Wednesday, November 29, 2006

Update on David Stern and NBA Player Autonomy

An update on our coverage of David Stern and the NBA's recent efforts to regulate NBA player behavior (a subject which I examine here and here, and be sure to check out the excellent reader comments associated with those posts):

1) I was interviewed by True Hoop's Henry Abbot on his podcast show and we talked about David Stern and the NBA. The interview lasts about a half hour and can be heard at this link. For a written description of the interview, check out this link. It was a lot of fun to be on the show and thanks to Henry for having me on.

2) T.J. from Michael Redd Boat Ashore has an excellent reply to my reply from yesterday on NBA player autonomy. T.J. is a very thoughtful and insightful writer and his analysis makes for a great back-and-forth exchange. I'll definitely be reading his blog regularly, he has some great commentary.

3) Skip Oliva, President of the Voluntary Trade Council, e-mails me this comment:
Stern's actions should raise serious "corporate governance" concerns. In what other business is a CEO permitted to silence shareholders who criticize management? If a publicly-traded company imposed such a gag rule, it would obviously be ignored, and I doubt the SEC would be happy.
4) Gregory Bowman, a colleague on my faculty and author of Law Career Blog, e-mails me this comment:
One interesting issue, from a league structural perspective, really is "Why do we care?" Sports says a lot about our society, so we enjoy sports. But why should we care about who has the power, and the money, and the ability to shape the future of the sport? When we just look at sports as its own little microcosmic view of society, do we really care who has the power? If so, why, and what should the power structure be? Or perhaps more appropriately, what should the rules be for how power shifts amongst owners/the league, the players, and the municipalities that benefit from (and sometimes support) these teams?

David Dunn Accepts 18-Month Suspension

Two weeks ago, I raised some questions regarding the proper role of unions in disciplining agents and mentioned that agent David Dunn was appealing the NFLPA's 2-year suspension of his license. This week in Street & Smith's Sports Business Journal, Liz Mullen reports that Dunn and the NFLPA avoided arbitration and agreed to an 18-month suspension ["Dunn and NFLPA agree suspension will last 18 months" (subscription required)]. According to NFLPA general counsel Richard Berthelsen, “This suspension will take Dunn through two drafts and two free agency periods, so it is essentially equivalent to a two-year suspension.”

The NFLPA's agent regulations mandate that all disputes be resolved through arbitration. The settlement evidences that Dunn didn't think he had any chance whatsover in defending his case in front of the NFLPA's arbitrator, Roger Kaplan. As Berthelsen correctly notes, the end result here is essentially a 2-year suspension, which is no different than the suspension originally imposed by the NFLPA. So does that really constitute a settlement?

Dunn represents over 60 NFL players. The ramifications of this suspension, which include the strong likelihood that he will lose clients to other agents as well as the lost revenue on contracts he would have negotiated during this 18-month period, would seem to give Dunn every incentive to vigorously fight it. He could have at least tried to convince the arbitrator to reduce the suspension to one year. So why didn't he?

The NFLPA's agent regulations regarding the selection of an arbitrator state: "The NFLPA shall select a skilled and experienced person to serve as the outside impartial Arbitrator for all cases arising hereunder." There is also a provision stating that the fees and expenses of the arbitrator shall be borne by the NFLPA. These provisions raise some interesting questions. Is an arbitrator that is selected, and paid for, by one of the parties to a dispute really "impartial"? Maybe Dunn's decision to accept the suspension was influenced, in part, because he doesn't feel Kaplan can be impartial. And when the same arbitrator is selected on a continuous basis, is he really an "outside" arbitrator or does he gradually evolve into an "insider" through repeated use?

The counter argument is that, by deciding to represent players, agents consent to all of the union's agent regulations. But are agents really consenting when they have no choice or ability to negotiate any of the provisions? Could it be argued that union agent regulations are adhesion contracts?

Tuesday, November 28, 2006

Loyola L.A. to Host Symposium on Collective Bargaining & Individual Contract Negotiation in Pro Sports

Loyola-LA's Sports Law Institute will host what looks to be an interesting symposium on January 26, 2007. The best part is that law students from any law school will be admitted free. Panels include "Q & A on entry into sports law," "Individual Contract Negotiation," and "Collective Bargaining." The symposium looks to have a good slate of speakers. Check out the full brochure here.

NBA Player Autonomy: How Should We Define It?

On Tuesday, I posted on recent efforts by the NBA and Commissioner David Stern to regulate NBA players, and to do so without the consent of the players' association. I also discussed how some owners appear to be finding Stern's style a bit too autocratic, and how these topics tied into some of my scholarly research. The post generated great discussion in the comments and also the websites that are linked from it.

In response to the post, T.J. from the blog Michael Redd Your Boat Ashore has posted a highly substantive, 1,500+ word review of my law review article The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor & Employment Law 819 (2006). The review is thoughtful and balanced, and I am incredibly grateful that someone would take the time to read my stuff and respond to it so carefully. It's the same reason why we appreciate you reading our blog and making comments.

In terms of T.J.'s questions, he is correct to say that I never specifically define "player
autonomy" in the article. It's an amorphous phrase, no doubt, and a phrase that can be perceived differently by different people. However, there are patterns of behavior that perhaps give some life and even specificity to it. For instance, if players object to a league-instituted dress code and believe it is a mixture of condescension and overbearingness that infringes upon their right to be who they are in ways that don't affect the lives of other people (i.e., the clothing other people wear should not bear on other people around them, perhaps save for not wearing any clothing or clothing that contains expletives), and they have no choice but to abide by it--it's not, for instance, a team rule or a collectively-bargained one, and pro basketball isn't a sport where there are rival and equivalent leagues offering substitute employment opportunities--that can be suggestive of autonomy. Autonomy can also relate to race and culture, a topic that has been raised in regards to the dress code and whether it endorses the clothing of one demographic group while condemning that of another. In those respects, autonomy, as I conceive it, is more of a situational concept than a rigid one. In that same vein, some principles obviously can't have bright-lines, but are nevertheless worthy, and autonomy, in my view, is one of them.

T.J. also asks about the appropriate limits of an autonomy argument.
For instance, he asks if it includes Bulls' head coach Scott Skiles enforcing a team rule that prohibits Ben Wallace from wearing a headband. My response is to first consider that Ben Wallace choose to sign with the Bulls, which already had a rule in place against headbands. That's a materially different fact-pattern from a league instituting a rule that affects all players, particularly after they have already entered the league and particularly without the protection of collective bargaining. There is no question that Wallace would argue that his autonomy should include the option of wearing a headband (and there are even medicinal reasons for wearing a headband, such as not letting sweat get into one's eyes, but that's a separate argument). But Wallace's argument is undercut by his own behavior. He could have easily signed with another team as a free agent, and yet opted for the Bulls (much like Johnny Damon signing with the Yankees and having to abide by their appearance code). In law, we might call that an "assumption of risk"; in contrast, a unilaterally-imposed, league-instituted dress rule obviously presents no alternatives for players--they can't sign with a particular team and not have to deal with it--and it also circumvents collective bargaining.

Maybe a more difficult example would be if the Bulls drafted a player who likes to wear headbands, and now he can't. Hypothetically, let's go back to the 2003 Draft and assume the Bulls, and not the Nuggets, have the number three pick. And Carmelo Anthony--he of the headband--is on the board. And the Bulls draft him. And they tell him, look Carmelo, we think you're great but the headband has to go, we have a team rule against it. What would be Carmelo's options?

First off, consider that some would argue the draft itself is an infringement on player autonomy. Players have to play for a particular team in a particular city, neither of which they may like, and the only alternative would be to play minor league hoops or play in Europe; it's like being a law student at UCLA and planning to practice in L.A., but then there is a law firm draft and you get picked by a law firm in Bismarck North Dakota, and have to stay there for at least four years or you can't practice law in the U.S. (or at least practice law in the U.S. without having to give up 95% of your salary). For related commentary on this, check out Alan Milstein's post Reggie Bush Sweepstakes from last December.

But even if the draft (and also the rookie salary scale) aren't infringements on player autonomy, would the Bulls' rule infringe upon Carmelo's autonomy? One could say that Carmelo can still get around the rule and continue with his NBA career, because if he really cares that much about the headband, he can holdout and not get paid and hope the Bulls eventually either carve out an exception to the rule or trade him to a team that doesn't have the rule. And there are NBA teams that do not have this rule and that would love to have Carmelo, and in this alternative history, the Bulls drafted Carmelo knowing that he likes to wear a headband. So I suppose one could say that Carmelo's autonomy here remains, at least in some form. Contrastingly, with the league-imposed dress code, there aren't any teams that can opt out of it for players who don't like it; it is a league-imposed rule.

But let me argue against myself on that point. Couldn't a group of NBA players, from various teams, simply not show up to work and hope the NBA relents on the dress code, much like Carmelo could not show up and hope the Bulls change their policy (or trade him)? Yes, but the reality is that neither Carmelo nor the players would likely do so because each manifestation of one's autonomy has some finite value, particularly in relation to other forms of one's autonomy and also one's practical considerations, such as earning a paycheck. But that doesn't make the infringement right or socially-desirable. It just means that it only hurts a player "less" than would be required to keep his autonomy.

This post is probably too long, but just to quickly respond to T.J. on couple of other comments:

1) My statistical research was assessed and confirmed by two editors of ESPN the Magazine and two producers at HBO when I was on the Bob Costas show in 2005, as well as the editorial staffs of four law reviews (Case Western Reserve Law Review, Brooklyn Law Review, the University of Pennsylvania Journal of Labor and Employment Law, and the Virginia Sports and Entertainment Law Journal). There is no "statistical sleight of hand," as you put it.

2) I whole-heartedly disagree with your remark "I find it off-putting to employ the discourse of labor rights in a conversation about multi-million dollar athletes. I prefer to save the efficacy of that language for underpaid blue-collar laborers, undocumented immigrants, and sex workers-just to name a few." You are basically saying that the fact that these guys make a lot of money means their autonomy is not really a concern for you. Aren't they still people or do they somehow become less human because they make a lot of money? Or is it their wealth as much as who they are that bothers you: would you feel the same way about Bill Gates as you do about Allen Iverson?

Monday, November 27, 2006

Mimicking Japan and Cuba? Hugo Chávez to Restrict Access to Venezuelan Baseball Players

Graham Dunbar of The London Times has an interesting article on Venezuelan President Hugo Chávez's plans to restrict Venezuelan baseball players who seek to play in the United States ("Game Over? Politics May Pitch Baseball into a Crisis," Nov. 25, 2006). Currently, Venezuelan players, like Dominican and other Latin (but not Cuban) and South American players, can be directly recruited by Major League Baseball teams, and can be signed by as young as 16. Indeed, amateur baseball players from countries that are not subject to the MLB Draft, an agreement between MLB and the host league (Japanese Professional Baseball), or law (Cuba), may be signed by any Major League organization at age 16, provided they turn 17 prior to either the end of the baseball season in which they are signed or September first of the year in which they are signed. In contrast, if an amateur baseball player is from the United States, including its territories, or Canada, he can only sign with a Major League organization if he first enters the MLB draft, and he must have graduated from high school.

With this less regulated set-up for signing most international players, including Venezuelans, nine MLB teams have invested millions of dollars in setting up baseball academies in Venezuela, and most have set up at least one academy abroad. As a result, "changing the rules" on how big league teams sign Venezuelan players could jeopardize those teams' investments in academies and recruiting. It could also curtail the influx of Venezuelan players into the United States. It probably goes without saying, but there a number of terrific Venezuelan players in the big leagues, including Johan Santana, Bobby Abreu, and Magglio Ordóñez, and many top prospects are on the way.

Here are some key excerpts from Dunbar's piece:
Baseball fans in both countries fear that President Chávez may deprive the American game of one of its prime assets — the flow of rich talent from Venezuela.

One of the greatest concerns among the middle class, who increasingly steer their sons towards baseball academies rather than academic college, is that Mr Chávez will close the domestic professional league and restrict the rights of sportsmen to play in America. Ron Rizzi, a scout for the Los Angeles Dodgers, has served the game for 39 years and has been coming to Venezuela to watch players for the past decade. He said: “Chávez is so anti-US that he may inhibit players’ ability to get there. If he wins the election they might have to come out on a boat.”

It's not entirely clear what Chávez--who is up for re-election next month--actually plans to do, but he's no doubt hoping to extract more money from MLB teams that pursue Venezuelan players.

I have no idea if there is any connection between Chávez's plans and the $51 million the Red Sox are paying Daisuke Matsuzaka's Japanese team, the Seibu Lions, for the right to negotiate with him, but the timing seems noteworthy. After-all, the arrangement between MLB and Japanese baseball is far from a free market, and requires a complex posting procedure that involves MLB teams bidding for the right to bid for Japanese players. So maybe Chávez wants to build a competitive Venezuelan professional league that would justify a posting system, and perhaps Chávez figures that if MLB is willing to capitulate to Japanese baseball, then it would do the same with him. And if he's right, then other Latin countries could follow in his lead, which in turn would seem to boost Chávez's political stock in Latin and South American countries as a regional leader.

Or maybe Chávez, who is said to idolize Fidel Castro, simply wants Venezuelan baseball to mimic Cuban baseball, where it's nearly impossible for players to leave in the absence of defection, which itself is often dangerous, both for the players and their families. That doesn't seem like a terribly good ambition.

Or maybe, and in Chávez's defense, he's genuinely trying to improve the conditions under which Venezuelan players are signed by big league teams. After-all, a number of thoughtful observers have criticized MLB baseball academies as symbolic of American imperialism and exploitative of economically-disadvantaged countries. For instance, check out the following:
Related Coverage on Sports Law Blog:
The Citgo Sign Behind Fenway Park and Fearing Hugo Chávez
Bidding for Matsuzaka Poses Interesting Legal Issues

Sunday, November 26, 2006

Saturday Night at the Zoo

I went to Riverbanks Zoo last night with my friend Tiffany and company to look at the Christmas lights. Tiffany took some pictures with her camera phone, and I am posting them here. Enjoy.

Friday, November 24, 2006

The Forbidden Fruit (or Cheeseburger): Deliberate Food Posioning of NFL Players?

Oakland Raiders' defensive tackle Warren Sapp probably eats a lot of food and probably eats it often. After-all, he weighs at least 300 pounds, and a good portion of his game is based on his ability to use his girth to flatten running backs.

But while on road trips, Sapp won't eat at restaurants. And that's because he believes that his meals were purposefully poisoned on at least three occasions from 1995 to 2003, during which time he played for the Tampa Bay Buccaneers. He claims that deliberate food poisoning was especially a problem when traveling to Philadelphia, so much so that he "even went so far as to book two hotel rooms -- one under an alias -- so he could order room service and not worry about his food." Sapp doesn't charge that the visiting teams had anything to do with the poisoning, only their diehard fans who happen to serve food.

Could Sapp be right? Keep in mind that Sapp may not have become sick on those occasions due to food poisoning; he might have instead caught a bug, which he attributed to something more sinister and purposeful, if less likely, such as a crazy Eagles fan--which actually is likely--poisoning his food (much less likely). It is sort of self-affirming to think that a fan is so afraid of what you could do to his favorite team on game day that the fan would actually try to stop you from playing. That's not to say that Sapp didn't suffer from food poisoning, but I could see why he might want to believe that his symptoms resulted from food poisoning rather than a cold or flu.

Also, Sapp says that he was poisoned on three occasions over an eight-year stretch. If he's correct, that does seem unusually often, unless, perhaps, he frequented Jack in the Box a bit too regularly. But even then, the food poisoning wouldn't have been intentional, only the result of gross negligence on the part of one of our nation's beloved fast food companies.

See Also
Hold the Spit, Please: Food and Beverage Security at Sporting Events
Hold the Blood, Please: More Concerns for Food Security

Wednesday, November 22, 2006

Oakland Raiders Lose in Case Against Stadium

The Oakland Raiders, source of so many wonderful sagas of sports litigation (see here for another one), produced a new installment last week. The latest case concerns allegations that the team was duped into leaving Los Angeles based on mispresentations about season ticket sales made by the Oakland-Alameda County Coliseum (OACC). The Raiders initially won a multimillion dollar jury verdict, although the award was far less than the amount sought. And, as reported here, in
a split opinion Friday, California's 3rd District Court of Appeal set aside a $34.2 million judgment that favored the football team, ruling that Davis and the Raiders gave up their right to sue for fraud when they reworked a 1995 lease agreement with the Oakland-Alameda County Coliseum.
The court expalins in its opinion, Oakland Raiders v. Oakland-Alameda County Coliseum, Inc., 2006 WL 3334402 (Cal. App. Nov. 17 2006):
California law has, for more than a century, recognized that a plaintiff claiming to have been induced into signing a contract by fraud or deceit is deemed to have waived a claim of damages arising therefrom if, after discovery of the alleged fraud, he enters into a new contract with the defendant regarding the same subject matter that supersedes the former agreement and confers upon him significant benefits.
The court continued:
In this case, the Raiders admittedly discovered the falsity of the OACC's "sellout" representations regarding . . . ticket sales not later than the end of the 1995 football season. In 1996, without any mention of fraud, they negotiated and executed a new agreement concerning the same subject matter, which modified the rights of the parties, granted the Raiders significant benefits, and otherwise reaffirmed the validity and enforceability of the August 7 agreements. . . . [T]hese facts establish an implied waiver of the Raiders' claim for fraudulent inducement.
The Raiders also lost out on a bid for attorney fees, which will likely cost the franchise another $10 to $20 million.

Another Agent Suing NFLPA Over Due Process

In September, I discussed Carl Poston's lawsuit against the NFLPA claiming that the union violated its agent regulations when it imposed a 2-year suspension as a result of his dealings with the Redskins on behalf of his client LaVar Arrington, including a breach of the union's contractual obligation to provide a "neutral" arbitrator in which to appeal the suspension (because the arbitrator is selected, and paid for, by the union). Poston also claims that it's a conflict of interest for (1) union counsel Jeffrey Kessler to use certain information obtained in LaVar's grievance against the Redskins without LaVar's consent and (2) Kessler to pursue a disciplinary complaint against Poston (which Arrington opposes) because it's against the interest of Kessler's client (Arrington) to do so.

Two days ago, veteran agent Steve Weinberg filed a lawsuit claiming that the union stripped him of his past, present and future income and all of his NFL clients when the union decertified him back in 2003 for violations of the union's agent regulations. Weinberg is seeking $36,750,000 in damages -- $12,000,000 in compensatory damages and $24,750,000 in punitive damages. The press release, drafted by Weinberg's lawyer, states:
Weinberg believes that this lawsuit will show that he received disparate treatment from other contract advisors, partly for speaking out against the NFLPA's failure to abide by and enforce its own regulations. Weinberg also believes that discovery in this case will uncover certain valuable information that the NFLPA has previously kept from its members.

The NFLPA's ability to immediately strip an agent of his certification -- overnight and without due process -- has a chilling effect on all agents and stifles their advocacy for their players. The NFLPA took away Steve's livelihood and he wants it back. He's fighting for his constitutional rights. One day he had a livelihood and 42 NFL clients. The next day he had neither.

After the NFLPA immediately revoked his certification in February 2003, all 42 of Weinberg's NFL clients, including 25 free agent players, most of whom he was preparing to represent in upcoming free agent contract negotiations with NFL teams, suddenly were forced to seek out new player representatives. The suit contends that these NFL players were financially harmed by the NFLPA's actions against Weinberg, even though the mission and sole purpose of the NFLPA is to protect the players.
The NFLPA's agent regulations are the strictest of any of the unions' regulations, and the NFLPA (unlike the other players associations) obviously takes the position that enforcement of its regulations is the best way to combat agent misconduct. But stricter regulations and vigorous enforcement doesn't appear to be deterring agent misconduct. So here's my question: Is the huge expense of enforcement, as well as the time and expense involved in fighting lawsuits against agents, an efficient use of the union's resources?

After Weinberg was decertified, NFLPA general counsel Richard Berthelsen made an interesting remark: "Players aren't lawyers. They're players .... at the very least, the agent has an obligation to keep his players from being interfered with as they prepare for an important game." Berthelsen is absolutely right. In my recent Willamette Law Review article I take it one step further and discuss how even "permitted" player solicitation and recruitment by agents substantially interferes with players. I also discuss how the agent commission fee arrangement, combined with the rise in player salaries over the years, is providing a huge incentive for agents to vigorously compete for players, which naturally leads to agent misconduct in a variety of forms.

Last week, I raised some questions about the proper role of unions in disciplining agents. I question whether enforcement is the answer. It requires the union to make subjective assessments about particular agents over others as well as difficult factual determinations. And as the "exclusive" representative of the players under the NLRA, should the union be fighting claims brought by agents that it arbitrarily and unfairly applied its agent regulations?

Why not give players the option (not a requirement) of having a union representative negotiate the contract? With its access to information and highly qualified lawyers, the unions are arguably better equipped to negotiate contracts and oversee the process than agents anyways. One could argue that the utility of an agent is also diminished with respect to "rank and file" and "franchise tag" players that don't have much room to even negotiate. If a player then decides to go outside the union and hire his own agent and is harmed as a result, the union could say, "I told you so."

Tuesday, November 21, 2006

A Revolution Against David Stern and Creeping Orwellianism?

Dictatorships are never popular, at least in hindsight. They always seem to crumble as people tire of losing their freedom and being told what to do. Perhaps that is why Victor Hugo once said,"When dictatorship is a fact, revolution is a right."

While events over the last week do not necessarily suggest a brewing "revolution" against NBA commissioner David Stern, they do indicate that professional sports' most powerful and arguably controlling commissioner may be headed for some rough waters. Here are some of the key events:

I. Nutrition, Power, and Going Around Collective Bargaining

As detailed by Liz Robbins in the New York Times, the National Basketball Players Association, without the permission or acquiescence of the NBA, has entered into a one-year promotional agreement with Abbott Nutrition. The terms of the deal are not terribly earth-shattering, but the motivations of the NBPA are: the NBPA is tired of the NBA unilaterally imposing rules, such as with the dress code and the new ball:
The union’s unilateral action — albeit over energy bars and protein shakes — comes as [NBPA Executive Director Billy] Hunter is voicing strong objections to the N.B.A.’s actions. He said he was frustrated that the league had not consulted the union on decisions ranging from the dress code to the new ball to the officials’ crackdown on complaining. If the agreement with EAS is not a pre-emptive strike, then it is a sign of an increasingly strained relationship between the union and the N.B.A.

“A lot of that has been precipitated by the league, the moves that the commissioner has decided to make and implement — many we feel are beyond scope of the collective bargaining agreement,” Hunter said. “At a minimum, we should have been consulted. As a result, maybe I feel less compelled to consult them on things.”

II. Working Conditions, Race, and Unfair Labor Charges

The NBA's insistence on using a new kind of basketball with different microfibers has drawn harsh rebuke from a number of players. Basically, a lot of players hate the feel of the new ball and believe it is hurting their game. But the NBA and Stern in particular believe the new ball looks nice and is a better visual. Henry Abbott over at True Hoop has all of the details.

Last week, Mitch Lawrence of the New York Daily News reported that the NBPA plans to file an unfair labor charge over this new ball. The gist of their beef is that the ball adversely affects their working conditions. Lawrence reports that the NBPA is also opposed to various other new rules implemented by the NBA without the players' consent. Some of the rules seem like they belong in George Orwell's 1984:
When the Knicks played the Wizards at the Garden last night, there was a newly assigned official who was at the arena for the expressed purpose of watching for players pulling their jerseys out of their pants when they came out of the game. As of this season, that move is illegal and subject to fines. Those same set of eyes were looking for players wearing rubber bands with their names on them. Anyone caught displaying those would be subject to a call from the league, with a warning to stop. That same spy was busy during the playing of "The Star-Spangled Banner," watching for players chewing gum and shifting as they stood in line, which have been outlawed . . .
Billy Hunter had some especially harsh words for Stern in Lawrence's piece:

"I've never seen a group of rules that has upset the whole group of players like these have. I normally have to really work on galvanizing the players for our next collective bargaining period. Not this time. I've heard from all the marquee ballplayers . . . Kevin Garnett, Kobe Bryant, Steve Nash. Our guys are feeling stifled."

"The image problem is a subtle way of talking about black ballplayers and how they appear to the populace. When we had our last round of negotiations, David told me that he was consulting with one of President Bush's political consultants. The issue was, what they can do to make the game and players more appealing to the red states?"
As reported in this week's Street and Smith's Sports Business Journal, agent Bill Strickland seems to agree with Hunter that Stern has too much unilateral power: “I definitely think he has too much power. ... We’ve had situations where we’ve talked about freedom of speech issues relative to tattoos and content of responses to questions postgame, so I don’t think there’s any question about it."

III. NBA Owners Growing Tired of Stern's Unilateralism

The greatest challenge to Stern might come from within. According to the Philadelphia Inquirer, when Charlotte Bobcats owner Robert Johnson--arguably one of the most respected and successful businesspersons in America--challenged Stern at the latest Board of NBA governors meeting, Stern "went ballistic." Here are the details:
The muzzling of Mark Cuban by the NBA did not go over unanimously at the recent Board of Governors meeting. We hear Bobcats owner Bob Johnson, while not necessarily leaping to Cuban's defense, did ask David Stern if such draconian measures - giving the Commish the power to suspend any owner who disparages the league publicly - were in everyone's best interests. And shouldn't this be handled by a committee of owners instead of by Stern alone?

Then, according to two sources, when Johnson further suggested that this was a personal matter between Cuban and Stern that the two of them should settle, Stern went ballistic, telling Johnson that this was a league matter, not an individual one, and that the value of investments such as Johnson's $300 million to get the Charlotte expansion franchise were hurt when Cuban constantly belittled the on-court product. In the end, Stern got his way.

Will Stern be ousted? There is no tangible evidence, but his recent behavior suggests that his dictatorial powers might have gone too far. Embarrassing Bob Johnson in front of his fellow owners was probably not a good idea and will seemingly have some consequences down-the-line.

No matter the outcome, it's good to see the NBPA become more vigilant in protecting the players' interests. The conclusion of my article The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor & Employment Law 819 (2006) advocates such an approach. We'll see how far they are willing to fight.

Update: See True Hoop, Jones on the NBA, RaptorsAddict, and PistonsForum, for some thoughtful reactions. Also see the comments below, which are terrific (and thank you all for taking the time to comment, it is much appreciated).

Monday, November 20, 2006

McCain-Feingold and Shays-Meehan for College Sports? The NCAA's Hard and Soft Money

Last week, NCAA President Myles Brand wrote a 25-page letter to the House Ways and Means Committee arguing that the NCAA deserves its tax-exempt status. According to Brand, the NCAA is foremost about education. We've examined the validity of this claim on numerous occasions.

Will Li e-mails some great commentary about Brand's letter. Will suggests that we might want to re-conceptualize how we look at NCAA funding through "hard money" and "soft money" lenses:
I wonder how Brand justifies things like 7 figure salaries (Charlie Weis) and/or exorbitant stadium expenditures (Texas/ HDTV Screen)? The article says he does (by saying that coaches are paid commensurate to other highly recruited faculty? Is that true?).

It seems to me that the conflict isn't between federal funding and TV rights, though.

The real problem is that, to use an analogy, there's so much soft money in the system. In that analogy, if college sports and the NCAA are a party or a candidate, the hard money is the money they collect from sponsors and ads and television rights, the amounts of which should theoretically be publicly available. But (correct me if I'm wrong), we have no way of knowing how much boosters are spending on donations, incentives, athlete recruitment and other in-kind contributions to the schools.

I think what the NCAA needs is an equivalent to McCain-Feingold.
While NCAA rules obviously limit boosters (see e.g., Sacrificial Gyro? Pete Carroll's Big Fat Greek Recruiting Methods), do we know how much they actually provide? And to whom? And when? Are boosters a less-detectable way for schools to get what they want, much like, until McCain-Feingold and Shays-Meehan, financial contributions to political parties had been a less-detectable way for politicians to get what they want?

New Sports Law Scholarship

New this week:
Jonathan C. Benitah, Student article, Anti-scalping laws: should they be forgotten?, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 55 (2005)

Christian Dennie, Is Clarett correct? A glance at the purview of the antitrust labor exemption, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2005)

Bennett Liebman, Reversing the refs: an argument for limited review in horse racing, 6 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 23 (2005)

Cubs Sign Alfonso Soriano for 8-Years, $136 Million: Does His Age Matter?

The Chicago Cubs have signed Alfonso Soriano to an 8-year, $136 million contract. The free agent outfielder had what many consider to be an excellent 2006 season, hitting 46 homers, 41 doubles, 95 RBIs, and stealing 41 bases. On the other hand, he batted an uninspiring .277, struck out 160 times, and his OPS of .911, while impressive, was only 13th in the National League. But the Cubs haven't won a World Series since 1908--the 100 year anniversary looms--and fresh off a 66-96 season, it's probably fair to assume that GM Jim Hendry has to make a splash this off season for his own job security.

Soriano's contract is the fifth-largest in MLB history, behind Alex Rodriguez ($252 million for 10 years), Derek Jeter ($189 million for 10 years), Manny Ramirez ($160 million for eight years) and Todd Helton ($141.5 million for 11 years).

But what makes Soriano's contract so interesting is that he'll be 31-years-old when the 2007 season begins, and presumably in the latter portion of his prime. In contrast, when they signed their mega-deals, the players noted above were in, or about to enter, their primes: Alex Rodriguez was 26, Derek Jeter was 27, and both Todd Helton and Manny Ramirez were 28. Granted, their contracts--other than Ramirez's--were for longer terms than Soriano's, but at least their employers were clearly paying for what was to come.

So are the Cubs paying Soriano more for his past accomplishments? That begs the question of when a player's prime occurs. Seattle Mariners GM Bill Bavasi says it begins at age 27. Kevin Whitaker of Between the Lines says it's between ages 26 and 30, with age 27 typically a player's peak year. Ron Cook of the Pittsburgh Post-Gazette says it's between ages 28 and 32.

Economics professor J.C. Bradbury has conducted some empirical research on baseball players' primes and he also links to some other studies (which generally find that players peak between ages 26 and 28). Bradbury finds that most players peak at age 29, although superstars tend to peak between ages 31 and 32.

Regardless of when a player's prime occurs, Soriano's career path will not necessarily follow the typical trajectory. In fact, he'll probably continue to put up excellent numbers for several years to come, and even if he is no longer a 40/40 threat by age 34 or 35, he could still be a very productive player--34-year-old Manny Ramirez is still one of the most feared hitters in baseball and 36-year-old Jim Thome hit 42 homeruns last season.

But an 8-year, $136 million contract for a 31-year-old still seems very risky, especially one whose speed is such a significant portion of his value. Then again, if the Cubs win the World Series with Soriano, there is no doubt the fans will think he was worth every penny.

Update: See Jonathan Weiler's remarks on Sports Media Review.

Friday, November 17, 2006

WSJ Law Blog on the Michigan-Ohio State Game

The WSJ Law Blog has an amusing post entitled, "Ohio State v. Michigan: The Legal Edition." I must say, here at the border of Michigan and Ohio, it's definitely the event of the month, and it's nice to know people are paying attention even in New York! Law Blogger Peter Lattman has provoked an email exchange and a friendly wager between the deans of Ohio State's and Michigan's law schools (which, if you read it too closely, takes a bit of the fun out of the upcoming game).

Judge Denies Russian Team's Request for Injunction in Malkin Suit

Here's my monthly update on the Malkin lawsuit. According to USA Today reporter Kevin Allen, in rejecting Metallurg's request for an injunction to prevent Evgeni Malkin from continuing to play for the Pittsburgh Penguins, U.S. District Court Judge Loretta Preska said that the Metallurg would not likely prevail on the merits because she believed that the NHL "would be able to demonstrate" that the league's transfer fee policy was collectively bargained with players, which makes it "immune" from antitrust scrutiny."

HUH??? This is the first time I have ever heard that the league and the union collectively bargained for a transfer fee policy. They can bargain all they want about something, but since when does the non-statutory labor exemption preclude alleged restraints on competition that primarily affect parties outside the collective bargaining relationship? [Oh well, I love reading decisions involving the interplay between antitrust law and sports.]

I am interested in reading whether Judge Preska felt that the Mettalurg is unlikely to prevail on the merits of its tortious interference claim. But in any event, I think denying the injunction is the right result for a completely different reason; that being that the Russian teams "are unlikely to be able to prove that they cannot be compensated by money damages." As the judge properly noted, "These cases are always about money, the only question is how much."

Thus, the Mettalurg will still have its day in court. They just can't stop Malkin from playing right now.

Thursday, November 16, 2006

What's the Proper Role of Unions in Disciplining Agents?

Last January, I discussed the NFLPA's efforts to impose a 2-year suspension on sports agent David Dunn. The NFLPA's suspension was put on hold when Dunn filed for Chapter 11 bankruptcy protection, which automatically stays administrative actions against the debtor. Liz Mullen of Street & Smith's Sports Business Journal has an interesting piece in the Oct. 23-29 issue ("NFLPA's vote to suspend Dunn shows it will take on big agents"). Mullen reports that Dunn's bankruptcy proceeding was dismissed, and Dunn said that he will appeal the suspension to the NFLPA's arbitrator, Roger Kaplan. The NFLPA is hoping that a hearing can be scheduled this month.

Mullen also notes that the NFLPA, which appears to be the only one of the four sports unions that actively investigates and disciplines agents for violating its rules of conduct, has never suspended an agent with as many big-name clients as Dunn has. Two of Dunn's clients spoke out against the suspension:
Drew Bledsoe: "It's ridiculous. There is no reason for the [players association] to be seeking punishment against Dave after so many NFL players freely chose Dave to continue as their representative after he left Leigh Steinberg's firm to start Athletes First."
John Lynch: "The decision to discipline Dave is misguided and completely unjustified. He did nothing wrong, and frankly, I am astounded that the union didn't call me, one of its members, to learn the truth before taking this step."
LaVar Arrington has echoed similar statements as Bledsoe and Lynch in the context of the union's pursuit of his agent, Carl Poston, for malpractice allegedly committed by Poston in the negotiation of Arrington's contract with the Redskins, which I discussed last September here. The NFLPA released in a statement:
"We have six players on our disciplinary committee and a majority of them believe that Dunn's actions violated our agent regulations. The committee is not disciplining Dunn for anything he did in representing Drew Bledsoe, John Lynch, or any of his other active clients. The discipline is, instead, because he, among other things, failed to properly represent a former client and improperly interfered with another agents' clients."
Should the union only get involved when a player (or players) files a grievance against a particular agent? Or should the union also be proactive in disciplining agents even when the players are against it? Mullen notes that many agents have been waiting a long time for Dunn to be suspended. So Dunn's competition is obviously all for it because then there will be a feeding frenzy on all of Dunn's clients, which in and of itself fosters unethical behavior in the form of client solicitation and providing improper inducements. If David Dunn was in fact stealing clients from Leigh Steinberg, should the union be concerned about that behavior or is that something that should just be left for Dunn and Steinberg to resolve between themselves?

Wednesday, November 15, 2006

New Study Shows Public Financing of Stadiums Lowers Ticket Prices

A newly released study suggests that, at least the NFL context, public financing of stadiums leads to lower ticket prices. The paper, The Use of Public Funds for Private Benefit: An Examination of the Relationship between Public Stadium Funding and Ticket Prices in the National Football League, by Matthew Brown (South Carolina), Daniel Rascher (USF), and Wesley Ward (Ohio), can be downloaded free of charge from this site. Here's part of the paper's abstract:
The purpose of this study was to examine the relationship between the use of public funds to build stadia and the profit maximizing goals of National Football League (NFL) franchises. A hypothesis was formulated that stated the impact of the public share of the construction cost would have no effect on relative ticket prices for those that consume the product. The cross-sectional data for a ticket price model, which consisted of seasonal data from every NFL team to play from 1991 through 2003, was investigated. The results showed an increase in public funding by 10% lowers ticket prices by 42 cents. As shown, the bulk of the variation in ticket prices was due to a general increase over time and MSA per capita income.

Tuesday, November 14, 2006

Randy Moss and Dropped Passes: Stone Fingers or Workplace Unhappiness?

Oakland Raiders' wide receiver Randy Moss had an interesting explanation when asked why he has dropped so many passes this season:
"Maybe because I'm unhappy, and I'm not too much excited about what's going on, so my concentration and focus level tends to go down when I'm in a bad mood. So all I can say is if you put me in a good situation and make me happy, man, you get good results."
It would be easy to criticize Moss for those remarks. People hate it when others, especially those they don't know, make excuses for under-performing. In that same vein, employees often feel implicit pressure to show up and do a good job at work, even if they are feeling under-the-weather or simply sad.

This seems especially true in the context of professional sports. Just think about what frequently happens when a player "takes too long" to come back from an injury: the player is derided by fans and media as "soft" or "weak." Players' earning capacity can be adversely affected when they develop a reputation for "not playing hurt," a point raised by Sports Illustrated's Peter King in a column about former New York Giants cornerback Phillippi Sparks.

Sometimes coaches supply the same criticism. New England Patriots' fans know that all-to-well from 10 years ago, when they heard Bill Parcells' ungracious reply to a question about rookie wide receiver Terry Glenn's hamstring injury: "She's making progress." Oakland Raiders' coach Art Shell seems just as skeptical about Moss. When asked about Moss attributing his unhappiness to his poor play, Shell said, "You're paid to play a game you've played for many years and that you love and once you hit the field, you compete. That's the way Art Shell sees it." Aside from referring to himself in the third-person, Shell probably said what a lot of coaches would say: toughen up, Randy!

But if you think about it, don't Moss's remarks make some sense? After-all, we can all relate to being distracted and affected by personal matters or difficult workplace environments, and it's a lot harder to do things in those settings. So why shouldn't Moss use unhappiness as an excuse?

Legal scholars have been thinking about these very phenomena. Just a few weeks ago at the colloquium on labor and employment law scholarship at Marquette Law School, I heard Temple Law professor Peter Huang deliver a talk on the implications of happiness research on employment law, a subject that he is writing an article about with Marquette Law professor Scott Moss (no relation to Randy!). One such implication is that employees are more likely to discriminate others in the workplace when they are unhappy. So happiness really does matter.

That point has also been made over at Health Law Prof Blog, where Cincinnati Law professor Betsy Malloy cites a study of attorneys' happiness which found:
Lawyers are 3.6 times more likely to be depressed than members of other professions, and it’s not just because their jobs are more stressful. For most people, job stress has little effect on happiness unless it is accompanied by a lack of control (lawyers, of course, have clients to listen to) or involves taking something away from somebody else (a common feature of the legal system).
Books have also been devoted to how happiness can affect our job performance. Daniel Gilbert's Stumbling on Happiness is perhaps the leading book on the topic. Gilbert incorporates a great deal of social psychology, and explains how what we think makes happy really doesn't, and that actually does make us happy is often beyond our consciousness.

But back to Randy Moss. We know that unhappiness can impair workplace performance, particularly when it is accompanied by a lack of control (and Moss has the not-so-magnificent Andrew Walter as his quarterback: he of the lowest quarterback rating in the NFL). So is Moss really making an excuse or is he just being honest? Would we rather him say that he is "fully responsible" for the dropped passes when in fact his emotional health may be a real cause? If his fingers were broken--a physical injury--we would certainly understand the dropped passes, so why not let an emotional injury also excuse those drops?

NFL Wins Insurance Dispute Over Maurice Clarett Case

The legal bill associated with fighting off Maurice Clarett's challenge to the NFL's age restriction? Just eight hundred and fifty thousand dollars, according to a New York Appellate Division opinion released today in NFL v. Vigilant Insurance Company, 2006 WL 3290617 (N.Y.A.D. Nov. 14, 2006). Vigilant issued an "executive protection insurance policy," which provided
the NFL with claims-made liability coverage and defined "Loss" to include indemnification for defense costs. The insuring clause required Vigilant to pay for "all Loss for which [the NFL] becomes legally obligated to pay on account of any Claim first made against the [NFL] during the Policy Period ... for a Wrongful Act." The policy defined "Wrongful Act" as "any error, misstatement, misleading statement, act, omission, neglect or breach of duty committed ... by [the NFL] before or during the policy period."
However, the policy contained an "employment exclusion", relieving the insurer of responsibility
"for Loss on account of any Claim made against [the NFL] ... for any Employment Practices."
Vigilant denied that it was responsible for the costs of defending Clarett's antitrust suit on the ground that the suit concerned the NFL's employment practices and was thus subject to the insurance contract's employment exclusion. The NFL sued Vigilant in New York state court, arguing that the exclusion applied only to employment law claims (such as FLSA claims, employment discrimination claims, and the like), not to antitrust disputes.

After a lower court granted Vigilant's motion to dismiss, the appellate division reversed. The court opined that
Clarett's antitrust claim against the NFL did not arise from any actual or prospective employment relationship with the NFL, as it is undisputed that NFL players are employees of individual NFL teams, not the NFL itself.
Interpreting the exclusion against the insurer, the court ruled that Vigilant's motion to dismiss should not have been granted.

Monday, November 13, 2006

Alabama Suing Sports Artist Over Crimson Tide Artwork (Update)

This Sunday’s New York Times included a nifty front page article on a pending lawsuit against Birmingham sports artist Daniel A. Moore filed by the University of Alabama. Our own Greg Skidmore covered this dispute back in April ’05 in this post. Moore has made what appears to be a pretty good living painting action shots of Alabama football games. His gallery’s web site is called Alabama Crimson Tide Prints.

As Greg predicted, Mr. Moore has now moved to dismiss the case by arguing that the University lacks a right to control depiction of events of historic or public significance.
Mr. Moore has asked Judge R. David Proctor of the Federal District Court in Birmingham to dismiss the case on First Amendment grounds. His brief cited a decision of the federal appeals court in California ruling that a trademark owner “does not have the right to control public discourse” if “the public imbues his mark with a meaning.”

After the citation, Mr. Moore’s lawyer, Stephen D. Heninger, added a parenthetical aside. “Who could argue with a straight face,” he asked, “that the cultural significance of Alabama football has not assumed such a role?”
The problem for Mr. Moore, is that unlike in other cases favoring artists’ rights, which may have involved slightly more transformative expression, his Alabama football paintings tend to be similar to the photographs he uses to compose his work.

I’m not sure I share all of the sentiments expressed in the article. For instance:
“This lawsuit is the equivalent of the Catholic Church suing Michelangelo for painting the Sistine Chapel,” said Keith Dunnavant, an Alabama alumnus and the author of “Coach: The Life of Paul ‘Bear’ Bryant.”
The difference, of course, is that Michelangelo was commissioned by Pope Julius II to paint the Sistine Chapel, whereas Mr. Moore has not been commissioned by the University of Alabama.

Another questionable suggestion:
James Glen Stovall, who taught journalism at the university for 25 years, said only one sort of person would support the suit.

“I can see why, if you’re sitting in a roomful of lawyers, you might come to that conclusion,” Mr. Stovall said. “But no one outside of that room would say: ‘Hey, that’s a good idea. Let’s sue Daniel Moore.’ ”
To me, that does not give enough credit to the University’s claims. The University
seemed to take particular offense at Mr. Moore’s use of his paintings on merchandise like coffee mugs and calendars.
What’s really driving this case? Probably not Mr. Moore’s sale of a $25,000 watercolor or a $100 print, but rather his sale of a $2.00 coffee mug that eats into the University’s merchandising revenues. My guess is that, if the University survives Moore’s current motion to dismiss, the case will be headed towards some sort of settlement in which Moore ceases the sale of mugs and other trinkets emblazoned with his art in exchange for being allowed to continue selling the big ticket items.

Sunday, November 12, 2006

Tony and the Chase

The recent success of Tony Stewart and his failure to make the Chase pretty much shows what such a contrived piece of crap NASCAR's playoff is. I preferred the old system but with a minor change--make victories count more. As it stands, Smoke is the best driver out there. This season will go down as one of his best, and the Cup champion will be largely overlooked. The Chase is a joke.

Saturday, November 11, 2006

Blog Overhaul

I've made a few changes to the blog here. Most are minor, but the most noticeable one will be my changing the flag at the top to one without the confederate battle eblem. I did this because I was concerned that some readers might think I am a racist or a member of the KKK. I'm not either of these.
For me, the confederate battle emblem is a sign of regional affiliation. I am a southerner, and I feel no shame in this. I love where I am from. But with that said, I must also acknowledge that the emblem is also considered racist by both hate groups and black people. I would prefer to avoid this mixed message. This doesn't mean that I am taking a turn towards political correctness because I will continue to say whatever the fuck I feel like. But I do not believe in racial collectivism, and I don't want to send the message that I am.
I am still working on the Alma Jean story which a lot of people are eager to finish reading. I am trying to get this done between my many other projects, but I am getting back to regular writing after a layoff. I think many of you will be satisfied with the result of my efforts.

Thursday, November 9, 2006

Subscribe to Sports Law Blog through Google

You can now subscribe to Sports Law Blog through your personal Google homepage or Google Reader. Here is the link:

Add to Google

If you add Sports Law Blog to your Google homepage, you can drag its content into your main Google page, or you can keep it under a separate tab. If you use Google Reader, you will need to create a free Google account.

Thanks to Robby Forbes, Editor-in-Chief of the Virginia Sports and Entertainment Law Journal, for alerting us of this Google option. We are clearly not the most "technical"/computer guys around, so we always appreciate suggstions that would improve our blog and would be easy for us to implement.

Larry Brown Settlement Terms: $18.5 million

Cablevision, the parent company of the New York Knicks, has disclosed the terms of its previously confidential settment with ex-coach Larry Brown. Brown, who had filed a claim for $53 million ($41 million due under the contract and an additional $12 million in damages), accepted an offer of $18.5 million. While this is less than half of what he claimed he was due, it is still a nice chunk of change for doing no work.

You can read the entire 10Q at the SEC's EDGAR database here, although the only relevant paragraph is:
On June 22, 2006, the New York Knicks, a division of Madison Square Garden, L.P., notified the then-head coach of the Knicks, Larry Brown, that his employment had been terminated with cause pursuant to his employment agreement with the Knicks. Mr. Brown disputed the Knicks’ right to terminate his employment with cause and the matter was referred to the Commissioner of the National Basketball Association (“NBA”), who had the authority under the agreement to resolve all disputes. On October 30, 2006, the parties reached a settlement of this matter under which the Knicks agreed to pay Mr. Brown $18,500 of the disputed amount in connection with his employment agreement, which amount has been accrued for in the accompanying financial statements as of September 30, 2006.
All dollar amounts are listed in "thousands of dollars," so you have to add three zeroes to the figure listed. You know that writing this paragraph was the highlight of some securities lawyer's week.

For previous Sports Law Blog writing on this dispute, see:
Letter to Mr. Stern: Larry Brown's Award Should be All or Nothing (September 30)

Larry Brown is Grieving (June 29)

Is There a Disney Case Against Cablevision Over the Larry Brown Contract? (May 16)
HT to UT Law 3L and Sports Law Association Prez Justin Stone for calling this news to my attention.

Wednesday, November 8, 2006

Paper Release: Fantasy League Use of Players' Names and Stats

Last August, I discussed the ruling of the Eastern District of Missouri in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., which held that fantasy league operators do not violate the players' right of publicity by using their names and performance statistics without consent. I'm pleased to announce that my recently completed article entitled, The Use of Players’ Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, will be published in the Winter Issue of Penn State Law Review. An unedited draft of the article can be downloaded here. I encourage you to read it and I welcome your comments.

My article contains an in-depth analysis and application of right of publicity law to fantasy sports leagues, including a discussion about the business and economics of the fantasy sports league industry, the policy considerations involved and the application of the First Amendment. My article explains why the federal district court wrongly decided the case, and attempts to define workable standards in a confusing area of law. The article will be published in February, and the Eighth Circuit Court of Appeals is scheduled to hear the case in late spring.

Michael McCann is currently working on a paper entitled, The Wonderlic Test for the NFL Draft: Linking Stereotype Threat and the Law, which can be downloaded from the link to Michael's articles on SSRN. Michael was a guest at my law school today, and each of us presented our papers. I want to thank Michael on behalf of our student body and faculty, who thoroughly enjoyed his presentation.

Bidding for Matsuzaka Poses Interesting Legal Issues

Today at 5:00 p.m ET, the bidding rights to Japanese pitcher Daisuke Matsuzaka will end. At that time, MLB will inform the Seibu Lions of the winning bid — without identifying the team — and Seibu has until Nov. 14 to accept or reject the bid. The team with the winning bid will then have 30 days to negotiate a contract with Matsuzaka and his agent Scott Boras. If no deal is reached, Matsuzaka returns to Japan and the major league team will be refunded its posting fee, which is predicted to reach as high as $30 million. See Bob Nightengale, USA Today, Matsuzaka market nears close.

ESPN Magazine writer Buster Olney raises a fascinating issue:
The posting system is deeply flawed. For example, here's one sabotage scenario that might interest a team like Baltimore, which is faced with the possibility that Matsuzaka will land with either of the big market monsters in its division, the Yankees or the Red Sox. The Orioles could post a huge bid -- say $50 million -- and blow everybody else out of the water. With exclusive negotiating rights, they then could offer Matsuzaka a take-it-or-leave-it, strategically structured bid, like a 10-year, $5 million-per-year deal. Matsuzaka and agent Scott Boras, with just 30 days to negotiate and with no ability to generate a competing bid from another major league team, would have the stark choice of taking the Orioles' lowball offer or remaining in Japan. If Matsuzaka came to the U.S. under those circumstances -- and that would seem very unlikely -- the Orioles would have a frontline pitcher for less than the total package that everybody expects it will cost to get Matsuzaka. And if he were to stay in Japan after such a lowball offer, the Orioles would get their posting fee back and would still serve their own purposes, as well, by keeping him out of the hands of the Red Sox and Yankees.
I suppose the one "check" on the bidding system is that the MLB team that gets the winning bid would have an implied obligation to negotiate in good faith with Boras. But "good faith" is one of the most difficult concepts to apply in contract law -- What does it mean and how do you prove a breach? I suppose the winning team could argue that the bid price should be taken into account when negotiating Matsuzaka's salary, and thus the bid price should be included with the player's negotiated salary in determining Matsuzaka's fair value. But the counter to that would be that the bid price is merely consideration paid to the Japanese team for the rights to the player, and that his value, for purposes of good faith negotiation, should be looked at separately. If so, what is the standard for determining his fair value? Is Boras entitled to an amount based upon what the player would get in an open free agent market? If so, that value would be difficult to ascertain when the bid process completely eliminates the ability to determine his value in an open market. Or is a portion of the bid price consideration for the MLB team not having to negotiate with other teams in an open market, and thus the player is not entitled to an amount equal to what Boras could get in an open market?

Now, switch gears, because there is another interesting legal issue arising out of the bid process for Matsuzaka. Boras represents the top pitchers competing in the open free agent market this year: Zito, Maddux and Weaver. It's definitely in Matsuzaka's best interest to sign with an MLB team than to go back and play in Japan, even if the contract is something less than what Boras could get in an open market. But is it in the best interest of each of these three pitchers for Matsuzaka to sign right now? Because if Matsuzaka signs, it would eliminate a team who is in dire need of a premier starter from otherwise bidding in an open market for their services in a few weeks, which would obviously impact the bargaining leverage of each of them in the open market. More to the point, what if the team that gets the winning bid is a free-spending team like the Yankees or Red Sox? How would Boras juggle the best interest of each of the four players in that scenario?

UPDATE (Nov. 14): It was reported yesterday that the Red Sox made the highest bid at $42 million! This bid reportedly far exceeded any other team's offer.

UPDATE (Nov. 15): It has just been reported that the Red Sox actually bid $51.1 million for the negotiation rights, and that the Seibu Lions (obviously) accepted the bid.

Monday, November 6, 2006

The Origins of the List of Baseball Greats in Flood v. Kuhn

One of the oddest things about the Supreme Court case of Flood v. Kuhn, where the court reaffirmed baseball's antitrust exemption, is the following passage from Justice Blackmun's opinion:
Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.
The list is not only endless, but a classic example of the kind of sickening sentiment that infects so much of American sports jurisprudence. There are a lot of great stories about this list, such as a clerk from another chamber jokingly inquiring as to the omission of a particular player and receiving a detailed memorandum justifying the player's exclusion a few days later, as well as the story that Justice Marshall originally planned to dissent from the opinion given the list's omission of any African American players (some were subsequently added).

Now, via the Volokh Conspiracy, I've learned of an exciting new paper, Blackmun's List, by Northeastern University law professor and former Baseball Hall of Fame scholar-in-residence Roger Abrams. Along with a recent book on the Flood case, this article promises to enhance understanding about a classic opinion from sports law. You can download the paper for free from this link.

In skimming the paper, it's obvious that Professor Abrams is amused by Blackmun's list. He refers to it as a "curious and quite exceptional paean to the appellee in what was a critical sports law decision . . . ." While the paper is still in draft form (i.e., it contains some odd formatting, some blanks to be filled in at a later date, and will likely go through some organizational reworking), it does offer some interesting perspectives from a veteran sports law teacher on this odd passage and some of the names on the list. I look forward to reading the finished version.

New Sports Law Scholarship

New this week is a collection of articles from last spring's Willamette Law Review symposium on "The Future of Sports Law":
Michael A. McCann, Social psychology, calamities, and sports law, 42 WILLAMETTE LAW REVIEW 585 (2006)

Jeffrey Standen, The beauty of bets: wagers as compen-sation for professional athletes, 42 WILLAMETTE LAW REVIEW 639 (2006)

Jack F. Williams, The coming revenue revolution in sports, 42 WILLAMETTE LAW REVIEW 669 (2006)

Chad Ford, Peace and hoops: basketball as a role player in sustainable peacebuilding, 42 WILLAMETTE LAW REVIEW 709 (2006)

Richard T. Karcher, Solving problems in the player representation business: unions should be the “exclusive” represen-tatives of the players, 42 WILLAMETTE LAW REVIEW 737 (2006)

Timothy Davis, Regulating the athlete-agent industry: intended and unintended consequences, 42 WILLAMETTE LAW REVIEW 781 (2006)

Maureen A. Weston, Internationalization in college sports: is-sues in recruiting, amateurism, and scope, 42 WILLAMETTE LAW REVIEW 829 (2006)

James A.R. Nafzinger, The future of international sports law, 42 WILLAMETTE LAW REVIEW 861-876 (2006)

Friday, November 3, 2006

CBS Mostly Loses Case Against Former Broadcaster Brent Jones

Yesterday, Judge Chin of the U.S. District Court for the Southern District of New York issued an opinion dismissing the bulk of the CBS network’s claims against former football commentator and one-time 49er tight end Brent Jones. Jones walked away from CBS in the middle of week four of the 2005 NFL season, purportedly to spend more time with his family. The problem, in CBS’s eyes, was that Jones had been paid on a weekly basis between January and October, 2005 (based on an annual salary of $200,000). Yet at the time he quit, Jones had only called three games that season (out of 17). CBS sued to recover 14/17 of the money it had paid Jones.

In his opinion in CBS Broadcasting Inc. v. Jones, 2006 WL 3095916 (S.D.N.Y. Nov. 2, 2006), Judge Chin largely dismissed CBS’s breach of contract and unjust enrichment claims against Jones. The judge explained:
The Agreement does not reference the number of football games Jones was expected to call each year, nor does it contain a provision for the return of any payment to CBS in the event Jones terminated the Agreement prematurely. Rather, paragraph 19 of the Agreement provides in relevant part that: "If Contractor or Artist at any time materially breaches any provision of this Agreement ... CBS may ... reduce Contractor's compensation pro rata, and/or CBS may, by so notifying Contractor during or within a reasonable time after such period, terminate this Agreement." "[P]ro rata" is not defined.
Thus, some ambiguity:
Here, the Agreement is not wholly without ambiguity. It provides that in the event that Contractor or Artist breaches, CBS may "reduce Contractor's compensation pro rata," but it does not define "pro rata." Nonetheless, as between the two competing interpretations before the Court, I conclude that a reasonably intelligent and objective person could give the Agreement only one interpretation--that "pro rata" means a proportion based not on the number of games called out of seventeen, but rather, on the number of weeks out of the year the Agreement was in effect.

First, the express language of the Agreement undermines CBS's argument. . . . Second, the Agreement does not include any language to support CBS's position There is no reference to the number of games that Jones was obligated to call per year. Thus, there is no explanation for CBS's contention that Jones was obligated to call seventeen games, the number of games in the NFL's regular season. Furthermore, there is no provision in the Agreement for reimbursement in the event of a breach by Jones. The remedy set out in the Agreement is reduction and/or termination. CBS, in accordance with the Agreement, terminated the contract at the time of breach. If the parties had contemplated the extraordinary remedy of reimbursement in the case of a breach, they surely would have spelled that out in the Agreement.
Third, CBS's interpretation does not make sense. The number of games was not specified. There could have been more than seventeen games, including exhibition games, playoff games, and the Pro Bowl. Also, Jones's obligations were not limited to calling games. The Agreement references other duties, such as attending seminars, program conferences, and trade shows.
The court also dismissed CBS’s unjust enrichment claims, since under New York law there can be no claim in quasi-contract where a valid contract sets forth the parties’ rights.

The court did, however, preserve one small piece of CBS’s claim:
The amended complaint alleges that Jones improperly charged certain personal expenses to CBS, through his corporate credit card and otherwise. If any personal expenditures charged to CBS remain unpaid, Jones shall reimburse CBS. The Court is hopeful that the parties can resolve this issue themselves.

Drew Brees Wants No Part in his Mother's Political Campaign

New Orleans Saints quarterback Drew Brees has told Mina Brees, his mother and an Austin attorney, to stop using his picture in TV commercials while she runs as a Democrat for a spot on Texas' 3rd Court of Appeals that reviews civil and criminal cases. The commercial in question includes a picture of Drew Brees in a San Diego Chargers uniform (his former team) and notes Mina Brees' football ties, which includes being the daughter of a successful high school coach and the sister of a former University of Texas quarterback.

Drew says he called his mother and asked her to stop running the ads, and when she did not return his calls or stop using his image, his agent sent her a letter threatening legal action. According to Drew, the commercials were sending a message of, " 'If you don't know much about the election, vote for me because I know Drew' . . . and that is a shame because the political process should be decided on your credentials." But according to Mina, "everything in the ad was true" and she did not anticipate it upsetting her son. She said the connection to football is relevant to her campaign because through sports, her father, Ray Akins, taught her a strong work ethic that she would bring to a career as a judge. Mina says a version of the spot that omits references of Drew was taped last week and sent to TV stations last Friday.

I don't care to play the role of family therapist with this post. Instead, I want to focus in on Drew's agent "threatening legal action." In addition to sports law, I teach torts and this would make a perfect hypothetical exam question for my Torts II class where we discuss one of my favorite areas of the law, the right of privacy and defamation.

Drew would lose on defamation because there is no false statement in the ad (i.e it's a photo of Drew and Drew is actually Mina's son), nor is there anything being said about Drew that would be considered "defamatory" (i.e. that would subject Drew to hatred, ridicule, or contempt).

There are three potential right of privacy claims to analyze here: Right of publicity; misappropriation; and false light. Right of publicity is the "use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage." The misappropriation tort protects against intrusion upon an individual's private self-esteem and dignity (similar to a public disclosure of private facts claim), while the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. Here, there is no pecuniary loss to Drew and Mina has not reaped any financial gain from the use of Drew's identity. It would also be difficult for Drew to establish that Mina's use of his identity in trying to get elected as a judge resulted in any "commercial" advantage. Because Drew is a famous NFL quarterback and public figure, misappropriation would not be successful either because Drew would probably have a hard time convincing a judge or jury that the use of his name in the public arena intruded upon his private self-esteem and dignity resulting in emotional harm. A public disclosure of private facts claim fails for the same reason, and in addition because there are no "private" facts being disclosed in the ads.

Drew's best claim against his mother would probably be false light. For this claim, it is not necessary that the statements be defamatory; all that is required is that the defendant placed the plaintiff in a false light that would be "highly offensive to a reasonable person." Although the statements in and of themselves may be true, a cause of action can be established if the statement implies untrue and unfavorable acts taken, or views held, by the plaintiff. Here, for example, Drew could say that the use of his identity in the ads implies that he supports his mother's campaign, when in fact he does not. There is one big problem however....Texas, like some jurisdictions, doesn't recognize a separate cause of action for false light.

Oh well Drew, I tried my best....