Sunday, May 30, 2010

Clip, Clip, Baby!

The intersection between Sports and Bioethics has grown geometrically since I argued on behalf of Eddy Curry that the Chicago Bulls had no right to insist on a DNA test as a condition of his employment. ESPN the Magazine recently devoted almost an entire issue to how genetic research might be changing the future of sports. Now Summer Johnson in reports on the rather uncomfortable link between March Madness and vasectomies. Apparently, there is a high incidence of men choosing to have this elective surgery during tournament time. What better excuse to sit for twelve hours on the couch than a doctor’s orders to rest with a cold compress between your legs. Indeed, as Summer notes, some doctors at The Oregon Urology Clinic market the procedure with Dick Vitale advising prospective patients to "take care of the equipment and lower your seed for the tourney.” Ouch.

Next year, the NCAA plans to expand the tournament to 68 teams, maybe even to 96, adding perhaps another weekend to the event. We thought originally the motivation was money since that seems to be the driving force behind many of the decisions of the Tsars of amateur athletics. Now we know it’s zero population growth.

Cooperstown Symposium on Baseball and American Culture

The 2010 Cooperstown Symposium on Baseball and American Culture will be held next week, June 2-4, at the National Baseball Hall of Fame in Cooperstown, for those of you who find yourselves in upstate New York. The program is here. I presented here a few years ago and may try to do it again next spring (maybe more on the judge/umpire thing); it is a great time. Because everyone speaks the common language of baseball, the conference is truly multi-disciplined; we all are able to talk to one another. Plus, the last night includes a barbecue and a game of town ball (an early predecessor of what we know as baseball).

Baseball and Law in Chicago

That was a great couple days in Chicago for the Law and Society Association Annual Meeting. I wish I could have stayed an extra day or two, but family calls. Otherwise, I was able to run along the lake, eat Chicago-style pizza, and spend an almost-perfect afternoon at the Place Where God Intended Baseball To Be Played (even if the Cubs lost because, well, they suck).

Our roundtable, Judges as Umpires, Umpires as Judges: Rethinking the Metaphor, went very well. We had a very good audience (particularly considering it was at 8:15 a.m. the first day of the conference) and a good conversation about sports, the nature of rules, and the nature of judging and adjudication. 
I hope we might publish an edited/annotated transcript of the conversation.

But I do need a judge's ruling on this one. At the game on Friday, I saw a number of t-shirts reading "[Opposing Latino player] does my lawn," with an outline of a person in a straw hat pushing a lawnmower. So, for example, I saw a shirt in Cardinals colors that said "Zambrano does my lawn" and one in Cubs colors that said "Ozzie Guillen does my lawn." Is there any way of understanding those shirts that is not obnoxious and insensitive, if not outright offensive?

New Sports Illustrated Column on NFL Network and Cable Industry

I had the Viewpoint Column on a few days ago, and my piece centered on the consumer and antitrust implications of the legal and business battles between the NFL and major cable companies. Here's an excerpt:

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Some of these fans can still watch those contests because every NFL Network game that sells out -- and all 32 previous ones were sold out -- is simultaneously broadcast on free, over-the-air TV in the primary market of the home and away teams. But those fans who live in non-primary markets (generally defined as those living outside a 75-mile radius of the team's stadium) are out of luck. Their only option, should it be available to them, would be to switch from a cable provider to a satellite provider that offers NFLN. For a variety of reasons, possibly including convenience, cost and reliability, those fans may prefer to keep their cable provider.

There are about 56.3 million households with NFLN, a significant but underwhelming number when considering that the two-year-old MLB Network already has 55.3 million households, while the three-year old NHL Network, which offers coverage of a considerably less popular league than the NFL, has approximately 34 million. The NFL, of course, would like more homes to have its channel, which the league spent in excess of $100 million developing. But the league has encountered difficulties in convincing cable companies to include NFLN in its channel packages, particularly basic packages. The major holdup has been over price.

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The NFL can offer several responses to those lines of critique. For one, games aired on NFLN are broadcast nationally and thus have a wider viewership than regionally-televised games aired on free, over-the-air networks. The NFL can also highlight that while games aired on NFLN require payment to a cable or satellite provider, they are simultaneously broadcast on free, over-the-air networks (provided the games are sold out) in the home and away teams' primary media markets.

Thursday, May 27, 2010

New Sports Illustrated Column on Implications of Floyd Landis' Allegations against Lance Armstrong

I have a new column on on the potential legal impact of allegations by Floyd Landis that Lance Armstrong engaged in doping and possibly encouraged and facilitated other riders to dope. Here's an excerpt:

Why would law enforcement authorities listen to someone of questionable character like Landis?

For one, Landis would be breaking the law by knowingly lying to federal government officials.

Second, sometimes persons with checkered pasts and suspicious motivations are telling the truth and sometimes they are the only persons willing to tell the truth. Just recall when Jose Canseco was widely ridiculed for claims in his book, Juiced Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, that Mark McGwire, Jason Giambi and other players used steroids. While Canseco's colorful past and financial motivations for book sales gave legitimate reason to question the accusations, he appears to have been telling the truth. Perhaps if he had been taken more seriously earlier in time, the steroid scandal could have been addressed more effectively.

In addition, it is the job of law enforcement and other investigatory officials, including special agent Jeff Novitzky, to assess the credibility of Landis and how well his claims would withstand courtroom scrutiny. Clearly, if Landis is the central accuser of Armstrong, Armstrong could attack Landis on multiple grounds. But should the government conclude that Armstrong broke the law, it will try to find additional sources of evidence and testimony that support Landis's claims but lack his vulnerabilities.

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What is the legal significance of USPS sponsoring Armstrong's team?

In all likelihood, the sponsorship by USPS, an independent agency within the Executive Branch of the federal government, will not impact the legal duties of Armstrong or the team. Sponsorship of a racing team probably does not convert the team into an entity that acts on behalf of the government, nor is it likely to turn decision-makers of the team into government agents. Therefore, even though Armstrong was a part-owner and principal decision-maker for Tailwind Sports, which managed the USPS team and received the sponsorship money, his main legal concerns probably center on accusations of illegal distribution.

It is worth noting, however, the possibility that Armstrong's treatment of USPS sponsorship money could bring legal scrutiny, particularly under the federal statute for the misuse of public funds and embezzlement, 18 U.S.C. §§ 648. The statute prohibits custodians of public funds from misusing those funds and carries up to a 10-year prison sentence. The fact that USPS does not draw from taxpayer funds may not help Armstrong, since the statute does not distinguish taxpayer public funds from non-taxpayer public funds.

Still, whether Armstrong's individual control of the funds would be sufficient to trigger scrutiny, and whether promotional public funds fall within the purview of the statute are complicating factors. At this stage, therefore, it seems unlikely that the USPS sponsorship will impact the legal analysis.

To read the rest, click here. For an excellent commentary by Alan Milstein on Landis' allegations, see On Floyd Landis: What Makes Sports and Sports Law Interesting.

Wednesday, May 26, 2010

Law and Society: Judges as Umpires, Umpires as Judges

For those of you attending Law and Society this weekend: On Thursday morning at 8:15, I will be doing a roundtable discussion called Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. We will explore the silly judge-as-umpire metaphor, instant replay, the nature of judging and sports officiating, and other links between judging and sports. The panel includes moderator Mark Graber (Maryland), Mitchell Berman (Texas), Chad Oldfather (Marquette), Aaron Zelinksy (recent Yale grad and occasional guest blogger here), and me.

It should be a great discussion and I hope any early-risers will stop by. I hope to post the audio here next week.

Plus, don't forget Happy Hour on Thursday evening. And on Friday afternoon I can be found at Wrigley Field for the first time since 2001--far too long.

Monday, May 24, 2010

Sports Illustrated column on American Needle v. NFL decision

I have an column on today's big decision. Here's an excerpt:

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The NFL's argument encountered significant resistance during oral arguments on Jan. 13. Neither the conservative nor liberal justices seemed to buy the NFL's reasoning, which was inconsistent with precedent and also of questionable logic.

Bear in mind, NFL teams do not necessarily collaborate on licensing contracts; in fact, prior to 1963, they entered into their own licensing contracts. They have also sued each other over this very issue. During the 1990s, Dallas Cowboys merchandise sales far eclipsed those of other teams. Cowboys owner Jerry Jones, however, had to equally share that revenue with every other team owner. In 1995, Jones brought a lawsuit against his fellow owners seeking independence to enter into his own licensing contracts. In response, those owners countersued him. While they would eventually reach a settlement, Jones and other NFL owners certainly did not seem like a single entity at that time.

. . . the decision sends a message to similar professional sports leagues, namely the NBA and NHL, that their own aspirations for single entity recognition are just as unlikely to materialize -- at least through the legal system. Indeed, if leagues would like to avoid Section 1 scrutiny, they can still turn to Congress for Section 1 exemptions. They have a track record there of some success: the leagues persuaded Congress and President Kennedy in 1961 to receive a Section 1 exemption for their national TV contracts. Perhaps they can make their case in Congress for other types of Section 1 exemptions, but it's a case that won't go through the Supreme Court.

More on the Supreme Court's Ruling in American Needle v. NFL

As Nathaniel Grow just posted, the Supreme Court ruled today 9-0 to overturn the Seventh Circuit’s ruling in American Needle v. Nat’l Football League, which had held that the single-entity status of a sports league should be viewed "one league at a time" and "one facet at a time."

In a concise, 23-page opinion (PDF), the Court explained that the NFL is not a single entity because “the NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action.”

This reasoning is similar to that advanced by Michael McCann, Gabe Feldman and myself in recent law review articles (see here, here, and here).

The court further stated that "[i]f the fact that potential competitors shared profits or losses from a venture meant the venture was immune from [Section 1 of the Sherman Act], then any cartel could avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing product."

I have posted a full discussion of this ruling and its implications on Above the Law, here.

As far as the case's likely outcome upon remand, I note:

[W]hether American Needle will ultimately prevail on the merits remains far from settled. As Rutgers School of Law-Camden professor Michael Carrier noted in a recent law review article, defendants have won 221 of the past 222 cases that have involved a court’s final determination under the Rule of Reason (link to Professor Carrier’s article)

In addition, even if the NFL clubs’ licensing practices have led to some anti-competitive effects, league-wide trademark licensing might also produce some pro-competitive benefits by reducing the transaction costs of obtaining licenses to use all club logos on a single piece of merchandise (link to my law review article).

Breaking News: Supreme Court Unanimously Reverses 7th Circuit in American Needle

The United States Supreme Court released a unanimous opinion this morning reversing the Seventh Circuit's decision in American Needle v. NFL. The opinion is available here.

Saturday, May 22, 2010

On Floyd Landis: What Makes Sports and Sports Law Interesting

What makes Sports and Sports Law so interesting is how its controversies frequently serve as a microscope into the human condition. Take the case of Floyd Landis. The cyclist from Amish country in Pennsylvania’s version of the Bible belt had won the 2006 Tour de France, returned as a small town hero, and then was stripped of his title after accusations of doping. Offering his roots as the best evidence of his integrity, Landis spent hundreds of thousands of dollars contesting the accusations, accusing the French officials of anti-American bias: “All day long I heard him shout so loud, crying out that he was framed.”

Now he admits everything, and accuses everyone else in the sport of doing the same.

I almost always get fooled by these folks. Whether it’s Mark McGuire on Sixty Minutes or Bill Clinton pointing his finger denying he had sex with “that woman,” or Colin Powell showing us where the WMDs are hidden, or Justice Clarence Thomas claiming Anita Hill’s accusations were a “high tech lynching.” I just can’t imagine how someone has the chutzpah to look millions straight in the eye and flat out lie. (Larry Craig I never believed.) What kind of skill does it take to be so convincing when inside they must know they will eventually be hoisted by their proverbial own petards? And when will I learn that human beings are so talented at being deceitful?

Thursday, May 20, 2010

New Sports Illustrated Column on Implications of Dr. Anthony Galea Prosecution

I have a new column on the charging in both U.S. and Canadian courts of Dr. Anthony Galea, a Canadian doctor who is alleged to have provided illegal performance-enhancing drugs to many star athletes in the U.S. Here is an excerpt:

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In a way, though, Galea isn't the only person on trial. Athletes who have received treatment by Galea have reason to worry that their names will be publicly revealed. Implication in the case could prove disastrous. For one, it could trigger sanction by athletes' teams and leagues in the form of suspensions or fines. Companies with which athletes have lucrative marketing and endorsement deals could also void or suspend contracts based on those contracts' morals clauses.

Most concerning, implicated athletes could themselves be criminally charged with purchasing and using illegal drugs. Granted, such athletes might be able to minimize their exposure to criminal sanction through proffer agreements, which, if offered by prosecutors, would essentially entail the athletes telling the authorities what they know about Galea in exchange for not being prosecuted. Such agreements, however, would not protect those athletes from punishments by leagues and endorsed companies.

* * *

Athletes could also be exposed in the event that Galea enters into a plea deal with prosecutors. Such a deal would be more likely if the evidence against him proves overwhelming and airtight. Of additional concern to athletes, a high-profile case of this kind is susceptible to leaks. While prosecutors have a duty to keep protected information confidential, leaks have a way of happening.

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