Harlem Ambasadors sue Harlem Wizards over LaMarvon Jackson

Back in 2006, we blogged about the Harlem Ambassadors taking on the Harlem Globetrotters in an FTC complaint over the Globetrotters'"use of arenas" clauses that allegedly prevented the Ambassadors from playing in certain arenas.

Six years later, the Ambassadors are back in sports legal news.  This time they have filed a lawsuit against the Harlem Wizards over the Wizards allegedly trying to sign LaMarvon Jackson, who the Ambassadors say was under contract to play for them.  The 6'6 Jackson didn't exactly have a big impact as a college basketball player -- he averaged just 1 point per game over two seasons at the University of Arkansas Little Rock from 2007 to 2009 -- but has apparently became a coveted professional comedy basketball player.  Or at least one worthy of filing a lawsuit.

Here is an excerpt from the Ambassadors' press release on the lawsuit:

HARLEM AMBASSADORS FILE SUIT AGAINST HARLEM WIZARDS

Complaint against comedy basketball competitor is no laughing matter

* * *
 

The complaint, filed in DuPage County, Illinois Circuit Court, alleges that the Harlem Wizards tortiously interfered with a contractual relationship between the Harlem Ambassadors and a basketball player, LaMarvon Jackson.

“Just like a referee decides who’s playing fair and who’s breaking the rules on the basketball court, we need the court to make a similar determination,” said Dale Moss, President of the Harlem Ambassadors.  He added that “our goal is to protect the sanctity of our performer agreements.”  The Ambassadors are seeking more than $70,000 in general contract and punitive damages.

Both Harlem Ambassadors, Inc. and Harlem Wizards Entertainment Basketball, Inc. are independent professional basketball organizations and neither is affiliated with a league.  “If this were a league matter, the issue is so clear and so simple that a wise commissioner would resolve this in minutes,” observed Moss.

An aside: for law students looking for paper/journal topics, exhibition/comedy basketball could have some fertile legal ground to explore.

UPDATE:  Dale Moss, President of the Harlem Ambassadors, emails me with a "photo of Jackson in Ambassadors uniform, which we will prove is the rightful uniform."  Here it is:

Harvard law School Sports Law Symposium on March 23

I'm looking forward to joining many others for what should be a fantastic symposium at Harvard Law School on Friday, March 23.  Here are the details:

Spring 2012 Sports Law Symposium - Friday, March 23, 2012

Professional Sports in America:

Labor Peace BUT...

Harvard Law School

Friday, March 23, 2012

9:30am-6:00pm

OVERVIEW

Harvard Law School’s Committee on Sports and Entertainment Law will host the 2012 Sports Law Symposium on Friday, March 23, 2012.  CSEL’s 2012 Sports Law Symposium will focus on the legal and business issues surrounding the recent collective bargaining disputes in the three major leagues and the issues that must still be worked out.  The overarching theme of the symposium will be:“Professional Sports in America: Labor Peace BUT...”

The event is free and open to the public.

SYMPOSIUM SCHEDULE

9:00 – 9:30 am	Continental Breakfast	Ames Courtroom
9:30 – 10:45 am	NBA Collective Bargaining Panel	Ames Courtroom
11:00 am – 12:15 pm	NFL Collective Bargaining Panel	Ames Courtroom
12:30 – 1:45 pm	The Concussion Crisis in Professional Sports and Presentation of the Professor Emeritus Paul Weiler Scholarships and Writing Prize	Ames Courtroom
2:00 – 3:15 pm	MLB Collective Bargaining Panel	Ames Courtroom
3:30 – 4:45 pm	Performance Enhancing Drugs Panel	Ames Courtroom
5:00 – 6:00 pm	Keynote Speech	Ames Courtroom
6:15 – 8:00 pm	Symposium Reception	Austin Rotunda

PANEL AND PANELISTS OVERVIEW*

 *Panel Compositions subject to change

KEYNOTE SPEAKER – TBA

PANEL #1 - NBA COLLECTIVE BARGAINING PANEL

This year saw the NBA season cut short by failure to reach agreement on a new Collective Bargaining Agreement between the NBAPA and the League.  While an agreement was reached, labor peace is by no means assured.  With negotiations recently completed in the NFL and upcoming in the MLB, collective bargaining remains an important topic.  With representatives from the NBAPA, the NBA, and third parties, this panel will explore the major bargaining difficulties each party faced, how agreement was finally reached, and what might lie ahead for labor relations in the three major leagues.

• TIME: 9:30-10:45am (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Michael McCann (Professor of Law Vermont Law School, SI.com, NBA TV Legal Analyst)
• Mike Zarren, Esq. (Boston Celtics Assistant General Manager and General Counsel)
• Yared Alula, Esq. (NBAPA Counsel)
• Jeff Mishkin, Esq. (Skadden Arps, former NBA EVP and Chief Legal Officer)
• Darren Heitner, Esq. (Wolfe Law Miami, P.A./CEO Dynasty Dealings, LLC)

PANEL #2 - NFL COLLECTIVE BARGAINING PANEL

Over the course of this past summer, thirty-one NFL team owners and the NFL Players’ Association (NFLPA) agreed to a new 10 year Collective Bargaining Agreement.  This panel endeavors to elucidate the issues regarding rookie and retiree benefits that the new agreement has not sufficiently addressed. In the case of the former, the new wage scale forecloses any possibility of a number 1 draft pick reaching a deal that remotely resembles what Sam Bradford (the number 1 draft pick for the 2010-2011 season) had been able to  secure: a six-year, $78 million deal. In the case of the latter, the settlement of the Carl Eller suit filed by retired players following the adoption of the new agreement has led many retired players to believe that they have been left out in the cold. 

A number of retired players along with draft eligible prospects not covered by the previous CBA, led by former Hall of Famer Carl Eller, had filed a class action antitrust suit against the NFL (Eller v. NFL) on the following grounds:

·       The NFLPA intentionally bargained for terms that contravened the rights of retired players against the NFL; and

·       The NFLPA failed in their “fiduciary duty” to retired players by bargaining for current players’ rights at their expense.

Given that the District Court consolidated the retirees’ class action lawsuit with Brady v NFL, the players’ class action antitrust lawsuit against the NFL following the decertification of the Players’ Association, and the suits were dismissed once the NFL and the NFLPA reached an accord, this issue remains unsettled at this time.   Not only will this panel will discuss the aforementioned open items, this discussion will also look back at the issues that led to the newly adopted CBA.

• TIME: 11:00am-12:15pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Glenn Wong (UMass Isenberg School of Management)
• Professor Matt Mitten (Professor of Law Marquette University Law School, Director National Sports Law Institute)
• Professor Patrick Rishe (Forbes.com Contributor, Associate Professor Webster University)
• Jeff Pash, Esq. (EVP and General Counsel NFL)
• Pete Kendall (NFLPA permanent player representative)
• Joe Nahra, Esq. (CAA Bussiness & Legal Affairs Attorney, NFLPA Staff Counsel)

PANEL # 3 - THE CONCUSSION CRISIS IN PROFESSIONAL SPORTS

 The mission of the Sports Legacy Institute is to advance the study, treatment and prevention of the effects of brain trauma in athletes and other at-risk groups.  SLI was founded on June 14, 2007 by Chris Nowinski and Dr. Robert Cantu in reaction to new medical research indicating brain trauma in sports had become a public health crisis.  SLI has formalized groundbreaking neuropathological research by partnering with Boston University School of Medicine to form the Center for the Study of Traumatic Encephalopathy.  SLI Co-Founder and Medical Advisory Board chair Dr. Robert Cantu and other panelists will discuss SLI’s research and address the concussion crisis as it relates to the NHL.  Professor Carfagna will also present Professor Emeritus Paul Weiler Scholarships and Professor Emeritus Paul Weiler Writing Prize at this time. 

• TIME: 12:30-1:45pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Peter Carfagna (Lecturer on Law Harvard Law School, Chairman/CEO Magis LLC)
• Tim Fleiszer (Representative Sports Legacy Institute, Partner at Gil Sports Management)
• Mark Moore (Author, Saving the Game)
• Dr. Robert Cantu, MD. (Clinical Professor of Neurosurgery at BUSM, Co-Director of the Center for the Study of Traumatic Encephalopathy, Co-founder and Medical Advisory Board Chairman Sports Legacy Institute)
• Dr. Judith Edersheim, Esq. MD (Assistant Clinical Professor of Psychiatry Harvard Medical School, Co-Director of the Center for Law, Brain and Behavior)

PANEL #4 - MLB COLLECTIVE BARGAINING PANEL

While the NFL and NBA collective bargaining disputes led to litigation and cancelled games, on November 22, 2011 Major League Baseball and the Major League Baseball Players Association announced that they had reached a new collective bargaining agreement without any missed games or practice time.  The agreement allows play to continue without interruption through the 2016 season, and the end of the agreement will mark 21 years without a strike or lockout.  This panel will explore the reasons MLB has been able to maintain labor peace for such an extended period of time and discuss issues that may threaten this peace in the future. 

• TIME: 2:00-3:15pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Lisa Masteralexis (Department Head, Mrk H. McCormack Department of Sport Management at UMass Amherst)
• Paul Mifsud, Esq. (Senior Counsel MLB)
• Damon Jones, Esq. (Washington Nationals General Counsel)
• Mary Braza, Esq. (Foley Lardner)
• Matt Nussbaum, Esq. (MLBPA Assistant General Counsel)

PANEL #5 - Performance Enhancing Drugs

Performance Enhancing Drugs have been getting a lot of attention lately throughout professional sports. They caused arguably the biggest scandal in Major League Baseball history and the issue still rears its ugly head every time Hall of Fame ballots are cast. That problem will only grow in significance as the all-time homerun leader and several other top players of the '90s and 2000s approach eligibility. Baseball isn't the only sport that's been rocked by steroids recently, and in every sport dealing with them a similar set of legal and regulatory issues arises: how should the sport regulate their use ex ante? How should the sport's authorities punish those who break the rules? What is the appropriate role of the government, if any? What role should the courts take in hearing suits brought by aggrieved players claiming false accusations or faulty tests? Our panel will explore these issues from the perspectives of several different professional sports and several different positions within the sports world.

• TIME: 3:30-4:45pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Warren Zola (Assistant Dean for Graduate Programs, Carroll School of Management at Boston College)
• Bob Arum, Esq. (Founder and CEO Top Rank Promoting)
• Adolpho Birch, Esq. (Sr. Vice President of Law & Labor Policy NFL)
• George Hanna (Senior Director of Investigations MLB)
• Dan Mullin (Vice President and Director MLB Department of Investigations)
• David Cornwell, Esq. (DNK Cornwell)

Ryan Braun and Proceduralism

Emily Bazelon has an essay at Slate framing the decision overturning Ryan Braun's suspension in the context of the (somewhat unique) U.S. emphasis on procedural rights even in the face of substantive guilt. The media and public discussion of the Braun case in the next few days will illustrate how the public at large internalizes (or doesn't internalize) concerns for procedural justice.

I’m Begging You for Mercy

As the hit song by Duffy goes:

You got me beggin' you for mercy
Why won't you release me
You got me beggin' you for mercy
Why won't you release me
I said release me

Deep in the middle of the 426 pages that comprise the 2011-12 NCAA Division I Manual is Bylaw 13.1.1.3 entitled “Contacts & Evaluations: Four –Year College Prospective Student-Athletes” which reads:

“An athletics staff member…shall not make contact with the student-athlete of another NCAA collegiate institution…without first obtaining the written permission of the first institution’s athletics director to do so…regardless of who makes the initial contact.”

The result is that while coaches are free to enjoy free agency and jump from school to school at will, a student-athlete needs permission from his or her school’s athletic department before a conversation with another school is allowed.

If the request for contact under Bylaw 13.1.1.3 is granted, the student-athlete may transfer, accept a scholarship, and compete immediately. If the request is denied, the student-athlete is free to transfer to another institution but must do so without any contact with the athletic department or any form of athletic scholarship. After transferring, after one calendar year the student-athlete may accept a scholarship and compete.

Additionally, further restrictions are placed on individuals in the sports of baseball, basketball, football, and men’s ice hockey in Bylaw 14.5.5.2.10 entitled “One-Time Transfer Exception.” Under this rule, even if a student-athlete is granted permission to transfer, they must sit one year before being able to compete in these sports unless granted an additional release from his or her initial institution. Permission is therefore required for an immediate scholarship and the right to compete—the problem is that this permission is often withheld and the process to challenge a denial flawed.

These restrictions are intended to curtail the free movement of student-athletes. Typically, schools allow their student-athletes the ability to compete immediately if the transfer is based on personal hardship (returning home to care for a sick relative) or if the student-athlete has graduated and intends to pursue graduate work at a school that offers graduate coursework in a field that the initial school does not.

The basic concept, rooted deep into the NCAA rules and codified in the National Letter of Intent (NLI) that every student-athlete signs, is that the student commits to an institution not a coach. While coaches may make promises about building something together and partnership for the future with a recruited student-athlete, when recruiting a student-athletes these promises are, under the NCAA rules, unenforceable and irrelevant.

Undoubtedly written by lawyers, there is a semblance of due process in both transfer bylaws which provides a student-athlete, denied the transfer request by his or her institution, the right to a hearing. The rules read, in part, that the student-athlete may be “provided a hearing conducted by an institutional entity or committee outside of the athletic department.”

To summarize: the NCAA rules, written by schools claiming to protect the best interests of student-athletes, allow coaches to move about at will but student-athletes need permission to do so. Certainly schools may limit coaching movement by attempting to enforce employment contracts but there has been limited success in the court system in this regard.

For three recent examples (The University of Maryland, Kansas University, and Saint Joseph's University) along with my recommendations, check out the full article at the Huffington Post.

Why is it so hard for NCAA athletes to transfer?

Warren Zola will have a column on this topic in the coming days, but in the meantime, the New York Times examines NCAA rules for colleges when players seek to be released from their scholarship and transfer schools.  Adam Himmelsbach interviews several people for the story, including yours truly, and it comes in the wake of Danny O'Brien and Todd O'Brien's difficulties in leaving one school to play for another.  Compare how student-athletes looking to transfer are treated with other students who seek transfer from one school to another for academic (or other) reasons.

West Virginia and the Big East Break-Up on Valentine’s Day

Valentine’s Day 2012 marked the end of the twenty-one year relationship between West Virginia University (WVU) and the Big East Conference, and while no love was lost, the parties did manage to reach a settlement agreement. The agreement settled both the lawsuit that WVU filed against the Big East at the end of October 2011 in West Virginia and the Big East’s subsequent countersuit filed against WVU less than a week later in Rhode Island. WVU sued the Big East claiming breach of fiduciary duty and the Conference brought an action claiming that WVU breached its contractual obligations to the Big East.

The settlement agreement enumerates the terms of payments to be made and requirements to be fulfilled by both parties. When WVU announced it was leaving the Big East in October 2011, it initially paid the Big East $2.5 million, only half the amount of the buyout that was stipulated in the Big East bylaws at the time. However, this buyout amount was subsequently raised to $10 million, as the Big East sought to inoculate itself from further conference poaching. The agreement calls for WVU to pay the Big East a lump sum of $8.5 million, much of which will likely come from University donors by way of the WVU Foundation, a private fundraising organization that recently set up a “Big 12 Transition Fund.”

The agreement also provides that a “Forecasted Amount” of $9 million will be forfeited by WVU, with the Big East paying WVU any amount that it is entitled to receive from 2011-2012 Conference revenues beyond that $9 million figure. The settlement also sets forth numerous other terms and conditions, including review and mutual agreement on the terms of a financial reconciliation report to be composed by the Big East at the end of the fiscal year. WVU will be required to pay any additional amounts owed to the Conference to effectuate its full release.

WVU certainly encountered several obstacles on its path to the Big 12, but it will now officially become a member of the Conference as of July 1, 2012 (pending its compliance with the settlement agreement). While this particular suit has been resolved, its precedential effect bears monitoring. Following the settlement, the Big East released a statement that reads, in part, “West Virginia University has acknowledged and agreed that the Court in Monongalia County, West Virginia, will enter a judgment that the Big East Conference Bylaws are valid and enforceable, and will dismiss with prejudice all of West Virginia’s claims against the Conference.”

However, the West Virginia Court only recognized the validity of the bylaws as part of the consent decree it issued as a result of the parties’ settlement. This recognition is not a binding declaration that every provision of the Big East bylaws is valid and enforceable against remaining members. This could leave the Big East vulnerable should another university follow in WVU’s footsteps and challenge the Conference in court. For a conference that has been particularly susceptible to departures during this recent phase of realignment, the financial settlement with West Virginia may prove illusory its ongoing pursuit of stability.

Certainly, Syracuse University and the University of Pittsburgh are watching closely as institutions leaving the Big East for the Atlantic Coast Conference (ACC), but as of now, both the Orange and the Panthers have pledged to wait the full twenty-seven months (pursuant to Big East bylaws) prior to joining the ACC, which would be the 2014-2015 season. While the Big 12 enjoys a greater individual member payout than the ACC (currently, approximately $15 million versus $13 million), the “lame duck” status and monetary gains in a move to the ACC (current Big East payout is approximately $3 million for football members*) may prove too great a temptation for the Mountaineers' former Big East brethren.

*Note that these figures are through 2013, and Big East basketball/non-football schools receive an even smaller television payout, but that this amount will assuredly go up as the market dictates despite the departure of WVU, Syracuse and Pitt.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their assistance on this piece.

Cardozo Law Symposium: Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics

On Thursday,  March 8 the Cardozo Journal of International and Comparative Law will host a symposium titled Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics. Anyone can attend this free symposium (and if you plan on attending, please be sure to RSVP to the Symposium Editor, Wells Crandall, at richard.crandall@law.cardozo.yu.edu by March 4).  Attorneys will receive 1.5 hours of transitional/nontransitional professional practice CLE for each session they attend. 

I'm honored to be a panelist.  Here is the schedule:

8:30 AM - 9:00 AM - Breakfast

9:00 AM - 10:30 AM - Panel on surveillance at the Olympics

• Michael Drury, of Burton Copeland.  Mr. Drury is a barrister in England who works on surveillance law.  His prior post was General Counsel to the GCHQ, which stands for "Government Communications Headquarters," which is an intelligence agency in the U.K., and is akin to the NSA. 

• Pete Fussey, Sociologist and Criminologist.  He wrote "Securing and Sustaining the Olympic Games." He has in depth knowledge of the surveillance developments in Britain and how Britain has developed quite a bit of surveillance.  

10:30 AM - 10:45 AM - Break, snacks provided

10:45 AM - 12:15 PM - Panel on brand protection at the Olympics

• Michael Kuh, associate at Latham and Watkins, who was on the Legal Advisory Group for New York's bid to the International Olympic Committee.  More recently, he worked on USA bid to host the 2022 World Cup.    

• Michael McCann, Sports Law Institute director at Vermont Law School and Legal Analyst at Sports Illustrated.  He wrote As Super Bowl week commences, NFL's clean zones still an issue for Sports Illustrated last month and is an expert on consumer, antitrust and sports law issues.

• Ben Sturner, CEO of the Leverage Agency.  He is a sports marketing agent who has 11 agents working for him.  His business is marketing brands during sports events.  He has attended six Olympics in a work capacity.  Notably, he was involved with attempting to sell the naming rights to the "Bird's Nest" in Beijing (see WSJ article here). 

12:15 PM - 1:15 PM - Lunch