Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" that cannot form the basis for liability (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury (the case settled, following a jury verdict awarding more than $ 10 million in punitive damages). He never lost his job and suffered no team- or league-imposed penalties. The league explained that it does not get involved with "civil matters," not even civil matters directly affecting the team or reflecting wrongdoing in running the team.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB and the Mets, other than bland insistence that they have policies against harassment and discrimination.

So can we find anything remotely resembling consistent and appropriate responses to possibly improper or unlawful employment practices? Or are there distinctions that actually matter?

One answer is accusations are insufficient, a position I could endorse; but then the non-action by the Knicks and action by the Hawks (especially for the latter, since it is not clear the Hawks could be liable for the comments) both were inappropriate. Worse, the Hawks incident may be the least likely of the three to result in liability under federal anti-discrimination law. A more cynical answer is teams/leagues will jump to act when it comes to players and race, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the issue that audio and video are overtaking our ability to judge evidence and proof. That, in turn, says some troubling things about our ability or willingness to rely on litigation to resolves disputes and determine legal rights and wrongs.

Donald Sterling Draws Ironic Judicial Assignment in Federal Lawsuit Against NBA

Long before Donald Sterling became known for making vitriolic racist comments and odd relationship choices, he had, to put it mildly, a less-than-sterling (couldn't resist that!) reputation as a landlord. As has been reported elsewhere, Sterling and his rental companies (including the Sterling Family Trust -- yes, that one!) were accused in a 2006 federal lawsuit of engaging in housing discrimination by refusing to rent properties to African-Americans, Hispanics, and families with children. Sterling and his companies settled that case in 2009 by agreeing to pay nearly $2.75 million. He also was accused in an earlier lawsuit of making discriminatory and disparaging statements about minority tenants and engaging in discriminatory housing practices, such as by refusing to accept rent from African-American tenants and then later attempting to use the tenants' supposed failure to pay rent as a basis for eviction. Court records show that Sterling settled that suit by agreeing to pay nearly $5 million in attorneys' fees to the plaintiffs.

Proving the old adage that "everything you do will come back to you" (G-rated version of "Karma can be a *****"), Donald Sterling can be none too pleased over the judicial assignment in his federal lawsuit against the NBA. In a deliciously-ironic twist, the judge assigned to that case is well-steeped in housing discrimination -- from the plaintiff's side. Sterling's federal judge is Fernando Olguin, who was appointed by President Obama in 2012. A significant portion of Judge Olguin's pre-judicial career was spent fighting housing discrimination. For six years, Judge Olguin was a name partner in the Pasadena-based law firm of Traber, Vorhees & Olguin, where he primarily represented plaintiffs in civil rights and labor cases. The law firm's website describes the firm as a "plaintiff-side" law firm that has "successfully litigated groundbreaking employment and housing discrimination cases, as well as other cases involving sexual harassment, unfair or unlawful business practices, claims of wage and overtime law violations, intentional human rights consumer rights, constitutional violations and educational rights." The firm's website adds that "[i]n fighting for and extending the right of people everywhere to be free from discrimination, we have brought cases against individuals, companies and public entities and sought to protect people from discrimination and harassment based on race, ethnicity, national original, sexual orientation, gender, familial status, disability and age." Earlier in his career, Judge Olguin served as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1991 to 1994, enforcing the Fair Housing Act and the Public Accommodations Act.

To some, this may seem like poetic justice. To others, it's just the roll of the judicial dice. Predicting how a judge will rule based on his or her past experience in private practice is futile (but fun!). And, to be clear, there is no indication that Judge Olguin or the Traber & Vorhees law firm ever represented clients in litigation against Donald Sterling and/or any of his companies. That would be clear grounds for recusal. But, nonetheless, I find this particular judicial assignment to be especially ironic --and amusing-- in view of Donald Sterling's past business practices. I'm pretty certain that Donald Sterling's legal team would have preferred litigating his case in front of a judge who did not spend the vast majority of his legal career representing victims of housing discrimination. No word yet on whether Judge Olguin is also a Los Angeles Clippers season ticket holder or a team sponsor! But Judge Olguin did make news recently when Above The Law reported that he was offering a "no-pay" judicial clerkship for recent law school graduates -- one of only a few federal judges across the country who engage in this practice. All things considered, this has not been a very good year for Donald Sterling. And his luck does not appear to be improving.

NCAA Relies on O'Bannon Ruling to Support its Motion to Dismiss the Jenkins Lawsuit

Last week, 32 lawyers from 11 law firms signed a motion to dismiss the Jenkins class action.  In support of their motion, which the defendants would like to have heard before Judge Claudia Wilken, the defendants are using Judge Wilken's ruling in O'Bannon against the class in the Jenkins case.  The defendants suggest that a ruling in favor of the Jenkins class would directly conflict with Judge Wilken's decision and injunction in O'Bannon.  On page 1 of the motion, the defendants argue:

In [the O'Bannon case], this Court held that appropriate limits on the amount of compensation that student-athletes may receive while in school are lawful under Section 1 because they serve the procompetitive goals of (i) maximizing consumer demand for amateur student-athlete intercollegiate sports and (ii) integrating student-athletes into the academic communities of their schools, which in turn improves the education the schools offer.  Accordingly, this Court determined that the NCAA and its members may—consistently with federal antitrust law—agree to limit the compensation that student-athletes in Division I (“D-I”) men’s basketball and Football Bowl Subdivision (“FBS”) football may receive each year for their participation in intercollegiate athletics, provided that those limits are not less than (i) the full cost of attendance, as defined in 20 U.S.C. § 1087ll, and (ii) $5,000 per student-athlete, distributed on a deferred basis.

But in a footnote to that second sentence, the defendants say:

Nevertheless, the NCAA and its member conferences and schools respectfully disagree with the Court’s ruling in O’Bannon, including its determination that the challenged rules constituted an unreasonable restraint of trade, as well as with the Court’s determinations of (a) the appropriate cap on student-athlete compensation, (b) who—as between the Court and the NCAA—should be permitted to set that cap, and (c) the legal significance of the Supreme Court’s statements in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 101- 02 (1984), that the NCAA’s eligibility and compensation rules are procompetitive because they differentiate collegiate sports from professional sports and thus give consumers a product that might otherwise be unavailable. 

If your head is spinning right now, you're not alone.

So my first question is, does the NCAA agree with the O'Bannon ruling or not?

If the NCAA disagrees with the ruling, why is it using such ruling to support its motion to dismiss the Jenkins case?

My final question relates to how the motion to dismiss should impact an appeal of the O'Bannon ruling by the NCAA.  If the NCAA is using the O'Bannon ruling as the basis for having the Jenkins case dismissed, should the NCAA be estopped from arguing that the O'Bannon ruling is incorrect?    

BREAKING: New Jersey Seeks Modification of Sports Betting Injunction; Could Lead to Legal Sports Betting in New Jersey's Casinos and Racetracks

Earlier this morning, New Jersey officials took two actions designed to fast-track "legal" sports betting in New Jersey. First, the New Jersey Attorney General issued a Formal Opinion concluding that "sports [betting] pools operated by casinos or racetracks continue to be exempted from criminal liability under New Jersey so long as no wagering occurs on a college sport or athletic event that takes place in New Jersey or in which any New Jersey college team participates regardless of where the event takes place." As part of that Formal Opinion, the New Jersey Attorney General also issued a directive to all New Jersey Law enforcement personnel, including local prosecutors, police, and sheriffs, that prohibitions against sports wagering in casinos and racetracks would no longer be enforced. While acknowledging that New Jersey was enjoined by a federal court from "implementing" its Sports Wagering Law, the  the Attorney General reasoned that by virtue of the "severability" provision contained in that law and the Third Circuit's recognition that PASPA does not prohibit states from repealing their criminal prohibitions against sports betting, "the central provisions of the [Sports Wagering Law] that establish that casinos and racetracks may operate sports pools remain in effect and exempt such activity from criminal and civil liability."

At the same time, New Jersey also filed a motion with U.S. District Judge Michael A. Shipp, the federal judge who entered the injunction against New Jersey in February 2013. The motion seeks a "clarification" of the injunction to explicitly recognize that New Jersey is not obligated to maintain the criminal prohibitions against sports wagering on its books and that the Attorney General's opinion "permissibly recognizes" that the "surviving" portions of New Jersey's Sports Wagering Law "exempt certain sports wagering activities in casinos and racetracks from civil or criminal liability." The motion also seeks to "modify" the injunction by including new language stating that the injunction "does not prohibit, and shall not be construed to prohibit, [New Jersey public officials] from recognizing or giving effect to a provision of state law that repeals prohibitions or restrictions on sports wagering activity."

A decision on New Jersey's latest motion is expected sometime in October. The Court has already indicated that the motion is "set for 10/6/14 before Judge Michael A. Shipp" and "will be decided on the papers." New Jersey had requested oral argument in its motion, but its request was denied by the district court. Not a good sign. This should lead to a relatively quick decision. As first reported by Christopher Soriano, a gaming attorney with Duane Morris, the leagues' and DOJ's response to the motion is due on September 22, 2014, with New Jersey's reply brief due on September 29, 2014. Based on this expedited briefing schedule (which is standard for New Jersey federal practice), I would expect to see a ruling by mid-October. Of course, this does not take into account the possibility of an appeal. For example, if Judge Shipp denies New Jersey's motion, look for New Jersey to appeal that decision to the Third Circuit. Likewise, if he modifies the injunction in the manner requested by New Jersey, the NBA and the other pro sports leagues will undoubtedly appeal that order, no matter what Adam Silver may have said on Friday.

My analysis of New Jersey's latest gambit appears in Law360 (subscription required) and Meadowlands Matters, and I will update this post later today or tomorrow to provide a more complete legal analysis, including an assessment of New Jersey's chances for success before the district court (and the Third Circuit).

SLB Contributors Headline ABA Annual Meeting Program on Sports Betting Legalization; Foreshadows NBA Commissioner Adam Silver's Surprising Public Comments

NBA Commissioner Adam Silver sent shock waves throughout the sports and gambling industries when he appeared at the Bloomberg Sports Business Summit yesterday and proclaimed that expanded legal sports betting was "inevitable" and that the league would "ultimately participate in that." This was shocking because the NBA has long been opposed to sports betting (who can forget the Tim Donaghy scandal?) and had recently joined forces with the three other major professional sports leagues and the NCAA in successfully blocking New Jersey's efforts to legalize sports betting. Of course, as some have noted, Commissioner Silver's comments recall his interview earlier this year when he acknowledged that sports betting increases interest in games that might otherwise be blowouts. Nonetheless, it is a quantum leap to go from acknowledging the obvious (but illegal) to embracing the concept of state-regulated sports betting, especially so soon after the recent federal court battle ended at the doorsteps of the Supreme Court. His encouraging comments may open the door to creative legislation (from pro-gaming states such as New Jersey and Delaware) in which single-game sports wagering would become legal and, in exchange, the leagues would be paid a licensing fee and/or share in the revenues derived from sports wagering.

Just three weeks earlier, Sports Law Blog stalwarts Michael McCann and Gabe Feldman spoke on this topic at the ABA Annual Meeting in Boston. They were joined on a panel by former U.S. Solicitor General Theodore B. Olson, Supreme Court litigator Erin Murphy, and West Virginia Solicitor General Elbert Lin (pictured below), the principal players in the NCAA v. Christie litigation. The title of the program was Game-Changer: The States' Big Gamble on Legalized Sports Betting, and, as its name implies, the program examined the controversy (as well as the federal constitutional issues) surrounding the efforts by states to legalize and regulate sports betting. As many of you know, a 1992 federal law (the Professional and Amateur Sports Protection Act a/k/a "PASPA") prohibits state-sponsored sports betting in every state except for those states (such as Nevada) that had conducted a sports wagering scheme at any time between January 1, 1976 and August 31, 1990. New Jersey had challenged the constitutionality of PASPA in the NCAA v. Christie litigation, and persuaded one Third Circuit judge (albeit, in a dissenting opinion) to conclude that PASPA was unconstitutional because it "violated principles of federalism." 

Anticipating (wrongly!) that the Supreme Court would grant certiorari, I persuaded the ABA's Tort Trial and Insurance Practice Section (I am the Chair of its Appellate Advocacy Committee) to present a CLE program devoted to this case, touting its "federalism" component that transcended sports law. I then invited the key players in the sports betting legal debate (Mr. Olson, Ms. Murphy and Mr. Lin) and two of the nation's leading sports law experts (Mike and Gabe, of course!) to be panelists. The ABA selected the program to be one of its "Presidential Showcase" events, owing to the nationally-significant subject matter and the quality of our speakers. The program was a resounding success, with some spirited exchanges among the panelists. Ted Olson really seemed to enjoy himself, as did Mike and Gabe. There is no better moderator than Mr. McCann, and Gabe brought some incredible insights to the issue of whether the sports leagues' recent partnering with daily fantasy sports leagues undermines their current opposition to sports betting. Thankfully, the program was videotaped, and we expect to post it soon.

The written program materials are available here.

New Law Review Essay on District Court Ruling in O'Bannon v. NCAA

It is my pleasure to share my newest law review essay "The District Court Decision in O'Bannon v. National Collegiate Athletic Association: A Small Step Forward for College Athlete Rights, and a Gateway for Far Grander Change."

The essay, which will be published this December in Washington & Lee Law Review, explains why the district court decision in O'Bannon v. NCAA was correct to hold that the NCAA unreasonably restrained trade, but incorrect to issue an injunction capping athlete compensation through a deferred trust amount of $5,000 per year.

The essay also looks at the possible next steps in the movement for college athlete rights, including potential appeals, lobbying before Congress, unionization efforts, Title IX concerns, and future litigation in Jenkins v. NCAA.

Reader comments on the essay on strongly appreciated.

Why the District Court's Ruling in O'Bannon is Favorable to the NCAA

Rick Johnson has an excellent op ed. piece in this week's edition of Sports Business Journal in which he explains why Judge Claudia Wilken's ruling in O'Bannon is a "win" for the NCAA.  A must read!  I also want to thank Rick for including a link to my Cardozo Law Review article.