Sports Law Blog
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Saturday, July 19, 2014
 
Distractions and misdirections on Chris Kluwe

Two thoughts on the Vikings' report about the release of punter Chris Kluwe and anti-gay comments by the team's special teams coach. The coach, Mike Priefer, was suspended for three games (reduced to two if he attends sensitivity training); the report describes him as a good man who made a mistake and said a bad thing. The report insists that Kluwe was released because of performance and contract, not because of his gay-rights/marriage equality activism.

1) The report concludes that the Vikings were not concerned with the content of Kluwe's advocacy, but with the fact of his advocacy and the "distraction" it was creating. While it perhaps gets the team out from liability for retaliation, the notion that players are doing something wrong--something that justifies cutting them--by being politically engaged is a pretty reprehensible stance for the team to take. The NFL (and all professional sports leagues) makes a big deal of how all the charitable work players do--in fact, much of this work is required of the players. The league supposedly wants its players to be engaged. But it is beyond hypocritical and paternalistic to punish a player for having enough of an engaged mind to pick his own causes. And someone needs to excise the word "distraction" from teams' vocabulary. Most people in most walks of life can do their jobs just fine even while taking some time to think, speak, and write on political issues. We need to get past the idea that professional athletes are different.

2) The report mentions Kluwe (and others) making raunchy jokes about Jerry Sandusky; Pro Football Talk's Mike Florio (acting as shill for the Vikings and the NFL)  highlighted this in a series of tweets, repeating what he was told by anonymous league sources. Of course, none of this matters if/when Kluwe sues the Vikings, since none of it would be admissible under evidence rules. And that is for the better. While the rules of evidence are often criticized for leaving out important information and giving fact-finders less than the whole story, they also serve to remove stuff that is meant as little more than misdirection. It should be obvious that there is a world of difference between admittedly tasteless jokes targeting the wrongdoer (not at his victims) and at the school that harbored the wrongdoer, and an explicit call to kill all members of a class of people based on hatred of members of that class. But clearly it is not that obvious, as Florio (who does not seem like the smartest guy anyway) has demonstrated. So the rules help us keep our focus.

Monday, July 14, 2014
 
Busy Stretch on Sterling, O'Bannon, Redskins, Painkillers, Insider Trading, LeBron, Carmelo, A-Rod, Dan Marino, Johnny Manziel, Ken Feinberg . . .


Since the Donald Sterling story broke on April 26, I've written 41 columns for Sports Illustrated, SI.com, MMQB and Golf.com.  The last 10 weeks have been a busy stretch! I have a week's worth of columns from last week's Sterling hearing that I didn't get a chance to blog on.  In general, I haven't had a chance to blog, but I'm grateful that others on our blog have contributed with excellent posts.  I appreciate the great insights in these columns from Robert Raiola, Alan Milstein, Larry Coon, Daniel Wallach, Warren Zola, Mark McKenna and Eugene Egdorf.  I also received outstanding feedback by e-mail and on Twitter, and am grateful to all of the readers.

Here are the links to the 41 columns:

  1. How does Sterling trial's inability to finish on time impact Ballmer deal?, SI.com (July 10, 2014)
  2. Donald Sterling verbally attacks everyone in Day 3 of landmark trial, SI.com (July 9, 2014)
  3. Donald Sterling says NBA 'not to be trusted' during lawsuit testimony, SI.com (July 8, 2014)
  4. Donald Sterling no-shows for first day of hearings in lawsuit against wife, SI.com (July 7, 2014)
  5. Examining Donald Sterling's lawsuit and how it impacts the NBA, SI.com (July 6, 2014)
  6. LeBron’s free agency: By the numbers, SI.com (July 1, 2014) (with Robert Raiola)
  7. O'Bannon v. NCAA: With trial over, what comes next?, SI.com (June 30, 2014)
  8. NCAA makes strong counterargument to close O'Bannon trial, SI.com (June 28, 2014)
  9. O'Bannon team calls NCAA a 'cartel,' while NCAA defends business model, SI.com (June 26, 2014)
  10. The legal importance of fan interest in the O'Bannon trial, SI.com (June 25, 2014)
  11. O'Bannon v. NCAA: Do schools make or lose money on sports?, SI.com (June 23, 2014)
  12. Understanding the cancellation of the Redskins’ federal trademark, SI.com (June 18, 2014)
  13. How much Carmelo Anthony can make as an NBA free agent, SI.com (June 18, 2014) (with Robert Raiola)
  14. Sources: NBA unfazed by Sterling’s lawsuit, could countersue, SI.com (June 13, 2014)
  15. With Clippers sale off, a look at legal strategies for Sterling, NBA, SI.com (June 10, 2014)
  16. NCAA reaches settlement with Keller plaintiffs: What does it mean?, SI.com (June 9, 2014)
  17. Proving Phil Mickelson engaged in insider trading requires more than suspicion, Golf.com (June 8, 2014)
  18. Could O’Bannon v. NCAA case settle before trial begins?, SI.com (June 7, 2014)
  19. Ed O’Bannon v. the NCAA: A complete analysis before the trial, SI.com (June 5, 2014)
  20. The end of the Donald Sterling saga is a victory for the NBA, SI.com (June 4, 2014)
  21. Hall of Fame QB Dan Marino latest to sue over NFL concussions, SI.com (June 2, 2014)
  22. Sterling will argue privacy, breach of contract in lawsuit vs. NBA, SI.com (May 31, 2014)
  23. NBA scores legal victory with Sterling indemnity, SI.com (May 30, 2014)
  24. NBA’s checklist before approving sale of Clippers, SI.com (May 30, 2014)
  25. Source: NBA may fast track Sterling’s sale of Clippers, SI.com (May 29, 2014)
  26. Analyzing Donald Sterling’s response to the NBA’s lifetime ban , SI.com (May 28, 2014)
  27. Why the NBA won’t cede control of Clippers to Shelly Sterling, SI.com (May 23, 2014)
  28. The NFL’s Painkiller Problem, MMQB.com (May 22, 2014)
  29. Donald Sterling vs. the NBA: A legal primer, SI.com (May 19, 2014)
  30. Source: Donald Sterling refuses NBA sanctions, threatens to sue, SI.com (May 15, 2014)
  31. New double-murder charges devastating for Aaron Hernandez, SI.com (May 15, 2014)
  32. How the NBA can keep the Sterling family away from the Clippers, SI.com (May 15, 2014) (with Larry Coon)
  33. State taxes may compel Johnny Manziel to avoid Ohio residency, SI.com (May 13, 2014)
  34. The potential legal fallout from Donald Sterling’s CNN Interview, SI.com (May 13, 2014)
  35. New evidence released in Alex Rodriguez case, but his options are limited, SI.com (May 12, 2014)
  36. Process and Power, Sports Illustrated (May 12, 2014 issue), at 16 – 18
  37. NBA beginning to determine legal strategy in Donald Sterling case, SI.com (May 9, 2014)
  38. Donald Sterling’s next move? Delay, delay, delay, SI.com (May 7, 2014)
  39. Ken Feinberg sheds light on FCAA, how compensation could be handled, SI.com (May 7, 2014)
  40. Donald Sterling, NBA set for epic legal fight over Los Angeles Clippers, SI.com (Apr. 29, 2014)
  41. What’s next for the NBA in Donald Sterling case from a legal standpoint?, SI.com (Apr. 26, 2014) 


    Sunday, July 13, 2014
     
    The risk to catalyzed fans

    As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.

    This demonstrates the risk in Mike, Dan Markel, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.

    Saturday, July 12, 2014
     
    It wasn't the alcohol, stupid

    Reading Jimmy's posts on the Bryan Stow verdict, I was struck by how wrongheaded and offensive the Dodgers attempts to blame Stow were. Jimmy points to the principle that drunk people need safe conditions.

    But the real issue here was not that Stow was drunk; it was that he was wearing a Giants jersey and "yelling and raising his hands," which the Dodgers argued (and perhaps will continue to argue) provoked the fight. The two assailants targeted him because of his cheering, not his drunkenness. While Stow perhaps yelled louder (and perhaps more obnoxiously) because he was drunk, this is an attack that might have happened even if he was sober and cheering for his team. Alcohol was a distraction here--really an effort by the Dodgers to paint him as an irresponsible person--one that did not fool the jury.

    Taken seriously, the Dodgers argument would mean that if you cheer for the other team too loudly, you are, at least partly, responsible for any beating that comes your way. And that they are not responsible for protecting you on their property.






    Friday, July 11, 2014
     


    My breakdown of the verdict in the beating of Giants fan Bryan Stow outside Dodgers Stadium, and what's next.

    An interesting precedent from 1985, also involving drunken fans fighting in the Dodgers Stadium parking lot, in which a jury verdict for the plaintiffs was overturned on appeal. In that case, the Court of Appeals of California ruled that the lack of security itself wasn't enough to prove negligence by the team; the plaintiffs had to show that the extra police would have prevented the fight.

    As the court wrote in Noble v. Los Angeles Dodgers:

     "It would be intolerable and grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were 'inadequate,' especially in light of the fact that the decision would always be rendered in a case where the security had in fact proved to be inadequate."

    (h/t to Widener Law professor Christopher Robinette at TortsProf Blog for pointing me in the right direction.)

    The Stow jury also rejected claims that he was responsible for his own beating because he was drunk.  (His blood-alcohol content was .18 percent). As the court wrote in Robinson v. Pioche -- way back in the Gold Rush era -- when a drunk man fell in a hole in the sidewalk: "A drunken man is as much entitled to a safe street as a sober one, and much more in need of it."

    Wednesday, July 09, 2014
     
    Now for a meritorious lawsuit

    The Dodgers have been found liable in the beating of a Giants fan Bryan Stow in the parking lot on Opening Day 2011. The jury found the Dodgers 25 % liable and awarded just under $ 18 million. The two men who assaulted Stow were each found 37.5 % liable. The news stories do not say whether the two were parties to the case or whether there is joint-and-several liability allowing Stow to recover the full amount from the Dodgers. Then-Dodgers owner Frank McCourt was found not personally liable.

    Update: Deadspin is reporting that Stow will recover $ 4.5 million from the Dodgers, which seems to suggest several liability only. A torts professor tells me: 1) California only has several liability for non-economic damages and 2) Some states (not sure about California) only have several liability for intentional torts. In this case, it is not clear from reports how much of the $ 18 million was economic and 2) The Dodgers were found liable for negligence, while the two assailants would have been on the hook for assault/battery. So where does that leave us? Anyone with knowledge of California tort law, please advise.

    Further Update: Christopher Robinette  (Widener and the TortsProf Blog) emails this story from CNN, which includes comments from Stow's lawyer about the judgment. Of the $ 18 million, $14 is for economic damages (past and future medical expenses) and $ 4 million is for non-economic damages (pain and suffering); Stow can collect $ 15 million from the Dodgers--all $ 14 million for economic damages and $ 1 million in non-economic, reflecting the Dodgers' 25 % liability.  According to Christopher, this is consistent with common tort rules in many states, under which there is joint-and-several liability for economic damages, but several liability for non-economic damages. The Dodgers can bring contribution actions against the two assailants for their share of the $ 14 million, although that is highly unlikely, since these guys are basically judgment-proof.

     
    The dumbest lawsuit in history

    This civil action by the Yankees fan who fell asleep at a game, and got made fun of on-air and on the internet, takes the prize. As I told one reader who was surprised that I had not written about it yet, I was not sure how to stretch "this is one of the dumbest lawsuits ever and will be dismissed very quickly" into a full blog post. I imagine this one might be bad enough to justify sanctions. The case does bring back memories of Neff v. Time, Inc., a 1976 federal district court decision in a lawsuit brought by a fan at a Steelers game who was pictured in Sports Illustrated with his fly down.





    Monday, July 07, 2014
     
    Future of O'Bannon v. NCAA lawsuit, LeBron's potential earnings & In Re Sterling Family Trust

    I have several new columns for SI.com, including one on LeBron James that I've co-authored with Robert Raiola, CPA:

    Monday, June 30, 2014
     
    Infield fly suit is in effect

    The controversial infield fly call in the 2012 National League Wild Card Game produced a ten-minute stoppage as Atlanta fans threw debris onto the field. It also sent me on my scholarly bender over the rule. And now it has produced civil litigation, in the form of a civil lawsuit by one fan who claims he suffered significant injuries when a security guard pulled him from his seat and tried to eject him from the stadium (apparently in violation of Braves policy).

     
    Be Fruitful and Multiply (but check with the league office first)

    The issues are always interesting at the intersection of Bioethics and Sports Law. Robert Mathis, one of the top linebackers in the NFL, recently received a four game suspension for testing positive for the drug Clomiphene, better known by its trade name Clomid.

    The drug is on the NFL’s banned substance list because it increases testosterone, an anabolic steroid naturally produced by the human body. But is it a performance-enhancing drug? Only if the performance being considered is that oldest of human physical endeavors: making babies.

    Clomiphene is actually a selective estrogen receptor modulator or SERM. It is by far the most widely prescribed fertility drug for women and is also prescribed off-label for men. The theory is that if you lower the body’s production of estrogen you increase the production of testosterone and sperm counts rise.

    The Indianapolis Colt and his wife already had three children but they wanted a fourth grandchild for Mathis’s mother when she was diagnosed with stage 4 cancer. The couple sought the assistance of Atlanta fertility doctor Steven Morgenstern, who prescribed the Clomid for Mathis to increase the probability of early conception. As soon as Ms. Mathis became pregnant, her husband went off the drug. But a random NFL drug test detected the presence of Clomiphene which stays in the body for some time after discontinuation.

    In a written statement the NFL coldly explained: "A cornerstone of the program is that a player is responsible for what is in his body. Consistent application of the policy's procedures is critical to the integrity of the program."

    One question is whether intent should play a part in the NFL’s enforcement of its rules. Should it matter if Mathis’s only intention was to “perform” better off the field not on it? The league says players should check with them before taking any substance prescribed by a physician. Indeed, the NFL rules provide for a Therapeutic Use Exception or TUE, but a player must first apply with his physician for the right to take a banned substance for therapeutic reasons. Mathis says he never thought whether a fertility drug could be on the banned list and the doctor says he, too, never made the connection.

    In what job, however, does anyone have to share such personal and private matters with his employers? The decision to have a child under difficult circumstances should remain a personal matter even for NFL linebackers and, when it comes to such life decisions, the NFL should stay on the sidelines.

    Sunday, June 29, 2014
     
    Catalyzing Miami Heat fans

    Catalyzing Fans--the article by Mike, Dan Markel, and me--is forthcoming in Harvard Journal of Sports and Entertainment Law. But its basic idea may be taking root.

    LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.

    This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.

    Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.

    Saturday, June 28, 2014
     
    O'Bannon v. NCAA trial ends

    The trial of Ed O'Bannon v. NCAA has ended.  A decision by U.S. District Judge Claudia Wilken is expected by early August. Here's my report from Oakland, California on what was a dramatic conclusion to the trial.

    Friday, June 27, 2014
     
    What is a "cartel"?

    This question was at the center of today's proceedings in the O'Bannon v. NCAA trial.  Here's my report from Oakland.

    Thursday, June 26, 2014
     
    On soccer

    Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).

    I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.
    First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.


    If we want to test the "not enough scoring" explanation, the proper comparison is other timed sports, sports in which the only goal is score more points than the other team within a given period of time. And the two major timed U.S. sports--football and basketball-- both involve a lot of scoring.
    Second, Post argues that there is "wa-a-a-y too much failure" in soccer and Americans do not like failure. (He adds that the hardest skill in sport is not hitting a baseball, but kicking a soccer ball into the net in a game). Comparisons aside, there still is an awful lot of failure in baseball--the offense fails in more than 75 % of those individual encounters and the greatest individual hitter fails 65 % of the time. Of course, if we focus on the individual encounters in baseball and getting outs as a team's contemporaneous goal, that sense of failure goes away, because we can say the pitcher/defense succeeds in 75 % of those individual encounters.

    Third, Americans and American sports media gravitate to individual star players and those stars are more obvious in the big American sports than in soccer because it is easier to see the "star" plays they make. We see LeBron James making shots, we see Peyton Manning throwing touchdown passes, we see Mike Trout hitting home runs or Stephen Strasburg striking people out. And, particularly in basketball, one player makes the difference--in the NBA, the team with the best player in a series generally wins the series. Because we see Lionel Messi score less frequently, we have less of a sense of him as a star making "star plays" (at least plays that produce success). And one star player is less able to dictate soccer outcomes--after all, Portugal's Cristiano Ronaldo is regarded as the best player in the world and his team did not get out of the "Group of Death."

    Fourth, I agree with Post about the randomness and caprice involved in soccer. Football, and to a lesser extent basekball, involves precise plays and much less of the free-wheeling running that soccer seems to entail. While all sports involve a bit of luck at the margins, soccer seems to rely on more of it.

    Finally, Rogers makes some good cultural and sociological arguments for why America went in the direction of football and basketball rather than soccer. I would add one pont. MLS and professional soccer in this country is said to not be successful because it is not as big as the NBA, NFL, and MLB. But part of the problem has been the insistence on measuring MLS success (monetary and attendance) compared with the sucess of today's other leagues, as opposed to how those leagues looked when they were twenty years old.  The NFL was founded in the 1920s (and no one one really cared about it until the 1950s), the NBA in the 1940s; it is ridiculous to measure a nascent soccer league against those mature leagues. In 1925, the early days of modern Major League Baseball, no team had more than 1 million in attendance; in 1955, the midpoint of baseball's so-called Golden Age, only eight teams had more than 1 million in attendance and only one had more than 2 million; in 2013, every team had more than 1 million and eight teams had more than 3 million. So the question should not be if soccer is earning the same attendance or money as the other three leagues; it should be how it is doing for a new sports league. And by most measures, the answer to that question seems to be "quite well."

     
    The legal importance of fan interest in the O'Bannon v. NCAA trial

    I have a new Sports Illustrated column on the O'Bannon trial.  It's been an incredible experience to report on the trial.  Looking forward to the last two days tomorrow and Friday.