Sports Law Blog
All things legal relating
to the sports world...
Monday, September 12, 2016
NJICLE Kickoff Classic
I am honored to be speaking at the New Jersey Institute for Continuing Legal Education's upcoming "Kickoff Classic" on September 24. The classic will focus on sports law controversies and CLE credit will be available. This link has the key details and information on signing up, and I hope you do.
Specific topics in the classic include:
• Public relations disasters – what is an attorney’s role when the players and coaches
commit “fouls” off of the field
• Representing sports agents – legal issues involved in courting and signing with the NFL
• NCAA compliance – how to keep college players on the amateur side of the dividing line
• Betting on games - the current status of sports betting in New Jersey
• Concussions – the latest law on injuries and liability
• Gaming the system - O’Bannon vs. NCAA and should student athletes be paid for the
use of their names and likenesses in video games
Here's some more info:
Saturday, September 03, 2016
Third-Party Funding for Future PASPA Challenges?
In an article penned for Deadspin earlier this week, I laid out an accelerated timeline for legalizing sports betting nationally. The most accelerated path, as I explained in the piece, would be through future court challenges lodged by other states. In my opinion, the quickest path to legalized sports betting would occur through a combination of lobbying and litigating, with an emphasis on the latter. The more litigation pressure, especially if one state succeeds, the quicker the four major professional sports leagues would lobby Congress to repeal or amend the Professional and Amateur Sports Protection Act ("PASPA"), the federal law that prohibits states (like New Jersey) from authorizing or licensing sports betting.
But one of the major obstacles facing potential state challengers is one of "cost," that is, how can states--constrained by budgetary considerations--afford to finance a potentially multi-year, multi-million dollar litigation battle. After all, the final tab for New Jersey, as reported earlier today, was $5.1 million.
It turns out, however, that New Jersey taxpayers did not end up footing the bill--at least not directly. As exclusively reported by John Ensslin of the Bergen Record, the legal fees associated with the New Jersey sports betting case were paid by the state's gaming industry. As Ensslen's article explains:
Taxpayer funds are not being used to pay for the sports betting litigation, according to Leland Moore, a spokesman for the U.S, Attorney's Office. Instead, the legal effort is being funded through fees paid by the gaming industry to regulatory agencies, Moore said. Three-quarters of the costs are paid by fees paid to the Casino Control Fund of the [New Jersey] Division of Gaming Enforcement. An additional 25 percent comes from fees paid to the state Racing Commission, he said.While taxpayers are "indirectly" footing the bill through a diminution in regulatory services (e.g., less money is available for other gaming regulatory functions), this financing model could serve as an example for other states contemplating a similar legal challenge to PASPA. For those states hampered by budgetary deficits or shortfalls, the New Jersey example illustrates that there are alternative approaches to funding.
The states are not alone in desiring sports betting: the largest stakeholder in this arena is the U.S. gaming industry, which across 40 states, generates nearly $73.5 billion in annual income. Certainly, those stakeholders would have a built-in economic incentive (and strong desire) to assist states in their quest to legalize sports betting by partially or wholly funding future litigation efforts. After all, legal sports betting would be an economic juggernaut to the gaming industry. It is estimated that legal sports betting in New Jersey would have generated over $1 billion in annual gross gaming revenues for New Jersey's racetracks and casinos. For a state like Mississippi, with more than three times the number of commercial casinos and the allure of the Gulf Coast, the potential economic reward is even greater. The gaming industry, if called upon, would likely embrace the opportunity to participate in this fashion, given the significant economic boost that legalized sports betting would provide to gaming venues. Call it a true "public-private partnership," if you will.
Tuesday, August 30, 2016
I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.
As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)
Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.
Friday, August 26, 2016
The Business of Amateurs: Suffering Student-Athletes and a Thriving NCAA
The NCAA frequently lauds amateurism and the ideal of the “student athlete.” But in contrast to this idyllic conception, college football is big business. And it is built on the backs of gladiators, football (and basketball) players who are often forgotten, disposable cogs in big-time college sports.
Such is the story Bob DeMars masterfully weaves in The Business of Amateurs. The former USC football player takes viewers on a tour of the college football machine—its gold-plated, garish facilities and its coaches with million-dollar contracts and reimbursed country-club fees.
On the other side of this excess, however, is the players’ penury. More than 80% of student-athletes live below the federal poverty line. While the fair market value of a Division I football scholarship is $137,000 and a basketball scholarship is $290,000, the average scholarship a student receives is $23,000. The players who never play after college (or have short professional careers) have their highest value when they are in college. But beyond educational expenses, the NCAA prohibits payment. In fact, the ongoing O’Bannon case against the NCAA famously was triggered by the UCLA basketball star’s seeing a near-exact replica of himself in a video game, not receiving a penny from the resulting significant revenues.
If not money, what does the student get in return for filling the school’s coffers? Often, not an education. DeMars highlights UNC, with its fake classes, spoon-fed answers, and predetermined majors, which are selected not because of a student’s interest but because they fit the athletic schedule. Although NCAA rules prohibit student-athletes from spending more than 20 hours per week on their sport, they often spend double that. Yes, there are successful student-athletes. But as these individuals attest in the movie, they are the exception, not the rule.
Surely, the student-athlete at least gets the certainty of knowing they have a scholarship for four years and their health-care costs covered, right? Well, not really. DeMars recounts the players who have had scholarships revoked for being injured, as well as those who are ungraciously denied health-care coverage for injuries suffered during practice or games. Yes, even those practices in which (despite serious injuries) they are forced to participate. Perhaps in response to recent developments like the O’Bannon lawsuit and Northwestern unionization attempt, these practices are changing. But it should not be controversial to apply them to all student-athletes.
The greatest harms appear in the former student-athletes in their 40s, and even sometimes 20s and 30s: the ones addicted to pain medicine; those not able to hold a steady job; the alcoholics; those suffering from dementia; and those who are depressed and even take their own lives. DeMars talks with leading doctors who explain the science behind the degenerative “CTE” disease from repeated blows to the head, ALS (Lou Gehrig’s disease), concussions, and the 900-1500 “subconcussions” football players suffer each season.
As a result of these findings, the NFL has limited hits in practice. But the NCAA, ironically enough founded as an organization to promote safety, has not, “den[ying] that it has a legal duty to protect student-athletes.”
In the past few years, stories about student-athletes as impoverished cogs in the NCAA’s billion-dollar big business machine have spread. DeMars adds to these stories. And he offers a particularly sobering perspective by focusing on the former players whose lives have been upended—if not ended—by injuries. It doesn’t seem right for these gladiators to become a shell of themselves while the NCAA is exploiting their successors for billions. Reform is desperately needed. For everyone who benefits from the gladiators in the ring every week, that is the least we can do.
Thursday, August 25, 2016
The Future of College Athlete Players Unions
he Future of College Athlete Players Unions: Lessons Learned from Northwestern University and Potential Next Steps in the College Athletes Rights Movement." The article will be published in Volume 38 of Cardozo Law Review.
Here is the abstract:
This article explores the future prospects for organizing Football Bowl Series football and Division I men’s basketball players after the National Labor Relations Board’s decision in Northwestern University. Part I of this article provides a brief overview of U.S. labor law and introduces the unique labor dynamics of big-time college sports. Part II explores labor organizers’ recent attempts to unionize the grant-in-aid football players on the Northwestern University college football team. Part III describes potential strategies for unionizing alternative bargaining units of elite college athletes. Finally, Part IV analyzes the interplay between unionizing college athletes and challenging the NCAA’s restraints on college athlete pay under Section 1 of the Sherman Act.And here is a link to the full article.
Wednesday, August 17, 2016
More sports rules and perverse incentives
Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.
The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.
This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports.
This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.
Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.
Tuesday, August 16, 2016
Further Thoughts Midway Through RIO 2016
including me, and dire predictions, the Rio Olympics thus far seem to be rather successful. Michael Phelps and Usain Bolt surely will be remembered 84 years from now when Sports Illustrated opines as to who was the greatest athlete of the 21st Century. (Assuming SI still exists in one form or another.) And Simone Biles demonstrated how far women athletes have come in the last quarter century in demonstrating not just grace but strength and power on a par with any of her male counterparts.
Still, there have been a few low points. First, was the action of the Olympic Committee punishing non-offending Russian Athletes for the sins of their predecessors. Even worse was the despicable behavior of certain athletes from Arab countries manifesting everything the Olympics is not by refusing to either shake the hands of or even compete against Israeli athletes.
I cannot remember any prior games where coaches and athletes complained of being mugged, or of contracting illness from the polluted water venues, or of having to wear protection six weeks after the games to ensure they don’t pass on the Zika virus to their mates when they return home.
Speaking of which, pole vaulter Hiroki Ogita is certain to replace Eddie “the Eagle” Edwards as the athlete achieving the most fame for Olympic failure. In the first round of the competition, on his attempt to clear the bar at 17 feet, 3 inches, it seems Mr. Ogita brushed the bar off its moorings in a rather impressive fashion:
Let’s avoid the junior high humor and not even mention this is why Milton Berle gave up pole vaulting for a television career.
Thursday, August 11, 2016
New York May Be The Perfect PASPA Challenger
I met New York Assemblyman J. Gary Pretlow at a gaming industry conference in Boston last week. Mr. Pretlow, the chair of the Assembly's Racing and Wagering Committee, moderated a panel at the National Conference of Legislators from Gaming States (NCLGS) Summer Conference devoted to two subjects near and dear to my heart -- sports betting and daily fantasy sports. Over the course of a long weekend, Assemblyman Pretlow and I indulged in a shared passion--cigars (he brought his own bag of hand-rolled cigars to the conference!). He invited me to join him for cigars on his hotel room balcony, and, inevitably, the conversation turned (or, rather, I steered it) to sports betting. I explained why I believed that New York State--which was on the verge of legalizing daily fantasy sports--would be the perfect state to challenge the federal ban on state-sponsored sports betting. Assemblyman Pretlow was listening intently to my pitch, and I could tell he was interested in the topic. Fast forward eleven days later, and Assemblyman Pretlow, who was in attendance at another gaming conference at which we both spoke (the Saratoga Institute on Equine, Racing and Gaming Law) told GambingCompliance reporter Sara Friedman that he would be "looking at challenging the feds" on the Professional and Amateur Sports Protection Act, the 1992 federal law which prohibits states from legalizing sports betting. He told Sara not to be "surprised if you see a state like New York put through legislation on this very shortly," but that he had "more homework to do." Hey, homework is my specialty!
In many ways, New York is the perfect state to challenge PASPA. As Ms. Friedman notes, New York lawmakers have already agreed to legalize sports pools at the state's racinos and casinos if PASPA is overturned by a court or a new federal law is enacted by Congress. New York's status as one of nine states to have legalized daily fantasy sports may provide it with a litigation advantage that New Jersey lacked. Ironically, the recent state measures to legalize daily fantasy sports may be the catalyst for legalizing sports betting, but not in the way that many envision. One unintended consequence of the new DFS laws is that it may have provided states that have enacted such laws with a "winning argument" in future PASPA cases. Since PASPA in my view (see here and here) also encompasses state-authorized wagering schemes on "athlete performance" (not just game-level outcomes), the recent state laws authorizing daily fantasy sports create a true PASPA quandary for the professional sports leagues and the U.S. Department of Justice (the likely plaintiffs in any lawsuit to enjoin a state from legalizing sports betting). A colorable argument can be made that the leagues and the DOJ are "selectively enforcing" PASPA by opposing state efforts to legalize traditional sports betting, but "looking the other way" on state DFS laws, which in the leagues' case, could be seen as entirely self-serving (and self-interested) given their financial partnerships with (and equity stakes in) FanDuel and DraftKings. They can't have it both ways. Either PASPA applies to both or to neither.
At a minimum, this duality could serve to undermine the leagues' argument in future cases that they would be "irreparably harmed" by expanded legal sports betting when they have neither suffered nor asserted any such harm from other supposed violations of PASPA in the DFS context. The ideal plaintiffs to advance such an argument would be those states that have already legalized daily fantasy sports. These states (which include New York, Mississippi, Indiana, Virginia, Colorado, Missouri, Massachusetts and Tennessee) are perfectly situated to advance a selective enforcement, waiver, or other equitable defense against the four major professional sports leagues, the NCAA and the DOJ. (By contrast, New Jersey, which has no DFS law on the books, was limited to an "unclean hands" defense based on the sports leagues' financial investment in DFS, and that argument was rejected by the Third Circuit since it did not involve the type of "reprehensible conduct" necessary for an unclean hands argument to succeed). These additional equitable arguments, if successfully advanced, could prevent the leagues from securing an injunction against states in future cases, thus serving as a possible "tipping point" for expanded legal sports betting. While such an argument is not guaranteed to succeed, it provides another possible tool in the legal arsenal for states to utilize in toppling PASPA. New York, by virtue of its status as a DFS state, could be well-positioned to advance this argument.
Friday, July 22, 2016
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Unfortunately, I fear a different explanation. The recent deaths of police officers has made them untouchable in the realm of public debate. You no longer can criticize or protest police officers, as by memorializing the victims of police-involved shootings (even as part of a general statement against all violence by memorializing everyone). The Orlando memorials no longer work as analogue, because the shooter there was a terrorist, not to mention an "other," so honoring those victims does not implicate police. We may be entering a time in which athletes can speak through the game, but only to express certain messages or certain positions on an issue.
As I said in the prior post, this is playing out on a smaller stage. The question is whether the same limitations are imposed on NBA or NFL players.
Update (Saturday afternoon): In my prior post, I argued that the key question is the extent to which athletes should be able to use the game, on the field/court, as a platform for their expression. The answer from the WNBA, according to this ESPN story, is that the players should keep their activism off the court. The league and the union have been trying to negotiate some arrangements, such as allowing players to wear what they want during early warmups (until, say ten minutes before the game), then change into official shirts for the national anthem; so far, they have been unable to reach an agreement.
The story includes comments from USA Coach Geno Auriemma, who seems to expect some players to attempt to speak out during the Olympics, which would become a matter for Olympic and basketball authorities. I hope we have come far enough in 48 years that the USOC would not respond as it did to Tommie Smith and John Carlos, by kicking them out of the Olympic Village.
I am more surprised by the following from Auriemma:
"I respect Tina (Charles) and the players in the WNBA for their concern and their voices and the passion that they have and for their beliefs. I really do," he said, citing the former UConn player and Liberty star for wearing her warmup shirt inside-out before Thursday's game. "I'm really proud of some of my former players and the way they've stepped forward and spoken their conscience and express their feelings."This is a change in tone from Auriemma. In 2003, a small-college basketball player named Toni Smith began protesting the Iraq War by turning her back on the flag during the pre-game playing of the national anthem (what I described as "symbolic counter-speech"). Her coaches and teammates accepted her protest. But coaches and commentators criticized her actions, if only for distracting from the team. Auriemma, among others, insisted that whatever a player's right to speak, she did not have right to be part of the UConn women's basketball team (or to speak through her participation in the UConn women's basketball team). I am happy to see he has come around on this.
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Friday, July 15, 2016
Why Tom Brady Was Smart to Not Seek a Stay from the Supreme Court
Update: Shortly after this post was published, Tom Brady announced that he will not be seeking a stay of his suspension at the Supreme Court, and will not litigate the DeflateGate case any further. For the reasons noted below, this was probably a smart decision, as receiving a stay could have backfired for Brady given the likely briefing schedule for his case at the Supreme Court.
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With the Second Circuit Court of Appeals having denied Tom Brady and the NFLPA a rehearing in the DeflateGate case, attention has turned to whether the U.S. Supreme Court will stay his four-game suspension in time for him to suit up for the Patriots week one of the NFL season. And as Alan Milstein noted yesterday, because the Supreme Court is currently in recess, any request by Brady for a stay would be decided by Justice Ruth Bader Ginsburg.
While I think the odds that Justice Ginsburg would grant Brady a stay are quite a bit lower than Alan, in some respects Brady may actually, surprisingly, be better off without a stay. Indeed, if Brady's suspension were to be stayed, only to have the Supreme Court ultimately deny his cert petition, then Brady could instead find himself sitting out the Patriots' final four regular season games, or even, potentially, the team's first playoff game.
Specifically, Brady's petition for certiorari is currently due October 13th. Once that brief is filed, the NFL would then have 30 days to file its opposition brief. However, under Supreme Court Rule 30.4, parties opposing a cert petition are entitled to one extension as a matter of right. This means that the NFL could, if it wanted, receive an additional 30 days to file its opposition brief.
Assuming the NFL does not, in fact, request an extension, then its opposition brief would be due November 14th. At that point, the Supreme Court would give Brady 14 days to file a reply brief, before submitting the case to the full Court for consideration.
This means that, should Brady receive a stay of his suspension, the Court could decide whether to grant his cert petition during its conference of Friday Dec. 9th, with a decision expected to be announced on Monday Dec. 12th. And if the Court were to deny Brady's petition -- the most likely scenario, in my opinion -- then his four-game suspension would presumably go into effect immediately.
That means the Patriots would find out they'd lost their star QB only hours before their Monday night game against the Baltimore Ravens. He'd then also miss New England's final three regular season games as well (at Denver, vs. the Jets, and at Miami).
Alternatively, while less likely, if the NFL didn't reinstate Brady's suspension in time for Monday Night Football, then his suspension could potentially run into the first week of the playoffs instead.
Either way, then, while receiving a stay from the Supreme Court would certainly be a short-term victory for Brady, it could ultimately backfire should the Court eventually deny his cert petition. In that case, Brady may well wish he'd just sat out the season's first four games.