Wednesday, March 31, 2010

NASCAR Continues to Go its own Way

Just as the NHL and the other big 3 professional sports leagues continue to crack down on athlete misconduct on and off the field, NASCAR seems to be headed in the opposite direction. The NHL now forbids blindside hits to the head, and the NFL forbids almost any hit to the quarterback, but NASCAR has decided that it is permissible for one driver to intentionally crash his car into another driver during a race. I have a new column up on the Huffington Post that compares NASCAR's new (or reborn) "have it and have a good time" policy with the safety/image-first policies of the big 4 pro sports leagues.

Here's an excerpt:

Of course, not everything is off limits. While it may soon be a fineable offense to cough on or near a quarterback in the NFL (we don't want Tom Brady getting a cold, do we?) the NHL still tolerates (if not embraces) fighting. We can quibble with the NHL's decision to allow the fights, but we can understood why they made it--hockey fans love to see fights, and it's not so bad if the players beat on each other every now and then....But, it is a little hard to understand the latest ruling by NASCAR.

You can find the full column here. You can also follow me on twitter here.

Tuesday, March 30, 2010

New Sports Law Scholarship

Recently published scholarship includes:
Douglas E. Abrams, Sports in the courts: the role of sports references in judicial opinions, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2010)

Roger I. Abrams, Sports arbitration and enforcing promises: Brian Shaw and labor arbitration, 20 MARQUETTE SPORTS LAW REVIEW 223 (2009)

Timothy S. Bolen, Note, Singled out: application and defense of antitrust law and single entity status to non-team sports, 15 SUFFOLK JOURNAL OF TRIAL & APPELLATE ADVOCACY 80 (2010)

Christopher B. Carbot, Comment, The odd couple: stadium naming rights mitigating the public-private stadium finance debate, 4 FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW 515 (2009)

Walter T. Champion, Jr., “Mixed metaphors,” revisionist history and post-hypnotic suggestions on the interpretation of sports antitrust exemptions: the Second Circuit’s use in Clarett of a Piazza-like “innovative reinterpretation of Supreme Court dogma,” 20 MARQUETTE SPORTS LAW REVIEW 55 (2009)

Josh Chetwynd, Play ball? An analysis of final-offer arbitration, its use in Major League Baseball and its potential applicability to European football wage and transfer disputes, 20 MARQUETTE SPORTS LAW REVIEW 109 (2009)

John D. Colombo, The NCAA, tax exemption, and college athletics, 2010 UNIVERSITY OF ILLINOIS LAW REVIEW 109

Ed Edmonds, A most interesting part of baseball’s monetary structure - salary arbitration in its thirty-fifth year, 20 MARQUETTE SPORTS LAW REVIEW 1 (2009)

Stacey B. Evans, Sports agents: ethical representatives or overly aggressive adversaries?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 91 (2010)

Mathieu Fournier & Dominic Roux, Labor relations in the National Hockey League: a model of transnational collective bargaining?, 20 MARQUETTE SPORTS LAW REVIEW 147 (2009)

Lloyd Freeburn, European football’s home-grown players rules and nationality discrimination under the European Community Treaty, 20 MARQUETTE SPORTS LAW REVIEW 177 (2009)

James Halt, Comment, Where is the privacy in WADA’s “whereabouts” rule?, 20 MARQUETTE SPORTS LAW REVIEW 267 (2009)

Ron S. Hochbaum, Comment, “And it only took them 307 years”: ruminations on legal and non-legal approaches to diversifying head coaching in college football, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 161 (2010)

Kristen E. Knauf, Sports law in law reviews and journals (index), 20 MARQUETTE SPORTS LAW REVIEW 299 (2009)

Erick S. Lee, A perception of impropriety: the use of package deals in college basketball recruiting, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL59 (2010)

Michael A. McCann, American Needle v. NFL: an opportunity to reshape sports law, 119 YALE LAW JOURNAL 726 (2010)

Alex B. Porteshawver, Comment, Green sports facilities: why adopting new green-building policies will improve the environment and the community, 20 MARQUETTE SPORTS LAW REVIEW 241 (2009)

Michael J. Redding & Daniel R. Peterson, Third and long: the issues facing the NFL collective bargaining agreement negotiations and the effects of an uncapped year, 20 MARQUETTE SPORTS LAW REVIEW 95 (2009)

Nicholas J. Rieder, Book note, reviewing Don Wollett, Getting on Base: Unionism in Baseball, 20 MARQUETTE SPORTS LAW REVIEW 291 (2009)

David L. Snyder, Automatic outs: salary arbitration in Nippon Professional Baseball, 20 MARQUETTE SPORTS LAW REVIEW. 79 (2009)

Jonathan Stensvaag, Note, English-only rules: Title VII, Title II, and the Ladies Professional Golf Association’s proposed English-only rule, 13 JOURNAL OF GENDER, RACE & JUSTICE 241 (2009)

Maureen A. Weston, Simply a dress rehearsal? U.S. Olympic sports arbitration and de novo review at the Court of Arbitration for Sport, 38 GEORGIA JOURNAL OF

The Scope of MLB's Antitrust Exemption

With Major League Baseball's Opening Day less than a week away, I thought now would be an appropriate time to mention my new article considering the scope of MLB's antitrust exemption, Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, slated for publication later this year in the U.C. Davis Law Review.

While baseball's exemption from antitrust law is generally well established, lower courts have struggled to define the boundaries of the exemption following the Supreme Court's 1972 decision in Flood v. Kuhn. As detailed in my article, the majority of courts considering the exemption's scope post-Flood have simply held that the "business of baseball" is exempt from antitrust law without providing any further guidance regarding which specific activities are within the exempted business. In contrast, some courts -- most notably the court in Piazza v. Major League Baseball, 831 F. Supp. 420, 436 (E.D. Pa. 1993) -- have adopted an extremely narrow view of the exemption, limiting it simply to MLB's historic reserve clause, the only restraint at issue in Flood. Finally, two courts -- Postema v. National League of Professional Baseball Clubs, 799 F.Supp. 1475 (S.D.N.Y.1992) and Henderson Broadcasting Corp. v. Houston Sports Assoc., Inc., 541 F.Supp. 263 (S.D.Tex. 1982) -- have taken a different approach by limiting the baseball exemption to only the sport's "unique characteristic and needs," based on a passage in the Flood majority opinion.

In my article, I set aside the general policy arguments supporting or (more commonly) opposing the baseball exemption, and instead examine the scope of the exemption from a purely doctrinal perspective. My article rejects all three of the existing judicial demarcations as being either too broad and vague (in the case of the majority rule), or inconsistent with the Supreme Court's precedent (in the case of the two minority approaches). Instead, I argue that the often overlooked focus of the Supreme Court's majority opinions in Federal Baseball Club of Baltimore and Toolson -- namely the specific business of providing baseball entertainment to the public -- provides a more appropriate standard for future courts to apply. My article concludes by applying this proposed standard to a variety of baseball-related commercial activities, differentiating between those activities which are and are not properly exempt from antitrust law under my interpretation of the baseball exemption.

The article is available here. Any comments or suggestions would be appreciated.

Monday, March 29, 2010

Taxing professional athletes

The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee. Proceeds from the tax apparently go to the municipality to fund various public parks/recreation projects. Interestingly, the NFL is exempted from the tax because the league had an existing rule that would penalize any state that attempted to impose such a tax. Minor league players are exempted as well (the original proposal covered only players making $ 50,000 or more).

It is easy to criticize this, as one commentator does, as a money grab targeting a vulnerable group. After all, no one is going to have sympathy for the group Rafalski is trying to protect--players making half-a-million dollars and having to pay $ 7500.

But dig deeper. The tax is expected to raise more than $ 1.1 million a year for municipal programs. The players are potentially playing in a publicly financed arena on which the state and local governments will not recoup their financial investments, so it is hard to blame the city for trying to get something.

I do wonder whether there is an Equal Protection problem here--not in singling out professional athletes, but in exempting the NFL. Is there a rational basis for taxing two leagues and not the third? Is avoiding a penalty from the NFL a rational basis?

Sunday, March 28, 2010

Institutional symbolic counter-speech

Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I have written a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message.

An interesting twist on symbolic speech and counter-speech is playing out at the institutional level at Goshen College, an Anabaptist-Mennonite liberal arts college that plays in NAIA. For years, Goshen has not played the national anthem before home sporting events, believing that the song conflicts with the Mennonite traditions of pacifism and anti-militarism (the lyrics celebrate a war and a military battle) and objections to excessive nationalism or pledging allegiance to anything other than God.

But the school has spent more than two years rethinking and debating that policy, ultimately which has drawn criticism from some visitors to the school. The school finally decided to play an instrumental version before home games, beginning with a baseball and softball game played last week. The decision continues to provoke discussion, disagreement, and debate among college administration, alumni, and faculty.

This is an interesting resolution--in part because no one is quite happy. It seems to address the pacifism concerns, excluding the militaristic lyrics, but not necessarily the nationalism concerns, which would seem to reject any song honoring country, regardless of lyrics. I presume this is why playing an alternative song--America, the Beautiful (Ray Charles version)would be my preference--never has been an option and was not the chosen option now.

By agreeing to play the song at sporting events that it sponsors and hosts, Goshen as an institution is engaging in symbolic speech--promoting the symbol and its meaning through the pre-game ceremony. Goshen's message is slightly altered by using only the instrumental version and not associating itself with the lyrics. Now we see what (if any) symbolic counter-speech follows in response. Interestingly, in this case, it could come from both directions. Those who disagree with the new policy may refuse to participate in the symbolic ritual by refusing to stand during the song or by turning away from the flag. Those who believe the new policy does not go far enough may take it on themselves to sing the lyrics as a way of both giving a fuller endorsement to the complete patriotic message (whatever additional meaning comes from the lyrics) and of protesting Goshen's decision not to go farther with the anthem.

Thursday, March 25, 2010

Tomorrow is Sports Law Symposium Day

Like we blogged about before, tomorrow has a number of great sports law-related events scheduled, all of which are free and open to the public:

Harvard Law School: “Operating in the Shadow of Upcoming Collective Bargaining Negotiations”

Fordham Law School: Annual sports law symposium

Florida International:
"Whither the Board? The National Labor Relations Board at 75"

2010 Scholarly Conference on College Sport at the University of North Carolina-Chapel Hill

I look forward to being a panelist at the 2010 Scholarly Conference on College Sport at UNC Chapel Hill. It will be a three-day event held from April 21 to 23 and is being hosted by the College Sport Research Institute and the UNC Exercise and Sport Science Department. This student-run conference features a one-day Issues in College Sport Symposium followed by two full days of academic research presentations by sport management faculty from across the nation. This annual conference is the creation of UNC Professor Richard Southall, the founder and director of the College Sports Research Institute.

I'll be on the NBA age limit panel and will be joined by Maryland basketball coach Gary Williams, Darryl Dawkins--the first player who jumped from high school to the NBA (drafted in the first round, 5th overall, in the 1975 NBA Draft by the 76ers out of Maynard Evans High School in Florida), ESPN's Doug Gottlieb, and Shane Lyons of the ACC. I'm looking forward to it.

Here are some details on the program:

Ethics of Elimination: Will Broad-Based Athletic Departments Survive

* Mr. Jeff Bourne -- Athletic Director, James Madison University
* Mr. Mike Moyer -- Executive Director, Wrestling Coaches Association
* Ms. Amy Perko -- Executive Director, Knight Commission
* Dr. John Cheslock -- Professor, Penn State University
* Mr. David Akinniyi -- Defensive End, NC State University

One and Done: What is the Effect of the NBA's Age Limit Rule on the College Game?

* Mr. Gary Williams -- Men's basketball coach, University of Maryland
* Mr. Doug Gottlieb -- College basketball analyst, ESPN
* Mr. Michael McCann -- Professor, Vermont Law School
* Mr. Shane Lyons -- Associate Commissioner Compliance, Atlantic Coast Conference
* Mr. Darryl Dawkins -- Former NBA player

Thou Shalt Not Tweet: Athletes' Social Networking Legal Rights vs. Institutional Control

* Ms. Kathleen Hessert -- President, Sports Media Challenge
* Mr. Lester Munson -- Legal Analyst, ESPN
* Mr. Steve Kirschner -- Associate athletics director for athletic communications, University of North Carolina at Chapel Hill
* Mr. Marvin Austin -- Defensive Tackle, University of North Carolina at Chapel Hill
* Mr. Ronnie Ramos -- Director of New Media Strategies, NCAA

Keynote Speakers

* David Williams -- Vice Chancellor for University Affairs and Athletics, Vanderbilt University
* Bernadette McGlade -- Commissioner, Atlantic 10 Conference

Academic keynote

* Michael Oriard -- Professor, Oregon State University

Banquet keynote

* Anson Dorrance -- Women's soccer coach, University of North Carolina

Bridging the Gap

* Craig Thompson -- Commissioner, Mountain West Conference

For information on registering, click here. For information on media, contact conference co-director Jack Daly.

Wednesday, March 24, 2010

New York Law School's Sports Law Symposium

Paul Haberman and I will be panelists at this year's New York Law School Sports Law Symposium on Monday, April 5. It will be an all-day event and should be excellent. Matthew Corwin, Alycia Hucabey, and Lauren Friedberg have done a great job organizing it. Here are some details:

New York Law School's Institute for Information Law and Policy and the Media Entertainment Sports Law Association present it's first Sports Law Symposium. The event will be held on Monday, April 5, 2010. There will be panels throughout the day and a networking reception at 6:15 pm.

Event Center (W201)
New York Law School
185 W. Broadway
New York, NY 10013

Panels for the day include:

12:45-1:45: Legal Issues in Running a Professional Sports League and Stadium

Jessica Berman (Associate Counsel, NHL)
Mark Stefanacci
(Chief Operating Officer & Legal Counsel, NJ Sports Exposition Authority)
Sue Cohig (Senior Vice President, NHL Club Consulting & Services NHL, NYLS alum)

2:00-3:15: Hot Topics in Sports

Jon Wertheim (Senior Writer, Sports Illustrated)
Michael McCann (SI Legal Analyst/Vermont Law School Professor)
Matthew Pace – (Sports Lawyer, Herrick, Feinstein)
Robert Boland (Professor of Sports Management at NYU, columnist at the National Football Post, and Counsel to the coaching representation firm Premier Stinson Sports)

3:30-4:45: Breaking into the Sports Industry

David Soskin (Assistant Counsel, ESPN, NYLS alum)
Paul Haberman (Sports Lawyer and NYCLA Sports Committee Chair)
Robert Boland (Professor of Sports Management at NYU, columnist at the National Football Post, and Counsel to the coaching representation firm Premier Stinson Sports)
Luis Barragan (Director of Programming, HBO Sports)
Gabe Feldman (Tulane Law School Professor)

5:00-6:15: Licensing and Endorsement Deals in Professional Sports

Michael McCann (SI Legal Analyst/Vermont Law School Professor)
Betsy Goff (previously former executive ABC, VP of ESPN, and IMG legal)
Robert Freeman (Sports Lawyer, Proskauer)
Kenneth Gordon (Counsel, ESPN)
David Mayer (Assistant Counsel, ESPN)
Gabe Feldman (Tulane Law School Professor)

6:15-7:15: Networking Reception in the Event Space

Please RSVP to by March 31st

Tuesday, March 23, 2010

Florida International University College Of Law Labor Law Symposium

FIU Law will be hosting what looks to be an excellent labor law symposium this Friday (the same date that Harvard Law School and Fordham Law School will be hosting sports law symposium). There are some terrific panelists, including those with sports law backgrounds, such as Boston University Law Prof Michael Harper, Marquette Law Prof Paul Secunda, and WVU Law Prof Anne Lofaso. Here are the details:

Florida International University College Of Law, 2010 Law Review Symposium Whither the Board? The National Labor Relations Board at 75

9:15 - 11:45 a.m. Panel I Structural and Administrative Reform under the Existing NLRA
Jennifer Hill, Esq., Florida Immigrant Advocacy Center
Jeff Hirsch, Associate Professor of Law, University of Tennessee College of Law
Anne Lofaso, Professor of Law, West Virginia University College of Law
Jeffrey Lubbers, Professor of Practice in Administrative Law, American University College of Law
John Sanchez, Professor of Law, Nova Southeastern University Law School

12:00 - 2:00 p.m. Lunch Speakers
Dean R. Alexander Acosta, FIU College of Law & Former Member, NLRB
Wilma Liebman, Chairman, NLRB

2:00 - 4: 30 p.m. Panel II Changes in Board Law under the Existing NLRA
Matthew Bodie, Associate Professor of Law, Saint Louis University School of Law
James Brudney, Newton D. Baker-Baker & Hostetler Chair in Law, Ohio State College of Law
Catherine Fisk, Professor of Law, University of California-Irvine School of Law
Michael Harper, Professor of Law, Barreca Labor Relations Scholar, Boston University

Saturday, March 27th 9:00 - 10:15 a.m. Panel III Structural and Legal Reform: The Discussion Continues
Samuel Estreicher, Dwight Opperman Professor of Law, New York University School of Law
Paul Secunda, Associate Professor of Law, Marquette University Law School
Peter Schaumber, Member, NLRB

Wednesday, March 17, 2010

Vermont Law School Panel on Age Limits in Pro Sports

On Friday, April 2, at noon, we'll have what should be an engaging panel discussion on the role of age limits in professional sports. We hope you can make it up here (Vermont in April is about as nice a place as you can find). Here is the press release:

The Vermont Law School’s Sports and Entertainment Law Society will present a panel discussion on Friday, April 2, on age limits in professional sports.

The event, which is free and open to the public, will be from noon to 2 p.m. in the Chase Community Center.

Panelists will include:
  • Alan Milstein, a nationally-acclaimed sports litigator who represents NBA players Allen Iverson and Eddy Curry, among others, and who served as lead counsel for Maurice Clarett in Clarett v. NFL;
  • Mike Zarren, the Boston Celtics' assistant general manager and associate counsel;
  • Ryan Rodenberg, an assistant professor at Florida State University’s Department of Sport Management, former counsel at Octagon sports agency, and author of articles on age limits in the NBA, professional tennis, and the LPGA; and
  • Chris Brown, President of the Basketball and Entertainment Divisions of the Boston-based Orpehus Sports and Entertainment, which he co-founded with Joe Rosen. Chris's clients include NBA players and music stars, such as Los Angeles Clippers center DeAndre Jordan and former Indiana Pacers point guard Travis Best. Chris is also an adjunct entertainment law professor at Boston College Law School, from where he graduated in 1998.
Professor Michael McCann, who is Sports Illustrated's Legal Expert and who worked for Mr. Milstein in the Clarett case, will moderate.

The debate over age limits in professional sports centers on lucrative contracts and marketing deals, anti-trust issues and labor laws, and whether young athletes have the physical and emotional maturity to compete with older players.

The NFL and NBA have age-based eligibility requirements, but professional baseball, golf, hockey, tennis and other sports leagues either have no minimum age requirement or allow players under age 18 under certain requirements. The NCAA declares players ineligible for collegiate sports once they declare themselves eligible for the pro draft and sign with agents.

Contact Andrew Delaney for more details. For directions to Vermont Law School (which is about 2 hours from Boston and 25 minutes from Dartmouth College), click here. For the panel's Facebook page, click here.

Update: Vermont CLE credit will be available for lawyers in attendance. We appreciate the Vermont Bar Association co-sponsoring this event.

Tuesday, March 16, 2010

Law and "Law" in Baseball

Here's a good story talking about baseball's "codes" as to civility and conduct, in advance of publication of The Baseball Codes: Beanballs, Sign Stealing, and Bench-Clearing Brawls: The Unwritten Rules of America's Pastime.

It is not nearly as clear as ""three simple things. Respect your teammates, respect your opponents and respect the game." Far more gray area, thus enough stories to support a book.

Can Your Employer fire you for participating in a March Madness pool at work?

This is the question that Fox News' Tim Lemke explores in a new column titled "March Madness at Work: Morale Booster or Drain on Productivity?"

Monday, March 15, 2010

International Sports Law Conferece: Call for Abstracts

Dr. Anastasios Kaburakis, an Assistant Professor of Sports Management at Southern Illinois University, passed along the call for abstracts for the International Sports Law and Businss Conference in Istanbul, Turkey, this September.

Friday, March 12, 2010

14th Annual Fordham Sports Law Symposium

On March 26, 2010, Fordham Law School will host the 14th Annual Fordham Sports Law Symposium. Harvard will also be hosting its Symposium on that day, so for all of you sports law afficionados, TGIF! While Mike will be moderating a panel at Harvard on CBA issues in the NFL, I will be moderating a panel at Fordham on age restrictions in professional sports. Gabe Feldman will be moderating a panel on sports licensing that Marc Edelman is participating on. Hopefully, you can make one of these events. Both Harvard and Fordham's events are free and open to the public. The details for Fordham Law School's Symposium follows:

The Symposium will take place from 8:30am-4:35pm in the James B.M. McNally Amphitheatre. The event is sponsored by The Fordham Sports Law Forum and the New York State Bar Association.

8:30am-9:00am Registration

9:00am-9:30am Welcome and Opening Remarks
CASSIE MULLMAN - Managing Editor, Fordham Sports Law Forum

Panel 1: The Changing Face of Sports Licensing
Associate Professor of Law and Director, Sports Law Program, Tulane University Law School
General Counsel, American Needle
Assistant Professor, Dwayne O. Andreas School of Law; Founder and CEO,
Partner, Jones Day
Partner, Herrick Feinstein LLP

11:10am-11:15am Break

Panel 2: The Legality and Impact of Age Restrictions into Professional Sports
Chair, Sports Law Practice Group, Smith Amundsen LLC; Adjunct Professor of Sports Law, Loyola University Chicago School of Law
Vice President of Basketball Operations, New Jersey Nets
Counsel, Herrick Feinstein LLP
International Scouting Coordinator, Boston Red Sox
Host, "Beyond the Game"

1:00pm-1:45pm - Lunch

1:45-2:45 - Keynote Address
Of Counsel, Paul Weiss Rifkind Garrison and Wharton

2:45pm-2:50pm Break

Panel 3: The Future and Evolutions of Sports Salary Arbitration
Clinical Associate Professor of Law, Director of Professional Skills
Associate Counsel, National Hockey League
Partner, Williams and Connolly LLP
Senior Associate, Proskauer Rose LLP
Principal, Excalibur Sports, Inc.

The symposium is free and open to the public. 6 non-transitional, professional practice
NYS CLE credits are available for $85 ($50 for Fordham Law alumni & public interest attorneys). CLE Credits: 6 non-transitional, professional practice
Contact: CLE Office Telephone: 212 636-6945 Fax: 212 636-6984 Email:

Thursday, March 11, 2010

Practical Effects of American Needle v. NFL on a Minor League Baseball Team

American Needle v. NFL, which has been discussed in detail on Sports Law Blog, is currently under review by the Supreme Court. As a brief overview, the NFL signed a contract with Reebok International, making the company the official supplier of on-field caps, for all players and personnel. American Needle, out of Illinois, argued that this is a violation of anti-trust law because the NFL's member teams are acting in a concerted effort to eliminate any competition in the market. How this plays out for other sports remains to be seen, but one possible impact is discussed here.

Minor league baseball players, just like their Major League counterparts, dawn New Era caps on the field. It seems as though they always have, and perhaps they always will. However, if American Needle prevails in the Supreme Court, this long standing baseball tradition might just get turned upside down at our cozy little ballpark.

I work for the Single-A Visalia Rawhide, a Diamondbacks affiliate in the California League. A full stadium for us is 2,500 people, making it the smallest full-season ballpark in the country. So what does the American Needle case mean to us? Surprisingly more than you might think.

Like every other affiliated professional baseball team, we have to buy our on-filed caps from New Era. We are one of over 250 teams that are required to purchase caps from this supplier. Like any vendor, they have minimum order quantities; in our case it's 144 caps per order with a six to eight week lag time. Thus, if we run out of a size four weeks into our season, we have to place at least a minimum order, and wait up to eight weeks to receive it. From a practical standpoint, we would go over half of our season without a particular cap size or style in stock. Of course the reason for the long wait time is New Era has over 250 clients whose seasons all start and end at approximately the same time. It would take any company a fair amount of time to develop product for that many clients.

In addition to the long wait time, pricing has gone up about $.50 per cap over the last two years; and not just on fitted caps, but the adjustable and batting practice hats as well, which are made of lower quality materials. These hats now all cost us the same. Add on the fact that the caps are now made in two different countries which causes the sizes to be inconsistent and it becomes easy to see why a team like us would want a little more competition in the market place.

These comments are not meant to be an attack on New Era as a company or supplier to Major or Minor Leauge Baseball. The relationship between these entities is well established and has been from all accounts successful. Rather, this is meant to provide an example of how a landmark decision in the Supreme Court could have a lasting impact on daily operations at a small ballpark in California.

Guest Blogger: Elizabeth Martin

We are pleased to announce that Elizabeth Martin will be guest blogging on Sports Law Blog for the next couple of weeks. Liz is the Assistant General Manager and Legal Counsel for the Visalia Rawhide, the Class "A" affiliate of the Arizona Diamondbacks. She is a graduate of DePaul University College of Law, where she was sports law symposium editor of the law school's Journal of Sports Law and Contemporary Problems. We look forward to her insights.

Update on O'Bannon v. NCAA

Ed O'Bannon and Sam Keller's class action lawsuit against the NCAA grew yesterday, with the addition of 11 additional plaintiffs. They include former student-athletes who played in championship men's basketball games. Harry Flournoy, who was captain of the 1966 Texas Western team which defeated the University of Kentucky, and Eric Riley, who played at the University of Michigan with Chris Weber and the Fab 5 and later played for 5 NBA teams between 1993 and 1999, are among them.

To read the amended complaint in PDF, click here. Last year, I wrote about this case for Sports Illustrated in a column.

Making More by Spending Less

Sports Business Daily (subscription only), citing Greg Johns of, reported yesterday that the Seattle Mariners posted "a $3.18M profit for '09, as opposed to a $4.53M deficit for '08." According to SBD: "That deficit was 'thanks in part to the team's highest payroll ever of $120M combined with a significant drop in attendance to 2.32 million fans from the previous year's 2.67 million.' Attendance declined another 6% this past season to 2.19 million last year, but the Mariners lowered their payroll to about $99M, meaning the club 'essentially made more by spending less.'" Bob Condotta of the Seattle Times attributes the '09 profit "largely to increased revenue due to a better team on the field as the Mariners won 85 games in 2009 after winning just 61 in 2008."

The club "made more by spending less." What an amazing concept! --And that's even with a significant drop in attendance. Also, the club won more games when they reduced their payroll by $21M. I wonder if college athletic departments might learn something from this when 95 of the 120 Football Bowl Subdivision schools are reporting deficits, yet they continue to justify the $2, $3, $4 and now $5 million head coaches' salaries (and $500k to $750K for assistant coaches) on the basis that it will lead to more wins.

Wednesday, March 10, 2010

More on Judges and Umpires

Mike's post flagging Aaron Zelinsky's excellent essay on the judge-umpire analogy gives me the chance for some shameless promotion:

At the Law and Society Association Annual Meeting in May in Chicago, I will be part of a roundtable on Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. Participants include myself and Aaron, along with Mark Graber (Maryland Law), Neil Siegel (Duke Law and Political Science), Mitchell Berman (Texas Law), and Bruce Weber (journalist and author of As They See 'Em: A Fan's Travels in the Land of Umpires). Topics will include the judge-umpire analogy (including discussion of Aaron's arguments), the nature of judging and sports officiating, and the adjudicative nature of instant replay--all issues near to my heart.

And, to answer Mike's question: I would argue that the President (alone or in conjunction with Congress) is the commissioner, while federal judges (including the SCOTUS Justices) are the umpires. Part of the problem I have come to have with the analogy is it conflates constitutional with statutory adjudication and decisionmaking. The President and Congress make statutory law that courts are expected to interpret and construe (consistent with congressional intent) and apply, just as the Commissioner makes the rules of baseball for the umpires to apply.

McGill University Faculty of Law Discussion on American Needle v. NFL and Single Entity Issues

If you are in the Montreal area and are interested in sports and antitrust law, I'll be giving a talk on Tuesday, March 16, at 4 p.m. at the McGill University Faculty of Law. I'll be presenting on both my article, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 Yale Law Journal 726 (2010) and my forthcoming article, The NBA and the Single Entity Defense: A Better Case?, 1 Harvard Journal of Sports and Entertainment Law__ (forthcoming, 2010).

I'll also address related questions of antitrust, labor, and sports law, including the O'Bannon v. NCAA lawsuit and what we might expect in the next set of collective bargaining agreements.

The discussion will center on U.S. law, though I expect we will also explore how American Needle v. NFL might impact the expansion of U.S. leagues into Canada and elsewhere (for a related and insightful perspective on that topic, see Marc Edelman and Brian Doyle's article "Antitrust and 'Free Movement' Risks of Expanding U.S. Professional Sports Leagues into Europe").

The event is being hosted by the McGill Entertainment and Sports Law Association. It will be in Room 312 of the law school's Chancellor Day Hall.

I look forward to my trip to McGill law school and hope to get the chance to meet Sports Law Blog readers who are based in Montreal (I know we have some).

The Justice as Commissioner: Benching the Judge-Umpire Analogy

Yale Law School third-year student Aaron Zelinsky's terrific article, The Justice as Commissioner: Benching the Judge-Umpire Analogy, has been published by The Yale Law Journal Online. It addresses a topic that has generated great discussion on this blog, including some excellent commentary by Howard.

Here's Aaron's intro:
The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

This Essay is divided into three parts. The first Part traces the judicial history of the judge-umpire analogy from the late 1880s, finding that the analogy was originally intended for trial judges, and was expressly advanced as a model to be rejected. The second Part proposes a new paradigm for describing the role of Supreme Court Justices: the Justice as Commissioner. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power. This Essay concludes that Justices are not Umpires: they are Commissioners.
To read the rest of Aaron's article, click here.

Aaron's article seems particularly timely given comments this week by Chief Justice John Roberts, who used the judge-umpire analogy in his 2005 confirmation hearings. Speaking at the University of Alabama School of Law a couple of days ago, Roberts criticized President Obama for his denouncement of the Supreme Court's decision in Citizens United v. Federal Elections Commission during the President's state of the union address in January. As you recall, the President's comments prompted Justice Samuel Alito to shake his head and mouth "not true". It was a very unusual, somewhat awkward exchange between a President and Supreme Court Justice -- both in terms of a President publicly criticizing the Supreme Court before the three branches of the federal government and of a Justice departing from the expected non-political disposition during state of union addresses.

Roberts said:
The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.
So who might the President be in the judge-umpire analogy? The Commissioner of Baseball? There probably isn't an analog in a federal judge-umpire analogy, given federal judges' lifetime appointment, but an elected state judge would seem to be in a different situation. Food for thought.

Tuesday, March 9, 2010

Williams v. NFL update

Bloomberg's Sophia Pearson, Beth Hawkins, and Aaron Kuriloff detail the latest in Minnesota Vikings defensive tackles Kevin and Pat Williams' lawsuit against the NFL, the trial for which began this week.

The lawsuit stems from December 2008, when the NFL suspended both Williams and four other players for testing positive for the diuretic bumetanide, a banned substance contained in the dietary supplement StarCups, the label of which omits mention of bumetanide. Simplifying the case quite a bit, Williams claims that the testing and subsequent suspension violate Minnesota law's protections for confidentiality and for failure to timely notify of drug test results. The NFL contends that Minnesota law should not govern a dispute that should arise under the agreed-upon terms and conditions of the NFL-NFLPA collective bargaining agreement. Last month, in a separate hearing, a Minnesota judge--Judge Gary Larson--partially rejected the NFL's arguments. Now the parties are in trial before Judge Larson.

Here's an excerpt of the Bloomberg piece -- it focuses on the NFL's arguments and it includes my comments regarding how the NFL views the case:

* * *
* * *

To read the rest of the Bloomberg article, click here. I wrote a column on this topic back in December 2008. Gabe also has written about the case, most recently last month.

Harvard Law School 2010 Spring Sports Law Symposium

I look forward to speaking at this year's Harvard Law School sports law symposium. It will be all-day event on Friday, March 26. Here is some information on the symposium, which is in honor of Harvard Law School professor (and sports law pioneer) Paul Weiler and is open to the public, free of charge:

* * *

The Harvard Committee on Sports and Entertainment Law and Harvard Journal of Sports and Entertainment Law are pleased to announce the 2010 Spring Sports Law Symposium at Harvard Law School. The event will take place on Friday, March 26, 2010, and is open to the public, free of charge.

The theme for the symposium is “Operating in the Shadow of Upcoming Collective Bargaining Negotiations.” Each of our panels and keynote address will shed light on the key issues facing each league as it approaches the expiration of its collective bargaining agreement. In addition to discussing the key issues that will need to be resolved to avoid a labor stoppage in each league, we will explore how the labor uncertainty is affecting current operations within each league, and how any sort of a labor stoppage might affect the short-term and long-term interests of each league. In exploring each of these issues, we will draw from our panelists’ varied backgrounds to fully understand what is at stake for the leagues, teams, unions, players, and other entities close to the game.

Schedule of Events

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)
NFL Panel - 1:15 - 2:30 (Pound 101)
NBA Panel - 2:45 - 4:00 (Pound 101)
Keynote Address - 4:15 - 4:45 (Pound 101)
MLB Panel - 5:00 - 6:15 (Pound 101)
Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)

Sports Legacy Institute Kickoff Lunch - 12:00-1:00 (Pound 334/335)

Chris Nowinski, President and CEO, Sports Legacy Institute
Sean Morey, NFL Player
Pete Kendall, NFL Player
Isaiah Kacyvenski, Retired NFL Player
Christian Fauria, Retired NFL Player
George Atallah, Assistant Executive Director for External Affairs, NFLPA
Moderated by Professor Peter Carfagna, Harvard Law School

NFL Panel - 1:15 - 2:30 (Pound 101)

Adolpho Birch, Vice President of Law and Labor Policy, NFL
David Feher, Partner, Dewey & LeBoeuf
Woodie Dixon, General Counsel and Director of Salary Cap, Kansas City Chiefs
Neil Cornrich, President, NC Sports
Sarah Stuart, Senior Counsel, Reebok
Moderated by Professor Michael McCann, Vermont Law School

NBA Panel - 2:45 - 4:00 (Pound 101)

Jeffrey Mishkin, Partner, Skadden, Arps, Slate, Meagher & Flom
Hal Biagas, Executive Vice President of Management, Wasserman Media Group
Michael Zarren, Assistant General Manager and Team Counsel, Boston Celtics
Matthew Hong, Senior Vice President and General Manager, Turner Sports
Robert Tilliss, CEO, Inner Circle Sports
Moderated by Professor Peter Carfagna, Harvard Law School

Keynote Address - 4:15 - 4:45 (Pound 101)

Robert Manfred, Executive Vice President for Labor Relations, MLB

MLB Panel - 5:00 - 6:15 (Pound 101)

Daniel Halem, Senior Vice President, General Counsel for Labor, MLB
Derek Jackson, Vice President and General Counsel, Florida Marlins
David Prouty, Chief Labor Counsel, MLBPA
Timothy Slavin, Assistant General Counsel, MLBPA
Joseph Rosen, Partner, Brown & Rosen
Moderated by Jimmy Golen, Associated Press

Cocktail Reception - 6:30 - 8:00 (Austin West Rotunda)
Presentation of the Paul C. Weiler Award

Monday, March 8, 2010

Highlights from MIT Sloan Sports Analytics Conference

On Saturday, I was a panelist at the 2010 MIT Sloan Sports Analytics Conference, which is hosted by ESPN and which has become (in my opinion) the biggest annual event for sports professionals. I spoke on the "Performance Enhancement: Will Future Athletes be Formula One or NASCAR?" panel.

My panel included Phoenix Suns president of basketball operations and general manager Steve Kerr, ESPN The Magazine editor-in-chief Gary Belsky, and several other excellent panelists. It was an awesome discussion. I could detail points of our discussion and audience questions (which included a question asked by Indianapolis Colts team president Bill Polian), but ESPN's Kevin Arnovitz already does, and quite well, in his column on the panel.

For a review on the entire event, check out Henry Abbott's excellent recap.

Academic papers were presented at the event, and one will clearly attract a good deal of interest. University of Chicago Professor Tobias Moskowitz and Sports Illustrated senior writer Jon Wertheim have co-written a paper on the presence of omission bias among referees. The paper is titled, “Whistle Swallowing: Officiating & the Omission Bias”.

As Kevin Arnovitz details in his recap of the paper, an omission bias in this context refers to a referee's willingness to make an incorrect call rather than make an incorrect non-call. Brian Robb of ESPN's Celtics Hub also has an extensive piece on the paper, which will be part of a book that Moskowitz and Wertheim publish in the near future.

The Flying Hotdog Lawsuit: Coomer v. Kansas City Royals

Over on Torts Prof Blog this morning, I have a guest post on the relationship between "game presentation", where teams and stadium operators try to keep fans entertained at every moment during the game (e.g., firing t-shirts up into the crowd during timeouts), and tort law.

I pay particular attention to Coomer v. Kansas City Royals, a lawsuit which centers on a Royals fan who was hit in the eye by a hotdog thrown by the Royals' mascot, Slugger.

Here's an excerpt from the post:

* * *
We all know the expression, “It’s all fun and games till someone loses an eye.” Who would imagine that a hotdog could cause such an injury? According to Coomer, a hotdog indeed caused him a serious eye injury. He claims that he was a mere “few feet away” from Slugger when Slugger’s errant, behind-the-back throw led to Coomer’s left eye getting hit by a hot dog. Coomer suffered a detached retina and other eye damage. Coomer’s complaint doesn’t address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn’t state so).

Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care. Coomer has also filed a battery claim.

The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur.

* * *
To read the rest, click here.

Sunday, March 7, 2010

The Washington Wizards Dumped Jamison, Butler, and Haywood. Can they Dump Arenas and his Contract?

I have a new column up at the Huffington Post that takes a close look at the question on the minds of the Washington Wizards and their fans: Can the team terminate Gilbert Arenas' contract? An excerpt is included below. You can find the full column here. Also, for those looking for quick sports law updates throughout the day, you can follow me on twitter here... (Note: Link is now fixed)

So, the $80 million question comes down to this -- was the "egregious nature" of Arenas' conduct "so lacking in justification as to warrant" a league-imposed 50 game suspension and the termination of his contract?...The closest precedent we have for this case is the infamous choking incident involving Latrell Sprewell.

For the Wizards to terminate Arenas' contract, they would likely have to convince David Stern (and perhaps an arbitrator) that Arenas' conduct was more egregious than Sprewell's. Would they have a compelling argument? Perhaps. Let's compare the two. Arenas violated a specific written NBA rule prohibiting the possession of guns on NBA property (on a team that changed its name from the Bullets to the Wizards to avoid an association with gun violence). Sprewell violated a rule that was so obvious ("don't choke your coach") the NBA did not feel the need to write it down. Arenas compounded the situation by joking about the incident on twitter and in a pre-game team huddle on the court. Sprewell, after being wrestled away from his coach by his teammates, retreated to the locker room to cool off, and then returned to the court 20 minutes later to throw a punch at Carlesimo (and was later charged with reckless driving and served three months under house arrest during his suspension). Arenas had a prior gun offense -- he was suspended in 2004 for failing to properly register a gun. Sprewell had a prior fighting offense -- two years before the choking incident, Sprewell fought with his teammate Jerome Kersey. After the fight, he threatened to return with a gun (fret not, he only returned with a two-by-four).

Thursday, March 4, 2010

Fame and Infamy

In comments to my post about Roger Clemens, Ed Edmonds poses an interesting question:

Hasn't Jackson's banishment from baseball actually served to keep him in front of the baseball public for so many years? Does the average fan know as much about Tris Speaker, Nap Lajoie, Honus Wagner (if not for the baseball card) as they do about Jackson? Perhaps Rose can make more money selling his autograph because the controversy keeps his name before the public.

Ed is onto something about Rose remaining in the spotlight (and able to make money) because of his banishment--at least from 1989 until 2004, when he could play the aggrieved victim of unfair treatment (remember his Jim Gray interview at the 1999 World Series). That all ended when he published his book in 2004 and admitted (although without really apologizing for) what everyone already knew. He has rarely been heard from since.

Jackson remains relevant today because he is a singular figure, based on a combination of his greatness and his banishment. He remains more relevant than the other seven banned Black Sox because he was the best player and the only one unquestionably left out of the Hall of Fame because of the ban. He remains more relevant than his other Hall-worthy contempories (Lajoie, Wagner, et al.) because we still have something to talk, argue, and make movies about--whether he did anything wrong and whether the ban should be lifted and he should be redeemed with induction to the Hall (or at least a chance to play in an Iowa cornfield).

Will we remember Rose 90 years from now more because he has been banned than we will remember Hall contemporaries (say, Reggie Jackson or Tony Perez)? Maybe. Will we remember him more than if he just were let into the Hall? Maybe. One distinction could be between record-holders and "other" Hall-of-Famers. Rose was nowhere near the best player of his (or any other generation) or even the best hitter, but he does hold a significant career batting record. So perhaps, even without gambling, we would remember Rose more than we do Perez, just as we remember Ty Cobb more than we do Lajoie.

Wednesday, March 3, 2010

Settlement between MLB Properties and Upper Deck

Maury Brown at the BizofBaseball blog is reporting that MLB Properties and Upper Deck have settled their recent trademark infringement lawsuit. The terms of the settlement are detailed here, but in short Upper Deck has effectively agreed to cease its accused conduct in the future, and agreed to pay MLB Properties "significant" damages for its unlicensed 2010 products. Ethan Orlinsky, Senior Vice President and General Counsel, Major League Baseball Properties declared the settlement to be a "clear and decisive victory" for MLB. Based on the initial details of the settlement, I would have to agree.

Tuesday, March 2, 2010

Some thoughts on Roger Clemens

Journalist Jon Pessah talks about the legacy and current limbo status of Roger Clemens, based in part on recent conversation Pessah had with the should-be future Hall-of-Famer. In a sidebar, Pessah gathered comments about Clemens from a range of baseball watchers, including Mike and me.

Monday, March 1, 2010

New Sports Law Scholarship

Recently published scholarship includes:
Sean W.L. Alford, Comment, Dusting off the AK-47: an examination of NFL players’ most powerful weapon in an antitrust lawsuit against the NFL, 88 NORTH CAROLINA LAW REVIEW 212 (2009)

Jeffrey Benz, Common issues in international sports arbitration, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 165 (2009)

Kristan Bryant, Note, Take a knee: applying the First Amendment to locker room prayers and religion in college sports, 36 JOURNAL OF COLLEGE & UNIVERSITY LAW 329 (2009)

Christian Dennie, Tebow drops back to pass: videogames have crossed the line, but does the right of publicity protect a student-athlete’s likeness when balanced against the First Amendment?, 62 ARKANSAS LAW REVIEW 645 (2009)

N. Jeremi Duru, This field is our field: foreign players, domestic leagues, and the unlawful racial manipulation of American sport, 84 TULANE LAW REVIEW 613 (2010)

Virginia A. Fitt, Note, The NCAA’s lost cause and the legal ease of redefining amateurism, 59 DUKE LAW JOURNAL 555 (2009)

Michael Gerton, Note, Kids’ play: examining the impact of the CBC Distribution decision on college fantasy sports, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 153 (2009)

Mike Leach, A legal education applied to coaching college football, 42 TEXAS TECH LAW REVIEW 77 (2009)

Michael Lenard, The future of sports dispute resolution, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 173 (2009)

Richard H. McLaren & Geoff Cowper-Smith, The Beijing Summer Olympic Games: decisions from the CAS and IOC, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 69 (2009)

Matthew J. Mitten, Judicial review of Olympic and international sports arbitration awards: trends and observations, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 51 (2009)

Jennifer A. Mueller, Note, The best defense is a good offense: student-athlete amateurism should not become a fantasy, 2009 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 527-560

Chad M. Oldfather & Matthew M. Fernholz, Comparative procedure on a Sunday afternoon: instant replay in the NFL as a process of appellate review, 43 INDIANA LAW REVIEW 45 (2009)

Christopher Pruitt, Debunking a popular antitrust myth: the single entity rule and why college football’s Bowl Championship Series does not violate the Sherman Antitrust Act, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2009)

Scott Rosner & Deborah Low, The efficacy of Olympic bans and boycotts on effectuating international political and economic change, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 27 (2009)

John Ruger, From the trenches: the landscape of sports dispute resolution and athlete representation, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 157 (2009)

Michael S. Straubel, Lessons from USADA v. Jenkins: you can’t win when you beat a monopoly, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 119 (2009)

Geoff Varney, Note, Fighting for respect: MMA’s struggle for acceptance and how the Muhammad Ali Act would give it a sporting change, 112 WEST VIRGINIA LAW REVIEW 269 (2009)

Jeremy A. Wale, Adequate protection of professional athletes’ publicity rights: a federal statute is the only answer, 11 THOMAS M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 245 (2009)

Adam Wasch, Children left behind: the effect of Major League Baseball on education in the Dominican Republic, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 99 (2009)

Maureen A. Weston, Doping control, mandatory arbitration, and process dangers for accused athletes in international sports, 10 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 5 (2009)

Dr. Glenn M. Wong, Kyle Skillman & Chris Deubert, The NCAA's Infractions Appeals Committee: Recent Case History, Analysis and the Beginning of a New Chapter, 9 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 47 (Fall 2009)

Brian P. Yates, Whether building a new sports arena will revitalize downtown and make the team a winner, 17 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 269 (2009)