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DOJ Argues No Such Thing as "Unregulated" Sports Betting Since Casinos & Racetracks Still Subject to Licensing Requirements; Backtracks on Prior Statements that NJ Free to Repeal Sports Betting Ban

Late last night, the United States Department of Justice (the "DOJ") filed its memorandum of law in opposition to New Jersey's motion to clarify and/or modify the federal court injunction that has been in place since February 28, 2013 prohibiting the State from authorizing, licensing or regulating sports wagering at casinos and racetracks.

The DOJ's opposition brief largely mirrors the Leagues' brief filed earlier in the day, but it is noteworthy in two respects. First, as expected, the DOJ argues that any "repeal" of the state-law prohibition on sports wagering which is limited solely to casinos and racetracks would still run afoul of the Professional and Amateur Sports Protection Act ("PASPA") because New Jersey's casinos and racetracks remain subject to an extensive licensing and regulatory scheme by the State. Thus, as the DOJ points out, "even under an attempted reformulation of the Sports Wagering Act, it would still be impossible to operate a sports wagering pool without first having a State-issued license." The DOJ argues that "[a]s long as the only entities that may engage in sports wagering must be licensed by New Jersey, New Jersey is in effect licensing sports wagering, which is squarely within PASPA's licensing prohibition."

Second, the DOJ backtracks from its prior statements that New Jersey is free to repeal its state-law prohibition against sports wagering "in whole or in part" without violating PASPA. As I detailed in an earlier post, the DOJ (through U.S. Attorney Paul Fishman and U.S. Solicitor General Donald Verrilli, Jr.) made these unequivocal statements throughout the prior judicial proceedings, including in appellate briefing before the Third Circuit, at oral argument, and in a filing made with the U.S. Supreme Court. In his Third Circuit brief, Mr. Fishman wrote that "nothing in [PASPA] requires New Jersey to maintain or enforce its sports wagering prohibitions." Later, when asked at the June 26, 2013 oral argument whether New Jersey could "repeal" its ban against sports wagering, Mr. Fishman responded "[a]s a matter of law, it could." When further pressed by the Third Circuit panel if such a repeal would violate PASPA, Mr. Fishman responded by saying "no." The U.S. Solicitor General reaffirmed this position ten months later in a filing with the Supreme Court when he stated that "PASPA does not even obligate New Jersey to leave in place state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part." (United States Brief to the Supreme Court in Opposition to Petitions for Writ of Certiorari (Nos. 13-967, 13-979 & 13-980), dated May 14, 2014, at p. 11)

How does the DOJ retreat from such clear and unequivocal statements? Easy. By ignoring two of them, and pointing to less damaging statements that are susceptible to differing interpretations. On page 17 of its opposition brief, the DOJ identifies three "selectively quoted" statements that New Jersey cites as evidencing the DOJ's acknowledgement that a partial repeal of the state-law prohibition on sports betting would not violate PASPA:

On page 28 of the appellate brief for the United States; Nothing in the statute requires New Jersey to maintain or enforce its sports wagering prohibitions." 
"On page 30 of the appellate brief for the United States: "[T]he bare repeal or non-enforcement of New Jersey's sports wagering prohibitions would not constitute such an 'authorization' because there would be no State statute or compact granting anyone authorization. to conduct sports wagering."
 At pages 68 and 69 of the appellate oral argument transcript; "[I]f New Jersey wants to tinker with its gambling statute in a reasonable exercise of state law and enforcement power, it's perfectly free to do that."
(DOJ Brief, p. 17)

While accusing New Jersey of using "selectively quoted" statements, isn't the DOJ guilty of the same thing here? There is no mention of Mr. Fishman's acknowledgment at oral argument that New Jersey was free to repeal its sports betting ban and that doing so would not violate PASPA. Nor is there any reference to the U.S. Solicitor General's incredible statement (from his Supreme Court filing) that New Jersey is free to repeal its state-law prohibitions "in whole or in part." It's as if the DOJ used hydrofluoric acid (Walter White-style) to make those prior statements disappear.

The DOJ offers an entirely unconvincing explanation as to the import of those prior statements (at least the ones that the DOJ has chosen to address). The DOJ contends that New Jersey has "misread" those statements and that it meant only to say that New Jersey has "options" when it comes to sports betting:
"These identified quotations reflect the United States' acknowledgment that New Jersey has options regarding sports wagering if it wishes to forego the licensing and the authorizing by law of sports wagering (as well as the other conduct prohibited by PASPA). The presence of those options demonstrates that there is no unconstitutional compulsion as New Jersey incorrectly suggests."
(DOJ Brief, pp. 17-18)

This does not even pass the giggle test. Expect New Jersey to hammer the DOJ on this point in its Reply Brief. But that doesn't necessarily mean that New Jersey will prevail on its motion. Far from it. As I wrote previously, I expect New Jersey's motion to be denied. It's not even a close call, as New Jersey's "implied repeal" and "severability" arguments are rather flimsy. But the real danger here is that Judge Shipp may go even further than just denying New Jersey's motion; he may clarify the injunction in a manner that is detrimental to New Jersey's future legislative efforts. For example, he could broaden the injunction to include language stating that while New Jersey is free to repeal its state-law prohibition against sports betting, it cannot limit such repeal to the State's racetracks and casinos given that they remain subject to an extensive state licensing and regulatory regime. Given the low likelihood of success, maybe New Jersey's best play here is to simply withdraw the motion, and focus on more legally sustainable efforts to bring sports betting to the Garden State. The moral of this story: Be careful what we wish for.

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Sports Leagues Push Back on New Jersey's Latest Sports Betting Gambit

In a post two weeks ago, I analyzed Governor Christie's latest strategy for bringing single-game sports betting to the Garden State: by arguing in a federal court motion that the state-law prohibitions against sports wagering have already been repealed through the enactment of the New Jersey Sports Wagering Law, even though that particular legislation was found by two different federal courts to be preempted by the Professional and Amateur Sports Protection Act. ("PASPA"). Governor Christie had argued, I believe unconvincingly, that the portion of the legislation allowing casinos and racetracks to "operate sports pools" could be "severed" from the portion of the law authorizing the state to "license" sports betting (the part found to be in express conflict with PASPA).

Earlier today, the four major professional sports leagues and the NCAA filed their joint response in opposition to Governor Christie's motion. The Preliminary Statement wastes no time laying waste to the Governor's main legal arguments. Here are some of the highlights:
  • "This motion reflects defendants' latest unlawful attempt to authorize sports wagering in New Jersey's casinos and racetracks."
  • "Contrary to this Court's decision and defendants' prior position -- as well as to the very words of the Sports Wagering Law itself -- the Governor takes the astounding position that, in providing that casinos and racetracks 'may operate a sports pool," the Sports Wagering Law does not 'authorize' sports wagering, but simply repeals the State's existing prohibition on sports wagering. This despite the fact that throughout the litigation, defendants consistently asserted that the Sports Wagering Law authorized casinos and racetracks to operate sports wagering games."
  • "Moreover, even in their current motion, defendants expressly acknowledge that sports pools operated by racetracks and casinos pursuant to the Sports Wagering Law would be subject to all of the laws and regulations that apply to those venues, including the extensive legislation and licensing and regulatory scheme addressing gambling in New Jersey's Casino Control Act, N.J. Stat. Ann. s 5:12-1 et seqIn other words, this Court's injunction has no practical effect whatsoever on New Jersey's ability to accomplish precisely what PASPA prohibits."
In the main portion of their opposition brief, the Leagues characterize New Jersey's implied repeal argument as both "improper" and "disingenuous," pointing to the plain language of the Sports Wagering Law, the two prior court rulings, statements made in the defendants' prior court filings, and the recent unsuccessful legislative repeal efforts:
  • "The plain language of the Sports Wagering Law readily refutes defendants' new reading, as the phrase 'may operate' is as clear an authorization as one could imagine. In fact, both this Court and the Third Circuit have recognized that the Sports Wagering Law is an attempt to authorize sports gambling, not to 'repeal' existing prohibitions."
  • "So, too, have defendants, who repeatedly represented--including throughout this litigation--that the Sports Wagering Law does in fact seek to authorize sports gambling."
  • "Immediately after this litigation (seemingly) concluded, the State Legislature attempted to enact legislation that purported to repeal sports wagering prohibitions at casinos and racetracks--legislation that would have been wholly unnecessary had the Sports Wagering Law accomplished that end."
On the related issue of "severability," the Leagues argue that the defendants' attempt to sever only five words ("may operate a sports pool") from the Sports Wagering Law's authorization of sports wagering "utterly misconstrues" the doctrine of severability. As the Leagues explain in their joint response, "[t]he critical inquiry for severability is legislative intent, which 'must be determined on the basis of whether the objectionable feature of the statute can be excised without principal impairment of the principal object of the statute.'" 

The Leagues argue that the legislative intent behind the Sports Wagering Law was to enact a "licensing regime" that would shift illegal economic activity into legal channels where it could be monitored, regulated and appropriately taxed. They point to the 2010 public hearings during which legislators "expressed a desire to 'stanch the sports-wagering black market flourishing within New Jerseys borders.'" And, as icing on the cake, the leagues quote directly from a Third Circuit brief filed by two New Jersey legislators (Stephen M. Sweeney and Sheila Oliver) in which they stated that unregulated sports betting "would be contrary to the considered judgment of the Legislature and the expressed desire of their constituents." Based on the foregoing, the Leagues conclude that "Defendants--and this Court--cannot, consistent with legislative intent underlying the Sports Wagering Law, sever the law's provision authorizing casinos and racetracks to operate sports gambling from its requirements that any sports gambling in New Jersey (i) be authorized and approved by the [state regulators]; and (ii) conform to the licensing requirements of the Casino Control Act and the regulations promulgated thereunder."

The Leagues also take issue with the notion that there can ever be such a thing as "unregulated" sports betting at New Jersey's casinos and racetracks, since they would still remain subject to an extensive licensing and regulatory regime in New Jersey (whether there is sports betting or not). Indeed, the Leagues stress, "virtually every detail concerning the operation of casinos and racetracks is heavily regulated by both State law and by regulations promulgated by the DGE and Racing Commission." For example, State regulations upon casinos and racetracks include licensing and permitting requirements, specifications on equipment used for gambling, and payment to the State of a portion of revenue derived from casino and racetrack wagering. As the Leagues point out, even the defendants have stated that these requirements "will apply equally to sports wagering if the provision of the Sports Wagering Law providing that casinos and racetracks 'may operate a sports pool' is reinstated. Thus, the Leagues argue that this would leave New Jersey "free to accomplish precisely what the Sports Wagering Law was enacted to achieve: state-regulated sports wagering in casinos and racetracks," adding that "[n]ot only is [such a] result flatly inconsistent with this Court's injection, it is flatly inconsistent with PASPA." 

Finally, the Leagues argue that, under no circumstances, could sports wagering be conducted at Monmouth Park or at the Meadowlands because those two racetracks are owned and operated by the New Jersey Sports and Exposition Authority, a state governmental entity. Based on the state's ownership of those racetracks, the Leagues contend any sports wagering conducted at either the Monmouth Park or at the Meadowlands "would violate the provisions of PASPA that prohibit a State from directly sponsoring, operating, or advertising sports wagering, regardless of whether those facilities purport to offer gambling pursuant to a state authorization or a state repeal."

As of the this writing, the Department of Justice has not yet filed its response brief. But if past practice is any indication, I would expect the DOJ to file a response shortly (i..e, before midnight tonight).

New Jersey is now on the clock, with its Reply Brief due on October 10.

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Article in this week's issue of Sports Illustrated on NFL Tax exempt status

I hope you have a chance to check out this week's issue (September 29, 2014) of Sports Illustrated - I have an article on new legislative proposals in Congress to end the NFL's tax exempt status. My piece is on page 28, right before Tom Verducci's cover story on Derek Jeter. While I'm often critical of the NFL, I'm not convinced that amending 501(c)(6) to punish the NFL for domestic violence issues or to force a change to the Redskins name is the best vehicle of addressing those issues.

Keep in mind, almost all of the $9.5 billion generated annually by the NFL is already subject to income taxes (the NFL uses four for-profit subsidiaries to generate most of the league's revenue, and the 32 for-profit teams generate almost all of the rest of the revenue; the NFL itself--which is the tax-exempt entity--has reported losses in two of the last three years). Also, other pro leagues, including the U.S. Golf Association and PGA Tour, would likely be more affected by some of these legislative changes, and they are not the primary intended targets of the legislative proposals. Lastly, non-sports entities protected by 501(c)(6) operate similarly to the NFL as trade associations of for-profit companies.

To read the article you'll need to subscribe to SI or pick up this week's issue.

Here's an excerpt of the article:

Taxing the league office would lead to modest tax income at best. In the last three tax filings that are publicly available, the NFL reported income of $9 million in 2012, and losses of $77.6 million in 2011 and $52.2 million in 2010. How could the NFL lose money? Because the NFL doesn’t make money. The NFL’s main source of revenue is the membership dues paid by the teams, approximately $6 million each. This revenue is used to pay the hefty salaries of league executives, including commissioner Roger Goodell, who earned $85 million in compensation from 2010 through ’12 (on which he paid personal income tax). The dues also pay rent for the NFL’s New York City offices.

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Bright Days in the MLB

            What are the odds? Baseball’s most beloved hero is playing his last game in the media capital of the world and America is watching. His team is ahead by 3 runs in the ninth. On the mound is the Yankees All Star closer, David Roberts, the heir apparent to Mariano, who has given up just 5 homers in 63 innings. He grooves a high fastball to Adam Jones, a high ball hitter, who hits a moon shot over the left field fence to bring the Orioles to within one run. Then with two outs, he grooves another down the middle of the plate to Steve Pierce. Game tied.

            Bottom of the ninth. The Orioles need the win to secure home field advantage in the playoffs. Nevertheless, two time manager of the year Buck Showalter (and a clinch to win his third) calls to the mound aptly named Evan Meek,  O and 4 for the year with a 5.79 ERA. Yankee Jose Pirela, first up,  strokes a single to left. Antoan Richardson, called on to pinch run, reaches second when Brett Gardner lays down the perfect sacrifice bunt. Now Jeter walks to the plate with the crowd on its feet and Jeter’s long time mates Jorge Posada, Andy Pettit and Mariano Rivera waiting stage left. First pitch right down the middle and the Captain slices a ground ball into right field. Nick Markakis plays it perfectly and fires a strike to the catcher who cannot take in the throw. Ball game over. The hero is rushed by his teammates. The perfect ending to a perfect career. Almost too perfect.

            Sources close to me are convinced this was all some elaborate conspiracy. Just Google “Derek Jeter conspiracy” and browse through the 10s of thousands of hits. Others say Jeter has made a career out of being in the perfect place at the perfect time. He does have nine other walk offs including one in game 4 of the 2001 World Series.

            Let’s just say we all needed a feel good moment at a time when the news lately, including the sports news, has been rather troubling. And it happened on Rosh Hashanah, the birthday of the universe. So what was one more miracle for the maker of miracles.

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UNH Law Panel: Put the Coach on the Line

I'm very excited about our upcoming Sports and Entertainment Law Institute panel at the University of New Hampshire School of Law. The panel, titled Put the Coach on the Line, is based on a paper authored by UNH Law third-year student John DeWispelaere. Through empirical research, John argues that NHL coaches should be punished when they send out players to injure others. John's paper has just been accepted for publication in the Virginia Sports and Entertainment Law Journal. Congrats to John on this outstanding placement!

The event will be held on October 22 at 5:30 pm and will be open to the public. We hope to see you there!

Put the Coach On the Line:  An Alternative Approach to Increasing Player Safety in the NHL

Put the Coach On the Line: An Alternative Approach to Increasing Player Safety in the NHL

Put the Coach on the Line: An Alternative Approach to Increasing Player Safety in the NHL

This event is open to the public.
Please RSVP to Mary O’Malley, faculty assistant to the Franklin Pierce Center for Intellectual Property, atmary.omalley@law.unh.edu.

Schedule of Events

Alexandra J. Roberts
5:30 p.m.
Opening remarks by Alexandra J. Roberts, Assistant Professor of Intellectual Property,
Executive Director, Franklin Pierce Center for Intellectual Property
John DeWispelaere
5:35 p.m.
Third-year UNH Law student and Becker & Poliakoff legal resident John DeWispelaere presents his forthcoming law review article, “Put The Coach on the Line: An Alternate Approach to Increasing Player Safety in the NHL.” The article will be published this fall in the Virginia Sports and Entertainment Law Journal, a publication of the University of Virginia School of Law. 
5:45 p.m.
Second-year UNH Law student and The Pink Puck associate editor and writer Jessica Higham offers a response
Michael McCann
6:00 p.m.
Panel discussion, moderated by Michael McCann, Professor of Law,
Director, Sports and Entertainment Law Institute

with panelists:

Dmitry Chesnokov
Dmitry Chesnokov, Sports and entertainment attorney at Hobson Bernardino + Davis LLP and NHL writer for Yahoo! Sports
Paul Kelly
Paul Kelly, Shareholder at Jackson Lewis and former Executive Director of the National Hockey League Players’ Association
Gregory Moffett
Gregory Moffett, Director at Preti Flaherty and former goaltender in the Montreal Canadians system
Michael Wall
Michael Wall, Vice President, General Counsel, and Corporate Secretary of Performance Sports Group/Bauer and former Chief Legal Officer of the TD Garden and the Boston Bruins
Eleanor MacLellan
7:15 p.m.
Networking Reception
Directed by Assistant Dean of Career Services Eleanor MacLellan in the Douglas Wood Boardroom

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Should League Commissioners Even Have a Role in Disciplining Players for Off-Field Misconduct?

One of the more interesting points I heard from the NFL commissioner during his "breaking news report" last week was that the NFL would begin looking into the use of independent experts in the process of imposing discipline on players for off-field misconduct.  On this blog in 2007, I posed the question whether the NFL's personal conduct policy affords the commissioner too much discretion.   In my post, I discussed some of the inherent problems and concerns associated with league discipline of players for off-field misconduct.  The NFLPA and the NFL would both benefit from a collectively bargained system of independent impartial review, and perhaps they are moving in that direction.

My question today takes it a step further and asks whether league commissioners should even have a role in player discipline for off-field misconduct.  In other words, should the leagues get out of the business of suspending players for their misdeeds that occur off the field?  The NCAA, for example, draws a line between off-field and on-field behavior and takes the position that discipline for the off-field misconduct is the responsibility of the individual schools.

I have always questioned whether such discipline at the league level even falls within the overall purpose for which the league has been formed and whether it is more appropriate for such discipline to be left at the employer/employment level.  Why is it the league's business or concern how a club decides to resolve an off-field misconduct issue with its player?  The justification for it seems to be that off-field misconduct impacts the league's reputation and image -- a proposition that I have never fully accepted.  But nonetheless, why can't we assume that each club has an incentive to do what is appropriate from an image/reputation standpoint and make a good business decision under the facts and circumstances of each case?  If the club makes a bad or wrong decision, then the club bears any negative consequences that might flow from it, as it should.

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Tony Stewart's future after grand jury declines to charge him

I have a new column for Sports Illustrated on a grand jury declining to charge Tony Stewart, who still faces a likely wrongful death lawsuit.

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The NFL, Ray Rice and Sports Law through Press Conferences

In a new column for Sports Illustrated, I take issue with press conferences by NFL commissioner Roger Goodell and Baltimore Ravens owner Steve Bisciotti.

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New Sports Law Scholarship

Recently published scholarship includes: 
Jennifer M. Adams, Comment, Flag on the play: professional sports teams calling trademark infringement on their superfans, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 631 (2013) 
Jeremy R. Abrams, Comment, Making the right call:  why fairness requires independent appeals in U.S. professional sports leagues, 97 MARQUETTE LAW REVIEW 469 (2013)  
Jack Anderson, The right to a fair fight: sporting lessons on consensual harm, 17 NEW CRIMINAL LAW REVIEW 55-75 (2014) 
Erin P. Andrews, Note, Avoiding the technical knockout: tackling the inadequacies of youth concussion legislation, 58 NEW YORK LAW SCHOOL LAW REVIEW 417 (2013/2014)
Francis X. Baker, Comment, “Half mental”: resolving the risks posed by dual competencies in applied sport psychology, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 185 (2014) 
Daniel Berger, Constitutional combat: is fighting a form of free speech? The Ultimate Fighting Championship and its struggle against the state of New York over the message of mixed martial arts, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 381(2013) 

Daniel Bernard, Note, The NFL’s stance on gambling: a calculated contradiction, 4 UNLV GAMING LAW JOURNAL 273 (2013) 
Babette Boliek, Antitrust, regulation, and the “new” rules of sports telecasts, 65 HASTINGS LAW JOURNAL 501 (2014) 
Benjamin S. Bolas, Comment, Who is going to pay the Bills: an examination of the financing and lease options available to the Buffalo Bills and Ralph Wilson Stadium, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 663 (2013) 
Justin B. Bryant, Note, Analyzing the scope of Major League Baseball’s antitrust exemption, 89 NOTRE DAME LAW REVIEW 1841 (2014) 
Angela Casey Brosnan, Casenote, Remember the Titan: Matthews v. NFL leaves the playing field wide open for future compensation claimants, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 91 (2014) 
Caitlin D. Buckstaff, Note, Covering the spread: an assessment of amateurism and vulnerability of student-athletes in an emerging culture of sports wagering, 16 VANDERBILT JOURNAL ENTERTAINMENT & TECHNOLOGY LAW 133 (2013) 
Micah Bucy, Comment, The costs of the pay-to-play model in high school athletics, 13 UNIVERSITY OF MARYLAND LAW JOURNAL RACE, RELIGION, GENDER & CLASS 278 (2013) 
Sam Ivo Burum, Comment, Yes, NBA players should make more money: how the NLRB can change the future of collective bargaining agreements in professional sports, 63 AMERICAN UNIVERSITY LAW REVIEW 845 (2014) 
Matthew R. Cali, Comment, The NCAA’s transfer of power: an analysis of future implications the proposed NCAA transfer rules will have on the landscape of college sports, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 217 (2014) 
Thomas Wyatt Cox, Note, The international war against doping: limiting the collateral damage from strict liability, 47 VANDERBILT JOURNAL OF TRANSNATIONAL 295 (2014) 
Nigel G. Crocombe, Note, Building a new future: the 2022 FIFA World Cup as a potential catalyst for labor reform in Qatar, 37 SUFFOLK TRANSNATIONAL LAW REVIEW 33 (2014) 
Christopher R. Deubert, et al., National Football League general managers: an analysis of the responsibilities, qualifications, and characteristics, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 427 (2013) 
Vincent J. DiForte, Note, Prevent defense: will the return of the multiyear scholarship only prevent the NCAA’s success in antitrust litigation?, 79 BROOKLYN LAW REVIEW 1333 (2014) 
Brian A. Dziewa, Comment, USADA the unconquerable: the one-side nature of the United States Anti-Doping Administration’s arbitration process, 58 ST. LOUIS UNIVERSITY LAW JOURNAL 875 (2014) 
Marc Edelman, A short treatise on amateurism and antitrust law: why the NCAA’s no-pay rules violate section 1 of the Sherman Act, 64 CASE WESTERN RESERVE LAW REVIEW 61(2013) 
Adam Epstein, Missouri sports law, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 495 (2013) 
Gabe Feldman, A modest proposal for taming the antitrust beast, 41 PEPPERDINE LAWREVIEW 249 (2014) 
Brian R. Gallini, Bringing down a legend: how an “independent” grand jury ended Joe Paterno’scareer, 80 TENNESSEE LAW REVIEW 705 (2013) 
Bryan Gottlieb, Comment, Avoiding contractual liability to baseball players who have used performance enhancing drugs: can we knock it out of the park?, 77 ALBANY LAW REVIEW 615 (2013-2014) 
William B. Gould,IV, Bargaining, race, and globalization: how baseball and other sports mirror collective bargaining, law, and life, 48 U.S.F. LAW REVIEW 1 (2013) 
Thomas J. Grant, Jr., Comment, Green monsters: examining the environmental impact of sports stadiums, 25 VILLANOVA ENVIRONMENTAL LAW JOURNAL 149 (2014) 
Edward H. Grimmett, Comment, NCAA amateurism and athletics: a perfect marriage or a dysfunctional relationship? — An antitrust approach to student-athlete compensation, 30 TOURO LAW REVIEW 823 (2014) 
Randy Haight, Alleging an anticompetitive impact on a discernible market: changing the antitrust landscape for collegiate athletes, 21 JEFFREY S. MOORAD SPORTS LAWJOURNAL 19 (2014) 
Martin Hardie, Making visible the invisible act of doping, 27 INTERNATIONAL JOURNAL FOR SEMIOTICS LAW 85-119 (2014) 
M.Mark Heekin and Bruce W. Burton, When is minority not minority: NCAA ignores two centuries of Anglo-American contract law respecting legal status, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 39 (2014) 
Nathan M. Hennagin, Note, Blackout or blackmail? How Garber v. MLB will shed light on Major League Baseball’s broadcasting cartel, 8 BROOKLYN JOURNAL CORPORATE, FINANCIAL & COMPARATIVE LAW 158 (2013)  
Aaron Hernandez, Note, All quiet on the digital front: the NCAA’s wide discretion in regulating social media, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 53 (2013) 
Josh Hunsucker, Comment, Buckle your chinstrap: why youth, high school, and college football should adopt the NFL’s concussion management policies and procedures, 45 MCGEORGE LAW REVIEW 801 (2014) 
Kevin Kehrli, Note, The unspecified specificity of sport: a proposed solution to the European Court of Justice’s treatment of the specificity of sport, 39 BROOKLYN JOURNAL INTERNATIONAL LAW 403 (2014) 
Timothy L. Kianka, Casenote, Atwater v. NELPA: casting doubt on the effect of exculpatory language in collective bargaining agreements, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 125 (2014) 
Jonathan H. Koh, Note, Performance-enhancing drugs in boxing: preventing the sweet science from becoming chemical warfare, 87 SOUTHERN CALIFORNIA LAW REVIEW 335 (2014) 
Lia M. Krautmanis, Filling the gap: a call for legislative action and community mobilization to implement physical education requirements in colleges and universities, 15 SCHOLAR 797 (2013)  
Konrad R. Krebs, Casenote, ESPN v. Ohio State: the Ohio Supreme Court uses FERPA to play defense for offensive athletic  programs, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 573 (2013) 
Daniel E. Lazaroff, An antitrust exemption for the NCAA: sound policy or letting the fox loose in the henhouse?, 41 PEPPERDINE LAW REVIEW 229 (2014) 
Samantha Levin, Comment, Tweet tweet: a First Amendment wake up call regarding social media in the sports arena, 30 JOHN MARSHALL JOURNAL INFORMATION TECHNOLOGY & PRIVACY LAW 117 (2013) 
Sara M. Lewis, Comment, Man, machine, or mutant: when will athletes abandon the human body?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 717 (2013) 
Jacqueline R. Liguori, Casenote, Sticking the landing: How the Second Circuit’s decision in Biediger v. Quinnipiac Univ. can help competitive cheerleading achieve “sport” status under Title IX, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 153 (2014) 
John Loughney, Note, Major League Baseball and the green revolution: a market-based approach to maintaining competitive balance in the face of environmental regulations, 38 WILLIAM AND MARY ENVIRONMENTAL LAW AND POLICY 709 (2014) 
Abigail M. Mabry, Note, Title IX: proportionality and walk-ons, 44 UNIVERSITY OF MEMPHIS LAW REVIEW 497 (2013) 
Christopher Marquis, Note, An equal playing field: the potential conflict between Title IX & the Massachusetts Equal Rights Amendment, 34 B.C. JOURNAL OF LAW & SOCIAL JUSTICE 77 (2014) 
          Michael McCann, Do You Believe He Can Fly?, Reasonable Accommodations Under the
          Americans with Disabilities Act for NBA Players with Anxiety Disorder,  41 PEPPERDINE 
          LAW REVIEW 397 (2014)

          Kiersten McKoy, Comment,  Biediger v. Quinnipiac University, 58 NEW YORK LAW 
          SCHOOL LAW REVIEW 457 (2013/2014) 
Christopher Miner, Comment, Fantasy sports and the right of publicity are under further review, 30 TOURO LAW REVIEW 789-821 (2014) 
Matthew J. Mitten, The Penn State “consent decree”: the NCAA’s coercive meansdon’t justify its laudable ends, but is there a legal remedy?, 41 PEPPERDINE LAW REVIEW 321 (2014) 
Steven Olenick et al., Finding a solution: getting professional basketball players paid overseas, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2013) 
Theodore J. Patton, Going for it on fourth and long: gambling public funds on a new Vikings stadium, 7 U. ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY 240 (2013) 
Matthew T. Poorman, Note, Get with the Times: why defamation law must be reformed in order to protect athletes and celebrities from media attacks, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 67 (2013) 
Nick Rammell, Comment, Title IX and the dear colleague letter: an ounce of prevention is worth a pound of cure, 2014 BYU EDUCATION & LAW JOURNAL 135   
Cailyn M. Reilly, Where is concussion litigation headed? The impact of Riddell, Inc. v. Schutt Sports, Inc. on brain injury law, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 517 (2013) 
Robert J. Romano, Analyzing the United States--Japanese Player Contract Agreement: is this agreement in the best interest of Major League Baseball players and if not, should the MLB Players Association challenge the legality of the Agreement as a violation of federal law?, 15 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 19 (2013) 
Stephen F. Ross et al., Judicial review of NCAA eligibility decisions: evaluation of the Restitution Rule and a call for arbitration, 40 JOURNAL OF COLLEGE AND UNIVERSITY LAW 79 (2014) 
M. Alexander Russell, Note, Leveling the playing field: identifying a quasi-fiduciary relationship between coaches and student-athletes, 43 JOURNAL OF LAW AND EDUCATION 289 (2014) 
Christopher W. Schmidt, Explaining the baseball revolution, 45 ARIZONA STATE LAW JOURNAL 1471 (2013)  
Rachel Schwarz, Note, Timeout! Getting back to what Title IX intended and encouraging courts and the Office of Civil Rights to re-evaluate the three-prong compliance test, 20 WASHINGTON AND LEE JOURNAL OF CIVIL RIGHTS & SOCIAL JUSTICE 633 (2014) 
Ladan Shelechi, “Say uncle”: New York’s chokehold over live performance of mixed martial arts:whether combat sports are protectable speech and how much regulation is appropriate for inherently dangerous sports, 33 LOYOLA L.A. ENTERTAINMENT LAW REVIEW205 (2013) 
Sean Sheridan, Comment, Bite the hand that feeds: holding athletics boosters accountable for violations of NCAA bylaws, 41 CAPITAL UNIVERSITY LAW REVIEW 1065 (2013) 
Kyle D. Simcox, Comment, Selling your soul at the crossroads: the need for a harmonized standard limiting the publicity rights of professional athletes, 63 DEPAUL LAW REVIEW 87 (2013) 
Jennifer Simile, Intentional grounding: field quality in the NFL and the legal ramifications for choice of playing surfaces, 47 JOHN MARSHALL LAW REVIEW 115 (2013) 
Evan Simonsen, Note, Against the spread: the legality of full-service sports wagering kiosks, 4 UNLV GAMING LAW JOURNAL 241 (2013) 
Scott Skinner-Thompson and Ilona M. Turner, Title IX’s protections for transgender student athletes,28 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 271 (2013) 
Rodney K. Smith, Head injuries, student welfare, and saving college football: a game plan for the NCAA, 41 PEPPERDINE LAW REVIEW 267 (2014) 
Sam B. Smith, Note, Show me the mediation!: introducing mediation prior to salary arbitration in Major League Baseball, 42 HOFSTRA LAW REVIEW 1007 (2014) 
Jeffrey Standen, Foot faults in crunch time: temporal variance in sports law and antitrust regulation, 41 PEPPERDINE LAW REVIEW 349 (2014) 
Seth William Stern, Casenote, The IRS’s double-bogey: Goosen v. Commissioner remains a fairway to characterize endorsement income for nonresident alien athletes in Garcia v. Commissioner, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 605 (2013) 
Matthew Tymann, Note, Locked out without a key: how the Eighth Circuit wielded a pro-labor statute as a sword against labor, 99 CORNELL LAW REVIEW 953 (2014)  
Justin C. Vine, Note, Leveling the playing field:  student athletes are employees of their university, 12 CARDOZO PUBLIC LAW POLICY & ETHICS JOURNAL 235 (2013)  
Matthew R. Watson, The dark heart of Eastern Europe: applying the British model to football-related violence and racism, 27 EMORY INTERNATIONAL LAW REVIEW 1055 (2013) 
Wolfgang S. Weber, Comment, Preserving baseball’s integrity through proper drug testing: time for the Major League Baseball Players Association to let go of its collective bargaining reins, 85 UNIVERSITY OF COLORADO LAW REVIEW 267 (2014) 
Ashleigh Weinbrecht, Note, The connection between concussions and chronic traumatic encephalopathy (CTE) in professional athletics:  a necessary change in the "sports culture" in light of legal barriers, 14 JOURNAL OF LAW AND SOCIETY 309 (2013) 
Maureen A. Weston,  Symposium introduction:The New Normal in College Sports: Realigned and Reckoning, 41 PEPPERDINE LAW REVIEW 209 (2014) 
Adam G. Yoffie, There’s a new sheriff in town: Commissioner-Elect Adam Silver & the pressing legal challenges facing the NBA through the prism of contraction, 21 JEFFREY S. MOORAD SPORTS LAW JOURNAL 59 (2014)

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Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

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Some Perspective, Please

The current NFL crisis is entirely of Goodell’s own making. A professional football player is caught on videotape punching his fiancĂ©. The league’s commissioner hands out a woefully inappropriate two game suspension. He now admits he was wrong and advises the league will revamp its Personal Conduct Policy and have every player undergo “abuse awareness training.”

The media and public response? In national publications and across social media, NFL players are characterized as “common street thugs.” When I read that word “thug” again and again, I hear Seattle cornerback Richard Sherman correctly telling us “Thug is the new N-word.” In America, it does not take long for racism to rear its ugly head, particularly when it comes to attitudes toward professional athletes.

Let’s have some perspective, always a difficult task in the world of sports. There are 1696 players in the NFL and another 250 or so on practice squads. In Goodell’s 8 years as commissioner, there have been 57 cases of domestic abuse or 7 cases a year. That comes to about .5%, which is less than half the rate across the country. No doubt these numbers are low because many cases are unreported, but there is no reason to believe the percentage of unreported cases is greater in the NFL than across the general population. The highest rate of such offenses is in Nevada followed by most of the southern states. Those in law enforcement have a rate double the national average. Indeed, Alabama Federal District Judge Mark Fuller plead guilty two weeks ago to violently beating his wife in a deal that will have his record expunged once he undergoes counseling. The rate of domestic violence by players in the NFL is thus considerably less than for those who work in other occupations.

This is not to suggest domestic violence is a minor offense. Ray Rice committed a despicable act and the Commissioner should have handed down a punishment worthy of the offense. But let’s be wary of those who are quick to paint all NFL players or professional athletes generally with the same brush, particularly when they are working with an all too familiar palette.

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Dark Days in the ICC

Sports fans in America and readers of this Blog no doubt have had their fill of NFL players suspended for spousal assault and of MLBers like the Orioles Chris Davis removed from the game for taking banned substances like Ritilin. (Ritilin! Only fifth grade boys with sphilkes should be allowed to take such a thing.)

But athletes behaving badly are not confined to these shores. Consider the hubbub brewing in the lands where Cricket is king. The International Cricket Council has just suspended indefinitely one of the sport’s real stars, Pakistan's Saeed Ajmal. Ajmal is what Cricket fans know as an off spin bowler, meaning he uses his fingers and wrist to spin the ball toward a right-handed batsman or away from a lefthander. Essentially, he throws what we in the colonies think of as a slider. And he does it better than anyone.

Using the magic of videotape and rather sophisticated testing equipment at its headquarters in Dubai, the Council found definitive proof that Ajmal (sit down if you are squeamish) bowled all his deliveries with an elbow flex greater than the legal limit of 15 degrees. That’s right: greater than 15 friggin degrees.

As you probably know, a cricket bowler (think pitcher) is not allowed to straighten his arm and throw the ball (the cricketeers call this “chucking” and the result is a “no ball”). Only his shoulder’s rotation can provide velocity. The legal limit of straightening the elbow is 15 degrees and, as I said before, Ajmal’s elbow routinely went beyond that limit.

The last time Cricket had such a controversy was the famous “no ball” scandal of 1995, when Australian Umpire Darrell Hair no balled Sri Lankan bowler Muttiah Muralitharan seven times in three overs for throwing, calling the Shri Lankan’s actions “diabolical.” When the Council investigated the incident, it found the bowler had a congenital elbow deformity that caused his peculiar delivery. The ICC later found the Umpire, who received numerous death threats after the match, guilty “of bringing the game into disrepute.”

Let it be said, we shrink from no controversies here at the Sports Law Blog. We abhor Ajmal’s suspension and consider the Council’s action just dreadful.

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For those interested, the 9th Circuit is hearing the appeal of Barry Bonds' conviction and it is being livestreamed here


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Call for Papers: "The New Era in Gaming Law"

The Northern Kentucky Law Review and NKU Chase College of Law seek submissions for their symposium, "The New Era in Gaming Law," on March 20, 2015 in Highland Heights, Kentucky (just 7 miles from Cincinnati, Ohio).

OVERVIEW: The transnational character of gaming has generated difficult legal questions involving jurisdiction, regulation, and legality. Possible panel topics include online poker, sports betting, fantasy gambling, the Professional and Amateur Sports Protection Act, and the Unlawful Internet Gaming Enforcement Act. Related matters include public and private enforcement of anti-gaming statutes, constitutional issues pertinent to gaming (commandeering, the dormant commerce clause), jurisdictional issues, and taxation of gaming revenues and winnings.

The symposium will focus in particular on the interaction between extant legal and regulatory frameworks and the dynamic gaming industry. Participants will explore these issues and topics in light of recent judicial decisions and regulatory initiatives.

- Please submit materials here: nkylrsymposium@nku.edu
- Submission deadline for abstracts: October 13, 2014
- Submission deadline for first draft of manuscripts: December 15, 2014
- Submission deadline for completed articles: January 12, 2015
- Symposium date: March 20, 2015

LAW REVIEW PUBLISHED ARTICLE: The Northern Kentucky Law Review will review, edit, and publish papers from the symposium. Papers are invited from scholars and practitioners related to the program. Please submit a title and abstract (of 500-1000 words) or draft paper for works in progress. Abstracts or drafts should be submitted by email by October 13, 2014. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

FURTHER INFORMATION: For more information please visit or contact:
- Email nkylrsymposium@nku.edu
- Rick Pandorf, symposium editor: 513.886.4878
- http://bit.ly/1miCpTZ

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Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player, could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

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Michael Weiner Scholarship for Labor Studies

Major League baseball players are honoring the life of former MLBPA Executive Director Michael Weiner by creating a scholarship program to encourage the pursuit of a graduate-level degree in labor studies.

Beginning January 2015, the Players Trust will annually award up to five $10,000 scholarships to individuals dedicated to a career supporting workers’ rights.

To learn more and apply, please visit www.playerstrust.org or contact Hillary Caffarone at (212) 826-0809.

Applications must be submitted no later than Monday, November 10th 2014.

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