoes Fall: Assessing Michael Vick's Fate after Co-Defendants' Sentencing." It examines the potential impact of today's sentencing of Vick's co-defendants, Purnell Peace and Quanis Phillips, on his upcoming sentencing on December 10.

Earlier this week, Alan Milstein wrote an excellent piece that takes a critical approach in studying the Justice Department's high degree of interest in the wrongs committed by Vick and Barry Bonds.

Hope you have a chance to read my column.

As an aside, good luck to all the law students who read this blog and who are taking final exams over the next few weeks.

Alabama Jury Gets Revenge Against NCAA

Yesterday, a jury in Alabama awarded $5 million to a former University of Alabama football booster, Ray Keller, who claimed the NCAA defamed him when it imposed penalties on the Crimson Tide in 2002. Keller maintained that the NCAA wrongly lumped him in with other boosters who were accused of making improper contacts and payments to recruits in the 1990s. A timber dealer and Crimson Tide fan, Keller argued that the NCAA slandered and libeled him during the announcement of penalties by referring to him and others as "rogue boosters," "parasites" and "pariahs." According to the press report, the NCAA didn't use the name of Keller or other boosters in announcing penalties against Alabama, but their names appeared in news accounts and the university sent Keller a letter barring him from its athletics program. The jury awarded him $3 million in punitive damages, $1 million for mental anguish, $500,000 for economic loss and $500,000 for damage to reputation.

This trial wasn't about defamation. It essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by 12 Crimson Tide fans! As a torts professor, I've read plenty of defamation cases and I will be really surprised if this judgment ends up sticking on appeal (but I've been surprised before so I guess that's not saying much).

First, a statement must be defamatory by definition, which means that the statement must tend to adversely affect the plaintiff's reputation, for example, by impeaching the plaintiff's honesty or integrity. Referring to the former boosters collectively as "parasites" and "pariahs" is not any more defamatory than it is to simply say that the boosters made improper contacts and payments to recruits in violation of NCAA rules. In other words, what is potentially damaging to the former boosters' reputations in the community is the fact that the NCAA implicated them in wrongdoing which led to sanctions imposed on Alabama's football program, not that the NCAA called them parasites and pariahs.

Second, even if the NCAA's statement is deemed defamatory, the damages award seems excessive. Keller would most likely be classified as a private person, not a public figure. However, when the defamatory statement relates to a private person involving a matter of public concern or controversy -- such as penalties imposed on Alabama's football program as a result of improper activity by boosters -- the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) held that the plaintiff has the burden to prove that the defendant was negligent in ascertaining the truth of what it published. The NCAA performed a full investigation and determined that the boosters made improper payments and contacts. To my knowledge, there is no evidence of bad faith or even a negligent investigation on the part of the NCAA.

Finally, even if the NCAA was negligent in ascertaining the truth of what it published, Gertz held that damages are limited to the "actual injury" sustained by the plaintiff, which includes out-of-pocket loss, impairment of reputation, humiliation and mental anguish. However, there must be competent evidence of actual injury. Damages are not presumed, which is typically the case in libel actions relating to private persons involving matters of purely private concern. Thus, any award of punitive damages in this case can hardly be justified absent a showing that the NCAA made the statement knowing it was false or with reckless disregard for the truth. Also, $1 million for mental anguish on these facts seems fairly excessive.

Wednesday, November 28, 2007
More on instant replay

At ESPN, Jim Caple argues, on the eve of The Big Game and the 25th Anniversary of The Play, that it is a good thing there was no instant replay in 1982.

Three key comments from the story:

Nowadays, officials would review replays of The Play for so long that before they reached a verdict, Silicon Valley engineers would have developed another digital recording system that Microsoft and Apple would make us purchase in order to further analyze the decision. And then the refs would undoubtedly overrule The Play -- with more than two dozen players from both teams on the field, plus more than a hundred band members and cheerleaders, a replay official surely would find something objectionable -- and ruin the greatest play in college football history.
* * *
With today's video technology, we could review The Play from a dozen angles and use computer enhancements until we felt certain whether Dwight Garner's knee was down or if Mariet Ford's lateral really was backward. But, chances are, neither side would go away happy with the result.

But football is a game, not a court of law. And if you try to achieve perfection, you lose something more important. The beauty of sport is that it is played by humans, not computer programs. We are imperfect. We make mistakes. We fumble the ball, drop passes and trip over our own feet when there is nothing but open field ahead. And sometimes, Gary Tyrrell runs onto the field with a trombone. That's what makes the game unpredictable. That's what makes it compelling. That's what makes it fun.

[Editorial Comment: Even if it were a court of law, I remain unconvinced that video evidence necessarily gives perfection or even brings us closer to it].

What matters is that a group of trained, dedicated referees followed The Play that day as best they could, and they ruled on it as fairly and honestly as possible.

I have made before how I feel about instant replay. Looks like I found at least one person who agrees.

Loyola Law School Los Angeles Symposium on Discrimination in Sports

Professor Daniel Lazaroff of Loyola Law School Los Angeles and director of his school's Sports Law Institute, passes along the following info about what should be an engaging and provocative sports law symposium:

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On Friday, January 18, 2008, the Loyola Sports Law Institute and Loyola Law School will be presenting our fourth annual symposium. This year's event is entitled "Discrimination Issues in Sports: Race, Gender & Sexual Orientation." The symposium will begin at 8:30 A.M. and run until 3:45 P.M. We think it will be an informative and enjoyable event.

The race discrimination panel will include Dusty Baker (Manager, Cincinnati Reds), Bill Gould (Professor, Stanford Law School) and Ken Shropshire (Professor, Wharton School). The gender panel features Anita DeFrantz (IOC Member), Nona Lee (V.P. and General Counsel, Arizona Diamondbacks), Jacqueline Michaels (OCR, U.S. Dept. of Education) and Kim Ng (V.P. and Ass't G.M., Los Angeles Dodgers). The scheduled sexual orientation speakers are Jim Buzinski (, Karen Doering (Senior Counsel, National Center for Lesbian Rights) and Claire Williams (Graduate Teaching Ass't, Ohio State University).

Beginning on Thursday, November 29, 2007, access to registration will be available online at this link. I would greatly appreciate it if you would share this information with your colleagues and students. We will admit students from any law school at no charge, Others will be required to pay $50 for the symposium and lunch ($70 with 5 hours of MCLE credit).

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Please feel free to contact Dan with any questions.

Tuesday, November 27, 2007
Where Have You Gone Barry Bonds?

Over on The Situationist, Will Li has an excellent piece on the myth-making of baseball records. He takes particular notice of Joe DiMaggio's 56-game hitting streak and Barry Bonds career home run record, which currently and maybe permanently stands at 762 home runs.

It's an enjoyable read for anyone interested in baseball history. The lack of attention DiMaggio received at the time of his record is almost unbelievable, though years later he would be duly honored.

As Will details, the treatment of DiMaggio's record invites the intriguing question of how Bonds and his record might be remembered decades from now. Might future generations hold Bonds and his record in higher esteem than do many of us today, perhaps because they will focus more on the extraordinary raw number and less on the flaws of the person responsible for it?

Sunday, November 25, 2007
The Bonds Market

Sorry for the awful pun. But back in journalism school, we practiced writing tacky headlines just for the fun of it.

Dave Hoffman at Concurring Opinions writes that trade on the prediction markets shows a belief among traders in a 75 % estimate that Bonds will be convicted or plead guilty to the original charge. And given the trading rules, Dave suggests there is a near-certainty among traders that Bonds will be convicted or plead guilty to something.

Throwing Tennis Matches

The New York Times reported Sunday on several investigations into possible throwing of matches at the behest of gamblers, including a withdrawal loss by world-No. 4 Nikolay Devydenko in Poland last summer. The trigger for the investigation was irregular betting activity on the match through Belfair, an English online sports exchange. Belfair voided the bets on the match. Its records showed that nine betting accounts in Russia (Davydenko's home country) stood to make $ 1.5 million if Davydenko lost. The story mentions several players who have acknowledged being approached about tanking matches and describes the sense among players that tanking, or at least efforts by gamblers to approach players with offers to fix matches, happens frequently. Right now, no one is naming names. The ATP has compiled a list of 140 "suspicious" matches since 2002.

The common assumption is that mainstream professional sports are not fixable because players make so much money that there is no incentive to throw games. But there are some things about tennis that call this into question. First, while the lack of financial incentive perhaps is true at the very top levels (Davydenko notwithstanding), lower-ranked players do not make the kind of money that automatically immunize them to temptation. The players mentioned in the story as having been approached by gamblers generally are ranked in the second-50 or outside of the top-100.

Second, tennis is an individual sport, so a player can throw a match without having to get cooperation from teammates. Third, Patrick McEnroe is quoted as saying that tennis is a very easy game to manipulate, that a player could throw a match and the untrained eye never would know it.

Fourth, and related, tennis is a long season with a lot of travel and a lot of nagging and not-so-nagging injuries (Davydenko retired from the suspicious match because of a foot injury); even the best players are going to have letdown matches, losing in the early rounds to lower-ranked players in more-obscure tournaments. This last point has two effects. First, it provides a temptation to players--"If I am feeling so exhausted or nicked up to play my best, why not take the money from a gambler?" Second, it makes an otherwise-inexplicable loss less suspicious, except for the strange gambling activity.

Finally, tennis is an international game. Thus, the risks of gambling have to be considered not solely from the standpoint of the American economy but also from the still-developing economies of former Soviet-bloc nations, notably Russia. Several of the stories about attempted fixing happened at events in Russia. This international flavor makes enforcement an interesting question. Both the Association of Tennis Professionals (ATP) and the International Tennis Federation (ITF) are investigating for possible administrative enforcement. But there is a question of what country, if any, could enforce its laws against such activity and against whom.

Worth watching the story.

Vick, Bonds and the Questionable Pursuit of Justice

Now that Michael Vick sits in a jail cell and appears to be slowly losing all the money he has rightly earned over the past few years, is it time to talk about some of the more troubling aspects of the story? By all accounts, if you can put aside the dog fighting violations for a minute, and maybe you can’t or shouldn’t, Vick was one of those superstar athletes who really cared about those less fortunate and worked to make things better in the communities like the one he grew up in. He was certainly a joy to watch. Without question, he made a serious error in judgment and did wrong. But those involved in this field of sports law might be ready to discuss some of the issues his prosecution and conviction raise.

First, where were Vick’s advisors: his agent, his attorneys, his friends, teammates and coaches? Surely some of these people knew he was involved in this activity and either turned the other way or encouraged his belief that there were no consequences for an athlete of his stature for such conduct. Too often, those close to stars like Vick are obsessed with staying close to stars like Vick, so much so they are afraid to tell the man what he may not want to hear. Vick grew up in the projects of Newport News, Virginia, a crime-ridden area known as BadNewz. As he told an interviewer, “When I was 10 or 11, I would go fishing even if the fish were not biting just to get out of there.” Vick now is one of the all too many African American young men imprisoned in this country, though it appeared he had escaped such a future. No matter how passionate you feel about the plight of animals, that is a human tragedy.

Second, many of us have been surprised to learn that this culture of dog fighting is fairly widespread. Some 50,000 Americans apparently are involved in the activity. Internet sites and numerous books promote and cater to what many call the “sport.” Apparently, many a small town Southern sheriff knew where and when the dog fights were and did nothing to stop them. Yet the United States Justice Department saw the necessity to get involved and prosecute Michael Vick. This is the same Bush/Gonzalez Justice Department which spent four years and millions of dollars to indict Barry Bonds, another prominent African American millionaire athlete, the same Justice Department which had trouble telling the truth when testifying before Congress about the way it conducts its business, the same Justice Department that had an interest in moving the Administration’s numerous failures off the front page.

Why Vick? Maybe he was just doing the wrong thing at the wrong time and the Feds had no choice but to prosecute him when they learned of his criminal activity while executing a search warrant on unrelated matters. Maybe the Feds also had little choice but to prosecute Bonds once they believed he committed perjury, even if the conduct he refused to admit had occurred was not a crime and had obviously been committed by numerous others including the white player who supposedly “saved” baseball.

All I know is that the prosecution of either of these splendid athletes gives me no joy, as it apparently does for some in the media and others who love to see superstars brought down to size.

Saturday, November 24, 2007
Players and Clubs: Quit Paying Agents Huge Commissions!

Sports economists may be able to justify the Yankees' decision to pay A-Rod $275M based upon economic formulas that take into account attendance, broadcast fees, concessions, merchandising and other forms of revenue (See, e.g., Jorge L. Ortiz, A-Rod Deal is Still a Revenue Winner for Yanks, USA Today, 11/21/07). But what about the decision of the Yanks and A-Rod to pay $14M to a third party agent who didn't even negotiate the deal? Jerry Crasnick, an reporter and the author of License to Deal, wrote an interesting article last weekend analyzing the Yankees/A-Rod deal as well as the role that Scott Boras played in the process (Boras Took a Hit But He'll Survive,, 11/19/07). Here are some excerpts:
[Boras will] soon receive a commission of $14 million or so for A-Rod's deal with the Yankees, and he didn't even have to pay Kinko's to print and collate a 100-page "homage to Alex" binder.
We know that A-Rod, after seeking guidance from investment icon Warren Buffett, got the ball rolling by contacting the Yankees directly. The Steinbrenners, who wanted no part of Boras, are now dealing with him because baseball's labor contract
decrees they do so.
For a multitude of reasons, the A-Rod affair will not go down as Boras' crowning achievement. The decision to exercise an opt-out clause during Game 4 of the World Series -- and no matter what Boras says, it came from his end -- was incredibly ill-timed. Then the bidding war that Boras was expecting failed to materialize, to the point that Rodriguez, with the support of his wife, Cynthia, felt the need to reach out personally to the Yankees to achieve détente. What was the ultimate cost to Rodriguez? As ESPN's Buster Olney recently reported, the Yankees were willing to begin talks with Boras with an opening offer of five years and $150 million, in addition to the three years and $81 million remaining on his deal (with $21 million coming from Texas). The Yankees might, indeed, have been willing to go to nine years and $260 million in the end, but we'll never know for sure.
Is Boras entitled to his 5% commission, let alone any commission at all? And even if Boras had negotiated A-Rod's deal with the Yankess, I still couldn't justify the fee. As a starting point, A-Rod is obviously worth at least $25M per year without an ounce of help whatsoever from any agent. Why should an agent take any percentage whatsoever of that first $25M?
This post isn't a criticism of Boras as an individual or anything he did regarding A-Rod's deal; it's a criticism of the third party agent system in general. In the introductory paragraph above, I purposefully posed the question why the Yanks and A-Rod both decided to pay such a large commission to a third party. I say "both" because I fail to understand why the unions and leagues continue to allocate to third parties to the player-contract relationship such a huge chunk of the revenue pie -- Granted, it may have been justifiable 30 years ago but times have certainly changed. I've written about how the system is detrimental to both the players and the clubs in all kinds of ways, and how unions and leagues could collectively bargain for changes that would be mutually beneficial, including unions representing players in individual contract negotiations. In his article, Crasnick quoted a statement made by Nationals president Stan Kasten on XM Radio, who tends to agree: "I used to think of Scott as a necessary evil, and now I've changed, I no longer think he is necessary. He and I are friendly enough personally, but I think the way he conducts himself is perfectly consistent with the job he's given within the system we have. I think the system could be better, and I've talked about this publicly, for all of sports, for all of fans, and for all of players, if the union took over that job, and we had an agent free universe, I think everything would be better."
But Crasnick suggests that the union really needs agents like Boras:
We know for starters that the Players Association has a major stake in Boras' emerging from this saga with his clout intact. You see the union's devotion to Boras every time a younger, less established agent complains that one of Boras' "scouts" in the minor leagues is trying to steal a client. And you see it when Fehr issues a statement saying the union is worried about collusion in regard to A-Rod's contract talks. The union loves and protects Boras because he negotiates the record contracts that set the market for the smaller deals. He creates the rising tide that lifts all boats.
I think Crasnick is overexaggerating the union's dependence on Boras. For starters, the fact that the union has chosen not to proactively discipline Boras for client stealing is not due to a "Boras protectionism" effort as many agents might like to think. It's more a component of the myriad issues surrounding a union's disciplining third party agents for misconduct, which include affording agents sufficient due process, affording each player autonomy in the choice of agent, allocating sufficient resources towards enforcement, lack of sufficient evidence, numerous factual issues, and concerns regarding arbitrary enforcement. I also disagree with Crasnick that Don Fehr's recent statements about collusion associated with A-Rod's contract had anything to do with a "devotion" to Boras.
Indeed, approx. 15 years ago when player salaries were half of what they are today, Fehr even questioned whether a commission-based agent fee is the best system for the players:
[W]e are beginning to get fairly significant pressure from players to consider modifying [the player-agent] relationship. There has to be another way to do this because the fees are getting out of hand. As an athlete begins to earn 3 or 4 or 5 million dollars a year, is the work involved that much more lengthy than it was before? As a matter of fact, the agent's skills may improve and his or her bargaining power may be greater which could mean the process entails less work. Do percentages make any sense? Well, maybe not. (See Donald Fehr, The Second Annual Sports Dollars & Sense Conference: A Symposium On Sports Industry Contracts And Negotiations, Union Views Concerning Agents: With Commentary on the Present Situation in Major League Baseball, 4 MARQ. SPORTS L. J. 71, 81 (1993)).
Maybe the players need to consult a sports economist for a formula to justify the $14M commission paid on A-Rod's deal....

Thursday, November 22, 2007
Old foes

There is hardly a more forceful contest than that performed by an English and French team on a rugby pitch. The rivalry between the old foes is at its highest when played out on the field of play. But last week’s news that Phil Greening, England’s former international player, had been ordered by a French court to pay Aurelién Rougerie, a French international, EUR 40,500 (US$59,100) as compensation for the injuries caused to the latter by the former on the field of play are a dramatic extension of the documented enmity.

5 years ago, in the course of a game between Wasps (of England) and Montferrand (of France), Rougerie suffered a severe injury to his throat that required 3 surgeries and put him out of the game for more than 4 months. Allegedly, the injury resulted from a hand-off (a technical feature of rugby according to which the attacking player fends-off the attempted tackle by the opposing player by extending his arm, with an open hand, and brushing aside the would-be defender) by Phil Greening. I was unable to find any footage of the incident on the web. However, it generated significant dissent amongst commentators and crucially, citing commissionaires at the game found no evidence on which to pursue any disciplinary action against Greening on the basis of the available footage. It is always risky to deliver an opinion on something you have not directly seen but in all likelihood this was a borderline case.

Even though common law and continental jurisdictions have gone about these sorts of cases in different fashion (following different legal paths and standards), it can be safely said that, in general, the judicial powers have accepted that participants in any sport are bound by a duty of care. Moreover, it has been widely accepted that the specifics of each sport and the environment created by the rules of the game (namely in contact sports) are fundamental in creating a particular environment, which must be taken into account when establishing any thresholds. Where courts have not been so unanimous is in finger-pointing the breaching conduct leading to a “guilty” decision. As a matter of principle (especially because the incident hereunder took place during a rugby match, a highly aggressive sport) let us consider reckless disregard as the applicable standard for the ascertainment of a breaching conduct.

Taking the foregoing into account, can we readily accept such a judgment? It is impossible to say with any degree of certitude whether Greening’s hand-off can be deemed a fair reflection of the rules of the game, even if performed with a level of technical deficiency; moreover, it is impossible to say whether his technical gesture was one that could be expected from a rugby player, a naturally aggressive sort of athlete playing a contact sport, who is required to act accordingly, even if sometimes against the rules (that’s why fouls exist). Or was it an absolutely unreasonable, nonsensical, foolish, absurd, action that goes beyond the foul and into an area of civil liability? In contact sports such as rugby Greening’s hand-off would have to be something bordering the ludicrous to merit such an award. The French court has the benefit of doubt because it reviewed the incident and I did not.

One final note. Rugby authorities and players alike have been very loud in their cries against the decision, claiming it will have repercussions and hinting it may even change the game. I doubt this decision has the potential to create international havoc but at least in France players will be thinking twice before upping their aggressiveness levels in a hand-off or even a tackle.

Wednesday, November 21, 2007
DOJ Joins Disabled Veterans in Action Against U of Michigan's 'Big House'

One of the more notable aspects of the Americans with Disabilities Act is the statute's requirement that public facilities be accessible to disabled patrons. The question is, however, is in the details and this law -- as laudable as it is -- did not provide very many. Instead, the framers of the statute left the regulatory nitty-gritty to the Department of Justice to iron out.

Like a ceramics artist who creates a work from a mass of wet clay, the DOJ created its standards from similarly hazy circumstances. In doing rtitle III's mandate to ensure "readily accessible and usable for individuals with disabilities" was not adequately defined. Instead the statute directs a board of experts to issue specific guidelines implementing the ADA to the Department of Justice for consideration and adoption. [for more on the process, you can check my article in 8 Marq. Sports L.J. 263 (1998)]. Ultimately, the DOJ essentially adopted a one percent solution and more complex regulations involved adequate sightlines for disabled patrons.

While the DOJ was considering this, a spurt of new stadiums and arenas were being constructed in the mid-1990s and stadium architects and owners had trouble grappling over exactly what the regulations required. The court concluded that the regulations were considered binding, despite some judicial criticism over the confusing process in doing so. (This was noted in Paralyzed Veterans of American v. Ellerbe Becket, 950 F. Supp. 393 (D.D.C 1996) and in its appeal, found at Paralyzed Veterans of Am. v. D.C. Arena, 117 F.3d 579 (1997)

I thought of the regulatory history when I read that the DOJ joined a lawsuit by the Michigan Paralyzed Veterans of America, claiming that the stadium violated the ADA seating rules. It alleges that the seats are no adequate distributed around the stadium and fell short of the 1 percent requirement.a lawsuit against the University of Michigan's football stadium (known as "the big house").

Although the Michigan stadium dates about 100 years, renovations in 1997 bring it under the purview of the ADA regulations. The suit claims that negotiations between the parties were not successful and with only 88 seats out of 102,000, it falls below the 1 percent standard. Also, the complaint notes that the disabled seating was not dispersed throughout the stadium as all the seats are in the end zones. It adds that accessible toilets, concession stands, souvenir shops or parking was lacking. The University denies these claims.

Although the stadium is the nation's largest, that does not mean that it is necessarily willing to carve out more disabled seating. From the University's point of view, crafting disabled seating would mean taking out seating for non-disabled patrons and would likely result in a loss of seats. Generally (although not always) one disabled seat or space takes the place of two non-disabled seats, meaning a loss of people and revenues. For a venue that regularly sells out, that is not an insignificant issue. Feelings could be hurt and anger may result between non-disabled fans (who may have lost their seats) and the disabled fans who wish to see games. Still, it surprises me that the University has not settled the case. The lawsuit places an prestigious and venerable institution (with an equally prestigious and venerable football team) in the position of defendant a status quo that excludes and stigmatizes disabled patrons.

I will be following this case and will report on any updates.

Saturday, November 17, 2007 Column on O.J. Simpson Trial

I've published a new column on Sports on O.J. Simpson facing charges for kidnapping and robbery. The column is entitled "Breaking Down the O.J. Trial."

Yesterday, a judge ruled that prosecutors had established probable cause for the charges, which may lead to a trial. I discuss the prospects for a trial, the quality of the evidence, and ways in which Simpson's attorneys can attack the credibility of his former associates who are now testifying against him.

I hope you have a chance to read the piece.

Barry Bonds, the Home Run Record, and the Hall of Fame

Thursday's indictment of Barry Bonds on four counts of perjury and one count of obstruction of justice, arising from his allegedly false grand-jury testimony about his steroid use, squarely presents evidence that Bonds did indeed use performance-enhancing drugs. Bonds's statements denying steroid use only can be perjury if there is evidence that he did use steroids. The criminal process will play itself out moving forward.

But there also is the question of Commissioner Bud Selig imposing punishment within the sub-society of Major League Baseball--if it should punish, when it should punish, and how it should punish.

If: The question of whether MLB can punish Bonds for steroid use is somewhat murky. It is not clear whether steroid use was against Major League Rules during the time-frame at issue, roughly 2001-2003. There definitely was no testing for steroids then. On the other hand, steroid use was against federal law. Major League Rule 21(f) prohibits "any and all other acts, transactions, practices or conduct not . . . in the best interests of Baseball." Selig could decide that using illegal performance-enhancing drugs is conduct adverse to the best interests of baseball and punish him accordingly. It also is likely that the Major League Baseball Players Association will contest any league-imposed punishment and appeal any punishment to a labor arbitrator. This actually might present a nice test of the scope of the commissioner's "Best-Interest" power and how it is or might be limited by the CBA.

When: This is the question of whether Selig should suspend, ban, or otherwise punish Bonds now, in light of the indictment, or wait until the criminal process has played out. An indictment obviously is not a conviction and Bonds could well be acquitted, making any punishment now look like a rush to judgment. And a suspension now, pending resolution of the prosecution, likely ends Bonds's career. He is 43; if he is acquitted a year from now and Selig lifts the suspension, his next opportunity to play will be in 2009, when he will be almost 45.

On the other hand, the indictment does mean there is some evidence that Bonds used steroids (the indictment mentions a positive drug test, although it is ambiguous whether the indictment was referring to Bonds or another player at that point). And Selig can impose baseball-related punishment on proof less than beyond-a-reasonable-doubt. Thus, even if Bonds is acquitted of perjury, Selig still could decide there is sufficient evidence that Bonds used steroids and should be punished within the game, such as with a permanent suspension. Historically, this is what happened with the members of the Black Sox who threw the 1919 World Series. The eight players were acquitted (surprise--a Chicago jury would not convict White Sox players), but new Commissioner Kenesaw Mountain Landis banned the players for life anyway.

How: There are two obvious targets for baseball punishment. One is Bonds's possession of a number of historical records, including the two most-hallowed batting records--single-season home runs with 73 in 2002 and career home runs, currently with 762. The other is Bonds's selection into the National Baseball Hall of Fame.

There may be a temptation to strip Bonds of his records in recognition of the fact that he essentially achieved them by cheating--either by erasing his name from the top of the record book or by placing the dreaded asterisk next to his name. I previously have explained why I do not like asterisks. But I similarly reject stripping Bonds of the records. It smacks too much of rewriting history--of creating a "true" (but not accurate) historical record by eliminating from society's official story the enemies of the state, those who have run afoul of those in power. Even in something as (relatively) insignificant as professional sports, a respect for historical truth is important. Better to let the record show both what Bonds achieved and the way he achieved it and to let history judge. If MLB wants to introduce Henry Aaron as the "Real Home Run King" at all official events, fine--so long as the record book remains accurate.

As to the Hall of Fame, I discussed Bonds and the Hall last year, when reports first surfaced that grand jury testimony indicated that Bonds had used steroids and/or perjured himself. But this is a future issue. A player must have ceased playing five calendar years prior to selection, so if Bonds is done playing now, he would first be on the ballot in 2013.

Bonds's eligibility for the Hall of Fame actually depends somewhat on what Selig does. MLB does not control Hall of Fame selection or induction. But HOF Rule 3(E) provides that "[a]ny player on Baseball's ineligible list shall not be an eligible candidate." So if Selig bans Bonds, Bonds is ineligible for election. Indeed, Selig might impose a ban for that reason, since denying Hall election may be the only way that Baseball could meaningfully sanction him for this misconduct (assuming Bonds is done playing). If Bonds is not suspended or banned, voters still consider "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played" in deciding whether to select a player for the Hall; cheating could weigh into the balance on Bonds's sportsmanship and character. Suspicion of steroid use has kept, or likely will keep out, several other players, including Mark McGwire and Rafael Palmiero. But Bonds's Hall credentials are much stronger than either of those players; Bonds arguably is one of the three best players of his generation. It will be interesting to see how this new evidence of steroid use plays into the voters' calculus in the years to come.

(Cross-Posted at PrawfsBlawg)

Friday, November 16, 2007
Web Casts from Reversing Field

As detailed on these pages previously, Reversing Field: Examining Commercialization, Labor and Race in 21st Century Sports Law was held at the West Virginia University College of Law on October 4-5, 2007. Several Sports Law Blog contributers were panelists at the event, including Joe Rosen, Mike McCann and Andre Smith.

All panels and keynote speakers were captured on webcast and are now available for viewing in full. Keynote speakers included Len Elmore (speaking about race and sports), Ken Shropshire (describing the life of Sugar Ray Robinson), Bill Gould (discussing current labor issues in professional sports) and Bernard Franklin (describing the current state of the ncaa). Each keynote speech can be viewed in its entirety by visiting this webcast or by copying this link into your browser:

In addition, each of the panel presentations was captured and all are now available on webcast. Panels included:

Panel I: Commercialization: The Buying and Selling of the College Athlete (featuring Gordon Hylton, Alfred Mathewson and Lisa Pike Masteralexis);

Panel II: Racing From the Past: Examining Racism in Collegiate Athletics (featuring Dana Brooks, Michael McCann and coach Marlon LeBlanc);

Panel III: Professional Equality: The Rooney Rule (featuring Cyrus Mehri, Jeremi Duru, Floyd Keith and Ken Shropshire);

Panel IV: Finding Equal Footing: Gender Issues in Sports (featuring Barbara Osborne, Daniel Malasky and Deborah Brake);

Panel V: False/Positives: Debating the Merits of Drug Testing (featuring David Cornwell, Timothy Davis, Dr. Julian Bailes, and Kevin Kostco);

Panel VI: Balls or Strikes: Are Economic Weapons Finding the Zone (featuring William Gould, Joseph Rosen, Dennis Walsh and Daniel Silverman); and

Panel VII: Reversing Field: Purposeful Progress (featuring Sherri Burr, Andre Smith, Anne Lofaso and andre douglas pond cummings).

all of the panels can be viewed in their entirety at this link or by copying the following into your browser:

Copies of DVDs are available by contacting the West Virginia University College of Law.

Steroids, Baseball, and Truth and Reconciliation

Earlier this week, I was interviewed by Jerry Crasnick at ESPN for a piece on the ever-looming release of the Mitchell Commission Report, what it might prompt MLB and/or individual teams to do to any players named in the report, and the effect that might have on this winter's free-agent market. The story is not up yet, but I will link to it when it is.

During the interview, Crasnick asked whether Commissioner Bud Selig might decide to do nothing in response to the Report--perhaps in a show of mercy and amnesty or perhaps in recognition of the difficulties of punishing any players under MLB rules, under the collective bargaining agreement, and under the terms of individual player contracts. Mike previously offered his thoughts on some of these issues.

My first thought was that if Selig did nothing, he would be eviscerated for waging a phony investigation, for turning Mitchell loose to make MLB look like it was doing something about steroids, giving Selig a PR boost, when in reality it was a meaningless exercise. Alternatively, Selig would be eviscerated for starting an investigation to do nothing more than embarrass individual players named in the Report. But I think this may have been too hasty a view.

Instead, perhaps we can think of the Mitchell Commission as baseball's version of a Truth and Reconciliation Commission. This is a particular type of legal/political process that investigates, takes evidence, and attempts to reveal the facts and story about past and historical events in a society, but not with an eye towards either punishing wrongdoers or compensating victims. Rather it is for the purpose of discovering historical "truth," setting the historical record straight, and "reconciling" the society to its past as it moves forward. The most famous and successful of these was the Commission established in South Africa to investigate Apartheid. Closer to home was the 2005 Commission that investigated the Greensboro Massacre, the 1979 racially charged killing of five union protesters by a group of Klansmen (while the police did nothing to intervene) in Greensboro, N.C.

Perhaps the Mitchell Report will serve the same function, even if no players are in any way sanctioned. It will set straight the historical record about baseball from 1994 until 2005 by providing evidence and revealing the "truth" as to who was doing what with respect to performance-enhancing drugs. This record enables us to evaluate this era and decide what we should make of the records and accomplishments of the players and teams. This can affect how historians and fans think and write about the game and the players. It affects how writers place players of the era in historical discussions of all-time best players and teams. Perhaps it affects how individual Hall-of-Fame voters cast their ballots. It may have the effect of placing an unofficial asterisk by some records, so long as it is not official. If the Commission gives us that, even if no one is punished, maybe it will not have been a meaningless exercise. Column on Barry Bonds Indictment

Howard noted the Bonds indictment yesterday, and last night I published a column on Sports on the topic.

I examine the grand jury indictment, prospects for a plea bargain, and how, if there is a trial, Bonds might attempt to show that he did not commit perjury or obstruction of justice.

I hope you have a chance to read the piece.

Thursday, November 15, 2007
Bonds Indicted . . .

on perjury and obstruction of justice. ESPN reports here; a Bay-area TV station reports here.

Update: Thursday, 6:00 p.m. C.S.T.: The indictment is here.

Update # 2: Friday, 7:30 a.m. C.S.T.:

Mike Dorf on why
any conviction, standing alone without reference to the subject of the conviction (that Bonds used performance-enhancing drugs) should not be enough to keep him out of the Hall of Fame or to warrant stripping him of the career home run record.

Toledo Law Grad Chosen as Executive Director of NHLPA

I'm a few weeks late on this, but I wanted to extend my congratulations to Paul V. Kelly, a graduate of the University of Toledo College of Law, who last month was selected as the Executive Director of the National Hockey League Players Association. The NHLPA's press releases are here and here.

Kelly attended Boston College before earning his law degree at Toledo. He practiced law at the Boston firms of Ropes & Gray, Foley Hoag, and his own firm, Kelly, Libby & Hoopes. He also served as an Assistant U.S. Attorney, which seems to be where he got his first exposure to professional hockey. Kelly was the lead prosecutor in the federal case against Alan Eagleson, the disgraced former Executive Director of the union.

Kelly's NHL experience also includes representation of players -- including Marty McSorley -- in civil and criminal matters.

Kelly will no doubt play an important role in shaping the future of the NHL, helping decide whether the league remains relevant and recovers from the labor strife of the last decade.

Wednesday, November 14, 2007
What Constitutes Collusion?

The free agent "meat market" officially began at midnight on Monday. Sean Gregory has an interesting piece in today's edition of Time Magazine on the announcement made by the MLBPA late last week that it is investigating possible collusive activity during the general managers' meetings (A-Rod's Salary: Watching for Collusion). Gregory explains the impetus for the union's concern:

For one, during baseball's general managers' meetings in Orlando last week, Theo Epstein of the Boston Red Sox and Larry Beinfast of Florida Marlins introduced a new element to the gathering. The GMs assembled in one room and each stated what their off-season priorities were, and who might be available in trades. To the execs, it was an efficient way to horse-trade information that they typically would share in various time-consuming, one-on-one conversations. Some teams spoke in general terms, others got a little more specific, Major League Baseball insists it was not a conspiracy meeting.
Several press reports have also suggested that Commissioner Bud Selig — angry about both the scope of A-Rod's free agent demands and the timing of the opt-out from his New York Yankee contract (during the waning moments of this year's World Series, thus overshadowing the sport's signature event) — could be working the back rooms to keep A-Rod from scoring another pay raise.
And when talking about A-Rod's hefty demands, outgoing Atlanta Braves general manager John Schuerholz told a radio interviewer: "I think it's obnoxious. I admire and respect Alex Rodriguez as much as any ballplayer that has played the game. But for someone to suggest that this is a valid salary level for a professional athlete, no matter what kind of voodoo economics they can do in analyzing the books of MLB, it's absolutely asinine. It only takes one team to have the wherewithal with that player, and then that player and his representatives think 'Well, this is what the market value is.' It's crazy, and so is that level of compensation." Was Schuerholz, who will relinquish his GM duties but stay on as Atlanta's team president, just taking a parting shot at Rodriguez? Or was he sending his colleagues a not-so-subtle signal to stick it to A-Rod. At least one National League GM, who did not want to be identified, expressed support for Schuerholz's sentiments. "We're about team building, not individual players," he says. "The Texas Rangers could talk volumes about how that [deal] worked out."
So what constitutes collusion? Gregory interviewed me for the story, and he and I spoke about this issue at length. The prohibition on collusion regarding free agents arises from the collective bargaining agreement, which simply provides: "The utilization or non-utilization of rights under this an individual matter to be determined solely by each Player and each Club for his or its own benefit. Players shall not act in concert with other Players and Clubs shall not act in concert with other Clubs."

I think when you have all of the general managers together in one location in meetings at the same time in which the highest paid and most sought after free agent is available in the market, there are bound to be concerns regarding collusion. To establish a collusion claim, however, it would require fairly strong evidence that two or more teams were discussing in specific terms how much they would be willing to spend on a particular player or players generally. Discussions regarding team philosophies, priorities and overall objectives do not rise to the level of collusion. But there is somewhat of a thin line between information that teams can and cannot discuss, and it can also turn on which particular teams are having the discussions. Suppose one team says to another, "we're not in the market for what A-Rod wants". If the Pirates say it to the Devil Rays, it really isn't too concerning because neither team is in the market for A-Rod. The analysis obviously changes if the Yankees say it to the Red Sox.

In the collusion case from the mid 1980s that resulted in a $280M settlement in favor of the players, the arbitrator noted evidence that, during off-season management meetings, clubs were warned to exercise self-discipline in making operation decisions and to resist temptations to give in to unreasonable demands of players. Clubs were also warned that rash moves to add free agents in hopes of a pennant resulted in negative financial results for clubs. Also, club representatives stated their intent to avoid long-term contracts in response to a poll conducted by the commissioner, and the commissioner repeatedly expressed concerns regarding the financial commitment made by the clubs under "dumb" long-term contracts.

The arbitrator's decision establishes two important points about collusion. First, collusion doesn't require a "common agreement" among the clubs to suppress player salaries. The arbitration panel found that "the distillation of the message of these meetings" resulted in a situation by which the "right of the clubs to participate in the free agency provisions of the [CBA] no longer remained an individual matter to be determined solely for the benefit of each club." Second, the case demonstrates the important distinction between teams discussing in general terms their philosophies, priorities and overall objectives vs. more specific discussions regarding financial matters pertaining to the signing of free agents.

But what about when general managers make specific statements in the press regarding their intentions of not signing particular free agents? As Gregory puts it, was Schuerholz "sending his colleagues a not-so-subtle signal to stick it to A-Rod?" In other words, can the media be used as a vehicle to engage in collusion? We know that collusion can fall short of an agreement to suppress salaries. Where is the line drawn between permissible team discussions and illegal collusion?

Monday, November 12, 2007 Column on Legal Implications of the Mitchell Report

I have a new column on Sports entitled "Implications of the Mitchell Report."

It evaluates the private nature of the report and examines potential outcomes for those who are named in it, including potential punishment by Commissioner Bud Selig (a topic Rick blogged about here), having their contracts attempted to be voided by their teams, and, if any players are erroneously named, their potential to bring libel lawsuits against Major League Baseball.

I hope you have a chance to read the piece.

Sunday, November 11, 2007
Sunday Links

Catching up on some links that I had hoped to blog about during the past month:

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Jason Friedman of the Houston Press has an extensive and provocative look at Houston Rockets general manager Daryl Morey, a 35-year-old with expertise on the intersection between basketball, statistics, and economics and who taught at the Massachusetts Institute of Technology while previously working for Danny Ainge and the Boston Celtics. I spoke with Jason for his story, as I know Daryl and think the world of his abilities. He's phenomenally bright and possesses outstanding insight on basketball. The story examines how Daryl will be using statistical analysis as one tool in evaluating basketball talent. I suspects the Rockets--which are currently tied in first place in the Western Conference--are in for some great years ahead.

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Aditi Kinkhabwala, a columnist for (archive) and beat writer for The Record, has a couple of great pieces on her blog, Scarlet Knights Newzer, regarding controversial comments by Rutgers University English professor William C. Dowling, who has criticized his school's sports program because, in his words,
If you were giving the scholarship to an intellectually brilliant kid who happens to play a sport, that's fine. But they give it to a functional illiterate who can't read a cereal box, and then make him spend 50 hours a week on physical skills. That's not opportunity. If you want to give financial help to minorities, go find the ones who are at the library after school.
Aditi has two great pieces in response to Professor Dowling's remarks. She interviewed me for her second one and asked about whether Professor Dowling may have committed slander (I opined that he did not--for more, click here).

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The Sports Practice Group at Thelen Reid Brown Raysman & Steiner LLP is now publishing an excellent monthly newsletter on sports law issues. One article discusses legal issues of fantasy sports and another examines AT&T and NASCAR settling a logo dispute. The entire first issue is available at this link. For more information, feel free to contact Rob Freeman (chair of the Group) or Peter Scher (an associate in the Group).

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Nate Jones, a 1L at UCLA Law and author of the Jones on the NBA blog, tells me about what should be a terrific event hosted by the UCLA Sports Law Federation this Wednesday:
Leigh Steinberg: A Legend in the Game

Join the Sports Law Federation as we host legendary sports agent, Leigh Steinberg, on Wednesday, November 14th, Rm. 1430 at 6pm. During the course of his 30+ year career, Mr. Steinberg has negotiated over $1 billion in contracts, representing athletes, including NFL quarterbacks Ben Roethlisberger, Matt Leinart, Troy Aikman, Steve Young and Warren Moon.

Mr. Steinberg will discuss the relevance of the law to his work as a sports agent as well as the future of representing top athletes.

Come meet the inspiration behind the hit film, Jerry Maguire, and a sports agent hall of famer. Refreshments will be served!
If you are in the LA area and would like to attend, just give Nate an e-mail and he will set you up.

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Keeping the California theme going, Tracie Parry-Bowers, the chief articles editor for the Loyola of Los Angeles Entertainment Law Review has let me know about her publication accepting article submissions for its next two issues. This journal publishes articles on entertainment, sports, and communications law and is well-regarded. For more information, click here.

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Andrew Smith, the symposium chairman for the Entertainment and Sports Law Society of St. John's University School of Law and to whom I've offered insight for his sports law paper on fixing the NBA lottery system, emails me about his organization's plans for what should be an intriguing symposium in February:
I am currently organizing our first, and hopefully annual, Entertainment & Sports Law Symposium for the spring. We are aiming for mid-February and it will be a joint symposium for both sports and entertainment. We have finalized the general topic of "Legal Issues Facing the NBA" with sub-topics including the growing influx of foreign players, the potential of a European division, also the Tim Donaghy scandal, and ways to remedy any gambling concerns.

I am in the process of contacting potential speakers in the New York area. I was wondering if at all possible you could post a link on your website to our new blog where your readers could learn about our symposium and contact me if they are interested in attending or speaking. Our address is
This event sounds very interesting and if my schedule permits, I hope to be a panelist or moderator at it. Please contact Andrew by e-mail if you have an interest in attending or speaking at the event.

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Thanks to Juiced Sports for naming Sports Law Blog one of the top 50 "most influential sports bloggers" (okay, we're ranked 49, but we've made the top 100 list).

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Hope you all have enjoyed the weekend. I had the good fortune of watching the annual flag football tournament at Mississippi College School of Law on Saturday. The 3Ls dominated the competition. It seems the 1Ls are spending more time studying than practicing football, and I suspect that's a good thing.

Friday, November 09, 2007
Professor Alfred Yen on Major League Baseball and Digital Rights Management

Over on, Boston College Law School Professor Alfred Yen has authored a great piece on problems with MLB's digital downloads.

Here is an excerpt:
Fans who downloaded complete games from MLB had to log in through an MLB web page to verify that the download in question was being viewed on the appropriate, licensed computer. MLB has now removed this page, making those downloads unviewable. Apparently MLB does not know when the problem will be fixed. This means that those who purchased the downloads have been denied the benefits of their bargain.

This illustrates one of the most significant problems with DRM. Consumers who can’t view their downloads have no effective self-help. Circumventing DRM controlling access to a copyrighted work is generally illegal. Even if there were some legal basis for circumvention, consumers can’t accomplish it easily because it’s also illegal to sell technology that makes circumvention possible.
For the rest of his piece, click here.

Wednesday, November 07, 2007

One of my interests in this arena is the quasi-legal nature of the rules and regulations involved in sports, sports teams and leagues, and sports management. So I wanted to comment on this week's sports/law stupidity.

Don Shula, the coach of the 1972 Miami Dolphins, the last NFL team to go undefeated, now argues that if the 2007 Patriots go undefeated (the Pats are 9-0 and far above everyone else in the league), an asterisk should be placed on their record, in light of the finding that the Patriots violated league rules in an early-season game by videotaping the opposing team's sideline to steal signals. This is the latest effort to impose an asterisk to taint and diminish what otherwise would be a record performance. Earlier this month, the man who caught the ball from Barry Bonds' record-breaking 756th career home run announced that he would brand the ball with an asterisk and donate it to the National Baseball Hall of Fame. The asterisk would suggest that Bonds' record is tainted by his alleged steroid use--steroid use that Bonds continues to deny and that Major League Baseball never has found, although other sources document his alleged use.

Can we please stop with the asterisks already?

The first alleged asterisk to denote-but-diminish a record was not, in fact, an asterisk (despite Billy Crystal's version of baseball history). In 1961, when Roger Maris hit 61 home runs to break Babe Ruth's single-season record of 60, Commissioner Ford Frick ordered that official record books would celebrate two marks--Maris for 61 in 162 games, Ruth for 60 in 154 games (Maris hit only 59 in his first 154 games). There never was never an asterisk next to Maris' record; Major League Baseball just decided to keep two records and have two official record-holders, based on the different rules (the length of season) under which the players performed and the records were set. Now this was, indeed, an attempt to diminish Maris' achievement--or more accurately to keep the immortal Ruth at the top of the record book. And it was pretty stupid, as indicated by the fact that MLB changed the books in 1991 to establish one single-season record. But there was at least some arguable logical basis for having two records, given the different rules and conditions.

Shula and the baseball people are suggesting something different: Name one record holder but put an official asterisk by his name to denote something amiss about the record, thus quasi-officially keeping the prior record holder at the top of the books. And that is even dumber than Frick's idea of two official records. If there ever is a finding that Bonds cheated, that might justify taking his name out of the record book. This is, for example, the actions of the Tour de France to strip Floyd Landis of his 2006 victory when his failed doping test was confirmed; college teams similarly are retroactively stripped of victories and championships based on findings of past cheating.

As to the Patriots, if they broke the rules to achieve a perfect season, strip them of their victories. But this does not appear appropriate in this case. There was a league finding that they broke the rules in one game and they were punished--but not with a forfeit of the game. The NFL obviously determined that their conduct did not affect the outcome of that game and did not warrant a forfeit, which would deprive them of that perfect season. Absent that, there is nothing "tainted" about the achievement, if it happens.

The record books should reflect top achievements consistent with applicable rules. . If someone achieves a record through unlawful activity, is found to have engaged in that unlawful activity, and is to be punished for that unlawful activity, such punishment can (and should) include the loss of records and titles. With an explanation, of course. Erasing players, teams, and achievements from history is itself a dangerous proposition--probably more dangerous than having "tainted" record holders.

But it is ridiculous to take this half-measure of an official asterisk, while leaving the record and record-holder in place based on a suspicion of relevant wrongdoing or, as in Shula's case, sour grapes (the '72 Dolphins are notorious for the vigor with which they guard their achievement). And it flies in the face of the normal approach of finding a violation of rules, then imposing a meaningful and relevant punishment.

(Cross-Posted on PrawfsBlawg, where I am guesting this week)

Update, Thursday, 3 p.m. C.S.T.:

A commenter at Prawfs pointed me here: Shula went on Mike & Mike and said he would not argue for an asterisk and that if the Pats run the table, they are the best team. No indication from the story as to why Shula changed his mind about this.

This Week's Union News

This week's edition of Street & Smith's Sports Business Journal contains two interesting developments on the labor front:

First, Liz Mullen (11/05/07, NHL players give approval to new union constitution) reports that NHLPA members last week approved a new union constitution that eliminates the executive committee of players, which had so much power during the 2004-05 NHL lockout. The union will now be governed by 30 player representatives and each team will have an equal vote. According to NHL player Eric Lindros, “This new document ensures that the players have control over their union and have the full ability to govern themselves.”

Second, Dan Kaplan and Mullen (11/5/07, Debt vote prompts union collusion inquiry) report that last week the NFLPA launched an investigation into whether the NFL’s decision to lower the debt ceiling of its 32 clubs constitutes collusion to reduce competition for players or players’ salaries. Last month, NFL owners voted to lower the debt ceiling (how much money a team can borrow) by $30 million, which reduces the debt ceiling to $120 million from $150 million. At the same time the debt ceiling is being lowered, the league says it is planning to cut $1 billion of league and team debt over the next three years. Commissioner Roger Goodell characterized the move as a prudent business decision in reaction to turbulent credit markets. According to NFL spokesman Brian McCarthy, “The decision was motivated by several factors, principally relating to current credit market conditions, the uncertain economic environment, the prospect of slower growth and recent significant increases in leaguewide debt levels. It’s consistent with our generally conservative approach to debt and debt policy.” However, NFLPA executive director Gene Upshaw and union outside counsel Jeffrey Kessler expressed concern that lowering the debt ceiling could have a chilling effect on team spending for players. Kessler noted that clubs frequently finance player compensation and signing bonuses with debt.

Monday, November 05, 2007
Court Denies New York Rangers' Motion for Preliminary Injunction in Internet Rights Case

On Friday November 2, Judge Loretta Preska of the Southern District of New York denied the New York Rangers motion for a preliminary injunction against what the Rangers alleged were anticompetitive practices by National Hockey League ("NHL") clubs in centrally controlling each of the NHL clubs' websites. I had previously blogged about this case here and here.

According to the court's recent opinion, the Rangers failed to meet the Second Circuit standard to prevail on a motion for a preliminary injunction, which requires that a moving party establish that "(1) absent such relief, it will suffer irreparable injury; and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the moving party."

In reviewing the case's merits, the court ruled that the NHL's Internet Regulations, as business rules implemented by a joint venture, require full Rule of Reason analysis under Section One of the Sherman Act, and as a result, the New York Rangers "failed to carry its initial burden of showing a prima facie case of an anticompetitive restraint," as well as that "[i]n the alternative ... [the NHL] has shown offsetting procompetitive benefits."

In recognizing the potential pro-competitive effects of the NHL policy, the court pointed specifically to that "[t]he common technology platform [required by the Internet policy] will enable ... sponsors and advertisers to reduce transaction costs by negotiating centrally with the League."

Overall, this opinion was brilliantly reasoned. Importantly, Judge Preska explained repeatedly that the NHL is a "joint venture" capable of illegally colluding under Section One of the Sherman Act, but that, upon preliminary review, the new NHL Internet Regulations likely had sufficient pro-competitive effects to withstand such scrutiny.

Thursday, November 01, 2007
Baseball's Next Antitrust/Gender Discrimination Nightmare?

Ria Cortesio, pro baseball's only female umpire, was fired earlier this week. Cortesio -- the first woman to umpire a game involving major league teams in twenty years (an exhibition game this year between the Cubs and Diamondbacks) -- was the top-rated double-A umpire at the beginning of this year. Apparently, there were no vacancies in triple A, and after 9 years at the double-A level Cortesio's time was up (her ranking also apparently dropped this year). Her dream of being the first woman to call a regular season major league game appears dead. Mike blogged about Cortesio earlier this year.

Cortesio has not yet decided whether to file a lawsuit, but seems to be considering it.

Pam Postema, a triple A umpire fired in 1989, did sue baseball a few years back after she was fired. Postema's claims included gender discrimination and an antitrust claim (under New York common law). No doubt to the chagrin of MLB, the court did not dismiss the antitrust claims on the basis of baseball's supposed antitrust exemption. See 799 F.Supp. 1475 (SDNY 1992). Instead, the court reasoned that the Supreme Court's last opinion on baseball's antitrust exemption, Flood v. Kuhn, limited the exemption to league structure and the reserve system.

The case settled out of court, and Postema agreed not to disclose the terms of the settlement. It would be safe to infer that she got paid big time. But what motivated the league to settle? Was it the strength of her underlying gender discrimination claim? (Although Postema was the victim of considerable abuse during her time as an umpire, attributing that abuse to the major leagues, which were not her employer, might have been tough). My view is that baseball was far more worried about the antitrust claim. Although Postema might not have won, her case could have generated an appellate decision on the scope of baseball's antitrust exemption and might even have found its way up to the Supreme Court. The fate of the exemption at that level would likely be in doubt. Baseball probably felt it wasn't worth the risk.

Should Cortesio choose to sue, she would be well advised to hire Postema's lawyer and include an antitrust claim in her suit.

Thanks to the some of the students in my University of Utah sports law class for bringing this to my attention in our discussion of Pam Postema's case today.