It's Official: McCann is a "Top NBA Mind"

Finally, sports lawyers are getting their due. A few months ago I declared 2012 the "Summer of Sports Law."  With no end to the NHL lockout in sight, the O'Bannon v NCAA case growing steam and national attention, and the power of Roger Goodell being litigated on a daily basis, the demand for insight from sports lawyers is growing—although for some reason our pay isn’t.

Anyways, The Sporting Charts (www.sportingcharts.com) just posted a list of the Top 50 NBA Minds to Follow on Twitter here.  Not surprisingly, our own Michael McCann (@McCannSportsLaw) was listed.  Join me in congratulating Mike on continuing to help grow this important field—and if you don’t follow him on Twitter, consider this your wake-up-call.

[Of course since my account (shameless plug @WarrenKZola) was noticeably absent I’m sure there some sort of accounting error for which I'll definitely sue.]  Seriously...congrats Mike!

Two Updates on the Sports Gambling Front

The past several weeks have saw a number of developments on the sports gambling front.  First, the federal lawsuit filed by the NCAA and the four major North American team sports leagues (NBA, NFL, MLB, and NHL) challenging New Jersey's move towards regulated sports betting continues to move forward.  The most recent news involves depositions being scheduled for the league commissioners and the NCAA president.  For more background on the legal and corruption aspects of sports gambling, here is a link to a paper Tassos Kaburakis and I co-authored that was recently accepted for publication in the Journal of Legal Aspect of Sport.  Also, for a comprehensive history of gambling-related federal legislation since 2000, we wrote a piece that was just published in Gambling Law Review and Economics.

Second, authorities in New York and Nevada (working in concert with the FBI, it appears) made a number of arrests earlier this week in connection with an 18 month illegal sports gambling investigation.  The DA's press release alludes to several offshore sports books.  A recent Las Vegas Review-Journal article provides more detail on the sting operation.  For a copy of the full 259 page indictment, click here.

Video of Yale Law School Hot Topics in Sports Law Panel

I moderated the Yale Law School panel last week on hot topics in sports law - a video of the panel is available online. Jimmy Golen was one of the distinguished panelists, as were Craig Masback (Nike), Charles Mechem (LPGA), and Nell DeVane (ESPN). We covered a wide-range of topics, including the legality of age limits in sports, viewing college sports as minor leagues, Ed O'Bannon v. NCAA (and the paying of college athletes), whether the NCAA should have punished Penn State, Title IX, morals clauses (including with Lance Armstrong) etc.  Harvard Law School Professor Alan Dershowitz, in the audience, had several insightful comments about Penn State and the NCAA. Here's the video -- and thanks to Warren Zola for finding and sharing it:
In the Legal Zone: Hot Topics in Sports Law from Yale Law School on Vimeo.

Symposium: The Impact of Concussion Lawsuits on the Future of Football

The Mississippi Sports Law Review at the University of Mississippi School of Law is hosting an incredibly timely symposium entitled "The Impact of Concussion Lawsuits on the Future of Football."  I am honored to be participating in this symposium which will be held Friday, November 9, 2012, at the Robert C. Khayat Law Center at 1:30 p.m., room 1078 (free and open to the public).

From the symposium website: "Once thought to be a badge of honor that doctors could quickly 'cure' with a sniff of smelling salt, concussions have now become the subject of litigation that could threaten the future of football and other contact sports. Recent medical studies consistently show serious long-term effects for athletes who have had multiple concussions, including serious brain trauma and reduction in life expectancy. Where re-entering the game after a concussion, or even the week after a concussion, used to be common practice, there is an increasing burden on team physicians and the athletes themselves to consider the implications of going back onto the field. In light of this research, the four major American sports leagues have implemented concussion policies and procedures, but many question if these policies alone are sufficient to protect the athletes from permanent injuries."

Broadcast Rights, Unjust Enrichment, and the Student-Athlete

At the professional league level there is a long history of disputes and court challenges over property rights in the live game broadcasts.  However, the interest of the NCAA, conferences and universities in live game broadcasts from a property rights perspective has never been challenged in court.  Who owns the copyright to the broadcast of the live game?   What is the origin of the legal right of the NCAA, conferences and universities to the billions in revenue generated by their licensing of the right to broadcast the live games?   Assuming the NCAA, conferences and universities do in fact have some sort of property right or other legal right to sell these rights to networks, should they be recognized as the exclusive rights holder?  Do college players also have some sort of property right or other legal right to a portion of the licensing revenue based upon their substantial contribution to the broadcast of the game?  Afterall, the players are the sine qua non of the broadcast because it obviously does not exist, and it would not generate billions in revenue, without their contribution and year-long preparation. 

My article published this fall in Cardozo Law Review traces the historical development of broadcast rights in the professional sports leagues.  In essence, the courts have held that professional clubs have a quasi-property interest in the right to license the broadcast rights to the networks.  The network is the author of the broadcast and assigns to the league its ownership in the copyright to the broadcast pursuant to a provision in the broadcast licensing agreement.  And college sport has followed on the coattails of the professional sports league model.  Basically, the network pays the NCAA, conferences and universities billions of dollars to let their camera crew enter the stadium door and capture the game being played.  Yet nobody has challenged this exclusive putative quasi-property right of the NCAA, conferences and universities.

There are legitimate reasons to recognize an exclusive right for the professional clubs that arguably do not apply to tax-exempt public universities.  While difficult to explain in any detail in a blog post, a couple distinctions are worth mentioning briefly.  For example, professional clubs are for-profit entities with individual owners who put substantial private investment at risk through their purchase and operation of a team.  Also, professional players are employees of the clubs, which is legally significant in evaluating the property right because the Seventh Circuit in Baltimore Orioles v. MLBPA held that the players' claim to a portion of the licensing revenue was precluded on the basis of copyright law's "works for hire" doctrine  and the players can negotiate with the clubs over the value of their individual contributions to the broadcast.  College players, on the other hand, cannot be subject to the works for hire doctrine simply because, well, college sport has consistently maintained the position that the players are not employees or independent contractors who can be hired.  Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, my article argues that universities obtain an unjust benefit at the players' expense by retaining exclusively for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution to the value in the live game broadcast.  My article also addresses whether copyright law preempts an unjust enrichment claim in this context and I explain why I do not believe that it would.

In the O'Bannon litigation, the class did not assert a claim to live broadcast licensing revenue in its complaint.  Just last month, however, the class filed a motion seeking to revise the class definition to include live game broadcast licensing revenue.   If the court ends up denying their request, I nevertheless expect to ultimately see this case coming soon to a theatre near you....

San Francisco Bay, America's Cup Venue

One of the more striking scenes from the world of sports this week was the pitchpoling of the Oracle America's Cup yacht in San Francisco Bay during reported 25 knot winds.  Seeing this video of the capsizing was a reminder of how important the venue of a sporting event is, including venues for sports other than the major four sports, and how the attorney working with a sporting event must consider the challenges of the venue in preparing contracts for the event.

For an America's Cup regatta, one of the challenges posed by the venue is spectator proximity to the action and safety.  Unlike previous America's Cup regattas held far offshore where few spectator boats might venture, this America's Cup will be held close to shore where there will be many spectator boats.  They likely won't be high-performance racing boats like an America's Cup yacht, but they will be close to the action, on the water, and close to each other, possibly in high winds or rough seas.  Spectator safety risks must clearly be assessed, with the goal of keeping these fans safe during the event while allowing them to enjoy the action.  The America's Cup organizing authority's contracts with the relevant authorities have to address safety issues so that liability is minimized -- where can spectator boats be positioned during a race, how will safety be monitored, how many boats will be allowed in an area, what spectator boat credentials or registration will be required, what liability waivers will be obtained.  By accounting for these issues in contracts, the excitement of America's Cup racing can remain the focus during the event.

RIP Russell Means

Activist, actor, musician, agitator, politician and former American Indian Movement (AIM) leader Russell Means passed today from esophageal cancer, at the age of 72.  He died at his ranch located on the Pine Ridge Indian Reservation in South Dakota,  the place where he was born in 1939.  Means was a fierce advocate of American Indian rights and led dozens of protests and uprisings throughout his life ranging from seizing the Mayflower II in Plymouth, Mass on Thanksgiving day in 1970 (protesting discriminatory treatment of American Indians), to orchestrating a 1971 prayer vigil atop the Mount Rushmore monument in South Dakota (dramatizing Lakota claims to the Black Hills), to organizing cross-country caravans in 1972 to Washington, D.C. (protesting a century of broken treaties by the U.S. government), to leading a boycott of Cleveland Indian games in the 1990s (protesting the use of Chief Wahoo as a racist, caricatured mascot/logo).

Russell Means' method of protest was often controversial and violent.  He was arrested many times, served time, shot several times, and criticized as an "opportunist" by critics.  According to the New York Times: "Strapping, and ruggedly handsome in buckskins, with a scarred face, piercing dark eyes and raven braids that dangled to the waist, Mr. Means was, by his own account, a magnet for trouble — addicted to drugs and alcohol in his early years and later arrested repeatedly in violent clashes with rivals and the law. He was tried for abetting a murder, shot several times, stabbed once and imprisoned for a year for rioting. He styled himself a throwback to ancestors who resisted the westward expansion of the American frontier. With theatrical protests that brought national attention to poverty and discrimination suffered by his people, he became arguably the nation’s best-known Indian since Sitting Bull and Crazy Horse."

In protesting Chief Wahoo as mascot and logo of the Cleveland Indians, Russell Means referred to its continuing use as "unconscionable."  He was outspoken throughout his life challenging professional sports franchises and collegiate athletic programs use of American Indian mascots and mimicry of sacred native culture and tradition.  When asked about Florida State's mascot Chief Osceola, Means responded that "we’re the only entire ethnicity in America that is still stereotyped."  In describing American Indians as the only minority group in the United States that is still stereotyped, Means focused in on an interesting phenomenon that has been written about by scholars and debated in symposia:  Why when it would be unthinkable to call a sports team by a racially charged nickname in connection with African American, Latino or Asian citizens, is it still somehow tolerated to refer to teams as "Redskins," "Indians," "Braves," "Blackhawks," "Utes," and "Seminoles"?

Russell Means is most recognized for two well known portrayals, though very divergent:  First, he led a 1973 occupation of Wounded Knee, South Dakota, the site of the 1890 massacre of more than 350 Lakota men, women and children, often referred to as the last major conflict of the American Indian wars, where protestors demanded strict adherence by the federal government to all Indian treaties.  Second, he starred as Chingachgook in Michael Mann's 1992 epic "The Last of the Mohicans" alongside Daniel Day-Lewis and Madeleine Stowe.  Means received critical attention for his portrayal of the fiery, brave father/leader of the Mohican people.

Russell Means used his notoriety to advocate on behalf of equality on behalf of American Indians until his untimely death.

Outsourcing NCAA enforcement

An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.

This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.

O'Bannon v. NCAA: Where things stand

I have an article in the October 15th issue of Sports Illustrated that provides a legal analysis of recent developments in the Ed O'Bannon v. NCAA & Electronic Arts class action. 

Here's an excerpt:

* * *

Second, potentially damaging e-mails involving two other defendants—Collegiate Licensing Company (the NCAA's licensing partner) and Electronic Arts—have emerged. These e-mails portray CLC officials as worried about the legal impact of Electronic Arts's developing video-game characters using real college players' names and then removing those names before retail.

 * * *

Hope you can check it out on page 19 or through this SI Vault link.

Yale Law School Alumni Weekend: Panels on Sports and Entertainment law

I'm thrilled to be part of this weekend's Yale Law School Alumni Weekend, which is centered on sports and entertainment law this year.  If you're in the New Haven area, you might consider registering for it and seeing what should be excellent panels and other events.

Saturday, October 20

9:30 – 10:45 AM
Panel Discussions (two concurrent sessions)

PANEL I. Streaming and Beaming:  Entertainment Where and When You Want It

Moderator:  

Bryan Choi, Thomson Reuters Fellow, and Director of the Law and Media Program, Information Society Project, Yale Law School

Panelists: 

Emily Bazelon '00, Journalist, Slate, and Senior Research Scholar, and Capote Fellow, Yale Law School
Richard Cotton '69, Executive Vice President and General Counsel, NBC Universal
Alfred C. Perry '87, Vice President, Worldwide Content Protection & Outreach, Paramount Pictures Corporation
Kenneth P. Stern '88, Co-founder and President, Palisades Media Ventures, and former CEO, National Public Radio

PANEL II. Many Voices, Many Eyes: The Promises and Pitfalls of Social Networks

Moderator: 

Margot E. Kaminski '10, Research Scholar in Law, Executive Director of the Information Society Project, and Lecturer in Law, Yale Law School

Panelists:

Lori B. Andrews '78, Distinguished Professor of Law and Director of the Institute for Science, Law and Technology, Illinois Institute of Technology, Chicago-Kent College of Law
James Grimmelmann '05, Professor of Law, New York Law School
Beth Simone Noveck '97, Visiting Professor, NYU Robert F. Wagner Graduate School of Public Service and MIT Media Lab, and Professor of Law, New York Law School
Madhavi Sunder, Professor of Law, University of California, Davis

11:15 AM – 12:30 PM
Panel Discussions (two concurrent sessions)

PANEL III.  Yours, Mine and Ours: Ownership of Cultural Capital

Moderator:

Susan M. Scafidi '93, Professor & President, Fashion Law Institute, Fordham Law

Panelists: 

Barton Beebe '00, Professor of Law, New York University School of Law
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Kristelia A. Garcia '03, Frank H. Marks Intellectual Property Fellow & Visiting Associate Professor, The George Washington University Law School, Washington, DC
Marc Porter '87, Chairman, Christie’s Americas and International Head, Christie’s Private Sales

PANEL IV.  In the Legal Zone: Hot Topics in Sports Law

Moderator:

Michael McCann, Director, Sports Law Institute, and Professor of Law, Vermont Law School

Panelists:

Eleanor (Nell) DeVane '93,  Vice President and Associate General Counsel, ESPN
Jimmy Golen '99 M.S.L., Sports Writer, The Associated Press
Craig A. Masback '92, Senior Sports Marketing Director, Greater China, Japan & Global Business Affairs, Nike; and former CEO, USA Track & Field (1997-2008)
Charles S. Mechem, Jr. '55, Commissioner Emeritus, Ladies Professional Golf Association; and Chairman and CEO, Taft Broadcasting Company

12:45 PM

All Alumni Luncheon
University Commons (Enter either on the corner of College and Grove Streets or from
Beinecke Plaza off Wall Street)

Opening Remarks:
John R. Firestone '85, President, Yale Law School Association Executive Committee, and Partner, Pavia & Harcourt LLP
Robert C. Post '77, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School

Presentation of the Yale Law School Association Award of Merit to:
David Boies II '66, Chairman, Boies, Schiller & Flexner LLP
Presented by: Dean Robert C. Post '77

Remembrances:
The Honorable Louis H. Pollak '48 (1922-2012), Judge, U.S. District Court for the Eastern District of Pennsylvania (1978-2012); and dean, Yale Law School (1965-70) and University of Pennsylvania Law School (1975-78).  
Nicholas deB. Katzenbach '47 (1922-2012), Associate Professor, Yale Law School (1952-56); U.S. Attorney General (1965-66), and Senior Vice President and General Counsel, IBM (1968-86).
80th Birthday Celebration:
The Honorable Guido Calabresi '58, Judge, U.S. Court of Appeals for the Second Circuit, and Sterling Professor Emeritus of Law and Professorial Lecturer in Law and dean (1985-94), Yale Law School

New York Law School Sports Law Symposium Friday Nov 2

I'm excited to be part of this year's New York Law School sports law symposium, which will be held on Friday November 2.  Great work by Brett Hirsch and others in putting it together.  They have followed in the excellent planning of sports law symposiums at NYLS previously shown by Elliot Solop, Alycia Powell and others.

Here are the details of this year's event (and if you are interested in attending, click here):


The New York Law School Sports Law Society and the Institute for Information Law and Policy

Presents:

The Fourth Annual Sports Law Symposium

Friday, November 2, 2012

185 West Broadway

W201 (Events Center)

Fee:        $45 for attorneys (includes CLE’s)

            $45 for attorneys and professionals not seeking CLE credits (No CLE credit)

$15 for outside students

Free for current NYLS students (with a valid school ID)

This CLE program has been approved for a maximum of four hours of CLE credit for both transitional and non-transitional attorneys. New York Law School offers tuition assistance for attorneys who may have difficulty attending CLE events due to cost considerations. Please visit:  http://www.nyls.edu/academics/cle/tuition_assistance to see if you qualify.  

Tentative SCHEDULE                                                                                                                                                               

11:30 a.m. - 11:45 a.m. 
Opening Remarks

11:45 a.m. - 12:30 p.m 
Keynote Interview with Mike Zarren  

12:45 p.m. - 1:45 p.m. 
Overview of Current Legal Developments in the Sports Industry  (1 CLE Credit - Professional Practice) 

2:00 p.m. - 3:00 p.m. 
Breakout Sessions

• Intellectual Property Issues in Sports (W420)  (1 CLE Credit - Professional Practice)
• Negotiating Rights Acquisitions (W320)  (1 CLE Credit - Professional Practice) 
• Bankruptcy Issues in Sports (W220)  (1 CLE Credit - Professional Practice) 

3:10 p.m. - 4:10 p.m.
Analysis and Impact of the Concussion Litigation (1 CLE Credit - Professional Practice) 

4:20 p.m. - 5:20 p.m.
Sports Labor Negotiations (1 CLE Credit - Professional Practice) 

5:30 p.m. - 6:20 p.m. 
Breaking Into the Sports Industry 

6:30 p.m. - 8:00 p.m. 
Networking Reception 

 PANELISTS *                                                                                                                                                                              

Jodi Balsam, Associate Professor at NYLS; Former Counsel for Operations and Litigation at the NFL

Robert Boland, Professor of Sports Management & Sports Business at New York University 

Marc Edelman, Associate Professor of Law at Barry University: Dwayne O. Andreas School of Law 

Robert Erb '91, CEO at Schutt Sports; Adjunct Professor at New York Law School  

Frank Golding, YouTube Director, Head of Sports for North America at Google 

Russ Granik, Vice Chairman at Galatioto Sports Partners; Former Deputy Commissioner and COO at  the NBA 

Frank Hawkins, Partner at Scalar Media Partners; Former SVP Business Affairs at the NFL 

Darren Heitner, Founder of the Sports Agent Blog; Attorney at Wolf Law; Contributor at Forbes Magazine; 

Ronald Katz, Partner and Chair of the Sports Law Group at Manatt

Jeannine Kenney, Associate Counsel at Hausfeld LLC; Plantiff's Liason Counsel for NFL concussion litigation 

J. Carlos Kuri, Vice President and General Counsel at New York Red Bulls  

David Mayer, Principal Counsel at ESPN, Inc.

Michael McCann, Legal Analysts at SI & NBA TV; Professor & Director of Sports Law Institute at Vermont Law School;  

Lauren Dienes-Middlen, VP, Intellectual Property at World Wrestling Entertainment, Inc. 

Joe Nahra, Business & Legal Affair Executive at CAA Sports

Matthew Parlow, Associate Dean for Academic Affairs and Associate Professor of Law at Marquette University 

Irwin Raij, Partner and co-chair of the Sports Industry Team at Foley & Lardner LLP

Robert Raiola, CPA; Sports & Entertainment Group Manager at Fazio, Mannuzza, Roche, Tankel, LaPilusa, LLC

Frank Saviano, Associate at Proskauer 

Alan Schwarz, Reporter at New York Times

David Soskin '08, Counsel at ESPN, Inc.; Adjunct Professor at New York Law School  

Meredith Wolff, Associate Staff Attorney at NHL Enterprises, L.P.

Mike Zarren, Assistant General Manager and Team Counsel at Boston Celtics 

Warren Zola, Chair, Professional Sports Counseling Panel, & Asst. Dean, Grad. Management Programs at Boston College

Getting it wrong on Lance

When Lance Armstrong announced that he was no longer contesting the USADA proceedings, I likened him to Pete Rose and said here that he would be just fine, that he would continue to proclaim his innocence and to remind everyone that no body had ever found him to have doped or used PEDs. I even said so on a radio interview, in response to the suggestion that marketing people had proclaimed him finished as a spokesman, fundraiser, and endorser.

It looks like I got this one very wrong. Yesterday's announcement that Armstrong had been dropped by Nike (which proclaimed itself shocked, shocked that the man who dominated a sport in which everyone doped had been doping himself) and that Armstrong had resigned from his own Livestrong Foundation suggests that he is going to suffer some major fallout. This comes in the wake of USADA releasing the report from its investigation, which laid out in great detail the evidence against Armstrong. Clearly one major sponsor wants nothing to do with him. And clearly either he or other leaders at the foundation believe he would be a drag on fundraising and other charitable efforts.

Perhaps, as Michael Wilbon argued on PTI last night, this is purgatory rather than hell, that Armstrong has to go away for a year or two, then emerge, admit to doping, and ask for forgiveness. In our culture of second chances, Wilbon insists, all be forgiven and Armstrong will be back on the scene as a public figure. Of course, that is what everyone insisted they wanted from Pete Rose and when Rose finally admitted to gambling, he was just buried further. Come back in a couple of years and we'll see.

Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.
The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.


1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They  just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.

2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.

3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.

I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.

Quantitative Sports Law

Starting Fall 2013, I recently learned that I will be able to fund at least one PhD student interested in research at the intersection of quantitative methods and sports law.  More details can be found here.  Please contact me if you are interested.

For an example of how math and sports law can intersect, here is a panel discussion on corruption and gambling in sports.  One of the speakers details how he used statistics to determine the scope of point shaving in college basketball.

In Defense of the Infield Fly Rule

My two posts on the controversial Infield Fly Rule call in last week's National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.

By the way, media opinion on last week's call seems to be changing. Two of the stronger defenses are from Rob Neyer and Harold Reynolds (with video breakdown, including highlights of IFR calls happening in similar spots on the field).

Say It Ain’t So, Lance

The latest news about American Hero Lance Armstrong is not good. Anyone who has had a look at the report of the United States Anti-Doping Agency has to be left with some serious questions.

The first one for me is what kind of an agency is this? It is an ominous and official sounding title but it turns out this group is not a governmental body or agency. It is a private, non profit organization which serves as the police, prosecutor, judge, jury, and appellate court to root out the use of performance enhancing drugs by athletes competing in the Olympics, Pan-American Games, Para-Olympics and, apparently, the Tour de France. On their website, the USADA says their vision is to be “The guardian of the values and life lessons learned through true sport.”  Wow, that’s some vision.  And I guess that’s why they have gone after Lance Armstrong with such zeal.

The report includes a number of sworn statements by Lance’s teammates, his competitors really, who freely admit they used banned substances when they lost to the seven time champion, but they say Lance did, too. The Report cites as evidence that there were “some tell tale signs” Armstrong was using EPO, “such as Lance carrying around a thermos.” Not that anyone saw or knew what was in thermos, mind you, but he did carry one around.

Of course, there are far more convincing statements from a host of his former teammates and others purporting to be eye witnesses to Armstrong’s use and distribution of banned substances and of his withdrawing and then transfusing his own blood in an effort to increase its oxygen content. These are difficult to explain away and probably are the reason Armstrong refused to defend himself against these new charges.

Most damning is the suggestion that the USADA has retest results of some blood samples that had previously been found to be clean and that now show evidence of doping. There is little explanation, however, as to why the first tests done within a short time after the blood was drawn were negative.

I admit the Report with all its flaws is fairly convincing. But it does not diminish my view that Armstrong is one of the great athletes of our time, not to mention all the good work he has done as a cancer survivor. His feats were superhuman as he prevailed time and again over other cyclists who apparently now admit using the same banned substances he is accused of using. And no self-appointed guardian of “true” sport’s values and lessons, whatever they may be, can take that away.

The political is the personal

One of the venerable "predictors" of a presidential election is the World Series winner--American League team means Republican president, National League team means Democratic president. It has held 16 out of 26 times (when I first learned about it in a freshman poli sci class in 1986, it had held 13 out of 20 times).

Now, I'm a Cubs fan, so my rooting and political interests generally align (not that anyone is worrying about the Cubs playing in the World Series). My wife, however, is an Orioles fan and I have been watching and rooting for them (and wearing a '70s-era bird hat) as a show of spousal support. But with the election fast-approaching, Obama's polls tanking, and Andrew Sullivan losing his mind, I am beginning to wonder if I should continue rooting for an AL team right now. What should I do?

By the way, if you are looking for other sports-related predictors, try this: If the Redskins win their final home game before the election, the incumbent party retains the White House. This has held in 18 of the last 19 elections. The 'Skins play the Carolina Panthers on November 4.

7 Questions in Aftermath of Jerry Sandusky Sentencing

I have a new column for SI.com on the sentencing of Jerry Sandusky and what it means for Penn State.

The return of the Infield Fly Rule

Law-and-sport types are having fun this morning (at least those not living in Atlanta) because everyone is suddenly talking about our favorite rule in all of sports--the Infield Fly Rule. Lawyerly fascination with the Rule was captured in William Stevens's famous 1975 "Aside" in the Penn Law Review. It remains the most legalistic of rules in the most legalistic of sports. And if you can explain it to someone, you know baseball.

In last night's Wild Card playoff game between Atlanta and St. Louis, the umpire made a controversial infield fly call on a fly ball into short left that fell when the Cardinals' shortstop  and left-fielder miscommunicated; the shortstop had settled under the ball and looked ready to make the catch, then ran out of the way when he thought the left-fielder had called him off. (Video here). The call took the Braves out of what would have been bases loaded/one-out situation, trailing 6-3; instead, there were two out and the Braves did not score again. The game was delayed for 18 minutes when Atlanta fans began throwing stuff onto the field. The Braves played the game under protest, but MLB denied the protest and upheld the Cardinals 6-3 win.

What we have here is a nice example of statutory interpretation; whether the call was correct depends on how you resolve the conflicts among textualism, history, and purposivism.

The text of the rule requires only that the ball "can be caught by an infielder with ordinary effort." Commentary to the rule (call it legislative history or committee notes) points out that the rule's applicability is not subject to "arbitrary limitations" such as the baselines or grass, so the fact that the ball was hit into the outfield does not matter. The rule also can apply even if the ball is handled by an outfielder (as happened here), if the umpire determines that it could have been as easily handled by an infielder. So far, watching the play with the text in mind, the call seems right. But the purpose of the Rule is to prevent an infielder from dropping the ball  on purpose and getting a double play on the base runners who had to stay put on the short fly ball. Given how deep the ball was hit, there was no way the runners would have been doubled off and no way the shortstop would have tried. So the interests served by the rule were not implicated on the play, thus purposivism suggests the call was wrong. Now the question is whether you believe text or purpose controls.

In addition, the play had procedural problems. The Rule requires the umpire to "immediately declare" infield fly "[w]hen it seems apparent" that the rule is catchable by an infielder with ordinary effort. The commentary emphasizes that "the decision should be made immediately." If you watch the replay that begins at the 0:55 mark on the linked video, however, the umpire makes the call really late, probably because it took longer than usual for it to become "apparent" that the ball was easily handled by the infielder. But note that the Rule also states that the obligation to "immediately declare" infield fly is for the benefit of the runners, not the batter; the batter is out on the call, so the goal is just to give runners notice of the play (the ball is live and runners can move at their own risk). Since neither baserunner was disadvantaged by the call, the lateness did not affect them. The only thing the lateness of the call did was heighten the confusion surrounding the play and therefore the fan and player anger over the call.

So my instinct is that the umpire got it right, however odd the play looked. Either way, I'm just glad to be able to write about the rule.

OFFSIDES

Fool me once, shame on you. Fool me four times, you need your head examined.

The NHL is surely the most dysfunctional family in all of sports, maybe in the history of labor-management relations. Four times in the last 20 years, the league and its players have volunteered to sit in the penalty box and off the ice. In 1992, they lost 30 games; in 1994, about the same; in 2004, they trashed the whole season, and the league just announced the cancellation of games through at least the first two weeks of the season.

I don’t have an opinion as to who is at fault but does either side have any concept as to what is going on in the world’s economy?

The average salary of the players in the league is a healthy $2.4 million. That is a half million dollars higher than the average salary in the NFL, which has three times the total revenue of the NHL.

Still, last year was the best year ever for the teams in terms of revenue, approaching almost three billion dollars. And its individual owners are no slouches either. The league boasts eight billionaires among its top brass, three more than are in Major League Baseball.

So why can’t these folks just get along? Is it the language barrier? After all the league has players from something like 14 nations and even the two thirds of the players which hail from North America seem to be divided equally between French and English speakers. Or is it just greed?

Since it’s obvious the two sides cannot figure out how to negotiate with one another, why not just submit to some sort of binding arbitration? They might be able to agree on an Administrative Law Judge from the Department of Labor. Or better yet, randomly pick three longtime season ticket holders, present your best case, and drop the puck.

Getting the wild card right

I have written several times about baseball's old wild card system, which I argued eliminated the possibility of good division races between top teams. When the top two teams in a league are in one division, there was no real incentive to win the division, because both teams knew they were in the play-offs and being the wild card was not a significant disadvantage.  Otherwise, the real race was between a potential wild card and the other potential wild cards in other divisions or between two weaker division rivals, one of whom will not make the playoffs.

But baseball made two changes this year: 1) they added a second wild card team and 2) the two wild cards meet in a one-game playoff, the winner then playing a division series with the team with the best record in the league. And, at least for this year, these changes prodcued real division races between good teams, at least in the American League: Both the A.L. East and A.L. West came down to the final day of the season, with the Yankees winning 95 games and beating out the Orioles by 2 games and the A's winning 94 games and beating out the Rangers by a game. The difference this year is that both the Rangers and Orioles had a real incentive to catch the team ahead of them on the final day, in order to avoid that one-game playoff.  In previous years, by contrast, the Orioles would not have cared about catching the Yankees in the final two days of the season; they only would have worried about staying ahead of the Rangers, then getting to play in the division series.

So, credit where credit is due--baseball made changes that create the right incentives.

Ed O'Bannon scores victory against ESPN in his NCAA lawsuit

I have a new article for Sports Illustrated on U.S. District Judge Alfred V. Covello ordering ESPN to give Ed O'Bannon its TV & licensing contracts with the NCAA. O'Bannon's class action lawsuit threatens any company that has a contract with the NCAA or its members. O'Bannon may also end up suing those companies. 

Here's an excerpt:

Looking further down-the-line, Judge Covello's ruling is a reminder that O'Bannon's case presents real financial and legal risk for companies that have contracts with the NCAA, CLC or member institutions. ESPN is not the first company to see this risk materialize, as Electronic Arts, makers of college sports video games, has similarly been impacted by the litigation. And yet divulging information they consider privileged is not the greatest worry for these companies. Instead, it's this: relinquishing private knowledge about how much they have profited from the labor of college athletes illuminates these companies' own susceptibility to being sued by O'Bannon. After all, if the NCAA wrongly profited from the names, likenesses and images of college athletes, then companies in contract with the NCAA have arguably done the same.

Hope you have a chance to check out the article.

The Presidential Debate: Baseball Quiz

The Huffington Post's Aaron Zelinsky, who has written extensively about the intersection of sports, law, and government (see his Yale Law Journal Online article The Justice as Commissioner: Benching the Judge-Umpire Analogy) has an interactive piece on the Huffington Post called "The Presidential Debate: Baseball Quiz".  Try to match the presidential debater with the ballplayer they most resemble.

Lance Armstrong and Morals Clauses

I was asked an interesting question recently, in the aftermath of Lance Armstrong's decision to no longer contest the doping allegations pending against him.  Would his failure to contest the allegations trigger a morals clause in any of his endorsement contracts and lead present or former endorsing companies to sue him?

It's an interesting question on a number of levels.

First, assuming his endorsement contracts do have morals clauses, the critical issue is what specific language they provide.  Do they have broad enough language to cover a situation where the conduct at issue hasn't been admitted, but is no longer being contested?

If the morals clause is broad enough to even be triggered, is it too late for the endorsing company to assert a claim?  The answer to this question depends on what the basis for the claim is and when the conduct at issue occurred.  For example, would the claim be for breach of contract, which has a statute of limitations of six years in many jurisdictions?  Would the claim be for fraud, based on Armstrong's misrepresenting at the time he signed a contract that he was not engaged in doping?  Fraud claims often have a shorter statute of limitations, typically three years.

The other fundamental questions is what the offending conduct is and when it occurred.  Armstrong won his first Tour de France in 1999 and his last in 2005.  If the basis for a breach of contract claim arises from doping during that period, it would appear that any claim would be barred based on the statute of limitations, unless a plaintiff could argue that the statute was tolled based on concealment of doping.

One final issue, regardless of the legal issues surrounding a claim based on a morals clause, is whether it is worth it for any company that endorsed Armstrong to bring a claim.  Would a company want to spend the time and money litigating to recover endorsement fees so long after the fact, and essentially having to prove that Armstrong doped?  Thus far, no company that endorsed him has taken such action.