Sports Law Blog
All things legal relating
to the sports world...
Tuesday, April 30, 2013
Boston Business Breakfast on Sports Law this Thursday
St. John's Prep, which I'm proud to say is also the alma mater of Notre Dame head football coach Brian Kelly (Class of 1979) and Penn State head football coach Bill O'Brien (Class of 1988).
I'll be discussing breaking issues in sports law, including the Boston Marathon bombings and the impact on stadium security.
Even if you are not an alum, but are interested in sports law, I hope you consider attending ($25/person):
Boston Business Breakfast
Michael McCann ’94 • Sports Law
For more information, click here.
Monday, April 29, 2013
NBA player comes out--Now what?
Sports Illustrated has the story of Jason Collins, a Stanford grad, 12-year NBA veteran, and current free agent (he spent the past year with the Celtics and Wizards) coming out publicly (he came out to his family last summer). Submitted without comment, other than to not that while this is not a star player in the prime of his career, it is a big step in that direction.
Saturday, April 27, 2013
"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part II
Sports Law Blog is publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. The first one is available at this link. Here is the second one:
"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)
Home Field Advantage? (Choice of Ethics Law)
As a general proposition, an attorney who is licensed and practices only in one state will be governed by the Rules of Professional Conduct, or RPCs, of that state. When, however, an attorney is licensed in more than one state or the attorney's practice crosses state lines, the picture gets more complex. Of course, an attorney receives and maintains the ability to practice law by virtue of the licensing authority of the jurisdiction(s) in which the attorney is licensed. When the rules of the various jurisdictions are the same, this does not matter. But what if they are different? Which set(s) of ethical rules govern which of the attorney's actions?
In our first segment, we introduced Attorney Al, who is licensed in both New Jersey and New York. Which state's Rules govern Al's representation of his client Mega Star? Fortunately, RPC 8.5 of these two states are substantially similar to each other and to the equivalent ABA Model Rule. New Jersey's RPC 8.5, which is identical to ABA Model Rule 8.5, state in pertinent part:
Rule 8.5 Disciplinary Authority; Choice Of Law
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. (...) A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (Emphasis added)
(b)(2) for [conduct not involving litigation], the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. (Emphasis added)
New York's Rule 8.5 varies at (2)(ii) in that if the lawyer is licensed to practice in New York “and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.” (Emphasis added)
Depending at least in part upon Al's geographic location at the time of this work, one could theoretically pick New York, New Jersey, California or Texas as the location where most of Al's conduct in aid of the representation occurred. And looking at the location of "predominant effect" may not provide a clear answer. Is it New York, because that is where Mega now lives? In California or Texas if he signs with either of those teams? As will be noted, at least the New Jersey rule provides, as a safe harbor, that Al need only conform his conduct to the rules of a state which he reasonably believes is the state of predominant effect.
But if, say, the predominant effect is in a state in which Al is not licensed, will he be subject to discipline or prosecution for the Unauthorized Practice of Law? This topic to be continued . . .
Thursday, April 25, 2013
The False Claims Act Complaints Against Lance Armstrong
The government this week filed its complaint in the False Claims Act case against Lance Armstrong. The US annouced it would be joining the lawsuit, filed by "whistleblower" Floyd Landis, back in February.
The government's complaint is available here.
The second amended complaint submitted by Landis, the "relator", is available here, and his original 2010 complaint here. The Landis complaint, though long the subject of rumor, only became public in January after the seal required in filing FCA whistleblower actions was lifted.
Back in 2010, I identified one issue in the rumored case as being the need to demonstrate a false claim submitted to the government. The government has asserted both false claims and "reverse false claims" to meet that piece of the statute.
Lance's $125 million personal fortune is on the line. In February, I predicted that Armstrong's public pseudo-mea culpa meant he was prepared to settle the FCA case. No sign yet that a settlement has been reached.
Saturday, April 20, 2013
"Pros or Cons" Thoughts For the Modern "Sports Attorney" - Part I
Sports Law Blog will be publishing a 5-part series on the practice of sports law. The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington. These posts will appear on Saturdays. Here is the first one:
"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)
Being a "sports attorney," in today's national professional sports scene can be a precarious balance of seeking the best advantage for your client, while ensuring that you maintain your sworn obligations as a licensed attorney. All attorneys owe ethical obligations, which are enforced by the state bar association(s) or the judicial system(s) in jurisdictions in which the attorney is licensed. In addition, some governmental agencies have their own rules and many civil and criminal statutes apply to lawyers. Just as in any sport, the most spectacular play can be overturned and players sanctioned or sent off the field if there was an infraction of the rules.
In the following series of articles, constituting four additional installments, we would like to highlight specific areas of concern that an attorney who serves a professional athlete/entertainer on a national scale may encounter. We hope to start the conversation that will lead to an enlightened approach of balancing responsibilities owed to the profession and the client.
To set the playing field, consider the following hypothetical:
Mega Star currently resides in New York and plays professional football for the Big Bruisers, and he has a long-standing relationship with Attorney Al, who is licensed in both New Jersey and New York. Mega's contract with the Big Bruisers is set to expire at the end of the season. With the end of Mega's career in the foreseeable future, he wants his next (and possibly the final) contract signing to be as lucrative as possible. Two other teams are trying to sign Mega for next season. One team is located in California, and the other in Texas. Mega also wants to start a motivational speaking business -- on the side for now but as a full-time endeavor after his professional career ends.
Mega asks Al to (1) negotiate possible contracts with (a) the California team, (b) the Texas team, (2) analyze possible state and federal tax implications of each. In addition, Mega wants Al to (3) organize a motivational speaking business and file the articles of incorporation in Delaware, and (4) review and advise him on a real estate purchase for a vacation home in Florida.
Over the next four installments, we will cover the common ethical obligations as it pertains to an attorney who practices on a national level. More specifically, we will cover questions concerning which jurisdiction's ethical rules may or do apply and the unauthorized practice of law.
Tune in next time to see how Al could/should ethically respond to Mega's requests.
--Jason A. Davis & Peter R. Jarvis
Thursday, April 18, 2013
Why fan speech matters
If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site of genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.
Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.
Should it matter that moments like this also give us obnoxious t-shirts and chants?
Monday, April 15, 2013
NCAA: Choosing the Interests of Coaches (Revenue) Over Students Yet Again
piece in Huffington Post entitled "Transitioning From the NCAA to the NBA: Time for a Change in the Rules" that turned into this law review article in the Harvard Law School's Journal on Sports & Entertainment Law.
Today once again reminds us of how the NCAA chooses, yet again, to favor the interests of the high paid coaches over the students that they so publicly claim to protect and value. While the NBA and NBPA have created the current "one and done" environment in men's basketball, the NCAA does an absolutely miserable job in allowing students to properly assess their prospects in making a wise decision as to whether or not to leave early. How? Well look at the dates for this process:
April 15th: Last day the NBA will provide an assessment, allowed under NCAA rules, of an underclassmen's prospects.
April 16th: Last day a student-athlete can withdraw from the NBA draft and retain their eligibility.
This provides a full day to make an assessment and, under NCAA rules, to do so without an agent. OK, you'd then assume that the NBA's deadline to declare for, or withdraw from, this year's draft is imminent......right? Nope. Their deadlines are as follows:
April 28th: The last day a prospect can submit their name for this year's draft. More importantly, is the following date...
June 17th: The last day a prospect can remove their name from the NBA draft.
What? Yup, the NBA doesn't require someone decide until June 17th, a full TWO MONTHS, after the NCAA requires a college athlete make their intentions known. You then, rightfully, ask why this gap? Well, because college coaches wanted an early deadline to help them recruit should someone leave early.
I stand by my earlier statement, this is another example of the NCAA making decisions and rules for high profile, well paid, coaches, rather than the college athlete. Or, as those of us on the basketball court may yell when blocking a shot...."CERT DENIED!"
Tax implications of Olympic prize money
In honor of tax day,some sports law reading to accompany your free Cinnabon - Kathryn Kisska-Schulze (NC A&T) and Adam Epstein (Central Michigan) recently posted Taxing Missy: Operation Gold and the 2012 Proposed Olympic Tax Elimination Act. The abstract provides:
The purpose of this article is to explore the legal and tax environment surrounding the August 1, 2012 bill referred to as the Olympic Tax Elimination Act (OTEA) which was introduced in the U.S. Senate to exempt from gross income the prize money earned by U.S. Olympians from the United States Olympic Committee (USOC) for earning a gold, silver or bronze medal. The OTEA came at a time when American economic growth has been stagnant, and income tax issues became a hotly contested political debate for the 2012 Presidential election. The article explores how tax issues have weaved their way into sports law generally; investigates the USOC’s Operation Gold program, including a discussion of the relationship between the National Collegiate Athletic Association (NCAA) bylaws and USOC with regard to the program and prize money; analyzes the proposed OTEA; and addresses alternatives to the OTEA by encouraging other tax savvy options outside the outright elimination of such income from the Internal Revenue Code (I.R.C.) purview.
Saturday, April 13, 2013
American Indian Mascots Continue to Divide
Moni Basu at CNN has just written yet another "take" on the American Indian mascot conundrum. In Native American Mascots: Pride or Prejudice?" Basu interviews Suzan Shown Harjo who brought the now famous case Harjo v. Pro Football, Inc., attempting to have the trademark for the "Washington Redskins" canceled because it is offensive, derogatory, and contemptible.
Although "Harjo was defeated in the courts, . . . public opinion has been shifting steadily on the matter. In March, several lawmakers introduced a bill in Congress that would amend the Trademark Act of 1946 to ban the term “redskin” in a mark because it is disparaging of native people. Among the sponsors of the bill is civil rights activist Rep. John Lewis, D-Georgia. Harjo says she hopes the legislation will accomplish what litigation has failed to do so far. If passed, the bill would force the Washington football team to discard its trademarked name and ban the use of any offensive term in any future trademarks."
Friday, April 12, 2013
Rethinking the Origin and Preservation of Baseball's Antitrust Exemption
Why was Baseball granted an exemption from Section 1 of the Sherman Act, and why did it last in its entirety so long - until the Curt Flood Act of 1998? On Concurring Opinions, Aaron Zelinsky (who I believe is the first U.S. Supreme Court clerk and Sports Law scholar) has a terrific two-part series (Part 1, Part 2) that addresses the question and also reviews a new book by Stuart Banner on the topic, The Baseball Trust: A History of Baseball's Antitrust Exemption.
Tuesday, April 09, 2013
Miami Marlins and Free Speech
Leave it to the Marlins to be the team that might actually test my theories on fan expression. Could there be a better example of a ballpark that is publicly funded even if not publicly owned and thus still bound by First Amendment limits?
I am attending tonight's game with a friend; I'll have to keep my eyes open.
Update: I did not see anything at the game--no t-shirts, no signs, no chants. Just an announced crowd of 14,000 (probably a few thousand smaller in reality), the roof actually open on an unusually cool evening, and the Marlins losing again.
Sunday, April 07, 2013
Dark Days for the Scarlet Knights
The mess began when Mike Rice’s assistant coach Eric Murdock notified University officials of the coach’s abusive behavior by showing them a video of his outrageous conduct. Instead of just firing Rice for treating their students in an unacceptable manner--like they would any other member of the administration—University officials consulted an outside law firm for a recommendation. After all, unlike even the most prestigious member of the faculty, this coach had a five-year $650,000 contract. The lawyers came to campus, interviewed players and coaches, watched the videotape of the practices we all have now seen, and told the President of the University that Rice had not created a hostile work environment for the former assistant coach Murdock. What? That is like cops investigating the scene of a bank robbery and concluding the transaction did not violate IRS rules when the perp received more than $10,000 in cash from the teller.
Of course, Rutgers was just about to enter the lucrative world of big time athletics by joining the Big Ten. A scandal might upset that plan, forcing the Scarlet Knights to remain in the lowly Atlantic Ten.
When the video finally surfaced, and the public outcry began, Rice was immediately sacked—no lawyers had to be consulted—and the athletic director resigned to the tune of a reportedly $1.25 million severance package.
But wait, the latest is that the FBI is getting involved. Surely, now the focus will be on ensuring that the rights and dignity of students at a state institution are not compromised merely because they sign on to play for one of the school’s extremely profitable athletic programs. Actually, according to today’s New York Times, the FBI is also focusing on Murdock and whether his demand to settle his wrongful discharge suit amounted to extortion.
No one seems to have their eye on the ball.
Saturday, April 06, 2013
Private Prison Company Stadium Naming Deal Fails
The "surprising . . . distractions" to which Zoley refers include (a) student protests challenging FAU to reject the donation as hypocritical pointing out that GEO Group's profit base is derived almost entirely from human misery and suffering, (b) an overwhelmingly passed faculty resolution calling upon President Saunders to cancel the deal because GEO Group's "business practices do not align with the mission of the university," (c) a sit-in held in President Saunder's office by students, (d) a mocking national spotlight from Stephen Colbert's comedy/news show (suggesting that one of the problems of drawing attention to your business, is that people will pay attention to what your business actually does), and (e) community outrage protesting GEO's intimate affiliation with an institution of higher education.
Private prison companies are perversely incentivized to generate profit based on human misery through working to increase the incarceration levels of United States citizens and immigrants. Private prison corporations pay dozens of millions of dollars to lobby legislators for harsher sentencing regimes, new crimes that require incarceration (AZ SB1070), and increasing prevalence of private prison contracts based on dubious claims of efficiency and cost savings. Without providing any product or needed public good, GEO Group, the Corrections Corporation of America (CCA), and other private prison companies profit in two primary ways that are incredibly objectionable:
First, private prison companies contract with state and federal governments to warehouse U.S. prisoners and are paid in taxpayer funds on a "per bed" basis. Essentially, taxpayer funds are being transferred from taxpaying citizens into the pockets of private prison company executives and shareholders for no recognizable good or service. Almost all of the recent emerging evidence suggests that private prison companies run prisons LESS efficiently, LESS safely, and LESS cost effectively than do federal and state governments. The Lake Erie Prison report just released finds that CCA is so profit driven, that the CCA- run prison at Lake Erie does not provide proper supervision of prisoners and that drug use and violence are rampant, both in an attempt to avoid costly prisoner lawsuits.
Second, private prison companies exploit the labor of the prisoners in their care by entering into contracts with companies like IBM, Victoria's Secret, WalMart, and McDonald's for prisoners to work for pennies with the contractual rewards paid into the coffers of the private prison company (thus to shareholders and executives). Prisoners are paid between $0 and $4 for the labor that they engage in sewing for Victoria's Secret, manufacturing for WalMart and McDonalds, with the fruit of their labor being paid to the prison company rather than to the prisoner. Indentured servitude continues in our prisons in the United States and the GEO Group and CCA profit from these immoral activites.
That both of these profit sources continue in the United States today is shocking. That the students, faculty, and community at FAU recognized this appalling business model is heartening. The GEO Group's name will NOT adorn the football stadium at FAU. It appears that "surprising . . . distractions" of massive protest are just beginning for the private prison industry.
Monday, April 01, 2013
The Debate Regarding the Exploitation of Student-Athletes Continues
The NCAA's March Madness has, once again, sparked the debate as to the exploitation of college athletes. As the tournament generates millions of dollars and soaring television ratings, people continue to question why those that produce this revenue aren't compensated adequately for their role.
Our own Michael McCann appeared on Bloomberg TV to advocate paying college athletes. You can watch the video clip here. Nice job, again, Mike.
The horrific, and truly tragic, injury to Louisville's Kevin Ware has also riled up student-athlete advocates on the lack of insurance policies--both medical in general and disability in particular once again. For example, did you know that if Ware doesn't have a multi-year scholarship Louisville would be within their legal rights to take his scholarship away if they so choose? [I have no reason to think they will, only that they would have the right to do so.] This article by CBS Sports talks about Ware's situation, and lack of insurance policies.
Fellow student-athlete advocate Marc Isenberg wrote this fine piece entitled "The Student-Athlete Disability Insurance Program isn't What the NCAA Cracks it up to be."
The New York Times is writing a piece on insurance and Ware, for which I along with several others, have been interviewed. We'll get a link to that article up as soon as it's available.
Finally, I've written an Op Ed piece for US News on the topic of paying student-athletes. Here's the link.
NYU Law Sports Law Panel this Wednesday. Free/Open to Public.
Wednesday April 3, 2013, 2:00pm
NYU School of Law, Greenberg Lounge
40 Washington Square South
New York, NY
The Sports Law Committee, in association with the Intellectual Property and Entertainment Law Society at New York University School of Law, cordially invite you to an afternoon of lively discussion on labor relations in sports.
This event, sponsored by Proskauer Rose, is open to the public and free.
2:00 p.m. Roundtable Discussion on Labor Relations
Robert Boland, Professor at NYU Tisch Center (moderator)
Russ Granik, former NBA Deputy Commissioner
Charles Grantham, former Executive Director of NBPA
Adam Lupion ‘01, Partner at Proskauer Rose
Allen Shapard, Senior VP, IMG Worldwide, Inc.
Jon Wertheim, Senior Writer for Sports Illustrated
3:15 p.m. Q&A
3:45 p.m. Coffee Break
4:00 p.m. Keynote Address
Michael Weiner, Executive Director of the Major League
Baseball Players Association
4:45 p.m. Q&A
What can rugby tell us about the future of football?
A recurring question in discussions of the future of football in light of safety concerns is whether, and how, you can have a "safer" tackling sport. Thoughts generally turn towards rugby--dre did a workshop at FIU in February and this came up during that conversation. Having just watched the Tokyo Sevens rugby tournament, I wonder if the answer is in there somewhere. Without question it is a tough, brutal, physical sport and in all likelihood players are suffering some head trauma, as well as other physical injuries. But rugby seems to involve more tackling and less "big hits" or high-speed/high-impact collisions. Players (especially off the ball) do not get the same running start or head of steam, so they are not moving as fast when the hit one another.
So am I correct as to nature of the hitting and tackling in rugby compared with football? And if so, is there a way to change the rules of football and the way it is played to make the hitting more like rugby? And would it work to preserve football or would it so fundamentally alter the game?