Sports Law Blog
All things legal relating
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Thursday, January 28, 2010
 
Cause and Effect Sports Law: Who Dat Style


As a trial lawyer who has seen any number of moves/reasons for a continuance of a trial, fellow members (and future members) of the trial bar take note: sporting events that enjoy the support of a community in which that team or school resides may provide a "basis" for a continuance.
HT: The Volokh Conspiracy.

Wednesday, January 27, 2010
 
3rd Annual Tulane Law School National Baseball Arbitration Competition

The 3rd Annual Tulane Law School National Baseball Arbitration Competition took place this past weekend at Tulane Law School. The event was a huge success, with 38 teams from schools across the country participating in a simulated baseball salary arbitration competition. Special thanks to Professor Roger Abrams and Jon Fetterolf for serving as the judges for the final rounds of the competition on Sunday and for putting on an entertaining and educational presentation for all of the competitors on Saturday afternoon. Thanks also to Armando Velasco, Jeffrey Sundram, Blake Simon, Chris Weema, Melissa Desormeaux, Danielle Moore and the Tulane Sports Law Society for hosting a great event.

All of the judges raved about the quality of the presentations throughout the competition, and we are proud to announce the winning teams:

Semi-Finalists: Suffolk Law School; Ave Maria Law School

Runner-Up: Notre Dame Law School

Winner: Denver Law School


And, to top it off, the Saints beat the Vikings on Sunday night. All in all, a good weekend in New Orleans…

Tuesday, January 26, 2010
 
West Legal Education CLE on "Guns Up! Legal Issues Surrounding the Firing of Texas Tech Head Football Coach Mike Leach"

Rick and I are hosting an on-line 1-credit continuing legal education tomorrow (Wednesday January 27) from 12 p.m. to 1 p.m. Eastern Time with West Legal Center to discuss the assorted legal implications of Mike Leach's firing. A number of us on Sports Law Blog have discussed the Mike Leach firing. Here is West's description of the CLE:
On December 28, 2009, Leach was suspended indefinitely by Texas Tech pending investigation of alleged inappropriate treatment of a player. School officials gave Leach an ultimatum--apologize to James in writing by December 28 or Leach would be suspended. Leach refused to do so. Leach immediately sought an injunction that would allow him to coach in the 2010 Alamo Bowl. However, on December 30, Texas Tech fired Leach, calling his refusal to apologize to James "a defiant act of insubordination." On January 8, Leach formally filed suit against Texas Tech for wrongful termination. He claimed that school officials not only fired him without cause, but issued defamatory statements in a willful attempt to keep him from being hired elsewhere.

Rick Karcher and Michael McCann will take you into the world of high profile employment and sports contracts. They will provide an update on the controversy and offer analysis on the upcoming legal process.

For more on Wednesday's CLE, click here. It should be a good event and we hope to keep it interesting and informative.

 
Mike Leach, football coaching, and law school

Geoff already commented on Mike Leach's new article in Texas Tech Law Review, talking about how law school prepared him to be a football coach. Geoff noted that Leach reports as an actual in-class event a version of a scene from The Paper Chase ("Go call your mother . . ."), so I wonder about that part of the paper. I also wonder about Leach's description of the Socratic-method-on-steroids class (civ pro, teaching Pennoyer); I went to law school for 3 years and have taught for 9 and have never actually seen anything remotely approaching what he described, either as a student or in observing my colleagues.

Paul Caron offers his comments, along with a link to Leach's paper. Caron highlights Leach's direct comparisons between coaching and law school, including his suggestion of a certain rugged individualism to law school and the "certain amount of treachery and adaptation it takes to be successful" in both.

I would echo Leach's wind-up to any students: A law degree is a degree in problem-solving, so go find problems that you are passionate about and help solve them. To me, that is the goal for lawyers.

Monday, January 25, 2010
 
New SI.com Column on Impact of Javaris Crittenton's Plea Deal on NBA Career of Gilbert Arenas

I have a new SI.com column on the impact of Javaris Crittenton's plea deal on Gilbert Arenas. Here's an excerpt:

* * *

Crittenton will also meet with NBA commissioner David Stern, who has suspended Arenas indefinitely. Crittenton's comments during the meeting could damage Arenas' chances for reinstatement if he portrays Arenas as a dangerous bully or aggressor. The Wizards may also find that Crittenton's comments lend justification for a termination of Arenas' contract under Clause 16 of the Uniform Player Contract, a topic I detailed in a previous column.
* * *
To read the rest, click here. For an excellent commentary by Ohio State law professor Douglas Berman on this topic, see his Sentencing Law and Policy piece "Shouldn't Javaris Crittenton be a Second Amendment hero rather than a sentenced zero?"

 
What Mike Leach Learned (Oops) in Law School: Is the Socratic Method to Blame for his Treatment of Players?


The Texas Tech Law Review has published an article by now former coach Mike Leach, A Legal Education Applied to Coaching College Football, 42 TEXAS TECH LAW REVIEW 77 (2009). Read in light of how Leach's season ended, as discussed by Mike here, and Howard here and here, the article is a very interesting glance at Leach's coaching philosophy and how his law school experience at Pepperdine may have shaped his attitude towards players.

Leach writes,
Both law school and college football view it as important to harden and battle test your charges the best you can before you turn them out into the real world.
He then recalls a discussion from his first year contracts class:
In my class, the unlucky student called upon to recite Pennoyer [v. Neff] was brutalized from beginning to end. When the student finished, the professor said in a rather sinister tone, “Sit down, Mr. Smith. Call your parents and tell them that there is very little chance of you ever successfully becoming an attorney. However, I understand there are openings for assistant managers at McDonald's.” This was said in front of approximately ninety people. . . . Certain individuals could not deal with having to stand up in front of people to recite a case, not to mention handle the combative nature of the comments and questions from the professor and fellow students.


UPDATE (1/26/2010, 8:24 AM): TaxProf has posted comments and a longer excerpt here.

 
DePaul University College of Law Sports Law Sympsium on "Sports and the Great Recession"

Geoff and I look forward to joining others in what should be a great sports law symposium at DePaul University College of Law on Friday, February 12. The title of the symposium is "Sports and the Great Recession." Here are the details:

The 2010 DePaul Sports Law Symposium will explore how the recent economic downturn has affected sports leagues and teams, and how it will affect them going forward.

DATE: Friday, February 12, 2010
TIME: All Day, starting with check-in at 8-9 a.m.
LOCATION: University Center, 525 South State Street, Chicago, IL 60605.

Sports and the Great Recession


9:00 A.M. – 10:20 A.M. – LEAGUES AND VENUES PANEL

Moderator:
Michael Jacobs, Distinguished Research Professor, DePaul University College of Law

Panelists:
Natara Holloway – Director of Corporate Development, National Football League
Jon LeCrone - Commissioner, Horizon League
Brad Traviolia – Deputy Commissioner, CFO and COO, Big Ten Conference

10:30 A.M. – 12:00 P.M. – TEAMS PANEL

Moderator:
Howard Rubin, Associate Professor/Associate Dean, DePaul University College of Law

Panelists:
Gabrielle Dow – Vice President of Marketing, Baltimore Ravens
Martin Greenberg – Member, Greenberg & Hoeschen, LLC
Mike Lufrano – Senior V.P., Community Affairs/General Counsel, Chicago Cubs
John Mack – Senior Associate Athletic Director, Northwestern University
Marti Wronski – Vice President, General Counsel, Milwaukee Brewers

1:00 – 2:30 P.M. – ACADEMIC PANEL

Moderator:
Bill Savage, Senior Lecturer, Northwestern University

Panelists:
Michael McCann - Associate Professor, Vermont Law School/Legal Analyst, Sports Illustrated
Matthew Parlow – Associate Professor, Marquette University Law School
Geoffrey Rapp – Associate Professor, University of Toledo Law School

To register please see the Registration Form.

Sunday, January 24, 2010
 
Is Bowl Swag Appropriate for Schools in Final BCS Standings?

David Grant of the Christian Science Monitor recently wondered why NCAA student-athletes can receive gifts worth up to $500 if they are able to play in Bowl Games, but during the season those same players are much more restricted in what they can receive because of their student-athlete status.

Here are some excerpts from David's story:

* * *

During the majority of their college football careers, players at the football powerhouses populating the final BCS standings have to eschew free stuff.

They do so because getting untoward benefits as student athletes can jeopardize their future eligibility to run, block, and tackle and, by extension, their opportunity to reap a bigger future payday in the NFL. (And forget sponsorships. College athletes lose their ability to take the field by entering into corporate pacts.)

But during bowl season, game organizers shower these same athletes with up to $500 in free merchandise that athletes then wear and use on campuses across the country, giving brand names a boost in the process. What happens at a bowl gift party that makes it any different from the other 364 days a year?

"When players come down to these bowl games, you don’t want to just lock ‘em in the hotel room," says Geoffrey Rapp, a law professor at the University of Toledo who contributes to the Sports Law blog. "Part of the fun is going some place warmer, getting to to go Disney land, and if there was a strict ban on any contributions or any value given to players, you’d have to be very vigilant on your players. But that said, iPods and PlayStation 3's and other electronics seems to be a bit inconsistent with the spirit of the NCAA rules."

* * *

But the financial-aid restriction is a blanket one, whereas the prohibition on free gets lifted for a glimmering moment during bowl season.

"On one level, it’s good that players are getting something for all they are contributing to the school," says Michael McCann, a law professor at Vermont Law School who studies sports law. "But it invites the question of why this is an exception and where should you draw the line. Should there even be a line?"

* * *

To read the rest, click here.

Friday, January 22, 2010
 
The worst sports league idea ever?

The Wall Street Journal Law Blog asks, "Would an All-White Professional Basketball League be Legal?" Apparently, someone wants to start a professional basketball league limited to "players that are natural born United States citizens with both parents of Caucasian race . . . ."

Yikes!

Sports agent Jason Wolf, in a post linked to by the WSJ Law blog, suggests the legality of the league's structure is questionable. Also linked is a law.com blog post by Eric Lipman, which raises the question of whether this is nothing more than a hoax (NBC thinks not).

Bearing in mind the possibility that this is nothing more than a joke, I'd say Title VII, not to mention various state anti-discrimination laws and a disastrously immoral business model, will likely make this league a no-go.

Thursday, January 21, 2010
 
University of Miami Symposium

The Entertainment and Sports Law Society at the University of Miami School of Law is hosting its 13th Annual Symposium on Friday, February 5. The registration form, containing a list of the speakers, may be accessed here. It looks to be an outstanding event!

Wednesday, January 20, 2010
 
FCC Ends Cable's 'Terrestrial Loophole' Used to Prevent Sports Programming Blockage

The Federal Communications Commission took a major step to curb the power of cable operators to block sports programming access to rival telephone and satellite operators, a practice that has long irritated sports viewers. This policy, known as the "terrestrial loophole" was permitted until this order. The FCC took the action, according to the Wall Street Journal, after firms like Verizon, Direct TV and Dish Network, complained that the cable operators improperly blocked their broadcasts of local teams they either own outright or have rights to broadcast) which the Commission, in its 4-1 decision, concluded violated anti-discrimination provisions of section 628 of the Communications Act. Section 628 requires cable operators to act in the public interest and engage in "unfair acts" against satellite operators, including discrimination in the prices, terms and sale of cable programming to those operators.

The FCC's order, all 87 pages in length, rejects the claims of exclusivity by cable operators of certain programming that gives them an competitive advantage over their rivals. Challenges are likely on both administrative law and constitutional grounds. In its report, the FCC, anticipating such litigation, took note that the restrictions are content-neutral and subject to intermediate scrutiny under Time-Warner v. FCC, 93 F. 3f 957 (D.C. Cir. 1996). Although I have only skimmed the order, it has all the makings of a repeat of the litigation over the must-carry rules that made two Supreme Court appearances in the 1990s. Stay tuned.

Tuesday, January 19, 2010
 
Lincecum Asks for $13,000,000

Today was the exchange number day for salary arbitration-eligible players and their teams. As expected, Tim Lincecum asked for a record amount ($13,000,000). The Giants countered with $8,000,000 leaving a midpoint of $10,500,000. As is always the case in the final hours and minutes before the exchange deadline, a significant number of deals were completed. Last Friday, 128 players filed for arbitration. That is the largest number in more than one decade. When the dust settled today, a total of 46 exchanged numbers. I was a bit surprised that so many deals got completed because through Monday evening I had seen modest activity. I will be providing some more information after I have tracked down all the pre-exchange deals.

Monday, January 18, 2010
 
U.S. Secretary of Education Arne Duncan Speaks out Against NBA Age Eligibility Rule

ESPN's Henry Abbott has a great interview with U.S. Secretary of Education Arne Duncan, who is a critic of the NBA's eligibility restriction, which requires that a player be 19 years old plus one year removed from high school in order to be eligible for the NBA Draft (the rule was negotiated in 2005; previously, players could join the NBA right after finishing high school). The NBA and the Players' Association will be negotiating a new CBA in the near future and the age limit will likely be a source of tension between the two bargaining units.

Here are some excerpts from Abbott's interview with Secretary Duncan:

* * *

Henry Abbott: The negotiations for the NBA's next collective bargaining agreement will be mainly about money. (Owners, who have been dipping into their own pockets to keep the fires burning through a frosty economy, want more of it.)

But perhaps the hottest issue will be about a different set of numbers: The age of NBA players. Kobe Bryant, Kevin Garnett, LeBron James, Dwight Howard and the like were once drafted straight out of high school. Four-and-a-half years ago, the NBA declared players had to be one year out of high school before going pro. The result has been a rash of "one-and-done" NCAA players. The NBA has expressed an interest in extending the ban for an additional year, which will be an issue in upcoming negotiations with the player's union.

Meanwhile, a growing number of people are eager for the age rule to be eliminated.

On Thursday, the latter group appeared to gain an influential ally in U.S. Secretary of Education Arne Duncan. Once a star player at Harvard -- one of his coaches there was current Celtic assistant coach Tom Thibodeau -- and a former professional player in the Australian league, Duncan is passionate about basketball. Speaking to university and NCAA officials in Atlanta, the former chancellor of Chicago's public schools said that the higher education of some basketball players was a "farce."

* * *
Henry Abbott: But you would let players go straight to the NBA from high school if they were LeBronesque.

Secretary Duncan: Yes. That tiny tiny percentage.

Henry Abbott: Who would determine if they're in that category or not?

Secretary Duncan: I think the market would determine that. If they want to do that, great. If it works out, great. But 99.99% of players don't fall in that category. I'm interested in better serving those guys. I want to give them the kind of quality experience, in the community, in the college, on the court that's going to really help prepare them for whatever comes next, whether that's the pros or getting a good job. Being part of the rich cultural and social life of a university has incalculable benefits.

If folks are doing the wrong thing, you stain the university, you stain the programs, you stain the NCAA.

This has got to be about values. The vast majority of programs, I think, are instilling the right values. I am forever personally indebted for my experience to my coaches and my athletic director. Every day I think about the lessons that I learned playing. I want that to be the norm. I want every kid to have the kinds of opportunities that I was lucky enough to have.

* * *
To read the rest, click here. To read an op-ed by Secretary Duncan on The Hufington Post (hat tip to Ryan Rodenberg) click here. For a similarly provocative interview between Abbott and Sonny Vaccaro about the NBA's eligibility rule and Brandon Jennings, see Part I, Part II, and Part III.

Sunday, January 17, 2010
 
UF Sports Law Symposium to Examine Legal Playbook as Collective Bargaining Agreements expire

Several of us will be speaking at the University of Florida Levin College of Law on January 29 at the 2010 UF Sports Law Symposium. The general topic is what to expect in the collective bargaining of new agreements in the NBA, NFL, and Major League Baseball. It should be a great event (and for attorneys near Gainesville, there will be CLE credit). Here's a press release:


GAINESVILLE, Fla. — On Jan. 29 sports agents, litigators, salary cap analyst and sports law students will huddle up at the University of Florida Levin College of Law to get ready for a whole new ball game.

In the next two years, time will expire on the Collective Bargaining Agreements affecting the negotiation of salaries and playing conditions for professional athletes. The 2010 UF Sports Law Symposium, “Discussion: Bargaining Collectively,” presented by UF’s Entertainment & Sports Law Society, will bring together sports law experts and representatives from the National Football League, National Basketball Association and Major League Baseball to discuss why CBA’s exist, how they help players and owners, and to identify contract terms that will likely be argued before the agreement expires. The free event, set to kick off at 11 a.m. at UF Law’s Chesterfield Smith Ceremonial Classroom 180, will offer CLE credits.

“The 2010 UF Sports Law Symposium will be an excellent forum for students, athletes, professors and others interested in sports law to network and learn from the brightest minds in sports law,” said Darren Heitner, president of UF Entertainment & Sports Law Society.

The keynote speaker for this year’s symposium will be Harvey W. Schiller, Ph.D., who has served as president of the International Baseball Federation since 2007 and is also chairman of the board and CEO of GlobalOptions Group, a multidisciplinary international risk management and business solutions company located in New York. Prior to joining GlobalOptions in 1994, Schiller held posts at Turner Broadcasting System, served as the executive director/secretary general of the United States Olympic Committee and was the commissioner of the Southeastern Conference.

“It’s an honor to be able to address future sports-business leaders in Gainesville,” Schiller said. “We live in very challenging times where the changes in the way we conduct business occurs in minutes. Adapting and understanding those changes is critical to our success as professionals. It is my hope that forums like the one being held at the University of Florida, provide the framework for the growth of the industry and to inspire further discussion and opportunity.”

Closing the day-long symposium will be Donald Fehr who served as the general counsel of the Major League Baseball Players Association beginning in 1977, and as its executive director for 26 years from December, 1983. In his role as executive director, Fehr served as the players’ chief negotiator in collective bargaining with major league owners and was responsible for contract administration, grievance arbitration and pension and health care matters. Fehr will address the role of collective bargaining in professional team sports, and discuss his experiences in his role with the players association.

Interesting things are on the horizon for the four major professional team sports in North America,” Don Fehr said.

To view the symposium agenda, speaker profiles and designated CLE credits, visit http://www.ufsportslaw.com/symposium.html.

For more information regarding the symposium, contact Darren Heitner at heitner@gmail.com


Saturday, January 16, 2010
 
New SI.com Column on Carlos Beltran and his Dispute with the Mets over his Knee Surgery

I have a new SI.com column on Carlos Beltran and whether he needed permission for the Mets for knee surgery and what the Mets can do in response. Here's an excerpt:

* * *

Interestingly, and understandably, the collective bargaining agreement does not expressly resolve how teams and players should reconcile differences in opinions over the appropriate course of a player's treatment and who should perform a particular surgery. Instead, the agreement essentially encourages players and teams to work out their differences in good faith and with an appreciation for reasonableness, taking into consideration the desires of both parties.

One recommendation, as provided in an attachment to the agreement, is that players and teams in disagreement turn to a third physician expert. The attachment also states, clearly, that teams should not force a player to have surgery performed by a team doctor, but should instead designate another physician to perform the surgery.

Given the contradictions in accounts between Beltran and the Mets, it is unclear whether either side satisfied their duties. Still, we know that the Mets have known from some time about Beltran's knee trouble and about his physician-patient relationship with Steadman. Beltran, in fact, was evaluated by Steadman last June. Also, following the completion of the 2009 season, Beltran had three MRIs on his right knee, with the third MRI, conducted on Dec. 10, revealing a worsening osteoarthritis in his knee. Presumably Beltran and the Mets, including the team's own doctors, have been in communication about how to treat the condition. It thus seems unlikely that the Mets were completely caught off-guard that Beltran would have knee surgery, or that the surgery would be performed by Steadman.

On the other hand, if the respective doctors for the Mets and Beltran disagreed as to Beltran's treatment, a third physician expert may have been appropriate. It would be notable if the Mets requested that Beltran see a third physician or if they designated another physician to perform the knee surgery, and if Beltran declined to meet with a third physician or the physician designated to perform the surgery.


Hope you get the chance to read the rest of the column.

Friday, January 15, 2010
 
New SI.com Column and Washington Post Q/A on Gilbert Arenas's plea deal and potential sentence

I have a new SI.com column on the guilty plea by Gilbert Arenas. Here's an excerpt:

* * *

Judge Morin seems unlikely to impose a sentence in excess of the prosecutors' recommendation. While Arenas pleaded no contest in 2003 to a misdemeanor charge in California for illegally possessing a concealed weapon, he otherwise lacks the kinds of aggravating factors that would warrant a lengthy sentence. But there is no guarantee that he will avoid one. Recall what happened to Michael Vick: After he pleaded guilty to dogfighting charges, prosecutors recommended that he be sentenced to 12-to-18 months in prison. Judge Henry Hudson disagreed, instead sentencing Vick to 23 months. Therein lies the risk of entering into a plea deal: a defendant and prosecutors can "make a deal," but the judge decides whether to accept it.

* * *
Hope you have a chance to read the rest of the column. Also, I did a Q/A for the Washington Post on Arenas. Here's an exerpt:

Clarksburg, Md.: When do you think David Stern will decide what the "indefinite suspension" means? Meaning do you have any idea when he might change it to a certain amount of time and if so, how long? I know you can only speculate.

Michael McCann: I think he'll wait until the sentencing is determined (Arenas is scheduled to be sentenced on March 26). I think the odds are very much against Arenas returning this season, even if the sentence he receives is extremely light. To me, the question is whether the suspension will continue into the 2010-11 season. Stern will likely provide Arenas an opportunity to meet with him in private (similar to that provided by NFL commissioner Roger Godell to Michael Vick) and that meeting would have a major impact on when Arenas returns.

To read the rest, click here. Also on a somewhat related I issue I did an interview with Scott Drake of the Legal Broadcast Network on Jason Williams pleading guilty this week for a fatal shooting that happened back in 2002.



 
New SI.com Column on whether Barry Bonds, Roger Clemens, or Rafael Palmeiro might confess to steriod use after Mark McGwire's admission

I have a new SI.com column titled "Don't expect Bonds, Clemens to offer their own confessions". Here's an excerpt:

* * *

Take Bonds. He remains a defendant in a criminal prosecution on perjury and obstruction of justice charges, specifically concerning whether he knowingly lied while testifying before a grand jury in 2003 that he did not use steroids. The trial, U.S. v. Bonds, has been delayed while the U.S. Court of Appeals for the Ninth Circuit considers an appeal by prosecutors that U.S. District Judge Susan Illston mistakenly barred BALCO steroids-test and other implicating evidence as inadmissible hearsay (i.e., unreliable out-of-court statements made by persons not in the trial). The odds are heavily in favor of the Ninth Circuit sustaining Judge Illston's ruling, meaning prosecutors will likely be left with limited evidence to secure a conviction.

If, however, Bonds were to admit to having knowingly used steroids, and to doing so prior to when he testified before the grand jury, he would also admit to having knowingly lied to that grand jury. Given the favorable situation of his trial, Bonds seems unlikely to admit to having committed a crime for which he probably would not otherwise be convicted and which carries with it a possible prison sentence. Therefore, whatever public relations benefit Bonds might obtain by "coming clean" would be outweighed by the legal implications of such an admission.

* * *
To read the rest of the column, click here.

Thursday, January 14, 2010
 
New SI.com Column on Gilbert Arenas being charged with a felony and impact of a potential plea deal on his NBA career

I have a new SI.com column on Gilbert Arenas being charged with a felony and the potential impact of a plea deal on his NBA career. Here's an excerpt:

* * *

The Wizards would not have history on their side if they sought to use Clause 16 against Arenas, as it has seldom been employed to void NBA contracts. One unsuccessful attempt was in 1997, when the Golden State Warriors terminated the contract of Latrell Sprewell after he choked his coach, P.J. Carlesimo. On behalf of Sprewell, and consistent with the collective bargaining agreement, the players association filed a grievance. The grievance was heard by an independent arbitrator, Fordham University School of Law dean John Feerick, who reinstated Sprewell's contract on grounds that the Warriors lacked just cause in utilizing Clause 16. Feerick's decision suggests that the Wizards would have the odds stacked against them: If chocking a coach can't get a contract voided under Clause 16, would possessing unloaded guns do so?

Another attempt by an NBA team to void a contract occurred in 2004, when the Boston Celtics tried to terminate Vin Baker's contract. They did so after Baker, who battled problems with alcohol, failed to keep himself in adequate condition. The Celtics, however, never explicitly signaled their grounds for attempting to void Baker's contract, though Clause 16, which also requires that a player keep himself in first class physical condition, was a likely source. The Celtics-Baker situation was different from the Arenas-Wizards situation in a number of ways, since it concerned substance abuse and the Celtics attempted to void Baker's contract only after repeatedly disciplining Baker. Ultimately the Celtics and Bakers worked out an agreement whereby Baker reportedly received $16 million of the remaining $35 million on his contract.

It's possible that the Wizards could work out a similar buyout with Arenas, though expect the players' association to strongly oppose Arenas agreeing to any buyout. The players' association would be worried that teams would attempt to force buyouts with other players if the Wizards succeeded in doing so with Arenas.

* * *


 
Procedural Flaws in High School Transfer Decisions


I was forwarded a wonderful September, 2009 decision by an Indiana Appeals Court this week, Watson v. Indiana High School Athletic Association. Valerie Watson, a single mother supporting three children and one grandchild, decided to move from Elkhart to South Bend, IN, after facing salary reductions and foreclosure on her home. The RV industry -- a major employer in Elkhart -- is in shambles, and Ms. Watson was unable to find a home to rent and wanted the assistance of relatives in South Bend in caring for her children. Her daughter, six-foot-two-inch tall Jasmine sought to play basketball at her new school in South Bend, but the IHSAA found the transfer occured "primarily for athletic reasons" and declared her ineligible.

The IHSAA's evidence on this point was a bit flimsy, consisting of what the court viewed as unsubstantiated double hearsay:
For example, the IHSAA relied on Coach Fielstra‘s statements that another basketball coach from a different school told Fielstra that one of Jasmine‘s grandmothers told him (the other coach) that the family was looking for another school for Jasmine because she was not getting the ball enough at Elkhart Memorial.
Watson sought and successfully obtained a preliminary injunction allowing her to play basketball at her new school, with the court finding the IHSAA to have acted in an arbitrary and capricious manner. The Appellate court, in the linked decision, affirmed that injunction. The court includes an interesting discussion of the mootness issue present in so many eligibility-centered lawsuits. By the time it rendered its decision this fall, Jasmine had graduated from high school (and has begun what looks to be a promising career at the University of Massachusetts). The court noted that the IHSAA had filed a counter-claim for attorney fees against Watson, so success for the IHSAA on appeal could have significant monetary implications should the Association have the gall to try to collect its fees from a cash-strapped single mother. The court also opined that transfers for financial pressures were likely to be a recurring problem, and that high school athletics are a matter of "great public interest."

Although many high school athletic associations are concerned about athlete transfers, in this case the association seems to have ignored the family's circumstances and proceeded in a rather harsh fashion.

Wednesday, January 13, 2010
 
Review of the American Needle Oral Argument

Lyle Denniston over at the fantastic SCOTUSblog has posted a recap of this morning's oral argument in American Needle v. NFL. By this account, it sounds like the Court was generally skeptical of the NFL's case.

A transcript of the oral argument should be available later this afternoon.

Update (12:40pm): The Associated Press has also posted a short recap of the argument, agreeing that the Court generally seemed unwilling to extend the NFL single entity status.

Update (3:15pm): Two more recaps of this morning's oral argument are now available. Like the earlier recaps, Reuters reports that the Court appeared unlikely to rule in favor of the NFL. However, Zach Lowe at AmLawDaily suggests that the Court may be inclined to adopt something along the lines of the case-by-case approach advocated by the Solicitor General.

Update (4:00pm): The transcript from this morning's oral argument is now available.

 
The Baseball Research Journal issue on Baseball and the Law

While the American Needle v. NFL oral argument will garner most of the attention today, I thought that some might be interested to know that the Society for American Baseball Research has released the latest issue of its Baseball Research Journal containing a special section discussing baseball and the law. According to the Journal's website, the highlights of the issue include:
  • Samuel A. Alito, reviewing the Federal League case that was decided by the Supreme Court in 1922, concludes that the unanimous opinion written by Oliver Wendell Holmes, though often criticized and even derided, was closely argued and cogent.
  • Roger I. Abrams analyzes the decision by arbitrator Peter Seitz in the groundbreaking Messersmith arbitration case of 1975. Mark Armour looks at the effort of two American League umpires to unionize in the 1960s.
  • The late Gene Carney, in a masterful narration of events as revealed through documents recently purchased by the Chicago History Museum, takes his readers into the world of the private detectives hired by White Sox owner Charles Comiskey in the wake of the Black Sox scandal of 1919.
  • Ross Davies contributes his own detective work, as it were, that leads to a surprising conclusion about the composition of Harry Blackmun’s opinion in the Flood case of 1972. In his portrait of William R. Day, arguably the most knowledgeable fan in the history of Supreme Court justices, Davies shows us baseball notes that justices exchanged as they sat hearing cases on the bench. While researching the baseball background of Supreme Court justices, Davies discovers that the story that William Howard Taft played baseball at Yale is, in fact, groundless.
For those interested in acquiring a copy of the journal, you can order it here.

 
American Needle v. NFL: Even More Coverage

Later today, the Supreme Court will hear oral arguments in American Needle v. NFL. We have covered the case in great detail on Sports Law Blog. If you're interested in more analysis, here are some other links:

1) I have a new Sports Illustrated column on American Needle. It is titled "Why American Needle v. NFL is Most Important Case in Sports History"

2) Ashby Jones of the Wall Street Journal has a thorough analysis of the case.

3) Marc Edelman examines the case on Sports Judge.

4) On the NFLPA's website--NFL Players.com--David Elfin considers the case.

5) The New York Times' Editorial Board opposes the NFL's position in the case.

6) NPR's Nina Totenberg examines the case.

7) Tim Breen of the Washington Times analyzes the case.

8) Sports journalist Tim Lemke also analyzes the case.

9) The Marketplace Program from American Public Media has a feature on the case.

Tuesday, January 12, 2010
 
New SI.com Column on Mark McGwire and Legal Fallout of His Admission

I have a new SI.com column that looks at the fallout of Mark McGwire admitting that he used steroids. Here's an excerpt.

* * *

3) What would have happened had McGwire talked about the past?

If McGwire had denied using steroids -- that is, lie -- he would have set himself up for perjury charges. But keep in mind, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. That means that McGwire or any other witness from the March 17, 2005 hearing would need to face perjury charges by March 17, 2010. It is unclear whether the government would have had sufficient physical evidence to investigate and seek a grand jury indictment against McGwire; there does not appear to be a Brian McNamee-like figure from McGwire's past.

Alternatively, if McGwire had admitted that he used steroids -- that is, told the truth -- he would have been subject to investigation by federal authorities as to which steroids he purchased, when and how he purchased them, from whom he purchased them and similarly probing questions. In theory, McGwire could have faced criminal charges under the Anabolic Steroid Control Act. While some might point out that no player who admitted to using steroids has been prosecuted for purchasing or using steroids, keep in mind that those players -- including Alex Rodriguez and Andy Pettitte -- had not yet admitted to using steroids in 2005; McGwire and his attorneys did not have the benefit of observing those players' legal experiences.

McGwire's admissions of steroids and subsequent cooperation with federal authorities could have impacted other players and the steroids scandal in general. For instance, it may have aided federal investigations into other players alleged to have used steroids, including Barry Bonds and Roger Clemens. It may have also helped the Mitchell Commission in its internal investigation. On the other hand, by admitting that he used steroids and subjecting himself to potential prosecution absent cooperation with authorities, McGwire might have put himself in the uncomfortable and unenviable position of implicating friends and former teammates.


Hope you get to read the rest of the column. Over on True Slant, Jon Pessah has a good take on the McGwire matter. Also, here's an interview I did with Scott Drake of the Legal Broadcast Network on McGwire.


Monday, January 11, 2010
 
Even more on American Needle

For even more on American Needle, I have a column up on the Huffington Post discussing some of the common misconceptions surrounding the case.

Here's an excerpt:

This case is a lottery ticket for the NFL. If they win, it could be a significant victory....If the NFL loses, nothing really changes. The issue before the Supreme Court is not whether the NFL's exclusive licensing arrangement is legal under the antitrust laws. The issue is whether the licensing arrangement should even be subject to scrutiny under the antitrust laws. If the NFL wins, they escape Section 1 scrutiny. If the NFL loses, their arrangement will then be analyzed under the rule of reason, where a court will weigh the pro-competitive benefits of the agreement versus its anticompetitive effects.

There is no reason to believe that the Supreme Court's rejection of the single entity argument makes it any more (or less) likely that American Needle would prevail in the underlying antitrust case (or that a suit against the NFL's exclusive deal with EA would be successful). Rather, it only subjects the NFL to the same antitrust scrutiny they have been subjected to for the last 50 years. American Needle could win the underlying case, but only if it could prove that the anticompetitive effects of the NFL's exclusive apparel licensing deal outweighed its pro-competitive benefits.

 
More American Needle v. NFL

With the American Needle v. NFL Supreme Court hearing just a couple of days away, there are some good commentaries to read including:

1) Bill King of the Sports Business Journal has a thoughtful and extensive piece titled, "Supreme Court Weighs a Game Changer" He interviews a number of folks for the piece. Here are my comments:
Others aren’t as sure that the four decidedly conservative judges are certain to side with the NFL. Michael McCann, a Vermont law School sports law professor who recently analyzed the case in the Yale Law Journal, allows that a conservative viewpoint might lead those justices to favor competition between businesses and discourage collaboration, aligning them with the viewpoint of American Needle.

Still, McCann and Gary Roberts agree that the NFL likely views this court as wary of constraining a business on antitrust grounds when the damage to consumers isn’t blatant, making this an opportune time for the league to take its shot.

“My sense is that they view this particular court and this particular case as providing a very good argument for single entity when compared to other cases,” McCann said, “and other potential compositions on the court.
2) Drew Brees of the New Orleans Saints (and also of the NFLPA's executive committee) has a thoughtful op-ed in the Washington Post on the case. Here's an excerpt:
[I]f the Supreme Court agrees with the NFL's argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.

What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don't reward them when they're promoted and set higher ticket prices (including preventing teams from competing through ticket discounts).
3) For a related piece about the NFL's potential problems in securing a new collective bargaining agreement, see Jeff Levine's detailed analysis on The Biz of Football. Here's an excerpt:

The biggest signs that point to a lockout are: (1) the hiring of Bob Batterman, (2) the fact that the NFL is accumulating a war chest in preparation for a lockout and most significantly . . .

It is certainly true that the NFLPA should be alarmed by the NFL’s hiring of Batterman as outside counsel. As Smith alluded to in his email, Batterman was instrumental in designing and implementing the NHL’s lockout strategy. It seems the NFL is now duplicating this strategy as it waits for the current CBA to expire before it will engage the union in any real discussions.

The NFL can afford to wait for the expiration of the CBA partially because of the significant contracts it signed with various sponsors and partners. For instance, the NFL recently signed a deal with DirecTV that pays the league $1 Billion regardless of whether football is played in 2011. This type of deal provides the NFL with plenty of leverage in dealing with the union.
For other Sports Law Blog coverage on American Needle v. NFL, click here.

Friday, January 08, 2010
 
Ed Edmonds on Curt Flood Act and Rights of Minor League Baseball Players

Our own Ed Edmonds was interviewed by Garrett Broshuis, a pitcher in the San Francisco Giants organization and author of the Life in the Minors Blog, on the Curt Flood Act and Rights of minor league baseball players.

Here's an excerpt of the interview:

You've written about entities within minor league baseball lobbying Congress during the passage of this act. Can you talk about the effects of these efforts?


Minor League Baseball was quite concerned about the possibility of any changes to the basic “farm system” relationship of minor league teams to major league teams. In particular, major league teams cover the salaries of minor league players, and this is a critical feature to the existing business model of minor league teams. When the legislation was first considered in Congress, Minor League Baseball made sure that it approached the many Congressmen and Senators with minor league franchises within their Congressional districts or states to make sure that any possibility of a lawsuit by a minor league player could not happen by changing the status of major league players. Most courts that have considered baseball’s historic antitrust exemption have held that it covers the entire business of baseball. The legislation basically left a slight bit of ambiguity by stating that baseball players are “subject to the antitrust laws to the same extent such conduct . . . would be subject to the antitrust laws if engaged in by persons in any other professional sports business affecting interstate commerce.”

To read the rest, click here.

Thursday, January 07, 2010
 
Has the Mayweather-Pacquiao Drug Controversy Touched on The Cure for a Lack of Uniform Rules?

Consider the following hypothetical situation in light of the lingering dispute between Manny Pacquiao and Floyd Mayweather over random drug testing. Following his dramatic back-to-back knockout losses to Carl (The Cobra) Froch and “King” Arthur Abraham, former undisputed middleweight champion Jermain (Bad Intentions) Taylor is a given a bout contract for his upcoming fight with Andre Ward that contains the following provision: “Parties agree that, in addition to the pre-fight medical examinations required by the California State Athletic Commission, the Parties shall submit to pre-fight medical testing identical to that which is mandated by the New York State Athletic Commission.” Taylor’s team promptly calls Ward’s promoter to ask why this provision is in the contract since California already has its own regulations for pre-fight medical examinations. The response: Ward is concerned that Taylor can be vulnerable to serious brain damage due to the nature of his recent knockout losses and believes that California’s pre-fight medical testing does not go far enough, as evidenced by the fact that Edwin Valero was cleared to fight in California on three occasions before evidence of an old head injury was found in a pre-fight CT scan in New York.

If the above hypothetical contract provision sounds unreasonable and/or unnecessary, then you may be one of those who agrees with Pacquiao’s position that if testing is not mandated by the Nevada State Athletic Commission (“NSAC”), he need not agree to it by contract. If, on the other hand, you believe that the above hypothetical contract provision is the end result of an appropriate abundance of caution, you may now be able to see how American boxing promoters can take it upon themselves to close the gap between the nation’s athletic commissions in pre-fight medical and drug testing: by compelling more thorough testing by contract. The current controversy between Mayweather and Pacquiao may have, in short, laid the blue print for how to insure the safety of boxers no matter where they fight in the United States. Boxing is abundant with skeptics however, thus this possibility begs the question: Is the contracting of more rigorous pre-fight medical and drug testing on a regular basis desirable, doable, and realistic? An analysis follows...

For the full article, please go to http://www.8countnews.com/news/125/ARTICLE/2209/2010-01-07.html.

Wednesday, January 06, 2010
 
Gilbert Arenas Suspended by NBA: Will Contract Termination Follow?

Update 1/7/2010:

I have a new Q/A on SI.com which delves into a Washington Post report that Javaris Crittenton may have had a loaded gun.

I also did an interview with Scott Drake on the Legal Broadcast Network on this topic:



Original Post from 1/6/2010
: A few hours ago, I did a Washington Post Q/A on the Gilbert Arenas suspension and addressed some questions about his contract and what the Wizards can do. Arenas was suspended indefinitely by the NBA because of his behavior over the last day. After sounding contrite on Monday and Tuesday, he made some questionable choices, such as pretending (clearly in jest, but not with great timing) to shoot his teammates during Tuesday night's Wizards-76ers game and making some questionable tweets. Here's an excerpt of the Q/A:

Washington, D.C.: What kind of leverage does this give the team, if it's looking for a way to dump Gilbert's contract? Does he have to be convicted of a felony before any morals clause kicks in?

Michael McCann: This is the real interesting issue, in my view. Clause 16 of the Uniform Player Contract empowers teams to void contracts and is vaguely worded to include not only criminal behavior, but behavior that is immoral. It has been seldom used, however (a recent example was the Celtics using it to terminate Vin Baker's contract, and that wasn't entirely successful, since it lead to a financial settlement with Baker). Hypothetically, if the Wizards terminate Arenas' contract through Clause 16, the Players Association will vehemently object and file a grievance, which will be heard by an independent arbitrator. Latrell Sprewell (with the Players' Association help) was able to get his contract with the Warriors reinstated, even though he choked a coach, which is arguably worse than what Arenas did. Bottom line: if Arenas contract can be voided, think about what teams will do with other controversial players who have long-term, lucrative contracts.

_______________________

Hypothetically: If you were Gilbert's lawyer, what would your next move be?

Michael McCann: I would tell him to say absolutely nothing, to turn off Twitter, to get off Facebook, to stop having any public presence. And I'm sure his lawyer told him all of this, but the lawyer can't control the client, especially a client who is as gregarious and idiosyncratic as Arenas. Right now, Arenas has to be thinking about appearing before a court which could sentence to him to prison. Or before a commissioner who could suspend him for months. Or before a Wizards team executive who could try to void a contract that will pay him close to $100 million in its remaining term. It's time to get serious and to get off Twitter.

To read the rest, click here. This Q/A was further discussed by Martha Neil of the ABA Journal and I spoke with Bill Myers of the Washington Examiner about Arenas, as well. Largely unrelated to Arenas, but wanted to mention -- Dan Fitzgerald of Connecticut Sports Law has a terrific top list of sports law stories from 2009, with the number one being college coaches contracts and the law. Hope you have a chance to check out the links and discussion.

Update

Tuesday, January 05, 2010
 
Bloomberg Legal Expert and Supreme Court Reporter Greg Stohr on American Needle v. NFL

Greg Stohr of Bloomberg has a thoughtful commentary on American Needle v. NFL. He interviews several people, including me, for it. Here are some excerpts:

* * *

A broad ruling could insulate professional sports leagues from antitrust claims over video-game licenses, television rights, franchise relocation and even player salaries. Only Major League Baseball is exempt from antitrust laws now.

The NFL dispute “could become the most important sports law case in U.S. history,” said Michael McCann, a professor at Vermont Law School in South Royalton and the author of a law review article on the case.

* * *

The NFL took the unusual step of joining American Needle in requesting Supreme Court review. The league is seeking a broader legal shield, one that might even preclude antitrust accusations that teams conspired to hold down player salaries. The league’s current labor agreement expires after next season.

That possibility prompted the players’ unions for the NFL and three other leagues to urge the Supreme Court to rule for American Needle, or at least limit use of the “single entity” defense. The unions’ lawyer, Jeffrey Kessler, called the NFL’s arguments a “Trojan horse” aimed at securing a sweeping antitrust exemption.

“It’s hoping for an even broader ruling that would give it immunity in player markets, in broadcast markets and in stadium markets, far beyond the ruling of the 7th Circuit,” Kessler said.

That wouldn’t be so bad, said Gary Roberts, dean of the Indiana University School of Law in Indianapolis and co-author of a sports law casebook. He said that the NFL is essentially “one business” and that players shouldn’t have more legal rights than the unionized workforce of any other employer.

“Why should the highest paid unionized workers have more weapons at their disposal than the guys working in auto factories or coal mines?” Roberts said.

* * *

To read the rest of the piece, click here. To read other Sports Law Blog coverage on American Needle, click here.

Stohr, incidentally, is an attorney and author of a terrific and even-handed book on affirmative action--specifically the litigation concerning the University of Michigan's policies--titled A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge (a preview of which can be read on Google Books). If you're interested in that topic, I'd strongly recommend picking up Stohr's book.


Monday, January 04, 2010
 
New SI.com Column on Gilbert Arenas and His Guns

I have a new SI.com column that looks at the potential punishments Gilbert Arena could face at the hands of the legal system, the NBA, and the Washington Wizards. The piece also discusses implications for NBA players who carry guns. Here's an excerpt:
* * *

The Wizards could also attempt to sanction Arenas. The franchise could do so through a suspension or, more controversially, through a termination of Arenas' lucrative contract.

Although I have not reviewed Arenas' contract, Clause 16 of the NBA's Uniform Player Contract cannot be modified for individual player contracts and describes the circumstances in which a team can terminate a deal. One such circumstance occurs if a player "at any time, fails, refuses, or neglects to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship ..."

To be sure, the players' association would vehemently object to the Wizards' using Clause 16 to escape financial obligations, with the union seeking to protect Arenas and other controversial players who could be subject to contractual termination by their teams. Indeed, the very concept of guaranteed NBA contracts could be jeopardized by the termination of Arenas' deal.

* * *
Hope you get to read the rest of the column.

 
Sports Law 2010: Does the NBA Still Have Market Power?

In the 2002 case Fraser v. Major League Soccer, the First Circuit Court of Appeals upheld a jury's finding that Major League Soccer clubs compete in an international market for men's professional soccer labor and thus lack enough "market power" to collude illegally under Section 1 of the Sherman Act.

Since Fraser, few courts have addressed the geographic market definition issue in a labor-side antitrust matter. However, as we approach the 2010s, this issue seems likely to resurface.

In my newest law review article, Does the NBA Still Have Market Power? Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor (to be published in Volume 41 of Rutgers Law Journal), I discuss the potential antitrust implications of approximately 10-15% of the premier men's basketball labor force moving seamlessly between the NBA and foreign leagues.

Presuming the Supreme Court does not cut away too much at sports-antitrust law when it rules in American Needle v. Nat'l Football League (oral arguments begin Jan. 13, 2010), I predict the issue of geographic market definition will emerge as an important one for sports law in the upcoming decade.

Saturday, January 02, 2010
 
Update: Time Warner and Fox Settle

A few hours after midnight on January 1st, Time Warner and Fox settled their cable carriage issue. Terms were not announced, but most likely the agreement involves the payment of a retransmissions fee to Fox of between 30 cents and $1.00 per subscriber.

College football fans in New York, Orlando and Los Angeles can breath easier.