Thursday, December 29, 2011

Panel on The Impact of Sports Collective Bargaining on Labor Relations in Society

While perusing the program for the upcoming American Economic Association annual meeting (Jan. 6-8) in Chicago, I noticed an interesting panel devoted to sports collective bargaining. Details are below:

The Impact of Sports Collective Bargaining on Labor Relations in Society (Workshop)
(J1) (Panel Discussion)

Panel Moderator: Gabriel Gershenfeld, Cleveland Indians, and Michael Wasser (American Rights at Work)
DeMaurice Smith (NFL Players Association) Sports Collective Bargaining: Sports Labor Perspective
Rob Manfred (Major League Baseball) Sports Collective Bargaining: Sports Management Perspective
Arlene Holt-Baker (AFL-CIO) Impact of Sports Collective Bargaining on Labor in America
Martin Mulloy (Ford Motor Company) Impact of Sports Collective Bargaining on Management in America

Saturday, December 24, 2011

Wednesday, December 21, 2011

Statutes of limitations, child sexual assault, and asking the wrong question

Child sexual assault has become the hot topic in the sports-and-law overlap, with allegations against several college football and basketball coaches, AAU officials, and most recently, a Hall of Fame sports writer Bill Conlin of the Philadelphia Daily News. One unifying theme is that many of these cases cannot be prosecuted because the statute of limitations has run on most of these cases (for example, Conlin's alleged assaults all occurred in the 1970s). So a frequently asked question--I was asked it in a radio interview last week and Slate's Jessica Grose raises it again--is why we have statutes of limitations for child sexual assault cases.

But I think that is the wrong question to ask.

On one hand, the answer is easy. We have statutes of limitations in sexual abuse cases for the same reasons we have statutes of limitations for every other crime (except murder, more on that below): Evidence and people disappear and memories fade or change or become distorted, thus we worry about the reliability of any result based on such stale evidence. Jessica interviews my former colleague Aya Gruber (now at Colorado), who argues that this is especially true in a case such as child sexual assault (and perhaps all sexual assault), where the key--and sometimes only--evidence is the victim's testimony. We also believe in a right to repose, or "rest easy," that at some point a person should be able to no longer fear prosecution and get on with his life and his affairs.

Murder long has not been subject to statutes of limitations because society has made a value judgment--murder is the most heinous crime, the ultimate criminal wrong, and that heinousness outweighs the procedural concerns for unreliable judgments and the substantive concerns for alleged perpetrator's right to repose. A good argument can be made that child sexual assault is as or more heinous than murder,* thus we should strike the same balance. And that is what many states have done, eliminating limitations (as some states have done) or making them extraordinarily long and/or tolling them until the child reaches majority. For example, Pennsylvania now can prosecute a case until the child victim turns 50, meaning a limitations period of anywhere from 33 to 50 years, depending on the child's age at the time of the assault. An even better argument can be made that the old limitations periods in effect in the '70s, '80s, and '90s were woefully short (Pennsylvania was 5 years for anything involving penetration and 2 years for inappropriate touching) and based on a fundamental misunderstanding of the nature of the crime and the psychology of how child victims respond.**

But thinking about whether there should be a statute of limitations for child sexual assault, or how long it should be, is the wrong question in considering the prosecution or non-prosecution of the current cases of interest. We are stuck with the reality that there is a statute of limitations for these crimes, that at the time of most of most of these crimes that limitations period was really short, and therefore the statutes have run on these cases and prosecution is barred. In 2003, SCOTUS held in Stogner v. California that the prohibition on ex post facto laws prohibited states from applying newly lenghtened limitations periods to crimes that occurred under an older limitations and that now are time-barred under that former limitations period. The 5-4 majority placed an extended limitations period in the second category, as a law that makes a crime greater than it was at the time of its commission. Most states statutorily avoid any possible ex post facto concerns by only applying these newly extended periods prospectively. Thus, what prevents prosecution of Sandusky, Conlin, et al., is not the statute of limiattions as much as the Constitution's prohibition on ex post facto laws.

    * I distinctly remember a class session in Stephen Presser's American Legal History at Northwestern, in which we debated whether adult rape was more heinous than murder, with a majority of the class believing it was, because the victim lives with the effects of the crime forever. We can multiply that for child victims.

    ** Although what is interesting about Conlin's case is that many of the victims went to their parents and some of the parents confronted Conlin, who allegedly cried when confronted. But no one, not even the adults, ever went to the police.

Friday, December 16, 2011

New Sports Illustrated column: What Sam Hurd's arrest means for the NFL

I have a new column for on Sam Hurd's arrest on drug charges and his alleged list of clients, who reportedly include NFL players.  Hope you can check it out.

Update: on Saturday morning, I was interviewed on CBS The Early Show. CBS News anchor Russ Mitchell asked me about Sam Hurd's drug arrest, the alleged list of list of NFL players he sold to, and what it all means for the NFL.

Thursday, December 15, 2011

Introducing the Great Lakes Sports and Entertainment Law Academy

Congrats to Peter Carfagna and Craig Nard, among others, for establishing the Great lakes Sports and Entertainment Law Academy, a summer program in Cleveland for law students interested in sports and entertainment law.  It looks to be a terrific program. Here are the details:

Great Lakes Sports and Entertainment Law Academy

May 14 – June 3, 2012

A joint program of: Center for Law, Technology, and the Arts, Case Western Reserve University School of Law and Cleveland-Marshall College of Law, Cleveland State University

The law schools of Case Western Reserve University and Cleveland State University are pleased to introduce the Great Lakes Sports & Entertainment Law Academy, an exciting new summer program for law school students that will begin in May of 2012. The Academy will be located in Cleveland, Ohio, home to three professional sports franchises and thriving arts and musical institutions. The product of a unique collaboration between the law schools of Cleveland State University and Case Western University, the Academy has partnered with several local and national sports and entertainment franchises, as well as local educational and cultural institutions, to offer students an intense, three-week, interdisciplinary classroom and experiential learning opportunity.

A special feature of the program is the chance for students to secure a limited number of externships at various high-profile sports and entertainment organizations.

Following the three weeks of coursework, up to fifteen students will have the opportunity to participate in highly selective externships. The externships are for three credits and last for nine weeks (approximately 20 hours per week). The anticipated externships, which begin on June 4, 2012, are sponsored by various high-profile sports and entertainment institutions, including:

Cleveland Browns;
SPIRE Institute;
Lake County Captains;
Vuguru Studios;
Horizon League;
Mid-American Conference;
Cleveland State University/Nelligan Sports Marketing Agency;
Greater Cleveland Film Commission

Application deadline: February 15, 2012
Externship application/writing deadline: February 15, 2012

Courses at the 2012 Academy
Courses take place at Cleveland-Marshall College of Law, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115-2214

  • Representing the Professional Athlete
  • Negotiation Strategies in Sports Management
  • Representing the Musical Artist
  • Entertainment Law: Film and Television


Peter A. Carfagna, Co-Director of the Academy, is Chairman/CEO of Magis, LLC, a privately owned sports marketing, management and investment company, including family ownership of the Lake County Captains, Cleveland Indians Class A Affiliate. He is a professor at Harvard Law, Cleveland Marshall College of Law, and Case Western Reserve University School of Law.

Mark Avsec is partner and Vice-Chair of the Intellectual Property Practice Group at Benesch, Friedlander, Coplan & Aronoff, LLP. Before becoming a lawyer, Professor Avsec earned a living as a studio musician, producer and award-winning songwriter.

David Shall is Head of Business Operations & General Counsel at Vuguru LLC, a pioneer in multi-platform programming and content.

All students who satisfactorily complete six credit hours of coursework will receive a certificate of completion. Up to 15 students will be selected for an externship through a separate application process, a competitive writing submission in response to a Sports Law Problem, available at this web address beginning December 15, 2011.

For further information:
Professor Craig A. Nard, Co-Director, Great Lakes Sports and Entertainment Law Academy
Phone: (216) 368-6348

Tuesday, December 13, 2011

New Sports Illustrated column: What is Jerry Sandusky's Lawyer Doing?

In a new column for, I raise some questions of Joe Amendola's legal strategy in representing Jerry Sandusky.

Show-Me Sports Law

Guest post from Dr. Anastasios Kaburakis, a professor at the John Cook School of Business, Saint Louis University:
After St. Louis’ beloved Cardinals lost Albert Pujols to the L.A. Angels last week, there was quite a discussion on how a small market like St. Louis can compete in intense, financially challenging times, and indeed in a cut-throat industry like sports. St. Louis ranks 18th in metropolitan area size 
in the U.S.

What is most interesting for sports law aficionados, however, is that St. Louis is developing into a hub for sports law. It was during the same fateful week of Dec. 5 that one of the two biggest law firms  in town, Thompson Coburn, announced a major addition, the immediate past President of the Sports Lawyers Association, Bob Wallace, veteran NFL executive and former St. Louis Rams’ general counsel, who will lead a new sports law practice group. This follows the other major St. Louis firm, Bryan Cave, announcing earlier this summer  the commencement of its sports law practice group, led by Ryan Davis. Both firms followed suit along the path of Stinson LLP and Bob Lattinville, who together with Gary Uberstine formed a national partnership, Premier Stinson Sports, specializing in elite coaches’ representation. Of course, when representation is discussed, St. Louis is home to CAA Football, Jim Steiner, Ben Dogra, and Tom Condon, who compete for the top-level football talent with cross-town rival Harold Lewis and the National Sports Agency.

Further, for sports law gurus, one needs to keep in mind that St. Louis-based Harness, Dickey, and Pierce, a top-5 global Intellectual Property firm, has been attending to sports IP issues for years, receiving international attention and fantasy sports fans’ adoration due to the successful CBC v MLBAM case before the Eighth Circuit, led by Super IP litigator Rudy Telscher.

Add to those national players the several pockets of key sport finance consultation in town, as well as a focused sport law research group including international academics and practitioners collaborating with the Saint Louis University John Cook School of Business sports business program, and one observes that the Gateway City may well be the best-kept secret in international sports law.

Here’s hoping that St. Louis’ Law Schools also recognize the tremendous opportunities for young practitioners, as well as the further involvement our fine academic institutions may have through their meaningful contributions to the industry (not to mention the patent prospects for landing external funding through such service and collaborative initiatives with the various key industry players in town). Conceivably, St. Louis may become an international destination for sport law studies, and the promising challenge is there for a law school to be a first entrant in town, joining the 12 or so other law school-housed sport law centers, institutes, clinics, and certificate programs around the U.S. already providing valuable service to law students, faculty, practitioners, and the entire sports industry.

Sunday, December 11, 2011

Sports Wagering Update

I recently had a chance to listen in on an iGaming Business-sponsored webinar about developments in New Jersey and more general topics related to the legality of sports wagering in the USA. Joe Brennan of iMEGA was the featured speaker. The recent state-wide vote in New Jersey has garnered a lot of attention. However, a quick perusal of my research file devoted to this issue revealed three other recent developments that deserve mention.

1. Earlier this month, prosecutors in Massachusetts were able to secure the first conviction under the Unlawful Internet Gambling Enforcement Act of 2006. The person convicted was previously affiliated with an offshore sports book. The official press release can be found here.

2. The Las Vegas Review-Journal is reporting that authorities have indicted an individual in a probe related to the false reporting of information. The individual is alleged to have bet on behalf of ACME Group Trading, an entity connected to prominent sports bettor Billy Walters. Nevada law prohibits the use of "runners" who place bets on the behalf of others. The 60 Minutes profile of Billy Walters can be found here.

3. Developments in Europe dwarf those in the United States. Given the vast number of cross-border issues inherent in sports gambling, the European Court of Justice (ECJ) has been busy adjudicating a large number of claims. Tassos Kaburakis and I recently collaborated to write a short primer on a handful of important ECJ cases. Our article was recently published in the Journal of Gambling Business and Economics. The abstract is below:

Given its high level of regulation, the gambling industry must be able to react quickly to litigation and resulting change in policy (and enforcement thereof). Using a case study approach, this short paper highlights how the twin issues of policy and litigation have recently impacted the gambling industry in the European Union. Examples focus on recent developments in the EU that outline the relevant contours of the European Court of Justice's jurisprudence, with a special emphasis on the dynamic situation in Greece. These examples shape the ensuing discussion of the future of both the regulation and litigation of the EU's gambling industry.

Monday, December 5, 2011

Dan Markel argues for a sport of hockey without "brutal disabling fights"

Provocative piece by Howard's PrawfsBlawg colleague and Florida State law professor Dan Markel (who is originally from one of the best hockey cities around, Toronto): The End of Hockey (Fighting).

SEC as solution to ridiculous public stadium financing?

I am so proud to be a Miami-Dade resident (although not a Marlins fan).

Yale Law School Panel on The Year of the Lockout: "Lockouts and Leverage: Lessons from the NBA and NFL Lockouts and New Collective Bargaining Agreements"

As the NBA lockout and the 2012 calendar year fade into the night, Yale Law School will be hosting the first panel discussion that takes stock of what has been the Year of The Lockout.

On Monday December 12, the Yale Law and Business Society will host a panel discussion titled "Lockouts and Leverage: Lessons from the NFL and NBA Lockouts and New Collective Bargaining Agreements".  The panel will be held from 3 to 4 p.m. and will be open to the public. The NBA and NFL lockouts, the corresponding litigation and the resulting collective bargaining agreements will all be discussed.

I am honored to be joining Professor George Priest -- one of the nation's leading experts on antitrust law -- on the panel.  Here is the official announcement:

The Yale Law and Business Society


Lockouts and Leverage: 

Lessons from the NBA and NFL Lockouts and New Collective Bargaining Agreements

* Taking stock of the NBA and NFL lockouts
* Analysis of the legal and business strategies and lessons learned

* Who Won?  Who Lost?
* Impact of new collective bargaining agreements - who gains, who loses - and changes in relationship between NFL and NBA players and their respective leagues
* Lingering Issues

Yale Law School graduate (1999).  Reporter for The Associated Press for over 20 years, covering sports in Boston for the world’s largest newsgathering organization since 1995. He has covered five Super Bowls, three Olympics and three World Series, including the Red Sox victories in 2004 and ’07. Previously, he worked for the AP in New York, Minneapolis, Baton Rouge, La., and Buffalo, N.Y.


Professor of Law and Director of Sports Law Institute, Vermont Law School
On-Air Legal Analyst, NBA TV
Legal Analyst and Writer, Sports Illustrated
Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship, Yale Law School

For additional information, please contact Jonathan Soleimani (Co-Director of Programming, Yale Law & Business Society) at jonathan.soleimani[at]

Sunday, December 4, 2011

In Memoriam: Robert "Bob" Berry

Very sad news last week in the sports law world, as former Boston College Law School sports law Professor Bob Berry passed away at 75.  Marquette University Law School sports law Professor Matt Mitten shares the following with our readers:
Sports Law Academic World Loses One of Its Heavy Hitters

Bob Berry, a retired Boston College emeritus professor of law who was an internationally recognized expert in sports law, died recently in Florida.  During his distinguished academic career, he taught sports law courses at several law schools, including Boston College, Ohio State, and Capital.  Bob authored or co-authored many sports law review articles and books, including Sports Law and Regulation: Cases, Materials, and Problems (with Matthew Mitten, Timothy Davis, and Rodney Smith).  He was well known for his extensive knowledge of sports law along with his kindness and his sense of humor.  Bob was a wonderful friend, mentor, and co-author, whom I was privileged to know.  All of us, especially his wife Carole and other members of his family, have suffered a great loss.

Bob is fondly remembered by his friends and fellow sports law professors:

His close friend Bill Gould, Charles A. Beardsley Professor of Law at Stanford and former Chair of the National Labor Relations Board: “I always thought of Bob as the dean of all academic sports lawyers. He developed the first Sports Law course at BC Law in 1972.  The world has lost a good, genuine-so genuine-smart guy who was very wise and compassionate. I never had a better or more loyal friend.”

Gary Roberts, Dean & Gerald L. Bepko Professor of Law, Indiana University Robert H. McKinney School of Law in Indianapolis: “Bob was a really good guy who came to be a very good friend.  He truly was one of the founders, if not the founder, of our ‘sports law academic’ club.” 

Roger Abrams, Richardson Professor of Law, Northeastern University: “Bob certainly was in the Sports Law Hall of Fame and a really nice colleague to all of us.”

Barbara Osborne, Associate Professor, Exercise and Sport Science, University of North Carolina: “My heart aches. As one of Bob's former students I know first-hand what an impact he had.”

Bob’s family has requested that any donations in his memory be made to the Jackie Robinson Foundation, 75 Varick Street, 2nd floor, New York, New York 10013.

Matt Mitten
Professor of Law and Director, National Sports Law Institute and
LL.M. in Sports Law Program for Foreign Lawyers
Marquette University Law School

Thursday, December 1, 2011

Transitioning to the NBA: Advocating on Behalf of Student-Athletes for NBA & NCAA Rule Changes

Back in April I wrote a piece for the Huffington Post that argued against the shorting, by the NCAA, of the evaluation period for men's basketball players. My friends at Harvard Law School's Journal of Sports & Entertainment Law asked me to turn that short piece into a law review article, which I have now done.

While still being fine-tuned for January publication, I have been given permission to share this document now given the debate on the draft eligibility rules between the NBA and NBPA. [I know, they are technically a trade association today.] You can access the document on the SSRN website here.

The abstract reads as follows:

The manner in which college athletes enter the professional market of basketball has significantly deteriorated during the past several decades. The transition from college to the NBA has become more fraught with challenges and misinformation than ever before, a fact likely to lead to a wide range of mistakes by countless student-athletes trying to evaluate whether and when to enter professional basketball.

Highlighting a particular area where student-athletes’ interests are marginalized, this Article calls attention to the challenges that student-athletes in the sport of men’s college basketball face when trying to make a fully informed decision as they evaluate whether or not to enter the NBA draft and forgo remaining college eligibility. Unfortunately this difficult decision period is not unique to men’s basketball, but highlights a broader trend showing that colleges, conferences and the NCAA have done shockingly little to provide guidance and counsel to student-athletes across the country who are navigating the transition from college to the professional leagues.

This Article will address both how we developed the current legal rules governing this environment by reviewing the history of the NBA draft and the NCAA’s role in overseeing college athletes and its definition of amateurism. With this recent trend in mind, this Article will then turn its attention to a recent NCAA rule change that unambiguously illustrates the fact that the best interests of the student-athlete are marginalized, if not ignored, in the process of making the leap from college to the NBA. Finally, to foster dialogue, solutions will be proposed on how to address the hardships college student-athletes face during this transition period.

Among the most meaningful recommendations are:

1. The NBA should adopt draft eligibility rules that declare high school graduates are automatically draft eligible and need not petition or declare their intention for the draft. If a player decides to attend college, NBA rules should require that the player not be draft eligible for two years—after a player’s sophomore year of college.
2. NCAA and NBA rules should permit and encourage potential players to hire an “advisor” to assist during this challenging period.
3. The NCAA and NBA should expand and shift the number of days during which student-athletes may explore their potential as an NBA player while maintaining their college eligibility.
4. The creation of a true “NBA Combine” – similar to the NFL Combine – within the time frame the NCAA permits tryouts that enable all underclassmen to compete and perform in front of NBA personnel.
5. Colleges and universities across the country should invest in Professional Sports Counseling Panels (“PSCPs”) so that student-athletes can get unbiased guidance during this critical period of their lives.
6. The NBA and the NCAA could jointly revise the rules relative to the NBA draft, whereby any student-athlete who declares himself eligible has the ability, if not selected in the first round of the NBA draft and thus guaranteeing himself a contract under the latest CBA, to return to college.
7. Encourage student-athletes to graduate by offering financial incentives at the NBA level for those with additional years in college.

Tuesday, November 29, 2011

A place for this blog and its EIC

Slate's weekly sports podcast "Hang Up and Listen" leads off this week with a discussion of the end of the NBA lockout. One of the points of discussion is the failure of the sports media to fully grasp and accurately cover the bargaining process. Not being experienced in how labor and litigation negotiations work, reporters fall for dramatic, tragic, and pessimistic narratives because, to their eyes, the process appears to be failing. They specifically note Bill Simmons' calls for both David Stern and Billy Hunter to be fired for their mismanagement of this process, a sentiment widely shared by fans but not by experienced labor experts (who recognize legal posturing as all part of the negotiation process).

If this assessment is accurate, it presents a good argument for this blog and, in particular, for Mike's work on ESPN and NBA-TV. They provide voice that can report and opine on the legal issues from a real position of experience, avoiding the narrative traps.

Time for Transformative Change in Intercollegiate Athletics

Well, I've spent the better part of the fall semester thinking and talking about change in intercollegiate athletics. I figured it was time to put my ideas and arguments down on paper and, as such, wrote a brief article, summing up my thoughts and, more importantly, making some recommendations.

The essay was just posted on Huffington Post here.

In sum, I argue that we need to address three key areas: 1) Academics & Integrity, 2) The Interests and Experiences of Student-athletes; and 3) Accountability.

Let me know what you think...and help me improve my proposals.

Monday, November 28, 2011

NBA TV Interview: Remaining Steps

I joined David Aldridge, Reggie Miller, Dennis Scott and Matt Winer tonight on NBA TV to talk about remaining steps for there to be NBA basketball on December 25. 

New Sports Illustrated Inside Report Interview: Legal Fallout of Bernie Fine Scandal

International Sports Law Review Pandektis

The most recent issue of the International Sports Law Review Pandektis, an IASL-sponsored journal, has been published. A number of articles caught my eye that Sports Law Blog readers may be interested in. Of particular note is the article published by Stephen Argeris pertaining to the MLB draft, which was presented earlier this year at the MIT Sloan Sports Analytics Conference and last year at the International Sport Law & Business Conference.

The complete table of contents for the most recent issue can be found here.

Friday, November 25, 2011

NBA and Players Talk Litigation Settlement: Will it lead to new CBA?

I was on NBA TV this afternoon to talk about owners and players having litigation settlement talks, how they can convert those talks into a new CBA, and why there is reason to be optimistic. 

Could David Boies be the X Factor for players and help them reach a deal with NBA that Billy Hunter, Derick Fisher and Jeffrey Kessler couldn't? 

More known for his litigation skills than settlement skills, this could become Boies's finest hour.

Thursday, November 24, 2011

Sports as protected expression?

For all my writing on fan speech, this is a place I never thought to go: Last week, UFC and several UFC fighters have challenged New York's ban on MMA exhibitions and profiting from those exhibitions on, among other things, First Amendment grounds. The argument is that the state is targeting the message of MMA through a commercial ban, even though the activities themselves are lawful in a gym. The plaintiffs are represented by Barry Friedman, a great con law scholar at NYU (and, I am guessing, an MMA fan).

Friedman has tried to argue that MMA is mixed martial arts, so is an activity that is more uniquely performative than other sports (more akin to dancing than basketball), so it does not necessarily follow that all sports are expressive. Or maybe all sports are expressive, with whatever legal issues that may create.

As I said, I had never thought to go here. But if sport is expressive, then I believe my arguments that watching and cheering for sports gains added strength.

Tuesday, November 22, 2011

Real-Life Fantasy Sports Law: Enter the Lobbyists

Back in August, I blogged about the proliferation of the fantasy sports industry and whether certain fantasy sports games might violate state gambling laws. I also posted a draft of my newest law review article: "A Short Treatise on Fantasy Sports and the Law."

Since then, the Fantasy Sports Trade Association ("FSTA") has announced the hiring of Travis McCoy, a former aid to Senator John Boehner (R-Ohio), to serve as its first official lobbyist. According to USA Today, the FSTA "still is deciding what states it will target first."

The FSTA's hiring of a lobbyist is noteworthy on several levels. First, it signals an acknowledgement by the industry that certain state gambling laws are unfavorable to fantasy sports. In addition, it shows the early stages of collective action within the fantasy sports industry.

It will be interesting to see if the FSTA’s lobbying efforts will target only state gambling laws that disallow fantasy sports leagues, or if they will also target state laws that limit fantasy websites' administrative fees. For example, Montana law currently limits fantasy sports websites to charging 15% in administrative fees. This limit is probably unpopular with fantasy sports businesses. However, it is intended to protect fantasy participants.

Monday, November 21, 2011

NBA Players drop lawsuit in California - focus on lawsuit in Minnesota

A little bit of litigation news tonight.  I discuss it on NBA TV.

Also, it was announced that the Honorable U.S. District Judge Patrick J. Schiltz will be the judge for Carmelo Anthony et al. v. NBA. Schiltz, a graduate of Harvard Law School, is a former clerk to U.S. Justice Antonin Scalia and former professor at the University of Notre Dame Law School. A practicing attorney in Minnesota in 1995, Schiltz represented the T-Wolves in case re: relocation of team to New Orleans. In the case, the NBA Board of Governors rejected sale of T-Wolves to investor group, "Top Rank", in New Orleans. NBA then sued both T-Wolves and Top Rank, seeking declaratory order from court that T-Wolves owners could not sell team to Top Rank w/o league approval. Schiltz represented T-Wolves, which eventually joined the side of the NBA in the litigation. Not only was he lawyer in litigation over T-Wolves failed relocation to New Orleans, but Schiltz represented NFL in several cases, including Powell v. NFL and McNeil v. NFL. McNeil helped lead to new CBA between NFL and NFL players.

New Sports Law Scholarship

Recently published sports law scholarship includes:
Jessica L. Adair, In a league of their own: the case for intersex athletes, 18 SPORTS LAWYERS JOURNAL 121 (2011)

Adam Epstein & Bridget Niland, Exploring Ethical Issues and Examples by Using Sport, 13 ATLANTIC LAW JOURNAL 13 (2011)

James R. Andrews, Why are there so many injuries to our young athletes? Professionalization and specialization in youth sport, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 575 (2011)

Ross Appel, Note, Head east, young man (and comparatively older men who are likely to languish in the minor leagues), 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 109 (2010)

Andrew D. Appleby, For the love of the game: the justification for tax exemption in intercollegiate athletics, 44 JOHN MARSHALL LAW REVIEW 179 (2010)

Jessica Baranko, Hear me roar: should universities use live animals as mascots?, 21 MARQUETTE SPORTS LAW REVIEW 599 (2011)

Jonathan Bateman, Book Note, Reviewing Billy Hawkins, The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions, 21 MARQUETTE SPORTS LAW REVIEW 793 (2011)

Eric Blevins, College football’s BCS (bowl cartel system?): an examination of the Bowl Championship Series agreement under the Sherman Act, 18 SPORTS LAWYERS JOURNAL 153 (2011)

Victor Broccoli, Policing the digital wild West: NCAA recruiting regulations in the age of Facebook and Twitter, 18 SPORTS LAWYERS JOURNAL 43 (2011)

Christine A. Burns, Comment, Potential game changers only have eligibility left to suit up for a different kind of court: former student-athletes bring class action antitrust lawsuit against the NCAA, 6 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 391 (2011)

Loftus C. Carson, II & Michelle A. Rinehart, The big business of college game day, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2010)

Marc Charmatz, Lindy L. Hedges-Wright & Matthew Alex Ward, Personal foul: lack of captioning in football stadiums 45 VALPARAISO UNIVERSITY LAW REVIEW 967 (2011)

Josh Chetwynd, Clubhouse controversy: a study of dispute resolution processes between teammates in Major League baseball, 16 HARVARD NEGOTIATION LAW REVIEW 31 (2011)

Christopher B. Chuff, Comment, “Rolling the dice” on financial regulatory reform: gambling law as a framework for regulating structured investments, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 569 (2011)

Jeremy Corapi, Note, Huddle up: using mediation to help settle the National Football League labor dispute, 21 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 789 (2011)

Joshua B. Couvillion, Note, Defending for its life: ChampionsWorld LLC v. United States Soccer Federation denies extending antitrust immunity to USSF in regulating professional soccer, 18 SPORTS LAWYERS JOURNAL 325 (2011)

Caitlin M. Cullitan, Note, “I’m his coach, not his father.” A Title IX analysis of sexual harassment in college sports, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 53 (2010)

Elizabeth Hart Dahill, Note, Hosting the Games for all and by all: the right to adequate housing in Olympic host cities, 36 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1111 (2011)

Darren Heitner & Jason Wolf, In Baseball's Best Interest?: A Discussion of the October 2010 MLBPA Regulations Governing Player Agents, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 249 (2011)

Marc Edelman & Joseph A. Wacker, Collectively bargained age/education requirements: a source of antitrust risk for sports club-owners or labor risk for players unions?, 115 PENN STATE LAW REVIEW 341 (2010)

Marc Edelman, Does the NBA still have “market power?” Exploring the antitrust implications of an increasingly global market for men’s basketball player labor, 41 RUTGERS LAW JOURNAL 549 (2010)

Brad Ehrlichman, In this corner: an analysis of federal boxing legislation, 34 COLUMBIA JOURNAL OF LAW & ARTS 421 (2011)

Mitchell L. Engler, The untaxed king of South Beach: LeBron James and the NBA salary cap, 48 SAN DIEGO LAW REVIEW 601 (2011)

Natasha C. Farmer, Note, Jockey advertising regulations in horseracing, 3 KENTUCKY JOURNAL OF EQUINE, AGRICULTURAL & NATURAL RESOURCES LAW 103 (2010-2011)

Meir Feder, Is there life after death for sports league immunity? American Needle and beyond, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 407 (2011)

Lauren Ferrante, Note, Two for one: how the NCAA rules do not adequately address package deals and a proposed rule to prohibit them, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 77 (2010)

David Franklin, Note, League parity: bringing back unlicensed competition in the sports fan apparel market, 86 CHICAGO-KENT LAW REVIEW 987 (2011)

Laurie C. Frey, How the smallest market in professional sports had the easiest financial journey: the renovation of Lambeau Field, 18 SPORTS LAWYERS JOURNAL 259 (2011)

Kristina M. GerardiTackles that rattle the brain, 18 SPORTS LAWYERS JOURNAL 181 (2011)

Ariana E. Gillies, Comment, Not with a bang, but a whimper: Congress’s proposal to overturn the Supreme Court’s Leegin decision with the Discount Pricing Consumer Protection Act of 2009, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 645 (2011)

Nathaniel Grow, Louisville v. Duke and its implications for breached college football scheduling agreements, 37 JOURNAL OF COLLEGE & UNIVERSITY LAW 239 (2011)

Jennifer Gustafson, Comment, Bronze, silver, or gold: does the International Olympic Committee deserve a medal for combating human trafficking in connection with the Olympic Games?, 41 CALIFORNIA WESTERN INTERNTAIONAL LAW JOURNAL 433 (2011)

Diane Heckman, The entrenchment of the glass sneaker ceiling: excavating forty-five years of sex discrimination involving educational athletic employment based on Title VII, Title IX and the Equal Pay Act, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 429 (2011)

Dennis P. Hughes, Jr., Book Note, Reviewing Bill Madden, Steinbrenner: The Last Lion of Baseball, 21 MARQUETTE SPORTS LAW REVIEW 801 (2011)

Michelle R. Hull, Note, Sports leagues’ new social media policies: enforcement under copyright law and state law, 34 COLUMBIA JOURNAL OF LAW & ARTS 457 (2011)

Bryan T. Ikegami, Note, From dumpster to dicta: how the BALCO investigation created incurable violations of players' rights and how to prevent them,34 COLUMBIA JOURNAL OF LAW & ARTS 491 (2011)

Mohit Khare, Note, Foul ball! The need to alter current liability standards for spectator injuries at sporting events, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2010)

Robb Kuczynski, Book Note, Reviewing Charles H. Martin, Benching Jim Crow: The Rise and Fall of the Color Line in Southern College Sports, 1890-1980, 21 MARQUETTE SPORTS LAW REVIEW 787 (2011)

Adam Harris Kurland, The prosecution of Michael Vick: of dogfighting, depravity, dual sovereignty, and “A Clockwork Orange,” 21 MARQUETTE SPORTS LAW REVIEW 465 (2011)

Christina Lembo, Comment, FIFA transfer regulations and UEFA player eligibility rules: major changes in European football and the negative effect on minors, 25 EMORY INTERNATIONAL LAW REVIEW 539 (2011)

Sheri Lipman, The story of the disappearing season: should strict liability be used in the NCAA infractions process?, 41 UNIVERSITY OF MEMPHIS LAW REVIEW 847 (2011)

James T. & Lisa P. Masteralexis, If you’re hurt, where is home? Recently drafted minor league baseball players are compelled to bring workers’ compensation action in team’s home state or in jurisdiction more favorable to employers, 21 MARQUETTE SPORTS LAW REVIEW 575 (2011)

Robert A. & Amy Christian McCormick, Major college sports: a modern apartheid, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 13 (2010)

James T. McKeown, The economics of competitive balance: sports antitrust claims after American Needle, 21 MARQUETTE SPORTS LAW REVIEW 517 (2011)

Richard H. McLaren, Is sport losing its integrity?, 21 MARQUETTE SPORTS LAW REVIEW 551 (2011)

Mary Catherine Moore, Note, There is no “I” in NCAA: why college sports video games do not violate college athletes’ rights of publicity such to entitle them to compensation for use of their likenesses, 18 JOURNAL OF INTELLECTUAL PROPERTY LAW 269 (2010)

William E. Nesnidal, The fan can phenomenon: the scope of universities’ color schemes as trademarks in light of Budweiser’s team pride campaign, 18 SPORTS LAWYERS JOURNAL 283 (2011)

John V. O’Grady, Casenote, The end of indecency? The Second Circuit invalidates the FCC’s indecency policy in Fox Television Stations, Inc. v. FCC, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 527 (2011)

Elizabeth Odian, Preventing Sonicsgate: the ongoing problem of
franchise relocation

David A. Palanzo, Comment, Safety squeeze: banning non-wood bats is not the answer to amateur baseball’s bat problem, 51 JURIMETRICS JOURNAL 319 (2011)

R. Alexander Payne, Note, Rebuilding the prevent defense: why unethical agents continue to score and what can be done to change the game, 13 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 657 (2011)

David Pepper, Comment, Anand v. Kapoor, 55 NEW YORK LAW SCHOOL LAW REVIEW 1191-1211 (2010/11)

Christopher Powell, Comment, Premises liability in California: chilling the diffusion of bicycle motocross, 47 CALIFORNIA WESTERN LAW REVIEW 329 (2011)

Timothy Poydenis, The unfair treatment of Dominican-born baseball players: how Major League Baseball abuses the current system and why it should implement a worldwide draft in 2012, 18 SPORTS LAWYERS JOURNAL 305 (2011)

Erica N. Reib, Comment, Ante up or fold: what should be done about gambling in college sports?, 21 MARQUETTE SPORTS LAW REVIEW 621 (2011)

Ryan M. Rodenberg & Andrea N. Eagleman, Uneven bars: age rules, antitrust, and amateurism in women’s gymnastics, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 587 (2011)

Chris Sagers, Why Copperweld was actually kind of dumb: sound, fury and the once and still missing antitrust theory of the firm, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 377 (2011)

Michael C. Shull, Comment, Biting the hand that feeds: how trademark protection might threaten school spirit, 21 MARQUETTE SPORTS LAW REVIEW 641-665 (2011)

Rachel D. Solomon, Note, Cuban baseball players, the unlucky ones: United States-Cuban professional baseball relations should be an integral part of the United States-Cuba relationship, 10 JOURNAL OF INTERNATIONAL BUSINESS AND LAW 153 (2011)

Patrick Sterk, To pray or to play: religious discrimination in the scheduling of interscholastic athletic events, 18 SPORTS LAWYERS JOURNAL 235 (2011)

Alexander F. Tilton, Note, Mayer v. Belichick: “spygate” scandal is not the court’s concern, 18 SPORTS LAWYERS JOURNAL 341 (2011)

Brian Welch, Comment, Unconscionable amateurism: how the NCAA violates antitrust by forcing athletes to sign away their image rights, 44 JOHN MARSHALL LAW REVIEW 533 (2011)

Kevin W. Wells, Labor relations in the National Football League: a historical and legal perspective, 18 SPORTS LAWYERS JOURNAL 93 (2011)

Gregory J. Werden, American Needle and the application of the Sherman Act to professional sports leagues, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 395 (2011)

Matthew A. Westover, Comment, The breaking point: examining the potential liability of maple baseball bat manufacturers for injuries caused by broken maple baseball bats, 115 PENN STATE LAW REVIEW 517 (2010)

Ulysses S. Wilson, Comment. The standard of care between coparticipants in mixed martial arts: why recklessness should ‘submit’ to the ordinary negligence standard, 20 WIDENER LAW JOURNAL 375 (2011)

Roberta Furst Wolf, Note. Conflicting anti-doping laws in professional sports: collective bargaining agreements v. state law, 34 SEATTLE UNIVERSITY LAW REVIEW 1605 (2011)

Daniel J. Zajda, A true home field advantage: a striking coincidence in the criminal prosecutions of professional athletes for in-game violence, 18 SPORTS LAWYERS JOURNAL 1 (2011)

Michael K. Zitelli, The controversy ensues: how Major League Baseball’s use of DNA testing is a matter for concern under the Genetic Information Non-Discrimination Act, 18 SPORTS LAWYERS JOURNAL 21 (2011)

University of Baltimore Law Professor Dionne Koller on Penn State Scandal

There have been a number of provocative and well-argued commentaries on the Penn State scandal.  University of Baltimore School of Law Professor Dionne Koller provides another one and from a vantage point that has not been raised: It's a Guy Thing at Penn State, and That's a Problem

Temple Law Professor Jermei Duru on Penn State scandal

Great piece on The Post Game by Professor Jeremi Duru on the Penn State scandal - Explaining Penn State Scandal To My Dad.

Sunday, November 20, 2011

NY Times Article on becoming a law professor: Is it like a pro sports draft?

Very provocative article today by David Segal of the NY Times.  Among many points critical of law school teaching and of allocation of law school resources - and students' tuition dollars - on arguably irrelevant or ponderous legal scholarship, he makes an apt comparison between how one becomes a law professor and how a prospect participates in a pro sports draft:
The Prestige Game

About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.

At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.

Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”

Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of  law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).
To read this article, click here.

NBA's "one and done" rule: if lockout persists, will someone challenge rule?

Tom Reed of the Cleveland Plain Dealer explores the possibility of the NBA holding a draft during an extended lockout.  The draft and particularly the "one and done" eligibility rule -- which requires that U.S. players be 19-years-old and one year removed from high school -- would be subject to antitrust challenge, as they would no longer be borne from collective bargaining.  Reed interviews Alan Milstein, Sonny Vaccaro and me on the topic.

For a great discussion on the empirical analysis of players who have jumped from high school to the NBA, see Zach Lowe's recent SI column

Related point: there is a very good chance that when the lockout is ultimately resolved, and a new CBA is in place, the eligibility rule will be raised to 20-years-old and two years removed from high school.  Whether that will motivate players to skip what would be their freshman and sophomore years in college to play professionally in Europe for a couple of years remains to be seen.

Friday, November 18, 2011

The Penn State Debate: Are NCAA Sanctions Inevitable?

Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on. 

By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.

The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1  lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”

To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.

Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.

Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating“We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.

Sports Law Internship Opportunity

The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:

Thursday, November 17, 2011

Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)

By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:
- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).

- Anthony v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the Northern District of California, which is part of the 9th Circuit).

- National Basketball Association v. National Basketball Players Association (filed as a declaratory judgment suit by the NBA teams against the players on Aug. 2, 2011 in the U.S. District Court for the Southern District of New York, which is part of the 2d. Circuit).
Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.

(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.

One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.

In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.

(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case

In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."

While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.

While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.

For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.

Wednesday, November 16, 2011

Questioning the NBA Players' Litigation Strategy

NBA players filed two different antitrust lawsuits against the NBA owners on Tuesday, one in the U.S. District Court for the Northern District of California, and one in the District for Minnesota. Although I haven't yet been able to track down a copy of either complaint online, the players' attorney David Boies has stated that he doesn't intend to pursue a preliminary injunction lifting the NBA's lockout in either case. Boies, of course, previously represented the NFL owners in the Brady v. NFL litigation this past spring, where he successfully persuaded a majority of the Eighth Circuit panel that a preliminary injunction blocking a lockout is improper under the Norris-LaGuardia Act.

Despite the Eighth Circuit's decision in Brady, I can't help but think that the NBA players are making a mistake by not seeking a preliminary injunction to lift the lockout. Although the NFL players ultimately lost on the injunction issue at the Eighth Circuit, they were nevertheless able to convince the district court judge, as well as one of the three appellate judges, that a preliminary injunction lifting a lockout could issue under the Norris-LaGuardia Act. And even the majority of the Eighth Circuit panel believed that injunctive relief might be appropriate to temporarily lift the lockout for at least a segment of the players (i.e., those not currently under contract with an NFL team). Therefore, there is a legitimate chance that a different judge (and perhaps a panel of the Ninth Circuit) would be willing to grant the NBA players preliminary injunctive relief preventing the NBA owners from continuing their lockout.

Given this possibility, I don't see why the NBA players wouldn't at least seek a preliminary injunction. A court order lifting the lockout would give the players perhaps the greatest bargaining leverage they could hope to achieve from a lawsuit against the owners. In turn, an injunction would provide players with the best chance of reaching a favorable resolution of the dispute in time to save at least part of the season. Meanwhile, the potential downside of seeking a preliminary injunction is minimal, since a refusal by the court would merely maintain the status quo.

Consequently, I don't understand the logic behind not seeking a preliminary injunction. What am I missing here?

Tuesday, November 15, 2011

New Sports Illustrated Column: Legal Implications of Jerry Sanduskys' Interview with Bob Costas

I have a new SI column on the Penn State scandal.  Here is an excerpt:
The problem with Sandusky's legal strategy is not only that a growing number of men independently charge that Sandusky raped them while they were children, but that also admitting to strange and lewd behavior with children would likely make jurors highly suspicious of him and more inclined to convict him of sexual assault. Put differently, it's hard to believe there is a merely a misunderstanding between Sandusky's recollection of the facts and that of the alleged victims when Sandusky freely admits to showing terrible judgment.

The interview also reflects poorly on Penn State. Sandusky admitted to behavior that was far from discreet and was sure to attract the attention of others. Along those lines, did no one at Penn State find it disconcerting that Sandusky was showering with boys? Did any school official notice any unusual "touching" by Sandusky? Joe Paterno's insistence that "we were all fooled" seems even more hollow after Sandusky's interview.
To read the rest of the column, click here.

Saturday, November 12, 2011

Follow the Money

Here's the question. Is the Penn State scandal a sports law issue or simply a criminal matter? Consider this scenario. A young muscular graduate student in Biology wanders into a lab and sees an aging Assistant Professor raping a ten year old boy. Is there any doubt the perpetrator, if aware he had been seen, would immediately stop, the witness would intervene, the cops would be called, the Professor would be put away, and the University and its President would not be implicated in the least?

Why did that not occur here? Only one answer: the money generated by the plantation system known as the NCAA. For Penn State that is 100 million dollars, 75 million in football revenue and 25 million in assorted generic memorabilia like sweatshirts mostly attributed to the football program.

One telling fact that has not been given much attention. Look at the chain of command that failed miserably in this case. McQuery tells Paterno the coach. He tells Curley the Athletic Director. Who does he tell? Gary Schultz. His title? Vice President of Business and Finance. Among the many unanswered questions, who else knew? Typically the AD must report any potentially troubling incidents to the Conference Commissioner. Did Curley do that here? If not, why not?

UPDATE from Mike McCann: Below are some excellent comments responding to my Facebook post on Follow the Money:

Mark McKenna [Notre Dame Law Professor] 
 Is there any doubt the grad student would intervene? Absolutely there is. There has been way too much of the "this is because it was football." if anyone doesn't think a grad student dependent on a star faculty member for his future might have acted just like McQuery did, they are kidding themselves. And kidding oneself this way is dangerous because it allows all of us off the hook too easily by making this seem like a problem of some "other" culture.

Afi Johnson-Parris  [Attorney in Greensboro, North Carolina]
Is it too much to expect that he would have had even an ounce of courage to make a noise from the shadows, flicked the lights, called out "is anyone there?," something, anything to make it stop, anything but walking away. How do you just walk away? I agree, that has less to do with football than it does to do with courage. Funny, they're always saying that courage is what football is about.

Mark McKenna 
No, Afi, clearly it's not too much to ask. I wasn't in any way making an excuse for him. I was only pointing out that lots of people have made themselves feel better about this situation by pretending that this is just something about the culture of some institution rather than a sad, but universal, fact about human beings. They protect themselves and the institutions they believe in first. See also, the Catholic Church.

Michael McCann 
Not that this would have likely stopped what happened at Penn State, but I think a better model to college sports would be for there to be an independent branch of a school, sort of like an independent federal agency that's to some extent insulated from the executive branch, that regulates the athletic departments. It may moderate the "winning at all costs, everything else be damned" approach we see at too many schools. In terms of Mark and Afi's larger points, I agree that this story is about much more than why persons in a big time sports program respond so poorly to a fellow human in crisis. It also says, as Mark notes, that allegiance to institutions too often trumps allegiance to basic morality. Perhaps it also says that instead of these persons lacking humanity it's that humanity is less than what we expect or hope for.

Mark McKenna
I can't bring myself to "like" your last post, Mike, but the last sentence is right on.

Alan Milstein 
Mark, I just have to disagree. I do not think it is the norm for someone to not do anything when confronted by an old man raping a ten year old boy. Even if it is a superior, you would have to believe in an academic setting the grad student would believe the chairman of the department and everyone else would come down hard on the offender. Mainly because there is nothing to lose. That's the difference here. There was something to lose if they didn't cover it up. Millions of dollars. Incredibly, all they did was take away his locker room privileges, presumably so he could do his business elsewhere just not in the Penn State locker room.

Mark McKenna 
No, I wouldn't believe that people would act differently in another academic setting. People act selfishly whenever there is a lot for them to lose. There is a ton to lose when a graduate student reveals something about a supervisor they depend on (and grad students depend enormously on their advisors). There is a ton to lose when speaking up would force you to confront the failures of an institution you believe in. The statistics on abuse are staggering, and they couldn't be even remotely right if you were right that people generally speak up and stop things. They don't. I guarantee you that there has been undisclosed abuse in virtually any organization. This is not an apology - it's absolutely the wrong thing. But I think we delude ourselves by pretending it couldn't happen in our own back yard.

Jason Chung For me, the fact that people some people honestly say that they would have also walked away or merely alerted their superior when confronted with a similar situation is the greatest indictment of our culture.

Alan Milstein And your analogy to the Catholic Church doesn't help your point. The same forces are at work. But outside of such institutions like Penn State and the Catholic Church, where most of us reside, I have to believe most people would do the right thing and stop the brutalization. It's a ten year old boy, for God's sake. People by and large are good not bad, moral not immoral, caring not uncaring.

Mark McKenna I wish it were so, Alan. But I don't think it is. If you want to exclude all the institutions because the same forces are at work, then I think you have a long list to exclude. And that's my point.

Jason Chung
Mark, I understand your point - in today's society where everyone is looking to get ahead, there is sometimes tension between doing the right thing and doing what seems right for you personally. Sometimes, people do the latter instead of the former. Understood. However, I think that Alan's point is that the cult of big-money sports amplifies what we would consider "acceptable" in the realm of distasteful things one would tolerate. I'm not sure that I entirely agree with that assessment but I do acknowledge that sports, and particularly collegiate sports, has more than a fair whiff of an insular, old boys network feel to it where omerta and misguided "loyalty" is preferable to decency. I'd normally make an analogy or example trying to illustrate this point but, frankly, this entire issue is so beyond the pale, it makes me sick. This equalizer is this - At least, we, the fans, don't have to accept it. Stay vigilant, make noise, keep those responsible (and those who enabled) accountable.

Alan Milstein
This story is just beginning. The cover up has yet to be uncovered.