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Monday, November 29, 2010
Should Bud Selig be Fired? *(by Marquette Law School)*
At the Adjunct Professor Blog, Mitchell Rubenstein (St. John's) rebukes the Marquette School of Law for retaining MLB Commissioner Selig as an Adjunct Professor. The Marquette press release is here. Prof. Rubenstein writes:
I think this is a total disgrace to law professors and am disappointed in Marquette Law School. No doubt Mr. Selig is an accomplished professional and no doubt that he can be an asset to any school by an occasional lecture about some of his experiences. But it is quite another thing to teach a class to students learning to be lawyers and to evaluate students, i.e., grade them. Law school is not business school and I am sorry to say that this appears to be a publicity stunt by Marquette Law School.The position of an adjunct professor is certainly the most precarious at most law schools (other than that of the dean), so some angst at this hire is understandable. Adjunct professors -- practicing lawyers, typically, who join the faculty to teach one class (or two) -- serve at the pleasure of the Associate Dean for Academic Affairs, without the security of tenure or a long-term contract. They are relatively poorly compensated (rarely, I would guess, earning their hourly billing rate for time spent), yet engage in heavy-lifting activities like writing exams and grading student papers. Yet because they also have full time jobs in practice, they miss out on many of the speakers, workshops, and other activities that add to the joy of law teaching. To the extent that Prof. Rubenstein's blog speaks for adjuncts, his chagrin at any reduction in the qualifications for such teachers is possible to understand.
Yet the degree of criticism here seems extreme. First, to the extent that the critique is based on Selig's lack of qualification to grade students, it seems that he will be co-teaching a class with full-time Professor Matt Mitten. My guess is that Prof. Mitten, certainly qualified to do so, will be doing most (if not all) of the actual grading in the course.
Prof. Rubenstein also objects to a non-lawyer teaching legal classes. My personal view on this is that diversity in instruction is beneficial to all kinds of students, including law students. While bar exam courses should probably be taught only by faculty with legal experience and education, upper level electives like Sports Law may give students a better educational experience if those with real industry experience are involved. Selig has supervised labor negotiations, imposed discipline under a CBA, and no doubt hired hundreds of thousands of dollars worth of legal services. Would there be any objection to an accountant teaching a class on accounting to JD students? Or an M.D. teaching a class on medicine for lawyers? In my view students can learn a lot from someone who has hired lawyers.
Saturday, November 27, 2010
More on Cameron Newton
Isaac Newton’s Law of Gravitation holds that every massive particle of the universe attracts every other massive particle. To state it another way, or according to Cam Newton (no relation), “When God be blessin’, the devil be messin’.”
For perhaps the most gifted quarterback to come out of the NFL farm system in a decade, both of these principles mean that success breeds a flurry of rumor mongerers, two-bit accusers looking for their five minutes of fame, and former coaches with axes to grind all intent on bringing down the latest star in the mythically pristine world of college athletics. And one other unlikely culprit: the vaunted New York Times.
It was the Times that first published the attack piece on Maurice Clarett in the off season after Clarett helped Ohio State win the National Championship. It was this article that snowballed into the NCAA investigation, culminating in Clarett’s suspension from Buckeyes football, his need to try to enter the NFL early, and his ultimate downfall. In that article, the Times was outraged that freshman Clarett was allowed to retake a midterm when his African American history professor insisted that he do more than skate through classes without learning the material.
Six months ago, the Times wrote no less than three major articles exploring whether Kentucky basketballer and first round draft pick Eric Bledsoe had really deserved a good grade in his Birmingham, Alabama high school Algebra II class. This article also prompted an NCAA investigation as well as one conducted and paid for by the Birmingham School Board, both of which cleared Bledsoe of any shenanigans.
Now the New York Times claims “credit,” along with ESPN, for “breaking” the Cam Newton story in which, so far, no one has proven anything resembling the alleged impropriety had actually happened. Indeed, the Times has already been taken to task for reporting that one of the key whistleblowers in the case had talked to one of the accused principals when at least one of the parties now denies that took place.
I don’t know what happened to cause Newton, Cam not Isaac, to attend Auburn as opposed to Mississippi State. I do know the story reported by the Times makes no logical sense though I recognize people sometimes act illogically against their best interests. Mainly, I am troubled by an institution like the New York Times spending its resources and energy in trying to out college athletes, kids really, toiling in a system we all know to be the pinnacle of hypocrisy.
Friday, November 26, 2010
Sins Of The Father
The sports-law world may be about to undergo a debate of biblical proportions.
Auburn, the number two team in the land and, Cameron Newton, its Heisman leading quarterback are, as most of you know, the subjects of investigations both within and outside the NCAA. Cameron Newton’s father, a pastor at Newton, Georgia’s The Holy Zion Center of Deliverance, is accused of possibly conspiring with a former Mississippi State football player to solicit a $180,000 payoff in exchange for delivering his son unto the Mississippi State football program. Pastor Newton, whose congregation supposedly was in desperate need of funds to refurbish its time-worn church, denies the charges as does a former football player. No one suggests either Auburn or Cam Newton knew anything about these alleged acts, even if they prove to be true.
Current NCAA Commandments hold such conduct to be mortal sins justifying excommunication or worse for everyone involved.
The question is an old one: should the sins of the father be held against the son. The bible itself is split on the issue. Exodus 20:5 speaks of “a jealous God, punishing the children for sin of the fathers . . .” Three books later, at Deuteronomy 24:16, we learn: “Fathers shall not be put to death for their children, nor children for their fathers.”
What shall it be then? Even if the allegations prove true, and those who know Pastor Newton say he is a good man who would never participate in such unholy activities, do we punish the gifted son, if he was indeed an innocent, for the acts of the wayward dad? I think not. We should listen to the Prophet Ezekiel at 18:20: “The son will not bear the punishment for the father’s iniquity.”
Wednesday, November 24, 2010
Cheering speech, again
The Cavs, the NBA, and the Cleveland Police Department are taking steps in preparation for LeBron James' return to Cleveland on December 2. These include trying to limit the anti-LeBron messages fans chant, wear, and display:
The team has done research on the various crude and offensive James T-shirts in circulation locally, and officials will be stationed at entrances to make sure no fans enter with such shirts or signs that disrespect James or his family members. They'll also be in the stands, authorized to take away inappropriate apparel. Fans who have such shirts will be required to remove them and then will be given a Cavaliers-branded T-shirt to wear instead. All inappropriate signs also will be confiscated and officials will be on the lookout throughout the game for inebriated fans or fans who are preparing to throw things onto the court.
Note the imprecision in this all--is it about profanity and decency or is it about disrespect (and what constitutes disrespect for James and his family? What makes something "inappropriate"? Why shouldn't fans have some leeway to harshly criticize a person they see as a traitor to the city? I am not sure who owns/operates the Cavs' arena, so this may be a moot point as far as the First Amendment is concerned. But I will be interested in hearing how this plays out.
Sunday, November 21, 2010
Sportsmanship, ethics, and cheating
I generally do not care for the work of Selena Roberts (formerly of The Times, now of Sports Illustrated). She was one of the worst of the Mike Nifong apologists during the Duke lacrosse case and she pushed the "maybe-they-didn't-commit-rape-but-it-doesn't-matter-because-they-hired-a-stripper-so-they-deserved-what-happened-to-them" line even after. Her SI columns see few shades of gray in the world.
Her latest morality play comes from Connecticut high school football. The coach at Southington High got hold of the opposing team's coded play list, which had fallen off a player's armband during first half. The coach used the play list (how many times seems to be in dispute) during the second half to alert his players to what the opposing team was going to run. Southington won 28-14 (the game had been tied at the half). The coach is D.J. Hernandez, a former UConn captain and the brother of Aaron, who plays tight end for the New England Patriots. Hernandez was suspended for one game. The Connecticut Interscholastic Athletic Conference is reviewing the case. Roberts insists that a forfeit is required. And she takes a parting shot at one CIAC member, who is quoted as saying "It's what we call ethics between coaches and good sportsmanship; I don't believe it's cheating per se."
But did Hernandez cheat? First, I am not sure how much of a role it really plays. Teams often know what the other team is going to run or what their plays are--sometimes through good scouting and game preparation, sometimes because of movement between coaching staffs. Recall the Bucs players claims that they knew exactly what the Raiders were going to run during Super Bowl XXXVII--Tampa coach Jon Gruden previously had coached the Raiders. And, of course, "stealing signs" is part of baseball. This is not precisely the same, obviously. But the "advantage" Hernandez's team gained (knowing what plays were being called) is one that often is sought and gained within the rules of the game.
Cheating to me implies breaking rules. In the absence of a prohibition on using the other team's found play list, this does not seem like cheating. Yes, it is bad sportsmanship and probably unethical--not the kind of behavior we would like coaches to engage in. Roberts compares this to NBA players flopping on charges, or Derek Jeter pretending to be hit by a pitch, or Reggie Bush pushing Matt Leinert across the goal line--all of which Roberts sees as examples of society's (and sport's) moral decline. Actually, I find what Hernandez did worse than any of these, as a matter of sportsmanship. Not sure why--maybe because players cannot get away with any of that if the officials are doing a decent job of calling games in the moment. Hernandez was not going to be caught at this by an official on the ground. So, Roberts is right that we should hope for better from coaches, especially at the high school level. And we could have fun with this question in a game of Scruples. On the other hand, this is far from the greatest ethical/sportsmanship breach in history.
But Roberts wants Southington to forfeit its win, a punishment that seems excessive, because it suggests a level of wrongdoing that, absent a clear prohibition on the conduct at issue, is not present here.
Friday, November 19, 2010
"Law and Economics" - Sports Edition
The Southern Economic Association ("SEA") annual conference starts tomorrow in Atlanta. Of the 100+ sessions being held during the three day event, four sessions are devoted to sports. In the course of preparing for my own presentation, I perused the other sports-related papers and was struck by the relatively large number with legal overtones. Legal and quasi-legal topics to be examined using an economic lens include: (i) gambling; (ii) Title IX; (iii) minimum age rules; (iv) crime; and (v) referee-decision making. Such prevalence evidences the strength of both disciplines (law and economics) when analyzing important sports issues. Several papers being presented at the SEA conference are available for download now on SSRN.
Thursday, November 18, 2010
My new Boston College Law Review Article on the BCS and Postseason College Football
I just posted on SSRN a free copy of my forthcoming article in the Boston College Law Review titled, "Antitrust, Governance, and Postseason College Football." Here is the abstract:
This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.Hope you have a chance to check it out. For another take on this topic, be sure to read Nathaniel Grow's excellent forthcoming article in the Harvard Journal of Sports and Entertainment Law titled "Antitrust and the Bowl Championship Series."
Wednesday, November 17, 2010
A New Perspective on the NBA Age Rule
In the course of updating my research file and wrapping up a statistical sequel to my 2008 paper about the NBA age rule, I came across a new law review article in the St. John's Law Review by Susan McAleavey. In the article, McAleavey introduces an "alternative" to the NBA current rule - a spendthrift trust system. It has been over a decade since I took Wills, Trusts, and Estates as a 2L, so I had to dust off my Black's Law Dictionary and refresh my memory about the special characteristics of spendthrift trusts. Such trusts are defined as follows:
A trust that prohibits the beneficiary's interest from being assigned and also prevents a creditor from attaching that interest.
McAleavey has a multi-pronged argument supporting her position. I recommend reading her work, especially Section III of the article, which is novel and clever. I plan on citing her article moving forward.
There is a lot of academic research on the topic of minimum age rules in sports (links to several such articles here). The issue will be one of several hot-button topics negotiated by the NBA and NBPA in their upcoming collective bargaining sessions.
For micro-updates on the legality and efficacy of age eligibility rules in sports over the course of the next few months as I work on several papers in this research line, feel free to follow me on Twitter at (@sportslawprof). I am presenting a quantitative analysis of the WTA age rule at the Southern Economic Association conference this weekend in Atlanta and look forward to feedback and constructive criticism as the paper is vetted.
Saturday, November 13, 2010
Reverse Engineering a Doping Allegation
In a wide-ranging interview last week, recently retired tennis pro Christophe Rochus made a number of statements about doping. Such commentary is nothing new. Athletes and others affiliated with sports often make vague, generalized statements about doping without implicating anyone specific. In rare cases, athletes such as Jose Canseco and Floyd Landis actually name names. In an op-ed that was published in the Los Angeles Times, Michael Shermer explains the "game theory" reasons for such specificity.
Rochus's allegation falls somewhere in between the two extremes. In relevant part below, here is what Rochus said:
"I remember a match against a guy whose name I will not say. I won the first set 6-1, very easily. He went to the bathroom and came back metamorphisised. He led 5-3 in the second set and when I came back to 5-5...his nose began bleeding. I told myself it was all very strange."
Rochus makes a point of not naming names, but his insinuation is detailed enough to allow one to attempt to "reverse engineer" his statement and pinpoint specific matches (and opponents) that meet his parameters. Interestingly, Rochus doesn't state whether he eventually won or lost the match in question. In addition, he doesn't state whether the match was two, three, four, or five sets long (Grand Slam tournaments and Davis Cup matches use a "best of five" format while all other pro-level tournaments use a "best of three" format). Nevertheless, a perusal of his playing record from 1993 to 2010 reveals 11 matches that possibly match his description. Of the 11 matches, he won seven and lost four. All four losses took place in the past three years. However, publicly-available online match records do not include details on the sequence of individual games within each set, making it impossible to pinpoint the match(es) in which Rochus was trailing 3-5 in the second set before recoving to 5-5. As such, this attempt at reverse engineering Rochus's statement failed to result in anything definitive. However, with tennis and a majority of other sports spending a lot of resources on their anti-doping efforts, such methodology could be helpful the next time someone makes a "partial" allegation pertaining to drug use and doping authorities proceed to conduct a due diligence follow-up in an attempt to find some actual evidence in support of the claim.
Friday, November 12, 2010
3 K's for Kickbacks: White Sox are Latest Team with Troubles in Latin America
In another chapter in MLB’s simmering baseball kickback scandal, a Federal grand jury has indicted a former Chicago White Sox executive and two team scouts on charges that they took kickbacks totaling approximately $400,000 from signing bonuses and contract buyouts paid to secure 23 prospective players between December 2004 and February 2008. A seven-count indictment returned at the United States District Court in Chicago alleges that the White Sox baseball team was defrauded of money, as well as the honest services of the Defendants, who allegedly concealed the kickbacks from the team and its more senior officials.
This scandal first became public after White Sox executive David Wilder was discovered returning from the Dominican Republic in March 2008 with $40,000 in cash.
The facts, according to the indictment:
David Wilder was the White Sox farm system director from 2003 to 2006 and Director of Player Personnel until May 2008. He was responsible for overseeing the Sox scouts in Latin America, including Co-Defendants Jorge Oquendo Rivera and Victor Mateo. Rivera served as Latin American Scout and was directly responsible for overseeing Mateo.
The White Sox authorized scouts to conduct preliminary negotiations, and Wilder was authorized to permit a player’s signing if the payment was under $100,000. If it was more, he obtained authorization from the White Sox GM Kenny Williams. After the signings, MLB conducted background checks, a written contract was sent, and checks were drawn from the White Sox’s bank in Chicago. Checks were paid to the player (if Dominican) or to a Mexican team if the signing involved a contract purchase.
The Defendants’ written contracts with the team required them to serve “diligently and faithfully” and to provide services with “diligence and fidelity.” The White Sox relied on Defendants to recommend/approve recommendation of signings that were (i) commensurate with the player’s skill level; (ii) in an amount that was no greater than necessary to induce a player to sign with the team or to induce a Mexican team to release the player; and (iii) not artificially inflated by inclusion of kickback payments.
The Defendants allegedly misrepresented the amount necessary to sign certain players and omitted material information about the payments which caused the White Sox to pay artificially inflated signing bonuses and artificially inflated prices for players’ contract rights. Rivera and Mateo allegedly scouted players that they knew they could secure kickbacks from, and Rivera sought players already affiliated with Mexican teams. Rivera and Mateo directly and indirectly informed Wilder as to whether kickbacks could be obtained.
This indictment could be part of a much more expansive scheme of fraud with regard to MLB scouts in Latin America. Statistics provided by MLB show that signing bonuses of Latino players have gone up drastically in the last decade. The average signing bonus was approximately $29,000 in 2004, but had risen over $100,000 by 2008. ESPN’s Outside the Lines conducted a report in September of 2008 that described a “lawlessness” to baseball in the Dominican Republic. MLB claimed in the report that it was unaware of the problem of skimming.
The “White Sox Three” may be the first to be charged, but there are others, even bigger fish, that could face similar charges.
Jim Bowden, erstwhile GM of the Washington Nationals, stepped down in March 2009 amidst baseball’s investigation of his alleged skimming activity going as far back as his days as Reds GM in 1994. Bowden has denied any involvement. In August of 2008, the Yankees fired Carlos Rios, their director of Latin American scouting, and Ramon Valdivia, their Dominican Republic scouting director, for their alleged involvement in a kickback scheme. This came after the Boston Red Sox fired one of their own Dominican scouts, Pablo Lantigua, as a result of his alleged acceptance of a gift from a talent hunter, or a “buscone” who represented a Sox prospect that the team had signed. As this article details, the problem is not just a matter of MLB supervision, but also the fact that the system of buscones in the Dominican in deeply ingrained and is tied to the country’s crushing poverty.
Worth noting is the fact that the White Sox scandal was the first to break back in May 2008. It will be interesting to see whether this initial indictment is a prelude to further charges in Boston, New York or D.C.
At a time when MLB is still dealing with the lingering effects of the steroid era, this scandal is certainly unwelcome, but far from reaching a crisis level. The MLB-initiated investigation, carried out by the FBI and culminating in this week’s charges, demonstrates the League’s commitment to rooting out this problem. While the situation in the Dominican likely won’t change any time soon, the League and team officials can keep this type of scandal from escalating by more vigilantly monitoring how their scouts interact with players and player representatives.
The scandal has further elicited discussion about subjecting international players to MLB’s June draft for U.S. and Canadian players. Under the current system, the only restriction on a team’s acquisition of international players is that they be signed after their seventeenth birthday. But as Rick Karcher point out in this space a short while back, implementation of a draft would have to be collectively bargained and even then, the effect it could have on the entire player acquisition process is unclear.
Hat tip to law clerks, Luke LeSaffre and Brian Konkel, for their excellent work on this piece.
Update 11/20/10: White Sox scout, Rivera, entered a not guilty plea at his arraignment yesterday. His Co-Defendants, Wilder and Mateo, will be arraigned next month.
Wednesday, November 10, 2010
Are NBA fines tax deductible? Lamar Odom takes on the IRS
From William Barrett of Forbes:
Lamar Odom has sued the Internal Revenue Service, which said he couldn’t take tax deductions for $12,000 in sports fines and another $178,000 spent getting himself in shape.
Monday, November 08, 2010
Top Five Sports Lawsuits
Shaun Assael of ESPN has a good article (subscription required) highlighting "five lawsuits that will change sports." Sports Law Blog's Mike McCann and Gabe Feldman are both quoted. The article also has links to actual court documents in each case. Recommended reading!
Thursday, November 04, 2010
U.S. Department of Justice Weighing Antitrust Suit Against the BCS
The Salt Lake Tribune is reporting that Utah Attorney General Mark Shurtleff, a long-time critic of the Bowl Championship Series, met yesterday with officials from the U.S. Department of Justice regarding a potential antitrust suit against the BCS. Following the meeting, Shurtleff said he was "blown away" by the government's due diligence on the issue, and found it hard to imagine a scenario where either the state or federal government did not file suit against the BCS. He noted however that he believed the DOJ would be best positioned to challenge the BCS in court, not only due to the likely cost of such a suit, but "because AGs from around the nation often represent the major universities in their states and it is the college presidents who make up the BCS."
For more on Shurtleff's meeting with the Justice Department, click here. For more on the strength of potential antitrust claims against the BCS, please see my forthcoming law review article.
Wednesday, November 03, 2010
New York Law School Second Annual Sports Law Symposium
I look forward to being a part of next week's sports law symposium at New York Law School. Here are the details (and outstanding work by 3L Alycia Huckabey, the founder and president of the New York Law School Sports Law Society, in putting this event together):
The New York Law School Institute for Information Law and Policy and the
New York Law School Sports Law Society proudly present:
The Second Annual Sports Law Symposium
Date: Friday, November 12, 2010
Location: New York Law School, 185 West Broadway, Events Center, 2nd Floor
CLE Credits: 1 CLE credit per panel (no charge). Available to transitional and experienced attorneys.
1:15 p.m. – 2:15 p.m. – Hot Topics in Sports
Moderator: Mark Conrad – Associate Professor, Law and Ethics, School of Business, Fordham University and New York Law School Adjunct Professor
Lisa Stancati – Assistant General Counsel, ESPN
Chris Park – Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball
Andrew Bondarowicz – President, Aregatta Group, Inc.
2:30 p.m.–3:30 p.m. - From American Needle to Age Limits to Dress Codes: Key Labor and Antitrust Issues in the NBA and NFL
Moderator: Michael McCann – Sports Illustrated Legal Analyst, Professor of Law, Vermont Law School
Mike Zarren - Assistant General Manager and Associate Team Counsel, Boston Celtics
Marc Edelman – Assistant Professor of Law at Barry University’s Dwayne O. Andreas School of Law
Alan Milstein – Counsel, Sherman Silverstein
4:00 p.m.–5:15 p.m.- Breaking Into the Sports Industry
Moderator: David Soskin – Assistant Counsel, ESPN
Andrew Fine – Director of Marketing and Broadcasting, RLR Associates
Sarah Stuart – Senior Counsel, Reebok
Bobby Marks – Assistant General Manager, New Jersey Nets
Katherine Salisbury – President, Friedman & Salisbury Sports Management LLC
Andy Latack – Business Affairs Executive, CAA Sports
Networking Reception 5:15 p.m. -6:30 p.m.
Please RSVP by Friday, November 5, 2010 to firstname.lastname@example.org.
Video of Boston College Law Review Sympsoium on the NCAA at 100 Years
Video of the panels below can be found at this link.