Sports Law Blog Information

A recurring question in discussions of the future of football in light of safety concerns is whether, and how, you can have a "safer" tackling sport. Thoughts generally turn towards rugby--dre did a workshop at FIU in February and this came up during that conversation. Having just watched the Tokyo Sevens rugby tournament, I wonder if the answer is in there somewhere. Without question it is a tough, brutal, physical sport and in all likelihood players are suffering some head trauma, as well as other physical injuries. But rugby seems to involve more tackling and less "big hits" or high-speed/high-impact collisions. Players (especially off the ball) do not get the same running start or head of steam, so they are not moving as fast when the hit one another.

So am I correct as to nature of the hitting and tackling in rugby compared with football? And if so, is there a way to change the rules of football and the way it is played to make the hitting more like rugby? And would it work to preserve football or would it so fundamentally alter the game?

In recently suing a Miami clinic, Major League Baseball signaled a new legal strategy for combating steroids: sue those who allegedly sell to players on grounds the sellers are intentionally interfering with players' employment contracts. I wrote an article titled "Squeeze Play" in the April 1, 2013 issue of Sports Illustrated that examines this strategy.

Hope you can check it out on page 20 of the magazine.

The latest effort by the California legislature is Assembly Bill 475.  This Bill would require all public universities and colleges in California that offer full athletic scholarships and receive media and licensing revenues in excess of $20 million to provide each athlete $3,600 stipends and guarantee full-ride athletic scholarships for five years, instead of the year-to-year guarantee.  As of now, the only schools that meet these thresholds are USC and UCalifornia, Berkeley.

Of import is that this Bill directly conflicts with current NCAA rules regarding amateurism.  Any stipend will be defined as an "extra benefit" violating the NCAA's self-defined amateurism rules.  The $3,600 stipend, not coincidentally, is close to the average amount that the NCPA determined is the cost of attendance shortfall for student-athletes receiving a "full grant-in-aid" scholarship.  For more on this research, please see their study, conducted by Ramogi Huma and Dr. Ellen Staurowsky, entitled "The $6 Billion Heist: Robbing College Athletes Under the Guise of Amateurism."

Finally, from a strict legal standpoint, we may be heading for a showdown--does a state have the right to impose laws that supercede the NCAA's regulations?  I'd say yes.  Will the NCAA challenge this rule?  I'd say yes again.  The result, perhaps an expedited judicial hearing, and ruling on the merits, on the claim that the NCAA's rules impose an unreasonable restraint of trade under the antitrust laws.  Stay tuned.

From the Pepperdine Law Review: 

The Pepperdine Law Review is pleased to announce that we will be hosting a free, live webcast of our Sports Law Symposium next Friday, April 5th.  If you cannot join us in sunny Malibu, CA, please consider tuning in online!  You may add the webcast to your calendar here: http://t.co/3gkgDlUmMh.  Sports law experts Michael McCann, Gabe Feldman, Matt Mitten and ESPN's Roger Cossack are among our 22 speakers.  A full list of panelists is below.

mcwood@pepperdine.edu

New empirical findings by Anastasios Kaburakis and his research team on how consumers perceive NCAA licensed products in relation to athletes featured in them. Key finding: consumers associate video game representations with actual NCAA players & a good number of consumers mistakenly believe that players endorse (and are perhaps paid to be in) these games. These findings clearly connect to O'Bannon v. NCAA and more broadly to evolving conceptions of amateurism in college sports.

Can NFL teams legally ask college players about their sexual orientation? They clearly shouldn't, but legally it's a complicated issue involving states' anti-discrimination laws and federal labor law, as I write about in this week's issue of Sports Illustrated (March 25, 2013 issue). My article is titled "Loaded Question" and it's on page 16. Special thanks to the smartest lawyer around, Alan Milstein, for his insights.

Here's a brief excerpt:

But in Washington, D.C., where the NFLPA is based, and in 21 states, including those that are home to 13 NFL teams, it is unlawful for private employers to discriminate on the basis of sexual orientation. When local laws are taken into account, as many as 25 teams could be barred from asking prospective employees about sexual orientation. 

The jurisdiction with one of the toughest laws against such bias is New York, where the NFL is headquartered. The CBA, which amends the standard NFL player contract, stipulates that New York state law applies when federal law does not. In other words, a prospect who sued the league for discrimination could make a reasonable case.

Hope you have a chance to read the rest in this week's issue.

I was a guest on NPR's All Things Considered this past weekend to talk about my interview with Lance Armstrong at his home in Austin, Texas.  I'll have more to write about it later this spring.

I can't wait to fly to Malibu for this (and great work by Pepperdine Law Professor Maureen Weston in putting this together and Pepperdine Law Review symposium editor Michael Wood for all of his excellent work)

Friday, April 5, 2013
7:45-8:30am	Check-In & Continental Breakfast
8:30-8:45am	Introductions and Welcome: Margot Parmenter, Editor-in-Chief, Law Review Deanell Tacha, Dean, Pepperdine University School of Law
8:45-10:45am	Panel One: Institutional Control: A View From the Top Moderator: Roger Cossack, ESPN Legal Analyst & Pepperdine University School of Law Distinguished Visiting Professor  Panelists: Ken Starr, President, Baylor University Britt Banowsky, Commissioner, Conference USA Steve Potts, Athletic Director, Pepperdine University Dave Roberts, Vice President for Compliance, USC
10:45-11:00am	Morning Coffee Break
11:00-12:30pm	Panel Two: NCAA, Legal Exemptions, and Liability  Moderator: Maureen Weston, Professor of Law, Pepperdine University School of Law  Panelists: Daniel E. Lazaroff, Professor of Law and Director, Loyola Sports Law Institute at Loyola Law School Gabe Feldman, Associate Professor, Tulane Law School; Director, Tulane Sports Law Program; and Associate Provost for NCAA Compliance Jeffrey Standen, Professor, Willamette University Michael McCann, Professor of Law and Director of the Sports and Entertainment Law Institute, University of New Hampshire School of Law; Legal Analyst and Writer, Sports Illustrated
12:30-1:45pm	Luncheon in Cafeteria Address by Jeff Moorad, Founder, Moorad Sports Management
1:45-3:15pm	Panel Three: NCAA: Enforcement, Sanctions, and Relationship with Universities Moderator: Professor Ed Larson  Panelists: Matt Mitten, Professor of Law and Director, National Sports Law Institute, Marquette University Law School Rod Smith, Director of Sports Law & Professor of Law, Thomas Jefferson School of Law Brian Halloran, NCAA Perspective Britt Banowsky, Commissioner, Conference USA
3:15-3:30pm	Afternoon Coffee & Cookie Break
3:30-5:00pm	Panel Four: The Money: Broadcasting, Digital Media & What Drives the Machine Moderator: Roger Cossack, ESPN Legal Analyst & Pepperdine University School of Law Distinguished Visiting Professor  Panelists: Andrew Brandt, NFL Business Analyst, ESPN; Columnist for ESPN.com; Director, Moorad Center for Sports Law at Villanova Law School; and Co-Founder, The National Football Post  Brian Marler, Director, Houlihan Lokey Babette E. Boliek, Associate Professor of Law, Pepperdine University School of Law Mark Fainaru-Wada, Reporter, ESPN Investigations/Enterprise Unit
5:00pm	Concluding Remarks Maureen Weston & Margot Parmenter

Looks like an excellent event:

This event is open to the public and free.  To register, click here.

---

• CSEL Board
• Professor Peter Carfagna, Lecturer on Law, Harvard Law School

• Marc Edelman:  Associate Professor of Law, Barry University Dwayne O. Andreas School of Law; Fordham Univeristy (Moderator)
• Len Komoroski: CEO, Cleveland Cavaliers
• Jim Holzman: Founder & CEO, Ace Ticket Worldwide, Inc.*
• Jeff Miller: VP & Chief Security Officer, NFL
• Jon Oram: Partner, Proskauer Rose LLP - Sports Law Group

• Michael McCann: Director of Sports and Entertainment Law Institute & Professor of Law, University of New Hampshire School of Law; Legal Analyst & Writer, Sports Illustrated & SI.com (Moderator)
• Ed Durso: EVP of Administration, ESPN
• Brett Goodman: Senior Vice President, Business & Legal Affairs for NBC Sports Group
• Tom Ward: Partner, WilmerHale
• Ed Weiss: GC, Fenway Sports Group; NESN

• Patrick Rishe: Director, Sportsimpacts; Associate Professor of Economics, George Herbert Walker School of Business, Webster University; Contributor, Forbes Magazine (Moderator)*
• Mary K. Braza: Partner, Foley & Lardner - Sports Industry Team
• Anthony D'Imperio: EVP, IMG
• Lauren Fisher: GC, Vox Media/SBNation
• Lucia McKelvey: EVP, Top Rank, Inc.
• Scott Doyne: VP, Turner/NBA Digital

Later this week I'm off to Tempe for the 20th Annual NINE Spring Training Conference on the Historical and Sociological Impact of Baseball, sponsored by NINE: A Journal of Baseball History and Culture. I will be presenting The Economics of the Infield Fly Rule on a panel moderated by our own Ed Edmonds. And are some interesting-sounding papers covering economics, history, sociology, culture, and art as it relates to baseball.

I participated in this conference about eight years ago, when I first was writing about fan expression. It is always fun to engage with some non-legal academics (although this year there are at least a few other law-school types). Better still, there is a reason the conference is in Arizona--two afternoons are dedicated to "field research" at spring training games.

SPEAKERS:

Timothy D. Cedrone, Esq.
Paul Haberman, Esq.
David N. Weinraub, Esq.
Justin E. Klein, Esq.
Andy Main, Professional Fighter and Trainer

LOCATION: Seton Hall University School of Law Newark, NJ

DATE: Tuesday, March 26, 2013, 6:00 PM

MEMBER FEE: $15(Includes CLE Credits and Dinner)

No Fee Includes Dinner, & Program, No Cle Credits

LAW STUDENTS: No Fee Includes Dinner and Program No CLE credits

CLE Credits: NJ G: 1.2;  NY P T&N/T: 1.0; PA S: 1.0 ($4.00 check made payable to NJICLE)

DESCRIPTION: There are currently two areas of heated discussion in the sport of Mixed Martial Arts: the fair treatment of fighters and First Amendment protection for the exhibition of sporting events. The topic of fair treatment focuses on the relationship between labor law and how fighters are treated in their working environment. Another area of concern is First Amendment issues in regards to hosting Mixed Martial Arts contests, particularly in New York.

Fordham University’s Gabelli School of Business announced the creation of a new undergraduate program focusing on the sports business. Called the Sports Business Specialization, the program will provide students first-hand knowledge of the business of professional and amateur sports. As part of the business program, all students are required to take foundation courses in accounting, finance, marketing, management and communications before they are eligible to take the sports-specific business classes. Students will also be required to complete an independent studies component, which will include an internship.

The GEO Group, one of two nationally prominent private prison corporations in America has just signed an agreement with Florida Atlantic University to "name" the football stadium at FAU.  Understandably, this has caused an uproar from many on the faculty and in the student body at Florida Atlantic.  "The GEO Group Stadium" at Florida Atlantic University immediately conjures up images of the now retired "Enron Stadium" where the Houston Astros used to take the field, except that The GEO Group is undoubtedly more sinister and harmful to United States citizens than Enron ever was (a fact absolutely lost on FAU President Mary Jane Saunders until student and faculty protests erupted).

The GEO Group is a private prison company.  As I have written about extensively, private prison corporations essentially collect taxpayer funds from federal and state governments (a "per diem" or per bed fee) in order to house prisoners on behalf of these governments and do so with an immoral profit maximization motivation. Private prison companies profit on human misery.  Shareholders of  GEO Group stock expect the board of directors and executives to return handsome profits from imprisoning United States citizens (and increasingly illegal aliens).  The perversity in this arrangement, of course, is that in order to increase profits for shareholders, private prison companies, including the Corrections Corporation of America (the other prominent U.S. private prison company), seek to aggressively imprison more Americans by lobbying legislatures to increase sentencing laws, divine new laws/ways to imprison individuals, and even engage in drafting model legislation like SB 1070 (Arizona's "show me your papers" law) and three-strikes laws.  In "All Eyez on Me: America's War on Drugs and the Prison Industrial Complex," I describe the perverse incentives that motivate the private prison industry by examining the immorality attendant in leadership of private prison companies debating successful ways to increase profit by incarcerating more United States' citizens.

Private prison companies have flourished in recent years based upon the increasingly dubious claim that they provide prison services for less cost than do governmental agencies.  While numerous studies dispute this assertion, the bottom line economic transfer is that taxpayer funds are being funneled to private prison companies (and its executives and shareholders) without those companies providing any genuine public good or manufacture of product.  Indeed, recent reports indicate that private prison companies engage in gross human rights and constitutional violations, more egregious than government run prisons.

And now, FAU has signed an agreement to partner with The GEO Group allowing GEO to prominently appear on the facade of its' football stadium and increase its corporate branding.  FAU's President appears to have not engaged in any due diligence when signing the naming right, relying singularly upon the fact that the GEO Group Chair is a proud alumnus of FAU.  This is particularly egregious in Florida, where private prisons have attempted to seize on opportunities to stealthily motivate state legislators to sanction massive expansion of the private prison industry.  Students recently orchestrated a "sit-in" where President Saunders was forced to speak to the group, though she claims the naming agreement is a "done deal."  Whether students protests will lead to a repudiation of the agreement remains to be seen.  Sans repudiation, Florida Atlantic University may go down as one of the first American Universities to openly celebrate the incredibly perverse and immoral private prison industry and lobby.


(hat tip to Dave Zirin at The Nation)
cross posted on the Corporate Justice Blog

In an under-the-radar opinion issued last month, the Idaho Supreme Court allowed a fan injured by a foul ball at a minor league baseball game to proceed with a negligence suit against the franchise.  Specifically, the court refused to adopt what it called the "Baseball Rule," in which most courts have held that baseball teams are generally not legally liable to fans for injuries caused by foul balls hit into the stands, so long as they have provided protective netting for the most dangerous seats in the stadium (i.e., those immediately behind and around home plate).  Click here for Sports Law Blog's prior coverage of this topic.

The court's opinion - available here - indicates that the plaintiff, Bud Rountree, was hit by a ball while standing in the Class-A Boise Hawks' "Executive Club," apparently the only area in the stadium that is not covered by protective netting (Rountree ended up losing an eye as a result of the injury).  In light of the area of the stadium in which the injury occurred, along with the fact that the team went to greater than normal lengths to protect most of the stadium from foul balls (pictured), Rountree's case may be stronger case than that of the typical fan hit by a foul ball in unprotected seating.  Indeed, his attorneys apparently argued to the Idaho Supreme Court that while the so-called "Baseball Rule" may be justified in normal bleacher settings, it was not appropriate for multi-purpose areas of the ballpark (such as in-stadium, sit-down restaurant seating). 

Whether the opinion will have a broader impact on baseball teams outside of Idaho remains to be seen, but given the number of jurisdictions that have adopted the majority rule it is unlikely that this latest decision will have a significant impact nationwide.

"A few weeks ago, I discovered I had a new Twitter follower: Lance Armstrong. I thought it was a little odd because I don't cover cycling and the times I've written about Armstrong's legal issues I've often sharply criticized him. Nonetheless, I was intrigued. Soon we began corresponding privately and last week Armstrong invited me to his house in Austin for an interview."

To read today's teaser from CNNSI you can go here.  For the entire, groundbreaking story, you'll need to go purchase this week's Sports Illustrated.  Have no fear, you can purchase a digital version here.

Congratulations Mike on a tremendous job--both in getting Lance's attention and becoming a relevant contributor to the development of this international strory.  While Mike won't display any braggadocio, allow me to do so.  Huzzah Mike!  [Now if he had interviewed Lance for The Sports Law Blog we might get a few more followers.....]

DePaul Law Students: FREE General Admission (including CLE credit for lawyers): $60 DePaul Law Alumni: $30 Other DePaul (non-law school) Students, Faculty, & Staff: $15 Other Law Students (non-DePaul): $20

This op-ed appeared on Fightland, a blog devoted to MMA; the author is the newly appointed commissioner/executive director of the fledgling state commission to regulate combat sports in Wyoming. One interesting point in the piece is how state regulation is necessary not so much for high-level competition (the author is not necessarily expecting UFC to come to Wyoming anytime soon), but for low-level amateur competitions among weekend athletes.

Dear College Athletes:

You are obviously well aware of NCAA rules that prohibit you from advertising, recommending, promoting or endorsing the sale of commercial products and services.

Five years ago when Tim Tebow won the Heisman Trophy, I wrote him a letter on Sports Law Blog suggesting that he might consider suing third parties who profit from the use of his identity in commercial products without his permission.   By filing a lawsuit an athlete is not accepting payment for advertising, recommending, promoting or endorsing the sale of a product; rather the athlete would be protecting the property right in his identity from theft, which he has every legal right to do.

You may have heard that Heisman Trophy winner Johnny Manziel just recently filed a trademark lawsuit against someone for selling "Johnny Football" T-shirts without his permission.  As this is the first athlete with college eligibility to file a lawsuit asserting a trademark or right of publicity violation, the NCAA had no choice but to rule that Manziel can keep any money received from the litigation without it affecting his eligibility.

But the NCAA also clarified that any "loophole" created by Manziel's lawsuit is "closed" because they would consider it an NCAA violation if a lawsuit was an "orchestrated event" between the athlete and a booster to intentionally violate amateurism rules.

Putting aside the NCAA's conspiracy theory paranoia, here is the more likely scenario:

(1) Third party uses your identity in a product;

(2) Third party receives a cease and desist letter from your university which states that third party is violating NCAA amateurism rules and has no right to use your identity; and

(3) Third party throws the letter in the trash because (a) it is not bound by NCAA rules, (b) it is not using the university's intellectual property, (c) the university has no legal claim against it, and (d) it might even be willing to pay you a licensing fee absent your university's interference with its ability to obtain a license from you.

You see, Manziel's lawsuit exposes a dilemma that has always confronted the NCAA but which is no longer one of its best kept secrets.

The dilemma is that although the NCAA can prevent you from licensing (i.e. authorizing) the use of your identity to third parties for commercial purposes, it cannot and never could legally prevent you from receiving damages in a court of law through the enforcement of your legal rights against third parties who use your identity without your permission.  And you don't need to have a trademark because there are right of publicity laws in most states that protect you.

Manziel's lawsuit also exposes the fact that neither the NCAA nor your university has the legal right or authority to prevent, or interfere with, a non-member third party's use of your identity because that property right is yours and it is your property right that is being stolen.  Keep in mind that as your identity increasingly becomes more valuable for use in commercial products, third parties likewise become more willing to bear the cost of the licensing fee awarded to you in your lawsuit against them.

Manziel's lawsuit puts a spotlight on an NCAA rule that, unfortunately, not only interferes with a non-member's ability to enter a legal transaction with you but also burdens you with unnecessary and circuitous litigation that requires you to share one-third of the award with your lawyer.

Sincerely,

Rick Karcher
Sports Law Professor