Why did Vilma not sue the NFL?

Mike's SI piece on the Vilma lawsuit got mentioned on Slate's Hang Up and Listen podcast this week. I disagree with a couple of points that Mike makes (and that the HU&L guys largely repeat): I do not believe there is any chance the claim is frivolous, although the issue of whether the whole thing is preempted by the NLRA and the CBA is an interesting one (the answer to which I have no idea). It seems to me that while the CBA gave Goodell a great deal of investigatory and sanction power over the players, it did not give him license to defame players and that possible defamation did not become the subject of bargaining. As to forum, I wrote previously that there is a nice issue of whether Goodell is subject to personal jurisdiction in Louisiana, although the more I think about it, the more convinced I am that the case can be heard there.

But I now want to pose a different question: Why did Vilma sue only Goodell and not the NFL on a respondeat superior theory? The answer depends on two questions that I hope people can answer.

One possibility is that the NFL is a party to the CBA (Goodell is not), so suing the other contracting party makes the possible labor preemption more obvious. Is that possible?

A second possibility is that Vilma wants to be in federal court and was worried that the NFL might somehow destroy complete diversity and thus federal jurisdiction. That explanation depends on my second question: What is the precise organizational status of the National Football League? Is that an independent entity and, if so, what is its form and make-up? Or is it owned by some other entity and, if so, what is the form and make-up of that entity? While the league has its offices in New York, that only matters if it is a corporation; if it is a partnership or a limited liability company, its citizenship is based on the citizenship of all of its partners or members. And if some of those are from Florida (Vilma's home state), this case cannot be in federal court. So who, exactly, does Goodell work for and what is its nature and structure?

Update: Tom's comment gets us part way there, but only part way. A partnership's citizenship is determined by the citizenship of every partner. So we need to know about all the general and limited partner of Miami Dolphins Ltd. The general partner is "South Florida Football Associates LLC," which is headquartered in New York. Its managing member is Stephen Ross. Is Ross a Florida citizen? According to Wikipedia, he resides in New York. Of course, there also are the famous limited partners that Ross brought on, such as Gloria and Emilio Estefan, Marc Anthony, and the Williams sisters. Gloria for sure is a Florida citizen. Not sure if she and the others are partners in the partnership or members of the LLC. But either way, they make Miami Dolphins Ltd. a Florida citizen which makes the NFL a Florida citizen. So suing the NFL probably would have destroyed diversity and Vilma wanted to be in federal court. Of course, that is surprising, given the "local bias" rationales underlying diversity jurisdiction. I would have expected Vilma to want to be in state court in Louisiana.

The Discovery Process, Internal Investigations and Jonathan Vilma's lawsuit

I've written an article titled Power Game in the May 28 issue of Sports Illustrated. The article appears on page 19 and can also be found at this link. Here's an excerpt:

The NFL likely worries that if a judge orders pretrial discovery, the league would have to reveal its informants, which could undermine the NFL's investigation and provoke other suspended players and coaches to challenge the commissioner. Keep in mind, informants talking to league investigators are not under oath, and can lie—including to protect themselves—without legal repercussion.

To read the rest, click here.

Today in Sports Law History

Today marks the 90th anniversary of the United States Supreme Court's seminal opinion in Federal Baseball Club of Baltimore v. National League. In a unanimous decision authored by Justice Oliver Wendell Holmes Jr. (pictured), the Court held that the "business of base ball" was neither interstate in nature, nor commerce, and thus was not subject to the Sherman Act. The case was brought by the Baltimore Terrapins of the Federal League of Professional Baseball Clubs, after the team was dissatisfied with a peace settlement between the rival circuit and the American and National Leagues in December 1915. After being presented with unfavorable testimony during an abbreviated trial in Philadelphia, the Baltimore franchise voluntarily withdrew its case in 1917, only to refile it a few months later in Washington, D.C. This latter suit proceeded to trial in 1919, with a jury awarding Baltimore an $80,000 verdict(subsequently trebled to $240,000). Organized baseball prevailed on appeal, however, and the Supreme Court affirmed on May 29, 1922. Although the relatively narrow view of interstate commerce relied on in Federal Baseball soon became outdated, the Court has nevertheless affirmed the decision on two separate occasions, giving rise to baseball's infamous antitrust exemption.

For analysis of the Supreme Court's decision in Federal Baseball, check out Kevin McDonald's 1998 article from the Journal of Supreme Court History, "Antitrust and Baseball: Stealing Holmes," as well as Justice Alito's 2008 commentary considering the case (also published in the Journal of Supreme Court History), along with the thoughts of Sports Law Blog's Ed Edmonds. Meanwhile, for more on the Federal League generally, be sure to read Daniel Levitt's excellent, recently-released history, The Battle that Forged Modern Baseball: The Federal League Challenge and Its Legacy.

Bioethics Panel: A Legal, Medical and Theological Perspective

Bioethics will likely play a significant role in how sports and athletes are regulated in the future. For instance:

• Should parents be able to"select" certain genes for their children so their kids have the greatest chance of becoming pro athletes?
  

• Should athletes be able to undergo gene therapy for rehabilitation of injury or enhancement of natural ability (was Bartolo Colon's stem cell treatment a sign of things to come)?

• Should bioethics matters be regulated by collective bargaining agreements, or should federal or state governments not allow players' associations and owners to agree to certain possibilities?
  

Our colleague Alan Milstein - one of the nation's leading bioethics attorneys, including in the intersection of bioethics and sports, such as when Alan represented Eddy Curry when the Chicago Bulls demanded Curry take a DNA test -- has organized what looks to be a terrific panel to be held on Monday July 23, from 12:30 to 3:45 pm, in Philadelphia.

I'll be in attendance and am looking forward to hearing from some of best bioethicists around. Here is more information - hope you too consider attending:

Bioethics: A Legal, Medical and Theological Perspective

Hear from a wide range of experts

Our panelists will include doctors, clergy, academics and lawyers. Explore with them as they reflect, analyze and dialogue about:

• Bioethics – its meaning and sources
• Key documents that underlie bioethical decision-making
• Doctor/patient relationships and quality of care
• Public health issues and the role of physicians in state actions
• Reproductive rights and issues
• Organ transplants
• Death and dying
• Human subject research
• Eugenics, cloning and embryonic stem cell research

Come to investigate the current ethical issues

If you’re coming for answers, then this may not be the seminar for you. But if you’re coming to investigate current ethical issues and probe into the questions and dilemmas they pose for you, your clients, families, hospitals, governments and civilizations, then you’ll enjoy this program.

Leave with an understanding of why even well-informed people reasonably disagree about how to apply bioethics

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Course Planner: Alan C. Milstein, Esq.

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Faculty:

Alan C. Milstein, Esq., Sherman Silverstein, Moorestown, NJ

Elizabeth A. Babin, M.D., Obstetrics & Gynecology, Kennedy Health System, Turnersville, NJ

Aaron D. Bannett, MD, MBA, Founder, Organ Transplant Program & former Chairman of Surgery, Albert Einstein Medical Center, Philadelphia

Peter J. Colosi, Ph.D., Assistant Professor of Moral Theology, St. Charles Borromeo Seminary, Wynnewood

Frank M. McClellan, JD, LLM, Professor of Law Emeritus, Temple University James E. Beasley School of Law, Philadelphia

Reverend Robert J McFadden, Resurrection Baptist Church, Philadelphia

Timothy B. McKinney, M.D., Obstetrics & Gynecology, Blackwood, NJ

Location	Start Time	End Time
The CLE Conference Center Wanamaker Bldg., 10th Floor, Ste. 1010, Philadelphia, PA	Mon, 12:30P Jul 23, 2012	Mon, 3:45P Jul 23, 2012	Register

For more information on attending, click here. Hope to see you there!

Preliminary Thoughts on the NFL Collusion Lawsuit

As many of you know, on Wednesday May 23, the NFL Players Association filed suit against the 32 NFL teams in the case White v. National Football League, arguing that the NFL teams "engaged in a secret, recently-revealed collusive ... agreement" to suppress player salaries and impose a $123 million salary cap for the uncapped 2010 season.

Michael McCann has already shared his thoughts on the lawsuit in his recent column for Sports Illustrated. However, having written two law review articles on Major League Baseball's history of collusion (see here and here), I wanted to add a few points of importance:

1. The Recent Football Case is a Labor Case, Not an Antitrust Case: Generally when we think about collusion in professional sports, we think about violations of Section 1 of the Sherman Act, which states that "[e]very contract, combination ... or conspiracy, in the restraint of trade or commerce ... is declared to be illegal." However, the recent lawsuit filed by the NFL Players Association is not based on Section 1 of the Sherman Act. Rather, it is filed under labor law, and argues that the NFL teams violated three distinct provisions of their last collective bargaining agreement that relate specifically to disallowing collusion. These provisions include:

• Article XIII(a) (Anti-Collusion): "No Club, its employees, or agents, shall enter into any agreement express or implied, with the NFL or any other Club .... to restrict or limit individual Club decision-making [with regards to] whether or not to negotiate with a player."

• Article XV, Sect. 2: "Neither the parties hereto, nor any Club or player shall enter into an agreement .... to serve the purpose of defeating or circumventing the intention of the parties reflected by [aspects of the agreement related to] Total Revenues, Salary Cap, Entering Player Pool, and Minimum Team Salary ..."

• Article XIX, Sect. 6: "Defendants ... each pledge their best efforts and cooperation ... to implement the provisions of the [collective bargaining agreement] in a manner consistent with good faith and fair dealing."

2. The Labor Law Setup of this Case Makes it Like the Baseball Collusion Claims in the 1980s: The legal claims in the recent NFL collusion suit are shaping up a lot like those in three baseball collusion grievances, filed based on conduct that occurred during the 1985, 1986 and 1987 baseball off-seasons. In those cases, labor arbitrators Thomas Roberts and George Nicolau found the Major League Baseball teams liable for reaching an agreement not to sign other teams’ free agents, and later for creating an information bank to prevent teams from offering more than one another for free agents. Each of these three grievances was ultimately decided in favor of the Baseball players. After the third ruling, the Major League teams settled by agreeing to pay the players $280 million in damages (plus interest).

3. Nevertheless, the NFLPA Claims are Not Identical to Baseball Collusion in the 1980s: Yet, there are at least three important differences between the Football Collusion claims filed this week and the Baseball claims from the 1980s. First, the baseball cases alleged salary suppression on the individual level, whereas the NFL Players Association alleges salary suppression on the team-wide level. In addition, in the baseball cases of the 1980s all teams to some extent participated in the conspiracy (the only team in doubt was the New York Yankees that made a contract offer to White Sox catcher Carlton Fisk); whereas the National Football Players Association alleges in its claim that "the Redskins, Cowboys, Raiders and Saints .... refused, at least to some extent to abide by their collusive conspiracy." Finally, whereas the Major League Baseball collusion cases were decided upon by an arbitrator, the National Football League Players Association has filed its claim in federal court.

4. For the NFL Players, Proving a Conspiracy will be the Biggest Challenge: Most likely, the most difficult part of this case for the NFLPA will be proving that there really was a conspiracy among the NFL teams to enforce a secret salary cap. Presuming a court adopts antitrust law's standard of proving an agreement (even though this is technically not an antitrust case), the NFL Players would have to show sufficient facts to exclude the possibility that defendants were acting independently or in a consciously parallel manner. To prove such an agreement, the NFL Players would not necessarily need a "smoking gun" memo, such as the one that Major League Baseball's Director of the Player Relations Leland S. MacPhail distributed during baseball's 1985 off-season that encouraged teams to “exercise more self-discipline in making their operating decisions and to resist the temptation to give in to the unreasonable demands of ... players." But the NFL Players would still need evidence -- either through documents, testimony or evidence of radical departure from past behavior -- that the NFL teams (or at least 28 of the NFL teams) had a "meeting of the minds" or a "unity of purpose" in refusing to exceed a purported salary cap.

5. Mike Florio's Use of a Confidential Source in his March 12 Article Might Cause Chaos: Finally, although most evidence of collusion emerges in the discovery process of a claim, the NFL Players' initial complaint cites three public statements that they believe help to show collusion. Two of these statements are made by NY Giants owner John Mara and refer to the lack of 2010 salary cap as a "loophole" that has come up several times in owners' meetings. Meanwhile, the third statement comes from Mike Florio's Pro Football Talk website (owned by NBC Sports) in which he cites "a source with knowledge of the situation" as saying that NFL teams were told “at least six times” during ownership meetings that taking advantage of the lack of the salary cap would lead to “serious consequences.” The nature of Florio's source here is critically important; however, he refuses to divulge his source's identity. If the case moves forward, I would fully expect both Florio and NBC Sports to receive a subpoena from the NFL Players Association seeking disclosure of this secret source.
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As the White v. National Football League case progresses, I will continue to share my thoughts on Sports Law Blog. You can also follow me via Twitter at MarcEdelman. (Note: this post has been cross-posted on Above the Law).

VADA Mess!

A Quick Look at the Legal and Regulatory Issues Raised by the Cancellations of Khan-Peterson II and Berto-Ortiz II Following Positive Drug Tests

                In one famously bad month for top-level professional boxing, two highly anticipated rematches of 2011 “Fights of the Year” were aced as a result of participants testing positive for banned substances.  The unfortunate news began in early May, when it was disclosed that unified junior welterweight champion Lamont (Havoc) Peterson tested positive for synthetic testosterone in advance of his May 12, 2012 rematch with Amir (King) Khan.  It continued about a week later when it was disclosed that the June 23, 2012 welterweight rematch between Andre Berto and “Vicious” Victor Ortiz was canceled after Berto tested positive for noandrosterone, a banned steroid.  Both positive tests came during random testing administered by the Voluntary Anti-Doping Association (“VADA”) and agreed to by the contestants in their bout contracts.  In the wake of these positive tests, what once looked like an outstanding device for making certain that professional boxers did not seek unfair advantages behind closed doors during their pre-fight preparations has now become the flashlight that illuminated what may be a long-time practice in professional boxing.  What can be taken away from Peterson’s and Berto’s positive tests? A quick look follows....

 To read more, please see:  http://www.mp8.ph/news/vada-mess/16193

NFLPA sues NFL for Collusion

I have a new column for SI.com on today's big news - another legal headache for Roger Goodell.