The NBA Draft & Early Entry Decisions

Finally, one year later, the sports world is recognizing the challenges that student-athletes in the sport of men’s basketball face when navigating the rules relative to entering the NBA draft early. The NCAA and NBA have developed rules that, when combined, protect everyone except student-athletes trying to make a good decision.

Lots of articles been written on this subject, and I’d encourage you to read the following:

1. An opinion piece I wrote last April, predicting that this will be a problem for student-athletes.
2. Two advice pieces, written for student-athletes.
a. By Marc Isenberg -- link.
b. By Darren Heitner -- link.
3. An opinion piece by Bob Kravitz of the Indinapolis Star pointing out the current problems.
4. A lengthy law review article I wrote outlining the history of the NBA draft and arguing for change.

38th Annual Sports Lawyers Association Conference

The full program for the the 38th Annual Sports Lawyers Association Conference has been released. The event takes place May 10-12, 2012 in San Diego, CA. Highlights from the conference include the following:

College Conferences and Their Own Networks - Will College Sports Be Changed Forever? Counseling Your Client in a Crisis Situation
Town Hall Debate Collective Bargaining:Winners and Losers
Ethics for Sports Lawyers, The Lawyer's Dilemma: Ethics vs. Reality
Title IX: 40 Years Later
The Olympic Games as a Showcase - Anticipated Issues
And many others

Return of cheering speech

Two items on the cheering speech front:

First, I am quoted in today's New York Times on the subject, staking out my favored position that it's all First-Amendment protected and at least state-run facilities cannot do much. This subject seems to be back in the news of late, helped by some high-profile incidents, such as the eviction of former NC State basketball stars Tom Gugliotta and Chris Corchiani from an NC Stage game last month. The Times interview was pretty interesting, because the reporter seemed dubious and so, apparently, were the other people he had spoken to.

Second, here's an example of when cheering speech can be pretty clever: Fans of a lower-division German soccer team that had not scored in several game brought a sign reading "We'll show you where the goal is," then another group stood behind the visitors' goal holding yellow and green arrows and pointing them at the net (click to enlarge). Deadspin has video of the fans in motion. Now should the team, upset by the fans' "negativity," be able to stop this quite clever (and non-disruptive, since there aren't many people at the game) expression of dissatisfaction with the team's performance? And if the answer is no, then we need some way to draw a line between this and booing and yelling that the players stink--and no one has ever successfully drawn that line.

Sports Law at the Final Four: Tulane Law on Friday

If you are in town for the Final Four or have the good fortune to live in NOLA, please come by Tulane Law School for a panel discussion apropos to March Madness. The Tulane Sports Law Society presents: "Hot Topics in NCAA Athletics: Time for a Change?"

The panel discussion will take place this Friday, March 30th, beginning at 1pm, running until about 2:15pm. Immediately following the panel discussion will be an informal reception until 3pm. Potential topics include: multi-year scholarships, scholarship enhancements, conference realignment, player safety, social media, transfer issues, and the BCS. The panelists follow:

Renee Gomila, Associate Director of Enforcement, NCAA
Timothy Liam Epstein, Partner/Chair Sports Law Practice Group, SmithAmundsen, LLC

Greg Byrne, Director of Athletics, University of Arizona

Mike Alden, Director of Athletics, University of Missouri

John Long, Director of Compliance, Southeastern Louisiana University

The panel will take place at Tulane Law School. Room 257 Weinmann Hall, 6329 Freret Street, New Orleans, LA 70118. The panel is open to the public.

Sports Law Blog gets attention

Marc's post on the Gregg Williams suspension got some pub from reporter Stefan Fatsis on this week's Hang Up and Listen podcast on Slate. Fatsis seems to be a regular reader of the blog; he interviewed me for an NPR speech on fan speech a few years ago.

New Sports Illustrated column: What Hurdles Remain for Dodgers Sale?

I have a new column for SI on a group that includes Magic Johnson wining the bidding process for the Dodgers and what issues remain.  They include factors that will be considered by a bankruptcy judge on April 13 and how debt financing plays a role in Major League Baseball's evaluation of the winning bid. 

Hope you have a chance to check out the column.

Odds

Tassos Kaburakis and I recently had the chance to collaborate on a research project looking at gambling in the EU. Our findings were just published in the new issue of Business Law International. The abstract is below. Our follow-up piece focuses on the US exclusively and is slated for publication later this year. Among other things, our US-specific article looks at PASPA on the statute's 20th anniversary.

Using law and policy as a sustainable competitive advantage source is a recent research stream. This paper illustrates how legal and policy research contributes to firms’ strategy in the regulated gambling industry, defined by legislation and jurisprudence. The gambling sector has been a microcosm of European integration and harmonisation challenges, as well as promising opportunities. Research on European Court of Justice case law in the period 1990-2010 and on recent policy developments yields significant findings for firms wishing to compete in the gambling industry, in which entry barriers have traditionally been high due to restrictive regulation. Following the latest European Court of Justice decisions in September 2010 and the ensuing policy impact across Europe, gambling operators are prudent to invest in litigation, lobbying, continuous legal and policy monitoring, and establishment of regional gambling sites in jurisdictions they would have been preempted from pursuing heretofore.

Football Agents: Back on Campus

After almost five years, the NFLPA decided to rescind the “Junior Rule” yesterday. This rule, enacted and enforced by the NFLPA, specified that agents were not allowed to contact a college player until after their junior year—specifically, either after their last regular season or conference championship game or December 1st, whichever came later. Since the NFL’s CBA requires that three regular seasons have completed before a player may be drafted, the intent was to reduce unnecessary contact between draft ineligible student-athletes and agents.

In theory, this rule made sense; in practice it became an unbridled disaster for the industry. The competition to sign student-athletes is fierce and this rule became a wedge between agents who completely ignored it and those who tried to follow the law. Unfortunately for the NFLPA and their agents, since contact with a student-athlete is not prohibited by the NCAA, by and large student-athletes and institutions neither cared about nor enforced this rule.

The result was that agents were forced to decide between abiding by this rule or losing potential clients to their competitors who largely ignored this prohibition. Furthermore, even if agents themselves decided to follow the law, they skirted its intent by hiring runners or representatives to recruit for them. Since the NFLPA has no jurisdiction over anyone not certified by the union, the industry saw an explosion of runners who descended on college campuses across the country.

Yesterday, the NFLPA, by a vote of the player representatives, rescinded the “Junior Rule.” What this means is that schools across the country must be even more prepared to educate their student-athletes. The good news is that the game has changed from enforcement to education. The bad news, how many schools take educating student-athletes in this transition process seriously?

The NFL's Next Legal Challenge Comes From Within

The NFL continues to push the boundaries of antitrust and labor law. The latest incident has to do with an ongoing debate between two teams--the Dallas Cowboys and the Washington Redskins--and the league itself. Charges of collusion abound. Here is a summary of the events that triggered this conflict.

1. March 8, 2006: With CBA expiring, Commissioner Paul Tagliabue asks the owners to extend the agreement through the 2012 season. Every owner except Mike Brown of Cincinnati and Ralph Wilson of Buffalo votes to do so. However, a stipulation is put in the CBA extension is that owners can opt out in ’08 and cut the CBA’s length by two years. A provision is put in the CBA that means if the owners opt out, the last year of the agreement (2010) will not include a salary cap.
2. An uncapped year was intended to act as a “poison pill” for both the NFL and NFLPA. The NFLPA was in favor of an uncapped year because they anticipated teams would spend over this artificial ceiling if there are no restrictions. The NFL was in favor of this provision because there were clear limits on free agency that the NFLPA opposed.
3. May 20, 2008: The NFL owners vote unanimously to opt out of their collective bargaining agreement. Without action, CBA will expire March 3, 2011.
4. March 5, 2010: The 2010 league year begins with no salary cap, again, a provision originally meant to motivate sides to extend CBA.
5. 2010 NFL Season: played, but no salary cap.
6. During this season, two teams go over what would have been the artificial salary cap—the Washington Redskins & the Dallas Cowboys. This is done partly by front-loading salaries from long contracts into 2010 season.
7. Important note: All contracts were approved by NFL Management Committee.
8. Winter/Spring 2011: NFL Lockout
9. July, 2011: Owners ratify new CBA.
10. NFL, via the NFL Management Council, comes down on Redskins & Cowboys by punishing them for going over cap in 2010. Both teams were penalized for overloading contracts in the 2010 uncapped season despite league warnings to restrict doing so. Washington has been given a $36 million reduction over two years, while Dallas loses $10 million. Each must take at least half the reduction this year.
11. Why is the league upset over this overspending? Teams had been warned by the league not to structure contracts in such a way, because it could negatively affect competitive balance in 2011 and beyond, when a new collective bargaining agreement was expected to kick in. By dumping large financial guarantees into the uncapped year, Washington and Dallas not only were able to retain or sign potential impact players, the league contends, but also have greater salary-cap flexibility under the new CBA.
12. Finding by NFL that this action "created an unacceptable risk to future competitive balance".
13. No dispute from the NFLPA since they agreed to allow the NFL to take this cap space from the Cowboys and from the Redskins and redistribute the money to other teams. Why? NFL offered to help pump up the 2012 team-by-team salary cap in exchange for the union’s agreement. Also NFLPA Exec Dir DeMaurice Smith up for reelection.
14. Redskins and Cowboys contest this decision for two main reasons: one, the Management Council approved the contracts; and two, how could they be at fault when there was nothing in writing that prohibited them from structuring contracts as they did? Also, the NLFPA could file charges that the owners colluded to try to suppress wages.
15. The NFL Management Council is Co-Chaired by New York Giants owner John Mara, whose team happens to compete in the NFL East against the Redskins and Cowboys.
16. Statements made by each party include:

a. The Redskins statement:
“The Washington Redskins have received no written documentation from the NFL concerning adjustments to the team salary cap in 2012 as reported in various media outlets. Every contract entered into by the club during the applicable periods complied with the 2010 and 2011 collective bargaining agreements and, in fact, were approved by the NFL commissioner's office. We look forward to free agency, the draft and the coming football season.”

The Cowboys statement:
“The Dallas Cowboys were in compliance with all league salary cap rules during the uncapped year. We look forward to the start of the free agency period, where our commitment to improving our team remains unchanged.”

The NFL statement:
"The Management Council Executive Committee determined that the contract practices of a small number of clubs during the 2010 league year created an unacceptable risk to future competitive balance, particularly in light of the relatively modest salary cap growth projected for the new agreement's early years. To remedy these effects and preserve competitive balance throughout the league, the parties to the CBA agreed to adjustments to team salary for the 2012 and 2013 seasons. These agreed-upon adjustments were structured in a manner that will not affect the salary cap or player spending on a league-wide basis."

17. As indicated in CBA, teams suing NFL go to arbitration, which in this case is Special Master Prof. Stephen Burbank at Wharton.

"Tar Heel Tear Down": UNC Sanctions and Implications for the U

The long anticipated sanctions handed down to the University of North Carolina on March 12^th were yet another blow to a major college program in what has been a decade replete with NCAA sanctions. In the Football Bowl Subdivision (FBS) alone, thirty-seven programs have been sanctioned to some degree over the past ten years. Of those thirty-seven programs, four were banned from postseason play, eighteen were stripped of scholarships, fourteen faced recruiting restrictions, and all were given probation. Accompanying these sanctions, six show-cause orders have been issued, preventing the inculpated coach from working at the college level without NCAA approval.

The UNC case follows the well-documented sanctions delivered to the University of Southern California (USC) in 2010 and the Ohio State University (OSU) in 2011. USC was stripped of its 2004 National Championship, forced to vacate its 2005 season, and given a two-year postseason ban. OSU was saddled with probation, a one-year postseason ban, and a reduction in football scholarships. In both the USC and OSU cases, part of the violations stemmed from coaches who had knowledge of violations and either fostered continued non-compliance, or did not take proper preventative measures. As UNC recently learned, staff transgressions prompt stiff punishment.

As described by the NCAA’s Public Infractions Report, UNC’s violations stemmed from three separate circumstances: (1) a former tutor committing academic fraud with student-athletes and providing impermissible benefits to student-athletes; (2) the provision of impermissible benefits to student-athletes by various individuals, including sports agents and their associates; and (3) unethical conduct by a former assistant coach. The report links at least eleven former student-athletes to a variety of improprieties occurring while members of the UNC football team. John Blake, the implicated Assistant Coach, had a working relationship with now deceased sports agent Gary Wichard, and reportedly steered players toward his agency.

For these indiscretions, UNC was given a one-year postseason ban, prohibiting the team from playing in the 2012 ACC championship game and any subsequent bowl game. The program was also placed on probation for three years, and stripped of five scholarships for each of the next three years. Blake was issued a three-year show cause order. The University had already placed its football program on a two-year probation, cut three scholarships per year for three years, and vacated wins from the 2008 and 2009 seasons, but the NCAA viewed these self-imposed sanctions as insufficient and issued the dreaded postseason ban.

Interestingly, what is absent from this Infractions Report, is punishment for UNC directly tied to a failure to monitor social media, which was a charge in the Notice of Allegations. It is clear that at least one violation (receipt of impermissible benefits by Marvin Austin) would have been discovered by even a cursory review of his Twitter account. The Infractions Committee, however, declined to impose a blanket duty on institutions to monitor social media. Instead, the Committee held that a duty to monitor social media may arise if an institution has a reasonable suspicion of rules violations by an individual student-athlete. The Committee concluded its comments relative to social media monitoring by punting to schools and conferences: “[i]f the membership desires that the duty to monitor social networking sites extend further than we state here, the matter is best dealt with through NCAA legislation.” For a more detailed discussion of monitoring social media, see my recent law review article published by the University of Mississippi School of Law: “ ‘Student-Athlete.O’ Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation.”

The sanctions that were leveled against UNC are generally consistent with those imposed upon USC, OSU and others, and may provide a glimpse into future punitive action by the NCAA. The investigation that bears monitoring in the coming months is the well-documented allegations against the University of Miami. In the shocking account detailed in a Yahoo! Sports August report, Nevin Shapiro, a former University booster, claims that from 2002 to 2010 he provided impressible benefits to seventy-two players including: prostitutes, jewelry, travel, and even funds for an abortion after a player allegedly impregnated a stripper. According to the report, at least seven Miami staff members knew about the benefits being conferred, and some even steered athletes toward Shapiro.

If these allegations prove true, penalties against Miami will assuredly exceed those levied against UNC because if these precedential cases prove anything, it’s that complicit knowledge amongst coaching staff members is reprehensible in the eyes of the Association. Misdeeds by authority figures entrusted with the care of student-athletes implicate an institution far more than the exploits of teenagers and rogue outsiders. If even a fraction of the egregious acts alleged in the Miami case are substantiated, a multiple-year post season ban is likely, and numerous coaches may find themselves strapped with a show-cause penalty. Presently, much attention is paid to providing proper compliance education to student-athletes, but in light of these cases, institutions may need to start devoting more resources for compliance education of coaches and support staff, and not just the athletes working under their tutelage.

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

The Gregg Williams' NFL Suspension: Logical Yet Perhaps Illegal

Most NFL fans were appalled to learn about former New Orleans Saints defensive coordinator Gregg Williams' bounty system that paid his players for injuring opponents. In light of growing concern about retired NFL players' health, Commissioner Roger Goodell swiftly suspended Williams indefinitely from the league.

Thus far, Goodell's suspension of Williams has received overall positive press. However, even if fans are happy to see Williams go, their feelings beg an entirely different question: did Roger Goodell have the legal authority as a governing figure on behalf of the 32 teams to ban Williams from practicing his profession as a pro football coach?

If challenged under Section 1 of the Sherman Act, Goodell's attempt to indefinitely suspend Williams serves as an interesting test case to the modern view of antitrust law's Rule of Reason. As the NFL will most likely note, back in 1961 the U.S. District Court for the District of New York ruled in the case Molinas v. Nat'l Basketball League that a league commissioner may indefinitely suspend a player on moral grounds. However, since the Molinas case was decided (which, of course, only came from a single district court), courts' interpretation of antitrust law's Rule of Reason has changed significantly.

Most notably, in the 1978 U.S. Supreme Court case National Society of Professional Engineers v. United States, the high court explained that antitrust law's Rule of Reason should not turn "on a court's intuitive judgment of whether a particular practice seems sensible and equitable, but rather on economic analysis." In other words, unlike in past decisions such as Molinas, public policy grounds no longer serve a clear place in a proper antitrust analysis.

In light of the Supreme Court's holding in both Professional Engineers and its progeny, I have repeatedly argued that indefinite commissioner suspensions in professional sports leagues are generally no different from illegal group boycotts. This argument is especially powerful where the suspended party is an NFL coach because NFL coaches are not unionized and thus their suspensions lie outside of antitrust law's non-statutory labor exemption.

Interestingly, a rarely discussed footnote in Professional Engineers (footnote 22) leaves open a small gray area if the main purpose for a restraint of trade is to protect a collective entity from "product liability." Given the bona fide liability concerns that would flow to NFL teams by allowing continued employment of a coach that has encouraged physical harm to players, Goodell's suspension may fall firmly within the spirit of this Footnote 22 caveat.

Nevertheless, footnote 22 of Professional Engineers is vague, and its successful application has been rare. In addition, footnote 22 relates specifically to product markets and not to labor markets, where upholding such a restraint would entirely prevent one from practicing his chosen avocation.

In this vein, courts have been frequent to uphold the general position that no matter how laudable one's intentions, separate businesses are forbidden from coming together to form an extra-governmental entity that provides rules for the regulation and restraint of interstate commerce. According to most courts, the power to regulate such trade is a power reserved for the government and not trade associations, even where a trade association's leader has honorable intentions.

Two tales of cheering speech

I was interviewed yesterday by a reporter for The New York Times on the subject of cheering speech; he seemed resistant to many of my arguments and suggested that others would be, as well (he might be right about that last point). Anyway, here are two new examples of cheering speech for the record books:

Last night in Oakland, Golden State Warriors fans loudly and continuously booed team owner Joe Lacob during the ceremony to retire the jersey of Warrior great Chris Mullin. The boos continued despite repeated requests from Mullin and from Rick Barry, who also was on hand. Also yesterday, Southern Mississippi kicked five members out of the pep band and withdrew their scholarships after they chanted "Where's green card" at Kansas State's Angel Rodriguez during an NCAA tourney game last weekend.

Both incidents show fans being utterly obnoxious, to be sure. But it is hard to see why any of this does not and should not enjoy free-speech protection under current principles. Certainly the Warriors fans should be able to make their feelings heard about an owner who, in their view, is mismanaging the team.

The Southern Miss situation could get interesting, because the sanction was meted out by a state institution, so a First Amendment lawsuit is not out of the question. My best guess is that any lawsuit will fail, because a court would conclude that the band members speak "as the school" and the school can control who speaks (or cheers) on its behalf. The Fifth Circuit last year rejected a claim by a high school cheerleader who was kicked off the team for refusing to cheer for the basketball team member who, she alleged, sexually assaulted her. It's hard to imagine the band members having any better luck.

Update: A reader emails to say he reached out to the Southern Miss. administration and a spokesperson said there is no First Amendment violation because the students were punished only in their capacity as band members. Sloppily stated, but it does sound like they are setting up a "we get to choose who speaks as our official representative" argument.

New Sports Illustrated column: Mets owners settle claims brought by Madoff victims

Big news in Mets land today, as the team's owners settle what was originally a $1 billion lawsuit brought by victims of Bernard Madoff.  While the settlement is for $162 million, they will likely end up paying much, much less.  Here's my take for SI.

Jim Thorpe and Civil Procedure

Here is an interesting story from yesterday's Washington Post on the ongoing over the remains of Jim Thorpe, the great Native American athlete of the early 20th century. In 1953, Thorpe's third wife gave his body to two neighboring towns in the Pocono Mountains of Pennsylvania--Mauch Chunk and East Mauch Chunk--in exchange for their merging and adopting the name "Jim Thorpe." But in 2010, John "Jack" Thorpe, one of Thorpe's sons, sued in federal court against the Borough of Jim Thorpe, seeking the return of his father's remains under the Native American Graves Protection and Repatriation Act (“NAGPRA"), as well as damages under § 1983.

As always, there is a lot of interesting procedure floating around here. In February 2011, the district court granted in part and denied in part the Borough's 12(b)(6); it held that the damages claims were legally barred, but that the NAGPRA did govern the plaintiff's claim. The court also suggested that Richard and William Thorpe, Jack's brothers, and the Sac and Fox Nation, the Oklahoma-based tribe to which Jim Thorpe belonged, had to be joined as defendants under FRCP 19. Jack Thorpe initially sought an ordering that Jim's remains be turned over to Jack; to the extent William, Richard, or the Sac and Fox might also have a claim to the remains, they needed to be heard in this case. The court left open the question under FRCP 19(b) whether Richard, William, or the Nation would be subject to personal jurisdiction in Pennsylvania and, if not, whether the case could proceed without them.

Shortly after the district court's decision, Jack Thorpe died, triggering application of FRCP 25 for substitution of parties. But then Richard and William and the Sac and Fox Nation joined Jack (now represented by his estate) as plaintiffs, filing an Amended Complaint that now seeks the return of Jim's remains to the tribe. The Amended Complaint recently denied a second 12(b)(6) motion, holding that the new plaintiffs are proper parties and reiterating its view that the NAGPRA claim is not legally defective and can proceed.

Vermont Law School Panel on Emerging Issues in Ski, Snowboarding and Resort Law

The Sports Law Institute at Vermont Law School is thrilled to announce our upcoming panel on emerging issues in ski, snowboarding and resort law.  Here are the details:

The Sports Law Institute at Vermont Law School presents

A Panel Discussion on Emerging Legal Issues

in Ski, Snowboarding and Resort Law

Thursday, March 29, 2012

12:45 to 2:00 pm

Chase Community Center

We are excited to announce a dynamic panel of leading attorneys in ski, snowboarding and resort law.  The event will be open to the public and 1.25 Vermont CLE credit hours will be available.     Topics will include:

• tort implications of participating in ski and snowboarding;

• role of assumption of risk in personal injury litigation involving ski and snowboarding;

• new state laws that promote safety, such as requiring skiers and snowboarders under 18 to wear helmets; 

• the structuring of licensing and related ski and snowboarding contracts;

• impact of international law on multi-national ski, snowboarding and resort transactions;

• impact of controversial new regulations promulgated by the International Ski Federation;

• ways the law can improve underprivileged persons' access to ski and snowboarding; and

• how changes to the law might address the expected impact of climate change on the ski, snowboarding and resort industries.

Introduction

Professor Michael McCann will introduce the event and the speakers.  He will also comment on the Sports Law Institute's exciting plans for 2012-13.

Panel

Brian Porto (moderator)

Professor Porto is Deputy Director of the Sports Law Institute and an Associate Professor of Law at Vermont Law School.  He has been writing about legal issues in sports for more than two decades.  Professor Porto's writings focus on the effects of Title IX on college sports and on the relationship between those sports and higher education.  His most recent book, The Supreme Court and the NCAA, examines the antitrust and due process consequences for college football and basketball of the United States Supreme Court's decisions in NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), respectively.  Professor Porto holds a JD from Indiana University-Bloomington and a PhD. in political science from Miami University (Ohio). Before coming to VLS, he taught political science at Macalester College in St. Paul, Minnesota and practiced law in Vermont.

Evan Banker

Mr. Banker is the senior associate at Chalat Hatten & Koupal PC in Denver, Colorado.  His practice is focused on ski, snowboard, and other recreation related injuries, as well as professional malpractice. Mr. Banker’s ski and recreation law practice regularly includes questions of law regarding the enforceability of liability waivers, inherent risks and dangers of skiing, resort liability, and skier responsibility. He holds degrees from the University of Denver College of Law and the University of Michigan.

Jaimesen Heins

Mr. Heins is Associate General Counsel at Burton Snowboards in Burlington, VT.  He manages transactional legal matters for Burton and its global family of surf, skate and snow brands.  This including drafting, review and negotiation of professional athlete, sponsorship, manufacturing, licensing and related commercial agreements.  In addition, Mr. Heins provides advice and strategic counsel to Burton with respect to mergers and acquisitions, intellectual property, employment, real estate and litigation matters.. Previously, Mr. Heins served as a Project Manager for Toll Brothers, Inc., a publicly traded real estate development company.  Mr. Heins also held associate positions with Hughes Hubbard & Reed, LLP in New York and Eggleston & Cramer, Ltd. in Burlington, Vermont.  Mr. Heins holds degrees from the University of Pennsylvania Law School and Tulane University.

Andrew Maass  

Mr. Maass is an attorney at Ryan Smith & Carbine in Rutland, VT.  A past officer and President of the Board of Directors of the Association of Ski Defense Attorneys, Mr. Maass is active in ski defense and professional liability litigation and has successfully tried numerous cases to jury verdict.  He has presented before the National Ski Areas Association, the Vermont Ski Areas Association and the Ski Areas of New York Association and has been involved in ski industry litigation throughout the East Coast.  A substantial portion of Mr. Maass’s practice also consists of counseling employers on employment issues. Mr. Maass is an approved trainer for equal employment/discrimination matters by the Civil Rights Division of the Vermont Attorney General’s Office.  He holds degrees from New England School of Law and St. Lawrence University.

Parker Riehle (VLS' 92)

Mr. Riehle is president of the Vermont Ski Areas Association, which represents the state’s alpine and Nordic ski areas in governmental affairs, marketing and public affairs.  Before first joining the association as the Director of Governmental Affairs in 1998, Riehle was in private practice with a primary focus on insurance defense litigation. In 2003, he was appointed to Governor Douglas’ senior staff as Special Assistant to the Governor and Secretary of Civil & Military Affairs, where he served as legal counsel, legislative liaison and policy advisor.  After the Governor’s first term, he returned to VSAA and has been president since 2006, where he oversees all aspects of the association and serves as the ski industry's lobbyist with the Vermont legislature and regulatory agencies.  He holds degrees from Vermont Law School and Hamilton College.

An empirical look at sports and politics

Brad Smith, a UNC undergrad, has analyzed President Obama's NCAA bracket, finding a statistically significant relationship between the number of wins Obama picks for a team and that team's location in a potential swing state in this fall's election, a relationship beyond the national average. (H/T: Kim Krawiec of UNC Law). Kim adds a nice caveat: not every pick of a school in a swing state will appeal to swing-state voters in the same way. For example, picking Duke will not appeal to North Carolina voters in the same way as picking UNC or NC State.

Interview with Bryan Stroh, Vice President and General Counsel of the Pittsburgh Pirates

The Pittsburgh Pirates recently hired Bryan Stroh as Vice President and General Counsel.  It's been a productive month for him.  He played key roles in the team winning its arbitration case against first baseman Garrett Jones and re-signing All Star center fielder Andrew McCutchen to a six-year contract worth $51.5 million with a club option for 2018 worth (the deal buys out at least two years of when the 25-year-old McCutchen could have been a free agent). 

Bryan is a good friend and former law school classmate of mine (University of Virginia School of Law, 2002).  Prior to joining the Pirates, he was a Chicago-based partner of Katten Muchin Rosenman, where his work included representing the Chicago White Sox.  He's also a 1998 graduate of Princeton University, where he was a top pitcher for the baseball team.  Bryan was kind enough to answer a few questions for Sports Law Blog.

SLB: What types of experiences at Katten best prepared you for this job?

STROH: At Katten, I was fortunate enough to work on a number of matters for the Chicago White Sox.  When I was a mid-level associate, I worked with a partner representing a White Sox player in a dispute with a former agent.  That case really opened my eyes to the various ways that the legal world overlaps with baseball.  Then a few years later I worked with the same partner on an internal investigation for the White Sox.  It was a fascinating case and I was lucky enough to be exposed to a number of people in the White Sox front office.  After we got a good resolution on that case, the partner basically kicked me in the butt and told me that I owed it to myself to try to figure out if there was a way for me to that sort of work more often, since he could see how much I enjoyed doing the work.

Beyond the sports cases that I worked on, as a litigator I did a ton of negotiating in a variety of different contexts.  That has been a huge benefit for me in my new role because even though the subject matter is a bit different, there are very few situation and personalities that I have not already come across in one form or another. 

SLB: What are typical situations you might have to handle in your job?  Are you involved with the disciplining of players or visa issues?

STROH: I have only been here about three months, so I am not sure I can really describe what is typical.  In the non-baseball world, the offseason involves a great deal of contract drafting and negotiation for things like sponsorship agreements, suite licenses, and media contracts.  On the baseball side, my primary focus has been contract negotiation for one multi-year contract in particular, but also for arbitration eligible players.  I also spent a great deal of time preparing for and giving the club’s presentation at a salary arbitration hearing. I have also had a variety of issues pop up related to the club’s activities in the Dominican Republic and other Latin American countries. One of the things that really attracted me to this job is the variety of work that I get to do, which includes a good deal of overlap with the club's baseball operations. Every club structures things differently, but I am fortunate that Neil Huntington and Frank Coonelly give me opportunities to be involved in more than just those traditionally associated with a general counsel position.

SLB: The new CBA, which limits the amount of money teams can spend on drafted players, has been described as unfair to small market teams like the Pirates, which have used spending on the draft to rebuild in part because free agents are so expensive/over-priced.  What are your views on the impact of the CBA on the Pirates?

STROH: I understand that perspective and selfishly think it is too bad that we cannot continue to exploit what we believed to be a competitive advantage.  But, the reality is that, even though the Pirates spent more money in the draft than most teams in the past 3-4 years, that was not going to last forever.  The bigger market clubs could have changed that at any time, and likely would have once one decided that the money spent in the draft was efficient and money well spent.  If that ever happened, the larger market clubs could have spent significantly greater dollars than even the level the Pirates had been spending, which could have been a huge competitive disadvantage.  Thus, the structure of the new CBA prevents that from happening, even if it takes away the temporary advantage produced by the additional dollars spent by the Pirates in recent drafts.

SLB: Baseball has adopted tougher penalties and testing protocols for steroids and performance-enhancers.  Do you think Baseball will be able to keep up with what are clear market incentives for players and disreputable labs to identify new drugs that evade detection?

STROH: One thing that might surprise some fans is that, for the most part, I think the players, not just the clubs, really want to clean up the game.  You saw that recently with some of the reaction to the Braun case.  The players are aware that there is this perception out there that any accomplishments are somehow tainted by the steroid possibility.  Thus, most of them seem to realize that the perception, even if it is not based on fact, will not go away until there is a testing program that engenders the public’s confidence and trust.  Most players and agents that I have spoken with are very clear about this point, and that is why I believe that the last round of bargaining produced a strong set of penalties and testing protocols that both sides believe in.
 
SLB: What advice do you have for law students or new attorneys hoping to break into sports law?

STROH: First, they need to ask themselves whether they really have a strong passion for a sport or whether they just think that the idea of working in sports would be fun or cool. 

Second, and only if they have the passion for a particular sport, they need to think about how they will separate themselves from the pack in terms of offering value to whoever might hire them.  Unfortunately, it just is not enough to be somebody who likes sports, went to a good school and got good grades.  There are thousands of people who want to work in sports, and after Theo Epstein and others helped to break the mold, the supply of talented people who want to work in sports has gone through the roof in the last 10 years.  One of the clubs that I represented in private practice used to show me the resumes of people that did not even make the cut to be “finalists” for a few positions.  Those resumes were incredibly impressive and these people did not even make the final cut!  Whereas it used to be people wanted to work in sports but were semi-realistic about their chances, now anybody who goes to college wants to get into the sports world.  While I think that is healthy for sports in general since it means that more and more qualified people are considering working in sports, the reality is that by itself just isn’t enough to get a job.  You have to try to think about how you can provide some sort of unique skill or background that will help you stand out.  And even then, if you are able to do all of those things, you have to get a little lucky and be in the right place at the right time.  If you do your homework on how most people from the outside got their start in baseball, it becomes pretty obvious that timing is everything.

15th Annual University of Miami Entertainment & Sports Law Symposium

The sports law conference season is in full swing. The University of Miami School of Law Entertainment and Sports Law Society has organized the 15th Annual Entertainment & Sports Law Symposium. The April 14, 2012 event is co-hosted by the Miami Marlins and held at the team's new stadium. Full details about the conference can be found here. A summary of the schedule is below.

SYMPOSIUM SCHEDULE

BREAKFAST, REGISTRATION, AND OPENING REMARKS: 8:00AM – 8:40AM
Breakfast, registration, and opening remarks will occur before the start of the symposium.

PANEL I: 8:40AM – 9:40AM
Protecting Your Client's Image: The Use of Intellectual Property Law to Represent a Client's Business and Personal Interests

PANEL II: 9:50AM – 10:50AM
Leveraging Social Media: Best Social Media Practices for the Entertainment and Sports Industries

PANELS III: 11:00AM – 12:00PM
The Year of Copyright Recapture: Analyzing the Music Industry's Response to a Change of Control in Ownership Rights

PANELS IV: 11:00AM – 12:00PM
Alternative Dispute Resolution in Professional and International Sports: The Role of Mediation, Arbitration, and Negotiation in Labor Issues

LUNCH AND KEYNOTE PANEL: 12:00PM – 2:00PM
The Stadium as a Center for Entertainment and Sports: An Overview of the Business and Legal Issues That Arise in Event Planning at the Modern Stadium

PANEL V: 2:00PM – 3:00PM
From the Television Screen to the Computer Screen: Distributing Entertainment and Sports Content in Today's Digital Age

TOUR OF THE BALLPARK: 3:00PM – 3:45PM

GAME VERSUS THE HOUSTON ASTROS: 7:10PM

The Following Speakers Are Confirmed

Jeff Gewirtz: Executive Vice President & Chief Legal Officer, Brooklyn Sports & Entertainment – Brooklyn, NY
Michael Yormark: President and Chief Executive Officer, Florida Panthers – South Florida
Derek Jackson: Vice President and General Counsel, Miami Marlins
Kathleen Carignan: Executive Director, LegalArt
Brad Rose: Partner, Pryor Cashman LLP
Steven Olenick: Associate, Davis & Gilbert LLP
Jaime Vining: Partner, Friedland Vining P.A.
Darren Heitner: Associate, Wolfe Law Miami, P.A.
Alan Fertel: Partner, Boyd & Jenerette
David Canter: President and Chief Executive Officer, DEC Management
Billy Corben: Director, Producer, and Founder of rakontur
Andrew Fine: Managing Director of Sports Media Consulting, RLR Associates
David Bercuson: Law Offices of David Bercuson, P.A.
Leslie Zigel: Partner, ZIGLAW
Stephen Carlisle: Stephen M. Carlisle, P.A.
Serona Elton: Assistant Professor of Music Business & Entertainment Industries, University of Miami
Dennis Curran: Senior Vice President & General Counsel, National Football League
Stephen Starks: Legal Affairs Director, United States Anti-Doping Agency
Scott Shapiro: Praver Shapiro Sports Management, Founder
Mike Santos: Assistant General Manager, Florida Panthers
Tony Agnone: Owner, Eastern Athletic Services
Jan Paulsson: Professor, University of Miami School of Law
Yaphett Powell: Director, Business & Legal Affairs, International & Emerging TV Networks, FOX – Los Angeles
David Schwartz: Vice President & Counsel, The Walt Disney Company
Karyn Smith-Forge: Vice President of Programming, FOX Television Studios
Fred Goldring: Founder, Goldring Strategies
Jose Sariego: Senior Vice President of Business & Legal Affairs, HBO Latin America Group

The Irony That is March Madness

Now that “March Madness” is underway, two important articles this weekend highlight the irony that is big time college athletics in 2012. The first article, “Everybody Wants a Piece of Nerlens Noel” written by Pete Thamel in The New York Times, highlights the recruiting efforts by colleges for the services of a standout high school basketball player. This piece illustrates, in remarkable clarity, the fact that schools view athletes as commodities rather than potential student-athletes.

As a result, can it really be any surprise that advocates again discuss forming a union on behalf of these student-athletes? An article on Salon.com by Josh Eidelson entitled “Madness of March: NCAA Gets Paid, Players Don’t,” raises the concept of student-athletes unionizing. Rather than just arguing it’s a concept worth debating, Eidelson actually pushes the discussion by addressing the legal framework that so far has stifled this effort and offers some solutions.

Make no mistake, college athletics is an extremely lucrative business. Chasing revenue places pressure on schools to recruit elite student-athletes. Unfortunately, those same student-athletes have virtually no formal say in either their governing body (NCAA) or as an a collective body (union). Change is necessary.

If Only Gregg Williams Were a Boxing Promoter

Why the Brewing Scandal Involving the St. Louis Rams’ Defensive Coordinator Would be a Non-Starter in Professional Boxing

 

Just a week or two ago, it was professional boxing’s turn again to come under international scrutiny following Dereck (Del Boy) Chisora’s antics both before and after his WBC Heavyweight Title bout with Vitali Klitschko. This week, however, it was the NFL taking the heat following the revelation that Gregg Williams, the new defensive coordinator for the St. Louis Rams, instituted a “bounty program” while in the employ of the Washington Redskins, the New Orleans Saints, and possibly others which involved financially rewarding defensive players for particularly damaging defensive plays. 

While the fall-out from the Williams scandal will inevitably lead to certain reforms being instituted within the NFL, such rewards are routine in professional boxing. Indeed, it is not unusual to see a promotional agreement which provides for additional compensation in the event that the boxer scores a knockout in a given bout. In two sports with rich histories of brutality, why is one under a potentially policy changing assault while the other continues on unscathed with its own bounty programs? 

Read on at this link.

The A's-Giants Dispute Over San Jose Continues

The on-going dispute between the Oakland Athletics and San Francisco Giants regarding the A's proposed relocation to San Jose (territory claimed by the Giants) is once again heating up this week (click here for an earlier 2009 post on the dispute). After patiently waiting three years for an MLB panel to resolve the matter, A's owner Lew Wolff went public Wednesday questioning the Giants' supposed claim to San Jose. The Giants franchise alleges that it controls the San Jose territory under a 1990 agreement in which the A's voluntarily relinquished their rights to Santa Clara County (which includes San Jose) so that the Giants could themselves relocate to the area.

However, Wolff issued a statement on Wednesday referencing the minutes of the relevant 1990 owners meeting, which he says clearly provide that the Giants' claim to Santa Clara County was contingent upon the team actually moving to the area. Because the Giants never left San Francisco, Wolff asserts that the Giants have no rightful claim to San Jose. The Giants disagree with Wolff's interpretation, issuing a statement arguing that the franchise's claim to Santa Clara County has been ratified in the MLB Constitution on multiple occasions since 1990. Indeed, if the Giants' claim to San Jose was as flimsy as the A's now allege, then MLB would likely have settled this dispute a couple years ago.

Frustrated by the delay, San Jose Councilman Sam Liccardo suggested on Wednesday that a reconsideration of baseball's antitrust exemption might be in order if the A's are unable to move to the city. The suggestion that the government should reevaluate baseball's antitrust exemption in light of the A's-Giants dispute is not unexpected, as the exemption has historically helped shield MLB's territorial restrictions from antitrust scrutiny. As I detailed in a recent paper, Congress has frequently threatened to revoke baseball's exemption in order to motivate MLB to make a variety of concessions. Liccardo's threat alone is unlikely to force MLB to allow the A's to move to San Jose, but that could change if a sufficient number of Congressional representatives become interested in the A's plight.

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

A reminder for those in the NYC area: The Cardozo Journal of International and Comparative Law is hosting a symposium tomorrow from 8:30 am to 1:30 pm on the law and business of the London 2012 Olympic Games. I'm honored to be one of the speakers. Other speakers include Harvey Schiller (former CEO of Turner Sports and later CEO and Chairman of YankeesNets) and attorneys from NBC Sports and Latham & Watkins. It should be a great event - hope to see you there.

ESPN Radio/True Hoop on Rationality, Race Sensitivity and Legality of NBA Age Limit

During last week's MIT Sloan Sports Analytics Conference -- which was truly amazing -- ESPN's Henry Abbott interviewed for me for 21 minutes on the NBA age limit (more technically called the league's "eligibility restriction").  The rule requires that players be 19-years-old plus one year removed from high school.

We talk about why the rule exists, how it relates to the commercialization of college basketball, whether it, along with the NFL and WNBA's age limits, could be deemed racist in light of the absence of such restrictions in other sports and forms of entertainment, and its vulnerability to legal challenge.  I also accepted Henry's challenge to impersonate Tom Cruise from the movies The Firm and Jerry Maguire.

Hope you can listen to the interview.  For a related piece, be sure to check out SI's Zach Lowe's excellent analysis and summary of the age limit issue.

Update: Henry also interviews Sonny Vaccaro and U.S. Secretary of Education Arne Duncan on this topic and related issues.

New Sports Illustrated column: Legal Fallout of Saints Bounty Scandal

Is it a crime or tort to pay someone to injure another person? Sure. But how about if it the crime/tort happens on a football field? Check out my column for Sports Illustrated | SI.com on the Saints bounty system.

Here's an excerpt:

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The bounty system implicates at least two types of criminal charges: battery and conspiracy. Battery, which under Louisiana law is punishable by up to six months in jail, refers to the intentional use of force upon another person without that person's consent. Here, a Saints player who intentionally tried to injure another team's player could have battered that player. In response, a Saints player might argue that offensive players assume the risk of serious injury on every play, especially since defensive players are rewarded for stopping the advancement of the ball. That rationale would be deeply flawed, however, because while offensive players assume the risk of injury on a tackle, they do not assume the tackle is intended to injure them. The Saints' "pay for injury" model is clearly outside the boundaries of the game and an assumption of risk defense holds little weight. ...

***

While the above provides a road map to criminal prosecutions of Saints players, coaches and front office personnel, prosecutors seldom seek charges for incidents that occur on the field. This is true even for on-field incidents that would clearly be crimes if they occurred on a public street. Prosecutors and judges generally defer to leagues to enforce their own rules and assign their own penalties. While this deference makes sense on some levels, one may wonder whether an NFL penalty provides adequate deterrence for preventing future bounty systems: even the most serious NFL fine -- banishment from the game -- could never come close to the threat of a judge sentencing someone to jail or prison. Besides, in the rare instances when criminal charges are brought by authorities, they are often brought outside of the U.S. (such as when Vancouver authorities charged Boston Bruins defenseman Marty McSorley for his vicious slash of Vancouver Canucks forward Donald Brashear).

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To read the rest, click here.