Sports Law Blog
All things legal relating
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Thursday, January 28, 2016
 
Intentional fouls and limiting rules

The NBA practice of intentionally fouling a poor free-throw shooter away from the ball (and the entire play) is spreading. Last week, the Houston Rockets began the second half by having the same player foul an opponent's poor shooter five time in eight seconds. Last night, two different teams fouled someone before he could throw the ball inbounds. This season, 27 players have been subject to the "Hack-a-_____." In October, NBA Commissioner Adam Silver announced that, although the league has been studying the issue, it was not considering rule changes to stop the practice.

Critics of the Infield Fly Rule often point use this situation to argue against the IFR, insisting that the situations are the same and, if basketball does not require a special rule, neither should baseball. But the argument does not work because the situations are not the same. Like the infield fly, "Hack-a-____" involve teams intentionally acting contrary to their ordinary athletic interests (defenders ordinarily do not want to foul, especially a player who is uninvolved in a play and no threat to score); it gives one team an advantage over the other (statistics of points-per-possession show that a good offensive team is substantially worse off having its worst FT shooter shoot over and over than running its regular offense); and the advantage is great enough that teams have the perverse incentive to keep doing it (hence the reason the strategy is spreading). But "Hack-a-____" lacks the necessary substantial imbalance in control over the play--the fouled team can counter the strategy by making their damn free throws, or at least more of them to render the strategy no longer worthwhile. Limiting rules do not exist to save teams and players from themselves or their own shortcomings.


Instead, any rule to stop this practice would be for aesthetic purposes, not cost-benefit balance. The game becomes ridiculous and boring to watch (watching a parade of free throws is bad; watching a parade of missed free throws is worse). Eventually fans might get sick of what they are watching. To be sure, some aesthetic concerns underlie the IFR; we would rather see players catch easily playable balls than not catch them. But the IFR situation also involves an extreme cost-benefit imbalance. Aesthetics provide the sole basis for eliminating intentional fouls.

An interesting question is what any limiting rule might look like for the NBA. My proposal would be to give the offense a choice following an off-the-ball intentional foul--shoot the free throws or get the ball out of bounds. All fouling would give the defense is a chance to steal the ball on the inbounds play, although steals or turnovers on such plays are relatively rare, while incurring the cost of running up their foul totals. This change should eliminate the perverse incentive; there is no incentive for the defense to intentionally foul when the benefit is a small chance of getting a turnover on the inbounds play, but little or no chance that the offense will choose to have the bad shooter go to the line.

Sunday, January 24, 2016
 
Distributive injustice: An ethical analysis of the NCAA's "collegiate model of athletics" and its jurisprudence

I'm pleased to announce the publication of the above-referenced article in The International Sports Law Journal that I co-authored with Richard Southall (South Carolina), which can be downloaded from SSRN here.

Abstract:

The NCAA’s purported philosophical justifications for its ‘‘Collegiate Model of Athletics’’ are embedded within its seven stated ‘‘Core Values’’ and ‘‘Principles’’, which are based on a distribution principle of strict, or radical, equality in which it is believed societal benefit or the ‘‘greater good’’ is achieved if universities can lawfully conspire to compensate all athletes at the same level. From this theoretical perspective, the authors scrutinize two ethical frameworks most often asserted by the National Collegiate Athletic Association (NCAA) to justify exploitation of profit-athletes in the revenue-generating sports of Football Bowl Subdivision (FBS) football and Division I men’s basketball: Classical Utilitarianism and Paternalism. From an analysis of several court rulings over the past 40 years involving challenges to the NCAA’s ‘‘amateurism’’ principles, the authors found, in rulings favoring the NCAA, the judges implicitly supported their decisions utilizing the NCAA’s utilitarian and paternalistic justifications for its Collegiate Model of Athletics. They recommend courts should balance considerations of utilitarianism and paternalism against normative principles of honesty, harm, autonomy, justice, and an adult individual’s fundamental right to maximize economic value and self-worth free of conspiratorial restraints.

Thursday, January 21, 2016
 
Inaugural Boston College Sports Law Symposium

On January 30, 2016 the Boston College Law School, or more specifically the students of the BC Sports & Entertainment Law Society, will be hosting the Inaugural Boston College Sports Law Symposium. The event, open to the public, will consist of three panels:

Panel One: Sponsorship & Sports (11:00 am to 12:00 pm)
Moderator: Prof. Alfred Yen, Boston College Law School

Panelists:
Richard Flagger, DLA Piper
Josh Gallitano, New Balance
T.K. Skenderian, Boston Athletic Association

Panel Two: "So You Want to be an Agent?" (12:15 to 1:15 pm)
Moderator: Joseph Rosen, Brown & Rosen / Orpheus Sports
Panelists:
Tom Condon, CAA
Jay Fee, Nelson Mullins
Mook Williams, Symmetry
Kristen Kuliga, K Sports

Casual Networking Lunch (1:15 to 2:00 pm)

Panel Three: The Business of the NCAA (2:00 to 3:00 pm)
Moderator: Warren K. Zola, Boston College Carroll School of Management
Panelists:
Paul Kelly, Jackson Lewis
Michael McCann, University of New Hampshire Law School / Sports Illustrated
Garin Veris, Mass Maritime and former Stanford University & NE Patriot player

Note: This event is open to the public. Please email Laura Berestecki at berestic@bc.edu (include your full name and school or company) to register.

Wednesday, January 20, 2016
 
More Foreign Athletes Getting in Possible Immigration Trouble

In 2015, Los Angeles Kings defenseman Slava Voynov made news by being forced to leave the United States when he was convicted a crime of domestic violence and was subsequently placed in removal proceedings (more commonly known as deportation proceedings).  It seems that the far reaching consequences of that case did not reach Colorado Rockies shortstop Jose Reyes, however, who was arrested in October 2015 in Hawaii for misdemeanor "Abuse of family or household members".

Mr. Reyes is now scheduled for trial on this case this April.  If he either takes a plea deal prior to then or is convicted, it is certain that Immigration and Customs Enforcement (ICE) will look into the case, as Mr. Reyes was born in the Dominican Republic and presumably entered the United States with either an athlete's visa or as a legal permanent resident.

If an individual is lawfully present in the United States but not a United States Citizen, there are a number of reasons he could be removed by ICE.  The main ones that would affect Jose Reyes are that an individual can be removed if convicted of an aggravated felony, a crime involving moral turpitude that carries a sentence of a year or more, or a crime involving domestic violence.

A review of the criminal statute under which he is charged shows that it is very unlikely that this would be considered an aggravated felony.   Further, the charge is a misdemeanor, which means that there cannot be a sentence of a year or more.  This leaves the potential for removal due to having committed a crime involving domestic violence.

As a comparison to Slava Voynov's removal for having committed a crime involving domestic violence, Mr. Reyes is in a better position than Mr.Voynov was.  Unlike Slava Voynov's case from last year, Mr. Reyes' charge is not automatically a domestic violence crime under immigration laws because there are ways to be convicted of the charge of "abuse of family or household members" that do not involve violence.  For instance, one could be convicted of that crime by refusing compliance with an order of a police officer investigating possible domestic violence, even if no violence ever occurred.

This is not to say that he will have no problems with the immigration service, however.  If the criminal complaint states that he physically assaulted a family member, or if in a plea deal he admits to physically assaulting a family member, those documents could potentially be used against him in a removal hearing.
To further complicate the matter, although the Colorado Rockies do not play the Toronto Blue Jays this year, a conviction for a crime involving domestic violence could also be used to deny Mr. Reyes admission into Canada for any games there in the future.
Luckily, there are ways to structure a potential plea in this case to avoid immigration consequences if the district attorney is willing to work with defense counsel, but only time will tell if Jose Reyes will end up in ICE custody.

Monday, January 18, 2016
 
What a Racket

Literally. Apparently the BBC and BuzzFeed have uncovered a cache of documents revealing that the Capos that control Professional  Tennis have tried to keep secret since 2008. These documents seem to suggest at least 28 top level players were implicated in throwing matches to benefit the wagers placed by Russian mobsters not just in low level tournaments but in events as vaunted as Wimbledon. Holy Strawberries and Cream! Who even knew you could bet on Tennis. Next someone will tell me you can have a Daily Fantasy Tennis Team. At least no one is accused of deflating those neon yellow balls to gain some Advantage.

Monday, January 11, 2016
 
No Question, PASPA Applies to Daily Fantasy Sports


The recent controversy surrounding daily fantasy sports (“DFS”) has highlighted both the need to regulate the industry and also to clarify its legal status. State legislatures are now attempting to shore up the legal status of DFS while proposing regulations aimed at protecting consumers. Since the beginning of 2015, nearly 20 states have weighed in with some form of proposed DFS legislation. These bills run the gamut: several of the bills “authorize” DFS as legal (one even proposes an amendment to that state’s constitution); some propose a “licensing” regime (whereby operators are required to pay substantial annual sums for the privilege of doing business in that state); others simply “regulate” DFS without explicitly authorizing or licensing the activity, whereas, at the other end of the spectrum, a few states “exempt” fantasy contests from the ambit of those states’ gambling codes. 

While these are legislative proposals are laudable, and, perhaps, even necessary to protect consumers, they may be in violation of the Professional and Amateur Sports Protection Act (“PASPA”), a 1992 federal law which prohibits state-sponsored sports betting in every state except for those states (such as Nevada) that had conducted a sports wagering scheme at any time between January 1, 1976 and August 31, 1990.

A. The Plain Language of PASPA

While PASPA is commonly understood to prohibit state-sponsored sports betting on the “outcomes” of professional and amateur sporting events, it also contains language that is arguably (and perhaps inarguably) directed at fantasy sports. In its recently-released white paper, the Massachusetts Gaming Commission cautioned that PASPA "potentially presents the greatest constraint to state action to address DFS," adding that "at first glance, PASPA may constrain the Legislature from any legislation that directly or indirectly permits or regulates DFS."

Section 3702 of PASPA states in pertinent part:

“It shall be unlawful for – 

(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or

(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity, 

a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographic reference or otherwise) on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.”

28 U.S.C. § 3702 (emphasis added)

Fantasy sports are inextricably tied to the individual “performances” of athletes in a game rather than on the final score of the game itself. Without the underlying performance statistics of the real-world professional or amateur athletes, there are no "winners" or "losers" in a DFS contest. As the Massachusetts Gaming Commission explained in its comprehensive white paper, "the success of the individual athletes that make up a participant's team, when filtered through the scoring rubric set up by the DFS operator, will result in the win or loss of the participant." While acknowledging that a DFS participant is not "betting" that a specific player will achieve a specific statistical milestone, such as scoring a certain number of touchdowns in a single game, the Massachusetts Gaming Commission observed that the DFS participant is nonetheless betting that "the aggregate performance of the individual athletes on his [fantasy] team will exceed the aggregate performance of the individual athletes on his opponents' [fantasy] teams." "Simply stated," as the MGC's white paper concludes, "if there were no underlying athletic performances, there would be no DFS."

Thus, a state legislature considering whether to expressly legalize daily fantasy sports must be cognizant of PASPA's prohibitions. As the statute makes plain, states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" any lottery, sweepstakes or other betting, gambling or wagering scheme based directly or indirectly on . . . one or more performance of athletes in such games."

PASPA's ban on state-sponsored sports wagering also applies to private parties acting "pursuant to the law or compact of a governmental entity." See National Collegiate Association, Inc. v. Christie, 730 F.3d 208, 216 (3d Cir. 2013) (“The prohibition on private persons is limited to any such activity conducted ‘pursuant to the law or compact of a governmental entity.'”). These private persons would theoretically include DFS operators, professional sports leagues and teams, and media companies. To date, only two states (Kansas and Maryland) have expressly legalized fantasy sports. However, this "private person" language may take on greater significance in 2016, as a number of other states move to legalize DFS.

Although PASPA has not yet surfaced as an obstacle to state legalization of DFS, it may emerge as an important issue in 2016 as new state legislative measures are introduced. Any analysis of a DFS legalization bill will undoubtedly center on two key issues: (1) whether DFS is a "lottery, sweepstakes or other betting, gambling, or wagering scheme" based, directly or indirectly, on "one or more performances" of amateur or professional athletes; and (2) whether a state's explicit legalization of DFS rises to the level of "promoting," "authorizing," or "licensing" for purposes of PASPA.

B.  PASPA’s Legislative History

Some might argue that DFS is not a “lottery, sweepstakes or other betting, gambling or wagering scheme" within the meaning of PASPA because DFS is a "contest of skill” (with skill predominating over chance), whereas traditional single-game sports betting (the main focus of PASPA) entails more “chance” than “skill." But PASPA’s legislative history suggests that the “skill vs. chance” distinction has no bearing on the applicability of PASPA.

To that point, the Report of the Senate Judiciary Committee (Senate Report 102-248) accompanying PASPA states as follows:
The prohibition of section 3702 applies regardless of whether the scheme is based on chance or skill, or a combination thereof.  Moreover, the prohibition is intended to be broad enough to include all schemes involving an actual game or games, or actual performance therein, including schemes utilizing geographic references rather than formal team names (e.g., Washington vs. Philadelphia), or nicknames rather than formal names of players”) 
Sen. Rep. 102-248, reprinted in 1992 U.S.C.C.A.N. 3553 (emphasis added)

This language could not be any clearer. It states that PASPA is  is “broad enough” to include "all schemes" involving an actual game or games, "or actual performance therein." The Massachusetts Gaming Commission similarly observed in its white paper that PASPA's legislative history "clearly demonstrates that the statute was designed to have a broad scope applying to a wide swath of 'schemes' regardless of the balance between chance and skill." While there is no need to even resort to the statute's legislative history given that the plain language of PASPA is clear and unambiguous, the legislative history nonetheless belies any argument that PASPA is inapplicable to fantasy sports contests.

C.  Does the Later-Enacted UIGEA Override PASPA?

Some have also posited that PASPA was “superseded” by the Unlawful Internet Gambling Enforcement Act (“UIGEA”), which was enacted nearly 15 years earlier. In fact, one DFS payment processing company (which shall remain nameless) specifically requires a legal opinion from operators on this point before it will agree to process DFS transactions. Presumably, lawyers drafting legal opinions for the use and benefit of DFS payment processors have opined that UIGEA "implicitly supersedes" PASPA. But any such conclusion or opinion would be a huge stretch, in my view.

UIGEA, which generally outlaws internet gambling, contains an exemption for fantasy sports contests that meet certain criteria. PASPA, on the other hand, prohibits states from authorizing sports gambling schemes based on the “performance” of athletes in amateur or professional sporting events.

Under the interpretive principle known as lex posterior derogat legi priori, “a later statute takes away the effect of the prior one.” But, as the governing case-law makes clear, the later statute must either "expressly repeal", or be "manifestly repugnant to," the earlier one.

This rule of interpretation cuts against the notion that UIGEA supersedes PASPA. There are several reasons for this. First, UIGEA does not expressly repeal PASPA. Neither the UIGEA statute nor the legislative history preceding its enactment makes so much as even a passing reference to PASPA. Second, UIGEA is not “manifestly repugnant” to PASPA. The two federal statutes have entirely different aims: UIGEA targets the “recipients” of payments associated with unlawful internet gambling transactions, whereas PASPA simply forbids "governmental entities" (including states and recognized Indian tribes) from “authorizing” new sports gambling laws. They are simply not in conflict.

Further, UIGEA’s “Rule of Construction” makes clear that UIGEA does not supersede other federal or state laws:
No provision of this subchapter shall be construed as altering, limiting, or extending any Federal or State law or Tribal-State compact prohibiting, permitting, or regulating gambling within the United States.
31 U.S.C. 5361(b)

This statutory language should put to rest any contention that UIGEA superseded, altered or supplanted PASPA. Thus, state legislative bodies which are weighing whether to legalize daily fantasy sports need to be cognizant of the constraints imposed by PASPA. As I will explain in a future piece, several state legislatures (most notably, those in Florida, California, Minnesota, Indiana and Pennsylvania, to name just a few) have not heeded this message and may unwittingly expose their prospective fantasy sports legislation to a future legal challenge under PASPA.

Sunday, January 10, 2016
 
Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal likely is that she knows she will lose, because students are losing all of these cases.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.