Sports Law Blog
All things legal relating
to the sports world...
Monday, February 28, 2011
DePaul's Friday Symposium on Compliance in Chicago
This Friday, the DePaul Journal of Sports Law and Contemporary Problems hosts "A Rule is a Rule: Compliance in the World of Sports." The presenters include Timothy Epstein, Marc Edelman, and myself. 2.75 hours of CLE is available for attorneys and a reduced rate admission is offered for law students from other area schools. Here's the event description:
The event is being held at the University Center (525 S. State), a few blocks south of DePaul's law school.
More Sports Law Links
As a follow-up to Mike's recent post with a number of sports law links, I wanted to provide a few more, as there have been a number of interesting developments in our field.
1. 60 Minutes ran a story on legendary Vegas-based sports gambler Billy Walters last month. The video clips provide a fascinating look into the world of high stakes "white collar" sports gambling.
2. Did Jose Canseco's admitted steroid use rub off on other MLB players? Eric Gould and Todd Kaplan analyze Canseco's "peer effects" in a forthcoming issue of Labour Economics.
3. Patrick Hruby of ESPN.com explains why lawyers "always get [the] last laugh in sports, as in life."
5. The conventional wisdom in sports gambling is that sports books try to set their poinspreads (sides) and totals (over/unders) as a conservative/guaranteed way to profit. Steve Levitt (co-author of Freakonomics) cast doubt on such strategy in an oft-cited 2004 paper published in The Economic Journal. Rodney Paul and Andy Weinbach provide empirical support for the "Levitt hypothesis" in a new article in Applied Economics Letters.
6. Was Congress complicit in connection with baseball's antitrust exemption? Neil Longley examines Senate voting patters in a forthcoming Applied Economics Letters piece.
Sunday, February 27, 2011
Sunday Sports Law Links
* Mark Cuban wonders why more superstar U.S. teenage basketball players don't go play professionally in Europe, where players can be as young as 14 and earn lucrative contracts. The NBA, as we know, requires that U.S. players be 19-years-old and one-year removed from high school before they are eligible to play.
The European route was clearly successful for Brandon Jennings, who played professionally in Italy for one-year before becoming eligible for the 2009 NBA draft. Jennings earned about $1.2 million in Italy between salary and endorsement income -- obviously more than he would have "earned" while playing as a freshman in college, assuming he had overcome his eligibility issues.
The international experience has been much less successful for 6'11 power forward Jeremy Tyler, however. Tyler skipped his senior year of high school and struggled playing professionally in Israel in 09-10. Then again, Tyler has been much more impressive this season while playing in Japan's pro basketball league--a league which has former NBA players in it, including Bruce Bowen and Jerold Honeycutt. Tyler is averaging an efficient 9 points, 6 rebounds and 14 minutes per game while drawing consistent praise from his coach. Tyler is eligible for this year's NBA draft -- his recent improvement in play, not to mention impressive size and athletic ability, probably will land him on an NBA roster next season.
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* Shira Springer of the Boston Globe has an excellent preview of this week's MIT Sloan Sports Analytics conference (hat tip to Warren Zola). I will be speaking at the conference on the Sports Labor Relations panel.
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* How would you like to study international sports law in Florence, Italy over the summer and get law school credit for it? The South Texas College of Law is sponsoring a study abroad program in Florence between June 3 and June 25 that will focus on two courses: international amateur sports law and international professional sports law. NFL agent/attorney and former NFL player Ralph Cindrich is one of the instructors, as is South Texas College of Law prof James Musselman. Sounds like an awesome experience to me.
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* Last year I wrote a guest column on Torts Prof Blog on the tort implications of "game presentation" -- the various things stadium operators do to keep fans interested during games, including on-court and on-field promotions -- in the context of Coomer v. Kansas City Royals, a lawsuit filed by a guy who while attending a Royals game was injured by a hot dog that had been propelled by the Royals Mascot as part of a promotion. A couple of weeks ago, the Royals lost a motion for summary judgment in the case. Carla Varriale of Athletic Business Network has the story on the Royals' inability to get rid of the case and what it means for game presentation.
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* I was interviewed on the Dennis and Callahan Show on WEEI Boston last week to talk about legal issues involving Barry Bonds, Roger Clemens, and DJ Henry (a Pace football player who was shot and killed by a police officer in a terrible misunderstanding of a situation). I also spoke with Drew Forresster of WNST Baltimore about Bonds, Clemens and the NFL labor crisis, and how NBA players might be in a better position than NFL players when it comes to being locked out: some NBA players, particularly the stars, will have opportunities to go play in Europe and earn considerable $$, while playing with and against legitimate talent (while European basketball may not be as "good" as the NBA, it's far better than the D League or some other minor league).
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* NBA Deputy commissioner Adam Silver claims that three-quarters of NBA teams are losing money, even though NBA television ratings are way up this season.
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* UConn men's basketball coach has been suspended by the NCAA for the first three games of next season. The Hartford Courant's Paul Doyle has the story and interviews, among others, Connecticut Sports Law's Dan Fitzgerald.
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* Do Male Athletes have Body-Image Problems? Admittedly, that's not a question I've thought much about, or maybe at all, but Libby Sander of The Chronicle of Higher Education explains why it's an interesting topic and why new research on the topic may shed light on behavior issues with male athletes.
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* Before the Red Sox offered 29-year-old outfielder Carl Crawford a 7-year, $142 million contract this past off season, they obviously did their due diligence on him. After-all, the contract is fully guaranteed and the financial commitment being made is enormous, especially for a player who will turn 30 this season and whose game is based to a large extent on his speed. As Gordon Edes of ESPN.boston points out, the Red Sox took due diligence to a such a point that it creeped out Crawford:
[Red Sox Assistant GM] Allard Baird, who oversees the club's pro scouting department, was assigned to scout Crawford for most of the second half of the 2010 season.Kind of reminds of me when the NBA "ordered its security forces" to more closely follow NBA players off-the-court.
Thursday, February 24, 2011
Peter Carfagna's Negotiating and Drafting Sports Venue Agreements
Our friend and colleague Peter Carfagna, who teaches sports law at Harvard Law School and has a long and storied career in the industry, has written his third sports law book: Negotiating and Drafting Sports Venue Agreements (West, 2011).
His two other sports law books -- Sports and the Law: Examining the Legal Evolution of American's Three 'Major Leagues" (West, 2009) and Representing the Professional Athlete (West, 2009) -- are also excellent.
Peter's new book provides outstanding insight on the drafting of sports venue agreements, including naming rights agreements, media rights contracts, food and beverage agreements, and sponsorship deals with state-operated entities. It also includes complete model agreements of these types of contracts. I very much enjoyed reading the book and will no doubt be referring to it.
Here's the official description of Negotiating and Drafting Sports Venue Agreements:
In addition to being an engaging teaching tool for instructors teaching drafting practices for sports venue agreements, this book is valuable to any sports law practitioner wanting to learn more about these state-of-the-art drafting practices. Beginning with the drafting of the seminal lease agreement, the book leads the reader through a series of best-practices drafting techniques for every major sports venue–related agreement, including naming rights agreements; presenting sponsorship agreements; media rights and concessions agreements; and agreements with state-operated entities. Hypothetical drafting exercises are included in each chapter for classroom use.
This week the University of Tennessee released the NCAA’s “Notice of Allegations” against its football and men’s basketball team, outlining eleven violations. Both current men’s basketball coach Bruce Pearl and former (albeit brief) football coach Lane Kiffin were cited for multiple violations. While many are predicting sanctions against the University of Tennessee, Bruce Pearl, and possibly the Director of Athletics Mike Hamilton, what is interesting is whether the NCAA will impose further sanctions on Lane Kiffin now that he is the head football coach at USC.
Historically, coaches have left town before the NCAA hammer comes down, often resulting in infractions on the school and players left behind but not on the coach himself—John Calipari anyone? However, on occasion the NCAA has imposed penalties on coaches themselves even if they are employed at a new school. In the NCAA’s Manual, Bylaw 19.5 gives the NCAA the right to impose penalties on either an institution or individual—with no restrictions on whether that individual is still at the institution at which they committed the infraction.
This has happened at least twice within the last decade. Specifically, Rick Neuheisel was punished in 2002 while at the University of Washington for violations he was deemed to have made at the University of Colorado. More recently, in 2008 Kelvin Sampson was punished while at Indiana University for conduct he engaged in while at the University of Oklahoma.
It will be interesting to follow whether or not the NCAA will impose some form of punishment on Lane Kiffin now that he is in charge of the football program at USC. If this does happen, does USC have a claim against Kiffin and/or the University of Tennessee?
Wednesday, February 23, 2011
Sports Law Career Opportunity
Tuesday, February 22, 2011
Circumventing MLB's Waiver Rules
As several media outlets are reporting, the Boston Red Sox included an unusual provision in their recent contract with left handed pitcher Andrew Miller (pictured), in an apparent, creative attempt to circumvent Major League Baseball's complex waiver rules. Specifically, the Red Sox signed Miller to a minor league deal for 2011, with a $3 million club option for the 2012 season. However, the contract stipulates that the $3 million option will immediately vest should Miller be claimed on waivers by another team.
Because Miller signed a minor league contract, the Red Sox can assign him to one of their minor league affiliates to begin the season (most likely their AAA team in Pawtucket). However, if Boston recalls Miller to the majors at some point this year, the Red Sox can only reassign him to the minor leagues if Miller first clears waivers, giving the other 29 MLB teams the chance to claim him for their own major league roster. By giving Miller a relatively expensive vesting option in the event that he is claimed on waivers, the Red Sox appear to hope that other clubs will be deterred from claiming Miller should he end up on the waiver wire.
While Miller's contract may not violate the letter of the MLB rules, it does appear to violate at least the spirit of the waiver system. MLB's waiver process serves two general purposes: first, the rules are intended to protect minor league players by providing them with an opportunity to play for another major league team should their current franchise fail to offer them a major league roster spot; second, the waiver system also helps to enhance competitive balance across the league by preventing major league teams from stockpiling young talent in their minor league systems.
As Dave Cameron over at FanGraphs notes, Miller's specific case does not seem to be at odds with the waiver system's first purpose, as Miller willingly signed off on the provision in order to increase his chances of remaining in the Red Sox's organization for the entire season. However, should this strategy catch on with other teams, it is possible that future minor league players will be coerced into signing similar contracts even though they would prefer to retain an unencumbered chance of being claimed on waivers by another team.
Moreover, Miller's contract appears to be inconsistent with the second purpose of the waiver system, as the Red Sox have created a disincentive for other teams to claim Miller off waivers, increasing the chances that Boston will maintain control over a player that they cannot presently use, but one who another team might need for the 2011 season.
Accordingly, I suspect that MLB will consider revising its rules in order to close this loophole in the future.
Monday, February 21, 2011
NFL Labor Negotiations: Are We Headed for the Doomsday Scenario?
I have a new column up over at the Huffington Post that takes a closer look at what might happen as we get closer to a lockout in the NFL. Here is an excerpt. You can find the full column here… And, if you are looking for a summary of the major work stoppages in pro sports history, you can click here…
It's all a guessing game at this point, but what is the likelihood of an extended work stoppage?
As we get closer to the expiration of the NFL Collective Bargaining Agreement, the great unanswered questions remain: Will there be a work stoppage? And, if so, how long will it last? It's anyone's guess as to when the two sides will reach an agreement (and everyone is guessing), but looking back at the past is often a good way to predict the future. And, a closer look at the "doomsday" work stoppages of the past -- where at least one regular season game was canceled -- reveals a fairly clear trend. Significant work stoppages occurred when one side was looking for a sea change--some radical transformation of the relationship between the parties. For example, in 1998-99, the NBA owners insisted on (and got) a cap on maximum player salaries. The owners locked out the players and 464 total games were canceled, including the NBA All-Star Game. In 1994-95, the MLB owner insisted on (and did not get) a salary cap. The players went on strike and 920 games were canceled, including the postseason and the World Series. In the best professional sports work stoppage movie of all time, the 2000 movie The Replacements (the Detroit News raved, "it's better than average"), professional football players went on strike late in the season, apparently because of "salary disputes" (it's not clear who got what, but Shane Falco did save the day).
And, most recently, in 2004-2005, the NHL owners insisted on (and got) a salary cap. The owners locked out the players and the entire season was cancelled, including the playoffs and the Stanley Cup. Other lengthy work stoppages were caused by fights regarding basic rights of free agency for the players. In each of these cases, one side claimed that the current system was broken (see the chart here for more details).
In the current negotiations, we're not dealing with fights over the creation of free agency or the implementation of a salary cap. The players have free agency and the owners have a cap. But, are the owners asking for a sea change? That's a difficult question. One could make an argument that the NFL's latest proposal for a rookie wage scale--which could actually impact a majority of NFL players--would represent something close to a sea change. But, despite the NFL's proposal, it's difficult for anyone to argue--even the owners--that the system is broken. The NHL owners were willing to cancel an entire season because they believed they lost less money by not playing games than by playing games. That is certainly not the situation facing the owners and their multi-billion dollar television deals.
So, if the past is any guide, we may not be looking at a major work stoppage for the NFL...
Saturday, February 19, 2011
Hunter Pence in the Final Arbitration Hearing of the Year
The Astros have won their past four arbitration hearings prior to Friday’s hearing with Hunter Pence. The Astros defeated Wandy Rodriguez last year and Mark Loretta and Jose Valverde in 2008. In 1997 they won against Darryl Kile. They last lost a hearing against Rick Wilkins in 1996. Both the Wilkins and Kile hearings were decided by arbitrator Morton Mitchnick back before all of the hearings were handled by three arbitrators.
With a midpoint between the two exchanged figures in the Pence case of $6,025,000 (Astros offered $5,150,000, and Pence requested $6,900,000), the difference is $1,750,000. The Astros were represented at the Pence hearing by David Gottfried (assistant general manager), Tal Smith (president of baseball operation), and Ed Wade (general manager). Smith has an impressive career representing management in hearings.
Margaret Brogan, Robert Herzog, and Fredric Horowitz will decide the case. Herzog was a panelist on all three hearings this year, and his career panel record is 2-1. Brogan has the most experience with ten, and she has a 5-4 record favoring the teams. Horowitz is 3-3.
With the gap this large and Smith’s track record, I am inclined to give the nod to the Astros again.
Here is a complete list of the Astros in arbitration according to my research -
Team Wins (8) - Bill Dawley (1986), Frank DiPino (1986), Bill Doran (1987), Darryl Kile (1997), Mark Loretta (2008), Al Osuna (1994), Wandy Rodriguez (2010), and Jose Valverde (2008).
Player Wins (6) - Joaquin Andujar (1980), Kevin Bass (1987), Glenn Davis (1989), Joe Sambito (1980), Denny Walling (1987), and Rick Wilkins (1996).
Friday, February 18, 2011
The 2011 MIT Sloan Sports Analytics Conference
The premier sports business and sports industry event each year is the MIT Sloan Sports Analytics Conference, which is held in the Boston Convention and Exhibition Center.
The event this year will be held on two days - March 4 and 5 -- and will feature such speakers as author Malcolm Gladwell, Mavericks owner Mark Cuban, Patriots CEO Jonathan Kraft, Maple Leafs President Brian Burke, and ESPN NBA analyst and former head coach Jeff Van Gundy, among many others. The lead organizers of the event are Houston Rockets GM (and former MIT Sloan professor) Daryl Morey and Krafts Sports Group VP of Customer Marketing and Strategy Jessica Gelman. There are many student organizers as well. They really put together a first rate event.
I'll be a panelist on the The Coming War: Sports Labor Relations panel. We'll be discussing the NFL and NBA labor crises. Here is more information on the panel:
For more information on the conference, click here.
Salary Arbitration Nearing the End for 2011
With the Hunter Pence-Astros hearing set for today, the last day for hearings, and the two recent multiyear deals signed by Rickie Weeks and Jose Bautista, the 2011 arbitration season is nearly over. Thirty-four teams and players exchanged figures according to my research. (See my earlier post regarding including Santiago Casilla). Thirty-one settled with their teams and avoided hearings. I already posted a discussion of the other two hearings involving Ross Ohlendorf of the Pirates (he won) and Jered Weaver of the Angels (he lost). The thirty-one settlements before hearings are the fewest since 2004 when there were twenty. According to my research, there were nine multiyear deals, seven settlements above the midpoint, four settlements at the midpoint, and eleven settlements below the midpoint. Here is my list of players in each category:
Multiyear deals (9) - Jose Bautista (Blue Jays), Billy Butler (Royals), Johnny Cueto (Reds), R. A. Dickey (Mets), Josh Hamilton (Rangers), Jason Hammel (Rockies), Carlos Marmol (Cubs), Wandy Rodriguez (Astros), and Rickie Weeks (Brewers)
Above the midpoint (7) - Craig Breslow (A’s), Jason Frasor (Blue Jays), Kelly Johnson (Diamondbacks), Miguel Montero (Diamondbacks), Mike Napoli (Rangers), Darren O’Day (Rangers), and Luke Scott (Orioles)
At the midpoint (4) - Jeremy Guthrie (Orioles), Francisco Liriano (Twins), Kevin Slowey (Twins), and Andres Torres (Giants)
Below the midpoint (11) - Santiago Casilla (Giants), Frank Francisco (Rangers), Hong-Chih Kuo (Dodgers), Kameron Loe (Brewers), James Loney (Dodgers), Javier Lopez (Giants), Shaun Marcum (Brewers), Angel Pagan (Mets), Ian Stewart (Rockies), Edison Volquez (Reds), and Delmon Young (Twins)
I will post something more about the Pence hearing.
Thursday, February 17, 2011
What to do about accused athletes
FIU has decided to allow Garrett Wittels, its star baseball player who enters this season riding a 56-game hitting streak (three shy of breaking the college record), to play to start the season, despite Wittels facing sexual assault allegations in the Bahamas. The next hearing in the case is not until April 18 and, citing the presumption of innocence, the university decided he should be allowed to continue playing, at least until further developments in his case. This raises the broader question of what to do about athletes (pro and college) who are arrested/accusd/charged with crimes but have not yet been convicted. I genuinely am not sure of the answer.
On the one hand, we do have a presumption of innocence. And if the Duke lacrosse case taught us anything, it is that schools look very bad if they move quickly to suspend student-athletes only to have the allegations and the legal case prove to be a complete fantasy (put aside whether the players did anything inappropriate-although-not-illegal). Is it fair to the player to lose a big chunk of his season because of charges that could prove unfounded? Should we place it in non-athletic terms--would a non-athlete-student in the same position as Wittels be suspended from school? If not, perhaps the athlete should not be suspended from the team. (I feel the same way about professional leagues getting all worked up about players' off-field misconduct).
On the other hand, playing for the school's baseball team is different than being one of 42,000 students. How does it look to have a player representing your institution of higher learning who is facing a charge of sexual assault? And there is a certain degree of fame and prestige enjoyed by a star athlete that is not enjoyed by an ordinary student. How does the alleged victim feel to see Wittels continuing on with his educational and athletic career, including games on ESPN? (Similar issues were raised in the controversy over an alleged sexual assault by a Notre Dame football player, who continued playing while the school dragged its feet and the student ultimately took her own life). The accusation of a crime does place the accused in a different legal position than someone who has not been accused of a crime (even if he has not been convicted). So perhaps a school/team should take action against the player who occupies that different legal position. Or should it depend on the school's assessment of Wittel's culpability--and how does the school make that assessment?
I genuinely do not know where I fall on these questions, so I throw them out there for consideration.
The NFL's Unfair Labor Practice Claim & Article LVIII(3)(A) of the CBA
By now, most football fans know that the NFL has filed an unfair labor practice claim against the NFLPA, alleging that the NFLPA has consistently failed to negotiate with the league in good faith. Most media reports, however, fail to offer a meaningful explanation about what the NFL stands to gain by filing this grievance.
Here's my hunch: The NFL grievance is about trying to delay the NFL players' right, without decertifying prior to the expiration of the CBA, to bring an antitrust challenge against certain NFL practices. This is based my reading of a particular provision buried on p. 238 of the NFL Collective Bargaining Agreement: Article LVII(3)(A).
Upon careful review, Article LVII, Section 3(A) of the NFL collective bargaining agreement (p. 238 of PDF) states as follows:
Following the expiration of the express term of this Agreement ... if the NFLPA is in existence as a union, the Parties agree that none of the Class Members ... nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i) the Management Council and the NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later.Thus, pursuant to Article LVII, Section 3(A), the event of impasse would trigger the start to a six month waiting period before the NFLPA, if it is in existence, could attempt to challenge the NFL salary cap, draft and other labor-side restraints under Section 1 of the Sherman Act.
As a matter of law, however, impasse cannot occur where the party seeking to benefit from declaring impasse has bargained in bad faith. Therefore, if the NFL can show that the union is engaged in some sort of "bad faith" bargaining, impasse would be delayed, and so too would be the players rights under the collective bargaining agreement to bring an antitrust suit against the league's draft, salary cap and other restraints.
Of course, the thought of the NFLPA bringing an antitrust challenge against certain league-wide practices is a real fear for NFL team owners. Indeed, the NFL players, after a failed strike, implemented this strategy successfully in the case McNeil v. Nat'l Football League, 790 F.Supp. 871 (D. Minn. 1992).
Wednesday, February 16, 2011
New Sports Illustrated Column: Could Michael Jordan become Player/Coach?
Recently, Henry Abbott of True Hoop had a terrific piece looking at the on-court challenges a soon-to-be 48-year old Michael Jordan -- who is now practicing with the Charlotte Bobcats, which he owns -- would have if he sought to return to the NBA, as has some have speculated he might want to do.
In a new SI column, I write about the legal obstacles of there being an owner/coach in the NBA. Here are a couple of excerpts:
Monday, February 14, 2011
National Baseball Arbitration Competition Results
Congratulations to the all of the students who competed in the 4th Annual National Baseball Arbitration Competition at Tulane Law School. We had an incredible competition this year, featuring teams from law schools across the country, including Harvard, Duke, UVA, Fordham, William & Mary, Cardozo, Notre Dame, and Georgia. Following the competition, we also had a mini-symposium featuring (as one commenter to my previous post put it) "a monster assembly of baseball guys." A special thanks to Armando Velasco, T.J. Henry, and the members of the Tulane Sports Law Society for all of your hard work in putting this competition together.
Semifinalists: William & Mary Law School (R.C. Rasmus, Laura Brymer and Mike Bagel) and Arizona State University College of Law (Taylor Alberstadt and Nick Forner)
Second Place: University of Denver College of Law (Scott Neckers and Matt Hofmeister)
Winner: University of Miami School of Law (Jason Sosnovsky and Mark Lesorgen)Look forward to seeing many of you down in New Orleans for next year’s competition….