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Tuesday, March 22, 2016
Debating the Infield Fly Rule in Penn Law Review

In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule.

My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.

How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change

Image result for rutgers football
Last spring, Rutgers Law Review held its annual symposium on the legal issues surrounding professional and college football.  I gave the symposium's keynote address, entitled "How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change."

My keynote address is now available for download here, in article form.  The thrust of my speech is that if the antitrust plaintiffs ultimately prevail in the O'Bannon and Jenkins, it would enhance college football by leading to an allocation of resources that is more equitable for all stakeholder groups, including both the athletes and consumers.

Saturday, March 19, 2016
Video and getting a call "right"

I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (what players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means or that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive or what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.

Thursday, March 17, 2016
Professor Michael Carrier reviews Indentured: The Inside Story of the Rebellion against the NCAA

Rutgers Law Professor Michael Carrier has authored the following review of Joe Nocera and Ben Strauss new book, Indentured: The Inside Story of the Rebellion Against the NCAA.

* * *

The NCAA’s Exploitation of Student-Athletes
Michael A. Carrier*

“Amateurism.” “Student-athlete.” Such phrases conjure the finest ideals. Sound body, sound mind. Top-notch educations and athletic contests.
But what if it’s all a façade? What if the powers-that-be neglect the “student” and exploit the “athlete”? What if amateurism is an empty phrase the NCAA hides behind in its embrace of commercialism on the backs of athletes?
These are the questions at the heart of Joe Nocera and Ben Strauss’s gripping new book Indentured. The authors rip the lid off the NCAA’s celebrated morals, weaving a complex—and sad—story of student exploitation, extravagant riches, and blatant hypocrisy.
NCAA football and men’s basketball are big business. The NCAA generates $900 million in annual revenues while coaches make millions and ESPN pays billions. Schools flee long-standing conferences to receive more money. Gleaming new football facilities boast full-size indoor practice fields and lounges with every possible amenity.
But this big business does not come from nowhere. It comes from the athletes, who put in 50-hour workweeks. It comes from “voluntary” practices that are “mandatory in everything but their name.” It comes when coaches push severely-injured players back onto the field and don’t allow them to see a doctor.
Students suffer not just physically but also financially. More than 4 of 5 football athletes on full scholarship live below the poverty line. But they are not allowed to eat university-provided food at any time other than three specified times a day. And they must pay out of pocket to treat their injuries.
The disconnect between the NCAA’s riches and the athletes’ poverty would have been jarring enough. But the authors heap insult upon injury in their methodical discussion of the 400-page rulebook the NCAA uses as a hammer or, alternatively, ignores.
The NCAA allows athletes to maintain a 20-hour week during football road trips by magically capping time related to a game event (such as travel, play, and team meetings) at three hours. It ignored its own rules (pretending amendments passed that did not) in signing a promotional deal with Pontiac. And it looked the other way to protect the “untouchable” John Wooden-led UCLA basketball team when a prominent booster arranged for food, clothes, and housing and provided players with cars, stereos, airline tickets, and money.
On the other hand, when the NCAA decides to punish a school, it pulls out all the stops. A USC coach was punished on the basis of “completely made up” witness testimony, unethical communications, and conduct deemed by a court to be “malicious.” UNLV’s Jerry Tarkanian found himself a target, as the NCAA threatened witnesses and used “largely discredited” testimony because they “really want to get him.”
In addition to vendettas, the NCAA has applied its rules in ways that ignore common sense and decency. A Mississippi State football player was suspended for three years for unknowingly receiving a $12 discount at a thrift shop. A University of Oklahoma baseball player lost his eligibility for “profiting” from a book he wrote detailing his struggles with brain and stomach cancer. The University of Nebraska received two years’ probation for covering the costs of books recommended (rather than required) by professors.
Today, the shackles are—ever so slowly—being loosened. The most powerful conferences have guaranteed four-year scholarships, enacted a concussion protocol, and agreed to allow schools to pay a few extra thousand dollars covering the full cost of attendance. And while the Northwestern football players’ attempt to form a union was not successful, Congress continues to look over the NCAA’s shoulder and antitrust litigation seeking even greater player compensation than received in the O’Bannon trial (payment up to the cost of attendance) is underway.
Joe Nocera and Ben Strauss have done a masterful job exposing the contradictions at the heart of a commercial NCAA built on the backs of impoverished student athletes. Though appearing to be a radical title for a book about college athletes, readers will walk away from Indentured shaking their head at just how unfair the system is.
* Distinguished Professor at Rutgers Law School, author of Innovation for the 21st Century, co-author of IP and Antitrust treatise, and signer of Ninth Circuit brief on behalf of the O’Bannon plaintiffs.
Michael A. Carrier
Distinguished Professor
Rutgers Law School
217 North 5th Street   Camden, NJ 08102

Web  Book  Treatise  SSRN  @profmikecarrier

Tuesday, March 01, 2016
Drexel University: College Athletes’ Rights Conference

At Drexel University, the conference will begin Thursday, March 24 from 4-8 p.m., the evening before the NCAA Division I men’s basketball regionals, at the National Constitution Center, a national stage for dialogue about constitutional rights.  Starting at 5:00pm, keynote addresses will be delivered by the New York Times’ Joe Nocera, who will speak about the new book he co-authored, “Indentured: The Inside Story of the Rebellion Against the NCAA”; and Harry Edwards, PhD, on college athletes’ rights as civil rights. At 6:30 p.m., a panel on college athletes’ rights for the 21st century will include Taylor Branch (Pulitzer prize winning author, The Shame of College Sports), Ramogi Huma (National College Players Association), Kain Colter (pro football player with the Los Angeles Rams and College Athletes Players Association), Ed O’Bannon (lead plaintiff in O’Bannon v. NCAA) and Billy Hawkins (professor, author of The New Plantation), moderated by ESPN’s Kevin Blackistone.

The second day of the conference, Friday, March 25, from 8:30 a.m. – 5:30 p.m., will be held at Drexel’s Gerri C. LeBow Hall. It will include an address by Sonny Vaccaro, the former marketing executive for Nike, Adidas and Reebok; and an interactive dialogue lead by Jeff Prudhomme, vice president and fellow of the Interactivity Foundation; as well as panel discussions on challenging power dynamics, college athlete activism (Grace Yan & Nicolaus Watanabe, University of Missouri & Ann Pegararo, Laurentian University), rethinking player representation models (Richard Southall, University of South Carolina; Michele Donnelly, Kent State, Ivan Soto, Arena Football League Players Association) and helping college athletes access their own voices (Eddie Comeaux, University of California-Riverside; Ellen J. Staurowsky, Drexel).

The final day of the conference, Saturday, March 26, from 8 a.m. – 1:30 p.m., also will take place at Gerri C. LeBow Hall. A debate on whether or not the NCAA should be afforded an antitrust exemption will feature Marc Edelman (law professor, City University of NY and sport business writer,; Donna Lopiano (Sport Management Resources), Joel Maxcy (Drexel Sport Economist) and Andrew Zimbalist (Smith College Sport Economist). The conference will close with a panel on college athletes, the NCAA and due process. Panelists include Matt Haverstick (Kleinbard LLC & plaintiff’s attorney in Corman v. NCAA); Richard Johnson (plaintiff’s attorney in Oliver v. NCAA), Steven Silver (McBreen & Kopko and co-founder, The Legal Blitz) and Ben Strauss (New York Times).

Here is a link to registration site. Finally, more information about the conference and a full schedule is available here.