Sports Law Blog
All things legal relating
to the sports world...
Monday, October 31, 2011
Sports (Law and) Economics
As was the case last year, the North American Association of Sports Economists ("NAASE") has organized a number of sessions at the Southern Economic Association's annual conference next month in Washington, DC. The entire program can be found here. The NAASE-sponsored sessions are highlighted here. Several papers will be presented that overlap with sports law. Examples of such topics include doping, salary arbitration, sports betting, and the valuation of elite-level college football programs.
Saturday, October 29, 2011
One Is the Loneliest Number
The glorious baseball season is over. The Eagles are 2 and 4. I am not Canadian. So where is the NBA?
Commissioner David Stern just announced the cancellation of all November games and the Player’s Union Chief, Billy Hunter, announced no new talks are scheduled. What’s the holdup? The league composed of millionaire owners is at 50 per cent of revenues and the millionaire players are demanding 52 per cent.
This circus of a dispute is at a time when millions of Americans are out of work and those who are working find their assets and homes have lost significant value, And at a time when the Occupy Wall Street protesters are being gassed in Oakland for asserting that the 99% of the population has been gouged by the top 1 per cent, whose members include both the owners and players in the National Basketball Association.
Now let’s think you 1 per centers: how can you resolve your differences and return to your jobs of providing entertainment in the form of guys running back and forth trying to put a little ball in a bucket. I am no genius nor a labor lawyer, just a litigator who has settled quite a few cases. Here’s a wild idea. Each of you take that 1 per cent that defines you, add or subtract it, and settle at 51 per cent.
And, by the way, while you’re at it, don’t raise the minimum eligibility age.
Mr. Zola goes to Washington
Warren Zola, a contributor to this blog and a sports law and sports business expert at Boston College's Carroll School of Management, will be speaking to Congress on Tuesday, November 1, at a roundtable discussion entitled "Hype or Hypocrisy? The Impacts of Back-Room Deals, Payoffs, and Scandals in American Collegiate Student Athletics." The discussion will take place between 1 and 3:30 p.m. in the Congressional Visitors Center and Auditorium. Jeremy Schaap of ESPN will moderate. Congressman Bobby Rush, who we've blogged about before, has put together this panel.
It sounds like an excellent event and best of luck to Warren.
Wednesday, October 26, 2011
B.A., Sports Performance, University of Florida*
Sally Jenkins of the Washington Post proposes a very different reform for college sports: Allow athletes to major in "Performance of Sport," building around participation on the team a (hopefully) rigorous curriculum looking at history, law, ethics, policy, and business of sports. Jenkins discusses her proposal on a Slate podcast. Sports, she argues, should be like drama or music or dance or art, all of which are accepted as intellectually and academically worthy enough to be integrated into the life of the school. All are pre-professional majors--athletes (at least stars in top-level football and men's basketball programs) are in college to prepare to be professional athletes, just as theatre majors are in college to prepare to be actors. The similarity extends further in that, like athletes, theatre or music students bring unique extra-academic talents to the mix and spend significant time outside the classroom practicing and honing those skills. A further similarity is that all come to a school less for the school than for the person at the school (a coach or a particular cello teacher) and may be tempted to change schools if that person leaves.
This is an interesting idea. Arguably, major basketball and football schools already do a poor-man's version of this with majors such as "Leisure Studies," although these do not go the full step of awarding academic credit for playing on the team. But is Jenkins right that this would eliminate much of the corruption in college sports? Under her model, "the worth of an athletic scholarship would suddenly be clearer. We could stop worrying about “exploiting” athletes and whether to pay them. Yale drama undergraduates don’t get a cut of the box office — their recompense is first-rate training for the stage. They aren’t exploited. They’re privileged." Jenkins makes a slightly different point that I also agree with: We actually treat student-athletes worse than regular students (including students in performance majors) by not allowing them to work, to perform professionally away from school, make money off their images, etc.
The devil is in the details, as Jenkins recognizes in the Slate conversation. First, I am not sure this takes away the pressure to share the money with athletes (at least football and men's basketball), which still make money and produce fame and recognition for the university. That we are forthright that the students are majoring in being athletes does not change the fact that they are making money for the school and may want a piece of it. And the analogy to theatre or music breaks down because those departments are not connected to billion-dollar television contracts. Are players going to be any happier that they are receiving scholarships but no salary to be football players than that they are receiving scholarships but no salary to be Leisure Studies majors?
The big risk is that some universities would not take this major seriously, that it would be a series of gut courses that will allow student-athletes to slip by without having to do any real work. This somewhat ties into the fact that many athletes are less prepared for college than their classmates and that schools typically give more admissions leeway for athletes than for cello players. So how easy would it be for some schools to create a major to further protect (and keep eligible) its more academically marginal players. On the other hand, all departments have such courses that all students in all majors take advantage of (at Northwestern, there was a basic statistics course in the Math Department nicknamed "Math for Medill," for all the journalism majors using it to satisfy a requirement). And athletics is not the only area or reason for which such admissions benefits are provided.
Jenkins said she has received many responses from university professors who like the idea. It will be interesting to see if the idea catches on. Thoughts?
* I picked UF at random; not trying to pick on anyone.
Tuesday, October 25, 2011
Activist athletes and modern sensibilities
Gerard Magliocca at CoOp argues that NCAA reform will come when one of the NCAA Men's Basketball Tournament finalists refuses to play unless the players receive a share of TV revenues. He continues:
Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?It's a great point and I agree with Gerard it could work. A few broader thoughts.
First, there is precedent for a group of players achieving union goals by refusing to play a major televised game. NBA players achieved their first significant collective victory when they refused to play the 1964 All-Star Game, deciding to strike in the locker room right before game time, with ABC ready to broadcast. Bill Simmons has a nice discussion of this in his Book of Basketball and righly says there ought to be an HBO Sports Documentary on it.
Second, Gerard is right that such a move would require group solidarity among the entire time, including, probably most importantly, the stars of that team. It worked for the NBA players in 1964 because that game featured Bill Russell, Wilt Chamberlain, Jerry West, Oscar Robertson, and Elgin Baylor. Gerard says that the players would "be called all sorts of nasty names by fans and alumni," comparing them with Curt Flood, the man often (although not entirely accurately) credited with bringing about free agency in baseball by refusing a trade to a new team, and who was similarly criticized and shunned for his efforts.
But I am not sure that is true in modern times. Sports reporters and columnists in 1970 were incredibly conservative and old-school, very cozy with the owners and the league's establishment, and therefore very critical of anyone who dared to challenge the league's dominance and control. They took the owners' side in all of these disputes and the "spoiled players" meme was largely a media creation. Most of the criticism directed at Flood came from those reporters. Sports media today are far-more diverse, far-less pro-establishment, and seemingly more progressive. There are more voices being heard in more foca (hello, bloggers), and at least some of these voices will do more than give a knee-jerk rejection of the players' point of view. The same probably goes for fans. Fans dislike the NCAA and many polls show support for players receiving some form of compensation and some right to control the games they play. Fans are more diverse, more progressive, and (importantly) more well-informed about the business and economic side of the game (as a result of the greater number of media writing on these issues). My speculation is that a substantial percentage of fans would be behind the players--certainly more than were behind Flood in 1970.
Third, it also is worth noting that, while Flood was certainly criticized for his stance, he was not blackballed or denied opportunities to play. As the recent HBO documentary showed, Flood came back in 1971 (paid $ 110,000), but only last 13 games, his skills having faded from his one-year layoff and, perhaps, from the pressure and stress of his stance and the criticism he endured. We also have another modern comparison--Maurice Clarett, who unsuccessfully challenged the NFL's draft eligibility rules by trying to leave college and enter the league following his freshman year at Ohio State. After losing his antitrust suit, Clarett was drafted in the third round and signed a four-year contract, although he was waived before the end of training camp because he was out of shape, rusty, hurt, and generally not able to play at that level by then.
These two historical points are important because, as Gerard correctly notes, such a boycott of the Finals only works if the entire team, including its best players, is on board. But that superstar player not only has to worry about losing a "a once-in-a-lifetime chance to play for the national championship;" he also has to worry about hurting his NBA prospects, either by not being seen on the big stage or by being seen as a troublemaker. The former is not a real problem; given private workouts and the other processes teams use in settling on draft choices, performing well in the Final Four is less essential to getting drafter. The latter also is not a real problem, given that the NBA will accept that "troublemaker" if he can play.
Update: Gerard is not the only person talking about this today. Deadspin reports on a petition by the National College Players Association signed by more than 300 football and basketball players, calling on the NCAA to institute a host of reforms, including increasing the total value of scholarships and putting TV money into a trust fund for athletes. The Deadspin story links to a piece by Yahoo!'s Dan Wetzel calling for a team to boycott a lower-tiered bowl game, which would not require the same level of sacrifice as boycotting a BCS bowl or Final Four game, but still will be high-profile enough to get people's attention.
Monday, October 24, 2011
Is Tony LaRussa a better manager because of his legal education?
Could LaRussa's time at FSU Law and studying the bar have helped prepare him to become a big league manager? Does it help him now-a-days? In today's Wall Street Journal, I discuss with Joe Palazzo how LaRussa's legal training might have aided his managerial career:
What he learned in law school wasn't lost on his baseball career, say experts who follow sports and the law. "A good lawyer is someone who is receptive to hearing both sides of an argument and to thinking critically about different perspectives," says Michael McCann, director of Vermont Law School's Sports Law Institute. "He has a track-record of listening to coaches before making a decision, and his legal education may have led to that."Greg Skidmore and Geoff Rapp have previously looked at LaRussa and other coaches/team executives who are law school graduates (click here for Greg's post; click here for Geoff's post). Based their posts and accompanying reader comments, here is a list of other managers/coaches/team executives who are lawyers:
Saturday, October 22, 2011
Catching up with Sports Law Links and Sports Law News
fantastic piece on how the Spirits of St. Louis became the most profitable franchise in sports. Geoff Rapp and UVA Law and Marquette Law Professor Gordon Hylton - who is easily the best historian of sports law - are interviewed for the story.
* I was interviewed on NBA TV to talk about the lockout and legal issues that could emerge. Also discussed this topic on Baltimore WNST.
* What could be the legal fallout of University of Missouri trying to leave the Big 12?
* Scott Judson, Co-Chair of the Entertainment and Sports Law Society at UC Davis School of Law, lets me know that on Wednesday, October 26, his organization will be hosting Woodie Dixon, General Counsel of the Pac-12 to speak about conference realignment and the newly-formed Pac-12 Nextwork. The event is open to the public, so if you're in the Sacramento/Bay Area, it sounds like a great event. For more info, click here.
* Alex Bard of American University Washington College of Law's Sports and Entertainment Law Society, lets me know of this upcoming event on Thursday, October 27:
What: AU WCL's Sports and Entertainment Law Society is hosting a panel discussion regarding athlete-agent relationship and NCAA regulation. The panel will look at the agent-athlete relationship, NCAA regulation of athletes, and the impact of legislation.
Kevin Blackistone from ESPN will moderate the event. Panelists include Howard Shatsky (certified NFLPA agent and WCL professor), Mark Levin (Director of Salary Cap and Agent Administration at the NFLPA), and Patrick Nero (GWU Athletic Director).
For more information please go to http://www.wcl.american.edu/secle/fall/2011/20111127.cfm.* Alex Bard also has a new Note in the Labor and Employment Law Forum titled, "Strength in Numbers: The Question of Decertification of Sports Unions in 2011 and the Benefit of Administrative Oversight". Check it out - it's very timely.
* As always, Dan Fitzgerald has great stuff on Connecticut Sports Law and Darren Heitner and his crew have great stuff on Sports Agent Blog.
Monday, October 17, 2011
Sandra Day O'Connor College of Law at Arizona State University Sports Law Symposium
Should be a great event - great work by student leaders Casey Johnson and Kellen Bradley putting it together:
2nd Annual Conference on Sports and Entertainment Law
The Sandra Day O’Connor College of Law at Arizona State University will host the 2nd annual Conference on Sports and Entertainment Law. Speakers and Panelists from all over the country will present and discuss the most critical issues in the fields of Sports and Entertainment Law. Keynote speaker is President of the Arizona Cardinals Michael Bidwill.
List of Speakers (click for more speaker biographies)
Registration Fees: (includes lunch)
Sunday, October 16, 2011
Why don't more schools help their athletes go pro?
I had a story last week on schools that provide counseling for athletes who go pro, featuring Boston College's Warren Zola (some of you will recognize him from this very site). Zola is a dean at the BC business school, and this is a niche he has carved out for himself after recognizing that many athletes are ill-prepared for the transition. Players like former BC lineman Anthony Castonzo, a first-round pick by the Colts, (pictured) said they wouldn't have been able to navigate the transition without help.
The most interesting part, to me, is how few schools -- about 25 percent, by some estimates -- provide the service. I would think it would be a nice recruiting tool to say to a recruit, "We'd like you to meet Warren. When the time comes for you to go pro, he's here to help you with everything you need." This would play right into the dreams of high schoolers, who all think they are destined for NFL stardom (or NBA, or MLB, etc.). It seems like it would help the schools, too, because having someone who knows the terrain can help avoid recruiting violations.
But only few schools have advisers in house, and some more hire outside consultants to manage the process. Ironically, the issue might be that the NCAA requires the advisers to be independent from the athletic department. While this removes much of the conflict of interest that could arise in the decision whether to leave early, it also takes away the most obvious source of funding for the position.
Zola has written about reform in college athletics before, including this law review article where he spells out the issues in the Professional Sports Counseling Panels, as they're called in the NCAA bylaws.
Wednesday, October 12, 2011
John Calipari and Derrick Rose settle ticket devaulation lawsuit
agree to this settlement with University of Memphis ticket holders who filed a lawsuit claiming that the NCAA's vacating of its 2007-08 Final Four season resulted in the devaluation of their tickets? Color me surprised. This lawsuit probably would have been dismissed; instead, the settlement probably makes more of these lawsuits likely to be filed. Mark Conrad and I speak with Kyle Veazey of the Memphis Commercial Appeal about it. Here are excerpts:
* * *
The three Memphis-area attorneys who pursued former University of Memphis coach John Calipari and guard Derrick Rose with threats of legal action probably haven't inspired a new trend, sports law experts say.
But Michael McCann, a professor at Vermont Law School and sports law columnist at SI.com, wouldn't rule out at least a few attempts. "Other fans are going to see this and say 'It sort of worked there,'" McCann said. "They were able to secure a settlement. I don't think it's going to give rise to courts sanctioning this, but I think it could give rise to others wanting to file a lawsuit."
That's how it paid off in May 2010 for local attorneys Martin Zummach, Frank L. Watson III and William Burns. They threatened a lawsuit against Calipari, Rose and U of M athletic director R.C. Johnson, claiming the NCAA's vacating of its 2007-08 Final Four season resulted in the devaluation of their tickets.
Calipari and Rose agreed to pay the attorneys $100,000. Calipari also agreed to donate $232,000, the approximate after-tax value of his bonuses connected with the season, to the Tiger Scholarship Fund. Rose agreed to consider making a donation sometime before 2015.
Conrad noted that though the specifics of the Memphis case seemed unique, ticket-holder lawsuits aren't altogether uncommon. He said they're usually unsuccessful, too.
McCann said he anticipated that the case, if it had ever been filed, would have been dismissed.
But even with the perceived unlikelihood of its success, such a case would have its costs -- "at the very least, stress, cost, retaining a lawyer, time. Time for a coach, obviously, is really valuable."
Monday, October 10, 2011
New York Law School Third Annual Sports Law Symposium
I look forward to joining many friends and colleagues at New York Law School's upcoming sports law symposium. It should be an awesome event. Great work by Elliot Solop, founder/EIC of The Sports Tomato, in putting it together.
The New York Law School Institute for Information Law and Policy and the New York Law School Sports Law Society
The Third Annual Sports Law Symposium
Date: Friday, November 4, 2011
Location: New York Law School, 185 West Broadway, NY
Rooms: 2nd Floor Events Center, W402, W420
Industry leaders will engage in panel discussions involving current legal issues in the sports industry including the legal infrastructure of developing and growing professional sports leagues, amateurism issues in collegiate sports, intellectual property management of sports and entertainments brands, and athlete agent regulation and enforcement. Panelists will also offer perspective on breaking into the legal side of the sports industry. A networking reception will follow the day’s events.
-Panel 1: Overview of Current Legal Developments in the Sports Industry
-Breakout Session 1: Financial and Tax Considerations in Representing Professional Athletes
-Breakout Session 2: Intellectual Property Issues in Sports
-Breakout Session 3: Athlete Agent Regulation and Enforcement
-Panel 2: Legal Infrastructure of Developing and Growing Professional Sports Leagues
-Panel 3: Amateurism Issues in Collegiate Sports
-Panel 4: Breaking Into the Sports Industry
Jason Belzer - President, Global Athlete Management Enterprises, Inc.
Andrew Bondarowicz - President, Aregatta Group, Inc.
Allison Cantor - Assistant Counsel, ESPN
Mark Conrad ’81 - Associate Professor of Business Law, Fordham University, Adjunct Professor of Sports Law, New York Law School
George Daniel - Commissioner, National Lacrosse League
Marc Edelman - Assistant Professor of Law at Barry University’s Dwayne O. Andreas School of Law
Dimitrios Efstathiou - Senior Counsel, Major League Soccer
Andrew Fine - Director of Marketing and Broadcasting, RLR Associates
David Fish - NFLPA Certified Agent, Adjunct Professor of Law, New York Law School
David Gross - Commissioner, Major League Lacrosse
Darren Heitner - Founder of Sports Agent Blog, President of Dynasty Sports LLC
David Mayer - Counsel, ESPN
Kevin Matz - Managing Member, Kevin Matz & Associates PLLC
Michael McCann - Sports Illustrated Legal Analyst, NBATV Legal Analyst, Professor of Law, Vermont Law School
Tim McIIwain ’95 - Partner, McKenna McIlwain, LLP
Robert Raiola - CPA, Sports & Entertainment Group Manager at Fazio, Mannuzza, Roche, Tankel, LaPIlusa, LLC
Katherine Salisbury - President, Friedman & Salisbury Sports Management LLC
David Soskin ’08 - Assistant Counsel, ESPN
Mike Zarren - Assistant General Manager and Associate Team Counsel, Boston Celtics
Warren Zola - Chair, Professional Sports Counseling Panel, Boston College
CLE credits will be offered.
For more information on the event, please contact Elliot Solop at firstname.lastname@example.org.
Saturday, October 08, 2011
Raiders owner Al Davis dies at 82
Al Davis, the owner of the Oakland-Los Angeles-Oakland Raiders, has died, ending one of the more remarkable careers in sports _ and sports law. He was a mixture of George Steinbrenner (who was also born on the Fourth of July), Mark Cuban, Charlie Finley and Vince Lombardi -- a coach, owner, businessman, general manager and fan with an insatiable desire for winning. But he was also a little bit Curt Flood (or at least Andy Messersmith) who was willing to take on his fellow owners in court, suing for the right to move his team from Oakland to L.A. and back, as told in this obituary by my AP colleague Josh Dubow, who covers the team.
Davis was also the AFL commissioner before the merger that helped shape the modern NFL. So I ask: Is there another figure who is responsible for as much sports jurisprudence?
Friday, October 07, 2011
The "Karen Murphy Case" - European Soccer, Television Broadcasts, Competition Law, and Decoder Cards
Below is a guest post by Tassos Kaburakis.
On October 4, 2011, the European Court of Justice (ECJ) delivered an important decision in a consolidated case dealing with broadcasting rights, competition, and European Union (EU)-wide intellectual property issues [Football Association Premier League and Others (C-403/08 and C-429/08)… a.k.a. the Karen Murphy case].
Several pub owners in the United Kingdom (UK) have been circumventing the exclusive license, which the Football Association Premier League (FAPL) has signed with BSkyB and ESPN (£1.78 billion for the rights to broadcast Premiership matches in the UK from 2010 to 2013). A Sky subscription that would allow public viewing of FAPL games would cost approximately £700*. The pub owners (including Karen Murphy) opted not to pay the high fees and instead purchased foreign satellite decoder cards and individual subscription cards from Greece, for a fraction (10%) of the Sky subscription cost.
Importantly, the ECJ found no justifications on grounds of public policy for such restrictive practices. On one hand, the Court found no intellectual property rights by means of EU-wide Copyright for football matches themselves (albeit still protectable under member state law), rather only found particular aspects of the broadcasts copyrightable, e.g. the FAPL anthem, highlights, and various graphics. For such protectable aspects of a broadcast, one still needs to seek permission from the rights’ owner prior to public viewing. On the other hand, such restrictive practices were not justified either on grounds of protecting sporting interests, such as attracting game attendance, as other means (i.e. “closed periods” during which contracting parties would not broadcast Premiership games to encourage attendance) may accomplish such goals in less restrictive fashion than complete preemption of cross-border services’ utilization.
The Court’s use of the “specificity of sport” Art. 165 of the Treaty establishing the Functioning of the European Union (TFEU) is significant. Practices in favor of sport organizations should not go beyond what is necessary to accomplish the goals pursued, and in any event the Court assumes a position where the balance generally should lean in favor of upholding fundamental EU Law principles.
Thursday, October 06, 2011
Talking NBA Lockout
Tired of the NBA lockout? If so, you probably won't enjoy my interview with Chris Townsend of 95.7 FM San Francisco. But if not, please check it out.