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UNH Law Panel on Sochi Olympics and Russia's "Ban on Homosexual Propaganda"

Spring 2014 Panel on Russia’s “Ban on Homosexual Propaganda” and impact on Sochi Winter Olympics

On Thursday, February 6, 2014 — the day before the XXII Olympic Winter Games are set to begin — the UNH Law Sports and Entertainment Law Institute (SELI) and UNH Law's Chapter of Lambda Law will co-host a panel on Russia's new law that "bans gay propaganda aimed at children" and its impact on the Sochi Olympics.  Please RSVP to:  ip.center@law.unh.edu

The panel will address such topics as:
  • How does the prohibition impact LGBT rights in Russia?
     
  • Is the prohibition legal under the law of Russia? How does the prohibition interact with local Russian laws that have barred public demonstrations of LGBT groups?
  • Is the prohibition consistent with the Olympic Charter? The International Olympic Committee (“IOC”) believes the prohibition does not violate the Olympic Charter.  If that is the case, should the Olympic Charter be revised?
     
  • Despite widespread criticism of the prohibition, no country or sponsor has said that it will withdraw from the Sochi games. Is this a case of “all talk and no action”?
     
  • The United States has responded to the prohibition by announcing that neither President Obama nor Vice President Biden, nor their families, will attend the Sochi games.  In previous games, either the President or First Family has attended.  The U.S. is instead sending former Secretary of Homeland Security Janet Napolitano and Billie Jean King as part of its official delegation. Is this response appropriate?

    Should the U.S have adopted a bolder response, such as pulling its athletes in a boycott – as it did in the 1980 Summer Olympics in Moscow in response to the Soviet Union’s conflict in Afghanistan?  Or is the response too harsh and might it create a precedent for leaders to skip Olympic games when they disagree with the host country’s laws?
     
  • Is the U.S. hypocritical given the different forms of legal discrimination against LGBT groups in the United States?  Thirty three states ban same sex marriage.  Federal law does not bar LGBT discrimination in the workplace and neither do the laws of most states. In sports, NFL teams have been known to ask college players about their sexual orientation.
Katherine Hedges, president of UNH Law's Chapter of Lambda Law, will introduce the panel, which will be moderated by SELI Director Prof. Michael McCann.


Panelists will include:

William Butler

William Butler is the John Edward Fowler Distinguished Professor of Law and International Affairs at Penn State Law.

He is the preeminent authority on the law of Russia and other former Soviet republics and the author, co-author, editor, or translator of more than 120 books on Soviet, Russian, Ukrainian and other Commonwealth of Independent States legal systems. He edits the journal Russian Law, published by the Russian Academy of Legal Sciences; theEast European and Russian Yearbook of International and Comparative Law, published by The Vinogradoff Institute; and numerous other scholarly journals.

Butler holds six degrees, including: LL.D., University of London, Ph.D., The Johns Hopkins School of Advanced International Studies LL.M., School of Law of the Academy University of Law, Institute of State and Law, Russian Academy of Sciences; J.D., Harvard Law School; M.A., The Johns Hopkins School of Advanced International Studies; and a B.A., The American University.

Dmitry V. Chesnokov


Dmitry V. Chesnokov is a sports and entertainment lawyer for Hobson Bernardino & Davis LLP, handling both transactional and litigation matters for clients.

Mr. Chesnokov is licensed to practice in the State of California and Russia. Mr. Chesnokov received his law degree from the Moscow Academy of Business in Moscow, Russia and studied at the University of Essex School of Law in the United Kingdom. He is fluent in Russian and English.

In his litigation practice, Mr. Chesnokov has a strong background in government investigations, FCPA, due diligence and has extensive knowledge of e-discovery matters. In his transactional practice, he represents international athletes and entertainers. Mr. Chesnokov is also an internationally recognized sportswriter. His exclusive interviews with NHL stars have made news around the world.

His critically acclaimed reporting of the Lokomotiv air crash was picked up by most major media outlets, including BBC, NBC Sports, TSN, ESPN, the Washington Post and many others. Mr. Chesnokov is a senior writer for Yahoo! Sports and other new and traditional media outlets.

As a Member of the International Sports Press Association and the Professional Hockey Writers Association, Mr. Chesnokov is also an on-air contributor to TSN, Canada's leading English language sports TV channel. He regularly tweets insightful hockey analysis @dchesnokov

Matthew Lane


Matthew Lane teaches international and comparative sports law: examining law and sports from a global perspective at UNH Law. He practices as an associate with Preti Flaherty in its Concord, New Hampshire office.

Lane joined Preti Flaherty in 2009 and practices with both the firm's Business Law and Sports & Entertainment Groups. His sports law practice focuses on the representation of athletes in a variety of areas, including contract negotiations and commercial rights. Lane is a certified IAAF Athlete Representative and serves as an agent for several athletes in the sport of track and field.

Prior to pursuing law, Lane was a professional runner, sponsored by Nike, and was a member of two U.S. national teams. As a collegiate athlete at William and Mary, he was an 11-time NCAA Division I All-American and the 2001 U.S. Track Coaches Association Athlete of the Year (the track & field “Heisman”).

In 2002, he became the 251st American to run the mile in under four minutes (his official time was 3:57.57). In 2010, he was honored as one of 25 "Silver Stars" of the Colonial Athletic Association conference— the 25 best athletes in the 25-year history of the conference.

He was inducted into the William and Mary Athletic Hall of Fame in 2011. He also served as the Head Indoor Track & Field coach at Yarmouth High School, and currently serves as Assistant Coach to the school's cross-country team.

During law school, Lane served as the Executive Editor of the Maine Law Review. He is a native of Yarmouth, Maine.

Cameron Myler


Cameron Myler was a member of the U.S. National Luge Team from 1985 to 1998 and competed on four Winter Olympics teams - 1988 (Calgary, Canada), 1992 (Albertville, France) 1994 (Lillehammer, Norway) and 1998 (Nagano, Japan). She earned her best finish of fifth in the women's singles event in Albertville at the 1992 and was elected by her teammates to carry the American flag during the opening ceremony of the 1994 Winter Olympics in Lillehammer.

Myler later practiced law in Milbank, Tweed, Hadley & McCloy's Intellectual Property/Litigation Group before moving to Frankfurt Kurnit Klein & Selz, an entertainment and media law firm in New York City.

She is now a clinical professor  at New York University and Athlete Ambassador for Kids Play International, which uses sport to educate and empower underserved youth in countries such as Rwanda, Malawi and India.

Myler  has also been a member of the U.S. Olympic Committee Board of Director, the USOC Athletes' Advisory Council USA Luge Vice President Board of Directors, and NYC2012 - Board of Directors.

Myler holds a J.D. from Boston College Law School and a B.A. from Dartmouth College.

L. Jon Wertheim


L. Jon Wertheim is both the Executive Editor and a Senior Writer at Sports Illustrated. He is one of the most accomplished journalists in the United States.

At SI, Wertheim has authored numerous articles on the Olympics as well as the SI story on NBA player Jason Collins who in 2013 came out as gay. Wertheim is also the co-author of the New York Times best-selling book Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won.

Wertheim has also authored six other highly-praised books, including Strokes of Genius: Federer, Nadal, and the Greatest Match Ever Played (2009, Houghton Mifflin Harcourt), Blood in the Cage: Mixed Martial Arts, Pat Miletich, and the Furious Rise of the UFC (2009, Houghton Mifflin Harcourt) and Running the Table: The Legend of Kid Delicious, the Last Great American Pool Hustler (2008, Houghton Mifflin Harcourt).

Wertheim is also a recent Ferris Professor at Princeton University. Wertheim received his J.D. from the University of Pennsylvania Law School and B.A. from Yale University.
                                                  
Read more >>  Sochi Olympics, Ban on 'Gay Propaganda’ Are Subject of Expert Panel at UNH Law
Student-Led Event Feb. 6 Will Feature National Names in Sports Law and a Four-Time Olympian
Jan 29, 2014

Contact

Please RSVP to:  ip.center@law.unh.edu

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Will Efforts to Unionize Student Athletes Hurt the Antitrust Case Against the NCAA?

Following up on Warren Zola and Michael McCann's commentaries on news of Northwestern University football players seeking to unionize:

(1) I discuss on Forbes 21 reasons why student-athletes are "employees" and should be allowed to unionize.

(2) But, even if student-athletes may unionize, labor leaders must be cautious about how unionizing will affect the ongoing antitrust litigation against the NCAA.

For further discussion on the interplay between labor and antitrust laws in U.S. sports and the antitrust risks associated with unionizing student-athletes, I discuss that topic in my recent article in Forbes Sports Money, "If College Football Players Unionize, It May Hurt Their Antitrust Case Against the NCAA."

For further discussion of the merits of the NCAA Student-Athlete Names & Likeness Licensing Litigation lawsuit, please see the current draft of my upcoming Oregon Law Review article, "The Future of Amateurism After Antitrust Scrutiny."

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More on the Unionization of College Athletes

In addition to Warren Zola's great piece on college athletes unionizing, I team up with Zac Ellis on SI.com to discuss the legal and business impact of today's developments

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The Unionization of College Athletes


Football players at Northwestern University have begun the process of unionizing.  Unfortunately, despite all of the support for this objective on social media, this is hardly a simple task.  For over 50 years, the courts have bought the NCAA’s argument that college athletes (student-athletes) are NOT employees of their institutions.  Thus, the protections the National Labor Relations Board provides employees—the rights to unionize etc, are not available to college athletes.

In order for college athletes to unionize, they will need one of the following to happen: 1) the court system and/or the NLRB will need to change precedent in granting college athletes them employee status; 2) Congress will need to take action (good luck getting those individuals to agree on ANYTHING); or 3) the NCAA accepts the unionization efforts granting otherwise illegal activity (capping compensation as an example) protection under the well-defined labor exemption that collective bargaining affords.

There is one incredibly important, and often neglected, aspect to consider if college athletes are granted employee status—the tax exempt status of universities. Many college athletic departments rely upon gifts and donations to fund their teams and initiatives.  Should college athletes be defined as employees, the court system may remove the non-profit status granted to college athletic departments.  If so, do operating dollars for college athletics disappear?

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NFL may have dodged Marijuana Legal Issue in NFL Europe: Mixing employment of "NFL Players" with "Non-NFL Players"


This week I had a feature article for SI.com on how the gradual legalization of marijuana will impact the NFL and its collective bargaining with the NFLPA over health policies and workplace conditions.. I also address new medical research which suggests that marijuana may help to treat concussions in more effective ways than medicines.

In response to the article I've received a number of reader emails.  One is from someone who was intricately involved in the management of NFL Europe (at times called "NFL Europa" and the "World League of American Football").  NFL Europe was an NFL-backed football league in Europe that existed in different forms from 1991 to 2007.  NFL Europe had several goals, with the two most important being to help young NFL players develop with real game time--in other words, a minor league for players after college--and to boost the NFL's popularity in the European market.  The NFL ultimately pulled the plug on NFL Europe, as I wrote about in the Harvard Journal of Sports and Entertainment Law:
The NFL has encountered significant obstacles in generating sustained international interest in “American football.” Most notably, from 1991 to 2007, the NFL owned and operated NFL Europe (also called World League of American Football, World League, and NFL Europa). NFL Europe featured between six and 10 teams each season, with teams stationed in such cities as Barcelona, Amsterdam, and Berlin. Although NFL Europe attracted viable fan bases in certain locations,it reportedly lost $30 million a year. A leading reason for its failure was the refusal of most NFL teams-- and their owners--to follow NFL directives that teams use NFL Europe for player development. Acting instead in self-interested and entirely rational ways--most NFL teams declined to send their promising and young, but not yet ready for the NFL, players to NFL Europe. Teams surmised that those players would develop faster if they worked with NFL coaches and practiced against seasoned NFL players. In lieu of sending those promising players to NFL Europe, teams usually sent marginal players, thereby providing European fans with inferior American football.
Interestingly, marijuana was a legal issue for NFL Europe for four main reasons:
  1. Marijuana was legal in Amsterdam in licensed coffee shops and the Amerstdam Admirals were one NFL Europe franchise.

  2. Some NFL Europe players were employed by NFL teams.  These players tended to be younger guys, practice-squad types who teams wanted to develop. They were NFLPA members and were thus obligated to follow the collectively-bargained NFL Drug and Substance Abuse Policy (which not only prohibits marijuana, but assigns the same penalties for its use as using cocaine, heroin and other serious drugs).   

  3. Other NFL Europe players, however, were not employed by NFL teams.  These "non-NFL players" were generally older and were playing pro football for the love of the game, not because they had a likely NFL future.  They were not obligated to follow the collectively-bargained NFL drug policy.   These players were instead employed directly by NFL Europe teams.  They were not members of the NFLPA or of any alternate union or players' association..

  4. NFL Europe tested all players--regardless of whether they were "NFL players" or "non-NFL players"--for marijuana. 
The NFL Europe person who emailed me stressed that this mixed arrangement of employment status was a real worry in terms of drug policy and other employment issues:
We had a team in Amsterdam and the team was made up of active NFL players (2nd/3rd string guys) as well as guys not under NFL contracts (just like every team in the league). Of course, the NFL guys were subject to the NFL CBA at the time whereas the non-NFL guys weren't. NFL Europe players were not unionized. All players in the league were drug tested. As you surely know, marijuana usage is legal in Amsterdam under certain conditions. And as you would expect some of the more adventurous players wanted to know what it was like "in a hash bar". So we had our issues, as you can imagine.
It doesn't appear there were any legal challenges brought by NFL Europe players over the league's ban on marijuana, but the NFL may have dodged a bullet.  While NFL Europe players employed by NFL teams likely lacked a viable legal claim because they were NFLPA members and were thereby subject to collectively-bargained drug policies, those directly employed by NFL Europe teams ("non-NFL players") had a different legal status and may have had legal recourse under European Union law on workplace drug testing to challenge marijuana testing. If the NFL or another pro league places a de facto minor league in Europe or elsewhere, mixed employment will likely demand more attention.

Also, as the NFL considers returning to Europe with an NFL team, these types of workplace issues could prove problematic (and for good pieces on that topic, see this article by Kristi Dosh and this article by Marc Edelman and Brian Doyle).  This is all further evidence that sports law, like all areas of law, is becoming increasingly international.

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New Sports Illustrated Article: How should the NFL deal with increased legalization of marijuana?

Roger GoodellOver the last several months, I've worked on a project for Sports Illustrated on the impact of the legalization of marijuana on the NFL (and other leagues).  I have a new feature article for Sports Illustrated on this topic. I interviewed several former NFL players, a former NFL GM, a current prominent NFL agent and several doctors.  I hope you have a chance to read it.  Here's an excerpt:

* * *

A more dramatic change would be to permit NFL players to use marijuana for medicinal purposes. This change would not be made until players in all states could legally use marijuana for medicinal purposes. Should that time come to pass, the NFL and players' association could develop and implement therapeutic use exemption application procedures for marijuana use. The procedures would be comprehensive and would only permit a player to use marijuana when he proves the necessity. Such procedures already exist for Attention Deficit Hyperactive Disorder (ADHD) medication. The league rejects use exemption applications for Adderall and other ADHD medication unless players can convincingly establish a medical need. Players generally need to provide physicians' evaluations, medical tests and treatment plans to be seriously considered.


An even bolder change, and again one requiring clear legalization of marijuana, would be for NFL teams to actively use marijuana vaporizers and sprays to treat players for pain management and even concussion treatment. While the idea sounds far-fetched in 2014, perhaps it won't be five or 10 years from now. And as Goodell said, the NFL "will continue to support the evolution of medicine."


A potential road block to changes to the NFL's marijuana policy is the negotiation process itself.


"Everything that the league and players agree to stems from the give-and-take of negotiations," the former GM says. "Players will ask to use marijuana and the league will want something in return." 

* * *

To read the rest, click here.

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Extra points

What did folks think about Roger Goodell's idea (first offered by Bill Belichek, actually) to eliminate PAT kicks? It's a great example of a sport's rulemakers tweaking background rules to make the game better, fairer, or, in this case, more challenging.

It has been fun seeing the various suggestions floating around TV and the internet, including:
• Goodell's basic proposal that a touchdown is automatically worth seven points. A team can try for a conversion, which would give them an additional point; failing on the conversation would mean losing a point on the touchdown.
• Moving the PAT kick back to about a 40- or 50-yard kick.
• Make the PAT kick from the point at which the player entered the end zone. So if he got into the end zone along the sideline, the kick would be from the sideline. This would revive some of football's rugby roots.

Is changing the PAT rules a good idea? Are there other ways to do this?

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Legal Implications of Medical Marijuana and the NFL

If an NFL player received a physician's prescription to use marijuana as a medicine, could the NFL deny him?  The answer is probably yes, since the player's contract requires him to adhere to collectively-bargained restrictions, one of which is no use of marijuana.  As to whether the player could seek a claim under the Americans with Disabilities Act to use marijuana, while it's true that the ADA can't be contracted around, the Ninth Circuit recently held that medical marijuana is not protected by the ADA.

I spoke with Maggie Gray today about this topic and the arrest of Browns receiver Davone Bess -- who was arrested at an airport after tweeting a photo which seemed to show marijuana -- on SI Now:

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A-Rod, the MLBPA, and PED Culture Change

By now everyone has had time to digest Monday's news that Alex Rodriguez is suing both MLB and the Major League Baseball Players Association in an attempt to overturn the decision by arbitrator Frederic Horowitz's suspending him for the entire 2014 season.  While Rodriguez's case against MLB had been expected, his decision to also name the MLBPA in the suit took some by surprise.  In particular, Rodriguez alleges that the union violated its duty to fairly represent him in three ways: (i) by failing to take sufficient steps to stop MLB from leaking confidential details regarding his arbitration to the media, (ii) by failing to intervene to prevent MLB from obtaining information through it's Florida state court lawsuit against Biogenesis, and (iii) through statements made by former MLBPA Executive Director Michael Weiner allegedly suggesting that A-Rod was guilty of PED use.

Rodriguez likely included the claims against the MLBPA in his suit in hopes of boosting his chances of convincing the federal court to overturn the arbitration decision.  By alleging that the union did not fairly represent him in the matter, he can contend that he should not be bound by the arbitration's outcome, despite the fact that it was the result of a collectively-bargained-for procedure.  Rodriguez's chances of success on the claim are nevertheless quite slim, as a breach of the duty of fair representation typically requires a showing that the union acted in bad faith, or in an arbitrary or discriminatory way, neither of which appears to be the case here.

A-Rod's suit against the MLBPA can also be viewed in another light, however; in many respects, it is a natural consequence of the recent culture change within the union regarding PED use.  In the wake of the Biogenesis scandal, a majority of MLB players increasingly appear to favor stiffer punishment of PED violators.  For example, the MLBPA announced over the summer that it would not defend players in cases where there was overwhelming evidence of PED use, but would instead encourage them to reach a settlement with MLB.  While such a stance appears to reflect the majority opinion within the union, it also exposes the MLBPA to suits like Rodriguez's when an accused PED user feels that the union should have done more to protect him from league prosecution.

This culture change may also explain one curious aspect of the Rodriguez arbitration decision.  Prior to the release of the decision, commentators had questioned how MLB had reached the 211-game figure in its suspension of Rodriguez.  Indeed, under Section 7.A of MLB's Joint Drug Agreement (JDA), a first time violator is supposed to receive a 50-game suspension.  However, as the arbitration decision reveals, Rodriguez's suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is "subject[] to disciplinary action for just cause" for "any violation ... not referenced in Section 7.A through 7.F."

As Fangraph's Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious.  Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A.  Section 7.A, meanwhile, expressly applies in cases where a player "tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance," the latter half of which seemingly would apply to the facts of the A-Rod case.  Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances.  In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.

Horowitz's reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise.  In other words, the term "a Performance Enhancing Substance" would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.

Horowitz's decision justifies his unusual interpretation of Section 7.A as follows:

MLB, the MLBPA, and the Player agree that Section 7.G.2 of the JDA supplies the governing framework for this case. The record establishes that cases such as this, involving continuous and prolonged use or possession of multiple substances (as opposed, e.g., to a single positive test), were intended to be handled under Section 7.G.2 rather than Section 7.A.
Arbitration Decision at 28 (appearing as Exhibit A to A-Rod's complaint).

All of this raises the question of why the MLBPA would agree to such an interpretation of the JDA.  Indeed, because violations of Section 7.G.2 are not subject to the typical 50-100-lifetime suspension framework employed for violations of Section 7.A, David Waldstein of the New York Times notes that the Rodriguez arbitration decision potentially gives MLB significant new power to punish alleged PED users.  Admittedly, in Rodriguez's case the application of Section 7.G.2 was arguably beneficial, as his use of three different banned substances could have potentially justified a lifetime suspension under Section 7.A.  Nevertheless, given that the Rodriguez decision will serve as a precedent for future cases, and therefore may subject players that would normally be subject to only a 50 or 100-game suspension under Section 7.A to lengthier punishment, the question remains of why the MLBPA would take such a stance in the Rodriguez arbitration.

Although we don't know for sure why the MLBPA took the position it did, one possible explanation is that its stance reflects the union's changing culture with respect to PED use.  If a majority of union members now favor stiffer punishment of PED users, then the MLBPA's consent to the application of Section 7.G.2 in cases where a player used multiple banned substances begins to make more sense.  While this new interpretation will certainly hurt those accused of PED use in the future, it will likely also have a significant deterrent effect against PED usage.  As a result, the union may have concluded that it was willing to concede to a potentially questionable interpretation of the JDA in order to accede to the wishes of a majority of its membership.

Indeed, the union's stance on the applicability of Section 7.A to A-Rod's case appears to have shifted over time.  Last summer, MLBPA Executive Director Michael Weiner seemed to suggest that the Biogenesis suspensions were not subject to Section 7.A.  By the time Rodriguez was formally suspended in August, however, the union had apparently changed its position, with Commissioner Bud Selig acknowledging that "the MLBPA has now taken the position that your [Rodriguez's] discipline ... can only be imposed in accordance with the schedule set forth in Section 7.A." (Arbitration Decision at 14).  By the time that Rodriguez's case reached arbitration, however, the union apparently had flip-flopped once again, agreeing that Section 7.G.2 was the applicable provision.

Whether the union will ultimately come to regret its position in the Rodriguez case remains to be seen.  At a minimum, though, it appears to reflect a new reality within the MLBPA regarding PED use.

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Fontana on Jewish athletes


David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."

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Interested in studying Sports Law? Join our UNH Law Sports and Entertainment Law Institute chat tonight

If you're interested in studying sports law, I hope you consider joining our chat tonight from 7:30 to 9:30 pm EST at the University of New Hampshire School Law.  I'll be joined by two current students and we'll talk about our Sports and Entertainment Law Institute and answer questions about our programs.  I hope you can join the discussion!  Here's more information:


  Admissions    |    Apply Now   |   Request Information



You are invited to join UNH Law faculty, staff, and students for our upcoming Chat Night, which will focus on the areas of sports and entertainment law. This is your opportunity to ask questions and learn more about the opportunities available to UNH Law students pursuing these fields.
Chat Night: Sports and Entertainment Law
Wednesday, January 15th
7:30pm - 9:30pm EST
Chat Night will include Professor Michael McCann, Director of the Sports and Entertainment Law Institute (SELI), Trish Morris, JD '06, Associate Director of Admissions, as well as current UNH Law students who have first-hand experience with SELI's offerings.

The Sports and Entertainment Law Institute
For 40 years, UNH Law has promoted intellectual property as an engine for innovation and growth. In keeping with our pioneering roots in the field of intellectual property, UNH Law recently launched SELI as part of the Franklin Pierce Center for IP. UNH Law students interested in pursuing sports law will have access to our innovative offerings, including:
In addition to academic offerings, SELI hosts various special events, lectures, and presentations throughout the year. Prominent upcoming and recent events include:
  • Thursday, February 6th, 2014: Panel on Russia's "Ban on Homosexual Propaganda"; SELI and the UNH Law Chapter of Lambda Legal will co-host this panel on Russia's so-called "ban on gay propaganda aimed at children" and its impact on the Sochi Olympics, moderated by Prof. McCann, including notable panelists from the fields of academia, sports, and law. (Detailed event information will be added in the coming days.)
  • Tuesday, November 5th, 2013: A Town Hall Discussion on Ed O'Bannon v. NCAA and the Future of College Athletics; moderated by B.J. Schechter, Executive Editor of Sports Illustrated and SI.com, with notable panelists from both the sports and law communities, including Prof. McCann. A full recording of the event is available.

Admitted Student Information
Congratulations on your admission to UNH Law! Now that the application process is behind you, there may be steps you still have to take in order to secure your seat for Fall 2014. As an admitted student, you will soon be receiving an invitation to attend one of our Admitted Student Days this Spring. If you have not visited yet, this is your chance to see the campus, meet current students and faculty, and learn more about the many exciting opportunities available to UNH Law students. You can expect to receive a formal invitation by mail in the coming weeks. I look forward to seeing you on campus!
– Robin Ingli, Assistant Dean for Admissions at UNH Law

Meet Professor Michael McCann
Michael McCann is a professor of law and director of the UNH Law Sports and Entertainment Law Institute (SELI)
McCann is one of the nation’s leading experts in sports law, a seasoned sports attorney, and an award-winning teacher and scholar. He is Sports Illustrated ’s legal analyst, a writer for both Sports Illustrated and SI.com, and the on-air Legal Analyst for NBA TV. McCann has covered the Boston Marathon bombings, NBA, NFL & NHL lockouts, the Penn State scandal, O’Bannon v. NCAA, Lance Armstrong & other stories... Read more
Follow Prof. McCann on Twitter

“Professor McCann is an authority on sports law and a prominent voice in journalism – when athletes and athletic organizations encounter legal hurdles, he’s among the first people called to weigh in. His expertise, experience, and accessibility make him an invaluable resource, and our current and incoming students – many of whom follow Professor McCann on Twitter and have tuned in for his live coverage of recent events – are thrilled to have the opportunity to work with him.”
– Professor Alexandra Roberts, Executive Director of the Franklin Pierce Center for IP at UNH Law

STAY CONNECTED! FIND US ON: 
         

© 2013 University of New Hampshire School of Law
2 White Street  •   Concord, NH 03301  •   (603) 228-9217

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A-Rod: A Detailed Look at His Arbitration Ruling and Its Implications

I am writing a series for Forbes SportsMoney that looks at the A-Rod arbitration decision from a number of different legal angles.

Here are four of my recent articles on the A-Rod decision that readers may find helpful:

1.  A-Rod Will Have a Tough Time Challenging His 162 Game Suspension in Court  (Jan. 11)

2.  The A-Rod Arbitration Might Have Been Legally Wrong, But that Doesn't Make the Arbitrator Biased (Jan. 12)

3. Should The Major League Baseball Players' Union Fire Frederic Horowitz for His A-Rod Decision? (Jan. 14)

4.  Why Two Of Baseball's Past Arbitrators May Have Been More Lenient On A-Rod's Suspension (Jan. 15)

5.  Why A-Rod's Decision to Sue Players Union May Be More Strategic Than Legal (New:  Jan. 16)

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Two New Sports Illustrated Articles: Proposed NFL settlement Rejected, Maryland sues ACC



I have a couple of articles for SI.com today, a busy day in sports law:

* What Rejection of Settlement means to concussion case against NFL

Excerpt:

The good news for the NFL and the retired NFL players who support the settlement is that they can rework it and then petition for Brody's approval. One obvious correction would be to provide more data and documentation to support the settlement's economic assumptions. A second and more controversial step would be to increase the $765 million. Whether NFL owners, who will share in paying this amount, are willing to increase their contributions by a significant margin remains to be seen. A 31 percent increase would bring the settlement amount to just over $1 billion. Given the league's annual revenue of $9 billion to $10 billion, it could send a powerful message to Brody and skeptical retired NFL players if a new proposed settlement at least crossed the billion dollar line.

A reworked settlement could also reallocate some of the money that was intended for medical research to retired players' health expenses. While this move would raise a potentially different set of objections by Brody, it would help to address her central criticism that not enough money is being made available to retired players.


* Maryland-ACC suit brings business of college sports back to spotlight again

Excerpt:

There are three key takeaways from the Maryland-ACC litigation.

First, both sides hope to litigate before home-state courts, with the ACC holding the "home-court" advantage for the time being. The North Carolina-headquartered ACC is surely appreciative to litigate before North Carolina jurors and a judge elected by North Carolina voters. Maryland, in contrast, would prefer to litigate before a Maryland court, which would feature Maryland jurors and a judge who, though initially appointed by the governor, must face Maryland voters to be retained.

While the law must be applied fairly by the courts of all states, trial attorneys are mindful that local biases can sometimes play a crucial difference in close cases. Should the ACC win in North Carolina, watch for Maryland to attempt to convince a Maryland court to hear similar claims.

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Preliminary approval of NFL concussion settlement denied

Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania has denied preliminary approval of the $765 million settlement in the concussion lawsuit. Brody was concerned that there would not be sufficient funds to cover even 10 % of former players who ultimately receive qualifying diagnoses, given the proposed length and scope of the settlement pool. She also dropped a footnote expressing additional concerns, still to be addressed, about the adequacy of the funds and the release of the NCAA and other amateur football organizations. The denial was without prejudice and the parties will be able to offer further documentation to show adequacy.

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More on the Infield Fly Rule

This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.

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U.S Supreme Court grants cert in ABC v. Aereo: Impact on NFL and MLB Broadcasts?


Last Friday, the U.S. Supreme Court granted cert in ABC v. Aereo, a copyright case which the NFL and MLB say could lead to them taking all their games off of free FV and onto cable.  Sports Illustrated writer and media expert Richard Deitsch asked me to analyze the case in his latest SI column.  My 500-word take is at the end of his piece.  Here's an excerpt:
...Major television networks, including ABC, CBS, NBC, Fox and PBS, have joined together to sue Aereo, a technology company that provides paying subscribers with antennas to receive and record live streamed broadcasts on their computers, tablets, AppleTVs and other devices. Aereo is only available in 10 markets—Atlanta, Baltimore, Boston, Dallas, Denver, Detroit, Houston, Miami, New York City and Salt Lake City— and, depending on the market, provides between 15 and 50 channels, none of which are sports channels. Aereo's controversy stems from the fact that it does not pay fees to stream (retransmit) network programming ... 

...The leagues ominously warn that if Aereo is ruled lawful, they will eventually shift all of their game broadcasts to cable stations outside of Aereo's reach...

...[But] by moving all of its games to cable, the NFL would lose the [Sports Broadcasting Act]'s exemption's protection and open itself up to years of antitrust litigation.  
To read the rest, click here.

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Legal Strategy for Alex Rodriguez after Suspension Reduced to entire 2014 season

I have a new article for SI.com that examines the reduction in Alex Rodriguez's suspension and outlines his legal strategy going forward.  Here is an excerpt:

Rodriguez's attorneys are also likely to struggle to prove the necessary elements for a preliminary injunction. A judge would balance four factors in reviewing whether to grant an injunction.

First, Rodriguez would have to show he has a substantial likelihood of success on the merits. The problem for Rodriguez is that federal courts are highly deferential to arbitration rulings and Horowitz is both experienced and respected. Rodriguez would have to supply compelling evidence that Horowitz exhibited what's known as a "manifest disregard of the law" in his decision-making. This standard usually requires a showing that the arbitrator made an egregious error in evaluating the evidence or otherwise ignored basic legal principles. It seems unlikely that Horowitz made such an error. Rodriguez may highlight how Selig avoided having to testify, but it's unclear why Selig "had" to testify to make the arbitration valid. Selig, according to published reports, has never testified in an arbitration related to performance-enhancing drugs. 

In addition, the fact that the players' association did not formally challenge Selig's absence does not help Rodriguez's case. Rodriguez would also assert that MLB strategically leaked information to sympathetic media members as a way of undermining his chances in arbitration, but proving such a claim with actual evidence would be difficult. 

To read the rest, click here.

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Legal Analysis of Heisman Trophy Winner Jameis Winston Facing Civil Lawsuit

Jameis Winston avoided criminal charges for rape, but could soon be facing a civil suit from his accuser.I have a new article for SI.com on news that a woman who has accused Jameis Winston of sexual assault plans on suing him, along with the Tallahassee Police Department and Florida State University.  Here's an excerpt:

Not only would a lawsuit be time-consuming for Winston, it may also reveal damaging information about him. This is especially true during pretrial discovery, which would take place if Winston's attorneys fail to convince a judge to dismiss the lawsuit. Pretrial discovery would compel Winston to answer sensitive questions under oath and provide text messages, emails and other communications. He would have to discuss the night of the alleged rape and other intimate topics, such as his sexual history and use of alcohol and drugs. While pretrial discovery is generally confidential, the media would aggressively try to uncover any inflammatory information. This information might hurt Winston's reputation with many, including Heisman voters, NFL teams and companies that might eventually want to sign him to an endorsement contract. 

To read the rest, click here.

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You can't make this up

A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs. The man, apparently a Steelers fan, is angry that the Chargers made the playoffs when they beat the Chiefs in Week 17 in overtime, after the Chiefs kicker missed a field goal as regulation expired, a play on which an illegal-formation penalty should have been called, giving the Chiefs a re-kick.

The motion argues that the league acts fraudulently and negligently in limiting team challenges. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).

The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk is that many prisoners react worse when you do give their papers merits analysis and they still lose.

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Intentional non-scores

In a forthcoming paper (due to be published the day after the Super Bowl), I apply the cost-benefit model I created to justify the infield fly rule to football. I examine plays in which players have an incentive to gain a heavy advantage by acting contrary to ordinary athletic expectations and when rule makers should step in to prevent these unexpected plays. One situation I discuss is the incentive for teams to intentionally not score when given the chance, choosing instead to delay scoring in favor of running more time off the clock before trying to score the tying or winning points.

At Slate, Brian Burke runs the numbers on whether Auburn's Tre Mason should have kneeled on the one yard line rather than scoring with 1:19 remaining and Auburn trailing 27-24. He concludes he should not have, based on (admittedly conservative) estimates of Auburn's likelihood of scoring the game-winning touchdown from the one.

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Sports Law Analytics - NBA Referees Edition

Another NBA player was recently fined for criticizing the league's on-court referees.  This recent example involved Nate Robinson of the Denver Nuggets.  Late last year, I penned a short piece for The Atlantic on why individuals should "think twice" before making allegations of referee bias.  While the primary focus of my article was on possible referees bias, I also touch on the importance of disseminating negative results in academia.  The latter is a topic I will expand upon more in a future paper. 

     

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The greatest sports law story of all time

When the NBA and ABA merged in 1976, the excluded ABA teams had to be bought out. The owners of the Spirits of St. Louis, Ozzie and Daniel Silna, took less cash (about $2.2 million, compared with the $ 3 million the Kentucky Colonels recived) while receiving 1/7 of future TV revenue for the four ABA teams that joined the NBA (Nets, Spurs, Pacers, and Nuggets) in perpetuity. The NBA has been trying to get out of the deal for 30+ years, which has so far paid the owners $ 300 million.

Now it appears they are close to a deal that will pay the owners $ 500 million to go away. ESPN's 30 for 30 had a fun episode on the Spirits that discussed the deal.

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Why a Win for the Plaintiffs in the O'Bannon Case Will Not Destroy College Sports as the NCAA Suggests

NCAA leaders have argued both in court and through the media that a win for the plaintiffs in the NCAA Student-Athlete Name & Likeness Licensing Litigation (f/k/a O'Bannon v. NCAA) would "destroy college sports for the majority" -- I clam that I find to be disingenuous.

With that said, it is my pleasure to announce publication of the first draft of my newest law review article, "The Future of Amateurism after Antitrust Scrutiny."  This article explains why a plaintiffs' victory in the NCAA Student-Athlete Name & Likeness Licensing Litigation would not truly destroy either the competitive balance or financial viability of college sports.

Some of the points expressed in the article include the following:
  • The college sports industry already lacks year-to-year competitive balance.
  • The college sports industry already lacks seasonal competitive balance.
  • Lack of competitive balance does not truly translate into poor attendance or revenues.
  • There are less restrictive ways to protect competitive balance in college sports.
  • College sports fans do not truly care if student-athletes are unpaid.
  • Title IX arguments are simply red herrings.
  • There is enough revenue to go around, even after free market negotiations with student-athletes.
This article is only a "first draft," so I would appreciate any comments or feedback. 

My previous article on the NCAA's concerted practices, "A Short Treatise on Amateurism and Antitrust Law," went to print last month in Case Western Reserve Law Review.  Reader feedback was truly helpful for me in fine-tuning that piece.

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Legal Fallout of Chris Kluwe's Allegations

Howard blogged earlier on Chris Kluwe's allegations against the Vikings, specifically that he was cut because of his views on marriage equality. I was on SI Now earlier today to talk about the potential legal fallout:

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Athlete speech of a different kind

Not all athlete speech is offensive. Some athletes do speak out for worthy political ideals, even if it comes with a price. Chris Kluwe, formerly a punter for the Minnesota Vikings, was an outspoken advocate for marriage equality. He was released by the Vikings last spring amid obvious questions about any connection between his activism and his release. Although Kluwe has always said some version of "I don't know" when asked about the connection, in a piece on Deadspin Thursday he says he is "pretty confident" his activism was the reason he was fired.

In the article, Kluwe describes not-so-subtle pressure from (now former) Vikings head coach Leslie Frazier and GM Rick Spielman to stop speaking out on marriage equality or gay rights and outright anti-gay bigotry by special teams coach Mike Priefer, including telling a roomful of players "We should round up all the gays, send them to an island, and then nuke it until it glows." The Vikings deny that Kluwe's release was based on anything other than his performance, but have promised to investigate (owner Zygi Wilf is a strong supporter of marriage equality). Priefer issued his own statement "vehemently" denying Kluwe's allegations. Stay tuned; this could cast another interesting light on athlete speech and the culture of NFL locker rooms.

[Update: The Vikings have hired a former chief justice of the Minnesota Supreme Court and a former DOJ attorney (who previously lead the investigation into misconduct by Fiesta Bowl officials) to conduct the investigation. If I had to predict an outcome, it would be that there will be insufficient evidence to support Kluwe's allegations of a retaliatory firing, but that if any evidence corroborates Priefer's "nuke it" comment, he will lose his job in Minnesota (although almost certainly will coach again, because that is just how football works).]

One other thing I'll highlight from Kluwe's original piece. He describes a conversation in which Frazier strongly urged him to stop speaking on this, allegedly saying, "'a wise coach once told me there are two things you don't talk about in the NFL, politics and religion.'" Given the blatant role that Christianity plays in football, including in the NFL, this may be one of the dumbest things ever said.

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