Sports Law Blog
All things legal relating
to the sports world...
Wednesday, January 31, 2007
Sports and Due Process (Or More Looking Over Game Officials' Shoulders)

O.J. Mayo of Huntington (W. VA) High School, purportedly the best high-school player in the country and bound for U.S.C. next fall, played in a high-profile basketball game Tuesday night against Lakewood (CA) Artesia High School. This was one of those increasingly common made-for-TV games; this one was played at Duke's Cameron Indoor Stadium between top-ranked high school teams, neither of which is particularly close to Durham, NC. Mayo scored 19 points before fouling out in Huntington's win.

This is worth mentioning on Sports Law Blog because Mayo needed a court order to play in the game.

Mayo (along with five teammates) was ejected from a game last Friday night. Mayo received two technical fouls, the second for taunting opponents after a second-half dunk. That technical lead to an on-court scuffle between players on both teams. Video is here. After the second technical, Mayo followed the official to the scorer's table; he and the official made some body contact (how much is in dispute) and the official fell to the floor. Under West Virginia Secondary School Activities Commission (SSAC) rules, a player ejected from a game is suspended for the next two games. And a player who in protest makes contact with an official can be suspended for up to one year.

But hours before Tuesday's game, Mayo won a Temporary Restraining Order from Cabel County Circuit Judge Dan O'Hanlon, allowing him to play in the game and prohibiting SSAC from enforcing its suspension rules until a hearing on February 9 to determine what process SSAC must give Mayo before suspending him. Stories here and here.

I have not read the court's order and am working off sports media reports, which often do not accurately capture legal detail. The stories contain pithy comments from one of Mayo's lawyers about how the players "deserve an opportunity to be heard before they are denied the chance of a lifetime because of an arbitrary enforcement of a rule they did not intend to violate." And another lawyer (who also is an assistant coach) insists Mayo did not intend to make contact with the official and, if anything, it was the ref who initiated the contact. You get the idea. I am opining off less-than-complete legal information.

That said, I cannot understand how the court could issue this TRO. I do not see what process Mayo should be entitled to that would allow him to avoid at least a two game suspension.

Take the ejection and put the bumping to one side for a moment. The SSAC rule is clear and (I believe) unequivocal: If you receive two technical fouls and/or are ejected, you sit two games. The only question is whether Mayo was, in fact, ejected because he received two technicals. That fact seems undisputed and indisputable. A hearing or other process from SSAC does nothing to change that. The rule is not being arbitrarily enforced--it kicks in whenever a player is ejected, as Mayo assuredly was. And whether Mayo or the other players intended to violate this rule (the point the attorney/coach made) is an utter non-sequitur; I assume no player ever intends to get two T's or intends to get ejected from a game. Intent is irrelevant to the rule.

So if a hearing will change nothing about the two-game/ejection suspension, the TRO should not have issued. One thing a plaintiff must show in order to get a TRO is that he is "likely to succeed on the merits"--that the claims he is bringing has merit. Mayo is making a due process argument, which means he has to show that he is entitled to some process and that it would make a difference. I do not see how it makes a difference as to this rule.

Unless, of course, Mayo wants a hearing so he can argue to SSAC that it should reverse the referee's decision to give him the second technical. If so, that is an extremely dangerous and bad idea, for reasons similar to what I discuss in an earlier post. Game officials have a difficult enough job without fear that their immediate in-game decisions, such as whether to call a violation, are going to be subject to reversal from above when they call something on the wrong player (a top-5 national star) at the wrong time (on the eve of a mythical national championship game). This is an example of the type of discretionary decision that must be largely immune from review if we want refs to be able to do their jobs. The notion that Mayo has a constitutional due process right to a hearing to ask SSAC to reverse the official's in-game determination would make sports contests ungovernable. This would set a bad precedent.

Now, the potential suspension for bumping the ref is a different story. Whether a bump occurred, whether it was intentional, and whether it was "in protest" all are in dispute and all are necessary for application of the rule. Plus, whether a suspension should occur and its length are within SSAC discretion, probably depending on the severity and intent behind the contact. A hearing is necessary to resolve those factual issues, so Mayo is entitled to some process before a bumping suspension is imposed.

But that alone does not justify the TRO that allowed Mayo to play on Tuesday. It seems that Mayo should have to sit, at a minimum, two games--the Cameron game and one more--as punishment for the ejection. Anything beyond that would be punishment for the bump and he is entitled to a hearing before such additional games are added.

But there was no reason for the court to interfere now. At least no reason beyond everyone wanting to see O.J. Mayo play in that particular game.

andré douglas pond cummings and Gabe Feldman: Guest Bloggers

We are thrilled to have two distinguished scholars guest blog: andré (dré) douglas pond cummings and Gabe Feldman.

dré is an associate professor of law at West Virginia University College Law, where he teaches sports and the law, civil procedure, and other courses. He's originally from Los Angeles and is a graduate of Brigham Young University (where he was on the track team) and Howard Law School. He later practiced law in Chicago at Kirkland & Ellis, where he represented NFL players and Hollywood screenwriters and novelists. He has won numerous teaching awards and has published articles in such scholarly journals as the Harvard BlackLetter Law Review, the Nebraska Law Review, the University of Louisville’s Brandeis Law Review, and the Howard Law Journal.

Gabe is an associate professor of law at Tulane Law School, where he teaches sports and the law, antitrust, and other courses. He is a true Blue Devil, holding a B.A., M.B.A., and J.D. from Duke University. While in law school, he held legal internships with pro sports teams. He later practiced law in Washington D.C. at Williams & Connolly, where he represented a variety of sports entities, and also co-taught a sports law class at UVA Law. Gabe is the co-author of Sports Law: Cases and Materials, and will direct Tulane's sports law program with Gary Roberts becoming Dean of Indiana University School of Law in Indianapolis.

We very much look forward to posts by dré and Gabe.

Tuesday, January 30, 2007
Sports Leagues as Courts of Appeals

The NFL this week fined the Saints' Reggie Bush $ 5000 for taunting the Bears' Brian Urlacher during Bush's touchdown catch-and-run in the NFC Championship game. Bush pointed towards Urlacher (running several yards behind him) at the end of the run, then did a front somersault into the end zone.

What is interest is that Bush did not draw a taunting penalty on the play. In other words, the game officials on the field either did not see it (unlikely, because it was pretty hard to miss, especially the somersault) or did not think it was worth a flag. Given that, I wonder how appropriate it is for the NFL to assess a fine.

Compare the usual (although not absolute) practice of courts of appeals. They generally will not address issues that were not raised and considered by the trial court. And they generally will defer to certain decisions that trial judges are deemed better able to make from their on-the-ground vantage point in a case (usually involving things such as witness credibility and the like).

League-imposed fines can be seen as an additional punishment, imposed from above (on appeal, if you like) and directed towards the individual player, a supplement to the in-game punishment assessed by the game officials. Not every penalty flag warrants a player fine. But perhaps the league should stay its hand in the opposite situation. If game officials did not believe an infraction occurred at the time, the leagues should defer to that initial determination and not impose a penalty or fine after-the-fact.

Some of this gets into whether we trust game officials on the ground to get things right and whether review from above, usually with the help of video, is proper and necessary. But that gets into what I think of instant replay, which is another, much longer post.

Monday, January 29, 2007
The One and Only Berlusconi...

Mr. Silvio Berlusconi, the former Italian Prime-Minister, eternal President of the great AC Milan and owner of Mediaset, is perhaps better known for his less than commendable antics and over the top comments. However, he brings to international headlines a truly interesting case, at a time when the Italian Competition Authority just released its very own view on the need to collectively sell Italian Calcio's broadcasting rights. Mediaset, who reportedly paid over USD$ 65 Million for the right to broadcast Calcio's highlights, claims this summer’s match-fixing scandal in Serie A devalued its TV rights, stating a strong loss in viewer interest in Serie A as a result of the relegation of top club Juventus and heavy punishments to AC Milan, Fiorentina and Lazio.

According to Il Corriere, Mediaset cites a 15 per cent drop in pay TV rights. After one of the main title contenders was relegated and three other major clubs heavily punished with the loss of points, the League lost at least some of its magnetism. And some 40% of all football viewers are fans of the proscribed clubs. Now Mediaset is taking legal action against the Italian football league. It seeks the reduction of the total price agreed upon for the right to broadcast the best moments of Italian soccer. The claim in itself, regardless of its merit, should be welcomed for what it entails in terms of mentality and is sure to make excellent reading.

Mediaset will try to establish the devaluation by resorting to available figures: (i) ticket sales in Serie A dropped 17.5%; (ii) Paying spectators in the first 13 rounds dropped 10%; (iii) Serie A Pay TV subscriptions dropped 14.8%; and (iv) Serie B Pay TV subscriptions increased by 52%, with Juve competing is the second tier this season. This should be enough to sustain the argument of a significant change in circumstances. Basically, if (i) the circumstances that were taken into account upon the execution of the contract have been subsequently and significantly altered and both parties could not have foreseen it; if (ii) the change brings significant economic imbalance to the contract; and if (iii) the change cannot be deemed inherent to the nature of the contract and the risks it entails, then the contract can be terminated or its price (as an element of the contract) reduced accordingly. Are we to assume that something of this sort might happen when contracting in the field of sports? The assumptions the parties took into account when agreeing upon the price certainly included the likes of Juve in Serie A and Fiorentina and AC Milan vying for a Champions League spot. Those assumptions are no longer valid. And match-fixing can hardly be deemed an inherent risk of any sporting activity.

This brings us to the Mediaset’s second prospective argument: was the League negligent in its capacity as regulator of professional soccer in Italy? The regrettable state of affairs in Calcio’s backstage had been mooted for years and one gets the feeling it was just a matter of time before the bubble of corruption burst. The League will certainly argue that it is not responsible for the actions of clubs, underlining the disappointing behavior adopted by club’s managers in their undertakings towards success. While it may be tempting to let the League off, the fact remains that little had been done to prevent and punish match-fixing. And the League will find it very hard to shake-off its duty to supervise the legality of its clubs’ deals. However, Mediaset is not likely to choose the path of negligence. Mr. Berlusconi would be falling into a trap. While the claim of negligence might further reduce the price he’s paying for the highlights, it will no doubt prove very costly in terms of personal image. After all, the owner of Mediaset would be surging against the President of AC Milan: the one and only Mr. Berslusconi...

Saturday, January 27, 2007
NHL Players Approve Independent Investigation of Saskin's Hiring

On Thursday this week, a majority of the 30 NHLPA-player representatives approved an independent investigation into the hiring of executive director Ted Saskin. Back in June, 2005, the union accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that former executive director Bob Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Goodenow was dismissed and, that same day, Saskin was hired as executive director.

Last October, I discussed the lawsuit filed against the NHLPA by a large dissident group of players alleging that "Saskin was never properly nominated for the position by the executive board." That lawsuit was dismissed this week by a federal court in Illinois for lack of jurisdiction. The judge agreed with the NHLPA that Ontario was the proper situs for the suit. Three days later, the players approved the investigation. Mathieu Schneider, a Detroit Red Wings defenseman and interim NHLPA executive committee member, said, "The purpose of the investigation is to clear the air, produce clarity on these questions and fortify a strong unified union."

Schneider would make a good politician some day. But in all sincerity, Schneider is absolutely right. An independent investigation makes perfect sense here because there is such a large dissident group of players. The last thing the players need is dissension among themselves. Also, an investigation is more efficient and cost-effective than a long drawn out discovery process tied up in court. Furthermore, the players don't need to convince a judge or jury whether Saskin should be removed or not; the players just need to convince themselves.

There appears to be some unanswered questions about exactly what information was disclosed to the player representative executive board members regarding the salary cap and the hiring of Saskin, and whether the players were fully informed in order to make proper decisions. The investigation will probably not provide all the answers. But the results of the investigation will either strengthen or weaken the dissident players' case and lead to a speedier resolution of this dispute, which serves the best interest of all the players and Saskin as well.

Friday, January 26, 2007
Introducing The Situationist

Dear Friends & Readers:

I wanted to let you know that I am the co-creator of another blog, The Situationist, which was just made live today. The other co-creator is Harvard Law School professor Jon Hanson. The Situationist is part of the Project on Law and Mind Sciences at Harvard Law School, which Jon and I are also creating, and will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Some prominent social psychologists have already agreed to contribute, including, for example, Philip Zimbardo, perhaps best known for his "Stanford Prison Experiment." Posts will address current events and law and policy debates, informed by what social scientists are discovering about human behavior. Our first posts include:
I'll still be blogging regularly at Sports Law Blog, but will discussing many other topics at The Situationist. The two websites are connected more than they may seem. In fact, I will be examining sports from time-to-time on The Situationist and Jon and I intend to write a book on sports from a situationist perspective. I hope you give The Situationist a look and would welcome any feedback or suggestions.

Wednesday, January 24, 2007
Upcoming Symposium at Ripon College: Ethics in Sports

On February 1st and 2nd, the Ethical Leadership Program at Ripon College in Wisconsin is sponsoring a symposium featuring some very interesting and provocative panelists and keynote speakers, including Bud Selig and Myles Brand. Check out the program for the event.

Tuesday, January 23, 2007
Tank Johnson Will Join the Bears in Miami

The Chicago Tribune just reported tonight that Terry "Tank" Johnson, defensive lineman for the SuperBowl bound Chicago Bears, has been cleared to travel to Miami with no restrictions. Tank had been under house arrest after police raided his home in the northern suburb of Gurnee, allegedly finding a number of handguns and assault rifles, for which Tank was not licensed (there are other reports that Tank was licensed in Arizona, but not in Illinois). Cook County prosecutors found this latest offense to be in violation of his probation that he received in November 2005 for an unlawful gun possession charge.

Johnson had been under house arrest, but allowed to go to work (Lake Forest for practice; Soldier Field for games), and would need special permission to leave the state, which he just received.

In other news, Johnson has not been charged in connection with the shooting death of his bodyguard/friend Willie Posey on December 16 while Johnson was with him at the River North club, Ice Bar.

As a Bears fan, I know that Tank is an essential part of the Bears D, especially in light of the losses of Mike Brown and Tommie Harris to injuries. As a lawyer, Tank seems to have complied with the conditions of his house arrest, but I hope that justice was blind here.

My main concern is that there are "no restrictions" on Tank while in Miami. Certainly there would seem to be a case here to restrict Tank to practice and the game as he is restricted while in Chicago. Any criminal lawyers with some insight here?

Beckham just one of many advances

Following up on my post of January 18, click here for a break-down of some of the reasons why the future is bright for the MLS. Beckham was just one of many significant developments.

Monday, January 22, 2007
Andre Waters and Concussion Liability for NFL Teams

Last week, the New York Times featured a troubling story about an expert's conclusion that former NFL Player Andre Waters' suicide may have been the result, at least in part, of concussions sustained during his football career.

While I hate to sound like a league defender, I wish the information on which this story was based had come from different sources...

The expert cited in the story is Bennet Omalu. According to the Times,
The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.
This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.

The Times story also indicates that Dr. Omalu's investigation was initiated after prodding by former Harvard football player and professional wrestler Chris Nowinski, author of a book called Head Games: Football's Concussion Crisis, as well as this myspace page and this fan page.

This is not to say that Dr. Omalu's conclusions are not based on some interesting developing science linking brain injury and depression. But it looks to me like this is a quasi-professional expert witness whose credentials have been a bit over-hyped by the Times. Moreover, while Nowinski may mean well, he does have a bit of a financial interest (in selling books) that would be served by both this NYT story and allegations that a former player's suicide (already a scandalous matter) resulted from, guess what, the very thing he's writing about. It's also fair to say that the credibility of a professional wrestler is, well, not exactly unimpeachable.

In any event, should Dr. Omalu's concerns be substantiated, the legal issues posed will be intriguing. What liability, if any, would attach to a team, or a team physician, for negligence or other tortious conduct leading to suicide? At one point in time, suicide was considered to be a superseding intervening act that severed the chain of proximate causation between "wrongful act" and "unfortunate result". The modern trend, however, allows suits against those who increase the risk of suicide, fail to prevent suicide or detect suicidal tendencies where suicide was a foreseeable outcome. Typically, these defendants are manufacturers of brain-altering medication or psychologists, psychiatrists and other therapists.

But why not a team, a league, or a team physician? If new science demonstrates a connection betweend depression and mild brain trauma, a team physician (now typically labeled an "independent contractor" to insulate the team from liability) who clears the player to return to play might bear some liability exposure. As one leading scholar explains:
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.
Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).

Is it fair to say that Waters would be barred by assumption of risk or other "limited duty" or "no duty" rules applicable in professional sports? As one psychology blogger notes,
Waters seemed to recognize the risks of his position. “Playing strong safety in the NFL, it’s either kill or be killed like ‘Survivor,’” Waters said.
For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.

A New Dawn in F1

Formula 1 (F1) seems to have at long last found its feet in America. Not only has Indianapolis regained its place as a legendary F1 venue but Scott Speed scored a first valuable point for the Scuderia Toro Rosso - incidentally, Scott's performance may not be enough to secure him a driving seat for 2007. Meanwhile, the European Commission (Commission) has finally put an end to its investigation into the Formula One and other four-wheel motor sports. And it may change the face of the sport as we know it. In the late 90's, the Commission's attention was drawn to the regulatory and anti-trust issues regarding the governance of F1, centered on the role of the FIA.
The days of F1 as the playground of Bernie Ecclestone and the FIA may not be over just yet, but the repercussions of this long investigation represent a new dawn. We have to go back to 1994 to understand the sort of stranglehold Mr. Ecclestone had on the sport. Back then, F1 was directly run by the FIA (the sport's regulating body), FOA (which held the commercial rights to F1) and ISC (which had acquired F1's broadcasting rights for subsequent resale). The link between all three entities was Bernie Ecclestone, whether as a director, owner or founder. Throughout the whole process, the Commission's concerns revolved around four main issues:
(i) The need to guarantee that the regulating functions fall upon a body with no commercial stake in the sport, in order to avoid any conflict of interest between the ones who partake in it and the ones who lay down the rules;
(ii) The need to ensure that the agreements entered into by FIA, FOA and the teams, circuit owners and TV networks do not limit the ability of other undertakings to organize, participate and broadcast F1 events. Moreover, the Commission displayed concerns over the restrictive effects of such agreements on the inception and existence of rivaling competitions, which were not allowed to race in F1 circuits, to enter F1 teams or to be broadcast on channels that covered F1 races;
(iii) The need to ensure that FIA shares the Intellectual and Industrial Property rights arising from the competition with teams and other intervening parties; and
(iv) The need to limit exclusive broadcasting to 5 or 3 years, as opposed to the 10 years which were generally agreed upon.
While the inquiry lasted, SLEC (owned by the Ecclestone family along with three banks) became F1's major player. The Commission is now satisfied that FIA currently limits its capacity to regulatory functions which will allow the creation of potential inter and intra-brand competition between Formula One and similar races and series. Furthermore (...) broadcasters in the various countries will be invited to tender for the TV rights on the expiry of the current (and any future) contracts. (...) The parties have also reduced the length of free to air broadcasting contracts to a maximum three years (except for contracts where specific investments justify a length of up to five years).
F1, albeit a global sport, is structured in a very "European way". Utility purposes are still coupled with profitability goals, which is odd in a sport that is not seen as playing a relevant cultural or social role - if any sport should be "downplayed" as simple business, F1 is it. Is the separation of regulatory and commercial interests truly needed? Or should we just accept that the two go hand in hand? The professional leagues in America are the ultimate examples of this. There is no better motivation than the suggestion of money. But in Europe other considerations come to play with unwarranted strength. So it won't be a surprise if less and less European circuits feature in the list of F1 races in the future. It seems we are the only ones who snub the driving force behind all things in modern days...

Sunday, January 21, 2007
NBA Activates its "Security Forces" to Prohibit Players from Frequenting Nightclubs

According to Mitch Lawrence of the New York Daily News, the NBA has "ordered its security forces" to come up with a list of nightclubs that should be made off-limits to players:
In the wake of the Broncos' Darrent Williams' murder in Denver, and other shootings in that city involving pro athletes, the NBA this past week ordered its security forces in all 29 cities to come up with a list of clubs and other night spots that should be made off-limits to players. Once the clubs are identified, with the help of local law enforcement, the league will send a directive to teams mandating that players avoid those spots or be subject to a substantial fine.
Setting aside, for a moment, the dubious merits of this policy, it does not appear to enjoy the benefits of collective bargaining. The closest textual support it may obtain from the NBA-NPA collective bargaining agreement derives from Article VI, Section 11, which delineates "league investigations" into player behavior:
Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.
I suppose the NBA could characterize the policy as reflecting a broader and extended league investigation into player behavior, and that such an investigation has been contemplated by the respective parties to the CBA. There are several other sections from Article VI that might also lend the NBA textual support, but none appear sufficiently relevant. And without collectively-bargained support, it, like any non-collectively-bargained working condition, would be subject to antitrust review--and as Joe Rosen and I detail in our Case Western Reserve Law Review article, antitrust law is not especially tolerant of unilaterally-imposed league prohibitions on working conditions, particularly given the existence of the labor exemption, which is premised on the belief that employees are better off negotiating together than individually, particularly when negotiating wages, hours, and working conditions. Also expect a possible objection from NBPA head Billy Hunter, who might, on behalf of the NBPA, file an unfair labor practice charge with the NLRB, particularly if this nightclub prohibition--which, according to Lawrence, will enjoy police assistance--constitutes "spying on employees."

As to the merits of the policy, I suspect it will strike most players, fans, and media as patently paternalistic, even more so than the dress code (and this is a league, after-all, featuring a commissioner who calls NBA players "these kids"). While the NBA understandably has a vested interest in seeing its players represent their teams and league in a law-abiding way--and to do so at all times--going to a night club isn't against the law (although players obviously have to be 21 or older to drink there). It's an activity that some of the players, who are grown men, like to do, just like other adults like to do.

And if the NBA's sole concern is one based on a safety analysis of players at nightclubs, then shouldn't the league also prohibit them from drinking alcohol or eating fattening foods? How about if those same players travel back home to where they grew up--some of them are from some pretty bad neighborhoods, should those neighborhoods be put off-limits, too?

Update: Skip Oliva over at the Voluntary Trade Blog checks in with a thoughtful response to this post:
Even if Stern’s idea has merit, why does it have to be imposed by the league office on all 29 teams? It’s better to leave this type of player conduct issue to the individual clubs. Stern’s centralism actually makes it more difficult for individual clubs–particularly coaches, who have far less power on most teams than star players–to maintain their own discipline. Paternalism reduces the incentive for individuals to take greater responsibility for their own actions.

McCann notes how arbitrary the nightclub prohibition is; will players also be prevented from drinking or returning home to “bad neighborhoods” in the name of protecting the league’s image? Stern will certainly grab as much authority as he can before his media allies turn on him or, more likely, the lawyers get involved.

Update 2: David Wilson over at Sports On My Mind has a substantive analysis of this topic.

Upcoming UVA Law Symposium on Sports and Entertainment Law

On Friday, February 2, the Virginia Sports and Entertainment Law Journal and Virgina Continuing Legal Education will be hosting the first ever Virginia Sports and Entertainment Law Symposium. I am excited to be a part of it, as it will feature an engaging mix of practical and theoretical topics, as well as a dynamic array of speakers. The symposium will be held at the University of Virginia School of Law in Charlottesville. Here is the schedule:


8:00 Registration

8:30 Introductory Remarks

8:45 Breaking into Sports and Entertainment Law: A Practical Primer
A panel of experienced practitioners will discuss the strategies commonly used to competently begin representation of sports and entertainment clients. The panel will provide guidance in how to gain the substantive expertise in the economics, business models, and basic legal issues needed to engage potential clients. This panel is for beginning practitioners but can be a refresher for experienced sports and entertainment lawyers as well.
Kirk T. Schroder
Other panelists to be determined

9:45 Negotiating Sports and Entertainment Property Rights in the Digital Age
The channels of delivery for sports and entertainment content are rapidly expanding with the advent of new digital media and the convergence of traditional delivery methods. A lawyer negotiating property rights fees must assess the value of and protections for the product, as well as regulatory concerns in each instance of discrete transfer of rights. With the advent of visual or audio placement to cell phones, YouTube and similar web sites, video, iPODs, socially networking web sites, video games, satellite radio, and scores more of varied media, the lawyer/agent’s role has expanded exponentially. In this session the panel will provide an essential analysis of how to deal with the ever-changing landscape of this topic.
Moderator: Glen Robinson
Panelists: George Kliavkoff, Byron Marchant, Frank Golding, Philip Hochberg

11:00 Break

11:15 The Fundamentals of Representation in Film and Television Productions
In order to meet the demand from many new media of delivery of entertainment content, there has been a major increase in production activity throughout the world. Many states and foreign countries are actively competing to attract productions to their areas. This panel will focus on identifying the primary roles and responsibilities of the attorney in assisting his or her client — whether the client is an actor, director, writer, or studio production crew — and instructing the attorney on the basic elements of movie and television production. Topics will include a review of typical issues involved in the development, financing, production, and distribution of film and television content.
Moderator: Kirk T. Schroder
Panelists: Bennett Fidlow, Don Mandrik, Endi Piper, Michael Steger

12:30 Lunch Recess

1:30 The Fundamentals of Representation in the Music and Sound Recording Industries
Technology is far outpacing the legal and business issues in today’s music and sound recording industries. More and more people each day are receiving music and sound entertainment through a variety of innovative means of distribution to the consumer. This panel will discuss the basic elements involved in representing recording artists, musicians, and music companies, and contrast those elements with the various legal and business challenges facing the music industry as a result of certain new technologies.
Moderator: Kirk T. Schroder
Panelists: Jeff Cohen, Jamerah Dudley, Philip Goodpasture, Elva Holland

1:30 Too Young or Too Old to Play? The Legal Issues Surrounding Age Limitations in Professional Sports
Most professional sports impose age and/or educational limits on their incoming athletes. Not only do these criteria change on a regular basis, but they continue to be challenged in the courts. Constitutional, antitrust, and labor issues dominate this ongoing controversy. The members of this esteemed panel have been at the forefront of these issues, and their commentary will be candid, insightful, and of immense value in planning for the future.
Moderator: Michael McCann
Panelists: Philip Evans, J. Gordon Hylton, Rick Karcher, Kristi Schoepfer

2:45 Break

3:00 The Basics of Representing Professional Athletes
This superb panel will discuss the key elements to consider when representing professional athletes (or athletes hoping to become professional). The panel will discuss playing and marketing contract negotiations in individual and team sports, client fee arrangements, breach of contract (by the player or the team), tortious interference from other prospective lawyers or agents, labor issues, and ethical issues that face any attorney in this field.
Moderator: Kimberly Haynes
Panelists: Donald Dell, Kimberly Holland, Ryan Rodenberg, Larry Woodward


Jeff Cohen, Partner, Miller, White, Zelano & Branigan
Donald Dell (UVA Law, 1964), Senior Vice President, SFX Tennis; Founder of ProServ; Co-Founder, Association of Tennis Professionals; Legendary figure in sports marketing and representation
Jamerah Dudley, Co-Owner, National Artists League
Philip Evans (UVA Law, 1988), President, National Basketball Development League (NBDL)
Bennett Fidlow, Partner, Schroder Fidlow, PLC
Frank Golding (UVA Law, 1993), Assistant General Counsel, ESPN
Philip Goodpasture (UVA Law, 1985), Partner, Williams Mullen
Kimberly Haynes, Kim Haynes Law
J. Gordon Hylton (UVA Law, 1977), Professor, Marquette University Law School
Philip Hochberg, Law Offices of Philip R. Hochberg
Elva Holland (UVA Law, 1982), Video Producer and Entertainment Lawyer
Kimberly Holland, CEP, Icon Management
Rick Karcher, Professor, Florida Coastal School of Law
George Kliavkoff (UVA Law, 1988), Chief Digital Officer, NBC Universal
Don Mandrik, Associate, Arnall Golden Gregory
Byron Marchant (UVA Law, 1987), Executive Vice President and General Counsel, BET
Michael McCann (UVA Law, 2002), Professor, Mississippi College School of Law
Endi Piper (UVA Law, 1998), Director of Business and Legal Affairs, TV One, LLC
Michael Steger (UVA Law, 1993), Law Offices of Michael Steger
Glen Robinson, Professor, University of Virginia School of Law
Ryan Rodenberg, Associate General Counsel, Octagon
Kristi Schoepfer, Professor, Winthrop University
Kirk T. Schroder, Partner, Schroder Fidlow, PLC
Larry Woodward, Partner, Shuttleworth, Ruloff, Giordano & Swain

CO-DIRECTORS: Carnell L. Cherry, Robby Forbes, Kirk T. Schroder, and Sarah Wigfall

Special thanks to Robby Forbes and Jenny Luetkemeyer, Editor-in-Chief and Managing Editor, respectively, of the Virginia Sports and Entertainment Law Journal, for their excellent organization and planning of this event.

For more information on the Symposium, including prices on attending, securing lodging, and obtaining CLE credit, please lick here.

Friday, January 19, 2007
Gary Roberts named Dean of Indiana University School of Law

Congratulations to Gary Roberts, Deputy Dean of Tulane Law School and Director of the Tulane Sports Law Program, on being named Dean of Indiana University School of Law in Indianapolis. Gary, who co-authors a leading sports law case book with Harvard Law School professor Paul Weiler, has extensive experience in sports law, including serving as President of the Sports Lawyers Association from 1995 to 1997. It appears that he will continue to engage in sports law, as his new school's Executive Vice Chancellor and Dean of the Faculties, Uday Sukhatme, says, "Sports law will continue to be a focus of Roberts' scholarly work at IUPUI, and this is most appropriate given the strong sports presence in Indianapolis."

Good luck to Gary on what is undoubtedly an exciting new experience. Also good luck to Gabe Feldman, who will be guest blogging here later this month and who will now be directing Tulane's excellent Sports Law Program.

Sports Over Law: Motion to Delay Trial to Accommodate Saints Fans

If you are a lawyer and a sports fan, you can certainly understand the following motion by defense counsel in Fay Thibodeaux Danos et al., v. Avondale Industries, Inc. et al., a case before a civil district court in Louisiana:
[The defendants] move to continue trial of this matter, which is currently scheduled to begin on January 22, 2007, by two days. Thus Defendants request that trial begin on January 24, 2007.

As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game -- the first such game in the franchise's forty-year history -- against the Chicago Bears in Chicago, Illinois on January 21, 2007, at 2:30 p.m. In order to accommodate all fans, including the majority of the jury pool, the parties involved in this case, and the counsel involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of the trial be pushed back two days to January 24, 2007.

Counsel for the remaining defendants in this matter have been contacted, and none objects to this motion nor its requested relief. Numerous attempts have been made to contact Plaintiff's counsel by telephone and by e-mail, with no response from Plaintiffs' counsel.
Several attorneys at the New Orleans law firm Sher, Garner, Cahill, Richter, Klein & Hilbert, LL.C., authored the motion. Clearly, that's a firm where time devoted to sports watching (and perhaps also "celebrating" while doing so) is valued. Tough to complain about that.

Thursday, January 18, 2007
Living the Dream

I know the whole Beckham affair is "old news" by now. But what better topic is there for an European to write on an American Sports Law blog than the David Beckham $250M move from Real Madrid to the Los Angeles Galaxy? I think the issue is interesting for a number of reasons.
First and foremost, after the likes of Pelé, Beckenbauer and our very own Eusébio were lured to the NASL in the 70's, the MLS has finally made itself available to the games' truly big names. Although overexpansion is a well documented cause for the failure of the NASL, the hiring of older, high profile foreign players, has been highlighted as the defining motive for the fiasco. The effort to bring in foreign "stars" placed an excessive strain on the league's finances. And for all their stardom, these players failed to elevate the game to levels of financial sustainability in the United States. After the implementation of the Designated Player Rule last November, it was only a matter of time before something like this happened. Future prospects for the game are buoyant with increasing media coverage and greater deals being signed and a city like LA will make the business qualities of the Beckhams (Posh included) all the more attractive. At 32, Becks still has a couple of years left in him. And considering he has never played the game as well as he sells it, the Galaxy franchise is not being conned. It is actually getting excellent value for its money. As for the greater good of the League, one has to admit that with a sound college system feeding the main division, and on the basis of the consistent showings by the US National Team, the time is right for the inception of the Designated Player Rule. If the game is to be taken to the next level, Becks and Co. are just the ones to do it.
It will also be interesting to see how other MLS major stars react to Becks' arrival. On $900,000 per year, Landon Donovan, one of the most recognizable faces in the LA soccer scene, is certain to undertake a reassessment of his career. Sportsmen tend to relate their salary with their on-field performance and their potential to deliver the goods, past statistics, etc. Marketability is not nearly as rated by players as it is by managers when it comes to salary assessment. Beckham could be just as good as Pelé - which he is not - and the salary gap would still be virtually indefensible from a player's perspective. There is definite potential for the clash of egos in future editions of the League.
Finally, the spotlight once again falls upon the exceptions to salary cap mechanisms which have featured prominently in past MLB, NBA, NFL and NHL negotiations. As a matter of principle, an exception undermines the goal of competitive balance which is purportedly pursued by a salary cap system, because it allows richer clubs the chance to exert their financial domination by acquiring the services of the most talented players. However, smart management and clever allocation of central contracts and high levels of revenue sharing should control the damage potentially arising from this specific exception. On this matter, the ability to swap a designated player for draft picks could be the catalyst that perpetuates differences between high revenue and low revenue teams. Let's see if restraining Designated Players to two per team will be enough.
One final note: Europeans would do well to look at the Beckham Exception (could this be the new name for the Designated Player Rule...?). Salary Cap systems need to be flexible in order to accommodate labor and anti-trust considerations. Revenue sharing is the underlying element that facilitates cap systems in the American professional leagues. Revenue Sharing in Europe has only now started to come to life and is still incipient. The "Arnaut Report" (named after a Portuguese former Minister) insists that caps should be put in place in European Leagues, in order to curb the financial excesses of most of our clubs. Many arguments can be put forth here, but mine is one of principle: without effective revenue sharing, caps do not work and can even exacerbate the differences between high and low revenue clubs. Are we, Europeans, getting ahead of ourselves?

Sports Judge for your Fantasy Sports Disputes

Anyone who plays fantasy sports knows that "disputes" can sometimes emerge within leagues. You probably what I'm talking about. How about a dubious late-season trade that is so lopsided that it must entail some "off-field" payment, but your commissioner, for whatever reason, won't intercede? Or how about some strange scoring formulas? Or some sketchy roster modifications? Worse yet, you often have nowhere to go if your commissioner doesn't help.

Well now you have an recourse: you can hire Marc Edelman to be your sports judge. Marc, a lawyer and avid fantasy sports player, has started Sports Judge, a service designed to provide "an impartial and effective method for resolving disputes with other teams." Basically, players in dispute with one another or with their commissioner can pay $15 (or $100 for an entire season) and Marc will study the dispute and issue an opinion from the bench of the "Court of Fantasy Football."

Marc has several sample opinions posted, including Hermann's Head v. Commissioner of the Yale Football League (Index No. 00257, Sept. 1, 2006). It is truly a great read, involving a claim "seeking to prevent the Commissioner of Yale Football League from changing the league's active roster size from eight players to nine players by adding a third active running back." Following a thoughtful and well-reasoned opinion, Judge Edelman concludes:
While there are certainly virtues to maintaining a large size roster in fantasy football, it would be neither fair nor reasonable to change the league's roster size after the draft is conducted. If the Commissioner had wanted a nine-player roster, he should have suggested this change before the draft was held -- possibly before the draft order was selected. Not only does the possibility exist that the Commissioner would not have suggested this rule change had the computer granted his team a higher pick, but the possibility also exists that a team such as Hermann's Head might have drafted differently had the Commissioner's proposed rule change occurred prior to the draft. Therefore, for the aforementioned reasons, I rule in favor of Hermann's Head. The Yale Football League roster size shall remain unchanged at eight active players (and just two active running backs) for the 2006 season.
There's some more great stuff on Sports Judge.

Luís Cassiano Neves: Guest Blogger

We are thrilled to have Luís Cassiano Neves guest blog. Luís heads the Sports Law Practice Group at Miranda, Correia, Amendoeira & Associados, a Portuguese law firm based in Lisbon. He holds a law degree from Lisbon University Law School and an LL.M. in Sports Law from the Nottingham Law School. Luís also founded Lex Sportiva, a terrific blog devoted to international sports law. We look forward to his posts.

Wednesday, January 17, 2007
All Politics is Sports

Recurring theme warning: Once again, legal and political questions play out in sports. This is precisely why I write about sports--it actually gives a window into broader legal and political controversies.

The latest is the debate over § 502 of the 2005 USA PATRIOT ActRe-authorization, which alters the method of filling vacancies in the position of United States Attorneys. Ordinarily, the U.S. Attorney for a judicial district is appointed by the President with Senate confirmation. Under prior law, if a vacancy arose, the Attorney General appointed an interim successor who served until the President appointed (and the Senate confirmed) a permanent successor or for 120 days, whichever came first; if 120 days expired without a newly confirmed officer, the United States District Court for that district appointed an interim successor to serve until a replacement was confirmed. Section 502 changes this procedure by allowing the AG's interim appointee to serve "until the qualification" of a new U.S. Attorney appointed by the President and confirmed by Congress; no more 120-day limit. This means that the AG can appoint someone who can serve indefinitely, without the President ever having to put a new nominee before the now-Democratically controlled Senate.

This has drawn criticism from Senators Leahy, Feinstein, and Pryor, who have introduced legislation to restore the former process for filling vacancies. Last week, they sent a joint letter to Attorney General Alberto Gonzales, expressing concern that the White House and Department of Justice were pressuring/forcing U.S. Attorneys to resign (11 had resigned or been forced out since March 2006, including several in the past few days) to be replaced by potentially long-term fill-ins with no opportunity for the Senate to review their qualifications. Many of those forced out had investigated or were investigating corruption and misconduct by various GOP officials, raising a suspicion that the President is punishing local prosecutors. Gonzales will testify before the Senate Judiciary Committee tomorrow.

So, to quote Field of Dreams, what's it got to do with baseball?

One of the U.S. Attorneys who was asked/forced to resign today is Kevin V. Ryan, of the Northern District of California, where the BALCO steroids investigation is taking place. It was Ryan's office that convened a grand jury to investigate the leaks that provided the basis for the book Game of Shadows and to the contempt citation and prison sentences for authors Mark Fainaru-Wada and Lance Williams when they refused to reveal the source of the leaks (post here). It was Ryan's office that used subpoenas and search warrants to seize the records on old positive steroid tests on almost 100 Major League baseball players (posts here and here). And it was Ryan's office that has been investigating (although not moving forward on) perjury and other changes against Barry Bonds for his allegedly false grand-jury testimony in the BALCO case.

For this forum, I am agnostic as to the charges by Feinstein, et. al, that the firings are politically motivated or that the administration is punishing prosecutors for going after certain people. But if there is political motivation, I doubt it is in play here. I do not think Ryan's going after Barry Bonds and other baseball players for using steroids and/or lying about it is the sort of thing that would rouse Bush or Gonzales to punish a U.S. Attorney. Nor do I think they would get moved to act against Ryan for seeking to put journalists in jail for protecting sources.

Still, one of Bonds' lawyers was quoted as saying that the interim U.S. Attorney appointed by Gonzales would likely "throw in the towel" on the Bonds investigation and that a capable, ethical prosecutor will stop "tarnishing" the image of the office by chasing Bonds.

Tuesday, January 16, 2007
New Sports Law Scholarship

New this week:
Michael Conlin & Patrick M. Emerson, Discrimination in hiring versus retention and promotion: an empirical analysis of within-firm treatment of players in the NFL, 22 JOURNAL OF LAW ECONOMICS & ORGANIZATION 115 (2006)

Christopher T. Pickens, Comment, Of bookies and brokers: are sports futures gambling or investing, and does it even matter? 14 GEORGE MASON LAW REVIEW 227 (2006)

Erin A. Stanton, Student article, Home team advantage?: The taking of private property for sports stadiums, 9 NEW YORK CITY LAW REVIEW 93 (2005)
In addition, our frequent guest Chad McEvoy alerts me to the availability of his new co-authored article, which is not on Westlaw but can be downloaded free of charge from the embedded link:
Mark S. Nagel et al., Major Leage Baseball Anti-Trust Immunity: Examining the Legal and Financial Implications of Relocation Rules, 4 ENTERTAINMENT & SPORTS LAW JOURNAL (2006)

Monday, January 15, 2007
Is the Homeland Secure Enough for the 'Games'?

Below is the unedited version of an editorial I authored that was published by Crain's Chicago Business today. The edited version can be found here. The editorial came down in light of the USOC deciding that it would put forth a US bid (either LA or Chicago) to compete with Doha, Madrid, Istanbul, Rio, and Tokyo, on the international stage for the 2016 Games. The USOC's decision came just days after the Department of Homeland Security released its report of tactical interoperable communications ratings among and between American metropolitan areas. The report is interesting, both in terms of the ratings systems and the relative communications preparedness of different cities. A number of cities, including Chicago, have responded that Homeland Security gave no warning of what the findings would be and that encouragement of the efforts undertaken thus far by American cities is contrary to the written report.

Could Chicago’s Low Disaster Readiness Score Endanger the Chances for the 2016 Games?

Both the USOC and the IOC indicated that political stability to see the long preparation for an Olympic games through from bid acceptance to closing ceremony is an important criterion, and with Mayor Daley’s most serious challenger in Rep. Jackson dropping out of the next mayoral contest to enjoy the fruits of the new Democratic Congress, Chicago appears to be stronger on local government stability.

However, Homeland Security’s release of its “Tactical Interoperable Communications Scorecards Summary Report and Findings” on Wednesday may have added a new obstacle to Chicago’s bid as the USOC pits the Windy City’s bid against Los Angeles.

In light of the poor communication between first responders in the Twin Towers on 9/11 that may have led to the unnecessary death of many NYC firefighters unable to hear NYPD communications to evacuate, Homeland Security sought to assess the interoperable communications between various groups, namely police and fire. The aforementioned report grades urban/metropolitan areas on Governance, Standard Operating Procedures (SOPs), and Usage.

As Olympic officials are very familiar with security issues, from Munich to Atlanta, tactical interoperable communications may be a factor in choosing a location. The scores in the three categories range from early to advanced implementation.

The current score for Chicago: Governance (early implementation), SOPs (intermediate implementation), and Usage (intermediate implementation).

The current score for Los Angeles: Governance (established implementation), SOPs (advanced implementation), and Usage (advanced implementation).

The USOC should keep in mind that the Chicago Urban Area includes the City, Cook County, and 128 municipalities, while the Los Angeles/Long Beach Urban Area includes only 26 municipalities and LA County. Such a disparity in the amount of independent departments that require cooperative communication between each other surely explains part of the disparity between the communications scorecards, but the message from Homeland Security is clear: do better.

Friday, January 12, 2007
The Legal and Social Policy Implications of Bill Walker's Knee Injury

In last Saturday's game at Texas A&M, Kansas State freshman Bill Walker tore the anterior cruciate ligament in his left knee. The injury ends the 06-07 season for the dynamic 6-6 Walker, whose play had drawn comparisons to a young Vince Carter and who ESPN's Chad Ford ranked as the third-best NBA Draft prospect among college freshmen (right after Kevin Durant and Greg Oden).

An ACL tear is obviously a serious injury, particularly for a player whose game is based largely on explosiveness and quickness (Celtics fans have been dealing with the same worries for the last two days after Tony Allen's terrible tear of the ACL, medial meniscus, and lateral meniscus). Perhaps the best news for Walker is that he suffered a tear of his ACL in his right knee back in 2003, and was able to fully recover. But you never know what will happen after such a serious knee injury. Just ask Randy Livingston, who, back in 1993, tore his ACL before his first college practice and was never the same.

So what's the legal angle with Walker's injury? He was considering a challenge to the new NBA age limit (and thanks to Michael Ryan of Bearcat News for the link). The age limit, which is contained in Article X:I(b)(i) of the NBA-NBPA collective bargaining agreement, requires that an amateur American player be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season has passed from when he graduated from high school, or when he would have graduated from high school, and the NBA draft. The NBA has construed it to preclude Walker's eligibility in the 2007 NBA Draft, claiming that his high school class should be considered the class of 2008 (even though he has been a freshman at Kansas State this season). We discussed the specifics of this issue back last July, but basically the NBA contends that Walker--who prior to this injury projected as a first round pick in the 2007 NBA Draft, if eligible--did not complete his senior year on time last spring, while Walker has argued, correctly so in my opinion, that he would have graduated last spring, but for a transcript error made by academic administrators. Walker's argument was endorsed by the Ohio High School Athletic Association, whose expertise in his case was to assess Walker's credits and which obviously has no stake in whether Walker could turn pro.

I should stress that had Walker challenged the new rule, he would have challenged its application rather than its underlying legal merits. Granted, any time an application of a rule is challenged, its underlying legal merits can be called into question, but Walker's lawsuit probably would have been limited in scope. And in truth, it likely would have been redressed in mediation before any litigation commenced. Had Walker and counsel met with NBA officials, I suspect those officials would have ultimately acquiesced, since allowing Walker would not have in any way jeopardized the rule. It would have also, in my opinion, been the correct and fair move to make.

But Walker no longer seems poised to commence any lawsuit or negotiation. Such a serious injury alters his draft stock, at least for this year. He will probably spend the next eight months rehabbing his knee rather than dealing with a controversial lawsuit that may no longer be in his best interests.

We might also consider the social policy implications of Walker's plight. Here we have a 19-year-old man who has suffered a terrible injury that threatens what appears to be his most marketable and cherished skill: the ability to excel at basketball. Walker has presumably invested much of his life in honing that skill, probably at the expense of honing other talents and perhaps those skills that are scholastically-related. I have never met him, but like Arthur Agee and William Gates in the extraordinary documentary Hoop Dreams (1994), he has probably been "encouraged" by coaches and sneaker representatives and other self-interested (selfish?) actors to focus on basketball. The advice seemed to be working. But what happens if his basketball career is now over, or if he is no longer the next Vince Carter? Will those same people care about him? If not, who will?

That point lends itself to another point that is closer to the law: consider the human costs of an age-eligibility rule. If Walker had suffered the exact same injury while playing for an NBA team, he would likely have millions of guaranteed dollars coming his way under an existing contract. I know, money doesn't make one whole (despite what we tell our students in torts), but it certainly makes one better off--especially when one comes from financially-disadvantaged circumstances, as do many premier basketball players, and especially when one has invested so much of his learning time to a sport rather than to scholastics or other endeavors. I talked about these points in my posts Not Being Randy Livingston: The Jonathan Bender Story and The Power of Situation: Joakim Noah's Decision to Stay at Florida.

What will be Walker's life story if, because of this injury, he never earns a dime playing basketball? Should we, as sports fans, bear responsibility in making sure that he does alright, or is it okay that we will simply forget about him?

Wednesday, January 10, 2007
Ticketmaster Helps Chargers Secure Home Field Over Patriots (or at least Patriots' Fans)

I will be interviewed on tonight's CNBC's On the Money Program regarding the legality of restrictions imposed by the San Diego Chargers in their sale of tickets to New England Patriots fans for this Sunday's matchup between the two teams. Darren Rovell, who runs CNBC's Sports Biz, will be the interviewer. The show will air from 7 to 8 p.m. eastern standard time. I hope you get the chance to watch.

UPDATE 1/13/2007: CNBC has made the segment available at this link (there is a short advertisement, and then the 2 minute and 51 second video appears).

What is the Duty Owed by Sports Writers Voting for the Hall of Fame?

Excellent article by Tim Cowlishaw in yesterday's edition of the Dallas Morning News (Steroids Issue Still a Judgment Call). Cowlishaw points out that, less than 24 hours before the veteran baseball writers who vote for the Hall of Fame had buried Mark McGwire's first-ballot chances based on a suspicion of steroid use, the football writers and broadcasters who vote for the Associated Press All-Pro team embraced steroid use by putting San Diego Chargers linebacker Shawne Merriman (who actually missed 1/4 of the season because he tested positive) on the first team. While Cowlishaw candidly acknowledges that he wouldn't have voted for McGwire this year if he had had a vote, he also alluded to the problems associated with writers making voting decisions based upon speculation and conjecture:

"But there is a problem with writers taking the moral police role in making these determinations, because we have learned now that Major League Baseball is testing, that steroid users don't always look like steroid users. Even though he also appeared before Congress, Rafael Palmeiro was not on the list of highly suspected steroids users. He's not a big-muscle-type guy. Then, after wagging his finger defiantly, Palmeiro goes out and tests positive. And so have a lot of relief pitchers who also don't fit the Popeye mold... They guess a decisive "guilty" on McGwire based on the size of his forearms. But they say an emphatic "no chance" when confronted with Cal Ripken Jr.'s amazing consecutive-games streak of 2,632. Look, I am not suggesting anything about Ripken. Just pointing out that it is somehow completely off limits to guess how a player managed to push himself to play every day for more than 14 years, while it's a duty to guess how a player added 30 to 40 pounds of muscle during the course of a career."

Cowlishaw is absolutely right that it is all speculation. The fans and the media are definitely permitted to speculate and formulate opinions about whether McGwire took steroids, whether they affected his performance, and whether there should be an "asterisk in the record books." But should writers voting on post season awards, including the Hall of Fame, be held to a different or higher standard, or at a minimum, a standard that is clearly defined? [Maybe it is clearly defined, and I'm just not aware of it.] I mean we're talking about the Hall of Fame, not some all-time top ten best players list put together by some columnist or blogger. Hall of Fame voters, in essence, seem to be permitted to make their own subjective determinations that McGwire did in fact take something. And even further, that the something they think he took is probably on the banned substance list that was subsequently developed and tested for after McGwire played.

What do the voters want here? If McGwire came out today and said that he never took an illegal steroid or a substance that is currently on the banned substance list and tested for, would they be satisfied? Probably not. Is it that they are upset that McGwire isn't talking about it, and they want him to speak out to the public about the dangers of steroid use? I guess we'll never really know for sure, and the answer may be different depending upon which voter you ask. While there is an element of subjectiveness in determining who gets in the Hall anyways based upon performance, at least we can say that those determinations are based upon an analysis of objective-based performance statistics.

The purpose of this post is to inquire about the parameters or standards for determining who gets in the Hall and who doesn't, not to engage in the steroid debate. So what is the duty of a sports writer in voting for the Hall of Fame? I don't mean a duty in a strictly legal sense, but should it be objectively defined? Or is it sufficient for the writers to be permitted to take on a broad "moral police role" as Cowlishaw alluded to. If so, what are the perameters of that role? Presumably writers are permitted to make decisions that even go beyond mere speculation over steroid use, for example the use of illegal narcotics (and speculation of such use) or other acts of perceived misconduct on and off the field, unless that role is more narrowly defined of course. And if the standard is that broad, then why not just let the fans vote, similar to the way the fans vote for the all-star games? Because fans are just as qualified as the writers--maybe even more qualified--to make these types of decisions.

Tuesday, January 09, 2007
Title IX and Practice Squads

Over at the University of Chicago Law School Faculty Blog, Saul Levmore has this interesting post about proposals being made in several conferences and before the NCAA to ban the practice of women's basketball teams practicing against teams of male students. Opponents of the practice are suggesting that the practice violates Title IX, although Dean Levmore argues (correctly, I think) that it is hard to see what the Title IX problem is.

New Sports Law Scholarship

New this week:
Roger I. Abrams, Game-fixing in the National Game, 1 FLORIDA ENTERTAINMENT LAW REVIEW 1 (2006)

Zachary C. Bolitho, Note, When fantasy meets the courtroom: an examination of the intellectual property issues surrounding the burgeoning fantasy sports industry, 67 OHIO STATE LAW JOURNAL 911 (2006)

Monday, January 08, 2007
Illinois Appellate Court Clarifies "Contact Sports" Exception in Tort Law

In Karas v. Strevell, 2006 WL 34849138 (Ill.App. Dec. 29, 2006), an Illinois appellate court has offered an extensive (53-page) discussion of the state and scope of the so-called "contact sports" exception in tort law, which provides that co-participants in "contact sports" have no cause of action for injuries sustained due to the negligence of other participants (although "wanton and willful" or reckless misconduct remain actionable). This decision is of particular interest in that it interprets and expands upon Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975), a leading case on the tort liability of sports participants that has found its way into a number of sports law casebooks. I have written on the subject of co-participant liability in posts such as this one; Greg also covered the issue in posts like this one.

In the new case, Karas, the court confronted an action filed on behalf of a youth hockey player against two other players and the hosting league, among other defendants. The plaintiff was checked from behind in violation of a league rule by two opponents; at the time of the contact, plaintiff was near the boards and partially bent down; the collision caused plaintiff's head to strike the boards and resulted in serious injuries. Notably, on the back of the plaintiff's jersey appeared the word, "STOP," to reinforce the league's no-checking rule.

Against the players, plaintiff claimed recklessness and wanton and willful misconduct
Plaintiff does not allege a mere rules violation, but, given [his] vulnerable position and the "STOP" warnings on players' jerseys, that [the defendant players] went beyond conduct ordinarily accepted during the course of competition and into willful and wanton conduct. . . .

[T]he factual allegations above meet the requirements for pleading a cause of action based on willful and wanton condcut. Plaintiff alleged not only that [defendant players] broke the rules of hockey, but that they broke a rule with such special emphasis that players' jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding [defendants'] actions--they allegedly checked [plaintiff] when he was defenseless and in a position of acute vulnerability--that evince a conscious disregard for his safety.
The court further noted that full development of a factual record -- particularly with respect to the location of the puck at the time the defendants struck the plaintiff -- might justify a conclusion that defendants did not act in a wanton and willful manner.

There's a lot more good stuff in the opinion about co-participant liability on which I don't have room to comment here.

Against the league, plaintiff claimed negligence, arguing that the hockey league had failed to enforce aggressively its no-checking rule. The league argued that the contact sports exception should apply to its liability as well, and on that basis the trial court had dismissed those claims. On appeal, plaintiff argued that the league and other organizational defendants, not technically "participants" in the hockey game, owed him a duty of ordinary care actionable in negligence.

After wading through the morass of whether the contact sports exception is a "no duty" rule or an "assumption of risk" rule, and after noting the interplay between the two, the court opined that a participant in a sporting event is barred from suing a non-participant for mere negligence:

[T]he consent granted by each participant is not specific to the similarly situated participants, but instead to the risks associated with the game, regardless of whether the risks stem from co-participants or some other source. . . .

[B]ased on assumption of the risk principles, it stands to reason that the contact sports exception should be extended to protect the organizers and coaches from liability for negligence leading to player conduct that cannot otherwise form a basis for liability due to the contact sports exception.
I find the court's reasoning on this point rather odd. The court seems to complicate tort law considerations by talking about organizational "negligence leading to injuries caused by other parties' negligence," versus "negligence leading to injuries caused by others parties' recklessness." The court would bar a plaintiff's suit under the former theory, but allow it under the latter. In effect, the court is saying that a non-participant owes a general duty to avoid negligence, but not negligence leading to injuries caused by other-party negligence.


Negligence of 3rd parties can be addressed using ordinary tort principles of forseeability of intervening causes. Indeed, the court's approach seems to upend the normal concept of "foreseeability." The court allows actions against a league that negligently fails to enforce its rules where the failure to enforce those rules is a "but for" cause of a player's recklessly injuring another player. At the same time, the court would disallow a case where a league negligently fails to enforce its rules where that failure is the "but for" cause of a player's negligently injuring another player. What is odd about this is that, ordinarily, an intervening act is less foreseeable -- and therefore more likely to sever the chain of proximate cause -- when it is reckless or intentional, rather than simply negligent. The court's position makes it easier to recover for the less foreseeable intervention.

Some of this morass could be avoided if plaintiffs simply allege recklessness by the non-participant dfendants. Indeed, this plaintiff did so, but as the court justifiably concludes, the plaintiff's allegations with respect to the league did not amount to wanton or willful misconduct.