Sports Law Blog
All things legal relating
to the sports world...
Monday, May 23, 2016
The Notorious RBG & Tom Brady

If you're a fan of the New England Patriots, or believe the NFL has expanded the power of the commissioner's office illegally, you have yet another reason to believe in the wisdom of Supreme Court Justice Ruth Bader Ginsburg.

Tom Brady's appeal to the 2nd Circuit Court (filed today) requires 7 of the 13 judges to conclude the case requires further scrutiny. If they do authorize an en banc hearing, 8 out of 14 judges will need convincing the decision was extraordinary, with wide-ranging implications for parties other than Brady and the NFLPA.

While the 2nd Circuit typically respects three-judge panel decisions, because the lone dissent vote was cast by Robert Katzmann, the chief justice of the entire 2nd Circuit, there appears to be a greater chance than usual to grant an en banc hearing. A decision on an en banc hearing should be released by July 4th. If granted, Brady's suspension will be stayed until a final ruling. If denied, he and the NFLPA have a right to appeal to the Supreme Court.

Brady and his legal team would likely ask the 2nd Circuit for a stay (suspension of his punishment) until the Supreme Court decides on whether or not to hear the case. The Supreme Court's decision will rest on whether there are critical labor law issues, impacting parties well beyond football, needing a clear resolution. The 2nd Circuit has the right to reject that appeal, reinstating the four-game suspension for this season. Finally, as one last Hail Mary, Brady could ask the Supreme Court for a stay until they decide whether to hear the case.

If the 2nd Circuit denies a stay request, there is one final person who determines IF Brady's receives a stay while the Supreme Court decides? The Supreme Court justice assigned to the 2nd Circuit, Ruth Bader Ginsburg. And what does the Notorious RBG think of dissenting opinions?

"Dissents speak to a future age. It's not simply to say, 'my colleagues are wrong and I would do it this way,' but the greatest dissents do become court opinions." ~ Justice Ruth Bader Ginsburg.

Monday, May 09, 2016
Adding to list of summer sports law programs...Florida Coastal School of Law

As we blogged about last month, there are many great summer sports law programs---including at the University of Oregon Law School, the University of New Hampshire School of Law and Case Western Reserve Law School. Another great program can be found at Florida Coastal School of Law. It will run from May 16 to June 24. Be sure to check out the link for all of the details.

Tuesday, April 26, 2016
Delayed Justice: Jury verdict in "The Hillsborough Disaster"

The top Sports Law story in the world today?

No, not the awful ruling by the Second Circuit reinstating the suspension of Tom Brady for, more probably than not, conspiring to deflate a few footballs contrary to the laws of physics.

A far more significant event occurred across the pond where justice was actually served.

After two years of hearing evidence, a jury in Liverpool has found that soccer fans were “unlawfully killed” in what became known as the Hillsborough Disaster in 1989. The event was a match between Liverpool and Nottingham Forest at Hillsborough Stadium. Police and stadium personnel had set up pens without adequate turnstiles to prevent fans from confronting one another. The result was chaos as 96 died from crush injuries and 796 lay injured. Originally, the authorities blamed the fans and circulated false stories about individuals acting in a manner justifying police actions.

The jurors concluded the fans were in no way responsible for the incident and that the police, stadium personnel, and emergency responders were entirely to blame for the tragedy. When the verdict was announced, tears were shed and those in attendance rose and applauded the jury.

Justice may have been delayed after nearly 30 years but it was not denied. The same cannot be said for what happened at Foley Square in a case of far less importance to the world of sports, since it was literally, like the show Seinfeld, about nothing.

Tuesday, April 19, 2016
University of New Hampshire Summer Sports Law Institute

This summer at the University of New Hampshire Durham campus we will be offering 4 outstanding sports law courses--taught by leading experts--as part of our 4-week UNH Law Summer Sports Law Institute from May 23 to June 17. The UNH Law Summer Sports Law Institute is part of the highly-acclaimed UNH Law and Franklin Pierce Center for IP's Intellectual Property Summer Institute. Here is more information on the courses:

Week 1, May 23 to 27 

NCAA Division I Legislation and Compliance, taught by Professor Katherine Sulentic, the Associate Director of Enforcement on the NCAA enforcement staff and Chair of the Academic Integrity Unit. This class is ideal for those who intend to practice law in the college sports industry and those who seek a mastery of NCAA compliance and enforcement issues.

Week 2, May 31 to June 3

Sports Law and Investigative Reporting, taught by Professor B.J. SchecterSports Illustrated's executive editor and editor of Campus Rush, and me. This class is ideal for law students and attorneys who want to gain a better understanding of journalism and investigative reporting and for journalists who want to gain a better understanding of the legal system.

Week 3, June 6 to 10

Fantasy Sports and Gaming Law, taught by Professor Daniel Wallach, a shareholder at Becker & Poliakoff, P.A. and a leading commentator on all things legal and business related to the fantasy sports and gaming industries--Professor Wallach is the gaming law guru. This course is ideal for those who want to gain a better understanding of the growing and transformative body of law in the fantasy sports and sports gaming industries--two of the fastest growing industries.

Week 4, June 13 to 17

Sports Ethics and Bioethics: Playing Fair and the Law, taught by Professor Alan Milstein, a shareholder of Sherman Silverstein and Chairman of the Firm's Litigation Department and also a leading commentator on sports law and bioethics and the law. Professor Milstein has litigated on behalf of Allen Iverson, Carmelo Anthony, Eddy Curry, Allen Houston, Maurice Clarett and other sports figures. This class is ideal for those who want to learn more about connections between sports, law, health and bioethics. You will hear first-hand from the attorney who represented Eddy Curry in his DNA test dispute with the Chicago Bulls.

A few quick but important items:
  • Each class is 1 credit, at a cost of $1,370 ($1,233 for NH residents), and each class is open to law students, attorneys, compliance officers, graduate students, journalists, businesspersons and many others. You can take all or any of the courses.
  • For those coming from out of town, housing and meal plans are available at a very low cost.
  • You can take the class physically on the UNH Durham campus or virtually on the UNH Concord campus.
  • If you're interested in taking a class for credit, click here; if you're interested in taking a class but not-for-credit, click here.
  • New Hampshire--which Politico Magazine recently ranked as the #1 state in terms of such factors as education, health, income and employment--usually offers amazing weather over the summer and there are tons of fun things to do while you're up here.
  • If you have any questions, shoot me an email at michael.mccann[a] Hope to see you this summer!

Oregon Law Summer Sports Institute

I'm excited to be back teaching in the Oregon Law Summer Sports Institute, which will run from July 6 to August 5, 2016 in Eugene, Oregon. I'll be teaching on the intersection between media law and sports law--including in the context of Deflategate--and I'll be presenting on NCAA legal issues as well.

Run by Oregon law professor Robert Illig, the Oregon Law Summer Sports Institute is a terrific program and includes a wide variety of sports law classes and outstanding faculty members. Be sure to check it out.

Great Lake Sports and Entertainment Law Academy

If you are interested in studying sports law, check out the Great Lake Sports and Entertainment Law Academy, hosted by Cleveland-Marshall College of Law and Case Western Reserve University School of Law in Cleveland, Ohio from May 16 to June 3. It is led by the legendary Peter Carfagna and top professor Craig Nard, and the program offers an impressive list of courses.

Sunday, April 17, 2016
Not an infield fly

On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.
[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.
Some comments after the jump.
Read more »

Saturday, April 16, 2016
New Law Review Article Addresses How to Regulate Daily Fantasy Sports

It is my pleasure to announce the acceptance for publication in Indiana Law Journal of the third article in my fantasy sports trilogy, entitled "Regulating Fantasy Sports: A Practical Guide to State Gambling Laws, and a Proposed Framework for Future State Legislation."

This article analyzes how U.S. states currently regulate the fantasy sports marketplace, and proposes a framework for future state laws to effectively regulate both traditional fantasy sports and "daily fantasy sports."  The final section of this article proposes a comprehensive framework that would allow for states to effectively regulate both traditional fantasy sports and 'daily fantasy sports' in a meaningful way, in conjunction with existing state gambling laws.

With the upcoming publication of "Regulating Fantasy Sports" in Indiana Law Journal later this year, the full trilogy for full-length fantasy sports articles now include the following.

1.  A Short Treatise on Fantasy Sports and the Law (Harvard Journal of Sports and Entertainment Law, Winter 2012)

2. Navigating the Legal Risks of Daily Fantasy Sports (Illinois Law Review, Winter 2016).

3.  Regulating Fantasy Sports: A Practical Guide to State Gambling Laws, and a Proposed Framework for Future State Legislation. (Indiana Law Journal, Fall 2016).

Tuesday, March 22, 2016
Debating the Infield Fly Rule in Penn Law Review

In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule.

My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.

How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change

Image result for rutgers football
Last spring, Rutgers Law Review held its annual symposium on the legal issues surrounding professional and college football.  I gave the symposium's keynote address, entitled "How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change."

My keynote address is now available for download here, in article form.  The thrust of my speech is that if the antitrust plaintiffs ultimately prevail in the O'Bannon and Jenkins, it would enhance college football by leading to an allocation of resources that is more equitable for all stakeholder groups, including both the athletes and consumers.

Saturday, March 19, 2016
Video and getting a call "right"

I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (what players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means or that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive or what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.

Thursday, March 17, 2016
Professor Michael Carrier reviews Indentured: The Inside Story of the Rebellion against the NCAA

Rutgers Law Professor Michael Carrier has authored the following review of Joe Nocera and Ben Strauss new book, Indentured: The Inside Story of the Rebellion Against the NCAA.

* * *

The NCAA’s Exploitation of Student-Athletes
Michael A. Carrier*

“Amateurism.” “Student-athlete.” Such phrases conjure the finest ideals. Sound body, sound mind. Top-notch educations and athletic contests.
But what if it’s all a façade? What if the powers-that-be neglect the “student” and exploit the “athlete”? What if amateurism is an empty phrase the NCAA hides behind in its embrace of commercialism on the backs of athletes?
These are the questions at the heart of Joe Nocera and Ben Strauss’s gripping new book Indentured. The authors rip the lid off the NCAA’s celebrated morals, weaving a complex—and sad—story of student exploitation, extravagant riches, and blatant hypocrisy.
NCAA football and men’s basketball are big business. The NCAA generates $900 million in annual revenues while coaches make millions and ESPN pays billions. Schools flee long-standing conferences to receive more money. Gleaming new football facilities boast full-size indoor practice fields and lounges with every possible amenity.
But this big business does not come from nowhere. It comes from the athletes, who put in 50-hour workweeks. It comes from “voluntary” practices that are “mandatory in everything but their name.” It comes when coaches push severely-injured players back onto the field and don’t allow them to see a doctor.
Students suffer not just physically but also financially. More than 4 of 5 football athletes on full scholarship live below the poverty line. But they are not allowed to eat university-provided food at any time other than three specified times a day. And they must pay out of pocket to treat their injuries.
The disconnect between the NCAA’s riches and the athletes’ poverty would have been jarring enough. But the authors heap insult upon injury in their methodical discussion of the 400-page rulebook the NCAA uses as a hammer or, alternatively, ignores.
The NCAA allows athletes to maintain a 20-hour week during football road trips by magically capping time related to a game event (such as travel, play, and team meetings) at three hours. It ignored its own rules (pretending amendments passed that did not) in signing a promotional deal with Pontiac. And it looked the other way to protect the “untouchable” John Wooden-led UCLA basketball team when a prominent booster arranged for food, clothes, and housing and provided players with cars, stereos, airline tickets, and money.
On the other hand, when the NCAA decides to punish a school, it pulls out all the stops. A USC coach was punished on the basis of “completely made up” witness testimony, unethical communications, and conduct deemed by a court to be “malicious.” UNLV’s Jerry Tarkanian found himself a target, as the NCAA threatened witnesses and used “largely discredited” testimony because they “really want to get him.”
In addition to vendettas, the NCAA has applied its rules in ways that ignore common sense and decency. A Mississippi State football player was suspended for three years for unknowingly receiving a $12 discount at a thrift shop. A University of Oklahoma baseball player lost his eligibility for “profiting” from a book he wrote detailing his struggles with brain and stomach cancer. The University of Nebraska received two years’ probation for covering the costs of books recommended (rather than required) by professors.
Today, the shackles are—ever so slowly—being loosened. The most powerful conferences have guaranteed four-year scholarships, enacted a concussion protocol, and agreed to allow schools to pay a few extra thousand dollars covering the full cost of attendance. And while the Northwestern football players’ attempt to form a union was not successful, Congress continues to look over the NCAA’s shoulder and antitrust litigation seeking even greater player compensation than received in the O’Bannon trial (payment up to the cost of attendance) is underway.
Joe Nocera and Ben Strauss have done a masterful job exposing the contradictions at the heart of a commercial NCAA built on the backs of impoverished student athletes. Though appearing to be a radical title for a book about college athletes, readers will walk away from Indentured shaking their head at just how unfair the system is.
* Distinguished Professor at Rutgers Law School, author of Innovation for the 21st Century, co-author of IP and Antitrust treatise, and signer of Ninth Circuit brief on behalf of the O’Bannon plaintiffs.
Michael A. Carrier
Distinguished Professor
Rutgers Law School
217 North 5th Street   Camden, NJ 08102

Web  Book  Treatise  SSRN  @profmikecarrier

Tuesday, March 01, 2016
Drexel University: College Athletes’ Rights Conference

At Drexel University, the conference will begin Thursday, March 24 from 4-8 p.m., the evening before the NCAA Division I men’s basketball regionals, at the National Constitution Center, a national stage for dialogue about constitutional rights.  Starting at 5:00pm, keynote addresses will be delivered by the New York Times’ Joe Nocera, who will speak about the new book he co-authored, “Indentured: The Inside Story of the Rebellion Against the NCAA”; and Harry Edwards, PhD, on college athletes’ rights as civil rights. At 6:30 p.m., a panel on college athletes’ rights for the 21st century will include Taylor Branch (Pulitzer prize winning author, The Shame of College Sports), Ramogi Huma (National College Players Association), Kain Colter (pro football player with the Los Angeles Rams and College Athletes Players Association), Ed O’Bannon (lead plaintiff in O’Bannon v. NCAA) and Billy Hawkins (professor, author of The New Plantation), moderated by ESPN’s Kevin Blackistone.

The second day of the conference, Friday, March 25, from 8:30 a.m. – 5:30 p.m., will be held at Drexel’s Gerri C. LeBow Hall. It will include an address by Sonny Vaccaro, the former marketing executive for Nike, Adidas and Reebok; and an interactive dialogue lead by Jeff Prudhomme, vice president and fellow of the Interactivity Foundation; as well as panel discussions on challenging power dynamics, college athlete activism (Grace Yan & Nicolaus Watanabe, University of Missouri & Ann Pegararo, Laurentian University), rethinking player representation models (Richard Southall, University of South Carolina; Michele Donnelly, Kent State, Ivan Soto, Arena Football League Players Association) and helping college athletes access their own voices (Eddie Comeaux, University of California-Riverside; Ellen J. Staurowsky, Drexel).

The final day of the conference, Saturday, March 26, from 8 a.m. – 1:30 p.m., also will take place at Gerri C. LeBow Hall. A debate on whether or not the NCAA should be afforded an antitrust exemption will feature Marc Edelman (law professor, City University of NY and sport business writer,; Donna Lopiano (Sport Management Resources), Joel Maxcy (Drexel Sport Economist) and Andrew Zimbalist (Smith College Sport Economist). The conference will close with a panel on college athletes, the NCAA and due process. Panelists include Matt Haverstick (Kleinbard LLC & plaintiff’s attorney in Corman v. NCAA); Richard Johnson (plaintiff’s attorney in Oliver v. NCAA), Steven Silver (McBreen & Kopko and co-founder, The Legal Blitz) and Ben Strauss (New York Times).

Here is a link to registration site. Finally, more information about the conference and a full schedule is available here.

Thursday, February 18, 2016
Penn Sports Law Symposium: "Sports in 2025"

On Friday, February 19th, the 3rd Annual Penn Law Sports Symposium will be held in Philadelphia. The keynote speaker is noted NBA player agent Leon Rose and there will be introductory remarks offered by Jon Wertheim of Sports Illustrated.

The day will then be broken down into three panels:

Panel 1: The Anticipated Growth in International Markets and Publicly Funded Stadiums

1. Moderator: Ken Jacobsen (Practice Professor of Law at Temple University Beasley School of Law; Lecturer in Sports Law and Co-Owner of sports businesses/franchises)
2. Andrew Brandt (NFL Business Analyst at ESPN; Columnist for Sports Illustrated and; Director of the Moorad Center for Sports Law at Villanova University; Former Vice President of the Green Bay Packers)
3. Andrew Altman (2012 London Olympics Planning)
4. Randy Campbell (Executive Director and Head of Sports Facility Finance at Morgan Stanley)
5. Irwin Raij (Co-Chair of Foley & Lardner’s Sports Industry Team)

Panel 2: The Evolving Role and Legal Position of Daily Fantasy Sports
1. Moderator: Daniel Roberts (Writer at Fortune Magazine/Yahoo)
2. Marc Edelman (Baruch Law Professor; Expert in Sports and Gaming law)
3. Darren Heitner (Forbes; Lawyer, Writer, and Professor)
4. Alan Milstein (Lead plaintiff attorney in DFS class action; Partner at Sherman Silverstein)
5. Daniel Wallach (Nationally-recognized Sports and Gaming law attorney)

Panel 3: The Future of Amateurism and NCAA Compliance
1. Moderator: Karen Weaver, Associate Clinical Professor and Interim Program Director, Sports Management, Drexel University
2. Jim Corcoran (Heisman Trust)
3. Oliver Luck (Executive Vice President of Regulatory Affairs at NCAA; Former Director of Athletics at West Virginia University)
4. Warren Zola (Boston College Carroll School of Management Professor; Expert in Sports Law)
5. Dan Werly (Bleacher Report, Managing Editor of The White Bronco)

You'll note that there are four Sports Law Blog contributors who will be participating, Edelman, Milstein, Wallach and Zola, along with several friends of the SLB including Brandt, Heitner, and Werly. If you're interested in attending, here's a link to the conference website.

Saturday, February 13, 2016
Triumph and Tragedy: A Lesson in Equipoise

The story of Jenrry Mejia, the first major league baseball player to receive a lifetime ban for taking Performance Enhancing Drugs, reads like a movie script. Mejia was just 17 when he was drafted out of a life of poverty in the Dominican Republic. He had never even thrown a baseball before the age of 15. As a boy, rather than pursue education, he worked full time shining shoes for $8 a day. He and his family were thrilled to receive the $16,500 signing bonus so he could start his career playing for the Dominican Summer League Mets in 2007.

Mejia made his major league debut in 2010, becoming one of the youngest players ever to make an opening day roster. By 2014, he had become the Mets closer and looked to be on the way to making the kind of money that dreams were made of back in the Dominican Republic. He was fun to watch, particularly when he would do his strikeout dance moving backward off the mound to end an inning.

Perhaps because he was rushed into the physically destructive role of throwing a baseball at top speed, Mejia continued to be plagued by injuries to his throwing arm. Twice he had been suspended after testing positive for steroids, obviously taken not to hit home runs but to get himself back on the mound. Then this past week, he tested positive for PEDs once again and, along with Pete Rose, became one of only two players banned from baseball for life.

The drug detected in Mejia was Boldenone Undecylenate, also known ironically as “Equipoise.” It is manufactured for use by veterinarians for the treatment of horses and cattle and is not approved for humans anywhere in the world. It works by promoting erythropoietin (EPO), the body’s hormone essential to the production of red blood cells. The more red blood cells, the higher oxygen carrying capacity, the longer one can work out, the sooner one can rehabilitate, or so the story goes.

The side effects of the drug are relatively minor: hair loss, acne, oily skin, increased hunger, though a rare few may suffer from liver or kidney problems. A major drawback of the drug is that its use can be detected by a simple urine test for as long as 18 months after injection.Why then would a major league player risk his career by taking Equipoise, particularly a prior offender who knows he is subject to random urine tests? Where would he learn of such a drug? How would he get it? One can only speculate that someone like Mejia, who knows firsthand what life is like in utter poverty, would do anything to get his body back in tune. Perhaps, like its name, the drug presented what Mejia thought was his only hope of counterbalancing the life he had left behind. What does he do now at the tender age of 27?

This piece is not about making excuses for Mejia’s poor choices. But his story is a tragedy that reveals much about the sometimes exploitive industry we know as professional sports. Surely, a system that prioritizes proper physical conditioning, medical treatment, and education for those like Mejia plucked out of a poor barrio as a kid is a better alternative than the arbitrary penal system in place today.

Wednesday, February 10, 2016
Navigating the Legal Risks of Daily Fantasy Sports: Full, Published Article Now Available

It is my pleasure to announce that Illinois Law Review has published the final version of my article "Navigating the Legal Risks of Daily Fantasy Sports."  Coinciding with formal publication, I have also made available on SSRN Sections V and VI of the article, which advise companies on strategies to hedge their legal risk when operating "daily fantasy sports" contests.

Tuesday, February 09, 2016
A Dream Better Deferred

Sports and Bioethics have converged once again. In August, a half million tourists, journalists and athletes from literally all over the world are scheduled to travel to Brazil for the Summer Games. The problem is Brazil is Ground Zero for the Zika Outbreak, which the World Health Organization has called “a public health emergency.”

The Zika virus gets its name from the Zika Forest in Uganda where a certain species of mosquito thrives. One can contract the virus not only by being bit by the Aedes mosquitos but through sexual contact and perhaps through saliva and sweat.

What makes the virus so insidious is that most people who contract it may not even know they are infected because the symptoms are so slight. But for those who are pregnant, the virus may cause their babies to be born with abnormally small heads and serious vision problems. They and their parents will face a lifetime of struggle and heartache.

Many, including me, believe it is irresponsible to hold the Olympics under these circumstances.

While tourists can choose whether to accept the risks of exposure and call off the visit, the athletes and sports journalists really have little choice in the matter. Hope Solo, sure to be the goaltender for the U.S. women’s Soccer team, is troubled by having to decide between a lifelong dream and her health. “If I had to make the choice today,” she said recently, “I wouldn’t go.” Pointedly, she added, “No athlete . . should be faced with this dilemma. Female professional athletes already face many different considerations and have to make choices that male professionals don’t.”

And to think that those exposed, with little awareness of what they are carrying, would then travel back to virtually every country on earth is a nightmare scenario. Can you imagine holding the Olympics in Guinea two years ago during the Ebola Outbreak?

Those who will suffer from the decision to hold the Olympics in August will be the as yet unborn. And if even one child can be spared a life of disability by waiting a year for the games to begin, the costs of the delay will be well worth it.

The Olympics are designed to be a showcase of human potential. But it should demonstrate our reasoning skills and compassion not just our physical prowess.

Friday, February 05, 2016
More intentional fouls

Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).

Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.

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.


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

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
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
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 (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.