Sports Law Blog
All things legal relating
to the sports world...
Tuesday, May 31, 2011
 
Connecting Minimum Age Restrictions in NBA/NFL with Jim Tressel and Ohio State mess

Sports Illustrated's Zach Lowe makes the connection in this piece, in which he interviews Alan Milstein, a contributor to this blog who litigated on behalf of former Ohio State running back Maurice Clarett in his antitrust challenge to the NFL's age limit in 2004 [I provided Alan with legal analysis during the litigation].

Here are a couple of excerpts of Zach's piece:
* * *

As I devoured SI’s fantastic Jim Tressel reporting and the avalanche of stories covering Tressel’s resignation from Ohio State University, I kept thinking back to the concept of age limits in the NBA and other leagues, even though the age limit issue is not precisely implicated in the Tressel case.

Amid all the alleged details of no-show jobs, tattoos-for-memorabilia, small cash gifts and cars (oh so many cars), I asked myself two questions:

1) Why do we care about this?

2) Why are these players in college?

* * *

The [NBA] has made noise about upping it to 20, a move the players’ union has said it opposes, even though the union does not represent players outside the league. Some members of that union — marginal veterans — have at least a slight interest in keeping the best 18-year-olds out of the league, right? Sources close to both sides have said the age limit is a very minor issue amid the collective bargaining talks, so it’s unclear exactly what the rule will look like a year from now.

Alan Milstein is a lawyer who represented Maurice Clarett in the Ohio State running back’s suit against the NFL’s age limit, and he has said before that he is looking around for the right player to challenge the NBA’s rule. Milstein told me today that any move to increase the age limit will accelerate his fight against it. “If they add another year, I have absolutely no doubt that somebody will be ready to challenge it,” Milstein said. “It will certainly make the pool of potential litigants bigger.”

* * *
To read the rest, click here.

 
Down Go the Dodgers: the Stow Suit Deepens the Debacle


The legal web cast over the storied Los Angeles Dodgers franchise just keeps getting more tangled. The family of injured San Francisco Giants fan, Bryan Stow, filed a nine-count Complaint against the Dodgers, its various holdings, and owner Frank McCourt. Stow was severely beaten in the parking lot following the opening day game between the Dodgers and Giants and remains in a coma in a San Francisco hospital. The much publicized incident has occasioned harsh criticisms on Dodgers management, but has also inspired generous charitable contributions from many parties, including much maligned former Giant, Barry Bonds. The Complaint includes various counts ranging from negligence, infliction of emotional distress, loss of consortium, and assault and battery. The full Complaint can be read here.

The allegations paint a picture of gross mismanagement of funds and resources attributable to the McCourts. The public picture already painted by the much publicized divorce proceedings between McCourt and his wife, Jamie, and their insistence on maintaining their posh lifestyle despite financial misfortune would seem to support the allegations. The complaint focuses on a myriad of inadequate security measures in place as a result of McCourt’s lapses in judgment and spending. Dodger stadium was built in 1962, and the Stows partially attribute the incident to inadequate and antiquated parking lot lighting where the beating occurred. A further contributing factor cited is the “half-off” alcohol promotion for day games at Dodgers Stadium. The most obvious danger, however, is the vastly insufficient quantity and quality of security personnel. McCourt subsequently acknowledged the shortcomings in security (including a drop in the number of uniformed police utilized and no chief of security) and took remedial measures, but that is of little consequence to Stow and his family.

Following, but presumably unrelated to, this heinous incident, Major League Baseball assumed control of the Dodgers. By all counts, MLB was compelled to this move by an apparent lack of financial management. The Commissioner can assume control of teams under his broad power to act in the best interest of baseball and clearly it is his prerogative to prevent further embarrassment to a once proud franchise and ensure the safety of patrons. Mike discussed the full legal ramifications of the takeover in his Sports Illustrated column last month.

Generally, spectators assume the risks associated with attending a live sporting event (e.g. foul balls), but that does not preclude an owner’s liability when certain actions or omissions exceed the spectator’s reasonable expectations, like assault and battery. Fortunately for the Dodgers Defendants, the general rule is that premises owners are not liable in tort for the intervening criminal acts of third-parties. However, a question for consideration that may allow the Plaintiffs here to survive dispositive motions are what level of security was provided by the Dodgers to patrons in the parking lots and at the taxi stands prior to the incident, as the same may show that the Dodgers assumed a level of control that removed the organization from claiming shelter from liability for the intervening criminal acts of third-parties. Remember that actions taken by the Dodgers, under MLB control and otherwise, since the incident would likely not be allowed as evidence in a liability action against the Dodgers as the same would be regarded as a post-remedial measure.

It will be interesting to see what, if any, say MLB has with regard to the named Dodgers Defendants as the same are now under some level of control by the League; a control that McCourt has been fighting against. Certainly the filing of this lawsuit is not helping the League’s efforts to reverse the downward spiral the Dodgers organization finds itself in.

Monday, May 30, 2011
 
Changing rules

MLB, team officials, and the media are talking about the rules governing collisions at home plate, following the pretty gruesome injury Giants Catcher Buster Posey suffered in this collision last week.




ESPN's Jayson Stark inadvertently touched on two significant jurisprudential issues and how sports reveals them. First, Stark decries that it took this injury to get people talking about changing these rules:
It always takes something like this -- something like the horrifying sight of Buster Posey lying there, face in the dirt, writhing in pain -- to get folks talking. Why is that, anyway?
Now, after the fact, people are asking what we can do to protect both catchers and baserunners from these scary two-vehicle pileups at home plate. NOW, in retrospect, people wonder if there's a way to tweak the rulebook in the name of safety. So here's a question: How come, in baseball, we never seem to have conversations about what we can do to prevent these moments BEFORE they happen? Why is it always after the fact?
Why? Because law is almost always reactive. Legislators (and, as I have argued before, the Commissioner and MLB are, at bottom, legislative actors) make legal rules in response to a problem, usually after the problem has been demonstrated by one fairly horrific or problematic example. But that is in the basic nature of legislation. We usually do not know we need to change a legal rule to prevent X until X occurs and we see the full consequences of X. Or at least to see the full consequences of X to know that the cost of allowing X to continue outweighs whatever benefits from it.

Moreover, law responds to individual stories, which are what overcomes the stasis needed to change rules, even in a relatively simple system such as a sports league. Collisions at home were not considered a problem in need of a solution; the occasional high-profile injury (Ray Fosse, anyone?), while known and unfortunate, did not outweigh these collisions as a long-standing part of the game. Now, everyone is rushing to act because this one set of facts put the issue on the legislative table.



Second, Stark points out that: 1) No one can figure out what the best rule should look like and 2) Catchers were the group most opposed to changing the rules. This demonstrates the problem of legislating off of single, rare, especially horrific stories or sets of facts. Rulemakers tend to ignore the uniqueness of the one story or its outlier nature and rush to change the rule to make sure this unique event does not happen again. But in doing so, they risk eliminating the positive aspects of the old rule and creating a new regime that, while eliminating the targeted problem, creates a host of new ones. In a rush to act, they also risk misweighing the costs/benefits of the old rule, ignoring that the unique story is "part of the game" and outweighed by its benefits. This is why it is so telling that the players most affected by the situation oppose the change--they understand that injuries happen and accept that as the risk. The question is how much rulemakers will consider that "expertise." On the other hand, I am surprised no one has mentioned concussions and head injuries. Although there is no evidence of a problem based on diagnoses, it is logical that some head injuries are involved with the sorts of collisions involved. If so, it gives legislators something to act on beyond this one particularly gruesome case.

Friday, May 27, 2011
 
Good piece by National Law Journal on 8th Circuit and NFL Lockout

Marcia Coyle interviews Robert Boland, Michael LeRoy, and me for this story, which is a good read.  The online version of the story is available at this link.

 
Upcoming Sports Law Seminar in Minneapolis

Steven Silton, a partner at Hinshaw & Culbertson in Minneapolis, has let me know of what should be an excellent sports law seminar on Friday, June 17.  The event is hosted by Hinshaw & Culbertson and Brewer Sports International.  Drew and Jason Rosenhaus will be speaking, along a number of other prominent persons in the industry - click on the image to the left for more info. 

While the event is invite only, Sports Law Blog readers will be given preference if they are interested in attending.

Here is the invitation:
On behalf of Hinshaw & Culbertson LLP and Brewer Sports International, we are pleased to invite you to the Sports Law for Rookies and Veterans seminar on Friday, June 17, 2011, located in downtown Minneapolis.  This unique program represents the intersection of issues in professional and amateur sports, media, and the law.  We have assembled a panel of industry leaders from across the country including Superagents Drew and Jason Rosenhaus, Minnesota Timberwolves Chief Marketing Officer Ted Johnson, sports radio host Henry Lake and representatives of the NFLPA.  The program will include a special lunchtime presentation of the “Champion’s Code” from best-selling sports author Ross Bernstein.

We are pleased to offer this complimentary seminar, with lunch provided, to you and another guest within your organization.  Attached please find additional details regarding the program.  To RSVP, please use the link on the attached or contact Marie Pocock of Hinshaw & Culbertson LLP at mpocock@hinshawlaw.com or 612-334-2512.

Please note, this exclusive program is by invitation only and space is limited.  Should you have more than one person from your organization that would benefit from this event, please contact Marie.

Finally, this seminar is the official kick-off for the 6th Annual JBF Worldwide Blue Carpet Celebrity Weekend. Please visit www.jbfworldwide.org for more details (or the event's Facebook page). We welcome you to stay the weekend and support the great things that JBF is doing around the world. For your convenience, a block of guest rooms has been reserved at Le Meridien Chambers. Reservations must be made by Friday, May 27.  Please be sure to reference the Brewer Sports International room block to receive the discounted rate.

We hope you will consider taking time out of your busy schedule to join us for this exciting program.  Please feel free to contact either of us with any questions.


Truly, 


Steven H. Silton Hinshaw & Culbertson LLP Jack Brewer Brewer Sports International

Thursday, May 26, 2011
 
European Soccer Adopts Salary Cap without Collective Bargaining: Antitrust Implications

Over on The Conglomerate, Wharton professor David Zaring writes about the antitrust implications of European Soccer adopting a salary cap (Part 1, Part 2).  As there is no players association with which to bargain, the cap has been unilaterally imposed.

I talk to David about the antitrust implications and to what extent extraterritorial reach of federal antitrust law, along with EC Treaty antitrust provisions, could pose hurdles.

 
Sports and politics, mixed

Let no one say sports and politics do not mix all the time. In DC's Congressional Softball League, the team from the Office of National Drug Control Policy (the "Czardinals") pulled out of a scheduled game with a team of people from various drug-policy reform groups (the "Capitol Hemp One Hitters") (H/T: Deadspin). According to a press release from the One Hitters, this is the sixth time that the Czardinals have backed out of a game with them--reflecting on the softball field that office's attitude "on the national stage" towards those who even propose or want to discuss legalization as a policy option.

 
"South Park" nails the NCAA

Last night, South Park aimed its satire at the NCAA, in an episode titled Crack Baby Athletic Association. Cartman videos sessions of crack-addicted newborns playing with a ball filled with crack and posts them on the internet, where it become a viral sensation. The kids are making tons of money and even begin negotiating with EA Sports to make a crack-baby basketball video game. But Kyle feels guilty that the babies are not receiving anything from the arrangement; in a series of one-sided conversations with Stan, Kyle throws out every justification/rationalization for why the babies still benefit and why the system is fair and works for them, even if they do not get the money they are generating. There also is a scene of Cartman doing a home visit with a pregnant addict, "signing" her soon-to-be-born son to play for St. Mary's Hospital and explaining to the mother that they will not receive money because "benefits to players would be detrementalizing to their well-being" (although he does offer the mother crack).

Wednesday, May 25, 2011
 
Sports Law Analytics

As a prequel to a longer/technical article that is currently under review at a journal, Tassos Kaburakis and I recently published an essay in Analytics entitled "Sports Law Analytics." Analytics is a quasi-academic publication published by the Institute for Operations Research and the Management Sciences ("INFORMS"). There is an accompanying INFORMS podcast too. Our essay outlines the parameters for expert witness testimony and alludes to some of the quantitative methods often used in sports-related disputes. We specifically highlight the potential role of analytics in American Needle v. NFL, et al and the Keller/O'Bannon litigation. Our sequel includes a empirically-driven discussion of the issues highlighted by Mike McCann in a recent Chronicle article by Brad Wolverton. With the sports industry increasingly turning to analytics for insight, we have found the application of statistical tools to real-world sports law issues (e.g. the efficacy of age eligibility rules) to be a fascinating research line.

Tuesday, May 24, 2011
 
New Sports Illustrated Column: NBA Players' Union files Unfair Labor Practices Charge

I have a new SI column on the NBA players' union makes the first move in a potentially protracted labor dispute with NBA.  Here's an excerpt:

* * *
Tactically, the NBA players' union may have learned from its NFL counterparts' struggles before the U.S. Court of Appeals for the Eighth Circuit. The NBA players' union may believe that its legal claims would fare better before the NLRB than they would before federal judges, even federal judges who preside over a different federal circuit than the Eight Circuit. As a result, the players' union may be trying to accelerate the NLRB's review process and to put the league on the defensive.

The NBA players' union is also in a different situation than the NFLPA, which by virtue of its collective bargaining agreement with the NFL, had to decertify before the CBA expired in March or wait until September to do so. By decertifying, a players' union can bring antitrust claims against the league and more readily get courts involved. The NBA players' union is not under the same pressure to decertify and thus may prefer to first seek redress before the NLRB.
* * *

To read the rest, click here.

Thursday, May 19, 2011
 
On league integrity and the nature of sports

At halftime of Tuesday night's Western Conference Final, the NBA held the draft lottery, in which Cleveland won the first pick and Minnesota won the second. Cleveland was represented on stage by Nick Gilbert, the 14-year-old son of owner Dan Gilbert; Nick suffers from Neurofibromatosis, a nerve disorder that causes tumors to grow in his body anywhere and anytime. Afterwards, Minnesota GM David Kahn said the following:
This league has a habit, and I am just going to say habit, of producing some pretty incredible story lines. Last year it was Abe Pollin's widow and this year it was a 14-year-old boy and the only thing we have in common is we have both been bar mitzvahed. We were done. I told Kevin: 'We're toast.' This is not happening for us and I was right.
Kaaahhnn! may or may not have been joking.

On PTI Wednesday, Tony Kornheiser said the following (the whole discussion starts around the 3:00 mark): "I have no idea if the lottery is fixed. . . . But if it's fixed, I'm 100 % for that. This is a closed corporation. If they want to go around and improve certain teams in certain way, I'm OK with that." Kornheiser viewed this as, essentially, a make-up call for Cleveland after "The Decision." Similarly, it was OK to reward the Wizards last year after the death of long-serving owner Abe Pollin. And, by implication, it was OK to reward the Knicks with Patrick Ewing in 1985, which lifted one of the league's signature franchises.

That cannot be right. The league sells itself as being engaged in open competition, results determined by luck (the lottery) or a combination of skill and luck (games and just about everything else). That, in truth, is the essence of sports and sports leagues. The league cannot surreptitiously control or manipulate that competition in any way. To do so flies in the face of what the league is promoting and what professional sport is supposed to be about. Plus, the logic of the argument cannot be limited to the lottery, but must extend to play on the court. Can the league now directly dictate game and playoff series outcomes (as opposed to indirectly, which the NBA already does, by controlling officiating assignments and giving officials "guidance" of how to call games)?

The notion of games and players being played completely above board is essential to the idea of sport and to getting fans to take sports seriously. And it was not always so. Prior to 1920, baseball was perceived as a step up from professional wrestling. The big shock in the Black Sox Scandal was not that the players had thrown the Series, but that it was the first time anyone had been caught. There were suspicions and rumors of a fix as early as the 1903 Series. And the NBA faced a genuine crisis following the officiating debacle that was the 2006 Finals, when fans raised genuine concerns about league manipulation.

I agree with Kornheiser in one respect--the NBA could dump the lottery altogether and establish a draft order based on arbitrary favoritism or a desire to help one team or another (the Chicago Bulls were assigned the first pick in the ABA Dispersal Draft in 1976 so they could draft Artis Gilmore). Just as the league could start pre-determining winners. But it has to be transparent and above board that this is how things are being done and this is why. And it no longer can sell itself as sport.

 
The NCAA Responds to the DOJ's Letter Regarding the BCS

The NCAA formally responded on Wednesday to the letter it received earlier this month from the U.S. Department of Justice regarding the legality of the Bowl Championship Series. In the response, NCAA President Mark Emmert largely deferred to the BCS to answer the Justice Department's inquiry, stating that "because the BCS system does not fall under the purview of the NCAA, it is not appropriate for me to provide views on the system."

The NCAA's letter is available here. For more on the legality of the BCS, see Sports Law Blog's prior coverage.

Wednesday, May 18, 2011
 
37th Annual Sports Lawyers Association Conference in DC

This week the Sports Lawyers Association will hold their 37th Annual Conference in Washington DC. This annual event is the premier gathering of sports lawyers from around the country and this year’s conference once again brings some of the industry’s leading practitioners, academy scholars, and students together. Scheduled topics for this conference include the following:

° The General Counsels’ Forum—including general counsels from all four major leagues
° The Executive Directors’ Forum—including the heads of each leagues players association.
° Media, Publicity, Fantasy Sports & Privacy Rights for Athletes
° Legal Impact of Agent Interference in Intercollegiate Athletics
° The Current State & Legality of the College BCS System
° Ethics for Sports Lawyers
° Latest Developments in Professional Sports Collective Bargaining
° Structuring & Negotiating Complex Transactions in Professional Sports
° Legal Ramifications of Head Trauma in Sports
° Arbitration & Mediation Update in Professional Sports

For more details on this tremendous event you can access the conference brochure here. If you can't attend this week but want to learn more about this association, the SLA website can be found here.

Tuesday, May 17, 2011
 
Roger Clemens at SCOTUS

Roger Clemens is still hanging around the Supreme Court. Clemens sought cert from the Fifth Circuit decision holding that Texas courts lacked personal jurisdiction over Brian McNamee in Clemens' defamation actions arising from McNamee's various statements to the Mitchell Commission and the media about Clemens' alleged steroid and HGH use. The case was listed for consideration at last Friday's conference, but the Court took no action. Speculation is that the Court is waiting to act on the petition until it decides two pending personal-jurisdiction cases.

I used the Fifth Circuit decision in my Civ Pro class; it is a pretty effective teaching case, if only for the somewhat stunted view that the majority took.

Monday, May 16, 2011
 
New Sports Illustrated Column: Burning Questions from Eighth Circuit's Ruling Tonight in Favor of NFL

A three-judge panel on the U.S. Court of Appeals for the Eighth Circuit has extended its stay of Judge Susan Nelson's order to enjoin the NFL lockout.  The stay will continue into June, when the panel will decide the matter on the merits.  I have a new column for SI on the ruling and what it means.  Here's an excerpt:

7. Will the players stay unified during the lockout?
If the players lose before the Eighth Circuit next month, the unified players' front may splinter into factions. Here's why:

The major advantage for players to decertify was that it empowered them to bring a very threatening antitrust case against the league. Decertification meant that the NFLPA no longer represented NFL players in negotiations with the NFL over employment conditions. As a result, the federal labor exemption, which immunizes collectively bargained rules from antitrust scrutiny, was taken off the table, thus exposing core parts of NFL football -- the draft, the salary cap, restricted free agency, etc. -- to antitrust review. The NFL is very vulnerable to losing an antitrust case, and a loss would command that the owners pay treble damages, likely in the billions of dollars.

The decertification strategy seemed successful on April 25, when Judge Nelson issued a preliminary injunction against the NFL lockout. The injunction meant the lockout was lifted, the league had to figure out new employment rules which would prove compatible with federal antitrust law and players were positioned to eventually win their antitrust litigation. The players, in other words, had all the leverage.

Everything changed April 29, when the Eighth Circuit granted the temporary stay of the preliminary injunction. If the Eighth Circuit rules in favor of the league next month, and assuming neither the Eighth Circuit grants an en banc rehearing nor the Supreme Court favorably intervenes on behalf of players, the antitrust litigation path would essentially be punted to 2012 or beyond, when a trial on Brady v. NFL might happen. By that time, some current players will be too old to play; others might fail to stay in top condition and not be able to get it back.

Such a situation could cause the players to rethink the decertification strategy and possibly contemplate recertification.

One leading reason to remain decertified is that recertification would support the NFL's argument that decertification was a sham. The NFL has filed an unfair labor practices charge with the NLRB on such a ground; the NLRB will likely decide on the charge by early next year. If NFL players recertify soon after their antitrust strategy failed, it would imply that decertification was only pursued to bring an antitrust case. That would play right into the owners' wheelhouse for the NLRB charge.

But there are downsides to remaining decertified. Foremost, players have abandoned the collective bargaining framework and are essentially acting on their own or, if they so choose, as factions of players. There is already discussion of players abandoning the NFLPA/Brady litigation and pursuing their own strategies, with their own attorneys and advisors. Expect that discussion to only amplify should the Eighth Circuit rule against the players in June. The NFLPA cannot prevent any players from negotiating with teams or the league; recertification would be required to do so. The NFL could take advantage of that situation by reaching a deal with one group of players and those players then convincing others to recertify, but perhaps with different NFLPA leadership in place.

This situation is unique and could place the NFLPA in a difficult position. Normally when there are splinter groups of employees, the employer takes a major risk by speaking with them, because Section 9(a) of the National Labor Relations Act commands that the employer speak to the duly-elected union representatives. Here, however, the NFLPA maintains that it has disclaimed interest in representing NFL players. In fact, if the NFLPA now tries to deny a splinter group a seat at the table, the NFL could argue this supports its position that the NFLPA's disclaimer was a sham.

Then again, the NFL may be wary of meeting with the splinter group. If the league does so, it could signal that the NFL acknowledges that the NFLPA has disclaimed interest in representing NFL players. Such a signal would undercut the league's argument to the NLRB that the decertification was a sham and that the NFLPA only decertified for purposes of bringing an antitrust case.

In short, if the players lose before the Eighth Circuit next month, the players and the league will have to think long and hard, not only about what to offer in a negotiation, but with whom to negotiate.
To read the rest, click here.

 
New Sports Law Institute at Vermont Law School

Brian Porto and I are excited to announce the creation of the Sports Law Institute at Vermont Law School.  It's an exciting venture that will focus on the intersection between sports, law and business and on getting students jobs and internships in the industry.

The Institute's website can be seen at this link.  Here is the news release:

VLS’s New Sports Law Institute Gives Students Opportunities in Sports, Law and Business


Photo of Professor Michael McCannSOUTH ROYALTON, VT -- Vermont Law School has established a Sports Law Institute (SLI) to prepare students for the growing opportunities at the intersection of sports, law and business.

The SLI is headed by Professor Michael McCann, one of the nation's foremost experts on sports law. He is a legal analyst for Sports Illustrated and editor-in-chief and publisher of the award-winning Sports Law Blog. The SLI's deputy director is Associate Professor Brian Porto, who has written about legal issues in sports for more than two decades.

The SLI's launching further broadens the curriculum and experiential learning opportunities at VLS, whose environmental law, international law, dispute resolution and other public-service oriented programs are nationally recognized for excellence.

The SLI serves as an educational, research and professional vehicle for exploring connections between law and sports. The institute engages in original research, promotes experiential learning and employment opportunities for VLS students and alumni and connects the VLS community with academic and professional sports law activities. The SLI also provides cutting-edge commentary on some of the biggest controversies in sports law.
photo Brian Porto
"Sports law has an emerging role in legal education and will continue to gain importance," McCann said. "It encompasses a wide range of legal topics, including antitrust law, labor law, intellectual property/licensing, contracts, commercial law, business law, immigration law, property, torts and criminal law. That breadth makes sports law an excellent device for studying the law. Sports law is also a valuable learning tool because it presents complex legal issues in fact-patterns that students generally find approachable and understandable. Our focus ranges from the ski and snowboard slopes in Vermont to the parks, courts, rinks and fields found in the big leagues and minor leagues all over the country."

More information is available at: www.vermontlaw.edu/sportslaw

CONTACT: John Cramer, Associate Director of Media Relations Office:          802.831.1106, cell: 540.798.7099, jcramer@vermontlaw.edu

Saturday, May 14, 2011
 
Slotting for MLB Draft?

Good piece by Jeff Passan on slotting for the MLB draft being a divisive issue for a new MLB CBA.  We've discussed slotting for the MLB draft a number of times on the blog.

Thursday, May 12, 2011
 
First Amendment and the Bird

Yesterday, battery charges were dropped against a Kansas City Chiefs fan who in 2009 flipped off the surrounding fans at San Diego's Qualcomm Stadium then got into a scuffle with security who intervened. The trial court ruled that the fan, Jason Ensign, was exercising his free speech rights in flipping the bird, thus giving him the right to defend himself against the security guards who tackled him.

Deadspin is having some fun with this, but this seems like precisely the right result. Note, however, that it does not necessarily speak to the full question of fan speech at stadiums, but only of whether a fan can be arrested and charged criminally for speech at a stadium. It is not clear the result if, for example, security simply had removed Ensign from the stadium. And it does not speak to the continued validity of the league's fan-conduct policies (although I long have argued that most are constitutionally suspect).

 
Bartolo Colon's Stem Cell Surgery: Sports Medicine or Cheating?

37-year-old Bartolo Colon has been an excellent surprise this season for the Yankees.  Signed to a minor league contract in the off-season, Colon, who struggled in recent seasons with inconsistency and injuries, is 2-1 with a 3.86 ERA.  His strikeouts per 9 innings are up considerably from the previous few seasons - he's striking out a batter per inning, something he hasn't done in years.  Why are his Ks up?  One reason is that he's throwing the ball 95 miles per hour again.  And why is that?  Here's one strong explanation:

* * *
Major League Baseball is examining a procedure performed on Yankees right-hander Bartolo Colon last year that involved stem cells being injected into his painful shoulder and elbow, according to The New York Times.
 

Joseph R. Purita, an orthopedic surgeon in Boca Raton, Fla., told the newspaper he flew to Colon's native Dominican Republic and helped a team of doctors there with the treatment on the 2005 AL Cy Young Award winner. He said he has used Human Growth Hormone in the procedure before, but not in this case with Colon.
 

HGH is banned by Major League Baseball.

* * *


Purita told the Times he took fat and bone marrow stem cells from Colon and injected them back into his elbow and shoulder.
 

"This is the future of sports medicine, in particular," he said. "Here it is that I got a guy back playing baseball and throwing pitches at 95 miles an hour."
* * *
Let's assume that Colon did not receive HGH.  Is the stem cell surgery itself a source of concern? 

There is no question that stem cell surgery has done wonders for a lot of people with serious injuries or disabilities and holds great promise for medicine.  And like the innovation of Tommy John Surgery 35 years ago, stem cell surgery might allow pitchers and eventually batters to continue careers that would otherwise be shut down due to injuries, wear and tear or old age.  Maybe we'll see more guys playing at a high level into their late 30s and even 40s.  More Julio Francos wouldn't be a bad thing.  Fans would get to see their favorite players play longer.  And players, knowing that they could have 15 to 20 year careers, would likely take longer-term perspectives in how they view issues in collective bargaining.

Of course, steroids can also do wonders for people with various ailments.  The same is true of HGH, which helps people recover faster from injuries.  Steroids/HGH can also prolong big league careers that would have otherwise ended.  But that hasn't stopped Baseball from viewing them as means of cheating.

Does the authoritative moniker "surgery" for stem cell surgery make it more acceptable than injecting someone with a steroid?  Or are we okay with stem cell surgery because it takes cells from one part of the body and merely relocates them to another part (as opposed to a steroid which uses as an external substance to change the body chemistry)?  Are the lines between medicine and cheating really clear?

For a few related posts, see Bryce Brentz and Teams Requesting that Players Use Medical Devices for Abnormally Good Health (from July 20, 2010), Alan Milstein's Clip, Clip, Baby! (from May 30, 2010), Howard Wasserman's Why is Steroids Use Considered Cheating (Oct. 10, 2006) and Greg Skidmore's Performance-Enhancing Surgery and Sports (April 21, 2005).

Wednesday, May 11, 2011
 
Replay and the the Law

Mitchell Berman (Texas) has written the piece I wish I could have: Replay (forthcoming in California Law Review). I read an early draft of the paper and it does a terrific job of applying legal theory to the seemingly trivial issue of replay in football and the standard of review, as well as drawing lessons from replay to apply to the legal system.

Here is the abstract:

This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer’s FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.

A lengthy investigation into the optimal standard of review for instant replay in sports might seem frivolous. But it serves a deeper ambition. We are in the early years of sports’ colonization by econometricians, as legal theorists remain watching from the sidelines. That is unfortunate. Formal organized sports are, in effect, legal systems, and legal theorists might find much both to teach and to learn by paying closer attention to competitive athletics. In short, legal theorists would benefit from a sustained engagement with what I have termed, in previous work, "the jurisprudence of sport" As a case study in this nascent field, this essay reveals that the problem of appellate review in sports is surprisingly rich and complex. But it shows more than that. The jurisprudence of sport maintains that sporting practices and norms can teach lessons for ordinary legal systems as surely as the other way around. Illustrating that claim, this essay draws from football replay practices an argument to reform the criminal trial system to accommodate two verdicts of acquittal, not one.

 
Midweek Sports Law Links

* Great interview by Talkadelphia with Temple law professor Jeremi Duru on his excellent new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (with forward by Tony Dungy).

* Possible misstep by Major League Baseball in its taking over of the Dodgers from Frank and Jamie McCourt (the two are embroiled in a nasty divorce): According to attorneys for Frank McCourt, one of the persons assigned to run the Dodgers did not disclose that he used to work for Jamie McCourt until after reviewing confidential financial information about the team.  If that's true, expect this to emerge as a key issue should MLB try to sell the Dodgers without Frank McCourt's approval.

* The federal government, apparently not deterred by the disappointing result in the Barry Bonds trial (a conviction on just one count - obstruction of justice - which was the least important count), is stepping up its investigation of Lance Armstrong and his possible use and sale of illegal performance-enhancers.  As I explained in an SI column, Armstrong, if charged, could face a wide range of charges, including fraud and racketeering.  His case, in other words, would be structured differently than those against Bonds and Roger Clemens, both of whom have faced prosecutions for knowingly lying under oath.

* Sam Amick with a good update on the forthcoming NBA labor crisis - long-story short: the two sides are talking quite a bit, but they are nowhere near an agreement.

* Jon Wertheim and Tobias Moskowitz, authors of Scorecasting, have a timely feature on SI.com on NBA referees missing many calls.  Please also check out Ryan Rodenberg's related study.

* Central Michigan University professor Adam Epstein has posted his new article, An Exploration of Interesting Clauses in Sports, on SSRN.

* Brian Baxter of American Lawyer has a great sports law column called The Score.  Check it out - tons of great info and insight.

* Sports attorney Jim Juliano has a good sports law newsletter called Legally Speaking.

* Mostly not sports law, but if you're a member or prospective member of the Massachusetts Bar, I strongly recommend reading Mass Lawyers Weekly, The Docket blog.  Really good stuff there.

Tuesday, May 10, 2011
 
An Antitrust Economist's Take on the Potential BCS Litigation

Andy Schwartz, one of the drafters of the letter recently submitted to the U.S. Department of Justice by 21 law professors and economists, has posted an interesting commentary on ESPN.com regarding the possibility of an antitrust lawsuit against the Bowl Championship Series. His article is available here.

Monday, May 09, 2011
 
Kansas State University reaches settlement with former football coach Ron Prince

It made for an interesting fact-pattern: 1) the athletic director signs the coach to a lucrative contract (or "memorandum of understanding") that contains a $3.2 million buyout; 2) the athletic director quits; and 3) the school fires the coach and says it won't pay him the buyout because, in its view, the athletic director did not have the authority to sign the coach (even though the relevant by-laws suggested he did).

Now the dispute has settled in a way that clearly favors the coach.  Here's more:

* * *
Neil Cornrich, Prince’s agent, said in a statement that Prince was “appreciative of KSU’s willingness to structure the settlement in such a favorable manner.”

Cornrich contends the settlement is a “significant financial advantage” for Prince compared to the $3.2 million buyout. Those payments were not scheduled to start for almost five years and would not be fully paid until Dec. 31, 2020.

“Discounted to present value, the $1.65 million settlement figure essentially represents an agreement to pay Coach Prince almost the entire $3.2 million termination payment,” Cornrich said. “Coach Prince will receive these funds upfront and almost nine years earlier than they were originally due.”

* * *
“I think it’s a favorable outcome for Prince,” said Michael McCann, a Vermont law professor who also works as a legal analyst for Sports Illustrated. “For the school, there is a benefit to having closure to litigation. I don’t know what the value of that is, because it’s hard to quantify, but this lawsuit has attracted a lot of publicity that the school doesn’t want.

“It will provide closure, whereas if it goes through litigation, regardless of who wins and loses, you still have the possibility of appeals and public statements. You can certainly see why the school wants to settle it and have some closure even if it means paying Prince a substantial amount of money.”

McCann said the arguments made during a hearing for summary judgment last fall in Riley County District Court appeared to give Prince the advantage.

“It seemed that the athletic director either had authority (to negotiate a coaching contract) or one could presume he had authority, and in either case Prince would likely win,” McCann said.

“I think Prince had the stronger legal argument heading into the case, but there is still a benefit to Prince for settling. It ends all risk of losing.”
* * *
To read the rest, click here.

Friday, May 06, 2011
 
New Sports Illustrated on whether Bud Selig can punish players for alcohol & DUI related issues

I speak with Maggie Gray of Sports Illustrated Video to discuss whether Baseball Commissioner Bud Selig can sanction players for alcohol/DUI related offenses.



To summarize and elaborate on my video remarks:

1) GENERAL COMPARISON WITH STEROIDS
Driving under the influence, as a form of human conduct, is much worse than using, buying or even selling illegal steroids or other illegal performance-enhancers. If you drive drunk, you directly can kill or maim others, along with directly cause substantial property damage; if you use steroids, in the vast majority of cases you can only directly hurt yourself (if in fact steroids are really harmful, a point that has drawn debate).

Now, some have written about "roid rage" and people on steroids acting violently, and families/employers of those who commit DUI or use steroids are indirectly impacted by the abusers' conduct.

But I think it's pretty clear that driving under the influence is way worse than using steroids.

2) BASEBALL COMPARISON WITH STEROIDS
But when viewed purely from the lens of baseball, are steroids worse than DUI?  Steroids are about cheating, DUIs are about off-field conduct. There's some merit to that. But that logic hasn't stopped the NFL, armed with its Personal Conduct Policy, from strictly regulating off-field conduct on grounds that certain misbehavior harms the league image.

3) DO NUMBERS ACTUALLY INDICATE A PROBLEM?
While 6 players committing DUIs in the first five weeks of the season is alarming in some media-noteworthy way, keep in mind that a) the 6 DUIs are not connected to each other and occurred in different circumstances; and b) at any given time, there are 750 players on the 30 MLB rosters - 6 out 750 is less than 1%. Is there really an epidemic of MLB players committing DUIs? Could the level of misconduct be the same as previous years, but only this time a few more players than normal were caught for an offense that culprits often get away with?

4) THEORY AND BEST INTERESTS OF THE GAME CLAUSE
In theory, Bud Selig invoke his Best Interests of the Game authority to sanction players for the DUIs. The DUIs have clearly embarrassed the game and the collectively-bargained Joint Drug Prevention and Treatment does not mention alcohol, an omission which he could interpret to mean he is not limited by the Policy.

5) REALITY AND COLLECTIVE BARGAINING
In reality there are at least 3 reasons why Selig will wait on sanctioning until there is collectively bargained language:

i) The Players Association would greatly resent him acting unilaterally and that could cause labor negotiation problems for Selig and the owners in their discussions with the PA on a new CBA (the current one will expire on December 11, 2011), or at least in terms of developing an alcohol/DUI policy.

ii) The Players Association could file a grievance with an independent arbitrator (under the terms of the CBA), arguing that Selig has overstepped his authority and that alcohol and related arrests need to be mentioned in the Policy.

iii) Selig has to be careful not to violate the Americans with Disabilities Act, which regards alcoholism as an impairment and, in certain situations, can empower an employee for seeking redress when an employer punishes him/her for matters related to alcoholism.  See our discussion on Roy Tarpley for more.

 
Catching up with Links

* Dan Fitzgerald of Connecticut Sports Law has an excellent piece on the difficult choice undrafted free agents have in choosing between certain opportunities in the United Football League and potential/lockout-uncertain ones in the National Football League.

* Speaking of the UFL, Darren Heitner over on Sports Agent Blog has posted the league's standard contract.

* Over on The Blackbook Legal Blog, Goutman Jois has some terrific commentaries on the NFL lockout (see here and here for example)

* I speak with the Associated Press about an ethics investigation into the potential conflict of interest of members of an NCAA panel who are looking into the Fiesta Bowl also attending  a Fiesta Bowl-sponsored retreat.

Thursday, May 05, 2011
 
NCAA Rule Change Ignores Players' Best Interests

A few weeks ago I wrote an article taking the NCAA to task for failure to provide an adequate amount of time for underclassmen in men’s basketball to “test the waters” before having to remove their name from the NBA draft if they wished to retain their college eligibility. It is obvious that the constraints this rule provides on the amount of time individuals have in making this decision are intended to benefit colleges yet do not reflect a modicum of interest in what’s right for the student-athlete.

Just recently the NCAA, in their infinite wisdom behind the lobby of the ACC basketball coaches, made a rule change for 2012 further restricting the date by which student-athletes must renounce their NBA aspirations if they intend to return to school from May 8th (currently) to April 10th (new rules)—not surprisingly the day before the NCAA's spring basketball signing period.

The rationale for this policy change, as described by the coaches who sponsored this rule, was to make sure that student-athletes could focus on academics during the spring while also giving coaches a better idea of their roster for the coming season before the recruiting period closes. While I would always applaud a commitment to academics, coaches and the NCAA don't seem to have any concern about missing class time for conference and NCAA Tournament games as schools take teams on the road for much of the month of March.

What I glean from this rule change is that making a bad career decision is fine, just do it quickly so that a school knows whether or not they need to recruit your replacement.

Anyways, for a wonderful opinion piece on this topic, read the article that fellow advocate for student-athletes Marc Isenberg has posted on his Money Player blog here.

 
Recent BCS-Related Developments

For those following the on-going saga regarding the legality of the Bowl Championship Series under federal antitrust law, there have been several developments this week that may be of interest.

First, the Honolulu Star-Advertiser reported on Tuesday that the State of Hawaii is considering whether to join the forthcoming antitrust suit that Utah Attorney General Mark Shurtleff intends to file against the BCS. Hawaii AG David Louie reportedly discussed the issue at length with Shurtleff during a recent meeting of state attorneys general, and his office is working on an agreement with Utah to share related materials. Hawaii would be a logical state to join in such a suit, given that its flagship university is in a non-BCS conference, and received a disproportionately small share of revenue for its 2008 Sugar Bowl appearance.

Second, Christine Varney, an Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, sent a letter on Tuesday to NCAA President Mark Emmert, inquiring as to the NCAA's position on the BCS. Varney's letter began by stating that "serious questions continue to arise suggesting that the current [BCS] system may not be conducted consistent with the competition principles expressed in federal antitrust laws." The letter then went on to ask the NCAA to explain why it does not offer a playoff for the Football Bowl Subdivision, and whether the NCAA believes the BCS currently serves the best interests of "fans, colleges, universities, and players." The letter closes by stating that the NCAA's views on these issues will help the Justice Department determine how to proceed with respect to the BCS, a clear signal that the federal government continues to investigate the legality of the system.

It will be interesting to see how the NCAA responds to the Justice Department's letter. The six BCS conferences possess an inordinate amount of power within the NCAA, and will presumably pressure the organization to remain agnostic regarding a playoff in its response. However, the NCAA membership at large would stand to benefit significantly if a playoff were implemented in the Football Bowl Subdivision, given that the NCAA would undoubtedly retain a share of the revenues it generates (as it does for the NCAA Division I men's basketball tournament). In the unlikely event the NCAA came out in favor of a playoff, pinning the blame for the lack of a playoff on the obstinate leadership of the six power conferences, it could inflict a significant blow to the BCS's chances of surviving this latest round of political pressure.

Finally, CNN is reporting that Utah Senator Orrin Hatch "demanded" the Justice Department further consider a potential lawsuit against the BCS during Attorney General Eric Holder's appearance before the Senate Judiciary Committee on Wednesday. AG Holder reported stated that he did "not disagree" with Senator Hatch's characterization of the BCS as a "mess" that provides distinct advantages to certain "privileged conferences."

All in all, one has to wonder how much longer the BCS leadership will continue to defend the system in the face of increasing political pressure, especially given the fact that the six BCS conferences would stand to earn hundreds of millions of dollars more per year under a playoff system.

Update: Mike McCann is interviewed today by David Moltz of Inside Higher Ed on the Justice Department's letter to the NCAA.

Update #2: The PlayoffPac blog discusses the relevance of the NCAA's views on the playoff matter, noting that NCAA bylaws prohibit any outside entity from establishing its own championship tournament.

Wednesday, May 04, 2011
 
A Primer on Referee/Umpire/Sports Official Bias

The issue of possible bias among referees, umpires, and sports officials is timely. Late last month, ESPN Dallas/Fort Worth ran a story highlighting how the Dallas Mavericks have fared in the playoffs when NBA referee Danny Crawford was part of a three-person crew. While the numbers set forth in the ESPN article were eye-catching, they were far from conclusive. In a 2009 article (here or here), I analyzed every Dallas Mavericks game during a seven year period, not merely the team's playoff games. I did not find any NBA referee to exhibit bias against the Mavericks when considering all games.

In the second of a trilogy of micro-level NBA referee bias-related journal articles, I investigated allegations made by former Miami Heat coach Pat Riley against two NBA referees (and found no bias on the part of the referees). The resulting paper was published yesterday in the Journal of Quantitative Analysis of Sports. Below is an excerpt that highlights some of the research being done on the issue:

"The presence of bias among referees, umpires, and judges in sports has been part of a growing body of research. Among basketball referees, the analysis of bias has been conducted on the basis of omissions (Moskowitz and Wertheim, 2011), race (Price and Wolfers, 2010), profit-maximizing motives (Price, et al., 2010), point spreads and home court advantage (Shmanske, 2008), aggressive play (Anderson and Pierce, 2009), spectator influence (Lehman and Reifman, 1987), and personal animosity (Winston, 2009; Rodenberg and Lim, 2009). Outside of basketball, Parsons et al. (2011) found evidence of racial bias by baseball umpires, Brimberg and Hurley (2009) pinpointed a home bias among ice hockey referees, Emerson, et al. (2009) focused on judging bias in Olympic diving, and Morgan and Rotthoff (2010) unearthed some evidence of sequential order bias among gymnastics judges. In soccer, referee decision making has been investigated as a function of crowd noise (Nevill, et al., 2002) and social pressure (Garcicano, et al., 2005; Dohmen, 2008). Evidence of referee bias on the basis of nationalism has been investigated in rugby (Page and Page, 2010) and figure skating (Zitzewitz, 2006; Fenwick and Chatterjee, 1981)."

NOTE - If there are any like-minded researchers looking to collaborate, please drop me an email or touch base at the upcoming Sports Lawyers Association conference in Washington, DC. I have found this quasi-legal research line to be fascinating and, in turn, fertile for extensions.

Tuesday, May 03, 2011
 
Frank McCourt sued by former law firm for unpaid bills

I recently examined Major League Baseball's decision to take over the Dodgers from Frank McCourt, who has encountered a number of problems.  David Frank of Massachusetts Lawyers Weekly now looks at Bingham McCutchen, a Boston law firm that used to represent McCourt, suing McCourt to collect hundreds of thousands of dollars in unpaid legal fees.  Bingham McCutchen wants a Massachusetts state court to declare that the firm met its standard of care in representing McCourt.  Bill Shaikin of the Los Angeles Times has additional coverage.

 
Men's sports and Title IX

Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get put in a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).

But it is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory.

I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it.

Monday, May 02, 2011
 
Miami Book Presentation

Forgive me a bit of shameless self-promotion:

This Tuesday, May 3, at 8 p.m., I will be doing a talk on my book, Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System, at Books & Books, the wonderful independent bookstore in Coral Gables. This is part of the book series sponsored by FIU's School of International and Public Affairs. Recent events--namely the district court's decisions allowing some of the players' civil claims to go forward against Duke and the City of Durham and the indictment of Crystal Mangum for murder in her boyfriend's stabbing death--have suddenly put this case back in the news.

If you are in Miami Tuesday, I hope you can stop by.

Sunday, May 01, 2011
 
When Somebody’s “0” Does Go

In one of the most sensational months of professional boxing in recent history, the undefeated records of two of boxing’s hottest young contenders, middleweights James (Stone Cold) Kirkland and David LeMieux, and those of two of its mostly highly regarded young champions, Andre Berto and Juan Manuel (Juanma) Lopez, all came to an end in dramatic fashion. 

While it is widely perceived that a boxer’s “0” makes them that much more marketable, the way in which the first loss is suffered and the implications of same are ultimately what makes the difference in the eyes of a boxer’s promoter or manager and the boxing public.  

What kind of protections do boxing’s promoters and managers create for themselves in the event that the first loss makes them lose faith in their previously undefeated charges or alters their plans for them? 

A quick look at the most standard types of contractual provisions to address a boxer’s first loss, and all other losses, follows. 

The Right to Terminate Following a Loss or Draw   

Is it not uncommon to see language in a boxing promotional or management agreement that empowers a manager or promoter to terminate the agreement, at his sole discretion, in the event that the boxer “shall fail to have been declared the winner” of one or two matches during the term of the agreement. As it sounds, this provision means that if a boxer is either the recipient of a loss or a draw, he may soon be a free agent if his manager or promoter so decide. While a boxer may view this provision as a right for manager or promoter to kick him when he is down, think of it from a manager or promoter’s point of view; do they want to continue to be contractually and financially obligated to someone that might reveal themselves as a dog in a given loss.
 
With the possible exception of Kirkland, who was steamrolled in one round by the underrated Nobuhiro Ishida, it would not appear that any of this month’s losers truly showed themselves to be unworthy of a continued relationship with their promoter or manager. Each of them lost after spirited efforts, and each of them is either a big enough draw or a proven enough entity to jump right back into the mix. LeMieux may need some rehabilitation and confidence building fights, as he is young and was previously unproven at the top level of the sport, but he is a draw in his native Quebec and an explosive, TV-friendly puncher. Berto and Lopez were both top level young champions who had proven themselves and their worth on several occasions prior to their respective losses, and during their losing efforts themselves, and could jump right back into important bouts. Even Kirkland was a popular, TV-friendly attraction who had blown through the middle and upper-middle echelon of the middleweight division in an explosive, Tyson-esque manner before being chinned by Ishida. Therefore, provided that the aforementioned boxers’ teams all had termination provisions that could be activated by a boxer failing “to have been declared the winner” in their agreements, they all have to think long and hard before releasing such talent. 

The Right to Re-Negotiate Terms Following a Loss or Draw 

A promoter or manager who aware that he either may be taking on damaged, but marketable, goods at the start of a given agreement, or is simply cognizant of the fact that no one is unbeatable but believes every boxer deserves the chance to redeem themselves, may reserve the right to renegotiate certain terms of their agreements, such as the minimum number of guaranteed bouts, the amount of a monthly stipend, or the minimum purses, in the event that a boxer “failed to have been declared the winner” of a bout or two during the term. While such a provision may result in the boxer having less activity or less income generated under a given management or promotional agreement going forward, it also means that they are not left out in the cold as a free agent after a loss or draw and will be given the opportunity to come back from their setback without a drastic change in the make-up of their team. In sum, a renegotiation could be far better than nothing for a boxer who may otherwise have nowhere else to turn following the loss of his “0.”

The Right to Toll the Term of the Agreement

Perhaps a boxer is unable to fight for several months due to a medical suspension or decides he needs some time to re-evaluate his career and thus takes a year or two off following a loss or a draw. Indeed, Kirkland, Lopez, and LeMieux were all likely placed on medical suspensions since they lost by knockout. One or all of them may wish to take some time off to reevaluate their careers and take inventory. A tolling provision in a promotional or management agreement would cover such scenarios and allow a boxer’s team to continue to benefit from its agreements with him in times of uncertainty. As previously detailed in “Toll Road Back to Ghost Town?,” a typical tolling provision allows a promoter or manager to extend the term of their agreement with a boxer in the event of a postponement of a given fight, or in the event that the boxer becomes injured, suspended, or permanently/ partially disabled. This provision is placed in an agreement to help ensure that the promoter or manager has every opportunity to get a return on his investment in a boxer no matter what happens during the term of their relationship. It can have advantages for the boxer too, as it makes certain that he has a promoter and/or manager to continue his career with following injuries, personal troubles, suspensions, and other events that keep him out of the ring for appreciable lengths of time.

Sore Losers and the Morals Clause

What if, for example, Kirkland decided to go on an anti-Japanese diatribe, including derogatory remarks about the Japanese tsunami victims, following his loss to Ishida rather than just complaint about the stoppage? Or, per actual events, what if the promoter or manager of super middleweight contender Khoren Gevor decide that his attack of referee Manfred Kuechler following his tenth round disqualification loss to Robert Stieglitz on April 9, 2011 makes him more difficult to promote and was generally bad for business? Well, if there was a morals clause in any of Kirkland’s or Gevor’s agreements, the aforementioned antics following their losses could provide another reason for a promoter or manager to unload them. As previously detailed in “Throwing Stones When Living with a Glass Jaw?,” a typical morals clause allows one or both parties to a given agreement the option of terminating the agreement in the event that the other party does something to either bring ill-repute to himself or otherwise does something to sully the other party’s name or image. Anti-Japanese slurs and assaults on referees theoretically qualify as occurrences that would bring ill-repute to someone or sully a party’s name or image. A word to boxers who are virulently disappointed following a loss and cannot think of anything appropriate to either say or do: do your best to keep it to yourself until the press is outside of an earshot. There is no need to put your contractual relationships at risk because of inappropriate words or actions in the ring following a loss.

A smart manager would do his part to both negotiate these protections into his own agreement with a boxer and lessen the impact of any such protections when negotiating a boxer’s promotional agreement. Likewise, a smart promoter would be smart to make the aforementioned protections as strong as he feels a particular situation warrants so that he is not compelled to carry any boxer perceived as dead weight following a bad loss or draw. With these protections available for both their management and promotional agreements, the boxers themselves are best served to simply do their part to show up for each of their bouts in the best mental and physical condition that they can be and give the best effort that can be expected of them. Otherwise, when the 0, 1, or 2 goes, they will increasingly be at the mercy of the whims of those in charge of handling their professional careers.  

This article can also be found on http://www.8countnews.com. Since this article was originally written, another hot undefeated prospect, 2008 U.S. Olympic alternate Roberto Marroquin, lost his "0" in a split decision loss to tough Mexican journeyman Francisco Leal.  Follow Paul Stuart Haberman, Esq. on Twitter at @Standing8Court.