Friday, February 28, 2014

New Sports Law Scholarship

Recently published scholarship includes:

Anthony Paul Farley, The bitter tears of Jesse Owens, 22 BERKELEY LA RAZA LAW JOURNAL 231 (2012)

Gabe Feldman, Closing the floodgates: the battle over workers’ compensation rights in California, 8 FIU LAW REVIEW 107 (2012)

Daniel Gandert and Esther Kim, The NFL’s headache: issues with California workers’ compensation for continuous head traumas in former professional football players, 45 UNIVERSITY TOLEDO LAW REVIEW 57 (2013)

Daniel Gandert et al., The intersection of women’s Olympic sport and intersex athletes: a long and winding road, 46 INDIANA LAW REVIEW 387 (2013)

Robert John Givens, Comment, “Capitamateuralism”: an examination of the economic exploitation of student-athletes by the National Collegiate Athletic Association, 82 UMKC LAW REVIEW 205 (2013)

Thursday, February 27, 2014

A serious question

A proposed NFL rule would impose a 15-yard penalty for using the n-word on the playing field. If the rule passes, what should the penalty be if the infraction is committed by a member of the Washington, D.C. football team?

New Sports Law Scholarship

Recently published scholarship includes (splitting this up over the next few days):
Kerensa E. Barr, Comment, How the “boys of fall” are failing Title IX, 82 UMKC LAW REVIEW 181 (2013)

Steven Broglio, and Rodney Fort, Concussion and concussion management in the NFL: pathophysiology and economics, 8 FIU LAW REVIEW 37 (2012) 
Daniel A. Craig, Note, Bad sports: has Olympic brand protection gone too far?, 9 S.C. JOURNAL INTERNATIONAL LAW AND BUSINESS 375 (2013) 
Erin Cronk, Note, Unlawful encroachment: why the NCAA must compensate student-athletes for the use of their names, images, and likenesses, 34 UNIVERSITY OF LA VERNE LAW REVIEW 135 (2013) 

More legal problems for Aaron Hernandez: new civil lawsuit and a jailhouse fight

I spoke with SI Now's Maggie Gray today about new developments in the Aaron Hernandez and how they connect to the murder prosecution:

Wednesday, February 26, 2014

The other side of corporate speech

There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.

But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?

This gets at  what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.

Update: Gov. Jan Brewer vetoed the bill.

Tuesday, February 25, 2014

Raymond Felton: Gun Charges less than expected

I have a new Sports Illustrated piece tonight on Raymond Felton - good news for him.

Update: here's a video I did for NBA TV with Ernie Johnson, Jr.:

Legal Analysis of Raymond Felton's Gun Charges & His NBA Future

Earlier this morning, New York Knicks point guard Raymond Felton was arrested for illegal possession of guns under New York Law.  In an article for Sports Illustrated, I break down the charges and whether the NBA will suspend him and whether the Knicks will try to void his contract. 

Here are a couple of excerpts:

New commissioner Adam Silver will face his first major disciplinary decision with Felton. Like Stern, Silver is an attorney and he will likely scrutinize the charges and available evidence before making a decision. Silver will also rely on the counsel of Rick Buchanan, the league's general counsel and executive vice president. Silver and Buchanan undoubtedly know that the league's image is tarnished with fans, media and lawmakers when players are connected to guns. On the other hand, they do not want to punish a player who may ultimately be cleared of any wrongdoing. This is a crucial point for Felton as he considers his legal options: if he pleads guilty to any crime, the NBA would be clearly justified in suspending him. 

* * *

The Knicks could try to terminate Felton's contract under Clause 16 of the NBA's Uniform Player Contract. In theory, this clause allows NBA teams to void a contract if a player, "fails, refuses, or neglects to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship..." The Knicks would have to first place Felton on waivers. Assuming he clears waivers -- a safe bet -- the Knicks would then notify Felton that his contract has been voided. To be sure, the Knicks' legal argument for terminating Felton's contract would be strengthened if Felton is convicted or if he pleads guilty.

To read the rest, click here.

Monday, February 24, 2014

Thoughts on MLB's home plate collision rule

Major League Baseball today announced an experimental rule banning, or at least limiting, home-plate collisions. The rule change is designed to protect players, as collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.

New Rule 7.13 provides:
A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.
An interpretive comment adds:
The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.
Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.
The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.

The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the catcher blocks the plate while holding the ball or trying to field a throw and the runner runs directly into him in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.

The solution may come in the interpretive comments. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path. It incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, depending on how the umpire views the play (whether the runner lowered his shoulder or raiseed his arms, etc.).

The rule seems unnecessarily complicated, given the player-safety goals involved and the fact that they simply could have modeled the rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed as a first step to get players used to this new way of playing.

The NCAA: Restricting Access to Career Advice

As many of you know, I've been arguing for years that colleges need to provide greater support to those college athletes making the transition to the pros. [Law review article here, Huffington Post article here.] Recently, the Philadelphia Phillies and the NCAA reminded us of the lunacy of the rule prohibiting college athletes from having an agent.
  1. Fact: MLB drafts college juniors and the player has the ability to either a) sign with the team; or b) return to college for their senior year.
  2. Fact: The NCAA allows baseball (and men's ice hockey) players to retain advisors but NOT agents. Accordingly, the NCAA permits the advisor to speak with the player and his family directly, but under no circumstances may the advisor have direct contact with the team (MLB or NHL) that owns the player's rights. 
  3. Fact: The Philadelphia Phillies drafted Oregon State's Ben Wetzler, a pitcher, in the 5th round of the 2013 MLB entry draft. The Phillies had the right to negotiate with Wetzler over the summer, to see if he'd forgo his senior year and sign with their team.  Wetzler declined the Phillies offer and returned to Oregon State.
  4. Fact: The Phillies, after being spurned by Wetzler, turned him into the NCAA for having his advisor speak directly with them.  The NCAA then imposed an eleven game ban on Wetzler--forcing him to miss 20% of his senior season.
I won't write a 10,000 word tome on how the Phillies' actions are deplorable and the NCAA rule is ludicrous.  [Although, let's be crystal clear, THEY ARE.]  I'll just point you to a few articles and, hopefully, allow for others to make my arguments:
Rather than just whining, I'll submit an easy recommendation--allow college athletes the right to have agents. Under what scenario does the NCAA feel that restricting access to competent career advice for college students is the right solution?  And if college athletes are students and not employees, (hmm, where have I heard that argument) shouldn't they be treated as such and allowed counsel when making life altering decisions?

Saturday, February 22, 2014

Another "No Agent" Rule Violation Finding Based on Questionable Evidence

Aaron Fitt at Baseball America reports today that Oregon State senior pitcher Ben Wetzler was just suspended for 11 games by the NCAA for allegedly violating its "no agent" rule.  Numerous scholars have opined on the rule's irrationality, particularly in its application to amateur baseball players which I wrote about nine years ago.  The rule was also found, in Oliver v. NCAA, to be arbitrary and capricious because it bears no rational relation to preserving "amateurism" as well as a violation of public policy because its breadth inappropriately interferes with a lawyer's representation of his/her client.

But a separate area of concern raised in Wetzler's situation, which unfortunately applies to any NCAA athlete suspected of violating NCAA rules, has to do with the impartiality and neutrality of the exclusive dispute resolution process utilized by the NCAA and its member institutions to resolve eligibility disputes, coined as the "Student-Athlete Reinstatement Process."  It appears from Fitt's report that the primary evidence for finding a violation by Wetzler is that the Phillies, after failing to sign Wetzler after drafting him in the fifth round last summer, said something to the NCAA.  The NCAA stated in its press release:  “According to the facts of the case, which were agreed upon by the school and the NCAA, Wetzler sought help from an agent who attended meetings where Wetzler negotiated contract terms with the team.”  The italicized portion says it all.  In many respects Wetzler's case reminds me of Paxton v. University of Kentucky, whereby the NCAA suspected Paxton had violated the rule based upon a journalist's blog post suggesting that Paxton's lawyer may have had communications with the MLB club that drafted him.

I recently co-authored an article with Professor Steve Ross (Penn State) and S. Baker Kensinger, Esq. (Goldberg Katzman) that addresses the impartiality and neutrality concerns associated with the NCAA's rules and process for handling eligibility disputes, which can be downloaded from SSRN here.  We opine that the NCAA’s reinstatement process for resolving eligibility disputes lacks the independent impartial review necessary to insulate the process from judicial review under the Federal Arbitration Act (FAA).   We analyze the well-defined strands of private association law and the requirements of the FAA and conclude that the NCAA's Restitution Rule effectively constitutes an improper "waiver of recourse" clause.  We further propose that the NCAA can achieve its legitimate aim of quick and definitive resolution of eligibility disputes by affording college athletes the right to submit their disputes to binding arbitration before a neutral, expert arbitrator (or panel of arbitrators) consistent with the requirements of the FAA, similar to the numerous arbitration systems adopted by other sporting leagues and associations.

Friday, February 21, 2014

Not a sport, redux

Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.

Monday, February 17, 2014

Want to learn Sports Law and Investigative Reporting? Come to Concord, New Hampshire

I'm excited to announce the first ever Sports Law and Investigative Reporting course.

Sports Illustrated executive editor and head of Sports Illustrated's investigative team, B.J. Schecter, & I will co-teach this course at the University of New Hampshire School of Law from June 2 to June 6. By the end of the course, we expect students will have:
• Gained an overview of how the law interacts with sports and the reporting of sports. Relevant areas of law include criminal law, labor and antitrust law, intellectual property law, contract law, libel and defamation law, communications law and personal injury law. 
• Learned the key differences between a collective bargaining agreement, league constitution and league bylaws. 
• Learned how to effectively obtain investigatory information, including the “best practices” for using the Freedom of Information Act and states’ public records laws. 
• Developed strategies for advocating for and against “gag orders” in high-profile trials. 
• Become able to spot legal issues in fact situations involving disputes between and among leagues, teams and players. 
• Developed crucial skills for interviewing attorneys and agents who represent athletes that are in trouble with the law; general counsel of teams, leagues and sports companies. 
• Gained insight on how to develop sources, including law enforcement sources. Learned important obligations about protecting sources and reducing exposure to government and law enforcement interested in the information you possess. 
• Learned how to locate and understand key legal documents, such as complaints, subpoenas, search and seizure warrants, pretrial discovery (exhibits, witness lists etc.), grand jury transcripts so-called “independent” investigations and accompanying reports, and contracts of players, endorsers, licensors and broadcast companies. 
• Learned how to competently write, fact-check and vet sensitive stories. 
• Learned the “best practices” for breaking and commenting on sports law news, including appropriate use of Twitter. 
Our course is open to law students and attorneys, as well as to journalism students and journalists, and others who are interested in learning how to investigate and report on a news story that involves law and sports.  Front office personnel, university athletic department staff, sports agents, crisis management professionals and team and corporate communications specialists may also find significant value in the course.  You do not need an affiliation with UNH Law or UNH to take the course.  UNH Law is located in Concord, NH (the state's capital) and is about 70 minutes from Boston. 

For more on taking Sports Law and Investigative Reporting and other courses offered as part of the UNH Law summer institute on intellectual property and media law, click here.  Sports Law and Investigative Reporting is a one-credit course and costs $1,370.  Other available courses will include Internet Law, Advertising Law, and Fair Use of Copyrighted and Trademarked Work. 

We hope to see you this June!

Sunday, February 16, 2014

Harvard Law School Sports and Entertainment Law Symposium Friday 21, 2014

I look forward to speaking at Harvard Law School this Friday at their annual sports and entertainment law symposium.  Here are details on what should be an excellent event:

Harvard Law Sports & Entertainment Symposium
Friday, February 21, 2014
Wasserstein Hall
Harvard Law School
1585 Massachusetts Avenue
Cambridge, MA 02138
COST: Free!

Weiler Awards (lunch will be provided) (12:00 to 12:15)

Keynote (12:20 to 1:20)  

David Otunga, Harvard Law School alumnus and WWE wrestler

Panel #1: The Intersection of Business & Law (1:30 to 2:30)

Jay Cohen - General Counsel of the Dallas Cowboys
Andy Kim - Chief Financial Officer of The Weinstein Company
Richard Buchanan - Executive Vice President & General Counsel of the NBA
Cooper Campbell Jackson - Senior Vice President of Business Affairs at Sony
Michael McCann - Sports Illustrated legal writer & UNH Law professor

Panel #2: Representing Clients in Trouble with the Law (2:50 to 3:50)

Michael Fee - represents former New England Patriots TE Aaron Hernandez
Tamar Arminak - represents actress Amanda Bynes
Jay Reisinger - formerly represented baseball player Alex Rodriguez
Rodney Thomas - represents EJ Manuel and other NFL clients
Gabe Feldman - Tulane Law professor, @SportsLawGuy

Panel #3: Social Media – Blessing or Curse? (4:00 to 5:00)

Anthony D'Imperio - Vice President of Business & Legal Affairs at IMG
Dean Bahat - Business Affairs,
Holly Bright - Bento Box Entertainment
Jerry Neeff - Entertainment Law professor at BU Law

Networking Reception (open bar and hors d’oeuvres provided) (5:00 to 6:30)

To RSVP, click here.

Saturday, February 15, 2014

Sports Law History: The Federal Baseball Decision of 1922

This is the sixth and final installment in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust ExemptionClick here to read the earlier posts in the series.

Because both the Court of Appeals for the District of Columbia and the U.S. Supreme Court issued published decisions in the Federal Baseball case, most sports law enthusiasts are well aware of how Baltimore's suit against the major leagues ultimately fared on appeal.  Nevertheless, I was able to discover several interesting details about both proceedings during the course of my research.

For example, the court of appeals held its oral argument in Baltimore's case less than three weeks after the news that the 1919 World Series had been fixed became public.  The impact that the Black Sox scandal would have on the appellate court's decision in the case was undoubtedly a concern for the major leagues.  Indeed, some suspected that the court of appeals would conclude that baseball was subject to the Sherman Act because the scandal revealed the need for greater regulation of the sport.  On the other hand, it is also possible that the court may have been willing to allow the American and National Leagues greater leeway to collectively centralize their operations in order to impose the type of discipline and authority that the scandal necessitated.  Thus, it is ultimately unclear what impact, if any, the Black Sox scandal had on the appellate court's decision in the case.

The court of appeals eventually reversed the trial court and held that professional baseball did not constitute interstate commerce.  In particular, the circuit court characterized the major leagues as being engaged in "sport" not "commerce," while stating that Baltimore's case primarily focused on the reserve clause. This latter portion of the opinion has caused some subsequent courts and commentators to believe that the suit only involved allegations concerning the reserve clause, when in reality Baltimore's claims were broader.

Nevertheless, the Supreme Court ultimately affirmed the court of appeals' decision in 1922.  Although the Supreme Court's decision has always been understood to be unanimous, my research revealed that at least two justices -- Brandeis and McKenna -- initially cast dissenting votes. Indeed, both justices eventually wrote to Justice Oliver Wendell Holmes, Jr. (pictured), the author of the majority opinion, to report that they were switching their votes so that the decision could be unanimous.

Justice Holmes's opinion in the case has regularly been misinterpreted, with many believing that it simply held that professional baseball was not sufficiently interstate in nature to fall within the Sherman Act.  In reality, Holmes' decision was premised on two separate grounds. Most fundamentally, he determined that baseball was not commerce, adopting the major leagues' characterization of the term as being limited to the production or sale of tangible goods. In particular, Holmes stated that "the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words." In addition, Holmes also determined that professional baseball was not interstate in nature because the entire source of the industry's revenue -- i.e., ticket sales to baseball exhibitions -- was generated within a single state. The transportation of players across state lines, he concluded, was thus merely "incidental."

While subsequent commentators have been highly critical of Holmes' decision in the case, my research revealed that both parts of his holding were consistent with the legal precedents in place at the time.  Moreover, neither of these arguments was ever effectively rebutted by Baltimore's counsel in its briefing.  Therefore, my book ultimately concludes that the Federal Baseball case, although heavily criticized today, was in fact correctly decided given the applicable legal precedents in place in 1922.

Friday, February 14, 2014

Great Lakes Sports and Entertainment Law Academy

We've previously blogged about the Great Lakes Sports and Entertainment Law Academy, a summer program run by Peter Carfagna and Craig Nard and affiliated with Case Western and Cleveland-Marshall Law Schools for law students interested in sports and entertainment law. The academy, which offers distance learning, has a great deal to offer and will have courses this year from May 18 to June 7. For more information, click here.

Sports Law History: The Federal Baseball Trial of 1919

This is the fifth in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust ExemptionClick here to read the earlier posts in the series.

Following the dismissal of the Baltimore Terrapins' initial lawsuit in Philadelphia, the club engaged in some limited settlement negotiations with the two major leagues over the next several months.  When those efforts ultimately failed, the team then opted to file a second lawsuit against the American and National Leagues in September 1917, this time in Washington, D.C.  It is not entirely clear why the team elected to file suit in Washington.  Baltimore likely hoped to avoid any potential prejudice from refiling the case in Philadelphia, and therefore simply opted for the closest city hosting a major league team (for service of process reasons).

Because the trial court never issued a formal written opinion in the case, relatively little has been known about the lower court proceedings in the Federal Baseball suit.  Baltimore's complaint was divided into two primary sets of allegations, the first dealing with the major leagues' monopolization of the professional baseball industry from 1903-1915, and the second contesting the ultimate destruction of the Federal League in 1915, both of which the team believed constituted violations of both federal antitrust and state law.  In particular, Baltimore alleged that the American and National Leagues had monopolized the industry in various ways, not only by securing their claim to nearly all professional players through the use of the reserve clause (thereby tying each player to his current team for the entire length of his career), but also by guaranteeing all major league teams exclusive control over their geographic territories.  This latter aspect of the team's case has often gone largely overlooked in modern treatments of the dispute, as courts and scholars have at times believed the case simply involved monopolization allegations relating to the reserve clause.

Due to the Washington court's congested docket, the suit would not be called for trial until March 1919.  The parties eventually staged a fourteen day jury trial, featuring testimony from a variety of baseball executives (including legendary Philadelphia A's manager Connie Mack) and former players.  Baltimore's newly retained legal counsel was able to present a much stronger case on the team's behalf than was asserted in the Philadelphia suit, emphasizing not only the dissolution of the Federal League in 1915, but also the major leagues' consistent monopolization of the industry for years prior.

Following the completion of the witness testimony, presiding judge Wendell Stafford allowed each side to present dueling motions for directed verdict, with both parties asserting that the undisputed evidence from the trial warranted a verdict in their favor.  These arguments ultimately turned on the question of jurisdiction, as the parties disputed whether professional baseball constituted interstate commerce, and thus was subject to federal antitrust law.  Baltimore's counsel stressed the fact that major league teams were spread across a number of different states, necessitating the transportation of both players and equipment across state lines, as proof that the leagues were engaged in interstate commerce.  The team's counsel was so convinced of the strength of their argument that they opted to voluntarily waive Baltimore's claims arising under state law, resting its case entirely on the applicability of federal antitrust law.  This decision would prove to be a critical mistake in hindsight.

Conversely, the American and National Leagues' counsel, George Wharton Pepper, argued that the business of professional baseball did not constitute commerce under the prevailing judicial definition in place at the time. In particular, Pepper stressed a series of precedents holding that commerce only involved the production or sale of tangible goods.  Because the major leagues produced no tangible products themselves, but instead merely sold tickets to ephemeral exhibitions of baseball (games that were staged entirely in one state, no less), he did not believe that professional baseball was engaged in interstate commerce.  Consequently, Pepper asserted, baseball could not be regulated under Congress's interstate commerce powers and therefore not subject to federal antitrust law. 

Judge Stafford adopted the plaintiff's view of the law.  He ruled from the bench that the major leagues were engaged in interstate commerce, and that they had illegally monopolized the industry in violation of the Sherman Act.  Stafford indicated that he was not entirely convinced that this determination was correct, however, suggesting that he was ruling in Baltimore's favor in part to avoid the potential need for a retrial, thereby allowing the already empaneled jury to resolve the remaining factual issues (namely, whether Baltimore had itself been harmed by the major league's monopoly, and, if so, what the extent of its damages were).  Had Stafford instead ruled in the major leagues' favor and dismissed the suit, only to have his decision overturned on appeal, the parties would then have had to stage a new trial to determine the remaining factual issues in dispute.

The jury ultimately returned a verdict awarding Baltimore $80,000 in damages (subsequently trebled to $240,000), much less than the $300,000 in damages the team had sought, but a significant victory nonetheless.  The major leagues, of course, immediately vowed to appeal the decision, and were confident that their position would ultimately be adopted by a higher court.  Their prediction eventually proved correct.

Thursday, February 13, 2014

Fan speech, again

I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech,  in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.

I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).

1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.

2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.

3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.

4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.

5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.

6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.

Sports Law History: The Baltimore Federals' Largely Forgotten Philadelphia Lawsuit

This is the fourth in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust ExemptionClick here to read the earlier posts in the series.

Students of baseball history, and sports law enthusiasts, are likely aware that the Federal League's Baltimore Terrapins opted out of the Federal League-Major League peace agreement of December 1915, with the team instead electing to file its own antitrust lawsuit against the American and National Leagues.  That litigation, of course, ultimately culminated in the Supreme Court's 1922 decision giving rise to baseball's infamous antitrust exemption.  What fewer people realize, however, is that the suit that eventually made its way to the Supreme Court -- following trial court proceedings in Washington, D.C. -- was not the Baltimore club's first lawsuit against the major leagues.

Indeed, a few months after the Federal League-Major League peace agreement, the Baltimore Terrapins filed suit against the American and National Leagues in the federal district court for the Eastern District of Pennsylvania in Philadelphia.  The suit charged the major leagues with violating both Sections 1 and 2 of the Sherman Act, not only by conspiring to drive the Federal League out of business throughout its short life-span, but also by reestablishing monopoly conditions in professional baseball through the 1915 peace agreement.

Unfortunately for Baltimore, this initial lawsuit appeared to be ill-fated from the start.  Shortly before trial was scheduled to begin in June 1917, the team's lead attorney, and noted antitrust lawyer, William Glasgow became unable to try the suit as planned for unknown reasons.  Consequently, the club's general counsel, Stuart Janney, was forced to step in at the last minute to try the case himself on behalf of the team.  Janney struggled to effectively present such a complex case on short notice, and after three-and-a-half days of largely unproductive testimony, he abruptly and unexpectedly announced that the plaintiff was resting its case.

The bad news continued to mount for Baltimore early in the presentation of the defense's case, when the major league's first witness, National League President John Tener, testified that he was in possession of a transcript of the December 1915 peace negotiations between the Federal League and the major leagues.  Baltimore's counsel had been completely unaware of the existence of such a transcript, and upon reviewing the document that night determined that it largely undermined the team's case.  In particular, the transcript showed that Baltimore had been represented during the negotiations by two of its corporate executives, including its general counsel Janney, who had failed to object when Federal League officials made several unfavorable representations during the peace negotiations.  Because Janney had predominately focused his presentation of evidence on the illegality of the 1915 peace agreement, he believed the transcript largely undermined Baltimore's case, not only by suggesting that the team had acquiesced to the Federal League's dissolution, but also insofar as it placed him as an important witness to key events in the trial.

As a result, Janney stunned the crowd gathered in the courtroom at the beginning of the fifth day of the trial by announcing that the plaintiff was voluntarily dismissing its case.  Although some press reports speculated that a settlement must in the works, both sides insisted that that was not the case.  Indeed, despite withdrawing their suit, Baltimore's counsel sent a letter to the major leagues' attorneys that afternoon maintaining that the team continued to believe its rights had been violated.  Consequently, Baltimore would eventually file a second, broader antitrust suit against the major leagues several months later, this time in Washington, D.C.

Wednesday, February 12, 2014

Senne v. MLB: Minor League Players Sue MLB over Wages

I have a new article for on a federal lawsuit just filed by three former minor league players against baseball over allegedly unpaid minimum wage and overtime.  To be sure, this will be a lawsuit to follow. 

Here's an excerpt:

The lawsuit portrays minor league players as members of the working poor, and that's backed up by data. Most earn between $3,000 and $7,500 for a five-month season. As a point of comparison, fast food workers typically earn between $15,000 and $18,000 a year, or about two or three times what minor league players make. Some minor leaguers, particularly those with families, hold other jobs during the offseason and occasionally during the season. While the minimum salary in Major League Baseball is $500,000, many minor league players earn less than the federal poverty level, which is $11,490 for a single person and $23,550 for a family of four.

To read more, click here.

Sports Law History: Judge Landis and the Federal League Antitrust Suit of 1915

This is the third in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust ExemptionClick here to read the earlier posts in the series.

Aside from the Supreme Court's decision in the Federal Baseball suit itself, perhaps the most famous legal development arising out of the Federal League challenge was the antitrust suit the Federals filed in 1915 against the major leagues in the Chicago federal court of Judge Kenesaw Mountain Landis (pictured).  While many sports law enthusiasts were generally aware of the Federal League's antitrust suit, and Landis's involvement in it, prior to my research little was known about the actual proceedings themselves.  Fortunately, most of the original court papers, as well as a transcript of the four-day hearing held before Judge Landis in January 1915, have been preserved by the National Baseball Hall of Fame Research Library in Cooperstown, New York.  These materials serve as the basis for the fourth chapter in my book, documenting the Federal League's antitrust lawsuit against the two major leagues.

The Federal League filed its suit on January 5, 1915.  The complaint alleged that the American and National Leagues had illegally monopolized the professional baseball industry in violation of both federal and state antitrust law, and had also illegally conspired to destroy the Federal League in violation of state law.  The league asked the court to issue an injunction preventing the major leagues from continuing to coordinate their activities under the so-called National Agreement (the document governing professional baseball at the time) and from continuing to interfere with the Federal League's operations (such as by filing any new lawsuits against Federal League players).

Shortly after the suit was filed, Judge Landis scheduled a hearing in the case for January 20th to decide whether to grant the Federal League a preliminary injunction.  The first day of the hearing was a significant event, as well over a thousand Chicago-based baseball fans reportedly flocked to the courthouse in hopes of snagging a seat to watch the proceedings.  The parties ultimately spent four full days arguing before Judge Landis, with the issue of jurisdiction taking center stage throughout much of the proceedings.  In particular, the major leagues alleged that they were not subject to federal or state antitrust law insofar as they did not consider baseball to be commerce.  Relying on traditional definitions in place at the time limiting the term "commerce" to the production or sale of physical goods, the leagues argued that they did not themselves produce or sell anything tangible, but instead simply staged intangible amusements, beyond the scope of antitrust law.  The Federal League, of course, disputed this characterization, contending that baseball was commerce insofar as the leagues paid to transport both players and equipment across state lines in order to stage their exhibitions.

Although the parties and media anticipated that Judge Landis would issue a ruling in the suit within a few weeks, he ultimately withheld his opinion for over a year.  Landis would later explain his inaction by stating that if had he had issued an order it would have severely damaged both sides of the dispute, and potentially the sport itself, and therefore that he believed deferring his decision was the most prudent course of action.  In the meantime, all three leagues struggled financially throughout the 1915 season, in the face of both an economic recession and the on-set of World War I.  Consequently, both sides agreed to a truce in December 1915.  Under the terms of the agreement, the Federal League agreed to cease its operations in exchange for payments totaling over $450,000 from the major leagues.  In addition, two Federal League owners were allowed to purchase existing major league clubs (the Chicago Cubs and St. Louis Browns).  While the terms of the deal satisfied seven of the eight Federal League teams, the owners of the league's Baltimore Terrapins objected to the agreement on the grounds that they did not receive anything under the deal.  Despite the Terrapins' protests, the settlement was ultimately ratified, and as a result the Baltimore club subsequently pursued its own antitrust litigation, eventually culminating in the Supreme Court's Federal Baseball decision.

Judge Landis, of course, would later become baseball's first commissioner in 1920 in the aftermath of the fixing of the 1919 World Series (i.e., the so-called Black Sox scandal).  Subsequent scholars have been largely critical of Landis's involvement in the Federal League's antitrust suit, believing that the judge was predisposed to side with the major leagues.  For example, these scholars cite abbreviated press reports in which, at one point in the hearing, Landis declared that any "blow at this thing called baseball ... will be regarded by this court as a blow at a National institution."  However, as my research reveals, when the exchange is read in its entirety Landis was actually admonishing major league baseball's attorney by explaining that one's personal affection for the game of baseball was irrelevant to the question of whether the major leagues had violated the law.

Moreover, while it is certainly true that Landis could have issued a ruling much sooner in the case, ultimately the delay appears to have had a relatively insignificant impact on the continued viability of the Federal League.  Indeed, by the end of the four-day hearing the Federals had simplified their request for immediate injunctive relief to simply an order preventing the major leagues from interfering with the Federal League's players or denigrating the league in the press.  With a few minor exceptions, the major leagues largely acceded to these requests throughout 1915 despite the lack of a formal injunction.  Therefore, even if Landis had issued a ruling on a more timely basis it is far from certain whether it would have significantly helped the Federal League.

Thus, despite baseball fans' general awareness of the Federal League's 1915 antitrust suit and Judge Landis's involvement in the litigation, I nevertheless believe my book will uncover a number of important new details about the proceedings.

Tuesday, February 11, 2014

Richard Sherman, Marcus Smart, and Booby Clark

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 posts titled Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito? last November and What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

 * * *

The controversy surrounding Richard Sherman’s interview with Erin Andrews and Marcus Smart’s suspension for interacting with a fan, harkened me back to my first year Torts class.  While studying the distinction between negligence and recklessness, our reading assignment included the 1977 case Hackbart v. Cincinnati Bengals, Inc. and Charles “Booby” Clark,  435 F. Supp. 352 (1977).  The facts recounted how on an interception during an NFL game, Clark, a running back with the Bengals, elbowed Hackbart, a defensive back for the Broncos, in the back of the head, thereby shortening Hackbart’s career.

What jumped out at me from the opinion was the inclusion of testimony from Broncos Head Coach John Ralston on the level of aggression coaches intentionally cultivate in their players to produce a “controlled rage.”  Ralston testified that, 
The pre-game psychological preparation should be designed to generate an emotion the equivalent to that which would be experienced by a father whose family had been endangered by another driver who had attempted to force the family car off the edge of a mountain road.  The precise pitch of motivation for the players at the beginning of the game should be the feeling of that father when, after overtaking and stopping the offending vehicle, he is about to open the door to take revenge upon the person of the other driver.    
While Hackbart was a civil case regarding liability, the underlying premise remains that high level athletics (the National Football League, Big 12 basketball) is equal parts emotion and physicality.  Thus, when Richard Sherman did his best Clubber Lang impersonation with Erin Andrews, it was just a natural outflow of the “controlled rage” that most in the NFL live on in order to play a sport that is the equivalent of being in an automobile accident on every play.  What Richard Sherman says 30 seconds after a game has to be placed in different context to what he says one hour after a game.

Fast forward to Oklahoma State’s Marcus Smart, who was suspended Sunday by the Big 12 for “inappropriate conduct with a spectator” toward the end of their game with Texas Tech.  The Big 12 must have a pretty loose definition of the term “spectator.”   Much to the mortification of many basketball purists, high level collegiate basketball has become a contact sport, and no matter how often the officiating higher-ups produce “points of emphasis” (see this season’s cause celeb – the hand check), the game will continue in a rectilinear direction towards increasing contact. 

As Marcus Smart tripped over a camera operator, he ended up a few feet from Tech “super-fan” Jeff Orr.  In a two point game with just a few seconds left, Smart had just finished sprinting down court in an attempt to block a Tech layup.  He was called for a foul.  At this point, Marcus Smart’s mental state was probably not much different from that of Richard Sherman’s after Sherman deflected the game winning pass intended for Michael Crabtree. 

While I don’t condone Marcus Smart verbally engaging Jeff Orr, I don’t think the three game suspension was warranted.  A close inspection of the video shows that Orr made a quick upward gesture with his left hand in very close proximity to Smart’s face.  An argument could be made that Jeff Orr’s hand feign constituted an assault placing Smart in apprehension of imminent harm and his push of Orr was self defense.  Is it unrealistic to think that at that split second in time, Marcus Smart’s conduct was an outlier, even if he wasn’t 19 years old?   Unfortunately, it appears Smart’s discipline neglected to factor in “controlled rage” which major college and professional athletics regularly and handsomely cash in on.                

Joseph Kohm, Jr.

Sports Law History: The Federal League as the First Single Entity League

This is the second in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust Exemption. Click here to read the earlier posts in the series.

Those who are well familiar with the Supreme Court's decision in the Federal Baseball case know that the lawsuit evolved out of the Federal League challenge to the American and National Leagues in 1914 and 1915.  One potentially interesting aspect of the Federal League's operations that I discovered during the course of my research was that the league was arguably structured as the first single-entity professional sports league.  While much has been made in recent years of the so-called single-entity defense under Section One of the Sherman Act -- ultimately culminating in the Supreme Court's 2010 decision rejecting the theory in American Needle v. National Football League -- the Federal League appears to have been well ahead of its time, structuring its operations in such a manner that may have arguably allowed it to avoid the Section One scrutiny that the existing professional leagues' operations are typically subject to today.

Founded in 1913, the Federal League was organized as a for-profit, Indiana corporation.  More importantly, the league exerted significant control over its member teams.  For instance, under the terms of the league's franchise agreement, the Federal League could seize control of any team if it violated any league rule.  Indeed, the Federal League exercised this authority on at least one occasion, declaring that the Kansas City Packers franchise had been forfeited to the league in February 1915 due to its failure to raise sufficient capital for the upcoming season (the history of the litigation resulting from this seizure is detailed in my forthcoming law review article, Insolvent Professional Sports Teams: A Historical Case Study).  In contrast, the NFL Constitution only allows the league to terminate a franchise in instances where the team (i) files for bankruptcy, (ii) disbands in mid-season, or (iii) permanently goes out of business.  Thus, the central Federal League office possessed greater authority over its individual franchises than is typically the case in professional sports leagues today.

Meanwhile, although each of the Federal League's eight teams owed 1/8th of the league entity's corporate stock, the league required that these shares be assigned back to it in return for the grant of a franchise.  Similarly, the league also required that each franchise assign its stadium lease to the league, so that teams could not unilaterally desert the league to join the major leagues (or if they did, they would at least no longer have anywhere to play).

Admittedly, this structure may not have been enough for a modern day court to hold that the Federal League operated as a single economic actor in the marketplace, and thus was a single-entity beyond the scope of Section One after American Needle.  This is especially true given that each Federal League team was independently owned and operated, and had a direct voice in the league's operation by holding a seat on the league's Board of Directors.  In many respects, the Federal League structure was thus roughly analogous to that originally adopted by Major League Soccer.  Despite initially convincing a federal district court that it was a single-entity, MLS's bid for Section One immunity ultimately failed at the First Circuit Court of Appeals.  Nevertheless, a league adopting the Federal League's structure today would likely be able to stake a stronger claim to single-entity status than can many of our existing professional sports leagues.

Monday, February 10, 2014

Sports Law History: The Federal League Litigation of 1914

This is the first in a series of posts discussing my research into the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, culminating in my recently released book, Baseball on Trial: The Origin of Baseball's Antitrust Exemption

One hundred years ago, professional baseball was in a state of turmoil.  The two major leagues, the American and National, were facing a challenge to their supremacy from the rival Federal League.  After completing its initial season in 1913 employing mostly semi-professional and former pro players, the Federal League announced its intentions to elevate itself to major league status in 1914 by signing major league players away from their current clubs.  The Federal League believed it could do this based on advice from its legal counsel, who had determined that the existing standard major league player contract was legally unenforceable due to two provisions: the reserve clause and the ten-day release provision. The reserve clause assigned each team the automatic right to renew its players' contracts for the following season, effectively tying players to their current teams for the entire length of their careers. Meanwhile, the ten-day release provision allowed teams to release their players for any reason at all simply by providing them with ten days notice.

The Federal League's attorneys believed that these two provisions, taken in combination, rendered the players' contracts legally unenforceable due to a lack of mutuality, insofar as they believed it was unfair to force a player to work for a single team for his entire career when the team itself was bound to the player for no more than ten days at a time.  The Federal League's position was supported by several legal decisions arising out of the so-called Players' League challenge of 1890, in which courts refused to enforce the reserve clause in players' contracts.  See Metropolitan Exhibition Co. v. Ward, 9 N. Y. Supp. 779 (Sup. Ct. 1890); Metropolitan Exhibition Co. v. Ewing, 42 Fed. 198 (C. C. S. D. N. Y. 1890).  Based on this legal theory, the Federal League successfully persuaded approximately 50 major league players to sign with it during the 1913-14 off-season.

The major leagues fought back by aggressively recruiting the defecting players back into their fold, often offering the players significant raises.  Ultimately, thirteen different lawsuits were filed between the two sides in 1914, as the parties sought injunctions to prevent their players from jumping back and forth between the leagues.  While devoted students of baseball legal history may have already been aware of several of these cases, including Cincinnati Exhibition Co. v. Marsans, 216 F. 269 (E.D. Mo. 1914), Weeghman v. Killefer, 215 F. 168 (W.D. Mich. 1914), and American League Baseball Club of Chicago v. Chase, 149 N.Y.S. 6 (Erie County Sup. Ct. 1914), others had been largely forgotten prior to my research.

For example, one of the most significant cases of the year involved pitcher George "Chief" Johnson (pictured), who defected to the Federal League in April 1914 following a dispute with his prior team, the Cincinnati Reds.  The Reds immediately secured a temporary injunction in Illinois state court to prevent Johnson from making his Federal League debut in Chicago during the inaugural game at Weeghman Park, better known today as Wrigley Field.  By the time Cincinnati's attorneys reached the ballpark, however, the game had already begun, so Johnson was served with the court papers when walking off the field after the second inning.

The court eventually held a hearing several weeks later to decide whether to issue a permanent injunction preventing Johnson from playing for his new team.  The Federal League was so confident it would ultimately prevail in the Johnson case that it reportedly arranged for as many as thirty-seven major league players to jump to the new league should it receive a favorable decision from the Chicago court.  Unfortunately for the Federals, however, the state court judge issued a permanent injunction on June 3, 1914, upholding the standard player contract Johnson had signed with the Reds, on the basis that it must have been fair in light of the number of players who had voluntarily agreed its terms.  Although this decision would be overturned on appeal several weeks later -- allowing Johnson to resume his Federal League career -- the damage had been done, as the Federal League's planned raid of the major leagues fell apart following the trial court decision.

While the initial decision by the Johnson court was a significant set-back for the Federal League, the parties ultimately battled to a draw in their 1914 litigation efforts, with both sides winning several important decisions.  Perhaps more significantly, these lawsuits also set the stage for the next major phase of the Federal League's legal challenge to the major leagues, namely the federal antitrust lawsuit it filed with Judge Kenesaw Mountain Landis in 1915 (to be discussed in my next post).

Sunday, February 9, 2014

Baseball on Trial: The Origin of Baseball's Antitrust Exemption

I recently spent the better part of a year and a half researching and writing a book documenting the history of the 1922 U.S. Supreme Court case of Federal Baseball Club of Baltimore v. National League, the litigation that gave rise to baseball's antitrust exemption.  I am happy to announce that the book, titled Baseball on Trial: The Origin of Baseball's Antitrust Exemption (from the University of Illinois Press), has been released and is now available for purchase.

Baseball on Trial draws upon a variety of original source materials, including the original court records from the litigation, contemporaneous newspaper accounts, and a recently released collection of attorney correspondence from the case available at the National Baseball Hall of Fame Research Library in Cooperstown, New York.  Not only does the book document the history of the Federal Baseball lawsuit itself, but it also covers the many precursor cases arising out of the Federal League challenge to Major League Baseball in 1914 and 1915, litigation which in many ways set the stage for the Supreme Court proceedings.  Through a series of posts over the next several days, I'll be summarizing some of the more interesting findings from my research.

In the meantime, here is the publisher's official description of the book:

The controversial 1922 Federal Baseball Supreme Court ruling held that the "business of base ball" was not subject to the Sherman Antitrust Act because it did not constitute interstate commerce. In Baseball on Trial, legal scholar Nathaniel Grow defies conventional wisdom to explain why the unanimous Supreme Court opinion authored by Justice Oliver Wendell Holmes, which gave rise to Major League Baseball's exemption from antitrust law, was correct given the circumstances of the time.

Currently a billion dollar enterprise, professional baseball teams crisscross the country while the games are broadcast via radio, television, and internet coast to coast. The sheer scope of this activity would seem to embody the phrase "interstate commerce." Yet baseball is the only professional sport--indeed the sole industry--in the United States that currently benefits from a judicially constructed antitrust immunity. How could this be?

Using recently released documents from the National Baseball Hall of Fame, Grow analyzes how the Supreme Court reached this seemingly peculiar result by tracing the Federal Baseball litigation from its roots in 1914 to its resolution in 1922, in the process uncovering significant new details about the proceedings. Grow observes that while interstate commerce was measured at the time by the exchange of tangible goods, baseball teams in the 1910s merely provided live entertainment to their fans, while radio was a fledgling technology that had little impact on the sport. The book ultimately concludes that, despite the frequent criticism of the opinion, the Supreme Court's decision was consistent with the conditions and legal climate of the early twentieth century.

"[A] thoughtful and provocative analysis of one of the most controversial topics in sports law: Baseball's antitrust exemption. Grow adroitly connects recent disclosures from the Baseball Hall of Fame to advance his argument that the Federal Baseball holding made much more sense ninety years ago than contemporary commentators tend to regard it. As baseball's antitrust exemption continues to face legal challenges--including whether the Oakland A's can move to San Jose--Grow's book will undoubtedly play an influential role." -- Michael McCann, Sports Illustrated legal analyst

"The lawsuits arising from the Federal League's challenge to Major League Baseball and their aftermath defined much of the way baseball has evolved over the past century. Bolstered by original research, Grow explains both the broader picture and the intriguing behind-the-scenes machinations, and he does so in a clear and entertaining fashion." -- Daniel R. Levitt, author of The Battle that Forged Modern Baseball: The Federal League Challenge and Its Legacy

"An outstanding book based on previously unused materials, Baseball on Trial makes a truly significant contribution to the fields of baseball and the law, sports law, antitrust law, and legal history. Anyone discussing the trilogy of Supreme Court cases that created baseball's antitrust exemption needs to read this book." -- Edmund P. Edmonds, co-editor of Baseball and Antitrust: The Legislative History

Friday, February 7, 2014

Supply and Demand on National Signing Day

Wednesday was "National Signing Day" -- a day that has become an unofficial holiday of sorts for college football and its consumers.  The media coverage of the signings of Four and Five-Star recruits on this day just becomes more intensified each year.  Indeed, National Signing Day has all the resemblances of Draft Day in professional sports: The "war rooms," the depth charts, the last minute decisions, the last minute faxes, the high stress, the high fives, and all the uncertainty of which teams are going to get the top players available in the class.

But what I see on this particular day each year is a huge demand for a very small supply of people who possess unique and extraordinary skills and whose performances are necessary for the product of major college football to exist.  Unlike the rest of us in this world, these elite athletes are not fungible (replaceable) and, thus, their market value is increasing each year along with the exponentially increasing revenues generated by the industry.

The current conversation surrounding the threat to "amateurism" is fixated on the legality of NCAA rules and whether the NCAA and its members can prevail in court and, as of two weeks ago, in front of labor relations boards.  But perhaps we are grossly underestimating the leverage possessed by these elite athletes as well as the practicality of their ability to collectively demand and obtain, outside of the boundaries of the legal system, more rights and benefits from their universities in exchange for their willingness to show up and perform for us on Saturdays.  In other words, the biggest threat to "amateurism" is likely going to be basic economic principles of supply and demand.

In conjunction with a symposium last fall at the University of Mississippi School of Law, I wrote a paper discussing these issues and it will be published soon in the Mississippi Sports Law Review.  The paper is titled, "The Battle Outside of the Courtroom: Principles of "Amateurism" vs. Principles of Supply and Demand," and can now be downloaded from the SSRN link