Friday, March 31, 2006

NBA: No Men in Tights

I'm not sure a comment is even needed:
League and team sources have told that the NBA, starting next season, intends to ban the tights sported at various points this season by several players, including three MVP candidates: Kobe Bryant, LeBron James and Dwyane Wade.
Although NBA officials are not publicly commenting on the issue, sources say that the league simply does not like the look of players wearing visible hose. It's believed that the league office, which already has regulations in place to curtail short lengths, can unilaterally outlaw tights by simply amending its uniform code before the 2006-07 season.

Sources say that the NBA informed its 30 teams at last month's competition committee meeting in Houston that tights would be banned immediately after All-Star Weekend. But the league wound up holding off on that ban, perhaps to avoid a new controversy after the initial furor sparked by the off-court dress code faded quickly and quietly.

Players who wish to wear tights are required to send the league a written request from a team doctor detailing a "medical need" for the leggings. That's because the league, according to sources, believes that some players are merely wearing them because they like the look.

From Darren Rovell and Marc Stein, "League Would Amend Uniform Code to Ban Tights,", Mar. 30, 2006.
I do know that I will have to add discussion of this proposed policy to the draft of my forthcoming law review article, the title of which will tell you how I feel about it: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor and Employment Law __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network ("SSRN") -- the download is free, and all it requires is an SSRN account, which is itself free and which provides you with access to thousands of interesting articles, papers, and drafts.

Thanks to one of my students, Jason Marsh, for passing this inane story along.

Nigerian Soccer Referees Can Take Bribes But Must Remain Neutral

From ESPN:
    Football referees in Nigeria can take bribes from clubs but should not allow them to influence their decisions on the pitch, a football official said on Friday. Fanny Amun, acting Secretary-General of the Nigerian Football Association, said bribery was common in the Nigerian game.

    "We know match officials are offered money or anything to influence matches and they can accept it," Amun told Reuters on Friday. Amun first made the statement earlier in the week to a football seminar in the capital Abuja, prompting protests from other officials.

    "Referees should only pretend to fall for the bait, but make sure the result doesn't favour (sic) those offering the bribe," Amun said.
The response from Capitol Hill: Why didn't we think of this?

Major League Soccer Turns Ten

The Kansas City Star points out a coming birthday: Major League Soccer is about to turn 10. The league has certainly evolved: from the massive attendance at Foxboro for New England Revolution games in the early years, coupled with simultaneous fears of an early demise, to a more stable but possibly less ambitious league. Unlike earlier American soccer incarnations like the NASL, MLS does not seem to be aiming for MLB, the NFL, or the NBA. Instead, it is content to be smaller, different, but lasting.

The sports law issues MLS has brought us over the last decade are memorable. Organized as a single Limited Liability Company (LLC) with “investor-owners”, the MLS presented a credible case for application of the so-called “single-entity defense” to a Sherman Act §1 violation. In a nutshell, that defense argues that a single entity is incapable of “conspiring, combining, or contracting” with itself in a manner that offends the antitrust laws. In Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. 2002), the First Circuit cast doubt on MLS’s single-entity status. More recently, MLS has pioneered the commercialization of franchise names, as Mike discussed here.

Ex-Con Denies Giving Bonds Steroids

Victor Conte, founder of BALCO, speaking on the steps of his home a few hours after being released from prison, denies he supplied Barry Bonds with steroids. Obviously, with witnesses like that behind Bonds, we might as well call off the George Mitchell-led steroids probe right now.

New Study on College Sports Finances and NCAA Tax Exemption

The Indianapolis Star's Mark Alesia--arguably the nation's premiere reporter on NCAA issues--has outdone himself in his latest feature: a massive study on how university general funds and students contribute to athletic departments and the interplay of those contributions with the NCAA's tax exempt status as a non-profit entity (Alesia, "Colleges Play, Public Pays," Indianapolis Star, 3/30/2006; Alesia also built an NCAA Financial Reports Database from the story). The NCAA qualifies for the non-profit exemption because it claims to be "organized and operated exclusively for educational purposes." Earlier this month, we discussed a story by Alesia on how the U.S. House and Ways Committee has begun a quiet investigation into whether the NCAA, conferences, and school athletic departments have misused their tax exempt status as non-profit, educational entities (3/14/2006). For this story, Alesia analyzed the 2004-05 athletic budgets of 164 of the nation's 215 biggest public schools. He was assisted by Matt Moore, Mark Nichols, Chris Phillips, Ole Morten Orset, Ben Thomas, Jimmy Trodglen, and Kandra Branam.

So what did Alesia find? First off, he found that athletic departments at taxpayer-funded universities nationwide receive more than $1 billion in student fees and general school funds and services, and that without such outside funding, fewer than 10 percent of athletic departments would have been able to support themselves with ticket sales, television contracts and other revenue-generating sports sources. In fact, most would have lost more than $5 million.

Here are the top the top 10 Moneymaking State Schools and then the Final 4 Schools:

TOP 10 MONEYMAKERS (using adjusted bottom line)





% of operating





revenue from







outside support

Bottom line

bottom line

































Texas A&M
































Kansas State








Virginia Tech









% from




Student fees

Total athletic revenue



government support

(Per student)

(in millions)


Louisiana State







$1.3 million

$2.4 million






$2.3 million




George Mason

$1.6 million

$7.5 million




Alesia and his staff then studied the effect of taxpayers indirectly subsidizing athletic departments through the tax-exemption. He found that the exemption particularly benefits big schools, which receive up to 40 percent of their athletic revenue from donations, most of which are tax-deductible. At Indiana University, for example, donations constitute 21 percent of revenue; at Purdue, 27 percent. And keep in mind, all of the TV money the NCAA and its schools receive go untaxed--we're talking about hundreds of millions of untaxed dollars there.

Expectedly, there are serious criticisms of this arrangement in light of how big-time college sports appear far more focused on entertainment than education. This is particularly troubling, Alesia notes, considering rising tuition and stagnant state support for higher education. Economist Andrew Zimbalist of Smith College tells Alesia, "The subsidies grossly overestimate the role of intercollegiate athletics in higher education. This should be something that absorbs a much smaller share of outside resources." Moreover, as noted by Professor Rodney Fort of Washington State, "The simple fact is that the athletic department enjoys subsidies in many areas where other departments at the university must pay explicitly."

There is much, much more to this story, and I strongly encourage you to read it, as it is a masterpiece in the empirical research of sports economics. Part II of this story is being published on the front page of Saturday's Indianapolis Star, and it will soon be available on-line.

I also encourage you to check out Alesia's huge database on NCAA Financial Reports. It is the the most detailed, publicly available database of college athletic department financial information ever assembled. I just spent quite a bit of time on it and look forward to spending more.

Thursday, March 30, 2006

Daryl Morey, Houston Rockets GM-to-be: Statistics and the NBA

A congratulations is in order to my good friend Daryl Morey, who has been hired by the Houston Rockets as Assistant General Manager with the understanding that he will become the team's General Manager following the 2006-07 NBA Season. Since 2002, Daryl, who's 32 years old, has been the Celtics' senior vice president of operations and information, and essentially the team's statistical and business guru. A graduate of Northwestern University with an MBA from the Massachusetts Institute of Technology Sloan School of Business, he has been an adjunct professor at MIT Solan in recent years, teaching "Analytical Sports Management" with Bill James as guest instructor. Daryl and I have had some lively arguments about the wisdom of high school players entering the NBA and other issues pertaining to the league. Although we sometimes part ways, I can safely say that the Celtics' loss is the Rockets' gain. Good luck to him and the Rockets. They just hired a really smart, approachable guy with a lot of common sense to eventually run their team.

For reaction from Celtics' fans, check out one of my favorite blogs, Jeff Clark's Celtics Blog.

How Do I get a Job in Sports Law? (Continued)

Mike had a good post on this question here, but while I have (access to) the floor I might as well add my two cents. This is one of my topics the first day of sports law class, because I like to get it over with. I like to dispel the notion that taking sports law equals a job in sports law; and to let students know up front that Sports Law, as I teach it at least, is not a “show and tell” career development course, but a substantively challenging and thorough academic experience. The first thing I tell my students is that if I really had the answer to the question of how to get the coolest sports law job in the world (NFL commissioner, of course), I’d be off doing that job instead of teaching the class. That’s meant to be a little tongue in cheek. But my own insight is a bit limited, since I came to sports law in 2002 by way of teaching and academic (or academic-y) writing. But I do have some thoughts, formed after watching students try (and, in some cases, succeed) in getting wonderful sports industry jobs. My comments below also incorporate lessons offered from practitioners in the field. (I also have the good fortune of being on a faculty with a senior professor – and former dean – who was in a past life a certified NFL player agent, so I have the luxury of being able to point students towards his office if they aren’t satisfied with my advice).

(1) Think beyond Jerry Maguire: Most students think that sports law means serving as a lawyer-agent for a player. That is a tough, tough business; it’s ruthlessly competitive (the vast majority of “agents” don’t have clients!), dominated by a few big firms, corrupting of one’s ethical principles, and not all that easy a way of making a living. However, there are numerous other wonderful and interesting sports law jobs out there. Some that I think are most promising are NCAA compliance officers (increasingly holders of J.D.s) and public school district lawyers (I have an uncle who does this work and is probably involved in more sports law issues than any lawyer I know).

(2) Be flexible, opportunistic, and aggressive: Sports law jobs are highly sought after, and sometimes arise through luck, fortune and circumstance. You might have a next door neighbor with a kid who happens to be a 15-year-old left-handed power-hitting catcher. Be nice, because that kid might need an agent some day. You might be offered the chance to work for a team at a lot less money than you’d make as a lawyer at a big firm. You have to be able to quickly commit to such opportunities, should they arise. Persistence of course will pay, as it always does. Those who are committed to sports law can usually find a way; it’s folks with more casual commitments (rather than true passion) that usually end up doing something less interesting.

(3) Take these classes: In law school, if you have the chance, you should take Antitrust, Drafting (as many drafting classes as are offered), Negotiation, Arbitration, Labor Law, Intellectual Property (including trademark and copyright), Federal Income Tax, Estate Planning/Wills/Estate Tax, Immigration Law (especially for those interested in baseball and basketball work) and Sports Law. Some people might add other subjects to the list, but these are the ones I think tend to be most useful.

(4) Never eat lunch alone: This is generally a good strategy for getting a job. Networking matters, as painful as it sometimes is. I would add that it always pays to treat people in a kind and decent fashion, even if you don’t think they have something to offer you. You never know when the person sitting next to you on a plane is the GM of a team bumped from his first class seat; that person might be able to give you advice, or a job, but certainly won’t if you’re rude, condescending, or shy.

Law Schools with Sports Law Profs

Each year, the AALS (Association of American Law Schools) releases the “AALS Directory of Law Schools.” Law profs self-identify by subject interest, and at the back of the book, there are lists divided by subject. Some readers (future law students?) might be interested in which law schools have self-identified “sports law profs” as tenured or tenure-track faculty members (at many schools, Sports Law is taught by an Adjunct Professor – meaning, someone who has a full-time job other than teaching law). In approximate alphabetical order, here are the schools with sports law profs (where schools have more than one sports law prof, I have indicated that):

Akron; Alabama; Arkansas (2 profs); Barry; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Cincinnati; Cooley; UConn; Depaul (2 profs);University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Illinois; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola – LA; Marquette (3 profs); Maryland; Miami; Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); New England; New Mexico; North Dakota; Nova Southastern; NYU; UNC; Nebraska; Northeastern; Northern Kentucky (2 profs); Ohio Northern; Ohio State; Oklahoma; Pepperdine; Puerto Rico; Richmond; St. John’s; Saint Louis; St. Thomas (MN); Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn; Western New England; West Virginia; Whittier; Widener (2 profs); Willamette; Yale.

A few caveats. First, this list is “self-identified” sports law professors: The fact that an academic believes s/he is an expert in a subject may not always mean s/he actually is (there are a few self-identified sports law professors I would not consider to be sports law professors, in that they have neither published anything about sports law nor possess significant sports law practice experience, but out of politeness I will not name names). There may also be some faculty members who are sports law profs in a broad sense (for example, who serve as NCAA Faculty Athletic Representatives for their universities) but who do not self-identify as such. Second, the number of professors in a subject area may not be the same thing as number of courses offered or depth of coverage. Third, this list was based on an April 2005 survey, so it may not accurately reflect recent hires or recent departures (e.g., Illinois’s sole sports law prof, Stephen Ross, is leaving for Penn State). Fourth, although I am not certain of this, the AALS directory probably only includes law schools that are fee-paying members of AALS (some aren’t).

A Few Good Topics

MORE BONDS: Professor Howard Wasserman of Florida International University College of Law has two excellent columns on FindLaw concerning Barry Bonds and the steroid controversy (3/24/2006; 3/27/2006). A third colum, discussing Bonds' lawsuit and its First Amendment problems, will be on FindLaw on Monday. As you may remember, Howard guest blogged on Sports Law Blog last month and wrote a fascinating piece on the constitutional protection of "sport speech" or "cheering speech" (2/2/2006).

INTERNATIONAL AGENCY BIAS FOR HOMETOWN ATHLETES: University of Massachusetts sports management student Sokki Chen (who will be interning at the International Paralympic Committee in Germany this summer) alerts me to a story from Switzerland regarding a Swiss court's apparently favorable treatment of Swiss cyclist Danilo Hondo (Bradley S. Klapper, "Confusion After Swiss Court Suspends Two-Year Doping Ban," Associated Press, 3/22/2006). Hondo had been suspended by the Swiss-based Court of Arbitration for Sport ("CAS") after twice testing positive for the stimulant carphedon. He challenged his ban through a provision in CAS statutes that allows residents of Switzerland--and only resisdents of Switzerland--to appeal to a Swiss provincial court, which lifted Hondo's ban. In glaring contrast, non-Swiss residents can only challenge CAS rulings at the Federal Tribunal - Switzerland's highest court - and only if the case was run "manifestly contrary to the general principles of law." In other words, there's some hometown cooking going on at the CAS, which is supposed to be an independent international agency for the settlement of sports disputes.

DETRIMENTAL RELIANCE AND COLLEGE COACHING JOBS: Mississippi College School of Law student Lance Mixon passes along a story concerning a recent lawsuit filed by former University of Miami assistant head football coach Art Kehoe--who served on the coaching staff for 25 years until he was fired Jan. 2--against the school. (Susan Miller Degnan, "Kehoe Files Suit vs UM," Miami Herald, 3/21/2006). Kehoe, who is now as assistant coach at the University of Mississippi, claims that he is entitled to a severance package that includes the loss of potential income from two possible coaching jobs at Southern California (offensive line) and Temple (head coach) he did not take because he believed his job was secure at UM. That will be a tough claim to prove unless he had concrete offers from those schools.

Piper Rudnick Lawyer George Mitchell to Lead MLB Steroids Probe

Bud Selig has asked 73-year-old attorney George Mitchell to investigate allegations that Barry Bonds and other players used steroids (these allegations surfaced in the recent book Game of Shadows). Mitchell is a former U.S. Senator from Maine, majority leader of the Senate, and, at one time at least, had his name floated for the MLB Commissioner’s job. Another lawyer, yet to be named, is expected to serve as lead investigator.

Mitchell brings years as a Washington insider and power-broker to the table, as well as experience trying to get parties with deep divisions to get along (he worked toward a settlement in Northern Ireland). Some commentary has questioned whether he is sufficiently independent from MLB and team owners to lead this probe. The probe’s mandate would seem the far more important consideration. Will it be focused on Barry Bonds? What evidentiary standard will the investigation employ before concluding that a particular player used steroids? Will Mitchell and his team have the authority to recommend sanctions, or will they report “just the facts”?

UPDATE: John Dowd, the lawyer who investigated Pete Rose for gambling, thinks Mitchell is an uninspired choice without a "great track record." On that question, Dowd may himself have a conflict of interest, since he has been mentioned as another possible choice for the steroid probe.

Wednesday, March 29, 2006

Vince Young & the Legal Treatment of the Wonderlic Test

Last October, Professor Rick Karcher here and Mike here discussed the Wonderlic test as a screening tool for NFL players and its possible racial implications, respectively. I hope they picked their brackets this year with as much foresight: The relevance of these posts to Texas quarterback Vince Young’s draft status following his poor Wonderlic performance is undeniable.

Out of curiosity, I ran a quick database search of the case law to see how courts have treated the Wonderlic test. An interesting case is E.E.O.C. v. Atlas Paper Box Co., 868 F.2d 1487 (6th Cir. 1989), cert denied 493 U.S. 814. In that case, the Sixth Circuit confronted the question of whether the use of the Wonderlic test to screen clerical workers was employment discrimination because of its disparate impact on African-Americans. The court opined, “There is no fixed and firm rule regarding criterion for analyzing studies related to the cognitive ability test relied upon by [defendant employer]. They must generally be evaluated by examination of ‘important elements of work behavior that comprise or are relevant to the job.’” The courting continued, “We make no judgment on this record as to whether, in theory, the proper use of the Wonderlic test may not be demonstrated to be job related in the case of clerical hires. If a defendant uses such a test, it must show that the ‘procedure used measures important skills, abilities, and knowledge that are necessary for the successful performance of the job.’”

Could NFL teams prevail under this standard? Does the Wonderlic test measure “skills, abilities and knowledge” that are “necessary” for “successful performance of the job”? Consider: Joey Harringon (Wonderlic – 32), Donovan McNabb (Wonderlic – 16), Daunte Culpepper (Wonderlic – 15). Which of these three is looking for a job?

The Duke Lacrosse Attack: Tragic Story But Not Sports Law

It has not been a good PR week for my alma mater. For the past few days, the story coming out of Durham about a party gone bad keeps getting worse and worse. Deadspin has a good collection of links, as does this blog that is exclusively tracking the story. For those that haven't heard, a group of 40 male students at Duke, most of whom (if not all) are on the lacrosse team, had a party at an off-campus house. They hired some entertainment in the form of two exotic dancers. According to the women, who are black, the all-white crowd chanted racial slurs at them as they performed. The women started to leave the house, but were convinced to return. Then, one woman claims she was beaten and raped in a bathroom by some of the men at the party. Obviously, these are horrendous charges and Duke and the Durham Police are taking appropriate steps to discover what really happened that night. (News & Observer)

As the media continues to run with the story, I keep hearing about how this is a "sports law" case. I could not disagree more. This is a case about a few men, who happen to be athletes, that may have committed an inexcusable crime against another human being. The athletes also happen to have been in a big group (perhaps leading to a mob mentality) and even more importantly, were undoubtedly drunk. The fact that they happen to play a sport (lacrosse) does not make this "sports law."

In fact, one of the purposes of this blog is to get away from the idea that "sports law" is about athletes committing crimes. "Sports law" is about how sports affect the development of law, and how the law impacts the games we play and watch. Sports don't cause athletes to break the law. Of course, some athletes commit crimes. There have even been some studies that suggest that male athletes, especially those that play "helmet sports," may commit more violent crimes than the average male. But there are approximately 200,000 sexual assaults and rapes in the United States each year (and that number may be low due to incidents that are not reported). I don't see a lot of stories about rapes by football players, hockey players and lacrosse players -- and these incidents are far more likely to be reported than an average sex crime. If you want to blame something other than the men themselves, I would point to alcohol before I looked to lacrosse. Or the group setting. Or the fact that they are in college, when approximately five percent of college females will be the victim of rape or attempted rape in a given year. But if this story is true, the blame should fall squarely on the men that committed these reprehensible acts.

Lacrosse (along with football, hockey, etc) is a violent sport. But the reputation of the sport may go too far in finding links where none exist. The overwhelming majority of athletes can leave their aggression where it belongs -- on the field, just as the overwhelming majority of people can drink responsibly, have a party and even hire adult entertainment without committing a felony. To link this incident to lacrosse is to shield those who deserve to be vilified. And if you don't see a connection with the sport, then there is really nothing that makes this "sports law."

Upcoming Society for American Baseball Research Conference in Seattle

Some readers may be interested in the Society for American Baseball Research (SABR), an organization that promotes academic research about the sport. Each year, SABR members gather at a multi-day convention, featuring some very interesting (and intellectually challenging) presentations. This year's convention is in Seattle June 28 to July 1. Sports law fans may find most interesting the collective bargaining panel, featuring Andrew Zimbalist (founding father of sports economics), sports agent Dick Moss, and former major league pitcher Mike Marshall, with ESPN’s Rob Neyer moderating. I made it to SABR's convention in 2004, when it was in lovely Cincy, Ohio, but missed last year's Toronto event. Be warned: SABR members are intense about baseball, but the conversations are at a pretty high level. The organization as a whole is history and statistics focused, and could use a greater level of baseball law attention (perhaps including a section on the Law of Baseball, to supplement the existing Business of Baseball section).

The Silliness of NCAA Eligibility Rules

Last night's news that Notre Dame football player Tom Zbikowski will make his professional boxing debut this summer exposes the silliness of NCAA eligibility rules, which were used to stop skiier / CU football player Jeremy Bloom from both playing football and earning endorsement monies to subsidize his expensive skiing competitions. Why Coach Weis would "sign off" on letting one of his players get punched in the head a few months before ND begins its hunt for the national championship is a mystery to me. Equally mysterious is how any reasoned distinction can be drawn between letting athletes get paid to box, and letting them endorse brightly colored ski pants. Hat tip to UT 2L James Schwegler for forwarding me the story.

Tuesday, March 28, 2006

A "Mike Davis" Clause in Coaching Contracts?

Details of new Missouri basketball coach Mike Anderson's contract are here. The former UAB coach has agreed to "'be a loyal employee'" and not (according to CNNSI's summary) "bad mouth" the university. The "loyalty" clause is somewhat superfluous, since all employees are agents of their employers owing fiduciary duties of loyalty. The "bad mouth" clause, however, raises interesting enforceability questions (specifically, what would constitute a violation of the clause). Non-disparagement clauses are regularly part of settlements or severance / termination agreements. But it might work out differently for an employee in service. Sometimes, part of being a coach is bad mouthing. For example, "We played terribly tonight." Would that be grounds to stop paying Coach Anderson? Presumably, the contract also includes an arbitration clause, so ultimately, if push comes to shove, we are unlikely to get a court ruling on the viability of such a clause.

Big Unit, Small Heart? Randy Johnson Sues Mother of Secret Love Child

Michael Wheatley and Dave Goldiner of the New York Daily News report on a lawsuit filed by New York Yankees pitcher Randy Johnson against his ex-girlfriend Laurel Roszell, who gave birth to Johnson's first child, Heather, back in 1989 (Wheatley & Goldiner, "Randy Beams Ma of Love Child," New York Daily News, 3/28/2006; see also Smoking Gun). Johnson and Roszell broke up while she was pregnant, and Johnson has only seen Heather once and that was right after she was born (Dan Mangan of the New York Post reports that Heather has repeatedly written to Johnson to meet with him, but he has refused). In 1997--when Heather was 8--Johnson agreed to pay $5,000 a month in child support, plus another $750 in monthly day care expenses. Johnson now demands that Roszell return $71,000 in pre-paid day care payments, plus $26,000 in interest because Heather has not been in day care for at least five years. Johnson contends that Roszell is receiving a windfall for expenses that she did not incur.

Family law is outside my area of legal expertise, so I'll refrain from opining on the merits of Johnson's claim, but as a practical matter, does it really make sense to sue the mother of your daughter who, despite her efforts, you have refused to include in your life, for $97,000 when you make $16 million a year and when you have earned over $100 million in your career? This seems to be an instance of where one should turn to common sense before the law.

Astros' Bagwell-Related Insurance Claim Denied

Unsurprisingly, the Connecticut General Life Insurance Company denied the Houston Astros’ insurance claim for $15.6 million based on the supposed disability of Jeff Bagwell. A good overview of the dispute from the Houston Chronicle can be found here. With this much money at stake, the insurer is unlikely to make payment until such time as the insured has a cognizable claim for bad faith denial. This dispute is likely headed towards arbitration or litigation; if Bagwell in fact plays (for the Astros or another team) this year, the Astros will likely face an uphill battle proving he’s disabled.

The truth is, much of the Astros’ desperation to rid itself of Bagwell has nothing to do with his gimpy shoulder. Instead, the Astros know that Bagwell is of little value to the team in the post-steroids era. Bagwell has long been alleged to have been a steroid user, if not the “root of all steroid usage in the league.” Now that baseball has gotten (a little bit) tough on steroids, Bagwell’s MVP days are done.

I wonder whether the Astros could seek to rid themselves of Bagwell using some sort of contract theory. A few come to mind: fraudulent inducement, changed circumstances, or possibly simple breach. The Astros could claim Bagwell omitted a matter of material fact – his (alleged) use of steroids – and that they were fraudulently induced to enter the contract. That’s a hard sell since the Astros would have to show they did not know and should not have known of his use. A better claim might be based on change of circumstances – that the new steroid policy has frustrated the purpose of the contract (which was to employ Bagwell, an alleged steroid user). The best claim might be simple breach: to the extent that between 2000 and 2005 Bagwell used a banned substance, he may have violated MLB rules (which are incorporated into the standard player contracts), and thus breached a material term of his contract.

I doubt the Astros will pursue any of these claims, because it would subject their 1992-2005 locker room to intense scrutiny about who was using what and who knew what when.

UPDATE: Readers have raised questions about the citation to the "Bagwell Conspiracy" article, and, after further research, that source was probably not the best one to cite (I have now learned the author of that site meant it as "kind of a joke," see here). I merely meant to point out that that there have been rumors and speculation about Bagwell; these rumors are discussed here.

Pistons-Pacers Brawl Beer Thrower Convicted

Pistons fan John Green, caught on tape throwing a beer at Ron Artest and sparking the infamous "Basketbrawl" in the fall of 2004, was convicted of misdemeanor assault and faces jail time and a fine. Interestingly, he was acquitted of actually tossing the cup, but convicted for punches he threw at Artest after the former Pacer entered the stands. Green plans to appeal on the grounds that Artest's failure to attend his trial violated his Sixth Amendment right to, in Green's words, "have him here." Funny, but I don't think those words are in the 6th Amendment. Even if Green loses or abandons his appeal, the civil cases arising from the brawl are likely to drag on for years.

Monday, March 27, 2006

Strange "Superfan" Lawsuit

The Wall Street Journal's Law Blog relates the curious case of an Alabama Crimson Tide fan who has sued a New York Times reporter after a photo of the fan's Crimson Tide-themed RV was featured on the cover of the book Rammer Jammer Yellow Hammer, the subject of which is apparently the rabid fandom of Alabama fans. The case claims breach of contract, outrage, and invasion of privacy; the claimed damages appear to be groundless. Out of fear of having my hosts sued, I won't post this strange picture of the RV in question.

The Idiocy of Spring Training Brawls

Gordon Edes of the Boston Globe reports that the Boston Red Sox and Tampa Bay Devil Rays were involved in a bench-clearing incident in their spring training game today. The Red Sox also had a bench-clearing incident in yesterday's game. In today's game, Sox reliever Julian Tavarez threw and landed a punch at Devil Rays outfielder Joey Gathright after Gathright slid into home plate attempting to take out Tavarez, who was covering. Players from both dugouts then rushed the field, with Sox pitcher Jonathan Papelbon and Sox hitting coach Ron Jackson pulling Gathright up from the ground. Devil Rays outfielder Carl Crawford then threatened players in the Red Sox dugout, although the parties were restrained by that point. The tensions apparently started in the fifth inning when Red Sox first baseman Hee-Seop Choi was plunked by a Wayne Franklin pitch and both sides were warned.

Although the Red Sox and Devil Rays have a history of bench-clearing incidents, a spring training fight shows incredibly poor judgment by the players involved. Obviously, these games don't count and are played merely to help the players prepare for the regular season, and yet now Tavarez and perhaps others will be suspended for regular season games. One could argue that any brawl is idiotic given the likely sanction, and that it reflects poor sportsmanship, but depriving your team of your services due to a spring training fight seems worse. Really, what are you possibly fighting for? The Grapefruit Cup? And I wonder: should players who fight in spring training games face harsher penalties by Major League Baseball, given the extra-stupidity of their decision? Obviously, the penalties reflect collective-bargained parameters, but maybe the parameter needs to be widened for nonsensical spring training fist-a-cuffs.

Race Car Driver Paul Dana’s Death and “Assumption of Risk” in Sports Law

Sadly, IRL driver Paul Dana was killed during a warm up lap for the season-opening race. As reported here: “While streaking around the Homestead-Miami Speedway oval during a warmup session, Dana failed to notice that another car had spun to a stop, slamming into it at close to 200 mph.” Dana died two hours later.

There are obvious tort law / wrongful death issues present in these and other tragic tales. Was the driver of the stopped car, Ed Carpenter, negligent in crashing his own vehicle into the wall? How about track designers, for failing to make more obvious the yellow warning lights? To be sure, blame could be placed on Dana as well; according to a fellow driver, “He carried way too much speed in and wasn't aware of what was going on around him.”

As Greg explained here, the doctrine of “assumption of risk” typically prevents participants from recovering via tort for injuries that arise from “natural” parts of the game. This doctrine, along with Dana’s apparent negligence, would likely bar recovery for his death.

The survival of assumption of risk in sports law even in jurisdictions that have moved away from assumption of risk generally (and towards the modern “comparative negligence” doctrine) is surprising. It likely results from the kind of sickening sentiment that infects courts’ sports law jurisprudence (perhaps best illustrated by “Part I” of Justice Blackmun’s decision in Flood v. Kuhn).

As a sometime teacher of first-year tort law, I challenge students to consider the incentive effects of different tort rules. What would happen if assumption of risk did not bar Dana’s (estate’s) recovery? Well, one of two things. Either the IRL (and other racing circuits) would implement greater safety precautions (speed limitations, more warning flags, etc.) designed to reduce the risk of serious injury and resultant liability. Or the IRL would insure against such risks, incurring the cost of higher premia; such costs would be passed on to viewers / spectators / television sponsors.

Most students intuitively defend assumption of risk on the grounds that changes like more aggressively deployed “caution” flags (or nets protecting baseball spectators from foul balls) would “ruin” a sport. Judges, I suspect, often reach their conclusions based on similar instincts. But note what I’ve said about the incentive effects of abolishing assumption of risk in sports: Either the game would change, or IRL would buy more insurance and pass on to fans the costs of premia hikes. If in fact greater safety measures would “ruin” racing, then the IRL would likely pursue the greater-insurance solution. Yes, fans would probably end up paying more for their tickets; but since it’s the fans that are enjoying the benefits of non-ruined racing, isn’t it most fair to let the fans bear the cost?

George Mason, College Sports and U.S. News Law School Rankings

This week, U.S. News and World Report releases its oft-maligned yet unquestionably powerful ranking of American law schools. Schools like mine—which flit between the bottom of the “second tier” and the top of the “third tier”—anxiously await the results. Life in the “second tier” means more submissions to our law review, better applicants from outside of our “region”, and more success at recruiting top candidates for law professorships.

In spite of its flaws, the U.S. News rankings are fascinating, in a certain sense. They have spawned a cottage industry of rival law school ranking methodologies, as well as sparked academic debate about the meaning of rankings and their effect on law schools.

What I’m wondering today is whether there is any effect of the performance of college sports teams on law school rankings. Two components of the U.S. News are “academic reputation,” which is calculated by polling four employees of each of the nation’s law schools (the Dean, the Associate Dean, the chair of the hiring committee, and the most recently tenured faculty member), and “reputation among lawyers and judges,” in which (we think) U.S. News polls practitioners in the state in which the law school is located.

These two measures together constitute something like 40% of the “score” for a law school, and they fluctuate wildly and often have little to do with either the quality of faculty scholarship (something you’d think would affect academic reputation) or student bar passage (something you’d think would affect reputation among practitioners). Part of the problem with these measures is that an associate dean in a law school in Los Angeles may be able to rank Harvard and Yale, but unless they are particularly savvy, probably has never heard of a law school like mine. Whether that person gives us a “1”, “2” or “3” out of “5” plays a huge role in our score. But odds are, they’ve not heard much about us, certainly not enough to give any sort of accurate ranking.

But what if our sports teams suddenly start doing better? Now, suddenly, a school like mine might be one people on the east or west coasts have heard about. Might law school rankings be affected by “break out” years for second, third and fourth tier schools’ undergraduate sports teams? Even first tier schools might benefit. For example, George Mason University has a wonderful law faculty (from a publishing perspective), which is amazingly productive in the area of law and economics. Indeed, GMU law professors produce more scholarship on a per capita basis than nearly any other school. But GMU seems to be stuck in the lower part of first tier (sometimes slipping into the second or third tier), never able to pass larger, better known schools. My guess is this is mostly because the law school is tied to (and anchored by) a third-string state university system (in Virginia, GMU as a whole lags behind UVA, Virgnia Tech, and the College of William and Mary in terms of prestige for state-run institutions). I wonder if things might begin to change now that GMU’s basketball team has had a break-out year in the NCAA tournament, advancing to the Final Four. Two years from now, perhaps we’ll see an even higher placement for GMU Law. Similarly, I wonder if the recent strength of the Mid-American Conference (MAC) in football (in which MAC QBs like Chad P., Byron L., Ben R., Omar Jacobs and Bruce Gradkowski were, or were predicted to be, playing on Sundays) might eventually help buoy MAC law schools like Toledo, Northern Illinois, Akron, and Buffalo into higher rankings. For instance, Marquette’s law school may have benefited reputationally through the contributions of Dwyane Wade, who never wrote a law review article or sat for the bar exam.

On the other hand, at the very top, academic reputation might suffer with athletic success. Many professors – more in arts and sciences but also in law school – still remember being the awkward nerdy kid picked last in sports. They might punish schools in their “academic reputation” when their undergraduate teams do well. For example, Stanford is a wonderful institution, but never seems to attract the reputation of a Harvard or a Yale. Is that because in addition to turning out great scholars, the school turns out great athletes? Schools like UVA, which are near the top in the law academic ratings, perhaps should be careful what they wish for next football season.

UPDATE: The Sports Economist addresses the likely effect of GMU's Final Four appearence on the university as a whole, and mentions some empirical research conducted on the subject of how universities benefit from "breakout" sports seasons.

UPDATE #2: GMU now faces a danger that its basketball success may cut into class time. Are diminished bar passage rates in the school's future?

UPDATE #3: Law profs Larry Ribstein and Todd Zywicki weigh in.

Sunday, March 26, 2006

Still here

I haven't abandoned my blog here. I've just been very busy with various projects, but it is my intention to return to this project as soon as possible.

Thursday, March 23, 2006

Barry Bonds to Sue Game of Shadows Authors, But NOT for Libel

Attorney Michael Raines, who represents Barry Bonds, plans to file a lawsuit against the authors of "Game of Shadows" (Mark Fainaru-Wada (top) and Lance Williams (bottom)) alleging that they violated California's Unfair Competition Law by using "illegally obtained" grand jury transcripts in writing the book. The lawsuit will ask for damages at least equaling all profits generated by the book's sales. We recently discussed the book and its allegations on Sports Law Blog.

Perhaps more interesting than this lawsuit is what it isn't: a libel lawsuit. If Bonds used steroids and lied about it under oath, a libel suit would have been disastrous for him. A court would have to weigh the veracity of the book's allegations, as truth is a defense to a libel charge. In other words, and fairly or unfairly, Bonds not suing for libel might intimate an admission on his part as to the book's claims, for if those claims weren't true, then Bonds would presumably sue for libel; the fact that he hasn't seems telling (especially since he is obviously willing to sue the authors on another ground -- it isn't like he has an aversion to litigation). Granted, libel claims are extremely difficult to prove, and that is especially true for public figures, but is that really the reason why Bonds isn't suing for libel?

As to the unfair competition claim, this lawsuit will focus on how the Fainaru-Wada and Williams obtained the grand jury testimony (an ostensibly safer topic for Bonds personally). Interestingly, according to an excellent article by attorneys at the law firm of Stroock & Stroock & Lavan, the California Unfair Competition Law (California Business and Professions Code Sections 17200 through 17209) is the state's most frequently used consumer protection statute, with the number of related cases by both private and governmental plaintiffs increasing from year to year. The law is especially popular because, unlike other unfair and deceptive practices statutes, intent is irrelevant, as a "Section 17200 plaintiff" is not required to show that the defendant actually intended to injure anyone. Moreover, a viable Section 17200 claim can encompass any unlawful, unfair, or fraudulent business act or practice, and, meaningfully, a practice can prohibited as "unfair" or "'fraudulent" even if it is not unlawful. And if the practice is unlawful, a plaintiff does not even have to show that the plaintiff was actually injured. In other words, the California Unfair Competition Law is very favorable for plaintiffs.

But will it be favorable enough for Bonds? That remains to be seen, and we can be sure the attorneys for Fainaru-Wada and Williams will attempt to shape the lawsuit in a way that could force Bonds to answer the book's charges. In any event, the bigger story appears to be that Bonds has sued the authors of Game of Shadows and it isn't a libel suit.

Yankee Hater Logo, Trademark Law, and Corporate Paranoia

ESPN's Darren Rovell has a great piece on Mike Moorby, a 38-year old financial advisor from New Jersey who created a side business devoted to all things hating the New York Yankees. (Rovell, "The Yankee Hater Biz,", 3/22/2006). I know what you're thinking: Why hasn't anyone come up with this concept before? After-all, who could possibly like the New York Yankees? But I digress. Moorby is a diehard Red Sox fan who thought it would be fun to create a Yankee Hater ("YH") logo.

Moorby's business, Rebel Forces LLP, took off in 2004 when such Red Sox players as Curt Schilling and Kevin Millar started wearing hats with the YH logo. But the fun stopped when Major League Baseball sent him a cease-and-desist letter, and when the Yankees filed an opposition to his trademark application. A hearing before the Trademark Trial and Appeal Board could occur in the coming months. The Yankees claim that consumers are confused by the similarity in logos (even though the logo and colors seem obviously different):

Rovell interviewed two persons for the story, including me. Needless to say, this is a story that I loved being interviewed about:
Two legal experts contacted by, however, say that it's possible Moorby can defeat the almighty Yankees. Winning a trademark case, they say, requires proving either that a certain brand has been compromised or that there is confusion about who is selling the product.

"The Yankees aren't hurt by this," says Marty Schwimmer of Schwimmer Mitchell, a trademark law firm in New York. "Add to that the fact that sports owners have accepted the degradation of their names and logos as part of 'good-natured' tarnishment. It's all part of the game." As evidence, Schwimmer cites colleges that routinely make licensing royalties by allowing their mascot to be demeaned by an opposing school's mascot on merchandise, as, for example, the University of Alabama does when it contracts with a merchandising company in Auburn, Ala., that prints T-shirts featuring 'Aubie' spanking little Alabama elephants.

"This is the classic case of corporate paranoia," says Michael McCann, an assistant professor at the Mississippi College School of Law. "If they try to make the case that consumers are confused as to what is being sold here, that's absurd. You don't even have to be a baseball fan to recognize the difference between a Yankee Hater logo and a Yankees logo."
You'd think the Yankees would have other things to worry about, like their aging pitching staff or how their brand new (yet 32-year old) $50 million center fielder is already hurting, but I guess not.

Callaway Files Lawsuit Over Patents

The legal community has been abuzz for weeks about the state of the nation's patent law (yes, some people do get excited about patent law), in the wake of the Blackberry/RIM lawsuit and settlement. The Supreme Court will also address a key patent issue next week. Some believe that the current patent system does not reward innovation, but rather allows a patent-holder to "sit" on a patent and develop it into a product, instead waiting until a company uses the technology and suing for millions. This is called patent trolling. Others believe the system works as intended, rewarding a company that had its intellectual property commandeered and used for profit.

Sports are also affected by patent law. (See Bambauer, Legal Responses to the Challenges of Sports Patents, 18 Harv. J. L. & Tech. 401). The latest battle is in golf.
    The most popular, most tour-validated and most revolutionary ball in the history of golf is now the principal exhibit in a lawsuit involving golf's two largest companies.

    On Thursday, Callaway Golf filed a complaint in U.S. District Court in Delaware against Acushnet, alleging that Acushnet's Titleist Pro V1 line of golf balls infringes on four or more golf ball patents owned by Callaway. The lawsuit, says Callaway spokesman Larry Dorman, was filed "only after repeated attempts to negotiate a settlement failed." He would not specify how long the companies were negotiating, other than to say "quite a while."
(ESPN). The issue in this case is different from the Blackberry case. Callaway acquired a number of patents when it purchased Top-Flite from bankruptcy in 2003, including several that dealt with "the construction of a multilayer ball with a solid core and a polyurethane cover." Now, the engineer that developed that patented technology is at Acushnet and Callaway claims he has used the technology to develop the Pro V1 golf ball. Acushnet responds that the engineer has developed new technology, that does not infringe on the existing patents. The outcome of the dispute, which may require a lengthy trial, could be worth hundreds of millions of dollars.

Wednesday, March 22, 2006

Soriano Surrenders: He will Play Left Field for Washington Nationals

Yesterday Joe Rosen posted about Alfonso Soriano's refusal to play the outfield for the Washington Nationals, and how the Nationals had threatened to place him on the Disqualified List, which would have required him to forfeit his salary and would have embarrassed and stigmatized him in the baseball community. A few hours ago, in a sign of D├ętente between the two parties, Soriano acquiesced and agreed to play left field for the Nationals. An All-Star the last four years at second base, Soriano will now take a new position in what will likely be his only season in Washington, as he is set to become a free agent at the season's end. He intends to return to second base in the 2007 season.

Soriano's acquiescence takes away what could have become a landmark case in sports law, as it appears that no player in a major sport has ever refused outright to perform his assigned job. And a fight was clearly on the horizon: the Major League Baseball Players' Association expressed unambiguous support for Soriano, and Attorney Jeffrey Kessler--who argued the case of Terrell Owens for the NFLPA--characterized the purported punishment of Soriano as "excessive" and possibly beyond the scope of any collectively-bargained provision. Had it continued, the dispute between Soriano and the Nationals would have likely been heard by an arbitrator.

Although the Soriano story appears over, the larger issue remains: Should players be forced to forfeit their salaries if they refuse to play a position? If the answer is "yes," then players need to communicate these position preferences to their agents, so that they are negotiated in the contract. Soriano, through his agent Diego Bentz, presumably could have negotiated a position clause in his contract, but I have not read that he did so. Rick Karcher has written extensively about the failure of agents to maximize their clients' preferences, and it is a subject very relevant in this discussion.

But was the putative penalty--forfeiting Soriano's salary and, by placing him on the suspended list, stigmatizing and embarrassing him--appropriate? After-all, he wasn't holding out or bad-mouthing the organization. Nor was seeking more money or necessarily a new team. In fact, he was more than willing to play for the Nationals, at least under a certain set of conditions. Although I normally take the players' side on matters, I tend to think the Nationals had the right to remove Soriano from the team, or any player who engages in positional insubordination. Soriano's contract calls for him to play for the team which pays his contract and presumably in a way that team deems most appropriate. He clearly didn't like being traded from the Rangers to the Nationals, but then again, whose fault is that? Couldn't his agent have negotiated a no-trade clause?

Moreover, it's unlikely that allowing the Nationals to disqualify Soriano would have led to a slippery slope of perverse incentives in professional sports. Along those lines, I find it far-fetched to think that teams would require players to play positions that those players would find so repugnant that forfeiture would actually make sense -- for instance, I can't see the Red Sox telling a vastly overpaid Mike Lowell, "look, we're going to move you from third base to catcher" because they believe he would rather forfeit his $8 million salary than play catcher (although I wish that had tried that maneuver with Kevin Millar last year, but that's another story).

Tuesday, March 21, 2006

The Law of Thirst: Gatorade Sues Powerade

ESPN's Darren Rovell on his Gatorade Blog writes about a lawsuit filed by PepsiCo, the makers of Gatorade and Propel, against Coca-Cola, the makers of Powerade, in the U.S. District Court for the Northern District of Illinois. The lawsuit claims that Coca-Cola is airing a misleading advertisement by claiming that "Powerade Option" has 80 percent fewer calories than "Gatorade." The problem, as Rovell writes, is that Powerade Option is a fitness water that competes with Coca-Cola's Propel, also a fitness water--and not Coca-Cola's Gatorade, an energy drink--and Option and Propel have nearly the same caloric content. But Coca-Cola apparently contends that it seeks to market Option as an energy drink, rather than as a fitness water, so the comparison between Option and Gatorade should be considered fair.

Rovell writes:
You can't say we didn't see this coming. I knew the people at Gatorade were really mad when they saw the bottles of POWERade Option. Their problem was that the bottles and the advertising claim to have "80 PERCENT FEWER CALORIES THAN GATORADE." The issue of course is that they are clearly not comparing apples to apples. POWERade Option is Coca-Cola's answer to Propel, so you have to compare Option to Propel, not Option to Gatorade. If you compare Option to Propel, they are pretty much identical. And if you compare Option to POWERade, Option has 85 percent fewer calories that POWERADE! But Coca-Cola wanted to try to sell this as a sports drink, not a fitness water. So the question now becomes, can they legally sell at as a lower calorie sports drink instead of a fitness water?
The lawsuit, according to John Schmeltzer of the Chicago Tribune, is unusual in the advertising world because disputes are normally settled before the National Adversiting Division ("NAD") of the Better Business Bureau, which assesses the truthfulness and accuracy of competing advertising (Schmeltzer, "Sports Drink Spat Lands in Court," Chi. Trib., 3/21/2006). PepsiCo tried the NAD last fall:
That's where Gatorade turned last fall when Coke launched an ad campaign claiming Powerade Option had 80 percent fewer calories without disclosing there were significant differences between the two drinks.

The NAD decided that Coke could not run the calorie commercial without disclosing "that consumers will not receive the energy replacement benefits provided by Gatorade."

Coke agreed "to take the NAD's recommendation into account in future advertising."

But Coca-Cola hasn't done anything about this ad campaign. It will be interesting to monitor this lawsuit, which is considered similar to one filed two years ago by potato chip-maker Jay's Foods against Frito-Lay and its ads comparing the two chips (those parties settled before trial, and I bet the same thing happens in this lawsuit between PepsiCo and Coca-Cola).