Alito on the Baseball Antitrust "Exemption"

In 2008, Justice Alito gave a speech to the Supreme Court Historical Society on Major League Baseball's antitrust status, as Howard and Ed Edmonds discussed here and here. Justice Alito's remarks have now been published in the Journal of Supreme Court History, and are available on-line.

What if Rick Pitino Had Been a Woman?

Professor Joseph Kohm, who teaches sports law at Regent University School of Law and is a certified MLB agent (and former member of the Syracuse men's basketball team), checks in with an interesting question:

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My wife [Professor Lynne Marie Kohn] teaches Family Law and Gender in the Law at Regent University and she asked me a very interesting question today. She wondered what would be the reaction if Rick Pitino was a woman. What if she was a prominent Division 1 head women’s basketball coach and it came to light that she had engaged in sexual intercourse on a table with a man (not her husband) she just met that evening in a restaurant? Some news reports in the Pitino matter say that one of his assistants was called to the restaurant and that the assistant was able to hear what was going on inside. Not to mention the abortion issue.

I looked at Coach Pitino’s employment contract and he can be dismissed for conduct that, “could objectively be anticipated to bring Employee into public disrepute or scandal” or his actions tend, “to greatly offend the public.” Similarly, he can be terminated if his actions sink to a level of “moral depravity.” Maybe it’s just me but I sense kind of a boys-will-be-boys attitude by the Athletic Director, whereas if a Coach who was a woman engaged in this type of behavior, she would have to wear The Scarlet Letter.

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Has Pitino's gender helped him?

Alan Milstein on Clarett v. NFL and Prospect of Similar Challenge to NBA Eligibility Restriction

Alan Milstein, who litigated on behalf of Maurice Clarett in Clarett v. NFL (I was also part of Clarett's legal team), was interviewed over on Hoop Teens about the prospect of a player challenging the NBA's eligibility rule, which requires that U.S. players be at least 19-years-old by December 31 of the year of the draft and that they be one year removed from high school (In contrast, international players, defined as those who maintain a permanent residence outside of the United States for at least three years preceding the draft, need only be 19-years-old by December 31 of the year of the draft.).

Here are some excerpts from Alan's interview:

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“He was precluded from playing at Ohio State because of supposed NCAA violations,” says Alan Milstein, Clarett’s lawyer in the case. “He had no other place to go. He was ready to play football. They were ready to hire him. And he just needed to get into the draft.”

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“The 2nd circuit was wrong in the way that they ruled on the case,” says Milstein with conviction. “We won at the district court level, lost at the 2nd circuit. We shouldn’t have lost, we should have won.”

Milstein disagrees with skeptics that say football is a different beast than the other pro sports. Surely the physicality of the sport gives the NFL legitimacy in requiring players to be at least three years removed from high school. Right?

“The best hockey player in the world [Sidney Crosby] came out of high school,” says Milstein. “I think the NFL is a kid’s game compared to the NHL as far as the level of violence. If the players are ready to play, they will get drafted. If they’re not ready to play, they won’t make the team.”

Milstein is a staunch proponent of no age limits in professional sports and thinks the policies that professional leagues set run deeper than just meeting their own interests. “I think it’s an outrageous policy [setting age limits], perpetuated by an agreement by the … pro teams to help the NCAA,” says Milstein.

Asked if he would have any interest in challenging the NBA’s policy if he was approached by a client, Milstein replies, “Absolutely.” Spencer Haywood did challenge the NBA — and won — but that was back in 1971. Since the NBA’s new age policy took effect with the 2006 draft, nobody has bothered to contest it in court. Just last year, Brandon Jennings chose to play in Italy for one season instead of trying his luck in the judicial system.

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I discuss the prospect of a legal challenge to the NBA's eligibility restriction in my forthcoming law review article Judge Sonia Sotomayor and the Relationship Between Leagues and Players, which Henry Abbot recently discussed on ESPN.com and Darren Heitner discussed on Sports Agent Blog. Yes, the article title will soon change to "Justice Sonia Sotomayor . . ."

New Sports Law Scholarship

Recently published scholarship includes:

Lindsey M. Baldwin, Note, When a goon’s goal is a green card: NHL players and the alien of extraordinary ability immigrant visa category, 22 GEORGETOWN IMMIGRATION LAW JOURNAL 715 (2008)

Erin DeNatale, Comment, FORE: the problem with the LPGA’s proposed language policy, 30 WHITTIER LAW REVIEW 623 (2009)
Marc Edelman, The house that taxpayers built: exploring the rise in publicly funded baseball stadiums from 1953 through the present, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 257 (2009)

Matthew Epps, Comment, Full court press: how collective bargaining weakened the NBA’s competitive edge in a globalized sport, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 343 (2009)

Victor Matheson and Brad R. Humphreys, PILOTs and public policy: steering through the economic ramifications, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 273 (2009)

Stephen J. Matzura, Comment, Will maple bats splinter baseball’s antitrust exemptions?: the rule of reason steps to the plate, 18 WIDENER LAW JOURNAL 975 (2009)

Michael L. Meyer, Note, If nobody picks up the ball is it really a fumble, or is it a forfeit? The NFL Players Association request for legislative changes to the Labor-Management Relations Act of 1947, 43 VALPARAISO UNIVERSITY LAW REVIEW 1375 (2009)

Brianna J. Schroeder, Note, Power imbalances in college athletics and an exploited standard: is Title IX dead?, 43 VALPARAISO UNIVERSITY LAW REVIEW 1483 (2009)

Jeffrey Standen, The monopoly myth: a comment on the public funding of sports stadiums, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 267 (2009)

Bryan Steinkohl, Comment, Now taking the field, the state government: landmark status of baseball stadiums as regulatory takings, 29 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 233 (2009)

Jeffrey S. Storms, El montículo (“the mound”): the disparate treatment of Latin American baseball players in Major League Baseball, 11 UNIVERSITY OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY 81 (2009)

Stephen Taylor, Comment, “Are you not entertained? Is this not why you are here?” U.S. taxation of foreign athletes and entertainers, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 375 (2009)

Using Social Psychology to Evaluate Race and Law in Sports

I have posted on SSRN a draft of a forthcoming chapter I've written for "Reversing Field: Examining Commercialization, Labor, Gender and Race in 21st Century Sports Law" (andré douglas pond cummings and Anne Marie Lofaso eds, forthcoming).

Here is the abstract:

This chapter will examine the connection between social psychology and the larger topic of race, sports, and the law. It will begin by discussing human attitudes and cognitive biases and then turn to what could be the most clearly detectable, or at least the most controversial, connection between social psychology, race, and sports law: the alleged nexus between implicit attitudes and patterns of referees and umpires when officiating games. In particular, the chapter will discuss recent research on the supposed propensity of National Basketball Association referees to call fouls on African-American players with greater frequency than objective data would predict. The chapter will also consider new research on Major League Baseball umpires and a possible relationship between pitchers’ race and umpires’ called balls and strikes. It will then raise the possibility that the Wonderlic Personal Test for the National Football League Draft and similar tests may corroborate findings on stereotype threat. The chapter will conclude by noting the importance of law and collective-bargaining in rectifying related concerns.

To download the chapter, click here.

Taxi Cab Convictions?

Early Sunday morning, Chicago Blackhawks star winger, Patrick Kane, was arrested (along with his cousin) in Buffalo for allegedly beating a cab driver (Jan Radecki) and taking back the fare that they paid ($15). The charges against the Kane's are for Second Degree Robbery (per the NY Penal Code, punishment must be at least 3.5 years and not to exceed 15 years in jail, and a fine of up to $5,000), and Class A misdemeanor counts for Criminal Mischief and Theft of Services (punishable by up to 1 year in jail and a $1,000 fine). The police report (a Felony Complaint and a Misdemeanor/Violation Information Sheet) states that the Kane's paid the $13.80 meter with $15, for which $1 in change was given. When the driver did not produce the additional 20 cents in change, the Kane's took the $15 back and repeatedly punched the driver.

Since the police report was drafted, a few more facts have come to light: (1) the driver admits in an interview that he kept the doors of his minivan cab locked upon arrival at the Kane's destination, and (2) the driver may not have held a valid license. Why do we care? If you are an attorney for the Kane's, you want to paint this picture: the cab driver unlawfully restrained us in his cab by keeping the doors locked, a reasonable person would fear for his safety at 4am being restrained in a cab, and add to that the fact that my client is a star athlete who has an even greater reason to fear being put in danger. Would this defense fly? It likely will not matter. Patrick Kane is a hometown hero in Buffalo who days earlier appeared with Buffalo's mayor for a ceremony related to a financial commitment from Kane to an ice hockey rink for the City. The taxi driver does not paint the picture of an entirely innocent victim as initially reported. Attorneys for the driver and Kane have since played down this incident as well. A preliminary hearing is set for Monday, but Kane's attorney (Paul J. Cambria Jr.) has stated he is seeking to have said hearing rescheduled for later next week (Kane is due back in the Chicago suburbs on Monday for a 34-man tryout/mini-camp for the US Hockey Team's trip to the 2010 Winter Olympics in Vancouver). Look for an agreement to be reached with the prosecution for a fine and some community service, and the driver receiving some cash.

A concern for Kane could be his appearing on the cover of EA Sports' NHL 2010 for Sony and Nintendo. The game is set to hit stores on September 15, 2009. While at this stage, changing the cover is likely too late if EA Sports wished to do so, but there is precedent for a change. NHL 2004 was to feature Joe Thornton on the cover, but Thornton was dropped after an assault charge. Thornton's replacement, Dany Heatley was also removed after his involvement in a motor vehicle accident that killed his teammate, Dan Snyder. While the first shipments of NHL 2004 were released with Heatley on the cover, subsequent covers featured Joe Sakic.

I was interviewed on Fox this morning regarding this matter. Go to the link for "What's Next for Kane, Blackhawks?"

Coming Soon: The Harvard Journal of Sports and Entertainment Law

Congrats are in order for a group of Harvard Law School students for receiving their law school's approval for an official new online law journal: the Harvard Journal of Sports and Entertainment Law. The editors of HJSEL are still putting everything together, but a website should soon be up and it is anticipated that HJSEL will publish one issue in its first year, likely next spring.

While HJSEL is not yet formally accepting article submissions, you can contact one of its editors, Ashwin Krishnan, for more information about submissions. There will be also additional information on Sports Law Blog.

HJSEL has been in the works for several years. For instance, while he was a student at Harvard Law School between 2002 and 2005, Mike Zarren, who served as Editor-in-Chief of the Harvard Journal of Law and Technology and who is now the Boston Celtics Assistant Executive Director of Basketball Operations and Associate Counsel, worked on a proposal for HJSEL and also wrote an early version of the constitution and bylaws. Our blog's founder, Greg Skidmore, also was involved with efforts to start a sports law journal while he was an HLS student from 2002 to 2005. There are many other folks who deserve credit as well. Kudos to all of them and to Ashwin and the current group of students for their persistence and creativity.

It is fitting that Harvard Law School add a sports and entertainment law review, as Professor Paul Weiler is considered by many to be the founder of U.S. sports law and entertainment law. Through the Committee on Sports and Entertainment Law, HLS has also an impressive history hosting terrific sports law symposia and speakers series. The law school has also produced a number of distinguished sports attorneys, including the aforementioned Mike Zarren, Jeffrey Pash (NFL's Executive VP & General Counsel), and Derrick Jackson (Florida Marlins' VP & General Counsel), among many others.

Speaking of Harvard Law grads in sports law, congrats are also in order for Peter Carfagna, a lecturer on law at Harvard Law School (where he teaches sports law) and Partner at Calfee, Halter & Griswold. Peter, who previously served as Chief Legal Officer and General Counsel of IMG, helped the students organize their efforts to obtain approval.