Friday, May 31, 2013

D.C. Circuit Sides with Comcast in Dispute with Tennis Channel

This week's D.C. Circuit ruling siding with Comcast in its carriage dispute with Tennis Channel came as little surprise. It ruled that the Federal Communications Commission failed to justify its conclusion that the cable provider (known as a "multichannel video programmer distributor" in today's parlance) discriminated against the Tennis Channel (not owned by Comcast) by placing it in a more expensive tier than the Golf Channel and Versus (now the NBC Sports Network). The ruling is available here.

For cable services, the ruling will come as a big relief. The opinion concluded that the FCC's determination Comcast's disparate treatment of the Tennis Channel by tiering it in a more expensive package was not discriminatory under sec. 616 of the 1992 Cable Act, and rejected the Commission's factual basis for making that determination. Judge Williams, writing for the court, stated that the FCC failed to provide "adequate evidence" to bolster its claims of discrimination. He did not address the more fundamental argument made by Comcast -- that the statute, or at least its application, was a First Amendment violation of the free speech rights of the cable provider. Basically, the court found that there were valid reasons for placing the Golf Channel and Versus on a lower, cheaper and more widely distributed tier than Tennis Channel and that there was no evidence that this differentiation was based on the fact that Tennis Channel was not a part of Comcast. Additionally, there was no evidence presented that Comcast would gain any financial benefit by placing Tennis on that same tier of service as the others, noting that no expert witnesses, or written studies were provided. That lack of evidence of any potential financial game was crucial in the court's determination. So, the court essentially rejected the FCC's emphasis on the similarities of the programming on the Golf, Versus and Tennis Channels and the disparate treatment of them, without anything more.

There were two concurring opinions. Judge Edwards discussed procedural issues (not the focus here), but Judge Kavanaugh produced an analysis of sec. 616 in terms of antitrust jurisprudence, with a passing reference to First Amendment standards. As to the antitrust issue, he opined that sec. 616 violations should be based on the same standards of proof as antitrust claims involving vertical concentration because sec, 616(a)(3) requires that the FCC enact regulations that prevent the cable operators from discriminatory conduct which "unreasonably restrains" the ability of the unaffiliated service to fairly compete.  In so doing, he found that there was no per se violation and there was no evidence of undue market power on the part of Comcast (a point that is debatable, given the general monopoly nature of cable operators). Therefore such vertical restraints (as found with the connection between Comcast and Golf/Versus) was presumptively pro-competitive.

Judge Kavanaugh then pushes what I think is a speculative connection between antitrust the First Amendment principles. He states: "applying sec. 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court." Cases that generally applied an intermediate scrutiny test that has been upheld by the "monopolistic characteristics" of cable programmers and the need for access. I am not convinced at the connection and there is no specific mention of such a connection in Turner v. FCC,  512 U.S. 622 (1994) which upheld mandatory carriage requirements under an intermediate scrutiny test. He also that technological changes have weakened any undue market power of cable operators, inferring that the today, unlike the 1990s, cable regulations such as sec. 616 would be harder to justify today.

The majority did not wade into this territory, but nonetheless gave Comcast a big win. It would be more difficult for independent sports channels to provide discrimination, at least in the DC Circuit.

Wednesday, May 29, 2013

NFL Draft Heads to May

By pushing the NFL Draft back two weeks in 2014 to May 8th-10th, the league showed no favoritism to agents, prospective players, team personnel, or the fans--they all are negatively affected.

1. Agents

While no sympathy will be offered by the general public to agents, pushing the draft back extends the time during which they pick up expenses for their clients.  Traditionally, agents will absorb the costs of pre-draft training which will include combine prep, living expenses, travel, and an assortment of other "benefits."  Now, while powerhouse firms can easily assume the marginal additional expense, agents often spend between $10,000 and $20,000 on each client.

Obviously, for agents with fewer clients or alternative revenue streams, the additional weeks of "investment" in their clients becomes a burden.  Much like the summer of 2011 when the lockout extended the time during which agents covered their client's expenses, there was a clear distinction between what larger agencies were able to cover versus smaller firms or individual agents.

And, let's not pretend that poaching between agents doesn't occur.  This gives more time for agents to continue to recruit the clients of others.  [I won't even get into the role of runners and the impact that Jay-Z/Roc Nation could have during this period.]

2. Players

There is no real benefit to the potential draftable players, other than extended an already difficult time period.  Since the NFL is not changing the dates of the Combine, preparation for elite prospects will still start immediately after the bowl season.  There will still be a rush to sign with an agent, have them pick up training costs, and begin immediate preparation for the Combine.  These players will need to be in peak form for All-Star games, the Combine, perhaps for their school's Pro Days, and then there will still be another 6 weeks before the draft--more than enough time to slip, either physically or with a mistake.
And this extends the time that unsigned free agents have to patiently wait for teams to fortify their rosters with rookies (i.e. cheap labor) before they are able to resign with an NFL team.

3. NFL Personnel

Again, no one cares if a scout or assistant GM needs to go without sleep for another two weeks but this maneuver extends the time under which these individuals are under exorbitant amounts of pressure.  The extra two weeks provides no additional insight into a player's potential so there is no evaluative benefit to this additional time.

4. The Fans

Hey, look, another two weeks of your favorite draft prognosticator telling you who your favorite team will select in the 6th Round!  A colossal waste of time--unless you listen to Mike Mayock who, and I'm partial because he's a Boston College alum, is fantastic.

For the future, either the NFL Draft should revert back to April, or the League Year should also be pushed back--thereby moving the Combine, the start of free agency, and other calendar items. However, as it stands today, does anyone see any winners in this move?

Tuesday, May 28, 2013

New Sports Law Scholarship--Pt. 2

Recently published scholarship includes:
Ben Einbinder, What FINRA can learn from Major League Baseball, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 333 (2012)
Harry Epstein & Daniel Gandert, The Court’s yellow card for the United States Soccer Federation: a case for implied antitrust immunity, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)
David Falk, Note, Are professional sports leagues’ control over their member teams and owners in doubt?, 43 RUTGERS LAW JOURNAL 337 (2012)

Gabriel Feldman, Antitrust versus labor law in professional sports: balancing the scales after Brady v. NFL and Anthony v. NBA, 45 UC DAVIS LAW REVIEW 1221 (2012)

Heather M. Field, Throwing the red flag: challenging the NFL’s lessons for American business, 38 JOURNAL OF CORPATION LAW 381 (2013)

Nicholas Fram & T. Ward Frampton, A union of amateurs: a legal blueprint to reshape big-time college athletics, 60 BUFFALO LAW REVIEW 1003 (2012)

Nabeel Gadit, Note, An end to the NCAA’s exploitation of former student-athletes: how O’Bannon v. NCAA highlights the need for an inalienable reversionary interest in the right of publicity for former student-athletes, 30 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 347 (2012)

Matthew Gallagher, The changing face of the “sport of kings”: a brief history of thoroughbred horse racing in the United States, its recent decline, and the legal implications surrounding racing partnerships and syndicates in the current landscape, 19 SPORTS LAWYERS JOURNAL 275 (2012)

Robert M. Gallman, Comment, Enhancement or recovery? The scientific and legal paradox of performance-enhancing substances, 15 SMU SCIENCE & TECHNOLOGY LAW REVIEW495 (2012)

Ephraim Glatt, Defining “sport” under Title IX: cheerleading, Biediger v. Quinnipiac University, and the proper scope of agency deference, 19 SPORTS LAWYERS JOURNAL 297 (2012)

Samantha Glazer, Note, Sporting chance: litigating sexism out of the Olympic intersex policy, 20 JOURNAL OF LAW & POLICYY 545 (2012)

Robert A. Gottfried, Reasonable relocation: antitrust implications of restrictions on movement of professional sports teams, 19 SPORTS LAWYERS JOURNAL 109 (2012)

Jeremy P. Gove, Note, Three and out: the NFL’s concussion liability and how players can tackle the problem, 14 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 649 (2012)

Linda S. Greene, Head football coaches: ending the discourse of privilege, 2 WAKE FOREST JOURNAL OF LAW & POLICY115 (2012)

Nathaniel Grow, Decertifying players unions: lessons from the NFL and NBA lockouts of 2011, 15 VANDERBILT JOUNRNAL & TECHNOLOGY LAW 473 (2013)

Rockwell T. Gust IV, Comment, The California Workers’ Compensation Act: the death knell of NFL players’ “concussion” case?, 44 UNIVERSITY TOLEDO LAW LAW REVIEW 245 (2012)

David Haddock et al., League structure & stadium rent seeking—the role of antitrust revisited, 65 FLORIDA LAW REVIEW 1 (2013)

Courtney D. Hall, Comment, Fishing for all-stars in a time of global free agency: understanding FIFA eligibility rules and the impact on the U.S. Men’s National Team, 23 MARQUETTE SPORTS LAW REVIEW 191 (2012)

Tim Hance, Note, Threading American Needle: defining a narrow relevant market for rule of reason analysis in sports antitrust cases, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 247 (2011)

Angela J. Hattery, They play like girls: gender and race (in)equity in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY247 (2012)

Marcus Hauer, Note, The constitutionality of public university bans of student-athlete speech through social media, 37 VERMONT LAW REVIEW 413 (2012)

Jeremy D. Heacox, Comment, Wisconsin Legislature employs halftime adjustment: how Wisconsin’s “new” Indian mascot law changes the outlook for future challenges to the use of discriminatory nicknames, mascots, and logos in Wisconsin schools, 22 MARQUETTE SPORTS LAW REVIEW 651 (2012)

Diane Heckman, Batter up: a look at the Supreme Court’s lineup, including the interaction with the new chief umpire on the bench, as Title IX marks its fortieth anniversary, 22 MARQUETTE SPORTS LAW REVIEW461 (2012)

Kris Helge, The success of a nation’s soccer team: a bellwether regarding a nation’s electronic information infrastructure, the legal regulations that govern the infrastructure, the resulting citizen-trust in its government and its e-readiness in Nigeria, the DPRK, China, Japan, South Korea, the Netherlands and the United States, 39 NORTHERN KENTUCKY LAW REVIEW 467 (2012)

Aishlin P. Hicks, Note, Unsportsmanlike conduct: female sportswriters as targets for sexual harassment, 23 HASTINGS WOMEN’S LAW JOURNAL 219 (2012)

Joseph M. Hnylka, California drops the ball: the lack of a clear approach to recklessness in sport injury litigation, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 77 (2011)

Justin R. Hunt, Note, To share or not to share: revenue sharing structures in professional sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 139 (2012)

John Imhoff, Comment, Bouchat v. Baltimore Ravens, 56 N.Y. LAW SCHOOL LAW REVIEW 1619 (2011-2012)

Trevor Jack, Note, Blue field of dreams: a BCS antitrust analysis, 39 JOURNAL OF COLLEGE & UNIVERSITY LAW 165 (2013)

Aiden Johnson, Note, Update: The curious case of Oscar Pistorius & Caster Semenya, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 89 (2012)

Kendall K. Johnson, Enforceable fair and square: the right of publicity, unconscionability, and NCAA student-athlete contracts, 19 SPORTS LAWYERS JOURNAL 1 (2012)

Cassandra Jones, Book Note, Reviewing Deborah Brake, Getting in the Game: Title IX and the Women’s Sports Revolution, 22 MARQUETTE SPORTS LAW REVIEW 613 (2012)

Richard T. Karcher, Broadcast rights, unjust enrichment, and the student-athlete, 34 CARDOZO LAW REVIEW 107 (2012)

Richard T. Karcher, Redress for a no-win situation: using liquidated damages in comparable coaches’ contracts to assess a school’s economic damage from the loss of a successful coach, 64 S.C. LAW REVIEW 429 (2012)

Joseph B. Kenney, Comment, Showing on-field racism the red card: how the use of tort law and vicarious liability can save the MLS from joining the English Premier League on racism row, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 247 (2013)

Jordan I. Kobritz & Jeffrey F. Levine, Don Fehr leads the NHLPA: does the NHL have anything to fear?, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL178 (2011)

Jordan I. Kobritz et al., Don Fehr trades his ball for a puck: will he continue to score?, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 521 (2012)

Shane Kotlarsky, What’s all the noise about: did the New York Yankees violate fans’ First Amendment rights by banning vuvuzelas in Yankee Stadium?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 35 (2013)

Katherine Kraschel, Note, Transcending space in women’s only spaces: Title IX cannot be the basis for exclusion, 35 HARVARD JOURNAL OF LAW & GENDER 463 (2012)

Liz Larson, Note, More than just spelling: How differences in international labor laws create barriers to expansion of the American National Sports Leagues into Europe intercollegiate sports, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 288 (2011)

Benjamin I. Leibovitz, Comment, Avoiding the sack: how Nebraska’s departure from the Big 12 changed college football and what athletic conferences must do to prevent defection in the future, 22 MARQUETTE SPORTS LAW REVIEW 675 (2012)

Amanda Leone, Comment, Buying influence in college athletics: how much does it cost to put in your two cents?, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 221 (2013)

Michael H. LeRoy, An invisible union for an invisible labor market: college football and the union substitution effect, 2012 WISCONSIN LAW REVIEW 1077 (2012)

Michael H. LeRoy, Federal jurisdiction in sports labor disputes, 2012 UTAH LAW REVIEW 815 (2012)

Clinton R. Long, Promoting competition or preventing it? A competition law analysis of UEFA’s financial fair play rules, 23 MARQUETTE SPORTS LAW REVIEW 75 (2012)

Joseph M. Long, A contextual study of the non-profit duty of obedience: the National Collegiate Athletic Association, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 125 (2013)

James P. Looby, Reasonable accommodations for high school athletes with disabilities: preserving sports while providing access for all, 19 SPORTS LAWYERS JOURNAL 227 (2012)

Brian Lovell, Note, Eighteen years old and ready for driving, cigarettes and war, but not basketball: why the NBA is committing a foul on the age eligibility rule, 26 JOURNAL OF CIVIL RIGHTS & ECONOMIC DEVELOPMENT 415 (2012)

Rohani Mahyera, Comment, Saving cricket: a proposal for the legalization of gambling in India to regulate corrupt betting practices in cricket, 26 EMORY INT’L LAW REVIEW 365 (2012)

Heather M. Mandelkehr, Comment, When toning shoes strengthen nothing more than likelihood of lawsuit: why the Federal Trade Commission needs guidelines regarding proper substantiation of fitness advertisements, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 297 (2013)

Samuel G. Mann, Note, In name only: how Major League Baseball’s reliance on its antitrust exemption is hurting the game, 54 WILLIAM & MARY LAW REVIEW587 (2012)

Michael LAW Martin, It’s not a foul unless the ref blows the whistle: how to step up enforcement of the UAAA and SPARTA, 19 SPORTS LAWYERS JOURNAL 209 (2012)

James Masteralexis et al., Enough is enough: the case for federal regulation of sport agents, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 69 (2013)

James T. Masteralexis & Steve McKelvey, This tweet sponsored by…: the application of the new FTC Guides to the social media world of professional athletes, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 222 (2011)

Alfred D. Mathewson, Remediating discrimination against African-American female athletes at the intersection of Title IX and Title VI, 2 WAKE FOREST JOURNAL OF LAW & POLICY 295 (2012)

Amy C. McCormick and Robert A. McCormick, Race and interest convergence in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 17 (2012)

Eric M. McGregor, Comment, Hooray beer!?: how the reemergence of alcohol sales at campus stadiums will affect universities, 23 MARQUETTE SPORTS LAW REVIEW 211 (2012)

Ryan McLaughlin, Note, Warning! Children’s brains are in danger: legislative approaches to creating uniform return-to-play standards for concussions in youth athletics, 22 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW 131 (2012)

Sunday, May 26, 2013

5 Sports Law Questions & Answers for the Mississippi Sports Hall of Fame

I'm honored to be the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where I taught full-time from 2005 and 2008. I now teach a sports law course there every May and I remain active in the Mississippi sports and legal communities. I consider Mississippi my other home state.

A few days ago, I answered 5 sports law questions for Rick Cleveland, the executive director of the Mississippi Sports Hall of Fame & Museum. Topics include NFL concussion litigation, Bountygate, legality of the Bowl Championship Series, the NCAA banning Twitter hashtags and O'Bannon v. NCAA.  Here's an excerpt:

Part of the problem is that the NFL and NFLPA have a strained relationship, to put it mildly, partly due to the lockout and partly due to years of not trusting one another.

Part of the problem is also that the NFL commissioner has tremendous, non-reviewable powers, and that the players accepted those powers in collective bargaining.  Had the lockout not dragged on right up until the 2011 season, I suspect the players would have had more time to negotiate more due process.  But they didn’t, so the commissioner’s authorities remain quite strong.

To read the rest, click here.

Friday, May 24, 2013

"Sport as Speech" and Non-Sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

Wednesday, May 22, 2013

New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:
Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)
Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)
Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)
Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012) 
Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players. 


Monday, May 20, 2013

Warren Zola article in Boston Globe Magazine

Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid.  Be sure to check it out.

Saturday, May 18, 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  These posts  appear on Saturdays.  First post can be read at this link, the second at this link, the third at this link, and the fourth at this link.  Here is the fifth:


"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

Know Your Role

On occasion, an oversized lineman may find the football bouncing into his arms on a fortunate bounce from a fumble to which he may then lumber anywhere from a few to more than he thought he was able, yards into the end zone for an awe-inspiring score. However, this is not his expertise and far from the position assigned which he has spent in years of training, practice and preparation.

So what happens when you find yourself with the "perfect client" but the client needs work in a field in which you lack essential experience? Do you run with it and hope for the best? In the alternative, do you take a look at the clock, use your last time out and confer with the coach?

The prior installments should suggest the answer. Although a lawyer need not have sufficient competence to handle a matter before taking it on, the lawyer must either be prepared to acquire the competence on a timely basis or to bring in someone who already has the competence. And just as quarterbacks do not necessarily make the best tackles, so too a lawyer-client team may be best served if each player fills the role, and only the role, for which that player has the greatest expertise. An attorney's job is to put the client's goals first and foremost. And even from the attorney's selfish point of view, time spent by an attorney to learn what other lawyers already know may be time that the lawyer simply cannot bill to the client. In other words, both Al and Mega may be best served if Al is, and remains, quarterback rather than trying to play eleven positions at once.

Tuesday, May 14, 2013

Sports Illustrated: The 15 Most Influential Sports Agents

For Sports Illustrated, I write and discuss who I consider to be the 15 Most Influential Sports Agents

Here's my entry for Scott Boras, #2:

2. Scott Boras

Boras Corporation President
60 years old

You know you've made it when teams' personnel decisions are shaped by whether players have you as their agent. And you know you've really made it when a league changes its draft rules because they don't know how to beat you in a free market. "He's a Boras client" is a phrase uttered by baseball executives with irritation, fear and admiration. It means the player is likely to test the market whenever he can become a free agent and will probably go to the highest bidder. It also means the player's advocate will make a sales pitch like no other. Scott Boras negotiated Alex Rodriguez's 10-year, $252 million deal with the Rangers, Barry Zito's 7-year, $126 million deal with the Giants and literally dozens of other free-agent contracts that seemed over-priced then and now. He also arranged for top draft picks -- including J.D. Drew and Jason Varitek -- to play in independent baseball leagues as a way of obtaining negotiation leverage. Baseball has instituted new rules capping how much teams can spend on drafted players, rules which Boras derided as "mockery" but were in fact a tribute to him.

To read the rest of the list, click here.

Saturday, May 11, 2013

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part IV

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  First post can be read at this link, the second at this link and the third at this link.  Here is the fourth:


"Pros or Cons" Thoughts For The Modern "Sports Attorney"
Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

The Lateral Pass (Association and Networking)

The quarterback throws, the running back runs, and the kicker kicks. Each member of a team serves a distinct and valuable purpose. Although a sports attorney may at times need or be tempted to wear a number of different hats, it is important to remember which hats are the most important, which are necessary, and which are problematic.

In our continuing hypothetical, Mega Star's requests of Attorney Al include the organization of Mega's motivational speaking business and the filing of Articles of Incorporation for Mega's motivational speaking business in Delaware and legal advice in connection with Mega's purchase of a vacation home in Florida.

As a first question, one might consider whether Al already has the legal competence to handle these Delaware and Florida matters. If not, then he will either have to take the time to learn enough law to make himself competent or, alternatively, to associate with someone who already has the requisite degree of competence.

It does seem highly unlikely, however that Delaware would view Al's formation of a Delaware corporation as the unauthorized practice of Delaware law. If Delaware law did so, the state could not play the preeminent role that it plays in corporate formation on a national level. Whether Al's involvement in a single real estate transaction for a non-Florida resident would provide him with sufficient Florida contact to subject him to the Florida RPCs would have to be addressed under Florida RPC 4-8.5, though it seems to us that that should not be enough. It should be clear, however, that Al's likelihood of being subject to the Florida RPCs will be materially greater if he regularly helps clients buy Florida real property.

In our next and final installment in this series, we will look at a further real reason why Al may want to "share the glory."

Thursday, May 9, 2013

Ending home-game blackouts?

Introducing legislation is easy, enacting it is hard. So an all likelihood this is not going anywhere. John McCain today introduced the Television Consumer Freedom Act of 2013, which primarily would allow cable companies to offer channels a la carte, rather than exclusively in packages.

But buried in § 5 of the bill is a provision that would eliminate blackout regulations for games played in stadiums that were financed, in whole or in part, by federal, state, or local government. This would repeal a portion of the Sports Broadcasting Act of 1961, passed at the urging of NFL Commissioner Pete Rozelle, which allows teams to blackout home games in local markets. McCain described the practice of preventing taxpayers from watching games played in arenas that their tax dollars had paid for as "unconscionable." Many of my ideas on fan speech depend on legal consequences and limitations attaching to public financing of sports venues, so I am glad to see the bill relying on the same idea.

Of course, most legislation is introduced for show and there is no apparent groundswell of public or legislative support for this, so I do not expect the bill to go anywhere. And it has more than a little whiff of McCain trying to play populist maverick against the broadcast/cable industries (recall that McCain criticized radio stations for the boycott of the Dixie Chicks in 2003). Still, it is an interesting proposal to watch.

O'Bannon Case Update: Discovery

The O'Bannon v NCAA case crawls along.  Presently the courts are trying to determine the scope of discovery leading up to the trial itself.  There was a hearing yesterday (May 8th) in San Francisco before U.S. Magistrate Judge Nathanael Cousins, in part, to determine from whom the plaintiffs would be allowed to take depositions.  This is an important step in the process as the case heads progresses towards the June 20th hearing before U.S. District Judge Claudia Wilkins on class certification.

In terms of depositions, Judge Cousins decided that:

The plaintiffs MAY depose:

1. Big Ten commissioner Jim Delany
2. Horizon League commissioner Jon LeCrone
3. Frenso State president John Welty

At this time, the plaintiffs MAY NOT depose:

1. Texas athletic director DeLoss Dodds
2. Missouri Valley commissioner Doug Elgin
3. Big 12 commissioner Bob Bowlsby
4. NCAA managing director of research Todd Petr.

For a detailed report on yesterday's proceedings, and comments from both sides, you can read the excellent piece by Steve Berkowitz of USA Today here.

Additionally, Jon Solomon of the Birmingham News write about the fact that a former EA Sports employee admitted in his deposition that the programmers absolutely tried to replicate college players.......conflicting an initial defense offered by the NCAA.  In his story, which can be read here, Solomon says:

"Jeremy Strauser, who worked at EA from 1995 until 2011, testified last December that computer-game avatars were linked to specific player identifying numbers and biographical information, such as team depth charts, was used to make the game realistic.  "We generally tried to make the players perform as their real life counterparts, short of their name and likeness," Strauser testified."

Stay tuned.....

Sports, video, and procedural rules

This story captures why people like me like using sports to illustrate legal ideas.

1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.

2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.

Legal Analysis of Vijay Singh v. PGA Tour

I have an article for on Vijay Singh's lawsuit against the PGA Tour over his would-be suspension for using deer antler spray (which he admitted to in a Sports Illustrated story by David Epstein and George Dohrmann).

Here's an excerpt of my article:
He also takes sharp aim at what he portrays as a disingenuous right to appeal the suspension. According to the lawsuit, the PGA Tour told Singh in February that if he appealed the 90-day suspension, the suspension would not begin until after an appeal was heard in May and was found unsuccessful. Pending the appeal, Singh could continue to play on the PGA Tour. Singh, however, claims the PGA Tour told him that any money he earned during the pending period would have to be put in escrow and subject to forfeiture if he lost the appeal.

In other words, if Singh appealed and lost, he would have lost more than 90 days’ worth of money: he would have forfeited any money he earned while pending appeal, plus money he could have earned over the 90-day suspension.

In Singh’s view, the message was clear: he would be punished for appealing. Singh insists no other golfer has been subjected to this arrangement and that it constituted bad faith.
To read the rest, click here.

Tuesday, May 7, 2013

Flood v. Kuhn Reenactment

Readers in the Washington, D.C. area may be interested in attending an upcoming event organized by the Supreme Court Historical Society where the oral argument from the 1972 Supreme Court case of Flood v. Kuhn -- affirming baseball's historic exemption from antitrust law -- will be reenacted.  The event is scheduled to be held at the Supreme Court on Wednesday May 22nd, with Justice Sonia Sotomayor presiding.  More information for the event, which costs $75 to attend, is available here.

Monday, May 6, 2013

The truth about past relationships

NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.

Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?