Would You Join a College Players' Association?

The legal aftermath of Judge Wilken's certification order in O'Bannon v. NCAA takes a new twist with formation efforts for a college players' trade association.  Here's my take for Sports Illustrated.

Partial Certification in O'Bannon v. NCAA

I have a new article for SI.com on Judge Wilken partially certifying the class action lawsuit brought by Ed O'Bannon, Sam Keller and other former and current student-athletes.  Short take: her order is great news for future and current student-athletes, not so great news for former ones.

ASU 4th Annual Conference on Sports and Entertainment Law

I am looking forward to returning to speak at The Sandra Day O’Connor College of Law at Arizona State University for its 4th Annual Conference on Sports and Entertainment Law this Saturday, November 9th, 2013 from 9am – 4pm, followed by a reception for all attendees and speakers.  The Conference will take place at Arizona State University Memorial Union, Arizona Ballroom 221 (2nd Floor), 1290 S. Normal Ave., Tempe, AZ, 85287.  CLE credit is available for attorneys, including Ethics credit.  The Keynote Presentation will be given by Bud Selig, the Commissioner for Major League Baseball. 

Panel topics include:

• Agency –Sports and Entertainment Joint Panel
• Athlete Personal Website and Social Media Issues
• Music Rights and Copyright
• Licensing, Sponsorship, and Endorsement Agreements
  –with a mock negotiation
• Major League Baseball and Olympic Steroid and Drug Testing

Panelists include:

• Caleb Jay (Associate General Counsel, Arizona Diamondbacks)
• Gary Marchant (Faculty Director & Faculty Fellow, Center for Law, Science & Innovation)
• Steve Adelman, Venue Safety Expert, Adelman Law Group, PLLC
• Scott Peters, Safe Football LLC, former NFL and ASU Athlete

·       Gregg Goldman, 29th Drive

• Rodney Smith (Distinguished Professor of Law & Director, Center for Sports Law & Policy, Thomas Jefferson School of Law)
• Marc Edelman (Associate Professor of Law at the Zicklin School of Business, Baruch College, City University of New York & Professional Sports and the Law, Fordham University School of Law)
• James M. Marovich (The Marovich Law Firm, PLC)
• Mark Conad (Associate Professor & Acting Area Chair for Law & Ethics, Director of the Sports Business Specialization, Fordham University)
• Travis Leach (Partner, Ballard Spahr LLP)
• Timothy Liam Epstein (Partner/Chair, Sports Law Group at SmithAmundsen; and Adjunct Prof. of Law at Loyola University Chicago School of Law)
• Jason Belzer (Founder, Global Athlete Management Enterprises, Inc. & Writer for Forbes)
• Sam Renaut (Certified NFL Player Agent)
• Stephen Webb (Executive Director of Athletic Compliance, Arizona State University Sun Devil Athletics)
• Jaia Thomas (Sports & Entertainment Attorney, The Law Office of Jaia Thomas)
• Connie Mableson (Intellectual Property, Business, & Entertainment, Mableson Law Group, PLLC)
• Elissa Hecker (Entertainment & Business Attorney, The Law Office of Elissa D. Hecker)
• Debbie Spander (Sports & Emerging Media Attorney, Spander Digital Sports & Entertainment)
• Stephen Nebgen (Entertainment & Intellectual Property Attorney, The Law Offices of Stephen Wade Nebgen, PLLC)
• Jay Raftery (Raftery Law Firm, J.L. Raftery, PC)
• Don Gibson (Founder, Kavi Sports & Entertainment)

Its always a great conference, and looking forward to having fellow Sports Law Blog contributors joining me this year.

Register at this link. 

Confronting Locker Room Bullying with Physical Violence

An interesting development in Incognito-gate yesterday, with stories that Miami Dolphins GM Jeff Ireland told Jonathan Martin's agent that Martin should punch his tormentor in the face.

One downside of punching someone in the head, of course, is that one has committed a tort: battery.  Can a person use force to defend themselves from bullying?  In my article Defense Against Outrage, I explore this very question.  I ask whether, if the bully's conduct rises to the level of extreme or outrageous conduct, a person can use physical force in "self-defense" against the emotional damage bullying can do.

Some have argued that Richie Incognito's bullying, pervasive and offensive, would rise to the level of IIED.  Would that have created a privilege to use physical violence in self-defense?

The University of New Hampshire School of Law and Sports Illustrated proudly invite you to attend A Town Hall on O'Bannon v. NCAA on Tuesday, November 5th from 6 p.m. to 7:30 p.m. in Room 282, followed by a reception in the Franklin Pierce Center for Intellectual Property.

The Town Hall will examine how a class action lawsuit against the NCAA could radically change college sports as we know it.  Through legal arguments sounding in intellectual property and antitrust, Ed O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures.  The Town Hall will also consider related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act.  Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.

The Town Hall will feature some of the most influential and insightful people in college sports:

Moderator
B.J. Schecter	B.J. Schecter, Executive Editor of Sports Illustrated and SI.com. Schecter is a sports journalism professor at CUNY Graduate School of Journalism and Columbia University Graduate School of Journalism.
Panelists
Charles Grantham	Charles Grantham, former Executive Director of the National Basketball Players Association (NBPA). Grantham was an architect of the revenue-sharing business model while protecting the NBA’s greatest asset—its players. Currently, he is a sports business consultant and an Adjunct Professor at Seton Hall University’s Stillman School of Business and New York University where he teaches at the graduate level on collective bargaining and dispute resolution in professional sports.
Professor Michael McCann	Professor Michael McCann, Director of the Sports and Entertainment Law Institute and a tenured professor at UNH Law, teaching Pro Sports Law, Amateur Sports Law, andSales.  Legal Analyst and Writer at Sports Illustrated & SI.com.
Alan Milstein	Alan Milstein, Shareholder at Sherman Silverstein in New Jersey, Milstein is one of the nation's leading litigators in both sports and bioethics.  Milstein has litigated on behalf of Allen Iverson, Carmelo Anthony, Eddy Curry, Allen Houston, Maurice Clarett & other sports figures.
Professor Alexandra Roberts	Professor Alexandra Roberts, Executive Director of UNH Law's Franklin Pierce Center for Intellectual Property and a professor of entertainment law and trademark law. Roberts is a former intellectual property litigator at Ropes & Gray LLP in Boston and New York.
Marty Scarano	Marty Scarano, University of New Hampshire Athletic Director in his 14th season, National Association of College Directors of Athletics "AD of the Year" in 2007.  During Scarano’s tenure, UNH teams have made 44 NCAA postseason appearances and captured 14 conference titles. Those teams have also achieved one of the best graduation rates among NCAA members.
Sonny Vaccaro	Sonny Vaccaro, Leading advocate for rights of college athletes and an unpaid adviser to Ed O'Bannon's legal team. Founding Chairman of The Roundball Classic and ABCD camp.  While a marketing executive at Nike, Vaccaro signed Michael Jordan to his first major endorsement package.

Come for the enthusiastic discussion and debate; stay for the hors d'œuvre, beverages, and networking opportunities. We hope to see you there!  Please RSVP to ip.center@law.unh.edu.

* UNH Law is about an hour drive from Boston and directions can be found here.

** Portions of the town hall will be aired on SI Now, Sports Illustrated's Daily Talk Show.  Other portions will be shown through video provided by UNH Law's Sports and Entertainment Law Institute.

Mike Pouncey Subpoena

A potentially major development in the Aaron Hernandez murder case occurred last night, when Dolphins center Mike Pouncey was served with a grand jury subpoena after the Dolphins played at the Patriots.  The grand jury is investigating a potential scheme involving the same of guns and it may be connected to Hernandez.  On SI.com last night, Pete Thamel and Greg Bedard broke the story and I have a legal analysis this morning.

Procompetitive Effects and the Ban on Paying College Athletes

USA Today's Steve Berkowitz wrote on Friday that Judge Wilken denied a motion to dismiss in the O'Bannon litigation.  Here is an excerpt from Berkowitz's article in which he addresses Judge Wilken's remarks concerning whether a ban on athlete pay serves a procompetitive purpose:

Meanwhile, the judge also raised questions about the applicability to this case of the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that "in order to preserve the character and quality of the (NCAA's) 'product,' athletes must not be paid, must be required to attend class and the like."

The NCAA has relied upon this language in defending its amateurism system and has successfully used it [in] many prior legal cases.

However, Wilken wrote in Friday's ruling that the case "does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses.

"Although it is possible that the NCAA's ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, Plaintiffs' plausible allegations to the contrary must be accepted as true at the pleading stage."

Wilken also wrote that the Supreme Court "never even analyzed the NCAA's ban on student-athlete compensation under the rule of reason nor did it cite any fact findings indicating that this ban is the type of restraint is 'essential if the (NCAA's) product is to be available at all'. More importantly, the Court never examined whether or not the ban on student-athlete compensation actually had a procompetitive effect on the college sports market."

Berkowitz's piece raises a really interesting question.  In sports antitrust cases, the issue concerning procompetitive effects essentially revolves around competitive balance.  Why is there an assumption that a ban on athlete pay increases consumer demand for college sports and/or fosters competitive balance?  

First, while I do believe there are many consumers who do not want athletes to be paid, I have serious doubts whether there is any correlation between consumer demand and athlete pay (or lack thereof).  For starters, the consumer knows there are lots of athletes in big-time college sports who are paid under the table from boosters and various other third parties (unless of course one believes that the number of athletes getting paid is limited to only those who actually get caught).  But more importantly, if the rules were changed to permit athletes to be compensated for their names and images, I don't believe fans and alumni would take the position, "I'm not watching my team play this weekend because I read somewhere that somebody paid our defensive end $1,000 this week for signing some memorabilia."  

But who cares what I think and let's assume for sake of argument that some consumers would not be interested in the product if the athletes were paid more than they are currently.  How much relevance should it have for antitrust purposes?  Is a producer insulated from antitrust liability simply by calling its product "unpaid labor"?  If all of the law firms in the U.S. agreed to restrict the pay of their associates (in the first four years before making partner) to law school tuition reimbursement, would the agreement pass antitrust scrutiny if they marketed their product to the consumer as "cheap associate labor"?  Most would not dispute that a team salary cap violates antitrust law but is the answer different if a sports league calls its product "salary capped labor"?  If the NFL could show that it is losing consumers because they believe the athletes are grossly overpaid, would/should that have any relevance for antitrust purposes if the league put an individual cap on each player's salary?  

Second, on the issue of competitive balance, the irony is that college football arguably has much less competitive balance than professional football where the athletes are paid competitive wages.  Unlike professional football, college football has "dynasties" and "powerhouses".  For a college sport that supposedly has competitive balance, why are Alabama's football fans leaving so many empty seats in the stadium?