Thursday, August 28, 2014

Does Josh Gordon have a legal case against the NFL?

In a new column for Sports Illustrated, I'm pessimistic that Josh Gordon -- suspended for the 2014 season -- would be able to take on and beat the NFL in court.

Donald Sterling fails to file timely appeal to California Supreme Court

Dan Wallach noticed and investigated that Donald Sterling failed to file an appeal to the California Supreme Court by Monday's deadline.  I write about the impact of Sterling's inaction in a new piece for Sports Illustrated.

Saturday, August 23, 2014

What we call our teams

Various broadcasters and sports media outlets supposedly are not going to use the nickname of the Washington NFL team this season, presumably referring to them as "Washington" or "the Washington team."

In the mid-'90s, Baltimore got a CFL team (when the NFL inexplicably passed a great football city over for an expansion team), which tried to call itself the "Baltimore CFL Colts." The Indianapolis Colts sued for trademark infringement and won a preliminary injunction (the case had a significant personal jurisdiction point). While the litigation was pending during the 1994 season, the team simply called itself the "Baltimore Football Club." During pre-game introductions, however, the announcer would say something like "And now, your Baltimore . . ." and the crowd would shout "Colts" over the rest of the announcement.

If the trend of not using the nickname becomes widespread enough, I wonder if some of the more hardcore Washington fans will take it upon themselves to shout the nickname themselves.

Wednesday, August 20, 2014

Peter Carfagna to teach MOOC course on Representing the Professional Athlete

Peter Carfagna ’79Our good friend, Harvard Law School sports law professor Peter Carfagna, has let us know that Case Western Reserve University School of Law, via the Coursera platform, will be offering Peter's "Representing the Professional Athlete Course" as a Massive Open Online Course.  The course will be going live on Sept. 16 and you can see the course's details on Coursera.  This is an outstanding opportunity to learn sports law from one of the most successful sports lawyers in U.S. history and an extremely talented teacher as well.

Peter's course is a 6 Module MOOC course and will cover the 4 stages of a professional athlete's career as explained in his outstanding West Academic book titled Representing the Professional Athlete (2nd Ed.)

For a great Q/A with Peter, see this Harvard Law Today story.

Daniel Wallach on settlement reached in Steve Moore, Todd Bertuzzi case

Daniel L. Wallach It has taken over a decade, but there is a settlement over litigation stemming from the vicious hit by Todd Bertuzi against Steve Moore.  The hit ended Moore's career and led to a $68 million lawsuit.

Sports attorney Daniel Wallach of Becker & Poliakoff breaks down the settlement on SportsNet Toronto and what it means for hockey.  The interview with Brady and Walker begins at around the 15:00 mark, and is an outstanding listen.

Tuesday, August 19, 2014

Turning Pro in Hockey

For the sports of basketball and football, the draft entry rules and the NCAA eligibility rules are simple--once someone submits their name to the draft, and they don't pull out prior to the draft, they become ineligible to play in college regardless of whether they are selected or not. Baseball allows a player to be drafted, and so long as they don't sign with the team, they may attend college but the drafting team loses the player's rights.

However, for the sport of hockey, the way in which the NHL draft eligibility rules and the NCAA rules intersect are quite unique. For a variety of reasons, the NHL draft rules permit players to be drafted once they turn 19 (or 18 under certain circumstances). However, the NCAA has determined that so long as the player doesn't sign a professional contract, or sign with an agent, he may retain his collegiate eligibility. The player even may spend time at the team's "development camp" during the summer, competing against pro players. In fact, during the summer of 2014 over 300 players with college eligibility competed in prospect "Development Camps."

These rules produce nuances distinct to hockey:
  1. The NCAA allows hockey (and baseball) players to have an advisor, but not an agent, to provide advice to the player and his family as they navigate the often confusing process of decisions that arise. [Don't get me started on the distinction or purpose of this NCAA rule.] The decisions faced include the debate of playing in CHL Major Junior Hockey or going to college. There's a great article that discusses the differences here.
  2. If a drafted player attends college, the NHL team owns their rights until August 15th following their senior year. Thus, depending upon the skill of the player and the team's needs, after each college season there is a discussion about the player joining the NHL team or returning for another year of college.
  3. As a result, there are literally hundreds of NHL drafted players competing in NCAA hockey--with many teams having a significant percentage of their roster already drafted. Here's a full list of NHL draft picks who played college hockey during the 2013-14 season.
Why am I writing this now, during the dog days of August? Because two events at Boston College highlighted this "twilight zone" recently. First, Kevin Hayes navigated this process masterfully. A first round draft pick of the Chicago Blackhawks during the 2010 entry draft, Kevin followed his older brother Jimmy and decided to embark on a college career. 

While his brother Jimmy, a second round pick by the Toronto Maple Leafs, left college after his junior year (and a national championship), despite interest from the Blackhawks, Kevin passed on signing an NHL deal at the end of each college season. After playing four years at Boston College (and winning a championship himself), he became a free agent on August 15th--free to shop himself to the highest bidder.

Why was this masterful? 1) Kevin earned a college degree; 2) he won two national championships and improved himself by competing at the highest level (finishing third in the Hobey Baker Award this past season); and 3) has the luxury his contemporaries do not--he's an NHL free agent, in demand, at the age of 22.

This other side of the question is the saga of Sonny Milano. Milano, who committed to Boston College, was the 16th selection in the 2014 NHL draft by the Columbus Blue Jackets. The plan was to play at Boston College for a few years, honing his skills while the Blue Jackets still owned his rights. He dominated in international competition all summer, posted a video that went viral on YouTube highlighting his stick skills, and announced last week that he would forgo college and head straight to the Ontario Hockey League to begin his pro career.

Monday, August 18, 2014

To the man who taught me the infield fly rule

My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. I just ended shloshim, the 30-day period of mourning in the Jewish faith, so it seemed a good time to post this.

My dad was a huge baseball fan. He somehow became a Yankees fan in 1930s/1940s Brooklyn, an interesting choice that probably subjected him to some abuse (although his consolation was that the Yankees always won and the Dodgers always lost). He passed that love of the game down to me (even if I traded the Yankees for the Cubs as an adult--don't ask). I still cry at the end of Field of Dreams ("Dad, you wanna have a catch?"), because, who doesn't? More importantly, though he certainly could not have imagined it at the time, he set me down the path of my two-plus-year (and counting) scholarly obsession with the Infield Fly Rule.

Crazy as it sounds, one of my vivid snapshot memories of childhood is that moment when I first learned about this crazy rule. I was about eight years old and my dad and I were watching a Yankee game on TV. One of the announcers said "Infield Fly Rule is in effect" (standard baseball broadcaster lingo on IFR plays, for reasons I have not yet been able to uncover); I asked what that meant and he explained. And he obviously did it in very clear terms, because I immediately understood both the rule and its logic and his explanation stuck with me going forward. If, as I have argued, to understand the infield fly rule is to understand baseball, then my dad understood baseball. And he made sure I did, as well.

One of the last times I visited him in New Jersey in the spring, I brought along two of my infield fly articles. He flipped through them while we were sitting together talking and he read them after I left. And I am quite certain it is the only thing I have written as a prawf that he read or understood. So that alone made this whole project worthwhile.

Alav ha'sholom.

Friday, August 15, 2014

O'Bannon, College Reform & Title IX

As the dust begins to settle on Judge Claudia Wilken's ruling in the O'Bannon case, many are beginning the process of interpreting the ruling from a variety of perspectives. One of the chief questions relative to paying college athletes, and the brave new world in which the NCAA has been brought, is the role that Title IX will have on its implementation.

One of Sports Law Blog's favorite antitrust economists, Andy Schwarz a partner with OSKR LLC in California, recently penned an insightful article on Deadspin titled "Don't Let Anyone Tell You The O'Bannon Ruling Conflicts with Title IX." Schwarz argues that the payments being proposed by Wilken should be construed as "part-and-parcel of the financial aid offer made to male athletes." As such, they'd fall under the umbrella of the "substantial proportionality" test as required by Title IX. The article is masterful and should be read by all to fully understand this issue.

Our own Michael McCann analyzed the O'Bannon decision for Sports Illustrated and tackled the issue of Title IX, noting that Title IX plaintiff attorneys may have a different perspective than the one Schwarz argues.  Another wonderful piece was recently posted on espnW by columnist Jane McManus titled "NCAA Reforms: Good for Female Athletes?" McManus, who also quotes Schwarz, asks the poignant question "so what is the future of women's sports under this new structure?" Finally, Kristi Dosh wrote a piece which poses more questions than answers, in a column titled "Are O'Bannon Ruling and Title IX at Odds?"

What's clear is that there will be many a law review article penned debating this topic. Title IX recently celebrated its 40th Anniversary and its impact continues to play a major role in higher education.

Wednesday, August 13, 2014

Weighing in on the potential for criminal charges against Tony Stewart. Thanks to Corey Yung of Kansas University School of Law, whom I first spotted through the link to the Concurring Opinion blog, for helping out with this story.

Based on the reaction to my story on Twitter, this case is as polarizing as they come. Stewart has a reputation as a hothead, leading many fans to conclude that he was -- at the very least -- trying to teach Ward a lesson by swerving/accelerating/spinning his wheels in his general direction. Many others feel that because Ward was out in the middle of traffic, Stewart should be in the clear.

It's not known yet what Stewart told investigators. If he didn't see Ward, it's hard to argue for any criminal charges (here's the view from inside a sprint car). The Ontario County sheriff says the investigation will continue, perhaps for weeks. Interested in anyone's thoughts on whether this is a good or bad sign for Stewart.

Tuesday, August 12, 2014

The never-ending Donald Sterling saga ends . . or not

Steve Ballmer is the new owner of the Los Angeles Clippers, according to the NBA.  Donald Sterling has a different interpretation, as I write in a new piece for Sports Illustrated.

Monday, August 11, 2014

More on the Legal Fallout of Tony Stewart crash and O'Bannon v. NCAA

I was a guest on ESPN's Outside the Lines tonight to talk about the legal fallout of the Tony Stewart crash.  Here's a video:

In addition, I have a new Sports Illustrated column where I predict that Ed O'Bannon will appeal his victory in O'Bannon v. NCAA.

Sunday, August 10, 2014

Potential Criminal, Civil and Contract Law Fallout for Tony Stewart

I have a new column on on the assorted legal ramifications of the incident last night involving Tony Stewart and the death of Kevin Ward, Jr.  This includes criminal charges, a wrongful death lawsuit and termination of endorsement contracts under morals clauses.  Hope you can check it out.

Yung on Tony Stewart and criminal culpability

At CoOp, Corey Yung (Kansas) has a good analysis Tony Stewart's possible criminal culpability in the on-track death of  Kevin Ward, Jr.

Saturday, August 9, 2014

Loss of Value Insurance: 3 Questions

Following the news that Florida State paid for the premium for Jameis Winston's loss of value insurance policy, and the wonderful law review article titled "Insurance Coverage for Elite Student-Athletes" by Jill Weiber Lens and Josh Lens (Baylor University) a few questions to ponder:
  1. Will the NCAA restriction on allowing college athletes to borrow off their future earnings to cover the premiums for loss of value policies change in light of the O'Bannon case and recent NCAA autonomy vote?
  2. If schools are allowed to cover the premiums of loss of value insurance policies via the Student Assistance Fund (SAF), doesn't that lead to potential problems down the road? For example, conferences manage their own SAFs and authorize expenditures by its members. Thus, the ACC granted Florida State permission to help Winston. The problem is that the ACC's SAF is a limited fund--let's say $350,000 and these premiums are approximately $60,000. How many ACC athletes should get protection.....and who decides?
  3. Has anyone mentioned Florida State's payment of Winston's premium to the IRS? Doesn't a $60,000 payment trigger taxable income?

O'Bannon & NCAA Reform

Yesterday, Michael McCann and I, along with Robert Raiola, Alan Milstein and Daniel Wallach, led a roundtable discussion for the Boston Bar Association on the Donald Sterling controversy. The panel was well attended and, by all accounts, quite successful. Afterwards, most of us then headed out to a late lunch in Boston to catch up on life.

As often happens with the conversations of sports lawyers, our attention turned to the O'Bannon case. Always prescient, McCann stated that he expected Judge Wilken to issue her ruling at approximately 6:45 pm est  just before the weekend. He hoped it wouldn't happen, lamenting the likely long night of writing and analysis he'd be required to provide Sports Illustrated (alas, the rigors of being THE sports law expert for that media outlet.)

We now know McCann was correct--in a ruling siding, primarily for O'Bannon, Judge Wilken ruled that the NCAA's could no longer use "amateurism" as the single defense to all restrictions placed on college athletes. You can read McCann's insight in a piece titled "What Ed O'Bannon's Victory over the NCAA Means Going Forwardhere.

Another article worth your time is from noted columnist Joe Nocera of the New York Times who posted this piece titled "This is Reform? The NCAA's Feeble Reform Impulse." And, to be clear, any writing that discusses Andy Schwarz's concept of Team Reform v Team Market analysis is a good read. For Schwarz's full article titled "How Not to Reform the NCAA" go here.

Friday, August 8, 2014

Article of interest: Lens on insurance for college athletes

Jill Wieber Lens (Baylor Law) and Josh Lens (who works in athletics compliance at Baylor) have posted Insurance Cover for Elite Student-Athletes to SSRN. Here is the abstract:

College athletics is commonly referred to as “big business” for universities. But it’s also big business for elite student-athletes, meaning those who are talented enough to later become professional athletes. What happens if they get injured while still in college? An injury could cost an elite student-athlete millions of dollars, in the form of lost expected future income from playing professional sports. More and more elite student-athletes are looking to insurance to help with this risk.

This Article explores the types of insurance available for elite-student athletes, mainly total disability and loss-of-value insurance. The Article is the first to focus on student-athletes’ biggest hurdle in obtaining the insurance—the cost. It argues that change is needed because current limitations on elite student-athletes provide easier access to total disability insurance than to loss-of-value insurance. The Article also cautions that even though insurance is a solution to this unavoidable problem for elite student-athletes, it is not foolproof. Insurance is only reimburses part of the lost future income. That partial benefit may also possibly be inadequate because it is based on draft projections, which will not always be accurate.

Wednesday, August 6, 2014

Disability Insurance: College Edition

In 2011, on this blog, I posed the question whether a lack of disability insurance was driving college football players to the NFL early--link here. For decades now, the NCAA has permitted students to borrow off future earnings to cover the premiums on policies protecting themselves from permanent disability. It's known as the NCAA's Exceptional Student Disability Insurance (ESDI) program.

Where the NCAA has traditionally restricted the ability of college athletes to procure true protection is via "loss of value" insurance policies. For example, true "loss of value" coverage is offered by insurance carriers whereby a player projected to be a top ten pick suffers a debilitating, but not permanent injury. The player is able to continue playing at a slightly lower level than before the injury but still gets drafted in the fifth round. The player would collect on the sizable gap in compensation between their anticipated early first round and actual fifth round salaries.

Loss of value coverage was deemed permissible by the NCAA in 2010. Unfortunately, the NCAA deemed students who borrowed off future earnings to cover these premiums to be receiving impermissible extra benefits under their rules--thereby forcing students (and their families) to pay these expensive premiums for the policies out-of-pocket.

Good news, while the NCAA didn't come to their senses and change the rules, individual colleges found a loophole. Florida State quarterback Jameis Winston, the 2014 Heisman Trophy winner is predicted to be a top-10 pick in the NFL's 2015 draft. Using money from the school's Student Assistance Fund, Florida State recently paid the approximate $60,000 premium on Winston's loss of value policy to provide $10 million in disability and loss of value protection.

According to the NCAA, the Student Assistance Fund "shall be used to assist student-athletes in meeting financial needs that arise in conjunction with participation in intercollegiate athletics, enrollment in an academic curriculum or that recognize academic achievement." Responsibility for the oversight and administration of these funds occur at the conference level.

Thus, Florida State, with the ACC's blessing, recognizes the responsibility it has to protect the future earnings of its students. Well done Stan Wilcox, athletic director at Florida State!

For media coverage of this policy you can check out ESPN and SB Nation.

Monday, August 4, 2014

An Empirical Analysis of the Infield Fly Rule

The published version is in the Journal of Legal Metrics. The paper discusses the results of a four-year study of every infield fly call (and should-have-been call) from 2010-2013. I am going to repeat the study for the 2014 and 2015 seasons and I am hoping to turn the entire infield fly project into a book. Comments and suggestions are always welcome.

Friday, August 1, 2014

Announcement: New online sports law course

Nationally recognized sports lawyer Glenn Wong will launch the new Mark H. McCormack Online Graduate Sport Management Certificate program this coming Fall semester. Professor Wong’s 3-credit “Sport Law” course will be the first in a 15-credit certificate program that enables working professionals to access the highly regarded McCormack Sport Management curriculum and faculty in a convenient, 100% online format.

In addition to authoring one of the leading Sport Law textbooks, Wong has previously served as an MLB Salary Arbitrator and as Interim Athletic Director at UMass. Students can take courses without being in the certificate program if they would like them for professional development.  Students interested in the certificate can take up to 2 courses towards the certificate before applying to the full program.

To enroll in Prof. Wong's Sports and the Law course click here.

For more information on the McCormack Sports Management Graduate Certificate program at UMass go here.

[Editor's Note: Prof. Wong is a longtime mentor and friend. Anyone interested in the field of "sports law" would benefit tremendously from his insight and experience. Additionally, any potential access to his colleagues including, but not limited to, Department Head & Prof. Lisa P. Masteralexis, should also be a huge draw for potential students.]