Friday, July 31, 2009

Debating the Potential Effects of American Needle

Following on the heels of Lester Munson’s recent report on the American Needle case for – which Howard discussed last week – National Columnist Mike Freeman has written an article similarly forecasting that a Supreme Court victory for the NFL in American Needle would be a doomsday scenario for sports fans (see Sports Law Blog’s significant previous coverage of the case for more background on the litigation). Freeman asserts that if the NFL wins the case, the Supreme Court’s decision “would basically amount to a nuclear winter for sports and fans,” giving sports leagues “unlimited power” and leaving them “free of almost any legal worries.” Like Munson, Freeman believes the NFL and other leagues would use this newfound power to eliminate free agency, lower salaries paid to players and coaches, and dramatically increase prices for tickets and merchandise.

I believe that both Munson and Freeman overstate the practical significance that an NFL victory in American Needle would have on most sports fans. As an initial matter, a Supreme Court victory for the NFL will not give sports leagues complete antitrust immunity. Instead, it would simply render leagues immune from liability under Section One of the Sherman Act, a provision which prevents independent actors from colluding together in restraint of trade. The NFL, NBA, and NHL would still face exposure under other antitrust regulations, such as Section 2 of the Sherman Act, which would continue to prevent the leagues from improperly using their respective monopoly powers. Similarly, the leagues would also still be required to comply with Section 7 of the Clayton Act should they ever attempt to merge with a rival start-up league.

That having been said, I recognize that avoiding liability under Section One of the Sherman Act would be a significant victory for the NFL and other sports leagues, as most antitrust suits against the leagues allege liability under Section One. However, I do not believe that giving leagues immunity from Section One would cause them to implement the damaging policies that Munson and Freeman describe. Indeed, one need look no further than the example of Major League Baseball – which has itself been operating largely free from the constraints of Section One of the Sherman Act for nearly 80 years – to see that the NFL, NBA, and NHL are unlikely to dramatically alter their business practices should the Supreme Court declare them to be single-entities.

Despite its legendary antitrust exemption – originating from the 1922 Supreme Court decision in Federal Baseball Club v. National League – MLB has not used its antitrust immunity to implement the types of damaging business practices that Munson and Freeman fear will result from the American Needle case. MLB has generally run its business in the same manner as the other sports leagues. As but one example, MLB does not use its exemption to charge fans significantly higher ticket prices than the other sports leagues. As J.C. Bradbury, a professor of economics at Kennesaw State, discusses in his recent book The Baseball Economist: The Real Game Exposed, MLB’s average ticket prices are the lowest among the four major sports. While one may convincingly argue that MLB must charge lower prices because each of a team’s 162 games in a baseball season have less individual significance than an single game in the shorter NFL, NBA, or NHL seasons, Bradbury also presents data adjusting the average ticket price to account for the significantly longer MLB season, and finds that MLB’s adjusted average price is still the second lowest of the four major leagues, trailing only the NFL.

This should not come as a surprise, as none of the major sports leagues operate in a vacuum. Each league competes against the other major sports leagues, as well as other forms of entertainment (such as movies, concerts, theater, etc.), for consumers’ entertainment dollars. It would simply be bad business to arbitrarily raise the price of tickets should the leagues receive newfound antitrust immunity. Moreover, as Howard has noted, the leagues are also unlikely to abuse Section One immunity for the simple reason that Congress would be able to step in and take the leagues’ immunity away. Along these lines, Professor Mitchell Nathanson argued in his 2005 article The Irrelevance of Baseball’s Antitrust Exemption: A Historical Review, 58 Rutgers L. Rev. 1, that MLB has ironically been forced to largely abide by the Sherman Act, for fear that Congress would otherwise revoke its exemption from antitrust law.

While I believe that the effects of an NFL victory in American Needle on consumers have thus been overstated by Munson and Freeman, I do agree that a victory for the leagues could be damaging to labor relations with the players. I have previously argued that sports leagues should not be granted Section One immunity for purposes of labor disputes, both because the leagues do not meet the Supreme Court's single-entity standard in the labor market, but more significantly because antitrust immunity would disrupt the careful balance that has been drawn between antitrust and labor law through the so-called non-statutory labor exemption. Accordingly, I believe that immunizing leagues from Section One liability in labor disputes would lead to a deterioration in labor relations. Indeed, in a recent article, Reevaluating the Curt Flood Act of 1998, I argued that MLB labor relations noticeably improved after Congress exposed owners to the threat of an antitrust lawsuit by the players.

Interestingly, however, player-owner labor relations is an area in which many scholars have argued that league antitrust liability has little import, in light of the 1996 Supreme Court opinion in Brown v. Pro Football Inc., which generally requires that players decertify their union in order to file an antitrust suit against ownership. These scholars believe that the chances of union decertification are slim, and therefore that the threat of a potential antitrust suit has little bearing on labor relations between players and owners. If these scholars are correct, then an NFL victory in American Needle would be expected to have little effect on labor relations in the leagues. However, the players unions appear to believe that American Needle presents significant risks to their memberships. Munson’s article shows that the unions appear to be preparing to file amicus briefs in the case, while Freeman quotes an unnamed source in the NFL players union as stating that single-entity status for the leagues “could change everything.” Accordingly, I believe that should the Supreme Court rule in favor of the NFL, it should not extend the leagues’ Section One immunity to labor disputes.

All in all, though, with the exception of the potential effects of the decision on labor relations, I believe that the practical impact of the American Needle decision on sports fans is being overstated by Munson and Freeman. While an NFL victory would have substantial effects on the field of sports law, I do not believe it would significantly harm most consumers.


For more on my personal views of the single-entity issue and the American Needle case, please see my law review articles There’s No ‘I’ in ‘League’: Professional Sports Leagues and the Single Entity Defense, 105 Mich. L. Rev. 183 (2006), and A Proper Analysis of the National Football League Under Section One of the Sherman Act, 9 Tex. Rev. Ent. & Sports L. 281 (2008).

Thursday, July 30, 2009

Plaxico Burress: The Jury Nullification Strategy?

I have a new column on concerning Plaxico Burress' unusual decision to testify before a grand jury. Here's an excerpt:

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Depending upon the prosecutor's style and tactics, Burress may have testified in a very hostile environment. By testifying, Burress may have also unwittingly revealed his potential trial strategy to prosecutors. Even worse, if he ultimately faces a trial and testifies in it, his testimony must be consistent with his grand jury testimony, for otherwise he could face additional charges for perjury and obstruction of justice.

* * *

Unfortunately for Burress, however, any justification and excuse for carrying the gun are irrelevant under New York law. If he possessed a loaded firearm outside of his home or place of business, he committed the crime. It is a bright line matter.

As New York criminal defense attorney and former Manhattan prosecutor Jeremy Saland of Crotty Saland, LLP tells, Burress' appearance before the grand jury appears driven not by a desire to claim innocence but rather by a desire for jury nullification -- meaning, in this case, the grand jury would decide to disregard the actual law which Burress appears to have broken.

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To read the rest, click here.

Wednesday, July 29, 2009

Catching Up on Gillispie v. University of Kentucky Athletic Association

One increasingly interesting, sports-related lawsuit which hasn't garnered much attention here is Gillispie v. University of Kentucky Athletic Association Inc., the suit filed by former University of Kentucky men's basketball coach Billy Gillispie. As most are probably aware, Gillispie was fired by Kentucky on March 27, 2009, after completing two years of a seven-year agreement valued at $1.5 million per year.

For the next two months, Gillispie and the University attempted to negotiate an amicable resolution to the remaining term of the contract, until Gillispie finally filed suit in the United States District Court for the Northern District of Texas on May 27, 2009. In his Complaint, Gillispie asserts four causes of action: (i) breach of contract, (ii) fraud, (iii) fraudulent misrepresentation and inducement, and (iv) tortious interference with prospective contract. The breach of contract claim asserts that Kentucky failed to agree to pay Gillispie the $1.5 million/year he was owed under the agreement for 4 years following his termination without cause. The other claims effectively allege that the University fraudulently induced Gillispie to sign with the University in 2007, insofar as the University had never intended to pay Gillispie post-termination.

The day after Gillispie filed suit in Texas, the University of Kentucky itself filed suit against Gillispie in a Kentucky state court, seeking a declaratory judgment that the University never entered a formal contract with Gillispie, and therefore does not owe him any additional compensation.

One of the initial issues which must be resolved is whether the litigation should proceed in Texas or Kentucky. The University of Kentucky Athletic Association filed a motion to dismiss in late June in the Texas action, asserting that the court lacked personal jurisdiction. Alternatively, the Athletic Association asked that the case be moved to Kentucky.

Once the courts determine the proper forum for the litigation, the parties will likely focus their attention on two primary issues. First, the parties dispute whether Gillispie ever entered a formal contract with Kentucky. Rather than execute a formal written employment agreement, Gillispie and the University instead allowed their relationship to be governed by the initial two-page Memorandum of Understanding entered in April 2007. In his complaint, Gillispie cites correspondence from the University stating that the MoU "can itself serve as the employment contract" for Gillispie. Meanwhile, the University's declaratory judgment complaint alleges that the MoU is not an enforceable contract, as it expressly left material terms to be negotiated between the parties. According to the University's complaint, the parties were still negotiating a formal employment agreement as recently as February of this year.

A second issue which will be disputed by the parties is whether Gillispie was actually employed by the University of Kentucky or the University of Kentucky Athletic Association, and thus which is the proper party for purposes of the suit. Gillispie has asserted that he was employed by the University of Kentucky Athletic Association, the tax-exempt, non-profit organization which manages Kentucky's athletic operations. The University of Kentucky denies this allegation, and asserts instead that it employed Gillispie itself. The significance of this distinction is the fact that the University of Kentucky is a state agency, whereas the Athletic Association is a private corporation. Therefore, if Gillispie was employed by the University itself, the University would be able to invoke the doctrine of sovereign immunity in its defense, potentially limiting Gillispie to only his breach of contract claim. Meanwhile, if Gillispie was in fact employed by the Athletic Association, the doctrine of sovereign immunity will not be available, and Gillispie will be free to proceed with his fraud and tort claims.

The Lexington Herald-Leader has been tracking the litigation, and earlier this month reported that the University of Kentucky Athletic Association's 2007 tax return listed Gillispie as the organization's highest-paid employee. As the newspaper noted, this disclosure places the University and the Athletic Association in an awkward position. If Gillispie was in fact employed by the University of Kentucky, and not the Athletic Association, then the Association may be found to have submitted false information to the IRS, an action which could potentially threaten its tax-exempt status. Alternatively, if the Athletic Association was in fact Gillispie's true employer, then the sovereign immunity defense will be unavailable to the University, increasing its potential exposure in the suit.

With so many fundamental issues in dispute, it will be interesting to watch how this litigation unfolds in the coming months.

Catching Up with Links

* Rick Karcher was interviewed by the New York Times in a recent story on a class action lawsuit filed this past spring by former college football players against Electronic Arts for using their images in video games without permission.

* Tim Epstein was recently interviewed on a Chicago station to discuss the Ponzi scheme associated with Mike North’s Chicago Sports Webio, an internet radio site for Chicago sports.

* Gabe Feldman discusses a lawsuit filed by Marist Universit against James Madison hoops coach Matt Brady, who left Marist in 2008 and who Marist believes essentially stole some of its recruits.

* Geoff Rapp was interviewed by the National Post on the American Needle litigation.

* Congrats to Professor Alfred Mathewson, a sports law professor at the University of New Mexico School of Law and a friend of many of us here on the blog, on being named Acting Director of the Africana Studies Program at UNM.

* I was interviewed on the Dan Patrick Show last week to discuss a video that's made its way around the Internet on ESPN's Erin Andrews apparently undressing. It's not every day when I get to talk about Peeping Tom Laws, or the precedential value of Pamela Anderson's sex tape.

* I was interviewed on Seattle KJR 950 Sports Radio last week on Mike Gastineau's show to discuss O'Bannon v. NCAA. Jeff Levine of the Biz of Basketball also has a good piece on O'Bannon v. NCAA. Jon Solomon of the Birmingham News similarly does a nice job examining O'Bannon v. NCAA.

* I was interviewed by Scott Drake on the Legal Broadcast Network to discuss the legal issues of the Phoenix Coyotes and their potential relocation.

* I was interviewed by Jeff Montgomery of the Delaware News Journal to discuss the leagues' lawsuit over sports betting and gambling. Online Casino Advisory pools together a variety of views on the same topic and Street and Smith's Sports Journal also does a really nice job pooling together various media sources. Gabe blogged about this same topic yesterday.

* Thank you Darren Heitner of the outstanding Sports Agent Blog for discussing my forthcoming law review article on Judge Sotomayor and sports law. If you have any interest in the work of sports agents, either from a law or business standpoint, there is no better blog to read than Sports Agent Blog.

* Tim Ziller of Fanhouse with a very good argument against the NBA's age limit.

* Brian Baxter covers the bases of sports law in the latest sports law entry on Am Law Daily.

* Mark Alesia of the Indianapolis Star interviews various people for a piece on litigations mentioned above.

* If you've ever watched the film Hoop Dreams, check out this great piece by SI's Seth Davis on William Gates, now 38, and his ministry work back in his old neighborhood. Davis also mentions that Arthur Agee has had less success.

* We love debating age limits on Sports Law Blog, and whenever we do, it's always about age floors -- the minimum requisite age one must be to play in a sport or league. Doug Ferguson of the Associated Press has an interesting piece on an age ceiling for the British Open.

Tuesday, July 28, 2009

The Fate of Sports Gambling in Delaware Might Rest in the Hands of...Bill Simmons

He might now know it yet, but Bill Simmons (aka,’s “Sports Guy”) could play an important role in the outcome of the lawsuit filed by the NFL, NBA, MLB, NHL, and NCAA against the Delaware Sports Lottery. The leagues claim that the single-game bets offered by the lottery violate federal and state law. The federal claim deals with the scope of the grandfather clause contained in the Professional and Amateur Sports Protection Act (“PASPA”). Unless he has quietly gained an expertise in federal statutory interpretation , Simmons won’t play a role in that claim. He might, however, find himself playing a key role in the resolution of the state law claim.

As I discussed in an earlier post, the state law claim will require the court to answer the classic legal question—How much skill is involved in picking the winner of an NFL game with a point spread?* If chance, or luck, is the predominant factor, the single game bets will constitute a legal “lottery” game under the Delaware Constitution. If skill controls, then the single games are not a “lottery” and are therefore illegal.

So, how would a court determine whether betting on NFL games is mostly skill or luck? In a 1977 case involving the original Delaware Sports Lottery, a federal court noted that the “results of NFL games are a function of myriad factors such as the weather, the health and mood of the players and the condition of the playing field. Some educated predictions can be made about each of these but each is also subject to last minute changes and to an element of the unknowable, or to put it another way, to an element of chance.” That is not a particularly controversial conclusion, and the NFL has worked very hard to create a league where any team (even my beloved Jets) can win on any given Thursday, Sunday, or Monday.

The court also relied on some interesting “scientific” evidence—the success rate of “Jimmy The Greek,” the (in)famous sports handicapper, in picking NFL games. The court determined that the Greek’s mediocre record in picking NFL games supported its conclusion that betting on NFL games was more chance than skill. After all, if an “expert” could not get more than 50% of the games correct, how much skill could really be involved? Notably, all of the games in the original lottery were parlays, which required players to pick the winner of multiple NFL games, so the court never addressed the issue of the amount of chance involved in picking the winner of a single game with a spread.

How will the court decide that issue here? How will it determine if the point spread turns each game into a 50/50 bet, or if it merely ensures that equal amounts of money are bet on both teams? The court might turn to Bill Simmons. Simmons is not quite a modern version of Jimmy the Greek—the 2000’s version of the Greek is probably charging a fee for his betting advice somewhere on the internet. I’m not even sure Simmons considers himself an “expert” NFL gambler. On the one hand, he spends a fair amount of time touting his skill as a sports gambler and has published an “NFL playoffs gambling manifesto.” On the other hand, one of the rules from the manifesto is: “Never bet heavily against a playoff team that has a coach and an owner whose last names both end in a vowel.” And, he frequently reminds his readers: “The lesson, as always? I’m an idiot.”

That said, my guess is that his NFL picks column on is more widely read than any other gambling column on the internet. While the court (and the parties in their briefs to the court) may look to the pay sites for the results from the “real” experts, Simmons’ success rate may at least be instructive (in a "people's champ" kind of way). So, how did Simmons do? From 2006-2009, he picked the winner of every NFL game against the point spread. He finished with 478 wins, 461 losses, and 32 pushes (the data from 2006-2008 was taken from here) That’s a 51% success rate (49% if you include the pushes), not much better than chance. In fairness, Simmons picked every game, and part of the skill in picking NFL games is knowing which games are “good bets” and which games are toss-ups. So, it’s not entirely fair to judge Simmons—or the amount of skill involved in picking games—by looking at the results of every game he picked. He may have had a much higher success rate if he were able to choose only one game per week.

We might be able to learn something more from the results of the 2007 season, when Simmons’ wife (aka, the “Sports Gal”) also picked every game of that NFL season against the spread. The Sports Gal finished 137-110-9, while Simmons finished 119-128-9. And, it is fair to say that the Sports Gal is not the female Jimmy the Greek. Here are explanations for some of her picks:
BUCS (+2.5) over Panthers
I don't care about either of these teams and don't know what cities they play in. (Bill thought I was kidding when I asked if the Panthers were "the Detroit Panthers" a few weeks ago. Nope.) Whenever this is the case, I take the home team as long as the spread isn't too big. A good rule of thumb for ya.

Bengals (-2.5) over DOLPHINS
If it's an all-animal matchup, I always try to weigh that accordingly. Dolphins are cuddly and nice. I don't understand why any NFL team would wear aqua blue unis and call itself "The Dolphins," then not expect to get its butt kicked. They should go with the Spearfishers. I would have taken them if they were the Spearfishers.

Rams (+6) over CARDINALS
Please, a Ram would destroy a Cardinal. Also, I don't even know where the Cardinals play. Baltimore? St. Louis? I told you, this is why I'm 23 wins over 50/50 -- I don't know even the basics.

The “expert” was 9 games under. 500 (48% correct) while the blissfully unaware novice was 27 games over .500 (55% correct). I’m pretty confident that the Delaware District Court won’t cite to the Sports Gal’s picks, but Simmons’ mediocre record may just help push along legalized single-game betting in Delaware.

In fact, the very existence of Simmons’ popular weekly picks column may hurt the NFL’s case. The NFL has claimed that legalized gambling on the NFL will cause irreparable harm to the game. In a letter to Delaware Governor Jack Markell, Roger Goodell wrote that “[t]here is no issue of greater importance to the league. That is why the NFL’s position on legalized sports gambling has remained consistent for decades. State-promoted gambling…creates suspicion and cynicism toward every on-the-field mistake that affects the betting line.”

Yet, as Governor Markell noted in his response to Goodell,
As I understand it, the NFL negotiates contracts with all of the principal broadcast networks and those contracts generate billions of dollars in revenues for the NFL and the team owners. Importantly, each of these companies owns and operates websites that provide the betting lines which are viewed by bettors in every state in the nation, regardless of whether the viewers in that State can legally wager on the games. For example, ESPN's "Pigskin PICK "EM" offers would -be bettors analysis by "Hector the Projector" for each game, including which team to pick with the spread….

Presumably the NFL's decision to allow ESPN and other parties with which the NFL contracts to promote gambling on NFL games reflects your belief that the value of the NFL franchise is enhanced by that programming. In short, the notion that the NFL has aggressively fought against betting on its games is belied by the very programming the NFL indirectly endorses and from which it handsomely profits.…

So, even if Simmons’ .500 record isn’t enough to doom the NFL’s case, the very fact that Simmons is picking games against the spread on the site might do them in.

Roger Goodell will now light himself on fire…

*The case actually involves NCAA, NBA, MLB, and NHL games, but I have limited the discussion to the NFL.

Monday, July 27, 2009

The Next Opponent for Forrest's Killers: A Felony Murder Charge

Death Penalty Looms as Possibility for Killers of Former Welterweight and Junior Middleweight Champion Under Georgia’s Felony Murder Laws

The emotionally fragile boxing community, still nursing its wounds from the recent untimely deaths of retired legends Alexis Arguello and Arturo Gatti, was rocked again on the night of Saturday, July 26, 2009 when 1992 U.S. Olympian, and former welterweight and junior middleweight champion Vernon Forrest was shot to death in Atlanta, Georgia after a gun battle with two individuals who reportedly robbed Forrest at a gas station. In the end, Forrest perished the way he fought; standing and trading fire like the champion that he was. Although no suspects had been apprehended as of the date of this posting, the die is already cast for the next bout of his assailants: a showdown with the People of the State of Georgia for their lives.

Georgia Law on Felony Murder and the Relevant Component Offenses

Under Section 16-5-1(c) of the Georgia Annotated Code, “[a] person commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.” Section 16-4-1(d) mandates that “[a] person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.” Under Section 16-8-41(b), armed robbery is a felony punishable “by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”

Georgia is one of about 24 states that allow prosecutors to seek the death penalty for those not directly responsible for a murder committed during the commission of a felony. Known as the “agency theory” of felony murder, it allows for co-felons and accomplices to face the same sentence as the one who caused the death of someone else during the course of another felony. The actual killer is, in short, an “agent” of the others that committed the felony alongside him and thus inextricably links them with the killing that takes place during said felony.

Georgia’s Felony Murder Rule as it Applies to Forrest’s Killers

As to the murder of Forrest, the details made public thus far suggest that the two assailants stole several items from Forrest with the use of firearms, also known as armed robbery. Armed robbery is a felony under the laws of the State of Georgia, as it is in all jurisdictions. Forrest was killed during the commission of said felony, thus a felony murder was committed. The “agency theory” of felony murder appears to be a non-issue here, as its been reported that both assailants may have opened fire on Forrest. If, however, the evidence ultimately suggests that only one assailant shot the former U.S. Olympian, the other assailant would still be on the hook for his death under the “agency theory.” Under either scenario, a conviction would mean a death sentence, life imprisonment without parole, or imprisonment for life under Georgia law for Forrest’s killers. If Atlanta prosecutors have their day in court with Forrest’s killers, therefore, the facts released thus far suggest that they will have all of the evidence that they need to score a revenge knockout for the boxing world’s latest fallen son.

Also available at: (including a legal analysis of Arturo Gatti's demise).

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP and a former law clerk of renowned New York City-based criminal defense attorney Joseph A. Bondy. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. ©

Update on Pete Rose

Late update from my initial post on reports that Bud Selig is considering reinstating Pete Rose. The updated ESPN story suggests that initial reports were overstated and that, while Selig is "seriously considering" the issue, Rose's status is not changed and Selig is not necessarily close to lifting the ban.

The updated story also quotes former Commissioner Fay Vincent making several points: 1) Rose may not get into the Hall even if he is reinstated because "[t]here is no indication that there's any great support for Pete Rose to get in the Hall of Fame"; 2) Deterrence of gambling would be seriously hampered if Rose is reinstated; and 3) One plan in the works is for Rose to be reinstated only for Hall purposes, but remaining ineligible to serve in any official function within baseball or any of its organizations.

In order: 1) This is unknowable unless we start hearing from all 65 Veterans' Committee members, but I cannot see players holding onto the same hostility about Rose's gambling and (although I have no empirical basis for this) I remain convinced he will be elected overwhelmingly if reinstated; 2) I agree that deterrence will be lost, which is something I was trying to get at in my original post; and 3) the idea of reinstatement-for-some-purposes-and-not-for-others is utterly ridiculous, both because of the double standard and deterrence gap it creates (Vincent's point) and because it is silly on its face--if Rose should be reinstated, it is because MLB considers his misconduct sufficiently behind him that he should be welcomed back into the game and if not, he should not be welcomed in the Hall.

Rose to be reinstated? Baseball and gambling

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, this after Henry Aaron spoke in support of Rose at Sunday's Hall of Fame induction. Reinstatement virtually ensures Rose's induction into the Hall, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from Hall induction any person on MLB's Permanent Ineligible List. I think the Veterans' Committee will vote him in, probably overwhelmingly; former players typically are more forgiving of player transgressions than writers.

Some random thoughts.

First, I have to get past my instinct to simply conclude that, if Bud Selig is thinking about doing this, it must be a bad idea. The timing is interesting, as this year marks the twentieth anniversary of both Rose' ban and the brief commissionership and untimely death of Bart Giamatti. Selig would be undoing the signature act of, arguably, the last strong non-owner commissioner.

Second, what does this say about our system of punishment? Rose accepted permanent ineligibility from the game and has admitted to conduct (betting on games in which his own team was involved) that, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility. But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted?

Third, what about the Black Sox? This move would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty? Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And does Selig know the Pandora's Box he may be opening? (See # 1).

After all, some of them were suspended for arguably less-serious infractions than Rose--Shoeless Joe Jackson took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixing games, etc., were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans in 1917-19. The hiring of Kenesaw Mountain Landis reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. Of course, the gambling problems continued even into the '20s, notably with the forced "resignations" in 1926 of managers (and retired greats) Tris Speaker and Ty Cobb in the wake of allegations of they fixed regular-season games. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Fourth, Buster Olney of ESPN argues that reinstatement and enshrinement does nothing to Rose's legacy one way or another; his conduct over the past twenty+ years has tarnished his reputation, although his greatness as a player remains undeniable (if too-often dramatically overstated and overrated). So this presents two questions:

1) Should Rose be inducted into the Hall? Character, sportsmanship, and off-the-field conduct are formally part of the election criteria for voters, although, as everyone so often notes, the Hall is full of racists, boozers, womanizers, and other miscreants.
2) Assuming Rose is elected to the Hall of Fame in short order, should his plaque mention the gambling and the (non-permanent) ban from the game, alongside the hits and games played? This is an argument that often was made about Rose, as well as admitted or suspected steroid users. I have not accepted the argument as to Rose, because Hall Rule 3E is clear that he cannot be voted in. But with the ban lifted and induction imminent, this is something that the Hall must address directly, given that his misconduct and punishment were not about general misbehavior (note I have not mentioned Rose's conviction and incarceration for tax evasion) but went to the heart of the rules and integrity of the game.

Bojko v. Lima: Don't Call Your Kid's Coach a Pedophile

Over on Connecticut Sports Law, Dan Fitzgerald has a really good piece on a Connecticut coach who was awarded $88,000 in damages in a libel lawsuit against a parent who defamed the coach. Dan has the details on Bojko v. Lima, a Connecticut case:

* * *

In Bojko v. Lima, Mary Anne Bojko, coach of the East Hartford High School girls’ Swim Team sued Laurie Lima, the mother of the team’s captain, Hope Lima. The dispute started with a disagreement between Bojko and Lima over a team banquet and disintegrated into Lima calling her daughter’s coach a pedophile. According to the Court’s decision, Lima didn’t stop there:

[T]he defendant embarked on an absolutely unbelievable e-mail campaign against the plaintiff in which she repeatedly used the term “pedophile,” demanded that the plaintiff be fired from her coaching position, alleged that the plaintiff was “dangerous” to children, demanded a background check on the plaintiff, demanded an investigation by the State Board of Education and an investigation by the Department of Children and Families.

During the bench (as opposed to jury) trial in which she represented herself, Lima admitted that she had no evidence that Bojko was a pedophile. The court even cited evidence that Lima’s daughter didn’t support her mother’s allegations. In an email to the school’s principal, Hope Lima wrote “I told my mom that she may have misunderstood me (or else she just likes to lie for the hell of it).”

With a complete lack of evidence supporting Lima’s claims, the Court ruled in favor of Bojko, on all of her claims: libel, intentional infliction of emotional distress, tortious intererence with business expectancy, false light invasion of privacy, and vexatious litigation (on account of Lima’s admittedly baseless counterclaim).

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To read the rest of the post, click here.

Friday, July 24, 2009

Update on MLB's Use of Genetic Testing

A brief update to my post from yesterday discussing MLB’s use of DNA testing on Latin American prospects. Jorge Arangure Jr., a senior writer for ESPN the Magazine, writes about the issue today, and notes that MLB’s Dominican operations are technically run through separate entities incorporated in the Dominican Republic.

The use of separate Dominican entities may provide MLB with an additional defense under the Genetic Information Nondiscrimination Act. Unlike the Civil Rights Act, which expressly applies to activity abroad by a foreign corporation controlled by a U.S. entity, GINA does not include such a provision. Absent an extraterritoriality provision, U.S. courts may not be willing to apply GINA to activity by a Dominican entity occurring outside of the U.S. However, it is conceivable that should the evidence reveal that MLB’s U.S. operations effectively control the Dominican entities, then a court may willing to hold the U.S. entity liable for violations resulting from the Dominican entity’s activities.

One other potential avenue for regulating MLB's use of DNA testing on Latin American prospects - should it be determined such activity is not presently within the scope of GINA - would be for Congress to amend the Act to expressly give it an extraterritorial reach similar to that of the Civil Rights Act. In a follow-up piece yesterday in the New York Times, Alan Schwarz interviewed Representative Louise M. Slaughter (D-NY), one of the initial drafters of GINA, who expressed concern over the news of MLB’s DNA testing in Latin America.

In any event, MLB’s DNA testing of Latin American prospects raises a host of interesting issues under the Genetic Information Nondiscrimination Act.

Herbstreit v. IRS

Blog Emperor Paul Caron reports on a lawsuit filed against the IRS by ESPN sportscaster Kirk Herbstreit, after the IRS denied Herbstreit's request for a $ 330,000 tax deduction for donating his house to the local fire department to burn down for training and exercise purposes. Apparently this is a common practice among people who want to build a new house on their property. The IRS claims it denied the deduction because Herbstreit retained an interest in the property--namely, the land, on which he would build a new house at some point in the future.

Money laundering in European football business

According to the Financial Action Task Force ("FATF"), an inter-governmental body whose purpose is the development and promotion of national and international policies to combat money laundering and terrorist financing, the multi-billion dollar global football sector has become a vehicle for money laundering and other forms of corruption, requiring an international response.

With the growing economic and social importance of sports and increasing profits that can be made out of sports, money now exerts a strong influence on the world of sports. Sports governing bodies and (inter-) national authorities recently expressed their concerns on the inflow of dirty money into the sporting industry. The EU White Paper on Sports already stated in 2007 that sport is confronted with new threats such as money laundering.

FATF focused its study especially on the football sector. Based on responses to a questionnaire from government and football authorities in 25 countries, more than 20 cases of football-related money laundering were detected. The cases ranged from the smuggling of large amounts of cash derived from apparently illegal transactions to more complex operations.

Several combined factors make football an attractive sector to criminals. Football is especially vulnerable because of:
  • its structure: the football market is easy to penetrate, has complicated networks of stakeholders, the management often lacks professionalism and clubs have a diversity of legal structures.
  • its finance: considerable sums are involved, the irrational character of the sums involved and the unpredictability over future results and the financial needs of football clubs
  • its culture: social vulnerability of (especially younger) players, the societal role of football (people are reluctant to shatter sports' illusion of innocence) and the non-material rewards (eg the status which criminals could obtain via football outside the criminal world).

The study furthermore revealed that a variety of money flows involving various financial transactions increase the risk of money laundering. These are related to ownership of football clubs, the transfer market and ownership of players, betting activities and image rights, sponsorship and advertising arrangements.

Other cases showed that the football sector is used as a vehicle for evolving criminal activities such as trafficking in human beings, corruption, drug trafficking and tax crime. In other words, a lot to do for the policy makers, sports organizations and clubs to prevent the increasing activity of money laundering in the sports industry.

Thursday, July 23, 2009

Opinio Juris Ranks Sports Law Blog 8th "Best Read" Law Professor Blog

Roger Alford of Pepperdine University School of Law and Opinio Juris looks at data originally compiled by Paul Caron of the University of Cincinnati College of Law and Tax Prof Blog on average visit length of the 35 most visited law professor blogs and finds that Sports Law Blog is the 8th best-read law professor blog (as Howard noted in June, we are 24th in terms of daily hits).

Basically, while other leading law professor blogs may get more clicks, people who click on our blog tend to stay on a bit longer.

I think I can speak on behalf of all of us on the blog in saying that we really appreciate you visiting and reading our stuff.

As some of you know, Sports Law Blog began in 2003. At that time, Greg Skidmore--the blog's creator, founder, and, for its first nine months, sole contributor--was a student at Harvard Law School (Greg is now an appellate litigator at Kirkland & Ellis in D.C.). To see our blog's original post, click here -- it begins with the phrase "Since there is no such thing as 'Sports Law'" . . . and that's how Sports Law Blog began.

MLB Confirms Use of Genetic Testing on Latin American Prospects

I would like to thank Professor McCann and the rest of the team at Sports Law Blog for inviting me to participate here.

Yesterday, the New York Times published an interesting article by Michael Schmidt and Alan Schwarz, reporting that Major League Baseball has used genetic testing to verify the identity and age of prospects from the Dominican Republic, including 16-year-old Miguel Sano (pictured). In recent years, MLB teams have discovered that a number of Latin American prospects have engaged in identity and age falsification to obtain large signing bonuses. For instance, just last week it was reported that MLB’s Department of Investigations determined that recently-signed New York Yankees prospect Damian Arredondo had falsified his age and identity. Meanwhile, in February the Washington Nationals learned that their 19-year-old prospect Esmailyn “Smiley” Gonzalez – signed by the club in 2006 for $1.4 million – was in reality 23-year-old Carlos David Alvarez Lugo.

In order to combat identify and age falsification, the New York Times reports that MLB confirms it has, “in very rare instances and only on a consensual basis,” conducted DNA tests on prospects from the Dominican Republic. While the DNA tests themselves do not verify a prospect’s age, they allow MLB to confirm a prospect’s identify by proving that he is in fact related to his parents. MLB employs bone-scanning tests to verify a prospect’s alleged age.

MLB’s use of such DNA tests carries with it implications under the Genetic Information Nondiscrimination Act of 2008, legislation which becomes effective this November. The Act – which may apply to non-United States citizens who are employees (including applicants) of a U.S. employer – forbids employers from refusing to hire, or discharging, any employee on the basis of genetic information. More significantly, the legislation also forbids employers from requesting genetic information from employees, except when “the employee provides prior, knowing, voluntary, and written authorization.”

Because the Genetic Information Nondiscrimination Act does not take effect until November, MLB should not face any liability under the Act for its prior DNA testing of Latin American prospects. Going forward, however, the Act may prevent MLB from requesting genetic information from Latin American prospects. While the Act does provide an exception for genetic information provided consensually by the employee, this exception seemingly applies only when the employee provides his or her consent prior to a request for the information by the employer. Therefore, unless a Latin American prospect volunteers to undergo DNA testing himself, prior to any request by MLB, the league will be unable to legally obtain genetic information from the prospect. Of course, prospects may in fact begin to voluntarily offer to undergo DNA testing, in order to make themselves more attractive to MLB teams. It will be interesting to watch how both sides react once the Genetic Information Nondiscrimination Act becomes effective in November.

Update (1:55pm): One potential wrinkle in applying the Genetic Information Nondiscrimination Act to MLB's DNA testing activities in the Dominican Republic which I neglected to note earlier is whether the foreign-born prospect should be considered an "employee" under the Act. Specifically, the term "employee" is defined in the Act to include anyone falling within the definition of "employee" provided by section 701(f) of the Civil Rights Act of 1964. In turn, this section of the Civil Rights Act defines "employee" without respect to U.S. citizenship, with one noteworthy exception. Specifically, "[w]ith respect to employment in a foreign country, such term includes an individual who is a citizen of the United States." Therefore, whether the Genetic Information Nondiscrimination Act applies to MLB's Dominican operations may hinge on whether the prospect is being considered for "employment in a foreign country" or for employment in the United States. If the former, then the Latin American prospect may not qualify as an "employee" under the Act. If the latter, then the Act may apply.

Whether the prospect is being considered for employment in a foreign country may be a difficult question to answer. Many MLB teams maintain Dominican baseball academies, to which their recently-signed Latin American prospects may be assigned. However, MLB teams sign these Latin American prospects - especially the high profile prospects most likely to be the subject of DNA testing - with the intent of eventually bringing them to the United States, sometimes within a year or two of their signing. Whether this intent should be sufficient to bring the Latin American prospects within the scope of the Act is unclear, but an interesting question.

More on O'Bannon v. NCAA

Yesterday I linked to my SI column on O'Bannon v. NCAA.

This case is generating a great deal of attention. Here are a variety of commentaries from different perspectives:
  • David Moltz, Inside Higher Ed, The Right Profile (Moltz interviews Sonny Vaccaro and Duke law professor Paul Haagen)
  • William C. Rhoden, New York Times, A Lasting Image: Standing Up to the NCAA (Rhoden interviews Richard Southall of the College Sport Research Institute -- Richard has guest blogged here before and we've talked his important work)
Also, Lance Pugmire of the Los Angeles Times has a thoughtful feature article on Sonny Vaccaro, who is an unpaid consultant for O'Bannon's legal team (meaning that he has no financial stake in the case). In a USA Today article, O'Bannon discussed being bothered by the NCAA's recent business ventures that included his image and likeness but that he had not considered suing until he was approached by Sonny and his wife and business partner, Pam.

Wednesday, July 22, 2009

Can Michael Vick Sue The NFL For Reinstatement?

Yesterday, the Associated Press (via reported that NFL Commissioner Roger Goodell plans to move slowly on whether to reinstate quarterback Michael Vick into the league. The implication here is that Goodell has full discretion over the length of player suspensions. However, I believe the Associated Press fails to consider the antitrust limits to Goodell's purported authority.

In a recent law review article entitled "Are Commissioner Suspensions Really Any Different From Illegal Group Boycotts," I argue that the 3rd, 6th, 8th and D.C. Circuits might find Goodell's attempt to indefinitely suspend Michael Vick to violate Section 1 of the Sherman Act. This is because the NFL Personal Conduct Policy serves as an agreement amongst the 32 independently owned NFL-clubs to boycott a particular player. At the same time, the NFL Personal Conduct Policy seems to harm consumers by taking away their ability to voice a preference for football games that contain Michael Vick.

In antitrust terms, this is essentially the Spencer Haywood or Maurice Clarett case all over again, but with "NFL Personal Conduct Policy" replacing "League Age Requirement" as the purportedly anticompetitive conduct.

Indeed, player suspensions today are common in sports. However, the NFL's attempt to enforce its Personal Conduct Policy is different in three ways: (1) the NFL Personal Conduct Policy leads to player suspensions for more than just a de minimis number of games; (2), the NFL Personal Conduct Policy does not involve conduct so directly related to the existence of a sport that it is needed to make the sports product viable; and (3) the NFL Collective Bargaining Agreement ("CBA") does not specifically empower the league commissioner to suspend players for off-the-field wrongdoing (albeit, the NFL CBA more generally allows the commissioner to suspend players for conduct "detrimental to the League or professional football").

Of course, this does not mean that the Atlanta Falcons will be stuck with Michael Vick at quarterback. Indeed, in my article, I propose four legal, and I believe more appropriate ways, for the NFL clubs to address player misconduct: (1) individual teams can release players for breach of the morals clause in their contracts; (2) the NFL teams can petition Congress to publicly regulate pro football player eligibility; (3) the NFL teams could petition Congress for a limited antitrust exemption to regulate player eligibility; or (4) the NFL teams could collective bargain with the NFL Players Association to add the NFL Personal Conduct Policy directly into the CBA.

A fifth and final way that the NFL teams might become able to ban players from the league would be to convince the Supreme Court toconstrue the NFL as a single-entity for all purposes. Some, such as ESPN's Lester Munson, are fearful that such "Armageddon" might happen. Meanwhile, others at Sports Law Blog find a broad-based single-entity ruling in favor of the NFL less likely.


For further discussion of these issues, please see Marc Edelman, Are Commissioner Suspensions Really Any Different From Illegal Group Boycotts: Analyzing Whether The NFL Personal Conduct Policy Illegally Restrains Trade, 58 Catholic University Law Review 631 (2009).

Tuesday, July 21, 2009

O'Bannon v. NCAA: Should Former Student-Athletes be Paid for the NCAA's use of their Images and Identities?

A few hours ago, former UCLA basketball star Ed O'Bannon, on behalf of a class of thousands of former men's basketball and football players, filed a class action lawsuit in the U.S. District Court for the Northern District of California over the NCAA's use and license of former student-athletes' identities in various commercial ventures. The claim is based primarily on Section 1 of the Sherman Act and the right of publicity.

O'Bannon has put together a high-profile legal team to represent him. His lead counsel is Michael Hausfeld, who successfully represented victims of the Holocaust whose assets were wrongfully retained by private Swiss banks during and after World War II. Hausfeld will be aided by several attorneys from Boies, Schiller & Flexner, a law firm which represented former Vice President Al Gore in Bush v. Gore, and by basketball legend and player rights’ advocate Sonny Vaccaro, who has been retained by Hausfeld LLC as an unpaid consultant (meaning he has no financial stake in the case). It stands to reason that these attorneys would only agree to represent O’Bannon if they were confident that his claims will survive the NCAA’s motions to dismiss and go to trial.

I have a column on about this lawsuit. An excerpt is below.

* * *

O'Bannon v. NCAA stems from a series of documents Division I student-athletes are required to sign as part of their participation in college sports. Form 08-3a (the "Student-Athlete" statement) is one such document. Among other conditions, it specifies, "You authorize the NCAA . . . to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs." By signing the statement, student-athletes relinquish in perpetuity all future rights in the NCAA's licensing of their images and likenesses. O'Bannon claims that student-athletes -- some of whom are younger than 18 -- effectively have no choice but to sign, since they would otherwise be deemed ineligible to play and would risk losing their athletic scholarships.

In the NCAA's view, however, these documents promote the NCAA's core mission: the integration of intercollegiate athletics into higher education and the promotion of student-athletes' educational experiences. Along those lines, as a voluntary organization comprised primarily of colleges and universities, the NCAA tends to frown upon professional and other remunerative endeavors pursued by student-athletes.

* * *

In assessing O'Bannon's claims, a court will consider the extent to which student-athletes possess a real "choice" when presented with the Student-Athlete statement and similar documents. On that front, O'Bannon appears emboldened by NCAA policies on student-athletes' access to legal counsel. According to O'Bannon, neither NCAA officials nor college athletic officials advise student-athletes that they can seek legal advice in connection with the release of future compensation rights. Particularly given the lack of "life experience" of most incoming student-athletes, such a policy may be viewed as arguably exploitative and also one that creates a disparity in bargaining power.

* * *

To read the rest, click here.

When should Congress get involved with pro sports, Part II?

Back in June, Mike reported on the letter from U.S. Congressman Steve Cohen urging NBA Commissioner and NBAPA Executive Director Billy Hunter to eliminate the league's age limit. I responded by wondering under what circumstances Congress should become involved with issues relating to governance and operations of sports and leagues. Yesterday, Mike reported that Cohen has sent another letter on the subject, this one to NBA President Joel Litvin.

So I am going to be repeat my question today: When is it acceptable or appropriate for Congress (or individual members of Congress) to become involved with issues relating to governance and operations of sports and leagues? Congress was roundly criticized (and I joined in) for the steroids hearings. And Orrin Hatch has been the target of jokes because of his call for hearings about the BCS, after Utah was kept out of the BCS. All such actions are widely met with cries of "worry about the American people, not about college football." On the other hand, the response to Cohen's letters has been positive, at least around here (unless it is only because Rep. Cohen cited Mike's article). And, as I wrote yesterday, the alleged parade of horribles from a bad ruling in American Needle could be undone by a Congress willing to step-in to protect fans and consumers.

So where is the line between Congress stepping into a matter of legitimate federal concern and "don't they have bigger things to worry about"? Is it when members of the public are genuinely being injured, as by the age limit (although the number is incredibly small) or by a Court decision that gave the leagues too much power, while such harm (beyond psychic disappointment) is missing as to the BCS? Is it a difference between internal league matters and those touching on people outside the league? Is it the difference between acting towards the undefined "integrity of the game" (e.g., steroids) as opposed to dealing with the broader business of sports (where sports are not much different than other entities regulated by federal law)? Of course, federal law does speak to things such as gambling, which is all about the integrity of the game.

So is there any metric to guide the actions of legislators?

Monday, July 20, 2009

Congressman Steve Cohen's Letter to NBA President Joel Litvin

Last month, I blogged about U.S. Congressman Steve Cohen requesting that NBA commissioner David Stern and NBPA executive director Billy Hunter eliminate the NBA's age limit, which requires that a player be 19 years old plus one year removed from high school in order to be eligible for the NBA Draft (the rule was negotiated in 2005; previously, players could join the NBA right after finishing high school). The NBA and NBPA will be negotiating a new CBA in the near future and the age limit will likely be a source of tension between the two bargaining units.

This afternoon, Congressman Cohen sent a letter to NBA President Joel Litvin expressing his concern that players are harmed by the rule. The Congressman also requested that he meet with Litvin and Commissioner David Stern. Here's an excerpt from the AP Story:

* * *

In a letter sent to Litvin Monday, Cohen maintained that players should have the "economic freedom'' to make their own decisions. He said he understood that the policy may help the league in its scouting and hiring decisions.

"However, my concern is that the players who must abide by this rule are harmed by the league's pursuit of these business interests,'' the congressman wrote, adding that the "age discrimination'' prevents players from supporting their families.

The policy increases the chance that such players will be injured before getting the chance to play in the NBA, he added.

"I am concerned that the careers of young men who possess all the skills necessary to succeed in the NBA,'' Cohen wrote, "may be sacrificed in favor of the bottom lines of the teams on which they hope to play.''

Cohen, a member of the House Judiciary Committee, asked for a meeting with Litvin and Commissioner David Stern. Cohen has said that that he'd consider both hearings and legislation if the requirement remains.

* * *
I'm honored that Congressman Cohen would cite my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft in his letter to Litvin. It will be interesting to see what happens. In my essay on Judge Sotomayor I discuss a possible legal challenge to the NBA's age limit.

Sunday, July 19, 2009

Munson on American Needle

Lester Munson of ESPN has a lengthy column on American Needle v. NFL (see here, here, and here). Among the many law professors he speaks with is our own Barry Law School-bound Marc Edelman.

I like Munson's stuff. But this piece suffers from a number of weaknesses that plague much popular reporting and conversation on the judicial system. I confess up front that some of this is nitpicking, but it goes to some pet peeves.

First, the piece makes it sound as if whatever the Court says in this case will be the final word on single-entity status. But the antitrust laws are statutory, so Congress always can undo whatever the Court does. And while such statutory or legislative overrides" are relatively rare (witness the many started-but-failed proposals to overturn Federal Baseball Club), the very characteristics that bring the case so much attention in the Court make it a likely candidate for override, depending on what the Court does. Prediction: If the Court holds that the NFL (and by logical extension, all other professional leagues and probably the BCS) is a single entity for Sherman Act purposes, given the dramatic consequences for players and fans described in the article, Congress will act to undo the decision very quickly and across party lines.

Now perhaps the judicial-legislative connection is too much legal detail for a MS(S)M piece. But Munson spends a lot of time spinning out the parade of horribles if the Court adopts the single-entity rule: Strikes, $ 300 team jerseys, rigid league-wide salary scales for players and coaches, the end of individual team broadcasts. But those horribles would not happen because Congress could (and I believe would) step-in (put another way, they only happen if Congress does nothing). That was worth mentioning.

Second, the piece makes what I think is a somewhat lazy move in counting noses (although he cites to "experts," presumably law professors, in doing so): He predicts that Sonia Sotomayor, the Court's newest member once she is confirmed next month, will side with the players, based on her ruling as a district court judge in Silverman v. MLB Player Relations Comm. in 1995, which functionally ended the baseball strike (See Mike's take on the case). This strikes me as silly for a number of reasons. The baseball-strike case had nothing to do with the single-entity rule or the antitrust laws; it was a case under the National Labor Relations Act. Judges are not that result-oriented that we can say that one decision that went against the league under a different statute in a different factual situation is any sort of indicator that she always sides with the players over the leagues. Plus, what about her joining the panel opinion upholding the NFL's age limit in Clarett, which actually might be a closer analogue--at least that case arose under the same law.

Third, Munson spends three paragraphs giving the resumes of the "all-star team of attorneys" that players' unions have hired to litigate the case before the Supreme Court--all from impressive schools, former Supreme Court clerks, and experienced Supreme Court litigators--to illustrate that there should be no doubt how significant this case is and how seriously the Unions are taking it. So, if it were a case before the Court that the Unions believed was less significant or less serious, they would have hired less experienced or competent attorneys? Come on; the case is before the Supreme Court of the United States, so by definition interested parties and entities will seek out top Supreme Court litigators, most of whom went to top schools, clerked for the Court and/or worked in the Solicitor General's Office, and have experience before the Court. That is true regardless of whether the case is the most signficant antitrust case ever or something more routine. This is an example of a fact that is not remotely newsworthy.

Again, I recognize that most of this is my personal annoyances that I get to spread to unsuspecting readers because I happen to write on a blog; fifteen years ago, I would have complained about it to my wife or over lunch at work. Still, these details bothered me for the same reason the Sotomayor hearings last week bothered me: If we are going to have a public discussion of law in which we hope to educate the public, let's try to get it right.

Thursday, July 16, 2009

David Cone on Judge Sotomayor

Former MLB pitcher David Cone testified today before the Senate Judiciary Committee on the nominate of Sonia Sotomayor to the Supreme Court. The video of the full day can be found on the Committee Website. Cone's statement, discussing Sotomayor's decision in the 1995 baseball labor dispute that essentially ended the 1994 strike (and, in Cone's words, "saved baseball") begins at 461:30.

I would argue that calling Cone to testify was wrong for the same reason I thought it was wrong to call New Haven firefighter Frank Ricci to testify. Successful or unsuccessful litigants cannot really tell us anything meaningful about the judge's legal ability or qualifications to be on a higher court. Cone thinks Sotomayor is great because she agreed with the players' union's claims; Ricci not so much, because she disagreed with his claims.

Threat of Title IX Lawsuit Causes Florida Athletic Association to Reverse Course

State high school athletic officials in Florida recently exempted the lucrative sport of football from widespread scheduling cuts that were aimed at easing the financial burden on schools. However, under threat of a Title IX federal lawsuit, yesterday the Florida High School Athletic Association reversed course and abandoned the scheduling cuts to other sports. The lawsuit claimed that exempting football violated gender-equity laws. Katie Thomas of the New York Times has the scoop ("Florida Drops Budget Plan That Favored Prep Football"). Thomas interviewed my colleague and Title IX expert, Nancy Hogshead-Makar, who represented the plaintiffs in the lawsuit and stated her case in front of the FHSAA board at an emergency meeting two days before the parties were to appear in court. Congratulations, Nancy!

Wednesday, July 15, 2009

Law Review Essay on Judge Sotomayor and Sports Law

Connecticut Law Review will be publishing an essay I've written on Judge Sotomayor and two of her most important sports law decisions: Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football League.

The essay also explores how Judge Sotomayor’s opinions and judicial philosophy may impact other emerging sports law disputes, including whether a player could successfully challenge the NBA's eligibility rule.

Here is an excerpt:

* * *

Politicians and commentators are vigorously debating the judicial philosophy of federal appeals Judge Sonia Sotomayor, whom President Barack Obama has nominated to succeed retiring Justice David Souter on the United States Supreme Court. They are pouring through Judge Sotomayor’s opinions, speeches and other writings, examining and sometimes cherry-picking her words and expressions. Competing sets of beliefs, ideas, and attitudes will gradually be offered to explain Judge Sotomayor’s legal reasoning.

Critics of Judge Sotomayor have already championed an alleged weakness: she crafts her opinions to advance progressive agendas, with wavering adherence to actual law. Proponents of this viewpoint cite President Obama’s comment that he selected Judge Sotomayor partly because of her “compassion,” with the insinuation, in their view, that she bends fixed rules in order to aid disadvantaged litigants. Still others chastise the quality of her logic as overlooking or obscuring substantive legal issues. At their core, these criticisms attempt to impugn Judge Sotomayor as unfit for the Court.

As this Essay explores in Parts I and II, such criticisms are countered by Judge Sotomayor’s role in resolving two notable sports law disputes. In assessing whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football League (“NFL”) draft, Judge Sotomayor invoked traditional, arguably inflexible, applications of federal labor law. In fact, from the lens of each case’s least advantaged party, her opinions may have seemed bereft of “compassion” . . .

* * *

Hope you have a chance to read a draft of the piece on SSRN.

MLB Agents Want Union To Take More Active Stance Against Collusion

With MLB union leader Donald Fehr planning to soon step down from his post, several MLB player agents are encouraging his likely successor, Michael Weiner, to take a more active stance against player collusion.

Unlike most other sports leagues, Major League Baseball has a long and well-documented history of colluding against its players' rights. I provide a detailed account of Baseball's troubling history of collusion in my 2008 Wayne Law Review article, "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones." This article discusses many topics, including how Baseball's neutral arbitrator, George Nicolau, found Commissioner Bud Selig directly involved in collusion during the 1980s. (see pages 619-20).

With respect to the game's newest collusion allegations, concern of such behavior first surfaced during the 2007-08 off-season when Bonds's agent Jeff Borris announced that he believed the reason why Bonds did not have a single contract offer was collusion. After reviewing the available evidence, the MLBPA announced in October 2008 that it had made a preliminary finding of collusion. However, rather than file a traditional labor grievance against the MLB club-owners, the union instead attempted to resolve the matter through private negotiation.

Thus far, the MLBPA's attempts to privately negotiate have not proved fruitful. Barry Bonds still has not received a single contract offer -- not even at the league minimum salary of $410,000. In addition, a growing number of veteran players have expressed a similar concern that they too have been collusion victims.

While the MLBPA has broad discretion to determine when, if at all, to file a formal collusion grievance, like any union, it is bound by its duty of fair representation. This means that the MLBPA cannot act in an arbitrary, discriminatory, or bad-faith manner against any of its members. Union membership includes even those who have opted out of joint licensing programs, such as Barry Bonds.

Refusing to file a collusion grievance, even after reaching a informal finding of wrongdoing, might place the MLBPA at some risk of facing a claim from Bonds for breach of the duty of fair representation. This risk, in essence, might eventually pressure the MLBPA to file a collusion grievance, presuming their talks with the MLB club-owners do not reduce union concerns of wrongdoing. For these reasons, I fully expect the MLBPA to begin more aggressively addressing these recent concerns of collusion. Hopefully, these talks will lead to some candid answers for both those inside Baseball, and the gane's fans.

Monday, July 13, 2009

Ryan Church - Jeff Francoeur Trade - Salary Arbitration

The Ryan Church - Jeff Francoeur trade between the Mets and the Braves on Friday involved two players among the 111 who filed for salary arbitration prior to this season. The Mets also received $270,218 to equalize the salaries. There is already plenty to read on the Internet about the deal, but since my contributions to the Sports Law Blog deal with salary arbitration, I will offer a bit of information and place the rest in comments if anyone is interested in further discussion.

Francoeur and the Braves swapped figures earlier this year while Church and the Mets agreed to a deal before exchanging numbers. Francoeur was offered $2,800,000, and he asked for $3,950,000. The two parties settled at the midpoint of $3,375,000. The raise amounted to 633.70% increase. Ryan Church signed for $2,800,000 for this season. The gap between the two salaries is $575,000. Church made $2,000,000 in 2008 while Francoeur played for $460,000 in Atlanta. Church’s salary increase was 40%. Francoeur’s 80 games played in 2005 beginning on July 7 did not place him in the Super Two category for 2008.

The few data elements listed above raise at least two points. The first is the difference in percentage increases. Many baseball executives dislike the system and argue that the figures produced for the players in their arbitration years drive salaries up more than salaries negotiated for free agents. Francoeur’s promotion in July of 2005 instead of earlier that season also kept him from becoming eligible for arbitration one year earlier. Management’s ability to control how soon a player becomes eligible is one of the tools they have to balance the overall salary structure that they manage.

The system of arbitration in baseball has not changed much in 35 years since first introduced in 1974. As we get closer to negotiating a new basic agreement, it will be interesting to see if any changes are seriously considered.

Sunday, July 12, 2009

More on the umpire-judge analogy

Bruce Weber (author of the outstanding story of the umpiring profession, As They See 'Em) has a piece taking down the judges-as-umpires analogy. What does not come up in the piece is the point that, not only does the analogy misconstrue what judges do, but it denigrates what umpires do--the amount of discretion, perspective, purposivism, and judgment involved in umpiring.

Nevertheless, expect to hear a lot of this inane talking point in the coming weeks.

Friday, July 10, 2009

Call for Papers: Third Annual Scholarly Colloquium on Intercollegiate Athletics

Marquette law professor Matt Mitten, who is also Director of the National Sports Law Institute, passes along information on a call for papers:

The Third Annual Scholarly Colloquium on Intercollegiate Athletics

In Conjunction with the NCAA Annual Convention

January 12th and 13th 2010

Atlanta, Georgia

The third annual Scholarly Colloquium on Intercollegiate Athletics will be held on January 12th and 13th, 2010 in conjunction with the NCAA Annual Convention in Atlanta, Georgia. The theme for this year’s colloquium is “College Sports in Recessionary Times: Assessing Challenges & Opportunities.” The conference will consist of keynote presentations by Rodney Fort (University of Michigan), Amy Perko (Knight Commission), Richard Lapchick (University of Central Florida), and Andrew Zimbalist (Smith College) and two formal reactions to each keynote, in addition to a number of refereed free papers.

Proposals for refereed papers should deal closely with issues related to the conference theme of “College Sports in Recessionary Times.” In order for your paper to be considered for one of the free paper sessions, please submit by e-mail attachment an abstract of no more than 300 words to John Thelin at

Research papers can be related to sport in general (as long as there are clear implications for college sport) or intercollegiate athletics specifically, with connection to the conference theme of “College Sports in a Recessionary Time.” Your scholarship may be based in the sciences, social sciences, economics, humanities, or any number of professional fields related to intercollegiate athletics.

The deadline for proposal submission is October 1, 2009. Individuals will be notified of the results of the review process in early November 2009.

Thursday, July 9, 2009

More on the Pat and Kevin Williams Suspensions and the Star Caps Saga

As you might recall, five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games last year after testing positive for bumetanide, a diuretic that can be used to mask the presence of steroids. The players claimed that they inadvertently ingested the bumetanide when they took StarCaps, an over-the-counter weight-loss supplement. Bumetanide is not listed as an ingredient in StarCaps, but the players proved that bumetanide was present in the StarCaps they consumed.

The players lost their internal appeal to the NFL, and after a series of legal maneuverings in state court, the players challenged the suspension in federal court in Minnesota. Judge Paul Magnuson granted a preliminary injunction blocking the suspensions until a full trial could be held. That trial was scheduled for June 15th in St. Paul, Minnesota. In late May, however, Judge Magnuson ruled on the parties’ summary judgment motions. Judge Magnuson rejected most of the players’ arguments on preemption grounds, but remanded the players’ state law claims so that a Minnesota state court determine whether the NFL’s drug policy violates Minnesota state law (the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) and the Minnesota Consumable Products Act (CPA)).

Today, that Minnesota state court—Hennepin County District Judge Gary Larson— issued a temporary restraining order to prevent the NFL from suspending the WIlliamses or from subjecting them to “reasonable cause” drug testing until the completion of a trial on the merits. As I discussed here, the NFL does have a plausible argument that their policy complies with Minnesota state law. And, Judge Larson was less than enthusiastic about the chances of the Williamses winning on the merits, noting that they “face some obstacles in overcoming issues of fact to prevail on their statutory claims,” and conceding only that the Williamses had made “at least some showing as to the likelihood of prevailing on the merits.” Nevertheless, Judge Larson granted the restraining order because of the irreparable harm the Williamses would suffer if they were not permitted to play. Judge Larson noted that “[c]ourts have found that the loss of NFL playing time is sufficient to constitute irreparable harm,” and that in this case, “because the NFL playing season is relatively short, [the Williamses] would suffer a significant loss of playing time without the TRO."

The NFL, of course, hopes that Judge Larson never gets to reach the merits of the case. Instead, the NFL’s primary (and strongest) argument is that the state law claims are preempted and should not even be considered by the state court. In short, the NFL is arguing that federal labor law permits the NFL and the NFL Players Association to maintain a national drug policy that applies equally to all 32 NFL teams and their employees throughout the United States. The NFL policy is designed to protect its employees and sets up procedures to ensure safe and fair drug testing. Thus, the NFL is arguing that any suits brought under state laws designed to provide similar protection for employees—such as DATWA and CPA— should be preempted.

The NFL therefore filed an appeal with the Eighth Circuit seeking to overturn Judge Magnuson’s decision to remand the state claims back to Judge Larson. The NFL has also asked Judge Larson to stay his TRO (and the entire state court proceeding) until the Eighth Circuit has ruled on the NFL’s appeal. In other words, the NFL is asking Judge Larson to wait to rule on this case until the Eighth Circuit has decided whether or not Judge Larson can even consider the case. In today’s order, Judge Larson agreed to hold a hearing to determine the appropriateness of a stay on July 22, 2009.

More to come as this case unfolds…