Sports Law Blog
All things legal relating
to the sports world...
Tuesday, March 31, 2009
Vermont Law School’s Sports and Entertainment Law Society to host two panels at annual Solutions Conference

vls solutions banner

Vermont Law School will host its annual Solutions Conference on April 3rd and 4th. The Vermont Law School Sports and Entertainment Law Society along with the National Sports and Entertainment Law Society will host two panels:

  • Alternative Legal Careers: Sports and the Law

Date & Time: Friday, April 3rd, 2009 from 10:30-12pm
Panelist:Ed Mattes, Jim Munsey, Andrew Weber, and Michael Zarren
Moderator: Michael McCann

  • Keynote Address: Topic TBA

Date & Time: Friday, April 3rd, 2009 from 5:30-7:30pm
Speaker: Reggie Hudlin

The Solutions Conference is FREE to Vermont Law School Faculty, Staff and Students. The Solutions Conference is also open to the surrounding community for $25 per person. Everyone interested in attending must register for the Solutions Conference here.

Monday, March 30, 2009
NBA Age Limit Discussion at New York Law School

Last week I joined Alan Milstein, Marc Edelman, Paul Haberman and others on a sports law panel at New York Law School. Zach Lowe of the American Lawyer was there to cover it. Here's an excerpt from his piece, which highlighted discussion of the NBA's age limit:

* * *

NBA officials have hinted they want to raise the age limit to 20 when the current collective bargaining agreement expires in 2011. Luckily for us, the age limit topic dominated the discussion during a panel talk Wednesday at New York Law School featuring several high-profile sports lawyers. Even better, we heard Alan Milstein, a litigator at Sherman, Silverstein, Kohl, Rose & Podolsky promise that he plans to mount a legal challenge against the NBA's age-limit ban, which, to put it politely, he does not like. (Milstein called the ban "outrageous," "hypocritical," and "a sham." He and other panelists who share his views--including Michael McCann of Vermont Law School and Sports Law Blog fame--wonder why hoops players have to wait while tennis players and soccer players can turn pro as youngish teens).

Milstein says he's just waiting for a player willing to challenge the rule, and he thinks he can win on antitrust grounds (among others). It wouldn't be Milstein's first attempt at taking on such an age limit. With help from McCann, he fought the National Football League's age limit on behalf of former Ohio State University star running back Maurice Clarett. Clarett, who lost that case, is now serving a 7-1/2 year prison sentence after being convicted on various criminal charges, including robbery. Milstein speculates that Clarett may have stayed out of trouble had he been allowed to enter the NFL early and earn a living.

The Clarett experience won't stop Milstein from going after the NBA's age limit. "I'm hoping to find a player to challenge it in the next couple of years," he told the panel.

* * *

For the rest of the piece, click here.

Salary cap for soccer teams in Europe?

Nowadays the financial crisis also seems to be hitting the European sports sector. Sport clubs, associations and politicians come up with different proposals to solve the crisis or at least prevent clubs to fall into bankruptcy. One of the topics in the world of European soccer is the introduction of a salary cap which should improve the financial situation of the clubs. The Union of European Football Associations (UEFA) is currently (re-)considering the idea of limiting clubs' expenditure on salary and transfer fees to a particular proportion of their direct and indirect sporting revenues.

Revenue would be defined as money received only from ticket sales, sponsorship, merchandise and television income. It would not include any financial investment by owners or major shareholders. Apart from creating tools to battle the financial crisis, the introduction of a salary cap tries to limit the increasing importance of (mostly) foreign investors which seem to destabilize competition. According to UEFA these foreign investors are responsible for immoral wages and transfer fees.

The UEFA is of the opinion that the United States sports system and regulators could be an example of how to maintain a competitive balance between sporting measures and regulations to ensure the clubs are properly managed. The main arguments of the critics however are the following:

- The introduction of a salary cap must be introduced at international level. If one or more national leagues refuse to introduce the salary cap, this could result into a competitive gap between capped and uncapped leagues.

- The richest (and most powerful) clubs in Europe will resist on the introduction of the salary cap as it could undermine their competitive advantage.

- There is no such thing as a European accounting, financial or auditing standard which could safeguard that the salary cap will equally applied in the different countries. The introduction of a salary cap would need to be accompanied by the introduction of (strict) financial/accountancy rules for all clubs.

There is no doubt that measures need to be taken to improve the financial situation of the European soccer teams. The financial crisis could be the ideal stimulus for the European authorities to come up with initiatives to introduce a global framework with coherent financial, auditing and accounting standards which the different teams have to respect. A salary cap could be one of those standards, but will have little effect without a global framework.

Saturday, March 28, 2009
Why the Florida Marlins now are state actors in their new stadium

The gory details of the stadium deal that my esteemed city, county, and state officials recently struck illustrate how my state-action arguments can work as to fan speech in publicly funded stadiums.

If there is anything left to the "symbiotic relationship" test of Burton v. Wilmington Parking Authority (admittedly a debatable proposition for a Civil-Rights-Era-product-of-its-time decision), this deal satisfies it. The government is paying 75 % of the costs to build a cathedral for the long-term predominant use and exclusive benefit of one private entity, in exchange for limited immediate financial benefit, hoped-for "psychic" benefits of keeping the team in town, and potential (but never-fully-realized) downstream economic benefits of a neighborhood and area revival. This is the essence of the exchange of mutual benefits and mutually beneficial relationship that Burton said triggered state action when the private beneficiary restricted constitutional rights in the course of managing that public space.

Think of it this way: The Marlins bear no serious financial burden in this deal. Why not make them bear the burden of having to respect the First Amendment liberties of the fans who are funding this boondoggle.

Thursday, March 26, 2009
UConn Accused of Recruiting Violations for Nate Miles

Paul Doyle of the Hartford Courant interviewed me for a story concerning former UConn recruit Nate Miles and possible NCAA violations committed by the university, especially by former student-manager0turned agent Josh Nichomson (who himself may soon be sued for defrauding clients, including Richard Hamilton of the Pistons). Miles would never play UConn, as he was expelled due to Miles violating a restraing order.

Below is an excerpt of Doyle's story.

* * *
The UConn men's basketball team is playing in a Sweet 16 game tonight in the NCAA Tournament, but on Wednesday things took on a decidedly sour tone off the court.

Coach Jim Calhoun was answering questions about a Yahoo! Sports report that said his program broke NCAA rules in recruiting Nate Miles. The story, posted early Wednesday, reported that former UConn team manager Josh Nochimson represented Miles as an agent and that former UConn assistant coach Tom Moore was aware of the relationship.

The story also cited phone records attained through the Freedom of Information Act that showed that five UConn coaches called Nochimson and sent him text messages at least 1,565 times during a nearly two-year period before and after Miles' recruitment in 2006 and early 2007. Calhoun had 16 of those communications, Yahoo! reported.

Miles, a 6-foot-7 guard from Toledo, Ohio, was expelled by UConn on Oct. 2 amid allegations that he had abused a female student. A restraining order was issued on Sept. 22, and Miles was arrested for calling the woman 16 minutes later. He never played a game for UConn and has since enrolled at Southern Idaho, a junior college.

The university would not say whether it has started an internal investigation, but it did say in a statement that it "takes very seriously its responsibilities of NCAA membership and will do all that is expected to follow up on any information related to possible NCAA rules violations."

UConn also would not say if it was in contact with the NCAA or whether a system exists to monitor coaches' calls to recruits. That could be an issue with the NCAA, which says that a school must demonstrate "institutional control." The NCAA also says that it expects the head coach of a program to promote an atmosphere of compliance.

At a press conference in Glendale, Ariz., Calhoun refused to respond Wednesday to the specific allegations. "[UConn] tries to live under the responsibility of the NCAA rules," Calhoun said. "The student-athlete departed UConn. And the reason I mention this prior to any competition because there is no problem now with games or what happened during those particular games, nor should there be. At least I don't think so."

Stacey Osburn, a spokeswoman for the NCAA infractions committee, said that the NCAA would not address the allegations. "We can't comment on current, pending or potential investigations," Osburn said.

Joe Linta, a sports agent from Branford, assessed the situation this way: "If it's a phone call violation, I think it will only be a slap on the wrist. If there is an infiltration with an agent who was involved in the program and is doing illegal things, then it becomes very serious."

Vermont Law School Professor Michael McCann, who specializes in sports law and writes a column for, said that the NCAA could come down hard on UConn. The NCAA could impose recruiting restrictions or take away scholarships, but it was unlikely to force UConn to forfeit games because Miles did not play.

"I think it's potentially major, certainly if Calhoun was involved or had knowledge of what was going on," McCann said. "UConn could argue that what Nochimson did was so outside the boundaries of his work with UConn or his association with UConn that he really was not acting on behalf of UConn. But I think it's a hard argument to make because his actions, if they're true, benefited UConn. I think the real question is, how high up the chain did these transgressions go?"

* * *
To read the rest of the story, click here. To read the Yahoo! story, click here. For a report on the NCAA contacting UConn about this, check out Seth Davis' piece on

Marlins New Stadium Deal = Worst in Taxpayer History?

On several occasions, I have written about how professional sports teams use monopoly power to demand stadium subsidies from their local governments.

Yesterday, at Above the Law, I argued that the new stadium agreement just signed between Miami-Dade County and Florida Marlins owner Jeffrey Loria will prove to be the worst ever for taxpayers.
I believe this for three reasons:

1. The specific terms of the Marlins stadium agreement skew hugely in the team's favor. Although Marlins owner Jeffrey Loria is funding only about 25% of the new stadium's costs, he will get to keep 100% of stadium revenues -- including non-baseball related revenues, concert revenues, and revenues from the sale of stadium naming rights. The county, which is paying $359 million in up-front funding, meanwhile keeps nothing.

2. Marlins ownership has never been willing to invest money into their club. Last year, the Marlins team payroll was just $22 million, which is $58 million below the league median, and by far the lowest in the league. Rather than investing in their own team, Marlins President David Samson often used the threat of keeping a low payroll as part of his strategy in demanding public subsidies.

3. This is America's first stadium deal since our economy collapsed. It cannot be overlooked that in the past year the average taxpayer has lost close to half of his retirement funds, and that, with unemployment skyrocketing, local municipalities will collect less tax money in 2008 and 2009 than in the past. This all makes this public funding to one of the county's already wealthiest citizens all the more repulsive.

For those interested in reading my full column at Above the Law, please see here. Also, my most recent law review article on publicly funded sports stadiums is attached here.

Indian Cricket League Moves Tournament to South Africa

On Tuesday, I was interviewed for the BBC World Radio Service program World Have Your Say, for the story, Is India Showing Weakness in the Face of Terrorism?. After an attack on Sri Lanka's cricket team in Pakistan earlier this month, India's government informed the year-old Indian Premier League that the government would be unable to provide security for its spring tournament due to competing security obligations in connection with upcoming national elections. Siddhartha Vaidyanathan of Forbes has good coverage of the controversy here.

Although the decision has disappointed Indian fans, it has had some interesting financial consequences. The IPL renegotiated its broadcast deal in light of the move, obtaining nearly $500 million more than it was to receive had the event been held in India as originally planned.

We've written previously about terrorism and security in connection with sports: Mike's posts FBI: Terrorism Threat Against NFL is a Hoax and Sports and Stadium Security, Five Years Later, Howard's post Fan Consent and the Constitution at the Ballpark, my post
Federal Court Continues to Bar Suspicionless Stadium Patdowns , and Greg's post Pat Downs at Sports Arenas: Necessary Precaution or Unconstitutional Search?

An Unconstitutional Tax for Traitorous Ballplayers?

Via TaxProf blog, a New York lawyer has (humorously) proposed an AIG-bonus-type tax for Manny Ramirez: The Manny Ramirez Lightbulb: Also (2 Ideas in 1 Memo) Putting Pay in Perspective.

Monday, March 23, 2009
New Sports Law Scholarship

Recently published scholarship includes:
Roger I. Abrams & Alan Levy, The trial of Rube Waddell, 19 SETON HALL JOURNAL OF SPORTS AND ENTERTAINMENT LAW 1 (2009)

James Bamberg, Wrestling with a union: can anyone protect the 6’7”, 300-pound professional wrestler from the sports-entertainment industry?, 2 FLORIDA ENTERTAINMENT LAW REVIEW 1 (2008)

Susannah Carr, Title IX: an opportunity to level the Olympic playing field, 19 SETON HALL JOURNAL OF SPORTS AND ENTERTAINMENT LAW 149 (2009)

Anita L. DeFrantz, Which rules?: international sport and doping in the 21st century, 31 HOUSTON JOURNAL OF INTERNATIONAL LAW 1 (2008)

Ian Dobinson and David Thorpe, What’s wrong with the Commissioner? Some lessons from Downunder, 19 SETON HALL JOURNAL OF SPORTS AND ENTERTAINMENT LAW 105 (2009)

Will Hendrick, Comment, Pay or play?: on specific performance and sports franchise leases, 87 NORTH CAROLINA LAW REVIEW 504 (2009)

Andrew Lothson, A university’s implied contractual obligation to protect a student-athlete’s educational opportunity in relation to non-traditional games: a breach of contract?, 2 FLORIDA ENTERTAINMENT LAW REVIEW 113 (2008)

Wes R. McCart, Note, Title IX crashes the party in college athletic recruiting, 58 DEPAUL LAW REVIEW 153 (2008)

Matthew J. Mitten & Timothy Davis, Athlete eligibility requirements and legal protection of sports participation opportunities, 8 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 71 (2008)

Jeffrey W. Moore, How sports can benefit communities burdened by brownfields, 8 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2008)

Michael J. Nichols, Note, Time for a Hail Mary: With bleak prospects of being aided by a college version of the NFL’s Rooney Rule, should minority college football coaches turn their attention to Title VII litigation?, 8 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 147-172 (2008)

Jordan Michael Rossen, Note, The NBA’s age minimum and its effect on high school phenoms, 8 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 173 (2008)

George T. Stiefel III, Comment, Hard Ball, Soft Law in MLB: Who Died and Made WADA the Boss?, 56 BUFFALO LAW REVIEW 1225 (2008)

The Phases and Faces of the Duke Lacrosse Controversy: A Conversation (Howard M. Wasserman, moderator; James E. Coleman, Jr., Angela Davis, Michael Gerhardt, K. C. Johnson and Lyrissa Lidsky, panelists), 19 SETON HALL JOURNAL OF SPORTS AND ENTERTAINMENT LAW 181 (2009)

Jonathan Yovel, Legal formalism, institutional norms, and the morality of basketball, 8 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 33 (2008)

New York Law School Sports Law Panel this Wednesday

I'm honored to be speaking this Wednesday, March 25th, at New York Law School, on a sports panel. Here is info on the event:

* * *

The Media, Entertainment, and Sports Law Association at New York Law School will host a panel on sports law this Wednesday between 5:00 and 7:00 p.m. in the Stiefel Reading Room.Topics will include sports contract negotiations and the legality of age limits in pro sports.

Distinguised panelists include:

Andre Buck
(NBA agent at Creative Artists Agency in New York City; has represented first round picks in the NBA Draft, including Aaron Brooks and Renaldo Blackman)

Marc Edelman
(Visiting Professor at Rutgers School of Law; founder of SportsJudge fantasy sports dispute resolution service)

Paul Haberman
(Associate at Heidell, Pittoni, Murphy & Bach in New York City; Chairman of the New York County Lawyers Association's Sports Law Committee)

Michael McCann
(Professor at Vermont Law School; Legal Analyst and columnist at Sports Illustrated; Former Chair of Association of American Law School's Section on Sports and the Law)

Alan Milstein
(Partner at Sherman, Silverstein, Kohl, Rose; has litigated on behalf of Maurice Clarett, Allen Iverson, Eddy Curry, jockey Eddie King, and other athletes; also a nationally-recognized expert on bioethics and clinical trials litigation)

Mark Stefanacci (Chief Operating Officer and Legal Counsel for the New Jersey Sports and Exposition Authority)

* * *

The event will be open to anyone with an invitation, which is free -- all you need to do is contact the event's organizer, Lauren Friedberg (the Society's Vice President of Sports) at lauren.friedberg[at] and let her know that you would like to attend. For directions to the law school, click here. It should be a great event and I hope to meet any Sports Law Blog readers who are in town and able to make it.

Saturday, March 21, 2009
Catching Up with Links

  • University of Illinois Law Professor John Colombo, who probably knows more about the intersection between tax and sports law than anyone, has posted a free draft of his forthcoming law review article: The NCAA, Tax Exemption and College Athletics. If you're interested in the NCAA's tax exempt status, be sure to check it out.
  • If you have HBO on Demand, be sure to check out the Real Sports feature on Brandon Jennings and his time in Itlay as he earns over $1 million playing basketball over there (instead of attending a U.S. college) while waiting to become eligible for the 2009 NBA Draft, where he's projected to be a top 15 pick. Sonny Vaccaro is interviewed by Bryant Gumbel and offers excellent analysis.
  • Nick Infante's College Athletics Clips is always worth checking out (subscription required). He has some engaging original pieces and some provocative guest pieces, including one by UNC Professor Richard Southall on the treatment of college athletes in the NCAA tournament.
  • Particularly for those of you have bought merchandise from the Coop in Harvard Square, you'll find the Associated Press's Jimmy Golen's recent piece of great interest. Jimmy examines how Harvard and some other schools are severing ties with Russell after two watchdog groups said the clothing-maker harassed pro-union Honduran employees.
  • If you are interested in sports law from the vantage point of a Connecticut attorney, Daniel Fitgerald, be sure to check out his blog, Connecticut Sports Law. Daniel has some terrifc posts up, including one on the United Football League not going to Hartford.
  • Dominic Parrelli of Sports Agent Blog has an engaging piece on players who have attendance clauses in their contracts. Ken Griffey Jr., for instance, can earn an additional $2.5 million if the Mariners' attendance reaches a certain level this season.
  • Several readers have asked if a video of the MIT Sloan Sports Analytics Conference will be made available -- apparently a video is being prepared and it will feature some of the panels. In addition, HBO taped the panel that Sonny Vaccaro, Chris Wallace, Bob Scalise, Bob Ryan, and I were on, so there might be a separate source of footage for that one.

Justice Jackson on Umpiring and Judging

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.”

When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century.

“Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

Thursday, March 19, 2009
Shawn Hill Released by the Washington Nationals

Bill Ladson of reported yesterday that the Nationals placed Shawn Hill “on waivers Wednesday for the purpose of giving him his unconditional release.” Ladson also reported that Hill will receive one-sixth of the $775,000 that he was awarded last month by an arbitration panel. Hill’s injury problems persisted into this spring, and he had only been able to pitch twice due to forearm tightness. Chico Harlan noted in his article for the Washington Post that the payment to Hill of just under $130,000 was exercised on Wednesday because of a deadline for the payment of a fractional amount. Both reporters stated that Hill took the news very hard.

Later in the day the Nationals signed Joe Beimel for $2,000,000. Beimel went to a hearing with the Los Angeles Dodgers in 2007. The arbitration panel of Stephen Goldberg, Elizabeth Neumeier, and John Sands sided with the Dodgers figure of $912,500. Beimel was asking for $1,250,000. Neumeier was also on the Hill panel this year along with Robert Bailey and Frederic Horowitz. Nationals manager Manny Acta expects to use Beimel as the set-up man in the eighth inning.

So, two pitchers who have both endured the hearing process have an interesting connection on the same day in March 2009. Beimel, who started his major league career as a starter with the Pittsburgh Pirates posted a 5-1 record last year in 71 games for the Dodgers. His 2.02 ERA was the best of his eight-year career. The Nationals will be his fifth team. Beimel also pitched for the Minnesota Twins (2004) and the Tampa Bay Devil Rays (2005). Beimel became a free agent for the first time at the end of 2008 season. His contract with the Nationals is a little under the amount he earned last year with the incentives that he met according to an article by Tony Jackson on the Los Angeles Daily News inside the dodgers blog.

Thoughts for the Big Dance: On Duke Hatred

Good piece from The New Republic on the venomous hatred of Duke basketball and Duke players and the way that hatred is explicitly and unabashedly expressed in homophobic terms.

This really is part of the larger issue of race in college basketball (which the article touches on briefly) and the perception that white players are "soft" spot-up shooters, rather than "tough, strong athletes." In the macho context of sports, such traits translate into homosexuality. The phenomenon actually is not limited to Duke. But it finds it most frequent target there because Duke produces more highly publicized and/or star players (where Duke is concerned, the categories may be very different) who are white.

Wednesday, March 18, 2009
FSU College of Law Entertainment, Arts, and Sports Society 6th Annual Conference

I look forward to speaking at the Florida State University College of Law Entertainment, Arts, & Sports Law Society's (EASL) 6th Annual Conference this Saturday, March 21, 2009. The conference will commence at 12:00 p.m. [note change from 11:00 a.m.] in the Florida State College of Law Rotunda in Tallahassee. It will consist of discussions comprised of entertainment, sports, and arts lawyers, managers, record label owners, and industry professionals.

Joining me as a speaker will be:
  • Christopher Griffin (partner at Foley & Lardner whose practice has focused on representing clients in business and broadcasting transactions involving college football, bowl games, and NCAA regulatory issues. He is a member of the NCAA Division I Infractions Committee and is a past president of the National Football Foundation's Tampa Chapter).
  • Sandra Brown (partner at Sandra Brown, Esq in Atlanta and whose practice has focused on business counsel for entertainers, including musicians in their contractual relations with record labels; former Associate Director of Business Affairs of the record label owned by music producer Jermaine Dupri, So So Def Recordings, Inc.)
  • Oswaldo Rossi (director of Legal and Business Affairs for EMI Music Latin America, his practice has focused on negotiating recorded deals and license agreements. His work also includes oversight of releases, including by such EMI musicians as Vico C and D.J. Tony Touch).
The event is open to the public. If you are interested in attending, please contact Shane Costello, the President of the Entertainment, Arts, Sports Law Society, at stc06[at] Please let me know as well, as it would be great to meet a reader of this blog.

Topps Trading Cards Go Online

3 1/2 weeks ago, I participated in an ABA teleconference and explained why the Eighth Circuit's decision in the CBC case was incorrectly decided. At one point, I discussed how the development of new technologies does not, and should not, change the right of publicity/First Amendment analysis, e.g. the fact that fantasy leagues are now being sold online as opposed to in a box off the store shelf (see Uhlaender case). In that regard, I mentioned that online trading cards, if there ever is such a thing, would not change the fact that the players have a right of publicity in trading card use (see Haelan Labs. case).

Yesterday, Laurie Sullivan of Online Media Daily reported that The Topps Co. has just announced a series of online baseball trading cards whereby the players come to life through a standard Web camera and technology. Consumers have an option to pull the "magic" card from the deck and play a game online by signing onto with a code and downloading a browser plug in, which then allows them to pitch, bat or catch in games served up from the website.

This new development by Topps really demonstrates why the Eighth Circuit's decision in the CBC case is flawed. The district court merely noted the factual distinction between trading cards and fantasy leagues in that trading cards contain likenesses. However, the court provided no explanation whatsoever as to why there should be a legal distinction, and the reason why it didn't is fairly simple: Because there is none. Moreover, the fact that Topps is now online and has created a game with the use of trading cards (akin to fantasy leagues) does not magicly transform trading cards into a First Amendment protected use.

Thursday, March 12, 2009
Nova Southeastern University Symposium

On Saturday, March 28, the Sports & Entertainment Law Society at the NSU Shepard Broad Law Center (co-sponsored by the Florida Bar Entertainment, Arts and Sports Law Section) is hosting a symposium entitled, Adaptation: “Staying ahead of legal issues arising in the new digital age”. I will be on a panel explaining why athletes have a right of publicity when huge corporate conglomerates profit from the use of their names in the sale of commercial fantasy league products. Don Fehr is the keynote speaker for the event. The schedule of events and registration information are at the above link.

Tuesday, March 10, 2009
Breaking Down Helio Castroneves Tax Evasion Case

I have a new column on -- it is on the government's tax evasion case against Penske Racing's Helio Castroneves, who won the Indianapolis 500 in 2001 and 2002 and Dancing with the Stars in 2007 with dancer/country music singer Julianne Hough. Here is an excerpt:

* * *

The key for Castroneves, however, is whether the government can prove, beyond a reasonable doubt, that Castroneves had any material role in Seven Promotions. [Roy] Black -- Castroneves' lead counsel -- argues that Castroneves did not organize the corporation, possess its shares, or serve as an officer. Instead, according to Black, Helio Castroneves, Sr. owned and operated Seven Promotions, without any role played by his son or daughter. The cloaked nature of the bearer share corporation may advance Black's case.

More generally, Black maintains that Castroneves -- focused on his career rather than his money -- lacked awareness as to his finances and did not appreciate far-away business dealings in Panama and the Netherlands. Black also claims that even when presented with opportunities to learn about his finances, Castroneves apparently lacked the interest and capacity to understand them. As a result, Castroneves signed papers without understanding their meaning.

Bolstering this defense is that other drivers, including Eliot Sadler of Sprint Cup, have complained about convoluted verbiage found in racing contracts. Keep in mind, if the jury concludes that Castroneves lacked financial understanding, he would be poised to escape conviction: tax evasion requires the prosecution to prove that Castroneves willfully evaded taxes; if he was unaware that certain payments must be treated as taxable income, then he could not have committed tax evasion.

Based on data, however, the chance of Castroneves succeeding is slim. Prosecutors obtain convictions in over 90 percent of tax evasion cases, with some estimates claiming a prosecutorial success rate as high as 97 percent.

* * *

To read the rest of the column, click here.

Sunday, March 08, 2009
Suffolk University Law School Sports Law Discussion This Wednesday

This Wednesday (March 11th), I'll be speaking at Suffolk University Law School in Boston as a guest of the law school's Sports and Entertainment Law Association.

I'll be discussing property interests in statistics, age limits in the NBA and NFL, player conduct policies, and career opportunities in sports law. I look forward to the event.

The event will begin at 6 p.m. and will take place in the Faculty Dining Room. It is open to anyone.

For directions to Suffolk Law, click here. For any questions, please feel free to contact Patrick Malloy, the Vice President of the Sports and Entertainment Law Association, at pjmalloy[at]

Saturday, March 07, 2009
New sports blog

Jon Pessah of ESPN and Stony Brook University has a new blog, including posts about the government's Javert-like pursuit of Barry Bonds and other steroid users. Jon has done some great recent writing about Jeff Novitzky, the lead federal investigator on many of these matters. He also did great in-depth writing about the fallout of the Duke lacrosse mess (I presently am trying very hard to pull Jon into a book project I am doing on the subject).

Friday, March 06, 2009
Truth of the Day

Thursday, March 05, 2009
More on the Less Restrictive Alternative

Rick’s latest post gives me a perfect opportunity to shamelessly plug my new article, “The Misuse of the Less Restrictive Alternative Inquiry in Rule of Reason Analysis,” which was recently published in the American University Law Review and can be found here.

As Rick notes in his post, Mountain West’s proposal could be seen as a less restrictive alternative to the current BCS system. How is that relevant to the antitrust analysis of the BCS? Well, virtually every court (except the Supreme Court) has adopted a form of the less restrictive alternative inquiry as an independent and dispositive prong of the rule of reason analysis under Section 1 of the Sherman Act. Under the traditional rule of reason test (which, by the way, is still the only rule of reason test the Supreme Court has used since 1918), courts are asked to determine the net competitive effect of a restraint by balancing its procompetitive benefits and anticompetitive effects. If the restraint is net procompetitive, it is legal. If it is net anticompetitive, it is illegal. Lower courts, however, have added another step to the rule of reason. Even if the restraint is net procompetitive, it is illegal if there is a less restrictive alternative for achieving the procompetitive benefits. So, if the NCAA could prove that the current BCS system achieves significant procompetitive benefits and is net procompetitive, a plaintiff could still argue that the current BCS system is illegal under Section 1 if there is a less restrictive alternative (for example, Mountain West’s proposal) for achieving these benefits.

As I argue in my article, this use of the less restrictive alternative is fatally flawed from both a practical and theoretical perspective, is inconsistent with almost 100 years of Supreme Court precedent, and creates an unworkable standard for Section 1 analysis. For those interested in reading more, the abstract and full article can be found here.

BCS and Antitrust

USA Today's Steve Wieberg reports this morning that the Mountain West Conference yesterday "unveiled a plan that would recast the BCS' four current bowls — FedEx Orange, Allstate Sugar, Tostitos Fiesta and Rose — as quarterfinals in an eight-team playoff, quadrupling the number of teams that get a shot at the national title." [The complete proposal (pdf) is linked in the article.] Wieberg notes that the proposal would alter the way teams are placed for the BCS bowls, setting up a 12-member selection committee that would rank the top 25 at the end of the regular season and slot eight teams into a playoff format, and those slots would still take into account automatically qualifying conference champions.

I raised the question whether the BCS system constitutes an illegal restraint on trade under Section 1 in a post back in 2005 (which, ironically, was one year after Utah's 2004 undefeated season). Here is what I wrote four years ago: "So in other words ladies and gentlemen of the jury: The six largest athletic conferences got together and agreed that the teams in their conferences have the toughest schedules and should, therefore, have a greater opportunity to compete for a national title to the exclusion of an undefeated team that simply does not compete at their level according to them (such as a Tulane in 1998 or a Utah in 2004), and they devised a system to accomplish those ends." And now you can add, "a Utah in 2008".

In antitrust speak, Mountain West's proposal could be viewed under a rule of reason analysis as "a less restrictive alternative" that serves the same procompetitive justifications as the current BCS system in crowning a legitimate college football champion, but which does so in a manner that does not produce the same anticompetitive effects.

Wednesday, March 04, 2009
Harvard Law School conference on Free Market Ideology

Not sports law related, but possibly of interest to some of our readers:

This Saturday, the Project on Law and Mind Sciences of Harvard Law School will be hosting its third annual conference. The topic is "The Free Market Mindset: History, Psychology, and Consequences." Given all that is going on in today's economy and the government's efforts to prevent a more severe recession or even a depression, the free market mindset couldn't be a more timely topic.

This event will be open to the public.

Speakers will include Jon Hanson (Harvard Law prof), Douglas Kysar (Yale Law prof), Christine Desan (Harvard Law prof), Bernard Harcourt (UChicago Law prof), along with a number of prominent economists and other academics, including Stephen Marglin (Harvard Businsess School prof) and Juliet Schor (Boston College sociology prof)

I will also be speaking at this event. I'll be speaking on the last panel (5:30 p.m.), after I speak at MIT Sloan's Sports Analytics Conference. It will be a busy day.

Update: Judge Richard Posner will also be speaking at the event.

Tuesday, March 03, 2009
MIT Sloan Sports Analytics Conference This Saturday

I'm honored to be speaking at this year's MIT Sloan Sports Analytics Conference, which will be held this Saturday (March 7th) in Cambridge, Mass.

It should be an amazing event, with some of the biggest names in sports, including Mavericks owner Mark Cuban, Rockets GM Daryl Morey, and ESPN columnist Bill Simmons, as speakers.

Here is the agenda:

Careers in Sports
This panel explores the various roles that individuals with business and analytical backgrounds can fulfill within team, league, and related sports organizations. In addition, the panel will discuss various paths individuals took to identify and obtain these positions.

Chris Wallace -- General Manager, Memphis Grizzlies
Dan Zimmer -- Vice President of Business Operations, Boston Bruins
Buffy Gordon Filippell -- President, TeamWork Consulting
Bill Allard -- CEO, Athlete's Performance

Kristin Lane -- Partner, Forty Forty

Evolution of the Fan Experience
Evolution of the Fan Experience will look at how new technology, stadium design, game innovations, and customer initiatives are taking the fan experience to the next level.

Brian Burke -- President and General Manager, Toronto Maple Leafs
Jeff Van Gundy -- ESPN Analyst and Former NBA Coach
Mark Donovan -- Senior Vice President of Business Operations, Philadelphia Eagles

Bill Simmons -- ESPN Columnist

Globalization of Sports
Two years ago, the NFL played its first regular season game in London. In September, the NBA announced a joint venture to build and run sports arenas in China. Leagues and teams are taking different approaches to reach the global market. League and team partners are closely monitoring and defining success. This panel will look at the business opportunities that international markets offer to the sports industry. Top industry executives will share their insights on what is currently being done to grow business, specifically in areas such as merchandising, media, and partnership/sponsorship.

Tim Romani -- President & CEO, ICON Venue Group, LLC
David Baxter -- President, Adidas Sports Licensed Division
Steve Pagliuca -- Managing Partner, Boston Celtics

Mike Gorman -- Play-by-Play Announcer, Boston Celtics

Talent Identification
Long before there are professional or collegiate performances to analyze, scouting professionals scour the globe to find the next Michael Jordan or Peyton Manning. Developing the talent pipeline is a critical function for any sports team. This panel will discuss some of the existing, as well as new innovations in discovering the new talents of tomorrow.


Michael Forde -- Performance Director, Chelsea Football Club
Kris Homsi -- Science Director, SPARQ
Phil de Picciotto -- President of Athletes & Personalities, Octagon
Aaron Schatz -- Founder, Football Outsiders
Jack Mula -- General Counsel, ScoutAdvisor

Kate Fagan -- Reporter, The Philadelphia Inquirer

Sports in a Recession
With the current economic downturn, leagues, teams and sponsors are facing a new set of challenges. This panel will discuss the effects teams and sponsors are seeing across ticketing, player salaries and advertising. In addition, the executives will discuss what steps and strategies they are undertaking to adjust to the current situation and what changes they are making to prepare for the future.

Jonathan Kraft -- President and COO, The Kraft Group
Rich Gotham -- President, Boston Celtics
Tim McDermott -- SVP and CMO, Washington Capitals
Lou DePaoli -- EVP and CMO, Pittsburgh Pirates
Kathy Goodman -- Co-Owner, Los Angeles Sparks

Dr. Roger Brinner -- Partner and Chief Economist, The Parthenon Group

Business of College Sports - Implications for Student Athletes
This panel looks at the business of college sports with a special emphasis on the rights of student-athletes. In particular we hope to explore such issues as pay-for-play, and new revenue sources.

Sonny Vaccaro -- Director, Vaccaro Sports Partnerships and Founding Chairman, The Roundball Classic and ABCD Camp
Michael McCann -- Associate Professor of Law, Vermont Law School and Legal Analyst, Sports Illustrated
Chris Wallace -- General Manager, Memphis Grizzlies
Bob Scalise -- Director of Athletics, Harvard University

Bob Ryan -- Sports Columnist, The Boston Globe

Baseball Analytics
The idea of using advanced analytics to measure athletes’ performance and value originated in baseball and has probably had more impact on the sport than on any other. This panel, returning now for its third year, will explore how the use of analytics in baseball has evolved, looking at how teams measure their own players and evaluate potential draft, trade and free agent acquisitions. The panelists are all industry thought leaders in the use of analytics for personnel management and they bring perspectives ranging from external consultants and authors to internal baseball operations personnel.

Shiraz Rehman -- Director of Baseball Operations, Arizona Diamondbacks
Tim Purpura -- Executive Vice President and COO, Minor League Baseball
Christina Kahrl -- Co-Founder & Managing Editor, Baseball Prospectus
David Pinto -- Owner and Author, Baseball Musings

John Dewan -- Owner, Baseball Info Solutions

Basketball Analytics
This panel examines the importance of analytical methods in basketball. With APBRmetrics gaining acceptance and respect around the NBA, teams are increasingly using statistical analysis to gain a competitive edge over their opponents. Panelists from ESPN and NBA teams will weigh in on topics revolving around player and team evaluative techniques, including the evolution of analytics in player evaluation and other research related to the development of optimal team performance.

Mark Cuban -- Owner, Dallas Mavericks and Co-Founder & Chairman, HDNet
Michael Zarren -- Asst. Exec. Director of Basketball Operations & Associate Counsel, Boston Celtics
John Hollinger -- Columnist, ESPN
Dean Oliver -- Director of Quantitative Analysis, Denver Nuggets

Marc Stein -- Columnist, ESPN

Sport 2.0 - The Evolution of Technology and Sports
Over the past two decades technology has completely reshaped the sports industry. Equipment companies are spending millions of dollars to improve athletic performance and safety while leagues try to maintain an even playing field. In addition, the fan experience has been transformed through huge leaps in media. This panel will be an open discussion on these topics and more with industry leaders in equipment design, media technology, and performance oversight.

Dick Rugge -- Senior Technical Director, US Golf Association
Steve Solomon -- President & COO, Accrue Sports and Entertainment Ventures
Dr. Mike Caine -- Director, Loughborough University Sports Technology Institute
Paul Litchfield -- VP of Advanced Concepts, Reebok
Mike Leigh -- Leader of Projects and Technical Development, US Olympic Committee

Dr. Kim Blair -- Founder & President, Sports Innovation Group LLC and Founder, MIT Sports Innovation

The Media and the Fanatic: the evolving value of new media and sports
There is growing concern that newspapers and other traditional media are becoming irrelevant as an avenue for keeping up-to-date on sports. However, new media (e.g. Blogs, Social Media, Social Networking sites) are challenging the established revenue channels provided by traditional media and impacting how fans follow their favorite teams. What does the future hold for media outlets and sports organizations? In this panel, we will explore recent avenues of growth (e.g. NBA-TNT partnership), local sports networks and other media growth on the horizon.

Adam Silver -- Deputy Commissioner and COO, NBA
John Walsh -- EVP and Executive Editor, ESPN
David Levy -- President, Turner Broadcasting Sales, Inc. & President, Turner Sports
John Collins -- COO, NHL

Shira Springer -- Sports Reporter, The Boston Globe

Team Chemistry: Real Value or Urban Legend?
Boston has emerged as a championship town with the “team-first” Patriots, a Celtics team with three hall of fame hopefuls, and a Red Sox team whose biggest bat overstayed his welcome. It begs the question, how much is team chemistry worth and can it be taught or even measured? This panel will offer perspectives from professionals who deal with these issues every day.

Andre Tippett -- Hall of Fame Linebacker and Executive Director of Community Affairs, New England Patriots
David Griffin -- Senior Vice President of Basketball Operations, Phoenix Suns
Dr. Steve Julius -- Team Psychologist, Chicago Bulls and Founder, Human Resource Consulting Group
Armond Hill -- Assistant Coach, Boston Celtics

Henry Abbott -- Founder, TrueHoop and Senior Writer, ESPN

Value of Icon Players
Description From the Babe to Michael Jordan to Montana and Gretzky, icon players don't just leave a mark on their team: they leave their mark on the sport and on the history of an era. Can you quantify the value they bring to a team or a city? Our panelists will discuss their experiences with icon players, starting with Casey Wasserman, CEO of the Wasserman Group, one of the world's leading global sports agencies, and Carla Christofferson, co-owner of the WNBA's LA Sparks.

Ray Allen -- All Star Guard, Boston Celtics
Carla Christofferson -- Co-Owner, Los Angeles Sparks
Greg Via -- Global Director of Sports Marketing, The Gillette Company
Brian Jennings -- EVP of Marketing, NHL

Ric Bucher -- NBA Reporter, ESPN and Senior Writer, ESPN The Magazine

Monday, March 02, 2009
The NFL Scored an Antitrust Touchdown in American Needle. Why are they asking the Supreme Court for a Review?

As has been narrowly reported, the Supreme Court has asked the Solicitor General for an amicus brief in the American Needle case. Marc Edelman has an excellent new post discussing this development on Above the Law. As I discussed in a post here a few months ago, the Seventh Circuit’s conclusion in American Needle that the NFL and its teams act as single entity when promoting NFL football through licensing teams’ intellectual property marked the rebirth of the single entity argument in sports antitrust litigation.

Given that the Seventh Circuit’s decision conflicted with nearly every other court’s determination that sports leagues are not single entities, it is unsurprising that American Needle filed a petition for certiorari with the Supreme Court. As American Needle’s petition notes, “In the 50 years since Radovitch [the Supreme Court case holding that the antitrust laws apply to the NFL], every appellate decision to have considered the question has held that the NFL and other professional sports leagues are subject to rule of reason scrutiny under Section 1 of the Sherman Act….[It} is untenable that the NFL should be exempt from the antitrust laws only in the Seventh Circuit.”

What is surprising, however, is that the NFL also filed a petition for certiorari(and they were joined by the NBA, NBA Properties, and the NHL). Why would the NFL want the Supreme Court to review a case that they won? Well, the NFL wants the Supreme Court to expand on the Seventh Circuit’s ruling and hold that sports leagues are single entities—and this immune from Section 1 attack—for all purposes, or at least with respect to “core [league] functions.” Here is an excerpt from the NFL’s petition:

The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits. If the petition is granted, the NFL will argue that professional sports leagues, which produce a product that no member club could produce on its own, and other joint ventures that involve a similarly high degree of economic integration, should be deemed single entities for Section 1 purposes, at least with respect to core venture functions, notwithstanding that the venture participants are separately owned and may not have a complete unity of interests.

More on this to come…

Sunday, March 01, 2009
New York County Lawyers Association Sports Law Forum: March 11, 2009

Location: NYCLA Building, 14 Vesey Street, New York, New York

Time: 6:30 P.M.

The forum is about the representation of athletes in individualized (as opposed to team) sports in negotiations and the maintenance of endorsement and sponsorship deals. Among the topics to be covered are the recent Michael Phelps and Alex Rodriguez scandals and how to handle such matters as they pertain to endorsements and sponsorships, as their attorneys. The panel is made up of experienced sports law practitioners whose clients come from such sports as tennis, boxing, mixed martial arts, show jumping, golf, and bodybuilding.


Keven Davis, Esq., Partner, Garvey, Schubert & Barer;

Elizabeth Durkin, Esq., Partner, Durkin & Durkin, LLP;

Michael DiMaggio, Esq., Associate, Collins, McDonald & Gann, P.C.;

Christopher R. Chase, Esq., Associate, Frankfurt, Kurnit, Klein & Selz, P.C.;

Scott Shaffer, Esq., Member, The Lustigman Firm, P.C.

Moderator: Paul Stuart Haberman, Associate, Heidell, Pittoni, Murphy & Bach, L.L.P. and Chairman of the Sports Law Committee of the New York County Lawyers Association.

Sponsor: NYCLA's Entertainment, Media, Intellectual Property and Sports Law Section

RSVP: and write 'March 11 forum' in the Subject line.

This forum is open to the public.

A Re-Examination of Jeff Novitsky

Jon Pessah of ESPN Magazine and Stony Brook University has a very provocative piece up today on ABC News that re-assesses the decisions of IRS agent Jeff Novitsky in the BALCO investigation, particularly as his decisions pertain to the Barry Bonds investigation. Jon examines the different perspectives on Novitsky, who some critics say overstepped appropriate bounds for someone in his role but who has also earned the praise of many supporters for helping to clean up sports from steroids.

Vanderbilt Symposium

On Friday, March 13, the Vanderbilt Journal of Entertainment and Technology Law is hosting a symposium at the law school entitled, "Lights, Labor, Action: Labor Controversy in the Sports and Entertainment Industries." CLE credit is available for practitioners and registration information can be obtained at the above link. Here is the schedule of events:

9-9:50 a.m. Registration and Continental Breakfast

9:50-10:00 a.m. Welcome

10-11:30 a.m. Student-Athlete or Student-Employee? The Relationship Between the NCAA, Universities, and Student Athletes

David Cohen, Kasowitz, Benson, Torres & Friedman LLP

William King, III, Lightfoot, Franklin & White

Gene Marsh, Professor of Law, University of Alabama Law School

Naima Stevenson, Assistant General Counsel, NCAA

David Williams, Vice Chancellor for University Affairs, General Counsel and Secretary, Vanderbilt University

12-1:00 p.m. Keynote Speaker: Jonathan Handel, Attorney, Troy Gould
Keynote Address: Like Scorpions in a Silicon Cage: How Hollywood Management and Labor Fought While Content’s Kingdom was Slipping Away

1:30-2:45 p.m. Sweat Equity: Contracting with Players and Coaches in the NFL

Anthony Agnone, Eastern Athletic Services

Dennis Cordell, Founder of Coaches, Inc.; Former Staff Counsel for the NFLPA and Asst. Exec. Dir. of NFL Coaches Association

Rick Karcher, Assoc. Prof. of Law and Dir., Ctr. for Law and Sports, Florida Coastal School of Law

Steve Underwood, General Counsel, Tennessee Titans

3:15-4:30 p.m. Maintaining the Musician: Protecting Music, Image, and Technology Today

Joseph F. Brazil, Loeb & Loeb; Former Vice President of Business Affairs for EMI Music

Elizabeth Gregory, The Law Offices of Elizabeth V. Gregory, P.C.

Ken Sanney, Day & Blair, PC, and Adjunct Prof. in the Department of Recording Industry, College of Mass Communication at Middle Tennessee State University

Cheryl Slay, Solo Practitioner and Asst. Prof. of Music Business at Belmont University in the Mike Curb College of Entertainment and Music Business

4:30-5:30 p.m. Closing Remarks and Reception

Please contact Emily Creditt ( if you have any questions.