Sports Law Blog Information

It is with great excitement that I share the first draft of my newest law review article, "A Short Treatise on Amateurism and Antitrust Law: Why the NCAA's 'No Pay' Rules Violate Section One of the Sherman Act."

This article is intended to serve as roadmap for challenging NCAA rules that prevent student-athlete pay.  The article is currently under review by several law journals.  Reader feedback is both encouraged and appreciated.

Rick Reilly's column today, Selling Johnny Football, provides an interesting perspective on Johnny Manziel's trademark lawsuit filed in Texas against a man who was selling T-shirts that read, "Keep Calm and Johnny Football."  It was reported that Texas A&M's compliance office recently received a ruling from the NCAA that an athlete can keep earnings (a damages award) obtained in a lawsuit.  Why the NCAA thinks it must first give an athlete permission before he can sue someone for stealing his intangible property rights and keep the damages award if successful is beyond me.  Would an athlete also need the NCAA's permission to sue someone for stealing his wallet or computer?

But in any event, Reilly raises the point in his column that now that the NCAA has given its "blessing" for Manziel to enforce his legal rights against those profiting off his identity, he should go after the NCAA and Texas A&M now.   Reilly asks:  "How can the NCAA see the evil in some citizen cashing in unfairly on Manziel's name but not when it does it?  How can Texas A&M send out more than 60 cease-and-desist letters to people selling Manziel items, as it says it has, and not accept one itself?" 

Last Thursday marked the five year anniversary of the thirteen commissioners of Miami-Dade County approving a plan to spend $347 million in taxpayer money to build a new 37,000 seat retractable-roof ballpark for the Miami Marlins -- a decision that I have previously criticized on Sports Law Blog here.

In acknowledgement of this event, I wrote an article on Thursday for Forbes SportsMoney that posed the question of whether an empty Marlins Park will create backlash against sports stadium subsidies for other teams.

In the article, I noted the following:

The Marlins stadium deal is such an easy target because in no other case has the recipient of huge subsidies so brazenly turned around and slashed team payroll to lowest in the league.  Furthermore, the Marlins stadium agreement only required the team to pay nearly a third of the building costs, while it awarded Marlins ownership 100% of stadium-related revenues -- not exactly what sounds like an equal partnership.

On Sunday, Marlins owner Jeffrey Loria fired back -- taking out an advertisement in each of the major Miami newspapers -- defending both his ownership style and the Marlins Park deal itself.  Presumably, Loria's response was based in part based on my Thursday article in Forbes.

Among other things, Loria told the Miami-Dade community:

The ballpark issue has been repeatedly reported incorrectly and there are some very negative accusations being thrown around.  It ain't true folks.  Those who have attacked us are entitled to their own opinions, but not their own facts.  The majority of public funding came from hotel taxes, the burden of which is incurred by tourists who are visiting our city, NOT the resident taxpayers.  The Marlins organization also agreed to contribute $161.2 million toward the ballpark.

Nevertheless, Loria's letter is easy to rebut -- even based exclusively on the facts in 'his' advertisement.  For example, the fact that the ballpark was paid for with tourist taxes shouldn't matter because the tourist taxes could have just as easily been spent of public projects such as schools and hospitals, new public housing programs, or even as a way of maintaining the community's existing public works projects while lowering the community's overall tax base.

In addition, Loria's purported $161.2 million contributed toward the ballpark is not a mitigating factor because the ballpark deal allows Loria to keep all of the revenues from selling naming rights to the stadium -- a revenue stream that overnight reasonably could offset much, if not all, of the $161.2 million investment.  Moreover, even if Loria does not sell these naming rights himself, the value of this right will clearly be factored into the Marlins ultimate sale price -- further increasing the Marlins owner's return on investment.

I am not sure the purpose of Jeffrey Loria's recent advertisement, but I fully encourage continued dialogue on the topic.  While I believe his arguments with respect to the stadium are without merit, I at least commend him for keeping the conversation about sports stadium subsidies firmly in the public eye.

With due respect to the many great sport law and sports business conferences held each year -- and there are some excellent ones -- the best one is the MIT Sloan Sports Analytics Conference (March 1-2). I'm honored to be a panelist at this year's event; this is my fifth year in a row as a panelist and each year it gets better - a credit to the conference's organizers, Daryl Morey and Jessica Gelman. I'll be on the Beyond Reason: Sports Labor Negotiations panel on Saturday March 2.

The conference is sold out, but at the following link you can register to watch many of the panels on-line. I always gain a ton of insight at this conference, which this year features as panelists Adam Silver, Michael Lewis, Mark Cuban, Stan Kaster, among many others, and has an awesome set of panels.

If you aren't attending, the webcast is a must-watch if you're interested in our industry.

Many spectators were hurt in yesterday's Daytona race because of a collision. A high school sophomore took a video of the crash and fans screaming and trying to get help. NASCAR wanted the video taken off YouTube, which for a while removed it but then put it back up.

Do we have a legal right to see this video? I explore in a new column for Sports Illustrated | SI.com. Here's an excerpt:

But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected. 

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy. On the other hand, NASCAR might contend that because crashes are (unfortunately) not uncommon in NASCAR races, a crash should be considered a continuation of a copyright-protected NASCAR event. This is a difficult area of law and highlights how legal protection for "sports events" and "news events" may not always be the same.

To read the rest of the column, click here.  Here's the video:

My longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is below. Comments welcome.

 No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.

The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies. 

Fellow sports lawyers, the Sports Law Blog has been a leading site for delivering cutting edge commentary and insight in the field of sports law.  As this leading site celebrates its 10th Anniversary in November, with the support of our Editor-in-Chief Michael McCann, we decided it was time to expand our efforts to brand and promote the tremendous talents of our contributors.

A natural first step was to generate a Twitter handle and feed for ourselves.  Thus, today, we are happy to announce the launch of the official "The Sports Law Blog" Twitter feed -- @InsideSportsLaw.  The goal is to generate additional attention to both the information we post on our website, as well as promoting the industry's leaders in the field of sports law--our writers.

While the use of this Blog, the newly created Twitter account, and other related future efforts will evolve over time, we hope that our efforts to offer both insight and commentary on the world of sports law remain unparalleled.

On March 21, 2012, Illinois lawyer Chris Langone filed a lawsuit in the U.S. District Court for the Northern District of Illinois against Fan Duel and one of its purported winners, Patrick Kaiser.  The lawsuit seeks to recover the third-party losses of Fan Duel's contestants based on Illinois's version of the Statute of Anne -- a common law statute that sometimes allows third parties to recover unclaimed winnings from illegal gambling transactions.

The posture of this case resembles the 2006 case Humphrey v. Viacom, with two major differences: (1) case is brought in Illinois rather than New Jersey, and (2) the case is brought against a daily fantasy sports game rather than a traditional, full-season fantasy game.

Fan Duel has filed a motion to dismiss that argues, among other things, that its games should not fall under Illinois gambling losses recovery statute because its games involve predominantly skill.

This week, I have written several articles on this case and its implications over at Forbes.  For more on the specifics and the merits of the parties' respective arguments, please see the following three sources:

1.  Marc Edelman, Will New Lawsuit Help to Clarity the Legal Status of Daily Fantasy Sports, Forbes, Feb. 19, 2013.

2.  Marc Edelman, Did Comcast Invest in Fan Duel Too Soon, Forbes, Feb. 20, 2013.

3.  Marc Edelman, A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime, 3 Harvard Journal of Sports & Entertainment Law 1 (2011).

I will be at Northwestern University School of Law tomorrow (Thursday), presenting The Economics of the Infield Fly Rule to NU's Sports Law Society as part of Sports Law Society Week. The program runs from 12:10-1:20. Feel free to stop by if you are in Chicago.

Following up on our discussions of Indian mascots, this week's Slate Hang Up and Listen podcast includes a segment (starting at 34:10) on the controversy, featuring Dr. Ellen Staurowsky, a professor of sports management at Drexel University (Ellen also was kind enough to contribute an excellent chapter for my book on Duke lacrosse). It is a good conversation, touching on many of the issues of Indian self-concept and self-image that Alex mentions in his post.

Worth a listen.

The result is the following piece, titled "A Call to Action" where I advocate that it's time for Emmert to go; and since he's declared he won't resign, the NCAA Executive Committee needs to take action.  Feel free to lobby the members, who are listed here.

The surprising and controversial announcement that wrestling is being dropped from the core Olympic programme effective with the 2020 Summer Games made me think that we may have found a reason why it matters whether something is a sport or not: Whether something is a sport (as opposed to a game or a competition) should be a tiebreaking factor when choosing between two events. In other words, when the IOC is deciding between wrestling and, say, synchronized ballroom dancing, the former wins out because it is a sport and the other is not.

The following is by my colleague Alex Pearl; Alex is an enrolled member of the Chickasaw Nation of Oklahoma and writes and teaches on Indian Law.

The complete program for the March 8, 2013 sports law conference at the University of Virginia School of Law can be found here.  It is my understanding that CLE credits are pending.  Panels include the following:

- Ethical Issues for Sports Agents

- Legal and Practical Issues for Women in Sports and the Sports Law Industry

- Gambling and Corruption in Sports

- Penalties for Athletes

- Lockouts, Greed, and Collective Bargaining  

The Oscar Pistorius situation is truly tragic for many reasons, including the loss of a life.  The fallout has included a number of sponsors including Nike terminating their relationship with Pistorius, pulling ads or otherwise removing Pistorius from their advertising campaigns. 

The ability of a sponsor to take these actions usually depends on the specific language of a morals clause.  Some clauses will allow termination or other adverse actions if the athlete has been charged with a crime, regardless of whether there is ultimately a conviction.  Other clauses might allow such actions only upon conviction of a crime.  


This situation highlights the basic principle for contract drafting generally and morals clauses in particular -- in order to impose the proper penalties for a breach, specific language is often necessary to fit specific situations.  Nike's contract with Pistorius apparently allows for termination in the event of a criminal charge or even just becoming involved in a public scandal.  In an unfortunate situation such as this one, this type of broadly-worded morals clause gives the sponsoring company significant power in determining its response.

Last year we blogged about the Great Lakes Sports and Entertainment Law Academy, a summer program  started last year by Peter Carfagna and Craig Nard and affiliated with Case Western and Cleveland-Marshall Law Schools for law students interested in sports and entertainment law. The academy has a great deal to offer and will have courses again this year from May 14 to May 31. For more information, click here.

Dave Zirin wrote an article this week in The Nation entitled "Redskins: The Clock is Now Ticking on Changing the Name."  We have regularly debated the offensiveness of American Indian mascots at the Sports Law Blog, and once again, Washington Redskins owner Dan Snyder has been called upon to change the team moniker of our nation capital's NFL club.  Zirin's article was inspired by a symposium held in Washington D.C. at the Smithsonian's Museum of American Indian History decrying the use of all American Indian mascots.

According to Zirin:  "It’s an awkward fact of life in Washington, DC, that we are home to both the Smithsonian’s National Museum of the American Indian and the Washington Redskins. One attempts to preserve the Native American cultures that weren’t eradicated by conquest; the other is both a symbol and result of the same eradication. These two worlds collided this past week when the museum hosted a day-long symposium about Native American sports nicknames. In a packed auditorium, panelists and audience members took the local team to task, calling their name 'ugly,' 'offensive' and 'a racist slur.' Former Colorado Senator Ben Nighthorse Campbell, the only Native American senator in US history, said from the stage, 'If you want [your mascot] to be a savage—use your own picture.' Not one person either in the audience or the crowd defended the use of 'Redskin,' because, as one fan of the team said to me, 'it really is defending the indefensible.'"

While the NCAA has taken strong action against the use of offensive nicknames and imagery, will Dan Snyder, and other professional sports team owners (including the Braves, Indians, Chiefs, Blackhawks, etc.) finally heed the call for change and eliminate offensive and stereotyping monikers and mascots?

(H/T: The Big Lead)

He's my interview on Katie Couric, from Monday. I was the legal commentator for her show, which featured an interview with Sue Paterno. It was great to meet Katie and to be part of this show.

Last night, University of Kentucky star freshman Nerlens Noel injured his knee in his team's contest against the University of Florida.  While the extent of his injury has not been made public, and we all keep our fingers crossed (reports are torn ACL, out for the year), it reminds us of the patently unfair draft eligibility rules in the sport of basketball.  By virtually any account, Noel was one of the premier high school basketball players in the country, and should he have been inclined, an early lottery pick in the 2013 NBA draft.  Let's hope that opportunity is still within Noel's grasp.

As readers to this blog should know by now, the NBA and NBPA have agreed in their CBA that basketball players have to wait one year from the time their class graduates from high school to be eligible for the NBA draft.  The result is the infamous "One and Done" rule that forces players to attend college--or head overseas (Brandon Jennings)--before they can enter the NBA.  While I'll let others (and I mean you Michael McCann) make the age eligibility restraint of trade arguments, the courts have decided that current union members can impose limits on future members.  See Clarett v NFL among other cases.

Unfortunately, the NCAA does no favors to elite student athletes by capping the potential disability insurance policies that these players can obtain.  According to the NCAA's "Exceptional Student-Athlete Disability Insurance" (ESDI) guidelines, the cap on coverage in the sport of basketball is $5 million dollars for permanent disability insurance.  There are no provisions of loss of value insurance policies that would address an injury that lowers a players draft slot selection but doesn't make them permanently injured.  An 2013 NBA lottery pick will make multiples of that in their first guaranteed contract.  While we can hope Noel's injury is both minor and not a barrier to his NBA potential--and its financial implications--the NCAA, the NBA, and NBPA have not helped him in any way.

A year and a half ago, I wrote a law review article for the Harvard Journal of Sports & Entertainment Law entitled "Transitioning to the NBA: Advocating on Behalf of Student-Athletes for NBA & NCAA Rule Changes."  A copy of this article can be found here.  How many more times do we have to lament the "bad luck" of NCAA student-athletes without making any changes?  Let's hope that Noel's lack of choices after high school do not derail either his NBA career or the abundant riches it would bring.

Looking forward to being part of what should an excellent symposium next Friday at New York Law School -- great work by Brett Hirsch and David Soskin and many others in putting this together. 

I will be moderating the bankruptcy panel and will be sure to encourage discussion on the role of bankruptcy law in the sale of the Sacramento Kings.

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The New York Law School Sports Law Society and the Institute for Information Law and Policy

Frank Hawkins, Partner at Scalar Media Partners; Former SVP Business Affairs at the NFL 
David Mayer, Principal Counsel at ESPN, Inc.
Meredith Wolff, Associate Staff Attorney at NHL Enterprises, L.P.