Sports Law Blog
All things legal relating
to the sports world...
Saturday, August 27, 2011
 
Family of L.A. Kings scout Mark Bavis won't settle Sept. 11 lawsuit

There were 2,977 people killed in the Sept. 11 attacks, and 2,880 families went through the Victim Compensation Fund that was set up by the U.S. government to save the airlines from the expected deluge of lawsuits. The fund, run by special master Kenneth Feinberg, paid out more than $7 billion.

Ninety-five families gave up the chance for a quick payoff -- the fund finished up in 2004 and paid an average of $2.08 million to the survivors (and an average of $400,000 for more than 2,600 who were injured) -- and sued. Ninety-four have settled.

The remaining wrongful death lawsuit is from the family of Mark Bavis, a former Boston University hockey player and scout for the Los Angeles Kings. Here is the AP story on Bavis v. United Airlines et al, and why even after 10 years the Bavises refuse to settle.


Wednesday, August 24, 2011
 
Fantasy Football Season is Coming. Is Your League Legally Prepared?

Mike has reported extensively on the Tom Brady settlement and anticipated 10 years of labor peace in the NFL. For more than 20 million Americans,this means a return of their favorite pastime: fantasy football. Nevertheless, even as fantasy football has become a multi-billion dollar industry, few seem to understand how federal and state laws apply to fantasy sports.

With great pleasure, I thus introduce my newest law review article: A Short Treatise on Fantasy Sports and the Law: How America Regulates it New National Pastime. This article, which will be published in the upcoming edition of the Harvard Journal of Sports and Entertainment Law, explains how federal and state laws regulate the fantasy sports industry (including fantasy sports host sites, fantasy sports advisory sites, fantasy sports treasury sites, fantasy dispute resolution sites).

Upon conducting my research for this article, here are five interesting tidbits that I learned:

(1) Fantasy sports can be traced back to the early 1960s and a game known as "The Baseball Seminar," which was played by distinguished professors from Harvard University and the University of Michigan.

(2) Not all states agree that fantasy sports leagues are legal. Just ask Randy Bramos: a Florida firefighter who was arrested in 1991 for running a fantasy baseball league (all charges against him were ultimately dropped).

(3) Of all states, Montana has the most complex, and perhaps most insightful, way of regulating fantasy sports leagues. Under the Montana statute, fantasy sports host sites are only allowed to charge up to 15% of league entry fees as administrative fees for running a league. This rule may place certain CBS Sports fantasy games on the wrong side of Montana state law.

(4) Certain scoring systems in fantasy sports games are patentable. Indeed, there was an 2002 case in the Federal Circuit involving alleged patent infringement in the fantasy sports industry.

(5) If your employer does not allow you to solicit fantasy sports membership, it may be for good reason. A 2000 Tenth Circuit Court of Appeals case found it to be discriminatory for an employer to allow workplace solicitation during the workday of fantasy sports membership, but not union membership. Thus, if an employer wants to prevent employees from soliciting union membership, the employer should also prevent employees from soliciting fantasy football membership.

For those interested in reading my full article about fantasy sports and the law, again, it is available for download here.

 
Upcoming Boston sports law panel: Understanding the NFL and NBA Labor Disputes and Their Economic Impact

I'm looking forward to being a panelist on this upcoming panel on NBA and NFL labor issues hosted by the Boston Chapter of Women in Sports and Events.  If you would like to attend the Wednesday September 21 event, which will be held in the Boston office of Nixon Peabody (100 Summer Street) between 6:30 and 8:30 p.m and which is open to those interested in sports law, please e-mail info@wiseinboston.com.



Sunday, August 21, 2011
 
Dan LeBatard never took Evidence

Dan LeBatard of the Miami Herald is not a lawyer. But I often complain that when the mainstream media tries to talk about law, they invariably get it wrong. Today,  LeBatard tried to urge patience as allegations swirl around UM's football team, with some genuinely incoherent comments about law.

First, he says that "Circumstantial evidence is not actual evidence." Umm, yes, it is. We know that, because, as a blogger for The Big Lead says, it says "evidence" right there in the phrase. And in any event, the evidence against UM is not circumstantial. Someone with firsthand knowledge (Shapiro) is stating the things he did (giving players money and other gifts, etc.) and those things violate NCAA rules. That is as direct as evidence can get.

Later, LeBatard says "precious little of what we’ve seen amid this noise so far can be considered truth, evidence, facts." Again, this is wrong on many levels. What we have been hearing are, indeed, facts--assertions or propositions about events that have happened in the world (e.g., "I gave money to UM football players"). And it is evidence--information by someone with knowledge offered to establish the truth of those assertions or propositions. Is it truth? That we do not know (although each of us is free to reach our own conclusions for now) and that ultimately will be for some fact-finder, whoever it turns out to be. But doubting the truth of facts does not mean they are not facts; disbelieving some evidence does not mean it is not evidence.

Saturday, August 20, 2011
 
Two New Sports Illustrated Columns: NFL concussion lawsuit and Mike Jacobs testing postive for HGH

I have a couple of new SI columns.  Yesterday I wrote about the first class action lawsuit brought by retired NFL players against the league for concussions and related neurological problems; on Thursday I wrote about the impact of minor leaguer Mike Jacobs becoming the first player in pro baseball, basketball, hockey or football to test positive for Human Growth Hormone.  Here are the links:


Friday, August 19, 2011
 
Brief thought on the UM scandal

I doubt the allegations against UM's football team are that unusual as NCAA violations go, although the salacious details (prostitutes, strippers, and abortions) are irresistible to the media. The story is bringing into stark relief the basic disagreement over whether the NCAA and its regulations are worthwhile or whether they are the problem, as demonstrated by this exchange between Deadspin's Tommy Craggs and Charles Robinson, the Yahoo! reporter whose investigative work broke the story.

Several people, including NCAA President Mark Emmert, have suggested that the "Death Penalty" could be in play here.  I find it telling that we did not hear similar talk surrounding the recent investigations of The Ohio State University, USC, or North Carolina, or the fledgling investigation against Kentucky basketball last summer. And while I do not believe the NCAA would do that (and Emmert apparently has walked his comments back), the tone of the discussion is noteworthy. Why the difference? Advocates of the death penalty would argue that Miami is a blatant repeat offender; this would be the third or fourth major violation in the past twenty years, not to mention the unproven scandals (such as Luther Campbell's unproven Pay-for-Play) and the school's overall reputation as a bandit/thug school.

But let me suggest a different, less-principled explanation: Miami looks a lot like SMU, the only school to suffer the ultimate sanction, did in the 1980s. Both are relatively small (SMU has 12,000 students, UM 15,000) private universities that are new (or relatively new) to big-time college football. Both burst on the football scene, combining on-field success with a brashness that disturbed the NCAA establishment. Back in 1987, SMU lacked the political capital within the NCAA to resist the penalty; and, if you believe the 30-for-30 documentary, there was a strong sense  that the old guard who controlled the NCAA were also trying to make a special point by bringing the hammer down on the unwelcome interloper.

Could the NCAA's old guard again be gunning for the interloper, one whose style has long rankled? The NCAA backed off from really going after OSU and USC, two old-line football powers. Does Miami have enough political capital to resist, if the NCAA is determined to swing the hammer against it in a way it did not against establishment schools?

Thursday, August 18, 2011
 
NFL enforcing NCAA regs?

The NFL announced the eligible players for Monday's Supplemental Draft, a list that includes Ohio State QB Terrelle Pryor. In addition, however, NFL Commissioner Roger Goodell announced that Pryor would not be eligible to practice or play in the first five games of the NFL season--the same length as the suspension that Pryor would have served had he remained at Ohio State.

The NFL explains:

In addition to being notified that Terrelle Pryor may be selected in the Supplemental Draft, NFL clubs were informed that Pryor made decisions that undermine the integrity of the eligibility rules for the NFL Draft.  Those actions included failing to cooperate with the NCAA and hiring an agent in violation of NCAA rules.  This resulted in Ohio State declaring him ineligible to continue playing college football.  Pryor then applied to enter the NFL after the regular draft.  Pryor had accepted at the end of the 2010 college football season a suspension for the first five games of the 2011 season for violating NCAA rules.


In his decision allowing Pryor to enter the Supplemental Draft, Commissioner Roger Goodell determined that Pryor will be ineligible to practice prior to or play in the first five games of the NFL regular season after he signs.  Pryor may be selected in the Supplemental Draft, negotiate and sign a contract with an NFL club, and fully participate in the remainder of the preseason.
 Deadspin finds this "incredible" and perhaps it will not stand if Pryor sues and/or the NFLPA gets involved.

But consider: At least part of the problem with NCAA enforcement is that the real wrongdoers (and let's assume for the moment that NCAA regs are worth enforcing and those who break those rules are worthy of sanction) virtually never are punished. The players and coaches involved in the misconduct are long gone from a school by the time any punishment is imposed and the punishment falls entirely on a new coach and new players who had nothing to do with anything. For the players who are just marking time in college because they have to, having to leave college and jump into the pros (as Pryor is doing) is not a meaningful sanction.

The answer thus is for the pro leagues to enact their own rules sanctioning professional players who broke NCAA rules. This is particularly so, as with Pryor, the wrongdoing was a direct step to trying to go into the pros (or so the NFL believes) and the wrongdoing is close in time (as opposed to the wrongdoing being discovered three years into the player's NFL career, as with, for example, Reggie Bush).

The question, beside whether this will work, is whether this is a one-shot deal or the NFL is serious about trying to bolster NCAA enforcement by wielding its own punishment authority.

Tuesday, August 16, 2011
 
Papers Sought For 2012 NCAA Scholarly Colloquium

The fifth annual Scholarly Colloquium on Intercollegiate Athletics will be held on January 10-11, 2012, in conjunction with the NCAA Annual Convention in Indianapolis, IN. The theme for this year’s colloquium is “NCAA Academic Reform: Progress, Problems, and Prospects.” The conference will feature keynote speakers, two formal reactions to each keynote, and concurrent sessions of oral presentations and a poster session. For scholars wishing to submit proposals for oral or poster presentations, and for more information about the colloquium, see this link.

Monday, August 15, 2011
 
New Sports Illustrated Column: Were the Cubs Justified to Place Carlos Zambrano on the Disqualified List?

Here is my take for SI on the Cubs taking the unique step of disqualifying Carlos Zambrano from its team after the pitcher cleaned out his locker during the middle of last Friday night's game between the Cubs and Braves and told teammates he was done playing baseball.

Thursday, August 11, 2011
 
Age Rules (and Age Fraud) in Women's Gymnastics


Andrea Eagleman and I collaborated on a paper that was recently published in the University of Baltimore Law Review. A working paper version can be found on SSRN here. The initial impetus for the article was to analyze gymnastics’ minimum age rule from an antitrust perspective. However, the research quickly morphed into the policy-related issue of age fraud in sports. Age fabrication was a high-profile issue during the 2008 Olympic Games in Beijing and will likely be a part of next year’s Olympics as well. For example, the entire North Korean women’s gymnastics team has been banned from the 2012 London Olympics because of rampant state-sponsored age fraud. In most sports, athletes falsify their age downward. The reverse is true in women’s gymnastics, where gymnasts (in concert with their coaches and/or national federations) manipulate their age upward, purporting to be older than they actually are. An excerpt from our conclusion is below:

While gymnastics’ current minimum age rule would likely survive an antitrust challenge, the rule’s policy impact has been profound in two distinct ways, both negative. First, as predicted by Bela Karolyi, the enactment of the current age rule has helped usher in an era of increased corruption related to age fabrication. As the recent cases in China and North Korea evidence, the nefarious conduct reached governmental levels, where officials knowingly altered documents to further the fraud. Second, the countries that falsify such documents as a way to circumvent the age rule have created an unlevel playing field vis-à-vis those countries that follow the rule.

Wednesday, August 10, 2011
 
Scorekeeping: Tracking Subconscious Racism in Baseball

The following is a guest post is from Adam Felder and Seth Amitin and it concerns their fascinating new project Scorekeeping: Tracking Subconscious Racism in Baseball.

 * * *

We all talk about the performance of baseball players and our language permeates through every limb of the sport--the media, the fans, the players, the front offices, the public relations department, and so on. While these discussions often reference countable statistics such as home runs, batting average, and strikeouts, they also reference intangible characteristics that cannot be listed on the back of a baseball card. Descriptors such as “scrappy,” “hustling,” or “plays the game the right way” are bandied about despite there being no way of actually measuring these qualities.

Anecdotally, these intangible descriptors seem to be used disproportionately to describe white baseball players, while equally intangible pejorative terms (“lazy,” “lackadaisical,” “clubhouse cancer”) seem to be used to describe players of color.

Our study, “Scorekeeping: Tracking Subconscious Racism in Baseball” seeks to analyze the use of both complimentary and pejorative adjectives to look for any systematic racism present in baseball announcing. The study is being conducted by Seth Amitin, editor of DingersBlog.com, and Adam Felder, a social sciences PhD candidate at the University of Virginia.

Specifically, the study will analyze roughly 900 televised baseball broadcasts over a 30-day period—30 observers each watching 30 games and coding each incident of an announcer using an intangible adjective to describe a player.  Analysis will cite, amongst other things, the race of the player, the race of the announcer, the intangible adjective used, and the game situation in which the incident occurred. After compiling the data, analysis will be conducted to determine whether, all else equal, the use of these descriptors is linked to race.

Our team would very much appreciate assistance in completing the study. Specifically, there are two ways in which you could help:

1.)   Donate to our fundraising page on KickStarter. At the time of this writing, we are nearly 80% of the way to our goal. Should we end up overfunded, we can expand our scope beyond television broadcasts and begin to focus on radio and print as well.

2.) Volunteer to watch 30 days’ worth of one team’s games and code each incident. Our team will provide instructions for coding and a pre-formatted spreadsheet with which to code. Please note that it is almost certain that the 30-day window will include games that have already been played; you will need to be able to watch these games as well (an MLB.tv account is probably the easiest way to accomplish this). Upon completion of scoring the 30 day window, you would receive a small stipend for your efforts. If interested in data collection, please email Adam Felder (amf5ka@virginia.edu) or Seth Amitin (sethamitin@gmail.com)

Please feel free to contact either of the researchers should you have further questions.

Tuesday, August 09, 2011
 
New Sports Law Scholarship

Recently published scholarship includes:
David Adelsberg, Note, Did the MLBPA strike out? An analysis of union liability in Major League Baseball’s anonymous 2003 steroid testing, 28 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 695 (2011)

F. Gibbons Addison, Note, A proposed wealth distribution system based on the underlying premise of revenue sharing in American pro sports, 89 TEXAS LAW REVIEW 1179 (2011)

Vikram David Amar, The NCAA as regulator, litigant, and state actor, 52 BOSTON COLLEGE LAW REVIEW 415 (2011)

Andrew D. Appleby, Leveling the playing field: a separate tax regime for international athletes, 36 BROOKLYN JOURNAL OF INTERNATIONAL LAW 605 (2011)

Carlos E. Bacalao-Fleury, Note, Brazil’s Olympic trials: an overview of the intellectual property challenges posed by the 2016 Rio de Janeiro Games, 2011 UNIVERSITY OF ILLINOIS JOURNAL OF LAW TECHNOLOGY & POLICY 191

Jesse A. Bland, Note, There will be blood...testing: the intersection of professional sports and the Genetic Information Nondiscrimination Act of 2008, 13 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 357 (2011)

Joseph R. Brubaker & Michael W. Kulikowski, A sporting chance? The Court of Arbitration for Sport regulates arbitrator-counsel role switching, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2010)

Van Ann Bui, Note, Varsity blues: a call to reconfigure the judicial standard for high school athletic association transfer rules, 34 COLUMBIA JOURNAL OF LAW & ARTS 231 (2011)

Erin E. Buzuvis, The feminist case for the NCAA’s recognition of competitive cheer as an emerging sport for women, 52 BOSTON COLLEGE LAW REVIEW 439 (2011)

Matt Carter, Note, Punting on logic: the Roberts Court to sack small business once again in American Needle v. NFL, 30 LOYOLA LOS ANGELES ENTERTAINMENT LAW REVIEW 477 (2010)

Jessica Constance Caggiano, Note, Girls don’t just wanna have fun: moving past Title IX’s contact sports exception, 72 UNIVERSITY OF PITTSBURGH LAW REVIEW 119 (2010)

Tyler C. Haslam, Comment, Leveling the playing field: using rational basis with a bite as means of overcoming the NCAA’s violation of equal protection, 37 OHIO NORTHERN UNIVERSITY LAW REVIEW 283 (2011)

Darren Heitner & Jeffrey F. Levine, Corking the Cam Newton Loophole, a Sweeping Suggestion, 2 HARVARD JOURNAL OF SPORTS AND ENTERTAINMENT LAW 342 (2010)

Nancy Hogshead-Makar, Hurricane warning flag for Olympic sports: compliance practices in Biediger v. Quinnipiac University signal a risk to women’s and men’s Olympic sports, 52 BOSTON COLLEGE LAW REVIEW 465-491 (2011)

Justin Hunt, Why single is better: the implications of a multi-entity ruling on revenue sharing and the NFL salary cap, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 17 (2010)

Lee A. Linderman, Note, A congressional carve out: the necessity for uniform application of professional sports leagues’ performance-enhancing drug policies, 84 SOUTHERN CALIFORNIA LAW REVIEW 751 (2011)

Joseph P. Liu, Sports merchandising, publicity rights, and the missing role of the sports fan, 52 BOSTON COLLEGE LAW REVIEW 493 (2011)

David Mark, Comment, Taking one for the team: the persistent abuse of eminent domain in sports stadium construction, 5 FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW 781 (2010)

Michael A. McCann, Antitrust, governance, and postseason college football, 52 BOSTON COLLEGE LAW REVIEW 517 (2011)

David H. Mincberg, Note, Guns, collective bargaining and moral turpitude: Gilbert Arenas and the National Basketball Association, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 43 (2010)

Damon Moore, Proposals for reform to agent regulations, 59 DRAKE LAW REVIEW 517 (2011)

Ryan Murphy, Note, Playing fair in the boardroom: an examination of the corporate structures of European football clubs, 19 MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW 409 (2011)

Blaine V. Roche, Congressional involvement in professional sports’ drug-testing policies: get involved but don’t infringe, 4 PHOENIX LAW REVIEW 489 (2010)

Nicolas Saenz, Note, Sports franchise bankruptcy: a new way for team owners to escape league control? , 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 63 (2010)

Raheel Saleem, Comment, The Olympic meddle: the International Olympic Committee’s intrusion of athletes’ privacy through the discriminatory practice of gender verification testing, 28 JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW 49 (2010)

Ayelet Shachar, Picking winners: Olympic citizenship and the global race for talent, 120 YALE LAW JOURNAL 2088 (2011)

Shannon K. Stevens, Comment, Baseball’s DNA testing policy strikes out: genetic discrimination in Major League Baseball, 412 SETON HALL LAW REVIEW 813 (2011)

Kelly M. Vaughn, Note, First and goal: how the NFL’s personal conduct policy complies with federal antitrust law, 96 CORNELL LAW REVIEW 609 (2011)

John R. Wallace, Note, Discriminatory & disparaging team names, logos, & mascots: workable challenges & the misapplication of the doctrine of laches, 12 RUTGERS RACE & THE LAW REVIEW 203 (2011)

Maureen A. Weston, NCAA sanctions: assigning blame where it belongs, 52 BOSTON COLLEGE LAW REVIEW 551 (2011)

Alfred C. Yen, Early scholarship offers and the NCAA, 52 BOSTON COLLEGE LAW REVIEW 585 (2011)

Monday, August 08, 2011
 
NBA TV Interview on NBA filing charge with NLRB and lawsuit with federal district court

I was interviewed on NBA TV a couple of days ago by Dennis Scott and Matt Winer to discuss the NBA filing an unfair labor practices charge with the NLRB and a lawsuit with a federal district court, both directed at the Players' Association.

Sunday, August 07, 2011
 
In Defense of Baseball's Antitrust Exemption

A draft of my latest law review article, In Defense of Baseball's Antitrust Exemption, which may be of interest to some readers, is now available to be downloaded for free from SSRN. Here is the article's abstract:

This Article challenges the overwhelming scholarly consensus opposing baseball’s historic antitrust exemption on policy grounds by providing the first comprehensive defense of the exemption. The Article does so by advancing two primary arguments: first, it argues that the common criticisms of the baseball exemption are largely without merit. Specifically, given the treatment of the other major professional sports leagues under antitrust law, simply exposing baseball to antitrust liability alone will not yield the benefits that the exemption’s critics believe, and in some cases would actually harm the public interest.

Second, and perhaps more importantly, the Article argues that the existing literature has overlooked significant pro-competitive benefits that result from baseball’s antitrust exemption. Specifically, because baseball is loath to lose its exemption legislatively, Congress has been able to use threats of revocation to help extract a variety of valuable concessions from Major League Baseball (MLB). These concessions provide pro-competitive benefits that would not have been directly obtained through antitrust litigation alone. Perhaps most notably, every single round of league expansion in MLB history has been directly preceded by a Congressional threat to revoke the sport’s antitrust exemption. Therefore, baseball’s antitrust exemption provides Congress with considerable leverage over the sport, ultimately leading to significant, but heretofore overlooked, pro-competitive benefits for the public.

Thus, this Article rejects the existing scholarly consensus, and concludes that baseball’s antitrust exemption ultimately has a net pro-competitive effect.
The draft article can be accessed here. Any comments or feedback on the draft would be much appreciated.

Monday, August 01, 2011
 
Is the NBA Lockout about Class Warfare?

Is the NBA lockout really about class warfare between owners and labor?  In an upcoming article in The Nation, Ari Paul considers that question.