Tuesday, November 26, 2013

Football and limiting rules

In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.

But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty.  In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.

This seems like a game situation in which a limiting rule is warranted, as it is defined by all four features: 1) the play produces a significantly inequitable cost-benefit disparity, as the trailing defensive team can stop the clock and give itself more time to get the ball back, to the detriment of the leading offensive team, which receives no benefit from the play; 2) the defense entirely controls the play, as the offense can do nothing to stop an intentional penalty or the clock from stopping, even by declining the penalty; 3) the cost-benefit disparity arises because the defense intentionally commits a penalty, something teams do not want to do under ordinary rules and practices and something that rulemakers probably do not want them doing; and 4) the opportunity to gain those advantages incentivizes the defense to make this move regularly.

In fact, the NFL recognized this gap iand tried to stop it with a limiting rule. The problem seems to be that the limiting rule has not gone far enough.

This play sits at the intersection of three rules.
     1) Under Rule 4-3-2(f), when the clock is stopped following a foul by either team, the clock starts as if no foul had occurred. So if the clock would have kept running but for the foul, the clock starts as soon as the ball is ready; if the clock would have stopped but for the foul, it starts on the next snap.
     2) But Rule 4-3-2(f) contains three exceptions: The clock starts on the snap when the foul occurs in the last two minutes of the first half, last five minutes of the second half, and when a specific rule prescribes otherwise.  R. 4-3-2(f)(1), (2), (3). 4-3-2(f)(2) covered the Saints-Falcons game.
     3) Finally, there is a specific rule prescribing otherwise:  Rule 4-7-1 prohibits teams from "conserving time" by committing certain acts, including "any other intentional foul that causes the clock to stop." R. 4-7-1(f). The penalty for this act is a 10-second run-off and the clock starts when the ball is ready.

Rule 4-7-1 is a limiting rule. It closes a gap in the rules by imposing the outcome that would have resulted on the play--clock runs, including the ten seconds it would have taken for the ball to be spotted--and putting us in the same place as if the had not been called. By imposing that outcome, the limiting rule eliminates any incentive to commit intentional penalties and thus to act in a way contrary to the game's expectation. The problem is that the limiting rule does not go far enough--it is limited to the final minute of each half, so it does not reach intentional fouls that occur with slightly more time remaining, even if those time-conservation incentives are as present. That seems to have been the case in the Saints-Falcons game. The rule also does not address unintentional fouls, meaning a trailing team might gain that significant cost-benefit advantage, even if only accidentally.

The answer is to expand the limiting rules. Perhaps Rule 4-7-1 should be extended to the final three minutes (at least of the second half), when a leading team is already in time-wasting mode and the trailing team is in time-conserving mode. The increasing sophistication with which NFL coaches understand and strategize those final minutes--discussed weekly on advanced metrics sites--suggests teams have an incentive to begin doing this earlier than the one-minute mark.

Better still, eliminate the exceptions in Rule 4-3-2(f) for the final five minutes of the game.  Instead, the clock always should start for the next play as if no foul had occurred on the previous play; if the clock would have continued running, it should keep running (as would have happened in the Saints-Falcons game). Rule 4-7-1 then could perform the narrower function of disincentivizing intentional fouls by imposing an additional cost--a 10-second run-off-- for any intentional fouls committed to stop the clock. In either case, the trailing team would no longer receive (intentionally or unintentionally) the equivalent of a time-out by committing a penalty, thereby presumably removing the incentive to commit the intentional foul.

This is a fun question, because it illustrates how rules collide. Although Levin says in his commentary that he spoke with people from the NFL and they did not see this as a big problem. My best guess on that is two fold. First R. 4-3-2(f)(1) and (2) probably were designed to create more excitement in close games, by allowing the clock to stop more, allowing for more plays, and, perhaps, more comebacks. That purpose has now run into possible gamesmanship in taking penalties, but the league may consider the balance between excitement and gamesmanship properly struck.

Monday, November 25, 2013

NHL Concussion Litigation

Will Leeman et al v. NHL threaten the NHL? My take for SI.com.

Freakonomics and sports rules

The new Freakonomics podcast discusses "spontaneous order," illustrating it with discussion of the rules and enforcement regime of ultimate frisbee, which is played (even competitively) without officials. Fun discussion.

Saturday, November 23, 2013

Update on the San Jose v. MLB Lawsuit

Following the release of the district court's opinion in the San Jose v. Major League Baseball lawsuit last month, many assumed that the city would seek an immediate, interlocutory appeal.  (For earlier Sports Law Blog coverage of San Jose's suit and the ongoing dispute regarding the proposed relocation of the Oakland A's, click here.)  As Howard Wasserman noted at the time, though, it was unclear whether San Jose could in fact immediately appeal the decision.  Because the court's opinion was largely premised on baseball's well-established antitrust exemption, Judge Whyte's decision did not present a "substantial ground for difference of opinion" as required under 28 U.S.C. 1292(b), and as a result it did not appear that San Jose could immediately pursue an interlocutory appeal in the case.  Indeed, nearly than a month and a half later the lawsuit is still pending in the Northern District of California.

However, Judge Whyte has signaled that he may be willing to allow the city to appeal the decision shortly.  In a hearing scheduled for December 13th, the judge has asked the parties to be prepared to discuss two primary issues: (1) whether the court should retain supplemental jurisdiction of the remaining state law claims in light of the fact that the federal claim in the case was dismissed, and (2) whether a final judgment should be entered with regards to the previously dismissed claims pursuant to Federal Rule of Civil Procedure 54(b), a provision that allows courts to enter final judgment in a case once some, but not all, of the claims in the suit have been resolved.  Under Rule 54(b), the court must determine that there is "no just reason for delay" in entering final judgment for the dismissed claims. 

Presumably, San Jose will seek to persuade the court to retain jurisdiction over the remaining state law claims -- so that it can begin to pursue discovery in the case in an attempt to obtain some leverage over MLB -- while at the same time urging Judge Whyte to enter a final judgment on the dismissed claims so that the city can appeal them to the Ninth Circuit Court of Appeals.  Meanwhile, MLB will likely contend that the court should not retain supplemental jurisdiction over the remaining state law claims, but instead dismiss them outright.  However, should the court opt to retain jurisdiction over the state law claims, I would expect MLB to argue that it should then refrain from issuing a final judgment under Rule 54(b), in hopes of avoiding the prospect of simultaneously litigating the case on two separate tracks.

Assuming the court decides to enter a final judgment -- either under Rule 54(b), or following the dismissal of the remaining state law claims -- San Jose's immediate prospects on appeal do not appear to be particularly strong, given that the Ninth Circuit has previously affirmed the dismissal of a suit raising similar franchise location issues under baseball's antitrust immunity.  Portland Baseball Club, Inc. v. Kuhn, 491 F.2d 1101 (9th Cir. 1974).  Nevertheless, a pending appeal would continue to give the city some leverage over MLB in any negotiations regarding the A's proposed move to San Jose.  Perhaps more importantly, pursuing an immediate appeal would also expedite the city's timetable for a potential Supreme Court appeal.  The prospect of the Supreme Court reconsidering baseball's prized antitrust immunity would undoubtedly be a significant cause for concern for MLB, and could finally convince the league to approve the A's relocation.

Friday, November 22, 2013

RIP: Michael Weiner

One of the advantages of being actively engaged in the "sports law" community is the benefit of meeting some tremendously intelligent and charismatic individuals.  Our society lost one of those people yesterday when Michael Weiner finally succumbed to brain cancer.

Weiner, the MLB players' union executive director, took over in December of 2009 following the departure of Donald Fehr.  A fierce labor attorney, Weiner displayed the ability to advocate for the players while swiftly earning the respect of the owners, Commissioner Bud Selig and all involved in the business of baseball.

Many of us were lucky enough to have met Michael, serving on a panel at a law school conference or shaking his hand at the annual Sports Law Association's conference.  For those of you who didn't have the benefit of meeting or hearing Michael speak, spend some time researching what he accomplished over his all too short tenure with the union.  And when first pitch comes around this spring, please don't forget to tip your cap....

Thursday, November 21, 2013

On rules and sport

Great commentary from Neil Buchanan at Dorf on Law on the arbitrary nature of the rules of sport, with a special focus on whether football is still "football" under the new player-safety rules.

American Needle's Lesson for the New Jersey Sports Wagering Case

News broke late last Friday that the U.S. Court of Appeals for the Third Circuit had denied New Jersey's request for an en banc hearing in the on-going sporting wagering lawsuit.  After losing at both the District Court and Court of Appeals level, the state is now down to its last option - the U.S. Supreme Court.  Previous statements from the New Jersey side indicated that Gov. Chris Christie is inclined to take the case to the Supreme Court.  If so, the state will file a petition for writ of certiorari within the next 90 days.  Like all petitions, the chances that the Supreme Court opts to take the case are slim.

If New Jersey does indeed seek review by the Supreme Court, the conventional wisdom is that the sports league plaintiff quintet (NCAA, NBA, NFL, NHL, and MLB) would oppose review by SCOTUS given that the leagues have already prevailed twice earlier.  Such opposition could manifest itself in one of two ways: (i) by filing a motion in opposition to New Jersey's petition or (ii) by doing nothing.  However, as we learned in the American Needle v. NFL, et al case several years ago, there is a third option - the sports leagues could join New Jersey in seeking review by the Supreme Court.

Recall the American Needle case single entity antitrust case and its procedural history.  The NFL and its co-defendants prevailed at both the District Court and Seventh Circuit Court of Appeals before moving to the Supreme Court in 2010.  Nevertheless, the NFL decided to request review at the highest level.  In relevant part, here is what the league wrote in their pleading -

"The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits."

In other words, the NFL desired the Supreme Court to memorialize their earlier court victories.  With Minnesota and California promulgating sports betting-related legislation and watching the New Jersey case closely, it is possible that the NCAA-NBA-NFL-NHL-MLB plaintiffs may opt to follow the same appellate strategy now.  While the Third Circuit's decision regarding PASPA constitutionality is persuasive nationwide, only a Supreme Court decision would be binding in every circuit. 

Instances of a prevailing party seeking further review of a case are exceedingly rare.  Nevertheless, given the recent history of it happening in another high-profile case involving one of the same litigants, it is a (remote) possibility worth being aware of.

Thursday, November 14, 2013

University of Chicago 4th Annual Sports Symposium

This Friday, November 15, 2013, the University of Chicago Booth School of Business will host its Fourth Annual Sports Symposium, organized by the School's Media, Entertainment & Sports Group (MESG).  Panelists throughout the day will be coming in from the Chicago Bulls, Chicago Fire, Chicago Sky, Cleveland Browns, St. Louis Cardinals, Boston Red Sox, Baltimore Orioles, Gatorade, Intersport, and the Chicago Cubs.  Panel topics include: navigating front office management of professional teams, the increasing role of analytics in sport, and the growth of digital marketing.

I will be moderating the legal panel entitled: "The Impact of Increased Litigation in Sports."  We anticipate covering a number of topics from the concussion lawsuits to the student-athlete likeness litigation to doping.  Our panelists follow:
  • Bobby Hacker, VP of Business and Legal Affairs, Fox Sports
  • Jill Bodensteiner, Sr. Associate AD, University of Notre Dame
  • Todd Henderson, Professor, University of Chicago Law School
  • Michael LeRoy, Professor, University of Illinois College of Law and School of Labor Relations
  • Michael Siegel, Player Agent, Siegel Sports
  • Daniel Gandert, Professor, Northwestern Law School
Please come by if you are in the area.  More details can be found through the hyperlink above.

Tuesday, November 12, 2013

Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito?

The following post is written by Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar.  Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team.  We're pleased to have Joe's contribution.  He also authored the Sports Law Blog post titled What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

* * * 

It was interesting to watch NFLPA head DeMaurice Smith tell ESPN’s Stuart Scott before Monday night’s Dolphins-Buccaneers game that the Players Association could adequately represent the interests of both Jonathan Martin and Richie Incognito without a conflict of interest. NFL Commissioner Roger Goodell likes to wield the league’s Personal Conduct policy like the sword of Damocles and based on the limited information that has been made public to date, both players could be subject to discipline. Under general labor law principles, it is conceivable that the NFLPA could claim to represent both players. As the designated bargaining unit for the players, the union has the duty of fair representation. A breach of the duty of fair representation occurs when a union’s conduct toward a member is arbitrary, discriminatory, or in bad faith. I am assuming that this is the lens through which the NFLPA is viewing their role.

However, DeMaurice Smith is a lawyer, and I am guessing that many at the NFLPA are lawyers. As such, their conduct should be governed by conflict rules consistent with Model Rule of Professional Conduct 1.7, which states, “… a lawyer shall not represent a client if the representation involves a conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” As this matter progresses, how could both players be assured that the union could aggressively pursue a course of action to seek justice for an aggrieved player, yet vigorously defend the interests of an accused player during an investigation, or a punished player through the appeals process? Even with the consent of both Martin and Incognito, I do not see how the NFLPA jumps over the hurdle in the exception provision of the Rule that permits representation if, “ the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal…”

One possible solution would be to have the NFLPA appoint an experienced union leader from another sport to represent the interest of either Martin or Incognito in the very limited scope of matters pertaining to or arising out of the events in this case. Don Fehr would seem to be the likely choice. This way, the NFLPA avoids any hint of bias and both Jonathan Martin and Richie Incognito are assured that they will receive the full scope of the rights and benefits they are entitled to under their Collective Bargaining Agreement.

Joseph Kohm, Jr.

Monday, November 11, 2013

Would You Join a College Players' Association?

The legal aftermath of Judge Wilken's certification order in O'Bannon v. NCAA takes a new twist with formation efforts for a college players' trade association.  Here's my take for Sports Illustrated.

Sunday, November 10, 2013

Partial Certification in O'Bannon v. NCAA

I have a new article for SI.com on Judge Wilken partially certifying the class action lawsuit brought by Ed O'Bannon, Sam Keller and other former and current student-athletes.  Short take: her order is great news for future and current student-athletes, not so great news for former ones.

Thursday, November 7, 2013

ASU 4th Annual Conference on Sports and Entertainment Law

I am looking forward to returning to speak at The Sandra Day O’Connor College of Law at Arizona State University for its 4th Annual Conference on Sports and Entertainment Law this Saturday, November 9th, 2013 from 9am – 4pm, followed by a reception for all attendees and speakers.  The Conference will take place at Arizona State University Memorial Union, Arizona Ballroom 221 (2nd Floor), 1290 S. Normal Ave., Tempe, AZ, 85287.  CLE credit is available for attorneys, including Ethics credit.  The Keynote Presentation will be given by Bud Selig, the Commissioner for Major League Baseball. 

Panel topics include:
  • Agency –Sports and Entertainment Joint Panel
  • Athlete Personal Website and Social Media Issues
  • Music Rights and Copyright
  • Licensing, Sponsorship, and Endorsement Agreements
    –with a mock negotiation
  • Major League Baseball and Olympic Steroid and Drug Testing

Panelists include:
  • Caleb Jay (Associate General Counsel, Arizona Diamondbacks)
  • Gary Marchant (Faculty Director & Faculty Fellow, Center for Law, Science & Innovation)
  • Steve Adelman, Venue Safety Expert, Adelman Law Group, PLLC
  • Scott Peters, Safe Football LLC, former NFL and ASU Athlete
·       Gregg Goldman, 29th Drive
  • Rodney Smith (Distinguished Professor of Law & Director, Center for Sports Law & Policy, Thomas Jefferson School of Law)
  • Marc Edelman (Associate Professor of Law at the Zicklin School of Business, Baruch College, City University of New York & Professional Sports and the Law, Fordham University School of Law)
  • James M. Marovich (The Marovich Law Firm, PLC)
  • Mark Conad (Associate Professor & Acting Area Chair for Law & Ethics, Director of the Sports Business Specialization, Fordham University)
  • Travis Leach (Partner, Ballard Spahr LLP)
  • Timothy Liam Epstein (Partner/Chair, Sports Law Group at SmithAmundsen; and Adjunct Prof. of Law at Loyola University Chicago School of Law)
  • Jason Belzer (Founder, Global Athlete Management Enterprises, Inc. & Writer for Forbes)
  • Sam Renaut (Certified NFL Player Agent)
  • Stephen Webb (Executive Director of Athletic Compliance, Arizona State University Sun Devil Athletics)
  • Jaia Thomas (Sports & Entertainment Attorney, The Law Office of Jaia Thomas)
  • Connie Mableson (Intellectual Property, Business, & Entertainment, Mableson Law Group, PLLC)
  • Elissa Hecker (Entertainment & Business Attorney, The Law Office of Elissa D. Hecker)
  • Debbie Spander (Sports & Emerging Media Attorney, Spander Digital Sports & Entertainment)
  • Stephen Nebgen (Entertainment & Intellectual Property Attorney, The Law Offices of Stephen Wade Nebgen, PLLC)
  • Jay Raftery (Raftery Law Firm, J.L. Raftery, PC)
  • Don Gibson (Founder, Kavi Sports & Entertainment)

Its always a great conference, and looking forward to having fellow Sports Law Blog contributors joining me this year.

Register at this link

Confronting Locker Room Bullying with Physical Violence

An interesting development in Incognito-gate yesterday, with stories that Miami Dolphins GM Jeff Ireland told Jonathan Martin's agent that Martin should punch his tormentor in the face.

One downside of punching someone in the head, of course, is that one has committed a tort: battery.  Can a person use force to defend themselves from bullying?  In my article Defense Against Outrage, I explore this very question.  I ask whether, if the bully's conduct rises to the level of extreme or outrageous conduct, a person can use physical force in "self-defense" against the emotional damage bullying can do.

Some have argued that Richie Incognito's bullying, pervasive and offensive, would rise to the level of IIED.  Would that have created a privilege to use physical violence in self-defense?