Upon Further Review of Hart v. Electronic Arts: New Article Proposes Partial Recovery for Partially Transformative Use

Back in September 2011, the U.S. District Court for the District of New Jersey ruled in Hart v. Electronic Arts, 808 F. Supp. 2d 757 (D.N.J. 2011) that videogame publisher Electronic Arts may use college athletes' likenesses in its videogames because "there are sufficient elements of [Electronic Arts'] own expression ... that justify the conclusion that its use of the image is ... entitled to First Amendment protection." (Previously blogged about on Sports Law Blog here).

To many, the district court's decision in Hart was controversial, not only because it subordinates the rights of college athletes, but also because it expands what courts have traditionally defined as "transformative use" of one's likeness. For example, the court in Hart concluded that Electronic Arts' inclusion of“virtual stadiums, athletes, coaches, fans, sound effects, music andcommentary” makes use of player likenesses in NCAA Football "transformative." Nevertheless, the U.S. Court of Appeals for the Ninth Circuit had previously held in Hilton v. Hallmark Cards that First Amendmentprotection applies only where “a product containing a celebrity’s likeness isso transformed that it has become primarily the defendant’s own expressionrather than the celebrity’s likeness.”

After several months of contemplating the district court's ruling in Hart v. Electronic Arts, I have released a draft of my upcoming Florida Law Review article, entitled "Closing the Free Speech Loophole: The Case for Protecting College Athletes' Likenesses in Commercial Videogames." In this article I argue that the partial transformation to a person's likeness via digital format -- whether it be by adding additional background elements, or by changing one's jersey number, height or hairdo -- should not be seen as a complete bar to recovery under right of publicity law.

Instead, I argue that a partial transformation to one's likeness should be deemed as a partially mitigating factor that may reduce the infringer's liability, but would not reduce it to zero. Thus, under this alternative assessment, college athletes whose likenesses appear in college football videogames would be entitled to partial recovery.

For those interested in further discussion of college athletes' publicity rights in commercial videogames and the idea of partial recovery for partial transformative use of one's likeness, a full copy of my upcoming law review article is available here.

"Dear Colleague" Letter Regarding PASPA

On April 26, 2012, U.S. Congressmen Frank Pallone and Frank Lobiondo (both from New Jersey) released a "Dear Colleague" letter explaining the impetus for the two bills they recently introduced pertaining to PASPA, the 1992 federal statute prohibiting state-sponsored sports gambling in all jurisdictions except Nevada, Montana, Delaware, and Oregon. An excerpt from the letter is below:

"We have developed two separate, but equally effective, pathways toward the same goal of bringing sports gaming and the economic benefits it yields to the State of New Jersey. The New Jersey Betting and Equal Treatment Act of 2012 (NJ BET Act), H.R. 3081, provides New Jersey with an exemption to the federal prohibition [in PASPA]. It allows state law in New Jersey to determine how sports betting will be regulated within the state. The Sports Gaming Opportunity Act of 2012, H.R. 3797, opens a window in which states can enact alaw providing for sports gambling within their state until January 1, 2016,after which the federal prohibition [in PASPA] against states allowing sportsgambling would go back into place."

The full letter can be found here.

Minnesota Passes Bill to Allow Beer and Alcohol Sales at College Sporting Events

For those who are interested in the debate over whether to allow beer and alcohol sales at college sporting events, the State of Minnesota recently passed a bill that would allow for the sale of alcohol in suites for premium ticket holders and in a beer garden for the general public. According to the Minneapolis Star Tribune, the new bill is expected to bring the State of Minnesota $1.5-$2.0 Million in annual revenue.

If Minnesota Governor Mark Dayton signs this new bill into law, Minnesota will join Iowa, West Virginia and a growing number of other states in allowing beer and alcohol sales at their college sporting events. This is at the same time that many colleges around the country claim there is a need to crack down on undergraduate students' alcohol consumption.

In a 2010 law review article, David Rosenthal (a former student of mine) and I discuss the inconsistent messages that college athletics send about alcohol use. Does it make sense for the University of Minnesota to arrest underage students for drinking beer on Friday nights, and then to sell beer in its football stadium on Saturday afternoons?

Also, when colleges profit from the sale of beer at their sporting events, are they implicitly using their 'student-athletes' to help peddle the product? If so, can we truly call these college athletes amateurs?

Sports Venture Capital

I attended this week the first meeting of a group focused on sports venture capital. The attendees included representatives from the major sports leagues, venture capitalists and a number of initial stage companies with some technology or other services applicable to the sports industry.

MLB and NFL digital media execs gave a fascinating presentation on how those leagues use digital media to interact with and gain new fans, and what they look for when considering their own investments and other partnerships with sports technology companies.

The major sports leagues clearly see potential financial benefits from investing in initial stage technology companies, at least in part because social media is integral to their business models, as well as owning their own content. With the importance of social media for teams and leagues in heightening the fan experience (and increasing revenues), the proliferation of sports start-ups focused on technology and social media is likely to continue and teams and leagues are likely to continue to invest their own funds in these ventures. Technology companies like Apple and Google have been rumored to be bidders for sports media rights such as the English Premier League soccer.

The convergence of technology and sports, and start-up ventures, particularly social media companies, is a trend to watch.

Free speech at the old ballgame

I have suggested that the brouhaha over Ozzie Guillen's "praise" of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).

But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen's firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don't like.

I attended today's game at Marlins Park (against my inept Cubbies), the third game since Guillen's reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins' victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.

Mine are below.

Crime doesn't pay, but may taste good

From this link:

Former Florida guard Erving Walker has pleaded no contest to a petty theft charge of stealing a $3 taco ... and fined $301.

Walker, who just completed his senior season and ranks first in school history in assists, was arrested March 30. Gainesville Police said he ordered a taco from a street vendor, got the food and ran away without paying. ...

Roger Clemens Trial, Take 2

Barring an unexpected twist, like a mistrial being declared, U.S. v. Roger Clemens will be heard before U.S. District Judge Reggie Walton over the next four to six weeks.  This is the case's second trial, with last summer's trial being declared a mistrial because prosecutors showed jurors comments by U.S. Congressman Elijah Cummings about his views on the credibility of Andy Pettitte and his wife, Laura.  This is likely the last "major athlete and steroids-related perjury" case that we'll see for many years.  I suspect it will go out with with some fireworks.

I preview the trial for SI.com and also for CNN.

Update on Fantasy Sports and the Law: Change Coming to Maryland

For those who may have missed it, the State of Maryland on April 1, 2012 passed House Bill 7 (pdf): a bill to exempt certain online fantasy sports games from its gambling prohibitions. Instead of prohibiting all fantasy sports games, the bill will allow the state Comptroller to issue special regulations related to the governance of America's fastest growing hobby.

The recent Maryland bill defines "fantasy sports" similarly to how Congress did in the 2006 Unlawful Internet Gambling and Enforcement Act. This means that the bill only applies to fantasy games that are based on skill, have predetermined prize amounts, and derive results from the performance of multiple players across multiple teams.

Based on this definition, it seems likely that Maryland residents will soon be allowed to legally enter and collect prizes in most fee-based fantasy sports contests. Indeed, CBS Sports has already amended its Terms of Service (here) to allow Maryland residents to collect prizes. By contrast, the Yahoo! Terms of Service currently continues to disallow Maryland residents.

For a more thorough discussion of the legality of fantasy sports games as well as a list of states where participating in fantasy sports games remains risky, see my 2012 Harvard law journal article, A Short Treatise on Fantasy Sports and the Law.

You can't tell the players even with a scorecard

Sunday was the 65th anniversary of Jackie Robinson's Major League debut. I went to the game at the new Marlins Park, the $ 500 million public giveaway, and I was glad to be able to explain to my daughter who Robinson was. But MLB did something bizarre. Every singe player wore the # 42, without his name on the jersey. This literally made it impossible to know who was who, not only for geeky fans (like me) trying to keep score and follow player changes, but also for the PA announcer, who clearly made several mistakes in announcing who was pinch-hitting, who was pitching, etc.

I do not get the idea behind this tribute. What does it say to have every single player wear Robinson's number as his number (as opposed to as a sleeve patch), especially when it means every player seems to lose his own identity, at least for fans sitting far from the field (which at Marlins Park is pretty much everyone). Is the meaning that we all are Jackie Robinson, in the sense that all players, regardless of race or ethnicity, owe Robinson a debt? If so, the number 42 does not necessarily tell me that. I have never intimately associated Robinson with that number the way we associate Michael Jordan with 23, Wayne Gretzky with 99, or Mickey Mantle with 7.

Dangers of consequentialism

Here is a nice discussion of the problem of consequentialism in the enforcement of the rules limiting hockey violence. As the author shows, the only way to understand wildly varying punishments in four cases arising in the NHL playoffs is that suspensions were meted out where someone was injuredand weren't imposed when no one was injured, even though the conduct and intent in the non-injury cases may have been worse.

I don't believe the piece goes far enough in condemning consequentialist punishment, however. Yes, the egg-shell plaintiff rule says you are responsible for even-unanticipated harms of your wrongful conduct. But it doesn't define the wrongfulness of the conduct. That is, a non-negligent act does not become negligent because of an egg-shell victim. So smashing a player's face into the glass is not less illegal because that player is uninjured. The focus on consequences and injuries misses that point.

First thing we do . . .

An interesting (and somewhat troubling) aspect of the coverage of the Bobby Petrino story has been the notion that the university decided to fire Petrino only after "the lawyers" got involved. Arkansas's lawyers got into the mix, pointing out the liability to which Petrino may have exposed them. And everyone was scared of the plaintiffs' lawyers representing the 150+ applicants who did not get the job. Mike Wilbon at PTI has been on this point for several days, as have some internet commentators.

As Mike's investigation shows, Petrino breached university hiring protocols and ethics rules, if not state law governing employment, hiring, and perhaps fraud. That is, and ought to be treated as, a far-more-serious offense than violating NCAA regs or having an affair. And it minimizes what he did to pass it off as a matter of "lawyers" getting involved. Maybe they're involved because Petrino did something wrong and/or unlawful.

Special SI.com Investigative Report: How Bobby Petrino Gamed the System

I team up with David Epstein for an investigative SI.com story on Bobby Petrino getting a job for his mistress at the University of Arkansas. We used the Arkansas Freedom of Information Act and some old fashioned digging to uncover pretty incredible revelations.We obtained and then reviewed the resumes of every single person who applied for the football player development position that went to Jessica Dorrell.  We also went through dozens of emails and handwritten notes, and spoke by phone with a number of people connected to the story.  Hope you have a chance to read our report.

Here's an excerpt:

* * *

Former Arkansas football coach Bobby Petrino tried to sidestep University of Arkansas guidelines to quickly hire his mistress, Jessica Dorrell, as the team's player development coordinator, according to documents obtained by SI.com. The documents show that Petrino sought a waiver to circumvent a university affirmative action policy requiring that the job be posted for at least 30 days before interviews could commence. Dorrell's first interview was scheduled even before the waiver was granted by the university's Office of Equal Opportunity and Compliance.

According to the documents, obtained via a Freedom of Information request, the job listing for a player development coordinator to serve the football program was posted on March 4. Five days later, Arkansas athletic director Jeff Long pushed along a request from Petrino and sent a memo to Danielle Wood, the school's assistant director of affirmative action, asking if interviews for the position could begin even though the job had been listed for just five days, not the required 30. "We feel that flexibility is needed," Long wrote.

Records show that on March 12, Carrie DeBriyn, the human resources manager for Arkansas athletics, e-mailed the university's Office of Equal Opportunity and Compliance to ask that the hiring process be expedited at Petrino's behest. The e-mail said, "Coach Petrino would like to request to interview early due to needing a Player Development Coordinator as quickly as possible." Without filling the position quickly, DeBriyn wrote, "we could potentially make a recruiting error with NCAA rules and regulations." At 10:44 a.m. that same day, approval was granted to interview candidates. According to records, however, Dorrell's interviews had already been scheduled and were set to begin at 9:30 that same morning.

Dr. Fritz Polite, sports management professor at Tennessee and director of the Institute for Leadership, Ethics & Diversity, said that Arkansas's haste in brushing aside affirmative action hiring procedures shows that "the power lies with the coach to sidestep rules ... simply because he's winning."

* * *

To read the rest of the report, click here.  To read Andy Staples's communications with a number of the denied candidates, click here.

How to Cure Tanking

Close to five years ago, Mike McCann penned a number of important posts here at the Sports Law Blog pertaining to tanking in sports (links to all of the posts can be found here). Over the course of the past two weeks, ESPN's TrueHoop blog re-visited the issue in-depth with a number of thoughtful posts. One of the TrueHoop posts focused on the research of Adam Gold that was presented at last month's MIT Sloan Sports Analytics Conference. As a follow-up to the conference, the author recently released a video illustrating his findings in the context of the NHL, NFL, and NBA. Tanking is a fascinating topic from both a legal and economic perspective and has direct applicability to sports league policy.

Florida Coastal School of Law Panel on "Title IX: 40 Years and Counting"

Friday, April 13, 2012
10:00 a.m. - 12:00 p.m.
Room 250

The Florida Coastal School of Law Sports Law Society will celebrate the 40th anniversary of the Patsy T. Mink Equal Opportunity in Education Act, or more commonly known as Title IX, by hosting a panel of industry experts. Moderated by Professor Nancy Hogshead-Makar, the panel will discuss the intersection of Title IX, the commercialization of intercollegiate athletics, publicity rights of athletes, and other hot topics within athletics.

Panelists include:

• Amy Perko - Executive Director of the Knight Commission

• Kristen Galles - Civil Rights Attorney, Plaintiff’s counsel in precedent-setting Title IX cases including Mansourian v. U.C. Davis, Biediger v. Qunnipiac and Communities for Equityv. Michigan High School Athletic Association

• Robert Wierenga - Partner, Schiff Hardin, LLP – Anti-trust Defense Counsel for the NCAA, including the In re Student-Athlete Likeness Litigation (N.D. Cal. 2009), In re NCAA 1-A Walk-On Football Players Litigation (W.D. Wash. 2006), White v. Nat’l Collegiate Athletic Ass’n (C.D. Cal. 2006), and Adidas America, Inc. v. Nat’l Collegiate Athletic Ass’n (D. Kan. 1999)

Two upcoming sports law symposia

For info on these events, click on the links to Sports Agent Blog:

• Cleveland-Marshall College of Law’s 2nd Annual Entertainment and Sports Law Association Symposium (Friday April 13) -- includes Harvard Law's sports law guru Peter Carfagna and Bill Belichick's agent, Neil Cornich, among other terrific speakers.

• Amateur Hour: The Commercialization of College Athletics Panel at UMass Amherst (Wednesday April 18) -- incliudes UMass Amherst's sports law guru Glenn Wong and ESPN's Kevin Blackistone and others.

Ozzie Guillen and freedom of speech

I am quoted in a story on CNN about the five-game suspension that the Miami Marlins handed down to manager Ozzie Guillen for his recent comments about Fidel Castro.

Obviously, this is not a First Amendment problem, since no government entity is sanctioning or censoring Guillen. In fact, this is sort of what the First Amendment envisions: Guillen said something and a whole bunch of people are engaging in counter-speech, criticizing him, calling for a boycott, etc. It was the last one that caused the Marlins to engage in their own counter-speech by suspending him, thus expressing their displeasure with his comments. It perhaps would be nice if a large institution such as the Marlins would, in some sense, support free speech values by not sanctioning Guillen for what is clearly protected expression and only tangentially related to his job. But, again, the team has its own interests to protect and its own expressive rights that it may exercise.

Honestly, though, this all seems silly. The Marlins knew Guillen was a loose cannon when they hired him, so it is hard to take their outrage over his comments seriously. The outrage over his comments generally seems unwarranted; Guillen didn't express support or love for Castro, but made the (true) point that folks have been trying to kill Castro for going on 55 years and he's still holding on. But having lived in Miami for almost a decade, I understand and am not surprised by the reaction. Saying anything not negative about Castro is a bit like saying anything not negative about Hitler; I don't buy the equivalence, but that is a matter of perspective.

The Vermont Law School Sports Law Institute announces Blue Chips Program and Board of Advisors

Big news for the Vermont Law School Sports Law Institute: we are announcing our Blue Chips Program and our Board of Advisors.

Blue Chips is designed to provide Vermont Law School students who demonstrate a talent and passion for sports law with (1) core skills in the practice of sports law; (2) hands-on assistance in pursuing jobs, SIPs and other experiences in sports law; and (3) opportunities for research and discussion of contemporary sports law issues.

The Board includes some of the most dynamic and influential persons in the industry. These individuals will help us build one of the nation's leading sports law programs. Their relationship to our school will also foster experiential and employment opportunities for our students and alums.

For more information about The Sports Law Institute, click here.

A Primer on International Basketball Arbitration

The following guest post was written by Claire Zovko of Precise Advisory Group.

As the governing body for the sport of basketball worldwide, Federation Internationale de Basketball (“FIBA”) is responsible for the integrity of basketball at the international level. FIBA is recognized by the International Olympic Committee as the sole competent authority in basketball. In May 2007, FIBA created its own dispute resolution mechanism designed for quick and inexpensive resolution of disputes related to the sport and its participants, i.e. clubs, players and agents. Originally, named the FIBA Arbitral Tribunal (“FAT”), FAT heard two cases in the inaugural year. To emphasize that it operates independently of FIBA, FAT was renamed Basketball Arbitral Tribunal (“BAT”). Within basketball, most disputes relate to unpaid wages and commissions. Almost five years after creation, BAT has heard more than 200 cases.

Disputes are “heard” by a single arbitrator with legal training and sports knowledge appointed by the BAT president. A unique feature of BAT is that the arbitration procedure is conducted in writing and 99% of cases are handled entirely though an online system. In-person hearings can be held upon request, though they rarely are. A BAT arbitral award is delivered within six weeks of the arbitral proceedings. The disputes before BAT are decided not on the basis of a national legal system but on the principle of ex aequo et bono, applying general considerations of justice and fairness without reference to any particular national or international law.

Read the full post here. Claire can be followed on Twitter at @clairezovko

Bobby Petrino's Morals Clause

I have been following with interest this week's developments in the Bobby Petrino matter. I've written in the past about morals clauses in athlete playing, coaching and endorsement contracts (as have other Sports Law Blog contributors). These are clauses that enable the team, university or company to terminate a relationship with an athlete or coach because of "immoral" conduct. I've been able to write about morals clauses a few times because there are consistently scandals, like the Bobby Petrino matter, involving a famous coach or athlete.

Morals clauses can vary widely in the conduct they cover and the remedies they provide. A broad morals clause may allow termination of a contract simply for conduct that the employer determines to be "disreputable." A more restrictive morals clause may allow for termination based only on conviction of a felony. In addition to termination, a morals clause may give the employer other remedies, such as reducing the compensation or length of an agreement, or the extent to which an athlete will be a featured endorser.

Petrino's contract allows the University of Arkansas to terminate him for "engaging in conduct, as solely determined by the university, which is clearly contrary to the character and responsibilities of a person occupying the position of head football coach or which adversely affects the reputation of the (university's) athletics programs in any way." On the face of it, this morals clause would appear to give Arkansas ample basis to terminate Petrino's contract. Even so, it remains to be seen whether it will exercise its termination right. In fact, one of the interesting aspects of morals clauses is that, despite the fact that they can be highly negotiated provisions, employers do not always invoke their rights under such clauses. Even after coaches or athletes have engaged in conduct violating a morals clause, employers make economic decisions whether to continue their association with the coach or athlete engulfed in scandal.

Rick Pitino is just one recent example who survived a scandal, and not all of Tiger Woods's endorsers ended their relationship with him. Because of Petrino's success at Arkansas, and the revenue its football program generates, Arkansas' exercise of its morals clause rights is hardly a certainty. The content of this communication is intended to provide information on recent legal developments. Your use of this information does not create or continue an attorney-client relationship nor should the information herein be construed as legal advise. This communication may constitute "Attorney Advertising" under the New York Rules of Professional Conduct and under the law of other jurisdictions.

Lindsey McDaniel on "NBA: Mirror Image of Summer Youth Basketball Programs"

Several years ago on Sports Law Blog, I debated Lindsey McDaniel, an educator, learning designer and basketball coach in Georgia, about the NBA's age limit and dress code (in short, I opposed them, he supported them).  Lindsey has written the following essay, in which he argues, among other points, that basketball players should spend more time in college and that parents have become far too focused on unrealistic basketball dreams for their children.  Here is the essay:

* * *

NBA: Mirror Image of Summer Youth Basketball Programs

The NBA was once a league of professional basketball players who possessed extraordinary skills. The players were considered the elite of the world due to a combination of athleticism, high basketball IQ, and a strategic mindset which far exceeded others who played the game for fun. The followers and fans of the game ranged from the executives in the boardroom to those who stood outside praying for a ticket to sit courtside. The child’s game in which Dr. Naismith created was perfected into an artistic expression of competition, where the individuals worked diligently to better their game, in order to be amongst the elite who played in the NBA. However, somewhere over time, the NBA took a turn for the worse when the opportunity to earn a substantial amount of money began to overshadow the ability to play a child’s game for fun and competition.

In the year 2004 the USA Olympic team which was comprised of players from the NBA, returned home with the Bronze Medal. In 1992, the first Olympic team with NBA players finished a rout of the Olympics, and brought home the Gold Medal with relative ease. The departure of those great players from the 1992 team has left a league which is in constant deterioration. The talented, skilled, and high basketball IQ players are outnumbered today by the money driven, selfish (THE DECISION), one on one, low basketball IQ, and all about me players. The debacle at the Olympics in 2004 was chalked up to as the rest of the world is catching up with the USA in regards to basketball talent. My thoughts on this are, the rest of the world is not catching up, but instead USA basketball is falling behind. The international game of basketball continues to appreciate the game the way Dr. Naismith intended it to be played. The international game works diligently on fundamentals, and strives to take one of the 400 spots at the NBA level. Therefore, it is not a coincidence when more and more international players are being drafted in the first round. It is not a coincidence that the champions of the NBA have at least one international player making a significant impact on their respective teams. However, home for the NBA is right here in the land of opportunity, the good old USA, and the talent pool is still primarily drawn from home grown soil. We have kids who are being sold false-dreams and convinced to enter the NBA draft, when they don’t have the strategic mindset or the mental capability to play at such a high level. However, he can perform a majestic dunk of a basketball, but don’t dare ask him to spell majestic in the interview after the game. So many can and would benefit from attending college a few more years, if they had their priorities in order, but how can you expect them to have their priorities in order when their parents are already shopping for their new Escalade.

One may not believe it, but at one time there was respect in this beautiful game. However, the potential to earn millions of dollars has spread like cancer, and is causing some coaches, parents, players from the professional level down to the grade school level to make some decisions which are borderline unethical. It is quite obvious there are some collegiate basketball programs which are now considered “one and done universities”, and there campus is only a pit-stop before the NBA draft. Therefore, since the draft is a few months away, why not pretend to attend some classes, and play some pick-up ball called March Madness. A downright disgrace and slap in the face to the programs who promote student-athletes first. Meanwhile the players at the amateur level are being groomed as early as 9 years old in summer basketball programs, which will ultimately form a loyalty allegiance as they get older; thus leading to a kid with superior talent either attending a school out of district or even out of state, as the super-teams are aligned. So why should this even matter, because the only sufferers are the high schools and districts where these students should have attended, if things were done ethically correct.

I realize that many probably want to blame the coaches at the amateur level, but in actuality the real blame should be placed on those parents who want to live their dream through their children, the same parents who see their child as a winning lottery ticket. Meanwhile they are easily convinced by these amateur coaches that their child is the next Michael Jordan, and focusing on basketball should be their number one priority. Some of these parents buy so easily into this grand scheme that they are willing to forfeit a year of their child’s education by having their child repeat a grade, so their athletic ability will far exceed the other kids they play against. Then there are the parents who have a child with average athletic ability, but the mere thought of being asked to play for an elite summer league basketball program is an honor. The coaches wow them with the mention of traveling across the United States, nice uniform, shoes, and a gym bag. Then they are told they will receive all of this for $1000 or more in some organizations. However, what they fail to realize is that the top players on these summer league basketball programs, they don’t have to pay. The coaches need them, therefore they are granted what the coaches call “scholarships”. So the question is; who is paying for those “scholarships”? The parents of the average athletic ability players foot the bill without even knowing it. Then again some of them do know it, but they could care less because their child is with an elite summer league basketball program.

As you see the NBA is becoming a mirror image of those Summer Youth Basketball Programs, so I fail to see why it is necessary to pay top-dollar at an NBA arena, when I can visit the local gym or park. If you look closely, the board executives aren’t courtside like they use to be, because you can rent And-1 mixed tapes and easily watch from the comfort of your home, at a minimal cost.

The opinion expressed in this my article is solely mine alone. (for now)

Regards,
Mr. Lindsey H. McDaniel III

Freakonomics and cheering speech

Interesting Freakonomics Podcast (beginning at 28:00) from a few weeks ago, discussing booing at sporting events, art, and politics. It had some interesting tidbits that I can use when I return to writing on the subject.

One is that the Colonies brought over from England the concept of "audience sovereignty," which vested in the audience the right to boo and jeer political speakers--precisely what Alexander Meiklejohn eliminated from his theory of the freedom of speech. The second is the story of Johnnie LeMaster, a light-hitting shortstop for the San Francisco Giants. In 1979, LeMaster made some comments opposed to gay rights, causing fans to boo him continuouslys. After several wrrks LeMaster had a jersey made up with "Boo" on the back and wore it for a game, which immediately won fans over. And third is an interview with former Pennsylvania Governor and Philadelphia Mayor Ed Rendell, who talked about booing, especially when politics intervenes in sports.

Tim Tebow and Reviewing Contracts

With Tim Tebow now officially a Jet, I wanted to initiate my blogging by addressing a simple but important point. 

According to reports, the trade of Tebow to the Jets hit a snag because of language in his contract relating to the payment of salary advances.  Eventually the Broncos and Jets resolved whatever issue there might have been, reportedly by splitting the $4 million plus at issue.  Mike Tannenbaum the general manager of the Jets, himself is a lawyer and the Jets have high-quality legal talent that they turn to for contractual and other legal issues, so I have no doubt that they handled this situation properly and there were in fact no surprises to Tebow's contract. 

The issue that this situation highlighted for me is the importance of involving lawyers early on in an contractual review process, or other legal matter, when they can provide the advice that will set the transaction on the right course and avoid problems down the road.  Without legal advice at an early stage, transactions can get off track and by the time lawyers are asked to get involved, the task of fixing the problem is often a more time-consuming and expensive one than had the lawyer been involved from the outset.  This is as true in the sports context as any other.

New Sports Law Blog Contributor: Brian Socolow

We're thrilled that sports attorney Brian Socolow will be blogging for us.

Brian is chair of the sports practice at the national law firm of Loeb & Loeb LLP.  His practice includes the representation of individuals and organizations in the sports industry in a wide range of legal matters, including intellectual property and technology issues, television and media agreements, the  purchase and sale of assets, risk management and litigation.  He represents companies such as The Burton Corporation and Hillerich & Bradsby, promoters of sporting events, and others involved in the industry.

Brian is a frequent lecturer and contributor to publications on topics ranging from intellectual property to sports marketing and has been named a New York Super Lawyer for Sports and Entertainment 2009-2012.  He's a graduate of the University of Virginia School of Law and Yale University.

Great to have him on board.

Pay For Play: NCAA Athletics as Opportunity or Exploitation?

The West Virginia University College of Law Sports & Entertainment Law Society is proud to present a panel presentation entitled "Pay for Play: NCAA Athletics as Opportunity or Exploitation?" on Wednesday, April 4, 2012, at 12 noon in the Marlyn Lugar Courtroom, in beautiful Morgantown, West Virginia.

The event is free and open to the general public. The panel features Ramogi Huma (President, National College Player's Association), Mike Parsons (Deputy Athletic Director, West Virginia University), Dan Fulks (Professor at Translyvania University and NCAA Research Consultant), and andré douglas pond cummings (Professor of Law, West Virginia University College of Law).

New Sports Law Scholarship

Recently published scholarship includes:

Craig D. Alfred, Comment, The illusion of amateurism: a climate of tortious interference in the world of amateur sports, 86 TULANE LAW REVIEW 465 (2011)

Joanna Shepherd Bailey & George B. Shepherd, Baseball’s accidental racism: the draft, African-American players, and the law, 44 CONNECTICUT LAW REVIEW 197 (2011)

Jonathan D. Bateman, When the numbers don’t add up: oversigning in college football, 22 MARQUETTE SPORTS LAW REVIEW 7 (2011)

Mitchell N. Berman, “Let ‘em play”: a study in the jurisprudence of sport, 99 GEORGETOWN LAW JOURNAL 1325 (2011)

Mitchell N. Berman, Replay, 99 CALIFORNIA LAW REVIEW 1683 (2011)

Simon Bernstein, Note, Salary caps in professional sports: closing the Kovalchuk loophole in National Hockey League player contracts, 29 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 375 (2011)

Deanna Brock, Note, BCS Europa: an analysis of the Bowl Championship Series under the European Commission White Paper on Sport, 39 GEORGIA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 303 (2011)

Ariel Y. Bublick, Note, Are you ready for some football?: how antitrust laws can be used to break up DirecTV’s exclusive right to telecast NFL’s Sunday Ticket Package, 64 FEDERAL COMMUNICATION LAW JOURNAL 223 (2011)

Debra D. Burke & Angela J. Grube, The NCAA Letter of Intent: a voidable agreement for minors?, 81 MISSISSIPPI LAW JOURNAL 265 (2011)

Timothy J. Bucher, Comment, Inside the huddle: analyzing the mediation efforts in the NFL’s Brady settlement and its effectiveness for future professional sports disputes, 22 MARQUETTE SPORTS LAW REVIEW 211 (2011)

Scott Bukstein, A new solution for salary disputes: implementing salary arbitration in the National Basketball Association, 22 MARQUETTE SPORTS LAW REVIEW 25 (2011)

John Cates, Note, Making the game beautiful again: lessons from Brazil provide a roadmap for rebuilding soccer in Nigeria, 39 GEORGIA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 365 (2011)

Peter Charlish, The biological passport: closing the net on doping, 22 MARQUETTE SPORTS LAW REVIEW 61 (2011)

Leah M. Chamberlin, Note, Student athletes and the deprivation of rights of privacy and publicity—are fantasy sports leagues infringing upon the rights of college athletes? If so, what constitutes a viable solution?, 88 UNIVERSITY OF DETROIT MERCY LAW REVIEW 555 (2011)

Natalie L. St. Cyr. Clarke, Note, The beauty and the beast: taming the ugly side of the people’s game, 17 COLUMBIA JOURNAL OF EUROPEAN LAW 601 (2011)

Jennifer Ann Cleary, Note, A need to align the modern Games with the modern times: the International Olympic Committee’s commitment to fairness, equality, and sex discrimination, 61 CASE WESTERN RESERVE LAW REVIEW 1285 (2011)

Michael A. Corgan, Comment, Permitting student-athletes to accept endorsement deals: a solution to the financial corruption of college athletics created by unethical sports agents and the NCAA’s revenue-generating scheme, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 371 (2012)

Shawn M. Crincoli, You can only race if you can’t win? The curious case of Oscar Pistorius & Caster Semenya, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 133 (2011)

Ross E. Davies, The law firm and the League: the legal and electronic connections between Morgan, Lewis & Bockius LLP and Major League Baseball, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 215 (2011)

Michael R. Daum, Intelligent defense: a call for federal regulation of mixed martial arts, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 247 (2011)

Jérôme de Montmollin & Dmitry A. Pentsov, Do athletes really have the right to a fair trial in “non-analytical positive” doping cases?, 22 AMERICAN REVIEW OF INTERNATIONAL ARBITRATION 187 (2011)

Nicole M. DeMuro, Comment, Reestablishing the role of arbitration in labor law: avoiding the perils of Williams with the rationale of Pyett, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 467 (2011)

David D’Orlando, Comment, 6+5 = discrimination? Why FIFA’s proposed quota rule doesn’t add up, 115 PENN STATE LAW REVIEW 749 (2011)

Chris Deubert, Glenn Wong & John Howe, All Four Quarters: A Retrospective and Analysis of the 2011 Collective Bargaining Process and Agreement in the National Football League, 19 UCLA ENTERTAINMENT LAW REVIEW 1 (2012)

Chris Deubert, Putting Shoulder Pads on Schleck: How the Business of Professional Cycling Could Be Improved Through a More American Structure, 37 BROOKLYN JOURNAL OF INTERNATIONAL LAW 65 (2011)

Christian Dennie, Changing the game: the litigation that may be the catalyst for change in intercollegiate athletics, 62 SYRACUSE LAW REVIEW 15 (2012)

Dana A. Gittleman, Casenote, Home field advantage: determining the appropriate "turf” for Williams v. National Football League and clarifying preemption precedent, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 203 (2012)

Zachary Golden, Note, Is this heaven? No, it’s I.O.U.: why Major League Baseball must modify its current revenue-sharing and luxury-tax procedures, 45 SUFFOLK UNIVERSITY LAW REVIEW 125 (2011)

Martin J. Greenberg & Dennis Hughes, Jr., Sports.comm: it takes a village to build a sports facility, 22 MARQUETTE SPORTS LAW REVIEW 91 (2011)

Justin P. Grose, Comment, Time to bury the tomahawk chop: an attempt to reconcile the differing viewpoints of Native Americans and sports fans, 35 AMERICAN INDIAN LAW REVIEW 695 (2010-2011)

Nicholas Hailey, Note, A false start in the race against doping in sport: concerns with cycling’s biological passport, 61 DUKE LAW JOURNAL 393 (2011)

Elise M. Harris, Book Note, Reviewing Roger I. Abrams, Sports Justice: The Law and Business of Sports, 22 MARQUETTE SPORTS LAW REVIEW 309 (2011)

Todd Henderson, Note, The English Premier League’s Home Grown Player rule under the law of the European Union, 37 BROOKLYN JOURNAL OF INTERNATIONAL LAW 259 (2011)

William D. Holthaus,, Jr., Note, Ed O’Bannon v. NCAA: do former NCAA athletes have a case against the NCAA for its use of their likenesses?, 55 ST. LOUIS UNIVERSITY LAW JOURNAL 369 (2010)

Katherine Kaso-Howard, Comment, American Needle, Inc. v. National Football League: Justice Stevens’ last twinkling of an eye, 44 LOYOLA LOS ANGELES LAW REVIEW 1163 (2011)

Kelli Amanda Metzger Knerr, Comment, Beanballs and baseball: private remedies vs. criminal sanctions for violence in baseball, 115 PENN STATE LAW REVIEW 727 (2011)

Trevor Levine, Note, Two worlds collide: salary arbitration for NHL players in the salary cap era, 26 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 729 (2011)

Johan Lindholm, The problem with salary caps under European Union law: the case against financial fair play, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 189 (2011)

Jami A. Maul, Comment, America’s favorite “nonprofits”: taxation of the National Football League and sports organizations, 80 UMKC LAW REVIEW 199 (2011)

Eric Meer, Note, The Professional and Amateur Sports Protection Act (PASPA): a bad bet for the states, 2 UNLV GAMING LAW JOURNAL 281 (2011)

Michelle L. Modery, Comment, Injury time-out: justifying workers’ compensation awards to retired athletes with concussion-caused dementia, 84 TEMPLE LAW REVIEW 247 (2011)

John M. Newman, Note, Raising the bar and the public interest: on prior restraints, “traditional contours,” and constitutionalizing preliminary injunctions in copyright law, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 323 (2011)

Kimberly Nakamaru, Note, Mining for Manny: electronic search and seizure in the aftermath of United States v. Comprehensive Drug Testing, Inc., 44 LOYOLA LAW LAW REVIEW 771 (2011)

Logan O’Shaughnessy, After review: an open letter to NFL Commissioner Roger Goodell suggesting that limiting the League’s disciplinary power under the personal conduct policy may be in the League’s best interests, 88 UNIVERSITY OF DETROIT MERCY LAW REVIEW 527 (2011)

Sarah A. Padove, Comment, Topps gets exclusive license, leaving Upper Deck on the bench: an analysis of Major League Baseball’s antitrust exemption in the modern era, 22 MARQUETTE SPORTS LAW REVIEW 235 (2011)

Alan Pogroszewski & Kari Smoker, Cross-checking: an overview of the international tax issues for professional hockey players, 22 MARQUETTE SPORTS LAW REVIEW 187-209 (2011)

Nicholas Pompeo, Note, DNA to play: Major League Baseball’s use of DNA testing on Central and South American prospects in the age of the Genetic Information Nondiscrimination Act of 2008, 21 HEALTH MATRIX 627 (2011)

Stephen F. Ross, The Supreme Court’s renewed focus on inefficiently structured joint ventures, 14 UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 261 (2011)

Heather R. Quick, Note, Privacy for safety: the NCAA sickle-cell trait testing policy and the potential for future discrimination, 97 IOWA LAW REVIEW 665 (2012)

Ryan Richman, Note, Title IX: the Trojan horse in the struggle for female athletic coaches to attain equal opportunities in intercollegiate sports, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 376 (2011)

Daniel A. Schwartz, Note, Shutting the back door: using American Needle to cure the problem of improper product definition, 110 MICHIGAN LAW REVIEW 295 (2011)

2011 Seton Hall University School of Law Sports and Entertainment Law Symposium: Professional and Ethical Dilemmas Facing Attorneys Representing Entities, Athletes and Entertainers,21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 381 (2011)

Jennifer V. Sinisi, Casenote, Gender non-conformity as a foundation for sex discrimination: why Title IX may be an appropriate remedy for the NCAA’s transgender student-athletes, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 343 (2012)

Thomas L. Skinner, III, Note, The pendulum swings: Commerce Clause and Tenth Amendment challenges to PASPA, 2 UNLV GAMING LAW JOURNAL 311 (2011)

Ari J. Sliffman, Comment, Unconstitutional hosting of the Super Bowl: anti-ambush marketing clean zones’ violation of the First Amendment, 22 MARQUETTE SPORTS LAW REVIEW 257 (2011)

Bari Solomon, Comment, Friend or foe? The impact of technology on professional sports, 20 COMMLAW CONSPECTUS 253 (2011)

Brad Taconi, Third and extremely long: why the elimination of the BCS seems all but impossible, 4 JOURNAL OF BUSINESS, ENTREPRENEURSHIP & LAW 181 (2010)

Brian D. Tobin, The virtues of common law theories and disclosure requirements in the market for fine art, 21 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 333 (2011)

Joseph P. Trevino, Comment, The WIAA as a state actor: a decade later, Brentwood Academy’s potential effect on Wisconsin interscholastic sports, 22 MARQUETTE SPORTS LAW REVIEW 287 (2011)

Davis Walsh, Note, All a Twitter: social networking, college athletes, and the First Amendment, 20 WILLIAM & MARY BILL OF RIGHTS JOURNAL 619-650 (2011)

Sidd Finch at 25

Not law-related, but definitely sports related: Today marks the 25th anniversary of Sports Illustrated's publication of The Curious Case of Sidd Finch, a long-form essay by George Plimpton, about a mysterious person in the Mets training camp who had spent much of his life living a spiritual life in the mountains of Tibet and who threw160 mph. It also turned out to be the greatest April Fools joke ever. In fact, the first letter of each word in the sub-head ("He's a pitcher, part yogi and part recluse. Impressively liberated from our opulent life-style, Sidd's deciding about yoga") spells out "Happy April Fools Day").