The 4th Annual Tulane Law School National Baseball Arbitration Competition

I am pleased to announce that the 4th Annual Tulane Law School National Baseball Arbitration Competition will take place in New Orleans on February 10-11, 2011. The event is a great opportunity for students interested in sports law to compete in a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball.

In addition to the arbitration competition, this year’s event will feature a mini-symposium where a number of our “celebrity” guest arbitrators will discuss issues impacting Major League Baseball and the sports industry. The lineup of panelists/arbitrators includes (with more to come):

• Josh Byrnes, Former General Manager of the Arizona Diamondbacks.

• Carter DeLorme, Partner at Jones Day in Washington D.C., performs salary arbitration work for the Boston Red Sox and Texas Rangers.

• Jon Fetterolf, Partner at Williams & Connolly in Washington D.C. and baseball agent.

• Clark Griffith, Attorney and AAA Arbitrator, Former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties

• Michael Weiner, Executive Director of the Major League Baseball Players Association.

The competition will be capped at 24 teams, so students interested in competing should submit their registration form and entry fee as soon as possible.For more information, official rules, and registration materials, please visit the competition’s website.

See you in New Orleans!

Adding wildcards to make divisions meaningful?

It turns out I have even more company in my wildcard-makes-division-races meaningful crusade: Jayson Stark (and apparently Elias and SI's Tom Verducci). Stark, and everyone else, now recognize that when the two best teams play in the same division (Yanks-Rays this year) and both are guaranteed to make the play-offs, the incentive to win the division all but disappears, because the single benefit of home-field advantage is minimally important (Stark points out that the team without home-field advantage wins 50 % of post-season series).

The solution, according to Stark, Verducci, et al., is not to eliminate the wild card, but to add a second wild-card in each league. Now the two wild-cards play some type of play-off (he debates whether it should be a one-game winner-take-all or best-of-three and how it should be structured [Update: Tom Verducci insists it has to be a one-game playoff, not a series]) for the right to move on and play, presumably, the division winner with the best record. Now there is a genuine incentive to win the division--avoiding having to play anywhere from one to three additional games, perhaps without off-days and perhaps without a break between the wild-card series and the Division Series. And, according to Stark, people close to Bud Selig reportedly say he likes the idea.

I am not quite convinced, because it still devalues the division in non-close races. If a second-place team falls far enough behind the first-place team in its division, it turns its attention to teams in other divisions and just has to focus on staying ahead of the non-first-place teams in those divisions. So the "race" is between # 2 in the East and # 2 in the Central--although those teams will not play one another regularly in September, since the schedule is weighted towards intra-division games late in the season, for obvious reasons. Still, anything that gives a real incentive to finish first is a vast improvement.

On rewriting history

Phil Taylor has a piece in this week's Sports Illustrated (I cannot find it on-line) criticizing the NCAA's recent over-reliance on stripping teams and players of wins, records, and awards as punishment for rules violations. He derides the punishment as meaningless and ultimately ineffective symbolism. It is incoherent, because it asks us to disregard our own memories and experiences. We remember Kentucky Memphis losing in overtime in the NCAA Finals in 2008 or Massachusetts making the Final Four in 1996 or Reggie Bush running wild and winning the Heisman in 2005. Yet the NCAA tells us this never happened, even though we know it did. Actually, Taylor points out something that makes this a total farce: The NCAA cannot or will not enforce this penalty beyond its own record books. So while Massachusetts officially did not make the Final Four in 1996, a Final Four banner hangs from the rafters at the UMass arena (the NCAA asked the school to take it down and the school refused). So UMass can, in its physical space, present its own official history, NCAA be damned.


Of course, the problem with this punishment is not that the written record conflicts with our memories. The problem is that the written record becomes our memories over time. As I argued previously, this is an attempt to create an "official" but not "true" or "accurate" historical record, knowing that when collective memories fade (or people die), the official record becomes the true record. One hundred years from now, everyone will "know" that Kentucky Memphis did not play in the 2008 Finals--because that is what the NCAA says. This smacks too much of what totalitarian societies do--creating an "official," government-approved history by formally altering the documentary record and expecting everyone to fall in line with that record.

Yes, this is just sports. But as a matter of intellectual honesty and truth over the course of time, is the NCAA telling us that Kentucky Memphis did not play in the finals in 2008 or that USC did not win all those games in 2005 any different than the Soviet Union telling us that Nikolai Yezhov never stood right next to Stalin in a group picture on the Moscow Canal?

Mascot Violence in Ohio: Vicarious Liability?

On Saturday, the nation's #2 ranked team, Ohio State University, and the non-ranked Ohio University played one another in a clear mismatch. Not surprisingly, Ohio State pummeled Ohio University, at least during the game (Ohio State won 43-7).

Ohio University, however, got some hits in before the game. That was when Ohio University's mascot, Bobcat, twice attacked Ohio State's University, Brutus Buckeye, including during a team prayer. Here's the video:



Ohio University has apologized to Ohio State for the incident and also fired the student who was dressed as Bobcat. The student has even been "banned from any further affiliation with Ohio University athletics."

Fair enough; it doesn't appear that anyone was hurt and I'm not sure what else Ohio University could do at this point.

But let's look backward and wonder what could have happened had the student playing Brutus Buckeye been hurt. While he was presumably protected somewhat by his mascot costume, I'm sure he could have been hurt, especially when sucker punched by the other mascot.

If the student was injured, it would seem that Ohio University could have been sued under a vicarious liability theory. After-all, why did Ohio University pick the attacking student to play the mascot? What kind of selection process was used -- were there tryouts, were they other candidates, were any qualifications considered? Also, has this particular student ever shown violent or reckless tendencies? Are there NCAA or individual conference rules or suggestions on selection of mascots, or is that process left entirely to schools? Should it be regulated? Should it be professionalized, like mascots are for pro teams, which hire persons to play mascots?

On the other hand, does a student playing a mascot--like the student dressed as Brutus Buckeye--assume certain risks of injury? But even if he or she does assume some risks, would getting attacked by a fellow mascot really be one of them?

One last point: where was stadium security? Should they have intervened?

Update: in the comments section, Tim and Nathaniel--both, admittedly, grads of Ohio University--point out that mascot fights are not exceptionally unusual so perhaps an assumption of risk defense on the part of their alma mater would have some merit.

Update 2: While none of these are necessarily on-point, we've blogged about mascot and tort issues before. For example, in December 2006, Rick wrote about a lawsuit filed against the New Orleans Saints because its mascot was allegedly negligent in crashing a golf cart into a fourth-string quarterback. In April 2008, Geoff wrote about the Chicago Bulls' mascot, Benny, possibly being negligent in how it high-fived fans. Last but not least (or maybe least), in March 2010, I wrote about the tort implications of flying hotdogs that originate with mascots.

New Sports Illustrated Column on Floyd Mayweather, Jr. Domestic Violence Charges

I have a new SI.com column on Floyd Mayweather Jr.--who earned $60 million last year in boxing winnings and endorsements--being charged with beating up his ex-girlfriend and threatening to beat up his kids if they called the police. Here are some excerpts:

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According to those authorities, Mayweather did much more than steal a phone during his argument with Harris. He also allegedly pulled her hair, threw her to the floor and threatened to kill her. Just as troubling, prosecutors claim that Mayweather warned his children, Koraun and Zion, that he would beat them if they called the police.

* * *

Mayweather, who has a history of legal woes, would be classified as a repeat offender. In 2002, he pleaded guilty to two domestic violence counts and one battery count. Those counts stemmed from multiple incidents evidencing Mayweather's questionable judgment and violent acts. The primary incident involved Mayweather physically assaulting Melissa Brim, who is the mother of Mayweather's daughter, Ayanna. While Mayweather dodged prison time on that occasion, his guilty plea can certainly be used against him for purposes of sentencing. The fact that Mayweather's alleged offenses include crimes against his children, could also work against him. Acts deemed particularly egregious may be considered aggravating circumstances that compel an elongated sentence.

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To read the rest, click here

What Impact will Ed O'Bannon and Sam Keller claims have on NCAA?

Paul Ellias of the Associated Press tackles that question in a new article. He interviews Rick and me for the piece. Here are some excerpts:

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A judge earlier this year refused the NCAA's request to toss out the eight lawsuits filed across the country by former student-athletes. They are now consolidated into a single federal action in San Francisco. The former collegiate athletes accuse the NCAA of antitrust violations, alleging they are prevented from marketing their images because the NCAA locked up their commercial rights forever during their college days.

* * *

U.S. District Court Judge Claudia Wilken said the lawsuits, at first glance, appeared to show the NCAA's "conduct constitutes an unreasonable restraint of trade."

Legal analysts said that ruling will compel the NCAA to turn over many of its business secrets to the players' lawyers. No previous lawsuit has advanced to this stage, said Vermont Law School professor Michael McCann, who specializes in sports law. He said even if the players ultimately lose their cases the documents could add further fuel to the debate over compensating student athletes.

"When we see what kind of money is being tossed around and how much money is made off players," McCann said, "it could invigorate this debate. It will hit at the core issues of amateurism."

* * *

All the lawsuits are seeking class action status to represent untold housands of current and former athletes. Antitrust verdicts are tripled.

"If they are successful, it could mean a lot economically in terms of damages," said Rick Karcher, who directs the Center for Law and Sports at Florida Coastal School of Law.

* * *

To read the rest, click here. To read more on O'Bannon's claims, click here; to read more on Keller's claims, click here.

I have company in disliking the wildcard

In both 2009 and 2007, I criticized the baseball wild card, arguing that it eliminates close races among the top teams in the league, since both will end up in the post-season, in favor of close races among a lot of lesser teams. Turns out I am not alone in this view. Tom Scocca of Slate makes the same argument, pointing out that the intense back-and-forth between the Yankees and Rays (Rays currently 1/2-game up, following a recent Yankees slide) is nearly meaningless, since the loser makes the play-offs as the wild card.

Scocca does something cute here: He shows the would-have-been standings in the pre-1994 two-division set-up. The result: The Yankees and Rays in the AL East fighting for one play-off spot and separated by 1/2-game with 17 left to play and five teams in the NL West fighting for one spot and separated by three games. And both races would be truly do-or-die: Only one team in each division can make the post-season.

Scocca ultimately reaches the same conclusion as me: More teams (and their fans) get into the post-season, but at the loss of truly winner-take-all competition.

Marquette University Law School - Sports Law Conference

Marquette University Law School is hosting its annual conference on October 22, 2010. The title of the event is "The Increasing Regulation of Sports in a Declining Economy." I have attended in the past and highly recommend it. CLE credits are available. The conference website can be found here. Conference panelists include the following:

• Matt Banker (L'01), Assistant Commissioner for Institutional Services, Ohio Valley Conference, Nashville, TN


• Mary K. Braza, Partner and Chair, Sports Industry Team, Foley & Lardner LLP, Milwaukee, WI


• Steve Cottingham, Director of Athletics, Marquette University, Milwaukee, WI


• Rodney Fort, Professor, Sport Management and Associate Dean for Graduate and Faculty Affairs, School of Kinesiology, University of Michigan, Ann Arbor, MI
• Jeff Gewirtz, Senior Vice President & General Counsel, NETS BASKETBALL/Brooklyn Sports & Entertainment, East Rutherford, NJ


• Martin Greenberg (L'71), Managing Member, Law Office of Martin J. Greenberg, LLC, and Member, Southeast Wisconsin Professional Baseball Park District, Milwaukee, WI


• Greg Heller (L'96), Senior Vice President & General Counsel, Atlanta Braves, Atlanta, GA (Class of 1996)


• Nancy Hogshead-Makar, Professor of Law, Florida Coastal School of Law, and Senior Director of Advocacy, Women's Sports Foundation, Jacksonville, FL


• Robert Kaler, Chief Operating Officer & General Counsel, United States Soccer Federation Foundation Inc., Washington, D.C.


• Robert H. Lattinville, Partner, Stinson Morrison Hecker LLP, Saint Louis, MO


• Ilhyung Lee, Edward W. Hinton Professor of Law & Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri, Columbia, MO


• Jim McKeown, Antitrust Practice Chair, Foley & Lardner LLP, Milwaukee, WI


• Richard H. McLaren, Professor of Law, University of Western Ontario, London, Ontario, Canada, Counsel to McKenzie Lake Lawyers LLP, and Member, Court of Arbitration for Sport, Lausanne, Switzerland


• William Miller (L'96), Assistant Professor, Health, Exercise Science & Sport Management, University of Wisconsin - Parkside, Kenosha, WI


• Matthew Mitten, Professor of Law and Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers, Marquette University Law School, and Member, Court of Arbitration for Sport, Lausanne, Switzerland


• Matt Parlow, Associate Dean for Academic Affairs and Associate Professor, Marquette University Law School, Milwaukee, WI


• Jill Pilgrim, Principal & Business Counsel, Precise Advisory Group; Chairperson-Arbitrator, Financial Industry Regulatory Authority; President, The Center for The Protection of Athletes Rights, Inc.; Principal, Pilgrim & Associates Law Office (New York, NY and Miami, FL)


• Marti Wronski, Vice President and General Counsel, Milwaukee Brewers Baseball Club, Milwaukee, WI

WAC v. Mountain West Conference

ESPN reported yesterday that the Western Athletic Conference has initiated a lawsuit against the Mountain West Conference, California State University-Fresno, and the University of Nevada. The lawsuit relates to this summer's announcement that the two schools were leaving the WAC to join the Mountain West. Fresno State and Nevada both seek to enter the Mountain West starting with the 2011-12 school year. Meanwhile, the WAC contends that the schools are contractually obligated to remain in their current conference until the start of the 2012-13 year.

Specifically, under the WAC's bylaws, schools are supposed to notify the conference by July 1st if they intend to depart the conference the following summer. Both Fresno State and Nevada announced their intended departure on August 18th, but have indicated they would nevertheless like to join their new conference beginning in July 2011. The WAC contends that it would be irreparably harmed if the schools were permitted to leave before July 2012. As stated by WAC Commission Karl Benson:

"We’ve declared pretty consistently that the football schedule for 2011 would be drastically challenging for the six remaining members if they lost two footballs games in the 2011 season less than a year away," Benson said Tuesday. "We also have obligations and contracts with our bowl partners that would be damaged without Fresno State and Nevada in the WAC in 2011. A contract with our television partner that would be affected. WAC basketball tournament implications, BCS implications, there’s a myriad of reasons why Fresno State and Nevada need to fulfill their obligations."

Indeed, if Fresno State and Nevada are permitted to leave the conference in 2011, the remaining members of the WAC will likely have a difficult time replacing games against the two schools on their 2011 football schedules, given the current trend of scheduling non-conference college football games years in advance (as discussed in my forthcoming law review article).

The WAC filed the suit in Colorado state court, and ultimately asks that the court issue an injunction requiring the two schools to remain in the WAC through the 2011-12 school year. A copy of the complaint is available here.

Boston College Law Review Symposium on NCAA

I'm thrilled to be a panelist at Boston College Law Review's forthcoming symposium titled, "Legal Perspectives on the NCAA." Here is information on the symposium, which will be held on Friday, October 15:

Legal Perspectives on the NCAA
Symposium, October 15, 2010

One hundred years ago, in 1910, the Intercollegiate Athletic Association of the United States was rechristened as the National Collegiate Athletic Association, or NCAA as it is known today. Since then, the scope and popularity of college sports has grown dramatically. The NCAA and its member institutions hold competitions involving 400,000 student athletes in 23 sports. These events have in many cases become big business. Some universities reap over $100,000,000 in gross revenue from their athletic programs. The growth of NCAA sponsored sports has created tension between important values like amateurism, academic standards, student rights, and equal access on the one hand and practical realities like competitive pressure and fiscal imperatives on the other. This tension has not always been easy to resolve. Not surprisingly, the NCAA, its institutions, and student athletes have sometimes turned to the legal system to resolve conflicts. On October 15, 2010, Boston College Law School and the Boston College Law Review will hold an all-day symposium that examines some of the legal issues raised by the NCAA's growth. The symposium will feature four panels during which distinguished law faculty will present academic papers that will be published by the Boston College Law Review. A commentator will then give us his or her thoughts about the paper with an eye to fostering an open give and take about the ideas presented. The symposium will also feature a special lunchtime program during which William Hancock, executive director of the BCS, and Matthew Sanderson, executive director of PlayoffPac, will discuss postseason college football, the BCS, and the National Championship. Jeremy Schaap of ESPN will moderate.		PROGRAM Lunchtime Program: Postseason College Football, the BCS, and the National Championship Roy Kramer, Former Commissioner of the SEC and Founder of the BCS Matthew Sanderson, Executive Director, PlayoffPAC Jeremy Schaap, ESPN (Moderator) Panel I: NCAA and Gender Nancy Hogshead-Makar, Professor, Florida Coastal Law School Erin Buzuvis, Professor, Western New England Law School Deborah Corum, Associate Commissioner, SEC (Commentator) Panel II: NCAA and Students Maureen Weston, Professor, Pepperdine Law School Alfred Yen, Professor, Boston College Law School Petrina Long, Senior Associate Athletic Director, UCLA (Commentator) Andy Staples, Sports Illustrated (Discussant) (Invited) Panel III: NCAA as a Commercial Enterprise Michael McCann, Professor, Vermont Law School Joseph Liu, Professor, Boston College Law School Jon Wertheim, Senior Writer, Sports Illustrated (Commentator) Panel IV: The NCAA and Constitutional Law Vikram Amar, Professor, U.C. Davis School of Law Richard Albert, Professor, Boston College Law School Gordon Hylton, Professor, Marquette Law School (Commentator)

Floyd Landis as Whistleblower?

As Mike noted in his SI column last spring, the Landis-Armstrong doping drama has some interesting legal consequences. Mike drew attention to "...the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement."

Last week, news leaked that Floyd Landis has filed a federal False Claims Act lawsuit. See the AP story, yahoo sports, and the Wall Street Journal.

Under the FCA, whistleblowers can bring "qui tam" actions in the name of the United States to recover monies paid out by the federal government based on false claims. Known as "Lincoln's Law," because of its origins in fraudulent defense contracting during the Civil War, the FCA has been a powerful tool for uncovering fraud and rewarding whistleblowers (known as "relators") for bringing original information to the government's attention. I argued for extension of the FCA model to financial fraud whistleblowers in a 2007 article, "Beyond Protection."

Under the statue, plaintiff whistleblowers can recover a portion -- up to 30% -- of the government's losses due to false claims. The statute also requires that the complaint be filed under seal with the court and delivered to the DOJ. The DOJ's Civil Division lawyers review the allegations and decide whether or not to pursue the case themselves; if they decline to intervene, the whistleblower can still bring the case on behalf of the government. But the fact that the complaint is under seal means that the defendant here, Lance Armstrong, the public and the media have yet to have access to the details of the allegations.

So at this point any analysis of the strength of the complaint is mere speculation (or character attack). Still, it seems like Landis will face some significant obstacles. For one, he will need to establish a false claim to the government -- that Armstrong made some false statement in a request for money. Here, presumably, we're talking about sponsorship money paid out to Armstrong's team by the US Postal Service. Landis will need to prove that, prior to getting the money, Armstrong made false statements regarding his alleged doping. If he made no such statements, or if the USPS funds weren't actually conditioned on any promise of being dope-free, then it would be hard to establish a false claim for payment.

More fundamentally, FCA relators only get paid if they are the "original source" of information not yet in the public domain. This may be the bigger challenge for Landis. What original information about Armstrong has he offered? Was the information he offered already in the hands of government investigators, or already in the public domain, before he supposedly brought it to the government's attention?

Will Donald Fehr take over the NHLPA?

It's been rumored for a few weeks that former MLBPA executive director Donald Fehr, 62, is set to become the next executive director of the NHLPA. The latest is that he will indeed become director. Over on his blog, baseball attorney Jay Reisinger wonders why is it taking so long:

* * *

The NHLPA has been a rudderless ship since Bob Goodenow resigned in 2005, and in my opinion, the only person that can right the NHLPA is Don Fehr.

Fehr was the executive director of the Major League Baseball Players Association for 27 years before he stepped down in 2009. Fehr was instrumental in making the MLBPA the most powerful union in sports. He guided the players through the collusion grievances of the late 1980’s (which resulted in an award of $280M to players) and the 1994-1995 strike. He also guided the players through CBA negotiations in 2002 and 2006, the first negotiations since 1970 that were achieved without a work stoppage.

More importantly, however, he built a union that was in touch with its members. He brought cohesion to the membership, and this cohesion enabled the MLBPA’s to successfully navigate their labor negotiations with MLB. Without the support of its members (support which Fehr and his protégées fostered), the MLBPA would not have fared as well as it did.

Fehr left the MLBPA in more than capable hands. This exemplifies another one of his skills; the ability to find, train and keep talented staff members that share his vision . . . the NHLPA has never had this kind of continuity. Its membership has never been as cohesive as the MLBPA’s, and its staff has never been as stable as the MLBPA’s. The current CBA, which is almost unconscionable from the players’ perspective, is a product of the NHLPA’s sustained instability, which has been exacerbated by the revolving door at the NHLPA’s offices.

It should be clear to the membership of the NHLPA that Fehr is not in this for the money. Fehr never took a salary of more than $1M during his tenure at the MLBPA, while other union leaders such as Billy Hunter (NBAPA) and Gene Upshaw (NFLPA), and even Ted Saskin, were making in excess of $2M. Fehr certainly earned a salary equal to or in excess of his peers, but he never took it. It should also be clear to the membership of the NHLPA that Fehr’s success was earned, not serendipitous, which means it can be recreated.

Personally, I do not think that Fehr’s request for $3M is representative of any financial desire or vanity. He has made his money. Rather, I think he believes that it is the only mechanism to ensure continuity at the NHLPA. With a higher salary (which is contractually guaranteed), the less likely he will be subject to the midnight coups that have felled some of his predecessors. . . .

To read the rest of this insightful piece, click here.

Sports Justice by Roger Abrams

Our friend Roger Abrams, a professor and former dean of Northeastern University School of Law, has published a terrific book sure to be of interest to many readers on this blog: Sports Justice: the Law and the Business of Sports (University of New England Press, $35). Here's information on the book and endorsements from Harvard Business School Professor Stephen Greyser and me:

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An accessible guide to sports law highlighting landmark cases and personalities

Americans, brought up playing or watching sports, absorb the notions of fair play not simply as integral themes of sportsmanship on the field, but also as values they try to carry into their everyday lives. In this accessible and fascinating look at law and sports, Roger I. Abrams shines the lights on the uniquely complex and important legal issues that face both amateur and professional athletes. From cases involving Title IX, transgendered athletes, rights of the disabled, violence on the playing field, individual and franchise free-agency, amateurism and college sports, and responsibility of leagues for the safety and lifelong health of injured players, Abrams weaves a profoundly moving and immediately relevant story of ever broadening access to, and expanding rights within, the field of sports.

Abrams illuminates these legal cases through compelling storytelling and personal explorations of those involved, such as Jeremy Bloom, the world champion mogul skier who was barred from playing college football because he had modeled clothes for Tommy Hilfiger, and Casey Martin, Renee Richards, and the young gymnasts from Brown University who sought access to the sports they loved, but found that their quest to achieve justice required judicial intervention. There is also one non-athlete: Al Davis, the renegade owner of the Oakland–Los Angeles–Oakland Raiders, who beat the National Football League cartel using the antitrust laws in his effort to gain the respect he was always denied.

Written for sports fans and legal scholars alike, this is an engrossing and surprising story of people battling for their careers and lives, and in the process changing the very nature of sports and society.

Endorsements:

“In Sports Justice, Roger Abrams offers a compelling and dynamic analysis of major sports law controversies over the last century. Abrams reveals how these controversies underscore broader conceptions of justice and how those conceptions, like sports, evolve over time. Through an interdisciplinary approach, Sports Justice offers readers invaluable insight into the relationship between sports disputes and fundamental notions of fairness. Sports, as Abrams convincingly details, reflect as much about social attitudes as they do about the games that are played.”—Michael McCann, professor, Vermont Law School; legal analyst and SI.com columnist, Sports Illustrated

“Both students and practitioners in the legal and business areas of sports can enjoy and learn from Sports Justice. Deeply grounded in law and relevant to the business of sports, it combines insights and information about issues across the realm of sports—from gender equality in sports competition to franchise relocation to player free agency—that will interest those who manage, participate in, and follow sports.”—Professor Stephen A. Greyser, Harvard Business School, creator of Harvard’s Business of Sports course

For more information on Sports Justice, click here.

The NBA and Weight Clauses: Derrick Caracter joins Glen "Big Baby" Davis as Weighted Players

Last year I wrote about Glen "Big Baby" Davis's weight clause with the Boston Celtics. Davis, who is in the middle of a 2-year, guaranteed $5 million contract, can earn an additional $500,000 each year if he avoids exceeding a certain weight (he earned it in his first season).

The Lakers are now using the same device with rookie Derrick Caracter, a power forward/center who was the Lakers second round pick (#58 overall) in the 2010 Draft and whose commitment to conditioning has been questioned in the past:

The Lakers signed rookie Derrick Caracter to a $473,000 contract for the 2010-11 season that will become fully guaranteed if he weighs 275 pounds or less on Sept. 10.

Currently, Caracter is only guaranteed $250,000.

3 things about Caracter's weight clause stand out to me:

1) The high value of Caracter's weight clause relative to the guaranteed portion of his contract: Caracter can nearly double his salary if he avoids weighing too much. Talk about an incentive to stay in shape! Think about your income and the opportunity to nearly double it if you merely stay in shape. I doubt our country would have the obesity epidemic it currently suffers from if weight had such a direct impact on our earnings.

2) Unlike with Davis, whose contract is worth between $5 and $6 million depending on his weight, Caracter will not become a millionaire through his deal. To be sure, $250,000 is great money for 98% or 99% of the U.S. population--according to the 2005 census, only 1.5% of American households earn $250,000 or more per year--but he's far from being considered a "rich" pro athlete. I think it's also safe to assume that as a player who will have to fight to keep an NBA roster spot, his future income as a professional basketball player is uncertain and his endorsement potential is pretty low, if not 0, at this point. So the difference in Caracter earning $250,000 and $473,000 this year may be more meaningful for his life than the life difference for Davis--who is poised to have a fairly long NBA career--in earning $5 million, $5.5 million, or $6 million in 2009-10 and 2010-11.

3) Is weight an accurate measure for determining whether an NBA player is in good shape, when pro athletes with a lot of muscle may technically be "overweight"? As I note in my Wisconsin Law Review article on nutritional labeling, 43 out of the 50 baseball Red Sox and Cardinals players who played in the 2004 World Series were technically overweight. Some advocate using Body Mass Index (BMI) instead of weight, as it considers body fat. But NBA teams apparently view weight as an adequate measure.

Update: my thanks to Henry Abbott of ESPN and Mark Medina of the Los Angeles Times for discussing this post.

Update 2: An agent emails me some interesting thoughts that tie in the role of collective bargaining:

Setting aside the initial issue of whether an all-or-nothing weight clause is even fair, I agree that the use of weight as the deciding factor is less than ideal. What I find interesting is that BMI is probably not any better -- especially in the NBA, where players are far taller than average. Apparently the taller you are, the less accurate BMI becomes:

"the standard Body Mass Index (BMI) is inherently flawed because it assumes that a body's mass increases as the square of the height. Generally mass increases with the cube of the linear dimensions, so a formula using the square will skew to higher BMI's for tall people."

I'm a lawyer, not a scientist, so I can't say how true that is, but it highlights one of the challenges I've found with drafting player contracts, even in this sabermetric era: flawed metrics are often the only ones that can be included in a contract. More accurate measures tend to resemble a pay-for-play situation that neither side has an interest in promoting, thanks to the incentive problems it would create.

I suspect that with Caracter's contract, both sides know that measures other than mere weight would more accurately assess the underlying concern -- whether that's BMI, body fat percentage, or something else -- but weight is the metric that they can get approved under the CBA, so it's what they use.

Update 3: Jimmy Golen of the Associated Press offers some thoughtful comments:

I think the point is that, whether or not weight is the ideal metric for deciding players generally are in shape, you could certainly come up with an ideal weight, or a reasonable playing weight, for an individual that could be used to judge his conditioning. In other words, the team could be saying that Caracter is in better shape at 275 than whatever he weighed when he signed the deal, so they wanted to entice him to lose weight (or, theoretically, gain some).

More to the point: Your suggestion of BMI is moot, because it measures weight as related to height, so unless we think Caracter is still growing (or shrinking), asking him to make weight is the same thing as setting a certain BMI as a goal.

Legal Aftermath of Brawl in Stands at US Open

We've seen plenty of fights in the stands of baseball, basketball, hockey, and football games, but people who attend tennis matches are often stereotyped as civil or "proper", at least while they are in the tennis stadium (e.g., patrons are expected to be quiet while the match is in play).

That stereotype didn't seem to hold up in the grandstands of Arthur Ashe Stadium (Flushing Meadows, New York) at the U.S. Open last Thursday night, when a male fan insisted on being able to say the "f" word because he paid for a ticket and because he had "a lot of money on the game", while a female fan told him to "shut up" and threatened to have him thrown out of the stadium because of his language, which she deemed inappropriate or abusive. He responded that he wasn't using the "f" word during the actual play, only after each play had ended. She apparently slapped him or tapped him in the face as a way of encouraging him to stop. The argument, which would eventually cause a match between Novak Djokovic and Phillip Petzschner to stop, escalated into a fight between the man and a person described as the woman's father.

Here is a video of the argument and the fight, which starts at about 1:13 -- please note, the "f" word is used about 50 times in 2 minutes, so if you are offended by it, don't watch the video:



Here is the aftermath, courtesy of Robert Dougherty of Associated Content:

Eventually, the US Open fight ended with all three participants being led off in handcuffs. They were not actually arrested, but they were banned from attending any tennis matches in Flushing Meadows for three years.

Although they are not in any trouble from the police, the participants are now out to hurt each other in court. The three are filing civil harassment lawsuits against each other, not long after the evidence of their US Open fight hit YouTube.

Here are a few thoughts of mine:

1) I wonder if the participants might eventually face criminal charges, given the rather compelling Youtube evidence suggesting they committed battery; their physical contact was clearly neither accidental nor necessary and it probably endangered the safety of people seated around them. The video of the fight was not, from what I can tell, immediately available to police -- if the police had the video at the time they detained the participants, the participants probably would have been arrested.

2) I wonder about how crowd control measures during tennis matches differ from those taken to monitor the crowds of other sporting events. Along those lines, could the U.S. Open end up a party to civil litigation for arguably not providing adequate safety? Why didn't security officers show up? How physically close were they? How close should they have been?

3) Not to "blame the victim" and hindsight is of course 20/20, but instead of confronting this belligerent guy, might the female fan and her father, and probably others around them, have been better off alerting stadium security? Getting in his face, and possibly slapping/tapping him, probably weren't the best ways of encouraging him to stop swearing. Then again, maybe they tried to find security and couldn't.

4) If he was truthful in claiming that he was not swearing during the actual play, but only between plays, was he necessarily breaking any stadium rules? Does the volume of his swearing matter?

Possible Collusion and the 85 Percent Rule: Are NFL Teams trading and cutting rookies to avoid paying into collectively-bargained pool?

The National Football League Players' Association is reportedly looking into whether teams are trading rookie players who would be cut in order to avoid cutting them themselves and having to pay 85% of the player's salary. If they are doing that, they could be deemed to be colluding, which generally means two or more teams acting in a way to deprive players of collectively-bargained rights. The NFL-NFLPA collective bargaining agreement contains anti-collusive language under Article XXVIII. Here's more on the allegation:

In a pair trades on Monday, Washington sent 6th round draft pick tight end Dennis Morris to St. Louis for a conditional pick and the Rams sent 5th round pick defensive end Hall Davis to the Redskins for a conditional pick. On the same day, Philadelphia traded 6th round pick running back Charles Scott to Arizona for 6th round pick cornerback Jorrick Calvin.

Under collective bargaining rules, if a player is cut by the team that drafted him, that team is required to pay 85 percent of that player's salary into a pool that is distributed at the end of the season.

The Redskins have already cut Davis.

For more, see this excellent explanation by Sean Fagan of SB Nation:

The Washington Redskins may have gotten up to some hijinks with their trade involving recently-cut defensive lineman Hall Davis and a prior trade involving tight end Dennis Morris. According to Chris Mortensen of ESPN, both the Redskins and the St. Louis Rams are under investigation by the NFLPA for attempting to circumvent the little-known "85 percent" rule.

In layman's terms - any rookie that is drafted by an NFL team is owed 85 percent of his salary if subsequently cut by the team which drafted him. By trading Davis to the Redskins, and having him cut by Washington rather than St. Louis, the Rams save $272,00. Further, the Redskins will save the same $272,000 dollars owed to Morris, who was traded to the Rams earlier in the week and is also expected to be cut.

Might this be collusion by NFL teams to avoid paying salaries -- and salaries of obscure rookie players who when cut attract minimal media attention and who individually may not have much influence on the Players' Association? Or is it just a case of a bunch of late round picks -- whose chances for making any team are likely low -- simply not being good enough to make an NFL team?

The Impact of Tiger Woods Scandal on Morals Clauses in Endorsement Contracts

John Gibeaut of the American Bar Association Journal examines how the scandal involving Tiger Woods and infidelity will impact the use and enforcement of morals clauses in endorsement contracts. Below are excerpts from his piece, which includes comments from Peter Carfagna, Brian Socolow, and me, as well as from Porcher Taylor III and Fernando Pinguelo, both of whom recently authored the excellent article The Reverse-Morals Clause: The Unique Way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals, Cardozo School of Law's Arts & Entertainment Law Journal (2010).

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Morals clauses went largely unquestioned for decades, even during the McCarthy era, when studios used them to fire writers accused of being Communists. Nearly a century later, morals clauses have become ubiquitous in the sports and entertainment industries, as sponsors continue to use them to alter or sever relationships with errant celebrities they hire to hawk everything from breakfast cereal to razor blades.

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Woods isn't the first celebrity whose personal behavior has landed him crosswise with sponsors, and he's unlikely to be the last. Others recently caught up in their own conduct and who paid varying prices for it include Los Angeles Lakers guard Kobe Bryant, charged in a rape case that was later dismissed; Philadelphia Eagles backup quarterback Michael Vick, convicted and sent to prison for running a dogfighting ring; British supermodel Kate Moss, caught snorting cocaine on camera; and Olympic swimmer Michael Phelps, also caught on film—hitting a marijuana bong. Nevertheless, Woods' major-league cheating really scratched some raw nerves.

"It's the image of perfection that's not true," says Vermont Law School professor Michael McCann, also a legal analyst for the magazine Sports Illustrated.

Early morals clauses essentially were non-negotiable adhesion terms that left celebrities no wiggle room. But they may have contained as much bark as bite.

"These clauses would be standard, but very little attention was paid to them," says Bridgewater, N.J., practitioner Fernando M. Pinguelo. "Now I'm finding that they're not only negotiated more but being drafted more carefully in favor of the company."

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The presumption of innocent until proven guilty almost has been reversed, and sponsors almost assume something is going to happen," says Cleveland lawyer Peter A. Carfagna, who represents athletes. "And what is disrepute? They want it to be in the eye of the beholder. And they want to be able to cancel the next day, without benefit of a court proceeding."

The more specific the clause, practitioners say, the better off each side comes out. For example, a sponsor may insist on cancellation in the event of any arrest, while a celebrity may try to push the line back to, say, an indictment or conviction for a felony. Noncriminal conduct, such as marital infidelity, is an especially touchy issue.

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To read the rest of this extensive article, click here. This topic was the subject of a symposium at Cardozo Law School in March titled The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses.

"Let ‘em Play"

Professor Mitchell N. Berman of the University of Texas School of Law has posted a new essay that may be of interest to some readers. ‘Let ‘em Play’: A Study in Sports and Law considers the potential arguments regarding whether officials should call infractions less strictly during the end of a close match than throughout the rest of the game.

The abstract for the essay is below:

Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.

Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.

This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.

If you'd like to read the essay in its entirety, it is available to be downloaded here.