It's been rumored for a few weeks that former MLBPA executive director Donald Fehr, 62, is set to become the next executive director of the NHLPA. The latest is that he will indeed become director. Over on his blog, baseball attorney Jay Reisinger wonders why is it taking so long:
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The NHLPA has been a rudderless ship since Bob Goodenow resigned in 2005, and in my opinion, the only person that can right the NHLPA is Don Fehr.
Fehr was the executive director of the Major League Baseball Players Association for 27 years before he stepped down in 2009. Fehr was instrumental in making the MLBPA the most powerful union in sports. He guided the players through the collusion grievances of the late 1980’s (which resulted in an award of $280M to players) and the 1994-1995 strike. He also guided the players through CBA negotiations in 2002 and 2006, the first negotiations since 1970 that were achieved without a work stoppage.
More importantly, however, he built a union that was in touch with its members. He brought cohesion to the membership, and this cohesion enabled the MLBPA’s to successfully navigate their labor negotiations with MLB. Without the support of its members (support which Fehr and his protégées fostered), the MLBPA would not have fared as well as it did.
Fehr left the MLBPA in more than capable hands. This exemplifies another one of his skills; the ability to find, train and keep talented staff members that share his vision . . . the NHLPA has never had this kind of continuity. Its membership has never been as cohesive as the MLBPA’s, and its staff has never been as stable as the MLBPA’s. The current CBA, which is almost unconscionable from the players’ perspective, is a product of the NHLPA’s sustained instability, which has been exacerbated by the revolving door at the NHLPA’s offices.
It should be clear to the membership of the NHLPA that Fehr is not in this for the money. Fehr never took a salary of more than $1M during his tenure at the MLBPA, while other union leaders such as Billy Hunter (NBAPA) and Gene Upshaw (NFLPA), and even Ted Saskin, were making in excess of $2M. Fehr certainly earned a salary equal to or in excess of his peers, but he never took it. It should also be clear to the membership of the NHLPA that Fehr’s success was earned, not serendipitous, which means it can be recreated.
Personally, I do not think that Fehr’s request for $3M is representative of any financial desire or vanity. He has made his money. Rather, I think he believes that it is the only mechanism to ensure continuity at the NHLPA. With a higher salary (which is contractually guaranteed), the less likely he will be subject to the midnight coups that have felled some of his predecessors. . . .
To read the rest of this insightful piece, click here.
Our friend Roger Abrams, a professor and former dean of Northeastern University School of Law, has published a terrific book sure to be of interest to many readers on this blog: Sports Justice: the Law and the Business of Sports (University of New England Press, $35). Here's information on the book and endorsements from Harvard Business School Professor Stephen Greyser and me:
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An accessible guide to sports law highlighting landmark cases and personalities
Americans, brought up playing or watching sports, absorb the notions of fair play not simply as integral themes of sportsmanship on the field, but also as values they try to carry into their everyday lives. In this accessible and fascinating look at law and sports, Roger I. Abrams shines the lights on the uniquely complex and important legal issues that face both amateur and professional athletes. From cases involving Title IX, transgendered athletes, rights of the disabled, violence on the playing field, individual and franchise free-agency, amateurism and college sports, and responsibility of leagues for the safety and lifelong health of injured players, Abrams weaves a profoundly moving and immediately relevant story of ever broadening access to, and expanding rights within, the field of sports.
Abrams illuminates these legal cases through compelling storytelling and personal explorations of those involved, such as Jeremy Bloom, the world champion mogul skier who was barred from playing college football because he had modeled clothes for Tommy Hilfiger, and Casey Martin, Renee Richards, and the young gymnasts from Brown University who sought access to the sports they loved, but found that their quest to achieve justice required judicial intervention. There is also one non-athlete: Al Davis, the renegade owner of the Oakland–Los Angeles–Oakland Raiders, who beat the National Football League cartel using the antitrust laws in his effort to gain the respect he was always denied.
Written for sports fans and legal scholars alike, this is an engrossing and surprising story of people battling for their careers and lives, and in the process changing the very nature of sports and society.
Endorsements:
“In Sports Justice, Roger Abrams offers a compelling and dynamic analysis of major sports law controversies over the last century. Abrams reveals how these controversies underscore broader conceptions of justice and how those conceptions, like sports, evolve over time. Through an interdisciplinary approach, Sports Justice offers readers invaluable insight into the relationship between sports disputes and fundamental notions of fairness. Sports, as Abrams convincingly details, reflect as much about social attitudes as they do about the games that are played.”—Michael McCann, professor, Vermont Law School; legal analyst and SI.com columnist, Sports Illustrated
“Both students and practitioners in the legal and business areas of sports can enjoy and learn from Sports Justice. Deeply grounded in law and relevant to the business of sports, it combines insights and information about issues across the realm of sports—from gender equality in sports competition to franchise relocation to player free agency—that will interest those who manage, participate in, and follow sports.”—Professor Stephen A. Greyser, Harvard Business School, creator of Harvard’s Business of Sports course
For more information on Sports Justice, click here.
Last year I wrote about Glen "Big Baby" Davis's weight clause with the Boston Celtics. Davis, who is in the middle of a 2-year, guaranteed $5 million contract, can earn an additional $500,000 each year if he avoids exceeding a certain weight (he earned it in his first season).
The Lakers are now using the same device with rookie Derrick Caracter, a power forward/center who was the Lakers second round pick (#58 overall) in the 2010 Draft and whose commitment to conditioning has been questioned in the past:
The Lakers signed rookie Derrick Caracter to a $473,000 contract for the 2010-11 season that will become fully guaranteed if he weighs 275 pounds or less on Sept. 10.
Currently, Caracter is only guaranteed $250,000.
3 things about Caracter's weight clause stand out to me:
1) The high value of Caracter's weight clause relative to the guaranteed portion of his contract: Caracter can nearly double his salary if he avoids weighing too much. Talk about an incentive to stay in shape! Think about your income and the opportunity to nearly double it if you merely stay in shape. I doubt our country would have the obesity epidemic it currently suffers from if weight had such a direct impact on our earnings.
2) Unlike with Davis, whose contract is worth between $5 and $6 million depending on his weight, Caracter will not become a millionaire through his deal. To be sure, $250,000 is great money for 98% or 99% of the U.S. population--according to the 2005 census, only 1.5% of American households earn $250,000 or more per year--but he's far from being considered a "rich" pro athlete. I think it's also safe to assume that as a player who will have to fight to keep an NBA roster spot, his future income as a professional basketball player is uncertain and his endorsement potential is pretty low, if not 0, at this point. So the difference in Caracter earning $250,000 and $473,000 this year may be more meaningful for his life than the life difference for Davis--who is poised to have a fairly long NBA career--in earning $5 million, $5.5 million, or $6 million in 2009-10 and 2010-11.
3) Is weight an accurate measure for determining whether an NBA player is in good shape, when pro athletes with a lot of muscle may technically be "overweight"? As I note in my Wisconsin Law Reviewarticle on nutritional labeling, 43 out of the 50 baseball Red Sox and Cardinals players who played in the 2004 World Series were technically overweight. Some advocate using Body Mass Index (BMI) instead of weight, as it considers body fat. But NBA teams apparently view weight as an adequate measure.
Update 2: An agent emails me some interesting thoughts that tie in the role of collective bargaining:
Setting aside the initial issue of whether an all-or-nothing weight clause is even fair, I agree that the use of weight as the deciding factor is less than ideal. What I find interesting is that BMI is probably not any better -- especially in the NBA, where players are far taller than average. Apparently the taller you are, the less accurate BMI becomes:
"the standard Body Mass Index (BMI) is inherently flawed because it assumes that a body's mass increases as the square of the height. Generally mass increases with the cube of the linear dimensions, so a formula using the square will skew to higher BMI's for tall people."
I'm a lawyer, not a scientist, so I can't say how true that is, but it highlights one of the challenges I've found with drafting player contracts, even in this sabermetric era: flawed metrics are often the only ones that can be included in a contract. More accurate measures tend to resemble a pay-for-play situation that neither side has an interest in promoting, thanks to the incentive problems it would create.
I suspect that with Caracter's contract, both sides know that measures other than mere weight would more accurately assess the underlying concern -- whether that's BMI, body fat percentage, or something else -- but weight is the metric that they can get approved under the CBA, so it's what they use.
Update 3: Jimmy Golen of the Associated Press offers some thoughtful comments:
I think the point is that, whether or not weight is the ideal metric for deciding players generally are in shape, you could certainly come up with an ideal weight, or a reasonable playing weight, for an individual that could be used to judge his conditioning. In other words, the team could be saying that Caracter is in better shape at 275 than whatever he weighed when he signed the deal, so they wanted to entice him to lose weight (or, theoretically, gain some).
More to the point: Your suggestion of BMI is moot, because it measures weight as related to height, so unless we think Caracter is still growing (or shrinking), asking him to make weight is the same thing as setting a certain BMI as a goal.
We've seen plenty of fights in the stands of baseball, basketball, hockey, and football games, but people who attend tennis matches are often stereotyped as civil or "proper", at least while they are in the tennis stadium (e.g., patrons are expected to be quiet while the match is in play).
That stereotype didn't seem to hold up in the grandstands of Arthur Ashe Stadium (Flushing Meadows, New York) at the U.S. Open last Thursday night, when a male fan insisted on being able to say the "f" word because he paid for a ticket and because he had "a lot of money on the game", while a female fan told him to "shut up" and threatened to have him thrown out of the stadium because of his language, which she deemed inappropriate or abusive. He responded that he wasn't using the "f" word during the actual play, only after each play had ended. She apparently slapped him or tapped him in the face as a way of encouraging him to stop. The argument, which would eventually cause a match between Novak Djokovic and Phillip Petzschner to stop, escalated into a fight between the man and a person described as the woman's father.
Here is a video of the argument and the fight, which starts at about 1:13 -- please note, the "f" word is used about 50 times in 2 minutes, so if you are offended by it, don't watch the video:
Here is the aftermath, courtesy of Robert Dougherty of Associated Content:
Eventually, the US Open fight ended with all three participants being led off in handcuffs. They were not actually arrested, but they were banned from attending any tennis matches in Flushing Meadows for three years.
Although they are not in any trouble from the police, the participants are now out to hurt each other in court. The three are filing civil harassment lawsuits against each other, not long after the evidence of their US Open fight hit YouTube.
Here are a few thoughts of mine:
1) I wonder if the participants might eventually face criminal charges, given the rather compelling Youtube evidence suggesting they committed battery; their physical contact was clearly neither accidental nor necessary and it probably endangered the safety of people seated around them. The video of the fight was not, from what I can tell, immediately available to police -- if the police had the video at the time they detained the participants, the participants probably would have been arrested.
2) I wonder about how crowd control measures during tennis matches differ from those taken to monitor the crowds of other sporting events. Along those lines, could the U.S. Open end up a party to civil litigation for arguably not providing adequate safety? Why didn't security officers show up? How physically close were they? How close should they have been?
3) Not to "blame the victim" and hindsight is of course 20/20, but instead of confronting this belligerent guy, might the female fan and her father, and probably others around them, have been better off alerting stadium security? Getting in his face, and possibly slapping/tapping him, probably weren't the best ways of encouraging him to stop swearing. Then again, maybe they tried to find security and couldn't.
4) If he was truthful in claiming that he was not swearing during the actual play, but only between plays, was he necessarily breaking any stadium rules? Does the volume of his swearing matter?
The National Football League Players' Association is reportedly looking into whether teams are trading rookie players who would be cut in order to avoid cutting them themselves and having to pay 85% of the player's salary. If they are doing that, they could be deemed to be colluding, which generally means two or more teams acting in a way to deprive players of collectively-bargained rights. The NFL-NFLPA collective bargaining agreement contains anti-collusive language under Article XXVIII. Here's more on the allegation:
In a pair trades on Monday, Washington sent 6th round draft pick tight end Dennis Morris to St. Louis for a conditional pick and the Rams sent 5th round pick defensive end Hall Davis to the Redskins for a conditional pick. On the same day, Philadelphia traded 6th round pick running back Charles Scott to Arizona for 6th round pick cornerback Jorrick Calvin.
Under collective bargaining rules, if a player is cut by the team that drafted him, that team is required to pay 85 percent of that player's salary into a pool that is distributed at the end of the season.
The Washington Redskins may have gotten up to some hijinks with their trade involving recently-cut defensive lineman Hall Davis and a prior trade involving tight end Dennis Morris. According to Chris Mortensen of ESPN, both the Redskins and the St. Louis Rams are under investigation by the NFLPA for attempting to circumvent the little-known "85 percent" rule.
In layman's terms - any rookie that is drafted by an NFL team is owed 85 percent of his salary if subsequently cut by the team which drafted him. By trading Davis to the Redskins, and having him cut by Washington rather than St. Louis, the Rams save $272,00. Further, the Redskins will save the same $272,000 dollars owed to Morris, who was traded to the Rams earlier in the week and is also expected to be cut.
Might this be collusion by NFL teams to avoid paying salaries -- and salaries of obscure rookie players who when cut attract minimal media attention and who individually may not have much influence on the Players' Association? Or is it just a case of a bunch of late round picks -- whose chances for making any team are likely low -- simply not being good enough to make an NFL team?
John Gibeaut of the American Bar Association Journal examines how the scandal involving Tiger Woods and infidelity will impact the use and enforcement of morals clauses in endorsement contracts. Below are excerpts from his piece, which includes comments from Peter Carfagna, Brian Socolow, and me, as well as from Porcher Taylor III and Fernando Pinguelo, both of whom recently authored the excellent article The Reverse-Morals Clause: The Unique Way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals, Cardozo School of Law's Arts & Entertainment Law Journal (2010).
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Morals clauses went largely unquestioned for decades, even during the McCarthy era, when studios used them to fire writers accused of being Communists. Nearly a century later, morals clauses have become ubiquitous in the sports and entertainment industries, as sponsors continue to use them to alter or sever relationships with errant celebrities they hire to hawk everything from breakfast cereal to razor blades.
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Woods isn't the first celebrity whose personal behavior has landed him crosswise with sponsors, and he's unlikely to be the last. Others recently caught up in their own conduct and who paid varying prices for it include Los Angeles Lakers guard Kobe Bryant, charged in a rape case that was later dismissed; Philadelphia Eagles backup quarterback Michael Vick, convicted and sent to prison for running a dogfighting ring; British supermodel Kate Moss, caught snorting cocaine on camera; and Olympic swimmer Michael Phelps, also caught on film—hitting a marijuana bong. Nevertheless, Woods' major-league cheating really scratched some raw nerves.
"It's the image of perfection that's not true," says Vermont Law School professor Michael McCann, also a legal analyst for the magazine Sports Illustrated.
Early morals clauses essentially were non-negotiable adhesion terms that left celebrities no wiggle room. But they may have contained as much bark as bite.
"These clauses would be standard, but very little attention was paid to them," says Bridgewater, N.J., practitioner Fernando M. Pinguelo. "Now I'm finding that they're not only negotiated more but being drafted more carefully in favor of the company."
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The presumption of innocent until proven guilty almost has been reversed, and sponsors almost assume something is going to happen," says Cleveland lawyer Peter A. Carfagna, who represents athletes. "And what is disrepute? They want it to be in the eye of the beholder. And they want to be able to cancel the next day, without benefit of a court proceeding."
The more specific the clause, practitioners say, the better off each side comes out. For example, a sponsor may insist on cancellation in the event of any arrest, while a celebrity may try to push the line back to, say, an indictment or conviction for a felony. Noncriminal conduct, such as marital infidelity, is an especially touchy issue.
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To read the rest of this extensive article, click here. This topic was the subject of a symposium at Cardozo Law School in March titled The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses.
Professor Mitchell N. Berman of the University of Texas School of Law has posted a new essay that may be of interest to some readers. ‘Let ‘em Play’: A Study in Sports and Law considers the potential arguments regarding whether officials should call infractions less strictly during the end of a close match than throughout the rest of the game.
The abstract for the essay is below:
Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.
Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.
This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.
If you'd like to read the essay in its entirety, it is available to be downloaded here.
It's been rumored for a few weeks that former MLBPA executive director Donald Fehr, 62, is set to become the next executive director of the NHLPA. The latest is that he will indeed become director. Over on his blog, baseball attorney Jay Reisinger wonders why is it taking so long:
