Friday, March 26, 2004

More on Legal Liability and On-Field Actions: A number of people have weighed in now on the issue of legal liability for actions that occur during a sports contest. Most of the arguments center on the fact that the actions are not part of a "civilized society" and would be prosecuted if they did not occur in a professional sports setting. But what is being missed is that these professional athletes assume much of the risk of their particular sports, often including violent acts that are outside the realm of normally-accepted behavior.

The Uncivil Litigator, one of those outraged, writes:

    When I play touch football or hoops at the local basketball court with my friends, do all of us have license to assault, maim and injure one another intentionally because of the "sports exception"? I doubt it. If I decided to charge someone during a softball game and knocked their teeth out, do you think the police would refuse to arrest me? I doubt it. Why, then, should professional athletes get away with these actions? Because they're rich?

The answer to this question is that for the professional athletes, it is part of the game. The assumption of risk doctrine states that a participant in an activity in which there is contact or a chance of injury assumes the risks normally associated with that activity. Now, in little league and recreational sports, fighting is not normally associated with the activity. In fact, fighting is strictly prohibited and in many cases results in banishment from the league. Thus, someone injured in a fight could most likely bring suit, claiming that he did not assume the risk of being hurt in that manner.

However, in professional hockey, fighting is considered part of the game. Teams have enforcers, referees allow players to brawl for a minute or so before interfering and fighting in most cases is met with only a minor penalty (the same as tripping). In very few cases will a fight result in a player's ejection from a game, and in even fewer instances will it result in a suspension. This means that the league sanctions the practice, and in some cases, even encourages it (as it puts people in the seats). Thus, when professional hockey players skate onto the ice, they assume the risk of certain injuries associated with fighting, hard checks and other similar conduct.

OK, but even if you buy this, Bertuzzi's hit was clearly outside the bounds of normalcy, even for hockey, right? The Sports Litigation Alert, Vol 1, issue 3 states:

    "Although hockey players might be said to assume the risk of violent contact, there may be a difference between the violent contact that is ordinarily expected in the sport, and what might be considered a premeditated assault with the intent to cause serious injury," said Richard T. Boyette, First Vice President of the Defense Research Institute. . . Attorney Carla Varriale of Ohrenstein & Brown in New York City added that while professional athletes do assume the ordinary risks of the game, they "don't assume the risk of intentional conduct that is designed to injure."

But how outside the norms of hockey is it, even if there is intent to injure? Hockey players routinely hit one another in a manner that can only be seen as intending to injure, even if only to cause temporary pain. Even in the Bertuzzi case, the punishment the NHL handed out, while severe, was not what one might expect from an incident so outside the bounds of normalcy. And let us all be honest with ourselves. If the punch had just resulted in a broken nose, would anyone even be discussing this hit? In a game earlier this week, Dallas goaltender Marty Turco hit Edmonton player Ryan Smith in the face with his stick. This was not a poke, either -- it was a swinging motion that looked directly aimed at Smith's face. Turco's suspension for this "assault with a deadly weapon" -- 4 games. When hockey players go onto the ice, they assume the risk of many violent acts because they are part of the game. The NHL has all but said so through the meager punishments it hands down for those few hits that actually do cause injury.

The outrage is understandable, especially when a tragedy occurs. But the blame, and the liability, should not rest with the players. The league, in permitting this violence to occur, has created an environment where players assume the risk of being involved in a fight, violent check or retaliatory strike that would be deemed criminal or tortious in any other environment. If legal liability is to occur, the activity must first be shown to be outside what is expected, and in some cases even anticipated, in the sport.

Update: In the comments section, the Uncivil Litigator correctly points out that the assumption of risk doctrine applies only in tort law, and not for criminal prosecutions. My argument is not premised on actually applying the assumption of risk doctrine, but rather that the doctrine helps determine what should be criminalized and what should not be on the field of play. Tackles in football are not assault because they are "part of the game." Assumption of risk helps determine what is "part of the game" and what is not.

Thursday, March 25, 2004

Tax Law and Sports: This is an area of the law I do not cover much, despite the fact I am currently learning a great deal on the subject. But a good friend sends this along from her tax textbook:

    Allocation issues have been particularly contentious when a professional sports franchise is purchased. For example, in Laird v. United States, 556 F.2d 1224 (5th Cir. 1977), cert. denied, 434 U.S. 1014 (1978), the Atlanta Falcons professional football team was acquired for about $7,750,000. The purchaser allocated $50,000 of the cost to the National Football League franchise and $7,700,000 to the players' contracts. Under IRS rulings, the franchise was treated as a nonwasting asset, but the players' contracts were wasting assets with an estimated useful life of 5.25 years. The court held that $3,500,000 should be allocated to the players' contracts and $4,250,000 to the franchise. See also Section 1056(d), which now establishes a presumption that no more than 50% of the price of a sports franchise is allocable to players' contracts.

Why is this important? Well, it is pretty complicated and has to do with Section 197 of the Tax Code. Eric A. Thornton of Williamette Management Associates explains it best:

    Section 197 provides that the franchise agreement intangible asset acquired in the purchase of a professional sports team is not amortizable for income tax purposes.

    However, other intangible assets acquired with the purchase of a sports team (but not components of the national franchise agreement) may be amortizable for income tax purposes. These acquired intangible assets may be amortized if the intangibles (1) have an identifiable value separate from any acquired goodwill, going-concern value, and the franchise agreement intangible asset and (2) have a determinable remaining useful life ("RUL").

Thus, the value of the franchise itself is not amortizable (meaning it cannot be depreciated over time for the tax benefit), but other intangible assets, such as player salaries, television rights and sponsorship agreements, can be amortized. Of these, the most valuable by far are the player salaries. As a result of this rule, purchasers of sports franchises have an incentive to allocate as much of the cost as possible to other intangible assets and not to the value of the franchise itself. The IRS knows this as well and closely scrutinizes acquisitionsions of professional sports teams.

Perhaps the most fascinating part of the textbook excerpt is that the Falcons were sold in 1975 for $7.5 million. Adjusting for inflation, this is $26 million in 2002 currency. Coincidentally, that is the year Arthur Blank bought the team for $545 million.

See, even tax law can be interesting when it deals with sports.

Big Verdict For Former High School Athlete: A jury awarded a former female high school basketball player $1.5 million in punitive damages, after finding that her former coach caused her to develop an eating disorder. The plaintiff claimed that the coach's verbal abuse and requests that she lose ten pounds caused her to contract the disorder, which she fights to this day. The school district, which is liable for the damages, has not decision whether to appeal.

More on Colorado Scandal: A new allegation of rape and a question: Did the first accuser have revenge on her mind? Should that even matter?

Why Sports Matters in Law: ESPN reports that Kobe Bryant's accuser has asked the judge to set a trial date as quickly as possible if the state's case against the basketball star. Her mother, in a letter to the judge, describes the horror her daughter has gone through, receiving death threats, being hounded by the media and having to move to four different states.

Obviously, all of this attention stems from Bryant's status as a basketball star and this provides a clear example of how sports can impact the law (and not vice versa). More Americans have learned about the criminal justice system through this case than in any proceeding since the OJ trial. In addition, new terms such as "rape shield law" have entered the discourse of sports fans and ESPN commentators. In a way, this is good, because the public is learning of the plight of rape victims, and the potential dangers to those accused of rape. However, even with rape shield laws, the public and the media have managed to ascertain the identity of the accuser, making her life a living hell. Could this prevent other victims of rape at the hands of sports stars from coming forward? Absolutely. Call it the "rape sports law" but this case could really make true victims hesitant to voice complaints. And in the long run, this is clearly bad for the interaction of sports and the law.

New RSS Feed: I have added an RSS feed to go with the Atom Feed. The link is to the right.

More on NCAA Graduation Rates: The NCAA tournament always brings a discussion of "student"-athletes and academic performance. The New York Times ran an article outlining the graduation rates of the Sweet 16 schools (only 4 are above 50%) and Gregg Easterbrook wrote an essay voicing his disdain at the current state of affairs. (Hat tip: John Stoner)

I agree that there is a problem, but I am even firmer in my belief that the individual schools should not shoulder the blame. Yes, ultimately the schools are responsible for educating their students and student-athletes, but the NCAA cannot take the high road in this debate. Through its policies, the NCAA allows the exploitation of these student-athletes and the sacrifice of their educations all in the time of better opportunities for others. The money generated this month will fund next year's budget for many non-revenue sports and for entire programs in Division II and Division III. The $6 billion being paid by CBS represents the largest chunk of the NCAA's revenues and the reason that the other divisions can even exist. However, players reaching the Final Four will miss approximately 12-15 days of class this month, due to travel, media days, practices and games. So, how can the NCAA with a straight face decry decreasing academic standards when its own policies cause players to miss more than half their classes in a month?

There are, of course, other sides to this argument. Many other students, athletes and non-athletes, miss class, either due to extracurricular activities or due to general laziness. But from my days at college, I cannot recall any other activity that required such a prolonged absence. Athletes also have access to incredible academic resources, such as private tutors, study halls and breaks on some assignments. But the message sent from the NCAA is clear: you are to play basketball and generate lots of money. And then if you have time, go to class. The message to schools is no less clear -- studying is great, but your players better be at the media session.

If change is going to occur in this area, the NCAA must examine its own policies, and not just blame the individual schools. If this does not happen, the "student" in student-athlete will continue to fade away, until the concept is nothing more than a relic of the past.

No Refunds, No Exchanges, No Fair: Filip Bondy of the New York Daily News has an entertaining piece on the accepted sports' practice of "no refunds, no exchanges." Especially this season, as the NHL's Rangers are woefully underperforming, why should fans have to stick by purchases made seven months ago when teams promised greatness?

    No refunds, no exchanges. The fine print on the stub is as culturally ingrained as the hot dogs in the stands. Caveat emptor. Let the buyer beware. Sports franchises, by tradition, are permitted to rip off consumers like few other vendors. Even airlines, those dastardly profit-mongers, offer limited exchanges on booked travel. Yet sports fans have come to accept this policy as doctrine, as if it were handed down from the big Owner in the sky.

There is no legal remedy for this, unless Congress wanted to pass some sort of statute. So long as there continues to be a demand for sports tickets, people will buy them with whatever conditions the market can bear. In reality, many people attend sporting events, especially professional sporting events, not for the game but for a host of other reasons. Business deals are done during halftime. Kids are entertained by the gimmicks during time-outs. Everyone likes getting hot dogs and beer at the baseball park. Sports are a business and owners are businessmen who are not about to offer refunds should their star player be injured. And so long as fans continue to foot the bill, there is no reason to believe anything will change.

Bryant's Accuser Testifies: The woman accusing Kobe Bryant of sexual assault testified in a closed hearing yesterday, responding to questions about her sexual practices before and after the alleged incident. The judge in the case will decide, based on yesterday's proceedings, whether the woman will have to face similar questions in front of a jury in the case. Colorado's rape shield laws protect victims from having to answer such questions, as the responses may unfairly prejudice a jury or discourage rape victims from bringing claims. However, if the judge deems the testimony vital to ensure a fair trial for the defendant, the law provides for an exception. The prosecution's effort to prevent Wednesday's hearing based on the law was rejected by the Colorado Supreme Court.

A number of legal scholars have decried the judge's decision, describing it as a "huge setback for survivors and victims to come." However, the court has taken a number of steps to protect the victim's identity, including completely closing the courtroom for her testimony. It is unfortunate that her name and picture have been splashed across the Internet and the tabloids, but the onus for that falls on the media, not on the court. No matter the notoriety of the defendant and the consequences stemming from this, the judge has a duty to ensure that he has the opportunity to put on a full and complete defense, because he remains "innocent until proven guilty."

Update: Amanda Paulson asks: Is the rape-shield law working?

Tuesday, March 23, 2004

Baseball Union News: Good news and bad news from the Major League Baseball players union. The union has relented and stated that it may be open to more stringent drug testing requirements in the wake of Congressional hearings.

In more typical union news, the Boston Globe has an article revealing that the players union continues to deny membership to the replacement players from the 1994-95 work stoppage, cutting them out of some licensing and other benefits. I think a quote player said it best: "It's just chicken [expletive]."

Price Sues Alabama President: With his lawsuit against Sports Illustrated in appeal, former Alabama football coach Mike Price has sued Alabama president Robert Witt, accusing him of fraud and misrepresentation in the events that led to his firing. Price is not suing Witt in his official capacity, as a similar suit was dismissed last year. Rather, he is going after Witt as an individual, claiming that he presented a slide show to the Board of Trustees that "created, assembled and presented to intentionally and maliciously place (Price) in a false light." The article describes the slide show:

    The slides, a parody of a MasterCard advertising campaign, show images of a golfer, a bucket of golf balls and a bottle of bourbon, with their respective costs, followed by the statement: "Failing to give a tip for services. Then, having your business credit card stolen after breakfast. By hookers. Who run up an enormous tab. Priceless."

Price was subsequently dismissed by the university and now seeks damages. Mr. Witt's attorney called the lawsuit baseless and suggested that Price should "move on" rather than calling "continued attention to his embarrassing conduct."

Cubs to Block One Rooftop View: The Chicago Cubs have begun making preparations to block the view from the one rooftop that has not agreed to share its profits with the team. The team is being mum about the exact plans, but has hired lighting and scenery experts from Broadway to block the view from the rogue rooftop without impeding the views of other fans or disrupting the scenery of Wrigley Field.

As I discussed in January, the Cubs reached a settlement with 11 of 13 rooftop owners. The 12th followed suit this week, leaving only one owner in opposition to the team. However, the final owner has no interest in settling with the team and is eager to take the Cubs to court.

His eagerness raises an interesting point on legal strategy. The Cubs want to avoid court for two reasons: (1) if they lose, then all rooftop owners will be able to view the games for free, and perhaps more importantly, (2) if the Cubs have to go to court, their financial records will become public. This of enormous interest to both the team and Major League Baseball. As Carol Slezak writes:

    I wonder how much money the Cubs get from WGN-TV, Tribune Co.'s superstation, for broadcast rights to the games? If Tribune Co. is underpaying the Cubs for the TV rights, the Cubs would be shortchanging their major league baseball partners when it comes to revenue sharing, wouldn't they? Not to mention their fans, who for most of their lives have been subject to the Cubs' ''we're too poor'' mantra.

The ending of this saga will have interesting implications, both legal and sports-related. It looks like the Cubs are picking a fight, but this may be one scrum they will later wish they had avoided.

NASCAR, SMI Near Settlement: The Dallas Morning News (log-in required) reports that NASCAR is close to reaching an out-of-court settlement with Speedway Motorsports, the parent company of the Texas Motor Speedway. Two of SMI's shareholders brought a breach of contract claim against NASCAR, claiming that the speedway was promised two events a year. The settlement could impact a number of other NASCAR tracks, including Rockingham and Darlington, as well as shaking up the NASCAR schedule for next season.

Monday, March 22, 2004

Time Delay on Sports Broadcasts: In the wake of the FCC increasing the fines for indecency on television to upwards of $3 million, a number of networks have discussed plans to implement delays of up to five minutes during the broadcast of live events, to ensure that all indecent content is deleted before it reaches users. Although CBS recently decided not to implement a ten-second delay during the NCAA Tournament, other sporting events in the future could be subject to such a delay, in order to prevent liability on the part of the network.

Could the use of such a delay be a violation of intellectual property law? Under federal copyright law, the holder of a copyright has several exclusive rights, including the right to a public performance and the right to create a derivative work. But in the broadcast of a live sporting event, who is the copyright owner? In most cases, the networks and the sports league reach an agreement whereby the copyright is shared (thus, the announcement that you must have the expressed, written authorization of the NFL and CBS Sports). I am not certain of the exact contours of these arrangement, but the league has a claim to the intellectual property of what is being "publicly performed" on the field and the network has a property right in how that performance is shown to the audience.

However, the possibility exists that use of a time delay on the broadcast could violate the agreements between the sports property and the broadcast, especially depending on the level of censorship. If a player were to yell profanity or make an obscene gesture during a play in the game, could the network edit this out without changing the essence of the "performance?" Would this constitute a derivative work in violation of the rights of the sports property?

Currently, the country's concern over preventing indecency on network television will most likely trump any small concerns over intellectual property. However, as the political winds change and the issue of indecency retreats to the back of the line, sports leagues may grow leery of granting too much authority to the broadcasters. In the next round of television agreements, I would not be surprised to see this issue addressed and for a contractual agreement to be reached.

The Battle of Brooklyn: has more on the struggle of Brooklyn residents who would lose their homes if Bruce Ratner's plan for a new arena comes to fruition. A number of residents have retained lawyers to fight the eminent domain claims (discussed in this earlier post). The main debate is over whether the land is being taken for public or private use. Opponents claim that building an arena and bringing in an NBA basketball team is clearly a private use. Supporters, however, point to the incredible economic growth and community development that can come with a new arena and professional sports franchise.

Economic progress has always come at the detriment of some individuals, nearly all of whom are in the lower-third of the income brackets. While the benefit to the overall community could be significant, one should also look at the faces of some of those that could fall victim to the Brooklyn Nets.

NFL Seeks to Avoid Another Clarett Situation: The NFL and the NFL Players Association have begun working together to insert language in the current collective bargaining agreement that would require all draft-eligible players to be three years removed from their high school graduation. One source quoted on said, "The league doesn't want this to ever happen again, and neither does the union. What Clarett and the other guys got was a one-time deal."

This move is intended to prevent another legal challenge by a player in the wake of the Clarett decision. However, there is still a chance that Clarett will be overturned on appeal. Tulane law professor Gary Roberts has strong words about the district court ruling:

    "Employers and unions have these entry requirements and collective-bargaining agreements all the time. The decision Judge Scheindlin made is just wrong. It's just so foolish that she would rule otherwise. Any labor lawyer in the country would agree."

As I noted in my earlier analysis of the case, players are not barred absolutely from entering the profession, as Judge Scheindlin claimed. Rather, every player is able to enter three years after the graduation of their high school class, and at that time reaps the benefits of the collective bargaining agreement made on their behalf.

Can Baseball Change Its Drug Policy?: Rob Manfred, Major League Baseball's top labor lawyer, has hinted that Commissioner Bud Selig may not be able to strengthen the baseball drug policy until the current collective bargaining agreement expires. He acknowledged that the players' association has no obligation to bargain over drug testing until the agreement expires in December 2006. The player's association, of course, should do this anyway for the good of the game, but it remains to be seen what changes, if any, will take place.

Thursday, March 18, 2004

Why Today Should Be a National Holiday: Today marks the beginning of the NCAA Tournament, and I for one think everyone should be granted a holiday from work to be able to watch the greatness of March Madness. Why should today be a holiday?

- The first round proves that no matter how much of an underdog you are, you can still beat the toughest opponent.

- Most of the players you will see are true student-athletes that will "be a professional in something other than sports." There is nothing more inspiring than seeing someone play because they love the game.

- Princeton proves that you can be smart and still be good at basketball.

- The break between Martin Luther King Day and Memorial Day is just too long. This would break it up nicely for those that do not get President's Day.

- President's Day? Is that still a holiday?

- Records do not matter. Everything is focused on the present moment.

- Somewhere, future Senators, judges, CEOs and community service professionals are painting their faces and cheering like mad for their alma mater. In fact, some current members of those professions may be doing the same.

Female Athletes Sue Baylor: Seven members of the women's crew team have filed suit against Baylor University, claiming a Title IX violation after the school failed to elevate the team to varsity status.

    The suit claims Baylor doesn't provide enough opportunity or appropriate funding for women's intercollegiate athletics. Specifically, the rowers contend the school has ignored their request for varsity intercollegiate status that would include athletic scholarships and also failed to provide sufficient coaching or equipment.

Under Title IX, a university is not required to respond or even entertain requests from any club sport, male or female. The only requirement is that the opportunities available for male and female athletes are "substantially proportional," as is the amount of money allocated to each gender. Baylor can even have a male crew team and not a female crew team, although with the amount of money and scholarships consumed by football, this is rarely the case.

Golf Course with Legal Name in Legal Battle: The Due Process Stable golf club (do a lot of lawyers tee off there?) is suing a former member for making use of the image depicted in the club's logo. The suit for trademark infringement claims that the Eagle Oaks, a club ten miles away, is trying to confuse the public into thinking the golf courses are one in the same.

I have not been able to find a website or the logo for either course. If anyone can and is willing to send it to me, I would appreciate it.

NCAA Tourney News: As March Madness begins today, some NCAA updates:

The Sports Business News has a summary of a Wall Street Journal article on the importance of money in the NCAA Tournament.

The NCAA has also indefinitely extended its ban against awarding championship sites to South Carolina because the state continues to fly the confederate flag.

The Washington Post reports that the NCAA is considering regulations that would disqualify teams from the postseason due to poor academic performances. But would this encourage better academics or better cheating?

Baseball News: It has been a day since I posted, so a news update is needed:

Major League Baseball has banned THG, the steroid that is the center of the BALCO controversy. The FDA classified THG as an illegal drug in the Fall. But the Washington Post thinks the ban may be ineffective because new drugs are right around the corner.

Continuing on the drug front, Murray Chass writes of the obstacles Bud Selig is facing, most notably the players union, in trying to fight the drug problem in baseball. The Sports Business Daily (subscription required) reports that Selig may use his "best interests of the game" powers to institute stricter drug testing policies for players. But, at least one major league player says that testing must be done by an independent party, with the owners taking no part.

The Chicago Tribune outlines past uses of the "best interest" clause by Major League Baseball commissioners, saying that its effectiveness often depends on the strength of the leader.

And, in contrast to what I wrote last week about American fans' indifference to off-field troubles, Reuters reports that many European football fans care deeply about the off-field actions of athletes.

Tuesday, March 16, 2004

Is Your NCAA Tournament Pool Illegal?: Who do you have in the Elite Eight? Which #12 will upset a #5? Do you think Pitt can win it all? If it is March, it must be NCAA Tournament pool time. Along with flowers blooming and spring training, plucking down $5 and agonizing over the 7-10 matchups has become a rite of spring. Some experts predict that more than $1.5 billion in productivity will be lost over the next three weeks as workers schedule out-of-office "meetings" and cheer for the mighty Davids, so long as their alma mater is not the Goliath.

But gambling is illegal in the United States, isn't it? Sure, there are exceptions, like Nevada, Atlantic City and Indian reservations-- but doesn't this country frown on such moral turpitudes? The short answer is yes, but you are probably ok anyway. In most states, gambling, even in a small-stakes pool, violates state anti-gambling laws and could subject you to a misdemeanor. If you take the initiative to organize the pool, you could be subject to a felony in some states, or possibly even liability under federal law. In the research I have done, only Montana has turned up as allowing tournament pools under a de minimis exception to the gambling laws, and Texas law appears to permit the pools so long as the organizer does not take a cut or fee for his/her troubles.

So, should you flee the state for your illicit activities? Most police and government officials say no. In most cases, the government is not interested in cracking down on $100 pools (though your employer may have a different opinion). Usually, the police do not get involved unless (1) you have ignored your employer's request to stop, (2) your pool is so large that substantial sums of money are involved or (3) there are minors implicated. Other than that, you could get fired (remember Rick Neuheisel?) but you will probably not be arrested.

However, some state officials, including those in Charlotte, have warned that offenders could be prosecuted, no matter how small the stakes. In addition, everyone should remember that gambling on the Internet remains illegal under federal law (see below). Thus, before making your presence as the local kingpin too well known, check and see if your local law enforcement is cracking down.

Finally, gambling can cause legal problems in one final, but often forgotten manner: income tax. Gambling winnings must be reported as income on your federal income tax sheet. The chances of an audit turning up that $100 won in a cash pool are not high, but you never know.

So, while many states turn a blind eye to the illegal madness of March, keep in mind that this does not have to be the case. Now, where did I put my bracket?

Note: Please keep in mind that this is intended for amusement or research purposes only. In no way should this be construed as legal advice or counsel. I am not (yet) a lawyer and I am not representing myself as one. If you get arrested, I hope you can read this Blog in prison, but I am not responsible. Thank you.

Breaking News: From ESPN:

    A federal judge knocked down a lawsuit that sought pension and medical benefits for a group of former major league players who claimed they were shortchanged by the league because they are white. U.S. District Judge Manuel Real's decision Monday was a victory for the league, which argued that the former players were essentially looking for a handout they didn't deserve.

    The proposed class-action lawsuit -- filed last year against commissioner Bud Selig, the league and its 30 teams -- stemmed from baseball's decision in 1997 to grant a $10,000 annual pension to some former black players who played in the Negro Leagues and for major league teams, even though they were never vested under the former requirements.

    The lawsuit argued that the former players -- nearly all white -- are entitled to the same benefits as their counterparts in the Negro Leagues.

More later on this decision. Thanks to the Sports Economist and reader Lewis Shaw for the tip.

Feds Going After On-line Gambling: The New York Times recently explored the attempts of the federal government to crack down on Internet gambling sites, many of which are hosted overseas and thus outside the jurisdiction of the American government. Federal prosecutors are avoiding this problem by threatening legal action not against the gambling sites, but rather against American companies that run advertisements for the sites. The threats are based on a controversial legal concept that holds that the American businesses, by providing advertising and other services that support Internet gambling, are "aiding and abetting" online casinos.

As a result, on-line gambling sites, most of which focus in some part on sports gambling, are finding it increasingly difficult to attract new customers and remain profitable. There are, however, legal challenges that could be raised against the government's actions.

Primarily, the companies could argue that the implicit ban violates 1st Amendment free speech rights by limiting choice of advertisement. However, commercial speech generally receives the lowest protection of any non-indecent speech, placing a larger hurdle for the companies to overcome. In addition, the government's case is improved on policy grounds, as the companies are profiting on an activity that clearly violates American law.

Of course, there is the libertarian debate that claims the government should stop making moral judgments, such as banning gambling. However, while the laws remain on the books, companies may have difficulty convincing a court that free speech trumps in this case.

Should Athletes Be Paid?: ESPN's Writer's Bloc revives the debate we seem to see during every March Madness: should college athletes be paid? There are no new arguments but the dialogue is an interesting one.

As a normative issue, I have not decided where I stand on this issue. Legally, though, I believe that Title IX would prevent implementation of such a policy, as athletic budgets cannot stomach paying both male and female athletes. I explore this in my recently-published article, which I am still trying to get on the web.

News Update: The thrill of victory, the agony of defeat, and crying in Philadelphia.

Terrell Owens has won his grievance against the NFL, and will be traded to the Eagles, as demanded. More information will be added later, but it is good to see that a player can miss a deadline met by all others and then claim he is being treated unfairly. Congratulations, Eagles, you have the league's biggest headache on your team.

But, wait, Philadelphia already knows about this because the 76ers have Allen Iverson. Apparently, refusing to do what you are paid millions for is not enough to warrant a punishment in the NBA. Iverson's refusal to come off the bench will not be admonished by the team. Why are there even coaches in the NBA? They clearly have no power, whatsoever.

Finally, staying in the same division as Philadelphia, Washington Redskins linebacker has filed a grievance against the team in an attempt to collect a $6.5 million roster bonus he claims he will be owed.

    Arrington and his agent, Carl Poston, say the roster bonus for 2006 was agreed to by the team but was not included in the eight-year, $68 million extension that Arrington signed in late December. With the bonus, Arrington's contract would be worth $74.5 million. Arrington is requesting that the NFL take his case to arbitration to have the bonus placed in the contract or have the contract voided.

I would say that the parol evidence rule applies in this case (basically, oral agreements are superseded by later written contracts), but the law does not seem to apply in the same manner in professional sports. The agents for Owens and Arrington should be happy the league keeps bailing them out. In both cases, I see clear examples of legal malpractice that could be pursued by the players if not for the influence of the unions. Arrington acts through his agents and the agents initialed every page of the contract before signing it. Unless there is some evidence of fraud or intentional misrepresentation on the part of the team, why should this contract be re-written or voided? No reason, other than professional athletes tend to get what they want.

Sunday, March 14, 2004

High Schoolers and the NBA: Michael McCann, a visiting scholar at Harvard, has recently published an outstanding article on the legal and economic implications of high schoolers skipping college and entering the NBA directly. The article, "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft," was published in this spring's Virginia Sports & Entertainment Law Journal.

The article approaches the issue from two perspectives: economic and legal. On the one hand, it argues that there are substantial legal barriers to the NBA imposing an age limit on its draft (David Stern has advocated a minimum age of 20). However, McCann argues, the evidence shows that high schoolers have been successful, both financially and professionally, as NBA players. For instance, McCann finds that salaries for players skipping college are equal or higher than players that attended college. In addition, he notes the substantial economic cost of a player, especially a star player, foregoing four years of professional basketball for college, noting that in some cases the difference could be $100 million.

The most compelling statistic of the article, though, is that only 29 players have entered the NBA draft as high schoolers in the past 25 years. This tends to dispel the myth that the NBA is being overrun by players who have never experienced college. Of those 29, many have become "stars" or "superstars," while less than half are deemed "busts" or have been relegated to "minor league" basketball. Is the problem as bad as critics make it out to be?

I would actually be more interested in seeing an analysis of players who enter the NBA draft at under 20, versus those that are 20 and older. This mirrors the NBA's proposed rule and would give a better statistical sample. The main problem with McCann's analysis is that the majority of high schoolers entering the draft are either (i) superstar quality (i.e., Kobe, Lebron, Garnett) or (ii) players that cannot qualify academically for the NCAA. This lack of test subjects means the statistics may be greatly skewed by the great number of outliers, both at the top and the bottom. Widening the analysis to include players that leave college early, versus those that have gained greater experience before entering the league, could perhaps be more helpful in determining if a problem exists.

In addition, the article tends to downplay the importance of time spent in college. McCann notes that the actual education obtained by players will not greatly enhance their NBA experience, but these are not the most important assets of a college experience. On page 50, McCann notes that college basketball players in fact have less free time than a normal student, meaning that they must learn the valuable skills of time management and balancing multiple tasks. On page 63, McCann lists no benefits for the players who participate in the NCAA postseason tournament. However, possible benefits to these players are clear: (1) the experience of playing in a championship, high pressure setting; (2) numerous playing minutes, rather than sitting on the bench; and (3) a national stage on which to showcase their talent. A prime example of this is Juan Dixon, a four-year player who parlayed a run to the national championship into becoming a first-round draft pick. Dixon was known before the tournament, but not considered a superstar. The national stage allowed him to showcase his skills and he still plays with the NBA's Wizards.

In addition, the article notes the "economic cost" of players who give up four years of professional money to play in college, and thus, have less ability to sign large contracts due to their advanced age. As the article correctly notes, the skills of many players decline after age 30, meaning they will often not be able to sign large contracts. However, I would be interested in comparing the average career length of a player with college experience versus one with none or little. It may be true that players could make more in the short run by skipping college, but perhaps the skills gained in four years on campus translate into a longer overall career. After all, once raw talent is diminished by age, a player can only rely on knowledge and skills. In addition, if as the article states, teams want "teachers" for their younger players, those that have developed the necessary skills may be more sought after. Thus, it may be true that players who attend college in fact earn more money over their entire career than those that go for the quick buck. To use the examples on page 47, Shane Battier has established himself as a role player and most likely will make millions of dollars a season until well into his thirties. However, once Tyson Chandler loses the advantages of youth, will he be of any use to an NBA team?

Though I have small quibbles with the economic questions addressed, the overall quality of the article is first-rate. This is exemplified in the legal section, which gives perhaps the best analysis of relevant labor and antitrust law as it applies to sports. McCann is correct -- the 2nd Circuit's decision in Clarett may well decide the fate of a proposed NBA age limit. As I stated in this earlier post, I believe the collectively-bargained rule could be viewed as including players not yet eligible for the draft. Yes, there is an exclusion, but the exclusion is only temporary, and it does not prevent anyone from playing in the NBA. There is also a strong slippery slope argument -- if the NBA cannot set an age limit at 20, how can it require that players finish high school before they are drafted? There appears to be no need for a high school diploma in the NBA; thus, how does such a requirement not violate antitrust laws? If Freddy Adu can play professional soccer at 14, what is to stop a high school junior from declaring for the draft?

Many of these issues will be resolved over the next few years, and the impact on professional sports could be great. While McCann's article does not definitively answer any of the key questions, it provides a useful framework for analysis and shows that the leagues will face substantial obstacles in limiting the eligibility of potential players.

Iverson Refuses to Play: Allen Iverson refused to play on Sunday for the 76ers, after he was informed that he would not start. Iverson, who changed back into street clothes after attending the team shoot-around, had his normal eloquent excuse for the incident:

    "I'm a starter. I've been a starter here for eight years. I'm not a sixth man," Iverson said after the game. "I'm a starter. I know in this league ... if someone comes back from an injury, if he's a starter he starts. What's the difference? If you're going to cut my time down, cut my time down. It doesn't make any difference. I'm a starter."

Hey, Allen, if it doesn't make any difference, then why not be a man and come off the bench for one game? This is a blatant violation of his contract and he should be heavily sanctioned. He should be suspended without pay and fined $1 million -- it will be reduced on appeal, but the message will be clear: we pay you an exorbitant amount of money to do a job, and so long as you are physically able, you will do that job. Some team will undoubtedly sign Iverson as a free agent this off season, but the real question is why. He has never won a championship and it is clear that he is not interested in trying.

Recruiting Scandal Costs to CU: The University of Colorado has reported that the legal cost of the sex recruiting scandals has reached over $400,000, with the university expecting to spend many hundreds of thousands more over the next months.

Hasek Agrees to Forego Salary: NHL goalie Dominik Hasek has proven that not all athletes are concerned about only money. The Red Wing player, who has been injured since January, has declined to accept any paychecks for the time he has been injured. Hasek, who is out for the rest of the season, will give up about $3 million.

In the wake of the Alex Rodriguez negotiations with the Red Sox, I wonder if the Major League Baseball players' union would allow a player to make a similar arrangement. You would hope yes, but then again, MLBPA rarely seems concerned with what is good for the game.

Real Networks Sues MLB: Real Networks has filed a lawsuit against Major League Baseball, claiming the league violated a contract requiring it to offer Real Networks' media streaming format alongside any other format that the sports organization chooses. The complaint (available here) stems from a contract extension signed in February of this year. The parties first entered into an agreement in 2001. The suit seeks a temporary restraining order to compel MLB's Advanced Media department to use Real Network formats.

Bryant Accuser Ordered to Testify: In a one-sentence order, the Colorado Supreme Court refused to hear an appeal by prosecutors in the Kobe Bryant case, meaning that Bryant's attorneys will be allowed to question the woman in an upcoming closed hearing. Prosecutors had hoped the high court would view the order as violative of Colorado's rape shield law. As I opined in this earlier post, I believe this is the correct ruling in this case.

Thursday, March 11, 2004

Funding of Recruiting Visits: Testifying before Congress today, S. David Berst, the chairman of an NCAA task force reviewing recruiting policies, spelled out numerous proposed changes to NCAA rules. The changes include reducing the allowed visitation time from 48 to 24 hours, prohibiting off-campus entertainment and limiting the amount that could be spent on plane tickets and hotels. Perhaps the most sweeping proposal is one that would eliminate funded recruiting trips. I see this as an exceedingly bad idea. Primarily, it will unfairly burden poorer recruits who cannot afford to take many (or possibly even one) long-distance trip to visit a school. This will result in more recruits choosing a school site-unseen, which could lead to more mistakes necessitating transfers. It could also cause some athletes to choose the pros over a college they have never seen. Limitations on visits are a good policy, but visits need to continue to be funded.

In the News: A quick update of what's been happening in the world of sports and the law.

The FDA has ordered drug companies to quit selling androstenedione unless they can prove it's not dangerous. The supplement, made famous by Mark McGwire's use during his record-setting homerun year, has affects often similar in nature to steroids.

The arbitrator in the Vin Baker case has ruled that Baker can sign with another NBA team while his union grievance is being resolved. This could present quite a conflict, though, if Baker wins his union grievance, which would reinstate his contract with the Celtics. Under this scenario, Baker would then be under contract to two teams. Maybe this is the arbitrator's way of saying Baker has no chance to win his grievance.

Hamilton County has joined the lawsuit against the Cincinnati Bengals and the NFL. The county claims that it voted to approve the construction of Paul Brown Stadium, but that it did so only because the NFL and the Bengals broke federal antitrust laws during negotiations. A similar suit was filed last week in Pittsburgh.

The Sports Business Daily (subscription required) has an excellent summary of the appearance of MLB and the NFL before Congress on Wednesday.

Two trustees at Auburn University have threatened to sue ESPN for statements made on-air by John Saunders last month. The trustees claim defamation for an allegation by Saunders that they were involved in burning down the office of a Tuskegee publisher and civil-rights attorney. In his 'Parting Shot,' Saunders told the audience to "draw your own conclusions" about the February 10th burning of the Tuskegee News, which is published by columnist Paul Davis, an outspoken opponent of the trustees and their power at Auburn.

In trademark news, ESPN's Darren Rovell has a piece on "The Making of a Name and Logo" of the new Charlotte Bobcats.

In tax law news, it turns out that estate taxes are a big part of the reason Jerry Colangelo has decided to sell the Phoenix Suns. The family simply does not have enough money to afford the hefty taxes that would be placed on the inheritance of the hundred-million dollar franchise.

More on Steroids: Senator John McCain has issued an ultimatum to Major League Baseball: devise a plan for steroid testing or Congress will pass legislation. This is the latest act in the government's increasing involvement in the steroid debate, which began with President Bush's State of the Union address. It is good to see a national call for action on this issue, but at least one writer wonders, where were the players during this hearing? Is this like holding an investigation into a crime without calling the eye-witness? A number of senators attacked Donald Fehr and the players' union for condoning drug use in the sport, although Fehr defended baseball's drug policy.

Bertuzzi Suspended for Rest of Season, All of Playoffs: Todd Bertuzzi of the Vancouver Canucks was suspended today for the remainder of the regular season and all of the playoffs for his attack on Colorado's Steve Moore. Bertuzzi's eligibility for next season will be evaluated by NHL Commissioner Gary Bettman later this summer.

Is this penalty sufficient for the act? Or should there also be legal liability, in tort or under the criminal system? Post your comments and weigh in on this debate.

Wednesday, March 10, 2004

Should There be Criminal Liability for On-Field Actions?: At a game Monday between the Colorado Avalanche and the Vancouver Canucks, All-Star forward Todd Bertuzzi skated up from behind Avs player Steve Moore and delivered a violent sucker punch to the side of the head. The attack, in retribution for a hit Moore put on Canucks captain Markus Naslund, broke Moore's neck and gave him a concussion, one of the most serious injuries ever inflicted during a hockey fight.

As expected, the incident has caused considerable uproar, with some commentators calling for a one-year suspension of Bertuzzi. In addition, the Vancouver police has begun an investigation into the attack, and is deciding whether to bring criminal charges against Bertuzzi. But should professional athletes be subject to criminal prosecution for acts during the game?

Clearly, the answer is "not always." Hockey players routinely fight with one another, often leaving with broken noses, bloody lips or missing teeth. A batter hit by a pitch in baseball may charge the mound, trying to land a good punch on the opposing pitcher. A linebacker in football may be suspended for several games for going after an opposing quarterback's head. None of these incidents lead to criminal liability. Traditionally, only when an athlete goes outside the field of play or attacks a non-athlete (Dennis Rodman kicking a cameraman, a player going into the stands), do the local authorities step in. Fighting is seen, rightly or wrongly, as part of the game, and the players assume the risk of the game when they step onto the field.

But at some point, actions have to be seen as crossing the line. Clearly, if a player hacked another repeatedly with his bat or stick, with a clear intention to cause serious injury or death, this would not be seen as part of the game. But how much different is this than mercilessly punching an opponent? The current incident is in the gray area between "part of the game" and criminal activity. In fact, this incident only received attention because of the seriousness of Moore's injury. Had he suffered only a broken nose or bloody lip, would the Vancouver police really be investigating? But, as Vosburg teaches first year law students, you take your victim as you find them. A tortfeasor is responsible for any injuries resulting from a malicious act, no matter how unforeseen.

Hockey, unfortunately, is not a stranger to the idea of criminal liability. In 2002, Boston Bruin Marty McSorley was criminally prosecuted for a violent slash to the face of Vancouver player Donald Brashear. Up until now, McSorley received the harshest punishment in NHL history, a one-year ban, which in effect ended his playing career. In addition, he was convicted of assault in a British Columbia court and given 18 months conditional discharge (similar to probation). The prosecution was seen by many, however, as setting a dangerous precedent of taking disputes off the ice, where they belong.

On one hand, what happens on the field of play should remain on the field of play. Would Bertuzzi have attacked Moore on the street? Absolutely not. It was purely a hockey move -- you hurt one of ours, we hurt you. Leagues have numerous ways of dealing with such incidents, including suspensions without pay, heavy fines, and in some cases, banishment. However, the powerful players unions often fight such penalties, reducing their overall effectiveness, such as when Latrell Sprewell's suspension was reduced from one year after he choked his coach during a practice. In these cases, the legal system could step in and ensure that vicious attacks do not go unpunished under the guise of "part of the game." As players grow stronger and the possibility of serious injury increases, sports and the law should examine the dividing line and devise a system that protects both the integrity of the game, and more importantly, the safety of the players.

Still More on Rushing the Court: In an update to this earlier essay and previous update, Dan Steinberg of the Washington Post writes on the dangers of rushing the court. He adds many more stories of injuries that have occurred, including members of the media being trampled, opposing players being punched and students attempting to get on the floor tripping and being crushed by the "human stampede."

Schools have taken various measures to try and either prevent the practice, or if that is impossible, to make it safer. Some schools user barriers such as bicycle racks, chains, or police barriers, but other schools have taken these down because they do not prevent the onslaught, only making it more dangerous. Some schools, such as the University of Florida, have taken the step I proposed, and begun disciplining students that run onto the floor. Students can be arrested and risk losing their tickets for the remainder of the season.

Also, what role does the media play in this? Athletic officials at some schools claim that students run onto the court only to get on television, and if stations such as ESPN stopped showing the students on the court, it would not continue. ESPN claims that it is not responsible for creating the postgame scenes, but I don't think this tells the entire story. Sports broadcasters also are not responsible for creating streakers or single fans that run onto the field of play, but they have a gentlemen's agreement to turn their cameras away to discourage the practice.

Rushing the court, however, is different in two other ways. One, unlike the solitary streaker, it is nearly impossible to make out any one student in the mob scenes. A student is much more likely to be shown in the stands during the game than in a mob at center court afterwards. This leads in to the second point, which is that students do not do this to get on television. The reasons for rushing the court, by and large, are to celebrate with the team and feel like you are part of the action. Many coaches like to describe their student sections as the "6th Man," and students want to celebrate on "their" home floor. This being said, a number of students have probably gotten the idea from watching other students rush the floor on ESPN or other college basketball networks, so the influence of the media should not be discounted.

The crux of this article, though, is that people have begun to get hurt. As I pointed out earlier, this could result in legal liability for universities, so as the problem receives greater media attention, expect more schools and arenas to begin cracking down on the practice and for "rushing the court" to become a part of history.

Thank you to reader John Stoner, a fellow Duke alum, for the pointer.

Tuesday, March 9, 2004

Baseball Fans Not Staying Away: The New York Times Murray Chase has an article on how there has been a surge of ticket sales in major league baseball.

    What's wrong with these people who paid for tickets? Don't they know they should be boycotting baseball games? Baseball is full of cheaters, isn't it? Isn't that what the antisteroids squad would have you believe? But whatever the truth, fans all over the country, not just in Florida, are demonstrating that they don't care if some players have bulked up artificially.

This is yet another example that fans care much less about what players do on their own time and much more about what they do on the field. Major League Baseball lost its greatest number of fans, not because of any off-the-field scandal, after the strike in 1994, which took players off the field and cancelled the World Series. Fans have often responded to criminal allegations with cheers and not boos. The sports world has recently witnessed this phenomenon in the context of Kobe Bryant, who has been resoundly cheered in many arenas. Ray Lewis was charged with manslaughter, but Ravens fans continue to buy his jersey by the hundreds. Numerous professional athletes have been suspended for drug abuse, sanctioned for domestic battery and charged with driving under the influence. Does this matter? Not so long as the player continues to hit home runs, hit buzzer beaters and rush for 100 yards a game.

By and large, fans see the uniform and not the person underneath. They cheer #8 because of his spectacular plays, but do not care about what Kobe Bryant does in his spare time. They cheer the team to the victory, while looking past the fact that human beings with human problems comprise the victors. Now it seems that fans are willing to accept steroid use, so long as their heroes continue to hit monstrous home runs. This is a disturbing trend in sports, and ultimately, the victims will be the athletes themselves. Steroid abuse has been shown to have horrible consequences, even leading to serious illness and death, and the negative effects of newer drugs are not even known. Players may be leveraging their long-term health for current glory, and fans are willing accomplices by turning a blind eye to such abuse.

It is unclear how many professional athletes take performance-enhancing drugs. So long as the respective players unions continue to stonewall proposals for drug testing, no one will know the true extent of the problem. For the sake of their own members, unions should work closely with the leagues and health professionals to devise a system of drug testing, and perhaps more importantly, drug counseling. Players found to be addicted should be allowed counseling and treatment, all confidentially and all while they continue to play. No public stigmatization.embarrassmentsment. Only if the drug use continues should players be asked to take time off from the game.

Fans use sports as a diversion from real life, and because of this, tend to glorify the athletes and overlook their problems. However, while the fans, right or wrong, can afford to ignore this problem, the athletes and their representatives cannot. For the long-term good of both the players and the game, all of the interested parties should step forward to put an end to this epidemic.

News Update: Some quick hits on things you might have missed:

The Vin Baker arbitration hearing was held on Monday and the decision is expected on Thursday.

The NFL players union asked an arbitrator Tuesday to make Terrell Owens a free agent, claiming San Francisco didn't have the rights to trade the wide receiver to Baltimore. The arbitrator is Stephen Burbank of Penn Law School. You can read a previous rant here.

The NBA players union is not happy about a drug test that Damon Stoudamire took in an effort to clear his name. Dan Wasserman, a union spokesman, said: "In general we don't think it's a good idea for players to engage in freelance drug testing. We have procedures in place that should be adhered to." I understand the problems with unsupervised drug testing, but it seems that in the current times, players unions should be encouraging drug tests in order to ensure both the health and competitive balance for their members. This is the time for professional athletes to come clean-- literally and figuratively. The ball is in their court.

New Greek Prime Minister Costas Karamanlis “plans to take control of preparations for the 2004 Olympics, naming himself Culture Minister in his new cabinet.” Karamanlis has said that other than political appointees, he will not “change any key personnel involved in Olympic preparations." Some experts fear that the election of the new conservative Prime Minister could cause problems in the Olympic preparations, especially if the mostly socialist workers strike in response to government policies.

Of Asterisks and Baseball Records: Allen Barra has a fascinating article today about the history of the asterisk on Roger Maris's single-season home run record. As it turns out, there was never an asterisk in the record book on Maris's record, mostly because there is no "official" baseball record book (only books published by independent sources, such as The Sporting News). Over time, though, the myth of the asterisk grew and as Bob Costas stated, "The asterisk was real because the majority of fans believed it was. When they stopped believing, it vanished." A very interesting read.

Monday, March 8, 2004

More on Rushing the Court: Thank you to all of the readers that have responded to yesterday's post -- Legal Implications of Rushing the Court. I have done some additional research on tort law in this area. It appears settled that spectators at sporting events assume the risk of injuries that are related to the sport (i.e., foul ball at a baseball game, stray golf ball or hockey puck). However, as at least one California court has held, the owner of a sports facility has a duty to use due care to remove risks that are not inherent in the sport. Morgan v. Fuji Country USA, 40 Cal.Rptr.2d 249 (1995). Since rushing the court is definitively not part of the sport, it seems that arena management would be liable if a spectator was injured by a crowd rushing the court.

Reader Lewis Shaw also pointed out these two relevant cases. A Massachusetts court has also held that the owner of a sporting venue can be held liable for "gross negligence." Zavras v. Capeway, 687 N.E.2d 1263 (1997). In the university context, the West Virginia Supreme Court has ruled that if "a state university provides recreational activities to its students, it fulfills its educational mission and performs a public service, and thus owes duty of due care to its students when it encourages them to participate in the sport." Kyriazis v. University of West Virginia, 450 S.E.2d 649 (1994).

Editorial on Steroids in Sports: I have not yet contributed to the ongoing conversation about steroids and sports, especially baseball. For now, you can read fantastic writing at Only Baseball Matters and Baseball Musings. In addition, Joe Biden, who authored the 1990 law that made steroid trafficking illegal, writes in USA Today that the players' unions in the professional leagues must step up and take strong stances against drug use.

Editorial on Steroids in Sports: I have not yet contributed to the ongoing conversation about steroids and sports, especially baseball. For now, you can read fantastic writing at Only Baseball Matters and Baseball Musings. In addition, Joe Biden, who authored the 1990 law that made steroid trafficking illegal, writes in USA Today that the players' unions in the professional leagues must step up and take strong stances against drug use.

More on Oregon Arena Bankruptcy: In an update to this earlier post, the Oregonian has more on the Oregon Arena bankruptcy. The article states that the company was profitable up until last year, when earnings dropped by 16 percent.

Union to Fight Owens Trade: In the continuing saga of the world's best-paid three year-old, the NFL Player's Association is seeking to rescind the trade of Terrell Owens to the Baltimore Ravens and have him declared a free agent. And why shouldn't the trade be rescinded? After all, Owens did not get exactly what he wants. And it is not his fault that he missed the deadline that every other player that wanted to be a free agent met. He is a big important person -- he cannot be expected to do what everyone else does and play for the team to which he is under contract.

I think it says a lot that the 49ers gave up arguably the best receiver in the game for only a 2nd round draft pick. A team should have offered them a pack of Wrigley's Spearmint gum -- they might have jumped at the chance to get rid of this distraction.

Orioles Increasing DC Presence: In an effort to increase their presence in the Washington, DC area, the Baltimore Orioles have hired a public relations firm and have plans to spend $1 million in a new ad campaign. By doing this, the Orioles hope to prevent Major League Baseball from moving a team into the DC area by proving that it would severely impact their fan base. Orioles owner Peter Angelos has been a vocal opponent of any such plans, saying it would have a severe impact on his team.

Sunday, March 7, 2004

Legal Implications of Rushing the Court: College basketball season always means great games, come-from-behind wins and upsets. Following those upsets and great games, intense student fans often try and become part of the moment and the team by leaving the stands and rushing onto the court. A number of prominent coaches, including Louisville's Rick Pitino, have complained about the practice, saying they often feel in danger of injury from the onslaught of fans. Despite this threat, however, few schools have taken measures to curtail the wave of students at the end of the game.

Unfortunately, it may take a serious injury or other tragedy for schools to crack down on students leaving the stands. At many schools, fans must climb over members of the press and race past non-student fans to get down on court level. On a number of broadcasts, prominent ESPN announcer Dick Vitale has admitted his fear at the end of games, saying that the students "came right over him." On the floor, opposing coaches and teams often have trouble dodging the mob and getting into the locker room. How long will it take before a rowdy fan incites an emotional player, causing a fight that could turn into a melee? Or before a member of the media is trampled by a rushing crowd, causing serious injury?

In this case, could the host school be held liable for the injuries? I would think that the school and the arena management company, if different, could both possibly be held liable for the injuries. Arena management has the duty to provide a safe environment for all players and patrons, before, during and after the game. At professional sporting events, such as the World Series, extra security is brought in to ensure that fans remain off the field during any celebrations. There is no reason why college arenas could not provide the same level of protection. Students rushing the court could have their tickets revoked for the remainder of the year, or they could be subject to disciplinary action by the university. Yes, the punishment may be harsh, but after it was imposed on a group of students, rushing the court would no longer be considered by student bodies.

There are other alternatives, especially in college venues. At many colleges, the coach has a considerable amount of influence on their student sections. Earlier this year, Maryland coach Gary Williams gave a speech to his students, asking them to refrain from yelling obscene chants and wearing t-shirts with profanity. If Williams, or a coach with similar stature, asked his students not to rush the court, most if not all fans would comply. Those that did not could be punished. At Duke's Cameron Indoor Stadium, stadium officials use a simple system to keep students in the stands. At the buzzer, a rope is quickly stretched across both sides of the student section. While seemingly a small deterrent, the rope holds the students back, allowing both teams to shake hands and leave the floor. Only at this time can students come onto the floor (which at Duke is the way most students exit). However, the measure prevents the greatest danger, the unthinking mob rush onto the floor.

Universities have incredible liability at stake -- anyone injured in such an incident will not sue the student, because the university surely has "deeper pockets." In order to protect themselves, schools and arenas should take the steps necessary to keep students where fans belong -- off the court and in the stands. It should not take a grave injury for colleges to act -- if the schools act now, injuries can be avoided and everyone can celebrate in a safe atmosphere.

Update: Skip Sauer informs me that such an injury recently occurred at a high school basketball game in Tucson. This highlights the dangers of rushing the court and the urgent need for increased security measures. Best wishes for the recovery of this student and for procedures that will prevent similar avoidable tragedies in the future.

Update For legal precedent on related issues, see this post. For more examples of injuries that have already occurred and what some schools are doing, see this post.

High Schoolers Headed to NFL: Six high school athletes and one junior college player have declared for the NFL draft. Along with Maurice Clarett and Mike Williams, this makes only nine players that have declared for early entry in this year's NFL draft. For those who predicted doom for the NFL in the wake of the Clarett decision, this comes as good news. The success of the high schoolers in the draft will most likely have a great impact on the decisions of future high schoolers. None of the players is projected as one of the top-25 at their position.

Friday, March 5, 2004

Pittsburgh Man Sues NFL: In a similar suit to one filed last month in Cincinnati, a Pittsburgh lawyer is representing a class in a $200 million lawsuit against the NFL. The lawyer, who just finished representing four Steelers season ticket holders in a suit claiming the team tricked them into taking poorer seats, claims that NFL antitrust violations have enabled teams to extract huge subsidies from governments to build new stadiums. I have not read the complaint (if anyone can find a copy, I would love to see it), but I assume that most of the $200 million is a claim for punitive damages, since compensatory damages would probably be about $10 per taxpayer.

The attorney states:

    The NFL is a monopoly. And as we lay out in the complaint, because of the structure and the way they operate, they are able to extract from communities these commercially unreasonable (stadium) leases.

I do not know a lot about antitrust law but I do know that cities have been saying "no" to professional sports teams for years and these cities have not ceased to exist. Currently, Minneapolis/St. Paul is making the Twins cough up more private funds for a new ballpark. Pac Bell Park in San Francisco and Gillette Stadium in New England (Patriots) were both built entirely by private funds. It seems the lawyer's beef (since it seems apparent the plaintiff is a puppet) is with the city that agreed to pay the money and not with the NFL. In any case, it certainly looks like this lawyer is becoming an expert in "sports law."

Update: As expected the NFL has responded to the suit, calling it baseless.

Arena Bondholders Challenge Bankruptcy: Bondholders in the Oregon Arena are planning to challenge the company's bankruptcy declaration, claiming that the company has no plans to reorganize. Instead, the investors claim, the arena's owner, Paul Allen, wants to buy back the investments at a reduced rate. Allen owns the arena as part of his ownership of the Portland TrailBlazers.

The next hearing in the case is set for March 22.

BALCO Lawyers Seek Probe of Media Leaks: From FindLaw

Colorado Tightens Recruiting: In response to the allegations of sex parties and strip clubs that has plagued the University of Colorado football team, the university has formulated new stringent recruiting guidelines, including a bar on visiting bars or strip clubs [this was allowed before?], an earlier curfew and a limit of one night per visit, down from two.

You can read a break-down of the guidelines here.

Baker Case to Be Heard Monday: An arbitrator will hear the case of former Celtic Vin Baker on Monday, after both sides filed briefs in the case today. Baker is challenging the NBA's statement, released Monday, that prevents Baker from signing with any other team before the resolution of his grievance against the Celtics. The arbitrator could take up to several days to issue his ruling in the case.

You can read more on the Baker case here.

Bloom Signs Endorsement Deals: Olympic skier and Colorado football player Jeremy Bloom has signed two endorsement deals that will fund his skiing career until the Olympics in 2006. Bloom, as I discussed here and here, Bloom is openly challenging the NCAA's rules that prevent an athlete from receiving endorsements for a different sport and participating as an amateur as another. Bloom wants to play college football, a sport in which he has never been paid, but continue skiing, a sport in which athletes depend on endorsements to compete.

The NCAA now has no choice but to deal with this issue. It is expected that the organization will rule Bloom ineligible, which may prompt Bloom to file a legal challenge. Unless the NCAA changes its bylaws, there is no question that Bloom is in violation.

The question that remains unanswered, though, is how was Bloom recruited to Colorado?

Thursday, March 4, 2004

Eisner Resigns as Chairman, Stays as CEO: Following a strong vote of no confidence, Michael Eisner has resigned as Chairman of the Board of Disney, though he will remain the company's Chief Executive. Though running unopposed for Chairman, 43% of shareholders withheld their votes, a stronger-than-expected opposition to the embattled executive. In addition, the naming of George Mitchell as the new Chairman has drawn criticism and claims that the Board is no more independent from Eisner that it was with him as its leader. Mitchell is a long-time Disney board member and supporter of Eisner.

The Orlando Sentinel has several articles about Eisner, including how he was idolized only 10 years ago and that his prime mistake was underestimating Roy Disney, who has led this charge.

Wednesday, March 3, 2004

The Perfect League?: The Sports Economist posts his idea for an ideal professional league. The list is an intriguing one and makes a number of good points. I have a few responses and ideas of my own. Prof. Sauer writes:

    [1] The league must be organized such that any team could win a championship, not every year, but at some point over the long run. This perception must exist, and be well founded.

    [4] Sloth and indifference must be penalized.

    [5] Insuring that the first principle is met requires significant revenue sharing in a league with teams of widely differing profit potential (see the NFL). But extensive revenue sharing promotes sloth and indifference to winning (see the NFL, again), so it must be tempered.

I agree that there must be revenue sharing, especially in the leagues other than the NFL that have such a discrepancy in local television revenues, but it must be revenue sharing with a clear purpose. Like Prof. Sauer says, the goal should be increasing competition so that all teams have a legitimate shot at winning. In order to do this, there must be regulations that ensure the money is used on the team, and not to line the owner's pockets. This is why leagues should not only have salary caps, but also salary floors. Revenue sharing would ensure that all teams will be able to meet the salary floor, while the cap would control outrageous spending and the ability of certain teams to collect All-World teams.

Prof. Sauer's suggestion for how to prevent laziness is a "trap-door," in which the worst teams from each league would be moved to a lower division, and the best teams from the lower division move up, as is done in some international soccer leagues. I think this would be problematic, from both a practical and a fan perspective. First, teams and players will never agree to a system in which one bad league could move them to a "second-tier" league. There are just too many egos for that. However, I concede that this is an ideal, so I also pose a problem for the overall sport. Having such a trap-door would not allow teams to quickly rebound and would eliminate the "worst-to-first" Cinderella stories such as the 1991 Braves and Twins and the 2002 Angels. Dropping the worst teams to a lower division would arguably hurt them more, as their free agents may bolt, other free agents will not sign with them and fans could desert a "minor league" team.

Finally, Prof. Sauer says:

    [3] Ambition and success should not be heavily taxed.

I agree that ambition and success should not be heavily taxed, but only the proper kinds of ambition and success. Ambition and success does not have to mean "spend the most." It can, and should, mean, "be the wisest in spending the money you have." I applaud owners that will do everything within the rules to win, but the system should place more controls on ambition in order to re-define success.

I, too, would be interested in hearing any comments from readers on this idea. It certainly is fun to dream.

Bryant Case and Rape Shield Law: The judge in the Kobe Bryant criminal case has ruled that Bryant's accuser must testify in a close hearing on March 24-25. In addition, the judge has ruled that the defense can question the woman about her relevant sex history, including the her sexual activity in the days surrounding the incident. The prosecution says the ruling goes against Colorado's rape shield law, which makes the sexual history of the victim irrelevant. The prosecution plans to appeal the ruling to the Colorado Supreme Court.

Contrary to the prosecution, I feel this is the proper ruling in this case. The rape shield law is not absolute -- if the defense convinces the judge that the information could be relevant, the judge should allow the defendant to make the best defense possible. The rape shield laws serve an important public policy, encouraging victims to report incidents of rape and preventing possibly prejudicial information from influencing the jury. However, we must not forget that our system believes in innocence until guilt is proven and the right of defendants to a full defense. If the information is deemed relevant and the judge exercises significant control to ensure that the victim's rights are protected, waiving the rape shield law represents the best method to ensure a fair trial for both sides.

For more, read this earlier post from Alas, a Blog.

Tuesday, March 2, 2004

Arbitration from a Player's Perspective: Pittsburgh Pirates shortstop Jack Wilson, in the first of his weekly columns, discusses the salary arbitration process and his reasons for going to a hearing with the team (which he won). For more on the arbitration process, read this earlier post.

Looking for a Job in Sports Law?: From the Sports Business Daily:

    USOC Seeks Assistant General Counsel

    The United States Olympic Committee seeks an Assistant General Counsel to provide legal counsel with respect to the commercial activities of the USOC. Requires undergraduate and Juris Doctor degrees. Admitted to practice in Colorado or ability to obtain membership in reasonable time. Prior experience: corporate governance; negotiation and drafting contracts; licensing; trademark, copyright, trade secrets, or individual publicity rights; or litigation of contractual or commercial disputes. Prior experience representing amateur or professional sports organizations beneficial. Please send resume to Human Resources, U.S. Olympic Committee, One Olympic Plaza, Colorado Springs, CO 80909. Fax to 719-632-2884 or email at EOE.

Not Part of the Deal: Following the Yankees release of Aaron Boone, a number of writers have analyzed some of the common clauses in baseball contracts. Jon Fogg of the Washington Times lists a number of the prohibited activities, including croquet, lawn darts, bungee jumping and gardening as some of the off-limits activities. Also included in most contracts is a prohibition on basketball, which doomed Boone. He was injured in a pick-up basketball game last month, a game which violated his contract and allowed the team to release him, opening a slot for Alex Rodriguez. While the clauses do not outright void the contracts, violating them changes the agreement from guaranteed to non-guaranteed, meaning the team does not have to pay the player, or keep them on the roster, if they are injured. The clauses, obviously, protect the teams' million-dollar investments from injuries not related to their job.

Other examples of players that have been injured doing prohibited activities include Ron Gant, who was injured in a dirt-bike accident and released from the Braves, Jay Williams, who recently negotiated a buy-out with the Chicago Bulls following a motorcycle accident, and Jeff Kent, who was injured while riding a motorcycle (he said he was "washing his truck). Kent was lucky enough to keep his job, however, he was not re-signed by the Giants at the end of the season.

Monday, March 1, 2004

BCS Announces Changes: The Bowl Championship Series has announced a few changes to be implemented over the next few seasons, including greater revenue sharing with schools from conferences other than the "Big Six" (ACC, Big East, Big 10, Big 12, Pac 10, SEC) and the addition of a fifth BCS game. The moves were made in an attempt to prevent litigation by non-Big Six schools over the distribution of money in college football.

But, as Dennis Dodd writes, Does a 5th BCS Bowl Really Matter? And, as at least two ESPN football experts write, these changes don't solve the bigger problems with college football: namely, the lack of a true play-off.

I am not the only person to write this, but I truly believe that a college football play-off will happen in the not-too-distant future. In my system, the top eight teams are seeded, 1 to 8. Of the (now 5) BCS games, one will have the national championship, two will have semi-finals and two will have quarter-finals. The other 2 quarterfinal games will go to top-tier bowls that are not selected as the 5th BCS bowl (the top 3 contenders seem to be the Cotton, Peach and Holiday). The other bowls (i.e. Capital One, Gator, Independence, Alamo, Outback, Liberty, Sun, Music City) will continue to host games that are just as meaningful as they are now.

The first round of the play-off would be the weekend before Christmas. The semi-finals would be on New Year's Day (returning some importance to that day) and finally, the championship would be one week later, probably on a Saturday night. The schedule would be crafted so as not to conflict with the NFL play-offs, and players would be forced to play one extra week. In addition, many schools do not start classes until the second or third week of January, meaning that many teams may not even miss class.

So, we have seven bowl games that would all have huge revenues, because all would be incredibly meaningful. The other bowl games would lose no prestige off what they have now. And fans would have what they crave- a true national champion.