Sports Law Blog
All things legal relating
to the sports world...
Sunday, February 28, 2010
 
2010 MIT Sloan Sports Analytics Conference

I look forward to being a speaker at the 2010 MIT Sloan Sloan Sports Analytics Conference, which will be held this Saturday, March 6. It will be an all day event. Other speakers include:

* Daryl Morey, Houston Rockets GM (and MIT grad)

* Mark Cuban, Owner of the Dallas Mavericks

* Steve Pagliuca, Managing Partner of the Boston Celtics

* Sunil Gulati, President, United States Soccer Federation & Kraft Soccer

* Michael Lewis, author of Money Ball

* Jonathan Kraft, President of the Kraft Group and executive at the New England Patriots

I'll be on the panel titled, "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?". Here are some details on it:

Athletes have progressively gotten bigger, faster, and stronger since the beginning of professional sports. This panel will delve into the science and technology that is producing better athletes. Is there a limit to athletic performance? What constitutes a "level" playing field and when is the line crossed? How are sports changing to deal with today's athletes?

Panelists

Michael McCann, Legal Analyst, Sports Illustrated

Moderator

Gary Belsky, Editor in Chief, ESPN The Magazine

For more information click here.

Saturday, February 27, 2010
 
The Star Caps Saga Continues

More than a year after the NFL attempted to suspend Pat and Kevin Williams of the Minnesota Vikings for violating the NFL Policy on Anabolic Steroids and Related Substances (the “NFL Policy”), litigation involving the case continues. The case took another turn last week when Judge Gary Larson, a Minnesota state court judge, handed down a 44 page opinion in response to the parties’ motions for summary judgment.

Here are some questions raised by the fairly dense opinion, with some answers.

1. What was the ruling? Judge Larson spent most of the opinion rejecting the arguments of the NFL and the Williamses. He rejected the NFL’s arguments that the league’s drug policy should trump state law, and rejected most of the Williamses’ arguments that the suspensions violated Minnesota state law.

2. Did the NFL Win? Yes and no. I’ll start here with what they lost. The NFL was looking for a sweeping victory in this case. The league wants a court—or Congress—to make a determination that the NFL’s drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or Judge Larson.

Instead, Judge Larson held that the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA) apply to professional sports leagues. Why? Well, most simply, because the statutes do not provide any explicit exception for the sports leagues. Although the legislative history of the statutes make it fairly clear that those laws were not created to govern the performance-enhancing drug testing of professional sports, Judge Larson was not willing to ignore the plain meaning of the statute to read in an exception for the NFL. In other words, if the NFL wants an exclusion from DATWA and CPA, it will have to obtain one from the Minnesota state legislature, not from Judge Larson.

Also, using the same rationale as the federal courts, Judge Larson rejected the NFL’s argument that the NFL’s collective bargaining agreement preempts DATWA and CPA.

3. Lost and 24 are having disappointing seasons. What can they do to improve? One word: crossover. Who wouldn’t want to watch Jack Bauer shouting and torturing his way across the island? “The following takes place between, well, I have no idea when this is taking place.”

4. Did the NFL Violate Minnesota State Law? Judge Larson rejected most of the Williamses’ arguments under DATWA (and all of the CPA claims), but held that the NFL violated DATWA by failing to inform the Williamses of their positive test results within three days of the test. Judge Larson also held that the NFL may have violated DATWA’s confidentiality provision. The press allegedly found out about the positive test results before the players, but it’s unclear if the results of the tests were disclosed by the NFL. That issue will have to be determined at trial.

5. If State Laws Apply to the NFL’s Drug Testing Policies, How Can the NFL Maintain a Uniform Policy?
Since the beginning of this dispute, the NFL has argued that application of state laws to the NFL’s drug policies will destroy the ability of the NFL to maintain an effective, uniform drug policy. Judge Larson, however, was unconvinced by the NFL’s argument for two primary reasons. First, Judge Larson was not persuaded that the NFL had a special need to maintain a uniform policy. He wrote: “Despite varying state laws, corporations that participate in employee drug testing conduct business across state lines everyday in this country. Defendants fail to demonstrate why it would be more onerous for the NFL to comply with state laws, than for any other business engaged in interstate commerce.”

Second, even if the NFL did have a special need for uniformity, Judge Larson held that this need is outweighed by Minnesota’s interest in protecting the health and safety of its employees.

Why the lack of deference given to the NFL? In part, it could simply be that Judge Larson does not believe that the NFL should be treated any differently than other interstate businesses and should not be able to bargain around state law. But, Judge Larson also made it clear that he did not see why application of DATWA would prevent the NFL from enforcing its drug policy. According to Judge Larson, DATWA only provides a floor, or minimum protections, for drug testing, and the NFL is free to provide more protection. Judge Larson did not see how notifying the players of their positive tests within three days and not (potentially) leaking the results of the test to the media (which would also violate the confidentiality provision of the NFL’s own policy) would hurt the ability of the NFL to enforce its policy. The NFL, of course, is making a broader argument—they are concerned that a state would enact a law that is too lenient and would prevent the league from disciplining its players in a uniform manner. According to Judge Larson, however, DATWA does not present those concerns, so he did not need to respond to the NFL’s broader argument.

6. Can the NFL Still Win this Case? Yes. It’s not all bad news for the league. DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it can prove at trial that the Vikings, and not the league, are the employer of the Williamses. A ruling that the NFL is not the employer of the players would be a sweeping victory—it would immunize the league from Minnesota state employment law (and potentially from other similar state statutes). But, here’s where it gets interesting. As Judge Larson explained, the Willamses can argue that the NFL is their employer under the “single employer doctrine,” which “looks at whether the commonality of the employers’ operations, management, labor relations, and ownership or financial control, is sufficient to indicate that they should be treated as one whole.” In other words, if the court determines that the league and its teams should be treated as “one whole,” then the NFL is the employer of the Williamses and in violation of DATWA. So, for purposes of this case, it is in the best interests of the NFL to argue that the league and the teams should not be treated as a single entity.

Yet, earlier this year, the NFL argued before the Supreme Court in American Needle that NFL teams have no value without the league and thus the league and its teams should be considered one entity. Granted, the single employer doctrine in the Star Caps case and the single entity antitrust doctrine in the American Needle case are different legal theories that serve very different functions. So, it would not be entirely inconsistent for the NFL to argue that each of the individual teams employs their individual players for purposes of employment law, and that each of these teams and the league act as one entity for purposes of antitrust law. But, there is some overlap in the two doctrines, and the NFL might be walking a fine line here. At a minimum, the NFL’s position in the Star Caps case (that there is a distinction between the teams and the league for employment purposes) lends additional weight to the conclusion of nearly every court that sports leagues and their teams constitute multiple entities for antitrust purposes when acting in the labor market. Of course, this conclusion is not inconsistent with the Seventh Circuit’s decision in American Needle, where the Seventh Circuit recognized that the NFL might be a single entity in some markets (e.g., licensing of intellectual property) and multiple entities in others (e.g., signing players).

7. What’s next?
A settlement conference is scheduled for March 1st, and the trial is set for March 8th. If the NFL loses the case and subsequent appeals, look for them to ask the Minnesota state legislature to exclude professional sports leagues (or at least those with collectively bargained drug policies) from DATWA. If that fails, we might see the NFL go back to Congress asking for help…

Friday, February 26, 2010
 
New SI.com Column on NFL Teams Cutting Players with Post Concussion Symptoms

In the wake of the Eagles cutting Brian Westbrook, I have a new SI.com column on the legal, ethical, and political implications of NFL teams cutting players who suffer from concussions. Here's an excerpt:

* * *

The NFL's collective bargaining agreement does not distinguish concussions from other injuries for purposes of cutting a player. But should it?

After all, there is an arguable disconnect between the NFL's stated commitment to addressing the concussion problem and the ability of teams to cut players who were injured by concussions. In his testimony before the House Judiciary Committee last October, commissioner Roger Goodell said of the link between head injuries and brain ailments, "I can think of no issue to which I've devoted more time and attention than the health and well-being of our players, and particularly retired players."

If that is true, shouldn't players who suffer concussions receive heightened employment protections? In fact, if a player can be cut because of postconcussion symptoms, he may have an incentive to not reveal his injury, a decision that could undermine his health, particularly his long term neurological health.

* * *

NFL teams, for their part, could argue that their decision to cut players who suffer from postconcussion symptoms is neither heartless nor at odds with league efforts to curb concussions; rather, it is a necessity of a salary cap that ties teams' hands. Teams might also insist that it's not their fault if a player suffers concussions -- it's the sport's fault or an unfortunate materialization of risk that every NFL player assumes every down he plays.

Still, the NFL may want to think carefully about teams cutting players with postconcussion symptoms. Congress would seem poised to revisit the concussion topic if there were a pattern of players cut after suffering concussions. Congress has leverage over the NFL, including the threat that it can repeal the Sports Broadcasting Act, which provides antitrust immunity to the NFL and other leagues for their national TV deals. Congress might also re-evaluate the NFL's status as a 501(c)(6) nonprofit organization, which furnishes the league with favorable tax treatment.

* * *

Hope you have a chance to read the rest of the column. I'll be on ESPN Radio's John Clayton Show at 6 p.m. Saturday to discuss the column.

 
An Update on MLB Properties v. Upper Deck

As discussed here earlier in the month, MLB Properties - MLB's trademark licensing and enforcement entity - recently filed a trademark infringement lawsuit against trading card manufacturer Upper Deck, alleging that Upper Deck was producing unauthorized sets of baseball cards featuring MLB uniforms and logos. On February 16th, Judge Sweet granted a motion by MLB Properties seeking to condense the hearing for a preliminary injunction along with an expedited trial on the merits, with a trial date now set for April 19th.


The Beckett Blog is closely following the litigation in a series of posts, including a recent interview with trademark attorney Miguel Danielson about the case. Meanwhile, most of the court papers are publicly available here.

Thursday, February 25, 2010
 
What about curling?

As the Olympics wind down, I found myself thinking about the "What's a Sport?" question as applied to one of the darlings of these Games--curling. Curling seems to have been discovered in Vancouver, as the public has learned of the game's rhythms (somewhat comparable to baseball), its shot-making and strategy (comparable to golf, with collision physics thrown in), and the attractiveness of many of the female curlers (several European curlers even posed nude for a fund-raising calendar). And curling was a staple of NBC's afternoon live cable coverage during the first week (because the stuff people initially wanted to see was being held for tape-delay), so it was easy to find.

So, is it a sport? Looking at our narrow definition (borrowed from anthropologist John Jackson), no. Jackson requires: 1) a ball or ball-like object as the center of attention; 2) a sense of physical urgency when the ball is in play; and 3) the opponent taking steps to thwart one player's efforts as to the ball.

Curling is OK as to # 1 and # 3--the stone qualifies as a "ball-like object" and the purpose of the game is get your stone closest to the center, often by deliberately knocking the other team's stone away. But it runs into a problem on # 2--sense of physical urgency while the ball is in play. There are no periods of running after the ball--much like golf, which Jackson expressly excludes from his definition. Perhaps we could argue there is physical urgency for the sweepers who must follow the stone and often have to move (and sweep) quickly to get the stone where they want it. The physical movement in curling is arguably greater and more urgent than in golf. In golf, the ball is hit and everyone stands and waits to see where it lands; in curling, the stone is launched and there is some rapid movement to control its progress. So perhaps # 2 is satisfied; it's a close call.

What about the broader definition: 1) Large motor skills; 2) simple machines only; 3) objective scoring; and 4) competition.

Curling passes. The brooms qualify as simple machines and large motor skills in upper and lower body, as well as great balance, are necessary for both the person who launches the stone and the sweepers (putting aside whether sweeping should be part of any sport). Scoring is objective and immediately determined. There you go.

 
Seton Hall Symposium Postponed

Due to weather, the Seton Hall sports symposium originally scheduled for tomorrow will be postponed. I'll update when a date gets set.

Monday, February 22, 2010
 
New SI.com Column on Legal Implications of the Olympic Luger's Death

I have an SI.com column on the legal implications on the tragic death of Nodar Kumaritashvili. Here's an excerpt:

* * *

A related issue to the dangerousness of conditions is the type of legal duty owed by the parties to Olympic athletes. According to page 15 of the Olympic Charter, which furnishes the core set of guidelines for the Olympic Games, one of the IOC's roles is "to encourage and support measures protecting the health of athletes." Similarly, according to its own statutes, the International Luge Federation, which regulates luge competitions and works with the IOC, also adheres to the Olympic Charter. Parties involved in the design, construction and maintenance of the Whistler Track would also be expected to provide lugers with reasonable safety.

There are, however, a number of factors that would work against recovery for Kumaritashvili's parents. For one, Kumaritashvili, like other Olympic athletes, had to sign a waiver with the IOC to participate in the Games. The form states: "I acknowledge and agree that: a. I participate in the XXI Olympic Winter Games in Vancouver at my own risk and that I will take all reasonable measures to protect myself from the risks of participation." While waivers are powerful pieces of evidence and bar many forms of civil actions, they are not necessarily complete defenses. The precise wording of the waiver matters considerably; though the Olympic athlete clearly assents to assuming risk as a general matter, certain types risks may not be assumable. Along those lines, even when waivers expressly bar legal claims, they normally do not bar claims based on egregious or unforeseeable behavior. In addition, the IOC's waiver protections may not extend to a torts claim, such as one sounding in wrongful death or negligence, brought against VANOC or other parties.


 
Reaction to Tiger Woods Apology

Sports attorney Jay Reisinger has a thoughtful reaction to Tiger Woods's apology:
Some in the media have asked me whether Tiger took the correct path in handling this matter with respect to public relations given that I had represented Sammy Sosa, Andy Pettitte, and A-Rod (and others) in somewhat similar circumstances. To be candid, I would have provided different advice, and employed a different strategy, but that is not to say Tiger (and/or his advisors) chose the wrong path. At the end of the day, Tiger only had to apologize to his wife, his family, and his friends, which he did. He does not need to apologize to the American public or his sponsors. With his statement (and I’m sure well before then), he apologized to the only people he needed to apologize to. This was a personal failure, not a professional failure.
I agree with Jay that Tiger might have been better off employing a different apology strategy. A full press conference in which he answered questions, or a simple written apology could have served him better. The strategy he instead chose seemed like an attempt to get credit for being a public event or even press conference, but in many ways it was neither. It was Tiger Woods reading a statement that had been carefully written, probably by a number of folks, in a controlled environment without the possibility of questions.

On the other hand, a lot of people seemed to like the speech, so maybe it was the right move. When's the last time an apology generated this much attention? NY Daily News has a good list of 21 famous apologies, most of which are from the last 10 years.

Saturday, February 20, 2010
 
The Chicago Cubs and Salary Arbitration - Ryan Theriot's Hearing is the Last One of the Year

The Chicago Cubs have one of the most interesting team histories in salary arbitration. Their hearing yesterday with Ryan Theriot is only the sixth in the history of the franchise. It is also the first for general manager Jim Hendry. The Cubs hold a 3-2 edge over their players. The fact that they are one of the teams with the fewest hearings is interesting enough. To me, however, what is really fascinating is the list of the five players in the group that Theriot is joining: Andre Dawson, Shawon Dunston, Leon Durham, Mark Grace, and Bruce Sutter. What a group of players! Here is a list of the number of years that these five players spent in the major leagues: Dawson - 21; Dunston - 18; Durham - 10; Grace - 16; and Sutter - 12. The analysis could go on in so many directions.

Although Dawson’s plaque in Cooperstown will depict him as a member of the Montreal Expos, “Hawk” will join Bruce Sutter who was inducted in 2006. Sutter’s plaque shows the reliever with a St. Louis Cardinals cap. Dawson lost his hearing in 1988 ($1,850,000 - $2,000,000). Mark Grace, the most recent hearing before Theriot, lost his case in 1993 ($3,100,000 - $4,100,000). Shawon Dunston defeated the Cubs in 1990 ($925,000 - $1,250,000). Leon Durham lost his 1985 hearing ($800,000 - $1,100,000). Bruce Sutter defeated the Cubs in 1980 ($350,000 - $700,000). Stephen Goldberg, the most experienced of all salary arbitrators, decided three of the previous five hearings. He ruled for the Cubs in the Dawson and Durham cases and against Chicago in the Dunston case. Howard Block handled the Grace case, and Thomas Christenson decided the Sutter case.

The other general managers for the Cubs that have gone to hearings are Bob Kennedy (1980 - Sutter), Dallas Green (1985 - Durham), Jim Frey (1988 - Dawson, 1990 - Dunston), and Larry Himes (Grace - 1993). Jim Hendry became the general manager in July 2002.

Theriot is hoping to win his case today with a demand for $3,400,000. The Cubs offered $2,600,000. Stephen Drew’s signing at $3,400,000 on January 19 should work against the Cubs. Drew is in the same service class as Theriot (3 years). Erick Aybar of the Angels, who agreed late this week to a $2,050,000 deal with $100,000 in possible incentives is also in this service group.

Thursday, February 18, 2010
 
The Good News is That Arbitration is Nearing the End - Jeff Mathis and the Angels

Mike DiGiovanna reported this morning on the Los Angeles Times Sports Blog that Jeff Mathis is in Tampa today for his hearing with the Angels. Mathis, who received $450,000 for his services last year, is seeking $1,300,000. The Angels offered $700,000. Those figures create a midpoint at $1,000,000. Mathis is in the three-four year service group, and his career batting average is right at the Mendoza line (.200). If you want a good explanation of the Mendoza Line, see Paul Dickson, The Dickson Baseball Dictionary, 540-541 (Third ed., 2009). Mathis split time last year with Mike Napoli, who played in 114 games to 84 for Mathis.

In his blog posting, DiGiovanna also reports that Erick Aybar, the other Angels’ player who has not yet settled his case, is expected to avoid a hearing and reach an agreement. Aybar is also in the three-four year service group.

 
WSJ Law Blog on Luge Accident Liability

Ashby Jones from the Wall Street Journal's Law Blog has posted a story on potential legal issues surrounding the tragic death of Georgia luge racer Nodar Kumaritashvili last week in Vancouver. Sports Law Blog former guest Ryan Roderberg, Duke Law Professor Doriane Coleman, and I are quoted in the story. Although the grieving family so far has not indicated interest in a lawsuit, any such claim would appear to face some obstacles due to the available defenses of express, primary, and secondary implied assumption of risk. Given apparent complaints about the track prior to the accident, however, a plaintiff might be able to overcome such obstacles.

 
Figure-skating: Still fixed, still not a sport

If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges.

Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging. The theory was that if no one could know how anyone else voted, there was less likelihood that someone would bribe a judge or trade votes, since there was no way to ensure the other side held up their end of the bargain. But a new study by Dartmouth economist Eric Zitzewitz finds that anonymous scoring has had the opposite effect: Home-country bias is about 20 percent higher than under the old full disclosure system. Although backroom-dealmaking is riskier (and thus less likely), the loss of public and media accountability makes it easier for individual judges to bias for home skaters (or skaters from "friendly" nations).

Jon Siegel discusses a proposal from his GW colleague Michael Abramowicz. His solution is to evaluate judges based on how close their individual scores are to the average of all the scores for a skater (with the average reflecting, to some degree, the "right" score). After compiling each judge's scores over time, rewards such as compensation and choice assignments (which competitions, which events) could be determined by how close a judge is to the average over all each competitions.

Interesting idea. But I disagree with Jon that this could "solve the problem of subjectivity in figure skating judging." Nothing can solve that problem, because the judging is inherently subjective and nothing is going to change that. But that just goes to my bugaboo of why it is not a sport.

Let me leave on two questions. First, why don't we have similar problems in other judged Olymic events (similarly, not sport), such as moguls skiing (I watched this and still have no idea how the winner was determined) or half-pipe snowboarding (or whatever it is that Shaun White keeps winning)? Second, were we actually better off in the days of the hallowed-yet-infamous East German Judge, when we recognized that the thing was rigged along Cold War politics and just dealt with it?

Wednesday, February 17, 2010
 
A Hearing a Day - Wandy Rodriguez

The Houston Astros and pitcher Wandy Rodriguez held baseball’s fifth hearing of the year today. The Astros offered Rodriguez $5,000,000 while the pitcher requested $7,000,000. The gap of $2,000,000 demonstrates a significant disagreement between the two parties over the lefty’s value. The midpoint is $6,000,000. Rodriguez was paid $2,600,000 in 2009 after exchanging figures with Houston ($3,000,000-$2,250,000), and he is in the service group of players between four and five years. Four of the strongest starters in this group signed multi-year contracts: Felix Hernandez (Seattle), Edwin Jackson (Arizona), Josh Johnson (and Justin Verlander (Detroit). The one-time star of this group, Chien-Ming Wang just signed a $2,000,000 deal with Washington this week. Joe Blanton (Philadelphia), who just barely made it into the service group with over five years, also signed a multi-year deal.

The panel was Richard Bloch, Elizabeth Neumeier and Fredric Horowitz. Bloch is a very experienced arbitrator with a significant pro-team record. Rodriguez was 14-12 last season with a fine 3.02 ERA and a career high strikeout total of 193. His career won-loss log is 51-52. Again, I will post more in the comments section.

 
The 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition

Last week, Tulane Law School hosted the 2010 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. This year’s problem was based on the Star Caps case that has been discussed at great length on this site.

I want to take this opportunity to thank the students at Tulane Law School—in particular Nathan Prihoda, Marcus Edwards, Daniel Meyer, Julia Farinas, Andrew Miragliotta, Ashlee Cassman—for all of their hard work in putting this event together. I also want to thank our “celebrity” guest judges for joining me on the panel to judge the finals of the competition. The guest judges were: Andrew Brandt, the founder of the National Football Post and a former vice president for the Green Bay Packers (among many other things), Richard House, General Counsel of the New Orleans Hornets. Judge John Grout, Jr., and Joe Ettinger, Tulane Law class of 1956. And, of course, thanks to the students from the 40 different law schools from around the country for competing in this year’s event. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras.

Finally, congratulations to the winners of this year’s competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:

The Winner of the 2010 Competition was: Loyola University New Orleans School of Law.

The Runner-Up: Southwestern University School of Law.

The best brief was submitted by: UC Hastings College of the Law.

 
University of Baltimore Law School of Law Sports Law Symposium

If you're in the Baltimore area, tomorrow from 10:30 a.m. to 3:30 p.m. the University of Baltimore will be hosting a symposium that will address three issues: (1) increasing coaches' compensation; (2) the status of the NFL's collective bargaining agreement; and (3) licensing the Ultimate Fighting Championship. The keynote speaker will be agent Tom Condon, who is an alum of the law school. For more details, click here.

 
Not Another Post on Salary Arbitration - Oh, Yes - Brian Bruney

The Washington Nationals went to a hearing yesterday with Brian Bruney, the relief pitcher that they acquired from the New York Yankees in December. Bruney hopes to compete for the closer role with Matt Capps, another new acquisition for the Nationals, although the former closer for the Pirates certainly has more experience in that role.

The Nationals, a team that seems to enjoy going to hearings and may have another before the end of the week with Sean Burnett, offered Bruney $1,500,000. That figure is a modest increase over the $1,250,000 that Bruney made with the Yankees last year. Bruney is seeking $1,850,000 leaving a midpoint of $1,675,000. The panel that heard the case was Dan Brent, Sylvia Skratek, and Steven Wolf. The panel might be inclined to look at Bruney’s numbers last year, a 5-0 won-loss record and a 3.92 ERA in his role as setup man, and feel that he should receive more than a modest increase. However, an early season injury and the fact that he was not on the Yankees' roster for both the Twins or the Angels playoff series and turned in a poor single game performance in the World Series might well be used favorably by his new team. This must have been an interesting hearing for the Bruney side of the table that listened to a presentation by a team he has never pitched for. Will Bruney get his number on his birthday? I will add more in the comments as usual this year.

Monday, February 15, 2010
 
Cody Ross - Arbitration Hearing Three

Cody Ross and the Florida Marlins headed to their hearing this morning. According to reports that I have read, the arbitration panel for this case was Margaret Brogan, Howard Edelman, and James Oldham. The Marlins, like their counterpart in Tampa Bay, use a file-and-go philosophy with their salary-arbitration players. Ross played in 2009 for $2,225,000, and he is seeking a raise to $4,450,000. The Marlins responded with an offer of $4,200,000 leaving a midpoint of $4,325,000 and a gap of $250,000. Another similarity with the Rays is the relatively small gap in the two exchanged figures number. The gap in the Upton-Tampa Bay case was $300,000. The Rays won their case on Saturday to maintain the only perfect record in arbitration. The Philadelphia Phillies had a 7-0 record until they lost their case to Ryan Howard in 2008.

Ross’s primary 2009 and career statistics are:

G - 151 - 483; PA - 559 - 1506; 2B - 37 - 99; SO - 122 - 354; HR - 24 - 72; BA - .270 - .264; OBP - .321 - .323; SLG - .469 - .484

Ross and Corey Hart are in the same service class. The Hart decision last week did not help the Marlins.

I will place additional analysis in the comments section related to this post. There is one more hearing that will most certainly happen this week because the Astros have a similar philosophy to the Marlins and Rays. That one is between Houston and Wandy Rodriguez on Wednesday. Other cases that have not settled yet are the Angels and Erick Aybar and Jeff Mathis, the Nationals and Brian Bruney and Sean Burnett, and the Chicago Cubs and Ryan Theriot.

Sunday, February 14, 2010
 
Cardozo Law Symposium: The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses

I look forward to delivering the keynote address and serving as the new media panelist at a symposium hosted by the Cardozo Arts and Entertainment Law Journal on Thursday, March 4. The symposium is titled "The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses". New York CLE credit is available for those who attend. Here are some more details:


AGENDA

7:00 p.m. to 7:05 p.m. - Introduction: Shira Siskind, Executive Editor

7:05 p.m. to 7:30 p.m. - Keynote Speaker: Michael McCann,
Legal Analyst for Sports Illustrated; Associate Professor of Law, Vermont Law School

7:30 p.m. to 9:00 p.m. - Panel Discussion: The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses

9:00 p.m. to 10:00 p.m. - Cocktail Networking Reception




Distinguished Panelists

Symposium Chairs:
Shira Siskind
Executive Editor, Cardozo Arts & Entertainment Law Journal

Porcher L. Taylor, III, J.D
Associate Professor, University of Richmond

Moderator:
Fernando M. Pinguelo, Esq.
Partner and Chair of the Entertainment Law Group at Norris McLaughlin & Marcus, P.A.

Panelists:
Michael McCann
News Media Panelist
Legal Analyst for Sports Illustrated; Associate Professor of Law, Vermont Law School


Dorothy Crenshaw

PR/Crisis Management Representative Panelist
CEO and Creative Director, Crenshaw Communications


Ayala Deutsch
Professional NBA Counsel
Senior Vice President and Chief Intellectual Property Counsel, National Basketball Association (invited)


Stanley Kroenke
Professional Team Owner Panelist
Owner & Governor, Kroenke Sports Enterprises, LLC (invited)

For more details, including info on obtaining CLE credit, click here. The Journal will be publishing an article authored by Porcher Taylor and Fernando Pinguelo titled, "The Reverse-Morals Clause: The Unique way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals."

Saturday, February 13, 2010
 
B.J. Upton and Rays - Second Hearing This Year

B.J. Upton and the Tampa Bay Rays conducted the second hearing of this year's salary arbitration season yesterday. The case was heard by a veteran panel of Elizabeth Neumeier, Elliott Shriftman and Gil Vernon. The decision is due today. Tampa Bay's "file-and-go" philosophy forced the hearing once the two sides arrived at the filing deadline. Upton requested $3,300,000. The Rays countered with $3,000,000. That produced a midpoint of $3,150,000. The "file-and-go" system helped produce the short gap between the two parties. Either way, the Rays have only $300,000 at stake if they lose, something that they have never experienced in their four previous hearings including a win last year over Dioner Navarro. Will the Upton case produce the Rays' first loss? Upton's 2009 season was a disappointment when compared with 2007 and 2008. He had three-year lows in runs scored, batting average, on-base percentage, and slugging percentage. He has only a total of 20 home runs in those two years compared to his 24 in 2007.

This one is so close that it is difficult to predict. With teams owning a 57-43% edge over the history of arbitration, the Hart victory over the Brewers yesterday, and Upton plate decline last year, I am leaning towards the Rays on this one.

Friday, February 12, 2010
 
Roger Goodell Given an Extension

Numerous news outlets are reporting that the NFL has given commissioner Roger Goodell a five-year extension. This extends his contract through March 1, 2015. The Commissioner is finishing his fourth year in office. This is an interesting development with the current labor situation in the NFL.

Commissioner Goodell presented his annual state-of-the-league address today. He was more upbeat about the negotiations compared to the comments earlier this week by DeMaurice Smith, the NFLPA's executive director.

 
Corey Hart, the Brewers, and Baseball Salary Arbitration - Hart Wins

Corey Hart and the Milwaukee Brewers conducted the first arbitration hearing of the year yesterday. For the Brewers, this is only the fourth hearing in the history of the franchise, and it is the first for general manager Doug Melvin, who took over for Dean Taylor in 2002.

Here are the important numbers:

Brewers Offer - $4,150,000; Hart’s request - $4,800,000
Midpoint - $4,475,000; Gap - $650,000
Hart previous salary - $3,250,000; Increase requested - $1,550,000; Increase offered - $900,000

Hart has 4 years and 38 days of major league service. According to my research, there are 18 outfielders in the service group between 4 and 5 years. I would submit that this is the main starting point for setting up a list of comparable players. Perhaps the most interesting to consider from this list are the following players: Jeff Francoeur (New York Mets), Conor Jackson (Arizona), Jeremy Hermida (Boston), Ryan Ludwick (St. Louis), Cody Ross (Florida), and Josh Willingham (Washington). I will detail my analysis in the comments’ section of this blog.

If the arbitration panel consisted of a representative group of Brewers’ fans who have commented on this case, Hart would be in trouble. It seems to be that at least 67% of the comments that I have read are against Hart. Part of that, of course, is that many fans feel that all players make too much. The reported panel that heard the case is Elizabeth Neumeier, John Sands, and Sylvia Skratek. Neumeier is a veteran panel member. According to my research her panel record is 13-9 in favor of teams. Sands’ record is 4-2 in favor of teams, and Skratek decided her first case in 2008 when she agreed with the Astros in their hearing against Jose Valverde.

I am going to lean slightly toward the Brewers in part in deference to their history of trying to settle all of their cases and an analysis of the numbers. However, if the panel thinks that Francoeur and Willingham are two strong comparable players, they could go with the outfielder.

I have added five comments detailing my analysis of the outfielders in the same service group, the panel of arbitrators, and the general managers involved in the previous four decisions by the Brewers.

Thursday, February 11, 2010
 
A Correction Regarding the Brewers

One of the great challenges with trying to have correct information about over 3,200 players who have filed for salary arbitration during the history of the process is tracking down the correct information for every single player. Plus, you want to check and recheck to debug your data set. After listing that the Brewers had four cases in their history instead of three, I sent emails to both Adam McCalvy of MLB.com and Tom Haudricourt of the Milwaukee Journal Sentinel. They rightfully asked me for my source information about Tim Johnson. Well, that started me on a check of my data that produced the following story -

The files of the late Doug Pappas that I originally found via SABR listed the player as T. Johnson of Mil. I figured that this was Tim Johnson of the Brewers. The Pappas file is based on the work of Thomas Timmerman for 1978. I had relied on it as pretty accurate for years while I was searching for multiple sources to verify "my" information. Anyway, Tim Johnson was with the Brewers from 1973 through the beginning of the 1978 season. However, I had not found an article that verified that he went to arbitration. I did know that he was traded to the Toronto Blue Jays for Tim Nordbrook on April 28, 1978. Another "highly reliable" source listed the Johnson as Cliff Johnson of the Yankees. However, a New York Times article listed Cliff Johnson as signing his contract on February 18, 1978. “Yankees Sign Johnson For Reported $100,000,” New York Times, Feb. 19, 1978, 28. There is no mention of salary arbitration.

Over this past summer I asked one of the research assistants working with me to go through the microfilm editions of The Sporting News to fill in gaps. In particular, I asked her to initially focus on 1978 and 1979. Those years are problems because it predates the LexisNexis and Westlaw databases that supported so much of my work over the years. So, today, I went to the data that was downloaded this summer, and I think I found a "more" credible source. In an article detailing the Twins by Bob Fowler (“Twins Seeking Strength in Numbers,” The Sporting News, March 11, 1978, 61, col 5), I found a discussion of the "four" Twins that went to arbitration that year, not the "three" listed in most sources. So, it appears that the "real" Johnson that year was Tom or Tommy Johnson. So, I have to correct my data and agree that the Brewers have only been to three hearings prior to this year. By the way, Tom Johnson was released by the Minnesota Twins on February 8, 1979. Griffith did not take kindly to player who took him to a hearing.

So, I have to change my data for the Twins and the Brewers, and I am going to return to my analysis of Corey Hart. I will post that for those of you who tolerate my salary arbitration postings on this blog.

 
Court Rejects EA's First Amendment Defense

On Tuesday, Mike mentioned the federal district court's denial of the NCAA's motion to dismiss in the O'Bannon case. As part of that ruling, Keller v. EA, filed in the same court, was consolidated with the O'Bannon case. In a separate ruling, the court held that the First Amendment does not trump the right of publicity under California law in the context of video game use of players' identities.

First, the court correctly explained that EA's use does not meet the transformative use test:

Here, EA's depiction of Plaintiff in "NCAA Football" is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state....EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game's setting is identical to where the public found Plaintiff during his collegiate career: on the football field.

The court also properly rejected EA's assertion that use of players' identities in video games is a matter of public interest:

The game does not merely report or publish Plaintiff's statistics and abilities. On the contrary, EA enables the consumer to assume the identity of various student athletes and compete in simulated college football matches. EA is correct that products created for entertainment deserve constitutional protection. (citation omitted) But it does not follow that these protections are absolute and always trump the right of publicity.
EA cites cases in which courts held that the public interest exception protected online fantasy baseball and football games. Although these games are more analogous to "NCAA Football," the cases are nonetheless distinguishable. In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, a declaratory judgment action, the plaintiff sold "fantasy baseball products" that included the names and statistics of major league baseball players.... C.B.C. Distribution is inapplicable here. Success in "NCAA Football" does not depend on updated reports of the real-life players' progress during the college football season. Further, EA's game provides more than just the players' names and statistics; it offers a depiction of the student athletes' physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field. EA's use of Plaintiff's likeness goes far beyond what the court considered in C.B.C. Distribution.


 
Reminder: Sports Law Symposium in Chicago Tomorrow

Just a reminder that the Depaul Sports Law Symposium, "Sports and the Great Recession," is scheduled to kick off on Friday at 9 am. Although "Snowmageddon" may prevent some panelists from getting to Chicago in time, it should still be a great event. To register (free for Depaul law students, $20 for other law school students, and $60 for general attendees) visit this site. Illinois CLE credit has been requested.

Wednesday, February 10, 2010
 
First Salary Arbitration Hearing Set For Tomorrow

It appears that the first salary arbitration hearing of the year will take place tomorrow between Corey Hart and the Milwaukee Brewers. Tom Haudricourt of the Milwaukee Journal Sentinel and Adam McCalvy, the Brewers’ MLB.com contributing writer, have both been covering the Hart negotiations. Both writers reported that chief negotiator Teddy Werner imposed a January 29 deadline on Hart’s agent Jeff Berry of Creative Artists Agency (CAA). The deadline passed without a settlement, so both sides have headed to Florida for the hearing. Werner and Assistant General Manager Gord Ash worked on the negotiations with Berry. Although they will both attend the hearing, the case will be presented by the New York law firm that they hired. Without a settlement, this will be the Brewers first hearing in twelve years.

The Brewers have only four previous hearings in their history marking them as one of the teams with the lowest total appearances. They have won two and lost two. The most recent hearing was in 1998 with Jose Mercedes. Mercedes won his arbitration decision before a panel of Roger Abrams, Jerome Ross, and Gil Vernon. Mercedes requested $1,050,000 and the Brewers offered $615,000. The other player to win a decision against the Brewers was Tim Johnson in 1978. Johnson received his figure of $92,500 instead of the Brewers offer of $62,000. J. Fred Holly was the arbitrator.

Mike Fetters lost to the Brewers in 1994, and he ended up with $400,000. Fetters had requested $825,000, but arbitrator Howard Block sided with Milwaukee. Jim Gantner lost his argument in front of Daniel Collins in 1991. The exchanged figures were $1,000,000 by the Brewers and $2,000,000 by Gantner.

Hart settled last season with the Brewers just before his hearing for the midpoint figure of $3,250,000. The Brewers offered $2,700,000, and Hart was seeking $3,800,000. In 2008, Hart earned $444,000. His salary in 2007 was $395,000, a raise from the $329,500 figure he received in 2006. He was drafted in the eleventh round in 2000.

In 2006, Hart played in 87 games for the Brewers with a .283 batting average, 9 home runs, and 33 RBIs. He became a regular the following season while slamming 24 home runs, knocking in 81, and batting .295. He also scored 86 runs while hitting 33 doubles. During his 2008 season, Hart’s totals in batting average (.268) and home runs (20) dropped off, but he did improve his RBI totals (91) and doubles (45) while participating in 157 games. He was also selected for the National League All Star team. Based on the solid back-to-back performances, Hart saw his salary increase substantially because of his initial eligibility for salary arbitration. However, in 2009, Hart lost time due to a midyear appendectomy. In 115 games, Hart’s batting average dropped to .260 although his on-base percentage of .335 was a solid improvement over his 2008 figure of .300. His power numbers of 24 doubles and 12 home runs were below his 2007-2008 totals while his RBIs fell to 48. His six season totals for stolen bases are 64, but he has been caught 28 times.

If there is a hearing tomorrow, I will post an analysis of Hart’s case based on my research and the contributions of Notre Dame law students.

 
New Law Review Article: The NBA and the Single Entity Defense: A Better Case?

Later this year, the Harvard Journal of Sports and Entertainment Law will publish my article titled, "The NBA and the Single Entity Defense: A Better Case?". It is in part a companion article to my Yale Law Journal feature, "American Needle v. NFL: An Opportunity to Reshape Sports Law"

Here is an abstract of the Harvard article:

* * *
This Article will explore the relationship between the National Basketball Association, its independently-owned teams, and associated corporate entities, including the Women’s NBA, NBA Properties, NBA Developmental League, NBA China, and single entity analysis under section 1 of the Sherman Act. Section 1 chiefly aims to prevent competitors from combining their economic power in ways that unduly impair competition or harm consumers, be it in terms of raised prices, diminished quality, or limited choices. Single entities are exempt from section 1 because they are considered “one,” rather than competitors, and thus their collaboration does not implicate anticompetitive concerns.

In American Needle v. NFL, the Supreme Court will decide whether the National Football League, its teams, and associated corporate entities, constitute a single entity. Other leagues, including the NBA, may be impacted by the Court’s decision. If the NBA were a single entity, it could potentially execute exclusive contracts with video game companies and apparel companies, restrain players’ salaries and employment autonomy, and impose heightened age restrictions on amateur players who seek employment in the NBA, all without concern for section 1 scrutiny.

In a recent feature in the Yale Law Journal, I discourage the Court from recognizing the NFL as a single entity but recommend that Congress consider targeted, sports league-related exemptions from section 1. In this Article, I survey whether the NBA’s globalized business agenda and the league’s exposure to competition from foreign professional basketball leagues necessitate that NBA teams act in unison and with a “shared consciousness.” The necessity of cooperation, at least for certain international endeavors, may distinguish NBA teams from teams in NFL, which remain more anchored to domestic operations. To the extent Congress considers legislative exemptions for professional sports leagues, the experience of the NBA, a trailblazer in promoting a league product abroad, may lend insight on how antitrust law should regulate leagues in the years ahead.

* * *
To read the article, click here. As it is a draft, I would welcome comments and suggestions by e-mail (mmccann[at]vermontlaw.edu).

Tuesday, February 09, 2010
 
O'Bannon v. NCAA Moves to Discovery

Pete Thamel of the New York Times writes this morning about a federal judge denying the NCAA's motion for dismissal in O'Bannon v. NCAA, a lawsuit which concerns whether former NCAA student-athletes should receive compensation for the NCAA's use of their images and likenesses. The ruling means that the NCAA's licensing contracts, and many other types of documents, will be subject to discovery.

Pete interviews me for the story, which is excerpted below.

* * *
“This is a truly historic day — to our knowledge, no one has ever gotten behind the scenes to examine how student-athletes’ current and future rights in their images are divided up and sold,” said Jon T. King of Hausfeld LLP, one of the lead lawyers representing O’Bannon.

The N.C.A.A.’s licensing deals are estimated at more than $4 billion, although all of those deals may not be made public in this case. The N.C.A.A. said in a statement that it was confident in its case. “We’re pleased that the court recognized defects in some of the claims made by plaintiffs and dismissed those,” said a statement provided by the N.C.A.A. spokesman Erik Christianson. “The court’s other rulings at this preliminary stage of the cases do not diminish the N.C.A.A.’s confidence that we will ultimately prevail on all of the claims.”

The significance of this case appears to transcend financial reward, as its cuts to the core of the N.C.A.A.’s amateurism ideals.

“We think the N.C.A.A. will defend this case saying they are protecting amateurism and trying to prevent excess commercialization,” King said. “That’s their mantra in regard to the big-business aspect. We think their hypocrisy will be fully exposed once their numbers are put in the public eye.”

Michael McCann, a professor at Vermont Law School who specializes in sports law, called Monday’s ruling a “setback” for the N.C.A.A. He said that the case would probably be followed closely by members of Congress who were interested in the N.C.A.A.’s tax-exempt status.

“I think it’s an important case because it gets at the core of the student-athlete mission and the issue that new players have in terms of waiving away potential benefits they may enjoy when they’re out of college,” McCann said.

* * *
To read the rest, click here (or turn to page B14 of today's New York Times). To read an SI.com column I wrote on O'Bannon v. NCAA, click here.

 
Seton Hall Sports and Entertainment Law Annual Symposium


On Friday 26, the Seton Hall Journal of Sports & Entertainment Law will be hosting its annual symposium. Here's some additional information:

The event will examine the National Football League's Rooney Rule, discuss financial and estate planning for athletes and entertainers, and consider the bankruptcy and relocation issues related to the Phoenix Coyotes bankruptcy litigation. The Symposium will address these topics in the form of three panels, moderated by Professor Timothy Glynn, Seton Hall University School of Law, Lance T. Eisenberg, Esq., Drinker Biddle & Reath, LLP, NFLPA Registered Player Financial Advisor, and Professor Geoffrey C. Rapp, University of Toledo College of Law, respectively. Additionally, Lou Lamoriello, CEO, President, and General Manager of the New Jersey Devils, will appear as the Symposium's keynote speaker. 5 CLE credits will be awarded for full day attendance.

Featured speakers include:

Professor Robert Boland, New York University Preston Robert Tisch Center for Hospitality, Tourism, and Sports Management

Robert Talley, Head Football Coach, Stonehill College

Rich Ensor, Commissioner, Metro Atlantic Athletic Conference

Charlotte Westerhaus, Vice President of Diversity and Inclusion, NCAA

Robert Raiola, CPA, Van Duyne, Behrens & Co., P.A., Co-Author, Winning Tax Strategies and Planning for Athletes and Entertainers

Justin McCarthy, RR Advisory Group, LLC

Jim Spanarkel, Financial Advisor and former Duke Basketball Player

Brian Leonard, Fullback, Cincinnati Bengals (Rutgers University)

Aaron Van Duyne III, Senior Principal, Van Duyne, Behrens & Co., P.A.,(Entertainment Industry Issues)

Professor Stephen J. Lubben, Seton Hall University School of Law

J. Gregory Milmoe, Esq.,Partner, Skadden, Arps, Slate, Meagher, & Flom, LLP

Professor Marc Edelman, Barry University School of Law and Sports Attorney

Andrew Sroka, Esq., Senior Associate, Brown Rudnick LLP

Monday, February 08, 2010
 
Who Dat Days at Tulane

We don’t get many snow days down here in New Orleans. We get Mardi Gras days (and hurricane evacuations). For the first time, though, Tulane is having a Who Dat day. Here’s the official email from Scott Cowen, Tulane’s President:

February 8, 2010

Good Morning,
There are certain moments in life that are transcendent and transformative and are too wonderful for words. Sunday's Super Bowl victory was such a moment. It was a victory that went far beyond football, highlights, statistics or trophies. This world championship, coupled with the election of a new mayor by an overwhelming majority, is about the progress and future of our beloved city.

This was a moment for all New Orleanians. The way this city and this team, our team, have embraced one another is unique in all the world. While most professional athletes discuss themselves and their gifts at post-game press conferences, our Saints invariably talk about their city and what its recovery has meant to them and to the nation.

This is what I believe we will be celebrating when we welcome our hometown heroes at tomorrow's parade. In addition, we will be congratulating our new mayor, Mitch Landrieu, as he leads us into the future. So in recognition of New Orleans, our recovery, our revival and the unity we displayed in one incredible weekend at the polls and on the national stage, I am going to close the university (uptown, downtown and primate center) tomorrow at 1 p.m.

This will allow all New Orleans-area Tulanians time to gather with family, friends and neighbors (are there any other categories of people in New Orleans?) and celebrate what is truly a historic moment in the long life and new life of our city. Enjoy the parade but most of all enjoy the moment. It truly is our time!

Geaux New Orleans,
Geaux Saints,
Geaux Tulane,

Scott

Thursday, February 04, 2010
 
March Trademark Infringement Madness


With March just weeks away, attention will quickly move from the Superbowl to the NCAA basketball tournament.

In the past, the NCAA's Trademark Protection Office has been aggressive in defending the use of this "March Madness" and related trademarks. According to the Kansas City Star, the NCAA sends out "scores of cease and desist letters and sometimes sues." For instance, in March Madness Athletic Ass'n LLC v. Netfire Inc., the plaintiff, the NCAA-owned LLC that holds the NCAA's asserted common law rights to the "March Madness" mark, sought to stop the defendant from using the registered domain name marchmadness.com. The U.S. Court of Appeals for the Fifth Circuit upheld a district court award for the plaintiff. 120 Fed. Appx. 540 (5th Cir. 2005) (unpublished opinion).

Interestingly, the Illinois High School Athletic Association, which has used the term "March Madness" for its own basketball tournament since the 1940s, holds the federal trademark registration for the term. However, the 7th Circuit has excluded rights to the use of the term in connection with the NCAA tournament from the scope of IHSA's registered mark. IHSA v. GTE Vantage, 99 F.3d 244 (7th Cir. 1996).

This year, I've noticed once againt that many businesses are offering NCAA-themed products and services, some of which come close to using the NCAA's trademark. One of the more amusing offerings, via our local paper, comes from the medical group Genito-Urinary Surgeons Inc. The practice is offering "Vasectomy Madness" procedures in the days leading up to the Tournament. Surgery would include a doctor's note authorizing the patient to miss two days of work for recuperation, which would also facilitate some TV viewing. Similar services have been offered by other clinics in Oregon, Texas, and other states, as CNBC reported last year.

The practice group hasn't called its offering "Vasectomy March Madness", and its more limited use of only part of the NCAA's mark would likely be protected as parody. Since it's unlikely the NCAA itself will market such surgical services, the likelihood of consumer confusion seems low. See the "CHEWY VUITTON" case for guidance on the law.

Wednesday, February 03, 2010
 
Who Dat and Other Links

A few quick links as Super Bowl Sunday approaches.

First, the NFL sends cease and desist letters to local vendors in New Orleans who are selling “who dat” merchandise.

Second, Senator Vitter (among others) responds to the NFL.

Third, the NFL softens its who dat stance a bit.

Fourth, I ask why the NFL won’t allow the Superdome to show the Super Bowl. Twice.

Finally, I have joined the twitter world. For those of you interested in getting sports law updates and information delivered to you 140 words or less at a time, you can follow me here.

 
Jay Reisinger Blog

Sports lawyer Jay Reisinger [at left in photo], who has represented Andy Pettitte and Sammy Sosa, among other big league players, has started a new blog, with an emphasis on sports law. Here are a couple of his first posts:

Debunking Salary Arbitration Myths - Part I. Excerpt: "Even more beneficial to the clubs is the fact that salary arbitration contracts can be non-guaranteed. The guarantee is matter of negotiation, but the majority of salary arbitration contracts are non-guaranteed. Thus, if a player fails to perform in spring training (or engages in some prohibited activity which results in injury), the club has the right to terminate the contract and pay 1/6 of the value of the contract to the player."

Adrian Mutu (Romanian soccer player who allegedly failed a drug test and has been punished by FIFA). Excerpt: "Mutu was not party to the contract between Chelsea and Parma, yet the CAS held that Mutu, as a result of his testing positive for cocaine, was liable for the amount of the transfer fee (and other related damages)."

For more, click here.

Tuesday, February 02, 2010
 
Is President Obama Serious about Taking on the BCS?

In a terrific column, Sports Illustrated's Andy Staples addresses President Obama's interest in replacing the BCS with a college football playoff. Andy interviews me for the column. Here's an excerpt:

* * *

Second, the federal deficit will not rise one penny if the Justice Department investigates the BCS. The Justice Department employs people, and those people must do something. If they are ordered to investigate the BCS, there is an opportunity cost exacted -- they could have investigated something else -- but not a monetary one. Also, it is the government's responsibility to monitor the activities of a multi-billion business that involves more than 100 publicly funded universities.

Third, [BCS executive director Bill] Hancock's response doesn't actually answer the question; it simply misdirects. So, as a public service for Hancock and the bowl lovers everywhere, I called Michael McCann, the Vermont Law School professor who writes about legal issues for SI.com, and asked him to explain how the BCS might defend itself against an antitrust challenge.

"The people that support the BCS would say that we wouldn't have a national championship without it," McCann said. "All it does is reflect the college football standings. It doesn't do anything other than that."

McCann also summarized what the Justice Department might argue in an antitrust proceeding against the BCS. "It's arguably a cartel," McCann said. "It's producers and sellers joining together to control a product's production, price and distribution. ... In terms of anticompetitive effect, it affects prices. It also creates financial and recruiting disadvantages for some schools. There are economic disparities between BCS members and non-BCS members . . . ."

* * *

Besides, even BCS leaders will admit that there's more money in a playoff. The NCAA basketball tournament brings in an estimated $545 million a year, and college football is exponentially more popular than college basketball. The BCS brings in only $150 million a year, but it funnels most of it to the most powerful conferences. Government intervention would strip those conferences of their power. After that, given a choice between less money and more money, here's betting college presidents forget about their arguments against a playoff and opt for more money.

There is another solution, and it probably will work. Compromise. Offer a plus-one -- a four-team, bracketed playoff -- and offer to split the revenue 11 ways. Then the president could declare victory, and the relationship with the most powerful bowls would be preserved. That could very well result in what Hancock calls "bracket creep," but one man's creep is another man's market correction.


 
MLB Properties v. Upper Deck Trademark Infringement Suit

Maury Brown of the Biz of Baseball blog reports that Major League Baseball Properties, MLB's trademark licensing and enforcement entity, filed a trademark infringement suit yesterday against trading card manufacturer Upper Deck. The suit was filed in the United States District Court for the Southern District of New York, and alleges that two new sets of trading cards produced by Upper Deck – the Ultimate Collection and Signature Stars sets – improperly use MLB trademarks without permission.

The issue arises out of MLB's decision last summer to name Topps as its exclusive licensee for official MLB sanctioned trading cards. At the time, Upper Deck threatened to file an antitrust lawsuit against MLB, but in lieu of a suit the company apparently elected instead to produce two sets of cards without MLB logos or trademarks, but featuring photos of players in their official MLB uniforms. MLB Properties's suit alleges that this unauthorized depiction of official MLB uniforms constitutes trademark infringement.

For its part, Upper Deck maintains that MLB's position is without legal basis, citing a 1998 decision by the Southern District of New York refusing to grant MLB an injunction under similar circumstances -- a decision later vacated by agreement of the parties. See Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., 150 F.3d 149 (2d Cir. 1998).

It will be interesting to see if Upper Deck now elects to assert an antitrust counterclaim challenging MLB's decision to grant Topps an exclusive license. Such a claim would be similar to the exclusive license at issue in American Needle v. NFL, and might also raise interesting issues regarding the scope of MLB's historic antitrust exemption (although MLB Properties notably elected not to rely on the antitrust exemption in another recent trademark related antitrust suit, Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290 (2d Cir. 2008)).

Monday, February 01, 2010
 
Recap of UF Sports Law Symposium on Collective Bargaining Agreements in MLB, NBA, and NFL

Last Friday, I had a terrific time at the University of Florida Levin College of Law participating in the law school's sports law symposium, which was headlined by former MLBPA executive director Donald Fehr and which concerned the collective bargaining agreements of Major League Baseball, the National Basketball. I was joined by a number of contributors to Sports Law Blog and other persons in sports law. Darren Heitner, Adam Bregman, Christie Sanders, Lourdes Cortizo and other members of the UF Sports and Entertainment Law Society did an excellent job organizing the event, a video for which will be available in the near future.

In the meantime, Zak Kurtz of Sports Agent Blog has a terrific recap and analysis of the symposium. Zak details comments raised and positions taken during the panels and also in Mr. Fehr's keynote address. For those interested in the upcoming CBA discussions in baseball, the NBA, and NFL, Zak's article is a must read.