Sports Law Blog
All things legal relating
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Thursday, June 29, 2006
Larry Brown is Grieving

Larry Brown has decided to file a grievance concerning whether he is owed any money by the Knicks in connection with his termination. It was not a surprise when the Knicks concocted an excuse to avoid paying Brown. As I pointed out here, MSG is (owned by) a publicly traded company and may have feared a lawsuit by shareholders if it paid Brown the full value of his contract.

Brown claims he is owed $40 million, what he would have been paid under the contract. The Knicks claim he violated a term of the contract and thus is owed nothing. According to the Knicks, Brown gave “roadside interviews” that contradicted a contract provision. Knicks chairman James Dolan says Brown was fired “for cause.” According to a good summary of the events by the San Jose Mercury News,
Dolan is trying to get out of paying Brown the $40 million the Hall of Fame coach is owed, saying that Brown conducted roadside interviews without a public-relations official present. The Knicks also claim that Brown failed to return phone calls to team president Isiah Thomas and that he returned from the NBA predraft camp in Orlando one day early without authorization.
Good luck to the Knicks, who will need it. One league official characterized Brown's supposed breaches as “minor”. Trivial is a better word. Let’s assume that the contract doesn’t say, “if Larry Brown gives a roadside interview the Knicks have no further obligation to pay” (if the contract does say that, Brown should sue whoever negotiated it for him). According to the Restatement of Agency, §409,
A principal is privileged to discharge before the time fixed by the contract of employment an agent who has committed such a violation of duty that his conduct constitutes a material breach of contract or who, without committing a violation of duty, fails to perform . . . a material part of the promised service . . . .
The Restatement of Contracts, §275, defines materiality:
In determining the materiality of a failure fully to perform a promise the following circumstances are influential:
(a) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated;
(b) The extent to which the injured party may be adequately compensated in damages for lack of complete performance;
(c) The extent to which the party failing to perform has already partly performed or made preparations for performance;
(d) The greater or less hardship on the party failing to perform in terminating the contract;
(e) The wilful, negligent or innocent behavior of the party failing to perform;
(f) The greater or less uncertainty that the party failing to perform will perform the remainder of the contract.
Applying this law to Brown’s contract, the Knicks' claimed “cause” hardly seems sufficient to relieve the team of an obligation to pay the coach his due. The Knicks may also be done in by timing, since it’s widely believed that the decision to fire Brown (and replace him with Thomas) was made long before Brown’s supposed breaches.

Like most of these disputes, however, a settlement is likely. The real question is, how much will Brown get? At, future traders expect Brown to end up with something, most likely between $10 and $20 million. “Betting is that he will get something, although considerably less, perhaps somewhere between $10 million to $19.9 million (2-1), or $30 million to $34.9 million (3-1), or $20 million to $29.9 million (5-2). At either end, the betting is 7-2 that Brown will collect either under $10 million or closer to what he might be owed, $35 million to $40 million.” The $20-$29.9 million bet would be my choice, although I wouldn’t put money on it.

Another quirky feature of Brown’s contract is that it specified that in any financial dispute with the Knicks, NBA Commissioner David Stern would arbitrate. Is anyone familiar with any other sports employment contract in which the league commissioner was named as the arbitrator of an individual contract dispute? This strikes me as odd. I’d also be concerned about a potential conflict of interest (since Stern works for the owners), although Brown has agreed to have the Commissioner arbitrate the dispute.

Brown will be represented at the arbitration by Washington DC’s Williams and Connolly, which has built a very impressive sports law practice over the last decade.

UPDATE (July 3, 2006): Yale Law School Professors Ian Ayres and John Donahue have a nice Essay in Sunday's New York Times on the parralels and distinctions between the Brown case and that of former Disney executive Michael Ovitz; I discussed that comparison back on May 16. Here's a juicy bit from the Ayres/Donahue piece:
The Cablevision Systems Corporation, which owns the Knicks, is certainly within its rights to terminate a coach or any other employee for cause if he or she has, in fact, materially violated contractual obligations. But the Knicks have been pursuing bad trades for years before Mr. Brown arrived. It seems a bit harsh to hold some of the latest failures as evidence of misconduct by Mr. Brown rather than simple misjudgments.

Mere incompetence generally does not amount to a material breach of an employment contract . . . .

Wednesday, June 28, 2006
Indiana Court Declines to Extend Co-Participant Sports Tort Standard to Jet-Skiing

An Indiana Appellate court declined Monday to extend the relaxed tort law standard for co-participants in organized sports, under which co-participants cannot be liable for mere negligence but only for reckless misconduct or intentional wrongdoing, to the activity of jet-skiing. In Davis v. Lecuyer, 2006 WL 1726636, the court distinguished jet-skiing from triathlon competitions, as to which had earlier applied the relaxed recklessness standard in Mark v. Moser. The Davis court explained:
Applying a recklessness standard to any use of a jet ski in order to encourage vigorous participation is neither a legitimate nor necessary policy goal. Moreover, the nature of jet skiing does not present the same potential for a flood of litigation as do certain contact sports. Jet skiing simply does not raise the concern expressed in Mark that if "simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted."
This holding is contrary to that reached by several California courts, which have held that water skiing, tubing, and jet skiing constituted sports as to which "primary assumption of risk" barred actions for mere negligence. See, e.g., Ford v. Gouin, 11 Cal.Rptr.2d 30 (Cal. 1992). In that case (which served as the basis for one of my Sports Law exam hypos this spring), California's Supreme Court reasoned that
[i]mposition of legal liability on a ski boat driver for ordinary negligence . . . likely would have the same kind of undesirable chilling effect on the driver's conduct that the courts in other cases feared would inhibit ordinary conduct in various sports.
Should courts be worried about chilling vigorous jet skiing?

Big Logos at the Big W

Wimbledon began Monday in typical fashion: with rain delays and warnings that players must adhere to strict dress codes. Strict dress codes will probably disappoint you Maria Sharapova fans. For his part, World No. 1 Roger Federer has been taking the court in a Nike-designed cream blazer.

Underneath it all, Nike and Adidas are waging a legal battle over permissible logos. Tennis' governing bodies restrict the size of company logos on players' clothing. (See p. 209 0f the ATP Code of Conduct.) The idea is to prevent the NASCAR-ization of professional tennis players.

Nike and others have argued that Adidas clothing violates the rules because its three-stripes logo appears along an entire sleeve or side of a shirt. They claim that in turn, they should be permitted to place Swooshes on an entire back or sleeve of a shirt (a strategy it briefly employed through its endorsee Rafael Nadal a few years back.)

This battle began in 2004 when Nike, Reebok and Puma complained to the IOC that the athletes' warm-ups, by containing the three-stripes in the design, unfairly contained a manufacturer's logo beyond the permissible size under IOC rules. The IOC informed Adidas that its three stripes would be limited in the next Winter Games. The battle then shifted to tennis. As a result of discussions between the manufacturers and tennis' governing bodies, the Grand Slam Council (which controls the Australian Open, Roland Garros, Wimbledon and the US Open) informed Adidas that its three stripes would constitute a manufacturer logo subject to limited size. The ATP Tour (men's tennis) and WTA Tour (women's tennis) adopted similar positions. Adidas countered that the interpretation violated EC law because itdiscriminatedd against them and had been unfairly applied. The case is set to be tried in October, 2006.

Adidas recently obtained its own injunction relieving it from the restrictions during Wimbledon and the US Open. The litigation will be interesting to follow. Insiders comment that Nike has long envied Adidas' logo for its corporate reference and its design effect. Readers of Swoosh: The Unauthorized Story of Nike and the Men Who Played There and Just Do It: The Nike Spirit in the Corporate World (both recommended!) will recall that the early Nike execs chose the Swoosh for its connotation of speed, but envied the fact that Adidas' logo also was part of the design of the shoe -- the three stripes provided support and identified the company.

In time, it has clearly become a logo, despite the fact that it originated in design. It will be interesting to see what arguments Adidas makes in support of the design necessity of three stripes as they apply to shorts and shirts. One they seem to already be making is that other manufacturers, including Nike have used design elements repeatedly in their clothing that provides secondary meaning for their company.

Although tennis has more important issues to address as a sport, time, money and effort will be spent in the next year as this issue is litigated. The outcome should be interesting.

Players Sue NFLPA Over Failed Hedge Fund Investment

A group of NFL players has sued the players’ union, claiming the union improperly certified a hedge fund manager under its Financial Advisor Program. The LA Times has the story here. Kirk Wright, who has since been apprehended and charged by the SEC, was looting the fund.

The players’ allege that the union should be blamed because it was aware that Mr. Wright’s partner had financial / tax trouble (and had liens against him) at the time the union certified Wright as a financial advisor. I can’t find the complaint itself, but what this argument seems to boil down to is a sort of “negligent certification” claim. The NFL views the lawsuit as unfounded and so do I. Unless there is some way to get the NFLPA on a securities law suitability claim or that the NFLPA is an unregistered investment advisor, the players will face an uphill battle.

The leading negligence case by an athlete against his own union is Peterson v. NFLPA, in which the court found for the NFLPA in an athlete’s claim for misdirecting him to an “injury grievance” procedure when he ought to have filed a “non-injury grievance.” The court explained:
A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith." . . . The Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members' best interests. . . . A union's representation of its members "need not be error free." . . . We have concluded repeatedly that mere negligent conduct on the part of a union does not constitute a breach of the union's duty of fair representation. . . . [A] union's unintentional mistake is "arbitrary" if it reflects a "reckless disregard" for the rights of the individual employee, but not if it represents only " simple negligence violating the tort standard of due care."
There’s certainly no claim that the NFLPA intentionally recommended a bad investment. Is recommending an investment manager knowing his partner has financial troubles reckless? That is, does it constitute a knowing and conscious disregard of a substantial risk of serious harm? That seems unlikely. The union’s role in certifying investment advisers is limited. The union is not recommending particular investments, simply certifying that an adviser is what he says he is. According to the Regulations of the NFLPA Financial Advisor program,
The first step is that financial advisors have appropriate qualifications to be eligible to participate. Background checks and due diligence will be performed to ensure that financial advisers meet our eligibility standards. Secondly, by joining the Program, all financial advisors agree to abide by rules which are designed to both protect and inform our players.
While I might tone down some of this language were I the NFLPA’s counsel, it seems clear that the union is not certifying the quality of investments or assuming the risk of theft of client funds by investment advisors. Under the deferential Peterson standard, while the union’s certification of Wright might be “error,” it is hardly malicious or arbitrary.

The sad thing about this case is what it might do to this program. The NFLPA was the first union to recognize that many players and retired players were making incredibly poor investment decisions and dooming themselves to a life of post-retirement financial insecurity. If this case has any traction whatsoever, it might lead the NFLPA to walk away from the program, and could certainly deter other player unions from following the NFLPA’s lead.

Tuesday, June 27, 2006
Peter Gammons Suffers Brain Aneurysm

Here's hoping to a speedy recovery for ESPN's Peter Gammons, arguably baseball's premier journalist, as he is undergoing emergency surgery in a Boston-area hospital for a brain aneurysm. Gammons has written many stories that touch on the law, although his introduction speech into the Baseball Hall of Fame in 2004 may be his greatest work. Here's an excerpt:
I walked the streets of Manoguyabo, Dominican Republic, with Pedro Martinez and viewed the churches, school, athletic complex, day-care center and houses that he built for poor people in his hometown. I was not far from Fidel Castro when he stood for the American National Anthem at attention, his hat across his heart because baseball came to Havana in 1989. I remember George Bush strode out toward the mound at Yankee Stadium before the third game of the 2001 World Series, weeks removed from the World Trade Center attacks, and turned and said to Karl Ravech and Harold Reynolds, 'We are among the 55,000 people who just experienced one of the great chills of anyone's lifetime.' When Bud Selig asked us to embrace the World Cup, it's not T-shirts in Taiwan. It's about celebrating that baseball, more than any sport, is who we are. It is reflected in our immigration patterns, our history because we're all immigrants. We should want the world to see us not for our politics, not for our business, but for baseball as our metamorphic soul, inclusive, not exclusive, diverse, not divisive, fraternal, not fractionalized.
Gammons may very well be the best sports journalist in my lifetime. Whether you agree or disagree with him, he's always interesting, and that alone separates him from everyone else. I'm looking forward to reading more of his work. Get well.

The Role of Race and Culture in how Fans Regard the NBA Draft Age Limit and Dress Code

Rick Maese, a columnist for the Baltimore Sun, has an extensive piece today on the NBA Draft (which will be held tomorrow) and how the new elevated age floor may reflect dimminishing player autonomy and underlying issues of race and culture ("NBA Draft Doesn't Get Any Better with Age," Baltimore Sun, June 27, 2006). Maese interviews me for his column, and cites my law article, The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor & Emloyment Law __ (forthcoming, 2006), which can be downloaded at this link, and also my mini-study last year on NBA player arrests, which found no correlation between an NBA player spending more time in college and dimminished arrest propensity.

Here is an excerpt from Maese's column:

The dress code was silly, but this age-restriction rule is more absurd.

"Just compare it to other sports," says Michael McCann, a law professor at Mississippi College School of Law. "It begs the question, why do we have this in certain sports but not all of them? Why not for golf, tennis, baseball, hockey, any of these sports?"

League officials believe the new rule will improve the quality of play, but excluding 18-year-olds is just another example of the NBA exerting control over its players. But there's no justifiable reason for an age restriction. I happen to like the idea of an 18-year-old choosing to play college ball, but I recognize that it's not always in the best interest of the player. And I also realize that it shouldn't be solely Stern's decision to make.

McCann is vested in the topic. He was a part of Maurice Clarett's legal team when the football player unsuccessfully tried to challenge the NFL's age-restriction rule two years ago.

"Generally speaking, people ... go to college, we mature and we look back at it all as a good life experience," he says. "There's this empirical view that people who go to college do better in life. But we can't mistake the experiences of athletes with the experience that the rest of us have. It's a radically different world. There's a disconnect that we must recognize.

"You also wonder if there's a race issue," he continued. "This all goes to an underlying stereotype of what we think about urban African-American men. There may be a preconceived stereotype that they need to be in school. The facts, though, at least for basketball players, actually suggest the opposite. School isn't necessarily the best answer for everybody."

Before we get to that, you must first accept that this is, in fact, a black-white issue, as uncomfortable as that may seem. Of the 46 prep players who've been drafted since 1995, only one was white. So it's not hard to make a case that the age-restriction rule specifically targets 18-year-old black men.

The NBA sold the public on the rule based on the idea that these young athletes would be better served by at least one year of college seasoning - a preposterous notion from the beginning.

McCann studied American players over the past 15 years. He found that 41 percent of NBA players attended college for four years; the percentage of NBA players who attended college for four years and were later also arrested for some sort of misconduct was much higher - 57 percent.

Among those who skipped college, the number of arrests was disproportionately low - 8 percent of the players in the study did not attend college, but only 5 percent of those arrested skipped school.

So who exactly is more mature and equipped to handle the real world?

And who exactly is served by these age restrictions? Not the pro teams. Not the college teams. And certainly not the players. The only guess I can muster is the fan, the guy who can afford tickets and expensive merchandise, yet has trouble identifying with a culture, an athlete and a lifestyle to which he can't relate.

During the interview, I made one other point and it concerned David Stern. I noted that Stern is doing what any good commissioner is supposed to be doing: he's trying to maximize revenue for the league by appealing to fans' wants. So when we talk about the NBA pushing for a dress code and age limits, we're most likely talking about the league responding to what it perceives as in its best financial interests--a form of business behavior which, in and of itself, presents nothing nefarious.

But that behavior only begs a question: Why do fans want a dress code and why do they want age limits? What do those fan desires say about them, about us? And at what point do stop deferring to "business reasons" and start asking the harder, underlying questions?

Update: Dick Vitale--previously the most ardent critic of high schoolers jumping straight to the NBA--has done a 180 and now believes that high schoolers should be able to enter the NBA. Wow, I'm almost speechless, although in fairness, he did have some reservations about the blanket, absolute age prohibition back in April 2005.

DC Power Lawyer Golf Handicaps

Wonkette links yesterday to Golf Digest’s October 2005 ranking (by handicap) of the top 200 politico-golfers in Washington, DC, a number of whom happen to be lawyers. Among the more notable (I’ve left out elected officials, many of whom have law degrees but are unlikely to ever practice again):
7. Fred Eames, Partner, Hunton & Williams (2.0)
17. Spencer Prior, U.S. Attorney’s Office (4.0)
51. Tim Jenkins, Attorney, O’Connor & Hannan (9.2)
94. Sandra Day O’Connor, Ret. Supreme Court Justice (12.8)
98. Larry Gage, Partner, Powell Goldstein (13.1)
103. Robert Mueller, FBI Director (13.9)
104. John Roberts, Supreme Court Justice (14.5)
122. Mike Hammer, Partner, Wilkie Farr (15.4)
126. Alberto Gonzales, Attorney General (16)
172. John Quinn, Partner, Piper Rudnick (22.3)
188. John Paul Stevens, Supreme Court Justice (25.2)
Although I think there’s little doubt that being decent can be good for one’s legal career, I wonder whether a client should really be excited to hire a good golfer as a lawyer. Maybe this is just the jealously of a duffer talking (my uncle once joked that he would file an environmental impact assessment the next time we went golfing together), but isn’t a low handicap a sign that one spends a lot of time on the links? And, therefore, not as much time doing legal work? I suppose that one might extrapolate from a good golf game to grace under pressure, which is certainly a good quality for a litigator or a dealmaker.

Former NCAA Golf Champion Fred Ridley told the WSJ’s Law Blog, “The law profession is not a really great profession for being a great athlete. If you’re going to be a good lawyer, you’ve got to dedicate a lot of time to the profession.” If you want to be a good golfer, “you need to be in the insurance business or something.”

School Recess is Becoming a Thing of the Past

I read an article in USA Today this morning that has me all fired up: 'Not it!' More schools ban games at recess. Elementary schools across the country are banning games during recess, such as tag, soccer and touch football, because educators say these games are dangerous. The principal at one such school said tag was banned because it "progresses easily into slapping and hitting and pushing instead of just touching." My son just completed third grade, and his school has one recess session for only 15 minutes and permits tag, soccer and kickball on the playground. However, his teacher -- who by the way is an excellent teacher and one of his all-time favorites -- banned his class from playing touch football when one child was hit in the head with the football (and the child did not suffer any injury).

Banning games at recess is a disturbing trend. I can remember having much more recess time when I was in school, and we played both tackle and touch football. In addition to the benefits of physical development and exercise, we learned many valuable things that simply can't be taught in the classroom -- including how to compete; how to compromise and resolve disputes on your own; how to form your own rules and play within them; and how to deal with adversity.

According to the article, educators worry about kids running into one another and getting hurt. Granted, this is a valid concern when educators are supervising the children while away from home and are responsible for ensuring their safety. But using a typical risk-utility analysis, the risk and extent of possible injury on the playground is simply outweighed by the high utility, benefit and value associated with children playing games at recess. While banning tackle football might be justifiable, banning touch football, tag and soccer is simply not.

So I write this with the purpose of making parents aware of this trend, and you can make your own determination as to its level of importance. If nobody complains, schools will most likely continue to ban more activity at recess, and will most likely ultimately ban recess altogether. While most parents will be requesting that their child have a laptop, I'll be requesting that recess time be extended and the games permitted.

Monday, June 26, 2006
WSOP Begins Today

The World Series of Poker begins today. Most ESPN watchers have seen only the “Main Event”, which does not begin until July 28. Someone in Bristol must read the Sports Law Blog, because three weeks after I complained about the delay between the event and its appearance on ESPN, the network announced that it would offer the August 10 final table of the main event live on pay-per-view. This is an interesting development, since the pay-per-view broadcast will be unedited. Some observers have expressed concern that a live unedited broadcast – particularly if players’ “hole cards” are shown on TV – might allow players to obtain information about the recent moves made by their opponents (by having a friend at home call in that information).

The success of broadcast poker – on ESPN and numerous other channels – has inspired the network to consider other “pseudo” sports. Darts, billiards, and even spelling bees, have appeared or will appear on the network, although such events likely don’t and won’t attract much of a following or generate as much buzz as poker.

ESPN is not the only “sports” medium in which non-athletic events have gained traction. A few years ago, supporters and fans of another high-strategy card game, Bridge, began to seek recognition of that game as an Olympic Sport. The supporters believed they’d have better luck getting the card game recognized as a Winter event, given the already-crowded summer schedule. In 1998, the Bridge-as-Olympic-Mind-Sport movement gained an influential supporter, the President of the International Olympic Commission, as the New York Times reported here. However, efforts to get Bridge at the Turin Olympics stalled after several players failed drug tests.

During the Athens Olympics, a tongue-in-cheek web site surfaced, arguing that poker should qualify as an Olympic event. It turned out that the site was part of a cleverly disguised ad campaign for Full Tilt Poker, designed to evade restrictions on broadcast advertisements for gambling sites.

But would a more serious poker-in-the-Olympics movement succeed? Ignore for the moment the question of whether poker is a “sport.” The Olympics aren’t just about “sports,” in the classic ball-on-grass sense. Competitions with greater mental than physical components are now recognized as legitimate Olympic events (one web site explains, “Some examples of mental sports include: archery, canoe/kayak, equestrian, fencing, sailing, shooting, and table tennis”). If Bridge has a case for inclusion, why not poker? Of course, Poker is perhaps a game with less of an international following than bridge (or at least, the Texas Hold ‘Em form dominant in this country in the post-Moneymaker era).

For regular (spoiler warning) coverage of the WSOP tourney, I’d suggest the Poker Prof’s Blog.

New Sports Law Scholarship this Week

New this week is the New England Law Review’s publication of its symposium, “From Grand Slams to Grand Juries: Performance-Enhancing Drug Use in Sports,” which was held in November, 2005. Some big wigs from sports law academia (e.g., Professors Mitten, Haagen, Weiler, Kurlantzick) and some folks with more practical backgrounds (e.g., Reggie Bush’s lawyer Wm. David Cornwell), are among the authors:

Gordon A. Martin, Jr, How it all began: the move to drug testing, 40 NEW ENGLAND LAW REVIEW 705 (2005-2006).

Will Carroll, The real story of baseball’s drug problems, 40 NEW ENGLAND LAW REVIEW 711 (2005-2006).

Denise A Garibaldi, The challenge and the tragedy, 40 NEW ENGLAND LAW REVIEW 717 (2005-2006).

Chip Dempsey, Steroids: The media effect and high school athletes, 40 NEW ENGLAND LAW REVIEW 731 (2005-2006).

Tracy W. Olrich and Mario J. Vassallo, Running head: psychological dependency to anabolic-androgenic steroids; exploring the role of social mediation, 40 NEW ENGLAND LAW REVIEW 735 2005-2006).

Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by “non-analytical” cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006).

Rick Collins, Changing the game: the congressional response to sports doping via the Anabolic Steroid Control Act, 40 NEW ENGLAND LAW REVIEW 753 (2005-2006).

Brian R. Cook, Dealing with the devil: “a commentary,” 40 NEW ENGLAND LAW REVIEW 765 (2005-2006).

Wm. David Cornwell Sr., The imperial Commissioner Mountain Landis and his progeny: the evolving power of commissioners over players, 40 NEW ENGLAND LAW REVIEW 769 (2005-2006).

Lisa Pike Masteralexis, Drug Testing Provisions, an examination of disparities in rules and collective bargaining agreement provisions, 40 NEW ENGLAND LAW REVIEW 775 (2005-2006).

Lewis Kurlantzick, Is there a steroids problem? The problematic character of the case for regulation, 40 NEW ENGLAND LAW REVIEW 789 (2005-2006).

Matthew J. Mitten, Drug testing of athletes—an internal, not external matter, 40 NEW ENGLAND LAW REVIEW 797 (2005-2006).

Paul Weiler, Renovating our recreational crimes, 40 NEW ENGLAND LAW REVIEW 809 (2005-2006).

Paul H. Haagen. The players have lost that argument: doping, drug testing, and collective bargaining, 40 NEW ENGLAND LAW REVIEW 831 (2005-2006).

Sunday, June 25, 2006
MLB Seeking Licensing Fees from Slingbox Maker

Eric Fisher of Street & Smith's Sports Business Journal (subscription only) reported last week that MLB Advanced Media is seeking licensing fees from Sling Media Inc., manufacturer of the popular Slingbox device (pictured to the right), for the distribution of televised baseball games. The Slingbox, which can be purchased by consumers for $200, is a device that geographically relocates the consumer's television signals to their laptops with no additional fee and essentially gives viewers the ability to watch their local stations no matter where they go. MLB claims that Sling Media is violating cable and satellite user agreements, pacts that MLB interprets for its content as tied to specific geographic regions. MLB currently sells various packages through DirecTV, Dish Network or In Demand on cable, providing access to about 60 games per week, as well as subscriptions pursuant to which every game is accessible over a computer, including a new product called Mosaic that allows viewing six games simultaneously.

Sling Media is not open to the idea of paying any fees to MLB. According to Sling Media chief executive Blake Krikorian:

“Maybe they should be paying us. Seriously. I’m still failing to see how we’re hurting them or their brand. We’re allowing more people to see more baseball, with all the same commercials, and stay connected to their teams. How is that bad? It’s additive to what they’re doing. We don’t need to be charging people a monthly fee. They’ve paid for our device and they’ve paid their cable bill.”

This case is an interesting example of the complex interplay between copyright law and new technologies. To MLB's credit, MLB does own the rights in the live events and has the legal right to control which cable and satellite networks will broadcast the live games. When the network broadcasts the games, using multiple cameras placed in various locations on the field using different camera angles, the network obtains a copyright in the broadcasted event and has the right to control the distribution and redistribution of the broadcast. So, arguably, the Slingbox device is capturing the live broadcasted events for free without the permission of MLB or the networks and then simultaneously distributing the live events to consumers on their laptops with no lag time. MLB can argue that Sling Media is "freeriding" off of the investments made by MLB and the networks to produce and broadcast the live events, especially now that MLB is actually selling subscriptions to access the live games over the computer.

On the other hand, Sling Media can argue that it invested in and produced the Slingbox and all of the technology associated with it. In other words, it could be argued that the Slingbox is just another piece of hardware or equipment that is sold to consumers and merely enables MLB's games to be viewed, similar to a television set. Certainly, nobody would claim that Sony is violating any copyrights when broadcasted games are viewed on its televisions and monitors or when music is played on its CD players. Also, the Slingbox device is not permitting viewers to access the broadcasts without paying the networks -- the consumer still pays the cable bill and would only have access to the games broadcasted through that cable network for which the consumer has already paid.

So which is it? Should Sling Media be viewed as stealing the broadcasted events from MLB and the cable and satellite networks, and unlawfully distributing the content to viewers without their permission. Or should Sling Media merely be viewed as a pioneer of just another emerging technological device that enables the content to be viewed? It's actually a combination of both, and it will be interesting to see how this gets resolved....

Friday, June 23, 2006
Gary Glitter Proof? The Law and Morality of NFL Game Day Music

The National Football League has asked its teams to refrain from playing Gary Glitter's popular anthem "Rock and Roll Part 2" (aka, the "Hey" song) on game day. In case you don't know what song I'm talking about, you can listen to it here. You will surely recognize it; it has to be one of the most regularly played songs during sporting events.

So why has Glitter's song moved onto the NFL's Do Not Play List? It's because he will be spending the next three years in a Vietnamese prison for molesting two young girls, and the NFL doesn't want its games to be associated with a convicted child molester. The league also doesn't want Glitter to earn royalties from the playing of his song.

But let's play Devil's Advocate for a moment, and pretend that we are Gary Glitter fans who regularly attend NFL games, and who find his music to be an essential component of the game experience. What might we argue to keep his song playing? Here are five arguments:

1) Being guilty in Vietnam isn't the same thing as being guilty in the United States.
In fact, Vietnamese courts employ a lower standard of proof for criminal convictions, and feature fewer procedural protections for criminal defendants. So perhaps Glitter might be a free man had those same charges been brought in the United States.

2) Glitter has long been suspected of being a child molestor.
I know what you are thinking: How is that a positive for Glitter? It isn't, but it invites the question of why the NFL would want to ban his song now. It isn't like Glitter's "problems" have been a secret. In fact, back in 1999, a British court convicted him of possession of child pornography, for which he served two months in jail, and he was classified as a sex offender. Maybe more revealing, the Cambodian Government--which somehow tolerates the genocidal Khmer Rouge--couldn't tolerate Glitter. It expelled him in 2002 for alleged sexual misconduct with children, an act which prompted his move to Vietnam. So why should a conviction of this guy in a Vietnamese court suddently make all the difference to the NFL?

3) What About Marv (Albert)?
Marv Albert is the lead play-by-play voice of Westwood One's NFL coverage, calls Monday Night Football games and has called every Super Bowl since 2002. This is true even though, in 1997, he pled guilty to misdemeanor sexual assault charges (after being charged with felony charges of forcible sodomy). Granted, his sexual crime was inflicted upon an adult, but Albert's role with the NFL is clearly larger than Glitter's, and Albert himself is far better known than Glitter. In fact, I had no idea who Glitter was before this story broke, and I never knew or bothered to learn who sung that song. It didn't matter.

4) Axl Rose and Ozzy Osbourne say Hey!
NFL teams routinely play songs by artists who have been in legal trouble. For instance, the song "Welcome to the Jungle" by Guns N' Roses is often played during NFL games. It is sung by Axl Rose, who was once arrested for assaulting a neighbor with a bottle of wine and is widely suspected of using illegal drugs. Or take Ozzy Ozbourne songs, or R. Kelly songs--they too are played during games and are sung by artists who have encountered legal troubles (and Kelly was recently arrested for statutory rape). If we ban Gary Glitter songs, then shouldn't we ban those songs, too? In fact, to be consistent, perhaps only songs sung by "decent" artists, like John Tesh or Kenny G or Amy Grant, should be played (and yes, I too would stop going to NFL games if that happened, but you see the point).

5) Does playing a song during an NFL game even celebrate the artist?
As mentioned above, I had no idea who sung "Rock and Roll Part 2," and didn't even know who Gary Glitter was. Maybe I'm in the minority on those fronts. But regardless, playing a song during a game seems more about celebrating the team or players who made great plays, and getting the crowd into the game, than about the artist who happened to have sung the song.

Taking off my Devil's Advocate cap, however, I actually don't have a problem with the NFL's request. The league doesn't want a convicted child molestor to receive royalties from the playing of songs during NFL games. Also, the league is not forcing teams to do anything; it is simply making a request. But I do see potential inconsistencies that might aggravate the Gary Glitter Fan Club, whose website, as Anonymous notes in the comments section, apparently may infect your computer with spyware if you are using Internet Explorer. So be warned before visting the Worlwide Glorius Glam & Glittering website or get the proper protection (i.e. download Mozilla Firefox) and then visit.

Thursday, June 22, 2006
Eugene Volokh on Tony Twist Case

It must be the week for bloggers to post about the legal issues relating to athletes' and former athletes' names. Michael's last post on Dale Jr. and my post on Gnarls are joined by UCLA Law Professor and conspiracist Eugene Volokh, who discusses hockey player Tony Twist's case against the creator of the comic book Spawn. Greg had a post about the U.S. Supreme Court's denial of cert in that case back in 2004. Professor Volokh wrote a brief in the case, in which Twist won a $15 million verdict that was upheld by the state appeals court.

Dale Earnhardt, Jr.: Suffix, Sports, and the Law

ESPN's Darren Rovell has a very interesting piece on Dale Earnhardt, Jr., who hasn't owned his name, or the rights to his own signature, for the past three years. Instead, his stepmother Teresa controls those rights. This peculiar outcome results from assorted agreements, including mere handshakes, between the late Dale Sr. and Dale Jr., as well as between Dale Earnhardt Incorporated (DEI, which represents Dale Sr.'s business interests) and JR Motorsports (Dale Jr.'s company for off-the-course business). It also results from Dale Sr. originally filing the trademark for Dale Jr.'s name, an act which Dale Jr. later consented to (and perhaps unknowingly). And when Dale Sr. died in 2001, the rights to Dale Jr.'s name were transferred to his Dale Sr.'s estate, the executor of which is Dale Jr.'s stepmom, Teresa.

But now Dale Jr. wants his name back, because he is apparently not getting a full cut on every product that bears his name. Doing so may be difficult, however: Teresa wants to keep Dale Jr.'s name because it raises the value of Dale Sr.'s estate, and legally she may have the upper-hand. According to J. Scott Evans, a Charlotte attorney who has registered trademarks for a number of drivers, "it's hard to revoke your consent once you've given it. If Dale Jr. has a problem with it now, that's between him and DEI."

Interestingly, this isn't the first time that a NASCAR driver has encountered a trademark issue with his name. Take Geoff Bodine's name plight:
Geoff Bodine, the NASCAR driver who had 570 starts from 1979 to 2004, says he didn't own his own name for a long time. In the '80s, according to Bodine, a man successfully trademarked his name without his consent, then tried to blackmail him. It's one of the reasons Bodine sometimes was referred to as Geoffrey.
There is a lot more to the story, including a discussion on how so many NASCAR drivers trademark their names. It is definitely worth checking out, as is Geoff's recent post on Charles Barkley's name trademark issues.

Update: Dale Jr. has reached an agreement with stepmom Teresa that gives him his name back. As my former civil procedure professor John Harrison would often say, you never like to see cases where the plaintiff and defendant share the same last name. It looks like we'll be avoiding that here.

Wednesday, June 21, 2006
Notre Dame Receiver Signs "Fat" Contract with Cubs

Those of you who follow college football and/or may have watched Notre Dame at all last season may recall the tall, lanky and athletic receiver with a unique last name and long hair protruding from the back of his helmet. Baseball America's John Manuel reported this week that Jeff Samardzija, a fifth-round pick two weeks ago by the Chicago Cubs, agreed in principle with the Cubs on a contract that will allow the righthanded pitcher to continue his all-America football career at Notre Dame this fall while pursuing a career in professional baseball ("Cubs agree to deal with Notre Dame two-way star"). It is reported that Samardzija would receive a $7.25 million bonus if he makes baseball his primary sport, and the deal is backloaded with Samardzija receiving less than $1 million in the first year of the deal.
MLB rules permit teams to spread out payment of the signing bonus over 5 years with respect to two-sport athletes (otherwise, the bonus must be paid in full by the end of the calendar year of the year following the year in which the player was drafted -- i.e. within 1.5 years).

The contract allows Samardzija to keep his options open in football, as he is also projected to be a high NFL draft pick next year. But if and when he decides to focus exclusively on baseball, he is guaranteed $7.25 million -- which would be the largest signing bonus ever given to an amateur player. Thus far, the highest signing bonus ever for a player that signed with the club that drafted him is $6.1 million paid by the Diamondbacks to the 2005 No. 1 overall pick Justin Upton. According to Manuel, the inconsistent quality of his breaking ball and football commitment was one question that prompted Samardzija, a consensus first-round talent, to fall into the fifth round.

While I will be the first to question the use of statistics as a scouting tool, his numbers are not at all reflective of a typical first-round talent, let alone a number one pick. In three seasons for the Irish, he was 21-6, 3.82 (including 8-2, 4.33 this past spring), and his strikeout rate was low for a pitcher with power stuff. He had 61 strikeouts in 98 innings in 2006 and 159 strikeouts (and 84 walks) in 240 career innings.

This is obviously a great deal for Samardzija, and it will be interesting to see how it will impact the contract of two of the consensus top pitchers in the draft this year who have yet to sign a contract -- No. 1 pick Luke Hochevar (Royals) and No. 6 pick Andrew Miller (Tigers). I would suspect that the Royals and Tigers, who are probably negotiating bonuses in the $4M - $5M range, are not very pleased about Samardzija's deal.

Northwestern Soccer Hazing Scandal Claims Coach

Northwestern Women's Soccer Coach Jenny Haigh fell victim to her teams' "hazing" antics, about which I blogged here, and resigned yesterday. has yet to gloat.

Gnarls, Charles, and Trademark Rights in Proper Names

In yesterday’s Philadelphia Daily News, Dan Gross says that former NBA player Charles Barkley “likes” the music group “Gnarls Barkley,” whose hit song Crazy is one of the unofficial anthems of the summer.

Gross writes (HT to Ben Maller):
CHARLES BARKLEY says he's “flattered and honored” to be the namesake of Gnarls Barkley, the hip-hop/rock duo comprising Danger Mouse and Cee-Lo.

The Round Mound of Rebound says he has their CD “St. Elsewhere,” and “it's pretty good, an interesting mix of rock and rap.”

“I'm excited for all their success,” Barkley told us yesterday.

Gnarls, who blend hip-hop, rock, funk and soul, and who performed their hit “Crazy” while dressed as “Star Wars” characters at the recent MTV Movie Awards, are getting serious, and well-deserved, acclaim for “St. Elsewhere,” their debut CD.
Earlier, the group had denied any such connection between Sir Charles and Gnarls. The band told the Observer Monthly
“You ask me why we're called Gnarls Barkley and I'm asking you “why not?”,’ says Cee-Lo. He's hunched over a burger in a hotel suite in Burbank, California, talking about the group for the first time. “The name Gnarls Barkley isn't anchored down. It's a drifter. A High Plains drifter, I might add.”

Danger Mouse grins. “There's no story behind it,” he says, reaching for the cheesecake. A Mouse who likes cheese - no surprises there. “The name doesn't have anything to do with anything.”

Not even Charles Barkley, the basketball player?

“Nope. It's just like everything else on this record. There was no conscious decision about stuff.”
Let’s say, as the Daily News does, that the name is dervied from the proper name Charles Barkley. What if the athlete didn’t like the music? Suppose that instead of being flattered, Charles Barkley was steamed up. What if instead of a pleasantly deranged pop band, Gnarls Barkley was a death metal neo-fascist rave DJ? What rights, if any, would Charles have to stop Gnarls from using its name? In the 1996 case Abdul-Jabbar v. General Motors, the Ninth Circuit afforded trademark protection under the Lanham Act to the name “Lew Alcindor,” explaining, “One's birth name is an integral part of one's identity.” The key question under the Lanham Act would be whether Charles could prove a “false endorsement claim based on the unauthorized use of a celebrity's identity ••• [which] alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product.” Yogi Berra, as Greg noted here, got an undisclosed settlement after Sex and the City appropriated his name.

Are consumers likely to be confused about whether Charles Barkley endorses the band? Would the band have a defense based on altering the name somewhat (that is, because it changed a “Ch” to a “Gn” and dropped an “e”)? Is it possible some people might confuse Cee Lo with Barkley, and think that Sir Charles has gone from rebounding to singing high notes? With Cee Lo in the wig and hat, or in a Darth Vader costume, is such confusion impossible? [George Lucas's IP claims are a completely different matter, beyond the scope of the Sports Law Blog].

Tuesday, June 20, 2006
South African Sports Law Conference

Readers in the area (or with particularly large conference budgets) may be interested in the first South African Sports Law Conference, scheduled for September 14-15 at Stellenbosch University. According to the conference flyer:
South African sport is currently in a state of flux, experiencing significant upheavals and uncertainty due to a number of factors, e.g. the following:
Continuing difficulties (especially in the major high profile professional sports of soccer, rugby and cricket) in adapting to professionalism and the demands and circumstances of the modern global sports market;

Grappling with the legacy of apartheid in respect of unequal development in different sports and between different groups within a sport, as well as traditional discord and divisions in the governance of sport;

The unique role of politics in the governance, regulation and development of sport in South Africa post 1994; and

Recent, far-reaching, developments in respect of the State’s regulatory scheme and role in sport.
Against this background, the proposed theme for the event will be to analyse, from a legal perspective, a number of relevant issues regarding the current state of SA sport and its management; specifically examining the different problems experienced in recent times in respect of the governance and regulation of our major (especially professional) sports.

Tax Consequences of World Cup Parties

Cincy law professor and tax expert Paul Caron has an interesting post on the tax treatment of World Cup parties thrown by employers in the U.S. and U.K.

Monday, June 19, 2006
Bad Words & Sports

Foul language in sports appears to be on the rise this week, and, interestingly, it's not from a grizzled tobacco-chewing manager or an emotional player. Rather, hangers-on like the always-two-breaths-from-a-mental-breakdown Mark Cuban and the silly would-be Wrigley Field tenor Jeremy Piven are leading the way. For those interested in the legal issues raised by troublesome words, see Ohio State University law professor Chris Fairman's recent article here.

New Sports Law Articles Available on Westlaw and Lexis

My library provides a wonderful service of forwarding me on a digest of recently published law review articles by subject matter. Periodically, I’ll post a notice of newly published articles on the blog (unless a chorus of voices objects). As you will see, most of these pieces are student-written (which may reflect the much greater interest on the part of students in sports law than among professors). New in June:

Gregory Matthew Jacobs, Comment, Curbing their enthusiasm: a proposal to regulate offensive speech at public university basketball games, 55 CATHOLIC UNIVERSITY LAW REVIEW 547 (2006).

Tracey Oh, Note, From hockey gloves to handcuffs: the need for criminal sanctions in professional ice hockey, 28 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 309 (2006)

Stephen M. Yoost, Note, The National Hockey League and Salary Arbitration: time for a line change, 21 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 485 (2006)

Sunday, June 18, 2006
World Cup Politics

My thanks again to Michael and everyone else for their allowance of my posts. I dedicate this also to my father, whose life with my mother began in the shadow of the Vietnam War and who always commended to me the nexus between sports and war.

The World Cup has also brought this connection to the front. On the one hand, the proposed visit of the Iranian President to Germany, a nation that criminalizes the denial of the Holocaust, has caused its own controversy. That story has been marred largely by the poilitical triangulation of Neo-Nazi and Anti-Nazi forces in Germany with the Iranian President.

Yet the more pertinent story, I think, is the ban on the World Cup instituted by a fundamentalist Somali caliphate. They control only a part of the country. Yet the notion here is that the advertisement of alcohol marks the World Cup as inappropriate for an Islamic audience. They have banned the viewing of the Cup, including its showing in public film halls. Somali film halls showing soccer games have been a site for warfare before this World Cup, as well.

I favor the depoliticization of sports, where possible. Here, I think it is. A norm developed during the Middle Ages and afterwards, concerning using Churches as sanctuaries (see 16 St. Thomas L. Rev. 473). I wonder if sports halls can be treated in the same way and if a consensus could build to condemn violence at sports arenas (and film halls showing sports events). I wonder too whether sports halls could become a forum for humanity, where various sides of political conflicts can come together. Though not an apolitical ambition, I hope it a worthwhile one. If it is soccer or sport that unites a divided nation, so be it.

Ambush Marketing and the De-Pantsing of the Dutch

An interesting development at the World Cup relating to "ambush marketing," a thorny problem in sports marketing that Greg discussed a while back. Ambush marketing generally "is where a rival company to an official sponsor buys ad space in and around key venues, hoping to receive exposure and association with major events." The practice is of questionable legal validity and poses some ethical challenges as well. Recent legislation in a number of countries has targeted ambush marketeers.

The "ambush" here consisted of a Dutch beer maker Bavaria NV (a rival of World Cup official beer, Bud Light) giving out orange pants to thousands of Dutch fans featuring Bavaria's logo on the rear section of the pants. Holland's fans love to wear orange -- and orange pants are generally hard to find outside of an Austin Powers movie.

FIFA refused fans wearing the pants admission to the Netherlands-Ivory Coast soccer game, leading thousands of fans to remove their pants and watch the game in their skivvies!

Saturday, June 17, 2006
Justice Alito's Pitching Arm?

Any readers in Philadelphia? I'd love to hear a report on Sunday's Phillies-Devil Rays game, at which Supreme Court Justice Samuel Alito will throw the first pitch. Will Justice Alito practice before his pitching debut, like Justice Stevens did before throwing a high and wide pitch at Wrigley last September? Justice Stevens was believed to be the first Justice to throw out a first pitch. Memo to Justice Alito: Don't wear the uniform you got at Fantasy Camp, or you will get booed.

UPDATE (June 18, 2006): Wearing the uniform, he got it over the plate.

UPDATE #2 (June 19, 2006): Appellate litigator Howard Bashman attended the game (HT to the WSJ Law Blog), and offers this report on his blog:
I had the pleasure of attending today's Phillies game in the presence of two Sams. As usual, my son and I were there as part of our Sunday season ticket package. Also in attendance was the person who is likely the highest-ranking Phillies fan in the federal government, U.S. Supreme Court Justice Samuel A. Alito, Jr.

Justice Alito was present to throw out the ceremonial first pitch, along with two other people who don't serve on the highest court in the land. Of course, the only one of those three ceremonial first pitchers whom the umpires were interested in being photographed with after they took the field was Justice Alito. . . . I guess this proves that work as a Justice on the U.S. Supreme Court need not be all-encompassing even in late June of your first Term.
Unfortunately, Bashman provides no report on the Justice's arm (perhaps because he has frequent business in the court?).

The Legality of Clubhouse "Codes of Conduct"

In an effort to get some of the L'Affair du Grimsley egg off its face, the Arizona Diamondbacks may implement a "Code of Conduct" for its players that is more stringent than Major League Baseball rules, as reported here. The Arizona Republic's headline: "Rules May Block Kendrick's Code of Conduct." Who's cited in the article for the proposition that such a move would be illegal? A law professor? A union executive? Nope, shortstop Craig Counsell:
"A code of conduct will not happen," shortstop Craig Counsell said. "Our rules in this game are through the collective bargaining agreement.

"If it's through the collective bargaining agreement, if it's something that's bargained, fine. But for me, doing things individually, team by team, is a dangerous precedent, and I don't think it's something we should get into."
Is Counsell’s counsel correct? He is certainly is right that baseball has collective bargaining. As to “mandatory subjects” of collective bargaining (broadly speaking, wages, hours and working conditions), an employer could not make a change mid-contract that imposed more onerous restrictions on employees without committing an unfair labor practice. There’s little doubt that a drug testing policy would be a mandatory item of bargaining as a “condition of employment”. While the exact scope of the Code of Conduct hasn’t been released, it would likely touch on mandatory items. And since the team has threatened to release players who violate the Code, regardless of the scope of the Code it likely affects the wages of the team's employees.

However, where Counsell may be going astray is in his presumption that because MLB is it will always be represented by just one bargaining voice. The Diamondbacks are tied to the MLB collective bargaining agreement only because Major League Baseball is a "multi-employer bargaining unit." Each team employs its own players -- that is, MLB players are not employed by the league. Multiple employers can consent to negotiate collectively, which MLB teams have done, delegating authority to the Player Relations Committee (PRC) to negotiate collectively on the teams' behalf. That consent must be genuine. Unions may not coerce employers to bargain as a multi-employer unit, and employer consent to negotiate as a multi-employer unit can be withdrawn -- either before the next contract is negotiated, or in "unusual circumstances" (notably, an employer can’t withdraw from a multi-employer bargaining unit after impasse is reached during negotiations). If the union wants to push the issue here, the Diamondbacks could always withdraw from the multi-employer unit before the date of the next contract negotiation (this December). The D-backs players would still have the right (by way of the MLBPA) to negotiate a contract with the team, but it would be a contract that applied only to D-backs players. Might the team also have room to argue that the Grimsley affair (and the current federal investigation of baseball) has created “unusual circumstances” allowing a team to break free of the multi-employer bargaining unit mid-contract?

UPDATE: Reader Pete Kreher writes to inquire whether my suggestion--that a baseball team could (NOT will), prior to the next bargaining session, withdraw from the multi-employer bargaining unit--is consistent with the Fifth Circuit's decision in NASL v. NLRB, 613 F.2d 1379 (5th Cir. 1980). That's a very good question. In NASL, the 5th Circuit held that the league and individual teams were joint employers and thus that multi-employer bargaining was mandatory. Some have indeed read that case as meaning that all sports leagues must bargain as a multi-employer unit (for example, the attorneys briefing Brown v. Pro-Football in the Supreme Court, see 1996 WL 72350 at 15 n. 8). To be sure, there are many legal and negotiating advantages to be had by teams in bargaining as a multi-employer unit (notably, the non-statutory labor exemption from antitrust law, which may or may not be of significance in baseball, depending on what one views the scope of the "business of baseball" exemption to be in light of Flood v. Kuhn and the Curt Flood Act). I'm not sure that NASL was good law when it was decided, or that its reasoning would be extended to sports leagues other than the now-defunct NASL. To my knowledge, courts and the NLRB have followed NASL only in connection with Arena Football and a rodeo league. This issue was the one of the subjects of Tulane's Sports Law Moot Court competition a few years ago, see 11 Sports Law. J. 273. As others have pointed out, it would be an odd result to hold that a sports league is a joint employer (for the sake of the NLRA), but not a "single entity" for the sake of the Sherman Act. Since most case law suggests that the major leagues are not single entities, it would produce some instability in the law to hold that they are joint employers.

Friday, June 16, 2006
North Dakota Fighting NCAA Over Use of "Fighting Sioux"

Last year, the NCAA announced a ban on member schools' use of nicknames, mascots and logos in postseason tournaments that it deemed ethnically or racially demeaning to American Indians. The NCAA determined that at least 18 schools, including the University of North Dakota, violated the policy. Since then, the NCAA has rejected two UND appeals saying the university may not use the nickname or logo during NCAA postseason tournaments, and it may not host a tournament if it continues using them. AP writer Dave Wetzel reported yesterday that UND is now ready to sue the NCAA.

It is very difficult for a party to successfully sue the association of which it is a voluntary member because voluntary associations are generally free to enact rules and policies, and make decisions, governing their members. However, a member can successfully challenge the association's decision if the member can show that: (1) the association violated its constitution or bylaws (and thus didn't have the authority to make the decision) or (2) the association acted in an arbitrary or discriminatory manner.

There are three statements I pulled from Wetzel's article that were made by North Dakota Attorney General Wayne Stenehjem (who is apparently going to file the lawsuit and bill UND for the legal work), which tend to suggest that UND is asserting both of the above claims. First, Stenehjem asserts that "the NCAA's executive committee used constantly changing standards in deciding which colleges could continue using nicknames of American Indian origin and which could not." Second, Stenehjem stated that the committee "decided, more or less by fiat, that some institutions were going to be subject to this rule, and some institutions, for reasons that are not understandable, were exempted." [For example, Florida State University, Central Michigan University and the University of Utah are permitted to use their Indian nicknames without facing any postseason sanction.] Third, he stated that the NCAA's action violated its contract with its members in that its constitution requires that major decisions be approved by two-thirds of its college membership, and no vote was ever taken.

We all knew that when the NCAA implemented this ban last year that there would be disputes over the subjective standard of what constitutes "hostile and abusive" to American Indians. But if UND is asserting that the NCAA's initial determination regarding the 18 schools in violation of the policy was decided "more or less by fiat," I think the NCAA prevails so long as the NCAA acted in good faith in deciding which schools' nicknames and logos were hostile and abusive. I also think the NCAA prevails if UND is asserting that the NCAA arbitrarily determined which of the 18 schools on the list would continue to be banned. If memory serves me correct, the NCAA decided that it would exempt any school on the list if it could demonstrate that the local tribe consented to the use of the nickname and logo (which FSU, CMU and Utah were able to demonstrate). While Wetzel's article doesn't address it, to my knowledge, the Spirit Lake Sioux tribe still has not consented to UND's use of the name ("Tribe rejects Fighting Sioux nickname"). Therefore, it seems that UND would have a difficult time establishing that the NCAA acted in an arbitrary or discriminatory way against UND under these circumstances because the same standard applied to all 18 schools and, regardless of whether you agree with it, it seems like a reasonable compromise by the NCAA with respect to these 18 schools found in violation.

Even if UND could establish a claim against the NCAA, an interesting question would be, what are its damages? First, the ban only applies during postseason tournaments, so arguably UND has no damages yet and maybe the NCAA can argue that a lawsuit right now by the NCAA is not ripe. Secondly, even when UND enters postseason play, what are the damages for not being able to use the nickname and logo during those games? UND may or may not need to buy new uniforms depending upon whether the uniforms even have the nickname and/or logo (presumably they already have jerseys that just say "North Dakota" but that is pure speculation on my part). UND may also incur some cost by removing decals on helmets for postseason play and then reapplying them for the regular season. And I suppose UND would incur some costs associated with covering up banners with the nickname and/or logo when UND hosts a postseason tournament.

Now, to UND and its alumni, this is obviously not about the money. But in court, I'm afraid that it is....

Vecsey's Thoughts on Fortson v. Colangelo

I asked Peter Vecsey if he had any thoughts I could share with our readers regarding his victory in Fortson v. Colangelo, which I blogged about yesterday. Here's his response:
From: Peter.Vecsey
Sent: Friday, June 16, 2006 4:36 AM
To: Rapp, Geoffrey
Subject: RE: Fortson v. Colangelo

As a veteran NBA columnist/analyst, upon cringing at the sight of Danny Fortson, "The Flagrant Forward," unconscionably upend Zarko Cabarkapa in mid-flight, I couldn't help but insult him every way imaginable.

If you've played the game at any level, it's understood how dangerous it is to knock someone off balance or be knocked off balance while stretched out airborne holding the ball. You're completely vulnerable. It's like slipping on ice. You're walking gingerly and suddenly you're seeing your legs splayed above your head and your back and neck are about to hit the ground hard with scant reflex time to brace your fall, other than throw your arm back.

This is what Zarko did and, as a result, he broke his wrist. He lost almost the entire season a rookie year (maybe even a career) that had been very promising. While physically repaired, I'm still not sure if he has recuperated from the mental trauma. The Suns certainly didn't think he had because they traded him first chance they could.

In any event, the 6-8, 260-pound Fortson's intentional two-handed shove of a defenseless opponent was as dirty as it gets, especially since the game had long been decided. There was nothing to gain other than to show people how little regard he had for another human being. Had that happened in a playground, schoolyard, "Y" or whatever, and the submarined player was able to get up in one piece, there would've been a fight.

Fortson prides himself on being an enforcer. He relishes his role as a hit man. His eyes flash demonically after nailing opponents with forearms to the backs of heads. He loves that distracted opponents fear how far he might escalate his bent for violence. He revels they're always on the lookout. He wants us to believe he's the baddest bully on David Stern's block. He wishes there were no referees to protect them.

Next thing you know, Fortson, a multi-repeat offender when it comes to uncivilized behavior between the lines, is crying to the court because Jerry Colangelo and I branded him a thug...when, in fact, he is a broken down wanksta.

The court should have thrown out Danny Pigtails' frivolity at first base, not wait until it was rounding third and charging into home plate.

Outsiders may view the court's decision as merely a first amendment victory. Or, because Fortson is a public figure, they may believe proving slander against a columnist with an acutely negative opinion, is impossible. I find comfort in the cliche that there's no defense as unbeatable as the truth.

Peter Vecsey

Thursday, June 15, 2006
Taxonomy of Legal Blogs

Buckeye 3L Ian Best has developed a Taxonomy of Legal Blogs for those who might have an interested in law other than sports law.

Danny Fortson Loses “Thug” Suit Against Jerry Colangelo and Peter Vecsey

Last week, NBA journeyman and “flagrant foul machine” Danny Fortson lost his defamation suit against Suns owner Jerry Colangelo. The dispute concerned comments Colangelo made in 2003 after Fortson (then with Dallas) committed a flagrant foul leading Suns rookie Zarko Cabarkapa to break his wrist. At the time, the AP recounted:
Fortson was called for a flagrant foul on the play, and Suns owner Jerry Colangelo said he will ask the NBA to fine or suspend the Dallas player.

"Whether it's a fine or a suspension, it's not enough for him," Colangelo said. "He should be put down for every day that he (Cabarkapa) is out. I'll do everything in my power to see that happens. With the game over, there was no need for that."

The injury came with 2:58 left and the Suns leading 112-88.

"He's a thug," Colangelo said.

Before leaving, Fortson said he apologized to Cabarkapa.

"I had no evil intent," he said.

Cabarkapa was in tears in the Suns' dressing room, but later composed himself and said through a translator, "I can't comprehend it. I don't know exactly what happened. I just know I was trying to drive to the basket and Fortson pushed me."
In October, 2004, Fortson sued Colangelo, the New York Post, and Peter Vecsey (Vecsey characterized Fortson—directly or by implication—as “thugged out,” a “vacant lot,” a “wanksta” and a “meaningless mass” in his column in the Post). The District Court (S.D. Fla.) granted summary judgment on June 5 in favor of Colangelo and the Post’s holding company (the Westlaw citation is 2006 WL 1589793) (Vecsey was never served a copy of the complaint).

Mike has explained how hard defamation cases can be to win in connection with John Daly’s “Thug Life” case here and here Bob Lobel’s “drunk sportscaster” suit here.

Ultimately, Fortson was done in by the court’s characterization of Vecsey’s and Colangelo’s words as “rhetorical hyperbole” rather than fact. Rhetorical hyperbole falls on the non-actionable “opinion” side of the fact-opinion divide in defamation law. What the court calls Fortson’s “well-publicized history of overly aggressive play (fouls, ejections, fines, and suspensions)” didn’t help his case.

The court opined that “[t]o foreclose the use of hyperbole, under the threat of civil liability, ‘would condemn [sports commentary] to an arid, desiccated recital of bare facts.’”

While this story has been covered in the media in the past, no news outlet has yet reported the court’s opinion (as far as I can tell).

Wednesday, June 14, 2006
The Legality of Oral Promises by NBA GMs to Potential NBA Draft Picks

Jeff Clark of Celtics Blog e-mails me an interesting topic to consider: oral promises made by NBA general managers to potential draft picks. In these promises, a GM promises a draft-eligible player that if he is still on the board when the team selects, the team will draft him. Here are Jeff's thoughts:
What kind of agreement is in place here? Is it considered a oral contract? What are the ramifications of backing out? I believe the Celtics asked Orien Greene if they could back out of their promise last year when they saw that Amir Johnson was still on the board.
Clearly, oral promises are of great value to the players who receive the promises. Perhaps foremost, a promise indicates a "worst-case scenario" (i.e., at worst, the team making the promise will pick him). Moreover, for some underclassmen, a promise can help them decide whether they should remain eligible for the draft or return to school. The same is true of international players who already earn high salaries playing in Europe: remaining eligible in the draft only makes sense if they are going to be a high enough pick (and thus command a high enough salary). Others will use promises to help determine which teams to workout for--if you have a promise from, say, the Seattle Supersonics, who pick 10th in this month's draft (June 28), then you will probably spend your time meeting with teams picking 1-9, rather than those picking after 10.

Promises also supply important benefits to teams. For instance, they may convince the player receiving the promise to remain in the draft (if that is an issue). Or they may discourage the player from meeting/working out with other teams, thus raising the probability that the player is still on the board when the promising team selects.

And promises have clearly been influential. For example, in the 2003 NBA Draft, Celtics GM Danny Ainge promised high school senior Kendrick Perkins that the team would select him in the first round; without that promise, it is thought that Perkins would have matriculated to the University of Memphis to play for John Calipari. And Ainge kept his promise (by way of a trade with the Memphis Grizzlies). In that same draft, at least two other high school seniors received first round promises--Travis Outlaw (Portland) and Ndudi Ebi (Minnesota)--and those promises were also kept. Interestingly, one of the top high school players in the 2004 NBA Draft who did not receive a first round promise was LaMarcus Aldridge, who, without the promise, removed his name from consideration and matriculated to the University of Texas. Fast-forward two years, and Aldridge is expected to be one of the top three picks in this month's drafts. Brandon Roy--who is also projected to be a top pick--has a similar story from the 2002 NBA Draft. Promises were so influential in the 2005 NBA Draft that Sports Illustrated Ian Thomsen's recap of it was entitled "Behind the Curtain: Promises, Surprising Picks Quietly Shaped '05 Draft." In this draft, it is thought that international player Tiago Splitter won't stay in the draft unless he obtains a promise from a team picking in the lottery (apparently, the buyout in his European contract is too costly to take mid to late 1st round money).

But what happens when a promise isn't kept? And has that ever happened?

First off, I'm unaware of an instance where an oral promise to a potential draft pick was broken, although in a recent interview with the Portland Oregonian, Portland Trail Blazers President Steve Patterson said, "There can be promises that just don't work out to be so guaranteed." I'm not sure whether Patterson is alluding to broken promises in the past or the potential for broken promises (he was discussing Tyrus Thomas), but other than his statement, everything I've read suggests that teams do, in fact, fulfill their draft promises. However, if you know otherwise, please contact me--I would appreciate it. **UPDATE**: A couple of people commenting on True Hoop say that both Rashard Lewis and Vladimir Radmanovic were the victims of broken promises--and their agents were irate--check out the post.

Hypothetically, let's say that a team in the 2006 NBA Draft doesn't live up to its word. And let's try this hypo: Celtics GM Danny Ainge promises point guard Marcus Williams that if he is still on the board at #7 (when the Celtics pick), Ainge will take him. But on draft night, something strange happens: power forward LaMarcus Aldridge--who, as I note above, is projected by most draft experts to be a top three pick--is still on the board at #7. And Ainge decides to take Aldridge instead.

Can Marcus Williams successfully sue Danny Ainge and the Celtics for breach of contract or detrimental reliance? The answer is probably "no" but not without some decent arguments by Williams. Here's why:

Although many oral contracts are enforceable, the Statute of Frauds (adopted in some form by all 50 states) requires that there be a written contract for any contract that entails more than one year of performance. Here, Williams would have to sign a rookie first round contract, which would entail at least three years of performance, and possibly five depending on the exercising of team and player options. On the other hand, perhaps Williams could argue that oral contract between he and the Celtics only concerned the draft itself, and not the subsequent player contract he would sign. Under that interpretation, the Statute of Frauds would not apply.

But even then, Ainge could argue that the alleged agreement lacked "consideration," which requires that each party give something up for formation to a contract. Ainge could say that Williams didn't give up anything when he received a promise from him--Williams was going to participate in the draft no matter what (in contrast, with the Kendrick Perkins example described above, Perkins could argue that his consideration was in remaining eligible for the draft). But Williams could argue, perhaps, that he decided to not work out for certain teams after receiving Ainge's promise--and to the extent that hurt his draft position, he did give something up: his stock with certain teams. Such an argument would be consistent with a detrimental reliance (promissory estoppel) claim, which does not require consideration, but modern courts are usually reluctant to recognize it.

Yet even if Williams could argue that there was a valid oral contract, keep in mind that oral contracts are extremely difficult to prove. Did Ainge really promise Williams, with 100% certainty, that he would take him, or was it more of a "if you're still on the board when we pick, I think you might enjoy playing with Paul Pierce" type of statement? Contract law typically considers that kind of nebulous promise to be an illusory promise, which is not enforceable. And were there any witnesses? Would it simply be Williams' word versus Ainge's word? Or Williams' agent's word versus Ainge's word?

Alternatively, what happens if Williams is still on the board at #7 and Danny Ainge is about to select him when, suddenly, former teammate and Minnesota Timberwolves GM Kevin McHale calls Ainge up and says, "Danny, hold on a second! Look, we'll trade you Kevin Garnett for that pick, plus Al Jefferson, Gerald Green, and Dan Dickau." And Ainge decides to make the trade. And with the 7th pick, McHale selects center Patrick O'Bryant. Marcus Williams then free falls, until the Philadelphia 76ers select him at #13. Would Williams have a claim against the Celtics in that instance? Here, I think the answer is almost certainly "no," since an oral promise to draft a player is likely conditional on the player being there at that pick and that the team actually makes that pick--but you can see the interesting legal complexities of oral promises in the context of the NBA Draft.

This analysis shouldn't be limited to the "legal," however. Consider the possible reputational harm a GM might endure if he breaks a promise. He would lose credibility and possibly generate negative attention for his employer. He could also suffer a backlash from certain agents, which could affect his capacity to sign free agent players in the future. Those types of consequences may be far more powerful than any legal issues.

Also see: True Hoop's Henry Abbott discussing this post (6/14/2006).
Also see (2): Celtics Blog's Jeff Clark discussing this post (6/14/2006).
Also see (3): Contracts Prof Blog's Carol Chomsky discussing this post (6/14/2006).
Also see (4): Oral Promises & Professional Sports: The Carlos Boozer Saga (7/13/2004).