Judge Susan Nelson. Do NFL owners now regret Judge David Doty's removal?

4. So what would you recommend the NFL do?

First, NFL teams should re-open business without any physical or other obstructions to players. A court has told the league to resume operations. It should do just that and not pull any gimmicks. It may be an awkward time for teams and players, but only if they let it be.

Second, the NFL should -- for the time being -- not employ a salary cap, meaning teams should be able to sign free agents without restriction. Teams would still be deterred in their spending because a new CBA will eventually be reached and it will contain a salary cap -- no team wants to be way over the cap when the new CBA is put in place.

Third, teams should remove franchise tag designations and other restrictions on players' free agency rights. History should convince the league of this point: the NFL has lost antitrust cases involving unilaterally imposed restrictions on movement of free agents between teams. Judge Nelson notably stipulated that teams are not obligated to sign free agents. In one respect, that stipulation benefits teams since they cannot be alleged to have engaged in a group boycott under federal antitrust law by not signing free agents. But as a matter of practice, the stipulation may not prove meaningful: teams may not be legally obligated to sign free agents, but if they don't, their competitors will.  . . .

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/27/judge.ruling.qa/index.html#ixzz1KnLWh91y

Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs  hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!

Here’s the info:
Thursday, April 28, 2011
1:00 p.m. – 2:00 p.m.
Room WA10

About our speaker:

Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents.  Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.

Notable former clients of Josh Luchs include:

Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).

Please RSVP to nylawsports@gmail.com.

• NBA players may be less able to show irreparable harm caused by a lockout.

Another factor in a trial judge's decision to grant a preliminary injunction is whether the plaintiffs -- be they NFL players or NBA players -- would suffer irreparable harm if the injunction is denied. Irreparable harm refers to a harm that cannot be adequately remedied by money damages.

Nelson, in relying on numerous affidavits, including from such prominent player agents as Neil Cornich and Tom Condon, determined that NFL players would suffer irreparable harm if they missed the 2011 season. During that time, players would age, and given that NFL players are usually in their 20s or early 30s and usually only play a few seasons, missing just one year of football might be akin to the typical person, who normally works decades in his/her lifetime, missing many years of work. Players would also lose out on conditioning and training opportunities. And as Nelson ruled, free agents are hurt even before a missed 2011 season since they cannot sign with teams during a locked out off season. She also found that 2011 rookies would be particularly hurt by a lockout since they would return in 2012 after missing a year of football -- in both the pros and college -- and then be expected to compete with 2012 rookies, who would be fresh off playing in college.

Most of Nelson's logic holds true for NBA players, as well. In fact, to advance her reasoning on irreparable harm, she cited Spencer Haywood's successful antitrust suit against the NBA in 1971. Haywood, one of the best players in the rival American Basketball Association and then a signee of the Seattle SuperSonics, was barred from entering the NBA until four years after his high-school graduation. The NBA's restriction had not been collectively bargained and was thus subject to antitrust law. A court found that he would suffer irreparable harm by missing four years of playing in the NBA.

The presence of alternative employment opportunities in pro basketball, however, could sway a different judge, particularly one who is more inclined than Nelson to favor the league's views. Indeed, if the NBA instituted a lockout, some players would likely seek and obtain comparable employment in Europe and elsewhere. While those leagues impose restrictions on the number of U.S. players allowed on rosters, the restrictions could be changed in the event of the supply of available NBA players suddenly surges on July 1. The NBA would argue that irreparable harm should not be found if players can pursue comparable opportunities elsewhere.

In response, however, NBA players would likely cite the Haywood case: even though Haywood could play professionally in the ABA, a court nonetheless found that he suffered irreparable harm by not being able to play in the NBA. NBA players would probably also charge that playing and living abroad should not constitute an equivalent employment opportunity to playing in the NBA and living in one's home country.

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/26/nfl.ruling.nba.impact

8. What effect, if any, does Judge Nelson's ruling have on the NBA?

The collective bargaining agreement between the NBA and the National Basketball Players' Association (NBPA) will expire on June 30. Just like we saw last month with the NFLPA and the NFL, the NBPA is poised to decertify and the NBA is poised to institute a lockout.

On one hand, Judge Nelson's ruling sends a warning to the NBA and its owners that, at least in her view, antitrust law holds a dim view of lockouts and that judges should not wait for the NLRB to decide on unfair labor complaints.

On the other hand, the NBA is in a very different situation.

For one, the NFL's legal argument has been hampered by the fact that not one NFL team can show that it is losing money. The inability of a team to do so suggests that enjoining the NFL lockout would not force an NFL team to lose money. The NBA, in contrast, asserts that 22 of its 30 teams will lose money in the 2010-11 season, and the league is willing to open the books to prove it. A court decision to lift a lockout instituted by the NBA would therefore subject NBA teams to losing money in the 2011-12 season. Such a consequence could motivate a judge reviewing an NBA lockout to be less willing than Judge Nelson to lift the lockout.

Second, irreparable harm may be more difficult for NBA players to show, since unlike NFL players who can play nowhere else and earn an NFL-quality income, some NBA players would be able to secure lucrative contracts in Europe and elsewhere during a lockout. If NBA players can't show irreparable harm, they would not be able to convince a judge to enjoin an NBA lockout.

Third, Judge Nelson's decision would not bind a court that reviews the NBA lockout. In fact, it is likely that such a court would be in New York, where both the NBA and NBPA are located. The NFL and NFLPA are litigating the lockout in Minnesota because the parties choose to do so in their collective bargaining agreement.

Bottom line: while Judge Nelson's ruling likely caused some concern for NBA teams, the NBA is in a very different situation and a lockout may be viewed more favorably by a court.

Read more: http://sportsillustrated.cnn.com/2011/writers/michael_mccann/04/25/nfl.lockout/

McCourt could also emphasize that other ownership groups have demonstrated numerous failings -- be they professional or personal -- and yet Selig has not exiled those owners from their teams. For instance, Selig has allowed Mets owner Fred Wilpon to remain in charge despite his exposure to lawsuits brought by victims of Bernie Madoff. McCourt could probably find other instances of owners having some combination of financial, legal or family troubles, or instances of fans outside other clubs' stadiums who have been hurt due to inadequate security. His goal would not be to slander other owners, but rather to portray his problems as far from extreme and certainly not worthy of expulsion from MLB.

* * *

In addition to the "best interests of the game" clause, MLB could also highlight the "waiver of recourse" clause found in the MLB constitution. The waiver of recourse clause prevents clubs from engaging in litigation against the commissioner, the league or other owners. Indeed, by virtue of becoming a franchise owner, an owner waives away the right to seek remedies that would normally be available through the legal system. The clause also compels owners to resolve their differences internally and to accept the commissioner's judgment as binding.

Waiver of recourse clauses can be found in a wide range of business contexts. Generally, it is difficult for purportedly aggrieved parties to overcome these clauses, especially if the clauses were freely and voluntary negotiated by sophisticated business parties (all of which would hold true with McCourt in his purchase of the Dodgers).

A waiver of recourse clause helped MLB prevail over Finley. The court held Finley could only overcome the clause if he could show that commissioner Bowie failed to follow baseball's internal rules or violated basic due process. Basic due process requires the commissioner to act fairly and not arbitrarily or with bias; the furnishing of fair notice, use of substantive hearings, reliance on neutral experts and uniform application of consistent rules all help the commissioner show that a fair and substantive process was used.

* * *

To read the rest, click here

Home runs in the thin air of Denver’s Coors Field still count the same as the ones hit at sea level in Boston. And records set by Barry Bonds, Mark McGwire and Roger Clemens still stand (see Bud Selig's comments from today about Bonds and his records), even though there’s reason to doubt that they were achieved honestly.

In track and field, though, the fastest time is not always the record time, as those who followed the Boston Marathon this week learned when Geoffrey Mutai of Kenya ran the fastest 26.2 miles in history.

Mutai’s time of 2 hours, 3 minutes, 2 seconds was almost a minute faster than what had been – and likely will remain -- the world record: a 2:03:59 run by Haile Gebrselassie in Berlin in 2008. Likewise, Ryan Hall’s 2:04:58 was 40 seconds faster than the American record set by Khalid Khannouchi nine years ago. But because the finish line in Boston is 459 feet of elevation below the starting line in Hopkinton, times set on the historic course are ineligible for records – no matter much uphill running there is between them. Boston is also a point-to-point course; the international and U.S. governing bodies prefer loops, because if you finish near where you start it doesn’t matter how much time you run with the wind at your back, you have to go about the same distance with it in your face. It’s like “What goes up, must come down,” except horizontal.

Those who follow running say this is an accepted part of the culture. When someone breaks the record in the 100 meters, for example, the first thing the crowd will do is look to the anemometer to see if it was wind-aided, much like a football fan looks for a penalty flag before celebrating a touchdown. So it is not uncommon for a world record to be different – slower -- than the “world best,” and the running community has accepted this.

The goal of these rules is to certify only records set in regular competition, not “tricked-up” courses designed specially for fast times. It’s possible, as a scientific exercise, to pick a 26.2-mile section of the interstate that runs slightly downhill, wait until the wind is blowing in the right direction, and fire the starting gun. It is likely that the 2 hour barrier could be broken, but that would put the record out of reach of future, real marathons. And that is what the IAAF is trying to avoid.

It’s hard to argue that wind wasn’t a factor in Mutai’s run. The tailwind at the start was announced at 21 mph. Anyone who’s run Boston when the wind comes in from the Atlantic Ocean knows that it’s a time-killer. And the fact that another runner, Moses Mosop, also beat Gebrselassie’s time – and two more men broke the Boston course record – gives a sense of how much the wind might have affected the race. That doesn’t taint the competition because it affects all competitors equally. But when you start measuring one race against another, which is the goal of a record book, it can be like comparing apples and herring.

Still, there is some inconsistency in the governing bodies’ position. They will certify races run with “rabbits,” who are hired to run a fast and steady pace and even shield the top runners from the wind. Gebrselassie’s Berlin win in 2008 was set up for him to break the record, and he did. Runners insist that this is a much bigger advantage than a tailwind, or a 459-foot drop in elevation. The IAAF also allows Boston times to be used to meet Olympic qualification standards, and USA Track and Field will let Hall into the Olympic trials based on Monday’s run.

In the end, there’s something just plain odd about saying that the Boston Marathon, long considered one of the toughest races in the world, is too easy to be eligible for a world record. Only three times before in history had a world record been established in Boston, all of them before the IAAF refined the rules about eligible courses. So while it has long been known that a time run in Boston would not count for a record, no one seems to have worried much about it because it was unlikely to come up. Then Mutai blistered the course on Monday. B.A.A. officials said they would apply to have the record certified, even though it’s clear the IAAF can’t do that without changing its rules. Rob de Castella, who won Boston in 1986, called on the governing bodies to recognize the record; this could be done either by grandfathering Boston in or by refining the rules to allow courses that go both up and down to have a larger drop in elevation.

In the meantime, we are likely to see a repeat of the debate that surfaces whenever the bright-line rules of a sport conflict with what we might more intuitively consider the right outcome. We saw it with the Tuck Rule, and with Armando Galarraga’s near-perfect game. A lot could depend on which feat the running community views as the real record and how the times are described in common parlance.

One thing is clear: the B.A.A. isn’t going to change its 115-year-old course to suit the IAAF. As executive director Tom Grilk told the AP the day after the race: "If somebody wants to put up a dome and chase Swifty, the rabbit from Wonderland (dog track), around, God bless them. We'll keep doing what we've been doing for 100 years: Firing off a gun and saying, 'Go.'"

* * *

"Appeals are hard,'' said Vermont Law School professor Michael McCann, who specializes in sports law.

McCann and many other legal analysts said the Bonds defense team has its work cut out in flipping the jury's verdict. U.S. District Judge Susan Illston, who presided over the trial, is rarely overturned on appeal and observers said she deftly handled Bonds' three-week trial.

"An appellate court is always reluctant to overturn a trial judge with a good reputation who ran a good trial,'' McCann said. "Judge Illston was really deliberate on everything she did and the appellate court will recognize that.''

* * *

Stanford Law School professor William Gould said it will be difficult to say persuasively that the obstruction conviction is incompatible with the other charges just because the other lack verdicts.

"It's hard to argue there are mutually exclusive charges when you have only a verdict on a single charge,'' Gould said.

* * *

• Rich Ensor, Esq. (MAAC Commissioner)
• Chris Monasch, Esq. (St. John's Athletic Director)
• Kim Keenan-Kirkpatrick, Esq. (Seton Hall Associate Athletic Director for Compliance)
• Bruce Rosen, Esq. (McCusker, Anselmi, Rosen & Carvelli)
• Daniel Brown (Sheppard, Mullin, Richter & Hampton)
• Kerry Cahill (former student-athlete)

Cleveland-Marshall College of Law

Entertainment and Sports Law Symposium

The Legal Evolution of Professional Golf and Tennis


Friday, April 15, 12 p.m.- 5 p.m.


C|M|LAW, Moot Court Room, 1801 Euclid Avenue

Sponsored by the Entertainment and Sports Law Association.

Special guest Panelists will share their experience and knowledge on the legal aspects of player representation, event management, broadcasting, publicity rights, exploitation, and legal governance.

12:00 pm – 12:30 pm: Registration

12:30 pm – 2:00 pm: The Legal Evolution of Professional Tennis

Kevin Callanan, vice president of IMG Tennis


Jim Thomas, former tennis professional

Gavin Forbes, senior vice president of IMG Tennis

2:15 pm – 3:15 pm: Legal Governance of the

Zandria Conyers, legal counsel to the LPGA

Peter Carfagna, executive-in-residence Professor at C|M|LAW, LPGA Board Member

3:30pm – 5:00 pm: The Legal Evolution of Professional Golf

Dave Lightner, owner of Fairway Sports Management


Jay Burton, senior vice president, IMG Golf

Jim Juliano, managing partner at Nicola, Gudbranson & Cooper, LLC 


This symposium is free and open to the public. Preregistration is not necessary.

Continuing Legal Education credit: 4 hours (free)

Contract Michael Kluchin at Michael.kluchin@law.csuohio.edu for more information

But federal prosecutors convict 90 percent of indicted defendants. Shouldn't they have done better here?

This question begets big picture and small picture responses.

Big picture first. While the 90 percent statistic has received a good amount of attention, it does not speak to considerable differences in wealth among indicted defendants and the possible impact of those differences on trial outcomes. Bonds possessed the wherewithal to assemble a team of leading defense attorneys, from different law firms and with complementary skills. The vast majority of indicted defendants, in contrast, cannot afford a "team" of lawyers. In fact, according to statistics provided by Department of Justice in 2000, 66 percent of federal felony defendants are represented by court-appointed counsel. Also, and less important, the 90 percent conviction rate is for all crimes; the federal government's success rate in perjury trials is slightly lower, at about 85 percent. . . .

* * *

When will Bonds be sentenced and how long will he be sentenced?

First, the defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so, as she would have to conclude that the jury was unreasonable in finding Bonds guilty.

Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.

During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.

Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.

Even if "only sentenced" to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.

If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.

* * *

I wrote a law review article on the subject in 2009 evaluating enrollment multipliers in high school sports entitled Prep Plus: Evaluating the Motivations for and Effects of Enrollment Multipliers and Other Measures in High School Sports¸ 10 Tex. Rev. Ent. & Sports L. 1 (2008). I have also written about the topic in this space back in 2006.

The multiplier has been in effect in Illinois for five years now, and last week, Illinois State Representative Michael Connelly of the Illinois House of Representatives has reignited the bitter debate over the IHSA’s use of an enrollment multiplier for high school athletics competition. Representative Connelly has proposed an Amendment to House Bill 2392, which forbids the use of multiplier or multiplier-like devices in the determination of classification for athletics competition. The amendment has gained twenty-five co-sponsors thus far. The amendment requires that competition classes be established based solely upon actual enrollments of boys and girls for respective sports (e.g. boys’ enrollment determines football class). An identical form of the bill is making its way through the Illinois Senate in the form of Amendment to Senate Bill 624.

Historically, both proponents and opponents of the enrollment multiplier have sought a level playing field, but the arguments are strikingly adverse. Proponents of the multiplier denote that because parochial, private, charter and magnet schools are not bound by pre-determined school districts, these non-boundaried schools draw from a larger pool of students, and, as a result, gain a competitive advantage. Opponents argue that enrollment multipliers create unfair “David vs. Goliath” matchups that are inherently prejudicial.

The arguments being advanced in Illinois this time around are essentially the same. In a letter directed to high school principals, the Executive Director for the IHSA, Dr. Marty Hickman, stressed that a number of non-boundaried schools have won championships since the implementation of the multiplier. Thus if the goal of the multiplier was to lessen the amount of championships won by non-boundaries schools, thereby bringing the numbers of non-boundaried schools winning championships more in line with the proportion of non-boundaried schools in the IHSA, Dr. Hickman is admitting that the multiplier has failed.

Dr. Hickman also urged opposition to the Amendment on the basis that it usurps principals’ governance and oversight power of the operations of the Association. The IHSA, as the governing body for high school athletics in Illinois, clearly sides with public institutions here.

Representative Connelly and his co-sponsors will argue that Dr. Hickman’s contentions ignore the other end of the spectrum. While it is true that large parochial schools enjoy significant athletic success in Illinois, smaller private institutions with no history of athletic prowess are often forced to compete against public school powerhouses, leading to lopsided results that benefit no one. Also, the fact that large private schools are still achieving exemplary results indicates that the multiplier is disproportionately affecting the schools with small student bodies and even smaller budgets.

The Amendment was proposed by Representative Connelly on April 1, 2011 and has yet to be debated by the General Assembly. The rhetoric already emanated suggests that it will be furiously contested. With staunch bipartisan support on both sides of the fence, it will be interesting to see if this proposed legislation will be implemented.

Boston College Law Review

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