Thursday, June 30, 2011

New column: 11 Burning Questions as NBA lockout approaches

Here's my new SI column on the NBA labor crisis. While the weather is beautiful today and many folks might not be glued to their TVs, I'll be an in-studio analyst tonight on NBA TV at 6 pm and 11:30 pm eastern. I'm joining Kenny Smith to talk about NBA lockout. Hope you can watch.

Wednesday, June 29, 2011

Tuesday, June 28, 2011

More on NBA Age Restriction

Age restrictions, especially in the NBA and NFL, have been a big discussion point on this blog since it began 8 years ago.  Here's the New Republic's Nathan Pippenger's take on the NBA's age limit, which requires that players be 19 plus one year out of high school.

Monday, June 27, 2011

Can the NFL sanction players for misbehavior when the NFL has locked out those players?

John Glennon of The Tennessean asks Gary Roberts and me that question, and we seem to disagree.

Bud Selig Blocks the Dodgers' Proposed Television Deal with Fox

News broke last Monday that MLB Commissioner Bud Selig elected to exercise his "best interests of baseball" power by blocking the Los Angeles Dodgers' proposed television agreement with the Fox network. In short, Selig believes that the allegedly below market value deal would mortgage the future of the Dodgers franchise by diverting much needed funds from the team to satisfy Dodgers' owner Frank McCourt's personal debts (and help resolve his on-going divorce proceedings). Many commentators have speculated that Selig's decision will ultimately result in litigation between the Commissioner and McCourt.

For those trying to get up to speed on the quite complicated facts surrounding the Selig-McCourt dispute, Larry Behrendt of the It's About the Money, Stupid blog has posted an excellent summary of McCourt's ownership of the Dodgers.

Meanwhile, for analysis regarding the strength of McCourt's possible legal claims against Selig, be sure to check out Michael McCann's prior article for, as well as Sports Law Blog's previous coverage of the McCourt saga.

Update: The Dodgers announced this morning that they have formally filed for Chapter 11 bankruptcy protection.

Saturday, June 25, 2011

Do Minimum Age Rules "Work" in Sports?

I have been curious about this question for over a decade.

Minimum age laws/rules/policies are all around us. Think of voting, driving, drinking, and military service. The U.S. Constitution even has minimum age rules for certain political offices - 25 for the House of Representatives, 30 for the Senate, and 35 for Presidency. Minimum age rules are also plentiful in sports, of course.

Dan Stone and I recently published an economics-based analysis of minimum age rules in women's professional tennis in the Journal of Labor Research. The published version can be found here. The SSRN version can be found here. We provide some background in the paper's introduction (AR = age rule):

ARs are often controversial, and understanding their effects is clearly important to policy-makers. However, analyzing AR effects is generally a challenge empirically. In most nonsport contexts, the ARs have been in place for a substantial period of time. Women’s professional tennis provides a unique environment to analyze the effects of ARs on labor market outcomes, as the major change in the sports’ age rule was made fairly recently, in 1995. This allows a meaningful comparison to be made between the groups of players that had to comply with the restriction and those that did not. Moreover, consistent with the observation by Rosen and Sanderson (2001) regarding sports labor market research in general, the availability of player-specific records and the relatively static nature of other rules of the game over the past few decades make women’s tennis an excellent context for such an investigation.

We use regression analysis (OLS and probit) to test both the short-run and long-run effects of the age eligibility rule. With our data set comprised of year-level ordinal rankings, we were also able to use panel data methods, which allowed us to control for year and age effects more precisely. We tested whether players subject to the age rule (adopted in 1995) had longer and/or stronger careers. Our study found null results. We concluded as follows:

We find very limited evidence that the AR has had any systematic beneficial effect on players’ career longevity or success. Our results suggest that sport governing bodies should (re-)evaluate the efficacy and necessity of “one size fits all” age eligibility rules.

I have been working on a couple related studies (using different methods) pertaining to NBA basketball and women's gymnastics this summer. Given the "before and after" quality of minimum age rules and a plethora of metrics to track labor market outcomes, sports is a near-ideal environment to test whether such age eligibility rules "work."

Friday, June 24, 2011

Big Day for NBA today

The NBA and NBPA will be meeting today to see if they can get a deal done on a new CBA before it expires at the end of June 30.  For related coverage, I am interviewed on NBA TV to provide legal analysis and Gabe Feldman has a piece on Huffington Post on this topic. 

Thursday, June 23, 2011

Precocity in the NBA

The NBA's age eligibility rule will be one of many issues that the league and union negotiate in the coming weeks. A large number of published papers have looked at the legality of the NBA age rule. Examples are here, here, and here.

Research has also touched on the efficacy of the minimum age rule. Mike McCann's oft-cited article looked at the issue from an economic perspective, with a particular emphasis on opportunity costs. Earlier this week, Peter Newman and Dean Oliver of ESPN blogged about whether age is a factor in the NBA draft. Newman and Oliver concluded, in relevant part, that: "...the trend is that a younger, highly drafted player will have more success than an older one." Such conclusion is consistent with my findings. I ran an OLS regression with age as my variable of interest and included a number of control variables found elsewhere in the literature. Across each dependent variable, age was a statistically significant predictor of on-court success. The working paper's conclusion is as follows:

Precocity and basketball are intertwined. If the current NBA age rule was in place prior to 2005, some of the best players in the league (Kevin Garnett, Kobe Bryant, LeBron James and Dwight Howard) during the past 15 years would have been initially ineligible. We find evidence that the younger a player is when he first enters the NBA labor pool the more successful he is likely to be. There is no systematic evidence of any success among “late bloomers.” Our findings cast doubt on the long-term on-court efficacy of the NBA’s age rule, although the recent imposition of the league’s age policy, coupled with certain off-court considerations that may be relevant, caution against any conclusive determination regarding the rule’s effectiveness (and necessity). Likewise, limitations stemming from the censored data argue against a more definitive position on such issue.

Wednesday, June 22, 2011

Mississippi State University and Its Baseball Coach Sued By Former Player

Last month, former Mississippi State University baseball player Forrest Moore filed a lawsuit in Mississippi state court against the school, its head baseball coach John Cohen (pictured), and assistant athletic director Mike Nemeth. Moore was a scholarship pitcher for the Bulldogs during the 2007-08 and 2008-09 seasons.

In the complaint, which is available here, Moore levies a series of allegations against Cohen, Nemeth, and the university. Specifically, Moore alleges that upon taking over MSU's baseball program in 2008, Cohen required the team to work out for more than maximum number of hours permitted by the NCAA. In order to avoid NCAA sanction, Moore asserts that Cohen forced players to sign uncompleted time sheets, without allowing the players to document the actual number of hours they were being required to practice. During these practice sessions, Moore alleges that Cohen forced him to throw more pitches than he should have, causing Moore to develop forearm tendinitis. Moore asserts that Cohen continued to overwork him during the season, ultimately resulting in a partial tear to the ulnar collateral ligament (UCL) in Moore's pitching elbow. Moore requested a medical redshirt for the 2009-10 season in order to recover from the necessary surgery, but alleges that Cohen instead informed him that his scholarship was not being renewed for that school year.

Despite all of Moore's allegations about the origins of his arm troubles, his complaint ultimately does not seek to hold Cohen or the University responsible for his injury. Instead, Moore's legal claims focus on the non-renewal of his scholarship. Specifically, Moore asserts a breach of contract claim against Mississippi State, alleging that the university did not follow proper NCAA procedure by failing to provide him with the requisite written notice or hearing required under NCAA rules before depriving him of his scholarship. Article of the NCAA Division I Manual states:
The institution’s regular financial aid authority shall notify the student-athlete in writing of the opportunity for a hearing when institutional financial aid based in any degree on athletics ability is to be reduced or canceled during the period of the award, or is reduced or not renewed for the following academic year.
Moore asserts that his scholarship constituted a contract with the university governed by NCAA rules, and that by failing to follow the proper procedure when revoking the scholarship, MSU breached the contract. But for this breach, Moore contends that he would have been permitted to retain his scholarship, rehabilitate his arm, and ultimately be "properly evaluated" by major league scouts.

Interestingly, Moore's complaint fails to mention the fact that he was nevertheless drafted in the 38th round of the 2010 draft by the Florida Marlins despite sitting out the 2009-10 season (Moore does not appear to have played yet in a professional game). Moore, a former high school All-American, had previously been drafted by the Detroit Tigers in the 32nd round of the 2007 draft, but elected to enroll at MSU.

As for Cohen and Nemeth, Moore asserts that they intentionally interfered with his contractual relations with the university, and conspired to deny Moore his scholarship for the 2009-10 school year. Cohen denied almost all of Moore's allegations in a motion to dismiss filed last week, including the assertion that Moore's scholarship was not renewed. Cohen also claims immunity under the Mississippi Tort Claims Act.

It does not appear that Mississippi State has filed a response to the complaint yet, but the school has acknowledged that it is investigating Moore's allegations regarding Cohen's potential NCAA violations.

Tuesday, June 21, 2011

Kent State University Sues Its Former Men's Basketball Coach

Last month, various media outlets reported that Kent State University had filed a lawsuit in Ohio state court against both its former head men's basketball coach Geno Ford and Bradley University, after Ford left Kent State in March to take the same position at Bradley. The suit alleges that Ford breached his contract with Kent State by accepting the Bradley position without the university's consent, and seeks $1.2 million from Ford pursuant to the liquidated damages clause in his contract (i.e., his prior salary of $300,000/year for each of the four years remaining on his contract). In addition, Kent State asserted a $25,000 tortious interference with contract claim against Bradley, alleging that the school wrongfully induced Ford to breach his contract with Kent State.

Earlier this month, Coach Ford and Bradley each filed responses to Kent State's complaint. Ford denied the allegations and asserted 14 affirmative defenses, perhaps most notably arguing that the liquidated damages provision in his contract was unconscionable. Meanwhile, Bradley asserted that Kent State unconditionally consented to its interviewing Ford for the coaching position, thereby waiving any right to a contractual interference claim.

Lawsuits by jilted universities seeking to enforce liquidated damages provisions against former coaches are not uncommon, and typically settle out of court. For instance, one of the most notable recent examples was the $4 million settlement West Virginia University reached with its former head football coach Rich Rodriguez in 2008.

However, if the parties cannot reach a settlement in this case, Kent State has a favorable judicial precedent it can rely on in support of its claim against Ford. Specifically, in Vanderbilt University v. DiNardo, the Sixth Circuit Court of Appeals ruled that the liquidated damages clause in former Vanderbilt head football coach Gerry DiNardo's contract was enforceable, after DiNardo left Vanderbilt to become the head coach at Louisiana State University. Like Ford, DiNardo had argued that the provision was unconscionable, insofar as it required him to pay Vanderbilt his net salary for each remaining year under the contract. The Sixth Circuit rejected DiNardo's argument, holding that the provision was not an unlawful penalty given the difficulty in measuring Vanderbilt's actual damages from DiNardo's breach.

In light of the DiNardo precedent, Kent State's attempt to enforce the liquidated damages in Ford's contract does not appear to be unreasonable. Accordingly, I suspect that Coach Ford will eventually agree to settle the case out of court.

Monday, June 20, 2011

An Update on the American Needle Litigation

It has been a little over a year since the United States Supreme Court issued its decision in American Needle, Inc. v. National Football League. I thought I'd check to see how the case was progressing upon remand to the district court.

Perhaps not surprisingly, little has transpired since the case was returned to the Northern District of Illinois. The most significant development to date was the reassignment of the case to Judge Sharon Johnson Coleman in December, as the original judge presiding over the litigation, Senior Judge James B. Moran, unfortunately passed away during the pendency of the Supreme Court appeal. Judge Coleman let the case sit until this past April, and since that time the parties have been preparing to restart the discovery process. Discovery is currently scheduled to run until Dec. 31, 2012.

One item of note comes from the parties' recent joint status report, which stated that there have been no meaningful settlement discussions to date. Therefore, it appears the American Needle litigation is unlikely to be resolved anytime soon.

For an analysis of the likely outcome of the remand of American Needle, be sure to read Marc Edelman's forthcoming law review article, Upon Further Review: Will the NFL's Trademark Licensing Practices Survive Full Antitrust Scrutiny? The Remand of American Needle v. National Football League.

Meanwhile, for those who just can't get enough analysis of the Supreme Court's decision in American Needle, check out my forthcoming article, American Needle and the Future of the Single Entity Defense Under Section One of the Sherman Act. In addition to considering the effect of the decision on the single entity precedent generally, the article also discusses its implications for the professional sports industry. Specifically, although I take issue with some of the Court's discussion of the single entity status of the NFL, and argue that the opinion does not necessarily signal the death of the single entity defense in all professional sports antitrust cases, I ultimately conclude that the decision is unlikely to have a significant effect on the industry given that it largely reaffirmed the status quo.

Sunday, June 19, 2011

Len Bias and counterfactual history

Today marks the 25th anniversary of the death of former University of Maryland basketball star Len Bias from a cocaine-induced heart attack. For sports fans of my age group, this is one of those significant where-were-you-when moments (I was at home studying for my last high-school finals). It was the subject of one of the best of ESPN's 30-for-30 documentaries and Bill Simmons always describes it as the singular event that changed the course of the Boston Celtics and all of the NBA in the late '80s and '90s. It was a major catalyst for Congress creating the crack/powder disparity that still plagues federal sentencing law

The assumption always is that Bias would have been an NBA superstar. He was the immediate heir to Larry Bird and would have kept the Boston Celtics (who had just won the NBA title with arguably the best team in NBA history) at the top of the league. And he would have been the truly worthy and equal rival to Michael Jordan in the 1990s. But I always have wondered whether that assumption is correct

We know (or really, really strongly suspect) two things: 1) June 19 likely was not the first time Bias had used cocaine and 2) Dozens of players drafted in the mid-'80s had problems with cocaine, with several being suspended or kicked out of the league for cocaine use, including some potential superstars. So is it equally reasonable to create a counterfactual in which Bias' career is similarly undone (or at least fails to live up to its fullest potential) by the league's pervasive drug culture of the time? Especially given that Bias' death itself was one of the major wake-up calls against that culture, the event that told leagues, teams, players, and fans in a more explicit and dramatic way that cocaine was something to worry about.

So how about a counterfactual in which Bias does not die, but the sports world never receives the jolt it needs to take cocaine seriously (at least until some other high-profile figure dies)? And then how does Bias' career actually play out?

Saturday, June 18, 2011

Bullish on BCS?: Stripping USC and Potential Antitrust Implications for the BCS

As expected, the BCS chose to vacate USC’s 2004 national title last Monday. The decision was merely a formality because the BCS was only waiting for the NCAA to deny USC’s final appeal. From a legal perspective, however, the interesting consideration is why the BCS even cares about the NCAA’s ruling in the first place.

The BCS, which has been debated vigorously on this blog, is a virtual legal fiction with no organizational contracts at all. It has no formal affiliation with the NCAA whatsoever. Yet, BCS executive director Bill Hancock said in reference to the BCS championship games, “One of the best ways of ensuring they remain so is for us to foster full compliance with NCAA rules.” Presumably, there is nothing that mandates the BCS to take away a title for NCAA rules violations. In fact, the Associated Press did not to strip USC of its title. Theoretically, the BCS could operate completely outside the scope of NCAA regulations. Vacating USC’s appearances simply maintained the integrity of the system. With a potential antitrust suit lurking, the obvious co-dependence between the BCS and the NCAA could certainly play a prominent role in the case.

As attenuated as it might seem, this action could be potential ammunition for BCS opponents to suggest that the BCS is in fact not the least restrictive alternative system under rule of reason analysis of Section One of the Sherman Act. Hancock’s quotes seem to manifest an uneasiness that the BCS could in fact lose its right to stage the games should it fail to comply with NCAA rules. Perhaps Hancock realizes that the system is now in a precarious position and that viable less restrictive alternatives exist (e.g. the old bowl system, an NCAA mandated playoff, or another independently run postseason tournament). It could be that the BCS stripped USC of its title in order appease the NCAA and preserve its restrictive system.

Alternatively, the BCS may try to mitigate its culpability by portraying the NCAA as an equally complicit co-conspirator. The fact that the BCS is concerned with running its system in accordance with the NCAA suggests the presence of an unspoken agreement between the parties to maintain the current system. If the BCS did not require NCAA compliance, the NCAA would certainly step in and create its own postseason product. It seems, on the surface at least, that the NCAA has a “don’t ask don’t tell” type of policy in regard to the BCS, so long as it requires its member schools to remain in compliance. Despite NCAA President Mark Emmert’s letter to Assistant Attorney General Christine Varney, the NCAA may not be able to wash its hands of responsibility should a suit be filed.

Ultimately, the USC ruling may have little bearing on any potential suit, and certainly both sides will advance stronger arguments than this, but it certainly raises questions as to the veritable relationship between the BCS and the NCAA. Some conspiracy theorists argue that the NCAA actually plays a role in BCS operations? If so, what is that role? Will it matter if the Government files suit?

Hat tip to law clerk, Brian Konkel, for his work on this piece.

Friday, June 17, 2011

NBA TV Legal Analysis

I'll be NBA TV tonight at around 8:00 p.m. – I’ll be joining David Aldridge in a discussion on NBA labor issues, and I'll be on throughout the impending lockout to provide legal analysis. Hope you can watch.

Update: here's a link to the discussion. I'll be in NYC in late June to cover the story on location.

Monday, June 13, 2011

Klosterman on irrational rules

Chuck Klosterman, writing at Grantland (Bill Simmons' new site), gives a brief take at his favorite rule in all of sports, which he also argues is absurd and irrational--the NBA rule that a team calling a timeout late in the game gets the ball at half court.

I am not sure the rule is irrational. It seems like a deliberate effort to give a trailing team a chance (Klosterman likens it to affirmative action), thus generating excitement. And Klosterman is convinced it works. Nothing irrational about that.

Thursday, June 9, 2011

See, umpires are like judges

And this is kind of like calling the judge in the middle of a depostion to get a ruling.

Tuesday, June 7, 2011

New Sports Law Scholarship

Recently published scholarship includes:
Alejandro Bautista, Comment, College football’s serial murderer: sickle cell trait, 21 MARQUETTE SPORTS LAW REVIEW 403 (2010)

Elizabeth Blakely, Comment, Dewey Ranch and the role of the bankruptcy court in decisions relating to the permissible control of the national sports leagues over individual franchise owners, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 105 (2011)

Erin E. Buzuvis, Transgender student-athletes and sex-segregated sport: developing policies of inclusion for intercollegiate and interscholastic athletics, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2011)

Julia Brighton, Note, The NCAA and the right of publicity: how the O’Bannon/Keller case may finally level the playing field, 33 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 275 (2011)

Andrew B. Carrabis, Strange bedfellows: how the NCAA and EA sports may have violated antitrust and right of publicity laws to make a profit at the exploitation of intercollegiate amateurism, 15 BARRY LAW REVIEW 17 (2010)

Scott R. Chandler, Whose right is it anyway?: how recent cases and controversies have blurred the lines between First Amendment protection and an athlete’s right of publicity, 21 MARQUETTE SPORTS LAW REVIEW 315 (2010)

Emily J. Cooper, Note, Gender testing in athletic competitions—human rights violations: why Michael Phelps is praised and Caster Semenya is chastised, 14 JOURNAL OF GENDER RACE & JUSTICE 233 (2010)

Jeremy H. Danney, Comment, Sacking CEQA: how NFL stadium developers may have tackled the California Environmental Quality Act, 19 PENN STATE ENVIRONMENTAL LAW REVIEW 131 (2011)

Carolyn Davis, Note, Leave it on the field: too expansive approach to evaluating Title IX compliance in Biediger v. Quinnipiac University, 76 BROOKLYN LAW REVIEW 265 (2010)

Chris Deubert, What’s a “clean” agent to do? The case for a cause of action against a player’s association, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

Joseph F. Dorfler, Casenote, America’s Cup in America’s court: Golden Gate Yacht Club v. Société Nautique De Genève, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 267 (2011)

Adam Epstein, An Exploration of Interesting Clauses in Sports, 21 JOURNAL OF THE LEGAL ASPECTS OF SPORT 1 (2011)

David Feingold, Who takes the heat? Criminal liability for heat-related deaths in high school athletics, 17 CARDOZO JOURNAL OF LAW & GENDER 359 (2011)

Laurie C. Frey, Comment, They aren’t who we thought they were: the importance of genetic testing in Major League Baseball to prevent the falsification of players’ ages, 21 MARQUETTE SPORTS LAW REVIEW 425 (2010)

Jorge E. Leal Garrett & Bryan A. Green, Considerations for professional sports teams contemplating going public, 31 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW 69 (2010)

Anthony G. Galasso, Jr., Note, Betting against the House (and Senate): the case for legal, state-sponsored sports wagering in a post-PASPA world, 99 KENTUCKY LAW JOURNAL 163 (2010-2011)

Jeremy Goff, Book note, Reviewing Eileen McDonagh and Laura Papano, Playing With the Boys: Why Separate is Not Equal in Sports, 21 MARQUETTE SPORTS LAW REVIEW 449 (2010)

Martin J. Greenberg & Bryan M. Ward, Non-relocation agreements in Major League Baseball: comparison, analysis, and best practice clauses, 21 MARQUETTE SPORTS LAW REVIEW 7-137 (2010).

Thomas A. Hamilton, The long hard fall from Mount Olympus: the 2002 Salt Lake City Olympic Games bribery scandal, 21 MARQUETTE SPORTS LAW REVIEW 219 (2010)

Alan J. Hart, Comment, Barry Bonds and the Baseball Hall of Fame: is it in the “best interest of baseball”?, 40 SOUTHWESTERN LAW REVIEW 175 (2010)

Matthew J. Jakobsze, Comment, Kicking “single-entity” to the sidelines: reevaluating the competitive reality of Major League Soccer after American Needle and the 2010 Collective Bargaining Agreement, 31 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW 131 (2010)

Noel Johnson, Tinker takes the field: do student athletes shed their constitutional rights at the locker room gate?, 21 MARQUETTE SPORTS LAW REVIEW 293 (2010)

Richard T. Karcher, Rethinking damages for lost earning capacity in a professional sports career: how to translate today’s athletic potential into tomorrow’s dollars, 14 CHAPMAN LAW REVIEW 75 (2010)

Kristen E. Knauf, Shades of gray: the functionality doctrine and why trademark protection should not be extended to university color schemes, 21 MARQUETTE SPORTS LAW REVIEW 361 (2010)

Dionne L. Koller, Not just one of the boys: a post-feminist critique of Title IX’s vision for gender equity in sports, 43 CONNECTICUT LAW REVIEW 401 (2010)

Jaime Koziol, Note, Touchdown for the union: why the NFL needs an instant replay in Williams v. NFL, 9 DEPAUL BUSINESS & COMMERCIAL LAW JOURNAL 137 (2010)

Meredith Lambert, Comment, The competing justices of clean sport: strengthening the integrity of international athletics while affording a fair process for the individual athlete under the world anti-doping program, 23 TEMPLE INTERNATIONAL & COMPARATIVE LAW JOURNAL 409 (2009)

Andrew Medeiros, Book note, Reviewing Jim Squires, Headless Horsemen: A Tale of Chemical Colts, Subprime Sales Agents, and the Last Kentucky Derby on Steroids, 21 MARQUETTE SPORTS LAW REVIEW 445 (2010)

David Marck, Comment, Necessary roughness?: an argument for the assignment of criminal liability in cases of student-athlete sustained heat-related deaths, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 177 (2011)

Steven Masur, Collective rights licensing for Internet downloads and streams: would it properly compensate rights holders?, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 39 (2011)

Lauren McCoy, 140 characters or less: maintaining privacy and publicity in the age of social networking, 21 MARQUETTE SPORTS LAW REVIEW 203 (2010)

W.S. Miller, Changing playing fields: the sports attorney’s obligation to learn green, 21 MARQUETTE SPORTS LAW REVIEW 139 (2010)

Mitchell Nathanson, Truly sovereign at last: C.B.C. Distribution v. MLB AM and the redefinition of the concept of baseball, 89 OREGON LAW REVIEW 581 (2010)
Alex Porteshawver, Under review: stadium construction and state environmental policy acts, 21 MARQUETTE SPORTS LAW REVIEW 339 (2010)

Jo Potuto & Jerry R. Parkinson, If it ain’t broke, don’t fix it: an examination of the NCAA Division I Infractions Committee’s composition and decision-making process, 89 NEBRASKA LAW REVIEW 437 (2011)

Joshua A. Reece, Note, Throwing the red flag on the commissioner: how independent arbitrators can fit into the NFL’s off-field discipline procedures under the NFL collective bargaining agreement, 45 VALPARAISO UNIVERSITY LAW REVIEW 359 (2010)

Kristi L. Schoepfer & Mark Dodds, Internships in sport management curriculum: should legal implications of experiential learning result in the elimination of the sport management internship?, 21 MARQUETTE SPORTS LAW REVIEW 183 (2010)

John K. Tokarz, Comment, Involuntary servants: the NCAA’s abridgement of student-athletes’ economic rights in perpetuity violates the Thirteenth Amendment, 2010 WISCONSIN LAW REVIEW 1501

Brittany Van Roo, One trilogy that should go without a sequel: why the baseball antitrust exemption should be repealed, 21 MARQUETTE SPORTS LAW REVIEW 381 (2010)

Benjamin S. Weisfelner, Comment, Reverse slam dunk: making the case that the National Basketball Association’s minimum age requirement violates state discrimination laws, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 203 (2011)

Marie-France Wilson, Young athletes at risk: preventing and managing consequences of sports concussions in young athletes and the related legal issues, 21 MARQUETTE SPORTS LAW REVIEW 241 (2010)

Glenn M. Wong, & Chris Deubert, National Basketball Association general managers: an analysis of the responsibilities, qualifications and characteristics, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 213 (2011)

Laura A. Zaccone, Note, Policing the policing of intersex bodies: softening the lines in Title IX athletic programs, 76 BROOKLYN LAW REVIEW 385 (2010)

Monday, June 6, 2011

Roundtable on OSU scandal

USA Today columnist Christine Brennan and I were the guests yesterday on a local Toledo ABC Sunday talkshow, Roundtable with Jeff Smith. The topic for the day was the ongoing Ohio State University football scandal, with particular attention to the jaw-dropping SI story. For Howard's comments from last week, see this post.

Friday, June 3, 2011

Another take on the NFL oral argument

My PrawfsBlawg (and former SLU) colleague Matt Bodie attended today's oral argument in Brady v. NFL (an advantage to living in St. Louis) and offers his thoughts here.

New Sports Illustrated Column: What Did We Learn from Today's Oral Arguments?

I have a new column for SI on what we learned from today's oral arguments by Paul Clement (for the NFL) and Ted Olson (for the players). 

Thursday, June 2, 2011

New Sports Illustrated Column: A Preview of Tomorrow's Big Court Hearing for the NFL and its Players

Here's an excerpt of my new SI column on tomorrow's hearing before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit:

* * *
Expect oral arguments on the Norris-LaGuardia Act to dwell on whether certain words contained in the Act should be read literally or expansively. The arguments will also offer conflicting accounts of how Congress, which passed the Act during the height of the Great Depression in 1932 and undoubtedly without a second's thought to its potential application to disputes between billionaire team owners and millionaire players, intended the Act to be used.

The two sides will also contest whether the NFLPA's decertification was a sham. If, as the players contend, the NFLPA no longer represents them, and if the sides are no longer bargaining in good faith, then the federal labor exemption, which insulates collectively bargained rules from antitrust review, would no longer apply. Although the NLRB, and not the three-judge panel, will determine whether the NFLPA's decertification was legitimate or a sham, the panel likely will link its ultimate decision to its views on that subject.
* * *

To read the rest, click here. For an interview with Rex Snider of Baltimore WNST, click here.

Catching up with Links

* Marquette Law and University of Virginia School of Law sports law professor Gordon Hylton, who is also a distinguished legal historian, has written an outstanding essay titled Walter Kowalski: A Forgotten Man in the Legal History of Sport. Kowalski was a minor league player whose 1951 lawsuit against Organized Baseball (an alliance that included the big leagues and most of the minor leagues) and the antitrust exemption for baseball reached the United States Supreme Court along with the action filed by fellow minor-leaguer George Toolson in 1953. Gordon's essay discusses Kowalski's career along with the details and significance of his legal challenge. A must read.

* USA Today's Michael McCarthy has an excellent preview of the upcoming NBA labor crisis.

* The Super Bowl ticket lawsuit continues, but as Eric Aasen of the Dallas Morning News writes, don't expect it to go anywhere.

* Both Celtics Blog and Celtics Life write about Celtics backup center Nenad Kristic, who will become a free agent on July 1, thinking about signing with a Russian team before other NBA players turn to the international market should the NBA lockout out the players.  Looks like Kristic (who is from Serbia) might be trying to beat the lockout labor market -- a market that could see NBA players competing for a finite number of slots for American players in international basketball leagues.

* Dan Fitzgerald of the excellent Connecticut Sports Law Blog writes about the possibility of Hartford, like Winnipeg (which will get the Atlanta Thrashers after losing the Jets several years ago), getting another NHL team.  I hope Hartford gets another shot - it would be good for New England hockey and restore Hartford's hockey rivalry with the Rangers, Islanders and Bruins.

* Lews and Clark Law School professor Tung Yin has a provocative piece titled A Modest Proposal for Dealing with Corruption in College Sports.  Here's an excerpt:
Here’s my proposal for addressing those two points completely:
  1. Schools can pay their student-athletes whatever they want, but they must report the wages transparently, with no under-the-table payments. 
  2. In order to normalize the impact of high wage vs. low wage teams, as well as to take into account the “student” side of student-athletes, all game scores will be adjusted by the Wage Differential Ratio and the SAT Score Differential Ratio.
      The Wage Differential Ratio
      We will consider the minimum wage paid to a student-athlete to be $10/hour, even if the player in question actually receives less than that.
      During every game, there will be a time-weighted average salary for each team. The more minutes that a given player is in the game, the more his salary counts towards the team’s average salary. We then take a ratio of the two teams’ average salary, and adjust the game score accordingly.
      For example, say that at half-time, rich USC has a time-weighted average salary of $150/hour, while poor UCLA has a time-weighted average salary of $25/hour. The ratio is 6:1, so we would multiply UCLA’s score by 6 for the adjusted half-time score.
      To read the rest of Professor Yin's article, click here.

      Wednesday, June 1, 2011

      Thoughts on The Ohio State University

      Some random thoughts on Ohio State (even if, as a Northwestern fan, I am enjoying a wee bit of schadenfreude):

      1) I read Zach Lowe's piece linked by Mike connecting this scandal to the NBA age limit, but I do not buy the connection.  Whatever the merits of allowing more players to go pro right away and therefore incentivizing more players to do so (either straight to the big leagues or into some professional minor league system), is not going to change the fact that improper benefits are going to be spread around to the players that do go to college. Especially since, as Lowe points out, only the "tiniest subset" of players are able to go straight to the NBA--and an even tinier subset would be able to go straight to the NFL. There are always going to be star players who go to college or players who, in college, become stars. And as long as college football and basketball continue to be popular as sports, boosters and others will continue to be on the scene and players will still get cars, tattoos, cash, etc. In fact, we still would have the current case. Other than Aaron Terrelle Pryor, would any of the other five suspended players have been able to skip college? Probably not. For that matter, were any of the other five stars?

      The issue is not, as Lowe argues, that we are "forc[ing] this pseudo-amateurism on players who don’t want it." A lot of players will still choose college, especially if the choice is between college and NBDL or overseas. But pseudo-amateurism remains and that is the issue across the board. So might this be the final straw, the one that makes people push to change a broken system?

      2) Ohio State is in some trouble. Their narrative right now is that this is a problem with a few players and the coach and by suspending the players accepting (and perhaps even forcing) Tressel's resignation, the problem has been resolved. But there is an institutional component to this. OSU conducted an investigation that found only six players had received benefits for merchandise, a conclusion contradicted by the Sports Illustrated story, which said as many as 28 players had received similar benefits over the past nine years. This might suggest that the internal investigation was, at best, poorly done, and, at worst, a cover-up. Plus attention is now turning towards other benefits given to players, most notably access to cars. This suggests the issue of players receiving benefits goes much deeper. At what point does this reach the institution--namely AD Gene Smith and President E. Gordon Gee.

      3) It is ironic that Gee should be at the heart of a mess like this. He has an enjoyed a great deal of success as an administrator at several universities, including Colorado, Brown, Vanderbilt, and Ohio State twice. He is perhaps best known for eliminating the independent athletics department and the position of athletics director at Vanderbilt, bringing intercollegiate athletics within the Division of Student Life, a move he pushed precisely to ensure greater institutional control over sports teams and the elimination of what he called "semi-autonomous fiefdoms." Controversial at the time, the move has proven to be very successful for Vanderbilt.

      Yet when Tressel admitted to lying about his knowledge of the benefits and was suspended in March, Gee responded to the question of whether he had considered firing Tressel by saying "Are you kidding? I'm just hopeful the coach doesn't dismiss me." That reflects a very different--and unfortunate--attitude towards college sports, but one that recognized the realities of OSU, as opposed to Vanderbilt.

      If Gee loses his job over this (or even if he doesn't), it will be unfortunate that someone who tried something radical and creative to make the system work, and who recognized that the system needed some creative changes, has been undermined by everything that is wrong with the system.