Sports Law Blog

Reebok files its Brief in American Needle v. NFL

2009-11-19T17:15:00.001-05:00

This past Tuesday was the deadline for the respondents in American Needle v. NFL to file their briefs with the United States Supreme Court. Although the NFL's brief is not yet publicly available, the brief submitted by Reebok, the NFL's co-defendant in the case, is now available to be downloaded. Meanwhile, for those interested in getting a preview of the NFL's argument, both ESPN.com's Lester Munson and the SportsBusiness Journal's Liz Mullen have posted articles discussing the brief.

The earlier-filed briefs by the petitioner, American Needle, and its supporting amici are available here and here.

Commissioner as Justice or Executive? Thoughts on Zelinsky

2009-11-17T09:45:00.008-05:00

Mike already mentioned Aaron Zelinsky's new essay (forthcoming in Yale Law Journal Online) arguing that the better baseball analogy is between Supreme Court justices and the baseball commissioner. Aaron sent me a draft of the paper and I made a few comments; he gave me permission to reprint them (in much expanded form) here.

For starters, the analogy does work in some respects. The commissioner (working, in part, with the owners) makes prospective rules of general applicability, umpires apply them in particular game settings, and the commissioner corrects their understanding of those rules when it believes the umps got it wrong.

The problem with this is that the Supreme Court makes prospective rules within the confines of review of lower court judgments through case-based decision-making. Not only does the Court establish a rule going forward, but it also dictates something about the outcome of a specific legal dispute. By contrast, the commissioner virtually never reverses a judgment (a particular ball/strike/safe out call) issued by an umpire; and he certainly virtually never reverses the sum-total of all umpire judgments, the result of a single game. The Pine Tar Game in 1984, which Aaron discusses in his paper, is one of the rare examples of this. Of course, that reversal was possible only because the umps' decision came on the very last play of the game; if it had happened in the 5th inning, the league might have had a harder time outright reversing the outcome.

Rather, it seems to me that the commissioner is better thought of as a legislator. Or better still, as the executive working together with the various teams/owners/GMs acting as the legislature. In most of the examples Aaron presents (the calling of balks, changing the strike zone, etc.), the commissioner has seen how umpires have been interpreting and applying the rules, not liked that approach, and changed the rules (or ordered a different interpretation) going forward. This very much how Congress (or Congress and the President) interact with the courts on matters of subconstitutional law--courts apply the rules in cases and, when Congress does not like the way the rules are being interpreted, understood, or applied, it changes the rules prospectively, to be applied by courts in future cases. In fact, the one thing Congress cannot do is dictate case-specific outcomes to courts; it can only set the rules

Put somewhat differently, the Supreme Court and the trial courts (who Aaron says are better comparable to umpires) are engaged in a version of the same enterprise--deciding discrete cases. The commissioner and the umpires are doing something very different from one another, just as the legislature and the courts are doing something very different from one another.

Of course, much depends on whether we see the strike zone (or the rules of the game more generally) as analogous to statutes or to the Constitution. If the strike zone is statutory, then commissioner-as-Congress makes sense, in terms of degree of control. If the strike zone is constitutional, then this does not work.

Moreover, Aaron's analogy potentially breaks down along a couple of points.

First is the difference between how the Commissioner makes legal rules to guide umpires on the ground and how the Supreme Court does. There is a difference between case-based, litigation-bound rulemaking that courts do and the more free-standing prospective rulemaking that the Commissioner engages in. Even if the Supreme Court is more concerned with rulemaking than error correction, it still makes its prospective rules rules only in the context of litigation and in the context of reviewing decisions by lower courts. While it can reach out to do a lot when it chooses, it does not have the type of free-standing rulemaking authority the commissioner has.

Second, the resulting rules are different. The "judicial minimalism" trend (espoused by C.J. Roberts and Justice O'Connor and scholars such as Cass Sunstein) affects the analogy. The Commissioner is not and arguably should not be "minimalist"--he goes around and makes the generally applicable prospective rules he believes necessary. A Justice committed to minimalism--and bound by case-based decisionmaking--will produce less far-reaching rules. And those minimalist rules arguably will be harder to apply in future cases because their contours are less clear and more in need of fleshing out by lower courts.

Third, the Commissioner is able to act unilaterally in the best interests of the game. Aaron's essay focuses heavily on the way commissioners (notably Bart Giamatti, but including others) have wielded individual power. An individual justice can do only what four other colleagues are willing to go along with; the resulting legal rules are affected by that deliberative group-based process (as a host of recent poli sci literature has demonstrated), usually by being narrower and less far-reaching. Now maybe this means that proper analogy is not Commissioner/Justice but Commissioner/Court. But we still have to account for the differences in how an individual act as opposed to how a collective acts.

Fourth, the commissioner's realm is such that he can, if he chooses, wade into a larger swath of potential areas and issues that affect how umpires call the games. The Supreme Court, even if it wanted to hear more than the ridiculous 75 cases it hears now, could not reasonably take on any substantial percentage of the cases or issues brought to the courts in a given year. At its peak, the Court in the 1970s would hear 150-200 cases per term, a tiny fraction of the cases brought in federal and state courts.

But that points up one last break in the analogy. Aaron's argument is systemic--trying to place everyone in comparable places within the system of baseball or the judiciary. But there is no rulemaking buffer between the commissioner and the umpires; the commissioner makes the rules and the policies, the umpires follow. But the Supreme Court is not even the primary rulemaker guiding the lower courts; that role is played by the courts of appeals, especially given the Supreme Court's small caseload. And if the commissioner is the Supreme Court and the umps are the trial courts, we need to find someone in MLB who is somehow analogous to these intermediate appellate courts that do make binding prospective rules, but in a far broader array of cases.

The dangers of consequentialism

2009-11-16T06:33:00.004-05:00

Everyone is talking about Bill Belichek's decision to go for it on 4th-and-2 from the Pats' own 28 with around two minutes left (sorry Mike). And most people (including the NBC commentators speaking three-and-a-half minutes after the game) have concluded it was a bad decision. But the only reason they offered as to why the call was bad is that it did not work. Had it worked, it would have been called gutsy and a brilliant decision.

This is the problem--in both sports and law--of pure consequentialism, in which the a priori wisdom of a decision is evaluated solely by the outcome. But the decision to go for it cannot be right or wrong based solely on the result. The result is good or bad; but the decision must be evaluated independent of the outcome. Evaluating a decision as right or wrong must be based on the quality of the reasoning that went into it. Since 2001, the Pats have converted 63.5 % of attempts on 4th-and-2-or-less, a higher percentage when Brady is the quarterback. And on a day in which the offense racked up more than 400 yards and generally had moved at will, those sound like pretty good odds. Plus, in the situation, the Colds defense would be particularly worried about jumping offside, so their aggression may be ever-so-slightly-restrained. All-in-all, it strikes me as a highly unconventional, but hardly unreasonable or reckless decision. And, in fact, the play worked, except Fault did not catch the ball cleanly, thus losing forward progress as to the spot.

Gregg Easterbrook writes the Tuesday Morning Quarterback feature for espn.com and he is constantly arguing that coaches should go for it on 4th-and-short, particularly around midfield and deep in opposing territory. I am looking forward to what he has to say about this one.

Update:

The folks at Advanced NFL Stats, who know stuff about mathematical analysis that I don't, say that Belichek made the right decision. (H/T: Deadspin) The success rate on 4th-and-2 is 60% and teams score a touchdown from the opponent's 28 with 2:00 remaining approximately 53% of the time. This puts the Pats in a statistically better position than punting would have.

Further Update:

Easterbrook weighs in: Belichek was absolutely right to go for it (although he questions some of the other calls and moves, particularly the call on 3d-and-2). Easterbrook also takes on one of the sillier memes about this--Tedy Bruschi saying Belichek showed a lack of faith in his defense--by pointing out that what Belichek did was to show faith in his offense to get two yards on a day in which it averaged more than 6 yards a play.

The "lack of faith" meme rests on the assumption (which Easterbrook has been fighting) that going for it on 4th down is so far out of the norm that it is justified only in special circumstances. The assumption is that an offense really only has three downs to get a first down ordinarily and to use an additional down shows desperation of some sort--here, lack of faith in the defense. But if the mindset is that four downs means four downs and the percentages favored New England, there was nothing insulting to the defense here, just a faith in the offense within the normal rules of the game (four downs to try to get a first).

Aaron Zelinsky on Benching the Judge-Umpire Analogy

2009-11-15T11:17:00.006-05:00

Aaron Zelinsky of Yale Law School has just posted on SSRN a draft of his forthcoming piece in Yale Law Journal Online titled "The Justice as Commissioner: Benching the Judge-Umpire Analogy". It's an excellent read. Zelinsky traces the judicial history of the judge-umpire analogy since 1886, concluding that it was intended for trial court judges, and meant as a model to be rejected because of an umpire's passivity. In its place, Zelinsky proposes that Supreme Court Justices are properly analogous to Commissioners of Baseball, since both provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power.

Check out Aaron's draft here. We have also discussed this analogy on our blog -- see commentary by Howard, Geoff, and me.

Boise State Athletic Department Selling Stock

2009-11-12T07:00:00.007-05:00

USA Today is reporting today that Boise State has officially formed a non-profit corporation and will begin selling shares to the public at $100 per share in hopes of raising $20 million (Boise State Athletic Department Hopes Stock Offering Raises $20 Million). AD Gene Bleymaier said, "If we are to continue the success we are enjoying now we must generate new revenues to pay for coaches' salaries, scholarships and facilities." The shares will not pay dividends, but shareholders can vote on members of a 12-person board at an annual meeting and the board will determine how money raised through the offering would be spent. Bleymaier also said this fundraising program mirrors the offering made by the Green Bay Packers when they raised $24 million in the sale of more than 105,000 shares back in 1997.

If this is true, needless to say, it's a very interesting development. One would certainly think this has to violate some provision, somewhere, in that 437-page NCAA Bylaw manual. It also raises all kinds of interesting corporate law questions in the context of fiduciary duties, state and federal securities regulations and non-profit corporation laws, just to name a few. The more I think about it, this has to be a joke, right? But perhaps this is no different than what is already taking place in big-time intercollegiate athletics, the only difference is that we call them boosters instead of shareholders.

This new development also relates to the topic of my article I posted on two days ago to the extent the proceeds generated from this stock sale fund coaches' salaries. Boise State along with Cincinnati and TCU are prime candidates to have their successful football coaches solicited by competitor schools, making them soon-to-be victims of both tortious interference and breach of contract. The presidents of these three schools have a choice. They can pay their coaches more money or let them go and then proclaim that they are "powerless" to do anything about rising salaries. Or, they can exercise their legal rights and stand up for all the current and prospective student-athletes who committed to their school in reliance on the fact that their coach was obligated to be there for a period of years....the same student-athletes who, unlike their coach, are prohibited from transferring to another school.

University Presidents are Not "Powerless" to Control Coaches' Salaries

2009-11-10T13:23:00.001-05:00

USA Today's latest study released today on college coaches' compensation reveals that at least 25 college head football coaches are making $2 million or more this season, which is slightly more than double the number two years ago, and the average pay for a head coach in the 120-school Football Bowl Subdivision is up 28% in that time and up 46% in three years, to $1.36 million. Two weeks ago, the Knight Commission released its survey of bowl-subdivision university presidents in which 85% of the respondents said they felt football and basketball coaches' compensation "was excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability."

With the end of the football season approaching and, hence, the beginning of the coach solicitation season, the timing is ripe to announce my new law review article on this subject titled, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations. The paper will be published in the coming weeks in the Fordham Intellectual Property, Media and Entertainment Law Journal and can be downloaded off SSRN here. I take an extensive look at the economics surrounding college coaches' contracts and the reasons for rising coaches' salaries, and then use the economics to tackle the legal question that everyone avoids like the plague, which is what can schools do about it?

From a legal standpoint, it is astonishing that schools routinely solicit and steal coaches who are under contract with another school and that these solicited coaches are free to breach their contracts with limited or no repercussion. This is not representative of free market competition, but rather unfair competition. It would be like the Cowboys soliciting Tom Brady to breach his contract with the Patriots, and even worse, the Patriots then allowing Brady to breach his contract with them. The professional leagues have "no tampering" rules that prohibit this tortious interference and the Patriots would have no qualms whatsoever about using judicial means to prevent Brady (via a negative injunction) from playing for the Cowboys. Indeed, the NFL even has a no tampering policy with respect to its coaches.

The NCAA should consider adopting a "no tampering" policy (i.e. an anti-solicitation rule) similar to the NFL's no tampering policy which essentially prohibits teams from soliciting coaches under contract. In my paper I also explain why schools are entitled to equitable relief in the form of a negative injunction to prevent their coaches from jumping ship, and there is even precedent for it specifically in the context of enforcing college coaches' contracts.

Follow-up on Buster Olney - Hardy, Hermida, Teahan

2009-11-09T17:15:00.001-05:00

After posting last week about Buster Olney’s article and comments about arbitration-eligible players and free agents, the Twins traded Carlos Gomez to the Brewers for J.J. Hardy; the Red Sox traded Jose Alvarez and Hunter Jones to the Marlins for Jeremy Hermida; and the White Sox acquired Mark Teahen for Chris Getz and Josh Fields. Olney posted a column on his ESPN.com site (“Hermida’s Move Sure to be Replicated - 11-6-2009) supporting his earlier comments while noting that the Royals are looking to slash $10-$13 million from their payroll and peddling Teahen is a start. Teahen settled with the Royals last year at $3,575,000 after an exchange of figures ($3,050,000 - $3,850,000). Teahen was in a select group of five of the 46 players who exchanged numbers to negotiate a figure above the midpoint. As a Super Two in 2008, Teahen was able to negotiate a $2,337,500 deal that year. Apparently the Royals will contribute $1,000,000 towards Teahen’s 2010 salary. Fields and Getz have quite awhile before they become arbitration-eligible.

Hardy finished four years with the Brewers with a disappointing season. In 2008, Hardy exchanged numbers with Milwaukee ($2,400,000 - $3,050,00) before agreeing to a $2,650,000 deal. In 2009, he made $4,650,000. Hardy’s .229 average and drop in power numbers prompted to Brewers to make a move instead of going back into arbitration. With his demotion to AAA last year, the Brewers forced him to lose his ability to move to free agency after the upcoming season. How the Twins will handle negotiations will be interesting.

Olney’s main post involved Jeremy Hermida, who moved into the salary arbitration-eligible group before the 2009 season with the Marlins. He signed in January 2009 for $2,250,000. The Red Sox will accept his arbitration-eligible status without much complaint.

Hardy, Hermida, and Teahen are now set. Their new teams will advance through the negotiation and arbitration process, if necessary, to sign their new acquisitions.

Tulane Law School Baseball Arbitration Competition

2009-11-06T22:48:00.002-05:00

I am proud to announce that the Tulane Law School Sports Law Society will be hosting its third annual National Baseball Arbitration Competition from January 22-24, 2010. This is a really great and unique event that allows students to argue a baseball arbitration case involving real players and real statistics. We already have a number of great guest arbitrators lined up to judge the competition and will have students from schools across the country competing in the event. The official announcement from the Tulane Sports Law Society is attached below. Click here for the competition's website and more information. I look forward to seeing many of you down in New Orleans for the competition...

About the Competition
The Tulane Law School Sports Law Society is pleased to invite your school to compete in the 2010 Tulane Law School National Baseball Arbitration Competition. The Baseball Arbitration Competition is a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball. Like most law school moot court competitions, the Competition’s main goal is to provide participants with the opportunity to sharpen their oral and written advocacy skills, which are essential for a successful career as an attorney. The Competition, however, is unique in that it allows law students across the country with an interest in the growing body of sports law to sharpen these skills within the specialized context of Major League Baseball’s salary arbitration proceedings. This will be an exciting and educational legal exercise for all participants, as it will provide participants an opportunity to learn more about one of the legal processes used in the sports industry. In its two-year history the Competition has grown significantly, and we fully expect an increase in participation once again.

Schedule & Registration Materials
The Baseball Arbitration Competition is open to any ABA accredited law school. This year, the Competition will begin the evening of Friday, January 22nd, with a reception for competitors and participants. Competition rounds will begin the morning of Saturday, January 23rd, and continue through the afternoon of Sunday, January 24th.

The Changing Landscape of Salary Arbitration-Eligible Players and Free Agents in Baseball

2009-11-06T21:54:00.000-05:00

With the Yankees winning the World Series last night, the off-season officially began this morning. The clock starts ticking on the free agent filing period of 15 days after the end of the World Series. Buster Olney appeared on Mike and Mike on ESPN this morning. He started his segment with the same point that he made in an article on ESPN Insider on Sunday titled “Baseball's Next Great Economic Disparity.”

Let me quote from his posting:

“Baseball's financial structure appears to have reached a tipping point that can be defined simply. ‘The arbitration process is now outdated,’ said a highly ranked executive, ‘because the players can get more money in arbitration than they would through free agency.’ So now teams are about to adjust to this reality, and this is why multiple general managers expect that dozens of young players with three, four and five years of major league experience will be cut loose rather than offered arbitration in the next 41 days. Not a handful, but dozens.

During the past 48 hours, I went through the rosters with some executives and counted 93 solid non-tender candidates -- players whose current teams simply won't offer them contracts for 2010. If the final numbers come close to that figure, close to 300 veteran players will be looking for jobs in the winter, a staggering number that will inevitably depress the asking prices for free agents.”

Examples that Olney offered in his posted article were J.J. Hardy of the Milwaukee Brewers, Jeremy Hermida of the Florida Marlins, and Bobby Jenks of the Chicago White Sox. In both the article and this morning on Mike and Mike, Olney offered that the big market teams will be able to sign their top choices of both traditional free agents (six years of service) and non-tendered arbitration-eligible players. Small market teams might benefit from a depressed market overall for free agents.

I think that Buster Olney is right on top of this issue. The first two important dates to remember are December 1 and December 7. December 1 is the last day for teams to offer arbitration to their former players who became free agents. Monday, December 7, is the last day for a former free agent to accept arbitration. The non-tender date is December 12. After free agents file, teams have the right the offer arbitration. Often they will do this for projected Type A and Type B free agents to gain a draft choice if the player turns down the offer. Players turn down the offer to talk to all teams about a deal for the upcoming year. If they accept arbitration, they have basically agreed to a contractual relationship with their existing team. They can negotiate a deal or allow the arbitration panel to decide the appropriate amount. This year might be strategically different, however, because of the changing landscape. There will be a lot more free agents this year based on Olney’s prediction. If you offer arbitration to a Type A or Type B free agent, that player and his agent might just accept arbitration when they would have turned it down previously with different market conditions because an arbitration panel might award a figure that is higher than the deal that the player and agent could get on an open free agent market.

I will be monitoring all of this activity in the off-season, and I will post occasional musings.

Legal Fallout from Phoenix Coyotes - NHL Saga

2009-11-06T19:00:00.000-05:00

Over on the American Lawyer Daily, Zach Lowe has a good piece on the legal fallout of the Phoenix Coyotes likely sale to the NHL. He interviews me for his story, and I tie-in the American Needle case. Here's an excerpt:

The [NHL] apparently doesn't want the Coyotes for long, and they are already in talks to sell the team to an investment group represented by Cadwalader, Wickersham & Taft . . .
Monday's hearing at the federal bankruptcy court in Phoenix . . . was the first major gathering of the main legal players since the federal judge handling the case took the unusual step last month of tossing out both bids for the team--the NHL's $140 million bid and a much larger offer from Canadian business mogul Jim Balsillie, who wanted to move the team to Ontario. As we've written before, Judge Redfield T. Baum tossed the bids for very different reasons . . .

. . . But what really happened, according to four lawyers on the case, is that the NHL simply clarified the final bid it submitted more than a month ago. At the outset of the hearing, lawyers for the NHL and the creditors committee (represented by Paul Sala of Allen, Sala & Bayne) pointed out to Judge Baum that the NHL was not actually proposing to pay some unsecured creditors ahead of others. Rather, the lawyers told Baum, the league was offering to purchase the claims of those allegedly favored creditors--about $11.6 million, mostly owed to local vendors. The rest of the NHL's bid price--$128.4 million---would go to the bankrupt estate to be distributed to secured and unsecured creditors in the proper manner . . . .

Judge Baum is expected to approve the deal as soon as Monday. The next step would be for the NHL to sell the team . . .

One interesting note from McCann: Baum's earlier ruling allowing the NHL in as a bidder reinforces the notion that sports leagues have some momentum in getting around antitrust laws. Earlier this year, the U.S. Court of Appeals for the Seventh Circuit ruled that the National Football League could act as a so-called single entity--exempt from antitrust laws--in signing apparel licensing agreements. (The U.S. Supreme Court had previously reserved single entity status for parents and their wholly owned subsidiaries, McCann says.) One apparel maker (American Needle Co.) has objected, claiming that the 32 NFL teams are separate businesses, and that apparel makers should be able to negotiate separately with all of them. The appeals court rejected that argument, holding that the NFL could be considered a single entity for the purpose of licensing agreements even though the teams are very clearly separate businesses, McCann says. The case is now headed to the U.S. Supreme Court.

The NHL cited the Seventh Circuit's ruling in the Coyotes case, in effect saying the league could bid for and own an individual team. That suggests how much importance leagues are placing on the outcome of the American Needle case, McCann says.

Referees Injured by Tortious or Criminal Behavior of Players

2009-11-06T08:31:00.000-05:00

Victoria E. Freile and Claudia Vargas of the Rochester Democrat and Chronicle have an interesting piece on a sports law topic that we often don't discuss: referees injured by the tortious or criminal behavior of players. They focus on a recent incident in an adult amateur football game played in Rochester which generated a felony charge for a player. Here's an excerpt:

On the day a football player was in court facing felony charges in connection with an attack on a referee, football officials said the adult amateur league will have a tough time finding referees to officiate games next season.

Leon R. Woods, 23, of Rochester was charged with first-degree assault, a felony, in connection with the attack on Pete McCabe, 54, of Lakeville, Livingston County. Woods, a running back for the Western New York Cougars, a team from Rochester, is accused of intentionally swinging his helmet and striking McCabe in the face after a game at Edgerton Park on Saturday.

McCabe, who was one of several referees officiating the end-of-season playoff game between Rochester and Utica, suffered severe lacerations, a broken jaw and nose and internal injuries. . . .

Referee Robert Lockhart, 54, told police that he saw a player running down the sideline, holding his helmet. "He then ran up to (McCabe) and swung his helmet like a weapon," Lockhart said. "It was like a roundhouse punch. He hit (McCabe) right in his face." McCabe immediately went limp and fell to the ground, he said. Blood was gushing from his face, he said.

To read the rest, click here.

Peter Carfagna's New Sports Law Books

2009-11-05T07:00:00.000-05:00

There are a number of terrific sports law case books available, and there is a new one that joins them: Peter Carfagna's "Sports and the Law: Examining the Legal Evolution of American's Three 'Major Leagues" (West, 2009).

Peter's book is devoted to the sports law of Major League Baseball, the National Football League, and the National Basketball Association. I just finished reading a copy of it, and it's excellent. I particularly like its clarity and brevity (167 pages, not including appendixes; appendixes include the MLB Uniform Player Contract, the NFL Standard Player Contract, and the NBA Uniform Player Contract) -- it addresses all of the key decisions and also provides useful practical materials, such as an actual naming rights agreement between the Red Sox and Anheuser-Busch (pages 125 to 135).

Peter has also just published Representing the Professional Athlete (West, 2009), another excellent work. This one is about hands-on training for acting as a player agent.

Peter teaches sports law at Harvard Law School and has a long and storied career in the industry, including serving as chief legal officer/general counsel of IMG. It's neat to see sports law continue to grow in scholarship and esteem, and I'm looking forward to more sports law books on the way.

More on Star Caps

2009-11-04T14:30:00.005-05:00

As a follow up to Nathaniel’s post on the Star Caps hearing, the written testimony of all of the witnesses and the video of the hearing can be found here (note that the testimony from the witnesses does not begin until about the 1:26:48 mark).

Here is the full witness list: Roger Goodell, Commissioner, National Football League; DeMaurice Smith, Executive Director, National Football League Players Association; Rob Manfred, Executive Vice President, Labor and Human Resources, Office of the Commissioner of Baseball, Major League Baseball; Michael S. Weiner, General Counsel, Major League Baseball Players Association; Travis Tygart, Chief Executive Officer, United States Anti-Doping Agency; Jeffrey Standen, Professor of Law, Willamette University College of Law; Gabriel Feldman, Associate Professor of Law and Director, Sports Law Program, Tulane University Law School.

Also, although I may be a bit biased, the Minnesota Post did a good job of recapping the hearing.

Here’s an excerpt:

During additional testimony before the committee, Gabriel A. Feldman, associate professor of law at Tulane University and the director for the Tulane sports law program, laid out a more detailed argument against congressional action.

“It is important to emphasize that the Eighth Circuit did not hold that the NFL [Performance Enhancing Drug] Policy violates Minnesota law,” he said in prepared testimony. “Instead, the court only held that the Williamses may challenge their suspensions in Minnesota state court under state law.”

Thus, Feldman concluded that it was only a “potential” problem. And even if the court did ultimately rule in favor of the Williamses, it was still a “narrow” problem because only three states, including Minnesota, currently have drug-testing laws that might conflict with the NFL policy.

“This narrow potential problem warrants a very narrow solution, and many steps should be taken before Congress intervenes,” said Feldman. “The most appropriate — and simple — solution is for the NFL to litigate the case in state court and convince the court that the Minnesota Laws were not intended to apply to the NFL [Performance Enhancing Drug] Policy and that suspensions do not violate the Minnesota Laws. If that suit is unsuccessful, the NFL should seek an exemption from the state Legislature that makes it clear that the Minnesota Laws do not apply … If that fails, the NFL and the players association should try to bargain around the Minnesota Laws. If that fails, then, only as a last resort, Congress should consider passing a narrow federal law that will protect” the NFL policy.

Goodell retorted that if a national law was not enacted, then other states could ultimately change their laws to conflict with NFL policy. Feldman, however, stated that there was little chance of that happening.

In the end, subcommittee chairman Bobby Rush of Illinois seemed to side with Feldman.

Rush said that he would be keeping a “wary eye” on the Williamses’ case, but warned that “you can’t tell what members of Congress might ultimately do once you open up Pandora’s Box.”

“I would just ask that you all try to work this thing out,” Rush told the gathered panel.

Finally, Mark Maske of the Washington Post wrote a piece discussing the study of state employee drug testing laws that I conducted for the hearing. The study concluded that only 3 states (Minnesota, Maryland, and North Carolina) currently have workplace drug testing laws that might conflict with the NFL’s performance enhancing drug testing policy. Many thanks to Andrew Miragliotta, a sports law student here at Tulane Law School, for helping with the study.

Congress Considers the StarCaps Case

2009-11-03T16:55:00.000-05:00

A Congressional hearing was held today regarding whether to amend the Labor Management Relations Act in order to protect professional sports leagues' performance enhancing drug policies from being attacked under state law. The hearing was held in response to the 8th Circuit's recent decision in Williams v. NFL (i.e., the "StarCaps" case), and featured testimony from NFL commissioner Roger Goodell, NFLPA executive director DeMaurice Smith, Rob Manfred, Major League Baseball's executive vice president of labor relations, and Michael Weiner, the MLBPA's general counsel. Sports Law Blog's Gabe Feldman is quoted in the New York Times' report on the hearing. Meanwhile, Paul Secunda, a professor at the Marquette University Law School, has posted some thoughts regarding the hearing and the Williams case over at PrawfsBlawg.

For more on the Williams case, see Gabe's prior posts on the litigation, as well as the thoughts of Willamette law professor Jeffrey Standen at the Sports Law Professor Blog.

U.S. Supreme Court to hear American Needle v. NFL on January 13, 2010

2009-11-02T20:50:00.004-05:00

The U.S. Supreme Court released its January calendar today, and announced that American Needle v. NFL will be heard on Wednesday, January 13, 2010 (h/t Ryan Rodenberg of Legal Aspects of Sports Blog). For past Sports Law Blog coverage on the case, click here. For links to various amicus briefs and other court materials, click here.

For related scholarship on this case, see:

Marc Edelman, Why the 'Single Entity' Defense Can Never Apply to NFL Clubs: A Primer on Property Rights Theory in Professional Sports, 18 Fordham Intellectual Property, Media & Entertainment Law Journal (2008)

Gabriel Feldman, The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense, 2009 Wisconsin Law Review __ (forthcoming, 2009)

Nathaniel Grow, There’s No ‘I’ in ‘League’: Professional Sports Leagues and the Single Entity Defense, 105 Michigan Law Review 183 (2006)

Michael McCann, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 Yale Law Journal __ (forthcoming, 2009)

Do Pro Athletes Commit Crimes at Unusually High Rates?

2009-10-28T15:35:00.002-04:00

Lawrence Delevingne of The Business Insider explores athletes and crime in a recent piece. He interviews Geoff, Duke Law Prof Lisa Kern Griffin, and me. Here's an excerpt:

But pro athletes aren't actually more likely to commit crimes that the average citizen. It just seems that way because of all the attention their cases get.

"I don't think there's any empirical evidence showing that professional athletes are more likely to commit crimes than the typical person," says Michael McCann, a sports law expert at Vermont Law School.

Most players are "just regular citizens that follow the law and are as good or as bad as the rest of us," McCann says. "We're definitely skewed...because a handful of players get in trouble repeatedly."

Geoffrey Rapp, a law professor at University of Toledo, says he hasn't seen evidence to show there's more criminality among athletes, but the cases that arise make sense. "We're talking about people who their whole lives have been praised...for being violent."

"It's possible that athletes become a bit de-sensitized to the consequences of their actions," says Rapp. Plus, when people are wealthy, they "tend to think they can get away with murder."

But it's wrong to assume pros get off easy.

Lisa Kern Griffin, a professor at Duke Law, says that while sports stars may be better represented because of their wealth, "I don't think that athletes are treated differently in the courtroom." Plus, all the attention can mean they don't get off with small infractions that others may not be prosecuted for, says Griffin.

For the rest, click here.

Buzz Bissinger Op-Ed in today's New York Times on NBA's Eligiblity Restriction: From Supporter to Opponent

2009-10-27T09:14:00.004-04:00

Pulitzer prize winner H.G. "Buzz" Bissinger (author of the famed Friday Night Lights and LeBron James' co-author of Shooting Stars) pens an outstanding op-ed in today's New York Times on the NBA's eligibility rule, which Bissinger admits he thought was a good idea back in 2005 but now believes was a terrible idea. I'm honored that Bissinger would cite a couple of my studies in his piece (which is on page A25 of today's paper). Here are a couple of excerpts:

* * *

So I was pleased that, as part of a new collective bargaining agreement with the players’ union, rules were established requiring American players to be at least a year removed from high school and a minimum of 19 to be eligible for the N.B.A. draft. This meant that young superstars would generally go to college, at least for one year. Beyond simply advancing their skills, I thought, it might turn them on to the value of an education, maybe enough to stay in school longer.

Now, with another N.B.A. regular season beginning today, the issue still rages, with ramifications that go directly to the heart of whether any professional sports league has actual concern for its athletes beyond a smokescreen of clever spin. And in looking back at Stern’s decision, I am now convinced that we got punked.

. . .

Stern raised the age in large part because N.B.A. owners and general managers resented the amount of time it took to train players straight out of high school. He did it because owners did not like the possibility of players becoming free agents, able to join any other team in the league, in their early 20s. My guess is that he also did it to appease the National Collegiate Athletic Association; you could hear the whining that the N.B.A.’s version of cradle-robbing was denying the college game great players who could sell out arenas.

There are disaster stories of players entering the draft from high school and failing spectacularly. But as tragic as the stories are, they are an exception. A study by Michael McCann, a professor at Vermont Law School who is an expert on sports and legal issues, pointed out that of the 21 high school players who declared for the draft from 1975 to 2001, four became superstars — Kevin Garnett, Kobe Bryant, Jermaine O’Neal and Tracy McGrady — and only four never made it to the N.B.A. This trend held with the high school draft classes of 2002 through 2005, the year the ban was put in place: of the 26 players drafted, 20 were still playing through last season and three have become superstars: Amar’e Stoudemire, Dwight Howard and James.

The frequent argument that players drafted straight from high school are more prone to quickly get into trouble because of their age has also proved wrong. According to a study by McCann in 2005 of the most recent 84 arrests of pro players, more than half the arrestees had spent four years on a university campus but only 4.8 percent never went to college (even though players without any college experience made up 8.3 percent of the league population).

* * *

There's much more in the op-ed, a definite read if you're interested in eligibility rules for professional sports, particularly the NBA. And like many of you, I'm psyched about the NBA season starting tonight!

Update: ESPN's Henry Abbott reacts to Bissinger's story and also refers to some good ideas offered by Dean Smith. Sports Illustrated's Seth Davis also has a great piece reacting to Bissinger, and the same is true of Eamonn Brennan of Yahoo! Sports.

Sports Law Blog's Joe Rosen Signs Red Sox Reliever Hideki Okajima as Client

2009-10-25T10:06:00.005-04:00

Congratulations to agent/attorney Joe Rosen, who has guest blogged here on a number of occasions (including in 2005 when he asked "Is NASCAR a Sport?"), on signing as a client Boston Red Sox reliever Hideki Okajima. This news has been reported in the Boston Globe and Boston Herald, among other media outlets.

Joe is the President of the Baseball and Media Divisions of the Boston-based Orpheus Sports & Entertainment, which he co-founded with fellow agent/attorney Chris Brown. Both graduated from Boston College Law School in 1998 and both have taught sports and entertainment law courses at BC Law since. I have worked with both of them on a variety projects, including co-authoring a law review article on age eligibility rules in the NBA and NFL, and I'm thrilled to see the growth of their firm, which represents a number of prominent players and top prospects, as well as prominent media personalities, including WEEI's Jon Meterparel, who is the play-by-play voice of Boston College football games.

Back to the Okajima signing, the Boston Herald has details on some of the motivations for Okajima to move from one agent to Joe:

Red Sox left-handed reliever Hideki Okajima hired a new agent near the end of the season as a result of a rather large misunderstanding he had with his previous one, according to his new agent, Boston-based Joe Rosen.

“Hideki believed he was going to be a free agent at the end of his contract this year,” Rosen said. “There was some reason for him to believe it, but he was not misled by the agent (Peter Greenberg).”

Okajima’s disappointment over the misunderstanding led to the agent switch, according to Rosen, who said that Okajima has moved beyond the issue. Okajima is arbitration eligible but due to his contract language, must be offered that contract by Nov. 10, Rosen said.

According to his new agent, Okajima is “very” happy to be a Red Sox and that “he likes it here.” Okajima plans to leave for Japan next month with a stop in Hawaii before beginning his normal offseason training program later in the winter in Australia. Rosen said he was unsure if Okajima planned on running in the Honolulu Marathon as he did last December. His time was 6:08:35 - which is a pace of 14:03 per mile - which means Okajima did more walking than running. .

Congrats again to Joe.

Media self-protection?

2009-10-24T22:11:00.008-04:00

University of Montana football coach Bobby Hauck is getting raked over the coals because he (and the members of the team) are refusing to speak with reporters from The Kamin, the student newspaper, after the paper published a story (the facts of which have not been contested or criticized) about an on-campus assault allegedly involving two players. Hauck has publicly humiliated student reporters when they have tried to ask football-related questions at his weekly press conference ("Oh, now you want something from me?").

Hauck is certainly not the first college coach to go off on a 20-year-old student reporter in a way he most-assuredly never would do with a member of the professional (especially national) press, who he needs to publicize his team. (See, famously, Oklahoma State coach Mike Gundy's "I'm a man, I'm 40" rant).

Here's what I find interesting and somewhat disappointing. No one from the professional media (the Missoula paper or local TV outlets) seems to have come to The Kamin's defense, namely by refusing to cover the team unless Hauck (if not the players) stopped boycotting student reporters. Contrast this with the stance of mainstream news outlets such as The Times as to the White House feud with Fox News; several have talked of not attending WH press events if Fox is excluded. For all the criticism of Hauck, this never seems to have come up.

Sports Law Discussion today at Harvard Law School

2009-10-22T11:10:00.008-04:00

Sorry for the late notice, but if you're in the Cambridge Massachusetts area today and are free between 3:15 and 4:30, Boston Celtics Assistant Executive Director of Basketball Operations & Associate Counsel Mike Zarren and I will be co-lecturing on age eligibility restrictions in the NBA and NFL, and also on American Needle v. NFL, at Harvard Law School. We are guest lecturing Professor Peter Carfagna's sports law class. If you are interested in attending as a guest, please contact Ashwin Krishnan, Professor Carfagna's teaching assistant and the Editor-in-Chief of the Harvard Journal of Sports and Entertainment Law.

Sports Implications of the Genetic Information Nondiscrimination Act (GINA)

2009-10-21T14:06:00.004-04:00

Shaun Assel of ESPN Magazine has an interesting article on the sports implications of the Genetic Information Nondiscrimination Act (GINA), which goes into effect Nov. 21, and which explicitly bars employers from using genetic results in hiring and workplace decisions. The piece, which discusses a topic that might make for a great student law review/journal note, is available on ESPN Insider, so I can only post a small portion it. Here's a short excerpt, which features an interview with Sports Law Blog's Alan Milstein, a national expert on bioethics and the law and who represented Eddy Curry when he played for the Chicago Bulls and when the Bulls demanded that Curry take a DNA test:

* * *

The new law may have the most relevance to current employees, says Alan Milstein, a New Jersey lawyer with experience in both sports and biotechnology.

Milstein represented NBA forward Eddy Curry in a celebrated 2005 case in which the Chicago Bulls refused to extend Curry's contract unless he took a genetic test. (The team was trying to determine if he had a rare mutation that increased his chance of suffering a fatal heart attack while exerting himself.) Curry signed with the Knicks without ever having to surrender a sample. Millstein says that the new act is designed to prevent a similar situation from arising again.

"It goes hand-in-hand with all the laws that say your medical history is your own and no one can have access to it," he says.

* * *

For the rest of the piece, click here. For a terrific historical overview of these issues, check out Alan Milstein's Out of the Park: A History of Sports and the Human Condition. For other Sports Law Blog posts on DNA testing, click here. For a law review article that I wrote on DNA testing and the Eddy Curry situation, see The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy 8 University of Pennsylvania Journal of Labor and Employment Law 819 (2006).

New Sports Law Scholarship

2009-10-19T09:15:00.001-04:00

Recently published scholarship includes:

Phyllis Coleman, Note to athletes, NFL, and NBA: dog fighting is a crime, not a sport, 3 JOURNAL OF ANIMAL LAW AND ETHICS 85 (2009)

Helmut M. Dietl et al., Governance of professional sports leagues--cooperatives versus contracts, 29 INTERNATIONAL REVIEW OF LAW AND ECONOMICS 127 (2009)

Marc Edelman and Elizabeth Masterson, Could the new Women’s Professional Soccer League survive in America? How adopting a traditional legal structure may save more than just a game, 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 283 (2009)

David Fintz, Note, The women’s right to participate in the game of baseball, 15 CARDOZO JOURNAL OF LAW & GENDER 641 (2009)

Geoffrey T. Hancock, Note, Upstaging U.S. gaming law: the potential fantasy sports quagmire and the reality of U.S. gaming law, 31 THOMAS JEFFERSON LAW REVIEW 317 (2009)

James Blake Hike, Note, An athlete’s right to privacy regarding sport-related injuries: HIPPA and the creation of the mysterious injury, 6 INDIANA HEALTH LAW REVIEW 47 (2009)

A. Kaburakis et al., NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the video-game industry, 27 ENTERTAINMENT & SPORTS LAWYER 1 (2009)

Lewis Kurlantzick, The tampering prohibition and agreements between American and foreign sports leagues, 32 COLUMBIA JOURNAL OF LAW & ARTS 271 (2009)

Brett Edwin LoVellette, Comment, “Mortal [K]ombat in cleats”: an examination of the effectiveness of the National Football League’s disability plan and its impact on retired players, 36 PEPPERDINE LAW REVIEW 1101 (2009)

Panel I: Constructing and Operating Sports and Entertainment Facilities )(Jason Hadley, panel moderator; Mark Stefanacci, Andrew Lee, Philip Weinberg and Michael Rowe, panelists), 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 382 (2009)

Panel II: Health of Professional Athletes and Obligations to Perform (John Kettle, moderator; Roger Abrams, Michael Weiner, Andrew Bondarowicz and Leonard Marshall, panelists), 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 425 (2009)

Panel III: Entertainers’ and Athletes’ Conduct Unrelated to Their Employment (Scott Shagin, moderator; Fernando M. Pinguelo, Richard T. Karcher, Marc Edelman and Anthony Caruso, panelists), 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 479 (2009)

Fernando M. Pinguelo & Timothy D. Cedrone, Morals? Who cares about morals? An examination of morals clauses in talent contracts and what talent needs to know!, 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 347 (2009)

Michael E. Plantinga, An amended doctrine that will silence the NFL: the demise of the existing fair use doctrine as it relates to uses of digital sports entertainment media, 14 JOURNAL OF TECHNOLOGY LAW & POLICY 51 (2009)

Andre L. Smith, Do NFL “signing bonuses” carry a substantial risk of forfeiture within the meaning of Section 83 of the Internal Revenue Code?, 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2009)

Jeffrey Vanderbeek, Key Note Address, 19 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 466 (2009)

Chris Bosh wins rights to domain

2009-10-15T11:31:00.002-04:00

Alert reader Devin Black sends along this story about Chris Bosh of the Toronto Raptors, who successfully sued to recover use of the domain chrisbosh.com from a cyber-squatter named Luis Zavala, who also held domain names of more than 800 other celebrities.

Interestingly, rather than statutory damages (Bosh was entitled to $ 12,000, which he doubted Zavala could pay), Bosh asked the court to make Zavala relinquish control of the other 800 celebrity names he had been using (I presume Bosh will simply relinquish those names and not try to sell them off). That's an interesting remedy. But I wonder if the court actually could grant this. After all, Bosh is not injured because Zavala owned britneyspears.com.

Baseball's Antitrust Exemption Highlighted in a New TV Campaign

2009-10-14T12:30:00.004-04:00

TheHill.com reports that baseball's historic antitrust exemption has been highlighted as part of a new advertising campaign criticizing the health insurance industry. No doubt hoping to capitalize on the popularity of the baseball playoffs, the group Americans United for Change has launched the TV commercial below, noting that the baseball and health insurance industries are the only two enjoying an exemption from federal antitrust law. In the process, the ad depicts the effect of the baseball antitrust exemption as being relatively benign, a characterization I suspect many here would take issue with.

Gillispie v. U. of Kentucky Lawsuit Settled

2009-10-14T09:00:00.000-04:00

ESPN.com is reporting that former University of Kentucky basketball coach Billy Gillispie has settled his lawsuit against the University for $2.9 million. As I have previously discussed, Gillispie sued the University for breach of contract, among other claims, following his dismissal in March of this year. The settlement agreement also resolves the countersuit that the University later filed against Gillispie in Kentucky state court.