Tuesday, July 29, 2014

The Irony of the MLBPA's Recent Grievance Against the Houston Astros

On Thursday, news reports emerged that the Major League Baseball Players Association (MLBPA) has filed a grievance against the Houston Astros over the team's failure to sign several recent draft picks, including the first overall selection Brady Aiken (pictured).  Nick Faleris has provided a great recap of the breakdown in negotiations between Aiken and the Astros over at Baseball Prospectus, but in short Houston had allegedly reached a $6.5 million deal with Aiken, only to pull it off the table due to concerns with Aiken's elbow that were identified during his pre-contract-signing physical exam (Aiken disputes the diagnosis).  Instead, the team opted to offer Aiken the minimum amount allowed under the collective bargaining agreement, or about $3.5 million, to sign.  Even after Houston eventually raised its offer to $5 million, Aiken refused to sign for less than the original agreed upon amount, and as a result the signing deadline for draftees passed last week without the two sides reaching an agreement.

Due to the intricacies involved in the new MLB draft system, however, by failing to sign Aiken the Astros were also unable to honor the agreement they had reached in principle with fifth round selection Jacob Nix.  Basically, MLB's CBA caps the amount that teams can spend on draft picks, and conditions some of that money on the team signing its top picks.  It just so happens, however, that Nix's agent, Casey Close, also represented Aiken, raising questions about whether the Astros were attempting to manipulate the situation to force one of Close's clients (Aiken) to sign at a reduced rate so the agent's other client (Nix) could sign as well.

The fact that the MLBPA has opted to pursue a grievance over the Astros' failure to sign Aiken and Nix is somewhat ironic given that the union has never shown much interest in representing minor league baseball players.  Indeed, the MLBPA has historically focused its energy exclusively on serving the interests of major league players, sometimes at the expense of minor leaguers (including, for example, the union's agreement discussed above to cap draft pick signing bonuses in the most recent CBA).  The resulting lack of union representation for minor leaguers is a significant factor motivating the recent Senne class action lawsuit filed against MLB, which alleges that MLB teams have failed to pay their minor league players in accordance with the Fair Labor Standard Act's minimum wage and maximum hour provisions (for more on the Senne lawsuit, check out Sports Law Blog's prior coverage of the case available here and here). 

All of this makes the union's decision to pursue a grievance on behalf of Aiken and Nix somewhat surprising.  Under the terms of MLB's most recent CBA, teams are prohibited from signing recent draftees to major league contracts.  Consequently, even if they had signed with the Astros, neither Aiken nor Nix would have immediately joined the MLBPA's membership.  Instead, they would have had to wait until they were promoted to the major leagues (or assigned to a major league team's 40-man roster) in order to join the union.  Admittedly, the draft rules at issue in the Aiken/Nix grievance were agreed to as part of MLB's most recent CBA, giving the union some interest in the matter.  But the fact that the two draftees would not have immediately joined the union even if they had signed does raise questions about why the MLBPA has elected to become involved in the matter.

Monday, July 28, 2014

Donald Sterling loses

The NBA is poised to approve the sale of the Clippers to Steve Ballmer following a probate court effectively ruling for Shelly Sterling.  My take for Sports Illustrated.

Wednesday, July 23, 2014

New Chapter in Donald Sterling Saga: he sues NBA, Adam Silver and Shelly Sterling

There have been several significant developments in the Donald Sterling legal saga over the last 48 hours, including a new lawsuit and threat from Doc Rivers that he'll quit as Clippers coach if Donald Sterling sicks around.  Here is my legal analysis of those issues for Sports Illustrated.

California knows how to tax pro athletes

Robert Raiola and I, in a new piece for SI.com, look at how California tax law plays a key role in raising revenue from athletes for the state.

Saturday, July 19, 2014

Distractions and misdirections on Chris Kluwe

Two thoughts on the Vikings' report about the release of punter Chris Kluwe and anti-gay comments by the team's special teams coach. The coach, Mike Priefer, was suspended for three games (reduced to two if he attends sensitivity training); the report describes him as a good man who made a mistake and said a bad thing. The report insists that Kluwe was released because of performance and contract, not because of his gay-rights/marriage equality activism.

1) The report concludes that the Vikings were not concerned with the content of Kluwe's advocacy, but with the fact of his advocacy and the "distraction" it was creating. While it perhaps gets the team out from liability for retaliation, the notion that players are doing something wrong--something that justifies cutting them--by being politically engaged is a pretty reprehensible stance for the team to take. The NFL (and all professional sports leagues) makes a big deal of how all the charitable work players do--in fact, much of this work is required of the players. The league supposedly wants its players to be engaged. But it is beyond hypocritical and paternalistic to punish a player for having enough of an engaged mind to pick his own causes. And someone needs to excise the word "distraction" from teams' vocabulary. Most people in most walks of life can do their jobs just fine even while taking some time to think, speak, and write on political issues. We need to get past the idea that professional athletes are different.

2) The report mentions Kluwe (and others) making raunchy jokes about Jerry Sandusky; Pro Football Talk's Mike Florio (acting as shill for the Vikings and the NFL)  highlighted this in a series of tweets, repeating what he was told by anonymous league sources. Of course, none of this matters if/when Kluwe sues the Vikings, since none of it would be admissible under evidence rules. And that is for the better. While the rules of evidence are often criticized for leaving out important information and giving fact-finders less than the whole story, they also serve to remove stuff that is meant as little more than misdirection. It should be obvious that there is a world of difference between admittedly tasteless jokes targeting the wrongdoer (not at his victims) and at the school that harbored the wrongdoer, and an explicit call to kill all members of a class of people based on hatred of members of that class. But clearly it is not that obvious, as Florio (who does not seem like the smartest guy anyway) has demonstrated. So the rules help us keep our focus.

Monday, July 14, 2014

Busy Stretch on Sterling, O'Bannon, Redskins, Painkillers, Insider Trading, LeBron, Carmelo, A-Rod, Dan Marino, Johnny Manziel, Ken Feinberg . . .

Since the Donald Sterling story broke on April 26, I've written 41 columns for Sports Illustrated, SI.com, MMQB and Golf.com.  The last 10 weeks have been a busy stretch! I have a week's worth of columns from last week's Sterling hearing that I didn't get a chance to blog on.  In general, I haven't had a chance to blog, but I'm grateful that others on our blog have contributed with excellent posts.  I appreciate the great insights in these columns from Robert Raiola, Alan Milstein, Larry Coon, Daniel Wallach, Warren Zola, Mark McKenna and Eugene Egdorf.  I also received outstanding feedback by e-mail and on Twitter, and am grateful to all of the readers.

Here are the links to the 41 columns [updated Aug. 13 to commemorate the end of the Donald Sterling legal saga -- there are now 50 columns]:

  1. Ballmer officially Clippers new owner, but what's next for Sterling, NBA, SI.com (Aug. 13, 2014)
  2. Next steps in O'Bannon case: Both NCAA and O'Bannon could appeal, SI.com (Aug. 11, 2014)
  3. Tony Stewart faces possible legal consequences after fatal accident, SI.com (Aug. 10, 2014)
  4. What Ed O'Bannon's victory over the NCAA means moving forward, SI.com (Aug. 8, 2014)
  5. Still hope for Donald Sterling after judge vacates order allowing sale, SI.com (Aug. 8, 2014)
  6. Judge rules against Donald Sterling, OKs sale of Clippers to Ballmer, SI.com (July 28, 2014)
  7. Sterling family trust hearing nearing its completion, SI.com (July 23, 2014)
  8. One Sterling trial resumes, another fight just beginning in Clippers fight, SI.com (July 22 , 2014)
  9. Athletes paid $216.8 million in California income taxes in 2012, SI.com (July 21, 2014)
  10. How does Sterling trial's inability to finish on time impact Ballmer deal?, SI.com (July 10, 2014)
  11. Donald Sterling verbally attacks everyone in Day 3 of landmark trial, SI.com (July 9, 2014)
  12. Donald Sterling says NBA 'not to be trusted' during lawsuit testimony, SI.com (July 8, 2014)
  13. Donald Sterling no-shows for first day of hearings in lawsuit against wife, SI.com (July 7, 2014)
  14. Examining Donald Sterling's lawsuit and how it impacts the NBA, SI.com (July 6, 2014)
  15. LeBron’s free agency: By the numbers, SI.com (July 1, 2014) (with Robert Raiola)
  16. O'Bannon v. NCAA: With trial over, what comes next?, SI.com (June 30, 2014)
  17. NCAA makes strong counterargument to close O'Bannon trial, SI.com (June 28, 2014)
  18. O'Bannon team calls NCAA a 'cartel,' while NCAA defends business model, SI.com (June 26, 2014)
  19. The legal importance of fan interest in the O'Bannon trial, SI.com (June 25, 2014)
  20. O'Bannon v. NCAA: Do schools make or lose money on sports?, SI.com (June 23, 2014)
  21. Understanding the cancellation of the Redskins’ federal trademark, SI.com (June 18, 2014)
  22. How much Carmelo Anthony can make as an NBA free agent, SI.com (June 18, 2014) (with Robert Raiola)
  23. Sources: NBA unfazed by Sterling’s lawsuit, could countersue, SI.com (June 13, 2014)
  24. With Clippers sale off, a look at legal strategies for Sterling, NBA, SI.com (June 10, 2014)
  25. NCAA reaches settlement with Keller plaintiffs: What does it mean?, SI.com (June 9, 2014)
  26. Proving Phil Mickelson engaged in insider trading requires more than suspicion, Golf.com (June 8, 2014)
  27. Could O’Bannon v. NCAA case settle before trial begins?, SI.com (June 7, 2014)
  28. Ed O’Bannon v. the NCAA: A complete analysis before the trial, SI.com (June 5, 2014)
  29. The end of the Donald Sterling saga is a victory for the NBA, SI.com (June 4, 2014)
  30. Hall of Fame QB Dan Marino latest to sue over NFL concussions, SI.com (June 2, 2014)
  31. Sterling will argue privacy, breach of contract in lawsuit vs. NBA, SI.com (May 31, 2014)
  32. NBA scores legal victory with Sterling indemnity, SI.com (May 30, 2014)
  33. NBA’s checklist before approving sale of Clippers, SI.com (May 30, 2014)
  34. Source: NBA may fast track Sterling’s sale of Clippers, SI.com (May 29, 2014)
  35. Analyzing Donald Sterling’s response to the NBA’s lifetime ban , SI.com (May 28, 2014)
  36. Why the NBA won’t cede control of Clippers to Shelly Sterling, SI.com (May 23, 2014)
  37. The NFL’s Painkiller Problem, MMQB.com (May 22, 2014)
  38. Donald Sterling vs. the NBA: A legal primer, SI.com (May 19, 2014)
  39. Source: Donald Sterling refuses NBA sanctions, threatens to sue, SI.com (May 15, 2014)
  40. New double-murder charges devastating for Aaron Hernandez, SI.com (May 15, 2014)
  41. How the NBA can keep the Sterling family away from the Clippers, SI.com (May 15, 2014) (with Larry Coon)
  42. State taxes may compel Johnny Manziel to avoid Ohio residency, SI.com (May 13, 2014)
  43. The potential legal fallout from Donald Sterling’s CNN Interview, SI.com (May 13, 2014)
  44. New evidence released in Alex Rodriguez case, but his options are limited, SI.com (May 12, 2014)
  45. Process and Power, Sports Illustrated (May 12, 2014 issue), at 16 – 18
  46. NBA beginning to determine legal strategy in Donald Sterling case, SI.com (May 9, 2014)
  47. Donald Sterling’s next move? Delay, delay, delay, SI.com (May 7, 2014)
  48. Ken Feinberg sheds light on FCAA, how compensation could be handled, SI.com (May 7, 2014)
  49. Donald Sterling, NBA set for epic legal fight over Los Angeles Clippers, SI.com (Apr. 29, 2014)
  50. What’s next for the NBA in Donald Sterling case from a legal standpoint?, SI.com (Apr. 26, 2014) 

    Sunday, July 13, 2014

    The risk to catalyzed fans

    As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.

    This demonstrates the risk in Mike, Dan Markel, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.

    Saturday, July 12, 2014

    It wasn't the alcohol, stupid

    Reading Jimmy's posts on the Bryan Stow verdict, I was struck by how wrongheaded and offensive the Dodgers attempts to blame Stow were. Jimmy points to the principle that drunk people need safe conditions.

    But the real issue here was not that Stow was drunk; it was that he was wearing a Giants jersey and "yelling and raising his hands," which the Dodgers argued (and perhaps will continue to argue) provoked the fight. The two assailants targeted him because of his cheering, not his drunkenness. While Stow perhaps yelled louder (and perhaps more obnoxiously) because he was drunk, this is an attack that might have happened even if he was sober and cheering for his team. Alcohol was a distraction here--really an effort by the Dodgers to paint him as an irresponsible person--one that did not fool the jury.

    Taken seriously, the Dodgers argument would mean that if you cheer for the other team too loudly, you are, at least partly, responsible for any beating that comes your way. And that they are not responsible for protecting you on their property.

    Friday, July 11, 2014

    My breakdown of the verdict in the beating of Giants fan Bryan Stow outside Dodgers Stadium, and what's next.

    An interesting precedent from 1985, also involving drunken fans fighting in the Dodgers Stadium parking lot, in which a jury verdict for the plaintiffs was overturned on appeal. In that case, the Court of Appeals of California ruled that the lack of security itself wasn't enough to prove negligence by the team; the plaintiffs had to show that the extra police would have prevented the fight.

    As the court wrote in Noble v. Los Angeles Dodgers:

     "It would be intolerable and grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were 'inadequate,' especially in light of the fact that the decision would always be rendered in a case where the security had in fact proved to be inadequate."

    (h/t to Widener Law professor Christopher Robinette at TortsProf Blog for pointing me in the right direction.)

    The Stow jury also rejected claims that he was responsible for his own beating because he was drunk.  (His blood-alcohol content was .18 percent). As the court wrote in Robinson v. Pioche -- way back in the Gold Rush era -- when a drunk man fell in a hole in the sidewalk: "A drunken man is as much entitled to a safe street as a sober one, and much more in need of it."

    Wednesday, July 9, 2014

    Now for a meritorious lawsuit

    The Dodgers have been found liable in the beating of a Giants fan Bryan Stow in the parking lot on Opening Day 2011. The jury found the Dodgers 25 % liable and awarded just under $ 18 million. The two men who assaulted Stow were each found 37.5 % liable. The news stories do not say whether the two were parties to the case or whether there is joint-and-several liability allowing Stow to recover the full amount from the Dodgers. Then-Dodgers owner Frank McCourt was found not personally liable.

    Update: Deadspin is reporting that Stow will recover $ 4.5 million from the Dodgers, which seems to suggest several liability only. A torts professor tells me: 1) California only has several liability for non-economic damages and 2) Some states (not sure about California) only have several liability for intentional torts. In this case, it is not clear from reports how much of the $ 18 million was economic and 2) The Dodgers were found liable for negligence, while the two assailants would have been on the hook for assault/battery. So where does that leave us? Anyone with knowledge of California tort law, please advise.

    Further Update: Christopher Robinette  (Widener and the TortsProf Blog) emails this story from CNN, which includes comments from Stow's lawyer about the judgment. Of the $ 18 million, $14 is for economic damages (past and future medical expenses) and $ 4 million is for non-economic damages (pain and suffering); Stow can collect $ 15 million from the Dodgers--all $ 14 million for economic damages and $ 1 million in non-economic, reflecting the Dodgers' 25 % liability.  According to Christopher, this is consistent with common tort rules in many states, under which there is joint-and-several liability for economic damages, but several liability for non-economic damages. The Dodgers can bring contribution actions against the two assailants for their share of the $ 14 million, although that is highly unlikely, since these guys are basically judgment-proof.

    The dumbest lawsuit in history

    This civil action by the Yankees fan who fell asleep at a game, and got made fun of on-air and on the internet, takes the prize. As I told one reader who was surprised that I had not written about it yet, I was not sure how to stretch "this is one of the dumbest lawsuits ever and will be dismissed very quickly" into a full blog post. I imagine this one might be bad enough to justify sanctions. The case does bring back memories of Neff v. Time, Inc., a 1976 federal district court decision in a lawsuit brought by a fan at a Steelers game who was pictured in Sports Illustrated with his fly down.