Friday, April 29, 2011

New Sports Illustrated Column: Eighth Circuit grants temporary stay -- NFL Lockout is Back On

Here's my new SI column on tonight's big news from the Eighth Circuit: Judge Nelson's preliminary injunction order has been temporarily stayed and the tea leaves suggest the order will be made permanent. 

Thursday, April 28, 2011

Tomorrow in Boston: A Discussion on NFL Labor Negotiations

My Vermont Law School colleague and good friend Professor Sean Nolon, who is Director of the Dispute Resolution Center at our school, and I will give a joint presentation the NFL labor crisis tomorrow at the Boston office of Bulkley, Richardson and Gelinas.  While the event is primarily geared for Vermont Law School alumns, please contact me if you would like to attend as I can secure you an invitation.


You are cordially invited to a
Boston Vermont Law School Alumni Association
Brown Bag Lunch
 
NFL Labor Negotiations
with guest speakers
VLS Professors Sean Nolon and Michael McCann
 
Friday, April 29, 2011
 12:00pm
 
at Bulkley, Richardson and Gelinas, LLP
125 High Street
Oliver Street Tower, 16th Floor
Boston, MA
 
RSVP to
or 802-831-1347
 
Please remember to RSVP so that we can add your name to the list for security clearance at Bulkley, Richardson and Gelinas.
 
 
 

164 Chelsea Street, PO Box 96 | South Royalton, VT 05068 US

Reminder: SLA and Sullivan and Worcester Panel tonight

If you're in the Boston and are looking for a timely sports law discussion - it should be fun and I strongly suspect the NFL legal chaos will work itself into the discussion:


The Sports Lawyers Association and Sullivan & Worcester LLP present

Boom Goes The Dynamite! Top Sports Transactions of 2010
Thursday, April 28, 2011
Program: 5:30 pm - 6:30 pm
Reception: 6:30 pm- 7:30 pm
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
MAP

The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC.

Speakers:


Please RSVP by April 22. If you have questions or need more information, please contact Katie Potter at 617.338.2923 or kpotter@sandw.com.

Wednesday, April 27, 2011

New Sports Illustrated Column: Judge Nelson Denies NFL Stay. What's Next?

Judge Susan Nelson. Do NFL owners now regret Judge David Doty's removal?

Judge Nelson says no stay for NFL, so the NFL is -- quite reluctantly and perhaps temporarily -- back in business. Here's my new SI 10-point column on what that means for the league and players.  Here's an excerpt:
4. So what would you recommend the NFL do?

First, NFL teams should re-open business without any physical or other obstructions to players. A court has told the league to resume operations. It should do just that and not pull any gimmicks. It may be an awkward time for teams and players, but only if they let it be.

Second, the NFL should -- for the time being -- not employ a salary cap, meaning teams should be able to sign free agents without restriction. Teams would still be deterred in their spending because a new CBA will eventually be reached and it will contain a salary cap -- no team wants to be way over the cap when the new CBA is put in place.

Third, teams should remove franchise tag designations and other restrictions on players' free agency rights. History should convince the league of this point: the NFL has lost antitrust cases involving unilaterally imposed restrictions on movement of free agents between teams. Judge Nelson notably stipulated that teams are not obligated to sign free agents. In one respect, that stipulation benefits teams since they cannot be alleged to have engaged in a group boycott under federal antitrust law by not signing free agents. But as a matter of practice, the stipulation may not prove meaningful: teams may not be legally obligated to sign free agents, but if they don't, their competitors will.  . . .


Boston Marathon concedes its course is ineligible for world, American records

The organizers of the Boston Marathon decided today not to contest IAAF rules that make the course ineligible for a world record. (The Boston route ends 459 feet of elevation below the start, and it is a point-to-point course that is susceptible to a tailwind such as the one last Monday that helped Geoffrey Mutai finish in 2 hours, 3 minutes, 2 seconds _ 57 seconds faster than Haile Gebrselassie's world record.)

B.A.A. officials had said they would file the paperwork to have the record certified, even though the IAAF language is clear and Boston has long been known to be ineligible. Today the B.A.A. decided not to force a confrontation over the issue. Instead, it said it would "engage members of Boston's scientific and medical communities" to see if they can't come up with new rules that would better recognize the challenges of the course, notwithstanding its net downhill layout.

SBJ Sports Law Article

The April 25, 2011 issue of Sports Business Journal includes an insightful article by Bill King about several lawyers who work where the law and the sports industry overlap. Lawyers at Proskauer, Weil Gotshal & Manges, O'Melveny & Myers, and other law firms are profiled. The article appears to be gated online, but is worth a read if you can get access to a hard copy or if you have a subscription to the web-based companion publication.

Josh Luchs to speak at New York Law School tomorrow

From Elliot Solop of The Sports Tomato:
Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs  hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!
Here’s the info:
Thursday, April 28, 2011
1:00 p.m. 2:00 p.m.
Room WA10
About our speaker:

Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents.  Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.
Notable former clients of Josh Luchs include:
Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).
Please RSVP to nylawsports@gmail.com.

Tuesday, April 26, 2011

New Sports Illustrated Column: How does NFL Ruling Impact the NBA and NBA Players?

In a new SI column, I write the potential impact of Judge Nelson's order in favor of NFL players on the NBA and NBA players, two groups which are headed for a similar labor crisis this summer and possibly into next season.

Here's an excerpt:
NBA players may be less able to show irreparable harm caused by a lockout.

Another factor in a trial judge's decision to grant a preliminary injunction is whether the plaintiffs -- be they NFL players or NBA players -- would suffer irreparable harm if the injunction is denied. Irreparable harm refers to a harm that cannot be adequately remedied by money damages.

Nelson, in relying on numerous affidavits, including from such prominent player agents as Neil Cornich and Tom Condon, determined that NFL players would suffer irreparable harm if they missed the 2011 season. During that time, players would age, and given that NFL players are usually in their 20s or early 30s and usually only play a few seasons, missing just one year of football might be akin to the typical person, who normally works decades in his/her lifetime, missing many years of work. Players would also lose out on conditioning and training opportunities. And as Nelson ruled, free agents are hurt even before a missed 2011 season since they cannot sign with teams during a locked out off season. She also found that 2011 rookies would be particularly hurt by a lockout since they would return in 2012 after missing a year of football -- in both the pros and college -- and then be expected to compete with 2012 rookies, who would be fresh off playing in college.

Most of Nelson's logic holds true for NBA players, as well. In fact, to advance her reasoning on irreparable harm, she cited Spencer Haywood's successful antitrust suit against the NBA in 1971. Haywood, one of the best players in the rival American Basketball Association and then a signee of the Seattle SuperSonics, was barred from entering the NBA until four years after his high-school graduation. The NBA's restriction had not been collectively bargained and was thus subject to antitrust law. A court found that he would suffer irreparable harm by missing four years of playing in the NBA.

The presence of alternative employment opportunities in pro basketball, however, could sway a different judge, particularly one who is more inclined than Nelson to favor the league's views. Indeed, if the NBA instituted a lockout, some players would likely seek and obtain comparable employment in Europe and elsewhere. While those leagues impose restrictions on the number of U.S. players allowed on rosters, the restrictions could be changed in the event of the supply of available NBA players suddenly surges on July 1. The NBA would argue that irreparable harm should not be found if players can pursue comparable opportunities elsewhere.

In response, however, NBA players would likely cite the Haywood case: even though Haywood could play professionally in the ABA, a court nonetheless found that he suffered irreparable harm by not being able to play in the NBA. NBA players would probably also charge that playing and living abroad should not constitute an equivalent employment opportunity to playing in the NBA and living in one's home country.

Monday, April 25, 2011

New Sports Illustrated Column: NFL Players Secure Big Victory before Judge Nelson

Judge Nelson granted the players the injunctive relief they were seeking -- but an appeal may make it a short-term success.  I have an SI column on the ruling and what it means.  Here's an excerpt:
8. What effect, if any, does Judge Nelson's ruling have on the NBA?

The collective bargaining agreement between the NBA and the National Basketball Players' Association (NBPA) will expire on June 30. Just like we saw last month with the NFLPA and the NFL, the NBPA is poised to decertify and the NBA is poised to institute a lockout.

On one hand, Judge Nelson's ruling sends a warning to the NBA and its owners that, at least in her view, antitrust law holds a dim view of lockouts and that judges should not wait for the NLRB to decide on unfair labor complaints.

On the other hand, the NBA is in a very different situation.

For one, the NFL's legal argument has been hampered by the fact that not one NFL team can show that it is losing money. The inability of a team to do so suggests that enjoining the NFL lockout would not force an NFL team to lose money. The NBA, in contrast, asserts that 22 of its 30 teams will lose money in the 2010-11 season, and the league is willing to open the books to prove it. A court decision to lift a lockout instituted by the NBA would therefore subject NBA teams to losing money in the 2011-12 season. Such a consequence could motivate a judge reviewing an NBA lockout to be less willing than Judge Nelson to lift the lockout.

Second, irreparable harm may be more difficult for NBA players to show, since unlike NFL players who can play nowhere else and earn an NFL-quality income, some NBA players would be able to secure lucrative contracts in Europe and elsewhere during a lockout. If NBA players can't show irreparable harm, they would not be able to convince a judge to enjoin an NBA lockout.

Third, Judge Nelson's decision would not bind a court that reviews the NBA lockout. In fact, it is likely that such a court would be in New York, where both the NBA and NBPA are located. The NFL and NFLPA are litigating the lockout in Minnesota because the parties choose to do so in their collective bargaining agreement.

Bottom line: while Judge Nelson's ruling likely caused some concern for NBA teams, the NBA is in a very different situation and a lockout may be viewed more favorably by a court.

The Unlucky NFL Draft Class of 2011

After months of speculations and predictions the NFL draft will finally begin on Thursday, April 28th. Commissioner Roger Goodell will host the festivities—expect plenty of boos from New York’s finest—and call out the names of first round picks. While sports fans will argue over selections and trades, it’s important to give a nod to the man who conceived of professional league drafts—Bert Bell.

Tired of watching the NFL power brokers of the day—Bears, Packers, Redskins, and Giants—sign all the college stars, Bell proposed a new system to distribute talent. As president of the Philadelphia Eagles, Bell proposed the concept of an NFL draft at a league meeting on May 18, 1935. The goal was competitive parity and after some discussion the league voted unanimously to support this new initiative.

The Boston Globe’s Greg A. Bedard has a wonderful story about Bell in the April 24, 2011 edition, noting this year serves as the 75th Anniversary of the NFL Draft. Here’s a link to the story.

It is no disrespect to Bell as a pioneer if agree with Alan C. Milstein's argument, as presented in this article, that having a college draft at all is illegal.

* * * *

While the press and talking heads (quick nod of respect to personal favorite NFL Network and Boston College alumnus Mike Mayock) analyze and grade the teams’ efforts over seven rounds, don’t forget about how this year is unique. Traditionally, as soon as the name of Mr. Irrelevant (the last pick of the draft) is called, the phone lines begin heating up between teams and the agents of those representing “priority free agents” (PFAs).

Often it is better to be a free agent than a late round draft selection as you can choose the team with the best opportunity for someone playing your position. This year, priority free agents waiting for their cell phones to ring will hear only deafening silence. Why? Because the NFL lockout forbids any contact with free agents and that covers not only those NFL players whose contracts have ended but also those hoping to enter the league.

For many of us in the field of “sports law,” professional league drafts are fascinating symbols. As sports fans they hold that special aura of future promise for our favorite teams. However, we also understand the unique laws that forbid MBA graduates to be forced to work in a city that selects them “congratulations you’re now assigned to a consulting firm in Vancouver!!” yet allows a football player to have his rights assigned and told where to report for work.

While you enjoy the pomp and circumstance of this yearly spectacle, don’t forget to tip your cap to Bert Bell and give thought to those PFAs who will be waiting by the phone as brighter minds than mine try to figure out how to get the business of football back up and running.

[Note: A longer version of this article can be found at the Huffington Post here.]

Sunday, April 24, 2011

NFL and Law Panel at New York Law School this Tuesday

Alycia Huckabey - the President of the New York Law School Sports Law Society - lets me know about a great event tomorrow:

* * *

Please join the New York Law School Sports Law Society for an exciting event this Tuesday April 26th from 3:30- 5:30 pm. Representatives from the NFL Players Association and a current NFL player (name to be announced soon) will discuss the current NFL lockout and answer questions.The event will be held at New York Law School, in the Auditorium (A014). 

 If you are interested in attending this event please RSVP to Alycia.huckabey@law.nyls.edu.


Best,
Alycia Huckabey 

NFL PLAYERS ASSOCIATION TO HOLD DISCUSSION
TUESDAY AT NEW YORK LAW SCHOOL

WHAT:
Representatives from the NFL Players Association and a player from the NFL will hold a session at New York Law School, and is open to students, the public and media.

The program titled, “The NFL Lockout: How We Got Here and What Comes Next” is part of a series of appearances held at higher education institutions.
WHO:
·       George Atallah, NFLPA Assistant Executive Director of External Affairs
·       A Player from the National Football League (name to be released closer to date)
·       Moderated by the New York Law School Sports Law Society

MORE:
March 12, NFL owners locked out their players, ending more than 20 years of labor peace in America’s most popular sport. April 19, George Atallah and a player from the NFL will host a presentation on the state of football.

Topics such as success of the game, the lockout and how the sides reached this point will be discussed. A full question-answer session will follow.

Media availability will be conducted at the conclusion of the event.

WHEN/
WHERE:
Tuesday, April 26, 2011 3:30 pm -5:30 pm
New York Law School
185 W. Broadway New York, NY 10013
Auditorium, A014

MEDIA:
For more information or to RSVP:
Alycia Huckabey (New York Law School)


Toreros and Black Sox: Point-Shaving in Southern CA Sparks Reflection on the Recurring (Underreported?) Problem of Fixing Games

On April 11, 2010 a Grand Jury in the Southern District of California handed down an indictment against two former University of San Diego basketball players, a former assistant coach, and seven others, for Conspiracy to Commit Sports Bribery, Conduct an Illegal Gambling Business, and Distribute Marijuana in violation of 18 U.S.C. 371. The indictment does not specify what games were fixed, but it alleges that San Diego players influenced the outcome of multiple games for monetary bribes. One of the players implicated in the scandal is Brandon Johnson, San Diego’s all time leader in points and assists.

While opinions vary on the prevalence of teams “throwing” games, it has undoubtedly been going on for a long time. In fact, new evidence suggests that it may have been more common in baseball during the early twentieth century than once thought. The infamous Black Sox scandal from the 1919 World Series has been well documented, but a recent Associated Press story indicates that their cross-town rival may have done it first. A 1920 deposition of one of the banned White Sox fixers, Eddie Cicotte, stops short of accusing the Cubs of throwing the 1918 World Series against Boston, but strong inferences are made that members of the Cubs were offered $10,000 to throw the World Series and that the White Sox actually got the idea from the Cubs. Historians’ note that players during this time were grossly underpaid and the bribe represented a substantial sum. The motive, coupled with a few suspicious plays during the 1918 Series, suggests that the Cubs’ drought could have been at least a few years shorter than it currently stands. 

While this anecdote offers an interesting insight into the influence of organized crime during that era, it is (presumably) of little consequence, considering the salaries of today’s professional athletes. It would be na├»ve to think gambling does not play a role in professional sports (think recently paroled NBA referee Tim Donaghy), but “fixing” is much less common in the professional realm because the players have too much at stake. The question is, just how common is it at the collegiate level where NCAA amateurism standards strictly prohibit the paying of players. Like the underpaid baseball players of yesteryear, the latent motive exists.

High profile point shaving scandals have marred college basketball for decades. Point shaving at CCNY during the 1950-1951 season proved disastrous for the once prominent program. In 1978-1979, Boston College was embroiled in a scandal that involved infamous gangsters Henry Hill and Jimmy Burke. Prior to the San Diego indictments, the last major point-shaving scandal occurred at Arizona State in the mid 1990’s. So are these merely isolated incidents? A 2008 study on wagering in NCAA athletics suggests probably not. The study revealed that 1.6 percent of men’s basketball student athletes were asked to affect the outcome of a game and 2 percent admitted to betting on their own team.

While this percentage is not insignificant, it is difficult to predict just how pervasive the problem really is. First, the NCAA, burdened by a consistent array of compliance issues, does not have the staff to adequately monitor illegal gambling, and furthermore, the involvement of organized crime often takes investigations out of the NCAA’s hands. Second, games fixing like point-shaving is difficult to prove. It usually involves minimal differences in point spreads and a player’s efforts to impact a game undoubtedly go unnoticed more often than not. Finally, the best players are the ones with the most opportunity to impact games, but also the most at stake. The involvement of Brandon Johnson at San Diego proves that the star players are not immune, but a player with significant professional prospects has less incentive to risk his life and his career.  The San Diego scandal may induce the NCAA to ramp up its enforcement efforts, but this incident will unfortunately not be the last.

See other writing on this Blog related to point shaving from Geoff, Howard, and Greg.  HT to law clerk, Brian Konkel, for his work on this piece.

Saturday, April 23, 2011

Scocca on the expanded wild card

Tom Scocca at Slate, who shares my antipathy for the baseball wild card for most of the same reasons (as well as a couple I had not thought of), argues that the new proposal to add a second wild card actually turns out to be a good second-best option (the best option being eliminating the wild card altogether, which, unfortunately, is not going to happen).

As Scocca explains, the already-overstuffed schedule, along with MLB's recognition that things cannot go any deeper into November or earlier into March, means that the addition "wild-card round" must be short--one game or at most two-out-of-three. Weird things can happen in a short series. So this creates a meaningful incentive--currently missing--for a top team to win the division rather than settling for the wild card--avoid that short series. It also means that the two best second-place teams go head-to-head, rather than "battling" one another by proxy against very different (particularly in difficulty) schedules.

True, it also may mean more 87-win teams in the playoff race every year. But again, this is just a second-best option.

Utah AG Announces He Intends to File an Antitrust Suit Against the BCS

USA Today reported on Wednesday that Utah Attorney General Mark Shurtleff intends to file a federal antitrust suit against the Bowl Championship Series within "the next couple of months." Shurtleff reportedly told the paper that the attorneys general of at least two other, unnamed states would join him in the suit. The story also reports that Shurtleff stated the U.S. Department of Justice has indicated it would consider following on with its own formal investigation should the state AGs take the lead by filing a suit. Shurtleff is seeking to enlist the help of an antitrust law firm to assist with the case.

This is not the first time that Shurtleff has spoken out against the BCS. A vocal critic of the BCS dating as far back as 2003, Shurtleff announced that he was formally investigating a potential antitrust claim against the BCS in 2009. Meanwhile, Shurtleff stated last October that his office had finished a draft complaint for the case. It will be interesting to see if Shurtleff follows through on this latest threat, or if he is just trying to increase the pressure on the BCS heading into its annual meeting next week in New Orleans. Given Shurtleff's previous stated desire for the U.S. Department of Justice to take the lead on an antitrust suit against the BCS, this latest announcement may also provide an indication that the federal government is unwilling to initiate a suit itself.

While the merits of such a suit can, of course, be debated (see here and here), ultimately I'd be surprised if Shurtleff's suit ever proceeded all the way to trial. There is little incentive for the BCS conferences to spend millions of dollars (and risk treble damages) defending a system that generates hundreds of millions of dollars less per year than would a playoff system.

Meanwhile, although BCS officials have previously threatened to return to the pre-Bowl Alliance post-season model should the BCS system be challenged legally, this threat rings hollow for several reasons. First, the BCS conference schools would be leaving too much money on the table -- money they have grown to depend on during the lifespan of the BCS -- to ever seriously consider a return to the old system. Second, as Sports Illustrated's Andy Staples notes, even if college football initially did go back to the pre-Bowl Alliance days, several of the current BCS conferences (in particular the Big East and ACC) would likely fare much worse than they would under a playoff system. Therefore, even if the SEC, Big 10, Pac 12, and Big 12 were all content to return to the old system, the ACC and Big East would likely join with the current non-BCS schools to give the "have-nots" a significant majority within the Football Bowl Subdivision, dramatically increasing the pressure on the NCAA to finally implement a playoff system.

Therefore, although an antitrust suit against the BCS is itself unlikely to directly lead to a court order mandating that the NCAA adopt a playoff system, I strongly suspect that a playoff system would ultimately result should AG Shurtleff files suit. It simply doesn't make sense for the BCS conferences to expend the resources necessary to defend the current system, and in lieu of the current arrangement, a playoff system is the most practical option.

Update #1: A new report out states that AG Shurtleff will be meeting with officials from the U.S. Justice Department this week, so my assumption above that the federal government may be unwilling to be involved in the case might be premature.

Update #2:
AG Shurtleff discussed his decision to file suit against the BCS with a local radio station yesterday. The interview is available here.

Friday, April 22, 2011

New Sports Illustrated Column: Can Bud Selig legally take Dodgers away from Frank McCourt?

I have a new SI column on Bud Selig's decision to remove operations power from embattled Dodgers owner Frank McCourt, who will retain his equity interest but effectively be barred from any decision-making. Here are excerpts from the column:

* * *

. . . McCourt could argue that Selig and Major League Baseball have violated the terms of the franchise agreement and have consequently caused him financial harm. To advance that claim, McCourt would insist that Selig lacks the specific authority to take over a franchise, particularly a franchise that is allegedly in compliance with MLB's financial guidelines.

McCourt could also emphasize that other ownership groups have demonstrated numerous failings -- be they professional or personal -- and yet Selig has not exiled those owners from their teams. For instance, Selig has allowed Mets owner Fred Wilpon to remain in charge despite his exposure to lawsuits brought by victims of Bernie Madoff. McCourt could probably find other instances of owners having some combination of financial, legal or family troubles, or instances of fans outside other clubs' stadiums who have been hurt due to inadequate security. His goal would not be to slander other owners, but rather to portray his problems as far from extreme and certainly not worthy of expulsion from MLB.

* * *

In addition to the "best interests of the game" clause, MLB could also highlight the "waiver of recourse" clause found in the MLB constitution. The waiver of recourse clause prevents clubs from engaging in litigation against the commissioner, the league or other owners. Indeed, by virtue of becoming a franchise owner, an owner waives away the right to seek remedies that would normally be available through the legal system. The clause also compels owners to resolve their differences internally and to accept the commissioner's judgment as binding.

Waiver of recourse clauses can be found in a wide range of business contexts. Generally, it is difficult for purportedly aggrieved parties to overcome these clauses, especially if the clauses were freely and voluntary negotiated by sophisticated business parties (all of which would hold true with McCourt in his purchase of the Dodgers).

A waiver of recourse clause helped MLB prevail over Finley. The court held Finley could only overcome the clause if he could show that commissioner Bowie failed to follow baseball's internal rules or violated basic due process. Basic due process requires the commissioner to act fairly and not arbitrarily or with bias; the furnishing of fair notice, use of substantive hearings, reliance on neutral experts and uniform application of consistent rules all help the commissioner show that a fair and substantive process was used.

* * *

To read the rest, click here

Thursday, April 21, 2011

In track, the record isn't always the fastest time

[The following post is authored by Associated Press sports writer Jimmy Golen, who is a graduate of Yale Law School and an adjunct professor at Boston College - we look forward to more of Jimmy's excellent commentary on our blog -- MM]:

* * *

If you shoot a 58 in a PGA Tour event, that’s a new record. It’s less impressive if it happens in CVS Charity Classic than the U.S. Open, but it’s still a record.

Home runs in the thin air of Denver’s Coors Field still count the same as the ones hit at sea level in Boston. And records set by Barry Bonds, Mark McGwire and Roger Clemens still stand (see Bud Selig's comments from today about Bonds and his records), even though there’s reason to doubt that they were achieved honestly.

In track and field, though, the fastest time is not always the record time, as those who followed the Boston Marathon this week learned when Geoffrey Mutai of Kenya ran the fastest 26.2 miles in history.

Mutai’s time of 2 hours, 3 minutes, 2 seconds was almost a minute faster than what had been – and likely will remain -- the world record: a 2:03:59 run by Haile Gebrselassie in Berlin in 2008. Likewise, Ryan Hall’s 2:04:58 was 40 seconds faster than the American record set by Khalid Khannouchi nine years ago. But because the finish line in Boston is 459 feet of elevation below the starting line in Hopkinton, times set on the historic course are ineligible for records – no matter much uphill running there is between them. Boston is also a point-to-point course; the international and U.S. governing bodies prefer loops, because if you finish near where you start it doesn’t matter how much time you run with the wind at your back, you have to go about the same distance with it in your face. It’s like “What goes up, must come down,” except horizontal.

Those who follow running say this is an accepted part of the culture. When someone breaks the record in the 100 meters, for example, the first thing the crowd will do is look to the anemometer to see if it was wind-aided, much like a football fan looks for a penalty flag before celebrating a touchdown. So it is not uncommon for a world record to be different – slower -- than the “world best,” and the running community has accepted this.

The goal of these rules is to certify only records set in regular competition, not “tricked-up” courses designed specially for fast times. It’s possible, as a scientific exercise, to pick a 26.2-mile section of the interstate that runs slightly downhill, wait until the wind is blowing in the right direction, and fire the starting gun. It is likely that the 2 hour barrier could be broken, but that would put the record out of reach of future, real marathons. And that is what the IAAF is trying to avoid.

It’s hard to argue that wind wasn’t a factor in Mutai’s run. The tailwind at the start was announced at 21 mph. Anyone who’s run Boston when the wind comes in from the Atlantic Ocean knows that it’s a time-killer. And the fact that another runner, Moses Mosop, also beat Gebrselassie’s time – and two more men broke the Boston course record – gives a sense of how much the wind might have affected the race. That doesn’t taint the competition because it affects all competitors equally. But when you start measuring one race against another, which is the goal of a record book, it can be like comparing apples and herring.

Still, there is some inconsistency in the governing bodies’ position. They will certify races run with “rabbits,” who are hired to run a fast and steady pace and even shield the top runners from the wind. Gebrselassie’s Berlin win in 2008 was set up for him to break the record, and he did. Runners insist that this is a much bigger advantage than a tailwind, or a 459-foot drop in elevation. The IAAF also allows Boston times to be used to meet Olympic qualification standards, and USA Track and Field will let Hall into the Olympic trials based on Monday’s run.

In the end, there’s something just plain odd about saying that the Boston Marathon, long considered one of the toughest races in the world, is too easy to be eligible for a world record. Only three times before in history had a world record been established in Boston, all of them before the IAAF refined the rules about eligible courses. So while it has long been known that a time run in Boston would not count for a record, no one seems to have worried much about it because it was unlikely to come up. Then Mutai blistered the course on Monday. B.A.A. officials said they would apply to have the record certified, even though it’s clear the IAAF can’t do that without changing its rules. Rob de Castella, who won Boston in 1986, called on the governing bodies to recognize the record; this could be done either by grandfathering Boston in or by refining the rules to allow courses that go both up and down to have a larger drop in elevation.

In the meantime, we are likely to see a repeat of the debate that surfaces whenever the bright-line rules of a sport conflict with what we might more intuitively consider the right outcome. We saw it with the Tuck Rule, and with Armando Galarraga’s near-perfect game. A lot could depend on which feat the running community views as the real record and how the times are described in common parlance.

One thing is clear: the B.A.A. isn’t going to change its 115-year-old course to suit the IAAF. As executive director Tom Grilk told the AP the day after the race: "If somebody wants to put up a dome and chase Swifty, the rabbit from Wonderland (dog track), around, God bless them. We'll keep doing what we've been doing for 100 years: Firing off a gun and saying, 'Go.'"

Tuesday, April 19, 2011

Transitioning from the NCAA to the NBA: A Time for a Change in Rules

New article from the Huffington Post by Boston College's Warren K. Zola on the challenges student-athletes have in transitioning from the NCAA to the NBA under current rules.


The article starts:

"The recently concluded NCAA men’s basketball tournament has once again highlighted some of the very best amateur basketball talent in the country. While some players continued to showcase their exceptional talents, new stars also emerged in the considerable spotlight of the most watched basketball tournament in the world. Many of the college basketball fans, whose sheer size enabled the not-for-profit NCAA to recently sign a 14 year, $ 10.8 billion dollar rights agreement with CBS and Turner Broadcasting, now turn their attention to the 2011 NBA Draft which will be held on June 23rd.

This article calls attention to the challenges that student-athletes in the sport of college basketball have when trying to make a fully informed decision as they evaluate whether or not they should enter the NBA draft and forgo remaining college eligibility. While unique to men’s basketball, this precise situation highlights a more global trend in which colleges, conferences and the NCAA have done shockingly little to provide guidance and counsel as student-athletes across the country navigate the process of transitioning from college to professional leagues; an analysis put forth in a recently published law review article this past winter.

As is the case for every sport the process of entering the NBA is distinct and often confusing to those that have this opportunity."

To read the article in its entirety you may download it here.

Saturday, April 16, 2011

Would Appeal by Barry Bonds succeed?

I talk to Paul Elias of the Associated Press about this topic. Bonds plans to appeal and argue that the jury instructions for Count Five constituted a legal error by Judge Illston. While the standard of review would be de novo, I don't think the appeal would work. Elias interviews several other persons, including Stanford Law Professor Bill Gould. Here are our comments excerpted:
* * *

"Appeals are hard,'' said Vermont Law School professor Michael McCann, who specializes in sports law.

McCann and many other legal analysts said the Bonds defense team has its work cut out in flipping the jury's verdict. U.S. District Judge Susan Illston, who presided over the trial, is rarely overturned on appeal and observers said she deftly handled Bonds' three-week trial.

"An appellate court is always reluctant to overturn a trial judge with a good reputation who ran a good trial,'' McCann said. "Judge Illston was really deliberate on everything she did and the appellate court will recognize that.''

* * *

Stanford Law School professor William Gould said it will be difficult to say persuasively that the obstruction conviction is incompatible with the other charges just because the other lack verdicts.

"It's hard to argue there are mutually exclusive charges when you have only a verdict on a single charge,'' Gould said.

* * *

To read the rest, click here.

Legal Play in the NFL Lockout

Clay Travis and I speak with J. Craig Williams about the NFL lockout for the Lawyer 2 Lawyer Show on the Legal Talk Network.

Here is our discussion: Legal Play in the NFL Lockout (to directly access the audio file of our discussion, click here).

Friday, April 15, 2011

New Jersey State Bar Association Symposium: Who You Calling an Amateur? Legal Perspectives on the NCAA’s Amateurism Rules

This looks like an excellent event:

Wednesday, April 20, 2011 – 6 p.m.
Seton Hall Law School – One Newark Center, Room 373, Newark, NJ
Who You Calling an Amateur? Legal Perspectives on the NCAA’s Amateurism Rules

Hosted by the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association
co-sponsored by the Sports Lawyers Association


This program will discuss the NCAA’s current amateurism rules, proposed changes to those rules, and the recent litigation relating to the use of a student athlete’s name and likeness.

This program has been approved for the following CLE credits: 1.8 NJ, 1.0 PA, 1.5 NY

$32 per person for EASL Section members, includes program, CLE credits and dinner.
For those wishing to attend only the program and dinner without receiving CLE credits, the cost is $17 per person.

Individuals interested in attending can register online at the NJSBA website.


Speakers include:
  • Rich Ensor, Esq. (MAAC Commissioner)
  • Chris Monasch, Esq. (St. John's Athletic Director)
  • Kim Keenan-Kirkpatrick, Esq. (Seton Hall Associate Athletic Director for Compliance)
  • Bruce Rosen, Esq. (McCusker, Anselmi, Rosen & Carvelli)
  • Daniel Brown (Sheppard, Mullin, Richter & Hampton)
  • Kerry Cahill (former student-athlete)

Cleveland-Marshall College of Law Sports Law Symposium today

Sorry for the late notice, but if you're in the Cleveland area, there is an outstanding sports law symposium this afternoon at Cleveland-Marshall College of Law:

Cleveland-Marshall College of Law

Entertainment and Sports Law Symposium

The Legal Evolution of Professional Golf and Tennis


Friday, April 15, 12 p.m.- 5 p.m.


C|M|LAW, Moot Court Room, 1801 Euclid Avenue

Sponsored by the Entertainment and Sports Law Association.

Special guest Panelists will share their experience and knowledge on the legal aspects of player representation, event management, broadcasting, publicity rights, exploitation, and legal governance.

12:00 pm – 12:30 pm: Registration

12:30 pm – 2:00 pm: The Legal Evolution of Professional Tennis

Kevin Callanan, vice president of IMG Tennis


Jim Thomas, former tennis professional

Gavin Forbes, senior vice president of IMG Tennis

2:15 pm – 3:15 pm: Legal Governance of the

Zandria Conyers, legal counsel to the LPGA

Peter Carfagna, executive-in-residence Professor at C|M|LAW, LPGA Board Member

3:30pm – 5:00 pm: The Legal Evolution of Professional Golf

Dave Lightner, owner of Fairway Sports Management


Jay Burton, senior vice president, IMG Golf

Jim Juliano, managing partner at Nicola, Gudbranson & Cooper, LLC 


This symposium is free and open to the public. Preregistration is not necessary.

Continuing Legal Education credit: 4 hours (free)

Contract Michael Kluchin at Michael.kluchin@law.csuohio.edu for more information

Wednesday, April 13, 2011

New Sports Illustrated column: Barry Bonds Verdict: Who Won?

I have a new SI colum on the Barry Bonds verdict. Bonds was convicted on obstruction of justice, but Judge Illston declared a mistrial on the three perjury counts. Here's an excerpt of my column:

* * *

But federal prosecutors convict 90 percent of indicted defendants. Shouldn't they have done better here?

This question begets big picture and small picture responses.

Big picture first. While the 90 percent statistic has received a good amount of attention, it does not speak to considerable differences in wealth among indicted defendants and the possible impact of those differences on trial outcomes. Bonds possessed the wherewithal to assemble a team of leading defense attorneys, from different law firms and with complementary skills. The vast majority of indicted defendants, in contrast, cannot afford a "team" of lawyers. In fact, according to statistics provided by Department of Justice in 2000, 66 percent of federal felony defendants are represented by court-appointed counsel. Also, and less important, the 90 percent conviction rate is for all crimes; the federal government's success rate in perjury trials is slightly lower, at about 85 percent. . . .

* * *

When will Bonds be sentenced and how long will he be sentenced?

First, the defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so, as she would have to conclude that the jury was unreasonable in finding Bonds guilty.

Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.

During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.

Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.

Even if "only sentenced" to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.

If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.

* * *

To read the rest, click here.

Academics and Practitioners Ask Dept. of Justice to Investigate the BCS

The Wall Street Journal is reporting that a group of 21 law and economics professors and practitioners have submitted a letter to the United States Department of Justice, urging the DoJ to launch a formal antitrust investigation of the Bowl Championship Series. The letter (which is available here) argues that the BCS violates antitrust law both by unfairly restricting schools in the so-called non-automatically qualifying conferences from competing in the BCS National Championship Game and other BCS sponsored bowl games, as well as by disproportionately distributing its revenue in favor of the six automatically qualifying conferences. Signatories to the letter include economists Andrew Zimbalist (Smith College) and Richard Thaler (Univ. of Chicago), as well as law professors Roger Abrams (Northeastern Univ.) and Raymond Yasser (Univ. of Tulsa).

For additional discussion of the antitrust issues surrounding the BCS, check out my article "Antitrust & The Bowl Championship Series," and Michael McCann's "Antitrust, Governance, and Postseason College Football."

Division by Multiplication: Illinois Once Again Heats up the Public v. Private Debate in HS Sports

In 2005, the Illinois High School Association (the “IHSA”), which governs both public and private high school sports in Illinois, implemented an enrollment multiplier that requires actual enrollments of non-boundaried schools be multiplied by 1.65 in determination of classification for athletics competition. This multiplier pits smaller private schools against much larger public schools, the effectiveness of which has been hotly debated, in Illinois and other states throughout the country that have implemented mechanisms like a multiplier in an effort bring the number of state championships won by private schools more in line with their smaller numbers relative to public schools.

I wrote a law review article on the subject in 2009 evaluating enrollment multipliers in high school sports entitled Prep Plus: Evaluating the Motivations for and Effects of Enrollment Multipliers and Other Measures in High School Sports¸ 10 Tex. Rev. Ent. & Sports L. 1 (2008). I have also written about the topic in this space back in 2006.

The multiplier has been in effect in Illinois for five years now, and last week, Illinois State Representative Michael Connelly of the Illinois House of Representatives has reignited the bitter debate over the IHSA’s use of an enrollment multiplier for high school athletics competition. Representative Connelly has proposed an Amendment to House Bill 2392, which forbids the use of multiplier or multiplier-like devices in the determination of classification for athletics competition. The amendment has gained twenty-five co-sponsors thus far. The amendment requires that competition classes be established based solely upon actual enrollments of boys and girls for respective sports (e.g. boys’ enrollment determines football class). An identical form of the bill is making its way through the Illinois Senate in the form of Amendment to Senate Bill 624.

Historically, both proponents and opponents of the enrollment multiplier have sought a level playing field, but the arguments are strikingly adverse. Proponents of the multiplier denote that because parochial, private, charter and magnet schools are not bound by pre-determined school districts, these non-boundaried schools draw from a larger pool of students, and, as a result, gain a competitive advantage. Opponents argue that enrollment multipliers create unfair “David vs. Goliath” matchups that are inherently prejudicial.

The arguments being advanced in Illinois this time around are essentially the same. In a letter directed to high school principals, the Executive Director for the IHSA, Dr. Marty Hickman, stressed that a number of non-boundaried schools have won championships since the implementation of the multiplier. Thus if the goal of the multiplier was to lessen the amount of championships won by non-boundaries schools, thereby bringing the numbers of non-boundaried schools winning championships more in line with the proportion of non-boundaried schools in the IHSA, Dr. Hickman is admitting that the multiplier has failed.

Dr. Hickman also urged opposition to the Amendment on the basis that it usurps principals’ governance and oversight power of the operations of the Association. The IHSA, as the governing body for high school athletics in Illinois, clearly sides with public institutions here.

Representative Connelly and his co-sponsors will argue that Dr. Hickman’s contentions ignore the other end of the spectrum. While it is true that large parochial schools enjoy significant athletic success in Illinois, smaller private institutions with no history of athletic prowess are often forced to compete against public school powerhouses, leading to lopsided results that benefit no one. Also, the fact that large private schools are still achieving exemplary results indicates that the multiplier is disproportionately affecting the schools with small student bodies and even smaller budgets.

The Amendment was proposed by Representative Connelly on April 1, 2011 and has yet to be debated by the General Assembly. The rhetoric already emanated suggests that it will be furiously contested. With staunch bipartisan support on both sides of the fence, it will be interesting to see if this proposed legislation will be implemented.

Tuesday, April 12, 2011

Sports Lawyers Association and Sullivan and Worcester Panel: Boom Goes the Dynamite!

I'm looking forward to speaking on this Sports Lawyers Association and Sullivan & Worcester panel in Boston on Thursday, April 28,2011 -- you are interested in attending, please RSVP.

The Sports Lawyers Association and Sullivan & Worcester LLP present

Boom Goes The Dynamite! Top Sports Transactions of 2010
Thursday, April 28, 2011
Program: 5:30 pm - 6:30 pm
Reception: 6:30 pm- 7:30 pm
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
MAP

The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC.

Speakers:


Please RSVP by April 22. If you have questions or need more information, please contact Katie Potter at 617.338.2923 or kpotter@sandw.com.

Monday, April 11, 2011