Sports Law Blog
All things legal relating
to the sports world...
Wednesday, July 31, 2013
Sam Keller defeats EA Sports in Ninth Circuit

Major decision out of the Ninth Circuit today -- and will have serious consequences for the O'Bannon case, which is also being tried in the Ninth Circuit.  I answer some questions for SI on today's developments.

Saturday, July 27, 2013
20th Anniversary of Reggie Lewis Death & Its Sports Law Legacy

Today is the 20th anniversary of the death of Reggie Lewis, an all-star Celtics guard/forward who died from a heart attack on July 27, 1993, at the age of 27.

Growing up right outside of Boston, I was a big Reggie Lewis fan. He's still my favorite basketball player of all time. Lewis was one of the most efficient players in the NBA, and had he played today in an era of basketball analytics, he probably would have enjoyed higher star power and commanded discussion at MIT Sloan Sports Analytics and similar forums.

What made Lewis so good?  Terrific defense and all-out hustle were a big part of it.  So too was scoring efficiency.  Hitting close to 50% of his shots, Lewis averaged 21 points per game in each of his last two seasons (91-92 and 92-93) and in the 91-92 season did something that Larry Bird never accomplished -- he led his Celtics team in scoring, steals and blocked shots per game. As Celtics Blog highlighted, Lewis, who was 6'7, also famously blocked Michael Jordan four times in one game.

Lewis had the unenviable task of following Bird as the next great Celtic. It was a task that, had Lenny Bias not died from a cocaine overdose the night the Celtics made him the 2nd overall pick in the 1986 NBA Draft, Lewis would have shared with another potential superstar and the Celtics probably would have gone on to be one of the best teams in the 90s.

But that didn't happen.

On April 29, 1993, Lewis collapsed during a playoff game in Boston against the Charlotte Hornets. A "dream team" of 12 Boston cardiologists concluded that Lewis had cardiomyopathy, also known as "athletes heart" and a potentially fatal condition whereby the heart becomes too thick and beats irregularly. I've written about cardiomyopathy in the context of Eddy Curry and Alan Milstein addressed it when he argued on behalf of Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of Curry's employment. This is also the kind of topic well discussed in David Epstein's new book The Sports Gene.

The doctors told Lewis that his basketball career was over.

Lewis then received a second opinion from Dr. Gilbert Mudge, a cardiologist who as Time Magazine reported, diagnosed Lewis with neurocardiogenic syncope, "a fairly benign fainting condition caused by nerve irregularities during or after peak periods of exertion." At a press conference, Mudge said, "I am confident that under medical supervision Mr. Reggie Lewis will be able to return to professional basketball without limitations." Mudge's opinion was later supported by other cardiologists, although some disagreed and supported the original diagnosis instead.

Lewis did not return to play for the Celtics, whose playoff appearance ended with a 3-1 first round loss against the Hornets, but he did resume a limited amount of practicing. Less than three months later, he would collapse and die while practicing his jump shot.

The death of Lewis raised two legal disputes.

1. Malpractice Lawsuit against Dr. Mudge

In 1996, shortly before the statute of limitations would expire, Lewis's widow, Donna Harris-Lewis, filed a malpractice lawsuit against Mudge. She argued Mudge was negligent in his advice and care of Lewis.  Mudge's key line of defense was that Lewis admitted to Mudge that he used cocaine, but the admission came months after Mudge's diagnosis:
Mudge had testified that Lewis admitted shortly before his death that he had used cocaine, making an accurate diagnosis impossible. Harris-Lewis adamantly denied the charge.
In other words, Mudge argued, he couldn't have provided reasonable care if the patient didn't inform him of a key (alleged) fact: the patient had a history of cocaine use.

The case took three years to litigate.  A jury was unable to reach a verdict and the case was ultimately declared a mistrial, a de facto victory for Mudge.  Harris-Lewis sued Mudge again, unsuccessfully, and an attempt at a third lawsuit was denied by a state appeals court in 2004.  Mudge is currently director of Brigham and Woman's Cardiovascular unit and an associate professor at Harvard Medical School.

2. Threat of $100 million Defamation Suit against The Wall Street Journal

The second legal controversy stemming from Lewis' death was a threat by then Celtics owner Paul Gaston to sue the Wall Street Journal for $100 million for a front-page story it ran on Lewis in 1995. Authored by Ron Suskind, Deadly Silence: How the Inner Circles, Of Medicine and Sports, Failed a Stricken Star attracted the outrage of Gaston, who called it called libelous.  The story suggested that the Celtics deliberately misled their insurance company as to the cause of Lewis' heart condition and that Lewis may have used cocaine. An autopsy of Lewis did not find any evidence linking Lewis with cocaine use.

Among other hurdles for bringing such a suit, it was never clear why Gaston would have had standing to file a defamation suit on Lewis' behalf or for the parts of the story that allegedly defamed Lewis.  The article did suggest that the Celtics withheld information about Lewis' health in order to increase an insurance payout, which means the Celtics (though probably not Gaston himself) could have sued on those grounds.

Critics also questioned why Gaston picked "$100 million" and the merits of such a number.  Use of such an extreme, round number has the unintended effect of diminishing the seriousness of a claim (think Dr. Evil and "$100 billion").  Similarly, many doubted the Celtics would have been willing to go through the pretrial discovery process associated with bringing the lawsuit -- especially one against the Wall Street Journal, which had the financial wherewithal to put up a good fight.  The Celtics' insurers would have surely paid attention to any findings that reflected poorly on the team.

Despite Gaston's threats, he never got around to suing the Wall Street Journal, and the 3-year statute of limitations on a claim expired in 1998.  Here is what Peter May of the Boston Globe wrote on March 18, 1998, right after the statute of limitations expired:
"We spent quite a bit of time with a libel litigator, and as much as I hate the fact that some injustices go unpunished, I decided that this was one that was going to get away," Gaston said yesterday. "I don't see my job to go on a personal crusade against one of the foremost newspapers in the country. My job is to help rebuild the Boston Celtics and run the company which oversees them."   ...

Gaston immediately threatened to sue for $ 100 million, calling the article "defamatory and libelous." He said any proceeds from the lawsuit would go to the Reggie Lewis Foundation.

Several libel specialists contacted by the Globe expressed doubt that a suit would be filed. One said it would be an "uphill battle," and another added, "The last thing the Celtics want to do is bring this to court."

Gaston said a suit would have cost millions of dollars to pursue and that he felt the money could be more efficiently spent. "But, personally," he added, "I am equally disgusted now as I ever was by what appeared. That bitter taste will never leave my mouth."

Dick Tofel, vice president for corporate communications at Dow Jones, the Journal's publisher, said yesterday, "We said when we published the article that we were confident the article was fair and accurate, and we feel the same way three years later."
 For a really good video about Lewis, check out this tribute:

This post is adapted and expanded from a post I wrote three years ago.

Friday, July 26, 2013
New York's Legal Efforts to Combat Sexual Orientation Discrimination in Pro Sports

Earlier this year I wrote an article titled Loaded Question: Asking a draft prospect about his sexual orientation could land a team in a legal minefield for Sports Illustrated (page 16, March 25, 2013 issue). The article centered on the legality of NFL teams asking college players about their sexual orientation.

This week I spoke with Reuters Legal as a follow up to the article and specifically about recent efforts by New York Attorney General Eric Schneiderman, who has invoked New York state’s human rights law, which protects employees from discrimination on the basis of sexual orientation, in warning leagues about sexual orientation discrimination. The NFL has responded by clarifying its policies and MLB and MLBPA have agreed to a new code of conduct barring sexual orientation discrimination.

The full interview is available to Westlaw subscribers but here is an excerpt:

* * *

Reuters: Do you think these matters are in Schneiderman’s purview? Why or why not? 

McCann: My impression is that AG Schneiderman is well within his purview. For one, he is the highest ranking legal officer in New York and he’s entrusted with enforcing New York law. New York law clearly prohibits sexual discrimination in hiring. Second, the National Football League, Major League Baseball and Major League Baseball Players’ Association (not to mention several teams) are all headquartered in New York and a large extent of those leagues’ and union business activities run through New York. 

Reuters: Do you expect these policy efforts will make a difference in players’ and/or teams’ behavior in terms of the treatment and hiring of gays in sports? 

McCann: The policy efforts have already made an impact. The NFL has investigated teams that may have asked prospective players’ about their sexual orientation and the league has also pledged to aggressively enforce existing anti-discriminatory rules. MLB and Major League Baseball Players Association, for their part, have adopted a new code of conduct to strengthen protections against sexual discrimination. The more changes like these are made, the more I believe behavior will change.

* * *

To read the rest, click here.

More fan speech

Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball.  Two other things.

First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.

Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech:
We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.
But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.

Rage against the Infield Fly Rule

The Infield Fly Rule is back in the news and ticking off baseball fans, but this time because the umpires didn't call it. On Wednesday, the Minnesota Twins had runners on first and second with none out. The batter hit a low looping pop-up to the side of the pitcher's mound; the pitcher let the ball drop to the ground, then threw to first to start a double play on the batter and the runner on first (who had to be tagged out). Video here (H/T: One of my team of RAs looking at baseball games and reports looking for Infield Fly situations).

This certainly looks like a play warranting an infield fly call--it was a fair fly ball that could have been caught with ordinary effort in the appropriate game situation. And it did, in fact, lead to a double play (although not the double play the rule is designed to prevent), providing the defense the overwhelming advantage that the rule is intended to avoid. The crew chief explained the non-call as follows:
"For an infield fly, we look for if the ball has arc and if the fielder can catch it with ordinary effort and if the fielder gets comfortably underneath," said crew chief Ted Barrett, who was working third base. "That one definitely had enough arc, but the fielder has to get comfortably underneath the ball to catch it. That's the criteria that wasn't met."
Ironically, that explanation arguably makes the call worse. It looks as if the pitcher was standing still and waiting for the ball; he wasn't settled directly under it only because he already had decided to let it fall to the ground and wanted to be in good position to surround it and pick it up. The better explanation would have been that the ball did not have enough arc (the rule does not apply to line drives, so the umpires would have to decide whether this was more like a pop-up or line drive). If he truly wasn't settled under the ball, it's only because the ball wasn't hit high enough.

As always, the play tells us some things. First, note the shorthand the umpires have developed for when a ball can be caught with ordinary effort. Neither the rule nor commentary says anything about arc or the fielder being settled under the ball, but the umpires have adopted those visual indicators as indications that a ball is catchable with ordinary effort.

Second, this play is an example of why the IFR is necessary. Without it, double plays on intentionally not caught pop-ups are possible (watch the runner on first and see how hung up he is and how he has to retreat close to the base) and that infielders will intentionally not catch the ball to try for the double play. True, this did not produce the double play the rule is designed to prevent; had the batter been running hard to first, he probably would have beaten the throw (he starts running hard only when he sees the ball drop). But look at the :06 mark of the video--both base runners are about two steps off the base; the pitcher easily could have turned around and start a third-to-second (1-5-4, if you're scoring at home) double play on the base runners. The point is that many double plays would be possible if fielders could seek out multiple outs by intentionally not catching an easily catchable ball.

Thursday, July 25, 2013
Latest on Aaron Hernandez Murder Case

Tuesday, July 23, 2013
The Legal Aftermath of Ryan Braun's Suspension

I have a new article or on the legal aftermath of Ryan Braun's 65-game suspension.

Friday, July 19, 2013
Ed O'Bannon adds Six Current Football Players; Why no Basketball Players?

Ed O'Bannon has added six current football players as named plaintiffs to his lawsuit against the NCAA, EA and CLC. 

Why no current basketball players?  I explore in a new article for

Wednesday, July 17, 2013
Let them wear towels

Last night, ESPN premiered Let Them Wear Towels, the third in its Nine for IX documentary series (nine films, all by female directors, marking the 40th anniversary of Title IX). Directed by Annie Sundberg and Ricki Stern, the film examines the experiences of the first generation of female sportswriters and their efforts to get equal access to lockerrooms. This one has a lot of law to it. For one thing, many of the early women sportswriters got those jobs because many of the major news outlets (including The New York Times, Washington Post, and Newsday) had been sued for employment discrimination and were looking to hire female sportswriters. The film also discusses Melissa Ludtke's successful 1978 lawsuit challenging Major League Baseball's exclusion of women from clubhouses as applied to Yankee Stadium,* which somewhat started the slow move toward league-wide policies in all four major sports.
    * The district court found that MLB and the Yankees acted under color of law, because New York City owned the old Yankee Stadium. This decision is a big part of my arguments about the First Amendment rights of fans at publicly financed ballparks.
The film closes with the story of Lisa Olson, who in 1990 was sexually harassed by several players in the New England Patriots lockerroom, then suffered public harassment and vilification that pushed her to move out of the country for six years. The film's presentation of the Olson case illustrates something about the evolution of social movements. The early cohort of women reporters, who are the main subjects of the film, talk about turning a blind eye and deaf ear to offensive behavior. For them and their period of the mid-'70s to mid-'80s, the goal was simply access and getting inside the lockerroom so they could do their jobs; lewd comments and actions were the cost of that access. Olson's story is the second wave of the movement--having been granted access (a given by 1990), the demand was for a certain minimum level of behavior and treatment when they were there.

The one other thing I would have liked to have seen was some update on the views of the men who strongly opposed women's access back in the day--do they still hold to what they said 30 years ago or are they embarassed by it? Several of them are dead (former baseball commissioner Bowie Kuhn, former Patriots owner Robert Kraft Victor Kiam, whose public comments exacerbated the Olson situation). ESPN does have a short companion film in which journalists and athletes of that era talk about the past and come across as largely supportive.

Saturday, July 13, 2013
Five Seven Five Sports: 2012 in Haiku - Language of the Games

Sports attorney, author, poet and former Princeton University first baseman Andrew Hanson has authored a new book titled "Five Seven Five Sports : 2012 in Haiku - Language of the Games".  It's a remarkable read, with a collection of Hanson's haiku poetry chronicling sports during 2012.  Here are a few of my favorite poems from it:

* * *
January 30, 2012 
Cross-court pick, seal, roll,
So fundamentally sound,
Leading to lift-off:

The winged monster,
Half Blake Griffin, half griffin,
Soars like an eagle,

Meets Kendrick Perkins,
Toughest member of Thunder,
Arms and elbow up,

Blasts uncoachable,
Heavenly throw-down dunk from
Top of backboard square,

Sends Staples Center
Into murmurous frenzy,
Adds and-1 free throw.  

April 20, 2012 
Fenway Park's birthday:
Pure music to Boston's eyes - 
Rice to Yastrzemski;

Legends fill the field,
Catch first pitches, lead the toast,
And proclaim, "Play Ball!" - 

Red Sox and Yankees - 
100 years to the hour
Of Fenway's first day...

Big Papi measures
Sports' most famous barrier,
High above left field;

Thirty-seven feet
No match for his home run swat,
First ruled a double;

After players pause
Ump's spinning hand frees Ortiz,
And his trot resumes...

Green Monster absorbs 
Repko's catch and collision,
Passes test of time.

June 23, 2012 
Ten women playing - 
Professionals before fans - 
"IX" uniforms;

40 years later,
Title IX's daughters compete;
Lynx outscore the Sky.

July 2, 2012 
Baseball "Horse" contest - 
Degree of difficulty:
The Pittsburgh foul pole;

Jones yanks one down line,
Practically splitting target,
Hitting the high bar;

Next shot - higher arc;
Walker avoids a letter,
Tallies an "HR".

November 10, 2012 
Jarred by lineman's hip,
The ball and play float, at risk -
Johnny on the spot;

Manziel transitions,
His gaze returned to end zone,
Ball back in his hands;

Johnny Football-Swope,
A&M-arrival play -
Easy pitch and catch...

Slicing 'Bama's route,
Everett's wise 4th-quarter pick -
Go-ahead bid fails...

Set to receive punt,
'Bama enters neutral zone - 
Unbeaten no more.

 * * *

I strongly recommend picking up Five Seven Five Sports.  Makes a great gift, too.

Friday, July 12, 2013
Should College Athletes Be Paid?

This past April, Boston College hosted a debate between the University of Hartford's Allen Sack and myself titled "Should College Athletes Be Paid?"  This symposium was direct a follow-up to our participation in "Debate Club" where we submitted essays to US News outlining our opinions on this very issue.  Those essays, along with a few others, can be found here.

After a bit of work, I'm pleased to provide you with the entire video from that evening's presentation.

Monday, July 08, 2013
Wrongful Death and Vicarious Liability connecting to Aaron Hernandez

I have a new article for on potential liability for Aaron Hernandez, the Patriots and the NFL stemming from the murder case. 

Saturday, July 06, 2013
Death, taxes, and Dwight Howard

Blog Emperor Paul Caron points out that although the Lakers offered Dwight Howard more money, the combination of Texas not having state income tax and California's top marginal tax rate of 13.3 % means he likely will take more money with the Houston deal.

Friday, July 05, 2013
Sports and patriotism

From ESPN's Howard Bryant. I'm not sure this is as new a phenomenon as he suggests or that sports used to be apolitical, but I agree that it has become more pervasive and, to some, obnoxious.  I particularly like the closing paragraph, where he points out the inconsistency (if not outright hypocrisy) of leagues and the media immersing games in compulsory politics, then criticizing players who speak out for their own causes and ideals, demanding that they "shut up and play."

Monday, July 01, 2013
Given Media Frenzy, Can Aaron Hernandez Receive a Fair Trial?

I have a new article for SI on the impact of the media coverage on Aaron Hernandez receiving a fair trial, as well as whether he might face multiple trials.

NCAA Sanctions against Oregon: Much Ado About Nothing

The sanctions handed down to Oregon this week are unlikely to have any practical impact. Oregon was accused of paying a recruiter, Willie Lyles, $25,000 to funnel a recruit to the school.  After failing to agree on a proper punishment through the NCAA’s summary disposition process, the prevailing sentiment was that the Committee on Infractions (COI) would punish the Ducks harshly, most likely with a bowl ban of at least one year.  That was not the case.  The school faces no bowl ban, which generally accompanies major sanctions (See, Ohio State, Penn State, USC, and countless others).  Other penalties were equally insignificant.  The reduction of one scholarship per year is unlikely to yield significant detrimental effects.  The reduction in official visits from 56 to 37, accompanied with other various recruiting restrictions, will make the task a bit more challenging for the coaching staff, but overall, will not impede a program of this magnitude.  The harshest sanction, the 18-month show cause penalty against former Head Coach Chip Kelly, also has no real impact since Kelly now coaches in the NFL, and is unlikely to return to college during that 18-month period. 

A number of explanations for the decision could be at play here.  One factor is that the NCAA’s recruiting regulations have undergone significant change in the last few years (See generally, NCAA Bylaw 13); it may simply be that the facts of this case were just not that nefarious based on emerging sentiment and rule changes.  Another ancillary consideration that the COI likely took into account is that the student-athlete in question never played for Oregon.  Perhaps the COI was actually reluctant to issue harsh sanctions due to the constant and biting criticism NCAA Enforcement has faced as a result of the Miami investigation, and other public relations missteps. 

One take way from this decision, however, is that the NCAA does not look favorably upon lying to investigators, and it will punish teams and individuals accordingly.  It appears that Oregon was frank with investigators, and admitted to paying Mr. Lyles the $25,000 fee.  Whereas, at USC and Ohio State, key administrators and coaches attempted to conceal key facts, resulting in much more draconian sanctions (Penn State is a different matter entirely).  Also, while there is no way to know for certain, it is interesting to theorize what would have happened if Kelly was still coaching at Oregon.  As it is, the team got off light, and he received the harshest sanction.  Would that have been reversed if he was still the sitting coach?  Perhaps.  Similarly, would the COI have issued a show cause penalty of significant length to an active head coach?  Its difficult to say.  It appears that Kelly’s penalty further serves as an example of the NCAA’s distaste for dishonesty:  Kelly received an 18-month show cause penalty for paying money to an unscrupulous recruiter, but was honest about it after the fact; Bruce Pearl, former Head Basketball Coach at Tennessee, hosted a barbeque for prospective-student athletes at his home, a seemingly harmless offense, yet he lied about the event and was issued a three-year show cause order.  Ultimately, there is no way to accurately predict how the COI will rule in these cases, but the best advice that can be given is that when the Association arrives on campus, the truth should not be concealed. 

Hat tip to Brian Konkel for his work on this piece.