Thursday, December 30, 2010
Peter King of Sports Illustrated, who had reported the conversation, is amazed at the reaction, tweeting recently (and inappropriately hilarious) that “this story has longer legs than Giselle,” referring to Giselle Bundeschen, the wife of Tom Brady, Vick’s main rival for this year’s MVP vote.
Fox News, the new standard-bearer for right wing craziness, spent much of Tuesday berating the President for his support of Vick. Tucker Carlson, filling in for Sean Hannity, actually opined that Vick “should have been executed” for his crimes. This from the Sarah Palin Network in love with the candidate who gloried in the shooting of a caribou for no other purpose than higher television ratings.
Michael Vick’s story is well known. Perhaps less publicized are the appalling facts about imprisonment in America. Currently, more than 7 million people are either in prison, on probation or on parole in the United States, which amounts to 1 in 18 adult males, more than four times the per capita rate in England, eleven times in a country like Norway. Of these, 70 % are people of color. Of those released from prison, about one third end up accused of another crime within three years.
Whatever one thinks of Michael Vick’s crime and punishment, his rehabilitation and maturation following his release can be a lesson in ethics. It should be a source of inspiration for the idea that people can change for the better and make much of their lives even after serving time. As a society, we can learn how to forgive those who have confronted their past and paid for their sins. The President was right to applaud the Eagles for their offer to Michael Vick and those who have criticized the President are wrong.
Monday, December 27, 2010
And again, I love Tony Packo's.
Friday, December 24, 2010
Ever since people have trod meadows and moors intent on striking hard white balls with bottom-weighted clubs, people have been suing one another for shots gone awry. Golf has evolved into the perfect litigation machine, beloved by lawyers, perhaps because so many are making a good living filing suits, defending suits and providing advice on injuries, course and product design, environmental damage, discrimination and almost anything that could conceivably find its way into a courtroom.
The entire story is available here.
Wednesday, December 22, 2010
NCAA Bylaw 16.02.3 prohibits student-athletes from receiving "extra benefits" not offered to the general public from university employees and boosters:
“An extra benefit is any special arrangement by an institutional employee or a representative of the institution’s athletic interests to provide a student-athlete...a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes...is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution’s students...on a basis unrelated to athletics ability."Here, the athletes' tattoos were supposedly provided by Columbus parlor "Fine Line Ink." Presumably, the expansive definition of booster would sweep in the shop in question.
Although it seems these players will get to watch the game from the hotel, there are two possible lines of defense. First, is getting a tattoo, which one will surely regret years from now, really a benefit? (OK, probably). But is it a benefit not available to the general public. According to Fine Line Ink's myspace page, free tattoos are available to anyone willing to host a tattoo party:
Call and ask us how you can get a free tattoo for hosting a party at our place or yours! Invite all your friends, for food, drinks, and Tattoos & Piercings! Some restrictions apply call shop for details.So maybe this was a "party"?
Coach Jim Tressel no doubt regrets being so sanguine the last time Terrelle's ink made the news.
First we saw Strength Team Coach Sal Alosi and the Gang of Four, standing toe to toe, trying to keep the Punt team’s gunner from returning to the field of play and then tripping him. Such behavior eclipsed Spygate as the worst case of sportsmanship in recent NFL history.
Now we have Toegate with the Head Coach of those same Jets supposedly starring in a series of YouTube videos demonstrating deep admiration for his wife’s extremities. What next? I know I always write about the need to judge professional athletes by their work on the field, accepting that they are as flawed as the rest of us outside the lines. But for the life of me, I never expected to see something like this. It’s not exactly unethical. In fact, I don’t know what to call it. Let’s just say it gives new meaning to what Football is all about.
* * *
To add to Stewart's discussion, the Age Discrimination in Employment Act protects people 40 and up from discrimination due to age. I would be interesting in knowing 1) if coaches' termination settlements (fired coaches usually get about half of their remaining salary) include release of age discrimination claims in exchange for payment; 2) whether there is any empirical support for a finding of age discrimination; and 3) whether the EEOC has looked into this subject. Might not be a bad topic for a student looking for a law review/journal note topic.
Tuesday, December 21, 2010
A New Frontier for Sports and Antitrust Law
January 8, 2011
Section on Law and Sports
Yosemite C, Ballroom Level, Hilton San Francisco Union Square
Edmund P. Edmonds, Notre Dame Law School
Gabriel A. Feldman, Tulane University School of Law
- Author of The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court's Opportunity to Reject a Flawed Defense, 2010 WISCONSIN LAW REVIEW (2010)
Michael A. McCann, Vermont Law School
- Author of American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE LAW JOURNAL 726 (2010)
- Author of The NBA and the Single Entity Defense: A Better Case? 1 HARVARD JOURNAL OF SPORTS AND ENTERTAINMENT LAW 40 (2010)
On May 24, 2010, the United States Supreme Court issued its eagerly anticipated decision in American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010). In a unanimous decision authored by Justice Stevens, the Court reversed and remanded the Seventh Circuit's opinion regarding the licensing of the NFL's intellectual property. The case involves a fundamental question of whether or not the National Football League is a single entity, and, as such, exempt from attack under Section 1 of the Sherman Antitrust Act. The Court held that the league, through its separate corporation NFL Properties, was involved in concerted action when it granted an exclusive license to one vendor, and, thus, not categorically insulated from a Section 1 challenge. The case presented the Supreme Court with an opportunity to clarify its decision in Copperweld Corp. v. Independence Tube Corporation, 467 U.S. 752 (1984).
Monday, December 20, 2010
* I also recommend reading Proskauer and Rose's recent issue of Three Point Shot, which includes an article on Jim Brown suing Electronic Arts for misappropriation in the Madden football game, which features "historic" teams. Rick Karcher has blogged about the Jim Brown litigation.
* Jimmy Golen of the Associated Press has an interesting piece on the NFLPA telling its members to save payments because a lockout seems likely. Jimmy raises a particularly compelling point that hasn't received a lot of attention, but could becoome hugely important considering how many injuries NFL players suffer: NFL owners are threatening to discontinue the players' health care during a lockout. Keep in mind, though, Article XLIX of the league-union's CBA says that benefits should be continued through the plan year. "Period of Benefits: Subject to the extension provided in Section 2, players will continue to receive the benefits provided in this article through the end of the Plan Year in which they are released or otherwise sever employment."
* Brian Baxter of AM Law Daily has an insightful read on various sports law issues, including a lawsuit over ownership of the phrase "ultimate fighting":
Enter Ubisoft Entertainment, one of the world's largest video game companies. In November, the French company stepped into the octagon with its latest offering--Fighters Uncaged, which allows players to become the "ultimate fighting weapon" in a world of underground street fighting. Ubisoft now faces a lawsuit filed by UFC over the use of the words "ultimate fighting," . . .*A former student of mine, Andrew Delaney, has helped launch the Supreme Court of Vermont Law Blog, which is already providing solid analysis of Vermont legal issues. Andrew is co-founder of the National Sports and Entertainment Law Society and recently posted on SSRN a copy of his article "Taking a Sack: The NFL and its Undeserved Tax-Exempt Status".
* Justin Ross (Indiana University) and Robert Dunn (West Virginia University) have posted on SSRN a piece from a few years back that is still quite relevant and interesting: "The Income Tax Responsiveness of the Rich: Evidence from Free Agent Major League Baseball All-Stars". Their key conclusion: there is "evidence that the wages of this subset of players do adjust to offset the burden of state income taxes, specifically a 1% decrease in net-of-tax rate leads to a 3.3% increase in salary."
* Jeff Levine and Bram Maravent have posted on SSRN a copy of their article "Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season?"
* Libby Sander of the Chronicle of Higher Education has a good piece on the NCAA considering a national pro-sports counseling panel. The NCAA is drawing heavily on research and analysis found in"Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment ", an article recently published in the Cardozo Arts and Entertainment Law Journal and authored by Warren Zola (Boston College Assistant Dean, Sports Business Professor/Sports Attorney, and Chair of BC's Professional Sports Counseling Panel), Glenn Wong (UMass Isenberg School of Management sports business professor), and Chris Deubert (Associate at Ginsberg & Burgos).
* Not sports law, but if I'm an NFLPA agent, I think I'd be less inclined to direct one of my clients to play for Tom Coughlin after he berated his punter, Matt Dodge -- who admittedly made a terrible mistake by not kicking the ball out of bounds -- at mid-field following yesterday's Giants historic collapse at the hands of DeSean Jackson, Michael Vick and the Eagles.
Obviously, Dodge made a mistake, but there were many mistakes by other Giants players and Giants coaches that contributed to yesterday's loss (for instance, why did no one tackle Jackson?). I think coaches should try to avoid further embarrassing players who are already very embarrassed - the game was over and everything Coughlin said to Dodge could have been said in the locker room. Lecturing an NFL player like he's 12-years old, in front of tens of thousands of people, just makes a coach look bad.
Saturday, December 18, 2010
Sports Lawyers in Action: How Katten Muchin Rosenmann Counsel Assisted White Sox in Internal Kickback Probe
Here's an excerpt from Brian Baxter's Law.com article:
The ChiSox probably hope the splashy signings overshadow some less-positive recent news about the franchise: the decision by federal prosecutors in the Windy City to charge former senior director of player personnel Dave Wilder and two scouts with fraud.To read the rest of this excellent article, click here.
Wilder and scouts Jorge Oquendo Rivera and Victor Mateo are alleged to have taken kickbacks from young Latin American players in the team's minor league system. A 17-page indictment accuses the trio of illegally defrauding 23 prospects out of $400,000 between December 2004 and February 2008.
It was in the summer of 2008 — after the White Sox fired Wilder, Mateo, and another scout in the wake of an internal investigation into the team's Latin American operations — that reports first surfaced of possible fraud in the signing of Dominican players.
* * *Assisting [Sheldon Zenner, the co-chair of Katten Muchin Rosenman's white-collar criminal and civil litigation practice] was Katten litigation associate Bryan Stroh, a former baseball player at Princeton. The two worked closely with White Sox executive vice president and Katten alum Howard Pizer, team general counsel John Corvino, and staff on the baseball side in arranging interviews at the team's home at U.S. Cellular Field.
"It seemed a lot easier to do those interviews here rather than [in the Dominican]," Zenner said. "To be frank, lawyers' time can be expensive, and that doesn't even include travel time and translation issues. One major challenge was getting them in an environment where they felt comfortable."
Given that most of those being interviewed were low-level minor league players — some of whom had been in the U.S. for only a short time — Zenner said that being questioned in a major league ballpark by many of the team's top brass left the young Dominican players terrified.
"A lot of these kids were scared stiff and had no idea why there were being called in," Zenner said. "It took a little while to assure them that there weren't being fired and had not done anything wrong, but that we needed them to be truthful with us. Like low-level folks in any organization, they were worried about the potential ramifications of implicating someone higher up in that organization."
Stroh added that many of the players had no idea that something was even wrong until they started talking with their colleagues elsewhere in the White Sox organization.
"They were just going about their business of playing baseball," he said. "It took awhile for some of them to realize that they weren't the only ones that didn't have all their money. Many of these guys were largely uneducated because they had spent most of their lives training to play baseball because that's the best chance to make money and provide for their families."
Friday, December 17, 2010
This defense draws on a line of antitrust precedent dating back to the Supreme Court's 1962 decision in Brown Shoe Co. v. United States, in which the Court famously stated "it is competition, not competitors, which the [Sherman] Act protects." Following Brown Shoe, courts have increasingly required antitrust plaintiffs to establish that a challenged restraint harm consumers, rather than simply hurt a competing firm in the larger competitive marketplace.
This consumer welfare argument is probably the BCS's strongest defense in response to a group boycott claim focusing on harm to the non-BCS Conferences. While the BCS's ultimate chances of success on this argument are uncertain, the defense is not as foolproof as the BCS would have people believe. Indeed, as I discuss in my forthcoming article "Antitrust & The Bowl Championship Series," there are several significant counter-arguments that can be asserted against the BCS on the consumer welfare issue.
As an initial matter, the Supreme Court has never considered whether a showing of harm to consumer welfare is necessary in a group boycott claim. While the Court could of course ultimately hold that consumer welfare must be implicated in group boycott cases, that outcome is not necessarily certain, given that a classic group boycott claim is - at its root - premised on harm to a competing firm.
More significantly, though, a plaintiff challenging the BCS under antitrust law can point to analogous case precedent to argue that the BCS does in fact harm consumers in a way that is cognizable under antitrust law. Specifically, in the 2004 case of Metropolitan Intercollegiate Basketball Ass'n v. National Collegiate Athletic Ass'n, 339 F.Supp.2d 545 (S.D.N.Y. 2004), the promoters of college basketball's National Invitational Tournament (NIT) sued the NCAA, alleging that an NCAA rule requiring that all teams selected for the NCAA's post-season college basketball tournament exclusively play in that tournament unfairly harmed the competing NIT, preventing the NIT from assembling the best possible field of teams for its own tournament. In response, the NCAA -- like the BCS -- argued that its regulation did not harm consumers, but instead at most only harmed a competitor to the NCAA, and therefore did not violate antitrust law. The Southern District of New York rejected this argument, finding that it could not distinguish harm to the competing NIT from harm to competition itself. Specifically, the court held that because the NCAA's rule prevented the NIT from offering consumers the most competitive basketball possible, consumer welfare had been sufficiently implicated to allow the NIT to proceed with its antitrust case.
A plaintiff challenging the BCS can rely on this precedent to argue that the BCS similarly implicates consumer welfare. For example, this year both Virginia Tech and UConn received automatic bids to BCS bowl games by virtue of winning the ACC and Big East, respectively. Those invitations came at the expense of higher-ranked teams left out of BCS bowl games, such as tenth-ranked Boise State, who was relegated to the MAACO Bowl Las Vegas. As a result, one could argue that football fans have been harmed by not being able to watch the most competitive BCS games possible, such as one featuring Boise State against ninth-ranked Michigan State, another highly regarded team left without a BCS bid. Similarly, a plaintiff could also argue that the BCS harms consumer welfare when it distributes a disproportionately lower share of revenue to participating non-BCS Conference schools, insofar as these financial discrepancies help foster competitive disparities throughout college athletics. In other words, because the six BCS Conferences receive twice as much revenue for their participation in a BCS bowl game as does a participating, non-BCS Conference, the BCS schools are able to use this revenue advantage to field stronger teams not only on the gridiron, but across a number of different sports. As a result, consumers are thus deprived of the most competitive college athletics events possible at the non-BCS Conference level.
Third, a plaintiff could also point to recent surveys showing that anywhere from 63 percent to 90 percent of college football fans have an unfavorable opinion of the BCS as further evidence that the BCS generally harms consumer welfare.
Finally, the consumer welfare defense likely would not protect the BCS from a potential price fixing claim, which could be alleged insofar as the BCS enables (i) formerly independent, competing entities (the participating conferences and bowl games) to collectively determine the amount of revenue to be distributed to BCS participants, and (ii) various BCS bowls to forgo competition by collectively selling their broadcast rights to television networks. In either case, harm to consumers could be established by pointing to the fact that both ticket prices and television fees rose significantly following the formation of the BCS, costs that have ultimately been shouldered by consumers. While some of these increases can undoubtedly be attributed to higher demand resulting from the BCS's creation of a national championship game, at least some portion is almost certainly the result of the elimination of competition between the formerly competing entities.
Therefore, contrary to the recent statements of the BCS's Executive Director, I do not believe that the consumer welfare defense would necessarily save the BCS from an antitrust suit. While the defense may ultimately enable the BCS to prevail in a group boycott case, there are strong arguments to the contrary available to a plaintiff challenging the system under such a theory. Even then, the defense likely would not offer the BCS protection against a possible price fixing claim. As a result, I believe that the BCS currently remains vulnerable to an antitrust attack.
Thursday, December 16, 2010
Doing this book was a great experience, as well as an educational one. I learned that editing chapters is, in some ways, harder than writing things yourself, because you have to balance and preserve multiple voices. I also learned a lot about organizing an edited volume, in particular the need to over-solicit chapters and to see the big picture in advance when finding contributors and seeking chapters on particular issues. I do think the final product tells the full story of the Duke mess from a number of different perspectives and a number of different disciplines, which is what I was hoping to do.
And hey, just in time for holiday shopping.
New Book Publication: Reversing Field: Examining Commercialization, Labor, Gender, and Race in 21st Century Sports Law
Here's a description:
Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.I contributed a chapter to the book and it was titled Using Social Psychology to Evaluate Race and Law in Sports. Other contributors include: Ronald Althouse, Dr. Julian Bailes, Deborah Brake, Dana D. Brooks, Sherri Burr, Todd J. Clark, David Cornwell, andré douglas pond cummings, Timothy Davis, N. Jeremi Duru, Leonard J. Elmore, Stacey B. Evans, John Fisher, Bernard Franklin, William B. Gould IV, David C. Hardesty Jr., Jeffrey Hirsch, Floyd Keith, Marlon LeBlanc, Anne Marie Lofaso, Alfred Mathewson, Cyrus Mehri, Barbara Osborne, Andre L. Smith, Bethany Swaton, Kenneth Shropshire, and Dennis Walsh.
Here are some additional related links:
Watch the 2007 Symposium that inspired this book.
Watch a Vidcast about this book.
Watch an Interview with andré douglas pond cummings about this book.
Watch an Interview with Anne Marie Lofaso about this book.
Congrats again to dre and Anne Marie!
Tuesday, December 14, 2010
Similarly, the rules in our games don’t always include what we know to be moral or righteous behavior, or good sportsmanship. Competitive sports at the highest level seem to favor the Lombardian view that “winning is the only thing” throwing aside the old adage that what matters is “how you play the game.”
In just the last few year or so, we have borne witness to a variety of events tinged with ethical implications: the life stories and travails of Reggie Bush, Michael Vick, Maurice Clarett, Marion Jones, Ben Johnson, Cam Newton, Barry Bonds, and Roger Clemmons, the whole performance enhancing drug mess, Tim Donaghy’s confessions about reffing in the NBA, Derek Jeter’s overly dramatic tomfoolery at the plate, Belicheck’s spygate, Armando Galarraga’s perfect behavior in the perfect game that wasn’t, the feigning injury ploy used by more than one opponent of the fast moving Ducks of Oregon, Jason Werth’s money is all that matters choice to play for the lowly Nationals, Cliff Lee’s money is not everything choice to come home to the Phils, and most recently the outrageous behavior of Sal Alosi on the sideline of the J E T S Jets.
In some sports like baseball, a certain amount of cheating is tolerated, even encouraged, in basketball athletes seemingly on every play claim they were fouled or never fouled. In golf, of course, sportsmen still police themselves, readily admit to wrongdoing, keep their own score and assess penalties on themselves when the rules require it. Yet only in football, sometimes the most brutal of games, is there actually a penalty for “unsportsmanlike conduct.”
What do we want to see from these folks inside and outside the lines? Must they show us honor and integrity or should they “just win, baby”? Most professional athletes, after all, fit the description Rick Blaine gave in Casablanca when asked what kind of man Captain Renault was: “Just like any other man, only more so.” All as human as humans can be.
Cliff Lee's decision to go to Philadelphia is interesting from a state and local tax perspective. It had appeared that Lee's choice was between the Yankees (in a state with some of the nation's highest state income tax rates) and the Rangers (in a state with no state income tax). Presumably, the Yankees' bid was designed to offset some or all of the tax disadvantages of playing in New York.
The Phillies confronted essentially the same tax competition with the Rangers as did the Yankees. Pennsylvania is a high tax state in which to live and work. The City of Philadelphia has been among the most aggressive municipalities taxing nonresident athletes for the days they play in Philadelphia.
The obvious lesson is that taxes aren't everything. The sublter lesson is that the Phillies likely paid more for Lee than they would have had they been located in a low tax state and think they will recoup in ticket sales or other revenue streams the extra amounts they pay Lee because of the Pennsylvania tax burden. Thus, in the final analysis, that burden likely falls on the fans.
Sunday, December 12, 2010
After the game, the 33-year-old Alosi owned up to intentionally tripping Carroll: "I made a mistake that showed a total lapse in judgment. My conduct was inexcusable and unsportsmanlike and does not reflect what this organization stands for."
What will happen? A few things:
1) Alosi will likely be fined and suspended by the NFL under the league's Personal Conduct Policy, which though normally associated with NFL players, actually covers NFL team employees, as well. Expect the suspension to last the remainder of the season. Not only was Alosi's move a complete cheap shot, it was also dangerous: he could have seriously injured Carroll, who seemingly had no way of knowing that a Jets coach would try to trip him. Sure, Carroll was on notice that he might be tackled by a Jets player on the field, but since when do assistant coaches try to trip you while you're running near the sideline? Alosi was also really cowardly - it would be one thing if a Jets player dished out a cheap shot, because he would do so knowing that there could be retribution. But a Jets coach who does so is safely on the sideline, away from any harm.
2) The Jets may also be fined by the NFL. Like respondeat superior/vicarious liablity with an employer and employee, the Jets are responsible for their coaches. Was this a one-time stupid decision by an assistant coach, or was head coach Rex Ryan aware that Alosi might do something like this?
3) Alosi could be fired by the Jets, though his apology probably helps him there. If he has a pattern of misconduct, though, then a firing may be more justifiable.
4) Carroll suffered a knee injury from the tripping; he limped off the field. If the injury proves serious, he could sue Alosi for battery (intentional harmful contact) and also the Jets under a vicarious liability claim. There's a famous case usually taught in sports law classes called Hackbart v. Cincinnati Bengals, the take-away from which is that while NFL players assume the risk of on-field injuries by playing NFL football, they don't assume all risks, including those for clear cheap shots. If Alosi's move wasn't a cheap shot, I don't know what is.
Update: Bruce Allen of Boston Sports Media Watch examines "Who Ordered the Jets 'Sideline Wall?'". Here's an excerpt:
Bruce may be on to something and I have a feeling this controversy won't be going away quickly. Keep in mind, if the Jets broke rules in ways that endangered the safety of opposing players, the penalty could be worse than what the Patriots received for "Spygate" (where they engaged in some videotaping that broke rules -- Bill Belichick was fined $500,000 and the Patriots had to forfeit a 1st round pick). Endangering player safety seems worse than taping other team's signals.
I heard a WFAN caller (the infamous incarcerated bob) claim that two Jets players said that the Jets were angry that the Dolphins gunner had been going out of bounds during kickoffs, and that this formation was done to stop that. . . .
So, Jets strength coach Sal Alosi and [practice squad players] were standing the zone marked for “Coaches and substitution players only” and they were lined up as close to the edge – both to the playing field and edge of the bench area zone as humanly possible.
Definitely a planned lineup, no? Who had them do this?
I don’t think the plan was for Alosi to stick his knee out and knock the player down, but he was put into that position. By whom?
Friday, December 10, 2010
To begin, though, I agree with a lot of what Mike wrote. For instance, I agree that the BCS can credibly argue that it has created several pro-competitive benefits, such as the creation of a national championship game. I also agree that an antitrust suit against the BCS would itself be unlikely to directly result in the creation of a playoff (although I do believe that a verdict against the BCS would ultimately pave the way to the NCAA adopting a playoff).
However, where I differ from Mike is that I do not think that the pro-competitive benefits created by the BCS would necessarily save the system under antitrust law. Specifically, as Gabe Feldman's excellent 2009 law review article illustrates, when applying the rule of reason most courts would not only balance the system's pro- and anti-competitive effects, but would also (for better or worse) consider whether the BCS's pro-competitive benefits could be similarly achieved via less restrictive, alternative means. In other words, courts would ask whether the BCS could create the same pro-competitive benefits in another way, one that doesn't carry the same anti-competitive ramifications.
For example, I have previously argued that the BCS can be accused of violating antitrust law by unequally distributing its revenue to the disadvantage of the non-automatically qualifying, so-called "non-BCS Conferences." Notably, following last season, the BCS distributed at least $18 million in revenues to each of the six BCS Conferences, while the five non-BCS Conferences collectively received a total of only $24 million, despite two non-BCS schools (Boise State and TCU) having been selected to participate in BCS bowl games. Should a group boycott claim be asserted against the BCS on this basis, the creation of a national championship game is unlikely to save the BCS under the rule of reason, because a plaintiff could easily argue that this same pro-competitive benefit could be obtained in a less restrictive system, one where all BCS participants are rewarded equally (or, at least, more fairly) for their participation, regardless of their membership in a BCS Conference. Therefore, because I believe that the BCS is unable to point to a pro-competitive benefit that could not likewise be obtained via less restrictive, alternative means, I believe that it fails to satisfy the rule of reason.
Also, while I agree with Mike that the use of computer ranking systems in the BCS would normally support the legality of the current system, in this case I think that that benefit is mitigated by the questionable reliability of the BCS's computer systems. In particular, as Jeff Passan and Dan Wetzel (authors of the must-read "Death to the BCS") have pointed out, the BCS's computer rankings fail to account for margin of victory, an omission that renders them of highly questionable merit, and has actually resulted in several prominent statisticians calling for a formal boycott of the BCS. The omission of margin of victory most directly impacts schools from the non-BCS Conferences, who generally have to rely on beating lesser competition by significant margins as evidence of their competitive strength. Moreover, just this week several errors resulting from computer miscalculations were discovered in the final BCS Standings, highlighting the lack of safeguards and transparency in the present system.
Similarly, while I also agree that maintaining the significance of the regular season in theory provides a strong pro-competitive argument in favor of the BCS, one can argue that the BCS on balance actually detracts from the regular season for several reasons. First, in the BCS-era major conference teams have become increasingly less likely to schedule challenging regular season, non-conference games, for fear of sustaining a crippling early season defeat. More significantly, though, the BCS renders the vast majority of Division I football games irrelevant to the national championship race, including any late-season games not featuring one of the handful of teams still in the title race.
Finally, Mike also notes that the BCS could defend itself from a claim that it unfairly discriminates against the non-BCS Conference teams by arguing that the current selection process and revenue distribution policies simply reflect the current competitive landscape, in which demand is higher for games involving BCS Conference schools. Indeed, University of Nebraska chancellor Harvey Perlman has himself made this very argument in defense of the BCS. The problem with this argument is that over the last few years BCS bowl games involving schools from non-BCS conferences have actually generated higher television ratings and stadium attendance than some BCS games involving only BCS Conference schools. Most notably, the TV ratings for last year's showdown between non-BCS schools Boise State and TCU in the Fiesta Bowl outdrew the Orange Bowl (featuring two BCS Conference schools) by a significant margin. In any event, this defense by the BCS would also likely succumb to the less restrictive alternatives inquiry, in that the BCS could obtain all of its current pro-competitive benefits under a system in which each conference is rewarded for its own individual contributions. In other words, rather than categorically awarding each of the six BCS Conferences one large sum of money, while giving the non-BCS Conferences a significantly smaller sum, the BCS could instead individually assess the respective contributions of the various participating conferences when deciding how to distribute its revenue. This year, such a system would undoubtedly award a greater share of the pie to third-ranked TCU and its Mountain West Conference than unranked UConn and the Big East Conference. Under the BCS's current revenue distribution policies, though, the Big East will likely take home more than twice as much revenue from the BCS as will the Mountain West Conference.
Therefore, while reasonable minds can of course differ, I believe that on balance the current BCS does in fact violate antitrust law. That having been said, given the unpredictable nature of the jury trial process, I admit that the outcome of an antitrust suit against the BCS would be far from certain.
For more on these (in my mind) fascinating issues, be sure to check out Mike's forthcoming law review article "Antitrust, Governance, and Postseason College Football," and my own "Antitrust & The Bowl Championship Series."
Thursday, December 9, 2010
The BCS also arguably enhances competition through its use of empirically-influenced rankings. Each team's BCS ranking is a composite of three equally-weighted components -- the USA Today Coaches Poll, Harris Interactive College Football Poll (which comprises 114 voters, including former coaches, players, and journalists) and an average of six computer-based rankings that incorporate largely objective measurements, such as won-loss record and strength of schedule. To be sure, this arrangement is complex and partially opaque -- private companies that run each computer rating can shield their formulas from public scrutiny. Nonetheless, the use of factual criteria to complement the subjective impressions of coaches and journalists can be viewed as a positive: they are designed to improve accuracy and fairness.
Wednesday, December 8, 2010
Location: New York County Lawyers Association Building, 14 Vesey Street, New York, New York
Confirmed Speakers: Kurt Emhoff, Esq., attorney, Kasowitz, Benson, Torres & Friedman and licensed boxing manager, and Paul Haberman, Esq., licensed boxing manager and Chair, Entertainment, Media, Intellectual Property and Sports Law Committee's (EMIPS) Sports Law Subcommittee. More speakers to come from both sides of the debate, stay tuned!
Panelists will discuss the legal and regulatory issues relating to the legalization of mixed martial arts in New York, as well as its potential economic impact if it were legalized.
Sponsor: EMIPS Committee of the New York County Lawyers Association
First, as we know from the case Clarett v. Nat'l Football League, some courts have found that sports leagues' age requirements are immune to antitrust challenge as long as they are collectively bargained with the union. Thus, if the NBPA no longer consents to an age requirement, it will become easier for a prospective NBA player to challenge the age requirement under Section 1 of the Sherman Act. (For more on this point, see Michael McCann's article on the legality of age restrictions in the NBA and NFL, and my article on the same general point under both U.S. and EU law).
Second, as I have suggested in a forthcoming law review article, sports unions that agree to an age requirement may face some risk of a lawsuit under labor law's duty of fair representation. By seeking to remove this age requirement, the NBPA reduces their risk.
Finally, the NBPA's change of position on an age requirement signals it may play hardball in the upcoming round of labor negotiations with the league.
Sunday, December 5, 2010
Is another food wager in the offing? May I propose stone crabs and key lime pie as the food of South Florida.
Thursday, December 2, 2010
Wednesday, December 1, 2010
Come on, now. The NCAA is no slouch when it comes to enforcing its endless set of hypocritical regulations. But it simply found no evidence that either Cam Newton or anyone at Auburn knew anything about the alleged scheme or did anything wrong.
We still know precious little about what went down here. Supposedly, a pastor at a poor church in disrepair through a former player at Mississippi State offered to steer his son to that program in exchange for $180,000. The school didn’t bite. The son enrolled at Auburn, which was never asked to contribute to the ailing church, and he became the leading candidate for the Heisman while leading the team to the BCS Championship Game where he will earn Auburn millions of dollars. Now that’s a story.
I still say the NCAA did the right thing here. Amazingly. But why? Was it to follow the wisdom of Ezekiel—and me—about not punishing the child for the sins of the father? Or was it to protect the product which at this late date needs Auburn and the best player in the country in its showcase title game? Maybe Wojciechowski knows.
Monday, November 29, 2010
At the Adjunct Professor Blog, Mitchell Rubenstein (St. John's) rebukes the Marquette School of Law for retaining MLB Commissioner Selig as an Adjunct Professor. The Marquette press release is here. Prof. Rubenstein writes:
I think this is a total disgrace to law professors and am disappointed in Marquette Law School. No doubt Mr. Selig is an accomplished professional and no doubt that he can be an asset to any school by an occasional lecture about some of his experiences. But it is quite another thing to teach a class to students learning to be lawyers and to evaluate students, i.e., grade them. Law school is not business school and I am sorry to say that this appears to be a publicity stunt by Marquette Law School.The position of an adjunct professor is certainly the most precarious at most law schools (other than that of the dean), so some angst at this hire is understandable. Adjunct professors -- practicing lawyers, typically, who join the faculty to teach one class (or two) -- serve at the pleasure of the Associate Dean for Academic Affairs, without the security of tenure or a long-term contract. They are relatively poorly compensated (rarely, I would guess, earning their hourly billing rate for time spent), yet engage in heavy-lifting activities like writing exams and grading student papers. Yet because they also have full time jobs in practice, they miss out on many of the speakers, workshops, and other activities that add to the joy of law teaching. To the extent that Prof. Rubenstein's blog speaks for adjuncts, his chagrin at any reduction in the qualifications for such teachers is possible to understand.
Yet the degree of criticism here seems extreme. First, to the extent that the critique is based on Selig's lack of qualification to grade students, it seems that he will be co-teaching a class with full-time Professor Matt Mitten. My guess is that Prof. Mitten, certainly qualified to do so, will be doing most (if not all) of the actual grading in the course.
Prof. Rubenstein also objects to a non-lawyer teaching legal classes. My personal view on this is that diversity in instruction is beneficial to all kinds of students, including law students. While bar exam courses should probably be taught only by faculty with legal experience and education, upper level electives like Sports Law may give students a better educational experience if those with real industry experience are involved. Selig has supervised labor negotiations, imposed discipline under a CBA, and no doubt hired hundreds of thousands of dollars worth of legal services. Would there be any objection to an accountant teaching a class on accounting to JD students? Or an M.D. teaching a class on medicine for lawyers? In my view students can learn a lot from someone who has hired lawyers.
Saturday, November 27, 2010
For perhaps the most gifted quarterback to come out of the NFL farm system in a decade, both of these principles mean that success breeds a flurry of rumor mongerers, two-bit accusers looking for their five minutes of fame, and former coaches with axes to grind all intent on bringing down the latest star in the mythically pristine world of college athletics. And one other unlikely culprit: the vaunted New York Times.
It was the Times that first published the attack piece on Maurice Clarett in the off season after Clarett helped Ohio State win the National Championship. It was this article that snowballed into the NCAA investigation, culminating in Clarett’s suspension from Buckeyes football, his need to try to enter the NFL early, and his ultimate downfall. In that article, the Times was outraged that freshman Clarett was allowed to retake a midterm when his African American history professor insisted that he do more than skate through classes without learning the material.
Six months ago, the Times wrote no less than three major articles exploring whether Kentucky basketballer and first round draft pick Eric Bledsoe had really deserved a good grade in his Birmingham, Alabama high school Algebra II class. This article also prompted an NCAA investigation as well as one conducted and paid for by the Birmingham School Board, both of which cleared Bledsoe of any shenanigans.
Now the New York Times claims “credit,” along with ESPN, for “breaking” the Cam Newton story in which, so far, no one has proven anything resembling the alleged impropriety had actually happened. Indeed, the Times has already been taken to task for reporting that one of the key whistleblowers in the case had talked to one of the accused principals when at least one of the parties now denies that took place.
I don’t know what happened to cause Newton, Cam not Isaac, to attend Auburn as opposed to Mississippi State. I do know the story reported by the Times makes no logical sense though I recognize people sometimes act illogically against their best interests. Mainly, I am troubled by an institution like the New York Times spending its resources and energy in trying to out college athletes, kids really, toiling in a system we all know to be the pinnacle of hypocrisy.
Friday, November 26, 2010
Auburn, the number two team in the land and, Cameron Newton, its Heisman leading quarterback are, as most of you know, the subjects of investigations both within and outside the NCAA. Cameron Newton’s father, a pastor at Newton, Georgia’s The Holy Zion Center of Deliverance, is accused of possibly conspiring with a former Mississippi State football player to solicit a $180,000 payoff in exchange for delivering his son unto the Mississippi State football program. Pastor Newton, whose congregation supposedly was in desperate need of funds to refurbish its time-worn church, denies the charges as does a former football player. No one suggests either Auburn or Cam Newton knew anything about these alleged acts, even if they prove to be true.
Current NCAA Commandments hold such conduct to be mortal sins justifying excommunication or worse for everyone involved.
The question is an old one: should the sins of the father be held against the son. The bible itself is split on the issue. Exodus 20:5 speaks of “a jealous God, punishing the children for sin of the fathers . . .” Three books later, at Deuteronomy 24:16, we learn: “Fathers shall not be put to death for their children, nor children for their fathers.”
What shall it be then? Even if the allegations prove true, and those who know Pastor Newton say he is a good man who would never participate in such unholy activities, do we punish the gifted son, if he was indeed an innocent, for the acts of the wayward dad? I think not. We should listen to the Prophet Ezekiel at 18:20: “The son will not bear the punishment for the father’s iniquity.”
Wednesday, November 24, 2010
The team has done research on the various crude and offensive James T-shirts in circulation locally, and officials will be stationed at entrances to make sure no fans enter with such shirts or signs that disrespect James or his family members. They'll also be in the stands, authorized to take away inappropriate apparel. Fans who have such shirts will be required to remove them and then will be given a Cavaliers-branded T-shirt to wear instead. All inappropriate signs also will be confiscated and officials will be on the lookout throughout the game for inebriated fans or fans who are preparing to throw things onto the court."We don't want to create a police state," said Tad Carper, the Cavaliers' senior vice president of communications. "We've always had a real energetic, super-charged home crowd and we want to encourage that for every game, including Dec. 2. We want people to enjoy themselves and express themselves, but we don't want fans to cross the boundaries of decency. We're not going to allow profanity and things like that. We'll have no tolerance for anyone trying to cross those boundaries."
Note the imprecision in this all--is it about profanity and decency or is it about disrespect (and what constitutes disrespect for James and his family? What makes something "inappropriate"? Why shouldn't fans have some leeway to harshly criticize a person they see as a traitor to the city? I am not sure who owns/operates the Cavs' arena, so this may be a moot point as far as the First Amendment is concerned. But I will be interested in hearing how this plays out.
Sunday, November 21, 2010
Her latest morality play comes from Connecticut high school football. The coach at Southington High got hold of the opposing team's coded play list, which had fallen off a player's armband during first half. The coach used the play list (how many times seems to be in dispute) during the second half to alert his players to what the opposing team was going to run. Southington won 28-14 (the game had been tied at the half). The coach is D.J. Hernandez, a former UConn captain and the brother of Aaron, who plays tight end for the New England Patriots. Hernandez was suspended for one game. The Connecticut Interscholastic Athletic Conference is reviewing the case. Roberts insists that a forfeit is required. And she takes a parting shot at one CIAC member, who is quoted as saying "It's what we call ethics between coaches and good sportsmanship; I don't believe it's cheating per se."
But did Hernandez cheat? First, I am not sure how much of a role it really plays. Teams often know what the other team is going to run or what their plays are--sometimes through good scouting and game preparation, sometimes because of movement between coaching staffs. Recall the Bucs players claims that they knew exactly what the Raiders were going to run during Super Bowl XXXVII--Tampa coach Jon Gruden previously had coached the Raiders. And, of course, "stealing signs" is part of baseball. This is not precisely the same, obviously. But the "advantage" Hernandez's team gained (knowing what plays were being called) is one that often is sought and gained within the rules of the game.
Cheating to me implies breaking rules. In the absence of a prohibition on using the other team's found play list, this does not seem like cheating. Yes, it is bad sportsmanship and probably unethical--not the kind of behavior we would like coaches to engage in. Roberts compares this to NBA players flopping on charges, or Derek Jeter pretending to be hit by a pitch, or Reggie Bush pushing Matt Leinert across the goal line--all of which Roberts sees as examples of society's (and sport's) moral decline. Actually, I find what Hernandez did worse than any of these, as a matter of sportsmanship. Not sure why--maybe because players cannot get away with any of that if the officials are doing a decent job of calling games in the moment. Hernandez was not going to be caught at this by an official on the ground. So, Roberts is right that we should hope for better from coaches, especially at the high school level. And we could have fun with this question in a game of Scruples. On the other hand, this is far from the greatest ethical/sportsmanship breach in history.
But Roberts wants Southington to forfeit its win, a punishment that seems excessive, because it suggests a level of wrongdoing that, absent a clear prohibition on the conduct at issue, is not present here.
Friday, November 19, 2010
Thursday, November 18, 2010
This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.Hope you have a chance to check it out. For another take on this topic, be sure to read Nathaniel Grow's excellent forthcoming article in the Harvard Journal of Sports and Entertainment Law titled "Antitrust and the Bowl Championship Series."
Wednesday, November 17, 2010
A trust that prohibits the beneficiary's interest from being assigned and also prevents a creditor from attaching that interest.
McAleavey has a multi-pronged argument supporting her position. I recommend reading her work, especially Section III of the article, which is novel and clever. I plan on citing her article moving forward.
There is a lot of academic research on the topic of minimum age rules in sports (links to several such articles here). The issue will be one of several hot-button topics negotiated by the NBA and NBPA in their upcoming collective bargaining sessions.
For micro-updates on the legality and efficacy of age eligibility rules in sports over the course of the next few months as I work on several papers in this research line, feel free to follow me on Twitter at (@sportslawprof). I am presenting a quantitative analysis of the WTA age rule at the Southern Economic Association conference this weekend in Atlanta and look forward to feedback and constructive criticism as the paper is vetted.
Saturday, November 13, 2010
In a wide-ranging interview last week, recently retired tennis pro Christophe Rochus made a number of statements about doping. Such commentary is nothing new. Athletes and others affiliated with sports often make vague, generalized statements about doping without implicating anyone specific. In rare cases, athletes such as Jose Canseco and Floyd Landis actually name names. In an op-ed that was published in the Los Angeles Times, Michael Shermer explains the "game theory" reasons for such specificity.
Rochus's allegation falls somewhere in between the two extremes. In relevant part below, here is what Rochus said:
"I remember a match against a guy whose name I will not say. I won the first set 6-1, very easily. He went to the bathroom and came back metamorphisised. He led 5-3 in the second set and when I came back to 5-5...his nose began bleeding. I told myself it was all very strange."
Rochus makes a point of not naming names, but his insinuation is detailed enough to allow one to attempt to "reverse engineer" his statement and pinpoint specific matches (and opponents) that meet his parameters. Interestingly, Rochus doesn't state whether he eventually won or lost the match in question. In addition, he doesn't state whether the match was two, three, four, or five sets long (Grand Slam tournaments and Davis Cup matches use a "best of five" format while all other pro-level tournaments use a "best of three" format). Nevertheless, a perusal of his playing record from 1993 to 2010 reveals 11 matches that possibly match his description. Of the 11 matches, he won seven and lost four. All four losses took place in the past three years. However, publicly-available online match records do not include details on the sequence of individual games within each set, making it impossible to pinpoint the match(es) in which Rochus was trailing 3-5 in the second set before recoving to 5-5. As such, this attempt at reverse engineering Rochus's statement failed to result in anything definitive. However, with tennis and a majority of other sports spending a lot of resources on their anti-doping efforts, such methodology could be helpful the next time someone makes a "partial" allegation pertaining to drug use and doping authorities proceed to conduct a due diligence follow-up in an attempt to find some actual evidence in support of the claim.
Friday, November 12, 2010
In another chapter in MLB’s simmering baseball kickback scandal, a Federal grand jury has indicted a former Chicago White Sox executive and two team scouts on charges that they took kickbacks totaling approximately $400,000 from signing bonuses and contract buyouts paid to secure 23 prospective players between December 2004 and February 2008. A seven-count indictment returned at the United States District Court in Chicago alleges that the White Sox baseball team was defrauded of money, as well as the honest services of the Defendants, who allegedly concealed the kickbacks from the team and its more senior officials.
This scandal first became public after White Sox executive David Wilder was discovered returning from the Dominican Republic in March 2008 with $40,000 in cash.
The facts, according to the indictment:
David Wilder was the White Sox farm system director from 2003 to 2006 and Director of Player Personnel until May 2008. He was responsible for overseeing the Sox scouts in Latin America, including Co-Defendants Jorge Oquendo Rivera and Victor Mateo. Rivera served as Latin American Scout and was directly responsible for overseeing Mateo.
The White Sox authorized scouts to conduct preliminary negotiations, and Wilder was authorized to permit a player’s signing if the payment was under $100,000. If it was more, he obtained authorization from the White Sox GM Kenny Williams. After the signings, MLB conducted background checks, a written contract was sent, and checks were drawn from the White Sox’s bank in Chicago. Checks were paid to the player (if Dominican) or to a Mexican team if the signing involved a contract purchase.
The Defendants’ written contracts with the team required them to serve “diligently and faithfully” and to provide services with “diligence and fidelity.” The White Sox relied on Defendants to recommend/approve recommendation of signings that were (i) commensurate with the player’s skill level; (ii) in an amount that was no greater than necessary to induce a player to sign with the team or to induce a Mexican team to release the player; and (iii) not artificially inflated by inclusion of kickback payments.
The Defendants allegedly misrepresented the amount necessary to sign certain players and omitted material information about the payments which caused the White Sox to pay artificially inflated signing bonuses and artificially inflated prices for players’ contract rights. Rivera and Mateo allegedly scouted players that they knew they could secure kickbacks from, and Rivera sought players already affiliated with Mexican teams. Rivera and Mateo directly and indirectly informed Wilder as to whether kickbacks could be obtained.
This indictment could be part of a much more expansive scheme of fraud with regard to MLB scouts in Latin America. Statistics provided by MLB show that signing bonuses of Latino players have gone up drastically in the last decade. The average signing bonus was approximately $29,000 in 2004, but had risen over $100,000 by 2008. ESPN’s Outside the Lines conducted a report in September of 2008 that described a “lawlessness” to baseball in the Dominican Republic. MLB claimed in the report that it was unaware of the problem of skimming.
The “White Sox Three” may be the first to be charged, but there are others, even bigger fish, that could face similar charges.
Jim Bowden, erstwhile GM of the Washington Nationals, stepped down in March 2009 amidst baseball’s investigation of his alleged skimming activity going as far back as his days as Reds GM in 1994. Bowden has denied any involvement. In August of 2008, the Yankees fired Carlos Rios, their director of Latin American scouting, and Ramon Valdivia, their Dominican Republic scouting director, for their alleged involvement in a kickback scheme. This came after the Boston Red Sox fired one of their own Dominican scouts, Pablo Lantigua, as a result of his alleged acceptance of a gift from a talent hunter, or a “buscone” who represented a Sox prospect that the team had signed. As this article details, the problem is not just a matter of MLB supervision, but also the fact that the system of buscones in the Dominican in deeply ingrained and is tied to the country’s crushing poverty.
Worth noting is the fact that the White Sox scandal was the first to break back in May 2008. It will be interesting to see whether this initial indictment is a prelude to further charges in Boston, New York or D.C.
At a time when MLB is still dealing with the lingering effects of the steroid era, this scandal is certainly unwelcome, but far from reaching a crisis level. The MLB-initiated investigation, carried out by the FBI and culminating in this week’s charges, demonstrates the League’s commitment to rooting out this problem. While the situation in the Dominican likely won’t change any time soon, the League and team officials can keep this type of scandal from escalating by more vigilantly monitoring how their scouts interact with players and player representatives.
The scandal has further elicited discussion about subjecting international players to MLB’s June draft for U.S. and Canadian players. Under the current system, the only restriction on a team’s acquisition of international players is that they be signed after their seventeenth birthday. But as Rick Karcher point out in this space a short while back, implementation of a draft would have to be collectively bargained and even then, the effect it could have on the entire player acquisition process is unclear.
Hat tip to law clerks, Luke LeSaffre and Brian Konkel, for their excellent work on this piece.
Update 11/20/10: White Sox scout, Rivera, entered a not guilty plea at his arraignment yesterday. His Co-Defendants, Wilder and Mateo, will be arraigned next month.