New Sports Illustrated Column on Roger Clemens Arraignment

I have a new SI.com column on today's arraignment of Roger Clemens. Here is an excerpt:

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In the months ahead, Clemens' legal team will also consider whether to accept a trial by jury, as is Clemens' right under the Sixth Amendment, or to request a bench trial, which would leave the question of Clemens' guilt or innocence to Walton. Clemens is likely to accept a jury trial, as he could avoid a conviction if just one of 12 jurors does not find guilt beyond a reasonable doubt. That very scenario played out in the trial of former Illinois governor Rod Blagojevich, who earlier this month avoided conviction on 23 of 24 counts of lying to the FBI because one of 12 jurors dissented. On the other hand, if Clemens' legal team believes that jurors are likely going to regard Clemens with the same disfavor expressed by many Americans, a bench trial may become a more viable option.

Another key consideration for Clemens' legal team will be whether the former pitcher testifies in the trial. Clemens is not required to testify, and should he decline, the jury will be instructed to not infer guilt from Clemens' choice. There are practical consequences, however, to a defendant not testifying. If Clemens' case boils down to dismissing various prosecution witnesses as liars or persons with flawed memories, a jury may want to see Clemens himself take the stand, look people in the eye and capably respond to questions raised in cross-examination. Clemens' lawyers, however, may not be comfortable with their client answering carefully-crafted questions asked by seasoned and talented prosecutors. After all, federal prosecutors do not enjoy a conviction rate of approximately 90 percent by accident; they are often among the best trial lawyers around. Clemens cannot testify unless he is willing to face prosecutors' questions.

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Still, a number of attorneys remain perplexed by the logic of Clemens to seek a public Congressional hearing to repudiate allegations found in the Mitchell Report and then to testify without obtaining immunity, which would have precluded the charges he now faces. According to the attorney mentioned above, "The decision to have Clemens actually ask to testify before Congress, and then to testify without immunity, was idiotic. No good lawyer would have agreed to that without first obtaining immunity for the witness. That kind of decision-making doesn't bode well for Clemens in this trial. Even if Clemens insisted on testifying, a lawyer is useless if he or she only goes along with the client's wishes."

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To read the rest, click here. For a related video on SI.com, see

MLB financials and stadium funding

I don't understand finances enough to say much about Deadspin's (leaked) disclosure of the financial statements for a number of major league teams, which show that a number of the poorer small-market teams (including the Pirates, Marlins, and Mariners) actually have turned pretty good profits by keeping player payrolls way down and raking in (but not spending) revenue-sharing dollars. Several issues seem to be brewing here.

First, some are questioning revenue sharing as a workable means of leveling the economic playing field (at least without some other cost-and-spending measures, such as a salary cap or salary minimums) because of the incentives built into the system. Second, and relatedly, some are suggesting that teams (at least small-market teams) have no economic incentive to win because it is difficult to both win and turn a profit.

Third, and most interesting in these parts, is what this means for the future of stadium funding. The ridiculously advantageous deals that teams have been able to extort from communities have depended on cries of poverty from teams, which insist that they need the stadium to be economically competitive and that they currently lack the resources to pay for the stadium themselves and need substantial public funding. Certainly that was true for the Marlins, who are getting a roughly-$600 million ballpark for only $155 million ($35 million of which is a loan from the county) and keeping big chunks of stadium-generated revenue, with the city paying $125 million and the county about $360 million. But the Deadspin docs showed that the Marlins turned a $49 million profit in 2009. Several city officials would like to reopen the stadium deal and require the Marlins to contribute more towards the project.

The Marlins's response has been that "a contract is a contract." Which probably is true, if a bit arrogant. My contracts-professor colleague says it would take some showing that the city/county would not have entered the deal on these terms but for the Marlins' claims of poverty and that the Marlins either affirmatively lied about or withheld their true financial information--tough things to show. But this could have an effect on the deals that other small-market teams (notably the A's) are able to swing in the coming years.

The boondoggle nature of the public-stadium game is becoming clearer. But since it shows no sign of changing, I go back to my First Amendment interests. If public funds are going to continue pay for these cathedrals--which really only benefit the teams themselves--on largely false pretenses, then I should be able to wear whatever t-shirt I want, chant whatever I want, and decide whether or not I want to stand during coerced patriotic rituals. So there.

Another Potential Legal Dispute Over a Breached College Football Scheduling Ageement

The SportsLawTalk blog has identified a potential legal dispute brewing between Indiana University and Central Michigan University regarding a breached college football scheduling agreement. Several years ago, IU and CMU entered into an agreement calling for their football teams to play three games against one another, with the first and third games to be held at IU, while the middle game was scheduled to be played this fall at CMU. CMU won the first game in Bloomington 37-34 in 2008.

IU subsequently backed out of its scheduled road game at CMU, while maintaining its desire to host CMU for the final game under the agreement. CMU objected, arguing that by cancelling the middle game, IU had breached the entire contract, effectively cancelling all remaining games. The parties now dispute the amount of liquidated damages owed under the contract.

Specifically, the contract's liquidated damage provision provides: "If either party breaches this contract, the party causing the breach shall pay to the other party a liquidated sum of $150,000 for games #1 and #2, and $200,000 for game #3, which shall represent liquidated damages to the, non-breaching damaged party" (courtesy of Central Michigan Life). Under IU's interpretation of the provision, it is only required to pay CMU $150,000 for cancelling the second game, while CMU owes it $200,000 for cancelling the third game. Not surprisingly, CMU disagrees with that interpretation, and argues that IU owes it $350,000 for its breach of the contract resulting in the cancellation of the final two games under the agreement.

This is the second time in the last two years that a contractual dispute over a breached football scheduling agreement has become public, following the 2008 litigation between the University of Louisville and Duke University (discussed here and here). As I argue in a forthcoming law review article, these disputes are likely to continue to arise in the future. Specifically, many scheduling agreements signed back in the early 2000s (like the IU-CMU agreement) provide for relatively small liquidated damages amounts. Meanwhile, following the advent of the 12-game schedule in Football Bowl Subdivision college football, the price that major programs are willing to pay to host a single non-conference home game has skyrocketed, now regularly eclipsing $1 million per game. As a result, many schools find themselves in a situation where it is most economically efficient to simply pay the liquidated damages amount provided for in the older contract, in order to enter a much more valuable contract negotiated in today's market. However, because these scheduling agreements are not always clearly written, and do not always anticipate certain eventualities, disputes such as the one between IU and CMU are all but inevitable. Therefore, this is unlikely to be the last legal skirmish between two college football programs over a breached scheduling agreement.

NFL Sunday Ticket and American Needle

Elliot Turner at Wallstcheatsheet.com has written an interesting post speculating on the effect that the Supreme Court's opinion in American Needle v. National Football League had on the NFL's recent decision to make the NFL Sunday Ticket package available via the Internet. Previously, fans had to subscribe to DirecTV's satellite television service in order to receive the Sunday Ticket package.

Specifically, Turner concludes: "With the league’s practices called into question with regard to apparel [in American Needle], it appears that the powers that be smartened up in order to preempt what could have become another strong legal challenge to the NFL’s ability to negotiate contracts as a single entity."

Turner's piece is available in its entirety here.

Watching your favorite NFL Team Lose and Resulting Family Violence

Interesting item:

The National Institutes of Health spent $314,613 over two years on a study that determined that family violence increases about three times as much on the Fourth of July as it does after the local NFL team suffers an “upset” loss.

“Taken together our findings suggest that emotional cues based on the outcomes of professional football games exert a relatively strong effect on the occurrence of family violence,” the authors of the study concluded. “The estimated impact of an upset loss, for example, is about one-third as large as the jump in violence on a major holiday like the Fourth of July.”

The researchers also determined that an “upset” loss by the local NFL home team was not linked to nearly as great an increase in family violence as were Christmas Day, Thanksgiving Day, Memorial Day, New Year’s Day, and New Year’s Eve.

The study is titled Family Violence and Football: The Effect of Unexpected Emotional Cues on Violence Behavior and is authored by two economists -- Professors David Card (UC Berkeley) and Gordon Dahl (UC San Diego).

Will Texas Allow for Plaster of Pac Man?

By a vote of 5-1, the California State Athletic Commission decided this week that Antonio Margarito need not be reissued a professional boxing license on its watch following the revocation of his license after a Plaster of Paris-like substance was found on Margarito's hand wraps before his bout with “Sugar” Shane Mosley on January 24, 2009. Subsequently, all eyes in the boxing world immediately turned toward Texas, where Margarito could face Manny (Pac Man) Pacquiao in a potentially explosive welterweight showdown at Cowboys Stadium on November 13, 2010. Texas has a decorated history of issuing licenses to boxers that have otherwise been banned in the U.S.A., including Evander Holyfield following his administrative suspension in New York several years back, and the late Edwin (El Inca) Valero. While Holyfield, Valero, and others were all suspended elsewhere for reasons pertaining to own their health and well being, Margarito had his license revoked for endangering the health and well being of someone else. Will such a distinction make a difference to the Texas Department of Licensing and Regulation? We shall soon find out. But what we know right now are the rules and regulations that govern Texas’ decision. A quick review of those rules and regulations, as well as an intangible or two that may play into Texas’ decision, follows...

For the full article, please go to: http://www.8countnews.com/news/125/ARTICLE/2825/2010-08-20.html.

New SI.com Column: Roger Clemens Indicted

I have a new column on SI.com on the indictment of Roger Clemens. Here's an excerpt:

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Clemens, though, is not an ordinary person. For starters, he will be able to afford the kind of legal representation that few defendants could imagine. Being able to assemble a "legal team" is itself often a marker of wealth. Clemens will likely retain seasoned and prominent defense lawyers who have tried and won perjury cases and also those who will adroitly attack the DNA evidence offered by the government. Given that a conviction could carry a prison sentence, expect Clemens to spare no expense.

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Attorneys for Clemens will also attack the testimony and purported evidence of McNamee.

They will criticize his background, question his truthfulness, and through retained DNA experts, challenge the admissibility and reliability of the syringes and other paraphernalia purportedly containing Clemens's DNA. If there is even a shred of doubt as to how McNamee stored and handled the allegedly incriminating materials, DNA experts retained by Clemens will probably be able to paint a story that leaves the jury with serious doubt. Clemens' lawyers will also portray McNamee as throwing Clemens under the bus to avoid a government prosecution of his own.

The government's best evidence against Clemens may have nothing to do with DNA evidence. Instead, it may be the likely testimony of Pettitte, whom prosecutors will probably call as a witness. Pettitte told Congress in 2008 that Clemens admitted to him that he used Human Growth Hormone. Clemens' lawyers will have to show that Pettitte somehow misremembered the conversation he had with Clemens, or that Clemens may have made the comment in jest. Whether a jury will convict Clemens based alone on a disputed conversation with Pettitte or possibly conversations with other players -- but in the absence of credible physical evidence -- remains to be seen. Juries are not always predictable. And that itself may be Clemens' greatest worry.

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To read the rest, click here. Also did an interview with Sports Illustrated Inside Report on the indictment and one with The FAN 590.

Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee

A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog).

The panel divided on two aspects of personal jurisdiction analysis (warning: This post of interest to civ pro geeks only).

First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee's allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits "related to" the defamatory statements and thus the defamation claim; contacts "relating to" a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.

Second, the panel divided over the proper understanding of the "effects test" of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be "directed at" the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens' reputation would be felt in Texas. Moreover, the "sources" idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.

This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction--the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York.

New SI.com Column on whether Mets can Void Contract of Francisco Rodriguez

I have a new column on SI.com on the possibility of the Mets voiding the contract of closer Francisco Rodriguez ("K-Rod"), who was charged with assault by law enforcement officials and also suspended two games by the Mets for a post-game fight with his girlfriend's father that led to Rodriguez tearing a ligament in the thumb of his pitching hand. Here's an excerpt:

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Players have enjoyed success in grievance proceedings when they concern contractual terminations. In 1987, for instance, the San Diego Padres voided the contract of pitcher Lamarr Hoyt for what appeared to be solid grounds: Hoyt had been sentenced to jail time because of multiple drug charges, including intent to distribute cocaine and attempting to smuggle drugs from Mexico into the U.S. As a drug smuggler, it would seem that Hoyt did not "conform his personal conduct to the standards of good citizenship and good sportsmanship." Nonetheless, the Players' Association filed a grievance and an arbitrator, George Nicolau, deemed the punishment excessive and restored Hoyt's contract.

Keep in mind, the Players' Association has a duty to protect the fiduciary interests of all players. It must therefore protect against precedent-setting outcomes, such as the voiding of a guaranteed contract. In the context of Rodriguez, if his guaranteed contract can be voided for getting injured in a fist fight, what else could trigger a voidance? Could the very essence of guaranteed contracts be jeopardized? The fear of the so called "slippery slope" often supplies motivation to the Players' Association to fight a team, even if the public finds a particular player's behavior reprehensible.

Instead of voiding Rodriguez's contract, the Mets could try to reach a financial settlement that ends Rodriguez's affiliation with the team. A settlement, which would necessitate approval from Rodriguez and the Mets, along with support from commissioner Bud Selig and the Players' Association, could work to everyone's advantage. Rodriguez would likely obtain a significant portion of the remainder of his contract and become a free agent. Given that he is one of the best closers in the game and still only 28 years old, he would probably attract significant interest from other clubs. For their part, the Mets would rid themselves of a controversial and injured player who let his team down. The team would also save significant money in the process.

A settlement, however, may prove complicated and acrimonious, and also be skewed in favor of Rodriguez. That is because contract-ending settlements between big league teams and players are usually preceded by a grievance filing and also end up being tilted in favor of the player.

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To read the rest, click here.

Dustin Johnson and the Fairness of Punishing Him: Lessons from the Law

If you watched the final round of the PGA Championship this past weekend, you probably feel bad for Dustin Johnson. He held a one-shot lead entering the final hole and bogeyed that last hole, leading--so it seemed--to a three-way tie with Bubba Watson and Martin Kaymer.

Losing a lead on the last hole and having to enter into a playoff would probably be disappointing to any golfer. Especially in a championship.

As it turns out, though, Johnson was about to experience a profound and unique kind of disappointment. Instead of entering into a playoff, Johnson received a two-stroke penalty for grounding his club (meaning the club touched the earth behind the ball prior to the swing) in a bunker, which is against PGA rules, though is allowed on most places on a golf course. Johnson, like other golfers, had been briefed on the rules of the course before the tournament and warned that it had many sandy areas which would be considered bunkers. Here is a video of what happened from SI.com:



Ashby Jones of the Wall Street Journal wonders whether the penalty fits the crime, since Johnson's mistake gave him no apparent advantage. Jones interviews me for his story, which is excerpted below:

But is it fair to penalize someone when the rationale behind a rule isn’t triggered? Golfers are prohibited from grounding their clubs in sand traps because such a move could disrupt the lie of the ball — or, by dislodging just a bit of sand, clear the club’s path to the ball ever so slightly.

But in the case of Johnson, it was fairly clear that neither happened. His grounding of the club appeared so slight — it was hard to imagine the move had given him an advantage.

In such a case, should the penalty still be enforced?

Writing at the WSJ, Jason Gay has his doubts: “Instead of a rollicking three-way finish, the 2010 PGA will be remembered for a cold-blooded, by-the-book decision — enforcing the rules of a bunker that nobody outside of a few officials knew was a bunker.”

“It’s an interesting question: what should the PGA do when applying a law when the rationale behind the law isn’t really being promoted?” asked Michael McCann, a sports law expert at Vermont Law School. “Should the PGA start taking appeals?”

In law, said McCann, a sanction can often be reduced post hoc. If you’re given a stop-sign violation for coming to a rolling stop at a deserted intersection, a judge can bump cut your fine in half, let you off with a warning, etc.

But in sports, said McCann, there often isn’t time to take an appeal, especially in this instance, when darkness is settling in and other golfers (not to mention thousands of spectators and millions of television viewers) are waiting for play to continue. “It’s just not practical,” said McCann.

McCann said that that’s why rules in sports are often applied so formalistically — for the sake of efficiency.”It’s the old debate about brightline rules versus flexible standards,” he said. “Neither is perfect. Bright line rules are good for predictability, but sometimes lead to unfair outcomes. More flexible standards can lead to more fair outcomes in some situations, but lack predictability and sometimes efficiency.”

To read the rest, click here. For a couple of good comments from other folks on my Facebook page:

Jordan Ablon: My take is that the PGA did nothing wrong. As bad as the rule may be, it was a rule and he had plenty of notice. He chose not to take 2 minutes to read the rule. It was a MAJOR event and he didn't read the rules of an unusual course.

Marc Isenberg: On the face, the rule is sensible (it was, after all, designed as a bunker) and once it was violated, you knew the PGA was going to mete out "justice" like Inspector Javert. But, if the PGA wanted those bunkers to be treated as such, then the galleries should not have been allowed in the "field of play." For four straight days, until the 72nd hole of a major championship, the PGA did not do their job. This was entrapment. Literally (bunkers = traps, for those who don't follow golf).

Signing with a Big League Team out of High School: College and Law School are still reachable goals

From DJ Bean of WEEI in Boston (bold added):

Multiple industry sources have indicated to WEEI.com that the Red Sox and fourth-round pick Garin Cecchini are closing in on a deal that should be completed prior to midnight’s deadline for signing draft choices.

Cecchini, a shortstop out of Barbe High School in Lake Charles, LA, who is expected to play third base as a professional, is verbally committed to play at LSU next season. A committed student and aspiring lawyer, Cecchini wanted to go to college and told major league teams that he would indeed do so if he wasn’t given a $1.75 million signing bonus.

To add to Bean's story, I think it's always worth noting that college and law school/other graduate school are not "one-shot" deals in life. I often point that out in regards to NBA players who skipped college to take guaranteed income. People can always go back to college later in life, and that is certainly true of law school as well, as many law students are in their 30s or older (and, for what it's worth, I've found that law students with life experience are often among the better or even best students).

So if baseball doesn't work out for Cecchini after a few years in the minors, he'd still only be 21 years old. And while, as a former pro baseball player, he would no longer be eligible to play NCAA college baseball and thus could not get a baseball scholarship, he could still afford college tuition and law school thereafter courtesy of a $1.75 million signing bonus from the Red Sox (assuming, of course, he's not irresponsible with his money -- if he is, he probably shouldn't be going to law school anyway).

In fact, MLB teams often guarantee college tuition for high school players if they end up not making it (see this article on former Red Sox draft pick Steve Lomansey, whom the Red Sox lured away from a scholarship to Boston College). Players can also try what's probably a very difficult route of going to law school while playing in a pro league. Minnesota Supreme Court Justice and former Minnesota Viking Alan Page did just that and has done extremely well.

Why to care about cheering speech

I spend a lot of time writing and talking (here and in my scholarship) about the free speech rights of fans at sporting events. At times, this has me defending yo-yo's who are just trying to piss people off.

But every so often some meaningful speech can, does, and should occur at sporting events. Case in point is yesterday's protest against MLB and Commissioner Bud Selig allowing the 2011 All-Star Game to be played in Arizona. Now, the fans who ran onto the field were wrong and should have been arrested. Similarly, the fans who hung a banner in the center-field batting eye (a place that banners are not allowed) were wrong, although they should have been allowed to hang or display the banner any other place that banners and signs are permitted.

The point is that there is no place more appropriate for a protest of MLB policies, and the politics of those policies, than in the stands at a baseball game.  It is an appropriate subject for baseball fans to talk about. And players and other fans are the appropriate audience for the speech. In other words, we need to protect cheering speech at sporting events because that speech often has a real and significant political core. And if protecting a genuine political protest means also having to tolerate some "Yankees Suck" t-shirts or some profanity-laced fan tirades, well, that is the cost of living in a society with free speech.

The Impact of a Slotting System in the MLB Draft on Teams and Agents

Interesting note from ESPN.com's Mike Andrews, the President and Executive Editor of SoxProspects:

. . . the deadline for major league teams to lock up their remaining unsigned picks from the 2010 draft is tonight at 11:59 pm ET. Entering Monday, the Red Sox have signed sixteen of their fifty-two picks. Since 2005, Boston has signed, on average, about twenty-eight picks per season. This year, the Sox selected several players that were expected to be “tough signs” from the get go, and as such it’s expected that the team will be signing another crop of draftees before the clock strikes midnight tonight.

One other consideration is that MLB’s Basic Agreement (the CBA) expires after the 2011 season, and there have been rumblings that a mandatory draft slotting system could be put in place with a new CBA – so some big market teams may be pondering spending the cash on draftees this season and next while the getting is good. . . .

As I wrote in my piece on why MLB teams can't trade draft picks, the MLB Draft doesn't work like the NFL, NBA, or NHL drafts, where, generally speaking, the best players are drafted first.

In the case of the NBA and NHL drafts, salaries for drafted players (at least those taken in the first round) are "slotted" in their respective collective bargaining agreements. So if you're drafted 15th in the NBA Draft or the NHL Draft, your salary is largely pre-determined and can't be negotiated to a significantly different amount than the amount slotted for the 15th pick (see the NBA's CBA, Exhibit B for actual numbers). And you're better off being drafted 15th instead of 16th, because the slotting values descend from the first pick down, so the 15th pick always earns more in his contract than the 16th pick. The NFL doesn't slot salaries for draft picks, though there is a salary cap for the amount each teams can spend on all of their draft picks and a slotting system seems likely to be found in the next NFL CBA.

Baseball is different. Because there is no slotting of salaries for MLB draft picks (though salaries for each draft slot are "recommended" by the commissioner in an non-binding way) and because there is no rookie salary cap for MLB draft picks, some very talented prospective draft picks' whose salary demands are too high for small market teams, and who have the leverage of being able to play college baseball, are not drafted by small market teams with high draft picks. Instead, they fall in the draft to big market, more successful teams like the Yankees, Red Sox, and a few others which have lower draft picks but can meet those players' salary demands. So players whose talent, absent salary demands, would make them high draft picks fall to lower selections and are financially rewarded for that happening -- and in a 50-round draft, it happens quite a bit. To illustrate, here is New Orleans.com's Ken Trahan, who reports today on the Red Sox essentially raiding LSU's baseball team through the draft:

LSU's baseball recruiting class has taken yet another major hit. Delgado Community College outfielder Lucas LeBlanc has opted to sign with the Boston Red Sox.

On a flight to Boston this morning. Just last Monday, LeBlanc turned down a signing bonus of $325,000 and he told many that he would be attending LSU. The Red Sox upped their offer and got their man, reaching an agreement over the weekend. Sources tell NewOrleans.Com/Sports that LeBlanc may have gotten close to $500,000 to sign. . . . LeBlanc was an 11th-round draft pick of the Red Sox in the Major League Baseball draft.

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Meanwhile, Boston may continue taking a chunk out of the LSU baseball talent pool.

The Red Sox are expected to offer 'top ten' money to compensatory first round selection [and LSU rising senior] Anthony Ranaudo (38th overall pick), according to one source.

Also, Barbe Louisiana [high school] infielder Gavin Cecchini (4th round selection) will reportedly be offered mid-first round money to sign with Boston.

Players dropping for financial gain also occasionally happens in the NBA draft, where there is no slotting for players selected in the second round -- those players usually receive the league minimum, but sometimes an international player falls to the second round because it doesn't make financial sense for him to join the NBA if he is going to be subject to first round slotting when he could stay in Europe making millions. But that is uncommon and doesn't happen nearly as often as it happens in baseball.

If a slotting system is adopted in MLB effective for the 2012 draft, we could see some big spending from MLB teams in this year's and next year's drafts. This will be their swan song for using non-top draft picks to draft top players with big signing demands.

Also, beginning in 2012, the work of baseball agents (or in some cases a relative or "family friend" acting as a de facto agent) would seem poised to change.

While baseball agents presumably want their clients to get drafted as high as possible even in today's draft system, I suspect seeing a client "fall" to a team like the Yankees or Red Sox might actually be preferred over seeing that client taken earlier by the Pirates or Marlins or a similar small market team. That would change, though, in a draft where salaries are predetermined, regardless of a drafting team's resources. In that setting, the goal of the agent would clearly be to have his or her player drafted as high as possible. So agents could still play a role -- they could tell teams that unless a represented player who has remaining college eligibility is drafted in the first round (or by whatever threshold), teams would be better off drafting other players since the represented player will attend college or in some cases continue to play college baseball. The slotted money has to be good enough to turn pro.

More on Title IX: When Gregg Easterbrook Attacks

Over at ESPN.com, Nancy Hogshead-Makar, the senior director of advocacy for the Women's Sports Foundation and professor at Florida Coastal School of Law, has a good article up defending the recent decision in the competitive cheerleading-Quinnipiac Title IX case. Hogshead-Makar does a particularly strong job of responding to Gregg Easterbrook’s attack—also posted on ESPN.com—of the decision and of Title IX itself. For those of you who missed it, Easterbrook’s column focuses on two arguments: First, he essentially concludes that Title IX is no longer needed, has descended into “absurdity,” and “slog[s] on, causing asinine intrusions.” Second, he challenges the court’s conclusion that competitive cheerleading is not a sport for purposes of Title IX. As Easterbrook puts it, “where does a federal judge get off saying it is not athletics athletics yet a volleyball bouncing back and forth across a net is?.... Courts have no business sticking their noses into such issues.”

I respect and enjoy Easterbrook’s work (both sports and non-sports related), but he misses the mark on both arguments. Let’s take his attack on Title IX first. Easterbrook relies largely on anecdotal evidence and a loose (or mis)reading of the opinion to draw the sweeping conclusion that Title IX is unnecessary, if not destructive. For example, Easterbrook asserts that “[g]irls' and women's sports are now successful, popular and in some cases even self-sustaining. You can find the proof of that at almost any high school in the United States. My kids' high school fields 15 girls' or coed athletic teams.” Of course, Easterbook’s kid goes to Winston Churchill High School (Easterbrook links to that fact in his column—I didn’t track it down on my own), which happens to be ranked as one of the top 100 high schools in America, and is located in Potomac, Maryland, which happens to be one of the wealthiest and most well-educated towns in America.

Easterbook can’t really believe that the opportunities for female athletes at Churchill High School prove that women have equal opportunities across the country and that Title IX is unnecessary--that’s like arguing that we no longer need Title VII because we have a black president--and Hogshead-Makar takes him to task for ignoring the evidence. She notes that the “simple facts are incontestable. Women still lag substantially behind men overall nationwide in every measure of equality in athletic departments, including scholarships, budgets, coaching salaries, facilities and competitive opportunities. In 2005-2006, male athletes received approximately $162 million more than female athletes in college athletic scholarships at NCAA member institutions.” Significantly, the impact of this inequality extends well beyond sports. Earlier this year, a column in the New York Times detailed two studies that showed that increasing girls’ sports participation had a direct effect on women’s education and employment and on long-term health.

Has Title IX helped women achieve more athletic opportunities? Yes. But, as Hogshead-Makar points out, there is more work to be done, and Title IX is an important tool for ensuring that women get equal access and opportunity to athletics (and for maintaining the access and opportunities they eventually achieve).

Easterbrook’s second criticism—that a judge should not be responsible for defining what activities constitute a “sport”—simply misses the point. The Quinnipiac case did not ask the judge to decide if competitive cheerleading constitutes a sport. Instead, the case asked if competitive cheerleading constitutes a sport for purposes of Title IX. That’s not just a semantic distinction. As Judge Underhill explained, for an athletic opportunity to count as a sport under Title IX, “it must be genuine, meaning that it must take place in the course of playing an actual ‘sport’ and it must allow an athlete to receive the same benefits and experience that she would receive if she played on another established varsity squad.”

Judge Underhill did not conclude that competitive cheerleading was unworthy of being called a “sport,” and was somehow inferior to other sports. Instead, he concluded that it was unworthy of constituting a sport for purposes of Title IX because it did not provide athletes with the same experience they would receive if they played on an established varsity squad. Why? First, the team competed against varsity cheer teams, club cheer teams, sideline cheer teams, all-star teams, and even high school cheerleaders. As Judge Underhill wrote, “no other Quinnipiac varsity team is forced to play such a motley assortment of competitors…If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.” Second, there was no uniform set of rules for the cheerleading competitions—the team competed in 10 events with at least 5 different sets of rules. Third, no members of the cheer team were recruited off campus. Instead, every cheerleader was selected from students already enrolled at Quinnipiac. Fourth, there was no genuine postseason competition—the “national championship” for competitive cheerleading was open to all schools’ cheerleading teams, even non-competitive cheerleading teams. And, the championship included an element never used during the regular season competitions (a “spirit” segment, where teams were judged based on the reaction their routine elicited from the crowd).

In other words, Judge Underhill’s decision had nothing to do with competitive cheerleading’s status as a “sport.” If any college had a team—whether it be cheerleading, volleyball, or baseball—that competed against a “motley assortment” of teams without a uniform set of rules, recruiting, or a real postseason, it would not be considered a sport for purposes of Title IX because it would not provide student athletes with a genuine, real opportunity to participate in varsity athletics.

Reasonable minds will continue to disagree about the methods and impact of Title IX, but if we can agree that gender equality in athletic participation is a goal, we still have a long way to go, and the Quinnipiac decision is a step in the right direction. The case did not sound the death knell for competitive cheerleading. Instead, it will force schools to improve the sport so that it can provide a genuine athletic opportunity for student-athletes. As Hogshead-Makar wrote, “[c]heerleading has long been part of athletic events and will continue to be part of athletic departments. The opinion will not change that fact. Instead, the opinion assures that Quinnipiac will provide all female athletes…with the full range of varsity benefits.”

[For an interesting perspective on competitive cheerleading, please check out this new post from Howard Jacobs over at the Athletes Lawyer blog.]

Update: The College Sports Council, a national coalition of coaches, athletes, parents, and fans who are devoted to preserving and promoting the student athlete experience, has posted a response to Hogshead-Makar's piece. It is definitely worth a read.

SI.com Column on Painkiller Abuse in the NFL

I have the Viewpoint Column today on SI.com and it's an extensive piece on painkiller abuse in the NFL. Here is an excerpt:

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But for the vast majority of players, unless there is reasonable cause, the collective bargaining agreement mandates no testing for the likes of cocaine, marijuana, amphetamine, opiates (morphine and codeine) and phencyclidine (PCP) until April. Over-the-counter pain medicines, such as Tylenol or Aleve, are not tested, nor are prescription pain medicines such as Vicodin, Demerol, Percocet or OxyContin.

By contrast, testing for steroids and illegal performance enhancers occurs throughout the year.

* * *

Given that NFL players are tested for substances of abuse only during the offseason and for steroids throughout the year, while the other two "physical" pro leagues -- the NBA and NHL -- test for substances of abuse throughout their seasons, a cynic might infer that the NFL and NFLPA are more worried about players using steroids to get bigger and stronger than those same players using illegal drugs for treating pain or getting high.

* * *

. . . As NFL players become bigger and stronger, and as their hits and tackles become harder and more injurious, do the NFLPA and the league have an increased responsibility to monitor pain relief? And how can the two determine if players are using painkillers to treat pain or merely to get high?

These won't be easy questions to answer in a sport that requires physical collisions at high speeds and a league that cannot -- and should not -- monitor the lives of its players 24 hours a day, seven days a week.

But they are important to ask because pain is a sensory response to bodily damage. If pain is muted, a person may not appreciate the damage inflicted. If that person endures the violence of NFL games week after week, not adequately comprehending bodily damage could cause serious and long-term health problems. These questions are also important to ask because NFL player contracts usually contain more non-guaranteed money than guaranteed, and NFL players are expected to "be tough" and "play hurt." One could easily imagine them feeling pressured to use whatever it takes to stay on the field.

Some in the medical community believe that a rise in painkiller abuse among NFL players could prove uniquely telling. Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania and a noted expert on the intersection between sports, medicine and ethics, believes there is a potential and understudied link between painkillers and other controversial injury issues for the NFL, mainly concussions. "Painkillers are one kind of a marker of a level of injury suffered by NFL players," said Caplan. "Their level of use can indicate the toll of the game on players."

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To read the rest, click here.

The Impact of American Needle v. NFL on Sports Apparel Industry

Daniel Walsh of the Advertising Specialty Institute has a very thoughtful and comprehensive article on the litigation background of American Needle v. NFL and the impact of the decision on the sports apparel industry. The nearly 2,000 word article titled, "Reversing Field," is unique because it looks at the decision partly from the vantage point of the sports apparel industry, as opposed to offering solely an antitrust or sports business perspective. Here is an excerpt:

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Then came the 1980s and a fashion explosion. Sports caps and jerseys became hugely popular, thanks to fashion tastes and the rise of sports on cable television. “It just became a major, major thing,” [Jeff] Carey [American Needle's in-house counsel] says. “Sales went through the roof. We grew accordingly.”

So did others. New businesses jumped into the mix, and the sports leagues gave out licenses to more and more producers. Licensed merchandise flooded the market. The increased supply and competition drove down prices. In turn, that decreased NFL royalties from the sales, Carey says.

It also created “chaos,” according to Matt Powell, an analyst with SportsOneSource, which follows the sporting goods industry. Different firms would make products of varying quality, some better than others, Powell says. “The league really realized that this was a failed business concept,” he says. “Let’s put aside the legal side for a moment. This just wasn’t working, and the league had to do something about it.”

NFL owners voted in 2000 to move toward exclusive licenses, an increasingly common trend in licensing. Among the exclusive licensees was Reebok, which claimed the hat contract at American Needle’s expense After that move, NFL hat prices rose $10. “I remember American Needle had this huge catalog in like 2000,” says Dave Weintraub, chief operating officer of Pinnacle Promotions in Atlanta. “It was just beautiful. It was like 150 pages. Then they just fell off the map.”

License to Succeed?

Licensing is often the first and last word when it comes to professional sports merchandise. “You’re in with a license situation, or you’re not,” says Bob DeMasse, co-owner of Colorado-based APC, which once held exclusive promotional product licenses for the NBA’s Denver Nuggets, NHL’s Colorado Avalanche and Colorado Rapids of Major League Soccer. “You’re obviously a major player if you’re in, but if you’re not, there obviously are no options.”

But, while licensing may seem like a golden ticket for a few lucky distributors, it can also be a millstone. For one, some leagues offer preferred-bidder status to companies that make up-front payments. Preferred status allows distributors, for example, to be 5% higher than the next closest bid and still win the contract. The problem is those up-front fees can run into the tens or hundreds of thousands of dollars, depending on the size of the contract being pursued. These fees and licenses can outweigh almost everything else.

Tim Lavin thought his NFL ties would help secure business for his company, Mad Dog Promotional Products. The former University of Southern California starting fullback had handled security for the NFL’s San Francisco 49ers and Oakland Raiders, as well as the Golden State Warriors of the National Basketball Association, so he had the contacts. As it turns out, it wasn’t enough.

“The tricky part is, even if you had $200,000 to shell out, I find with so many people involved, there’s heavy bidding,” Lavin says. “Your profit margin is so low to begin with that we’d be lucky to get a 10% to 15% markup. Then if you’re paying 8% to 9% to the NFL, the profit margin is very low.”

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To read the rest, click here.

This Day in Sports Law: The Cubs say "Let There Be Light"

Today, August 8, is the 22d anniversary of the first night game at Wrigley Field, between the Cubs and the Phillies. Or at least the first attempted night game. Play was called because of rain after 3 1/2 innings--which many took as a sign from God--and the first official game was played the following evening, against the Mets. So the date still is appropriate, even if you do not read this until tomorrow.

This is an appropriate part of our "This Day in Sports Law" series, since the whole thing occurred in the shadow of zoning and land-use wrangling, primarily between the residents of Wrigleyville (supported by state and local government) and the Cubs and Major League Baseball. The Cubs began pushing for lights in the early 1980s, even threatening to leave Wrigley. In 1984, MLB Commissioner Peter Uebberoth threatened that if the Cubs made the World Series, their home games would be move to Busch Stadium (a threat that became moot when the Cubs gagged a 2-0 NLCS lead to San Diego). The City Council dug in, initially passing an ordinance that effectively banned night baseball in Chicago (grandfathering in Comiskey Park); the Illinois General Assembly did the same. The controversy even worked its way into an underrated Chicago movie, Nothing in Common, where Tom Hanks is approached to sign a "No Lights at Wrigley" petition and Hanks says he already signed.

The City finally relented, agreeing to a maximum of 18 night games each season, none on Fridays or Saturdays, with sharp restrictions on street parking to push people into paid lots or onto the El. The numerical limit has been played with--the Cubs play 28 night home games this year, although the Friday/Saturday restriction remains in place (most of the night games are Mondays and Tuesdays, when the team returns from a road trip).

I began going to Wrigley regularly during college, after lights had been installed, so I missed the great debate. But I always have enjoyed night games there (I should add that I have an aerial photograph from this night hanging in my office). They did a wonderful job in designing the lighting system. They used wide, low rows of lights rather than tall towers. And the lights sit atop the park roof, which only extends (basically) foul line to foul line, so there are no lights behind the outfield or directly behind home plate. This gives the place a unique glow--almost like a municipal park.

The park also plays very differently at night, especially in spring and fall--the cold weather means the wind blows in and it plays like a pitcher's ballpark.

Should NCAA Allow Isiah Thomas to be a college head coach and a consultant to an NBA team?

Jeff Eisenberg of Rivals.com has a very interesting piece on the New York Knicks hiring of its former head coach and president of basketball operations, Isiah Thomas, to be a consultant to the team. Thomas, who was fired by the Knicks in 2008, is currently the head coach of Florida International University's men's basketball team.

Here are some excerpts from Eisenberg's piece, which details the potential conflicts of interest:

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At a time when Boise State coaches can't even offer condolences to the family of a deceased recruit without facing NCAA punishment, the organization apparently sees no competitive advantage in a coach receiving a paycheck from an NBA team. The NCAA says it won't step in to prevent Thomas from working for the Knicks even though the franchise admitted in a press release on Friday that one of Thomas' duties will be "player recruitment."

Under this unique arrangement, Thomas would be in position to promise potential top recruits that he'll recommend them to the Knicks if they agree to play for him at FIU. Furthermore, he'll have the chance to advise FIU players whether or not to leave school early, a potential violation of NBA rules that forbid league personnel from having contact with players who haven't formally entered the draft.

* * *

NCAA spokeswoman Jennifer Royer e-mailed the following statement on Friday when asked whether her organization had any concerns about Thomas' arrangement.

"According to an official interpretation on June 6, 2001, NCAA member institutions are provided the discretion to establish their own policies regarding employment and income arrangements between their athletics department staff members and professional sports organizations. An NCAA coach must, however, still comply with NCAA bylaws as they relate to the recruitment of prospects and the scouting of opponents."

What the NCAA may be doing by taking that stance is opening another loophole for coaches to exploit. If Thomas' consulting role with the Knicks helps FIU secure an extra recruit or two, how long will it take Bruce Pearl to ask for a similar role with the Memphis Grizzlies or Billy Donovan to hire a Miami Heat scout as his director of basketball operations?

Amazingly enough, the NBA may end up being the organization that forces Thomas to choose between FIU and the Knicks. Since the hire could violate league rules that forbid college coaches from having jobs with NBA teams, spokesman Tim Frank told the Associated Press that the league is looking into it.

"We are reviewing the agreement, in consultation with the Knicks, for compliance with league rules," he said.

To read the rest of Eisenberg's article, click here. To read our blog's previous coverage of Isiah Thomas, who has generated a number of sports law topics over the years, click here.

The Yow Plan: Universities Sanctioned by the NCAA Should Sue Agents who broke NCAA Rules

The new Athletic Director of N.C. State, Debbie Yow, has a message for agents who intend to break NCAA recruiting rules while on the N.C. campus: if you do, and the NCAA punishes us with sanctions, we'll be suing you. Ken Tysiac of the News and Observer has the story, which is excerpted below.

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. . . Yow said the letter will warn agents that if they violate the law while dealing with N.C. State athletes, the school will sue them. "I'm going to protect N.C. State University from any agent abuse," Yow said.

North Carolina's Uniform Athlete Agent Act requires agents to register with the state and refrain from promising anything of value to athletes while they're in school.

* * *

Violations of the law are a Class I felony in North Carolina. The law allows a civil fine of up to $25,000, but ACC commissioner John Swofford would like unscrupulous agents to face more substantial penalties.

Yow hopes the potential of a lawsuit that could extract greater damages will be an additional deterrent. The Uniform Athlete Agents Acts in North Carolina and Maryland specifically mention that an educational institution can seek damages, including lawyers' fees, from an agent (or former athlete) who injures the school.

It's difficult, however, to assign a potential dollar amount for those damages in court. It's conceivable that serious NCAA violations could, for example, force a school to give back hundreds of thousands of dollars in NCAA tournament money. If a school is banned from bowl participation, violations could cost a school more than $1 million.

But legal experts say it would be difficult to hold an agent responsible for such large amounts, because such serious penalties usually are levied only when a lack of institutional control on the part of the school accompanies the violations.

"You're going to have this question about whether the harm was caused by the action [of the agent] or by the failure of the institution effectively to control," said Paul Haagen, a Duke professor and co-director of the university's Center for Sports Law and Policy. "There would be a contributory negligence kind of thing there. That would be a difficulty [in court]."

* * *

Vermont Law School professor Michael McCann said there's a public relations advantage, though, in sending the letter, even if it doesn't have a big legal impact.

"Is it a good idea to send a letter?" said McCann, who specializes in sports law. "In some ways it's a deterrent. It also shows that the school cares."

* * *

Two Additional Thoughts:

1) As raised by ESPN's Seth Wickersham in a Facebook conversation: "It seems like she put her own coaches on notice as well, right? I mean, a lot could come out in a possible court case, if it ever went that far." I agree with Seth. If NC State were to sue an agent for damages resulting from an NCAA sanction, the NCAA States coaches who breached NCAA rules would be subject to the discovery process and possibly have to testify.

2) Another form of sanction for unscrupulous agents is for the Players' Associations that license the agents to sanction them, including through a suspension or license forfeiture. That type of sanction, though, would not directly benefit a university sanctioned by the NCAA.

Join the "What is Sport" Conversation

ESPN's Page 2 is seeking opinions, in the wake of the Title IX/cheerleader case, on what is not a sport and why. Join the conversation.

USA Swimming's Attempts to Ban Technologies

Tara Bhupathi, a rising 3L at the University of North Carolina School of Law and an Editor on the North Carolina Journal of Law and Technology, has posted on SSRN a copy of her article in the New York State Bar Association's Art, Entertainment and Sports Law Journal on USA Swimming's attempts to ban certain technologies and the antitrust implications of those attempts. USA Swimming is the national governing body of competitive swimming in the United States. Tara was a member of the women's crew team at Georgetown University, from where she graduated in 2006.

Here's an abstract of her article:

This article argues that the Ninth Circuit acknowledged the risk of financial interests influencing decisions to ban certain equipment because of the broad economic scope of the sports industry, governing bodies' unchecked authority over said market, and the sentiment that, in light of each governing body's heavy reliance on sponsorships, complete disregard of financial motives in governance is no longer appropriate.

Further, courts should continue to implement the Ninth Circuit's policy of increasing scrutiny of governing body financial interests in rule-making for two reasons. First, shedding light on the complex and competing financial interests among industry players, including fans, athletes, teams, leagues, communities, media, and sponsors, should enhance confidence in the purity of a governing body's decisions. Second, abandoning complete deference in governing bodies could ease manufacturers' fears of investing in technology only to be subsequently banned due to collusion between market competitors and the governing bodies. This in turn would mitigate the stifling effect the latter have had on technological developments in sports equipment.

This is a very informative and interesting article. I recommend checking it out.

Criticism of Biediger v. Quinnipiac University and the Rejection of Competitive Cheer as a Title IX Eligible Sport

Over on Saving Sports, the official blog of the College Sports Council which advocates reform of Title IX, Eric McErlain argues on behalf of competitive cheer qualifying as a Title IX sport. He also takes issue with U.S. District Judge Stefan Underhill's recent opinion in Biediger v. Quinnipiac University, where Quinnipiac was ordered to keep it's women's volleyball team in order to comply with Title IX. McErlain contends that the lack of international and professional competitions for competitive cheer should not impair competitive cheer's chances for Title IX recognition since similar opportunties for softball are on the decline as well (and Eric cites Holly Vietzke post on our blog titled Is Softball on Life Support?). Eric also notes:

Despite Judge Underhill's ruling, female student athletes have already decided on their own that competitive cheer is a sport. As of the 2008-09 academic year, competitive cheer was more popular with female student athletes in the nation's high schools than golf, field hockey, lacrosse or gymnastics. Overall, it is the ninth most popular sport for female high school students.

For an additional reading critical of Judge Underhill's analysis, see this column from Gregg Easterbrook on ESPN.com.