Tuesday, April 29, 2014

Sterling, Silver, and statutory interpretation

Allow me to add to Mike's analysis of NBA Commissioner Adam Silver's punishment of Clippers owner Donald Sterling, raising the possibility that the termination of ownership is on stronger footing than the fine and suspension.

Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.

The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Association" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.

First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on that for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).

But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all.  Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.

Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.

Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.

Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions ("conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will,  both to show support for Silver's leadership and to keep the players happy), appears proper under league rules. Note that I am disagreeing with Mike on this one, just based on the plain language of the laundry list in Article 13(a).

Finally, it will be interesting to see how the owners approach termination of ownership. Typically, under Article 14A(c), terminating a franchise transfers control to the league. But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.

Legal Analysis of Adam Silver's Punishment of Donald Sterling

I have a couple of pieces on SI.com about the the big news of the week:

Sterling, NBA set for epic legal fight over Clippers (April 29)

What's next for NBA in Donald Sterling case from a legal standpoint? (April 26)

More random thoughts on Donald Sterling

1) File this under "completely missing the symbolism." Last night, the Miami Heat recreated the Clippers' Sunday pre-game protest, leaving their warm-up jackets on the floor and wearing their shooting shirts inside-out, I guess as a show of solidarity. But the Clippers did this to symbolically reject that team name (and its association with that team owner), to say we play for ourselves and not for that name (and its association). But why are the Heat players rejecting the Heat name and ownership, which is what they did by obscuring their logos? It makes no sense, showing that the symbolic point of the warm-up protest (as opposed to wearing black socks, which other teams can and have recreated because it is generic) was lost or missed entirely.

2) A lot is being made of Donald Sterling's 30+-year history of misbehavior--particularly the almost-$3 million settlement of government-initiated lawsuit alleging discriminatory housing practices and the race- and age-discrimination lawsuit by former GM Elgin Baylor, in which Sterling prevailed--and why the NBA did not do something sooner. This conversation reminds me of the discussion following the multi-million-dollar sexual harassment verdict against Isiah Thomas in 2007, where then-Commissioner David Stern said the league would not get involved because this was a civil suit and not a criminal matter. I argued at the time that we needed a more-nuanced thinking, that there is a difference between civil matters directly implicating one's role in the league (such as a lawsuit claiming someone engaged in sexual harassment while running an NBA team) and other matters (such as a payment dispute with the contractor doing an addition to his house).

But I am wondering how to think about that line with respect to Sterling. The Baylor lawsuit fits my earlier framework, but is a mixed bag--while there were some damning allegations about Sterling's racist statements and attitudes, a jury ultimately found for Sterling. So while evidence shows him doing and saying some reprehensible things, he did not do anything legally wrong (based on the jury conclusion). Which piece should the league have seized upon?

More importantly, what about that housing-discrimination case? On one hand, how he operates one business says nothing about how he operates his NBA team; on the other hand, how he operates one business says everything about how he operates his NBA team. Are bad business practices in an unrelated business a bellwether of an owner's management style or are they the equivalent of a dispute with the contractor working on his house?

I am trying to figure out how to treat players, owners, and management consistently with respect to league punishment and non-league behavior. I wouldn't want a player suspended because of how his string of car dealerships are run. Should it be different for owners and, if so, why?

Monday, April 28, 2014

Protesting sport

People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.

It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are  effective, they have come to be seen as a strong means of political expression if not change.

For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.

The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.

A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because  they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of some team other than their beloved franchise is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.

A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.

Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.

Sunday, April 27, 2014

Cheering speech

(H/T: Deadspin)
Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBA order them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?

Saturday, April 26, 2014

Legal Landscape of College Athletics

Last week was an active one for reform efforts in college athletics. Here's a brief rundown of the events that transpired:

1. As most people know, on Friday, 76 Northwestern football players cast votes on whether or not they would like to unionize. This action follows the NLRB's ruling defining these students as employees. While word is leaking out that the vote to unionize has probably not passed, the count will be sealed until the NLRB, on appeal to the national office, makes a final ruling as to whether or not these college athletes are employees. To be sure, one should expect the NRLB's final ruling to be challenged in federal court.

There is a great article written by sports lawyer Don Yee (agent to Tom Brady among others) on the missed opportunity by Northwestern, a wonderful institution of higher education, to turn these events into a teaching opportunity. This article is definitely worth a read here.

2.  On Thursday it was announced that the NCAA D1 Board of Directors has endorsed a new governance structure which will be voted on in August. According to an NCAA press release, the reform is "aimed at allowing the division to be more nimble, streamlined and responsive to needs--particularly the needs of student-athletes." This is the first indication that the NCAA may allow for different governing rules for the schools that generate significant revenue (i.e. Power 5 Conference members) versus the 1,200 NCAA institutions that do not.

In theory, the Power 5 conferences would be able to provide increased compensation: full cost of attendance, medical insurance, relaxed transfer rules etc. that address the welfare of college athletes in ways that are restricted under the current system.

Side note: For those who are asking what would this system look like, please read my Op Ed piece of last summer in The Chronicle of Higher Education which outlines a proposal that looks strikingly similar to the changes being discussed.

3.  Big news was broken yesterday by SLB's Editor-in-Chief, sports law investigative reporter Michael McCann, that there is a new grant-in-aid antitrust federal lawsuit: Floyd v NCAA. What makes this lawsuit unique is that it includes both male and female plaintiffs.  You can read about this case here.

[Editor's Note: Well done Mike. For those who want to learn how to succeed in "Sports Law Investigative Reporting" don't forget to sign up for a course being offered at UNH Law School by Michael McCann and SI's BJ Schecter this summer. Details can be found here.]

4.  At the beginning of the week, the NCAA drew a line in the sand (yet again) by stating that the O'Bannon litigation was likely going to trial because "we've all drawn our swords." There has been no meaningful dialogue on settlement despite the directive by the judge. To be clear, we are likely to head to trial in June--which should give us plenty of entertainment over the summer months. Here's a nice summary from CBS' Dennis Dodd.

Furthermore, as reported this morning by USA Today's Steve Berkowitz, the NCAA is asking the courts to dismantle or delay the O'Bannon case. Plaintiff's attorney Michael Hausfield indicates that this is a reflection of the NCAA's concern about going to trial on June 9th. Details here.

5.  Finally, a tip of the cap to noted sports economist Andy Schwarz who, in response to Jay Bilas, provided a definitive list of academic literature discussing whether or not the NCAA is an economic cartel.  It's a tremendous effort by Andy which you should definitely take a look at here.

6. To brighten your mood, I leave you with with SouthPark's take on the situation with this video.

Wednesday, April 23, 2014

Wiggins Never a Jayhawk? Foreign Student Athletes May be Ineligible to Play if College Athletes are Employees

There are many potential consequences to college athletes being deemed employees. One potential consequence that hasn't been discussed, and that was brought to my attention in a reader e-mail, is the impact employee status would have on foreign students in college who also play sports.  These student athletes are in the United States on F-1 Visas.

Immigration attorney Theodore Chadwick of the Wisconsin-based Grzeca Law Group raises this issue and emails me what it all means:

* * *

http://www.grzecalaw.com/cm/images/T%20%20Chadwick.jpeg I've been following the potential unionization and “employee” designation of student athletes, and given my occupation, I thought of another wrinkle that I haven’t seen addressed in any news articles or opinions.

Students from foreign countries are in the United States pursuant to F-1 status, which generally allows for studies, but not work. Only under limited situations are foreign students allowed to be employed while enrolled: either for on-campus employment of 20 or less hours, or based on financial need. Student athletes practice far more than 20 hours per week and must travel for games. 

Thus, it appears that if student athletes are deemed employees, foreign students would be ineligible to play (work) based on current immigration laws.

 * * *

So if college athletes were employees, Andrew Wiggins, a Canadian and likely top 3 pick in the 2014 NBA draft, may not have been able to play at University of Kansas this past year.  It has been reported by some outlets that Wiggins may have dual Canadian-U.S. citizenship because his dad, former NBA player Mitchell Wiggins, is an American.  Assuming Andrew Wiggins only has Canadian citizenship and would not seek U.S. citizenship, what might Wiggins have done instead this past year?

The NBA wasn't an option due to the 19-year-old plus one year removed from high school eligibility rule.  So I imagine Wiggins would have played professionally abroad for a year and waited out the NBA's eligibility rule, much like Brandon Jennings did from 2008 to 2009.  During that year, Jennings earned more than $1.6 million in salary for Lottomatica Roma while also receiving substantial income from Under Armour in an endorsement deal.

Much less likely, Wiggins could played in the D League, where he would have been eligible, but where salaries are capped at around $25K.  While endorsement income would have supplemented his D League salary, Wiggins would still have earned much more playing abroad.

Or Wiggins could have simply sat out the year and worked out in preparation for this June's draft.

But the larger point is Wiggins may not have been in college basketball for a year, and the same would be true of other star college players who aren't U.S. citizens.

Update: Attorney Chadwick, in response to Twitter comments, emails me several points which I excerpt below:

* * *

As some comments state, there might be a fix with another visa (probably a P, not an H-1 or O as they’ve suggested), but it would be a bit more complicated than simply switching categories...[T]o get P status, the individual or team must be “internationally recognized,” which is not an easy standard.  Andrew Wiggins probably could get by with that, but doubtful for almost everyone else and most other teams, especially D-II and D-III.  Also, I don’t think there are regulations specifically discussing this, but I don’t know that individuals in P status would be allowed to study.

* * *

Monday, April 21, 2014

Why aren't the Mid-American Conference, Conference USA & Mountain West Conference being sued over Grants-in-Aid? Some Answers

In the last two months, several current and former college athletes have sued the NCAA, Pac-12, Big Ten, Big-12, SEC and the ACC over the value of athletic scholarships.

The first one to do so was former West Virginia running back Shawne Alston. Alston alleges that the NCAA, its member institutions, and the five major conferences are in violation of antitrust law by capping athletic scholarships (grants-in-aid) to the cost of tuition, room and board, books and fees. Clemson corner back Martin Jenkins and three other current players have raised the same basic argument in their own lawsuit.  If these players succeed, college athletes could receive more value--perhaps dramatically more value--in their scholarships.

One mystery to me and I know to several other sports attorneys is why these players and their attorneys did not also sue the Mid-American Conference, Conference USA and Mountain West Conference.  There is no obvious reason why these conferences and possibly other conferences weren't also named as defendants. 

I posed this issue to Jon King, who is one of Alston's lead attorneys. King, an attorney at Hagens Berman Sobol Shapiro, kindly answered.  There are several reasons, as his email details:
Hi Mike,

Speaking for the Alston case, a mix of reasons (which I'd imagine are the same in the other case), including these:

1) The 5 Power Conferences are among those that have disproportionate representation on the NCAA Division I Executive Committee, the NCAA Division I Board of Directors, the NCAA Division I Leadership Council, and the NCAA Division I Legislative Council. They thus have an increased ability to initiate, maintain, and change NCAA rules as compared to members of the other conferences.

2) They comprised 5 of the 6 BCS AQ conferences going back to the start of the class period in 2010.

3) Their Conference Commissioners have been the most outspoken during the class period in terms of stating publicly that they would pay the full stipend to players (meaning, the difference between the value of the athletics grant-in-aid vs. the actual cost of attendance) if permitted. These statements will assist in minimizing potential barriers to the certification of a damages class, and limit the defendants' ability to argue that individual issues on damages predominate.

4) The new NCAA legislative proposal afoot makes a clear distinctions between the 5 Power Conferences and all others in terms of potentially giving them autonomy, thus recognizing a distinction between them and others, no doubt in terms of revenue generated and other commercial factors. For example, see this article.

Finally, I note that cases often evolve, and defendants often wind up being added to a case as it proceeds (and also can be dropped if appropriate). For the reasons stated above, we thought it make the most sense to proceed as we did.

I hope this is helpful!

Best Regards,

Jon T. King | Hagens Berman Sobol Shapiro LLP | Direct: (510) 725-3034 

Saturday, April 19, 2014

Ejected for being bad at baseball?

On Friday night, Yankees reliever Cesar Cabral faced six batters in the eighth inning, hitting three of them. After the third HBP, Cabral was ejected by plate umpire Joe West. West said after the game that Cabral "probably" did not hit the third batter maliciously, but that "before somebody got hurt, something had to be done."

My question is where West got the authority to do it. Rule 8.02(d) of the Official Baseball Rules allows the umpire to "expel" a pitcher who intentionally throws at a batter. But no one believes Cabral was intentionally throwing at anyone (I happened to watch the game--Cabral was so bad that if he had thrown at the batter, he probably would have missed). Rule 9.01(c) gives umpires residual authority to "rule on any point not specifically covered in these rules." Perhaps that includes power to ensure player safety by ejecting a player whose performance threatens that safety. (In fairness to the ump's creative rule application,  Yankee manager Joe Girardi obviously did not want to go further into his bullpen and was going to stick with Cabral to finish the inning, no matter how ineffective or dangerous he was).

Is there some other basis for this ejection that I am missing?

Friday, April 18, 2014

Journal of Sports Analytics - Call for Papers

The Journal of Sports Analytics has announced a new call for papers pertaining to "sports law analytics."  The call for papers can be accessed here.  Please contact me if you have any questions.

Tuesday, April 15, 2014

On resting players for crunch time

From a guest at PrawfsBlawg.

UNH Law Welcomes Attorney Kathy Sulentic, Assistant Director of NCAA Enforcement

This should be a great event for anyone in the area who's interested in NCAA investigations and enforcement issues.  Concord New Hampshire is about 70 minutes from Boston.

Who is the National Collegiate Athletic Association (NCAA)? with Katherine Sulentic

Please join the UNH School of Law Sports and Entertainment Law Institute and the Franklin Pierce Center for Intellectual Property for a very exciting Lunch & Learn:

Who is the NCAA? with Kathy Sulentic

Lunch will be served.  Please RSVP: to ipcenter@law.unh.edu by Wednesday, April 16.
Following her presentation, Sulentic will host Office Hours to speak with interested students from 1:45-2:45 in office #197 in the IP Center.
We hope to see you there!

Katherine (Kathy) Sulentic currently serves as an assistant director of enforcement on the NCAA enforcement staff.

Her primary responsibilities include conducting joint investigations with institutions on potential Level I/II violations of NCAA legislation as well as leading the department’s academic integrity unit by providing subject matter expertise on Bylaw 14 and academic fraud issues.

Prior to joining the NCAA, Sulentic worked at both the University of Nebraska-Lincoln and the University of Colorado-Boulder in athletic academic advising.  At Nebraska, she worked with the sports of football, men’s and women’s track and field, and women’s rifle.

Sulentic also served as Dr. Tom Osborne’s teaching assistant for the courses Coaching Football and Sport and the American University.

At Colorado, she worked with the sports of football, women’s basketball, and men’s and women’s ski.  She also worked in the areas of initial and continuing eligibility.

After graduating from law school, Kathy worked as an associate in the Boston office of Greenberg Traurig, LLP.

She has a BA from the University of Northern Iowa, an MA from the University of Nebraska-Lincoln, and graduated Summa Cum Laude from Roger Williams University School of Law and was a member of their Law Review.

Monday, April 14, 2014

The latest on the Aaron Hernandez, Osca Pistorius and Ed O'Bannon cases

I have a new Legal Notebook for Sports Illustrated and I update and make predictions in the Aaron Hernandez, Oscar Pistorius and Ed O'Bannon cases. 

Here are a couple of excerpts:
1. Proving joint venture will be challenging. Prosecutors allege Wallace and Ortiz accompanied Hernandez the night Lloyd was murdered, and claim there are text messages revealing Hernandez's intent to kill Lloyd. Wallace and Ortiz being at the murder scene or even encouraging Hernandez will not be enough. Prosecutors must prove that Wallace and Ortiz shared the intent of Hernandez -- the alleged trigger man -- to kill Lloyd. In previous cases, Massachusetts courts have found evidence of "shared intent" through a joint venturer being aware the murderer was armed, making no attempt to disassociate himself the murderer or covering up the crime. But courts in the state have also found that an alleged joint venturer can lack a shared intent if he was intoxicated or high on drugs. There is a strong possibility that Hernandez, Ortiz and Wallace were all high on drugs the night of Lloyd's murder. If they were high, expect attorneys for Ortiz and Wallace to argue their clients lacked the legal capacity to share Hernandez's intent.

* * *

5. The people with the most at stake in the legal war on the NCAA? Star athletes in middle school who may be entering college at around the time all legal appeals have been heard. 

To read the rest, click here.

Sunday, April 13, 2014

The best sports deal ever

That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details and the negotiations leading to the original deal. Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).

Thursday, April 10, 2014

Breaking Down The Oscar Pistorius Trial on the Nancy Grace show

I was a guest last night on Nancy Grace's show on Headline News (HLN) to talk about the Oscar Pistorius trial, and specifically about whether it was wise for prosecutors to show an old video of Oscar Pistorius shooting a watermelon and then joking about how it was like shooting a zombie's brain.

Nancy thought it was a good idea because the video shows Pistorius to be insensitive and callous, unlike how he has seemed during his trial.

I disagreed, especially since a judge and not a jury will be deciding his fate, and a judge is less likely to be moved by inflammatory videos. To me, the video seems irrelevant as to whether Pistorius intentionally killed his girlfriend and may prove to be a distraction from the real evidence. I also think the video may be perceived as insensitive, since it was raised in the context of Pistorius shooting his girlfriend's brain.

You can decide.  Here's the video:

Wednesday, April 9, 2014

Two sides speech in sports

This whole thing is interesting and ironic for what it says about sport and speech. Orioles outfielder Adam Jones harshly criticized fans who run onto the field, suggesting first that players should be able to take a shot at kicking the fans while wearing spikes, then suggesting fines of $ 10,000 plus. What I liked about Jones' opinion were the following comments:

Cuss us out, let us have it, give us a ribbing, remind us of our last five at-bats if they've been terrible, please do, but just stay off the field because you're just causing a problem that doesn't need to be caused.

So Jones just made the best defense of the fullest scope of cheering speech.

Of course, MLB is "reviewing" Jones' comments, perhaps for some punishment. Meaning that while Jones is arguing for a broad vision of fan expression, MLB is pushing a much narrower vision of athlete expression.

Tuesday, April 8, 2014

4th Annual Sports Law CLE April 24 hosted by Cozen O'Connor

Sports attorney Steven Silton of Cozen O'Connor and his colleagues have put together an outstanding CLE for sports law rookies and veterans to be held on Thursday, April 24 at the JW Marriott Marquis Hotel in Miami.

Here are some highlights:

Thursday, April 24, 2014
8:00am - 5:30pm

General Admission: $199

NFLPA Licensed Agents: $129

Student: $99
Sport Administrators: Free


This program will be submitted for 7 CLE credits
in the jurisdiction of all attendees

This unique program represents the intersection of issues in professional and amateur sports, media and the law. Join business leaders and sports industry professionals for an informative seminar that examines and analyzes current issues affecting the sports industry today.

Confirmed Panelists:
Super-Agent Drew Rosenhaus
Miami Heat Vice President, Associate General Counsel Eve Wright
Miami Dolphins General Counsel Adam Zissman
Minnesota Vikings General Counsel and Chief Administrative Officer Kevin Warren
Vice President and General Counsel of the Minnesota Wild Steven Weinreich
Tampa Bay Lightning General Counsel Danna Haydar
NFL Agent Kelli Masters
ESPN NFL Business Analyst Andrew Brandt

Topics Include:
Locker Room Culture and Employment Law
Front Office Perspective
Stadium Construction and Financing
Women in Sports
Concussion Lawsuit

For the full agenda, click here. For info on attending, click here.

NYU Sports Law Colloquium April 15

Third Annual NYU Sports Law Colloquium
Tuesday April 15, 2014, 10:00am 
NYU School of Law, Lester Pollack Colloquium Room
245 Sullivan Street
New York, NY  

TheSports Law Committee, in association with the Intellectual Property and Entertainment Law Society at New York University School of Law, cordially invite you to a day-long event featuring distinguished panels and discussions on today’s prominent legal issues in the world of sports.

***1.5 Ethics and 3 Areas of Professional Practice CLE Credits Available***

Event Schedule: 

                  10:00 a.m.     The Ethics of the A-Rod Case (1.5 Ethics CLE Credits)
                   Wayne McDonell, Professor of Sports Management, NYU
                   Michael O’Keefe, New York Daily News
                   Eugene Orza, Former Chief Operating Officer, MLBPA
                   Anita Marks, NBC Sports Radio (Moderator)
11:30 a.m.   The Future of the NCAA
                    Marc Edelman, Associate Professor of Law, Baruch College
                    Craig Esherick, Professor of Sport Management, George Mason
                    Len DeLuca, President, Len DeLuca and Associates
                    Charles Grantham, Former Director, NBAPA
                    Donald McPherson, NCAA Football Analyst
                    Robert Boland, Academic Chair of Sport Management, NYU
12:45 p.m.   LUNCH

1:30 p.m.                The Anatomy of a Sponsorship Deal
                    John Maguire, SVP Corporate Partnerships, NY Giants
                    Joe Nahra, Legal and Business Affairs, CAA
                    Christina Song, VP of Legal and Business Affairs, MSG

3:00 p.m.   Hypocrisy in Intercollegiate Athletics and   Dishonesty in Academia
                  Michael Hausfeld, Chairman, Hausfeld, LLP

For more information contact Sports Law Committee Co-Chairs Steven Couper (spc318@nyu.edu) or Adam Dale (aid233@nyu.edu)