Sports Law Blog
All things legal relating
to the sports world...
Wednesday, November 30, 2011
A place for this blog and its EIC
Slate's weekly sports podcast "Hang Up and Listen" leads off this week with a discussion of the end of the NBA lockout. One of the points of discussion is the failure of the sports media to fully grasp and accurately cover the bargaining process. Not being experienced in how labor and litigation negotiations work, reporters fall for dramatic, tragic, and pessimistic narratives because, to their eyes, the process appears to be failing. They specifically note Bill Simmons' calls for both David Stern and Billy Hunter to be fired for their mismanagement of this process, a sentiment widely shared by fans but not by experienced labor experts (who recognize legal posturing as all part of the negotiation process).
If this assessment is accurate, it presents a good argument for this blog and, in particular, for Mike's work on ESPN and NBA-TV. They provide voice that can report and opine on the legal issues from a real position of experience, avoiding the narrative traps.
Tuesday, November 29, 2011
Time for Transformative Change in Intercollegiate Athletics
Well, I've spent the better part of the fall semester thinking and talking about change in intercollegiate athletics. I figured it was time to put my ideas and arguments down on paper and, as such, wrote a brief article, summing up my thoughts and, more importantly, making some recommendations.
The essay was just posted on Huffington Post here.
In sum, I argue that we need to address three key areas: 1) Academics & Integrity, 2) The Interests and Experiences of Student-athletes; and 3) Accountability.
Let me know what you think...and help me improve my proposals.
Monday, November 28, 2011
NBA TV Interview: Remaining Steps
I joined David Aldridge, Reggie Miller, Dennis Scott and Matt Winer tonight on NBA TV to talk about remaining steps for there to be NBA basketball on December 25.
International Sports Law Review Pandektis
The most recent issue of the International Sports Law Review Pandektis, an IASL-sponsored journal, has been published. A number of articles caught my eye that Sports Law Blog readers may be interested in. Of particular note is the article published by Stephen Argeris pertaining to the MLB draft, which was presented earlier this year at the MIT Sloan Sports Analytics Conference and last year at the International Sport Law & Business Conference.
The complete table of contents for the most recent issue can be found here.
Saturday, November 26, 2011
The NBA Lockout is Over!
NBA TV this morning (live, at 4 a.m.) talking about next steps. Glad to have games back!
Update 4 p.m. Saturday: I have a new column for SI: NBA players, owners may still run into problems with tentative deal
Friday, November 25, 2011
NBA and Players Talk Litigation Settlement: Will it lead to new CBA?
on NBA TV this afternoon to talk about owners and players having litigation settlement talks, how they can convert those talks into a new CBA, and why there is reason to be optimistic.
Could David Boies be the X Factor for players and help them reach a deal with NBA that Billy Hunter, Derick Fisher and Jeffrey Kessler couldn't?
More known for his litigation skills than settlement skills, this could become Boies's finest hour.
Thursday, November 24, 2011
Sports as protected expression?
For all my writing on fan speech, this is a place I never thought to go: Last week, UFC and several UFC fighters have challenged New York's ban on MMA exhibitions and profiting from those exhibitions on, among other things, First Amendment grounds. The argument is that the state is targeting the message of MMA through a commercial ban, even though the activities themselves are lawful in a gym. The plaintiffs are represented by Barry Friedman, a great con law scholar at NYU (and, I am guessing, an MMA fan).
Friedman has tried to argue that MMA is mixed martial arts, so is an activity that is more uniquely performative than other sports (more akin to dancing than basketball), so it does not necessarily follow that all sports are expressive. Or maybe all sports are expressive, with whatever legal issues that may create.
As I said, I had never thought to go here. But if sport is expressive, then I believe my arguments that watching and cheering for sports gains added strength.
Tuesday, November 22, 2011
Real-Life Fantasy Sports Law: Enter the Lobbyists
Back in August, I blogged about the proliferation of the fantasy sports industry and whether certain fantasy sports games might violate state gambling laws. I also posted a draft of my newest law review article: "A Short Treatise on Fantasy Sports and the Law."
Since then, the Fantasy Sports Trade Association ("FSTA") has announced the hiring of Travis McCoy, a former aid to Senator John Boehner (R-Ohio), to serve as its first official lobbyist. According to USA Today, the FSTA "still is deciding what states it will target first."
The FSTA's hiring of a lobbyist is noteworthy on several levels. First, it signals an acknowledgement by the industry that certain state gambling laws are unfavorable to fantasy sports. In addition, it shows the early stages of collective action within the fantasy sports industry.
It will be interesting to see if the FSTA’s lobbying efforts will target only state gambling laws that disallow fantasy sports leagues, or if they will also target state laws that limit fantasy websites' administrative fees. For example, Montana law currently limits fantasy sports websites to charging 15% in administrative fees. This limit is probably unpopular with fantasy sports businesses. However, it is intended to protect fantasy participants.
Monday, November 21, 2011
NBA Players drop lawsuit in California - focus on lawsuit in Minnesota
A little bit of litigation news tonight. I discuss it on NBA TV.
Also, it was announced that the Honorable U.S. District Judge Patrick J. Schiltz will be the judge for Carmelo Anthony et al. v. NBA. Schiltz, a graduate of Harvard Law School, is a former clerk to U.S. Justice Antonin Scalia and former professor at the University of Notre Dame Law School. A practicing attorney in Minnesota in 1995, Schiltz represented the T-Wolves in case re: relocation of team to New Orleans. In the case, the NBA Board of Governors rejected sale of T-Wolves to investor group, "Top Rank", in New Orleans. NBA then sued both T-Wolves and Top Rank, seeking declaratory order from court that T-Wolves owners could not sell team to Top Rank w/o league approval. Schiltz represented T-Wolves, which eventually joined the side of the NBA in the litigation. Not only was he lawyer in litigation over T-Wolves failed relocation to New Orleans, but Schiltz represented NFL in several cases, including Powell v. NFL and McNeil v. NFL. McNeil helped lead to new CBA between NFL and NFL players.
New Sports Law Scholarship
Recently published sports law scholarship includes:
Jessica L. Adair, In a league of their own: the case for intersex athletes, 18 SPORTS LAWYERS JOURNAL 121 (2011)
University of Baltimore Law Professor Dionne Koller on Penn State Scandal
There have been a number of provocative and well-argued commentaries on the Penn State scandal. University of Baltimore School of Law Professor Dionne Koller provides another one and from a vantage point that has not been raised: It's a Guy Thing at Penn State, and That's a Problem
Temple Law Professor Jermei Duru on Penn State scandal
Great piece on The Post Game by Professor Jeremi Duru on the Penn State scandal - Explaining Penn State Scandal To My Dad.
Sunday, November 20, 2011
NY Times Article on becoming a law professor: Is it like a pro sports draft?
Very provocative article today by David Segal of the NY Times. Among many points critical of law school teaching and of allocation of law school resources - and students' tuition dollars - on arguably irrelevant or ponderous legal scholarship, he makes an apt comparison between how one becomes a law professor and how a prospect participates in a pro sports draft:
The Prestige GameTo read this article, click here.
NBA's "one and done" rule: if lockout persists, will someone challenge rule?
Tom Reed of the Cleveland Plain Dealer explores the possibility of the NBA holding a draft during an extended lockout. The draft and particularly the "one and done" eligibility rule -- which requires that U.S. players be 19-years-old and one year removed from high school -- would be subject to antitrust challenge, as they would no longer be borne from collective bargaining. Reed interviews Alan Milstein, Sonny Vaccaro and me on the topic.
For a great discussion on the empirical analysis of players who have jumped from high school to the NBA, see Zach Lowe's recent SI column.
Related point: there is a very good chance that when the lockout is ultimately resolved, and a new CBA is in place, the eligibility rule will be raised to 20-years-old and two years removed from high school. Whether that will motivate players to skip what would be their freshman and sophomore years in college to play professionally in Europe for a couple of years remains to be seen.
Friday, November 18, 2011
The Penn State Debate: Are NCAA Sanctions Inevitable?
Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on.
By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.
The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1 lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw 220.127.116.11 states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”
To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.
Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.
Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating, “We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.
Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.
Sports Law Internship Opportunity
The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:
Thursday, November 17, 2011
Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)
By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:
- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.
(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.
One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.
In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.
By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.
For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.
(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case
In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."
While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.
While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.
For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.
Wednesday, November 16, 2011
Questioning the NBA Players' Litigation Strategy
NBA players filed two different antitrust lawsuits against the NBA owners on Tuesday, one in the U.S. District Court for the Northern District of California, and one in the District for Minnesota. Although I haven't yet been able to track down a copy of either complaint online, the players' attorney David Boies has stated that he doesn't intend to pursue a preliminary injunction lifting the NBA's lockout in either case. Boies, of course, previously represented the NFL owners in the Brady v. NFL litigation this past spring, where he successfully persuaded a majority of the Eighth Circuit panel that a preliminary injunction blocking a lockout is improper under the Norris-LaGuardia Act.
Despite the Eighth Circuit's decision in Brady, I can't help but think that the NBA players are making a mistake by not seeking a preliminary injunction to lift the lockout. Although the NFL players ultimately lost on the injunction issue at the Eighth Circuit, they were nevertheless able to convince the district court judge, as well as one of the three appellate judges, that a preliminary injunction lifting a lockout could issue under the Norris-LaGuardia Act. And even the majority of the Eighth Circuit panel believed that injunctive relief might be appropriate to temporarily lift the lockout for at least a segment of the players (i.e., those not currently under contract with an NFL team). Therefore, there is a legitimate chance that a different judge (and perhaps a panel of the Ninth Circuit) would be willing to grant the NBA players preliminary injunctive relief preventing the NBA owners from continuing their lockout.
Given this possibility, I don't see why the NBA players wouldn't at least seek a preliminary injunction. A court order lifting the lockout would give the players perhaps the greatest bargaining leverage they could hope to achieve from a lawsuit against the owners. In turn, an injunction would provide players with the best chance of reaching a favorable resolution of the dispute in time to save at least part of the season. Meanwhile, the potential downside of seeking a preliminary injunction is minimal, since a refusal by the court would merely maintain the status quo.
Consequently, I don't understand the logic behind not seeking a preliminary injunction. What am I missing here?
Tuesday, November 15, 2011
New Sports Illustrated Column: Legal Implications of Jerry Sanduskys' Interview with Bob Costas
I have a new SI column on the Penn State scandal. Here is an excerpt:
The problem with Sandusky's legal strategy is not only that a growing number of men independently charge that Sandusky raped them while they were children, but that also admitting to strange and lewd behavior with children would likely make jurors highly suspicious of him and more inclined to convict him of sexual assault. Put differently, it's hard to believe there is a merely a misunderstanding between Sandusky's recollection of the facts and that of the alleged victims when Sandusky freely admits to showing terrible judgment.To read the rest of the column, click here.
Monday, November 14, 2011
Breaking News: NBA Players disclaim interest:: Legal Analysis
The 2011-12 NBA season just became less likely. I talk to NBA TV about what today's big news means. And then later in the evening I spoke with Dennis 3D Scott, Stan Kasten, David Aldridge and Matt Winer.
Also, here is my Sports Illustrated video on this topic, with dramatic music in the background:
Saturday, November 12, 2011
Follow the Money
Here's the question. Is the Penn State scandal a sports law issue or simply a criminal matter? Consider this scenario. A young muscular graduate student in Biology wanders into a lab and sees an aging Assistant Professor raping a ten year old boy. Is there any doubt the perpetrator, if aware he had been seen, would immediately stop, the witness would intervene, the cops would be called, the Professor would be put away, and the University and its President would not be implicated in the least?
Why did that not occur here? Only one answer: the money generated by the plantation system known as the NCAA. For Penn State that is 100 million dollars, 75 million in football revenue and 25 million in assorted generic memorabilia like sweatshirts mostly attributed to the football program.
One telling fact that has not been given much attention. Look at the chain of command that failed miserably in this case. McQuery tells Paterno the coach. He tells Curley the Athletic Director. Who does he tell? Gary Schultz. His title? Vice President of Business and Finance. Among the many unanswered questions, who else knew? Typically the AD must report any potentially troubling incidents to the Conference Commissioner. Did Curley do that here? If not, why not?
UPDATE from Mike McCann: Below are some excellent comments responding to my Facebook post on Follow the Money:
Mark McKenna [Notre Dame Law Professor]
Is there any doubt the grad student would intervene? Absolutely there is. There has been way too much of the "this is because it was football." if anyone doesn't think a grad student dependent on a star faculty member for his future might have acted just like McQuery did, they are kidding themselves. And kidding oneself this way is dangerous because it allows all of us off the hook too easily by making this seem like a problem of some "other" culture.
Afi Johnson-Parris [Attorney in Greensboro, North Carolina]
Is it too much to expect that he would have had even an ounce of courage to make a noise from the shadows, flicked the lights, called out "is anyone there?," something, anything to make it stop, anything but walking away. How do you just walk away? I agree, that has less to do with football than it does to do with courage. Funny, they're always saying that courage is what football is about.
No, Afi, clearly it's not too much to ask. I wasn't in any way making an excuse for him. I was only pointing out that lots of people have made themselves feel better about this situation by pretending that this is just something about the culture of some institution rather than a sad, but universal, fact about human beings. They protect themselves and the institutions they believe in first. See also, the Catholic Church.
Not that this would have likely stopped what happened at Penn State, but I think a better model to college sports would be for there to be an independent branch of a school, sort of like an independent federal agency that's to some extent insulated from the executive branch, that regulates the athletic departments. It may moderate the "winning at all costs, everything else be damned" approach we see at too many schools. In terms of Mark and Afi's larger points, I agree that this story is about much more than why persons in a big time sports program respond so poorly to a fellow human in crisis. It also says, as Mark notes, that allegiance to institutions too often trumps allegiance to basic morality. Perhaps it also says that instead of these persons lacking humanity it's that humanity is less than what we expect or hope for.
I can't bring myself to "like" your last post, Mike, but the last sentence is right on.
Mark, I just have to disagree. I do not think it is the norm for someone to not do anything when confronted by an old man raping a ten year old boy. Even if it is a superior, you would have to believe in an academic setting the grad student would believe the chairman of the department and everyone else would come down hard on the offender. Mainly because there is nothing to lose. That's the difference here. There was something to lose if they didn't cover it up. Millions of dollars. Incredibly, all they did was take away his locker room privileges, presumably so he could do his business elsewhere just not in the Penn State locker room.
No, I wouldn't believe that people would act differently in another academic setting. People act selfishly whenever there is a lot for them to lose. There is a ton to lose when a graduate student reveals something about a supervisor they depend on (and grad students depend enormously on their advisors). There is a ton to lose when speaking up would force you to confront the failures of an institution you believe in. The statistics on abuse are staggering, and they couldn't be even remotely right if you were right that people generally speak up and stop things. They don't. I guarantee you that there has been undisclosed abuse in virtually any organization. This is not an apology - it's absolutely the wrong thing. But I think we delude ourselves by pretending it couldn't happen in our own back yard.
Jason Chung For me, the fact that people some people honestly say that they would have also walked away or merely alerted their superior when confronted with a similar situation is the greatest indictment of our culture.
Alan Milstein And your analogy to the Catholic Church doesn't help your point. The same forces are at work. But outside of such institutions like Penn State and the Catholic Church, where most of us reside, I have to believe most people would do the right thing and stop the brutalization. It's a ten year old boy, for God's sake. People by and large are good not bad, moral not immoral, caring not uncaring.
Friday, November 11, 2011
New York University School of Law Sports Law Panel on College Athletics
Sports Law Blog contributor Alan Milstein -- who I hear will have some provocative commentary about the NCAA and treatment of college athletes to share with the audience -- will be joined by other terrific panelists.
Here's the group:
* Craig Esherick - former head coach of the Georgetown Hoyas men's basketball team and head of the Sports Management program at George Mason (also a lawyer)
* Alan Milstein - nationally-recognized sports litigator (has represented Allen Iverson, Eddy Curry, Allen Houston, Richard Hamilton, Maurice Clarett and others in litigation matters) and co-managing shareholder of Sherman Silverstein Kohl Rose & Podolsky
* Dr. Constance Zotos, former Athletic's Director of Drew University
* Seth Wickersham, writer for ESPN The Magazine
* Professor Robert Boland from the NYU School of Continuing and Professional Studies will be moderating the discussion.
Thursday, November 10, 2011
Two posts on Penn State
I have two posts on the Penn State mess over at Prawfs. I thought I'd link to them, rather than reposting.
Here, I question what the students were protesting about at Penn State last night and what they are thinking in objecting to Paterno's firing in this circumstance. Here, I question the use of the word "technicality" to describe a likely argument from the indicted Penn State officials that in 2002 they had no obligation to report a second-hand report of child molestation.
Feel free to post comments there or here.
University of Mississippi School of Law Sports Law Symposium (this Friday 11/11/11)
I will be speaking, presenting my latest law review piece dealing with Social Media and the NCAA, this Friday, November 11th at the law school at Ole Miss. I will have a draft up on my SSRN page soon, tentatively titled: Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation. See below for the official invite:
"The Mississippi Sports Law Review would like to invite you to its inaugural sports law symposium. The symposium will take place on Friday, November 11th at the University of Mississippi School of Law. Lunch will be served at Noon and the symposium will begin at 1 p.m. The symposium will address the issue of Social Media and Intercollegiate Athletics, and will be accompanied by an issue of the Review to be released later in the winter.
The following authors will present their articles at the symposium:
John T. Wendt & Peter C. Young – Reputational Risk and Social Media
Jerry Parkinson – Impact of Social Media on NCAA Infractions Cases
Mary Margaret “Meg” Penrose – Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media
Timothy Liam Epstein - Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation"
We hope you can make it.
Wednesday, November 09, 2011
New Sports Illustrated Column: Did Joe Paterno Break the law???
new column for Sports Illustrated on the possibility he will face criminal charges and tort claims. Here's an excerpt:
* * *
These inconsistencies related to Paterno's and McQueary's statements about "Victim 2" in the grand jury's statement of facts. According to the grand jury's findings of fact, McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno.
After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy.
* * *
Off Pitch: What Glee Can Teach Us About College Athletics
In trying to explain the issues within college athletics to my 15 year old daughter, I realized an analogy might make sense. What better way to connect than by referencing Glee.
I posted the following essay on the Huffington Post, which uses Glee to describe many of the issues in college sports.
Let me know what you think of this LIGHTHEARTED attempt.
[Also, before I get the hate email, I recognize that in reality, those competing in drama and glee clubs around the country would overwhelmingly jump at the opportunities of the top student-athletes within the sports of football and men's basketball.]
Tuesday, November 08, 2011
Understanding the NBA Players' Decertification Strategy
Mike wrote about this topic last week for Sports Illustrated, and I now have a new column up over at the Huffington Post analyzing the complicated web of legal issues raised by the potential decertification of the NBA Players Association. Here's an excerpt. You can find the full column here.
If the players go forward with the decertification petition, is the 2011-2012 season completely lost?
I write this with some trepidation. So I'm going to begin with a disclaimer: I am not trying to suggest anything about what is right or wrong or what should be treated as right or wrong. I just want to think about how we treat certain speech. Please keep that in mind in any responses. OK, I just set myself up for some very high (or low) expectations, so here we go.
Steve Williams is a professional golf caddy who worked for Tiger Woods for more than a decade (earning a lot of money, as well as a reputation as being Woods' overbearing bodyguard/hitman on the course). Woods unceremoniously fired Williams last summer, a move over which Williams is still just a bit bitter. Williams caught on with a golfer named Adam Scott (who himself has a rivalry and tension with Tiger); Scott won a tournament earlier this year, after which Williams preened and called it the greatest victory of his life. Over the weekend, at a caddie celebration dinner, Williams explained "I wanted to shove it up that black arsehole." Word of what Williams said at the closed, "off-the-record" event quickly got out. Williams issued a typical famous-person denial by the next morning, saying "I apologize for comments I made last night . . . I now realize how my comments could be construed as racist. However, I assure you that was not my intent. I sincerely apologize to Tiger and anyone else I've offended."
Williams is being criticized for making a "racist" remark and he used that term in his sort-of apology. But should his remark be considered racist and why or why not? Do they suggest he is racist? Or are the remarks, and therefore Williams, just stupid?
The upshot is that Williams is in trouble for using a bad modifier. Had he simply called Woods an "arsehole," people would have thought Williams was an obnoxious ass, but not racist. Same thing had he called Woods a "cheating arsehole" (in reference to Woods widely reported infidelity) or a "sex-addict arsehole" (in reference to Woods reportedly seeking treatment for sex addiction) or "washed-up arsehole" (in reference to Woods struggles on the golf course). But Williams mentioned, in a purely descriptive way, the unquestioned fact that Woods is (part) black. And the narrative is that this modifier made his comments, and perhaps him, racis. Indeed, Williams' apology was all about his own state of mind--that he did not have racist intent in what he said and therefore is not racist.
But Williams did not use a racial slur. He did not attribute his dislike of, or anger at, Woods to Woods' being black (as opposed to being an arsehole). He did not make a statement about what type of person Woods is because of his race. He did not suggest Woods is inferior or incapable because of his race. He did not make a comment grounded in any racial stereotypes (compare when another golfer was criticized for joking about Augusta National serving soul food at the tournament dinner after Woods won the Masters). Williams made an observation and stated a fact--Woods is black. He also is, in Williams' view, an arsehole. And, therefore . . .
So that has been the change in our discourse: We have made the mention of race (along with other characteristics, such as ethnicity, religion, gender, etc.) improper even as a purely factual matter when criticizing someone. You can call someone a #$*&% with relative impunity; you no longer can call him a [Race/Gender/Ethnicity/Religion] #$*&%. And doing so tags the speaker as racist.
My best guess at a justification is that because race is (or should be) irrelevant to our opinion of someone, mentioning race serves no purpose. Thus, mentioning it, even as a factual modifier, calls attention to the target's status as a member of a minority or historically weak or disempowered group. The use of the modifier highlights the target's "otherness" or singleness in society. Williams would not have called a white golfer a "white arsehole", because emphasizing whiteness does not call up that otherness. Racializing the insult makes that insult worse by calling up and highlighting that otherness, even if that otherness is merely a descriptive modifier and not the heart of the insult. Or maybe the explanation is slightly different: Because race is irrelevant, anyone who mentions actually is using it as the basis of the opinion. In other words, Williams dislikes Woods because of his race (and not because of his arseholeness), otherwise he wouldn't have mentioned it.
I cannot emphasize strongly enough that I am not defending what Williams said or did. I only am trying to consider how and why we characterize the act a certain way.
Sunday, November 06, 2011
Live from New York it's . . . the NBA Lockout
I've been covering the NBA lockout for NBA TV the last couple of days in the Sheraton Hotel on 53rd and 7th avenue in NYC, where the meetings have been held. Here are a couple of videos: Primer on Decertification and Reaction to failed meetings.
Friday, November 04, 2011
Call for Papers: Harvard Journal of Sports and Entertainment Law
The Harvard Journal of Sports and Entertainment Law is soliciting articles from students, legal academics and practitioners for our Spring 2012 Issue. All sports, entertainment or intellectual property related submissions are welcome. Submissions should be no more than 15,000 words. We encourage authors to incorporate legal analysis as well as policy recommendations into their article. Please send submissions to firstname.lastname@example.org.
Here's an excerpt of my new column for SI on the growing desire of certain NBA players -- and their agents -- to decertify the union and sue the NBA on antitrust grounds. Could mean the cancellation of the 2011-12 NBA season:
In terms of its legal arguments, the NBA may be poised to offer more persuasive reasoning for the legality of its lockout than the NFL could muster for its own lockout. One key factor in a legal analysis of whether a lockout should be enjoined is the irreparable harm to the locked out employees. Unlike NFL players, who had nowhere else to play professional football during the lockout and some of whom would have never returned to the NFL had the 2011 season been canceled, some NBA players have already signed lucrative contracts with teams in foreign basketball leagues. The NBA can maintain that if players can sign to play abroad, then a lockout will not cause their professional basketball careers irreparable harm (or at least will cause much less harm than NFL players suffered/would have suffered). In response, the players would likely contend that playing abroad, and living in a foreign country (and possibly relocating one's family there), constitutes a materially different experience than having an NBA career and living in a U.S. city. Plus, many NBA players have not been able to find roster spots abroad.
Thursday, November 03, 2011
new column for SI on Frank McCourt agreeing to the sale of team:
* * *
The ability of Selig to take over the Dodgers and effectively kick out its owner will not go unnoticed by the 29 other ownerships groups. The message to them is clear: They better run their businesses profitably or the commissioner can, at his discretion, intervene.
The Dodgers, moreover, are far from the only franchise that has experienced financial difficulties in recent months. New York Mets' owners Fred Wilpon and Saul Katz, defending against a massive lawsuit brought by victims of Bernie Madoff, are likewise having problems. Almost one-third of the league, in fact, exhibits some level of difficultly in maintaining financial soundness: In June, the Los Angeles Times reported that nine franchises -- the Dodgers, Mets, Baltimore Orioles, Chicago Cubs, Detroit Tigers, Florida Marlins, Philadelphia Phillies, Texas Rangers and Washington Nationals -- were in violation of the league's debt services rules. While it can be misleading to take a snapshot of teams' financial situation at any one time, and grouping nine teams together doesn't indicate that some are much worse off than others, a number of ownership groups do not appear to be keeping pace with league requirements. Given Selig's success in taking over the Dodgers, perhaps he will now feel emboldened to threaten other teams that they better get their acts together or they, too, risk league intervention.
MLB players are another interested party in the interplay between team finances and enforcement of league financial rules. Should teams become more fearful of league intervention, it is very plausible that some of those teams will spend less on player salaries and be less active in the free-agent market. More cautious spending by teams could have the effect of curbing salaries; if teams agree with one another to spend less, they open themselves up to charges of collusion. With MLB's collective bargaining agreement set to expire in a little over five weeks (Dec. 11), expect the topic of team finances and their relationship to player payroll to emerge as a key issue in CBA discussions.
Wednesday, November 02, 2011
NBA age limit on the back burner
Maybe more so than any other topic, age limits in the NBA and NFL have been a focal point on this blog. Zach Lowe of Sports Illustrated reports that the current limit - 19 years old, plus (for U.S. players) one year removed from high school - is on the back burner in discussions between the NBA and the players. Zach also cites the research of several of us. Here is an excerpt:
The rule requiring American players to be at least 19 years old and one year removed from high school before entering the NBA draft was once among the league’s hottest-button issues. The age limit, collectively bargained in 2005, has resulted in prominent one-and-done players such as Kevin Durant and John Wall spending a season as hyped-up college stars, building a brand and then entering the NBA as household names.To read the rest, click here.
Violence and Aggression in Sports: An Economic Approach
Two years ago, The Journal of Criminal Law & Criminology had a special issue devoted to "Sports and Criminal Law." Three articles were included - one by Jeffrey Standen, one by Geoffrey Rapp, and one co-authored by Janine Young Kim and Matthew Parlow. I read all three and learned a lot. Collectively, the articles looked at violence in sport from a decidedly legal perspective.
A new book edited by Todd Jewell (part of Springer's book series on sports economics, management, and policy edited by Dennis Coates) looks at violence and aggression in sports from an economic angle. The table of contents highlights the variety of sports and methodological approaches that are covered. Dave Berri and I co-authored a chapter in the book entitled "Crime and Punishment in the NBA." The abstract is below.
This chapter investigates the overlap between National Basketball Association (NBA) referees, the league’s on-court rule enforcers, and the impact of player violence and aggression on individual salary, team wins, and team revenue. The authors’ meta-analysis highlights emerging research on the role of referees in regulating the sport and describes systematic referee bias in connection with race, league profits, and social pressure in the literature. More narrowly, and in contrast to several high-profile media reports, the authors unearth little to no evidence of NBA referees being biased against specific players, coaches, or team owners. With personal fouls as a proxy for player-level aggression, the analysis finds that players who commit more fouls earn lower salaries and hurt their respective team’s chances of winning. Using the high-profile example of Shaquille O’Neal, the authors also demonstrate how O’Neal’s inability to make free throws had a detrimental impact on how many wins he helped produce for his team and a negative effect on his team’s revenue. Such results reveal the overlapping tension between the NBA’s player discipline protocol, efforts toward referee consistency, and certain marketing and public relation goals the league may have.
For an additional resource, see Mike McCann's 2005 study on the relationship between education level and arrest propensity of NBA players.
Tuesday, November 01, 2011
NBA TV Interview: Will the NLRB help end the lockout?
I joined Steve Smith, Matt Winer and Brent Barry on NBA GameTime to discuss the latest in the NBA lockout and whether the NLRB could play a key role in resolving the dispute.
West Virginia Claims Big East Breached Fiduciary Duties
To try to escape from the Big East without waiting 27 months, West Virginia University has filed suit against the Big East Conference. The central claim in the lawsuit, which can be read here, is that the Big East breached fiduciary duties owed to West Virginia and other football schools.
The complaint itself is fairly vague in regard to the exact fiduciary duty the Conference is thought to have breached. A football conference is a joint venture, and its members presumably owe fiduciary duties to one another (though perhaps liability is limited by the terms of a Conference contract). The Conference staff owe fiduciary duties to the conference and arguably to its members.
Disloyalty runs counter to these fiduciary obligations. It seems as if West Virgnia believes that some disloyalty could be found. The complaint argues that the Conference put the interest of its non-football (read: basketball) members above the interests of its football members. The complaint also articulates what appear to be claims of violation of the duty of care. Here, a plaintiff has a tougher time, since a fiduciary only owes an obligation to act in a careful, competent, and diligent manner. See Restatement (Third) Agency Section 8.08. The whirlwind of conference realignment in recent weeks has created some fairly unusual circumstances, and the claim for carelessness on the part of the Conference seems a tough one.