Saturday, October 30, 2010
Thursday, October 28, 2010
Agnew started at defensive back for the Owls as a freshman in 2006, before seeing reduced playing time as a sophomore due to shoulder and ankle injuries. Rice then elected not to renew his scholarship for either his junior or senior years. Agnew asserts that but for the NCAA rules, he would have received multi-year scholarship offers when he was recruited out of high school. The suit seeks to represent a class of athletes who, like Agnew, had their one-year scholarships reduced or non-renewed. In its defense, the NCAA immediately noted that one-year renewable scholarships are the norm in higher education not only for athletic scholarships, but also talent-based and academic scholarships in general.
Agnew's lawsuit comes on the heels of news this summer that the United States Justice Department was itself investigating potential antitrust concerns arising from the NCAA's prohibition of multi-year scholarships (previously discussed by Michael McCann here and here). Moreover, as ESPN.com notes, although courts have historically granted the NCAA some leniency when it comes to rules deemed necessary to preserve amateurism, the NCAA settled a case in 2008 brought by former student-athletes alleging that NCAA rules prohibiting colleges from offering to cover the full cost of attendance violated antitrust law.
One interesting tidbit reported by the New York Times is that Agnew is being represented by Steve Berman of the Hagens Berman Sobol Shapiro firm. Berman's firm also represents former Nebraska and Arizona State quarterback Sam Keller in his class action lawsuit against the NCAA and E.A. Sports, alleging that the two entities illegally use college athletes’ likenesses without their permission in video games.
It now appears that the sides have reached an amicable resolution to their dispute. According to reports, the WAC will announce today that it has reached an agreement with Fresno State and Nevada, under which the two schools will wait until the summer of 2012 to join the Mountain West Conference. In exchange, the WAC has reportedly agreed to accept reduced exit fees from the schools upon their departure, lowering the $5 million exit fee down to around $2 million per school.
Saturday, October 23, 2010
Thursday, October 21, 2010
Saturday, October 16, 2010
One interesting tidbit: Luchs mentions that prior to 1999, the NFLPA had a rule that required a player who had taken money from an agent to repay that money; the rule was changed in 1999. Thus, Luchs says, agents formerly had "the threat of litigation" as an additional incentive for a player to retain that agent for the rookie contract; after 1999, that incentive was gone, making it more likely that an agent might pay college players and have nothing to show for it.
Here is my question (assuming Fuchs' version is accurate): On what legal theory was the agent able to sue that player? There is no contract, so it can't be breach of contract. Plus, any contract would seem to be void as against public policy (of not paying amateur athletes). Maybe unjust enrichment--the players have received (and retained) something to which they are not entitled? But does some idea of unclean hands kick in--the agent is claiming that the player was unjustly enriched by money the agent unlawfully gave him? Is the claim for a breach of NFLPA rules, made enforceable in court?
Does anyone know the details of this old regime? And does anyone know why the NFLPA changed the rule?
Friday, October 15, 2010
The prospect of Hicks and Gillett pursuing a successful litigation strategy against RBS and NESV in Great Britain is dim. The London High Court unequivocally found nothing wrong in the RBS-NESV sale and in fact admonished Hicks and Gillett to accept it. While Hicks and Gillett profess a desire to return to the British courts, and while they might obtain new evidence that more favorably portrays their legal arguments, they would still have to overcome two adverse decisions from the London High Court. The odds would be stacked against them.
Thursday, October 14, 2010
Wednesday, October 13, 2010
Erin Abbey-Pinegar, Note, The need for a global amateurism standard: international student athlete issues and controversies, 17 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 341 (2010)
Constantine J. Avgiris, Comment, Huddle up: surveying the playing field on the single entity status of the National Football League in anticipation of American Needle v. NFL, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 529 (2010)
Jillian Bluestone, Comment, La Russa's loophole: trademark infringement lawsuits and social networks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 573-604 (2010).
Erin E. Buzuvis, Sidelined: Title IX retaliation cases and women’s leadership in college athletics, 17 DUKE JOURNAL GENDER LAW & POLICY 1 (2010)
Anthony Cabot, The absence of a comprehensive federal policy toward Internet and sports wagering and a proposal for change, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 271 (2010)
Antonia Cowan, You can't get there from here: IGRA needs reinvention into a relevant statute for a mature industry, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 309 (2010)
Bill Cross, Note, The NCAA as publicity enemy number one, 58 UNIVERSITY OF KANSAS LAW REVIEW 1221 (2010)
andré douglas pond cummings and Seth E. Harper, Wide right: why the NCAA’s policy on the American Indian mascot issue misses the mark, 9 UNIVERSITY MARYLAND LAW JOURNAL OF RACE, RELIGION, GENDER & CLASS 135 (2009)
Ross E. Davies, The judicial and ancient game: James Wilson, John Marshall Harlan, and the beginnings of golf at the Supreme Court, 35 JOURNAL OF SUPREME COURT HISTORY 122 (2010)
Matthew Hard, Note, Caught in the net: athlete’s rights and the World Anti-Doping Agency, 19 SOUTHERN CALIFORNIA INTERDISCIPLINARY LAW JOURNAL 533 (2010)
Victoria Hayes, Note, Human trafficking for sexual exploitation at world sporting events, 85 CHICAGO-KENT LAW REVIEW 1105 (2010)
Daniel Hauptman, Comment, The need for a worldwide draft to level the playing field and strike out the national origin discrimination in Major League Baseball, 30 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 263 (2009-2010)
Joseph M. Kelly U.S. land-based and Internet gambling; would you bet on a rosy future?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 339 (2010)
Bennett Liebman, The Supreme Court and exclusions by racetracks, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 421 (2010)
Jamie Y. Nomura, Note, Refereeing the recruiting game: applying contract law to make the intercollegiate recruitment process fair, 32 UNIVERSITY OF HAWAI`I LAW REVIEW 275 (2009)
I. Nelson Rose, Gambling and the law®: the third wave of legal gambling, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 361 (2010)
Jason Richard Sheppard, Note, The thrill of victory, and the agony of the tweet: online social media, the non-copyrightability of events, and how to avoid a looming crisis by changing norms, 17 JOURNAL OF INTELLECTUAL PROPERTY LAW 445 (2010)
William N. Thompson, Gambling taxes: the philosophy, the Constitution and horizontal equity, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 389 (2010)
Sarah J. Wild, Comment, On equal footing: does accommodating athletes with disabilities destroy the competitive playing field or level it?, 37 PEPPERDINE LAW REVIEW 1347 (2010)
Tuesday, October 12, 2010
I want to push on the following point, where Rovell says: "But you don’t have evidence of adultery and no crime was committed." This, Rovell argues, distinguishes Favre from Kobe Bryant (charged with a crime) and Tiger Woods ("adultery to the hilt," in Rovell's words).
First, by dismissing what Favre allegedly did as "no crime," he overlooks the seriousness of these actions. Assuming Jenn Sterger was unwilling, this is flat-out sexual harassment. Which, while not criminal, is unlawful conduct and a breach of serious federal civil rights rules. Rovell makes the same mistake that I argue David Stern made in the wake of the Isaiah Thomas sexual-harassment verdict--simply writing-off all non-criminal misconduct as not serious and not worthy of league (or sponsor) action. But some social rules are enforced through criminal law and some through civil law; the use of the latter does not necessarily make that rule less important or the breach of that rule less problematic. In fact, I would argue that a player sexually harassing a team employee is more of a problem, and reflects worse on Favre, than getting into a bar fight or being drunk in public (both of which are crimes).
Second, let's be clear about the allegations against Favre. He allegedly propositioned a woman, begged her multiple times to come to his hotel room, and sent her (presumably unwanted) photos of his genitals. And it sounds like the only reason he did not have sex with Sterger is because Sterger was unwilling. I have to say, while technically not adultery, I probably would not still be married if I did that. And I doubt my wife would accept "oh, but there's no evidence of adultery" as an excuse. Rovell draws a line between adultery (Woods) and this non-adultery. But completing the act of cheating on your spouse is not dramatically worse (from a moral or "family man" standpoint) than attempting to cheat on your spouse and failing only because your target was unwilling. Mind you, I don't actually view adultery as an offense against society that warrants league/team punishment or sponsor abandonment. But if you believe that sponsors were justified in dropping Woods, the argument that Favre "never actually had sex with someone other than his wife" does not work as a justification for treating Favre differently (again, assuming the allegations are true).
Monday, October 11, 2010
Here is Rovell:
I spoke to a couple people yesterday who were surprised that Brett Favre’s Wrangler jeans spots were still running. Surprised that he was still on their Web site. They were surprised that Wrangler had no comment.To read the rest, click here.
Well, I’m not. Put yourself in their shoes, or jeans. You have an athlete who you’ve worked hard to connect to your brand. And, unlike many of the endorsement deals out there, it fits.
Then this story comes along, where Favre might have strongly come on to a woman who was paid to do in-stadium sideline and Jumbotron reporting for the Jets when he played there. There are voicemails and pictures of private parts, allegedly his.
Partly as a result of the media age we live in, these pictures are released to the public. The NFL has to look into it because Favre and the woman he approached, Jenn Sterger, were both paid by the Jets.
But where does that leave Wrangler?
Well, let’s say worst-case scenario the voicemails are from Favre and so are the pictures. Maybe Favre’s not the clean family man we pictured him to be, but there’s nothing there that makes it a natural for Wrangler to sever its deal with him.
If all this is true, is it a put off to his reputation? Sure it is. But you don’t have evidence of adultery and no crime was committed. Kobe Bryant lost his endorsement deals because he was charged with a crime (the criminal case was later dropped and the civil case was settled). Tiger Woods lost endorsement deals because he was unfaithful to the hilt. . . .* * *
Quick legal point: Should Wrangler seek to get out of its endorsement contract with Favre, the wording of the morals clause in that contract will likely play a major factor. If it is expansively worded--such as covering all types of conduct that is publicly reprehensible, at least as deemed by Wrangler--that helps Wrangler; if it is narrowly worded--such as requiring that the Favre commit a crime--that helps to protect Favre.
Saturday, October 9, 2010
University of Baltimore School of Law Symposium "The Death of Amateurism: Implications for Sport and Health"
Thursday, Oct. 28 | 9:30 a.m. – 3 p.m.
John and Frances Angelos Law Center
Venable Moot Court Room
1415 Maryland Ave., First Floor
Baltimore, MD 21201
The University of Baltimore School of Law and its Center for Sport and the Law present The Death of Amateurism: Implications for Sport and Health on Thursday, Oct. 28, 2010. This symposium will explore the changing nature of “amateur” sport, from youth leagues to Division I colleges and universities.
UB Law is pleased to announce that renowned orthopedic surgeon James R. Andrews, M.D. will deliver a luncheon keynote address, Why Are There So Many Injuries to Our Young Athletes? Professionalization and Specialization in Youth Sport, at the event. Andrews has performed over 40,000 surgeries and has operated on many of the sports’ world’s most prominent athletes, including Michael Jordan, Drew Brees, and John Smoltz. A question-and-answer session will follow his remarks.
The symposium's closing speaker will be Kenneth Shropshire, David W. Hauck Professor at the Wharton School of the University of Pennsylvania. Professor Shropshire has written extensively on the business of sports, serves as an arbitrator with clients including the National Football League Players Association and USA Track & Field, and serves as a consultant to amateur athletes during the agent selection process.
A full agenda and other details are available at right. Online registration is now available! For more information, email the Office of External Relations at email@example.com.
In addition, the symposium is being co-sponsored by the University of Baltimore Law Review. Here is the following call for papers:
The University of Baltimore Law Review is issuing a call for papers to any interested law school professors, judges, and legal practitioners for scholarly articles that relate to the topic of the symposium. The articles should be in bluebook format with at least 100-150 footnotes (no more than 350). The pieces should be scholarly and examine a novel legal issue, which may include analyses of recent case law, legislation, or legal theory. All articles are subject to a preemption check. The article is due by December 27, 2010. If you are interested, please email Naomi Sternlicht, Symposium Editor, University of Baltimore Law Review at Naomi.Sternlicht@ubalt.edu.
This is the first year for the Sports and Entertainment Law Journal at ASU College of Law. This Journal will be launched at a Conference on Saturday, October 30, 2010, entitled, "A-Rod to Jay-Z: Sports and Entertainment Law in the 21st Century." The inaugural edition of the journal will feature articles from Sports and Entertainment Law professionals from across the nation. For more information about this conference, please contact firstname.lastname@example.org.
The Conference will consist of breakout sessions in which speakers will present topics to smaller audiences. Question and answer periods will follow each presentation so that the event is a much more engaging and dynamic experience for our guests.
We will also be holding a silent auction throughout the day, with items such as suite seats to a Phoenix Suns game, signed sports and entertainment memorabilia from stars such as Beanie Wells and Mike Tyson, tickets to various other sporting events and concerts, and much more! Proceeds from the auction will be put back in to the Conference and the inaugural publication of the Journal.
Confirmed speakers and/or authors for the conference include:
- David Cornwell of DNK Cornwell
- Matthew Bester of the Antitrust Division of the Department of Justice
- Gregg Clifton with Jackson Lewis LLP
- Allison Brehm with White O'Connor Fink and Brenner, LLP
- Lee Brenner with White O'Connor Fink and Brenner, LLP
- Neville Johnson with Johnson & Johnson, LLP
- Dana Hooper from Greenberg Traurig
- Connie Mableson of Mableson Law Group
- Elsa Cole, former General Counsel for the NCAA
- Tania Hoff of NBC Universal Television Group
- Leonard Aragon of Hagens Berman Sobol Shapiro LLP
- Stuart Paynter of The Paynter Law Firm, PLLC
- Jaia Thomas of the Law Office of Jaia Thomas
- James Marovich of The Marovich Law Firm
- Joy R. Butler of The Law Office of Joy R. Butler
- Marci Rolnik at Lawyers for the Creative Arts
- Myles Lynk, Professor at ASU College of Law
- Betsy Goff, the former VP of Business and Legal Affairs at IMG, SVP of Business Affairs at ESPN, and Professor of Sports Management at UMass Amherst Isenberg School of Management
Friday, October 8, 2010
I have Duke lacrosse on the brain right now. So I was disappointed, although not surprised, that The Times mentioned the now-almost-five-year-old scandal involving false sexual-assault accusations against the lacrosse players. Much as I was not surprised that everyone talked about the Duke lacrosse scandal in covering the murder of Yeardley Love, a UVa lacrosse player, allegedly by her UVa lacrosse-player former boyfriend.
Will Duke lacrosse ever cease to be a reference point for salacious behavior (I cannot call this 'bad' behavior, because having consensual sex with a number of different people is not implicitly bad behavior and, frankly, neither is talking about it) involving Duke University and/or lacrosse? The seven lacrosse players mentioned in the "thesis" certainly did nothing close to bad or even inappropriate (I'm shocked, shocked, to find that male college students have consensual sex with women, often after an evening of drinking). Why would the paper even mention, in connection with them, an old scandal (none of the current players even were on campus in 2006) involving false accusations of criminal misconduct by a corrupt prosecutor and angry faculty? Even if you believe (as some do) that the lacrosse players five years ago were in the wrong for hiring a stripper, the current still situation still does not come close to that.
Wednesday, October 6, 2010
What with clients sending you only signature pages, it becomes very tempting to make a quick little change in a document that no one will notice. They don't notice ... until they do ...
Monday, October 4, 2010
Here are some of the changes as gleaned from those two sources:
1. Currently teams have a 15-day period after the end of the World Series to negotiate exclusively with their current players who are eligible for free agency. That period of exclusivity has been reduced to five days.
2. Contracts must now be offered by December 2. The deadline is now before the Winter Meetings instead of the older deadline that feel after the Winter Meetings.
3. Arbitration must now be offered to free agents by November 23 at midnight. This allows a team to maintain its rights to compensation if a player declines by the new November 30 deadline. If a player accepts arbitration, their salary is decided either by salary arbitration or continued negotiations with just that one team. For instance, last year the Twins offered arbitration to Carl Pavano, and he accepted. Pavano has been a key member of the Twins’ rotation this year.
4. Players who are eligible for free agency because they have six years of credited service no longer need to apply within a 15-day window. Instead, they will become free agents automatically at the conclusion of the World Series.
The agreement resolves a number of problems that were slated for the grievance and arbitration process that is part of the current Collective Bargaining Agreement. It also seems to signal a positive approach between the two sides prior to the December 11, 2011, expiration of the current CBA.
Sunday, October 3, 2010
[Update]: I just read an excerpt from Bielock's book; she mentions to New Yorker piece (written, it turns out, by Malcolm Gladwell), but rejects the distinction between panicking and choking. She also offers a definition of choking:
Choking under pressure is poor performance that occurs in response to the perceived stress of a situation. Choking is not simply poor performance, however. Choking is suboptimal performance. It's when you—or an individual athlete, actor, musician, or student—perform worse than expected given what you are capable of doing, and worse than what you have done in the past. This less-than-optimal performance doesn't merely reflect a random fluctuation in skill level—we all have performance ups and downs. This choke occurs in response to a highly stressful situation.
I know Mike is a Sox fan, but I have to let Buckner off the hook as an all-time choke. That was an error. But Buckner was a bad fielder who could not walk and should not have been in the game at that point. The definition above further exonerates Buckner--I am not sure that error was so suboptimal for him. If anything, the bigger choke was by the Sox relievers in the eleven pitches leading up to Buckner's error.
Choking to me requires someone falling from heights and it typically is more than one single play. I would point to Jana Novotna's meltdown in the Wimbledon Women's Final in 1993 or Greg Norman at the 1996 Master's--on the verge of prevailing, their entire games fell apart over a series of plays.
What is the most infamous example of choking in sports?
I'd have to say it's Bill Buckner in Game 6 of the 1986 World Series between the Red Sox and Mets, when a routine ground ball hit by Mookie Wilson in the 11th inning went through Buckner's legs, leading the winning run to score (the Mets would go on to win Game 7).
The Buckner video can't be embedded in this post, but you can watch it here at MLB.com.
Saturday, October 2, 2010
New Article: Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment
The article is 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).
Here is the article's abstract:
In 2008 the National Collegiate Athletic Association (NCAA) launched its national advertising campaign titled “Going Pro in Something Other than Sports.” As a major strategic and branding initiative by the NCAA years in development, this effort seeks to emphasize the academic rather than athletic abilities of collegiate student-athletes. Humor captivates the audience yet it is the campaign’s tagline that the NCAA has “over 380,000 student-athletes and just about every one of them will turn professional in something other than sports” that resonates with the viewer. While this declaration is true, and the promotion’s purpose is clearly aimed at calling attention to the core purpose of the NCAA, thousands of student-athletes begin professional sports careers every year. Given the complexities of the amateur to professional transition process, coupled with the fact that student-athletes and their families are woefully unsophisticated and unprepared, colleges and universities have done shockingly little to assist student-athletes through this process.To download a free copy of the article, click here.
Many of these student-athletes do not make optimal decisions during this process for a variety of reasons, including conflicting and poor sources of information, the lure of professional money and an inability to understand the many complex legal and regulatory issues surrounding the amateur to professional transition. The results of these poor decisions can be dramatic and affect a long list of stakeholders, including student-athletes and their families, colleges and universities, the NCAA, professional sports leagues and players associations and professional advisors.
Although fans are most familiar with the riches and fame of professional athletes, the reality is that such a lofty status is the exception and not the rule. Far more student-athletes end up as hidden victims of this flawed process. The athlete may suffer permanent career and financial harm while his former school may suffer penalties and embarrassment for any misconduct that occurred while the athlete attended the school. Furthermore, the NCAA and/or the professional league with which the athlete is now involved may have to deal with a paying public critical of their operations and constituents.
This article will discuss the existing process for this transition, the problems therein and the urgency with which these problems need to be addressed. Then we will explain why it is in the best interests of all interested parties to improve the system and make recommendations for doing so.
Among our most meaningful recommendations:
• Colleges must enhance their use of Professional Sports Counseling Panels
• Colleges must increase funding for Compliance Offices.
• Colleges must actively participate in the enforcement of the Uniform Athlete Agents Act.
• The NCAA must consider increasing its loan options to student-athletes. The loans can be forgiven if the student-athlete does not break any NCAA rules.
• The NCAA must reconsider its Bylaws as they relate to permissible advisors and prohibited agents.
• The NCAA should create and fund seminars, conferences, and webcasts for student-athletes on the amateur to professional transition.
• The NCAA should consider applying a strict liability standard to Lack of Institutional Control findings in Infractions cases.
• Colleges and the NCAA should develop a for-credit course that educates student-athletes in this process.
• Professional leagues and unions should consider allowing for the punishment of athletes found to have broken NCAA rules.
• Agents and other professional advisors must police their own industry.