The other side of corporate speech

There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.

But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?

This gets at  what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.

Update: Gov. Jan Brewer vetoed the bill.

Raymond Felton: Gun Charges less than expected

I have a new Sports Illustrated piece tonight on Raymond Felton - good news for him.

Update: here's a video I did for NBA TV with Ernie Johnson, Jr.:

Legal Analysis of Raymond Felton's Gun Charges & His NBA Future

Earlier this morning, New York Knicks point guard Raymond Felton was arrested for illegal possession of guns under New York Law.  In an article for Sports Illustrated, I break down the charges and whether the NBA will suspend him and whether the Knicks will try to void his contract. 

Here are a couple of excerpts:

New commissioner Adam Silver will face his first major disciplinary decision with Felton. Like Stern, Silver is an attorney and he will likely scrutinize the charges and available evidence before making a decision. Silver will also rely on the counsel of Rick Buchanan, the league's general counsel and executive vice president. Silver and Buchanan undoubtedly know that the league's image is tarnished with fans, media and lawmakers when players are connected to guns. On the other hand, they do not want to punish a player who may ultimately be cleared of any wrongdoing. This is a crucial point for Felton as he considers his legal options: if he pleads guilty to any crime, the NBA would be clearly justified in suspending him. 

* * *

The Knicks could try to terminate Felton's contract under Clause 16 of the NBA's Uniform Player Contract. In theory, this clause allows NBA teams to void a contract if a player, "fails, refuses, or neglects to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship..." The Knicks would have to first place Felton on waivers. Assuming he clears waivers -- a safe bet -- the Knicks would then notify Felton that his contract has been voided. To be sure, the Knicks' legal argument for terminating Felton's contract would be strengthened if Felton is convicted or if he pleads guilty.

To read the rest, click here.

Thoughts on MLB's home plate collision rule

Major League Baseball today announced an experimental rule banning, or at least limiting, home-plate collisions. The rule change is designed to protect players, as collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.

New Rule 7.13 provides:

A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.

An interpretive comment adds:

The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.

Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.

The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.


The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the catcher blocks the plate while holding the ball or trying to field a throw and the runner runs directly into him in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.


The solution may come in the interpretive comments. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path. It incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, depending on how the umpire views the play (whether the runner lowered his shoulder or raiseed his arms, etc.).

The rule seems unnecessarily complicated, given the player-safety goals involved and the fact that they simply could have modeled the rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed as a first step to get players used to this new way of playing.

The NCAA: Restricting Access to Career Advice

As many of you know, I've been arguing for years that colleges need to provide greater support to those college athletes making the transition to the pros. [Law review article here, Huffington Post article here.] Recently, the Philadelphia Phillies and the NCAA reminded us of the lunacy of the rule prohibiting college athletes from having an agent.

1. Fact: MLB drafts college juniors and the player has the ability to either a) sign with the team; or b) return to college for their senior year.
2. Fact: The NCAA allows baseball (and men's ice hockey) players to retain advisors but NOT agents. Accordingly, the NCAA permits the advisor to speak with the player and his family directly, but under no circumstances may the advisor have direct contact with the team (MLB or NHL) that owns the player's rights. 
3. Fact: The Philadelphia Phillies drafted Oregon State's Ben Wetzler, a pitcher, in the 5th round of the 2013 MLB entry draft. The Phillies had the right to negotiate with Wetzler over the summer, to see if he'd forgo his senior year and sign with their team.  Wetzler declined the Phillies offer and returned to Oregon State.
4. Fact: The Phillies, after being spurned by Wetzler, turned him into the NCAA for having his advisor speak directly with them.  The NCAA then imposed an eleven game ban on Wetzler--forcing him to miss 20% of his senior season.

I won't write a 10,000 word tome on how the Phillies' actions are deplorable and the NCAA rule is ludicrous.  [Although, let's be crystal clear, THEY ARE.]  I'll just point you to a few articles and, hopefully, allow for others to make my arguments:

• My colleague here at the Sports Law Blog, Rich Karcher submitted a great post over the weekend when wrote "Another 'No Agent' Rule Violation Finding on Questionable Evidence."
• My friend Darren Heitner, creator of the Sport Agent Blog, wrote a compelling piece in Forbes on this topic titled "Why the Phillies & NCAA Deserve Your Scorn." And yes, he does quote Sports Law Blog contributor Marc Edelman along with yours truly.
   
• Finally, the Bylaw Blog, written by John Infante, weighed in with a piece titled "Report: Phillies Turn in OSU's Wetzler to NCAA."

Rather than just whining, I'll submit an easy recommendation--allow college athletes the right to have agents. Under what scenario does the NCAA feel that restricting access to competent career advice for college students is the right solution?  And if college athletes are students and not employees, (hmm, where have I heard that argument) shouldn't they be treated as such and allowed counsel when making life altering decisions?

Another "No Agent" Rule Violation Finding Based on Questionable Evidence

Aaron Fitt at Baseball America reports today that Oregon State senior pitcher Ben Wetzler was just suspended for 11 games by the NCAA for allegedly violating its "no agent" rule.  Numerous scholars have opined on the rule's irrationality, particularly in its application to amateur baseball players which I wrote about nine years ago.  The rule was also found, in Oliver v. NCAA, to be arbitrary and capricious because it bears no rational relation to preserving "amateurism" as well as a violation of public policy because its breadth inappropriately interferes with a lawyer's representation of his/her client.

But a separate area of concern raised in Wetzler's situation, which unfortunately applies to any NCAA athlete suspected of violating NCAA rules, has to do with the impartiality and neutrality of the exclusive dispute resolution process utilized by the NCAA and its member institutions to resolve eligibility disputes, coined as the "Student-Athlete Reinstatement Process."  It appears from Fitt's report that the primary evidence for finding a violation by Wetzler is that the Phillies, after failing to sign Wetzler after drafting him in the fifth round last summer, said something to the NCAA.  The NCAA stated in its press release:  “According to the facts of the case, which were agreed upon by the school and the NCAA, Wetzler sought help from an agent who attended meetings where Wetzler negotiated contract terms with the team.”  The italicized portion says it all.  In many respects Wetzler's case reminds me of Paxton v. University of Kentucky, whereby the NCAA suspected Paxton had violated the rule based upon a journalist's blog post suggesting that Paxton's lawyer may have had communications with the MLB club that drafted him.

I recently co-authored an article with Professor Steve Ross (Penn State) and S. Baker Kensinger, Esq. (Goldberg Katzman) that addresses the impartiality and neutrality concerns associated with the NCAA's rules and process for handling eligibility disputes, which can be downloaded from SSRN here.  We opine that the NCAA’s reinstatement process for resolving eligibility disputes lacks the independent impartial review necessary to insulate the process from judicial review under the Federal Arbitration Act (FAA).   We analyze the well-defined strands of private association law and the requirements of the FAA and conclude that the NCAA's Restitution Rule effectively constitutes an improper "waiver of recourse" clause.  We further propose that the NCAA can achieve its legitimate aim of quick and definitive resolution of eligibility disputes by affording college athletes the right to submit their disputes to binding arbitration before a neutral, expert arbitrator (or panel of arbitrators) consistent with the requirements of the FAA, similar to the numerous arbitration systems adopted by other sporting leagues and associations.

Not a sport, redux

Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.