Tuesday, November 12, 2013

Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito?

The following post is written by Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar.  Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team.  We're pleased to have Joe's contribution.  He also authored the Sports Law Blog post titled What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

* * * 

It was interesting to watch NFLPA head DeMaurice Smith tell ESPN’s Stuart Scott before Monday night’s Dolphins-Buccaneers game that the Players Association could adequately represent the interests of both Jonathan Martin and Richie Incognito without a conflict of interest. NFL Commissioner Roger Goodell likes to wield the league’s Personal Conduct policy like the sword of Damocles and based on the limited information that has been made public to date, both players could be subject to discipline. Under general labor law principles, it is conceivable that the NFLPA could claim to represent both players. As the designated bargaining unit for the players, the union has the duty of fair representation. A breach of the duty of fair representation occurs when a union’s conduct toward a member is arbitrary, discriminatory, or in bad faith. I am assuming that this is the lens through which the NFLPA is viewing their role.

However, DeMaurice Smith is a lawyer, and I am guessing that many at the NFLPA are lawyers. As such, their conduct should be governed by conflict rules consistent with Model Rule of Professional Conduct 1.7, which states, “… a lawyer shall not represent a client if the representation involves a conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” As this matter progresses, how could both players be assured that the union could aggressively pursue a course of action to seek justice for an aggrieved player, yet vigorously defend the interests of an accused player during an investigation, or a punished player through the appeals process? Even with the consent of both Martin and Incognito, I do not see how the NFLPA jumps over the hurdle in the exception provision of the Rule that permits representation if, “ the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal…”

One possible solution would be to have the NFLPA appoint an experienced union leader from another sport to represent the interest of either Martin or Incognito in the very limited scope of matters pertaining to or arising out of the events in this case. Don Fehr would seem to be the likely choice. This way, the NFLPA avoids any hint of bias and both Jonathan Martin and Richie Incognito are assured that they will receive the full scope of the rights and benefits they are entitled to under their Collective Bargaining Agreement.

Joseph Kohm, Jr.

Monday, November 11, 2013

Would You Join a College Players' Association?

The legal aftermath of Judge Wilken's certification order in O'Bannon v. NCAA takes a new twist with formation efforts for a college players' trade association.  Here's my take for Sports Illustrated.

Sunday, November 10, 2013

Unusual financial planning tips you haven’t thought about!

When people hear the term ‘financial planning’, they start thinking about filing income tax returns, sitting down with calculators to perform advanced computing tasks, and reading the offer documents of every financial planning firm. But after you read this, you will realize that you can plan out your finances in the simplest of manners by making minor adjustments in your day to day living! Let us look at some unusual ways in which you can bring your financial life on track –

·        Use public transit: Petroleum prices are rising at a massive rate. Comparatively, public transport such as local trains, metro, and AC buses are cheaper. You can save several thousands of bucks every month if you just cut down on your car traveling and instead choose to travel by public transport.

·         Use free calling apps: Cell phone bills constitute one of the major spending every month. These days, smart phones offer apps that can totally cut down your phone bills. You can make free calls, as well as text without paying a single penny. All you need to spend on is a basic internet plan! You can save several thousands of rupees per month by cutting down on your phone expenditure.

·         Replace old lights and other electrical appliances: Old lighting fixtures and appliances such as air conditioner and geyser can consume a lot of electricity. It is advisable to replace them than to continue using them. While some people often wonder that it is not worth it to spend money on new appliances, it is definitely cost effective in the long run.

·        Create alarms: There are various types of alarms that you should set namely credit card payment, phone bill payment, electricity bill payment etc. This will help you to pay the bills on time and avoid hefty penalties. Paying penalties is a totally unnecessary habit and shouldn't be inculcated. One would rather donate that money than to give it as a late fee!

While these are some homely remedies to save money and improve your financial health, if you want to invest money then you should invest with financial planning companies

Partial Certification in O'Bannon v. NCAA

I have a new article for SI.com on Judge Wilken partially certifying the class action lawsuit brought by Ed O'Bannon, Sam Keller and other former and current student-athletes.  Short take: her order is great news for future and current student-athletes, not so great news for former ones.

Thursday, November 7, 2013

ASU 4th Annual Conference on Sports and Entertainment Law

I am looking forward to returning to speak at The Sandra Day O’Connor College of Law at Arizona State University for its 4th Annual Conference on Sports and Entertainment Law this Saturday, November 9th, 2013 from 9am – 4pm, followed by a reception for all attendees and speakers.  The Conference will take place at Arizona State University Memorial Union, Arizona Ballroom 221 (2nd Floor), 1290 S. Normal Ave., Tempe, AZ, 85287.  CLE credit is available for attorneys, including Ethics credit.  The Keynote Presentation will be given by Bud Selig, the Commissioner for Major League Baseball. 

Panel topics include:
  • Agency –Sports and Entertainment Joint Panel
  • Athlete Personal Website and Social Media Issues
  • Music Rights and Copyright
  • Licensing, Sponsorship, and Endorsement Agreements
    –with a mock negotiation
  • Major League Baseball and Olympic Steroid and Drug Testing

Panelists include:
  • Caleb Jay (Associate General Counsel, Arizona Diamondbacks)
  • Gary Marchant (Faculty Director & Faculty Fellow, Center for Law, Science & Innovation)
  • Steve Adelman, Venue Safety Expert, Adelman Law Group, PLLC
  • Scott Peters, Safe Football LLC, former NFL and ASU Athlete
·       Gregg Goldman, 29th Drive
  • Rodney Smith (Distinguished Professor of Law & Director, Center for Sports Law & Policy, Thomas Jefferson School of Law)
  • Marc Edelman (Associate Professor of Law at the Zicklin School of Business, Baruch College, City University of New York & Professional Sports and the Law, Fordham University School of Law)
  • James M. Marovich (The Marovich Law Firm, PLC)
  • Mark Conad (Associate Professor & Acting Area Chair for Law & Ethics, Director of the Sports Business Specialization, Fordham University)
  • Travis Leach (Partner, Ballard Spahr LLP)
  • Timothy Liam Epstein (Partner/Chair, Sports Law Group at SmithAmundsen; and Adjunct Prof. of Law at Loyola University Chicago School of Law)
  • Jason Belzer (Founder, Global Athlete Management Enterprises, Inc. & Writer for Forbes)
  • Sam Renaut (Certified NFL Player Agent)
  • Stephen Webb (Executive Director of Athletic Compliance, Arizona State University Sun Devil Athletics)
  • Jaia Thomas (Sports & Entertainment Attorney, The Law Office of Jaia Thomas)
  • Connie Mableson (Intellectual Property, Business, & Entertainment, Mableson Law Group, PLLC)
  • Elissa Hecker (Entertainment & Business Attorney, The Law Office of Elissa D. Hecker)
  • Debbie Spander (Sports & Emerging Media Attorney, Spander Digital Sports & Entertainment)
  • Stephen Nebgen (Entertainment & Intellectual Property Attorney, The Law Offices of Stephen Wade Nebgen, PLLC)
  • Jay Raftery (Raftery Law Firm, J.L. Raftery, PC)
  • Don Gibson (Founder, Kavi Sports & Entertainment)

Its always a great conference, and looking forward to having fellow Sports Law Blog contributors joining me this year.

Register at this link

Confronting Locker Room Bullying with Physical Violence

An interesting development in Incognito-gate yesterday, with stories that Miami Dolphins GM Jeff Ireland told Jonathan Martin's agent that Martin should punch his tormentor in the face.

One downside of punching someone in the head, of course, is that one has committed a tort: battery.  Can a person use force to defend themselves from bullying?  In my article Defense Against Outrage, I explore this very question.  I ask whether, if the bully's conduct rises to the level of extreme or outrageous conduct, a person can use physical force in "self-defense" against the emotional damage bullying can do.

Some have argued that Richie Incognito's bullying, pervasive and offensive, would rise to the level of IIED.  Would that have created a privilege to use physical violence in self-defense?

Tuesday, October 29, 2013

It pays to hire a financial planner!

We often try to dabble in fields that don’t concern us, and eventually accept that we’re terrible at it! Same is the case with financial management. We often think that it is our money, and therefore we should manage it. Rather, we think that since it is our money, no one apart from us will know how to manage it. There’s some sort of skepticism as well when you go to hire a financial planner. After all, what if he slips, and all our hard earned money goes down the drain?

Well, such concerns are pretty natural. Since there’s a lot of money involved and possibly at risk, one is bound to feel nervous. However, you will soon come to terms with the fact that only a financial consultant, also known as a financial planner, is the best person to trust your money with. They are highly qualified, well experienced, and possess educational degrees in the field of finance. In fact, while hiring them, you should look at these qualities. If they don’t possess a degree, you shouldn’t hire them. Try to ensure that you are getting hold of a CFP or a CFA! 

You can contact financial planning companies in your city and ask them to send over a financial planner or a consultant. While a financial planner noida will plan out your financial roadmap properly and look after your investments, a financial consultant might just offer you some advice. It is totally up to you which one would you like to hire. Typically, they will come and give a short presentation mentioning about the key benefits they can offer you, whilst also throwing some light on their significant achievements, major past and present clientele. 

A lot of people wonder how much does it cost to hire a financial advisor. Different financial advisors have different modes of compensation. While some work on a flat monthly fee, others charge commission. There might be a combination of both the compensation modes too. For detailed information, you could check online. They will mention some sort of estimated pricing for all those interested in hiring financial advisors.

Monday, October 28, 2013

Sports Illustrated and UNH Law Town Hall on O'Bannon v. NCAA and the Future of College Sports

The University of New Hampshire School of Law and Sports Illustrated proudly invite you to attend A Town Hall on O'Bannon v. NCAA on Tuesday, November 5th from 6 p.m. to 7:30 p.m. in Room 282, followed by a reception in the Franklin Pierce Center for Intellectual Property.

The Town Hall will examine how a class action lawsuit against the NCAA could radically change college sports as we know it.  Through legal arguments sounding in intellectual property and antitrust, Ed O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures.  The Town Hall will also consider related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act.  Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.

The Town Hall will feature some of the most influential and insightful people in college sports:


B.J. Schecter

B.J. Schecter, Executive Editor of Sports Illustrated and SI.com. Schecter is a sports journalism professor at CUNY Graduate School of Journalism and Columbia University Graduate School of Journalism.


Charles Grantham

Charles Grantham, former Executive Director of the National Basketball Players Association (NBPA). Grantham was an architect of the revenue-sharing business model while protecting the NBA’s greatest asset—its players. Currently, he is a sports business consultant and an Adjunct Professor at Seton Hall University’s Stillman School of Business and New York University where he teaches at the graduate level on collective bargaining and dispute resolution in professional sports.

Professor Michael McCann

Professor Michael McCann, Director of the Sports and Entertainment Law Institute and a tenured professor at UNH Law, teaching Pro Sports Law, Amateur Sports Law, andSales.  Legal Analyst and Writer at Sports Illustrated & SI.com.

Alan Milstein

Alan Milstein, Shareholder at Sherman Silverstein in New Jersey, Milstein is one of the nation's leading litigators in both sports and bioethics.  Milstein has litigated on behalf of Allen Iverson, Carmelo Anthony, Eddy Curry, Allen Houston, Maurice Clarett & other sports figures.

Professor Alexandra Roberts

Professor Alexandra Roberts, Executive Director of UNH Law's Franklin Pierce Center for Intellectual Property and a professor of entertainment law and trademark law. Roberts is a former intellectual property litigator at Ropes & Gray LLP in Boston and New York.

Marty Scarano

Marty Scarano, University of New Hampshire Athletic Director in his 14th season, National Association of College Directors of Athletics "AD of the Year" in 2007.  During Scarano’s tenure, UNH teams have made 44 NCAA postseason appearances and captured 14 conference titles. Those teams have also achieved one of the best graduation rates among NCAA members.

Sonny Vaccaro

Sonny Vaccaro, Leading advocate for rights of college athletes and an unpaid adviser to Ed O'Bannon's legal team. Founding Chairman of The Roundball Classic and ABCD camp.  While a marketing executive at Nike, Vaccaro signed Michael Jordan to his first major endorsement package.

Come for the enthusiastic discussion and debate; stay for the hors d'Ĺ“uvre, beverages, and networking opportunities. We hope to see you there!  Please RSVP to ip.center@law.unh.edu.

* UNH Law is about an hour drive from Boston and directions can be found here.

** Portions of the town hall will be aired on SI Now, Sports Illustrated's Daily Talk Show.  Other portions will be shown through video provided by UNH Law's Sports and Entertainment Law Institute.

Mike Pouncey Subpoena

A potentially major development in the Aaron Hernandez murder case occurred last night, when Dolphins center Mike Pouncey was served with a grand jury subpoena after the Dolphins played at the Patriots.  The grand jury is investigating a potential scheme involving the same of guns and it may be connected to Hernandez.  On SI.com last night, Pete Thamel and Greg Bedard broke the story and I have a legal analysis this morning.

Sunday, October 27, 2013

Procompetitive Effects and the Ban on Paying College Athletes

USA Today's Steve Berkowitz wrote on Friday that Judge Wilken denied a motion to dismiss in the O'Bannon litigation.  Here is an excerpt from Berkowitz's article in which he addresses Judge Wilken's remarks concerning whether a ban on athlete pay serves a procompetitive purpose:
Meanwhile, the judge also raised questions about the applicability to this case of the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that "in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like."
The NCAA has relied upon this language in defending its amateurism system and has successfully used it [in] many prior legal cases.
However, Wilken wrote in Friday's ruling that the case "does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses.
"Although it is possible that the NCAA's ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, Plaintiffs' plausible allegations to the contrary must be accepted as true at the pleading stage."
Wilken also wrote that the Supreme Court "never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason nor did it cite any fact findings indicating that this ban is the type of restraint is 'essential if the (NCAA's) product is to be available at all'. More importantly, the Court never examined whether or not the ban on student-athlete compensation actually had a procompetitive effect on the college sports market."
Berkowitz's piece raises a really interesting question.  In sports antitrust cases, the issue concerning procompetitive effects essentially revolves around competitive balance.  Why is there an assumption that a ban on athlete pay increases consumer demand for college sports and/or fosters competitive balance?  

First, while I do believe there are many consumers who do not want athletes to be paid, I have serious doubts whether there is any correlation between consumer demand and athlete pay (or lack thereof).  For starters, the consumer knows there are lots of athletes in big-time college sports who are paid under the table from boosters and various other third parties (unless of course one believes that the number of athletes getting paid is limited to only those who actually get caught).  But more importantly, if the rules were changed to permit athletes to be compensated for their names and images, I don't believe fans and alumni would take the position, "I'm not watching my team play this weekend because I read somewhere that somebody paid our defensive end $1,000 this week for signing some memorabilia."  

But who cares what I think and let's assume for sake of argument that some consumers would not be interested in the product if the athletes were paid more than they are currently.  How much relevance should it have for antitrust purposes?  Is a producer insulated from antitrust liability simply by calling its product "unpaid labor"?  If all of the law firms in the U.S. agreed to restrict the pay of their associates (in the first four years before making partner) to law school tuition reimbursement, would the agreement pass antitrust scrutiny if they marketed their product to the consumer as "cheap associate labor"?  Most would not dispute that a team salary cap violates antitrust law but is the answer different if a sports league calls its product "salary capped labor"?  If the NFL could show that it is losing consumers because they believe the athletes are grossly overpaid, would/should that have any relevance for antitrust purposes if the league put an individual cap on each player's salary?  

Second, on the issue of competitive balance, the irony is that college football arguably has much less competitive balance than professional football where the athletes are paid competitive wages.  Unlike professional football, college football has "dynasties" and "powerhouses".  For a college sport that supposedly has competitive balance, why are Alabama's football fans leaving so many empty seats in the stadium

Saturday, October 26, 2013

Baseball rules, again

One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman (video embedded). Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).

Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is the base he would have been entitled to without the obstruction.

Here is video of the umpires' press conference, which can best be described as a judicial opinion issued from the bench, explaining a decision. A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.

As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so.

Anyway, obstruction now will be the word of the rest of this Series.

Schooled: The Price of College Sports

Need something to do before you head out Trick-or-Treating on Halloween?  Swing by Harvard Law Schools as The Committee on Sports & Entertainment Law hosts a panel discussion about the business of college sports.

Thursday, October 24, 2013

Suffolk Law School Panel on College Athletics

Suffolk Law School will be hosting a panel discussion on October 24th titled "Compensation, Commercialization, and Labor Issues in NCAA Division I Sports."  Panelists will discuss the fact that big time college sports = big business.  Experts will discuss a myriad of issues facing the NCAA including compensation for student-athletes, the O'Bannon lawsuit involving EA Sports, and the investigation investigation into Heisman Trophy winner Johnny Manziel's alleged acceptance of money for autographed memorabilia.

Scheduled speakers include:

* Moderator: Brian McLaughlin, Vice President, Symmetry
* Jay W. Fee, Of Counsel, Nelson Mullins Riley & Scarborough, LLP; Adjunct Law Faculty, Suffolk University Law School
* Nancy H. Lyons, Senior Associate Athletic Director for Compliance/SWA, Boston University
* Lisa P. Masteralexis, Head of the Mark H. McCormack Department of Sport Management, Isenberg School of Management at University of Massachusetts, Amherst.
* Warren K. Zola, Assistant Dean for Graduate Programs; Adjunct Faculty, Carroll School of Management, Boston College

It's not to late to attend by registering here.

Thursday, October 17, 2013

Importance of a child insurance plan for Indian parents

Becoming a parent is always a special moment but with it comes the responsibility of bringing him up to be a successful man and ensuring that his/her future is secured. For Indian parents, the biggest commitment is perhaps being able to provide the child with the best education. However, education today is not spared from the rising costs and inflation.

It is even believed sometimes that the first impact of inflation falls upon education of a child. Therefore, parents need to start planning as early as possible such that no sacrifice needs to be made when it concerns the child’s intellectual future. As of today, a child insurance plan is probably the best weapon in this regard. There are even several other advantages that child insurance comes with in India.

·         Life insurance policies for children are more affordable than any other life insurance policy
·         Investment in children insurance plan is similar to an ULIP investment. The only difference is that the investors are the parents while the final beneficiary is the child when he/she grows up
·         In case the parent dies, a lump sum amount is given to the family but the child insurance plan doesn’t terminate itself. It acts as a corpus that remains intact till its exact maturity date
·         Te returns on insurance policies for children are tax-free and can save you a lot

Every Indian insurance company today has a child life insurance plan. However, differences in the conditions still exist between plans and it is necessary to do your part of research for seeking out the best investment.

Another thing that seems a little confusing in arriving at is the exact amount that should be contributed every month as premium towards your child’s policy. 

In this case a backward estimate is necessary but this calculation is better done by a professional as it involves several other factors like future market conditions, educational expenses, emergencies, etc. realizing later in life that the premium was less when  you could have contributed more wouldn’t solve the case. So, planning ahead in advance is the only option.

Wednesday, October 16, 2013

Olympic speech at 45

Today (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.

Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.

In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.