Sports Law Blog
All things legal relating
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Saturday, November 29, 2008
 
The Press Provokes Unnecessary Controversy Between LeBron James and Charles Barkley

Does today's journalism environment naturally provoke reaction or is provocation itself the real aim? Today's attention-grabbing news headline (and it's all over ESPN this morning), "LeBron James Calls Barkley 'Stupid' for Criticizing Him," demonstrates that oftentimes it's the latter. Apparently, Charles Barkley commented on Dan Patrick's radio show that James isn't showing respect for Cleveland fans and his teammates by discussing his possible free agency following the 2010 season, and said "If I was LeBron James, I would shut the hell up." Thereafter, an AP reporter cornered James to provoke a response to Barkley's comment, to which James responded, "He's stupid." In tomorrow's paper, we will undoubtedly hear about what Barkley has to say about James' response. Oh boy, I can hardly wait.

Forget about who is right or wrong in this media-created tiff. Is this a proper function of journalism? Does journalism ethics even exist today? (and I don't mean to ask that question cynically) Some would dismiss journalism ethics as creating ambiguous standards. Some would say journalism ethics are outdated concepts in an internet/technology era. Some would say the press is just giving the public what it wants. Some would say that this is information and, therefore, the public should have it (even if it is purely entertainment, in other words, "infotainment"). Some would go so far as to say that journalism ethics is a meaningless topic in light of the First Amendment. And some have no idea what journalism ethics issue is even at issue in this press release. As noted by the Committee of Concerned Journalists:

“Journalism is a form of cartography: it creates a map for citizens to navigate society. Inflating events for sensation, neglecting others, stereotyping or being disproportionately negative all make a less reliable map....a journalism overwhelmed by trivia and false significance ultimately engenders a trivial society.”

In my recent law review article titled, "Tort Law and Journalism Ethics," which will be published by Loyola University Chicago Law Journal in the spring, I discuss the negative impact of the proliferation of tabloid journalism into the mainstream news media and how today's tabloid journalism oftentimes seeks to promote and instigate negativity and negative reactions among the subjects of the article as well as the readers of the article. Here, the press is primarily motivated by one thing: to provoke an unnecessary controversy. The media pits James against Barkley, causing readers to join in the negativity and to ultimately draw a conclusion that one of them is right and the other is wrong (i.e. that either Barkley is right that James should "shut the hell up" or that James is right that Barkley is "stupid"). What does society gain from exposure to such negativity and bickering? Unfortunately, as long as today's profit-driven mainstream news media is primarily motivated by advertising dollars and a quest for ratings it will keep feeding us more of it in the form of infotainment.

Wednesday, November 26, 2008
 
Thoughts on Indiana

A couple of thoughts on the NCAA's decision to drop the hammer on Kelvin Sampson, but less so on Indiana, particularly in sparing the Hoosiers from a post-season ban (of course, Indiana is not going to the post-season anytime soon, so the end result is the same).

The NCAA arguably directed punishment in the right place--the recidivist coach who blatantly and willfully broke the rules--rather than the current coach and players who played no role in the misconduct. The NCAA enforcement has been criticized for setting up a scheme in which a coach can cheat at one school, get out of town (often one step ahead of the NCAA posse) and into a new job, leaving his former school to pick up the pieces. But Sampson, not Tom Crean, is the guilty party, so it makes more sense for the NCAA to focus its sanctions on him. Of course, the penalty is largely meaningless. Sampson now is an NBA assistant and likely quite happy to stay there. And, penalty or not, no university president in her right mind would hire Sampson (certainly not within five years, when memories are fresh), because he is not that good a coach as to run the risk of dealing with his misbehavior.

The limit on the above point is that Indiana was not innocent in all of this; the NCAA found the university guilty of "failing to monitor," although not of the more serious "lack of institutional control." Indiana's most obvious failure was hiring Sampson in the first place, despite his being presently under sanctions for breaking NCAA rules.

This brings me to my second point. On ESPN last night, studio commentator Doug Gottlieb defended IU by saying, in essence, the school could not have predicted that Sampson would engage in the exact same misconduct because no one does that. Umm, Mr. Gottlieb, meet Federal Rule of Evidence 404(b). Under ordinary rules of evidence, "prior bad acts" cannot be used to prove current conduct (i.e., "A did X in the past, so you may find that A did Y now"). But FRE 404(b) does the use of prior acts to establish certain facts, such as knowledge, motive, or intent. Under FRE 404(b), the following line would work to prove failure to monitor: "Indiana knew that Sampson had committed these infractions in the past, so it had some knowledge that he might commit them again in the future, but it hired him anyway." But that line of inference would be permitted only if there was some degree of similarity between Sampson's past and current infractions. In other words, the law assumes that people will, in fact, engage in the exact same misconduct and the law allows its evidentiary use only if the misconduct is similar enough.

Finally, for sanctions against individual coaches to have real teeth, the NBA would have to come on board and agree to penalize coaches who cheated while coaching in college. As noted, Sampson does not care about a five-year ban on coaching in college because he probably is quite happy (and doing quite well) as an NBA assistant. Obviously this will not happen for a variety of reasons, some of them sounding in federal antitrust law. But how punished is Sampson if, less than a year after bringing down one of the storied and historically cleanest college programs, he is safely ensconced in a coveted coaching job?

Tuesday, November 25, 2008
 
New Developments in Alleged DNA Evidence Against Roger Clemens

I have a new SI.com column out on Roger Clemens and the syringes and other materials provided by Brian McNamee that McNamee claims contains Clemens' DNA. According to today's NY Times and the NY Daily News, federal prosecutors have requested and received the evidence from McNamee and have found readable DNA. Hope you have a chance to check out my column.

 
American Bar Association Journal Features Sports Law Blog

Our thanks to the ABA for featuring Sports Law Blog as "This Week's Featured Blawg." For those who have discovered us through the ABA, we hope you like what you see. Thanks for visiting.

 
Indiana University Largely Escapes NCAA Punishment for Kelvin Sampson's Infractions

Mark Alesia of the Indianapolis Star has the story:

Indiana University will receive three years probation from the NCAA for recruiting violations under former men's basketball coach Kelvin Sampson but will not be further penalized, sources close to the investigation told The Indianapolis Star today.

The infractions committee accepted IU’s self-administered sanctions, including a loss of a scholarship for this season and extended recruiting limitations, as sufficient. The school was found guilty of “failure to monitor” the program, said a source who has read the NCAA’s report, but the committee used softer language than in the original accusation.

Sampson, now an assistant with the NBA’s Milwaukee Bucks, was given a five-year “show cause” penalty, which essentially prevents NCAA schools from hiring him. Rob Senderoff, a former IU assistant and now an assistant at Kent State, was given a three-year show case penalty. It’s not yet clear how he will be affected.

The official announcement will come in a teleconference with reporters at 4 p.m. today.

“I don’t want to say it’s a reprieve for Indiana, but they’re being seen by the NCAA as much less culpable,” said Michael McCann, a sports law expert from Vermont Law School. “Maybe this is their reward for being forthcoming, and it’s a message to other schools: be honest and you won’t be punished nearly as much. The steps Indiana took appear to be the right ones.”


For the rest of the story, click here. Andy Katz also has a good story here.

Monday, November 24, 2008
 
Can Letters of Intent have Opt-Out Clauses Should Coach Quit?

Over on Truth on the Market, George Mason Law Professor Joshua Wright (who's visiting at the University of Texas Law School this year) has an outstanding post on prep basketball star DeMarcus Cousins, who is seeking an opt-out clause in his letter of intent with University of Alabama Birmingham for the possiblity of UAB head coach Mike Davis jumping ship.

Here's an excerpt from Josh's post:

* * *

For those unfamiliar, college recruits in football, basketball and some other sports sign National Letters of Intent (NLI) committing themselves to spend at least one full year at the college. The NLI gives the school the option of allowing a player who wishes to leave to do so without penalty. The default, however, is that the school does not release the player. The student-athlete can still transfer of course, but must incur the penalty of sitting out a full year at his next school plus losing a year of eligibility. In these days of the coaching carousel, one reason that players commonly switch schools is because a coach is fired or leaves for greener pastures. However, [SI's Seth] Davis reports that the NLI explicitly states that a coaching change is not grounds for nullifying the agreement.

Which brings us to DeMarcus Cousins, a heavily recruited basketball prep star who wants to stay near home and play for University of Alabama-Birmingham (UAB). Here’s the contract twist. Cousins has choices further up the college basketball food chain and is going to UAB largely because of the coach, Mike Davis (formerly of Indiana University). As such, Cousins figured out that he wants some insurance that UAB will release him without penalty if Davis leaves and wants language representing as much in the NLI. Here’s another twist. Davis may have made a promise to Cousins to do exactly that. . . .

Assuming Davis has apparent or actual authority to make such a promise on behalf of UAB, this puts the school in a tough spot from a practical if not legal perspective. I’m guessing that UAB caves here.

* * *

For the rest of this must-read post, click here. For the referenced Sports Illustrated column by Seth Davis, click here


 
Some counts against Bonds dropped

United States District Judge Susan Illston dismissed three of the fifteen counts and consolidated two others against Barry Bonds today, although 11 counts (10 perjury, one obstruction of justice) remain in place. Not a big deal; it sounds like she was just cleaning up the indictment to avoid duplicative counts or counts in which either the initial question was ambiguous or the answer was too vague as to reasonably produce a knowingly false statement. Bonds still faces a big struggle.

Thursday, November 20, 2008
 
MLB, Japanese Baseball, and US Antitrust Law

Today’s NY Times has an interesting article about Junichi Tazawa, the 22-year old Japanese pitching star. Tazawa first drew attention for his 97-mph hour fastball, but has now become the center of controversy because he is the first notable amateur Japanese baseball player to entertain offers from Major League Baseball teams before playing for or even signing with a Japanese team. Japanese baseball officials are worried about future Japanese stars following suit and therefore draining the talent pool from Japanese professional baseball, possibly threatening the viability of Nippon Professional Baseball (MLB’s Japanese counterpart).

According to the article, “[m]any Japanese baseball officials are outraged that United States teams are courting Tazawa.” Why the outrage? Because the Japanese officials “insist it is long-established practice for amateurs like him to be strictly off limits to (U.S.) major league clubs.” According to a press release from Nippon Professional Baseball: “This was more than just a gentlemen’s agreement, but rather an implicit understanding that the major leagues would do no such thing…. That a handful of clubs from the majors is trying to break this gentlemen’s agreement is truly regrettable.”

The article also notes that Yankees General Manager Brian Cashman acknowledged the existence of some form of agreement:

“I’m old school — there has been an understanding,” said Cashman, whose team has a formal cooperative relationship with the Yomiuri Giants, a team particularly upset with the Tazawa affair. “There’s been a reason that Japanese amateurs haven’t been signed in the past, so we consider him hands off.”

As the article also points out,

The protocol agreement between Major League Baseball and Nippon Professional Baseball does not address the signing of either nation’s amateur players. It does formalize how Japanese veterans may switch continents: on the open market after nine seasons in the Japan major leagues, or earlier if a player’s club chooses to auction off his rights through a procedure commonly known as posting. Posting was established in 1998, and established stars like Daisuke Matsuzaka have generated as much as $51 million for their Japanese clubs. Losing top amateurs could hurt that pipeline.

An unnamed Major League Baseball official apparently “angrily rebutted” the notion that any agreement existed that prevented MLB teams from signing amateur Japanese players (and vice versa). Why the “angry” rebuttal? Well, if such an agreement did exist, it would likely be a violation of Section 1 of the Sherman Act, as it is a classic group boycott (and a horizontal market division). The best way for MLB to avoid Section 1 liability in this case may simply be to argue that there is no agreement between MLB and Japanese baseball. Without an agreement, there can be no violation of Section 1. That argument obviously becomes more difficult to make, however, when the general manager of one of MLB’s marquee franchises publicly admits that an agreement does in fact exist.

What about the baseball antitrust exemption? Well, there is an argument (albeit a weak one) that, after the Curt Flood Act of 1998, the baseball antitrust exemption no longer exists. Assuming it does exist, however, what is the impact of the exemption and the Curt Flood Act on a possible suit brought against MLB in this context?

Well, the Act states, in relevant part:

Section 27(a) Subject to subsections (b) through (d), the conduct, acts, practices, or agreements of persons in the business of organized professional major league baseball directly relating to or affecting employment of major league baseball players to play baseball at the major league level are subject to the antitrust laws to the same extent such conduct, acts, practices, or agreements would be subject to the antitrust laws if engaged in by persons in any other professional sports business affecting interstate commerce.

Section 27(b) No court shall rely on the enactment of this section as a basis for changing the application of the antitrust laws to any conduct, acts, practices, or agreements other than those set forth in subsection (a). This section does not create, permit or imply a cause of action by which to challenge under the antitrust laws, or otherwise apply the antitrust laws to, any conduct, acts, practices, or agreements that do not directly relate to or affect employment of major league baseball players to play baseball at the major league level, including but not limited to -
1) any conduct, acts, practices, or agreements of persons engaging in, conducting or participating in the business of organized professional baseball relating to or affecting employment to play baseball at the minor league level, any organized professional baseball amateur or first-year player draft, or any reserve clause as applied to minor
league players.


Does the agreement (assuming, for the sake of argument, that one exists) between MLB and Japanese baseball implicate Section 27(a), 27(b)(1), or both? I don’t think it matters. I think a court would reject application of the baseball exemption simply because MLB has entered into an agreement with a non-MLB party. Courts—before and after the Curt Flood Act—have only applied the baseball antitrust exemption when the agreement at issue exclusively involved MLB-related entities. Thus, regardless of one’s view of the scope of the Curt Flood Act, I think any agreement between MLB and Japanese baseball would be subject to scrutiny under Section 1, so Brian Cashman may want to choose his words more carefully in the future…

Tuesday, November 18, 2008
 
President-elect Obama and College Football Playoffs

Tim Lemke of the Washington Times examines President-elect Barack Obama's desire for college football to adopt a playoff system.

Tim interviewed me for the story, which covers the economic, legal, and political angles of the President-elect's apparently genuine interest in reforming college football's post-season. Here's an excerpt:

* * *

It's unclear how serious Obama is about the issue, and he has offered no specific plan of action nor promised he would push for action. But he has addressed the issue on multiple occasions.

"I'm going to throw my weight around a little bit," he said in the "60 Minutes" interview.

If, however, Obama did press the issue, he would have a number of options available to him, legal experts said - though they cautioned that few of them had strong legal backing.

For instance, they said Obama could potentially attempt to impose an executive order on the NCAA to create a playoff. But such a measure likely would be shot down because the NCAA has repeatedly defended its status as a private institution.

Obama also could ask the Justice Department to explore whether the BCS is a violation of antitrust law on grounds that the system often excludes teams from non-major conferences.

"I haven't seen a compelling argument," said Michael McCann, a professor at Boston College Law School and a contributor to Sports Illustrated. "I've seen different arguments offered that all seem somewhat flawed."


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

Note 1: The really cool photo above was taken by Rick Bowmer of the Associated Press. Note 2: Be sure to see Frank The Tank's excellent commentary on a college football playoff system.

 
IMG Intercollegiate Athletics Forum (Dec. 10-11)

On December 10th and 11th, Street & Smith's SportsBusiness Journal and SportsBusiness Daily will host the seventh annual IMG Intercollegiate Athletics Forum at the InterContinental, The Barclay in New York City.

A "must-attend" for anyone involved in the business of college sports, the IMG Intercollegiate Athletics Forum is the one-time each year the NCAA leadership, athletic directors, university presidents, conference commissioners, media partners and corporate sponsors collectively discuss their mutual issues in college sports. It is also a great networking opportunity for those interested in pursuing a career in collegiate athletics. I am looking forward to participating on a panel with representatives speaking on behalf of the NCAA, the Knight Commission on Intercollegiate Athletics, the University of Texas and the Fantasy Sports Association. We will be discussing the unauthorized commercial exploitation of student-athletes by corporate conglomerates profiting from the sale of fantasy sports league products.

The agenda and registration information can be found at the above link.

Monday, November 17, 2008
 
Mark Cuban Accused of Insider Trading

I have a new SI.com column on Mark Cuban being sued today by the Securities and Exchange Commission on insider trading charges. I hope you have a chance to check it out.

I'll also be interviewed on Houston 790 AM tomorrow at 9:05 a.m. EST to discuss the charges.

Update Tuesday: I'll be on the Dan Patrick Show at 9:35 a.m. to discuss the charges.

Saturday, November 15, 2008
 
Brandon Jennings Update and NBA's Age Limit

Luis Fernández and Jonathan Givony of DraftExpress have an update on Brandon Jennings--the 19-year-old American basketball star who opted to play professionally Italy while waiting to become eligible for the 2009 NBA Draft. In addition to living in a rent-free luxury apartment in downtown Rome, among enjoying many other perks, Jennings is earning around $1 million this year, after tax, between basketball and endorsement income (in fact, he 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).

According to
Fernández and Givony, Jennings has played generally well thus far. And according to the very early predictions of both DraftExpress and NBAdraft.net, Jennings projects to go 7th overall in the 2009 NBA Draft. If those predictions prove accurate, Jennings stands to earn about $8 million in salary in his three NBA seasons, plus whatever endorsement income he earns.

Jennings' eligibility to play college basketball this season was undetermined at the time he signed a contract to play in Italy (he was waiting for the results on his SAT exam), so it remains to be seen whether he proves to be a test case for star high school basektball players skipping college and going to Europe while waiting to satisfy the NBA's one-and-done rule, which requires that a player be 19 years of age plus one year removed from high school in order to be eligible for the draft.

But it will be interesting to follow.

Related Recent Post: NY Times Examines NBA's Age Limit and Youth Basketball (story on Renardo Sidney, the basketball phenom thinking of skipping college and going to Europe).

Thursday, November 13, 2008
 
New Orleans, Gambling, and the NBA


The Times-Picayune has an interesting story up about Phil Jackson’s reaction to an advertisement for Harrah’s New Orleans Casino in the visiting locker room in the New Orleans Arena. Here’s what Jackson said:



We talked about this last year….We thought it wasn't a good message at all. One side of it says don't gamble, and the other side you are advertising for it….This is a franchise that is led by a good Christian leader. He has prayer(sessions) before the games. I'm sure he knows what he's doing.


This raises a number of interesting questions. There is no question that Tim Donaghy’s actions directly threatened the integrity of basketball. You won’t find many people arguing that NBA players or referees should be allowed to bet on an NBA game, even one they are not playing in or officiating. You also won’t find many people arguing that NBA players or referees should be allowed to engage in illegal activity. Both types of behavior harm the image of the game and it is understandable that the NBA would take action to prevent such behavior. It is certainly absurd to think that an NBA team would place an advertisement for a sports book (or a drug dealer) in an NBA locker room. But, what about an advertisement for legal activity that does not violate any NBA rules? In other words, what about an ad for Harrah’s Casino in New Orleans?

One cannot place bets on sporting events in the Harrah’s Casino in New Orleans, and all of the other forms of gambling that take place in the casino (slot machines, poker, blackjack, craps, roulette, etc.) are legal. The casino is prominently located just outside of the French Quarter, is a major sponsor of the Hornets, is frequented by thousands of tourists per day, and houses one of the top (if not most expensive) restaurants in New Orleans.

What, precisely, is Phil Jackson’s concern? Is he concerned with the possibility that NBA players may lose large sums of money legally gambling in the casino, and therefore be more tempted to gamble on NBA games? Is he concerned with the possibility legal gambling in a casino is a gateway to illegal gambling? Or, is he concerned with all forms of gambling? In other words, is Jackson drawing a line between acceptable and unacceptable behavior, with all forms of gambling falling on the unacceptable side of the line? If so, is that an appropriate line to draw? Jackson might argue that the line is appropriate because the Donaghy scandal is the NBA’s Black Sox scandal, so any appearance of impropriety or association with impropriety must be eliminated to protect the sport. But, is the Donaghy scandal really the modern-day equivalent of the Black Sox scandal? Perhaps this is a credit to David Stern and the rest of the NBA front office, but the story seems to have disappeared from the headlines pretty quickly. And, even if the Donaghy scandal is a modern-day Black Sox Scandal (or Black-Sox Lite, or Black-Sox Zero, as Coke might call it), is there a problem with NBA players playing poker in a card room in a Harrah’s Casino, in the very same card room where ESPN has televised poker tournaments?

 
Trevor Hoffman Doesn't Get a Gold Watch from the Padres

It would be interesting to hear from any sports agent readers of this blog on their reaction to how the San Diego Padres informed Trevor Hoffman--who's pitched for the Padres for the last 15 years--that his contract offer to pitch next season had been rescinded:
The Padres informed Hoffman not in person with a one-on-one conversation, or a hand-written note, or even with a phone call

Instead, they sent his reps a fax.

Gotta think the Padres could have handled this one better.

Monday, November 10, 2008
 
Retired NFL Players Win Suit Against NFLPA

According to an AP report, the jury awarded the class of retired NFL players $28.1 million in damages—including $21 million in punitive damages— in its suit against the NFL Players Association.


As the report notes:

Hall of Fame cornerback Herb Adderley filed the lawsuit last year on behalf of 2,056 retired players who contend the union failed to actively pursue marketing deals on their behalf with video games, trading cards and others sports products.

Lawyers representing Adderley and the retired players told the jury during the nearly three-week trial that the union actively sought to cut them out of licensing deals so active players could receive bigger royalty payments. As proof, the retirees pointed to a 2001 letter from an NFLPA executive telling Electronic Arts Inc. executives to scramble the images of retired players in the company's popular ''Madden NFL'' video game, otherwise the company would have to pay them.

More on this to come…


Saturday, November 08, 2008
 
Spies are Among Us

Ironically, on the same day that I'm at Seton Hall University School of Law (yesterday) speaking about the overly broad discretion afforded the commissioner under the NFL's personal conduct policy implemented by Roger Goodell last year, the Wall Street Journal's Hannah Karp published a really interesting piece on how NFL teams are now spying on the players off the field (Why the NFL Spies on its Players, 11/7/08). Karp reports: "To guard against these unpredictable suspensions (there have been 10 so far), NFL teams are hiring former police officers and FBI agents as security chiefs, ordering up extensive background checks, installing video-surveillance systems in locker rooms, chasing down rumors and sometimes forbidding players from talking to the press. During a recent road trip, the San Diego Chargers not only conducted bed checks, but placed guards in the hotel hallways to make sure players didn't sneak out. The Seattle Seahawks have declared an entire downtown entertainment district off-limits, and the Denver Broncos have begun sending a former cop to local nightclubs on weekends to make sure the players behave."

Karp notes that the players are getting fed up with it and are speaking out against the new conduct policy:
The increased scrutiny has taken a toll on some players, including Broncos defensive tackle Marcus Thomas. Last year, after the policy was announced, Mr. Thomas had called his agent in a panic: He said he was convinced he was being followed by "a white man in sunglasses" who had been sent by the NFL. A league spokesman says NFL security did not follow Mr. Thomas.
Offensive lineman Langston Walker of the Buffalo Bills, who has an economics degree from the University of California at Berkeley, is no fan of the new code, which he considers too aggressive. When someone intentionally spilled a drink on him at a Los Angeles bar recently, Mr. Walker says he was worried about how the NFL's discipline czars might have reacted if things had escalated. "When you start not to trust your own organization or governing body, who can you trust?" he says.
Cleveland Browns tight end Kellen Winslow, Jr. says, "I think the player-conduct policy can be very subjective at times and might need some restructuring to clearly define what is and is not considered conduct detrimental, so it is not improperly imposed."

Under the previous conduct policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. The new conduct policy provides: “Conduct that undermines or puts at risk the integrity and reputation of the NFL will be subject to discipline, even if not criminal in nature. Repeat violations of the personal conduct policy will be dealt with aggressively, including discipline for repeat offenders even when the conduct itself has not yet resulted in a conviction of a crime.” The NFLPA says the personal conduct suspensions and fines have been excessive, "particularly in cases where a player has been accused of but not found guilty of a violation of law." One of the problems as I see it, and I discussed it last year on the blog, is that there is no check on fairness because the commissioner's disciplinary action is not subject to a "just cause" review by a neutral arbitrator (as is the case in the other sports).

Player discipline is a mandatory subject of collective bargaining. The new conduct policy is not in the CBA. If the players are serious, they should consider challenging Goodell's policy on the grounds that it was not collectively bargained for even though (according to previous press reports) the new policy was assented to by a 6-player committee.

Wednesday, November 05, 2008
 
The political predictors of sports

I was thinking this morning about writing something on the boon Barack Obama's victory would be to Oregon State recruiting, but Mike beat me to it. So let me mention some fun links between sports and this election.

1) The election to which this one is most-often compared (in terms of potentially marking an ideological and generational sea change behind an eloquent leader) is Ronald Reagan's win in 1980. The last time the Philadelphia Phillies won the World Series? 1980.

2) Prior to this year, in 16 of the 17 presidential elections since the Redskins moved to Washington in 1937, the outcome of the team's final home game before the election has matched the electoral result: A 'Skins win and the incumbent party retains the White House, a 'Skins loss and the incumbent party loses the White House. Make it 17 out of 18: The Redskins were pounded by the Steelers at home on Monday and the non-incumbent party won the White House on Tuesday.

3) When I took Intro to American Politics as a college freshman in 1986, I learned that one of the predictors of the presidential election was the World Series winner: American League team meant a Republican President, National League team meant a Democratic President. From 1952 until 1976, it worked every year (you can look it up). Then from 1980 until 2000, it worked only once--the Detroit Tigers and Ronald Reagan in 1984.

But we now are 3-for-3 in the new Millenium--Bush/Yankees in 2000, Bush/Red Sox in 2004, and now, Obama/Phillies.

 
Will Likely Increase in Marginal Tax Rates Prompt Rush to Signing Bonuses?

Interesting point raised in an Associated Press article:
Some baseball agents already are thinking about trying to beat a possible tax increase for their well-paid clients under an Obama administration. President-elect Barack Obama has proposed increasing the top federal income tax rate from 35 percent to 39.6 percent, where it was under president Bill Clinton. If signing bonuses are paid before Jan. 1, they likely would be taxed at the current rate and would not be subject to any increase. "

Obama's proposal would increase federal income tax on families earning more than $250,000 annually, money that would help finance a decrease for workers and families earning less than $200,000.

[F]or a big-money free agent earning $10 million in 2009, Obama's plan could increase his federal tax by more than $400,000.

Agent Scott Boras, negotiating eight- and possibly nine-figure deals for free agents Manny Ramirez and Mark Teixeira, already has thought about the possibility of asking for larger signing bonuses payable this year in some of his contracts.
The prospective increase in marginal tax rates has already fueled speculation that players who are set to become free agents at the end of next season may be motivated to rip up their contract for next year and get an extension (with signing bonus) done now (see Sons of Sam Horn commentary on Jason Bay of the Red Sox)

 
President Obama and Oregon State Recuriting

Scott Soshnick of Bloomberg has an interesting column on how Oregon State men's basketball head coach Craig Robinson might benefit by the fact that his brother-in-law is President-Elect Barack Obama. The column is excerpted below.

* * *
You will end up at Oregon State, even though the Beavers finished 0-18 in the conference last season and even though only one OSU player -- Brent Barry -- is in the NBA.

You will go because Craig Robinson can promise something no other coach can deliver: a pipeline to the president.

You see Robinson's brother-in-law is Barack Obama.

``Being related to Barack and Michelle, I'm not complaining,'' Robinson told me the other day.

In case you're wondering about a night in the Lincoln bedroom, the answer is no. That would violate National Collegiate Athletic Association rules.

``But,'' says NCAA spokesman Wally Renfro, chuckling, ``it never hurts to drop a name.''

Perhaps you saw Robinson's speech at the Democratic National Convention. Would-be college basketball stars did. The coach made sure of it, sending a mass e-mail to recruits alerting them to his primetime speaking engagement. Robinson used a sliver of his time to boast about Oregon State basketball. "Go Beavers,'' he said in a speech that was part stump, part recruiting tool.

* * *

The Obama connection is enough to get OSU an audience with the best, which is all Robinson can hope for. "We just want the chance to be in the living room,'' he said.

Once inside, those who know Robinson best say he will impress.

Robinson, 46, is a Chicago kid. He was a two-time Ivy League Player of the Year at Princeton. He was drafted by the 76ers. He played basketball in the U.K. He has a Master of Business Administration in finance from the University of Chicago. He was a vice president at Morgan Stanley.

To read the rest of the column, click here.

Tuesday, November 04, 2008
 
Lawyers as Athletic Directors


Last week, Indiana University hired Fred Glass, an IU alum and Indianapolis attorney, as its Athletic Director. According to the Associated Press, Glass has "no experience in athletic department administration, but does have a long track record of bringing major sporting events to Indianapolis, developing budgets and fundraising." Glass earned his law degree at IU and had been a partner at the Indianapolis office of Baker and Daniels.

Glass is by no means the first lawyer to take on the job of college AD, although he may represent the first to transition to the position directly from practice. Clemson's AD, Terry Don Phillips, has a law degree from Arkansas, although he acquired that degree after years in athletic administration. USC's longtime AD, Mike Garrett, has a law degree from Western State University.

Glass's hiring may be a sign of things to come, though. The job of college AD has changed over the years. In the past, ADs were thought of as "coaches in chief". But these days, the AD's job is more about two things which may be consistent with a lawyer's professional comparative advantage.

First, the AD must ensure compliance with ever-more-legalistic NCAA regulations. These days, it is common for university compliance officers to have law degrees and legal training. For instance, Doug Archie, a Toledo law grad, serves as compliance officer at Ohio State (after having served in the same capacity at Utah). These compliance officers can prove themselves within athletic departments, rising to the position of AD -- but lawyers like Glass can also provide a legal mind as ADs to help ensure compliance with NCAA rules.

Second, ADs are, these days, fundraisers first. They must both raise money for their departments and help support university-wide development efforts. For whatever reason, lawyers have proven themselves able university fundraisers. The success of law school deans in acquiring university CEO positions -- at Texas, Utah, Rochester, Columbia, NYU, to name but a few -- is a sign of lawyers' fundraising acumen. ADs with legal backgrounds, like their law dean counterparts, may prove themselves as fundraisers as well

 
Decision 2008: Should the BCS Stay or Go?

Although there are obviously more important issues at stake in the 2008 Presidential Election, the elimination of the computer-oriented "Bowl Championship Series" system (better known as the BCS) would be preferred by one of the two persons who will become our next President. In last night's Monday Night Football telecast of the Eagles-Cowboys game, Senator Barack Obama said:
"I think it is about time that we had playoffs in college football. I'm fed up with these computer rankings and this and that and the other. Get eight teams — the top eight teams right at the end. You got a playoff. Decide on a National Champion."
Supporters of the BCS would probably disagree with Senator Obama, noting that the BCS--which came into existence 10 years ago--uses a complicated math formula for a reason: to ensure fairness when evaluating teams that play opponents of varying quality. The many critics of the BCS, however, would respond that the BCS is much more about making money for schools, conferences, TV networks, merchants, and many others (though not the players on the field) than about determining who should be considered the best teams. I should note that our blog has featured some excellent and critical commentary on the BCS -- see Geoff's "BCmesS: The 2008 Edition", Rick's "The BCS System: Could it be an Illegal Restraint on Trade?" and Greg's "BCS: A Collection of Haves and Have Nots".

One quick background point: although it is often linked to the NCAA, the BCS is not formally part of the NCAA. It is a committee of persons associated with the 11 Division 1-A conferences as well as Notre Dame who manage the 5 bowl games and who execute contracts with companies to sponsor and broadcast those games. In theory, the NCAA could promulgate a playoff system like the one mentioned by Senator Obama and it could effectively replace the BCS. But that doesn't appear to be happenning anytime soon, though perhaps today's election could change that.

Monday, November 03, 2008
 
The Redskins and the ADA

Does the Americans with Disabilities Act require stadium owners to provide hearing-impaired fans equal access to aural content provided in stadiums?

That was the question presented to Judge Alexander Williams of the U.S. District Court in Greenbelt, Maryland in Shane Feldman (no relation), et al. v. Pro Football, Inc., et al. (also no relation). As you might recall (see post by Geoffrey here), three hearing-impaired Redskins fans filed suit against Pro Football, Inc. (the corporation that owns and operates the Redskins) and WFI Stadium (the corporation that owns and operates FedExField) in August 2006, alleging violations of Title III of the Americans with Disabilities Act. Title III of the ADA states that: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The regulations also state that: “A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.03(c).

In October 2006, FedExField voluntarily began captioning certain announcements and pieces of information (in addition to emergency information), including, among other things: an announcement encouraging fans to cheer, a brief description of the previous play, the end of each quarter, penalties, advertisements and public service announcements, scores from other games, and the final score. The defendants continued to maintain, however, that the ADA did not require them to provide such captioning.

Judge Williams held a summary judgment hearing on September 29, 2008. At the hearing, the defendants argued that the ADA does not require them to provide captioning at FedExField because they provide assistive listening systems for hearing-impaired fans and because “all information that is integral to the use of the stadium can be gathered solely from watching the game.” The plaintiffs argued that the defendants did not provide hearing-impaired fans equal access to the information and announcements broadcast over FedExField’s public address system and that the defendants refused to provide captioning and other services to ensure that announcements made over the public address system were effectively communicated to all fans.

Judge Williams sided with the plaintiffs, holding that:

Defendants provide more than a football game; they also provide public address announcements, advertisements, music, and other aural information to hearing fans at FedExField. Presumably Defendants provide this aural information to hearing fans for a reason. This aural information is a good, service, facility, privilege, advantage, or accommodation. Without some form of auxiliary aid or service, Plaintiffs would not have equal access to this information. On the face of the statute, the Court believes and concludes that Title III of the ADA requires Defendants to provide deaf and hard of hearing fans equal access to the aural information broadcast over the stadium bowl public address system at FedExField, which includes music with lyrics, play information, advertisements, referee calls, safety/emergency information, and other announcements.


This broad reading of the ADA has caused a bit of a stir up in DC (though perhaps not as much of a stir as this election I keep reading about) and has resulted in a strange phenomenon—people are actually defending Dan Snyder. Whether other judges follow suit and what impact this has on other stadiums throughout the country remains to be seen.

Any ADA experts (or aspiring experts) out there who want to chime in with thoughts or reactions?

 
Chase Utley's F Word

Chase Utley, the second baseman for the world champion Philadelphia Phillies could have given some local Philadelphia television stations major administrative and financial headaches when he used the "F word" to describe his elation at his team's accomplishment. As can be seen in this YouTube clip, Utley says: "World Champions . . . World Fuckin' Champions" in front of about 40,000 fans at Citizens Bank Park and many hundreds of thousands watching live on television.

Imagine if the Phillies won two years ago and Utley made the same statement. The use of the "fleeting expletive" would have raised the dander of FCC chair Kevin Martin and his Republican majority, which had reinterpreted its traditional definition of "indecency" to include out of context expletives that bore no relations to sex or excretory activity. [for more background, click here]. However, the regulations were invalidated by the U.S. Court of Appeals for the Second Circuit and, ironically, the oral arguments in the case, will be held tomorrow in the U.S. Supreme Court. Given the stay of the regulation, it is unlikely the commission would issue any notices of apparent liability at this time.

I just completed an article on this very question that advocates the creation of a "safe harbor" to protect broadcasters from precisely this kind of situation. Titled " 'Fleeting Expletives' and Sports Broadcasts: A Legal Nightmare Needs a Safe Harbor," it appears in 18 Journal of Legal Aspects of Sports 175. I think this is the best way to solve this problem, even if the Supreme Court affirms the Second Circuit's invalidation of the rules.

Sunday, November 02, 2008
 
Police Protection from Invasion of Privacy by the Press

In its relentless pursuit to verify whether it was former Knicks coach Isiah Thomas who overdosed on sleeping pills on Oct. 23 in the privacy of his home located in the Town of Harrison, New York, the press finally obtained the police report last Thursday evening. Interestingly, the patient's name was redacted in the police report as well as the name of the person who placed the 911 call. The report states that a police officer said he went to Thomas' home around midnight Oct. 23 in response to a report of "(blank) not breathing." It further states, "Upon my arrival I assisted (another officer) who was administering O2 to (blank) lying on the kitchen floor."

While the government sometimes withholds the names of individuals and other information for investigatory purposes, in this situation the Town of Harrison cited "unwanted invasion of personal privacy" as the reason for redacting the names from the police report. On the one hand, I applaud the efforts of the township to protect an individual's personal privacy because it knows all too well that the press simply won't. On the other hand, it seems sort of ironic that we have to actually rely on the government to protect citizens from an invasion of privacy by a distrustful press. As the press continues to neglect privacy in the balance against what it deems to be newsworthy, perhaps omitting pertinent information and redacting names from police reports will be a growing trend.

 
NY Times Examines NBA's Age Limit and Youth Basketball

I'm honored to have my study "NBA Players That Get in Trouble with the Law: Do Age and Education Level Matter?" discussed in today's New York Times in a fascinating story by Tommy Craggs on basketball phenomenon Renardo Sidney and the developing business relationship between the NBA and NCAA. Craggs also speaks at length with Sonny Vacarro and others about the relationship between the NBA's age limit, the NCAA, and how youth basketball is conducted. As a matter of background, and per the NBA and NBPA's current collective bargaining agreement, a U.S. amateur player must be at least 19-years-old on December 31 of the year of the NBA Draft and at least one NBA season must have passed from when he graduated from high school and the NBA Draft. The conventional wisdom behind this rule is that a star high school basketball player will go to college for at least one year, but there is evidence that such a player will soon be more and more incentivized to go to Europe for a year instead, as in Europe he can earn a six-or-seven figure salary playing the same sport for which he would earn no money playing in college.

Here are several excerpts from NY Times story (which exceeds 6,000 words -- it makes for great Sunday reading):

* * *

The N.C.A.A. has worked assiduously to curb the influence of these [AAU] tournaments. For years, this meant primarily a flurry of rules and recommendations, many designed to limit contact between college and summer coaches and to return the locus of the recruitment process to the high schools, where establishment coaches with better credentials could act as the key brokers between college and player. This spring, however, the N.C.A.A. and the N.B.A., with token participation from the A.A.U. and the shoe companies, upped the ante, announcing a five-year, $50 million effort to reform what the N.C.A.A.’s president, Myles Brand, called the “dysfunctional” world of youth basketball.

Fundamentally, the idea is to seize control of the mechanism by which players like Renardo Sidney launch their careers. What reform actually entails is unclear, but the deal calls for the N.B.A. and the N.C.A.A. to each chip in $15 million, with another $20 million coming through joint-marketing ventures. The contributions will fund an as-yet-unnamed program that will offer an alternative structure for youth basketball. The N.C.A.A. News wrote, “The new structure is designed to negate the effects of third-party influences currently working the youth basketball environment,” by which it meant “people who may not have the player’s best interests at heart.”

* * *

This summer, Vaccaro was instrumental in the decision by the prized point-guard recruit Brandon Jennings to spurn Arizona — he had not yet qualified academically — and instead play professionally overseas, sidestepping the N.B.A. entirely and making Jennings a wealthy man. (He was reportedly inspired after he and his mother heard Vaccaro on the radio discussing Europe as a viable option for newly minted high-school grads.) Playing in Italy for Lottomatica Virtus Roma, Jennings will earn $1.2 million this season in salary and endorsements. If all goes well, he will be a top-10 pick in next year’s N.B.A. draft.

To see Mayo work the phones, or Jennings draw a paycheck in euros at an age when he’d normally be running suicides for Lute Olson, is to see the players gaining the leverage that probably should have been theirs in the first place. For Mayo and Jennings, the supposedly dysfunctional summer game was in fact perfectly functional.

* * *

And here is Renardo Sidney, the sum of basketball’s newest fears.

“Renardo Sidney,” Reebok’s Christopher Rivers says. “Fantastic basketball player. Good kid, never been arrested, not on drugs, never kicked out of school, not failing classes. He’s a normal kid. Probably comes home late and spends too much time on his computer. But because he’s 6-foot-10 and he’s special and has the ability to make a lot of money if he continues his craft, and he’s treated like there’s something wrong with him? What’s wrong with him?”

* * *

To read the rest of the story, which is titled "The Next Big Thing," click here. For related coverage, check out Marc Isenberg of Money Players for his post on one and done.