Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program. The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to me for protection from that other who is threatening you.
A Murder in Massachusetts: Aaron Hernandez
Hope you can pick up a copy of this week's issue and out the article.
MMA in Indian Country
An interesting piece on MMA in Indian Country (I had not realized the sport somewhat got its start there) and regulatory conflicts between states and sovereign Indian nations. My colleague Alex Pearl was a source for the story.
The Ends Do Not Justify the Means in MLB's Current PED Investigation
I am excited to have been invited to become a contributor to Sports Law Blog, and this is my first post, where I will look at topics that involve the intersection of legal ethics and professional responsibility with sports law. For this post, what follows are my opinions about and understanding of MLB’s current PED Investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
One of the things that trial lawyers think about in regards to investigating facts is whether we can get relevant information, but also whether we can do so ethically and pursuant to applicable law, and if so, whether we can use it, i.e., is it admissible or can we use it to gain admissible evidence? The NCAA forgot this in regards to the University of Miami, and MLB has forgotten this in regards to its current PED investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
Aaron Hernandez Charged with Murder
I have a new SI column on the charges and how Hernandez might wage a defense strategy.
Breaking Down the San Jose vs. MLB Lawsuit
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| Image from SanJose.com |
As others have noted, San Jose faces an uphill battle in the lawsuit as MLB has a number of potential defenses at its disposal. The most obvious defense for MLB is its historic exemption from antitrust law. In a series of three decisions (Federal Baseball in 1922, Toolson in 1953, and Flood v. Kuhn in 1972), the U.S. Supreme Court has consistently held that federal antitrust law does not apply to professional baseball, thus apparently undermining the city's Sherman and Clayton Act claims.
In response to the antitrust exemption argument, San Jose's best hope may be to persuade the district court to follow a series of precedents from the early-1990s limiting the scope of baseball's immunity. Most notably, in the 1993 case of Piazza v. Major League Baseball, the Eastern District of Pennsylvania decided a suit similarly challenging MLB's relocation policies after the league refused to approve the proposed relocation of the San Francisco Giants to Tampa Bay. The Piazza court allowed the plaintiffs' antitrust claims against MLB to proceed despite the league's exemption by interpreting the Supreme Court's baseball trilogy as only protecting the reserve clause from antitrust scrutiny. Because major league players successfully defeated the reserve clause via arbitration and collective bargaining in the mid-1970s, the upshot of the Piazza holding was that MLB's antitrust exemption was effectively null and void.
However, as I argued in my 2010 law review article Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, the Piazza precedent is of dubious validity given that it was premised on several erroneous conclusions. Indeed, most subsequent courts considering the scope of baseball's antitrust immunity have disregarded Piazza, making it unlikely that the court in San Jose's suit will adopt such a narrow interpretation of the exemption in this case (unless, of course, the court - itself located in San Jose - is particularly motivated to allow the case to proceed to discovery and trial).
Meanwhile, although unlikely, it is also possible that MLB will decide not to assert its antitrust exemption in the case. The league has been extremely reluctant to rely on its exemption in recent antitrust cases, presumably for fear of triggering an adverse court decision limiting the scope of its immunity. Most notably, MLB did not assert the exemption as a defense in the Garber v. MLB lawsuit filed last year challenging baseball's television broadcast policies under antitrust law. Therefore, should baseball believe that it can successfully persuade the court to dismiss San Jose's lawsuit on other grounds (such as those discussed below), then the league may opt to forgo asserting the exemption in this case. However, given that control over franchise relocation is one of the two most important protections the league derives from the exemption (with the shielding of the minor league system from antitrust scrutiny being the other), San Jose's suit would appear to be a prime case for MLB to rely on its historic antitrust immunity.
In addition to the antitrust exemption, MLB can make at least two other potentially strong arguments in support of its motion to dismiss the lawsuit. Most significantly, the city of San Jose's standing to sue in the case appears to be tenuous at best. The city's complaint is based upon an option contract San Jose entered with the team in 2011, under which the Athletics have three years to purchase a parcel of land from the city for just under $7 million. However, the option contract in question does not obligate the Athletics to purchase the land, nor to relocate the team to the city even if the option were exercised. While A's owner Lew Wolff has consistently expressed his desire to move the team to San Jose, he has yet to formally commit to such a relocation, and has never suggested that he would be willing to move the team without MLB approval.
As a result, San Jose's suit poses a similar fact pattern as that litigated back in the late-1970s when the Los Angeles Memorial Coliseum first sought to attract an NFL team (following the Rams' move to Anaheim Stadium, but before the Coliseum reached its eventual agreement with Al Davis to move the Raiders to Los Angeles). Specifically, the Coliseum sued the NFL alleging that the league's relocation restrictions prevented the stadium from securing a new NFL team, thus violating antitrust law. The district court dismissed the case, however, concluding that the Coliseum lacked standing to sue. Los Angeles Memorial Coliseum Commission v. National Football League, 468 F.Supp. 154 (C.D. Cal. 1979) ("Los Angeles Memorial I"). In particular, the court held that because the Coliseum had not yet found an NFL team willing to move to the stadium, and because the league had not yet rejected any proposed relocation, there was not yet an actual case or controversy to resolve. It wasn't until Davis formally agreed to move the Raiders to Los Angeles, and the NFL officially blocked the relocation, that the Coliseum was able to move forward with its case (resulting in the so-called Los Angeles Memorial II litigation). Accordingly, given that Wolff hasn't definitively committed to moving the Athletics to San Jose, and because MLB hasn't formally rejected the proposed relocation, the court may very well follow the Los Angeles Memorial I precedent and conclude that San Jose lacks standing to sue.
Meanwhile, MLB can also argue in its motion to dismiss that San Jose's state law claims are preempted by federal law. In Flood v. Kuhn, the Supreme Court not only dismissed Flood's federal antitrust claims pursuant to baseball's exemption, but also his state antitrust claim as well. In particular, the Flood Court held that the regulation of professional baseball required national uniformity, thus concluding that Flood's state law claims were precluded by the Commerce Clause. Consequently, MLB will likely argue that, at a minimum, the Flood precedent requires that San Jose's claim under California antitrust law be dismissed (the league may also assert that some of the city's other state law tort claims -- its unfair competition claim in particular -- are similarly preempted, although that argument will likely be harder to win).
Finally, however, even if San Jose were to survive MLB's motion to dismiss, and the court allows the suit to proceed to trial, the city may still face an uphill battle in winning the suit. The Ninth Circuit Court of Appeals has held on two separate occasions that professional sports leagues' restrictions on franchise relocation do not automatically violate federal antitrust law. See Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381 (9th Cir. 1984) ("Los Angeles Memorial II"); National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562 (9th Cir. 1987). For instance, despite ultimately condemning the NFL's refusal to allow the Raiders to move to Los Angeles, the Los Angeles Memorial II court noted that several factors could potentially justify a league's decision to block a proposed relocation under antitrust law. These factors included: (i) an interest in protecting the loyalty of fans in the franchise's current home city, (ii) the maintenance of some reasonable territorial restrictions, (iii) the preservation of traditional rivalries, (iv) giving municipalities time to recoup their investments in local stadiums, and (v) maintaining a league presence in major television markets. While not all of these considerations will apply to the Athletics' proposed move, San Jose will ultimately have to convince the court that MLB's failure to approve the relocation was improper in light of the legitimate factors outlined in Los Angeles Memorial II, should the case proceed to trial.
Of course, the city probably does not intend to take the case all the way to trial. Instead, San Jose's litigation strategy likely hinges on surviving MLB's inevitable motion to dismiss and entering the discovery phase, at which point the city will have significantly increased its bargaining leverage over the league. If San Jose can get to that stage then its litigation strategy may prove fruitful. Given MLB's potential defenses outlined above, however, I suspect that the city will be unable to defeat a motion to dismiss the suit.
Update (6/27/13): Professor Ed Edmonds wisely notes in the comments that San Jose will also have to overcome the text of the Curt Flood Act of 1998 if it wishes to persuade the court to adopt the Piazza precedent limiting baseball's antitrust exemption to the reserve clause. As Professor Edmonds notes, the text of the act would appear to support a broad interpretation of the scope of the exemption.
Help Wanted: Current College Athlete to Join Plaintiffs
Where are we going? I offer big picture perspective, a solution, and immediate needs below:
Big Picture:
Joe Nocera of The New York Times takes a big picture approach to look at the impact the O'Bannon case will have on college athletics in this article titled "The Lawsuit & The NCAA." The theme continues to be, change is coming and the only question is how and when.
One Solution:
Advocating for paying college athletes, I wrote the following piece in The Boston Globe recently. Then, I offered a solution in an op-ed in The Chronicle of Higher Education by proposing the creation of a new NCAA division in this article.
Immediate Concern:
What's become apparent is that the class certification efforts--to include current college athletes as plaintiffs with former college athletes--is that Judge Wilken has indicated a willingness to certify IF a current college athlete is formally willing to participate as a plaintiff. While the plaintiffs asked if the individual could be anonymous, it appears that the answer is "no." Thus, the rights of future college athletes and the framework of this industry are seeking a courageous CURRENT student-athlete.
Andy Staples provided a great overview of the situation in Sports Illustrated with this piece titled "Current College Athlete Set to Become Face of Ed O'Bannon v NCAA." To summarize the requirements, the plaintiffs seek the following:
1. A current student-athlete in the sport of men's basketball or football;
2. Who starts at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC;
3. That gets significant screen time when his team's games are televised (i.e. a star);
4. Who has a pristine personal history;
5. Who is courageous, strong in his convictions, and intelligent.
6. And finally, someone willing to be the face of change in college athletics.
Up to the task?
Footnoting the New Jersey Sports Wagering Litigation
After losing at the District Court level, New Jersey's appeal is premised on three arguments: (i) the sports leagues lack standing; (ii) PASPA violates the 10th Amendment; and (iii) PASPA violates the principle of equal sovereignty. In support of the state's standing argument, the brief includes four footnotes. In sequential order:
Footnote #1 addresses the recurring issue of actual injury (from sports wagering) and injury stemming from the perception of game-fixing. It posits that "[a]ny perceptions of game-fixing - no less than the instances of game fixing themselves - are caused by the Leagues' own agents."
Footnote #2 flags the issue of the sports league plaintiffs holding events in Las Vegas, but not having pro franchises in the city.
Footnote #3 covers the "Sports Wagering Law's carve-out for New Jersey collegiate teams" and posits that "[t]hat exemption was included at the request of the NCAA." The emphasis in bold/italics is contained in the brief. It is not my own. Curiously, this footnote appears to be at odds with a previous report pertaining to the matter. I am unable to reconcile footnote #3 with the the statement made in the article linked in the previous sentence. As such, I am curious if the sports league plaintiffs and/or the DOJ raise this issue during oral arguments or a subsequent pleading.
Footnote #4 gets to the issue of whether PASPA confers any intellectual property right and cites the recent SCOTUS decision in Already, LLC v. Nike, 133 S. Ct. 721 (2013).
I look forward to reading the transcript of the upcoming oral argument and seeing how many of these footnoted issues are covered. My sense is that the over-under is 2.5.
Yesterday's Class Certification Hearing in O'Bannon
Steve Berkowitz of USA Today has an article this morning concerning yesterday's hearing before Judge Claudia Wilken in the O'Bannon lawsuit. Here is an excerpt:
There are some who question how it is that college athletes could possibly have a legal claim or right to the broadcast licensing revenue. Perhaps the better question is, what is it that gives the NCAA, conferences and universities the exclusive right to it? The network is the "author" (and therefore owner) of the broadcast under copyright law. The NCAA, conferences and universities receive from the networks billions of dollars and an assignment of the copyright in exchange for stadium access, and in the process they have shut the athletes out by not giving them a seat at the negotiating table with the networks. This lawsuit can be viewed as requesting or demanding a seat at the table. So what law or case precedent gives the schools the right to exclude them? What law or case precedent gives the schools the exclusive right to broadcast licensing revenue? Hint: it cannot be analogized to the professional sports leagues.
The [defendants'] lawyers also contended that various state laws and legal precedents say that athletes have no property rights for appearing in live, unscripted events – and thus have nothing that the NCAA or the schools are infringing upon when it comes to game telecasts and re-broadcasts.
That led Curtner to state that when it comes to television agreements, schools and conferences were simply "selling access" to their venues.
Wilken appeared to chuckle at the assertion, and after the hearing, Hausfeld attacked it, calling it a "significant admission or acknowledgement" by the NCAA.
"I don't know about any of the broadcasters, but I'm not sure that anyone in their right licensing mind would pay billions of dollars for an empty stadium or an empty basketball court," Hausfeld said. "You're paying for the players, you're paying for the quality of the teams that perform on those courts and in those stadiums. You want and many of the contracts require the conveyance of the name, image and likeness rights of the athletes. So I think the court understood there was a bit of foolishness in that representation."Because college athletes have never legally asserted their right to a portion of the live broadcast licensing revenue, the NCAA, conferences and universities decide on their own that they are entitled to keep 100% of the billions in annual revenues generated by simply selling to the networks access to their stadiums.
There are some who question how it is that college athletes could possibly have a legal claim or right to the broadcast licensing revenue. Perhaps the better question is, what is it that gives the NCAA, conferences and universities the exclusive right to it? The network is the "author" (and therefore owner) of the broadcast under copyright law. The NCAA, conferences and universities receive from the networks billions of dollars and an assignment of the copyright in exchange for stadium access, and in the process they have shut the athletes out by not giving them a seat at the negotiating table with the networks. This lawsuit can be viewed as requesting or demanding a seat at the table. So what law or case precedent gives the schools the right to exclude them? What law or case precedent gives the schools the exclusive right to broadcast licensing revenue? Hint: it cannot be analogized to the professional sports leagues.
O'Bannon v. NCAA: Class Certification Hearing
I have a new article for SI.com on tomorrow's class certification that breaks down what to expect and also features research on Judge Claudia Wilken. Here is an excerpt:
Also, as the O'Bannon hearing nears, there are many in-depth stories on Sonny Vaccaro, including this one in the Pittsburgh Post-Gazette by J. Brady McCollough. Here's an excerpt from One-Man Rebellion:
The 63-year-old Wilken is no stranger to this case, sports law or class certification hearings. She denied the NCAA and EA's attempts to have O'Bannon's case dismissed, though she did reject several of O'Bannon's claims in the process. On balance, her pretrial rulings have favored O'Bannon.To read the rest, click here.
Wilken also presided over a recent settlement in Pecover v. EA. In that class action, consumers sued over EA's exclusive licensing deals with the NFL, NCAA and the Arena Football League. Those deals prevented rival video game publishers from releasing their own football games with real teams and players. The case was recently settled, with EA agreeing to pay $27 million into a fund that can be claimed by consumers of EA football games. The fact that the parties reached a settlement under Wilken's watch bears notice, as O'Bannon and the NCAA could ultimately do the same.
Wilken usually certifies classes. SI.com conducted an analysis of her 29 orders on class certification from 1998-2013. It found that she denied certification only six times (21 percent), while she granted certification 18 times (62 percent) and partially granted it five times (17 percent). Keep in mind, these orders concerned facts and claims mostly dissimilar from those raised by O'Bannon. Thus they may not be accurate predictors. Still, Wilken's history is a good sign for O'Bannon.
Also, as the O'Bannon hearing nears, there are many in-depth stories on Sonny Vaccaro, including this one in the Pittsburgh Post-Gazette by J. Brady McCollough. Here's an excerpt from One-Man Rebellion:
"Mr. Vaccaro has that Magic Johnson factor, that aura about him," O'Bannon says. "I don't know if you've met Magic Johnson, but when you talk to him and meet him face to face, you feel like you're the one person that he wants to talk to at that moment. Mr. Vaccaro has that same effect. I've always felt like, when I talk to him, I'm the most important person in his life."
* * *
As the decades passed, Vaccaro became obsessed. He couldn't stomach the NCAA's transfer rules, forcing players to sit out for a year after transferring. He railed against the NBA's age limit of 19, which forced players to play one year of college basketball. The NCAA was glad to have the most talented players on campus, even for just a season.
Vaccaro's tipping point came one day when he was watching ESPN Classic and he realized that the NCAA, by licensing the rights of the games to be re-aired on the network, was able to continue making money off the players into eternity. Vaccaro felt that players should be paid residuals anytime their likenesses were used after their careers were over.
Foul up 3?
I long have been a believer in fouling up 3 in the closing seconds. Studies suggest it is advantageous, although not statistically so, at the NBA and college levels, although some studies differ.
But with the Spurs just having blown the NBA title by not fouling in that situation (much as I believe in all things Popovich, no way they bounce back from this on the road), is the consensus on this going to change?
But with the Spurs just having blown the NBA title by not fouling in that situation (much as I believe in all things Popovich, no way they bounce back from this on the road), is the consensus on this going to change?
Ignorance of the laws (of baseball) is no excuse
There has been a lot of criticism directed at umpires for not knowing the rules. But, as this ESPN feature shows, the rules can be pretty complicated and obscure. It includes a rules quiz, one of which touches on the Infield Fly Rule (I did get that one right). I got 5 out of 10.
Comments on the Redskins Nickname
The issue of the Redskins nickname seems to be hitting a boiling point right now. Here are various pieces talking about it in various contexts. I do agree with the conclusion of the last one (written as an open letter to Dan): You are going to lose this.
McCann on Slate's Hang Up and Listen
Our own Michael McCann was on Slate's sports podcast, Hang Up and Listen, talking about baseball's efforts to suspend players for PED use based on evidence provided by Tony Bosch, the former head of Biogenesis. Mike's segement starts at 17:10. Great segment.
Markel on Chad Johnson's overofficious judge
Dan Markel (Florid State), one of my co-bloggers at PrawfsBlawg, sharply criticizes the judge who rejected a plea deal and jailed Chad Johnson for 30 days for a probation violation because, when asked whether he was satisfied with his counsel, Johnson gave the lawyer a pat on the butt. Markel argues that this illustrates the way judges too-often go wild with their discretion.
NYU SportsBites: Sports, Ethics and the Law with Alan Milstein and Arthur Caplan
Sports Law Blog contributor and leading bioethics and sports litigator Alan Milstein has a terrific interview and conversation with renowned bioethicist Dr. Arthur Caplan of New York University. They discuss Maurice Clarett v. NFL, a case which Milstein served as lead counsel, doping in sports and other sports law issues. The event was hosted by the NYU Sports and Society Program.
Sports, Ethics and The Law Featuring Alan Milstein from Carbon Media on Vimeo.
Sports, Ethics and The Law Featuring Alan Milstein from Carbon Media on Vimeo.
The Little Book of Basketball Law
The book is for lawyers, law students and sports fans alike and answers questions such as “How can there be two NBA teams in one city?”, “Can the government take land from private homeowners to build a basketball arena?”, or “What rights do professional basketball players have in their own names?” by telling the stories behind the cases. It is an entertaining and informative book about basketball that relays legal decisions concerning basketball in an easy-to-relate-to manner.
Each chapter is basically a short story with the decisions as the basis for the story. It is part of the ABA's Little Book series - there is a Little White Book of Baseball Law and a Little Green Book of Golf Law.
Why the District Court's Ruling in 'Penn State' was Legally Wrong
Over at Forbes, I wrote this morning about why aspects of the U.S. District Court for the Middle District of Pennsylvania's decision in the 'Penn State' case were wrongly decided. In the article, I explain that the court made dubious presumptions that the NCAA is not a commercial actor (a longstanding mistake of the Third Circuit) and that the NCAA president's actions are not innately concerted.Here is a link to the full article, discussing both points in far greater detail.
Legal Representation in the Biogenesis Scandal
Am Law Daily has an interesting article out examining which attorneys and firms have been retained in connection with MLB's on-going Biogenesis scandal. The story also details which firms have represented the MLB Players' Association recently. It is available here.
New Sports Illustrated article: Legal Analysis of MLB Deal's with Biogenesis Director
I have a new column for SI.com on what the deal between Tony Bosch and Major League Baseball means for implicated players and how they can challenge allegations through law.
I was also on The Dan Patrick Show today to discuss this story:
I was also on The Dan Patrick Show today to discuss this story:
New Sports Law Scholarship--Pt. 3
Recently published scholarship includes:
Joe Meyer, Paying to play (somewhere else): an examination of the enforceability of athletic conferences’ liquidated damages provisions, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 107 (2013)HT to my summer research assistant, Alex Savickas, for helping me get caught up.
Mary G. Miller, Comment, The NCAA and the student-athlete: reform is on the horizon, 46 UNIVERSITY RICHMOND LAW REVIEW 1141 (2012)
Neil Millhiser and Rodney K. Smith, The BCS and big-time intercollegiate football receive an “F”: reforming a failed system, 2 WAKE FOREST JOURNAL OF LAW & POLICY 45 (2012)
Matthew Mills, Comment, There is no need to reinvent the wheel: the tools to prevent agent-related NCAA violations may already be in our hands, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 345 (2012)
Samuel Morris, Comment, FIFA World Cup 2022: why the United States cannot successfully challenge FIFA awarding the Cup to Qatar and how the Qatar controversy shows FIFA needs large-scale changes, 42 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 541 (2012)
Jack Newhouse, Book Note, Behind the curtain of baseball’s labor relations: William Gould’s Bargaining with Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 381 (2012)
Michelle Newman, Note, Foul territory: identifying media restrictions in high school athletics outside the bounds of First Amendment values, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 59 (2012)
Steven Pahushkin, Comment, Heads up! Recent federal and state attempts to address nonresident income taxation perpetuate selective enforcement and unfairness of the “jock tax”, 64 TAX LAWYER 961 (2011)
Darsh U. Patel, Wisconsin Interscholastic Athletic Ass’n v. Gannett Co.—a dollar and a stream: exclusive broadcasting license does not violate the First Amendment, 19 SPORTS LAWYERS JOURNAL 363 (2012)
Cynthia Lee A. Pemberton, More of the same — enough already!, 22 MARQUETTE SPORTS LAW REVIEW 597 (2012)
Henry H. Perritt, Jr., Competitive entertainment: implications of the NFL lockout litigation for sports, theatre, music, and video entertainment, 35 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 93 (2012)
Catherine F. Pieronek, The 2010 “dear colleague” letter on Title IX compliance for college athletic programs: pointing the way to proportionality...again, 38 JOURNAL OF COLLEGE AND UNIVERSITY LAW 277 (2012)
John W. Polonis, Comment, Stealing home in Hollywood: why the takeover of the Los Angeles Dodgers illustrates the unjust nature of Major League Baseball’s antitrust exemption, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 785 (2012)
Brian L. Porto, You’ll never work (or play) here again: a lingering question in Title IX retaliation claims brought by coaches and athletes after Jackson v. Birmingham Board of Education, 22 MARQUETTE SPORTS LAW REVIEW 553 (2012)
Erick V. Posser, Case Note, Brady v. NFL: how the Eighth Circuit “saved” the 2011 NFL season by supporting negotiation, not litigation, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 603 (2012)
Josephine R. Potuto, NCAA as state actor controversy: much ado about nothing, 23 MARQUETTE SPORTS LAW REVIEW 1 (2012)
Josephine R. Potuto, They take classes, don’t they?: structuring a college football post season, 7 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 311 (2012)
Geoffrey C. Rapp, Field of broken dreams: the quest for rule-of-law in sports litigation, Reviewing Roger I. Abrams, Sports Justice: The Law & Business of Sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 103 (2012)
Sean Rassel, The necessity for national federations to stand up for themselves, 20 MICHIGAN STATE INTERNATIONAL LAW REVIEW 797 (2012)
Louise Reilly, An introduction to the Court of Arbitration for Sport (CAS) & the role of national courts in international sports disputes, 2012 JOURNAL OF DISPUTE RESOLUTION LAW 63 (2012)
Alison Renfrew, Comment, The building blocks of reform: strengthening Office of Civil Rights to achieve Title IX’s objectives, 117 PENN STATE LAW REVIEW 563 (2012)
Ryan Reszel, Comment, Guilty until proven innocent, and then, still guilty: what the World Anti-Doping Agency can learn from the National Football League about first-time anti-doping violations, 29 WISCONSIN INTERNATIONAL LAW JOURNAL 807 (2012)
David L. Ricci, The worst form of championship, except for all of the others that have been tried: analyzing the potential anti-trust vulnerability of the Bowl Championship Series, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 541 (2012)
Robert D. Richards, When “ripped from the headlines” means “see you in court”: libel by fiction and the tort-law twist on a controversial defamation concept, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 117 (2012)
Michel J. Rockwell, Unnecessary roughness: the single entity defense and the Supreme Court’s misguided encroachment on the NFL’s consumer brand in ... American Needle, Inc. v. Nat’l Football League, 5 PHOENIX LAW REVIEW645 (2012)
Brian C. Root, Note, How the promises of riches in collegiate athletics lead to the compromised long-term health of student-athletes: why and how the NCAA should protect its student-athletes’ health, 19 HEALTH MATRIX 279 (2009)
Bobbi N. Roquemore, Comment, Creating a level playing field: the case for bringing workers’ compensation for professional athletes into a single federal system by extending the Longshore Act, 57 LOYOYLA LAW REVIEW 793 (2011)
Jason P. Rudderman, Major violations for the NCAA: how the NCAA can apply the Dodd-Frank Act to reform its own corporate governance scheme, 23 MARQUETTE SPORTS LAW REVIEW 103 (2012)
Ronald J. Rychlak, Gambling with the Bronx Bombers: betting on, against, and with the Yankees, 3 UNLV GAMING LAW JOURNAL 165 (2012)
Elliot P. Saccucci, Revisiting the NHL collective bargaining agreement: undermining the spirit of the cap, implications to the agent, and prospective remedies for the League’s consideration, 19 SPORTS LAWYERS JOURNAL 145 (2012)
Alexander M. Sanders & Katie Monoc, How baseball united America after the Civil War, 7 CHARLESTON LAW REVIEW 305 (2012-2013)
Robert T. Sharkey, Case Note, Pecover v. Electronic Arts, Inc.: should exclusive licensing agreements made by Madden NFL’s publisher be sacked by the Sherman and Cartwright Acts?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 167 (2013)
Noam Silverman, Regulation of sports agents and college football: perception or reality?, 7 FIU LAW REVIEW 187 (2011)
Christopher Smith, Comment, A necessary game changer: resolving the legal quagmire surrounding expiration of the nonstatutory labor exemption in sports, 14 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 1191 (2012)
Garrett E. Smith, Reckless golf: is “fore” the standard?, 14 T.M. COOLEY JOURNAL OF PRACTICAL & CLINICAL LAW 103 (2012)
Aaron A. Spacone, Comment, Let them train: why the Eighth Circuit’s decision to stay the injunction of the 2011 NFL lockout was incorrect, 45 CONNECTICUT LAW REVIEW 1017 (2013)
Avraham J. Sommer, The national pastime of the American judiciary: reexamining the strength of Major League Baseball’s antitrust exemption following the passage of the Curt Flood Act and the Supreme Court’s ruling in American Needle, Inc. v. NFL, 19 SPORTS LAWYERS JOURNAL 325 (2012)
Ellen J. Staurowsky, “A radical proposal”: Title IX has no role in college sport pay-for-play discussions, 22 MARQUETTE SPORTS LAW REVIEW 575 (2012)
Jeff Stone, A hidden toxicity in the term “student athlete”: stereotype threat for athletes in the college classroom, 2 WAKE FOREST JOURNAL OF LAW & POLICY 179 (2012)
Marissa D. Sunio, Comment, Saving face: protecting the rights of student-athletes and the idea of amateurism, 33 WHITTIER LAW REVIEW 431 (2012)
Zachary Swartz, Note, If it’s broken, let them fix it: why the Gebser pre-litigation notice requirement should apply to Title IX athletics lawsuits, 61 CATHOLIC UNIVERSITY LAW REVIEW 1207 (2012)
Steven J. Swenson, Unsportsmanlike conduct: the duty placed on stadium owners to protect against fan violence, 23 MARQUETTE SPORTS LAW REVIEW 135 (2012)
Ahmed E. Taha, Are college athletes economically exploited?, 2 WAKE FOREST JOURNAL OF LAW & POLICY 69 (2012)
Lance Taubin, Note, Welcome to the real 2011 NBA lockout: where owner-friendly tax provisions and non-monetized benefits color the lockout landscape, 11 CARDOZO PUBLIC LAW POLICY & ETHICS JOURNAL 139 (2012)
Christopher L. Tazzi, Note, To tax or not to tax, that is the question: searching for a solution to the increasing commercialization of intercollegiate athletics, 38 JOURNAL OF COLLEGE AND UNIVERSITY LAW 381 (2012)
Joe Trevino, From Tweets to twibel: why the current defamation law does not provide for Jay Cutler’s feelings, 19 SPORTS LAWYERS JOURNAL 49 (2012)
Lauren T. Warbington, Note, Crossing the line: the Collegiate Licensing Company’s overindulgent attempt to limit small businesses’ online marketing techniques based on frivolous claims of trademark infringement, 19 JOURNAL OF INTELLECTUAL PROPERTY LAW 517 (2012)
Andrew J. Weissler, Unasked questions: applying Title IX’s effective accommodation mandate to interscholastic athletics, 19 SPORTS LAWYERS JOURNAL 71 (2012)
John T. Wendt, Toward harmonization: British Olympic Ass’n v. World Anti-Doping Agency, 23 MARQUETTE SPORTS LAW REVIEW 155 (2012)
Jarryd Werts, Note, Ringing the bell on concussions: the rise of head injuries and cognitive decline in football players, and the NFL’s obligation to improve safety measures, 11 CARDOZO PUBLIC LAW POLICY & ETHICS JOURNAL 173 (2012)
David K. Wiggins, “Strange mix of entitlement and exploitation”: the African American experience in predominately white college sport, 2 WAKE FOREST JOURNAL OF LAW & POLICY 95 (2012)
Britton R. Wight, College football’s BCS (bowl charity system?): an analysis of the characterization of BCS bowls as public charities that receive tax-exempt status, 19 SPORTS LAWYERS JOURNAL 129 (2012)
Antonio S. Williams & Crystal T. Williams, Hitting calories out of the ballpark: an examination of the FDA’s new menu labeling laws and their impact on sports spectatorship, 25 LOYOLA CONSUMER LAW REVIEW 248 (2013)
Jennifer A. Wood, Note, A dirty game: trusting the National Hockey League to play judge, jury, and executioner, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 179 (2012)
Julie G. Yap, Pay or play?: why requiring notice and an opportunity to cure in claims for money damages best serves the compliance goals of Title IX, 22 MARQUETTE SPORTS LAW REVIEW 517 (2012)
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