Friday, April 30, 2010

Sports Lawyers Association Annual Conference

The Sports Lawyers Association 36th Annual Conference will be held in Phoenix, Arizona on May 20-22. The three day annual conference is designed for attorneys, agents, representatives of professional athletes, professional sports teams and leagues, players associations, stadium and arena authorities, and companies tangentially involved with amateur sports; students and professors of sports law; educators; and all others generally interested in the field. The conference is also a great networking opportunity for those seeking to enter the field. The conference brochure contains the schedule of events and registration information, which can be accessed from the SLA's website.

Sunday, April 25, 2010

Catching up with Links

Here are some commentaries that I've been meaning to blog about over the last week and today found time to do so:

* Over on Mergers and Acquisitions Law Prof Blog, Boston College Law Professor Brian JM Quinn has a terrific post on Stan Kroenke's bid to purchase the St. Louis Rams, a bid complicated by NFL rules that prevent cross-ownership across leagues and by attempts to buy the Arensal Football Club, which Kroenke partly owns. This is a great post on the role of corporate law in pro sports.

* Sports lawyer Jay Reisinger, who has represented Sammy Sosa, Andy Pettitte, and many other athletes, argues in his new post, "Goodell's Folly", that commissioner Roger Goodell abused his powers as commissioner in suspending Ben Roethlisberger, who was not charged with a crime. Marc blogged about this topic last week.

* Sports lawyer Howard Jacobs, who has represented Floyd Landis among other athletes, has a new blog, Howard Jacobs Athletes Lawyer Blog, with some terrific first posts, including a two-part series on improving the NFL's drug testing program.

* A reminder that this Wednesday, the Sports Lawyers Association and Sullivan and Worcester will be hosting what should be an outstanding panel on American Needle v. NFL and a sports law networking event. I look forward to being a panelist with ESPN's Wendi Nix, former New England Patriots general counsel Jack Mula, Boston attorney Ryan Marth, and Ed Weiss of New England Sports VEntures. As mentioned, in addition to the panel, there will also be a networking event. If you're in the Boston area, I hope you have a chance to attend.

Thursday, April 22, 2010

Congratulations to the Harvard Journal of Sports and Entertainment Law: First Issue Now Published

The first issue of the Harvard Journal of Sports and Entertainment Law was just published today. We congratulate all of the folks who worked so hard to get an official sports and entertainment law journal at Harvard Law School. They include, among many others, our blog's founder, Greg Skidmore (a 2005 graduate of Harvard Law), Boston Celtics assistant general manager and associate counsel Mike Zarren (also a 2005 graduate), Professors Paul Weiler and Peter Carfagna, and current third-year student and Journal editor-in-chief Ashwin Krishnan, who recently received the Paul Weiler Award for excellence in sports and entertainment law.

Without further adieu, here is the first issue:

JSEL Volume 1, Issue 1

Peter A. Carfagna & Paul C. Weiler

Editor’s Note
Ashwin M. Krishnan

Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance
Clay Calvert, Wendy Brunner, Karla Kennedy & Kara Murrhee

The NBA and the Single Entity Defense: A Better Case?
Michael A. McCann

Hardball Free Agency: The Unintended Demise of Salary Arbitration in Major League Baseball
Eldon L. Ham & Jeffrey Malach

Wiki Authorship, Social Media and the Curatorial Audience
Jon M. Garon

The Integrity of the Game: Professional Athletes and Domestic Violence
Bethany P. Withers

Case Comment
In re Dewey Ranch Hockey
Ryan Gauthier

Will Ben Roethlisberger's 6-Game Suspension Stand?

Yesterday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player suspended by Commissioner Roger Goodell who has not been charged or convicted of a crime. Whether this suspension will stand, however, depends upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement.

First, whether the NFL Personal Conduct Policy is even part of the NFL Collective Bargaining Agreement ("CBA") is not entirely clear. NFL club-owners announced the league's current Personal Conduct Policy on April 10, 2007, which postdates the most recent CBA. While the NFL Personal Conduct Policy was informally approved by a group of NFL players, the NFL Personal Conduct Policy was never written and signed into the CBA (at least not according to publicly available information). This may present a problem for Commissioner Goodell's enforcement because Article LV, Section 19 of the NFL CBA states that "[n]one of the Articles of this Agreement may be changed, altered, or amended other than by a signed written agreement."

Second, presuming the NFL Personal Conduct Policy is not deemed part of the NFL Collective Bargaining Agreement, Commissioner Goodell may alternatively argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for "being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football." Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not altogether clear that Ben Roethlisberger has done anything "detrimental to the League or professional football," nor that he is in any way "guilty" as the term may be defined by that paragraph.

Finally, it is worth noting that Paragraph 11 of the NFL Player Contract grants individual club owners the power to terminate any player contract if that player "is engaged in personal conduct, reasonably judged by [the club] to adversely affect or reflect on [the club]." This clause seems to be far broader than Paragraph 15 of the NFL Player Contract and may present grounds for the Steelers to terminate Roethlisberger's contract. However, this clause extends only to a player's team, and not to the Commissioner, who is acting on behalf of the league overall.

(Cross-posted on SportsJudge Blog)

Tuesday, April 20, 2010

New Sports Law Scholarship

Recently published scholarship includes:
Marc Bianchi, Comment, Guardian of amateurism or legal defiant? The dichotomous nature of NCAA men’s ice hockey regulation, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 165 (2010)

Rhonda B. Evans, Recent development, “Striking out”: the Genetic Information Nondiscrimination Act of 2008 and Title II’s impact on professional sports employers, 11 NORTH CAROLINA JOURNAL OF LAW AND TECHNOLOGY 205 (2009)

Gabriel Feldman, The puzzling persistence of the single-entity argument for sports leagues: American Needle and the Supreme Court’s opportunity to reject a flawed defense, 2009 WISCONSIN LAW REVIEW 835-916

Megan Fuller, Note, Where’s the penalty flag? The unauthorized practice of law, the NCAA, and athletic compliance directors, 54 NEW YORK LAW SCHOOL LAW REVIEW 495 (2009/10)

Christopher S. Groleau, Note, Weird science: a look at the World Anti-Doping Agency’s questionable testing methods and the need for change to protect international athletes, 13 QUINNIPIAC HEALTH LAW JOURNAL 85 (2009)

Richard T. Karcher, The coaching carousel in big-time intercollegiate athletics: economic implications and legal considerations, 20 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1 (2009)

Victoria Langton, Note, Stop the bleeding: Title IX and the disappearance of men’s collegiate athletic teams, 12 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 183 (2009)

Brendan S. Maher, Understanding and regulating the sport of mixed martial arts, 32 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 209 (2010)

Scott R. Rosner & William T. Conroy, The impact of the flat world on player transfers in Major League Baseball, 12 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 79 (2009)

David Sirotkin, Note, Disciplining the disciplinary systems in professional sports: an attempt to fix the arbitrary and overreaching disciplinary powers of sports commissioners, 11 CARDOZO JOURNAL OF CONFLICT RESOLUTION 289 (2009)

Christine Snyder, Note, Perfect pitch: how U.S. sports financing and recruiting models can restore harmony between FIFA and the EU, 42 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 499 (2009)

Bethany Swaton, Girls can play, too: has the lack of female leadership in NCAA athletics become an afterthought?, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2010)

Benjamin A. Tulis, Final-offer “baseball” arbitration: contexts, mechanics & applications, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 85 (2010)

Monday, April 19, 2010

Panel on Doping at Florida Coastal

This Thursday at noon my law school is hosting a panel titled, Controlling the Use of Performance Enhancing Drugs in Sports: How to Maintain Competitive Balance Without Destroying Due Process. The participants are (1) Josh Kane, Associate Counsel & Drug Testing Program Administrator at the LPGA (and Florida Coastal alum); (2) Andy Levinson, Executive Director of the Anti-Doping Program at the PGA TOUR; and (3) Travis Tygart, CEO, United States Anti-Doping Agency.

The panelists will discuss contemporary issues in regulating the use of PEDs and the resulting challenges facing sport leagues and governing bodies.

Thursday, April 15, 2010

New NCAA regs and free speech

The NCAA announced several new rules today, two of which raise interesting questions if one (say, me) were to try to develop a rigorous conception of athlete free speech. (H/T: Rick). First, the NCAA toughened the penalties for taunting by making it, in some situations, a live-ball foul that would bring the ball back to the spot of the foul and might even negate a score. Second, it banned players from putting messages on eye black (outlawing a practice made famous by Reggie Bush and then Tim Tebow).

There clearly is no First Amendment problem here. The NCAA is a private organization (even if some member schools are private), so not bound by the First Amendment. And even if you could find state action, my guess is that current doctrine would treat this as employee speech (ironic, given the controversy over how student-athletes should be perceived and the issue of who should make money off college athletics); the players represent the university on the field, thus their speech may be restricted to enable the university (as "employer") to carry out its functions without interference.

At a normative level, regulations such as these raise interesting issues of how much liberty of speech players ought to have within the team concept. Everyone must wear the same uniform--but is there (and should there be) some room for individual expression, particularly on matters of public concern (depending on what a player chose to write in the eye black)?

City of Glendale Approves Reinsdorf Group’s Ownership Bid for Coyotes – But Proposed Financing Scheme Creates Possibility of Legal Challenge

On Tuesday, the Glendale City Council approved a preliminary memorandum of understanding authored by the potential ownership group known as Glendale Hockey, LLC for the purchase of the Coyotes’ assets from the National Hockey League. The group, headlined by sports magnate Jerry Reinsdorf, is supposedly viewed as the preferred ownership group to purchase the financially beleaguered franchise that the league bought out of bankruptcy in the latter part 2009. While the City Council ratified the Glendale Hockey, LLC memorandum of understanding, it rejected the proposed document submitted by Ice Edge Holdings, LLC, effectively ending the group’s ownership bid. The City Council’s approval of Glendale Hockey, LLC’s proposed memorandum clears the way for the group to negotiate with the NHL in hopes of purchasing the team.

A reading of the Reinsdorf group’s memorandum of understanding shows that Glendale Hockey, LLC plans on financing its bid through the sale of bonds and other revenue out of a newly created community-facilities district. This proposed district centers around Arena and the mixed use real estate development that surrounds the ice arena. The group also plans on raising funds through charging for parking, something that the previous ownership group had never done. However, this proposed method of fundraising has caught the attention of a local Arizona conservative watchdog, the Goldwater Institute. This is the same group that is considering challenging the constitutionality of a recently approved Arizona state tax that would assist in subsidizing the construction of the new Chicago Cubs spring training stadium.

The Goldwater Institute seems to believe that the Glendale Hockey, LLC bid places too much financial stress on the Glendale taxpayers and fails to put enough financial risk on the ownership group. Under the proposed financing scheme, the Goldwater Institute argues that the Reinsdorf ownership group “really seems to have insulated [itself] completely from any financial liability…” and that the brunt of the proposal’s monetary burden is placed on the taxpayers. A reading of the memorandum illustrates this point: under the proposed agreement with the City, after five years Reinsdorf’s group can sell the team or force Glendale to cover the group’s loses if the team is operating at a significant loss. This puts the new ownership group in a position to abandon its financial obligations to the Coyotes after five years and basically leaves the Glendale taxpayers holding the ball.

Recent Arizona court decisions state that a beneficiary of a governmental gift must provide back some sort of comparable benefit that is clear and reasonable. It is difficult to construe Glendale Hockey, LLC’s currently written proposed memorandum of understanding as exhibiting a reasonable benefit to the taxpayers. What exactly is Glendale Hockey, LLC offering in exchange for public support? Perhaps the ownership group would argue that the benefit is keeping the Coyotes in Glendale. However it is unclear whether such an argument qualifies as benefit that meets the necessary threshold to entitle Glendale Hockey, LLC to receive such support. Until further demonstrated, this lack of a clear and reasonable benefit may lead to another lawsuit in the near future; more litigation for a hockey club that has seen its fair share of courtroom action over the last year.

You can read more about the Goldwater Institute, by clicking here.

Wednesday, April 14, 2010

Jet Fans' Spygate Suit Heard by Third Circuit

Can a patron sue based on the lack of quality or fairness of a match? Maybe yes.

That question will be decided by the U.S. Court of Appeals for the Third Circuit in the latest twist to the infamous "spygate" affair. As many recall, this tempest concerned the actions of New England Patriots' employee who videotaped the Jet's defensive signals. The NFL, after fining the team and head coach Bill Belichick $500,000 and the team $250,000, thought the matter was over.

But not so fast. Two Jets fans (who are attorneys) pursued a novel legal claim. Carl Mayer and Bruce Afran, representing a class of Jets' season ticket holders, seek class action status and claim damages for the ticket price of the eight games played by the two teams in Giants' Stadium from 2000 to 2007. The trial court, in Mayer v. Belichick, 2009 U.S. Dist. Lexis 23052, concluded that none of the causes of action -- which included tortious interference with contract, deceptive business practices, breach of contract and quasi-contract -- resulted in any actual injury and thereby dismissed the claim. The appeals court, however, apparently considered the plaintiff-appellants' claims seriously enough to grant argument.

Imagine the potential effect of a positive ruling by the court. Could it open the door for groups of fans to sue for their money back based on one team reading the catcher's signals or surreptitiously seeing diagrams of basketball plays. A fascinating and (maybe horrifying)thought.

For more, read here.

Tuesday, April 13, 2010

Florida Coastal Sports Law Panel

This Friday morning, the Sports Law Society at my law school is hosting a panel titled, Exploitation of the Student-Athlete? Evaluating Bloom, Oliver, O'Bannon and Keller. While the title of the event speaks for itself, the panelists are, or have been, involved in high profile cases on behalf of amateur athletes and consist of: Rick Johnson, attorney for Andy Oliver and James Paxton; Jon King, lead attorney in the O'Bannon/Keller case; and MSU Law Professors Bob and Amy McCormick, who have written extensively on the commercialization of student-athletes and Bob served as a consultant in Maurice Clarett's lawsuit against the NFL. The panel will be moderated by Michael Huyghue, Commissioner of the United Football League, who has extensive experience as both a player agent and league front office executive. The panelists will share their expertise and practical experiences representing athletes against the NCAA and its member institutions and other commercial entities. I am also pleased to announce that each of the panelists is writing an article on the topic that will be published in this summer's edition of the Florida Coastal Law Review.

Saturday, April 10, 2010

Steelers - Personal Conduct Policy Update

Upon further research, I learned that the NFL currently has in place an internal policy to police NFL clubs for situations involving player discipline. So now the question becomes, not whether Commissioner Goodell can punish the Steelers, but, whether Goodell WILL punish the Steelers, and whether such action will remain private.

Friday, April 9, 2010

Benedict Alexander?

On March 6, 2010, boxing fans around the world bore witness to one of the most impressive junior welterweight title fight victories in recent memory, as undefeated Devon Alexander unified the WBC and IBF titles in devastating fashion by stopping Juan Urango in the eighth round live on HBO. The victory appeared to be the coronation of Alexander, who looked the part of a future pound-for-pound entrant as he seamlessly mixed uncanny defense with an aggressive, fan friendly style and accurate punching. Alexander’s rise, however, was quickly undermined by the bizarre ways of the WBC. Dan Rafael of reported this week that Jose Sulaiman, long-time head of the WBC, recently asked that Alexander resign as WBC junior welterweight champion. The reason: Alexander dared to express an interest in facing fellow titleholder Timothy (Desert Storm) Bradley, the undefeated WBO champion who many regard as the number one fighter in the junior welterweight division. To Sulaiman, Alexander’s expression of interest was equivalent to treason. As patently absurd as Sulaiman’s position appears to be, however, the question arises as to whether it is within the WBC’s power to strip Alexander of his title if he does not voluntarily resign...

For the full article, please go to:

Fighting Sioux Retired

Following a North Dakota Supreme Court ruling yesterday, it appears that the University of North Dakota "Fighting Sioux" mascot/nickname/moniker is now officially retired. The North Dakota Board of Higher Education voted months ago to retire the highly controversial moniker, but had been blocked in its efforts to carry out its retirement decision by a lawsuit filed by members of the Spirit Lake Sioux Tribe. The ND Supreme Court ruling effectively permits the Board of Higher Education to make the retirement determination at any time despite separate and ongoing settlement negotiations with the NCAA in connection with its 2005 "hostile and abusive" mascot policy. Following the Supreme Court ruling, the Board reiterated its previous decision to once and for all retire the logo. The Board sent a letter to UND President Robert Kelley to begin the logo/mascot transition immediately.

The "Fighting Sioux" nickname/moniker has engendered deeply divided and passionate debate in North Dakota and amongst the two primary Sioux tribes in the area, the Spirit Lake Tribe and the Standing Rock Tribe. Under the NCAA's policy that outlaws hostile and offensive mascots, University leadership can, despite the policy, still secure approval from local tribes and continue to use American Indian mascots. Florida State University has secured approval from the Florida Seminole Tribe and continues to use "Seminoles" and "Chief Osceola" as its mascot and nickname. The University of Utah has secured approval from the local Ute Tribe and continues to use "Runnin' Utes" as its nickname.

Under a settlement reached nearly three years ago, the University of North Dakota was given three years by the NCAA to secure approval of both the Spirit Lake Sioux Tribe and the Standing Rock Sioux tribe in order to continue to use the "Fighting Sioux" as its logo and nickname. UND was successful in gaining the approval of the Spirit Lake Sioux Tribe but had not been able to gain support of the Standing Rock Sioux Tribe although it had until November 2010 to do so. Notwithstanding, the Board of Higher Education has ended the controversy simply by voting to retire the controversial mascot. This decision was motivated in part by UND's desire to join the Summit League for purposes of basketball league play and the Conference's refusal to admit UND until it had settled its mascot issues.

Thursday, April 8, 2010

Should the NFL’s Personal Conduct Policy Also Apply to Franchise?

Several recent events have placed the Pittsburgh Steelers’ upcoming season in serious peril. Before even a single down of football is played, the Steelers, one of the NFL’s most storied franchises, is facing the potential loss of two impact players: franchise quarterback Ben Roethlisberger and Super Bowl XLIII MVP Santonio Holmes.

Roethlisberger, who last year was accused of sexually assaulting an employee at a Nevada resort as part of a civil complaint, is now facing similar allegations stemming from a recent alleged restroom altercation with a 20-year-old college student in a Georgia nightclub. Holmes, who has established a well-documented arrest record since he entered the league in 2006, is currently linked to an alleged assault of a woman at an Orlando nightclub. While the Steelers will have to deal with the reality of both Roethlisberger and Holmes potentially facing some type of discipline from the Commissioner’s Office and the resulting fan backlash, the franchise is lucky that the Steelers as an organization will not be subject to punishment as well.

One of the hallmarks of NFL Commissioner Roger Goodell’s tenure is the high priority he places on protecting the league’s public reputation. Goodell assumed the NFL’s top position during a time when many of its players were constantly portraying the league in a negative light. To help change the public’s perception of the NFL, Goodell spearheaded the creation of the NFL’s Personal Conduct Policy.

The currently implemented Personal Conduct Policy explicitly applies to players, coaches and “all others privileged to work in the National Football League.” Pursuant to this policy, “[a]ll persons associated with the NFL are required to avoid conduct detrimental to the integrity of and public confidence in the National Football League.” The policy allows for Commissioner Goodell to discipline both Roethlisberger and Holmes even if neither is found guilty of their respective allegations. Both can be disciplined even if there are no convictions because, as Goodell asserts, playing in the NFL is a privilege, not a right; therefore anyone subject to the policy may face serious consequences if he or she engages in conduct that is perceived to be detrimental to the integrity of the league.

As the policy is now written, Goodell cannot discipline individual franchises for allowing its players to engage in impermissible conduct. This is because the policy on its face does not explicitly empower Goodell to penalize a franchise. However, directly punishing a team is not unprecedented, as the Commissioner disciplined both head coach Bill Belichick and the New England Patriots in 2007 for spying on an opponent in an attempt to learn their signals. However the Patriots situation did not involve player discipline issues. Instead, the infraction committed by the Patriots was interfering with NFL rules; if the Commissioner attempted to take action against the Steelers, it would be punishment for the franchise’s inability to control its players’ off the field conduct, something that was never an issue when Dan Rooney oversaw the team. One characteristic that these situations do share, however, is that both deal with issues that perceivably impact the integrity of the game, something that the policy was implemented to protect.

While the current policy as written does not allow the Commissioner to discipline a franchise, implementing a new version that subjects franchises to the Personal Conduct Policy would easily fix this problem. If the league chooses to adopt such a new rule, the NFL will be empowering Goodell with sweeping authority similar to the power that was given to Judge Kenesaw Mountain Landis, Major League Baseball’s first commissioner. However, such authority was only granted to Landis when baseball was marred in the Black Sox scandal, arguably baseball’s darkest days. The only issue with providing Goodell this power is persuading franchises to go along with such a rule, and avoiding a challenge from the NFLPA through labor law and relevant provisions of the CBA.

Although it is highly unlikely that franchises would allow the Commissioner to possess such expansive power, this type of development would force franchises to become vastly more proactive and vigilant in keeping players out of troublesome situations. Franchises, now with more of a vested interest in supervising its players, would most likely step up preventive measures to avoid being subject to league discipline. Such measures may include routinely providing players with a personal security detail or heavily fining players for conduct that is adverse to the policy. However all of this must be done in the context of the current CBA to prevent a union challenge. While placing a responsibility on the franchise may sound like a good idea, Goodell most likely does not want to disturb league-owner solidarity with such a rule as the NFL prepares for a potentially prolonged negotiation with the NFLPA.

At this point most of Goodell’s attention is probably focused on negotiating a new Collective Bargaining Agreement with the players association. However, this emerging trend of Steelers players garnering negative headlines may merit his concern, as player discipline issues seem to be a persisting problem in the NFL despite the Commissioner’s best efforts.

At this point local authorities have turned over their evidence against Big Ben to the District Attorney’s Office and Holmes’ attorney maintains that the wide receiver will be exonerated. Goodell has already made it clear that he is dissatisfied with Roethlisberger's conduct and would meet with the star quarterback at a later time. Given Goodell’s comment, one would not be surprised if the Commissioner punishes both Roethlisberger and Holmes under the policy. What is not clear is whether Goodell plans on attempting to also directly discipline the Steelers. Again, a reading of the policy does not lend itself to penalizing organizations, so it may be a stretch to punish an entire team. However Goodell prides himself on safeguarding the integrity of the NFL, so the notion of the league amending the Personal Conduct Policy to allow for team discipline may not be as farfetched a prediction as it sounds.

More MLB Collusion in 2010? Unions' Claims Keep Coming

On Tuesday morning, the Associated Press reported that the Major League Baseball Players Association may file a grievance against Major League Baseball club-owners for allegedly colluding in the market to sign free-agent players during the 2009-2010 off-season. One reason why the MLB players union seems to believe that club-owners have engaged in collusion is because player salaries rose only by 1% last season, even though total league revenues have increased at an annual rate of 7.6% over the past three years .

Another reason why the MLBPA may be concerned about collusion is that MLB club-owners have a long history of colluding in the free-agent player market. For example, in my 2008 Wayne Law Review article, "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones," I discuss how three arbitration decisions from the 1980s found MLB club-owners to have colluded against players' rights. One esteemed labor arbitrator, George Nicolau, even found Commissioner Bud Selig to have been directly involved in collusion during the 1986-87 off-season (see pages 619-20).

With this week's newest collusion concerns, the MLBPA now has to decide whether to file a formal labor grievance over three separate, outstanding sets of claims:
  • Then, there are similar allegations from the 2008-09 off-season, over which the MLBPA, one year after announcing its concerns, still has not filed a grievance.
(Cross-Posted on Sports Judge Blog)

Wednesday, April 7, 2010

Yale Law School Panel on Sports and the Law: Current Issues

Next Tuesday, April 13th, Yale Law School will be hosting a panel discussion titled, "Sports and the Law: Current Issues."

I am honored to be moderating the event, which has some terrific speakers. A wide-range of topics will be covered, including compensation for ex-college athletes and retired athletes; American Needle v. NFL; new media and licensing issues; the effectiveness of revenue sharing, salary caps, and luxury taxes; age limits, drafts, and other restrictions on player eligibility; player safety and neurological issues; personal conduct policies and player discipline, and strategies employed by leagues and players' associations to lobby Congress and respond to Congressional inquiries/threats.

The panel will take place from 6:10 to 8:00 p.m. and is open to any student (please note: a student ID, from any school, is required; the event is off-the-record and closed to non-participating media).

Here are the details:

Yale Law School

Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports and the Law: Current Issues

April 13 2010 6:10 to 8:00 p.m.
Room 120


MICHAEL MCCANN (Professor at Vermont Law School; Legal Analyst at
Sports Illustrated)


HENRY ABBOTT (Senior Writer,; Founder of TrueHoop, a blog dissecting the people, statistics, business, and bric-a-brac of the NBA)

KEN GORDON (Counsel, ESPN, Disney, and ESPN Media Networks)

JASON LEVIEN (General Counsel and Assistant General Manager, Sacramento Kings; Adjunct Professor of Sports Law, UC Berkeley Law School; former NBA and NFL agent)

TIFFANY MORRIS (Legal Counsel, The Kraft Group, New England Patriots, New England Revolution, Gillette Stadium, and Patriot Place)

CHRIS PARK (Vice President of Labor Economics and Labor Counsel, Major League Baseball)

Special thanks to Alex Kardon, Co-Chair of the Yale Sports and Entertainment Law Association, for putting this event together. For information on attending, please contact Alex at alex.kardon[at] For information on nearby public parking and how to get to Yale Law School, click here.

New York High Court Limits Primary Assumption of Risk to Athletic Participation

Yesterday, the New York Court of Appeals (the state's highest court) published Trupia v. Lake George Central School District. The case involved a claim that of negligent supervision; plaintiff, a student, fell off a banister and sued his school district. The defense responded with primary assumption of risk, a doctrine that has continued to plague plaintiffs in negligence cases, particularly involving injuries sustained during athletic participation.

The Court narrowed the availability of primary assumption of risk significantly, suggesting that, in the aftermath of the state's move to comparative fault, it should only be available in athletic injury claims. According to the Court,

The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in "facilitat[ing] free and vigorous participation in athletic activities" ...

We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation...

No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances. The injury-producing activity here at issue, referred to by the parties as "horseplay," is not one that recommends itself as worthy of protection, particularly not in its "free and vigorous" incarnation...

This decision brings New York law in line with developments in other jurisdictions limiting the availability of primary assumption of risk in non-contact sport situations. See my post, "Is Potato Sack Racing a Contact Sport?", for further discussion.

SLA and Sullivan & Worcester Panel: "American Needle, Case in Point: Is the NFL a single entity?"

I look forward to participating in this panel discussion on American Needle v. NFL and its potential impact on professional sports. The event, which will occur on Wednesday, April 28, is sponsored by the Sports Lawyers Association and Sullivan & Worcester, which will host the panel in its Boston office. The panel is open to the public, but be sure to click on the RSVP button to reserve a spot. Great work by Jordan Ablon, the Labor Counsel for the City of Boston and Mayor Menino, in putting this event together.

"American Needle, Case in Point: Is the NFL
a single entity?"

April 28, 2010

Program: 6:00 - 7:00 pm
Reception: 7:00 - 8:00 pm

Sullivan & Worcester LLP
One Post Office Square, 21st Floor
Boston, MA 02109 View Map

Click to RSVP by April 23

The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion of American Needle v. NFL and the potential impact the Supreme Court decision may have on the sports industry. Our panel will include:

For more information, please contact Katie Potter.

Tuesday, April 6, 2010

Traumatic Brain Injury Symposium at U Baltimore Law School

Professor Dionne Koller of the University of Baltimore School of Law passes along this announcement of what should be an engaging symposium on traumatic brain injuries in sports:

The University of Baltimore School of Law and its Center for Sport and the Law is pleased to present Traumatic Brain Injury: Implications for Sport and Health on Thursday, April 22. This half-day event will examine the effect of traumatic brain injuries on athletes at all levels, from youth through professional. Dr. Ann McKee, noted expert on the issue of traumatic brain injury, will deliver a lunchtime keynote address. A tentative agenda is below.

There is no charge to attend the symposium, but pre-registration is suggested as seating is limited. Online registration is now available! Information about parking at the University of Baltimore is available on the University's Web site.

10-10:30 a.m. Welcome and Overview Student Athletes and Brain Injuries: The Legal Perspective
Phillip J. Closius
Dean, University of Baltimore School of Law

Dionne Koller
Assistant professor and director, Center for Sport and the Law
University of Baltimore School of Law

10:30 – 11:45 a.m. A Medical Perspective on Traumatic Brain Injury in Contact Sports
Dr. Leigh Ann Curl (invited)
Head orthopedic surgeon, Baltimore Ravens

Dr. Kenneth Fine
Team physician, The George Washington University varsity sports teams and
District of Columbia Public Schools

Dr. Thom Mayer
Medical director, NFL Players’ Association

Dr. Yvette L. Rooks
Team physician, University of Maryland Terrapins

11:45 a.m. – 12 p.m. Lunch

12 – 1 p.m.Afternoon keynote remarks: The Data on Football
Dr. Ann McKee
Boston University School of Medicine

1 – 1:15 p.m. Break

1:15 – 2:30 p.m. Protecting Current and Former Athletes
Benjamin Boscolo

Darryl Conway
Assistant athletic director for sports medicine, University of Maryland College Park

Mel Owens
Namanny, Byrne & Owens
Former linebacker, University of Michigan and Los Angeles Rams

Stan White
Assistant football coach, Gilman High School
Former linebacker, Ohio State University and Baltimore Colts

The NFL and Workers' Compensation

Alan Schwarz of the New York Times offers an interesting story today regarding a workers' compensation claim recently filed in California by the wife of former NFL lineman Ralph Wenzel, effectively asserting that Wenzel developed dementia as a result of his eight year career in the NFL. Schwarz reports that around 700 workers' compensation claims have been filed by former NFL players in California -- whose workers' compensation system is available to anyone that played a single game in the state -- with most of the claims to date relating to orthopedic injuries. If successful, Wenzel's claim would mark the first time that a player has received workers' compensation for the long-term effects of head trauma, and would open the door for hundreds of similar claims to be filed by other former players. Experts predict that the NFL could be facing $100 million or more in potential future liability should Wenzel's claim succeed.

Monday, April 5, 2010

A Different Take on the Expansion of the NCAA Tournament to 96 Teams

While most of the college basketball fans in the country have been finalizing their "why I hate Duke" speeches, the NCAA continues to move towards expanding the tournament from 64 to 96 teams. The proposed expansion has been met with an avalanche of criticism. Critics claim that a larger field will devalue the regular season and the conference tournaments, dilute the NCAA tournament field, destroy office brackets, and all but ruin March Madness. I'm not convinced that expanding the tournament is a good idea (though I do not think it will destroy the tournament), but I think the NCAA has a more subtle concern than the negative reaction from fans and journalists: Adding 32 teams to the tournament may have a real impact the NCAA's position in antitrust lawsuits, including the O'Bannon-class action suit currently pending in federal court.

I have a new column up in the Huffington Post that takes a closer look at the possible antitrust implications of a 96-team tournament. Here's an excerpt:

Judicial deference to the NCAA is not unconditional. While some commentators have been screaming for years that the NCAA cares about money, not amateurism, courts have continued to defer to the NCAA in antitrust cases when the NCAA makes rules governing student-athletes that are arguably related to maintaining amateurism and furthering academic ideals. That deference could fade if the NCAA makes decisions--like expanding the tournament-- that seem to put the "athlete" ahead of the "student" in student-athlete. At a minimum, it will give ammunition for plaintiffs to use in antitrust cases--and their quest to obtain treble damages-- and give judges and juries a reason to more strictly scrutinize NCAA rules.

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

Sunday, April 4, 2010

NY Times Sell Portion of its Stake in Boston Red Sox

With the Red Sox playing the Yankees tonight at Fenway Park, it's a reminder that earlier this week, the New York Times sold a portion of its minority ownership stake in the Red Sox. Boston College Law Professor Brian Quinn discusses the sale on M&A Law Prof Blog.

International Sport Law & Business Conference (ISLBC) in Istanbul

Our friend Matt Mitten, a professor at Marquette University Law School and director of the National Sports Law Institute, will be speaking about American Needle v. NFL at the International Sport Law & Business Conference, to be held in Istanbul on September 6 and 7. The conference is being organized by a number of persons, including Tassos Kaburakis, director of the Southern Illinois and University Edwardsville Sport Management Graduate Program.

For more details, click here or see Geoff's earlier post on abstract submissions for the conference.

Update: My bad: there are two conferences, not one. Here's Tassos Kaburakis:
Hi Mike and everyone. Quick clarification, as there's a lot going on in our field and in Istanbul this year:

Matt Mitten, Jim Nafziger, and other good colleagues will be speaking in the May 13-14 international sports law symposium hosted by the Istanbul University Comparative Law Center and the Turkish National Committee of the International Association of Legal Science. For convenience, here is the May program:

The broader scope and more involved/open to participation International Sport Law & Business Conference (ISLBC) we are organizing with our Turkish colleagues is set for September, and a new Call is available through the website:

I have been truly amazed by the interest and the quality level as the weeks evolve, and so far we have had many esteemed colleagues from the US, Europe, and beyond submit abstracts and express their desire to attend. Over April and May we will progressively announce conference presenters and keynote panelists. The sneak preview is that the latter have been key in ADR, CAS, US/International sport governance, and shaping legal theory, research, and strategy over the past 30+ years. With everything Istanbul offers this year and especially in September, one needs to seriously consider this opportunity. Keep checking the website for more ISLBC updates and September events news. More soon. Keep enjoying good work and a fantastic spring season.

Friday, April 2, 2010

Introducing Guest Blogger Jeff Levine

We're pleased that Jeff Levine will be a guest blogger for the next two weeks. Along with his legal practice, Jeff currently serves as a staff writer for the Business of Sports Network. He is a graduate of Tulane University Law School, and previously served in legal positions with the Cleveland Cavaliers and the Phoenix Coyotes. We look forward to his contributions.

Thursday, April 1, 2010

Sports and politics, mixed

A recent study by National Media, Inc., a GOP firm (conducted by Scarborough USA, a joint project of Nielsen and Arbitron) found that dedicated sports fans tended to vote Republican than Democrat. The strongest Republican support was among fans of the PGA, college football, and NASCAR; strongest Democrat support was among fans of the NBA, WNBA, men's and women's tennis, and WWE (!). Fans of baseball, the NFL, and college basketball leaned Republican, but in somewhat closer numbers. The poll is based on 218,000 surveys conducted between August 2008 and September 2009.

Based in part on my interest in speech at sporting events, the connection between politics and sports (and sports fans) is of interest to me. The (likely) political make-up of the fan base at a game says a lot about what sorts of speech fans will tolerate from other fans at the game.

But I admit to being a bit surprised by the results, particularly the breakdown by individual sport. Although I probably should not be. Presumably white men make-up a big portion of sports fans and that group now tends to lean Republican. Conversely, perhaps women are more likely to self-identify as Democrats but less likely to be die-hard sports fans? There are presumptive geographic lines with some of the strongly GOP sports (NASCAR, bull riding) that map political lines. The college football and basketball numbers also are interesting. If (as I believe polling shows--I could be wrong) people with college degrees (or higher) lean Democrat, this poll suggests the people watching and rooting in those sports did not attend the colleges they are rooting for. Again, not a surprise, since the fan base for, say, Duke basketball or Florida football is broader than Duke student/alumni base. And a sport like college football again has geographic lines--it is probably most popular in the South and non-urban Midwest)--that map political lines. Finally, the size of the gap is surprising; if you look at the breakdown, Republicans enjoy a double-digit advantage among fans of most major sports (except baseball and pro basketball).

Maybe I just need a bigger circle. My closest friends and family all tend to be liberal Democrats who love sports.

Next Up in Selig's Free Stadium Game: Tampa Bay?

They've got a dynamic offense, a great new closer, and a 2008 World Series birth under their belt. Next up for the Rays: a new stadium?

According to the Tampa Bay Online, MLB Commissioner Bud Selig might involve himself in the stadium negotiations between Rays ownership and their municipality. (Geoffrey Rapp, Michael McCann and I were cited in this article).

This would be nothing new for Selig, who just last year helped Florida Marlins owner Jeffrey Luria to obtain a new publicly funded stadium.

I have written extensively about how professional sports leagues maintain an under-supply of teams to ensure public stadium financing. For example, in my law review article Sports and the City: How to Curb Sports Teams' Demands for Free Public Stadiums, I explain how the Florida Marlins pressured their municipality into providing huge subsidies by threatening to otherwise move to Las Vegas.

It will be interesting to see what develops in Tampa Bay. Until now, Rays owner Stuart Sternberg has not threatened franchise relocation. It is not clear, however, that Selig would follow the same classy approach.

(Cross-posted on SportsJudge Blog)