Wednesday, May 30, 2012
But I now want to pose a different question: Why did Vilma sue only Goodell and not the NFL on a respondeat superior theory? The answer depends on two questions that I hope people can answer.
One possibility is that the NFL is a party to the CBA (Goodell is not), so suing the other contracting party makes the possible labor preemption more obvious. Is that possible?
A second possibility is that Vilma wants to be in federal court and was worried that the NFL might somehow destroy complete diversity and thus federal jurisdiction. That explanation depends on my second question: What is the precise organizational status of the National Football League? Is that an independent entity and, if so, what is its form and make-up? Or is it owned by some other entity and, if so, what is the form and make-up of that entity? While the league has its offices in New York, that only matters if it is a corporation; if it is a partnership or a limited liability company, its citizenship is based on the citizenship of all of its partners or members. And if some of those are from Florida (Vilma's home state), this case cannot be in federal court. So who, exactly, does Goodell work for and what is its nature and structure?
Update: Tom's comment gets us part way there, but only part way. A partnership's citizenship is determined by the citizenship of every partner. So we need to know about all the general and limited partner of Miami Dolphins Ltd. The general partner is "South Florida Football Associates LLC," which is headquartered in New York. Its managing member is Stephen Ross. Is Ross a Florida citizen? According to Wikipedia, he resides in New York. Of course, there also are the famous limited partners that Ross brought on, such as Gloria and Emilio Estefan, Marc Anthony, and the Williams sisters. Gloria for sure is a Florida citizen. Not sure if she and the others are partners in the partnership or members of the LLC. But either way, they make Miami Dolphins Ltd. a Florida citizen which makes the NFL a Florida citizen. So suing the NFL probably would have destroyed diversity and Vilma wanted to be in federal court. Of course, that is surprising, given the "local bias" rationales underlying diversity jurisdiction. I would have expected Vilma to want to be in state court in Louisiana.
Tuesday, May 29, 2012
The NFL likely worries that if a judge orders pretrial discovery, the league would have to reveal its informants, which could undermine the NFL's investigation and provoke other suspended players and coaches to challenge the commissioner. Keep in mind, informants talking to league investigators are not under oath, and can lie—including to protect themselves—without legal repercussion.To read the rest, click here.
For analysis of the Supreme Court's decision in Federal Baseball, check out Kevin McDonald's 1998 article from the Journal of Supreme Court History, "Antitrust and Baseball: Stealing Holmes," as well as Justice Alito's 2008 commentary considering the case (also published in the Journal of Supreme Court History), along with the thoughts of Sports Law Blog's Ed Edmonds. Meanwhile, for more on the Federal League generally, be sure to read Daniel Levitt's excellent, recently-released history, The Battle that Forged Modern Baseball: The Federal League Challenge and Its Legacy.
Monday, May 28, 2012
- Should parents be able to"select" certain genes for their children so their kids have the greatest chance of becoming pro athletes?
- Should athletes be able to undergo gene therapy for rehabilitation of injury or enhancement of natural ability (was Bartolo Colon's stem cell treatment a sign of things to come)?
- Should bioethics matters be regulated by collective bargaining agreements, or should federal or state governments not allow players' associations and owners to agree to certain possibilities?
I'll be in attendance and am looking forward to hearing from some of best bioethicists around. Here is more information - hope you too consider attending:
Bioethics: A Legal, Medical and Theological Perspective
Hear from a wide range of experts
Our panelists will include doctors, clergy, academics and lawyers. Explore with them as they reflect, analyze and dialogue about:
- Bioethics – its meaning and sources
- Key documents that underlie bioethical decision-making
- Doctor/patient relationships and quality of care
- Public health issues and the role of physicians in state actions
- Reproductive rights and issues
- Organ transplants
- Death and dying
- Human subject research
- Eugenics, cloning and embryonic stem cell research
Come to investigate the current ethical issues
If you’re coming for answers, then this may not be the seminar for you. But if you’re coming to investigate current ethical issues and probe into the questions and dilemmas they pose for you, your clients, families, hospitals, governments and civilizations, then you’ll enjoy this program.
Leave with an understanding of why even well-informed people reasonably disagree about how to apply bioethics
Course Planner: Alan C. Milstein, Esq.
|Location||Start Time||End Time|| |
| ||Mon, 12:30P |
Jul 23, 2012
|Mon, 3:45P |
Jul 23, 2012
Saturday, May 26, 2012
Michael McCann has already shared his thoughts on the lawsuit in his recent column for Sports Illustrated. However, having written two law review articles on Major League Baseball's history of collusion (see here and here), I wanted to add a few points of importance:
1. The Recent Football Case is a Labor Case, Not an Antitrust Case: Generally when we think about collusion in professional sports, we think about violations of Section 1 of the Sherman Act, which states that "[e]very contract, combination ... or conspiracy, in the restraint of trade or commerce ... is declared to be illegal." However, the recent lawsuit filed by the NFL Players Association is not based on Section 1 of the Sherman Act. Rather, it is filed under labor law, and argues that the NFL teams violated three distinct provisions of their last collective bargaining agreement that relate specifically to disallowing collusion. These provisions include:
- Article XIII(a) (Anti-Collusion): "No Club, its employees, or agents, shall enter into any agreement express or implied, with the NFL or any other Club .... to restrict or limit individual Club decision-making [with regards to] whether or not to negotiate with a player."
- Article XV, Sect. 2: "Neither the parties hereto, nor any Club or player shall enter into an agreement .... to serve the purpose of defeating or circumventing the intention of the parties reflected by [aspects of the agreement related to] Total Revenues, Salary Cap, Entering Player Pool, and Minimum Team Salary ..."
- Article XIX, Sect. 6: "Defendants ... each pledge their best efforts and cooperation ... to implement the provisions of the [collective bargaining agreement] in a manner consistent with good faith and fair dealing."
3. Nevertheless, the NFLPA Claims are Not Identical to Baseball Collusion in the 1980s: Yet, there are at least three important differences between the Football Collusion claims filed this week and the Baseball claims from the 1980s. First, the baseball cases alleged salary suppression on the individual level, whereas the NFL Players Association alleges salary suppression on the team-wide level. In addition, in the baseball cases of the 1980s all teams to some extent participated in the conspiracy (the only team in doubt was the New York Yankees that made a contract offer to White Sox catcher Carlton Fisk); whereas the National Football Players Association alleges in its claim that "the Redskins, Cowboys, Raiders and Saints .... refused, at least to some extent to abide by their collusive conspiracy." Finally, whereas the Major League Baseball collusion cases were decided upon by an arbitrator, the National Football League Players Association has filed its claim in federal court.
4. For the NFL Players, Proving a Conspiracy will be the Biggest Challenge: Most likely, the most difficult part of this case for the NFLPA will be proving that there really was a conspiracy among the NFL teams to enforce a secret salary cap. Presuming a court adopts antitrust law's standard of proving an agreement (even though this is technically not an antitrust case), the NFL Players would have to show sufficient facts to exclude the possibility that defendants were acting independently or in a consciously parallel manner. To prove such an agreement, the NFL Players would not necessarily need a "smoking gun" memo, such as the one that Major League Baseball's Director of the Player Relations Leland S. MacPhail distributed during baseball's 1985 off-season that encouraged teams to “exercise more self-discipline in making their operating decisions and to resist the temptation to give in to the unreasonable demands of ... players." But the NFL Players would still need evidence -- either through documents, testimony or evidence of radical departure from past behavior -- that the NFL teams (or at least 28 of the NFL teams) had a "meeting of the minds" or a "unity of purpose" in refusing to exceed a purported salary cap.
5. Mike Florio's Use of a Confidential Source in his March 12 Article Might Cause Chaos: Finally, although most evidence of collusion emerges in the discovery process of a claim, the NFL Players' initial complaint cites three public statements that they believe help to show collusion. Two of these statements are made by NY Giants owner John Mara and refer to the lack of 2010 salary cap as a "loophole" that has come up several times in owners' meetings. Meanwhile, the third statement comes from Mike Florio's Pro Football Talk website (owned by NBC Sports) in which he cites "a source with knowledge of the situation" as saying that NFL teams were told “at least six times” during ownership meetings that taking advantage of the lack of the salary cap would lead to “serious consequences.” The nature of Florio's source here is critically important; however, he refuses to divulge his source's identity. If the case moves forward, I would fully expect both Florio and NBC Sports to receive a subpoena from the NFL Players Association seeking disclosure of this secret source.
As the White v. National Football League case progresses, I will continue to share my thoughts on Sports Law Blog. You can also follow me via Twitter at MarcEdelman. (Note: this post has been cross-posted on Above the Law).
Friday, May 25, 2012
Wednesday, May 23, 2012
Tuesday, May 22, 2012
Monday, May 21, 2012
Saturday, May 19, 2012
You are invited to the 2nd Annual Sports Law for Rookies and Veterans on June 14, 2012 at the Minneapolis Club in Minneapolis. This premier sports law seminar includes the following confirmed speakers: NFL sports agents Drew and Jason Rosenhaus, Minnesota Vikings CAO and General Counsel Kevin Warren, Minnesota Timberwolves CMO Ted Johnson, former Minnesota Wild GM and current hockey agent Tom Lynn, MLB agent Charisse Dash, the Honorable David Doty, who presided over every major sports labor dispute over the last 25 years, numerous inside and outside sports lawyers, media professionals, law professors and sport franchise executives. In addition, Ross Bernstein, best selling author of over 50 sports books, will give his signature presentation on "The Champion’s Code." The current agenda with confirmed speakers is at http://www.hinshawlaw.com/2nd-
This interesting and compelling seminar will be submitted for 8 continuing legal education credits in the jurisdiction of all attendees, and includes 1 ethics credit and 1 elimination of bias (diversity) credit. The cost of the seminar is only $199.00 and includes breakfast and lunch. Employees of professional sports franchises or university athletic departments can attend without charge. Anyone who works directly or indirectly with sports teams or professionals or is interested in sports law should attend this event. You should be able to follow the attached link on the PDF to sign up or you can follow the link on the event page of our firm website at http://www.hinshawlaw.com/2nd-
Please direct any registration issues to Marie Pocock at email@example.com and contact me or Steve Silton at firstname.lastname@example.org with any questions regarding the seminar.
Thursday, May 17, 2012
Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana, statements that Goodell intended and expected to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and Sports Illustrated in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were disseminated. The majority never really considered whether he knew or intended his statements would be published in Texas.
If Goodell does challenge jurisdiction, Vilma must overcome Clemens. A few distinctions leap out, suggesting there is jurisdiction here, accepting the facts in the complaint as true. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his statements were "directed" at Louisiana more than McNamee's were at Texas. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases, but also reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including their entering the forum state.
Still, it is another nice Civ Pro hypo jumping from the world of sport.
Here's an excerpt:
The league's best argument may be the simplest: truth is an absolute defense to defamation. The problem for the league in making such an argument is that, through the discovery process, it would likely have to disclose information it does not want to reveal. For instance, the league may have to divulge it's sources of information, including the identities of players and coaches who were informants. The backlash of such disclosures could be considerable. Moreover, much like the Mitchell Report has been criticized for relying on disreputable persons, expect similar critiques if the same proves true of the NFL's Bounty Report.
* * *
Wednesday, May 16, 2012
It is a rare event when one has the opportunity to use the phrase "decoder cards" in the title of an academic article. However, the facts of the so-called "Karen Murphy case" presented exactly that opportunity in a co-authored piece with Tassos Kaburakis and Johan Lindholm that was recently published by the Columbia Journal of European Law. The abstract is below (and available here):
October 4, 2011 marked a new era in global sports media rights. On this day, the Grand Chamber of the European Court of Justice (ECJ) delivered its judgment in FA Premier League et al. v. QC Leisure et al. & Murphy v. Media Protection Services Ltd (“Murphy”). Murphy decided upon the legality of a scheme whereby the holder of intellectual property rights to a sporting event licenses the right to broadcast the event on a national exclusivity basis.
The central players in the Murphy saga were: (i) the Football Association Premier League Ltd (“FAPL” or “Premier League”), the rights holder who, on behalf of football clubs playing in the Premier League, licensed the rights to broadcast Premier League matches to national broadcasters; (ii) two joint ventures, BSkyB Ltd. and ESPN (“Sky”) and NetMed Hellas SA and Multichoice Hellas SA (“NOVA”), who were the national broadcasters in the United Kingdom and Greece, respectively; (iii) Karen Murphy, a British national who purchased NOVA decoding equipment for personal viewing and subsequently used it to display Premier League matches in her pub in Southsea, England, at a significantly lower cost than a commercial subscription with Sky; and (iv) QC Leisure and AV Station, two British enterprises that arranged for the NOVA subscriptions and imported the decoding equipment, which was subsequently sold to Murphy and others.
The system of nationally exclusive broadcasting rights challenged in Murphy was supported by a combination of private and national measures. First, the typical agreement between the Premier League and a broadcaster contained provisions giving the broadcaster exclusive rights to broadcast the events in one of the EU Member States and requiring the broadcaster to take precautions to prevent individuals situated outside that Member State from accessing their broadcast. Second, in order to uphold the latter provision, the subsequent agreement between the broadcaster and its customers contained terms whereby the customer undertook that the decoding equipment would not be used to access the broadcast outside that Member State. Finally, general copyright law and a specific British statutory provision criminalizing the import, sale, and use of foreign decoding equipment procured through dishonest means further strengthened the enforceability and seeming validity of these contractual arrangements.
This licensing system was challenged in two British cases in which the plaintiffs alleged infringement. Ultimately, two divisions of the High Court of Justice of England and Wales referred a total of eighteen questions (excluding sub-questions) to the ECJ regarding the interpretation and application of various provisions under EU law. The eighteen questions boil down to three principal inquiries: I) Are Member States’ measures discouraging parallel import of broadcasting services compatible with the right of free movement of services protected by Article 56 of the Treaty on the Functioning of the European Union (“TFEU”)? (II) Are the agreements between the Premier League and broadcasters anticompetitive, contrary to Article 101 of the TFEU? (III) How are the several European Directives on intellectual property rights and, in particular, copyright law applied to such broadcasting rights, and to what extent is the proprietary content protected? This Article will address each of these three principal inquiries in order. Additionally, this Article will examine which elements of the licensing system heretofore are consistent with EU law, and analyze the likely ramifications for rights holders and future business strategies available to them.
Tuesday, May 15, 2012
New Sports Illustrated column: How will Roger Clemens lawyers go after Brian McNamee on Cross-Examination?
Here's an excerpt:
To advance these points, look for Clemens' attorneys to find contradictions in McNamee's testimony from his earlier statements. Even seemingly minor contradictions, such as in dates of events or names of non-essential persons present, will be exploited to frame McNamee as unreliable. They will also question why McNamee is the only person on Earth to have seen the highly-recognizable and attention-seizing Clemens take steroids and HGH. Also expect McNamee to be forced to explain his motivations for telling law enforcement authorities and Major League Baseball officials about his relationship with Clemens. Along those lines, McNamee will undoubtedly be asked about the proffer agreement he signed with law enforcement in 2006. The agreement ensured that McNamee would avoid prosecution so long as he revealed his knowledge about baseball players using steroids. Expect Clemens' lawyers to imply that McNamee, at risk of being prosecuted, had to make noteworthy revelations to authorities even if it meant stretching the truth.To read the rest, click here.
Monday, May 14, 2012
Friday, May 11, 2012
The lawsuit was filed by the same law firm (Pomerantz, Haudek, Grossman & Gross) that filed a similar class action antitrust suit against the NHL in March 2012 (Laumann v. NHL). Two of the three named plaintiffs in the NHL case (Fernanda Garber and Robert Silver) are among the four named plaintiffs in the MLB lawsuit.
Interestingly, the Garber suit does not name all 30 MLB teams as defendants, instead suing only the Chicago Cubs, Chicago White Sox, Colorado Rockies, New York Yankees, Oakland A's, Philadelphia Phillies, Pittsburgh Pirates, San Francisco Giants, and Seattle Mariners, along with the Office of the Commissioner, MLB Advanced Media, DirecTV, Comcast, and various RSNs. Notably, the suit does not name any of the Fox Sports RSNs as defendants, nor any of the teams whose games are primarily broadcast on the Fox Sports networks. Instead, the suit targets only those teams whose games are televised on an RSN owned by DirecTV or Comcast (the one exception being the Yankees, who own their own proprietary RSN, the YES network). It is not immediately clear why the attorneys limited their allegations only to DirecTV and Comcast affiliates, but it may have something to do with a desire to pursue damages from cable service providers based on the allegations that all cable consumers have been charged higher prices due to MLB's exclusive broadcast policies.
One major hurdle the plaintiffs will have to overcome in their suit against MLB, of course, is baseball's historic exemption from antitrust law. Following the Supreme Court's 1972 decision in Flood v. Kuhn, lower courts have been divided regarding how broadly the exemption applies. As I explained in a recent law review article, subsequent lower courts have generally adopted one of three approaches to the exemption: (i) holding that the exemption broadly shields the entire business of baseball, (ii) holding that the exemption shields only the reserve clause (the specific restraint at issue in Flood), or (iii) holding that the exemption shields baseball's "unique characteristics and needs."
In Postema v. National League, 799 F. Supp. 1475 (S.D.N.Y. 1992), the Southern District of New York adopted the latter approach, holding that baseball's exemption did not shield the league from a suit filed by a former umpire because “[a]nti-competitive conduct toward umpires is not an essential part of baseball.” Id. at 1489. Undoubtedly hoping to draw upon this precedent and the related line of cases, the complaint in Garber argues that MLB's TV policies do not "reflect anything unique to baseball" insofar as "they are essentially identical to those in other major sports." Complaint at Paragraph 8.
The plaintiffs also seek to avoid application of the antitrust exemption by citing to Henderson Broadcasting Corp. v. Houston Sports Ass’n, 541 F. Supp. 263 (S.D. Tex. 1982), a case in which the Southern District of Texas ruled that the exemption did not apply to a dispute involving the Houston Astros' local radio broadcasting agreements. Based on this precedent, the Garber plaintiffs argue that the "distribution of video presentation of baseball games is subject to the antitrust laws." Complaint at Paragraph 8.
It will be interesting to see how the Garber court handles the antitrust exemption issue. Personally, I believe the "unique characteristics and needs" standard -- drawing upon dicta in Flood -- is flawed, given that the Supreme Court did not itself apply any such standard in the Flood case. I have similarly argued that the Henderson decision is poorly reasoned in several respects. As a result, I believe that baseball's broadcasting activities are encompassed by the exemption. Nevertheless, the Postema and Henderson precedents could give the Garber court a potential basis for discarding baseball's antitrust exemption, if it is so inclined.
It will also be interesting to see if the Garber lawsuit finally motivates MLB to update its antiquated television blackout policies. The rules have been frequently criticized by baseball fans, and can lead to absurd outcomes such as fans in Iowa being unable to watch any game involving the Twins, Royals, White Sox, Brewers, Cubs, or Cardinals on either the MLB Extra Innings or MLB.tv packages, even though in many cases none of those teams' games are available from their local cable provider. MLB has reportedly been considering updating the rules for years, but has yet to act. Perhaps this threat to its cherished antitrust exemption, along with potential treble damages, will finally force the league to act.
Here's an excerpt:
A successful bid by the NFL to keep the case in federal court would “greatly expand preemption and federal question jurisdiction to a degree never contemplated by the legislature or our courts,” Duerson said.For a very good resource on the bevy of lawsuits filed by retired NFL players against the NFL -- the number of retired players who have sued now tops 2,000 -- be sure to check out NFL Concussion Litigation.
Sherman Silverstein LLP shareholder Alan C. Milstein, a sports law expert, predicted Monday that the court would send the suit back to state court. If the case is remanded, it would likely be the first of the concussion suits against the league to go to trial, he said, and could see the courtroom as early as the end of 2012.
“The question for the federal judge is really whether this is something governed by the CBA and is an employee-employer dispute, or whether it is separate and apart from that,” Milstein said.
The fact that the allegations are against the league, rather than the team that employed Duerson's father, could be the deciding factor, according to Milstein.
Thursday, May 10, 2012
Ken Belson of the New York Times has an extensive piece on the lawsuit, and I speak with him for his story.
Interestingly, Oremus rejects the idea that change can happen through lawsuits against individuals or even educational institutions. In his view, any change should
come not from the courts but from high-school athletic conferences, scholastic sports associations, and the NCAA. As the research rolls in, they need to take a hard look at the aspects of the game that inflict the most damage and implement rule changes accordingly. If football ends someday, it should only be because the powers that oversee the sport have tried everything to make it safe and determined that it can’t be done—not because lawsuits have spooked schools into giving up.This is a sharp reflection of the modern understanding of tort law, the courts, and the administrative state. The regulating institutions should take care of the problems--even if those institutions have vested interests in protecting what they are supposed to be regulating. And courts do not achieve justice or truth at the systemic level--they only play on people's fear to surrender and pay out windfalls to a few individuals.
Wednesday, May 9, 2012
Friday, May 4, 2012
Myth 3: The hearing cost millions of tax dollars.
Truth: Contrary to popular belief, Congress did not expend unusually high resources investigating Clemens or, for that matter, HGH, B-12 and other substances. In fact, the costs associated with the two February 2008 hearings were comparable with most 110th Congress hearings, some of which also concerned "nonessential" topics but nonetheless failed to attract the same level of media scrutiny and public scorn.
According to people involved in the February 2008 hearings, no outside staff or attorneys were hired and most of the work entailed receiving and distributing statements from health experts. Clemens and Andy Pettitte were also interviewed, under oath, by staff members and their statements were recorded and transcribed. The staff did not incur any travel expenses in conducting the interviews. Clemens also visited several members of Congress in their offices for short conversations.
To read the rest, click here.
Wednesday, May 2, 2012
Update: Josh Levin at Slate has similar thoughts.
One More Update: This, unfortunately, gives me a chance to link to NFL Concussion Litigation, a blog started by a 3L at UMKC Law School that has been tracking the various lawsuits that have been, and are being, filed against the NFL by former players.