Sports Law Blog
All things legal relating
to the sports world...
Monday, October 27, 2008
 
Recent Sports Law Scholarship

Recent scholarship includes:
Walter T. Champion, Jr., The O. J. trial as a metaphor for racism in sports, 33 THURGOOD MARSHALL LAW REVIEW 157 (2007)

andré douglas pond cummings, Pushing weight, 33 THURGOOD MARSHALL LAW REVIEW 95 (2007)

Timothy Davis, Tort liability of coaches for injuries to professional athletes: overcoming policy and doctrinal barriers, 76 UMKC LAW REVIEW 571 (2008)
A. Jerome Dees, Access or interest: why Brown has benefited African-American women more than Title IX, 76 UMKC LAW REVIEW 625 (2008)

N. Jeremi Duru, Exploring Jethroe’s injustice: the impact of an ex-ballplayer’s legal quest for a pension on the movement for restorative racial justice, 76 UNIVERSITY OF CINCINNATI LAW REVIEW 793 (2008)

Kenneth D. Ferguson, Blurring the boundary lines between amateur and professional sports, 76 UMKC LAW REVIEW 643 (2008)

Linda Sheryl Greene, Football coach contracts: what does the student-athlete have to do with it?, 76 UMKC LAW REVIEW 665 (2008)

Brandon Gutshall, Note, A new uniform: NCAA policy and student-athlete misconduct, 76 UMKC LAW REVIEW 727 (2008)

Jonathan Little, Running against the wind: sex discrimination in high school girl’s cross country, 76 UMKC LAW REVIEW 711 (2008)

Adam B. Marks, Note, Personnel foul on the National Football League Players Association: how union executive director Gene Upshaw failed the union’s members by not fighting the enactment of the personal conduct policy, 40 CONNECTICUT LAW REVIEW 1581 (2008)

Alfred Dennis Mathewson, By education or commerce: the legal basis for the federal regulation of the economic structure of intercollegiate athletics, 76 UMKC LAW REVIEW 597 (2008)

Shane C. Mecham and Kevin M. Guskiewicz, Head case: an agent’s guide to protecting their NFL clients from concussions and associated risks, 76 UMKC LAW REVIEW 699 (2008)

Aaron Mensh, Note, “Upon further review”: why a sports stadium can justify an eminent domain taking, 40 CONNECTICUT LAW REVIEW 1623 (2008)

Lara Krigel Pabst, Note, Embodying the Olympic spirit: why Paralympic athletes should be entitled to proportionate benefits under the Americans With Disabilities Act, 76 UMKC LAW REVIEW 751 (2008)

Deborah L. Rhode and Christopher J. Walker, Gender equity in college athletics: women coaches as a case study, 4 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES 1 (2008)

Benjamin C. Thompson, Note, Personal foul…15 years in jail: sports’ problem with excessive violence and the severe punishment solution, 76 UMKC LAW REVIEW 769 (2008)

Patrick K. Thornton, The legacy of Johnnie Cochran, Jr.: the National Football League’s Rooney Rule, 33 THURGOOD MARSHALL LAW REVIEW 77 (2007)

 
More Discussion on Sports Journalism Ethics

NCAA Champion Magazine's Gary Brown wrote an interesting feature article titled, Truth Be Told?, which highlights the sports journalism ethics problem that I have been writing about extensively over the past several months. Here are some excerpts:

At no time in history have information, analysis and interpretation been so plentiful in sports journalism. In the last 30 years alone, USA Today has printed it, ESPN has televised it, the Web has synthesized it and talk radio has amplified it. While that feeds fans’ frenzy, the information arms race has turned sports reporters into personalities, columnists into entertainers and editors into marketing directors.
....

Greg Bowers, an assistant professor at the Missouri School of Journalism and sports editor of the Columbia Missourian, said sportswriters realized with ESPN’s emergence in the 1980s and the rise of the Internet in the 1990s that merely reviewing what happened on the field of play wasn’t as important since most of the audience already knew the outcome. “The old reason for buying the paper is gone,” he said. “What journalists are trying to do is create a new reason for buying the paper.” That has meant giving readers something unique, and that change has resulted in a bent toward writers offering more inflammatory commentary and becoming more visibly a part of the story – perhaps even crossing a line from reporting to entertaining. “The traditional game story died years ago,” Bowers said. “Offering depth and analysis and telling the behind-the-scenes stories is where sports journalism has gone. Whether it’s the right direction has yet to be determined.”
.....

Does the media environment naturally provoke reaction or is provocation itself the real aim? For some, [Penn State journalism professor Malcolm] Moran said, it’s the latter. “As the environment has become shrill, the only way some people think they can be heard above the din is to be even more shrill,” he said. “Many executives measure a columnist by the number of responses he or she gets. Some columnists are outraged by that premise, but others market themselves as contrarians.”
....

Whereas at one time sportswriter Dick Young was setting the agenda, now the brash, outrageous talk show host is. “And it’s risky,” Moran said, “because it’s not always journalism, but ratings-driven. The potential for manipulation and exploiting subject matter is a lot greater when you’re looking for ratings points.”

The rapidly changing delivery model of journalism in the 21st Century, the increasing competition among news sources, and the economic pressures and incentives (including the quest for ratings) is killing journalism ethics. As Brown mentions in his article, the essentials of journalism -- fairness, toughness and accuracy -- "are under duress in a time-to-fill environment." However, the First Amendment shield afforded the press in defamation, false light and privacy actions, and developed in an entirely different journalism environment over 40 years ago, provides today's profit-making press with little incentive to be concerned about journalism ethics principles. But arguably, the justification for the constitutional shield is getting weaker in this century as the press increasingly becomes less trustworthy.

Tuesday, October 21, 2008
 
Sports Law Symposium at Villanova University School of Law This Saturday

I look forward to joining Howard, Marc, Jeffrey Standen, and others at Villanova University School of Law this Saturday (Oct. 25) for the 2008 Villanova Sports and Entertainment Law Journal's sympsoium on "The House that Taxpayers Built: Stadiums, Speech, and Public Funding."

Here is information on the sympisium's two panels:

Panel 1: Public Financing and Potential Government Entanglement in Private Sport Stadiums (1:00 to 2:30 p.m.)

Panelists
  • Marc Edelman, Visiting Assistant Professor Rutgers University School of Law, Camden
  • Everett M. Johnson, Attorney, Wilentz, Goldman & Spitzer P.A.
  • Victor A. Matheson, Professor of Economics, College of the Holy Cross
  • Nick E. Sakiewicz, CEO & Operating Partner, Keystone Sports and Entertainment, LLC
  • Robert T. Miller (moderator), Associate Professor of Law, Villanova University School of Law
Panel 2: Stadiums as Public Spaces and the Application of the Public Forum Doctrine (2:45 to 4:15 p.m.)

Panelists
  • Michael McCann, Visiting Associate Professor of Law, Boston College Law School/Associate Professor of Law, Vermont Law School
  • Jeffrey Standen, Professor of Law, Willamette University College of Law
  • Howard M.Wasserman, Associate Professor of Law, Florida International College of Law
  • Catherine J. Lanctot (Moderator), Professor of Law Villanova University School of Law
For more information, click here.

 
MLBPA Claims to Have Evidence Baseball Teams Colluded Against Barry Bonds

ESPN recently reported that the Major League Baseball Players Association ("MLBPA") claims to have uncovered evidence that certain Major League Baseball teams colluded against Barry Bonds in violation of Article XX(E) of the Major League Baseball Collective Bargaining Agreement (CBA). Although the MLBPA has not made the alleged evidence public, this news is hardly surprising given that Bonds's agent Jeff Borris claimed earlier this year that he offered Bonds's services to "numerous" clubs for the major league-minimum salary of $390,000, but there were no takers.

Article XX(E)(1) of the CBA states as follows:
The utilization or non-utilization of rights [under Baseball's reserve system] is an individual matter to be determined solely by each Player and each Club for his or her own benefit. Players shall not act in concert with other Players and Clubs shall not act in concert with other Clubs.

Article XX(E)(2) then awards any player harmed by collusion the right to recover treble damages, including lost salary and lost contract years. This means that if but-for collusion Barry Bonds would have been able to sign a two-year, $10 million contract, Bonds would be able to recover up to $60 million (2 years * $10 million * 3) from the teams that colluded against his interests (presuming, of course, an arbitator finds collusion).

This is not the first time that the Major League Baseball clubs have allegedly violated the game's collusion clause. In the late 1980s, arbitrators on three separate occasions found MLB club owners liable for colluding against player interests. The clubs eventually settled those grievances by paying $280 million to the players union. Thereafter, in 2006, MLB club owners agreed to pay an additional $12 million to the union to settle collusion grievances from the 2002-03 off-season.

For those of you interested in a more detailed history of Baseball collusion, here is a law review article that I wrote on that topic several years ago for the Loyola of L.A. Entertainment Law Journal. In addition, I am putting the finishing touches on a new article entitled "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones." That article will appear in the Fall 2008 Wayne Law Review, and includes a brief section on the Bonds allegations.

(An abridged version of this entry was cross-posted on Sports Judge Blog)

Monday, October 20, 2008
 
2008 MLB Salary Report Card

Since 2005, I have been posting my Annual MLB Salary Report Card, which tends to prove each year a relatively weak correlation between a team's success and its total payroll. [Here are my past reports for 2005, 2006 and 2007.] This year's report leads to the same conclusion (based upon the USA Today salary database and rounded to the nearest million).

I've always thought that there is some threshold level of payroll by which a team is pretty much guaranteed to at least make the playoffs, but I was even proven wrong about that this year. The three teams with the highest payrolls in all of baseball -- Yankees ($209M), Mets ($138M) and Tigers ($138M) -- didn't even make the playoffs this year. [Note that these amounts do not reflect any luxury tax payments.] Last year, the Yankees spent about $20M less than they did this year but made the playoffs. Indeed, the Tigers keep spending more each year and keep doing worse. In 2006 they made the playoffs with an $83M payroll; in 2007 they failed to make the playoffs with a $95M payroll; and this year they finished last in the AL Central with a $138M payroll.

The team with the 4th highest payroll -- the Red Sox at $133M -- just got knocked out of the playoffs by the Devil Rays who advance to the World Series with the 2nd lowest payroll of $44M. And the Phillies advance to the World Series this year and are spending less than $100M with the 12th highest payroll. The Marlins had a very respectable year with the lowest payroll of $22M, finishing third in the NL East with an 84-77 record. But the Mariners really overpaid again this year -- they lost 101 games with a $118M payroll. And then of course there are the Twins who (once again) had a successful year with their low $57M payroll, finishing just one game behind the White Sox who spent more than twice as much ($121M) this year.

It's a shame to see the Indians spend more money this year than usual. Last year, with the 8th lowest payroll in all of baseball ($62M), Cleveland breezed through the AL Central by an 8-game margin and tied Boston for the best record in all of baseball. And in 2005 they had a 93-69 record with only a $42M payroll. This year they spend $80M and have a mediocre .500 season. Perhaps they'll go back to doing what works and lower their payroll next year.

Sunday, October 19, 2008
 
Seton Hall Sports Law Symposium

On November 7, the Seton Hall University School of Law Journal of Sports & Entertainment Law is hosting The 2008 Seton Hall Sports & Entertainment Law Symposium: From the Arena to the Streets - The Pressures Placed on Athletes, Entertainers, and Management. The event is being co-sponsored by the Entertainment, Arts & Sports Law Sections of the New Jersey State Bar Association and the New York State Bar Association, and attendees can earn up to five New York CLE credits.

Keynote Speaker:

Scheduled time: 1:15-2:15 P.M. with a short break following.

Jeff Vanderbeek, Chairman and Managing Partner, New Jersey Devils

Panel 1: Constructing and Operating Sport and Entertainment Facilities, presented by Lowenstein Sandler, PC

Scheduled time: 9:30-11:00 A.M.

Description: This panel will explore the legal and business issues related to constructing and operating public and private facilities.

Moderator: Mark Conrad, Assoc. Prof. of Business Law, Fordham University

Panelists:
Mark Stefanacci, Chief Operating Officer and Legal Counsel, New Jersey Sports & Exhibition Authority
Andrew Lee, General Counsel, New York Jets
Philip Weinberg, Executive Vice President and General Counsel, Comcast-Spectacor, LP
Michael Rowe, President and CEO, Positive Impact, Inc.
P. Jason Hadley, Counsel, Lowenstein Sandler PC

Panel 2: Health of Professional Athletes and Obligations to Perform

Scheduled time: 11:00-12:20 P.M., with lunch to follow from 12:20-1:15 P.M.

Description: This panel will explore legal issues related to the tension between athletes' obligations to play the game and to tend to serious injuries such as concussions.

Moderator: John R. Kettle III, Professor of Entertainment Law, Copyright & Trademark, & Intellectual Property, Rutgers-Newark Law School

Panelists:
Leonard Marshall, Retired New York Giants football player
Roger Abrams, Professor of Law, Northeastern University School of Law
Michael Weiner, General Counsel, Major League Baseball Players Association
Andrew Bondarowicz, Esq., Owner and President, The Aregatta Group, Inc.

Panel 3: Entertainers' and Athletes' Conduct Unrelated to Their Employment, presented by Norris, McLaughlin & Marcus, PA

Scheduled time: 2:15 - 3:45 P.M.

Description: This panel will explore legal issues related to how socially unacceptable conduct that occurs outside talent's business obligations impacts his/her contractual duties and success.

Moderator: Scott Shagin, Entertainment Lawyer, Music Manager, Adjunct Professor at Seton Hall University School of Law

Panelists:
Fernando M. Pinguelo, Esq., Partner and Chair of the Entertainment Law Group, Norris, McLaughlin & Marcus, PA
Rick Karcher, Assoc. Prof. of Law and Dir., Center for Law and Sports, Florida Coastal School of Law
Anthony Caruso, Esq., Partner and Chair of Sports & Entertainment Practice Group, Archer & Greiner, PC
Marc Edelman, Attorney and Visiting Professor, Rutgers-Camden Law School

Information on how to register for the event is here.

Saturday, October 18, 2008
 
Does anti-discrimination law require ESPN to suspend Lou Holtz over "Hitler" comments?

As I was trying to set up my TiVo to record last night's Hawai`i-Boise State game, I was, as most ESPN viewers at the time likely were, shocked to hear Lou Holtz observe, "Hitler was a great leader too." Holtz was commenting on Michigan coach Rich Rodriguez; his comments clearly upset co-hosts Rece Davis and Mark May. Davis immediately tried to explain away the comments--"by which you mean, of course..."--or something of that nature; and Mark May's sideways glance was a bit more wide-eyed than usual.

Pat at Fan IQ writes that there "HAD to be a better analogy." Deadspin covers the slip here, and suggests that Holtz may be "taking some time off." Holtz has already had to issue one on-air apology this week for his anti-Colt McCoy tirade, and another mea culpa is surely in the works.

A few months back, ESPN.com columnist Jemele Hill was suspended after comparing the Boston Celtics to the evil Nazi leader. If the network treats Holtz any differently, Hill should definitely contact an employment discrimination lawyer.

Friday, October 17, 2008
 
FCC as Race Car Sponsor?


Today's issue of Multichannel News reported that the Federal Communications Commission has decided to follow the lead of the U.S. Postal Service and become a sponsor of a team, in this case NASCAR driver David Gilliland, who agreed to use his No. 38 to display an advertisement trumpeting the conversion of the television signal from the sixty plus year old analog standard to digital. Gilliland, ranked 27th in the standings, recorded one top-5 and two top-10 finishes, with no speedway victories in 2008. He will receive $350,000 for the commission.

While I'm not criticizing the need the inform the public on the DTV conversion, one wonders about the implications of such a sponsorship. Since NASCAR Sprint Cup events are televised, their content, if you will, comes under the FCC's jurisdiction. Imagine the (admittedly) unlikely but interesting scenarios: Say that Gilliland's car gets bumped by another car, is forced off the track and the driver storms out screaming and cursing at the other driver. The words are picked up and violate the FCC's indecency policies. Wouldn't that be embarrassing for the FCC to impose fines on broadcasters because of actions by a driver which it sponsored? Or, what if Gilliland or one of his investors wishes to purchase a broadcast property and obtain a license from that same commission? Would they include the FCC as a reference?

Yes, this is potential tempest in a teapot. But I do get a bit antsy when administrative agencies get involved in commercial activities. Imagine the potential. How about naming rights such as the SEC Golf Cup or the EPA Clay Court Championship? Maybe it would be better if the National Association of Broadcasters or some other trade association sponsor the ad?

Thursday, October 16, 2008
 
Kansas State Raises the Compensation Bar of Assistant Coaches

While much is talked about the exorbitant salaries of college head coaches, Rivals.coms's Bob McClellan has done some interesting research on the salaries of assistant basketball coaches (Kansas State's Hill Earns Surprising Salary). McClellan found one contract that sticks out like a sore thumb -- that of Kansas State's Dalonte Hill who will now be earning $420,000 in total compensation annually for the next four years! For the next four years, Hill will receive a base salary of $150,000 and "additional compensation" of $270,000. According to McClellan, the salaries of the 12 assistants at the schools in last season's Final Four, which range from $125,000 to $265,000, pale in comparison to what Hill will be paid in 2008-09. McClellan interviewed one SEC assistant who said, "The number ($420,000) is staggering. It might be better for assistant coaches if he got $300,000 because then it's closer to what some guys make and you could see asking for something close to that. But that number is just so far out there I don't think any assistant would go in and ask for more."

So why is KS paying him almost $200k more than the next highest paid assistant coach and $300k more than most assistant coaches make? Apparently, it has something to do with Hill's recruitment of Michael Beasley, who McClellan says "made Kansas State basketball relevant for the first time in more than a decade last season, and his presence put a few extra dollars in the pocket of the man responsible for luring him to Manhattan, Kan." Hill was Beasley's AAU coach and Beasley referred to him "like a big brother." According to McClellan, KS athletic director Bob Krause told the Lawrence (Kan.) Journal-World that Hill put the K-State program on a different plane when he secured the signing of Beasley. Krause told the newspaper, "I'd hate to put a value on what the exposure, both print and electronic, has been on Michael. That's an identification with a guy who's a very strong advocate of K-State and, in his own words, will always be a part of the K-State family. Michael's love for K-State – it's priceless, just priceless."

Well, the exposure Beasley brings to KS is apparently worth at least two to three hundred grand per year. Perhaps Beasley is the one who should be renegotiating his contract with KS.

Wednesday, October 15, 2008
 
MLS and “New” Media (and the ice cream of the future)


The Sports Business Journal has an interesting article discussing DC United’s decision to develop and maintain its own website rather than use the centralized site created by the MLS (h/t to J Hutcherson over at ussoccerplayers.com). Why the move? Well, according to the article, one reason is the “growing impatience among MLS teams as the league continues to develop a digital strategy for the future.” Since the expiration of its agreement with MLB Advanced Media nearly two years ago, MLS “has never signed a new partnership or outlined a comprehensive digital strategy.”

A second reason? Like the New York Rangers, D.C. United feels it can do a better job than the league. The article quotes Doug Hicks, D.C. United’s vice president of communications: “We’re anxious to move forward with online opportunities…We feel the best way to brand and communicate with fans is to do it ourselves.”

A third reason? Unlike the New York Rangers—and any team in the NHL, NBA, or MLB— MLS teams can opt out of using the league’s centralized site.

Ceding the right to MLS teams to operate their own websites does not put much of a dent in MLS' claim to being a single entity. Certainly not like the dent made by the designated player rule. But, it is interesting to see the MLS decentralizing its “new” media while the NHL, MLB, and NBA are centralizing.

On a related note, when does “new media” simply become “media”? On a less related, but similar note, when do Dippin’ Dots, “the ice cream of the future,” just become “ice cream”? Dippin’ Dots were created in 1988. Are we in the “future” yet? And, how old does a song have to be before it gets played on the “oldies” station? Or, are there some songs that can never become “oldies” (I don’t envision hearing, “next on Oldies FM—Chubby Checker and a Nine Inch Nails rock block!). I wish I had answers. (Who says blogging isn’t a productive use of time??).

Monday, October 13, 2008
 
MSG New Media Antitrust Claim Survives Motion to Dismiss

While another NHL regular season has kicked off (faced off?) with relatively little fanfare, the MSG-NHL antitrust battle continues (see earlier posts by Marc here and here, and by Rick here). MSG can finally claim a victory, as Judge Preska denied the NHL's motion to dismiss with respect to the antitrust claims brought against its "New Media Strategy." Significantly, this case presents us with an opportunity to see if the single entity monster is out of the cage following the Seventh Circuit opinion in American Needle.

As Rick discussed, the Second Circuit affirmed Judge Preska’s denial of MSG’s motion for a preliminary injunction back in March 2008. MSG’s injunction challenged only the NHL’s New Media Strategy, which required, among other things, the migration of the MSG-owned Rangers’ website to an NHL-operated server. The Complaint filed by MSG, however, was much broader and challenged NHL restraints relating to four different categories: 1) merchandising and licensing, 2) broadcasting and streaming, 3) advertising and sponsorship, 4) and New Media.

In its motion to dismiss, the NHL raised two primary arguments. First, the NHL argued that all claims relating to the first three categories (ie, all non-New Media claims) were barred by a release in a Consent Agreement signed by MSG in 2005 (or, in the alternative, were barred by the doctrine of laches). Second, the NHL claimed that it constitutes a “single entity when deciding how to make and sell what only the venture can create” and thus is incapable of violating Section 1 of the Sherman Act (or, in the alternative, that MSG had failed to allege antitrust injury).

Judge Preska dismissed all of the non-New Media claims, finding that they were released pursuant to the Consent Agreement (and, in the alternative, were barred by the doctrine of laches). The Consent Agreement reads, in relevant part: “MSG forever releases and discharges [the NHL] from any and all claims…upon any legal or equitable theory [which] exist as of the date of the execution…relating to, or arising from, any hockey operations or any NHL activity, including, without limitation, the performance, presentation or exploitation of any hockey game….” Judge Preska held that the language of the release encompassed MSG’s non-New Media claims and that enforcement of the release would not violate public policy. In holding that the release does not violate public policy, Judge Preska essentially rejected the antitrust challenge to NHL’s various restrictions regarding merchandising, broadcasting, and advertising, concluding that the NHL’s “undisputed legitimacy diminishes the public policy concerns compared to those in the case of a Section 1 conspiracy whose very existence is unlawful, as in the case of a monopoly or price-fixing conspiracy.”

The New Media Strategy, however, did not exist at the time the Consent Agreement was signed, and thus was not barred by the general release. Judge Preska therefore had to determine if the single entity defense barred MSG’s New Media Strategy Section 1 antitrust claims. Although Judge Preska recognized that “[w]hat is essentially the same [single entity] argument has been rejected in a similar case by the Court of Appeals,” and that “[m]ost other Courts that have taken up the issue have reached the same conclusion,” Judge Preska concluded that the “Court need not—and will not—resolve the question at this juncture [because] the arguments advanced by the NHL in favor of single entity status require examining facts outside the pleadings.” In particular, Judge Preska noted that “there is no evidence in the record on the crucial question of market definition, let alone the inquiry into how the NHL actually operates as an economic actor in that market,” and “therefore the NHL’s arguments in favor of dismissal cannot be resolved at the pleading stage.”

Judge Preska’s brief discussion of the single entity question, however, does exhibit one of the more perplexing fundamental mistakes made by judges when considering the issue. Specifically, Judge Preska relied on the Fourth Circuit’s opinion in Seabury Management., Inc. v. Professional Golfers’ Ass’n of America, Inc., for support that the “PGA and a regional golfers association” constituted a single entity. Judge Easterbrook relied on the Seabury case for the same proposition in Chicago Pro Sports, Ltd. Partnership v. NBA, 95 F.3d 593 (7th Cir. 1996), and the NHL’s attorneys devoted an entire page to the case in their motion to dismiss.

The Seabury case, however, was brought against a trade association of professional golfers, the Professional Golfers’ Association of America. The case was not brought against PGA Tour, Inc., the producers of professional golf events in the United States. Contrary to what Judge Preska, Judge Easterbrook, and NHL counsel apparently believe, Seabury did not hold that a sports league or association and its member teams or tournaments constitute a single entity. Instead, Seabury only held that a trade association and a separately incorporated division of the association should be treated as a single entity for antitrust purposes because the two entities functioned as a “single economic unit.” Seabury thus lends little support to a sports league or association’s single entity argument.

Yet, Seabury continues to be cited as support for the single entity monster, which, for the time being at least (pending the next stage of this litigation) remains in the cage.*

*I believe the monster might be out of the cage with my use of the monster-out-of-the-cage expression. I blame (credit?) John Stearns (see description of Game 1).

Saturday, October 11, 2008
 
More on Baylor and Age Discrimination

Mike's post on the possibility (however remote) that Elgin Baylor was a victim of age discrimination reminds me of some things I wrote after the $10-million verdict against the Knicks and Isiah Thomas for sexual harassment. I criticized the NBA's refusal to take any action action Thomas or the Knicks, and particularly its rationale that this simply was a "civil matter."

At the time, I asked the following:

Suppose a white team executive fired his Black head coach because of the coach's race and explicitly used racial slurs in doing it and the coach prevails on a race discrimination claim, recovering major compensatory and punitive damages. Would Stern really do nothing to the executive because it is a "civil matter"? And what is the difference from what happened here? Is it a matter of coach as opposed to a non-basketball executive?


Age discrimination does not carry the same social outrage as race discrimination. But if Baylor does pursue this and prevails, maybe we are about to get some answers to my questions.

 
Was Former LA Clippers Executive Elgin Baylor Discriminated Against Because of Age?

I attempt to answer the legal implications of that question on ClipperBlog, which is run by ESPN.com's Kevin Arnovitz. Hope you have a chance to check it out.

Tuesday, October 07, 2008
 
Job Opportunities in Sports Law

Clay Chandler of the Mississippi Business Journal recently interviewed me to discuss the different kinds of sports law careers and how while a career in sports law is commonly viewed as a career as a sports agent, there are a variety of sports law fields that go less noticed -- sports litigation, NCAA compliance work, IP work work at a firm that involves sports law, working as counsel to a team, including a minor league team etc. Hope you have a chance to check out the article and please feel free to give your thoughts on careers in sports law in the comments section below.

 
Luke Walton Stalked by Woman

When the subject of "stalking" comes up, normally it's in the context of a male stalking a female. But with celebrities, it often seems to be the other way around, with the male being stalked by a female--David Letterman being stalked by Margaret Mary Ray and Richard Gere being stalked by Ursula Reichert-Habbishaw being two prime examples.

We can now add to that list a lesser-known celebrity, but one we're familiar with in the sports world: Los Angeles Lakers reserve forward Luke Walton (who of course is the son of Hall of Famer Bill Walton). Kevin Ding of the Orange County Register wrote a piece today on the tremendous amount of stress, anxiety, and life disruption Walton has experienced over the last year because a 34-year-old woman named Stacy Beshear has stalked him. Here is an excerpt from what Walton has had to deal with:
According to Walton, she sat in her car outside his house too many times to count – sometimes staying there when he left the house during the day, sometimes staying there when he went to sleep at night. She marked up his car with a Sharpie one time when he was too busy to sign an autograph.

She morphed into a race-car driver anytime Walton tried to elude her. She eyed him from the bleachers as he ran his basketball camp – sitting there for four consecutive days, seven hours per day. She even dared to approach his girlfriend.

Then a week and a half ago, she contorted her face in anger, stuck her arm out her car window, curled her hand to make it look like a gun and shot make-believe bullets at him.

Thankfully, police arrested Beshear on stalking charges, and a court issued a temporary restraining order prohibiting her from going near Walton. On November 6th she'll appear before a court on those charges and if convicted, the restraining order against her will be extended indefintely. We'll see what happens. For the rest of the story, which is a fascinating read, click here.

Monday, October 06, 2008
 
Monday Morning Sports Law

Some Monday morning links:

* Pete Thamel of the New York Times has a really interesting piece on how Brandon Jennings--the 19-year-old American basketball star who opted to play professionally Italy while waiting to become eligible for the NBA Draft--is doing in Rome. Long story short: he, his mom, and younger brother appear to be doing great. Jennings is apparently making around a million dollars this year, after tax, between basketball and endorsement income (check out Darren Rovell's CNBC piece on Jennings' lucrative endorsement deal with Under Armour -- Jennings stands to earn more in endorsement income this year than any pick from the 2008 NBA Draft, save for the top three players selected, Michael Beasely, Derrick Rose, and O.J. Mayo). 19 years old, a million bucks to play hoops, and getting to live in luxury in Rome with his family -- Jennings' life sounds pretty good to me. Along those lines, Jennings and his family are living in a luxury apartment that is paid for by his team, Lottomatica Roma, while his brother is attending an elite private school for international students, his $20,000 a year tuition also paid for by the team.

* Pete Thamel with another interesting piece on how the NBA's age limit might lead to high school players going to Europe instead of going to college. Given Jennings' very appealing situation described above, it's not surprising to think that some players who graduate from high school in 2009 may follow him. Alan Milstein recently blogged about this same topic on Sports Law Blog.

* Robb Stokar over at Athletes Access Blog writes about Travis Henry's recent arrest on drug charges.

* I have a new column on SI.com on the implications of O.J. Simpson's guilty verdict. My thanks to Professor Mark Obbie and the Carnegie Legal Reporting Program at Syracuse University's Newhouse School of Communications for their kind words about my column in their piece "O.J. Sentencing Math: SI Wins". I also thank Professor Douglas Berman of the Moritz College of Law at The Ohio State University for his nice words on his Sentencing Law and Policy Blog.

Sunday, October 05, 2008
 
Chicago Cubs and the Curse of Legal Formalism

On Saturday night, the Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs' last championship, 1908 also was the centennial of one of the game's most infamous gaffes, by Fred "Bonehead' Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York's Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants' Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O'Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series--their last.

And here we have legal formalism at work. O'Day's call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle's decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly enforced. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire--it did not work then because the umpire had not watched to see whether the runner touched second. But O'Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the "tainted" victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year--and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance--not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism--make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

Wednesday, October 01, 2008
 
New Sports Law Scholarship

Recently published scholarship includes:
Ashley J. Becnel Student article, Friday night lights reach the Supreme Court: how a case about high school football [Brentwood] changed the First Amendment, 15 SPORTS LAWYERS JOURNAL 327 (2008)

Brett Celedonia, Student article, Flying objects: arena liability for fan injuries in hockey and other sports, 15 SPORTS LAWYERS JOURNAL 115 (2008)

Kristin Jo Custer, Note, From mice to men: genetic doping in international sports, 30 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 181 (2007)

Jonathan B. Goldberg, Player mobility in professional sports: from the reserve system to free agency, 15 SPORTS LAWYERS JOURNAL 21 (2008)

Hannah Gordon, Student article, The Robinson rule: models for addressing race discrimination in the hiring of NCAA head football coaches, 15 SPORTS LAWYERS JOURNAL 1 (2008)

Andrew P. Hanson, Student article, The trend toward principled negotiation in Major League Baseball collective bargaining, 15 SPORTS LAWYERS JOURNAL 221 (2008)

Tyson E. Hubbard, Student article, For the public’s use? Eminent domain in stadium construction, 15 SPORTS LAWYERS JOURNAL 173 (2008)

Jeffrey F. Levine, A golden opportunity for global acceptance? How hosting the Olympic Games impacts a nation’s economy and intellectual property rights with a focus on the right of publicity, 15 SPORTS LAWYERS JOURNAL 245 (2008)

Robert I. Lockwood, Student article, The best interests of the league: referee betting scandal brings commissioner authority and collective bargaining back to the frontcourt in the NBA, 15 SPORTS LAWYERS JOURNAL 137 (2008)

Melissa Neiman, Protecting professional boxers: federal regulations with more punch, 15 SPORTS LAWYERS JOURNAL 59 (2008)

Michael D. Tucker, Student article, Exploring the Copperweld analysis in Kentucky Speedway: single entity treatment for NASCAR and International Speedway Corporation 15 SPORTS LAWYERS JOURNAL 99 (2008)

Alexis E. Quinones, Unique industry, unique relationship, unique perspective: a quick look at some issues of Puerto Rican sports, 15 SPORTS LAWYERS JOURNAL 195 (2008)

Victoria J. Siesta, Note, Out at home: challenging the United States-Japanese Player Contract Agreement under Japanese law, 33 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1069 (2008)

Avi Sinensky, Comment, Not that there is anything wrong with that: the practical and legal implications of a homosexual professional athlete, 10 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS & EMPLOYMENT LAW 1009 (2008)

David C. Weiss, Student article, How Terrell Owens, collective bargaining, and forfeiture restrictions created a moral hazard that caused the NFL crime wave and what it meant for Michael Vick, 15 SPORTS LAWYERS JOURNAL 279 (2008)

 
Catching Up With "Failed" Prep-to-Pro Jonathan Bender

A couple of years ago, I blogged on the retirement of Jonathan Bender from the NBA ("Not Being Randy Livingston: The Jonathan Bender Story"). Bender, routinely cited as a failed high schooler-turned-NBA player, retired at age 25, due to chronic knee problems. During his NBA career, which spanned six seasons after being the 5th overall pick in the 1999 NBA Draft out of Picayune (Mississippi) Memorial High School, Bender earned about $30 million.

Anna Katherine Clemmons of ESPN The Magazine recently caught up with Bender. Since retiring from the league, Bender has become a different kind of player -- one instrumental in the rebuilding of New Orleans. He has also wisely invested the money he earned and has become a successful businessman. Here is an excerpt from Anna's excellent article:

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Along with his entrepreneurial mind, Bender felt compelled to give back, one of the many lessons [father-figure] Billy Ray Hobley had taught him. Bender had bought a home in the New Orleans suburb of Kenner in 1999, in part to be closer to Hobley (who died of a heart attack in 2002) and his grandmother, Cora, who still lived in Picayune.

Returning to New Orleans four years later, Bender began his Foundation, which focuses on providing disadvantaged children the tools to address their educational, health and social needs.

When Bender's Foundation adopted Joseph S. Maggiore Elementary School, Bender bought and distributed Christmas presents to the 430 students. But he also plans to establish an after-school program he named "Being Busy and Cool After School," where students will have 30 minutes of tutoring followed by lectures from professionals discussing their careers. Bender offered up the example of glass blowers, saying, "Most of these kids don't know that there's a career in blowing glass. They may say, 'I like that, that's what I want to do.' I want to help them identify their passion and work toward it."

The Foundation is just one of Bender's many endeavors. Some of his many others include: an Italian wine imports company; investment in several high-end real estate projects; inventing and seeking a patent on a fitness device he's calling Bender Bands; owning part of an island and some commerical property in the Caribbean; owning Studio 5504, a New Orleans recording facility; and running free basketball clinics for teens in the New Orleans region. He wants to start a mentor program for NBA rookies, and he's developing a reality show, "Brand New Orleans," based on his projects.

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For the rest of the article, click here. For a law review article I wrote a few years back on high schoolers and the NBA, check out "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."

 
Court Orders Rehearing in CDT Case

The New York Times reports that yesterday a federal appeals court ordered a rehearing of a 2006 ruling of the Ninth Circuit Court of Appeals in the case of United States v. Comprehensive Drug Testing, Inc. (CDT). In 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. During the search, the government seized a computer directory containing all of the computer files for CDT's sports drug testing programs. The computer directory contained numerous subdirectories and hundreds of files, and agents removed copies of the files for later review at government offices. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players. Using information culled from the computer directory, the government then applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

The Ninth Circuit ruled in a 115-page opinion that the government had legally obtained the evidence, which I heavily criticized in a post saying "this decision can't be the right result." I'm glad to see that there is going to be a rehearing because this ruling has much broader implications than affecting a few athletes who allegedly tested positive for steroids. This ruling impacts each and every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers one way or another (hospital records, employment records, etc.).