Sports Law Blog
All things legal relating
to the sports world...
Friday, May 31, 2013
D.C. Circuit Sides with Comcast in Dispute with Tennis Channel
This week's D.C. Circuit ruling siding with Comcast in its carriage dispute with Tennis Channel came as little surprise. It ruled that the Federal Communications Commission failed to justify its conclusion that the cable provider (known as a "multichannel video programmer distributor" in today's parlance) discriminated against the Tennis Channel (not owned by Comcast) by placing it in a more expensive tier than the Golf Channel and Versus (now the NBC Sports Network). The ruling is available here.
For cable services, the ruling will come as a big relief. The opinion concluded that the FCC's determination Comcast's disparate treatment of the Tennis Channel by tiering it in a more expensive package was not discriminatory under sec. 616 of the 1992 Cable Act, and rejected the Commission's factual basis for making that determination. Judge Williams, writing for the court, stated that the FCC failed to provide "adequate evidence" to bolster its claims of discrimination. He did not address the more fundamental argument made by Comcast -- that the statute, or at least its application, was a First Amendment violation of the free speech rights of the cable provider. Basically, the court found that there were valid reasons for placing the Golf Channel and Versus on a lower, cheaper and more widely distributed tier than Tennis Channel and that there was no evidence that this differentiation was based on the fact that Tennis Channel was not a part of Comcast. Additionally, there was no evidence presented that Comcast would gain any financial benefit by placing Tennis on that same tier of service as the others, noting that no expert witnesses, or written studies were provided. That lack of evidence of any potential financial game was crucial in the court's determination. So, the court essentially rejected the FCC's emphasis on the similarities of the programming on the Golf, Versus and Tennis Channels and the disparate treatment of them, without anything more.
There were two concurring opinions. Judge Edwards discussed procedural issues (not the focus here), but Judge Kavanaugh produced an analysis of sec. 616 in terms of antitrust jurisprudence, with a passing reference to First Amendment standards. As to the antitrust issue, he opined that sec. 616 violations should be based on the same standards of proof as antitrust claims involving vertical concentration because sec, 616(a)(3) requires that the FCC enact regulations that prevent the cable operators from discriminatory conduct which "unreasonably restrains" the ability of the unaffiliated service to fairly compete. In so doing, he found that there was no per se violation and there was no evidence of undue market power on the part of Comcast (a point that is debatable, given the general monopoly nature of cable operators). Therefore such vertical restraints (as found with the connection between Comcast and Golf/Versus) was presumptively pro-competitive.
Judge Kavanaugh then pushes what I think is a speculative connection between antitrust the First Amendment principles. He states: "applying sec. 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court." Cases that generally applied an intermediate scrutiny test that has been upheld by the "monopolistic characteristics" of cable programmers and the need for access. I am not convinced at the connection and there is no specific mention of such a connection in Turner v. FCC, 512 U.S. 622 (1994) which upheld mandatory carriage requirements under an intermediate scrutiny test. He also that technological changes have weakened any undue market power of cable operators, inferring that the today, unlike the 1990s, cable regulations such as sec. 616 would be harder to justify today.
The majority did not wade into this territory, but nonetheless gave Comcast a big win. It would be more difficult for independent sports channels to provide discrimination, at least in the DC Circuit.
Wednesday, May 29, 2013
NFL Draft Heads to May
While no sympathy will be offered by the general public to agents, pushing the draft back extends the time during which they pick up expenses for their clients. Traditionally, agents will absorb the costs of pre-draft training which will include combine prep, living expenses, travel, and an assortment of other "benefits." Now, while powerhouse firms can easily assume the marginal additional expense, agents often spend between $10,000 and $20,000 on each client.
Obviously, for agents with fewer clients or alternative revenue streams, the additional weeks of "investment" in their clients becomes a burden. Much like the summer of 2011 when the lockout extended the time during which agents covered their client's expenses, there was a clear distinction between what larger agencies were able to cover versus smaller firms or individual agents.
And, let's not pretend that poaching between agents doesn't occur. This gives more time for agents to continue to recruit the clients of others. [I won't even get into the role of runners and the impact that Jay-Z/Roc Nation could have during this period.]
There is no real benefit to the potential draftable players, other than extended an already difficult time period. Since the NFL is not changing the dates of the Combine, preparation for elite prospects will still start immediately after the bowl season. There will still be a rush to sign with an agent, have them pick up training costs, and begin immediate preparation for the Combine. These players will need to be in peak form for All-Star games, the Combine, perhaps for their school's Pro Days, and then there will still be another 6 weeks before the draft--more than enough time to slip, either physically or with a mistake.
And this extends the time that unsigned free agents have to patiently wait for teams to fortify their rosters with rookies (i.e. cheap labor) before they are able to resign with an NFL team.
3. NFL Personnel
Again, no one cares if a scout or assistant GM needs to go without sleep for another two weeks but this maneuver extends the time under which these individuals are under exorbitant amounts of pressure. The extra two weeks provides no additional insight into a player's potential so there is no evaluative benefit to this additional time.
4. The Fans
Hey, look, another two weeks of your favorite draft prognosticator telling you who your favorite team will select in the 6th Round! A colossal waste of time--unless you listen to Mike Mayock who, and I'm partial because he's a Boston College alum, is fantastic.
For the future, either the NFL Draft should revert back to April, or the League Year should also be pushed back--thereby moving the Combine, the start of free agency, and other calendar items. However, as it stands today, does anyone see any winners in this move?
Tuesday, May 28, 2013
New Sports Law Scholarship--Pt. 2
Recently published scholarship includes:
Ben Einbinder, What FINRA can learn from Major League Baseball, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 333 (2012)
Harry Epstein & Daniel Gandert, The Court’s yellow card for the United States Soccer Federation: a case for implied antitrust immunity, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)
David Falk, Note, Are professional sports leagues’ control over their member teams and owners in doubt?, 43 RUTGERS LAW JOURNAL 337 (2012)
Sunday, May 26, 2013
5 Sports Law Questions & Answers for the Mississippi Sports Hall of Fame
Mississippi College School of Law, where I taught full-time from 2005 and 2008. I now teach a sports law course there every May and I remain active in the Mississippi sports and legal communities. I consider Mississippi my other home state.
A few days ago, I answered 5 sports law questions for Rick Cleveland, the executive director of the Mississippi Sports Hall of Fame & Museum. Topics include NFL concussion litigation, Bountygate, legality of the Bowl Championship Series, the NCAA banning Twitter hashtags and O'Bannon v. NCAA. Here's an excerpt:
Part of the problem is that the NFL and NFLPA have a strained relationship, to put it mildly, partly due to the lockout and partly due to years of not trusting one another.
Part of the problem is also that the NFL commissioner has tremendous, non-reviewable powers, and that the players accepted those powers in collective bargaining. Had the lockout not dragged on right up until the 2011 season, I suspect the players would have had more time to negotiate more due process. But they didn’t, so the commissioner’s authorities remain quite strong.
To read the rest, click here.
Friday, May 24, 2013
"Sport as Speech" and Non-Sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Wednesday, May 22, 2013
New sports law scholarship -- Pt. 1
I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:
Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)
Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)
Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)
Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012)
Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)
Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity
In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses. The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.
Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated." While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted) If anything, the policy considerations in this case weigh in favor of [the athletes]. As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.
The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit. The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use. It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling. But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question. The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players.
Monday, May 20, 2013
Warren Zola article in Boston Globe Magazine
Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid. Be sure to check it out.
Saturday, May 18, 2013
"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V
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. These posts appear on Saturdays. First post can be read at this link, the second at this link, the third at this link, and the fourth at this link. Here is the fifth:
"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)
Tuesday, May 14, 2013
Sports Illustrated: The 15 Most Influential Sports Agents
15 Most Influential Sports Agents.
Here's my entry for Scott Boras, #2:
2. Scott Boras
Boras Corporation President