David Cone on Judge Sotomayor

Former MLB pitcher David Cone testified today before the Senate Judiciary Committee on the nominate of Sonia Sotomayor to the Supreme Court. The video of the full day can be found on the Committee Website. Cone's statement, discussing Sotomayor's decision in the 1995 baseball labor dispute that essentially ended the 1994 strike (and, in Cone's words, "saved baseball") begins at 461:30.

I would argue that calling Cone to testify was wrong for the same reason I thought it was wrong to call New Haven firefighter Frank Ricci to testify. Successful or unsuccessful litigants cannot really tell us anything meaningful about the judge's legal ability or qualifications to be on a higher court. Cone thinks Sotomayor is great because she agreed with the players' union's claims; Ricci not so much, because she disagreed with his claims.

Threat of Title IX Lawsuit Causes Florida Athletic Association to Reverse Course

State high school athletic officials in Florida recently exempted the lucrative sport of football from widespread scheduling cuts that were aimed at easing the financial burden on schools. However, under threat of a Title IX federal lawsuit, yesterday the Florida High School Athletic Association reversed course and abandoned the scheduling cuts to other sports. The lawsuit claimed that exempting football violated gender-equity laws. Katie Thomas of the New York Times has the scoop ("Florida Drops Budget Plan That Favored Prep Football"). Thomas interviewed my colleague and Title IX expert, Nancy Hogshead-Makar, who represented the plaintiffs in the lawsuit and stated her case in front of the FHSAA board at an emergency meeting two days before the parties were to appear in court. Congratulations, Nancy!

Law Review Essay on Judge Sotomayor and Sports Law

Connecticut Law Review will be publishing an essay I've written on Judge Sotomayor and two of her most important sports law decisions: Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football League.

The essay also explores how Judge Sotomayor’s opinions and judicial philosophy may impact other emerging sports law disputes, including whether a player could successfully challenge the NBA's eligibility rule.

Here is an excerpt:

* * *

Politicians and commentators are vigorously debating the judicial philosophy of federal appeals Judge Sonia Sotomayor, whom President Barack Obama has nominated to succeed retiring Justice David Souter on the United States Supreme Court. They are pouring through Judge Sotomayor’s opinions, speeches and other writings, examining and sometimes cherry-picking her words and expressions. Competing sets of beliefs, ideas, and attitudes will gradually be offered to explain Judge Sotomayor’s legal reasoning.

Critics of Judge Sotomayor have already championed an alleged weakness: she crafts her opinions to advance progressive agendas, with wavering adherence to actual law. Proponents of this viewpoint cite President Obama’s comment that he selected Judge Sotomayor partly because of her “compassion,” with the insinuation, in their view, that she bends fixed rules in order to aid disadvantaged litigants. Still others chastise the quality of her logic as overlooking or obscuring substantive legal issues. At their core, these criticisms attempt to impugn Judge Sotomayor as unfit for the Court.

As this Essay explores in Parts I and II, such criticisms are countered by Judge Sotomayor’s role in resolving two notable sports law disputes. In assessing whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football League (“NFL”) draft, Judge Sotomayor invoked traditional, arguably inflexible, applications of federal labor law. In fact, from the lens of each case’s least advantaged party, her opinions may have seemed bereft of “compassion” . . .

* * *

Hope you have a chance to read a draft of the piece on SSRN.

MLB Agents Want Union To Take More Active Stance Against Collusion

With MLB union leader Donald Fehr planning to soon step down from his post, several MLB player agents are encouraging his likely successor, Michael Weiner, to take a more active stance against player collusion.

Unlike most other sports leagues, Major League Baseball has a long and well-documented history of colluding against its players' rights. I provide a detailed account of Baseball's troubling history of collusion in my 2008 Wayne Law Review article, "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones." This article discusses many topics, including how Baseball's neutral arbitrator, George Nicolau, found Commissioner Bud Selig directly involved in collusion during the 1980s. (see pages 619-20).

With respect to the game's newest collusion allegations, concern of such behavior first surfaced during the 2007-08 off-season when Bonds's agent Jeff Borris announced that he believed the reason why Bonds did not have a single contract offer was collusion. After reviewing the available evidence, the MLBPA announced in October 2008 that it had made a preliminary finding of collusion. However, rather than file a traditional labor grievance against the MLB club-owners, the union instead attempted to resolve the matter through private negotiation.

Thus far, the MLBPA's attempts to privately negotiate have not proved fruitful. Barry Bonds still has not received a single contract offer -- not even at the league minimum salary of $410,000. In addition, a growing number of veteran players have expressed a similar concern that they too have been collusion victims.

While the MLBPA has broad discretion to determine when, if at all, to file a formal collusion grievance, like any union, it is bound by its duty of fair representation. This means that the MLBPA cannot act in an arbitrary, discriminatory, or bad-faith manner against any of its members. Union membership includes even those who have opted out of joint licensing programs, such as Barry Bonds.

Refusing to file a collusion grievance, even after reaching a informal finding of wrongdoing, might place the MLBPA at some risk of facing a claim from Bonds for breach of the duty of fair representation. This risk, in essence, might eventually pressure the MLBPA to file a collusion grievance, presuming their talks with the MLB club-owners do not reduce union concerns of wrongdoing. For these reasons, I fully expect the MLBPA to begin more aggressively addressing these recent concerns of collusion. Hopefully, these talks will lead to some candid answers for both those inside Baseball, and the gane's fans.

Ryan Church - Jeff Francoeur Trade - Salary Arbitration

The Ryan Church - Jeff Francoeur trade between the Mets and the Braves on Friday involved two players among the 111 who filed for salary arbitration prior to this season. The Mets also received $270,218 to equalize the salaries. There is already plenty to read on the Internet about the deal, but since my contributions to the Sports Law Blog deal with salary arbitration, I will offer a bit of information and place the rest in comments if anyone is interested in further discussion.

Francoeur and the Braves swapped figures earlier this year while Church and the Mets agreed to a deal before exchanging numbers. Francoeur was offered $2,800,000, and he asked for $3,950,000. The two parties settled at the midpoint of $3,375,000. The raise amounted to 633.70% increase. Ryan Church signed for $2,800,000 for this season. The gap between the two salaries is $575,000. Church made $2,000,000 in 2008 while Francoeur played for $460,000 in Atlanta. Church’s salary increase was 40%. Francoeur’s 80 games played in 2005 beginning on July 7 did not place him in the Super Two category for 2008.

The few data elements listed above raise at least two points. The first is the difference in percentage increases. Many baseball executives dislike the system and argue that the figures produced for the players in their arbitration years drive salaries up more than salaries negotiated for free agents. Francoeur’s promotion in July of 2005 instead of earlier that season also kept him from becoming eligible for arbitration one year earlier. Management’s ability to control how soon a player becomes eligible is one of the tools they have to balance the overall salary structure that they manage.

The system of arbitration in baseball has not changed much in 35 years since first introduced in 1974. As we get closer to negotiating a new basic agreement, it will be interesting to see if any changes are seriously considered.

More on the umpire-judge analogy

Bruce Weber (author of the outstanding story of the umpiring profession, As They See 'Em) has a piece taking down the judges-as-umpires analogy. What does not come up in the piece is the point that, not only does the analogy misconstrue what judges do, but it denigrates what umpires do--the amount of discretion, perspective, purposivism, and judgment involved in umpiring.

Nevertheless, expect to hear a lot of this inane talking point in the coming weeks.

Call for Papers: Third Annual Scholarly Colloquium on Intercollegiate Athletics

Marquette law professor Matt Mitten, who is also Director of the National Sports Law Institute, passes along information on a call for papers:

The Third Annual Scholarly Colloquium on Intercollegiate Athletics

In Conjunction with the NCAA Annual Convention

January 12th and 13th 2010

Atlanta, Georgia

The third annual Scholarly Colloquium on Intercollegiate Athletics will be held on January 12th and 13th, 2010 in conjunction with the NCAA Annual Convention in Atlanta, Georgia. The theme for this year’s colloquium is “College Sports in Recessionary Times: Assessing Challenges & Opportunities.” The conference will consist of keynote presentations by Rodney Fort (University of Michigan), Amy Perko (Knight Commission), Richard Lapchick (University of Central Florida), and Andrew Zimbalist (Smith College) and two formal reactions to each keynote, in addition to a number of refereed free papers.

Proposals for refereed papers should deal closely with issues related to the conference theme of “College Sports in Recessionary Times.” In order for your paper to be considered for one of the free paper sessions, please submit by e-mail attachment an abstract of no more than 300 words to John Thelin at jthelin@uky.edu.

Research papers can be related to sport in general (as long as there are clear implications for college sport) or intercollegiate athletics specifically, with connection to the conference theme of “College Sports in a Recessionary Time.” Your scholarship may be based in the sciences, social sciences, economics, humanities, or any number of professional fields related to intercollegiate athletics.

The deadline for proposal submission is October 1, 2009. Individuals will be notified of the results of the review process in early November 2009.