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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?

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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.”

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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?

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

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.

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.

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.

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

"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."

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.

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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."

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.

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.”

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