Harlem Ambasadors sue Harlem Wizards over LaMarvon Jackson

Back in 2006, we blogged about the Harlem Ambassadors taking on the Harlem Globetrotters in an FTC complaint over the Globetrotters'"use of arenas" clauses that allegedly prevented the Ambassadors from playing in certain arenas.

Six years later, the Ambassadors are back in sports legal news.  This time they have filed a lawsuit against the Harlem Wizards over the Wizards allegedly trying to sign LaMarvon Jackson, who the Ambassadors say was under contract to play for them.  The 6'6 Jackson didn't exactly have a big impact as a college basketball player -- he averaged just 1 point per game over two seasons at the University of Arkansas Little Rock from 2007 to 2009 -- but has apparently became a coveted professional comedy basketball player.  Or at least one worthy of filing a lawsuit.

Here is an excerpt from the Ambassadors' press release on the lawsuit:

HARLEM AMBASSADORS FILE SUIT AGAINST HARLEM WIZARDS

Complaint against comedy basketball competitor is no laughing matter

* * *
 

The complaint, filed in DuPage County, Illinois Circuit Court, alleges that the Harlem Wizards tortiously interfered with a contractual relationship between the Harlem Ambassadors and a basketball player, LaMarvon Jackson.

“Just like a referee decides who’s playing fair and who’s breaking the rules on the basketball court, we need the court to make a similar determination,” said Dale Moss, President of the Harlem Ambassadors.  He added that “our goal is to protect the sanctity of our performer agreements.”  The Ambassadors are seeking more than $70,000 in general contract and punitive damages.

Both Harlem Ambassadors, Inc. and Harlem Wizards Entertainment Basketball, Inc. are independent professional basketball organizations and neither is affiliated with a league.  “If this were a league matter, the issue is so clear and so simple that a wise commissioner would resolve this in minutes,” observed Moss.

An aside: for law students looking for paper/journal topics, exhibition/comedy basketball could have some fertile legal ground to explore.

UPDATE:  Dale Moss, President of the Harlem Ambassadors, emails me with a "photo of Jackson in Ambassadors uniform, which we will prove is the rightful uniform."  Here it is:

Harvard law School Sports Law Symposium on March 23

I'm looking forward to joining many others for what should be a fantastic symposium at Harvard Law School on Friday, March 23.  Here are the details:

Spring 2012 Sports Law Symposium - Friday, March 23, 2012

Professional Sports in America:

Labor Peace BUT...

Harvard Law School

Friday, March 23, 2012

9:30am-6:00pm

OVERVIEW

Harvard Law School’s Committee on Sports and Entertainment Law will host the 2012 Sports Law Symposium on Friday, March 23, 2012.  CSEL’s 2012 Sports Law Symposium will focus on the legal and business issues surrounding the recent collective bargaining disputes in the three major leagues and the issues that must still be worked out.  The overarching theme of the symposium will be:“Professional Sports in America: Labor Peace BUT...”

The event is free and open to the public.

SYMPOSIUM SCHEDULE

9:00 – 9:30 am	Continental Breakfast	Ames Courtroom
9:30 – 10:45 am	NBA Collective Bargaining Panel	Ames Courtroom
11:00 am – 12:15 pm	NFL Collective Bargaining Panel	Ames Courtroom
12:30 – 1:45 pm	The Concussion Crisis in Professional Sports and Presentation of the Professor Emeritus Paul Weiler Scholarships and Writing Prize	Ames Courtroom
2:00 – 3:15 pm	MLB Collective Bargaining Panel	Ames Courtroom
3:30 – 4:45 pm	Performance Enhancing Drugs Panel	Ames Courtroom
5:00 – 6:00 pm	Keynote Speech	Ames Courtroom
6:15 – 8:00 pm	Symposium Reception	Austin Rotunda

PANEL AND PANELISTS OVERVIEW*

 *Panel Compositions subject to change

KEYNOTE SPEAKER – TBA

PANEL #1 - NBA COLLECTIVE BARGAINING PANEL

This year saw the NBA season cut short by failure to reach agreement on a new Collective Bargaining Agreement between the NBAPA and the League.  While an agreement was reached, labor peace is by no means assured.  With negotiations recently completed in the NFL and upcoming in the MLB, collective bargaining remains an important topic.  With representatives from the NBAPA, the NBA, and third parties, this panel will explore the major bargaining difficulties each party faced, how agreement was finally reached, and what might lie ahead for labor relations in the three major leagues.

• TIME: 9:30-10:45am (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Michael McCann (Professor of Law Vermont Law School, SI.com, NBA TV Legal Analyst)
• Mike Zarren, Esq. (Boston Celtics Assistant General Manager and General Counsel)
• Yared Alula, Esq. (NBAPA Counsel)
• Jeff Mishkin, Esq. (Skadden Arps, former NBA EVP and Chief Legal Officer)
• Darren Heitner, Esq. (Wolfe Law Miami, P.A./CEO Dynasty Dealings, LLC)

PANEL #2 - NFL COLLECTIVE BARGAINING PANEL

Over the course of this past summer, thirty-one NFL team owners and the NFL Players’ Association (NFLPA) agreed to a new 10 year Collective Bargaining Agreement.  This panel endeavors to elucidate the issues regarding rookie and retiree benefits that the new agreement has not sufficiently addressed. In the case of the former, the new wage scale forecloses any possibility of a number 1 draft pick reaching a deal that remotely resembles what Sam Bradford (the number 1 draft pick for the 2010-2011 season) had been able to  secure: a six-year, $78 million deal. In the case of the latter, the settlement of the Carl Eller suit filed by retired players following the adoption of the new agreement has led many retired players to believe that they have been left out in the cold. 

A number of retired players along with draft eligible prospects not covered by the previous CBA, led by former Hall of Famer Carl Eller, had filed a class action antitrust suit against the NFL (Eller v. NFL) on the following grounds:

·       The NFLPA intentionally bargained for terms that contravened the rights of retired players against the NFL; and

·       The NFLPA failed in their “fiduciary duty” to retired players by bargaining for current players’ rights at their expense.

Given that the District Court consolidated the retirees’ class action lawsuit with Brady v NFL, the players’ class action antitrust lawsuit against the NFL following the decertification of the Players’ Association, and the suits were dismissed once the NFL and the NFLPA reached an accord, this issue remains unsettled at this time.   Not only will this panel will discuss the aforementioned open items, this discussion will also look back at the issues that led to the newly adopted CBA.

• TIME: 11:00am-12:15pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Glenn Wong (UMass Isenberg School of Management)
• Professor Matt Mitten (Professor of Law Marquette University Law School, Director National Sports Law Institute)
• Professor Patrick Rishe (Forbes.com Contributor, Associate Professor Webster University)
• Jeff Pash, Esq. (EVP and General Counsel NFL)
• Pete Kendall (NFLPA permanent player representative)
• Joe Nahra, Esq. (CAA Bussiness & Legal Affairs Attorney, NFLPA Staff Counsel)

PANEL # 3 - THE CONCUSSION CRISIS IN PROFESSIONAL SPORTS

 The mission of the Sports Legacy Institute is to advance the study, treatment and prevention of the effects of brain trauma in athletes and other at-risk groups.  SLI was founded on June 14, 2007 by Chris Nowinski and Dr. Robert Cantu in reaction to new medical research indicating brain trauma in sports had become a public health crisis.  SLI has formalized groundbreaking neuropathological research by partnering with Boston University School of Medicine to form the Center for the Study of Traumatic Encephalopathy.  SLI Co-Founder and Medical Advisory Board chair Dr. Robert Cantu and other panelists will discuss SLI’s research and address the concussion crisis as it relates to the NHL.  Professor Carfagna will also present Professor Emeritus Paul Weiler Scholarships and Professor Emeritus Paul Weiler Writing Prize at this time. 

• TIME: 12:30-1:45pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Peter Carfagna (Lecturer on Law Harvard Law School, Chairman/CEO Magis LLC)
• Tim Fleiszer (Representative Sports Legacy Institute, Partner at Gil Sports Management)
• Mark Moore (Author, Saving the Game)
• Dr. Robert Cantu, MD. (Clinical Professor of Neurosurgery at BUSM, Co-Director of the Center for the Study of Traumatic Encephalopathy, Co-founder and Medical Advisory Board Chairman Sports Legacy Institute)
• Dr. Judith Edersheim, Esq. MD (Assistant Clinical Professor of Psychiatry Harvard Medical School, Co-Director of the Center for Law, Brain and Behavior)

PANEL #4 - MLB COLLECTIVE BARGAINING PANEL

While the NFL and NBA collective bargaining disputes led to litigation and cancelled games, on November 22, 2011 Major League Baseball and the Major League Baseball Players Association announced that they had reached a new collective bargaining agreement without any missed games or practice time.  The agreement allows play to continue without interruption through the 2016 season, and the end of the agreement will mark 21 years without a strike or lockout.  This panel will explore the reasons MLB has been able to maintain labor peace for such an extended period of time and discuss issues that may threaten this peace in the future. 

• TIME: 2:00-3:15pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Lisa Masteralexis (Department Head, Mrk H. McCormack Department of Sport Management at UMass Amherst)
• Paul Mifsud, Esq. (Senior Counsel MLB)
• Damon Jones, Esq. (Washington Nationals General Counsel)
• Mary Braza, Esq. (Foley Lardner)
• Matt Nussbaum, Esq. (MLBPA Assistant General Counsel)

PANEL #5 - Performance Enhancing Drugs

Performance Enhancing Drugs have been getting a lot of attention lately throughout professional sports. They caused arguably the biggest scandal in Major League Baseball history and the issue still rears its ugly head every time Hall of Fame ballots are cast. That problem will only grow in significance as the all-time homerun leader and several other top players of the '90s and 2000s approach eligibility. Baseball isn't the only sport that's been rocked by steroids recently, and in every sport dealing with them a similar set of legal and regulatory issues arises: how should the sport regulate their use ex ante? How should the sport's authorities punish those who break the rules? What is the appropriate role of the government, if any? What role should the courts take in hearing suits brought by aggrieved players claiming false accusations or faulty tests? Our panel will explore these issues from the perspectives of several different professional sports and several different positions within the sports world.

• TIME: 3:30-4:45pm (Ames Courtroom)
• PANELISTS:
• Moderator: Professor Warren Zola (Assistant Dean for Graduate Programs, Carroll School of Management at Boston College)
• Bob Arum, Esq. (Founder and CEO Top Rank Promoting)
• Adolpho Birch, Esq. (Sr. Vice President of Law & Labor Policy NFL)
• George Hanna (Senior Director of Investigations MLB)
• Dan Mullin (Vice President and Director MLB Department of Investigations)
• David Cornwell, Esq. (DNK Cornwell)

Ryan Braun and Proceduralism

Emily Bazelon has an essay at Slate framing the decision overturning Ryan Braun's suspension in the context of the (somewhat unique) U.S. emphasis on procedural rights even in the face of substantive guilt. The media and public discussion of the Braun case in the next few days will illustrate how the public at large internalizes (or doesn't internalize) concerns for procedural justice.

I’m Begging You for Mercy

As the hit song by Duffy goes:

You got me beggin' you for mercy
Why won't you release me
You got me beggin' you for mercy
Why won't you release me
I said release me

Deep in the middle of the 426 pages that comprise the 2011-12 NCAA Division I Manual is Bylaw 13.1.1.3 entitled “Contacts & Evaluations: Four –Year College Prospective Student-Athletes” which reads:

“An athletics staff member…shall not make contact with the student-athlete of another NCAA collegiate institution…without first obtaining the written permission of the first institution’s athletics director to do so…regardless of who makes the initial contact.”

The result is that while coaches are free to enjoy free agency and jump from school to school at will, a student-athlete needs permission from his or her school’s athletic department before a conversation with another school is allowed.

If the request for contact under Bylaw 13.1.1.3 is granted, the student-athlete may transfer, accept a scholarship, and compete immediately. If the request is denied, the student-athlete is free to transfer to another institution but must do so without any contact with the athletic department or any form of athletic scholarship. After transferring, after one calendar year the student-athlete may accept a scholarship and compete.

Additionally, further restrictions are placed on individuals in the sports of baseball, basketball, football, and men’s ice hockey in Bylaw 14.5.5.2.10 entitled “One-Time Transfer Exception.” Under this rule, even if a student-athlete is granted permission to transfer, they must sit one year before being able to compete in these sports unless granted an additional release from his or her initial institution. Permission is therefore required for an immediate scholarship and the right to compete—the problem is that this permission is often withheld and the process to challenge a denial flawed.

These restrictions are intended to curtail the free movement of student-athletes. Typically, schools allow their student-athletes the ability to compete immediately if the transfer is based on personal hardship (returning home to care for a sick relative) or if the student-athlete has graduated and intends to pursue graduate work at a school that offers graduate coursework in a field that the initial school does not.

The basic concept, rooted deep into the NCAA rules and codified in the National Letter of Intent (NLI) that every student-athlete signs, is that the student commits to an institution not a coach. While coaches may make promises about building something together and partnership for the future with a recruited student-athlete, when recruiting a student-athletes these promises are, under the NCAA rules, unenforceable and irrelevant.

Undoubtedly written by lawyers, there is a semblance of due process in both transfer bylaws which provides a student-athlete, denied the transfer request by his or her institution, the right to a hearing. The rules read, in part, that the student-athlete may be “provided a hearing conducted by an institutional entity or committee outside of the athletic department.”

To summarize: the NCAA rules, written by schools claiming to protect the best interests of student-athletes, allow coaches to move about at will but student-athletes need permission to do so. Certainly schools may limit coaching movement by attempting to enforce employment contracts but there has been limited success in the court system in this regard.

For three recent examples (The University of Maryland, Kansas University, and Saint Joseph's University) along with my recommendations, check out the full article at the Huffington Post.

Why is it so hard for NCAA athletes to transfer?

Warren Zola will have a column on this topic in the coming days, but in the meantime, the New York Times examines NCAA rules for colleges when players seek to be released from their scholarship and transfer schools.  Adam Himmelsbach interviews several people for the story, including yours truly, and it comes in the wake of Danny O'Brien and Todd O'Brien's difficulties in leaving one school to play for another.  Compare how student-athletes looking to transfer are treated with other students who seek transfer from one school to another for academic (or other) reasons.

West Virginia and the Big East Break-Up on Valentine’s Day

Valentine’s Day 2012 marked the end of the twenty-one year relationship between West Virginia University (WVU) and the Big East Conference, and while no love was lost, the parties did manage to reach a settlement agreement. The agreement settled both the lawsuit that WVU filed against the Big East at the end of October 2011 in West Virginia and the Big East’s subsequent countersuit filed against WVU less than a week later in Rhode Island. WVU sued the Big East claiming breach of fiduciary duty and the Conference brought an action claiming that WVU breached its contractual obligations to the Big East.

The settlement agreement enumerates the terms of payments to be made and requirements to be fulfilled by both parties. When WVU announced it was leaving the Big East in October 2011, it initially paid the Big East $2.5 million, only half the amount of the buyout that was stipulated in the Big East bylaws at the time. However, this buyout amount was subsequently raised to $10 million, as the Big East sought to inoculate itself from further conference poaching. The agreement calls for WVU to pay the Big East a lump sum of $8.5 million, much of which will likely come from University donors by way of the WVU Foundation, a private fundraising organization that recently set up a “Big 12 Transition Fund.”

The agreement also provides that a “Forecasted Amount” of $9 million will be forfeited by WVU, with the Big East paying WVU any amount that it is entitled to receive from 2011-2012 Conference revenues beyond that $9 million figure. The settlement also sets forth numerous other terms and conditions, including review and mutual agreement on the terms of a financial reconciliation report to be composed by the Big East at the end of the fiscal year. WVU will be required to pay any additional amounts owed to the Conference to effectuate its full release.

WVU certainly encountered several obstacles on its path to the Big 12, but it will now officially become a member of the Conference as of July 1, 2012 (pending its compliance with the settlement agreement). While this particular suit has been resolved, its precedential effect bears monitoring. Following the settlement, the Big East released a statement that reads, in part, “West Virginia University has acknowledged and agreed that the Court in Monongalia County, West Virginia, will enter a judgment that the Big East Conference Bylaws are valid and enforceable, and will dismiss with prejudice all of West Virginia’s claims against the Conference.”

However, the West Virginia Court only recognized the validity of the bylaws as part of the consent decree it issued as a result of the parties’ settlement. This recognition is not a binding declaration that every provision of the Big East bylaws is valid and enforceable against remaining members. This could leave the Big East vulnerable should another university follow in WVU’s footsteps and challenge the Conference in court. For a conference that has been particularly susceptible to departures during this recent phase of realignment, the financial settlement with West Virginia may prove illusory its ongoing pursuit of stability.

Certainly, Syracuse University and the University of Pittsburgh are watching closely as institutions leaving the Big East for the Atlantic Coast Conference (ACC), but as of now, both the Orange and the Panthers have pledged to wait the full twenty-seven months (pursuant to Big East bylaws) prior to joining the ACC, which would be the 2014-2015 season. While the Big 12 enjoys a greater individual member payout than the ACC (currently, approximately $15 million versus $13 million), the “lame duck” status and monetary gains in a move to the ACC (current Big East payout is approximately $3 million for football members*) may prove too great a temptation for the Mountaineers' former Big East brethren.

*Note that these figures are through 2013, and Big East basketball/non-football schools receive an even smaller television payout, but that this amount will assuredly go up as the market dictates despite the departure of WVU, Syracuse and Pitt.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their assistance on this piece.

Cardozo Law Symposium: Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics

On Thursday,  March 8 the Cardozo Journal of International and Comparative Law will host a symposium titled Amateur Athletics, Professional IP: Sponsorship, Surveillance, and the London 2012 Olympics. Anyone can attend this free symposium (and if you plan on attending, please be sure to RSVP to the Symposium Editor, Wells Crandall, at richard.crandall@law.cardozo.yu.edu by March 4).  Attorneys will receive 1.5 hours of transitional/nontransitional professional practice CLE for each session they attend. 

I'm honored to be a panelist.  Here is the schedule:

8:30 AM - 9:00 AM - Breakfast

9:00 AM - 10:30 AM - Panel on surveillance at the Olympics

• Michael Drury, of Burton Copeland.  Mr. Drury is a barrister in England who works on surveillance law.  His prior post was General Counsel to the GCHQ, which stands for "Government Communications Headquarters," which is an intelligence agency in the U.K., and is akin to the NSA. 

• Pete Fussey, Sociologist and Criminologist.  He wrote "Securing and Sustaining the Olympic Games." He has in depth knowledge of the surveillance developments in Britain and how Britain has developed quite a bit of surveillance.  

10:30 AM - 10:45 AM - Break, snacks provided

10:45 AM - 12:15 PM - Panel on brand protection at the Olympics

• Michael Kuh, associate at Latham and Watkins, who was on the Legal Advisory Group for New York's bid to the International Olympic Committee.  More recently, he worked on USA bid to host the 2022 World Cup.    

• Michael McCann, Sports Law Institute director at Vermont Law School and Legal Analyst at Sports Illustrated.  He wrote As Super Bowl week commences, NFL's clean zones still an issue for Sports Illustrated last month and is an expert on consumer, antitrust and sports law issues.

• Ben Sturner, CEO of the Leverage Agency.  He is a sports marketing agent who has 11 agents working for him.  His business is marketing brands during sports events.  He has attended six Olympics in a work capacity.  Notably, he was involved with attempting to sell the naming rights to the "Bird's Nest" in Beijing (see WSJ article here). 

12:15 PM - 1:15 PM - Lunch

UC Davis School of Law to host Scott Boras

UC Davis School of Law’s Entertainment and Sports Law Society presents “Negotiating the Largest Contracts in Sports History” with Professional Baseball Attorney Scott Boras on Monday, February 27 from 3:30pm – 4:30pm at the UC Davis ARC Ballroom.

Named the “Most Influential Non-Player in the Last 25 Years” by Baseball America, Mr. Boras has negotiated many record-setting Major League Baseball contracts since 1982. Many of his former and current clients, including Alex Rodriguez, Barry Bonds, Barry Zito, Prince Fielder, Manny Ramirez, Greg Maddux, Mark Teixeira, Matt Holiday, Jason Werth, and Carlos Beltran are among the highest paid in the game. Do not miss this once in a lifetime opportunity to hear directly from one of the most powerful and innovative people in the world of professional sports.

Admission is free and open to the public. A brief Q&A session will follow the event. To RSVP and for more information, please visit this link.  

A higher-profile fan ejection

Deadspin reports  that former NBA and North Carolina State star Tom Gugliotta was ejected from his courtside seats during today's N.C. State loss to Florida State. The piece links to several of my past posts on cheering speech (Sports Law Blog gets results!). N.C. State is a public school, although I am not sure of the status of the off-campus RBC Center in which the Wolfpack plays (the piece describes it as a public corporation, although I'm not sure what that means).

Since ejecting a former NBA star and one of the better players in State's history is going to get more attention than ejecting a snotty 20-year-old undergrad, it will be interesting to see if and how this plays out.

The State of Sports Law - University of Virginia School of Law

The University of Virginia School of Law is pleased to present a symposium on the current state of sports law, hosted by the Virginia Sports and Entertainment Law Journal and the Virginia Sports Law Society. The event takes place on March 16, 2012 from 8:00AM to 5:00PM. Complete details can be found here. An overview of the panels (and keynote speaker) is below:

Panel 1: NCAA Conference Realignment

As NCAA conferences realign in pursuit of the funding bonanza available from television contracts, the potential gap between the "haves" and the "have nots" continues to grow. This panel discusses the competitive impact that this discrepancy may have on those colleges and universities that are not invited to join the "super conferences." This panel explores the antitrust concerns that may arise and examines the role of Congress and the NCAA in regulating the conferences.

Panelists:

· Christian Dennie, Barlow Garsek & Simon

· Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

· Bernadette McGlade, Atlantic 10 Conference Commissioner

· Moderated by J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

Panel 2: Legal Implications of Financial Distress in Professional Sports

As professional sports teams encounter financial hardship, conflicts in control arise. This panel explores the level of oversight that bankruptcy courts have over professional teams in the midst of financial distress and how that oversight may conflict with the power of commissioners to regulate the sport. Financial distress may lead the team to seek relocation. This panel examines the use of antitrust laws to secure the ability to relocate a franchise over league objection and the potential for expansion in the major sports leagues.

Panelists:

· Mark Levinstein, Williams & Connolly

· Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

· Tom Ostertag ('81), Senior Vice President and General Counsel, Major League Baseball

· Moderated by J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

Keynote Address: DeMaurice Smith

DeMaurice Smith ('89), Executive Director of the National Football League Players Association, will offer his insider's view of the NFL's 2011 lockout. He will focus on the labor and legal issues surrounding the negotiation of the new ten-year Collective Bargaining Agreement with the League.

Panel 3: Amateurism and the Student Athlete

Student athletes generate billions of dollars in revenues for their colleges and universities yet they share minimally in the financial spoils. Is this a wrong to be righted and if so, how? This panel debates the role of the student athlete as an amateur or an employee and the ramifications of the designation. This panel explores whether the student athlete should be compensated and whether an education is adequate consideration for the revenue he or she helps to generate. Also, this panel examines who controls the revenue stream and what role the student athlete should have in that determination.

Panelists:

· Christian Dennie, Barlow Garsek & Simon

· Roscoe Howard ('77), Andrews Kurth and Member of the NCAA Division I Committee on Infractions

· J. Gordon Hylton ('77), Professor of Law, Marquette University Law School

· Alan Milstein, Sherman Silverstein

· Rob Slavis, Assistant Athletic Director, University of Virginia

· Moderated by Michael McCann ('02), Professor and Director of the Sports Law Institute, Vermont Law School

 
Panel 4: Sports Law Analytics

As popularized in Michael Lewis’s best-selling book Moneyball and a 2011 Hollywood movie of the same name, the sports industry has firmly embraced the use of statistics, economics, and mathematics (collectively “analytics”) in various decision-making processes. Such analytics have similarly been adopted in the sports law field. This panel discusses how analytics are used in areas such as talent identification, contract negotiation, gambling corruption prevention, and antitrust litigation

Panelists:

· Robert Forbes ('07), Proskauer Rose

· Ryan Rodenberg, Professor, Florida State University

· Kelly Wilson, Assistant Counsel, Under Armour

· Moderated by Thomas Nachbar, Professor of Law, University of Virginia School of Law

Violence and Aggression in Sporting Contests

There is a new book, "Violence and Aggression in Sporting Contests: Economics, History, and Policy" edited by Todd Jewell, that may be of interest to some Sports Law Blog readers. The table of contents can be found here. While several chapters are largely doctrinal, most include math-heavy econometric analysis to complement the more descriptive sections.

The introductory chapter by Todd Jewell, Afsheen Moti, and Dennis Coates provides a fascinating history lesson about the overlap between violence/aggression and spectator sports.

Dave Berri and I wrote a chapter that includes a meta-analysis of NBA referees as regulators and a statistical look at the efficacy of the so-called "Hack-a-Shaq" strategy.

The book is part of the "Sports Economics, Management, and Policy" series edited by Dennis Coates. Additional books in the series can be found here.

NCAA "Justice"?

In recent months, New York Times op-ed columnist Joe Nocera, has been on a screed against the National Collegiate Athletic Association and its’ so called “justice” system. Nocera’s recent series of critical commentary focuses primarily on the NCAA’s failure to provide athletes an opportunity to answer charges levied against them by NCAA officials in contravention of America’s fundamental principle of “innocent until proven guilty.” Nocera highlights that the NCAA system of accusations and investigations is more akin to "guilty until proven innocent"and is a far cry from any generally accepted due process standard. According to Nocera, because the NCAA dictates college athlete’s eligibility with such fervor, it consistently hammers the due process rights of athletes by accusing them of fairly insignificant charges without giving the players any real opportunity to dispute the charges, many of which are based on incomprehensible and petty rules.

For example, Nocera writes about Temi Fagbenle, a female basketball player at Harvard that the NCAA forced to forfeit a year of eligibility because she repeated her junior year of high school after transferring from England. Had she started high school in America and repeated or stayed in England and finished high school there, she would have been fine. Nocera also examines the case of Ryan Boatright, a men's basketball player at University of Connecticut. Boatright has had to endure intense pressure (and suspension) from the NCAA while it examined the “suspicious” circumstances that surround his single mother – including her receiving money from friends for Christmas. How can children be punished for the deeds of their parents — deeds that aren’t even wrong in any basic legal sense?,” writes Nocera.

The NCAA claims it has an effective judicial process. Nocera challenges this claim in his string of articles that highlights that the NCAA cares little about an individual athlete and the repercussions an investigation will have on his or her future, when it believes that one of its rules has been broken. Nocera believes that the NCAA is out-of-control because it refuses to allow basic due process rights to the student athletes of its member institutions following an accusation of wrong doing.

Sport and Recreation Law Association Conference

The conference program for the upcoming Sport and Recreation Law Association (SRLA) conference is now posted. SRLA's annual event will be held March 1-3, 2012 in Greensboro, North Carolina.

José Veras - Milwaukee Brewers Hearing Today

The Milwaukee Brewers and José Veras held their arbitration hearing today in St. Petersburg. This marks the sixth hearing of the year, and the teams are ahead 3-2. The Brewers have only had five hearings in their history. They lost to Corey Hart in 2010 and José Mercedes in 1998. The Brewers defeated Mike Fetters in 1994 and Jim Gantner in 1991. The panel at today’s hearing was Dan Brent, Marlene Gold, and John Sands according to Associated Press reports. According to my research, Dan Brent has participated in 16 panel decisions, and those panels have decided 12 of the 16 for teams. Brent’s most recent panel was Brian Brunney’s 2010 loss to the Washington Nationals. For Marlene Gold, this is her first baseball salary arbitration experience. For John Sands, a member of the Corey Hart panel in 2010 with Elizabeth Neumeier and Sylvia Skratek, this is his fifth panel decision. Sands also was a solo arbitrator in four decisions. He decided three of those for teams (Tony Tarasco-Orioles-1998, Zane Smith-Braves-1988, and Darryl Motley-Braves-1987). Tarasco was actually waived in March 1998 and picked up by the Cincinnati Reds. Ron Darling won his 1987 hearing with the Mets.

Veras pitched in 79 games last year for the Pirates, and he led the team in appearances. He was traded to the Brewers by the Pirates for Casey McGehee, one of only five undecided cases left in this year’s arbitration pool. Veras had a 3.80 ERA. The team offer was $2,000,000 and the player’s request was $2,375,000. That left a midpoint of $2,187,5000. Veras was paid $1,350,000 in 2011. I am a bit surprised that the Brewers did not find common ground with Bryce Dixson, Veras’ agent, because of their strong preference towards avoiding hearings.

The end of football?

Tyler Cowen and Kevin Grier have a piece at Grantland that hypothesizes how professional football may end as a major American professional sport under the weight of a worsening concussion crisis. They argue that the "collapse of football is more likely than you might think. . . . Once you start thinking through how the status quo might unravel, a sports universe without the NFL at its center no longer seems absurd." They also argue that the economic consequences will be minimal at the national level, although harsher at the local level in small markets (e.g., Green Bay) that only have professional football.

I agree with the basic point of the piece. I am not sure how long football can continue as it currently is played (and I say that as a big fan). It is not just about "hits to the head" and concussions. The irreducible element of the game is for incredibly large, incredibly athletic, and incredibly fast-moving men to run into one another at full speed. It is simply not possible for serious long-term healt problems to result, no matter the evolution in equipment (which the NFL promoted in a Super Bowl ad this year). All the conversations about player safety seem to ignore that modern players are significantly larger than they were 20 and certainly 50 years ago, but that they're also signficantly faster, quicker, and more agile. If F = M x A, then players today are hitting and being hit with significantly more force than 20 or 50 years ago. Neither eliminating helmet shots nor improving helmets can change that.

This doesn't mean football is going away, just that it is going to become less important to our sports culture. The chain they describe looks something like this: As fewer high schools and colleges have football programs in light of the medical evidence (and probably some large liability judgments), more and better athletes will be drawn to other sports, leaving football with less talent, less money, less cultural and media presence, and, ultimately, more of a niche place in the sports landscape.

It's an interesting take on the issue. There is historical precedent--look at boxing and horse racing.  And their broader point is not so much predicting football's demise as suggesting what could happen if things play out a certain way (mostly because of the medical, and subsequent legal, issues) and the status quo unravels. And who better than economists to follow the logical trail . . .

Key Legal Lessons from the NBA and NFL Lockouts

I'm honored to be a panelist at this year's MIT Sloan Sports Analytics conference (see previous post).  I'll be on the Building the Modern Athlete: Performance Analytics panel.

I have a column for the conference titled Legal Lessons from the NBA and NFL Lockouts.  Here are a couple of excerpts:

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Part of the explanation for the “better” behavior of teams than their leagues and players’ associations may rest in operational objectives. While leagues and players’ associations are motivated primarily by business and legal considerations, teams are motivated most by competitive considerations. To be sure, leagues “compete” with other leagues, and more generally with other entertainment providers, for fans’ interest and dollars. And players’ associations compete with other players’ associations for most effectively representing their membership. But teams compete with each other every day and are better candidates to utilize analytics and other optimizing approaches. .....

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One caveat: if the NHL locks out its players later this year and if the NHLPA decertifies — which means that each player becomes independent and can file litigation in a court nearby where he plays — expect the players to file antitrust litigation in a federal court in California or Arizona. Both states have NHL teams, meaning the league has sufficient nexus to each state to defend itself in court. More importantly, both states are governed by the U.S. Court of Appeals for the Ninth Circuit, which is regarded as more pro-labor than other federal circuits and which may embrace a view of the Norris-LaGuardia Act favorable to players. It is also possible NHL players could file litigation in Canada, which features stronger labor laws.

The NHL, for its part, would probably seek to move any litigation to New York, where league headquarters are based and where case law from the U.S. Court of Appeals for the Second Circuit is favorable to its interests. The league might instead seek to defend itself in Minnesota or Illinois, both of which are states governed by the U.S. Court of Appeals for the Eighth Circuit, which ruled in favor of the NFL. ...

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To read the rest, click here.

Orioles Defeat Bergesen and Marlins Lose to Bonificio

In a story of teams with two dramatically different success/failure stories in baseball salary arbitration, the Orioles improved their all-time record to 12 wins and 3 losses, and the Marlins dropped to 3 wins and 7 losses. The Orioles defeated pitcher Brad Bergesen today, and the Marlins lost to Emilio Bonifacio yesterday. The Marlins 2 losses are the only two player victories of the 5 decisions to date. Mark Burstein, Robert Herzog, and Elizabeth Neumeier decided the Orioles-Bergesen case. The Marlins-Bonifacio panel was Burstein, Sylvia Skratek, and Steven Wolf. Burstein is now 1-1 in panel decision after his first two arbitration hearings. Herzog has participated in 6 panel decisions, and the teams have won 4 and lost 2. Elizabeth Neumeier’s log is now 18 team wins and 11 player wins.

Should home schooled children be able to play public school sports?

I have an op-ed for the NY Times on whether home schooled students should be able to play public school sports. Virginia is considering such a law, and 13 states -- including Florida, where home schooled Tim Tebow grew up and played high school sports -- have enacted such laws, but most states say no. I say yes.  Here's an excerpt:

Critics of home-schooled children playing public school sports also worry about public school students losing roster spots on teams to home-schooled children who are better athletes. I find this criticism to be unpersuasive. From at least the high school level on, coaches try to assemble the best teams, which normally means finding the best players, regardless of their backgrounds. Provided the available athletes meet the requisite academic criteria, coaches should be able to pick the best of the bunch.

To read the rest, click here.

Legal Implications of playing beer pong at a bar and then getting injured outside bar

I'm not sure if beer pong is a "sport", thought it is on TV and Rick Reilly clearly thinks it is. Plus, as we discussed before, spelling bees seem to be sporting events.  If a spelling bee is a sport, how could a beer pong match not be?

In any event, for all the beer pong players out there -- if you get drunk playing beer pong at a bar and then get injured outside the bar because you're drunk, one judge in NYC says you can't sue the bar. You've assumed the risk:

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In a decision made public yesterday, Manhattan Supreme Court Justice Lucy Billings threw out Alan Berger’s lawsuit against Wicked Willy’s on Bleecker Street, finding he’d signed up for the fast-paced beer-drinking game of his own free will.

“Despite the game tables, cups and alcohol [that the] defendant bar made available to plaintiff and other bar patrons without serving the alcohol or monitoring its consumption, plaintiff voluntarily engaged in the drinking game” and “consumed alcohol to the point of diminished capacity,” Billings wrote.

Berger was 22 in June 2009, when he got into a heated 3 1/2-hour match with friends playing the game, the object of which is to bounce a pingpong ball into another player’s cup and get them to drink, court papers say.

He took a bus back to New Jersey after the game and was still so drunk he tried to cross Highway 9 near Manalapan and got hit by a car going 50 miles an hour, said his lawyer, Michael Wiseberg.

Berger suffered numerous injuries, including a broken hip, leg and foot, tears in both his knees, and a lacerated liver, the lawyer said. When his blood was checked at the hospital about four hours after he left the bar, his blood alcohol content was .26 — almost four times higher than the legal driving limit.

His suit charges that the bar should have been monitoring the game to make sure players weren’t getting visibly drunk.

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To read the rest from the NY Post, click here.

If you let me play . . .

My late father-in-law (who lived his adult life surrounded by a wife, two daughters, two granddaughters (although one grandson), and string of female cats) used to say he did not really become an impassioned feminist (although he had always supported women's rights) until he had daughters and the demand that women and girls get fully equal opportunities came home.

Last Wednesday was National Girls and Women in Sports Day, whose celebratory purpose is obvious, particularly in this, the 40th anniversary of Title IX. Yesterday, the University of Miami sponsored a girls' sports clinic, featuring stations with members of various UM women's teams and a short speech by women's basketball coach Katie Meier. This was followed by tickets to a women's basketball game (UM is the defending ACC champion and ranked 7th in the nation). Halftime featured a scrimmage of 3d and 4th grad girls from my daughter's school (which runs a popular girls' basketball league). And every timeout during the game featured announcements of various statistics and information about the benefits girls enjoy from playing sports. And doing it all on the day of the Super Bowl--arguably the culture's most male-centered day of the year--was brilliant counterprogramming. Of course, many of the girls left the game talking about how they were going home to watch the Super Bowl, which I hope reflects the instantiation of a general love of sports in many different forms.

I was very impressed with Meier's remarks, where she talked about how relatively new opportunities are for girls in sports (Meier is about my age, so she was growing up when Title IX was in its relative infancy), how sports have allowed her to have a career she never could have dreamed of when she was a kid, and the benefits that sports have for people in all walks of life. She particularly emphasized something I never thought of--that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives. I also was struck by one statistic that was announced during the game--today, 1-in-3 high-school girls play some sport, compared with 1-in-250 in 1971 (the year before Title IX). Finally, I was amazed by how fast the women players were--I had not seen a women's game live in a long time and the athleticism was surprising. I often have said that women are about 50 years behind men in most sports (i.e., women play a game that looks somewhat like the men's game of 50 years ago); I wonder if it may be less, at least in terms of speed and quickness.

I close with one of the great commercials of all time and the source of most of the statistics about girls' sports participation.^*

^* And a key piece of evidence in my arguments for why it really is difficult to separate commercial from political speech.

Anibal Sanchez Hearing

Today the Miami Marlins and Anibal Sanchez conducted their hearing, the third of this year. The arbitration panel included Elizabeth Neumeier (a veteran of salary arbitration with a 17-10 record in favor of the teams), James Oldham (3-1 record in favor of the teams after the Niemann decision today), and Gil Vernon. According to my research, Vernon was involved in a total of seven decisions from 1990-1992 when he served as the sole arbitrator. He decided four of the seven in favor of players. His panel decisions are 3-2 in favor of the teams. So, the panel decision in the Sanchez case will break a 6-6 tie for Vernon.

The difference between the parties is $1,100,000. The team offer is $6,900,000 while Sanchez requested $8,000,000.

This is the ninth hearing for the Marlins, and they have lost five of the eight previous decisions. They lost to Charles Johnson in 1998, Mark Redman in 2003, Miguel Cabrera in 2007, Dan Uggla in 2009, and Cody Ross in 2010. The Marlins defeated Vladimir Nunez in 2003, A.J. Burnett in 2003, and Kevin Gregg in 2007.

One historical note might be of interest to Sanchez and his representatives. If you check the list above against how long they stayed with the Marlins after their hearing, the trend is pretty clear. They did not wear a Marlins uniform for very long after the hearing. This is perhaps not that unusual because the decision to not settle and go to a hearing is often an indication that they team is thinking of going in a different direction with respect to that player in the near future.

5th Annual National Baseball Arbitration Competition

Next week, the Tulane Sports Law Society is hosting the 5th annual National Baseball Arbitration Competition. Forty teams from law schools across the country will compete in the unique and specialized context of MLB's salary arbitration proceedings. The two-day competition begins Thursday, February 9th and culminates on Friday afternoon with the championship round and baseball symposium, both of which are open to the public.

The championship round of the competition will be held on Friday, February 10th from 2:00 to 3:15 pm. Following the competition, from 3:30 to 6:00 pm, there will be a symposium featuring two panel discussions. The first panel discussion - The New CBA: Change and Continuing Peace - will be held from 3:30 to 4:30. The second panel discussion - Hot Topics in Baseball: International Issues, Arbitration Today, and More - will be held from 4:40 to 5:50. The symposium concludes with final remarks by Professor Gabe Feldman.

Both events will be held in the Kendall Cram Lecture Hall of the Lavin-Bernick Center, located on Tulane's uptown campus.

For more information on the event, click here.

The lineup of guest arbitrators and panel members for the competition includes:

Nona Lee, Senior Vice President and General Counsel of the Arizona Diamondbacks.
Jon Fetterolf, Partner, Williams & Connolly LLP in Washington D.C.
Larry Silverman, former Senior Vice President and General Counsel, Pittsburgh Pirates.
Darren Heitner, Attorney, Wolfe Law Miami P.A.; Chief Editor, SportsAgentBlog.com.
Jorge Arangure Jr., Senior Writer, ESPN The Magazine.
Marc Kligman, Baseball Agent, Total Care Sports Management.
Bryan Minniti, Assistant GM of the Washington Nationals.
Steven Fehr, Special Counsel to the MLBPA.
Scott Shapiro, Agent at Praver Shapiro Sports Management.
Jay Reisinger, Partner at Farrell & Reisinger, LL
Clark Griffith, Attorney; AAA Arbitrator; former Owner and Executive Vice President of the Minnesota Twins and former Chairman of Major League Baseball Properties.