Aaron Hernandez Charged with Murder

I have a new SI column on the charges and how Hernandez might wage a defense strategy.

Breaking Down the San Jose vs. MLB Lawsuit

Image from SanJose.com

The on-going dispute surrounding the Oakland Athletics' proposed move to San Jose took a new turn last week when the city of San Jose filed an antitrust lawsuit against Major League Baseball in federal district court (for prior Sports Law Blog coverage of the dispute, see here, here, and here).  The complaint, available here, argues that both MLB's franchise relocation policies in general, and the league's failure to approve the A's relocation to the city in particular, violate state and federal antitrust law, as well as several other California common law torts.  Under MLB rules, any proposed relocation must be approved by at least three-quarters of MLB teams.  Moreover, teams have complete veto power to prevent another franchise from relocating into their home territory.  Although MLB has not formally rejected the Athletics' proposed relocation, it has delayed a decision on the matter for several years.  San Jose's suit asserts that this delay is costing it millions of dollars in potential tax revenue and economic development. 

As others have noted, San Jose faces an uphill battle in the lawsuit as MLB has a number of potential defenses at its disposal.  The most obvious defense for MLB is its historic exemption from antitrust law.  In a series of three decisions (Federal Baseball in 1922, Toolson in 1953, and Flood v. Kuhn in 1972), the U.S. Supreme Court has consistently held that federal antitrust law does not apply to professional baseball, thus apparently undermining the city's Sherman and Clayton Act claims.

In response to the antitrust exemption argument, San Jose's best hope may be to persuade the district court to follow a series of precedents from the early-1990s limiting the scope of baseball's immunity.  Most notably, in the 1993 case of Piazza v. Major League Baseball, the Eastern District of Pennsylvania decided a suit similarly challenging MLB's relocation policies after the league refused to approve the proposed relocation of the San Francisco Giants to Tampa Bay.  The Piazza court allowed the plaintiffs' antitrust claims against MLB to proceed despite the league's exemption by interpreting the Supreme Court's baseball trilogy as only protecting the reserve clause from antitrust scrutiny.  Because major league players successfully defeated the reserve clause via arbitration and collective bargaining in the mid-1970s, the upshot of the Piazza holding was that MLB's antitrust exemption was effectively null and void.

However, as I argued in my 2010 law review article Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, the Piazza precedent is of dubious validity given that it was premised on several erroneous conclusions.  Indeed, most subsequent courts considering the scope of baseball's antitrust immunity have disregarded Piazza, making it unlikely that the court in San Jose's suit will adopt such a narrow interpretation of the exemption in this case (unless, of course, the court - itself located in San Jose - is particularly motivated to allow the case to proceed to discovery and trial).

Meanwhile, although unlikely, it is also possible that MLB will decide not to assert its antitrust exemption in the case.  The league has been extremely reluctant to rely on its exemption in recent antitrust cases, presumably for fear of triggering an adverse court decision limiting the scope of its immunity.  Most notably, MLB did not assert the exemption as a defense in the Garber v. MLB lawsuit filed last year challenging baseball's television broadcast policies under antitrust law.  Therefore, should baseball believe that it can successfully persuade the court to dismiss San Jose's lawsuit on other grounds (such as those discussed below), then the league may opt to forgo asserting the exemption in this case.  However, given that control over franchise relocation is one of the two most important protections the league derives from the exemption (with the shielding of the minor league system from antitrust scrutiny being the other), San Jose's suit would appear to be a prime case for MLB to rely on its historic antitrust immunity.

In addition to the antitrust exemption, MLB can make at least two other potentially strong arguments in support of its motion to dismiss the lawsuit.  Most significantly, the city of San Jose's standing to sue in the case appears to be tenuous at best.  The city's complaint is based upon an option contract San Jose entered with the team in 2011, under which the Athletics have three years to purchase a parcel of land from the city for just under $7 million.  However, the option contract in question does not obligate the Athletics to purchase the land, nor to relocate the team to the city even if the option were exercised.  While A's owner Lew Wolff has consistently expressed his desire to move the team to San Jose, he has yet to formally commit to such a relocation, and has never suggested that he would be willing to move the team without MLB approval. 

As a result, San Jose's suit poses a similar fact pattern as that litigated back in the late-1970s when the Los Angeles Memorial Coliseum first sought to attract an NFL team (following the Rams' move to Anaheim Stadium, but before the Coliseum reached its eventual agreement with Al Davis to move the Raiders to Los Angeles).  Specifically, the Coliseum sued the NFL alleging that the league's relocation restrictions prevented the stadium from securing a new NFL team, thus violating antitrust law.  The district court dismissed the case, however, concluding that the Coliseum lacked standing to sue.  Los Angeles Memorial Coliseum Commission v. National Football League, 468 F.Supp. 154 (C.D. Cal. 1979) ("Los Angeles Memorial I").   In particular, the court held that because the Coliseum had not yet found an NFL team willing to move to the stadium, and because the league had not yet rejected any proposed relocation, there was not yet an actual case or controversy to resolve.  It wasn't until Davis formally agreed to move the Raiders to Los Angeles, and the NFL officially blocked the relocation, that the Coliseum was able to move forward with its case (resulting in the so-called Los Angeles Memorial II litigation).  Accordingly, given that Wolff hasn't definitively committed to moving the Athletics to San Jose, and because MLB hasn't formally rejected the proposed relocation, the court may very well follow the Los Angeles Memorial I precedent and conclude that San Jose lacks standing to sue.

Meanwhile, MLB can also argue in its motion to dismiss that San Jose's state law claims are preempted by federal law.  In Flood v. Kuhn, the Supreme Court not only dismissed Flood's federal antitrust claims pursuant to baseball's exemption, but also his state antitrust claim as well.  In particular, the Flood Court held that the regulation of professional baseball required national uniformity, thus concluding that Flood's state law claims were precluded by the Commerce Clause.  Consequently, MLB will likely argue that, at a minimum, the Flood precedent requires that San Jose's claim under California antitrust law be dismissed (the league may also assert that some of the city's other state law tort claims -- its unfair competition claim in particular -- are similarly preempted, although that argument will likely be harder to win).

Finally, however, even if San Jose were to survive MLB's motion to dismiss, and the court allows the suit to proceed to trial, the city may still face an uphill battle in winning the suit.  The Ninth Circuit Court of Appeals has held on two separate occasions that professional sports leagues' restrictions on franchise relocation do not automatically violate federal antitrust law.  See Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381 (9th Cir. 1984) ("Los Angeles Memorial II"); National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562 (9th Cir. 1987).  For instance, despite ultimately condemning the NFL's refusal to allow the Raiders to move to Los Angeles, the Los Angeles Memorial II court noted that several factors could potentially justify a league's decision to block a proposed relocation under antitrust law.  These factors included: (i) an interest in protecting the loyalty of fans in the franchise's current home city, (ii) the maintenance of some reasonable territorial restrictions, (iii) the preservation of traditional rivalries, (iv) giving municipalities time to recoup their investments in local stadiums, and (v) maintaining a league presence in major television markets.  While not all of these considerations will apply to the Athletics' proposed move, San Jose will ultimately have to convince the court that MLB's failure to approve the relocation was improper in light of the legitimate factors outlined in Los Angeles Memorial II, should the case proceed to trial. 

Of course, the city probably does not intend to take the case all the way to trial.  Instead, San Jose's litigation strategy likely hinges on surviving MLB's inevitable motion to dismiss and entering the discovery phase, at which point the city will have significantly increased its bargaining leverage over the league.  If San Jose can get to that stage then its litigation strategy may prove fruitful.  Given MLB's potential defenses outlined above, however, I suspect that the city will be unable to defeat a motion to dismiss the suit.

Update (6/27/13): Professor Ed Edmonds wisely notes in the comments that San Jose will also have to overcome the text of the Curt Flood Act of 1998 if it wishes to persuade the court to adopt the Piazza precedent limiting baseball's antitrust exemption to the reserve clause.  As Professor Edmonds notes, the text of the act would appear to support a broad interpretation of the scope of the exemption.

Help Wanted: Current College Athlete to Join Plaintiffs

As you should know by now, the O'Bannon v NCAA case continues to wind through the court system, and this past Thursday there was a hearing to address class certification before federal judge Claudia Wilken  The resolution of this case will forever change college athletics; whether it ends in a trial on the merits (doubtful) or settlement (far more likely).

Where are we going?  I offer big picture perspective, a solution, and immediate needs below:

Big Picture:

Joe Nocera of The New York Times takes a big picture approach to look at the impact the O'Bannon case will have on college athletics in this article titled "The Lawsuit & The NCAA."  The theme continues to be, change is coming and the only question is how and when.

One Solution:

Advocating for paying college athletes, I wrote the following piece in The Boston Globe recently.  Then, I offered a solution in an op-ed in The Chronicle of Higher Education by proposing the creation of a new NCAA division in this article.

Immediate Concern:

What's become apparent is that the class certification efforts--to include current college athletes as plaintiffs with former college athletes--is that Judge Wilken has indicated a willingness to certify IF a current college athlete is formally willing to participate as a plaintiff.  While the plaintiffs asked if the individual could be anonymous, it appears that the answer is "no."  Thus, the rights of future college athletes and the framework of this industry are seeking a courageous CURRENT student-athlete.

Andy Staples provided a great overview of the situation in Sports Illustrated with this piece titled "Current College Athlete Set to Become Face of Ed O'Bannon v NCAA."  To summarize the requirements, the plaintiffs seek the following:

1.  A current student-athlete in the sport of men's basketball or football;
2.  Who starts at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC;
3.  That gets significant screen time when his team's games are televised (i.e. a star);
4.  Who has a pristine personal history;
5.  Who is courageous, strong in his convictions, and intelligent.
6.  And finally, someone willing to be the face of change in college athletics.

Up to the task?

Footnoting the New Jersey Sports Wagering Litigation

I recently had the chance to read the latest round of briefs filed in the on-going New Jersey sports wagering lawsuit.  The case is now at the U.S. Court of Appeals for the Third Circuit, with oral arguments scheduled for June 26.  Griffin Finan of Ifrah Law penned a comprehensive post pertaining to the DOJ's brief filed on the side of the plaintiff quintet (NCAA, NFL, NBA, NHL, and MLB).  New Jersey filed a reply brief on June 14 and I was struck by the content of the footnotes contained therein, as lead counsel Ted Olson (a former Solicitor General) made a number of thought-provoking points.  I have long been fascinated with the use of footnotes in Supreme Court opinions and academic writing generally.

After losing at the District Court level, New Jersey's appeal is premised on three arguments: (i) the sports leagues lack standing; (ii) PASPA violates the 10th Amendment; and (iii) PASPA violates the principle of equal sovereignty. In support of the state's standing argument, the brief includes four footnotes.  In sequential order:

Footnote #1 addresses the recurring issue of actual injury (from sports wagering) and injury stemming from the perception of game-fixing.  It posits that "[a]ny perceptions of game-fixing - no less than the instances of game fixing themselves - are caused by the Leagues' own agents."

Footnote #2 flags the issue of the sports league plaintiffs holding events in Las Vegas, but not having pro franchises in the city.

Footnote #3 covers the "Sports Wagering Law's carve-out for New Jersey collegiate teams" and posits that "[t]hat exemption was included at the request of the NCAA." The emphasis in bold/italics is contained in the brief.  It is not my own.  Curiously, this footnote appears to be at odds with a previous report pertaining to the matter.  I am unable to reconcile footnote #3 with the the statement made in the article linked in the previous sentence.  As such, I am curious if the sports league plaintiffs and/or the DOJ raise this issue during oral arguments or a subsequent pleading.

Footnote #4 gets to the issue of whether PASPA confers any intellectual property right and cites the recent SCOTUS decision in Already, LLC v. Nike, 133 S. Ct. 721 (2013).

I look forward to reading the transcript of the upcoming oral argument and seeing how many of these footnoted issues are covered.  My sense is that the over-under is 2.5.

Yesterday's Class Certification Hearing in O'Bannon

Steve Berkowitz of USA Today has an article this morning concerning yesterday's hearing before Judge Claudia Wilken in the O'Bannon lawsuit.  Here is an excerpt:

The [defendants'] lawyers also contended that various state laws and legal precedents say that athletes have no property rights for appearing in live, unscripted events – and thus have nothing that the NCAA or the schools are infringing upon when it comes to game telecasts and re-broadcasts.

That led Curtner to state that when it comes to television agreements, schools and conferences were simply "selling access" to their venues.

Wilken appeared to chuckle at the assertion, and after the hearing, Hausfeld attacked it, calling it a "significant admission or acknowledgement" by the NCAA.

"I don't know about any of the broadcasters, but I'm not sure that anyone in their right licensing mind would pay billions of dollars for an empty stadium or an empty basketball court," Hausfeld said. "You're paying for the players, you're paying for the quality of the teams that perform on those courts and in those stadiums. You want and many of the contracts require the conveyance of the name, image and likeness rights of the athletes. So I think the court understood there was a bit of foolishness in that representation." 

Because college athletes have never legally asserted their right to a portion of the live broadcast licensing revenue, the NCAA, conferences and universities decide on their own that they are entitled to keep 100% of the billions in annual revenues generated by simply selling to the networks access to their stadiums.

There are some who question how it is that college athletes could possibly have a legal claim or right to the broadcast licensing revenue.  Perhaps the better question is, what is it that gives the NCAA, conferences and universities the exclusive right to it?   The network is the "author" (and therefore owner) of the broadcast under copyright law.  The NCAA, conferences and universities receive from the networks billions of dollars and an assignment of the copyright in exchange for stadium access, and in the process they have shut the athletes out by not giving them a seat at the negotiating table with the networks.  This lawsuit can be viewed as requesting or demanding a seat at the table.  So what law or case precedent gives the schools the right to exclude them?  What law or case precedent gives the schools the exclusive right to broadcast licensing revenue?  Hint: it cannot be analogized to the professional sports leagues.     

O'Bannon v. NCAA: Class Certification Hearing

I have a new article for SI.com on tomorrow's class certification that breaks down what to expect and also features research on Judge Claudia Wilken.  Here is an excerpt:

The 63-year-old Wilken is no stranger to this case, sports law or class certification hearings. She denied the NCAA and EA's attempts to have O'Bannon's case dismissed, though she did reject several of O'Bannon's claims in the process. On balance, her pretrial rulings have favored O'Bannon.

Wilken also presided over a recent settlement in Pecover v. EA. In that class action, consumers sued over EA's exclusive licensing deals with the NFL, NCAA and the Arena Football League. Those deals prevented rival video game publishers from releasing their own football games with real teams and players. The case was recently settled, with EA agreeing to pay $27 million into a fund that can be claimed by consumers of EA football games. The fact that the parties reached a settlement under Wilken's watch bears notice, as O'Bannon and the NCAA could ultimately do the same.

Wilken usually certifies classes. SI.com conducted an analysis of her 29 orders on class certification from 1998-2013. It found that she denied certification only six times (21 percent), while she granted certification 18 times (62 percent) and partially granted it five times (17 percent). Keep in mind, these orders concerned facts and claims mostly dissimilar from those raised by O'Bannon. Thus they may not be accurate predictors. Still, Wilken's history is a good sign for O'Bannon.

To read the rest, click here.

Also, as the O'Bannon hearing nears, there are many in-depth stories on Sonny Vaccaro, including this one in the Pittsburgh Post-Gazette by J. Brady McCollough.  Here's an excerpt from One-Man Rebellion:

"Mr. Vaccaro has that Magic Johnson factor, that aura about him," O'Bannon says. "I don't know if you've met Magic Johnson, but when you talk to him and meet him face to face, you feel like you're the one person that he wants to talk to at that moment. Mr. Vaccaro has that same effect. I've always felt like, when I talk to him, I'm the most important person in his life."

* * *

As the decades passed, Vaccaro became obsessed. He couldn't stomach the NCAA's transfer rules, forcing players to sit out for a year after transferring. He railed against the NBA's age limit of 19, which forced players to play one year of college basketball. The NCAA was glad to have the most talented players on campus, even for just a season.

Vaccaro's tipping point came one day when he was watching ESPN Classic and he realized that the NCAA, by licensing the rights of the games to be re-aired on the network, was able to continue making money off the players into eternity. Vaccaro felt that players should be paid residuals anytime their likenesses were used after their careers were over.

To read the rest, click here.

Foul up 3?

I long have been a believer in fouling up 3 in the closing seconds. Studies suggest it is advantageous, although not statistically so, at the NBA and college levels, although some studies differ.

But with the Spurs just having blown the NBA title by not fouling in that situation (much as I believe in all things Popovich, no way they bounce back from this on the road), is the consensus on this going to change?

Ignorance of the laws (of baseball) is no excuse

There has been a lot of criticism directed at umpires for not knowing the rules. But, as this ESPN feature shows, the rules can be pretty complicated and obscure. It includes a rules quiz, one of which touches on the Infield Fly Rule (I did get that one right). I got 5 out of 10.

Comments on the Redskins Nickname

The issue of the Redskins nickname seems to be hitting a boiling point right now. Here are various pieces talking about it in various contexts. I do agree with the conclusion of the last one (written as an open letter to Dan): You are going to lose this.

McCann on Slate's Hang Up and Listen

Our own Michael McCann was on Slate's sports podcast, Hang Up and Listen, talking about baseball's efforts to suspend players for PED use based on evidence provided by Tony Bosch, the former head of Biogenesis. Mike's segement starts at 17:10. Great segment.

Markel on Chad Johnson's overofficious judge

Dan Markel (Florid State), one of my co-bloggers at PrawfsBlawg, sharply criticizes the judge who rejected a plea deal and jailed Chad Johnson for 30 days for a probation violation because, when asked whether he was satisfied with his counsel, Johnson gave the lawyer a pat on the butt. Markel argues that this illustrates the way judges too-often go wild with their discretion.

NYU SportsBites: Sports, Ethics and the Law with Alan Milstein and Arthur Caplan

Sports Law Blog contributor and leading bioethics and sports litigator Alan Milstein has a terrific interview and conversation with renowned bioethicist Dr. Arthur Caplan of New York University. They discuss Maurice Clarett v. NFL, a case which Milstein served as lead counsel, doping in sports and other sports law issues. The event was hosted by the NYU Sports and Society Program.


Sports, Ethics and The Law Featuring Alan Milstein from Carbon Media on Vimeo.

The Little Book of Basketball Law

Melissa Altman Linsky, who teaches sports law at Emory University, has authored The Little Book of Basketball Law (published by the American Bar Association, 2013).  Here are more details:

The book is for lawyers, law students and sports fans alike and answers questions such as “How can there be two NBA teams in one city?”, “Can the government take land from private homeowners to build a basketball arena?”, or “What rights do professional basketball players have in their own names?” by telling the stories behind the cases. It is an entertaining and informative book about basketball that relays legal decisions concerning basketball in an easy-to-relate-to manner.  

Each chapter is basically a short story with the decisions as the basis for the story. It is part of the ABA's Little Book series - there is a Little White Book of Baseball Law and a Little Green Book of Golf Law. 

Looks like a terrific read and I'll be reading it soon.

Why the District Court's Ruling in 'Penn State' was Legally Wrong

Over at Forbes, I wrote this morning about why aspects of the U.S. District Court for the Middle District of Pennsylvania's decision in the 'Penn State' case were wrongly decided.  In the article, I explain that the court made dubious presumptions that the NCAA is not a commercial actor (a longstanding mistake of the Third Circuit) and that the NCAA president's actions are not innately concerted.

Here is a link to the full article, discussing both points in far greater detail.

Legal Representation in the Biogenesis Scandal

Am Law Daily has an interesting article out examining which attorneys and firms have been retained in connection with MLB's on-going Biogenesis scandal.  The story also details which firms have represented the MLB Players' Association recently.  It is available here.

New Sports Illustrated article: Legal Analysis of MLB Deal's with Biogenesis Director

I have a new column for SI.com on what the deal between Tony Bosch and Major League Baseball means for implicated players and how they can challenge allegations through law.

I was also on The Dan Patrick Show today to discuss this story:

New Sports Law Scholarship--Pt. 3

Recently published scholarship includes:

Joe Meyer, Paying to play (somewhere else): an examination of the enforceability of athletic conferences’ liquidated damages provisions, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 107 (2013)

Mary G. Miller, Comment, The NCAA and the student-athlete: reform is on the horizon, 46 UNIVERSITY RICHMOND LAW REVIEW 1141 (2012)

Neil Millhiser and Rodney K. Smith, The BCS and big-time intercollegiate football receive an “F”: reforming a failed system, 2 WAKE FOREST JOURNAL OF LAW & POLICY 45 (2012)

Matthew Mills, Comment, There is no need to reinvent the wheel: the tools to prevent agent-related NCAA violations may already be in our hands, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 345 (2012)

Samuel Morris, Comment, FIFA World Cup 2022: why the United States cannot successfully challenge FIFA awarding the Cup to Qatar and how the Qatar controversy shows FIFA needs large-scale changes, 42 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 541 (2012)

Jack Newhouse, Book Note, Behind the curtain of baseball’s labor relations: William Gould’s Bargaining with Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 381 (2012)

Michelle Newman, Note, Foul territory: identifying media restrictions in high school athletics outside the bounds of First Amendment values, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 59 (2012)

Steven Pahushkin, Comment, Heads up! Recent federal and state attempts to address nonresident income taxation perpetuate selective enforcement and unfairness of the “jock tax”, 64 TAX LAWYER 961 (2011)

Darsh U. Patel, Wisconsin Interscholastic Athletic Ass’n v. Gannett Co.—a dollar and a stream: exclusive broadcasting license does not violate the First Amendment, 19 SPORTS LAWYERS JOURNAL 363 (2012)

Cynthia Lee A. Pemberton, More of the same — enough already!, 22 MARQUETTE SPORTS LAW REVIEW 597 (2012)

Henry H. Perritt, Jr., Competitive entertainment: implications of the NFL lockout litigation for sports, theatre, music, and video entertainment, 35 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 93 (2012)

Catherine F. Pieronek, The 2010 “dear colleague” letter on Title IX compliance for college athletic programs: pointing the way to proportionality...again, 38 JOURNAL OF COLLEGE AND UNIVERSITY LAW 277 (2012)

John W. Polonis, Comment, Stealing home in Hollywood: why the takeover of the Los Angeles Dodgers illustrates the unjust nature of Major League Baseball’s antitrust exemption, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 785 (2012)

Brian L. Porto, You’ll never work (or play) here again: a lingering question in Title IX retaliation claims brought by coaches and athletes after Jackson v. Birmingham Board of Education, 22 MARQUETTE SPORTS LAW REVIEW 553 (2012)

Erick V. Posser, Case Note, Brady v. NFL: how the Eighth Circuit “saved” the 2011 NFL season by supporting negotiation, not litigation, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 603 (2012)

Josephine R. Potuto, NCAA as state actor controversy: much ado about nothing, 23 MARQUETTE SPORTS LAW REVIEW 1 (2012)

Josephine R. Potuto, They take classes, don’t they?: structuring a college football post season, 7 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 311 (2012)

Geoffrey C. Rapp, Field of broken dreams: the quest for rule-of-law in sports litigation, Reviewing Roger I. Abrams, Sports Justice: The Law & Business of Sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 103 (2012)

Sean Rassel, The necessity for national federations to stand up for themselves, 20 MICHIGAN STATE INTERNATIONAL LAW REVIEW 797 (2012)

Louise Reilly, An introduction to the Court of Arbitration for Sport (CAS) & the role of national courts in international sports disputes, 2012 JOURNAL OF DISPUTE RESOLUTION LAW 63 (2012)

Alison Renfrew, Comment, The building blocks of reform: strengthening Office of Civil Rights to achieve Title IX’s objectives, 117 PENN STATE LAW REVIEW 563 (2012)

Ryan Reszel, Comment, Guilty until proven innocent, and then, still guilty: what the World Anti-Doping Agency can learn from the National Football League about first-time anti-doping violations, 29 WISCONSIN INTERNATIONAL LAW JOURNAL 807 (2012)

David L. Ricci, The worst form of championship, except for all of the others that have been tried: analyzing the potential anti-trust vulnerability of the Bowl Championship Series, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 541 (2012)

Robert D. Richards, When “ripped from the headlines” means “see you in court”: libel by fiction and the tort-law twist on a controversial defamation concept, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 117 (2012)

Michel J. Rockwell, Unnecessary roughness: the single entity defense and the Supreme Court’s misguided encroachment on the NFL’s consumer brand in ... American Needle, Inc. v. Nat’l Football League, 5 PHOENIX LAW REVIEW645 (2012)

Brian C. Root, Note, How the promises of riches in collegiate athletics lead to the compromised long-term health of student-athletes: why and how the NCAA should protect its student-athletes’ health, 19 HEALTH MATRIX 279 (2009)

Bobbi N. Roquemore, Comment, Creating a level playing field: the case for bringing workers’ compensation for professional athletes into a single federal system by extending the Longshore Act, 57 LOYOYLA LAW REVIEW 793 (2011)

Jason P. Rudderman, Major violations for the NCAA: how the NCAA can apply the Dodd-Frank Act to reform its own corporate governance scheme, 23 MARQUETTE SPORTS LAW REVIEW 103 (2012)

Ronald J. Rychlak, Gambling with the Bronx Bombers: betting on, against, and with the Yankees, 3 UNLV GAMING LAW JOURNAL 165 (2012)

Elliot P. Saccucci, Revisiting the NHL collective bargaining agreement: undermining the spirit of the cap, implications to the agent, and prospective remedies for the League’s consideration, 19 SPORTS LAWYERS JOURNAL 145 (2012)

Alexander M. Sanders & Katie Monoc, How baseball united America after the Civil War, 7 CHARLESTON LAW REVIEW 305 (2012-2013)

Robert T. Sharkey, Case Note, Pecover v. Electronic Arts, Inc.: should exclusive licensing agreements made by Madden NFL’s publisher be sacked by the Sherman and Cartwright Acts?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 167 (2013)

Noam Silverman, Regulation of sports agents and college football: perception or reality?, 7 FIU LAW REVIEW 187 (2011)

Christopher Smith, Comment, A necessary game changer: resolving the legal quagmire surrounding expiration of the nonstatutory labor exemption in sports, 14 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 1191 (2012)

Garrett E. Smith, Reckless golf: is “fore” the standard?, 14 T.M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 103 (2012)

Aaron A. Spacone, Comment, Let them train: why the Eighth Circuit’s decision to stay the injunction of the 2011 NFL lockout was incorrect, 45 CONNECTICUT LAW REVIEW 1017 (2013)

Avraham J. Sommer, The national pastime of the American judiciary: reexamining the strength of Major League Baseball’s antitrust exemption following the passage of the Curt Flood Act and the Supreme Court’s ruling in American Needle, Inc. v. NFL, 19 SPORTS LAWYERS JOURNAL 325 (2012)

Ellen J. Staurowsky, “A radical proposal”: Title IX has no role in college sport pay-for-play discussions, 22 MARQUETTE SPORTS LAW REVIEW 575 (2012)

Jeff Stone, A hidden toxicity in the term “student athlete”: stereotype threat for athletes in the college classroom, 2 WAKE FOREST JOURNAL OF LAW & POLICY 179 (2012)

Marissa D. Sunio, Comment, Saving face: protecting the rights of student-athletes and the idea of amateurism, 33 WHITTIER LAW REVIEW 431 (2012)

Zachary Swartz, Note, If it’s broken, let them fix it: why the Gebser pre-litigation notice requirement should apply to Title IX athletics lawsuits, 61 CATHOLIC UNIVERSITY LAW REVIEW 1207 (2012)

Steven J. Swenson, Unsportsmanlike conduct: the duty placed on stadium owners to protect against fan violence, 23 MARQUETTE SPORTS LAW REVIEW 135 (2012)

Ahmed E. Taha, Are college athletes economically exploited?, 2 WAKE FOREST JOURNAL OF LAW & POLICY 69 (2012)

Lance Taubin, Note, Welcome to the real 2011 NBA lockout: where owner-friendly tax provisions and non-monetized benefits color the lockout landscape, 11 CARDOZO PUBLIC LAW POLICY & ETHICS JOURNAL 139 (2012)

Christopher L. Tazzi, Note, To tax or not to tax, that is the question: searching for a solution to the increasing commercialization of intercollegiate athletics, 38 JOURNAL OF COLLEGE AND UNIVERSITY LAW 381 (2012)

Joe Trevino, From Tweets to twibel: why the current defamation law does not provide for Jay Cutler’s feelings, 19 SPORTS LAWYERS JOURNAL 49 (2012)

Lauren T. Warbington, Note, Crossing the line: the Collegiate Licensing Company’s overindulgent attempt to limit small businesses’ online marketing techniques based on frivolous claims of trademark infringement, 19 JOURNAL OF INTELLECTUAL PROPERTY LAW 517 (2012)

Andrew J. Weissler, Unasked questions: applying Title IX’s effective accommodation mandate to interscholastic athletics, 19 SPORTS LAWYERS JOURNAL 71 (2012)

John T. Wendt, Toward harmonization: British Olympic Ass’n v. World Anti-Doping Agency, 23 MARQUETTE SPORTS LAW REVIEW 155 (2012)

Jarryd Werts, Note, Ringing the bell on concussions: the rise of head injuries and cognitive decline in football players, and the NFL’s obligation to improve safety measures, 11 CARDOZO PUBLIC LAW POLICY & ETHICS JOURNAL 173 (2012)

David K. Wiggins, “Strange mix of entitlement and exploitation”: the African American experience in predominately white college sport, 2 WAKE FOREST JOURNAL OF LAW & POLICY 95 (2012)

Britton R. Wight, College football’s BCS (bowl charity system?): an analysis of the characterization of BCS bowls as public charities that receive tax-exempt status, 19 SPORTS LAWYERS JOURNAL 129 (2012)

Antonio S. Williams & Crystal T. Williams, Hitting calories out of the ballpark: an examination of the FDA’s new menu labeling laws and their impact on sports spectatorship, 25 LOYOLA CONSUMER LAW REVIEW 248 (2013)

Jennifer A. Wood, Note, A dirty game: trusting the National Hockey League to play judge, jury, and executioner, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 179 (2012)

Julie G. Yap, Pay or play?: why requiring notice and an opportunity to cure in claims for money damages best serves the compliance goals of Title IX, 22 MARQUETTE SPORTS LAW REVIEW 517 (2012)

HT to my summer research assistant, Alex Savickas, for helping me get caught up.

D.C. Circuit Sides with Comcast in Dispute with Tennis Channel

This week's D.C. Circuit ruling siding with Comcast in its carriage dispute with Tennis Channel came as little surprise. It ruled that the Federal Communications Commission failed to justify its conclusion that the cable provider (known as a "multichannel video programmer distributor" in today's parlance) discriminated against the Tennis Channel (not owned by Comcast) by placing it in a more expensive tier than the Golf Channel and Versus (now the NBC Sports Network). The ruling is available here.

For cable services, the ruling will come as a big relief. The opinion concluded that the FCC's determination Comcast's disparate treatment of the Tennis Channel by tiering it in a more expensive package was not discriminatory under sec. 616 of the 1992 Cable Act, and rejected the Commission's factual basis for making that determination. Judge Williams, writing for the court, stated that the FCC failed to provide "adequate evidence" to bolster its claims of discrimination. He did not address the more fundamental argument made by Comcast -- that the statute, or at least its application, was a First Amendment violation of the free speech rights of the cable provider. Basically, the court found that there were valid reasons for placing the Golf Channel and Versus on a lower, cheaper and more widely distributed tier than Tennis Channel and that there was no evidence that this differentiation was based on the fact that Tennis Channel was not a part of Comcast. Additionally, there was no evidence presented that Comcast would gain any financial benefit by placing Tennis on that same tier of service as the others, noting that no expert witnesses, or written studies were provided. That lack of evidence of any potential financial game was crucial in the court's determination. So, the court essentially rejected the FCC's emphasis on the similarities of the programming on the Golf, Versus and Tennis Channels and the disparate treatment of them, without anything more.

There were two concurring opinions. Judge Edwards discussed procedural issues (not the focus here), but Judge Kavanaugh produced an analysis of sec. 616 in terms of antitrust jurisprudence, with a passing reference to First Amendment standards. As to the antitrust issue, he opined that sec. 616 violations should be based on the same standards of proof as antitrust claims involving vertical concentration because sec, 616(a)(3) requires that the FCC enact regulations that prevent the cable operators from discriminatory conduct which "unreasonably restrains" the ability of the unaffiliated service to fairly compete.  In so doing, he found that there was no per se violation and there was no evidence of undue market power on the part of Comcast (a point that is debatable, given the general monopoly nature of cable operators). Therefore such vertical restraints (as found with the connection between Comcast and Golf/Versus) was presumptively pro-competitive.

Judge Kavanaugh then pushes what I think is a speculative connection between antitrust the First Amendment principles. He states: "applying sec. 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court." Cases that generally applied an intermediate scrutiny test that has been upheld by the "monopolistic characteristics" of cable programmers and the need for access. I am not convinced at the connection and there is no specific mention of such a connection in Turner v. FCC,  512 U.S. 622 (1994) which upheld mandatory carriage requirements under an intermediate scrutiny test. He also that technological changes have weakened any undue market power of cable operators, inferring that the today, unlike the 1990s, cable regulations such as sec. 616 would be harder to justify today.

The majority did not wade into this territory, but nonetheless gave Comcast a big win. It would be more difficult for independent sports channels to provide discrimination, at least in the DC Circuit.

NFL Draft Heads to May

By pushing the NFL Draft back two weeks in 2014 to May 8th-10th, the league showed no favoritism to agents, prospective players, team personnel, or the fans--they all are negatively affected.

1. Agents

While no sympathy will be offered by the general public to agents, pushing the draft back extends the time during which they pick up expenses for their clients.  Traditionally, agents will absorb the costs of pre-draft training which will include combine prep, living expenses, travel, and an assortment of other "benefits."  Now, while powerhouse firms can easily assume the marginal additional expense, agents often spend between $10,000 and $20,000 on each client.

Obviously, for agents with fewer clients or alternative revenue streams, the additional weeks of "investment" in their clients becomes a burden.  Much like the summer of 2011 when the lockout extended the time during which agents covered their client's expenses, there was a clear distinction between what larger agencies were able to cover versus smaller firms or individual agents.

And, let's not pretend that poaching between agents doesn't occur.  This gives more time for agents to continue to recruit the clients of others.  [I won't even get into the role of runners and the impact that Jay-Z/Roc Nation could have during this period.]

2. Players

There is no real benefit to the potential draftable players, other than extended an already difficult time period.  Since the NFL is not changing the dates of the Combine, preparation for elite prospects will still start immediately after the bowl season.  There will still be a rush to sign with an agent, have them pick up training costs, and begin immediate preparation for the Combine.  These players will need to be in peak form for All-Star games, the Combine, perhaps for their school's Pro Days, and then there will still be another 6 weeks before the draft--more than enough time to slip, either physically or with a mistake.
 
And this extends the time that unsigned free agents have to patiently wait for teams to fortify their rosters with rookies (i.e. cheap labor) before they are able to resign with an NFL team.

3. NFL Personnel

Again, no one cares if a scout or assistant GM needs to go without sleep for another two weeks but this maneuver extends the time under which these individuals are under exorbitant amounts of pressure.  The extra two weeks provides no additional insight into a player's potential so there is no evaluative benefit to this additional time.

4. The Fans

Hey, look, another two weeks of your favorite draft prognosticator telling you who your favorite team will select in the 6th Round!  A colossal waste of time--unless you listen to Mike Mayock who, and I'm partial because he's a Boston College alum, is fantastic.

For the future, either the NFL Draft should revert back to April, or the League Year should also be pushed back--thereby moving the Combine, the start of free agency, and other calendar items. However, as it stands today, does anyone see any winners in this move?

New Sports Law Scholarship--Pt. 2

Recently published scholarship includes:

Ben Einbinder, What FINRA can learn from Major League Baseball, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 333 (2012)

Harry Epstein & Daniel Gandert, The Court’s yellow card for the United States Soccer Federation: a case for implied antitrust immunity, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

David Falk, Note, Are professional sports leagues’ control over their member teams and owners in doubt?, 43 RUTGERS LAW JOURNAL 337 (2012)

Gabriel Feldman, Antitrust versus labor law in professional sports: balancing the scales after Brady v. NFL and Anthony v. NBA, 45 UC DAVIS LAW REVIEW 1221 (2012)

Heather M. Field, Throwing the red flag: challenging the NFL’s lessons for American business, 38 JOURNAL OF CORPATION LAW 381 (2013)

Nicholas Fram & T. Ward Frampton, A union of amateurs: a legal blueprint to reshape big-time college athletics, 60 BUFFALO LAW REVIEW 1003 (2012)

Nabeel Gadit, Note, An end to the NCAA’s exploitation of former student-athletes: how O’Bannon v. NCAA highlights the need for an inalienable reversionary interest in the right of publicity for former student-athletes, 30 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 347 (2012)

Matthew Gallagher, The changing face of the “sport of kings”: a brief history of thoroughbred horse racing in the United States, its recent decline, and the legal implications surrounding racing partnerships and syndicates in the current landscape, 19 SPORTS LAWYERS JOURNAL 275 (2012)

Robert M. Gallman, Comment, Enhancement or recovery? The scientific and legal paradox of performance-enhancing substances, 15 SMU SCIENCE & TECHNOLOGY LAW REVIEW495 (2012)

Ephraim Glatt, Defining “sport” under Title IX: cheerleading, Biediger v. Quinnipiac University, and the proper scope of agency deference, 19 SPORTS LAWYERS JOURNAL 297 (2012)

Samantha Glazer, Note, Sporting chance: litigating sexism out of the Olympic intersex policy, 20 JOURNAL OF LAW & POLICYY 545 (2012)

Robert A. Gottfried, Reasonable relocation: antitrust implications of restrictions on movement of professional sports teams, 19 SPORTS LAWYERS JOURNAL 109 (2012)

Jeremy P. Gove, Note, Three and out: the NFL’s concussion liability and how players can tackle the problem, 14 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 649 (2012)

Linda S. Greene, Head football coaches: ending the discourse of privilege, 2 WAKE FOREST JOURNAL OF LAW & POLICY115 (2012)

Nathaniel Grow, Decertifying players unions: lessons from the NFL and NBA lockouts of 2011, 15 VANDERBILT JOUNRNAL & TECHNOLOGY LAW 473 (2013)

Rockwell T. Gust IV, Comment, The California Workers’ Compensation Act: the death knell of NFL players’ “concussion” case?, 44 UNIVERSITY TOLEDO LAW LAW REVIEW 245 (2012)

David Haddock et al., League structure & stadium rent seeking—the role of antitrust revisited, 65 FLORIDA LAW REVIEW 1 (2013)

Courtney D. Hall, Comment, Fishing for all-stars in a time of global free agency: understanding FIFA eligibility rules and the impact on the U.S. Men’s National Team, 23 MARQUETTE SPORTS LAW REVIEW 191 (2012)

Tim Hance, Note, Threading American Needle: defining a narrow relevant market for rule of reason analysis in sports antitrust cases, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 247 (2011)

Angela J. Hattery, They play like girls: gender and race (in)equity in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY247 (2012)

Marcus Hauer, Note, The constitutionality of public university bans of student-athlete speech through social media, 37 VERMONT LAW REVIEW 413 (2012)

Jeremy D. Heacox, Comment, Wisconsin Legislature employs halftime adjustment: how Wisconsin’s “new” Indian mascot law changes the outlook for future challenges to the use of discriminatory nicknames, mascots, and logos in Wisconsin schools, 22 MARQUETTE SPORTS LAW REVIEW 651 (2012)

Diane Heckman, Batter up: a look at the Supreme Court’s lineup, including the interaction with the new chief umpire on the bench, as Title IX marks its fortieth anniversary, 22 MARQUETTE SPORTS LAW REVIEW461 (2012)

Kris Helge, The success of a nation’s soccer team: a bellwether regarding a nation’s electronic information infrastructure, the legal regulations that govern the infrastructure, the resulting citizen-trust in its government and its e-readiness in Nigeria, the DPRK, China, Japan, South Korea, the Netherlands and the United States, 39 NORTHERN KENTUCKY LAW REVIEW 467 (2012)

Aishlin P. Hicks, Note, Unsportsmanlike conduct: female sportswriters as targets for sexual harassment, 23 HASTINGS WOMEN’S LAW JOURNAL 219 (2012)

Joseph M. Hnylka, California drops the ball: the lack of a clear approach to recklessness in sport injury litigation, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 77 (2011)

Justin R. Hunt, Note, To share or not to share: revenue sharing structures in professional sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 139 (2012)

John Imhoff, Comment, Bouchat v. Baltimore Ravens, 56 N.Y. LAW SCHOOL LAW REVIEW 1619 (2011-2012)

Trevor Jack, Note, Blue field of dreams: a BCS antitrust analysis, 39 JOURNAL OF COLLEGE & UNIVERSITY LAW 165 (2013)

Aiden Johnson, Note, Update: The curious case of Oscar Pistorius & Caster Semenya, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 89 (2012)

Kendall K. Johnson, Enforceable fair and square: the right of publicity, unconscionability, and NCAA student-athlete contracts, 19 SPORTS LAWYERS JOURNAL 1 (2012)

Cassandra Jones, Book Note, Reviewing Deborah Brake, Getting in the Game: Title IX and the Women’s Sports Revolution, 22 MARQUETTE SPORTS LAW REVIEW 613 (2012)

Richard T. Karcher, Broadcast rights, unjust enrichment, and the student-athlete, 34 CARDOZO LAW REVIEW 107 (2012)

Richard T. Karcher, Redress for a no-win situation: using liquidated damages in comparable coaches’ contracts to assess a school’s economic damage from the loss of a successful coach, 64 S.C. LAW REVIEW 429 (2012)

Joseph B. Kenney, Comment, Showing on-field racism the red card: how the use of tort law and vicarious liability can save the MLS from joining the English Premier League on racism row, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 247 (2013)

Jordan I. Kobritz & Jeffrey F. Levine, Don Fehr leads the NHLPA: does the NHL have anything to fear?, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL178 (2011)

Jordan I. Kobritz et al., Don Fehr trades his ball for a puck: will he continue to score?, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 521 (2012)

Shane Kotlarsky, What’s all the noise about: did the New York Yankees violate fans’ First Amendment rights by banning vuvuzelas in Yankee Stadium?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 35 (2013)

Katherine Kraschel, Note, Transcending space in women’s only spaces: Title IX cannot be the basis for exclusion, 35 HARVARD JOURNAL OF LAW & GENDER 463 (2012)

Liz Larson, Note, More than just spelling: How differences in international labor laws create barriers to expansion of the American National Sports Leagues into Europe intercollegiate sports, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 288 (2011)

Benjamin I. Leibovitz, Comment, Avoiding the sack: how Nebraska’s departure from the Big 12 changed college football and what athletic conferences must do to prevent defection in the future, 22 MARQUETTE SPORTS LAW REVIEW 675 (2012)

Amanda Leone, Comment, Buying influence in college athletics: how much does it cost to put in your two cents?, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 221 (2013)

Michael H. LeRoy, An invisible union for an invisible labor market: college football and the union substitution effect, 2012 WISCONSIN LAW REVIEW 1077 (2012)

Michael H. LeRoy, Federal jurisdiction in sports labor disputes, 2012 UTAH LAW REVIEW 815 (2012)

Clinton R. Long, Promoting competition or preventing it? A competition law analysis of UEFA’s financial fair play rules, 23 MARQUETTE SPORTS LAW REVIEW 75 (2012)

Joseph M. Long, A contextual study of the non-profit duty of obedience: the National Collegiate Athletic Association, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 125 (2013)

James P. Looby, Reasonable accommodations for high school athletes with disabilities: preserving sports while providing access for all, 19 SPORTS LAWYERS JOURNAL 227 (2012)

Brian Lovell, Note, Eighteen years old and ready for driving, cigarettes and war, but not basketball: why the NBA is committing a foul on the age eligibility rule, 26 JOURNAL OF CIVIL RIGHTS & ECONOMIC DEVELOPMENT 415 (2012)

Rohani Mahyera, Comment, Saving cricket: a proposal for the legalization of gambling in India to regulate corrupt betting practices in cricket, 26 EMORY INT’L LAW REVIEW 365 (2012)

Heather M. Mandelkehr, Comment, When toning shoes strengthen nothing more than likelihood of lawsuit: why the Federal Trade Commission needs guidelines regarding proper substantiation of fitness advertisements, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 297 (2013)

Samuel G. Mann, Note, In name only: how Major League Baseball’s reliance on its antitrust exemption is hurting the game, 54 WILLIAM & MARY LAW REVIEW587 (2012)

Michael LAW Martin, It’s not a foul unless the ref blows the whistle: how to step up enforcement of the UAAA and SPARTA, 19 SPORTS LAWYERS JOURNAL 209 (2012)

James Masteralexis et al., Enough is enough: the case for federal regulation of sport agents, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 69 (2013)

James T. Masteralexis & Steve McKelvey, This tweet sponsored by…: the application of the new FTC Guides to the social media world of professional athletes, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 222 (2011)

Alfred D. Mathewson, Remediating discrimination against African-American female athletes at the intersection of Title IX and Title VI, 2 WAKE FOREST JOURNAL OF LAW & POLICY 295 (2012)

Amy C. McCormick and Robert A. McCormick, Race and interest convergence in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 17 (2012)

Eric M. McGregor, Comment, Hooray beer!?: how the reemergence of alcohol sales at campus stadiums will affect universities, 23 MARQUETTE SPORTS LAW REVIEW 211 (2012)

Ryan McLaughlin, Note, Warning! Children’s brains are in danger: legislative approaches to creating uniform return-to-play standards for concussions in youth athletics, 22 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW 131 (2012)

5 Sports Law Questions & Answers for the Mississippi Sports Hall of Fame

I'm honored to be the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where I taught full-time from 2005 and 2008. I now teach a sports law course there every May and I remain active in the Mississippi sports and legal communities. I consider Mississippi my other home state.

A few days ago, I answered 5 sports law questions for Rick Cleveland, the executive director of the Mississippi Sports Hall of Fame & Museum. Topics include NFL concussion litigation, Bountygate, legality of the Bowl Championship Series, the NCAA banning Twitter hashtags and O'Bannon v. NCAA.  Here's an excerpt:

Part of the problem is that the NFL and NFLPA have a strained relationship, to put it mildly, partly due to the lockout and partly due to years of not trusting one another.

Part of the problem is also that the NFL commissioner has tremendous, non-reviewable powers, and that the players accepted those powers in collective bargaining.  Had the lockout not dragged on right up until the 2011 season, I suspect the players would have had more time to negotiate more due process.  But they didn’t, so the commissioner’s authorities remain quite strong.

To read the rest, click here.

"Sport as Speech" and Non-Sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:

Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)

Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)

Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)

Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012) 

Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:

We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players. 

  

Warren Zola article in Boston Globe Magazine

Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid.  Be sure to check it out.

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  These posts  appear on Saturdays.  First post can be read at this link, the second at this link, the third at this link, and the fourth at this link.  Here is the fifth:

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"Pros or Cons" Thoughts For The Modern "Sports Attorney"

Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

 (ARTICLE #5)

Know Your Role

On occasion, an oversized lineman may find the football bouncing into his arms on a fortunate bounce from a fumble to which he may then lumber anywhere from a few to more than he thought he was able, yards into the end zone for an awe-inspiring score. However, this is not his expertise and far from the position assigned which he has spent in years of training, practice and preparation.

So what happens when you find yourself with the "perfect client" but the client needs work in a field in which you lack essential experience? Do you run with it and hope for the best? In the alternative, do you take a look at the clock, use your last time out and confer with the coach?

The prior installments should suggest the answer. Although a lawyer need not have sufficient competence to handle a matter before taking it on, the lawyer must either be prepared to acquire the competence on a timely basis or to bring in someone who already has the competence. And just as quarterbacks do not necessarily make the best tackles, so too a lawyer-client team may be best served if each player fills the role, and only the role, for which that player has the greatest expertise. An attorney's job is to put the client's goals first and foremost. And even from the attorney's selfish point of view, time spent by an attorney to learn what other lawyers already know may be time that the lawyer simply cannot bill to the client. In other words, both Al and Mega may be best served if Al is, and remains, quarterback rather than trying to play eleven positions at once.