Monday, March 31, 2014

Upcoming Oregon Law Review Symposium on the NCAA in Crisis

I'm honored to be participating in the upcoming Oregon Law Review symposium titled NCAA in Crisis: The Crossroads of Intercollegiate Sports.  The topic couldn't be more timely.  The symposium will be held on Friday April 11.

Warren Zola and I will be giving the introduction to the symposium (to be delivered by Warren).

Excellent work by Dustin Littrell, the Editor-in-Chief of the Oregon Law Review, and Kristina Cauthorn, OLR's Symposium Editor, in organizing the event, developing the panels and assembling an outstanding group of speakers.

Here is more info:
Friday, April 11, 2014
9:00 AM to 4:30 PM
Lee Barlow Giustina Ballroom, Ford Alumni Center
1720 East 13th Eugene, Oregon 97403

Oregon Law Review's spring symposium, The NCAA in Crisis: the Crossroads of Intercollegiate Sports, will provide a forum for a comprehensive inquiry into questions regarding the current state of NCAA regulations and enforcement, and an analysis of Ed O'Bannon v. NCAA and its potential implications on amateurism, anti-trust law, the gaming industry, and possible legislature involvement. Through this inquiry, Oregon Law Review hopes to formulate and analyze possible solutions to the NCAA's current issue: how does the NCAA amend its regulatory and enforcement mechanisms to create a more efficient, effective, and fair organization?
Here is the schedule:

Registration & Morning Refreshments
9:00 – 9:30 A.M.

Welcome Remarks & Event Overview
9:30 – 10:00 A.M.

Panel I: The NCAA: Regulation, Enforcement, Investigation, and Adjudication Mechanisms

10:00 – 11:30 A.M.
11:30 – 12:30 P.M.

Keynote Address
12:30 – 1:00 P.M.

Panel II: Ed O’Bannon v. NCAA & Other Current Conflicts: Potential Implications for the NCAA and Intercollegiate Sports

1:00 – 2:30 P.M.
Afternoon Break
2:30 – 2:45 P.M.

Panel III:  The Future of the NCAA and Intercollegiate Sports

2:45 – 4:15 P.M. 
Closing Remarks
4:15 – 4:30 P.M

Presenters Include:
  • Timothy Davis, Wake Forest University School of Law 
  • Marc Edelman, Zicklin School of Business, Baruch College, City University of New York 
  • Gabe Feldman, Tulane University Law School 
  • Todd Hairston, Wake Forest University 
  • Michael McCann, University of New Hampshire School of Law and Sports Illustrated 
  • Matthew Mitten, Marquette University Law School 
  • Joe Nocera, The New York Times 
  • Brian Porto, Vermont Law School 
  • Josephine Potuto, University of Nebraska 
  • Stephen Ross, Penn State Dickinson School of Law 
  • Rodney Smith, Thomas Jefferson School of Law 
  • Jeffrey Standen, Northern Kentucky University School of Law 
  • Warren Zola, Boston College
This should be an outstanding event! For more info, click here.

Sunday, March 30, 2014

Amicus Brief in Christie, et al v. NCAA, et al

I recently co-authored (with Tassos Kaburakis and John Holden) and served as counsel of record in connection with a cert stage amicus brief filed in the New Jersey/PASPA case.  This case is now at the U.S. Supreme Court ("SCOTUS") level.  The SCOTUS docket can be found here.  A link to the amicus brief is here.  I penned a short piece summarizing New Jersey's cert petition here.

Unlike the more common 9,000 word merits stage amicus briefs (filed after SCOTUS has granted cert), cert stage amicus briefs are limited to 6,000 words.  As such, a number of findings were left on the cutting room floor.  One of the most interesting was legislative history indicating that the senators debating the bill (S. 473) were unsure about which states would be exempted under PASPA's unique grandfathering clause.   For example, one senator posited that he thought South Dakota would/should be exempted.  PASPA passed by a 88-5 vote.  Wisconsin senator Herb Kohl, the owner of the NBA's Milwaukee Bucks, did not vote "yes" or "no" on PASPA, opting for "present" instead.  Six senators did not vote at all.

The cert petition (and two other amicus briefs) focus on PASPA's interaction with anti-commandeering and equal sovereignty arguments stemming from the Constitution's Tenth Amendment.  We primarily focus on PASPA's text vis-a-vis the Intellectual Property Clause (Article I, Section 8, Clause 8) of the Constitution.  We spend time examining Sec. 3703 of PASPA.

April 21, 2014 is the deadline for the NCAA/NBA/NFL/NHL/MLB (original plaintiffs) and DOJ (intervenor) to file a response to the cert petition.  At some yet-to-determined date, the justices will decide whether to grant the cert petition.  Stay tuned.  

Saturday, March 29, 2014

Tort Law and Journalism Ethics

Mike's post yesterday about the Peoria Star's publication of a picture of a high school athlete holding his two middle fingers up concerns a topic of my 2009 law review article in which I discuss at length how journalism ethics codes can and should be incorporated into tort law standards for defamation, false light, and public disclosure of private facts claims.

In essence, the tort of false light affords a remedy when the press oversteps its bounds by the careless or highly offensive manner in which facts are presented.  False light's resemblance to defamation has caused confusion in the courts as to the proper balance of the First Amendment.  The source for much of this confusion emanates from Time, Inc. v. Hill in which the Supreme Court held that the actual malice standard applies to false light claims involving false publication of matters of public interest.  The actual malice standard requires a showing that the defendant published a factually inaccurate report with knowledge of its falsity or in reckless disregard of the truth.  Indeed, the actual malice standard has preempted many false light claims in the courts.

However, the actual malice standard is capable of application only when the false light claim involves a publication that contains factual inaccuracies.  But false light is not limited to publications that contain factual inaccuracies; it also encompasses a publication that is literally or substantially true but which creates an erroneous or misleading impression that renders the publication susceptible to inferences casting the plaintiff in a "highly offensive" false light or making the plaintiff out to be something he or she is not.  In this latter context, the actual malice standard simply does not work because the standard is premised on the publication of false information (and there is none).

In my article, I recommend (1) further clarification by courts as to when the actual malice standard applies in false light claims and (2) consideration by courts of a publisher's motive in assessing the degree of "offensiveness" for purposes of false light claims.  Here is an excerpt, which I believe is squarely on point with the Peoria Star's publication:

From a First Amendment standpoint, courts should be cognizant of the material distinction between a critique, which is not actionable, and a misleading or an erroneous inference that makes the plaintiff out to be something he or she is not and thereby casts the plaintiff in a highly offensive false light.  The former is constitutionally privileged because it has social value and entails the legitimate motive or purpose of engaging in “uninhibited and robust debate.”  However, the First Amendment interest is weaker when the press acts with a motive or purpose of making the plaintiff out to seem pathetic or ridiculous, regardless of whether the plaintiff is a public person or private person. Perhaps the First Amendment interest is weaker in this context because journalism ethics are being compromised—the two have a tendency to go hand in hand.  Indeed, the motive of the press is certainly relevant from a journalism ethics standpoint.  Courts are sometimes hesitant to consider a publisher’s motive in finding actual malice, which is understandable when the focus of the inquiry pertains to the publisher’s knowledge of the falsity of the information.  But motive can and should be a relevant factor for the courts in assessing the degree of offensiveness in which the plaintiff is placed in a false light.

Friday, March 28, 2014

Jalen Brunson, his Middle Fingers & the Law of False Light

Jalen BrunsStevenson’s point guard apparently will play least one more seasfor Patriots. | SUN-TIMES MEDIA PHOTOChicago is abuzz over a high school basketball state semifinal but it has nothing to do with the incredible performance on the court phenom by Jalen Brunson.  Brunson was suspended by the Illinois High School Association (IHSA) after a photographer captured a still image of Brunson holding his two middle fingers up during a game and then publicized the image.

Brunson -- a junior point guard at Adali E. Stevenson High School in Lincolnshire, Illinois, and the son of former NBA point guard Rick Brunson -- is one of the most recruited basketball players in the country.  In last Friday night's Class 4A boys state semifinal game, Brunson scored a state-tournament record 56 of his team's 68 points in a 75-68 loss.  During that game, Brunson threw his hands up after one of his three pointers was waved off by an official.  While doing so, he momentarily extended his middle fingers on both hands.

Here is the still image:


Pretty damning, no?  Well, take a look at the video for the entire sequence and then ask yourself if it still looks bad.  And then look at this photo sequence in an excellent article by photographer Scott Strazzante of the Chicago Tribune:

Then consider that no one at the game noticed.  Not the refs, not the fans, not either team's coaches or their players.  Not Brunson's parents, who were there, or parents of other players.  Literally no one.  And no one after the game said anything, either.

But someone noticed: photographer Ron Johnson of the Peoria Star.  He published the image on-line with the caption "Jalen Brunson of Lincolnshire Stevenson makes a gesture to the Chicago Whitney Young crowd." It sparked an uproar and the IHSA decided to suspend Brunson for the following game.  Brunson apologized on Twitter, but stressed that he did not intentionally give the middle finger.  It occurred unintentionally while he had thrown up his hands in frustration.
Brunson and his family appeared at a hastily called hearing with the IHSA set just hours before the consolation game. They argued that the photo -- a mere still image representing a fraction of a second in a bodily movement -- was taken completely out-of-context and that the IHSA was punishing Brunson because of public reaction, not because of wrongdoing. They also argued that no one at the game noticed. The IHSA agreed and the suspension was reversed.

There is now much debate about the journalistic ethics of Johnson capturing one still image and running with it.  In Johnson's defense, the image is real and was not doctored.  It captures Brunson's body at a split second in time when Brunson unquestionably extended both middle fingers and made what in the United States and much of the world is an obscene gesture.  There is no possible defamation claim because truth is an absolute defense, and the First Amendment protects Johnson as well.

But that doesn't mean it is fair or ethical to attribute a narrative to a split second shot.  It stands to reason that if someone photographed us all the time, especially while playing sports, we might unknowingly make gestures that are offensive.

There is also a potential legal angle through the tort of false light, especially if Brunson believes the image will cause him long-term reputational harm. Generally speaking, false light is when a defendant intentionally or recklessly makes a statement (be it in text or visual) that is technically not false but is badly misleading—it places the plaintiff in a false light—and would be highly offensive and embarrassing to a reasonable person. While truth is an absolute defense to defamation, it is not an absolute defense to false light. False light is a recognized tort in Illinois.

Here is a good example of a false light claim from an article by Patricia Avidan in the Stetson Law Review:
In December 2003, a Pensacola, Florida jury awarded Joe A. Anderson Jr. $18.28 million because it found that an article in a local newspaper portrayed Anderson in a false light.  The claim stemmed from a Pensacola News Journal article focusing on Anderson’s road-paving business and the political influence it wielded. The article also disclosed that, in 1988, Anderson shot and killed his wife.  According to Anderson, the facts in the article were true, but the paper’s failure to state that authorities determined that the shooting was a hunting accident until two sentences after the article mentioned Anderson shot and killed his wife created the false impression that Anderson had murdered his wife. Anderson claimed that the story cost him over $18 million in business, and the jury agreed, finding that the article’s structure intentionally created a false impression
It will be interesting to see whether the photo leads to any legal action. The case highlights how star athletes—kids really—are placed under a microscope and how with today's technology literally their every movement can trigger controversy.

Thursday, March 27, 2014

TTU Law Prof Reelected President of Faculty Athletic Reps Association

Certainly must be an interesting time to have a leadership role in college athletics.

Texas Tech's Brian Shannon, the Thornton Professor at the School of Law, has been reelected President of the D-IA Faculty Athletics Representatives Association.

The FAR is a required position under NCAA rules held by a faculty member at Association schools.  Georgia's David Shipley has this paper on the role of a law professor filling the FAR job.

Professors Shannon and Shipley are among a number of law profs who currently serve or have previously served as NCAA FARs. Among others on that list are my former colleague Jim Klein (Charleston), Patricia Bellia (Notre Dame), Jim O'Fallon (Oregon), Clare Pastore (USC), Eleanor Myers (Temple), Gary Neustadter (Santa Clara), Milt Shroeder (ASU), Ronald Rychlak (Mississippi), and I'm sure several others.

Wednesday, March 26, 2014

Cain Kolter's Big Win and Next Steps

It was a historic day in sports law: a regional director of the NLRB ruled that Cain Kolter and other Northwestern football players can form a union.  There are many steps ahead.  I have a Q/A on with Zac Ellis and I was a guest on PBS Newshour tonight.

Friday, March 21, 2014

Kain Colter is an Employee by Professor Steven Willborn

The following op-ed is written by Professor Steven Willborn, the Judge Harry A. Spencer Professor of Law at the University of Nebraska College of Law (where he served as the Dean between 2001 and 2009).

Steve was my mentor when I started as a law professor back in 2005 and while I was a member of the Southeastern Association of Law Schools. He is one of the most insightful persons in the legal academy, and is a leading expert on education law, labor law and employment law.-- Mike McCann

* * *

Kain Colter is an Employee

Steve Willborn
Spencer Professor of Law, University of Nebraska

Kain Colter, a quarterback, is trying to unionize the Northwestern football team, and the NCAA is worried. To unionize under the National Labor Relations Act (NLRA), Colter needs to prove he is an “employee.” The NCAA fears that labeling college athletes as employees will upend the entire structure of college athletics. It is most worried about one part of that structure – the financial structure which produces billions in revenues with a primary workforce that earns, well, not much.

It turns out that Colter is an employee, but the NCAA should not be so worried. Instead, it should plan for the day when college athletes are considered employees.

Whether Colter is an employee under the NLRA is a close call. The closest cases involve teaching assistants at universities. The National Labor Relations Board has held that they are “primarily students” and, thus, not employees under the NLRA. But some of the reasons the Board gives for teaching assistants do not apply to college athletes, such as the close tie between teaching and academic program and the close personal relationships with professors. But maybe the Board will think Colter is more like a singer in the chorus at the Seattle Opera than a teaching assistant. These singers signed “letters of intent” to sing with the opera, worked under close supervision, and received minimal compensation. The Board found them to be employees. Maybe that’s the better analogy. In either event, it’s a close call for Colter.

But even if Colter is not an employee under the NLRA, it does not mean he is not an employee under every statute everywhere. He may have a stronger claim that he is an employee under the Fair Labor Standards Act, which requires minimum wages and overtime premiums. If injured, he might seek damages as an employee under the workers’ compensation laws. If sexually or racially harassed, he might seek recourse under employment discrimination statutes. (Things like that have been known to happen in football.) Colter himself might be an employee under dozens of different statutes. Nationally, college athletes could make claims under hundreds of different employment statutes, each with their own definition of “employee.” This is why Colter is an employee. Even if he is not one under the NLRA, he is one somewhere, for some purpose. Looking beyond Colter, college athletes have so many opportunities to make the claim under so many statutes that, someday, somewhere, they are sure to be classified as employees.

The NCAA should be worried about this. Many of its regulations simply do not align well with some employment statutes. But the NCAA shouldn’t be completely distraught. Unionization, for example, would not necessarily conflict at all with any NCAA regulations. It would only require Northwestern to sit down with the football players and talk. No violation there; the NCAA says it already does that. The NLRA doesn’t require the NCAA or Northwestern to agree to any changes the players might demand that would conflict with current practices. None. Similarly, I do not know of any NCAA regulations that say that college athletes cannot seek full recourse if they are sexually or racially harassed.

Some employment regulation would conflict with current NCAA policies. The NCAA’s current practices, for example, would run into trouble under the Fair Labor Standards Act which requires modest payments for work, mostly in cash. But maybe requiring “fair” labor standards wouldn’t be a bad thing? Maybe it would even be a good thing?

So, yes, the NCAA should worry. But mostly it should plan for the inevitable day when college athletes are determined to be employees. The NCAA will have a more challenging task when that day arrives. Complying with employment laws is complicated and expensive. But that’s true for all employers. For better or worse, we as a society have decided that those complications are worth it to ensure fair wages, nondiscrimination, and the other things protected by employment statutes.

If it tries hard, the NCAA will be able to accommodate to this new world. We know that sports leagues can be managed even when the players are employees. There are a few fairly well-known sports leagues that manage to operate under that condition, such as the National Football League and the National Basketball Association. (Although their profit margins tend to be much lower than those of big-time college football teams.) It can be done.

So Kain Colter may win his NLRA case and be an employee. Or he may lose and we will have to wait for the day when he or another college athlete is determined to be an employee under some other employment statute. But that day will come. And the NCAA should begin planning for that day now.

Thursday, March 20, 2014

Alan Milstein on lawsuit filed by Jeffrey Kessler against NCAA own Alan Milstein has some terrific insight on the new NCAA lawsuit in this article by Erin McClaim for NBC News, including raising the issue of whether high school players may hire agents if they can negotiate compensation with colleges.

Here is an excerpt:

Milstein said he believes this case goes several steps beyond the other NCAA lawsuits — and probably a step too far.

He stressed that he is a strong critic of the NCAA, which he described as a “walking, talking antitrust violation,” and supports a system under which college athletes would be paid an hourly wage, just as students working the concession stand are.

They could even be allowed to negotiate their own shoe endorsements, he said, but the suit filed this week would lead to universities’ gambling huge sums of money on high school stars with agents, he said.

“I don’t think anybody wants college athletics to become pro athletics,” he said. “This essentially says the schools are going to compete and pay the highest bidder for the star athletes. I think we’re a long way from that ever becoming an eventuality.”

To read the rest, click here.

Monday, March 17, 2014

Judge Wilken deems Alston v. NCAA a Related Case to O'Bannon and Keller v. NCAA

In a move that will make it harder for the NCAA to transfer the ever-expanding In Re NCAA litigation out of California to another court, such as one in Indiana, Judge Claudia Wilken has just deemed former West Virginia running back Shawne Alston's lawsuit v. NCAA to be a related case.  Alston sued the NCAA earlier this month in the the U.S. District Court for the Northern District of California -- the same court hearing O'Bannon and Keller -- arguing restrictions on athletic scholarships violates antitrust law.  He hopes the suit will become a class action.  Today was also eventful because four current players, led by sports attorney Jeffrey Kessler, sued the NCAA over athletic scholarships in a lawsuit similar to one brought by Alston (Kessler's case is unaffected by Judge Wilken's order).

One of Alston's lead attorneys, Jon King of Hagens Berman, explained to me the impact of Judge Wiken's order:

1. McCann: Am I right that this means that the Alston case is now, like Keller and O'Bannon, part of In: Re NCAA? 

Jon King: Yes, although all 3 cases will proceed on different schedules – just as Keller and O’Bannon currently are on different schedules.  The main import of today’s ruling is that it will make it much tougher for the NCAA or the Conference Defendants to successfully argue that the Alston case should be transferred to another district court, such as in Indiana, where the NCAA is headquartered.

2. McCann: Will you and other lawyers for Alston be part of the decision-making process for the plaintiffs in O'Bannon and Keller?
Jon King: No -- everything is separate in terms of the decision-making – but it happens to be that my firm is lead counsel in Keller, and one of the two firms that filed Alston – the effect of a “related case order” like today’s is really more about the Judge –means that the Judge will have oversight over all of the cases and make sure they are all coordinated and efficient – that is a lot easier to do if one judge is presiding over all of the cases – for example, it can help so that the same witness does not need to be deposed multiple times by multiple groups of plaintiffs – can get everything coordinated in one spot and on one day.  Some of this is easier said than done, but definitely easier to do if only one judge involved.

3. McCann: I assume this also means that, given the similarities of Kessler's case to the Alston case, Kessler's case may eventually be deemed a related case as well, even if filed in a different state?

Jon King: It is a more complicated question as to his case – because it was filed in another federal court, in New Jersey, as opposed to here in the Bay Area – there are a few other ways in which cases in these circumstances can be combined – one of the ways is by going before the Judicial Panel on Multidistrict Litigation, a panel of 7 federal judges that decides where to centralize cases where there are similar ones in different districts around the country.

Testing the NBA Draft Waters in 2014

As you fill out your brackets for the impending NCAA March Madness tournament, it's time for my yearly rant on the preposterous rules that the NCAA imposes on men's basketball players and their ability to consider leaving early for the NBA. Want to know how absurd the NCAA's rule regarding their NBA draft early-entry deadline is? It has been called "one of the silliest, most cynical and least student-athlete-friendly decisions ever." [And there is a significant amount of competition by the NCAA for this award.]
Consider the following:
  1. The NBA's draft eligibility rules, found in Article X, Section 1 of the CBA, require that a player be 19 years old, thus the concept of "one and done";
  2. In a rare moment of logic, the NCAA used to allow prospects to "test the waters" by working out with teams and getting an appraisal from the NBA's Undergraduate Advisory Committee on their draft potential;
  3. The NBA has several deadlines regarding entry into the 2014 Draft, they are: 
    • April 27th: Deadline to declare for the NBA draft
    • May 20th: NBA draft lottery
    • June 16th: Deadline to withdraw from the NBA draft
    • June 28th: 2014 NBA Draft
  4. The NCAA also has a deadline by which players must declare their intention to return to college. The kicker? The NCAA requires that college athletes announce by April 15th.  A full 62 days before the NBA requires they do so.
Thus, the incongruity of these deadlines, the NCAA requires a decision before ANY of the NBA dates kick in. It is no coincidence that the NCAA deadline of April 15th is early, it's so that college coaches are able to know who is returning to their rosters before the April 16th men's basketball signing period. This imposed deadline was created with the direct purpose of assisting in recruiting and has nothing to do with what's best for the college athletes.

The NCAA program which allowed prospects the ability to work out and get an unbiased and informed perspective on their pro potential is moot. Why? Because NBA teams won't work out players until their deadline (April 27th) has passed and someone has declared for the draft. And despite NBA Commissioner Adam Silver's intent on having the NBA, NBPA, and NCAA all in a room agreeing upon dates, age eligibility requirements, and other issues (as reported here at Boston College's Chief Executives' Club of Boston event) there is the legal barrier to this conversation ever taking place: collusion. The NCAA is not a legally recognized bargaining entity.

There's been plenty written about the absurdity of these rules:
  1. In 2011 I wrote a law review article outlining the history of the NBA draft and arguing for change;

  2. Darren Heitner wrote this piece. Marc Isenberg penned this article. Andy Katz here and here, Eamonn Brennan here.

  3. There was, of course, the great and path-breaking law review article written in 2004 by our own Michael McCann titled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."  McCann was the first person to show through empirical analysis of both on and off the court performance that players skipping college were the best players in the NBA and that an age restriction is irrational. McCann followed up Illegal Defense in 2005 with an empirical study on NBA players who have been arrested and their education level.
Again, nothing new in this post, just a reminder of the asinine nature of the NCAA restricting college students from making an informed choice about their future careers.

Sunday, March 9, 2014

Postscript: The Ends Do Not Justify the Means in MLB's Current PED Investigation

I previously wrote that the ends do not justify the means in MLB's PED investigation, and that payments to witnesses for testimony are unethical.

Now, the New York State Bar Association has come out with Ethics Opinion 997 that reiterates that lawyers may not pay for witness testimony beyond reasonable time and expenses incurred by that witness (for some strange reason, purchasing physical evidence is now O.K. in New York).

So if it is true that MLB's lawyers participated in paying witnesses in the A-Rod case millions of dollars, and if the arbitrator allowed such testimony, what will happen to these lawyers and arbitrator?

We'll have to wait to see, but no matter how big or powerful, good trial lawyers know that if you have to pay for testimony, you don't have a case, and these ethics rules don't change, just because you want to bag a big bad fish.

Moreover, just like I predicted, this lawsuit was dropped by MLB once A-Rod capitulated, which proves that it was frivolous to begin with and designed solely to procure "evidence" that MLB otherwise could not have gained.

I'm sure that people feel as sorry for A-Rod as they do for Lance, but however good it feels to see these guys brought to justice so-to-speak, Justice is not done, when lawyers and arbitrators engage in illegal use of paid witness testimony, and everyone involved should be, at the very least, embarrassed, if not ashamed.

Saturday, March 8, 2014

Gambling v. PEDs and the Baseball Hall of Fame

Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. The excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic and uncertainty that surrounds PEDs.

But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.

Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.

Friday, March 7, 2014

Much sports procedure

Just by coincidence, Deadspin has three stories that touch on the importance of procedure in and around sport.

1) Jonathan Mahler promotes the argument that the way to get the NCAA is for a single college athlete or high school senior to seek a declaratory judgment that NCAA rules regarding student-athlete compensation violate the antitrust law and an injunction against continued enforcement of those rules. Mahler argues that this lawsuit and this more-limited remedy avoids the extensive delays, distractions, and discovery that come with class actions and with claims for damages. The Unfortunately, the article ignores a few other procedural issues that could present problems, including standing and mootness (the NCAA might run out the clock until the player uses up his eligibility, mooting his request for injunctive relief).

2) Tampa Bay Rays manager Joe Maddon is drilling his players on continuing plays after the apparent third out of an inning, in case the third out is overturned on video review. The idea is that this can affect where the runners are placed after review. If the Rays defense get a "fourth out", that becomes the third out and the inning still ends. And if the Rays offense keeps running, the runners may get the extra base when the umpires replace them after video review. There are holes in the replay system that MLB has not yet even anticipated.

3) This story discusses the controversy over the women's indoor 3000 meters championship two weeks ago, which revolved around appeals procedures their manipulation, the too-cozy relationship between Nike and USATF, and the limits of video evidence as showing anything "conclusive" or "objective."

Concussion Awareness Event at the Indiana Tech Law School

The Indiana Tech Law School is pleased to present a timely concussion awareness event focusing on preventing brain injury in student athletes.  This event entitled "Your Role in Preventing Brain Injury in Student Athletes" will occur on March 11th, at 6 p.m. in Fort Wayne, IN, at the Schaefer Gymnasium on the Indiana Tech campus.  Chris Nowinski, the co-director of the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine, will provide the keynote address.  The event is free and open to the public.

Thursday, March 6, 2014

Vijay Singh v. PGA Tour: Next Steps

Vijay Singh's lawsuit threatens to expose the secretive ways the PGA Tour doles out punishment to Tour players in violation of its Anti-Doping Program. In this new video for, I tell Jessica Marksbury why fighting a 34-time Tour winner won't be easy:

2014 DePaul Journal of Sports Law and Contemporary Problems Symposium

On Friday March 7th, starting at noon, DePaul University College of Law will host the latest iteration of its Sports Law Symposium.  This year's topic is "The Economic Playing Field — A Symposium On The Legal Issues Facing Today’s Athletes".  I am honored to be returning to speak at this event along with fellow SLB contributor, Marc Edelman.  We, along with attorney Martin Greenburg will discuss "The Business of College Athletics" to kick-off the day.  We will be followed by Lisa Levine (US Soccer), Evan Whitfield (Schiller, DuCanto), and Cari Grieb (John Marshall) who will discuss "Issues Arising in the Representation of Professional Athletes".  For further information and registration, please follow the link here

Monday, March 3, 2014

The Role of Fans

Over the past several decades, sports have become far more fan interactive. Want proof? According to the Fantasy Sports Trade Association's data over 33 million people played fantasy sports in 2013 and they generated well over $ 1 billion in revenue. For those interested in better understanding the role of fans in sports moving forward, I call your attention to two items:

1. Catalyzing Fans

Two of our own contributors--Michael McCann and Howard Wasserman--collaborated with Dan Markel to write a law review article titled "Catalyzing Fans." You may download this paper here. According to the authors:
"This paper proposes the development of Fan Action Committees (“FACs”), which, like their political counterpart (PACs), could mobilize and empower fans to play a larger role in the decision-making associated with which “production teams” the talent will work. We outline two institutional options: FACs could directly compensate talent by crowdfunding, or they could make donations to charities favored by talent. We then discuss both obstacles and objections from a variety of policy and legal perspectives ranging from competitive balance to distributive justice. Finally, we consider possible extensions of the FAC model as well as offer some ruminations on why FACs haven’t already developed.
 Importantly, FACs create the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimination, has relevance for a wide range of human endeavor where bilateral contracts have third party externalities that are not currently calibrated or adequately valued."
[Editor's Note: This piece is currently being reviewed by law reviews and journals. If you are interested in publishing this article, please contact Professor Markel immediately and directly]

2. Fans Paying College Athletes

Last year, I authored an article for The Huffington Post titled "Time to Embrace Change in College Athletics."  I wrote, in part, that:
"At some point in the not too distant future, the structure of college athletics as we know it will change. There are a multitude of possibilities of what this future world may look like -- and it may be far stranger than either George Orwell or Aldous Huxley could predict. Open markets and competitive bidding wars for high school players, salary caps for conferences, revenue sharing, agent representation and sponsorship deals for college athletes, and maybe even a student athlete union all within the realm of possibility."
Introducing FanPay, the brainchild of Tony Klausing.  Tony writes: "The idea is that fans would contribute to a pot of money to pay student athletes.  This money is escrowed, then when the student graduates, he has the right to claim the funds--or else are refunded to the contributor in full."  To see a beta of this website, check it out here. If you'd like to contact Tony directly with thoughts or comments, you can email him at:

Sunday, March 2, 2014

New Sports Law Scholarship

Recently published scholarship includes:

Marisa G. Huber, Exposed?! The applicability of US maritime law to foreign sailors competing for foreign teams in the 34th America’s Cup San Francisco, 25 UNIVERSITY S.F. MARITIME LAW JOURNAL 209 (2012-13)

Robert H. Lattinville, and Bennett H. Speyer, The modern athletic director: rising expectations, risks and rewards, 12 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 232 (2013)

Mark W. Lenihan, Comment, Major League Soccer scores an own goal: a successful joint venture attains market power in an international sport, 62 DEPAUL LAW REVIEW 881 (2013)

Tiffany Lee, Note, Fan activities from P2P file sharing to fansubs and fan fiction: motivations, policy concerns, and recommendations, 14 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 181 (2013)

Frank J. Marallo, Jr., Note, Permeating the good old boys club: why holding the commissioner of baseball to a fiduciary duty of loyalty is in the “best interests” of the game, 7 BROOKLYN JOURNAL CORPORATE FINANCE AND COMMERCIAL LAW 475 (2013)

Cassie Merkel, Comment, Misspent money: how inequities in athletic funding in New Jersey public schools may be the key to underperformance, 23 SETON HALL JOURNAL SPORTS AND ENTERTAINMENT LAW 385 (2013)

Brian L. Porto, Can the NCAA enforcement process protect children from abuse in the wake of the Sandusky scandal?, 22 WIDENER LAW JOURNAL 555 (2013)

Kemper C. Powell, Note, Beyond Brady and Anthony: the contemporary role of antitrust law in the collective bargaining process, 14 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 147 (2013)

J. Brad Reich, When “getting your bell rung” may lead to “ringing the bell”: potential compensation for NFL player concussion-related injuries, 12 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 198 (2013)

 Robert M. Sagerian, Note, A penalty flag for preemption: the NFL concussion litigation, tortious fraud, and the steel curtain defense of Section 301 of the Labor Management Relations Act, 35 THOMAS JEFFERSON LAW REVIEW 229 (2013)

Jeffrey Standen, Assumption of risk in NFL concussion litigation: the offhand empiricism of the courtroom, 8 FIU LAW REVIEW 71 (2012)

Patrick L. Stewart, Comment, International student athletes in the NCAA: professionals or exploited children?, 35 HOUSTON JOURNAL OF INTERNATIONAL LAW 219 (2013)

Cyntrice Thomas et al., The treatment of non-team sports under Section One of the Sherman Act, 12 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL 296 (2013)

Matthew L. Winkel, Note, The not-so-artful dodger: the McCourt-Selig battle and the powers of the Commissioner of Baseball, 31 CARDOZO ARTS AND ENTERTAINMENT LAW JOURNAL 539 (2013)

Kyle R. Wood, Note, NCAA student-athlete health care: antitrust concerns regarding the insurance coverage certification requirement, 10 INDIANA HEALTH LAW REVIEW 561 (2013)

Joshua Winneker, Protecting the unprotected: creating an anti-retaliation policy for professional athletes that exercise their legal rights in participant vs. participant liability contact sports, 12 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL (2013)

Robert H. Wright, and Josephine M. Ellis, Assumption of the risk in boat racing: a study in maritime jurisprudence. 11 LOYOLA MARITIME LAW JOURNAL 271 (2013)