Sports Law Blog
All things legal relating
to the sports world...
Sunday, May 31, 2009
 
Ballpark t-shirt case in Texas?

A woman wearing a "Yankees Suck" t-shirt was threatened with removal from The Ballpark in Arlington last week. And the story is drawing some national attention (ED: Contains video line; I removed video from post because it was playing automatically).



The Rangers have received a number of complaints about the word sucks and consider it impermissible profanity that is offensive to "many people." The woman is not talking about suing, only about wanting the Rangers to change their policy; she concedes that the park is private property (something I continue to dispute). She also makes the obvious-but-often-missed point that teams cannot ensure that no one ever is offended by what they happen to see and hear at the ballpark, especially if it is not in-your-face.

Even if there is no lawsuit, it is nice to have a ballpark-speech story with a singular (and seemingly sympathetic) face and story.

Friday, May 29, 2009
 
What happens in Delaware...

The possibility of sports gambling in Delaware is one step closer to becoming a reality. In March 2009, Delaware Governor Jack Markell requested an opinion from the Delaware Supreme Court regarding the legality of Delaware’s proposed sports lottery. On Wednesday, the Delaware Supreme Court ruled that the lottery does not violate the Delaware Constitution. Here are some questions you might have regarding this development, with a few answers.

I don’t understand. No lawsuit has been filed. Why is the Delaware Supreme Court giving an opinion on this? I’m having trouble deciding what to have for dinner tonight. Can the Delaware Supreme Court give me an opinion on that?

The Delaware Constitution authorizes the Governor to seek advisory opinions from the Justices of the Delaware Supreme Court regarding the constitutionality of any law passed by the Delaware Assembly. The Governor’s request does not need to be connected to any ongoing or potential litigation. Rather, as was the case here, the request can be made to “enable the Governor to discharge the duties of the office with fidelity.” The Opinions of the Justices are not binding in later litigation, but will likely be persuasive. And, to answer the second question, unless you’re the Governor and one of your dining options may violate the Constitution, you are out of luck.

What is the Delaware sports lottery?
Delaware introduced a football lottery back in 1976. That original lottery offered two types of parlay games. In the first game, players had to correctly select the winner of 7 NFL games in a given week. In the second game, players had to correctly select the winner of 3 or more NFL games with the point spread. The lottery lasted less than a year because the lottery commission had difficulty picking the correct point spread, which led to significant losses for the state.

Governor Markell pushed for a new sports lottery to help Delaware deal with its budget deficit. As proposed, the new Delaware sports lottery will consist of three games: First, a single game lottery, where players try to pick the winner of an NFL game with a point spread. Second, a total lottery, where players pick whether the total scoring in an NFL game will be over or under the total line. Third, a parlay lottery, where players pick the winner of multiple NFL games and/or multiple over/unders. In other words, the sports lottery allows people to bet on NFL games. As of now, it appears that the lottery will also use NBA games. If the sports lottery becomes a reality, Delaware will be the only state east of the Mississippi with legalized sports betting.

Did the NFL challenge the original Delaware sports lottery?

Yes. The NFL brought two broad claims in federal district court in Delaware against the original Delaware sports lottery. First, the NFL claimed that the sports lottery was an illegal form of gambling that violated the Delaware Constitution. Second, the NFL argued that the lottery violated the NFL’s trademarks, misappropriated the NFL product, and amounted to a “forced association with gambling.” In a 1977 opinion, Judge Walter Stapleton declared that the lottery did not violate the Delaware Constitution. He also rejected the bulk of the NFL’s intellectual property claims, but did require the lottery to make clear that the games were not affiliated with the NFL.

Why did the Justices of the Delaware Supreme Court determine that the new sports lottery is legal?

The Delaware Constitution prohibits all forms of gambling, except lotteries under state control that are used for the purpose of raising funds. Thus, the key question facing the Justices was whether the proposed sports lottery constituted a legal type of “lottery,” or an illegal type of gambling. This was precisely the issue addressed by Judge Stapleton in 1977, so the Justices relied heavily on his opinion. The Delaware Constitution does not define the term “lottery,” so the court relied on the definition used by Judge Stapleton, which explained that a lottery has three elements: a prize, consideration, and chance.

The question then became, does the sports lottery contain the necessary element of chance? There are (just in case you thought this would be simple) two competing tests to answer that question. Under the English rule, also known as the “pure chance” rule, no element of skill may be involved. Under the American rule, also known as the “dominant factor” rule, chance does not have to be the only factor, but must be the dominant or controlling factor.

Given that the majority of states (and Judge Stapleton) follow the American rule, the Justices adopted the “dominant factor” American test. For what it’s worth, it probably also helped that Delaware is in America. That led to the next question—is chance the dominant factor in betting on NFL games? To answer that, the Justices again relied on Judge Stapleton, who determined that chance was a significant factor because games are often decided by unpredictable factors such as “the weather, the health and mood of the players and the condition of the field.” As Judge Stapleton added, “no one knows that may happen once the game has begun.”

Interestingly, because Judge Stapleton’s opinion was limited to the parlay games of the original lottery, the Justices only concluded that chance was the dominant factor in the parlay games offered by the new sports lottery. Citing a lack of evidence, they did not offer an opinion as to the chance element present in the single-bet games, noting that the point spread may provide the requisite chance element, but may just “manage the money flow.” So, for now, the only form of sports gambling that the Justices have explicitly blessed is parlay games. Other forms of gambling—including single games—may also be legal, but the state will have to prove that chance is the predominant factor in those games.

I live in New Orleans. We have a casino in the middle of the city and drinks named after dangerous weapons and natural disasters. Surely we can have a sports lottery, too. Right?

Wrong. The Professional and Amateur Sports Protection Act (“PASPA”), passed by Congress in 1992, prohibits all states from operating any form of sports gambling operation, except those states operating sports wagering schemes between 1976 and August 31, 1993. Delaware, along with Nevada, Oregon, and Montana, fall within that exception.

But, all hope is not lost. The State of New Jersey, seeking to start its own sports lottery, recently filed a lawsuit challenging the legality of PASPA. According to the lawsuit, “PASPA represents a substantial intrusion into States’ rights and restricts the fundamental right of States to raise revenue to fund critical State programs. Moreover, it blatantly discriminates between the States.”

The NFL recently allowed its teams to sign licensing deals with state-sponsored lotteries, so they must be fine with the Delaware sports lottery, right?

Not quite. The NFL has approved team licensing deals with state-sponsored lotteries, so their anti-gambling stance seems to have softened, at least where it will provide an influx of revenue to their teams. But, the NFL has not softened on their anti-sports gambling stance. What’s the difference? Gambling on the NFL impacts the integrity of the game; playing scratch-off games does not. Here is how Commissioner Roger Goodell phrased it in his letter to Governor Markell urging him not to go forward with the Delaware sports lottery:
Professional sports involve athletic contests that must not only be honest, but be perceived by the American public as honest. NFL owners and players have worked hard from the league’s inception nearly 90 years ago to protect its integrity. There is no issue of greater importance to the league. That is why the NFL’s position on legalized sports gambling has remained consistent for decades. State-promoted gambling not only adds to the pressure on our coaches and players, but creates suspicion and cynicism toward every on-the-field mistake that affects the betting line.

The NFL prides itself on the parity they have achieved throughout the league and on their “on any given Sunday” mentality (which, I suppose, has now become an “on any given Sunday, Monday, Thursday, and, late in the season, Saturday”). The beauty of sports—and the NFL in particular—is that we don’t know who is going to win the game until they play it. The NFL wants to ensure that nothing interferes with that unpredictability. (Note that this unpredictability is precisely why Judge Stapleton determined that chance is the predominant factor in predicting the outcome of an NFL game.)

Of course, many argue that the NFL would be quite happy if Delaware and other states legalized gambling on NFL games. Gambling drives a tremendous amount of interest in games and keeps people watching even when the result of the game is no longer in doubt. Others point to the fact that the NFL’s position on the Delaware lottery is hypocritical. The NFL has a billion dollar television contract with ESPN, a company that provides predictions of NFL games with the point spread. As Governor Markell noted in his response to Commissioner Goodell: “the notion that the NFL has aggressively and actively fought against betting on its games is belied by the very programming the NFL indirectly endorses and from which it handsomely profits.”

Can the NFL prevent the Delaware lottery from using the schedule and scores of NFL games?

Unlikely. Judge Stapleton ruled in 1977 that use of NFL scores and schedules by the original Delaware sports lottery was a fair use, as long as no NFL trademarks were used and a disclaimer made clear that the games were not authorized by the NFL. Thus, expect the new lottery to refer to the matchups by city names—for example, Philadelphia vs. New Orleans, instead of the Eagles vs. the Saints.

On a scale from 1 to 10, what impact will this have on Brett Favre’s possible un-retirement?

6.

Wednesday, May 27, 2009
 
The StarCaps Saga Continues

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide. Bumetanide, a diuretic, is banned under the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”) because it can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players then appealed their suspensions to the NFL. Despite proof that the players did not intend to take bumetanide and did not know they were doing so, the NFL denied the players’ appeal because the NFL Policy makes the players responsible for whatever enters their body. As the NFL Policy states: “Players are responsible for what is in their bodies, and a positive result will not be excused because a player was unaware that he was taking a [banned] substance.”

The players then challenged the suspension in federal court in Minnesota (after a series of legal maneuverings in state court), where Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. On Friday, however, Judge Magnuson ruled on the parties’ summary judgment motions. Here are some questions raised by the latest development in this case, with a few answers.

1. Who won the case??
Most of the headlines have declared this case a victory for the NFL, but here’s what Peter Ginsberg, attorney for Kevin and Pat Williams, had to say: "This gives my clients a terrific case, and Judge Magnuson kept alive the heart of our case.”

So, who is right? Well, to some extent, they both are. On the one hand, Judge Magnuson’s decision reaffirmed the sanctity of the NFL’s strict liability drug policy. The players raised a unique challenge to the NFL’s Policy. The players did not simply argue that it was unfair that they were punished for unknowingly taking a banned substance. Rather, the crux of the players’ argument was that the NFL knew that StarCaps contained bumetanide but failed to disclose this fact to the NFL players or the NFL Players Association. The players claimed that this constituted a breach of fiduciary duty, endangered the health of the players, and “fatally tainted the suspensions so that enforcing the [suspensions] would unfairly punish the players and condone the improper behavior and breaches of duty by the NFL, in violation of public policy and the essence of the CBA.” Judge Magnuson rejected these claims, noting that “there is no doubt that it would have been preferable for the NFL to communicate with players specifically about the presence of bumetanide in StarCaps. The NFL’s failure to do so is baffling, but it is not a breach of the NFL’s duties to its players.” Judge Magnuson also held that it is “not a breach of fiduciary duties to tell players all supplements are risky and that players should not rely on any supplement’s list of ingredients because that list may be incomplete.”

On the other hand, the decision was not a complete victory for the league. Pat and Kevin Williams also argued that the NFL Policy violated Minnesota state law. Judge Magnuson sent those claims back to be decided by Minnesota state court. So, while it may not be the “heart” of the Williams’ claim, part of their claim is still alive and will be decided by a local state court judge.

And, of course, the case isn’t quite over yet. The NFL has already filed a notice of appeal.

2. What are the Minnesota state law claims?
Pat and Kevin Williams brought claims under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA). The DATWA is one of the most comprehensive and pro-employee drug testing state laws in the country. It sets forth a series of mandatory procedures designed to protect Minnesota employees and to ensure safe and reliable drug testing in the workplace. One of the provisions of DATWA forbids an employer from disciplining an employee for a first time drug offense without first giving the employee and opportunity to participate in a drug counseling program. Another provision of DATWA permits an employee to submit information to the employer that might explain the positive test result. The CPA prevents an employer from disciplining an employee for using “lawful consumable products…off the premises of the employer during nonworking hours.”

The Williamses thus claim that the NFL violated their rights under state law by:
1) Suspending them without giving them an opportunity for counseling;
2) Failing to give them an opportunity to explain the reason for the positive test; and
3) Suspending them for using a legal substance in the offseason.

3. What are the NFL’s potential responses to the state law claims?
The NFL will likely make two broad arguments.

First, they have already indicated that they will argue that the Labor Management Relations Act (“LMRA”) preempts the state law claims. Judge Magnuson held that the LMRA preempted every common law state cause of action involving the NFL collective bargaining agreement, because, as a general principle of law, the LMRA preempts state law claims that are “inextricably intertwined” with consideration of the terms of a collective bargaining agreement. Judge Magnuson held that the DATWA and CPA claims were not preempted because those state statutes establish rights and obligations that are independent of the collective bargaining agreement. In other words, the NFL and NFLPA were not permitted to agree to terms in a collective bargaining agreement that violate state law.

The NFL will likely argue that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL will likely claim that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

Second, if the preemption argument fails, the NFL could challenge the merits of the underlying state claims. Interestingly, according to Judge Magnuson’s opinion, the NFL concedes that its steroid testing procedures do not comply with the strict letter of Minnesota state law. But, the NFL “argues that the differences are negligible and do not require the Court to invalidate the Williamses’ positive tests for bumetanide.” Of course, we wouldn’t expect the NFL to announce that they think they’re going to lose the case, so let’s take a look at some of the arguments the NFL might make. I’ll take them in the order of the claims listed in question 2. The NFL can argue that:

1) Suspension without opportunity for counseling
The purpose of the counseling and treatment requirement in the DATWA is to ensure that Minnesota employers provide assistance to employees with substance abuse problems and chemical dependencies. Issues dealing with substance abuse and the use of recreational drugs are covered in the NFL Policy and Program for Substances of Abuse. That policy does provide for treatment for a first time offender. The situation here, of course, involved use of a performance enhancing drug (or, more specifically, a performance enhancing drug masker). Treatment and rehabilitation concerns for users of performance enhancing drugs are not as heightened (or, at a minimum, are different) than the concerns for users of addictive recreational drugs. The NFL can thus argue that the counseling requirement in DATWA was not intended to apply to users of performance enhancing drugs.

On a more technical note, the DATWA provision states that an employer cannot punish an employee based on a “test result that was the first positive result on a test…” The NFL could argue that the suspensions were based on the admissions by the five players that they used bumetanide, and not on the positive test results. It may seem like a stretch, but courts have narrowly interpreted the requirements of the DATWA and other similar state statutes.


2) Failure to provide opportunity to explain positive test
The NFL did give the Williamses an opportunity to explain the reason for the positive test. But, the reason given (inadvertent use) was not a valid defense under the NFL Policy;

3) Suspension for use of a legal substance
Bumetanide is only legal with a prescription, and the Williamses did not have a prescription. Also, the CPA allows employers to restrict use of legal substances if the restriction “relates to a bona fide occupational requirement and is reasonably related to employment activities.” The NFL can argue that prohibition of performance enhancing (or masking) substances, even if legal to the general public, clearly relates to a legitimate requirement of the NFL.

4. Were these state law claims raised in the earlier preliminary injunction hearings?
No, the state law claims were not at issue during the earlier preliminary injunction hearings and were not addressed by Judge Magnuson during these hearings. The Williamses filed their original complaint on December 4, 2008. That complaint did not contain the DAWTA and CPA claims. Judge Magnuson granted the preliminary injunction on December 11, 2008, before the Williamses raised the state law claims. At the oral argument, the Williamses attorneys did notify Judge Magnuson that they intended to amend their complaint to include the state law claims. These claims were included for the first time in the amended complaint filed by the WIlliamses on January 4, 2009.

5. Does Louisiana have a similar state law that protects Deuce McAllister, Charles Grants, and Will Smith?
Yes and no. Louisiana does have a state law that regulates drug testing of employees, but it specifically excludes drug testing conducted by the NFL. So, pending any appeals by the NFLPA, Judge Magnuson’s decision ended the case for the three Saints.

6. This ongoing litigation cannot be helping the relationship between the NFL and the NFLPA, can it?
I’ll let Judge Magnuson handle this one. Here’s an excerpt from his opinion:
It is clear that this situation arose because the parties to these cases do not trust each other. The NFL does not trust the Union or the players. The players and the Union do not trust the NFL. No one believes that the opposing parties have any common interests. The situation is deplorable and leads to suspicion and the sort of no-holds-barred litigation tactics so clearly on view here.

Other than that, Judge, how are they getting along?

 
Perjury in Congressional Hearings on College Bowl System and the BCS?

Congress conducted hearings on the college bowl system earlier this month. Now, reporters have raised questions regarding whether bowl defenders committed perjury or acted in contempt of Congress in claiming that most bowl games are organized by charitable groups and that tens of millions of dollars earned by the bowls go to charity. Yahoo.com stories are here and here, and BYU law professor Gordon Smith weighs in at the Conglomerate blog.

 
NPR on Sotomayor's baseball decision

Audio here.

Tuesday, May 26, 2009
 
New Sports Law Scholarship

Recently published scholarship includes:
Scott A. Anderson, A call for drug-testing of high school student-athletes, 19 MARQUETTE SPORTS LAW REVIEW 325 (2008)

Genevieve F. E. Birren & Jeremy C. Fransen, The body and the law: how physiological and legal obstacles combine to create barriers to accurate drug testing, 19 MARQUETTE SPORTS LAW REVIEW 253 (2008)

Jonathan F. Duncan & Kristina V. Giddings, Which Washington: Constitutions in conflict?, 19 MARQUETTE SPORTS LAW REVIEW 231 (2008)

Marc Edelman, Moving past collusion in Major League Baseball: healing old wounds, and preventing new ones, 54 WAYNE LAW REVIEW 601 (2008)

Evan Steele Fensterstock, Comment, Shin v. Ahn applies the primary assumption of risk doctrine to injuries sustained by golfers in the same group: negligence goes unpunished, 43 NEW ENGLAND LAW REVIEW 87 (2008)

Eldon L. Ham, The immaculate deception: how the Holy Grail of protectionism led to the great steroid era: why Congress should revoke baseballs antitrust boondoggle, 19 MARQUETTE SPORTS LAW REVIEW 209 (2008)

Daniel Healey, Fall of the Rocket: steroids and the case against Roger Clemens, 19 MARQUETTE SPORTS LAW REVIEW 289 (2008)

Sarah L. Horvitz, Travis Tygart & Paul A. Turbow, Dopers are not duped: USADA’s assistance to federal prosecutions ultimately protecting clean athletes is not state action, 19 MARQUETTE SPORTS LAW REVIEW 39 (2008)

Dionne L. Koller, From medals to morality: sportive nationalism and the problem of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 91 (2008)

T. Matthew Lockhart, Comment, The NCAA should adopt a uniform student-athlete discipline policy, 16 UCLA ENTERTAINMENT LAW REVIEW 119 (2009)

Robert D. Manfred, Jr., Federal labor law obstacles to achieving a completely independent drug program in Major League Baseball, 19 MARQUETTE SPORTS LAW REVIEW 1 (2008)

Richard H. McLauren, Corruption: its impact on fair play, 19 MARQUETTE SPORTS LAW REVIEW 15 (2008)

Robert Moore, The Interaction Between the Americans with Disabilities Act and Drug and Alcohol Addiction in Sports, 16 Sports Lawyers Journal 231 (2009)

Will Pridemore, Book review, Reviewing David Ezra, Asterisk: *Home Runs, Steroids, and the Rush to Judgment, 19 MARQUETTE SPORTS LAW REVIEW 345(2008)

Abbas Ravjani, The Court of Arbitration for Sport: a subtle form of international delegation, 2 JOURNAL OF INTERNATIONAL MEDIA & ENTERTAINMENT LAW 241 (2009)

David G. Roberts, Comment, The constitutionality of the NFL patdown policy after … Johnston v. Tampa Sports Auth. and Sheehan v. The San Francosco 49ers, Ltd., 58 CASE WESTERN RESERVE LAW REVIEW 979 (2008)

Shayna M. Sigman, Are we all dopes? A behavior law & economics approach to legal regulation of doping in sports, 19 MARQUETTE SPORTS LAW REVIEW 125 (2008)

Michael Straubel, The International Convention Against Doping in Sport: is it the missing link to USADA being a state actor and WADC coverage of U.S. pro athletes?, 19 MARQUETTE SPORTS LAW REVIEW 63 (2008)

 
Judge Sotomayor's Sports Law Opinions


It's official: as Professor cummings predicted earlier this month, the President will nominate Second Circuit Judge and die-hard Yankees fan Sonia Sotomayor to the Supreme Court. Perhaps more than any Supreme Court nominee in history, Judge Sotomayor has a long record of adjudicating major sports law cases, dating back to her time on the district court. Among her notable sports law cases:
Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290 (2nd Cir. 2008) (concurring) (action by league against manufacturer of plush bears with team logos)

MasterCard Intern. Inc. v. Federation Intern. de Football Ass'n, 239 Fed.Appx. 625 (2nd Cir. 2007) (panel member) (action by credit card company claiming breach of contract providing for continued sponsorship of World Cup)

Clarett v. National Football League, 369 F.3d 124 (2nd Cir. 2004) (antitrust action challenging draft eligibility rules)

Gilbert v. Seton Hall University, 332 F.3d 105 (2nd Cir. 2003) (dissenting) (personal injury claim by college rugby club athlete)

Ortiz-Del Valle v. N.B.A., 190 F.3d 598 (2nd Cir. 1999) (panel member) (gender discrimination case by female NBA referee)

Boucher v. Syracuse University, 164 F.3d 113 (2nd Cir. 1999) (panel member) (Title IX claim by female college athletes)

Tasini v. New York Times, Corp., 981 F.Supp. 841 (S.D.N.Y. 1997) (copyright action by freelance writers challenging electronic republication of Sports Illustrated stories)

Silverman v. Major League Baseball Player Relations Committee, 880 F.Supp. 246 (S.D.N.Y. 1995) (unfair labor practice claim against baseball owners)

Jaguar Cars v. National Football League, 886 F.Supp. 335 (S.D.N.Y. 1995) (trademark infringement suit by car company over naming of Jacksonville Jaguars football team)

Monday, May 25, 2009
 
Pete Rose and the Hall of Fame

A commenter to my post on steroids and the Hall of Fame asks about Pete Rose. I thought it warranted a new post, rather than a comment. I actually wrote about this point three years ago.

Rose should not be in the Hall, because different rules apply. Rose is ineligible for the Hall under Rule 3E, which bars selection of anyone who is on MLB's permanently ineligible list. Rose is on that list because he agreed to be placed on the list (which he did to avoid the now-we-know-was-inevitable finding that he did, in fact, bet on games involving the Reds). There is no character/integrity/sportsmanship debate to be had with Rose--he is out because the rules (properly, I believe) keep him out.

But as the commenter notes, Rose was suspended for post-playing conduct. This raises a couple of points.

First, I still agree with the current outcome under Rule 3E. The ineligible list is the ineligible list for Hall purposes, regardless of when or why the suspension occurred.

But note the anomalies. Rose retired as a player in 1986 and would have been on the ballot for the first time (and almost certainly elected) in 1992. Suppose his gambling had not been revealed until 1995? I cannot find whether there is a procedure for removing someone from the Hall if that person is suspended from the game subsequent to his induction. So we could ask whether it makes sense to deny admission to a player based on a suspension for post-playing conduct when we would not remove him from the Hall for the same conduct. Actually, this happened in miniature in the early 1980s, when Willie Mays and Mickey Mantle were barred from any official involvement with MLB because they held PR positions with casinos (although Commissioner Bowie Kuhn had meant the suspension only to apply to formal employment and not to all involvement in the game). The Hall did nothing and the "suspension" was lifted after two years. Worse, under my counter-factual, Rose might not have been removed from the Hall (if no such procedure exists) even if had been discovered, post-induction, that he had gambled as a player.

Second, the commenter implicitly raises a different counter-factual: Suppose there were no Rule 3E (actually, the Rule did not exist until 1991, enacted specifically to ensure that Rose and the rehabilitating Shoeless Joe Jackson did not make it in). Now we squarely have the situation the commenter suggests: Baseball-related, post-playing, against-the-rules conduct, subject to the integrity/sportsmanship/character clause.

I say he still should not get in. First, I would not divide his baseball conduct between playing and non-playing conduct; it is all what he did as part of baseball and whether he violated specific rules of the game. And he did. Note that this makes his tax evasion conviction/prison term irrelevant, because that was non-baseball.

More prominently, Rose violated a specific rule of MLB through acts that go to the basic integrity of the game in a way that steroid use does not. The game's integrity demands that every player go all out to win every game to the best of his ability and effort, for the sake of winning (and the intrinsic values associated with winning), within the established rules of the game. A player who uses steroids or other PEDs is trying to maximize his performance and his success--that is the basic argument in the Zev Chafets piece that I originally linked to. Gambling on games involving one's own team (even if always to win) runs contrary to that understanding of the game's integrity.

Saturday, May 23, 2009
 
Hall of Fame, Steroids, and Cheating

Zev Chafets argues on ESPN that steroid users should not be kept out of the Hall of Fame. His argument is that steroid users are no different than players of past generations, many of whom engaged in questionable activities off the field (consorting with gamblers, the Klan, and gangsters) and were "happy to use any substance they thought would give them an edge" on the field. As to the latter category, Chafets points to Hall of Famers of the past using non-anabolic steroids, amphetamines, monkey testosterone (hey, it was 1899), and other substances. He argues generally that we have to judge one generation against itself, not past generations. So Barry Bonds's greatness, even if steroid-enhanced, must be measured against his contemporaries, many (most?) of whom also were using steroids.

I am generally sympathetic to the argument, so long as it focuses on on-field behavior (I think off-field behavior is irrelevant and, to the extent Chafets relies on past greats' off-field behavior as evidence, I reject the consideration). And I agree that the visceral rejection of the use of science and chemicals to improve performance (while accepting and encouraging other ways of improving performance, including different science and different chemicals) is too short-sighted.

But I think Chafets ignores one point: Steroids are against the rules of baseball (also illegal more broadly, although I do not necessarily care about that), while these other substances were not specifically banned by baseball at the time. Rule 5 of the Hall Rules requires consideration of "integrity, sportsmanship, character," which must be understood as a prohibition on cheating within the game; cheating necessarily means breaking the rules. There is, I would argue, a difference between "doing what was necessary to stand above their peers" when it involved breaking the operating rules of the game (i.e., cheating) and when it did not. So, to the extent players were using steroids in violation of MLB rules, I disagree with Chafets' conclusion; to the extent they were not banned by the game (regardless of what federal law had to say about them), I think he has it about right.

Wednesday, May 20, 2009
 
Will Michael Vick Return to the NFL?

I have a new SI.com column on this topic. Here's an excerpt.

* * *
What will Goodell do? He appears poised to reinstate Vick for the 2009 season, though probably with onerous strings attached, such as Vick facing permanent expulsion should he get into any trouble. Without expressly saying so, Goodell has laid out a roadmap for Vick's reinstatement. He has conditioned reinstatement upon Vick showing genuine remorsefulness. Goodell also expects Vick to demonstrate that he has learned from his mistakes and that he can be a positive influence going forward.

For his part, Vick has acknowledged that he committed "heinous" acts, has expressed sorrow for them and offered a desire to become a better person for himself and others. In other words, Vick and his advisers seem aware of the commissioner's expectations and are trying to meet them.

In addition, and from a purely economic standpoint, the NFL may regard Vick's return as beneficial to its bottom line. Still only 28 and just three years removed from the Pro Bowl, Vick likely remains a dynamic player. He may also remain marketable, perhaps very marketable. After-all, in spite of his embarrassing lapses in judgment, including those with legal consequences (e.g., the "Ron Mexico"/genital herpes matter), Vick has a track record for attracting consumers' dollars.

Consider the tens of millions of dollars Vick earned from endorsement deals with Nike, Coca-Cola, Kraft, and other companies -- companies that saw Vick misbehave and then listened to social critics lambast him, and yet they still deemed Vick to be a good investment. Or consider that Vick's #7 Falcons jersey was consistently among the top-selling NFL jerseys during his heyday. Although Vick's prison time and dog abuse crimes have unquestionably and, in some ways, irreversibly tarnished his reputation, the jury is still out as to whether consumers would again find it worthwhile to invest dollars in him.

* * *

To read the rest, click here. Also, I'll be interviewed on CNN tomorrow morning on the network's "American Morning" program (its broadcast between 6 and 9 a.m.) to discuss Vick's future. The interview may also air later in the day on CNN's other programs and Headline News. Hope you can watch.

 
"Redskins" Case and the Dangers of "Reply All"

After the Washington Redskins won at the D.C. Circuit last week, which I discussed here, the team's law firm learned a valuable lesson in the dangers associated with the "reply all" function of Microsoft Outlook. The legal gossip blog Above-the-Law has a series of e-mails exchanged by lawyers at the victorious law firm.

Tuesday, May 19, 2009
 
WADA-code in the EU


The World Anti-Doping Agency (WADA) is the foundation which has been established to promote, coordinate and monitor the fight against doping in all forms of sport. In pursuing this aim WADA cooperates with intergovernmental organizations, governments, public authorities and other public and private bodies fighting against doping in sport.

One of the most important tools for WADA in the fight against doping in sport is the implementation of a harmonized set of anti-doping rules, the World Anti-Doping Code (the Code). Pursuant to the Code drug-testers must be able to administer out-of-competition tests anytime and anywhere without prior notice. This is believed to be an effective deterrent against drugs cheats. The key provisions of the Code are that athletes must:

  • Provide whereabouts and be subject to testing 24 hours a day, 7 days a week, 365 days a year;

  • Identify their location for each day in the following three months and update it should it change; and

  • Specify one hour each day between 6am and 11pm during which they can be located at a specified location for testing.
Recently the WADA-code has been introduced for professional sportsmen in the EU, but now the question has been raised whether this is acceptable from a legal perspective?

According to the "Council of Europe Anti-doping Convention" anti-doping controls should be carried out at appropriate times and by appropriate methods without unreasonably interfering with the private life of a sportsman. In the light of the above, the information to be provided concerning the whereabouts should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out of competition testing and avoiding the collection of information that might lead to undue interference in athletes' private lives or reveal sensitive data on athletes and/or third parties.

Furthermore it is also being discussed whether the whereabouts imply a breach of the European privacy laws, namely, the right to privacy and family life under the provisions of article 8 of the European Convention on Human Rights of 1950. Legal challenges under Data Protections Laws and the EU Working Time Directive are being considered. These regulations provide that every employee is entitled to 20-24 days of annual holiday. Regarding the whereabouts, if an athlete has to make himself available for a drug test 365 days a year, how can the whereabouts comply with this legal provision?

Legal rulings within the next months/years will probably determine the outcome of the discussion. A group of 65 athletes, cyclists, footballers and volleyball players has already filed a complaint with the Belgium's Council of State. If the case is successful in Belgium, it could undermine the work of the World Anti-Doping Agency and be used as a precedent to contest the ruling in other courts around the world.


Monday, May 18, 2009
 
On Jeremy Mayfield: You’ve Got a Fast Car, and an Unusual Drug Policy.

Let me start this post about Jeremy Mayfield’s indefinite suspension for violating NASCAR’s new drug policy with two admissions. First, for many years, my favorite stock car driver was Cole Trickle. Second, I have found myself shouting “shake and bake”(in my head) after making a good point in class. Over the past few years, however, I have gained a new appreciation for NASCAR and real stock car drivers, and Trickle has slipped out of my top spot (I’m not ready to give up on shake and bake yet).

Now, on to the Mayfield situation. Most of you have probably read the stories by now, but here’s a quick recap of some of the key facts. For nearly twenty years, NASCAR only tested drivers if there were a “reasonable suspicion” that the driver was using drugs. In 2007, a push was made—both by NASCAR drivers and NASCAR management—for a stricter drug policy after Aaron Fike admitted that he had used heroin on days when he was competing in a NASCAR Truck series race. Fike was not suspended by NASCAR until after he was arrested for possession of heroin in July 2007.
NASCAR’s new, stricter drug policy was revealed on September 20, 2008. The reason for implementing a stricter policy was clear—a driver under the influence of drugs racing at speeds well over 100 miles per hour presents a danger (Grave danger? Is there another kind?) to himself, other drivers and fans.

Under the new regime, which began on January 1, 2009, drivers and pit crew members will undergo mandatory preseason drug tests and random drug tests throughout the year, in addition to reasonable suspicion testing. Additionally, AEGIS, an independent laboratory, will conduct the drug tests for NASCAR, unlike under the previous policy, where NASCAR itself did (or, more commonly, did not do) the testing. Without question, these are all positive changes designed to make drug testing more effective and deception more difficult.

So, what’s the problem, and where’s the controversy? Well, NASCAR’s new policy has a few other interesting features. First, the policy does not identify the substances that are banned. Any drug—legal or illegal, prescription or over-the-counter—can result in a positive test. Second, the policy does not provide a clear list of penalties for failed tests. Instead, the policy indicates that a driver will be indefinitely suspended for a first violation and suspended permanently for a third violation, but NASCAR officials have noted that the policy allows for a permanent suspension for a first offense. Third, the policy provides no appeal for a suspended driver or crewmember. And, any reinstatement—if permitted at all—is conditioned on the entrance into a rehabilitation program.

So, to sum up, under NASCAR’s new drug policy, drivers can be suspended indefinitely, without appeal, for using an unspecified quantity of an unnamed drug. That is essentially what happened to Jeremy Mayfield earlier this month. The Mayfield saga (or is still the Mayfield story? When does something like this convert from a story to a saga?) allows us to focus on two questions:

First, why would NASCAR create a drug policy that does not have a list of banned substances (aka, who was the ad wizard who came up with that drug policy?)? If drug use by drivers is so dangerous, why not provide a list to the drivers of the drugs known to be dangerous? One obvious is answer is: because they can. Unlike in most of the other pro sports in the U.S., the players (here, drivers) had no input into the drug policy. In fairness, many of the drivers seem to support the new policy, though my guess is that Mayfield is not one of them.The other reason for a drug policy with no drug list comes straight from NASCAR:
The reason we don't have a list is we believe that a list is restrictive. As you've seen with a lot of other leagues, the policy is constantly changing. We know that there's new drugs out there every day. By having a broad policy that doesn't list anything, we feel like we can test for any substance that may be abused….

I want to be clear on that. We've never had a list. It states right now in our policy that cough medicine could be abused if you're taking that too much and it's going to affect the safety on the racetrack. That won't change. We'll test for anything. Our experts are very familiar with prescriptions people may be taking and legitimate medications, but we will not have a list.
Or, as Kyle Petty put it: "Look, a drug is a drug is a drug. This is not shooting hoops; this is not hitting a fastball. This is life and death. In a sport like this, everything should be off limits unless there is a medical reason."
NASCAR’s reasoning is simple—every drug is potentially harmful, so drivers should assume that every drug is off limits. If NASCAR were to come up with a list, it would look like this: Banned Substances: Everything. Of course, the same argument could be made by other sports organizations, yet the drug policies of the World Anti Doping Agency and all of the major professional sports leagues in the U.S. contain lists of banned substances.

Second, does the absence of a list increase the likelihood that Mayfield (or the next suspended driver) could successfully challenge the suspension in court? The short answer is: yes. I’m not claiming that Mayfield could successfully challenge the suspension, but I do think he has a stronger case because there is no list. NASCAR’s concern for safety is laudable, and they are no doubt right that abuse of any drug, whether it is cocaine, Sudafed, or Tylenol PM, can be dangerous when combined with cars moving at 150 miles per hour. The question is, do NASCAR’s legitimate concerns justify the creation of a drug policy with no list of banned drugs? And, if not, is there anything a potential plaintiff like Mayfield can do about it?

As a general rule, courts are reluctant to interfere with the disciplinary decisions of private, voluntary associations, such as NASCAR. Under this principle of judicial noninterference, courts will defer to private associations and only interfere in one of three circumstances: 1) when the association’s rules or conduct are contrary to public policy or violate concepts of fundamental fairness; 2) when the association violates its own rules; or 3) when the association’s decision is motivated by prejudice, bias, or bad faith.

Here, however, Mayfield has a stronger argument for judicial interference because NASCAR is not the typical voluntary, private association. In two different cases involving challenges to the results of NASCAR races, the Second Circuit held that NASCAR is entitled to less deference because it is “a for-profit company that completely dominated the field of stock car racing and…its members have no rights whatsoever with respect to the internal governance of the organization.” See Crouch v. NASCAR, 845 F.2d 397, 401 (2d Cir. 1988); Koszela v. NASCAR, 646 F.2d 749 (2d Cir.1981). The Second Circuit also noted “courts have demonstrated more of a willingness to intervene in the internal matters of private associations when they conclude that there are inadequate procedural safeguards to protect members' rights.” Crouch, 845 F.2d at 401.

Mayfield could thus argue that NASCAR’s list-less drug policy is contrary to public policy and violates concepts of fundamental fairness. Rules must be sufficiently clear to permit people to draw a clear line between permissible and impermissible conduct, so that they may avoid engaging in unlawful behavior. An argument can be made that it is fundamentally unfair to punish someone for engaging in conduct they did not know was unlawful. If NASCAR wants to protect its drivers and fans, it should provide more information, not less, about what types and quantities of drugs might pose a threat to safety. (NASCAR’s response, of course, will be that the drivers should know that use of any drug might violate their drug policy, so they should avoid all drug use—prescribed or not—before getting approval from NASCAR officials.)

Mayfield could also argue that the absence of any explicit standards for identifying a positive drug test permits the drug administrators to apply the drug policy subjectively and on an ad hoc basis. And, with no rules to follow, the drug administrators are more likely to be able to make arbitrary and discriminatory decisions. With no standards, no list, and no right of appeal, Mayfield has an argument that NASCAR does not have adequate procedural safeguards in place to protect the rights of suspended drivers.

More on this (and my discussion of the relative merits of RC Pro Am and Mario Kart) to come…

Saturday, May 16, 2009
 
"Tie goes to the runner" and other myths

I recently have been reading journalist Bruce Weber's book, As They See 'Em: A Fan's Travels in the Land of Umpires. It is a fun read, providing great insight into the history, politics, and nuances of umpiring. I was interested in it for the insight it may shed on the much-despised judge-umpire analogy, this time from the umpire perspective. I may write a book review on it, focusing on the analogy and what it teaches us about that.

For now, I wanted to mention one thing that caught my eye. As far back as Little League, we learned (and constantly repeated whenever there was a close play) that "the tie goes to the runner." Apparently, this is false. Rule 7.01 states that "A runner acquires the right to an unoccupied base when he touches it before he is out." Thus, the runner is out unless he beats the throw and/or tag to the base.

This is an interesting example of default rules and burdens of persuasion in action. The default is that the runner is out unless he affirmatively beats the throw. In a sense, the runner has the burden of proof that he is safe and his failure to meet his burden (his failure to beat the throw) means he is out. Weber does not get into the origins or rationale for the rule or the origins of the myth. But it is one more thing that umpires do that we do not understand.

Friday, May 15, 2009
 
"Redskins" win (again), for now

I've previously blogged about challenges to the trademark registration of the Washington "Redskins". Via How Appealing, the DC Circuit has once again affirmed the dismissal of plaintiffs' challenge to the trademark because of laches in the Harjo case (for a discussion of the issues, see this law.com piece). The court's decision is here. The decision does not touch on the substance of the plaintiffs' claims, which may yet be addressed in future litigation.

UPDATE (May 16): The bloggers at the Volokh Conspiracy have four posts up on the issue:

The Ethics of Naming Sports Teams After Ethnic Groups

"'I Am a Red-Skin': The Adoption of a Native American Expression (1769-1826)"

American Indians' Views of the Redskins

Laches Proves To Be the Most Valuable Player


Wednesday, May 13, 2009
 
Andrew Oliver Scores Another Victory in Oliver v. NCAA

Back in February, an Ohio state court ruled in favor of Oklahoma State University star pitcher Andrew Oliver in his lawsuit against the NCAA (a decision that the NCAA will undoubtedly appeal once the trial is complete). Oliver had been suspended by OSU after news emerged that, years earlier, he had met with Minnesota Twins representatives with his attorneys while contemplating whether to retain his amateur status and attend college or turn pro after high school. Oliver contends the rule which prohibited that meeting interfered with his attorney-client relationship and was against public policy (For more background see Alan Milstein's post and posts by others, including one on the NCAA Compliance Blog and those with competing viewpoints from Rick Karcher and Tassos Kaburakis).

Yesterday, the same Ohio state court issued a ruling finding that there is probable cause that the NCAA is in indirect civil and criminal contempt of both a temporary restraining order, which had been issued last August, and the court's order in February. The NCAA has seven days to show why it should not be held in contempt.

The court has requested a variety of documents relating to NCAA communications with Oliver and other impacted parties. For more, including the court's discussion over the kinds of information that should be redacted, see this link.

Tuesday, May 12, 2009
 
Roger Clemens' Interview on ESPN Radio

I have a new SI.com column on the legal implications of Roger Clemens' interview this morning on ESPN Radio's Mike & Mike in the Morning. An excerpt of the column is below.

* * *
Clemens' decision to appear on Tuesday's radio program probably did not please his attorneys. Persons who are facing possible indictments and criminal trials are typically discouraged by their counsel from answering questions in the absence of legal protections. In addition, by reminding a national audience of the gravity of his alleged crimes and by unequivocally insisting that he is a victim of others' wrongdoing, Clemens makes it harder for the Justice Department to even consider dropping or moderating its case against him. In that same vein, Clemens' decision to appear on a national radio show suggests that his focus is on the "public trial of his reputation," which, if true, may ultimately harm his prospects in a criminal trial of his legal rights. Put another way, Clemens needs to put aside concerns about the public's disbelief in him and focus on the specific goals of defending himself from criminal conviction.

* * *

To read the rest of the piece, click here.

 
Are pirate nicknames OK? (Half-serious)

The ongoing story of the Somali pirates has brought the serious legal issue of piracy to the fore, with commentators repeatedly noting the heinousness and seriousness of piracy as a crime, which is lost in the mythos of eye patches and bottles of rum and parrots.

So that led me to wonder, in only half-seriousness (maybe only 37 % seriousness), whether pirate nicknames for sports team have become inappropriate. Obviously they are not racially or ethnically charged or offensive, so people are not going to get worked up about this. Still, it does refer to a class of anti-social people who commit what are widely regarded as crimes against the entire world. Isn't calling your team "Pirates" equivalent to calling it "Hijackers" or "Guerillas" or "Terrorists"? Or at the very least "Armed Robbers"?

Monday, May 11, 2009
 
Release of New Journal on NCAA Compliance


On behalf of the Center for Law and Sports at Florida Coastal School of Law, I am pleased to announce our new publication, the Journal of NCAA Compliance. The Journal will be comprised of essays written by Coastal Law students containing detailed summaries of the latest NCAA compliance rulings as well as short articles on contemporary issues in NCAA compliance. It will also occasionally feature outside articles authored by athletic department compliance staff.

Compliance departments across the country have provided and continue to provide Coastal Law students and graduates with invaluable internship experiences, and the Journal serves a unique educational purpose for Coastal Law students enrolled in the sports certificate program. The summaries will provide a basis for practitioners, faculty and students to comment on trends, inconsistencies, possible advocacy strategies and areas of reform. These summaries will also focus on the specific sanctions imposed, with references to previous compliance decisions involving similar rules violations.
The Journal is an online publication that will publish six issues annually, one issue every two months. The inaugural issue (March-April) can be accessed on a complimentary basis here. For information about how to subscribe for subsequent issues, click here. The current issue (May-June) contains a summary of the recent compliance ruling involving academic fraud at Florida State University. FSU has appealed that ruling as it relates to the Infractions Committee's decision to vacate wins.

 
New Sports Law Scholarship

Recently published scholarship includes:
Steven B. Berneman, Note, One strike and you’re out: alcohol in the Major League Baseball clubhouse, 11 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 399 (2009)

Paul T. DeRousselle II, Comment, Personal foul! How the Supreme Court allowed the Tennessee Secondary School Athletic Association to violate Brentwood Academy’s First Amendment rights, 36 SOUTHERN UNIVERSITY LAW REVIEW 173 (2008)

Nathaniel Grow, Reevaluating the Curt Flood Act of 1998, 87 NEBRASKA LAW REVIEW 747 (2009)

Michael Halper, The tax ramifications of catching home run baseballs, 59 CASE WESTERN RESERVE LAW REVIEW 191 (2008)

Casey A. Kovacic, The real BCS: black coach syndrome and the pursuit to become a college head football coach, 36 SOUTHERN UNIVERSITY LAW REVIEW 89 (2008)

T. Matthew Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Discipline Policy, 16 UCLA ENTERTAINMENT LAW REVIEW 119 (2009)

Surina Mann, Note, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.: the First Amendment versus the right of publicity in the Eighth Circuit, 31 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 303 (2009)

George T. Stiefel III, Comment, Hard ball, soft law in MLB: who died and made WADA the boss?, 56 BUFFALO LAW REVIEW 1225 (2008)

Patrick K. Thornton and Christopher James, Down two strikes, is Major League Baseball already out?: how the 8th Circuit balked to protect the right of publicity in C.B.C. v. MLB, Advanced Media, 50 SOUTH TEXAS LAW REVIEW 173 (2008)

Salvatore Vetrini, Comment, Balancing the individual and societal interests under the First Amendment: how the Eighth Circuit saved fantasy baseball [CBC v. MLBAM], 29 PACE LAW REVIEW 199 (2008)

Saturday, May 09, 2009
 
On Being Manny, Part II (the sequel): Can the Dodgers Terminate Ramirez?

There have been a lot of questions raised (including in the comments of the previous post) about the possibility of the Dodgers suspending or terminating Manny Ramirez for his use of human chorionic gonadotrophin (“hCG”). I think it’s fairly clear, however, that the Dodgers cannot punish or terminate Ramirez for his use of the banned performance enhancing substance.

It is certainly true, as many have pointed out, that the Major League Baseball standard player contract contains a broad morals clause. The provision, section 7(b), states that

The Club may terminate this contract upon written notice to the Player (but only after requesting and obtaining waivers of this contract from all other Major League Clubs) if the Player shall at any time: (1) fail, refuse or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class.

The standard player contract also contains a “loyalty” clause, which states that:

The Player agrees to perform his services hereunder diligently and faithfully, to keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.


Does use of a banned female fertility drug conform to the “standards of good citizenship”? Does it “conform to high standards of personal conduct”? Maybe, maybe not, but the answer is irrelevant. This is unlikely to lead to any man (or woman) of the year awards for Ramirez, but the MLB Program explicitly forbids teams from taking any action against a player for use of a banned substance: “No Club may take any disciplinary or adverse action against a Player (including but not limited to a fine, suspension, or any adverse action pursuant to a Uniform Player’s Contract) because of a Player’s violation of the Program.” Instead, the Program vests the Commissioner with the exclusive authority to discipline players for violations. Despite the broad language of the MLB standard player contract, the specific language of the MLB Program will control. So, we should not expect to see any disciplinary action from the Dodgers.

Thursday, May 07, 2009
 
On Being Manny.

As some of you may have noticed, Manny Ramirez was suspended for 50 games today for violating Major League Baseball’s Joint Drug Prevention and Treatment Program (the “MLB Program”). According to reports, Ramirez does not plan to appeal the suspension, but I will go out on a bit of a limb here and suggest that we may be hearing a bit more about this story in the next several days. So, as you prepare for the onslaught of Manny coverage and ponder the impact this might have on Brett Favre’s potential un-retirement, here are some of the basic questions raised by this story, with a few answers. Please add your own thoughts, questions, and answers in the comments.

1. Did Ramirez test positive for a banned substance? Apparently yes, but while many of the articles floating around the internet today are claiming that Ramirez was punished because of the positive test, the NY Times is reporting that the suspension was not triggered by the test itself. According to the Times,

Results from urine samples provided by Ramirez showed traces of substances that raised concerns among baseball officials but it was unclear if it was enough to suspend him, according to people in baseball briefed on the matter. The officials investigated further and found evidence in Ramirez’s medical files that he was using Human Chorionic Gonadotropin (H.C.G.), a fertility drug for women that has been known to be used by athletes to generate the body’s production of testosterone after steroid use.


2. Why is he being suspended for 50 games? HCG is specifically listed as a banned performance enhancing substance in the MLB Program. A positive test for HCG, or any other banned performance enhancing substance, would have triggered an automatic 50 game suspension. However, even absent a positive test sufficient for the automatic suspension, as was apparently the case here, the MLB Program permits the Commissioner to discipline a player for “just cause.” The evidence found in Ramirez’s medical files was apparently sufficient to provide Bud Selig with just cause to suspend him.

3. How many Manny Being _____ jokes will this incident spawn? There’s no telling. So far, I have seen “Manny Being Medicated,” “Manny Being Barry,” “Manny Being Sketchy,” and “Manny Being Pregnant.” I have high hopes for the efforts to come from Jon Stewart and the NY Post.

4. Could Ramirez have filed an appeal? Yes, the MLB Program provides players with a right to appeal to an arbitration panel. And, unlike the strict liability policy used by the NFL, the MLB Program permits the arbitration panel to review the Commissioner’s “just cause” determination and to overturn a suspension if the player can prove that his “test result was not due to his fault or negligence.” The player “cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the ‘positive’ test result.”

5. Why isn’t Ramirez filing an appeal? The most likely answer is that he knew the appeal was unlikely to be successful and he wants to start the clock on the 50 day suspension so he can get back on the field for the second half of the season. (Note: “That’s just Manny being _____” is also an acceptable response to this and all questions that inquire into Ramirez’s motivation for doing anything).


6. Why is it likely that his appeal would have failed? Ramirez does not deny taking the banned substance. Here is his statement: “Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy.” Players have long been warned that they should consult league drug administrators before taking medication or over-the-counter supplements to ensure they are not unintentionally ingesting a banned substance. It is unclear what type of evidence Ramirez would have needed to present to prove that he was not at fault or negligent, but it is highly unlikely that proving that his doctor failed to properly check the banned substance list (as, perhaps, opposed to proof that the doctor sabotaged or defrauded him) would have been sufficient.

7. What is the fastest land animal? The cheetah.

8. Why was Ramirez taking a female fertility drug? According to Yahoo! Sports, the drug was prescribed to address Ramirez’s erectile dysfunction. (Insert your own joke here).

9. If Ramirez had a legitimate medical need for the drug, why is he being punished? Players are permitted to take a prohibited substance for legitimate medical reasons as long as they get prior approval from the Independent Program Administrator of the MLB Program. As the MLB Program states, a player “authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption(“TUE”)….A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance.” Apparently, Ramirez never received—or, from all reports today, requested—a TUE.

10. Is Jose Canseco the smartest man alive? Probably not, but he did predict that it “is most likely, 90%,” that Ramirez was one of the players that tested positive for performance enhancing drugs in 2003. Of course, if Ramirez is telling the truth, he only “recently” started using a banned substance and has otherwise been performance-enhancing-drug-free during his career.

11. How bad is this for baseball? Well, on the one hand, pretty bad. The two highest paid players in baseball have now admitted to using banned substances. And, of the 8 active or recently retired home run leaders (Bonds, Griffey Jr, , Sosa, McGwire, Palmeiro, A-Rod, Thome, and Ramirez) all but 2 (Griffey and Thome) have been tied to some form of steroid use. On the other hand, the league can argue that this proves that the drug testing policy does work (ie, it catches “cheaters”) and Congress doesn’t need to get involved (or get any more involved than they have already been). It also sends a fairly strong message to other players in the league—if you are caught, even if you are a superstar, you will be suspended.

12. I have Ramirez on my fantasy baseball team. Can I sue him? Well, first I'd recommend that you try trading him to one of your friends who doesn’t sit in front of a computer all day and may not have heard the news. Doctors are usually a good bet. If not, I hope to cover that issue (and the slightly more serious issue of whether the Dodgers, fans, etc., have any legal recourse) in the next few days.

 
Who's Responsible for Collapse of Cowboys' Practice Facility?

Earlier this week, I wrote a column on SI.com on questions of responsibility for the tragic collapse of the Dallas Cowboys' practice facility. Below is an excerpt.

* * *

The second and more worrisome area for the Cowboys is tort law and specifically Texas law on negligence. Negligence refers to unreasonable behavior, be it the form of carelessness or inattentiveness.

Whether the Cowboys behaved negligently could be examined from multiple perspectives. Here are a few:

• Did the Cowboys construct an adequately safe facility for the typical weather conditions found in Irving, Texas, this time of the year?

• How typical or atypical were the specific weather conditions experienced by the facility when it collapsed? If the stadium was designed and constructed to withstand winds in excess of 100 miles per hour, does its failure to do so suggest substandard maintenance on the part of the facility's operators, the Cowboys?

• How much warning did the Cowboys have about the inclement weather May 2, and would a reasonable employer in that situation have cancelled practice?

• Did any Cowboys' personnel have knowledge or insight that the five-year-old facility could have been at risk of collapsing during stiff winds. If so, did the team do anything with this information?

• Did the injured persons have notice about the structure's apparent shortcomings -- could the injured persons have been comparatively negligent for their own injuries? (Texas, like most other states, uses a system of comparative negligence, meaning if a plaintiff is partly responsible for his/her own injury, he or she cannot recover for the percent of damages attributable to the his or her own negligence).

* * *

To read the rest, click here. I appreciate several writers discussing the column, including Charleston School of Law Professor Sheila B. Scheuerman on Torts Prof Blog, John-Jacques Taylor of the Dallas Morning News, and Mile High Report. Also, for more torts-talk, Harvard Law School Professor Jon Hanson and I recently published our law review article Situationist Torts.

Wednesday, May 06, 2009
 
Can the NBA and NFL Place Teams in Europe? Exploring the EC Antitrust and 'Free Movement' Risk

With talk of the NFL hosting a Super Bowl in London, some sports fans are beginning to wonder if we will soon see U.S. sports leagues place teams in Europe.

In a recent law review article, Brian Doyle and I argue that before either the NBA or NFL could expand into Europe, these leagues would need to first abandon their age/education requirements and alter their reserve rules.

While the NBA and NFL age/education requirements might be legal in the United States, these requirements are much more likely illegal under Article 81 of the Treaty Establishing the European Community (the EC's counterpart to Section 1 of the Sherman Act).

The NBA and NFL age/education requirements likely violate Article 81 of the EC Treaty, even though the EC recognizes a non-statutory labor exemption to antitrust law, because the European Court of Justice defines its non-statutory labor exemption more narrowly than the Second Circuit did in Clarett v. National Football League, 369 F.3d 124 (2004).

In addition, the NBA and NFL reserve rules may violate Article 39 of the EC Treaty by preventing "free movement" of European nationals between teams located in EC member states.

To learn more about the antitrust risks of U.S. sports leagues expanding into Europe, please visit Marc Edelman & Brian Doyle, Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe, 29 N.W. J. of In'tl L. & Bus. 403 (2009).


(Cross-Posted on SportsJudge Blog)

 
Indictments in Toledo Point Shaving Scheme


The U.S. Attorney in Detroit has announced the indictment of two Detroit-area businessmen and six former University of Toledo athletes in connection with point shaving between 2004 and 2006. Howard blogged about the story in March, 2007. Coverage from the Free Press here. According to U.S. Attorney Berg:
Today’s charges shine a light into the dark corner of illegal bookmaking and reveal the unfortunate consequence that the influence from betting can have on the integrity of both athletes and athletic contests.
The press releases is posted here .

UPDATE (May 8): The Toledo Blade has coverage here and has posted the full indictment here.

Tuesday, May 05, 2009
 
Has NCAA's Investigation in Reggie Bush/O.J. Mayo Changed USC's Recruiting?

Ramona Shelburne of the LA Daily News has an in-depth article on the University of Southern California apparently rejecting a verbal commitment by basketball phenom Renardo Sidney to play there. It is possible that the NCAA's investigation into the Reggie Bush and O.J. Mayo matters drove USC's decision. Ramona interviews several persons, including Duke law prof Paul Haagen and me, for the story. Here's an excerpt.

* * *

When Sidney announced in February he was verbally committing to USC, it was met with a mix of envy and head- scratching around the country and in its own department - envy that USC would reap the benefits of the 6-foot-9 star's considerable talent, but head-scratching the Trojans would go down this dangerous path again after getting burned by the O.J. Mayo and Reggie Bush affairs, which have recently been merged into a single ongoing NCAA investigation, a lawyer involved in the Bush case confirmed Wednesday.

Two months have passed, and it seems USC might have scratched its head hard enough to finally knock some sense into it. In the past two weeks, the Trojans have backed away from Sidney . . . [Sidney will apparently play at Mississippi State next year and then enter the 2010 NBA Draft, where he will likely be a lottery pick]

* * *

"It seems that these incidents are no longer about Reggie Bush or O.J. Mayo, they're about USC," said Vermont Law School professor Michael McCann, who served as counsel to Maurice Clarett in his lawsuit against the NFL. "I think the suspicion is that if the allegations are true, and there were multiple opportunities for players to be paid without the school taking the appropriate actions to prevent that, it's more systemic."

McCann points out in cases involving basketball stars who can leave for the NBA after one season, the school bears almost all of the future risk if a violation is later discovered.

"In a way, the system creates incentives for a player to go to college for a year knowing that they're not going to stay, so that by the time allegations come to the surface, the player will have already left and there's no way of holding him accountable," McCann said.

So would taking a step back from a controversial figure such as Sidney have any effect on the pending investigations?

"I think maybe there's a benefit to it, but if the department acted wrongly in the past, they're going to be held accountable for it," McCann said.

Paul Haagen, a Duke law professor and co-director of the university's Center for Sports Law and Policy, said it's not immediately clear whether the merging of the NCAA investigation reflects a more serious tenor to the case, or if it's merely a matter of bureaucratic housekeeping.

"Two things could be going on. Bureaucratically, you have two cases with largely the same set of issues and limited resources, so why not just send one investigator out there?" he said. "Or, more likely, what they're now doing is saying this is one institution, and the same smell keeps happening around it. If we broaden it, maybe they will take it more seriously.


* * *

For the rest of the article, click here. For a NY Times piece on Renardo Sidney, click here.

 
Sanctioned Offenses

An Attempt to Unravel How Yuriorkis Gamboa Became the “Interim WBA Ordinary World Featherweight Champion of the World”

Boxing fans, meet your “Interim World Boxing Association Ordinary World Featherweight Champion of the World,” Yuriorkis (El Ciclon de Guantanamo) Gamboa, 15-0 (13 KOs). Gamboa, a former Cuban amateur legend and 2004 Olympic gold medalist, won the “Interim World Boxing Association Ordinary World Featherweight Championship” with a dominating performance against veteran Jose Rojas after steamrolling his way through the middle ranks of the featherweight division. It is undisputed in boxing circles that Gamboa is a world-class contender that is ready to face the featherweight division’s top brass. How he became the “Interim World Boxing Association Ordinary Featherweight Champion of the World,” however, is beyond comprehension for the average boxing fan or sports law attorney. That is because the “World Boxing Association Ordinary World Featherweight Champion of the World” (hereinafter the “WBA featherweight champion”) is the undefeated Chris (The Dragon) John, 42-0-2 (22 KOs), who has successfully defended his title 12 times since winning his own “interim” WBA title back in 2003.

John holds victories of some of the most talented featherweights in boxing, including Juan Manuel Marquez, who makes a strong argument for being the best pound-for-pound boxer in the sport today. “The Dragon” last defended his title on February 28, 2009, drawing with former 2000 U.S. Olympic silver medalist Rocky Juarez. He is scheduled for a rematch with Juarez on June 27, 2009, a mere four months after their draw. In the meantime, on April 17, 2009, less than two months after John’s draw against Juarez, Gamboa won the “interim” WBA featherweight title by stopping Rojas in 10 one-sided rounds. If John fought less than two months earlier, the question is begged as to what happened between February 28, 2009 and April 17, 2009 to justify staging Gamboa vs. Rojas for the “interim” WBA featherweight title? The answer shines an unfortunate light on one of several Gordian knots that must be cut to begin to understand the inner machinations of boxing’s sanctioning bodies: the Rules of the World Boxing Association (hereinafter the “WBA Rules”)...

For the full article, please go to http://www.8countnews.com/news/125/ARTICLE/1566/2009-05-03.html.

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. ©

Monday, May 04, 2009
 
CBS Scores Big Win in Fantasy Case


Times are not good for the intellectual property rights of athletes whose names are used for fantasy sports websites. In the wake of the Eighth Circuit's ruling in CBC Distribution v. MLBAM, 505 F.3d 818 (2007) [discussed here], the district court in Minnesota, concluded that CBS Interactive may use NFL players' names and statistics for its fantasy games, without any license agreement from the NFL or NFLPA. In so doing in this declaratory judgment action, it dismissed right of publicity claims by the respective sports organizations.

This result is not surprising, since the Minnesota court is in the Eighth Circuit and CBS chose the court in large part because of the MLBAM precedent, which has not been extended to any other circuit.

Judge Ann Montgomery, in CBS Interactive v. NFLPA, Civil No. 08-5097, focused on claims involving subject matter jurisdiction and transfer of the case to Florida (which is out of circuit), where the NFLPA filed a similar lawsuit. In classic civil procedure analysis, the court stated: "Taken in the light most favorable to CBS Interactive, the record shows that Players Inc., through its own contacts with Minnesota as well as the contacts of NFLPA made for the benefit of Players Inc., purposefully availed itself of the privilege of conducting activities in Minnesota and that Players Inc. should have reasonably anticipated being haled into court here.
It further held that "those publicity rights emanate from the individual players, a portion of whom reside in Minnesota, and some of the Group Licensing Agreements that transfer those
rights to NFLPA (and ultimately to Players Inc.) are executed by individual players who reside in Minnesota. In addition, the assertion of those publicity rights occurs on a national basis and affects Minnesota consumers of products and services related to the NFL, including consumers of fantasy football. Although Minnesota's connection to the controversy in this action may not be comparatively stronger or weaker than that of any other fora, there is a sufficient connection," for jurisdictional purposes.



Although the NFLPA basically lost its case at that point, the court did turn to the merits and added a final coup de grace when it granted summary judgment to CBS Interactive, noting that the facts dovetailed the MLBAM case. As the court concluded, "the package of player information that CBS Interactive uses is no different than that described by the Eighth Circuit-it consists of names, player profiles, up-to-date statistics, injury reports, participant blogs, pictures, images, and biographical information. [citation omitted]" and comes within the "ambit of the First Amendment."

In a strange argument, the defendants claimed that football is not the "national pastime" as is baseball, so therefore, the “there may be ... weaker First Amendment interests at stake in this case, . . . which would lead to a different balancing of First Amendment and publicity rights interests than in [MLBAM].” The court would not get into such a hair-splitting debate and the argument, in my mind, was an almost desperate attempt to distinguish this case from MLBAM. And of course, once can argue that pro football is even more popular than baseball.

Despite the protestations of the players and their unions and licensing agents, the First Amendment is alive and well in the area of fantasy sports.



[Note: I have a close family member who works at the legal department of CBS. However, that person was not involved in this case]

Saturday, May 02, 2009
 
President Obama's First Supreme Court Appointment

With yesterday's announcement by Justice David Souter that he will be retiring at the conclusion of this current United States Supreme Court term, speculation has begun by those feverishly anticipating who President Barack Obama will appoint to replace the retiring Souter. One name that is at the forefront of the speculation is Judge Sonia Sotomayor. Many have opined that as a Latina Judge from the Bronx in New York City, that Judge Sotomayor represents the diversity and intellectual acuity that President Obama has indicated will guide his federal judicial appointments.

Those that follow Sports Law and this blog will readily recognize Judge Sotomayor's name as she has handed down some very important and controversial decisions in the realm of Sports and the Law in recent years. As a judge on the United States Court of Appeals for the Second Circuit, Judge Sotomayor famously authored the Clarett v. NFL opinion that rejected the District Court's finding in favor of Clarett and essentially approved the NFL's age restriction rule in connection with the NFL draft. Judge Sotomayor in reversing Judge Scheindlin's finding in favor of Clarett, held that the NFL's eligibility rules were protected from antitrust attack by the nonstatutory labor exemption. Both Maurice Clarett (Ohio State) and Mike Williams (USC) were prohibited from entering the NFL draft early and both flamed out of the NFL spectacularly after being drafted in 2005.

In addition, "in what may be her best-known ruling, Judge Sotomayor issued an injunction against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, the longest work stoppage in professional sports history, which had led to the cancellation of the World Series for the first time in 90 years."

Whether or not President Obama selects Judge Sotomayor to replace Justice Souter, her impact on sports related jurisprudence has been significant.