Sports Law Blog
All things legal relating
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Tuesday, September 30, 2008
Just Win (or get fired for cause), Baby.
Espn.com is reporting that Al Davis has fired Raiders head coach Lane Kiffin. The news isn’t surprising, but what has caused a stir is that Raiders announced that they do not plan to pay Kiffin the remainder of the salary due under his three-year, $6 million contract. The question is, can they do this? Or, perhaps, how can they do this?
Well, the Raiders are apparently claiming that Kiffin was fired “for cause” and thus has no right to any further compensation under the contract. I have not seen the terms of Kiffin’s contract, but let’s assume that it has a broad “for cause” provision that either does not specifically define for cause or gives a non-exhaustive list of examples of what might constitute for cause. For example, let’s assume the contract says something to the effect of: “If coach is fired for cause, he shall not be entitled to any further compensation under the contract.”
So, what is the “cause” for firing Kiffin in this case? It appears that the Raiders will argue that Kiffin was fired because of the team’s poor win-loss record during Kiffin’s tenure. The Raiders finished 4-12 in Kiffin’s first year as coach and have started this season with a 1-3 record. Absent a specific definition in the contract, does a 5-15 record constitute cause? Or, stated more broadly, does poor performance of a team constitute cause for firing the team’s coach?
There is some precedent in the NFL—created in part by Al Davis— supporting the Raiders on this one. Back in 1989, Al Davis fired then-head coach Mike Shanahan after he started the season with a 1-3 record (the team finished 7-9 in Shanahan’s first year as the coach) and refused to pay Shanahan the remainder of his salary. Shanahan filed a grievance against Davis, but lost. Shanahan has received some payback, though, as his Broncos have won eight out of the last ten games against the Raiders (then again, the Raiders haven’t won many games against anyone recently).
In addition, there is a fairly recent case from the Montana Supreme Court--
Cole v. Valley Ice Garden, LLC, 113 P.3d 275 (Mont. 2005)—that addresses this precise issue and provides further support for Davis. In Cole, the owner of an American West Hockey League team fired his coach for cause after the team started its season with a 1-6 record and refused to pay the coach the remainder of his salary. The coach’s contract did not define for cause, but the court concluded that for cause means a “legitimate business reason” and “[e]ssentially connotes a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” The court therefore held that “[d]ischarging the coach of a professional sports team which is performing poorly, despite management’s good faith efforts, is a discretionary decision related to the legitimate needs of the business and constitutes ‘cause.’
This report indicates that Kiffin may also have been fired because of insubordination, citing Kiffin's “brutal public honesty about his lack of control over coaching and personnel decisions since he was hired in January 2007.” If that’s the case, Davis’ for cause argument will carry even more weight.
So, absent specific controlling language in the contract, it appears that Al Davis and the Raiders may actually have a chance to win something this year.
Update: Espn.com has an update on Al Davis' explanation for firing Kiffin. Here's the latest:
Davis read a letter that he sent to his former coach that detailed mistakes made on and off the field by Kiffin. Davis finally concluded that he fired the coach for cause because he "disgraced" the organization, citing everything from conflicts over personnel moves to outright lies to the media.
Again, it's hard to analyze the issue without seeing the for cause provision in the contract, but it is clear that Davis will try to rely on a lot more than Kiffin's win-loss record in arguing that he had cause to terminate.
UCLA Sports Law Panel Today on NCAA Compliance
Nate Jones, a 2L at UCLA Law School and author of Jones on the NBA, lets me know about a panel discussion today hosted by the UCLA Sports Law Federation on NCAA compliance and other legal issues surrounding amateur sports, including those involving Brandon Jennings, O.J. Mayo, and Andy Oliver. If you are in the L.A. area today, it definitely looks like a great event to check out:
Monday, September 29, 2008
The NFL Loses its Voice
Although fans of the NFL may not recognize his name, most fans can immediately recognize the distinctive voice of John Facenda. For many years, Facenda was the voice of the NFL, narrating weekly highlights for NFL films with his deep baritone voice. Along with a great soundtrack, Facenda’s narration transformed ordinary NFL action into an extraordinary television event (here’s one of his best). Facenda’s legendary voice was the subject of a recent lawsuit that raises a variety of interesting intellectual property issues.
Shortly before Facenda died in 1984, he signed a “standard release” contract stating that NFL films “enjoys the unequivocal rights to use the audio and visual sequences recorded of me, or any part of them…in perpetuity and by whatever media or manner NFL Films...sees fit, provided, however, such use does not constitute and endorsement of any product or service.” In 2005, NFL Films produced “The Making of Madden NFL 06,” a 22 minute program about the newest version of the popular video game. The program, which was shown on the NFL Network eight times in a 3-day span leading up to the release of the game, featured interviews with NFL players and used three brief sound recordings of Facenda used in earlier NFL Films highlights.
Facenda’s estate then sued NFL Films for false endorsement under the Lanham Act and for violation of Facenda’s right of publicity. The Eastern District of Pennsylvania granted summary judgment for Facenda’s estate on both issues. In a lengthy opinion published earlier this month, the Third Circuit vacated and remanded the Lanham Act portion of the decision but affirmed the judgment on the right of publicity claim.
Here are some of the highlights of the Third Circuit’s opinion(these are much more entertaining if you read them in a Facendian voice and play classical music in the background).
1. With respect to the false endorsement claim, the court adopted the Ninth Circuit’s test from Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). Under the Downing test, likelihood of confusion regarding sponsorship or endorsement is a question of fact to be determined by weighing 8 different factors. Because there were genuine disputes over some of these factors, the Third Circuit held that summary judgment was not appropriate and remanded the case back to the district court.
2. NFL Films did not raise a First Amendment or incidental use defense to the right of publicity claim on appeal. Instead, NFL Films raised two preemption claims, both of which the court rejected.
3. First, NFL Films argued that federal copyright law expressly preempts the state right of publicity claim. The Third Circuit rejected this argument for two reasons. First, the court noted that under the express copyright preemption provision, a state law claim is not preempted if it contains an “additional element” beyond what a federal copyright infringement claim would require. Here, the “additional element” was the Pennsylvania right of publicity statute’s requirement of a showing of commercial value, defined as a “[v]aluable interest in a natural person’s name or likeness that is developed through the investment of time, effort, and money.” Second, the court held that voices are outside the subject matter of copyright and thus not subject to preemption.
4. Second, NFL Films argued that federal copyright law implied preempts the right of publicity claim. Despite the absence of an express preemption, the court explained that an implied preemption may exist because of the conflict between copyright law and the right of publicity. The Third Circuit thus asked: “When does the right of individuals to avoid commercial exploitation of their identities interfere with the rights of copyright owners to exploit their works?” To answer this question, the court looked at the use of Facenda’s voice and the scope of the copyright acquired by NFL Films in the original contract. With respect to the use issue, the court emphasized that the Madden video was not an expressive work. Rather, it was a “promotional piece akin to advertising.” With respect to the contact, the court stated that “Facenda consented to participation in films documenting NFL games, not an advertisement for a football video game.” The court thus held that implied preemption was inappropriate.
There is a lot to be said about this case, and I plan to write more about it later on, but I have one quick reaction to the decision. Although the plaintiff won on the right of publicity claim, the Third Circuit seems to continue the troubling trend of narrowing the rights protected by right of publicity statutes (Rich has blogged about the right of publicity issue extensively and persuasively), to the point where one could argue that the Third Circuit may only be willing to recognize a right of publicity in false-endorsement type cases. Granted, this issue came up in the preemption context in a false-endorsement type case with specific contract language prohibiting false endorsements, but here’s what the Third Circuit had to say about the Pennsylvania right of publicity statute and the rights it protects:
“Precisely what Pennsylvania’s right of publicity is meant to protect is a citizen’s prerogative not to have his or her name, likeness, voice, or identity used in a commercial advertisement.”
“Pennsylvania’s [statute] focuses solely on the commercial-advertising context. It is targeted at endorsements, not the full universe of creative works.”
“In the endorsement context, an individual’s identity and credibility are put directly on point.”
“Advertisements are special in the way they implicate an individual’s identity.”
Again, given the facts of the case and the legal issues before the court, it’s not surprising that the court emphasized the evils of false endorsements, but the language used by the court is at least consistent with (if not the next step in) the trend of equating the right of publicity claim with a false endorsement claim.
Upcoming Sports Law Conference at Marquette University Law School
Marquette University Law School Professor Paul Anderson, who is Associate Director of the National Sports Law Institute, has let me know of what should be an excellent sports event coming in October at Marquette Law:
On Friday, October 24, 2008 the National Sports Law Institute of Marquette University Law School will host a conference on Professional Sports: Current Issues and Their Future Implications. The day long event will be held at the Alumni Memorial Union on the Marquette campus. Conference sponsors include the Sports & Entertainment Law Section of the State Bar of Wisconsin, Foley & Lardner LLP, and Greenberg & Hoeschen, LLC.
The conference is from 9 am to 5 pm on Friday, October 24th. Complete details of the conference, including conference panels and participants, registration costs and forms, and conference sponsors, are available on the web at http://law.marquette.edu/jw/2008conf.
Saturday, September 27, 2008
Sports Law Blog Bowl
The big sports law news is from college football:
Florida International University 35, Toledo 16, with FIU scoring 21 unanswered points in the second half. Put another way: Howard Wasserman's school 35, Geoffrey Rapp's school 16.
Pursuant to our geographic-native-food/government-official-style wager, I think Geoff owes me some Tony Packo's sausage.
Friday, September 26, 2008
Sports Media Ethics (or lack thereof), Part III
Steve Donohue of SportsBusiness Journal has an interesting piece this week in which he discusses the recent trend of news outlets cutting costs on sports coverage, for example by reducing headcount in recent years, slashing travel budgets and not allowing beat reporters to cover as many away games (Newspaper Cutbacks Slice into Sports Coverage, 9/22/08). Donohue writes:
Journalism ethics in sports coverage are eroding at a rapid pace. There are a couple of ethics issues raised by Donohue's article. First, what was once considered unethical and completely unacceptable -- journalists' receipt of benefits from teams and leagues -- is apparently now going to be tested.
The second ethics issue I see from this article is that news outlets are cutting costs in the form of reduced headcount, the elimination of travel expenses and reliance on wire services as the basis for coverage, but at the same time demanding more stories and columns from journalists. While it makes sense from a purely business standpoint, it is a formula for disaster from a journalism ethics standpoint. In essence, there are fewer journalists writing more stories and columns, and those journalists are principally relying on other sources (e.g. wire services) for their reports instead of relying on their own investigations. How can the journalist know or verify that the information in the original report is accurate? Where is the source verification?
The business objectives and incentives in the current journalism marketplace are overshadowing journalism ethics.
Monday, September 22, 2008
Pirates sign draft pick, avoid labor confusion
A couple of weeks ago, I linked to commentary on a brewing dispute between the Pittsburgh Pirates and their top draft pick, Pedro Alvarez, that threatened to raise some open issues of the labor agreement. Well, the question is moot (the car is mine); the Pirates and Alvarez have agreed on a contract worth approximately $ 6.4 million, slightly more than the original purported agreement, but over a longer term.
Update, 6:30 p.m. E.D.T., Monday:
Mark Fenster at PrawfsBlawg (whose original commentary I linked to and who comes at this as a life-long Pirates fan), gives his thoughts on the deal. Note, by the way, discrepancies as to the precise amount of the final deal.
Saturday, September 20, 2008
Stevc Dilbeck writes in the L.A. Daily News that Kobe Bryant may decide to leave the NBA and sign with a European club. Our good friend Sonny Vaccaro agrees this is a distinct possibility. Sonny said on a local LA sports talk radio show: "I think there is a great possibility, if for no other reason than he will make his value worth much more than anyone can imagine. For the first time, they'll actually be in competition.” Sonny added that money might not be the problem most Americans might think it is, adding, “Some of the owners in Europe have more money than the majority of owners in the NBA. It's a small number, but it's a fact. They're billionaires. The trouble with America is we think they're penny-ante. They're not. These individuals are very wealthy. They can do this."
If Kobe does decide to make the move across two ponds, it will shake the NBA to its foundation. What’s more, it will surely be the death knell to the one and done rule which forces capable and ready 18 year olds from signing with a professional club until they serve one year down on the NCAA farm.
The current NBA eligibility rules seem to discriminate against ready and able American players. If a European high schooler, or the equivalent, signs with a professional club on the continent, he then becomes eligible for the NBA draft. On the other hand, an American who leaves high school and plays professionally in Europe for a year still is not eligible for the NBA until he turns 19. The NBA offers no reason for the distinction, but I suspect it is to encourage the signing of European players so as to make the league more attractive to the global market.
If the flow of star players starts to go the other way across the Atlantic, however, the NBA may have to rethink the plan to keep the future Kobes and Lebrons from deferring their dreams for a year just to satisfy the moguls over at the NCAA.
Thursday, September 18, 2008
We're Number 119! More on Duke Football
It’s time for the latest update on Duke football. Back in June, Mark wrote about Duke’s victory in court over Louisville. Here’s a quick recap: Duke and Louisville agreed to play each other in 2002, 2007, 2008, and 2009. Louisville won the 2002 game by a score of 40-3 (though the final score could very well have been 40-6 if not for a questionable call by the ref), and Duke decided not to play the final three games agreed upon in the contract. The contract calls for a $150,000 payment for each game a team fails to play, unless the non-breaching team is able to replace the breaching team with a “team of similar stature.” Here’s the contract.
Duke won the case on a Motion for Judgment on the Pleadings, with the court accepting Duke’s argument that “that any and all college varsity teams in the Football Bowl Subdivision (formerly Division I-A) are teams of a 'similar stature' to Duke [and] that any and all college varsity football teams in the Football Championship Subdivision (formerly Division I-AA) that would be considered as good or better than Duke in football. . . are teams of a 'similar stature' to Duke.”
Thanks to the North Carolina Business and Litigation Report, we can now watch Duke’s lawyer in action. Here is a video excerpt of some of the highlights from the hearing. My personal favorite (as a proud Duke alum): "I think the Court can absolutely positively take judicial notice that Duke is probably the worst football team in Division I football. Everybody knows that. That’s no secret.”
I won’t rehash the discussion about the wisdom of the judge’s decision here, but I do wonder if arguing that Duke is the “worst” team was the best strategy. Mark noted in his post that it would be difficult to replace Duke football if it were (like, say, Duke basketball) consistently one of the best teams in the country. Well, doesn’t that argument also work the other way? Isn’t it just as difficult to replace the worst team in the country? Only a few teams can claim to be the “best” or the “worst,” so it would seem to be more difficult to replace teams on either end of the spectrum. Granted, the provision only requires a team of “similar” (not the same) stature, but it seems to me that the better argument would have been that Duke is a very mediocre football team, easily replaced by many of the other mediocre teams in the country.
In any event, the “worst football team in Division I football” is 2-1 to start the season (narrowly losing to Northwestern). We’ll see if Duke can keep it up, but for now I can still dream about a Duke-Louisville grudge match in the Meineke Car Care Bowl.
Chicago Sports Law CLE
Illinois readers might be interested in the "Sports Law Pairing" CLE event, scheduled for November 6 in Chicago. The agenda features a number of interesting topics. Sports lawyer Eldon Ham, who has taught Chicago-Kent's sports law class for years, will be speaking at the event.
Sunday, September 14, 2008
Great New Article on Morals Clauses
I've always found morals clauses in player and endorsement contracts to be interesting. Morals clauses give the employing team/company the right to suspend or terminate a contract with a player who engages in "immoral" conduct. Defining what counts as "immoral" can vary considerably by contract; sometimes a criminal conviction is required, other times just an arrest, and still other times non-criminal, yet embarrassing behavior can count (such as someone getting drunk at a charity function).
Brian Socolow, a partner at Loeb & Loeb in New York City, has a new article out on morals clauses entitled "What Every Player Should Know About Morals Clauses." It's a terrific read -- I recommend checking it out.
Saturday, September 13, 2008
Sports Media Ethics (or lack thereof), Part II
Today will be remembered by me as the day in which journalism ethics in sports reporting officially died. Jim Wyatt of The Tennessean (and reprinted in USA Today) publishes deeply personal and private discussions between Vince Young and his psychologist regarding contemplations of suicide that Wyatt obtained from a police report. Last May, I discussed "Sports Media Ethics (or lack thereof)" and how journalists routinely get away with intruding into the private lives of sports participants. What could possibly be a justification for this publication? Is it that professional athletes seek attention (e.g. by endorsing products) and thereby "assume the risk" that every aspect of their private lives will be exposed by the media? Is it that the public is entitled to know this because it relates to his performance on the field? Is it because professional athletes are "role models"?
There is no justification whatsoever for this publication. As I mentioned in my post last May, the media determines what is "newsworthy" and there is no external mechanism or independent body to enforce journalism ethics codes. You might be thinking, well, that has always been the case. However, the economics of the journalism industry in the Twenty-First Century are different. Too many media sources are vigorously competing with one another to grab the attention of the audience, which directly conflicts with the goals and policies of journalism ethics codes. As the credibility of the press crumbles, the justification for First Amendment protection becomes weaker. I am in the finishing stages of a paper in which I discuss the changing journalism marketplace and its impact on the First Amendment, and how courts can incorporate journalism ethics codes into tort law standards without compromising the First Amendment.
UPDATE 9/16: It is reported that Titans coach Jeff Fisher says that the police report contains many inaccuracies, including the fact that (1) Young's local marketing manager, Mike Mu, called the team psychologist, Sheila Peters, with the alarm that Young had left his home without his cell phone, threatening to quit and was speeding down the interstate with a gun in his car after talking to Mu (not the psychologist) about suicide and (2) the team psychologist, in turn, called Fisher with Mu's account but she never spoke directly with Young, as indicated in the police report, until the end of the night. As to Young's state of mind regarding possible suicide, Fisher said, "I don't buy it," and was irritated with Mu's involvement with Young.
Journalists have an ethical obligation to seek the truth, which entails a discipline of verification -- seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment. This “is what separates journalism from other modes of communication, such as propaganda, fiction or entertainment.” See Project for Excellence in Journalism, Principles of Journalism, at http://www.journalism.org/resources/principles. Before publishing the information in the police report, the accuracy of the report could have been verified by merely picking up the phone and asking Fisher whether the police report was accurate about what Fisher told the police.
Thursday, September 11, 2008
Re-examining the Place of Race in Sports
A webstream of "Re-examining the Place of Race in Sports" featuring John Carlos, Tim Davis and andré douglas pond cummings can be viewed at:
The West Virginia University College of Law and the Sports and Entertainment Law Society sponsored this fall forum.
USOC Apologizes to 'Masked' Athletes
Admitting the impropriety of its demands to four U.S. Olympic athletes to apologize to Beijing Olympic officials for wearing anti-pollution masks, the U.S. Olympic Committee is now apologizing to those athletes. As noted in my earlier blog, the four cyclists -- Sarah Hammer, Jennie Reed, Bobby Leafter and Mike Friedman -- were castigated by the USOC for wearing the masks upon arrival at the Beijing airport. According to the Chicago Tribune, the letter admits that it was an error not to have athlete representatives present when the demand was made and not have a USOC staff member at the airport to meet the athletes and attempt to resolve the situation at that time.
The four were effectively stifled from getting their story across. They argued that a USOC sports psychologist recommended the wear the masks from the "minute they set foot in Beijing." If that is the case, any "fault" (if you can call such a recommendation a fault) derived USOC personnel, not the athletes. The four claimed that the incident adversely affected their performance at the games.
The apology comes too late and the damage has been done.
Update on CBS - NFL Players Fantasy League Dispute
In response to the lawsuit filed by CBS against the NFLPA in Minnesota that I mentioned last week, NFL Players Inc., the entity that handles the group licensing and marketing for the players, has filed its own lawsuit this week against CBS in federal court in Miami. According to the press release, NFL Players asserts that CBS filed the lawsuit in the wrong jurisdiction because the case has no connection to Minnesota and that the filing in Minneapolis names the wrong defendant -- the NFLPA rather than NFL Players Inc. This is getting good....
Wednesday, September 10, 2008
Video Evidence and Sporting Events
I suppose this was inevitable: Video evidence of alleged public police unconstitutional conduct hits the sports world. Last weekend, East Carolina beat West Virginia in football. ECU fans rushed onto the field to celebrate the victory, encountering police along the way. Only one arrest was made, but more than a dozen complaints of excessive force were made and are being investigated.
And, because video phones and small cameras are ubiquitous, especially among college students and young people, there are many videos from many different sources capturing different parts of the melee.
To its credit, ECU is taking the investigation very seriously and has announced at least preliminary indications that excessive force was used in at least some incidents.
Part of the reason for ECU taking this so seriously is the existence of multiple videos from multiple sources--videos that thousands of people have seen on YouTube. ECU officials have more than the word of the victims or even people who watched amid the swarm of people. Video persuades more powerfully than oral explanation and that power holds the attention of public officials who must respond to public incidents such as this and to the public that can "witness" the events. Video is not as conclusive as we often believe it is. But it is very beneficial in driving the conversation about, and public response to, recorded events.
We can see the difference between these two uses of video by looking at the top video, a four-second clip of a deputy repeatedly hitting a fan who is lying on the ground--this is the incident that one ECU official labeled "sickening in nature." But the video is not complete, limited by its frame and perspective--we cannot see the person on the ground and we cannot see what he is doing. It thus would be problematic to allow this video to become the evidentiary be-all, end-all in litigation (especially the § 1983 actions that are forthcoming), without regard to the officer's (and victim's) explanations for what was going out just out of the camera's range and the video's image.
This incident also demonstrates the reality of current police responses to crowd control and the problems these create. According to ECU police officials, their strategy (in anticipation of a victory) was to deter students from running onto the field by showing a presence, but not necessarily to physically engage the students who (inevitably) make it onto the field, at least so long as they merely are celebrating and not confronting members of the other team. Unfortunately, game security was provided by officers from five jurisdictions, some of which appear to utilize different training methods and strategies when it comes to handling large crowds moving into a space (here, the field) where they do not belong. There also appear to be examples of officers reaching into the stands to confront and control students (check around ans after the :34 mark on the third video). This is part of the more confrontational approach that law enforcement takes to handling even peaceful crowds, often involving a very quick escalation into physical confrontation and arrests.
Another Statistic to Measure a Batter's Future Performance
If you are one of those people convinced that future performance at the plate can be predicted by using some creative formula and crunching a bunch of numbers, Ron Shandler of USA Today mentions a statistic that I had never heard of before, the "Expected Batting Average" (Batters Don't Always Live Up (or Down) to Expectations):
I have always been skeptical of using complex mathematical formulas to predict a batter's future performance. And it's not because I don't understand them or consciously don't want to try to understand them, which is what the statisticians like to say about the "traditional-minded" scouts. Here is my explanation. In one game the ball can look like a beach ball floating at 45 mph, and in another game the ball thrown by that same pitcher looks like a golf ball darting at 125 mph. I don't know why that is, and there is no formula or computer that can be used to explain it. It's called "being in the zone," and it's just one of those things in which the baseball gods have been toying with batters ever since the game was invented. But it definitely drives statisticians and lawyers crazy....
Tuesday, September 09, 2008
Did Inaction Lead to The Worst Performing U.S. Olympic Boxing Team in History?
Whether U.S.A. Boxing Could Have Done More to Get Medal Favorite Gary Russell, Jr. the Opportunity to Compete in the Beijing Games
by Paul Stuart Haberman, Esq.
During the early morning of August 8, 2008, United States Olympian Gary Russell, Jr., the boxing team’s bantamweight (119 lbs.) entrant, went for a run in a vinyl sauna jacket around the Olympic Village in Beijing to lose his final one pound and four ounces in order to make the bantamweight limit for the weigh-in a few hours later. That morning, for the first time in a deep amateur boxing career in which Russell earned nearly 200 victories and won such tournaments as the 2004 Junior Olympics, and the 2005 U.S. Championships and National Golden Gloves, Russell’s body failed him. He collapsed from dehydration upon returning from his run and was unconscious for close to five minutes. Though he was re-hydrated in advance of the morning’s weigh-in, Russell was not medically cleared to weigh-in and was disqualified from the Olympic competition. In an instant, 16 years of toil and achievement reached a heartbreaking conclusion for the U.S. bantamweight. A boxer that was once compared to Sugar Ray Leonard by the legend himself was rendered ineligible to try to match Leonard’s 1976 Olympic Games achievement.
In the absence of Gary Russell, Jr., who was generally regarded as a strong medal favorite, the U.S. Olympic Boxing Team went on to its single worst showing in Olympic history. The team won a single medal, a bronze in the heavyweight division. While officials from USA Boxing, the organization in charge of amateur boxing in United States, asserted that they reviewed the applicable laws surrounding the amateur boxing competition to see if they could petition for Russell to weigh-in later but found nothing in the applicable laws from which to construct an argument, a review of those laws raises serious questions as to whether that was the case. This article will focus on the relevant provisions of the laws applicable to amateur boxing in Beijing Olympics and show why the U.S. Olympic Boxing Team may have been the worst in history due to little more than the default and inaction of USA Boxing.
The International Amateur Boxing Association Technical and Competition Rules
The International Amateur Boxing Association Technical and Competition Rules (hereinafter “AIBA Rules”), effective May to August 31, 2008, were the rules that governed the amateur boxing competition in the Beijing Olympics. Rule 5.1.1 of the AIBA Rules reads:
“[t]he contestants of all weights should be ready to weigh-in on the day before the start of the competition. The time from the end of the weigh-in to the start of the first day of the competition should not be less than 6 hours. The time from the end of the weigh-in to the start of the remaining days of competition should not be less than 3 hours. The Technical Delegate of the event reserves the right to relax this condition, if unavoidable circumstances occur and after consultation with the Chairman of the Medical Jury.” (emphasis added)
It is epidemic in both the amateur and professional boxing worlds that no matter how hard many athletes prepare, there is generally a last minute drive to take off the final excess weight in advance of their pre-fight weigh-ins. While a majority of boxers lose the weight without complications, including Russell himself on scores of occasions, the effort often exacts a toll on a boxer’s body. This is what led to Russell’s collapse on the morning of August 7, 2008.
After Russell’s collapse, the question from a legal standpoint was whether, under the AIBA Rules, a petition could have been made to relax the conditions of Rule 5.1.1 in order to allow him to weigh-in at a later time. Russell, as well as the other bantamweight boxers in the Olympics, were not scheduled to have their first round bouts until August 12, 2008, four days after the weigh-in. More importantly, Russell’s effort to lose the final one pound and four ounces resulted in a medical emergency, his lapse into unconsciousness. A cognizable argument could have been advanced by USA Boxing that Russell’s collapse was an “unavoidable circumstance” of his effort to make weight. The Chairman of the Medical Jury at the Beijing Games could have then been consulted about the situation and given his approval for the Technical Delegate to “relax [the] condition” that Russell had to weigh-in at the same time as the other boxers in the competition and have his opportunity to recognize his Olympic dream.
There are three major counterpoints to the above argument. The first is that allowing Russell to weigh-in later would have given him an unfair advantage over his fellow competitors. However, given that Russell had already been re-hydrated by the time that the weigh-in actually took place, the short delay would not have created much of an advantage. Even more detrimental to that argument is that while the amateur boxing competition, as a whole, began the day after the weigh-in, the bantamweights were not scheduled to have their first round matches until August 12, 2008, four days after the weigh-in. Any advantage that Russell could have gained, therefore, from being allowed to weigh-in later would have been moot, as each bantamweight had ample opportunity to re-hydrate by that point. Furthermore, if anything, Russell would have been at a disadvantage as it would have been Russell and Russell alone that had the least time to re-hydrate before his first round match. Even then, he had two to three more days than professional boxers generally do to carefully replenish himself.
The second major counterpoint is that Russell’s collapse did not qualify as an “unavoidable circumstance” since he lost consciousness for a reason related to the competition, and not because of any circumstances that were both “unavoidable” and unrelated to his efforts to make weight. The problem with this argument is twofold. First, interpreting the Rule 5.1.1 that way effectively punishes the athlete for his thoroughness and diligence in doing his part to participate in the competition. It seems unlikely that the intention of Rule 5.1.1 was to create a rigid, non-appealable punishment of competitors that encountered trouble making weight. Secondly, given the date of the enactment of the applicable AIBA Rules (May 2008), the idea that Russell’s collapse was not an “unavoidable circumstance” was an open legal question in the absence of any guiding precedent, as it had likely not been interpreted as yet by either AIBA or the Court of Arbitration for Sport, to which AIBA’s decisions can be appealed. Without such precedent, USA Boxing effectively let its own interpretation as to what constitutes an “unavoidable circumstance” guide it and declined to make the necessary argument to make sure Russell’s ability to compete was protected to fullest extent under the AIBA Rules.
The third major counterpoint relates to Rule 7 of the AIBA Rules. Rule 7 will be explored below.
Rule 7.1.1 mandates that “[t]he draw for the Olympic Games shall be held one day before the competition.” At the same time, Rule 7.6 states that “ [i]n any case, until the last weight category draw is completed, if there is any mistake or unavoidable circumstance taking place, the Technical Delegate has the right to order the particular weight draw(s) to be done again.” (emphasis added). Though these two subparts of the same rule appear to be in conflict with each other, strict adherence to Rule 7.1.1 would have made it impossible to find “any mistake or unavoidable circumstance taking place” at the Beijing Olympics that would lead a particular weight draw to be done again, no matter what had happened to any of the individual boxers.
Further, the verbiage “taking place” within Rule 7.6 suggests that the rule is meant to address problems with individual boxers during the scheduled time of a weigh-in. At the time that Russell collapsed, he had an 105 fever and was extremely dehydrated. Even with medical assistance, the effects of each had not fully passed by the scheduled time of the weigh-in. In short, Russell’s medical problems were still “taking place” at the time. And, as discussed above, an argument could have been forwarded by USA Boxing that his collapse was an “unavoidable circumstance” of his efforts to make weight for the Olympic competition. The third major counterpoint to the argument in favor of the application of Rule 5.1.1 in order to seek a later weigh-in, that the draw for the Olympic Games had to be held one day before the competition in accordance with Rule 7.2, could have therefore been challenged by USA Boxing by virtue of the wording of Rule 7.6. This is especially true when one considers that the bantamweights were not scheduled for their first round matches until four days later, as there would not have been a real disruption of a draw in which no bouts had occurred.
Olympic Movement Medical Code
The Preamble of the Olympic Movement Medical Code (hereinafter “Medical Code”) states that the Medical Code “is intended to apply to the Olympic Games” and “recalls the basic rules regarding best medical practices in the domain of sport and the safeguarding of the rights and health of the athletes.” Under Chapter 1, Section 5.4 of the Medical Code, “[a]thletes have the right to choose and change their own physician, health care provider or health care establishment, provided that this is compatible with the functioning of the health care system. They have the right to request a second opinion.” Russell was seen by doctors the morning of August 8, 2008, who revived him, but did not clear him to weigh-in. It is unclear, however, as to whether Russell sought a second opinion on his own or had even been advised by USA Boxing that he could seek one. A second opinion, provided after he had been revived, could have resulted in a medical clearance for him to weigh-in. As an Olympian, Russell was entitled to same under the Medical Code.
A counterargument to Russell’s right to a second opinion arises from Chapter 1, Section 6.8 of the Medical Code. Chapter 1, Section 6.8 reads, in relevant part, that : “[a]t sports venues, it is the responsibility of the team or competition physician to determine whether an injured athlete may continue in or return to the competition.” The argument could, therefore, be made that it was within USA Boxing and its physicians’ discretion to determine whether Russell was medically capable to continue under the Medical Code. However, the fact remains that Russell was entitled to a second opinion under the Medical Code and does not appear to have received one. When the two provisions of the Medical Code are read together, it would appear that, once a second opinion was given, it would then fall to USA Boxing and its physicians to determine whether Russell should be given medical clearance to weigh-in.
There is a strong indication that USA Boxing did not make every effort to save the Olympic bid of Gary Russell, Jr. after his collapse before the weigh-in in Beijing. It is a basic canon of any attorney’s practice to make any and all non-frivolous arguments that can be made in the advancement of the interests of your client. Had USA Boxing done the same with regard to Russell, he could have at least come home from Beijing knowing that the team that he spent 16 years toiling to become part of did everything they could for him, regardless of whether or not any petition was successful. And if such a petition had been successful, one of the team’s top medal favorites could have attempted to save the team from its worst showing in Olympic history and fulfill a lifelong dream.
[Post-script: I should note that while dehydration was the reason cited in the press, Russell's collapse was never conclusively linked to dehydration by medical personnel in Beijing. Indeed, several other people encountered similar medical problems during their stays in Beijing and a number of possible etiologies have been discussed. The prospect that it was not, in fact, dehydration that caused Russell to collapse and instead was something else outside of Russell's knowledge or control would only bolster the above arguments in Russell's favor.]
Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Mr. Haberman is Gary Russell, Jr.’s attorney. ©
 Les Carpenter, Wilder, Yanez Win to Keep Hopes Alive for American Fighters, Washington Post, Aug. 14, 2008, at E07.
 According to Appendix A of the AIBA Rules, the duties of a Technical Delegate include “[t]o supervise/monitor the arrangements for the draw, the weigh-in, the medical examination and the daily schedule of the contests” and “[t]o liase and cooperate with the Chairpersons of the Referees & Judges, Technical & Rules and Medical Commission, whose duties, powers and responsibilities are outlined in the AIBA Statutes.” The Olympic boxing competition was mandated to have two Technical Delegates pursuant to AIBA Rules for Competition Officials Rule 1.2.3.
 Carpenter, supra. An AIBA spokesperson suggested that the rule was meant more for “natural disasters” and that it could not have been considered unless Russell had actually shown up for the weigh-in. It should be noted though that AIBA spokesperson did not note whether the term “unavoidable circumstances” had ever been interpreted that way by the Court of Arbitration for Sport, which is the legal body employed for the resolution and appeal of disputes related to the statutes, regulations, and decisions passed by AIBA, AIBA confederations, or AIBA members. See Article 12(e) of the International Boxing Association Statutes.
 Les Carpenter, Boxer’s Parents: ‘No Fat to Burn’, Washington Post, Aug. 10, 2008, at D11.
The Pittsburgh Pirates, Scott Boras, and Pedro Alvarez
Mark Fenster (Florida), guesting at PrawfsBlawg, has a great analysis of the ongoing dispute between the Pittsburgh Pirates and their top draft pick (and purported savior) Pedro Alvarez, represented by Scott Boras. Check it out; the situation has gotten very ugly.
New tales of sport and free expression, Part III
The new Sports Illustrated reports on the involvement of a number of professional athletes as supporters and activists on behalf of both presidential candidates and suggests we are seeing the return of the activist athlete, thought dead-and-buried in the 1980s and 1990s by players more interested in commerce than politics. The piece is careful not to lump current political involvement with Muhammad Ali refusing military induction and almost going to jail. But the level of political awareness and involvement among athletes is rising.
A couple of thoughts on this. First, as the article notes, the nature of involvement has changed. It is less personal--it is not about protesting the draft because you have been drafted or about fighting Jim Crow because you could not stay with the rest of the team while you were in the Minor Leagues or about agitating for women's equality through the vehicle of sports. It also is somewhat less dramatic--it is less about bringing about major structural change (overturning the entire social system in the south and in the nation as a whole) than about working within the current system to produce desired outcomes (namely, electing the candidate of your choice).
Second, that actually reduces the risks of getting involved. Ali and other African-American activists were seen by many as "dangerous," precisely because the change they sought was so dramatic, which obviously would interfere with their business and endorsement opportunities. It seems unlikely that a player will lose endorsements or other business opportunities, or be shunned by fans, simply because he supports one or the other of the major-party candidates. Even a player who does take riskier and more significant stands--Carlos Delgado refusing to stand on the field for "God Bless America" as an anti-war protest--draws a lot of criticism, but also a lot of support for his stance.
Third is the media attitude towards athlete activism. One of the ironic (if not hypocritical) things about sports writers and columnists pushing athletes to become more involved is that writers and columnists were the harshest critics of activist athletes in the 1960s. A few years ago at a symposium on baseball and society, I saw a presentation analyzing the drumbeat of unrelenting and harsh criticism directed at activist Black athletes by Dick Young, a New York-based, nationally syndicated columnist who was at the height of his powers in the late 1960s. Now, those same media members decry the absence of athletes willing to get involved. But the media position provides further insulation--for every reporter who criticizes a player for taking a stand, another reporter likely will laud the efforts.
Finally, the very thing that purportedly made athletes reluctant to get involved--the substantial money and fame they now enjoy--is what they have been able to leverage in this new activism. Players get involved in large part by donating money and making endorsements and by becoming major fundraisers (NBA star Baron Davis for Obama, Red Sox pitcher Curt Schilling for McCain).
Re-examining the Place of Race in Sports
The West Virginia University College of Law Sports and Entertainment Law Society is proud to sponsor its Fall Forum, Re-Examining the Place of Race In Sports, to be held this Thursday, September 11, 2008 at 11:00 a.m. in the Marlyn Lugar Courtroom at the WVU Law Center in Morgantown, West Virginia. The event is open and free to the general public.
This event features Dr. John Carlos, bronze medalist in the 200 meters at the 1968 Mexico City Olympics and famed civil rights medal stand protester (alongside Tommie Smith). Dr. Carlos recently received the Arthur Ashe lifetime achievement award at the 2008 ESPY's.
The panel also features Timothy Davis professor of law at Wake Forest University and author of numerous scholarly works on sports law and its intersection with race; and andré douglas pond cummings, professor of law at West Virginia University and widely published author on issues of discrimination and hostile race imagery perpetuated by professional and collegiate athletic teams.
For more information, please see: http://law.wvu.edu/raceinsportsforum.
The forum will be webstreamed live from the above webaddress.
Sunday, September 07, 2008
New tales of sport and free expression, Part II
This one is about two weeks old, but I just heard about it. Rick Reilly at ESPN.com writes about the new policy at the University of Virginia banning all signs at sporting events. The policy apparently was triggered by University objections to students last season wielding signs critical (and calling for the firing) of football coach Al Groh, in violation of a policy against signs bearing derogatory comments, and by the school's a desire to keep the game environment "positive." More coverage (from late August) here and here. Perhaps realizing that, as a public institution, such naked viewpoint discrimination could not fly, the school went the next step and banned all signs.
At a policy level, this just seems stupid. Schools actively encourage expressive creativity in their fans, yet turn around and cut-off the often-most-creative medium (Reilly gives some examples of clever signs; my favorite, from a Boston Bruins game in the 1970s: "JESUS SAVES AND ESPOSITO SCORES ON THE REBOUND"). Reilly is especially fascinated by the irony of this occurring at the university founded by Thomas Jefferson.
At a constitutional level, the effort is too clever by a half and still will fail. The blanket ban is content neutral on its face. Although motivated by a desire to halt particular speech, courts generally will not look beneath the explicit scope of a ban and into government motive when evaluating content neutrality. The fact that the school believed a blanket ban on all signs was the most constitutional approach illustrates one of the ironies of the focus on content discrimination--government is on safer ground by restricting a greater amount of speech than with a narrower restriction, if it seems to be picking and choosing among speakers and messages.
But even a content-neutral rule must satisfy intermediate scrutiny and I am pretty sure this cannot. First, it cuts off an entire unique medium of communication (written communication); the fact that fans still are encouraged to provide "vocal support" (in the words of the school's associate athletics director) does not overcome the loss of an entire medium. This is especially true if the remaining medium (oral cheering) does not allow speakers to express the same ideas in the same (possibly) creative and meaningful way. Thinking about the sorts of signs we see at sporting events, they do not translate orally.
Second, intermediate scrutiny still requires an important or significant government interest be served and I am not sure what U. Va.'s interest is. Is it making sure that views are not obstructed by fans waving signs? A blanket ban is not tailored to meet that interest because narrower regulations (limits on the size and shape of signs or the circumstances in which signs can be waved or displayed) would effectively serve that interest. Reilly tells the story of one U. Va. student who, after having several signs confiscated, went to the game with a message on a piece of notebook paper, which still was confiscated, although I am not sure how it obstructed or interfered with any other fans. Plus, the policy also does not define what a "sign" is, leaving open the possibility that it will include t-shirts or painted bodies, which clearly do not implicate the obstruction concern.
Is it not wanting the distraction to fans and players that comes with signs? That interest does not seem to be unrelated to the content of the message on the particular sign (in other words, it is not content-neutral). The distraction comes from the words on the sign, not from the mere presence on the sign. Actually, we could test this by adopting one of Reilly's suggested forms of disobedience--bring in a blank sign and see what happens.
U Va. is, not surprisingly, getting some negative media attention on this one. In part, this may be because the sign that triggered the policy, while negative, was not profane or offensive (compare the attempted regulations at the University of Maryland several years ago in response to profane and homophobic chants). In part, it is because, while the regulation is formally neutral, it clearly is motivated by a desire to stop criticism of the team, the coaches, and (indirectly) the administration--in other words, it smells like an attempt by the government to stop people from criticizing it. My prediction is that the policy is rescinded fairly soon, at least as soon as the first lawsuit is threatened.
Cross-posted at Prawfsblawg
New tales of sport and free expression, Part I
Some new stories of sport and speech this week. I originally was going to discuss them in one post, but it got too long, so I decided to break it up over the next few days.
A blurb in the new Sports Illustrated reports that a fan was kicked out of Yankee Stadium when he tried to leave his seat and go to the bathroom while "God Bless America" was playing during the Seventh Inning Stretch. This seems an inevitable next step in the Yankees' (wrong-headed) efforts to force stands to remain in their seats for GBA in order to "show some respect."
For the moment, put aside the state action hurdle ((which I discussed a year ago, as well as here). This seems to me the paradigm of what free-speech principles protect against: An individual has been told that, unless he adheres to and participates in the affirmation of a community symbol and associated ritual, he will be forcibly removed from that community.
It will be interesting to see if we finally get First Amendment litigation over these efforts to control expression at the old ball game.
Cross-posted at PrawfsBlawg.
Friday, September 05, 2008
LPGA Rescinds English-Only Suspension Policy
Today, the LPGA announced that it would revise its English only language policy to eradicate the draconian consequence of suspension, as reported here earlier this week. According to LPGA commissioner Carolyn Bivens, the LPGA was enlightened by the serious criticism it came under after announcing its policy. Commissioner Bivens acknowledged that the LPGA had received some "valuable feedback from a variety of constituents" and based on that feedback, the LPGA decided to rescind the penalty provisions requiring suspension if its players failed an oral English evaluation in 2009.
Bivens stated that "After hearing the concerns, we believe there are other ways to achieve our shared objective of supporting and enhancing the business opportunities for every Tour player. In that spirit, we will continue communicating with our diverse Tour players to develop a better alternative. The LPGA will announce a revised approach, absent playing penalties, by the end of 2008.''
While acknowledging making a racially discriminatory and ethnically tinged mistake does not dismiss the insensitive adoption of the policy, the LPGA at least deserves some credit for recognizing that it had crossed the line and now seeks to rectify its error.
CBS Sues NFLPA for Demanding Licensing Fees
Eric Fisher of SportsBusiness Journal reports today that CBS Interactive Inc. sued the NFLPA earlier this week in the U.S. District Court for the District of Minnesota, claiming that the NFLPA is wrongly pressuring CBS to pay licensing fees to operate fantasy football games this season. The complaint alleges: "Despite the clarity of the law on this issue, and despite its arguments having been fully considered in the recent litigation, the Players Association continues to make objectively baseless demands for licensing fees from CBS Interactive and others in the fantasy football industry." The complaint also alleges an antitrust violation because the union has "gone so far as to say that if CBS Interactive takes any action to challenge its rights to licensing fees, it will never again grant CBSSports.com rights necessary to operate fantasy games and will therefore put CBSSports.com out of the fantasy football business." Fisher notes that CBSSports.com paid the union a total of $1.49M in the fiscal year ended February 29, 2008, up from $1M in the prior fiscal year, but that CBS has not paid the union anything this year as a result of the CDM case.
"Objectively baseless demands"? CBS can't be serious. Does CBS really believe that the Eighth Circuit's opinion, which is the first court ever to apply a precarious "public domain" standard for determining when the First Amendment trumps the right of publicity, provides "clarity of the law on this issue"? Ironically, CBS is so confident about the clarity of the law on this issue that it had to beat the union to the courthouse by filing its lawsuit in Minnesota so as to stay within the jurisdiction of the Eighth Circuit Court of Appeals, which rendered the opinion in the CDM case. And the antitrust claim is meritless because the union is exempt pursuant to the statutory labor exemption, which provides that a labor union's actions in furtherance of its own interests (and not in concert with non-labor groups) are exempt from the reach of the antitrust laws.
The Best Bargains in College Football
Winning in college football is one thing, but who's winning without breaking the bank on their coach's salary? Darren Everson of the Wall Street Journal compiled some interesting data on this question. Everson ranks the BCS teams that received votes in last season's final AP poll in order of how big a bargain their coaches were, based on an average of a coach's salary and the "cost per vote" (coach salary divided by the number of AP votes each team received). It should be noted that there are schools with very highly paid coaches that did not receive votes in the final AP poll, including Iowa and Notre Dame (both coaches with salaries in excess of $3M), and thus did not even make the list.
Wednesday, September 03, 2008
Where did the best sports agents go to law school?
At Moneylaw, Louisville law dean Jim Chen discusses a profile of football agent Ben Dogra from today's New York Times. Dean Chen notes:
Scott Boras attended McGeorge School of Law. Theo Epstein went to law school at the University of San Diego. Dogra...attended SLU Law....[T]op plaintiffs' lawyers are not concentrated among the alumni ranks of elite schools, but rather come from schools all over. Successful sports agents and executives, one strongly suspects, follow a similar pattern. There are indeed many paths to success after law school, and the overwhelming majority of those paths have no connection to the 35 schools in the top twenty, let alone the three, fourteen, or eighteen truly "elite" schools that dominate gossip in legal academiaAdditions? Tom Condon, Dogra's boss, went to Baltimore law (while playing in the NFL). Although Tellem went to Michigan, Picciotto (Octagon) to Penn and Rosenhaus to Duke (and Theo Epstein to Harvard College), it seems clear success in the highly competitive sports agent field is not limited to those with "elite" law school degrees.
Tuesday, September 02, 2008
New Sports Law Scholarship
Recently published scholarship includes:
Phillip C. Blackman, Student Article, The NCAA’s academic performance program: academic reform or academic racism?, 15 UCLA ENTERTAINMENT LAW REVIEW 225 (2008)