Sports Law Blog
All things legal relating
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Friday, May 29, 2015
New paper on NCAA compliance and corporate law

I've posted my latest paper, "Institutional Control and Corporate Governance," inspired by the Penn State scandal, on SSRN:  Here's the abstract: 
In January, 2015, the NCAA agreed to restore Penn State’s football wins, vacated as part of sanctions imposed for the University’s handling of the Sandusky sex abuse scandal. This represented a curious end to one of the most attention-grabbing and unusual NCAA enforcement actions in history. In the summer of 2012, the NCAA had strong-armed Penn State into accepting draconian sanctions based on the conclusion that the University failed to exert proper “institutional control” over its athletics program as required by NCAA rules. The foundation for that conclusion was the Freeh Report, which faulted Penn State’s senior leaders and Board members for their role in failing to stop Sandusky’s abuse.
This paper steps back to consider an unexplored aspect of the Freeh Report. In describing the University Board’s obligations, and failings, the Freeh Report relied upon two Delaware business law cases on the fiduciary duties of corporate directors. The connection between corporate oversight and NCAA “institutional control” is intriguing, since fiduciary duties typically arise in absence of contract and the NCAA is a voluntary association arising from contract.
By exploring the parallels and divergence between Delaware fiduciary oversight obligations and the NCAA “institutional control” rule, important insights regarding the development of compliance and enforcement regimes can be gained. Delaware fiduciary law arises through vigorously contested, adversarial litigation. This gives clarity and nuance to its rules and standards, and provides direct implementation guidance on best practices to business firms. By comparison, the NCAA’s institutional control rule is rarely subject to clarity and the process for enforcement used by the Association is far from adversarial. Important lessons about the potential of private associations to engage in self-governance and the value of an adversarial approach to deriving oversight obligations can be gleaned.

Wednesday, May 27, 2015
Legal aftermath of FIFA corruption charges

In a new article for Sports Illustrated, I analyze the corruption charges filed against FIFA officials and how the defendants might wage a defense.

Tuesday, May 26, 2015
Off to Cooperstown

This week, I will be attending the 27th Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame. I will be presenting my empirical study of the infield fly rule, which continues to evolve with the benefit of some comments on previous presentations, particularly about how to understand changes in run expectancy.

Sunday, May 17, 2015
41st Annual Conference of the Sports Lawyers Association

The 41st Annual Conference of the Sports Lawyers Association (SLA) was held this past week in Baltimore and, once again, it was a phenomenal success. The leadership of the SLA, including President Glenn Wong (UMass) and the Conference Chair, our own Gabe Feldman (Tulane Law School), ensured that over 800 attendees had the opportunity to learn, laugh and network over three days.

For many, the highlight of the conference was a keynote address by former Supreme Court Justice John Paul Stevens. Justice Stevens, an amazingly spry and sharp 95 years young, regaled the group with stories about baseball’s antitrust exemption, noting where the court erred in relying on stare decisis in the noted “baseball trilogy cases.”

Among his most powerful statements, Justice Stevens' states, "it simply makes no sense to treat organized baseball differently from other professional sports under the antitrust laws." You can read his speech, in it's entirety, here.

Gabe Feldman (Tulane Law), Justice Stevens,
Matt Mitten (Marquette), Glenn Wong (UMass)

I attended my first SLA Conference in 1991 when my Tulane Law School professor Gary Roberts instructed me “if you want to break into this industry you MUST attend this conference.” What’s reasonably unique about this conference is the true cross-pollination between practitioners and law students at panels, cocktail receptions, and in the hallways. What was true in 1991 remains true in 2015: anyone who has been successful in this industry recognizes the value of mentoring and you'll often see experienced sports lawyers sharing insight and advice with law students throughout the hotel.

I would also be remiss if I didn’t mention the participation of two of our own—Ryan Rodenberg (Florida State) and Daniel Wallach (Becker-Poliakoff) who participated in a panel discussing sports gambling and daily fantasy sports. Both, as expected, shined. Another strong panel discussed the future of college athletics--with Andrew Schwarz, an expert specializing in antitrust and sport economics having a debate with Gary Roberts during the Q&A portion of the segment. [Which continued into the hallway for quite some enjoyable spectacle.]

All in all, the SLA Annual Conference continues to be one of, if not the, best gatherings of sports lawyers each year. Make plans now, as we'll be gathering in Los Angeles May 12 - 14, 2016.

Tuesday, May 12, 2015
Legal Strategy for Tom Brady and New England Patriots

Here's my strategy guide for on how Tom Brady and the New England Patriots can challenge their Deflategate punishments. I will also have an article in this week's magazine issue of Sports Illustrated on the NFL's punishment.

More catalyzed fans

Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.

Mike, Dan Markel, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.

Wednesday, May 06, 2015
Legal Analysis of the Wells Report on the Patriots and Tom Brady

The Wells Report on "Deflategate" has been published. Here's my take on it for Sports Illustrated, what it means for the New England Patriots and Tom Brady, and how they can defend themselves from the Report's allegations. Hope you can check it out.

Tuesday, May 05, 2015
Do the Yankees have to pay Alex Rodriguez for hitting his 660th Home Run?

Short answer: probably not. Here's my take for Sports Illustrated on the A-Rod-Yankees dispute.

Walk-off Infield Fly Rule

Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.

With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.

Monday, May 04, 2015
The Federalist Structure of Trademark Law Fosters Robust Public Debate

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the PrawfsBlawg.

In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech.  But does it?  In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.

Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation.  Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.
Read more »

Friday, May 01, 2015
The NCAA: What IS Their Mission?

If you visit the NCAA's homepage, the organization boldly declares "Student-athlete success on the field, in the classroom and in life is at the heart of our mission."

Let's evaluate that claim with two recent statements made by the NCAA:

1. In response to a recent wrongful death lawsuit brought by a college athlete, the NCAA stated "it has no legal duty to protect student-athletes." [Here is a terrific recap of this case and the NCAA's response by Dennis Dodd.] Quick history lesson, the NCAA was founded in 1906 to promote the safety of the college athlete.

2. In response to the academic scandal unfolding at UNC, the NCAA stated it did not have a "duty to ensure the quality of the education of student-athletes." So apparently, when NCAA executive director Walter Byers created the term "student-athlete" in the 1950s to ostensibly shield the NCAA from worker's compensation claims, the concept of "student" was merely an empty label.

In sum, the NCAA is declaring that their aforementioned lofty mission does not include any responsibility to protect either the STUDENT or the ATHLETE.