Instant replay and standards of review

There has been a free-ranging blog conversation recently on why video-replay review in the NFL is so deferential rather than de novo. Joseph Blocher started things off, triggering responses here, here, and here, as well as my limited comments. Mitchell Berman weighs in at Slate today.

It's all worth a read.

City of San Francisco Threatens to Sue MLB

The San Francisco Chronicle reported on Friday that San Francisco's City Attorney has sent Major League Baseball officials a letter threatening a lawsuit by the city of San Francisco should MLB approve the relocation of the Oakland Athletics to San Jose. MLB has been exploring the possibility of moving the A's to San Jose following the collapse earlier this year of a plan to move the franchise to Fremont, CA, with a decision on the San Jose relocation expected as early as next month.

San Francisco's purported basis for suing MLB stems from its financial interest in the Giants. The city reportedly receives $3.6 million in rent the from the Giants annually for AT&T Park, as well as taxes on game day revenues such as ticket sales and parking. The city apparently believes that these tax revenues would be threatened should the A's relocate to San Jose, a territory which has historically been assigned to the San Francisco Giants.

On first impression, the threatened suit by the city of San Francisco seems problematic on several fronts. First, the city would have to convince a court that its interest in protecting its tax revenues from the Giants gives it sufficient standing to legally challenge MLB's approval of the relocation of another franchise into the Giants' assigned territory.

However, even if San Francisco is able to establish standing, such a suit would also place the city in the awkward position of effectively asking a court to enforce MLB's anticompetitive territory allocation system. While professional baseball's practice of granting franchises exclusive rights to certain geographic territories has previously been challenged by those seeking to enter a restricted market -- suits which have historically been dismissed pursuant to MLB's antitrust exemption (see, e.g., New Orleans Pelicans Baseball, Inc. v. National Association of Professional Baseball Leagues, Inc., Case No. 93-253, 1994 WL 631144 (E.D.La. March 1, 1994)) -- a suit by San Francisco would mark the first time that MLB has faced a lawsuit seeking to require the league to enforce this restriction. The optics of such a suit, being filed by a municipality no less, would be less than ideal. I suspect most courts would be uncomfortable issuing an order requiring baseball to enforce its territory restriction, especially in a case where MLB had already decided to set aside its long-standing anticompetitive policy.

American Needle Updates

Two quick items for those closely monitoring the American Needle v. National Football League case before the United States Supreme Court. First, American Needle filed a reply brief yesterday, which is available here. Unfortunately, the NFL's brief is still not yet publicly available for download.

Second, SCOTUSBlog reports that the Supreme Court has extended the oral argument schedule by 10 minutes, so that the United States Solicitor General may argue for a position different than those asserted by the petitioner and respondents. The oral argument is set for 10 a.m. on Wednesday, Jan. 13.

Arn Tellem on NCAA Ban on Use of Attorneys during Contract Talks with Teams

Arn Tellem, a prominent agent to MLB and NBA players and Principal at the Wasserman Media Group, has a thoughtful piece on the Huffington Post on how the NCAA largely prohibits student-athletes from legal representation during contract talks with professional teams. Here are some excerpts from Tellem's piece:

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Athletes and their parents are allowed to get advice about proposed contracts only if their advisors don't represent them openly in negotiations. Athletes and their advisors can discuss the merits of a deal, but to maintain eligibility at NCAA schools, the advisors may not act as a go-between or be present during bargaining sessions or have any direct contact with the team on the athlete's behalf.

The rule is intended to keep agents away from amateur athletes. By rendering agents powerless, it effectively turns them into potted plants. But if you're hammering out a deal with someone, isn't it your prerogative to get professional advice? Absolutely, wrote an Ohio judge in a 2008 judgment against the NCAA. He likened the rule to "a patient hiring a doctor, but the doctor is told by the hospital board and the insurance company that the doctor cannot be present when the patient meets with a surgeon because the conference may improve his patient's decision-making power." The case involved Andrew Oliver, a former pitcher for Oklahoma State University.

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Earlier this month James Paxton became the latest student-athlete to sue over this issue. In October, the University of Kentucky pitcher was notified by the college that he must submit to an interview with an NCAA investigator. Paxton was drafted in June by the Toronto Blue Jays with the No. 37 pick, but passed on the club's offer and returned to college for his senior season. He was the only college ballplayer among the top 100 selections who didn't sign.

According to the lawsuit Paxton filed against UK, when he turned down the NCAA's request, school officials threatened to kick him off the team and strip his financial aid. He also claims that they instructed him not to tell his parents or his lawyers about the interview. Last week Kentucky's legal counsel promised that Paxton will be allowed to practice with the Wildcats and won't be punished despite the pending litigation. Still, the case is going forward.

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College athletes should be allowed to seek legal help to make informed decisions about their future. Those who are drafted should be encouraged to have the representative of their choice communicate directly with the club that drafted them, and assist in any negotiations. Experienced advisers can help players determine their fair-market value and protect them legally. To deny an athlete the right to retain such counsel is not just patently unfair, but patently unconstitutional.

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To read the rest, click here.

To read related coverage from Sports Law Blog, see Alan Milstein's "The NCAA is at it Again", Rick Karcher's "The NCAA's "No Agent" Rule Discriminates Against Baseball Players", and my post "Oliver v. NCAA ends in settlement". Other related posts include one on the NCAA Compliance Blog, one by Dan Fitzgerald on Connecticut Sports Law, one by Tassos Kaburakis on National Sports and Entertainment Law Society Blog, and one by Darren Heitner on Sports Agent Blog.

The Next NCAA President?

The next NCAA president will oversee the organization's policies in a number of controversial areas, including player rights to names and likenesses, a potential college football national championship playoff, and policies regarding the hiring of minority coaches.

News has begun to leak regarding potential candidates under consideration for the position. Bowling Green State University president Carol Cartwright appears to have taken herself out of the running. University of Georgia President and former NCAA executive committee chairman Michael Adams and Notre Dame Athletic Director Jack Swarbrick (a finalist for the job in 2002) are apparent candidates. Interim NCAA President James Isch isn't interested in being a "caretaker," and has suggested he does not want to take on the job permanently, though he may at some point emerge as a candidate.

Other reported candidates include NCAA executive VP Bernard Franklin and University of Michigan president Mary Sue Coleman.

New Sports Law Scholarship

Recently published scholarship includes:

Nadir S. Ahmed, Inclusionary seating: application of the principle of inclusionary zoning to stadium event ticket pricing, 16 SPORTS LAWYERS JOURNAL 301 (2009)

Manav K. Bhatnagar, Comment, Fantasy liability: publicity law, the First Amendment, and fantasy sports, 119 YALE LAW JOURNAL 131 (2009)

Peter Charlish, Dwain Chambers runs out of time, 10 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 57 (2008)

Colin J. Daniels & Aaron Brooks, From the Black Sox to the sky box: the evolution and mechanics of commissioner authority, 10 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 23 (2008)

Marc Edelman & Brian Doyle, Antitrust and “free movement” risks of expanding U.S. professional sports leagues into Europe, 29 NORTHWESTERN JOURNAL OF INTERNATIONAL LAW & BUSINESS 403 (2009)

Timothy Liam Epstein, Prep plus: evaluating the motivations for and effects of enrollment multipliers and other measures in high school sports, 10 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2008)

Matthew C. Garner, Time to move on? Franchise relocation in MLS, antitrust implications...and the hope that FIFA is not watching, 16 SPORTS LAWYERS JOURNAL 159 (2009)

Christopher Hatch, Note, Fourth and short on equality: the disparate impact of the NFL’s use of the Wonderlic intelligence test and the case for a football-specific test, 41 CONNECTICUT LAW REVIEW 1669 (2009)

Zachary Herlands, Note, Borden v. School District of the Township of East Brunswick: how the Third Circuit extended the separation of church and state to the football field, 16 SPORTS LAWYERS JOURNAL 333 (2009)

A. Jason Huebinger, Beyond the injured reserve: the struggle facing former NFL players in obtaining much needed disability assistance, 16 SPORTS LAWYERS JOURNAL 279 (2009)

David Hutson, Note, Paying the price for sports TV: preventing the strategic misuse of the FCC’s carriage regulations, 61 FEDERAL COMMUNICATION LAW JOURNAL 407 (2009)

F. Scott Kieff et al., It’s your turn, but it’s my move: intellectual property protection for sports “moves,” 25 SANTA CLARA COMPUTER & HIGHT TECH LAW JOURNAL 765 (2009)

Janine Young Kim & Matthew J. Parlow, Off-court misbehavior: sports leagues and private punishment, 99 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 573 (2009)

Joshua M. Kimura, The return of The Natural: how the federal government can ensure that Roy Hobbs outlasts Barry Bonds in Major League Baseball, 16 SPORTS LAWYERS JOURNAL 111 (2009)

Jeremiah Kline, Black and blue: an examination of trademarking university color schemes, 16 SPORTS LAWYERS JOURNAL 47 (2009)

Joshua M. Liebman, Tip your “cap” to the players: 2007-2008 off-season reveals NHL’s salary cap benefits on players, 16 SPORTS LAWYERS JOURNAL 81 (2009)

John G. Long, High standards for high school athletes: defamation law and tomorrow’s stars, 16 SPORTS LAWYERS JOURNAL 255 (2009)

Kevin Mahoney, Note, Learning from the mistakes of others: changing Major League Baseball’s substance abuse arbitration procedure, 24 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 613 (2009)

Neil M. Mazer, Homeruns and taxes: the IRS and its treasure trove regulation, 16 SPORTS LAWYERS JOURNAL 139 (2009)

Andrew T. Miragliotta, Note, Goldstein v. Pataki: down but not out, fifteen property owners stop the clock on Bruce Ratner’s eminent domain game, 16 SPORTS LAWYERS JOURNAL 319 (2009)

Robert F. Moore, The interaction between the Americans with Disabilities Act and drug and alcohol addiction in sports, 16 SPORTS LAWYERS JOURNAL 231 (2009)

Kimberly Jade Norwood. Adult complicity in the dis-education of the black male high school athlete & societal failures to remedy his plight, 34 THURGOOD MARSHALL LAW REVIEW 21 (2008)

Ross C. Paolino, Upon further review: how NFL Network is violating the Sherman Act, 16 SPORTS LAWYERS JOURNAL 1 (2009)

Jon Perrelle, Note, An opportunity of reform: Tennessee Secondary School Athletic Association v. Brentwood Academy and NCAA recruiting, 74 BROOKLYN LAW REVIEW 1213 (2009)

Geoffrey Rapp, Blue Sky steroids, 99 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 599 (2009)

Jeffrey Standen, The manly sports: the problematic use of criminal law to regulate sports violence, 99 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 619 (2009)

Steven Stewart, The development of sports law in the European Union, its globalization, and the competition law aspects of European sports broadcasting rights, 16 SPORTS LAWYERS JOURNAL 183 (2009)

Burgess Williams, Note, The fate of third party ownership of professional footballers’ rights: is a complete prohibition necessary, 10 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 79 (2008)

Tulane University School of Law Moot Court Mardi Gras Invitational: 2008 Competition, 16 SPORTS LAWYERS JOURNAL 353 (2009)

Tender Deadline and Additional Free Agents

Back on November 6, I offered an observation based on Buster Olney’s claim that many teams would not tender players by the December 12 deadline. Olney argued that this year many more players (he said he and executives had a list of 93 candidates) would be non-tendered and added to the free agent market. Well, the results are in. A total of 39 players were non-tendered - 17 in the American League and 22 in the National League. Of that number, 9 were not arbitration-eligible players (6 in the American League and 3 in the National League). A few signed quickly including some with their “old” team. Buster Olney offered some observations on his blog Sunday (“Slew of Signing Lie Ahead”). I got sucked in a bit with my earlier posting wondering if the predictions were going to be true. In Olney original article producing a different dynamic. The final results are pretty underwhelming. The increased number of non-tendered players is similar to the number from last year. Although there are many free agents on the market including recent non-tenders Chien-Ming Wang, Jack Cust, Ryan Church, Matt Capps, and Garrett Atkins, the stories usually make sense if you examine each case in its own context.