More Amicus Briefs in American Needle v. NFL

Last Tuesday was the deadline for amicus curiae briefs supporting the NFL in American Needle v. NFL. A number of supporting briefs were filed with the Supreme Court, and are now available for download:

• A brief by the National Hockey League, available here.
• A brief by the National Basketball Association and NBA Properties, available here.
• A brief by the NCAA, available here.
• A brief by the ATP Tour, WTA Tour, Major League Soccer, and NASCAR, available here.
• A brief by various economists in support of the NFL, available here.
• A brief by Visa and Mastercard, available here.
• A brief by Electronics Arts, Inc., available here.
• A brief by VF Imagewear, Inc., available here.

Unfortunately, a copy of the NFL's brief has still not been made publicly available for downloading, as far as I have been able to discern. However, the brief is now available on LexisNexis, for those with access to its Supreme Court briefs database.

Tiger Woods Brings to Light the Privacy Rights of Public Figures

Eric Zorn of the Chicago Tribune wrote an interesting post titled, Up in Tiger's Business: Is it Our Right to Know? Zorn writes that many of us may want to know what precipitated the weird, low-speed crash outside Tiger Woods' home very early Saturday. But he raises the question whether we have the informal right to know. Zorn makes an excellent point:

The implicit bargain of modern celebrity is that it's a battle between the image makers and the image wreckers -- the celebrity is no longer able to draw lines between public and private that the public will respect.

With athletes this is less true than with, say, actors. Tiger Woods' ability to earn millions of dollars in tournament prize money every year is not dependent on what you or anyone else thinks of him. For the most part he has avoided making his private life public and kept the journalistic focus on matters related to golf. His endorsement deals trade on his enormous talent and legendary focus on the links, not on whether or not he's a jolly paterfamilias.

Zorn is articulating in layman's terms the legal test that I propose (in my article Tort Law and Journalism Ethics) for public disclosure of private facts claims involving public figures, which I discussed in my post last week.

The Give Blog

University of Illinois Law Professor Suja Thomas, who teaches sports law, and her husband Scott have created the Give Blog, where up until December 24th they will match donations of up to $100 from new donors to five charities (The Hunger Project, The Grameen Foundation, Safe Passage, Catcholic Charities USA, and Eastern Illinois Foodbank). If you're interested in contributing to any of these five charities during this holiday season, please consider doing so through the Give Blog, as Suja and Scott will match the amount if you are a new donor. For more information, click here.

2010 AALS Sports and the Law Section Meeting and Panel

For those of you attending the Association of American Law Schools' 2010 annual meeting in New Orleans in January, Villanova Law Professor David Caudill, the Chair of the AALS Section on Sports and the Law, invites you to attend this year's section meeting and panel, which will be held from 1:30 to 3:15 p.m in the Elmwood Room (3rd Floor) of the Hilton New Orleans Riverside.

Below are details on the section's events:

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THE TOPIC: THE NEW NFL/NFLPA COLLECTIVE BARGAINING AGREEMENT: AVOIDING A CATASTROPHE?

OVERVIEW: When the NFL opted out of the current collective bargaining agreement with the NFLPA, the stage was set for contentious negotiations during the 2009 season and potentially beyond. A labor-related stoppage or lockout could result from a failure to come to terms. The topic for this year’s sports law panel will be the present state of labor negotiations within the NFL. The NFL owners will likely predict an economic crisis if the players make unreasonable demands in terms of percentage of revenue, salary cap, bonus provisions, and the rookie wage scale, while the players’ union will likely claim that the owners never had it so good. Perhaps the real Super Bowl for sports lawyers will take place around the bargaining table this year.

PROGRAM: To open the program, Professor Robert H. Topel, the Isidore Brown and Gladys J. Brown Professor in Urban and Labor Economics at the University of Chicago’s Booth School of Business, will discuss his controversial study (co-authored with Chicago colleague Professor Kevin Murphy), on behalf of the NFLPA, of the economics of the NFL. What was the NFL’s response to the study? Has the recession altered any of the conclusions of that study?

Next, three law professors will address various aspects of the NFL/NFLPA labor controversy:

Professor Emeritus Bob Berry (Boston College): “Show Me the Money Revisited: The Current NFL Labor Conundrums”.

In the past, dating from the 1960s to the 1990s, NFL labor confrontations often concentrated on player mobility issues. The draft, free agency and free agent compensation were contentious issues, resulting in work stoppages on more than one occasion. This year is different, or seems to be. Pure economic issues appear to be largely the basis of the current negotiations. The question is, however, whether anything has really changed. Has it always been about the money? An even more basic issue is why at this time there is already talk of a lockout and a possible attempt at union decertification. While all these are brewing, we might as well revisit possible antitrust issues under the labor exemption.

Professor Matt Mitten (Marquette): “Drug testing and Sports Medicine Issues in NFL Collective Bargaining: A Proposed Quid Pro Quo.”

Specific issues to be discussed: (1) NFL clubs’ characterization of team physicians as “employees” in effort to bar players’ medical malpractice claims by the worker’s compensation co-employee doctrine; and (2) the 8th Circuit’s recent Williams v NFL decision, which permits the NFL’s collectively bargained drug testing policy to be challenged on the ground it violates Minnesota state law.

Professor Jeff Standen (Willamette): “American Needle and the Threat of Union Decertification”

This paper argues that the American Needle case currently pending before the U.S. Supreme Court will impact heavily on the upcoming labor negotiations. If the NFL prevails in its argument that the league constitutes a "single entity" for all or certain legal purposes, then a chief NFLPA bargaining tactic, the threat of union decertification, would be unavailable. Decertifying the players union arguably strips the NFL's bargaining agent of its non-statutory labor exemption and exposes the league to antitrust liability. If the NFL, however, is characterized by the Supreme Court as a single entity, then the league would be effectively immune from antitrust claims. The paper suggests that the Court should adopt a nuanced perspective on the single entity theory in order to preserve the ability of the union to resort to judicial redress.

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It should be a great event and I look forward to attending.

The Free Agents and Important December Deadlines

Last week, 171 players filed for free agency by the November 19 deadline. Of that group, there are 23 Type A free agents and 49 Type B free agents. John Grabow, a Type A free agent, and the Chicago Cubs have already agreed to a new 2-year, $7,500,000 deal. Now the December 1 and December 7 deadlines are quickly approaching. The teams have until December 1 to offer arbitration to protect their right to receive compensation if the player accepts a deal with another team. The December 7 deadline is the last date that a player can agree to accept an offer of arbitration from his former team. If the arbitration agreement is offered and accepted, the team and player will either work out an agreement on salary or proceed into the arbitration process that can involve the exchange of figures and a hearing.

Two players, Darren Oliver and David Weathers, agreed to accept arbitration offers last year. Oliver is a Type A free agent this off-season. Weathers moved from the Reds to the Brewers during the season, and he is a Type B free agent this year.

Two more important December events are the Winter Meetings in Indianapolis from December 7-10, and the tender deadline of Saturday, December 12. As I mentioned in an earlier post, there is some thought that many arbitration-eligible players will not be tendered, thus, increasing the number of free agents on the market. Recently, Scott Boras questioned the financial situation in baseball and wondered about teams that maintain really low budgets in the face of the current revenue stream from the centrally shared resources. It could be a really interesting off-season.

Here is the list of Type A and Type B free agents:

Type A

Jason Bay (Boston - OF), Rafael Betancourt (Colorado - RP), Orlando Cabrera (Minnesota - SS), Johnny Damon (New York Yankees - OF), Octavio Dotel (Chicago White Sox - RP), Jermaine Dye (Chicago White Sox - OF), Chone Figgins (Los Angeles Angels of Anaheim - 3B), Mike Gonzalez (Atlanta - RP), John Grabow (Chicago Cubs - RP), Kevin Gregg (Chicago Cubs - RP), LaTroy Hawkins (Houston - RP), Matt Holliday (St. Louis - OF), Orlando Hudson (Los Angeles Dodgers - 2B), John Lackey (Los Angeles Angels of Anaheim - SP), Bengie Molina (San Francisco - C), Darren Oliver (Los Angeles Angels of Anaheim - RP), Placido Polanco (Detroit - 2B), Marco Scutaro (Toronto - 2B/SS), Rafael Soriano (Atlanta - RP), Miguel Tejada (Houston - SS), Jose Valverde (Houston - RP), Billy Wagner (Boston - RP), and Randy Wolf (Los Angeles Dodgers - SP).

Type B

Garret Anderson (Atlanta - OF), Rod Barajas (Toronto - C), Erik Bedard (Seattle - SP), Joe Beimel (Colorado - RP), Ron Belliard (Los Angeles Dodgers - 2B), Adrian Beltre (Seattle - 3B), Chad Bradford (Tampa Bay - RP), Doug Brocail (Houston - RP), Marlon Byrd (Texas - OF), Kiko Calero (Florida - RP), Michael Cameron (Milwaukee - OF), Doug Davis (Arizona - SP), Mark De Rosa (St. Louis - 3B), Carlos Delgado (New York Mets - 1B), Justin Duchscherer (Oakland - SP), Scott Eyre (Philadelphia - RP), Jon Garland (Los Angeles Dodgers - SP), Brian Giles (San Diego - OF), Troy Glaus (St. Louis - 3B), Vladimir Guerrero (Los Angeles Angels of Anaheim - OF/DH), Rich Harden (Chicago Cubs - SP), Bob Howry (San Francisco - RP), Nick Johnson (Florida - 1B), Randy Johnson (San Francisco - SP), Jason Kendall (Milwaukee - C), Adam LaRoche (Atlanta - 1B), Braden Looper (Milwaukee - RP), Felipe Lopez (Milwaukee - 2B/3B/SS/OF), Brandon Lyon (Detroit - RP), Jason Marquis (Colorado - SP), Melvin Mora (Baltimore - 3B), Guillermo Mota (Los Angeles Dodgers - RP), Xavier Nady (New York Yankees - OF), Will Ohman (Los Angeles Dodgers - RP), Miguel Olivo (Kansas City - C), Vicente Padilla (Los Angeles Dodgers - SP), Chan Ho Park (Philadelphia - SP), Carl Pavano (Minnesota - SP), Andy Pettitte (New York Yankees - SP), Joel Pineiro (St. Louis - SP), Fernando Rodney (Detroit - RP), Ivan Rodriguez (Texas - C), Brian Shouse (Tampa Bay - RP), Russ Springer (Tampa Bay - RP), Fernando Tatis (New York Mets - 1B/3B/OF), Yorvit Torrealba (Colorado - C), David Weathers (Milwaukee - RP), Randy Winn (San Francisco - OF), and Gregg Zaun (Tampa Bay - C).

Journalism Ethics Run Amuck, Once Again

The Associated Press published a story yesterday on a very tragic, sensitive and private matter involving the death of a famous professional athlete's mother. The report not only discusses details surrounding the death, but also personal information about the player's relationship with his mother.

The issue here is not whether the facts of this publication are untrue. The disclosure of private facts tort claim subjects the press to liability for the publication of truthful private matters that would be highly offensive to a reasonable person and that are not of legitimate public concern. In many respects, we as a society have become brainwashed into thinking that the press has a constitutional privilege to publish whatever truthful matters it wants, especially when the matter involves a public figure. But surprisingly, the Supreme Court has given very limited attention to the constitutional privilege of the press to publish truthful private facts and has addressed the issue in only one case involving a public disclosure of private facts tort claim (see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)), and its holding in that case was deliberately and explicitly narrow. Such little guidance by the Supreme Court naturally leaves state and federal courts wide discretion to determine what constitutes a "legitimate public concern" (a/k/a newsworthiness) and to balance the conflicting interests of individual privacy and press freedom.

As I discuss at length in my law review article Tort Law and Journalism Ethics, state and federal courts have proffered varying definitions of newsworthiness. The California Supreme Court in Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998) recognized that a broad "public domain" view of the First Amendment privilege, i.e. any information readily available to the public, would swallow the public disclosure of private facts claim. Regarding matters involving public figures, the court set forth what I believe is the proper standard for newsworthiness: "[T]he evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events, and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given."

In other words, there must be a nexus or connection between the private information published and the public activity that makes the person a public figure. Here is an excerpt from my law review article:

"The relevance/nexus factor is a critical component in balancing the First Amendment and journalism ethics standards because such an inquiry takes into account the purpose, or reason, for the publication of the matter. If there is a remote nexus or connection between the truthful matter and the event or activity that brought the plaintiff to public attention or that made him or her a public figure, then the societal First Amendment interest in the information is much less compelling because the purpose for publication becomes primarily one of sensational prying into private affairs for its own sake or one of pandering to lurid curiosity."

There is a very tenuous connection between the details surrounding the death of a player's mother and what makes the player a public figure, that being his status as a professional athlete. This publication, having no social value and intruding into an extremely tragic, private and sensitive personal matter, turns journalism ethics standards on its head.

Professor Alfred Yen on Efforts by Colleges to Discourage Disappointing High School Recruits from Enrolling

Over on Madisonian.net, Boston College Law School Professor Alfred Yen has a thought-provoking piece on Duke basketball recruit and high school senior Clair Watkins, who, as a junior, Duke University offered a full scholarship to play (and enroll) at Duke. Watkins, an honors student, has apparently not progressed as a player and Duke recently told her that while it will honor its scholarship offer, Watkins likely wouldn't play at Duke if she enrolled. Watkins is now contemplating other college options, though she could still choose to accept Duke's full scholarship, as she has until the spring to decide.

Here's an excerpt from Professor Yen's post:

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I find this story interesting and complicated. At first blush, it’s all about nasty Duke finding better players for its team and then dumping someone they had aggressively courted. That having been said, Duke apparently is willing to stick by its commitment to a 4 year scholarship if Ms. Watkins still wants to attend. Many schools would simply have withdrawn their scholarship offer, as verbal early commitments are explicitly non-binding.

So, on one hand, I find myself giving Duke respect for keeping its promise of a 4 year scholarship. Indeed, Ms. Watkins might have found herself on the bench anyway. If the Duke coach changed her mind about Ms. Watson because better players had committed to the program, or if other players outplayed Ms. Watson once she got to Duke, she’d have the same experience the Duke coach has now warned about.

On the other hand, I also think that Duke has revealed just how much it values winning basketball games over real decency. The truly decent thing to do would be for Duke to tell Ms. Watson that she needed to elevate her game in order to play, and that the coach was calling to express her commitment to helping Ms. Watson improve. To put this in perspective, should a college call an admitted student to say “We’ve reconsidered. You’ll probably be at the bottom of your class, so maybe you’d like to go elsewhere?” Or, should a college say “We know you will find our curriculum challenging. Here are all of the academic support services that will help you thrive.”? By calling with the cold shoulder, the Duke coach was hoping to get Ms. Watson to give up her scholarship despite Duke’s willingness to honor it. Apparently they didn’t really want her to come to the school unless she would be a star basketball player.

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To read the rest, click here.