Sports Law Blog
All things legal relating
to the sports world...
Saturday, October 30, 2010
Is Notre Dame Responsible for Student's Death?
I was interviewed by Maggie Gray of Sports Illustrated Video on Notre Dame student Declan Sullivan, a 20-year-old junior, dying in a tragic accident while filming an Irish football practice earlier this week.
Thursday, October 28, 2010
Antitrust Lawsuit Filed Against the NCAA
As noted by a commenter to an earlier post, a class action antitrust lawsuit was filed against the NCAA on Monday in United States District Court in San Francisco by former Rice University football player Joseph Agnew. Specifically, the suit alleges that NCAA rules prohibiting universities from offering guaranteed multi-year athletic scholarships, as well as rules limiting the number of scholarships a university can offer in a particular sport, violate federal antitrust law.
Agnew started at defensive back for the Owls as a freshman in 2006, before seeing reduced playing time as a sophomore due to shoulder and ankle injuries. Rice then elected not to renew his scholarship for either his junior or senior years. Agnew asserts that but for the NCAA rules, he would have received multi-year scholarship offers when he was recruited out of high school. The suit seeks to represent a class of athletes who, like Agnew, had their one-year scholarships reduced or non-renewed. In its defense, the NCAA immediately noted that one-year renewable scholarships are the norm in higher education not only for athletic scholarships, but also talent-based and academic scholarships in general.
Agnew's lawsuit comes on the heels of news this summer that the United States Justice Department was itself investigating potential antitrust concerns arising from the NCAA's prohibition of multi-year scholarships (previously discussed by Michael McCann here and here). Moreover, as ESPN.com notes, although courts have historically granted the NCAA some leniency when it comes to rules deemed necessary to preserve amateurism, the NCAA settled a case in 2008 brought by former student-athletes alleging that NCAA rules prohibiting colleges from offering to cover the full cost of attendance violated antitrust law.
One interesting tidbit reported by the New York Times is that Agnew is being represented by Steve Berman of the Hagens Berman Sobol Shapiro firm. Berman's firm also represents former Nebraska and Arizona State quarterback Sam Keller in his class action lawsuit against the NCAA and E.A. Sports, alleging that the two entities illegally use college athletes’ likenesses without their permission in video games.
An Update on the WAC v. Mountain West Lawsuit
Last month the Western Athletic Conference filed a lawsuit against the Mountain West Conference, Fresno State, and the University of Nevada, seeking to prevent the two schools from leaving the WAC to join the Mountain West until after the 2011-12 school year. The schools had stated an intent to join their new conference at the end of the current school year, a move that the WAC contended would have violated its conference bylaws, and would inflict significant damage on the remaining WAC schools.
It now appears that the sides have reached an amicable resolution to their dispute. According to reports, the WAC will announce today that it has reached an agreement with Fresno State and Nevada, under which the two schools will wait until the summer of 2012 to join the Mountain West Conference. In exchange, the WAC has reportedly agreed to accept reduced exit fees from the schools upon their departure, lowering the $5 million exit fee down to around $2 million per school.
Saturday, October 23, 2010
NY Times on the Sports Fans Coalition
Today's New York Times features a story on the Sports Fans Coalition, a nonprofit interest group in Washington D.C. formed for the purpose of organizing sports fans and representing their interests in public policy issues. Led by executive director Brian Frederick, the group has initially focused its attention on several issues affecting sports fans, including: "television blackouts (especially at taxpayer-funded stadiums), the Bowl Championship Series and the ballooning cost of attending games. Looming is the possibility of a lockout in the N.F.L. next year." For more on the Sports Fans Coalition, check out its website.
Thursday, October 21, 2010
More Antitrust and the BCS
In a recent interview with Salt Lake City's ABC affiliate KTVX, Utah Attorney General Mark Shurtleff announced that his office has completed a draft antitrust complaint to be filed against the Bowl Championship Series. The article indicates that the lawsuit would allege both illegal monopolization and price fixing claims against the BCS. Shurtleff stated that he will be meeting again shortly with antitrust officials in the U.S. Department of Justice, but maintains that he will file the suit alone if the DOJ elects not to pursue the matter. For more of Shurtleff's interview, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article.
Saturday, October 16, 2010
Agents recouping illegal payments?
People have been talking about this week's Sports Illustrated, featuring a confessional article by former NFL agent Josh Luchs, who admits to paying numerous college players over the years to induce them to sign with him.
One interesting tidbit: Luchs mentions that prior to 1999, the NFLPA had a rule that required a player who had taken money from an agent to repay that money; the rule was changed in 1999. Thus, Luchs says, agents formerly had "the threat of litigation" as an additional incentive for a player to retain that agent for the rookie contract; after 1999, that incentive was gone, making it more likely that an agent might pay college players and have nothing to show for it.
Here is my question (assuming Fuchs' version is accurate): On what legal theory was the agent able to sue that player? There is no contract, so it can't be breach of contract. Plus, any contract would seem to be void as against public policy (of not paying amateur athletes). Maybe unjust enrichment--the players have received (and retained) something to which they are not entitled? But does some idea of unclean hands kick in--the agent is claiming that the player was unjustly enriched by money the agent unlawfully gave him? Is the claim for a breach of NFLPA rules, made enforceable in court?
Does anyone know the details of this old regime? And does anyone know why the NFLPA changed the rule?
Friday, October 15, 2010
New Sports Illustrated Column on Tom Hicks post Liverpool Sale to Red Sox owner John Henry
Here's an excerpt from my new column published this evening:
The prospect of Hicks and Gillett pursuing a successful litigation strategy against RBS and NESV in Great Britain is dim. The London High Court unequivocally found nothing wrong in the RBS-NESV sale and in fact admonished Hicks and Gillett to accept it. While Hicks and Gillett profess a desire to return to the British courts, and while they might obtain new evidence that more favorably portrays their legal arguments, they would still have to overcome two adverse decisions from the London High Court. The odds would be stacked against them.
Pressure Mounts on the BCS
The legality of the Bowl Championship Series has been a frequent topic of discussion over the years at Sports Law Blog. Typically, legal criticism of the BCS has centered on whether the system violates federal antitrust law. However, a new line of legal attack was recently asserted against the BCS.
Specifically, last month PlayoffPAC, a political action committee formed in 2009 to advocate for the adoption of a playoff in college football, submitted a report to the Internal Revenue Service challenging the tax-exempt status of the Fiesta, Orange, and Sugar Bowls. The report effectively argues that the three BCS bowls should not be considered Section 501(c)(3) charities in light of the (allegedly) excessive compensation and benefits they give to their executives, as well as their various (and sometimes undisclosed) political lobbying efforts. BCS opponents in Congress have taken notice of the report, urging the IRS to review the allegations. In response, the Fiesta Bowl announced last week that it was undertaking an investigation to determine whether its employees were reimbursed for political donations, a potential felony.
Meanwhile, the BCS is also facing criticism on another front, as Yahoo! Sports columnists Dan Wetzel, Josh Peter, and Jeff Passan have taken aim at many of the common defenses asserted in support of the BCS in their new book Death to the BCS: The Definitive Case Against the Bowl Championship Series. Based on some of the initial reviews, the book is likely to be of interest to anyone following the BCS debate.
Thursday, October 14, 2010
New Sports Illustrated Column on Liverpool Sale and Tom Hicks
I have a new SI.com column on how the Red Sox ownership group is trying to buy Liverpool from a bank that loaned money to former Texas Rangers owners and Liverpool owner Tom Hicks. British and Texas courts have reached contradictory decisions on whether this sale should go through. Which country's courts should trump? Please read the column to find out.
Wednesday, October 13, 2010
New Sports Law Scholarship
Recently published scholarship includes:
Tuesday, October 12, 2010
Favre, Wrangler, and athletes behaving badly
Michael links to Darren Rovel's column yesterday arguing why Brett Favre's Wrangler ads are still running in the face of the current investigation into his behavior towards a Jets employee when he played for New York two years ago. I am not a Favre fan (and I am really not a fan of fawning media). I really don't care whether Wrangler drops him or not, nor would I be surprised if it doesn't drop him, since athletes have to really misbehave before sponsors begin bailing.
I want to push on the following point, where Rovell says: "But you don’t have evidence of adultery and no crime was committed." This, Rovell argues, distinguishes Favre from Kobe Bryant (charged with a crime) and Tiger Woods ("adultery to the hilt," in Rovell's words).
First, by dismissing what Favre allegedly did as "no crime," he overlooks the seriousness of these actions. Assuming Jenn Sterger was unwilling, this is flat-out sexual harassment. Which, while not criminal, is unlawful conduct and a breach of serious federal civil rights rules. Rovell makes the same mistake that I argue David Stern made in the wake of the Isaiah Thomas sexual-harassment verdict--simply writing-off all non-criminal misconduct as not serious and not worthy of league (or sponsor) action. But some social rules are enforced through criminal law and some through civil law; the use of the latter does not necessarily make that rule less important or the breach of that rule less problematic. In fact, I would argue that a player sexually harassing a team employee is more of a problem, and reflects worse on Favre, than getting into a bar fight or being drunk in public (both of which are crimes).
Second, let's be clear about the allegations against Favre. He allegedly propositioned a woman, begged her multiple times to come to his hotel room, and sent her (presumably unwanted) photos of his genitals. And it sounds like the only reason he did not have sex with Sterger is because Sterger was unwilling. I have to say, while technically not adultery, I probably would not still be married if I did that. And I doubt my wife would accept "oh, but there's no evidence of adultery" as an excuse. Rovell draws a line between adultery (Woods) and this non-adultery. But completing the act of cheating on your spouse is not dramatically worse (from a moral or "family man" standpoint) than attempting to cheat on your spouse and failing only because your target was unwilling. Mind you, I don't actually view adultery as an offense against society that warrants league/team punishment or sponsor abandonment. But if you believe that sponsors were justified in dropping Woods, the argument that Favre "never actually had sex with someone other than his wife" does not work as a justification for treating Favre differently (again, assuming the allegations are true).
Monday, October 11, 2010
Fallout for Brett Favre's Endorsement Deal with Wrangler
CNBC's Darren Rovell looks at how Wrangler, which has paid Brett Favre millions for his endorsement and for his appearances in a wide-range of All-American type ads, often with footballs and dogs and pick-up trucks, might respond to allegations indicating that Favre, who has been married for 14 years with two children, may have sent inappropriate messages and photos to another woman.
Here is Rovell:
* * *
I spoke to a couple people yesterday who were surprised that Brett Favre’s Wrangler jeans spots were still running. Surprised that he was still on their Web site. They were surprised that Wrangler had no comment.To read the rest, click here.
Quick legal point: Should Wrangler seek to get out of its endorsement contract with Favre, the wording of the morals clause in that contract will likely play a major factor. If it is expansively worded--such as covering all types of conduct that is publicly reprehensible, at least as deemed by Wrangler--that helps Wrangler; if it is narrowly worded--such as requiring that the Favre commit a crime--that helps to protect Favre.
Saturday, October 09, 2010
University of Baltimore School of Law Symposium "The Death of Amateurism: Implications for Sport and Health"
Professor Dionne Koller of the University of Baltimore School of Law passes along this announcement of what should be an engaging symposium titled "The Death of Amateurism: Implications for Sport and Health":
Thursday, Oct. 28 | 9:30 a.m. – 3 p.m.
In addition, the symposium is being co-sponsored by the University of Baltimore Law Review. Here is the following call for papers:
ASU College of Law’s Sports and Entertainment Law Journal Conference
Some news from Arizona State University College of Law about an upcoming sports law conference:
Friday, October 08, 2010
Everything Duke and lacrosse is not "Duke Lacrosse"
By now, everyone has heard about the "senior thesis" in "horizontal academics" that a 2010 Duke grad wrote as joke, a spoof thesis presentation describing the performance of thirteen Duke student-athletes (seven of them happened to be lacrosse players) with whom she had sex during her time in school. The New York Times got in on the story today, talking about embarrassed and weary the campus is over another scandal.
I have Duke lacrosse on the brain right now. So I was disappointed, although not surprised, that The Times mentioned the now-almost-five-year-old scandal involving false sexual-assault accusations against the lacrosse players. Much as I was not surprised that everyone talked about the Duke lacrosse scandal in covering the murder of Yeardley Love, a UVa lacrosse player, allegedly by her UVa lacrosse-player former boyfriend.
Will Duke lacrosse ever cease to be a reference point for salacious behavior (I cannot call this 'bad' behavior, because having consensual sex with a number of different people is not implicitly bad behavior and, frankly, neither is talking about it) involving Duke University and/or lacrosse? The seven lacrosse players mentioned in the "thesis" certainly did nothing close to bad or even inappropriate (I'm shocked, shocked, to find that male college students have consensual sex with women, often after an evening of drinking). Why would the paper even mention, in connection with them, an old scandal (none of the current players even were on campus in 2006) involving false accusations of criminal misconduct by a corrupt prosecutor and angry faculty? Even if you believe (as some do) that the lacrosse players five years ago were in the wrong for hiring a stripper, the current still situation still does not come close to that.
Wednesday, October 06, 2010
The McCourt/Divorce Saga: Was a Key Document Altered?
Over on M & A Law Prof Blog, Boston College Law Professor Brian Quinn takes a look at the divorce between Frank and Jamie McCourt and specifically how a document from six years ago -- three copies of which use the word "exclusive" in it; three use "inclusive" -- could impact whether Frank is the sole or joint owner:
What with clients sending you only signature pages, it becomes very tempting to make a quick little change in a document that no one will notice. They don't notice ... until they do ...
Monday, October 04, 2010
Changes in Free Agency, Tender/Non-tender, and Arbitration Deadlines
Last Thursday, Major League Baseball and the Major League Baseball Players Association reached an agreement to alter some of the deadlines regarding free agency, tender/non-tender, and arbitration for upcoming negotiations in 2010 and 2011. The agreement grew out of concerns raised by the Players Association about the 2008 and 2009 off-season negotiation periods. Barry Bloom reported on the changes in an article posted on MLB.com, and the Players Association distributed a press release.
Here are some of the changes as gleaned from those two sources:
1. Currently teams have a 15-day period after the end of the World Series to negotiate exclusively with their current players who are eligible for free agency. That period of exclusivity has been reduced to five days.
2. Contracts must now be offered by December 2. The deadline is now before the Winter Meetings instead of the older deadline that feel after the Winter Meetings.
3. Arbitration must now be offered to free agents by November 23 at midnight. This allows a team to maintain its rights to compensation if a player declines by the new November 30 deadline. If a player accepts arbitration, their salary is decided either by salary arbitration or continued negotiations with just that one team. For instance, last year the Twins offered arbitration to Carl Pavano, and he accepted. Pavano has been a key member of the Twins’ rotation this year.
4. Players who are eligible for free agency because they have six years of credited service no longer need to apply within a 15-day window. Instead, they will become free agents automatically at the conclusion of the World Series.
The agreement resolves a number of problems that were slated for the grievance and arbitration process that is part of the current Collective Bargaining Agreement. It also seems to signal a positive approach between the two sides prior to the December 11, 2011, expiration of the current CBA.
Sunday, October 03, 2010
More on choking
Following on Mike's post about the new book on the science of choking: Prof. Bielock was on Diane Rehm two weeks ago (my wife had told me about the show, but I had not gotten around to the podcast; my plan for this week). Also, the New Yorker covered similar ground in 2000 in a piece called "The Art of Failure" (abstract and registration required). That piece discussed the difference between "choking" and "panicking." The former is what happens when skilled, prepared people lose the ability to perform, in part because they start thinking (and overthinking) about otherwise learned steps. Panicking is what an unprepared or unskilled person does, often involving moving too quickly.
[Update]: I just read an excerpt from Bielock's book; she mentions to New Yorker piece (written, it turns out, by Malcolm Gladwell), but rejects the distinction between panicking and choking. She also offers a definition of choking:
Choking under pressure is poor performance that occurs in response to the perceived stress of a situation. Choking is not simply poor performance, however. Choking is suboptimal performance. It's when you—or an individual athlete, actor, musician, or student—perform worse than expected given what you are capable of doing, and worse than what you have done in the past. This less-than-optimal performance doesn't merely reflect a random fluctuation in skill level—we all have performance ups and downs. This choke occurs in response to a highly stressful situation.
I know Mike is a Sox fan, but I have to let Buckner off the hook as an all-time choke. That was an error. But Buckner was a bad fielder who could not walk and should not have been in the game at that point. The definition above further exonerates Buckner--I am not sure that error was so suboptimal for him. If anything, the bigger choke was by the Sox relievers in the eleven pitches leading up to Buckner's error.
Choking to me requires someone falling from heights and it typically is more than one single play. I would point to Jana Novotna's meltdown in the Wimbledon Women's Final in 1993 or Greg Norman at the 1996 Master's--on the verge of prevailing, their entire games fell apart over a series of plays.
The Science of Choking
Over on The Situationist, Drexel University law professor and good friend Adam Benforado discusses some of the science of choking and a new book out by University of Chicago psychology professor Sian Bielock on that topic.
What is the most infamous example of choking in sports?
I'd have to say it's Bill Buckner in Game 6 of the 1986 World Series between the Red Sox and Mets, when a routine ground ball hit by Mookie Wilson in the 11th inning went through Buckner's legs, leading the winning run to score (the Mets would go on to win Game 7).
The Buckner video can't be embedded in this post, but you can watch it here at MLB.com.
Saturday, October 02, 2010
New Article: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment
A terrific new article in the Cardozo Arts and Entertainment Law Journal has posted on SSRN: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment
The article is authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).
Here is the article's abstract:
In 2008 the National Collegiate Athletic Association (NCAA) launched its national advertising campaign titled “Going Pro in Something Other than Sports.” As a major strategic and branding initiative by the NCAA years in development, this effort seeks to emphasize the academic rather than athletic abilities of collegiate student-athletes. Humor captivates the audience yet it is the campaign’s tagline that the NCAA has “over 380,000 student-athletes and just about every one of them will turn professional in something other than sports” that resonates with the viewer. While this declaration is true, and the promotion’s purpose is clearly aimed at calling attention to the core purpose of the NCAA, thousands of student-athletes begin professional sports careers every year. Given the complexities of the amateur to professional transition process, coupled with the fact that student-athletes and their families are woefully unsophisticated and unprepared, colleges and universities have done shockingly little to assist student-athletes through this process.To download a free copy of the article, click here.