Sports Law Blog Information

A potentially major development in the Aaron Hernandez murder case occurred last night, when Dolphins center Mike Pouncey was served with a grand jury subpoena after the Dolphins played at the Patriots.  The grand jury is investigating a potential scheme involving the same of guns and it may be connected to Hernandez.  On SI.com last night, Pete Thamel and Greg Bedard broke the story and I have a legal analysis this morning.

USA Today's Steve Berkowitz wrote on Friday that Judge Wilken denied a motion to dismiss in the O'Bannon litigation.  Here is an excerpt from Berkowitz's article in which he addresses Judge Wilken's remarks concerning whether a ban on athlete pay serves a procompetitive purpose:

Meanwhile, the judge also raised questions about the applicability to this case of the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that "in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like."

The NCAA has relied upon this language in defending its amateurism system and has successfully used it [in] many prior legal cases.

However, Wilken wrote in Friday's ruling that the case "does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses.

"Although it is possible that the NCAA's ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, Plaintiffs' plausible allegations to the contrary must be accepted as true at the pleading stage."

Wilken also wrote that the Supreme Court "never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason nor did it cite any fact findings indicating that this ban is the type of restraint is 'essential if the (NCAA's) product is to be available at all'. More importantly, the Court never examined whether or not the ban on student-athlete compensation actually had a procompetitive effect on the college sports market."

Berkowitz's piece raises a really interesting question.  In sports antitrust cases, the issue concerning procompetitive effects essentially revolves around competitive balance.  Why is there an assumption that a ban on athlete pay increases consumer demand for college sports and/or fosters competitive balance?  

First, while I do believe there are many consumers who do not want athletes to be paid, I have serious doubts whether there is any correlation between consumer demand and athlete pay (or lack thereof).  For starters, the consumer knows there are lots of athletes in big-time college sports who are paid under the table from boosters and various other third parties (unless of course one believes that the number of athletes getting paid is limited to only those who actually get caught).  But more importantly, if the rules were changed to permit athletes to be compensated for their names and images, I don't believe fans and alumni would take the position, "I'm not watching my team play this weekend because I read somewhere that somebody paid our defensive end $1,000 this week for signing some memorabilia."  

But who cares what I think and let's assume for sake of argument that some consumers would not be interested in the product if the athletes were paid more than they are currently.  How much relevance should it have for antitrust purposes?  Is a producer insulated from antitrust liability simply by calling its product "unpaid labor"?  If all of the law firms in the U.S. agreed to restrict the pay of their associates (in the first four years before making partner) to law school tuition reimbursement, would the agreement pass antitrust scrutiny if they marketed their product to the consumer as "cheap associate labor"?  Most would not dispute that a team salary cap violates antitrust law but is the answer different if a sports league calls its product "salary capped labor"?  If the NFL could show that it is losing consumers because they believe the athletes are grossly overpaid, would/should that have any relevance for antitrust purposes if the league put an individual cap on each player's salary?  

Second, on the issue of competitive balance, the irony is that college football arguably has much less competitive balance than professional football where the athletes are paid competitive wages.  Unlike professional football, college football has "dynasties" and "powerhouses".  For a college sport that supposedly has competitive balance, why are Alabama's football fans leaving so many empty seats in the stadium? 

One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman (video embedded). Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).

Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is the base he would have been entitled to without the obstruction.

Here is video of the umpires' press conference, which can best be described as a judicial opinion issued from the bench, explaining a decision. A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.

As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so.

Anyway, obstruction now will be the word of the rest of this Series.

Suffolk Law School will be hosting a panel discussion on October 24th titled "Compensation, Commercialization, and Labor Issues in NCAA Division I Sports."  Panelists will discuss the fact that big time college sports = big business.  Experts will discuss a myriad of issues facing the NCAA including compensation for student-athletes, the O'Bannon lawsuit involving EA Sports, and the investigation investigation into Heisman Trophy winner Johnny Manziel's alleged acceptance of money for autographed memorabilia.

Scheduled speakers include:

* Moderator: Brian McLaughlin, Vice President, Symmetry
* Jay W. Fee, Of Counsel, Nelson Mullins Riley & Scarborough, LLP; Adjunct Law Faculty, Suffolk University Law School
* Nancy H. Lyons, Senior Associate Athletic Director for Compliance/SWA, Boston University
* Lisa P. Masteralexis, Head of the Mark H. McCormack Department of Sport Management, Isenberg School of Management at University of Massachusetts, Amherst.
* Warren K. Zola, Assistant Dean for Graduate Programs; Adjunct Faculty, Carroll School of Management, Boston College

It's not to late to attend by registering here.

Today (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.

Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.

In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.

Deadspin has an amusing link to a New York Times article on San Antonio's successful retention of foreign talent.  Evidently, an intern was sent to Argentina to deliver Manu Ginobli's new contract (nice work, if you can get it!), and was attacked by a bird while resting at a public fountain.  In the aftermath of the bird's reckless misconduct, Ginobli's contract had gone missing.

Is it just what happens when you get that once-in-a-lifetime case that is going to be covered in the media, especially the sports media, and make you famous?

In last night's thrilling Game 2 of the American League Championship Series at Fenway Park, Tigers' Alex Avila hit a home run to right field that, as Deadspin's Timothy Burke details with video, a Red Sox fan threw back onto the field. But it didn't seem to be this fan's ball to throw back.  The video indicates he didn't catch it, but rather the woman standing next to him did--or at least she mostly caught it.  Then, based on the video, he wrestled it from her and threw it onto the field.  She didn't seem too happy about it, which would be understandable since the ball would make an awesome memento and is probably worth a pretty good chunk of change, especially to Tigers fans.

The exchange won't wind up in court and seems more like fodder for a law school exam question than a real world scenario, but as my friend Marc Isenberg wonders, did the guy break any laws?  A starting issue is determining who had rights to the baseball.  A simple issue, but one that has sparked debate over the years, including a legal fight over Barry Bonds hit his 756th home run.  Massachusetts law indicates that a person obtains a legal right of possession of an item, like a baseball, when there is physical control + intent to continue control.  The video is not conclusive, but gives the impression that she had control of the home run ball and her negative facial reaction to it be wrestled from her suggests she wanted to keep controlling it.

The guy would probably argue, however, that he had his hands on the baseball the whole time.  If so, then both likely had a right to it.  Also, since the two were seated next to each other, it's very plausible they knew each other and he might argue he had her implied consent.

Assuming it was her baseball, then by taking it from her and throwing it back, there's a good argument he converted the ball under tort law.  He would have dispossessed her of the ball and totally and permanently destroyed it's value by throwing it onto the field.   She could also argue the tort of battery if she could prove that the ball had become part of her personal autonomy, and of course there's everyone's favorite tort, intentional infliction of emotional distress.

There's even a slight chance he committed the crime of petty larceny (when you steal something worth $250 or less), especially since he seemed to take the baseball directly from her.  Then again, he probably lacked the intent to steal, especially if he had a hand on the baseball when she caught it.

Less than four months after the lawsuit was filed, a decision has already been issued in San Jose's case against Major League Baseball.  In June, the city asserted federal and state antitrust law and tort claims against MLBrelating to the league's failure to approve the proposed relocation of the Oakland Athletics (for earlier Sports Law Blog coverage of the dispute, click here).  MLB then moved to dismiss the suit in August in light of its long-standing exemption from antitrust law.  Following a hearing last week, Judge Ronald M. Whyte quickly issued a decision in the case on Friday.  

Primarily focusing on the antitrust issue, Judge Whyte's opinion (available here) granted MLB's motion to dismiss in part, but also denied it in part.  Specifically, although Judge Whyte was quick to criticize baseball's unique antitrust immunity, he concluded that the exemption ultimately precluded San Jose's claims under the Sherman Act.  Following a thorough review of the applicable case law, Whyte adopted a broad view of the baseball exemption, concluding that it protected the business of baseball -- including franchise relocation issues -- from antitrust law.  In the process, he rejected San Jose's claim that the exemption only applied to labor disputes.  As a doctrinal matter, I believe Judge Whyte reached the correct decision. 

Judge Whyte then held that San Jose's state antitrust and unfair competition claims also should be dismissed because the Supreme Court effectively preempted the application of state antitrust law to professional baseball in its 1972 decision in Flood v. Kuhn.  However, Whyte did conclude that San Jose had sufficiently pled its tortious interference claim under state law, insofar as MLB's delay in resolving the proposed relocation had, in and of itself, arguably harmed the city aside from any antitrust concerns.  However, the opinion was clear to note that the ultimate decision of whether to allow the Athletics to move was still MLB's alone, and that San Jose could only pursue damages arising from MLB's delay in resolving the dispute, not the potential rejection of the relocation itself.  

Interestingly, despite deciding the merits of the substantive legal claims, Judge Whyte opted not to resolve the issue of whether San Jose lacked standing to pursue the case.  Although one would typically expect a court to determine whether standing exists before ruling on the merits of the underlying case, Whyte instead concluded that the city could potentially possess standing under Section 16 of the Clayton Act, but that he need not decide the issue now in light of his ruling on the antitrust exemption issue. 

Consequently, although San Jose can proceed with one of the tort claims in its suit, Judge Whyte's decision is nevertheless a big win for MLB.  The most serious claims in the case were dismissed pursuant to the sport's antitrust exemption, and the lone remaining claim can only result in a damages award, and not a court order mandating that the Athletics be allowed to move to San Jose.

Moving forward, it appears that San Jose will seek an immediate, interlocutory appeal of Judge Whyte's ruling to the Ninth Circuit.  I would expect the appellate court to affirm the district court's decision in light of the exemption, given that the Ninth Circuit has previously affirmed the dismissal of a suit raising similar franchise location issues under baseball's antitrust immunity.  Portland Baseball Club, Inc. v. Kuhn, 491 F.2d 1101 (9th Cir. 1974).  Even so, San Jose could potentially pursue its appeal all the way to the Supreme Court.  If the Court were to grant cert in the case, then I believe that would be a strong indication that it intended to overturn MLB's long-standing antitrust immunity.  The threat of a Supreme Court appeal could give the city some leverage over MLB in any future settlement negotiations. 

Meanwhile, in addition to the continued threat to baseball's antitrust exemption, San Jose's remaining tort law claim could also give the city some leverage over MLB as the case moves forward.  MLB would undoubtedly prefer not to proceed with discovery in the case in order to avoid publicly airing the details of its internal deliberation process.  Therefore, should Judge Whyte let discovery move forward for the remaining tortious interference claim while the interlocutory appeal on the antitrust issue is pending, the tort claim could further help encourage MLB to resolve the Athletics' situation.  

All in all, though, MLB certainly has to be happy with Judge Whyte's decision.  

Update: Howard Wasserman wisely notes in the comments that Judge Whyte failed to certify the antitrust issues for an immediate, interlocutory appeal in his decision.  Therefore, under 28 U.S.C. 1292(b), San Jose is currently unable to appeal the decision immediately to the Ninth Circuit, pending any further action by the district court.

Update #2: As Howard (an expert in all matters civil procedure) further explains in the comments, the mere fact that many believe that baseball's antitrust exemption should be overturned would not constitute a "substantial ground for difference of opinion," and therefore would not warrant an immediate, interlocutory appeal under 28 U.S.C. 1292(b).  Even if Judge Whyte were to believe otherwise and certify the appeal, the Ninth Circuit would still have to agree to take the case in order for it to be appealed immediately under 1292(b).  So unless Judge Whyte were to decline to exercise his jurisdiction over the remaining tortious interference claim, and thus enter a final judgment in the case, San Jose may very well be unable to pursue an appeal on the antitrust exemption issue until the conclusion of a trial on the tort claim.  

Thus, San Jose appears to have a difficult decision to make in the case.  In order to pursue an immediate appeal on the antitrust issue, the city could presumably request that Judge Whyte dismiss the remaining tort law claim and issue a final judgment on the antitrust-related issues, but in the process temporarily forgo the opportunity to pursue discovery against MLB.  Alternatively, the city could press the tortious interference claim all the way to trial, but that claim would not result in an order forcing MLB to approve the Athletics' relocation, and would require San Jose to indefinitely postpone its appeal on the antitrust exemption issue.  In hindsight, San Jose may thus wish that it had requested a preliminary injunction in the case, because if it had, and Judge Whyte declined to issue such an order, then the city could have immediately appealed under 28 U.S.C. 1292(a).

Details regarding SRLA's 27th Annual Conference in Orlando, FL can be found here.  In addition, the Call for Papers is now available online here.  The deadline to submit abstracts is October 15, 2013.   

There are so many sports law stories from the past that I wish I had been around to cover.  Some are obvious - the Curt Flood case, for example -- others less so.

One of the latter is the early 1980s legal fight between the Boston Celtics and Toronto Blue Jays over which team had legal rights to employ Danny Ainge, a two-sport star who played for the Blue Jays but had been drafted by the Celtics.

The Blue Jays won a trial 32 years ago from today, but ended up working out a buy out with the Celtics enabling Ainge to join the green.  Ainge, of course, went on to an excellent NBA career and now runs the Celtics.  He's won NBA titles both as a player and general manager.  Looks like he made the right move switching to basketball, but as evidenced by there being a trial and lengthy settlement talks, it wasn't easy.

For a story on the trial, Anthony Cotton wrote this article for Sports Illustrated back in 1981.

A Quick Look at Whether a Legal Barrier to Managers Providing Boxers in Exchange for Compensation from Promoters Truly Exists in the U.S.

When I first read about A-Rod's lawsuit against MLB, I immediately started thinking about removal to federal court on diversity grounds (looking for a good problem for Civ Pro next semester). It was clear that, as an unincorporated association, MLB is almost certainly a citizen of New York (among other states), thus not diverse from Rodriguez and unable to remove to federal court in New York on diversity grounds under the Forum-Defendant Rule.

But I did not think it all the way through. Today, MLB and Selig removed the case to the Southern District of New York based on federal question jurisdiction. MLB argues that the claims are preempted by § 301 of the Labor Management Relations Act; that statute is said to have "unusually powerful preemptive force," such that any state-law claims are converted into federal claims arising under the act and are deemed to arise under the laws of the United States.

From federal court, of course, MLB will argue that the claims are preempted by the CBA and should be sent to arbitration.

SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).

The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.

This weekend HBO premiered “Muhammad Ali’s Greatest Fight,” a superb docudrama about the 1971 decision by the United States Supreme Court (Cassius Marsellus Clay, Jr. v. United States, 403 U.S. 698, 1971) overturning the Champ’s conviction for evading the draft. The movie tells the behind the scenes story first revealed in the Woodward and Armstrong book “The Brethren.”

It is also fittingly the greatest sports law story of all time.

While a first rate cast of actors play the Justices and their clerks, the film wisely lets Ali play himself through the use of always welcome clips from his fights and interviews. As the film reveals, the initial conference vote was 5 to 3 against Ali with Justice Marshall recusing himself because of his role in the Solicitor’s office when Ali was first convicted. Justice John Marshall Harlan II, whose grandfather was the only dissenter in Plessy v. Ferguson, perhaps the Court’s most disgraceful decision, initially sided with Chief Justice Berger and was assigned the Opinion to affirm the conviction. His youngest law clerk, however, convinced the ailing Justice to change his decision. After another conference, the vote was 8 to 0 in Ali’s favor resulting in a startling Per Curiam Opinion and two Concurrences that quoted heavily from the Quran and from Ali, always an entertaining wordsmith.

Needless to say, the Opinion that set Ali free to regain his heavyweight title came as a shock to the nation. Liberals and conservatives alike never thought the Berger Court would rule in favor of the most famous member of the Nation of Islam and an outspoken critic of the Vietnam War. If you think the country is polarized now, go back and look at the videos of a nation literally at war with itself: not Democrats against Republicans but young against old and black against white.

So why is this the greatest sports law story? After all, nowhere in the Opinions do you find the words “athlete” or “sports” or “boxing”; and there is no mention that Ali had been a Champion or that his title had been stripped from him.

The clue comes in the scene when the Court votes to grant Certiorari. Responding to the obvious dismay of Justice Harlan, Justice Brennan says “Yes, that’s right we are hearing the case because the Petitioner is Muhammad Ali.” Ali is not just the most famous sports figure of all time; in those years, he was the most famous person on the planet. The Supreme Court heard the case, then reversed a conviction of a famous athlete who held a sincere objection to participating in an unjust war, precisely because he was a famous athlete who was a hero to so many.

What makes sports law so interesting is that cases involving athletes that have nothing to do with how they play the games have a heightened focus and interest not just by the Judges and lawyers but also by the general public. So Antitrust, one of the most complex areas of the law, becomes a topic of everyday conversation and an Ed O’Bannon, who started all of 34 games in the NBA, becomes a household name. The branch of government most citizens know least about is the Judicial System and yet it may have the most influence on everyday lives. It is a good thing to shine a light on the law.

And to see The Greatest in his prime.

It's a big day for baseball-and-steroids lawsuits, as Deadpsin notes. Albert Pujols has sued Jack Clark for deafamation in state court in Missouri, over Clark's statements on a radio program in August that Pujols used steroids. Clark's statements were based on an alleged conversation with Pujols' former trainer.

I have argued before that we should not infer that someone used steroids if they fail to sue over accusations of doping; the legal standard of actual malice is so high that the player may well lose, even if he didn't used PEDs. Pujols' complaint works to overcome that; it is loaded with allegations to show actual malice--including that Clark was trying to drum-up ratings for a new radio program, that the trainer disavowed ever having these conversations with Clark, and that Clark supported Pujols' charitable efforts (something he would not have done had he believed Pujols was cheating).

The Complaint is angry (perhaps too much--it engages in the kind of redundant hyperbole that I tell students often undermines credibility). But Pujols seems determined to use litigation to try to establish that he does not dope.

Complaint, filed in state court in New York, is here. It includes claims for Tortious Interference with Prospective Business Relationships (because of the effects on his endorsement opportunities) and Tortious Interference with Existing Contracts (because of the effects on his contract with the Yankees), all based on MLB's investigation cum vendetta against him.

I doubt this goes anywhere. Tortious interference is incredibly difficult to prove, particularly in requiring highly unlawful or tortious misconduct; baseball's actions, while skirting some ethical lines, does not seem to reach that level. There also is a good chance the claims are precluded by the CBA and federal labor law, since they functionally seeks to correct and overturn punishment imposed on him by baseball pursuant to its institutional arrangements, even when disguised as claims for tort damages (see Jonathan Vilma's defamation suit against the NFL). The irony is that it was a claim for tortious interference that MLB brought against Biogenesis, in an effort to obtain documents in discovery, which started all of this. The Rodriguez complaint labels a sham and identifies that as one of the tortious acts.

Update: A-Rod is not done. He filed a separate action for medical malpractice against the Yankees' team physician New York Presbyterian/Columbia University Medical Center, arising from the failure to diagnose his torn labrum last October.

Honored that Andrew Stauber, an attorney at Wilmer Cutler Pickering Hale and Dorr in Boston and a former sports law student of mine at Boston College Law School, has contributed an outstanding post on the role of Title IX in the private funding of Navy and Air Force football teams during the government shutdown.

The government shutdown is having a far reaching impact across the country, and unfortunately, not even sports fans are not immune from its effects.  Due to the shutdown, the Department of Defense announced the suspension all intercollegiate athletic competitions involving the service academies, including Army, Navy, and Air Force.  Absent a shutdown ending miracle, speculation abounded yesterday that the Air Force-Navy and Army-Boston College football game would be canceled.  There is good news, however, for the fans of those football teams: the games will go on, per ESPN's Brett McMurphy.  McMurphy reported that "nongovernment funding" would cover the costs of these games, allowing the Falcons and the Midshipmen, the Black Knights and the Eagles to battle it out on the football field Saturday.

But what about the other sports teams at the academies? And specifically, what about the women's teams at these schools? Yesterday, both Army and Navy canceled women's soccer games against Colgate and at American, respectively.  This is certainly unfortunate for those teams, as well as for the other non-football men's teams that have had events or games canceled. 

All schools, including the academies, are required to have a Title IX compliance officer.  I imagine each of the officers has considered this issue in much greater depth than I have, and perhaps they have decided that there is no or minimal risk under Title IX.  By no means am I suggesting that academies should cancel their Saturday football games.  I think it's great that the academies and Boston College (and perhaps some generous donors) have found a way to make these games happen.  For many reasons, most of which are more important than sports, I hope the government shutdown ends soon.  In that case, all academies' sports teams can continue with their regularly scheduled matches.  Alternatively, hopefully the non-revenue sports will find a way, or the money, to keep their schedule moving forward.  Absent those outcomes, all schools, including the service academies, need to remember that Title IX remains in effect even if the federal government, including the Office of the Assistant Secretary for the Civil Rights Department, is shut down.

It is with great pleasure to announce the publication of a new, short law review article entitled "How Young American Athletes Can Best Challenge a Bureaucracy that Prevents Them from Earning a Living."   This new law review article provides a concise summary of how young American athletes can best challenge the NCAA 'no-pay' rules and the NFL/NBA age requirements.  This article also recommends favorable circuits for challenging each set of rules.

For readers who are interested in a far longer antitrust analysis of the NCAA 'no pay' rules, a current draft of my treatise of amateurism and antitrust law is available for download here.  That treatise will be published in the Fall 2013 edition of Case Western Reserve University Law Review.

Last March, in an Open Letter to College Athletes, I opined that as college athletes’ names and likenesses become increasingly more valuable for use in commercial products, sellers of commercial products and services may become more willing to use and profit from the identities without permission in exchange for the cost to settle the athlete’s publicity rights lawsuit.  This results in a pseudo-licensing fee; in other words, the settlement operates as an ex post licensing transaction that was not negotiated and paid ex ante.   The issue then becomes whether any legitimate purpose is served by burdening athletes with such unnecessary, time-consuming, and costly litigation.  Why should athletes not be permitted under NCAA rules to license the use of their names and likenesses in commercial products and receive the substantive equivalent payment that they otherwise would receive in litigation suing the seller for violating the athlete’s right of publicity?

As far as eligibility is concerned, I do not know how the NCAA could legally sanction college athletes for collecting damages in a court of law through the enforcement of their own property interests against third parties who commercially exploit them without the athlete’s permission (i.e. without a license).  As third-party beneficiaries of the NCAA bylaws, college athletes would have standing to challenge such an eligibility decision on the grounds of arbitrary and capricious enforcement.  The first question would be, how is the NCAA's endorsement rule rationally related to the preservation of amateurism?  Given how commercialized the big business of college sports has become and the increasing exploitation of college athletes, I am not convinced that if the NCAA faced a Jeremy Bloom-like challenge to its endorsement rule today that a Colorado state court or a court in a different jurisdiction would have much sympathy for the NCAA and its assertion that the endorsement rule prevents college athletes in big-time college sports from becoming "billboards for commercialism."  The recent rulings of the Third and Ninth Circuits not only suggest a much more skeptical view of amateurism principles that would allow commercial entities to profit off the backs of the unpaid labor that makes those profits possible but also signify a movement towards courts' recognition of college athletes receiving compensation for the use of their identities in commercial products and services.  Secondly, the discipline or suspension of a college athlete for exercising his property rights in a court of law would likely be viewed as arbitrary and capricious enforcement and a violation of public policy.

Last Thursday, EA Sports and College Licensing Company reached a preliminary settlement in the "Ed O’Bannon" class action lawsuit over the use of college athletes' names, images, and likenesses.  The terms of the settlement have not been disclosed, but reports suggest that the figure could be upwards of $50 million.  Not surprisingly, EA Sports announced that it will no longer produce its popular “NCAA Football” franchise beginning in 2014.  If the settlement is approved, more than 100,000 former and current student-athletes may be eligible for varying amounts of compensation depending on the specifics of each class member’s claim, including the prevalence of the individual in the game.