Sunday, May 30, 2010

Clip, Clip, Baby!

The intersection between Sports and Bioethics has grown geometrically since I argued on behalf of Eddy Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of his employment. ESPN the Magazine recently devoted almost an entire issue to how genetic research might be changing the future of sports. Now Summer Johnson in reports on the rather uncomfortable link between March Madness and vasectomies. Apparently, there is a high incidence of men choosing to have this elective surgery during tournament time. What better excuse to sit for twelve hours on the couch than a doctor’s orders to rest with a cold compress between your legs. Indeed, as Summer notes, some doctors at The Oregon Urology Clinic market the procedure with Dick Vitale advising prospective patients to "take care of the equipment and lower your seed for the tourney.” Ouch.

Next year, the NCAA plans to expand the tournament to 68 teams, maybe even to 96, adding perhaps another weekend to the event. We thought originally the motivation was money since that seems to be the driving force behind many of the decisions of the Tsars of amateur athletics. Now we know it’s zero population growth.

Cooperstown Symposium on Baseball and American Culture

The 2010 Cooperstown Symposium on Baseball and American Culture will be held next week, June 2-4, at the National Baseball Hall of Fame in Cooperstown, for those of you who find yourselves in upstate New York. The program is here. I presented here a few years ago and may try to do it again next spring (maybe more on the judge/umpire thing); it is a great time. Because everyone speaks the common language of baseball, the conference is truly multi-disciplined; we all are able to talk to one another. Plus, the last night includes a barbecue and a game of town ball (an early predecessor of what we know as baseball).

Baseball and Law in Chicago

That was a great couple days in Chicago for the Law and Society Association Annual Meeting. I wish I could have stayed an extra day or two, but family calls. Otherwise, I was able to run along the lake, eat Chicago-style pizza, and spend an almost-perfect afternoon at the Place Where God Intended Baseball To Be Played (even if the Cubs lost because, well, they suck).

Our roundtable, Judges as Umpires, Umpires as Judges: Rethinking the Metaphor, went very well. We had a very good audience (particularly considering it was at 8:15 a.m. the first day of the conference) and a good conversation about sports, the nature of rules, and the nature of judging and adjudication. 
I hope we might publish an edited/annotated transcript of the conversation.

But I do need a judge's ruling on this one. At the game on Friday, I saw a number of t-shirts reading "[Opposing Latino player] does my lawn," with an outline of a person in a straw hat pushing a lawnmower. So, for example, I saw a shirt in Cardinals colors that said "Zambrano does my lawn" and one in Cubs colors that said "Ozzie Guillen does my lawn." Is there any way of understanding those shirts that is not obnoxious and insensitive, if not outright offensive?

New Sports Illustrated Column on NFL Network and Cable Industry

I had the Viewpoint Column on a few days ago, and my piece centered on the consumer and antitrust implications of the legal and business battles between the NFL and major cable companies. Here's an excerpt:

* * *

Some of these fans can still watch those contests because every NFL Network game that sells out -- and all 32 previous ones were sold out -- is simultaneously broadcast on free, over-the-air TV in the primary market of the home and away teams. But those fans who live in non-primary markets (generally defined as those living outside a 75-mile radius of the team's stadium) are out of luck. Their only option, should it be available to them, would be to switch from a cable provider to a satellite provider that offers NFLN. For a variety of reasons, possibly including convenience, cost and reliability, those fans may prefer to keep their cable provider.

There are about 56.3 million households with NFLN, a significant but underwhelming number when considering that the two-year-old MLB Network already has 55.3 million households, while the three-year old NHL Network, which offers coverage of a considerably less popular league than the NFL, has approximately 34 million. The NFL, of course, would like more homes to have its channel, which the league spent in excess of $100 million developing. But the league has encountered difficulties in convincing cable companies to include NFLN in its channel packages, particularly basic packages. The major holdup has been over price.

* * *

The NFL can offer several responses to those lines of critique. For one, games aired on NFLN are broadcast nationally and thus have a wider viewership than regionally-televised games aired on free, over-the-air networks. The NFL can also highlight that while games aired on NFLN require payment to a cable or satellite provider, they are simultaneously broadcast on free, over-the-air networks (provided the games are sold out) in the home and away teams' primary media markets.

Thursday, May 27, 2010

New Sports Illustrated Column on Implications of Floyd Landis' Allegations against Lance Armstrong

I have a new column on on the potential legal impact of allegations by Floyd Landis that Lance Armstrong engaged in doping and possibly encouraged and facilitated other riders to dope. Here's an excerpt:

Why would law enforcement authorities listen to someone of questionable character like Landis?

For one, Landis would be breaking the law by knowingly lying to federal government officials.

Second, sometimes persons with checkered pasts and suspicious motivations are telling the truth and sometimes they are the only persons willing to tell the truth. Just recall when Jose Canseco was widely ridiculed for claims in his book, Juiced Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, that Mark McGwire, Jason Giambi and other players used steroids. While Canseco's colorful past and financial motivations for book sales gave legitimate reason to question the accusations, he appears to have been telling the truth. Perhaps if he had been taken more seriously earlier in time, the steroid scandal could have been addressed more effectively.

In addition, it is the job of law enforcement and other investigatory officials, including special agent Jeff Novitzky, to assess the credibility of Landis and how well his claims would withstand courtroom scrutiny. Clearly, if Landis is the central accuser of Armstrong, Armstrong could attack Landis on multiple grounds. But should the government conclude that Armstrong broke the law, it will try to find additional sources of evidence and testimony that support Landis's claims but lack his vulnerabilities.

* * *

What is the legal significance of USPS sponsoring Armstrong's team?

In all likelihood, the sponsorship by USPS, an independent agency within the Executive Branch of the federal government, will not impact the legal duties of Armstrong or the team. Sponsorship of a racing team probably does not convert the team into an entity that acts on behalf of the government, nor is it likely to turn decision-makers of the team into government agents. Therefore, even though Armstrong was a part-owner and principal decision-maker for Tailwind Sports, which managed the USPS team and received the sponsorship money, his main legal concerns probably center on accusations of illegal distribution.

It is worth noting, however, the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement, 18 U.S.C. §§ 648. The statute prohibits custodians of public funds from misusing those funds and carries up to a 10-year prison sentence. The fact that USPS does not draw from taxpayer funds may not help Armstrong, since the statute does not distinguish taxpayer public funds from non-taxpayer public funds.

Still, whether Armstrong's individual control of the funds would be sufficient to trigger scrutiny, and whether promotional public funds fall within the purview of the statute are complicating factors. At this stage, therefore, it seems unlikely that the USPS sponsorship will impact the legal analysis.

To read the rest, click here. For an excellent commentary by Alan Milstein on Landis' allegations, see On Floyd Landis: What Makes Sports and Sports Law Interesting.

Wednesday, May 26, 2010

Law and Society: Judges as Umpires, Umpires as Judges

For those of you attending Law and Society this weekend: On Thursday morning at 8:15, I will be doing a roundtable discussion called Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. We will explore the silly judge-as-umpire metaphor, instant replay, the nature of judging and sports officiating, and other links between judging and sports. The panel includes moderator Mark Graber (Maryland), Mitchell Berman (Texas), Chad Oldfather (Marquette), Aaron Zelinksy (recent Yale grad and occasional guest blogger here), and me.

It should be a great discussion and I hope any early-risers will stop by. I hope to post the audio here next week.

Plus, don't forget Happy Hour on Thursday evening. And on Friday afternoon I can be found at Wrigley Field for the first time since 2001--far too long.

Monday, May 24, 2010

Sports Illustrated column on American Needle v. NFL decision

I have an column on today's big decision. Here's an excerpt:

* * *

The NFL's argument encountered significant resistance during oral arguments on Jan. 13. Neither the conservative nor liberal justices seemed to buy the NFL's reasoning, which was inconsistent with precedent and also of questionable logic.

Bear in mind, NFL teams do not necessarily collaborate on licensing contracts; in fact, prior to 1963, they entered into their own licensing contracts. They have also sued each other over this very issue. During the 1990s, Dallas Cowboys merchandise sales far eclipsed those of other teams. Cowboys owner Jerry Jones, however, had to equally share that revenue with every other team owner. In 1995, Jones brought a lawsuit against his fellow owners seeking independence to enter into his own licensing contracts. In response, those owners countersued him. While they would eventually reach a settlement, Jones and other NFL owners certainly did not seem like a single entity at that time.

. . . the decision sends a message to similar professional sports leagues, namely the NBA and NHL, that their own aspirations for single entity recognition are just as unlikely to materialize -- at least through the legal system. Indeed, if leagues would like to avoid Section 1 scrutiny, they can still turn to Congress for Section 1 exemptions. They have a track record there of some success: the leagues persuaded Congress and President Kennedy in 1961 to receive a Section 1 exemption for their national TV contracts. Perhaps they can make their case in Congress for other types of Section 1 exemptions, but it's a case that won't go through the Supreme Court.

More on the Supreme Court's Ruling in American Needle v. NFL

As Nathaniel Grow just posted, the Supreme Court ruled today 9-0 to overturn the Seventh Circuit’s ruling in American Needle v. Nat’l Football League, which had held that the single-entity status of a sports league should be viewed "one league at a time" and "one facet at a time."

In a concise, 23-page opinion (PDF), the Court explained that the NFL is not a single entity because “the NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action.”

This reasoning is similar to that advanced by Michael McCann, Gabe Feldman and myself in recent law review articles (see here, here, and here).

The court further stated that "[i]f the fact that potential competitors shared profits or losses from a venture meant the venture was immune from [Section 1 of the Sherman Act], then any cartel could avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing product."

I have posted a full discussion of this ruling and its implications on Above the Law, here.

As far as the case's likely outcome upon remand, I note:

[W]hether American Needle will ultimately prevail on the merits remains far from settled. As Rutgers School of Law-Camden professor Michael Carrier noted in a recent law review article, defendants have won 221 of the past 222 cases that have involved a court’s final determination under the Rule of Reason (link to Professor Carrier’s article)

In addition, even if the NFL clubs’ licensing practices have led to some anti-competitive effects, league-wide trademark licensing might also produce some pro-competitive benefits by reducing the transaction costs of obtaining licenses to use all club logos on a single piece of merchandise (link to my law review article).

Breaking News: Supreme Court Unanimously Reverses 7th Circuit in American Needle

The United States Supreme Court released a unanimous opinion this morning reversing the Seventh Circuit's decision in American Needle v. NFL. The opinion is available here.

Saturday, May 22, 2010

On Floyd Landis: What Makes Sports and Sports Law Interesting

What makes Sports and Sports Law so interesting is how its controversies frequently serve as a microscope into the human condition. Take the case of Floyd Landis. The cyclist from Amish country in Pennsylvania’s version of the Bible belt had won the 2006 Tour de France, returned as a small town hero, and then was stripped of his title after accusations of doping. Offering his roots as the best evidence of his integrity, Landis spent hundreds of thousands of dollars contesting the accusations, accusing the French officials of anti-American bias: “All day long I heard him shout so loud, crying out that he was framed.”

Now he admits everything, and accuses everyone else in the sport of doing the same.

I almost always get fooled by these folks. Whether it’s Mark McGuire on Sixty Minutes or Bill Clinton pointing his finger denying he had sex with “that woman,” or Colin Powell showing us where the WMDs are hidden, or Justice Clarence Thomas claiming Anita Hill’s accusations were a “high tech lynching.” I just can’t imagine how someone has the chutzpah to look millions straight in the eye and flat out lie. (Larry Craig I never believed.) What kind of skill does it take to be so convincing when inside they must know they will eventually be hoisted by their proverbial own petards? And when will I learn that human beings are so talented at being deceitful?

Thursday, May 20, 2010

New Sports Illustrated Column on Implications of Dr. Anthony Galea Prosecution

I have a new column on the charging in both U.S. and Canadian courts of Dr. Anthony Galea, a Canadian doctor who is alleged to have provided illegal performance-enhancing drugs to many star athletes in the U.S. Here is an excerpt:

* * *

In a way, though, Galea isn't the only person on trial. Athletes who have received treatment by Galea have reason to worry that their names will be publicly revealed. Implication in the case could prove disastrous. For one, it could trigger sanction by athletes' teams and leagues in the form of suspensions or fines. Companies with which athletes have lucrative marketing and endorsement deals could also void or suspend contracts based on those contracts' morals clauses.

Most concerning, implicated athletes could themselves be criminally charged with purchasing and using illegal drugs. Granted, such athletes might be able to minimize their exposure to criminal sanction through proffer agreements, which, if offered by prosecutors, would essentially entail the athletes telling the authorities what they know about Galea in exchange for not being prosecuted. Such agreements, however, would not protect those athletes from punishments by leagues and endorsed companies.

* * *

Athletes could also be exposed in the event that Galea enters into a plea deal with prosecutors. Such a deal would be more likely if the evidence against him proves overwhelming and airtight. Of additional concern to athletes, a high-profile case of this kind is susceptible to leaks. While prosecutors have a duty to keep protected information confidential, leaks have a way of happening.

* * *

'Spygate' Class Action Suit Dismissed as Third Circuit Rejects Ticketholders' Lack of 'Honesty' Claim

A group of New York Jets' season ticketholders lost their attempt to claim damages for the New England Patriots secret videotaping of the Jet's defensive calls during the 8 games played at Giants' Stadium from 2000-2007. Citing the fact that "honesty" is not a cause of action for a ticketholder who merely has a license to "enter" the stadium attend a game, the U.S. Court of Appeals for the Third Circuit, dismissed the claim, affirming the ruling of a lower court. For my prior article, click here.

The ruling in Mayer v. Belichick is not surprising, but the legal analysis provides some interesting insights. Although the panel, in a unanimous opinion by Judge Robert E. Cowan, ultimately concluded that no damages can be ascertained from the suit, the discussion focuses far more on the nature of a ticket license, rather than damages. Although he notes that the case is unusual and possibly an case of first impression, his opinion, joined by Judges D. Michael Fisher and Gene E. K. Pratter, weave a fascinating interplay with other suits by ticketholders and the nature of a sports ticket license.

Noting that the complaint failed to state a "legally cognizable protected right, interest or injury" warranting dismissal under FRCP 12(b), the court did display trepidations about unfettered powers of licensors in controlling and limiting rights of ticketholders. "Courts all over the country have struggled to deal with litigation arising out of the often complicated ticket arrangements between teams and their fans," the opinion noted, adding "ticketholders may have legitimate reasons to be upset at the manner in which they are treated." Judge Cowan cited a series of cases involving claims for poor performance and rules violations as closely analogous to this case. In two specific cases (one from the 7th Circuit and the other from a New York appellate court, the conclusions pointed to the limiting language of ticket as providing only entry to the race and nothing else. In a pithy quote, the panel used the language of the 7th circuit, stating that if fans are not happy with the [Chicago] Cubs, they can "head south to Comiskey Park" and watch the White Sox. Additionally, he added, with some justification, that permitting this lawsuit could permit suits by ticketholders over "blown calls" and "improper acts of teams, coaches, referees, and others."

Although the panel noted the lack of damages, it focused more on the scope of the license. I think that if Mayer et al were able to show damages (say, from contract fraud or business torts), the result would be the same. True, determining actual damages without a trial would be highly speculative, but I think that the lack of damages was a side issue.

That raises the question of the lawsuit's viability if the license was more open-ended. Say, it permitted entry to the facility and provided a "a professionally-played match" (of course, a team would never do this, but worth a thought). But what about legislation? What if a state passed a "Sportsticketholder Protection Act" prohibiting "unduly" limited licenses on tickets as unconscionable and mandates that the event must be of "reasonable quality commensurate in the sport." That would make some plaintiffs' lawyers salivate.

For an article in, click here.

Monday, May 17, 2010

The Brian Cushing Revote: Defending the Associated Press

Last week, Brian Cushing became the first player in NFL history to win the Associated Press Defensive Rookie of the Year Award...twice. Cushing won the award back in January with 39 of the possible 50 votes, but the AP called for a revote after it was recently disclosed that Cushing had tested positive at the beginning of the NFL season for hCG, a fertility drug banned by NFL Policy on Anabolic Steroids and Related Substances (the same drug that led to Manny Ramirez’s 50-game suspension by MLB). After the revote, Cushing won the award again, this time with a total of 18 votes.

The revote has caused quite a stir and raises a lot of interesting issues: Why was Cushing allowed to play for the entire season after he tested positive? Is the NFL drug policy ineffective? Was Cushing’s defiant—and, at times, unusual— denial the best public relations move? What is Should the AP have held a revote? Should Cushing have been disqualified from the revote? Why did 18 members of the media (the ”Cushing 18”) re-vote for Cushing? Why did one voter change his vote to Cushing in the revote? Did the Cushing 18 send the wrong message if they voted for Cushing as a protest against the AP’s decision to hold a revote?

Much of the discussion has focused on criticizing Cushing, the NFL, the AP, and the Cushing 18, and I do not want to pile on these attacks. Instead, over at the Huffington Post, I have a new column up that defends the AP’s decision to hold a revote. Later in the week, I will have a post up defending the NFL and its drug policy. Here’s an excerpt of the defense of the AP:

Why the opposition to allowing a revote to strip a player of an award when we discover--well after the season has ended--that the player achieved the award while using a banned substance? Is this really any different than the International Olympic Committee ("IOC") stripping an athlete of a medal when it discovers--well after the games have ended--that the athlete was doping during the competition? Or the NCAA taking away wins or national championships from a team when it discovers--well after the season has ended--that one of the players on the team was ineligible?
Will this precedent open the door to re-votes in the future? Perhaps, but why is that a bad thing? If the concern is that we'll never have any finality, then we can institute a statute of limitations--all awards are final unless challenged within 3 years. But, don't we want the ability to strip athletes of awards and achievements if we later learn that they earned them while using performance-enhancing (or related) substances? The AP's process may not have been perfect, but we can protest an imperfect process in ways that don't honor those who use banned substances.

You can find the full column here.

You can follow me on twitter here.

Sunday, May 16, 2010

The Sports Commentary Interview of Jay Reisinger

Nice interview by The Sports Commentary of sports lawyer Jay Reisinger, who has represented Andy Pettitte and Sammy Sosa, among other professional athletes, and who's recently started a new blog, with an emphasis on sports law.

Here's an excerpt of Jay's interview:
With respect to a contract dispute, it is important to convey a message of “fairness” with respect to an athlete’s salary requests. In almost every case, athletes are only seeking to be paid fairly within a sport’s salary structure. In this regard, athletes are just like anyone else in the job market. People in other professions want to be paid in line with similarly situated employees, just as athletes do. It is important for an athlete’s representative to softly convey this message.
To read the rest, click here.

Thursday, May 13, 2010

Can Bud Selig invoke Best Interests o the Game Clause to Seize Control of Texas Rangers?

The basic issue here is that Major League Baseball seems to want a prospective ownership group led by Nolan Ryan and Attorney Chuck Greenberg to purchase the Rangers, which have been owned by Tom Hicks (who last year defaulted $525 million in loans) and a group of lenders, but Hicks et al., are opposed to the sale.

Could MLB sidestep Hicks and the lenders? Zach Lowe of The American Lawyer considers that in a new piece. Here's an excerpt:

* * *

If the Phoenix Coyotes bankruptcy was the first major test of whether business interests and courts can override the power of professional sports leagues, the sale of the Texas Rangers to a consortium headed by a Pepper Hamilton partner is shaping up to be an even more dramatic sequel.

* * *

The vote to reject the Greenberg deal has set up a possible mega-clash between the lenders and Major League Baseball, which is being advised by Jordan Yarett of Paul, Weiss, Rifkind, Wharton & Garrison. (Yarett declined to comment today). Selig recently sent a letter to the lenders in which he threatened to invoke a rarely-used rule allowing him to take extreme steps in the "best interests of baseball." Among the possible steps: Selig could seize the Rangers, invalidate the creditors' liens on Hicks and hand the team over to the Greenberg group for the agreed-upon price, the Sports Business Journal reports. Selig has used the "best interests" clause in an ownership transition before--in 2001, when MLB purchased the Montreal Expos as part of a complicated series of deals involving three teams. (The league eventually moved the Expos to Washington.)

And if Selig uses this option? The lenders are prepared to sue and file an involuntary bankruptcy on behalf of the Rangers, the SBJ reports. The documents are prepared already, the story says.

* * *

"I think Major League Baseball has a preferred set of owners, and that purchase price isn't the only consideration," says Michael McCann, a professor at Vermont Law School who specializes in sports law and contributes often to Sports Illustrated. McCann says he would expect creditors to pursue a court order temporarily barring any transfer of ownership if Selig does invoke the "best interests" clause.

* * *

To read the rest, click here. For additional coverage, see Daniel Kaplan's commentaries in the Sports Business Journal.

DC Bar Hosts "Collective Bargaining in the Sports Industry in 2010"

If you're in the D.C. area, there will be a terrific sports law event on Thursday May 20 at the Nationals Park hosted by the D.C. Bar:

The Arts, Entertainment, Media, and Sports Law Section In Co-sponsorship with the Labor and Employment Law Section and the Litigation Section Presents an Evening Program

Collective Bargaining in the Sports Industry in 2010: An Evening to Appreciate, Debate, Discuss, and Enjoy All Things Baseball

A panel of experts from the Commissioner’s Office, the Players’ Association, and the World Umpires Association will discuss labor law and collective bargaining and the outlook for the national pastime as the players’ collective bargaining agreement is set to expire in 2011. Afterwards, attendees and panel members are invited to attend the game between the Washington Nationals and the New York Mets.

Date: Thursday, May 20, 2010

Time: 5:15 p.m. - Panel ends at 7:00 p.m., game begins at 7:05 p.m.

Location: Nationals Park, 1500 South Capitol Street, SE, Washington, DC 20003 – Navy Yard Metro Station


Steve Gonzalez, Counsel – Labor Relations, Major League Baseball

Dan Halem, Senior Vice President and General Counsel, Labor – Major League Baseball

Brian Lam, General Counsel, World Umpires Association

Dave Prouty, Chief Labor Counsel, Major League Baseball Players Association


Dan Kaufman, Vice President & Counsel, Perennial Sports and Entertainment

To register for this program or for a printable registration form, please Click Here

For more information, please Click Here

Tuesday, May 11, 2010

More on Justice Department's Inquiry into One-Year Renewable Athletic Scholarships

A couple of days ago, we blogged about the report by Libby Sander of Chronicle of Higher Ed on the Justice Department investigating the NCAA's rule on one-year renewable scholarships for student-athletes. Providing additional commentary and perspective, David Moltz and Doug Lederman of Insider Higher Ed have a story titled "Are Athletic Scholarships Fair?". They interviewed several persons including me for their story. Here are some excerpts:

* * *

Legal experts have relatively little to go on in interpreting what the Justice Department may be after. But to the extent they are looking at the NCAA's scholarship policies through an antitrust prism, the sorts of questions they are likely to be asking are the following: Do colleges, acting as a group, impede competition by forcing one another to offer athletic scholarships in this manner? To put it another (potentially more controversial) way, are colleges essentially fixing the price of what they give athletes for their services?

"Maybe if there was no NCAA rule for one-year scholarships, some colleges would offer four-year scholarships instead,” said Michael McCann, a professor at Vermont Law School and legal analyst for Sports Illustrated. “If a college is competing for a player, then that could be an appealing thing. From an athletic director’s point of view, a college might not have the budget to do this. But, if it were a free market, then who knows what they would do.”

* * *

“Some of the government interest in college athletes has been in issues around the periphery,” said Ramogi Huma, president of the National College Players Association. “There’s a laundry list of things that could show how the NCAA breaks antitrust laws, but this one-year scholarship rule is at the core of how players are taken advantage of. I’m pleased to see this issue be taken up by the Department of Justice.”

Most prospective athletes, Huma argues, are unaware that the athletically related scholarships being offered to them are only for one year and that renewal can be denied for any number of reasons, even if they remain in good academic standing.

* * *

“Most faculty also have the mis-impression that these athletic scholarships are for four years,” said Ken Struckmeyer, co-chair of the Coalition on Intercollegiate Athletics and a professor of horticulture and landscape architecture at Washington State University. “We all assume it would allow them to finish their academic degree, but that’s not always the case.”
* * *

To read the rest, click here.

Monday, May 10, 2010

Sports Law and Elena Kagan's Nomination by President Obama to Supreme Court

Congratulations to Solicitor General and former Harvard Law School dean Elena Kagan on her forthcoming nomination by President Obama to become an associate justice of the United States Supreme Court. If confirmed by the U.S. Senate, she will fill the position of retiring Justice John Paul Stevens.

While there isn't a particularly compelling sports or sports law angle to this nomination (unlike with Justice Sotomayor), it is worth noting that Dean Kagan was supportive of sports law while at Harvard Law School--including by rightfully honoring Professor Paul Weiler for his extraordinary achievements in sports law, by bringing in distinguished sports lawyer and scholar Peter Carfagna to teach sports law, and by authorizing funding for excellent sports law symposia. Also while under her watch, the Harvard Journal of Sports and Entertainment Law made significant progress towards obtaining faculty and administrative approval. In addition, as Solicitor General, she co-authored the Justice Department's amicus brief in American Needle v. NFL. Last but not least, she's a Mets fan.

For an outstanding overview of Dean Kagan's nomination, check out Tom Goldstein's 9750 words on Elena Kagan on SCOTUSblog.

Saturday, May 8, 2010

Sports Illustrated Column on Legality of Pre Draft Questions in NFL

I have a new column that looks at whether the legal implications of "offensive" questions asked of players eligible for the NFL draft. Here's an excerpt:

* * *

Can NFL teams legally ask prospective draft picks any question, no matter how offensive, during pre-draft interviews?

The last few weeks have revealed two interviews that strike many as objectionable. Namely, Miami Dolphins general manager Jeff Ireland asking Dez Bryant if his mother is a prostitute and an official from the Cincinnati Bengals reportedly asking Geno Atkins if he was straight or gay.

These and similar types of questions could pose legal consequences and possibly lead to reform of pre-draft interviews.

From the standpoint of federal law, Title VII of the Civil Rights Act of 1964 protects job applicants from answering pre-employment questions that are designed or used to discriminate on the basis of race, national origin and certain other protected categories (sexual orientation is not among them). While Title VI empowers employers to test job applicants in a wide-range of ways, questions posed during job interviews must relate to an applicant's ability to perform a job.

* * *

The Dolphins would likely raise several defenses.

First, a pre-draft interview may be legally distinguishable from a job or "pre-employment" interview. After all, the NFL draft is a procedure whereby teams obtain the exclusive negotiating rights to sign eligible football players; teams that draft players thus do not "hire" them for employment, they only obtain negotiating rights to hire them. While this argument may sound like semantics, it could be used to distance Title VII from questions raised during pre-draft interviews.

Second, a question related to a job applicant's socioeconomic class or family culture may be legally distinguishable from one related to his race or national origin. Unlike race or national origin, "class" or "culture" are not, strictly speaking, protected categories.

Third, Ireland's question, while insensitive and regrettable, was seemingly not discriminatory in a racial sense, since Bryant's race was already known prior to the question.

Fourth, the question should be viewed in the context of extensive pre-draft evaluations and the bevy of tests required of potential draft picks. . . .

Friday, May 7, 2010

Breaking Down the Latest Development in the Star Caps Saga

I have a new column up over at the Huffington Post that takes a closer look at the latest development in the StarCaps case.

Here's an excerpt:

The StarCaps saga took yet another turn on Thursday when Minnesota state court Judge Gary Larson finally answered the basic question of the case--can the NFL suspend Pat and Kevin Williams? It took almost 2 years to get there, but Judge Larson concluded that Minnesota law does not prevent the NFL from suspending the Williamses. So, in one sense, this was a victory for the NFL.

But, there is also a loss wrapped inside this victory. Since this case began, the NFL has been seeking a determination--first from the federal courts, then Congress, and now Minnesota state court--that the NFL's drug policies trump state law, so that players cannot resort to state laws to challenge drug suspensions. The NFL did not get that sweeping pronouncement from the federal courts, Congress, or from Judge Larson.


Judge Larson made 4 key findings that led to his ultimate conclusion that the NFL may suspend the Williamses: 1. The NFL is the employer of the Williamses for purposes of DATWA; 2. The NFL violated DATWA's three-day notice requirement; 3. The Williamses were not harmed by the NFL's violation of the notice requirement; 4. The Williamses failed to prove that the NFL violated DATWA's confidentiality provision.


Judge Larson also spent a surprising amount of time chastising the NFL throughout the opinion. For example, although Judge Larson could not determine that the NFL was responsible for leaking the results of the Williamses' positive tests, he noted that "the media leak was clearly of no importance to the NFL Commissioner, as he did nothing to determine that the NFL did not violate DATWA's confidentiality provision... Judge Larson also addressed the NFL's failure to notify the players that StarCaps contained bumetanide, despite the fact that the league became aware that StarCaps contained the banned substance as far back as 2006....Judge Larson added that the NFL directed the drug policy administrator "to report any future players for discipline who tested positive for Bumetanide, even though their use thereof was inadvertent." Judge Larson thus concluded that the NFL "was playing a game of 'gotcha.'"


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

Justice Department Scrutinizing One-Year Renewable Scholarships

Libby Sander of the Chronicle of Higher Education writes today about the Justice Department's interest in NCAA scholarship rules, particularly the one-year renewable rule for scholarships. Here's an excerpt:

* * *

Lawyers from the department's antitrust division recently met with officials from the National Collegiate Athletic Association to discuss the association's rules governing athletics scholarships, according to an e-mail message from the NCAA obtained by The Chronicle. The department appears to be looking at the limitations the NCAA places on scholarships. Currently, an institution is allowed to give an athletics scholarship for only one year at a time—a rule that has been on the books since 1973­—and the scholarship may be renewed for no more than five years in all.

The message from Elsa Cole, the NCAA's general counsel, was sent this week to Division I athletic directors and conference commissioners, among others. Lawyers from the Justice Department, Ms. Cole said in the message, are now beginning to contact the general counsels of Division I colleges, as well as conference commissioners, to discuss "the purpose and effect of those rules."

* * *

The debate over whether financial aid for athletes should be renewable annually or represent a four-year commitment has never fully abated in the 37 years that the one-year rule has existed. Some athletes say the annual renewal leaves them vulnerable in cases of injury or misunderstandings with a coach, while many athletic directors and coaches say it is a necessary and logical practice.
To read the rest, click here.

Thursday, May 6, 2010

Recap of NBA Age Limit Panel at UNC Chapel Hill Scholarly Conference on College Sports

Neil Offan of the Durham Herald Sun writes about "fixing" the NBA's one-and-done rule, which was a panel at the 2010 Scholarly Conference on College Sport at the University of North Carolina-Chapel Hill. Here's an excerpt from Offan's story:

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. . . [A]ll the panelists agreed that if players really don't want to be students, they shouldn't be on campus.

"If a young man doesn't want to be in college, you shouldn't be forcing that man to," said Shane Lyons, the ACC associate commissioner for compliance and governance. "What we have to do is make sure that one year is valuable for those young men, make sure they're going to class."

The NBA rule strikes a lot of people as unfair, said Vermont law professor Michael McCann, who also serves as a legal analyst for Sports Illustrated.

"The evidence is overwhelming that those who skip school have done very well as professionals, so why not let them all have the choice?" McCann said. "I'm not saying they should all not go to college. I'm saying they should be able to make the choice."

And even if the player makes the wrong choice, [Maryland coach Gary] Williams said he should be given a second chance.

"A player should have the right to make a mistake," he said. "You should be able to go back to college if you don't make it in the NBA. You should be allowed to get out and go back to school, with still having your eligibility."

It's difficult for student-athletes in financial need to stay in college when the NBA offers them multi-million dollar contracts, the Maryland coach said.

"They are frequently among the poorest students on campus," Williams said. "If there was a way to provide a stipend for them, because they're not like the other college students. It's a tough fight to keep people [at school] when there is so much money to be made."

Panelist Darryl Dawkins, the first player to jump directly from high school to the NBA, nevertheless supported the idea of spending at least a year at college.

"One year is getter than none," Dawkins said. "You at least have something to fall back on." But by going pro, Dawkins said, he was able to put six of his brothers and sisters through college.

Other players should have the opportunity Dawkins seized, McCann said. "Why not let them take advantage of that brief moment in their lives when they can make a lot of money?" McCann said. "Who cares about the effect on college basketball? What about the effect on the players?"
For additional commentary on the conference, be sure to see excellent commentary by Megan Kahn, Assistant Commissioner of the Atlantic 10 Conference, over on College Athletics Clips (subscription only).

Star Caps Update: Minnesota Judge Upholds Suspension

The Star Tribune is reporting that Minnesota state court Judge Gary Larson has upheld the four-game NFL suspensions of Minnesota Vikings Kevin and Pat Williams. I have not seen the opinion, but the Tribune notes that Judge Larson found that the NFL (and not the Vikings) is the employer of the Williamses and that the suspensions violated Minnesota state law, but upheld the suspensions because the violations did not harm the Williamses. Judge Larson is holding a hearing later today to determine if the suspensions will be stayed pending their appeal within the Minnesota state court system.

For additional updates on this and other sports law stories, you can follow along here.

Tuesday, May 4, 2010

The Next Step in the StarCaps Saga: Federal Legislation?

Over at, Peter King is reporting that California Representative Henry Waxman is “close to introducing legislation in the U.S. House that would make drug policies negotiated as part of a national collective bargaining agreement – such as the one the NFL negotiates with players – override state drug-testing laws.” As King writes, “If Waxman's legislation –which will cover all sports, not just the NFL—is successful, it won't be retroactive. But it would prevent every player in a major sport from appealing to the laws of the state the team plays in if the player tests positive for a banned substance in his league.”

This proposed legislation, of course, stems from the Star Caps saga, when five NFL players—Kevin and Pat Williams of the Minnesota Vikings and Charles Grant, Deuce McAllister, and Will Smith of the New Orleans Saints—were suspended for four games after testing positive for bumetanide. After a series of legal maneuverings in state court, the players challenged their suspensions in federal court arguing, among other things, that the NFL breached its fiduciary duties under the NFL Policy by not warning the players that StarCaps contained bumetanide. The Williamses also argued that their suspensions violated their rights under Minnesota’s statutory workplace drug laws—the Drug and Alcohol Testing in the Workplace Act and the Consumable Products Act. The NFL claimed that these state law claims were preempted by the terms of the collectively bargained NFL Policy on Anabolic Steroids and Related Substances. The United States Court of Appeals for the Eighth Circuit disagreed with the NFL, concluding that the NFL’s drug policy does not trump state law and that the Williamses can challenge their suspensions under Minnesota state law in Minnesota state court. The suspensions of the Williamses (and the Saints players) were thus stayed pending resolution of the case in Minnesota state court— that trial took place earlier this year, and we are still waiting for a decision.

As you might recall, a Congressional subcommittee held a hearing to consider this type of legislation earlier this year. The NFL viewed the Eighth Circuit’s decision as a major threat to its ability to maintain and enforce a strict and uniform performance enhancing drug policy, and appealed to Congress for a federal exemption that would allow the collectively bargained drug policies of sports leagues to trump state laws. The heart of the NFL's argument is that they have a unique need for a uniform drug testing policy, because disparate treatment of players on different teams can have a direct impact on the competitive balance of the league. Simply put—a team is put at a competitive disadvantage if its players are treated more harshly than players on a different team, merely because the players play for teams in different states.

Although the members of the Congressional subcommittee did not appear to be inclined to take any action at the conclusion of the hearing, Representative Waxman was clearly concerned. Here’s what he said at the hearing: “The federal district court in Minnesota has ruled — and been upheld by the Court of Appeals — that the state laws governing workplace drug testing may trump the collectively bargained agreements of the NFL, Major League Baseball, and other sports leagues….This is a serious problem because some state laws undermine the stringent sanctions established by the sports leagues and their players associations.” Waxman concluded that the Eighth Circuit’s ruling “could wreak havoc with policies to curb performance-enhancing drug use in professional sports.”

I have previously expressed the belief that federal legislation allowing the drug policies contained in league collective bargaining agreements to trump state law is premature at this point, for three primary reasons. First, the NFL can still win this case in Minnesota state court. Although Judge Larson determined that DATWA was technically violated because the Williamses were not informed of their positive test results within three days of the test (and that DATWA’s confidentiality provision may have been violated), DATWA only governs “employers” of Minnesota employees, so the NFL can win the case if it persuaded Judge Larson that the Vikings, and not the league, are the employer of the Williamses. Second, even if the NFL loses the trial, it can seek an exemption from the Minnesota state legislature that makes it clear that the Minnesota state drug laws do not apply to the collectively bargained drug policies of professional sports leagues (in other words, they can get from the Minnesota legislature what they are they seeking from Congress). Such an exemption would not be unprecedented—Louisiana’s workplace drug laws have precisely this type of carve-out for sports leagues. Third, at present, only three states (Minnesota, Maryland, and North Carolina) have drug testing laws that might conflict with the NFL policy (and many of these conflicts appear to be minor). Rather than ask Congress to pass a broad federal exemption, the more logical solution—or at least the more logical next step—would be to seek exemptions from the few state laws that may pose a problem for the league. Of course, the NFL might still win the case before the Minnesota state court, so no further action may be necessary at all…

I will have more on this once we get a look at Waxman’s proposed legislation.

Lacrosse and irony

I am interested in this story, given that I am in the process of finishing edits on a book of chapters on the Duke lacrosse scandal.

A member of the highly ranked men's lacrosse team at Virginia, George Huguely, has been arrested and charged with first degree murder in the death of a member of the similarly successful women's team, Yeardley Love. The irony is that the player attended Landon in Bethesda, Maryland--the same school as five members of the now-unfairly-infamous 2006 Duke team. In the early days of the Duke mess, the Washington Post did a story about Landon, including the following from Huguely: "I sympathize for the team. . . .They've been scrutinized so hard and no one knows what has happened yet. In this country, you're supposed to be innocent until proven guilty. I think that's the way it should be."

The Duke connection is going to become a major talking point on this story in the coming days and weeks, since Duke is the only public reference point for any story about lacrosse. That, no doubt, does not thrill officials at Duke, which is so close to putting this story behind it (all members of that team either have graduated or are about to graduate). It also is unfortunate to the extent any part of the story becomes a) Are lacrosse players somehow more likely to engage in violence (or at least misogynist or sexist behavior) against women; b) What is in the water at Landon and Landon's lacrosse program; or c) Look at Huguely's attitude, as reflected in that quotation about having sympathy for the accused players (a comment that turned out to be correct, both in the abstract and in that case.

Still, if we believe the Duke case has some "lessons," watch in the coming days how carefully both UVa and the police/prosecutors play things. All public comments from university officials have been about Love as a person, with no mention of Huguely. No details have emerged about the cause of death or type of injuries or about the nature of their relationship or its current status. Huguely became the investigative focus and was arrested very quickly, but the ex-boyfriend always is a first look.

We do not have the nasty race and class implications here (although one could find such implications in the outpouring of love and praise for the victim). And, unlike at Duke, a crime unquestionably did occur--the only question is who committed that crime. But the gender issue will be front-and-center to the extent this has hints of domestic violence on campus and involving athletes--primarily athlete as alleged perpetrator (not unusual, unfortunately), but unusually in this case also as victim. And this could trigger some conversations about the relationships between male and female athletes, particularly those playing the same sport.