Sports Law Blog
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Wednesday, September 30, 2009
 
Nike Brings Back Michael Vick

Interesting news from Liz Mullen of Street and Smith's Sports Business Journal, as excerpted here:

Michael Vick has signed an endorsement deal with Nike, according to Mike Principe, managing director for BEST, the agency that represents Vick.

Principe would reveal no other details, but referred other questions to Vick’s personal agent, Joel Segal . . . “Mike has had a great relationship with Nike and is excited to be part of the Nike team again,” said Segal . . .

Vick will wear Nike shoes, gear and apparel. “He has always been a fan of the brand and looks forward to the relationship,” Segal said.

Vick had been a Nike endorser before, but the company dropped him in August 2007, after Vick was indicted on federal dogfighting charges.

For the rest, click here. For previous coverage of Vick and Nike on Sports Law Blog, click here.

Tuesday, September 29, 2009
 
The $500,000 Diet Seems to Work: Glen "Big Baby" Davis shows up to camp in shape

Last month, I blogged about Celtics forward Glen "Big Baby" Davis' new two-year, $5 million contract with the Celtics and the contract's inclusion of an annual bonus of $500,000 if Davis can avoid getting too heavy, which in the past has been a major problem for him.

Davis showed up to Celtics' training camp yesterday and it appears that he's in very good shape. Here's Rich Levine of Comcast Sportsnet:
We all have a good time making fun of Big Baby’s weight, but the truth is that it was a serious problem. Sure, he might be one of those naturally big-boned kind of guys, but he also loves to eat, and while the Celtics never voiced this publicly, the potential of Davis eventually eating himself out of the league was something that most definitely crossed their mind.

With this new deal, Davis will earn an additional $500K a year if he meets certain weight clauses, and from the looks of him Monday, Baby’s well on his way to scoring an extra half mil in the bank account.

I know this is hard to believe, but he looks cut. Yeah, there’s still a little of that Big Baby fat lingering around, but the weight loss is significant, and easily apparent.

“I’ve been working hard, man,” Davis said. “I picked up mixed martial arts; jujitsu, wrestling, boxing…. And it’s not only working out. I changed my diet a lot."
It appears that financial incentives--at least very, very lucrative ones--really can encourage people to eat better and exercise etc.

Interestingly, Davis isn't the only Celtic with weight issues, as Jeff Clark of Celtics Blog reports that the team signed former New York Knick and Chicago Bull forward Mike Sweetney to a non-guaranteed contract. Sweetney, who was a phenomenal player at Georgetown University and the ninth overall pick in the 2003 NBA Draft, has been out of the game for the last couple of years due to weight problems.

 
Sports Law Blog Bowl II: Toledo 41, FIU 31

I am happy to report that the University of Toledo (my school) defeated Florida International University (Howard's school) this weekend, 41-31. This avenges last year's loss.

Monday, September 28, 2009
 
Amicus Briefs filed in American Needle v. NFL

Friday was the deadline for the filing of amicus curiae briefs supporting the petitioner, American Needle, in American Needle v. NFL. According to the Supreme Court's docket, only two amicus briefs were filed:

  • A joint brief filed by the U.S. Department of Justice and the Federal Trade Commission, available here.

  • A brief by a group of economists including Rodney Fort, Brad Humphreys, Roger Noll, James Quirk, Stefan Szymanski, and Andrew Zimbalist, available here.

Interestingly, unless the Court's docket has not yet processed all amicus briefs filed on Friday, one notable omission from the list is the player's unions from the four major sports. It was previously reported by ESPN.com's Lester Munson that the unions were preparing to file amicus briefs in the case. If the unions are in fact waiting to file their amicus briefs, then they will apparently be filing briefs in favor of the respondent, the NFL. In that case, one would assume the unions will advocate single entity status for the leagues in at least some league functions, but not for purposes of labor disputes.

Update (Tues. Sept. 29, 8:45 am): It turns out that the Supreme Court's docket was just slow in processing all of the amicus briefs filed in support of American Needle. The ABA's website now has the following additional amicus briefs available for download:

  • A brief by the players' unions in the four major sports (i.e., the NFLPA, MLBPA, NBAPA, and NHLPA), available here.

  • A brief by the American Antitrust Institute and the Consumer Federation of America, available here.

  • A brief by the National Football League Coaches Association, available here.

  • A brief by the Merchant Trade Association, available here.

 
Defining sport: An illustration

From Kris Lines, who heads the Sports Law Program at Staffordshire University in the UK, comes this animated video on the issue of defining sport. It pointed out one additional reason for defining something as sport: At least in the UK, financial considerations (lower taxes and subsidies) turn on whether an activity is sport or merely exercise or a pasttime. And we already know the definition may determine things such as tort liability and Title IX compliance. In other words, this may be more than a parlor game--genuine consequences may attach to the answer to "what is sport".

Two quibbles: First, the video suggests that a definitional problem is created because some activities can be done either as sport or as a mere pasttime. For example, if a person rides his bike as fast as he can in a race it's a sport; if he rides leisurely going to school or work, it's not. Fair point, as far as it goes. But I think the key is whether the overall activity would be a sport (however defined) if played in a competitive environment, not whether the activity could be a sport in some environments and not others. Basketball clearly is a sport, even if I am just shooting the ball at home.

Second, the video looks to the IOC definition, which famously (and despite litigation in Canada) excludes women's ski jumping, although men's ski jumping is in the Olympics. But the IOC is not purporting to define sport in the abstract, only those sports that are staged at the Olympics. And determinations are not made based on criteria aimed at the "essence" of sport, but of pragmatic considerations of how to stage a good competition. Ski jumping is a sport, no matter who is participating. The IOC just concluded there is not enough interest in it from the women's side to stage a successful (and well-watched) competition.

Anyway, enjoy.


Sunday, September 27, 2009
 
The Debate Over Commercial Use of College Players' Identities Continues

Nathan Crabbe and Kevin Brockway of The Gainesville Sun wrote some interesting stuff yesterday regarding the profts made by the University of Florida from the commercial use of its players' identities.

Crabbe wrote about how the university aggressively works to stop businesses from profiting off Tim Tebow, except when its own products are involved. (See Profiting Off the Gators: A Fine Line Between What's OK and Not)

Brockway interviewed a handful of Gators' football players as to how they felt about the commercial use of their identities (See Tebow Happy to Let UF Use His Image). According to Brockway, Tebow and his family gave Florida permission to sell the No. 15 jerseys last season. And regarding the money that Florida makes from jersey sales, Tebow said that, if he had a choice, he would "choose to give it to maybe a Boys and Girls Club or something where you could help underprivileged kids."

Friday, September 25, 2009
 
Why PETA Shouldn't Blame Roger Goodell for Michael Vick's Return

This Sunday marks Michael Vick’s official return to the National Football League—an event that has been widely criticized by People for the Ethical Treatment of Animals (“PETA”), as well as some sports writers and doggie bloggers.

What those who criticize NFL Commissioner Roger Goodell for reinstating Vick fail to understand, however, is that the NFL may have ultimately lacked any real choice. Had the NFL not reinstated Vick, Vick could have potentially filed an antitrust lawsuit against the 32 NFL clubs for concertedly refusing to deal with him. Even though such a lawsuit would have likely failed in the Second and Seventh Circuits (due to the holdings respectively in the Clarett and American Needle cases), a lawsuit against the NFL clubs would have likely gotten to a jury in the Third, Sixth, Eighth and D.C. Circuits—all places where professional athletes have previously won large antitrust settlements.

As a quick background in antitrust law, Section 1 of the Sherman Act, in pertinent part, states that “[e]very contract, combination … or conspiracy in the restraint of trade or commerce … is declared to be illegal.” Although most Section 1 claims involve restraints of trade related to product markets, the Sherman Act likewise prohibits restraints in labor markets, as long as these restraints occur outside of the proper workings of a collective bargaining agreement (“non-statutory labor exemption”).

Courts in general determine whether a particular restraint violates Section 1 of the Sherman Act in three steps. First, courts will determine whether a particular restraint emerges from a “contract, combination or … conspiracy” among two or more parties. Next, they will determine whether the restraint yields a net anticompetitive effect to consumers. Finally, they will assess whether any antitrust exemption would negate the finding of liability.

With respect to finding a “contract, combination or … conspiracy,” most courts outside of the Seventh Circuit have found that any decision made by a league commissioner is tantamount to an agreement made among each of the individual club-owners, given that club-owners elect the commissioner to act on their behalf. Thus, outside of the Seventh Circuit, Goodell’s original decision to suspend Michael Vick would be viewed no differently under antitrust law than if the 32 NFL owners sat in a room and all agreed to suspend him. (Of course, this could change depending on the Supreme Court’s pending ruling in the case American Needle v. Nat’l Football League).

As to the net effects of indefinitely suspending a player, a court would likely find these effects to weigh heavily in the direction of being anticompetitive because suspending a player from a premier sports league reduces consumers’ ability to attend games that would feature the boycotted player, presuming a team would otherwise choose to play him. Although the 1961 Southern District of New York case Molinas v. Nat’l Basketball Association had upheld the NBA’s indefinite suspension of a player under antitrust law, that case involved a peculiar set of facts (a player gambling on games in which he played) and has since been called into doubt by the Supreme Court’s decision in U.S. v. National Society of Professional Engineers, which explained that defendants may not use a rationale based solely on public policy to offset liability for anticompetitive conduct.

Finally, with respect to potential affirmative defenses, courts in the Third, Sixth, Eighth, and D.C. Circuits would probably not find any of these defenses applicable. While it is true that most terms of good-faith collective bargaining agreements are exempt from antitrust scrutiny under the non-statutory labor exemption, the NFL Personal Conduct Policy (unlike the NFL drug policy and anti-gambling policy) does not appear explicitly in the NFL Collective Bargaining Agreement, thus likely making it fall outside the exemption in these circuits. In addition, even though a group of NFL players purportedly approved the NFL Personal Conduct Policy in 2007, their approval is likely irrelevant because the NFL Collective Bargaining Agreement requires any changes or modifications to be signed in writing. There is no public record of such writing.

Thus, even if NFL Commissioner Roger Goodell had not reinstated Michael Vick into the league, Vick may still have gone to court and litigated his way back. By simply reinstating Vick, the NFL avoided the headache of legal action, minimized the risk of having to pay damages to Vick, and resolved this matter without drawing added attention to Michael Vick’s past misconduct.

Can PETA really blame the NFL for that?

***

(Article originally posted on 9/25 at 10:05 A.M. on Above the Law; for more details on the legality of commissioner suspensions, see my article in the 2009 Catholic University Law Review: Are Commissioner Suspensions Really any Different from Illegal Group Boycotts).

Thursday, September 24, 2009
 
Use of College Players' Identities in the Sale of Jerseys

For anybody who questions whether a jersey number constitutes a sufficient indicia of identity for establishing a right of publicity cause of action, check out this snippet from the L.A. Times.

Wednesday, September 23, 2009
 
Take Justice Sotomayor Out

Justice Sotomayor will throw out the first pitch at Yankee Stadium this Saturday, prior to the Red Sox-Yankees game. This fits in with a bunch of themes of the moment: She grew up in the Bronx (presumably as a Yankee fan, although I don't know), she famously "saved baseball" with her decision while on the Southern District of New York, and, as the first Hispanic Justice, is being honored as part of Hispanic Heritage Month.

(H/T: My ever-alert colleague Tom Baker)

Tuesday, September 22, 2009
 
More on American Needle

For those of you who just can't get enough of the NFL and antitrust law, I have posted on SSRN a draft of my forthcoming piece in the Wisconsin Law Review, titled,
The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense.

Here's the abstract:

Later this term, the Supreme Court will hear American Needle v. National Football League, a case that might fundamentally change professional sports and rewrite sports antitrust law. In American Needle, the Seventh Circuit held that the National Football League (NFL) acts as a single entity when licensing its intellectual property and thus is immune from scrutiny under Section 1 of the Sherman Act. Although the Seventh Circuit is the first circuit court to hold that a sports league is a single entity, the argument that leagues act as single entities has persisted for decades. Leagues view the single entity defense as the antitrust “holy grail,” because it shields them from Section 1 attack and costly antitrust litigation. Section 1 explicitly requires an agreement, and an agreement requires more than one entity. Thus, as a matter of law, a single entity cannot violate Section 1.

This Article argues that a single entity classification for sports leagues divorces antitrust immunity from the fundamental purpose of the antitrust laws and is theoretically unsupportable. Antitrust law is designed to act as a gatekeeper, filtering out net anticompetitive conduct. The Seventh Circuit’s single entity approach ignores the competitive effects of league conduct and distorts the basic rationale for distinguishing between single and multiple entity conduct. In doing so, it vests sports leagues with virtually free rein to engage in anticompetitive behavior. This Article also brings to light evidence of actual economic competition between NFL teams that proves that the Seventh Circuit’s single entity analysis in American Needle is factually unsupportable. This Article thus concludes that the Supreme Court should definitively put an end to the single entity defense for professional sports leagues. The Article also proposes a model for streamlining the rule of reason analysis and reducing the litigation burden on sports leagues.

Monday, September 21, 2009
 
Petitioner's Brief in American Needle Now Available

As Marc noted last week, American Needle's opening brief to the United States Supreme Court in American Needle v. NFL was filed on Friday. The brief is now available to be downloaded from the ABA's website. Based on the Supreme Court's docket, it does not appear that any amicus briefs were filed last week. However, under Supreme Court Rule 37, amicus briefs supporting the petitioner, American Needle, are not due until 7 days after the petitioner's brief is filed.

Saturday, September 19, 2009
 
The Tax Consequences of the Chicago Cubs Sale

The Tax Prof Blog posts insight from GWU Law Professor Sarah Lawsky on the tax ramifications of the sale of the Chicago Cubs.

Friday, September 18, 2009
 
NBA Locks Out Referees

Following up on a post from last week, the NBA formally declared today that it would lock out its referees, after renewed talks collapsed on Thursday. According to the New York Times, there are three major sticking points preventing the parties from reaching an agreement. First, the NBA wants to reduce and/or eliminate the severance payments it has traditionally made to referees who retire at age 55 or older. Second, the NBA is seeking to use WNBA and NBA Development League referees in a limited number of NBA regular season games, for training purposes. The Referees' Association had reportedly previously agreed to allow up to 75 such assignments, only to later reject the proposal. Finally, the league wants to switch the referees from a defined-benefit pension plan to a 401(k) system used by other NBA employees.

Unless the two sides are able to resolve these differences shortly, the NBA will use replacement referees when preseason games begin on October 1st.

 
More Cowbell . . . .

A few summer observations and other commentary:

First, over the summer, I was fortunate to visit for several weeks in Los Angeles and San Diego where I spent my formidable years growing up. I was struck repeatedly by something I had never noticed before. I spent nearly every day of my time in California at the beaches of my youth in San Diego and L.A., primarily Ocean Beach, Pacific Beach, Moonlight Beach (Cardiff-by-the-Sea), Carlsbad, Redondo Beach, Huntington Beach and Manhattan Beach, and I was shocked at the number of female surfers that now populate the beaches and ocean breaks. Growing up surfing (in the 1980s and 1990s) it was often an anomaly to find a female surfer amongst the boys and men. I remember thinking as a kid that it was bold and brave of the few females that I saw out surfing with us to join in the fray that often exists when grappling for waves. This summer, in 2009, it appeared to me that between 1/3rd and 1/2 of all surfers catching waves and hanging on the beaches were women and girls. I find this remarkable.

This got me to wondering, whether Title IX and the insurgence of female athletic opportunities in the past three decades or so has made it possible/acceptable/cool for young females to take up surfing and to join the boys and men that have dominated the sport (and the sets) for so long. A tremendous step forward I think, and one of the positive influences of Title IX and female athletic acceptability and opportunity. I was also reminded with the passing of Senator Ted Kennedy recently, that he was a staunch advocate of Title IX and the incredible opportunities that this legislation has provided to female athletes across the United States.

Second, while anticipating (and later relishing) the Ohio State vs. USC college football game last week, I watched several Big 10 commercials touting the league and the football programs within. I was struck by the commercial that highlights all eleven of the head football coaches in the Big 10 faux recruiting (see commercial here). I was reminded while watching the commercial, just how disheartening it is that not a single football coach in the Big 10 is a head coach of color. All of the coaches are white. While the Big 10 is purportedly one of the power conferences in the BCS line-up, and while at least 50% of the athletes in that conference are African American, there is not one African American head coach to speak of in the Big 10. As i have written many times in this blog space, it is simply inexcusable for University administrations and athletic directors to continue to recruit African American players in droves to their programs, to reap the significant financial reward on the backs of these players and to continue to refuse to hire African American head coaches to lead these athletes. I found this commercial to be emblematic of the continuing race discrimination in collegiate football coaching.

Third, as highlighted briefly by Professor McCann here, the National Football League, in addressing former race discrimination in its league, pursued an aggressive policy of equality by extending its successful Rooney Rule to all upper level management hires in the NFL. As discussed often on this blog, the Rooney Rule, which requires all NFL owners to meaningfully interview at least one minority candidate for each head football coach opening, has made a significant difference in the league and has provided a welcomed equal opportunity policy for coaches of color that had previously been shut out of head coaching interviews and opportunities. During the summer, Commissioner Roger Goodell extended the Rooney Rule to all front office hiring decisions, requiring NFL owners to meaningfully interview at least one minority candidate for front office hires (General Manager, etc.) going forward. While lightly noticed during a summer of discontent and discord in the NFL (i.e., Vick, labor issues, Stallworth, etc.), this move will ensure a more level playing field for a professional sports league that continues to lead out on this front.

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Wednesday, September 16, 2009
 
News That Myles Brand Has Passed Away

I just received received an email alert from the Sports Business Daily that NCAA President Myles Brand died from pancreatic cancer at age 67.

 
Opening Brief in American Needle v. NFL Set for Friday

For those who have been following the Supreme Court case American Needle v. NFL, this Friday clothing manufacturer American Needle Inc. will file its opening brief, arguing that the Seventh Circuit Court of Appeals was wrong to define the NFL as a single-entity under Section 1 of the Sherman Act.

As many of you know, I have long agreed with American Needle's view that the NFL should be treated as a collection of 32 separate clubs, and not as a single entity. To me, this issue was best resolved by the Second Circuit back in the 1982 case North American Soccer League v. Nat'l Football League, in which it held "the sound and more just procedure is to judge the legality of [sports league] restraints according to well-recognized standards of our antitrust laws rather than permit their exemption."

Michael McCann seems to share my view as well, based on the contents of his forthcoming law review article.

Currently, the Second Circuit's view remains in the overwhelming majority, as seven previous courts have upheld this view and rejected the NFL clubs' single-entity argument. The Seventh Circuit meanwhile remains alone in its iconoclastic position that single-entity status should be determined one league at a time, one function at a time.

Tuesday, September 15, 2009
 
Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

 
Native Americans File for Cert in Their Challenge to the Washington Redskins Trademark

ESPN.com is reporting that the group of Native Americans which challenged the Washington Redskins trademark have filed a petition for a writ of certiorari at the United States Supreme Court, seeking a review of the D.C. Circuit's opinion in May rejecting the challenge on laches grounds. Geoff has previously covered the case here, here, and here. The Redskins will now have 30 days to file a brief opposing the petition with the Court.

Having not yet seen a copy of the Native American group's cert petition, it is difficult to gauge the strength of their position, but in general this doesn't seem like the type of case the Supreme Court will elect to hear.

Sunday, September 13, 2009
 
One of these days . . .

one of these lawsuits will finally work and hopefully stadiums and owners, especially over-officious guys like this one, will just stop doing stupid things like this.

Three New Jersey high-school students have filed suit in federal court, alleging that they were berated by a team President/Owner and ejected from Newark's Riverfront Stadium for failing to stand during "God Bless America" at a Newark Bears game. According to the lawsuit, the owner went up to the three (one of whose father is a lawyer) and said "Nobody sits during the singing of 'God Bless America' in my stadium," . . . "Now the get the (expletive) out of here." When the students pointed out that they had a right not to stand, he responded that they were underage and he could do whatever he wanted to them. The GM and co-owner met with one kid's father and apologized and offered free tickets, but the owner at the center of the events was not at the meeting and has not apologized.

The story does not indicate the status of Riverfront Stadium, which obviously is key to the First Amendment claim. They also have claims under state public accommodations law; New Jersey actually has a pretty strong one.

Friday, September 11, 2009
 
My American Needle v. NFL Piece in the Yale Law Journal

I'm going to blog more fully on this next week, but I have just posted on SSRN a draft of my forthcoming piece in the Yale Law Journal titled, "American Needle v. NFL: An Opportunity to Reshape Sports Law."

I hope you have a chance to check it out. Have a great weekend.

Thursday, September 10, 2009
 
NBA and Referees' Union Break Off Negotiations

The New York Times reported yesterday that negotiations between the NBA and its Referees' Union have broken off, with the league apparently preparing for a lockout to begin later this month. The NBA's collective bargaining agreement with the union expired on September 1st.

The Times report cites sources who state that the primary disagreement between the league and union relates to the amount by which the NBA is proposing to reduce its referee budget. NBA Commissioner David Stern acknowledged that the league is seeking to cut its referee budget in light of the global recession, but denied that it is attempting to cut referee salaries. ESPN.com had previously reported that the NBA was looking to reduce referee travel costs, pension payouts, and health benefits.

If the two sides are unable to agree on a new CBA, the NBA will likely use referees from the NBA Developmental League as replacements. The NBA previously used replacement referees during the first two months of the 1995-96 season.

Tuesday, September 08, 2009
 
New Sports Law Scholarship

Recently published scholarship includes:
Patrick S. Baldwin, Note, Keeping them down on the farm: the possibility of a class action by former minor league baseball players against Major League Baseball for allowing steroid abuse, 43 GEORGIA LAW REVIEW 1195 (2009)

Chris Deubert & Glenn M. Wong, Understanding the Evolution of Signing Bonuses and Guaranteed Money in the National Football League: Preparing for the 2011 Collective Bargaining Negotiations, 16 UCLA ENTERTAINMENT LAW REVIEW 179 (2009)

Ted Fay & Eli Wolff, Disability in sport in the twenty-first century: creating a new sport opportunity spectrum, 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 231 (2009)

Joshua L. Friedman & Gary C. Norman, The Paralympics: yet another missed opportunity for social integration, 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 345 (2009)

Janet E. Lord & Michael Ashley Stein, Social rights and the relational value of the rights to participate in sport, recreation, and play, 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 249 (2009)

Terri Lakowski, Athletes with disabilities in school sports: a critical assessment of the state of sports opportunities for students with disabilities. 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 283 (2009)

David McArdle, Using the Americans with Disabilities Act to inform “access to sporting venues” under the Disabilities Convention, 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 317 (2009)

Blair H. Moses, Comment, Eligibility of athletes receiving necessary gene therapy: the Oscar Pistorius case as procedural precedent, 49 JURIMETRICS JOURNAL 343 (2009)

Katherine Sulentic, Comment, Running backs, recruiting, and remedies: college football coaches, recruits, and the torts of negligent and fraudulent misrepresentation, 14 ROGER WILLIAMS UNIVERSITY LAW REVIEW 127 (2009)

Patricia J. Zettler, Is it cheating to use Cheetahs?: the implications of technologically innovative prostheses for sports values and rules, 27 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 367 (2009)

Monday, September 07, 2009
 
Catching Up with Links

* I was interviewed on CNN's The Situation Room with Wolf Blitzer to discuss Commonwealth of Kentucky v. David Jason Stinson (the trial of the coach who faces criminal charges for reckless homicide for the death of a former player, Max Gilpin, on the practice field)

* Daniel Fitzgerald of Connecticut Sports Law has a really good post on the legislative contributions made by the late Senator Edward M. Kennedy to sports law. Dan has a similarly good new series on his blog: Connecticut Sports Recruiting, which looks at various legal issues in recruiting.

* Marquette law professor Gordon Hylton, who also teaches at UVA Law, with a provocative and very engaging essay on the Marquette law faculty blog titled, "Is Michael Vick a Civil Rights Martyr?"

* A couple of weeks ago, I blogged about the weight clause in Glen "Big Baby" Davis' new contract with the Boston Celtics. Over on Sports Agent Blog, Dominic Perilli looks at the weight clause in the contract of Cincinnati Bengals' offensive tackle Andre Smith.

* Lots of coverage on the ongoing Phoenix Coyotes bankruptcy saga. Geoff Rapp speaks with the National Post; Mark Conrad speaks with Reuters; Gabe Feldman speaks with the Toronto Mail and Globe; Stephen Ross speaks with the Canadian Press; and I speak with The Fan 590 (Toronto) on a couple of occasions (Sept 3) (Aug 27).

* Pete Toms of the Biz of Baseball has a lengthy and thoughtful piece on new calls for increased revenue sharing in Major League Baseball.

* Marc Isenberg of Money Players raises a number of important criticisms of one-and-done college basketball players (guys who spend a year in college in order to satisfy the 19 plus one eligibility rule for the NBA Draft).

* The National Sports and Entertainment Law Society Blog has a number of good posts up, including on its October 16-17 national event and an interview with Vered Yakovee of the Entertainment and Sports Lawyer.

* The International Working Group on Women and Sport is seeking abstracts for its 2010 World Conference, to be held in October 2010 in Sydney, Australia (thanks to my Vermont Law colleague Stephanie Farrior, who blogs for IntLawGrrls, for the link).

* The New England Patriots just traded veteran All-Pro defensive end Richard Seymour to the Oakland Raiders for the Raiders' first pick in the 2011 NFL Draft. The value of that pick will greatly be impacted by whether the NFL and NFLPA can agree on a new CBA: since there's a chance there will be a work stoppage in 2011, there's a chance there will be no 2011 NFL Draft--the worst case scenario for the Patriots--but there's also a chance there will not only be a draft, but, through a new CBA, one with a team-friendly rookie wage scale, and given the Raiders' recent struggles, the pick could be very high. It's a gamble for the Pats, and maybe it's also a sign of a larger point: given Patriots' owner Bob Kraft's position of influence in the NFL, perhaps the owners believe there will be football in 2011, for otherwise Kraft would have seemed poised to not okay the trade.

Thursday, September 03, 2009
 
More on NHLPA

The news that a union leader is fired by his members a mere two years after assuming his position is unusual. When the firing occurs before he even begins to negotiate the first collective bargaining agreement and is notified at 3:30 AM after a two-hour nighttime meeting , this event becomes shocking or farcical, depending on one's point of view.

It's too early to verify why Paul Kelly was unceremonious fired from his position as NHLPA's executive director. Sources have claimed that it had nothing to do with Kelly's "coziness" with the NHL brass, but rather with evidence allegedly presented by the union's ombudsman that Kelly accessed sealed transcripts of union meeting minutes in violation of NHLPA regulations. One source said the ombudsman claimed that the minutes Kelly wanted access to concerned a meeting of the NHLPA Advisory Board in which a four-member panel of player representatives was appointed to investigate concerns about how the NHLPA office was being run. The presentation was made a meeting from 1:00 - 3:00 AM early Monday morning.

However, was it only this alleged violation that led to the firing? According to the SportsBusiness Journal, the four player panel recommended to their peers that Kelly be dismissed for a variety of reasons, including: concerns about his ability to negotiate a new CBA, doubts about his ability to generate new revenues and the potential resignations of divisional player reps, advisory board members and a large portion of NHLPA staff. The combination of the players’ presentation and the ombudsman's presentation led 22 of 27 players to vote for Kelly’s dismissal.

It can be argued that given past Executive Director Ted Saskin's improper monitoring of member's e-mail, the union was sensitive to such transgressions. Fair enough. But, the action seems rash. Were there any warnings to Kelly about his alleged transgressions? Did he, or his allied (there were a few) have adequate time to prepare a rebuttal? Were there lingering bad feelings between allies of former ombudsman Eric Lindros (who resigned from the position) and Kelly? And, if the union was complaining about Kelly's lack of achievements, was it way too early to make such a conclusion?

It's difficult to understand why Kelly should be blamed for failure to maximum revenue generation and the ability to negotiate a new CBA. He did not get much of a chance to do either. It's not Kelly's fault that the players agreed to a wage cut and payment escrows in their present CBA. He had no part in that agreement. The fact is that NHL's problems with television revenues and the viability of certain franchises (Phoenix, anyone?) can't be blamed on him. Look to NHL leadership, and the union's past leadership for that.

It's still early to assess the damages, but in any event, good luck to the person who will take this job.

Tuesday, September 01, 2009
 
Submissions for Harvard Journal of Sports and Entertainment Law

Earlier this month, I blogged on the Harvard Journal of Sports and Entertainment Law, which is a brand new law journal published by Harvard Law School. The Journal's Editor-in-Chief, Aswhin Krishnan, has let me know that the Journal's website is up. He and Josh Podoll (Submissions Editor), also have some additional info on submissions:

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On behalf of the editorial board, it is my distinct pleasure to announce the formation of the Harvard Journal of Sports and Entertainment Law (JSEL). JSEL will provide the academic community, the sports and entertainment industries, and the broader legal profession with scholarly analysis and research related to the legal aspects of the sports and entertainment communities.

JSEL, published under the auspices of Harvard Law School, is accepting articles, essays, book reviews, notes, and comments regarding legal and/or public policy issues from academics and legal practitioners for its upcoming inaugural issue in Spring 2010. JSEL is one of the few journals in the United States that focuses exclusively on legal topics related to sports and entertainment.

As you are probably aware, legal topics that affect sports and entertainment include antitrust law, civil procedure, constitutional law, contract law, corporate law, copyright law, labor law, and real estate law. In addition, there are many other legal topics that have an impact on the sports and entertainment industries, or otherwise have an application to sports and entertainment.

Submissions are being accepted on a rolling basis. To be considered for our first issue, due to be published in Spring 2010, please send completed submissions no later than November 15, 2009. An indication of your interest before that date would also be greatly appreciated.

All submissions must be sent to Josh Podoll, Submissions Editor, as an attached Microsoft Word document via email to jselsubmissions@gmail.com. Please visit our website for further details regarding the submissions process at www.HarvardJSEL.com. Also, please feel free to contact Josh regarding any questions you may have concerning citation format, topic, or other issues involving the submissions process. If you know of other scholars, practitioners, or students whose work seems appropriate for our journal, please encourage them to submit their work to JSEL.

We look forward to receiving your submissions!

Sincerely,

Ashwin Krishnan
Editor in Chief

Josh Podoll
Submissions Editor
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The NHLPA Fires Its Executive Director

The National Hockey League Players' Association fired its executive director, Paul Kelly, on Monday. Kelly had served in the position for 22 months. Prior to joining the union, Kelly was a founding member and trial lawyer at the Boston law firm Kelly, Libby and Hoopes.

The move leaves the NHLPA searching for its fourth director in four years. With the decision, the NHLPA also joins the MLBPA and NFLPA as sports unions which will be transitioning to new leadership in 2009.

With the NHL's current collective bargaining agreement set to expire after the 2010-11 season, Kelly's ultimate replacement will have little time to get settled.

 
Jason Chung on Situation of Teenage Basketball Players Who Turn Pro

Over on The Situationist, Jason Chung has a thoughtful and provocative article on why the typical life circumstances of U.S. players who would like to seek the NBA right out of high school, and who are capable of being drafted right out of high school, are often missed by advocates of the NBA's age limit. He compares those players with reactions to European players, some of whom turn pro as young as 14 years old (e.g., Ricky Rubio turned pro at 14). Here is an excerpt from Jason's piece:

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Given that all these young athletes made seemingly informed, mature personal decisions, why is that Brandon Jennings [photographed above while living in Italy] has been ostracized by some quarters while the others have largely escaped such scrutiny? The answer may lie in the fact that our moral reasoning does not rest in an evidentiary basis. As Jonathan Haidt notes, “Most people gave no real evidence for their positions, and most made no effort to look for evidence opposing their initial positions.” As long as their point of view “makes sense” there is little reason to question their knee-jerk reaction.

Jennings’ position – that of rejecting a college athletic scholarship – unquestionably evokes a stronger negative reaction in the American psyche. In America, those with higher education are often better employed, possess higher earning power, and are considered a better fit for the modern economy than those without such an advantage. It is drilled into the minds of most Americans that higher education is the way to go in order to attain professional and personal success. In addition, for student-athletes, playing in the NCAA is viewed as the traditional way in which to interest NBA teams and to raise your draft profile. Jennings bucked conventional wisdom and the resulting immediate reaction on the part of some of the public and NBA analysts like Jalen Rose was to question the motivations, financial and otherwise, behind this decision.

This initial reaction is simply not supported by facts. . . .

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To read the rest, click here.