Sports Law Blog
All things legal relating
to the sports world...
Thursday, August 28, 2014
Does Josh Gordon have a legal case against the NFL?
In a new column for Sports Illustrated, I'm pessimistic that Josh Gordon -- suspended for the 2014 season -- would be able to take on and beat the NFL in court.
Donald Sterling fails to file timely appeal to California Supreme Court
Dan Wallach noticed and investigated that Donald Sterling failed to file an appeal to the California Supreme Court by Monday's deadline. I write about the impact of Sterling's inaction in a new piece for Sports Illustrated.
Saturday, August 23, 2014
What we call our teams
Various broadcasters and sports media outlets supposedly are not going to use the nickname of the Washington NFL team this season, presumably referring to them as "Washington" or "the Washington team."
In the mid-'90s, Baltimore got a CFL team (when the NFL inexplicably passed a great football city over for an expansion team), which tried to call itself the "Baltimore CFL Colts." The Indianapolis Colts sued for trademark infringement and won a preliminary injunction (the case had a significant personal jurisdiction point). While the litigation was pending during the 1994 season, the team simply called itself the "Baltimore Football Club." During pre-game introductions, however, the announcer would say something like "And now, your Baltimore . . ." and the crowd would shout "Colts" over the rest of the announcement.
If the trend of not using the nickname becomes widespread enough, I wonder if some of the more hardcore Washington fans will take it upon themselves to shout the nickname themselves.
Wednesday, August 20, 2014
Peter Carfagna to teach MOOC course on Representing the Professional Athlete
Our good friend, Harvard Law School sports law professor Peter Carfagna, has let us know that Case Western Reserve University School of Law, via the Coursera platform, will be offering Peter's "Representing the Professional Athlete Course" as a Massive Open Online Course. The course will be going live on Sept. 16 and you can see the course's details on Coursera. This is an outstanding opportunity to learn sports law from one of the most successful sports lawyers in U.S. history and an extremely talented teacher as well.
Peter's course is a 6 Module MOOC course and will cover the 4 stages of a professional athlete's career as explained in his outstanding West Academic book titled Representing the Professional Athlete (2nd Ed.)
For a great Q/A with Peter, see this Harvard Law Today story.
Daniel Wallach on settlement reached in Steve Moore, Todd Bertuzzi case
It has taken over a decade, but there is a settlement over litigation stemming from the vicious hit by Todd Bertuzi against Steve Moore. The hit ended Moore's career and led to a $68 million lawsuit.
Sports attorney Daniel Wallach of Becker & Poliakoff breaks down the settlement on SportsNet Toronto and what it means for hockey. The interview with Brady and Walker begins at around the 15:00 mark, and is an outstanding listen.
Tuesday, August 19, 2014
Turning Pro in Hockey
basketball and football, the draft entry rules and the NCAA eligibility rules are simple--once someone submits their name to the draft, and they don't pull out prior to the draft, they become ineligible to play in college regardless of whether they are selected or not. Baseball allows a player to be drafted, and so long as they don't sign with the team, they may attend college but the drafting team loses the player's rights.
However, for the sport of hockey, the way in which the NHL draft eligibility rules and the NCAA rules intersect are quite unique. For a variety of reasons, the NHL draft rules permit players to be drafted once they turn 19 (or 18 under certain circumstances). However, the NCAA has determined that so long as the player doesn't sign a professional contract, or sign with an agent, he may retain his collegiate eligibility. The player even may spend time at the team's "development camp" during the summer, competing against pro players. In fact, during the summer of 2014 over 300 players with college eligibility competed in prospect "Development Camps."
These rules produce nuances distinct to hockey:
Why am I writing this now, during the dog days of August? Because two events at Boston College highlighted this "twilight zone" recently. First, Kevin Hayes navigated this process masterfully. A first round draft pick of the Chicago Blackhawks during the 2010 entry draft, Kevin followed his older brother Jimmy and decided to embark on a college career.
While his brother Jimmy, a second round pick by the Toronto Maple Leafs, left college after his junior year (and a national championship), despite interest from the Blackhawks, Kevin passed on signing an NHL deal at the end of each college season. After playing four years at Boston College (and winning a championship himself), he became a free agent on August 15th--free to shop himself to the highest bidder.
Why was this masterful? 1) Kevin earned a college degree; 2) he won two national championships and improved himself by competing at the highest level (finishing third in the Hobey Baker Award this past season); and 3) has the luxury his contemporaries do not--he's an NHL free agent, in demand, at the age of 22.
This other side of the question is the saga of Sonny Milano. Milano, who committed to Boston College, was the 16th selection in the 2014 NHL draft by the Columbus Blue Jackets. The plan was to play at Boston College for a few years, honing his skills while the Blue Jackets still owned his rights. He dominated in international competition all summer, posted a video that went viral on YouTube highlighting his stick skills, and announced last week that he would forgo college and head straight to the Ontario Hockey League to begin his pro career.
Monday, August 18, 2014
To the man who taught me the infield fly rule
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. I just ended shloshim, the 30-day period of mourning in the Jewish faith, so it seemed a good time to post this.
My dad was a huge baseball fan. He somehow became a Yankees fan in 1930s/1940s Brooklyn, an interesting choice that probably subjected him to some abuse (although his consolation was that the Yankees always won and the Dodgers always lost). He passed that love of the game down to me (even if I traded the Yankees for the Cubs as an adult--don't ask). I still cry at the end of Field of Dreams ("Dad, you wanna have a catch?"), because, who doesn't? More importantly, though he certainly could not have imagined it at the time, he set me down the path of my two-plus-year (and counting) scholarly obsession with the Infield Fly Rule.
Crazy as it sounds, one of my vivid snapshot memories of childhood is that moment when I first learned about this crazy rule. I was about eight years old and my dad and I were watching a Yankee game on TV. One of the announcers said "Infield Fly Rule is in effect" (standard baseball broadcaster lingo on IFR plays, for reasons I have not yet been able to uncover); I asked what that meant and he explained. And he obviously did it in very clear terms, because I immediately understood both the rule and its logic and his explanation stuck with me going forward. If, as I have argued, to understand the infield fly rule is to understand baseball, then my dad understood baseball. And he made sure I did, as well.
One of the last times I visited him in New Jersey in the spring, I brought along two of my infield fly articles. He flipped through them while we were sitting together talking and he read them after I left. And I am quite certain it is the only thing I have written as a prawf that he read or understood. So that alone made this whole project worthwhile.
Friday, August 15, 2014
O'Bannon, College Reform & Title IX
As the dust begins to settle on Judge Claudia Wilken's ruling in the O'Bannon case, many are beginning the process of interpreting the ruling from a variety of perspectives. One of the chief questions relative to paying college athletes, and the brave new world in which the NCAA has been brought, is the role that Title IX will have on its implementation.
One of Sports Law Blog's favorite antitrust economists, Andy Schwarz a partner with OSKR LLC in California, recently penned an insightful article on Deadspin titled "Don't Let Anyone Tell You The O'Bannon Ruling Conflicts with Title IX." Schwarz argues that the payments being proposed by Wilken should be construed as "part-and-parcel of the financial aid offer made to male athletes." As such, they'd fall under the umbrella of the "substantial proportionality" test as required by Title IX. The article is masterful and should be read by all to fully understand this issue.
Our own Michael McCann analyzed the O'Bannon decision for Sports Illustrated and tackled the issue of Title IX, noting that Title IX plaintiff attorneys may have a different perspective than the one Schwarz argues. Another wonderful piece was recently posted on espnW by columnist Jane McManus titled "NCAA Reforms: Good for Female Athletes?" McManus, who also quotes Schwarz, asks the poignant question "so what is the future of women's sports under this new structure?" Finally, Kristi Dosh wrote a piece which poses more questions than answers, in a column titled "Are O'Bannon Ruling and Title IX at Odds?"
What's clear is that there will be many a law review article penned debating this topic. Title IX recently celebrated its 40th Anniversary and its impact continues to play a major role in higher education.
Wednesday, August 13, 2014
Weighing in on the potential for criminal charges against Tony Stewart. Thanks to Corey Yung of Kansas University School of Law, whom I first spotted through the link to the Concurring Opinion blog, for helping out with this story.
Based on the reaction to my story on Twitter, this case is as polarizing as they come. Stewart has a reputation as a hothead, leading many fans to conclude that he was -- at the very least -- trying to teach Ward a lesson by swerving/accelerating/spinning his wheels in his general direction. Many others feel that because Ward was out in the middle of traffic, Stewart should be in the clear.
It's not known yet what Stewart told investigators. If he didn't see Ward, it's hard to argue for any criminal charges (here's the view from inside a sprint car). The Ontario County sheriff says the investigation will continue, perhaps for weeks. Interested in anyone's thoughts on whether this is a good or bad sign for Stewart.
Tuesday, August 12, 2014
The never-ending Donald Sterling saga ends . . or not
Steve Ballmer is the new owner of the Los Angeles Clippers, according to the NBA. Donald Sterling has a different interpretation, as I write in a new piece for Sports Illustrated.
Monday, August 11, 2014
More on the Legal Fallout of Tony Stewart crash and O'Bannon v. NCAA
I was a guest on ESPN's Outside the Lines tonight to talk about the legal fallout of the Tony Stewart crash. Here's a video:
In addition, I have a new Sports Illustrated column where I predict that Ed O'Bannon will appeal his victory in O'Bannon v. NCAA.
Sunday, August 10, 2014
Potential Criminal, Civil and Contract Law Fallout for Tony Stewart
I have a new column on SI.com on the assorted legal ramifications of the incident last night involving Tony Stewart and the death of Kevin Ward, Jr. This includes criminal charges, a wrongful death lawsuit and termination of endorsement contracts under morals clauses. Hope you can check it out.
Yung on Tony Stewart and criminal culpability
At CoOp, Corey Yung (Kansas) has a good analysis Tony Stewart's possible criminal culpability in the on-track death of Kevin Ward, Jr.
Saturday, August 09, 2014
Loss of Value Insurance: 3 Questions
Following the news that Florida State paid for the premium for Jameis Winston's loss of value insurance policy, and the wonderful law review article titled "Insurance Coverage for Elite Student-Athletes" by Jill Weiber Lens and Josh Lens (Baylor University) a few questions to ponder:
O'Bannon & NCAA Reform
Yesterday, Michael McCann and I, along with Robert Raiola, Alan Milstein and Daniel Wallach, led a roundtable discussion for the Boston Bar Association on the Donald Sterling controversy. The panel was well attended and, by all accounts, quite successful. Afterwards, most of us then headed out to a late lunch in Boston to catch up on life.
As often happens with the conversations of sports lawyers, our attention turned to the O'Bannon case. Always prescient, McCann stated that he expected Judge Wilken to issue her ruling at approximately 6:45 pm est just before the weekend. He hoped it wouldn't happen, lamenting the likely long night of writing and analysis he'd be required to provide Sports Illustrated (alas, the rigors of being THE sports law expert for that media outlet.)
We now know McCann was correct--in a ruling siding, primarily for O'Bannon, Judge Wilken ruled that the NCAA's could no longer use "amateurism" as the single defense to all restrictions placed on college athletes. You can read McCann's insight in a piece titled "What Ed O'Bannon's Victory over the NCAA Means Going Forward" here.
Another article worth your time is from noted columnist Joe Nocera of the New York Times who posted this piece titled "This is Reform? The NCAA's Feeble Reform Impulse." And, to be clear, any writing that discusses Andy Schwarz's concept of Team Reform v Team Market analysis is a good read. For Schwarz's full article titled "How Not to Reform the NCAA" go here.
Friday, August 08, 2014
Article of interest: Lens on insurance for college athletes
Jill Wieber Lens (Baylor Law) and Josh Lens (who works in athletics compliance at Baylor) have posted Insurance Cover for Elite Student-Athletes to SSRN. Here is the abstract:
College athletics is commonly referred to as “big business” for universities. But it’s also big business for elite student-athletes, meaning those who are talented enough to later become professional athletes. What happens if they get injured while still in college? An injury could cost an elite student-athlete millions of dollars, in the form of lost expected future income from playing professional sports. More and more elite student-athletes are looking to insurance to help with this risk.
This Article explores the types of insurance available for elite-student athletes, mainly total disability and loss-of-value insurance. The Article is the first to focus on student-athletes’ biggest hurdle in obtaining the insurance—the cost. It argues that change is needed because current limitations on elite student-athletes provide easier access to total disability insurance than to loss-of-value insurance. The Article also cautions that even though insurance is a solution to this unavoidable problem for elite student-athletes, it is not foolproof. Insurance is only reimburses part of the lost future income. That partial benefit may also possibly be inadequate because it is based on draft projections, which will not always be accurate.
Wednesday, August 06, 2014
Disability Insurance: College Edition
In 2011, on this blog, I posed the question whether a lack of disability insurance was driving college football players to the NFL early--link here. For decades now, the NCAA has permitted students to borrow off future earnings to cover the premiums on policies protecting themselves from permanent disability. It's known as the NCAA's Exceptional Student Disability Insurance (ESDI) program.
Where the NCAA has traditionally restricted the ability of college athletes to procure true protection is via "loss of value" insurance policies. For example, true "loss of value" coverage is offered by insurance carriers whereby a player projected to be a top ten pick suffers a debilitating, but not permanent injury. The player is able to continue playing at a slightly lower level than before the injury but still gets drafted in the fifth round. The player would collect on the sizable gap in compensation between their anticipated early first round and actual fifth round salaries.
Loss of value coverage was deemed permissible by the NCAA in 2010. Unfortunately, the NCAA deemed students who borrowed off future earnings to cover these premiums to be receiving impermissible extra benefits under their rules--thereby forcing students (and their families) to pay these expensive premiums for the policies out-of-pocket.
Good news, while the NCAA didn't come to their senses and change the rules, individual colleges found a loophole. Florida State quarterback Jameis Winston, the 2014 Heisman Trophy winner is predicted to be a top-10 pick in the NFL's 2015 draft. Using money from the school's Student Assistance Fund, Florida State recently paid the approximate $60,000 premium on Winston's loss of value policy to provide $10 million in disability and loss of value protection.
According to the NCAA, the Student Assistance Fund "shall be used to assist student-athletes in meeting financial needs that arise in conjunction with participation in intercollegiate athletics, enrollment in an academic curriculum or that recognize academic achievement." Responsibility for the oversight and administration of these funds occur at the conference level.
Thus, Florida State, with the ACC's blessing, recognizes the responsibility it has to protect the future earnings of its students. Well done Stan Wilcox, athletic director at Florida State!
For media coverage of this policy you can check out ESPN and SB Nation.
Tuesday, August 05, 2014
An Empirical Analysis of the Infield Fly Rule
The published version is in the Journal of Legal Metrics. The paper discusses the results of a four-year study of every infield fly call (and should-have-been call) from 2010-2013. I am going to repeat the study for the 2014 and 2015 seasons and I am hoping to turn the entire infield fly project into a book. Comments and suggestions are always welcome.
Friday, August 01, 2014
Announcement: New online sports law course
Nationally recognized sports lawyer Glenn Wong will launch the new Mark H. McCormack Online Graduate Sport Management Certificate program this coming Fall semester. Professor Wong’s 3-credit “Sport Law” course will be the first in a 15-credit certificate program that enables working professionals to access the highly regarded McCormack Sport Management curriculum and faculty in a convenient, 100% online format.
In addition to authoring one of the leading Sport Law textbooks, Wong has previously served as an MLB Salary Arbitrator and as Interim Athletic Director at UMass. Students can take courses without being in the certificate program if they would like them for professional development. Students interested in the certificate can take up to 2 courses towards the certificate before applying to the full program.
To enroll in Prof. Wong's Sports and the Law course click here.
For more information on the McCormack Sports Management Graduate Certificate program at UMass go here.[Editor's Note: Prof. Wong is a longtime mentor and friend. Anyone interested in the field of "sports law" would benefit tremendously from his insight and experience. Additionally, any potential access to his colleagues including, but not limited to, Department Head & Prof. Lisa P. Masteralexis, should also be a huge draw for potential students.]
Tuesday, July 29, 2014
The Irony of the MLBPA's Recent Grievance Against the Houston Astros
Major League Baseball Players Association (MLBPA) has filed a grievance against the Houston Astros over the team's failure to sign several recent draft picks, including the first overall selection Brady Aiken (pictured). Nick Faleris has provided a great recap of the breakdown in negotiations between Aiken and the Astros over at Baseball Prospectus, but in short Houston had allegedly reached a $6.5 million deal with Aiken, only to pull it off the table due to concerns with Aiken's elbow that were identified during his pre-contract-signing physical exam (Aiken disputes the diagnosis). Instead, the team opted to offer Aiken the minimum amount allowed under the collective bargaining agreement, or about $3.5 million, to sign. Even after Houston eventually raised its offer to $5 million, Aiken refused to sign for less than the original agreed upon amount, and as a result the signing deadline for draftees passed last week without the two sides reaching an agreement.
Due to the intricacies involved in the new MLB draft system, however, by failing to sign Aiken the Astros were also unable to honor the agreement they had reached in principle with fifth round selection Jacob Nix. Basically, MLB's CBA caps the amount that teams can spend on draft picks, and conditions some of that money on the team signing its top picks. It just so happens, however, that Nix's agent, Casey Close, also represented Aiken, raising questions about whether the Astros were attempting to manipulate the situation to force one of Close's clients (Aiken) to sign at a reduced rate so the agent's other client (Nix) could sign as well.
The fact that the MLBPA has opted to pursue a grievance over the Astros' failure to sign Aiken and Nix is somewhat ironic given that the union has never shown much interest in representing minor league baseball players. Indeed, the MLBPA has historically focused its energy exclusively on serving the interests of major league players, sometimes at the expense of minor leaguers (including, for example, the union's agreement discussed above to cap draft pick signing bonuses in the most recent CBA). The resulting lack of union representation for minor leaguers is a significant factor motivating the recent Senne class action lawsuit filed against MLB, which alleges that MLB teams have failed to pay their minor league players in accordance with the Fair Labor Standard Act's minimum wage and maximum hour provisions (for more on the Senne lawsuit, check out Sports Law Blog's prior coverage of the case available here and here).
All of this makes the union's decision to pursue a grievance on behalf of Aiken and Nix somewhat surprising. Under the terms of MLB's most recent CBA, teams are prohibited from signing recent draftees to major league contracts. Consequently, even if they had signed with the Astros, neither Aiken nor Nix would have immediately joined the MLBPA's membership. Instead, they would have had to wait until they were promoted to the major leagues (or assigned to a major league team's 40-man roster) in order to join the union. Admittedly, the draft rules at issue in the Aiken/Nix grievance were agreed to as part of MLB's most recent CBA, giving the union some interest in the matter. But the fact that the two draftees would not have immediately joined the union even if they had signed does raise questions about why the MLBPA has elected to become involved in the matter.
Monday, July 28, 2014
Donald Sterling loses
The NBA is poised to approve the sale of the Clippers to Steve Ballmer following a probate court effectively ruling for Shelly Sterling. My take for Sports Illustrated.
Wednesday, July 23, 2014
New Chapter in Donald Sterling Saga: he sues NBA, Adam Silver and Shelly Sterling
There have been several significant developments in the Donald Sterling legal saga over the last 48 hours, including a new lawsuit and threat from Doc Rivers that he'll quit as Clippers coach if Donald Sterling sicks around. Here is my legal analysis of those issues for Sports Illustrated.
California knows how to tax pro athletes
Robert Raiola and I, in a new piece for SI.com, look at how California tax law plays a key role in raising revenue from athletes for the state.
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 [updated Aug. 13 to commemorate the end of the Donald Sterling legal saga -- there are now 50 columns]: