New Sports Law Scholarship

Recently published scholarship includes:

Alejandro Bautista, Comment, College football’s serial murderer: sickle cell trait, 21 MARQUETTE SPORTS LAW REVIEW 403 (2010)

Elizabeth Blakely, Comment, Dewey Ranch and the role of the bankruptcy court in decisions relating to the permissible control of the national sports leagues over individual franchise owners, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 105 (2011)

Erin E. Buzuvis, Transgender student-athletes and sex-segregated sport: developing policies of inclusion for intercollegiate and interscholastic athletics, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2011)

Julia Brighton, Note, The NCAA and the right of publicity: how the O’Bannon/Keller case may finally level the playing field, 33 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 275 (2011)

Andrew B. Carrabis, Strange bedfellows: how the NCAA and EA sports may have violated antitrust and right of publicity laws to make a profit at the exploitation of intercollegiate amateurism, 15 BARRY LAW REVIEW 17 (2010)

Scott R. Chandler, Whose right is it anyway?: how recent cases and controversies have blurred the lines between First Amendment protection and an athlete’s right of publicity, 21 MARQUETTE SPORTS LAW REVIEW 315 (2010)

Emily J. Cooper, Note, Gender testing in athletic competitions—human rights violations: why Michael Phelps is praised and Caster Semenya is chastised, 14 JOURNAL OF GENDER RACE & JUSTICE 233 (2010)

Jeremy H. Danney, Comment, Sacking CEQA: how NFL stadium developers may have tackled the California Environmental Quality Act, 19 PENN STATE ENVIRONMENTAL LAW REVIEW 131 (2011)

Carolyn Davis, Note, Leave it on the field: too expansive approach to evaluating Title IX compliance in Biediger v. Quinnipiac University, 76 BROOKLYN LAW REVIEW 265 (2010)

Chris Deubert, What’s a “clean” agent to do? The case for a cause of action against a player’s association, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

Joseph F. Dorfler, Casenote, America’s Cup in America’s court: Golden Gate Yacht Club v. Société Nautique De Genève, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 267 (2011)


Adam Epstein, An Exploration of Interesting Clauses in Sports, 21 JOURNAL OF THE LEGAL ASPECTS OF SPORT 1 (2011)

David Feingold, Who takes the heat? Criminal liability for heat-related deaths in high school athletics, 17 CARDOZO JOURNAL OF LAW & GENDER 359 (2011)

Laurie C. Frey, Comment, They aren’t who we thought they were: the importance of genetic testing in Major League Baseball to prevent the falsification of players’ ages, 21 MARQUETTE SPORTS LAW REVIEW 425 (2010)

Jorge E. Leal Garrett & Bryan A. Green, Considerations for professional sports teams contemplating going public, 31 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW 69 (2010)

Anthony G. Galasso, Jr., Note, Betting against the House (and Senate): the case for legal, state-sponsored sports wagering in a post-PASPA world, 99 KENTUCKY LAW JOURNAL 163 (2010-2011)

Jeremy Goff, Book note, Reviewing Eileen McDonagh and Laura Papano, Playing With the Boys: Why Separate is Not Equal in Sports, 21 MARQUETTE SPORTS LAW REVIEW 449 (2010)

Martin J. Greenberg & Bryan M. Ward, Non-relocation agreements in Major League Baseball: comparison, analysis, and best practice clauses, 21 MARQUETTE SPORTS LAW REVIEW 7-137 (2010).

Thomas A. Hamilton, The long hard fall from Mount Olympus: the 2002 Salt Lake City Olympic Games bribery scandal, 21 MARQUETTE SPORTS LAW REVIEW 219 (2010)

Alan J. Hart, Comment, Barry Bonds and the Baseball Hall of Fame: is it in the “best interest of baseball”?, 40 SOUTHWESTERN LAW REVIEW 175 (2010)

Matthew J. Jakobsze, Comment, Kicking “single-entity” to the sidelines: reevaluating the competitive reality of Major League Soccer after American Needle and the 2010 Collective Bargaining Agreement, 31 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW 131 (2010)

Noel Johnson, Tinker takes the field: do student athletes shed their constitutional rights at the locker room gate?, 21 MARQUETTE SPORTS LAW REVIEW 293 (2010)

Richard T. Karcher, Rethinking damages for lost earning capacity in a professional sports career: how to translate today’s athletic potential into tomorrow’s dollars, 14 CHAPMAN LAW REVIEW 75 (2010)

Kristen E. Knauf, Shades of gray: the functionality doctrine and why trademark protection should not be extended to university color schemes, 21 MARQUETTE SPORTS LAW REVIEW 361 (2010)

Dionne L. Koller, Not just one of the boys: a post-feminist critique of Title IX’s vision for gender equity in sports, 43 CONNECTICUT LAW REVIEW 401 (2010)

Jaime Koziol, Note, Touchdown for the union: why the NFL needs an instant replay in Williams v. NFL, 9 DEPAUL BUSINESS & COMMERCIAL LAW JOURNAL 137 (2010)

Meredith Lambert, Comment, The competing justices of clean sport: strengthening the integrity of international athletics while affording a fair process for the individual athlete under the world anti-doping program, 23 TEMPLE INTERNATIONAL & COMPARATIVE LAW JOURNAL 409 (2009)

Andrew Medeiros, Book note, Reviewing Jim Squires, Headless Horsemen: A Tale of Chemical Colts, Subprime Sales Agents, and the Last Kentucky Derby on Steroids, 21 MARQUETTE SPORTS LAW REVIEW 445 (2010)

David Marck, Comment, Necessary roughness?: an argument for the assignment of criminal liability in cases of student-athlete sustained heat-related deaths, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 177 (2011)

Steven Masur, Collective rights licensing for Internet downloads and streams: would it properly compensate rights holders?, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 39 (2011)

Lauren McCoy, 140 characters or less: maintaining privacy and publicity in the age of social networking, 21 MARQUETTE SPORTS LAW REVIEW 203 (2010)

W.S. Miller, Changing playing fields: the sports attorney’s obligation to learn green, 21 MARQUETTE SPORTS LAW REVIEW 139 (2010)

Mitchell Nathanson, Truly sovereign at last: C.B.C. Distribution v. MLB AM and the redefinition of the concept of baseball, 89 OREGON LAW REVIEW 581 (2010)
Alex Porteshawver, Under review: stadium construction and state environmental policy acts, 21 MARQUETTE SPORTS LAW REVIEW 339 (2010)

Jo Potuto & Jerry R. Parkinson, If it ain’t broke, don’t fix it: an examination of the NCAA Division I Infractions Committee’s composition and decision-making process, 89 NEBRASKA LAW REVIEW 437 (2011)

Joshua A. Reece, Note, Throwing the red flag on the commissioner: how independent arbitrators can fit into the NFL’s off-field discipline procedures under the NFL collective bargaining agreement, 45 VALPARAISO UNIVERSITY LAW REVIEW 359 (2010)

Kristi L. Schoepfer & Mark Dodds, Internships in sport management curriculum: should legal implications of experiential learning result in the elimination of the sport management internship?, 21 MARQUETTE SPORTS LAW REVIEW 183 (2010)

John K. Tokarz, Comment, Involuntary servants: the NCAA’s abridgement of student-athletes’ economic rights in perpetuity violates the Thirteenth Amendment, 2010 WISCONSIN LAW REVIEW 1501

Brittany Van Roo, One trilogy that should go without a sequel: why the baseball antitrust exemption should be repealed, 21 MARQUETTE SPORTS LAW REVIEW 381 (2010)

Benjamin S. Weisfelner, Comment, Reverse slam dunk: making the case that the National Basketball Association’s minimum age requirement violates state discrimination laws, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 203 (2011)

Marie-France Wilson, Young athletes at risk: preventing and managing consequences of sports concussions in young athletes and the related legal issues, 21 MARQUETTE SPORTS LAW REVIEW 241 (2010)

Glenn M. Wong, & Chris Deubert, National Basketball Association general managers: an analysis of the responsibilities, qualifications and characteristics, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 213 (2011)

Laura A. Zaccone, Note, Policing the policing of intersex bodies: softening the lines in Title IX athletic programs, 76 BROOKLYN LAW REVIEW 385 (2010)

Roundtable on OSU scandal

USA Today columnist Christine Brennan and I were the guests yesterday on a local Toledo ABC Sunday talkshow, Roundtable with Jeff Smith. The topic for the day was the ongoing Ohio State University football scandal, with particular attention to the jaw-dropping SI story. For Howard's comments from last week, see this post.

Another take on the NFL oral argument

My PrawfsBlawg (and former SLU) colleague Matt Bodie attended today's oral argument in Brady v. NFL (an advantage to living in St. Louis) and offers his thoughts here.

New Sports Illustrated Column: What Did We Learn from Today's Oral Arguments?

I have a new column for SI on what we learned from today's oral arguments by Paul Clement (for the NFL) and Ted Olson (for the players). 

New Sports Illustrated Column: A Preview of Tomorrow's Big Court Hearing for the NFL and its Players

Here's an excerpt of my new SI column on tomorrow's hearing before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit:

* * *

Expect oral arguments on the Norris-LaGuardia Act to dwell on whether certain words contained in the Act should be read literally or expansively. The arguments will also offer conflicting accounts of how Congress, which passed the Act during the height of the Great Depression in 1932 and undoubtedly without a second's thought to its potential application to disputes between billionaire team owners and millionaire players, intended the Act to be used.

The two sides will also contest whether the NFLPA's decertification was a sham. If, as the players contend, the NFLPA no longer represents them, and if the sides are no longer bargaining in good faith, then the federal labor exemption, which insulates collectively bargained rules from antitrust review, would no longer apply. Although the NLRB, and not the three-judge panel, will determine whether the NFLPA's decertification was legitimate or a sham, the panel likely will link its ultimate decision to its views on that subject.

* * *

To read the rest, click here. For an interview with Rex Snider of Baltimore WNST, click here.

Catching up with Links

* Marquette Law and University of Virginia School of Law sports law professor Gordon Hylton, who is also a distinguished legal historian, has written an outstanding essay titled Walter Kowalski: A Forgotten Man in the Legal History of Sport. Kowalski was a minor league player whose 1951 lawsuit against Organized Baseball (an alliance that included the big leagues and most of the minor leagues) and the antitrust exemption for baseball reached the United States Supreme Court along with the action filed by fellow minor-leaguer George Toolson in 1953. Gordon's essay discusses Kowalski's career along with the details and significance of his legal challenge. A must read.

* USA Today's Michael McCarthy has an excellent preview of the upcoming NBA labor crisis.

* The Super Bowl ticket lawsuit continues, but as Eric Aasen of the Dallas Morning News writes, don't expect it to go anywhere.

* Both Celtics Blog and Celtics Life write about Celtics backup center Nenad Kristic, who will become a free agent on July 1, thinking about signing with a Russian team before other NBA players turn to the international market should the NBA lockout out the players.  Looks like Kristic (who is from Serbia) might be trying to beat the lockout labor market -- a market that could see NBA players competing for a finite number of slots for American players in international basketball leagues.

* Dan Fitzgerald of the excellent Connecticut Sports Law Blog writes about the possibility of Hartford, like Winnipeg (which will get the Atlanta Thrashers after losing the Jets several years ago), getting another NHL team.  I hope Hartford gets another shot - it would be good for New England hockey and restore Hartford's hockey rivalry with the Rangers, Islanders and Bruins.

* Lews and Clark Law School professor Tung Yin has a provocative piece titled A Modest Proposal for Dealing with Corruption in College Sports.  Here's an excerpt:

Here’s my proposal for addressing those two points completely:

1. Schools can pay their student-athletes whatever they want, but they must report the wages transparently, with no under-the-table payments. 
2. In order to normalize the impact of high wage vs. low wage teams, as well as to take into account the “student” side of student-athletes, all game scores will be adjusted by the Wage Differential Ratio and the SAT Score Differential Ratio.

The Wage Differential Ratio

We will consider the minimum wage paid to a student-athlete to be $10/hour, even if the player in question actually receives less than that.

During every game, there will be a time-weighted average salary for each team. The more minutes that a given player is in the game, the more his salary counts towards the team’s average salary. We then take a ratio of the two teams’ average salary, and adjust the game score accordingly.

For example, say that at half-time, rich USC has a time-weighted average salary of $150/hour, while poor UCLA has a time-weighted average salary of $25/hour. The ratio is 6:1, so we would multiply UCLA’s score by 6 for the adjusted half-time score.

To read the rest of Professor Yin's article, click here.

Thoughts on The Ohio State University

Some random thoughts on Ohio State (even if, as a Northwestern fan, I am enjoying a wee bit of schadenfreude):

1) I read Zach Lowe's piece linked by Mike connecting this scandal to the NBA age limit, but I do not buy the connection.  Whatever the merits of allowing more players to go pro right away and therefore incentivizing more players to do so (either straight to the big leagues or into some professional minor league system), is not going to change the fact that improper benefits are going to be spread around to the players that do go to college. Especially since, as Lowe points out, only the "tiniest subset" of players are able to go straight to the NBA--and an even tinier subset would be able to go straight to the NFL. There are always going to be star players who go to college or players who, in college, become stars. And as long as college football and basketball continue to be popular as sports, boosters and others will continue to be on the scene and players will still get cars, tattoos, cash, etc. In fact, we still would have the current case. Other than Aaron Terrelle Pryor, would any of the other five suspended players have been able to skip college? Probably not. For that matter, were any of the other five stars?

The issue is not, as Lowe argues, that we are "forc[ing] this pseudo-amateurism on players who don’t want it." A lot of players will still choose college, especially if the choice is between college and NBDL or overseas. But pseudo-amateurism remains and that is the issue across the board. So might this be the final straw, the one that makes people push to change a broken system?

2) Ohio State is in some trouble. Their narrative right now is that this is a problem with a few players and the coach and by suspending the players accepting (and perhaps even forcing) Tressel's resignation, the problem has been resolved. But there is an institutional component to this. OSU conducted an investigation that found only six players had received benefits for merchandise, a conclusion contradicted by the Sports Illustrated story, which said as many as 28 players had received similar benefits over the past nine years. This might suggest that the internal investigation was, at best, poorly done, and, at worst, a cover-up. Plus attention is now turning towards other benefits given to players, most notably access to cars. This suggests the issue of players receiving benefits goes much deeper. At what point does this reach the institution--namely AD Gene Smith and President E. Gordon Gee.

3) It is ironic that Gee should be at the heart of a mess like this. He has an enjoyed a great deal of success as an administrator at several universities, including Colorado, Brown, Vanderbilt, and Ohio State twice. He is perhaps best known for eliminating the independent athletics department and the position of athletics director at Vanderbilt, bringing intercollegiate athletics within the Division of Student Life, a move he pushed precisely to ensure greater institutional control over sports teams and the elimination of what he called "semi-autonomous fiefdoms." Controversial at the time, the move has proven to be very successful for Vanderbilt.

Yet when Tressel admitted to lying about his knowledge of the benefits and was suspended in March, Gee responded to the question of whether he had considered firing Tressel by saying "Are you kidding? I'm just hopeful the coach doesn't dismiss me." That reflects a very different--and unfortunate--attitude towards college sports, but one that recognized the realities of OSU, as opposed to Vanderbilt.

If Gee loses his job over this (or even if he doesn't), it will be unfortunate that someone who tried something radical and creative to make the system work, and who recognized that the system needed some creative changes, has been undermined by everything that is wrong with the system.