Sports Law Blog
All things legal relating
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Wednesday, July 30, 2008
Fantasy Leagues Now Profiting from the Likenesses of College Athletes

Of course, I couldn't withhold my thoughts on today's press release that has decided to make millions using the names and performance statistics of college football and basketball players in a fantasy league game without paying for it. There are a couple of points in the press release that I need to address:

1. A fantasy college game has never been widely accepted or attempted before because of a reluctance to utilize anything but broad signifiers in identifying college athletes. had previously developed a game using generic terms including only a team and a position, like "SYRACUSE RB" and "MICHIGAN WR," instead of players' names. But it never caught on with users, due mainly to the disconnect between the robotic names and the fantasy audience, according to senior vice president and general manager Jason Kint.

Yeah. No kidding! You know why it never caught on with users? Because the game only has value if you use their names!!! But I suppose we can keep pretending that players don't have a right of publicity because "fantasy leagues only use their stats which are in the public domain." What a joke.

2. National Collegiate Athletic Association spokesman Bob Williams says that the NCAA did send a letter to CBS informing them that their bylaws were being violated by using player likenesses in the game. But he adds that because of the added exposure fantasy sports can bring the student-athlete, the NCAA does not intend to stand in the way of the fantasy game for now. "We are concerned with protecting the amateur status of the student athlete," Mr. Williams says, but he also believes that the bylaws, which were enacted "before new media," do not properly address a situation like this. Still, he warns that NCAA lawyers will be watching closely.

Umm,....o.k.,....yeah. Let me try to break this down:

a. The NCAA says its bylaws are being violated because player likenesses are in fact being used.

b. But, the NCAA says it is going to allow the violation to occur, for now, because of the added exposure fantasy leagues bring the student-athlete [which is apparently a good thing].

c. But wait a minute, the NCAA says it is concerned about "protecting" the student-athlete from this added exposure. [If you're totally confused at this point, wait, it gets better.]

d. The NCAA says it can't do anything about fantasy leagues because the bylaws don't address this situation. [Go back and read a. and b. again.]

e. The NCAA says its lawyers will be watching closely. I'm not quite sure what the lawyers will be watching, except maybe the continued exploitation of college athletes.

Tim Donaghy Sentencing

Much has been written about yesterday's sentencing of disgraced former NBA referee Tim Donaghy to 15 months in prison. Here are some stories that may be of interest:

* I wrote a piece on on the sentencing. My thanks to the folks on Celtics Blog for their nice words about it.

* Jeffrey Standen of The Sports Law Professor weighs in as well.

* And so does Lester Munson of

* Mark Fass of the New York Law Journal (by way of has an intriguing take on the surprising background of the federal charges that were used to prosecute Donaghy.

* An unrelated but really interesting piece by Darren Heitner of Sports Agent Blog on basketball agents using overseas employment opportunities as leverage in negotiations with NBA teams.

* Another unrelated but really interesting piece by Marc Isenberg of Money Players that seeks to debunk educational arguments in favor star basketball players attending college and then going pro. He notes that Latrell Sprewell and Jason Caffey each spent four years in college only to make some bad life decisions.

Tuesday, July 29, 2008
IOC lifts Iraq's Olympic Suspension

Last week, Aaron Zelinsky argued that the IOC should reverse its ban on Iraqi players from the Olympics. Today, the IOC did just that (though only two of the seven banned athletes remain eligible to participate in the Olympics, meaning the other five won't benefit from the IOC's reversal).

Monday, July 28, 2008
Duke Lacrosse at SEALS

Tomorrow I will be at SEALS, hosting and moderating a panel titled The Phases and Faces of the Duke Lacrosse Controversy. This will be a moderated conversation about the multiple facets, details, and issues of this still-ongoing legal controversy. Panelists include KC Johnson of Brooklyn College (author of a bestselling book on the case), James Coleman of Duke Law (who chaired a University committee that investigated the case), Michael Gerhardt of UNC Law, Lyrissa Lidsky of Florida Law, and Angela Davis of American/Washington College.

I hope to have an audio file to post here later in the week and the proceedings will be published in the Seton Hall Journal of Sports and Entertainment. I hope to write more about the many and varied issues implicated in this case. And I think it would make an interesting single-topic seminar to explore the multiple angles raised by one controversy, akin to the class on Wal-Mart.

If you are at SEALS, I hope you can check the panel out.

Saturday, July 26, 2008
Minor League Pitcher Charged With Felonious Assault in Brawl

The AP reports that Peoria Chiefs pitcher Julio Castillo will be charged with felonious assault in the aftermath of a brawl between the Chiefs and the Dayton Dragons. Castillo has been arraigned and ordered to give up his passport.

During a bench-clearing brawl (which you can view in its lengthy entirety here or here, Castillo seems to have thrown a baseball towards a member of the opposing team, or perhaps (as some reports suggested, but as the video seems to contradict) towards the opposing team's dugout. The baseball went into the stands, however, and struck 44-year-old fan Chris McCarthy.

In Ohio, the crime of "felonious assault" requires that a person knowingly cause "serious physical harm to another" or knowingly "cause or attempt to cause physical harm to another . . . by means of a deadly weapon or dangerous ordnance." The fan here was released from the hospital that night, so it would not seem that we have a case of "serious" physical harm. Instead, what the prosecutor must be thinking is that a baseball, at least in the hands of a single-A pitcher, constitutes a deadly weapon.

"This charge is a result of outlandish and inexcusable conduct by a professional baseball player," Montgomery County Prosecutor Mathias Heck Jr. said in a statement.
Perhaps true. But there are numerous examples of inexcusable conduct during bench-clearing brawls that don't lead to criminal charges. What is obviously different here is that a fan got bloodied.

For a discussion of criminal liability for on-field behavior, see Greg's posts here and here.

Friday, July 25, 2008
Testimony of Expert Witness for Hamburg Almost Leads to a Mistrial

SportsBusiness Journal's Daniel Kaplan reports that during the ATP-Hamburg trial yesterday, one of Hamburg's expert witnesses, sports economist Andrew Zimbalist, took with him to the witness stand a 17-page document on which he apparently based his testimony, even though witnesses are not allowed to bring notes up to the stand (Zimbalist Testimony Almost Results in Mistrial in ATP-Hamburg Trial, 7/24/08, subscription only). His appearance was halted once it was noticed, after 90 minutes of testimony. According to Kaplan, a transcript indicates that Hamburg lawyer Rob MacGill informed the judge that he had told Zimbalist yesterday morning not to bring the outline and that the outline was prepared in conjunction with MacGill.

There are two problems here. First, apparently the outline was not disclosed to ATP's counsel. Second, an expert witness' opinion must be his own opinion -- if he is testifying on the stand from the lawyer's outline, then he is merely parroting the lawyer's opinion. Kaplan notes that at one point during his testimony, Zimbalist corrected MacGill and asked him if he asked the right question. The ATP called for a mistrial and the judge dismissed the jury at noon, at least five hours early. The judge said he would consider striking the testimony from the record and told the lawyers after discussing the issue, “Well, I have seen it all.”

Who would have thought that an antitrust case could bring such Matlock-type excitement....

Thursday, July 24, 2008
Aaron Zelinsky's "Let Iraq Play"

We received an excellent submission from Aaron Zelinsky, a rising 2L at Yale Law School, concerning today's IOC decision to ban Iraq from Olympic participation.

* * *

Let Iraq Play

After months of public outcry, with the Olympics mere weeks away, the International Olympic Committee (IOC) took dramatic action. Its principled stand: banning seven Iraqi athletes from the 2008 Summer Games.

The IOC ban was unnecessary, counterproductive, and hypocritical. The IOC should reverse its decision and allow Iraq's seven Olympic athletes to compete.

The IOC banned the Iraqi delegation under section 28(9) of the Olympic Charter, which authorizes sanction when “any governmental or other body causes the activity of the [National Olympic Committee] or the making or expression of its will to be hampered.” Iraq's Olympic Crime: Prime Minister Maliki disbanded the Iraq National Olympic Committee in May and appointed an interim committee, alleging corruption and vote stealing.

The IOC ban is unnecessary. The Olympic Charter does not proscribe automatic suspension for governmental interference with a National Olympic Committee (NOC). Rather, section 28(9) declares that the IOC executive board “may take any appropriate decisions for the protection of the Olympic Movement in the country of an NOC.” The draconian club of disqualification is one the IOC wields voluntarily.

The IOC ban is counterproductive. Banning Iraq will hardly lead to the “protection of the Olympic Movement” in Iraq, as called for by the Olympic Charter. Rather, it will likely further discourage athletes and fans. The ban is particularly sad in light of the Cinderella-story of the 2004 Iraqi Olympic Soccer Team, which provided one of the few moments of national unity and hope during troubled times.

The IOC ban is hypocritical. The same body that proclaims the need to uphold the “principle of not wanting sports and politics to mix” allowed Uday Hussein to serve as the head of the Iraq National Olympic Committee during his father's dictatorial reign. On Uday's teams, athletic failure -- or early retirement -- was punished with whippings and torture, despite the IOC's commitment to “safeguarding the dignity of the individual.”

If the IOC were truly committed to individual dignity, it would allow the Iraqi athletes to compete, regardless of national bureaucratic squabbling. The IOC should reverse its unnecessary ban and let Iraq play.

Aaron Zelinsky is a member of the Yale Law School Class of 2010

IASL Congress on Sports Law

On November 28th and 29th, the International Association of Sports Law (IASL) will be hosting its 14th International Congress on Sports Law in Athens, Greece. Papers on various international sports law topics may be submitted, and selected papers will be announced at the Congress. Some selected papers will be published in the International Sports Law Review. The main theme of this year's Congress is "Sports Law: An Emerging Legal Order; Human Rights of Athletes".

Two Good Links

Eric McErlain of The Sporting News has an extensive article on Russia's nascent Kontinental Hockey League, which may soon rival the NHL in attracting top players, including those from Canada and the United States. Eric considers, among other points, the legal and economic significance of the lack of player transfer agreement between the NHL and the KHL.

JB of Celtics Blog and Celtics Stuff Live has a thoughtful article entitled "Zebraphobia Pt. II" on the NBA referee scandal. JB includes new empirical research on Scott Foster, the NBA referee who spoke often with Tim Donaghy, which suggests that Foster's officiated games had unusual scoring patterns.

Wednesday, July 23, 2008
Where's the Harm to the Consumer?

This week the ATP Tour is in court defending its recently-adopted scheduling format against Hamburg. A jury, who reportedly appears to possess very little knowledge of professional tennis, will soon determine whether the anticompetitive effects of the ATP's scheduling changes for 2009 outweigh its procompetitive effects. I have maintained the position that it is pretty much a given that the decisions of sport governing bodies, such as the ATP, PGA and LPGA, regarding scheduling of events, format of play and player ranking systems are necessarily going to impact third parties (e.g. tournaments like Hamburg that are not selected as one of the "elite tournaments"). Should these governing bodies be required to defend the reasonableness of their decisions in court each time some third party claims to be disadvantaged by one of their decisions? Even if the ATP wins this case, they had to spend gobs of time and resources proving that the scheduling change was reasonable and they will be subject to suit by the next disgruntled third party challenging a different rule or decision.

On the surface, the ATP-Hamburg case looks like a classic antitrust problem breaking every rule in the antitrust book -- Simply stated, you have producers of a product (tennis players) agreeing with certain distributors of the product (the tournament organizers) to place various geographic and supply restrictions on the production and distribution of that product. But when you go beyond the surface, the pertinent question for the jury in this case, as in any antitrust lawsuit, is not whether Hamburg has been harmed but whether the consumer has been harmed. Typically in other industries, these types of arrangements drive the price up and the quality down resulting in obvious harm to the consumer. But the ATP is not selling widgets. While I have no idea how the ATP's scheduling changes affect the price of tennis for the consumer, I can say fairly confidently that the quality of the tennis product is much better if the top players are playing against each other in a consolidated number of tournaments each year.

Bloomberg News editor John Helyar, the renowned author of The Lords of the Realm: The Real History of Baseball and co-author of Barbarians at the Gate, wrote an excellent column today discussing many of the problems currently confronting the sport of tennis (Tiger Woods's Knee Ends ATP's Federer-Nadal Dream). Helyar mentions the Hamburg suit and pinpoints what I believe to be a major hurdle for Hamburg, and that is demonstrating how the ATP's scheduling changes actually harm the consumer. Indeed, if anything they benefit the consumer:
The past two weeks make a good case study in the ATP's chronic problem: too many tournaments -- eight of them in seven countries in two weeks -- with too few stars. Casual fans can't make sense of it and can't sustain interest in it. Too much of a geographical challenge; too much of a "Where's Waldo'' aspect to it.
Moreover, all these scattered, simultaneous tournaments dilute the game's thin supply of stars and diffuse the sport's focus. Tennis needs more of its stars in the same tournaments -- hell, on the same continent would help.
The Rogers Cup gets the top players because it's one of nine ATP "Masters Series'' tournaments. These carry added weight in the ATP points system, which is used to determine which eight players make the rich ($4.45 million) season-ending Tennis Masters Cup. The ATP changes would build on that concept. The tour would mandate that top players compete in all the top-tier events, to be called the Masters 1000s. It would also create a more compelling second tier of tournaments, called Masters 500s and require that players compete in four of the 11 of them. So instead of players scattering to tournaments all over Europe following Wimbledon, more of them would be aggregated in one Masters 500 tournament in Hamburg. Suffice it to say, however, Hamburg is not honored.
If Hamburg is right in this case, it threatens the ATP's existence and could in fact ultimately destroy it. Is that good for tennis? And is that good for the consumer?

Tuesday, July 22, 2008
Top Twenty

Paul Caron of TaxProf released his ranking of the Top 35 law-prof-edited blogs, by visitors and page views. Sports Law Blog was number 20, with more than 304,000 visitors and more than 512,000 page views from June 2007 until June 2008.

Thanks to all of you for helping to make this site successful and fun.

NY Times Story on ATP Antitrust Lawsuit

Michael Brick of the New York Times interviews Geoff for a story today on the ATP lawsuit. The story is excerpted below.

* * *

The antitrust lawsuit in United States District Court promises to reveal financial arrangements of a plan known as Brave New World, an effort by the ATP Tour to reinvigorate the sport.

The jurors, selected from a group of three dozen candidates who displayed little awareness of professional tennis, listened attentively as lawyers for a German tournament promoter argued the legal backwaters of civil antitrust law.

“The ATP knew that if it controlled the player-services market, it controlled everything in tennis,” Robert D. MacGill [of Barnes & Thornburg], a lawyer for the Germans, said in his opening statement. “It’s as simple as if you don’t have players, you don’t have a tournament.”

A lawyer for the ATP Tour, Brad Ruskin [of Proskauer Rose], disputed those accusations. “What they’re asking for is special protections, and what they’re hypocritically complaining about in this case is the very types of rules, the very types of structures they have advocated,” he said.

In court documents, the German Tennis Federation has accused the ATP Tour of unfairly manipulating the control of star players to steer money to favored tournaments at the expense of promoters in Hamburg.

The Germans are seeking $77 million in damages. Financial damages in antitrust cases are often tripled.

The outcome of the trial, expected to last two weeks, will probably affect individual sports like golf and skiing that do not feature organized teams and collective bargaining agreements, experts said. The ATP comprises tournament promoters and players.

“This case is going to tell us a lot about how powerful these individual tour sponsors are going to be in the future,” Geoffrey Rapp, an associate professor of sports law and antitrust at the University of Toledo, said in a telephone interview.

* * *
For the rest of the story, click here.

Monday, July 21, 2008
Catching Up with Some Links

I've been meaning to post on these stories, hope you have a chance to check them out:

~ USA Today's Douglas Robson interviews Rick and me for his story on the ATP antitrust lawsuit, the trial for which began today in the U.S. District Court in Wilmington, Delaware.

~ The Tennessean's John Glennon examines the legal issues surrounding Nashville Predators' forward Alexander Radulov, who is signed to play for the Predators next season, but recently signed a three-year deal with Salavat Yulaev Ufa of Russia’s Continental Hockey League. The Predators' are weighing their legal options.

~ Jason Chung has a thought-provoking post on The Situationist on whether the Beijing Summer Olympics will bridge political differences between countries in conflict with one another.

~ I have a new column on Congress becoming more interested in the Tim Donaghy/NBA referee betting scandal in the wake of learning that Donaghy repeatedly called another referee, Scott Foster, before and after games which Donaghy bet on.

~ Darren Heitner of Sports Agent Blog has a really good piece on Brandon Jennings (photo above), the high school senior who's decided to skip college and go play in Italy, signing a multi-million, multi-year deal to play for Pallacanestro Virtus Roma. Marc Isenberg of Money Players also has a thoughtful piece on Jennings deciding to earn income for the required one-year following high school in order to be eligible for the NBA draft (Jennings will apparently stay in Italy for more than one year, which may in part explain why the Italian team was willing to pay him so much).

I've argued against the NBA's age limit many times--since 2005, eligibility for the NBA draft requires that an amateur player of American origin be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season must have passed from when he graduated from high school, or when he would have graduated from high school, and the NBA draft. Jennings, however, could be the start of a new trend where star players right out of high school go to Europe and make a lot of money and then later come back to the U.S. and be eligible for the NBA draft -- presumably with a lot of money already in the bank, much like many of the international players who now join the NBA (to illustrate: Knicks' 2008 first round pick Danilo Gallinari, who is 19-years old and has played pro basketball in Italy since he was 15, has already earned millions in both basketball income and endorsement income).

So imagine you are 18-years old and are an NBA prospect. What would sound better for one year (after which you would be eligible for the NBA draft):

1) earning a ton of money to play basketball in Rome or another European city; or

2) earning no money, but getting to live in the U.S. and enjoy the college experience while playing for Georgetown or Duke or the like?

I could see why some players would elect to stay in the U.S. Being the "big man on campus" plus being closer to home and closer to the U.S. media would have their advantages. But it must be tough to pass up all that money in Europe, especially given the ever-present risk of getting injured and no longer attracting the notice of NBA scouts. Plus living in Rome (or Barcelona or Athens etc.) would probably be a lot of fun and a good cultural experience.

Third Circuit Vacates 'Wardrobe Malfunction' Fine

In a long-awaited and hardly surprising ruling, a panel of the U.S. Court of Appeals for the Third Circuit threw out the Federal Communication Commission's $550,000 fine against CBS for the now-infamous Janet Jackson-Justin Timberlake breast-bearing (all 9/16 of a second) 2004 Super Bowl halftime show. In language echoing a Second Circuit ruling in FCC v. Fox over one year ago, this panel, concluded that the FCC's actions in imposing a fine for a fleeting incident was arbitrary and capricious. For the text of the ruling click here. [Before I go on, I want to give full disclosure: my wife works in the legal department of CBS, but was not involved in this litigation.]

It never ceases to amaze me how the Commission could make the arguments it made with a straight face. After 30 years of interpreting "indecency" as encompassing consistent patterns of conduct or language, the FCC argued that by February 1, 2004 (the date of the Halftime Show), a broadcaster in CBS’s position should have known that even isolated or fleeting indecent material in programming could be actionable." How could it? The official change in FCC's policy came a few weeks later on March 3rd.

Chief Judge Scirica, writing for the panel, slapped the FCC down for relying on a single sentence in a 2001 policy statement to justify the single, isolated event as indecent "standard", which noted that "[E]ven relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Noting that it took the sentence out of context, Judge Scirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines. Then, as if the court was lecturing a wayward student, it stated: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."

The court also addressed a secondary argument, that the indecency policies may differ between words and actions -- something never claimed by the commission. "In the nearly three decades between the Supreme Court’s ruling in [FCC v] Pacifica and CBS’s broadcast of the Halftime Show the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. Instead, the FCC consistently applied identical standards and engaged in
identical analyses when reviewing complaints of potential indecency whether the complaints were based on words or images," Judge Scirica stated. The court also pointed out to the enabling statute, 18 U.S.C. 1464, does not make any differentiation between words and actions.

To add more to the mix, the court stated that the arbitrariness of the standard were not enough to reject the fine, it noted that CBS should not be responsible for performers operating at a live event beyond its control. The FCC claimed vicarious liability under the doctrine of respondeat superior, but the court, properly questioned how could an employment law concept be applied to independent contractors under no control or supervision of CBS. After an exhaustive review of the question of whether federal law applies to this question, the court concluded that "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. . . " Therefore, the performers were considered independent contractors.

With the FCC v. Fox case scheduled for argument in the Supreme Court, I wonder if the FCC will seek a petition for certiorari in this case. If its does, there is a possibility for the court may consolidate both this case and the Fox case for determination next year.

One hopes that this indecency crusade may be rendered moot either by a Supreme Court ruling or a new FCC in the next administration.

Friday, July 18, 2008
New Sports Law Scholarship

Recently published scholarship:
Robert Ambrose, Note, The NFL makes it rain: through strict enforcement of its conduct policy, the NFL protects its integrity, wealth, and popularity, 34 WILLIAM MITCHELL LAW REVIEW 1069 (2008)

Robert M. Bernhard, Comment, MLS’ designated player rule: has David Beckham single-handedly destroyed Major League Soccer’s single-entity antitrust defense?, 18 MARQUETTE SPORTS LAW REVIEW 413 (2008)

Michael E. Buchwald, Comment, Sexual harassment in education and student athletics: a case for why Title IX sexual harassment jurisprudence should develop independently of Title VII, 67 MARYLAND LAW REVIEW 672 (2008)

Paul Caprara, Comment, Surf’s up: the implications of tort liability in the unregulated sport of surfing, 44 CALIFORNIA WESTERN LAW REVIEW 557 (2008)

Phyllis Coleman, Scuba diving buddies: rights, obligations, and liabilities, 20 U.S.F. MARITIME LAW JOURNAL 75 (2007-08)

Brian Craddock., Casenote, Signed, your coach: restricting speech in athletic recruiting in TSSAA v. Brentwood Academy, 59 Mercer L. Rev. 1027 (2008)

andré douglas pond cummings, Progress realized?: the continuing American Indian mascot quandary, 18 MARQUETTE SPORTS LAW REVIEW 309 (2008)

David J. Espin, Book review of Chris Lincoln, Playing the Game: Inside Athletic Recruiting in the Ivy League, 18 MARQUETTE SPORTS LAW REVIEW 445 (2008).

Stacey B. Evans, Note, Whose stats are they anyway? Analyzing the battle between Major League Baseball and fantasy game sites, 9 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 335 (2008)

Jeremy J. Geisel, Book review of Mark Fainaru-Wada and Lance Williams, Game of Shadows, 18 MARQUETTE SPORTS LAW REVIEW 437 (2008)

Aaron S. Glass, 2007 Annual Survey: Recent Developments in Sports Law, 18 MARQUETTE SPORTS LAW REVIEW 341 (2008)

Jeffrey P. Gleason, Comment, From Russia with love: the legal repercussions of the recruitment and contracting of foreign players in the National Hockey League, 56 BUFFALO LAW REVIEW 599 (2008)

Nathaniel Grow, A proper analysis of the National Football League under section one of the Sherman Act, 9 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 281 (2008)

Spencer H. Larche, Comment, Pink-shirting: should the NCAA consider a maternity and paternity waiver?, 18 MARQUETTE SPORTS LAW REVIEW 393-411 (2008).

Daniel J. Louis, Note, Nationally televised segregation: the NCAA’s inability to desegregate college football’s head coaching position, 9 RUTGERS RACE & THE LAW REVIEW 167 (2007)

Alfred Dennis Mathewson, A sports seminar with a free agent market exercise, 18 MARQUETTE SPORTS LAW REVIEW 337 (2008)

Michael J. Mellis, Internet piracy of live sports telecasts, 18 MARQUETTE SPORTS LAW REVIEW 259 (2008)

Jack N. E. Pitts, Jr., Comment, Why wait?: an antitrust analysis of the National Football League and National Basketball Association’s draft eligibility rules, 51 HOWARD LAW JOURNAL 433 (2008)

Ryan M. Rodenberg, Book review of Ward Farnsworth, The Legal Analyst: A Toolkit for Thinking About the Law, 18 MARQUETTE SPORTS LAW REVIEW 433 (2008)

C. Paul Rogers, The quest for number one in college football: the revised Bowl Championship Series, antitrust, and the winner take all syndrome, 18 MARQUETTE SPORTS LAW REVIEW 285 (2008)

Martin M. Tomlinson, The commissioner’s new clothes: the myth of Major League Baseball’s antitrust exemption, 20 ST. THOMAS LAW REVIEW 255 (2008)


Thursday, July 17, 2008
Max Mosley's S&M Escape Leads to Privacy Lawsuit

You have to give Max Mosley, the President of the Federation Internationale de l'Automobile (FIA), credit for fighting back. After secretly-recorded videos revealed him in a sado-masochistic role-play with five women (paid about $5,000 in cash for a five-hour session), he has decided to sue and hold on to his position at the helm of the organization.

The tape was given to "News of the World" an English tabloid newspaper which makes its business publishing gossip and celebrity stories. According to the Sydney (Australia) Daily Herald, the week before its Mosley story, the News Of The World published photographs of a Premier League football club manager indulging in consensual sex with an adult woman six years earlier. The Mosley video showed him counting in German — “Eins! Zwei! Drei! Vier! Funf!” — as he used a leather strap to lash one of the women. “She needs more of ze punishment!” he cried in German-accented English. One woman appeared to search his hair for lice while another called off items on an inspection list. Mr. Mosley, naked, was bound face-down and lashed more than 20 times. More background is found in the New York Times article here. One of the women had a hidden camera and did the taping. The News of the World article is found here and is worth a read to put the case into context. The video is found here.

The FIA is the international governing body for international motorsports, including Formula-1 racing. Like many leads of international sports organizations, Mosley wields considerable power. Since there are no team owners or players representatives to create and checks and balances system, Mosley and others in his position often have control over sponsorships, schedules and sanctions (although there is an appeals process in the FIA rules). Also, like many of his brethren in other such organizations, he is not universally loved and lives baronially. Commuting in the FIA's £15million executive jet between his homes in London and Monaco, is not going to make him a man of the common folk.

That could be one reason that the video resonated strong reactions by the larger participants. Shortly after it was broadcast (portions available on the Internet), four of FIA's leading participants --Mercedes-Benz, BMW, Toyota and Honda - demanded his removal. Also F.I.A.-national governing such as the American Automobile Association and its German counterpart, sought his exit. It is natural that German auto makers and organizations would want him out, given their historical issues. However, another reason - family background - looms large over this issue. Mosley is the son of Sir Oswald Mosley and Diana Mitford, two card-carrying fascists (he headed the British Union of Fascists) and Hitler admirers who were marred in the dictator's presence. Although it may be unfair to have to carry this baggage, it is part of his identity. Even though he may not carry the views of his parents, an S&M video of allegedly "Nazi-type" activities casts a wide shadow over him.

Mosley fought back by retaining his position and control (his term ends next year) with the help of smaller national bodies. Then he filed a lawsuit against the newspaper based on violation of his privacy rights. The case is currently being heard in London. An earlier attempt at a prior restraint against the newspaper to prevent distribution of the video was defeated, since it was already widely available. However, things seems to be going Mosley's way during the trial. The woman (identified as "Woman E") failed to testify because of her "emotional and mental state." The other women denied that the ritual was "Nazi" refuting the lurid tabloid headline by the News of the World (and other tabloids, to be sure). I will leave it to readers to decide the level of Nazism found in the activity.

English law is more sympathetic to privacy claims by public figures than in the United States, which gives more protection to the press under the First Amendment. Yet, he could win here as well, although the First Amendment creates a more difficult barrier. In the United States, a case could be brought on one of two privacy claims, intrusion or embarrassing private facts. Intrusion requires that the plaintiff have a reasonable expectation of seclusion and that this seclusion is intentionally invaded in a manner highly offensive to a reasonable person. In the U.S., this is a normally a jury question, but many cases involve non-public figures. Technically, a public figure (such as Mosley) is treated the same as a non-public figure, but given his status and family background, a jury may not be as sympathetic.

Embarrassing private facts concerns the publication of truthful information concerning the private life of a person that would be both highly offensive to a reasonable person and not of legitimate public concern is an invasion of privacy in a number of states. Liability often is determined by how the information was obtained and its newsworthiness. Here, too, a jury would decide whether Mosley's notoriety outweighs the private activity. But the issue of newsworthiness comes to play. Is this so newsworthy as to trump those rights? It would be an crucial question.

The ruling should come down quite soon in the Mosley case and a number of articles I read cite legal experts who think it could set an important precedent. However, in addition to the fascinating law questions (I can't hardly wait to make this a moot court case for my class), there are ethical and business issues as well. Is all this relevant to Mosley's role at FIA? Or, given its high-profile, should Mosley be dismissed for such conduct, if it would hurt the business of auto racing and harm his relationship with sponsors and affiliates? And if so, what damages should News of the World pay?

Saturday, July 12, 2008
Final thoughts on WVU v. Rodriguez

So WVU v. Rodriguez ends (as most cases do) with the whimper of settlement. I want to mention three significant and potentially lasting lessons and questions from the case.

The importance of forum selection

WVU filed suit in December 2007 and the case settled in July 2008, meaning it was alive for just over six months. And a big chunk of that time was spent fighting over where the case was going to be litigated and among what parties. Rodriguez removed the case to federal court on the basis of diversity jurisdiction but, on WVU’s motion, the court remanded to state court because there was no federal jurisdiction.

The fight over federal jurisdiction was a great lesson in the minutae of diversity jurisdiction, which I wrote about at the time. These include the unique treatment of States as not being citizens; the intensely fact-bound nature of the inquiry into an individual’s citizenship, notably the question of how quickly a person can change his citizenship from one state to another and how courts should determine citizenship; the allocations of cases among different parts of the federal juriciary; and some limitations on unadorned concern for “local bias” as a basis for pushing cases into federal court. As I wrote then, it is hard to imagine a bigger example of local bias than the former football coach of the flagship public university having to litigate against the State itself in state court. But the diversity rules keep this case in state court. I will continue to use the materials from this case to teach removal and diversity.

There also is reason to believe that Rodriguez’s lawyers did not thoroughly research the facts or law prior to removing, always a big no-no. They did not have a good factual record to show that Rodriguez had successfully changed his citizenship from West Virginia to Michigan at the time the lawsuit was filed; he and his family clearly were mid-move at the time. His lawyers also seemed to have assumed WVU’s status as a citizen, rather than as an arm of the state. Ironically, these lawyers previously had represented WVU in litigation and had argued the university could not be sued in federal district court on diversity precisely because it was the state and not a citizen. In moving to remand, WVU also moved for sanctions against the lawyers based on this past representation, although the court denied that motion.

Is settlement a good thing?

More than thirty years ago, Owen Fiss criticized the modern judicial preference for settlement as a method of dispute resolution, arguing that it deprived courts of the opportunity to give meaning to public constitutional values by identifying, elaborating, and expounding on those values. And it deprived the public of the benefit of judicial exegesis on constitutional meaning and values, particularly as that guides future real-world conduct. Fiss focused on settlement in constitutional cases, but the point could be made for all litigation—settlement deprives courts of the chance to establish and elaborate on legal rules and principles and deprives future actors of the benefit of clearer legal rules.

One might make that complaint about the settlement in Rodriguez, a case that had been shaping up as a test case of sorts. How mobile are college football and basketball coaches under long-term contracts? How much leeway do schools have to use steep liquidated damages clauses as a way to at least slow coaches down or make other schools hesitant to hire them? How do schools raid coaches? Is a $ 4 million buyout provision so out of line with the actual damages WVU suffered as to be an unreasonable, and unenforceable, penalty? Did WVU improperly strong-arm Rodriguez into signing the contract with that buyout provision? Was there an under-the-table agreement not to enforce it? Did WVU abide by its contractual obligations to Rodriguez to sink substantial resources into things such as facilities and assistant coaches? When and how did Michigan pursue Rodriguez as its coach? We never found out.

Reading the tea leaves of the settlement

It generally is a bad idea to read anything into a settlement; parties settle for many reasons, usually upon balancing the strength of their case against the cost of litigation, as well as taking into account (as Rodriguez likely did) the value of “moving on.” But can this settlement give any guidance for future clashes between coaches and their former schools and attempts to enforce similar provisions? I find it interesting that WVU will receive the full $ 4 million; the settlement did not compromise on the amount. Back in January, Rodriguez made a $ 1.5 million settlement offer, which the University rejected. The ultimate compromise was over who pays (Rodriguez will pay $ 1.5 million, the University of Michigan $ 2.5 million) and the payment plan (Rodriguez makes three annual installments of $ 500K). This suggests that such a steep buyout clause, even one largely divorced from any real damage suffered by the school, will be enforceable. It suggests that there were no under-the-table agreements beyond what was in the contract and that Rodriguez did not, in fact, sign under duress. It seems to me that if WVU were worried at all about whether its conduct made the buyout less than fully enforceable, it would have given up something monetary.

I would expect that we will begin to see similar multi-million-dollar provisions become the norm in coaching contracts. I also would expect to see payment of all or part of the buyout as a negotiating point with schools looking to hire coaches away from other schools. So, to the extent this was a test case on coaches’ mobility, we did not get a judicial determination on the issue, but we did get a settlement that offers some strong hints.

Cross-Posted at WVU v. Rodriguez: The Legal Perspective

Friday, July 11, 2008
Boston Globe Feature Article on Marvin Miller

Stan Grossfeld of the Boston Globe has an excellent feature today on Marvin Miller, the first executive director of the Major League Baseball Players Association (he ran it from 1966 to 1982). Miller, 91, explains why he doesn't want to be in baseball's Hall of Fame. Here's an excerpt from Grossfeld's piece, entitled "A Reserved Clause".

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After getting overlooked in 2003 and 2007 for election and getting passed by on three Veterans Committee votes, Miller recently wrote a letter to the Baseball Writers Association of America asking them to keep his name off subsequent ballots. Even when he's dead.

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He calls the institution "a crock."

He wrote recently, "I find myself unwilling to contemplate one more rigged Veterans Committee whose members are handpicked to reach a particular outcome while offering a pretense of a democratic vote. It is an insult to baseball fans, historians, sportswriters, and especially to those baseball players who sacrificed and brought the game into the 21st century. At the age of 91, I can do without farce."

In 1975, Miller defeated the reserve clause, which had bound a player to a team, and paved the way for free agency. He ushered in salary arbitration, collective bargaining, and stronger pensions. Owners hated him.

Pulitzer Prize-winning sportswriter Red Smith called him "the second most influential man in the history of baseball" behind Babe Ruth. In a poll of people who changed sports, Sports Illustrated once ranked him eighth, just ahead of Larry Bird and Magic Johnson. Jim Bouton, who wrote "Ball Four," calls him "the greatest figure in sports history." Hank Aaron said the Hall of Fame doors should be broken down to get Miller in. Three-time Cy Young Award winner Tom Seaver, who holds the highest plurality in Hall of Fame history, called Miller's exclusion "a national disgrace."

* * *

Besides the owners, Miller has many enemies. There is no middle ground - people love him or hate him. Some believe he ruined baseball, recalling the strikes of 1972 and '81. And some believe Miller brought about skyrocketing ticket costs that priced out the average fan.

* * *

Miller also denies free agency ruined the national pastime, that small-market teams such as the Kansas City Royals and Pittsburgh Pirates can't compete in payroll with the major television markets. "In the old days before free agency, if you weren't the Yankees, Giants, Dodgers, or Cardinals, you were [upset] . . . The Yankees won every year. Every single year from 1949-58 either the Yankees, Dodgers, or Giants were in the World Series. You think everyone enjoyed that?"

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For the rest of the piece, click here. The photo above is from the New York Times and is of Curt Flood and Miller from back in 1970.

Thursday, July 10, 2008
Baseball on the International Front

Kevin Baxter, a writer for the Los Angeles Times, has an interesting piece in Baseball America this week about an ongoing federal investigation into bonus skimming in the Dominican Republic involving MLB club personnel. Federal investigators are interviewing personnel from all 30 teams. Bonus skimming is another term for receiving a "kickback" and the feds are investigating whether club personnel, mainly scouts in the Dominican, are either keeping a portion of the bonuses as a finder's fee or misleading their organizations about the size of bonuses and keeping the difference for themselves. The White Sox recently fired their international scouting director in connection with the investigation.

Some people in baseball are hinting that the recent escalation of bonuses in Latin America is what's fueling the problem because it has made it easier and more profitable to skim money from players and teams. According to Baxter, last year 511 Dominicans were signed for an average bonus of $65,82, which is double the average that teams paid three years ago and more than thirty times what the Athletics paid to sign Miguel Tejada in 1993. And just last week, Oakland gave a $4.25 million signing bonus to 16-year-old Dominican pitcher Michel Inoa, which is nearly $2 million higher than the previous record bonus for a Latin amateur not from Cuba. [The Reds and Rangers reportedly offered even more.]

I can't believe that people in baseball are blaming the high bonuses paid to amateur Latin players in a free agent market (Dominican players are not subject to the amateur draft) as a reason, or a contributing factor, for the illegal practice of bonus skimming. Don't blame bonus skimming on your inability to control your own purse strings! But it gets even worse, because now the federal investigation is being used to support the possible implementation of an international draft. According to Baxter, veteran Dodgers scout Ralph Avila, who helped open the floodgates to Dominican talent when he established the first training academy there 22 years ago, "fears things have gotten so out of hand that the only way to bring order would be to make Dominican players subject to the draft."

There has been a lot of discussion within baseball about implementing an international draft, making all of the Latin American countries subject to the annual MLB amateur draft in June. It's extremely difficult to predict the impact that an international draft would have on amateur players in the United States. Amateur players in the U.S. would be competing with all of the top Latin amateur players (not just from Puerto Rico anymore), so one thing we can say for certain is that fewer U.S. players would be drafted in the top rounds. The high school players in the U.S. would probably be the most adversely affected. Their bargaining leverage would become much weaker if the clubs can sign much cheaper a comparable player graduating from high school in Latin America who doesn't have a full ride scholarship to fall back on.

However, the "unknown" impact to U.S. amateur players is the overall effect that an international draft would have on the bonuses currently being paid in the draft. If overall bonuses did not substantially increase after an international draft, then U.S. players as a whole would obviously be paid much less because (in theory) a U.S. player who would otherwise be drafted in the second round or third round would be drafted in the fourth round or sixth round, respectively.

An international draft can't be unilaterally implemented by MLB. It would have to be negotiated with the union and it will be interesting to see how much MLB pushes for an international draft, as well as the union's position. One thing is for sure, the process of an international draft and its impact on U.S. amateur players will have to be thoroughly examined. If an international draft is going to be implemented and its terms negotiated, it would be an ideal time for MLB and the union to revisit the entire draft bonus structure and how bonuses are to be determined, including the issue of league-recommended "slot bonuses" and what those legally mean (which I've never understood).

Wednesday, July 09, 2008
Rich Rodriguez settles with WVU

Michigan football coach Rich Rodriguez and West Virginia University, his former employer, have settled the school's lawsuit over the $ 4 million buyout. WVU will receive the entire $ 4 million, $ 1.5 million from Rodriguez in three annual payments beginning in January 2010 and $ 2.5 million from the University of Michigan. Reports and commentary, including a statement from UM, here, here, and here. And the College of Law's Legal Perspective Blog has details on everything that as happened in the case up to this point. So the case illustrates one final principle of civil litigation--most cases settle in the end.

As for long-term consequences, the fact that WVU will receive the full buyout, and that the real quibble was over who would pay it and when, suggests that schools may well be able to get away with including and enforcing steep buyout clauses in contracts as a way to at least slow the coaching carousel.

Tuesday, July 08, 2008
New Column on Rogers Clemens' Legal Woes

I have a new column on entitled "Answering Key Questions about Clemens' Growing Legal Problems." I examine the FBI and IRS' investigations into Clemens and evaluate recent developments in his civil litigation with Brian McNamee.

Hope you have a chance to check it out.

Vick Files for Bankruptcy

Yesterday, Michael Vick filed for Chapter 11 Bankruptcy protection in Newport News, VA. For those of you with PACER access, click here. The filing number is 08-50775-FJS (Michael D. Vick). He is represented by Paul Campsen and Dennis Lewandowski of Kaufman & Canoles, P.C., out of Norfolk, VA. Among the creditors listed are the Atlanta Falcons, for the pro-rated $3.75 million signing bonus. Approximately $13 million is claimed as owed to the seven largest creditors.

Umpires, Judges, and Interpretation

Like many commentators, I thought John Roberts' suggestion at his 2005 Senate confirmation hearing that judges are simply baseball umpires--calling balls and strikes and not making any value or policy judgments and exercising no discretion-was, at best, fatuous. It was, at worst, demeaning to judges and judging, which is a far more difficult task, demanding interpretation, discretion, and value judgment, than Roberts would acknowledge. And, it turns out, Roberts' comments may have been demeaning to umpires, who must do a lot more than simply call balls and strikes. Consider the following examples.

In June, in a Class-A minor league game, a switch-hitter faced an ambidextrous pitcher. When the batter stepped in to hit right-handed, the pitcher set up to pitch right-handed. The batter then switched to bat lefty, so the pitcher changed hands again. The batter switched one more time and so did the pitcher (watch the video--the fun starts at about the 2-minute mark). Finally, the umpires gathered to figure something out.There are rules in place for switch hitters and when they can switch sides during a single at-bat, usually in response to a pitching change. And there are rules for changing pitchers during an at-bat. But nothing that specifically covered one pitcher able to change hands multiple times. The umpires conferred and decided that both batter and pitcher were allowed one switch per at-bat after the first pitch, but that the hitter had to declare a side first.

To resolve this, the umpires had to do what we think of as judging. They applied a set of generally applicable rules to a unique, probably-unthought-of factual scenario. They necessarily made a value/policy judgment in giving the pitcher an advantage by making the batter declare a side first--which goes against the de facto usual situation of the pitcher declaring first (because typically everyone knows which hand he throws with). Why make hitter-first the default rule--some value or policy judgment must have been in play. By the way, the Professional Baseball Umpire Corporation last week announced specific rules for the situation, allowing one change for each side per at-bat, but requiring the pitcher to make the first move.

This past weekend at Yankee Stadium, a batter hit a long drive that the left-fielder had in his glove momentarily, then lost when he crashed into the fence; the ball popped in the air and landed on top of the fence, where it bounced a few times and came to rest (remember the putt at the end of Caddyshack?), before finally falling back onto the field, by which time the batter was standing on third.

Calvin Massey wonders what would have happened if the ball had remained atop the wall. The ball did not go "into the stands" or "over the fence," although it was not on the playing field. The ball sort of left the playing field, at least for the time it was atop the fence. Had it gotten there "on the fly," when it hit the fielder's glove first? Massey wonders how a Justice Thomas or Scalia would view the situation, given their interpretive approaches. But the important broader point is that we recognize the need for interpretation of text, intent, and context is indeed required even in baseball. The rules clearly account for what happens a) when ball goes over the wall (home run), b) where a ball hits the wall and comes back into play (no home run), and c) where the ball goes under or through the wall (ground-rule double). The rules do not mention a ball stopping atop the wall. Figuring out that situation requires the umpire to engage in an act of judging--what is this situation most like and how does it match the words of the rules? By the way, the umps said it remained a live ball and the batter had a triple. And I think that would have been the correct call even if the ball had remained atop the wall.

There is nothing rote or automatic about what umpires do. Nor is there anything rote or automatic about what judges do. And we do a public and political disservice when we pretend otherwise, especially when used as a dodge to avoid questions about the jurisprudential theory of a Supreme Court nominee.

Cross-Posted at PrawfsBlawg

Monday, July 07, 2008
What impact will the ATP antitrust lawsuit have on non-team sports governing bodies?

Two months ago, I argued that sound policy reasons exist to support the application of an antitrust exemption for professional tennis and golf relating to rules and decisions of the governing bodies with respect to playing conditions and other issues that primarily affect the players, such as format of play, the number and location of tournaments, how they are going to be ranked, etc., etc.. As the ATP prepares for trial in 14 days to defend its decision to downgrade the Hamburg, Germany tournament sanction, SportsBusiness Journal's Daniel Kaplan probes the question what impact an ATP loss at trial would have on the governance of all non-team sports governing bodies (ATP Suit Could Remake Non-Team Sports, 7/7/08, subscription required).

Kaplan makes an interesting observation:
At its core, the Hamburg case is about whether the ATP functions as a league. If it is seen as such, then it likely will be afforded antitrust protections held by other sports leagues....If, however, the ATP is viewed as less than that — say, for example, a disparate set of global tennis events unrelated to one another, no different than non-sports businesses that are not allowed to collude — then the court could tear apart the fabric of men’s tennis.
I would add a third possibility. And that is if the ATP is viewed as an association of players who should have the right to determine playing conditions and other issues that primarily affect them. The ATP was formed as a players association, and it has elected player representatives serving on its board. To me, the player representative component has to be factored into the antitrust analysis, and is what distinguishes the ATP, PGA and LPGA from other sports governing bodies that do not have player membership (for example, NASCAR and the NCAA). As Kaplan notes, this case "could determine just how far a rules-making body can go in setting tournament schedules, compelling players to compete in certain events, establishing a ranking system and awarding sanctions." If any third party can successfully challenge rules that the players have agreed to be in their collective best interest, then these governing bodies are at risk, it's as simple as that, because third parties are going to be adversely affected in one way or another. Where do you draw the line? [The ATP settled an antitrust lawsuit with the Monte Carlo event regarding the same issue.]

If the NFL and the players decided that playing in China (or Hamburg for that matter) was not in their best interest, a court simply would not hesitate to dismiss an antitrust challenge by the event organizers in China and Hamburg, either on the basis of the non-statutory labor exemption or because the event organizers would be viewed as "jilted distributors". So is there a compelling justification for treating the non-team sports different from the team sports in applying antitrust law?

More on Defining Sport

A while back, I wrote about defining sport as a concept, focusing on objectivity in scoring as the key limiting characteristic. At the Sports Economist, Rodney Fort (a sports economist at Michigan) offers a four-part definition in the Comments that I think can almost fully endorse (with some caveats and questions):

1. Large motor skill. Thus, even though it is covered in Sports Illustrated, chess is not a sport. But then, neither is golf since there is not really any large-motor decisiveness.

Professor Fort works in kinesiology, so he knows better than I do what qualifies as "large motor skills" and why that excludes golf, since swinging a golf club does not seem much different than swinging a baseball bat or tennis racket. Does it require running?

2. Only simple machines. Baseball is OK because the bat is a simple lever and that is good because baseball is the only sport that really matters That let's out all car racing and (sorry Skip) horse racing may be a sport for the horses, but not for me.

There is some question about how simple certain machines are. As another commenter pointed out, modern tennis rackets and golf clubs are far from simple.

3. Objective scoring. Be careful with this one when it is evaluated by referees--the scoring is objective but imperfectly observed. This is different than "judging" and, properly, both gymnastics AND figure skating are right out.

This is the best defense of my objectivity-in-scoring requirement; it answers the objection that an umpire might blow a call as to whether the runner scored or the basket should have counted. The only problem is that "judged" sports such as diving, figure skating, and gymnastics at least purport to have objective grounds that judges are looking for in evaluating a triple salchow or a half-gainer. So one could argue that even these sports simply involve objective scoring, imperfectly observed.

4. Of course, competition among contestants. The 10,000 meters is a sport, but not jogging.

I like it.

Situationist Torts

Jon Hanson and I recently posted on SSRN a draft of our forthcoming law review article, Situationist Torts, 41 Loyola of Los Angeles Law Review _ (forthcoming, 2008). Our article’s abstract is excerpted below.

* * *

This Article calls for a situationist approach to teaching law, particularly tort law.

This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences.

At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught.

The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns.

Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences.

The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.

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To download the article for free, click here. That link will direct you to the abstract and various download options. We hope you have a chance to read Situationist Torts, which is the first article in our series of Situationist law pieces. Though not a sports law piece, Situationist Torts delves into how the mind sciences can inform our perceptions of legal rules, which udoubtedly connects to sports law. On a separate note, we thank Larry Solum of Legal Theory Blog and William Childs of TortsProf Blog for posting on our article.

Saturday, July 05, 2008
OSU Pitcher Sues NCAA and Former Advisor

On June 17th, I discussed the situation involving Oklahoma State pitcher Andy Oliver and the NCAA's decision in late May to declare him ineligible after he received a bill for $113,000 from his advisor, MLB certified agent Robert Baratta, whom Oliver recently terminated. One week later, Oliver filed a complaint in the Common Pleas Court in Erie, Ohio against Baratta and the NCAA.

According to the allegations in the complaint, Oliver has been suspended indefinitely by the NCAA. The complaint also alleges that there is no document evidencing the reason for the NCAA's indefinite suspension, but that Oliver has been told by OSU that the basis for the suspension is that he violated the NCAA's "no agent rule" by allowing his former advisor to make contact with the Minnesota Twins following the 2006 MLB draft (the Twins drafted Oliver in the 17th round that year as a graduating high school senior). The complaint asserts claims of breach of contract, breach of fiduciary duty and negligence against his former advisor, and breach of contract and tortious interference with contract against the NCAA.

Wednesday, July 02, 2008
Sanity in Seattle

About 45 minutes before the scheduled release of a verdict in the case pitting the City of Seattle and the owners of the SuperSonics, the parties announced a settlement, whereby the team would pay the city a sum of at least $45 million, with a possibility of another $30 million payment if the city does not secure a new NBA franchise within the next five years. The settlement paves the way for the team to move to Oklahoma City for the 2008-09 season, under a new name, thus ending a 44 year tenure in the Pacific Northwest.

The early reports characterize the $30 million payment as damages for breaching the team's lease which had two more years left (for a more complete background, see earlier blogs here and here). This was slightly more than the $26.5 million offered by new owner Clay Bennett last February. What the city did get was the possibility of another $45 million in payments if the city does obtain a new franchise by 2013 after committing to improvements in the KeyArena.

The issue of improvements to the aging arena has been debated in the Washington State Legislature, which has to approve the city's request authorizes at least $75 million in public funding to renovate KeyArena by the end of 2009. If that occurs and Seattle doesn't obtain an NBA franchise of its own within the next five years, it gets the $45 million -- a sort of "kill fee" for making the unsuccessful attempt to get a new team. Another aspect of the settlement has become a trademark (no pun intended) of teams that have relocated: they lose the name and intellectual property rights to the team.

However, a separate lawsuit by Starbucks chairman Howard Schultz, the former owner of the team against Bennett is not affected. Schultz seeks to void the sale, claiming Bennett failed to negotiate in good faith for a new arena in Seattle for one full year before relocating. If Schultz wins that suit, the settlement is voided.

I thought that specific performance was too great a leap for the court to impose (see my post here). Although the law professor side of me would have been fascinated to read the judge's opinion (and that would be worth one whole class discussion), the business school side of me (I do teach MBAs) said that business sense prevailed, because it would have been silly to keep the team for the two years as lame ducks, playing in a hostile environment. And after all, sports is a business, not a purely legal pursuit.
At a press conference announcing the settlement, the mayor of Seattle faced some tough questions about agreeing for a monetary amount and abandoning his pledge to enforce the lease. Although some fans and commentators will criticize the city, the mayor was being prudent and practical.

Re-examining the Place of Race in Sports

The West Virginia University College of Law Sports and Entertainment Law Society is proud to present its Fall 2008 Sports Law Forum, "Re-examining the Place of Race in Sports." This event will take place on September 11, 2008 in Morgantown, WV at the West Virginia University Law Center. The event is free and open to the public and will begin in the Marlyn Lugar Courtroom at 11:00 a.m.

The West Virginia University College of Law is proud to present Dr. John Carlos, Professor Timothy Davis and Professor andre douglas pond cummings who will contribute to the forum as guest speakers. This reexamination seeks to extend and continue the dialogue presented in WVU Law's October 2007 Symposium "Reversing Field: Examining Commercialization, Labor and Race in 21st Century Sports Law."

Dr. John Carlos won the bronze medal in the 200 meters at the 1968 Mexico City Summer Olympics. His “silent protest” on the medal stand with gold medalist Tommie Smith protesting against racism and economic discrimination suffered by African Americans in the United States and representing all oppressed peoples catapulted Dr. Carlos into a key role in the ongoing civil rights movement, a cause he has championed throughout his life. In 2003, Dr. Carlos was inducted into the USA Track and Field Hall of Fame. This year, Dr. Carlos will receive the 2008 Arthur Ashe award at the annual ESPY awards sponsored by ESPN.

Professor Timothy Davis is among the foremost experts on the intersection of race and the law. Co-author of Sports Law and Regulation: Cases, Materials, and Problems and The Business of Sports Agents, Professor Davis serves on the Review Board for the United States Anti-Doping Agency and is a member of the Board of Advisors for the National Sports Law Institute. Prior to teaching at Wake Forest University, Professor Davis taught for nine years at Southern Methodist University and practiced commercial litigation in Denver, Colorado.

Professor andre douglas pond cummings teaches Sports Law and Entertainment Law, among other subjects, at WVU Law. He has published numerous articles in connection with sports and equality including articles discussing the Rooney Rule in the National Football League and the inappropriate use of hostile American Indian mascots and imagery by professional and collegiate athletic teams. While practicing corporate law in Chicago, Illinois at Kirkland & Ellis, LLP, cummings also represented several athletes in the National Football League. Professor cummings was recently named the 2007-2008 “Professor of the Year” by the WVU College of Law Class of 2008.
For more information, please visit:

KSRO Interview on Floyd Landis

Yesterday I was interviewed on KSRO News Talk (California) to discuss the Floyd Landis decision. The interview can be heard at this link. Hope you have a chance to listen.

Tuesday, July 01, 2008
CAS Disqualifies Landis and Strips Him of Tour De France Title

On June 30th, cyclist Floyd Landis lost his final climb -- an attempt to retake his Tour de France title. Not only was not he not exonerated, but the three member panel rendered a ruling that at times, bordered on the hostile. [The 58-page opinion is found here]

After winning the most famous of all cycling events in 2006, he tested positive for performance-enhancing substances. He sought arbitration, according to the rules of USADA and the panel upheld the first determination despite that conclusion that the initial screening test violated WADA rules. In a 2-1 ruling, the majority of the panel (composed from arbitration from the American Arbitration Association) concluded that although the initial test from the French drug testing lab was flawed, subsequent tests --known as carbon-isotope ration analysis (IRMS), performed after the initial test, were "accurate." One arbitrator dissented.

Landis made his feeling known in a very public way, lambasting the testing process. Given the CAS's conclusion, I think that his approach did not win him any friends among the drug testing community, not on the CAS panel. He wanted the CAS hearings public, publicized his plight on the Web, and spent a ton of money (reported to be about $4 million) on both the USADA and CAS arbitrations.

It apparently was for naught. I read through the ruling (I do not claim expertise on the pathology and testing issues), but a few things struck me. First, the standard of proof, known as "comfortable satisfaction," a term I am not familiar with, but is defined under Article 3.1 of the WADA code as "somewhere between a mere balance of probability and less than proof beyond a reasonable doubt." Is that preponderance of the evidence? Somewhat less or somewhat more? Mere rationality or middle-level scrutiny (on a more constitutional law vein)?

Figuring that it is some middle ground, then a second issue involves the admissibility of the "accurate" evidence. Many of remember the "fruit of the poisonous tree" doctrine in criminal procedure that precludes evidence that flows from the taint of the first. The panel did not have to address that question specifically, but it would be interesting if they did.

The last point is the nastiness of portions of the ruling. The arbitrators were clearly irritated by some of the contentions raised by Landis's attorney, notably claims of "bias/fraud, forgery and cover-up." Yes, there may have been shoddy lab work, the panel noted, but that did not reach to the level of fraud. Also, the panel accused Landis's representatives of making these claims when there was no evidence to back them up. Notably, the arbitrators rejected the argument that the evidence could have been tampered as "fanciful."

Possibly, they may have been angered by Landis's insistence on a public hearing not only to prove his innocence, but to shine a spotlight on USADA and the rules it enforces and also establish a pattern of incompetence at the French lab where his urine was tested. As a parting shot, they ordered him to pay $100,000 in legal fees to USADA, an amount that has no rhyme or reason, since USADA spent a great deal more than that. It seemed more as spanking a wayward child than anything else.

I am bothered by several aspects of all of this. First, WADA at the very least should standardize procedures at its labs to avoid issues of sloppiness. Second, the use of witnesses should be akin to a trial. One report noted that a witness for Landis, a lab employee, testified by phone with a child screaming in the background. Hardly a conducive atmosphere. On the other hand, Landis raised the decibels to make the case a crusade against the drug testing regimen. The fact is, this is what we have. It's hardly perfect, it should (and must) be improved, but we cannot throw it out right now. [For a good analysis, check out Bonnie Ford's piece in