Wednesday, August 29, 2012

Union Solidarity?

The gauntlet has been thrown down and things are about to get interesting. As the NFL continues to negotiate with the NFLRA over terms of a new CBA for the league’s officials, replacement officials work pre-season games. In a bold move yesterday, the NFLPA pulled out the “health and safety” card in support of the NFLRA.

In a pointed statement yesterday, NFLPA executive director DeMaurice Smith stated:
“In America it is the employer’s obligation to provide as safe a working environment as possible. We believe that if the National Football League fails in that obligation we reserve the right to seek any relief that we believe is appropriate. The NFL has chosen to prevent the very officials that they have trained, championed and cultivated for decades to be on the field to protect players and — by their own admission — further our goal of enhanced safety.”
Let’s be clear, player safety is the priority for the NFLPA. Above salary, compensation, free agency, two-a-day practices, an 18 game schedule, and anything else you can imagine. According to reports the gap is approximately $6,000 per game to get the best football officials in the world back onto the field. The NFL’s annual revenues? Somewhere in the neighborhood of $9.3 billion PER YEAR.

A few thoughts:

1. Great to see solidarity across unions. Always wondered why the various professional sports league unions (MLBPA, NBPA, NFLPA, & NHLPA) didn’t cooperate more than they do.

2. If you don’t think the NFLPA is serious about both a) protecting their players; and b) their membership’s unhappiness with the replacement officials you’re not paying attention.

3. Lurking in the shadows of this labor impasse is the dark cloud hanging over the league—the concussion lawsuit. Unequivocally, this lawsuit threatens the financial stability of the league. Do you think that $6,000 per game is too much for the NFL to show the league’s players that safety is a concern?

For fans of the NFL, the next several days are going to be interesting.

Tuesday, August 28, 2012

American Indian Mascot Sensitivity at the University of Utah

The Sports Law Blog has tackled the issue of American Indian mascots many times over the past few years. Last week, Dr. Chris Hill, the Athletics Director at the University of Utah (nicknamed the "Utes" after the local Ute Indian tribe), posted a youtube "chat" where he asked Ute fans to become more "sensitive" to issues that might offend American Indians in Utah and across the country when they attend athletic contests (see below). Specifically, Dr. Hill asks fans to be aware that painting their faces, wearing headdresses, and bringing faux tomahawks to games likely offend sacred and religious traditions of Native Americans around the country. He impliedly asked Ute fans to leave the feathers, headdresses, face paint and tomahawk chops at home.

Dr. Hill alluded to the Ute logo, the feather and drumset, as appropriate, likely based on the approval of the use of the name and logo by the Ute tribal counsel, and the NCAA policy, that while generally forbidding the use of American Indian nicknames and mascots, allows an exception for University use of such nicknames and mascots if the local tribe approves. Because of this exception, Florida State continues as the Seminoles and Utah continues as the Utes, while the University of Illinois and the University of North Dakota are no longer able to use Native American imagery as their logos or mascots.

While laudable, Dr. Hill seems to miss the broader point that American Indian imagery and caricatures remain significantly injurious to some American Indian citizens (though some polls indicate that Native Americans are split on the issue of mascot offensiveness). If offensive to some, then why continue the use of the mascot name and imagery? Certainly, University of Utah fans can become more sensitive by educating themselves and leaving American Indian regalia at home on game day. Dr. Hill himself mentioned educating himself on the sacred and spiritual in American Indian culture, which no doubt prompted the message to fans. Still, tradition and culture should not support the continued use of names and mascots that offend.

Monday, August 27, 2012

Legal Issues in Fantasy Sports: Yahoo! More Risk Averse than CBS Sports

As I had predicted last year in my law review article, A Short Treatise on Fantasy Sports and the Law, it was only a matter of time before another public company joined CBS Sports in the cash-prize fantasy football marketplace. As anticipated, Yahoo! has recently announced its launch of Yahoo! Pro Leagues, which are leagues offering up to $500 in cash prizes to fantasy football winners.

Nevertheless, in launching its pay-to-win fantasy football game, Yahoo! seems to be a tad more risk averse than CBS Sports. For example, even though the CBSSports Terms of Service only prevent the paying of prizes to winners in six states (Arizona, Iowa, Louisiana, Montana, Vermont and Washington), the Yahoo! Sports Terms of Service disallows prizes in two more -- Maryland and Illinois.

Yahoo!'s decision not to compete against CBS Sports in either Maryland or Illinois is likely based on the uncertainties in both states' gaming laws. In Maryland, the state governor recently signed into law a bill that exempts certain online fantasy sports games from its gambling prohibitions, and instead grants the state Comptroller the right to regulate the industry. However, to date, the state Comptroller has not issued any regulations related to fantasy sports. Presumably, CBS Sports believes this puts them in the clear to move forward with offering prize-based games.  Meanwhile, Yahoo! is not willing to take that risk. 

Similarly, in Illinois, one section of the state’s gambling law specifies that a person commits a gambling offense if he “[k]nowingly establishes, maintains, or operates an internet site that permits a person to play a game of chance or skill for money or a thing of value.” Yet, another section of that same statute exempts from the law “any bona fide contest for the determination of skill, speed, strength,or endurance.” CBS Sports must be confident that its fantasy football contest is a "bona fide contest for the determination of skill."  Meanwhile, Yahoo! might be less sure, perhaps based on a 1983 Illinois decision that found poker did not fall into this exemption.

Most interesting to me, however, is that even though Yahoo has taken a more risk averse approach than CBS Sports, it still does not outlaw its game in a number of states where some risk may still exist. For example, Yahoo! is willing to pay cash prizes to contestants in Kansas, even though last fall the Kansas Racing and Gaming Commission had language on its website indicating that pay-to-win fantasy sports games were illegal. In addition, Yahoo! is willing to operate in at least one state where a former attorney general has issued an advisory opinion indicating that fantasy sports games are illegal.

Sunday, August 26, 2012

Alan Milstein on Al Jazeera English to discuss Lance Armstrong

Terrific discussion on Al Jazeera English with Alan Milstein, Dave Zirin and Grant Wahl. They have a lively, interesting debate on Lance Armstrong. Here's the video:

To read an article on the Milstein/Zirin/Wahl discussion, click here.

Friday, August 24, 2012

My thoughts on Lance Armstrong for CNN International

2012: The Summer of Sports Law

As I thought about this past (and it is past because Boston College's MBA program has already started) summer, I realized the huge impact that "sports law" had on the major events. I wrote the following article which appears on the Huffington Post.

It begins....

Each year I welcome students in my Sports Law course at Boston College by declaring: “To truly understand sports, you must have a basic understanding of the law….let’s begin.” The cycle is straight-forward: the demand for sports on television grows which in turn generates revenue; the business operations to support this growth become more complex, resulting in the law’s ever-increasing role in the events and stories of the industry. The summer of 2012 has poignantly proved my point: virtually every major story, from the Olympics, to college sports, to professional leagues has been shaped by legal principles studied in the first year of law school—civil procedure, constitutional law, contracts, criminal law, and business law.

Let me know what you think....

Thursday, August 23, 2012

Lance Armstrong = Pete Rose?

U.S. District Judge Sam Sparks on Monday dismissed Lance Armstrong's lawsuit against USADA, concluding that: 1) while USADA processes were questionable, they accorded with due process (although the court skipped the prior question of whether USADA is a government actor); 2) Armstrong had to resort to administrative and foreign remedies; and 3) he contractually agreed to arbitrate all doping matters with USADA. On Thursday, Armstrong announced that he is not going to fight the USADA proceedings. This likely means he will be stripped of his seven Tour de France titles, his Olympic medal, and all other cycling accomplishments dating back to 1998; he also may receive a lifetime ban from cycling.

Armstrong's statement continues to insist that he never doped or used PEDs. It explains that he decided to "turn the page." While he would "jump at the chance" to defend himself if he thought the process was fair or legitimate, he "refuse[d] to participate in a process that is so one-sided and unfair."  But, he reminded everyone, "I know who won those seven Tours, my teammates know who won those seven Tours, and everyone I competed against knows who won those seven Tours."

In taking this position, Armstrong sounds very much like Pete Rose. Rose similarly stopped fighting MLB's investigation and accepted a punishment, but without admitting any wrongdoing.  He then spent fifteen years insisting that he had done nothing wrong and that no one had proven that he had done anything wrong and reminding everyone that someone got all those hits and achieved all those things on the field. Eventually, of course, Rose gave up and admitted wrongdoing.

Curious to see what happens with Armstrong going forward.

Is NCAA abusing discovery process in O'Bannon v. NCAA? Sonny Vaccaro targeted

Jon Solomon of The Birmingham News writes today about the NCAA targeting Sonny Vaccaro, an unpaid adviser to Ed O'Bannon's legal team in the former UCLA star's class action lawsuit against the NCAA.  O'Bannon's case is in discovery and the NCAA wants tons of records from Vaccaro, whom the NCAA describes in disparaging ways:
Court documents filed in June show that the NCAA wants records from Vaccaro. The NCAA says they're relevant to the players' claims they can't sell their likenesses. The NCAA's attorneys use words like "agent," "runner" and "broker" to paint Vaccaro's livelihood coming off the backs of players. 

The players' attorneys say Vaccaro criticized the NCAA long before this suit, and that the NCAA hasn't denied investigating Vaccaro and now wants to accuse him of improprieties.
"This is scorched-earth litigation," the players write. 

Counters the NCAA: "Vaccaro and his organization are at the heart of decisions and financial careers of former student athletes. Vaccaro's participation in gathering plaintiffs is directly relevant to the merits of the claims as well as the qualifications of the class members." 
 For more, click here.

Wednesday, August 22, 2012

Paralleling Law School Grades and Wonderlic Scores in hiring decisions by Law Firms and NFL Teams

Boston University law professor Jay Wexler has a terrific new essay for Salon titled "I made Clarence Thomas laugh". The essay explores Jay's experience as a clerk for Justice Ruth Bader Ginsburg from 1998-99. It's informative and also funny:
It is true that Justice Ginsburg is short, maybe even quite short. But listening to people who haven’t met her talk about how short she is could lead you to believe that she is some sort of miniature person who could fit in your shirt pocket or the palm of your hand. In fact, she cannot fit in these tiny places.
One passage, in particular, caught my eye:
Almost all the justices hire four law clerks. Most of the clerks come from a handful of top law schools. People are always asking me, “How did you get that job?” I tell them that the one thing in the world I’m actually very good at is taking law school exams. Indeed, I can write an essay about a complicated set of totally made-up facts under extreme time pressure as well as just about anybody. It turns out that this ability has no relationship whatsoever to being a good lawyer, being a good law clerk, being generally smart, or anything else, but it did go a long way to getting me my job at the Court.
I don't believe a relationship between law school grades (which, especially in the case of first year courses, are usually determined only by a final exam) and success as an attorney has ever been proven. Perhaps that's because that kind of relationship may be impossible to show empirically. It also begs the qualitative question of what "success" means - is it only about making money or is it also about respect from peers or advancement of social justice? Is it simply, what will people remember about your career when your career is over? Others, like Above the Law's David Lat, have explored this topic, but there's no conclusion to be found. There's a folksy expression that I've heard, something along the lines of "the A student becomes a professor, the B student becomes a judge and the C student becomes the wealthy lawyer", but that doesn't seem quite right either.

Still, as Jay notes, success on a law school exam seems unrelated to how one works as a lawyer (or as a judge, law maker, law enforcer, regulator, clerk, professor, lobbyist or one of the many other jobs pursuable with a law degree). You get two or three hours to respond to a completely made-up fact pattern, sometimes without access to a book or notes (because lawyers never get to use books or notes, right?). This kind of exam probably is helpful practice for taking the bar exam, but it does not seem related to work as an attorney.

This reminds me of the Wonderlic Test for the NFL draft. I've written about the Wonderlic before. Like students taking a law school exam, Wonderlic test-takers have to respond to made-up questions in a high-pressured, limited time setting:
The Wonderlic is a twelve-minute, fifty-question exam designed to assess aptitude for learning a job and adapting to solve problems. Although it is administered to prospective employees in a wide range of occupations, it is most famously employed in the NFL, with prospective NFL players strongly urged to take it before partaking in the NFL draft. The exam is thought to measure how well prospective NFL players will comprehend playbooks, react to different schemes and onfield developments, and navigate through the pressures of stardom and celebrity, among other considerations that may affect the quality of their employment. The Wonderlic is also commonly perceived as a proxy for an IQ test.
50 questions must be answered in 12 minutes, meaning the test-taker is allotted about 14 seconds per question.
Many have written about what appears to be a lack of relationship between Wonderlic score and success as an NFL player (others, like Jason Chung, have looked at distributing prejudices associated with the test). Still, the test is used by teams in evaluating players. The media also finds it interesting to learn of a player's score, especially a terrible score. Scores are supposed to be kept confidential, but terrible scores seem to get leaked and players with those scores publicly ridiculed as a result. At least law students with bad grades don't get written about in the press.

There's probably something to be said for the idea that decision-makers crave numbers when selecting one person over another. A law firm hiring partner can cite grades as justification to hire one law student over another, and an NFL general manager can use a player's Wonderlic score (along with various other measurements) to justify drafting one player over another. But that doesn't make the decision-making process more accurate or more predictive than other types of processes. And maybe both law firms and NFL teams can learn something from that.

Monday, August 20, 2012

Fixing Sports Agent Law: Preliminary Thoughts, and My New Article

In February 2012, the Uniform Law Commission announced the creation of a Study Committee on Amending the Uniform Athlete Agents Act ("UAAA"). This announcement will likely lead to renewed debate about the proper role of sports agent law.

Today, I posted on the Social Science Research Network ("SSRN") the first draft of my new law review article: Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform Sports Agent Laws to Conform with True Agency Principles.

In this article, I argue that the current version of the UAAA operates like a Trojan Horse. On the outside, it appears to provide athletes with legal protection against their agents. Yet, on the inside, it attacks the very autonomy and financial well-being that traditional agency law is intended to protect. I then argue for a number of reforms to sports agent law, including the following:
  • The expansion of the Uniform Athlete Agents Act to govern the relationship between professional athletes and their agents.
  • An increased emphasis on preventing conflicts of interest between athletes and their agents, both on the professional and amateur level.
  • The implementation of a private cause of action to allow athletes to bring suit directly against their agents under the UAAA.
  • The removal of language from the UAAA that grants NCAA member schools with a cause of action to sue their own student-athletes for failing to disclose agency contracts.
A full draft of my article is available for download here. Readers' thoughts and feedback are both welcome and appreciated.

Easy First Amendment Cases

Sometimes, they really would be easy. The AD at the University of Arkansas announced today via Twitter a new policy requiring that students get approval in advance from the university for any signs they want to display at football games this season. Obviously, the school is trying to prevent any signs referring to the mess with Bobby Petrino, his mistress, and his motorcycle.

But does anyone at this public institution playing football in a public stadium really believe they could get away with a policy requiring advance state approval in order to speak? Or are they counting on no one challenging it?

Job Posting: International Opportunities Available for US Professional Athletes

Growing up in the United States, our vision for success in professional athletics is limited to the major four leagues—MLB, NBA, NFL and NHL. With the exception of soccer, track and field, women’s basketball and perhaps a few other sports, the US major leagues are the “premier” professional leagues—the prestige, visibility, and corresponding salaries, are the best in the world. However, our perspective is undoubtedly skewed, as opportunities are abundant around the globe. Two examples of recent Boston College alumni help illustrate this point.

Craig “The Rhino” Smith entered the NBA in 2006 after graduating from Boston College as the all-time leading rebounder and second all-time leading scorer. He has played atotal of 403 games over six seasons with Minnesota, Los Angeles, and this past season Portland. As a free agent this summer there were five NBA teams interested in him, but none offered him a starting position. In evaluating his options and goals, Smith surprised many when this past week he signed a one-year deal to play for Hapoel Migdal Jerusalem in Israel.

He was tired of being, as he put it “roster filler,” and this new team offered him a chance to play a prominent role. Smith stated “I was tired of being considered a nice guy and being the 10th guy on a team. I'm really sick of that. There's a fire burning in me.” Smith took considerably less money to chase playing time. Obviously, an outstanding year in Israel may make him a stronger NBA free agent candidate next year, but this was more about wanting to play basketball than “be in the NBA.” [Link to his interview here.]

Ryan Shannon, captain of Boston College’s hockey team during the 2004-05 season, has played 305 games in the NHL making stops in Anaheim (where he won the Stanley Cup in2006-07), Vancouver, Ottawa, and Tampa Bay this past season. Like all NHL free agents this year, Shannon would be left to wait for the resolution of the labor impasse between the NHL and NHLPA this summer, and the contract offer that would surely follow. However, like Smith, Shannon made a decision to go overseas and sign a three-year deal with the Zurich Lions of Switzerland’s professional hockey league.

Shannon, as husband and father, decided that he was after “a good environment for my family, something we’d enjoy…..we want to balance life. It’s not just trying to collect a paycheck.” With the NHL under the cloud of a potential lockout, by heading overseas Shannon secured stability for his young family, a guaranteed paycheck, and an amazing opportunity for a unique experience. [Link to his interview here.]

Neither Smith nor Shannon are all-stars in their respective leagues. Both are smart individuals who have a passion for their sport, but also know that they are not defined by what league they play in. Overseas leagues offer them a significant paycheck, opportunities to ply their craft in a competitive environment,and a slightly different career/life balance in an exotic new locale.

This migration is not limited to these two individuals. As labor conflicts in the professional leagues in the United States become almost routine, athletes are heading overseas with greater regularity—chasing opportunities and stability not available here. I wish Smith, Shannon, and the rest of our athletes heading overseas the best of luck in this new chapter in their lives.

Sunday, August 19, 2012

Warren Zola mentioned as potential candidate for Boston College Athletic Director

This has been the weekend of good rumors for good friends in sports law who are also members of Vermont Law School Sports Law Institute's Board of Advisors.

First on Friday it's reported that Mike Zarren, Celtics Assistant GM and attorney, may become the next GM of the Philadelphia 76ers. Now I see our own Warren Zola's name mentioned as a possible successor to the retiring Gene DeFillipo as Boston College Athletic Director.

In addition to his excellent sports law analysis, Warren is Chair of Boston College's Professional Sports Counseling Panel. He is also an Assistant Dean at Boston College, a sports business and law professor and a sports attorney. Everyone who knows Warren knows that he would be a terrific athletic director and he's someone completely honest and transparent with student-athletes, too.

Eagle in Atlanta raises Warren as a candidate for the AD post:

* * *
Warren Zola
Currently the Assistant Dean for Graduate Programs in the Carroll School, Zola worked in the Athletic Departmet in the 1990s. In his current role he has been advising BC student athletes on their professional options and life after sports. Zola also consults other Athletic Departments and is a frequent speaker and writer on sports topics. What I like about Zola is that he's got one foot in the NCAA world, but also has the education and experience beyond the playing field. Zola understands media and could be a driving force in improving our coverage and making sure the ACC keeps up with other major conferences media revenues.

* * *
If Warren becomes AD of BC, will he still have time to blog? I think he will, although he might ask for a raise from the salary of $0 we pay ourselves.

Saturday, August 18, 2012

Good luck to Sports Lawyer Mike Zarren

SI's Sam Amick reports that Celtics Assistant GM Mike Zarren, one of the founders of the Harvard Journal of Sports and Entertainment Law, is a leading candidate to become the next GM of the 76ers. I'm biased. Mike is a close friend. He's also one of the real, true "good persons" in sports - no one has been more generous with his time in speaking to students in my classes about getting into the industry and various business and legal issues concerning the NBA and the Celtics. He's always candid and insightful, not to mention humble. A great role model for law students seeking to break into sports law.

But even if I didn't know Mike personally, I'd consider him one of the best minds in sports. He's one of the leaders in analytics in the NBA, especially in using analytics to scout players, and he has an uncanny understanding of the NBA's CBA and various salary cap dimensions. It's also kind of cool to think that someone I went to school with may become GM of an NBA team, and a pretty storied team at that.

For previous Sports Law Blog posts on Mike, click here.

If Mike becomes GM of the Sixers, one the owners he'd work for is Jason Levien. Both Mike and Jason are valued members of the Vermont Law School Sports Law Institute Board of Advisors.

Friday, August 17, 2012

Santa Clara University School of Law - Third Annual Sports Law Symposium

Santa Clara University School of Law's Institute of Sports Law and Ethics is hosting its third annual symposium on September 6, 2012. The conference addresses the following question - "What is the proper role of sports in higher education?" Complete conference details can be found here. The agenda is below:

9:00-9:05 a.m.
Welcome: Ron Katz, Chairman, Institute of Sports Law and Ethics, Santa Clara University
9:05-9:35 a.m.
Keynote Address: Joe Nocera, Op-Ed Columnist, NY Times
9:35-10:05 a.m.
Keynote Address: Wallace Renfro, Vice-President and Chief Policy Advisor, NCAA
10:05-10:15 a.m.
10:15-11:30 a.m.
Panel Discussion of Keynote Addresses Moderator: Dan Coonan Panelists: Harry Edwards, Peter Goplerud, Brent Jones, Ronnie Lott, Amy Perko, Ellen Staurowsky, Jamie Zaninovich
11:30 a.m.-12:30 p.m.
Financial Issues in College Athletics A. Paying Student-Athletes for their Services? Moderator: Andy Schwarz Panelists: William Gould, Libba Galloway, Bomani Jones, Jonathan Orszag, Dan Rascher
12:30-1:30 p.m.
Lunch: Remarks by David Drummond, Senior Vice President Corporate Development and Chief Legal Officer, Google (former varsity football player at Santa Clara University)
1:30-2:45 p.m.
B. Paying Student-Athletes for their Images? Moderator: Kevin Greene Panelists: Rob Carey, Greg Curtner, David Greenspan, Jon King, Dan Mason, Lateef Mtima
2:45-3:00 p.m.
3:00-5:00 p.m.
Disciplinary Issues in College Athletics A. Academic Discipline B. Discipline for Misbehavior C. Institutional Barriers to Ethical Behavior Moderator: Ted Leland Panelists: Terry Fahn, Peter Goplerud, Ramogi Huma, Rick Karcher, Jo Potuto, Linda Robertson, Kevin Satterlee, Sonny Vaccaro, Jamie Zaninovich
5:00-6:30 p.m.
Reception Remarks by: Katherine Starr, Founder and President of Safe4Athletes, whose mission is to create an environment for athletes that is free from sexual abuse, bullying and harassment Tina Syer, Chief Impact Officer, Positive Coaching Alliance, whose mission is to provide all youth and high school athletes a positive, character-building sports experience

Wednesday, August 15, 2012

Why inclusion of 1992 Dream Team members in NBA2K13 may help Ed O'Bannon in O'Bannon v. NCAA

Good news for fans of the popular video game series NBA2K: this year's game, NBA2K13, will include all but one member of the 1992 Dream Team. Why? Because the game's publisher, 2K Sports, negotiated individual licensing contracts with 11 members of the Dream Team, including Michael Jordan, Larry Bird and Magic Johnson (2K couldn't strike a deal with Scottie Pippen).

Undoubtedly, the game is poised to generate more sales with the Dream Team in it, especially among those of us who are old enough to remember the Dream Team. As a teenager in 1992 who bought EA Sports' Team USA Basketball for the Sega Genesis just to play as the Dream Team, I may just have to pick up a copy of NBA2K13 for my XBox 360.

Members of the Dream Team will of course be compensated by 2K Sports for the use of their name and likeness. It sounds like an obvious point, but again, notice how members of the Dream Team were capable of doing their own deals, and as Pippen shows, capable of declining a deal.

One of Ed O'Bannon's antitrust arguments in his class action lawsuit against the NCAA and the Collegiate Licensing Company (CLC) is that ex-NCAA basketball and football players are capable of negotiating their own licensing deals for video games, and the market would be more competitive if they could. Under NCAA rules, they aren't able to enter into such contracts; instead, CLC negotiates on their entire behalf (and, of course, players are barred from any compensation). If ex-NBA players can negotiate their own deals with 2K Sports, why couldn't ex-NCAA players do the same with video game publishers?

Will be interesting to see if NBA2K13 works its ways into the O'Bannon litigation.

Update 1:45 PM: Great point by Ryan Rodenberg on Twitter:
@McCannSportsLaw Also interesting to note that then-college player Christian Laettner is part of the game (and negotiated his own deal?).
Assuming Laettner, like the other Dream Team members, negotiated his own deal, then I believe he would be the first player to negotiate a licensing deal for his basketball performance while he was still an NCAA student-athlete. Would seem that the NCAA's exemption language for NCAA student-athletes who are competing in the Olympics, as Warren Zola wrote about for Sports Law Blog on Monday, would be in play.

Update II August 28 10:00 pm: Scottie Pippen signs last-minute deal to be in NBA2K13 - the Dream Team will be complete. Looks like players can decide if and when they want to be in video games.

Monday, August 13, 2012

Why Missy Franklin retains her NCAA eligibility: The Operation Gold Exception

Over the past several weeks there has been a considerable amount of attention given to the United States Olympic Committee’s “Operation Gold” program. This program was created to provide additional incentive for our Olympic athletes by granting awards -- $25,000 to gold medal award winners, $15,000 to silver medalists and $10,000 for those who earn bronze medals. There is nothing unique about the efforts by the United States as a slew of other countries provide similar, if not larger,financial rewards for their athletes.

What is unique in this country is the NCAA, its self-created definition of “amateurism,” "initial eligibility," and its relationship to the Operation Gold program. Article 12 in the2011-12 NCAA’s Division 1 Manual defines the scope of amateurism and this is where one can find a unique exception for Olympic athletes. In Article 12.1.2 the NCAA defines a multitude of ways in which an individual can lose amateur status—including using their skill for pay, signing a professional contract,entering into a professional draft (a few exceptions), or signing with an agent.

Furthermore, the prohibited forms of pay are outlined, ad nauseum, in Article which includes payment for performance. Specifically, Bylaw “Payment Based on Performance” defines the following type of payment as a trigger for losing one’s amateur status:

“Any payment,including actual and necessary expenses, conditioned on the individual’s or team’s place finish or performance or given on an incentive basis, or receipt of expenses in excess of the same reasonable amount for permissible expenses given to all individuals or team members involved in the competition.”
However, tucked into page 64 of this 426 page manual are two rules that are now critically important to a slew of Olympic athletes as they carve out exceptions. Specifically, “Expenses/Benefits Related to Olympic Games” holds that:

“It is permissible for members of an Olympic team to receive all nonmonetary benefits and awards provided to members of an Olympic team beyond actual and necessary expenses, including entertainment, equipment, clothing, long distance telephone service, Internet access, and any other item or service for which it can be demonstrated that the same benefit is available to all members of that nation’s Olympic team or the specific sport Olympic team in question.”
Additionally, “Operation Gold Grant” holds that:

“An individual(prospective student-athlete or student-athlete) may accept funds that are administered by the U.S. Olympic Committee pursuant to its Operation Gold program.”
The end result? Olympic athletes who received a significant amount of money from Operation Gold are allowed, under NCAA rules,to maintain their college eligibility.

Note, however,that in 2004 the courts, in the case of Bloom v. National Collegiate Athletic Ass'n, 93 P.3d 621 (Colo.App. 2004), made it very clearly that an individual’s NCAA amateurism status would be lost if they entered into any endorsement or marketing deals. [Bloom was a college football player at the University of Colorado and also an Olympic skier. Bloom was paid to participate in endorsements in connection with his professional skiing career and the NCAA subsequently held Bloom to be ineligible for the final two years of his college football career. The courts upheld the determination, finding it impossible to determine which endorsement and media activities were, in fact, unrelated to his athletic ability or prestige as Bloom contended.]
Thus, USA swimming star Missy Franklin will take home $100,000 for each individual gold ($25,000 from the US Olympic Committee and $75,000 from USA Swimming) in the 100- and 200-meter backstroke events. And, per NCAA rules, these payments are allowed and do not cause her to lose her amateur status. Surprisingly, and in my mind this speaks to the arbitrary nature of some of the NCAA’s rules, Franklin is not allowed to receive a $50,000 bonus from USA Swimming for setting the world record in the 200-meter backstroke. Nor could she receive a free pair of shoes from Nike or a cup of coffee from a college coach recruiting her.

Got it?

[Editor’s note:Missy, Boston College has a wonderful swimming team……]

Most Cited Tenured &Tenure Track Antitrust Law Professors

Antitrust law is arguably the most important part of sports law, with labor law, intellectual property law, contract law, constitutional law, criminal law, tax law and immigration law (among other areas of law) also playing key roles. Whether the topic is lockouts, age restrictions or any other way teams/leagues/conferences/divisions join hands, antitrust law is implicated.

Over on Antitrust Competition and Policy Blog, University of Florida Law Professor Daniel Sokol, who is visiting this upcoming year at the University of Minnesota Law School, has used the Westlaw journals and law review (JLR) database to determine which antitrust law professors who are tenured or tenure-track have received the most citations since 2010.

Three of the top 75 professors are sports law professors, and a few others on the list have writings that implicate sports law.

Good to see our area of law continue to gain influence in the broader legal academy.

Turley on Olympic Rules

Jonathan Turley (George Washington and a fellow Northwestern grad) offers some thoughts on rule changes that the Olympics should implement, including the use of instant replay and establishing the same rules for men and women competing in the same sports. Worth a read.

The point about the same rules for men and women raises some interesting questions about when different rules should apply. Turley points to the rules for aborting a vault (women can do it, men can't) or for redoing a dive (men can, women can't). But this list is potentially endless--men do the decathlon while women do the heptathlon, women run a 100-m hurdle while men run 110-m hurdle, women use a smaller basketball. As with all equality issues, it all turns on there being a rational basis for the distinction, one not bound up in stereotypes and myths about women's athletic ability. On the other hand, there can be a visceral sense in which men and women playing the same sport are not playing the same game. I watched a lot of handball and the women's game felt very different from the men's game, so perhaps different rules make sense (although I don't believe there are different rules).

Sunday, August 12, 2012

Texas Review of Entertainment and Sports Law’s 4th Annual Symposium

The University of Texas School of Law and Texas Review of Entertainment and Sports Law are hosting a conference devoted to the "dark side" of sports and entertainment law on September 7, 2012 in Austin. Complete details are below.


8:30-9:00 a.m. – Registration and Breakfast
9:00-9:15 a.m. – Opening Speakers: Professor David Sokolow,Mr. Tristan Griffin
9:15-10:45 a.m.– Coaching Affairs: Coaches in Trouble with the Law, the NCAA, and their Universities
Panel:Moderator: Mr. Jason Belzer, Panelists: Mr. Holt Hackney, Mr. Darren Heitner, Professor Theodore Curtis
10:45-10:55 a.m. – Break
10:55-11:55 a.m. – Morals, Disparagement, and Performance Clauses: Addressing Immoral and Problematic Behavior in the Endorsement and Talent Services Context
Speaker: Mr. Christopher Chase
11:55-12:05 p.m. – Break
12:05-1:05 p.m. – Lunch Presentation: Fixing the Game:Sports Betting and the Law Speaker: Mr. Jeffrey Standen
1:05-2:05 p.m. – Doping in Sports: WADAWorld Anti-Doping Code and its Harmonization with Other Sports and Federations Speaker:Dr. Steven Ungerleider
2:05-2:15p.m. – Break
2:15-3:45 p.m. – Head Cases: Long-Term Tort Implications of Professional Sports
Panel: Moderator: Professor Thomas McGarity, Panelists: Mr. Darren Heitner, Ms. Carla Varialle, Mr. Derek Muller
3:45-4:00 p.m. – Closing
Speakers: Professor David Sokolow, Mr. Tristan Griffin

Friday, August 10, 2012

Munich basketball, 40 years later

A few days ago, I linked to a post by Lisa McElroy on using the scoring errors in the 2004 Men's Gymnastics to generate a discussion of law and justice. I mentioned that the previous standard example was the 1972 Men's Basketball Gold Medal Game, forgetting that this year is the 40th anniversary. Well, has published a series of essays on that game, including a recounting of the gap, an interview with Doug Collins (who hit what should have been the game-winning free throws with 3 seconds left), and a piece on an Illinois attorney who is pushing the IOC to award duplicate gold medals (as was done in 2002 for a Candian pairs figure skating team).

On that last point, here is an interesting ethical and/or remedial question: The push is to get duplicate golds and 11 members of the team have agreed to that solution. But one player--team captain Kenny Davis--insists that not only must the U.S. be awarded the gold, the Soviets (or Russia, as the successor nation) must be stripped of theirs. Is that the right position to take?

Women's sports and the Olympics

A few of thoughts and questions on a good morning to talk about women's sports and Title IX, in the wake of 1) yesterday's gold medal win by the U.S. women's soccer team before 80,000 at Wembley Stadium (and millions more live on some medium--are you listening NBC) and 2) the Second Circuit's decision earlier this week holding that Quinnipiac University violated Title IX by trying to eliminate the women's volleyball team.

First, there has been  talk in the last few days about US women earning more medals, and more golds, than their male counterparts. Yesterday's wins in soccer and water polo add to that, as might a gold in today's women's volleyball final (the men were eliminated in the quarters).

Second, here is a nice essay by Slate/NPR's Stefan Fatsis about the women's soccer match and its "meaning," arguing that it actually has no deeper meaning other than that a bunch of women's teams played an exciting tournament that in every way (from playing hard to bitching about the refs) resembled a men's tournament, was watched by a lot of people, and can be evaluated on its own terms. He does consider briefly what the large audience for Olympic soccer tells us about the sustainability of a professional women's league (a point I addressed here). I do like his broader point--that women's sports is, slowly, becoming less of a cause and a simply a matter of good competition.

Third, the Second Circuit decision received some attention because Quinnipiac had sought to make up the lost volleyball spaces by creating a competitive cheerleading team; this required the court to consider whether cheerleading is a sport, concluding it was not (although not for the reasons I would offer--it had to do with how well-established and well-organized something was as a competitive event, meaning cheer could become a sport some day).

A question: Would a more purposivist take on Title IX uniformly favor opportunities in volleyball or soccer over opportunities in cheer, given the statute's goal of creating new opportunities for women in sports? Cheerleading predates Title IX by many years, obviously, and it seems to me it would undermine the statute if schools could satisfy their statutory obligations by increasing the number of opportunities for women/girls to do what they have been doing all along rather than providing genuinely new athletic opportunities.

Thursday, August 9, 2012

Cheerleading is not a sport

Although not for the reasons I would urge. The Second Circuit held that Quinnipiac University violated Title IX by eliminating the women's volleyball team and that it could not compensate for the shortfall in sports opportunities for women with a competitive cheer team, because the latter was not a sport. This conclusion is obvious under my as-refined definition. The court considered a number of much different factors, although one included the lack of uniform competitive rules (competition being one of my preferred elements).

The Curious Dynamic of Players' Associations Bargaining Eligibility Rules on Behalf of Prospective Players

I had the honor of speaking at the U.S. Court of Appeals for the Eighth Circuit Judicial Conference earlier today in Kansas City. It was a great experience to speak to so many judges and top appellate attorneys, including Ted Olson and Paul Clement, both of whom played major roles in last year's NFL and NBA lockouts. I was on a panel with Gary Roberts, Bob Wallace and Judge Mary Vasaly. I have posted my remarks on SSRN. They will be converted to a law review submission later. I address whether players' associations should be able to bargain eligibility rules (i.e,. the NBA, WNBA and NFL age limits) on behalf of prospective players. Here's an excerpt:

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Clearly commissioners, leagues and their teams want these rules, for reasons that can be debated. I have argued for more than 10 years that 18-year-old players should have the choice to turn pro and take the benefits and risks that go along with it. I also have conducted my own empirical research -- both for on-court performance and for off-court issues, such as arrest propensity as correlated to number of years spent in college -- and read the research of others on the NBA's age restriction. The data is clear: the rule and the numbers behind it tell contradictory stories.

But that's not new, nor is it necessarily relevant to a legal discussion, at least not yet. And instead of looking at age limits from a view directed at David Stern or Roger Goodell or various league officials and lawyers, I'd rather look at the players associations that have approved these rules as part of collective bargaining agreements. How often are Billy Hunter, the NBA players' executive director, or De Smith, the NFLPA's executive director, criticized for age restrictions? Not often, if ever. But maybe they should.

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Hope you have a chance to check out what I said.