The 3rd Annual Tulane Law School National Baseball Arbitration Competition took place this past weekend at Tulane Law School. The event was a huge success, with 38 teams from schools across the country participating in a simulated baseball salary arbitration competition. Special thanks to Professor Roger Abrams and Jon Fetterolf for serving as the judges for the final rounds of the competition on Sunday and for putting on an entertaining and educational presentation for all of the competitors on Saturday afternoon. Thanks also to Armando Velasco, Jeffrey Sundram, Blake Simon, Chris Weema, Melissa Desormeaux, Danielle Moore and the Tulane Sports Law Society for hosting a great event.
Rick and I are hosting an on-line 1-credit continuing legal education tomorrow (Wednesday January 27) from 12 p.m. to 1 p.m. Eastern Time with West Legal Center to discuss the assorted legal implications of Mike Leach's firing. A number of us on Sports Law Blog have discussed the Mike Leach firing. Here is West's description of the CLE:On December 28, 2009, Leach was suspended indefinitely by Texas Tech pending investigation of alleged inappropriate treatment of a player. School officials gave Leach an ultimatum--apologize to James in writing by December 28 or Leach would be suspended. Leach refused to do so. Leach immediately sought an injunction that would allow him to coach in the 2010 Alamo Bowl. However, on December 30, Texas Tech fired Leach, calling his refusal to apologize to James "a defiant act of insubordination." On January 8, Leach formally filed suit against Texas Tech for wrongful termination. He claimed that school officials not only fired him without cause, but issued defamatory statements in a willful attempt to keep him from being hired elsewhere.For more on Wednesday's CLE, click here. It should be a good event and we hope to keep it interesting and informative.Rick Karcher and Michael McCann will take you into the world of high profile employment and sports contracts. They will provide an update on the controversy and offer analysis on the upcoming legal process.
I have a new SI.com column on the impact of Javaris Crittenton's plea deal on Gilbert Arenas. Here's an excerpt:
Both law school and college football view it as important to harden and battle test your charges the best you can before you turn them out into the real world.He then recalls a discussion from his first year contracts class:
In my class, the unlucky student called upon to recite Pennoyer [v. Neff] was brutalized from beginning to end. When the student finished, the professor said in a rather sinister tone, “Sit down, Mr. Smith. Call your parents and tell them that there is very little chance of you ever successfully becoming an attorney. However, I understand there are openings for assistant managers at McDonald's.” This was said in front of approximately ninety people. . . . Certain individuals could not deal with having to stand up in front of people to recite a case, not to mention handle the combative nature of the comments and questions from the professor and fellow students.
Geoff and I look forward to joining others in what should be a great sports law symposium at DePaul University College of Law on Friday, February 12. The title of the symposium is "Sports and the Great Recession." Here are the details:
David Grant of the Christian Science Monitor recently wondered why NCAA student-athletes can receive gifts worth up to $500 if they are able to play in Bowl Games, but during the season those same players are much more restricted in what they can receive because of their student-athlete status.They do so because getting untoward benefits as student athletes can jeopardize their future eligibility to run, block, and tackle and, by extension, their opportunity to reap a bigger future payday in the NFL. (And forget sponsorships. College athletes lose their ability to take the field by entering into corporate pacts.)
But during bowl season, game organizers shower these same athletes with up to $500 in free merchandise that athletes then wear and use on campuses across the country, giving brand names a boost in the process. What happens at a bowl gift party that makes it any different from the other 364 days a year?
"When players come down to these bowl games, you don’t want to just lock ‘em in the hotel room," says Geoffrey Rapp, a law professor at the University of Toledo who contributes to the Sports Law blog. "Part of the fun is going some place warmer, getting to to go Disney land, and if there was a strict ban on any contributions or any value given to players, you’d have to be very vigilant on your players. But that said, iPods and PlayStation 3's and other electronics seems to be a bit inconsistent with the spirit of the NCAA rules."
* * *But the financial-aid restriction is a blanket one, whereas the prohibition on free gets lifted for a glimmering moment during bowl season.
"On one level, it’s good that players are getting something for all they are contributing to the school," says Michael McCann, a law professor at Vermont Law School who studies sports law. "But it invites the question of why this is an exception and where should you draw the line. Should there even be a line?"
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The Federal Communications Commission took a major step to curb the power of cable operators to block sports programming access to rival telephone and satellite operators, a practice that has long irritated sports viewers. This policy, known as the "terrestrial loophole" was permitted until this order. The FCC took the action, according to the Wall Street Journal, after firms like Verizon, Direct TV and Dish Network, complained that the cable operators improperly blocked their broadcasts of local teams they either own outright or have rights to broadcast) which the Commission, in its 4-1 decision, concluded violated anti-discrimination provisions of section 628 of the Communications Act. Section 628 requires cable operators to act in the public interest and engage in "unfair acts" against satellite operators, including discrimination in the prices, terms and sale of cable programming to those operators.
Today was the exchange number day for salary arbitration-eligible players and their teams. As expected, Tim Lincecum asked for a record amount ($13,000,000). The Giants countered with $8,000,000 leaving a midpoint of $10,500,000. As is always the case in the final hours and minutes before the exchange deadline, a significant number of deals were completed. Last Friday, 128 players filed for arbitration. That is the largest number in more than one decade. When the dust settled today, a total of 46 exchanged numbers. I was a bit surprised that so many deals got completed because through Monday evening I had seen modest activity. I will be providing some more information after I have tracked down all the pre-exchange deals.
ESPN's Henry Abbott has a great interview with U.S. Secretary of Education Arne Duncan, who is a critic of the NBA's eligibility restriction, which requires that a player be 19 years old plus one year removed from high school in order to be eligible for the NBA Draft (the rule was negotiated in 2005; previously, players could join the NBA right after finishing high school). The NBA and the Players' Association will be negotiating a new CBA in the near future and the age limit will likely be a source of tension between the two bargaining units.
Several of us will be speaking at the University of Florida Levin College of Law on January 29 at the 2010 UF Sports Law Symposium. The general topic is what to expect in the collective bargaining of new agreements in the NBA, NFL, and Major League Baseball. It should be a great event (and for attorneys near Gainesville, there will be CLE credit). Here's a press release:The keynote speaker for this year’s symposium will be Harvey W. Schiller, Ph.D., who has served as president of the International Baseball Federation since 2007 and is also chairman of the board and CEO of GlobalOptions Group, a multidisciplinary international risk management and business solutions company located in New York. Prior to joining GlobalOptions in 1994, Schiller held posts at Turner Broadcasting System, served as the executive director/secretary general of the United States Olympic Committee and was the commissioner of the Southeastern Conference.
“It’s an honor to be able to address future sports-business leaders in Gainesville,” Schiller said. “We live in very challenging times where the changes in the way we conduct business occurs in minutes. Adapting and understanding those changes is critical to our success as professionals. It is my hope that forums like the one being held at the University of Florida, provide the framework for the growth of the industry and to inspire further discussion and opportunity.”
Closing the day-long symposium will be Donald Fehr who served as the general counsel of the Major League Baseball Players Association beginning in 1977, and as its executive director for 26 years from December, 1983. In his role as executive director, Fehr served as the players’ chief negotiator in collective bargaining with major league owners and was responsible for contract administration, grievance arbitration and pension and health care matters. Fehr will address the role of collective bargaining in professional team sports, and discuss his experiences in his role with the players association.
“Interesting things are on the horizon for the four major professional team sports in North America,” Don Fehr said.
To view the symposium agenda, speaker profiles and designated CLE credits, visit http://www.ufsportslaw.com/symposium.html.
For more information regarding the symposium, contact Darren Heitner at heitner@gmail.com
I have a new SI.com column on Carlos Beltran and whether he needed permission for the Mets for knee surgery and what the Mets can do in response. Here's an excerpt:One recommendation, as provided in an attachment to the agreement, is that players and teams in disagreement turn to a third physician expert. The attachment also states, clearly, that teams should not force a player to have surgery performed by a team doctor, but should instead designate another physician to perform the surgery.
Given the contradictions in accounts between Beltran and the Mets, it is unclear whether either side satisfied their duties. Still, we know that the Mets have known from some time about Beltran's knee trouble and about his physician-patient relationship with Steadman. Beltran, in fact, was evaluated by Steadman last June. Also, following the completion of the 2009 season, Beltran had three MRIs on his right knee, with the third MRI, conducted on Dec. 10, revealing a worsening osteoarthritis in his knee. Presumably Beltran and the Mets, including the team's own doctors, have been in communication about how to treat the condition. It thus seems unlikely that the Mets were completely caught off-guard that Beltran would have knee surgery, or that the surgery would be performed by Steadman.
On the other hand, if the respective doctors for the Mets and Beltran disagreed as to Beltran's treatment, a third physician expert may have been appropriate. It would be notable if the Mets requested that Beltran see a third physician or if they designated another physician to perform the knee surgery, and if Beltran declined to meet with a third physician or the physician designated to perform the surgery.
I have a new SI.com column on the guilty plea by Gilbert Arenas. Here's an excerpt:Clarksburg, Md.: When do you think David Stern will decide what the "indefinite suspension" means? Meaning do you have any idea when he might change it to a certain amount of time and if so, how long? I know you can only speculate.
Michael McCann: I think he'll wait until the sentencing is determined (Arenas is scheduled to be sentenced on March 26). I think the odds are very much against Arenas returning this season, even if the sentence he receives is extremely light. To me, the question is whether the suspension will continue into the 2010-11 season. Stern will likely provide Arenas an opportunity to meet with him in private (similar to that provided by NFL commissioner Roger Godell to Michael Vick) and that meeting would have a major impact on when Arenas returns.
To read the rest, click here. Also on a somewhat related I issue I did an interview with Scott Drake of the Legal Broadcast Network on Jason Williams pleading guilty this week for a fatal shooting that happened back in 2002.
I have a new SI.com column titled "Don't expect Bonds, Clemens to offer their own confessions". Here's an excerpt:If, however, Bonds were to admit to having knowingly used steroids, and to doing so prior to when he testified before the grand jury, he would also admit to having knowingly lied to that grand jury. Given the favorable situation of his trial, Bonds seems unlikely to admit to having committed a crime for which he probably would not otherwise be convicted and which carries with it a possible prison sentence. Therefore, whatever public relations benefit Bonds might obtain by "coming clean" would be outweighed by the legal implications of such an admission.
I have a new SI.com column on Gilbert Arenas being charged with a felony and the potential impact of a plea deal on his NBA career. Here's an excerpt:* * *
For example, the IHSAA relied on Coach Fielstra‘s statements that another basketball coach from a different school told Fielstra that one of Jasmine‘s grandmothers told him (the other coach) that the family was looking for another school for Jasmine because she was not getting the ball enough at Elkhart Memorial.Watson sought and successfully obtained a preliminary injunction allowing her to play basketball at her new school, with the court finding the IHSAA to have acted in an arbitrary and capricious manner. The Appellate court, in the linked decision, affirmed that injunction. The court includes an interesting discussion of the mootness issue present in so many eligibility-centered lawsuits. By the time it rendered its decision this fall, Jasmine had graduated from high school (and has begun what looks to be a promising career at the University of Massachusetts). The court noted that the IHSAA had filed a counter-claim for attorney fees against Watson, so success for the IHSAA on appeal could have significant monetary implications should the Association have the gall to try to collect its fees from a cash-strapped single mother. The court also opined that transfers for financial pressures were likely to be a recurring problem, and that high school athletics are a matter of "great public interest."
I have a new SI.com column that looks at the fallout of Mark McGwire admitting that he used steroids. Here's an excerpt.3) What would have happened had McGwire talked about the past?
If McGwire had denied using steroids -- that is, lie -- he would have set himself up for perjury charges. But keep in mind, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. That means that McGwire or any other witness from the March 17, 2005 hearing would need to face perjury charges by March 17, 2010. It is unclear whether the government would have had sufficient physical evidence to investigate and seek a grand jury indictment against McGwire; there does not appear to be a Brian McNamee-like figure from McGwire's past.
Alternatively, if McGwire had admitted that he used steroids -- that is, told the truth -- he would have been subject to investigation by federal authorities as to which steroids he purchased, when and how he purchased them, from whom he purchased them and similarly probing questions. In theory, McGwire could have faced criminal charges under the Anabolic Steroid Control Act. While some might point out that no player who admitted to using steroids has been prosecuted for purchasing or using steroids, keep in mind that those players -- including Alex Rodriguez and Andy Pettitte -- had not yet admitted to using steroids in 2005; McGwire and his attorneys did not have the benefit of observing those players' legal experiences.
McGwire's admissions of steroids and subsequent cooperation with federal authorities could have impacted other players and the steroids scandal in general. For instance, it may have aided federal investigations into other players alleged to have used steroids, including Barry Bonds and Roger Clemens. It may have also helped the Mitchell Commission in its internal investigation. On the other hand, by admitting that he used steroids and subjecting himself to potential prosecution absent cooperation with authorities, McGwire might have put himself in the uncomfortable and unenviable position of implicating friends and former teammates.
This case is a lottery ticket for the NFL. If they win, it could be a significant victory....If the NFL loses, nothing really changes. The issue before the Supreme Court is not whether the NFL's exclusive licensing arrangement is legal under the antitrust laws. The issue is whether the licensing arrangement should even be subject to scrutiny under the antitrust laws. If the NFL wins, they escape Section 1 scrutiny. If the NFL loses, their arrangement will then be analyzed under the rule of reason, where a court will weigh the pro-competitive benefits of the agreement versus its anticompetitive effects.
There is no reason to believe that the Supreme Court's rejection of the single entity argument makes it any more (or less) likely that American Needle would prevail in the underlying antitrust case (or that a suit against the NFL's exclusive deal with EA would be successful). Rather, it only subjects the NFL to the same antitrust scrutiny they have been subjected to for the last 50 years. American Needle could win the underlying case, but only if it could prove that the anticompetitive effects of the NFL's exclusive apparel licensing deal outweighed its pro-competitive benefits.
Others aren’t as sure that the four decidedly conservative judges are certain to side with the NFL. Michael McCann, a Vermont law School sports law professor who recently analyzed the case in the Yale Law Journal, allows that a conservative viewpoint might lead those justices to favor competition between businesses and discourage collaboration, aligning them with the viewpoint of American Needle.2) Drew Brees of the New Orleans Saints (and also of the NFLPA's executive committee) has a thoughtful op-ed in the Washington Post on the case. Here's an excerpt:
Still, McCann and Gary Roberts agree that the NFL likely views this court as wary of constraining a business on antitrust grounds when the damage to consumers isn’t blatant, making this an opportune time for the league to take its shot.
“My sense is that they view this particular court and this particular case as providing a very good argument for single entity when compared to other cases,” McCann said, “and other potential compositions on the court.
[I]f the Supreme Court agrees with the NFL's argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.3) For a related piece about the NFL's potential problems in securing a new collective bargaining agreement, see Jeff Levine's detailed analysis on The Biz of Football. Here's an excerpt:
What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don't reward them when they're promoted and set higher ticket prices (including preventing teams from competing through ticket discounts).
For other Sports Law Blog coverage on American Needle v. NFL, click here.The biggest signs that point to a lockout are: (1) the hiring of Bob Batterman, (2) the fact that the NFL is accumulating a war chest in preparation for a lockout and most significantly . . .
It is certainly true that the NFLPA should be alarmed by the NFL’s hiring of Batterman as outside counsel. As Smith alluded to in his email, Batterman was instrumental in designing and implementing the NHL’s lockout strategy. It seems the NFL is now duplicating this strategy as it waits for the current CBA to expire before it will engage the union in any real discussions.
The NFL can afford to wait for the expiration of the CBA partially because of the significant contracts it signed with various sponsors and partners. For instance, the NFL recently signed a deal with DirecTV that pays the league $1 Billion regardless of whether football is played in 2011. This type of deal provides the NFL with plenty of leverage in dealing with the union.
You've written about entities within minor league baseball lobbying Congress during the passage of this act. Can you talk about the effects of these efforts?
Minor League Baseball was quite concerned about the possibility of any changes to the basic “farm system” relationship of minor league teams to major league teams. In particular, major league teams cover the salaries of minor league players, and this is a critical feature to the existing business model of minor league teams. When the legislation was first considered in Congress, Minor League Baseball made sure that it approached the many Congressmen and Senators with minor league franchises within their Congressional districts or states to make sure that any possibility of a lawsuit by a minor league player could not happen by changing the status of major league players. Most courts that have considered baseball’s historic antitrust exemption have held that it covers the entire business of baseball. The legislation basically left a slight bit of ambiguity by stating that baseball players are “subject to the antitrust laws to the same extent such conduct . . . would be subject to the antitrust laws if engaged in by persons in any other professional sports business affecting interstate commerce.”
To read the rest, click here.
To read the rest, click here. This Q/A was further discussed by Martha Neil of the ABA Journal and I spoke with Bill Myers of the Washington Examiner about Arenas, as well. Largely unrelated to Arenas, but wanted to mention -- Dan Fitzgerald of Connecticut Sports Law has a terrific top list of sports law stories from 2009, with the number one being college coaches contracts and the law. Hope you have a chance to check out the links and discussion.Washington, D.C.: What kind of leverage does this give the team, if it's looking for a way to dump Gilbert's contract? Does he have to be convicted of a felony before any morals clause kicks in?
Michael McCann: This is the real interesting issue, in my view. Clause 16 of the Uniform Player Contract empowers teams to void contracts and is vaguely worded to include not only criminal behavior, but behavior that is immoral. It has been seldom used, however (a recent example was the Celtics using it to terminate Vin Baker's contract, and that wasn't entirely successful, since it lead to a financial settlement with Baker). Hypothetically, if the Wizards terminate Arenas' contract through Clause 16, the Players Association will vehemently object and file a grievance, which will be heard by an independent arbitrator. Latrell Sprewell (with the Players' Association help) was able to get his contract with the Warriors reinstated, even though he choked a coach, which is arguably worse than what Arenas did. Bottom line: if Arenas contract can be voided, think about what teams will do with other controversial players who have long-term, lucrative contracts.
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Hypothetically: If you were Gilbert's lawyer, what would your next move be?
Michael McCann: I would tell him to say absolutely nothing, to turn off Twitter, to get off Facebook, to stop having any public presence. And I'm sure his lawyer told him all of this, but the lawyer can't control the client, especially a client who is as gregarious and idiosyncratic as Arenas. Right now, Arenas has to be thinking about appearing before a court which could sentence to him to prison. Or before a commissioner who could suspend him for months. Or before a Wizards team executive who could try to void a contract that will pay him close to $100 million in its remaining term. It's time to get serious and to get off Twitter.
A broad ruling could insulate professional sports leagues from antitrust claims over video-game licenses, television rights, franchise relocation and even player salaries. Only Major League Baseball is exempt from antitrust laws now.
The NFL dispute “could become the most important sports law case in U.S. history,” said Michael McCann, a professor at Vermont Law School in South Royalton and the author of a law review article on the case.
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The NFL took the unusual step of joining American Needle in requesting Supreme Court review. The league is seeking a broader legal shield, one that might even preclude antitrust accusations that teams conspired to hold down player salaries. The league’s current labor agreement expires after next season.
That possibility prompted the players’ unions for the NFL and three other leagues to urge the Supreme Court to rule for American Needle, or at least limit use of the “single entity” defense. The unions’ lawyer, Jeffrey Kessler, called the NFL’s arguments a “Trojan horse” aimed at securing a sweeping antitrust exemption.
“It’s hoping for an even broader ruling that would give it immunity in player markets, in broadcast markets and in stadium markets, far beyond the ruling of the 7th Circuit,” Kessler said.
That wouldn’t be so bad, said Gary Roberts, dean of the Indiana University School of Law in Indianapolis and co-author of a sports law casebook. He said that the NFL is essentially “one business” and that players shouldn’t have more legal rights than the unionized workforce of any other employer.
“Why should the highest paid unionized workers have more weapons at their disposal than the guys working in auto factories or coal mines?” Roberts said.
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To read the rest of the piece, click here. To read other Sports Law Blog coverage on American Needle, click here.
Stohr, incidentally, is an attorney and author of a terrific and even-handed book on affirmative action--specifically the litigation concerning the University of Michigan's policies--titled A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge (a preview of which can be read on Google Books). If you're interested in that topic, I'd strongly recommend picking up Stohr's book.
I have a new SI.com column that looks at the potential punishments Gilbert Arena could face at the hands of the legal system, the NBA, and the Washington Wizards. The piece also discusses implications for NBA players who carry guns. Here's an excerpt:Hope you get to read the rest of the column.* * *The Wizards could also attempt to sanction Arenas. The franchise could do so through a suspension or, more controversially, through a termination of Arenas' lucrative contract.
Although I have not reviewed Arenas' contract, Clause 16 of the NBA's Uniform Player Contract cannot be modified for individual player contracts and describes the circumstances in which a team can terminate a deal. One such circumstance occurs if a player "at any time, fails, refuses, or neglects to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship ..."
To be sure, the players' association would vehemently object to the Wizards' using Clause 16 to escape financial obligations, with the union seeking to protect Arenas and other controversial players who could be subject to contractual termination by their teams. Indeed, the very concept of guaranteed NBA contracts could be jeopardized by the termination of Arenas' deal.
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In the 2002 case Fraser v. Major League Soccer, the First Circuit Court of Appeals upheld a jury's finding that Major League Soccer clubs compete in an international market for men's professional soccer labor and thus lack enough "market power" to collude illegally under Section 1 of the Sherman Act.
