A-Rod sues MLB and others

Complaint, filed in state court in New York, is here. It includes claims for Tortious Interference with Prospective Business Relationships (because of the effects on his endorsement opportunities) and Tortious Interference with Existing Contracts (because of the effects on his contract with the Yankees), all based on MLB's investigation cum vendetta against him.

I doubt this goes anywhere. Tortious interference is incredibly difficult to prove, particularly in requiring highly unlawful or tortious misconduct; baseball's actions, while skirting some ethical lines, does not seem to reach that level. There also is a good chance the claims are precluded by the CBA and federal labor law, since they functionally seeks to correct and overturn punishment imposed on him by baseball pursuant to its institutional arrangements, even when disguised as claims for tort damages (see Jonathan Vilma's defamation suit against the NFL). The irony is that it was a claim for tortious interference that MLB brought against Biogenesis, in an effort to obtain documents in discovery, which started all of this. The Rodriguez complaint labels a sham and identifies that as one of the tortious acts.

Update: A-Rod is not done. He filed a separate action for medical malpractice against the Yankees' team physician New York Presbyterian/Columbia University Medical Center, arising from the failure to diagnose his torn labrum last October.

Welcome Andrew Stauber

Honored that Andrew Stauber, an attorney at Wilmer Cutler Pickering Hale and Dorr in Boston and a former sports law student of mine at Boston College Law School, has contributed an outstanding post on the role of Title IX in the private funding of Navy and Air Force football teams during the government shutdown.

Title IX requires equal access . . . even during the federal government shutdown

The government shutdown is having a far reaching impact across the country, and unfortunately, not even sports fans are not immune from its effects.  Due to the shutdown, the Department of Defense announced the suspension all intercollegiate athletic competitions involving the service academies, including Army, Navy, and Air Force.  Absent a shutdown ending miracle, speculation abounded yesterday that the Air Force-Navy and Army-Boston College football game would be canceled.  There is good news, however, for the fans of those football teams: the games will go on, per ESPN's Brett McMurphy.  McMurphy reported that "nongovernment funding" would cover the costs of these games, allowing the Falcons and the Midshipmen, the Black Knights and the Eagles to battle it out on the football field Saturday.

But what about the other sports teams at the academies? And specifically, what about the women's teams at these schools? Yesterday, both Army and Navy canceled women's soccer games against Colgate and at American, respectively.  This is certainly unfortunate for those teams, as well as for the other non-football men's teams that have had events or games canceled. 

More than just being unfortunate, another question crossed my mind: does this football-only preservation violate Title IX of the Education Amendments of 1972?  Title IX states, in part, that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."  When it comes to sports (and other extra-curriculars), Title IX requires that men and women have equal opportunity to participate.  The Department of Education evaluates schools' athletic programs to determine whether there is equality for men and women, and specifically considers the "scheduling of games and practice time" in this evaluation.  Just because a school spends more money on a men's team than a women's team does not necessarily mean that it violates Title IX, but the law’s regulations state that the Assistant Secretary for the Civil Rights Department "may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex." 

Accordingly, despite the extenuating circumstances created by the shutdown, and through no fault of any of the athletes, there's a possibility that the generous support for football programs could create complications for the academies under Title IX.  This concept is not altogether new in college athletics - for years legal scholars have warned that a pay-for-play system that exclusively targets football and men's basketball players would not be compatible with a school's Title IX obligations. 

All schools, including the academies, are required to have a Title IX compliance officer.  I imagine each of the officers has considered this issue in much greater depth than I have, and perhaps they have decided that there is no or minimal risk under Title IX.  By no means am I suggesting that academies should cancel their Saturday football games.  I think it's great that the academies and Boston College (and perhaps some generous donors) have found a way to make these games happen.  For many reasons, most of which are more important than sports, I hope the government shutdown ends soon.  In that case, all academies' sports teams can continue with their regularly scheduled matches.  Alternatively, hopefully the non-revenue sports will find a way, or the money, to keep their schedule moving forward.  Absent those outcomes, all schools, including the service academies, need to remember that Title IX remains in effect even if the federal government, including the Office of the Assistant Secretary for the Civil Rights Department, is shut down.

New Roadmap For Challenging NCAA 'No Pay' Rules and NFL/NBA Age Requirements

It is with great pleasure to announce the publication of a new, short law review article entitled "How Young American Athletes Can Best Challenge a Bureaucracy that Prevents Them from Earning a Living."   This new law review article provides a concise summary of how young American athletes can best challenge the NCAA 'no-pay' rules and the NFL/NBA age requirements.  This article also recommends favorable circuits for challenging each set of rules.

For readers who are interested in a far longer antitrust analysis of the NCAA 'no pay' rules, a current draft of my treatise of amateurism and antitrust law is available for download here.  That treatise will be published in the Fall 2013 edition of Case Western Reserve University Law Review.

The EA Settlement and Eligibility

Last March, in an Open Letter to College Athletes, I opined that as college athletes’ names and likenesses become increasingly more valuable for use in commercial products, sellers of commercial products and services may become more willing to use and profit from the identities without permission in exchange for the cost to settle the athlete’s publicity rights lawsuit.  This results in a pseudo-licensing fee; in other words, the settlement operates as an ex post licensing transaction that was not negotiated and paid ex ante.   The issue then becomes whether any legitimate purpose is served by burdening athletes with such unnecessary, time-consuming, and costly litigation.  Why should athletes not be permitted under NCAA rules to license the use of their names and likenesses in commercial products and receive the substantive equivalent payment that they otherwise would receive in litigation suing the seller for violating the athlete’s right of publicity?

As far as eligibility is concerned, I do not know how the NCAA could legally sanction college athletes for collecting damages in a court of law through the enforcement of their own property interests against third parties who commercially exploit them without the athlete’s permission (i.e. without a license).  As third-party beneficiaries of the NCAA bylaws, college athletes would have standing to challenge such an eligibility decision on the grounds of arbitrary and capricious enforcement.  The first question would be, how is the NCAA's endorsement rule rationally related to the preservation of amateurism?  Given how commercialized the big business of college sports has become and the increasing exploitation of college athletes, I am not convinced that if the NCAA faced a Jeremy Bloom-like challenge to its endorsement rule today that a Colorado state court or a court in a different jurisdiction would have much sympathy for the NCAA and its assertion that the endorsement rule prevents college athletes in big-time college sports from becoming "billboards for commercialism."  The recent rulings of the Third and Ninth Circuits not only suggest a much more skeptical view of amateurism principles that would allow commercial entities to profit off the backs of the unpaid labor that makes those profits possible but also signify a movement towards courts' recognition of college athletes receiving compensation for the use of their identities in commercial products and services.  Secondly, the discipline or suspension of a college athlete for exercising his property rights in a court of law would likely be viewed as arbitrary and capricious enforcement and a violation of public policy.

Manziel’s Precedent: can current NCAA players collect damages from the EA Sports settlement without risking eligibility?

Last Thursday, EA Sports and College Licensing Company reached a preliminary settlement in the "Ed O’Bannon" class action lawsuit over the use of college athletes' names, images, and likenesses.  The terms of the settlement have not been disclosed, but reports suggest that the figure could be upwards of $50 million.  Not surprisingly, EA Sports announced that it will no longer produce its popular “NCAA Football” franchise beginning in 2014.  If the settlement is approved, more than 100,000 former and current student-athletes may be eligible for varying amounts of compensation depending on the specifics of each class member’s claim, including the prevalence of the individual in the game.  

It is well known that NCAA rules prohibit student-athletes from profiting off their name while in school and violators of this rule risk the loss of NCAA eligibility (for student-athletes) and potential sanctions (for member institutions), but now, some current student-athletes are in a position to receive a damages award stemming from the commercial use of their image, even though they are still enrolled in school.  The NCAA has thus far declined to comment on whether current student-athletes will be entitled to collect damages without risking their eligibility until after the terms of the settlement are revealed.  However, last year, Texas A&M quarterback Johnny Manziel likely set a precedent that will allow these current NCAA student-athletes to recover damages without jeopardizing their eligibility. 

In the Fall of 2012 after a series of breakout performances, Manziel trademarked his nickname “Johnny Football.”  Later that same season, a vendor began selling t-shirts with the phrase “Keep Calm and Johnny Football.”  Manziel’s company, JMAN2 Enterprises LLC, filed a suit for damages as well as an injunction calling for the vendor to stop producing the t-shirts.  The suit posed the question of whether a current NCAA player could be entitled to collect legal damages for the misappropriation of likeness and retain eligibility.  The NCAA ruled that Manziel would be entitled to retain his eligibility and recover damages provided the trademark violation was not an intentional violation aimed at funneling money to the player.  While the O'Bannon/EA Sports case is not a trademark case, the NCAA test established in the Manziel ruling should apply because both cases center on the misappropriation of a student athlete’s proprietary interest.  Whereas Manziel can be awarded damages for the misappropriation of his intellectual property, current students would be entitled to compensation for the misappropriation of their names, images, and likeness.  The NCAA has refused to comment on the ability of current student-athletes to receive settlement money, but the precedent of the Manziel ruling will make it difficult for the Association to deny student-athletes’ recovery.  As a result, current NCAA student-athletes may be able to receive compensation from the O'Bannon/EA Sports settlement without risking their eligibility, even though they would not have otherwise been able to do so under NCAA Bylaws. 

Lewis & Clark: Success & Failure in Professional Sports

This Friday, Lewis & Clark Law School will host a forum that will explore a variety of issues at the intersection of sports and business.  Through four distinct panel sessions, panelists will discuss: 1) managing and operating a professional sports team; 2) the reasons why sports team file for bankruptcy; 3) collective bargaining between leagues and players; and 4) the financial difficulties professional athletes face after retirement.  The forum offers attendees the ability to gain a unique perspective on a number of complex sports law issues from those with unparalleled first-hand knowledge and experience.

Several of your favorite Sports Law Bloggers will be presenting including:

Marc Edelman

Gabe Feldman

Nathaniel Grow

Warren Zola

To see the topics, panels, and copy of the brochure, go here.