I think it's safe to say that organizational conflicts can distract athletic institutions from being their most effective. That was clearly the case at the University of Southern California, with Pete Carroll locking heads with compliance officers and other USC administrators, and it probably happens in less dramatic ways in other athletic departments and in sports agencies and front offices.
I learned about the course from one of the instructors, Sean Nolon, who's a friend and colleague here at Vermont Law School. After hearing about it over lunch, I thought it would be valuable for a lot of folks in athletic organizations. It should be a very interactive program and sounds like a lot of fun. I'm looking forward to attending.
Click here for more details and registration information.
I need to find a better explanation behind this: A fan wore a LeBron James Miami Heat jersey to a Cleveland Indians game at Progressive (ne Jacobs) Field last night and, when fans in the area began chanting shouting profanities and throwing debris at him, he was escorted from the stadium. Fortunately, in the days of pervasive video, we can watch it happen (although I did not see any debris being thrown).
If there is a concern for violence, the police are supposed to halt the people who are threatening violence, not the guy who is doing nothing more than engaging in speech that pisses them off. And, yes, this guy was no doubt being deliberately provocative; free speech exists so people can be provocative. Unless there was something going on (and I cannot find more-detailed accounts explaining security's decision or action), this looks like a living example of a heckler's veto.
Update: A report from a Cleveland sports blogger about the incident, including a conversation he had with the fan (a Florida-born, Sandusky-residing factory worker named Matt Bellamy).
Yesterday marked the 17th anniversary of the death of Reggie Lewis, an all-star Celtics guard/forward who died from a heart attack on July 27, 1993, at the age of 27.
Growing up right outside of Boston, I was a big Reggie Lewis fan. He's still one of my all-time favorite Celtics, maybe my favorite. In addition to terrific defense and all-out hustle, he averaged 21 points per game in each of his last two seasons (91-92 and 92-93) and in the 91-92 season did something that Larry Bird never accomplished -- he led his Celtics team in scoring, steals and blocked shots per game. As CelticsBlog highlights, Lewis, who was 6'7, also famously blocked Michael Jordan four times in one game.
Lewis had the unenviable task of following Bird as the next great Celtic. It was a task that, had Lenny Bias not died from a cocaine overdose the night the Celtics made him the 2nd overall pick in the 1986 NBA Draft, Lewis would have shared with another potential superstar and the Celtics probably would have gone on to be one of the best teams in the 90s.
But that didn't happen.
On April 29, 1993, Lewis collapsed during a playoff game in Boston against the Charlotte Hornets. A "dream team" of 12 Boston cardiologists concluded that Lewis had cardiomyopathy, also known as "athletes heart" and a potentially fatal condition whereby the heart becomes too thick and beats irregularly. I've written about cardiomyopathy in the context of Eddy Curry and Alan Milstein addressed it when he argued on behalf of Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of Curry's employment.
The doctors told Lewis that his basketball career was over.
Lewis then received a second opinion from Dr. Gilbert Mudge, a cardiologist who as Time Magazinereported, diagnosed Lewis with neurocardiogenic syncope, "a fairly benign fainting condition caused by nerve irregularities during or after peak periods of exertion." At a press conference, Mudge said, "I am confident that under medical supervision Mr. Reggie Lewis will be able to return to professional basketball without limitations." Mudge's opinion was later supported by other cardiologists, though some disagreed and supported the original diagnosis instead.
Lewis did not return to play for the Celtics, whose playoff appearance ended with a 3-1 first round loss against the Hornets, but he did resume a limited amount of practicing. Less than three months later, he would collapse and die while practicing his jump shot.
The death of Lewis raised two legal disputes.
First was a malpractice case against Mudge. The lawsuit was filed by Lewis's widow, Donna Harris Lewis, in 1996, shortly before the statute of limitations would expire. The case took three years to litigate and with a jury unable to reach a verdict, was ultimately declared a mistrial. Mudge's key line of defense was that Lewis admitted to Mudge that he used cocaine, but the admission came months after Mudge's diagnosis:
Mudge had testified that Lewis admitted shortly before his death that he had used cocaine, making an accurate diagnosis impossible. Harris-Lewis adamantly denied the charge.
Second was a threat by then Celtics owner Paul Gaston to sue the Wall Street Journal for $100 million for a front-page story it ran on Lewis in 1995. The story, which Gaston called libelous, suggested that the Celtics deliberately misled their insurance company as to the cause of Lewis' heart condition and that Lewis may have used cocaine. An autopsy of Lewis did not find any evidence linking Lewis with cocaine use.
Here is what Peter May of the Boston Globe wrote on March 18, 1998:
It has been a shade more than three years since Celtics chairman of the board Paul Gaston threatened to sue the Wall Street Journal after the newspaper suggested drug abuse and team negligence may have contributed to the death of Reggie Lewis.
At the time, legal experts said the threat sounded more like bluster than substance and predicted it would never be filed. They turned out to be correct.
The statute of limitations for libel in Massachusetts is three years - and the three-year anniversary of the Journal article passed quietly last week without so much as a piece of paper emanating from the Celtics' legal team.
"We spent quite a bit of time with a libel litigator, and as much as I hate the fact that some injustices go unpunished, I decided that this was one that was going to get away," Gaston said yesterday. "I don't see my job to go on a personal crusade against one of the foremost newspapers in the country. My job is to help rebuild the Boston Celtics and run the company which oversees them."
The Journal article appeared on March 9, 1995. It suggested, among other things, that the Celtics may have withheld medical information to collect on Lewis's insurance policy. There also was the suggestion that Lewis abused drugs.
Gaston immediately threatened to sue for $ 100 million, calling the article "defamatory and libelous." He said any proceeds from the lawsuit would go to the Reggie Lewis Foundation.
Several libel specialists contacted by the Globe expressed doubt that a suit would be filed. One said it would be an "uphill battle," and another added, "The last thing the Celtics want to do is bring this to court."
Gaston said a suit would have cost millions of dollars to pursue and that he felt the money could be more efficiently spent. "But, personally," he added, "I am equally disgusted now as I ever was by what appeared. That bitter taste will never leave my mouth."
Dick Tofel, vice president for corporate communications at Dow Jones, the Journal's publisher, said yesterday, "We said when we published the article that we were confident the article was fair and accurate, and we feel the same way three years later."
For a really good video about Lewis, here's this tribute I found on Youtube:
Marcia Smith of the Orange County Register has the story on the lawsuit and interviews me and Lewis & Clark Law School professor Tung Yin about it.
The gist of the lawsuit: the Titans allege that USC and its new coach, Lane Kiffin, "maliciously" lured away running backs coach Kennedy Pola to become the Trojans' offensive coordinator.
The alleged malicious part is that Pola's contract with the Titans required written permission from both the Titans team president and its general counsel for him to take another job. He didn't get the permission, and the Titans claim USC and Kiffin knew about the permission requirement. Now the Titans don't have a running backs coach with a week to go before training cap.
Here is an excerpt from Smith's story:
* * *
"It's a funny lawsuit that could have been avoided if Kiffin had made the customary courtesy call before talking to Pola," said Lewis & Clark Law School professor Tung Yin. "The harm that they (the Titans) are also alleging also probably wouldn't have been an issue if the hiring happened two or three months ago and not left the Titans without a running backs coach a couple days before camp opens."
This is the latest controversy for Kiffin, who left his University of Tennessee head coach job and a trail of secondary NCAA violations and rubbed-the-wrong-way peers after the 2009 season to become the USC coach. Titans coach Jeff Fisher, a USC alumnus who hired Pola in February, expressed dissatisfaction with Kiffin's methods that neglected the terms of Pola contract, which ran at least through Feb. 14, 2011.
"There is a tradition of coaches changing teams for promotions, even when their employment contracts contain language that technically limits their ability to change teams,..." said Vermont Law School professor Michael McCann. "The Titans have to be careful here. If the Titans develop a reputation for not letting assistant coaches take on other jobs, it may hurt their chances for hiring top assistant coaches."
* * *
To read the rest of Smith's column, click here. To read the complaint, click here.
I have 5 other points:
1) I think it would be interesting to find out how common the alleged clause requiring Pola to obtain written permission is in the contracts of Titans' assistant coaches and, if it is common, whether the team has enforced it with other departing coaches. Or, if its unique to Pola's contract, why did the team insist on having it with him?
2) Although the facts of this case are different, there was the recent case in New York involving James Madison University engaging in tortious interference by hiring away basketball coach Matt Brady from Marist College without obtaining the proper permission from Marist. Marist won the case. While that case is in a different jurisdiction, does not concern a position promotion (as Pola, now an offensive coordinator as opposed to mere running backs coach, is getting with USC), and probably involves different contractual language, perhaps the Titans nonetheless feel emboldened by the outcome of that case.
3) I assume Pola isn't being sued himself for breach of contract because the Titans do not believe it is financially worth it, or because they still like him as a person, or because they do not want to develop a reputation for suing departing employees who leave the team for a promotion.
4) While this lawsuit is unlikely to prevail, the Titans are sending a message that other teams probably agree with: don't poach coaches right before the start of training camp.
5) If this dispute were between the Titans and another NFL team, rather than with a college team, we wouldn't see a lawsuit -- we'd see Commissioner Goodell resolve it, internally (like when Commissioner Tagliabue resolved the dispute between the Jets and Patriots when the latter hired Bill Belichick away -- the Jets got a first round pick, the Patriots got what turned out to be one of the best coaches of all time).
Libby Sander has an extensive and thoughtful article on Sonny Vaccaro and O'Bannon v. NCAA in this week's Chronicle of Higher Education. The article is titled The Gospel According to Sonny: Sonny Vaccaro helped commercialize college sports. Now he wants athletes to get their due. She interviewed many persons for this story, including me and Duke Law Professor Paul Haagen. Here are some excerpts:
* * *
Three years have passed since Mr. Vaccaro ended his decades-long career as a marketing executive with Nike, Adidas, and Reebok, for which he oversaw large-scale events for elite teenage players ... Now, in a new period of his long involvement with the game, Mr. Vaccaro, who is 70, has embarked on a personal quest of sorts. If he succeeds, he could fundamentally change college sports. He could also change his legacy.
* * *
One of [Vaccaro's] most consistent complaints is that the NCAA's rules governing athletes, especially that limit scholarships to one year and require athletes to sit out a year after transferring, treat players like commodities to be traded at convenience. He recently produced a list of more than 300 Division 1 basketball players who, by late June, had already transferred to other institutions--presumably in part because of recruiting promises left unfilled--where they will lose a year of eligibility.
* * * . . . Ramogi Huma, president of the National College Players Association, a group of 14,000 current and former Division I athletes that advocates for many of the same issues as Mr. Vaccaro, says the aggresive rhetoric (of Vaccaro) strikes exactly the right tone. The NCAA "doesn't respond to people asking nicely," he says. "It responses to force: lawsuits, new laws, public criticism through the media. I think he's doing exactly what he needs to do if he's going to inspire change.
"Look at who he's talking to. He's talking to the future lawyers. He knows where the power lies."
[Note from McCann: Vaccaro has spoken at a number of law schools and other academic institutions in the last couple of years, including Yale Law School, Harvard Law School, and Boston College Law School -- check out our coverage on Sports Law Blog]
* * * . . . Mr. O'Bannon's case in particular has brought more attention to a waiver that athletes sign when accepting a scholarship, which authorizes the NCAA to use their names and pictures to promote NCAA events, giving up all future rights in the association's licensing of those "images and likenesses."
Michael McCann, a professor at Vermont Law School who focuses on sports law and has written about the O'Bannon case, says Mr. Vaccaro's willingness to push the issue of whether athletes should receive compensation, even retroactively, forces people inside and outside intercollegiate athletics to confront a concept many feel is threatening.
"People love college sports. To suddenly change it to where college players are paid would change the way we look at college sports," Mr. McCann says.
To Mr. Vaccaro, however, the quandary is almost purely one of labor and compensation—with the wrong people benefiting from a distorted market.
"He really is trying to get at the questions of what's the appropriate interaction of education, athletic competition, and kids—particularly kids who come from fairly tough backgrounds," says Mr. Haagen, the law professor at Duke. "I think Sonny had this kind of intuitive sense that a lot of the amateurism talk was not correct. ... What he really understands is the beginnings of an effort to try to get dollars to people who are producing value."
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To read the rest (subscription only), click here. It's a must read if you have a subscription.
I was recently named Chair of the Faculty Appointments Committee at Vermont Law School by the school's Dean and President, Jeff Shields. I'm excited and honored by this opportunity. Our committee has several other blogging professors, including Professors Jason Czarnezki of Czarnezki.com: Life, Law, and the Environment, Stephanie Farrior of IntLawGrrls, Oliver Goodenough of The Huffington Post, and Cheryl Hanna of Vermont Public Radio. If you think you might have interest in applying for a faculty position at our school, here is our appointments listing:
Vermont Law School is seeking several colleagues to join our dynamic and committed faculty.Our curricular needs are varied and include first-year and advanced subjects. We will consider experienced faculty, entry-level candidates, and candidates with significant experience in government, consulting, business, NGO management, or law firm administration and leadership.
Candidates should show a commitment to excellence in teaching, scholarship, and service. Vermont Law School is committed to establishing and maintaining a diverse faculty and encourages applications from members of historically underrepresented groups.
Faculty at Vermont Law School take seriously our mission to educate lawyers for the community and the world and believe that our scholarship, teaching, and service should be meaningful and relevant to the local, national, and international communities.VLS is unique among law schools. We are on the cutting edge of environmental and international law and social policy.We embody the spirit of Vermont -- independence and diversity in people and in politics.We have the good fortune to be located in a state and region that offer numerous opportunities for engaged participation in civic life as well as a life style found at few, if any, other law schools.
Applicants should provide a cover letter and resume.Electronic applications are preferred and should be e-mailed to: facultysearch@vermontlaw.edu.Hard copy applications should be sent to: Coordinator, Faculty Appointments Committee, Vermont Law School, P.O. Box 96, South Royalton, VT 05068.
Please feel free to apply for a position or contact me with any questions. To learn more about Vermont Law School, check out our website. It's a really dynamic institution and an incredible place to work. And I hear good things about the sports law program, too.
Krause's authority is another point of contention. K-State contends Krause was not authorized to negotiate on behalf of the university, though McCann considers that argument a tough sell.
"If it's absolutely clear that he didn't have authority, and everyone knew he didn't have authority, that's one thing," McCann said. "One would think that an athletic director has sufficient authority to represent the university in contractual negotiations for a coach."
When asked to document his authority during contract negotiations, Krause pointed to a provision in the by-laws of K-State's Intercollegiate Athletic Council authorizing him to "enter into any contract or execute and deliver any instrument in the name of and on the behalf of the Corporation" as CEO.
Even if Krause didn't have actual authority, Schwartz said, Prince's attorneys can claim he had apparent authority by virtue of his position.
"There are two ways a person can have authority," Schwartz said. "They can either have actual authority — someone said, 'You have power to do this' — or you can have apparent authority. Even if (Krause) wasn't actually given the authority to do it, his role at K-State made it look like he was in a position to make these kinds of decisions."
* * *
K-State has argued that Krause acted alone, though the former athletic director testified that he discussed the separate buyout agreement with aides Jim Epps and Bob Cavello. Epps and Cavello denied that claim in depositions.
Even if Krause was a rogue actor, McCann said, it doesn't absolve K-State of responsibility.
"Their argument might be, 'This was the renegade athletic director, and not only was he the renegade athletic director, but everyone knew that,'" McCann said. "That, of course, is kind of a weird argument. Why was there a renegade athletic director?"
* * *
In terms of the litigation's status, both sides have filed motions for partial summary judgment. It will be an interesting case to follow. To read the rest of the piece, click here.
Update: Sports attorney Don Jackson lets me know of a similar case that he litigated. The case was John L. Williams v. W. Curtis Williams and Alabama State University. Here are the details:
The KSU case is similar to a case that I tried against Alabama State University in 1999. The University isolated the Athletic Director. He, in turn, claimed that he did not have the authority to enter into a contract with my client, the Interim Head Men's Basketball Coach despite the fact that he made on formal offer on Athletic Department letterhead (which prompted my client to resign his job at another HBCU and accept the Alabama State University job). We sued the A.D. under a theory of promissory fraud and received at $350,000.00 jury verdict against the A.D.. It was clear that he did have authority to act on behalf of the University but he mistakenly assumed that he could escape liability under the doctrine of sovereign immunity or discretionary function immunity. He was mistaken. Ultimately, the A.D. wound up declaring bankruptcy (as a result of the verdict) and the university terminated him.
This Sunday, power-hitting outfielder Andre Dawson will earn his induction into the Major League Baseball Hall of Fame. To many, Dawson is best known for his 438 career home runs, 314 stolen bases, and 1987 MVP Award.
However, from a sports law perspective, Dawson is also important for having signed a blank contract with the Chicago Cubs during the 1986-87 off-season--an act that helped to expose Major League Baseball's collusive practices during that era.
After accepting this 50% pay cut, Dawson won the 1987 National League MVP for the last-place Cubs--becoming the first play in baseball history to win that award for a last place team.
So, in light of the much publicized Human Growth Hormone (HGH) positive test result for rugby player, Terry Newton, earlier this year, Bud Selig has implemented HGH testing for minor league baseball players. Recall that the Commish can unilaterally impose such testing as Minor League baseball players are not represented by a collective bargaining group like their Major League counterparts, the MLBPA. The random testing will fall under the existing Minor League Drug Prevention and Treatment Program, under which forty-nine Minor League players have been suspended in 2010. None of these suspensions were made for HGH use.
Current penalties for performance enhancing substances (PEDS) will apply to HGH as well: fifty game ban for the first positive result, one hundred game ban for the second positive result, and, finally, a third positive result could mean a permanent suspension from both the Minor and Major Leagues.
(And, yes, the photo in the top left is from an actual website advertising HGH.)
Check Rick Karcher's open letter to Bud Selig regarding HGH posted back in 2006 on this Blog.
That's what both Lewis and Clark law professor Tun Yin and I told Marcia Smith for her column in the Orange County Register on USC's potential legal claims against Reggie Bush, whose Heisman Trophy was taken down and whose No. 5 number was unretired by USC this week.
Here are some excerpts from her column:
* * *
Why not put Bush, who has made more than $23million in his four NFL seasons, on the hook for the all the damages: the crumbling of the USC dynasty, the 13 vacated victories from December 2004 to the end of the 2005 season, the erased 2005 BCS championship title won over Oklahoma, the $10 million losses of potential future BCS bowl revenue, the flight of blue-chip recruits, the setback to the program or the emotion distress of fans and boosters who have become accustomed to a certain winning style of Trojan life?
Sue! There seem to be so many victims, right?
"But USC can't sue because it doesn't have much of a case it can win," said Tun Yin, a Lewis & Clark Law School professor with a specialty in sports law. "It's hard to claim that USC was harmed by something that it didn't work too hard to prevent in the first place."
* * *
"If USC tries to sue Reggie Bush, it opens itself up to discovery and to any other ugly secrets that Bush's high-priced defense team might dig up, and that could lead to even more NCAA problems," said Michael McCann, a Vermont Law School professor and sports legal analyst.
"The first problem is that USC (through now-fired football assistant Todd McNair) had significant awareness of what Reggie Bush was doing," McCann said. "The contention that he breached a scholarship contract doesn't work because the school knew what was happening, failed to investigate it fully when it was going on and should have made a claim against Bush while he was playing."
* * *
To read the rest, click here. For an analysis of the relationship between the UAAA and USC and Reggie Bush, see this excellent Sports Law Blog piece from Tim Epstein.
Update: Gabe's comments were included in an updated version of the piece:
According to Tulane Law School associate professor Gabe Feldman, who also his school’s associate provost for NCAA Compliance, California’s Miller-Ayala Act permits schools to sue only the registered agents -- not the athletes -- in these situations. . . . "There's really nothing USC can do except what it has done (in recent days), which is beef up its compliance staff, hire an outside consultant to assess the culture of its student-athletes and put in additional protections to help police what goes on off the field," Feldman said.
At least it isn't according to U.S. District Judge Stefan Underhill, who held today in Biediger v. Quinnipiac University that Quinnipiac must keep it's women's volleyball team in order to comply with Title IX, a federal law that commands gender equity in sports. The judge, who President Clinton nominated to the U.S. District Court for the District of Connecticut in 1999 and who teaches as an adjunct professor at the University of Connecticut School of Law, rejected Quinnipiac's attempt to count cheerleaders for purposes of Title IX. Like Juge Underhill, the NCAA does not recognize competitive cheer as a Title IX eligible sport.
Here's Judge Underhill:
"Competitive cheer may, some time in the future, qualify as a sport under Title IX. Today, however, the activity is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."
In Judge Underhill's view, a key witness in the case was Jeff Webb, CEO of the cheerleading organization Varsity Spirit and something of a pioneer in competitive cheerleading. Webb testified that competitive cheerleading is not a sport in part because of its original design: it was designed to generate publicity and to provide support to other groups (e.g., sports teams; companies); it was not designed for the engagement of authentic athletic competition. From Judge Underhill:
Jeff Webb, who testified at trial, is at the center of competitive cheer’s history and maturation. Webb is the president of Varsity Brands, Inc., an athletic equipment manufacturer that caters to cheerleading teams. Through its subsidiary organizations . . . Varsity Brands also holds competitions among scholastic cheerleading teams and private, “all-star” cheerleading teams. Webb’s involvement with the sport of cheerleading began in the early 1970s, when he was a student cheerleader at the University of Oklahoma. Shortly after graduating, he started UCA, which would eventually turn into Varsity Brands, with the intent of creating a business that would sell cheerleading equipment and offer training camps for cheerleaders. To help promote his business, Webb began holding competitions for cheerleaders, the first of which took place in 1980. Soon, those competitions began to be televised, and cheerleading began to be recognized as a form of competition. Webb testified, however, that he never imagined that his competitions would establish a new sport; rather, he understood his competitions as a publicity vehicle for his startup business.
Another factor hurting Quinnipiac, in Judge Underhill's view, is that cheerleading competitions vary widely in the institutional affiliations and types of opponents, as well as in the presence and types of scoring systems used in competitive cheer:
. . . over the course of its season, the competitive cheer team competed against a variety of opponents and according to scoring systems promulgated by a host of organizations. Quinnipiac competed against other collegiate competitive cheer teams, including varsity and club teams; collegiate sideline cheer teams that competed occasionally; private allstar teams with players of varying ages; and even, at one event, high school teams. Only two of its meets were scored according to the NCSTA scoring rules. The rest of the events were subject to different scoring systems . . .
Judge Underhill's decision is important because it offers a first-impression opinion by a federal judge that cheerleading is not a sport. It means that schools using cheerleading for purposes of Title IX should reconsider their policies or, if in Connecticut, change them. Keep in mind, though, other judges in other jurisdictions could reach different determinations, and given the lack of other precedent on this issue and given that cheerleading could become more formalized in the years ahead, it is certainly possibly that other judges, if faced with the same question, will conclude that competitive cheer is a Title IX eligible sport. Update: For an excellent analysis of this decision, see Professor Erin Buzuvis's piece on Title IX Blog. See also Dan Fitzgerald's extensive and insightful commentary of the case on Connecticut Sports Law.
USA softball suffered another blow yesterday when Jennie Finch announced her retirement, effective at the end of this summer. The sport, which has already seen its Olympic hopes erased for the next two Games, is arguably losing its most visible star. Only 29, Finch is still at the top of her game, but what does she have to play for? Without the Olympics, her only meaningful tournaments are the World Championships and the World Cup of Softball. And the World Cup of Softball, which begins tomorrow night, has seen its level of competition dramatically decrease. Once a gathering of the best softball teams in the world, this year's tournament features just three countries: USA, Japan, and Canada. How is that 38 years after the passage of Title IX, only three countries a) can field competitive teams, or b) choose to compete in what has now become one of the highest levels of competition for the sport?
Even the National Pro Fastpitch league, the only professional outlet for female softball players, has seen its number of teams drop from eight at its height to just four this year. More girls are playing sports now than 20 or even 10 years ago. Since the enactment of Title IX, female participation in college sports has increased 456%. The interest in playing the sport is clearly there, so why are the powers-that-be pulling the plug on opportunities? In the case of the Olympics, speculation is that the US was too dominant, winning the first three gold medals (1996, 2000, 2004) since the sport's induction into the Games. But that wasn't the case in 2008, when the US lost to Japan in the gold medal game. And if being too dominant is a concern, then why is table tennis still included, when the Chinese have won 20 of 24 gold medals (and a Chinese woman has won every single gold) since the sport's entry into the Games in 1988? Another reason suggested for the sport's cancellation is that it is "too American" for the Olympic Committee. But there are 128 member countries in the International Softball Federation, almost twice as many members as the International Ice Hockey Federation, which has 69.
With the National Pro Fastpitch league, the issue seems to be money: teams folded because they couldn't sustain operations with low attendance. The New England Riptide, for example, folded before the 2009 season for economic reasons, with the hope and intention of returning in 2010. It didn't. And without the Olympics to generate the interest in the sport for spectators, the outlook does not look promising for growing the league.
So what does all of this mean for a sport that has given us such great athletes as Lisa Fernandez, Dot Richardson, Cat Osterman, Jessica Mendoza, and Jennie Finch? It means that after college, these women have few opportunities to play at an elite level, when they are at their athletic peak. It means that if given the choice between playing soccer and softball, young girls might choose the former because the stage is bigger. It means that the great college players right now will likely never get a chance to play in an Olympic Games. And it means that fans of the sport will be relegated to watching just the best players from three countries every July—for now.
We are pleased to announce that Professor Holly Vietzke of the Massachusetts School of Law will be guest blogging on Sports Law Blog. In addition to sports law, Professor Vietzke teaches courses in animal law and sophisticated speech. She is also Director of Writing and Legal Reasoning and has a law firm that specializes in estate planning, real estate law, and elder law.
Just last week, Illinois became the 39th state to pass legislation based on the Uniform Athletes Agent Act, (the “Act” or the “UAAA”) a model law promulgated by the National Conference of Commissioners on Uniform State Law.The legislation is aimed at regulating the relationship between sports agents and student-athletes with professional prospects and educational institutions by providing for uniform registration, certification and background check of sports agents, as well as establishing criminal and civil penalties for agents who offer benefits to student-athletes.The Act also imposes certain disclosure requirements and specified contract terms on agreements between agents and student-athletes with remaining eligibility in order to protect institutions and their student-athletes.All agency contracts must include a conspicuous warning, in specified language, that a student-athlete who signs an agency agreement loses any remaining eligibility to participate in intercollegiate sport.
The UAAA is certainly a well-intentioned piece of legislation, and it could hardly be argued that the sports world would be better off without it.One of the more interesting aspects of the UAAA is a provision that gives an educational institution a right of action against an athlete agent or student athlete for damages sustained as a result of conduct that violates the act.Under this provision, a school would be able to sue for losses sustained as a result of penalties levied by the NCAA and/or athletic conference of which the school is a member, or penalties imposed by the school itself.
In light of the heavy sanctions imposed by the NCAA on USC as a result of the Reggie Bush scandal, as well as the self-imposed sanctions stemming from OJ Mayo’s receipt of benefits from a sports agency, one has to wonder whether USC will pursue actions against the agents involved in these incidents.California has not yet adopted the UAAA (the adoption of the Act is pending in the California legislature), but has in place its own version of an athlete agent law, the Miller Ayala Act, which creates a presumption of damage if an athlete is suspended or disqualified, or if an educational institution is suspended or disqualified by the NCAA due to acts of an athlete. (The UAAA does not provide for the same presumption).The damage done by NCAA sanctions as a result of the Reggie Bush scandal are of a magnitude that it’s a pretty safe bet that USC has at least kicked the tires on a lawsuit against Michael Michaels and Lloyd Lake, the two agents who are alleged to have funneled impermissible benefits to Bush while he was enrolled at USC.As for OJ Mayo, that scandal possibly implicates the highly successful Bill Duffy Agency.
It is worth noting that the UAAA in most states permit a school to sue the agent AND the student.It is also worth noting that the Miller Ayala Act in California, and Florida’s version of the Act, do not permit a school to sue the former student-athlete whose conduct in concert with an athlete agent resulted in a violation under those states’ respective laws.University of Southern California v. Reggie Bush, and the University of Florida v. Maurkice Pouncey are two cases that are unlikely to show up on the dockets.
But even if the UAAA is designed to protect educational institutions, why aren’t the schools suing the agents?Perhaps the answer lies in the fact that student athletes such as Bush and Mayo create such a windfall of profits for their schools that the educational institutions cannot show any discernable damages. Another possible explanation may be that questionable athlete-agent interaction is simply not as prevalent an issue as it is portrayed in the media. Certainly the cases of Bush and Mayo have created a media firestorm, but most NCAA student athletes are not in line to make millions in professional leagues and are unlikely to even face such temptation. Schools are probably satisfied to simply move on and repair their images rather than engage in drawn out litigation.This perhaps explains USC’s heretofore reticence to sue, as the NCAA’s sanctions were not just for Bush’s contacts, but also for what the NCAA described as a “lack of institutional control.”
All of the examples mentioned herein manifest the intrinsic impossibility of fully policing the sports agent industry, and certainly invite skepticism with regard to the efficacy of the UAAA. There is simply too much money involved, and greed and immorality will at least occasionally trump honesty and integrity. To be sure, the UAAA is not a panacea for the problems that face the industry, and it certainly is not going to stop all corrupt behavior, but the Act at least represents a step in the right direction.What remains to be seen is if the threat of a suit by a NCAA school is a credible one that would give agents and student-athletes pause before making any agreements about future representation.
For more information about this topic, please check out Darren Heitner’s entries about the Florida and UNC investigations at Sports Agent Blog.
Hat tip to my law clerks Luke LeSaffre and Brian Konkel for their work on this piece.
In last month's Major League Baseball draft, the Boston Red Sox drafted Bryce Brentz, a 21-year-old outfielder from Middle Tennessee State University, as a supplementary first round pick. The Red Sox and Brentz quickly worked out a contract and Brentz is now playing for the Lowell Spinners in Class A (short season). He's off to a very slow start -- a .147 batting average after his first 109 at-bats -- but it's early and he's expected to hit well.
That expectation is based in part on Brentz's college career, during which he was considered one of the best amateur hitters around. Despite his college success, the Red Sox want Brentz to make some changes as he transitions from amateur to professional. That's to be expected, of course, especially with switching from aluminum bats to wooden bats and from playing several times a week to playing everyday for weeks on end.
One uncommon change the Red Sox expect Brentz to make concerns his eyes. After he was drafted, the Red Sox told Brentz -- whose vision is either 20/20 or very close to it -- that he needed to wear contact lenses so that his vision would improve to 20/15 or 20/12. Brentz accepted the Sox request and is now wearing contacts for the first time in his life. He tells Brian MacPherson of the Providence Journal that wearing contacts has impacted his hitting, both for good and bad, depending on the kind of pitch thrown:
I can see the edge of the contact on my eyes when I look around, like in the peripheral . . . Looking at something, it stands out more. It’s more clear. It’s more crisp. But on a fastball, it looks like it’s closer than it really is. I’ve just got to get used to it.
Asking a player to wear contact lenses is not a very invasive request. Contacts, as those of us who wear them know, are relatively easy to wear once you get the hang of them, though they sometimes cause the eye to become dry and can occasionally be annoying for other reasons. But if a player doesn't like to wear contacts, he can simply take them off after the game; wearing contacts does not change a person's body, they only cause the person's eye to see better for as long as they worn.
But what about the fact that Brentz has normal or almost normal 20/20 vision? And say he had declined the Red Sox's request because he felt that his 20/20 vision -- which was good enough for him to become one of the best hitters in college baseball -- was just fine as it was?
After-all, Brentz wearing contacts is not about correcting an injury; it's about improving his vision to a level better than normal.
Should players be expected, upon team request, to use medical devices in order to alter their normal health in a non-corrective way?
Or take it a step further. What happens if teams begin to ask players with 20/20 vision to have Lasik surgery so their eyes are surgically altered to see 20/15 or 20/12 vision? The Braves reportedly encouraged Greg Maddux to have Lasik surgery, though his vision was not 20/20 at the time. Would a request that a 20/20 player have surgery to enhance his body -- as opposed to correct an injury -- raise any ethical worries?
Would surgery in that instance be more like a (legal) steroid except one made at the behest of the team?
To be sure, players, and not teams, decide whether players are going to have surgery. However, one could question how much "choice" a player believes he has if he wants to keep his job. But ultimately it's the player's call.
Teams, in fact, sometimes don't want players to have surgery, particularly if the player would be shelved for a long period of time. As I discussed in my SI column on Carlos Beltran and the Mets disagreement about the necessity and choice of doctor for a knee surgery, MLB's collective bargaining agreement is purposefully vague as to how to resolve disagreements about player health care:
Interestingly, and understandably, the collective bargaining agreement does not expressly resolve how teams and players should reconcile differences in opinions over the appropriate course of a player's treatment and who should perform a particular surgery. Instead, the agreement essentially encourages players and teams to work out their differences in good faith and with an appreciation for reasonableness, taking into consideration the desires of both parties.
Vagueness may be the best course of action for issues of this sort, but as new medical devices and surgeries emerge, perhaps leagues and players' associations will need more specificity. It could be a matter that receives more attention in collective bargaining in the years ahead.
As you may recall, Marist University brought a lawsuit against its former men’s basketball head coach, Matt Brady, and James Madison University (JMU). The suit centered on an interesting provision in Brady’s contract with Marist. According to the contract, Brady was required to cease all contact with players being recruited by Marist if Brady were to leave during the terms of his contract. Brady, in the first year of a newly renegotiated 4-year deal, left to coach JMU. Interestingly, despite a provision precluding Brady from even discussing a job with another program during the term of his contract, Marist allowed Brady to leave for JMU, but Marist insisted that JMU and Brady honor the no-contact-with-recruits portion of the contract. In fact, Marist’s Athletic Director wrote a letter to JMU identifying 19 basketball players who had been recruited by Brady while at Marist (“The List”), and were thus off limits to Brady and JMU.
In its complaint, Marist alleged that Brady, with JMU’s full knowledge and encouragement, contacted Marist recruits in order to entice them to join JMU’s basketball team. The complaint also alleged that JMU offered scholarships to four of the Marist basketball recruits who were on The List. One of those recruits had already committed to play for Marist.
JMU moved to dismiss the case on a number of grounds, including lack of subject matter jurisdiction and failure to state a claim. Earlier today, Judge Wood of the New York Supreme Court issued a default judgment against JMU, holding that, among other things, JMU tortuously interfered with the Marist-Brady contract by encouraging Brady to contact his Marist recruits (the ruling does not cover the claims against Brady). Judge Wood spent little time discussing the factual details of the dispute, but in ruling that a NY court had jurisdiction over the case, noted that “an out of state university [had] allegedly raid[ed] a New York college’s prospective recruits, developed and cultivated by a head coach subject to a New York employment contract and funded by that college’s New York resources.” Judge Wood has ordered JMU and Marist to appear in court on July 26th to determine the damages caused by JMU’s interference.
A few quick thoughts on the decision:
1) To my knowledge, this is the first time a school has sued a coach, or another school, or anyone, for violating a “no recruitment” clause in a coaching contract.
2) Not surprisingly, to my knowledge, this is the first time a school has successfully sued another school for violating a “no recruitment” clause in a coaching contract.
3) Judge Wood is holding a hearing on July 26th to determine the damages caused by JMU’s tortuous interference. Typically, in cases where a coach jumps to another school, damages are either too speculative to be awarded (and a negative injunction is awarded) or are covered by a liquidated damages provision or a buyout clause. Here, of course, Marist did not sue because Brady left. Instead, Marist sued because Brady (with JMU’s encouragement) contacted his former Marist recruits after he left. This may be the first time a court determines the damages a school has suffered by having another school contact its recruits. How a court can possibly determine those damages with any degree of certainty is anyone’s guess (though it is worth noting that Marist’s basketball team finished with a 1-29 record this year)…
4) Assuming this decision holds up on appeal (or even if it does not), it will be interesting to see if these “no recruitment” clauses become more common in college coaching contracts, or if other courts find them to be unenforceable. While it may dissuade a coach from jumping ship to a new school, it’s yet another instance where a student-athlete’s rights are limited without his/her consent.
A lacrosse team representing the Iroquois Nations is trying to get to England to participate in the Lacrosse World Championships. Unfortunately, they are trying to travel under tribal (rather than United States) passports, which goes against State Department and U.K. directives. The U.K. is refusing to let the team into the country, concerned that the U.S. will not allow them back in without U.S. passports (despite a one-time waiver from Secretary of State Clinton). So the players remain stuck in a hotel near Kennedy Airport until the matter can be resolved. The team forfeited its opening-round game today (against, irony of ironies, England) and have been demoted to the lesser division for the tournament. The greater irony, of course, is that the Iroquois invented the damn game.
Read the full piece at Deadspin. Also, check out this lengthy article on the Iroquois team in the new Sports Illustrated.
Update, July 16, 10 p.m.: The team has given up on trying to get to England. Because the matter was not resolved by Friday afternoon, there was no way to get there in time for their Saturday game against Japan.
Whether cheerleading is a sport and whether it should count in Title IX analysis are subjects that we've periodically considered on the blog. In 2005, Greg Skidmore wrote about cheerleading and Title IX when the University of Maryland added cheerleading as a varsity sport. Tim Epstein addressed the tort implications of cheerleading in his 2006 post, From Poms to Pain, and more recently Tim, Marc Edelman, and Howard Wasserman have all considered Wisconsin courts' handling of cheerleading as a contact sport and the impact on Title IX, particularly in the Noffke v. Bakke decision.
As discussed a couple of weeks ago by Pat Eaton-Robb of the Associated Press, the future of the seven universities that currently offer competitive cheerleading may hinge on U.S. District Judge Stefan Underhill’s view of competitive cheerleading in a class action case expected to be decided later this month. The case, Biediger v. Quinnipiac University, is before the U.S. District Court for Connecticut.
Here's the gist of the case: Although the NCAA does not recognize competitive cheerleading as a sport, Quinnipiac University argues that cheerleading is a sport and ought to be Title IX eligible. Indeed, Quinnipiac counted competitive varsity cheer squad members among the athletic opportunity allotments provided to women as mandated by Title IX. By counting their cheerleading team, the school reasoned that it could terminate the women’s varsity volleyball program and still report equitable allotments of athletic opportunities to men and women.
When it learned of the school’s plan to terminate the women’s volleyball program, the volleyball team responded--in court. It filed a lawsuit claiming that if the school proceeds as planned, the school would be in violation of Title IX and the volleyball team members would suffer irreparable harm. The volleyball team also insists the school’s roster management and EADA reporting practices are misleading. Namely, according to the volleyball team, the school sets artificial roster floors in order to generate inflated figures, which in turn gives a misleading appearance of Title IX compliance.
About a year ago, Judge Underhill issued a temporary injunction preventing Quinnipiac from cutting the women’s volleyball program or any other female opportunities. The judge reserved ruling on whether competitive women’s cheerleading is a Title IX-eligible sport. That ruling should arrive in days.
Closing arguments occurred three weeks ago, and in its closing statement, Quinnipiac argued that competitive cheerleading meets every requirement for consideration as an emerging sport: “Don’t close the door to the thousands of women who intend to compete in this new sport and it is a sport. If the court doesn’t recognize it will be a death knell (to competitive cheerleading).” Quinnipiac intimates that if it could not count the competitive women’s cheer team under Title IX, the sport may be economically unsustainable and abandoned.
Many thanks to research assistant Britney Turner for her assistance on this post.
Variousnewsoutlets are reporting that the World Anti-Doping Agency ("WADA") is considering adding caffeine (back on) to the prohibited list. Reading the reports made me think of a tennis doping case I worked on back in 2003. The appeal involved Martin Rodriguez, a journeyman tennis player from Argentina.
After WADA dropped caffeine from the prohibited list on January 1, 2004, I thought I would be the last (only?) attorney ever to represent a player in such a caffeine-related appeal. A strict liability standard applies to most substances on the prohibited list. In other words, the presence of the prohibited substance, whatever the amount, can trigger a positive test. Caffeine, in contrast, is allowed up to a certain point. The cut-off for caffeine in 2003 was 12 micrograms per milliliter. Any amount of caffeine above such cut-off would trigger a positive test. Lesser amount were permitted.
Caffeine is a unique drug. Its use is pervasive, as it is found in coffee, soda pop, chocolate, and a number of other common food products. At low to moderate levels of consumption, the general consensus appears to be that caffeine can be helpful athletically and cognitively. At excessive levels, it is unlikely that caffeine would be a "performance enhancer" under WADA's guidelines. This is especially true in sports requiring a high degree of motor control. Perhaps this is the reason WADA dropped caffeine from the prohibited list a few months after the appeal in the Rodriguez case. If caffeine is re-introduced to the prohibited list, I will be curious to see what the threshold (if any) is for a positive test. Similarly, it will be interesting to see whether coffee manufacturers augment their sponsorship of sporting events. The loss of sponsorship revenue for certain sporting events may be one unintended result of caffeine regulation by the doping authorities. Stay tuned...
Zachary Blumenthal, Note, The punishment of all athletes: the need for a new world anti-doping code in sports, 9 JOURNAL OF INTERNATIONAL BUSINESS & LAW 201 (2010)
Walter T. Champion, Jr., The Second Circuit takes a second look at the non-statutory labor exemption in professional sports: a review of Wood v. National Basketball Association, Caldwell v. American Basketball Association, National Basketball Association v. Williams, and Clarett v. National Football League, 27 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL 83 (2009)
Edmund Donnelly, Comment, What happens when student-athletes are the ones who blow the whistle?: how Lowrey v. Euverard exposes a deficiency in the First Amendment rights of student athletes, 43 NEW ENGLAND LAW REVIEW 943 (2009)
Andrew L.T. Green, Note, Spreading the blame: examining the relationship between DSHEA and the baseball steroid scandal, 90 BOSTON UNIVERSITY LAW REVIEW 399 (2010)
W. Chapman Hopkins, Procedural due process implications of Kentucky’s thoroughbred medication regulations, 2 KENTUCKY JOURNAL OF EQUINE, AGRICULTURE, & NATURAL RESOURCES LAW 27 (2009-2010)
Daniel J. Kain, Note, “It’s just a concussion:” the National Football League’s denial of a casual link between multiple concussions and later-life cognitive decline, 40 RUTGERS LAW JOURNAL 697 (2009)
Matthew T. Lockhart, Comment, Oliver v. NCAA: throwing a contractual curveball at the NCCA’s “veil of amateurism,” 35 UNIVERSITY OF DAYTON LAW REVIEW 175 (2010)
Peter R. Morrison, Shutting down the offense: why the Supreme Court should designate the NFL a single entity for antitrust purposes, 3 JOURNAL OF BUSINESS ENTREPRENEURSHIP & LAW 97 (2009)
John J. McDermott, Note, Direct v. indirect discrimination in European football: the legal differences between UEFA’s homegrown player rule and FIFA’s “6+5” proposal, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 267 (2010)
Danielle Moore, Note, The times they are a changing: secondary ticket market moves from taboo to mainstream, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 295 (2010)
Miguel A. Ramos, Comment, Game, set, match-fixing: will international anti-doping initiatives pave the way for similar reform for corrupt betting in tennis?, 32 HOUSTON JOURNAL OF INTERNATIONAL LAW 201 (2009)
Holly Rudolph, Horse sense and high competition: procedural concerns in equestrian doping arbitration, 2 KENTUCKY JOURNAL OF EQUINE, AGRICULTURE, & NATURAL RESOURCES LAW 47 (2009-2010)
Alexander M. Sanders, Jr. and Katie Fowler Monoc, William S. Stevens (1948-2008) and “The Common Law Origins of the Infield Fly Rule,” 4 CHARLESTON LAW REVIEW 423 (2010)
Wayne Schiess, Advice for drafting a new NFL collective bargaining agreement, 11 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 205 (2010)
Steve Silverberg, Note, Safe at home? Assessing U.S. efforts to protect youths from the effects of performance-enhancing drugs in sports, 35 BROOKLYN JOURNAL OF INTERNATIONAL LAW 271 (2010)
Jonathan Singer, Comment, Keep it clean: how public universities may constitutionally enforce policies limiting student speech at college basketball games, 39 UNIVERSITY OF BALTIMORE LAW REVIEW 299 (2010)
Jordan T. Smith, Note, Fighting for regulation: mixed martial arts legislation in the United States, 58 DRAKE LAW REVIEW 617 (2010)
Andrea Marco Steingruber, Sports arbitration: how the structure and other features of competitive sports affect consent as it relates to waiving judicial control, 20 AMERICAN REVIEW OF INTERNATIONAL ARBITRATION 59 (2009)
Last month, the NCAA imposed major sanctions on the University of Southern California football team because of a lack of institutional control. USC football will lose 30 scholarships, endure a 2-year postseason ban, and have some of its past wins vacated from the record books. USC is appealing the sanctions.
A key alleged wrongdoer for USC was its head football coach, Pete Carroll, who coached the Trojans from 2000 to 2009, during which time it was one of the best teams in college football. It was also during this time -- the NCAA has concluded -- that USC coaches and boosters gave out gifts to prospective recruits and their families and generally turned a blind eye to wrongdoing on campus. In January of this year, Carroll left USC to join the Seattle Seahawks as their head coach (Carroll reportedly received a 5-year, $33 million contract).
Among other infractions allegedly committed by Coach Carroll was his hiring of an extra coach -- former NFL special teams coach Pete Rodriguez -- above the number of coaches allowed by the NCAA. Carroll apparently did not list Rodriguez as a coach; instead he was listed as a consultant.
Paul Pringle of the Los Angeles Times has a story today on USC and Carroll, and interviews several persons for the story, including me. Here are some excerpts:
. . . But Carroll has been shy about mentioning that the NCAA found his quiet hiring of an extra coach, a big name from the NFL, was a major violation. The association also said that Carroll did not clear the hire with USC's compliance office, a finding that contradicts what he told The Times last year.
Now, as USC presses an appeal of the heavy sanctions the association imposed, Carroll's culpability could diminish the school's prospects of persuading the NCAA to ease the punishment, experts say.
"That's going to hurt USC on its appeal," said Michael Buckner, a Florida attorney and Trojan alumnus who specializes in sports law. "There are major rule violations found against not only his student athletes but against his coaching staff and a decision he made."
The decision, as The Times reported last July, was to hire Pete Rodriguez, a former NFL special teams guru, in violation of the association's cap on coaches. It gave USC "more than a limited competitive advantage" over other schools, the NCAA found. Carroll did not list Rodriguez on the coaches roster while he served as a "consultant" for the Trojan kicking squads during the entire 2008 regular season.
In its June report on the violations, the NCAA says USC's compliance office learned of Carroll's arrangement with Rodriguez only when an unidentified school complained about it in February 2009.
Carroll said last year that he could not give a "chronology" of his dealings with the compliance office, but "whenever we do anything, we go through all of the channels to figure out whether we can do it … whether it's OK, and we did that...." "We've tried to do this exactly the right way — compliance, all of that stuff, to the letter."
* * *
Vermont Law School professor Michael McCann, a sports law expert, said the Rodriguez affair goes to the heart of whether USC's administrators and its compliance staff had the will to rein in a marquee coach like Carroll, who won two national championships for the Trojans.
"The NCAA will say that Pete Carroll and others connected to him were making wrong choices, and the institution should have been uncovering it," McCann said. "It was probably hard for a compliance officer to confront Pete Carroll … but that's the way it is. Schools have to do more to not let the coach be so powerful."
To read the rest of the story, click here. To read commentary from Bruins Nation blog, click here. Also, I posted this story on my Facebook page and have received some excellent comments that I'll excerpt here:
Marc Isenberg (Money Players): ". . . I would like agree with your sentiment that, 'Schools have to do more to not let the coach be so powerful.' However, schools who allow their football coaches to become all-powerful make a lot of money. On the other hand, reigning in these powerful coaches is a sure way to lose more games. The AD doesn't wake up thinking, How can I please the NCAA today? Especially when he's having lunch today with the boosters." [Incidentally, Marc has just penned an outstanding piece on the late John Wooden in the Basketball Times]
Long Westerlund (attorney and management consultant): ". . . And I concur. You can't exculpate yourself by claiming ignorance when there's an affirmative duty. That's the whole point of oversight and accountability. 'Hey... we're not at fault for losing billions of dollars because a few of our bankers came up with these bad debt products and sold them as great investments.'"
B. David Ridpath (Ohio University professor and expert on college sports): " . . . Marc is correct in that schools will not do anything to prevent their coaches from becoming all powerful. Even if someone had the will to confront Carroll all Carroll would do is tell the president and AD to have that person(s) back off because it inhibits his ability to win--which the vicious cycle continues because presidents and AD's are even weaker than most compliance people. The risk vs reward is at play here and the reward is much greater than any risk . . . "
I think it's safe to say that organizational conflicts can distract athletic institutions from being their most effective. That was clearly the case at the University of Southern California, with Pete Carroll locking heads with compliance officers and other USC administrators, and it probably happens in less dramatic ways in other athletic departments and in sports agencies and front offices.
