Sports Law Blog
All things legal relating
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Monday, September 27, 2010
The 4th Annual Tulane Law School National Baseball Arbitration Competition
I am pleased to announce that the 4th Annual Tulane Law School National Baseball Arbitration Competition will take place in New Orleans on February 10-11, 2011. The event is a great opportunity for students interested in sports law to compete in a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball.
In addition to the arbitration competition, this year’s event will feature a mini-symposium where a number of our “celebrity” guest arbitrators will discuss issues impacting Major League Baseball and the sports industry. The lineup of panelists/arbitrators includes (with more to come):
The competition will be capped at 24 teams, so students interested in competing should submit their registration form and entry fee as soon as possible.For more information, official rules, and registration materials, please visit the competition’s website.
See you in New Orleans!
Friday, September 24, 2010
Adding wildcards to make divisions meaningful?
It turns out I have even more company in my wildcard-makes-division-races meaningful crusade: Jayson Stark (and apparently Elias and SI's Tom Verducci). Stark, and everyone else, now recognize that when the two best teams play in the same division (Yanks-Rays this year) and both are guaranteed to make the play-offs, the incentive to win the division all but disappears, because the single benefit of home-field advantage is minimally important (Stark points out that the team without home-field advantage wins 50 % of post-season series).
The solution, according to Stark, Verducci, et al., is not to eliminate the wild card, but to add a second wild-card in each league. Now the two wild-cards play some type of play-off (he debates whether it should be a one-game winner-take-all or best-of-three and how it should be structured [Update: Tom Verducci insists it has to be a one-game playoff, not a series]) for the right to move on and play, presumably, the division winner with the best record. Now there is a genuine incentive to win the division--avoiding having to play anywhere from one to three additional games, perhaps without off-days and perhaps without a break between the wild-card series and the Division Series. And, according to Stark, people close to Bud Selig reportedly say he likes the idea.
I am not quite convinced, because it still devalues the division in non-close races. If a second-place team falls far enough behind the first-place team in its division, it turns its attention to teams in other divisions and just has to focus on staying ahead of the non-first-place teams in those divisions. So the "race" is between # 2 in the East and # 2 in the Central--although those teams will not play one another regularly in September, since the schedule is weighted towards intra-division games late in the season, for obvious reasons. Still, anything that gives a real incentive to finish first is a vast improvement.
On rewriting history
Phil Taylor has a piece in this week's Sports Illustrated (I cannot find it on-line) criticizing the NCAA's recent over-reliance on stripping teams and players of wins, records, and awards as punishment for rules violations. He derides the punishment as meaningless and ultimately ineffective symbolism. It is incoherent, because it asks us to disregard our own memories and experiences. We remember
Of course, the problem with this punishment is not that the written record conflicts with our memories. The problem is that the written record becomes our memories over time. As I argued previously, this is an attempt to create an "official" but not "true" or "accurate" historical record, knowing that when collective memories fade (or people die), the official record becomes the true record. One hundred years from now, everyone will "know" that
Yes, this is just sports. But as a matter of intellectual honesty and truth over the course of time, is the NCAA telling us that
Monday, September 20, 2010
Mascot Violence in Ohio: Vicarious Liability?
On Saturday, the nation's #2 ranked team, Ohio State University, and the non-ranked Ohio University played one another in a clear mismatch. Not surprisingly, Ohio State pummeled Ohio University, at least during the game (Ohio State won 43-7).
Ohio University, however, got some hits in before the game. That was when Ohio University's mascot, Bobcat, twice attacked Ohio State's University, Brutus Buckeye, including during a team prayer. Here's the video:
Ohio University has apologized to Ohio State for the incident and also fired the student who was dressed as Bobcat. The student has even been "banned from any further affiliation with Ohio University athletics."
Fair enough; it doesn't appear that anyone was hurt and I'm not sure what else Ohio University could do at this point.
But let's look backward and wonder what could have happened had the student playing Brutus Buckeye been hurt. While he was presumably protected somewhat by his mascot costume, I'm sure he could have been hurt, especially when sucker punched by the other mascot.
If the student was injured, it would seem that Ohio University could have been sued under a vicarious liability theory. After-all, why did Ohio University pick the attacking student to play the mascot? What kind of selection process was used -- were there tryouts, were they other candidates, were any qualifications considered? Also, has this particular student ever shown violent or reckless tendencies? Are there NCAA or individual conference rules or suggestions on selection of mascots, or is that process left entirely to schools? Should it be regulated? Should it be professionalized, like mascots are for pro teams, which hire persons to play mascots?
On the other hand, does a student playing a mascot--like the student dressed as Brutus Buckeye--assume certain risks of injury? But even if he or she does assume some risks, would getting attacked by a fellow mascot really be one of them?
One last point: where was stadium security? Should they have intervened?
Update: in the comments section, Tim and Nathaniel--both, admittedly, grads of Ohio University--point out that mascot fights are not exceptionally unusual so perhaps an assumption of risk defense on the part of their alma mater would have some merit.
Update 2: While none of these are necessarily on-point, we've blogged about mascot and tort issues before. For example, in December 2006, Rick wrote about a lawsuit filed against the New Orleans Saints because its mascot was allegedly negligent in crashing a golf cart into a fourth-string quarterback. In April 2008, Geoff wrote about the Chicago Bulls' mascot, Benny, possibly being negligent in how it high-fived fans. Last but not least (or maybe least), in March 2010, I wrote about the tort implications of flying hotdogs that originate with mascots.
New Sports Illustrated Column on Floyd Mayweather, Jr. Domestic Violence Charges
I have a new SI.com column on Floyd Mayweather Jr.--who earned $60 million last year in boxing winnings and endorsements--being charged with beating up his ex-girlfriend and threatening to beat up his kids if they called the police. Here are some excerpts:
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According to those authorities, Mayweather did much more than steal a phone during his argument with Harris. He also allegedly pulled her hair, threw her to the floor and threatened to kill her. Just as troubling, prosecutors claim that Mayweather warned his children, Koraun and Zion, that he would beat them if they called the police.
* * *To read the rest, click here
What Impact will Ed O'Bannon and Sam Keller claims have on NCAA?
Paul Ellias of the Associated Press tackles that question in a new article. He interviews Rick and me for the piece. Here are some excerpts:
Thursday, September 16, 2010
I have company in disliking the wildcard
In both 2009 and 2007, I criticized the baseball wild card, arguing that it eliminates close races among the top teams in the league, since both will end up in the post-season, in favor of close races among a lot of lesser teams. Turns out I am not alone in this view. Tom Scocca of Slate makes the same argument, pointing out that the intense back-and-forth between the Yankees and Rays (Rays currently 1/2-game up, following a recent Yankees slide) is nearly meaningless, since the loser makes the play-offs as the wild card.
Scocca does something cute here: He shows the would-have-been standings in the pre-1994 two-division set-up. The result: The Yankees and Rays in the AL East fighting for one play-off spot and separated by 1/2-game with 17 left to play and five teams in the NL West fighting for one spot and separated by three games. And both races would be truly do-or-die: Only one team in each division can make the post-season.
Scocca ultimately reaches the same conclusion as me: More teams (and their fans) get into the post-season, but at the loss of truly winner-take-all competition.
Wednesday, September 15, 2010
Marquette University Law School - Sports Law Conference
Marquette University Law School is hosting its annual conference on October 22, 2010. The title of the event is "The Increasing Regulation of Sports in a Declining Economy." I have attended in the past and highly recommend it. CLE credits are available. The conference website can be found here. Conference panelists include the following:
WAC v. Mountain West Conference
ESPN reported yesterday that the Western Athletic Conference has initiated a lawsuit against the Mountain West Conference, California State University-Fresno, and the University of Nevada. The lawsuit relates to this summer's announcement that the two schools were leaving the WAC to join the Mountain West. Fresno State and Nevada both seek to enter the Mountain West starting with the 2011-12 school year. Meanwhile, the WAC contends that the schools are contractually obligated to remain in their current conference until the start of the 2012-13 year.
Specifically, under the WAC's bylaws, schools are supposed to notify the conference by July 1st if they intend to depart the conference the following summer. Both Fresno State and Nevada announced their intended departure on August 18th, but have indicated they would nevertheless like to join their new conference beginning in July 2011. The WAC contends that it would be irreparably harmed if the schools were permitted to leave before July 2012. As stated by WAC Commission Karl Benson:
"We’ve declared pretty consistently that the football schedule for 2011 would be drastically challenging for the six remaining members if they lost two footballs games in the 2011 season less than a year away," Benson said Tuesday. "We also have obligations and contracts with our bowl partners that would be damaged without Fresno State and Nevada in the WAC in 2011. A contract with our television partner that would be affected. WAC basketball tournament implications, BCS implications, there’s a myriad of reasons why Fresno State and Nevada need to fulfill their obligations."Indeed, if Fresno State and Nevada are permitted to leave the conference in 2011, the remaining members of the WAC will likely have a difficult time replacing games against the two schools on their 2011 football schedules, given the current trend of scheduling non-conference college football games years in advance (as discussed in my forthcoming law review article).
The WAC filed the suit in Colorado state court, and ultimately asks that the court issue an injunction requiring the two schools to remain in the WAC through the 2011-12 school year. A copy of the complaint is available here.
Tuesday, September 14, 2010
Boston College Law Review Symposium on NCAA
I'm thrilled to be a panelist at Boston College Law Review's forthcoming symposium titled, "Legal Perspectives on the NCAA." Here is information on the symposium, which will be held on Friday, October 15:
Monday, September 13, 2010
Floyd Landis as Whistleblower?
As Mike noted in his SI column last spring, the Landis-Armstrong doping drama has some interesting legal consequences. Mike drew attention to "...the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement."
Last week, news leaked that Floyd Landis has filed a federal False Claims Act lawsuit. See the AP story, yahoo sports, and the Wall Street Journal.
Under the FCA, whistleblowers can bring "qui tam" actions in the name of the United States to recover monies paid out by the federal government based on false claims. Known as "Lincoln's Law," because of its origins in fraudulent defense contracting during the Civil War, the FCA has been a powerful tool for uncovering fraud and rewarding whistleblowers (known as "relators") for bringing original information to the government's attention. I argued for extension of the FCA model to financial fraud whistleblowers in a 2007 article, "Beyond Protection."
Under the statue, plaintiff whistleblowers can recover a portion -- up to 30% -- of the government's losses due to false claims. The statute also requires that the complaint be filed under seal with the court and delivered to the DOJ. The DOJ's Civil Division lawyers review the allegations and decide whether or not to pursue the case themselves; if they decline to intervene, the whistleblower can still bring the case on behalf of the government. But the fact that the complaint is under seal means that the defendant here, Lance Armstrong, the public and the media have yet to have access to the details of the allegations.
So at this point any analysis of the strength of the complaint is mere speculation (or character attack). Still, it seems like Landis will face some significant obstacles. For one, he will need to establish a false claim to the government -- that Armstrong made some false statement in a request for money. Here, presumably, we're talking about sponsorship money paid out to Armstrong's team by the US Postal Service. Landis will need to prove that, prior to getting the money, Armstrong made false statements regarding his alleged doping. If he made no such statements, or if the USPS funds weren't actually conditioned on any promise of being dope-free, then it would be hard to establish a false claim for payment.
More fundamentally, FCA relators only get paid if they are the "original source" of information not yet in the public domain. This may be the bigger challenge for Landis. What original information about Armstrong has he offered? Was the information he offered already in the hands of government investigators, or already in the public domain, before he supposedly brought it to the government's attention?
Will Donald Fehr take over the NHLPA?
It's been rumored for a few weeks that former MLBPA executive director Donald Fehr, 62, is set to become the next executive director of the NHLPA. The latest is that he will indeed become director. Over on his blog, baseball attorney Jay Reisinger wonders why is it taking so long:
To read the rest of this insightful piece, click here.
Sunday, September 12, 2010
Sports Justice by Roger Abrams
Our friend Roger Abrams, a professor and former dean of Northeastern University School of Law, has published a terrific book sure to be of interest to many readers on this blog: Sports Justice: the Law and the Business of Sports (University of New England Press, $35). Here's information on the book and endorsements from Harvard Business School Professor Stephen Greyser and me:
* * *
An accessible guide to sports law highlighting landmark cases and personalities
Americans, brought up playing or watching sports, absorb the notions of fair play not simply as integral themes of sportsmanship on the field, but also as values they try to carry into their everyday lives. In this accessible and fascinating look at law and sports, Roger I. Abrams shines the lights on the uniquely complex and important legal issues that face both amateur and professional athletes. From cases involving Title IX, transgendered athletes, rights of the disabled, violence on the playing field, individual and franchise free-agency, amateurism and college sports, and responsibility of leagues for the safety and lifelong health of injured players, Abrams weaves a profoundly moving and immediately relevant story of ever broadening access to, and expanding rights within, the field of sports. Abrams illuminates these legal cases through compelling storytelling and personal explorations of those involved, such as Jeremy Bloom, the world champion mogul skier who was barred from playing college football because he had modeled clothes for Tommy Hilfiger, and Casey Martin, Renee Richards, and the young gymnasts from Brown University who sought access to the sports they loved, but found that their quest to achieve justice required judicial intervention. There is also one non-athlete: Al Davis, the renegade owner of the Oakland–Los Angeles–Oakland Raiders, who beat the National Football League cartel using the antitrust laws in his effort to gain the respect he was always denied. Written for sports fans and legal scholars alike, this is an engrossing and surprising story of people battling for their careers and lives, and in the process changing the very nature of sports and society.
Americans, brought up playing or watching sports, absorb the notions of fair play not simply as integral themes of sportsmanship on the field, but also as values they try to carry into their everyday lives. In this accessible and fascinating look at law and sports, Roger I. Abrams shines the lights on the uniquely complex and important legal issues that face both amateur and professional athletes. From cases involving Title IX, transgendered athletes, rights of the disabled, violence on the playing field, individual and franchise free-agency, amateurism and college sports, and responsibility of leagues for the safety and lifelong health of injured players, Abrams weaves a profoundly moving and immediately relevant story of ever broadening access to, and expanding rights within, the field of sports.
Abrams illuminates these legal cases through compelling storytelling and personal explorations of those involved, such as Jeremy Bloom, the world champion mogul skier who was barred from playing college football because he had modeled clothes for Tommy Hilfiger, and Casey Martin, Renee Richards, and the young gymnasts from Brown University who sought access to the sports they loved, but found that their quest to achieve justice required judicial intervention. There is also one non-athlete: Al Davis, the renegade owner of the Oakland–Los Angeles–Oakland Raiders, who beat the National Football League cartel using the antitrust laws in his effort to gain the respect he was always denied.
Written for sports fans and legal scholars alike, this is an engrossing and surprising story of people battling for their careers and lives, and in the process changing the very nature of sports and society.
For more information on Sports Justice, click here.
Wednesday, September 08, 2010
The NBA and Weight Clauses: Derrick Caracter joins Glen "Big Baby" Davis as Weighted Players
Last year I wrote about Glen "Big Baby" Davis's weight clause with the Boston Celtics. Davis, who is in the middle of a 2-year, guaranteed $5 million contract, can earn an additional $500,000 each year if he avoids exceeding a certain weight (he earned it in his first season).
The Lakers are now using the same device with rookie Derrick Caracter, a power forward/center who was the Lakers second round pick (#58 overall) in the 2010 Draft and whose commitment to conditioning has been questioned in the past:
3 things about Caracter's weight clause stand out to me:
1) The high value of Caracter's weight clause relative to the guaranteed portion of his contract: Caracter can nearly double his salary if he avoids weighing too much. Talk about an incentive to stay in shape! Think about your income and the opportunity to nearly double it if you merely stay in shape. I doubt our country would have the obesity epidemic it currently suffers from if weight had such a direct impact on our earnings.
2) Unlike with Davis, whose contract is worth between $5 and $6 million depending on his weight, Caracter will not become a millionaire through his deal. To be sure, $250,000 is great money for 98% or 99% of the U.S. population--according to the 2005 census, only 1.5% of American households earn $250,000 or more per year--but he's far from being considered a "rich" pro athlete. I think it's also safe to assume that as a player who will have to fight to keep an NBA roster spot, his future income as a professional basketball player is uncertain and his endorsement potential is pretty low, if not 0, at this point. So the difference in Caracter earning $250,000 and $473,000 this year may be more meaningful for his life than the life difference for Davis--who is poised to have a fairly long NBA career--in earning $5 million, $5.5 million, or $6 million in 2009-10 and 2010-11.
3) Is weight an accurate measure for determining whether an NBA player is in good shape, when pro athletes with a lot of muscle may technically be "overweight"? As I note in my Wisconsin Law Review article on nutritional labeling, 43 out of the 50 baseball Red Sox and Cardinals players who played in the 2004 World Series were technically overweight. Some advocate using Body Mass Index (BMI) instead of weight, as it considers body fat. But NBA teams apparently view weight as an adequate measure.
Update: my thanks to Henry Abbott of ESPN and Mark Medina of the Los Angeles Times for discussing this post.
Update 2: An agent emails me some interesting thoughts that tie in the role of collective bargaining:
Setting aside the initial issue of whether an all-or-nothing weight clause is even fair, I agree that the use of weight as the deciding factor is less than ideal. What I find interesting is that BMI is probably not any better -- especially in the NBA, where players are far taller than average. Apparently the taller you are, the less accurate BMI becomes:Update 3: Jimmy Golen of the Associated Press offers some thoughtful comments:
I think the point is that, whether or not weight is the ideal metric for deciding players generally are in shape, you could certainly come up with an ideal weight, or a reasonable playing weight, for an individual that could be used to judge his conditioning. In other words, the team could be saying that Caracter is in better shape at 275 than whatever he weighed when he signed the deal, so they wanted to entice him to lose weight (or, theoretically, gain some).
Monday, September 06, 2010
Legal Aftermath of Brawl in Stands at US Open
We've seen plenty of fights in the stands of baseball, basketball, hockey, and football games, but people who attend tennis matches are often stereotyped as civil or "proper", at least while they are in the tennis stadium (e.g., patrons are expected to be quiet while the match is in play).
That stereotype didn't seem to hold up in the grandstands of Arthur Ashe Stadium (Flushing Meadows, New York) at the U.S. Open last Thursday night, when a male fan insisted on being able to say the "f" word because he paid for a ticket and because he had "a lot of money on the game", while a female fan told him to "shut up" and threatened to have him thrown out of the stadium because of his language, which she deemed inappropriate or abusive. He responded that he wasn't using the "f" word during the actual play, only after each play had ended. She
Here is a video of the argument and the fight, which starts at about 1:13 -- please note, the "f" word is used about 50 times in 2 minutes, so if you are offended by it, don't watch the video:
Here is the aftermath, courtesy of Robert Dougherty of Associated Content:
Eventually, the US Open fight ended with all three participants being led off in handcuffs. They were not actually arrested, but they were banned from attending any tennis matches in Flushing Meadows for three years.Here are a few thoughts of mine:
1) I wonder if the participants might eventually face criminal charges, given the rather compelling Youtube evidence suggesting they committed battery; their physical contact was clearly neither accidental nor necessary and it probably endangered the safety of people seated around them. The video of the fight was not, from what I can tell, immediately available to police -- if the police had the video at the time they detained the participants, the participants probably would have been arrested.
2) I wonder about how crowd control measures during tennis matches differ from those taken to monitor the crowds of other sporting events. Along those lines, could the U.S. Open end up a party to civil litigation for arguably not providing adequate safety? Why didn't security officers show up? How physically close were they? How close should they have been?
3) Not to "blame the victim" and hindsight is of course 20/20, but instead of confronting this belligerent guy, might the female fan and her father, and probably others around them, have been better off alerting stadium security? Getting in his face, and
4) If he was truthful in claiming that he was not swearing during the actual play, but only between plays, was he necessarily breaking any stadium rules? Does the volume of his swearing matter?
Wednesday, September 01, 2010
Possible Collusion and the 85 Percent Rule: Are NFL Teams trading and cutting rookies to avoid paying into collectively-bargained pool?
The National Football League Players' Association is reportedly looking into whether teams are trading rookie players who would be cut in order to avoid cutting them themselves and having to pay 85% of the player's salary. If they are doing that, they could be deemed to be colluding, which generally means two or more teams acting in a way to deprive players of collectively-bargained rights. The NFL-NFLPA collective bargaining agreement contains anti-collusive language under Article XXVIII. Here's more on the allegation:
The Impact of Tiger Woods Scandal on Morals Clauses in Endorsement Contracts
John Gibeaut of the American Bar Association Journal examines how the scandal involving Tiger Woods and infidelity will impact the use and enforcement of morals clauses in endorsement contracts. Below are excerpts from his piece, which includes comments from Peter Carfagna, Brian Socolow, and me, as well as from Porcher Taylor III and Fernando Pinguelo, both of whom recently authored the excellent article The Reverse-Morals Clause: The Unique Way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals, Cardozo School of Law's Arts & Entertainment Law Journal (2010).
To read the rest of this extensive article, click here. This topic was the subject of a symposium at Cardozo Law School in March titled The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses.
"Let ‘em Play"
Professor Mitchell N. Berman of the University of Texas School of Law has posted a new essay that may be of interest to some readers. ‘Let ‘em Play’: A Study in Sports and Law considers the potential arguments regarding whether officials should call infractions less strictly during the end of a close match than throughout the rest of the game.
The abstract for the essay is below:
If you'd like to read the essay in its entirety, it is available to be downloaded here.