Sports Law Blog
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Friday, November 28, 2014
Video not required

Deadspin reports on the arbitrator's decision overturning the NFL's indefinite suspension of former Ravens running back Ray Rice. The arbitrator determined that Rice did not misrepresent to the league what happened in the elevator, contrary to the league's stated basis for imposing a new punishment after the release of the video. Importantly, she pointedly rejected the idea that video was necessary to  understand what happened or that video should have changed anything about the appropriate punishment, that it was not : "That the League did not realize the severity of the conduct without a visual record also speaks to their admitted failure in the past to sanction this type of conduct more severely."

Ray Rice wins NFL appeal: the Legal Fallout

Former U.S. District Judge Barbara Jones tonight has issued a sharp ruling against the NFL and its suspension of Ray Rice. I have a column on that breaks down the legal impact and how it may lead to changes in the NFL.

Sunday, November 23, 2014
Antitrust professors amicus in O'Bannon

A group of antitrust professors has filed an amicus brief in the Ninth Circuit appeal in O'Bannon v. NCAA (media coverage here). I know nothing about antitrust. But the gist of the argument appears to be that once the district court found the NCAA had some rational basis for its limits, the antitrust Rule of Reason was satisfied and it was beyond the court's power to order the NCAA to change those limits.

Slava Voynov’s Immigration Wrinkle to his Domestic Violence Charges

As the NFL continues to make headlines with its continued domestic violence issues, the NHL proved last month that domestic violence problems are not just limited to pro football. In October, Los Angeles Kings star defenseman Slava Voynov was arrested following a domestic dispute with his wife that required her to receive medical attention at the hospital. He has been suspended by the Kings since the arrest, and this week he was officially charged by the Los Angeles District Attorney’s office with a felony count of corporal injury to a spouse with serious bodily injury. While Mr. Voynov must face the criminal justice system much like the more publicized NFL cases, he has many additional issues relating to his immigration status.

Slava Voynov is a native, and presumable still a citizen, of Russia. Thus, he is probably in the United States under nonimmigrant status as an athlete, or possible as a legal permanent resident if the Kings petitioned for a green card for him. Since he is not a citizen, he will have to worry about two different issues relating to United States immigration.

First, if he is convicted of the charged offense, he would become immediately deportable under current immigration laws. Further, the charge is considered a crime of moral turpitude, such that Mr. Voynov would be inadmissible to return to the United States should he ever leave the U.S. with that charge on his record. The distinction between being deportable and being inadmissible may seem small, but could have serious ramifications for Mr. Voynov. It is conceivable that he may accept a plea on the case such that he is not deportable, but is inadmissible. This would mean that he could remain in the United States, but should he ever leave (like say for a game in Vancouver), he would not be allowed to return.

A final immigration issue that Mr. Voynov must face is with Canada. Even if he were to somehow avoid immigration issues in the United States by taking a plea to a lower charge, he would be inadmissible into Canada with a criminal conviction for domestic violence in the United States. This means that even if he is somehow able to lower the charges and remain in the United States, he may not be allowed to travel to any of the Canadian games, where the Kings currently play about 15% of their schedule, not including the playoffs. If this occurs, even if the Kings keep Mr. Voynov on their roster, they’d certainly have something to say about paying out the full 100% of his six-year, $25 million contract, of which five and a half years still remain.

While the charge is still pending and nothing may result from this, it should be obvious that, although less publicized than the NFL cases, Mr. Voynov’s domestic violence charge has MUCH more serious consequences for him.

Friday, November 21, 2014
Dr. Paul Withers proposal to address issue of NCAA athletes signing autographs

Dr. Paul Withers, an astronomy professor at Boston University, recently emailed me an idea he has to address the issue of NCAA athletes--like Todd Gurley and Johnny Manziel before him--getting in trouble for signing autographs.

I've posted Dr. Withers' proposal in its entirety below.

Not sure if this is enough of a legal issue to fit in your usual portfolio of topics, but here's a way to solve the NCAA autograph problem. Seems extendable to other areas as well.

1. Current athletes sign $0 contract with company to sell their autographs. Since current athletes get $0, NCAA is happy. Or perhaps the current athletes pay the company $1 to sell their autographs and thereby improve and extend their personal brand and reputation.

2. Current athletes graduate into former athletes, then sign short-term $$$ contract with company to recruit next crop of current athletes. NCAA has no jurisdiction over former athletes. Current athletes, if they have any sense, will pay close attention to short-term $$$ contract received by former athletes.

3. There's room for multiple companies in this business, so no monopoly problem. Autographs can be immediately distributed into every possible avenue for sales with authentication, instead of needing to pass through an inefficient black market stage along the way, which will increase sales and profits.

4. All parties have incentive to honor the unwritten arrangements: companies need next year's athletes, who will recoil from any company that doesn't briefly employ well-paid former athletes, and current athletes can get surely get more money this way than via current shady and risky arrangements.

5. Worried that current athletes will lack information on which company to go with? Competition should ensure third-party verification of sales and obvious correlations between sales and post-university payments. Also, there's a market void for someone to set up a clearing house that buys information on post-university payments from former athletes (another income source for them), collates it all, and sells it to current athletes (worthwhile as a source of investment advice, plus likely to recoup some fraction of payment once they become a former athlete).

6. Why would a current athlete be the first to attempt this, without the benefit of clear precedent from prior years? First mover advantage. This individual would be the only current athlete whose autographs are available in vast quantities for sale via every legitimate channel imaginable, so sales would be higher than otherwise. Once they are a former athlete, the company can give this one individual a huge payment in order to ensure recruitment of dozens of next year's students and solidify its own first mover advantage.

Paul Withers

Paul Withers                            Astronomy Department
Office  +1 617 353 1531                 Boston University
Fax     +1 617 353 6463                 725 Commonwealth Avenue
Email                  Boston MA 02215, USA

Wednesday, November 19, 2014
Does Adrian Peterson have a good legal case against the NFL?

I attempt to answer this question in a new Sports Illustrated column. Here's an excerpt:

In order to obtain a temporary restraining order, Peterson would need to convince a judge that unless he is allowed to play again this season, he would suffer irreparable harm. Peterson arguing that his NFL suspension will cost him money in lost salary would not be a winning argument for purposes of irreparable harm. Courts are generally skeptical of irreparable harm arguments when monetary damages can later repair the harm. As a result, Peterson would need to establish harm beyond merely lost salary. He would likely insist that not playing again this season would cause lasting and permanent damage to his NFL career and image. More specifically, he might insist that his football skills and physical abilities would atrophy if he doesn’t play again. Similarly, Peterson might assert that the Vikings and other teams would be less interested in his services if he misses nearly an entire season. 

The NFL would reject these so-called "harms" as speculative at best. The league would also stress that Peterson’s predicament is a result of his own misconduct as a parent.

To read the rest, click here.

Sunday, November 16, 2014
Game-Changer or Trojan Horse? Making Sense of Adam Silver's Sports Betting Comments

NBA Commissioner Adam Silver caused a stir last week when he penned a New York Times op-ed piece that called for the legalization (and federal regulation) of sports betting. (For a great analysis of Commissioner Silver’s op-ed, I highly recommend Ryan Rodenberg’s article, co-authored with Jon Wertheim, as well as John Brennan’s fine work in the Bergen Record and Meadowlands Matters). Despite his clarion call for legalization, Mr. Silver’s comments (his most expansive to date on the subject) will likely have no impact on the current federal court case in which the four major professional sports leagues and the NCAA are suing to block New Jersey from implementing its latest sports betting law. As SLB stalwart Michael McCann told John Brennan of the Bergen Record:
I don’t think Commissioner Silver’s op-ed harms the NBA’s legal argument against New Jersey’s efforts to legalize sports betting, because Silver has merely encouraged Congress to consider new federal laws that would give states flexibility in legalizing it. The NBA’s case is built on the contention that New Jersey’s proposed sports betting law would violate existing federal law, specifically the Professional and Amateur Sports and Protection Act. Moreover, Judge Shipp, and any appellate judges who hear this case, would also evaluate the legal arguments based on the laws implicated in the case, not on hypothetical laws that don’t yet exist.
But what struck me about the op-ed more than anything else was its timing. Why now? Was it just an organic evolution of Commissioner Silver's progressive views on the subject, which are entirely consistent with his prior statements made at last year's Sloan Conference and this year's Bloomberg Sports Business Summit? Or was there some strategic reason to drop this bombshell now--just days away from the oral argument on the leagues' motion for a preliminary injunction? Call me a cynic, but I believe the timing of its publication was partly strategic: to diminish the New Jersey law and, more importantly, to influence the court prior to an important hearing. After all, this is the same brilliant lawyer who outmaneuvered the hyper-litigious Donald Sterling at every turn and whose successful legal strategy paved the way for the quick transfer of ownership of the LA Clippers to Steve Ballmer. Remember, throughout the Donald Sterling probate court trial, a number of "NBA-aligned" individuals made statements that were viewed (at least by me) as an attempt to influence then-ongoing court proceedings. Doc Rivers threatened to quit as head coach of the Clippers if Donald Sterling remained as the team owner; and Chris Paul said that a league-wide player boycott was a real possibility if Donald Sterling were still the Clippers owner when the regular season began. These statements were made during the midst of the probate court trial. So, maybe, this tactic is part of the NBA's playbook.

This strategy appears to have succeeded, as Commissioner’s Silver’s emphasis on the need for a “comprehensive federal solution” has already gained traction in the “court” of public opinion and made New Jersey’s law appear to be the problem (e.g., unregulated sports betting) rather than the solution (e.g., regulated sports betting). By offering up the olive branch of a federal solution in the not-too-distant future, Commissioner Silver has shifted the debate away from the current case, which no doubt was his intent.

As Michael McCann aptly observed, Commissioner Silver’s comments won’t help New Jersey on Thursday (or in its eventual appeal to the Third Circuit) because they address future legislative reform rather than any present legal issues before Judge Michael A. Shipp (the Trenton-based federal district judge who is assigned to the case). The issue presently before Judge Shipp is whether New Jersey’s "partial repeal" of its state-law ban on sports betting -- the sole beneficiaries of which are state-licensed casinos and state-licensed racetracks -- runs afoul of PASPA's ban against state-regulated sports betting. In Christie I, the Third Circuit declared that "we do not read PASPA to prohibit New Jersey from repealing its ban against sports wagering," adding that "it is left up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be."

Judge Shipp (and, eventually, the Third Circuit) will have to determine just how far a “repeal” must go in order to fit within the contours of the Third Circuit majority opinion. New Jersey will, of course, zero in on the language in the Third Circuit majority opinion leaving it up to the states to decide "what the exact contours of the prohibition will be.” New Jersey maintains that its “partial repeal” reflects the “exact contours of the prohibition” that it has decided -- as a policy matter -- to enact in conformity with the Third Circuit majority opinion. The leagues, understandably, take a much more narrow view of the Third Circuit language, arguing that only a “complete repeal” will suffice and that what New Jersey has done here is not a true repeal at all, but, rather, a “back-door” authorization of sports betting.

Adam Silver’s op-ed article does not speak to any of these issues. To the contrary, Commissioner Silver’s statements are entirely consistent with the leagues’ present position – that New Jersey’s repeal law violates PASPA. Despite embracing legislative reform (at the federal level), Commissioner Silver continues to stick to the party line -- that “unregulated” sports betting (which is what New Jersey proposes) will negatively affect the integrity of the games and cause irreparable harm to the leagues. Thus, there is no inconsistency between his op-ed and the leagues’ present position on the issues in this case.

While some might argue that Commissioner Silver’s bombshell undermines the leagues’ argument that they will suffer “irreparable harm” (one of the requirements for a preliminary injunction), it is important to remember that the leagues do not need to make a factual showing of irreparable harm in order to prevail on Thursday (or before the Third Circuit). Rather, irreparable harm would be “presumed” based on a violation of the Supremacy Clause (e.g., the New Jersey repeal law contravenes federal law). Both the district court and Third Circuit invoked this presumption in Christie I, and will likely do so again in the current case if they determine that the New Jersey repeal law violates PASPA.

Notably absent from Commissioner’s Silver’s call for the legalization of sports betting is any reference to what the leagues would want in return – monetarily, that is. Previously, Silver was quoted as saying that expanded legal sports betting was “inevitable” and that the leagues would be willing to “participate” in it (presumably, for a price). Commissioner Silver’s op-ed skirts that issue entirely. However, expect the leagues to insist on a royalty or licensing fee (either in the form of a percentage of the total amounts wagered or a flat fee from licensed gaming operators) as a condition to acquiescing to any future federal legislative reform. But it remains to be seen whether the other sports leagues (e.g., the NFL, NHL, MLB and NCAA) share Commissioner Silver’s progressive views on sports gambling.

Nonetheless, Adam Silver’s bombshell is already seen in many corners as a “game-changer” in the sports betting legalization movement (both for New Jersey and other states). I would not be surprised to see something develop on that front by 2016. The biggest impediment to expanded legal sports betting – Senator Harry Reid (Nevada’s protector) – has been removed with the recent election results. With the Republican Party now holding a majority of U.S. Senate seats, Senator Reid may not be able to block new federal legislation to expand single-game sports wagering beyond Nevada. Perhaps, a Republican-controlled Congress would be willing to trade expanded sports betting for a tightening of the Wire Act (to eliminate or heavily restrict online gambling). It may be a bet worth placing.

Wednesday, November 05, 2014
Did Jameis Winston's lawyer break the law by tweeting out the name of Winston's accuser?

Did Jameis Winston's lawyer break the law by naming Winston's accuser on Twitter? I have a column tonight for Sports Illustrated on that issue. Hope you can check it out.

Can the Yankees void Alex Rodriguez's contract now that he's admitted to using steroids?

Adrian Peterson pleads guilty: what's next for his NFL career?

I have a new column for Sports Illustrated on the legal and NFL impact of Adrian Peterson pleading guilty to a misdemeanor charge relating to his disciplining of his four-year-old son.

I was also a guest on The Today Show to discuss this story:

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Tuesday, November 04, 2014
Preview of Ray Rice Appeal

I have a new preview for Sports Illustrated on the Ray Rice appeal and what it means for Rice, NFL commissioner Roger Goodell and the league. Hope you have a chance to check it out. I also spoke with NPR's All Things Considered about the hearing.

Saturday, November 01, 2014
Analyzing Women's Anti-Turf World Cup Lawsuit against FIFA

I have a new column for Sports Illustrated on women soccer players pursuing a legal claim against the Canadian Soccer Association and FIFA over the 2015 World Cup being played on artificial turf rather than natural grass.