Sports Lawyers Association Annual Conference

The Sports Lawyers Association 36th Annual Conference will be held in Phoenix, Arizona on May 20-22. The three day annual conference is designed for attorneys, agents, representatives of professional athletes, professional sports teams and leagues, players associations, stadium and arena authorities, and companies tangentially involved with amateur sports; students and professors of sports law; educators; and all others generally interested in the field. The conference is also a great networking opportunity for those seeking to enter the field. The conference brochure contains the schedule of events and registration information, which can be accessed from the SLA's website.

Catching up with Links

Here are some commentaries that I've been meaning to blog about over the last week and today found time to do so:

* Over on Mergers and Acquisitions Law Prof Blog, Boston College Law Professor Brian JM Quinn has a terrific post on Stan Kroenke's bid to purchase the St. Louis Rams, a bid complicated by NFL rules that prevent cross-ownership across leagues and by attempts to buy the Arensal Football Club, which Kroenke partly owns. This is a great post on the role of corporate law in pro sports.

* Sports lawyer Jay Reisinger, who has represented Sammy Sosa, Andy Pettitte, and many other athletes, argues in his new post, "Goodell's Folly", that commissioner Roger Goodell abused his powers as commissioner in suspending Ben Roethlisberger, who was not charged with a crime. Marc blogged about this topic last week.

* Sports lawyer Howard Jacobs, who has represented Floyd Landis among other athletes, has a new blog, Howard Jacobs Athletes Lawyer Blog, with some terrific first posts, including a two-part series on improving the NFL's drug testing program.

* A reminder that this Wednesday, the Sports Lawyers Association and Sullivan and Worcester will be hosting what should be an outstanding panel on American Needle v. NFL and a sports law networking event. I look forward to being a panelist with ESPN's Wendi Nix, former New England Patriots general counsel Jack Mula, Boston attorney Ryan Marth, and Ed Weiss of New England Sports VEntures. As mentioned, in addition to the panel, there will also be a networking event. If you're in the Boston area, I hope you have a chance to attend.

Congratulations to the Harvard Journal of Sports and Entertainment Law: First Issue Now Published

The first issue of the Harvard Journal of Sports and Entertainment Law was just published today. We congratulate all of the folks who worked so hard to get an official sports and entertainment law journal at Harvard Law School. They include, among many others, our blog's founder, Greg Skidmore (a 2005 graduate of Harvard Law), Boston Celtics assistant general manager and associate counsel Mike Zarren (also a 2005 graduate), Professors Paul Weiler and Peter Carfagna, and current third-year student and Journal editor-in-chief Ashwin Krishnan, who recently received the Paul Weiler Award for excellence in sports and entertainment law.

Without further adieu, here is the first issue:

JSEL Volume 1, Issue 1

Preface
Peter A. Carfagna & Paul C. Weiler

Editor’s Note
Ashwin M. Krishnan

Articles
Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance
Clay Calvert, Wendy Brunner, Karla Kennedy & Kara Murrhee

The NBA and the Single Entity Defense: A Better Case?
Michael A. McCann

Hardball Free Agency: The Unintended Demise of Salary Arbitration in Major League Baseball
Eldon L. Ham & Jeffrey Malach

Wiki Authorship, Social Media and the Curatorial Audience
Jon M. Garon

The Integrity of the Game: Professional Athletes and Domestic Violence
Bethany P. Withers

Case Comment
In re Dewey Ranch Hockey
Ryan Gauthier

Will Ben Roethlisberger's 6-Game Suspension Stand?

Yesterday, Pittsburgh Steelers quarterback Ben Roethlisberger became the first NFL player suspended by Commissioner Roger Goodell who has not been charged or convicted of a crime. Whether this suspension will stand, however, depends upon how one interprets a few important clauses in the NFL Collective Bargaining Agreement.

First, whether the NFL Personal Conduct Policy is even part of the NFL Collective Bargaining Agreement ("CBA") is not entirely clear. NFL club-owners announced the league's current Personal Conduct Policy on April 10, 2007, which postdates the most recent CBA. While the NFL Personal Conduct Policy was informally approved by a group of NFL players, the NFL Personal Conduct Policy was never written and signed into the CBA (at least not according to publicly available information). This may present a problem for Commissioner Goodell's enforcement because Article LV, Section 19 of the NFL CBA states that "[n]one of the Articles of this Agreement may be changed, altered, or amended other than by a signed written agreement."

Second, presuming the NFL Personal Conduct Policy is not deemed part of the NFL Collective Bargaining Agreement, Commissioner Goodell may alternatively argue that Paragraph 15 of the NFL Player Contract allows him to suspend Roethlisberger for "being deemed guilty of any other conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football." Paragraph 15 of the NFL Player Contract is part of the CBA, as it is incorporated by reference as Appendix C. However, it is not altogether clear that Ben Roethlisberger has done anything "detrimental to the League or professional football," nor that he is in any way "guilty" as the term may be defined by that paragraph.

Finally, it is worth noting that Paragraph 11 of the NFL Player Contract grants individual club owners the power to terminate any player contract if that player "is engaged in personal conduct, reasonably judged by [the club] to adversely affect or reflect on [the club]." This clause seems to be far broader than Paragraph 15 of the NFL Player Contract and may present grounds for the Steelers to terminate Roethlisberger's contract. However, this clause extends only to a player's team, and not to the Commissioner, who is acting on behalf of the league overall.

(Cross-posted on SportsJudge Blog)

New Sports Law Scholarship

Recently published scholarship includes:

Marc Bianchi, Comment, Guardian of amateurism or legal defiant? The dichotomous nature of NCAA men’s ice hockey regulation, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 165 (2010)

Rhonda B. Evans, Recent development, “Striking out”: the Genetic Information Nondiscrimination Act of 2008 and Title II’s impact on professional sports employers, 11 NORTH CAROLINA JOURNAL OF LAW AND TECHNOLOGY 205 (2009)

Gabriel Feldman, The puzzling persistence of the single-entity argument for sports leagues: American Needle and the Supreme Court’s opportunity to reject a flawed defense, 2009 WISCONSIN LAW REVIEW 835-916

Megan Fuller, Note, Where’s the penalty flag? The unauthorized practice of law, the NCAA, and athletic compliance directors, 54 NEW YORK LAW SCHOOL LAW REVIEW 495 (2009/10)

Christopher S. Groleau, Note, Weird science: a look at the World Anti-Doping Agency’s questionable testing methods and the need for change to protect international athletes, 13 QUINNIPIAC HEALTH LAW JOURNAL 85 (2009)

Richard T. Karcher, The coaching carousel in big-time intercollegiate athletics: economic implications and legal considerations, 20 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1 (2009)

Victoria Langton, Note, Stop the bleeding: Title IX and the disappearance of men’s collegiate athletic teams, 12 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 183 (2009)

Brendan S. Maher, Understanding and regulating the sport of mixed martial arts, 32 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 209 (2010)

Scott R. Rosner & William T. Conroy, The impact of the flat world on player transfers in Major League Baseball, 12 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 79 (2009)

David Sirotkin, Note, Disciplining the disciplinary systems in professional sports: an attempt to fix the arbitrary and overreaching disciplinary powers of sports commissioners, 11 CARDOZO JOURNAL OF CONFLICT RESOLUTION 289 (2009)

Christine Snyder, Note, Perfect pitch: how U.S. sports financing and recruiting models can restore harmony between FIFA and the EU, 42 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 499 (2009)

Bethany Swaton, Girls can play, too: has the lack of female leadership in NCAA athletics become an afterthought?, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2010)

Benjamin A. Tulis, Final-offer “baseball” arbitration: contexts, mechanics & applications, 20 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 85 (2010)

Panel on Doping at Florida Coastal

This Thursday at noon my law school is hosting a panel titled, Controlling the Use of Performance Enhancing Drugs in Sports: How to Maintain Competitive Balance Without Destroying Due Process. The participants are (1) Josh Kane, Associate Counsel & Drug Testing Program Administrator at the LPGA (and Florida Coastal alum); (2) Andy Levinson, Executive Director of the Anti-Doping Program at the PGA TOUR; and (3) Travis Tygart, CEO, United States Anti-Doping Agency.

The panelists will discuss contemporary issues in regulating the use of PEDs and the resulting challenges facing sport leagues and governing bodies.

New NCAA regs and free speech

The NCAA announced several new rules today, two of which raise interesting questions if one (say, me) were to try to develop a rigorous conception of athlete free speech. (H/T: Rick). First, the NCAA toughened the penalties for taunting by making it, in some situations, a live-ball foul that would bring the ball back to the spot of the foul and might even negate a score. Second, it banned players from putting messages on eye black (outlawing a practice made famous by Reggie Bush and then Tim Tebow).

There clearly is no First Amendment problem here. The NCAA is a private organization (even if some member schools are private), so not bound by the First Amendment. And even if you could find state action, my guess is that current doctrine would treat this as employee speech (ironic, given the controversy over how student-athletes should be perceived and the issue of who should make money off college athletics); the players represent the university on the field, thus their speech may be restricted to enable the university (as "employer") to carry out its functions without interference.

At a normative level, regulations such as these raise interesting issues of how much liberty of speech players ought to have within the team concept. Everyone must wear the same uniform--but is there (and should there be) some room for individual expression, particularly on matters of public concern (depending on what a player chose to write in the eye black)?