Sports Law Blog
All things legal relating
to the sports world...
Friday, August 30, 2013
The last time a high-profile case was resolved in federal court, the presiding district judge became indelibly linked to the sport and rode it all the way to the Supreme Court of the United States.
Is Judge Anita Brody now forever linked to football?
Thursday, August 29, 2013
Another take on NFL Concussion Settlement
Howard blogged about it earlier and I have a new piece for SI on the settlement and what to expect next.
Settlement in NFL concussion lawsuit
The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6).
Sport and Speech: The Bobblehead
Monday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.
Monday discussed it in a 2006 interview:
“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”
While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.
Tuesday, August 27, 2013
Fixed matches and cultural capital
A new article in ESPN The Magazine (which includes the embedded video report) tells the story of rumors that Bobby Riggs tanked the famous "Battle of the Sexes" tennis match against Billie Jean King, which was played 40 years ago next month. The touchstone of the article is an interview with a man who claims to have overheard two mob bosses and a mob lawyer discussing Riggs' plan, although rumors that Riggs threw the match have abounded for 40 years.
Two notable things in the article. First, two people suggested that Riggs' famous pre-match chauvinism was all for show, that he believed in gender equality and had worked with a female coach at the start of his career. Second, the story ends with Riggs and King speaking several days before Riggs died in 1995; King says she told Riggs how important their match was to women and the women's movement. "'"Well, we did it," Bobby Riggs finally told her. "We really made a difference, didn't we?""
What if Riggs did tank? The match is a cultural milestone because it purported to show that women could successfully compete with men. That idea is absolutely true, of course (although not in professional sports, and I wish the sports conversation would move away from women competing with men so we could enjoy women's sports on their own merits). But the match no longer represents the idea if King did not actually beat Riggs. On the other hand, suppose Riggs tanked because he saw that he could advance the cause of women's right and women's equality (ideas to which he actually was sympathetic) by losing. Regardless of whether the win was real, it laid the groundwork for what we now, 40 years on, understand as true. And his dying words to King suggest he may have understood that.
Thursday, August 22, 2013
The NCAA Has Never Been Regulated by Congress, So Will Congress Finally Man-Up with Proposed New Legislation?
Going back almost five decades, since 1965, Congress has held about thirty separate formal hearings on the NCAA and/or amateur or collegiate athletics, and Congress has produced no less than seventeen reports regarding the NCAA and these related topics during that timeframe, yet Congress has enacted no legislation to regulate the NCAA.*
On September 19, 2011, in my Sports Business Journal op-ed, I proposed that Congress should adopt the following Collegiate Athlete and Employee Fairness Act, which would essentially solve most if not all of the current problems with college sports by inserting the free market into the system. CAEFA would require that:
1. The athletic conferences, the NCAA, and any related associations, shall no longer be deemed IRS 501(c)(3) charitable entities and shall hereafter be deemed 501(c)(6) trade association entities;
2. Any college or university with an athletic department that derives revenue from its athletic program shall operate from within that institution and not from within any separate entity, and the athletic department’s finances shall be audited according to generally accepted accounting principles and publicly and separately reported with its annual IRS Form 990;
3. Any college or university with an athletic department that derives revenue from its athletic program shall provide disability, health, and life insurance to its college athletes and athletic department employees;
4. Any college or university’s net profit from its athletic department shall be taxed under the unrelated business income tax theory, because making profit on amateur activities is inapposite to amateurism;
5. Any entity purporting to regulate college athletes or athletic department employees shall apply the same rights and privileges to these athletes and employees as it does to its members; colleges and universities shall apply the same rights and privileges to all of their students, whether they participate in athletics or not;
6. Any entity purporting to regulate college athletes or employees shall not make an agreement with any college or university that limits or attempts to limit any rules or regulations or terms of admissions and recruitment or attendance, a grant-in-aid or letter of intent, or athletic department employment;
7. Any entity purporting to regulate college athletics or athletic department employees shall not abridge any rights or privileges afforded by the constitutions and laws of the United States and its several states and territories as may be applicable to that athlete or employee, and no such entity shall attempt to penalize resort to the judicial system via restitution rules, penalties, or otherwise;
8. The Uniform Athlete Agent Act and any federal or state analogs are hereby superseded by this Act, which invalidates or withdraws the same and replaces them with the simple and universal truth that all college athletes and employees are entitled to representation of their choice at any point in time for any reason whatsoever under any terms agreed to by the agent or attorney and college athlete, which shall be deemed confidential and privileged; and
9. Congress shall establish an administrative law system within the Department of Education to adjudicate any enforcement of any rules or regulations of any entities purporting to regulate colleges and universities and their college athletes or athletic department employees, which shall be fully and totally financed by those entities on a yearly basis pursuant to a formula to be determined by the Department, which shall adopt rules and regulations to carry out this Act, including rules and regulations as to when the entity must provide counsel for athletes and employees, who cannot otherwise afford to retain the same. Appeals shall be heard by the Federal Circuit Court of Appeals, and certiorari may be entertained by the U.S. Supreme Court.
On October 19, 2011, Representative John Conyers, Jr., Ranking Member of the House Committee on the Judiciary, called for hearings regarding antitrust and due process violations by the NCAA.
On November 17, 2011, Representative Bobby L. Rush, Member of the House Committee on Energy & Commerce, Subcommittee on Commerce, Manufacturing and Trade, along with sixty other members of Congress, called for hearings to evaluate those circumstances under which the NCAA would decide—along with what is the NCAA’s capacity—to independently investigate recurring student-athlete and administrative misconduct and violations of NCAA and member conference regulations.
To date, nothing has come of my proposal or of these calls for hearings on the NCAA by about ten percent of Congress, which is not an insignificant number at the hearing stage.
On August 1, 2013, Representative Charles Dent along with eight co-sponsors introduced legislation entitled the National Collegiate Athletics Accountability Act, which has been assigned to the Committee on Education and the Workforce, and which provides in pertinent part as follows:
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C. 1094(a)) is amended by adding at the end the following:
‘(30) In the case of an institution that has an intercollegiate athletic program, the institution will not be a member of a nonprofit athletic association unless such association—
‘(A) requires annual baseline concussion testing of each student athlete on the active roster of each team participating in a contact/collision sport or a limited-contact/impact sport (based on the most recent classification of sports published by the Committee on Sports Medicine of the American Academy of Pediatrics) before such student athlete may participate in any contact drills or activities;
‘(B) prior to enforcing any remedy for an alleged infraction or violation of the policies of such association—
‘(i) provides institutions and student athletes with the opportunity for a formal administrative hearing, not less than one appeal, and any other due process procedure the Secretary determines by regulation to be necessary; and
‘(ii) hold in abeyance any such remedy until all appeals have been exhausted or until the deadline to appeal has passed, whichever is sooner;
‘(C) with respect to institutions attended by students receiving athletically related student aid (as defined in section 485(e)), requires any such athletically related student aid provided to student athletes who play a contact/collision sport (based on the most recent classification of sports published by the Committee on Sports Medicine of the American Academy of Pediatrics) to be—
‘(i) guaranteed for the duration of the student athlete’s attendance at the institution, up to 4 years; and
‘(ii) irrevocable for reasons related to athletic skill or injury of the student athlete; and
‘(D) does not have in place a policy that prohibits institutions from paying stipends to student athletes.’.
The media reported this introduction and noted that essentially it was introduced by proxies for Ohio and Penn State Universities, which have both been dealt severe penalties by the NCAA. According to GovTrack, this bill has only a seven percent chance of making it out of Committee, and only one percent chance of being enacted.
Why new legislation that is not comprehensive was introduced without seeking support from Reps. Conyers & Rush is unclear, but it underscores why any attempt to regulate the NCAA generally fails, and the reasons are litany with just a few being the following: (A) This never makes Congress’ top ten most important things to do; (B) those advocating regulation usually have a bone to pick about their college team being picked-upon, which makes their proposals suspect from the get-go; (C) Congress doesn’t understand the NCAA or how its cabal made up of the conferences, colleges, and universities actually work, which is more an example of modern day fascism; (D) Congress has no idea how much tax revenue it is missing by failing to investigate this pot of gold; and (E) Congress generally doesn’t care, beyond Reps. Conyers & Rush and their group, about the racist impact that the commercialization of men’s football and basketball have had on minorities.
If you are the NCAA, do you really care, when you know that none of this will go anywhere? The obvious answer is no, if history is any example. With all of the hearings and reports on the NCAA, Congress has never regulated the NCAA directly, although it has chosen to regulate agents and gambling, as if those were of paramount importance, which they are only to the NCAA. So, if the NCAA wants legislation to help it, it has gotten its way in the past. But real policing of the NCAA won’t happen unless a movement arises to address the massive inequities of the entire collegiate athletic industry, which must be done on a comprehensive versus piecemeal basis.
Congress should care: College sports generate over $6BB in annual revenue, gambling on college sports is in excess of ten times that amount, neither the states nor the federal government have delegated the regulation of college sports to the NCAA, but by historical accident and Congressional apathy, the NCAA portends to regulate close to a half million college athletes every year, not to mention all the athletic department employees, while not allowing those athletes or employees membership in the NCAA or any say in how they are governed. Insult to injury, the NCAA disclaims any legal relationship with college athletes and employees. Non-profits all, the NCAA and its member conferences, colleges, and universities, this commercial revenue should be taxed under the UBIT theory, but the IRS seems not to care. How does the NCAA maintain its IRS Section 501(c)(3) charitable, nonprofit status, when it is not incorporated as a nonprofit, and when it engages in political lobbying—both of which disqualify it as a 501(c)(3), before we even get to the fact that it spends almost nothing on its tax-exempt purpose?
Where is the Department of Education in all of this, when the President is complaining about the rising costs of college, which can certainly be attributed to some extent to misallocation of resources to athletic departments? According to one of the leading experts in college costs, federal student grants now stand at about $49BB, and federal student loans now stand at about $105BB, annually, and all of this does not count non-student grants from places like NIH. What do we get for this? A national 55% graduation rate over six years! Remember when one was expected to graduate from a four year program in four years?!? Congress should be wondering what kind of Department of Education presides over such a debacle on so many levels. Congress should care a lot about all of this.
* Historical research for this post was provided at my request by and thanks to Kathleen M. Dugan, Esq., M.L.S., Librarian & Chief Administrator, and Sharla B. Johnston, M.L.S., Circulation Services Librarian, at the Cleveland Law Library.
Wednesday, August 21, 2013
Seriously? quote of the day
From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:
"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.
Leigh Steinberg's Sports Law Class at Chapman Law
Leigh Steinberg writes on his new Sports Law class at Chapman Law in Forbes. From his description, the class
… will be extremely interactive and emphasize real life skills.…They will learn how to negotiate by playing a general manager or player agent in a NFL first round contract signing. They will master win-win negotiating which meets both parties needs….They will experience “damage control”, having to defend an athlete gone wrong in front of a room of student reporters. They will learn how a player needs to accept responsibility and engage in prevention of a recurrence. ….Of course we will cover standard player contracts and collective bargaining agreements.I love the sound of the class, with a great list of guest speakers. The headline describes this as a "novel" approach to Sports Law -- I don't think that's the case, although I would attribute that exaggeration to a headline-writing editor rather than the author. Sports Law classes have often been taught as "simulation" courses since they first entered law school curricula. Phil Closius taught one here at Toledo well over a decade ago which featured contract-negotiation exercises. UCLA has a sports law simulation housed in its clinical program. What might be different and new about Steinberg's class is the introduction of guests into the simulation activities - which gets the class closer to feeling like a live-client clinic.
Monday, August 19, 2013
Say it ain't so, Joe
Tacopina's latest client is none other than Alex Rodriguez, the so-called "Bernie Madoff of baseball." Every time we think Joe has reached bottom, he dredges a little more from the pond.
And, of course, like any good high profile media mouthpiece, Tacopina had to enter the fray with a bang. What he has alleged, however, is far more scandalous than the offense his client is accused of committing. Tacopina has asserted that, in no less than last year's playoff series against the Tigers, the Yankees inserted an ailing A-Rod in the lineup because they wanted him to suffer a career ending injury.
In a recent article, Tacopina told the The New York Times that the Yankees "rolled him out there like an invalid and made him look like he was finished as a ballplayer."
Let's get this straight. It wasn't that the owners had a callous disregard for a player's condition but continued to play him because it was their best chance of winning. That one is old hat, having been voiced by such notables as J.R. Reed and Bill Walton. No, what Tacopina is saying is that the Yankees chose to play a position player they knew gave them less chance to win in the hope that it would rid them of having to play him next year. Bear in mind, this is the New York 27 World Championships Yankees we are talking about for whom winning it all is the only thing that is supposed to matter.
Like any good defense lawyer, Tacopina has no evidence for such a claim, at least none that he is bothering to share. If it were true, it certainly would be a more serious violation than ingesting banned performance enhancing drugs. It would be the equivalent of throwing a bout because the bosses had money on the other guy. It would make Joe Girardi the Joe Jackson of Managers.
Which brings me back to the idea of a practitioner of sports law. What separates it from other fields is both context and consequence. While the interests of the individual client remain paramount, the issues invariably resonate through the past and are sure to be heard going forward.
A-Rod claims not to have heard or read what his attorney has claimed to be facts. He should have read the playbook
Saturday, August 17, 2013
The Latest in the ARod Saga
While ARod has lost the support of MLB and fans for some time, this revelation, if true, may have finally turned fellow players and union against him once for and for all. Cheating is bad, selling out your brethren is worse.
Not surprisingly, editors of The Sports Law Blog, became "go to" sports law experts on the unfolding situation. Michael McCann penned a piece for CNNSI evaluating the potential legal ramifications of this latest twist in the ARod story in this article yesterday. I was interviewed on the leading sports radio show in Canada (eh!) by Bob McCown on his Prime Time Sports show on Sportsnet. You can listen to the interview at the 28:30 mark of yesterday's 4:00 pm hour here. [OK, I know a lead story on CNNSI is a tad more impressive than a 10 minute interview on Toronto Sports Radio but I'm trying....]
Well, I'm heading to Fenway to watch my beloved Red Sox battle the Yankees this afternoon...any recommendations on what I should put on the sign I'll be taking?
Tuesday, August 13, 2013
When a (Sports Law) Research Line Ends
Handbook on the Economics of Women in Sports. The 443 page tome was edited by Eva Marikova Leeds and Michael A. Leeds. I contributed a chapter entitled "The Goals and Impacts of Age Restrictions in Sports." As I was flipping through the pages, it dawned on me that the publication of my chapter marked the end of my decade-long inquiry into the legality and efficacy of minimum age rules in the sports industry.
My inquiry started as 2L, when I wrote a full length law review article examining the WTA Tour's so-called "Capriati Rule" under American antitrust law A few years later, I penned a case note about the Toscana v. PGA Tour case. After the NBA and NBPA agreed on a minimum age rule, I wrote a short piece about the new rule in basketball.
After a trilogy of law-focused articles, my attention turned to testing the efficacy (and effect) of such rules. With sports labor market data largely in the public domain, I opted to statistically test both the WTA Tour rule and the NBA-NBPA policy. The former was published in 2011 in the Journal of Labor Research. The latter was published last year in the Journal of Quantitative Analysis in Sports. With a dozen unrelated research projects in my queue and my interests moving elsewhere, I am fairly certain that my survey piece in the handbook edited by Leeds and Leeds will be my last contribution in this area for quite some time.
If/when there is another Clarett-type lawsuit challenging a sports league's age rule, there will, undoubtedly, be another flurry of academic work in the area. Likewise, on the empirical side, researchers will have access to larger data sets with less censored data in the years ahead. I will be very interested to see how this "sports law analytics" research line is extended by others.
Saturday, August 10, 2013
Will Pujols go through with defamation suit?
On the heels of Jack Clark's statements on a St. Louis radio program that Albert Pujols uses steroids (based, Clark said, on what Pujols' former trainer told him in 2000), Clark has been fired by the radio station and Pujols has announced his intent to sue Clark and the radio station for defamation. Pujols expressed his desire to "send a message that you cannot act in a reckless manner, like they have, and get away with it."
As I've written before, the threat of suit in the wake of cheating accusations is a two-edged sword. On one hand, the failure to sue often is taken as evidence that the allegations are true (i.e., "If the statements were false, why not sue?"). On the other hand, the threat of suit often looks like little more than posturing, an attempt to show that the accusations were false (i.e., "He wouldn't threaten to sue if the statements were true"), even if he has no real plan to go down this road.
Either way, there are reasons Pujols might not win his suit, even if Clark's statements were false. Pujols is a public figure and thus would have to prove by clear and convincing evidence that Clark spoke with "actual malice"--that he knew his statements were false or acted with reckless disregard for their false. Pujols' using "reckless" in his public statements is likely not accidental or coincidental. This barrier to recovery may deter him from initiating litigation in the first place. On the other hand, that legal standard may be exactly why Pujols would sue. Suing makes him look like a man fighting hard to vindicate his reputation against blatantly false and harmful statements, while the lawsuit's ultimate failure would have nothing to do with truth or falsity of the statements themselves.
Wednesday, August 07, 2013
Northwoods Baseball League
Tired of college athletes generating revenue yet receiving no compensation? If so, skip this post. If not, here's a novel way that seems to take advantage of the NCAA's definition of amateurism (restricing compensation to college athletes) in the sport of baseball: the Northwoods Baseball League.
Any true college baseball fan has heard about the Cape Cod League which started in 1885. The league is a non-profit tax exempt 501 (c) (3) organization run by volunteers, operating 10 teams competing during the summer. With over 250 alums in the major leagues, the Cape Cod League is a romantic venue offering elite amateur baseball players the ability to compete, prove themselves with wooden bats, and impress scouts. The college baseball players are allowed to have expenses covered but, to be clear, receive no salaries and thus retain their "amateur" status by the NCAA. The NCAA views the teams in this league as "club teams." Any profits that are generated make their way to charity.
Enter the Northwoods Baseball League in the Upper Midwest co-founded by former Boston Red Sox star Dick Radatz Jr. Same idea, bring college baseball players to the league during the summer, play in venues, attract crowds (over 950,000 fans a year) while only having to cover expenses because of the NCAA's restriction on compensation. One difference, this league is very much for profit. Thus, as the league generates significant revenue it skips the players and finds its way directly to the team owners. Currently there are 16 teams and new franchises are going for $1 million each.
Can you imagine a for-profit basketball league where elite college players were brought together, played in front of huge crowds over the summer, and franchise owners made millions? [I know, spare me the AAU comparison, at least it's a non-profit organization.]
Economics is a wonderful thing. At its essence, there is demand for a product (baseball) which generates revenue. Because of the NCAA's definition of amateurism, the labor producing the demand can't be paid. This means more money for those running the league. Wonder how many industries would love to have a system where employees couldn't be paid fair market value? I know it's the summer, and it's been months since I taught Sports Law, but isn't that an ANTITRUST violation in the real world?
For more on this league, read this article in the Boston Globe by Stan Grossfeld.
Monday, August 05, 2013
The Legal Implications of Alex Rodriguez's Suspension
I have a new article for SI on the legal implications of Alex Rodriguez's suspension. Hope you have a chance to check it out.
Also, Alan Milstein analyzes the suspension for Marketplace.
Friday, August 02, 2013
Words and actions
Riley Cooper, a member of the Philadelphia Eagles, is in deep trouble because he was video-recorded using a racial epithet in talking about who he was ready to get into a fight with. Cooper apologized all over the place (and not the typical celebrity non-apology apology) and was fined (but not suspended) by the team. Cooper today left the team to seek counseling and at least one Philadelphia commentator has suggested that this will cost him his job (and, implicitly, that no team ever will touch him).
But the NFL (all big-time sports, actually) are notorious for giving players second (and third and fourth and fifth) chances for off-field misconduct. Players who have engaged in domestic violence, sexual violence, sexual harassment, drunk driving, and other misconduct (again, involving action) are routinely welcomed back and allowed to continue playing for their teams, perhaps following a short suspension or fine. Without condoning, excusing, or minimizing what Cooper said, is dropping a racial epithet (in a context, by the way, where it was unquestionably lawful) really more unforgiveable than all of those things?
Thursday, August 01, 2013
The NCAA Accountability Act
New bipartisan legislation introduced in Congress today that would, if it became law, compel major changes to college sports administration. Jon Solomom of The Birmingham News has all the details on the NCAA Accountability Act.